Category Archives: Tribunal

The Default Surcharge for late VAT payments

By Marcus Ward 5 September 2017

A Default Surcharge is a civil penalty issued by HMRC to “encourage” businesses to submit their VAT returns and pay the tax due on time.

VAT registered businesses are required by law to submit their return and make the relevant payment of the VAT by the due date.

A default occurs if HMRC has not received your return and all the VAT due by the due date. The relevant date is the date that cleared funds reach HMRC’s bank account. If the due date is not a working day, payment must be received on the last preceding working day.

Payments on Account (POA)

If a business is required to make POA it must pay them and the balance due with the VAT Return by electronic transfer direct to HMRC’s bank account. The due dates for POA are the last working day of the second and third month of every quarterly accounting period. The due date for the balancing payment is the date shown on the business’ VAT Return. It is important to ensure that payments are cleared to HMRC’s bank by these dates or there will be a default.

Consequence of default

A business will receive a warning after the first default ‐ the Surcharge Liability Notice (SLN). Do not ignore this notice. If you fail to pay the VAT due on the due date within the next five quarters, the surcharge will be 2% of the outstanding tax. The surcharge increases to 5% for the next default, and then by 5% increments to a maximum of 15%. Each default, whether it is late submission of the return or late payment, extends the surcharge liability period, but only late payment incurs a surcharge.

If you can’t pay the VAT you owe by the due date or are having difficulties, contact the Business Payment Support Service immediately.

Special arrangements for small businesses

There are special arrangements if a business’ taxable turnover is £150,000 or less to help if there are short term difficulties paying VAT on time. HMRC send a letter offering help and support rather than a Surcharge Liability Notice the first time there is a default. This aims to assist with any short-term difficulties before a business formally enters the Default Surcharge system. If the business defaults again within the following 12 months a Surcharge Liability Notice will be issued.

Minimum surcharges

There is a minimum of £30 for surcharges calculated at the 10% or 15% rates. There will not be a surcharge at the 2% and 5% rates if it is calculated it to be less than £400. However, a Surcharge Liability Notice Extension extending the surcharge period will be issued and the rate of surcharge if you default again within the surcharge period will be increased.

Circumstances when HMRC will not levy a surcharge

There’s no liability to surcharge if a business:

submits a nil or repayment return late
pays the VAT due on time but submit your return late

HMRC will not issue a surcharge in these circumstances because there is no late payment involved. If a business had defaulted previously HMRC will issue a Surcharge Liability Notice Extension extending the surcharge period because the return is late, but they will not increase the rate of surcharge.

Time limit

A business’ liability to surcharge will expire if a business submits all of its returns and payments for tax periods ending on or before the end of the surcharge liability period on time.

Reasonable excuse

If a business has a reasonable excuse for failing to pay on time, and it remedies this failure without unreasonable delay after the excuse ends, it will not be liable to a surcharge.

There’s no statutory definition of reasonable excuse and it will depend on the particular circumstances of a case. A reasonable excuse is something that prevented the business meeting a tax obligation on time which it took reasonable care to meet. The decision on whether a reasonable excuse exists depends upon the particular circumstances in which the failure occurred. There is a great deal of case law on this particular issue. Please contact us should there be doubt about a reasonable excuse.

Disagreement over a surcharge

If you disagree with a decision that you are liable to surcharge or how the amount of surcharge has been calculated, it is possible to:

ask HMRC to review your case
have your case heard by the Tax Tribunal

If you ask for a review of a case, a business will be required to write to HMRC within 30 days of the date the Surcharge Liability Notice Extension was sent. The letter should give the reasons why you disagree with the decision.

Examples when a review may be appropriate are if a business considers that:

it has a reasonable excuse for the default
HMRC applied the wrong rate of surcharge
HMRC used the wrong amount of VAT when calculating the surcharge
there are exceptional circumstances which mean the default should be removed

A business will still be able to appeal to the Tribunal if it disagrees with the outcome of the HMRC review.

