Generally speaking, commercial property transactions – sale or lease – are exempt from VAT. The exceptions to this rule are where a property is less than three years old, or where a landlord/seller has elected to charge VAT; in these instances, VAT is applied at the standard rate (presently 20 ).

If a property is VAT-exempt, this can be a good thing for a purchaser, but not always for the other party: because sellers or landlords dealing in VAT-exempt property are unable to recover the VAT amounts on associated expenditure. If a seller or landlord has spent a considerable amount on a property renovation, for instance, they may seek to recover the related VAT costs – but if the property is exempt from VAT, they’d be unable to do so.

VAT and Commercial Property: Opting to Charge VAT

For the reasons stated above, many commercial property owners opt to charge VAT at the standard rate. By charging VAT on any supplies they make that are associated with that property, they are then able to recover VAT charged to them on any property-related expenditure

If you’re considering electing to charge VAT on a commercial property, you must take care to comply with certain regulations, as follows:

• This is an ‘opt-in’ procedure – you must actively make the decision to charge VAT on the relevant property. HMRC must be notified in writing within 30 days.
• Once HMRC has been notified, this decision lasts for 20 years (and is sometimes referred to as the ’20 year rule’).
• The decision needs to be timely – ideally before any exempt supplies are made in respect of the piece of land/property in question. Should you make exempt supplies before deciding to opt to charge VAT on a particular property, you will need to get special permission from HMRC to charge VAT on future supplies.

VAT and Commercial Property: Things to Consider

What is the market for the property like?

If you’re considering electing to charge VAT on a property, you should first consider the clients you’re likely to encounter. If your potential buyers or tenants are likely to fall into certain sectors – banks or charities, for instance – opting to charge VAT could have a negative impact on your business, as these industries make exempt supplies.

What’s the seller’s position?

If you’re purchasing a commercial property and are thinking about your tax position, you should consider the seller’s VAT position, too. If they opted to tax the property more than 20 years ago, you should find out if they can opt to reverse the election by submitting form VAT1614J before the sale takes place – this would mean that the sale could be an exempt sale which would avoid the 20 tax charge. Whilst you would be able to claim the input tax if the property transaction were not exempt, reversing the election might offer a substantial saving, as SDLT is charged on the VAT inclusive price; moreover, it could be beneficial for cashflow purposes, as you would not need to pay VAT on the sale and then wait three months to reclaim.

Do not be alarmed by the prevailing myth that if the seller has opted in to VAT tax on the property, the buyer must also opt in or they would be unable to reclaim the VAT charges. If you intend to use the property for taxable purposes, you would be able to claim input tax; and, moreover, as explained previously, the process is entirely ‘opt in’. A property is not automatically ‘opted’ – each owner or landlord must make the decision themselves.

VAT and Commercial Property: Transfer of Going Concern

A final consideration: if the property that is being sold has tenants in place or an existing lease, and you intend to continue to run a property rental business from the premises, you may also benefit from another caveat: the terms of a Transfer of Going Concern (TOGC). As a TOGC falls outside the scope of VAT, no VAT will payable – however, you as the buyer would need to match the seller’s VAT position by the transfer date (meaning that if the vendor had opted to charge VAT on the property, you would need to have notified HMRC of your intention to do the same – and they would need to have received this information – by the transfer date).

Whatever type of commercial property transaction you are embarking on, advice is crucial. You’ll be in safe hands with IBISS & Co: experts in property taxation and VAT, and always up to date with the latest legislation, our team will ensure that your sale or purchase puts you in the strongest position when it comes to avoiding unnecessary tax liabilities. Get in touch today to learn more about our services.