Guidance on the Land Transaction Tax higher rates for purchases of residential property.

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First published:
28 November 2017
Last updated:

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LTTA/8000 Higher rates for purchases of residential property

(Schedule 5 LTTA)

The legislation in relation to the higher rates for purchases of residential property is in Schedule 5 LTTA 2017.

The higher rates of tax chargeable are set out in the regulations made by the Welsh Government and approved by the National Assembly for Wales.

The rates currently in force from 01/04/2018 are set out below.

LTTA/8010 Transactions to which the higher rate apply

The higher rates apply when a taxpayer, alone or with others, buys a major interest in one or more dwellings, and the relevant conditions are met and none of the exclusions apply. Where there are 2 or more buyers who are individuals, the higher rates rules apply if they apply to any one of the buyers. Separate rules apply to acquisitions where the buyer, or one of the buyers, is not an individual.

LTTA/8020 The higher rates conditions for individuals

(paragraphs 3, 11 and 20 Schedule 5)

Higher rates apply to a transaction according to specified conditions. These conditions differ depending on whether the buyer is an individual buying a single dwelling, an individual buying 2 or more dwellings or where the buyer is not an individual (e.g. a company).

Individuals buying a single dwelling

Where the buyer, or each of the buyers is an individual buying a single dwelling the conditions are:

  • the buyer, or buyers, are all individuals
  • the main subject matter of the transaction is a major interest in a dwelling
  • the chargeable consideration given for that major interest is £40,000 or more
  • the buyer, or one of the buyers, or their spouse or civil partner that they live with, has a major interest in another dwelling at the end of the day of the effective date of the transaction (including a major interest which has been purchased for a minor child), and
  • the interest in that other dwelling has a market value, on the effective date of the acquisition of the major interest in the new dwelling, of £40,000 or more
  • the interest acquired is not subject to a lease for an unexpired term of more than 21 years to someone who is not connected with the buyer

Individuals buying 2 or more dwellings

Where the buyer, or each of the buyers is an individual buying 2 or more dwellings the conditions are:

  • the buyer, or buyers, are all individuals
  • the main subject matter of the transaction consists of major interests in 2 or more dwellings and at least 2 of the purchased dwellings meet the conditions above
  • the chargeable consideration given on a just and reasonable basis for that major interest in the purchased dwelling is £40,000 or more.

Example 1

Miss A buys a freehold dwelling costing £200,000. She owns no other dwellings. She will not be liable to the higher rates on the transaction but will be liable to the main rates on her acquisition.

Example 2

Mr B sells his current home and purchases his new home costing £200,000. As he owns just a single dwelling, he will not be liable to the higher rates on the transaction. He will be liable to the main rates on the acquisition.

Example 3

Mr and Mrs D live in a property wholly owned by Mr D; Mrs D has no interest in this property. Mrs D decides to buy a property in her own name in which Mr D will have no interest. As Mr D already owns a major interest in another property, the purchase of the second property by Mrs D is subject to higher rates.

LTTA/8021 The higher rates conditions for non-individuals (conditions for companies)

Where:

  • the buyer, or one of the buyers, is not an individual, and
  • the main subject matter of the transaction is a major interest in a dwelling, or major interests in 2 or more dwellings, and
  • the chargeable consideration given for that major interest is £40,000 or more (the deemed market value rule may apply - see LTTA/2460 for further details).

the transaction will be subject to higher rates.

Example

C Ltd owns no interests in any residential property. It acquires a freehold dwelling costing £60,000. It is liable to the higher rates on that acquisition, as any purchase of a dwelling by a company is charged the higher rates.

LTTA/8030 Major interest

Schedule 5 to LTTA provides that a transaction is a higher rates transaction where the main subject-matter of the transaction consists of a major interest in a dwelling.

In turn, a major interest is defined (at section 68) as being an estate in fee simple absolute (freehold) or a term of years absolute (leasehold) subsisting at law or in equity (although leases granted for a term of less than 7 years are exempted).

Where land is held in Wales, the legal interest in the land is separated from the beneficial interest, which is also known as the economic benefit of the property.

In order to be a higher rates residential property transaction sub-paragraphs 3(2), 11(2) and 20(1) of Schedule 5 provide that the main subject-matter of that transaction must consist of a major interest. Not every transaction involving the transfer of a beneficial interest in residential property would be a transaction, the main subject-matter of which consists of a major interest (except as provided for in the Act for the purposes of the Act).

The vast majority of transactions involving residential dwellings are likely to involve the transfer of both the legal and beneficial interests. However, the legal ownership is separate from the beneficial ownership and the legal owner or owners will not necessarily be the same as the beneficial owner or owners.

The legal owner holds the beneficial interest in the property on trust for the beneficial owner. The beneficial owner will have a right to the income from the property or a share in it, and a right to the proceeds of sale of the property or part of the proceeds. The value therefore lies in the beneficial interest.

Where a property is purchased in joint names there is a trust of land. In such cases the buyers hold the legal estate as joint tenants and hold the beneficial interest in the property as either joint tenants or tenants in common.

Joint tenants are entitled to an equal share of the property. A key feature of a joint tenancy is the right of survivorship which means that upon the death of one co-owner, that co-owner's interest in the property will pass to the surviving co-owner by law.

Tenants in common hold the property in either equal or unequal shares which are known as undivided shares. An undivided share may be transferred to a third party. A transaction effecting the transfer of an undivided share may also involve a change in ownership of the legal estate, or it could relate to the beneficial interest alone.

Due to the possibility of beneficial interests being transferred separately from the legal interest, the policy intention is that transactions involving such transfers should be caught by the higher rates provisions, if the other conditions apply.

Jointly owned property

(Paragraphs 5(3)-(6) and 15(3)-(6))
 
Where a transaction meets the various conditions set out in Schedule 5, it is a higher rates transaction. One of these conditions is that a buyer who is an individual already has a major interest in another dwelling. Paragraphs 5 and 15 of Schedule 5 refer to the buyer having a major interest in another dwelling, and that interest having a market value of £40,000 or more. The buyer may hold that other dwelling jointly with another person.

This provides that when assessing whether this condition is met, the market value of the interest in the other dwelling is based on the buyer’s individual beneficial interest (as a proportion of the total value of the dwelling) rather than being based on the whole of the major interest.

Where the buyer is married or in a civil partnership, their interest will be combined with that of their spouse or civil partner to assess whether the £40,000 threshold has been met unless they are no longer living together (as defined by paragraph 25(3) of Schedule 5 LTTA) at the effective date of the transaction concerned.

Deeming provisions (paragraph 29) The deeming provisions in paragraphs 27 and 28 of Schedule 5 to LTTA apply in respect of certain settlements which entitle the beneficiary to occupy the dwelling for life or to income earned in respect of the dwelling, and also in respect of bare trusts involving leaseholds.

The effect of these deeming provisions is that it is the beneficiary rather than the trustee who is treated as the buyer (or as holding, or disposing of, an interest in a dwelling). The deeming provisions mean that it is necessary to look through the trust (be that a bare trust or the specific type of settlement trust specified in the paragraph above) to the beneficiary to determine whether the higher rates apply. This ensures that the right person is liable for the tax (i.e. the person who has the economic benefit of the property).

The aim of these rules is to put it beyond doubt that residential transactions involving the types of beneficial interest mentioned above will be caught by the higher rates provisions, even where there is no change in the owners of the legal estate.

These rules treat the subject matter of that type of transaction as one consisting of a major interest where, immediately prior to the transaction, the seller was deemed to own a major interest by virtue of the deeming provisions, and immediately after the transaction, the buyer is likewise deemed to own the major interest.

This will mean, for example, that where a person acquires only an undivided share in a dwelling (under a tenants in common arrangement), but the legal owners and other tenants in common retain their interest in the dwelling, then the acquisition will still be treated as an acquisition of a major interest. It will be subject to the higher rates (provided the other conditions are met).

Example

Mr A owns a number of buy-to-let dwellings with Mr B. Mr A is the legal owner of the properties with Mr A and Mr B owning the beneficial interest as tenants in common (in equal shares). Mr B wishes to dispose of his interest in one of the dwellings (dwelling Y) and Ms C is willing to purchase the 50% beneficial interest in the dwelling (for £50,000). Ms C already owns a number of buy to let dwellings with each having a market value of greater than £40,000 on the effective date of the acquisition of Mr B’s beneficial interest in dwelling Y. The legal ownership of dwelling Y is unchanged and remains solely in Mr A’s name. Ms C is liable to the higher rates on the acquisition of the beneficial interest in dwelling Y because all the relevant conditions have been met and Ms C is deemed to own a major interest in the dwelling following her acquisition of her interest in the dwelling held as a tenant in common.

Interest acquired is a lease originally granted for less than 7 years

(paragraph 37 Schedule 5)

A leasehold estate that did not exceed 7 years on the date it was granted is not a major interest, for the purposes of the application of the higher rates of LTT.

