Uber and VAT

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Discussion

anonymous-user

Original Poster:

54 months

Saturday 1st April 2017
quotequote all
Maugham, and others, have made plenty of noise about this for quite a few months now.

HMRC could already be dealing with this, as it does, initially behind closed doors. The first we would likely know about that would probably be a publication of a FTT decision, or VAT suddenly appearing on uber invoices

Edited by anonymous-user on Saturday 1st April 08:05

anonymous-user

Original Poster:

54 months

Monday 3rd April 2017
quotequote all
A small update on the case

https://www.crowdjustice.org/case/uber/ (click on case updates)

Extract

".... we are in a position to commence proceedings against Uber. The legislation gives Uber a period of time to provide us with a VAT receipt - until the middle of this month - and this means we can't sue it until that period of time has run out. But we will not drag our heels. Last week - even before the fundraising target was hit - I asked the barrister team to start drafting the claim again Uber and I hope and expect we will be in a position to start proceedings against them in the High Court before the end of the month. ...."

johnfm

13,668 posts

250 months

Monday 3rd April 2017
quotequote all
I may be missing something here.

Uber says "we are not registered for VAT, so we do not issue VAT receipts".

Is it a court's job to then determine if they should or should not be VAT registered, without the usual enforcement from HMRC?

As a matter of fact, Uber are not VAT registered. As such, they have no obligation to issue a VAT receipt.

Is the court to do the job of HMRC?

I cannot imagine how this would work if, say, I suspected the company doing the IT services for my company were not VAT reg'd when they should be. I'd expect to infomr HMRC and then one might expect HMRC would enforce the relevant laws - and so if Uber are not registered when they should be registered the same enforcement is applied as it would to Tom the plumber or Jolyon the working class barrister.

anonymous-user

Original Poster:

54 months

Monday 3rd April 2017
quotequote all
johnfm said:
I may be missing something here.

Uber says "we are not registered for VAT, so we do not issue VAT receipts".

Is it a court's job to then determine if they should or should not be VAT registered, without the usual enforcement from HMRC?

As a matter of fact, Uber are not VAT registered. As such, they have no obligation to issue a VAT receipt.

Is the court to do the job of HMRC?

I cannot imagine how this would work if, say, I suspected the company doing the IT services for my company were not VAT reg'd when they should be. I'd expect to infomr HMRC and then one might expect HMRC would enforce the relevant laws - and so if Uber are not registered when they should be registered the same enforcement is applied as it would to Tom the plumber or Jolyon the working class barrister.
That is the point Jolyon is trying to make with the case isn't it?

That HMRC should be dealing with this, but that we don't know if it is, or isn't, doing so.

Not even Wes Streeting MP, as a member of the Treasury Select Committee seems to know (or be able to find out) if HMRC is looking at this.

And, on the basis that Jolyon believes that he has sufficient evidence that Uber should be VAT registered, he is prepared to take it to court (with other people's money) as a way of starting a process by which Uber's liability (or lack of) to register for VAT does get examined - in as public a way as possible.

Asking for a VAT receipt is the initial step in that process (done already). Jumping straight to the HC if a VAT receipt is not forthcoming is a big step, but one that he is perfectly entitled to attempt to do.

If it makes it to trial, it could go nowhere very quickly, or it could become something of a landmark case for a number of reasons.

essayer

9,075 posts

194 months

Monday 3rd April 2017
quotequote all
Interested to know legally how you can force someone to give you 'a receipt'
Is there some law or regulation ?

anonymous-user

Original Poster:

54 months

Monday 3rd April 2017
quotequote all
essayer said:
Interested to know legally how you can force someone to give you 'a receipt'
Is there some law or regulation ?
In cases where there is a VAT element to the cost, then yes, there is indeed a legal requirement to issue a receipt.

Generally speaking, a VAT invoice / receipt must be issued within 30 days of the date of the supply of the goods / service, or the date of payment.

