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R (Teleos PLC) v Customs & Excise Commissioners [2005] EWCA Civ 200

Where a taxpayer claimed VAT from the Customs and Excise Commissioners the commissioners had a discretion in the exercise of their care and management powers under the Value Added Tax Act 1994, Sched 11 para 1 to make interim payments in appropriate cases, and the exercise of that discretion had to be reasonable, proportionate under EC law and was susceptible to judicial review.

11 March 2005

The appellant taxpayer (T) appealed against the refusal to order an interim payment under CPR r.25.7. The respondent commissioners cross-appealed against the judge's decision to make no order for costs on T's application for an interim payment. T was assessed to VAT in the sum of £1.53 million in respect of mobile phones supplied to a Spanish company. The commissioners took the view that T had not supplied evidence that the goods had left the UK so as to fulfil the conditions for zero rating. The commissioners recouped part of the amount of the assessment by setting off £1.058 million of VAT input credits due to T pursuant to the Value Added Tax Act 1994, s 81(3). T applied for judicial review of the commissioners' decision that the goods were not zero rated. The judge decided to refer questions on the interpretation of Sixth Council Directive 77/388 Art.28c(A) to the European Court of Justice in order to determine the proper scope and interpretation of the conditions for zero rating...

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