Businesses could seek hundreds of millions of pounds in VAT repayments after
the taxman lost a landmark carousel fraud case.
Livewire Telecom successfully appealed against HM Revenue & Customs for
refusing to repay £2m in tax withheld on the suspicion that the trader should
have known it was trading in a carousel fraud chain.
The case is understood to be the first to test rules on whether companies
have ‘knowledge or means of knowledge’ of frauds in carousel fraud chains.
The verdict sets up a high burden of proof for Customs’ officials hoping to
Carousel fraud has been HMRC’s biggest fraud issue to tackle in recent years,
costing the UK billions of pounds a year.
HMRC had withheld VAT from traders involved in fraud chains, until challenged
by Bond House. A ruling in that case decided that traders could only be denied
the tax if they had knowledge, or means of knowledge, of the frauds.
Dr Avery Jones, chairman in the Livewire tribunal, found that HMRC could not
prove that Livewire was aware it was part of a fraudulent chain despite some odd
patterns of trading.
‘Looking at the totality of the evidence, we have identified a small number
of odd features but neither separately nor when taken together do they come
anywhere near to indicating knowledge or means of knowledge of the fraud (i.e.
the fraud by the missing traders) by the appellant,’ said Dr Jones.
He said HMRC could not rely on the trader knowing that carousel fraud exists
and that customs needed to provide ‘cogent’ evidence of knowledge or means of
knowledge. A company only has to take ‘reasonable’ precautions and shouldn’t
have to police carousel fraud themselves.
Vantis, which conducted the appeal on behalf of Livewire, said the ruling was
‘In winning this case we have been able to overturn HMRC’s most common and
damaging misconceptions about trading in the mobile phone grey market and we
have also succeeded in setting a number of important legal and factual
benchmarks, which will impact upon future cases of this type,’ said Vantis Tax
managing director Don Mavin.
Paddy Behan, head of indirect tax services at Mercury Tax Group, said the
decision was a ‘major setback’ for HMRC: ‘HMRC hasn’t struck the balance between
protecting revenues and the rights of innocent businesses.’
HMRC said it is considering whether or not to appeal.
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