pkf francis clark - torquay property seminar - october 2016

Torquay Property Seminar19th October 2016

Chairman’s WelcomeAndrew Squires - Partner

pkf-francisclark.co.uk

Housekeeping

Follow us on twitter: @pkfFrancisClark

#TQPropertySeminar16


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Merger with Princecroft Willis

• 1 April 2016

• 11 partner office

• 120 staff

• Turnover £6.8m

• 2 offices

- Poole

- New Forest


PKF Francis Clark

PKF Francis Clark offices

https://www.google.co.uk/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&cad=rja&uact=8&ved=0ahUKEwjjkvvLys_MAhXC1RoKHQAhCIcQjRwIBw&url=https://www.linkedin.com/company/francis-clark-chartered-accountants&psig=AFQjCNFW6WfD0zu-KviYUE2JF1IU3cZoKQ&ust=1462972282204840


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About the PKF network

• Global network of legally independent firms bound together by a shared commitment to quality, integrity and the creation of clarity in a complex regulatory environment.

• PKF is in the top 12 of worldwide accountancy networks

• PKF in the UK is ranked, by AccountancyAge Top 50 Firms, as number 11 (operating as a network)

• Global network of over 300 independent member firms

• 440 locations in 150 countries

• A team of 14,000 including 2,600 partners

• Over $2.3bn worldwide revenue


Martin Hobbs became a Partner in the Torquay office on 1 April 2016

What is new in PKF Francis Clark?

Programme

Coping with NRCGT, ATED and additional rate SDLT– Karen Bowen

Capital Allowances & Commercial Property – Paul Collings

VAT and Property – Richard Staunton


Coping with NRCGT, ATED and additional rate SDLTKaren Bowen


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AgendaAnnual Tax on Enveloped Dwellings (“ATED”)

• An overview

• Reliefs from the charge

• Tax filings and deadlines

• ATED-related capital gains

• Action points

SDLT – the 3% surcharge

• What it is and when it applies

• Example of a common scenario

• Reliefs

Non-residents capital gains tax (“NRCGT”)

• Compliance

• Transfers between connected persons

• Tax advice


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Annual tax on enveloped dwellings (ATED)

Initially introduced to counter perceived SDLT abuse.

Annual charge from 1 April 2013 for UK dwellings/residential property:

• owned by companies, corporate partners and collective investment

schemes,

• worth over £2m on 1 April 2012 or date of acquisition if later.

• Starting threshold for ATED reduced:

• From 1 April 2015 properties over £1m

• From 1 April 2016 properties over £500,000


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Annual tax on enveloped dwellings (ATED)

Taxable value Annual charge

2013/14Annual charge

2014/15Annual charge2015/16 and

2016/17

Over £500,000 to £1m Not applicable Not applicable Not applicable/£3,500

Over £1m to £2m Not applicable Not applicable £7,000

Over £2m to £5m £15,000 £15,400 £23,350

Over £5m to £10m £35,000 £35,900 £54,450

Over £10m to £20m £70,000 £71,850 £109,050

More than £20m £140,000 £143,750 £218,200


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Reliefs from ATED charge

• Property rental business

• Dwellings open to the public

• Property developers

• Property traders

• Financial institutions acquiring in the course of lending

• Occupation by certain employees/partners

• Farmhouses

• Providers of social housing

Exempt: Charitable companies using dwelling for charitable purposes


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Non-qualifying individual occupationPossible trap – any occupation by a non-qualifying individual will cause an

ATED chargeable period unless either the “farmhouse” or “open to public”

reliefs apply. This is the case even if the non-qualifying individual pays a full

market rent for occupation.

Non-qualifying individual includes:• Individual connected to owner (e.g. who together with other connected

persons controls more than 50% of company).

• Partner of partnership

• Major participant (> 50%) in a collective investment scheme

• Settlor of trust which is connected to property owner

• Spouse, civil partner, sibling, lineal descendent or ancestor of a non-

qualifying individual and the spouses/civil partners of those individuals.


