Generally, supplies of insurance and insurance broking are exempt from VAT. However, it is important to look at exactly what is being provided as there is no “blanket” exemption.
The latest First Tier Tribunal case of Riskstop Consulting Limited illustrates the precise tests that must be applied and met in order for exemption to apply.
HMRC has appealed to the Upper Tribunal against the First-Tier Tribunal’s decision in the Associated Newspapers matter. The FTT decided that Associated Newspapers could recover input tax incurred on vouchers given away in its sales promotion schemes.
A previous decision by the FTT that no output tax is due on the vouchers when given away as part of a sales promotion is subject to an appeal and both cases will be heard together this week.
This is likely to have a significant impact on the VAT treatment of vouchers and sales promotion schemes and will be watched with interest by many businesses. The outcome may also affect staff incentive schemes where vouchers are provided.
The interaction between vouchers and VAT has had a turbulent past and the matter is complex. I hope that we obtain some clarity from the courts before too long.
Opting to tax provides a unique situation in the VAT world. It is the sole example of where a supplier can choose to add VAT to a supply….. or not.
VAT free supplies
The sale or letting of a property is, in most cases, exempt by default. However it is possible to apply the option to tax (OTT) to commercial property. This has the result of turning an exempt supply into a taxable supply at the standard rate. (It is not possible to OTT a residential property).
Why opt?
Why would a supplier then deliberately choose to add VAT on a supply?
The only purpose of OTT is to enable the optor to recover or avoid input tax incurred in relation to the relevant land or property. The OTT is a decision solely for the property owner or landlord and the purchaser or tenant is not able to affect the OTT unless specific clauses are included in the lease or purchase contracts. Care should be taken to ensure that existing contracts permit the OTT to be taken. Despite a lot of misleading commentary and confusion, it is worth bearing in mind that the recovery or avoidance of input tax is the sole reason to OTT.
Once made the OTT is usually irrevocable for a 20 year period (although there are circumstances where it may be revisited within six months of it being taken). There are specific rules for circumstances where the optor has previously made exempt supplies of the relevant land or property. In these cases H M Revenue & Customs’ (HMRC) permission must usually be obtained before the option can be made.
Two part process
The OTT is a two part process.
There can be problems in cases where the OTT is taken, but not formally notified.
Disadvantages
The benefit of taking the OTT is the ability to reclaim input tax which would otherwise fall to be irrecoverable. However, one disadvantage is that opting the sale or rent of a property may reduce its marketability as it is likely that entities which are unable to recover VAT would be less inclined to purchase or lease an opted property.
Another is that the payment of VAT by the purchaser may necessitate obtaining additional funding. This may create problems, especially if a VAT charge was not anticipated. Even though, via opting, the VAT charge is usually recoverable, it still has to be funded up front.
Also, an OTT will increase the amount of SDLT payable when a property is sold. This is always an absolute cost.
Transfer Of a Going Concern (TOGC)
I always say that advice should be taken in all property transactions and also in cases of a Transfer of A business as a Going Concern (TOGC). This is doubly important where an opted building is being sold, because TOGC treatment only applies to a sale of property when specific tests are met.
Property transactions are high value and often complex. The cost of getting VAT wrong, or overlooking it can be very swingeing indeed. I have also seen deals being aborted over VAT issues. For these reasons, please seek VAT advice at an early stage of negotiations.
More on our land and property services here
If you can’t pay your VAT bill, please do not put your head in the sand, the problem will not go away. Here are some answers to the most commonly asked VAT payment problems.
Q: I have received a demand notice for payment of VAT. Why?
A: HMRC have not received payment of the VAT liability that is described in the demand notice. You should therefore pay the outstanding debt without delay so as to avoid further recovery action. HMRC take prompt action to recover debts.
Q: I am not able to pay the debt immediately because of a temporary cash-flow problem. What should I do?
A: You should make urgent contact with your bank or your financial adviser to explore means of overcoming these temporary financial difficulties.
Q: I have consulted the bank/financial adviser but they are unable to help. What else can I do?
A: Without further delay contact the Regional Debt Management Unit whose address appears on the demand notice. They may be able to help you by agreeing a brief period in which to pay the debt. They are usually helpful and will consider carefully all practical options for settlement. However, if these do not produce a solution or they do not receive a response to their request for payment, they may, like other creditors, take action to recover the money they are owed.
Q: What is the Default Surcharge?
A: Default Surcharge is a civil penalty to encourage businesses to submit their VAT returns and pay the tax due on time.
Q: When will a Default Surcharge be issued?
A: 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).
Q: How much is it?
A: 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.
Q: What sort of assessments are sent out?
A: An assessment may be issued if a VAT return is not submitted by the due date. The amount may be based on previous returns. If a business does not submit its returns time after time, the assessment value will increase. An officer may also issue an assessment after a visit, if they have found errors in the amount of tax declared on previous returns.
Both types are included in the traders’ debt and are collected in the normal way if they are not paid promptly.
Help
There are a number of schemes available which may help cashflow or possibly reduce the amount of VAT you pay.
Cash Accounting – where you only pay VAT to HMRC when you have received payment from your customer.
Annual Accounting – where you make set monthly payments and make one return a year with an adjusting payment.
