The Court of Appeal (‘the Court’) has delivered its verdict on the case of Longridge on the Thames (Longridge) following two previous decisions on its case by the first tribunal and upper tribunal. The Court found for HMRC, overturning two previous decisions in the charity’s favour. The case has the potential to create ramifications for a significant part of the charity community. Unless it is successfully appealed to the Supreme Court, it will be the last word. My immediate inclination is to doubt that the Supreme Court will overturn the Court of Appeal, though it might make further (and possibly unhelpful) comment.

For that reason, I think this is likely to be the end of the road for this charity, but of greatest concern is what it could mean for others. Given that I (alongside several other observers) was concerned that Longridge overstepped the mark set by previous cases, the issue seems to me to boil down to whether the Court simply believed that to be the case, or whether it went further and cast doubt on the previous cases. If it is the latter, we face more significant challenges. As an observer of the first day of the actual hearing I can reveal that HMRC’s argument was that the previous cases are no longer good precedent and must be ignored, so we know what HMRC wants out of this. Did they get what they sought?

Before analysing this it is worth reminding you what it was all about. This is about a VAT relief (a zero rate) applicable to new buildings for charities. The relief applies where the building is for non-business use (more or less). Where any business use would be exempt, the charity prefers its activities to be regarded as non-business so that it is not charged VAT which it cannot claim. If it made taxable supplies the VAT on costs would be recoverable in any case. So the issue at stake was whether Longridge was operating as a business.

At that stage I should digress for a moment, and say that both sides accepted that a ‘business activity’ for this purpose was the same as an ‘economic activity’ under EU VAT law. That is critical because it brings into play the entire ‘jurisprudence’ of the Court of Justice (‘CJEU’) on this topic. Is that right though? Probably it is, though I would have liked some argument to seek to disassociate the two terms when considering this VAT relief. It would be a difficult argument, and one made even more difficult by not being attempted in this case, so let us move on by, and save that for some far distant day.

So, if the charity is carrying out an economic activity, it does not come within the relief. But what is an economic activity in VAT terms?

Over several years the UK courts have developed some principles that help answer this question on a fairly impressionistic basis. These are usually called the Fisher tests, based on an old case about blood sports. First, one determines if there are any charges made for services (in the absence of which there is no economic activity). If there are charges one is supposed to then look at the following: Is it a serious activity earnestly pursued? Does it have continuity? Does it have sufficient substance? Is it regularly carried out and based on sound business principles? Is it predominantly concerned with making supplies for consideration? Is it the kind of activities ‘proper’ businesses would perform and find recognisable? The idea is that the answers to these questions will provide enough to come to a nuanced conclusion on the matter.

For Longridge itself, the key test was the penultimate one, concerning ‘predominant concern’. It could not lay claim to the others. It said that its policy of subsidised pricing and use of volunteer labour showed that it was predominantly concerned with access to the activity and not with ‘making supplies for a consideration’. It had succeeded at both previous tribunals on that basis.

But HMRC invited the Court to consider the definition of ‘economic activity’ based on the more recent CJEU decision in Finland, in which the CJEU had adumbrated the test more succinctly as follows: ‘an activity which is permanent and is carried out in return for remuneration which is received by the person carrying out the activity’. The Court adopted this as the ‘general rule’. It said that the Fisher tests could not supplant or expand on this principle. As a general proposition that has to be correct as EU law is paramount, and the CJEU is the highest court. The only issue is whether that ‘general rule’ can be ‘explored’ or ‘illuminated’ by the Fisher tests.

The Court did not rule out the possibility of that entirely. It said (in a somewhat nuanced manner that may yet prove difficult to apply in practice) that ‘the domestic authorities… now diverge in some respects from the test to be applied [as per the CJEU’s view]’. This casts a long shadow over them, but we need to ask in what respects they remain consistent with the CJEU’s definition. It goes on – ‘the Fisher tests may have a role to play, but they cannot displace the approach required by CJEU jurisprudence’. If so, then one wonders what that role actually is.

The judges clearly thought that quantum of charge was not relevant under the ‘general rule’, and nor was ‘predominant concern’. Looking at the (somewhat Delphic) definition by the CJEU we are left wondering what it means by an activity being ‘permanent’. Can any of the Fisher tests help with this? It cannot mean ‘never ending’ or ‘eternal’. Perhaps the tests concerning scale, regularity, business-like operation, seriousness and earnestness, remain in place to help us define something that is ‘permanent’. Or perhaps, despite the seemingly nostalgic desire of the Court not to go as far as to damn the Fisher tests out of hand, what they are really trying to say is: ‘let go – they are no more…’.

One point that seems obvious is that a relief for the creation or acquisition of a building is hardly likely to be compatible with arguing that the use of the asset is going to be sporadic or short lived, or somehow impermanent in that sense. If so, we are left with the uncomfortable position that uses of buildings in cases where there is no ‘remuneration’ (for which read payment or ‘consideration’) may be the only uses that are not to be regarded as ‘business’ uses.

Thankfully, the entirely separate relief for ‘village halls’ is not affected by this, but it is only thanks to judges north of the border that HMRC hasn’t managed to nibble away at that relief as well.

So, my despondent conclusion is that HMRC will claim that the line of cases, including Yarburgh and St Pauls are now superseded and do not apply. If that proves to be the case, this is a considerable loss to the sector. These were very modest operations. Later cases, such as Sheiling Trust involved loose consensual payment terms and addressed needs that the commercial sector could never have attempted to deal with. They were a far cry from the recreational activities carried out at Longridge on the Thames. These smaller and more particular examples would seem deserving of being regarded as not any kind of ‘business’ in the sense we would normally adopt, but may now be swept into the net of being an ‘economic activity’ by reference to this decision. That would be regrettable, and makes me ask again whether the purpose of parliament in granting this relief really was to align ‘business’ in the sense it understood then, with the amorphous all-embracing EU definition of ‘economic activity’.

Charities may thus need to consider not charging for services, and perhaps seeking voluntary income instead. But in doing so, caution has to be exercised as to the approach adopted, because HMRC may attempt to treat these funding sources as ‘consideration’, or related ‘subsidies’, so considerable care is called for.

Graham Elliott is CTG’s technical advisor

Please also see further commentary by Graham on the applicability of the Fisher tests following the Gravel Road Records VAT case.