VAT case relating to ‘single supply’ and zero rated printed material

The Upper Tribunal decision in Metropolitan International Schools Limited (UKUT0431) deals, among other things, with the issue of determining the VAT treatment of a single indivisible supply where there appears to be more than one element.

This decision is interesting in that it overturned the First-Tier Tribunal’s decision on this point, but not owing to a failure to deploy the correct legal tests, but rather a perceived failure to weigh up the factual position as fully (or accurately) as it ought.  This therefore is one of those rare cases where the finding of fact is effectively disputed by the Upper Tribunal, despite the First Tribunal being ostensibly the forum in which facts are irremediably established.

*Update*: Metropolitan International Schools Ltd was granted permission to appeal on the sole point that the UT misinterpreted the scope of section 84(10) of the  VATA. The Court of Appeal has dismissed this appeal.

The issue was whether this (commercial) college made standard rated supplies of ‘education’ (not being an eligible body for the exemption) or zero rated supplies of printed texts and manuals.  The First Tribunal approached this by looking at what actually was provided, and held that, as things turned out, almost all of what was provided were the texts.  The students sat exams with other providers, so the supply appeared to the First Tribunal as being restricted to an overwhelmingly print-oriented supply.

The Upper Tribunal did not believe that this took sufficient account of what the supplier offered or what it held out as the nature of the offer.  It looked at the components that were delivered without considering, sufficiently, what a customer thought they would get from their purchase.  Even though the education was overwhelmingly delivered through printed material, the customer was offered access to a tutor, to some internet interaction, and some other small enhancements.  The Upper Tribunal thought that this shifted the perspective onto a supply of ‘education’ notwithstanding that the main delivery channel of this, by far, was printed material.  The failure to consider an objective customer’s ‘take’ on his purchase was a major omission in the First Tribunal’s reasoning, so HMRC’s appeal was allowed.

The lesson from this is that reliance on the predominant characteristic of a supply being a relieved category (whether zero rated, reduced rated, or exempt) where there are standard rated elements, is risky.  Unless one can sustain the view that those elements merely support the customer’s enjoyment of the main relieved category, the point is hard to win.  In this case, the extra elements did not really help the student read the books.  They were minor in extent, but they characterised the supply as being something different.  Although the printed material was of overwhelming physical value in the mix, it was this that supported the wider aim of ‘education’, not the other way around.  This is more the approach taken in the old case of College of Estate Management (though in that case the over-arching supply was exempt).

Charities that have relied on the First Tribunal’s decision in this case will need now to take advice.  Charities should approach any case of relying on a relief for a complex supply with considerable care and take advice.

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