The company behind Toys R Us property portfolio has lost an appeal at the Upper Tribunal over a £3.5m VAT rebate
Initially Bollinway Properties submitted a VAT return of £71,170,729 regarding the sale of Toys R Us properties on 17 September 2018 for £355,853,648, plus VAT. The appellant then claimed a repayment supplement of 5% of the £71m, being £3.5m.
Bollinway brought the appeal to the Upper Tribunal after losing the original case at the First Tier Tribunal (FTT) in September 2021 over whether HMRC has delayed payments.
At the time, Bollinway relied on section 79 of the VAT Act 1994, accusing HMRC of delaying payments past the 30-day period. This was rejected by the FTT.
At the Upper Tribunal, Bollinway argued that it was due the refund as a result of four conditions, including that the claim was made in ‘due time’.
The company also claimed that HMRC had not issued written instruction within the relevant period of 30 days.
The judge at the FTT acknowledged that the time period between HMRC receiving the request and responding was 49 calendar days although it was accepted that HMRC had additional enquiries in this time period where there had been contact between the two.
HMRC was requesting documents regarding the sale and purchase invoices which Bollinway said they did not have the information about as it was still with their client who was covered by an existing email protocol.
This request from HMRC was deemed as reasonable enough for the days in between the 49 days, therefore reducing the days it took HMRC to respond fully reducing the period to 26 days.
The judge at the Upper Tribunal dismissed the appeal once again saying: ‘It follows that, in our judgment, the FTT judge was entitled to find that the period from 23 November to 18 December – amounting to 26 days – should be excluded from the total of 49 days from 2 November until 20 December.
‘The parties agree that in order to succeed in the appeal before us, Bollinway must succeed on Ground 3 of the grounds upon which permission was granted. It has not done so.’
The Upper Tribunal dismissed the appeal.
Court dismisses £3.5m Toys R Us VAT claim - FTT ruling