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ATED reporting/paymentATED annual return or ATED relief declaration.

• Return must be filed by 30 April in the relevant tax year eg 2016/17 return was due by 30 April 2016.

• A relief declaration form is needed for each type of relief relevant for the company.

• Late filing penalties apply - £1,600 if 12 months late even if no ATED payable!

• ATED payment also due by 30 April – 2016/17 payable by 30 April 2016.

• Adjustments must be made within 30 days of the end of the chargeable year.

• New acquisitions must be reported within 30 days (or 90 days for newly built dwellings) unless a relevant ATED relief declaration form has already submitted by company for the tax year.


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ATED – related capital gainsApplicable for any disposal of a UK residential property which has at any time during the period of ownership been liable to an ATED charge.

Ownership period may include mix of ATED and non-ATED-CGT gains – can be a very complicated calculation!

Valuation of property needed at date property came within scope of ATED:

• More than £2m: April 2013 • More than £1m to £2m: April 2015• More than £500k to £1m April 2016

Gain applicable to ATED chargeable period taxed at 28% without indexation relief.

Non ATED-CGT gain (after allowing indexation relief) is liable at corporation tax rate (if UK company or NRCGT gain)


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Action points

• Be aware that ATED implications may arise when a non-natural

person acquires a dwelling-house for more than £500,000.

• Advise corporate purchaser to take tax advice regarding ATED –

especially to check if they need to file an ATED form/pay ATED

within 30 days of completion.

• Acquisitions include transfers of residential property on

incorporation of a business.


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SDLT bands and rates for dwellingsSDLT rate

+3% surcharge from 1 April 2016

From 4 December 2014 (proportionate)

SDLT band max (without 3%)

Cumulative total (without 3%)

SDLT band max (with 3%)

Cumulative total (with 3%)

Difference of 3%

0%

0% on properties less than £40,000

£0 £0 £0 £0 £0 £0

0% 3% First £125,000 0 0 £3,750 £3,750 £3,750

2% 5% Then £125,000 to £250,000 £2,500 £2,500 £6,250 £10,000 £7,500

5% 8% Then £250,000 to £925,000 £33,750 £36,250 £54,000 £64,000 £27,750

10% 13% Then £925,000 to £1.5m £57,500 £93,750 £74,750 £138,750 £45,000

12% 15% Over £1.5mExcess

over £1.5m x 12%

+ 12% on excess

Excess over £1.5m

x 15%

+ 15% on excess

+3% on excess

Remember – companies acquiring residential property over £500,000 pay 15% on the full purchase price if it has a non-qualifying use.

LBTT applies at the same rates for residences in Scotland. LTT is due to come into force from April 2018 in Wales.


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SDLT 3% surcharge

• Applies to all residential property purchases over £40,000 by companies or collective investment schemes (unless acting as nominee for individual) and discretionary trusts.

• Generally applies to individuals acquiring an additional property (if they already own residential property anywhere in the world)

• Relevant for all co-owners purchasing a dwelling if at least one co-owner has an additional residential property at date of completion which is not excepted from the 3% charge.

• Spouses and civil partners treated as ‘one’

• Parents and minor children treated as ‘one’

• Residential property owned by a trust is an additional property for the life interest beneficiaries acquiring residential property.

• Likewise, residential property owned by a life interest beneficiary is ‘additional property’ for trustees of a life interest trust acquiring residential property.


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3% SDLT reliefs - individuals

The 3% surcharge is not applicable if:

• It replaces the individual’s former main residence (question of fact) sold within the last 36 months (transitional relief for purchases on or before 26 November 2018), or

• The only other property owned by the individual was inherited within the previous 36 months and the individual does not own more than 50% in the inherited property at date of completion.

• The property is acquired for consideration of less than £40,000.

• Caravans, mobile homes and houseboats are not subject to the 3% surcharge and are not regarded as ‘additional properties’.

