The ILFM recognise that there has been an increase in Member queries with regards to the VAT treatment of statutory charges such as land charges and land registry fees etc as a result of the Brabners First Tier Tribunal decision. For clarity, there is no change in the concession between the Law Society and HMRC (introduced in September 1994) where there is a statutory obligation imposed upon the client who receives and uses the statutory body’s supply. These types of charges are usually eligible to be treated as Disbursements for VAT purposes.
An example of this would be office copy entries obtained from the Land Registry, direct. Here the vendor has a statutory obligation imposed upon him/her to supply satisfactory documentary evidence to the purchaser of his/her title in the land for sale. Under the Land Registration Act 1925, the vendor must provide the purchaser with a copy of the entry on the register of title aka, office copy entry.
The Land Registration (Official Search) Rules 1993 prohibit the use of photocopies thus forcing the solicitor acting for the vendor to obtain physical copies of the clients title in the land for sale. Here, the supply from the Land Registry is to client and not the solicitor. The fee is met and paid by the solicitor as a matter of convenience only and may be passed on as is i.e. as a Disbursement for VAT purposes without output VAT.
Further examples of statutory charges are:
Court Fees
Estate Duty
Stamp Duty
Probate Fees
Incorporation fees
For further information and reading, there is an internal manual available on HMRC’s website which specifically addresses searches and solicitors. This can be obtained via the below link:
https://www.gov.uk/hmrc-internal-manuals/vat-taxable-person/vtaxper46000
As final note, when trying to ascertain whether a payment qualifies to be treated as a Disbursement for VAT purposes, the ILFM strongly recommends you follow the criteria as set out in HMRC’s Notice 700 25.1.1, questioning each payment and the circumstance in which it was incurred and more importantly, questioning who received, used and benefited from the third party supply i.e. is it the practice or the client? Unfortunately, a list of what is and what isn’t a Disbursement for VAT purposes cannot be easily drawn up as some payments can be either depending on the circumstances in which they were incurred. As seen from above, the office copy entry was incurred purely to prove to the purchaser that the vendor actually owns the property for sale. The solicitor was simply acting as agent for the vendor when making the payment to the Land Registry, thus the payment qualifies be treated as a Disbursement for VAT purposes.
Hi,
Are Chancel Indemnity Searches can be classed as disbursements or recharges?
Thanks
I agree with the previous post. And considering the matter further, the reality is that the solicitors do not simply pass the search to the client. They also use it to analyse their advise to their client. I.e if material info becomes apparent from the search, the solicitor has a duty to the client to advise or even highlight the finding.
The above was advised by the VAT inspector after an audit in a firm I used to work.
The court case backs that logic.
Therefore, I would strongly recommend that if ILFM are to advise members on tax issues proper advice is saught by the appropriate body.
Best wishes,
Ada
I clearly recall on attending a VAT course some years ago with ILFM that the female heading up the course at that time instructed that HMLR search fees were subject to VAT on billing to client, whereas HMLR registration fees were not. She made some quip about HMRC catching up at some point. I have never, until today's note, been told otherwise. So, if I am reading correctly, HMLR search fees are a disbursement for the purpose of VAT without being subject to VAT when billing to client?
Dear Janet,
Please see HMRC’s internal manual re Land Registry Searches, below. This has not changed and was actually referred to by HMRC in the Brabner’s case.
https://www.gov.uk/hmrc-internal-manuals/vat-taxable-person/vtaxper46000
https://www.gov.uk/hmrc-internal-manuals/vat-taxable-person/vtaxper47000
If the solicitor/fee earner is simply obtaining a document like an Office Copy Entry and passing it to a third party as there is a statutory obligation imposed upon his client to do so, then the payment qualifies to be treated as a Disbursement for VAT Purposes as the supply of the statutory body is the client and not the solicitor.
Unfortunately, each payment and the circumstances in which it was incurred must be first ascertained before you decide if a payment qualifies to be Disbursement for VAT purposes or Recharged Overhead. You need to ascertain who is receiving, using and benefiting from the third party supply - the solicitor or the client? You can’t simple draw up a list of each as some can be either depending on the circumstances in which they were incurred.