The Supreme Court decision in Frank Smart ought to have clarified that mere receipt of grants that are outside the scope of VAT does not imply any reduction in the input tax recoverable by a trader, as long as the activity generates taxable supplies. Yet HMRC seeks other cases to find gaps in the application of Frank Smart.
Such a case is Newell (TC08149) where HMRC has argued that receipt of outside scope grants to support a biomass fuel business causes the input tax on all the business costs to be apportionable pro rata to the taxable income and outside scope income received. Happily, HMRC failed in distinguishing this from Frank Smart, so it lost its case.
Whereas this was a purely commercial supplier, the case has synergy with cases that can sometimes be made against charities, and is reminiscent of HMRC’s misguided arguments in Will Woodlands. HMRC attempted to use the precedent of Vehicle Control Services as the proposition that mere receipt of outside scope income causes input tax apportionment (despite Frank Smart being against them on that). But VCS involved receipt of fines from car park infringements, which was deemed to be a business activity, albeit not involving consideration for taxable supplies. The current case involved subsidies for a single energy business, and was not predicated on pursuing outside scope income for its own sake. This removed HMRC’s key precedent.
HMRC also argued that the University of Cambridge CJEU decision relating to investment management costs showed that an apportionment was needed. However, that arose because the costs generated income that was wholly outside the scope, whereas the current case involved costs that had a direct and immediate link to the taxable supplies, so there was no realistic comparison between them. HMRC argued that, without the biomass energy business, the appellant could not have obtained the grants. But the tribunal accepted that this wrongly applied the ‘but for test’, since it was only consequential that grants arose from pursuing the taxable trade, and was not part of that trade. Under the precedent of Southern Primary, a ‘but for’ link with costs is not sufficient to condition the amounts of input tax that can be claimed.
These faulty principles appear to be held dear by HMRC. They lost every stage of their four tiered appeal in the case of Frank Smart. This has the feel of a case that will go the same way. Traders who benefit from grants have much to fear from HMRC’s intransigence. Charities often receive grants and donations that they use to deficit-fund, or otherwise have enough wealth to subside, their charitable trading activities. For the same reasons as in this case, they are open to attack from HMRC at least until HMRC recognises that its entire approach to this area is logically flawed.
Graham Elliott is the Charity Tax Group’s Technical Adviser