• 3% is chargeable on purchase of additional property if former main residence is still owned – but refund of 3% may be reclaimed if the main residence is sold within 36 months

• Watch co-owner’s position – may invalidate 3% relief!


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Example

Sally and Dave get engaged. They each own their own homes and, in addition, Dave owns an investment property. They decide to place each of their homes on the market to sell so they can buy a new home together.

They find a new home and Dave finds a buyer for his place. They decide to go ahead with those transactions with Sally still needing to find a buyer for her home.

The completion of the purchase of the new property and sale of Dave’s home takes place on the same day.

Dave still has his investment property but he is replacing his former main residence so the 3% SDLT surcharge would not normally apply. However, Sally still has her property and they are co-owners, so the 3% SDLT applies to the purchase of the new property for both of them.


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Example – possible solutionsDave could acquire the new home in his sole name but;

• He may not be able to get a mortgage in his sole name,

• Sally may want to have an interest too – any future purchase of the property interest by her (perhaps when she has sold her property) would be another SDLT event,

• Dave could gift her a share in the property later. But watch SDLT on transfer of a mortgage to Sally. Also, any future gift must not be pre-agreed.

Option of Dave being sole owner is only possible if they are not married on the date of completion!

Sally could gift her former home to a discretionary trust before completing on the new purchase. But its value may be higher than the IHT nil-rate band and there are other tax implications to consider.

Or they could pay the 3% SDLT in the hope that Sally will sell her home within 36 months at which time they can reclaim the 3% surcharge.

Relevance of GAAR and SDLT anti-avoidance legislation must be considered for all planning


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What is residential property?

Any building “suitable for use” as a dwelling or which is in the “process of being constructed or adapted” for such use along with gardens and grounds.

Uncertainty over ‘suitable for use’ and ‘process of construction or adaptation’.

HMRC and Stamp Taxes Practitioners’ Group (STPG) working to establish more clarity.


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SDLT reliefsAlways consider whether a residential property acquisition qualifies for SDLT relief:

• Acquisitions of 6 or more residential properties may be treated as non-residential property so the lower commercial rates apply with no 3% surcharge.

• Alternatively, claim multiple dwellings relief – average of property values x number of properties at residential rates (possible for acquisitions of more than 1 property). 3% surcharge applies if averaged value is over £40,000.

• If the property acquired is a mix of residential and non-residential property, the non-residential rates apply.

• A transfer of residential property from a partnership to a company qualifies for full SDLT relief.

• A transfer of property between companies in the same group qualifies for full SDLT relief.

Planning for SDLT now an important consideration. If 3% surcharge looks to be applicable, always double-check availability of reliefs and if in doubt suggest buyer takes specialist advice.


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Non-residents capital gains tax (NRCGT)• Non-resident owners disposing of UK residential property after 5 April 2015 (regardless of value

of property or its use – so different to ATED)

• Disposals must be reported to HMRC using online NRCGT form including:

• Owners not liable to NRCGT because they are liable only to ATED-related CGT

• Owners qualifying for main residence reliefs that would reduce chargeable

gain to nil.

• Owners that are selling at a loss.

• April 2015 rebasing (default) or time apportionment (election) if property owned on 5 April 2015 to calculate NRCGT gain/loss.

• NRCGT return filing deadline is 30 days following completion of conveyance.

• Late filing penalties apply - £1,600 if 12 months late even if no NRCGT payable!

• Payment also within 30 days unless tax reference held (SA700, SA900 or ATED references) – if live tax reference, must also declare in the tax return for the year of disposal and pay on normal due dates.


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Transfers between connected persons

Nil gain/loss transfers falling within section 288(3A) TCGA 1992 are not reportable, including:

• between spouses/civil partners,

• between companies in same “NRCGT group” (only applicable if all companies are non-UK resident).


