Introduction of the VAT domestic reverse charge for building and construction services

*Update* HMRC has published Revenue and Customs Brief 10 (2019) confirming that the implementation of the domestic reverse charge VAT for construction services has been delayed for a period of 12 months until 1 October 2020 to give users more time to prepare. This will also avoid the changes coinciding with Brexit.  Industry representatives had raised concerns that some businesses in the construction sector are not ready to implement the VAT domestic reverse charge for building and construction on 1 October 2019. In the intervening year, HMRC will focus additional resource on identifying and tackling existing perpetrators of the fraud. It will also work closely with the sector to raise awareness and provide additional guidance and support to make sure all businesses will be ready for the new implementation date.

 

The article below has been updated to reflect the delay of the implementation date.

The introduction of the VAT domestic reverse charge (“reverse charge”) from 1 October 2019 for non-charitable entities working in the construction industry has brought tax back into the spotlight within the sector.

The new reverse charge legislation, means that the customer (i.e. the party making payment for construction services) in the transaction will now become responsible for accounting for VAT. HMRC has published its own detailed guidance for businesses affected by the Reverse Charge. It is important that charities are aware of this change and whether it impacts their organisation in any way by establishing what is considered as “noncharitable” and “charitable” to ensure effective preparation can be put in place prior to 1 October 2020.

What is the impact of the domestic reverse charge?

The Government has confirmed the following:

  • The reverse charge will be applicable to what are regarded as construction
    operations for Construction Industry Scheme (CIS) purposes. As a result, this
    complex area has been brought back into the spotlight.
  • To prevent the provider of the goods or services from disappearing or failing to pay the VAT due, the purchaser of the goods or services (the customer, not the supplier) will account for the VAT due to HMRC by declaring the VAT due as output tax on its VAT return. The purchaser will also be able to reclaim the VAT as input tax under the normal rules.
  • The domestic reverse charge will apply from 1 October 2020, to give time for
    businesses to incorporate the new rules into their existing processes, including
    accounting and IT systems.
  • Sales to an end user (a business that does not make supplies of construction
    services) or domestic customer will be outside the scope of the reverse charge.
  • As an anti-avoidance measure, there will be no threshold to exclude any business, widening the scope of the changes.
  • Affected businesses will have statutory invoicing and reporting requirements similar to other reverse charges.
  • Organisations will not be required to operate the reverse charge on exempt or zero rated supplies.

What is the role of the end-user?

  • Under the new legislation, end users will be the recipients who use the construction services or building for themselves, and do not sell the services on as part of their business operations. This will include landlords and tenants connected to the end user, i.e. Housing Associations.
  • If an organisation considers that it is an end user for the reverse charge, it should make the contractor aware of this fact to ensure VAT is charged in the normal way. HMRC guidance suggests that the end user should inform the contractor in a written form which can be retained for future reference.
  • If the end user does not provide its supplier with confirmation of its end user status it will still be responsible for accounting for VAT under the reverse charge.

What are the reporting and invoicing requirements?

Affected organisations will have reporting and invoicing requirements that may, at first, seem counter-intuitive to those who have no experience of the reverse charge. The supplier is still required to issue a valid VAT invoice, and this must include all of the information normally required on a VAT invoice. This should include reference to the amount of VAT liable on the supply; however, the supplier must not charge this as VAT on the invoice. Instead, the supplier must directly reference that the VAT reverse charge applies to the supply.

HMRC have confirmed that the following reference will meet the invoicing requirements:

“Reverse charge: VAT Act 1994 Section 55A applies”

Unlike standard VAT accounting procedures, businesses making reverse charge
supplies must not account for the amount of VAT subject to the reverse charge in the
box 1 figure on the VAT return. Instead, the customer will account for the amount of VAT due under the reverse charge in its box 1 figure. The amount of VAT payable as output tax will also be reclaimable as input tax in the customer’s box 4, subject to the normal partial exemption rules. The supplier should account for outputs (net sales) in box 6, and the customer should account for inputs (net sales) in box 7 using the usual accounting procedure.

Impact on Charities

Broadly, where an organisation is considered a charity for corporation tax purposes, it will be exempt from operating CIS. Within the sector it is common for many charitable organisations to have trading subsidiaries which have been set up without charitable status. As a result a CIS registration requirement is necessary where any of these entities carry out construction operations, either due to their operations including construction, or as a result of exceeding the deemed contractor threshold.

Charities will benefit from an exemption to account for VAT under the reverse charge where they are acting as an end user. This will apply where the charity is acquiring the construction services in the course of servicing its own stock or assets, i.e. the charity is acting as the final customer.

Unlike CIS, where a charity is acting as end user and engages its trading subsidiary to
perform construction services, there will be no requirement for the trading subsidiary to account for VAT using the reverse charge, i.e. VAT will be accounted for under the normal method.

In order to ensure that the charity is not caught out by the new legislation, all subcontractors acting within the supply chain should be informed in writing of the charity’s end user status. The charity should inform its subcontractors of its trading subsidiaries which are also included in the supply chain as an end user. This treatment will ensure that VAT is correctly charged and accounted for, and there will be no requirement for the charity to operate reverse charge.

The default position where an end user does not inform its subcontractors of the correct status is for VAT to be accounted for under the reverse charge so it is important that benefiting charities report this to their subcontractors.

Trading subsidiaries that perform external construction works, i.e. not for its charity, will not benefit from end user status. As such they will be required to operate the construction reverse charge in the normal way.

Will there be any changes to the Construction Industry Scheme (CIS)?

Despite no legislative changes to CIS we have seen increased activity from HMRC within the sector, including compliance visits where a number of common errors have been identified by HMRC.

Typical compliance errors which often arise in CIS include:

  • Failure to determine that a construction contract is within CIS
  • Incorrectly excluding activities from CIS
  • Subcontractors overstating material elements or including the cost of their own plant or their own scaffolding as a deduction
  • VAT registered subcontractors including VAT as part of their material costs; and
  • Failure to apply CIS to certain recharges between entities within an organisation.

Summary

The impacts of these changes are wide-ranging; it is crucial for affected organisations in the sector which have qualifying entities operating in the construction industry to start planning now, to ensure they are ready for the changes from 1 October 2020.

Key action points include:

  • Training key internal stakeholders with responsibility for aspects of your existing CIS processes – typically Finance, Accounts Payable, Procurement and Payroll staff.
  • Ensuring the organisation is clear on the operations which are within the scope of CIS and the reverse charge.
  • System reviews – update VAT accounting and invoicing procedures / policies to
    ensure the domestic reverse charge is applied correctly.
  • Determining if an organisation is an end user for the reverse charge, and if so
    ensuring the correct VAT treatment is applied.
  • Understanding how to apply the reverse charge if you are within the Flat Rate
    Scheme.

Although HMRC has stated that it will operate a light touch period for errors made in the first six months from implementation for the reverse charge, preparation is key to ensure a smooth transition into the new rules from 1 October 2020.

CIS rules remain the same, and organisations within the sector should use this opportunity to revisit processes in this area to minimise exposure to underpayments and penalties.

We are grateful to Mazars for providing this detailed summary of the new rules. It was written by Patrick Crookes who helps lead the Construction Industry Scheme team at Mazars nationally and Jimmy Davies a former HMRC investigator with three years’ experience tackling labour market fraud in VAT and CIS and now Assistant Manager in the Indirect Tax Team at Mazars.

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