TIME FRAME CONFIRMED FOR FIRST TIME BUYER SDLT REDUCTIONS IN CHANCELLOR’S AUTUMN BUDGET

On 17 November the Chancellor presented his Autumn Statement. Jeremy Hunt announced that the recent changes to stamp duty law tax (SDLT) thresholds for first time buyers would now only be temporary, and would remain in place until 31 March 2025.

The changes were first introduced with immediate effect as part of the ‘mini-budget’ delivered on the 23 September 2022 and survived the subsequent government U-turn on the 17th October 2022.

SDLT is charged on the purchase of property or land. It applies in England and Northern Ireland only. In Scotland and Wales there are separate property transaction taxes. (Land and Buildings Transaction Tax in Scotland and Land Transaction Tax in Wales).

The amount paid depends largely on the type of property sold (residential or commercial), the selling price and the circumstances of the purchaser. There are also a number of reliefs that may be claimed reducing the amount of tax paid on the transaction.

First-time buyers of residential property may claim tax relief if the purchase price is no more than £625,000. If someone is eligible they are charged tax at 0% on the first £425,000, and 5% on the remainder.

WHAT CHANGES TO SDLT WERE ANNOUNCED FOR FIRST TIME BUYERS? 

On 23 September the Chancellor announced three changes to SDLT:

• an increase in the threshold up to which SDLT is not paid – the ‘nil-rate threshold’ – from £125,000 to £250,000.

• an increase in the nil-rate threshold for first-time buyers relief, from £300,000 to £425,000

• an increase in the maximum amount first-time buyers can buy a house for and still be eligible for relief, from £500,000 to £625,000.

Section below reproduced from Stamp Duty Land Tax (Reduction) Bill 2022-23 Research Briefing from the House of Commons Library.

Table 1 shows SDLT rates and bands for residential property prior to the Chancellor’s announcement on 23 September 2022 and after.  

The examples below show how this works in practice, with the amount of SDLT that would have been paid under the rates before 23 September, and after.

DOMESTIC REVERSE CHARGE FOR CONSTRUCTION SERVICES DELAYED ONE YEAR

In Revenue and Customs Brief 10 (2019) released on 6 September 2019 HMRC have announced that the introduction of the domestic reverse charge for construction services will be delayed for a period of 12 months until 1 October 2020.

The reasons given for the delay are to give businesses more time to prepare for the change and also to avoid the changes coinciding with Brexit.

HMRC also comment that in the intervening year they will be focusing additional resource on identifying and tackling perpetrators of the fraud. HMRC say ‘It has put in place a robust compliance strategy for tackling fraud in the construction sector using tried and tested compliance tools.’

The Revenue and Customs Brief can be accessed at the link below.

https://www.gov.uk/government/publications/revenue-and-customs-brief-10-2019-domestic-reverse-charge-vat-for-construction-services-delay-in-implementation/revenue-and-customs-brief-10-2019-domestic-reverse-charge-vat-for-construction-services-delay-in-implementation

On a related topic construction businesses working in the residential sector should make sure that their subcontractors are charging them at the correct mix of reduced and zero rated VAT where possible. One of HMRC’s recent trends is to review a construction firm’s VAT recovery position and deny VAT refunds where a sub-contractor has charged VAT at 20% when it could have been charged at 5% or 0%. HMRC say the incorrectly charged VAT on these invoices is not technically VAT so cannot be reclaimed and they also claim there is an increased risk of sub-contractors not paying the VAT they collect onto HMRC.

MAJOR VAT CHANGES FOR CONSTRUCTION BUSINESSES – ARE YOU AFFECTED?

Any VAT registered business providing construction services needs to make themselves familiar with major changes to the way VAT is accounted for from 1 October 2019 onwards. Although in practice the changes are on one level very simple they are conceptually difficult to understand just from reading HMRC’s guidance. We have attempted to explain the changes below and the potential impact on construction companies.  Please do not hesitate to contact us if you would like specific advice for your business or project.

The current position

At present, sub-contractors in the construction industry generally charge VAT to their customers (who may be other sub-contractors or main contractors) and pay it over to HMRC and at the same time reclaim any VAT that they pay out to their suppliers. The VAT paid out by the customer to the sub-contractor is reclaimed from HMRC by the customer (where they are other construction firms) so there is in effect a circular movement of the VAT monies and all parties are VAT neutral. This process continues all the way up the supply chain until the services are provided to a final consumer who is not VAT registered who ultimately bears the burden of VAT.

The problem

However in recent years, fraudsters have infiltrated the construction supply chain and introduced businesses who collect VAT from their customers but do not pass this VAT onto HMRC. HMRC have confirmed this issue is costing them many millions of pounds per annum.

HMRC’s solution

In order to eradicate this problem HMRC have introduced new rules known as the domestic reverse charge (DRC) from 1st October 2019 whereby the collection of VAT on sub-contractor services in the construction supply chain is removed. i.e. so the sub-contractor no longer collects VAT on its services. This applies to the entire construction industry.

