VAT: Transfer of a Business as a Going Concern

Girish Nair

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    Even though it has been quite a while since UAE introduced VAT, new clarifications keep coming and businesses need to be aware of these. Here we will discuss in detail about the conditions that have to be met for a transfer to qualify as a transfer of a going concern.

    In accordance with Article 7(2) of the Federal Decree-Law No. (8) of 2017 on Value Added Tax (the “Decree-Law”), the transfer of whole or an independent part of a business from a person to a taxable person for the purposes of continuing the business that was transferred is not considered to be a supply for VAT purposes.

    As a consequence of not being a “supply” for VAT purposes, such transfer of a business, commonly known as a “transfer of business as a going concern” or a “TOGC”, is not subject to VAT.

    For VAT purposes, it is important to distinguish between a normal sale of assets and a sale of assets as part of TOGC. Normally, a sale of assets by a taxable person is treated as a taxable supply subject to VAT at the appropriate rate.

    In contrast, where assets are sold as part of a transfer of a business as a going concern, the transfer is not a supply at all and therefore no VAT is charged. This treatment applies to a transfer of the business irrespective of the VAT treatment which would apply to any of the underlying assets that are being transferred.

    For a transfer not to be treated as a supply for VAT purposes, the following conditions must be met:

    • There must be a transfer of whole or an independent part of a business – For a transfer to be subject to Article 7 of the Decree-Law, there must be a transfer of a business, and a mere transfer of assets will not qualify as a TOGC. The transfer must effectively give the recipient the possession of the whole of a business, or part of a business where that part is capable of separate operation. As part of the transfer, all of the goods and services that are necessary for the continued operation of that business or a part of a business must be supplied to the recipient.

      To qualify as a going concern, the transferred business must be operational before and at the time of transfer.

    • The transfer must be made to a taxable person – No requirement for the supplier to be registered for VAT for a TOGC to take place.

      However, the recipient should be registered or obligated to register for VAT.

    • The recipient intends to continue the business which was transferred – The final condition in Article 7(2) of the Decree-Law requires that the transfer of the whole or independent part of the business must be for the “purposes of continuing the business which was transferred”. It is irrelevant whether the new owner will operate the transferred business separately from, or as part of, any other businesses that he is already operating.

      Although there is no requirement for the minimum period for which the transferred business must be operational under the recipient’s ownership, the intention to continue the business must be genuine. The supplier should satisfy themselves that the recipient intends to continue the business as a going concern.

    • Where the supply has been incorrectly treated as a TOGC, VAT may be retrospectively due on the supply. The parties should consider the potential consequences of any such errors when entering into contractual arrangements.

      It is mandatory to be updated about all the rules and regulations pertaining to VAT in UAE, and the best option would be to take the assistance of a VAT consultancy. HLB HAMT is equipped with a team of experienced VAT consultants who can help you with the entire VAT compliance process.

     

     

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