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PROCEDURE – application to vary directions while original directions under appeal in face of newly presented evidence – whether special circumstances – nature of relevant evidence in cases of ‘supervisory’ jurisdiction – application allowed

Read full decision:

The appellants’ appeals (save that of Magicspellbrewery Ltd) all concern the new alcohol wholesalers registration scheme (‘AWRS’) which was established by s 54 Finance Act 2015 with effect from 1 January 2016.

In brief, the effect of the new legislation was to require all wholesalers of duty paid alcohol to be approved by HMRC. All of the appellants made applications to HMRC under the new legislation to be approved as wholesalers of duty paid alcohol and all except Magicspellbrewery Ltd were refused. Magicspellbrewery’s appeal concerned a refusal by HMRC to register it under the relevant legislation as a Class A and Class B brewer, and for the purposes of this interim hearing there is no relevant difference between it and the AWRS appellants.

All have appealed to this Tribunal HMRC’s decision to refuse to register them under the applicable legislation. It is accepted that they all have a right of appeal and the Tribunal has ‘supervisory’ jurisdiction conferred on it by s 16 Finance 1994. The appeals were lodged with this Tribunal at various times, but all between the dates of January and May 2017.

History of the disclosure direction

Directions in all the above appeals, and other AWRS appeals, were issued without representations from any parties and all required HMRC to disclose: ‘all documents which were considered by [HMRC’s] officer when reaching the decision at issue’

HMRC applied for these directions to be varied in a number of AWRS appeals but its application was unsuccessful by decision of the FTT (Judge Sinfield) dated 15 May 2017. In fact, Judge Sinfield slightly varied the order to require HMRC to indicate which, of all documents ordered to be disclosed, they relied on to support the appealed decision.

5. HMRC appealed the FTT’s refusal to vary the disclosure direction, but the FTT’s decision was upheld by the Upper Tribunal on 6 December 2017. That is not the end of the matter as the Court of Appeal has very recently given HMRC leave to appeal.


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