Where applicable the subcontractor notifies its customer that the DRC applies and the customer accounts on its VAT return for the VAT that previously the sub-contractor would have paid to HMRC. This VAT amount is cancelled out by the customer simultaneously reclaiming the same amount on its VAT return (see diagram below). This is the bit that is probably unfamiliar to many businesses although once understood as an idea is basically very simple.

The rules must be considered by any business that is VAT registered and registered on the Construction Industry Scheme (CIS). The CIS is another tax mechanism whereby building contractors have to withhold a percentage of any payment to their subcontractors and pay this sum to HMRC as an advance payment of tax for the subcontractors concerned – it is a quasi-PAYE system for the construction industry.  Unlike the CIS the DRC applies to the whole value of an invoice.

Whilst these changes will undoubtedly be a compliance headache as businesses get to grips with the new rules the main issue is likely to be the negative cashflow effect for subcontractors who will be receiving 20% less cash when the measure is introduced in October.

Many businesses rely on the VAT that they carry on payments received up until their next VAT return as working capital. This is particularly so in the construction industry where margins are tight and payments terms are critical. Main contractors will receive a boost to their cashflow as they will no longer have to pay VAT to their subcontractors. At this stage it is not known how these changes will affect the overall construction supply chain over the next few months but it is anticipated that there will be casualties as this change in conjunction with other factors may be enough to tip struggling businesses over the edge.

It is recommended that main contractors consult with their sub-contractors to ensure there are not going to be issues where, for example, subcontractors are unaware of these changes.

Application of the DRC

HMRC have produced the following flowchart to help businesses decide whether they fall into the DRC. This flowchart is also included at the end of HMRC’s guidance note which can be found at https://www.gov.uk/guidance/vat-domestic-reverse-charge-for-building-and-construction-services

In general terms contractors that are VAT registered and CIS registered who are working for other VAT registered and CIS registered businesses should expect the DRC to apply unless their customer confirms otherwise.

 In general terms contractors that are VAT registered and CIS registered who are working for other VAT registered and CIS registered businesses should expect the DRC to apply unless their customer confirms otherwise.

The works covered by the measure

The DRC applies to any services which are covered by the Construction Industry Scheme and will include most construction operations. Unlike the CIS which only applies to the labour element of any supply the DRC will apply to both labour and any materials supplied by the services provider so there is no need for an apportionment. HMRC give the example of a joiner constructing a staircase off site and bringing it to site. In this case even though the site works are low in value compared to the whole of the works the DRC applies to the whole value of the works.

Services and goods which are excluded from the DRC include works which are zero rated works, works not covered by the Construction Industry Scheme, the services of employment agencies that supply staff, professional consultancy services and supplies of goods on their own. VAT will be charged and invoiced as normal in these circumstances.

End–users

The DRC does not apply to works provided to persons who are not VAT registered or to persons not required to deal with the Construction Industry Scheme. VAT is charged as normal at the appropriate rate to the project concerned.

Where contractors are in contract with persons that are VAT registered and operating the CIS the recipient may confirm they are an ‘end-user’ and that the DRC does not apply. In this case VAT is charged as normal. This will generally include businesses that are not construction firms offering building services to others. Other entities to whom VAT will be charged as normal include:

a)       a construction business that is connected to an end user entity by virtue of being part of the same corporate group or undertaking as defined in section 1161 of the Companies Act 2006

b)      parties in a landlord-tenant type relationship where the parties share an interest in the same land

In general, a contractor can assume that they are not to charge VAT and advise their customer that the DRC applies and that the customer as recipient must account for VAT on the supply.

Sub-contractors

In general subcontractors supplying other contractors (unless for example that contractor is treated as an end-user by being connected to the developer of the land concerned) must not charge VAT and must issue DRC invoices which include the wording options as follows:

·        reverse charge: VAT Act 1994 Section 55A applies

·        reverse charge: S55A VATA 94 applies

·        reverse charge: Customer to pay the VAT to HMRC

VAT accounting changes will also need to be implemented.

Contractors receiving DRC services

If you are a contractor receiving construction services from VAT and CIS registered sub-contractors you will no longer be charged VAT on the invoices for these services. You should ensure you receive DRC compatible invoices and that you account for the VAT that would of in the past been paid to HMRC by your sub-contractor. You reclaim this VAT at the same time (as now) so the net effect is nil in financial terms.  You will need to ensure any self-billing invoices are also appropriately worded (see sub-contractor section above)

Given the current low awareness of these changes it would be prudent to ensure your sub-contractors are aware so that any issues can be ironed out ahead of the 1st October implementation date. Please email us if you would like a template email to send to your sub-contractors.

