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Column 1045community of purpose in their use and, if they are in the same ownership, it seems reasonable that they should be subject to a single option. Buildings linked by a covered walkway in separate legal ownership would not be covered by a single option anyway. The hon. Member for Wrexham (Dr Marek) suggested that in some parts of the country covered walkways may not be necessary. If he will tell me what parts of the country they are, I shall spend my holidays there.
We try to maintain unitary operation of the option where there are a number of facilities within a common development because allocation of input tax on common facilities to different shops in a shopping development is difficult.
If all the shops are owned by a single owner who also owns the common facilities, it will be much better for him to make a single option and then to be able to reclaim the VAT on all inputs relating to common facilities as well as to the individual shops. If there is deviation from that principle, more complexity will be introduced, along with a greater opportunity for avoidance and even fraud, and I do not think that Opposition Members would wish to encourage that. As far as we can see, there is no real problem except in relation to exempt tenants--building societies and banks, for example. An owner might wish to make a different option in respect of premises occupied by building societies and banks from that in respect of shops. Again, I am rather surprised that the Opposition should wish to facilitate tax avoidance by means of those parts of the exempt sector, thus giving rise to the complexities that I have mentioned.
The hon. Member for Wrexham saw a contrast with agricultural land ; I find a parallel. I do not know what would happen if two separate estates were joined by covered walkways--as far as I know there is no example of that in the countryside--but where pieces of land are contiguous they are treated as a single unit. Where two estates are clearly separate, they are treated as separate units. That strikes me as similar to the principle that we are using for shopping centres.
Dr. Marek : If a shopping precinct included a right of way--down the middle, let us say--that was dedicated to the local authority and thus not in the ownership, beneficial or otherwise, of the developer, would the precinct be treated as two precincts?
Mr. Lilley : I fear not. As I recall, our definition of agricultural land does not define a farm divided by a road as two separate farms, and it would be equally perverse to apply such a definition to a shopping centre. Although at first sight there may appear to be a problem that the amendment would resolve, I think that on closer inspection it may prove to be a non- problem, which therefore requires no solution.
The hon. Gentleman, along with others, raised the points contained in amendment No. 3 in Committee. Concern was expressed about the conditions of the option to tax commercial and industrial buildings : hon. Members wished to know whether it provided an incentive for total demolition, as opposed to the retention of a feature of architectural merit such as a facade.
If a building is listed or is in a conservation area, planning constraints are likely to prevent such action. It is right that planning constraints rather than a tweaking of
Column 1046the tax laws should constitute the primary way for us to make planning decisions. Even if no such constraints existed, however, I do not believe that the incentive suggested by the hon. Gentleman and the amendment would exist. A considerable amount of tax will be at stake in a redevelopment, whether or not there is total demolition. The presumption, therefore, must be that the redeveloper will want to continue to opt tax in the majority of cases.
In addition, the special charge on developers will, if anything, encourage the retention and refurbishment of existing buildings, because the special self-supply charge--assuming that Government amendment No. 32 is accepted-- will not apply to reconstructions, enlargements or extensions of, or the addition of annexes to, existing buildings. Customs and Excise will in any case continue its current practice of regarding a building as new and thus subject to a fresh option, although part of a previous building--such as a single facade--is retained and incorporated within it. Developers, of course, may not always be eager for a building to be regarded as new if as a result the self-supply charge on developers takes effect, or the sale of the building becomes compulsorily taxable. The case for amendment is therefore not compelling.
The hon. Gentleman asked specifically whether, if a staircase or similar internal feature were retained, it could be compatible with demolition. I am reliably informed that it would not be accepted that the building had been demolished if a staircase were retained. Obviously, the best way in which to ensure that staircases of great value are not destroyed is generally to protect them through the planning rules rather than the tax system.
It is doubtful whether Government amendment No. 16 provides a concession ; exempt concerns unable to reclaim their input tax may not regard such action as tax avoidance. The amendment provides that "land shall be taken not to be separated from other land if it is separated from it only by a road, railway, river or something similar".
What if a shopping centre includes a public green, perhaps with a fountain? That hardly constitutes a road, railway or river ; a road is, in a sense, one-dimensional, while a green could be described as two-dimensional. The Economic Secretary mentioned farms divided by roads, which he said would be deemed as single units, but what if one part is a mile or two away from the other?
