Building contractors are likely no longer to be required to pay VAT on subcontractors’ services on new build student accommodation following a First Tier Tribunal (FTT) tax ruling, although this will depend on the precise circumstances of each development
The FTT appeal concerned the VAT treatment of electrical services provided by Summit Electrical Installations Ltd sub-contractors at a new build student site in Leicester. [Summit Electrical Installations Ltd and Her Majesty’s Commissioners for Revenue and Customs, [2017] UKFTT 0564 TC06006].
The main contractor, Create Construction Ltd had received a certificate from the developer claiming relief from VAT on the basis that the new building would be used for a relevant residential purpose (RRP), ie, a communal building for students. Ordinarily sub-contractors working on RRP buildings are not entitled to zero-rate their services - VAT has to be charged at 20% which the main contractor must then reclaim on a VAT return.
However, like most modern student blocks, the units were designed as self-contained living accommodation including kitchenettes and en-suite bathrooms. While the planning consent restricted use to students, there was no clause preventing each unit from being separately used or sold. Create Construction refused to pay VAT on Summit’s services, on the basis that that this was the construction of dwellings and should therefore be VAT zero-rated.
The tribunal agreed that the student accommodation could be treated as ‘dwellings’ for VAT purposes. HMRC unsuccessfully argued that restricting occupation to students was a restriction on the separate use of each unit.
The tribunal then considered HMRC’s published policy which is that subcontractors must charge VAT if a certificate has been issued to the main contractor claiming zero-rating under the RRP relief, even if the construction would also meet the definition of dwellings. The judge agreed with Summit’s view that this view of the policy was ‘simply wrong’.
Glyn Edwards, VAT director at MHA MacIntyre Hudson, which helped take the case to the FTT, said: ‘The tribunal’s decision was a welcome relief for Summit Electrical Installations, but the principal winner in the dispute is Create Construction.
Create Construction has numerous sub-contractors in exactly the same position, and so faced the prospect of having to finance VAT payments to all of them on a multi-million pound development.
‘We hope that HMRC will now acknowledge the inaccuracy in their published policy on this type of buildings, as it has created considerable uncertainty in the construction sector.’
Summit Electrical Installations Ltd and Her Majesty’s Commissioners for Revenue and Customs, [2017] UKFTT 0564 TC06006 is here.
