Tag Archives: Charity

CVC VAT Focus 12 July 2018

12th July 2018

HMRC NEWS

VAT grouping eligibility criteria changes

This latest measure will allow certain non-corporate bodies to join VAT groups. For example a charitable trust which is VAT registered as a partnership may now be able to form a group VAT registration with its wholly owned trading subsidiary.

VAT treatment of vouchers

Draft legislation about the implementation of an EU Directive of the VAT treatment of vouchers.

VAT Notes 2018 Issue 2

This note explains how to receive payments by Bankers Automated Clearing System (BACS) and applications to the Fulfilment House Due Diligence Scheme.

Revenue and Customs Brief 4 (2018)

This brief sets out HMRC’s policy on the changes to the time limits for VAT refund schemes if you are a local authority, police or similar body.

HMRC and online marketplaces agreement to promote VAT compliance

Find out more about the agreement and how it will help build collaborative relationships. The list of signatories has been updated.

OTHER NEWS

CVC advises many charities. Our clients include a number who offer support to vulnerable people and those with disabilities.  The recent decision in Sandpiper Car Hire Limited saw the Tribunal criticise HMRC’s approach to dealing with disabled people.

This article by one of our partners, Stewart Henry, gives an engaging analysis of the Court’s criticisms of HMRC and how it struggles to handle some of the challenges presented when dealing with more vulnerable members of the public.

CASE REVIEW

CJEU

1. Transfer of immovable property from a Municipality to the Treasury

 

This referral from the Polish Court asked whether the transfer of ownership of immovable property owned by the Municipality for compensation constitutes a taxable transaction for VAT purposes where the property continues to be owned by the Municipality as a representative of The Treasury.

 

In this case the State acquired, by compulsory purchase, immoveable property in order to develop a new national road from the Municipality. Concluding that the Municipality is a taxable person, the Court went on to outline three criteria necessary for a taxable supply to have arisen; a transfer of a right of ownership, made in the name of or by order by a public authority and there must have been payment.

 

On analysis of the circumstances in the case, it was concluded that there was a transfer of legal title of the property. With regard to the compensation received, as this was a State purchase of a Municipality piece of land, the purchase was handled as an internal accounting entry which it was argued prevented it being seen as payment for a taxable supply. The Court held that it was irrelevant as there had been consideration for a taxable supply of immoveable property; internal accounting or not.

 

In summary, the CJEU held that in circumstances where there is compensation given in exchange for immoveable property between taxable persons there is a taxable supply for VAT purposes even where the compensation is by way of an internal accounting entry.

 

CVC Comment: A supply of immovable property in exchange for consideration will constitute a taxable supply, even where the consideration is made purely by way of an internal accounting entry. A transfer is a transfer and the Court will be reluctant to read into supplies that they are not taxable transactions in the absence of any substantive evidence to the contrary. Before making any transfer of a significant value, or where operating in a grey-area, then it is always prudent to seek professional advice.

 

2. Buying back shares by transferring immovable property: A taxable supply?

 

The CJEU has responded to a Polish referral asking if the transfer by Polfarmex, a limited company, to one of its shareholders of immovable property as consideration for shares in that limited company by way of a share buy-back constitutes a taxable supply. Polfarmex  argued that the plan was to restructure the share capital of the company by buying shares back and it was therefore not subject to VAT as the transaction did not form part of its business activities.

 

The Court stated as common ground that the transaction proposed by Polfarmex and the shareholder would lead to the transfer of the right of ownership of immovable property and that Polfarmex is a taxable person in Poland. In the absence of any place of supply issues, the main question looked at by the Court is when a supply of goods is made for “consideration”.  It was held that a supply is made for consideration only where there is a legal relationship between both parties which requires reciprocal performance.

 

It was concluded that if the transfer of the immovable property to buy-back shares in Polfarmex would be subject to VAT if the actions by Polfarmex are ruled by the referring Court to constitute a part of its economic activity. The Court did not give direction on this topic.

 

CVC Comment: When restructuring companies and acquiring shares, complex VAT issues arise, as is demonstrated by this case. Before taking on the challenge of restructuring a company it is vital that professional advice is sought in order to ensure the highest degree of compliance is maintained.

 

3. Exemption on imported goods subsequently despatched to a taxable person different to that named on the invoice for the supply.

 

This decision relates to Enteco Baltic (EB), a Lithuanian wholesaler of fuel who imported fuel from Belarus free of VAT as it was to be sold onto third parties in other European Union member states.

