Category Archives: Latest VAT news

VAT: Latest on overseas claims from the UK

By   15 July 2020
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HMRC has announced in Revenue and Customs Brief 9 (2020) that there are delays in processing and refunding claims submitted under the Overseas Refund Scheme (EU 13th directive claims). These refunds are for VAT incurred in the UK by businesses belonging outside the EU and relate to the period ending 30 June 2019.

The delays are as a result of the COVID19 pandemic. HMRC say that they hope to make all payments 30 September 2020.

Certificate of status

HMRC says that it is aware that some overseas businesses may not be able to obtain the required certificate of status from their official issuing authorities due to the coronavirus.

If a business has submitted a claim without a certificate of status, it will not be rejected, but it will be put on hold until 31 December 2020.

If, in these circumstances, a business is unable to obtain the relevant certificate of status by 1 October 2020, it needs to write to HMRC to let them know and the specifics of the case will be considered.

VAT – Residential Property Triggerpoints

By   13 July 2020
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What to look out for

VAT and property transactions are uneasy bedfellows at the best of times.  Getting the tax wrong, or failing to consider it at all can result in a loss of income of 20% on a project, or forgoing all input tax incurred on a development. Even a simple matter of timing can affect a transaction to a seller’s detriment. Here I take a brief look at issues that can impact residential property transactions.  It is important to recognise when VAT may affect a project so I hope that some of these triggerpoints may prove useful.

General points

The following are very general points on residential properties. No two cases are the same, so we strongly recommend that specific advice is obtained.

Refurbishing “old” residential properties

Broadly speaking, the VAT incurred on such work is not reclaimable as the end use of the property will be exempt (either sale or rent). There is no way round this as it is not possible to opt to tax residential dwellings. It may be possible to use the partial exemption de minimis limits if there are any other business activities in the same VAT registration. If this is the only activity of a business, it will not even be permitted to register for VAT. There are special rules if the number of dwellings change as a result of the work (see below).

New residential builds

The first sale (or the grant of a long lease 21 years plus) of a newly constructed dwelling by “the person constructing” is zero rated. This means that any VAT incurred on the construction is recoverable. Care should be taken if the new dwelling is let on a short term basis rather than/before being sold as this will materially affect input tax recovery.  Advice should always be taken before such a decision is made as there is planning available to avoid such an outcome. VAT incurred on professional and legal costs of the development may also be recovered such as; architects, solicitors, advisers, agents etc. VAT registration is necessary in these cases and our advice is to VAT register at the earliest stage possible.

The construction of new dwellings is zero rated, along with any building materials supplied by the contractor carrying out the work.  The zero rating also extends to sub-contractors.  It is not necessary for a certificate to be provided in order to zero rate such building works.

Conversions

There are special rules for refurbishments which create a different number of dwellings (eg; dividing up a single house into flats, or changing the total number of flats in a block, or making one dwelling by amalgamating flats). Generally, it is possible for contractors to invoice for their building work at the reduced rate of 5%. This rate may also apply to conversions. A conversion is defined as work undertaken on a non-residential property, such as a barn, office or church, into one or more self-contained dwellings.  Once converted the sale of the residential property will be zero rated and all of the input tax incurred on associated costs is recoverable (similar to a new build).

Renovation of empty residential premises

Reduced rating at 5% is also available for the renovation or alteration of empty residential premises. Such a premises is one that has not been lived in during the two years immediately before the work starts. HMRC will insist on documentary evidence that the property has been empty for that time.

Purchase of a commercial property intended for conversion

If it is intended to convert a commercial property into residential use and the vendor indicates that (s)he will charge VAT (as a result of the option to tax having been exercised) it is possible for the purchaser to disapply the option to tax by the issue of a certain document; form VAT 1614D. This means that the sale will become exempt.  Advice should always be sought on this issue by parties on each side of the transaction as it very often creates difficulties and significant VAT and other costs (mainly for the vendor).

Mixed developments

If what is being constructed is a building that is only in part a zero-rated dwelling, a contractor can only zero-rate its work for the qualifying parts. For example, if a building  containing a shop with a flat above is constructed, only the construction of the flat can be zero-rated. An apportionment must be made for common areas such as foundations and roof etc. The sale of the residential element when complete is zero rated and the sale of the commercial part will be standard rated if under three years since completion.  If the commercial part is over three years old at the date of sale, or is rented rather than sold, the supply will be exempt with the option to tax available – details here.  If an exempt supply is made, the recovery of input tax incurred on the development will be compromised and it is important that this recognised and planning put in place to avoid this outcome.