The Minister says that there will be no problems, because land that is separated will be clearly delineated, and no arguments will arise with Customs and Excise. I accept that, although I am still a little worried about the possible problems with shopping centres and arcades. I am prepared to take the hon. Gentleman's word for it if he says that there will be no problems.
I have mixed views on what the Minister said about facades and staircases. At one stage he said that Customs and Excise was prepared to regard a building as being demolished if a facade, for instance, was retained. That led me to believe that the same could apply to two facades, or
Column 1047to a facade and a staircase. A minute later, however, the hon. Gentleman said that staircases would not be included.
I am apprehensive. I hope that Customs and Excise will read the report of our debate, and will treat any applications with the utmost flexibility. It is all very well to say that we should use the planning laws to safeguard staircases and facades. I should be the first to agree if the planning laws had teeth, were obeyed and were not overturned on appeal by Conservative Secretaries of State, but unfortunately that is not the case. I am not saying that the planning procedures do not work well, but they do not work well enough. Having said that, I hope that the Economic Secretary's reply will be read by interested parties in the United Kingdom, and that Customs and Excise, having also read it, will treat any further negotiations with some flexibility.
Amendment agreed to.
Amendments made : No. 11, in page 166, line 45, leave out has been made under this paragraph in relation to any building or'
under this paragraph has effect in relation to any'.
No. 12, in page 167, line 7, at end insert--
(2A) Sub-paragraph (1) above shall not apply in relation to a grant if--
(a) the grant is made to a registered housing association and the association has given to the grantor a certificate stating that the land is to be used (after any necessary demolition work) for the construction of a building or buildings intended for use as a dwelling or number of dwellings or solely for a relevant residential purpose ; or
(b) the grant is made to an individual and the land is to be used for the construction, otherwise than in the course or furtherance of a business carried on by him, of a building intended for use by him as a dwelling.'.
No. 13, in page 167, line 16, leave out
or building to which the election relates'
in relation to which the election has effect'.
No 14, in page 167, line 18, leave out or building'.
No. 15, in page 167, line 44, leave out from above' to second of' in page 168, line 4 and insert
shall have effect in relation to any land specified, or of a description specified, in the election.
(2A) Where such an election is made in relation to, or to part of, a building (or planned building), it shall have effect in relation to the whole of the building and all the land within its curtilage ; and for the purposes.'.
No. 16, in page 168, line 7, at end insert--
(2B) --Where such an election is made in relation to agricultural land (including a building on agricultural land), it shall have effect in relation to any other agricultural land if that other land is not separated from it by--
(a) land which is not agricultural land ; or
(b) agricultural land in separate ownership.
(2C) For the purposes of sub-paragraph (2B) above--
(a) land shall be taken not to be separated from other land if it is separated from it only by a road, railway, river or something similar ; and
(b) land is in separate ownership from land in relation to which an election is made if the person by whom the election is made has no interest in, right over or licence to occupy it and, where that person is a body corporate, no relevant associate has any such interest, right or licence.'.
No. 17, in page 168, line 10, leave out
notification of the election shall be'
Column 1048and insert
shall not have effect unless written notification of it is'. No. 18, in page 168, line 17, after above', insert and this paragraph'.
No. 19, in page 168, line 18, leave out that paragraph' and insert paragraph 2 above'.
No. 20, in page 168, line 30, at end insert--
(6) In paragraph 2 above "registered housing association" means a registered housing association within the meaning of the Housing Association Act 1985 or Part VII of the Housing (Northern Ireland) Order 1981.'.-- [Mr. Lilley.]
Amendment proposed : No. 21, in page 169, line 33, leave out from period' to on' in line 34 and insert
beginning with the day when the construction of a building or work within sub-paragraph (2) below is first planned and ending ten years after the completion of the building or work'.-- [Mr. Norman Lamont.]
except where he intends to make a taxable supply under 5(3)(b) below ;'.
Government amendments Nos. 22 to 32 and 43 to 48.
