18848

CLAIM – whether claim out of time under section 80(4) VAT Act 1994 – goods stolen, Commissioners assess the input tax claimed on the goods, insurers refuse to pay, claim against the solicitors for their handling of the claim against the insurers settled, claim for input tax then made –– out of time  – appeal dismissed

LONDON TRIBUNAL CENTRE

	SURINDER SINGH GANDHUM	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

			Tribunal:	DR JOHN F AVERY JONES CBE (Chairman)
					ELIZABETH MACLEOD CIPM

Sitting in public in London on 9 November 2004

The Appellant in person

Robert Kellar, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004

DECISION

1.	Mr S S Gandhum appeals against the refusal in a letter dated 11 February 2004 to pay a claim for input tax.  The input tax related to goods alleged to have been stolen that had been disallowed and assessed because he could not prove that they had been stolen on.  The Appellant appeared in person; the Commissioners were represented by Mr Robert Kellar.
2.	This seems to be a hard case.  The Appellant says that his van containing stock worth £70,000 was stolen in 22 November 1987.  The Commissioners disallowed the input tax on the goods alleged to have been stolen and assessed it on 23 November 1990.  The assessment was paid by instalments until 30 April 1992.  The insurers of the goods declined to pay.  The Appellant continued to pursue the claim for insurance against the loss, in the course of which his former solicitor was struck off.  Proceedings for damages for breach of contract or negligence against the firm of solicitors were settled at mediation for £43,400 (70 per cent of the claim) plus costs on 13 August 2003.  He immediately made a claim to the Commissioners for the input tax on 14 August 2003, which the Commissioners have refused on the grounds that the claim is out of time under section 80(4) of the VAT Act 1994.
3.	We find the following facts.
(1)	The input tax originally claimed on the goods alleged to have been stolen of £5,217.39 was assessed on 23 November 1990 as part of a total assessment of £7,999, and the assessment was finally paid on 30 April 1992.
(2)	Following settlement of the proceedings against his former solicitors he claimed the input tax on 14 August 2003.
4.	Mr Kellar contends that the claim is out of time under section 80(4) of the VAT Act 1994:
“(4) The Commissioners shall not be liable, on a claim under this section, to repay any amount paid to them more than three years before the making of the claim.”
Here the claim was made 11 years after the final payment of the assessment.  He also contends that the Commissioners do not have any discretion to waive the time limit, and, even if they did have, we have no jurisdiction to review it because section 83(t) limits our jurisdiction to:
“any claim for the repayment of an amount under section 80, an assessment under subsection (4A) of that section or the amount of such an assessment;”
5.	The Appellant contends that it is unfair that he should be caught by the change in the law imposing the three year cap in the circumstances where he has made the claim as soon as his claim against his former solicitors was settled, when it was settled on a basis that implies that the insurers of the goods would have paid at least £43,400 had the solicitors handled the claim properly.
6.	We are afraid that we consider that Mr Kellar is right.  The time limit in section 80(4) applies and, whether or not the Commissioners have any discretion, we do not have jurisdiction to review it.
7.	This does not mean that the Appellant has no other avenues of possible redress.  Mr Powley of the Regional Business Services South Regional Complaints Unit had suggested in his letter of 11 February 2004 refusing the claim that the Appellant could ask for the matter to be reviewed by the Regional Head.  During the hearing he accepted the Appellant’s oral request that this should be done.  If that fails, another possible avenue of redress might be the Adjudicator and the Commissioners will give the Adjudicator’s particulars to the Appellant.
8.	However, we are bound to dismiss the appeal.

JOHN F. AVERY JONES

CHAIRMAN

RELEASE DATE: 29 November 2004

LON/04/237