The Upper Tribunal UT dismissed the company's appeal against the decision of the First-tier Tribunal FTT [] TC that a taxable person receiving supplies of postal services, which were wrongly treated by Royal Mail as exempt, was not entitled to input tax credit in respect of those supplies. The company supplied vitamins and minerals by mail order. It used Royal Mail to despatch the orders and to distribute advertisements.
The claim was based on the proposition that Royal Mail had wrongly treated its services as exempt, but they were standard-rated. It was agreed that the FTT would decide, as a preliminary issue, whether a taxable person, who received services which were treated by Royal Mail as exempt, but which were standard-rated, was entitled to input tax credit in respect of those supplies.
The company submitted that the supplies were standard-rated as a matter of UK law as well and, accordingly, that it was entitled to recover as input tax the output tax that Royal Mail should have accounted to HMRC for, but had not. Although the company was unable to provide a VAT invoice to substantiate its input tax claim, it submitted that HMRC should accept alternative evidence that the supplies had taken place.
Moreover, on the company's alternative submission, the FTT found that the company could invoke direct effect of the postal exemption against HMRC, so that even if the FTT had not adopted a conforming interpretation, it would not be open to HMRC to defend the appeal on the grounds that Royal Mail's supplies of Mailmedia services were exempt under UK law.
The difficulty for the FTT was that art. Zipvit argued that the amount it paid must be treated as having included an amount of VAT embedded in the sum paid. As such, to allow Zipvit to reclaim input VAT now would have both involved a financial windfall for Zipvit. However, Zipvit contended that the case law of the CJEU indicates that there is an important difference between the substantive requirements to be satisfied for a claim for input tax and the formal requirements which apply in relation to such a claim including those in relation to the production of a VAT invoice.
The approach is strict in relation to the substantive requirements, but departure from the formal requirements is permissible if alternative satisfactory evidence of the VAT which was paid or is due can be produced by the trader. However, this concept refers to VAT due in abstract terms.
Neither the mutual error of the contracting parties including the error of the tax authorities nor the fact that the tax authorities waived or had to waive a tax assessment, and that the period of limitation in respect of the tax liability of the supplier had expired, prevented there being VAT due or paid.
However, the AG has drawn a distinction between VAT "in principle" Article and the requirement in Article which modifies that principle.
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