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© 2015 Grant Thornton Ireland. All rights reserved. VAT 6 March 2015 Lorcan O'Rourke Assistant Manager Indirect Taxes
© 2015 Grant Thornton Ireland. All rights reserved. VAT PART 1 VAT on Leases PART 2 VAT Requirements for Invoicing
© 2015 Grant Thornton Ireland. All rights reserved. Part 1 VAT on Leases
© 2015 Grant Thornton Ireland. All rights reserved. Background: the old system properties developed post 1972 in ‘VAT Net’ leases of less than ten years i.e. short leases, were treated as supply of ‘service’ short leases were exempt but ‘waiver’ could be put in place leases of more than ten years were treated as a supply of ‘goods’ capitalised value used for long leases Economic Value Test (EVT) required to be satisfied
© 2015 Grant Thornton Ireland. All rights reserved. Problems encountered in old system knowing VAT history of the property artificial split between long and short leases ‘waiver’ applying to all sort term let properties was an issue ‘self supply' of reversionary interest on leases between 10 and 20 years- absolute VAT cost for landlord economic value test Issues complexity for ordinary transactions
© 2015 Grant Thornton Ireland. All rights reserved. New lettings of property post 1 July 2008 no distinction between long and short leases all leases are exempt from VAT (except ownership-type leases i.e. freehold equivalent) cannot recover VAT on acquisition/ development or maintenance where VAT not charged on rent landlord can ‘opt to tax’ (VAT at 23% chargeable on rents and only for commercial properties) the option to tax will be on a property by property (lease by lease basis) if landlord and tenant are connected (broadly defined) and tenant does not have at least 90% VAT recovery, landlord can not opt to tax landlord can cancel an option to tax at any time
© 2015 Grant Thornton Ireland. All rights reserved. Letting of property - acquired or developed post 1 July 2008 Option to tax can be exercised by the Landlord alone option exercised by: ─including a clause in the lease agreement that VAT is chargeable, or ─issuing a document notifying the tenant that VAT is chargeable
© 2015 Grant Thornton Ireland. All rights reserved. VAT clauses in lease agreements landlord's option to tax letting option to tax must be in writing to the tenant no formal lease? rental invoice with VAT included no Revenue consent required to opt to tax a letting Revenue audit – written documentation essential review of VAT clauses
© 2015 Grant Thornton Ireland. All rights reserved. Letting of property - acquired or developed post 1 July 2008 Option to tax no option to tax can be made where: ─landlord and tenant are connected and tenant is entitled to less than 90% input tax or ─property is residential Connected parties: ─spouse, relative, partnership, trustee to settlor & beneficiaries, control of a company or partnership
© 2015 Grant Thornton Ireland. All rights reserved. Letting of property - acquired or developed post 1 July 2008 Option to tax option terminated where: ─landlord and tenant agree in writing, or the landlord issues a document notifying the tenant. Must specify the date of termination or ─the landlord and tenant become connected persons (unless tenant entitled to recover at least 90% of VAT) ─property starts to be used for residential purposes.
© 2015 Grant Thornton Ireland. All rights reserved. Opt to tax VAT clause should cover the following: obligation for the tenant to inform the landlord if the tenant becomes aware that it has become connected to the landlord obligation for the tenant, if it does become connected, to keep the landlord informed of its VAT recovery entitlement in relation to the rent confirmation that the tenant will not allow someone connected to the landlord to occupy the premises require the tenant to indemnify the landlord if the landlord has a VAT cost as a result of becoming connected to the tenant or the occupant.
© 2015 Grant Thornton Ireland. All rights reserved. Letting of property example Develco constructs a new office block and recovers all of the VAT on the associated costs. It decides to let part of the building to a VAT-registered trading company, part to a bookmaker who makes VAT exempt supplies and part to a financial institution (also making VAT exempt supplies) with which it is ‘connected’. Will the lettings be subject to VAT? A – Develco will likely opt to tax the letting to the trading company as this tenant can recover the VAT on the rent.
© 2015 Grant Thornton Ireland. All rights reserved. Letting of property example B - Develco may opt to tax the letting to this tenant (bookmaker) although commercially it may be more attractive not to opt to tax this letting. By not opting to tax the letting, the landlord will be able to achieve a higher rent from the bookmaker but will need to repay the VAT recovered on the development of this portion of the building. C – Develco is not entitled to opt to tax this letting as it is connected to the tenant and the tenant is engaged in solely VAT exempt supplies. No VAT will therefore arise on the rental income from the financial institution but Develco will need to repay the VAT which was recovered on the development of this portion of the building.