PROVING A DWELLING IS NOT LIVED IN CAN BE A CHALLENGE

There are four instances where VAT savings can be made when renovating empty dwellings as follows:

1)      A dwelling that has been empty for at least 2 years prior to commencement of a contractors works

2)      A dwelling that has been empty for 2 years prior to purchase of that property and works completed within 12 months of the date of purchase of the property  

3)      A dwelling that has been empty for 10 years prior to commencement of works and is subject to a DIY converters VAT reclaim

4)      A dwelling that has been empty for 10 years prior to its sale

Each instance is subject to detailed conditions being met including the need to demonstrate that the property has not been lived in for the 2 or 10 year period concerned. It is our experience this is often the most challenging part of securing the VAT savings as every property has a unique past and set of circumstances which must be understood and documented.

The decision whether a particular dwelling has not been lived in for the relevant period is based on the balance of probabilities.

HMRC guidance suggests evidence including data from the electoral register, council tax records, utilities companies, empty property officers in local authorities or any other source that can be considered reliable. HMRC do allow squatters and property ‘guardians’ installed to protect properties to be disregarded. 

The reality is that these forms of evidence are not always readily available and it is often necessary to gather and rely on other forms of evidence as well as being more imaginative about how to demonstrate a property was not occupied. The recent tribunal decision of Fireguard Developments Ltd highlighted the challenges of obtaining sufficient evidence and HMRC’s ability to obtain their own evidence if they so choose.

Fireguard had renovated and sold two adjacent existing dwellings in Southport Merseyside. Fireguard sought to reclaim VAT incurred on the renovations on the basis that the dwellings had not been lived in for the ten years preceding the sales. It was agreed that one property had been empty but there was a dispute about the other one.

Fireguard purchased the property in 2016 and sold it in 2017 after renovating it. The property was vacant at the time of purchase. Fireguard sought to reclaim the VAT incurred and HMRC rejected this on the basis there was insufficient evidence that the property had been unoccupied for the ten year period required.

Fireguard relied on a statutory declaration from the previous owner who stated the property had been empty from ‘around 2005/2006’. They also obtained a letter from the local authority that confirmed the property had remained empty since December 2008.

HMRC had made their own enquiries and had obtained electoral register data that suggested various people were in the property between 1995 and 2009 – one resident from 2005 to 2007 and two others from 2008 to 2009. HMRC argued that the electoral register was an independent reliable source of evidence.  HMRC also relied on PAYE information which showed an individual registered at the address up to November 2008 which was broadly in line with the council tax letter obtained by Fireguard. Fireguard argued that the evidence collated by HMRC was not reliable.

HMRC argued the statutory declaration was not reliable as the previous owner had an interest in selling the properties and also that the dates were vague.

The tribunal in agreeing with HMRC found on balance that the property was occupied placing particular emphasis on the PAYE  and the consistent dates in the council letter and electoral register. The statutory declaration was given limited weight due to its vagueness and inconsistency with dates quoted in it and those given in a separate planning application.

This decision highlights the need to consider in detail the evidence relied upon and to consider a number of reliable and consistent forms of information/evidence which taken together suggest it is more probable than not that a property was not lived in.

VAT REVERSE CHARGE FOR CONSTRUCTION SERVICES

To combat the problem of missing trader fraud in construction industry supply chains the Government is proposing to introduce a VAT reverse charge for supplies of construction services to businesses from October 2019. The current problem relates to VAT on standard rated payments in the construction supply chain not being passed to HMRC.

Where does the reverse charge originate?

The reverse charge mechanism was created when the European Union VAT system was reformed for the launch of the single market, to help simplify the VAT accounting across the 28 member states. The reverse charge moves the responsibility for the reporting of a VAT transaction from the seller to the buyer of a good or service. In EU terms this reduces the requirement for sellers to register for VAT in the country where the supply is made.  The reverse charge has also more recently been used as an anti-fraud measure for missing trader fraud.

How does the reverse charge work?

When the reverse charge is applied, the buyer of the goods or services makes the declaration of both their purchase (input VAT) and the seller’s sale (output VAT) in their VAT return.  In this way, the two entries cancel each other from a cash payment perspective in the same VAT return. The seller of the goods or services therefore does not need to charge and collect VAT from the buyer of its goods or services. If the buyer can reclaim VAT, they can also reclaim the reverse charge amount – so the reverse charge is generally identical in treatment to other VAT payments however it must be recorded on the VAT return for VAT compliance purposes.

What are the new proposals?

The new Value Added Tax (Section 55A) (Specified Services and Excepted Supplies) Order 2019 seeks to remove VAT from the construction supply chain so that sub-contractors supplying construction services do not charge VAT on their services and the recipients of the supply make a reverse charge adjustment in their VAT return.  

It is proposed that the definition of construction services follows that of ‘construction operations’ used for the Construction Industry Scheme (CIS).These are broadly:

·         construction, alteration, repair, extension, demolition or dismantling of buildings or structures;

·         installation of heating, lighting, air conditioning, ventilation, power supply, drainage, sanitation, water supply or fire protection;

·         internal cleaning of buildings;

·         painting or decorating internal or external surfaces; and

·         services integral, or preparatory, to the above.

At present there is a consultation ending on the 20 July 2018 on the draft legislation which focuses on defining the boundaries of the new reverse charge and which services are specified or excepted. The draft legislation does not cover many of the practical day-to-day issues around the operation of the charge. These matters will be set out in HMRC guidance yet to be released.

