Should conveyancers class search fees as disbursements?

It’s a tricky question and one that’s been attracting widespread interest and speculation as a result of the recent Brabners V The Commissioners for HMRC case.

This particular case has really caused a stir within the world of conveyancing as it questioned whether or not electronic searches should be classed as disbursements when charging conveyancing clients.

Brabners V The Commissioners – a quick case overview

Brabners argued that these searches should be classed as disbursements because they are conducted at their clients’ request and the search reports belong to their clients. All solicitors have historically treated this cost as a disbursement that’s incurred on behalf of the client, which means it isn’t subject to VAT.

However, HMRC challenged this practice by arguing that these searches form part of the overall service that’s provided by solicitors and should therefore be subject to VAT.

Last month (September), the judge concluded that search fees should not be treated as disbursements and are therefore liable for VAT to be charged. The decision was based on the fact that Brabners prepares separate reports on the search results and is therefore using the search information as part of its overall service. As a result, Brabners were liable to pay more than £68,000 in VAT.

What does the ruling mean for conveyancers?

Ideally, solicitors need to err on the side of caution. This particular case may potentially be appealed as it appears to directly contradict the principles previously agreed between HMRC and The Law Society.

The Law Society has stated that it’s currently considering the implications of the case findings and intends to provide solicitors with updated advice as soon as possible.

Until that guidance is given and a clear outcome has been reached, the best option for solicitors is to make sure they don’t treat search fees as disbursements. If they do, they run the risk of potentially becoming the next Brabners and having to pay thousands of pounds in unpaid VAT in the process.

If you’re unsure about what the recent ruling means for your business or would like some more advice about the situation, contact VAT Specialists on 01905 777600 or hello@ormerodrutter.co.uk.

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