Tag Archives: tribunal

Latest from the courts – More on VAT on food and drink

By   14 March 2016
0

OK, so most people are aware of the Jaffa Cake case and the appeals relating to smoothies and the VAT oddities that are thrown up by chocolate foods and fruit drinks.  The latest in what many view to be a ridiculous situation is the Nestlé UK Limited case concerning Nesquik powder.

Nestlé appealed against HMRC’s decision not to repay over £4 million in VAT accounted for on the sale of strawberry and banana flavoured Nesquik powder.  Nestlé formed the view that the powder which is used to flavour milk, should be zero rated in the same way that the chocolate flavoured powder and ready to drink milk based drinks it produces are.

The First Tier Tribunal found in favour of HMRC and decided that the fruit flavoured powders were a “powder for the preparation of beverages” covered by the exception from zero-rating for such products and that they were not covered by the items overriding the exceptions to zero-rating, so they remained standard-rated; hence no retrospective claim for overdeclared output tax.

So, there is differing VAT treatment depending on what flavour the Nesquik powders are, and between ready to drink products and ones where the customer has to mix them his/herself.

Fortunately, VAT is completely logical and there are simply no traps for the unwary!  My own view is that the legislation regarding food and drink is so convoluted and complex that it needs a complete rewriting.  I appreciate that case law has caused the current situation, and this has not been helped by political tinkering (pasty tax anyone?) but clarity is long overdue.  I strongly suggest that this is not the last food based case, and of course we have had them going back to the inception of VAT.  Now, this chocolate hot cross bun……

VAT – Latest from the courts – Holding companies management charges. Norseman Gold plc

By   15 February 2016
0

The Norseman Gold plc case considered whether a holding company could recover input tax incurred on certain costs.  This is turn depended on whether the holding company was making taxable supplies. Specifically; management charges to non VAT-grouped subsidiary companies.

The Upper Tribunal has recently released its decision. It upheld the First-tier Tribunal’s decision which confirmed that, although the management services in this case could have been considered as economic activities for VAT purposes, there was insufficient evidence to demonstrate that Norseman was making, or intended to make, taxable supplies when the input tax was reclaimed. The UT found that “…vague and general intention that payment would be made …” for management services was insufficient to show a connection between the VAT incurred and taxable supplies.  Consequently, HMRC’s assessments to recover the relevant input tax were upheld.

Importance

This case emphasises the importance of holding companies having appropriate processes and ensuring that proper documentation is in place to evidence, not only the intention to make taxable supplies of management charges, but that those charges were actually made to subsidiaries.  It is also important to ensure that actual management of the subsidiaries take place, and a record of this management is retained.  Simply making a charge to subsidiaries is insufficient if no services are actually supplied as this will not constitute an economic activity.

Often significant costs can be incurred by a holding company in cases such as acquisitions and restructuring.  It is important that these costs are incurred by, and invoiced to the appropriate entity in order for the VAT on them to be recovered.  Consideration must be given to how the input tax is recovered before it is incurred and the appropriate structure put in place.

Please contact me should you require further information on this point or would like to discuss the matter further.

VAT Latest from the courts; can HMRC impose a higher value on a supply?

By   9 February 2016
0

VAT Latest from the courts – Whether Open Market Value applies

HMRC has the power to direct that Open Market Value (OMV) is applied to the value of certain supplies between connected parties – VAT Act 1994 Schedule 6, paragraph 1. This power is used to avoid situations where one party is unable to recover all of the input tax incurred on purchases. Usually, the direction is used when one party purchase goods and services at OMV, recovers full input tax and then supplies these goods and services to a connected party at a lower price, thus reducing the amount of input tax lost by the recipient party.

HMRC deemed this to be the position in Temple Retail Limited and Temple Finance Limited (TC04840) where “TRL” purchased goods and services and resupplied them to “TFL”.  TFL was a company that was unable to recover all of its input tax as a result of partial exemption (it made supplies of exempt credit as it sold goods to consumers via HP agreements).  HMRC was concerned that TRL and TFL had an opportunity to improve their aggregate input tax recovery by charging fees for certain services below OMV and consequently issued an OMV direction.