It has been confirmed that the reverse charge will be limited to construction services and the intention is that consumers, developers, property investors, landlord-tenant payments, and intra-group transactions between connected companies will be excluded.

One of the main concerns as raised by the British Property Federation is that it is envisaged that businesses will have to issue a ‘charge me’ certificate where they fall within the scope of excepted supplies and should be charged VAT. If this approach is followed the impact of the change could be very wide reaching and would create a significant administrative burden to many businesses not in the construction sector. An alternative and preferable approach would be to have ‘please don’t charge me’ certification which would focus the impact of the change on construction firms and their sub-contractors.

UPPER TRIBUNAL DECISION REGARDING VAT TREATMENT OF NEW DWELLINGS WHERE A PART OF THE BUILDING IS RETAINED

Following on from our last blog post the outcome of HMRC’s appeal to the Upper Tribunal in JS Building Solutions (J3BS) was published in June 2017. The decision has not been subject to any further appeal.

As outlined in the blog post below, J3BS carried out a building project that resulted in an enlarged dwelling incorporating three walls of the existing dwelling on the site. The First-tier Tribunal held that this was the construction of a new dwelling and zero rating could be applied to the works. The First-tier tribunal did not see the works as amounting to the alteration of an existing building preferring to characterise the works as the construction of a new building.

The Upper Tribunal rejected the approach of the First-tier stating that in almost all cases a project that does not satisfy the façade retention rule will be seen as an existing building and works will not be able to be described in VAT terms as the construction of a new building. The façade retention rule allows a single façade or double façade on a corner site where it is retained as a condition or requirement of statutory planning consent or similar permission  to be ignored for the purposes of determining whether a project can be a zero rated new build dwelling.

If as was the case here more of the pre-existing building is retained than the requisite single or double façade then the works to those retained parts would be an alteration of an existing building and excluded from the zero rating provisions.  

The Upper Tribunal decision distinguished itself from the earlier Astral decision which allowed the zero rating of a large extension to an existing church to form a care home.  

CONTINUING SAGA OF WHETHER A NEW BUILD IS A NEW BUILD OR NOT

Yet another case about the scope of zero rating in the context of new build dwellings has been heard before the First-tier tribunal (FTT) .  

A new dwelling can be constructed free of VAT where an entirely new building is constructed or all that remains of the existing building is a single façade or a double façade on a corner site which are retainedas a condition or requirement of planning consent.

The VAT law also states that the construction of a building does not include—

(a) the conversion, reconstruction or alteration of an existing building; or

(b) any enlargement of, or extension to, an existing building except to the extent the enlargement or extension creates an additional dwelling or dwellings; or

(c) ...... the construction of an annexe to an existing building.

The recent legal developments that have muddled the above rules is the concept that the retained façade rules are not the only instance where a qualifying new building can incorporate parts of the pre-existing building and still be zero rated. It has been held (in the Upper Tribunal (UT) decision case of Astral Construction) that zero rating can apply where works can be best described as the construction of a building and not fall into any of the exclusions listed above (eg conversion, reconstruction, enlargement etc) then zero rating can still apply even though the retained part amount to more than a single or double facade. This approach which is resisted by HMRC introduces an element of uncertainty into the task of establishing the whether a project is zero rated or not .

In the tribunal decision of J3 Building Solutions Ltd (released May 2016) the building contractor and his representative argued that the works amounted to the construction of a new building and were zero rated despite the fact that some parts of the pre-existing dwelling were retained, namely two walls on a corner the building that eventually formed the outer skin of the new building in that part of the site. They also contended that if the works did not amount to a new build then the retained walls were either not part of the new dwelling or if they were facades forming part of the dwelling then they were a double facade on a corner site and retained as a condition or requirement of planning consent and therefore zero rating applied to the works.

SITE PLAN SHOWING RETAINED ELEMENTS IN J3 BUILDING SOLUTIONS CASE

HMRC argued that the VAT provisions which specifically exclude the reconstruction or alteration of an existing building from the zero rating were applicable due to the retention of parts of the pre-existing building and that the retained facades were not part of a corner site nor retained as condition or requirement of planning consent.

The FTT found that as a matter of fact and degree that the works amounted to the construction of a new building and were zero rated despite the fact that some parts of the pre-existing dwelling were retained, namely the two boundary walls which visually formed a corner of the new dwelling and parts of a further external wall. The tribunal said that what was done could not possibly be described as alteration of an existing building stating  “Demolition is not alteration, and the only parts not demolished were not altered”.

 This decision has been appealed by HMRC to the Upper Tribunal who are understood to be relying on the Upper Tribunal decision in Boxmoor Construction Ltd – a case HMRC won where a house was largely demolished and replaced – the key difference between Boxmoor and J3 is that in Boxmoor the Upper Tribunal stated that the First Tier Tribunal would have classified the works as alteration works to an existing building if they had been asked to determine the nature of the works and therefore the works could not be zero rated. In J3 the tribunal was very clear that they thought the works were of a new building based on the facts. It will be interesting to see how the case is argued when it eventually comes to court in 2017.  