Major interest acquired is subject to a lease

(paragraphs 3, 13 and 20 Schedule 5)

A major interest in a dwelling will not be liable for the higher rates where the interest acquired is subject to a lease that has an unexpired term of more than 21 years, and is not held by a person connected to the buyer of the reversionary interest. The facts in relation to the lease are to be considered at the end of the day of the effective date of the acquisition of the reversionary interest.

LTTA/8040 How to establish the value of a beneficial interest in another dwelling

(paragraphs 5 and 15 Schedule5)

The rules for establishing if a beneficial interest in another dwelling is worth £40,000 or more, differ depending upon whether the beneficial interest in the dwelling is owned as joint tenants, or as tenants in common.

A married couple, or those in a civil partnership, have their interests, whether as joint tenants or tenants in common, combined to establish the value of the beneficial interest in the other dwelling unless they are not living together at the effective date of the transaction being considered for higher rates liability.

For joint tenants, the market value of the currently owned dwelling, at the date of the acquisition of the new dwelling, is divided by the number of joint tenants.

Example 1

Mr A is buying a buy-to-let property for £100,000. He already owns his main home with his (un-married) partner as joint tenants. That home has a market value of £250,000. Mr A’s interest in the home is £125,000 (£250,000/2). He is liable to the higher rates on the purchase.

Example 2

Miss B, a single woman, is buying her first home costing £100,000. Her grandparents left her and their other 7 grandchildren a house used as the family holiday home. The holiday home is owned by the grandchildren as joint tenants. It has a market value of £200,000. Miss B’s beneficial interest in the holiday home is £25,000 (£200,000/8). As her interest in the holiday home is worth less than £40,000 her acquisition of her main residence is not liable to the higher rates and will be assessed to the main rates and bands.

Example 3

Ms C is in a civil partnership with Ms D. Ms C is buying a buy-to-let property for £60,000. She already owns her main home with her civil partner as joint tenants. That home has a market value of £75,000. Ms C’s interest in the home is £75,000. This is because her civil partner’s interest is treated as hers for the purposes of establishing liability to the higher rates. She is therefore liable to the higher rates on the purchase. If the 2 women had not been in a civil partnership then Ms C’s beneficial interest in her current home would be £37,500 (£75,000/2) and she would not have been liable to higher rates on the purchase of her buy to let property.

Tenants in common

For tenants in common the market value of the currently owned dwelling, at the date of the acquisition of the new dwelling, is multiplied by the percentage of the interest to which the buyer is entitled.

Example 1

Mr A is buying a buy-to-let property for £100,000. He already owns his main home with his (unmarried) partner as tenants in common with Mr A owning 40% beneficial interest in the home. That home has a market value of £250,000. Mr A’s interest in the home is £100,000 (£250,000 x 40%). He is liable to the higher rates on the purchase.

Example 2

Miss B is buying her first home costing £150,000. She owns an interest, as tenants in common with equal shares, in a flat she purchased with 2 friends whilst at university. The 3 friends have not lived in the flat for 5 years, with it being let to students. The flat has a market value of £140,000. Miss B’s beneficial interest in the flat is £46,620 (£140,000x33.3%). As her interest in the flat is worth £40,000 or more her acquisition of her main residence is liable to the higher rates of LTT.

LTTA/8050 Definition of dwelling for higher rates purposes

(paragraphs 35 and 36 Schedule 5)

A dwelling for the purposes of LTTA is residential property comprising a single dwelling. A dwelling includes dwellings both in Wales and elsewhere in the world. Where the dwelling is not in England and Wales then a number of land law concepts that exist in the law of England and Wales are taken to be the equivalent in those other countries.

Similarly, the rules relating to dwellings owned by or on behalf of a minor child outside Wales, apply in the same way as they do in Wales, including in relation to the equivalent to court appointed deputies in those countries.

A dwelling for the purposes of the higher rates is a building or part of a building that is:

  • used or suitable for use as a dwelling, or
  • in the process of being constructed or adapted for use as a dwelling (which will include dwellings bought off plan).

Suitable for use as a dwelling is a question of fact, and consideration as to whether the residents can live independently of the residents elsewhere in the building, separate and private access to the areas of occupation etc. will be important in considering this matter. In a house of multiple occupation, the absence of a private kitchen or private bathroom will be indicative that the house as a whole is a dwelling rather than the individual rooms within that house each representing a separate dwelling.

A dwelling for the purposes of the higher rates will include holiday homes and properties let as furnished holiday lettings (including those that have restricted occupation which prevent the dwelling from being occupied all year round, and properties such as holiday park lodges).

The garden or grounds and any buildings on the garden or grounds are part of the dwelling, to the extent they are considered to be residential property for the purposes of LTTA, and the consideration given for these will also be liable to the higher rates. However, where the buildings in the garden or grounds (or a separate flat, for example a basement flat in a house) are themselves also dwellings, the buyer will be acquiring more than one dwelling as a result of their purchase and the higher rates of LTT will be payable.

Where the additional dwellings meet the conditions of the subsidiary dwellings rules then the higher rates will not apply.

Where a taxpayer acquires residential land that does not include a dwelling (for example a part of a garden) then the higher rates will not apply as the transaction does not include the purchase of a dwelling.

The main subject-matter of a transaction will also be an interest in a dwelling (such as off plan purchases) if:

  • there is substantial performance of a contract
  • the main subject-matter includes an interest in a building or part of a building that is being constructed or adapted under the contract for use as a dwelling, and
  • construction or adaptation has not begun by the time the contract is substantially performed.

If non-residential land is owned on which the taxpayer is seeking, or has obtained, planning permission to convert to residential, that major interest in the land is not treated as an interest in a dwelling until construction or adaptation actually commences. The seeking or obtaining of planning permission falls short of the process of construction or adaptation for use as a dwelling. However, in the event that such a property was sold once construction or adaptation has commenced, if the other conditions for LTT higher rates to apply to the transaction are present, the acquisition by the buyer would be liable to the LTT higher rates.

A dwelling for the higher rates of LTT does not include interests held in or acquisitions of caravans, houseboats and mobile homes.

LTT in its definition of a residential property, defines certain buildings as being residential (for example residential accommodation for school children) and certain buildings as not being used as a dwelling (for example a prison). For the purposes of the LTT higher rates rules, none of the buildings listed are subject to the higher rates.

LTTA/8060 Exclusions to the higher rates

The higher rates of LTT do not relate to:

  • transactions where the consideration given for the acquisition of the interest is less than £40,000
  • non-residential or mixed use transactions
  • subsidiary dwellings when specific conditions are met
  • replacement of a main residence when specific conditions are met
  • Interests acquired in the same main residence where the conditions are met
  • retaining interests in former matrimonial home following divorce or dissolution of civil partnership
  • purchase by court appointed deputy for minor child
  • transactions where, in certain circumstances, the interest acquired is subject to a lease with an unexpired term of more than 21 years to someone other than a connected person.

Attempts to artificially circumvent the application of the higher rates of LTT, may be challenged by the WRA through the application of the General Anti-avoidance Rule (GAAR).

LTTA/8070 Non-residential and mixed transactions

Where a taxpayer acquires a major interest in, 6 or more dwellings in a single transaction, the taxpayer has the option to treat the transaction as a non-residential transaction. If the taxpayer opts for this treatment then the non-residential rates of LTT are used to calculate the taxpayer’s liability. Alternatively they could treat the transaction as residential and, if a claim is made, apply the rules for multiple dwellings relief. If this option is followed then the LTT higher rates are used to calculate the liability.

Where a taxpayer enters into a mixed-use transaction, for example a farm or a shop with a flat above, the non-residential rates of tax will apply to the transaction.

It is important to note that whilst the acquisition of the property may be taxed at non-residential rates, that tax treatment does not make the dwellings non-residential property when the interests in dwellings a taxpayer holds must be considered for future transactions.

Example

Mr and Mrs A acquire a chip shop with a flat above on 1 June 2020. Prior to the acquisition, they own no other property. The transaction is a mixed-use transaction and therefore the non-residential rates of tax apply to the acquisition. 3 years later Mr and Mrs A acquire a house costing £150,000 to use as their main residence. They choose to leave the flat above the chip shop (which has a market value of £70,000) empty. They are liable to the LTT higher rates on the acquisition of the house, as at the time of that acquisition, they own a major interest in a dwelling with a value of greater than £40,000 (the flat above the chip shop) and are not replacing their only or main residence.

LTTA/8080 Subsidiary dwelling exceptions

(paragraph 14 Schedule 5)

Where:

  • An individual taxpayer acquires more than one dwelling as part of a transaction to replace their main residence, or;
  • An individual taxpayer acquires more than one dwelling as part of a transaction to acquire a dwelling and they do not own any other interests in dwellings

higher rates may not apply to the transaction if the following conditions are met:

  • the additional dwelling or dwellings are within the same building or in the grounds of another dwelling (the “principal dwelling”), and
  • the amount of consideration given, based on a just and reasonable apportionment for the additional dwelling (the “subsidiary dwelling”), is equal to or less than one third of the total consideration given.