Mr. Anthony Coombs (Wyre Forest) : Having struggled with the concept of a one-dimensional river, and given the byzantine complexity of many of the clauses, it is appropiate to congratulate the Government on devising a narrow and fairly safe path for most self-developers whose sole lets are to exempt tenants. We are between the devil of the European Commission and its interpretation of article 27 of the 16th directive and the deep blue sea of the need to minimise the effects of VAT on non-domestic construction, in particular the imposition of VAT on building land associated with it.
In retrospect, I am glad that the Commission had reservations about the first scheme that was put before the Committee. It would have required declarations from owners when they were beginning their development as to whether they intended to sell the buildings or tax rents to exempt users. It would have constrained their commercial judgment. It would have meant that they had to fund VAT on land during construction. That is not the case now.
The second scheme, to impose VAT at valuation on land and buildings self- supplied within 10 years of construction, would have hit a number of institutions--in particular, educational institutions that are not exempt from VAT via their charitable status because they take fees. They would have been hit very hard--in particular, the universities that bought land many years ago, possibly many centuries ago, or that were given land or bought it cheaply. VAT would have been charged on the present-day valuation, which would have led to a significant increase in project costs.
The Committee of Vice-Chancellors and Principals tells me that the graduate business school at Strathclyde would have faced increased costs amounting to £150,000, which would have led to it not being viable, and that costs on a sports pavilion would have increased by £105,000. The university of Cardiff was concerned that costs of existing capital programmes would increase by £660,000. What is possibly even more important, London university said that the future development on land that was released by the merger of King's college, Chelsea college and Queen Elizabeth college would have been put at risk. That would have been detrimental to the restructuring and to the
Column 1049greater efficiency and responsiveness of the university sector, which is part of the Government's higher education strategy. The new historic cost basis valuation will help, and ought to be warmly welcomed. Nevertheless, the new regulations are not a bed of roses, particularly in the education sector. That is why I tabled an amendment that provided for the specific zero rating of education buildings. However, I am told that, under the VAT directive, that is not possible.
The maintained sector of education, which I believe includes city technology colleges and grant-maintained schools, will be zero-rated or will be reimbursed for the VAT that is paid on buildings under clause 20. However, when independent schools undertake projects of more than £100,000, they will pay VAT on construction for the first time. If they buy land for construction, they will pay VAT on that, too. VAT will also be payable on land that universities have recently acquired for restructuring purposes. It will be payable at market cost.
I hope that the Universities Funding Council will distinguish between the different kinds of restructuring to which I have referred and that it will be funded appropriately by the Government. I hope that the Government will continue to press the European Commission on the question of independent schools so as to ensure that non-profit-making independent schools with charitable status are allowed VAT relief on capital building, since that relief is now available to the public sector of education.
Mr. Curry : I congratulate the Government on having teased out a solution with the Commission on yet another issue. The European Court ruling is subject to various interpretations, so it is very difficult to obtain absolutely precise guidance on it. I am pleased that the Government were willing to enter into negotiations. The Commission's willingness to respond pragmatically has also been helpful and perhaps could be described as the acceptable face of Brussels bureaucracy.
I am also pleased that the Government have been willing to err on the side of adventure regarding village halls and the question that is being debated now. They have decided to take a chance, knowing that they are faced with a Commissioner who is likely to adopt a sensible approach.
I have two questions to put to the Minister on Government amendment No. 31. The first relates to a building contract that has been entered into before 21 June 1988, before the date of the court ruling and before the statement was made in the House. Secondly, if the owner of a building has paid the contractor for work, what will happen if he is paid before 1 April but the work does not start until after 1 August? I should be grateful if those two points could be clarified.
Mr. Beith : The hon. Member for Wyre Forest (Mr. Coombs) has obviously studied this matter carefully and knows a great deal about it, but we are still receiving representations from the Committee of Vice- Chancellors and Principals and others expressing considerable anxiety about the matter, despite the Government's efforts to find a fresh solution. I hope that the Minister will clarify the law concerning future gifts and acquisition of land. Would it be, rather like the National Trust, that universities
Column 1050would have to ask for a dowry before they accepted land because of the valuation that would be placed on it if they developed the land? The universities are being asked to engage in their own fund raising and to finance their own development as much as possible from non-Government sources. Therefore, they are understandably anxious about aspects of the tax regime which may make that more difficult, even after the changes.