CUSTOMER DUE DILIGENCE - WHY DO LANDMARK PT NEED TO DO THIS?

As tax practitioners Landmark PT are required to consider and abide by UK anti-money laundering legislation.  

The requirements of the UK anti-money laundering regime are mainly set out in the Proceeds of Crime Act 2002 (POCA) (as amended) and the Money Laundering Regulations 2007. This legislation has been interpreted in a document released by the Consultative Committee of Accountancy Bodies (CCAB) entitled Anti-Money Laundering Guidance for the Accountancy Section and includes supplementary guidance for tax practitioners. HM Treasury has approved this guidance and the courts must consider the content of this guidance when determining whether a tax advisor’s conduct gives rise to an offence under the legislation referred to above.

SUPERVISED BY A SUPERVISORY AUTHORITY

One key element of the anti-money laundering legislation and the associated guidance is that a tax advisor should be supervised by a supervisory authority who will assess an advisor’s compliance with money laundering legislation and if necessary take appropriate action to ensure compliance by the advisor concerned. In the case of Landmark PT we are supervised by the Chartered Institute of Taxation.

CUSTOMER DUE DILIGENCE

Another important cornerstone of the legislation and our obligations relates to the need for tax advisors to carry out effective ‘customer due diligence’ when establishing a business relationship with all clients. This involves the tax advisors being able to demonstrate to their supervisory body that they have identified and verified the identity of clients using documents or information from reliable and independent sources. In certain circumstances this process includes identifying the beneficial owner of a client and understanding the ownership and control structure in place behind the client entity.  

HMRC UNDER PRESSURE OVER NEW PENALTY REGIME FOR DIY BUILDERS

The UK VAT rules include a special VAT refund scheme for people who build or commission the construction of a new dwelling or convert a non-residential building to form a dwelling for their private occupation.  The scheme puts DIY builders in a broadly similar position to a developer selling a zero-rated property. If claimed, HMRC must refund any VAT chargeable on the supply, acquisition or importation of goods used by the self-builder in connection with the construction of a new, qualifying, dwelling as well as the 5% VAT in relation to conversions.

Historically HMRC have not issued penalties to DIY builders in cases where they perceive a claimant has been careless or has completed the claim form inaccurately. However at some stage in 2014 there was a change in HMRC policy and HMRC started to issue penalties based on a percentage of the Potential Loss Revenue (PLR). Three instances where penalties were raised made their way to the First-tier Tax Tribunal and three times HMRC were held to have incorrectly raised the penalties.

In the first case the claimant built some flats for resale and tried to use the DIY scheme to reclaim the VAT incurred in building them. The claimant filled in the form and answered all questions on the form truthfully and correctly including advising HMRC that the flats were intended for sale. HMRC took the view that the inaccuracy was in submitting the form at all. In dismissing HMRC’s case the Tribunal commented as follows:

‘HMRC's argument produces the logical absurdity that the [claimant’s] accuracy in the completion of a form designed to check eligibility under the Scheme gives rise to a penalty for inaccuracy.’

The claimants subsequently registered for VAT and reclaimed the VAT through the normal VAT accounting system.

In the second case a similar situation arose where a couple submitted a DIY claim for VAT incurred in the renovation of a farmhouse that had not been lived in for ten years. Unfortunately the claimants after submitting the claim form and dealing with HMRC queries could not prove to a sufficient degree that that property had been unoccupied so the claim was withdrawn by the couple. HMRC raised a penalty on the basis that the lack of evidence was an inaccuracy. Once again the Tribunal held the penalty was invalid on the basis that HMRC’s reason for the penalty (i.e. the lack of evidence) did not amount to an inaccuracy and so no penalty should have been raised.

In the third case the accountants of a DIY builder sent in error an overstated claim to HMRC. The tribunal held that the DIY builder had not been careless as he had employed professional accountants to prepare his claim and as such it was reasonable to assume that the claim would be accurate and therefore the HMRC penalty was not valid. 

Retained wall denied zero rating

Both the construction and sale of a new building designed as a dwelling is largely zero rated for VAT purposes. Generally any pre-existing building needs to cease to exist with the only exception in the VAT legislation being the retention of a single façade, or double façade on a corner site, the retention of which is a condition or requirement of statutory planning consent.  

Because the sale is taxable albeit at a zero rate of VAT this means the developer can register for, and recover VAT on related expenditure. If the new dwelling is not a new building then the sale is likely to be VAT exempt which does not give the right to VAT recovery.

In the recent tax tribunal decision of M Lennon & Co Ltd, a property developer redeveloped an existing end of terrace dwelling for resale. Due to structural problems the building was demolished all but part of the front façade which was retained to provide support to the party wall with the adjoining building. No planning permission was required for the rebuilding of the house therefore the retained façade could not be said to be retained as a condition or requirement of planning consent.

