Eynsham Cricket Club VAT case – Another update

I wrote a commentary on the curious case of the CASC that claimed it was a charity in order to benefit from charitable VAT relief on new building works.  That related to the First tier Tribunal decision in Eynsham Cricket Club.  This has now returned to the courts in the form of an Upper Tribunal decision (UKUT0286).  The tortuous result is that the Club lost its appeal.  The interesting aspect is the route to that result.

*Update* The Court of Appeal has upheld the Upper Tribunal decision following a further appeal by Eynsham.

The First Tribunal opined that a CASC can be regarded as a charity for the purpose of the VAT relief, as long as it would otherwise be charitable.  This was because of a gap in the law (whether deliberate or otherwise) that caused the CASC’s lack of charitable status for Charity Commission purposes to be irrelevant to charitable reliefs (raising the spectre of a very light touch supervision regime but with all the plusses of being equivalent to a charity).  But, said that tribunal, Eynsham’s objects were not charitable, so it lost the case.

Then HMRC conceded that the tribunal was wrong on that last point, and that the CASC in this case had charitable objects. This was a clever device for getting the case back into court to argue the key point, which was whether the ‘gap’ mentioned above even existed.  So, we now have an Upper Tribunal decision on whether a sports body can have the benefits of being a CASC and also the VAT benefits of being a charity, or whether the law says you must be one or the other; not both.

The Upper Tribunal looked at legal history dating back to Queen Anne, and combined this with up to date ‘purposive’ interpretations, and decided that the clear implication in the law was that there was to be a clear choice.  Either a body could have regulation-lite, and be a CASC, or it could have the full-fat regime of charitable status.  It could not have its charity cake and eat it as a CASC.

Accordingly, Eynsham again lost the appeal, though for more logical reasons.

While they were sitting, the Upper Tribunal also considered arguments around whether the new building was to be used as a village hall.  HMRC tried to claw back some of the ground lost in Scottish decisions around club members being given preferential treatment, and how these members were not also members of the local community, and so on.  Happily, the tribunal did not accept these old fashioned arguments about the definition of a village hall.  Whereas this part of the decision is obiter, because the decisive point related to the CASC’s status, it is nonetheless helpful to have such a thorough analysis to add to the favourable (and altogether more rational) interpretation of the meaning of ‘village hall’.

The decision is not for the faint hearted, but is worth reading.

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