Flat Rate Scheme – where you pay a set percentage of your turnover rather than calculating output tax less input tax.
Bad Debt Relief – where you are able to reclaim VAT relief on your bad debts.
Please contact us if VAT payments are proving a problem for your business. Negotiation with HMRC is possible.
The Upper Tribunal has decided In the University Of Cambridge case that costs incurred on running its endowment fund relate to the university’s overall economic activity in general and consequently it is possible to recover an element of it. The full judgement here
This will impact on all charities and similar bodies which have non-business activities that support their business activities.
Please contact us if your charity is in a similar position because if past input tax claims have been restricted as a result of HMRC’s interpretation (which is highly likely) it is possible to make a claim which covers the last four years’ VAT costs.
Upper Tribunal versus High Court
In the recent case of Meena Seddon Settlement which 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.
In Colaingrove Limited the Upper Tribunal (UT) this week was required to decide whether the supply of electricity to a mobile home was an independent supply, or just one element of part of an overall supply of holiday accommodation.
This is a notoriously difficult area of VAT as the recent case of WM Morrison Supermarket Limited (“Morrisons”) demonstrates. In this case disposable barbecues (standard rated) were sold with charcoal (reduced rated when sold independently) and the UT decided that it was not possible to carve out the reduced rated element form the overall supply so the whole supply was standard rated.
In Colaingrove a flat-rate charge was made to holidaymakers who paid it as part of the hire charge for self-catering accommodation in mobile homes. The appellant argued that the electricity charge was separately identifiable and quantifiable and should consequently be treated as a reduced rated (5% rather than 20%) independent supply.
The logic in Morrisons was applied in this case and the UT ruled that the charge for the electricity should properly be included in the price of the standard rated holiday accommodation. The charge should not be split out, so the entire charge for the accommodation was standard rated, including the specified sum charged for the electricity.
The judge acknowledged that this case was not an easy one to decide and that the arguments advanced on behalf of the taxpayer were both powerful and attractive. It would seem likely that an appeal to the Court of Appeal will be made.
This case further illustrates that care must be taken when analysing the VAT treatment of supplies. There is significant case law on this matter, but there still remains a certain overlap and sometimes conflicting opinions. The precise facts of the matter are very important when determining whether supplies are compound or multiple for VAT purposes.
Overview
Whether there is a compound or multiple supply is determined by the tests set out in the Card Protection Plan case, namely; firstly, whether there is a principal element of the supply to which all other parts are ancillary and, secondly, whether, in the eyes of the customer, the ancillary element provides a means of better enjoying the principal element. If the answer to both of these questions is yes, then there is a single supply.
I know that anybody who has ever met me will find it difficult to believe (!) but I have been involved with VAT for over 20 years. So what are some of the things that I have learned in this time? Here are ten of the biggest lessons I’ve learned so far:
On advisers – I will leave the last word to the famous Red Adair (younger readers – ask your parents) “If you think it’s expensive to hire a professional to do the job, wait until you hire an amateur.”
So there you have it – what I’ve learned about VAT in 10 lessons. Make sure you are aware! (Or know a VAT consultant who is!).
In the recent case of VDP Dental Laboratory NV & ors (C-144/13) the ECJ has decided that a Dutch exemption for a supply which is ultra vires in respect of EC VAT legislation does not give a right to input tax deduction via EC legislation. The exemption precludes input VAT recovery, but has the effect of exempting imports and acquisitions into The Netherlands. The ECJ held that a taxable person who is not obliged to charge VAT on the supply of goods because national law (in contravention of Community law) provides for exemption, cannot however, rely on Community law to claim input tax deduction of VAT incurred on purchases incurred in respect of that supply. What this means though is that the exemption in Dutch domestic legislation means that the taxpayer will not be taxed on importations or acquisitions, irrespective of the VAT treatment in the Member State of an EU supplier.
Broadly, this means that a business cannot take advantage of domestic legislation and/or EC law in circumstances where it may benefit.
A discussion document is seeking views by 11 May about potential improvements to how HMRC applies penalties for failing to pay what is owed or to meet deadlines for returns or registration.
As HMRC designs a tax system for the modern, digital world, it wants to ensure that its approach to penalties also keeps up to date with both technology and behavioural science. 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.
HMRC is looking for feedback from individuals and businesses. The purpose of the discussion is to seek views on the policy design and any suitable possible alternatives, before consulting later on a specific proposal for reform.
I look at the main points below and identify where changes to the penalty system are most likely to be made.
The document may be accessed here:
Summary
In terms of Indirect Tax there are two main areas which HMRC is focussing on:
VAT default surcharge – HMRC highlights 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.
Excise regulatory penalties – This also considers proportionality, noting that regulatory failures can lead to very large penalties, because the penalty is fixed as a percentage of the duty. The size of such penalties might be viewed as disproportionate.
The existing, long-standing default surcharge regime has always had issues with the principle of proportionality. The regime has been challenged in the Courts – notably in the Trinity Mirror Plc case (soon to be heard at the UT) where the earlier FTT allowed the appeal against a default surcharge on the grounds of proportionality.
If you would like assistance in making a representation please contact me.