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Amendments to UK data protection law in the event of a no deal Brexit

Following the publication of its technical notice in September 2018 on “Data protection if there’s no Brexit deal”, the government has now published an online summary covering what amendments would be required to UK data protection law in the event of a no deal Brexit.

The European Union (Withdrawal) Act 2018 (EUWA) will retain the GDPR in UK law, but the government will make appropriate changes to that and to the Data Protection Act 2018 using regulation-making powers under the EUWA to ensure the UK data protection framework continues to operate effectively when the UK is no longer in the EU.

In the event of a no deal Brexit, the summary confirms that:

  • The responsibilities of UK data controllers will not change and the same GDPR standards will continue to apply in the UK
  • The UK will transitionally recognise all EEA states, EU and EEA institutions and Gibraltar as providing an “adequate” level of protection for personal data, which means that personal data can continue to flow freely from the UK to these destinations after exit day. However, the UK cannot provide for the free flow of data into the UK from other jurisdictions and therefore alternative mechanisms for such transfers will be required to be put in place by UK organisations, e.g. Standard Contractual Clauses (SCCs)
  • Existing adequacy decisions made by the EU concerning countries outside the EU will be preserved by the UK on a transitional basis
  • Existing SCCs issued by the European Commission will also continue to be an effective basis for international transfers from the UK in the event of no deal (with the Information Commissioner’s Office (ICO) having the power to issue new SCCs after exit day)
  • Existing authorisations of Binding Corporate Rules (BCRs) made by the ICO will continue to be recognised in domestic law
  • The extraterritorial scope of the UK's data protection framework will continue to apply. However, the UK will require controllers based outside of the UK to appoint a representative in the UK where certain processing conditions are met.
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VAT on property service charges

A new Revenue and Customs Brief (6-2018) entitled VAT exemption for all domestic service charges has recently been published by HMRC. The brief explains changes to the Extra Statutory Concession (ESC) 3.18 VAT: exemption for all domestic service charges may be applied. The ESC was introduced in February 1994 to enable the same VAT treatment on mandatory service charges to a freehold occupant as to a leaseholder or tenant living on the same common estate.

In the Brief, HMRC identified a number of scenarios where ESC 3.18 has been applied incorrectly. This in part followed a decision by the Upper Tribunal that confirmed if a landlord is contractually obliged to provide services to the occupant of a property, and uses a property management company or similar, to provide these services, the property management company cannot use the concession. This means that the concession does not apply to management fees charged by a management company, accordingly, their fees will be taxable at the standard rate of VAT.

HMRC is reminding all property management companies, and companies supplying similar goods and services in similar situations, who have not correctly applied ESC 3.18, that since 1 November 2018, they must correctly account for VAT. VAT information sheet 07/18 provides further guidance on this subject. Property management companies must ensure that the right amount of VAT incurred on costs and overheads is recovered.

Planning note

Residents affected by these changes could see an increase in their service charges of between say 10% to 20%. The actual amounts involved will depend on the VAT status of individual managing companies. Management companies taking care of small developments should not be affected.

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Are you ready for VAT filing changes April 2019?

The introduction of Making Tax Digital (MTD) for VAT is fast approaching.

From April 2019, some 1 million businesses with a turnover above the VAT threshold (currently £85,000) will have to keep their records digitally (for VAT purposes only), and provide their VAT return information to HMRC through MTD compatible software. The deadlines for sending VAT returns and making payments are not changing.

Businesses with a taxable turnover below the VAT threshold can also opt to use MTD for VAT if they so wish. Businesses will not be asked to keep digital records, or to update HMRC quarterly, for other taxes until 'at least' 2020.

HMRC launched a private beta pilot of MTD for VAT in April 2018 and the pilot is now open to most VAT registered businesses and their agents. It is important that businesses are aware of these upcoming changes, and are preparing for the fast approaching deadline and considering whether it would be beneficial to join the MTD pilot.

HMRC has also deferred the introduction of MTD for VAT for a small minority (circa 3.5%) of businesses that have more complex requirements until 1 October 2019. This includes trusts, ‘not for profit’ organisations that are not set up as a company, VAT divisions, VAT groups and those required to make payments on account and annual accounting scheme users.

Planning note

HMRC has also agreed to give businesses until 31 March 2020 to make sure there are digital links between software products. This means that during the first year of MTD for VAT, businesses who use more than one software programme to keep their VAT records and prepare and file returns, will not be required to have digital links between those software programmes. From March 2020, bridging or MTD-compatible software will be required so that this information can be digitally sent to HMRC with no manual intervention.

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