transfer of business vat

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Transfer a business as a going concern (VAT Notice 700/9)

When and how to account for VAT when you transfer a business as a going concern (TOGC).

1. Overview

This notice explains whether the transfer of a business should be treated as a ‘transfer of a business as a going concern’ ( TOGC ) for VAT purposes. It also explains the VAT treatment in each circumstance. It will help you ensure that the correct amount of VAT, when chargeable, is properly accounted for and paid.

You should read this notice if you are selling or otherwise transferring a business, or part of a business. It will also be useful if you’re acquiring a business. In certain circumstances special TOGC rules apply and the sale will not be treated as a supply for VAT purposes, so no VAT should be charged. To qualify as a TOGC , the assets sold must be both of the following:

capable of forming a separate business in their own right

used by the purchaser to carry on the same kind of business as that operated by the seller

You can find further information about the application of the TOGC rules in VAT Transfer of a going concern .

1.1 Business and going concern

In this notice, the word ‘business’ means any continuing activity which is mainly concerned with making supplies to other persons for a consideration. The activity must have a degree of frequency and scale and be continued over a period of time. Isolated transactions are not normally business for VAT purposes.

‘Going concern’ has the meaning that, at the point in time to which the description applies, the business is both of the following:

live or operating

has all parts and features necessary to keep it in operation, as distinct from its being only an inert aggregation of assets, but see paragraph 2.3.1

1.2 Examples in this notice

This notice provides examples in order to illustrate a point or an area of potential confusion rather than an exhaustive list of examples. Many of the examples involve property, premises or property rental business, because of the complexities in this area.

It’s important that each transfer is considered individually for TOGC purposes on the basis of its facts and circumstances, so a ‘one size fits all’ approach is not appropriate.

1.3 Force of law

Section 10 contains an example of the VAT 68 form which carries force of law under the VAT Regulations 1995, Regulation 6(d).

1.4 TOGC for VAT purposes

Normally the sale of the assets of a VAT-registered business, or a business required to be VAT registered, will be subject to VAT at the appropriate rate. But if you sell assets as part of a business which is a going concern then, subject to certain conditions, no supply takes place for VAT purposes and no VAT is chargeable.

It’s important to be aware that the TOGC rules are mandatory and you should establish from the outset whether the sale is a TOGC . It does not matter if your sale of assets would otherwise be treated as exempt or zero-rated as there can still be a TOGC if the conditions are met.

For there to be a TOGC for VAT purposes, all of the following must apply:

the assets, such as stock-in-trade, machinery, goodwill, premises, and fixtures and fittings, must be sold as part of the TOGC

the buyer must intend to use the assets in carrying on the same kind of business as the seller - this does not need to be identical to that of the seller, but the buyer must be in possession of a business rather than simply a set of assets

where the seller is a taxable person, the buyer must be a taxable person already or become one as the result of the transfer

in respect of land or buildings which would be standard-rated if it were supplied, the buyer must notify HMRC that they have opted to tax the land by the relevant date, and must notify the seller that their option has not been disapplied by the same date

where only part of the business is sold it must be capable of operating separately

there must not be a series of immediately consecutive transfers of the business

1.5 When it is not a TOGC

There are sales which fail to meet the conditions in paragraph 1.4. These include, but are not limited to:

the buyer does not:

continue the business and absorbs the assets itself

intend to use the assets to continue the same kind of business as the seller

the buyer is not registered for VAT or required to register as a result of the transfer

there is no supply made, which could include situations such as changes in the constitution of a partnership

there has been no transfer of assets so there is nothing to which the TOGC provisions can apply

instances where a limited company is passed from one person to another via the transfer of shares, but the assets still belong to the limited company - there is no change in the ownership of the assets so no supplies to which the TOGC provisions could apply

where a VAT-registered farmer transfers his business as a going concern to a farmer who is certified under the Agricultural Flat Rate Scheme there can be no TOGC for VAT as the buyer is not registered or registerable for VAT

If you’re registered for VAT but you have not yet made taxable supplies, the transfer of your business might not be the transfer of a ‘going concern’. But, where enough preparatory work has been undertaken prior to making taxable supplies there will be a business capable of being transferred as a going concern.

Section 6 gives more details on transfers of property, some of which are transfers of businesses as a going concern.

1.6 TOGC rules

The TOGC provisions are intended to simplify accounting for VAT when a business changes hands. They have the following main purposes, to:

relieve the buyer of a business from the burden of funding any VAT on the purchase, helping businesses by improving their cash flow and avoiding the need to separately value assets which may be liable at different rates or are exempt and which have been sold as a whole

protect government revenue by removing a charge to tax and entitlement to input tax where the output tax may not be paid to HMRC, for example, where a business charges tax, which is claimed as input tax by the new business but never declared or paid by the old business

2. How to apply the TOGC rules

This section deals with the special rules which apply to a transfer of a business so that the transfer of some, or all of the assets, should be treated as a TOGC and not as a taxable supply.

2.1 Why it is important to get the tax treatment right

The TOGC rules are compulsory. You cannot choose to ‘opt out’. So, it’s very important that you establish from the outset whether the business is being sold as a TOGC . Incorrect treatment could result in corrective action by HMRC which may attract a penalty and interest.

If all the conditions in paragraphs 1.4 and 2.2 are met, the TOGC rules apply and VAT must not be charged or accounted for on the assets transferred (except, in certain circumstances) on the premises, for example, land or property used in the business. Details of the circumstances in which you must charge VAT on the premises are set out in paragraph 2.3 .

If VAT is charged when it should not have been the:

buyer will not be able to reclaim this amount as input tax, because there was no taxable supply

seller will have to cancel any tax invoice issued and provide the new owner with a refund of the VAT charged - normally this will be by issue of a credit note or document giving similar effect

2.2 Conditions to treat a transfer as a TOGC

If all conditions listed in this section and paragraph 1.4 are met, the transfer of the assets of the business is a TOGC and you, as the seller, must not charge VAT. Paragraph 2.4 explains whether you need to charge tax on the transfer of premises.

2.2.1 Business activities

The effect of the transfer must be to put the new owner in possession of a business which can be operated as such. The term ‘business’ means a business activity recognised as such in VAT law.

