06/12/2021
High-end matchmaking company wins £1.7m VAT dispute
The Upper Tribunal (UT) has granted the appeal from the upmarket matchmaking business to overturn a 1.7m VAT bill on its services
The Upper Tribunal has overturned the decision of the First Tier Tribunal (FTT) and granted the appeal from Gray & Farrar International LLP against HMRCās decision that the services that Gray & Farrar provided were not consultancy and was subject to VAT worth Ā£1,745,667.
The Mayfair-based company provided an exclusive matchmaking service. On introduction to the agency, clients were interviewed face to face and, after dates with prospective matches, were contacted by a liaison team that gave feedback, advice, and coaching. Gray & Farrah would continue the coaching throughout the clientās membership.
Clients sign up for a 12-month membership, which gives at least eight introductions from Gray & Farrarās existing members, at the cost of Ā£15,000 a year, while they can also hire the firm to track down a bespoke partner from outside its client list could cost anything from Ā£25,000 to Ā£140,000.
For VAT purposes, Gray & Farrar treated its service as a supply of consultancy which meant that clients resident outside the EU were not charged UK VAT on its fees according to Article 59 of the Principal VAT Directive 2006.
This legislation includes āthe services of consultants, engineers, consultancy firms, lawyers, accountants, and other similar services, as well as data processing and the provision of informationā
In 2018, HMRC rose assessments on Gray & Farrarās accounts for output tax on supplies made to non-EU customers for the VAT periods December 2012 to June 15, September to December 2015, March to June 2016, and June to September 2016.
HMRC rejected Gray & Farrarās attempt to adopt a zero VAT status and placed the companies supply in the UK meaning that the company owed Ā£1,745,667 in VAT. Gray & Farrah appealed this decision to the First-Tier Tribunal.
HRMC argued that Gray & Farrar used āintangible skills of intuitionā and āreading of emotionsā in order to find suitable matches for its clients and took the view that this was not consultancy, and all of the income should have been subject to UK VAT, regardless of the clientsā location.
HMRC also stated that consultancy services should be regarded as the giving of reasoned, evidence-based intellectual advice. Gray & Farrarās service, in HMRCās view, did not qualify.
It also argued that as Gray & Farrarās services did not fall within Article 59 which means that was not treated as supplied outside the EU and therefore it was outside the scope of Schedule 4 of the Value Added Tax (VAT) 1994.
Gray & Farrar argued that the question is whether the appellant's services were, or were similar to, the services provided by consultants or consultancy firms, or fell within ādata processing and the provision of information.ā
The First Tier Tribunal ruled in favour of HMRC stating that only the managing partner held the necessary expertise to be regarded as a consultant, and that staff simply āgave the clients a listening ear and the kind of support someone might obtain from a friend.ā The tribunal ruled that most of the client contact was handled by the staff and that the managing partner did not give sufficient input for the service of consultancy to be the predominant service.
Gray & Farrar appealed this decision to the Upper Tribunal. The questions in front of the Upper Tribunal were whether services of consultants were limited to supplies by members of the liberal professions? Whether the phrase ādata processing and the provision of informationā denote two separate activities or one activity? and what was the nature of the supply made by G&F?
HMRC characterised the activities of members of the liberal professions as having three key characteristics: they are activities of an intellectual character, require high-level qualifications, and are subject to clear and strict professional regulation. However, the tribunal disagreed with HMRC and concluded that its characterisation was simply a means of describing the activity of consultants and was not intended to limit the scope of the term.
The Tribunal also decided that the term ādata processing and the provision of informationā were two separate activities where were the processing of data for a customer and (the provision of information to a customer. It was not, as HMRC argued, necessary for both activities to be present for a service to be covered by the phrase.
It was common ground before the Upper Tribunal that Gray & Farrar made a single composite supply but the parties differed over how to characterise the supply. Both parties stated that the First Tier Tribunal had applied an incorrect test when addressing this question.
The Upper Tribunal also concluded that, because it had not considered the āpredominate elementā test which derives from the ECJ cases of Mesto [2013] BVC 559 and Levob [2007] BVC 155, that the First Tier Tribunal had erred in law here and the Upper Tribunal ruled that this error should be rectified by it re-making the decision.
The Upper Tribunal concluded that, from the point of view of the typical consumer, the predominant element of Gray & Farrarās service was āthe advice which was provided as part of the matchmaking service combined with the information relating to a potential matchā.
The effect of its conclusion on the first two issues was that this predominant element fell within Article 59. The advice was expert advice which fell within the definition of āservices of consultantsā and the absence of data processing did not mean that the provision of information fell outside Article 59. The Tribunal also stated that the fact that Gray & Farrar provided a liaison service after introductions were made was also not sufficient to disturb this conclusion.
The Upper Tribunal granted the appeal.