Constable VAT Focus 13 January 2023


Revenue and Customs Brief 1(2023): Changes in processing option to tax forms
HMRC has recently released the above brief to confirm that from 1 February 2023, HMRC will stop issuing option to tax notification receipt letters. An automated response will be sent confirming the date when the notification was received. This should be kept by taxpayers for their records for at least 6 years.

HMRC will also no longer confirm the existence of an option to tax as it is the taxpayer’s responsibility to keep such information as part of business records. However, HMRC will respond if a request is made under the following conditions:

  • The effective opted date is likely to be over 6 years ago
  • If you have been appointed as a Land and Property Act receiver, or an insolvency practitioner to administer the property in question

VAT penalties and interest
For VAT accounting periods starting on or after 1 January 2023 there are new penalties for VAT returns that are submitted late and VAT liabilities which are paid late. The way interest is charged has also changed.

Penalty points and penalties if you submit your VAT Return late
From 1 January 2023, the VAT default surcharge has been replaced by new penalties for returns that are submitted late and VAT which is paid late. The newly published guidance above sets out the rules of the new penalty points.

There are also new rules on how late payment penalties work if you pay a VAT return liability late. HMRC issued a brand new guidance to help taxpayers find out how to avoid penalties and get help to pay in instalments. This guidance can be found here.

HMRC have also issued a new guidance on how to remove penalty points you have received after submitting your VAT return late to avoid further penalties. This guidance can be found here.

Late payment interest if you do not pay VAT or penalties on time
For VAT accounting periods starting on or after 1 January 2023, you’ll be charged late payment interest on overdue payments. This is one of several penalty and interest changes that replace the existing VAT default surcharge. The above guidance provides further details on the new late payment interest.

Repayment interest on VAT credits or overpayments
HMRC has recently published this new guidance which can be used to check when you’re eligible for repayment interest if HMRC are late in settling a repayment claim from a VAT return or VAT you’ve overpaid.



1. Reasonable excuse: COVID 19 cashflow issues

This case concerns Bicester Property Interiors Limited (BPIL)’s appeal against HMRC’s decision to issue default surcharges for the VAT periods of 04/20, 01/21 and 04/21. It was not disputed that BPIL fell into default in a number of VAT periods, however BPIL took the view it had a reasonable excuse and therefore penalties should not be applied.

BPIL is an interior renovation company that fits kitchens and bathrooms and carries out other interior renovation work. The company began trading in August 2019. BPIL faced some cash flow difficulties due to the COVID 19 pandemic, specifically as a result of staff and customers having to isolate, which caused significant delays in the work being complete and therefore delays in getting paid. This led to lack of funds to meet its VAT obligations.

BPIL argued that the lack of available funds was directly linked to the effect COVID-19 had on the business and was the overriding reason for the defaults.  BPIL had never tried to avoid its VAT obligations. VAT was paid to HMRC as soon as funds were available. COVID-19 was a rare event and outside of the control of the business. It could not be predicted when a customer or staff member would need to isolate.  In some circumstances BPIL had chosen to pay staff rather than HMRC, but this was a choice forced upon it. BPIL had paid VAT as quickly as it possibly could, and in full.

HMRC did not accept that BPIL had demonstrated a causal link between the delays caused by COVID-19 and the failure to make payments on time. HMRC also noted that insufficiency of funds is specifically excluded from reasonable excuse unless it is rare and outside the taxpayer’s control. As BPIL admitted that it decided to pay HMRC late in order to pay staff and suppliers first, it did not accept that BPIL had insufficient funds. HMRC also noted that if BPIL opted to use cash accounting instead, it could have mitigated the risks, but it did not choose to do so.

The FTT applied the four step approach established in Perrin to conclude that COVID-19 did indeed impact the business as asserted on behalf of BPIL. The difficulties encountered as a result of the COVID-19 pandemic were particularly pronounced for a business such as that carried on by BPIL, which relied on staff being present in private homes for extended periods to carry out their work. The evidence presented to the FTT indicated that the cash flow pressures were considerable and brought about by factors outside BPIL’s control.  The FTT found that the course of action pursued by BPIL was a reasonable one for it to take in the circumstances in which it found itself and as VAT was paid as soon as cash flow allowed, it was concluded that BPIL had a reasonable excuse, and the appeal was allowed.