Such transactions benefit from the subsidiary dwelling exception and should be taxed at the main residential rates.

In most cases, the valuation of the subsidiary dwelling should be based on the value of the building only, rather than the building and an apportionment of the garden or grounds of the principal dwelling. There may be cases where as a matter of fact part of the grounds clearly exist solely for the benefit of the subsidiary dwelling. In such cases, it will be appropriate to include those grounds in the valuation of the subsidiary dwelling.

This subsidiary dwelling exception is not restricted to just one additional dwelling. The exception can also apply to a transaction if:

  • the transaction includes 2 or more additional dwellings that are within the same building or in the grounds of the principal dwelling, and;
  • all consideration on a just and reasonable apportionment for all of the additional dwellings is less than one third of the total consideration given.

The subsidiary dwelling must be a dwelling in its own right on the effective date of the transaction. This means that it should be able to support somebody living independently of the principal dwelling.

To establish whether a property contains one or more dwellings, a number of factors should be taken into account. The following factors are indicative of whether something is a dwelling or suitable for use as a dwelling in its own right. There is no one single determinative factor; all of the factors should be weighed up together. The factors should be applied to the property as it is/was on the effective date of the transaction.

  1. A toilet and washing facilities

    Each dwelling should contain a toilet, sink (other than the kitchen sink) and bath or shower.
     
  2. Accommodation for both ‘living’ and sleeping

    In each dwelling, there should be space for a bed, somewhere to sit and somewhere to eat.
     
  3. The facility to store, prepare and cook food, as well as ‘wash up’

    Each dwelling should contain a kitchen that would normally include an oven and/or hob, hot and cold running water, a space to prepare food (for example a counter top) and a space to store food.
     
  4. Independent access to both dwellings

    If the subsidiary dwelling is in the same building as the principal dwelling, a door directly to the outside is not necessarily required; the property may be entered via a communal hallway/landing area. If, however, access is through the living area of the principal dwelling, then it is unlikely to be classed as a subsidiary dwelling.
     
  5. If there is an adjoining door between the two dwellings this should be lockable.
     
  6. The occupant should be able to exercise a degree of control over the supply of utility services.

    Where the two parts of the property have independent controls over utilities (including electrical consumer unit, stopcock, gas/oil isolation valve, thermostat), this suggests that each part may be a separate dwelling in its own right. However, the absence of these facilities does not necessarily indicate a single dwelling.

These tests should be applied to the entire property, not just to the subsidiary dwelling. For example, where works have been undertaken on a single house to create an annex, but the only kitchen in the building is within the annex, this is unlikely to be viewed as a principal dwelling and a subsidiary dwelling, but rather a single dwelling.

The same will be true where access to the annex is via a communal hallway which is also used by the occupants of the principal dwelling to move from one room to another in the principal dwelling. The property in Figure A (below) has a communal entrance from which two separate parts of the property can be accessed. This is more likely to mean the property comprises of two dwellings.

However, in Figure B (below) there is a hallway from which a number of rooms can be accessed and it is necessary to use the hallway to move between the living quarters of part of the property. This is less likely to mean that the property is split into two separate dwellings.

Figure A shows a house which has been subdivided into two dwellings with a common hallway with an entrance door to the two different parts of the same property.

Figure B shows a house with a hallway where each of the rooms are individually accessed off the hallway, except three that are interconnected, from which there is only one door into the hallway.

Removing fixtures alone is unlikely to make the property unsuitable for use as a dwelling. In most circumstances, the pipework and circuitry will remain, meaning that the items could easily be re-installed.

The presence of planning permission for an annexe or similar is indicative of there being more than one dwelling on the property. In addition, disaggregation for Council Tax Purposes is indicative of the property comprising of more than one dwelling. 

Example 1

Mr and Mrs A purchase a terraced house that has a basement flat. The consideration in total is £300,000. They own no other residential property. The chargeable consideration, apportioned on a just and reasonable basis, for the 2 dwellings is: £225,000 for the ground and upper floors maisonette, and, £75,000 for the one bedroomed basement flat. As the chargeable consideration for the basement flat represents 25% of the total consideration (which is less than one third of the total consideration) the basement flat is a subsidiary dwelling. As such, the higher rates do not apply to the transaction.

In most cases, the valuation of the subsidiary dwelling should be based on the value of the building only, rather than the building and an apportionment of the garden or grounds of the principal dwelling. There may be cases where as a matter of fact part of the grounds clearly exist solely for the benefit of the subsidiary dwelling. In such cases, it will be appropriate to include those grounds in the valuation of the subsidiary dwelling.

This subsidiary dwelling exception is not restricted to just one additional dwelling. The exception can also apply to a transaction if:

  • the transaction includes 2 or more additional dwellings that are within the same building or in the grounds of the principal dwelling, and;
  • all consideration on a just and reasonable apportionment for all of the additional dwellings is less than one third of the total consideration given.

The subsidiary dwelling must be a dwelling in its own right on the effective date of the transaction. This means that it should be able to support somebody living independently of the principal dwelling.

To establish whether a property contains one or more dwellings, a number of factors should be taken into account. The following factors are indicative of whether something is a dwelling or suitable for use as a dwelling in its own right. There is no one single determinative factor; all of the factors should be weighed up together. The factors should be applied to the property as it is/was on the effective date of the transaction.

Example 2

Mrs B purchases a small holiday letting business consisting of 3 dwellings in total within the same grounds; a 4 bedroomed principal property, and 2 one bedroom cottages. She owns no other residential property. She pays a total of £600,000 for the properties. The just and reasonable apportionment of the chargeable consideration given is £400,000 for the principal property and £100,000 for each cottage. The chargeable consideration given for the principal property represents exactly 2 thirds of the consideration, with the 2 cottages (subsidiary dwellings) representing exactly 1 third of the consideration. This complies with the rules meaning that the higher rates will not apply to the transaction. Mrs B may choose to make a claim to multiple dwelling relief and calculate her liability according to those rules.

Example 3

Mr C, who owns no other dwellings at the effective date of the transaction, purchases a small holiday letting business consisting of 4 dwellings in total within the same grounds; a 4 bedroomed principal property, and 3 one bedroom cottages. He pays a total of £700,000 for the properties. The just and reasonable apportionment of the chargeable consideration given is £400,000 for the principal property and £100,000 for each cottage. The chargeable consideration given for the 3 cottages (subsidiary dwellings) represents more than 1 third of the total consideration. This does not comply with the subsidiary dwelling rules and therefore the higher rates will be chargeable to the transaction.

However, it is acceptable, where such a land transaction is possible, for the purchase to be structured so that the principal property is purchased in one land transaction and the holiday letting properties in a separate later linked transaction. The principal dwelling will be taxable at the main LTT rates and the 3 cottages at the higher rates. Mr C may choose to make a claim to multiple dwelling relief and calculate his liability according to those rules.

LTTA/8090 Replacement of main residence

(paragraphs 8 and 17 Schedule 5)

A taxpayer who sells their main residence and replaces it with a new only or main residence (‘main residence’) either within 36 months before the sale of the former main residence, or within 36 months after the main residence is sold, may pay the main rates on the transaction rather than the higher rates. 

To qualify for this exception, the sold property must have been the taxpayer’s only or main residence at any time in the period of three years before the effective date of the transaction (the purchase of the replacement main residence). 

Transitional rules have been introduced for the introduction of LTT. In respect of transactions where the main residence is disposed of before 25 November 2015 and the main residence has not yet been replaced, then if the replacement main residence is acquired by on or after 1 April 2018 and on or before 26 November 2018, then the higher rates will not apply. Thereafter the 3 year rule applies.

In respect of transactions where the main residence is disposed of within the period of 36 months after the replacement is acquired, the taxpayer must apply the higher rates rules to the transaction on the effective date of the relevant transaction and pay the higher rates of LTT.  In the event that the relevant conditions for the replacement of main residence are met, the taxpayer may claim a repayment where necessary.

The rules relating to the replacement of a main residence apply only to those transactions made by an individual or individuals and not to those made by companies or other non-natural persons, or by individuals and companies or other non-natural persons jointly.

LTTA/8091 Higher rates and linked transactions

This section of guidance describes how the higher rate provisions interact with linked transactions.

Replacement of main residence and linked transactions

The replacement of a main residence exception rules apply in the scenario where:

  • a taxpayer has purchased 2 or more dwellings as part of a number of linked transactions (see LTTA/2040)
  • one of those dwellings replaces the taxpayers’ current main residence, and
  • the dwelling which is to replace the taxpayers’ current main residence was purchased in a separate transaction from the other dwellings.

Where one of the linked transactions involves the purchase of a replacement main residence and meets the criteria set out in LTTA/8090, the taxpayer is able to apply the exception to that transaction. This means that the main residential rates of tax apply to that transaction. The higher rates apply to the remaining dwelling transaction(s) in the usual way.

As the transactions are linked and one of the transactions is at main rates, and the other(s) at higher rates, to calculate the tax the taxpayer should follow a computation method which will result in an apportionment of the total consideration for all of the transactions between main rates and higher rates. The computation method can be found below.

