Everything you need to know about the new rules for overseas R&D expenditure

There are new rules on what your business can claim on overseas R&D expenditure.

For accounting periods starting on or after 1 April 2024, HMRC have introduced restrictions on the eligibility of overseas R&D costs for R&D tax relief including spend on externally provided workers (EPWs) and subcontractors – although there are exemptions, which the government defines as qualifying overseas expenditure (QOE).

The new rules mean that most businesses will only be able to claim for R&D work that that has taken place in the UK, affecting both the merged R&D scheme and enhanced R&D intensive support (ERIS) –  except, broadly, where it is impossible or wholly unreasonable for a company to replicate the conditions in the UK.

This blog explains the rule changes for claiming R&D tax relief on overseas R&D expenditure. We also offer detailed guidance on qualifying overseas expenditure (QOE).

How are the rules changing for R&D overseas expenditure?

Previously, the rules allowed you to claim R&D tax relief on costs that were either partially or wholly outsourced to overseas subcontractors or externally provided workers (EPWs).

For accounting periods starting on or after 1 April 2024, R&D expenditure on subcontractors or EPWs will only qualify if worker earnings are subject to UK PAYE and National Insurance Contributions (NICs), or if the work relates to R&D activity from outside the UK that qualifies under the new exemptions (see below).

What counts as qualifying overseas expenditure for R&D

There are three factors that must be met for R&D spend on work conducted abroad to count as qualifying overseas expenditure:

Let’s drill into each of these individually!

1. The necessary conditions for carrying out the R&D are absent in the UK

Sometimes it just won’t be possible to do the work in the UK. This might be due to:

Examples of work that can’t be conducted within the UK potentially include volcanic, seismologic, zoologic, botanic, oceanographic, mining, deep sea or climate change R&D – to name just a few. There may also be certain regulatory or other legal conditions that require work to take place in specific areas, such as clinical trials.

The government concedes that the legislation isn’t exhaustive but, generally, they suggest that reasons preventing work from being carried out within the UK should relate to physical (or material) factors such as:

2. The location where the R&D takes place has the necessary conditions

This is the simplest of the three factors because you just need to demonstrate that where you’re working has the necessary conditions that were absent in the UK. For example, suppose your R&D activity involves using sensors to study dangerous earthquakes. In that case, you’ll need to work in high seismic hazard zones such as the Circum-Pacific belt, the Alpide belt, or the mid-Atlantic Ridge (all of which are obviously outside the UK).

3. Replicating the conditions in the UK would be wholly unreasonable

Whether or not something is considered “wholly reasonable” will vary from company to company, and from R&D project to R&D project.

If there are R&D facilities, such as specialist commercial labs, that only exist abroad it may be wholly unreasonable for a UK company to create the facilities themselves. This might be because your business doesn’t have the expertise to do so, or it might be because it wouldn’t be commercially viable to create such a facility. There may also be a limited time frame for you to be able to carry out the R&D, and it would take too long to create the facilities yourself – or alternatively, there may be existing UK facilities, but they are fully booked, preventing you from carrying out your R&D in a reasonable timeframe.

If, however, the necessary R&D facilities do exist in the UK (and are available) or, if your existing facilities are similar and could reasonably be adapted, then you would be expected to carry out the work on home soil.

What is excluded from qualifying overseas expenditure for R&D?

Many businesses previously chose to outsource R&D abroad because it was either cheaper or too hard to find the right skillset within the UK. Unfortunately, you will no longer be able to claim for subcontracted work carried out overseas that was commissioned due to the cost of the R&D work or the availability of skilled workers as these are now classed as “excluded factors” under the new rules.

Why are the rules changing for R&D overseas expenditure?

Successive governments have wanted to ensure that when they pay out R&D tax relief, they’re predominantly doing so for work that’s done within the UK.

It’s not yet clear if these new measures will boost R&D activity in the UK as intended. To learn more about Leyton’s view on the exclusions for overseas subcontracted work and the cost of externally provided workers, read our original response to the draft legislation for the upcoming Finance Bill 2022-23.

How can my business prepare for the changes to overseas R&D expenditure?

If you plan to claim for overseas expenditure for either subcontracted work or EPWs, you’ll need to be able to demonstrate that it was necessary to conduct the R&D outside of the UK.

A good way to prepare for this would be to collect evidence showing why the work could not be done in the UK. Evidence might include correspondence from a regulatory body or a reference to the relevant legislation stating that activities must occur in a particular country.

Even if you are carrying out R&D with EPWs employed within the UK, you may still need to prove that expenditure was subject to PAYE and National Insurance Contributions (NICs). It’s therefore recommended that, where possible, you collect evidence of PAYE and NIC for all payments to EPWs.

How Leyton can help

While the rule changes on overseas expenditure significantly reduce businesses’ ability to claim for R&D work carried out abroad, there are clear situations where activity can be claimed for. As long as the material circumstances cannot be replicated in the UK, or it would be wholly unreasonable to replicate the circumstances, and you’ve chosen to carry out the R&D in an area where the necessary conditions exist – then your expenditure is likely eligible as QOE.

If you’re not sure if your work qualifies, or if you have a question that is specific to your business’ overseas expenditure, we’d be glad to help. 

Speak to one of our experts.

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