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The Importance of a Contract Ben Phillips
Ben.Phillips@aspen-waite.co.uk
Just to share a lesson we have learnt recently in dealing with an enquiry on an R&D claim submitted for a client of ours. The company works in construction and as part of a job they had costed for a client, later found that their original plans would not work due to unseen structures in the ground below.
HMRC have argued that the work falls under the contracted work with their client and therefore they are being paid for the work. The consequence of this is that the claim should have therefore been made under the RDEC scheme, as the company received a contribution towards the project from a third party. Please see our claim eligibility flowchart to the right of this page.
It was recognised that a project was required to find a technical solution that would allow them to deliver their originally planned work to their client.
As there was nothing in the original work contract about any possible R&D resulting from any work carried out on this site, HMRC are unwilling to accept that the client did this work at their own risk outside of the terms of the contract.
We recognised this project under the SME scheme as, technically, we thought this project was separate to the work quoted to their client, so the construction company claiming R&D would retain any IP developed from this project.
As much of the claimed qualifying expenditure on this project was subcontractors, we’ve now had to amend and exclude these costs from the claim, reducing the claim value considerably (subcontractor payments are not allowable under RDEC rules).
Thankfully the contract with our client was from a large company or else the claim could have been disallowed by HRMC completely. The lesson to be learned from this experience is to make sure that any contracts you put in place with your clients has a clause in for any R&D resulting from your work on site. It must be stated that the contract between you is for standard work as quoted only. Any additional work (resulting in an R&D project) should be outside of the agreed contract and payments, and any IP developed remains your sole property. You would then be able to make your R&D claim under the SME scheme (company size depending) and get more money back for your hard work and innovations.