DIY building projects

There is a specific scheme for DIY Housebuilders to recover input tax incurred on the construction of a dwelling for the constructor to live in personally.  Details here https://www.marcusward.co/?s=diy

Sale of an incomplete residential development

There are two possible routes to relief if a project is sold before dwellings have been completed (either new build or conversion).  This can often be a complex area, however, there is some zero rating relief which may apply, and also it may be possible to apply TOGC (Transfer Of a Going Concern) treatment to the sale.  In both cases, it is likely that input tax previously claimed by the developer should not be jeopardised.

Overview

There are VAT complications for the following types of transactions/developments and issues:

  • definition of a dwelling
  • arrangements where consortiums or syndicates are used/profit share
  • transactions in connection with nursing or children’s homes or similar
  • “granny flats” in the garden of existing houses
  • work on charitable buildings/ for charities
  • converting specific commercial property into residential property – particularly ex-pubs
  • sales to Housing Associations
  • sales of “substantially reconstructed protected buildings”
  • buying VATable buildings
  • date of completion – zero rating cut off
  • supplies by members of VAT groups
  • definition of building materials
  • input tax on white goods and similar
  • alterations for people with disabilities
  • garages with dwellings
  • land supplied with a property
  • buying property with existing, continuing leases
  • beneficial owner versus legal owner issues
  • change of intention (buying land/property with the intention of using it for one purpose, but the intention changes after purchase)
  • where professional/architect’s fees are incurred
  • planning gains
  • own use of a property
  • mobile homes
  • reverse premiums/surrenders/reverse surrenders re; leases
  • holiday lets and
  • hotels
  • business use by purchaser/tenant
  • contract stage of a property purchase where VAT is potentially chargeable by vendor
  • timing of supplies
  • work re; schools, churches, village halls, hospitals, or any other “unusual” structures

This list is not exhaustive, but I hope it gives a broad idea of where VAT needs to be considered “before the event”. As always, we are available to assist.

VAT cut for hospitality – Summer Statement 2020

By   8 July 2020
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In today’s Summer Statement Rishi Sunak announced that VAT will be cut from the current rate of 20% to 5% for the next six months in respect of hospitality and tourism which includes;

  • eat in food in cafes, restaurants, bars, pubs etc
  • holiday accommodation; hotels, B&Bs etc
  • attractions such as cinemas, theme parks and zoos etc

The cut lasts from 15 July 2020 until 12 January 2021.

Around two million people work in the hospitality sector and it has been one of the hardest hit by Covid-19 and the government has recognised that it warrants further support. It is estimated that the move will benefit more than 150,000 businesses and consumers. This should encourage more consumer spending and help UK tourism.

Updates

HMRC has updated the relevant guides:

Notice 701/14 Food products and Notice 709/1 Catering, takeaway food

Notice 709/3 Hotels and holiday accommodation

Tourist attractions

Reductions to the relevant flat rate schemes (FRS) rates have also been announced. The two most relevant categories are catering and accommodation.

Commentary

A temporary cut of the standard rate from 17.5% to 15% was put in place during the financial crisis of 2008, but, by common consent, its impact was limited. So it remains to be seen how successful this announcement will be. It is not anticipated that the cut will be passed on to end consumers, but rather used to support potentially faltering businesses.

VAT Taxable Supply – Definition

By   3 July 2020
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What is a taxable supply and who is a taxable person?

A VAT Back To Basics

Taxable supply

It is sometimes useful when considering a transaction to “go back to basics” for VAT purposes. There are certain tests to determine whether a supply is taxable, and these are set out below. Broadly, the tests establish whether UK VAT is payable on a sale and they determine whether an entity is “in business”, that is; carrying on an economic activity.

A transaction is within the scope of UK VAT if all four of the following conditions are satisfied:

  • It is a supply of goods or services.

There is a distinction between the two types of supply as different VAT treatments may apply.  Generally, everything that is not tangible goods is services. However, if no goods or services are actually provided, there is no supply.  Indeed, if there is no consideration for a supply, in most cases it is not a taxable supply.

  • It takes place in the UK.