We are very experienced in dealing with disputes over Default Surcharges, so if you feel that one has been applied unfairly, or wish to explore your rights, please let us know.

VAT Public Notice 700 Updated

By Marcus Ward 25 August 2017

Notice 700: The VAT Guide has been updated.

This HMRC Notice is a “starting point” for general VAT information and provides a guide to all the main VAT rules and procedures. It also provides assistance with the problems faced by business and includes an index which helps users find further information by referring to a particular section or paragraph in one of HMRC’s other, more specialised publications. There have been over 30 changes to the Notice which was last updated in 2016.

A full list of changes is set out in the Notice, but the most salient are as follows:

Additional guidance on MOSS – para 4.8.4
Single and mixed supplies – para 8.1
Continuous supplies to connected persons – para 14.3.1
Various commentary on invoices (including electronic invoicing) – paras 16.6, 16.8, 17.7 17.8
Accounting schemes – para 19.2
Agents registered for VAT acting in their own name when the customer is not registered – para 1.2
Penalties for inaccuracies – para 27.3
Integrity of supply chains – para 27.5.2

The number of changes in just one year highlights the fast pace of the tax and the number of challenges which taxpayers have won. I cannot see this pace letting up in the future either.

As always, if you have any queries about the changes, please contact us.

VAT: Latest from the courts –zero rating of sub-contractors’ supplies

By Marcus Ward 8 August 2017

In the First Tier Tribunal case of Summit Electrical Installations Ltd the issue was whether supplies in respect of student accommodation made by an electrical sub-contractor were eligible for zero rating as supplies in the course of construction of buildings designed as a series of dwellings. Alternatively, were they, as HMRC contended; standard rated supplies in the course of construction of a building used for a Relevant Residential Purpose (RRP)?

Background

The appellant was appointed as the electrical subcontractor working to a main contractor on a development known as Primus Place in Leicester. This development is a seven storey block of student accommodation comprising 140 studio flats and associated facilities. Floors one to six are similar in layout with the majority of the studio flats being the same size. There are also a number of larger studios on some floors. On the ground floor there is a communal reception, cycle store, and laundry. In addition management offices, stores, bins and plant rooms are situated on the ground floor. Each of the studio flats was fitted out with a bathroom pod (a unit including shower, sink and toilet) installed in the corner of the room. In addition there was a small kitchenette with dish washing sink, countertop, cooker, fridge and microwave. Through a doorless stud wall is an open plan sleeping area and walk in cupboard.

The planning permission was granted subject to one relevant condition which provided that at the development: “…no person other than a full time student attending the University of Leicester or DeMontfort University…shall occupy these flats at any time”.

The main contractor provided a zero rating certificate to the appellant. This certificate certified that the developer of the site intended to use the buildings for a relevant residential purpose, namely student living accommodation.

Technical

In this case the distinction between the construction of dwellings and RRPs is that sub-contractors may zero rate their supplies if the work is in respect of dwellings, but those same supplies are standard rated if what is being constructed is a RRP. It is useful to consider the distinction here.

Relevant Residential Purpose

RRP means use as:

(a) a home or other institution providing residential accommodation for children

(b) a home or other institution providing residential accommodation with personal care for persons in need of personal care by reason of old age, disablement, past or present dependence on alcohol or drugs or past or present mental disorder

(c) a hospice

(d) residential accommodation for students or school pupils

(e) residential accommodation for members of any of the armed forces

(f) a monastery, nunnery or similar establishment, or

(g) an institution which is the sole or main residence of at least 90 per cent. of its residents

but not use as a:

hospital or similar institution

prison or similar institution, or

hotel, inn or similar establishment

Clearly, by the above definition, student accommodation is deemed to be a RRP. Therefore, the Tribunal was asked to consider whether the accommodation would also qualify as dwellings, and if so, whether “designed as a dwelling” takes precedence. The definition of a dwelling is as follows (“Note 2” as referred to below).