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Always recommend non-resident vendors to take UK tax advice

• Date of exchange is the CGT date of disposal whereas completion date denotes the deadline for NRCGT filing.

• If individual is leaving/coming back to the UK and is relying on split-year treatment, he must meet at least one of the split-year Cases per the Statutory Residence Test.

• Foreign incorporated companies are UK resident if they are managed and controlled in the UK – so may not be non-resident for NRCGT purposes.

• If a non-resident vendor resumes UK residence within 5 years of departure, further CGT may be payable when he resumes UK residence.

• Alternative options for calculating the NRCGT position for properties owned on 5 April 2015. Need to consider which is the best one to use.

• Gifts by non-residents are disposals at market value for tax purposes.

• Filing deadline 30 days from date of completing conveyance. Penalties for late filing.

Capital Allowances &Commercial PropertyPaul Collings


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Why Capital Allowances?

• Allowances are “misunderstood”

• Capital allowances can be significant

• If you do get it wrong…..


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What are Capital Allowances?

• Companies and Individuals are assessed to tax

on profit:

Sales 100,000Cost of Sales 60,000

Gross Profit 40,000

Insurance 5,000

Marketing 2,000

Postage etc. 1,000

Depreciation 4,000

Net Profit 28,000


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Basic Tax Computation

Net Profit 28,000Add back: Depreciation 4,000

Less: Capital Allowances (7,000)

Taxable Profit 25,000


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Capital Allowances

Different “Methods” of claiming

• Annual Investment Allowance - £200,000

• Writing Down Allowances – 18% or 8% reducing balance basis

• Capital Allowances claimed on a variety of items – reduce tax bills

- Machinery in a manufacturing business;

- Vans in delivery business

- Fixtures in a Commercial Building


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Annual Investment Allowance

Period from AIA1/6 April 2008 £50,0001/6 April 2010 £100,0001/6 April 2012 £25,0001 January 2013 £250,0001/6 April 2014 £500,0001 January 2016 £200,000

100% tax relief


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What might constitute a fixture?

• Lighting;

• Air Conditioning;

• Heating Systems

Can claim capital allowances on these parts of a building;

But NOT the bricks and mortar.

When a building changes hands the fixtures will transfer.


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Fixtures

• New rules from 2012 & 2014 only relate to fixtures

• Fixtures = plant & machinery installed/fixed to building or land


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For the Buyer to claim

• The Buyer must hold on “Capital Account”

• Since April 2014:

- Pooling Requirement

- Fixed Value Requirement

- Lose Capital Allowances??


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Fixtures - what properties?

Commercial properties

• Owner-occupied

• Landlords

• Furnished holiday lets

Not applicable to:

• Residential property

• Property developers (but their customers may be interested)


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Why are we here?


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Why are we here?

• Property Prices Increasing

• Assessments being made of commercial property;

• Formulaic Approach – replacement cost;

• Larger and larger claims being made – HMRC wanted to “cap the cost”.


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Properties most likely to gain….

Fixture-rich properties include:

• Hotels

• Restaurants/pubs

• Residential homes

• GP or dental surgeries

• Offices

• Furnished holiday lets


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Pooling Requirement

• “The vendor must include his expenditure in his tax computations”

• A Ltd purchased a property in 2009 and is selling it to B Ltd in 2017. B Ltd must have added them to his tax computations.


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Pooling Requirement

• Must “Pool” – but only if entitled to claim;

• Gives HMRC visibility as to “cost”

• We might need to consider when the property was acquired.


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Fixed Value Requirement

• Must determine a value for the fixtures;

• Value is used in both computations;

• S198 election

• If can’t agree then possibility of going to Tribunal – uncertainty and costs


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Pooling Requirement

• A Ltd purchased a property in 2009 and is selling it to B Ltd in 2017. B Ltd must have added them to his tax computations.

• One of the assets included is an air-con system – cost £20,000.

• Might be anything £0 - £20,000


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Bad Example

• Owner Sells in October 2017 (acquired 2011).