The calculation only applies where the replacement main residence is purchased in a separate linked transaction to the other dwellings being purchased. Where the replacement main residence is purchased in the same transaction as 1 or more other dwellings, the conditions at LTTA/8020 for buying 2 or more dwellings apply.

Purchasing 2 or more dwellings where the taxpayer doesn’t have a pre-existing main residence

Where a taxpayer, who has no pre-existing interest in another dwelling and where the replacement of main residence exception does not apply, is purchasing:

  • 2 or more dwellings as part of a number of linked transactions, and
  • the transactions have the same effective date

the buyer will have a major interest in another dwelling at the end of the day of the effective date of each transaction, so all of the transactions will be subject to higher rates if the other conditions in LTTA/8020 are met.

Where the linked transactions are structured so that they take place on different days main residential rates will apply to the first transaction, and the higher residential rates will apply to the later additional dwelling transaction(s).

As the transactions are linked and one of the transactions is at main rates and the other(s) at higher rates, to calculate the tax the taxpayer should follow a computation method which will result in an apportionment of the total consideration for all of the transactions between main rates and higher rates. To calculate the total tax due the taxpayer should follow the computation method detailed below.

Computation method

Where a taxpayer is buying 2 or more properties as part of a number of separate linked transactions, and one of the transactions is to be taxed at the main residential rates, and the other transaction(s) at the higher residential rates then the following computation method should be followed.  

  • Step 1 Calculate the tax for the entire consideration (for all transactions) at the main rates.
  • Step 2 Calculate the tax for the entire consideration (for all transactions) at higher rates.
  • Step 3 Calculate consideration for main rate transaction as percentage of total consideration.
  • Step 4 Calculate consideration for higher rate transaction(s) as percentage of total consideration.
  • Step 5 Multiply the total main rates tax (calculated at step 1) by the percentage of the consideration which is to be charged at main rates (calculated at step 3).
  • Step 6 Multiply the total higher rates tax (calculated at step 2) by the percentage of the consideration which is to be charged at higher rates (calculated at step 4).
  • Step 7 The total of step 5 and step 6 is the tax due.

Example 1

Mr and Mrs A purchase two dwellings in 2 separate but linked transactions. The first transaction is for the sale of a house which is to replace Mr and Mrs A’s main residence and the consideration paid by Mr and Mrs A is £300,000. The replacement of a main residence exception applies to the first transaction. The second transaction is for a smaller property (a buy to let investment) and the consideration paid by Mr and Mrs A is £200,000. The total consideration is therefore £500,000.

Mr and Mrs A should calculate the LTT due as follows:

  • The tax due at main rates based on the total consideration of £500,000 is £17,450. 
  • The tax due at higher rates based on the total consideration of £500,000 is £32,450. 
  • The first transaction (to which the replacement main residence exception applies) accounts for 60% of the consideration. The tax due for the first transaction is therefore £10,470 (£17,450 x 0.6).
  • The second transaction (which is higher rates) accounts for 40% of the consideration. The tax due for the second transaction is therefore £12,980 (£32,450 x 0.4).
  • The total tax due for the transaction is £23,450.

Example 2

Mr B is buying his first home for £250,000, and a neighbouring dwelling for £200,000 which he plans to let out. The properties are being sold in 2 separate but linked transactions with the same effective date. Both of the transactions will be subject to the higher residential rates.

It is acceptable for Mr B to structure the transactions so that the effective date of his purchase of the dwelling that will become his main residence takes place on an earlier day than the purchase of his investment property. He would then pay main residential rates on the transaction for his main residence, and higher residential rates on the transaction for his investment property and would apply the computation method set out above.

LTTA/8100 An only or main residence

It is a question of fact as to what constitutes someone’s only or main residence. It is a question that is not dependent upon ownership of the place of residence by the individual living in the property. Most individuals have only one place of residence with that dwelling being their only or main residence. For example an individual who owns a flat and lives in that flat permanently will have that flat as their main residence. An individual who rents that flat and it is where they live permanently, will have that flat as their only or main residence. It should be noted that if an individual rents a dwelling which is their only or main residence and also owns a dwelling that they let out then, despite the fact that they own one dwelling and rent the other, the dwelling they own will not be their only or main residence.

Where the individual owns more than one dwelling, for example if they live in Cardiff during the week with their family and spend many weekends and several weeks during the year in Criccieth where they own a holiday home, the full facts will need to be considered to establish where that individual’s main residence is located. On these bare facts, the main residence would be the Cardiff home. There is no opportunity in LTT to nominate one of the residences as a main residence.

However, the main residence is not necessarily the residence at which the individual spends the majority of their time living, although commonly, as above, it will be. The question of an individual’s main residence was considered in Frost v Feltham (Frost v Feltham (1981) 1 W.L.R. 452). The High Court decision sets out some of the criteria to be applied.

The following are points to consider, they are not exhaustive and no single point is determinative:

  • Is the individual married, in a civil partnership, or co-habiting? If so where does the spouse, civil partner or co-habitee live?
  • Does the individual have children? If so where do they live? Where do they go to school?
  • At what residence is the individual registered to vote?
  • Where is the individual’s place of work?
  • How is each residence furnished?
  • Which address is used for correspondence?
  • Where is the individual registered with the doctor and dentist?
  • Where is the individual’s car registered and insured?
  • Which is the main residence for council tax?

In relation to dwellings owned or disposed of the question will be one of objective fact – was the old dwelling at the relevant time the individual’s only or main residence?

Where the test needs to be applied at the point of acquisition of the new dwelling, then it is a question of intent as to whether the dwelling is to be used as that individual’s only or main residence. Facts related to that purchase may be relevant in either supporting the taxpayer’s stated intention at the point of purchase or indicating a different intention.

For example if the taxpayer obtained the new dwelling with a mortgage and that mortgage was a buy-to-let product that would be indicative of the taxpayer’s intention. Similarly, if the property was placed with a letting agent shortly after it was acquired, or had a sitting tenant with protected rights, that may be indicative of an intention not to use the property as an only or main residence. Alternatively, if the property is located near relatives and the taxpayer’s intention is to move nearer to that family member to provide support and care then, should that care no longer be required (perhaps due to death, or that person moving) then the evidence is supportive of that intent, even if ultimately the taxpayer does not move to that dwelling.

LTTA/8110 Sale of former main residence before buying new main residence

Please refer to LTTA/8090 when reading this guidance.

Where a taxpayer has sold their former main residence before they buy their new main residence then, where the conditions are met, the taxpayer will pay the main rates and not the higher rates of LTT, irrespective of how many other properties they may own.

The conditions are:

  • on the effective date of the acquisition, the dwelling is intended to be the taxpayer’s only or main residence (‘main residence’)
  • that during the 3 years ending on the effective date of the acquisition of the new main residence, the buyer or their spouse or civil partner at the time disposed of a major interest in a former main residence
  • that they held no major interest in that former main residence, including any interest in the garden or grounds, following the disposal (unless a taxpayer’s spouse or civil partner retains a major interest in that property and they are no longer living with the taxpayer), and
  • that no other dwelling that was intended to be a new main residence was acquired during the period between the sale of the former main residence and the acquisition of the new main residence.

The Land Transaction Tax (Transitional Provisions) (Wales) Regulations 2017 include, at regulation 12, transitional rules that apply to situations where a taxpayer has sold their main residence on or before 25 November 2015 and have not replaced that main residence either before or since that date. The transitional rule provides that in these circumstances the taxpayer will have until 26 November 2018 in which to replace the main residence and not pay the higher rates of LTT. However, if the effective date of the transaction occurs after 26 November 2018 then the higher rates of tax will apply.

Example 1

Ms A sells her main residence on 1 April 2020. On 1 January 2022 she buys a dwelling she intends to be her main residence. She owns no other interests in dwellings. In the interim she lived in a dwelling she rented. Ms A is replacing her main residence and has done so within 3 years of the sale of the former main residence. The exclusion provided therefore applies to the purchase of the new main residence and the main rates of LTT will apply. It should also be noted that the transaction is excluded from the higher rates rules in any case (and without time restriction) as Ms A does not own an interest in another dwelling at the point of purchase.

Example 2

Mr B owns 4 buy-to-let dwellings and his main residence. On 1 April 2020 he sells his main residence and moves into one of his vacant buy to let properties. On 1 December 2020 he purchases a new dwelling with the intention that it will become his main residence. Mr B has acquired the new dwelling, intended to be his main residence, within the 3 years allowed. He may therefore pay the main rates of LTT.

Example 2a

The same facts concerning Mr B apply as in example 2. However, on 1 June 2021 Mr B acquires an interest in a new dwelling he intends to be his main residence. He does not sell the dwelling he acquired on 1 December 2020. Mr B is not entitled to pay the main rates of LTT on the acquisition of the dwelling acquired on 1 June 2021. The rules relating to the purchase of intermediate transactions will not apply as another dwelling intended to be a main residence was acquired during the period between the sale of the former main residence, and the acquisition now being made (the acquisition of the ‘second’ main residence).

