ELS Group Ltd, R (on the application of) v HM Revenue and Customs

ELS Group Ltd, R (on the application of) v HM Revenue and Customs

The Court held that the extra-statutory concession BB10/04 does not permit a retrospective choice to be taxed as an agent for VAT purposes; the choice must be made before or at the time of supply, as evidenced by invoices and VAT returns. ELS Group Limited did not make such a choice during the relevant period, and any inclusion of VAT in their rates was at best a contingency, not an operative election. The appeal was dismissed.

Parties
Appellant: ELS Group Limited; Respondents: The Commissioners for Her Majesty’s Revenue and Customs
Jurisdiction
England and Wales
Judgment Date
05 July 2016
Procedural Posture
Judicial Review / Appeal From Upper Tribunal (tax and Chancery Chamber) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
VAT, Extra Statutory Concessions, Employment Bureaux, Judicial Review, Retrospective Application of Tax Concessions
Tax Law Administrative Law VAT Extra Statutory Concessions Employment Bureaux Judicial Review Retrospective Application of Tax Concessions

Case Brief

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Parties

ELS Group Limited

Appellant

The Commissioners for Her Majesty’s Revenue and Customs

Respondents

Procedural Posture

Judicial Review / Appeal From Upper Tribunal (tax and Chancery Chamber) to Court of Appeal

Legal Issues

  1. 1 Whether the extra-statutory concession BB10/04 can be applied retrospectively to allow ELS Group Limited to be taxed as an agent for VAT purposes for past supplies
  2. 2 Whether ELS Group Limited made a timely and effective choice to be taxed as an agent under BB10/04 for the relevant period

Ratio Decidendi

The Court held that the extra-statutory concession BB10/04 does not permit a retrospective choice to be taxed as an agent for VAT purposes; the choice must be made before or at the time of supply, as evidenced by invoices and VAT returns. ELS Group Limited did not make such a choice during the relevant period, and any inclusion of VAT in their rates was at best a contingency, not an operative election. The appeal was dismissed.

Court Disposition

Appeal dismissed