© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
H10. Power, permission, availability
Available
- Assets available for distribution includes that parent could obtain from subsidiary by exercising control
"[47] Taking into account the decision in Project Blue and the approach to be taken, I do not consider that it is appropriate to interpret "assets which are available to" in the way contended for by the Appellants. The word "available" is, in my view, wide enough to encompass assets which the company controls such that it can, in effect, 'gather in' those assets as it chooses.
[48] In this case, I agree with HMRC's contentions regarding the interaction of the Articles of Association of WMF and the Duomatic principle: the distributable reserves of WMF were amounts which were available to WMGH at the time of the transaction. The fact that WMGH would have had to resolve, as sole shareholder of WMF, that a dividend to be paid to it and also resolve to waive the restriction in regulation 102 does not mean that these were not assets available to it. Those actions were entirely within WMGH's control without a third party's involvement and so, in my view, the distributable reserves of WMF were amounts available to WMGH for distribution by way of dividend." (Oscroft v. HMRC [2026] UKFTT 251 (TC), Judge Fairpo)
- Asset can be available for use (and intended to be available for use) even if no present intention to use it
"[28] The first issue is, therefore what the draftsman meant by 'make available for use'. That is an ordinary English expression, deliberately different from 'use' itself. An object can be available for use without there being any present intention of actually using it just as, for instance, a person can be available for, say, military service without there being any intention that he should serve or be asked to serve." (Upton v. CCE [2002] EWCA Civ 520, Buxton LJ)
- Asset made available for particular use if supplied with no physical or legal restraint as to that use
"[41] If an article is supplied by one person to another with no physical or legal restraint as to a particular use, then it appears to me that, as a matter of ordinary language, the article has been “made available” for that use. The fact that neither the supplier nor the recipient expects, or even intends, the article to be put to the particular use does not prevent the article being “available” for that use, if there is no physical or legal restraint on such use by the recipient. Further, it cannot be said, at any rate as a matter of ordinary language, that the supplier does not “make” the article available for that use, simply because he does not expect or intend it to be put to that use. If he supplies the article so that it is, as a matter of fact, available for a particular use, then he has, in normal parlance, made it available for that use..." (Upton v. CCE [2002] EWCA Civ 520, Neuberger J)
- Contractual exclusion gives powerful argument not available for such use
"[41] ... On the other hand, if the supplier provides the article under a contract which bona fide precludes the recipient from putting it to a particular use, or if it is supplied only at such times that it cannot be put to a particular use, then there is clearly a powerful argument for saying that it has not been “made available” for such use." (Upton v. CCE [2002] EWCA Civ 520, Neuberger J)
- Asset "made" available to owner by obtaining ownership and control (unless positive step taken to exclude)
"[30] Further, I see no escape from the conclusion that Mr Upton had made the car available to himself. He did that, tautologically enough, by providing himself with ownership and control of the car. And, as we have seen, the availability that was created was availability for private as well as for business use." (Upton v. CCE [2002] EWCA Civ 520, Buxton LJ)
Unless positive step taken to exclude availability
"[34] ... It therefore followed that if, at the time of purchase, the owner’s intentions did not include the taking of any steps to exclude what the Vice-Chancellor, [2001] STC at p918f, called the necessary consequence of his ownership, then that necessary consequence indeed followed: that the car was available for his use . I do not think that this analysis involved the writing into the Regulation of any requirement that is not there to be found, nor did it apply a different test in the case of the man who makes the car available to himself, as compared with the man who makes the car available to a third party. Rather, it simply recognises the particular factual implications for the Regulation of a purchase of a car that is to be available to, and used by, the purchaser himself." (Upton v. CCE [2002] EWCA Civ 520, Buxton LJ)
Odd concept: owner making his own property available to himself
"[40] Ignoring, for the moment, the unusual concept of a person making his own property available to himself, what does the provision mean when it refers to an intention to make a motor car available to a person other than the taxpayer for private use?..." (Upton v. CCE [2002] EWCA Civ 520, Neuberger J)
- Asset still available to T even if T gives custody to another, if T could compel its return
"[48]...It was suggested on behalf of the Commissioners during argument that, if a sole trader acquired a motor car for the sole use of employees in his business, and arranged for the motor car to be housed some distance away from his home, and for the keys to be kept by an employee, with a view to its only being used for business purposes, the motor car would not thereby be made available for private use. I find that difficult to accept. The person in control of the motor car and of the keys would be an employee of the trader, and could be compelled to provide him with the motor car and the keys for whatever purpose the trader chose..."(Upton v. CCE [2002] EWCA Civ 520, Neuberger J - see §49 on situation where T hires to another)
