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You are here: BAILII >> Databases >> First-tier Tribunal (Tax) >> Comveen Ltd v Revenue & Customs [2012] UKFTT 408 (TC) (18 June 2012) URL: https://www.bailii.org/uk/cases/UKFTT/TC/2012/TC02085.html Cite as: [2012] UKFTT 408 (TC) |
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[2012] UKFTT 408 (TC)
TC02085
Appeal number: LON/2008/1801
VAT
- Input tax – Whether
Appellant knew or should have known its transactions were connected to the
fraudulent evasion of
VAT
– Yes – Mobilx
v
HMRC applied – Appeal dismissed
FIRST-TIER TRIBUNAL
TAX CHAMBER
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COMVEEN LIMITED |
Appellant |
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- and - |
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THE COMMISSIONERS FOR HER MAJESTY’S |
Respondents |
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REVENUE & CUSTOMS |
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TRIBUNAL: |
JUDGE |
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SHAHWAR SADEQUE |
Sitting in public at 45 Bedford Square, London WC1 on 8 – 11 and 14 May 2012
Monica Davis, director of Comveen Limited, for the Appellant
Nicholas Chapman, counsel, instructed by Howes Percival LLP, for the Respondents
© CROWN COPYRIGHT 2012
DECISION
1. This is an
appeal, by Comveen Limited (“Comveen”), against the decision of HM Revenue and
Customs (“HMRC”), contained in a letter dated 16 July 2008, that it was not
entitled to deduct input tax in the sum of £865,856.25 in its quarterly VAT
accounting period ended on 30 June 2006 (the 06/06 return) on the
basis that eight transactions to which the claim related were part of a missing
trader intra-community (“MTIC”) fraud which was connected to the fraudulent
evasion of
VAT
and that Comveen knew or should have known that its transactions
were connected to this fraudulent evasion.
3. It was not
disputed that the relevant legal test was that applied by the European Court of
Justice (“ECJ”) in Axel Kittel v
Belgium; Belgium
v
Recolta Recycling (C-439/04
and C-440/04) [2006] ECR 1 – 6161 (“Kittel”) as considered by the Court
of Appeal in the conjoined appeals of Mobilx Ltd (in Administration)
v
HMRC;
HMRC
v
Blue Sphere Global Ltd (“BSG”); Calltel Telecom Ltd and another
v
HMRC
[2010] STC 1436 (“Mobilx”).
4. Moses LJ, giving the judgment of the Court of Appeal in Mobilx, said at [59 -60]:
[59] The test in Kittel is
simple and should not be over-refined. It embraces not only those who know of
the connection but those who "should have known". Thus it includes
those who should have known from the circumstances which surround their
transactions that they were connected to fraudulent evasion. If a trader should
have known that the only reasonable explanation for the transaction in which he
was involved was that it was connected with fraud and if it turns out that the
transaction was connected with fraudulent evasion of VAT
then he should have
known of that fact. He may properly be regarded as a participant for the
reasons explained in Kittel.
(1) Was there a tax loss?
(2) If so, did this loss result from a fraudulent evasion?
(3) If there was a fraudulent evasion, were the Appellant’s transactions which were the subject of this appeal connected with that evasion? and
(4)
If such a connection was established, did the Appellant know or should
it have known that its transactions were connected with a fraudulent evasion of
VAT?
6. It is
clear that in answering these questions the Tribunal is entitled to rely on
inferences drawn from the primary facts (see Mobile Export 365 v
HMRC [2007] EWHC 1737 (Ch) at [20(4)]).
7. With regard to the burden of proof Moses LJ said, at [81], “
“It is plain that if HMRC wishes to assert that a trader's state of knowledge was such that his purchase is outwith the scope of the right to deduct it must prove that assertion. No sensible argument was advanced to the contrary.”
8. However, as the standard of proof was not considered by the Court of Appeal the prevailing authority is the decision of the House of Lords In Re B [2009] 1 AC 1 which was confirmed by the Supreme Court in Re S-B (Children) [2010] 1 AC 678. Lady Hale giving the judgment of the Court said, at [34]:
10. Therefore, the issue before
the Tribunal was whether Comveen, through Mrs Davis, knew or should have known
that its transactions were connected to that fraudulent evasion of VAT.
