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Gary Peacock

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>3) High Court hearings are best avoided, the quality of justice is arbitrary, the time allowed is very short (I have seen some cases decided in less than a >minute) and the basis of the decision will, by default, be on the strict application of the law regardless of the justice of it. They operate on the assumption that >if you are unhappy you can always appeal. It seems to me that the High court is for deciding matters of law and the appeal court is for deciding matters fo >Justice.

 

Beg to differ. VAT Tribunal is the first/lower court to deal with the matter, appeal on that is to the High Court Chancery Division and any further appeal is to the Court of Appeal. My evidence from letters from HMRC policy division on QS and in letters to me - "was bring it on - see you in court". HMRC only started to back down after I had instructed counsel, but then would not come to a satisfactory s85 agreement.

 

My VAT Tribunal was OK, although got off to a very bad start with the site visit. But my appeal was allowed. I could have represented myself, but the best advice was to instruct counsel, which I did. HMRC then appealed to High Court Chancery Division. Judge was a VAT expert from 1970s/80s and had been brought back from retirement for the case which lasted 1 1/2 days. Judgement took 5 weeks to appear, and involved a fair amount of correspondence between counsels, and then me. High Court judgements are only made on the same day if the hearing is less than a day. HMRC having lost at the High Court decided not to apply for a High Court of Appeal hearing - it is no longer an automatic right to be able to go CoA.

 

20489, while great news for the appellant, is I think mistaken in law and is subject to be commented negatively by a future court - just as my HC Judge commented on the Everett (1994) and Grieves (2007) Tribunals.

 

For a brief on dealing with Tribunals and HC see - www.luxe-motor-kei.co.uk/vat.htm

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Beg to differ. VAT Tribunal is the first/lower court to deal with the matter, appeal on that is to the High Court Chancery Division and any further appeal is to the Court of Appeal. My evidence from letters from HMRC policy division on QS and in letters to me - "was bring it on - see you in court". HMRC only started to back down after I had instructed counsel, but then would not come to a satisfactory s85 agreement.

As I have experienced it the first court can be either a Tribunal or an initial High Court judgment with leave to appeal, at least I have been given leave in both instances in the past. I am informed that the findings of a Tribunal carry the weight of a High Court judgment but may have been misinformed. I am glad you had a good experience with counsel, it isn't always that way, I have often observed counsel doing an appalling job for their clients in the High Court but they never seem to lack competency in billing!

 

My VAT Tribunal was OK, although got off to a very bad start with the site visit. But my appeal was allowed. I could have represented myself, but the best advice was to instruct counsel, which I did. HMRC then appealed to High Court Chancery Division. Judge was a VAT expert from 1970s/80s and had been brought back from retirement for the case which lasted 1 1/2 days. Judgement took 5 weeks to appear, and involved a fair amount of correspondence between counsels, and then me. High Court judgements are only made on the same day if the hearing is less than a day. HMRC having lost at the High Court decided not to apply for a High Court of Appeal hearing - it is no longer an automatic right to be able to go CoA.

I think that this was where the quality of your counsel showed, getting it listed for 11/2 days was a result and allowed the necessary time to properly present the case.

 

20489, while great news for the appellant, is I think mistaken in law and is subject to be commented negatively by a future court - just as my HC Judge commented on the Everett (1994) and Grieves (2007) Tribunals.

I suspect that HMRC saw this as potentially dangerous to their cause. If it had been appealed and lost a precedent would possibly have been set that would have cost them a lot of revenue and it wasn't worth the risk. Best to let it lie...

 

For a brief on dealing with Tribunals and HC see - www.luxe-motor-kei.co.uk/vat.htm

I had a look, very nice boat, very nice reporting... I agree with your inference that it should not fall to the individual taxpayer to fight this sort of battle but as yet no-one has come up with a better idea and at least it gives rise to a spirited case.

 

Kind Regards

 

Arnot

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The VAT tribunal route does seem to bring a change of attitude I spent 4 plus years trying to sort out VAT issues we inherited with the order book, the true barges were quite simple but the narrowboats weren't. But following the Richard Fee tribunal decision and subsequently our intension to present exactly the same case to tribunal again did result in an almost immediate reversal of the assessment and the refund of the VAT on the narrowboats along with interest.