For example, some of the activities of charities or local authorities are not considered to be business (see paragraph 4.6 of the VAT guide (VAT Notice 700) . A sale of ‘capital assets’ is not in itself a TOGC . But, if the effect of the sale is to put the buyer in possession of a business, it is a TOGC even if the assets are transferred on different dates.

The business, or part business, must be a ‘going concern’ at the time of the transfer. It can still be a ‘going concern’ even though it is unprofitable, or is trading under the control of a liquidator or administrative receiver, or a trustee in bankruptcy, or an administrator appointed under the Insolvency Act 1986.

2.2.2 Use of assets - same kind of business

The assets you transfer must be intended for use by the new owner to carry on the same kind of business. It is the continuation of an economic activity that is important, not necessarily that it is identical to that of the seller, see paragraph 7.2 .

If the buyer intends in due course to carry on a different kind of business using the assets purchased, the sale may still be a TOGC if the buyer intends to continue the old business initially.

The test is whether the buyer intends to carry on the business they have bought. This test does not lend itself to a set time-span, because ‘continuation of a business’ can vary on a case by case basis. There must be an intention of using the assets rather than just disposing of them.

See section 7 for more information on what counts as the same kind of business.

2.2.3 Consecutive transfers of a business

There must not be a series of immediately consecutive transfers of the business. Where A sells its assets to B who immediately sells those assets on to C, because B has not carried on the business the TOGC provisions do not apply to any of the transactions. This means that the sales take their normal VAT liability (taxable or exempt).

Such immediate transfers often occur in property transactions where A contracts to sell property to B, and B ‘sub-sells’ the property to C with both contracts being completed by a single transfer from A to C.

2.2.4 VAT registration

Where the seller of the business or part of the business is registered for VAT, the buyer must be one of the following:

registered for VAT

at the date of the transfer be required to be registered for VAT because all of the conditions for compulsory registration are met

accepted for voluntary registration and the voluntary registration must be in place at the time that the transaction occurs, it is not enough to apply afterwards for backdated registration

This condition is not met if the buyer is not registered and is not required to be registered for VAT. This could be because either:

at the date the transfer takes place, the buyer does not expect the value of their taxable supplies in the next 12 months to be above the registration limit, for example, the buyer intends to reduce trading by introducing shorter working hours

the seller was not required to be registered but was registered voluntarily at the date of the transfer - the buyer is not required to register because the value of the seller’s taxable supplies in the 12-month period then ended is not above the registration limit

In such circumstances, unless the buyer has been accepted for voluntary registration, the conditions for the transfer to be treated as a TOGC are not met and the sale takes its normal liability.

Where only part of the business is being transferred, the buyer must look at the turnover of this part to determine whether they must be registered. Further details about registration can be found in Notice 700/1: should I be registered for VAT? .

You can find more details on registration limits .

You should allow time for registration applications to be processed, as failure to do so may result in the conditions for TOGC not being met.

2.2.5 TOGC where the seller is not registered for VAT

There can be a TOGC where the seller is not registered for VAT. For example, because the seller is trading below the registration limit. The sale of a non VAT-registered business which includes trading stock, the value of which might otherwise take the trader over the registration limit, will not do so because it can be treated as a TOGC and therefore not a supply.

2.2.6 Buyer not established in the UK

A TOGC can still occur if the buyer is a non-established taxable person. This is any person not normally resident in Great Britain or Northern Ireland, who does not have an establishment in Great Britain or Northern Ireland and, in the case of a company, is not incorporated in Great Britain or Northern Ireland. There are different rules for determining whether a non-established taxable person is liable to register for VAT. These are set out in Notice 700/1: should I be registered for VAT? .

2.2.7 No significant break in trading

There must be no significant break in the normal trading pattern before or immediately after the transfer. The break in trade needs to be considered in the context of the type of business concerned and might vary between different types of trade or activity. HMRC does not consider that where a ‘seasonal’ business has closed for the ‘off-season’ as normal at the time of sale, that there has necessarily been a break in trade.

In addition, a short period of closure that does not significantly disrupt the existing trading pattern, for example, for redecoration, will not prevent the business from being transferred as a TOGC .

2.2.8 Transfer of part of your business

If you transfer only part of your business, that part must be able to operate alone. It does not matter whether it will operate separately from any other businesses the buyer carries on. An ‘in-house’ function is not a business for TOGC condition purposes when it only operates internally. The assets of the part of the business you transfer must have been used to make supplies, they must not merely be used for the overheads of your business (see also paragraph 7.2 and section 4 on VAT groups).

2.2.9 Transfers involving land and property

If the transfer of the land or property would normally be a taxable supply, both the seller and the buyer may need to meet certain conditions for it to be included as part of the TOGC . This is explained in more detail at paragraph 2.3.

2.3 Whether VAT should be charged when land or buildings are transferred as part of a TOGC

A TOGC will often involve the transfer of land and buildings. There are extra rules to determine whether VAT should be charged on the transfer of land and buildings - even if the rest of the transfer does qualify for TOGC treatment.

If all the conditions in paragraph 2.2 are met, and the buyer has complied with the following requirements, the transfer of land and buildings can be part of a TOGC and therefore not subject to VAT. The seller:

will have opted to tax the land or buildings being transferred and the option is not disapplied in relation to the transfer

transfers the freehold of a new building (under 3 years old) and the supply, but for the TOGC , would be subject to the standard rate of VAT

But the buyer must also have:

opted to tax (see paragraph 2.3.1 )

notified the seller that their option to tax will not be disapplied under the anti-avoidance provision set out in VATA 1994, Schedule 10, paragraph 12 in respect of supplies they intend to make of the land or building

2.3.1 Responsibility for applying correct treatment - option to tax by the buyer

The seller is responsible for applying the correct VAT treatment and may be required to support their decision. If the transaction is to be treated as a TOGC the seller must be satisfied that the buyer’s option to tax is in place by the relevant date. They may therefore ask the buyer for evidence of this, such as a copy of the notification letter. The seller must have the buyer’s notification of the non-disapplication of the option to tax and may find it prudent to obtain this in writing.

If the seller transfers land or buildings on which there is no option to tax, and the supply would not be otherwise standard-rated, the buyer is not required to opt to tax and there’s no need to notify that the option has not been disapplied. In these circumstances, namely if the supply is zero-rated or exempt, the transfer of the land or buildings can be included in the TOGC .

