Category: Value Added Tax

In the UK most basic food stuffs are zero rated. However, the definition of 'basic' is not straightforward and many of the foods are zero rated as a result of historical legislation dating back to the introduction of VAT in 1973.

Famously, cakes are zero rated but not all biscuits are zero rated. However, biscuits wholly or partially covered in chocolate are standard rated. This topic was the subject of a landmark case concerning Jaffa Cakes way back in 1991. The VAT Tribunal had to decide whether a Jaffa Cake was a cake or a biscuit (in case you were wondering, the court ruled it was a cake and hence zero rated)!

Since then, there have been many cases looking at the VAT liability of various foodstuffs. The most recent case concerned the VAT liability of a specific brand called Mega Marshmallows. The confectionery firm in question had won a First-Tier Tribunal (FTT) decision.

The conclusion reached by the FTT was that Mega Marshmallows are not confectionery and that the supply was therefore zero-rated. This was based on findings that Mega Marshmallows are sold and purchased as a product specifically for roasting and are therefore ingredients used in cooking (on a barbecue), rather than sweets. The FTT considered the marketing, the packaging, the size of the product, the positioning in supermarkets and the seasonal fluctuation in sales when reaching its findings.

HMRC appealed their demand for over £472,000 of VAT to the Upper Tribunal. The Upper Tribunal found there was no error of law in the FTT’s decision. The appeal was therefore dismissed. Another interesting case and success for the taxpayer on the VAT liability of a ‘sweet’ product.

The online service for checking a UK VAT number is available at: www.gov.uk/check-uk-vat-number.

This service can be used to check:

• if a UK VAT registration number is valid; and
• the name and address of the business the number is registered to.

The service also allows UK taxpayers to obtain a certificate to prove that they checked that a VAT registration number was valid at a given time and date. This is especially important when you take on new suppliers as if the VAT number is invalid, HMRC could withdraw your ability to reclaim the VAT input VAT you have paid. The certificate will also provide valuable evidence to prove that the trader acted in good faith, should HMRC challenge input tax recovery or seek payment of lost VAT.

The European Commission website also includes an on-line service which allows taxpayers to check if a quoted VAT number from anywhere in the EU or Northern Ireland is valid. The on-line service is available at: https://ec.europa.eu/taxation_customs/vies/#/vat-validation

There are special rules that determine the recoverability of VAT incurred before a business registered for VAT. This type of VAT is known as pre-registration input VAT. There are different rules for the supply of goods and services, but VAT can only be reclaimed if the pre-registration expenses relate to the supply of taxable goods or services by the newly VAT registered business.

The time limit is backdated from the date of registration and is:

• 4 years for goods on hand, or that were used to make other goods on hand; and
• 6 months for services.

The pre-trading VAT input tax should be reclaimed on a business's first VAT return. When a new VAT registration is applied for, there is an option to backdate the registration (known as the effective date of registration), this option should be considered if there is additional input tax that will be made recoverable.

There are special rules for partially exempt businesses and for businesses that have non-business income and for the purchase of capital items within the capital goods scheme.

HMRC’s internal guidance on the issue provides interesting examples. One of those relate to the purchase of a van by an individual for wholly private purposes. Three years later the individual registers for VAT and uses the van exclusively within their business. The VAT incurred on the purchase of the van will never be recoverable because there were no business activities at the time the van was bought.

Business owners often refer to VAT as if it were a cost to their business regardless of their VAT position; whether they are registered for VAT or not.

If you are not registered for VAT, you do not have to add VAT to your sales and you cannot recover any VAT you pay on purchases. In which case, under these circumstances, VAT is a cost.

If you are registered for VAT, cash you collect from your customers will include VAT – if the sales are subject to VAT – and you will pay the VAT collected (less any VAT you pay on purchases) to HMRC. As you are collecting VAT from your customers, paying VAT on purchases to your suppliers and paying the difference to HMRC, there is no overall cost to your business.

