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The VAT rate applicable to the sale of commercial property may vary, depending on whether the seller has exercised an Option to Tax (OTT) election over the property. In the absence of an OTT, the sale of commercial property typically should not be subject to VAT. However, where the seller has been made an OTT, the sale should typically be subject to VAT at the standard rate of 20%.
If the property being sold forms part of the trade and assets of a business, or consists of the sale of a property rental business, the sale may be outside the scope of VAT, even where an OTT has been made by the seller, should specific conditions be satisfied.
Where VAT is payable on the purchase of a commercial property it may be recoverable by the buyer and, therefore, represent a cash flow issue only, dependent on the buyer’s use of the property. However, it will also increase the amount of Stamp Duty Land Tax (SDLT) payable by the buyer, as SDLT is calculated using the VAT inclusive purchase price of the property, which represents an additional cost.
In the event the VAT is not recoverable it should also represent an additional cost to the buyer and the buyer should ensure that they understand the basis for the seller charging VAT.
Given the various VAT treatments that may apply to the sale of a commercial property, and the potential impact for both the seller and the buyer, it is crucial the VAT status of the property is established as early as possible in advance of a sale progressing to avoid potential delays and unforeseen additional costs.
On the purchase of a property, it is best practice for the buyer to retain a copy of all decisions taken in respect of the taxable status, including a copy of any OTT election submitted to HMRC, with other relevant property certificates as evidence to support the VAT treatment for any subsequent sale.
This is particularly relevant following recent announcements made by HMRC indicating that, from 1 February 2023, HMRC will no longer provide written acknowledgement that a business has opted to tax a property. Any option to tax must be submitted, via e-mail only, and the automated response will be the only receipt or evidence that an option has been made.
HMRC will also no longer process requests confirming the existence of an OTT, except in limited circumstances, including situations where it is believed the OTT may have been made over six years ago.
In addition to confirming the VAT position, sellers should seek to protect themselves from unexpected additional VAT liabilities by ensuring the sales contract states the consideration payable is exclusive of VAT and reserving the right to charge VAT in addition to the amount payable.