Zero-rating major interest grants in buildings: ‘person constructing a building’: transfers of going concerns (TOGC)
‘Person constructing’ status does not move to the person acquiring a completed building that is transferred as a going concern.
This is not to be confused with the effect of obtaining a major interest in a partially constructed building and continuing its construction (VCONST03550).
In Peddars Way Housing Association Ltd (VTD 12663), Breckland District Council (BDC) constructed houses that formed part of their housing stock, and later sold them to Peddars Way in pursuance of a ‘local stock voluntary transfer’. The tenants retained their statutory ‘right to buy’.
Peddars Way argued that the effect of Article 5.8 of the EC 6th Directive (the ‘transfer of a going concern’ provisions) was to disregard the actual transfer from BDC. The result, they argued, was that ownership remains with the same person. Peddars Way, being treated as the same as Breckland District Council, must therefore be regarded as the ‘person constructing’ the houses in question. The Tribunal dismissed this argument, stating:
…for Peddars Way to succeed in their appeal they have to establish that Article 5.8 applies to qualify a successor business… to zero rating on grants of major interests in dwelling houses as if it had been the person constructing them. …As we read Article 5.8 it is wholly permissive… [it] does not create a directly effective entitlement that United Kingdom taxpayers can rely on. It does not, for example, entitle Peddars Way to say that… it is to be regarded as the person constructing the buildings in question.
The Tribunal found that Peddars Way could not zero-rate the disposal of the houses to the tenants because:
…there are no domestic UK provisions that apply to make Peddars Way the ‘person constructing’ the buildings…