Businesses need to ensure they are accurately recovering input tax related to share disposals. This is further to the Court of Appeal’s findings in the Hotel La Tour case. The court concluded that the VAT incurred on the professional costs was irrecoverable as it had a direct and immediate link to the VAT exempt share sale.
Companies must assess whether their partial exemption method provides a ‘fair and reasonable’ level of input tax recovery. This is particularly crucial for businesses with PESMs agreed with HMRC, as they are responsible for monitoring the fairness and reasonableness of their PESM. We are aware that private equity firms with PESMs that were agreed a number of years ago are being reviewed to establish whether the recovery rates and calculations remain appropriate.
Firms should examine if there is any non-business income derived from profit shares and/or dividends. Recovery of VAT on costs related to non-business income should be restricted. This calculation is similar to the standard method of partial exemption; business income as a percentage of total income.
It is essential to verify whether supplies of management services to portfolio companies can be sufficiently evidenced. Established case law has shown us that simply having a management services agreement in place is not enough to be eligible for VAT recovery. The entity providing management services should demonstrate sufficient substance to effectively deliver these services.
The correct application of the reverse charge mechanism is a common VAT compliance failing and area of focus for HMRC with Private Equity businesses. The reverse charge applies to most services that have been acquired from overseas vendors. When carrying out a VAT inspection, HMRC often use the proper application of the reverse charge as an indicator of the overall accuracy and health of a business's VAT records.
Given the increased focus on compliance, private equity, venture capital firms, and their portfolio companies should take proactive steps to review and, if necessary, adjust their VAT practices in line with HMRC’s guidance. This will help mitigate potential risks and ensure adherence to current regulations.
For further information on how HMRC’s guidance and new focus on the VAT position of private equity businesses may impact you, please contact Robert Marchant, or your usual Crowe contact.
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