Value Added Tax Act 1994, section 84

Further provisions relating to appeals

Part V Reviews and Appeals

(1)References in this section to an appeal are references to an appeal under section 83.

F777(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F778 (3)Subject to subsections (3B) and (3C), where the appeal is against a decision with respect to any of the matters mentioned in section 83(1)(b), (n), (p), (q), (ra) [F779 , (rb)F779] or (zb), it shall not be entertained unless the amount which HMRC have determined to be payable as VAT has been paid or deposited with them.F778]

[F780 (3A)Subject to subsections (3B) and (3C), where the appeal is against an assessment which is a recovery assessment for the purposes of this subsection, or against the amount of such an assessment, it shall not be entertained unless the amount notified by the assessment has been paid or deposited with HMRC.F780]

[F781 (3B)In a case where the amount determined to be payable as VAT or the amount notified by the recovery assessment has not been paid or deposited an appeal shall be entertained if—

(a)HMRC are satisfied (on the application of the appellant), or

(b)the tribunal decides (HMRC not being so satisfied and on the application of the appellant),

  • that the requirement to pay or deposit the amount determined would cause the appellant to suffer hardship.

(3C)Notwithstanding the provisions of sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007, the decision of the tribunal as to the issue of hardship is final.F781]

(4)Subject to subsection (11) below, where—

(a)there is an appeal against a decision of [F782HMRCF782] with respect to, or to so much of any assessment as concerns, the amount of input tax that may be credited to any person or the proportion of input tax allowable under section 26, and

(b)that appeal relates, in whole or in part, to any determination by [F782HMRCF782] —

(i)as to the purposes for which any goods or services were or were to be used by any person, or

(ii)as to whether or to what extent the matters to which any input tax was attributable were or included matters other than the making of supplies within section 26(2), and

(c)F783VAT for which, in pursuance of that determination, there is no entitlement to a credit is VAT on the supply ... or importation of something in the nature of a luxury, amusement or entertainment,

the tribunal shall not allow the appeal or, as the case may be, so much of it as relates to that determination unless it considers that the determination is one which it was unreasonable to make or which it would have been unreasonable to make if information brought to the attention of the tribunal that could not have been brought to the attention of [F782HMRCF782] had been available to be taken into account when the determination was made.

[F784 (4ZA)Where an appeal is brought—

(a)against such a decision as is mentioned in section [F785 83(1)F785] (fza), or

(b)to the extent that it is based on such a decision, against an assessment,

the tribunal shall not allow the appeal unless it considers that [F786 HMRCF786] could not reasonably have been satisfied that there were grounds for the decision.F784]

[F787 (4A)Where an appeal is brought against the refusal of an application such as is mentioned in section 43B(1) or (2) on the grounds stated in section 43B(5)(c)—

(a)the tribunal shall not allow the appeal unless it considers that [F788 HMRCF788] could not reasonably have been satisfied that there were grounds for refusing the application,

(b)the refusal shall have effect pending the determination of the appeal, and

(c)if the appeal is allowed, the refusal shall be deemed not to have occurred.

(4B)Where an appeal is brought against the giving of a notice under section 43C(1) or (3)—

(a)the notice shall have effect pending the determination of the appeal, and

(b)if the appeal is allowed, the notice shall be deemed never to have had effect.

(4C)Where an appeal is brought against the giving of a notice under section 43C(1), the tribunal shall not allow the appeal unless it considers that [F789 HMRCF789] could not reasonably have been satisfied that there were grounds for giving the notice.

(4D)Where—

(a)an appeal is brought against the giving of a notice under section 43C(3), and

(b)the grounds of appeal relate wholly or partly to the date specified in the notice,

the tribunal shall not allow the appeal in respect of the date unless it considers that [F790 HMRCF790] could not reasonably have been satisfied that it was appropriate.F787]

[F791 (4E)Where an appeal is brought against a requirement imposed under paragraph 4(2)(b) of Schedule 11 that a person give security, the tribunal shall allow the appeal unless [F792 HMRC satisfiesF792] the tribunal that—

(a) there has been an evasion of, or an attempt to evade, VAT in relation to goods or services supplied to or by that person, or

(b) it is likely, or without the requirement for security it is likely, that VAT in relation to such goods or services will be evaded.

(4F) A reference in subsection (4E) above to evading VAT includes a reference to obtaining a dfnVAT credit that is not due or a dfnVAT credit in excess of what is due.F791]

(5)Where, on an appeal against a decision with respect to any of the matters mentioned in section [F79383(1)F793] (p) [F794or (rb)F794] —

(a)it is found that the amount specified in the assessment is less than it ought to have been, and

(b)the tribunal gives a direction specifying the correct amount,

the assessment shall have effect as an assessment of the amount specified in the direction, and that amount shall be deemed to have been notified to the appellant.

