Deeks VAT News issue 39

Welcome to this months Newsletter December 2023 issue 39 Keeping you up to date on VAT changes     In this months newsletter we cover the following:   Changes to the DIY Housebuilders’ Scheme Best Judgement: what is it, and why is it important?  Updated guidance on zero-rated exports  New rules for registration and reporting in the EU […]

Welcome to this months Newsletter

December 2023 issue 39

Keeping you up to date on VAT changes    

In this months newsletter we cover the following:  

Changes to the DIY Housebuilders’ Scheme

Best Judgement: what is it, and why is it important? 

Updated guidance on zero-rated exports 

New rules for registration and reporting in the EU from 1 January 2025 

What is culture? The Derby Quad case 

Revoke an option to tax after 20 years have passed – update 

A VAT Did you know? 

We know that size matters for VAT – If you buy a small amount of bicarbonate of soda it is VAT free. However, bigger tubs are VATable. 

Changes to the DIY Housebuilders’ Scheme 

The DIY Housebuilders’ Scheme  is a tax refund mechanism for people who build, or arrange to have built, a house they intend to live in. It also applies to converting commercial property into a house(s). This puts a person who constructs their own home on equal footing with commercial housebuilders. There is no need to be VAT registered in order to make the claim. 

The Scheme can be complex, but Deeks VAT Consultancy can guide you through the maze.

The Changes 

From 5 December 2023, the follow changes apply: 

  • claimants will be allowed to submit claims electronically 
  • the deadline for making claims will be extended to six months (from three) 
  • the list of documents required to support a claim has been amended 
  • a new requirement for additional evidence when a derelict building has been converted into dwelling(s) – to be made on a specific form 

These changes are set out in The Value Added Tax (Refunds to “Do-It-Yourself” Builders) (Amendment of Method and Time for Making Claims) Regulations 2023 and guidance is provided by HMRC here

The new deadline applies to claims made on, or after 5 December 2023. The deadline, broadly, begins when a dwelling is complete.

Best Judgement: what is it, and why is it important? 

If HMRC carry out an inspection and decide that VAT has been underdeclared (eg: either by understating sales, applying the incorrect VAT rate, or overclaiming input tax) an inspector has the power to issue an assessment to recover VAT that it is considered underdeclared. This is set out in The VAT Act 73(1) 

“Where a person has failed to make any returns … or where it appears to the Commissioners that such returns are incomplete or incorrect, they may assess the amount of VAT from him to the best of their judgment and notify it to him”. 

So, the law requires that when an inspector makes an assessment (s)he must ensure that the assessment is made to the best of their judgement, otherwise it is invalid and will not stand. 

Definition of best judgment 

Per Van Boeckel vs HMCE (1981) the judge set out three tests: 

  1. HMRC must make a value judgment on the material set before it honestly and bona fide and not knowingly set an inflated figure and then expect the taxpayer to disprove it on appeal 
  2. there must be material available 
  3. HMRC is not expected to do the work of the taxpayer but instead fairly interpret the material before it and come to a reasonable conclusion rather than an arbitrary one 

If any of these three tests are failed, then best judgement has not been employed. However, the onus is on the appellant to disprove the assessment. 

There were further comments on the matter: 

“There are…obligations placed on the Commissioners to properly come to a view on the amount of tax that was due to the best of their judgement. In particular: 

  • a value judgement must be made on the material put before them 
  • they must perform their function honestly 
  • there must be material on which to base their judgement 
  • but they should not be required to do the job of the taxpayer, or carry out           extensive investigations 

This means that the assessing inspector must fairly consider all material placed before them and, on that material, come to a decision that is reasonable and not arbitrary, taking into account the circumstances of the business. In some cases, some “guesswork” may be required, but it should be honestly made based on the information available and should not be spurious, but HMRC must be permitted a margin of discretion. 

Experience insists that it is usually more successful if the quantum of a best judgement assessment is challenged. 

Where a business successfully disputes the amount of an assessment and the assessment is reduced, it will rarely fail the best judgement test. 