 

Complying with relevant EU and domestic rules, EB provided the tax authorities with their own, the supplier’s and the purchaser’s VAT registration numbers and certificates of origin within the relevant time limits prior to import. However, EB’s intended supplies did not go ahead and the fuel was subsequently sold to businesses in other EU Member States. In order to remain compliant and to continue to benefit from the exemption for import VAT when an onward supply to a taxable person in another member state, EB declared this to the tax authorities with the VAT registration numbers of the new intended recipients. Whilst initially the tax authorities accepted this, an inspection in 2014/15 led to a discovery that the recipients’ VAT registration numbers declared on the initial import document did not correspond with those of the actual recipients.

 

In reaching a conclusion, the CJEU held that the exemption from VAT applying in the present circumstances is available where three core criteria are met;

 

  • The supplier has the right to dispose of the goods,
  • The supplier establishes that those goods are shipped to another Member State
  • As a result of the despatch the goods physically move out of the territory.

 

The inclusion of the purchasers VAT registration number on the invoice for the supply is not, therefore, essential, especially in situations such as those in these proceedings where the tax authorities were informed of the situation. It was held that application of the relevant exemption cannot be prohibited unless the supplier intentionally is participating in tax evasion.

CVC Comment: This complicated set of circumstances came down to a three-point test by the Court in order to reach a conclusion. The judgment reached shows that the Court will have regard to the economic reality of the transactions taking place where rigorous application of the law results in an unfair result.

 

Court of Appeal

4. VAT is not recoverable on supplies incorrectly treated as exempt by UK law

 

Here The Court of Appeal considered a question of whether the appellant, Zipvit, was entitled to deduct input tax on services received from Royal Mail which were treated as exempt by UK law at the time of supply but which should have been treated as standard rated according to EU law.

 

Royal Mail believed its supplies to be VAT exempt and it did not issue VAT invoices to Zipvit, nor pay over VAT to HMRC. The contract between the two parties made no comment with regard to VAT. Zipvit contended that it had a right to deduct VAT that should have been charged and should be deemed to be included in the invoices it had already received.

 

Two main issues fell before The Court; was VAT due or paid on the supplies by Royal Mail and whether the lack of VAT invoices barred any input VAT recovery by Zipvit anyway. Ultimately, the decisions of the FTT and UT were upheld by the Court; no VAT was paid over by Royal Mail and no right to deduct had arisen for Zipvit. The judgment focussed particularly on the importance of the lack of VAT invoices issued to Zipvit which ultimately ensured that no right to deduct had arisen.

 

CVC Comment: Zipvit has been a lead case and it will be interesting to see if it is appealed further as there have been many cases “stood behind” this judgment. Whilst this is a disappointing result for the appellants and others, it serves as an important reminder to always give consideration to VAT when drafting contracts in order to avoid complex and potentially costly situations such as the one at hand arising. The decision also emphasises the importance of obtaining correct evidence to support a right to deduct VAT incurred.

 

First Tier Tribunal

5. Failed zero-rating of a disposal of a renovated property

 

This case concerned an appeal against a decision reducing the input tax claim of a property development company.

 

Fireguard Developments Limited (Fireguard) renovated and subsequently sold a property (the property), believing the house had been vacant for ten years making the onward supply zero-rated. To reflect this Fireguard sought to reclaim the VAT incurred on the renovation in respect of the VAT accounting period ending 31 December 2016 on its VAT return. HMRC contended that the property had not been vacant for ten years prior to disposal and therefore that the supply was exempt meaning recovery of input VAT should be restricted.

 

The FTT found in favour of HMRC who submitted PAYE records and electoral role entries to support its position that the property had not been vacant for ten years prior to the refurbishment and disposal. As the property was found not to have been empty for ten years immediately prior to its sale the disposal was exempt and directly attributable input VAT was therefore irrecoverable.

 

CVC Comment: In cases where a business is seeking to benefit from a reduced or zero-rate of VAT it is essential to ensure that all material facts are known. The rules around when the reduced and zero-rates of VAT apply are complex and before taking on any significant or high value land or property related projects it is safest to seek professional advice.

 

 

CVC VAT Newsletter for Charities – May 2018

29th May 2018

Thank you for ‘opting in’ to receive our VAT & Charities newsletter. Following the recent changes surrounding personal data we are grateful for your continued interest in our circulation. We will continue to report on interesting cases, changes in HMRC policy and other topics that we hope are informative.