(6) F795 Without prejudice to section 70, ... nothing in section [F796 83(1) F796] (q) shall be taken to confer on a tribunal any power to vary an amount assessed by way of [F797 penalty, interest or surcharge F797][F797 penalty or interest F797] except in so far as it is necessary to reduce it to the amount which is appropriate under sections [F798 59 F798][F798 60 F798] to 70; and in this subsection “penalty” includes an amount assessed by virtue of section 61(3) or (4)(a).

[F799 (6A)Without prejudice to section 70, nothing in section [F800 83(1)F800] (zb) shall be taken to confer on a tribunal any power to vary an amount assessed by way of penalty except in so far as it is necessary to reduce it to the amount which is appropriate under paragraph 11 of Schedule 11A.F799]

[F801 (6B)Nothing in section [F802 83(1)F802] (zc) shall be taken to confer on a tribunal any power to vary an amount assessed by way of penalty except in so far as it is necessary to reduce it to the amount which is appropriate under regulations made under section 135 of the Finance Act 2002.F801]

(7)Where there is an appeal against a decision to make such a direction as is mentioned in section [F80383(1)F803] (u), the tribunal shall not allow the appeal unless it considers that [F804HMRCF804] could not reasonably have been satisfied as to the matters in sub-paragraph (2)(a) to (d) of paragraph 2 of Schedule 1 or, as the case may be, [F805that there were grounds for making the direction.F805]

[F806 (7A)Where there is an appeal against a decision to make such a direction as is mentioned in section [F807 83(1)F807] (wa), the cases in which the tribunal shall allow the appeal shall include (in addition to the case where the conditions for the making of the direction were not fulfilled) the case where the tribunal are satisfied, in relation to the relevant event by reference to which the direction was given, that—

(a)the change in the treatment of the body corporate, or

(b)the transaction in question,

had as its main purpose or, as the case may be, as each of its main purposes a genuine commercial purpose unconnected with the fulfilment of the condition specified in paragraph 1(3) of Schedule 9A.F806]

[F808 (7ZA)Where there is an appeal against such a refusal as is mentioned in section [F809 83(1)F809] (wb)—

(a)the tribunal shall not allow the appeal unless it considers that [F810 HMRCF810] could not reasonably have been satisfied that there were grounds for the refusal, and

(b)the refusal shall have effect pending the determination of the appeal.F808]

[F811 (7B)Where there is an appeal against a decision to make such a direction as is mentioned in section [F812 83(1)F812] (zza)—

(a)the tribunal shall not allow the appeal unless it considers that [F813 HMRCF813] could not reasonably have been satisfied that there were grounds for making the direction;

(b)the direction shall have effect pending the determination of the appeal.F811]

F814(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)M22No appeal shall lie under this section with respect to the subject-matter of any decision which by virtue of section 16 is a decision to which section 14 [F815or 15AF815] of the Finance Act 1994 (decisions subject to review) applies unless the decision—

(a)relates exclusively to one or both of the following matters, namely whether or not section 30(3) applies in relation to the importation of the goods in question and (if it does not) the rate of tax charged on those goods; and

(b)is not one in respect of which notice has been given to [F816HMRCF816] under section 14 of that Act requiring them to review it [F817andF817]

[F818 (c)a review is not being undertaken following a request under section 14A of that Act; and

(d)a review is not being undertaken under section 15 of that Act as a consequence of section 15B(3), 15C(3) or 15E(3) of that ActF818] .

(10)F820Where an appeal is against [F819an HMRC decisionF819] which depended upon a prior decision taken ... in relation to the appellant, the fact that the prior decision is not within section 83 shall not prevent the tribunal from allowing the appeal on the ground that it would have allowed an appeal against the prior decision.

(11)Subsection (4) above shall not apply in relation to any appeal relating to the input tax that may be credited to any person at the end of a prescribed accounting period beginning before 27th July 1993.

Definitions used in section 84 11

HMRC

“HMRC” means Her Majesty’s Revenue and Customs;

Defined in s.96(1) · see it in the full Act
VAT

“VAT” means value added tax charged in accordance with this Act;

Defined in s.96(1) · see it in the full Act
tribunal

In this Act “tribunal” means the First-tier Tribunal or, where determined by or under Tribunal Procedure Rules, the Upper Tribunal.

Defined in s.82 · see it in the full Act

“tribunal” has the meaning given by section 82;

Defined in s.96(1) · see it in the full Act
input tax

“input tax” has the meaning given by section 24;

Defined in s.96(1) · see it in the full Act
the credit

(4A) Subsection (3) above shall not require any such amount as is mentioned in paragraph (a) of that subsection (“the credit”) to be set against any such sum as is mentioned in paragraph (b) of that subsection (“the debit”) in any case where—

(a)an insolvency procedure has been applied to the person entitled to the credit;

(b)the credit became due after that procedure was so applied; and

(c)the liability to pay the debit either arose before that procedure was so applied or (having arisen afterwards) relates to, or to matters occurring in the course of, the carrying on of any business at times before the procedure was so applied.

