Telent Technology Services Limited v The Commissioners for HMRC
[2024] UKUT 183 (TCC)
Vistry Homes Ltd & Anor v The Commissioners for HMRC
23 October 2023
[2023] UKFTT 906 (TC)
First-tier Tribunal
Two companies appealed tax bills. The tax office tried to stop the appeals, saying a similar case was already settled. The judge said that each case was different, and they could still argue their case.
Key Facts
- •HMRC issued VAT assessments to Vistry Homes Ltd (£882,412) and Linden Wates (Westbury) Ltd (£74,768).
- •Appellants (Vistry and Linden) argued for a single zero-rated supply of construction services to housing associations after the 'golden brick' stage, while HMRC contended for two supplies: exempt land and zero-rated construction services.
- •A prior appeal by Linden Limited (previous VAT group representative) concerning the same issue was withdrawn in February 2022.
- •HMRC applied to strike out the appellants' appeals based on cause of action estoppel, issue estoppel, and abuse of process.
- •The 2022 appeals concern different projects and contracts than the withdrawn Linden appeal, although some contractual wording is similar.
- •The Merlin agreement, used in the Linden appeal, was considered representative, but not necessarily exhaustive, by HMRC.
Legal Principles
Cause of action estoppel
Arnold v National Westminster Bank plc [1991] 2 AC 93
Issue estoppel
Arnold v National Westminster Bank plc [1991] 2 AC 93; Caffoor v Income Tax Commissioner [1961] AC 584; Littlewoods Retail Ltd v HMRC [2014] EWHC 868 (Ch)
Abuse of process
Henderson v Henderson (1843) 3 Hare 100; Johnson v Gore Wood & Co [2002] 2 AC 1
Striking out applications under F-tT Rule 8(3)(c)
Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009; The First De Sales Limited Partnership v HMRC [2018] UKUT 396
VAT nature of supplies; relevance of contractual terms and economic reality
HMRC v Newey [2018] EWCA Civ [2018] STC 1054; HMRC v Newey (Case C-653/11) [2013] STC 2432
Deemed determination of withdrawn appeals
Sections 85(1) and 85(4) VATA
Outcomes
HMRC's application to strike out the appeals was dismissed.
The Tribunal found that neither cause of action estoppel, issue estoppel, nor abuse of process applied. The deemed determination from the withdrawn Linden appeal was limited to the specific Merlin agreement, not to all supplies to housing associations.
Similar Cases
Mercy Global Consult Ltd (In Liquidation) v Abayomi Adegbuyi-Jackson & Ors
[2023] EWHC 749 (Ch)
Learna Limited v The Commissioners for HMRC
[2023] UKFTT 972 (TC)
Foundry Supplies UK Limited v The Commissioners for HMRC
[2023] UKFTT 656 (TC)
Mercy Global Consult Limited (in liquidation) v Abayomi Adegbuyi-Jackson & Ors
[2023] EWCA Civ 1073