• Property sold - £1million – potentially £350,000 of allowances.

• S198 claim at £40,000.

• Later realises that fixtures on a 2012 extension were never claimed…..


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Inability to Claim

• Owners may have acquired prior to 2008

• Integral Features - An electrical system; - A space or water heating system; - A lift, escalator or moving walkway; - External shading


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Integral Features

• If incurred expenditure:

- Prior to April 2008 – cannot claim; - After that date – you can claim; - Integral Features – 8% - Other fixtures – 18%


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What is a fixture? What is an Integral Feature?

8% Integral features• Cold water systems• Hot water systems

(boilers, storage, pumps, pipework)

• Heating, ventilation & air conditioning systems

• Electrical systems• Lifts

18% Plant & machinery

• Sanitary appliances (WCs, basins, showers, etc)

• Fire fighting & warning installations (fire alarms, sprinklers, etc)

• Fitted kitchens


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Pooling Requirement

• Must “Pool” – but only if entitled to claim;

• Gives HMRC visibility as to “cost”

• We might need to consider when the property was acquired.


Integral Features and the Pooling Requirement

• The vendor has NOT been able to claim relief;

• Provides an opportunity for the purchaser – “tap in”

• Moving forward important to “grab” integral features;


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Summary of Key Points

• Importance of the s198 Elections;

• Additional allowances might be available if pre-2008;

• Possible Claim for Chattels;

• Critical that value “captured”


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Example 1

• Charlie bought an office building in 2002 and is selling it in 2017;

• He meets all conditions for most fixtures;

• Charlie is NOT entitled to claim for integral features

• The new owner can look to claim in respect of those integral features


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Example 2

• A Charity Owns a Freehold Block of Offices

• Now being sold - Acquired in 2010

• Never been entitled to claim

• No need for Fixed Value Requirement or Pooling requirement


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Example 3

• Oldco prepares accounts to 31 December

• Sells a property 1 November 2016

• Historically made losses – never bothered to look into “fixtures” on extension in 2003.

• Must be included in 2013 tax comps – nil impact on vendor.

• Integral features (pre-2008) claimed regardless


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Pooling

• Just because something is pooled doesn’t mean it has to be shared…..

• On one extreme an old owner might include a zero – old owner claims.

• Or – include maximum value – value in allowances is passed onto the purchaser.


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Fixtures Elections

• Signed by both parties;

• Submitted to HMRC <2 years;

• Amount “fixture by fixture”.

• Cannot exceed cost;

• Binding on ALL parties.


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Fixtures Elections

• Must NOT cover more than 1 property

• Only deals with fixtures – Not Plant/Chattels

• Theoretically – “fixture by fixture” basis


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What might be included on an election

• Assets that have always been General Fixtures (e.g Toilets) X

• Assets that were general but now special rate (e.g. lifts) X

• Assets (purchased since April 08) that are special rate expenditure for both Buyer and Seller X


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Elections - approach

• Negotiation between parties;

• Capped at a cost of a particular piece of equipment;

• Vendor’s tax written down value??

• £1? “You are getting relief for all the integral features on which I am unable to claim – but I am keeping the rest”.


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CPSE Enquiries

32.2 – “Has the vendor claimed capital allowances or allocated any expenditure on fixtures to a capital allowances pool”

32.3 – “If you have not pooled any expenditure……”


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CPSE Enquiries

A better question might have been…

“If there is any capital allowances expenditure on fixtures that you have not pooled......”


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Example….

• Your client is buying a care home – CPSE enquiries

• The vendor states that held “On Capital Account”.

• Queries ask “If you have not pooled any expenditure” – client answers “No”

• All remaining queries (up to 32.8) are answered “N/A”


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Example….

• “When we purchased the home, we agreed a figure of £25,000 for fixtures and fittings. We also claimed £10,000 for a new lift when we built an extension in 2010, and £6,000 for new furniture at the same time”.