Defined in s.81(4A) · see it in the full Act
supplied

(3) In sub-paragraph (2), “supplied” is to be construed in accordance with Part 1 of the Electricity Act 1989 (see section 64(1) of that Act ).

Defined in Sch.7A para.A1 · see it in the full Act

(3) In sub-paragraph (2), “supplied” is to be construed in accordance with Part 1 of the Electricity Act 1989 (see section 64(1) of that Act ).

Defined in Sch.8 para.3 · see it in the full Act
regulations

“regulations” means regulations made by the Commissioners under this Act;

Defined in s.96(1) · see it in the full Act
relevant event

(3) For the meaning of a “relevant event”, see paragraph 63.

Defined in Sch.9ZA para.60(3) · see it in the full Act

(3) For the meaning of a “relevant event”, see paragraph 63.

Defined in Sch.9ZA para.61(3) · see it in the full Act
tax

“tax” means VAT;

Defined in s.96(1) · see it in the full Act
prescribed accounting periods

account for and pay VAT by reference to such periods (in this Act referred to as “prescribed accounting periods”) at such time and in such manner as may be determined by or under regulations and regulations may make different provision for different circumstances.

Defined in s.25(1) · see it in the full Act
prescribed accounting period

“prescribed accounting period” has the meaning given by section 25(1);

Defined in s.96(1) · see it in the full Act

Cases considering section 84 25

Totel Ltd v Commissioners for Her Majesty’s Revenue and Customs

[2018] UKSC 44 · 26 July 2018

The section makes payment or deposit of assessed VAT a condition of entertaining an appeal unless the trader demonstrates hardship. The court held that applying this condition to VAT appeals did not infringe the principle of equivalence because the proposed domestic tax appeals were not true comparators (see paras [1]-[5]; [22]-[29]; [48]).

Metropolitan International Schools Ltd v Revenue And Customs

[2019] EWCA Civ 156 · 14 February 2019Interprets

The court identified section 84 as containing further provisions relating to VAT appeals, within which subsection (10) operated. The substantive construction concerned subsection (10). (see para [11]) The court interpreted section 84(10) as requiring a distinct prior decision on which the appealed decision legally depended. A matter that was only a factor, or did not dictate liability, was insufficient, so the provision did not allow the FTT to determine the legitimate expectation claim. (see paras [22]; [25]; [26])

Totel Ltd, R (on the application of) v The First-Tier Tribunal (Tax Chamber) & Ors

[2012] EWCA Civ 1401 · 31 October 2012Disapplies

The former provision required disputed tax to be paid or deposited before an appeal could be entertained unless HMRC or the tribunal accepted that payment would cause hardship. It supplied the statutory context for the tribunal’s determination. (see paras [3]-[4], [21]-[24]) The provision preserved the requirement to pay or deposit disputed VAT while permitting an appeal to be entertained where payment would cause hardship. A decision under it concerned the conditions for the tax appeal, but was not itself an appeal against an HMRC decision. (see paras [11], [22]-[25]) The provision purported to make a tribunal’s hardship decision final notwithstanding statutory appeal rights. Its emphatic wording could not supply its own vires because authority had to be found in the enabling Act. Its insertion was ultra vires. (see paras [27], [33]-[37], [44])

5 more judgments, and what each says about section 84, are in the case-law panel in the full Act.