Constable Comment: This is an interesting case as it demonstrates that where considerable cash flow issues arose as a result of COVID 19, the FTT may accept that the taxpayer had a reasonable excuse with regards to defaults in late payment of VAT. However, it is important to note that each case will have its own circumstances. In this case the taxpayer had a very good file of evidence containing correspondence with customers and staff which demonstrated significant delays in work due to isolations which was completely outside the control of BPIL. VAT payments were made as soon as cashflow allowed without unreasonable delays.

It is also important to note that from the 1 January 2023, the default surcharge regime has been replaced by the point based penalty system. For further information, refer to the HMRC News section of this VAT Focus.

2. Discount offered but not taken up

This case considered TalkTalk Telecom Limited (TalkTalk)’s appeal against HMRC’s assessments in the sum of £10,606,226 to recover VAT underpaid during a four month period between 1 January and 30 April 2014. During this period TalkTalk offered a ‘Speedy Payment Discount’ (SPD) which was a 15% discount on its services if their monthly bills were paid within 24 hours. TalkTalk accounted for VAT on the basis that consideration received was reduced by the discount whether or not the customer paid within the 24 hours.

TalkTalk considered its approach to be consistent with VATA 1994 Sch 6 Para 4(1) which at the time read: “Where goods or services are supplied for a consideration in money and on terms allowing a discount for prompt payment, the consideration shall be taken as reduced by the discount, whether or not payment is made in accordance with those terms.”

HMRC decided that the SPD offer only reduced the consideration for VAT purposes where customers had actually paid the reduced amount, and that there was no reduction when the discount was not taken up, then subsequently raised the assessments.

The First issue in the appeal was whether para 4(1) had the meaning contended by TalkTalk. The Tribunal ruled that TalkTalk was correct as the legislation was clear and, although not determinative, it was supported by HMRC guidance. It upheld that the meaning of para 4(1) was as TalkTalk understood.

The second issue was whether para 4(1) applied to TalkTalk and therefore it correctly accounted for VAT on the reduced amount. It was established by the Tribunal that in order for para 4(1) to apply, the following conditions must be met:

  • there has to be a supply of services;
  • that supply has to be for consideration in money;
  • there must be terms on which the supply is made;
  • those terms must allow a discount;
  • the discount must be for prompt payment; and
  • the terms must not include any provision for payment by instalments.

Whilst conditions 1-4 seemed to have been met, condition 5 and 6 required further consideration. HMRC argued that the position was different between services billed in advance and arrears and were therefore considered separately.

With regards to services billed in advance, the FTT upheld HMRC’s argument and agreed that the SPD was an offer by TalkTalk to vary the T&C on a month by month basis. The contractual variation happened at exactly the same moment as the supply and the payment, and thus there were no terms “allowing a discount for prompt payment” on a future date.  The contractual variation therefore did not include an offer for the customer to pay a discounted amount at some point in the future, so Para 4(1) did not apply to services billed in advance.

In relation to services billed in arrears, customers accepted the SPD offer after delivery of the services. The supply had therefore been made on the terms set out in the T&C, and the customer was therefore contractually required to pay the full amount.  The SPD option was an offer by TalkTalk to accept a lower sum with an earlier payment date to discharge that pre-existing contractual obligation. As a matter of VAT law, this was an offer to accept a post-supply rebate of consideration already due; it was not a discount in the context TalkTalk argued.

As a result, the FTT concluded that the SPD was not a discount for prompt payment, so para 4(1) cannot apply. This means TalkTalk should have accounted for VAT on the full amount as opposed to the reduced, and therefore the assessment was upheld, the appeal was dismissed.

Constable Comment: This case considered whether the consideration for VAT purposes can be reduced by a prompt payment discount offered, even if that discount was not taken up. Whilst this was possible at the time, the terms and conditions should highlight that the discount is offered for prompt payment which was not the case for TalkTalk therefore the appeal was dismissed.

It is also important to note that the rules have changed from 1 May 2014. The tax value is now calculated by reference to the amount paid. Suppliers must account for VAT on the amount actually received for the supply. It is important that taxpayers can no longer account for VAT on the reduced consideration if the customer does not take up the discount.

Please note that this newsletter 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.