Case: Reemtsma claims: High Court, not the Tax Tribunal

In Education Training Collective TC 10036, the First-tier Tribunal confirmed that a taxpayer cannot appeal to the Tax Tribunal against HMRC’s refusal of a Reemtsma claim. Instead, the refusal must be challenged by applying for judicial review in the High Court.

The taxpayer, an education and training provider, was charged standard-rate VAT by a construction contractor for services at a college. The services should have been zero-rated. By the time the error was discovered, the contractor was in administration and could not repay the overcharged VAT.

The taxpayer asked HMRC to refund the VAT under the CJEU’s Reemtsma principle, which can require a tax authority to repay VAT improperly charged where it is impossible or excessively difficult for the customer to recover it from the supplier. HMRC refused, saying that the right to bring such a claim based on general EU law principles ended after Brexit.

The taxpayer argued that HMRC’s refusal fell within the Tribunal’s appeal jurisdiction under section 83 VATA 1994, particularly because section 80 concerns repayment of overcharged VAT. The Tribunal rejected this. Following the Upper Tribunal’s decision in Earlsferry Thistle Golf Club, it held that a Reemtsma claim is not within the list of appealable decisions and must be pursued by judicial review.

The decision reinforces HMRC’s position that Reemtsma claims are no longer available post-Brexit. That policy remains debated, but the Tribunal has consistently followed Earlsferry. The wider question of whether Reemtsma survived Brexit remains unresolved until a taxpayer brings a judicial review claim.