Tax

Transactions involving fraudulent transaction - Revenue and Customs Commissioners refusing repayment of input tax

Greener Solutions v Revenue and Customs Commissioners: Upper Tribunal (Tax and Chancery Chamber) (Mr Justice Warren): 18 January 2012

The claimant taxpayer was a company whose business consisted of making arrangements with companies to collect unwanted mobile phones. The phones were ultimately sold on to India, Africa and South East Asia. The taxpayer further purchased phones from mobile phone retailers. In March 2004, the Revenue and Customs Commissioners (the Revenue) investigated the taxpayer's VAT repayment claims.

The Revenue was satisfied that the taxpayer's activities at that time had nothing to do with Missing Trader Intra Community fraud (MTIC fraud), but in that connection the Revenue discussed MTIC fraud with the taxpayer. The taxpayer was interested in expanding into the new mobile phone market. To that end, it was introduced to a company of which an individual (M) was the sole director. An informal arrangement was reached that the taxpayer would finance a trial transaction under which the taxpayer would purchase a number of mobile phones from a vendor.

The transaction proceeded with M carrying out all the detailed work in connection with the transaction and keeping the taxpayer informed of progress and documentation. Unknown to the taxpayer, the transaction was connected with MTIC fraud. M had played a key role in the transaction and had actual knowledge of the fraud. The Revenue determined that it would not repay input tax to the taxpayer in regard to that transaction. The taxpayer challenged that decision before First-tier Tribunal (Tax and Chancery Chamber) (the FTT). The Revenue maintained that M’s knowledge should be attributed to the taxpayer in the context of the claim for repayment of input tax, or alternatively, that the directors or senior employees of the taxpayer should have known of the connection so that the taxpayer had the requisite means of knowledge.

The FTT found that the real responsibility for the transaction lay with M, but that he had been engaged by the taxpayer to source and conduct the transaction on its behalf. Accordingly, the FTT concluded that, in principle, knowledge should be attributed to the taxpayer. However, the FTT found that the exception set out in Hampshire Land Co, Re ([1896] 2 Ch 743) (Hampshire Land) applied on the basis that M had owed a duty to the taxpayer to enter into a genuine transaction, but instead he had presented to the taxpayer a transaction that he had known was connected to a fraud on the Revenue, with the result that no input tax was recoverable by the taxpayer, thus involving the taxpayer in a considerable loss.

The FTT considered that what had to be taken into account was the effect of the acts themselves, and not what the position would have been if those acts had eventually proved to be ineffective. The FTT held that that was a fraud by M against the taxpayer, and accordingly, M’s knowledge of the fraud would not be attributed to the taxpayer. The Revenue appealed to the Upper Tribunal (Tax and Chancery Chamber) (the tribunal).

The issue that fell to be determined were, first, whether M’s actual knowledge was to be imputed to the taxpayer. The Revenue submitted that there was no issue but that M had been engaged by the taxpayer to source and conduct the transaction on its behalf. Secondly, whether the connection with fraud was something of which the taxpayer should have known. The Revenue submitted that the FTT had made errors in respect of various categories of evidence which had led it to a conclusion which no reasonable tribunal could properly have reached in its finding that it had not been established that the taxpayer ought to have known that the transaction was connected with fraud. It contended that the only correct conclusion was that, at the time of the transaction, the reasonable trader would have been very much alive to the prevalence of MTIC fraud and consequently alert to indications that a given feature was inconsistent with a transaction in a legitimate deal chain. The appeal would be allowed.

(1) The Hampshire Land principle was of general application and applied to prevent the knowledge of the agent in breach of his duty to the company being attributed to a company where the company was a victim of his fraud. In determining whether there was a fraud against a company one should consider the effect of the acts themselves, and not what the position would have been if those acts eventually proved to be ineffective. In judging whether the fraud was in fact harmful to the interests of the taxpayer, one should not be too ready to find such harm (see [38] of the judgment).

On the facts as found by the FTT and applying established principles, it had not been open to the FTT to reach the conclusion which it had. In so doing, the FTT had failed to apply its own earlier conclusion that, in judging whether a company was to have been regarded as the victim of the acts of a person, one should consider the effect of the acts themselves, and not what the position would have been if those acts eventually proved to be ineffective. Given the findings of fact concerning M’s role in the transaction, his knowledge of the fraud was to be attributed to the taxpayer, and the Hampshire Land principle had not been engaged because the fraud had not been aimed at the taxpayer. The potential risk to the taxpayer of a refusal by the Revenue to repay purported input tax was irrelevant in deciding whether the taxpayer had been a victim of M and whether his knowledge should be attributed to it (see [41], [43], [46] of the judgment).

McNicholas Construction Co Ltd v Comrs of Customs and Excise [2000] All ER (D) 819 applied; Morris v Bank of India [2005] All ER (D) 242 (Jun) applied; Stone & Rolls Ltd (in liq) v Moore Stephens (a firm) [2010] 1 All ER (Comm) 125 applied; Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 All ER 918 adopted; Hampshire Land Co, Re [1896] 2 Ch 743 considered; Kittel v Belgium: C-439/04; Belgium v Recolta Recycling SPRL: C-440/04 [2006] All ER (D) 69 (Jul) considered; Mobilx Ltd (in administration) v Revenue and Customs Comrs [2010] All ER (D) 104 (May) considered.

(2) (Obiter) Once it had been appreciated by reasonable traders that they had needed to be aware of the risk of involvement in fraudulent trade, an objective assessment had to be made, on the facts of a particular case, whether a reasonable trader in the position of the actual trader would have realised that there had been no reasonable explanation, other than fraud, for aspects of the transactions in question (see [56] of the judgment).

In the instant case, on the evidence before the tribunal, it had been clear that a reasonable trader in the position of the taxpayer would have known that MTIC fraud had been a significant problem in the sector, albeit that the inherent probability had not been known. Further, a number of grounds raised by the Revenue to the effect that the FTT had made errors in regard to various categories of evidence had force. The FTT had not adopted a correct approach to assessing whether the taxpayer ought to have known whether the transaction had been connected with fraud.

Accordingly, it had not been safe to rely on the ultimate conclusion of the FTT on the issue of whether the taxpayer ought to have known that the transaction had been part of a fraud. There had been an error of law on the part of the tribunal which it was open to the tribunal to correct (see [56], [61]-[95], [97], [98] of the judgment). The Revenue's appeal would be allowed. The Revenue's decision to refuse repayment of input tax tot he taxpayer would be upheld. (see [101] of the judgment).

Christopher Foulkes (instructed by the General Counsel and Solicitor to the Revenue and Customs Commissioners) for the Revenue; Colin Wells (instructed by Aegis Tax LLP) for the taxpayer.