10 December 2018 - Article
Not all VAT related cases come before a tax tribunal. In the case of Janine Ingram the issue was one of ‘Landlord and Tenant' law, which just so happened to involve VAT.
She was the tenant, and the landlord was the Church Commissioners. She noticed that her residential service charges had increased. She saw that there was an increase in the VAT charge in the costs. This was traced to ‘salaries' paid by Knight Frank for servicing the property. These were Knight Frank staff, whose time and effort was being recouped in the service charge.
Residential service charges are exempt from VAT when the services are provided by the landlord, or (but only under extra statutory concession 3.18, Notice 48) by a third party direct to a tenant, if the service charges must be paid as a condition of the interest held in the property. Janine Ingram's reaction was that Knight Frank was charging her for services she was required to pay for as a condition of ownership/occupation, and that their supply ought therefore to be exempt under the second test (and the concession).
But both Knight Frank and the Church Commissioners took the view that the exemption did not apply under either heading. First, Knight Frank, though acting as the collector of the service charges, did not make the supply direct to the tenants, but only to the landlord. Second, the landlord was indeed exempting its charges for services, since it added no VAT to the charge. But, as its supplies were exempt, the VAT charged by Knight Frank to it was irrecoverable and as such a ‘sticking cost' of the exempt service. That meant that the VAT cost locked into the chain of charges was not relievable under this exemption.
The tenant found it hard to believe that the exemption could not apply directly. It seemed so clear that Knight Frank's charge was made direct to the tenant and thus ought to be exempted under the concession. If not that, then the landlord ought to have made simple changes to the arrangements to allow direct supply and thus for the Knight Frank services to be exempt. Or else the Church Commissioners should have taken on their own staff under employment contracts thus eliminating VAT on their purchase. Why, the tenant wondered, did she have to suffer VAT because of a maladroit arrangement by the landlord?
One sympathises with her, as no doubt did the tribunal. But, the facts were against her and the liability could not be removed. The landlord was allowed to make arrangements which did not benefit the tenant because they were not within the concession, and the tribunal could find no fault by the landlord.