11. We heard oral evidence from
Mr Craig Panter, the HMRC officer responsible for the extended verification
of Comveen’s
06/06
VAT
return. We also heard from Mrs Davis and Mr Raymond Blow of R J Blow
and Company, Chartered Accountants, Comveen’s accountants. All three provided
witness statements which were accepted as their evidence in chief.
12. We were also provided with witness statements by the following officers of HMRC:
(1) Roderick Stone;
(2) Alison Parrott;
(3) Michael McBrine;
(4)
Romaine Lewis;
(5)
Martin Evans;
(6) Fu Lam;
(7) Dean Walton;
(8) Mark Rendall;
(9) Emma James;
(10) George Edwards;
(11) Mark Jarrold;
(12) Russell Hall;
(13) Nigel Humphries;
(14) Michele Austin;
(15) Gordon Fyffe; and
(16) Daren Cooley.
16. Insofar as the incorporation
and VAT
registration of Comveen is concerned we have adopted the description in
Mr Chapman’s skeleton argument which Mrs Davis accepts, in her skeleton
argument, is “an accurate account”.
17. Comveen was incorporated on
17 December 2004 with a trade description of “Agents in sale of a variety
of
goods”. On 20 December 2004, Gulam Hussain (“Mr Hussain”) was appointed sole
director. His wife Mrs Davis, who had previously worked as a midwife, was on
the same date appointed company secretary. On 11 January 2005, Mr Hussain and
Mrs Davis swapped positions, with Mrs Davis becoming director. She was at the
time of the transactions in issue, the company’s sole director. Mr Hussain
resigned as company secretary on 30 January 2005 and has not, since that date,
held a formal appointment with the company (he has however, continued to fulfil
an unofficial role within the company). From August 2005, the company secretary
has been R J Blow and Company (Comveen’s accountants) and, since April 2006, R
J Blow Secretaries Limited. Comveen’s annual accounts for the year ended 2006
indicated that Mrs Davis was the sole shareholder, with one ordinary £1 share.
18. By a handwritten application
dated 25 January 2005 and signed by Mrs Davis as director, Comveen applied to
be registered for VAT.
In the application form,
VAT
1, Mrs Davis indicated that
Comveen’s intended business activities were “Buying and selling bulk electrical
goods and components. Commercial contracts and services eg, painting,
decorating, cleaning”. Mrs Davis indicated an anticipated turnover of £100,000
in the first year after registration. She also indicated that Comveen expected
to receive regular repayments of
VAT
but indicated that it would not make any
supplies to the EU.
19. In a letter, dated 25
January 2005, which accompanied the VAT
1 application form, Mrs Davis wrote:
Mainly, this company has been set up with the intention of providing services such as building, painting, internally decorating …
This is the same work on a larger scale to what my
husband was doing previously under self employment where he was not achieving
the maximum potential due to not being VAT
registered.
…
Secondly we would like to potentially undertake the buying and selling of wholesale electrical materials or components such as the opportunity may arise in our research by approaching large companies, determining their needs and looking into acquiring them at a good price. We will do this by searches over the internet and other medias such as the yellow pages and business pages. This work will only be attempted in spare office time during office hours.
20. Comveen was registered for
VAT
with effect from 18 January 2005 and was required to submit quarterly
VAT
returns.
22. Since its registration for
VAT
Comveen’s trade has been exclusively in wholesale mobile telephones and
CPUs. Despite anticipating a turnover of £100,000 in its
VAT
1, Comveen’s
turnover during its first year of trading was over £50 million. In the six
accounting periods covering the 15 month period of active trading up to and
including the 06/06 period (the period with which this appeal is concerned)
Comveen’s turnover was £82,779,589 generating input tax repayments of
£992,824.77 on repayment claims totalling £1,827,023.70.