Example 3

Mr C and Mr D acquire a new main residence. They have been in a civil partnership from 1 May 2010. Mr C had acquired his main residence (as sole owner) on 1 July 2008. Mr D had acquired his main residence (as sole owner) on 1 August 2007. Since 1 March 2009, Mr C and Mr D have lived in the dwelling owned by Mr C (Mr D has rented the dwelling he owns to tenants). On 1 September 2020 Mr C sells his home (and retains no interest in it). On the same day a new dwelling is acquired by Mr C and Mr D as joint tenants. The transaction is liable to the main rates of LTT, despite Mr D owning a second dwelling, because the former main residence was owned by Mr D’s civil partner and at the time of the disposal Mr C and Mr D were living together.

Example 3a

The facts concerning Mr C and Mr D are the same except they are not in a civil partnership. On the acquisition of the new dwelling the higher rates will apply (assuming that it costs more than £40,000 and all other relevant conditions apply) because Mr D has not replaced a main residence and owns another dwelling.

Example 3b

The facts concerning Mr C and Mr D are the same as in 3a. However, before the purchase of the new main residence jointly, Mr C re-mortgages the existing main residence owned by him. It is decided that Mr D will become co-mortgagee for 50% of the mortgage outstanding and Mr D therefore also becomes owner of the dwelling as tenant in common with Mr C. The dwelling has a market value of £250,000 and the outstanding mortgage is £100,000. As there is an assumption/release of debt, Mr D is deemed to have acquired a major interest in the dwelling costing £50,000 (so he owns a 20% interest in the dwelling). As he already owns a dwelling, the higher rates apply to this transaction and the exemption for interests in the same main residence do not apply. Had Mr C and Mr D been in a civil partnership, the exemption would have applied as Mr D would be deemed to have an interest in the dwelling both before (due to the civil partnership) and after the transaction, and before and after that transaction, the dwelling is the buyers only or main residence.

Example 4a

Mr and Mrs E sold their main residence on 1 March 2015 as they were going abroad to work, they choose to rent a home whilst overseas. They also own a buy to let property. On 1 September 2018 they return to Wales and on 20 November 2018 they buy a dwelling that is to be their new main residence. The higher residential rates will not apply to this transaction as the effective date of the transaction occurs on or before 26 November 2018.

Example 4b

The facts are the same as in example 4a above. However, a week before the anticipated completion date (20 November 2018) the sellers ask if the contract can be varied so that the completion date becomes 5 December 2018. Mr and Mrs E agree. As the effective date of the transaction occurs on 5 December 2018 the higher residential rates will apply to the transaction.

LTTA/8120 Sale of former main residence after buying new main residence

Please refer to LTTA/8090 when reading this guidance.

Where a taxpayer has bought their new only or main residence (‘main residence’) before they sell their main residence, or the dwelling deemed to be their old main residence, where the conditions are met, the acquisition may become a replacement of a main residence. The taxpayer will have paid the higher rates of LTT when buying the new main residence as they held, or were deemed to hold, an interest in another dwelling (the old main residence) on the effective date of the transaction in which they acquired the new main residence.

If the conditions are met, the taxpayer will be able to either amend the return under section 41 TCMA 2016 (if within the time limits permitted – 12 months from the filing date) or make a claim for repayment under section 63 TCMA 2016. The deadline for making such a claim is 4 years from the day after the filing date for the return to which the claim relates. The repayment will be the difference between the amount of LTT paid and the amount of LTT that would have been payable, had main rates applied to the transaction and not the higher rates.

The conditions are:

  • on the effective date of the acquisition, the dwelling is intended to be the taxpayer’s only or main residence (‘main residence’)
  • during the 3 years beginning on the day after the effective date of the acquisition of the new main residence, the buyer or their spouse, or former spouse, or civil partner or former civil partner at the time, disposes of a major interest in a former main residence
  • that they hold no interest in that former main residence following the disposal (unless a taxpayer’s spouse or civil partner retains a major interest in that property and they are no longer living with the taxpayer).

Example

Mr and Mrs A own their main residence and no other property. They buy a second property that they intend to be their new main residence on 1 April 2020. They have not yet sold their current main residence and therefore pay the higher rates of LTT on the acquisition. On 1 December 2021 they sell the current main residence. As they have sold the former main residence within 3 years of the date of the acquisition of the new main residence (they had until 1 April 2023 (3 years from the day after the effective date for the acquisition of the new main residence) to dispose of the dwelling), they are able to claim a repayment of the higher rates of LTT. They have until 2 May 2024 to make the claim (4 years from the day after the filing date for the return for the new main residence).

LTTA/8130 Rules where former only or main residence sold within filing period for acquisition of new only or main residence

(paragraph 23 Schedule 5)

Where, at the end of the day of the effective date of the transaction, a taxpayer has interests in more than one dwelling they must self-assess the tax payable, subject to the replacement of a main residence rules, by using the higher rates of LTT. Special rules apply where the taxpayer owns a main residence and the new dwelling acquired is intended to be their new main residence.

In cases where the taxpayer would be entitled to amend their return or claim a repayment of the higher rates of LTT because they have sold their former main residence the taxpayer is entitled to self-assess the transaction acquiring the new main residence to main rates of LTT when the following conditions are met:

  • the sale of the former main residence occurs within the filing period for the acquisition of the new main residence, and
  • the return for that acquisition has not yet been made.

The return for the acquisition of the new main residence must be made after the sale of the old main residence has occurred. The return cannot be made in anticipation of the subsequent sale (even where that is to occur on the same day as the return is filed, unless the sale transaction has competed).

Example 1

Miss A is purchasing a new main residence. She is also selling her old main residence. However, the completion date for the 2 transactions is not the same. The purchase of the new main residence is occurring on 1 April 2020 and the sale of the old main residence is occurring on 20 April 2020. Miss A sends her return in for the purchase of her new main residence on 21 April 2020 and self-assesses the transaction using the main rates of LTT. This is possible because she has sent in the return after the sale of her former main residence.

Example 2

Mr B’s facts are the same as for Miss A above. However, he sends his return in for the new main residence on 7 April 2020. As the sale of the old property has not completed Mr B must self-assess the acquisition of the new main residence at the higher rates and amend his return after the sale of the former main residence (or within the time permitted for a claim to be made).

LTTA/8140 Intermediate transactions

(paragraphs 9, 18 and 24 Schedule 5)

The LTT higher rates include rules that cover situations where the taxpayer sells a main residence, purchases a dwelling that is not intended to be a main residence on the effective date (or in any case before), they then subsequently purchase a main residence to which the taxpayer wishes to apply the main residence exclusions. The transaction effecting the acquisition of a dwelling acquired between the sale of the old main residence and the acquisition of the new main residence is called an ‘intermediate transaction’.

Without these rules, it may be possible for the taxpayer to structure their purchases in such a manner that they can purchase 2 dwellings, neither of which is subject to the higher rates. The LTT intermediate transaction rules have been designed to ensure that the tax payable on the intermediate transaction must be reappraised in certain circumstances.  

An intermediate transaction is a higher rates residential property transaction if the intermediate transaction rules apply in relation to any one of the buyers.

The intermediate transaction rules apply where:

  • the buyer in an intermediate transaction replaces their main residence in another transaction within 3 years of the disposal of their previous only or main residence, and
  • that intermediate transaction occurs during the interim period.

The interim period commences on the effective date of the transaction, effecting the disposal of the previous only or main residence, and ends on the effective date of a transaction to which the replacement of main residence exemption applies, or to which paragraph 3(6) of Schedule 4ZA to the Finance Act 2003 applies (SDLT), or paragraph 2(2) of Schedule 2A to the Land and Buildings Transaction Tax (Scotland) Act 2013 applies.

Example 1

Mr and Mrs A sell their main residence on 1 April 2020. They intend to downsize and also wish to purchase a buy-to-let dwelling to provide an income in retirement. They purchase the buy-to-let dwelling, which is not intended to be their main residence on the same day. They own no other interests in dwellings. They do not need to pay the higher rates on the acquisition of the property as, at the end of 1 April 2020, they only have an interest in one dwelling. The fundamental conditions for paying the higher rates are therefore absent. They move in to their daughter’s house while they continue to search for their main residence. On 1 September 2021 they buy their replacement only or main residence. They do not pay the higher rates, as whilst they own a second dwelling (the buy-to-let which is now an intermediate transaction), the conditions for the replacement of the only or main residence have been met. However, the intermediate transaction rules apply as during the interim period 1 April 2020 to 1 September 2021 they have acquired a dwelling to which the higher rates were not applied. Mr and Mrs A must therefore reassess the purchase of the interim property and send in a further return by 2 October 2021 (30 days after the day after the effective date of the acquisition of the new main residence, i.e. the same date as the filing date for that transaction). Payment of the additional tax, calculated on the rates and bands in force at date of the interim transaction’s effective date, must be made by the same date.

