As reported in my commentary in September 2016, following the Court of Appeal decision in Longridge, the limited scope of ‘non-business’ charitable activity (for the purposes of the ‘relevant charitable purpose’ test) appeared to have been established beyond serious doubt.  At that time, however, the case of Wakefield College, had yet to run its course, but was not looking promising, and was based on somewhat different circumstances.  Nevertheless, that line of litigation had some residual prospect of upsetting the apple cart and giving us yet another view as to what ‘non-business’ really means.

On 1 May 2018, the Court of Appeal delivered its judgement in the Wakefield case (EWCA Civ 952).  This has not, in my view, changed any of the conclusions drawn from Longridge, neither producing a more generous, or more parsimonious, overall position.  However, that does not mean it was a complete non-event in legal terms, and it raised some points that are more apt to obscure comprehension than enhance it.

First, I should describe the nature of the dispute.  HMRC denied RCP VAT relief for a new building on the footing that more than 5% of the use would be ‘business’.  The College argued that students that paid heavily subsidised fees, for which they qualified by living locally, were not consuming the service in the course of a business.  This was based on the CJEU decision of Finland, in which it was decided that means-tested payments, made by a minority of service users for legal advice, was not payment for services in the business sense, because it relied on determining the means the payer had to contribute, rather than an assumed value of the service, and that was not a clear enough ‘link’ between payment and consumption for the payment to be ‘for’ the services.  This principle was later repeated by the CJEU in the case of Gemeente Borsele, in which a municipality charged parents for school bus rides, but only those travelling more than a certain distance, and only to the extent affordable by the family (thus, means tested), thereby achieving income of only 3% of the costs of the service.

In simplified terms, the College was arguing that it, too, only charged a small percentage, and had kept the prices low because of the well-understood paucity of means of the local residents.  Thus, despite the charges being fixed for all (qualifying) applicants, it was a form of means testing, and, following Finland and Gemeente Borsele, was therefore not ‘consideration for’ the service, and thus not ‘business’, so the 5% tolerance did apply to it.

The Court of Appeal has not accepted the analogy.  That may not be surprising, since Gemeente Borsele involved a public body that chiefly provided services funded from taxation, (and public bodies, acting as such, are not considered to be ‘taxable persons’), and a similar point applied to Finland.  Put simply, the differences in the arrangements were too significant to allow the principle to read across to the College.

But, along the way, the Court of Appeal spent considerable effort promoting a theory about interpreting both the VAT Directive, and the French and English language judgments of the above cases, which had not previously been revealed.  This is that Article 2 of the Directive refers to ‘consideration’ payable for supplies, but this is not, necessarily, the same as ‘remuneration’ for the purposes of Article 9.  It is Article 9 that determines whether it is an economic activity, and thus a ‘business’.  All Article 2 does is establish that, absent any consideration payable, Article 9 is irrelevant.  The upshot of this startling discovery is that ‘consideration’ can arise in cases where there is no business, and the mere fact that there is consideration does not mean there is a business going on.  One has to find more in the circumstances.

Whilst this sounds temptingly like a fissure in the edifice of the Longridge principle (and you can expect people to seek to make something of that), it does not seem to me to amount to very much.  When seeking to ascertain where ‘consideration’ might not fall within Article 9, the main point is that, where the consideration has an insufficient ‘link’ with the service, it is not in Article 9.  That was the case where a service was provided for free, unless on the basis of means testing, one has to make a contribution; or where a service is provided for free by a municipality, but it demands a contribution from a minority of users for various reasons.  It was held not to apply to a college that had been set up to provide such services, and then sought very subsidised fees for a provision to a large swathe of people.  In that case, the Court said, the link was present, and that was enough to defeat Wakefield College.

This, I think, has no real practical difference from saying that a payment is not consideration for VAT purposes unless it has a direct link with the product procured. And this, in realistic terms, is what was established in Longridge, and earlier cases such as Apple & Pear.  It leaves charities in much the same place they were at the end of the Longridge litigation, although we shall wait and see whether imaginative use of this new theory gives rise to more favourable future court decisions.

Graham Elliott is Technical Adviser to the Charity Tax Group