23. Its VAT
returns show the
following net
VAT
declarations in each period:
Period 02/05 – £53.86 repayment claim. Turnover – £nil
Period 03/05 – £67.71 payment. Turnover – £1,319.50
Period 06/05 – £2,755.47 repayment claim. Turnover – £17,203,803
Period 09/05 – £113,059.96 repayment claim. Turnover – £25,065,801
Period 12/05 – £109,418.68 repayment claim. Turnover – £7,812,654
Period 03/06 – £767,479.05 repayment claim. Turnover – £14,670,826
Period 06/06 – £834,334.40 repayment claim. Turnover – £16,706,915
24. Mrs Davis explained that,
while she was trying to make deals on a daily basis, at the beginning of a VAT
period she would seek to purchase from and sell to UK based suppliers and
customers (“buffer deals”) whereas towards the end of the
VAT
period she would
look to purchase goods from a UK supplier and sell to a European Union customer
(“broker deals”). As broker deals are zero-rated for
VAT
purposes, Comveen
would therefore not have to wait as long to make a repayment claim as it would
have if the broker deals were undertaken at the start of a
VAT
period.
25. On 7 March 2005, HMRC Officer
Sue Bransgrove visited
Comveen’s business premises in Luton and met with Mrs
Davis. From the questionnaire completed by Ms Bransgrove it would seem that she
was told by Mrs Davis that the ‘main business activity’ of Comveen was
“Painting, decorating and cleaning for commercial customers” and that its
subsidiary business activity was “trading in wholesale mobile
phones/components. Also when asked for bank details Mrs Davis did not mention
the FCIB account although she did refer to specific accounts for the
“commercial side” and “for trading in phones.”
26. Officer Bransgrove noted
that during the visit
Mrs Davis was “educated about MTIC fraud” and was advised
of the facility offered by HMRC of checking the
validity
of customers and
suppliers
VAT
registration numbers
via
HMRC’s Redhill office (“Redhill checks”).
Third party payments were also discussed and Mrs Davis was issued with Public
Notice 700/53 and Budget Notices 14/03, 15/03 and 17/03 which contained further
information about avoiding involvement in MTIC trading activity.
27. On 20 May 2005 HMRC Officers,
Christopher Hodge and Geoff Swinden attended Comveen’s business premises and
met with Mrs Davis as part of a ‘Post Registration – Summary of MTIC Assurance
Activity’ visit.
29. During a subsequent visit,
on 7 June 2005, by Officers Brown and Ward of HMRC Mrs Davis told them that as
she encountered problems getting Redhill checks she had not undertaken them on
all deals but said she would do so in future. It was confirmed that she was
aware of the joint and several liability provisions. Mrs Davis explained that
she had compiled a ‘trading application form’ to send to Comveen’s prospective
customers and that she planned to make appointments to inspect goods and check
suppliers. As Comveen had continued to make third party payments these were
discussed.
30. On 2 August 2005 HMRC wrote to Comveen in the following terms:
Dear Mrs Davis,
Trading in mobile phones, computers, and associated companies
Comveen Ltd
As you may know the investigation of Missing Trader
Intra-Community (MTIC) fraud continues to be Customs’ top VAT
fraud priority,
and the Department will continue to tackle the criminals behind this type of
fraud. It is not a
victimless
crime; it is robbing the honest taxpayer of
monies that could [be] used to fund essential public services. In addition to
its criminal powers Customs has in place provisions enabling it to impose joint
and several liability on
VAT
unpaid in the type of trades mentioned above.
I am writing to you because as a result of our enquires in respect of your transaction chains in April, we know that of the transactions examined, 3 commenced with defaulting traders, resulting in the loss of revenue exceeding £90,166.
Full details of you sales that resulted in a loss of revenue are as follows:
… [the details of transactions are not relevant for present purposes]
As explained in Notice 726, where you have genuinely
done everything you can to check the integrity of the supply chain, can
demonstrate you have done so, have taken heed of any indications that VAT
may
go unpaid and have no other reason to suspect
VAT
would go unpaid, the joint
and several liability measures will not be applied to you.
However, if you knew, or had reasonable grounds to
suspect, that VAT
would go unpaid then the measure can be applied to you. From
your records you will be able to ascertain who supplied you with the goods
detailed above, and you may wish to consider what appropriate action is needed
to ensure that
VAT
does not go unpaid in respect of any future transactions.
