In Nuttal and Anor v HMRC [2026] UKFTT 674 (TC) the First-tier Tribunal (Tax Chamber) (“FTT”) considered: (i) the meaning of “disposed of” and “disposal” in the context of s40(2) Finance Act 1996 and (ii) whether “intention” was a relevant consideration.

The Facts

In 2010 North Killingholme Storage Limited (“NKSL”) entered a lease at a site with an obligation to yield up with vacant possession at the end of the lease. It was also granted a waste management licence by the Environment Agency in 2004. A company, SRF, approached NKSL to store Refuse Derived Fuel (“RDF”) at the site pending export for use in combined heat and power plants. In 2012 the waste management licence was transferred to an associated company, North Killingholme Recycling Limited (“NKRL”). RDF was brought to the site over a number of months but it was not being removed sufficiently quickly in the opinion of the director of NKSL. He convened several meetings and received assurances that the RDF would be removed. The Environment Agency commenced an investigation and a meeting was held with SRF, the Environment Agency and the taxpayers to discuss removing the RDF.

SRF became insolvent in 2015 but failed to remove the RDF from the site. Consequently, attempts were made by NKSL to secure removal of the RDF from the site. In 2017 NKRL (which had been transferred the waste management licence) became insolvent because SRF had not paid it for the storage. This meant that there was no waste management licence in place to store the RDF which was complicated by the fact that the taxpayers did not have legal title to the RDF.

Ultimately the RDF was removed in 2024/2025 after a period of investigation by the taxpayers as to how the RDF could be removed, the intervention of the pandemic, and the director’s serious ill health. Whilst the RDF had remained on the land the taxpayers had made serious efforts to maintain the RDF in good order including re-baling it, pest control and construction of a clay bund.

The Issue and Decision

The Revenue argued that there had been a “disposal” at the time of the dissolution of NKRL because the waste management licence was revoked. They said the effect of the revocation was that a disposal had taken place making NKSL (which operated the site where the RDF was stored) liable to the charge to tax. The Revenue argued that “intention” for disposal was irrelevant following legislative change in 2018 which removed the previous requirement that there must be an intention to dispose.

The Tribunal disagreed.

Whilst it accepted the Revenue’s argument that for there to be a disposal it is no longer necessary that the person making the disposal does so with the intention of discarding the material, it nonetheless

accepted the taxpayer’s argument that intention could still be a relevant consideration in a “multi-factorial assessment of the facts to determine whether there has been a disposal”.

The FTT considered that another factor which “can be highly relevant” is the physical placement of property on land. However, in cases where there was no physical placement of material on land, the FTT considered the correct approach must be to look at the facts in the round, considering the rights, responsibilities and other relationships that the person said to be making the disposal has to the relevant material, in addition to the rights, responsibilities and other relationships of third parties with the relevant material (see paragraph 79). Having considered those matters it was right to stand back and ask if the conduct of the person said to make the disposal gives rise to a “disposal”, giving that word its ordinary and natural meaning in the context of the legislation.

The FTT was clear that the above assessment can be informed by the intention of both the party being said to make the disposal and relevant third parties. It also considered that subsequent events may be relevant insofar as they shed light on the facts (including the intentions of the relevant parties) at the date of the disposal.

Having found that intention was a relevant consideration (albeit not determinative) it then went on to consider the position without having regard to intention in case it was wrong.

It found: (i) legal ownership of the RDF passed to bona vacantia upon dissolution of SRF, (ii) the RDF, until dissolution, had been kept legally on the site, (iii) NKRL had an obligation to minimise the risk of pollution, (iv) after NKRL’s dissolution the licence was revoked resulting in the RDF being kept unlawfully on the site, (v) NKRL was not dissolved to escape regulatory obligations but was a consequence of non-payment by SRF, (vi) the RDF was on a site leased to NKSL (not NKRL), (vii) it was not the intention of any taxpayer that the RDF should be retained permanently on the site as it was only brought to the site for storage and for which SRF was responsible for removal, (viii) serious efforts had been made to remove the RDF from the site by the taxpayers, (ix) there was an economic incentive to remove the RDF from the site because its storage at the site was not being paid for and the land could not be put to another purpose, (x) the RDF was securely maintained on the site so that it was not an environmental hazard including re-baling and controlling rodents, (xi) the taxpayers arranged for removal which was paid for by an associated company, and (xii) the taxpayers were not suggested to be “rogue operators”.

The FTT allowed the appeal in full. The decision can be accessed Nuttall & Anor v Revenue and Customs (LANDFILL TAX - disposal) [2026] UKFTT 674 (TC) (06 May 2026).

Joshua Carey was instructed by the formidable team at Stewarts Law LLP including David Pickstone and Anastasia Nourescu.