Summary
Whether components constitute a single item of plant is a question of fact and degree. Function and purpose are relevant, but neither a single-purpose test nor a distinct-operational-function test is conclusive. Under section 11(4)(a) of the Capital Allowances Act 2001, expenditure must be on the plant itself, its construction, transport, installation or expenditure of a similar nature. Expenditure on design, data gathering, preparatory surveys and advice about installation is not expenditure on the provision of plant merely because the plant could not be made or installed without it. Such expenditure may nevertheless be capital for revenue deduction purposes. In a closure-notice appeal, the tribunal’s jurisdiction is defined by the conclusions and subject matter of the notice, construed in context, rather than by an erroneous consequential amendment alone.
Factual background
The taxpayers operated offshore windfarms and claimed capital allowances for expenditure incurred on environmental studies, metocean studies, geophysical and geotechnical surveys, technical studies and project management. The FTT held that the turbines and array cables could together constitute a single item of plant and allowed some categories of study expenditure.
HMRC appealed on the single/multiple plant issue and on qualifying expenditure. The taxpayers appealed on expenditure rejected by the FTT, the alternative revenue deduction claim and issues concerning closure notices, tribunal jurisdiction and conclusive determination under Schedule 18 to the Finance Act 1998.
Held
- Single or multiple plant. HMRC’s appeal on this issue was dismissed. Whether components form one item of plant is a question of fact and degree. The tribunal must consider the facts and circumstances, including the nature and function of the components. The expressions “distinct operational function” and “directed towards a single purpose” are useful but non-exhaustive descriptions. The FTT was entitled to find that the turbines and array cables forming the generation assets were a single item of plant.
- Qualifying expenditure. HMRC’s appeal was allowed and the FTT’s decision was set aside and remade. Section 11(4)(a) of the Capital Allowances Act 2001 covers expenditure on the plant itself and may include construction, transport and actual installation. The question is what the expenditure achieves: expenditure on something other than the plant does not qualify merely because it is necessary before the plant can be provided.
- Design expenditure and expenditure gathering data to inform design are not expenditure on the provision of plant. Surveys and studies advising where, how or when to install plant are not the actual installation. None of the disputed environmental and technical studies therefore qualified. Unchallenged findings concerning certain project-management preliminaries remained in place, but produced no practical allowance where the underlying studies did not qualify.
- The taxpayers’ alternative revenue deduction appeal was dismissed. Expenditure may be capital in nature without satisfying the separate statutory test for expenditure on the provision of plant or machinery.
- On the closure-notice issues, the FTT had jurisdiction under sections 49G and 50 of the Taxes Management Act 1970 to adjust consequential amounts of qualifying expenditure. The scope of the appeal was determined by the closure notices’ conclusions, read in their factual context. Paragraph 88 of Schedule 18 to the Finance Act 1998 did not conclusively determine the amounts while the appeals remained pending.
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Appellate history
- Upper Tribunal (Tax and Chancery Chamber) [2023] UKUT 260 (TCC): HMRC’s Issue 1 appeal dismissed; HMRC’s Issue 2 appeal allowed; taxpayers’ appeals dismissed on Issues 2, 4, 5 and 6; decision remade in part.
- First-tier Tribunal (Tax Chamber) [2022] UKFTT 35 (TC): allowed the generation assets to be treated as a single item of plant and allowed some study expenditure.
Appeal route
- Appealed from[2022] UKFTT 35 (TC)This appealhmrc’s appeal dismissed on issue 1 and allowed on issue 2; taxpayers’ appeals dismissed on issues 2, 4, 5 and 6; ftt decision set aside and remade in part.
- This judgment [2023] UKUT 260 (TCC) Upper Tribunal (Tax and Chancery Chamber)
- Appealed to[2025] EWCA Civ 279Outcomeappeal allowed in part
- Appealed to[2026] UKSC 12Outcomeappeal allowed unanimously
Key cases cited
23 authorities cited.
- Ben-Odeco Ltd v Powlson [1978] 1 WLR 1093
- Atherton v British Insulated and Helsby Cables Ltd [1926] AC 205
- Urenco Chemplants Limited & Anor v The Commissioners for His Majesty's Revenue and Customs [2022] EWCA Civ 1587
- Inmarsat Global Limited v The Commissioners for HMRC [2022] EWCA Civ 1076
- Cheshire Cavity Storage 1 Ltd v Revenue and Customs Commissioners [2022] EWCA Civ 305
- Archer, R (on the application of) v HM Revenue and Customs [2017] EWCA Civ 1962
- Yarmouth v France (1887) 19 QBD 647
- Shinelock Limited v HMRC [2023] UKUT 107
- Daarasp LLP & Anor v HMRC [2021] UKUT 87 (TCC)
- Investec Asset Finance Plc v HMRC [2020] STC 193
- Attwood (Inspector of Taxes) v Anduff Car Wash Ltd [1997] STC 1167
- Cole Brothers Ltd v Phillips [1980] STC 518
- Munby v Furlong (1977) 50 TC 491
- Inland Revenue Comrs v Barclay, Curle & Co Ltd [1969] 1 WLR 675
- McVeigh v Arthur Sanderson & Sons Ltd [1969] 1 WLR 1143
- Daphne v Shaw (1926) 11 TC 258
- Lavery v HMRC
- Fidex Ltd v HMRC
- Bristol & West Building Society v HMRC
- D'Arcy v HMRC
- Tower MCashback LLP 1 v HMRC
- Tucker (HMIT) v Granada Motorway Services Ltd
- Edwards v Bairstow
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Cases citing this case
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