Not a special investment fund

The taxpayer business operated a multi-employer pension scheme on behalf of the Ford Motor Company.

Capital International provided fund management services to the taxpayer and accounted for VAT on the supplies on the basis the taxpayer did not qualify for exemption under VATA 1994 Sch 9 group 5.

Following the European court of justice (ECJ) decision in JP Morgan Fleming Claverhouse Investment Trust plc v HMRC (C-363/05) [2008] STC 1180 Capital submitted a repayment claim on the ground its supplies qualified for exemption under EC law.

HMRC rejected the claim. The taxpayer appealed saying it qualified as “special investment funds” within article 135(1)(g) of EC Directive 2006/112/EC.

The First-tier Tribunal referred the case to the ECJ for a ruling as to whether the reference to “special investment fund” in article 135(1)(g) was “capable of including an occupational pension scheme established by an employer that is intended to...