METAL TREATMENTS (BIRMINGHAM) Limitedappellant

13/05/04030750METAL TREATMENT (BIRMINGHAM) LIMITEDMrJ D Demack Manchester13 AprilMr E Saunders appeared for the AppellantMr J Puzey, of counsel, instructed by the Solicitor for Customs and Excise

VAT — input tax — refusal of voluntary disclosure by Customs — whether claims to input tax allegedly made orally by telephone made timeously — no evidence of any claim ever being made — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

METAL TREATMENTS (BIRMINGHAM) LIMITEDAppellant

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THE COMMISSIONERS OF CUSTOMS AND EXCISERespondents

Tribunal:MrJ D Demack (Chairman)

Sitting in public in Manchester on 13 April 2004

Mr E Saunders, VAT consultant, for the Appellant

Mr J Puzey, of counsel, instructed by the Solicitor for Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004

DECISION

1.This is an appeal by Metal Treatments (Birmingham) Ltd. (‘Metal Treatments’) against a decision of the Commissioners of Customs and Excise by letter of 1 October 2003 refusing a voluntary disclosure of input tax underclaimed of £1,436,149.29 in six consecutive financial years ending on 31 March 1997.

2.Metal Treatments maintains that its claim was originally made orally by telephone by one Brian Chandler, its accounts officer, on a date unknown but before 30 April 1997. (It is common ground that if the claim was not made by that date it is statute barred under the ‘capping’ provisions). The Commissioners can find no record of any such claim, and put the company to proof that it was in fact made before the date in question.

3.Metal Treatments full reasons for appealing, as included in its Notice of Appeal of 13 October 2003 are as follows:

• “Metal Treatments attempted to make a telephone claim for input tax unclaimed in 1997 to Birmingham VAT office (telephone enquiries section). This section dealt with all the queries of this nature. The Customs officer stated the claim could not be made. Metal Treatments subsequently discovered that this was wrong and incorrect.
• Our VAT consultant re-submitted the claim following the University of Sussex ruling only to be told by Customs that because no confirmation of the telephone call can be found (despite that records have been lost and destroyed) the claim is refused.
• During the time in question the VAT consultant [Mr Saunders] was an officer of Customs and Excise and worked on several occasions on that section, as did over 20 other officers who were not indigenous to the section.
• Calls were only logged occasionally and advice was given on receipt of claims without reference made to the client’s folder or notes taken.”

4.In opening Metal Treatments’ case, Mr Saunders, its representative, concentrated almost entirely on deficiencies he perceived in Customs practice in dealing with taxpayers at the Birmingham Broadway enquiry centre, at which office he was at the time a trainee Customs officer dealing with telephone enquiries. I pointed out to him that, even if the deficiencies in question existed, it was still for Metal Treatments to prove on the balance of probabilities that the telephone call allegedly made by Brian Chandler had in fact been made: that in it he had claimed entitlement by Metal Treatments to recover input tax; that it was not a mere enquiry; and that it had been made no later then 30 April 1997.

5.As the tribunal clerk had prepared a list of all those who were to be called as witnesses in the case, and none appeared to be being called by Metal Treatments, I enquired of Mr Saunders whether Mr Chandler was to be called. He explained that Mr Chandler’s whereabouts were unknown, and he had no means of contacting him. I then asked whether the company had any documentary evidence contemporaneous with the events in 1997 to support its claims. To my question Mr Saunders answered that it probably had, but as all its documents for the period had been stored in boxes at its premises, he was unable with certainty to say and had none available on which to rely. He then applied for the hearing to be adjourned both to give him the opportunity to search the various storage boxes and to attempt to contact Mr Chandler, adding that this was the first occasion he had represented an appellant in the tribunal at a contested hearing. (Mr Puzey, counsel for the Commissioners, challenged Mr Saunders’ claim in that behalf saying that he himself had dealt with at least one contested case in the tribunal where the appellant was represented by Mr Saunders).

6.I invited Mr Saunders to indicate in general terms what evidence he proposed to adduce in support of Metal Treatments’ claim in the absence of evidence from Mr Chandler and any contemporaneous documentary records of the company. He said that he had none to adduce . In those circumstances I had no alternative but to dismiss the appeal.

DAVID DEMACK

CHAIRMAN

RELEASE DATE:

MAN/03/0750