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FHL and spousal transfers

FHL and spousal transfers

Victoria and David owned a FHL property for many years, and continue to let it on this basis.  The property stands at a gain and they have a chance to sell it, but for tax planning reasons they want to transfer the property in to one spouse's name prior to the sale.  Assuming the sale takes place within three years of the business activity ceasing, does ER apply in full on the sale by the single spouse?

s.169I TCGA1992 contains the legislation surrounding this, and subsection (2)(a) and/or (b) appears to qualify the transfer from one spouse to the other in that the initial transfer is covered by the usual inter-spouse rules, and at the point of the sale, the remaining spouse still is disposing of their "interest" - the level or size of their interest doesn't need to be quantified for the legislation to be applied.

However the real question appears to be whether they can be both treated as having owned the business up to the sale of the property - s.169I(3) and (4) both state that it is a material disposal if "the business is owned by the individual" for the relevant time periods. 

So, does the legislation take on a literal meaning - has the business been owned by the spouse selling the property for one year leading up to cessation of activity and within three years of this date, or did they only own 50% of the property for this amount of time, with the other 50% transferred from their spouse being own for only a matter of months?

Does anyone have any thoughts on this one?  The names have been changed (David is probably more upset not to be in the Olympics) and this isn't an exam question!




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