Group and Divisional registration (VAT notice 700/2)
Section 7.5 of the above guidance has been updated to clarify the position regarding the anti-avoidance provisions relating to intra-group charges on supplies of services. In addition, information relating to exempt financial or insurance supplies to customers outside the UK or the EU made by businesses in Northern Ireland has been removed from section 2.5.
1. VAT Treatment of digital publications
The Supreme Court has delivered its judgment in the case of News Corp UK & Ireland Ltd on the VAT treatment of digital newspapers. This case has been covered in previous Constable VAT updates and considers whether supplies of digital publications that would be zero-rated in paper formats could be zero-rated when published in electronic form in the period prior to 30 April 2020.
The Supreme Court decision was that the taxpayer’s appeal should be dismissed. The Judges concluded that the term “newspapers” in Item 2, Group 3, Schedule 8 of the VAT Act does not include the digital editions, with the result that the supplies of the digital editions by News Corp during the relevant period (in the case of this appeal between 30 August 2010 and 4 December 2016) were not zero-rated.
The judgment stated that it is common ground that the decision in relation to the period in question will also be applicable to the period up to 1 May 2020. However, it is clear that, unless falling within the specific exceptions, digital editions of newspapers are zero-rated as from 1 May 2020, when the VAT legislation was changed to allow this.
Constable Comment: This decision will impact on any businesses that made protective claims to HMRC in respect of digital publications or who have appeals stood behind this case.
Court of Appeal
2. Supplies of insulation or roof panels?
This case concerned an appeal by Greenspace (UK) Limited (GUL) against the decision of the Upper Tribunal (UT) to dismiss GUL’s appeal against VAT assessments raised by HMRC totalling £2,581,092. The issue in this case is whether installation of the roof panels which GUL is supplying falls under the reduced rate of VAT applicable to the installation of energy saving materials. The findings of the UT are covered in a previous Constable VAT Focus.
GUL argued that the issue is whether the supply is of insulation for a roof or something more extensive, namely the installation of the roof itself. GUL also argued that its supplies were properly characterised as a means of providing insulation for roofs as the predominant feature of the product being supplied was the Styrofoam insulation.
HMRC argued that both the FTT and UT had correctly concluded that the appellant’s supplies were of a roof and not insulation. Even though 95% of the volume of the product consisted of insulating material, there needed to be a pre-existing roof for the appellant to succeed in its argument. However, in this case there was no pre-existing roof to which the insulating panels were applied because the panels themselves formed the roof.
Both GUL and HMRC agreed that the supplies in issue in this case amounted to a single supply which comprised the panels and their insulation. However, the appeal was dismissed as the reduced rate of VAT does not apply to supplies of roof panels by the appellant because those supply is of a roof and is not of insulation for roofs.
Constable Comment: This case highlights the importance of correctly identifying the nature of a supply and then applying the correct rate of VAT. GUL owes HMRC a substantial amount of VAT as a result of incorrectly classifying the nature of its supplies. The VAT law surrounding the supply of insulation and other energy savings materials can be complex and it would be advisable to seek professional advice where there is any doubt.
3. VAT on matchmaking services
This appeal concerns the VAT liability of Gray & Farrar International LLP’s (G&F) supplies of matchmaking services provided to clients outside the UK and EU. The issue is whether the supplies constitutes services of consultants and other similar services and the provision of information as if so, any supplies to clients outside the UK and EU are treated as outside the scope of VAT.
G&F did not charge VAT on its supplies to clients belonging outside the EU on the basis that the service was outside the scope of UK VAT as it was providing consultancy services. HMRC took the view that G&F’s supplies of matchmaking services did not qualify as consultancy and were therefore within the scope of UK VAT. G&F appealed to the FTT who agreed with HMRC and dismissed the appeal. On further appeal, the Upper Tribunal (UT) found that the FTT had erred in law by failing to apply the correct ‘predominant element test’ for characterising the single service supplied and as a result held that G&F’s services were consultancy services or similar services and the provision of information, therefore the supplies are outside the scope of VAT. The details of these earlier hearings are considered in an earlier VAT Focus.
HMRC argued before the Court of Appeal that the ‘predominant element test’ which was applied by the UT in reaching their conclusion was not a legal requirement and is purely interpretative guidance. They also argued that if it was necessary to consider the predominant element test then the supply was a single service concerned with the provision of introductions and this single introductory service was artificially split by the UT. The typical client contracted for a minimum number of introductions to potentially suitable, prospective partners, and not to receive advice from G&F or to be provided with information. The provision of information and advice were simply the means of performing the introductory service.