For the avoidance of doubt I should finally tell you
that this letter is without prejudice to any enquiries Customs may be making,
or have made, into transactions with which you have already been involved and
which are in a chain of transactions where VAT
has gone unpaid.
32. Enclosed with her letter were details of Comveen’s due diligence checks which included:
(1) the completion of a trading application form;
(2) a request for two trade references which are followed up and approached in writing;
(3)
Redhill VAT
checks;
(4) Companies House annual return reports;
(5) Freight forwarders reference to ensure satisfactory release record and good trade record;
(6) Dun and Bradstreet credit check;
(7)
site visits
to trading address (with all director information and proof
of trading checked whilst on site);
(8) stock inspection reports;
(9) record of box numbers to ensure that same stock has not been re-circulated; and
(10) a daily log of open market trading prices to ensure stock is not being bought too cheaply without good reason.
34. Officers Brown and Ward made
a further visit
to Comveen on 17 August 2005 and discussed joint and several
liability with Mrs Davis who showed the officers copies of the due diligence
paperwork. She also advised that Comveen had ceased to make third party
payments.
35. A request by Comveen to make
monthly VAT
returns had been refused by HMRC and on 17 March 2006 Mrs Davis
wrote a letter, which she sent by fax, to HMRC to update Comveen’s position. In
the letter she points out that she continually seeks and takes advice from her
local officers on a “
very
regular basis on how to conduct my business within
this
very
delicate trade sector.”
38. It continued by explaining
that in order to assist traders HMRC were notifying them “when there is an
irregularity, so that they may make an informed commercial decision as to the
true purpose of the transaction and any future transactions” before providing
information that checks undertaken by HMRC on IMEI numbers supplied by Comveen in
its 03/06 VAT
period had produced numerous examples of the same mobile phones
having been previously scanned by HMRC at ports and airports. Also 22 of those
phones had been reported as either stolen or had their sim blocked and were
therefore already in general use and circulation prior to having been sold by Comveen
as new stock.
39. Mrs Davis responded to that letter on 13 June 2006 writing:
I am increasingly becoming more and more aware of the problems of MTIC fraud within this trade sector as I myself have been experiencing some difficulties with my bank account.
40. In their reply, dated 14 June 2006, HMRC enclosed Notices 700/52 and 726 and advised Mrs Davis of internet sites which provide checking services on IMEI numbers.
41. Although Notice 726 is
concerned with “Joint and Several Liability” it is made clear (at section 1.3)
that it should be read by all VAT
registered businesses that trade in goods or
services that are subject to MTIC fraud, which includes mobile phones (section
1.4). Section 4.4 of the Notice asks “How can I avoid being caught up in MTIC
fraud?” It is answered in section 4.5 which advises that “reasonable steps” are
taken to “establish the legitimacy of your supply chain and avoid being caught
up in a supply chain where
VAT
would go unpaid.” It continues:
We [HMRC] do not expect you to go beyond what is reasonable. You are not necessarily expected to know your supplier’s supplier or the full range of selling prices throughout the supply chain. However, we would expect you to make a judgement on the integrity of your supply chain.
Although examples of checks are contained at section 8 of the Notice section 4.6 makes it abundantly clear that these are “guidelines” only, as “a definitive checklist would merely enable fraudsters to ensure that they can satisfy such a list.”
42. Comveen submitted its 06/06
VAT
to HMRC on 3 July 2006. The return, which showed output tax of
£2,026,122.16 and input tax of £2,860,456.56 on a turnover of £16,706,915.
These figures relate to 63 transactions undertaken during this three month
period and include 55 buffer deals and eight broker deals.
43. The input VAT
of £865,856.25
reclaimed by Comveen in respect of the broker deals was selected for extended
verification
and subjected to detailed examination before being disallowed by
HMRC in their letter of 16 July 2008. It is the subject matter of this appeal.
45. The sale price of the Nokia
880 Blacks, a zero-rated supply, was £445,250. Comveen had purchased these
mobile phones from IH Technologies Limited (“IHT”), a UK company, for £519,350
(including VAT)
which had, as in the subsequent broker deals, given “advice” Mrs
Davis as to which company to export to. This advice was accepted and followed without
question.
