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Form 17 never submitted for BTL

Form 17 never submitted for BTL

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Hi all,
 

Looking for some assistance please and wonder if anyone would be kind enough to help.

We own a single BTL and have since 2016. I'm a higher rate tax payer, my wife is a basic rate. We had a declaration of trust drawn up stating she owned 99% and I owned %1.

We hired an accountant to do our taxes that year as we frankly didn't know what we were doing. The accountants were not great and as a result we started doing our own returns in subsequent years.

Doing our self assessment this year I came across the need for Form 17 and suddenly got a sinking feeling that it had probably never been submitted (as I said the accountants did not give us confidence). I called HMRC and this is indeed the case, so we likely now have to go back and pay tax assuming a %50 %50 split for the last 5 years.

Should the accountant have done this? What redress if any should be seek?

I'm already resigned to having to calculate, submit and pay the retroactive tax and if this is one of those things that is ultimately on me, then fair enough.

Replies (63)

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By Truthsayer
23rd Jan 2022 11:53

'Should the accountant have done this? What redress if any should be seek?'

It is not possible to answer that here. You would need a solicitor to review exactly what you and your accountant said to each other over the whole of the period of your engagement.

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By David Ex
23rd Jan 2022 11:58

Why is it that people join the site to ask for free professional advice but don’t bother saying “please”. It really is a bugbear of mine. Politeness costs nothing.

If you want to sue your accountant then you’ll need a solicitor (and good luck finding one who will act for free) or do it yourself via MCOL.

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Replying to David Ex:
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By xenicus
23rd Jan 2022 12:00

You are %100 correct. I copy pasted from a write up I had elsewhere and forget to say please, something I usually pride myself on. My apologies.

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Replying to David Ex:
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By xenicus
23rd Jan 2022 12:01

And I don't really want to sue anyone, just want some intuitive guidance as to whether this is the sort of thing that we just need to accept and move on. Or we should feel a legitimate grievance and looks to resolve it.

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Replying to xenicus:
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By David Ex
23rd Jan 2022 12:36

xenicus wrote:

And I don't really want to sue anyone, … Or we should feel a legitimate grievance and looks to resolve it.

Which is it? Looks like you owe tax so that will need resolving and paying. If you believe the liability is due to bad advice you can try and claim for any loss suffered as a consequence. That’s it. Can’t think of a third way.

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Replying to xenicus:
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By I'msorryIhaven'taclue
23rd Jan 2022 12:48

xenicus wrote:

We had a declaration of trust drawn up stating she owned 99% and I owned %1.

I guess we can safely infer that the legal ownership is that you and your wife are each 50% joint tenants (and not tenants in common) in the (residential, hopefully) BTL.

But who drew up the declaration of trust?

xenicus wrote:

We hired an accountant to do our taxes that year as we frankly didn't know what we were doing. The accountants were not great and as a result we started doing our own returns in subsequent years.

As you'll now be aware, Form 17 should have been lodged with HMRC within 60 days of the Declaration of Trust's creation.

Question is, was the accountant you hired to do your taxes that single year hired by you within 60 days of its creation? If not, then that accountant couldn't have beaten that Form 17 deadline anyway. Instead a new Declaration of Trust would have been required; although under such circumstances your accountant might have been perfectly justified in assuming that whoever created the Declaration of Trust would have lodged it with HMRC within the requisite 60 days.(Form 17 et al).

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Replying to I'msorryIhaven'taclue:
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By xenicus
23rd Jan 2022 13:03

Hi. Thanks for responding.

The solicitors managing the flat purchase drew up the declaration of trust at the time of the property purchase.

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Replying to xenicus:
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By Tax Dragon
23rd Jan 2022 13:08

OK, I retract my DIY comment below.

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Replying to xenicus:
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By I'msorryIhaven'taclue
23rd Jan 2022 13:19

xenicus wrote:

The solicitors managing the flat purchase drew up the declaration of trust at the time of the property purchase.

Ok, so the solicitors prepared the document but didn't advise that you lodge the DofT / Form 17 with HMRC?

That being the case, how long after purchasing the property did you appoint your accountant? More than 60 days?