G&F argued that its supply consisted of consultancy services, the provision of information and the provision of customer liaison team support and that those elements did not constitute separate supplies but formed one composite supply. It was therefore necessary to determine the overall character of the supply.
The Court held that the service provided by G&F was not a service habitually supplied by consultants or consultancy firms giving expert advice to a client. Also, the service was not data processing nor supply of information. The Court allowed HMRC’s appeal and restored the decision of the FTT meaning that the service supplied by G&F to clients belonging outside the UK and EU was within the scope of UK VAT.
Constable Comment: This case considered the VAT liability of matchmaking services and the Court concluded it does not fall within consultancy or similar, therefore it is subject to VAT. It will be interesting whether G&F appeals the Court of Appeal’s decision, as initially the FTT agreed with HMRC, the UT then overturned that decision and the Court of Appeal has now restored the FTT’s original decision.
First Tier Tribunal
4. Construction of a building for relevant charitable purposes
Between June 2017 and June 2019, The Zoological Society of Hertfordshire (“ZSH”) engaged the Appellant, Paradise Wildlife Park Limited (“PWP”), to construct a lion enclosure, an outside exhibition called the “World of Dinosaurs” and a shop called the “Dino Store” at Paradise Wildlife Park (the “Park”). PWP zero-rated this work on the basis that it supplies were of constructing a building intended for use solely for a relevant charitable purpose.
HMRC disagreed and raised an assessment for £411,641, the amount of VAT at the standard rate on PWP’s construction services. PWP agreed that the work relating to the Dino Store should be standard rated and the appeal concerned the work to construct the lion enclosure and the World of Dinosaurs Exhibition.
The Tribunal considered two questions. The main question was whether PWP was constructing buildings designed solely for a relevant charitable purpose, which turned largely on whether ZSH is carrying on a business and, if it is, whether these buildings are used to some extent in that business. There secondary issue was whether the “World of Dinosaurs”, which is an outside exhibition, is a building.
The Tribunal dismissed the appeal finding that:
(1) ZSH is carrying on a business of operating and charging for admission to the Park;
(2) The lions’ enclosure and the World of Dinosaurs were intended for use at least in part for the purposes of that business; and
(3) The World of Dinosaurs is not a building.
As a result, it was concluded that that the services PWP supplied in the construction of the lions’ enclosure and the World of Dinosaurs were not supplies in the course of construction of a building intended for use solely for a relevant charitable purpose within Item 2(a) of Group 5, Schedule 8 VATA and as such could not be zero-rated.
Constable Comment: This case considers the question of when a charity is carrying on ‘business’ activities in some detail and may be useful for other charities considering construction work.
Since the end of the transitional period on 31 December 2020 European Court judgements are not binding on the UK in most cases. However, it is expected that UK courts will still take these judgements into consideration and there may be occasions where they have a more binding effect.
5. VAT refund on assignments of bad debts
This case concerned Euler Hermes SA Magyarorszagi Fioktelepe (EH). EH is an insurance company which pays compensation to policyholders in the event of non-payment by their customers of a given debt. The amount of the compensation is 90% of the value of the unpaid debt including VAT. Under the contract, all the policyholder’s rights were transferred to EH.
EH made an application for a refund of the VAT included in the amounts paid on the grounds that in connection with the insurance product, it had paid the compensation including VAT, in respect of debts which had become definitively irrecoverable. The Hungarian tax authorities rejected the application on the grounds that the transactions which gave rise to the irrecoverable debts had not been carried out by EH.
EH appealed to the courts but the decision was upheld on the grounds that EH was not the insured person’s successor under insurance contracts and accordingly one of the substantive conditions for a refund of the VAT had not been met. The case was further appealed and referred to the CJEU.
The CJEU concluded that as the policyholders have received consideration in the form of compensation from EH, there can be no reduction of the consideration in the event of non-payment. In addition, the CJEU stated that a bad debt relief claim would infringe the principle of fiscal neutrality since the VAT paid to the tax authorities would not be exactly proportional to the price actually received by the taxable customer.
Constable Comment: The CJEU has ruled that EH was not entitled to claim bad debt relief on the debts assigned to it under the insurance contracts. There are certain conditions to be met in order to claim bad debt relief and it is important to consider these before making a claim. This supports HMRC policy regarding debts assigned to factors set out in its notice regarding Bad Debt Relief
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.