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In brief:

Regulations were introduced in April of this year which removed the uncertainty and complexity on which payments made by commercial landlords to tenants are covered by the Construction Industry Scheme (CIS). As a result,  the majority of such payments will now fall outside the scope of the CIS and the requirement for deductions as advance payments towards a sub-contractor’s tax and National insurance to HMRC.

The pre-April 2024 rules created a cumbersome legal and administrative obligation and the removal of these compliance burdens must be welcomed.

Legislation

The Income Tax (Construction Industry Scheme) (Amendment) Regulations 2024 (SI 2024/308)  introduced in April 2024 added a new Regulation 20A to the main CIS regulations which specify that payments made by a landlord to a tenant for construction operations in connection with a lease or agreement for lease are not contract payments and are, therefore, outside the scope of the CIS.

To fall within the scope of this exclusion, payments must meet the following conditions:

• The payment is made by or on behalf of a landlord;
• The payment is received by a tenant or prospective tenant (tenants include sub-tenants);
• The payment is for construction operations agreed in connection with a lease or agreement for lease;
• The tenant that occupies or will occupy the property will carry out the construction works themselves or contract with a third party to undertake the work; and
• The payment must be for construction operations relating to works intended primarily for the benefit and use of the tenant that occupies or will occupy the property under the lease.

The definition of ‘landlord’ includes a person with the legal or beneficial ownership of the property, who granted the lease or who will grant the lease.

What does this mean?

Under the pre-April 2024 rules, and prior to entering into any agreement relevant to the construction operations, both the landlord and tenant were required to take legal and taxation advice in order to jointly agree and document that any payments from the landlord to the tenant regarding such construction works either fell within the exclusion for ‘reverse premiums’ in Regulation 20 of the main CIS regulations so that they fell outside the scope of the CIS – or they did not and deductions would need to be made. 

Although contributions made by a landlord towards the tenant’s own fit out works were easier to assess, it was far more difficult where a contribution was being made towards the tenant undertaking Category A fit out works. This led to some landlords being more ‘careful’ in requiring the operation of the CIS on such contributions. Tenants were being asked to take on the added cost of CIS deductions –  as well as the added administrative and cash flow burdens of having to reclaim the amounts deducted. 

The new exclusion under Regulation 20A should lead to most payments by landlords to tenants (or prospective tenants) for construction operations being defined as outside of the scope of the CIS. However,, the implications of Regulation 20A do need to be fully understood.  Most notably,is the requirement that the landlord’s payments must be for construction works intended primarily for the benefit and use of the tenant. This means that any payment which relates to works outside the property occupied by the tenant is likely to fall outside the new exclusion and will therefore remain within the scope of the CIS.

As a reminder…

The new regulations do not affect the application of the CIS to payments by tenants to landlords for construction operations. Take an example where where the landlord has agreed to undertake the tenant’s own fit out works., While these payments will continue to usually fall outside the scope of the CIS, if the tenant will be sub-letting part or the whole of the property or they are registered with HMRC as a so-called ‘contractor’, the CIS deductions would apply in accordance with  Regulation 24 of the main CIS regulations for payments in respect of property used for the purposes of the business of the tenant or another company in the same group.

If you need any advice on the Construction Industry Scheme or any other aspects of construction law, please contact our team of experts Anne Wright and Tom Pemberton.