Some charities may supply services (for a charge, or in consideration of a subsidy received from a third party funder) to persons who are generally thought to live abroad. Irrespective of the specific circumstances (which, if involving asylum seekers, has been subject to a specific HMRC interpretation for over twenty years) it may be that the VAT liability of the service is dependent on securing evidence that the recipient of the service does actually live abroad (that is, since January 2021, outside the UK, and prior to that, outside the EU). Simple assumptions based on ‘common sense’ would be insufficient to give the required evidence of the usual residence of the customer.
The Upper Tribunal decision in Mandarin Consulting (UKUT0292) analyses the requirements in a particularly helpful way. There were several issues, which can be summarised as follows:
- Do Implementing Regulations (which prescribe required evidence) provide the comprehensive set of rules, or can a supplier who lacks the prescribed evidence refer to other evidence to fulfil the basic legal requirement (that the regulations merely codify)?
- Does the required evidence need to be in the supplier’s hands at the time of supply, or can they obtain the evidence after making the supply?
- Can more generic evidence, drawn from a sample of the customers, stand as general proof of a broadly applicable place of supply?
The tribunal concluded that implementing regulations were not the last word on the subject, and that, theoretically at least, other evidence could prove compliance with the basic rule, however challenging that proposition might appear. The evidence need not be in the supplier’s possession at the time of supply however desirable that might be in almost all cases. Reliable evidence relating to the position could be obtained later as long as it clearly related back to the time the supply was made. Possession of that evidence could arise later (albeit, of course, the practical accounting for the supply could only be settled as potentially a supply outside the UK after that evidence had been gathered).
But, on the third point, generalisations were insufficient. A generic principle had to apply to all possible cases, and not merely to most (nor to a significant majority). In the case of Mandarin, the issue was whether Chinese students still resided with their parents at home, and were not resident in the EU. Whilst the tribunal accepted that this would be the case for the large majority of the customers (and might be true for all), there was a possibility of students having formed permanent social relationships with persons in the EU, and were now residing with them, and not with their parents. That possibility alone made a generic proof of residence in a third country impossible to establish. The result was that, absent case by case evidence as set out in the implementing regulation, the practical proof of place of supply was impossible. The supply therefore defaulted to the UK.
Charities may see many of these points as helpful in their own case, though the message remains that gathering the generally required evidence is a top priority.
Graham Elliott is CTG’s Technical Adviser