Towards Zero Foundation Tribunal Decision

The First-tier Tribunal’s decision in respect of the non-profit organisation, Towards Zero Foundation (TC08547), provides a further welcome boost to the interpretation of activities as being business, where non-profit bodies make charges for some of their activities, but do not charge for everything.

It has long been a bone of contention between HMRC and charities (and other non-profits) whether the VAT costs of activities where charges are made, in certain circumstances but not in others, should be fully allowable, where the supplies in question are taxable. HMRC views any specific examples of activities undertaken for zero consideration as being evidence of non-business activities, whereas the taxpayer often interprets the situation as involving an indivisible holistic activity where certain activities which are not charged for nevertheless fall within the ambit of the overarching business model. HMRC argues for partial disallowance of input tax, whereas the taxpayer argues for full allowance where the supplies are taxable.

In this particular case, the Foundation provides vehicle crash tests. Its operational model is to select vehicles that it suspects fall below good safety standards, and subjects these to crash tests without charging any other party for that activity. It then publishes the crash test results, particularly on social media, again for no charge. As a result of customer pressure generated by this publicity, manufacturers typically improve the safety performance of the vehicles. In order for the manufacturer to prove that the designs have been modified, they pay the Foundation to carry out the same crash tests and publish the updated results. They may pay for further tests thereafter. Approximately 60% of tests attract a charge in this way, and 40% are the initial tests which are done without charge, (but these proportions did not affect the outcome).

The tribunal agreed that the tests for which charges were made would never have arisen where it not for the initial tests for which no charges were made. Those initial tests therefore feed directly into the business model which generates taxable income. The activities are indistinguishable, as all of the costs relate to crash tests and publishing the results. The tribunal accepted, therefore, that the apparently free activity was not essentially charitable, in the sense that it was done for nothing, but was business-like, in the sense that it generated an ongoing business. Irrespective of the non-profit purposes of the Foundation, this was a cohesive and indivisible business model, which gave rise to taxable supplies. All of the costs had a direct and immediate link with those taxable supplies. Consequently, all of the VAT on purchases was deductible input tax.

This decision follows quickly on the heels of amendments to HMRC’s input tax manuals in which HMRC argues for its own policy, against the prevailing case law. This latest decision adds to the case law against HMRC’s policy. We can therefore assume that they will appeal the decision, or else should change the policy. In the meantime, charities faced with HMRC challenges to input tax on the basis that any examples of non-charged activity must ipso facto denote non-business activity, should resist HMRC’s challenge.

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