The tribunal dismissed the appeal on the basis there was no condition or requirement to keep the façade. Unfortunately, the recent reported Astral Construction decision was not referred to. Using the Astral principles in this case may have led to a conclusion that there was a new building on the site as a matter of fact, degree and impression irrespective of the retained section.  So perhaps there was a missed opportunity here.

The tribunal also commented on the need for planning consent to be granted for a new dwelling to be zero rated concluding that a property specific consent might not be necessary if the planning regime allowed the works under some general planning consent such as permitted development rights or local development orders.

ZERO RATED NEW BUILD OR STANDARD RATED EXTENSION

In the case of Astral Construction Ltd the Upper Tribunal held that works provided in the course of constructing a large nursing home attached to an existing church could be treated as zero rated construction works despite the fact it was attached to and incorporated the church as an entrance foyer and other facilities for the site. HMRC were originally arguing that the works failed the VAT requirements to be a new building and should be 5% rated as a conversion.

EXISTING CHURCH WITH NEW BUILDING WRAPPED AROUND IT 

The VAT legislation says that certain services provided in the course of constructing certain residential and charitable use buildings can be zero rated. The notes in the legislation then provide more detail on the borderline between when a building is new and zero rated or when it is is not new and potentially 20% rated (assuming the 5% VAT rate is not due).

In particular the law says the construction of a building does not include the ‘conversion, reconstruction or alteration of an existing building’. Nor does it include ‘any enlargement of or extension to an existing building’. This note has long been interpreted as suggesting that any pre-existing building must be totally demolished (other than retained facades as referred to below).

The law also goes on to say a building ‘only ceases to be an existing building when: demolished completely to ground level; or the part remaining above ground level consists of no more than a single façade or where a corner site, a double façade [subject to further conditions related to planning]

What the Astral decision confirmed is that if works to an existing building as a matter of fact and impression do not amount to a conversion, reconstruction or alteration to an existing building or an enlargement or extension to that building then perhaps they could be seen as the construction of a new zero rated building even though parts of the existing building are retained.

The separate provision regarding total demolition or retained facades only confirms where an existing building ceases to exist so this does not affect the Astral scenario.

HMRC have not released any revised guidance in the light of this decision yet although they are likely to in the next couple of months. Whatever the content of the HMRC guidance this decision does mean that where major redevelopments are occurring there is another pathway to consider by which zero rating may be achieved. 

CHOICE OF PROCUREMENT ROUTE CAUSES VAT HEADACHE

The recent tribunal decision of Alan Johnson highlighted the issues that arise when a housebuilder expects common sense to have any application in interpreting the intricacies of the VAT legislation.  

This decision relates to a VAT reclaim made to HMRC by a private individual in relation to the construction of a dwelling. Whilst construction services to construct the new dwelling are zero rated the separate supply of building materials and other items are VAT standard rated. Where the new dwelling is being commissioned by a person for private occupation the VAT on some of these standard rated items can be reclaimed by the self-builder by way of a DIY builder VAT reclaim application to HMRC at the conclusion of the project.

In this case VAT incurred on the separate purchase of building materials was allowed however HMRC rejected the reclaim of VAT on items that were hired by the self-builder including scaffolding hire, skip hire, digger hire stating that the DIY builders VAT scheme was only applicable to VAT on building materials and not the VAT on hire services.

HMRC made the point that where the hire of an item and its use on site were by two distinct legal entities  then the hire on its own could not be treated as zero rated services nor could the VAT be reclaimed as being VAT incurred on ‘building materials’. HMRC stated that the hire of the digger with an operator could be zero rated as construction services and the claimant would need to ask the supplier to adjust their invoicing accordingly from the 20% VAT rate to the zero rate.

The claimant argues that ‘building materials’ often included an element of services. HMRC accepted that where the cost formed an inherent and inseparable part of the cost of the materials then the VAT on this part would be treated as part of the cost of the building materials (e.g. haulage costs of stone to site charged by the stone supplier) and this VAT would be capable of reclaim.

 This case highlights the importance of considering project procurement at the outset of a scheme if VAT costs are to be minimised. 

Back to basics: Introduction to the option to tax

Income from the sale or letting of property is generally exempt from VAT. There are however three exceptions where VAT is chargeable at 20%

1)      The freehold sale of new or partly completed commercial buildings  (‘new’ means a building less than three years old)

2)      Subject to various conditions certain classes of commercial property including hotel accommodation, holiday accommodations, storage buildings etc

3)      The sale or letting of commercial property over which the owner has made a valid option to tax (residential property is not affected by the option to tax)

This article focuses on the basic concepts in relation to making an option to tax. 

So why would someone opt to tax?

