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Express Medicare Limited v. Commissioners of Customs & Excise – VAT Tribunal

The Appellant had provided incontinence pads to nursing homes for named residents. The issue was whether the supply of those incontinence pads was zero-rated within the terms of Group 12, item 2(g), Schedule 8 Value Added Tax Act 1994. The Commissioners took the view that they were not and they assessed them as standard-rated by reason of s.47(2A) VATA 1994. The Commissioners argued that the supplies of the incontinence pads had been made to the nursing homes, and not to the handicapped persons by virtue of that provision. The Tribunal did not accept the Commissioners argument and it took an examination of both English and French and other language versions of Article 5.4(c) of the Sixth EC VAT Directive. They took the view that the English language version differs radically from the French version and that the English language version incorrectly dealt with the term “contrat de commission”.

In allowing the taxpayers appeal the Tribunal held (see, in particular, paragraph 48 of the decision) that the words “acts in his own name” in s.47(2A) VATA 1994 do not cover an agent acting expressly on behalf of a named principal. The wording of that provision cannot be reconciled with Article 5.4(c) in the English version which itself is different from the French version. Section 47(2A) treats goods in the way of services whereas they are covered by different articles of the Directive with totally different wording. Section 47(2A) did not apply the services and the appeal was therefore allowed.

Hugh McKay, instructed by the Solicitor of Customs & Excise, for the Respondent

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