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I declare a personal interest in this decision and hence my criticism of the First Tier Tribunal (Tax Chamber) decision at first instance may be a little harsher than usual – but who in their right mind would EVER classify a bra specifically designed to hold a silicon breast form and for use by women following mastectomy or partial mastectomy as an “ordinary” brassiere for the purposes of customs duty on importation? A duty of 6.5%!

What is and isn’t subject to duty is listed and interpreted according to the Combined Nomenclature or “CN”.

HMRC in their infinite wisdom decided that the bra concerned was just and ordinary brassiere under CN 6212. Amoena maintained that it was an orthopaedic device under CN 9021 but that fell on deaf ears when the FTT upheld their decision at first instance. If such bras are exempt from VAT what on earth possessed HMRC and then the FTT to find that they should be subject to duty on importation?

As a wearer of such a “device” I was aghast at the decision. The psychological impact of mastectomy is significant and well recognised, to the extent that for those for whom it is suitable, reconstruction is offered as part of the standard treatment package for breast cancer. For those not suitable for surgery, for those who do not want further surgery and for those preparing for it (like me) breast forms and the bras specifically designed or adapted to hold them provide some relief and afford at least the outward appearance of being “normal”. Its not a perfect solution (I hate mind with a passion) but it does provide some relief from the trauma this surgery causes.

If mastectomy bras (and adaptation of ones existing lingerie) qualifies for the medical exemption under the VAT rules why on earth should they be subject to import duty? They are very different to “normal” bras and generally more expensive – certainly at point of sale and serve a very specific (although these days not so limited) female market.  They fall obviously and squarely within the definition of an orthopaedic appliance in CN 9021 which includes “applicances for preventing or correcting deformities” as well as artificial parts of the body and other appliances which are worn or carried to compensate for defect or disability, by note 2(b) to Chapter 90 of the CN, parts and accessories suitable solely or principally for use with a particular appliance are included within the definition and thereby exempt from duty.

What on earth possessed the Government to seek to make money from a group of women trying their best to put a brave boob (rather than face) on it following the trauma of breast cancer and mastectomy? From the lawyers’ view point, rather than the patient, what on earth possessed them and the FTT to fly in the face of very clear guidance in the CN – it even gives guidance on classification when a “device” might have dual purpose for goodness sake.

This is another example of this Government’s pernicious attack on those with disabilities, those who are in a minority, who are weak and vulnerable. And because the long term effects and consequences of breast cancer (any cancer in fact) go unseen and unspoken – because lets face it we’re kicking cancer’s butt (or not), it is an attack which is likely to go on unknown and unheeded.

Fortunately the Upper Tribunal saw the stupidity of the decision and has over turned it. If after my rant you are interested in the full decision, you can download a pdf here