The option to tax means the owner has to charge VAT on rental or sale of the property. The main advantages are

1)      The main reason for opting to tax is that VAT on costs e.g. a refurbishment can be recovered whereas without an option the VAT would not be recoverable

2)      Avoiding VAT on a going concern purchase – if a person steps into the shoes of an existing commercial landlord who charges VAT on rental income then as long as certain conditions are met including the incoming purchaser making an option to tax on the property then no VAT is chargeable on the disposal price (this can reduce SDLT costs)

The main disadvantage is that VAT must be charged on the sale or rental of an opted building when the purchaser cannot necessarily recover this VAT.

Is it always necessary to opt to tax?

Situations when an option to tax is not necessary include:

1)      The freehold sale of new commercial property less than three years old

2)      Property owned and used by a person operating a full VAT charging taxable business

3)      Property used for certain property exploiting businesses eg hotels, holiday accommodation, storage etc

In all these examples VAT on costs will be recoverable without an option to tax due to the taxable nature of transactions.

The option to tax is generally relevant to those letting property for rental income. Whilst many tenants can recover VAT added to the rent they are charged some tenants cannot recover VAT due to the exempt nature of their business e.g. financial services and insurance businesses – it goes without saying that these companies would not be keen on letting a building which is subject to an option to tax.

 Buying a property business as a going concern

The Transfer of a Going concern (TOGC) rules are compulsory and if they apply they will take a transaction outside the scope of VAT. This can have useful cashflow advantages as no VAT has to be paid over to the seller by the purchaser.  Special conditions apply to opted investment property that is sold as part of a going concern sale where the property is sold with an existing tenant. In this case one of the key conditions is that the incoming purchaser must also opt to tax and register for VAT for the TOGC rules to apply.

One benefit of the TOGC route for commercial investment sales is that SDLT is added to the VAT free price, whereas on a non TOGC sale which is subject to VAT the SDLT is due on the total sum including any VAT element (even of the VAT is recoverable).

How is an option to tax made? 

An option to tax once made it is notified to HMRC on form VAT1614A. In certain cases a option to tax will require the prior permission of HMRC. In other situations the option to tax once made may be disapplied by a purchaser e.g. the sale of opted commercial property that is intended for conversion into dwellings.  This  can create issues for sellers who would make an exempt sale rather than  a taxable sale with the consequential VAT recovery restrictions. 

A saga where less (detail) means more (VAT)

Lady Henrietta Pearson must have thought the day would never arrive when HMRC refunded her the £40,000 or so of VAT she incurred in converting a disused barn into a home for her and her husband. Yet after three Tribunal hearings and two VAT tribunal decisions the day has finally arrived.  

Works started on the conversion in 2000 when there was a 1997 consent for the creation of holiday accommodation. By 2007 a revised consent had been granted for the creation of a live work unit. In 2011 Lady Pearson submitted a DIY converters claim for the VAT she has incurred in creating the live work unit.

HMRC rejected the claim on the basis the conditions to the 2007 consent meant the  definition for a qualifying dwelling for VAT purposes could not be satisfied – in particular the requirement that a dwelling for VAT purposes must not be prohibited from separate use or disposal in the terms of the planning consent.  HMRC said the conditions to the 2007 planning prevented the work element from being used or disposed of separately from the live element of the conversion.

In allowing the first appeal the Tribunal said that due to the lack of detail in the planning documentation and associated plans it was impossible to identify any work area and therefore impossible to see what the work area (where ever it was) might be separate to.  

Another condition of a qualifying dwelling for VAT purposes is the need for the dwelling to be built in accordance with the planning permission granted. In this case there were differences between the plans submitted and the actual works carried out however the Tribunal did not see this as a  blatant disregard of the planning consent and did not think the planning authority considered the development unlawful in this respect.

No doubt Lady Pearson thought this was the end of the matter however HMRC had different ideas. Whilst HMRC accepted the principle a DIY claim was possible they then reduced the claim by £30,000 or so on the basis that many of the contractor VAT invoices should have been correctly 5% rated at source. It is a requirement of the DIY scheme that invocies are charged at the correct VAT rate for instance 5% in the case of a qualifying conversion.  Lady Pearson was required to recoup this VAT from the suppliers by why of credit notes. However this was not possible as many of the invoices where over 4 years old and therefore not capable of amendment.

As a result Lady Pearson submitted a new Tribunal appeal where it was held that the first tribunal clearly allowed a VAT refund of £40,000 and therefore irrespective of the 5% rate requirement which HMRC picked up at a later date subsequent HMRC  must repay to Lady Pearson the full amount of VAT set out in the  first Tribunal decision. 

Zero rating denied for works where façade retained

The recent tribunal of Boxmoor Construction Ltd highlights the need for early consideration of the VAT rules when constructing a new dwelling with a retained façade. In particular, the need for there to be a level of unity between what is actually demolished and built on site and the original planning application describing the works concerned. There needs to be a degree of ‘specificity’ regarding the façade retention if the scheme is to meet the conditions for the zero VAT rate to apply to qualifying construction works.

In Boxmoor the works were described in the planning consent as being extensions and roof alterations. However the works on site involved the substantial demolition of the building apart from a small part of the front façade.  HMRC took the view ( a view that was ultimately confirmed by the Tax Tribunal) that zero rating was not available as there was no condition or requirement to retain the front façade in the relevant planning consent. 