In the case of MH Rahman (Khayam Restaurant) CO 2329/97 the High Court recognised the practice whereby the tribunal adopts a two-step approach, looking initially at the question of best judgement and then at the amount of the assessment. The message of the High Court appeared to be that the Tribunal should concern itself more with the amount of an assessment rather than best judgement. 

Arguments which may be employed to reduce a best judgement assessment are, inter alia: 

  • period of calculation is unrepresentative 
  • wastage 
  • discounts 
  • staff use 
  • theft 
  • seasonal trends 
  • competition 
  • sales 
  • opening hours 
  • client base, etc 

HMRC’s guidance to its own officers states that: Any assessments made must satisfy the best judgement criteria. This means that given a set of conditions or circumstances, “you must take any necessary action and produce a result that is deemed to be reasonable and not arbitrary”. 

In other words, best judgement is not the equivalent of the best result or the most favourable conclusion. It is a reasonable process by which an assessment is successfully reached. 

In the case of CA McCourtie LON/92/191 the Tribunal considered the principles set out in Van Boeckel and put forward three further propositions: 

  • the facts should be objectively gathered and intelligently interpreted 
  • the calculations should be arithmetically sound, and 
  • any sampling technique should be representative 

Tribunals will not treat an assessment as invalid merely because they disagree as to how the judgement should have been exercised. It is possible that a Tribunal may substitute its own judgement for HMRC’s in respect of the amount of the assessment. However, this does not necessarily mean that because a different quantum for the assessment was arrived at that the assessment failed the best judgement test. 

Further, it is not the function of the Tribunal to engage in a process that looks afresh at the totality of the evidential material before it (M & A Georgiou t/a Mario’s Chippery, QB October 1995 [1995] STC 1101). 

It should be also noted that even if one aspect of an assessment is found not to be made to best judgement this should not automatically invalidate the whole assessment – Pegasus Birds [2004] EWCA Civ1015. 


There are significant difficulties in arguing that an inspector did not use best judgement and it is a high bar to get over. 

In order to succeed on appeal, it would be required to be demonstrated, to the judge’s satisfaction, that the assessment was raised: 

  • dishonestly 
  • vindictively 
  • capriciously 
  • arbitrarily 
  • spuriously 
  • via an estimate or a guess in which all elements or best judgement are absent 
  • wholly unreasonably 

and that this action applies to the assessment in its entirety. 

Updated guidance on zero-rated exports 

HMRC’s Public Notice 703 has been updated. The Notice sets out how and when a business can apply zero-rate exported goods. 

The changes are: Information on the types of fuel that the Extra Statutory Concession 9.2 does not apply to, and when you cannot zero rate the export of a motor vehicle has been updated. 

And: Information on evidence relating to zero rating and direct exports – paragraphs 6.1, 6.5, 7.3 and 7.4. 

New rules for registration and reporting in the EU from 1 January 2025 

EU Member States have agreed to extend similar VAT registration thresholds utilised by domestic businesses to EU non-resident taxpayers. 

VAT scheme for Small Businesses 

New simplification rules will open the VAT exemption to small businesses established in other member states and help reduce VAT compliance costs. The new regime should reduce red tape and administrative burdens for SMEs and create a level playing field for businesses regardless of where they are established in the EU. The new VAT scheme for SMEs will apply from 1 January 2025. 

The new scheme 

Current rules on the exemption of supplies under a certain threshold: 

  • Member States are allowed to exempt supplies by small enterprises with an annual turnover not exceeding a given threshold, different in each Member State. 
  • Small enterprises not established in a certain Member State have, however, no access to such an exemption. 

New rules on the exemption of supplies under a certain threshold 

  • Member States will be allowed to continue exempting small businesses with an annual turnover not exceeding a given threshold, which cannot be higher than € 85,000 (maximum exemption threshold). 
  • The new rules will open the exemption to small enterprises established in other Member States than the one in which the VAT is due. The exemption will apply if the turnover in Member State where the SME is not established is below the national threshold and if the annual turnover in all of the EU is below €100,000. This is a safeguard threshold preventing companies with large turnover to benefit from the SME exemption in other Member States. For this purpose, SMEs will be able to use the single registration window in their own Member State. 

