*UPDATE* Unfortunately, in July 2019, the CJEU ruled against the University of Cambridge. This case has potentially serious ramifications for charities – read a detailed commentary of the decision here.

This commentary relates to the VAT recovery status of costs incurred by charities in maximising their investments; specifically investment management fee VAT charges.  The issue is only of relevance to VAT registered charities, which have a reasonable level of VAT recovery on their overheads.  The issue is whether the VAT on these costs can be considered an overhead of the activities of the charity as a whole, or must be considered only to relate to the investments, the trading of which generally give rise to non-taxable activity.

This has been a long-running case, in which the appellant, University of Cambridge, has won at both the First tier and Upper Tribunals.  HMRC’s argument, that VAT cannot be claimed as an overhead because it is ‘locked behind’ the non-taxable investment activity has been rejected by those tribunals.  In those decisions I did not detect any real ambivalence.  The University’s arguments appeared powerful and convincing.  We are aware that many charities have made successful claims on the back of these decisions (and at one time the position was openly accepted by HMRC).

But HMRC was dissatisfied, and appealed to the Court of Appeal.  They had hoped to overturn the previous decisions.  HMRC was unsuccessful in this, but has nonetheless had a surprising and disappointing measure of encouragement from the Court, in that the Court has resolved to refer the issue to the Court of Justice of the EU (CJEU) for guidance.  Not for the first time, this has been decided without apparent encouragement by either of the litigants.

In legal terms, the Court of Appeal ought to do so if the point is not absolutely clear.  That said, some of us were wondering whether the threshold for such a reference would be diluted drastically as we approached Brexit in March 2019 (after which references cannot be made).  But the Court of Appeal has apparently taken the view that we play by the rules up to the very last moment, and as the point is not ‘acte claire’, it must be referred.

The legal arguments which drew them to their undecided mindset are complex and nuanced, but might best be glossed as a view that precedents had seemed to suggest weaknesses in the arguments of both sides, and the sum total of those weaknesses was that the position was uncertain.  In particular, a range of decisions of the CJEU over the years have accumulated to form a confused picture.  These decisions may not be flatly contradictory, but they are not easy to reconcile.  Whilst a court could attempt to do so, there would always be the possibility that the CJEU would take a different tack.  One key example, the CJEU’s 2015 decision in Sveda, led the Court of Appeal to view costs that lead to non-business uses as qualifying to be attached to other taxable uses as long as they had a clear operational link with those taxable supplies.  But deeming investment expenses as being overheads, where these are of a non-operational kind, is not quite the same.  The Court seemed to hint that they felt the link was simply too weak in that context, being at one further stage removed than in the Sveda example.  But they were not minded to decide the point against the charity on the basis of a doubt that was not a conviction.

On that basis we can be thankful that the Court is to refer the point to the CJEU.  Once the decision comes back (hopefully before Brexit actually happens), the Supreme Court would still have a potential bite of the cherry.  But if the CJEU decides in favour of the charity, we will probably be home and dry.

In the meantime, however, there is a nervous period of waiting.

You can read the judgment here.