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United Kingdom VAT & Duties Tribunals Decisions |
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You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> Grieve v Revenue & Customs [2007] UKVAT V20149 (16 May 2007) URL: http://www.bailii.org/uk/cases/UKVAT/2007/V20149.html Cite as: [2007] UKVAT V20149 |
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20149
VALUE ADDED TAX zero-rating transport - qualifying ship replica Dutch barge with no cargo hold and with interior arranged for residential use whether "neither designed nor adapted for use for recreation or pleasure" no appeal dismissed VATA 1994 s30; Sch 8 Grp 8 Item 1 and Note A1(a); Sixth Council Directive (77/388/EEC) Arts 15.5 and 17.3
LONDON TRIBUNAL CENTRE
JOHN GRIEVE
Appellant
- and -
THE COMMISSIONERS FOR HER MAJESTY'S
REVENUE AND CUSTOMS
Respondents
Tribunal: DR NUALA BRICE (Chairman)
MS H FOLORUNSO
Sitting in London on 24 April 2007
Adrian Stott, Consultant, for the Appellant
Matthew Barnes of Counsel, instructed by the Solicitor for HM Revenue and Customs, for the Respondents
© CROWN COPYRIGHT 2007
DECISION
The appeal
The legislation
"1 The supply repair or maintenance of a qualifying ship or the modification or conversion of any such ship provided that when so modified or converted it will remain a qualifying ship."
"A1 In this Group-
(a) a "qualifying ship" is any ship of a gross tonnage of not less than 15 tons which is neither designed nor adapted for use for recreation or pleasure ."
The issue
The evidence
5 . A bundle of documents was produced on behalf of the Appellant and another bundle was produced by the Respondents. We heard no oral evidence.
The facts
The arguments
Reasons for decision
The Sixth Directive
"5 the supply, modification, repair, maintenance, chartering and hiring of the sea-going vessels referred to in paragraph 4(a) and (b) "
"(a) used for navigation on the high seas and carrying passengers for reward or used for the purpose of commercial, industrial or fishing activities ;
(b) used for rescue or assistance at sea, or for inshore fishing, with the exception, for the latter, of ships' provisions."
"17.3. Member states shall also grant every taxable person the right to the deduction or refund of the value added tax referred to in paragraph 2 in so far as the goods and services are used for the purposes of:
transactions which are exempt pursuant to Article . 15 ."
The relevance of the Sixth Directive
"6 With regard to the question whether an individual may rely on the directive against a national law, it should be observed that, as the Court has consistently held, a directive may not of itself impose obligations on an individual and, consequently, a provision of a directive may not be relied upon as such against such a person ( judgment in Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723 ).
7 However, it is apparent from the documents before the Court that the national court seeks in substance to ascertain whether a national court hearing a case which falls within the scope of Directive 68/151 is required to interpret its national law in the light of the wording and the purpose of that directive
8 In order to reply to that question, it should be observed that, as the Court pointed out in its judgment in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 26, the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty."
The context of the national legislation
"2. Houseboats being boats or other floating decked structures designed or adapted for use solely as places of permanent habitation and not having means of, or capable of being readily adapted for, self-propulsion."
The meaning of "for recreation or pleasure"
The other Tribunal decisions
"The question for our decision, however, is not the use to which the Valdora was at any time put, but whether she was "designed for use for recreation or pleasure". Nor does it seem to us relevant to consider the intention of the designer or of the owner who commissioned the construction of the vessel. One must, in our opinion, look at the actual design and answer the question accordingly."
"The point that troubles me about Customs' contention is that but for the means of self-propulsion both [barges] would have been zero-rated [as houseboats]. Because they have retained their engines they are according to Customs excluded from being zero-rated under [what was then Item 1 of Group 8 of Schedule 8] the very group of zero-rating which is headed Transport. To my mind it stretches the ordinary meaning of the words recreation and pleasure well beyond their natural meaning to say that this encompasses a home or place of permanent habitation such as [the two barges ] have now become. I am satisfied that they are not ships designed or adapted for use for recreation or pleasure."
Conclusion
Decision
DR A N BRICE
CHAIRMAN
RELEASE DATE: 16 May 2007
LON/2006/0860