2.3.2 Option to tax

The option to tax by the buyer, must be notified to HMRC in writing no later than the relevant date and must apply from that time. You should note that the relevant date is the time of the supply. For VAT purposes the time of supply is normally the date of the transfer, but will also include receipt of a deposit that may otherwise have created a tax point. A tax point is not created by the receipt of a deposit by a third party acting as an independent stakeholder (as opposed to an agent of the seller) until the money is released to the vendor.

Further information on tax points can be found in the VAT guide (VAT Notice 700) .

Where the written notification of the option to tax is sent to HMRC by mail, the notification must be properly addressed, pre-paid and posted on or before the relevant date.

Opting to tax land and buildings (VAT Notice 742A) fully explains the option to tax.

2.3.3 Disapplication of the buyer’s option to tax - the anti-avoidance measure

An option to tax can be disapplied as a result of an anti-avoidance measure. Where an option is disapplied this means it will cease to have effect in respect of certain supplies. The anti-avoidance measure only has effect where land and buildings are occupied for something other than fully taxable business purposes and where the land or building is a capital item for the purposes of Capital Goods Scheme (see Partial exemption (VAT Notice 706) and Capital Goods Scheme (VAT Notice 706/2) ).

The measure is fully explained in Opting to tax land and buildings (VAT Notice 742A) .

Unless the option to tax is otherwise disapplied, freehold transfers of new buildings and civil engineering works (under 3 years old), and land and buildings on which the seller has exercised an option to tax, can only be included within a TOGC where the buyer:

has an option to tax that has been made and notified by the relevant date

makes a declaration to the seller that their option will not be disapplied by the anti-avoidance provisions Opting to tax land and buildings (VAT Notice 742A)

Where the buyer fails to do either of these, the transfer of the property will fall outside of the TOGC provisions and the supply will be subject to VAT. But the transfer of other business assets may still qualify to be treated as a TOGC .

The following tables will help you decide whether land and buildings can be included in the transfer of assets as part of a TOGC .

Commercial land or building, ordinarily exempt

New building (less than 3 years old), ordinarily standard-rated

2.4 When a ‘property rental business’ is transferred

Section 6 gives examples of circumstances concerning the transfer of land or property where there may be a transfer of a business of ‘property rental’ as a ‘going concern’. In those cases where there has been such a transfer, the conditions of paragraphs 2.2 and 2.3 must still be met for there to be a TOGC and for the supply of assets to be ignored for VAT purposes.

An optional statement of practice is available where a property rental business is being transferred to a nominee acquiring title for a named beneficial owner (see section 8 ).

Where only the beneficial ownership of a property rental business is transferred, and the legal title is retained by the seller, there may be a TOGC . If the seller’s ownership is reduced to being no more than that of a bare trustee, it’s accepted that the property, together with its lettings may be transferred as a ‘going concern’.

Where there’s a transfer of a beneficial interest from A to B to C on the same day this is seen as a series of consecutive transfers, even where the legal title is transferred directly from A to C. The condition as per paragraph 2.2.3 is not met and TOGC does not apply to any of the transactions.

When a tenanted building is sold or a lease is assigned mid-way through a rent period, an adjustment is normally made to the consideration at the point of completion. These adjustments may be for rent collected, or for water and power paid for in advance prior to the sale or assignment. They are not consideration for any supply and are outside the scope of VAT. For VAT purposes the consideration for the sale of the building or the assignment of the lease is the full value of the supply before any adjustment is made (see Land and property (VAT Notice 742) ).

2.5 Deduction of VAT on expenses incurred on the transfer

Although there is no supply for VAT purposes where there is a TOGC , this does not prevent the deduction, subject to the usual rules, of input tax on related expenses (for example, solicitors’ fees and estate agents’ costs). There is a distinction between the extent to which the seller and the buyer can deduct such input tax.

2.5.1 Buyer

If the buyer acquires assets by way of a TOGC and the assets are to be used exclusively to make taxable supplies, the VAT incurred on the cost of acquiring those assets should be attributed to those taxable supplies and can be recovered in full.

If the assets of the acquired business are to be used exclusively to make exempt supplies, none of the input tax on the cost of acquiring those assets can be recovered.

But, if the assets are to be used in making both taxable and exempt supplies, any input tax incurred is residual input tax and must be apportioned in accordance with the buyer’s VAT partial exemption method.

See Partial exemption (VAT Notice 706) for further guidance.

2.5.2 Seller

The sale of the business as a TOGC is not a supply and the input tax incurred on the cost of selling the business cannot be attributed to it by the seller. These costs are, therefore, treated as a general business overhead of that part of the business being transferred. Where that part of the business makes:

only taxable supplies, the input tax is fully recoverable

only exempt supplies, the input tax is wholly non-recoverable

both taxable and exempt supplies, the input tax is residual and recoverable in accordance with the partial exemption method in place

In instances at paragraphs 2.5.1 or 2.5.2, where the existing partial exemption method fails to achieve a fair and reasonable result, then we would be prepared to approve the use of another method, as long as that method provides for a fair and reasonable recovery of input tax. See Partial exemption (VAT Notice 706) for further guidance.

3. Rules following a TOGC

This section explains the rules following a TOGC in relation to a number of different areas that may be affected by TOGC .

3.1 Capital Goods Scheme considerations

The scheme applies where the value of taxable supplies, other than zero-rated ones, received in connection with the acquisition or creation of any of the items listed is £250,000 or more. In the case of computers and computer equipment the scheme only applies where the value of the supply is £50,000 or more. These items are:

certain property expenditure of £250,000 or more

aircraft, ships, boats and other vessels with a VAT-exclusive value of £50,000 or more

a computer or an item of computer equipment

related self supplies if relevant

More information is available in paragraphs 8.3, 9.2, 9.3 and 10.3 of the Capital Goods Scheme (VAT Notice 706/2) guide.

3.2 De-registration and goods still owned by the original business

If you transfer your business as a TOGC and are not going to continue trading in another capacity you will need to cancel your VAT registration using form VAT7 .

But, if you’re cancelling your registration and have any goods which you’ve claimed input tax on and are not transferring with the business, you will normally have to account for VAT on these assets. Paragraphs 2.3 and 2.4 of VAT Notice 700/11: cancelling your registration tell you more about this.

You should be aware that if you fail to notify HMRC of any changes affecting your registration details within 30 days of them occurring you may become liable to a financial penalty.