Sir William Clark : On Government amendment No. 31, will the Minister confirm that the word "value" means cost price and not market value? Furthermore, where grants are mentioned, does that mean the immediate grant by means of which an interest in the land is acquired and not any previous grants? In other words, will he confirm that the various costs of acquisition will not be added together?
Mr. John Heddle (Mid-Staffordshire) : I have to declare an interest as the consultant partner in a firm of surveyors that may have clients, institutional or otherwise, who may be affected directly or indirectly by the amendments. I am pleased that the amendments have been tabled after the tabling of new clauses that caused some concern to the financial sector when the Bill was considered in Committee. I am also pleased that about 20 minutes or so ago we were told that further amendments may be made by means of order, in the light of experience.
In that context, I wish to raise a technical but very important matter. I accept, as do my hon. Friends the Members for Wyre Forest (Mr. Coombs) and for Skipton and Ripon (Mr. Curry), that it is right and proper that VAT should be levied on the historic cost and construction cost of land rather than on the valuation--the residual value of the ultimate development. That is fine in regard to a freehold property, but the position of a leasehold interest is not at all clear. Although the grant of a lease is a supply, a further supply is treated as taking place each time rent is due or paid. As the rent is further consideration for the grant, the fiction appears to be that a grant is made with each rent payment. That appears to be the meaning behind the drafting. Otherwise, the final words referring to consideration in the form of rent would be meaningless. 8.30 pm
If a developer-contractor has a long leasehold interest on a site, its value would include not only the purchase price or the premium paid to acquire it, but the rent payable in the past or in future, apparently without any discount for time. If that is correct, the value of the developer-contractor's interest may equal or even exceed that of the freehold--for example, if he holds a lease at a full rent.
I do not believe that my hon. Friend the Economic Secretary intended that when he he said that the self-supply would be based on the land cost. I ask him to consider that it is perhaps reminiscent of development land tax, where the value of a leasehold included the value of the right to receive the rent, although it was only the present-day value. Presumably, in future any developer-contractor who wishes to minimise the impact of the self- supply charge will make sure that he leases the site at a rent which is unascertainable at the time of the self-supply charge.
In practice, the provision may catch only existing land interests and the unwary. I ask my hon. Friend to consider
Column 1051that, arguably, the provision is not in accordance with the directive, which requires supplies of building land to be taxable, but leasing and lettings to be exempt. By taxing the rents, the measure appears to go beyond the spirit and the letter of the directive. I ask my hon. Friend to consider this and to consult officials in Customs and Excise to find out whether that was the intention of the amendments ; if not, perhaps he will be prepared to come back at a later stage with an amendment by order.
Mr. Christopher Hawkins (High Peak) : I ask my hon. Friend the Economic Secretary to clarify a couple of points, as I was not on the Committee. Am I right in thinking that the main effect of amendment No. 31 will be that land already owned by universities or other institutions will have VAT levied on the historic cost and not on the market value when it is developed? If so, the provisions will be greatly welcomed by universities.
I add to the projects mentioned by my hon. Friend the Member for Wyre Forest (Mr. Coombs) another which would have been in jeopardy as a result of the original proposals. At St. Bartholomew's hospital medical college, a new building is now at the planning stage. It will house a new institute of preventive medicine and has been funded entirely by the private sector. That project would have had to be aborted if there were to be an unanticipated VAT bill, which would have totalled £1.5 million, on the self-supply of land. These concessions are greatly welcome and are extremely important, if I have understood them correctly.
Today I talked to the Committee of Vice-Chancellors and Principals ; it still has one concern, which I hope my hon. Friend will clarify. We understand the position of land already owned by universities, but how will gifts of land be treated for tax purposes? It would be a great shame if universities had to refuse gifts simply because they could not afford to pay tax on them.
Dr. Marek : We now come to what could be termed the Barclays bank clauses, which will no doubt save Barclays bank about £40 million. I do not say that in any spirit of envy. If the changes were not made, there would have been a general unfairness in other matters. The Government have gone some way towards getting rid of that unfairness, not least of which involves the problem which has beset the Committee of Vice-Chancellors and Principals, the problem referred to by the hon. Members for Wyre Forest (Mr. Coombs), for High Peak (Mr. Hawkins) and for Berwick-upon-Tweed (Mr. Beith). I too have received a sheet of paper from the Committee of Vice- Chancellors and Principals, and I hope that the Economic Secretary will address that problem. It has been almost completely alleviated, but there are still concerns about future gifts and acquisitions. I am sure that the Committee of Vice-Chancellors and Principals will read very carefully what the Economic Secretary says, and any reassurance that he can provide will be very welcome.