VAT and perils of planning consent

In the recent appeal to the Upper Tribunal by HMRC against the decision of the First-tier Tribunal in the case of Patel it was held (overturning the decision of the First-tier Tribunal) that receipt of a backdated planning consent for the construction of a new dwelling after the 3 month time limit had elapsed for the making of a DIY builder’s VAT reclaim was not sufficient to make the DIY VAT reclaim valid for repayment.  

Mr Patel had originally received planning permission for the enlargement of an existing dwelling however the dwelling was actually fully demolished and a new dwelling constructed. The local authority was aware that a new dwelling was being built. Upon completion of the works Mr Patel submitted a DIY builder’s VAT reclaim to get a refund of VAT on the building materials he had bought. HMRC rejected the claim saying at the time fo the claim there was no planning consent for a new dwelling.  

Mr Patel obtained retrospective consent for the dwelling. The local authority dated the consent in 2009 before the works commenced. The First-tier Tribunal decided this was sufficient to make the VAT reclaim valid. The Upper Tribunal in overturning this decision held that as the consent was not produced before the end of the three month time limit allowed by the VAT regulations  for submitting a DIY builder’s VAT reclaim and therefore the refund of VAT to Mr Patel could not be made. 

This case again highlights the need to ensure the VAT rules are understood from the outset of any building project.

Annexe or extension?

The recent tribunal decision of Gateshead Jewish Nursery held that a single storey rear addition to an existing nursery facility operated by a charity was an extension and not an annexe with the consequence that works were VAT standard rated. If the structure had been classified as an annexe and met the other conditions for zero rating (i.e. separate access not via existing building and capable of independent function) then the works could have been zero rated.  

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PLAN OF NEW EXTENSION

The floor plan above shows the property concerned. This case highlights the potential benefits of early consideration of the VAT rules as the design of the new building and subsequent planning application could have been drafted with these specific VAT rules in mind.  

VAT recovery on white goods and carpets considered

The tax tribunal has released its lengthy judgment in the preliminary hearing of Taylor Woodrow plc (TC03700) which concerned a VAT claim by a house builder in relation to VAT incurred on kitchen white goods and carpets that it did not recover as a result of the residential developer’s Blocking Order. The claim amounted to a figure in the region of £60 million and related to the period from 1973 to 1997. Different versions of the law over this timeframe were considered.

The principal argument of Taylor Woodrow was that the items concerned were not ‘incorporated’ into the dwellings and were therefore not covered by the Blocking Order.  The tribunal disagreed saying all the items were ‘incorporated’ under UK law. The Judge went on to say the following:

346. And even if I am wrong on the meaning of ‘incorporates’ and some or all of the Claim Items were not incorporated, that would not have meant that the appellant wins its case. It would have to go on and establish that either those Claim Items were part of the zero rated supply with the house, which, if they were not ‘incorporated’, is not accepted by HMRC or that even if not zero rated, the appellant is entitled to reclaim its input tax without offsetting the output tax on what would have been a standard rated supply.

The judge also considered whether the Blocking Order was authorised under EU law and concluded that if Taylor Woodrow wanted to rely on the EU law the outcome would be that the sale of the items would likely be standard rated and any adjustment to VAT recovery would have to be offset by the VAT that should have been charged. This is not the end of the matter and the issue of whether the goods formed the part of a single zero rated supply needs to be addressed. It is not known at this stage whether an appeal will be lodged.

http://www.financeandtaxtribunals.gov.uk/judgmentfiles/j7813/TC03700.pdf

Zero rating available for ancillary accommodation

In the recent case of MIM Construction it was held that a 'pool barn' was ancillary accommodation and could be treated as being part of an adjacent dwelling. Acceptance of this by the tribunal based on the facts of this case then opened the door for the alteration works to be zero rated under the now largely defunct listed building VAT rules. The alterations included the creation of a play room, yoga space, laundry, gym and changing rooms to an adjacent pool. The case mentioned the Fox and Catchpole VAT decisions which also concerned dwellings spread over more than one building. It has long been HMRC's view that for VAT purposes a dwelling must be contained in a single building (excluding garages which are specifically mentioned in the legislation). The case distinguished the House of Lords Zielinski Baker decision. It is understood that HMRC are rethinking their policy in this area. 

Site plan of the ancillary accommodation 

Qualifying conversion did take place

In the recent VAT tribunal decision of Nabarro the judge held that the 5% VAT rate was available in a situation where a house with an adjacent self contained flat was converted into a single dwelling. HMRC had issues with whether the flat was actually a separate dwelling and whether the pre-conversion flat and house existed within one building. It was held there was a single building comprised of two 'single household dwellings' prior to the works and one 'single household dwelling' after the works therefore the 5% rate was applicable on the qualifying works. The fact the flat was completely demolished in the course of the works to allow for the extension of the main house was held not to be relevant nor the fact that the pre-existing flat did not have separate incoming utilities.