HMRC later issued TRL with assessments for under-declared output tax for not complying with the direction and this, inter alia, was the subject of the appeal by the taxpayer.

The FT Tribunal was satisfied that the majority of TRL’s fees charged to TFL were charged at OMV. However, The Tribunal decided that advertising services were not calculated at OMV and held that these services should be recalculated by reference to a method which it specified.

The case is a useful reminder of HMRC’s powers to substitute a stated value of a supply with what it believes to be OMV between connected parties. Business which are connected and provide exempt services need to be aware of the position and ensure that relevant supplies do not fall foul of the OMV direction rules.  Care should be taken to document the values used and the reasons why they reflect the economic reality of the position in order to avoid a challenge from HMRC.  OMV is often an area that creates differences of opinion and therefore disputes.  Any structures which set out to deliberately reduce the value of supplies are likely to result in more serious actions from HMRC.

A definition of what constitutes connected parties is found here

If the case sets off any warning bells, please contact us as soon as possible.

Monthly VAT Round-Up

By   29 January 2016
0

We produce a free monthly email update on all VAT things great and small. It covers events for the last month and flags up significant changes as a result of changes to legislation, HMRC announcements and case law. It also looks at specific VAT issues that may affect a business.

Please contact us you would like to subscribe.

marcus.ward@consultant.com

07748 117935

Twitter: @mw_vat

Linked In; Marcus Ward

Linked In Group – Marcus Ward Consultancy VAT

VAT – Zero rating of charitable building; latest from the courts

By   25 January 2016
0

A recent case at the Upper Tribunal (UT): Wakefield College here considered whether certain use of the property disqualified it from zero rating.

Background

In order to qualify for zero rating a building it has to be used for “relevant charitable purpose”

This means that it is used otherwise than in the course or furtherance of a business. In broad terms, where a charity has a building constructed which it can show it will use for wholly non business purposes then the construction work will be zero rated by the contractor. This is the case even if there is a small amount of business activity in the building as long as these can be shown to be insignificant (which is taken to be less than 5% of the activities in the whole building) This so called de-minimis of 5% can be of use to a charity. In order for zero rating to apply the charity must issue a certificate to the builder stating the building will be used for non-business purposes.

Although the UT supported HMRC’s appeal against the F-tT decision there was an interesting comment made by the UT.  The fact that students paid towards the cost of their courses (albeit subsidised) meant that business supplies were made, and the quantum of these fees exceeded the 5% de minimis meant that the construction works were standard rated. This decision was hardly surprising, however, a comment made by the Tribunal chairman The Honourable Mr Justice Barling Judge Colin Bishopp may provide hope for charities in a similar position to the appellant: he stated that it believed that the relevant legislation should be reconsidered, suggesting that;

“… it cannot be impossible to relieve charities of an unintended tax burden while at the same time protecting commercial organisations from unfair competition and preventing abuse …”.

 In my view, it is worth considering the summing up in its entirety as it helpfully summarises the current position and provides some much sought after common sense in this matter:

 “We cannot leave this appeal without expressing some disquiet that it should have reached us at all. It is common ground that the College is a charity, and that the bulk of its income is derived from public funds. Because that public funding does not cover all of its costs it is compelled to seek income from other sources; but its doing so does not alter the fact that it remains a charity providing education for young people. If, by careful management or good fortune, it can earn its further income in one way rather than another, or can keep the extent of the income earned in particular ways below an arbitrary threshold, it can escape a tax burden on the construction of a building intended for its charitable purpose, but if it is unable to do so, even to a trivial extent, it is compelled to suffer not some but all of that tax burden. We think it unlikely that Parliament intended such a capricious system. We consider it unlikely, too, that Parliament would consider it a sensible use of public money for the parties to litigate this dispute twice before the FTT and now twice before this tribunal. We do not blame the parties; the College is obliged to maximise the resources available to it for the pursuit of its charitable activities, just as HMRC are obliged to collect tax which is due. Rather, we think the legislation should be reconsidered. It cannot be impossible to relieve 16 charities of an unintended tax burden while at the same time protecting commercial organisations from unfair competition and preventing abuse”.

