UK: Taxation Of Investment In UK Commercial Real Estate

The tax regime applicable to non-UK investors in UK commercial real estate continues to be relatively generous. The tax on acquisition is low and there is generally none on disposal. Moreover, tax on income would generally be charged at the basic rate of 20% and this liability is capable of being significantly reduced albeit subject to new limits on gearing set to be introduced next year.

Typical structure

The most tax-efficient structure is one that recognises that taxable elements need to be held separately from non-taxable elements. Therefore, where any 'trading' activity – for example, development as opposed to pure investment – is envisaged, it would usually be appropriate to set up a structure with one entity (typically, a non-UK company) to hold the property and another (typically, a UK company) to carry out the trading activity/development project.

There is flexibility to superimpose whatever ownership structure is desired above the 'special purpose vehicle' that owns the property, whether that be a joint venture structure or a specific holding structure suited to the circumstances of the investor(s).

This structure will mitigate any exposure to UK inheritance tax.

Capital gains

In principle, capital gains on commercial property made by a non-UK investor are not subject to tax. Therefore a non-UK entity, typically a company, should be used to hold the property. In order to benefit from this exemption, two key conditions need to be satisfied:

  • The investor must not be engaged in 'trading' activity in relation to the property in question. Material redevelopment of the property or an intention at the time of purchase to sell the property within the first few years after acquisition would generally constitute trading. The UK is introducing new rules with the intent that the profits of any development activity carried on in the UK are subject to tax in the UK.
  • 'Management and control' of the non-UK entity must take place outside the UK. Therefore, while UK agents may take day-to-day decisions in the UK, any more strategic decisions must be taken outside the UK.

Income

Income derived from the property by a non-UK resident company will be subject to income tax at the basic rate of 20%. This tax is subject to a 'withholding' regime which means that the tenant or other paying entity must deduct the tax due and account for it directly to the tax authority, HM Revenue & Customs ('HMRC'). In most cases, the holding company or other owning entity will register under HMRC's 'non-resident landlord scheme' which will allow it to receive income gross, deduct expenses, calculate taxable profits, and submit a UK tax return in the usual way.

Gearing

Deductible expenses for tax purposes can include interest charges on borrowing and so gearing will generally result in tax-efficiency as well as amplification of investment performance. Many investors introduce borrowing in order to achieve this result.

It is, however, important that any loan arrangement is demonstrably 'at arm's length', and so if the borrowing is from a 'connected' party, it must be on robustly commercial terms and loan amounts which do not meet that commercial threshold will not qualify as deductible.

Currently (subject to the commerciality test) all borrowing costs are deductible to reduce taxable profit, but changes targeted for April 2017 will limit the amount of deductible interest to 30% of the owner's EBITDA (broadly equivalent to income in the context of an SPV owning a single property let on a 'full repairing and insuring' (or in US terms, 'triple net') lease. This restriction is likely to apply equally to UK and non-UK owners and will bring the UK into line with a number of other 'competitor' markets.

Separating out operating elements

Where it is proposed to carry out a 'trading' activity of some description in relation to the property, including development, it has generally been appropriate to hive-off that activity into a separate entity. Thus, the typical structure in these circumstances is that of the property-holding company being combined with an operating company: usually a non-UK 'propco' to shelter capital gains and a UK 'opco' to carry out the trading activity.

Any development or other services to be carried out is undertaken by the UK opco. Any charges rendered by the opco to the propco should be allowable against the propco's taxable income. Moreover, any VAT charged to propco will be recoverable where propco has 'opted to tax' (see below).

However, this is set to change. In future, under new rules the non-UK propco may be deemed to have a 'permanent establishment' in the UK by virtue of its ownership of the development site/property. Consequently, the profits of the propco, whether capital or income in nature, will become subject to UK corporation tax. The timing of this change is uncertain and it is prudent to assume that any non-UK propco which owns a development site/property in the UK may well now find itself subject to UK corporation tax on its profits arising from April 2016.

Capital allowances

It is not unusual for the seller's 'capital allowances' to be transferred, in whole or part, to the buyer. These are 'writing down' allowances against taxable profits in respect of historic capital investment in plant and machinery. The allowances are at the rate of 18% a year, with an 8% rate applying to 'integral features', and generally have effect on a 'reducing balance' basis. Each year the allowance is applied to the balance of expenditure after deduction of previous years' allowances, for example the 18% allowance is applied to 100% of the qualifying expenditure in the first year but to only 82% of the expenditure in the following year and so on. This means that around 75% of the expenditure is 'written down' over the first seven years.

On the sale of a property, the seller may well wish to retain any unused capital allowances. However, where the buyer would be able to benefit from them more than the seller, it may make more commercial sense for the seller to pass them to the buyer, generally for additional consideration.

Stamp duty land tax ('SDLT')

SDLT on the acquisition of commercial and mixed use property is charged at the following rates:

Property transfer value SDLT rate
Up to £150,000 Zero
The next £100,000 (the portion from £150,0001 to £250,000) 2%
The remaining amount (the portion above £250,000) 5%

It is payable by the buyer. The purchase price will include any VAT, but fortunately this 'tax on tax' is rarely levied for the reasons given below.

SDLT will be payable within 30 days after 'substantial performance' of the transaction, which is usually completion.

If a non-UK propco (as opposed to the real estate it owns) is sold, no SDLT or stamp duty will be payable. If a UK propco is sold, stamp duty at 0.5% will be payable. However, such transactions are relatively rare in relation to commercial real estate

Value added tax ('VAT')

VAT at 20% may be charged on the purchase price of commercial or mixed-use properties. This will be the case with new buildings and those where the seller has 'opted to tax'. In cases where the sale is subject to VAT, there will be little practical alternative other than to 'opt to tax'. That will often have the effect of making the sale itself VAT-free (and consequently mitigating the SDLT payable).

Where there is no immediate need to opt to tax, you should consider the best strategy for the property as a whole, taking into account future expenditure plans and the likely tenant-mix profile as some tenants will not be able to recover the VAT paid on rent.

The commentary in this note is intended only for broad introductory purposes and is not intended to be relied on in relation to any specific transaction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.