Constable VAT Focus 11 March 2021


Pay back VAT deferred due to Coronavirus
Find out how to pay VAT payments deferred between 20 March and 30 June 2020. HMRC has updated its guidance – if your business is on the VAT Annual Accounting Scheme, or the VAT Payment on Account Scheme, you can join the scheme from 10 March 2021.The VAT deferral new payment scheme is open up to and including 21 June 2021.

VAT on sales of digital services in the EU
HMRC has updated its guidance to include links to guidance which is cited.

VAT EU exit transitional provisions
HMRC has added guidance to the Financial Services section of this guidance which now includes a link to the new detailed Transitional guidance for VAT specified supplies.

Completing VAT Return: Accounting for import VAT
Information about February entries on your January statement has been added.

Hotels and Holiday Accommodation (VAT Notice 709/3)
Information has been added about the extension to the temporary reduced rate for certain supplies of accommodation.

Catering, takeaway food (VAT Notice 709/1)
Information has been added about the extension to the temporary reduced rate for certain supplies.


Rishi Sunak has delivered the first budget since the end of the Brexit transition period. Prior to the budget, there was a significant amount of discussion around whether UK VAT rates would change to help assist the recovery of the UK economy following the coronavirus pandemic. Following the announcement of the Budget on 3 March 2021, we have released a special Budget Focus which offers our commentary on the VAT elements of the Budget. Our coverage can be read in full here.


Court of Justice of European Union

1. VAT Adjustments: Part or total non-payment

This case concerned a dispute between a Hungarian company, FGFZ, and the Hungarian tax authority. The latter refused to grant FGZF a right to make an output VAT reduction adjustment in relation to supplies for which it was not paid and where the customer had become insolvent.

Between October 2010 and January 2011, FGSZ sent EMFESZ Kft., a partner company, several invoices including VAT. During 2011, FGSZ declared and paid the VAT on those invoices to the tax authority. Before those invoices were paid, the debtor company was subject to winding up proceedings. On 13 December 2019, the liquidator of EMFESZ confirmed that the debt would not be paid. On 19 December 2019, FGSZ filed an application for the recovery of the VAT in respect of those invoices.

EU law provides that in the case of cancellation, refusal or total or partial non-payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly for the purpose of VAT accounting. However, Article 185 of the PVD states that “…no adjustment shall be made in the case of transactions remaining totally or partially unpaid or in the case of destruction, loss or theft of property…”. Despite this, it continues to give Member States the permission to require an adjustment to be made in the event of partial or non-payment.

The Hungarian tax authority refused to permit the adjustment on the grounds that such an adjustment would constitute “budgetary aid”. Under Hungarian law, taxpayers have a five-year time limit to apply for budgetary aid. This position was upheld by the first tier Hungarian Court and FGZV brought an appeal to a higher court on the grounds that, following EU caselaw such as Volkswagen and Biosafe, the time-limit should begin to run, not from the date on which the payment obligation originally provided for was to be fulfilled, but from the date on which the debt became irrecoverable. This matter was referred to the CJEU.

Considering the previous caselaw around this point in addition to the EU principles of legal certainty, fiscal neutrality and equivalence, the CJEU found that where a Member State lays down a limitation period after which a taxable person, who has a debt which has become definitively irrecoverable, can no longer assert his right to obtain a reduction in the taxable amount, that limitation period must begin to run not from the date of performance of the payment obligation initially provided for, but from the date on which the debt became definitively irrecoverable.

Constable Comment: This case confirms for taxpayers within the EU that if they receive part or total non-payment for a supply for which all of the output VAT has been accounted and that debt becomes formally irrecoverable, they will be able to adjust their output VAT position retrospectively, provided that such an adjustment is made in line with the time limit set by the relevant member state. This judgment confirms that the time limit begins to run once the debt is formally irrecoverable and not from the date of the tax point. Different states have the discretion to set different time limits so taxpayers should consider, carefully, the rules in any countries in which they may have a right to adjust.

Upper Tier Tribunal

2. Westow Cricket Club: Reasonable Excuse

Westow Cricket Club (WCC) appealed a decision of the FTT, which upheld an HMRC penalty imposed on it for incorrectly issuing a zero-rating certificate to a contractor in relation to the construction of a new cricket pavilion. At the time the certificate was issued, WCC was a community amateur sports club (CASC) but was not a charity. HMRC imposed a penalty on the basis that the certificate was issued incorrectly as WCC was not registered charity. The penalty was assessed in the amount of £20,937.

The Club raised funds to build a pavilion and sports hall adjacent to the cricket ground. Prior to any building work starting, on 22 March 2012, the Club wrote to HMRC giving details about the Club and the building project and seeking guidance on the zero rating of supplies to be made to the Club in the course of the construction of the pavilion and sports hall. HMRC’s response was not definitive and referred the Club to HMRC’s notice but was read by the Club as indicating that zero-rating was appropriate, and a certificate was issued to the contractors undertaking the work.