Example 2

The facts for Mr and Mrs B are the same as for Mr and Mrs A. However, the date on which the replacement only or main residence acquired is 1 July 2023. As the only or main residence has not been replaced within the time period to which the exclusion from the higher rates apply they will need to pay the higher rates on the dwelling acquired on 1 July 2023. However, they will not, need to reassess the tax payable on the intermediate transaction.

LTTA/8150 Interest acquired in the same main residence

(paragraphs 7 and 16 Schedule 5)

This exclusion from the LTT higher rates rules applies where the main subject matter of the transaction is a major interest in a dwelling in respect of which the buyer or their spouse or civil partner already held a different main interest, and which immediately before and after the effective date of the transaction, that dwelling is the buyer’s only or main residence.

The exclusion from the higher rates rules for these transactions, is designed to ensure that the higher rates are not applied where one interest in the only or main residence is held and another or a different interest is acquired. The rule will include cases where the taxpayer surrenders and is re-granted a lease on their main residence (and owns other dwellings as well) and where the taxpayer acquires a lease extension granted as a new but separate reversionary lease.

The rules will also ensure that higher rates are not paid when an interest in a dwelling is transferred between individuals for example where the property is owned jointly and one co-owner transfers the whole of their interest to the other, who resides in the dwelling as their main residence.

The rules will not cover cases where a person acquires a different or additional interest in a dwelling that is not a main residence. Therefore if a person who owns a number of dwellings extends the lease on a dwelling that is not their main residence, they will, assuming the chargeable consideration is £40,000 or greater, be liable to the LTT higher rates on that land transaction.

Example 1

Ms A, Mr B and Ms C are three friends who purchased a property together as tenants in common, each with an equal share in the dwelling. The dwelling cost £350,000 with a mortgage of £300,000 (interest only). All 3 individuals occupy the dwelling as their only or main residence. 6 years after the acquisition Mr B decides that he wants to move in with his partner. He does not wish to retain his interest in the property and it is decided that Ms A and Ms C will buy his undivided interest in the dwelling. Ms A does not hold any interest in any other dwelling, however, Ms C has a 50% interest in a buy to let dwelling owned with her brother.

The property is now worth £480,000 and it is agreed that Ms A and Ms C will arrange for Mr B to be paid £160,000 for his share. The arrangement reached is that Ms A and Ms C will assume his debt in relation to the mortgage (£100,000) and pay him £60,000 cash. As the total consideration given for the land transaction is £160,000 Ms A and Ms B must make a return including this figure as the consideration given.

The higher rates will not apply to this land transaction despite one of the buyers, Ms C, owning an interest in another dwelling. This is because the dwelling in which she is acquiring her additional interest is her main residence.

Example 2

Mr and Mrs D recently married. They live in the dwelling owned (before the marriage) by Mrs D. Separately Mr D owns, with his brother a dwelling used as a holiday home. 6 months after the marriage they agree that Mr D will use his savings to pay down the mortgage on Mrs D’s dwelling and thereby acquire a 50% interest in the dwelling. To achieve this transaction they will need to re-mortgage. The dwelling has an open market value of £250,000 and a mortgage of £200,000. Mr A uses £50,000 of his savings to pay down the outstanding mortgage. A new mortgage in the joint names of Mr and Mrs D is taken out and the H M Land Registry is updated to show Mr and Mrs D as joint tenants. The consideration for the transaction is therefore the £50,000 cash used to satisfy or release his wife from part of her mortgage debt and Mr D’s assumption of 50% of the mortgage debt (after the pay down) - £75,000 – a total of £125,000. Mr D already owns a dwelling and, but for this rule, the LTT higher rates would apply. The main rates of LTT will apply to the transaction subject to the zero rate threshold.

LTTA/8160 Spouses and civil partners buying alone

(paragraph 25 Schedule 5)

Where a person is:

  • married or in a civil partnership
  • the couple are living together on the date of the acquisition, and
  • only one of the spouses or civil partners is acquiring the major interest either solely or with other individuals

then both spouses and civil partners are deemed to be buyers. Their or their minor child’s interests in any dwellings need to be considered to establish if the transaction is a higher rates residential property transaction.

Taxpayers who are married or in a civil partnership are treated as living together unless they are separated:

  • under an order of a court of competent jurisdiction (for example the family court in Wales or such similar court in another country)
  • by a deed of separation, or
  • in fact and the circumstances are such that the separation is likely to be permanent.

Example

Mr and Mrs A are married and not separated. They live in the dwelling Mrs A acquired before they married. It is owned solely in her name (and has a market value of £150,000). Mr A decides to acquire a buy-to-let property in his name solely. The acquisition of the buy-to-let property is liable to the higher rates of LTT as Mrs A’s interests in dwellings are considered for the purposes of establishing the liability to higher rates, as though she was also a buyer, or as though Mr A owned an interest in their main residence. As she already owns a major interest in a dwelling worth £40,000 or more the higher rates apply to the acquisition of the buy-to-let property.

LTTA/8170 Property adjustment on divorce, dissolution of civil partnership etc.

(paragraphs 26 Schedule 5)

The application of the LTT higher rates, for individuals, is dependent upon identifying the interests that the individual holds or is deemed to hold in other dwellings. These rules provide an exclusion for certain interests which are retained as a result of a buyer owning an interest (as a tenant in common) with their former spouse or civil partner due to an order under:

  • section 24(1)(b) of the Matrimonial Causes Act 1973
  • section 17(1)(a)(ii) of the Matrimonial and Family Proceedings Act 1984
  • paragraph 7(1)(b) of Schedule 5 to the Civil Partnership Act 2004, or
  • paragraph 9 of Schedule 7 to the Civil Partnership Act 2004.

This means that where an individual retains an interest in a dwelling as a result of 1 of the above 4 provisions (and that dwelling is not the individual’s only or main residence), that interest is not considered when establishing if the individual owns interests in additional dwellings.

The exclusion does not apply where a couple has separated, unless the interest is retained due to one of the above 4 court orders and the court order must be in place prior to the purchase of the new dwelling.

If a court order is granted under one of the 4 provisions above after the individual has purchased a new property, it is not possible to claim a repayment for any higher rates tax paid on the purchase.

Example

Mr A, following the collapse of his marriage to Mrs A, is required under an order under section 24(1)(b) of the Matrimonial Causes Act 1973 to retain his interest in the former matrimonial home, until the date that the youngest child of the marriage reaches the age of 21 or completes their tertiary education. At that point the property is to be marketed for sale and the proceeds split according to the terms of the court order. Without these rules Mr A, when buying his new main residence (or a replacement main residence), would be treated as owning the interest in the former matrimonial home and potentially be liable to the LTT higher rates on that purchase. He has no option but to retain the interest due to the court order and because he does not fulfil the conditions for the replacement of main residence exemption he would otherwise be liable to the higher rates. The rules though allow him to retain the interest in the former matrimonial home and be treated as not having an interest in that dwelling.

LTTA/8180 Settlements and Bare Trusts

(paragraphs 27, 28, 29, 30 and 31 Schedule 5)

LTTA/8190 Bare trusts and settlements – beneficiary deemed to be buyer or owner

(paragraphs 27 and 28 Schedule 5)

The treatment of purchases of additional residential dwellings, for the purposes of the higher rates provisions, differs depending on whether the trustee is the trustee of a bare trust, a trust entitling the beneficiary to occupy the dwelling for life or income earned in respect of the dwelling or any other trust (a ‘settlement’).

Where:

  • a major interest in a dwelling, including the grant of a lease, or more than one dwelling is acquired
  • by a trustee, or a number of trustees, of a settlement, alone or with others who are not trustees, and
  • under the terms of the settlement the beneficiary (or beneficiaries) are entitled to occupy the dwelling for life or are entitled to the income earned;

then in order to establish the liability to the higher rates, it is necessary to look at the beneficiaries to establish, if they had acquired the dwelling rather than the trust, they would be liable to the LTT higher rates. If the beneficiaries (or any one of them) would have been liable to pay the LTT higher rates then the trustee(s) must file their return including a self assessment calculated using the LTT higher rates.

The beneficiary’s interest in dwellings also needs to be considered where there is a grant of a lease and the buyer is acting as a trustee of a bare trust. This is to ensure that leases cannot be granted to bare trustees and the usual rules relating to such a grant are not exploited to avoid the LTT higher rates applying.

Similarly, where:

  • a person is the beneficiary under a settlement
  • a major interest in a dwelling forms part of the trust property, and
  • under the terms of the settlement the beneficiary (or beneficiaries) are entitled to occupy the dwelling for life or are entitled to the income earned

or where:

  • a person is a beneficiary under a bare trust and a term of years absolute (that is a lease whether acquired by grant or assignment), in a dwelling forms part of the trust property;

then in order to establish the liability to the higher rates it is necessary to look at the beneficiaries to establish if they held the interest in the dwelling rather than the trust. Therefore, for the purposes of establishing the ownership, or disposal of, interests held a person will be treated as owning, or disposing of interests in dwellings held or disposed by the trust.