Please do not hesitate to contact us at any time should you wish to discuss any VAT matters. 

This VAT & Charities newsletter comments on the following:

  1. Input VAT recovery: VAT incurred in relation to investment activity
  2. Zero-rating the construction of a relevant charitable purpose building
  3. Printed matter: zero-rated goods or standard rated service?
  4. Whether local authority received services from its wholly owned not-for-profit company
  5. Application of penalties by HMRC
  6. Permission to appeal out of time 

Court of Appeal 

1. Input VAT recovery: VAT incurred in relation to investment activity 

The Court of Appeal has referred matters raised in The Chancellor, Master and Scholars of the University of Cambridge case to the CJEU for guidance. The Court of Appeal proposes to ask the CJEU for guidance on the following:

  • Where management fees are incurred in relation to a non-taxable investment activity is it possible to make the necessary link between those costs and the economic activities which are subsidised with the investment income?
  • The Court of Appeal also seeks confirmation that its reading of the Sveda decision is correct and that no distinction is to be made between exempt and non-taxable transactions for deciding whether input tax is deductible.

CVC comment: the First Tier and Upper Tribunal previously ruled that VAT incurred in relation to investment management fees could be treated as residual input tax and recoverable to the extent that income derived supports taxable business activities. This is consistent with HMRC’s previously adopted policy and CVC’s experience. If you would like to discuss the recovery if VAT incurred by your organisation please do not hesitate to contact CVC. 

2. Zero-rating the construction of a relevant charitable purpose building

Wakefield College, a charity, appealed against the Upper Tribunal’s decision that construction services provided to it in the course of constructing a new building were not zero-rated for VAT purposes. The supply in the course of construction of a building intended for use for a relevant charitable purpose may be zero-rated. HMRC accept that up to 5% use of the building may be used for purposes other than relevant charitable (i.e. for business activities).

The issue in this case was whether subsidised fees charged to students prevents the zero-rate from applying because the subsidised income represents a business activity.

The Court of Appeal found that the supply of courses by Wakefield College to students paying subsidised fees is a business activity. The Court of Appeal provided the following reasons for its decisions:

  • The sole activity of the College is the provision of educational courses, this is not an ancillary activity.
  • The provision of courses to students paying subsidised fees is significant.
  • The fees paid by subsidised students are significant in amount.
  • The subsidised fees made a significant contribution to the cost of providing courses.
  • The level of course fees was fixed by reference to the cost of the courses.
  • The fees were not fixed by reference to the means of the student.

The College’s appeal was dismissed. 

CVC comment: Wakefield College previously won its case before the First Tier Tribunal; however, HMRC succeeded in appealing the FTT’s decision before the Upper Tribunal. This decision provides further clarification and indicators of ‘non-business’ activities for VAT purposes. The Court of Appeal considered the CJEU decisions in Borsele and Finland, as well as the decision in Longridge on the Thames.

First Tier Tribunal

3. Printed matter: Zero-rated goods or standard rated service?

The Tribunal had to decide if supplies by Paragon Customer Communications Limited (Paragon) to Direct Line Insurance Services (DLIS) amounted to, as Paragon contended, a single supply of booklets comprising of predominantly zero-rated matter or, as HMRC contended, a supply of services of which booklets were not a predominant element. It is also asserted by HMRC that some of the booklets supplied as zero-rated were in fact not supplies of printed matter and so should have been standard-rated.

Paragon supplied various items of printed matter in relation to insurance documents for DLIS including advertising, standard Terms and Conditions, appraisals and reminders. The question came before the Tribunal as a result of a VAT assessment on Paragon who HMRC contended was making a single, standard-rated supply of services based on the preparation and packaging involved in the process of supplying the products, the envelopes used and separate documents which were not part of the main supply i.e. the appraisals and terms and conditions documents. Paragon appealed this assessment by HMRC on the grounds that the supplies made were one composite supply of zero-rated booklets. This was, in essence, a question of single or multiple supply.

Whilst the Tribunal considered various cases, including the single supply criteria in Card Protection Plan and issues of divisibility considered in Levob Verzekeringen BV, the conclusion of the Tribunal was relatively clear; Paragon is successful in its appeal against the assessment. It is held that packaging and delivery of the disputed documents is, in this instance, considered to be a single, zero-rated supply of booklets.  

