The taxpayer discovered that it had over several years made overpayments of VAT on chocolate covered biscuits because of a mistake as to the tax mutual with the defendants.
Held: MandS’s challenge to section 80(4) (as infringing EU law) failed, as regards the teacakes claim, because the Becker conditions were not satisfied (Becker v Finanzamt Munster-Innenstadt (Case 8/81) [1982] ECR 53) and general principles of Community law could not be relied on in the absence of a directly enforceable right;
(2) MandS’s challenge to section 80 (4) failed, as regards the late vouchers claim, for similar reasons, since the Commissioners’ failure to apply the amended statute correctly was not equivalent to incorrect transposition; and
(3) MandS’s challenge to section 80 (4), as regards the early vouchers, should be referred to the Court of Justice. Schiemann LJ (with whom the other members of the Court agreed) stated ([2000] STC 16, 39): ‘Marks and Spencer have an alternative submission which I shall consider in the next part of this judgment to the effect that the retrospective legislation is unlawfully discriminatory. I am not, for reasons which I shall shortly explain, persuaded that Marks and Spencer are entitled to judgment on that basis. It follows that a decision on whether it is compatible with Community law to enforce legislation which removes with retrospective effect a right under national law to reclaim VAT, which right has existed unexercised for more than three years, is in my judgment necessary to enable this Court to give judgment on the early vouchers claim. I would therefore be minded to refer this question to the Court of Justice.’
Citations:
[1999] EWCA Civ 3024, [2000] BTC 5003, [2000] 1 CMLR 256, [2000] Eu LR 293, [2000] STC 16, [2000] STI 22, [2000] BVC 35
Links:
Bailii
Statutes:
Value Added Taxes Act 1994 80(4)
Jurisdiction:
England and Wales
Citing:
Appeal from – Marks and Spencer Plc v Commissioners of Customs and Excise Admn 21-Dec-1998
The limitation period for the recovery of overpaid VAT was alleged to offend the principle of equivalence.
Held: Moses J said: ‘In my judgment no comparison can be made with other types of tax such as income tax payable in respect of an . .
Cited by:
At CA – Marks and Spencer Plc v Customs and Excise HL 4-Feb-2009
The taxpayer requested refund of VAT overpaid on chocolate covered cakes. The CandE resisted saying that the money had been substantially already paid by its customers. The case had been referred twice to the ECJ, who answered that the maintenance . .
Lists of cited by and citing cases may be incomplete.
European, VAT
Updated: 15 July 2022; Ref: scu.268843