 

Now the case was fairly complex and involved a lot of people over the years and was at least some kind of result, but in reality this in no way made up for the £300K plus of cancelled orders for broad boats that were built by other builders VAT free without any action being taken and the subsequent redundancies this caused.

 

We never actually wound up the company while this was going on it existed on paper purely to carry on the battle for a number of years. I have to say that on the refund of the VAT that was done very quickly leaving me personally out of pocket to quite a few thousand pounds but very glad to see the back of the whole affair.

 

It really comes down to how much you are up to getting into a fight and considering if the return is worth it?

Edited by Gary Peacock
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You begin to tread in difficult ground here if you consider the living space to be a break then you imply that it a deck structure so it's roof can't really be the deck can it?

 

The guidance (Remember that is all it is!) only makes specific provision for where the measurement of depth should be taken in narrowboats for other vessels the general rules apply. (and probably in law do too narrowboats) So you need to consider the wording of the guidance for the length measurement (the full hull) and for depth if you consider the roof to be a deck then that is your measurement.

 

Remember a break is a raised portion of deck not a low portion of deck you need to look at the Ricard Fee tribunal to see how he demonstrated his beliefs to the VAT tribunal. (Some would say he was incorrect but HMRC did not appeal the decision)

 

Considering the volume of boats the New boat Co sell and have sold it might be worth asking them if they along with their customers would like to get on board for the battle.

 

It's a shame it isn't a barge because it would in theory be a lot simpler with calculation criteria clearly met.

 

 

Thanks for that Gary. I am awaiting a reply from HMRC and will post an update in due course.

 

Paul

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Surely Paul's 60' x 11' widebeam is a barge?

 

Paul, if you ever get your head around this, decide to do something and you and want to approach NBC with other customers in a sort of "class action" please let me know (PM me).

 

Mine is a 2005 57' x 12' widebeam.

 

Cheers

 

Mike

 

Hi Mike,

 

I will let you know in due course once I have done a bit more research. I believe that there is a three year cut off for a VAT refund if due, so in your case it may be worth writing to HMRC and the NBC with a view to at least registering a claim. I don't know if this will help preserve the time limit, but it may do if things drag on - Something to think about. Maybe someone else on the forum knows the answer to this.

 

Good luck

 

Paul

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I recommend reading the Statutory Instrument 1996/1510 and in particular the definitions:

 

Some definitions from SI 1997/1510:

 

"breadth" means the maximum breadth of the ship, measured amidships to the moulded line of the frame in a ship with a metal shell and to the outer surface of the hull in a ship with a shell of any other material;

"break" means the space bounded longitudinally by a side to side upward step in the lowest line of the upper deck and another such step or the end of the ship, transversely by the sides of the ship and vertically by the higher part of the deck and the lowest line of the upper deck continued parallel thereto;

 

"length overall" means the distance between the foreside of the foremost fixed permanent structure and the afterside of the aftermost permanent structure;

 

"moulded depth", and in the case of a ship of less than 24 metres "depth", means the vertical distance measured from the top of the keel of a metal ship, or in wood and composite ships from the lower edge of the keel rabbet, to the underside of the upper deck at side, or, in the case of a ship which is not fully decked, to the top of the upper strake or gunwale, provided that -

 

(a) where the form at the lower part of the midship section is of a hollow character, or where thick garboards are fitted, the distance is measured from the point where the line of the flat of the bottom continued inwards cuts the side of the keel;

 

(:lol: in the case of a glass reinforced plastic ship where no keel member is fitted and the keel is of open trough construction, the distance is measured from the top of the keel filling, if any, or the level at which the inside breadth of the trough is 100 millimetres, whichever gives the lesser depth;

 

© in ships having rounded gunwales, the distance is measured to the point of intersection of the moulded lines of the deck and side shell plating, the lines extending as though the gunwales were of angular design; and

 

(d) where the upper deck is stepped and the raised part of the deck extends over the point at which the moulded depth is measured, the distance is measured to a line of reference extending from the lower part of the deck along a line parallel with the raised part; and for the purposes of this definition -

 

 

 

(i) "upper deck" means the uppermost complete deck exposed to weather and sea, which has permanent means of weathertight closing of all openings in the weather part thereof, and below which all openings in the sides of the ship are fitted with permanent means of watertight closing. In a ship having a stepped upper deck, the lowest line of the exposed deck and the continuation of that line parallel to the upper part of the deck is taken as the upper deck; and

 

I do not believe that the "cabin roof" can be legitimately claimed as upper deck of a vessel unless the openings in the ends and sides meet the watertight closing criteria.