47. The invoices issued to Comveen by IHT clearly state:
All goods remain our property until payment received in full.
Goods will only be released once confirmation received from Forwarding Agents.
Although it did not pay IHT until 20 June 2006 after
being paid by its customer on that date, Comveen instructed freight forwarders,
Total Logistic Solutions UK (“TLS”), in respect of both the Nokia 880s and
Nokia N90s. These phones were inspected by A1 Inspections Limited (“A1”) on 16
June 2006 and transported to Barcelona by road, via
the SeaFrance Dover to Calais ferry on 17 June 2006.
(1) 17:42:07 Marxman International (“Marxman”) a Dubai based company paid £456,750 to Kima Estates SRO (“Kima) a Czech company;
(2) 17:45:23 Kima paid £456,000 to Fone Link;
(3) 18:18:03 Fone Link paid £455,250 to Comveen;
(4) 18:39:07 Comveen paid £519,350 to IHT;
(5) 18:54:10 IHT paid £441,350 to TMEA;
(6) 18:57:08 TMEA paid £440,850 to CDM Commercio SL (“CDM”), a Spanish company;
(7) 19:00:54 CDM paid £440,350 to Maks information Technology (“Maks”) in Pakistan; and
(8) 19:12:15 Maks paid Marxman £456,750
(1) 17:42:07 Marxman paid Kima £823,500;
(2) 17:45:23 Kima paid Fone Link £821,250;
(3) 18:18:03 Fone Link paid Comveen £819,000;
(4) 18:24:04 Comveen paid IHT £934,125;
(5) 18:36:03 IHT paid TMEA £793,050;
(6) 18:45:54 TMEA paid CDM £791,550;
(7) 18:51:02 CDM paid Maks £790,050; and
(8) 19:12:15 Maks paid Marxman £790,050
52. TLS were again the freight
forwarders and the goods were inspected by A1 before purportedly being
transported by road on 20 June 2006, via
the Dover Calais ferry to Barcelona where the Nokia N80s and Nokia 9500s were stamped as received by SAM. Notwithstanding
that Fone Link paid Comveen for the phones (and Comveen in turn paid IHT on 21
June 2006) during a covert inspection by HMRC during the ferry crossing the one
of the lorries which according the documentation was supposed to be carrying
the Nokia N80s goods was found to be empty. As for the Nokia 9500s one of the
lorries was empty and the other was not inspected.
(1) 14:06:02 Marxman paid Kima £737,625;
(2) 14:09:08 Kima paid Fone Link £735,750;
(3) 14:18:07 Fone Link paid £733,875 to Comveen;
(4) 14:33:02 Comveen paid £837,187.50 to IHT;
(5) 15:09:04 IHT paid TMEA £710,875;
(6) 15:15:16 TMEA paid £709,625 to CDM;
(7) 15:18:19 CDM paid Maks £708,375; and
(8) 16:24:07 Maks paid £708,375 to Marxman.
(1) 14:06:02 Marxman paid Kima £729,875;
(2) 14:09:08 Kima paid £728,000 to Fone Link;
(3) 14:18:07 Fone Link paid Comveen £726,125;
(4) 14:30:23 Comveen paid £828,375 to IHT;
(5) 14:36:09 IHT paid TMEA £703,375;
(6) 14:42:12 TMEA paid CDM £702,125;
(7) 14:54:07 CDM paid £700,875 to Maks; and
(8) 15:42:08 Maks paid Marxman £700,975.
56. The freight forwarders used
by Comveen were TLS and the goods were inspected by A1. Although the goods were
sent by road, via
the Dover Calais ferry, and stamped as received by SAM a
covert inspection of the lorry purportedly carrying the phones found it to be
empty.
57. An analysis of the FCIB
accounts showed that in an hour and 45 minutes there was a circularity of funds
between eight participants starting and ending with Marxman via
Kima Surcom,
Comveen, Exhibit, Benton Communications Limited (an Irish company), Techbase
Consulting Limited and Maks. There was no payment to Star Trading which had,
according to the paperwork, eg invoices etc, supplied Exhibit.
