The consequences for misunderstanding your property tax payments can be severe. But how bad can it really get? We take a look at the consequences the owner of Kenthouse Properties Ltd faced after failing to seek external tax advice, costing them almost £200,000.
Background
The taxpayer purchased a pub, in their own name, which featured residential accommodation upstairs. They were VAT registered and the taxpayer was charged VAT on their purchase. After buying the property, the owner received planning permission to create six flats on the upper floors of the property. They went on to develop the flats after the property was transferred into a company, where they were the sole shareholder.
The problem
HMRC disallowed the input tax charged on the transfer into Kenthouse Properties Ltd because the short-term rents were an exempt supply. The owner went on to express the view that this was an unfair outcome, as HMRC had the benefit of the output tax when the property was transferred to the company, yet had not allowed recovery of that tax in the company’s VAT return.
How could this have been avoided?
If the taxpayer had reached out for external tax advice, this could have been easily avoided as an expert tax team would have anticipated this situation arising as part of their approach to VAT planning. To have prevented this outcome, the taxpayer should have developed the flats and granted a major interest (a sale of the freehold or long lease exceeding 21 years) in the properties to their company. These would have been zero-rated and therefore no VAT would be charged to the company, which in turn would create VAT exempt supplies, and the owner would not be able to recover VAT on costs associated with renting the flats out.
How we would have helped
Our VAT & Indirect Tax team have extensive experience in tax planning relating to property development and construction works, and seek to ensure that our clients are not exposed to unnecessary VAT costs. We offer a range of expert tax advice, from scenarios in which an owner is seeking a means of developing a site and moving into a company prior to sale or letting, right through to complex land transactions. These include the sale of property rental businesses, assessing whether the sale meets the Transfer of Going Concern conditions, whether a development includes a mixture of residential and commercial elements, and whether any reliefs for particular developments are available for charitable bodies.
A quote from the HMRC tribunal:
“It is quite regularly the case that a transaction gives rise to the output tax that must be accounted for to HMRC on the side of the supplier, but does not give rise to recoverable input tax in the hands of the recipient. While the nature of the supply was the same, the recipient’s ability to recover input tax is affected by a great many factors, including the extent to which it is making taxable supplies, as was the case here.”
Kenthouse Properties Ltd vs HMRC is a good example of how a lack of understanding of VAT rules for property can create a problem that can become very costly. The mistake could have easily been avoided if the taxpayer had spoken to a VAT advisor as part of their business planning.
Our VAT experts have extensive experience in the tax efficient structuring of real estate development projects. Contact us today for advice on navigating tax on property transactions.