Where an error on a past VAT return is uncovered businesses have a duty to correct the error as soon as possible. As a general rule, any necessary adjustment can be made on a current VAT return. To do this, the errors must be below the reporting threshold.

Under the reporting threshold rule, businesses can make an adjustment on their next VAT return if the net value of the errors is £10,000 or less. The threshold is further increased if the net value of errors found on previous returns is between £10,000 and £50,000 but does not exceed 1% of the total declare sales value for the return period in which the errors are discovered.

HMRC must be separately notified of errors that exceed either of the limits set out above or if the error was deliberate. VAT errors of a net value that exceed the limits for correction on a current return or that were deliberate should be notified to HMRC by making the correction online or submitting form VAT 652 (or providing the same information in letter format) to HMRC's VAT Error Correction team.

HMRC can also charge penalties of up to 100% of any tax under-stated or over-claimed if you file an inaccurate return.

There are special VAT reverse charge rules for certain building contractors and sub-contractors. The rules, which came into effect on 1 March 2021, makes the supply of most construction services between construction or building businesses subject to the domestic reverse charge. The reverse charge only applies to supplies of specified construction services to other businesses in the construction sector.

The charge applies to standard and reduced rate VAT services:

• for businesses who are registered for VAT in the UK; and
• reported within the Construction Industry Scheme.

This means that where the rules apply, sub-contractors no longer add VAT to their supplies to most building contractor customers. Instead, contractors are obliged to pay the deemed output VAT on behalf of their registered sub-contractor suppliers. This is known as the VAT domestic reverse charge.

Please note, contractors who make the domestic reveres charge payments for their sub-contractors can, in most circumstances, claim the same amount on their VAT return as input VAT. Consequently, there is no cash flow effect; just the hassle of making sure the accounting entries are dealt with correctly.

The VAT domestic reverse charge applies to the following services:

• constructing, altering, repairing, extending, demolishing or dismantling buildings or structures (whether permanent or not), including offshore installation services;
• constructing, altering, repairing, extending, demolishing of any works forming, or planned to form, part of the land, including (in particular) walls, roadworks, power lines, electronic communications equipment, aircraft runways, railways, inland waterways, docks and harbours, pipelines, reservoirs, water mains, wells, sewers, industrial plant and installations for purposes of land drainage, coast protection or defence;
• installing heating, lighting, air-conditioning, ventilation, power supply, drainage, sanitation, water supply or fire protection systems in any building or structure;
• internal cleaning of buildings and structures, so far as carried out in the course of their construction, alteration, repair, extension or restoration;
• painting or decorating the inside or the external surfaces of any building or structure; and
• services which form an integral part of or are part of the preparation or completion of the services, including site clearance, earth-moving, excavation, tunnelling and boring, laying of foundations, erection of scaffolding, site restoration, landscaping and the provision of roadways and other access works.

The Check a UK VAT number service is available at: www.gov.uk/check-uk-vat-number.

This service allows users to check:

• if a UK VAT registration number is valid; and
• the name and address of the registered business.

The service also allows UK taxpayers to obtain a certificate to prove that they checked that a VAT registration number was valid at a given time and date. This is especially important when you take on new suppliers. If the VAT number is invalid, HMRC could withdraw your ability to reclaim the input VAT you have paid. The certificate will also provide valuable evidence proving a taxpayer acted in good faith – should HMRC challenge input tax recovery or seek payment of lost VAT.

The European Commission website also includes an on-line service which allows taxpayers to check if a quoted VAT number from anywhere in the EU or Northern Ireland is valid. The on-line service is available at: https://ec.europa.eu/taxation_customs/vies/#/vat-validation

The government is looking to introduce a new relief that would provide a VAT boost to charitable donations. The new VAT relief would be designed to encourage businesses to donate everyday items to charities without creating a VAT liability. A 12-week consultation on the proposed changes will be launched before 23 July 2024.

Under the current rules, firms do not pay VAT on any goods they donate which are then sold on, such as clothes, hygiene supplies and cleaning products. However, if these goods are not sold but are instead distributed free of charge to those in need VAT must be accounted for. 