- Legal impediment, e.g. not insured for use, may mean not available for that use
"[49]...However, as mentioned, I think it is also possible that a legal impediment to private use, so that such use would be unlawful, might also amount to unavailability for private use. An obvious example would be where a motor car was only insured for business use. However, it is unnecessary to decide whether that would be sufficient to enable a sole trader taxpayer to avoid the effect of paragraph 7(2G)(b). Even if only physical unavailability will do, I do not think the fact that the Vice-Chancellor’s decision would lead to it being difficult for a sole trader to be able to take advantage of paragraph 7(2E) justifies a different conclusion from that which he reached." (Upton v. CCE [2002] EWCA Civ 520, Neuberger J)
- Condition targeting private use of car equally satisfied by legal or physical restriction on use
"[37]...It is relevant to answering that question to consider to what extent the narrow meaning which Mr Paines proposes is required by the purpose of the relevant provisions as identified above. In my judgment, while, if "available" meant only "physically available", there would undoubtedly be fewer cases where VAT paid on the purchase of a car could be deducted, that itself is not the object of the provision. The object is to prevent claims to deduct tax on cars purchased for business save where the possibility of private use is excluded. That purpose can equally well be achieved if the concept of availability is not restricted to physical availability but includes also cases of unavailability due to the imposition of effective legal restraints." (CEC v. Elm Milk Limited [2006] EWCA Civ 164, Arden LJ)
- Asset made available to third party requires some step by owner to make it so available
"[33]...He however recognised that the implications of the very act of acquiring the car will be different, according to whether it is said thereby to be made available to another person, on the one hand; or to the taxpayer himself. The Vice-Chancellor therefore said, [2001] STC at p 918e:
“In the case of a private use by a third party a car which is intrinsically capable of private use will not be available for that use unless the taxable person as its owner takes some steps to make it so. But in the case of private use by the taxable person the consequence of his acquisition of the car will be to make it available for his private use unless he take positive steps to remove it”
[34] That distinction is, with great respect, entirely correct as a matter of the factual implications of a mere purchase of a vehicle. It therefore followed that if, at the time of purchase, the owner’s intentions did not include the taking of any steps to exclude what the Vice-Chancellor, [2001] STC at p918f, called the necessary consequence of his ownership, then that necessary consequence indeed followed: that the car was available for his use." (Upton v. CCE [2002] EWCA Civ 520, Buxton LJ)
- Third party would require permission from person who would not give permission meaning not available (even though insured to drive car)
"[46]...Moreover the other two named drivers could not have got access to the keys of the car without Mr Phillips' permission and since the tribunal were satisfied that he regarded himself as bound by the board resolution I do not consider that the fact that there were two additional named drivers about whom inquiries were not pursued would affect the tribunal's conclusion. Accordingly I would dismiss this ground of appeal also." (CEC v. Elm Milk Limited [2006] EWCA Civ 164, Arden LJ)
Making a person available
- Answered in a "real and practical sense"
[77] The simple questions for the FTT were whether, as a matter of ordinary language, and in a real and practical sense, the effect of the scheme "made available" the personal services of the employees to the appellant and whether those services were then "rendered" for the purposes of the appellant's business. In answering those questions, the FTT was required to regard the scheme as a whole and as it was intended to operate. That was all that the FTT was required to do." (Bilfinger Salamis UK Limited v. HMRC [2026] UKUT 143 (TCC), Judges Aleksander and Andrew Scott)
- Does not require control
"[66] Understood in their ordinary, everyday meaning, those words do not, despite the submissions made by Mr Simpson, carry any connotation of "direction" in the manner submitted by him. Mr Simpson submitted that, if something is made available to someone to use, that "necessarily involves that that someone has power to decide how to use it (and indeed whether to use it at all)". However, that seems to us to be nothing more than an assertion of the intended result of the appeal rather than an exposition of the ordinary meaning of the expression "made available". As Mr Tolley noted in his oral submissions, it is perfectly normal English usage to talk of making something available to a person subject to particular terms or conditions. Nor can the requirement for some kind of direction be gleaned from the use of "rendered" in para. 9 of Sch. 3 to the 1978 regulations. The mere fact that the personal service is "made available" is not enough: the service also has actually to be "rendered" for the purposes of the business of the person to whom the personal service is being made available. That seems to us to be the self-evident purpose of that part of the host employer provision.
