HMRC expects judgement of its appeal against a court ruling which said waste deposited as ‘fluff’ at landfill sites was not liable for tax “within one to two months”.
HMRC’s appeal relates to a long-running dispute it has with three waste companies: Biffa, Veolia and Devon Waste Management.
HMRC claims that as fluff is made of residual waste it should be taxed as waste. The waste companies argue that as it serves a purpose it should not.
In January 2020, the waste companies were successful in the Upper Tribunal in appealing an earlier verdict which said the material was taxable (see letsrecycle.com story).
HMRC’s appeal against that decision began at a remote hearing at the Court of Appeal on 23 March before Lord Justice Newey, Lady Justice Rose and Lord Justice Nugee (see letsrecycle.com story ). It ended on 26 March.
An HMRC spokesperson told letsrecycle.com today (6 April): “We await the Court of Appeal’s decision.”
If HMRC is successful in its appeal the case could go all the way to the Supreme Court.
‘Fluff’ generally consists of soft black bag waste. It can be deposited at the base of where landfilled waste is buried, as well as up a sloping side or on top of the main body of landfilled waste.
The long-running issue of whether fluff should be taxed dates back to 2008, when HMRC said it would not appeal against a ruling in which a court found in favour of Waste Recycling Group (WRG), later acquired by FCC Environment.
WRG successfully argued that a landfill site operator, who had used various inert materials for building roads and for ‘daily cover’ on a landfill site, did not have the intention of discarding it as they had retained and used the material for their own purposes. HMRC then invited claims for repayment of landfill tax which fell within such examples.
In December 2013, HMRC decided to stop repaying on base and side fluff, but said it would not seek to reclaim what it had already paid.