CVC Comment: this decision may have a wider implication, in particular for charities. Many charities cannot recover VAT incurred because of their non-business and/or VAT exempt activities. HMRC changed its policy some years ago with respect to the VAT liability of direct mailing services (standard rated). This decision may call into questions HMRC’s policy. It will be interesting to see if this decision is appealed by HMRC to the Upper Tribunal.

Court of Justice of European Union (CJEU) 

4. Whether local authority received services from its wholly owned not-for-profit company

A recent Hungarian case (Nagyszénás Településszolgáltatási Nonprofit Kft., C-182/17) before the CJEU concerned supplies between a local government (municipality) and its wholly owned non-profit making organisation (NFP). The NFP, under contract with the municipality, undertook to carry out certain public tasks such as management of housing and other property, management of local public roads etc. The NFP did not issue invoices to the municipality for the services nor did it charge VAT. The NFP argued that the contract did not constitute a contract for the provision of services. The NFP also argued it was a “body governed by public law” and, as such, if it is supplying services those services are VAT exempt.

The CJEU found that where a company performs public tasks under a contract with a municipality this constitutes a taxable supply of services subject to VAT. In addition, the NFP did not meet the conditions to be classified as a “body governed by public law”, it has none of the rights and powers of a local authority. The services supplied do not fall within the VAT exemption for bodies governed by public law. 

CVC comment: many local authorities sub-contract various responsibilities to charities and not-for profit organisations. Increasingly, charities enter into service agreements as opposed to receiving grant funding. It is important to consider the VAT implications of such contracts and agreements. If your organisation is entering into similar arrangements and the VAT treatment is not clear please do not hesitate to contact CVC.

First Tier Tribunal 

5. Application of penalties by HMRC 

Over recent years we have seen a growing trend by HMRC to apply penalties to VAT errors made by taxpayers. In the case of Curtises Limited we saw the interaction of the rarely used annual accounting scheme and the leveraging of a penalty by HMRC.

Curtises Limited was required to submit its VAT return covering the period 1 January to 31 December 2016 no later than 28 February 2017. It failed to do so and, as is usual practice for payment traders (those usually paying VAT to HMRC in each VAT accounting period) HMRC raised a central assessment on 17 March 2017. The central assessment issued was in the sum £35,578. The taxpayer’s payments on account during the year totaled £32,499. However, on 5 April 2017 Curtises Limited made a payment of £46,131.

HMRC contacted the company in May 2017 requesting submission of the VAT return. This was duly submitted (and paid) the following month with a net liability of £215,233.43 owing to HMRC.

HMRC treated the receipt of the VAT return as prompted disclosure i.e. the taxpayer did not submit its VAT return by the due date. It only did so following receipt of a centrally generated assessment by HMRC. HMRC issued a penalty calculated at 15% of the potential lost revenue. This was calculated as follows:

  • Actual net VAT liability owing to HMRC: £215,233
  • HMRC central assessment: £35,578
  • Difference £179,655 x 15% = £26,948.25

The taxpayer lost its appeal. It explained that the business had expanded rapidly and it had found the growth difficult to deal with. It had a good tax compliance record generally; however, the judge found in favour of HMRC. The judge did comment that the quantum of the penalty for “a fairly minor mistake” did appear “harsh” but the law had been correctly applied.

CVC comment: this case deals not just with penalties but annual accounting and HMRC’s issuing of central assessments. Our recommendation is where a charity has a problem in submitting accurate VAT returns that the matter is pro-actively managed and dialogue entered into as soon as possible. In this case, the penalty may have been mitigated in full, or in part, if the taxpayer had contacted HMRC sooner.

First Tier Tribunal 

6. Permission to appeal out of time

Newcastle Under Lyme College (NULC) applied to the Tribunal for permission to bring a late appeal against a decision of HMRC to deny that construction supplies received during 2009 and 2010 should be treated as zero-rated.

NULC seeks to appeal HMRC’s decision dated 23 September 2014. NULC’s notice of appeal was filed on 6 February 2017, over two years out of time. NULC contends that a portion of the construction services supplied and received should be zero-rated on the basis that a portion of the building was intended for use solely for a relevant charitable purpose (RCP), namely, use by a charity otherwise than in the course or furtherance of business. This is on the basis that income received from ‘part-funded’ students is a non-business activity. There is litigation pending in this area in a number of cases, including Wakefield College which is the subject of an appeal to the Court of Appeal. Both NULC and HMRC agree that the case will be unarguable if the Court of Appeal upholds the Upper Tribunal’s decision in Wakefield College.

