Out-Law Guide | 25 Jun 2008 | 9:54 am | 4 min. read
Trader Media Group Limited v Revenue and Customs
Trader Media Group operated the Auto Trader website, which included an area that enabled customers to obtain quotes for car insurance from a panel of insurers. This "insurance centre" was run by an independent insurance intermediary, Budget Insurance Services Limited, using its trading name, Compare the Market.
Customers using the insurance centre would click on the "get a quote" button, which opened a co-branded Auto Trader and Compare the Market page. They would then answer a series of questions set by Budget and would be able to arrange their cover immediately by clicking on one of the quotes that appeared in a comparison table.
The relationship between Trader Media and Budget was governed by an Introducer Agreement entered into in 2005. Under this agreement, Trader Media introduced prospective insurance clients via its Auto Trader website and received a fixed commission for each concluded insurance contract. Both parties took an active part in monitoring, developing and improving the online service.
The issue was whether the services Trader Media supplied to Budget fell within the VAT exemption.
Insurance and reinsurance are exempt from VAT under Directive 2006/112 (which replaced the Sixth VAT Directive on 1st January 2007). So are the services of an "insurance intermediary" when performed by insurance brokers and insurance agents. No definition is given of broker or agent, or of related services.
UK VAT legislation defines the services of an insurance intermediary as including the "bringing together", with a view to taking out insurance, persons seeking insurance and insurance providers, and the carrying out of work preparatory to the conclusion of the insurance contract.
Trader Media argued that the exemption applied because it was acting as an insurance agent or broker and it provided the services of an insurance intermediary in introducing people who wanted insurance with a view to the conclusion of a contract of insurance.
But HM Revenue and Customs said that Trader Media was only obliged under the agreement to provide a hyperlink and some branding. It did not conduct a regulated activity, nor was it authorised as an insurance intermediary under the Financial Services and Markets Act 2000. With no authority to bind the insurer or act on behalf of the proposer, it was no more than an introducer and so the exemption did not apply.
HMRC's arguments relied heavily on the London VAT Tribunal decision in InsuranceWide , where the tribunal held that a person operating a comparison website was merely an introducer and not an insurance agent.
The tribunal in that case found that the exemption requires the person to be both an insurance agent or broker and to be acting as an intermediary. InsuranceWide, the tribunal found, could not be distinguished from an introducer or advertiser. In particular, it had no authority to bind the insurer, which was one of the indicators of an "agency" relationship.
The tribunal held that the exemption applied.
In the absence of any definition of insurance broker or agent in the Directive or UK VAT legislation, the tribunal turned to the definition of "insurance mediation" in the Insurance Mediation Directive 2002/92, which specifically includes activities of "introducing, proposing or carrying out other work preparatory to the conclusion of contracts of insurance…".
UK VAT legislation includes "bringing together" in the definition of the services of an insurance intermediary, but there is no simultaneous requirement for the introducing to be preparatory to the conclusion of the contact, as the Directive seems to suggest. In this sense, the tribunal thought the domestic legislation was broader.
HMRC guidance on the exemption emphasises that brokers and agents are defined in terms of what they do rather than what they are, and that the exemption does not only apply to professional brokers but also to other intermediaries making supplies of "related services".
Trader Media was providing intermediary services by bringing together parties with a view to taking insurance and, by virtue of providing such services, was an insurance agent or broker. As introducer, it was the first link in a chain of activities that ended with the conclusion of the contract of insurance.
It was not necessary for an intermediary to be authorised under FSMA to qualify for the VAT exemption. Nor did the intermediary need to have the power to bind the insurer or act for the proposer. The act of introducing or bringing together was sufficient to satisfy the legal requirement to be an intermediary.
The tribunal was also satisfied that Trader Media's activities went beyond advertising. It endorsed Budget, the quotation process and the panel of insurers to its customer base, was paid per take-up of insurance contract and actively collaborated with Budget on developing the service.
The decision focuses on what intermediaries do rather than what they are and, in doing so, widens the pool of those who might qualify for the VAT exemption.
But how to reconcile it with InsuranceWide, where the circumstances were similar but the tribunal held Insurancewide was not an insurance agent?
That case considered the definition of brokers and agents in Directive 77/92, which preceded (and was repealed in 2002 by) the Insurance Mediation Directive. The old Directive, although it refers to "bringing together", did so in the context of a "professional" relationship.
This tribunal commented "it is more helpful if one looks at the current Directive…which provides a more functional definition of insurance intermediary". The preamble to the Insurance Mediation Directive talks of "various types of persons" distributing insurance products.
In the view of this tribunal, "contemporary agents and brokers such as internet sellers, estate agents, travel agents and so on may play a more passive role, given the standard form questions, fixed contracts and online quotation but this does not mean they are not providing a service which is insurance mediation".
The case serves to highlight the fact that the difference between a "passive" introducer/advertiser and an "active" intermediary will often be very subtle.