 

(ii) "weathertight" means that in any sea conditions water will not penetrate into the ship;

And the tonnage calculation:

 

The tonnage of a ship shall be the sum of -

 

(a) the product of multiplying together its length overall, extreme breadth over the outside hull and depth in metres and multiplying the resultant figure by 0.16; and

 

(:lol: the tonnage of any break or breaks, calculated for each break by multiplying together its mean length, mean breadth and mean height in metres and multiplying the resultant figure by 0.35.

 

 

As I have said earlier, the 20489 Tribunal seems odd and I am amazed that HMRC did not appeal it.

 

Also as I have said before, bite the bullet and ask HMRC for a written ruling having given them all the details as required in VAT Notice 700/6. You may well have to draft such a letter from your chosen boat builder to send as HMRC invariably hide behind the fact that the issue lies with the supplier and not the customer.

 

Speculating here on the VAT status from various opinions probably won't help - and no company is going to either zero rate or claim VAT back on the basis on the advice given on this forum.

 

 

Hi Colin,

 

Thanks for that. In relation to the 20489 Tribunal, could it be that the ‘weathertight’ criteria outlined in the Merchant Shipping Act (between decks) was not pursued by HMRC because it has no relevance to an inland waterways craft which is surely only required to be weathertight to the extent that it meets the requirements of the environment for which it is designed and used. The relevant legislation that covers this I believe is the Boat Safety Scheme and presumably not the Merchant Shipping Act. If HMRC were to insist on the Merchant Shipping ‘weathertight’ criteria, it seems to me that a Tribunal may well decide that in the balance the HMRC argument is not reasonable. What do you think?

 

Paul

 

PS Congratulations on your case.

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Hi Mike,

 

I will let you know in due course once I have done a bit more research. I believe that there is a three year cut off for a VAT refund if due, so in your case it may be worth writing to HMRC and the NBC with a view to at least registering a claim. I don't know if this will help preserve the time limit, but it may do if things drag on - Something to think about. Maybe someone else on the forum knows the answer to this.

 

Good luck

 

Paul

 

Thanks Paul,

 

I did write to HMRC a couple of months ago to enquire about a VAT refund and they replied (about a month later) with what I suppose is their default response to such enquiries. Anyway, from Gary's posts it sounds all but impossible for a NB style widebeam to get a refund and unfortunately for me the three year cut off period ended a few months ago.

 

Anyway, good luck with your claim.

 

Mike

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Hi Colin,

 

Thanks for that. In relation to the 20489 Tribunal, could it be that the ‘weathertight’ criteria outlined in the Merchant Shipping Act (between decks) was not pursued by HMRC because it has no relevance to an inland waterways craft which is surely only required to be weathertight to the extent that it meets the requirements of the environment for which it is designed and used. The relevant legislation that covers this I believe is the Boat Safety Scheme and presumably not the Merchant Shipping Act. If HMRC were to insist on the Merchant Shipping ‘weathertight’ criteria, it seems to me that a Tribunal may well decide that in the balance the HMRC argument is not reasonable. What do you think?

 

Paul

 

PS Congratulations on your case.

 

Paul,

 

You could be right - although MSA is used by HMRC for other aspects such as gross tonnage. I find it all a bit odd as even to the untrained eye it is fairly obvious which is upper deck and which is superstructure. BSS does not actually cover hull structure, anchors, ropes etc. It only covers those items that may damage other people and property - gas be the most obvious. Bit silly as a rope parting and a hull drifting into a lock/weir/other craft etc etc can do alot of damage. The French equivalent of the BSS has much more on hull structure and systems.

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  • 2 weeks later...
Since Waterways World seem to have managed to print a completely incorrect interpretation of a way to avoid paying VAT on a boat plus it seems or doesn't seem depending on who his giving the lesson that if you have a tug or butty combination built the tug can be supplied VAT free.

 

 

Then do you think that VAT should be payable on residential boats?

 

The subject is complex but to highlight it in simple terms you don't pay VAT on a house, caravan or house boat if it is for residential use the scope to provide VAT relief for boats built for residential use at present under law does not exist but should it?

