The Court of Justice of the EU (CJEU) has given what may prove to be the last binding decision on the UK regarding a case the UK courts have referred to it for decision (C-316/18 – The Chancellor, Masters and Scholars of the University of Cambridge). It turns out to be one of the most unwelcome of all its decisions, and the negative impact on charities could become considerable.

The narrow focus of this decision is the treatment of VAT on investment management services. The question is whether a charity, given that it is deemed to carry out investment activity essentially on a ‘private’ basis, can view these costs as part of the overheads of all its business activities rather than a direct cost of the investment activity alone. If it can, then the rate of overhead recovery applies, whereas, if not, no recovery is possible. This, therefore, has a significant direct impact on charities that have taxable activities (whether or not as part of a wider range of non-business and other exempt activities) and which have large investment portfolios (though, as explained below, a wider impact may also apply).

As in all ‘partial exemption’ cases, the analysis is very abstract in nature, but to reduce it to basic concepts, the Court decided that these costs were not an overhead of the charitable activities, but were solely referable to the investment activity, and that this did not (at least in this case) involve the making of any taxable supplies. So, it followed that no recovery was available.

We can expect HMRC to assess charities that have been making proportionate claims on such fees, and to enforce assessments that have already been issued. Charities may need to consider contingent liabilities with their auditors. Where charities have made claims based on the Cambridge University principle, they probably need to issue an error correction disclosure to HMRC.  However, we would hope that HMRC will issue a Brief to inform charities (and other non-profits) as to what is expected of them.

UPDATE: HMRC officials had previously indicated to CTG that they were waiting on a Court of Appeal judgment before commenting on the implications of the case, so we await HMRC’s next steps. Until then charities that can say that their funds are partly or wholly created from earned income, rather than donated income, may be able to conclude that decision cannot be assumed to apply to them until HMRC issues its view on the litigation. Charities would be advised to discuss this with their professional advisors before taking any further action.

That is the narrow impact, but considerable concern is raised also about a wider impact.

This relates to the costs of general fundraising (such as seeking donations, grants, and bequests).  Ever since the UK courts’ decision in Church of England Children’s Society it has been assumed that VAT on such costs is an overhead of the general activities of the charity (subject to the caveat that the funds raised must be used to support the making of the taxable supplies of the charity). This was based on the argument that a Court of Justice decision, Kretztechnick, established that the raising of funds was an overhead of the business for which the funds were raised. However, the University of Cambridge decision deals unhelpfully with the Kretztechnick precedent, when seeking to explain why it did not assist the University’s case. In that case, the costs were in relation to a rights issue, which was deemed not to be a supply at all (but mere raising of capital). The Court explained that the reason to allow these costs to be viewed as an overhead was that the costs would be reflected in the price of the goods and services sold by the company that had sought equity funding. This was to be contrasted, the Court said, with the case of a charity, since a charity used the funds to subsidise the supplies it made, and not to add to the cost base of the supply by being incorporated into that price.

This is, to say the least, a puzzling economic argument. However, the Court of Justice is the de facto supreme court, so there is no opportunity to question the decision made. It implies, fairly strongly, that the case for viewing costs of raising funding from donations to support charitable supplies is greatly weakened. As to whether HMRC will take the extra step of seeking to roll back the Children’s Society precedent is another matter, and we will have to await further policy comment from HMRC to understand whether this is a point that they will take in practice. On this wider issue, therefore, charities will probably want to maintain a watching brief.

The decision appears also to have potential ramifications for the case concerning reverse charges applying to imported services. The apparent corollary of this decision is that charities do not act in the role of ‘taxable persons’ when importing investment management services, even where they are VAT registered.  Accordingly, they potentially need not apply the reverse charge. This point is currently being litigated by the Wellcome Trust which won the point in the First tier Tribunal. Although that decision is under appeal, HMRC may find that it cannot win the appeal following the University of Cambridge decision, and it may even withdraw. That, one might say, is a potential silver lining to this decision.  The wider question then also arises, which is the possibility of no reverse charge on general fundraising costs (applying the same analysis as above). If so, then VAT could be saved by charities procuring from off-shore service providers for all such requirements.

If that was found to be viable, and HMRC attacked proportional VAT recovery on such costs, they may have achieved a partially Pyrrhic victory, since the use of offshore offices of such providers would not always prove impracticable. That said, anything that encourages cross-border shopping to mitigate tax can only be regarded as unfortunate, and charities may need to weigh up the competing pressures relating to preserving charitable resources on the one hand, but not appearing to pay lower tax than they ought on the other.

This decision creates a pretty considerable mess that will take some time to unravel.

Graham Elliott is Technical Adviser to the Charity Tax Group