Tax Journal – TOGC & ‘immediately consecutive transfers’ of business
A transfer of a business as a going concern (TOGC) is, subject to conditions, outside the scope of VAT. HMRC takes the view that the TOGC treatment is not available where there is a series of immediately consecutive transfers of business. However, neither the UK TOGC legislation nor Article 19 of the Directive expressly provide for any such restriction. The authors contend that where all parties are fully taxable, if an intermediate owner (B) of a business (transferred from A to B and then from B to C) can demonstrate that it intended to carry on the business in the interim period between the transfers (and can evidentially demonstrate that such business was in fact carried on, practice being the best evidence of intention), then the UK VAT TOGC treatment should apply to both the transfers (provided that the other TOGC conditions are met) irrespective of what time period the business is carried on for by B.