The Tribunal took into account the amount of VAT at stake in this appeal, why the delay in appealing occurred, as well as the fact that NULC has not presented a consistent case. The Tribunal made the point that permission to appeal out of time should only be granted exceptionally and it should not be granted routinely. Nevertheless, the Tribunal granted permission to NULC to bring a late appeal. The Tribunal considered this appropriate in order to deal justly with this case.

CVC comment: as the Tribunal has granted permission to bring a late appeal, NULC’s appeal will be stood behind the Court of Appeal’s judgment in Wakefield College. Wakefield College has lost its appeal before the Court of Appeal. Therefore, it seems likely NULC’s appeal will also fail. Nevertheless, this case presents an interesting insight into the matters the Tribunal consider in granting permission to appeal out of time. Any appeal lodged must be done so within strict time limits.

 

 

Constable VAT Consultancy LLP (CVC) is a specialist independent VAT practice with offices in London and East Anglia. We work together with many charities and not-for-profit bodies ranging from national charities, those working overseas, and regionally based local organisations. CVC has a nationwide client base. 

We understand that charities wish to achieve their objectives whilst satisfying the legal requirements placed upon them. Charities may be liable to account for VAT on supplies made and VAT will be payable on certain expenditure. As irrecoverable VAT represents an absolute cost to most charities, regardless of their VAT registration status, there is a need to review the position regularly and carefully. We offer advice with planning initiatives, technical compliance issues, complex transactions, help with innovative ideas on VAT saving opportunities, and liaising with HMRC. 

If you would like to discuss how VAT impacts on your organisation please contact Stewart Henry,  Laura Beckett or Sophie Cox on 020 7830 9669, 01206 321029 or via email on stewart.henry@ukvatadvice.com, laura.beckett@ukvatadvice.com and  sophie.cox@ukvatadvice.com.  Alternatively, please visit our website at www.ukvatadvice.com where you can view some of the services we offer in more detail and subscribe to our free general and regular VAT alerts and updates. Visit our website for current news updates. You can also follow CVC on Twitter. 

This newsletter is intended as a general guide to current VAT issues and is not intended to be a comprehensive statement of the law. No liability is accepted for the opinions it contains or for any errors or omissions. CVC 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 newsletter. Specialist VAT advice should always be sought in relation to your particular circumstance.

CVC client wins case before Tribunal – construction of clubhouse is zero-rated

13th February 2018

Constable VAT Consultancy LLP (CVC) is pleased to report that our client, the registered charity Greenisland Football Club (GFC), has successfully won its appeal against the issue of a VAT penalty assessment by HMRC in the First Tier Tax Tribunal (FTtT). GFC and CVC would like to thank Tim Brown of Temple Tax Chambers who represented the charity at the hearing in Belfast.

1. Background

In 2010 GFC commenced an ambitious project to construct a clubhouse which it intended would be a multi-purpose facility for use by the local community.

In 2011 the charity issued a zero-rating certificate to the appointed contractor. The certificate was issued on the basis that the building would be used for a relevant charitable purpose (RCP) as a village hall or similarly in providing social or recreational facilities for a local community. GFC is not VAT registered. VAT incurred on construction works would have been an absolute cost to the charity.

GFC fulfilled its original intention. Since its construction the building has been enjoyed by various community groups and local people.
HMRC carried out a targeted and proactive campaign in 2014 when it wrote to numerous charitable sports clubs. HMRC sent a standard seven question letter to a range of sporting clubs in the UK. HMRC clearly feels that many sports organisations have benefitted from zero-rating when they should not have done. Some clubs are not registered with the Charity Commission which may be problematic for such organisations when seeking zero-rating.

In 2014 HMRC issued a penalty assessment on GFC in the sum £53,101 on the basis the building did not satisfy the RCP test. The decision to raise the penalty assessment was upheld on review by HMRC in 2015 and the charity appealed HMRC’s decision.

The case was originally listed to be heard on 8 January 2016. A few weeks before the hearing HMRC applied for the case to be stood over pending the decision in Caithness Rugby Football Club (Caithness) which was under appeal to the Upper Tribunal (UT). HMRC subsequently lost Caithness but then applied for GFC’s case to be stood over behind HMRC’s preferred new lead case. Due to the amount of time GFC’s appeal had been taken to be heard, and the uncertainty impacting adversely on GFC’s charitable activities, GFC opposed HMRC’s request. The Tribunal refused HMRC’s application. This allowed GFC to proceed to Tribunal last month.

