Making all commercial land and property taxable at the standard rate with an option to exempt would be a substantial change to the system, with few obvious benefits. A register of options to exempt would also need to be established, and complexities which currently exist with the option to tax would surely be replicated in an option to exempt, with the disadvantage that the system will be unfamiliar to taxpayers and advisers.
Simplifying VAT on land by making short-term or minor interests subject to VAT is an area for possible change highlighted by the call for evidence which could have some merit, provided longer interests were exempt, and remained subject to the option to tax. This would simplify the legislation as it currently has to list many short-term interests such as car parking, hotel accommodation and the like so that they can be excluded from the exemption if they are supplies of land. What the cut-off date for ‘short term’ would be is perhaps problematic – a few days is not long enough but a year might be too long.
Another option mentioned in the call for evidence is to make most supplies of land and property subject to VAT but to exempt certain specified supplies of land and property, such as residential accommodation and charitable buildings. This would remove the option to tax, so would increase irrecoverable VAT for VAT exempt tenants and would make the regime much less flexible than it is currently, but does at least preserve the status quo for residential property.
A final option suggested in the call for evidence is to link the VAT liability of supplies of land and property interests to those that have been registered with the Land Registry. This suggestion has very little merit and fails to recognise that only legal interests are registered but that VAT applies also to beneficial interests. It would also presumably have to include an exclusion or a lower rate of VAT for residential property.
Some of the changes contemplated in the call for evidence could lead to increased VAT in relation to residential property. It is important that this is avoided. Having to charge VAT to tenants or incurring irrecoverable VAT for example, in relation to build to rent projects, could affect the viability of these projects as well as driving up costs for tenants. It is disappointing that HMRC are not restating a commitment to the benefit of zero rating in the sector.
The VAT and property system is undeniably complex, but most taxpayers and their advisers who deal with it regularly are experienced in its application. In our view, wholesale reform is not the answer. Instead, now that the UK is no longer bound by the EU VAT rules, the existing zero-rating provisions for residential and charitable properties – including relevant residential properties such as student accommodation – could be widened, which would also help to simplify the rules.
The government could also take the opportunity to reform the VAT and property rules so that they are more aligned to achieving the UK’s climate change targets. For example, alterations and repairs to existing buildings could carry a lower rate of VAT than new builds. Currently, in relation to residential property, the VAT system zero rates the construction of a new building but standard rates the potentially more environmentally friendly option of upgrading an existing building.
Other uncertainties in the VAT system are entirely of HMRC’s making and do not relate to the legislation. For example, the unexpected announcement in September 2020 that the VAT treatment of early termination payments and other compensation payments relating to commercial contracts was changing with retrospective effect resulted in confusion as to how property contracts were affected. Although HMRC announced in January that the change would not be retrospective, we are still waiting for clarification as to how property transactions will be affected. The VAT treatment of dilapidation payments in relation to commercial leases is a particular area of concern.
The call for evidence is open until 3 August 2021. It is important that HMRC hears from those who could be affected by the changes and so businesses are encouraged to respond to the call for evidence.