It isn't a link to the specific legislation, but there is a bit about it here https://www.gov.uk/vat-record-keeping/vat-invoices

johnfm

13,668 posts

250 months

Monday 3rd April 2017
quotequote all
JPJPJP said:
essayer said:
Interested to know legally how you can force someone to give you 'a receipt'
Is there some law or regulation ?
In cases where there is a VAT element to the cost, then yes, there is indeed a legal requirement to issue a receipt.

Generally speaking, a VAT invoice / receipt must be issued within 30 days of the date of the supply of the goods / service, or the date of payment.

It isn't a link to the specific legislation, but there is a bit about it here https://www.gov.uk/vat-record-keeping/vat-invoices
Surely ONLY if you are registered for VAT.

You cannot issue a VAT receipt and collect VAT if you're not registered to do so.

My point is surely the 'correct' procedure is to notify HMRC.

Jolyon has an invoice (with no VAT) for his expenses. He hasn't paid any VAT to reclaim in his VAT return.

Does the court have standing to intervene at all in a matter between Uber and HMRC? There is no matter to determine between Uber and Jolyon, as they are not VAT registered so have no obligation to issue him a VAT receipt.

anonymous-user

Original Poster:

54 months

Monday 3rd April 2017
quotequote all
johnfm said:
Surely ONLY if you are registered for VAT.

You cannot issue a VAT receipt and collect VAT if you're not registered to do so.

My point is surely the 'correct' procedure is to notify HMRC.

Jolyon has an invoice (with no VAT) for his expenses. He hasn't paid any VAT to reclaim in his VAT return.

Does the court have standing to intervene at all in a matter between Uber and HMRC? There is no matter to determine between Uber and Jolyon, as they are not VAT registered so have no obligation to issue him a VAT receipt.
I have no idea at all of the mechanism by which Jolyon and his representatives expect to be able to turn that defence: "Uber isn't VAT registered and there is, therefore, no VAT receipt" into a broader discussion about whether or not Uber should be VAT registered and what options the HC has to hear those discussions, or to produce any substantive judgment as a result.

But that seems to be the intention

Alpinestars

13,954 posts

244 months

Monday 3rd April 2017
quotequote all
johnfm said:
I may be missing something here.

Uber says "we are not registered for VAT, so we do not issue VAT receipts".

Is it a court's job to then determine if they should or should not be VAT registered, without the usual enforcement from HMRC?

As a matter of fact, Uber are not VAT registered. As such, they have no obligation to issue a VAT receipt.

Is the court to do the job of HMRC?

I cannot imagine how this would work if, say, I suspected the company doing the IT services for my company were not VAT reg'd when they should be. I'd expect to infomr HMRC and then one might expect HMRC would enforce the relevant laws - and so if Uber are not registered when they should be registered the same enforcement is applied as it would to Tom the plumber or Jolyon the working class barrister.
HMRC may or may not be looking at this. That's a matter between the taxpayer and HMRC. The plaintiff will not be privy to that. However what the plaintiff is entitled to is a VAT invoice if Uber provides VATable services. Given it has not provided a VAT invoice, and the plaintiff believes it should do, he is taking them to Court. A ruling in the favour of the plaintiff would force HMRCs hand.

Alpinestars

13,954 posts

244 months

Monday 3rd April 2017
quotequote all
JPJPJP said:
In cases where there is a VAT element to the cost, then yes, there is indeed a legal requirement to issue a receipt.

Generally speaking, a VAT invoice / receipt must be issued within 30 days of the date of the supply of the goods / service, or the date of payment.

It isn't a link to the specific legislation, but there is a bit about it here https://www.gov.uk/vat-record-keeping/vat-invoices
This is covered by The VAT Regulations 1995. Whilst strictly the law applies to taxable businesses, Uber is not registered as being taxable.

It shouldn't be forgotten that Uber lost its GST (VAT) case in Australia last year.

anonymous-user

Original Poster:

54 months

Monday 3rd April 2017
quotequote all
There are some parallels between the Aussie case and this one, as well as some differences.

For anyone so inclined, the judgment in that case is here

http://www.judgments.fedcourt.gov.au/judgments/Jud...

The likely outcome is that all Uber drivers in Aus are to register for GST.

johnfm

13,668 posts

250 months

Tuesday 4th April 2017
quotequote all
Alpinestars said:
johnfm said:
I may be missing something here.