If, when you cancel your registration, you have a capital item covered by the scheme and which is still within its adjustment period you will need to make a final adjustment. Capital Goods Scheme (VAT Notice 706/2) tells you more about this.

3.3 Transfer of the previous owner’s registration number

In certain circumstances the buyer can apply to keep the seller’s VAT registration number. As part of that application both the seller and the buyer must agree to the consequences of reallocation.

The transfer of a VAT registration number can be requested using HMRC online services or by completing form VAT68 .

The consequences of transferring a VAT registration number are legally binding on both parties and include the transfer of any VAT liability to the buyer. The buyer’s liable for any outstanding VAT from the seller’s registration including VAT on stocks and assets kept by the seller. But the seller is no longer entitled to any repayments of VAT or unclaimed input tax whether these amounts refer to periods before or after the transfer.

The consequences also include the transfer of entitlement to unclaimed VAT bad debt relief on debts incurred by the seller of the business. But, the buyer also takes the requirement to repay input tax claimed by the seller on supplies he received and which have subsequently become the subject of a bad debt relief claim made by the supplier or if the supplies remain unpaid after 6 months.

Further details about bad debt relief can be found in Relief from VAT on bad debts (VAT Notice 700/18) .

3.4 Business records

How business records are treated will depend on whether the buyer has taken on the seller’s VAT registration number.

The seller of a business (or part business) sold as a TOGC retains the business records, unless the VAT registration number is also transferred. But, the seller must make available to the buyer the information necessary for the buyer to comply with their duties under the VAT Act.

If the buyer is unable to obtain this information from the seller, then HMRC can disclose to the buyer the information HMRC holds that is necessary for the buyer to comply with duties under the VAT Act. HMRC will advise the seller of its intention to disclose information to the buyer thereby providing the opportunity to identify any confidentiality issues.

You can find more information in paragraph 2.8 of Record keeping (VAT Notice 700/21) .

3.5 Giving away goods or services owned by the previous business

The buyer may be liable for VAT on the deemed supply of assets taken into private use or disposed of as gifts, where the assets were transferred to them and the seller originally reclaimed input tax on the purchase of those assets - see section 9 of the VAT guide (Notice 700) .

Under the normal rules, when a business gives away goods or services on which input tax has been recovered, VAT is due on that disposal. Business gifts costing £50 or less or free samples are exceptions to this rule. Where goods and services are transferred as part of a TOGC , and a previous business has had entitlement to input tax on those supplies, output tax is still due on any subsequent free supply of those goods or services by the buyer.

3.6 Intrastat rules

You must continue to submit Intrastat declarations for goods you:

import from the EU into Great Britain (England, Scotland and Wales) until 31 December 2021

move between Northern Ireland and the EU

You’ll no longer need to submit a declaration for goods you export from Great Britain to the EU.

3.7 TOGC interaction with customs authorisations

It’s important to note that the treatment of a transfer of a business as a TOGC for VAT purposes may well give rise to registration issues for:

customs authorisations

excise and inland customs approvals

The transfer of the VAT registration number by form VAT68 does not mean that registration for other duties or taxes has similarly been transferred. Generally customs or excise registrations or approvals will need to be applied for again. If you are a seller or a buyer of a business and are subject to these regimes you are advised to contact your issuing authority within HMRC or contact our helpline for advice on the effect.

4 VAT groups and TOGCs

4.1 transfers of businesses between members of the same vat group.

The formation of a VAT group creates a single person for VAT purposes and as such any supply by a member of a VAT group is considered to be made by the representative member of the group. Generally, supplies between members of a group are disregarded for the purposes of VAT. But this does not mean that the members of a group are not businesses when they make supplies to each other.

If a business, or part of a business capable of separate operation, is transferred between group members then this can be treated as on-going activity provided that it is used to make supplies outside the group.

4.2 Transfers made to those outside the VAT group

The transfer of a business, or part of a business capable of separate operation, from within a VAT group to a business outside of that group is subject to normal TOGC rules.

4.3 Transfers made to a VAT group

The initial transfer of a business, or part of a business capable of separate operation, to a company in a VAT group is a TOGC if that company both:

intends to continue to use the transferred assets to operate the same kind of business

will provide supplies of that business to other group members, and those other group members use or intend to use them to make supplies outside the group

This is also the case if, after the initial transfer into the group, the business is transferred between group members, provided that ultimately the services that it provides are made to a group member that makes or intends to make services outside the group.

If the buyer uses the assets to make supplies directly outside the VAT group, this would also be a TOGC .

Whether a TOGC has occurred will depend upon the facts of the particular case, but it is important that the assets transferred into a VAT group are used to make supplies outside the group and not merely consumed within the VAT group.

5. Members of a partly exempt VAT group

This section provides information on the requirements for a new owner who’s a member of a partly exempt VAT group acquiring a business as a TOGC .

5.1 General rules for partly exempt VAT groups

If you’re a member of a partly exempt VAT group and you acquire business assets as part of a TOGC , you must treat these assets as being both supplied to the group and supplied by the group. This means a self-supply is triggered.

In practice, the representative member must account for output tax in relation to the supply by the group and recover the input tax incurred in relation to the supply to the group, in accordance with the partial exemption method in operation. But the input tax cannot be attributed to the self-supply itself.

5.1.1 Exclusions

The self-supply will not be triggered in relation to:

any assets which were assets of the previous owner more than 3 years before the date of the transfer

goodwill (for example, goodwill, use of a trademark or trading name, the sole right to trade in a particular area, and so on)

any assets which are zero-rated or exempt (for example zero-rated or exempt freehold or leasehold interests in land)

items which fall within the Capital Goods Scheme, for further details of items covered by the scheme see paragraph 3.1 and Capital goods scheme (Notice 706/2)

5.2 Value for VAT purposes of the supply made to and by the representative member

The value of the supply by, and to, the representative member is its open market value. If the previous owner is unconnected with your group, this will normally be the consideration you paid for the assets on which tax is due. If VAT is not due on some of the assets, the consideration must be apportioned fairly between the standard-rated assets and other assets. Paragraph 8.1 in the VAT guide (Notice 700) tells you how to do this.

HMRC can reduce the VAT chargeable in relation to the self-supply if you can produce satisfactory evidence to show that the previous owner did not recover all of the input tax incurred on the original purchase. This would include if they were partly exempt or the input tax was ‘blocked’, for example, on the purchase of a car.

