The decision of the Upper Tax tribunal, in the case of Kati Zombory-Moldovan (UKUT433) may have implications for some charities, and this note seeks to identify the possible issues.

The case itself related to a commercial supplier (whom I will call KZM), but the basic issues affecting commercial suppliers also affect charities.  It related to hire fees charged to traders wishing to take stall plots in craft fairs in order to sell their wares.  The specific arrangements varied from fair to fair, and within fairs, but KZM consistently treated these charges as exempt from VAT on the basis that they provided a right to occupy land (the plot on which the trader erected his stall).  HMRC thought that the supply was taxable as a broader supply of participation in a fair, which involved the supplier procuring the entire fair infrastructure and the relevant publicity.  The first tier tribunal had agreed with KZM, but the Upper Tribunal has agreed with HMRC and it has been confirmed that there will be no appeal.

This means that stall plot hires for fairs is standard rated, not exempt.  It may also have wider application as suggested below, although a charity should always take professional advice on their position before relying on general principles as set out below.

Fundraising events

This issue does not, however, cut across the exemption applicable to charities and wholly owned subsidiaries where a true fundraising event is concerned.  All income from such an event is exempt (subject to the basic rules).  That includes stall rent, just as it includes admission charges.

Other similar situations

But regular craft fairs of this kind (such as, say, a weekly such event in the grounds of a charitable stately home) would be caught on the basis that it breaches the fundraiser conditions.

Charities should consider whether such events of much ‘lower key’ than the facts in the KZM decision could be regarded differently, and should consider taking advice, bearing in mind that HMRC may seek to apply this decision considerably more widely than merely in cases where the facts are identical.

Charities which run conferences will hire spaces for stands in the circulation areas.  This usually gives rise to VAT charges because the charge to the charity for the conference centre is usually subject to VAT, and the purchaser of the stall can usually reclaim VAT or may expect to pay it in any case.  Nonetheless, charities should check their position and consider taking advice if they are exempting this supply.

Charities commonly run car boot fairs, and these may not be sheltered by the fundraiser exemption.  However, it seems that HMRC is more likely to accept that the same point does not apply to selling a plot in a car boot sale, possibly because they are more ‘ad hoc’ in nature and thus the commitment to provide a wider service to the participant is much less, and the prices for the plots will commonly reflect that fact.  Indeed, HMRC has confirmed (at least up to now) that car boot sale pitches qualify as ‘rights over land’ as is also true of market stalls (which they seem therefore to distinguish from stalls at fairs).  Charities will need to keep an eye out for possible changes in that policy (which may not be made as public to charities as to commercial operators).

There is no reason to assume that short hires of meeting rooms are challenged by this case.  These should remain exempt (subject to the rules for exemption).

What if HMRC comes calling?

There is no substitute for taking advice in this situation, but the following are some ideas:

• Do not immediately assume HMRC is correct in your case even though they may quote this case at you.
• Consider whether HMRC has confirmed in the past that your supply is exempt, and whether you may be able to say you relied on that.
• Look to see if any previous professional advice covered the position and then refer back to the adviser.
• The exact nature of your contract with the pitch hirers may allow you to revert to them to make good the VAT shortfall, and some of them may even be able to claim the VAT.

Bear in mind that if this decision has the effect of making your charity registerable for VAT (which it otherwise would not be), you may need to consider a long period of ‘non-compliance’.

 

For further information on VAT exemptions and fundraising events, click here.