I originally commented on the unfortunate First tier Tribunal decision in this charity’s case, relating to its conduct in issuing a VAT Zero Rate Certificate for construction work, which later case decisions showed should not have been zero rated.  HMRC had decided to use the carelessness penalty provisions to collect the underpaid tax (as the penalty is 100% of the tax) on the basis that the supplier had accepted the certificate in good faith and should be allowed to rely upon that.

Happily, the Upper Tribunal has reversed the adverse decision (which was that the charity had been careless and should pay the penalty), and that (subject to any HMRC appeal) no penalty is deemed payable by the charity.  I commented, originally, on the point made by HMRC that the appellant had not written to them to enquire whether the certificate should be issued, but had relied on some ostensibly ambivalent advice to issue the certificate.  I made the point that the certificate is only valid if issued to the builder prior to his services being provided, that HMRC would inevitably have opined that no certificate should be issued, and that an appeal against such a ruling would never resolve the position prior to the date construction commenced.  I commented, in effect, that HMRC’s contentions made it impossible to disagree with HMRC without being deemed careless, and I thought that this was a most unfortunate state of affairs.

It is good, therefore, to see the Upper Tribunal adopt this very line of analysis.  In the course of this, it makes the point that HMRC’s hypothetical advice not to issue the certificate would, in any case, not have been an appealable decision, since it cannot have been a decision about a supply that had (at that time) been made.  It also explored, in depth, the nature of the tax and legal (QC) advice given, and found that the legal advice, in particular, was clear enough to allow a trustee to issue the certificate without being deemed careless in doing so.  This aspect is entirely dependent on the detailed facts of this case, of course, but it underlines that any caveats a barrister may make (such as the advice being subject to a change in case precedent) does not mean that the advice was tentative, nor that it is therefore careless to rely on it.

HMRC’s plea that the only way to collect the true tax was to do so via the 100% penalty, since the contractor could not be asked to pay the tax in the circumstances, was countered by the Tribunal by pointing out that the law nonetheless permitted ‘reasonable excuse’ to be a defence against the penalty (whereas it need not have been drafted in that way), and that this was therefore a feature of the law and could not be overlooked accordingly.

Graham Elliott is Technical Adviser to the Charity Tax Group