59. The phones were inspected by
A1 and TLS was the freight forwarder and were transported by road, via
the
Dover Calais ferry. The lorry was not subject to inspection and the goods were
stamped as received by SAM in Barcelona.
62. Sotodelia’s purchase order,
dated 28 June 2006, requested delivery of the phones to SAM in Barcelona. As in previous transaction the goods were to be transported by road, via
Dover
Calais. The freight forwarder was TLS and the phones were inspected by A1.
Despite being stamped by SAM as being received in Barcelona on an inspection of
one the two lorries transporting the goods it was found to contain only
shredded paper. The other lorry was not inspected.
63. The FCIB accounts again show
a circularity of money movements in a little over two and half hours in regard
to the transactions concerning both the Nokia N91s and Nokia 9500s with both starting
and ending with Marxman via
Techbase Consulting Limited, Sotodelia, Comveen,
IHT, Benton Communications Limited, Diavo Trading, based in Cyprus and Maks.
65. Comveen made a total profit
(before taking into account VAT,
freight forwarder fees etc.) of £181,325 on
the broker deals described above having made a profit in each and every one of
these deals. However, as it was required to pay
VAT
when it purchased the
mobile phones from its suppliers and did not charge its customers
VAT,
as the
transactions were zero-rated supplies, it suffered an overall shortfall of
£684,531.25.
66. Mrs Davis explained that
this shortfall was met through repayments of VAT
in earlier accounting periods,
money that had been lent to her by her and her husband’s family to enable an
investment in Comveen and a loan of £500,000 paid directly into Comveen’s FCIB
account from a Dubai based company, Future Connection FZCO (“Future”) on 27
April 2006.
70. The commercial checks or due diligence undertaken by Comveen on Fone Link, included:
(1)
a VAT
validation
request, which was made on 16 June 2006 the date of the
first and second broker deals; and
(2) the completion, on 19 June 2006 two days after the transactions, of a “Comveen Trading Application Form” by Fone Link.
Although Mrs Davis was informed, on 16 June 2006, that
the VAT
number given for Fone Link was invalid and no credit checks were
undertaken Comveen nevertheless continued to trade with Fone Link and arranged
for the transportation of the goods to Spain.
As for Spanish I actually have a basic knowledge and a dictionary
72. While the check on Surcom’s VAT
number was showed it was
valid,
the request was made on 16 June 2006 four days
before Exhibit had advised Comveen that the stock was available.
73. A positive response to a
request for validation
of the
VAT
number of Sotodelia was received by Comveen
on 16 June 2006 although the transactions with that company did not take place
until Comveen had received Sotodelia’s purchase order on 28 June 2006. Also,
the director of Sotodelia, a Benjamin Cole, signed a “Comveen Trading
Application Form” on 16 June 2006. Despite being given details to obtain a
trading reference neither a trade reference or credit checks on Sotodelia were
taken up by Comveen.
74. Other than “some” site
visits
by Mrs Davis’s husband, no further due diligence checks were performed
on either the freight forwarder TLS or A1 the company charged with inspecting
the goods.
75. With regard to IHT, Mrs
Davis obtained a certificate of VAT
registration, certificate of incorporation,
validation
of the company
VAT
number from HMRC, a trading application form, a
site
visit
report, copy of a telephone bill, copy of a director’s passport, an accountant’s
letter of confirmation and a trade reference from Exhibit. Although this confirmed
the existence of the company but it did not provide any indication as to its
financial position.
77. The commercial checks
undertaken on Exhibit included the acquisition of its certificate of VAT
registration, certificate of incorporation,
validation
of the company
VAT
number from HMRC, a trading application form, a site
visit
report, a photograph
of the premises, an office rental invoice, a director’s passport, accountant’s
letter of confirmation and a trade reference.
80. In its 08/06 VAT
return
period, which corresponds with Comveen’s 06/06
VAT
accounting period, IHT
dispatched goods such as mobile phones, laptop computers and other electrical
equipment to the EU in 40 transactions. All of these transactions can be traced
to one of five defaulting traders. In 35 of these transactions IHT’s EU customer
was Fone Link, Surcom or Sotodelia.