• Advice?


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Example….

• When was the property acquired? Was it pre-2008?

• What did the £25,000 represent? Was an election signed? Was it fixtures or just chattels? What did the agreement say?

• Has there been an further capital expenditure? What has been claimed on the extension?

VAT and Property

Richard Staunton


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Agenda

• VAT update – Brexit

• Pitfalls

• Case Study

• Questions


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VAT Update – BrexitWhat type of Brexit – does it matter?

• The death of VAT?!

• European tax

• Soft Brexit – price to pay for access to single market?

• Follow EC rules, CJEU affects UK VAT

• Hard Brexit – pick and choose VAT law?

• Could make law that EC directives followed, but what

about UK court decisions?


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VAT Update - Brexit What could be affected?

• Hard Brexit, medium soft Brexit or somewhere in

between

• Some UK exceptions mainly around zero rating

• Imports from EC, Exports to EC

• Distance selling

• Export of services

• Financial services


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Pitfalls – Commercial buildings

• Standard rating applies to any sale of a new commercial

building within the first 3 years not just the first sale

• Charging VAT on commercial rents and not notifying

Option to Tax to HMRC within 30 days

• Opting to tax a building and not thinking through the

consequences

• Option to tax disapplied by purchaser

• Capital Goods Scheme adjustments


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Pitfalls – Zero-rating

• Does the property qualify as a dwelling? Are there any

restrictions on separate use or disposal?

• Is the building constructed in accordance with the

planning permission?

• Retrospective planning permission - no longer a

solution? Cavendish Green

• Affects contractors and DIY


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Pitfalls – Zero-rating

• Sub contractors working on relevant residential or relevant

charitable buildings (as opposed to dwellings) cannot zero-rate

their work, only the main contractor can zero-rate their services (if

certificate provided)

• How can you tell if the building qualifies for charitable use?


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Pitfalls –Transfer of a Going Concern

Advantage of TOGC is no VAT charge. Common obstacles:

• Immediately consecutive transfers

• Significant break in trade – property rental 3 month cycle?

• Purchaser not registered for VAT ‘Taxable person’

• Is a business being transferred or just assets?

• Will the purchaser use the assets to carry on same kind of business?


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Pitfalls –Transfer of a Going Concern

Further issues arise where property is involved:

• Has the vendor opted to tax?

• Are any of the commercial properties new?

• If yes, purchaser will need to make and notify his option to tax prior to the sale taking place

• Declaration by purchaser

• Could vendor revoke his option to tax?

• VAT incorrectly charged


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Pitfalls – Option to tax

• Stays in place for 20 years

• If deregister will still apply, forward look will apply for property sales, no exception

• If OTT not held VAT being charged not input tax?

• Lost OTT notifications, no longer needed

• What if HMRC ‘find’ an OTT later?


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Case Study

http://www.google.co.uk/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&uact=8&docid=HyytMmWkG0PN-M&tbnid=zDqgVcOsBOyqLM:&ved=0CAYQjRw&url=http://www.hobbyfarms.com/home-and-barn/building-a-barn-14916.aspx&ei=h1MwU97uJoOH0AWEzoDYBw&bvm=bv.62922401,d.ZGU&psig=AFQjCNEO6t1JHaHd_uf5Ni4EzBKe9lyZ5A&ust=1395762189656646





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Any questions?

http://www.google.co.uk/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&uact=8&docid=wUSZ4T9FGKN-QM&tbnid=HB3VQdDc-p7iHM:&ved=0CAYQjRw&url=http://themlmwhisperer.com/mlm/mlm-faqs-asking-the-big-questions&ei=hmMwU43zIqKR0AXF34HIBQ&bvm=bv.62922401,d.d2k&psig=AFQjCNFCyUyM1dosPlZhiWSBZ0rsz0pgmw&ust=1395766443190347

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pkf francis clark - torquay property seminar - october 2016

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