In a case where the seller’s partial exemption recovery rate (during the partial exemption tax year in which the assets were purchased) is equal to or less than the buyer’s recovery rate (during the partial exemption tax year in which the assets were acquired) the VAT charge will be reduced to nil, although no tax will be refunded.

If you consider that you have evidence that the tax due should be reduced, you should consult our advice service.

6. Transfer a property business as a TOGC

This section provides guidance on when a property can be transferred as a TOGC . The term ‘freehold’ is used for convenience but they would also apply in instances of long leaseholds and in Scotland the interest of the owner. They reflect that the conditions set out in paragraph 2.3 have been met.

6.1 When a property business can be transferred as a TOGC

You will be making a transfer of a business capable of being treated as a TOGC if you own any of the following:

the freehold of a property, which you let to a tenant, and sell the freehold with the benefit of the existing lease, a business of property rental is transferred to the buyer - this is a business transferred as a TOGC , even if the property is only partly tenanted

the lease of a property (which is subject to a sub-lease) and you assign your lease with the benefit of the sub-lease

a building where there’s a contract to pay rent in the future, but where the tenants are enjoying an initial rent free period, even if the building is sold during the rent free period, you’re carrying on a business of property rental capable of being transferred

a property and have found a tenant, but not actually entered into a lease agreement when you transfer the freehold to a third party (with the benefit of a contractual agreement for a lease but before the lease has been signed), there is sufficient evidence of intended business activity for there to be a property rental business capable of being transferred

a number of let freehold properties, and you sell one of them, the sale of this single let or partly let property can be a TOGC of a property rental business

It will also be capable of being a TOGC if you:

grant a lease of the property, but retain an interest that has a value of no more than 1% of the value of the land or property immediately before the transfer (disregarding any mortgage or charge)

are a tenant of a building, you have sub-let part of that building, and you surrender your lease to the landlord with the benefit of the subleases, then you are transferring your property rental business because the landlord will become the landlord of the sub-tenants

are a property developer selling a site as a package (to a single buyer) which is a mixture of let and unlet, finished or unfinished properties, and the sale of the site would otherwise have been standard-rated

are a business, owning land which you begin to develop with the intention of constructing buildings for sale (and these supplies would be taxable supplies), and you perform work on the land such as widening roads and installing utilities - if a part of this partially developed land is then sold to a property developer who intends to complete the development and sell the newly constructed buildings, this transaction can be part of a TOGC because although you never made taxable supplies, there was the intention to do so

have a partially-let building which is capable of being a property rental business, providing that the letting constitutes economic activity, but such cases should be considered on their facts - HMRC would not see a TOGC if the letting element of the transaction was so small as to be negligible

purchase the freehold and leasehold of a property from separate sellers without the interests merging and the lease has not been extinguished, providing you continue to exploit the asset by receiving rent from the tenant

6.2 When a property business cannot be transferred as a TOGC

You will not be making a transfer of a business capable of being treated as a TOGC if you:

are a property developer who has built a building, and you allow someone to occupy temporarily (without any right to occupy after any proposed sale) or you are ‘actively marketing’ it in search of a tenant, there is no property rental business being carried on

grant a lease retaining an interest that has a value that is greater than 1% of the value of the property immediately before the transfer (disregarding any mortgage or charge) - where more than one property is transferred at one time, this test should be applied on a property by property basis rather than for the entire portfolio

sell a property freehold to the existing tenant who leases the whole premises from you, this cannot be a TOGC because you are not transferring your property rental business to the tenant

6.3 Transfer of a number of sites or buildings

HMRC will need to consider the transfer of a number of sites or buildings, where some of the sites or buildings are let, or partially let and some are unlet, on a case by case basis.

We will look at:

the nature of the sites or building and their use

whether the assets can be identified as a single business or an identifiable part of a business

if all the conditions as set out at paragraphs 1.4 and 2.2 are met

If a number of properties are sold together as a single portfolio, this can be a single TOGC , even if not all the properties are let. For example, the sale of a chain of shops or pubs could be a TOGC whereas the sale of a grouping of diverse properties might not.

7. The definition of ‘same kind of business’

7.1 trading activities after a business is transferred.

You must check whether the person buying your assets intends to operate the business in the same way as you. For example, you may choose to insert a warranty about the buyer’s intentions in the sale agreement.

This is because the TOGC rules apply where both the:

seller is selling the assets of all or part of a business which is being transferred as a going concern

buyer intends to use these to run the same kind of business

There must be continuing business activity, rather than the mere acquisition of assets with a view to liquidation or instantaneous disposal.

7.2 What will be the same kind of business

It would be seen as the same kind of business if you sold your business to someone who intends to restructure it so that the business activity continues, even though there may be changes to the manner in which the business is run. For example a:

restaurant specialising in Italian food is sold to a buyer who wants to change the restaurant to a café that sells hot snacks

buyer takes over the premises, stock and goodwill of a shop that sells hats, but expands the range to cover coats and gloves too

There is no minimum period for how long this business activity should continue after the transfer, but the activity must be real. There should be a discernible business or part of a business that can be operated separately before the transfer and this should be recognisable afterwards.

There must be:

business activity and not the instantaneous transfer of assets

more to a business than simply the disposal of that business

7.3 What will be a different type of business

It would not be the same kind of business after you sold it if the buyer fundamentally changed it or did not use it in the same way. This would include the buyer granting franchises to operate trading sites, as opposed to operating the actual trading activity of the franchises themselves.

There would also be no TOGC if the buyer was required to use only your product to support his existing business and without making any supplies of your product to any third parties, such as if you:

manufacture ink and sold your business to a printer

make drinks straws and sold your business to a fast food chain

You may have difficulty if you’re a business with more than one trading activity. This would include a brewery that is in business selling beers, wines and spirits to the public in their managed house outlets. But they would also be in business renting properties to tenants (where the tenants are selling to the public). If the brewery was leasing a pub to tenants, and then sold the business to someone who was to run the pub themselves, then it would not be a TOGC . This is because the brewery had a business of renting property and the new owner has a business of running a pub.

8. Property letting business - statement of practice

See paragraph 2.4 .

This statement of practice about nominee buyers acquiring legal title is optional and may only be applied by persons transferring an interest in land to a person who’s a nominee for a named beneficial owner. The option is not available if the nominee is acting for an undisclosed beneficial owner.