There are quite complex tests to consider when analysing the “place of supply”, especially where services are concerned.  If the place of supply is outside the UK then usually no UK VAT is due, however, the supply may be subject to VAT in another country.

  • It is made by a taxable person.

A taxable person is any legal entity which is, or should be, registered for VAT in the UK.

  • It is made in the course or furtherance of any business carried on by that person

Business

The term “business” is only used in UK legislation, The Principal VAT Directive refers to “economic activity” rather than “business” and since UK domestic legislation must conform to the Directive both terms must be seen as having the same meaning.  Since the very first days of VAT there have been disagreements over what constitutes a “business”. I have only recently ended a dispute over this definition for a (as it turns out) very happy client.  The tests were set out as long ago as 1981 and may be summarised as follows:

  • Is the activity a serious undertaking earnestly pursued?
  • Is the activity an occupation or function, which is actively pursued with reasonable or recognisable continuity?
  • Does the activity have a certain measure of substance in terms of the quarterly or annual value of taxable supplies made (bearing in mind that exempt supplies can also be business)?
  • Is the activity conducted in a regular manner and on sound and recognised business principles?
  • Is the activity predominantly concerned with the making of taxable supplies for a consideration?
  • Are the taxable supplies that are being made of a kind which, subject to differences of detail, are commonly made by those who seek to profit from them?

So, if these tests are passed a taxable supply exists. The next step is to establish which VAT rate applies. In an often quoted comment from the judge in the Morrison’s Academy Boarding Houses Association 1978 STC1 Court Of Session case “…In my opinion it will never be possible or desirable to define exhaustively ‘business’ ”. Which what it lacks in helpfulness, makes up for in candour.

There was something of a deviation from the Lord Fisher tests in the Longbridge Court of Appeal case, however, that appears to be a blip and HMRC seem to have reverted to Lord Fisher in subsequent hearings on the same topic. A bit of a: watch this space area of VAT.

Recent cases on business

Recent case law on this issue here and here and HMRC Internal guidance on the Lord Fisher tests here

Commentary

Tip: It is often easier to consider what isn’t a taxable supply to establish the correct VAT treatment.  Specific examples of situations which are not taxable supplies are; donations, certain free supplies of services, certain grants or funding, some compensation and some transactions which are specifically excluded from the tax by legislation, eg; transfers of going concerns (TOGC).

I think that it is often the case that the basic building blocks of the tax are overlooked, especially in complex situations and I find it helps to “go back to the first page” sometimes.

VAT: Brexit latest

By   23 June 2020
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The European Commission (EC) has published an updated Notice to Stakeholders which covers the UK leaving the EU.

The original document which was published in 2018 has been amended to reflect the latest developments which mainly include the official Brexit on 1 February 2020 and the current transition period, which, as matters stand, will end on 31 December 2020. Until that date, EU law in its entirety applies to the UK

The Notice includes:

  • The legal position from 1 January 2021
  • VAT rules for cross-border services
  • The VAT General Rule
  • MOSS
  • Refunds of VAT
  • Separation provisions of the Withdrawal Agreement
  • The supply of other services
  • Refund requests relating to VAT paid before the end of the transition period

The Notice states that; “…during the transition period, the EU and the UK will negotiate an agreement on a new partnership, providing notably for a free trade area. However, it is not certain whether such an agreement will be concluded and will enter into force at the end of the transition period”. I think that this is likely to be a charitable conclusion!

The EC advises businesses:

  • when they are established in the EU, to familiarise themselves with the rules applicable to services supplied to and received from third countries (which the UK will become from 1 January 2021)
  • when they are established in the UK, to examine whether new liability rules will apply to them with regard to their services supplied in the EU
  • to take the necessary steps in respect of services covered by MOSS
  • consider the changes in the VAT refund request procedures

The Notice does not cover the supply of goods nor digital services themself.

General

After the end of the transition period, the EU rules on VAT for services no longer apply to, and in, the UK. This has, particular consequences for the treatment of taxable transactions in services and VAT.

Businesses need to understand the probable changes and make preparations for a No-Deal Brexit.

VAT – Building your new home: How and what to claim

By   17 June 2020
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Building your own home is becoming increasingly popular.  There are many things to think about, and budgeting is one of the most important. 

The recovery of VAT on the project has a huge impact on the budget and care must be taken to ensure that a claim is made properly and within the time limits.  You don’t have to be VAT registered to make a claim, this is done via a mechanism known as The DIY Housebuilders’ Scheme.  It has specific rules which must be adhered to otherwise the claim will be rejected.

