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CCM's avatar

Just read this in the Edinburgh Minute. Do you have any faith in the authorities to do anything?

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Ollie C's avatar

Criterion's solicitor claims their only responsibility is to hold their tenant to the terms of their retail commercial lease, but in my experience, it is normal for retail leases to include a clause that the occupier must pay their taxes. e.g. here's the clause from a Sainsbury's commercial lease for a store premises I am familiar with (these leases are usually available to buy from the Land Registry as the rent is high enough to meet the requirement for mandatory registration): "To pay all existing and future rates, taxes, charges, assessments and outgoings which may at any time during the Term be assessed charged or imposed upon or payable in respect of or by the owner or occupier of the Premises ". I assume they include these clauses to reduce the risks of the local and national tax authorities coming after Criterion. It sounds to me that they may be selectively enforcing the terms of the lease, but it obviously depends on the tenant's covenants in the specific lease.

When the phoenixing happens and a new company takes over operations, is Criterion varying the existing premises lease to switch the company name to the new one (in doing so, without good reason, it could be at risk of enabling tax evasion), or is it accepting payment from the new company in relation to the existing lease with the old company, when there is no contract between Criterion and the new company? Wouldn't a properly run landlord business want their actual tenant paying the rent, not some other company?

I can't help but wonder why the local authority and HMRC, given the debts are so large, are not going to the High Court to get a writ and sending enforcement officers in to take control of all the stock and shut the businesses down - they have the power to enter commercial premises and seize stock and cash. There may be good reasons they can't do that, including it being under Scottish law, and maybe the process is too slow to be effective or phoenixing gets around it, but it seems absurd that a shop can deliberately not pay rates or VAT and suffer no consequences, and worse than that, be expanding their dodgy tax avoiding business empire.

Great work, Jim.

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