 

After all when I was involved in a similar "discussion" before a rather high ranking civil servant told me that "only a handful of people live or would consider living on boats" and when I went on to mentioned VAT relief on residential caravans he then went on at length about not upsetting the Gypsy/Traveller community that would "make waves" if they had to pay VAT on new caravans. :lol:

 

Anyway it doesn't make any difference to the boat builders if you pay VAT or don't but is seems the powers that be look down on and don't even acknowledge that anybody lives on the water. :lol:

 

Hi all,

 

This request is particularly directed to both Gary and Colin, however, all advice is welcome.

I am attempting to locate a VAT expert who would be familiar with the ‘ins and outs’ of ‘Qualifying Ship Status’. In your investigations and dealings to date with HMRC is there anyone who you would recommend.

 

Many thanks

 

Paul

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  • 10 months later...

HMRC have recently sent me the updated brief below. This may be of interest to owners of qualifying craft who use their vessel residentially.

 

Paul

 

 

Revenue & Customs Brief 38/09

VAT - 'Dutch barges' and similar vessels designed for and used as permanent residential accommodation by owners

Who needs to read this?

Businesses making supplies of:

 

vessels to be used for permanent residential living by the owner

certain goods and services to the owners of vessels used for permanent residential living by the owner

This brief also withdraws Section 4 of Business Brief 35/04 VAT - clarification of the VAT liability of ships supplied to customers who intend to use them as residential accommodation.

 

Background

'Qualifying ships' - are zero-rated for VAT purposes. A 'qualifying ship' is defined as a ship which is not less than 15 gross tons and is neither designed nor adapted for use for recreation or pleasure. The law is set out in the Value Added Tax Act 1995, Schedule 8, Group 8, Item 1 and legal note A1(a).

 

'Houseboats' - are covered by a separate zero-rate. For VAT purposes, 'houseboats' are boats designed as living accommodation that do not have, and cannot be fitted with, a means of propulsion. If a boat can be fitted with a means of propulsion, it is not a 'houseboat'. The law is set out in the Value Added Tax Act 1995, Schedule 8, Group 9, Item 2.

 

H M Revenue & Customs (HMRC) policy

In the light of the High Court decision in the case of Lt Cmdr Colin Stone [2008] EWHC 1249 (Ch), HMRC are changing their long-standing policy on the liability of vessels used as residential accommodation, excluding houseboats, for VAT purposes. This case concerned the VAT liability of the supply of 'Dutch barges' acquired for the purpose of being used as a permanent residence.

 

The High Court decided that the supply of the vessel was entitled to zero-rating under the terms of UK law, because it was designed to be lived in as a permanent home and, therefore, not designed for use as recreation or pleasure.

 

HMRC consider that many of these and similar vessels, although designed for use as a permanent residence, can also be designed for use as recreation or pleasure and are perfectly capable of being so used. It was never the intention that UK legislation should provide for the supply of such vessels to benefit from zero-rating but, following Tribunal and Court decisions over time, HMRC have found it increasingly difficult to apply a consistent and coherent policy around the borderlines in this area.

 

HMRC do not rule out a wider review of policy and legislation in this area. However, in the meantime, we have decided to treat Dutch barges and similar vessels that are designed and supplied for use as the permanent residence of the customer as qualifying ships and eligible for zero-rating. As vessels of less than 15 gross tons can never be zero-rated regardless of their design, the majority of narrow boats designed for permanent residential use will not meet this requirement and their supply will continue to be standard-rated.

 

As a result of this policy change some supplies of goods and services to the owners of such vessels may also be zero-rated by suppliers.

 

These include:

 

repairs and maintenance of the vessel itself; this does not extend to the domestic equipment and fittings on board

modification or conversion of the vessel itself provided that it remains a qualifying ship after modification or conversion; this does not extend to domestic equipment and fittings

parts and equipment ordinarily installed or incorporated in the propulsion, navigation, communications or structure of a ship; this does not extend to domestic equipment and fittings

Further details can be found in Notice 744C.