 Action

If any charities, or charity clients have been denied zero rating on a building project, it will be worthwhile monitoring this development.  Please contact us if you require further information.

VAT Flat Rate Scheme (FRS)– New judgement on retrospective application

By   14 January 2016
0

Latest from the courts

In the recent case of KDT Management Ltd an appeal against a decision by HMRC not to allow the appellant to retrospectively apply the percentage of turnover it says was appropriate to its business under the FRS instead of the one it says it mistakenly chose was considered.

HMRC issued an assessment to recover VAT which was alleged to have been omitted from the appellant’s returns because it did not apply certain increases of rate to its turnover under the FRS of accounting for VAT.

It was also an appeal against a decision by HMRC not to allow the appellant to retrospectively apply the percentage of turnover it says was appropriate to its business under the FRS instead of the one it says it mistakenly chose.

The decision was that the appeal against the assessments to VAT and interest were upheld.  The appeal against the decision not to backdate was also upheld and the decision was cancelled.

Please contact us if you have been in dispute over the rate applicable on a FRS, or if you think you may be using an inappropriate percentage. This is likely to mainly affect small businesses.

Details of the FRS here

VAT – The Default Surcharge. What is it, is it fair and will the regime change?

By   1 December 2015
0

What is the Default Surcharge? 

Default Surcharge is a civil penalty to encourage businesses to submit their VAT returns and pay the tax due on time.

When will a Default Surcharge be issued?

A business is in default if it sends in its VAT return and or the VAT due late. No surcharge is issued the first time a business is late but a warning (a Surcharge Liability Notice) is issued. Subsequent defaults within the following twelve months (the “surcharge period”) may result in a surcharge assessment. Each time that a default occurs the surcharge period will be extended. There is no liability to a surcharge if a nil or repayment return is submitted late, or the VAT due is paid on time but the return is submitted late (although a default is still recorded).

How much is the surcharge?

The surcharge is calculated as a percentage of the VAT that is unpaid at the due date. If no return is submitted the amount of VAT due will be assessed and the surcharge based on that amount. The rate is set at 2 per cent for the first default following the Surcharge Liability Notice, and rises to 5 per cent, 10 per cent and 15 per cent for subsequent defaults within the surcharge period.  A surcharge assessment is not issued at the 2 per cent and 5 per cent rates if it is calculated at less than £200 but a default is still recorded and the surcharge period extended. At the 10 per cent and 15 per cent the surcharge will be the greater of the calculated amount or £30.

Specific issues

The default surcharge can be particularly swingeing for a fast growing company. Let’s say that a small company grows quickly. In the early days the administration was rather haphazard, as is often the case, and a number of returns and payments were submitted late. Fast forward and the turnover, and the VAT payable, has grown significantly. Being late at this time means that the amount of default surcharge is considerably higher than when the original default which created the surcharge took place.  This leads us onto whether the surcharge is proportionate.

A business with cashflow difficulties may well ask whether it should be penalised by HMRC for having those difficulties; which of course will add to the problem.

Proportionality

The existing, long-standing default surcharge regime has always had issues with the principle of proportionality.  The regime has regularly been challenged in the Courts.

Is it proportionate that a same penalty is applied for a payment which is one day late and one which is one year late? This is a matter which has concerned both HMRC and the Courts for a number of years.

In the Upper Tribunal case of Total Technology (Engineering) Ltd the Judge concluded that it was possible for an individual surcharge to be disproportionate, but that the system as a whole was not fundamentally flawed. It is also worth noting that in In Equoland judgment the judge stated that a penalty which is automatic and does not take into account the circumstances is at the least tending towards being disproportionate.  The default surcharge is automatic and it is one of the few penalties that cannot be mitigated in any circumstances.

Defence against a surcharge

In order to have a surcharge withdrawn it is necessary to demonstrate that a business had a reasonable excuse for the default.  

