Followers of the Uber saga will remember this post, in which I explained why I was suing Uber for a VAT invoice, a case that could well end up costing Uber over £1 billion in VAT and interest.
Especially attentive followers of the Uber saga will also remember this post in which I said I was writing to HMRC to claim the input tax that, I think, should have been on the VAT invoice.
There are, as someone who takes Ubers a lot might say, many roads home.
Last week I was speaking about Uber at a conference about tax and employment matters. And, as my fellow panellists spoke, my mind drifted (listening is not a core skill of the Bar) and I began to wonder about UberPool.
If you’re a passenger of Uber’s, UberPool is like a cross between a taxi service and a bus. You get one of their taxis – but you share it with other people going in vaguely the same direction.
The UberPool model is especially interesting to accountants and investors. Here’s Bloomberg:
So. When you take a regular Uber taxi, Uber only includes as its revenue what it says is a brokerage fee – i.e. the bit that it doesn’t pay to its workers (i.e. the drivers). But when you take an UberPool, Uber includes the whole fare as its revenue. Why might that be?
The answer seems to lie in the difference between the fare structures Uber operates for those different models. (I should note that Uber operates different UberPool models in different jurisdictions).
When you take a normal Uber taxi you pay Uber a sum calculated by its time and distance algorithm, say, 100 and it passes on to its worker 75. But when you take an UberPool, you pay Uber 70 (a fare based on historical data as to what that trip will cost) and perhaps a couple of other passengers pay Uber 70. And what Uber pays its worker doesn’t just depend on what you and the other passengers pay it. It also depends on how many passengers share that UberPool taxi. The more passengers share the UberPool the lower the percentage that Uber pays to its driver.
When it operates UberPool, Uber’s fare structure makes it look even less like a broker supplying business-to-business services to drivers and even more like a principal supplying business-to-consumer services to customers. And that’s why accounting practice, which looks to economic substance over legal form, says that when Uber operates UberPool it is really acting as a principal.
That same idea – that Uber really contracts as a principal and not a broker – lies at the heart of the Employment Tribunal case that found drivers were workers supplying their services to Uber and Uber, in turn, was supplying taxi services to passengers. And if that’s right (indeed quite possibly even if its wrong) Uber should be charging VAT and handing that VAT over to HMRC.
But the Employment Tribunal reached its decision focusing on normal Uber taxis. If accounting practice is to be believed, it would have been even easier for the Employment Tribunal to reach that conclusion focusing on UberPool.
Similarly, my VAT case against Uber focuses on a journey I took in a normal Uber taxi. My case would be even easier if I took it in an UberPool.
Anyway. Back to the conference.
‘Why not?’ I thought. And after the conference I booked an Uber, my first since the journey the subject of my High Court claim, and pressed the UberPool button.
I now have an invoice for that UberPool journey. I believe (from the heretical position of “tax expert”) that it should be a VAT invoice. And I will seek to add it to the High Court claim against Uber. And I will seek to claim it back from HMRC in my next VAT Return.