VTAXPER36740 | Agency and disbursements: how to distinguish agency: the agreement

Having gathered all the information together, you should start by looking at the agreement between the two parties. If no written agreement exists, proceed directly to VTAXPER36820. If a written agreement does exist, it must be clear from the reading of it that both parties have consented to act as agent and principal. When examining the agreement, bear in mind that a trader cannot be an ‘agent for VAT purposes’. He is either an agent or he is not, and the use of such phrases should lead you to question very seriously whether the agreement reflects the reality of the situation.

The Court of Appeal’s decision in P and R Potter ([1984] STC 290/ [1985] STC 45) demonstrates that terminology is not the main factor in determining whether agency does or does not exist. Here, the court noted that the words ‘agency’ and ‘commission’ were used, but found that these did not determine the issue. Instead, it adopted the approach of dividing the facts into pointers for and against agency, and reaching a balanced decision. This approach is very similar to the approach which we explain at VTAXPER36820 below.

To help you decide whether the agreement reflects the consent of both parties to an agent/principal relationship, proceed to VTAXPER36820.