When silence may not be golden... Graham Elliott comments on the Upper Tribunal decision in DPAS.
The terms of a contract are still the starting point for any analysis of the VAT position (viz Secret Hotels2 [2014] UKSC 16) and economic reality is compared with the terms of any contract to test its robustness of application to the VAT analysis. That means that VAT outcomes can depend considerably on an analysis based on contract law.
The latest appeal in the dental fees collection case, DPAS [2015] UKUT 0585, has emphasised this truth. The gist of the case was that the taxpayer changed the terms of the fee for a dental scheme so that its supply was made to the customer rather than the supplier. This was intended to change the nature of the service from that of collecting debts for the supplier (taxable) to that of facilitating payment for the customer (exempt). To my mind, that shift did nothing more or less than make sense of the existing transaction.
It seems that the First-tier Tribunal felt the same way, as it allowed the appeal against HMRC’s opposition to this and declared the payments exempt. The Upper Tribunal has reviewed this and, on one basis, has partly overturned this decision. My comments focus on this one point.
In order to create a new contract with the customer, the company wrote via the suppliers (dentists) to their customers, telling them of the change. The critical aspect is that it sought specific acceptance of the changes by means of a reply slip giving assent. But, it also told these people two things: the price would not change; and if they did not respond specifically stating non-acceptance of the change, they would be treated as having accepted, in any case, by virtue of silence.
Amazingly, 30% actually responded and ‘only’ 70% were silent.
The First-tier Tribunal accepted the argument that the silence of the 70% amounted to acceptance of the contractual change. This was vital, since a contract cannot be imposed upon a counter-party. It was this aspect that the Upper Tribunal did not accept. It said that silence was not enough under contract law. That foiled the change for the 70%.
I imagine there is enough in this to appeal on that point to a court that may be more expert than the Upper Tribunal in such matters. I wonder, though, whether a neater solution might have been to tell customers that a failure to respond risked an increase in their costs (owing to increased VAT). If I belonged to such a plan and received a letter telling me clearly that a ‘do nothing’ option was just as favourable for me as going to the effort of responding, I would sit on my hands. But told that unless I signed a slip of paper I might pointlessly incur higher charges, I would spend 15 seconds doing that.
I am not criticising anyone here, as I do not doubt that such points were debated by the taxpayer (probably ad nauseam). However, it does seem a curious approach and may yet cost the taxpayer a great deal of VAT.
When silence may not be golden... Graham Elliott comments on the Upper Tribunal decision in DPAS.
The terms of a contract are still the starting point for any analysis of the VAT position (viz Secret Hotels2 [2014] UKSC 16) and economic reality is compared with the terms of any contract to test its robustness of application to the VAT analysis. That means that VAT outcomes can depend considerably on an analysis based on contract law.
The latest appeal in the dental fees collection case, DPAS [2015] UKUT 0585, has emphasised this truth. The gist of the case was that the taxpayer changed the terms of the fee for a dental scheme so that its supply was made to the customer rather than the supplier. This was intended to change the nature of the service from that of collecting debts for the supplier (taxable) to that of facilitating payment for the customer (exempt). To my mind, that shift did nothing more or less than make sense of the existing transaction.
It seems that the First-tier Tribunal felt the same way, as it allowed the appeal against HMRC’s opposition to this and declared the payments exempt. The Upper Tribunal has reviewed this and, on one basis, has partly overturned this decision. My comments focus on this one point.
In order to create a new contract with the customer, the company wrote via the suppliers (dentists) to their customers, telling them of the change. The critical aspect is that it sought specific acceptance of the changes by means of a reply slip giving assent. But, it also told these people two things: the price would not change; and if they did not respond specifically stating non-acceptance of the change, they would be treated as having accepted, in any case, by virtue of silence.
Amazingly, 30% actually responded and ‘only’ 70% were silent.
The First-tier Tribunal accepted the argument that the silence of the 70% amounted to acceptance of the contractual change. This was vital, since a contract cannot be imposed upon a counter-party. It was this aspect that the Upper Tribunal did not accept. It said that silence was not enough under contract law. That foiled the change for the 70%.
I imagine there is enough in this to appeal on that point to a court that may be more expert than the Upper Tribunal in such matters. I wonder, though, whether a neater solution might have been to tell customers that a failure to respond risked an increase in their costs (owing to increased VAT). If I belonged to such a plan and received a letter telling me clearly that a ‘do nothing’ option was just as favourable for me as going to the effort of responding, I would sit on my hands. But told that unless I signed a slip of paper I might pointlessly incur higher charges, I would spend 15 seconds doing that.
I am not criticising anyone here, as I do not doubt that such points were debated by the taxpayer (probably ad nauseam). However, it does seem a curious approach and may yet cost the taxpayer a great deal of VAT.
