18853
REPAYMENT CLAIM – made by recipient of the supply of a new motor cruiser which is claimed to be zero-rated – no tax paid to the Commissioners by the claimant and claim made more than three years after payment of the tax by the supplier – appeal dismissed

LONDON TRIBUNAL CENTRE

	JOHN PARKER	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

			Tribunal:	DR JOHN F AVERY JONES CBE (Chairman)
					JOHN ROBINSON

Sitting in public in London on 22 November 2004

The Appellant appeared in person

Ben Collins, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004

DECISION

1.	Mr John Parker appeals against a decision in a letter dated 20 August 2003 not to repay him a sum in respect of VAT on the supply of a new vessel registered as a motor cruiser and named The Aryani.  The Appellant appeared in person; Mr Ben Collins represented the Commissioners.
2.	At the start of the proceedings Mr Collins asked us to determine as a preliminary matter that the Appellant could not succeed in the appeal because he had not paid the VAT to the Commissioners and accordingly could not apply for a refund, and in any event his claim was made more than three years after the last payment of any tax and was covered by the three-year cap.  The Appellant asked us in any case to determine the appeal on its merits as the decision would be useful in other cases.
3.	We have concluded that, as we agree with Mr Collins’s contention, there would be no point in our dealing with the merits of the appeal, which would involve dealing with such matters as whether the gross tonnage is not less than 15 tons (about which figures of 9.72, 24, 12.82 and 21.42 tons have been claimed at various times), and whether the vessel is designed or adapted for use for recreation or pleasure.
4.	The only facts that we find are:
(1)	The Appellant ordered the vessel from Heritage Boat Builders Limited under a contract dated 9 May 1998 which was signed by the Appellant and Miss J Pritchard on 12 May 1998.  The contract provided for stage payments.
(2)	The bill of sale for the vessel is dated 14 May 1999 at which time we infer it was complete and the final stage payment had been made.
(3)	The Appellant telephoned the Commissioners’ National Advice Service on 19 July 2002 who told him to write which he did on 22 July 2002.
(4)	No claim for repayment has been made by Heritage Boat builders Limited.
5.	Section 80 of the VAT Act 1994 provides:
“(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.
…
(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.”
6.	The Appellant has not paid any amount to the Commissioners and so cannot make any claim.  The supplier has not made any claim and so any claim would be made more than three years after the tax was paid.  Marks and Spencer v Customs and Excise Commissioners (Case C-62/00) [2002] STC 1036 was referred to by the Appellant but the three year cap was enacted on 19 March 1997 and the events of this case are wholly after that date and so cannot be affected by the lack of any transitional provisions.  It is therefore clear that the Appellant cannot succeed in this appeal, and accordingly we are bound to dismiss it.
7.	The Appellant claims that he and the supplier were given conflicting advice by the Commissioners.  This is not something that we can look into but at the hearing the Commissioners provided the Appellant details of the Adjudicator who is the right person to look into such matters.

JOHN F. AVERY JONES

CHAIRMAN
RELEASE DATE: 29 November 2004

LON/03/1197