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 2005. 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 2005. 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:
TxN
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 23rd 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
• http://ec.europa.eu/taxation_customs/vies/ - 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
23rd 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 01 436 6477
E lorcan.orourke@ie.gt.com
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. www.grantthornton.ie
© 2015 Grant Thornton Ireland. All rights reserved.
Questions
& feedback
© 2015 Grant Thornton Ireland. All rights reserved.