Not for Profit VAT and Tax update – Q2 2022

Everything starts with good intentions, and I had hoped to be able to write this quarterly. It was all going so well, but then Q1 of this year did, of course, clash with our year end and somehow, I never recovered sufficiently to write anything in April, and then the last two months have flown by. But here we are with a Q2 update covering the various developments since I last wrote in January.

At the time I wrote this the weather was a mixture of sunshine and showers but as I put the final touches to it we are in the middle of a heatwave, so I am not sure whether going outside to read this is necessarily wise. Anyway I hope you enjoy the rest of the summer.

– Phil Salmon, June 2022

To download the full publication, click the link below.

HMRC issues guidance on VAT treatment of dilapidation payments

You will recall that HMRC released a Brief at the end of 2020 which set out its view that, as a result of certain European Court cases, certain payments which had previously been regarded as being outside the scope of VAT as being payments of compensation or liquidated damages were, in fact, consideration for the original supply of goods or services to which they related. In particular, this included dilapidation payments which were previously always seen as being outside the scope of VAT.

As noted in our communications in both November 2021 and January 2022, our understanding was that HMRC was backtracking on this point, and this has now been confirmed in the recent Brief that HMRC has introduced.

Within the Brief, HMRC has confirmed that if fees are charged when customers terminate a contract early, these will be regarded as further consideration for the supply made. However, when it comes to dilapidation payments HMRC has stated the following:

“Another potentially difficult area are dilapidation payments which occur in the land and property sector. These vary in the way they are provided for but broadly they exist to ensure landlords are not out of pocket if buildings are not returned in the agreed condition at the end of a lease. Our policy continues to be that these are normally outside the scope of VAT, see VAT Notice 742 Land and Property.

Again, the question that needs to be addressed is whether the payment is sufficiently linked to the supply of the lease to be regarded as further consideration for it. The service being supplied is the grant of an interest in the premises by way of a lease. It is the lease which creates the obligation to make such dilapidation payments. The obligation to make a dilapidation payment is not inevitable, rather the lease creates an obligation to return the property in the agreed state and it is the default on this obligation that gives rise to the requirement to make a dilapidation payment.

The tenant takes on a package of rights and obligations when entering the lease, one of which is to return the building in the agreed state. The rent will normally reflect those rights and obligations. If the tenant does not fulfil its obligation to return the building in the required state, it is required to make a further payment so the landlord can restore the building to the agreed condition, and it is in effect a re-imbursement of the cost of goods and services that the landlord faces incurring. It is arguable that this therefore represents additional consideration for the supply of the lease. If the obligation to return the building in the agreed state was not there it is probable that the rent would be set higher to allow the landlord to cover the costs of rectifying the building at the end of the contract.

On the other hand, if the tenant had exceeded the wear and tear that might reasonably be expected during the period of the lease, or even undertaken unapproved alterations, the dilapidation payment would be to rectify damage rather than for use of the premises and would be beyond what the landlord agreed the tenant could use the premises for. The link between payment and supply would therefore be broken. Although the payment arguably covers the landlord’s expenses in meeting the tenant’s obligation under the lease it may be difficult to establish that the rent has been set with that in mind. It may be that the rent in reality reflects what the market will bear and would not be increased if the dilapidation clauses were removed from the lease. In that case the dilapidation payment would be made to put right damage and there would not be sufficient link between the payment and the service(s) the landlord had agreed to provide under the lease. It would not therefore be further consideration for the lease.

Our policy having weighed these factors is not to treat dilapidation payments as further consideration for the supply of a lease. We might depart from that view if in individual cases we found evidence of value shifting from rent to dilapidation payment to avoid accounting for VAT.”

In other words, after a year of deliberating the position, HMRC is back where it started with dilapidation payments being seen as being outside the scope. However, HMRC has provided substantial commentary on the point which, if you were being cynical, might be seen as trying to save face. This is especially in light of the decision of the Outer House of the Court of Session in Ventgrove Ltd v Kuehne + Nagel having raised the question as to whether the Meo and Vodafone Portugal cases, on which HMRC had based their initial change of policy, were at all relevant in the first place.

If HMRC did want to change its policy in this area, then a better argument to support a change would have been not that the dilapidations payment was further consideration for the lease but is a payment to be released from the obligation to repair the building, and so the supply is the release of an obligation.

The positive is that we now have a degree of certainty regarding dilapidation payments and that these will continue to be treated as being outside the scope of VAT.

If you have any queries on the above, please do not hesitate to contact Stephen Patey, Senior VAT Manager.

Ramzan Khan

Ramzan has been a generalist for many years and has provided advice across all sectors. Ramzan’s portfolio includes NFPs, such as hospices and faith-based organisations, and also covers professional bodies and corporate organisations, with a particular focus now being the schools and CMT sectors.

Prior to joining haysmacintyre in 2015, Ramzan was a VAT inspector with HMRC for 10 years. His work mainly involved carrying out VAT inspections and VAT repayment enquiries for SMEs. However, he also worked on cross-tax evasion cases as both a VAT lead and a Cash Register/(EPoS)Till Interrogation Officer (which included organising and participating in surveillance), as well as taking part in HMRC strategic management projects (for example, tackling tax compliance through promoting behavioural change).

