Dermot Rafferty, Senior Manager at EY, reviews the recent case MVM (C-28/16), a Hungarian referral to to the Court of Justice of the European Union (CJEU), which was determined by Order of the Court.

The CJEU has a procedure whereby, if it believes that the answer to a referral is sufficiently clear (e.g. the answer may be clearly deduced from existing case-law), it can determine the case by the issue of an Order, without the need for a full Court hearing or a written Advocate General’s Opinion.  The procedure has been used by the CJEU in relation to this Hungarian referral concerning the entitlement of a holding company, that is actively involved in the management of its subsidiaries (within an energy group), to deduct input tax.  Specifically, the referral addresses a situation where the holding company actively carries on a taxable business in its own right, but does not make a charge for the management of its subsidiaries.

The CJEU has disposed of this referral by the issue of an Order dated 12 January 2017, to the effect that whilst Directive 2006/112/EC provides a wide scope to VAT, only activities of an economic nature are covered by the tax.  In that regard it has previously been held by the Court that an activity is generally considered to be ‘economic’ where it is permanent and is carried out in return for remuneration which is received by the person carrying out the activity.  In order for VAT to be deductible, the input transactions must have a direct and immediate link with the output transactions giving rise to a right of deduction. Thus, the right to deduct VAT charged presupposes that the expenditure is a component of the cost of the output transactions that gave rise to the right to deduct.

The CJEU held that as regards the right of a holding company to deduct VAT on its costs, the Court has previously held that a holding company which does not involve itself directly or indirectly in the management of those undertakings, is not involved in an economic activity and consequently does not have either the status of taxable person or the right to deduct VAT.  However, the position will be otherwise where the holding company is directly or indirectly involved in the management of its subsidiaries.  It follows from settled case-law that the involvement of a holding company in the management of companies in which it has acquired a shareholding constitutes an economic activity within the meaning of Article 9(1) of Directive 2006/112/EC where it entails carrying out transactions which are subject to VAT by virtue of Article 2 of that directive, such as the supply by a holding company to its subsidiaries of administrative, financial, commercial and technical services.

The involvement of a holding company in the management of its subsidiaries, without carrying out transactions subject to VAT under Article 2 of Directive 2006/112/EC, cannot be regarded as an ‘economic activity’.

The CJEU concluded that in the present case, it is apparent that MVM received no remuneration from its subsidiaries in exchange for its centralised management of the activities of the group. Thus, in the light of the foregoing considerations, it must be held that the involvement of MVM in the management of its subsidiaries cannot be regarded as an ‘economic activity’ and MVM does not have the right to deduct the VAT paid for the services at issue.  That finding is not called into question by the fact that MVM engaged in other activities since the services at issue do not appear to have a direct and immediate link with any taxable economic activity.  If the referring court were to determine that some of the services at issue relate to both economic and non-economic activities it would be necessary to agree an appropriate method of apportionment.

The Court Order reads:

Articles 2, 9, 26, 167, 168 and 173 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in so far as the involvement of a holding company, such as that at issue in the main proceedings, in the management of its subsidiaries, where it has charged those subsidiaries neither for the cost of the services procured in the interest of the group of companies as a whole or in the interest of certain of its subsidiaries, nor for the corresponding VAT, does not constitute an ‘economic activity’, within the meaning of that directive, such a holding company does not have the right to deduct input VAT paid in respect of those services in so far as those services relate to transactions falling outside the scope of that directive.

The CJEU’s Order clarifies that a holding company engaged in the management of its subsidiaries must effectively charge for its management services.  Where there is no charge, the involvement of the holding company in the managements of its subsidiaries cannot be regarded as an economic activity and VAT deduction should be restricted in this regard, unless there is a link to the business activity as a whole in which case deduction may still be possible where the costs relate to economic activities. Whether inter-company accruals, for example, may be acceptable as evidence of a ‘charge’ is yet to be tested.

!NEW!

HMRC has released its latest guidance on VAT recovery for holding companies.

• Definition and status of a Holding Company
• When is VAT recoverable
• Legal History

In summary, the latest guidance confirms that in order to recover VAT on costs, a holding company must:

• undertake a business activity for VAT purposes
• be the recipient of the supply
• be VAT registered/registerable at the time the cost is incurred, and
• the costs must have a direct and immediate link with the holding company’s taxable supplies.

However, a right to deduct VAT on costs may exist even where there is no direct and immediate link between a particular input transaction and an output transaction, where those costs have a direct and immediate link with the business activity of the holding company, or VAT group, as a whole.

As best practice, taxable management services should be charged on to, and paid for by, the companies benefiting from the services. In practice, this is not always commercially possible so charities concerned with the potential changes may wish to review the position, while also considering other tax consequences.

Positives of the latest holding company guidance

• Previous guidance released in September 2014 laid down a 5 to 10 year time limit for recovery of acquisition costs – this has been removed.
• On stewardship costs, the HMRC guidance is helpful in confirming that VAT should be recoverable as long as the holding company has some sort of economic activity.
• The HMRC guidance states that acquisition costs of shares purchased to support trading activities may be recoverable whether or not there are management supplies, loans, etc. This is very welcome and appears to reduce the scope of any HMRC challenge for “corporate” acquisitions.
• Where no management activity exists because the holding company has a passive shareholding, any input tax restriction should be based on use rather than the simple number of passive shareholdings in the group
• In looking at whether the holding company is the recipient of the supply, the guidance talks about who has contracted for the work, who is invoiced for and paid for the work and does not mention commissioning of the work. This is a positive step forward.
• HMRC accept that where management services or interest bearing loans are provided by the holding company to VAT grouped subsidiaries, these activities can support the taxable supplies made to third parties by the VAT group, and so related input VAT may be deductible.

Potential challenges

• HMRC set out in the background to the guidance that one basic function of a holding company is to dispose of shares in a subsidiary, and that such an activity is not an economic activity. In fact, a holding company may have no intention of disposing of shares in a subsidiary, but even if it did such an action could be economic, even though it may be exempt from VAT.
• The guidance states that management services must be genuine and more than nominal but does not clarify what nominal means.
• The guidance does not seem to recognise VAT groups as a single taxable person. The intention to isolate one member of a VAT group and consider whether its intra VAT group activities are economic is not consistent with the historic treatment of intra VAT group supplies being disregarded for VAT purposes.
• HMRC does not make the VAT recovery position clear when a holding company acquires dormant subsidiaries held further down the group i.e. is VAT recovery still possible if taxable management services are provided to all directly held subsidiaries?
• HMRC has tried to draw a distinction between corporate and private equity transactions, the former not necessarily requiring an economic activity by the holding company itself. This may require further clarification from HMRC to explain precise circumstances where VAT recovery is permitted.

HMRC’s guidance is, therefore, in line with the MVM decision and, as I previously concluded, it is important that holding companies who are involved in the management of their subsidiaries effectively charge the members of the group for those management services. If you are partly exempt for VAT purposes (a point which is particularly relevant in the charitable sector) then you should consider what impact a management charge may have on your Partial Exemption position.