The Construction Industry Scheme and property investment companies

The Construction Industry Scheme (CIS) is a tax deduction scheme under which tax is deducted from payments made to subcontractors for construction work unless the subcontractor is registered with HMRC for gross payment status. HMRC recently published guidance on the application of the CIS to property investment companies after it came to their attention that many property investment companies undertaking substantial redevelopments were unaware that they needed to register as a contractor within the CIS.

A property investment company will need to comply with the CIS if it is acting as a contractor. Failing to register for, and comply with, the scheme may result in an unexpected tax liability which it might be unable to recover from the subcontractor.

Property developers

The work of a property developer is the creation of new buildings or the renovation or conversion of existing buildings. Consequently, they will fall within the definition of a mainstream contractor for the purposes of the CIS. As a result, they should register as a contractor and apply the CIS.

Speculative builders should also register a contractor for the purposes of the CIS as their work involves the creation or renovation of buildings.

Property investment companies

Property investment companies acquire and dispose of buildings for a capital gain or acquire buildings which they rent out to generate rental income. Unlike a property developer, they may not undertake construction work, and consequently, a property investment company will not necessarily fall with the ambit of the CIS.

However, this will not always be the case and the CIS should not simply be dismissed as ‘not relevant’. Where the property investment company’s property estate is large enough, the expenditure that it incurs on construction operations may be sufficient for it to fall within the scope of the CIS as a deemed contractor. A deemed contractor is a non-construction business that spends more than £3 million in a rolling 12-month period on construction operations. A deemed contractor must register and operate the CIS.

However, if the spend on construction operation is less than £3 million in a 12-month period, the property investment company will not be a deemed contractor and will remain outside the CIS scheme, as long as its main business remains property investment rather than property development.

Example

A property investment company acquires a former warehouse which it renovates and converts into flats before letting them out. The cost of the construction operations exceeds £3m in a 12-month period. The property investment company must register as a deemed contractor under the CIS and operate the scheme.

Change in the nature of the business

Where a property investment company enters into substantial or multiple construction contracts, they may need to assess whether their business has changed and they have become a property developer. If this is the case, they may need to register as a mainstream contractor under the CIS, even if they revert to being a property investment company once the construction work has concluded. Consideration should be given to what is the main nature of the business at that particular time.

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