Revenue and Customs Brief 4 (2022): End-customer claim refunds of VAT wrongly charged

HMRC have published Revenue and Customs Brief 4 (2022): ‘End-customer claim refunds of VAT wrongly charged’. This brief details how end-customer claims to HMRC for refunds of VAT which has been overpaid to a supplier are impacted following the UK’s withdrawal from the European Union (EU). 

Background

• Under section 80 VATA 1994, the only person entitled to claim back overpaid VAT from HMRC is the person who accounted for it in their VAT return. 
  • This position was supported in HMRC v Investment Trust Companies [2017] UKSC 29.
• Where an entity believes it has overpaid VAT to a supplier, it should make a claim to that supplier for repayment. The supplier may then make a Claim to HMRC.
• The Investment Trust Companies case acknowledged that under general EU law principles, where it is impossible or excessively difficult for a customer to obtain reimbursement from the supplier, the customer may be able to bring a claim against HMRC.
  • An example may be where the supplier is insolvent.
• In response, HMRC issued Revenue and Customs Brief 4 (2017), which outlined that:
  • The circumstances where a third-party customer could make a claim directly against HMRC were extremely limited.
  • Where a third-party customer believed they had a valid claim, they should bring their claim in court.

Current position

Revenue and Customs Brief 4 (2022) now replaces Revenue and Customs Brief 4 (2017).

• From 1 January 2021, the right of action based on a failure to comply with any of the general principles of EU law ended as a result of the UK’s withdrawal from the EU.
• This includes the right of a third-party customer to make a claim against HMRC in the circumstances described above.

Claims made before 1 January 2021 are unaffected.

Useful guides on this topic

Reclaims and unjust enrichment
When can VAT reclaims be made? What are the time limits? What is unjust enrichment? Why might unjust enrichment prevent HMRC making VAT repayments? 

Correcting VAT errors
What are the VAT error correction time limits? Can you correct errors through the VAT return? Do you have to notify HMRC?

What constitutes a valid VAT invoice?
What needs to be included on a VAT invoice? Can you claim back VAT without an invoice? What evidence do you need to claim input VAT? A valid VAT invoice is required to reclaim input VAT. HMRC have the discretion to allow defective invoices. 

External links

Revenue and Customs Brief 4 (2022): End-customer claim refunds of VAT wrongly charged

Revenue and Customs Brief 4 (2017): judgment of the Supreme Court in Investment Trust Companies (replaced by above)

HMRC v Investment Trust Companies [2017] UKSC 29