Common areas of difficulty: retention of records
Prior to 1 September 2007, the business records of a business transferred as a going concern were required to be transferred to the purchaser of the business. However the seller could apply to HMRC for permission to keep the records.
Changes have been made to section 49 of the VAT Act 1994, and regulation 6 of the VAT Regulations 1995 in respect of contracts entered into on or after 1 September 2007. These changes were announced in Budget Notice 58 and in VAT notes 04/07, and were published in VAT Information sheet 12/07. These changes are reflected in the revised notice 700/9.
From 1 September 2007, the seller of a business as a TOGC retains the records. However,where the purchaser takes on the seller’s VAT number, the seller is required to transfer the records to the purchaser, unless the seller needs to retain the records, in which case he may apply to HMRC for permission to do so.
Where the seller retains the records, the seller must make available to the purchaser information necessary for the purchaser to comply with his duties under the VAT Act. If the seller fails to make this information available, HMRC may disclose to the purchaser information it holds on the transferred business that is needed by the buyer to comply with its duties under the VAT Act. HMRC will advise the seller of an intention to disclose information to the purchaser and this will provide the seller with the opportunity to make known any confidentiality issues.
Examples of the type of information that may need to be divulged includes: details of the seller’s taxable turnover in order to determine the purchaser’s liability to be registered for VAT; or the number of completed periods of the capital goods scheme in relation to a capital item.
VAT Information sheet 12/07 explains the changes in more detail.
If you receive a request from a purchaser to disclose information held by HMRC on the seller of a TOGC you must contact CT&VAT Supply of Goods to obtain authorisation prior to giving out any information. In addition to the seller’s details you should provide, via the usual PG1 submission arrangements, details of what information has been requested and why the purchaser has been unable to obtain it from the seller.
Where any seller, whilst remaining responsible for the records, entrusts the safekeeping of those records to a third party, whether that third party is, for example, a storage facility, an accountant, or the purchaser of the business, then the seller must still honour his obligations to furnish information and produce documents under Schedule 11 ofVAT Act 1994. It would appear sensible that each party to a transfer would seek assurance from the other as to how access will be made available for as long as it is needed.
Where a company is in administration following insolvency and the company exits administration by way of a creditor’s voluntary liquidation or dissolution, as is likely if its business has been transferred to someone else, then the retention of records will be governed by the Insolvency Regulations 1994. VAT Notice 700/56 refers.