2. GFC’s position

The charity’s position is as follows:

  • GFC is a registered charity recorded on the charity register.
  • The building it constructed is not a village hall but it is similar to a village hall and used as such.
  • The charity’s intention prior to construction was that the building would be a facility which would be used by the wider community and not just GFC.
  • The charity’s original intention has been demonstrably fulfilled. The facility has been used by a range of community groups giving the local population access to a wide range of activities they would not previously have had an opportunity to partake in.
  • The building is available for use on a ‘first come first served’ basis.

3. HMRC’s position

  • Sports clubhouses are ‘dual purpose buildings’ and are not used ‘similarly’ to a village hall because such facilities are used by a) the club and b) the local community.
  • Only use by the community qualifies for RCP use and this does not include use by a local sports club, even though a local sports club is inevitably part of that local community.
  • If a decision on hire and bookings is at the club’s discretion the facility cannot be said to be ‘similar’ to a village hall (i.e. ‘first come first served’) because use is not at the direction of the local community but GFC.
  • The term ‘similarly’ means similar to the way a village hall operates i.e. the trustees or committee of a village hall would be made up of individuals from various local groups and clubs.
  • The renting out of a facility to a variety of local groups or members of the community by a charity, or the provision of social and recreational facilities by a charity, does not necessarily mean that zero-rating applies to the construction of a new facility.
  • HMRC also suggested GFC was using the clubhouse for business purposes because it charges adult members a subscription and the parents of junior members pay fees to cover costs such as purchasing equipment.

4. Decision

The Tribunal found that GFC was correct to issue a zero-rating certificate to the contractor. The Tribunal also found that, had it reached a different conclusion on this entitlement, the charity had a reasonable excuse for issuing the certificate. The appeal lodged covered both issues. This, the reasonable excuse point, is something which we would recommend any club involved in a dispute with HMRC considers. GFC had read HMRC’s VAT public notices and discussed the matter with professional advisors.

5. Overview

For a number of years now it has been difficult to be certain when HMRC will accept sports pavilions/clubhouses are intended to be used ‘similarly’ to village halls. The UT in Caithness Rugby Football Club (Caithness) and New Deer Community Association (and now the FTT in this case) do not accept the majority of HMRC’s interpretations set out in either VAT Notice 708 (buildings and construction) or HMRC internal guidance manuals.

HMRC appears to have a two pronged strategy in attacking zero-rating in GFC and similar cases.
Firstly, the management of the building should be vested in a committee that represents a number of community groups. This approach has not been supported by the UT.

Secondly, HMRC believes there is a difference between a charitable sports club’s use of a facility and the community’s use of that same building. This ‘dual purpose’ argument means a distinction should be drawn because the two uses are different and are not both RCP. The use by the club, according to HMRC, is not RCP. This seems an unreasonable argument when considering that members of local sports clubs are very likely to come from their local community. It is difficult to view amateur sport as anything other than a recreational activity, as contemplated by the zero-rate provisions.

Viewing the Hansard entries dated 12 July 1989 (Value Added Tax: Buildings and Land Volume 156 1036-63) Peter Lilley, the then economic advisor to the treasury, is recorded as saying in Parliament when referring to this matter “the amendment therefore seeks to reinstate for the construction of charitable community buildings the zero-rate which was abolished on 1 April as a consequence of last year’s court judgment”.

Mr Lilley went on to say “the amendment is confined to buildings run by charities. It covers church halls, village halls and other community buildings providing similar social and recreational facilities for a local area. It also extends to buildings such as cricket pavilions and changing rooms, constructed for charitable playing fields and recreation ground associations”.

When Mr Lilley was questioned on the application of the zero-rate he responded as follows: “The Honourable Member for Wrexham (Dr Marek) asked me to clarify the definition further and asked in particular whether it would include sports halls. For those sports halls that are both charities and run for the benefit of the local community, the answer is yes, they will be included, as they come under the general heading of providing recreational facilities”.

