The Upper Tax Tribunal has reversed two decisions of the First tier Tribunal concerning scenarios in which a body that lacked charitable status might exempt care services. This has since been upheld by the Court of Appeal (see below) and the Supreme Court has refused leave to appeal. HMRC has since published Revenue and Customs Brief 9 (2021): VAT liability of daycare services supplied by private bodies in England and Wales.
Before getting to the decision, it is worth saying why this is relevant to charities, given that the exemption for such services, if provided by a charity, was not under question.
One reason is that a charity might see an advantage in pursuing an activity through a CIC or subsidiary company and would be interested to know if that would affect the liability. Indeed, one cannot rule out structuring intended to create taxable supplies where the supplies would be exempt if made by the charity, and where input tax recovery was preferred. The second reason is more macro-environmental, in that charities can sometimes compete on better terms than a commercial concern by means of exemptions which only apply to a charity. Despite the view that charities really ought not to be concerned with seeking commercial advantages, this cannot be wholly ignored as a potential issue.
In the cases of Learning Centre (Romford) Limited and LIFE Services Limited the issue was whether care services could be regarded as exempt despite being held to fall outside the strict terms of the exemption. It could be argued that the terms of the care and welfare exemption entail a palpable gap, in that they exempt supplies by non-charities but only if they are state-regulated (or, oddly, exempted from such regulation). Day care services are not regulated in England (though they are in Scotland) so the exemption test is failed. But no such regulation is needed for a charity, which means the very same services are exempt when supplied by a charity.
The First tier, in two separate hearings, decided that the exemption would apply, owing, in one case, to a successful ‘fiscal neutrality’ argument (basically saying that there must be a level playing field between two very similar supplies), and in the other, to the disparity between the Scottish and English VAT treatments which, the tribunal said, could not be allowed to apply to what is, under EU law, a single indivisible member state. LIFE’s decision was appealed to the Upper Tribunal which reversed the fiscal neutrality decision but directed that the Scottish discrepancy point should be considered in a combined appeal of both cases to the Upper Tribunal. This decision, therefore, deals solely with the Scottish discrepancy issue.
That sets the scene. Now for the decision and its reasons.
A shaggy dog story often has a brief punch line. Put simply, the Upper Tribunal did not accept that a regulatory diversion between Scotland and England changed the black letter exemption criteria for bodies operating in either jurisdictions. In all cases, to be exempt, they had to be regulated for the relevant activity. It only so happened that in Scotland they would be and in England they would not be. The VAT legislation did not mandate that difference in itself. The difference was imposed by different authorities which thereby created a concrete difference in VAT terms. Fiscal neutrality could not intervene to impose a different answer, since it was accepted that the criterion of regulation of the services was inherently reasonable, and the fact that one set of services was regulated, and the other was not, was sufficient difference.
What are the consequences?
If we assume it will not be successfully appealed, the result is that charities north of the border will continue to compete on equal and exempt terms with the private sector for a range of care services which happen not to be regulated in England. South of the border, the different tax treatment will continue, with only the charity being exempt. Companies operating across that border will need to apply different tax treatments to the identical services, and perform a partial exemption calculation accordingly. However, that will only affect charities operating through subsidiaries or CICs. And as regards that scenario, the possible choice to be taxable (by using a body that is not charitable) will continue to be available in England, but not in Scotland.
What if it is appealed? It is one of those cases which by turns convinces you of one side of the argument, and then seems to be equally compelling in the opposite direction. Why should there be a fundamental difference within a single member state? I am reminded of the fact that different land law in Scotland is covered by making a zero rated major interest in property one of a lease of twenty years north of the border, but of more than twenty one years south of it. That’s a difference, but the small difference preserves the over-arching consistency of the result across the UK. This decision, by contrast, mandates a difference, which seems odd.
However, there is no disputing that this is not a difference in VAT legislation, but something more fundamental. The Scots say that this service must be regulated, but the English do not impose regulation. That is a significant operating difference the two governments have created, and which have consequences in several ways. VAT would just be one of those ways. After all, England could decide to regulate the service if it saw fit.
Therefore, on balance, this seems the right result, contorted though the outcomes are. But an appeal would be interesting.
The Court of Appeal has upheld this decision of the Upper Tribunal for the same reasons as given by the Upper Tribunal (though with some minor quibbles along the way). However, in being asked to justify (so to speak) the relevant exemption being open to charities, even where not regulated, but not to unregulated non-charitable entities, something of an intellectual skirmish arose between the three judges. The focus was on the requirement in the Principal VAT Directive that the designated body is ‘devoted’ to social wellbeing. Judge Arnold said that this might mean that a charity must constitutionally be restricted to such activities on an exclusive basis. Judge Newey explicitly disagreed, pointing out that this would have profound impacts on multi-purpose charities, and that, in any cases, ‘devoted’ does not mean ‘exclusively devoted’. Judge Floyd gave backing to Newey, but said (as the others had admitted) that the point was an irrelevance to the decision concerning LIFE, as the latter is not a charity.
But, the fact that this altercation took place over a point that all agreed was irrelevant to the outcome of the case, may not prove to be without consequences. Whereas HMRC was not trying to make the point that only an exclusively social care charity would qualify for the exemption, and we have no reason to think that it might do in the future, these obiter remarks could be used in another context to undermine the exemption for charities per se. Whether they resurface in this guise will remain to be seen.
Graham Elliott is CTG’s Technical Adviser and Director of City & Cambridge Consultancy