If you buy a new house from a property developer, you will not be charged VAT. This is because the sale of the house to you will be zero-rated. This allows the developer to reclaim the VAT paid on building materials from HMRC. However, if you build a house yourself, you will not be able to benefit from the zero-rating. The DIY Housebuilder’ Scheme puts you in a similar position to a person who buys a zero-rated house built by a property developer.

Who can make a claim?

You can apply for a VAT refund on building materials and services if you are:

  • building a new home in which you will live
  • converting a building into a home
  • building a non-profit communal residence, eg; a hospice
  • building a property for a charity

Eligibility

New homes

The house must:

  • be separate and self-contained eg; not an extension
  • be for you or your family to live or holiday in (not for sale when complete)
  • not be for business purposes (although you can use one room as a work from home office)
  • not be prevented from sale independently to another building by planning permission or similar eg; a granny annexe

A claim may also be made for garages built at the same time as the house and to be used with the house.

Contractors working on new residential buildings should zero rate their supplies to you, so you won’t pay any VAT on these.

Conversions

The building being converted must usually be a non-residential building eg; a barn conversion. Also, residential buildings qualify if they haven’t been lived in for at least 10 years.

You may claim a refund for builders’ work on a conversion of non-residential building into home. These supplies will be charged at the reduced rate of 5% for conversion works.  If the standard rate of 20% s charged incorrectly, you will not be able to claim the standard rated amount. Care should be taken that the contractor understands the VAT rules for conversions as these can be complex.

Communal and charity buildings

You may get a VAT refund if the building is for one of the following purposes:

  • non-business – you can’t charge a fee for the use of the building
  • charitable, eg; a hospice
  • residential, eg; a children’s home

What can you claim on?

Building materials – You may claim a VAT refund for building materials that are incorporated into the building and can’t be removed without tools or damaging the building.

What doesn’t qualify

You cannot claim for:

  • building projects outside the UK
  • materials or services that don’t have any VAT, eg;  were zero-rated or exempt
  • professional or supervisory fees, eg; architects and surveyors
  • the hire of plant, tools and equipment, eg; generators, scaffolding and skips
  • building materials that aren’t permanently attached to or part of the building itself
  • some fitted furniture, electrical and gas appliances, carpets or garden ornaments
  • supplies for which you do not have a VAT invoice

Examples of items you can, and cannot claim for are listed below.

How to claim

To claim a VAT refund, send form 431NB or 431C to HMRC

Local Compliance National DIY Team
SO987
Newcastle
NE98 1ZZ

What you need to know

You must claim within three months of the building work being completed.

You will usually get the refund in 30 working days of sending the claim.

You must include the following with your claim:

  • bank details
  • planning permission
  • proof the building work is finished eg; a letter from your local authority
  • a full set of building plans
  • invoices – including tenders or estimations if the invoice isn’t itemised
  • bills and any credit notes

VAT invoices must be valid and show the correct rate of VAT or they will not be accepted in the claim.

HMRC usually examine every claim closely and often query them, so it pays to ensure that the claim is as accurate as possible first time.  We find a review by us before submission ensures the maximum amount is claimed and delays are avoided.

Payments made after completion of the house cannot be claimed, and only one claim can be made for the whole project, so cashflow may be an issue.

Examples of items that you can claim for

The items listed below are accepted as being ‘ordinarily’ incorporated in a building (or its site). This is not a complete list.

  • air conditioning
  • building materials that make up the fabric of the property eg; bricks, cement, tiles, timber, etc
  • burglar and fire alarms
  • curtain poles and rails
  • fireplaces and surrounds
  • fitted kitchen furniture, sinks, and work surfaces
  • flooring materials (other than carpets and carpet tiles)
  • some gas and electrical appliances when wired-in or plumbed-in
  • heating and ventilation systems including solar panels
  • light fittings – including chandeliers and outside lights
  • plumbing materials, including electric showers, ‘in line’ water softeners and sanitary ware
  • saunas
  • turf, plants, trees (to the extent that they are detailed on scheme approved by a Planning Permission) and fencing permanently erected around the boundary of the dwelling
  • TV aerials and satellite dishes

Examples of items that you cannot claim for

This is not a complete list.

