My reading of Tax Tribunal decisions suggests a more frequent criticism of HMRC by both the First Tier and Upper Tier for the way they manage VAT and other appeals. This is of great concern as the consequences are invariably a worse outcome for taxpayers.
The decision in Actegy Ltd concerned whether certain products were zero-rated as being designed solely for handicapped persons (Sch 8, Group 12). As you would expect there is substantial case law on this issue. The Tribunal commented (paras 48-49):
Disappointingly, whilst HMRC referenced a number of cases they produced only one paragraph summaries of the cases save for the case of Pure Independence (UK) Ltd  UKFTT 611.
That case concerned bespoke mattresses and toppers which the Tribunal concluded were zero rated. In his judgement, at paragraphs 55 – 66, Judge Reid reviewed a number of previous First-tier Tribunal judgements concerning the application of Item 2(g). HMRC essentially left this Tribunal to find and read the judgments to which they and Judge Reid referred. This the Tribunal has done.
Where a taxpayer is represented by Counsel, one would expect Counsel to provide relevant case law. But the majority of FTT appeals hear the taxpayer in person (a Director in this case). In such circumstances the taxpayer cannot be expected to be familiar with all the relevant case law. It is incumbent upon HMRC to refer to ALL relevant case law even if it is not favourable to its case.
HMRC is not there to oppose the taxpayer in all cases. HMRC has a legal duty to manage VAT fairly. There is a difference!
If you are involved in a VAT appeal do note that HMRC guidance manuals (https://www.gov.uk/government/collections/vat-manuals) refer to case law, but this is sometimes rather selective.
The Actegy Ltd case is here: http://www.bailii.org/uk/cases/UKFTT/TC/2019/TC07005.html
About Les Howard
Hi, I am a VAT Consultant, working mainly with charities. I am based in Cambridgeshire
I have over 20 years experience in VAT, and am currently also a part-time member of the Tax Tribunals.