The new rules will provide exempt SMEs with simplifications in terms of registration and reporting. These rules should reduce the overall VAT compliance costs for SMEs by up to 18% per year.   

What is culture? The Derby Quad case 

Latest from the courts 

In the Derby Quad Ltd First-Tier tribunal (FTT) case the issue was whether the appellant’s supplies of admission to a screening were of a theatrical performance which would be cultural and exempt, or akin to a cinema presentation which is standard rated. 


A RSC live performance of The Tempest performed at Stratford-upon-Avon was live screened at The Quad venue in Derby by way of a broadcast – A so-called live event performed by a company other than DQ. The Quad is a comprehensive creative centre with indie cinema, art gallery, café-bar and event spaces for hire. DQ pays theatre companies a percentage of the proceeds from ticket sales to the screenings, and a small flat fee per simultaneous screening to help offset the satellite transmission costs. 

The core of the dispute was whether the live events were a ‘live performance’ as required by The VAT Act 1994, Schedule 9, Group 13 item 2(b) for exemption. 

The Arguments 

The appellant contended that a live event was different from a cinematic film where the admission price is subject to VAT – it is an “experience”. The event is thought of as an experience on its own and is of artistic merit. It allows for audience participation and interaction even remotely. 

To support this, it was stated that 84% percent of audiences “felt real excitement” because they knew the performance was being broadcast live that evening. Watching the show with others was also an important factor. Audiences tended to applaud at the end of the screening, and they appear to feel connected to the performance and the audience. Further, the majority of audiences attending live events enjoyed the collective experience of watching as a group. This differs from audiences at cinemacasts of films and or recordings who typically watch as an individual or as a couple. 

HMRC’s position was that admission charges to cinematic performances, and to live performances broadcast from other locations, were taxable. 


The differences in the experiences of members of the audience and the actors/performers between a live theatre performance and at a live event are ones of kind, and not just degree, as they go to the essence of what makes and constitutes a theatrical performance and require interaction. A live event is, consequently, not capable of being a ‘theatrical performance’. 

The actors in Stratford would receive no feedback from the audience in The Quad in a way they would from the audience at the live ‘physical’ event. 

The FTT found that this is not a modern variant of a theatre performance, and the appeal was dismissed. 


An interesting case which highlights the fact that subtle variations of supplies, and their interpretations can significantly affect the VAT outcome. In light of technical advances in this area we will need to watch how the definition of ‘theatrical performances’ develops.  

Revoke an option to tax after 20 years have passed – update 

HMRC’s Form VAT1614J has been updated. This form is used to revoke an option to tax (OTT) land or buildings for VAT purposes after 20 years have passed. There is a new address to which the form and supporting documents are sent: 


HM Revenue and Customs 

BX9 1WR 

Scanned copies of the form can be emailed to:   

Background: Revoking an option where more than 20 years have elapsed since it first had effect. 

A business may revoke an OTT without prior permission from HMRC where more than 20 years have elapsed since the option first had effect. This is done by submitting the Form VAT1614J. 

When the OTT first has effect: An OTT first had effect on the day it was exercised, or any later day that was specified when opting to tax. 

Who can revoke: The relevant guidance VAT Notice 742A – which has the force of law here states that the ‘Taxpayer’ can revoke the OTT. The taxpayer is defined as the person who exercised the option to tax or is treated as making that option by virtue of a real estate election. 

When the revocation will take effect: The revocation will take effect from the day that the taxpayer specifies when HMRC is notified, but this cannot be any earlier than the day on which the taxpayer notifies HMRC. 

Outcomes of revoking an Option To Tax 

  • any income (rent or sale) relating to the property becomes exempt 
  • any input tax relating to the property is not recoverable (subject to the de minimis rules) 
  • if no other taxable supplies are made a business must deregister 

Revocation of option: The VAT Act 1994, Schedule 10, 25(1)(a). 

As always thankyou for reading this months newsletter and if you have any queries or have the need for and VAT or Tax advice please dont hestitate to contact:


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