81. In Exhibit’s corresponding
07/06 VAT
accounting period, it dispatched electrical goods, mainly mobile
phones, to the EU in 44 transactions. Of the 41 of these transactions that can
be fully traced, all lead to one of four defaulting traders (which also appear
in the IHT broker chains) and while it is not possible to fully trace the
remaining deal chains it is more likely than not that these too lead to
defaulting traders.
82. The effect of Comveen’s
transactions with IHT and Exhibit was to move any VAT
repayment claims, which
can be traced to fraudulent loss of tax, that would have been made by IHT and
Exhibit to Comveen.
83. Given the evidence of the nature of the transactions, the involvement of participants,
including the contra-traders IHT and Exhibit, taken together with the
circularity of funds that has taken place in the FCIB accounts and the
“phantom” exports, for which goods were stamped as received and payment made, it
would seem highly improbable that Comveen’s broker deals with which this appeal
is concerned were commercial transactions between unconnected parties but were
part of a pre-arranged contrived scheme for the fraudulent evasion of VAT.
84. We have already noted that Mrs
Davis (in our view,
given the evidence, quite properly and realistically)
accepts that Comveen’s transactions were connected to that contrived scheme for
the fraudulent evasion of
VAT.
Therefore, we have to consider whether Comveen,
through Mrs Davis knew or should have known this was the case.
85. During her cross examination
and again during her closing submissions Mrs Davis emphasised that at the time
Comveen was engaged in the transaction she was not aware of any connection to
the fraudulent evasion of VAT
but, looking back at these transactions, she
accepted that she should have known that this was the case.
“…. If a trader should have known that the only
reasonable explanation for the transaction in which he was involved was that it
was connected with fraud and if it turns out that the transaction was connected
with fraudulent evasion of VAT
then he should have known of that fact. He may
properly be regarded as a participant for the reasons explained in Kittel.”
89. Mrs Davis contended that
HMRC had not adduced any direct evidence that she either knew or should have
known that Comveen’s transactions were connected to the fraudulent evasion of
VAT.
90. It is not disputed, and is clear
from Moblix (see paragraph 7, above), that it is for HMRC to establish a
trader’s state of knowledge. With regard to there being direct evidence of
knowledge we remind ourselves that the Tribunal is entitled to rely on
inferences drawn from the primary facts (see Mobile Export 365 v
HMRC
[2007] EWHC 1737 (Ch) at [20(4)]).
91. Before considering whether
Mrs Davis and Comveen knew or should have known of the connection with
fraudulent evasion of VAT
we first examine the whether Mrs Davis was aware of
MTIC fraud and the extent of her knowledge in June 2006 when Comveen entered
into the broker deals with which this appeal is concerned.
92. We note that during the
visit
to Comveen on 7 March 2005 by HMRC Officer Sue Bromsgrove Mrs Davis was “educated
about MTIC fraud” and issued with PN 700/53 and Budget Notices 14/03, 15/03 and
17/03 which contained further information about MTIC fraud. Also when
visited
by Officers Hodge and Swinden on 20 May 2005 Mrs Davis was informed about the
joint and several liability provisions and advised of the need for due
diligence with regard to Comveen’s customers and suppliers. The first paragraph
of the letter to Mrs Davis from HMRC, dated 2 August 2005 (which we have set
out at paragraph 30, above), provides a clear picture of the effect of MTIC
fraud and that tackling it was HMRC’s “top
VAT
fraud priority”. These words
were repeated in the opening paragraph of the letter, dated 31 May 2006, that
was sent by HMRC to Mrs Davis.
93. It is apparent from the
letter Davis sent to HMRC, dated 17 March 2006, in which she refers to the
wholesale trade in mobile phones as “this very
delicate trade sector” that she understood
the risk of potential MTIC fraud as does her letter of 13 June 2006, days
before the first transaction with which we are concerned in which she says she
is “increasingly becoming more aware of the problems with MTIC fraud within
this trade sector.”
