Angela Rayner’s SDLT mistake shows how easily property tax can go wrong
It is hard to get away from the news that Angela Rayner, the Deputy Prime Minister has been found to have underpaid Stamp Duty Land Tax (SDLT) when purchasing her current home.
Based on her statements to the public this week the confusion – or error – has arisen because her circumstances are unusual, making her SDLT exposure unclear, especially when dealing with non-standard situations.
As we understand it, it transpires that Ms. Rayner had use of another home, albeit one not owned by her, but which was owned in a trust set up for her disabled son. The property was the previous family home, and following her divorce from her husband, arrangements were put in place so that the children could remain in the home, with their parents occupying it at different times to be with them. Ms Rayner had sold her share to the trust to, as she says, provide ongoing stability for her son.
Ms. Rayner has said that she took professional advice, and it seems that that advice has led to what we now understand was the wrong conclusion.
In her defence, the UK tax system is complicated, and growing ever more so. We now have the largest tax legislation by volume in the world. And SDLT legislation, especially when combined with Trust ownership of property, is complex.
HMRC provide guidance on their website which seems clear, but with non-standard situations, it is necessary to go back to the myriad of tax legislation to ensure that all the nuances are taken into account.
So, what are the rules?
Generally, if you already own one of more properties, when you buy another property, you will pay a higher rate of SDLT – currently an additional 5%. There is an exceptions: If you are replacing your main home with the property you are purchasing, then the 5% surcharge does not apply. This relief is given if you are selling the property at the same time or if you have already sold your main home in the 12 months previous to the purchase. If you sell your previous main home in the 3 years following the purchase of the new home, then the 5% surcharge can usually be reclaimed at that time. That means that even if you have other rental properties, you will not be hit with the 5% surcharge every time you buy a new (main) home, provided you sell your previous main home.
The rules get more complicated where, for example, there is a married couple and one of the couple already owns another property which is not being sold. Whichever of the couple buys the new property, the 5% surcharge applies. For un-married couples, this does not apply, unless they are buying the new property jointly, and in which case the higher rate of SDLT is applied to the whole of the purchase price.
Importantly, what constitutes property “ownership” is interesting. If you occupy a property which is owned by a trust, as was the case with Ms. Rayner, then you may be treated as the owner. In the case of trusts settled for children, the parent may be treated as the owner, which appears to be what has happened here, although we do not know the exact terms of the trust. However, if our assumptions are correct, when she purchased her new home, it will have been deemed to be a second property with additional SDLT becoming due as a result of her children’s interest in the first property owned by the trust.
In conclusion, whatever the moral wrongs and rights of this particular case, the SDLT rules are complex and difficult to navigate, so it is important that for all but the most basic scenario that professional advice is taken to ensure that the right SDLT is paid, and if there is any question at all, get a second opinion.
What should you do now?
To avoid the issues Angela Rayner faced, contact us today. Our property hub brings together expert insights to help you handle property tax matters with confidence: Gravita Property Hub
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