Dwellings

A building is designed as a dwelling or a number of dwellings where in relation to each dwelling the following conditions are satisfied:

(a) the dwelling consists of self-contained living accommodation;

(b) there is no provision for direct internal access from the dwelling to any other dwelling or part of a dwelling;

(c) the separate use, or disposal of the dwelling is not prohibited by the term of any covenant, statutory planning consent or similar provision; and

(d) statutory planning consent has been granted in respect of that dwelling and its construction or conversion has been carried out in accordance with that consent.

Decision

The judge ruled that the accommodation qualified as dwellings for the purpose of zero rating such that the sub-contractors supplies could also be zero rated. This was the case even though the planning permission contained a condition restricting their use to students of the universities only. The building also qualified as a RRP but via VAT Act 1994, Schedule 8, Group 5, note 2 – designed as a dwelling takes precedence over RRP.

NB: The Tribunal also found that HMRC guidance which sets out that in similar circumstances it is the main contractor who determines which type of zero rating applies to a particular development has no basis in law. It is the responsibility of the sub-contractor to determine whether it is working on a dwelling or a RRP building regardless of the main contractor’s position.

Commentary

HMRC appeared to have relied solely on para (c) of Note 2 (above) to disqualify the accommodation from being dwellings, on the basis that the planning permission prohibited occupation by any other person than students of the universities, but the judge was having none of that. The decision was hardly unexpected, but the comments on there being no legal basis to support HMRC’s published guidance is helpful and provides clarity.

As always, when analysing supplies of construction services (plus associated goods) and transactions involving land and property it pays to get proper VAT advice. There are many traps for the unwary and the values involved are usually high. The cost of getting it wrong can be very harmful to a business.

VAT: Latest from the courts – extent of education exemption

By Marcus Ward 7 August 2017

In the case of SAE Education Ltd (SAE) at the Court of Appeal, the court was required to decide on whether the exemption for education services extended to a “Special Associate College”.

Background

At the relevant time here was relationship between SAE and Middlesex University which has existed since 1998 when the first Memorandum of Co-operation was signed. This was a contractual document which provided for certain BA courses to be taught by SAE at specified campuses as “validated collaborative programs” of the university. Subsequently the university and SAE entered into further Memoranda of Co-operation which replaced the earlier agreement and provided for the validation of additional courses. Tuition was provided by SAE subject to quality assurance safeguards. SAE provided library, computer and other facilities but SAE students would not normally be entitled to access or use of the university’s Learning and Resource Services unless negotiated at extra cost. Nor were they to be entitled to access university’s accommodation and other social welfare services or to apply for financial support from the University’s Access to Learning Fund. They were however, entitled to access the university’s Disability Support Services but again at an additional cost.

In 2010 a decision by the university to grant SAE accredited status was made. This meant that SAE was accredited to validate, monitor and review courses of study leading to university undergraduate awards in certain subjects. This gave SAE the ability to validate the specified programmes itself (although Middlesex University staff continued to be involved in the assessment of the programmes).

The issue

SAE claimed that its supplies were exempt on the basis that it was a college of Middlesex University and therefore an “eligible body” (see below) and that the services supplied were educational as the university outsourced certain courses to it.

HMRC disagreed and assessed for output tax on the appellant’s services on the basis that exemption did not apply and the supplies were standard rated.

Legislation

The relevant legislation: VAT Act 1994, Schedule 9, Group 6, item 1 insists that in order for exemption to apply the provision of education (inter alia) must be by an “eligible body”. The matter to be considered therefore was; is SAE Education Ltd an eligible body. An “Eligible body” is defined in Note (1). It includes a long list of different types of school and higher education establishments but the appeal concerned paragraph (b): “a United Kingdom university, and any college, institution, school or hall of such a university;”

Decision

So was the appellant a UK university, college, instruction, school or hall of such a university? The judges concluded that it was not.

It was decided that although Middlesex University outsourced certain courses to it, and that SAE was appointed as a Special Associate College, this fell short of making it a college in a constitutional or structural sense. In their view a college means entities which are a constituent part of an university. The example given was of Cambridge and Oxford colleges which have been organised for centuries on a federal system under which the colleges and private halls, although legally independent and self-governing, have provided the students of the university and have assumed the primary responsibility for their tuition. The universities themselves are corporations and are regulated by statute with their own separate legal identity and status. “The colleges and private halls are therefore an integral part of the structure of the university and their members make up the university’s teaching staff and students.”