Where the legal title in land is to be held by a nominee for a named beneficial owner, HMRC will, for the purpose of establishing the transfer of a property letting business as a going concern, consider the named beneficial owner of the land and not the nominee acquiring legal title to be the buyer.

The new optional practice allows a person transferring an interest in land to a nominee for a named beneficial owner, with the agreement of that nominee and beneficial owner, to treat the named beneficial owner as the transferee for the purposes of establishing whether there has been a transfer of a going concern. Paragraph 8.2 contains an example you can use to record the agreement.

Persons transferring an interest in land to a person who’s a nominee for a named beneficial owner will be expected to check the VAT registration and where necessary the VAT elections made by the beneficial owner.

A nominee might exist to hold the legal title in property for a beneficial owner where the legal title is held:

by 4 or fewer persons on trust for a partnership (this does not happen in Scottish law)

on trust for an unincorporated association

on trust for a pension fund

8.1 Background

A TOGC cannot occur where the buyer is a nominee for a beneficial owner, as the beneficial owner will be the person carrying on the business, not the nominee.

The option does not need to apply to transactions where the nominee is the seller of the legal title. In these cases the beneficial owner will be treated as the seller.

These principles are based upon English land law but can also be applied to similar transactions in the rest of the UK as necessary.

8.2 Suggested format of a notice of agreement

The following notice of agreement is optional and other clear written evidence of agreement will be accepted by HMRC. The seller, buyer, beneficial owner and nominee should each retain a copy of any written evidence.

Notice of Agreement to adopt Statement of Practice

Property: (address)

Transferor/vendor: (X)

Nominee/buyer: (Y)

Future beneficial owner: (Z)

X, Y and Z confirm that they have agreed to adopt the optional practice set out in Customs & Excise Business Brief 10/96 in relation to the purchase of the property pursuant to an agreement dated ( ) between X and Y.

Following the transfer of the property Y will hold the legal title as nominee for Z, the beneficial owner.

Signed for and on behalf of X:

Signed for and on behalf of Y:

Signed for and on behalf of Z:

9. Further advice

HMRC does provide further advice, particularly where an unusual aspect has been identified in a potential TOGC . Normally the seller should make the request as it’s their responsibility to determine whether VAT is chargeable or not. It’s important that any request is made in writing, and:

contains all relevant facts and information

gives a clear indication of what aspects of the arrangement give rise to doubt or uncertainty

There are circumstances where we do not give VAT clearances, including on TOGC cases. These circumstances are listed in Find out about the Non-Statutory Clearance Service .

10. Transfer a VAT registration number

This section has force of law.

Form VAT68 must be completed if the seller and buyer of a business want to apply to transfer a VAT registration number.

Your rights and obligations

Read Your Charter to find out what you can expect from HMRC and what we expect from you.

Help us improve this notice

If you have any feedback about this notice email: [email protected] .

You’ll need to include the full title of this notice. Do not include any personal or financial information like your VAT number.

If you need general help with this notice or have another VAT question you should phone our VAT helpline or make a VAT enquiry online.

Putting things right

If you are unhappy with HMRC’s service, contact the person or office you’ve been dealing with and they’ll try to put things right.

If you’re still unhappy, find out how to complain to HMRC .

How HMRC uses your information

Find out how HMRC uses the information we hold about you.

This page has been updated because the Brexit transition period has ended.

New advice has been added for purchasers not established in the UK at paragraph 2.2.6. There are updated rules on transfers into a VAT group in paragraph 4.3, and in paragraph 2.4 there is new information for when property is transferred but the seller retains an interest in it.

First published.

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Business Restructuring—VAT Treatment of Transfer of a Going Concern

By Armelle Abadie, Hélène Brin, Berardo Lanci, Etienne Cox and Puck Wilmink

Article 19 of Council Directive 2006/112/EC of November 28, 2006 (the VAT Directive) allows EU member states to treat the transfer of a going concern (TOGC), or a part of a going concern, as not relevant for VAT purposes. All member states have taken up that option, at least to some extent.

While the scope of application of this provision seems relatively clear in the different member states, the VAT treatment of cross-border TOGC is not yet resolved.

European Position on Scope of Transfer of a Going Concern Regime

Option offered by the vat directive.

In principle, supplies of goods and services for consideration by a taxable person acting as such are subject to VAT (article 2 of the VAT Directive).

However, article 19 of the VAT Directive provides that EU member states may consider that, in the event of a transfer, whether for consideration or not or as a contribution to a company, of a totality of assets or part thereof, no supply of goods has taken place and that the person to whom the goods are transferred is to be treated as the successor to the transferor.

Member states may, in cases where the recipient is not wholly liable to tax, take the measures necessary to prevent distortion of competition. They may also adopt any measures needed to prevent tax evasion or avoidance through the use of article 19.

All member states have used the possibility offered by the VAT Directive to consider that, following a transfer, no supply of goods for the purposes of VAT has taken place. However, as explored below, some member states have had different interpretations of the scope of these provisions and how they affect cross-border transfers .

Interpretation of the Court of Justice of the EU

According to the Court of Justice of the EU (CJEU) in the Zita Modes SARL case (C-497/01, Nov. 27, 2003), article 5(8) of the Sixth Directive 77/388 (which became Article 19 of the VAT Directive) must be interpreted as meaning that the no-supply rule applies to any transfer of a business or an independent part of an undertaking, including tangible elements and, as the case may be, intangible elements which, together, constitute an undertaking or a part of an undertaking capable of carrying on an independent economic activity.

The transferee must however intend to operate the business or the part of the undertaking transferred and not simply to immediately liquidate the activity concerned and sell the stock, if any.

On the other hand, the CJEU adds that nothing in article 5(8) of the Sixth Directive requires that the transferee pursue prior to the transfer the same type of economic activity as the transferor.

Applying principles set out in the Zita case, the Court considers that there is a transfer of a totality of assets, or a part thereof, not subject to VAT, where the stock and fittings of a retail outlet are transferred concomitantly with the conclusion of a contract of lease, to the transferee, of the premises of that outlet for an indefinite period but terminable at short notice by either party, provided that the assets transferred are sufficient for the transferee to be able to carry on an independent economic activity on a lasting basis (see Finanzamt Lüdenscheid (Case C-444/10) Nov. 10, 2011).

