Brabners v HMRC raises questions on the VAT of disbursements in the legal sector

A court case last year “Brabners v The Commissioners for HMRC” has raised a few concerns within the conveyancing industry of law firms.  Not unexpected when the firm in question was faced with a £68,000 VAT bill.

The main issue of the case was whether electronic searches should be classed as a disbursement or not when charging clients in conveyancing matters.  HM Revenue & Customs (HMRC) won the case as they said the firm was not just acting as agents in this regards as they may provide advice based on the results of the search.  The firm involved followed the guidance from the Law Society’s practice note on VAT on disbursements and no doubt other firms have done the same.  The Law Society is looking at amending its practice note on VAT on disbursements in light of this case and will issue updated guidance, as yet this is still outstanding.  The website does state though that the advice in the practice note has not been discussed or agreed with HMRC and is not binding upon HMRC, therefore it can be challenged by HMRC.

There is very much a feel of “wait and see” regarding how this may affect the legal profession as a whole, in the meantime, it may be the safest option to treat searches as a vatable recharge rather than a disbursement, to avoid any repercussions following the decision in this case.

HMRC also implemented changes to the way Local Authorities should be charging VAT, these had an implementation date of no later than 31 March 2017. Therefore you should already be seeing Local Authorities charging VAT on searches

Even if the local authority is not charging VAT on disbursements, HMRC’s approach based on the Brabners case is that the firm cannot treat the searches as disbursements and therefore VAT should be charged by the firm.

Contact us if you have any queries regarding the above or need any assistance.