It is disappointing that HMRC is actively pursuing voluntary organisations whose members and supporters devote so much free time and effort to help their local communities. This not only seems at odds with VAT law but also what Parliament intended that law to include. The majority of people volunteering do their very best to satisfy all of the many regulatory requirements necessary when operating a not-for-profit sports club, including VAT. Such organisations are usually very small with a low turnover in terms of income generated. The activities of these clubs may mean that committee members or Trustees take personal financial risks in return for their endeavours. HMRC seems to consider that it is justified in investing large sums of taxpayer’s money trying to prevent such organisations benefitting from a relief that is quite clearly intended to apply.

If you are involved with a charitable or not-for-profit sports club or association (or any other charity) and are in dispute with HMRC over a technical VAT matter or interpretation of VAT law please do not hesitate to contact CVC. We would be pleased to help.

CVC VAT Focus 11 January 2018

11th January 2018

We would like to wish our regular readers and subscribers a happy and prosperous 2018.

HMRC NEWS 

HMRC were busy during the last couple of weeks of 2017. The following documents were published or updated on the gov.uk website:

CVC BLOG

In CVC’s latest blog Helen Carey considers HMRC’s policy on VAT zero-rating and new buildings further to the recent Information Sheet 07/17 issued by HMRC.

CASE REVIEW 

Court of Justice of European Union (CJEU)

1. Special derogating measures – Avon Cosmetics

Avon Cosmetics Limited sells products through independent representatives. Most of these representatives are not VAT registered. Avon sells products to the representatives at a price below the retail price Avon envisage will be achieved. Sales to representatives are subject to VAT. The sales made by the representatives are not subject to VAT. The effect of this business model is that VAT is not accounted for on the difference between Avon’s selling price and the representative’s selling price. To remedy this situation the UK obtained a derogation from the EU to deviate from the standard rule that VAT is charged on the actual sales price. As a result Avon calculates output VAT due based on the representative’s expected selling price. Two adjustments are made to this calculation to take account of the fact that some products are purchased by the representatives for their personal use and some products are sold by the representatives at a discount.

Avon claimed a refund of overpaid VAT in the sum of £14million on the basis that the special derogation does not take account of the VAT incurred by the representatives on demonstration products. According to Avon, these purchases amount to business expenditure and the VAT relating to those purchases would be recoverable if they were VAT registered.

The matter was referred to the EU on the question of whether the derogation and its implementation infringed the EU principles of fiscal neutrality. The CJEU found that the measures implemented as part of the derogation do not infringe the EU principles and the UK is not required to take account of VAT incurred on purchases used for the purposes of the representatives’ economic activity.

CVC comment: this is an interesting case before the CJEU which considered whether a UK derogation infringed the EU principles of fiscal neutrality.

Upper Tribunal

2. VAT exemption for welfare services 

HMRC appealed against the First Tier Tribunal’s (FTT) decision that the UK law was incompatible with the Principal VAT Directive by recognising supplies made by charities as exempt from VAT but not those made by LIFE Services Limited. LIFE is a profit making private organisation which provides day care services for adults with a range of disabilities. Gloucestershire County Council monitors and inspects LIFE’s services which are provided under a formal care plan agreed with the social services department of the Council.

The Upper Tribunal considered that the FTT erred in its decision. The UK has adopted two criteria for determining which non-public law bodies should be entitled to the VAT exemption for welfare services. The first is that the body is regulated. The second is that the body is a charity. To be able to successfully argue UK law breaches the principles of fiscal neutrality LIFE must be able to demonstrate that it falls within the same class as one of the criteria.

The UT found that LIFE cannot equate itself with regulated bodies because, for LIFE, regulation is optional. Similarly, LIFE cannot say it fall within the same class as a charity because it is not subject to the same constraints and regulation as a charity, and it does not operate for the public benefit. HMRC’s appeal was therefore allowed.

CVC comment: this decision by the Upper Tribunal appears to confirm that UK legislation is compatible with the Principal VAT Directive. This decision will be disappointing for private welfare providers that do not fall within the criteria set by the UK for determining which bodies should be entitled to the VAT exemption for welfare services. LIFE is stood behind another case, The Learning Centre (Romford) Limited (TLC), in respect of another issue. TLC have argued that the UK welfare exemption breaches the principles of fiscal neutrality in that bodies making supplies in Scotland and Northern Ireland making identical supplies are granted exemption. 

First Tier Tribunal

3. Whether the construction of a cricket pavilion was zero-rated

Eynsham Cricket Club is a community amateur sports club (CASC). The Club appealed against the decision of HMRC that services supplied to the club in the course of constructing a new pavilion were standard rated for VAT purposes. The club argued that the services were zero-rated because the pavilion was used for a “relevant charitable purpose” (RCP). For the purposes of the VAT zero-rate, RCP use means use by a charity either otherwise than in the course of a business; or, as a village hall or similar.