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Replying to I'msorryIhaven'taclue:
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By xenicus
23rd Jan 2022 13:28

You are right. It is likely 60 days elapsed between the Declaration of Trust and hiring of accountant.

Just to remind people, we tried to do the right thing here. We engaged specialist services. We are not experts and never would claim to be.

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Replying to I'msorryIhaven'taclue:
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By Tax Dragon
23rd Jan 2022 13:07

FYI, that's not quite right. (Look it up.)

But - yet again - we're filling in the gaps that the OP has left in his account. In which account, btw, I think the opening shot re the accountants should probably read "The accountants charged a fee and as a result we stopped using them - except to copy what they did when doing our own returns in subsequent years."

Once a freeloader, always a freeloader. (That's why he's here.)

On the assumptions I make to fill in the gaps... the failure is on the OP, not on the accountant. (And yes, registering as 99:1 in the first place would have saved the fee for the DoT... oh wait, I bet that was DIY...)

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Replying to Tax Dragon:
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By I'msorryIhaven'taclue
23rd Jan 2022 13:19

Tax Dragon wrote:

FYI, that's not quite right. (Look it up.)

Should I have said within 60 days of the DofT being signed (rather than within 60 days of its creation)?

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Replying to I'msorryIhaven'taclue:
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By I'msorryIhaven'taclue
23rd Jan 2022 17:08

Ahha, I specified a 60 days' clock for Form 17 submission; which instead should have specified that that clock applies to the DofT (& Form 17) submission deadline. C'est careless of me. Seems I'm having a bad day, what with that and oil temperature off the gauge, an incontinent cistern, and a £200 CT appeal letter served an hour or two beyond its 30 days' shelf-life. Must do better!

Everything is wrong since me 'n my baby parted,
All day long I'm walkin' 'cause I couldn't get my car started,
Laid off from my job and I can't afford to check it,
I wish somebody'd come along and run into it and wreck it...

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Replying to Tax Dragon:
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By xenicus
23rd Jan 2022 13:20

Couple of things.

Am I to understand people shouldn't come here asking for advice? I did some research and found few places to ask about this sort of thing. I work in IT, I totally understand the frustration of being expected to give free tech support, so if this is an inappropriate use of this forum I can only apologise. I'm feeling pretty burned by our experience with the accountants and reluctant to further engage accountancy services although it is an option.

We tried to do the right thing and we paid for the services of someone to help us do that fully acknowledging we didn't know what we were doing. However our experience with them was not good. I don't know the value of going into specifics here but had they given us confidence we would have remained with them. Quite frankly it isn't worth my time and stress to do the taxes every year.

I was looking to see if it would be a very clear cut expectation for an accountant submitting tax returns relating to a BTL to have at least advised around Form 17. It sounds like it is not clear cut.

It's not a large sum of money, few thousand in dispute. So it sounds to me like we will have to accept the mistake, pay the tax and learn from it. Fair enough.

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Replying to xenicus:
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By I'msorryIhaven'taclue
23rd Jan 2022 13:49

Your accountant didn't inspire confidence in you, and I guess that's influencing your judgement.

So he prepared property rental accounts on a 99%/1% beneficial ownership basis, in accordance with your instructions. Was it reasonable of him to assume that you and/or your solicitor had properly delivered the requisite documents to HMRC? I believe the answer to that is it depends what exactly you engaged him to do. In IT terms, was he tasked with a full systems overhaul or with fixing a particular bug?

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Replying to I'msorryIhaven'taclue:
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By xenicus
23rd Jan 2022 13:58

Right. It depends. I would suggest we presented as people who didn't know what we were doing and were open about that stating we required help with our first year of BTL returns and thats largely why we were engaging an accountant. Can I prove that in any meaningful way? Probably not.

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Replying to xenicus:
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By Tax Dragon
23rd Jan 2022 14:10

Even if you could... they only did it for one year.

It's NWP.

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Replying to xenicus:
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By I'msorryIhaven'taclue
23rd Jan 2022 14:23

You'd be on a sticky wicket.

In order to succeed in any action for tort of negligence you're going to have to demonstrate that your accountant did not exercise a reasonable standard of skill and care when dealing with your affairs. In essence, your expectations might depend upon his level of expertise and at what level he holds himself out to the public (as an expert or as a generalist, for example). Same way as you'd reasonably expect more of a Jaguar dealership than of a back-street garage. He would no doubt defend by arguing that he'd performed adequately, and to the equivalent level of a practitioner of his standing - he doesn't need to have been the best, or even above average.