Commentary

It would appear that as a result of the approach in this case, the exemption for education may be more restrictive than previously understood. It is vital that providers of education review their VAT status as soon as possible. I would advise that a VAT consultant is used because this is an area where small details may affect the VAT treatment of the services. The ruling in this case is not helpful.

VAT – Latest from the courts: Fleming claims

By Marcus Ward 26 July 2017

In the First Tier Tribunal (FTT) case of NHS Lothian Health Board “the Board” the judge was asked to consider whether the Board had a valid Fleming claim* in respect of certain laboratory services performed from 1974 to 1997. The relevant services were, inter alia; Nequas work, food-testing, water-testing, non-medical testing of samples, especially for public health, and research and development.

Decision

The appeal was rejected. Although the Tribunal accepted the considerable evidence and testimony from members of staff working for the Board during the relevant years, and had decided that the relevant supplies were subject to VAT (they were not exempt of non-business) unfortunately, there was insufficient documentary evidence to actually quantify the amount of input tax claimed. Of course, in order to recover input tax, it had to relate to taxable (business) supplies made by the appellant. The Tribunal was required to consider whether the business income of the laboratories could be calculated. The FTT considered that whilst the evidence was helpful in determining that taxable supplies were made, that evidence fell short of facilitating its quantification. While the business income was almost certainly significant, the Tribunal did not consider that it has been quantified satisfactorily for the whole period.

The appellant contended that a set percentage representing business income could be projected backwards to earlier VAT periods. The Tribunal did not consider such an approach “reasonable or acceptable” and that the timescale involved also undermined the likely accuracy of the process of extrapolation. (The Tribunal suggested that there is a need to have a verifiable percentage, calculated by reference to prime records at regular intervals. For example, it might well be acceptable in a 25 year period to have verifiable figures every five years, and if there is not significant variation, to use extrapolated figures for the intervening years). There was also uncertainty about the Board’s partial exemption position and how, historically, apportionment was carried out.

Commentary

This case demonstrates the difficulty of making retrospective claims that go back to the early 1970s, that’s over 40 years ago! It is to be expected that certain records may be absent and HMRC has previously agreed that the required information may be established by other methods, however, a claim has to be made on the basis of “something more concrete” than a backwards projection of a percentage figure calculated from more contemporary records. The judge gave an example of evidence that may be acceptable in these circumstances.

The outcome does seem somewhat unfair given the fact that all parties agree that VAT was overpaid due to an error made by HMRC, but the level of evidence required to support a Fleming claim has to be of a certain standard to be accepted.

As always in VAT – record keeping is of the utmost importance.

* Background to Fleming claims

Fleming claims’ are claims for underdeclared or overpaid VAT, potentially going back as far as the inception of VAT in 1973. They followed the House of Lords judgements in January 2008 in the cases of Fleming and Conde Nast (Fleming) which concerned the way that the three year time limit on making claims had been introduced. In Revenue and Customs Brief 07/08, published on 20 February 2008, claims were invited in respect of overpaid output tax for accounting periods ending before 1 May 1997. Subsequent legislation in the 2008 Finance Act limited the scope for making claims for these accounting periods by introducing a new transitional period ending 1 April 2009, before which any such claims had to be made.

Is the Upper Tribunal bound by High Court decisions?

By Marcus Ward 11 July 2017

Upper Tribunal versus High Court

In the case of Meena Seddon Settlement which actually involved Inheritance Tax, the First Tier Tribunal (FTT) was required to decide whether the Upper Tribunal is bound by decisions made in the High Court. The FTT decision will doubtless affect VAT cases in the future.

It decided to follow a precedent set by the Upper Tribunal over an earlier decision by the High Court.

