Supreme Court

Amoena (UK) Ltd v Revenue and Customs Commissioners

[2016] UKSC 41; [2016] WLR (D) 386

2016 June 7; July 13

Baroness Hale of Richmond DPSC, Lord Sumption , Lord Reed , Lord Carnwath and Lord Hodge JJSC

Revenue — Customs and Excise — Exemption from duty — Mastectomy bra — Clothing liable to duty — Medical apparatus compensating for a deformity and accessories thereof exempt from duty — Whether mastectomy bra accessory to medical apparatus — Whether exempt from duty — Council Regulation (EEC) No 2658/87, Annex 1 (as amended by Commission Regulation (EU) No 927/2012, Annex 1)

Facts

The taxpayer imported mastectomy bras which were designed to be worn with an artificial breast form by women who had undergone surgical removal of one or both breasts. The revenue determined, for the purpose of the EU Combined Nomenclature as annexed to Council Regulation (EEC) No 2658/87 and updated by Commission Regulation (EU) No 927/2012 (“the CN”), that the mastectomy bra was a brassière and thus an article of clothing under chapter 62 of the CN and liable to customs duty at 6.5%. The taxpayer appealed the decision, contending that the mastectomy bra was properly classified as an orthopaedic or other appliance which was worn to compensate for a defect or disability, or part or accessory thereof, under heading 9021 of chapter 90 of the CN, which carried no duty. The First-tier Tribunal upheld the revenue’s classification. That decision was reversed by the Upper Tribunal. The Court of Appeal restored the revenue’s classification.

On the taxpayer’s appeal—

*Held

Held, appeal allowed. While the item which compensated for the deformity of a woman who had undergone a mastectomy was the breast form rather than the mastectomy bra, by holding the breast form in place, the bra enabled the breast form to perform its function. Consequently, the bra performed a particular service relative to the main function of the breast form. It followed that the mastectomy bra was an accessory to a medical appliance under heading 9021 of chapter 90 of the CN and was, therefore, exempt from customs duty (post, paras 27–28, 43, 45–46).

Cases considered

Turbon International GmbH v Oberfinanzdirektion Koblenz (Case C-276/00) [2002] ECR I-1389, ECJ, Turbon International GmbH v Oberfinanzdirektion Koblenz (No 2) (Case C-250/05) [2006] ECR I-10531, ECJ and Unomedical A/S v Skatteministeriet (Case C‑152/10) [2011] ECR I-5433, ECJ considered.

Appearances

Tim Eicke QC and Edward Brown (instructed by Clarkson Wright & Jakes Ltd, Orpington) for the taxpayer.

Sarabjit Singh (instructed by Solicitor, Revenue and Customs) for the revenue.

Reported by: Ms B L Scully, Barrister.

© 2016. The Incorporated Council of Law Reporting for England and Wales.