Amendments and notes

45 notes from legislation.gov.uk

Amendments

  1. F777S. 84(2) omitted (1.4.2009) by virtue of The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(2)
  2. F778S. 84(3) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(3)
  3. F779Word in s. 84(3) inserted (15.9.2016) by Finance Act 2016 (c. 24), s. 124(4)(a)
  4. F780S. 84(3A) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(4)
  5. F781S. 84(3B)(3C) inserted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(5)
  6. F782Word in s. 84(4) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(6)
  7. F783Word in s. 84(4)(c) omitted (31.12.2020) by virtue of Taxation (Cross-border Trade) Act 2018 (c. 22), s. 57(3), Sch. 8 para. 73(a) (with Sch. 8 para. 99) (with savings and transitional provisions in S.I. 2019/105 (as amended by S.I. 2020/1495, regs. 1(2), 21), S.I. 2020/1545, Pt. 4 and 2020 c. 26, Sch. 2 para. 7(7)-(9)); S.I. 2020/1642, reg. 4(b) (with reg. 7) this amendment is subject to savings and/or transitional provisions, see the commentary.
  8. F784S. 84(4ZA) inserted (retrospective to 24.4.2002) by Finance Act 2002 (c. 23), s. 23(3)(4)
  9. F785Word in s. 84(4ZA)(a) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(8)
  10. F786Word in s. 84(4ZA) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(7)
  11. F787S. 84(4A)-(4D) inserted (27.7.1999) by 1999 c. 16, s. 16, Sch. 2 para. 4
  12. F788Word in s. 84(4A)(a) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(7)
  13. F789Word in s. 84(4C) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(7)
  14. F790Word in s. 84(4D) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(7)
  15. F791S. 84(4E)(4F) inserted (retrospective to 10.4.2003) by Finance Act 2003 (c. 14), s. 17(7)(8)
  16. F792Words in s. 84(4E) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(9)
  17. F793Word in s. 84(5) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(8)
  18. F794Words in s. 84(5) inserted (15.9.2016) by Finance Act 2016 (c. 24), s. 124(4)(b)
  19. F795Words in s. 84(6) omitted (31.12.2020) by virtue of Taxation (Cross-border Trade) Act 2018 (c. 22), s. 57(3), Sch. 8 para. 73(b) (with Sch. 8 para. 99) (with savings and transitional provisions in S.I. 2019/105 (as amended by S.I. 2020/1495, regs. 1(2), 21), S.I. 2020/1545, Pt. 4 and 2020 c. 26, Sch. 2 para. 7(7)-(9)); S.I. 2020/1642, reg. 4(b) (with reg. 7) this amendment is subject to savings and/or transitional provisions, see the commentary.
  20. F796Word in s. 84(6) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(8)
  21. F797Words in s. 84(6) substituted (1.1.2023 for specified purposes, 6.4.2024 for specified purposes, 1.4.2026 for specified purposes) by Finance Act 2021 (c. 26), s. 118(2), Sch. 27 para. 27(a); S.I. 2022/1278, reg. 2(3)(4)(a); S.I. 2024/440, reg. 2; S.I. 2026/370, reg. 3 text substituted for certain specified purposes only, see the commentary. Note: in some cases two versions of the measure may be present: the original version and substituted version.
  22. F798Word in s. 84(6) substituted (1.1.2023 for specified purposes, 6.4.2024 for specified purposes, 1.4.2026 for specified purposes) by Finance Act 2021 (c. 26), s. 118(2), Sch. 27 para. 27(b); S.I. 2022/1278, reg. 2(3)(4)(a); S.I. 2024/440, reg. 2; S.I. 2026/370, reg. 3 text substituted for certain specified purposes only, see the commentary. Note: in some cases two versions of the measure may be present: the original version and substituted version.
  23. F799S. 84(6A) inserted (22.7.2004 for specified purposes, 1.8.2004 in so far as not already in force) by Finance Act 2004 (c. 12), s. 19(2), Sch. 2 para. 5(3); S.I. 2004/1934, art. 2
  24. F800Word in s. 84(6A) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(8)
  25. F801S. 84(6B) inserted (19.7.2007) by Finance Act 2007 (c. 11), s. 93(9)
  26. F802Word in s. 84(6B) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(8)
  27. F803Word in s. 84(7) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(8)
  28. F804Word in s. 84(7) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(7)
  29. F805Words in s. 84(7) substituted (19.3.1997 with effect as mentioned in s. 31(4) of the amending Act) by 1997 c. 16, s. 31(3)(4)
  30. F806S. 84(7A) inserted (29.4.1996) by 1996 c. 8, s. 31(4)
  31. F807Word in s. 84(7A) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(8)
  32. F808S. 84(7ZA) inserted (with effect in accordance with art. 1(2) of the amending S.I.) by The Value Added Tax (Buildings and Land) Order 2008 (S.I. 2008/1146), arts. 1(1), 3(3) (with Sch. 2)
  33. F809Word in s. 84(7ZA) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(8)
  34. F810Word in s. 84(7ZA) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(7)
  35. F811S. 84(7B) inserted (19.7.2006) by Finance Act 2006 (c. 25), s. 21(5)
  36. F812Word in s. 84(7B) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(8)
  37. F813Word in s. 84(7B) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(7)
  38. F814S. 84(8) omitted (1.4.2009) by virtue of The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(10) (with Sch. 3 para. 9(2)(a))
  39. F815Words in s. 84(9) added (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(11)(a)
  40. F816Word in s. 84(9)(b) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(11)(b)
  41. F817Word in s. 84(9)(b) inserted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(11)(c)
  42. F818S. 84(9)(c)(d) inserted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(11)(d)
  43. F820Words in s. 84(10) omitted (1.4.2009) by virtue of The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(12)(b)
  44. F819Words in s. 84(10) substituted (1.4.2009) by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (S.I. 2009/56), art. 1(2), Sch. 1 para. 221(12)(a)

Marginal citations

  1. M221994 c. 9.