BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> British Telecommunications Plc, R (on the application of) v Revenue and Customs [2005] EWHC 1043 (Admin) (25 May 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/1043.html Cite as: [2005] EWHC 1043 (Admin) |
[New search] [Printable RTF version] [Help]
CO/3503/2004 |
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
THE QUEEN (On the Application of BRITISH TELECOMMUNICATIONS PLC) |
Claimant |
|
- and - |
||
THE COMMISSIONERS FOR HM REVENUE AND CUSTOMS |
Defendant |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Timothy Brennan QC & Miss Nicola Shaw (instructed by the Acting Solicitor, HM Revenue and Customs, Somerset House, Strand, London WC2R 1LB)
for the Defendant
____________________
Crown Copyright ©
Mr Justice Lightman:
INTRODUCTION
FACTS
THE CONCESSION
"80. Recovery of overpaid VAT
(1) Where a person has (whether before or after the commencement of this Act) paid an amount to the Commissioners by way of VAT which was not VAT due to them, they shall be liable to repay the amount to him.
(2) The Commissioners shall only be liable to repay an amount under this section on a claim being made for the purpose.
…
(4) The Commissioners shall not be liable, on a claim made under this section, to repay any amount paid to them more than three years before the making of the claim.
…
(7) Except as provided by this section, the Commissioners shall not be liable to repay an amount paid to them by way of VAT by virtue of the fact that it was not VAT due to them."
"…
(4) No amount may be claimed under this section after the expiry of six years from the date on which it was paid, except where subsection 5 (below) applies.
(5) Where an amount has been paid to the Commissioners by reason of a mistake, a claim for the repayment of the amount under this section may be made at any time before the expiry of six years from the date on which the claimant discovered the mistake or could with reasonable diligence have discovered it."
"Exceptions to the three year time limit.
There is no time limit for correcting the following types of errors:
simple duplication of output tax:
tax point errors, that is where you have declared an amount of VAT on the return which immediately precedes or follows the return for which the amount was due. "
SKELETON ARGUMENTS
ISSUES
The Concession.
"to formulate policy in the interstices of the tax legislation, dealing pragmatically with minor or transitory anomalies, cases of hardship at the margins or cases in which a statutory rule is difficult to formulate or its enactment would take up a disproportionate amount of Parliamentary time"
per Lord Hoffmann in R v. HM Commissioners of Inland Revenue ex p. Wilkinson [2005] UKHL 30 at para 21.
INTEREST
"23. It should be borne in mind that, according to settled case-law of the Court, the right to a refund of charges levied in a Member State in breach of rules of Community law is the complement of the rights conferred on individuals by the Community provisions prohibiting charges having an effect equivalent to customs duties or, as the case may be, the discriminatory application of domestic charges, as interpreted by the Court of Justice. The Member State is therefore required in principle to repay charges levied in breach of Community law.
24. However, the Court has also observed on several occasions that the problem of disputing charges which have been unlawfully claimed or refunding charges which have been paid when not due is settled in different ways in the various Member States, and even within a single Member State, according to the various kinds of taxes or charges in question….
25. This diversity between national systems derives mainly from the lack of Community rules on the refund of national charges levied through not due. In such circumstances, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, second, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)."
CONCLUSION