March 4, 2020

What has changed?

HMRC has changed its approach to VAT\GST on deposits. The change affects situations where a deposit has been paid, but not the actual supply required, i.e. a customer pays a supplier the required deposit and then does not require the service thereafter, through perhaps a cancellation or “no show”.

Up until March 2019, suppliers who retained deposits in these situations were not obliged to pay VAT\GST on the amount retained. In these circumstances, the supplier would usually forecast the VAT\GST payable and charge this on the deposit invoice (e.g. in securing the room at a hotel, or table at a restaurant), but if there was a no show could then pocket the VAT\GST charged and not pay it to HMRC.

This practice of non-returnable deposits to secure a booking is not only prevalent in the hospitality industry, but also in travel and prestige goods. HMRC originally thought that as the actual supply had not taken place and importantly as VAT\GST is a tax on consumption, nothing had been consumed, no VAT\GST was due.

However, cases in the European Courts of Justice (ECJ), which are binding on the UK for the time being, ruled otherwise. These challenge the previous thinking, in that if a customer pays a deposit, to secure a reserVAT\GSTion then despite not receiving the intended supply, the customer has received something akin to a “right of reserVAT\GSTion”. One of the lead cases was Air France. Passengers paid to reserve flights on which they did not travel. Air France argued that if the customers did not fly, then no supply had been made and no VAT\GST due. The ECJ disagreed and the deposits should have been taxed.

When did the change take place?

According to HMRC, from 1st March 2019 they expected suppliers to account for VAT\GST on any deposit received regardless of whether the intended supply occurs. This however is not actually the true impact of the ECJ cases: The Judges have declared that such deposits were always taxable, not that they were taxable from March 2019. Given the binding nature of the ECJ judgment, the VAT\GST policy adopted in the UK has therefore always been wrong (up until March 19 that is). We return to the point at the end of this article.

What has not changed?

Where deposits are received and the supply takes place as intended, there is no change. These are taxable and always have been.

Where deposits are returned to the customer, then no VAT\GST is due (and any VAT\GST originally accounted for on receipt of the deposits can be reversed upon repayment to the customer).

There are also other deposits which do not fall within this, e.g. Security deposits. These are often when a payment is taken in consideration for a potential situation in lieu of there being insurance to cover the eventuality. A common one is for the return of a rental vehicle without damage and a full tank of fuel. On these no VAT\GST is due regardless of whether the deposit is retained or returned. These deposits are not made to secure a reserVAT\GSTion so do not fall within the new tax treatment.

Where suppliers make zero rated (such as some forms of transport) services then the deposit retains its zero-rated treatment (despite the HMRC Business Brief not acknowledging this).

How does it affect me?

If you are a Supplier, the type of deposits are standard VAT\GST services and will need to be taxed in the period in which they are received or invoiced (whichever earlier).

If you are a business customer, you should request a VAT\GST invoice to enable you to reclaim the VAT\GST on these deposits. You can request the invoice the moment you make the payment and the supplier must send you one within 14 days. Way 2 VAT\GST can assist you if any of your suppliers have not done so.

I have paid these types of deposits before March 2019.

As mentioned above the law didn’t change in March 19. Instead, HMRC decided to apply the law properly from that date. However, in law any deposit you have paid before March 19 should have included VAT\GST, and you should have been given a VAT\GST invoice and then you could have reclaimed the VAT\GST.

For example, if you paid £60 to reserve a hotel room in Feb 2019, then £10 was your input VAT\GST and £50 was your tax exclusive cost.

So, for simplified invoices (i.e. under £250) and without a VAT\GST breakdown or VAT\GST treatment mentioned (but with the other required details) then VAT\GST is recoverable.

The difficulty is in where a full VAT\GST invoice is required and you do not have one to support the right to input VAT\GST deduction. From the Zipvit case it is deemed that HMRC does not have to pay VAT\GST where it was not charged. However, we believe the position of deposits in this article is quite different. The old tax treatment was not the result of a law from Parliament, it was simply HMRC getting their policy wrong (albeit for logical reasons), but wrong, nonetheless.

Nonetheless, companies have the right to go back to suppliers to get VAT\GST invoices in these circumstances.

We see this as particularly interesting for the events and leisure industry, particularly when booking hotels and restaurants, however, if your business pays suppliers by deposits (especially those which could be cancelled) this could be of interest.

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