The Tribunal found that the Club was not established for charitable purposes at the relevant time; therefore, the Club’s appeal failed.

This decision is considered in more detail in our VAT & Charities Newsletter.

CVC comment: this was a revised decision by the Tribunal following review. This case provides an interesting commentary regarding all of the conditions which must be met in order to obtain zero-rating for RCP use. 

4. Whether free admission to events run by a charity are non-business activities and the VAT recovery implications

The Yorkshire Agricultural Society, a charity, carries out a range of activities which include holding events and hiring out facilities. In total there are approximately 700 events each year. No admission fee is charged in respect of two of the charity’s events. HMRC considers that these two events are non-business activities and, as such, disallowed input tax incurred that directly related to these events. The charity appealed this decision.

HMRC’s policy is that the free supply of services by a charity is a non-business activity. VAT incurred which directly relates to non-business activities cannot be recovered.

The charity argued that the events generated taxable income from catering. A third party provides catering services on the site. The charity receives a share of the income generated by the third party. The Tribunal found that there was no direct link between the free events and the charity’s share of catering income. The charity also argued that there are links between the free events and the Great Yorkshire Show (an admission fee is charged). However, the Tribunal was not satisfied that there were sufficient direct and immediate links between the free events and the Show. The costs relating to the free events could not be said to be cost components of the Show or the charity’s other economic activities. The charity’s appeal was dismissed.

CVC comment: the Tribunal did not consider whether input tax incurred on general overheads that could not be directly attributed to any particular activity of the charity could only be partially recovered. 

5. Membership – single or multiple supply

Owners of Harley-Davidson motorcycles may join the Harley Owners Group (HOG). HOG is a business unit of Harley-Davidson Europe Limited (HDE). HDE appealed against HMRC’s decision that supplies made by it to members of HOG in consideration for membership subscriptions constitute a single, standard rated, supply for VAT purposes. HDE contends that it makes a number of distinct supplies to each member and the VAT treatment of each benefit must be determined separately.

Under HMRC’s approach VAT is chargeable on all membership subscriptions regardless of where the members belong. Under HDE’s approach no VAT is chargeable on supplies to members outside the EU (being zero-rated supplies of goods and/or services); and, a substantial proportion of the membership fee paid by EU members relates to zero-rated printed matter.

Benefits received by HOG members include a magazine, patches and pins, maps, e-magazine, museum entry, events and online access.

HMRC’s primary argument was that there was a single principal supply of membership and all other benefits were not ends in themselves but a means of better enjoying the principal element; however, the Tribunal found that members do not join HOG simply for the status of being a member. The typical member wants the individual benefits. In addition, while the Tribunal Judge did consider it relevant that a single price was charged and members did not have the ability to choose what benefits are supplied (suggesting a single supply), it is clear from case law that this is not determinative. The Tribunal concluded that the individual benefits provided are too significant to allow the supply to be characterised as a single supply of membership rather than a number of independent supplies. HDE’s appeal was allowed.

CVC comment: this decision provides interesting commentary regarding the distinction between single and multiple supplies for VAT purposes. This topic has been considered a number of times before the Tribunals and Courts.  

We also issue specialist Land & Property and VAT & Charities newsletters. If you wish to subscribe to the Land & Property newsletter please email laura.beckett@ukvatadvice.com. If you wish to subscribe to the VAT & Charities newsletter please email sophie.cox@ukvatadvice.com.

A to Z of VAT for Charities

11th January 2018

This A to Z of VAT for Charities guide is intended for use as a point of reference and to flag possible VAT issues. It may be that by reading this guide and referring to HMRC guidance charities can identify VAT risks and VAT opportunities present in certain circumstances; however, if VAT support is needed on specific transactions or if you have a general VAT enquiry CVC would be very pleased to help.

VAT case law and HMRC policy is ever evolving and this should be taken into account when using this VAT information guide for reference.

If you have any VAT queries please contact charity specialist Stewart Henry, Laura Beckett or Sophie Cox using the following contact details:

email: stewart.henry@ukvatadvice.com
direct dial: 01206 890798

email: laura.beckett@ukvatadvice.com
direct dial: 01206 890799

email: sophie.cox@ukvatadvice.com
direct dial: 01206 890797