Recent residential property tax changes: your questions answered

IN-DEPTH ANALYSIS

With the UK property market bouncing back post lockdown, here's a round-up of the key property tax questions we've received recently.

What was the most recent Stamp Duty Land Tax announcement?

In his Summer Statement on Wednesday 8 July 2020, Chancellor Rishi Sunak announced a stamp duty holiday for residential property buyers in England and Northern Ireland. It took effect immediately and will last until 31 March 2021.

The threshold for SDLT has been raised from £125,000 to £500,000, 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.

Why are foreign buyers so interested in purchasing this year or in early 2021 to avoid "the surcharge"? Isn't there already an additional surcharge for foreign purchasers?

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 in 2020.

What does "non-resident" mean in the context of the 2021 surcharge? Is it the same test as for income and capital gains tax purposes?

The consultation document on this subject proposed 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) was published recently.

Despite representations from stakeholders that having a 183-day pre-transaction residence alongside the existing Statutory Residence test for other taxes might lead to anomalous outcomes, the decision was made 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, so simple test was preferred.

Are purchasers trying to structure things differently to mitigate the impact of the 2021 surcharge?

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 sense to hold UK residential property in companies. There are exceptions, such as rental property.

Can concerns about confidentiality be an issue for purchasers?

Some purchasers are worried about confidentiality and it's 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.

Have there been any changes due to the impact of COVID-19?

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 they reasonably could 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.

What changes have there been to Capital Gains Tax on UK property sales?

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, apart from some exceptions, such as where Private Residence Relief applies. Otherwise you may be sent a penalty notice, 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 done via 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.