A Supreme Court ruling means that organisations like care homes that have used leaseback arrangements will not be subject to retrospective VAT charges and could now save millions of pounds say leading tax and advisory firm, Blick Rothenberg.

Alan Pearce, VAT partner at the firm said: “ This is great news for owners and operators of new relevant residential properties (such as care homes and student accommodation) and certain properties used for a relevant charitable purpose.

“When these properties are first constructed, they qualify for zero rating. This is normally an absolute saving for the owners or operators as they are unlikely to be entitled to recover most of the VAT they incur.”
He added: “However, where the construction costs have been zero rated, there is a self-supply charge that can be can retrospectively applied where there is a dispose or change of use of the zero-rated building within 10 years of its completion. This can effectively reverse some or all the VAT savings and result in a significant payment of VAT to HMRC.

“Many owners and operators of these buildings will enter into sale and leaseback arrangements in order to fund the construction of the property or fund possible future construction projects. HMRC saw these arrangements as disposals and, in the case of Balhousie Care, sought to recover over £800k of VAT and interest payments.”

Alan said: “Balhousie appealed to the VAT Tribunal way back in 2016 and the case was finally decided by the UK Supreme Court when it issued its decision on 31 March 2021. It ruled in favour of the taxpayer with all five judges agreeing that the VAT charge only applied to a disposal when the taxpayer was left with no interest in the property.

“While Balhousie had disposed of its freehold interest, it had simultaneously taken back a 30-year leasehold interest and continued to operate the property as a care home. There was in effect no moment in time when Balhousie had no interest in the property. As a result, the assessment of VAT tiggered by the self-supply rules did not apply.”

He added: “ This is long-awaited good news for those organisations that have used leaseback arrangements to finance new residential or charitable buildings. As this is now settled case law, HMRC cannot appeal further.”

Alan said: “ HMRC has not yet commented on the practical implications of this decision. However, charities, care homes other organisations in similar circumstances (including some schools and universities) should be reviewing their arrangement to ensure they fall into line with the Balhousie decision and are not susceptible to challenge by HMRC.”