In the wake of the court decisions in Longridge and Wakefield College we were wondering where the newly stricter conditions for defining ‘relevant charitable purpose’ left children’s care charities that had relied on the ancient precedents of Yarburgh and St Paul’s.  HMRC did not withdraw their policy to the effect that such ‘creche’ charities could be regarded as carrying out relevant charitable purposes despite making charges, but this no longer appeared to align with the recent decisions, and the basic tenet on which they were based, the concept of ‘predominant concern’, had been clearly superseded.  We awaited the next step.

That step has now been taken in the form of a tribunal decision: Yeshivas Lubavitch Manchester (TC07242).  Two questions were settled (amongst several others) in this decision.  The first is whether HMRC continued to support the Yarburgh precedent; the second was whether the tribunal would agree that it is good case law.

The answer to the first is ‘yes’, which is a relief.  HMRC did not say that Yarburgh was dead.  Their point was that Yeshivas is not on all fours with Yarburgh.  As to the second question, even where HMRC supports a legal viewpoint, a tribunal can rain on everyone’s parade by denying HMRC’s generosity.  But, happily, the tribunal saw room for the Yarburgh interpretation to co-exist with Wakefield and Longridge. 

That’s the most important news, but the question of whether Yeshivas could claim to be like Yarburgh is nonetheless an interesting point in itself.

HMRC’s view was that, whereas the activity in question was that of providing a nursery for very young children, that was only part of what the charity did, since it also served the needs of children up to sixteen years old.  HMRC said that the question of whether there was an ‘economic activity’ required a contextual consideration of everything the charity was doing.  This charity, they said, was involved in something much bigger than Yarburgh or St Paul’s had been.  On the facts, the tribunal did not agree.  The nursery was operationally separate, and there was no reason to change the basic interpretation of whether or not it was an economic activity by reference to the other things the charity did.  That seems like a reasonable approach, but we will have to see whether this causes HMRC to appeal in order to limit its creche policy to micro-charities.

Another interesting discussion emerged.  The charity claimed that none of the payments received were ‘consideration’, and that, if they were ‘voluntary contributions’ from parents, and therefore true donations (as the charity claimed), there could not be an economic activity.  Whereas that assertion is correct as a principle, the tribunal considered whether it was true in this case.

There was the usual debate about the veracity of statements and testimony, but the tribunal decided that the charity’s tendency to describe payments as ‘voluntary’ contributions was not realistic, and that these were fees, not donations.  At the very least this emphasises the point that merely calling something a ‘donation’ is irrelevant.  The payment must be truly voluntary in every sense to be a donation.

Yeshivas demonstrated that those who could not afford to pay were given remission from contributing, but that is not the test.  The tribunal believed HMRC’s contention that those who could afford it had no practical choice but to pay.  Yet, this was not regarded as being strictly a means-tested payment in the sense of the Finland decision by the CJEU, so the tribunal believed that the payment was linked to the cost of the service, and was a fee.  Had it not been for the creche/nursery point discussed above, the service would have been an economic activity.

So, the charity was successful.  It also faced challenges relating to the design of the construction works, for which it was hoping the zero rate would apply, by virtue of the question of relevant charitable purpose use.  A separate commentary by Graham, on this case, considering whether a structure was an annexe or not can be read here.

Graham Elliott is Technical Adviser to the Charity Tax Group