 

Evidence of intention

In keeping with normal rules, suppliers will have to hold evidence to satisfy HMRC that the supply is entitled to zero-rating. This may be in the form of contractual or other documentary evidence. HMRC would also advise suppliers to obtain a declaration from their customers that the vessel is to be designed for use as a permanent residence and intended for such use. We would suggest that suppliers use the format set out for the Undertaking of Use in Notice 744C, adapted as necessary where the supply is one of the vessel itself. Customers should be aware that HMRC have powers to impose penalties where false documentation is used to obtain a tax advantage.

 

Past supplies and claims

Customers who have been previously charged VAT on a supply that is now covered by this policy must approach the person who made the supply to them to obtain a refund of VAT. They should not contact HMRC as we have no legal powers to refund tax direct to customers. Suppliers who wish to claim a refund of VAT charged to customers on a supply covered by this policy must submit their claims in accordance with the published rules and subject to the normal repayment, unjust enrichment and capping criteria to HMRC.

 

Further information

For further information on houseboats please see Public Notice 701/20: VAT Caravans and Houseboats.

 

For further information on qualifying ships please read Public Notice 744C: VAT Ships, aircraft and associated services

 

For additional information on parts and equipment please read Information Sheet 15/07 VAT: Supply of parts and equipment for qualifying ships and aircraft.

 

Or contact our National Advice Service Helpline on Tel 0845 010 9000, or by email, or by writing to:

 

HM Revenue & Customs

National Advice Service

Written Enquiries Section

Alexander House

Victoria Avenue

Southend

Essex

SS99 1BD

 

Issued 8 July 2009

In this section

Accounting Schemes

Appeals

Avoidance

Calculating VAT

Complaints

Deposits

Evasion

Input Tax

International Trade

Intrastat

Invoices

Liability

Output Tax

Partial Exemption

Payment

Penalties

Registration

Returns

 

 

Since Waterways World seem to have managed to print a completely incorrect interpretation of a way to avoid paying VAT on a boat plus it seems or doesn't seem depending on who his giving the lesson that if you have a tug or butty combination built the tug can be supplied VAT free.

 

 

Then do you think that VAT should be payable on residential boats?

 

The subject is complex but to highlight it in simple terms you don't pay VAT on a house, caravan or house boat if it is for residential use the scope to provide VAT relief for boats built for residential use at present under law does not exist but should it?

 

After all when I was involved in a similar "discussion" before a rather high ranking civil servant told me that "only a handful of people live or would consider living on boats" and when I went on to mentioned VAT relief on residential caravans he then went on at length about not upsetting the Gypsy/Traveller community that would "make waves" if they had to pay VAT on new caravans. :lol:

 

Anyway it doesn't make any difference to the boat builders if you pay VAT or don't but is seems the powers that be look down on and don't even acknowledge that anybody lives on the water. :lol:

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Actually no VAT should be charged on a primary residence. Purchasers should sign a declaration that the boat is main residence and land registry search undertaken to ascertain they have no other home.

 

Surely it can only be residential if it has a residential mooring? to licence a boat requires a permanent address

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Saddening to hear of redundancies etc, but why did not anyone else challenge this earlier in mid 2004 when HMRC changed their guidance post DG Everrett in 1994. I am amazed that the companies with a vested interest in these sort of ships did not get together and fund a challenge. They appear to have been quite content with the situation and were quite happy to wait for someone else to do the dirty work and take the risk. The appreciation since winning is remarkably thin on the ground - again indicative of a lack of interest.

 

The residence bit is bit of a red herring. The flaw is that the law only requires a vessel to "not to be designed or adapted for R&P". There is no requirement in law to have the barge as a primary/main residence or any sort of residence, although the residence issue is used as a supporting argument/evidence. HMRCs new brief is still somewhat disingenuous. Vessels are also considered chattels - and CGT does not apply to chattels, although IHT does.

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Saddening to hear of redundancies etc, but why did not anyone else challenge this earlier in mid 2004 when HMRC changed their guidance post DG Everrett in 1994. I am amazed that the companies with a vested interest in these sort of ships did not get together and fund a challenge. They appear to have been quite content with the situation and were quite happy to wait for someone else to do the dirty work and take the risk. The appreciation since winning is remarkably thin on the ground - again indicative of a lack of interest.

 

The residence bit is bit of a red herring. The flaw is that the law only requires a vessel to "not to be designed or adapted for R&P". There is no requirement in law to have the barge as a primary/main residence or any sort of residence, although the residence issue is used as a supporting argument/evidence. HMRCs new brief is still somewhat disingenuous. Vessels are also considered chattels - and CGT does not apply to chattels, although IHT does.