...
[73] It is question of law for us to determine the meaning of the expressions "made available" and "rendered for the purposes of the business" in the host employer provision. In deciding that question, we need to determine whether those words are used in an unusual sense. In our view, there is nothing in the context suggesting that they are. Rather, they are common, everyday words and should be given their ordinary meaning. There is nothing in the ordinary meaning of those words that implies that the host employer must have some level of direction in relation to the rendering of the personal service. The presence or absence of direction in the host employer may be relevant as a factor to be considered in determining whether or not the "personal service" of a person is "made available" to another but it is not part of the statutory test." (Bilfinger Salamis UK Limited v. HMRC [2026] UKUT 143 (TCC), Judges Aleksander and Andrew Scott)
- Giving permission for something which could not otherwise be done lawfully or not taking steps to prevent
"[114] [The taxpayer] contended that had it been intended to subject purchasers to higher-rate SDLT and ATED simply if "a non-qualifying individual will be occupying a dwelling on the land", paragraph 5(2) would have said so. The permission element must indicate that it is being given by a party who is in a position to meaningfully give it through their real control of who may use the property. That contention is supported by established case law. We agree with Mr Sykes' submissions.
[115] In Tophams Ltd v Sefton (Earl) [1967] 1 A.C. 50 at 68, Lord Guest said:
"Apart altogether from authority I would think that outside the sphere of purely polite social language, the word "permit", used even between laymen bent on serious business or other affairs intended to have legal consequences, would be used as a word connoting on the part of the one whose permission is asked the right effectively to refuse and on the part of the applicant the necessity to ask for and obtain permission, so as lawfully to undertake his proposed course of action. This, in my view, is its legal meaning."
[116] The meaning of the "permit" was considered by Atkin LJ in Berton and Others v Alliance Economic Investment Company [1922] 1 K.B. 742. He said at [755]:
"Now the words 'permitting and suffering' do not bear the same meaning as 'knowing of and being privy to'; the meaning of them is that the defendant should not concur in any act over which he had a control."
[117] And at [759]:
"To my mind the word 'permit' means one of two things, either to give leave for an act which without that leave could not be legally done, or to abstain from taking reasonable steps to prevent the act where it is within a man's power to prevent it."
[118] We find that the Option did not grant IST any possession over the Property and did not give it the ability to influence or decide whether or not Ms Voice occupied the Property. The evidence on this point was clear and we accept it: it is and has always been IST's position (confirmed in correspondence and witness evidence) that Ms Voice occupied the Property as of right in her capacity as freeholder.
[119] HMRC alternatively contended in their Statement of Case at paragraph 129: "that, by voluntarily entering into an agreement which allowed, or did not prevent, the occupation, [Ms Voice] was permitted to occupy the Property". We can deal with this point in short order. We cannot find any support for such an interpretation of "permitted" in the established case law." (Investment And Securities Trust Limited v. HMRC [2024] UKFTT 230 (TC), Judge Williams)
Permit