Apollinaire Ltd & Anor v The Commissioners for HMRC
Decision date: 21 November 2022
Neutral citation: [2022] UKFTT 432 (TC)
Overall AI summary confidence: high
Short overview
This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.
AI confidence in this short overview: high
This appeal concerned whether transfers of stock and business from Snow Whyte Ltd to Apollinaire Ltd in late 2015 amounted to a transfer of a going concern (TOGC) restricting Apollinaire's input tax recovery, and whether Mr Hashmi, as sole director, was personally liable for a deliberate inaccuracy leading to a Personal Liability Notice (PLN). The Tribunal found on the balance of probabilities there was a TOGC, upheld HMRC's best-judgment VAT assessments (including disallowance of certain input tax and misuse of the retail scheme), and accepted that the deliberate inaccuracy was attributable to Mr Hashmi, so the PLN was rightly issued. All appeals were dismissed.
Ratio decidendi
This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.
AI confidence in this ratio decidendi summary: high
Where contemporaneous evidence shows a seamless continuation of trade — same trading name, premises, staff, till/MA terminal and continuous till records — the transfer will, on the balance of probabilities, be treated as a TOGC for VAT purposes; and an officer who is the controlling mind of the companies and gives inconsistent or unreliable explanations (failing to obtain proper advice) can be held personally liable for a deliberate inaccuracy under Schedule 24 FA 2007.
Obiter dicta
This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.
AI confidence in this obiter dicta summary: medium
The Tribunal indicated that extensive and shifting witness accounts, failure to produce documentary evidence and suspicious non-production or doubtful existence of key third parties undermine credibility and support enforcement, and that contemporaneous third‑party records (eg Google Street View, till rolls, landlord statements) can be persuasive in determining trading continuity.