To compound matters, although civil matters are decided on the balance of proof situations can arise with negligence claims in which liability is apportioned between plaintiff and defendant. So the judge might decide, for example, that you (and/or your agent, your solicitor) were partially to blame for not submitting the requisite forms in the first place, and so reduce any damages accordingly.

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Replying to xenicus:
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By David Ex
23rd Jan 2022 14:22

xenicus wrote:

Am I to understand people shouldn't come here asking for advice? I

Absolutely. That is not the purpose of the site and giving tax advice is regulated by both law (MLR) and professional bodies.

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Replying to xenicus:
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By 356B
23rd Jan 2022 19:51

AW is for professionals who wish to bounce off each other, not really for Joe Public to get a first (or second) opinion. Try taxation web, where professionals try to help.

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By Hugo Fair
23rd Jan 2022 13:21

Possibly an unfair comment (and not specifically directed at OP), but what surprises (or I suppose annoys) me is the number of posts about scenarios which only arise because people aim to set up a position where they retain a chunk of ownership but want the tax liability to reflect a different ratio.

In plain English ... do they not trust their spouse (or children if relevant)?
Personally I'd be far more concerned if my trust turned out to have been misplaced than by the impact on potential tax savings. Old-fashioned or what?

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Replying to Hugo Fair:
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By xenicus
23rd Jan 2022 13:29

It was the spouses suggestion. Quite frankly I regretted the whole BTL endeavour even before these tax fun and games.

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Replying to xenicus:
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By Hugo Fair
23rd Jan 2022 13:49

I'm not trying to spread marital discord, but my points (more explicitly) were:
* If the initial objective was to generate income in the ratio of 99:1, then why not have arranged it so that ownership was in that ratio from the start?
* If you weren't sure of your initial objectives (or simply of the immense number of potential options), then getting professional advice in advance is advised.
* Not all professionals are equal (not just in terms of quality but in the scope of their expertise), so shopping around (having established the scope of your topics) is also advised.

In fact, a not dissimilar approach than what you probably apply to most IT projects!

Oh, one unrequested observation, any investment decision should be based (as well as on the more obvious criteria) on bringing some fun (not regrets) into your life.

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Replying to Hugo Fair:
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By xenicus
23rd Jan 2022 13:59

* If the initial objective was to generate income in the ratio of 99:1, then why not have arranged it so that ownership was in that ratio from the start?

We thought that is exactly what we were doing having the solicitor draw up the DoT at purchase time.

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Replying to xenicus:
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By Hugo Fair
23rd Jan 2022 14:43

Well that's not quite what I meant ... but if you google 'Deed of Trust Property UK' then you'll get pages of results - mostly from solicitors offering the service.

I chose https://www.deedoftrust.co.uk/ (no affiliation just based on their name) - and there on the home page is a section regarding Form 17 that says "If you are married and jointly own a buy to let property then a deed of trust can be extremely tax efficient."
I would expect any solicitor offering a DoT service to know their subject - so, per your OP, it sounds like your gripe is really with the solicitor not the accountant?

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Replying to Hugo Fair:
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By Tax Dragon
23rd Jan 2022 15:07

I don't have Mr Clue's depth of knowledge (QBE?) of suing and being sued, but OP hasn't yet said anything that indicates to me that he has anything actionable against anybody.

I do agree with him that I think we would ask for a copy of the Form 17 for our files, to justify the 99:1 split; so the fact that it hadn't been done would arise. But I don't think it's negligent - or even incompetent - to prepare returns on the basis that the client tells you to. (Same for a conveyancing solicitor, btw. Your link there was about property that is already owned.)

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Replying to Tax Dragon:
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By I'msorryIhaven'taclue
23rd Jan 2022 18:02

Tax Dragon wrote:

I don't have Mr Clue's depth of knowledge (QBE?) of suing and being sued, but OP hasn't yet said anything that indicates to me that he has anything actionable against anybody.