HMRC ruled that the certificate had been issued incorrectly and imposed a penalty but WCC appealed to the FTT on the grounds that it had a reasonable excuse for issuing the zero-rating certificate – it had relied on advice from HMRC, though later WCC accepted that it should not have issued the certificate. The FTT concluded that there was not a reasonable excuse on two grounds:

  • HMRC’s letter stated that it was not definitive advice and pointed the Club to consider further information.
  • The zero-rating certificate is explicit and asks for confirmation that the building will be used “solely for…a relevant charitable purpose, namely by a charity”. The requirement is expressly set out and there is no other objectively reasonable interpretation that might be applied. The Club is not a charity.

Considering that the FTT had failed to sufficiently consider what constitutes a reasonable excuse in this circumstance, the UT proceeded to remake the decision. It concluded that it was reasonable for a taxpayer in WCC’s position, run by a group of volunteers with little expertise on matters of indirect taxation, to rely on what was said in HMRC’s letter as constituting reliable advice. HMRC’s letter did not raise the issue of CASC/charitable status but commented that the pavilion appeared to meet the criteria for “village hall or similar”. This gave the impression, to an untrained eye, that HMRC was stating that the pavilion appeared to meet the criteria for zero-rating.

Therefore, the UT found that, in the circumstances, WCC had a reasonable excuse for issuing the zero-rating certificate as it had contacted HMRC for assistance and read the guidance to which HMRC directed it. It was reasonable, for charitable volunteers without any experience in indirect tax, to rely on what HMRC said, despite HMRC’s caveat that its advice was not reliable.

Constable Comment: This is an interesting decision as, it appears from the judgment, HMRC’s response to WCC’s enquiries explicitly stated that it was not reliable and drew its attention to public guidance to assist it in making a decision. However, the UT considered the roles and abilities of the volunteers running the charity and its conclusion that WCC had a reasonable excuse for its error indicates that the UT expects HMRC to adjust its conduct when dealing with different taxpayers.

3. Lilias Graham Trust: Exempt or Taxable?

This appeal by The Lilias Graham Trust (LGT) concerned whether its supplies are VAT exempt by virtue of their close association with a supply of welfare for children. LGT is a charity which operates a residential assessment centre where it assesses the parenting capabilities of those referred to it by a Local Authority (LA) in exchange for a fee which is charged to the referring LA. The FTT previously held that such supplies are VAT exempt as they relate directly to supplies of welfare for children. Whilst accepting that part of its service is VAT exempt LGT argued that the supply of accommodation or catering is specifically excluded from VAT exemption.

LGT’s appeal to the UT was on the grounds that the FTT was wrong to conclude that the supplies of accommodation are ancillary to a supply of welfare.  LGT had incurred a large amount of VAT on costs relating to these supplies and in seeking to agree that they were taxable hoped to secure a right to VAT recovery in relation to these supplies to LA’s. The UK legislation states that the VAT exemption for welfare does not apply to accommodation or catering “… except where it is ancillary to the provision of care, treatment or instruction.”

LGT argued that it was not necessary to consider whether there was a single, mixed or composite supply for the purposes of the exclusion from VAT exemption. The point being that there was no doubt that LGT was supplying accommodation and catering and that the finding that such supplies formed part of a larger supply did not preclude the different elements of that composite supply attracting different rates of VAT. This argument has previously been successful in the CJEU, albeit in different circumstances.

HMRC suggested that the FTT was correct to conclude that there is a single supply made by LGT to the LAs which should be correctly regarded as VAT exempt as a supply of welfare services. In that light, there is no need to consider the exclusion from exemption for supplies of accommodation and catering as there is no supply of these services; there is a single supply of welfare services.

Considering the nature of single, multiple and composite supplies, the Tribunal concluded that the purpose of the exclusion from exemption is to prevent supplies of accommodation being treated as VAT exempt when, in reality, those supplies are part of a main taxable supply being made. In the present case, the Upper Tribunal held that the FTT was correct to consider that the supplies of accommodation and catering are ancillary to the supply of welfare services as the entire purpose of LGT’s services was to ensure the welfare of children and their parents, which included providing accommodation and food.

Constable Comment: The argument mounted by LGT is complex and revolves around European caselaw. Readers who have a particular interest in the composite/multiple/single supply issue may wish to read the judgment in detail alongside key cases such as Card Protection Programme and French Undertakers. Ultimately, the Tribunal found that LGT was supplying welfare services to local authorities, supplies of associated accommodation were ancillary and facilitative to these VAT exempt welfare services. It is unusual in a case of this type to see the taxpayer arguing for the addition of VAT, but in this instance there was a large amount of VAT on costs relating to the provision of the service that could be recovered by LGT if the supply were taxable and it is likely that the LA would have been able to recover any VAT charged to it.

Please note that this blog post is intended to provide a general overview of the subject. No liability is accepted for the opinions it contains or for any errors or omissions. Constable VAT cannot accept responsibility for loss incurred by any person, company or entity as a result of acting, or failing to act, on any material in this blog post. Specialist VAT advice should always be sought in relation to your particular circumstance.