Ramzan’s spare time is spent with his three young children, he enjoys travelling to hot holiday destinations, board games and reading when opportunity arises.

VAT treatment of payment to exercise break clause

This uncertainty arose because, in September 2020, HMRC issued a Revenue & Customs Brief 12/20 (the Brief) regarding early termination fees and compensation payments. The Brief stated that following the Court of Justice of the European Union (CJEU) cases of Meo and Vodafone Portugal, it had become evident that such charges are normally considered as being for the supply of goods or services for which the customer had contracted, and that this was the case even if they were described as compensation or damages.

HMRC went on to state that any person who had failed to account for VAT on such payments should do so unless they had received specific advice from HMRC that such payments were outside the scope of VAT, in which case they only needed to account for VAT from the date of the Brief.

To say this caused some consternation, particularly with regard to payments in the property sector, is probably an understatement, and the Brief was quickly updated and re-issued on 25 January 2021. This stated that the updated VAT treatment set out in the Brief would only apply from a future date, but until then businesses could either continue to apply the previous treatment or follow the amended guidance – a sort of ‘do what you want’ tax policy.

As at the date of writing (7 January 2022), HMRC have issued no further updates to the Brief but have alluded, in their response to the call for evidence on the land and property VAT exemption, that guidance will be issued in February 2022 and that it is unlikely that dilapidations will become subject to VAT.

Where are we now?

The Outer House of the Court of Session (broadly equivalent to the High Court in England & Wales) released its judgement in the case of Ventgrove Ltd v Kuehne + Nagel on 22 December 2021. The case was not of itself a VAT case but depended on the VAT position of a type of payment referred to above.

Essentially Kuehne + Nagel was a tenant in a building owned by Ventgrove Ltd which had opted to tax the building. The lease had a break clause in it which could be exercised on payment of a fee plus VAT where applicable. Kuehne + Nagel sought to exercise the break clause in February 2021 after the amendment to the Brief had been issued.

They made the appropriate payment, but without VAT. Ventgrove Ltd took Kuehne + Nagel to court arguing that the break clause had not been validly exercised because the amount paid did not include VAT, which Ventgrove Ltd said was due.

The Court, perhaps not surprisingly, found for Kuehne + Nagel because as at the date of the exercise of the break clause, HMRC did not require VAT to be payable on a payment made in order to exercise a break clause under their policy prior to the issue of the Brief. They also did not require payment after the issue in the month before the break was exercised of the update to the Brief.

However, the interesting comments in the case are when the Court remarks that there has been no case where a court or tribunal has considered whether the exercise of an option to terminate a lease which is contained within the original lease is a taxable transaction. Nor was it the Court of Session’s job to do so since it was being asked not to opine on a VAT liability question, but on whether a break clause had been validly exercised.

It then, significantly, went on to remark upon the fact that the Meo and Vodafone Portugal cases, on which HMRC had based their initial change of policy in the Brief, related to compensation payable by the customer for terminating fixed period telecommunications contracts prior to the end of the fixed period and as such, “these cases are not directly in point.”

Compensation for failure to complete a minimum contractual term, calculated by reference to the remaining monthly charges, was not the same as a contractual entitlement to bring a contract to an end after a specified period upon payment of a fee. Nor was the lease terminated prior to the expiry of a minimum period, but at the end of a minimum period. The amount payable to exercise the break was not calculated based on any rent foregone because no rent had been foregone given that there was a contractual right to exit the lease at that time. Similarly, dilapidations are payments for damage done, not compensation for lost earnings.

Whilst the Court did not need to determine what the VAT position of a payment to exercise a break clause to answer the question it had been asked, the comments it makes do raise the question of whether the CJEU cases (which HMRC relied upon to seek to change its long established policy) are at all relevant and have any impact beyond the facts of those specific cases.

VAT in dilapidations

This raised the possibility that HMRC would take the view that dilapidation payments were subject to VAT at the standard rate, where previously they were deemed to be outside the scope of VAT.

The original Brief had stated that HMRC would be looking at such payments retrospectively which would have resulted in organisations suffering VAT assessments, even though the payments had been treated in line with HMRC’s previous policy. However, following several representations to HMRC, they withdrew this Brief and stated that the new policy would take effect from 1 February 2021 rather than being backdated. This was obviously positive in that it would prevent organisations suffering large assessments for historic payments, but it meant that tenants who were unable to recover all of their VAT were looking at an irrecoverable VAT charge on any dilapidation payments made from 1 February 2021 onwards.

To date, there has been no further Brief issued and we now understand that HMRC have backtracked further on this and that draft guidance has been prepared stating that dilapidation payments will not be deemed to be further consideration for a supply of a lease, meaning that they will continue to be outside the scope of VAT.

It is hoped that this is the case, and that this guidance will be issued soon to bring an end to the uncertainty HMRC’s pronouncements have caused.

We will of course update you as soon as further guidance is issued but in the meantime, please do not hesitate to contact Stephen Patey in our VAT department should you wish to discuss further.

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