2(1)Subject to sub-paragraphs [F1(2), (3) and (3A)] and paragraph 3 below, where an election under this paragraph has effect in relation to any land, if and to the extent that any grant made in relation to it at a time when the election has effect by the person who made the election, or where that person is a body corporate by that person or a relevant associate, would (apart from this sub-paragraph) fall within Group 1 of Schedule 9, the grant shall not fall within that Group.U.K.
(2)Sub-paragraph (1) above shall not apply in relation to a grant if the grant is made in relation to—
(a)a building or part of a building intended for use as a dwelling or number of dwellings or solely for a relevant residential purpose; or
(b)a building or part of a building intended for use solely for a relevant charitable purpose, other than as an office.
[F2(c)a pitch for a residential caravan;
F2( d )facilities for the mooring of a residential houseboat.]
[F3(2A)Subject to the following provisions of this paragraph, where—
(a)an election has been made for the purposes of this paragraph in relation to any land, and
(b)a supply is made that would fall, but for sub-paragraph (2)(a) above, to be treated as excluded by virtue of that election from Group 1 of Schedule 9,
then, notwithstanding sub-paragraph (2)(a) above, that supply shall be treated as so excluded if the conditions in sub-paragraph (2B) below are satisfied.
(2B)The conditions mentioned in sub-paragraph (2A) above are—
(a)that an agreement in writing made, at or before the time of the grant, between—
(i)the person making the grant, and
(ii)the person to whom it is made,
declares that the election is to apply in relation to the grant; and
(b)that the person to whom the supply is made intends, at the time when it is made, to use the land for the purpose only of making a supply which is zero-rated by virtue of paragraph (b) of item 1 of Group 5 of Schedule 8.]
(3)Sub-paragraph (1) above shall not apply in relation to a grant if—
(a)the grant is made to a [F4relevant 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.
[F5(3AA)Where an election has been made under this paragraph in relation to any land, a supply shall not be taken by virtue of that election to be a taxable supply if—
(a) the grant giving rise to the supply was made by a person (“ the grantor ”) who was a developer of the land; and
(b)at the time of the grant [F6or at the time it was treated as made by virtue of [F7sub-paragraphs (3AAA) or (3B)] below], it was the intention or expectation of—
(i)the grantor, or
(ii)a person responsible for financing the grantor’s development of the land for exempt use,
that the land would become exempt land (whether immediately or eventually and whether or not by virtue of the grant) or, as the case may be, would continue, for a period at least, to be such land.]
[F8(3AAA)For the purposes of sub-paragraph (3AA) above a grant (the original grant) in relation to land made on or after 19th March 1997 and before 10th March 1999 shall be treated as being made on 10th March 1999 if at the time of the original grant—
(a)the grantor or a person responsible for financing the grantor’s development of the land for exempt use, intended or expected that the land or a building or part of a building on, or to be constructed on, that land would become an asset falling in relation to—
(i)the grantor, or
(ii)any person to whom that land, building or part of a building was to be transferred either in the course of a supply or in the course of a transfer of a business or part of a business as a going concern,
to be treated as a capital item for the purposes of any regulations made under section 26(3) and (4) providing for adjustments relating to the deduction of input tax to be made as respects that item, and
(b)the land or a building or part of a building on, or to be constructed on, that land had not become such an asset.]
(3A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F9(3B)Where a supply is made by a person other than the person who made the grant giving rise to it, then for the purposes of sub-paragraph (3AA) above–
(a)the person making the supply shall be treated as the person who made the grant that gave rise to that supply; and
(b)the grant shall be treated as made at the time when that person made his first supply arising from the grant.]
(4)Subject to the following provisions of this paragraph, no input tax on any supply or importation which, apart from this sub-paragraph, would be allowable by virtue of the operation of this paragraph shall be allowed if the supply or importation took place before the first day for which the election in question has effect.
