Anti-avoidance - analysis of relevant case law

By Tolley
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The following Value Added Tax guidance note by Tolley provides comprehensive and up to date tax information covering:

  • Anti-avoidance - analysis of relevant case law
  • Emsland-Stärke GmbH v Hauptzollamt Hamburg-Jonas (Case C-110/99)
  • Halifax plc and Others v Customs and Excise Commissioners (Case C-255/02)
  • WHA Ltd; Viscount Reinsurance v C &amp; E Comrs <a class="remotelink" href="/tolley/guidance/valueaddedtax/linkHandler.faces?linkInfo=F%23GB%23STC%23sel1%252004%25year%252004%25page%251081%25&amp;A=0.8905674680257544&amp;bct=A&amp;ps=&amp;risb=&amp;service=citation&amp;langcountry=GB" target="_parent">[2004] STC 1081</a>
  • Revenue and Customs Comrs v Board of Governors of Robert Gordon University <a class="remotelink" href="/tolley/guidance/valueaddedtax/linkHandler.faces?linkInfo=F%23GB%23CSIH%23sel1%252008%25year%252008%25page%2522%25&amp;A=0.2926504802443318&amp;bct=A&amp;ps=&amp;risb=&amp;service=citation&amp;langcountry=GB" target="_parent">[2008] CSIH 22</a>, <a class="remotelink" href="/tolley/guidance/valueaddedtax/linkHandler.faces?linkInfo=F%23GB%23STC%23sel1%252008%25year%252008%25page%251890%25&amp;A=0.12344528536894595&amp;bct=A&amp;ps=&amp;risb=&amp;service=citation&amp;langcountry=GB" target="_parent">[2008] STC 1890</a>
  • Weald Leasing Ltd v Revenue and Customs Commissioners (Case C-103/09)
  • The Commissioners for Her Majesty's Revenue &amp; Customs v RBS Deutschland Holdings GmbH (Case C-277/09)
  • Ministero dell'Economia e delle Finanze v Part Service Srl (Case C-425/06)
  • Lower Mill Estate Ltd (2009] UKFTT38
  • Pendragon PLC and others v HMRC <a class="remotelink" href="/tolley/guidance/valueaddedtax/linkHandler.faces?linkInfo=F%23GB%23ALLERD%23sel1%252013%25vol%2507%25year%252013%25page%25278%25sel2%2507%25&amp;A=0.7802528805247048&amp;bct=A&amp;ps=&amp;risb=&amp;service=citation&amp;langcountry=GB" target="_parent">[2013] All ER (D) 278 (Jul)</a>
  • Revenue and Customs v Paul Newey t/a Ocean Finance [2013] CJEU (C-653/11)

HMRC has taken a proactive stance against what it perceives to by aggressive VAT avoidance schemes that are aimed at achieving a tax advantage. A number of the listed schemes that need to be notified have been introduced as a result of litigation between HMRC and businesses who have sought to reduce their overall VAT burden. Please see the Anti avoidance - listed schemes guidance note. HMRC has also introduced further provisions to capture other types of arrangements that are not listed schemes where it is necessary to notify HMRC. More information can be found in the Anti-avoidance - hallmark schemes guidance note.

This guidance note provides an overview of some of the significant case law that has helped to shape the current VAT anti-avoidance provisions that are currently in place.

Emsland-Stärke GmbH v Hauptzollamt Hamburg-Jonas (Case C-110/99)

In this case, the appellant claimed an export refund in respect of goods which were exported to a destination outside of the EU. The goods were, however, immediately re-imported and the authorities demanded repayment of the refund. The ECJ was referred by the European Commission to Council Regulation (EC, Euratom) No 2988/95, art 4(3) which concerns on the protection of the European Communities' financial interests, which states:

“Acts which are established to have as their purpose the obtaining of an advantage contrary to the objectives of the Community law applicable in the case by artificially creating the conditions required for obtaining that advantage shall result, as the case shall be, either in failure to obtain the advantage or in its withdrawal.”

The court considered that a finding of an abuse required:

  • a combination of objective circumstances in which, despite formal observance of the conditions laid down by the Community rules,

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