Six months on since new rules on the application of Capital Gains Tax (CGT) for overseas investors in UK commercial property came into play, Stephanie Henwood-Darts, Director at JFA member firm JTC, looks at how the market looks and why Jersey remains a good option for supporting UK-bound real estate investment…

Q: In the six months since their introduction, have the new CGT rules had much of an impact on real estate fund structuring? Or is activity being ore influenced by other factors, such as Brexit?

A: There was an initial impact following the announcement, with tax advice pointing to, and therefore new funds being set up, onshore and through Luxembourg due to it having a favourable double tax treaty (meaning the UK does not currently have taxing rights over Luxembourg entities).

However, we are still seeing JPUTs due to the favourable elections that can be made (transparency election/exemption election) and the fact that the JPUT is a familiar structure which our clients already know and like. There is also the pull that we do not rely on double tax treaties but employ a tax transparent regime which means that tax is paid where the investment activity is and where investors are, which is completely appropriate.

Brexit is certainly having an impact on overall investment levels but there is an expectation that activity will increase once there is more certainty around the terms and timing of the UK’s exit.  

Q: In terms of how Jersey is positioned, has Jersey seen much of a swing in terms of fund activity targeting UK real estate assets since the new rules were introduced?

A: Although heads were initially turned, institutional investors are still favouring Jersey as a preferred jurisdiction through which to invest into UK commercial real estate. Now that there is a full understanding of the available elections for Collective Investment Vehicles (CIVs), it is expected that activity levels for Jersey funds will further increase.

Jersey is well placed to provide a tax neutral environment with an appropriate regulatory framework for investment funds raising global capital and investing in real estate all around the world, and this still includes UK commercial real estate.

Q: How do Jersey structures succeed in meeting the exemption options? Do the well-used JPUT and REIT structures continue to work well under the new rules?

A: Jersey structures work well under the exemption options which is largely due to the involvement of many Jersey professionals who ensured that they submitted detailed responses to the consultation and HMRC’s desire to protect the value of pension funds along with the attraction of the UK as a property investment jurisdiction.

Most JPUTS have been favouring the transparency election. This was designed by HMRC with JPUTs in mind and means that the JPUT will be transparent (just like it is for income tax purposes) and all investors will be taxed in accordance with their own profile. REITS are also a good alternative as they benefit from HMRC’s approved regime where the disposal of UK commercial property is treated as exempt from corporation tax and sales of shares also benefit from this exempt status.

However, all advice that we have seen in respect to REITS has been caveated with the fact that reporting requirements will be onerous. A Jersey REIT will automatically be UK tax resident so although there would be no tax benefit from structuring a REIT through Jersey, the benefit of regulatory flexibility (and certainty) and local expertise where any reporting can be handled in an effective and efficient manner should mean they increase in popularity.

Q: What about funds targeting other non-UK geographical markets? Are you seeing consistent RE activity elsewhere through Jersey?

A: We haven’t noticed a material increase in new funds targeting non-UK geographical markets but a number of clients with existing Jersey structures have added to them by including non-UK (mostly European) assets.

However, it is expected that there may be a spike in investment outside of the UK following Brexit. If this occurs, Jersey should be well placed to continue to be the home of fund vehicles and we see investment funds and structures being placed in Jersey which have global investment strategies, whether it's a London-centric special opportunities fund, a pan-European real estate fund or RE investment in Canada or the US.

Q: Looking forward to the coming 6 months, what do you see as the key influences on the global real estate market, and in terms of UK-focused activity?

A: We can’t escape discussing the ‘B’ word when talking about the next six months. Investors are already pricing in the cost of a potential no-deal Brexit and a dramatic decrease in the price of UK commercial property is predicted should this occur.

On the flip side, the weakness of the GBP could boost attraction towards the UK real estate market, in particular from US, Middle-East and Far-East investors. However, they may be put off by the potential difficulty in securing long-term (or any type of) leases, such was the initial sentiment in the aftermath of the Brexit vote. Communication with investors in respect of outlining the logic of decisions and clear strategic planning will be key to the success of funds navigating the post-Brexit landscape.  

Overall, Jersey has a great opportunity to promote its independence from the EU in respect of structuring it this time of uncertainty. Why structure through the EU for holding UK commercial property which will very shortly be outside of the EU? Jersey is already outside of the EU for regulatory purposes and is very much open for business!