(5)Subject to sub-paragraph (6) below, sub-paragraph (4) above shall not apply where the person by whom the election was made—
(a)has not, before the first day for which the election has effect, made in relation to the land in relation to which the election has effect any grant falling within Group 1 of Schedule 9; or
(b)has before that day made in relation to that land a grant or grants so falling but the grant, or all the grants—
(i)were made in the period beginning with 1st April 1989 and ending with 31st July 1989; and
(ii)would have been taxable supplies but for the amendments made by Schedule 3 to the M1Finance Act 1989.
(6)Sub-paragraph (5) above does not make allowable any input tax on supplies or importations taking place before 1st August 1989 unless—
(a)it is attributable by or under regulations to grants made by the person on or after 1st April 1989 which would have been taxable supplies but for the amendments made by Schedule 3 to the Finance Act 1989, and
(b)the election has effect from 1st August 1989.
(7)Sub-paragraph (4) above shall not apply in relation to input tax on grants or other supplies which are made in the period beginning with 1st April 1989 and ending with 31st July 1989 [F10if]—
(a)they would have been zero-rated by virtue of item 1 or 2 of Group 5 of Schedule 8 or exempt by virtue of item 1 of Group 1 of Schedule 9 but for the amendments made by Schedule 3 to the Finance Act 1989; and
(b)the election has effect from 1st August 1989.
(8)Sub-paragraph (4) above shall not apply in relation to any election having effect from any day on or after 1st January 1992, except in respect of the input tax on a supply or importation which took place before 1st August 1989.
(9)Where a person has made an exempt grant in relation to any land and has made an election in relation to that land which has effect from any day before 1st January 1992, he may apply to the Commissioners for sub-paragraph (4) above to be disapplied in respect of any input tax on a supply or importation which took place on or after 1st August 1989, but the Commissioners shall only permit the disapplication of that sub-paragraph if they are satisfied, having regard to all the circumstances of the case, and in particular to—
(a)the total value of—
(i)exempt grants made;
(ii)taxable grants made or expected to be made, in relation to the land; and
(b)the total amount of input tax in relation to the land which had been incurred before the day from which the election had effect,
that a fair and reasonable attribution of the input tax mentioned in paragraph (b) above will be secured.
Textual Amendments
F1Words in Sch. 10 para. 2(1) substituted (30.11.1994) by S.I. 1994/3013, arts. 1, 2(a)(i)
F2Sch. 10 para. 2(c)(d) inserted (1.3.1995) by S.I. 1995/279, arts. 1, 3(a)
F3Sch. 10 para. 2(2A)(2B) inserted (19.3.1997 with effect as mentioned in s. 36(2) of the amending Act) by 1997 c. 16, s. 36(1)(2)
F4Words in Sch. 10 para. 2(3)(a) substituted (1.3.1997) by S.I. 1997/51, arts. 1, 2(a)
F5Sch. 10 para. 2(3AA) inserted (19.3.1997 with effect as mentioned in s. 37(4)-(6) of the amending Act) by 1997 c. 16, s. 37(2)(4)(6)
F6Words in Sch. 10 para. 2(3AA)(b) inserted (10.3.1999) by S.I. 1999/593, art. 3
F7Words in Sch. 10 para. 2(3AA)(b) substituted (18.3.2004 with effect in accordance with art. 1 of the amending S.I.) by The Value Added Tax (Buildings and Land) Order 2004 (S.I. 2004/778), arts. 1, 3
F8Sch. 10 para. 2(3AAA) inserted (10.3.1999) by S.I. 1999/593, art. 4
F9Sch. 10 para. 2(3B) inserted (18.3.2004 with effect in accordance with art. 1 of the amending S.I.) by The Value Added Tax (Buildings and Land) Order 2004 (S.I. 2004/778), arts. 1, 4
F10Word in Sch. 10 para. 2(7) inserted (1.3.1995) by S.I. 1995/279, arts. 1, 3(b)
Marginal Citations