Uber says "we are not registered for VAT, so we do not issue VAT receipts".

Is it a court's job to then determine if they should or should not be VAT registered, without the usual enforcement from HMRC?

As a matter of fact, Uber are not VAT registered. As such, they have no obligation to issue a VAT receipt.

Is the court to do the job of HMRC?

I cannot imagine how this would work if, say, I suspected the company doing the IT services for my company were not VAT reg'd when they should be. I'd expect to infomr HMRC and then one might expect HMRC would enforce the relevant laws - and so if Uber are not registered when they should be registered the same enforcement is applied as it would to Tom the plumber or Jolyon the working class barrister.
HMRC may or may not be looking at this. That's a matter between the taxpayer and HMRC. The plaintiff will not be privy to that. However what the plaintiff is entitled to is a VAT invoice if Uber provides VATable services. Given it has not provided a VAT invoice, and the plaintiff believes it should do, he is taking them to Court. A ruling in the favour of the plaintiff would force HMRCs hand.
If I provide VATable services or goods to you, but I am not required to be registered for VAT (for example I don't hit the VAT threshold for turnover) - you are not entitled to a VAT invoice and I do not need to provide you with a VAT receipt.

If I should be registered for VAT (lets say I do exceed the threshold but still don't register either in error or fraudulently) surely that is some sort of contravention of the relevant tax code obligation and HMRC have a remedy by following the appropriate procedure in a case where a person who meets the requirements for VAT but fails to register.

In any event, I cannot see why a court would have any jurisdiction to decide if Uber should or should not be registered.

Jolyon "I want a VAT receipt, because I think they should be VAT registered".

Court "They are not VAT registered, and so have no obligation or right to issue a VAT receipt. Bye."

Alpinestars

13,954 posts

244 months

Tuesday 4th April 2017
quotequote all
johnfm said:
If I provide VATable services or goods to you, but I am not required to be registered for VAT (for example I don't hit the VAT threshold for turnover) - you are not entitled to a VAT invoice and I do not need to provide you with a VAT receipt.

If I should be registered for VAT (lets say I do exceed the threshold but still don't register either in error or fraudulently) surely that is some sort of contravention of the relevant tax code obligation and HMRC have a remedy by following the appropriate procedure in a case where a person who meets the requirements for VAT but fails to register.

In any event, I cannot see why a court would have any jurisdiction to decide if Uber should or should not be registered.

Jolyon "I want a VAT receipt, because I think they should be VAT registered".

Court "They are not VAT registered, and so have no obligation or right to issue a VAT receipt. Bye."
I will start by saying I have not seen the points of law on which the guy is taking Uber to court. Under the VAT regs, a taxable person has to supply a VAT invoice, and it's pretty easy to see that if the person does not supply an invoice, the recipient of the service could enforce. In this case, we have a business that says it is not supplying taxable services, and therefore does not need to supply a VAT invoice. Uber argues the supply is made by the drivers. It may therefore be the case that the plaintiff is taking Uber to court, because ostensibly he wants a VAT invoice (without which he cannot accurately calculate his input VAT and taxable income), but in order to get to that position, it may be a contractual argument as to who he is contracting with. So maybe there are 2 legs to this a) who is the "contract" with, and b) should he be entitled to a VAT invoice. He cannot force HMRC to deal with the matter, but he can take someone to Court for not giving him what he may be entitled to under (VAT) law.

Just because HMRC deal with VAT matters, does not mean someone cannot take a supplier to Court over a tax matter.

johnfm

13,668 posts

250 months

Tuesday 4th April 2017
quotequote all
Alpinestars said:
I will start by saying I have not seen the points of law on which the guy is taking Uber to court. Under the VAT regs, a taxable person has to supply a VAT invoice, and it's pretty easy to see that if the person does not supply an invoice, the recipient of the service could enforce. In this case, we have a business that says it is not supplying taxable services, and therefore does not need to supply a VAT invoice. Uber argues the supply is made by the drivers. It may therefore be the case that the plaintiff is taking Uber to court, because ostensibly he wants a VAT invoice (without which he cannot accurately calculate his input VAT and taxable income), but in order to get to that position, it may be a contractual argument as to who he is contracting with. So maybe there are 2 legs to this a) who is the "contract" with, and b) should he be entitled to a VAT invoice. He cannot force HMRC to deal with the matter, but he can take someone to Court for not giving him what he may be entitled to under (VAT) law.

