In response to developments in case law, in September 2020 HMRC announced an important change to its policy relating to the VAT treatment of early termination fees and compensation payments. This announcement may be viewed here.
This change caused controversy and, after forceful representations by industry and trade bodies, HMRC has now withdrawn its requirement for a retrospective application of the change. Whilst the narrative in Revenue & Customs Brief 12(20) still (incorrectly) states a need for retroactive adjustments and error corrections, this is superseded by the rider:
After communication from businesses and their representatives, HMRC has decided to apply the updated VAT treatment set out in this brief from a future date.
We will issue revised guidance, and a new Revenue and Customs brief to explain what businesses need to do shortly. This will include guidance on what to do if they have already changed how they treat such payments because of this brief.
Until that guidance is issued businesses can either:
- continue to treat such payments as further consideration for the contracted supply
- go back to treating them as outside the scope of VAT, if that is how they treated them before this brief was issued
We anticipate that a likely implementation date will be February or March 2021 and there continues to be representations to HMRC not only on the implementation date but also the scope of the change, particularly as regards dilapidation payments due from departing tenants that have rented property.
As far as dilapidations are concerned it appears that these will seldom fall outside the scope of VAT where contracts require tenants to return the property at the end of a lease in the same condition as when it was first occupied, and if they do not do so the landlord may charge them for the costs incurred in doing remedial work. HMRC is of the view that in most cases these payments are further consideration for the supply of the property because there is a direct link between the payment and the supply, and there is reciprocity as the tenant has signed up to return the property in the condition they obtained it. Where a landlord has not opted to tax and a tenant is fully taxable it may be more effective for the tenant to incur the cost of remedial work (to avoid the need to fund irrecoverable VAT if the landlord undertakes the work). In other scenarios the final outcome will need to be considered on a case by case basis to evaluate the most effective approach from a VAT perspective.
As regards the broad question, “How should businesses deal with this issue?”
If you have received early termination fees, liquidated damages or similar compensation payments from your customers in the past four years, it is especially important to consider if this change applies to you. Any retroactive application will be voluntary but there may be cases in which it is advantageous to do so. For example, if VAT should have been charged to someone with a right to reclaim it (for whom a retroactive VAT charge would not increase costs) recognising a taxable supply might lead to an ability to reclaim additional VAT on related costs – for example by increasing taxable turnover in partial exemption calculations. Where it is not possible to charge VAT to customers retroactively, it may still be possible to agree an additional input VAT recovery with HMRC. Any decision on this should be made only after a careful evaluation.
It is essential to consider new contracts in the context of these changes. Taxpayers need to ensure that they do not lock themselves in to contract terms that do not provide the flexibility to deal with any new obligation to account for VAT. It is important that this VAT can be passed on as a charge to customers if a supplier is not to suffer a large cost.
The final point is that if HMRC selects an implementation date this may not provide fair protection to all taxpayers. For example, if a contract was signed in 2020 but runs for several years then that contract may not provide the supplier with the right to add VAT to charges. In our view such a taxpayer has a legitimate expectation that they should not be penalised and a key point is HMRC’s policy at the time a contract was agreed. Taxpayers may need to make representations on this point.
Please note that this blog post is intended to provide a general overview of the subject. No liability is accepted for the opinions it contains or for any errors or omissions. Constable VAT cannot accept responsibility for loss incurred by any person, company or entity as a result of acting, or failing to act, on any material in this blog post. Specialist VAT advice should always be sought in relation to your particular circumstance.