95. Turning to whether Mrs
Davis, and therefore Comveen, knew or should have known of the connection with
the fraudulent evasion of VAT
we note that although referred to as a secondary
intention on its application for
VAT
registration Comveen only traded in CPUs
and mobile phones and did not engage in its intended primary trade of providing
building, painting and decorating services. This, and the fact that an FCIB
bank account was opened in February 2005 through which the wholesale trade was
operated indicates to us that the primary reason for establishing Comveen was to
carry out the wholesale trade in CPUs and mobile phones. We also note, that
this account was not disclosed to HMRC when bank details were requested in
March 2005
96. Comveen does not appear to
have taken any risk in its wholesale trade as it made a profit in each of its
broker deals which appear to have been handed to it “on a plate”. Mrs Davis was
advised by Comveen’s supplier which company to sell to, advice she always
accepted. Mrs Davis’s contention that this is not uncommon is, in our view,
simply not credible. In a genuine market the supplier would be expected to
trade with the end customer to maximise its profits, the inclusion of a third
party such as Comveen does not appear to have any commercial purpose.
97. Further lack of
commerciality in the transactions can be seen from the fact that the goods,
despite their high value,
were not insured. Also, with regard to the mobile
phones supplied by IHT, Comveen’s supplier in six of the eight broker deals, although
the goods remained its property until payment in full (see paragraph 47,
above), IHT allowed Comveen to ship goods to Spain without payment and was not
paid until after Comveen received its money.
98. Another relevant factor is
Mrs Davis’s participation in the circularity of funds through the FCIB accounts
of various
parties at the correct time and correct order. Also, when she was
unable to make the payment herself after being advised the money had been
transferred to Comveen’s account Mrs Davis gave IHT her authority to make the
payment on Comveen’s behalf to ensure the
payment sequence and circularity of money was unbroken.
100. We also note the
lack of meaningful commercial checks by Mrs Davis on Comveen’s customers and
suppliers. For example Mrs Davis was informed on 16 June 2006 that the VAT
number for Fone Link that she had provided to HMRC to check its
validity
was not
valid.
Despite this she continued with the deal on the same day. Also Comveen’s
trade application form was completed by Fone Link two days after its first
dealings with company and the check on Surcom was undertaken four days before
being advised that stock was available. We also wonder whether a basic
knowledge of Spanish and a dictionary would have been sufficient to understand
the information provided by Comveen’s Spanish customers as part of its due
diligence procedures.
102. As such, we find
that only reasonable inference that can be drawn, having regard to all the
circumstances of the case, is that it was more likely than not that Mrs Davis,
and therefore Comveen, did know that the transactions with which this appeal is
concerned were connected with the fraudulent evasion of VAT.
103. However, even if
this were not case we find, for the above reasons, that the only reasonable
explanation for the transactions, with which Comveen was involved, is that they
were connected with the fraudulent evasion of VAT
and therefore, as Mrs Davis
herself admitted, Comveen should have known that this was the case.
104. As such, we find
that HMRC made the correct decision that Comveen was not entitled to deduct
input tax in the sum of £865,856.25 claimed in its 06/06 VAT
return
105. In a direction
released on 26 April 2010 Judge John
Walters QC directed “Rule 29 of the
VAT
Tribunal Rules 1986 (relating to costs) will apply to this appeal in place of
Rule 10 of the Tribunal Procedure (First-tier Tribunal)(Tax Chamber) Rules
2009, pursuant to paragraph 7(3) of schedule 3 (Transitional and Saving
Provisions) to the Transfer of Tribunal Functions and Revenue and Customs
Appeals Order 2009.” The effect of this direction is to give the Tribunal a
general discretion as to costs.
106. While, in view
of our conclusion it is appropriate to award HMRC its costs of and incidental
to and consequent upon the appeal, we consider that we should express some concern
about the amount of material placed before the Tribunal (in 64 lever arch
files) for a hearing listed for five days especially given the admission by Mrs
Davis that Comveen’s transaction were connected to the fraudulent evasion of
VAT
and that the only issue before the Tribunal was the question of whether
Comveen knew or should have known that its transactions were so connected. As
we were only taken to five of the 64 bundles we trust that this is matter that
will be addressed by HMRC in quantifying its costs of the case.