Example 1

A (Trustees) Ltd are the trustees of a settlement which is an interest in possession trust (i.e. the beneficiaries are entitled to the trust income as it arises). There is a sole beneficiary. The trustee buys a dwelling, costing £200,000. Whether the trustee needs to pay the LTT higher rates will depend upon the property owned by the beneficiary. The trustee will need to establish whether the beneficiary would, if they were acquiring the dwelling in their own right, be liable to the LTT higher rates. If the beneficiary would, perhaps because they own another interest in a dwelling that is worth £40,000 or more on the effective date of the acquisition by the trustees of the trust property, or the beneficiary is a child whose parents own dwellings, or the spouse of the beneficiary owns a dwelling, or the beneficiary is a company, for example. In the event that the beneficiary would not be liable to the LTT higher rates, had they acquired the dwelling in their own right then the trustees likewise will not need to pay the LTT higher rates. In the event that there was more than one beneficiary then each beneficiary would need to be considered separately, and, as for joint buyers, if the higher rates conditions are met in relation to one they are treated as being met in relation to all.

Example 2

B (Trustees) Ltd are the trustees of a settlement which is a discretionary trust. There is a sole beneficiary. The trustee buys a dwelling costing £200,000. As the trust is a discretionary trust the individual property interests of the beneficiary is not relevant to the application of the LTT higher rates to the transaction. The trustee is required to pay the higher rates of LTT on their acquisition.

Example 3

C (Trustees) Ltd is acting as a bare trustee for Mr D. The trustee buys, on Mr D’s instructions a freehold dwelling costing £200,000. The rules relating to bare trustees will apply; the rules apply as if the interest were vested in, and the acts of the trustee were the acts of the person for whom the trustee is appointed. If the interest in the dwelling was acquired by the grant of lease then the usual trust rules relating to bare trustees would not apply. Instead, the LTT higher rates will still apply to the transaction because the usual rule that a bare trustee is treated as the buyer in relation to the grant of a lease are turned off for the purposes of establishing liability to the LTT higher rates.

LTTA/8200 Tax liability of individuals who are trustees of settlement

(paragraph 31 Schedule 5)

Where:

  • a major interest in a dwelling, or more than one dwelling is acquired
  • by a trustee, or a number of trustees, of a settlement, alone or with others who are not trustees
  • that trustee is an individual (or all the trustees are individuals), and
  • under the terms of the settlement the beneficiary (or beneficiaries) are not entitled to occupy the dwelling for life or are not entitled to the income earned

then the trustee is treated as the beneficial owner and, despite them being an individual (or individuals) their acquisition, holding or disposal of a major interest in a dwelling is treated in the same manner as if that trustee was not an individual.

That is to say, if the conditions set out above are met, the acquisition of any major interest in a dwelling will be liable to LTT higher rates in so far as it meets the fundamental requirements for the higher rates to apply (consideration given is £40,000 or more) and none of the exclusions apply (for example the interest is subject to a lease with an unexpired term of greater than 21 years).

LTTA/8210 Acquisition by parent for minor child

(paragraph 30 Schedule 5)

Where a parent acquires a dwelling for a minor child then the parent, or any spouse or civil partner of the parent, (including step-parents), is to be treated as the buyer, or as holding or disposing of the interest rather than the child. The connection rule to the spouse or civil partner of the child is only relevant if the married couple or civil partners are living together.

However, it should be noted that in any case both natural parents will be considered to be the parent of the child so, whether living together or not, the natural parents are treated as acquiring, owning or disposing of the interest in the minor child’s dwelling even where the dwelling is being funded by just one of the parents.

Example 1

Mr and Mrs A, the natural parents of AA, a minor child, decide to purchase a dwelling in the town that AA is to go to university. Mr and Mrs A own their family home. It is decided that the new dwelling is to be owned beneficially by AA rather than by their parents. Despite the beneficial interest in the dwelling being acquired in AA’s name (with the legal interest held through a bare trust in the parents’ names), the acquisition is liable to the LTT higher rates. Until AA turns eighteen Mr and Mrs A will be treated as holding the major interest in the dwelling. Had the dwelling been acquired in the same manner but after AA had turned 18 then the higher rates would not apply as money to acquire the dwelling had, effectively, been gifted to AA.

Example 2

Mr B and Ms C are unmarried partners and are the natural parents of BC, a minor child. Mr B and Ms C live in the dwelling owned entirely in Ms C’s name (current market value £200,000), and Mr B does not own any other interests in dwellings. Their child is also to attend university. Mr B decides that he will use part of an inheritance to purchase a dwelling for BC (to be beneficially owned by BC and legally owned by Mr B). Whilst Mr B and Ms C are not married and the acquisition is being effected by Mr B alone, the transaction will be liable to the LTT higher rates as Ms C is also BC’s parent and she does own an interest in a dwelling. Conversely, had Mr B purchased the legal and beneficial interest for himself, the acquisition would not have been liable to the higher rates as whilst Ms C owns a major interest which is Mr B’s main residence, it is not taken into account as he and Ms C are not married.

LTTA/8220 Acquisition by Court appointed deputy for minor child

(paragraph 30 Schedule 5)

A special rule is provided so that the normal rule that a parent of the child is deemed to buy, hold or dispose of a dwelling does not apply where the buyer or owner is a deputy appointed by a court under section 16 of the Mental Capacity Act 2005, or a person appointed under a similar provision in a country outside Wales and England. The dwelling must have been acquired in the child’s name or on behalf of the child.

To qualify for the exclusion from the LTT higher rates the interest does not need to be acquired, held or disposed of solely by a court appointed deputy (or deputies), but one of the persons acquiring the dwelling must be a court appointed deputy. Such other owners could, for example, include the child’s parents or other relatives or guardians.

Where a dwelling is acquired, held or disposed of by a deputy, that dwelling is not treated for the purposes of the LTT higher rates as if it were the child’s parents’ interest. Rather, exceptionally, the interest is treated as though, for the purposes of establishing the rates applicable to the transaction, or the interests in dwellings owned by the child’s parents, as though it is acquired or owned by the child.

It is therefore possible for the parents of a child who has a court appointed deputy, to own an interest in a dwelling and for the child to acquire an interest in a dwelling through their deputy and for the child’s purchase not to be liable to the LTT higher rates. However, a second acquisition by the deputy on behalf of the child would potentially be liable to the LTT higher rates.

Essentially, the child who has a court appointed deputy is treated, for the purposes of the LTT higher rates as though they are an adult. Their land transactions and their ownership of dwellings for the purposes of the LTT higher rates, are disconnected from their parent’s acquisitions and ownership of interests in dwellings.

Example

AA is a minor child who, as a result of medical negligence, has been awarded a substantial sum of money. B, a solicitor, has been appointed by the court under section 16 of the Mental Capacity Act 2005 to be AA’s deputy. AA is living with their parents, in a home owned by those parents. Following the award AA’s parents make representations to B that their current home is not suitable for AA’s future needs. B agrees and approves the purchase of a more suitable home using some of the award. The dwelling is acquired by B in AA’s name. AA’s parents do not wish to sell their current home. The LTT higher rates will not apply. However, if B were subsequently, with the first dwelling still being owned, to acquire a second dwelling on AA’s behalf (perhaps to provide for capital growth and income) then that acquisition would be liable to the higher rates of LTT as AA, through their deputy, already owns an interest in a dwelling.

LTTA/8230 Major interests in dwellings inherited

(paragraph 34 Schedule 5)

Where a taxpayer inherits an interest in a dwelling and that interest represents greater than 50% of the value of the interest, then the interest will be treated as owned by the taxpayer from the date of the inheritance. A taxpayer will be treated as owning a beneficial share of more than 50% if:

  • they are, individually, entitled to an interest that is greater than 50%
  • the taxpayer and their spouse or civil partner taken together own, as tenants in common, an interest of greater than 50%, or
  • the dwelling is owned by no more than 3 joint tenants and 2 of those joint tenants are the taxpayer and their spouse or civil partner.

It should be noted that any interests owned by minor children will be deemed as owned by their parent unless that interest is held as a result of an acquisition made by a court appointed deputy.

Where the inherited interest is of 50% or less (owned by the taxpayer or, where relevant, taken together with interests owned by the taxpayer’s spouse or civil partner), it will not immediately be treated as an interest in another dwelling for the purposes of the higher rates rules. Instead, it will be treated as an interest owned in another dwelling only from 3 years after the date of inheritance. However, if during that 3 year period the taxpayer’s interest in the dwelling changes through:

  • a variation of a disposition
  • acquiring other interests in the dwelling, or
  • marriage or entering into a civil partnership

then if the interest is greater than 50% it will, immediately be treated as a major interest for the purposes of the higher rates legislation.

The date of the inheritance means the date on which the individual acquires the interest and that acquisition is in or towards satisfaction of an entitlement under or in relation to the will, or the intestacy, of a deceased person.

Special rules in relation to the date of inheritance, apply where there has been a variation of a disposition. Where such a variation occurs within 2 years of the person’s death then the date of inheritance is taken to be the date of acquisition in accordance with the variation.

