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In the First Tier Tribunal (FTT) case of Mr Mufwankolo the dispute
was whether the appellant was able to recover VAT charged by the landlord of
the property from which he ran his business – a licenced retail outlet on
Tottenham High Road.
Background
The landlord had opted to tax the commercial property and
charged VAT on the rent. The appellant was a sole proprietor; however, the lease
was in the name of Mr Mufwankolo’s wife, and the rent demands showed her name
and not that of the sole proprietor. It was contended by the appellant, but not
evidenced, that the lease had originally been in both his and his wife’s names,
despite his wife being the sole signatory.
The issues
Could the appellant recover input tax?
- Did the business receive the supply?
- Was there appropriate evidence?
It was clear that the business operated from the relevant
property and consequently, in normal circumstances, the rent would be a genuine
cost component of the business.
The
Decision
The FTT found
that there was no entitlement to an input tax claim and the appeal was
dismissed. The lease was solely in the wife’s name and the business was the
applicant as a sole proprietor. (There was an obvious potential for a
partnership and an argument that a partnership was originally intended was advanced.
The status of registration was challenged in 2003, but, crucially, not pursued).
It was possible for the property to be sub-let by the wife to the husband, however, this did not affect the VAT treatment as matters stood. Additionally, there was no evidence that the appellant actually paid any of the rent, as this was done by the tenant. There were no VAT invoices addressed to the sole proprietor.
Given the
facts, there was no supply to the appellant, so there was no input tax to claim,
and the issue of acceptable evidence fell away.
It was a
certainty that the appeal could not succeed.
Commentary
There were a number of ways that this VAT cost could have easily
been avoided had a little thought been given to the VAT arrangements. An oversight
that created an avoidable tax hit.
A helpful guide to input tax considerations here: Care with input
tax claims.
Legislation
The VAT Act 1994 Section 3 – Taxable person
The VAT Act 1994 Section 4 – Taxable supply
The VAT Act 1994 Section 24 (1) – Input tax
The VAT Act 1994 Section 24 (6) – Input tax claim evidence