 

 

I don't think many builders were very interested in the subject really, in the beginning when it was all a bit secretive it was a nice marketing tactic to undercut the completion but that was really the only driving force the VAT never being the builders money never really factored in that much.

 

Later the actions of HMRC fell into various scenarios some builders-

 

Got large VAT demands and threats of winding up orders.

 

Others were simply told to stop zero rating.

 

Others were turned a blind eye and carried on zero rating.

 

And all these were going on at the same time depending on who or were you where which was a far from fair situation.

 

I think because of this many builders just tried to sort it out the best they could and kept their heads down.

 

 

In the end I actually got back all the "un paid" VAT they got off me but it cost a lot of money a few years and ultimately the company to do it so it wasn't much of a win really.

Edited by Gary Peacock
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The time limit for VAT refunds has been increased from 3 years under the transitional arrangements below. This would suggest to me that any ‘qualifying ship’ used residentially as outlined in HMRC Brief 38/09 and purchased since the end of the accounting period ending on 30th April 2006 should be able to benefit from retrospective Zero Rating. As I understand it the accounting periods for VAT are usually quarterly and therefore it may be possible to retrospectively Zero Rate a vessel purchased as early as 31/01/06 (i.e. the beginning of the VAT accounting period)

 

 

Paul

 

 

Transitional arrangements for the increase in time limits from three years to four years

The time limit for adjusting returns and correcting errors, including making claims, was increased with effect from 1 April 2009 from three years to four. However, in order to ensure that accounting periods that were out-of-time on 31 March 2009 are not brought back in-time by the change, transitional arrangements have been put in place.

Because of these arrangements, between 1 April 2009 and 31 March 2010 you can't correct an error made in an accounting period ending before 1 April 2006 - either by adjusting your return, or by notifying HMRC separately in writing.

• For instance, on 31 March 2009 the earliest accounting period for which you can make a return adjustment correction or error correction report or claim, whether for an understatement of tax paid or a refund of overdeclared output tax, is the accounting period ending on 31 March 2006 (the old three year rule).

• On 30 April 2009, the earliest accounting period for which you can make such an adjustment or claim would be that ending on 30 April 2006.

• Similarly, on 31 October 2009 the earliest accounting period for which you can make such an adjustment or claim would also be that ending on 30 April 2006.

• However, by 30 April 2010, the four-year time limit will have come fully into effect so that such an adjustment or claim made on that date can still go back to the accounting period ending 30 April 2006.

For non-standard tax periods, you can make adjustments on your return and notify HMRC about errors in writing between 1 April 2009 and 1 April 2010 for any accounting period ending on or after 1 April 2006, subject to this transition from three years to a four year limit.

 

 

 

Since Waterways World seem to have managed to print a completely incorrect interpretation of a way to avoid paying VAT on a boat plus it seems or doesn't seem depending on who his giving the lesson that if you have a tug or butty combination built the tug can be supplied VAT free.

 

 

Then do you think that VAT should be payable on residential boats?

 

The subject is complex but to highlight it in simple terms you don't pay VAT on a house, caravan or house boat if it is for residential use the scope to provide VAT relief for boats built for residential use at present under law does not exist but should it?

 

After all when I was involved in a similar "discussion" before a rather high ranking civil servant told me that "only a handful of people live or would consider living on boats" and when I went on to mentioned VAT relief on residential caravans he then went on at length about not upsetting the Gypsy/Traveller community that would "make waves" if they had to pay VAT on new caravans. :lol:

 

Anyway it doesn't make any difference to the boat builders if you pay VAT or don't but is seems the powers that be look down on and don't even acknowledge that anybody lives on the water. :lol:

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  • 8 years later...

nice to reflect on the good old days though.   Gary Peacock shared all his knowledge of fitting out boats with me, including how to prepare the boat and the documents for the RCD Cat D.   Document templates, structural strength design programmes, etc.    A true gentleman, and I never even met him.

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5 minutes ago, Mick in Bangkok said:

Haven’t lived in UK for many years so would like to clarify would one only need to pay VAT on a new narrow boat or if I were to purchase a second hand vessel as a live aboard would I also need to pay?

VAT is only payable once, so provided the original owner paid it then its ok for ever more

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