4 August 2020
Private Client - August 2020 – 2 of 3 Insights
With commentators speculating that the UK property market will revive in the coming months, here are some of the property tax questions our team has been answering recently.
In his Summer Statement on Wednesday 8 July, Chancellor Rishi Sunak announced a stamp duty holiday for property buyers in England and Northern Ireland. It took effect immediately and is to last until 31 March 2021. The threshold for SDLT has been raised from £125,000 to £500,000 and so anyone buying a residential home in England or Northern Ireland as their primary residence will not pay SDLT on any property that is valued below £500,000 (and for properties above this figure the total SDLT payable will be reduced due to the tiered nature of SDLT). While the increased threshold subsists, first-time buyers' relief will not apply as transactions that would attract this relief will be covered by the extended nil-rate band.
Adjustments to the thresholds for Land Transaction Tax in Wales and Land and Buildings Transaction Tax in Scotland will also apply until 31 March 2021.
The current surcharge was introduced in April 2016 and is an additional 3% on top of the normal SDLT rates if (broadly speaking) you already own another property anywhere in the world. This applies to both UK and foreign purchasers of residential property. HMRC calls it the Higher Rates on Additional Dwellings or HRAD. HRAD is still payable during the stamp duty holiday described above. On properties below £500,000 it will be the only SDLT payable.
The new tax is an additional 2% levy which will come into effect on 1 April next year and applies to non-UK resident purchasers. It was announced in the Chancellor's March Budget 2020.
It is interesting that there has been much more notice of the April 2021 surcharge than HRAD and it has been more widely publicised too.
The consultation document on this subject proposed that there be a simple 183 day-count residency test based on the 12 month period ending with the date on which the purchase of the residential property occurred. The Government's response to the consultation (together with draft legislation) has just been published. Despite representations from stakeholders that having a 183-day pre-transaction residence test alongside the existing Statutory Residence test for other taxes might lead to anomalous outcomes, the decision has been taken to proceed with the different SDLT test. The Government's stated rationale for this was that most people who will interact with the proposed surcharge will not be tax professionals and so simplicity of test was preferred.
No, not really. While it used to be common for foreign owners to hold property through non-UK companies and structures, legislative changes over the last few years have encouraged personal ownership of UK property. In particular, the successive introduction of ATED and the changes to the IHT rules have meant that, in most cases, it doesn't make much fiscal sense to hold UK residential property in companies. There are exceptions, such as rental property.
Some purchasers are worried about confidentiality and it is true that non-UK company ownership still offers a certain level of protection in this regard. However, even that advantage is time-limited as from next year most overseas companies and other entities owning UK residential property will be required to disclose their beneficial owners on a public register, subject to some transitional provisions. This is on top of other transparency initiatives, all of which mean that confidentiality is now much harder to achieve.
Taxpayers who sell their previous main residence outside of the three year time limit may still claim a refund of the 3% Higher Rates for Additional Dwellings charge if exceptional circumstances (including the impact of COVID-19) apply, the new main residence was purchased on or after 1 January 2017 and the previous main residence was sold as soon as reasonably possible after ceasing to be so prevented. HMRC's guidance has been updated and a new manual page has been added to explain how this works.
Since 6 April 2020 if you are a UK resident and you sell a residential property in the UK you have 30 days to tell HMRC and to pay any CGT owed, save for exceptions such as where Private Residence Relief applies. Otherwise you may be sent a penalty as well as having to pay interest on the tax owed.
Non UK residents still have to report sales or disposals of interests in UK property or land (whether or not there is a CGT liability) within 30 days of completion of the disposal but tax may no longer be deferred via Self Assessment and any tax owed must be paid within the 30 day window. This includes disposals of residential properties, non-residential properties and indirect disposals.
Reporting is now through the Government Gateway online service and sellers should note that it can take some time to be registered for the system and/or to authorise an agent to carry out this reporting. This is particularly important for trustees selling trust property who may need to obtain a Unique Taxpayer Reference for the first time before accounting for CGT.
The 30 day deadline is now back in force, having been temporarily waived during the COVID-19 lockdown.
by multiple authors