For the record, I refer to the debate in Standing Committee, when I asked :
"Will a developer who has developed and intends to sell within three years as a new building, but meanwhile leases, perhaps to exempt tenants, still be unable to recover his inputs, although he will be required to standard rate the building when he sells it?"--[ Official Report, Standing Committee G ; 18 May 1989, c. 139.] The Economic Secretary said that he would write to me, and he did, saying :
Column 1052"On the question of self-supplies of new commercial buildings by developers you asked about the position of input tax recovery by developers who intended to sell within three years--a standard-rated supply--but meanwhile let on an exempt rental. In the straightforward case, the letting on an exempt rental would trigger the self-supply charge. All input tax attributable to the self-supply, eg on construction costs and professional fees, would be recoverable as it was incurred during the course of the development. When the standard-rated sale of the building took place at a later stage a proportion of the tax on the self-supply itself would be recoverable--under the proposed capital goods provisions which apply to buildings costing over £250,000 and which are due to come into force from next April. For example, if the building had been let at an exempt rent for two years since it was built and then sold, in principle eight-tenths of the VAT on the self-supply would be recoverable.
I hope that this is clear and has set your mind at rest on these two points."
It has certainly helped a great deal, as there is nothing in the Bill about the possibility of recovering input tax.
Amendment No. 4 was tabled to cover that point. I shall not press it, but for the purposes of the debate is it fair for a building to be let on an exempt rent for a couple of years, with only 80 per cent. of the input recoverable? If the rental was for only a short time--perhaps not two years but only six months or a year before the building was sold--should that short period be completely exempt from the provisions set out in the Economic Secretary's letter to me? I ask the Economic Secretary for a little more elucidation. Does the Economic Secretary accept the point we made about input supplies if a new building has to be constructed if a fire completely burns it down and a new building has to be constructed and tax would be payable on the building and the land? Although the building had burnt down, the land would still be there. We felt that it was unfair for tax to be paid on the construction and the land ; perhaps it would have been fairer if tax had to be paid only on the building. Does Government amendment No. 32 do anything about that? Some helpful explanatory remarks by the Economic Secretary would be greatly appreciated.
Are the amendments in conformity with the sixth VAT directive? Can the Economic Secretary assure the House that they will not result in further infraction proceedings in the European Court? I should have thought that some element of inflation would have to be added to the historic costs, and then the self-supply would be charged on the historic costs plus a little more. There is a danger that the Commission may say that this is not good enough, and other countries may start proceedings. I do not know-- [Interruption.] I will not tempt them. Time is getting on. I should like the assurance of the Economic Secretary that my fears have no foundation. [Interruption.] The hon. Gentleman thinks that that is not a problem. In that case, perhaps I should not say more. If he does not spend too much time on my last point, I hope that he will give us an explanation of the others.
Mr. Lilley : We are considering a number of amendments and perhaps it would be helpful if I dealt first with amendment No. 4, to which the hon. Member for Wrexham (Dr. Marek) has referred. The present scheme encourages developers building for letting to opt to tax rents from the beginning of the letting. If they do not, they must account for tax--on the value of the land and construction
services--straightaway. The amendment would bring back the requirement for certificates of intent, which were a feature of the building land scheme originally
Column 1053in the Bill. Although a necessary feature of that scheme, it made for added complexity, and its absence is a welcome simplification to the Bill.
If the developer did not carry out his declared intention of making the taxable sale, he would simply have to account for tax at the end of the three-year period, and then only on the historic value of the land and construction services. There would be no penalty for spurious declaration. Effectively, the developer could delay accounting for tax on the building even though he had no real intention of making a taxable supply of it. It cannot be right to encourage spurious declarations in that way. I hope that the Opposition, having seen that that is probably the unintended consequence of amendment No. 4, will find it unnecessary and unattractive.