This is a subject of an article on its own.  Certain factors, like relaying on a third party are not accepted as a reasonable excuse. HMRC state that a business will not be in default if they, or the independent tribunal, agree that there is a reasonable excuse for failing to submit a VAT Return and/or payment on time.

There is no legal definition of reasonable excuse but HMRC will look closely at the circumstances that led to the default.

If the circumstance that led to the default were unforeseen and inescapable and a business is able to show that its conduct was that of a conscientious person who accepted the need to comply with VAT requirements, then it may amount to a reasonable excuse.

What sort of circumstances might count as reasonable excuse?

HMRC provide guidelines on circumstances where there might be a reasonable excuse for failing to submit a VAT Return and/or payment on time. These include:

  • computer breakdown
  • illness
  • loss of key personnel
  • unexpected cash crisis – where funds are unavailable to pay your tax due following the sudden reduction or withdrawal of overdraft facilities, sudden non-payment by a normally reliable customer, insolvency of a large customer, fraud or burglary. A simple lack of money is unlikely to be accepted as a reasonable excuse.
  • loss of records

Latest

A recent discussion document sought views from businesses and individuals on potential improvements to how HMRC applies penalties (including the default surcharge) for failing to pay what is owed or to meet deadlines for returns or registration.

HMRC is considering whether and how it should differentiate between those who deliberately and persistently fail to meet administrative deadlines or to pay what they should on time, and those who make occasional and genuine errors for which other responses might be more appropriate.

In the document HMRC highlight two issues with the current VAT default surcharge regime. The first is the concern that while the absence of penalty for the initial offence in a 12 month period gives business the chance to get processes right, some customers simply ignore this warning.

The second concern is the issue of proportionality which fails to distinguish between payments that are one or two days late or many months late.

In my view, it is likely that in the near future we will hear proposals for the system being amended.  I think we may anticipate the introduction of mitigation and suspension.

VAT Compound Interest – Latest

By   24 November 2015
0

Proposed introduction of a new tax.

The Littlewoods case is slowly making its way through the court system with the CJEU ruling that there is a right to the taxpayer of adequate indemnity in respect of tax incorrectly collected via a mistake of law.  There are myriad claims to which this will apply, especially “Fleming” claims where they covered a significant period of time a number of years ago.

HMRC has now applied to Supreme Court’s decision for permission to appeal the decision and we expect the Supreme Court’s verdict within the next month.

HMRC appear very concerned that it will ultimately be required to pay large amounts of interest to taxpayers who have suffered as a result of HMRC applying the relevant law incorrectly.  Consequently, it has announced that the Summer Finance Bill 2015 will impose a 45% corporation tax charge on compound interest.  There will be no right of set off or deduction for other losses. HMRC will withhold the corporation tax from any payment of interest made. This will take effect on 21 October 2015 (although the relevant legislation will not become law until 2016 indicating that HMRC is indeed running scared).

It is understood that there are a number of parties currently working on ways to challenge the legality of the proposed legislation.

Action

Claims already submitted

No immediate action is required, although it may be beneficial to review the basis of the claim, how it was made and what the status of it is currently.

New claims

For businesses which have received repayments due to HMRC error, it may be worthwhile reviewing the position to determine whether a claim for compound interest is appropriate and if so, to make a claim as soon as possible.  We would, of course, be happy to advise on this and assist where necessary.

The penalty regime……the dark side of VAT

By   12 November 2015
1

VAT Penalties

I have made a lot of references to penalties in other articles over the years. So I thought it would be a good idea to have a closer look; what are they, when are they levied, rights of appeal, and importantly how much could they cost if a business gets it wrong?

Overview

Broadly, a penalty is levied if the incorrect amount of VAT is made, either by understating output tax due, or overclaiming input tax, or accepting an assessment which is known to be too low.

Amount of penalty

HMRC detail three categories of inaccuracy. These are significant, as each has its own range of penalty percentages. If an error is found to fall within a lower band, then a lower penalty rate will apply. Where the taxpayer has taken ‘reasonable care,’ even though an error has been made, then no penalty will apply.

