Insights

First-year capital allowances for oil and gas ring fence trade expenditure and section 198 elections

Capital investments, and particularly more complex investments, with greater upfront risk are likely to be most affected by the Orsted ruling with reduced qualifying costs for tax purposes. In this article we explore the tax implications of the ruling in detail.

The Supreme Court in Orsted v HMRC [UKSC 12] ruled that pre-construction environmental studies do not qualify for capital allowances. The Court established a narrow "close connection" test, holding that expenditure must be directly "on" the plant rather than merely "in connection with" it. Studies providing advice on how to choose or design plant are considered too remote and fall "well outside the limiting curve" of qualifying costs.

The Tribunal refused the application, concluding that while the underlying tax dispute involving £2 billion in Research and Development (R&D) allowances for Hinkley Point C is undeniably complex, the specific appeal against the information notice did not meet the necessary threshold requirements.

Today's capital allowances Budget changes might sound like a giveaway with a new 40% First-Year Allowances (FYA) for all businesses (with extensions for leasing) but that 18% to 14% Writing Down Allowance (WDA) reduction for existing 'main rate' plant or machinery (P&M) means that overall HM Treasury is hoping to raise an extra £1bn to £1.5bn annually from 2026/27.

A rates mitigation scheme for 'occupation' might be effective for non-domestic rates purposes but is unlikely to withstand scrutiny for 'use' in claims for Structures and Buildings Allowances.

When presented with a tax computation for review, the most important category of expenditure that frequently reveals hidden behaviours and compliance risk is what has been treated as ineligible for a tax deduction – the ‘non-qualifying’ costs.

Court of Appeal decision summary on the pre-construction (operational studies) costs for a major offshore windfarm.

Motor deals succeeds at Tax Tribunal on treatment of conversion costs being eligible for 100% 'Business Premises Renovation Allowance'

Tax Tribunal determines that expenditure on a new quay wall qualifies for plant and machinery allowances

In 2024, HM Revenue & Customs (HMRC) has been sharpening its focus on compliance checks for commercial real estate and infrastructure deals

Invest, Invest, Invest