VAT dilemma of construction projects

The construction industry plays a crucial role in the development of any economy. With Zimbabwe’s economic development agenda being premised on 14 pillars under the National Development Strategy, infrastructure development is said to be central to the achievement of the country’s economic goals. In pursuance of the same, the government set aside money for the sector in the 2023 national budget. There are therefore a number on going construction activities in the country.It is critical to stress that the sector, like other sectors of the economy, is not immune to the tax system’s issues and must negotiate its way through the complex tax rules. The VAT complexities of the construction industry stem from the time horizon disparities between the conclusion of the construction contract, the undertaking of the construction and the eventual settlement for the job done. This stands out as one of the construction industry’s distinctive complications, as well as a possible risk to tax compliance, liquidity, and profitability, particularly for small construction enterprises.

By their very nature, construction projects are long term, in some cases spanning several years before the project concludes. The law provides that VAT in the case of construction, manufacturing or construction and assembly work becomes chargeable upon payment being made in respect of any supply becoming due, is received, or any invoice relating only to that payment is issued, whichever is the earliest (underlined own emphasis). The interpretation of what is meant by “any supply becomes due” is critical. Because the construction project is often delivered in parts, it is impractical to expect the “supply which becomes due” to be the full project value.

The building contractor and the contracting entity must agree when the works have been finished for a supply to become due. The view currently embraced by tax authorities and courts is that construction or assembly work is completed when a certificate of completion or progress is issued. This may be viewed as the date of signing a handover protocol denoting the client’s acceptance of the work. In order for this to be achieved the following three conditions should be met : (a) a formal acceptance protocol should be stipulated by the parties under the contract, (b) such formal acceptance protocols are common commercial practice in the field in which the service is supplied and (c) it must not be possible to establish the consideration due by the client before the client formally accepts the construction or installation work. In the absence of a clause in the contract stipulating the acceptance protocols as aforesaid, it appears the date the “supply becomes due” is when the contractor announces to the buyer that the services are complete and ready for handover. How the agreement is worded is a critical consideration in the determination of a tax point underscoring the point in time, rights and obligations under the contract are exchanged by the parties.

The dilemma with construction contracts is that the process of works acceptance is often very long, consisting of multiple stages, and is never guaranteed to end successfully. When tax chargeability and invoicing date is to be conditional on the works becoming declared ready for acceptance, the contractor may find itself forced to issue an invoice and pay VAT although the contracting entity refused to accept the works and the invoice it received. If this happens, the contractor may find itself facing loss of financial liquidity as it will have to pay the VAT without itself being paid by the contracting entity for the work it performed. This stems from the fact that invoice is one of the three elements which may trigger VAT on a construction contract.

Moreso, VAT issue of front payments as indicated above is another problem, the time of supply is triggered when a supplier receives a payment. It is not relevant whether the goods or services were not physically supplied or performed at that time see: (Case L67 (1989) 11 NZTC 1,391). The fact that the contract is later cancelled does not void the supply. However, of essence is whether such upfront payment is a consideration for the supply or not. The VAT Act has defined term consideration to exclude a deposit, other than a deposit on a returnable container, whether refundable or not, given in respect of a supply of goods or services unless and until the supplier applies the deposit as consideration for the supply or such deposit is forfeited. Deposits are a customer’s way of reserving goods or services
or a sum payable as a first instalment on the purchase of something or as a pledge for a contract, the balance being payable later. The far-reaching consequence of this is that the contractor should be able to demonstrate that the upfront payment is a deposit which has not been appropriated to him/her as part of the supply. Where the amount is an advance payment it can be argued that VAT is triggered when such advance is received. In practice an advance payment helps the business to pay its actual costs during a contract. The issue of VAT on deposit is a topic which requires an in-depth analysis, and we will deal with it in our future articles.

In the final analysis the contractor will become liable to VAT based on the progress report as approved by the client, where billing or actual payment has preceded the certificate of completion such payment or invoice, whichever occurs first will trigger the VAT point. The certificate of completion as approved by the client or invoice will force the contractor to declare and pay the VAT long before receiving payment from the client which represents the biggest VAT dilemma within the construction industry. The upfront payment also, although a much better problem to deal with, will trigger VAT even when services has not been performed unless it can be demonstrated that the payment is a deposit as described above. All these are VAT intricacies bedeviling construction contracts which contractors should manage to avoid noncompliance penalties which may take a huge toll on the business liquidity as well threatening business going concern.

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