Member Since: 30th Jul 2015
28th Nov 2019
On point 1), about the 3% surcharge, I agree with The Dullard.
I wrote about it in my Case Notes; see the entry of 15 November 2019 linked here: https://www.blakemorgan.co.uk/sdlt-case-notes/
21st Sep 2019
Yes, the extra 3% will be due. All of Conditions A to D here https://www.gov.uk/hmrc-internal-manuals/stamp-duty-land-tax-manual/sdlt... will be met by each of them. The "replacement exception" (that is by failing Condition D) has a number of elements https://www.gov.uk/hmrc-internal-manuals/stamp-duty-land-tax-manual/sdlt... but can only assist where a main residence is replaced and cannot work in the buyers' favour on the basis that a let property was sold and is being "replaced" by another!
10th Aug 2019
Thanks Justin for drawing this to our attention. There are some useful parts of the judgement such as:
(a) The willingness of the Tribunal to look at cgt guidance and cases (though only to the extent it decided was relevant to cgt)
(b) The confirmation in para 32 of the judgement about the narrow meaning of s116(1)(c) about "an interest in or right over land that subsists for the benefit of a building within paragraph (a) or of land within paragraph (b)". The Judge said: "it seems to me to be right that paragraph (c) is not in point; that part is more apt to cover rights attaching to a property which are exercisable over someone else's land rather than rights or interests in the subject property itself."
14th Jul 2019
The guidance at SDLTM09800 is quite clear on this. The three year rules apply.
13th Jul 2019
You are right, to be able to use the sale of the previous main residence so as to come within "the replacement exception" you must have sold it within the previous three years. The calculator asks "Is the property being purchased replacing your main residence?" without giving an explanation of the three year tests that apply.
You do not say how old your kids are. If under 18 then their interests are treated as your interests for the purposes of the 3% surcharge. But you would succeed in forever robbing them of the status of first time buyers for the purposes of SDLT first time buyers' relief!
6th Jun 2019
I agree with Justin, as yet there is no "dwelling".
21st May 2019
If the parents buy a property as bare trustees then the "purchaser" for SDLT is the daughter. If she intends to live in the property as her only or main residence and meets the other conditions then first time buyer's relief is available.
There is an oddity in the legislation if the purchase is to be by way of taking the grant a new lease. For instance if a new flat is being bought. Then bizarrely the first time buyers' relief does not work as the odd rule about trustees taking leases is not displaced for FTB relief (though it is displaced for surcharge purposes). This is all very odd. HMRC agree it is odd, but say the rules are clear that "constructive interpretation" does not get around them.
21st May 2019
As part of considering whether the annex is suitable for use as a separate dwelling, the services should also be considered, such as the heating, electricity and hot and cold water. Are they capable of independent operation and isolation? What is the permitted planning use of the annex? Would it breach the planning for someone to live in it as a single dwelling?
Does the "kitchen" have hot and cold water and a sink with drainage?
7th Apr 2019
The trust purchase will almost certainly be liable to the higher rates of SDLT.
If the minor child has an interest in possession then this is because of FA03/Sch4ZA/para12 (treating parents and some other adults as the purchaser for surcharge purposes).
If no-one has a right to live in the property for life nor a right to the income from it then the higher rates apply because of FA03/Sch4ZA/para13.
23rd Feb 2019
So far as SDLT is concerned, the chargeable consideration is the same proportion of the mortgage as the proportion of the property that is transferred, see SDLTM04040 https://www.gov.uk/hmrc-internal-manuals/stamp-duty-land-tax-manual/sdlt... So in this case 1% of £400,000 which is only £4,000. See FA03/Sch4/para8.