Graham (t/a Xs and Os Amusements) v Revenue and Customs [2014] UKUT 75 (TCC). Appeals

The case. This was an appeal to the Upper Tribunal following an earlier decision by the First-tier Tribunal (FTT) that Graham (G) was out of time to make an appeal.

The facts. G made a voluntary disclosure in 2006 and again in 2010 for overpaid output tax on gaming machine takings following a decision of the European Court of Justice in Edith Linneweber. The claim was rejected by the VATman, however, G did not enter an appeal at the time as it considered that having entered a protective claim it had already protected its position and that it would wait until the lead case in Rank had been decided. If Rank won it would then ask for payment of the claim. This was not unreasonable as the VATman had previously paid out on protective claims if the taxpayer subsequently won. However, the VATman changed this policy and would only repay due amounts if an appeal had been entered. Following the success of Rank , G requested repayment of the overpaid output tax but this was rejected on the grounds that it had not entered an appeal at the time. G asked the FTT for the appeal to be heard out of time but this was rejected; it subsequently appealed to the Upper Tribunal.

The decision. The Upper Tribunal did not consider that that FTT had been unreasonable in the exercise of its discretion and had taken into account all the relevant facts. The appeal was therefore dismissed.