It sometimes happens that a small sentence in the voluminous VAT legislation can make a massive difference for a taxpayer, in this case, a sub-contractor in the construction industry. I read a First Tier Tribunal decision (J & B Hopkins Ltd) where the Appellant taxpayer incorrectly zero rated its services to a main contractor, Rok Ltd. The project was the construction of a place of worship, and there was no question that this qualified as an RCP building.

Rok Ltd, the main contractor, asked the sub-contractor to zero rate its services, as it was an RCP project, and provided a certificate to that effect. Evidence suggests that the sub-contractor accepted this certificate at face value, making no checks with HMRC. They zero rated their services, which were valued at around £2m. Subsequently HMRC visit, ruled that their services were properly standard rated, and so assessed them. Worse was to come when Rok Ltd went into liquidation, leaving the sub-contractor out of pocket. (There was also a separate argument, whether they could make a direct claim for relief in this circumstance, which was refused.)

And, so to the wording of the legislation. Tucked away in VAT Act 1994, Sch 8, Group 5, note 12(a): “Where all of a building is intended for use solely for a relevant charitable purpose, a supply relating to the building shall not be taken for the purposes of Items 2 and 4 unless it is made to a person who intends to use the building for such a purpose. (edited for clarity)”. Thus, where a sub-contractor makes his supply to the main contractor, the main contractor will not use the building. The sub-contractor has to apply the standard rate. (In passing, where a sub-contractor works on the construction of new dwellings, his services will be zero rated, as Note 12 does not refer to dwellings.)

This situation is actually quite common, as main contractors almost invariably use sub-contractors. But, the lesson is that, when any contractor receives a certificate, or other assurance, from a main contractor, or from a client, as to a VAT liability, he is obliged to make his own checks, and seek advice independently.

Les Howard is a VAT consultant specialising in charities and runs vatadvice.org