I come from a long line of high rolling but litigantly-inclined clients, and took some notice of how their legal representatives operated.

Lawyers are way smarter than us. They encourage people with an itch to escalate it into a scratching session, with total impunity because - let's face it TD - who on earth would attempt to sue an under-performing solicitor?

My overall take is that there are some embarrassingly awful solicitors out there. But it's fun watching them all lock horns and c*ck things up. Terrific sport!

You called it correctly earlier with it was only one year so why bother [suing]? IMHO the entire legal mechanism relies upon people with better bank balances than good judgement huffing and puffing their way through life: threats, consequences, if you don't do as I say then I'll do this...! Xenicus, if you are still there, then any legal action would be strictly for the birds.

Interesting, TD, the extent to which you might go in order to verify the Form 17 information you're (hypothetically, of course) given. For me it's a question of just where to draw the line - I cannot be dancing around checking out the terms of their mortgages and whether or not they're breaching them; or doing their thinking for them for the divorce they're heading towards.

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Replying to Hugo Fair:
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By I'msorryIhaven'taclue
23rd Jan 2022 17:26

Hugo Fair wrote:

In fact, a not dissimilar approach than what you probably apply to most IT projects!

High five, Hugo!

In fact, thumbs up for the post. Spot on!

OP, you're in danger of resorting to buck-passing. No spousal can-carrying, if you please.

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Replying to Hugo Fair:
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By More unearned luck
24th Jan 2022 11:08

"*If the initial objective was to generate income in the ratio of 99:1, then why not have arranged it so that ownership was in that ratio from the start?"

Don't understand this and TD's similar comment above. In England and Wales the only way property can be owned unequally is as TIC, so you would need the same DoT to sever the joint tenancy and to declare the ratio ab initio as you would if the matter was an afterthought. Indeed the OP says that the property has always been owned unequally.

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Ivor Windybottom
By Ivor Windybottom
23rd Jan 2022 23:19

Before getting in to deep... just check it is really jointly owned. If it owned by one spouse, but with a Deed providing 99:1 then a Form 17 is not in point, as it only applies where there is joint ownership.

Similarly Form 17 can only apply where there is ownership as tenants in common, which the legal Deed may have created if the ownership was only joint tenants.

Start by checking the precise details of the title deeds and the Deed to see what beast you actually have. You may be OK without a Form 17... but find the facts first!

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By Justin Bryant
24th Jan 2022 09:42

Amazing it took 28 comments before this basic starting point was correctly made! Just shows how (worse than) useless most comments here are.

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Replying to Justin Bryant:
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By Tax Dragon
24th Jan 2022 10:03

To be fair, Justin, it's up to the OP to state the basic starting point (aka the facts) correctly. But I agree that no forum such as this can ever be a subsitute for paid for advice.

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Replying to Tax Dragon:
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By Justin Bryant
24th Jan 2022 10:16

I think it would be fairer (and certainly more sensible) to only comment in the 1st place if you are sure you have something useful/relevant/correct etc. to say.

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Replying to Justin Bryant:
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By Tax Dragon
24th Jan 2022 10:30

Then on a thread such as this (where there were clear gaps in the narrative and you're saying that even the little we were told might be wrong) - no-one should comment.

Honestly, I don't disagree. In fact, I've said the same thing myself a thousand times in here. But good luck getting everyone else to listen.

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Replying to Tax Dragon:
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By Justin Bryant
24th Jan 2022 10:49

No, I'm saying only Ivor Windybottom's above comment should have been made and all the other comments (above his) are (worse than) useless.

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Replying to Justin Bryant:
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By Tax Dragon
24th Jan 2022 11:11

So OP goes away, checks it's joint, finds out that (as he thought - and as he told us) it is. Form 17 is in point. Not submitted. Ivor's comment is at that point spent and OP's question unanswered. Or can he then read above Ivor?

(Or are you saying that is the point he should take professional advice? Why then not now?)

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Replying to Tax Dragon:
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By Tax Dragon
26th Jan 2022 17:18

Tax Dragon wrote:

So OP goes away, checks it's joint, finds out that (as he thought - and as he told us) it is. Form 17 is in point. Not submitted. Ivor's comment is at that point spent and OP's question unanswered.

.oO And so it came to pass.