© 2015 Grant Thornton Ireland. All rights reserved. Transitional measures - properties and leases held on 1 July 2008 most complicated part of the new system caters for existing properties (freehold and leasehold interests) VAT treatment depends mainly on whether or not the owner (or tenant) was entitled to VAT recovery when the interest was acquired.
© 2015 Grant Thornton Ireland. All rights reserved. Assignment or surrender of a ‘long lease’ - held on 1 July 2008 Assuming the tenant was entitled to recover VAT on the acquisition of the interest: Assignment/surrender is subject to VAT for 20 years from acquisition of interest. Example Trade Co was granted a 30 year lease in The capitalised value of the lease was €10,000,000 and the VAT arising was €1,350,000. Trade Co was entitled to 100% recovery and the VAT 4A mechanism was used. Trade Co assigns the lease in 2010 to another company (the assignee). VAT arises on the assignment and the amount of VAT is €1,012,500 (€1,350,000 *15 / 20) – Note: the VAT amount is based on 15 years out of 20 being left even though the lease was originally a 30 year lease.
© 2015 Grant Thornton Ireland. All rights reserved. Assignment or surrender of a ‘long lease’ - held on 1 July 2008 Assuming the tenant was not entitled to recover VAT on the acquisition of the interest: Assignment/surrender is exempt but parties can opt to tax. Example Bank Co was granted a 30 year lease in The capitalised value of the lease was €10,000,000 and the VAT arising was €1,350,000. Bank Co was not entitled to any VAT recovery and so paid the VAT to the landlord. Bank Co assigns the lease in 2010 to another company (the assignee). The assignee has 100% recovery and the parties agree to opt to tax the agreement. VAT arises on the assignment and the amount of VAT is €1,012,500 (€1,350,000 *15 / 20) – Note: the VAT amount is based on 15 years out of 20 being left even though the lease was originally a 30 year lease. Bank Co gets a refund of VAT from Revenue in the amount of €1,012,500.
© 2015 Grant Thornton Ireland. All rights reserved. Assignment or surrender of a ‘long lease’ Held on 1 July 2008 VAT due calculated as follows: T x N Y T = VAT on acquisition/most recent development N = Number of intervals + 1 remaining in adjustment period (length of lease if <20 years or 20 years of lease longer than 20 years if developed Y = Total number of intervals in adjustment period
© 2015 Grant Thornton Ireland. All rights reserved. Surrenders of leases abandonment by tenant ejectment forfeiture failure to extend a lease treated as a lease for 10 years or more (only for leases pre July 2008)
© 2015 Grant Thornton Ireland. All rights reserved. Waivers of exemption (short lettings) existing waivers continue to apply until cancelled by the landlord – cancellation payment may be required letting made on or after 2008 is covered by an existing waiver where the property was acquired/developed prior to that date no new waivers can be granted on or after 1 July 2008
© 2015 Grant Thornton Ireland. All rights reserved. Waivers of exemption (short lettings) no new waivers for residential property on or after 2 April 2007 existing waiver can apply to residential property in development on 2 April 2007 existing waiver can also apply to commercial property which was in mid-development on 18 February 2008
© 2015 Grant Thornton Ireland. All rights reserved. Cancellation of a waiver of exemption If you cancel your waiver of exemption then: you will no longer have to charge VAT on your lettings (unless you put an option to tax in place); and you may have to pay a cancellation sum to Revenue. Basically the cancellation sum is the difference between the VAT recovered on acquiring or developing the property (or properties) and the VAT paid on the rents from the property (or properties).
© 2015 Grant Thornton Ireland. All rights reserved. Connected parties if tenant has less than 90% recovery and if parties are connected, then the waiver will be cancelled automatically unless the VAT charged each year meets a certain minimum amount effectively, VAT reclaimed on acquisition must be paid back within 12 years
© 2015 Grant Thornton Ireland. All rights reserved. Lease Variations where the lease variation is to extend the term of the lease it is deemed the grant of a new lease from the date that the existing lease expires. No surrender of the existing lease and no VAT obligations arising out of the deed of variation other than those which would normally arise if a new lease were granted. where the lease variation is to reduce the rent there are no VAT implications. where the lease variation reduces the floor area of the lease there will be a partial surrender of the lease which may have VAT implications. If the lease being varied is a legacy lease there will be of a partial surrender of a lease.