The type of assets that have to be transferred to consider the transfer as a TOGC for VAT purposes depends on the nature of the activity performed.

Application in Italy, the Netherlands and France Regarding Scope of TOGC Regime

Article 19 of the VAT Directive has been implemented in Italy in article 2, paragraph 3(b), of the Italian VAT Code (the IVC).

Based on the abovementioned rule, the transfer of a going concern, or a part of a going concern, is not relevant for VAT purposes (but is liable to proportional registration tax).

However, many principles have been stated by the Italian Revenue Agency and the Italian tax courts on the application of such regime, also following the CJEU principles.

First, it has been clarified that article 2, paragraph 3(b) of the IVC applies in the case of a TOGC that is related to a reorganization of business that must be carried on. It is not relevant—and accordingly the ordinary VAT rules apply—where the TOGC is ended, for example, in order to liquidate the assets once they are received by the transferee.

Further, the rule in article 2, paragraph 3(b) applies to the transfer of a portion of a going concern, meaning that a certain amount of material and/or immaterial goods are deemed to be considered as a going concern in the event that they are together organized and intended to be implemented with other goods by the transferee in order to create a unique operative going concern.

In other words, a general and deep evaluation of the whole situation and of the use of the relevant assets must be performed in order to verify whether, in the circumstances of that specific case, the scope of the rule is really met.

In this regard, it is relevant that the transferred goods represent—together with the other goods of the transferee—an “organized and operative” going concern. The same principles also apply in the case of many transfers of single goods that were part of a going concern and are de facto ended to constitute the same going concern at the level of the transferee.

The circumstance represented in the above paragraph is particularly interesting for stakeholders because tax assessments of the Italian Revenue Agency on indirect taxation of TOGCs are mainly focused on the fact that the transferred goods are deemed to be a—total or partial—going concern (liable to proportional registration tax) or not (in which case VAT would be applicable).

The Netherlands

The Netherlands has implemented article 19 of the VAT Directive in article 37d of the Dutch Turnover Tax Act 1968 (TTA). Article 37d applies in the event of a transfer of a totality of assets or part thereof, resulting in no levy of VAT on the transfer under certain conditions (most importantly: continuation of the transferred business).

• The purchaser of the assets is deemed to carry on the VAT position of the seller in respect of the transferred business. Ongoing VAT revision periods, options for rent subject to VAT, and specific agreements with the tax authorities with respect to the transferred assets (if any) are consequently continued by the purchaser. In this respect, it is important to note that it is essential to carry out a thorough due diligence investigation into the VAT history of the transferred business. The purchaser generally cannot be held liable for VAT which remains unpaid by the seller and which relates to the period prior to the transfer date. However, the purchaser is liable for adjustment VAT in respect of the current fiscal year.
• Although the exploitation of tangible or intangible property for the purposes of obtaining income therefrom on a continuing basis is regarded as an economic activity under article 9 of the VAT Directive, the mere transfer of a leased-out building was not considered to qualify under the Dutch TOGC regime until 2008.

Contrary to its previous decisions in similar cases, in 2008 the Dutch Supreme Court ruled that the TOGC regime does apply to the transfer of leased-out real estate, provided that the seller held the immovable property for investment purposes and the purchaser continued the seller’s investment activities.

If, for instance, a real estate developer transfers a newly developed or redeveloped building to an investor, article 37d of the TTA generally does not apply. According to the Dutch Supreme Court the immovable property should, at the level of the developer, be regarded as “stock-in-trade” rather than an operated business asset, irrespective of whether—in view of the transaction with the investor—the developer has entered into a lease agreement in respect of the property prior to the transaction date. This position has been challenged several times since 2008, but in all cases the Supreme Court and/or lower courts have reconfirmed their approach.

Similarly, the Supreme Court ruled in early 2021 that a sale-and-leaseback transaction did not qualify as a TOGC, since after the transaction the seller effectively continued its previous business. The sale-and-leaseback merely resulted in the circumstance that the seller was no longer the owner but the lessee of its real estate.

Initially used for capital restructuring operations (e.g., mergers), this regime has been extended by the French tax authorities (FTA) to apply to real estate sales operations under certain conditions.

Article 19 of the VAT Directive was implemented in France through article 257 bis of the French Tax Code (FTC) in 2005 and then modified in 2010.

According to article 257 bis of the FTC, VAT is not due on deliveries of goods or services performed between two VAT taxable persons in the event of a transfer for consideration or not, or as a contribution to a company, of a totality of assets or part thereof. The beneficiary of the transfer is deemed to continue as the person of the transferor and, notably, has to perform input VAT regularization (provided for in article 207 of Appendix II of the FTC) that would be required if the transferor had continued its operations.

According to FTA guidelines, there is no obligation to formalize the successor’s commitment to regularize the right of deduction previously exercised by the transferor, since this commitment results from the law.

Article 257 bis of the FTC applies as of right when conditions laid down in in that article are met.

The FTA guidelines also provide that the scope of article 257 bis of the FTC includes the transfer of a coherent body of assets capable of allowing the pursuit of an economic activity. This provision applies to any transfer of business or an independent part of an undertaking, including tangible elements and intangible elements, which together constitute an undertaking or a part of an undertaking capable of carrying on an independent economic activity.

The French regime requires a condition not provided for in article 19 of the VAT Directive: The transfer should take place between two partially or totally VAT taxable persons in respect of the assets transferred.

Concerning the nature of assets transferred, the FTA have a broad interpretation of article 19 of the VAT Directive. According to the FTA (referring to a tax ruling), this provision applies to the sale of a fixed property, recorded as a fixed asset for both parties, used for a rental activity subject to VAT where the transferee continues to use the property for a rental activity subject to VAT, as of right or by option.

In this situation, the transfer of the property is (i) not subject to input VAT adjustments if the building is qualified as old (i.e. completed for more than five years), or (ii) exempt from VAT if the building is qualified as new (i.e. completed within less than five years).

This regime is regularly used in the context of real estate as it avoids a cash out for the operators.

Territoriality and Transfers of a Going Concern

In principle, the TOGC regime does not apply on cross-border transfers because the implementation of article 19 of the VAT Directive is up to the discretion of member states.

However, all member states have implemented article 19 to a certain extent, and as a result, we believe that the TOGC regime could be applicable on cross-border transfers.

