Charities and their advisers will be aware of the favourable zero rate VAT regime for reading material that has applied in the UK since the days of purchase tax.  They will also know of the seemingly illogical stance of HMRC that this relief only applies to old fashioned physical print formats and not to modern digital formats.  This has been a bone of contention for many years, and one conglomerate, News Corp UK & Ireland, has litigated over the issue to seek zero rating on the digital equivalents of their well-known newspapers.

Whereas the First tier Tribunal agreed with HMRC, the Upper Tribunal (case reference UKUT0404) has allowed the publisher’s appeal, and has decided that digital newspapers are zero rated.  The question this poses to charities is whether there is any read-across to their situation if they supply digital reading material.

It is not the purpose of this commentary to analyse the legal issues that the Tribunal discussed, and these have been covered (and will continue to be covered) widely in various journals, magazines, and adviser bulletins.  The purpose is solely to focus on a few practical considerations that arise from the fact of this decision and the litigation overall.

The first point is that charities will want to consider whether they sell any reading material, and if so, whether the values are substantial enough to warrant any interest in this development.  If they still sell printed (hard copy) reading material in order to access the relief, they may want to consider what the savings could be if they could disseminate it digitally and still zero rate it.

Having done this, and if the issue remains of interest, they could consider the following points:

• The chances of HMRC deciding not to appeal are negligible. This is a key dispute.  They have won one and lost one.  There are two further courts to which to appeal.  The sums at stake are significant.
• For this reason, there will be little prospect of ‘quick money’ from a claim (which is not to say you should not make one – see below). Any claim will be held over until the litigation is concluded.
• The case potentially has wide ramifications for all reading material, but it should be recognised that the case was about digital newspapers specifically, and HMRC could well view it as limited to that kind of product. Charity newsletters and blogs are not the same as newspapers, so there will be arguments to be had about the extent that the decision would in any case apply to a typical charity’s supplies.
• HMRC has a second line of defence against retrospective claims, namely to challenge the charity to demonstrate that it did not pass on the cost of the VAT to the consumer (the ‘unjust enrichment’ test).

Notwithstanding these points, it is also the case that waiting to see how the litigation turns out carries potentially significant downsides.  It could mean continuing to pay VAT when others are not and where it could turn out that you need not have done.  And not making a ‘protective claim’ means that you would lose the right to make a claim at all for ‘capped’ periods under the retrospective claim capping legislation.  Since the continuing litigation could take years to complete, these could mount up to significant costs.

Charities that therefore feel they should make a claim need to consider whether to take professional advice to assist with this.  That would certainly be a wise precaution in order to guard against penalties for appearing careless in the details and application of any such claim.  But charities will then need to ascertain the fee arrangements with advisers, since there is a potential cost investment here, to set against the prospect of possible success with a claim.  Such advice is also advisable when considering not accounting for VAT on reading material going forward, for similar reasons.

HMRC may announce a policy as to how to deal with matters while the litigation proceeds, and that may help resolve these points.  However, they are not obliged to do so, and they could do so after a protracted delay.

Any charity making a claim would be wise to consider whether there are any interpretations in other aspects of their VAT affairs where HMRC could make a challenge.  If a charity is currently considering any aspect where it thinks it may need to disclose a sum payable to HMRC, it would be wise to deal with that first, since, if the point is discovered as a result of HMRC enquiry following a substantial claim, the risks of a penalty (or a higher penalty) are considerably greater (though this is subject to the relative scales of the claim versus the liability, of course).

Charities operating exempt membership schemes of which part of the package is access to reading material, may want to discuss the implications of that aspect with their advisers before drawing conclusions from this decision.

The charity will also want to consider how much management time would be spare to deal with making a claim, or the upshot of a claim, and the value of any other work that they might have to delay to deal with these additional loads.

The Upper Tribunal decision is very encouraging, and there could prove to be significant benefits for some charities.  However, a nuanced and balanced approach to considering the next steps is advisable.

Graham Elliott is Technical Adviser to CTG and Director of City & Cambridge Consultancy