18820
Jurisdiction – whether imposition of VAT on the Appellant is state aid within the meaning of Article 92 of the EC Treaty – No:  whether the Appellant was entitled to argue that it  should be recognised as a University – No: VATA 1994 Section 83 – Item 1 Group 6 Schedule 9 VATA 1994 – EC 6th Directive Article 13 (1)(j), 2.

EDINBURGH TRIBUNAL CENTRE

            JOHN PAGE/EMPOWERMENT ENTERPRISES LTD    	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	       Respondents

			Tribunal:	 T GORDON COUTTS, QC (Chairman)

Sitting in Edinburgh on 20 October 2004.

for the Appellants		Mr Bernard Rice

for the Respondents	Ms Gillian Carty, Shepherd & Wedderburn, WS

© CROWN COPYRIGHT 2004.

DECISION

INTRODUCTORY
The principal of the Appellant Company is the same John Page whose appeal against the Commissioners’ ruling that supplies of private tuition were not exempt supplies.    In that case his Counsel presented the appeal on the basis that Mr Page was providing private supplies not by any institution or employer, although, said Counsel had Mr Page incorporated his Institute into a Limited Company the exemption would not apply.  (Decision 16650).

STATE AID
	The next stage seems to be that the Appellant Company was incorporated and now seeks to present a new argument that the supplies of teaching made by Mr Page are an exempt supply.    One part of the grounds of appeal, which were amended shortly before the date set down for hearing, was that the imposition on the Appellant of VAT meant that the Government were providing state aid in terms of Article 92 of the European Community Treaty. 

	That contention can be shortly dealt with.  It is not an appealable matter under Section 83 of the VATA 1994 which provides the jurisdiction of this Tribunal, which is a statutory body.    Accordingly that portion of the amended grounds of appeal is irrelevant and shall be deleted.

IS THE APPELLANT TO BE EQUIPARATED WITH A UNIVERSITY
	A further contention was that the Appellant was an organisation whose objects were similar to those of a University and that the Commissioners were obliged to ascertain whether the Appellant can be recognised as a University under UK legislation or whether it meets the requirements of a University under European Community principles.    

	In what to the Tribunal appeared to be a somewhat unfocussed argument the Appellant’s representative seemed to think that because in certain other cases the ECJ had said that matters of status were for determination by the national court and also because  in  an application for judicial review the Court of Appeal in R v Customs and Excise Commissioners, ex parte Lunn Poly Ltd 1999 STC 350, (a case in relation to insurance premium tax and not VAT at all, discussed the responsibility of domestic courts to provide a remedy if a provision in national legislation conflicted with a requirement of the Treaty was discussed in a different process and before a Court.  That matter has no application to the present discussion.    The decision in Gregg v the Commissioners ECR 1999 I-04947, Case 216/97 was cited.  There the Appellant argued that because a discussion took place as to the qualification of natural persons to fall within “other duly recognised establishments of a similar nature” meant that the question whether this limited liability company, the Appellant, could be considered a University was a matter which the Tribunal must investigate and upon which it could pronounce.

	The Tribunal’s view of this argument, unsupported as it was by any relevant UK or ECJ authority was that it had to be rejected.     “University” is a recognised term and a University is a body which achieves specific national recognition.   A limited liability company providing services, albeit of tuition in matters which have been conceded as suitable for teaching in a University, cannot be defined as a university and the argument that  it is or could or should be so seen is unsound and extravagant.    

	In any event no part of Section 83 of VATA 1994 would  in the view of the Tribunal be apt to authorise some general enquiry as to the status of the Appellant.   It is not and has not been shown prima facie to be a University in any material or argument before the Tribunal nor even that it resembled such a body.  That argument in the grounds of appeal also falls to be rejected as irrelevant and deleted.

	The remaining issues between the parties were agreed to be suitable for enquiry.  That will proceed at a date to be fixed with an Agreed Statement of Facts to be provided by the parties to the Tribunal 14 days before the date set for hearing.

T GORDON COUTTS, QC

CHAIRMAN

RELEASE  25 OCTOBER 2004.

EDN/04/22

££Page (t/a Empowerment Enterprises Ltd) v Customs and Excise [2004] UKVAT V18820 (25 October 2004)