Currently, as I write this blog in March 2012 many commercial property solicitors may well be unaware of the changes which are going to take effect in April 2012. The purpose of writing this particular blog is therefore to try and enlighten them as to these changes and the pitfalls, which may well include being sued, if they do not accept that they are to play a central role in advising their clients in respect of capital allowances claims on commercial property.
What’s happening post April 2012 if there has been no previous claim?
If a company or individual is selling a commercial property purchased before April 2012 then not a lot will change. The buyer’s solicitor still needs to ensure they receive properly completed section 19 of the CPSE1 form to establish the capital allowances claims history of the property being sold. If it appears there have been no previous capital allowances claims on the property then a Section 198 Election Agreement for plant and machinery fixtures is not possible and the right to claim capital allowances on the property will transfer to the buyer just as it does now. In summary the buyer is normally in the stronger position as the underlying law favours them.
However a pro-active solicitor may advise the seller of his right to make a capital allowances claim within, broadly, up to a couple of years of the sale allowing them to enter into a Section 198 Election Agreement with the buyer where the capital allowances are agreed to be valued at £1. In reality we see this happen very infrequently at the moment because most conveyancing solicitors do not see it as their role to advise their clients on the benefits of making a capital allowances claim whether representing the seller or the buyer.
What’s happening post April 2012 if there has been a claim?
Where a capital allowances claim has been previously made then a Section 198 Election Agreement may be entered into between the parties agreeing how the capital allowances are distributed between seller and buyer. The seller’s solicitor will normally be trying to value the capital allowances at £1 whilst the buyer’s solicitor should be trying to get them valued at the original valuation when the capital allowances were first pooled (i.e. claimed) by the seller’s accountant.
If agreement cannot be reached between the parties then the buyer has up to a maximum of two years from the date of completion to refer the matter to the tax chamber of the First-tier Tribunal for determination. As the underlying law indicates the full benefit of the capital allowances should generally pass to the buyer on completion then sellers would be advised to come to an agreement before this happens or risk facing the time and trouble of dealing with a tribunal and losing all rights to the capital allowances previously claimed. If a Section 198 Election Agreement is not entered into or a decision not sought from the First-tier Tribunal in time then any future rights to claim capital allowances on the original plant and machinery purchased as part of the sale will be lost not only to the current buyer but any future buyer too. This is where there is increased scope for the original solicitors involved in the process to be sued by disgruntled clients who have not only lost the right to claim capital allowances themselves but find the property potentially devalued because any new purchaser is deprived of making a capital allowances claim at all!
What’s happening post April 2014 if there has been a claim?
Post April 2014 is where there is going to be a major sea change. Where there has been a previous claim then a Section 198 Election Agreement still may be agreed between the parties. If they cannot agree then the buyer once again can refer the matter to The First-tier Tribunal. If agreement cannot be established then again any future right to claim capital allowances will be lost to the buyer and future purchasers.
What’s happening post April 2014 if there has not been a claim?
Where it is established that the seller could have claimed capital allowances but did not do so then it is imperative on the seller to pool the capital allowances before sale (ie, formally notify the qualifying expenditure to HMRC in a tax return). This means the seller will need to have the required surveys completed by a specialist, pool the capital allowances into their tax accounts and then enter into a Section 198 Agreement to distribute the capital allowances as agreed. This really needs be agreed as part of the negotiations on sale of the property.
However, what if the above is missed as part of the property sale and purchase? The new owner will not have the right to take it to the First-tier Tribunal (because the seller must first have claimed) and if they want to get the benefit of any capital allowances they will have to persuade the seller, after the event, to allow a capital allowance claim to be made. The seller will then have to agree for the capital allowances to be pooled into their tax accounts and then enter into a retrospective Section 198 Election Agreement for the capital allowances to be transferred to the new owner. The problem is, will the original seller be motivated to do this having completed on the sale? I would suggest there will have to be some financial motivation provided by the new owner to persuade them to do this and even then they might not get the original seller’s agreement. Again if agreement is not reached future rights to claim capital allowances will be lost to all future buyers.
In this last scenario you can see both a) the potential for those who do not have access to the correct professional advice losing the right to claim capital allowances altogether and b) disgruntled buyers who find out they have lost the right to claim capital allowances being prepared to sue their solicitors for not providing the correct advice at the point of sale.