*Update* – Graham Elliott has written a second briefing providing further information following the decision in this case.

We do not, as a rule, report cases that deal with entities that are not charities, even where they are constituted as non-profit bodies, but we keep an eye out for cases which could ‘read over’ to charities, and we think that the recent Tribunal decision about VAT in the case of Healthwatch Hampshire CIC (TC05803) is an example.

The case dealt with a perennial issue, which is how to avoid input tax becoming non-recoverable in providing services that a local authority would otherwise perform, given that local authorities can reclaim VAT under S33 VATA.  The simple answer is for the body to which the activity is delegated to make a taxable charge to the local authority, and to reclaim corresponding input tax.  That is what Healthwatch Hampshire CIC tried to do, was denied that treatment by HMRC, but successfully litigated the point, and confirmed the ability to claim the VAT.  We hope that HMRC will accept the result and not attempt an appeal of what does appear to be a somewhat flimsy case.

The specific issue related to a legal requirement placed on local authorities in 2012 to outsource to a CIC (non-profit entity) the function of giving the public a sounding board to which to make comments concerning their local authority’s performance in the area of local care services.  Local authorities had no choice in this, and the entity they had to set up had to be a CIC.  Local authorities had no choice but to fund these CICs on an adequate basis. Thus far, therefore, there appeared to be a structure which was untypical of a free or open market.

Because the arrangement was regarded as a ‘creature of government’, HMRC appears to have agreed with CIPFA that the money flows from local authorities to these CICs would be outside the scope of VAT, as representing something other than consideration for taxable supplies.

It seems that Healthwatch Hampshire did not hear about that agreement, because it arranged with Hampshire County Council to charge VAT, which the latter claimed.  Importantly, for our purposes, the CIC was ‘backed’ by three charities, and these essentially provided the work and facilities that the CIC provided to the local authority.  HMRC ‘accepted’ that the charities’ supplies to the CIC were taxable, but not that the CIC’s supplies were taxable.  The result was a significant ‘sticking’ tax liability.

The charities decided to propel the CIC into the tribunal to challenge this unwarranted creation of sticking tax, and the tribunal agreed with the CIC (and with the charities that backed the CIC).  Despite the lack of a classic commercial market, and the requirement that had been placed on local authorities to fund such separate services, there was no reason to doubt that services were provided, which the local authority needed, and which benefitted the local authority by reference to enabling it to meet its statutory obligations.  All of this was performed in return for payment, and that payment was ‘consideration’.  Following an analysis of the recent Court of Appeal decision in Longridge, including extensive quotes from one of the Court’s judges, the tribunal decided that the activity was within the scope of VAT.

A separate argument that the CIC acted as a public body also left the tribunal unmoved (though that point is not of direct relevance to charities).

It is ironic that the judgement in a case which HMRC won (Longridge) formed the basis of a decision in which HMRC lost.  It seems that HMRC was cherry picking its outcomes to increase revenues.  The tribunal, however, stood in the way of that objective.

Graham Elliott is CTG’s Technical Adviser