  • An error, when reasonable care not taken: 30%;
  • An error which is deliberate, but not concealed: 70%;
  • An error, which is deliberate and concealed: 100%.

Reasonable care

There is no definition of ‘reasonable care’. However, HMRC have said that they would not expect the same level of knowledge or expertise from a self-employed person, as from a large multi-national.

HMRC expect that, where an issue is unclear, advice is sought, and a record maintained of that advice. They also expect that, where an error is made, it is adjusted, and HMRC notified promptly. They have specifically stated that merely to adjust a return will not constitute a full disclosure of an error. Therefore a penalty may still be applicable.

What the penalty is based on

The amount of the penalty is calculated by applying the appropriate penalty rate (above) to the ‘Potential Lost Revenue’ or PLR. This is essentially the additional amount of VAT due or payable, as a result of the inaccuracy, or the failure to notify an under-assessment. Special rules apply where there are a number of errors, and they fall into different penalty bands.

Defending a penalty 

The percentage penalty may be reduced by a range of ‘defences:’

– Telling; this includes admitting the document was inaccurate, or that there was an under-assessment, disclosing the inaccuracy in full, and explaining how and why the inaccuracies arose;

– Helping; this includes giving reasonable help in quantifying the inaccuracy, giving positive assistance rather than passive acceptance, actively engaging in work required to quantify the inaccuracy, and volunteering any relevant information;

– Giving Access; this includes providing documents, granting requests for information, allowing access to records and other documents.

Further, where there is an ‘unprompted disclosure’ of the error, HMRC have power to reduce the penalty further. This measure is designed to encourage businesses to review their own VAT returns.

A disclosure is unprompted if it is made at a time when a person had no reason to believe that HMRC have discovered or are about to discover the inaccuracy. The disclosure will be treated as unprompted even if at the time it is made, the full extent of the error is not known, as long as fuller details are provided within a reasonable time.

HMRC have included a provision whereby a penalty can be suspended for up to two years. This will occur for a careless inaccuracy, not a deliberate inaccuracy. HMRC will consider suspension of a penalty where, given the imposition of certain conditions, the business will improve its accuracy. The aim is to improve future compliance, and encourage businesses which genuinely seek to fulfil their obligations.

Appealing a penalty 

HMRC have an internal reconsideration procedure, where a business should apply to in the first instance. If the outcome is not satisfactory, the business can pursue an appeal to the First Tier Tribunal. A business can appeal on the grounds of; whether a penalty is applicable, the amount of the penalty, a decision not to suspend a penalty, and the conditions for suspension.

The normal time limit for penalties to four years. Additionally, where there is deliberate action to evade VAT, a 20 year limit applies. In particular, this applies to a loss of VAT which arises as a result of a deliberate inaccuracy in a document submitted by that person.

These are just the penalties for making “errors” on VAT returns. HMRC have plenty more for anything from late registration to issuing the wrong paperwork.

Assistance

My advice is always to check on all aspects of a penalty and seek assistance for grounds to challenge a decision to levy a penalty. We have a very high success rate in defending businesses against inappropriate penalties.  It is always worth running a penalty past us.

VAT – Trading in Bitcoin ruled exempt by ECJ

By   22 October 2015
0

VAT – Trading in Bitcoin ruled exempt by ECJ

Further to my article of 13 March 2014 here

The European Court of Justice (ECJ), the highest court of appeal for EC matters, has ruled that trading in digital, such as bitcoin, is exempt. this is on the basis that they are a method of payment with no intrinsic value, like goods or commodities.  They are therefore covered by the exemption relating to “currency, bank notes and coins used as legal tender” – (Article 135 (1) of the VAT directive). 

This confirms that the UK authority’s approach is correct and that the VAT treatment applied in Germany, Poland and Sweden where those authorities treated the relevant transactions as subject to VAT, is erroneous.

This is good news for the UK as it is a big (if not the biggest) player in the bitcoin sector.