The proposed relief would help encourage donations of low value household goods such as:

• hygiene items (soap, toothpaste, toothbrushes, shower gel, toilet rolls)
• second hand items from hotels (such as sheets, kettles)
• cleaning supplies – including laundry detergent

The new VAT relief will not include goods which are donated to charities for the charity to use, such as new IT equipment, in order to prevent any possible VAT avoidance.

The result of the consultation and confirmation of any changes will be announced at a future fiscal event.

VAT retail schemes are a special set of schemes used by retail businesses to account for VAT. The schemes are used by businesses that sell a significant amount of low value and/or small quantity items to the public with different VAT liabilities.

The use of the schemes can save businesses a significant amount of time in calculating the amount of VAT due to HMRC on each sale. In many circumstances, it would be extremely difficult for these businesses to account for VAT using standard VAT accounting. By using the VAT retail scheme, retailers are able to calculate VAT due to HMRC at the standard, reduced and zero rates of VAT as a proportion of sales. Usually this is done on a day by day basis.

There are a number of standard VAT retail schemes:

• the point of sale scheme
• two apportionment schemes
• two direct calculation schemes

There is also the option of using a bespoke scheme. The use of a bespoke scheme is obligatory for retailers with a turnover excluding VAT of £130 million or more.

The decision as to which retail scheme to be used is usually driven by a combination of looking at the scheme that provides the best result for the business in question combined with the cost of using the scheme with the important caveat that HMRC are of the opinion that the chosen scheme is fair and reasonable.

There are special procedures for moving goods in and out of Northern Ireland. Under the Northern Ireland Protocol, all Northern Ireland businesses continue to have access to the whole UK market. 

There is specific guidance published by HMRC that should be followed for goods that are received into Northern Ireland from a supplier in the EU.

• If you are registered for VAT in the UK and receive goods in Northern Ireland from countries in the EU, you will normally account for the VAT through your VAT Return. You will need to account for the VAT at the same rate that you would have paid if you had bought them from a UK supplier. This VAT is known as acquisition VAT, and you can normally reclaim some or all of this if the acquisitions relate to VAT taxable supplies that you make.
• If you are not VAT registered and receive goods in Northern Ireland from countries in the EU, your supplier will charge VAT at the local rate in the EU country from which the goods are supplied. If you are not already registered for VAT in the UK and buy goods worth £90,000 (£85,000 prior to 1 April 2024) you may be required to register for VAT.

You may also be required to complete an Intrastat Supplementary Declaration if your acquisitions of goods from the EU exceed an annual amount. The delivery terms threshold for both arrivals and dispatches is currently £24 million.

The taxable turnover threshold that determines whether businesses should be registered for VAT increased to £90,000 from 1 April 2024. The previous limit was £85,000. The taxable turnover threshold that determines whether businesses can apply for deregistration was also increased from £83,000 to £88,000 on the same date. It had been previously announced that the rates would be frozen until 31 March 2026. However, the Chancellor’s announcement makes the first change in 7 years to the rates and has been designed to help SMEs.

Businesses are required to register for VAT if they meet either of the following two conditions:

1. At the end of any month, the value of the taxable supplies made in the past 12 months or less has exceeded £90,000 (2023-24: £85,000); or
2. At any time, there are reasonable grounds for believing that the value of taxable supplies to be made in the next 30 days alone will exceed £90,000 (2023-24: £85,000)

Businesses with no physical presence in the UK may also have a liability to be VAT registered in the UK if they supply any goods or services to the UK (or expect to in the next 30 days).

The VAT Flat Rate scheme is open to VAT registered businesses that expect their taxable turnover in the next 12 months to be no more than £150,000, excluding VAT. The annual taxable turnover limit is the total of everything that a business sells during the year that is not VAT exempt.

Under the scheme rules, businesses pay VAT as a fixed percentage of their VAT inclusive turnover. The actual percentage used depends on the type of business. There is a special 1% discount for businesses in their first year of VAT registration.