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Replying to Justin Bryant:
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By More unearned luck
24th Jan 2022 11:15

The OP said "We own...", so as well as asking OPs to provide missing facts, we should get them to check the facts they do provide? Fair enough if they say something contradictory or improbable, but otherwise?

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Replying to More unearned luck:
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By Tax Dragon
24th Jan 2022 11:26

I think Justin is proposing a new standard response to all MOP OPs. Not just "get an accountant" but "get an accountant and a lawyer - and take all your paperwork with you."

It's not unreasonable, maybe?

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Replying to Justin Bryant:
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By I'msorryIhaven'taclue
24th Jan 2022 11:22

Justin Bryant wrote:

Amazing it took 28 comments before this basic starting point was correctly made! Just shows how (worse than) useless most comments here are.

Actually Justin we did broach the issues raised by Ivor Windybottom early doors, in comment number 6 (when we, the panel, were still quizzing the OP in What's My Line style; viz:

I'msorryIhaven'taclue wrote:

I guess we can safely infer that the legal ownership is that you and your wife are each 50% joint tenants (and not tenants in common) in the (residential, hopefully) BTL.

But who drew up the declaration of trust?

The OP responded by informing us that the conveyancing solicitor had drawn up the DofT at time of purchase, but was silent regarding the legal ownership. So we were left to assume a residential property and (presently) a 50/50 joint tenancy (given the apparent failure to lodge documents with HMRC).

The matter went onto the back boiler because the OP's thrust was that he wanted to hold his accountant responsible, so that's where the thread went. Later he tried blaming his wife. Some thought the solicitor might potentially have been at fault.

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Replying to I'msorryIhaven'taclue:
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By Tax Dragon
24th Jan 2022 11:32

Ah - I have identified your misunderstanding. Why you were (and still are) wrong about the 60 days. You don't need to tell HMRC in order to change 50:50 ownership. In fact, unless you change the ownership*, you have nothing to tell HMRC (in that regard).

*Including (as here) initially... which isn't really a change.

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Replying to Tax Dragon:
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By I'msorryIhaven'taclue
24th Jan 2022 15:18

Tax Dragon wrote:

Ah - I have identified your misunderstanding. Why you were (and still are) wrong about the 60 days. You don't need to tell HMRC in order to change 50:50 ownership.

I'm struggling to get my head around that, TD. Living up to my name!

I thought the OP's entire purpose was to vary a 50%/50% joint ownership. Isn't that what the DofT and Form 17 and 60 days in which to notify HMRC are all about?

Time I went back in my box.

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Replying to I'msorryIhaven'taclue:
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By More unearned luck
24th Jan 2022 11:51

"The OP responded by informing us that the conveyancing solicitor had drawn up the DofT at time of purchase, but was silent regarding the legal ownership.So we were left to assume a residential property and (presently) a 50/50 joint tenancy (given the apparent failure to lodge documents with HMRC)."

No we are not.

The legal ownership of land can only be held jointly in England and Wales on a joint tenancy. You don't therefore need a DoT for a joint tenancy. The only time it is necessary to make a DoT is if you want the BO to be held TIC, (but resulting and constructive trusts can also create a TIC).

What should be inferred from the admitted fact is that the BO is held TIC, probably in the ratio 99:1. Any failure to lodge documents with HMRC doesn't change this, although it does mean the deeming rule applies.

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Replying to More unearned luck:
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By I'msorryIhaven'taclue
24th Jan 2022 15:07

More unearned luck wrote:

"The OP responded by informing us that the conveyancing solicitor had drawn up the DofT at time of purchase, but was silent regarding the legal ownership.So we were left to assume a residential property and (presently) a 50/50 joint tenancy (given the apparent failure to lodge documents with HMRC)."

No we are not.

Whyever not? Residential seems a reasonable assumption. And we're left to decide whether the legal ownership rests with one spouse or both. Both would seem a reasonable assumption (because the OP states "We own...

And both must surely mean 50/50 joint tenancy legal ownership. As for beneficial ownership, given the entire subject matter of the OP's post is an apparent failure to lodge Form 17 / DofT with HMRC then surely the BO would default to a deemed 50/50 joint tenancy.