Any developer who has to pay the special self-supply charge will be able to recover his inputs on the development--the VAT that he incurs on construction services and materials and any VAT that he may have been charged, under the option, when he acquires the land. There would be complexities over input tax recovery attributable to up to three years of exempt letting before taxable sale of the building. It would be wrong to allow input tax recovery on the construction services and on the purchase of the land if that purchase were taxed under the option when there were, initially at least, to be exempt lettings of the building. As the Bill now stands, there are no such complexities.
The proper mechanism for dealing with the change from exempt lettings to taxable sale lies in the proposed capital goods scheme, which is due to come into force from next April. Draft regulations for this have been published. This scheme will enable a developer who initially pays the special charge to recover a proportion of it if, as a fact, he makes a taxable sale of it, or opts to tax the letting of it, within 10 years.
I must admit that Government amendment No. 23, to delete reconstructions and enlargements of existing buildings from the scope of the self-supply charge, owes more to expediency than to conviction. The Government's decision to alter the basis of the self-supply from open market value to cost, although a useful simplification for most new buildings, introduces complexities in determining the appropriate cost basis for reconstructions and enlargements in respect of the land element of the cost. There are many different circumstances in which works of this type are affected, and it is not clear what is the most appropriate and equitable cost basis.
Certainly, a self-supply charge will be necessary to prevent easy avoidance by leaving minimal elements of an existing building and calling the subsequent development a reconstruction or by abutting a new structure on to an existing one with unnecessary internal access between them, so that it can be claimed that the new structure is an enlargement of the existing one. I have therefore authorised Customs to consult interested bodies to see whether it is possible to establish a consensus on the type of reconstructions or enlargements which should be liable to the self-supply charge and the most equitable basis for assessing the cost. We shall obviously come back to the House when those discussions are complete.
The central amendments in the group are Government amendments 29 and 31, on which most hon. Members who have spoken have concentrated. I gave the Standing
Column 1054Committee a lengthy explanation of how and why the need for the self-supply charge arose, and I will not weary the House by repeating what I have said. Broadly speaking, the self-supply charge is needed because sales of finished buildings bear tax on their sale value, which obviously includes the value of the land. Building land itself is not taxed. Exempt businesses could therefore avoid VAT on land by developing untaxed land themselves rather than buying completed buildings which bear tax on the selling price, including the inherent land value. All new buildings going into consumption should be taxed ; otherwise, there will be avoidance and distortion.
The Commission refused to endorse our original solution to the problem by taxing the self-supply of building land as such. Taxing the self-supply of the finished building was, from our point of view, the second best solution, but it was the only one acceptable to the Commission. I thought it right to introduce amended proposals, compatible with the Commission's objections, as soon as possible in Committee to ensure full discussion and to leave scope for further revision on Report. I regret, as I said at the time, that that gave the Opposition a minimal chance to prepare before the debate in Committee, but I think that they recognise that it has been useful to air the subject before reaching this stage of the Bill.
The amended provisions would have put everyone acquiring new buildings on the same footing, whether they bought the buildings, leased them or built them on their own land. However, the only way to do this was to tax the open market value of the self-supplied buildings. I have received representations that that would place an unreasonable tax burden on institutions which may have to redevelop land they have held for generations or land they may be given at some time in the future. This was not the Government's intention. In addition, the burden of taxation would inevitably depend on somewhat subjective valuations.
We have therefore devised a solution intended to meet the concerns of the institutions affected, including universities, colleges, schools and charities as well as banks and other members of the exempt financial sector. While meeting the Commission's objections to our original proposals on building land, the buildings concerned will now be valued at the historic cost of the land involved, plus the cost of construction.
A number of hon. Members have raised specific points, to which I shall endeavour to respond. My hon. Friend the Member for Croydon, South (Sir W. Clark) has apologised to me because he had to leave the Chamber at 8.45 pm. To respond to his point, I should say that "grant" means latest grant of freehold, not the cumulative total as he feared.
The hon. Member for Berwick-upon-Tweed (Mr. Beith) referred to future gifts. Gifts should be valued at historic cost. Therefore, there should be no need for tax arising on the full value of the land that is subsequently built upon. If someone takes the trouble to sell something to another person for a very small sum, that will be the cost basis for VAT purposes, if that person then builds something for self-supply upon it. Let us suppose that a generous benefactor gives a university a piece of land for £1. The university would be liable to VAT of 15p on that £1, which would not be crippling.