If any of the following apply, you will not be eligible to join the scheme:

• you left the scheme in the last 12 months;
• you committed a VAT offence in the last 12 months, for example VAT evasion;
• you joined (or were eligible to join) a VAT group in the last 24 months;
• you registered for VAT as a business division in the last 24 months;
• your business is closely associated with another business;
• you’ve joined a margin or capital goods VAT scheme; or
• you are using the Cash Accounting Scheme.

Once you join the scheme you can usually continue using it provided your total business income does not exceed, or you do not expect it to exceed, £230,000 (including VAT) in a 12-month period. You must also leave the scheme if you expect your total income in the next 30 days alone to be more than £230,000 (including VAT). There are special rules if the increased turnover is temporary.

If you think that the scheme may be beneficial for your business, please get in touch and we can help you consider your options.

The VAT Cash Accounting Scheme can offer useful benefits to small businesses. Under standard VAT accounting, VAT is payable on sales whether or not the customer has paid and can lead to claims for Bad Debt Relief. By using the VAT Cash Accounting Scheme no VAT needs to be paid over to HMRC until the customer has paid for his goods / services. Using the scheme, if the customer does not pay, then the VAT is not payable to HMRC.

The scheme can also have cash flow benefits for any business that sells on credit as they only pay VAT on their sales when the customer pays. If you have cashflow concerns, this scheme could be worth a closer look.

By using the scheme, you can only recover the VAT paid on purchases once you have paid your suppliers.

A business can use the VAT Cash Accounting Scheme provided the estimated VAT taxable turnover for the next VAT year is not more than £1.35 million. There is no requirement to notify HMRC, but you must join the scheme from the beginning of a VAT accounting period.

A business can continue to use the scheme until their VAT taxable turnover exceeds £1.6 million. Businesses that stop using the scheme are also not required to notify HMRC. However, they must pay any outstanding VAT whether their customers have paid or not. Any outstanding VAT can be reported and paid over 6 months.

There are special VAT rules that allow businesses to standard rate the supply of most non-residential and commercial land and buildings (known as the option to tax). This means that subsequent supplies by the person making the option to tax will be subject to VAT at the standard rate.

The ability to convert the treatment of VAT exempt land and buildings as subject to VAT can have many benefits. The main benefit is that the person making the option to tax will be able to recover VAT on costs (subject to the usual rules) associated with the property including the purchase and refurbishment of the property. You do not need to own the land in order to exercise an option to tax.

Any subsequent sale or rental of the property will attract VAT. Where the purchaser or tenant is able recover the VAT charged this is not normally an issue. However, where the purchaser / tenant is not VAT registered or not fully taxable (such as bank) the VAT can become an additional (non-recoverable) cost. Once an option to tax has been made it can only be revoked under limited circumstances so proper consideration of the issue is important.

The VAT Flat Rate scheme allows businesses to pay VAT as a fixed percentage of their VAT inclusive turnover. The actual percentage used depends on the type of business. The scheme has been designed to simplify the way a business accounts for VAT and in so doing reduce the administration costs of complying with the VAT legislation.

The scheme is open to businesses that expect their annual taxable turnover in the next 12 months to be no more than £150,000, excluding VAT. The annual taxable turnover limit is the total of everything that a business sells during the year. It includes standard, reduced rate or zero rate sales and other supplies. It excludes the actual VAT charged, VAT exempt sales and sales of capital assets.

A limited cost trader test was introduced in April 2017. Businesses that meet the definition of a 'limited cost trader' are required to use a fixed rate of 16.5% for the scheme. Businesses defined as limited cost traders may find it more beneficial to leave the scheme and account for VAT using traditional VAT accounting.

Once you join the scheme you can continue using the scheme provided your total business income does not exceed £230,000 in a 12 month period. There are some special rules if the increased turnover is temporary. There is also a first year discount for businesses in their first year of VAT registration of 1%.