Just because HMRC deal with VAT matters, does not mean someone cannot take a supplier to Court over a tax matter.
So, he takes Uber to court, they will likely say:

Jlyon working class QC has no contract with Uber UK. We are a disclosed agent of the driver, merely provide a free booking service as agent and Jolyon working class QC has contracted with the driver (as the Transport Provider as Principal).

If driver makes less than the threshold annual earnings and so is not a registered person for the purposes of the Value Added Tax Regulations 1995, Jolyon working class QC has no right to a VAT receipt.

The court may take a view on who the contract is with. But, Uber T&Cs are clear that Uber UK is a disclosed agent acting on behalf of the driver. Would a court deem these are unfair contract terms? You'd think a QC would have read the T&Cs and realised he has no contractual relationship with the party he has issued proceedings against.




Alpinestars

13,954 posts

244 months

Tuesday 4th April 2017
quotequote all
johnfm said:
So, he takes Uber to court, they will likely say:

Jlyon working class QC has no contract with Uber UK. We are a disclosed agent of the driver, merely provide a free booking service as agent and Jolyon working class QC has contracted with the driver (as the Transport Provider as Principal).

If driver makes less than the threshold annual earnings and so is not a registered person for the purposes of the Value Added Tax Regulations 1995, Jolyon working class QC has no right to a VAT receipt.

The court may take a view on who the contract is with. But, Uber T&Cs are clear that Uber UK is a disclosed agent acting on behalf of the driver. Would a court deem these are unfair contract terms? You'd think a QC would have read the T&Cs and realised he has no contractual relationship with the party he has issued proceedings against.

Out of interest, have you seen the QC's opinion or the application to the Court?

The T&Cs didn't stop the employment tribunal or the ATO ruling against Uber, rulings which direct contracting an agency position.

Murph7355

37,717 posts

256 months

Tuesday 4th April 2017
quotequote all
Alpinestars said:
This is not personal, so don't make it personal.

Can you set out clearly, on what basis the plaintiff would take HMRC to court on this?
You introduced the point that your friend is a cabbie whose business has been decimated by Uber. I asked a reasonable question in that context - there has to be some motivation to the lawyer pushing this over and above him wanting to claim the VAT back on a taxi journey. You're free not to answer it of course. But you brought it closer to home for yourself (I have no dog in the fight).

Ref HMRC, "court" was too literal. If HMRC felt there was a case to answer they would 100% be enforcing against Uber or planning to do so.

If HMRC don't have the resources to do this, it is not IMO private individuals' responsibility to step into the breach and start suing people. The lawyer may well think he is due a receipt from Uber, but Uber are not VAT registered so he wouldn't appear to be. Moreover that is the thinnest of thin veils being used here as no right minded individuals would risk £75k on a court case for a cab fare.

The precedent this sets seems dangerous to me. Depending on who the lawyer's backers are the rationale may already be highly dubious IMO. I'm with johnfm - if people have a beef on the VAT front, report it to HMRC.

johnfm

13,668 posts

250 months

Tuesday 4th April 2017
quotequote all
Alpinestars said:
johnfm said:
So, he takes Uber to court, they will likely say:

Jlyon working class QC has no contract with Uber UK. We are a disclosed agent of the driver, merely provide a free booking service as agent and Jolyon working class QC has contracted with the driver (as the Transport Provider as Principal).

If driver makes less than the threshold annual earnings and so is not a registered person for the purposes of the Value Added Tax Regulations 1995, Jolyon working class QC has no right to a VAT receipt.

The court may take a view on who the contract is with. But, Uber T&Cs are clear that Uber UK is a disclosed agent acting on behalf of the driver. Would a court deem these are unfair contract terms? You'd think a QC would have read the T&Cs and realised he has no contractual relationship with the party he has issued proceedings against.

