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Tax – VAT

Compensation – or supplying a service?

There is no VAT due on compensation payments (eg an agreed dilapidations liability). But, in every situation you have to look at the nature of the payment – if it is genuinely compensatory then there will be no VAT, whereas if the recipient does something in return, then there is likely to be a VAT ‘supply’.  

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Development – zero-rating

A developer who acquires a bare or existing commercial site for redevelopment will have to pay VAT up-front. Often, the seller will have exercised an option to tax so VAT of 20% will be payable. While this will usually be recoverable, SDLT is charged on the VAT-inclusive price, and so paying VAT can lead to a higher SDLT charge.

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Residential – zero-rating

A property conversion can be zero-rated if it involves the conversion of a building from non-residential to residential. But, there has been much litigation on exactly how this provision works, and we now have important guidance from the UT.

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DIY builder – ‘dwelling’

The DIY builder scheme allows the refunding of VAT if the building is ‘designed as a dwelling’.

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Dwelling – more than one building

HMRC has changed its policy on VAT treatment of dwellings created from more than one building.

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Conversion – residential

Conversion of non-residential space into residential space can be zero-rated (thus allowing the developer to reclaim VAT on expenditure, but not have to charge VAT on sale). Zero-rating applies to the first grant of a freehold or leasehold (over 21 years) interest on the conversion of a non-residential building or a non-residential part of a building into a dwelling or a number of dwellings. Two points to note:
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Conversion – ‘non-residential’

The conversion of a ‘non-residential part of a building’ into residential use may well attract zero rating. But, there are conflicting decisions.
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DIY scheme – planning condition

 A self-builder of a dwelling is entitled to a refund of any VAT. But, this only applies ‘if the separate use or disposal of the dwelling is not prohibited by the term of any covenant, statutory planning consent or similar provision’.

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VAT groups – TOGCs

The general rule used to be that you ignore what happens inside a VAT group and pretend it does not happen. This explains why a letting to a group company inside the same VAT group was not enough to give you a transfer of a going concern (TOGC) and the advantages that flow from it.

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Conversion – ‘non-residential’

The conversion of a ‘non-residential part of a building’ into residential use will usually attract zero rating. But, a recent case shows that it might not be so straightforward if the premises are mixed use.
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