  • Aga/range cookers (unless they are solid fuel, oil-fired or designed to heat space or water)
  • free-standing and integrated appliances such as: cookers, fridges, freezers, dishwashers, microwaves, washing machines, dryers, coffee machines
  • audio equipment, built-in speakers, intelligent lighting systems, satellite boxes, Freeview boxes
  • consumables eg; sandpaper, white spirit
  • electrical components for garage doors and gates
  • bedroom furniture (unless they are basic wardrobes) bathroom furniture eg; vanity units and free-standing units
  • curtains and blinds
  • carpets and rugs
  • garden furniture and ornaments and sheds

Please contact us if you require assistance with a DIY Housebuild project.

VAT: Domestic Reverse Charge for construction services delayed until 1 March 2021

By   5 June 2020
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Further to my article on the Domestic Reverse Charge (DRC) for builders being deferred, HMRC has announced a further delay from 1 October 2020 until 1 March 2021 due to the impact of the coronavirus on the construction sector.

Revenue and Customs Brief 7 (2020 sets out the details.

Changes

HMRC announced that there will be an amendment to the original legislation, which was laid in April 2019, to make it a requirement that for businesses to be excluded from the reverse charge because they are end users or intermediary suppliers, they must inform their sub-contractors in writing that they are end users or intermediary suppliers. Details of the DRC here and here.







VAT: HMRC Toolkits updated

By   4 June 2020
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HMRC has updated the following online toolkits for June 2020:

Input tax

Output tax and

Partial exemption

The Toolkits

These toolkits can be a useful resource. Although designed for agents and advisers, they can equally be of assistance to businesses when completing VAT returns. The contents are based on HMRC’s view of how tax law should be applied, so they should not be used as a substitute for proper professional advice. These toolkits set out areas of risk, provide general checklists, details of record keeping and links to HMRC information.  Many find that these toolkits are more user friendly than “traditional” HMRC guidance and they address many contentious areas.

Overview

For a helpful general guide to input tax and checklist please see here. And an introduction to partial exemption here.







VAT – Input tax claims. Latest from the courts

By   1 June 2020
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Latest from the courts

In the recent First Tier Tribunal (FTT) case of Aitmatov Academy an otherwise unremarkable case illustrates the care required when making input tax claims.

The quantum of the claim was low and the technical issues not particularly complex, however, it underlined some basic rules for making a VAT claim.

Background

A doctor organised a cultural event at the House of Lords for which no charge was made to attendees. The event organiser as shown on the event form was the doctor. Aitmatov Academy was shown as an organisation associated with the event.  It was agreed that the attendees were not potential customers of Aitmatov Academy and that the overall purpose of the event was cultural and not advertising.

Issues

 HMRC disallowed the claim. The issues were:

  • HMRC contended that the expenses were not incurred by the taxpayer but by the doctor personally (the doctor was not VAT registered)
  • that if the VAT was incurred by the Academy, it was not directly attributed to a taxable supply
  • that if the VAT was directly attributed to a taxable supply, it was business entertaining, on which input tax is blocked

Decision

The FTT found that the Academy incurred the cost and consequently must have concluded that the Academy was the recipient of the supply, not the doctor.

However, the judge decided that the awards ceremony was not directly or indirectly linked to taxable supplies made or intended to be made by the Academy, and therefore that the referable input tax should not be allowed. Consequently, the court did not need to consider whether the event qualified as business entertainment.

On a separate point, the appellant contended that, as a similar claim had been paid by HMRC previously, she could not see the difference that caused input VAT in this case to be disallowed. The Tribunal explained that its role is to apply the law in this specific instance and as such it cannot look at what happened in an early case which is not the subject of an appeal.

Commentary

A helpful reminder of some of the tests that need to be passed in order for an input tax claim to be valid. I have written about some common issues with claims and provided a checklist. Broadly, in addition to the tests in this case, a business needs to consider:

  • whether there was actually a supply
  • is the documentation correct?
  • time limits
  • the VAT liability of the supply
  • the place of supply
  • partial exemption
  • non-business activity – particularly charity and NFP bodies
  • if the claim is specifically blocked (eg; cars, and certain schemes)

I have also looked at which input tax is specifically barred.

Finally, “entertainment” is a topic all of its own. I have considered what is claimable here in article which includes a useful flowchart.

As always, the message is; if a business is to avoid penalties and interest, if there is any doubt over the validity of a claim, seek advice!