© 2015 Grant Thornton Ireland. All rights reserved. Dilapidations Revenue confirmed its position regarding dilapidation payments: "dilapidation payments by tenants to landlords generally represent compensation for "want of repair" and do not constitute consideration for any taxable supply. In these circumstances the payments are outside the scope of VAT"
© 2015 Grant Thornton Ireland. All rights reserved. Tenants Refurbishments Where a tenant who has an occupational lease carries out a refurbishment to the property and then assigns or surrenders the lease within ten years of acquiring it, then it will have to pay back some of the VAT recovered on the refurbishment unless: The tenant who carried out the refurbishment was entitled to recover all of the VAT charged; The tenant who carries out the refurbishment enters into a written agreement with the assignee/landlord confirming that the landlord will take over the tenant’s responsibility in relation to the capital good created by the refurbishment; and The tenant provides the assignee/landlord the capital good record for the refurbishment.
© 2015 Grant Thornton Ireland. All rights reserved. Practical Considerations for Tenants and Landlords A tenant can consider asking the landlord not to ‘opt to tax’ the letting and instead offer to compensate him for the claw-back that he will suffer as a result of creating an exempt letting. This amount may be significantly lower than the amount of VAT that would be paid over the term of the lease. if you have lettings, ensure that the terms of the lease contain a clause which covers you if the tenant does something that triggers a claw-back of VAT. as landlord, ensure the clause in any lease allows you to opt to tax a letting. if you are a VAT exempt tenant paying VAT on rents, try to find out when your landlord could cease to charge VAT without suffering a claw-back of VAT and ask him not to charge!
© 2015 Grant Thornton Ireland. All rights reserved. PART 2 VAT Requirements for Invoicing
© 2015 Grant Thornton Ireland. All rights reserved. VAT Registration and VAT returns Irish established businesses VAT registration required where supplies of services exceed €37,500 in a 12 month period. (Registration threshold for goods is €75,000) VAT returns – completed on a bimonthly basis – filed and paid electronically via ROS by 23 rd day of month following the VAT period Annual return of trading details Disallowance of VAT input credit - where supplier has not been paid within six months
© 2015 Grant Thornton Ireland. All rights reserved. VAT Invoicing List of items to be included on VAT invoices: detailed description of the goods or services supplied local currency supplier and customer details supplier's VAT number date on which the supply was made a sequential number which uniquely identifies the invoice consideration exclusive of VAT – unit price – any discounts or price reductions given VAT rate and amount customer's VAT number (if sold to a business within the EU) appropriate narrative if reverse charge or intra-Community supply of goods
© 2015 Grant Thornton Ireland. All rights reserved. VAT VIES Statements VAT Information Exchange System (VIES) = database available to VAT authorities containing information on supply of goods and services to EU business customers VAT registered person who dispatches goods to VAT registered persons in other EU Member States is obliged to file a periodic VIES Statement accountable person must file VIES statement if they supply services to VAT registered customers in other EU States, and the customer is liable to pay reverse charge VAT on the supply - link to the Europa website where a business can check the validity of its European customers' VAT numbers
© 2015 Grant Thornton Ireland. All rights reserved. VAT VIES Statements There is no threshold for filing VIES statements for services VIES are filed electronically, on a quarterly basis (Jan/Feb/Mar etc.) by 23 rd day of the month following the quarter A trader must file VIES returns for goods on a monthly basis where the value of the supplier’s intra-Community supplies of goods in a calendar quarter (or in any of the previous four calendar quarters) exceeds €50,000
© 2015 Grant Thornton Ireland. All rights reserved. Contacts Lorcan O'Rourke Assistant Manager, Indirect Taxes T E This briefing is provided for general information purposes only and is not a comprehensive or complete statement of the issues to which it relates. It should not be used as a substitute for advice on individual cases. Before acting or refraining from acting in particular circumstances, specialist advice should be obtained. No liability can be accepted by Grant Thornton for any loss occasioned to any person acting or refraining from acting as a result of any material in this briefing. Grant Thornton, Irish member of Grant Thornton International, is authorised by the Institute of Chartered Accountants in Ireland to carry on investment business.
© 2015 Grant Thornton Ireland. All rights reserved. Questions & feedback
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