Although, as mentioned above, member states may take measures to prevent tax evasion or avoidance through the use of article 19, which could lead to mismatches between the member states regarding the application of the TOGC regime, the CJEU has ruled in several cases that the VAT Directive limits the interpretative margin by its aim and purpose. It is not desirable that excessive differences between member states exist in the interpretation of concepts and the application of certain rules and/or legislation, especially where such differences could lead to distortion of competition.

It remains unclear whether the TOGC regime applies to foreign assets which are part of a business transfer between two local VAT entrepreneurs.

It could be argued that the foreign assets are part of the totality of assets that is transferred and hence fall within the scope of the TOGC. However, the question that subsequently arises is whether the foreign member state in which the assets are located also considers the assets to be part of a totality of assets. A member state’s legal definition of the local TOGC concept could lead to such “stand-alone” assets falling outside the scope of the TOGC regime, hence triggering VAT in the member state where the assets are located.

In the Netherlands and France, no guidelines have been published on the TOGC regime applicable to cross-border transfers.

In Italy, by contrast, the Italian Revenue Agency, in Resolution No. 536 of Aug. 6, 2021, clarified that article 19 of the VAT Directive is an option for each member state which can only be applied in the case of a TOGC, or a part of it, located in the member state. In the case under analysis, it was an actual TOGC between foreign companies and only one asset of the going concern was located in Italy. Based on this circumstance, as it was not possible to consider the Italian asset in itself as a going concern, or part of it, the Italian Revenue Agency stated that the transfer of such asset, regardless of what happened outside of Italy, could not be considered a TOGC for VAT purposes, and that, consequently, ordinary VAT in Italy applied.

Article 19 of the VAT Directive is frequently used by operators as it offers a significant cash flow advantage. However, depending on the jurisdiction, it is difficult to apply this VAT regime to cross-border transactions, which is unfortunate because this creates legal uncertainty.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Armelle Abadie is a partner and Hélène Brin is an associate with CMS France; Berardo Lanci is a partner with CMS Italy; Etienne Cox is counsel and Puck Wilmink is junior associate with CMS Netherlands.

The authors may be contacted at: [email protected] ; [email protected] ; etienne.cox@cms-dsb.com ; [email protected] ; [email protected]

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VAT recovery on 'Transfer of Business' relief transaction costs post-2019 Finance Bill

Indirect Tax Matters December 2019

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What is Transfer of Business Relief?

When the assets of a business, or part of a business capable of being continued by the person acquiring it is transferred from one person to another, there is deemed to be no supply for VAT purposes of the conditions for Transfer of Business relief are met.

This means that there is no VAT sale for the transfer. The relief is not optional so where the conditions are met, TOB will apply. Where the conditions are not met VAT may be chargeable on some, or all of the assets being transferred. Further details on Transfer of Business Relief are contained in a previous article included in Indirect Tax Matters, which can be found here .

VAT Recovery on TOB Transactions following the 2019 Finance Bill. 

The 2019 Finance Bill deletes Section 59(2A) of the VAT Consolidation Act, which provided that where a business is transferred from one person to another, under Transfer of Business provisions, the transferor would only be entitled to VAT recovery on costs directly relating to the transfer of the business, if the transfer of the assets of the business would be subject to VAT, if not for TOB relief. 

By way of example, if a tenanted residential property was sold to an accountable person and assuming the property had not been developed in the last 5 years, or been adapted for a materially altered use, then the sale of the property would be exempt but for transfer of business provisions. The transferor would not be entitled to VAT recovery on transactions costs incurred in relation to the sale on the basis that the sale of the property would be exempt but for TOB provisions. Using the same fact pattern above except for one variation, let's say that the property has been developed in the last 5 years and adapted for a materially altered use, then the sale of the property would now be VATable but for TOB, and the transferor would be entitled to VAT recovery on transactions costs incurred in relation to the sale. 

Revenue have stated that the deleted provision has proven to be unnecessary as the entitlement to deduct is already provided for elsewhere in the VAT Act in Section 59(2). Section 59(2) sets out the general rules for overhead recovery, but does not specifically provide guidance on the recovery of costs incurred in respect of Transfer of Business Relief.

We must look to the ruling of the European Court of Justice in the Abbey National case (C- 408/98), which held that the VAT recovery of the transferor is not dependent on the VAT status of the related property or the use to which the transferee will put the related property to after the transfer of the business. Rather, the Court ruled that VAT recovery should be determined by reference to the transferor’s right of deduction in respect of its general overheads of the business which it just transferred. Therefore, VAT recovery on costs incurred directly relating to the transfer of the business will be based on the general overhead position of the business transferred.

To apply this analysis to our above example, if we have the sale of a tenanted property be VAT recovery, post the implementation of the 2019 Finance Bill, will not be based on whether the sale of the property would be subject to VAT but for the application of TOB. It will instead be based on the overall VAT recovery position of the transferors business, which may be a mix of VATable and exempt activities. VAT on costs incurred on the sale of a property subject to TOB Relief will now be restricted in line with the businesses general overhead recovery position. 

The above is a high-level overview of VAT recovery on transaction costs when the assets of the business we transferred VAT recovery on such costs will now depend on the VAT status of the business, and not the status of he transferred asset. 

To discuss the above in more detail please contact Christopher Connolly or Donal Kennedy.

Donal Kennedy

[email protected]

+353 1 417 2366

Donal Kennedy is a solicitor and director in the Indirect Tax group. He has considerable experience and expertise in VAT consultancy and planning, at both domestic and international levels. After a nu... More

John Stewart

[email protected]

+353 1 417 2479

John is a Director in our Indirect Taxes group specialising in VAT and was formerly an auditor with the Revenue Commissioners. He advises a broad range of indigenous and international business on all ... More

Christopher Connolly

Senior manager - indirect tax.

[email protected]

+353 1 417 3824

Christopher is an Senior Manager in Deloitte’s Indirect Tax department he is a Chartered Accountant (ACA), Chartered Tax Adviser (CTA) and holds a Masters of Accounting from UCD.  He  has hands on exp... More

Vincent McCullagh

Indirect tax.

[email protected]

+353 1 417 2771

Vinny leads our Indirect Tax Practice and our C&I activity for tax. Vinny has 20 years’ experience in Indirect Tax gained in both Ireland and the UK. Vinny specialises in TMT, Life Sciences and Financ... More

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