The taxpayer contended that the matter should be decided on the basis of a previous High Court decision. HMRC argued on the basis of a later Upper Tribunal decision. In normal circumstances, a later decision should take precedence over the earlier if both decisions have the same authority and have fully considered the previous judgments. However, if the taxpayer was correct to say that the Upper Tribunal was bound by precedents set by the High Court, the later decision could be disregarded as being wrong in law.

The FTT decided that it was the intention of Parliament that the Upper Tribunal was not bound to follow High Court precedents. This was notwithstanding the fact that a High Court could have a supervisory role over the Upper Tribunal in cases of judicial review. Therefore, it determined the case on the authority of the later Upper Tribunal decision in favour of HMRC.

VAT: Latest from the courts – extent of exemption for financial services

By Marcus Ward 5 July 2017

Coinstar Limited

In the Upper Tribunal (UT) case of Coinstar Limited the issue was whether the services Coinstar provided were exempt supply of financial services via Value Added Tax Act 1994, Schedule 9, Group 5, item 1 – “The issue, transfer or receipt of, or any dealing with, money, any security for money or any note or order for the payment of money.”

Background

I’ve no doubt that you’ve seen those kiosks with machines in supermarkets into you which you tip your bag full of loose change in return for a voucher. The voucher can then be redeemed at the checkout against the supermarket bill. Coinstar provides this service and charges 9.9% of the value of the coins inserted into the machine. HMRC considered this to be a table service of “coin counting”, while Coinstar claimed that it was an exempt supply under the above legislation.

Decision

The UT affirmed the decision of the First Tier Tribunal and dismissed HMRC’s appeal, ruling that Coinstar was providing an exempt financial service. The Transaction was not a coin counting service, but a service of exchanging a less convenient means of exchange into a more convenient one which was provided in return for the 9.9% fee. This involved a change in the legal and financial status of the parties such that the exemption applied.

Commentary

Another case which demonstrates the fine line between exemption and taxable treatment of “financial” services. HMRC’s argument here was that this was a single supply of coin counting (which is outside the exemption) but clearly, a person emptying their big pots of change into the machine did not want it to be simply counted, the aim was to obtain a voucher in return for the shrapnel (or, if feeling philanthropic, there is an option to donate the coins to charity – for which Coinstar made no charge). It is fair to observe that just because a supply may be “financial” in nature it is not automatically exempt. It pays to check the liability of such services because, as may be seen, HMRC often attack exempt treatment. I have recently had to untangle a position where there was doubt about whether an online service amounted to exempt intermediary service. HMRC ultimately agreed that exemption applied in this case, but that was not their starting point.

VAT: More on agent/principal – Latest from the courts

By Marcus Ward 3 July 2017

Lowcost Holidays Ltd

There is a very important distinction in VAT terms between agent and principal as it dictates whether output tax is due on the entire amount received by a “middle-man” or just the amount which the middle-man retains (usually a commission). It is common for the relationship between parties to be open to interpretation and thus create VAT uncertainty in many transactions.

It appears to me that this uncertainty has increased as a result of the growing amount of on-line sales and different parties being involved in a single sale.

By way of background, I looked at this issue at the end of last year here

The case

On a similar theme, the First Tier Tribunal (FTT) case of Lowcost Holidays Ltd the issue was whether the Tour Operators’ Margin Scheme (TOMS) applied to Lowcost’s activities.

Background

Lowcost was a travel agent offering holiday accommodation in ten other EU Member States, and other countries outside the EU, for the most part to customers based in the UK. The issue between the parties is whether Lowcost provided holiday accommodation to customers as a principal, dealing in its own name, under article 306 of Directive 2006/112, the Principal VAT Directive and therefore came within TOMS or whether it acted solely as an intermediary or agent (in which case TOMS would not apply and the general Place Of Supply rules apply).

