Technical Officer Association of Tax Technicians
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VAT: HMRC reverses baby scan rulings

Following the taxpayer win at first-tier tribunal in Window To The Womb HMRC has revised its guidance. Emma Rawson explains what businesses should do now. 

20th Nov 2020
Technical Officer Association of Tax Technicians
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Baby scan

As I reported in Baby’s first picture is VAT free, in Window To The Womb (TC07687) the FTT found that several different pregnancy scan packages were medical care, and therefore exempt from VAT.

Following that decision, HMRC issued Brief 17 (2020): VAT liability of private sonography services - to clarify its position on the VAT liability of similar scans.

HMRC’s view

The brief confirms that HMRC has accepted the tribunal decision in Window to the Womb, and will not appeal it. This means that other businesses supplying scanning services can also exempt their supplies, provided they meet the following two conditions:

  • the services are provided by an appropriately qualified health professional (see para 2.1 of VAT Notice 701/57); and
  • they are medical care, which means that they must have a primary purpose that is the protection, maintenance or restoration of the health of the person concerned (the primary purpose test).

It was only the second of these conditions that was considered in Window to the Womb, but it should not be forgotten that both tests need to be met for the VAT exemption to apply.

The brief also invites those that may have received an HMRC ruling prior to that decision, which they now believe to be incorrect, to seek a corrected ruling and a refund of any overpaid tax.

What should businesses do?

Whilst HMRC’s clarification is welcome, it should not be assumed that any business providing pregnancy scans will now qualify for exemption. Given the fact-specific nature of the Window to the Womb decision, businesses need to look closely at the services they provide, including the purpose of the scans and who carries them out.

In coming to their decision, the FTT looked in great detail at the exact services offered by Window to the Womb under each scan package, including what the customer received, whether a similar service was available on the NHS and the various cost components.

In particular, the FTT placed great weight on the provision of a detailed medical report with every scan. If a business merely provides scanning images without this element, it may be difficult to argue that they are providing medical care and therefore qualify for exemption.

New rulings

If a business previously received a ruling from HMRC that their services were VATable but believes - following HMRC’s brief 17/2020 - that those services may now be exempt, they can apply for a new, corrected ruling. HMRC says that requests will be considered provided they are properly evidenced.

In particular, those applying for a new or updated ruling will need to be able to show:

  • That the services were performed by appropriately qualified professionals (or others who were under the direct supervision of such professionals); and
  • The primary purpose test was met.

It is likely to be the second of these points which is most difficult to evidence.

Overpayment correction

If a business has accounted for too much VAT, they can correct this using the normal error correction procedure. However, such adjustments are subject to the normal four-year cap which starts from the end of the accounting period in which the error was made. It therefore makes sense to move as quickly as possible when you think a VAT correction is required.

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By seeroo
23rd Nov 2020 09:47

The reasoning here is flawed. There are many women who have had miscarriages who are not offered scans on the NHS until they are in pain and bleeding. Sometimes they won't do scans for bleeding so the only option is to pay for a private scan. The NHS reasoning being that if you are miscarrying then there is nothing they can do to stop it however this leaves women carrying unviable pregnancies for 12 weeks which could have been treated. You have to have had 3 miscarriages before the NHS will do early reassurance scans or investigations.

The scans offered from places like window to the womb are usually marketed as just to see your baby but they have the dual purpose of finding a heartbeat. If no heartbeat is found these women can then seek further treatment on the NHS. They wouldn't necessarily get a medical report but it's clear to see from the screen whether the pregnancy is viable.

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