ADR agreements do not always give taxpayers certainty – Serpentine Trust case

The First Tier Tribunal decision in the case of The Serpentine Trust Ltd (‘TST’)  illustrates how an Alternative Dispute Resolution (ADR) agreement with HMRC may not necessarily give certainty to a taxpayer even though both parties have agreed its terms.

TST ran five supporter schemes under which supporters made payments in return for a range of benefits. During the course of a VAT inspection, HMRC identified that in respect of four of the schemes, TST was not accounting for VAT, but was treating the payments made by the supporters as donations. The fifth scheme (the Council Scheme) was subject to a ruling from HMRC in 2003 which allowed that if TST identified a value for the benefits, on which it accounted for VAT, and a value for a donation, the donation element was treated as outside the scope of VAT.

A series of ADR meetings were held to seek agreement on the points in dispute. All points were agreed, including the treatment of supporter schemes with effect from 1 April 2013. The agreement between HMRC and TST in relation to supported schemes stated “From 1/4/13 where the value of the ‘benefits’ package for supporter schemes is identified and this is clearly stated (both in the application forms and on the website), this will be treated as the consideration. Any sums paid above the price charged for the benefits package is to be treated as a donation.”

For periods before 1 April 2013, HMRC assessed TST for VAT on total supporter scheme income and TST appealed to the First Tier Tribunal (‘FTT’). “The FTT upheld the assessment, finding that TST was making a standard rated supply of the right to take part in various events organised by TST in return for the total payment. However, in making her decision, the Judge expressed surprise that a mere change of wording in the Taxpayer’s literature was sufficient to mean that after 1 April 2013 the VAT liability was confined only to the portion of the income which corresponded to the benefits supplied to Scheme and commented that:

“The Trust is of course entitled to rely on the clearances it has been given by HMRC, even when they are, as they appear to be in this case, wrong in law. I express the view that it is inappropriate for HMRC to give private rulings inconsistent with their published position.”

The reference to HMRC’s published position was a reference Notice 701/1 in which HMRC state that it must be clear to supporters that the benefits of membership can be purchased by paying only the minimum payment (benefit value).

Three months after the first FTT decision, HMRC withdrew the Council Scheme ruling allowing TST to account for VAT only on the benefits value, and seven months after the decision, HMRC wrote to TST advising that TST may have ‘misunderstood’ the ADR agreement. Following a period of further correspondence, HMRC issued an assessment to TST in relation to its treatment of supporter schemes from 1 April 2013, stating that VAT should be charged on all payments received from members of the Supporter Schemes and not just the amount deemed to cover the value of the benefits. TST therefore appealed again to the FTT again on the basis that it had a written agreement with HMRC.

It was agreed in the second Tribunal that there were five main issues to be decided by the FTT:

  1. whether the FTT had jurisdiction to rule on the issue;
  2. whether TST or HMRC had correctly interpreted the “Supporter Schemes” paragraph in the ADR meeting note;
  3. whether HMRC and TST had a contract and, if so, whether there was legal agreement between the parties, or the omission of a central term so as to void the contract;
  4. if there had been a contract, whether HMRC had made a unilateral mistake; and
  5. if there was no mistake, whether HMRC had the power to make such a contract.

It was agreed that the FTT had jurisdiction to hear the appeal, and therefore had to decide the issues set out above. The FTT found that the terms of the ADR agreement for the treatment of supporter schemes from 1 April 2013 was unambiguous and therefore TST was bound to account for VAT only on the value ascribed to the benefits.  It rejected HMRC’s arguments and found that the agreement constituted a binding contract intended to create a legal relationship between the parties. There was no unilateral mistake by HMRC in consenting to the agreement and so the contract was not void.

In considering the evidence and the facts, the FTT found that:

  1. HMRC had adopted the approach in the Council Scheme ruling in relation to at least some other charities;
  2. HMRC withdrew those rulings prospectively after the first Serpentine tribunal case was published; and
  3. TST’s adviser genuinely believed that HMRC operated a practice of requiring only that the benefits provided to members of supporter schemes be quantified and communicated to those members, and did not require those benefits to be made separately available for purchase.

The FTT also determined that the evidence of the HMRC mediator should be set aside as being ‘unreliable’.

However, and unfortunately for TST, on point 5 the FTT found what HMRC had agreed was wrong as a matter of law. In order for VAT to apply only to the benefit value, it must be clear to supporters that they can purchase the benefits separately.  HMRC could not depart from applying the correct taxing provisions without direction from parliament or an extra statutory concession and the ADR agreement was therefore ultra vires.

This was a frustrating outcome for TST especially as it was clear that HMRC had been applying the terms agreed at ADR to the Council Scheme and to other taxpayers for several years. The only remedy for TST now would be to take judicial review proceedings against HMRC, on the basis that it had a legitimate expectation that it could rely on the ADR agreement. JR proceedings are however expensive, and it is notoriously difficult to obtain a favourable ruling against the state.

The case shows that the ADR process is not a failsafe, and raises the question of how much certainty a ruling from HMRC actually gives to taxpayers. It is concerning that the evidence of the HMRC mediator was set aside as unreliable, and therefore one of the points to take forward when considering an ADR process is the use of an independent mediator with the necessary VAT expertise.

Any organisations accounting for VAT on a similar basis to the TST ADR agreement, should review the position and take action accordingly.

Socrates Socratous is the Director of SOC VAT Consultants and gave evidence on behalf of TST.

An earlier case (in 2014) involving the charity concerned the VAT treatment of ‘donations’ made by four friends schemes to the Serpentine Gallery, which provided the donors with benefits from the gallery. The FTT decided that the ‘donations’ were consideration for the standard rated supplies of the benefits. Applying Tron Theatre, the full amount paid for the benefits was the taxable amount subject to VAT, irrespective of their value and any ‘donative intent’. The tribunal rejected, inter alia, the trust’s argument that the supplies were multiple, not composite, and accordingly zero-rated or exempt in part: it is arguable that it is this element of the decision which is most open to challenge. A detailed summary by former CTG Technical Adviser Peter Jenkins, can be read here.

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