Example 1

Mr AA and Miss BA are the son and daughter of Mrs A. Mrs A, a widow, dies on 1 January 2020. She owns 2 dwellings (of equal value - £200,000 each) which she leaves in equal shares to her 2 children. Probate is granted on 1 April 2020 and the properties are transferred to Mr AA and Miss BA, as tenants in common, at that point. As the 2 dwellings are owned equally neither Mr AA nor Miss BA owns an interest in an inherited dwelling of greater than 50%. In the event that neither owns any other interests in a dwelling that would qualify as a major interest, both could purchase a dwelling that would not be liable to the LTT higher rates during the 3 years following the date of inheritance.

Example 2

The facts are the same as in example 1 above. However, following the grant of probate and the acquisition of the dwellings as tenants in common, Mr AA and Miss BA make a variation to the will so that the two dwellings are inherited individually, so that Mr AA owns one entirely and Miss BA owns the other. The variation occurs on the 1 October 2020. From that date Mr AA is treated as owning 100% of the interest in his property (and Miss BA as owning 100% of the interest in her property). If either acquired a major interest in another dwelling after that date then the higher rates would apply, despite the fact that the dwelling was inherited. If the new dwelling was acquired in the period when the inherited dwellings were owned as tenants in common and before 1 October 2020 then the higher rates would not apply (assuming that each does not own a major interest in another dwelling). The acquisition of a new dwelling on or following 1 October 2020 (and assuming it is not the replacement of an only or main dwelling) would be liable to the LTT higher rates.

LTTA/8240 Alternative finance arrangements

(paragraph 33 Schedule 5)

Where the dwelling is the subject of an alternative property finance arrangement, in relation to the ‘first transaction’ the person rather than the financial institution, is to be treated as the buyer for the purposes of establishing if the transaction is liable to the LTT higher rates. In the absence of this rule, every transaction entered into by the financial institution in relation to alternative property finance arrangements, would be liable to the higher rates as it would be the financial institution which would be considered to establish if it was liable to the higher rates, and not the person who has entered the arrangement with the financial institution.

Example 1

Mr and Mrs A wish to acquire a dwelling and also wish to effect that purchase through a cash deposit and a funding that meets the alternative property finance arrangements rules. The financial institution will need to establish whether either Mr or Mrs A own a major interest in another dwelling. In this example, neither Mr nor Mrs A own a major interest in any other dwelling. The main rates of LTT therefore need to be used to calculate the LTT liability as ‘the person’ in the alternative property finance arrangement does not own another major interest.

Example 2

Mr and Mrs B also wish to acquire a dwelling and also wish to effect that purchase through a cash deposit and a funding that meets the alternative property finance arrangements rules. However, they wish to retain their current dwelling (and current home) to rent out following the acquisition of the new dwelling. As Mr and Mrs B would be liable to the higher rates had they purchased the home through a conventional mortgage product, so the ‘first transaction’ in the alternative property finance arrangement will also be liable to the LTT higher rates.

LTTA/8250 Partnerships – interests acquired by a partner

(paragraph 32 Schedule 5)

Note: ‘Partner‘ and ‘partnership’ in this section refer to business partners and not to spouses, civil partners or those co-habiting (where the spouse or civil partner is also a business partner then that will be made clear in the examples).

Where a partner (who is an individual) in a partnership acquires a major interest in a dwelling either solely or jointly with other individuals and the dwelling is not being acquired for the purposes of the partnership, special rules apply. An example of this would be where the partner acquires their only or main residence, or where they acquire a buy-to-let property.

That rule is that any major interests held by or on behalf of the partnership for the purposes of the trade are not treated as held by or on behalf of the partner. Therefore, if a partnership that trades as a property developer or a business that owns major interests in dwellings for the purpose of their trade, (for example a farming business) those interests are not treated as held by the individual partners.

However, where a property is owned through a partnership and that property is used in a property letting business, the major interests in that dwelling are not used in a trade and the partner’s interest in that property will be treated as a major interest owned by the partner.

It should also be remembered that the property acquired by a partnership is treated as acquired by the partners (see LTTA 5080). Therefore, when a partnership acquires a dwelling (for any purpose), it will be important to establish whether that purchase is liable to pay the LTT higher rates. In order to establish this, it will be important know whether any of the partners own major interests in dwellings for the purposes of establishing liability to LTT higher rates for the partnership acquisition.

Example 1

Partnership Y consists of 4 partners who are individuals. The partners are entitled to equal income profit shares. They operate a property development and redevelopment trade. The partnership currently owns 4 dwellings that it is redeveloping for resale. Each dwelling has a value of £200,000. Partner A is buying her main residence (a first time buyer purchase). She is unmarried and not in a civil partnership, and owns no other interests in other dwellings. Despite the fact that, through the partnership she owns 4 major interests each worth £50,000, she will not be liable to LTT higher rates on the purchase of their main residence as the special rules relating to partners apply.

Example 2

The facts for partnership W are the same as for partnership Y above. However, one of the 4 dwellings it owns is let on assured shorthold tenancy agreements. As the dwelling is not held for the purposes of the trade (but rather is held for a property letting business, even if incidental to the trade), partner A will be treated as owning a major interest in another dwelling when she purchases her main residence. As such the LTT higher rates of LTT will apply to the acquisition of that dwelling. If Partner A was replacing her only or main residence, if she meets the requirements in, she would not be liable to LTT higher rates on the transaction.

Example 3

Partnership U is a newly formed partnership of 3 individuals. It will trade as a property developer and redeveloper. Its first purchase of stock is a flat costing £200,000. None of the partners own a major interest in a dwelling. The acquisition is liable to the main rates of LTT.  A year later, that dwelling is sold and a new dwelling is acquired (this time for £105,000). In the year between the purchase of the original dwelling and the acquisition of the new dwelling, Partner B has also acquired, solely, a dwelling to use as his only or main residence (market value £150,000). This time the acquisition will be liable to the higher rates of LTT. This is because at the date of acquisition of the new partnership dwelling, one of the individuals purchasing the dwelling through the partnership, holds an interest in another dwelling that has a market value of £40,000 or more.

The rule in relation to partnerships therefore applies to allow partners not to take partnership trading assets (dwellings) into account for what they hold when making a purchase, not for partnership purposes. It does not, however, operate in the reverse, namely; a partner’s interests in dwellings are relevant when establishing if a purchase made for the partnership’s trade is liable to the LTT higher rates.

LTTA/8260 Major interest is subject to a lease

(paragraphs 3, 13 and 21 Schedule 5)

If the major interest acquired is subject to a lease, this can have an impact as to whether the transaction will be liable to the higher rates of LTT. A transaction will not be treated as a higher rates residential property transaction if, at the end of the effective date of the transaction the following conditions are met:

  • the interest purchased was subject to a lease
  • the main subject matter of the transaction is reversionary on that lease
  • the lease has an unexpired term of more than 21 years, and
  • the lease is not held by a person connected with the buyer.

A person is connected to the buyer if they meet the conditions set out in Section 1122 of the Corporation Tax Act 2010.

The effect of the property being subject to a lease at the end of the day of the effective date of the transaction, is the same for an individual (or individuals) buying a single dwelling, or a number of dwellings in a single transaction, or where the buyer, or one of the buyers, is not an individual.

Example 1

Mr A owns a number of investment dwellings and his own home. He buys the freehold of a dwelling that is subject to a lease with an unexpired term of 30 years. The lease is held by Mrs Y, a person unconnected to Mr A. He pays £50,000 for the freehold interest. Whilst the chargeable consideration given is more than £40,000, he is not liable to pay the higher rates of LTT as the major interest acquired meets the conditions listed above.

Example 2

Mrs B owns her home jointly with her husband. It has a market value of £300,000. Mrs B’s adult daughter, Miss B, has purchased a long lease on a house that she uses as her main residence. The lease has an unexpired term of 60 years. A year later the freehold becomes available for purchase. Miss B cannot afford to buy it. Mrs B agrees to purchase it for £45,000. As Mrs B already owns a major interest in a dwelling that has a market value of £40,000 or greater she will need to pay the higher rates of LTT on the freehold interest now acquired, as although the property acquired by Mrs B is subject to a lease, the lease is vested in a connected person, namely Miss B.

Example 3

C Ltd operates a home reversion business, buying properties from individuals, and granting a lease on that property to those individuals (and making a lump sum payment) in return for rent and, when the lease terminates on the death of the individuals, ownership of the property. Mrs W (a widowed pensioner aged 70) enters into a home reversion arrangement with C Ltd. In return for a lifetime lease to occupy the property at a rent of £600 per month and £100,000, she sells her home to C Ltd (the dwelling has a market value of £200,000). On the same date as the sale is completed, Mrs W is granted a lease for 25 years to be extended on the same terms in the event that Mrs W lives beyond that point, and that the lease is surrendered in the event that she dies before that point. C Ltd, by granting the lease to Mrs W, an unconnected person, meets the conditions and is therefore not liable to pay the LTT higher rates.