Out of interest, have you seen the QC's opinion or the application to the Court?

The T&Cs didn't stop the employment tribunal or the ATO ruling against Uber, rulings which direct contracting an agency position.
Not for this, no. But had a quick look at the ET judgment. WIll be interesting how the appeal goes. Will have a read of the ATO and other bits.

I have no vested position either way - but it will be a backward step for passengers if it snuffs out Uber and other Uber-style services on this basis.


Alpinestars

13,954 posts

244 months

Tuesday 4th April 2017
quotequote all
Murph7355 said:
You introduced the point that your friend is a cabbie whose business has been decimated by Uber. I asked a reasonable question in that context - there has to be some motivation to the lawyer pushing this over and above him wanting to claim the VAT back on a taxi journey. You're free not to answer it of course. But you brought it closer to home for yourself (I have no dog in the fight).

Ref HMRC, "court" was too literal. If HMRC felt there was a case to answer they would 100% be enforcing against Uber or planning to do so.

If HMRC don't have the resources to do this, it is not IMO private individuals' responsibility to step into the breach and start suing people. The lawyer may well think he is due a receipt from Uber, but Uber are not VAT registered so he wouldn't appear to be. Moreover that is the thinnest of thin veils being used here as no right minded individuals would risk £75k on a court case for a cab fare.

The precedent this sets seems dangerous to me. Depending on who the lawyer's backers are the rationale may already be highly dubious IMO. I'm with johnfm - if people have a beef on the VAT front, report it to HMRC.
100% enforcing? Are you a tax practitioner and have the experience to know that?

Don't you think an individual should be able to get a VAT invoice where he believes he should? I know that's disingenuous, but that's the point of him doing it in a way which gives him the ability to challenge it legally. If he has a legal right, are you saying he shouldn't be able to exercise it?

Does the thickness of the veil matter? His real reason is to ensure Uber pays the tax he and apparently tax QC think it should pay. There is precedent for the tax point in Australia and the UK. So it's a fire with smoke.

One could argue the whole BEPS movement was brought about by people like the plaintiff who didn't like the tax arbitrage big corporations were taking advantage of.

Alpinestars

13,954 posts

244 months

Tuesday 4th April 2017
quotequote all
johnfm said:
Not for this, no. But had a quick look at the ET judgment. WIll be interesting how the appeal goes. Will have a read of the ATO and other bits.

I have no vested position either way - but it will be a backward step for passengers if it snuffs out Uber and other Uber-style services on this basis.
That may well be the case. But think about Uber's strategy. Come in cheap, get at least a cashflow advantage of some tax planning/avoidance, when that comes home to roost, the competition may have died, and then start thinking about making profits ergo, prices go up. The artificial arbitrage is the only issue I have with Uber.

anonymous-user

Original Poster:

54 months

Tuesday 4th April 2017
quotequote all
If you look at the parties involved in bringing the case, Jolyon Maugham QC, represented by Edwin Coe LLP with Opinion provided by George Peretz QC and Brendan McGurk

They are people and firms that know about VAT. That much is not in any doubt.

Until the case is heard, we aren't going to find out more than we know already, but I think it is a reasonable assumption that they have thought this through and do have a plan that is designed to cause the HC to nudge the question 'should uber be VAT registered?' Somewhere nearer to being addressed than it appears to be now.

There obviously has to be more to that plan than

"Give me a VAT receipt

The service provider is not & does not need to be VAT registered

OK, thanks for coming"

But I don't know what it is. I look forward to finding out and seeing how it unfolds.

Whilst the Emp Trib isn't directly translatable to VAT matters (& is subject to appeal), it did rule that Uber is the service provider, not the driver population.

My only dog in the fight is a donation to the crowd justice campaign.

I like the Uber model and technology in principal and, if it plays by the rules, I wish it great success. If it's success is built on an artificial price advantage attributable to an incorrect treatment of the business by HMRC, then that needs to be corrected one way or another.


Edited by anonymous-user on Tuesday 4th April 19:20