In our last Bulletin, we reported on the Upper Tribunal’s (UT) decision on whether the Great Yorkshire show was a fundraising event for the Yorkshire Agricultural Society. Whilst the UT’s decision was good news for the taxpayer taking the case, the decision falls into something of a no man’s land when determining whether it can be applied more widely.

Part of the decision turned on whether the UK had correctly adopted EU law or whether, in particular, the requirement to promote an event as being primarily for fundraising went beyond the requirements set out in the EU legislation which makes no mention of how the event should be promoted.

Although the UT’s decision falls after the Retained EU Law (Revocation and Reform) Act took effect on 1 January 2024 , the decision relates to a claim made by the taxpayer for repayment of VAT from 2016, when the UK was in the EU. HMRC’s interpretation of the Retained EU Law (Revocation and Reform) Act is that UK VAT and excise legislation will continue to be interpreted in the same way as it was before 1 January 2024 but businesses will no longer be able to rely on the ‘direct effect’ of EU law, “and it will no longer be possible for any part of UK legislation to be quashed or disapplied on the basis that it’s incompatible with EU law, as UK law is now supreme”.

Because of this uncertainty, CTG is asking HMRC to clarify whether in the light of the UT decision they will update their guidance and/or legislation on fund raising events and to what extent charities may be able to rely on the UT decision for current and future events. In the meantime, as always, charities will be wise to ensure that when, they have an event which potentially falls within the exemption for fund raising, they do all that they can to follow HMRC’s current guidance. For example, making the clear the fundraising nature of the event.