Decision

The FTT found in favour of the appellant. HMRC had argued that Lowcost was buying and selling travel and accommodation as principal, however, the FTT decided that the contracts which Lowcost entered into with; hotels, transport providers and holidaymakers were clear that the arrangement was for the appellant acting as agent. The helpful Supreme Court case of SecretHotels2 (which I commented on here) was applied in this case. The main point being that the nature of a supply is to be determined by the construction of the contract – unless it is a ‘sham’ and great weight was given to the terms of Lowcost’s contracts rather than what HMRC often call the “economic reality”. Specifically highlighted to the court was the fact that Lowcost set the prices for the holidays, which HMRC pointed out would be inconsistent with an agency arrangement. The FTT decided that this was outweighed by the actual terms of the contracts.

Consequently, as Lowcost acted as agent (for the providers of the services not the holidaymaker) the Place Of Supply was determined by reference to where the supply was received under the general rule. In this case, this is VAT free when the services were received by principals located outside the UK.

As with all TOMS and agent/principal matters it really does pay to obtain professional advice.

VAT – Extent of healthcare exemption. Latest from the courts

By Marcus Ward 26 June 2017

In the First Tier Tribunal (FTT) the case of The Learning Centre (Romford) Ltd (TLC) the exemption for healthcare was considered.

Background

The appellant provides day-care to vulnerable adults with learning difficulties (referred to as students). Both directors have relevant qualifications and a great deal of experience in providing the care which the company provides. The taxpayer provided their students with education, activities, and entertainment during working hours Monday to Friday, providing meals and, where required, assistance with eating, administering medication, and personal care. They also provided the transport to bring the students to and from their homes and the facility. The education provided was geared towards teaching the students independent living.

While HMRC accepted that what the appellant provided was ‘welfare services’ within the meaning of the Value Added Tax Act 1994, Schedule 9, Group 7 Item 9 and Note (6), exemption applied only where it was supplied by a specified type of entity. Those entities are:

1) A charity

2) A state-regulated private welfare institution or agency, or

3) A public body.

The appellant was not a charity: it was a company which ran the business for profit. As a privately owned company, it was not a public body either. The only possible category for the appellant was ‘a state-regulated private welfare institution or agency’ and HMRC did not accept that the appellant fell within that category. Day-care is not regulated in England and as a consequence HMRC decided it is not covered by the exemption.

Decision

The FTT found for the appellant. It was noted that day-care is regulated in Scotland and it would be a breach of fiscal neutrality if the VAT treatment of day-care was different North and South of the border. TLC could rely on the direct effect of the Principal VAT Directive and, as a consequence, could treat its supplies as exempt and deregister from VAT.

Commentary

It was a logical decision, however, logic does not always play a part in VAT…. It sought to level a playing field that was far from that. If the decision had been in favour of HMRC the VAT treatment would have been different if the supply had been made:

in other areas of the UK
by the Local Authority
by a charity

contrary to EC law.

There are many businesses which provide similar services and it is imperative that they review their VAT position immediately. We can assist with this.

VAT – Business Entertainment Flowchart. What input tax may I recover?

By Marcus Ward 26 June 2017

VAT – Recovery of input tax incurred on entertainment

One of the most common questions asked on “day-to-day” VAT is whether input tax incurred on entertainment is claimable. The answer to this seemingly straightforward question has become increasingly complex as a result of; HMRC policy, EC involvement and case law.

Different rules apply to entertaining; clients, contacts, staff, partners and directors depending on the circumstances. It seems reasonable to treat entertaining costs as a valid business expense. After all, a business, amongst other things, aims to increase sales and reduce costs as a result of these meetings. However, HMRC sees things differently and there is a general block on business entertainment. It seems like HMRC does not like watching people enjoying themselves at the government’s expense!

If, like me, you think in pictures, then a flowchart may be useful for deciding whether to claim entertainment VAT. It covers all scenarios, but if you have a unique set of circumstances or require assistance with some of the definitions, please contact me.

We have recently carried out a series of presentations, which, amongst other subjects, covered business entertainment. Should you require VAT training or presentations, don’t forget our comprehensive service here which can be tailored to your needs.

VAT -Business Entertainment Flowchart

Download here: VAT Business Entertainment Input tax recovery flowchart