*UPDATE* Eynsham Cricket Club’s appeal to the Upper Tribunal was unsuccessful – read a commentary on the latest developments by Graham Elliott here.
Community Amateur Sports Clubs (‘CASCs’) have been given a limited range of the tax reliefs which charities enjoy, but some are, in HMRC’s view, denied them. This includes the VAT reliefs relating to use of certain purchases for ‘relevant charitable purposes’.
Both heads that define relevant charitable purpose require the purchaser to be a charity. The VAT definition of charity is the same as that for other taxes. A case has been brought by a CASC to the effect that it is a charity for tax purposes. It very nearly succeeded on that point and the decision seems to point towards a basis on which a CASC could achieve qualification. But, as the CASC in question lost the case, it will only be if it appeals that HMRC might succeed in reversing the position and staunching a possible tide of claims.
The case related to Eynsham Cricket Club (TC06047). Its contention was that it had built a new building whose use qualified to be a ‘village hall’, which is one of the two heads relating to relevant charitable use relief. If they could claim to be a ‘charity’ for these purposes, such a definition would allow the zero rate to apply. I will not discuss what the tribunal said about the uses of the building, as it simply followed decisions of more senior courts in the recent past. The interesting point was the argument that a CASC was a charity for these purposes.
The argument was to the effect that a charity can be defined differently for tax compared with its classification for other charity law. The essence is that a body is a charity for tax purposes if established solely for charitable purposes. The question whether that is the case is answered by comparing its position with S2 Charities Act 2011. This directs you elsewhere, towards the kinds of things that are charitable purposes and the public benefit test. It does not direct you as far as S6 Charities Act, which is the bit that says that CASCs are not charities even if they would be deemed so under the other tests.
The point in dispute was whether this S6 ‘spoiler’ applies to the tax definition as well as to the Charity Act definition. The tribunal said that it did not, since the tax law did not refer also to this provision.
That may well be a good decision, but it is curious in the sense the S6 definition uses the Corporation Tax legislation (CTA 2010, Part 13, Chapter 9) to define the excluded category, namely a body that is a CASC under that provision. One would have thought that the point of tying S6 back to the tax definition was to affect the tax treatment of such bodies. There would be no other apparent purpose in denying charitable status. But the law does not say that explicitly.
This might have been good news had the tribunal not decided that the appellant was not established solely for charitable purposes, but had purposes that went wider. That meant it was not a charity for VAT purposes after all. But that does not mean that other CASCs, with narrower objects, would not be charities (as S6 clearly envisages). Of course, in that case the body is likely to be a ‘proper’ charity, and not a CASC.
A further argument, that the law was prejudicial to the interests of CASCs in that the difference between these bodies and charities was not justifiable, was rejected by the tribunal.
The net result was that the VAT relief did not apply, but the twists and turns by which the tribunal reached that conclusion were interesting and may provide ammunition in future cases.