More unearned luck wrote:

The legal ownership of land can only be held jointly in England and Wales on a joint tenancy. You don't therefore need a DoT for a joint tenancy. The only time it is necessary to make a DoT is if you want the BO to be held TIC, (but resulting and constructive trusts can also create a TIC).

So given that legal ownership cannot be as TICs, it seems their solicitor has created a DofT for the purpose you have outlined ie to change the BO to 99%/1% as TICs. But we're told that DofT and its resultant change in BO was not notified to HMRC; so they're stuck with HMRC's deemed 50/50 BO.

More unearned luck wrote:

What should be inferred from the admitted fact is that the BO is held TIC, probably in the ratio 99:1. Any failure to lodge documents with HMRC doesn't change this, although it does mean the deeming rule applies.

That's the bit I struggled with, and I see what you're saying. Given the Declaration of Trust was not delivered to HMRC within the requisite 60 days then I'd surmised that a new Declaration of Trust would be needed, and that in the interim HMRC would not recognise ie would disregard altogether the old out-of-date version and all of its 99%/1% & TIC provisions. (On which basis would not the effective BO be the pre-existing 50%/50% joint tenancy).

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Replying to I'msorryIhaven'taclue:
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By Tax Dragon
24th Jan 2022 15:14

HMRC does not govern how you own things.

Have a read of Form 17 (and HMRC's notes on it). It should all become clearer.

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Replying to Tax Dragon:
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By I'msorryIhaven'taclue
24th Jan 2022 15:23

Ahha, I see. I'll put it on my reading list.

So to all intents and purposes BO of 50%/50% so far as HMRC are concerned; whereas 99%/1% so far as the OP and his wife (not to mention his solicitor, ex-accountant, various landlord forums and everyone down his pub) are concerned. Penny's dropped.

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Replying to I'msorryIhaven'taclue:
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By Tax Dragon
24th Jan 2022 15:42

For income tax. Because of s836 or whatever it is.

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Replying to I'msorryIhaven'taclue:
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By More unearned luck
24th Jan 2022 19:58

"Whyever not? Residential seems a reasonable assumption.". It is irrelevant if the land has a dwelling on it. Land is land regardless of the type of building on it, or if there is no building on it.

Joint owners, A&B, own the legal estate as JT (no choice). The BO may be held TIC, which might be in unequal shares. Any income is taxed according to the BO (but see PIM about agreements). Exception: if A&B are married to each other (inc CP) and living together then any income is apportioned equally for IT purposes. Exception to the exception: A&B can elect to disapply the 50:50 deeming rule via form 17.

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Replying to More unearned luck:
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By I'msorryIhaven'taclue
25th Jan 2022 10:12

More unearned luck wrote:

"Whyever not? Residential seems a reasonable assumption.". It is irrelevant if the land has a dwelling on it. Land is land regardless of the type of building on it, or if there is no building on it.

Residential as opposed to furnished holiday accommodation.

There was a dearth of information from the OP, so that was my first assumption.

More unearned luck wrote:

Joint owners, A&B, own the legal estate as JT (no choice).

50%/50% legal ownership was my second assumption (based on the OP stating "We own..."). As opposed to sole legal ownership by either A or B.

More unearned luck wrote:
The BO may be held TIC, which might be in unequal shares. Any income is taxed according to the BO (but see PIM about agreements). Exception: if A&B are married to each other (inc CP) and living together then any income is apportioned equally for IT purposes. Exception to the exception: A&B can elect to disapply the 50:50 deeming rule via form 17.

That was my third and final assumption, 50%/50% BO because Form 17, we were told, had not been lodged with HMRC within the 60 days' window.

TD pointed out that I was incorrect - that the BO would nevertheless be 99%/1% in accordance with the OP's desire, courtesy of the DofT docs drawn up by the solicitor. So a more correctly stated assumption would have been a 50%/50% BO for income tax purposesbecause Form 17, we were told, had not been lodged with HMRC within the 60 days' window.

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Replying to I'msorryIhaven'taclue:
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By Justin Bryant
24th Jan 2022 12:34

But (as indicated above by MUL) the legal estate in land has not been able to be held jointly as tenants in common since 1925. I think I'll end there, as this thread is already far too long for the bad reasons stated above.

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