Guidance in relation to part 67-75 of the Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Act 2017 in relation to Land Transaction Tax interpretation provisions.

Organisation:
First published:
12 April 2018
Last updated:

LTTA/1010 Meaning of major interest

(section 68)

A major interest in land is:

  • an estate in fee simple absolute (a freehold interest), or
  • a term of years absolute (a leasehold interest)

whether in law or in equity.

For the purposes of the LTT higher rates, paragraph 29 of Schedule 5 clarifies that the transfer of beneficial interests (for example undivided shares) arising under a trust in a residential property will be treated in the same way as a transfer of a major interest, where the seller of the beneficial interest was:

  • immediately prior to the transaction, deemed to own the major interest in the dwelling, and 
  • immediately after the transaction the buyer is deemed to own the major interest.

LTTA/1020 Meaning of subject-matter and main subject-matter

(section 69)

The subject-matter of a transaction means the chargeable interest acquired in the land transaction (the ‘main subject-matter’) including any interest or right appurtenant* or pertaining to it that is acquired with it (relating to the main subject-matter).

* ‘Appurtenant’ means any right or restriction which goes with that property, such as an easement to gain access across adjoining land owned by another, or a covenant i.e. agreement to refrain from an activity for the benefit of the adjoining land.

For example, the transfer of a freehold and the transfer or creation or variation of a related right of way is chargeable as one transaction rather than 2 as the right of way is part of the same subject-matter.

In most cases the transaction will include a single registered title for the property and land. In some cases, a transaction may contain several registered titles for what, is in effect, a single property, made up of a property and its land.

The consequences of selling a property and its land as a single transaction, made up of several registered titles is that there are in effect several chargeable interests that as a general rule would be considered as linked transactions. The WRA would expect the tax treatment to match the treatment that would apply had a single registered title covering the same property and land been the subject of the transaction. Therefore one would not expect a tax advantage to arise from dividing a property and its land into separate titles if those titles form part of a single transaction or series of linked transactions.

LTTA/1030 Meaning of market value

(section 70)

Market value for LTT is determined in the same way as for the purposes of sections 272 to 274 of the Taxation of Chargeable Gains Act 1992.

Where the consideration for a land transaction is satisfied by the transfer of an asset, services or other non-monetary consideration, the market value of that asset etc. will be the price which the asset etc. might reasonably be expected to have cost in the open market. This is the case even where consideration is given.

The market value of an asset etc. does not normally include Value Added Tax (VAT) even if VAT is chargeable on the transfer of the asset etc. This is because market value is based on a hypothetical transaction, not on the actual transaction. However, there are in LTT a number of circumstances where the amount of VAT actually paid, or notionally payable, by the taxpayer on the transaction must be added to the market value established. These rules apply in relation to the calculation of chargeable consideration for:

  • exchanges
  • carrying out of works, and
  • the provision of services.

Where the amount of the chargeable consideration needs to be established using a market valuation it is the buyer’s responsibility to provide it and the WRA will not prepare, or agree before a return is made, valuations for a taxpayer.

The valuation of assets etc. can be a complex matter requiring professional qualifications. In taking reasonable care in filing their tax return, a taxpayer may want to consider obtaining a valuation from a person competent to do so and who has been instructed to provide a valuation for the purpose of the tax legislation. If a tax return contains errors relating to valuation, a failure to instruct an appropriately qualified valuer may be relevant to assessing whether there should be a penalty and the type of penalty. Appropriate evidence of the valuation should be retained. Where the WRA needs to establish a valuation, or wishes to check a taxpayer’s valuation, it will employ a professional valuer.

LTTA/1040 Meaning of effective date of transaction

(section 71)

The effective date of a transaction determines when a liability to LTT arises. It also determines when the filing obligations arise.

The general rule is that, except as otherwise provided, the effective date of a land transaction is when that land transaction is completed.

There are important exceptions to this general rule:

In cases where the taxpayer is entering into a lease that continued after a fixed term or a lease granted for an indefinite term (LTTA/4030) where the return asks the taxpayer to enter the effective date of the transaction, please use the day after the end of the period for which the lease is treated as continuing.

In cases where the taxpayer is entering into a rent reconsideration (LTTA/4090) where the return asks the taxpayer to enter the effective date of the transaction, please use the day after the day of the rent reconsideration.

LTTA/1050 Meaning of residential property

(section 72)

Residential property is defined as:

  • a building, or part of a building, that is used or suitable for use as one or more dwellings, or is in the process of being constructed or adapted for such use
  • land that is or forms part of the garden or grounds of such a building (including any building or structure on such land)
  • an interest in or right over land that subsists, or is to subsist, for the benefit of such a building or such land.

Introduction

For most taxpayers it should be obvious when they are acquiring residential property. For example a building that has been in use as a dwelling up until the point of sale, including the garden or grounds will clearly be residential property. A chargeable transaction is a residential property transaction and subject to the residential property LTT rates and bands where the property transferred consists entirely of an interest that is residential property.

Where the property transferred does not consist entirely of an interest in residential property then the non-residential property LTT rates and bands apply to that transaction. 

In cases where a building contains a dwelling and something else (e.g. a shop with a flat above it), or where the dwelling has land that is not part of the garden or grounds (e.g. a farmhouse with farmland), the treatment will be that the building acquired is either itself a mixture of residential and non-residential property, or is part of a transaction that includes both residential and non-residential property, and therefore the interest is not solely of residential property and the non-residential LTT rates will apply to the transaction.

It is worth noting that, as explained in the higher rates section of the guidance, the acquisition of a non-residential property that includes a dwelling isn’t chargeable to higher residential property LTT rates and bands. However this doesn’t stop the dwelling part of that acquisition being subsequently taken into account as a dwelling when assessing how many dwellings a person holds for the purposes of the higher rates rules.

Is the building a dwelling?

The use (or suitability of use) of the property as a dwelling is to be assessed at the effective date of the transaction. If, at that date, the property is used as a dwelling or is suitable for use as a dwelling, then it is a dwelling. The buyer’s proposed future use of the building does not, of itself, determine the building’s current use or suitability for a different future use.

In considering the use (and suitability for use) of a building, it can be helpful to have regard to the building’s treatment for the purposes of local government finance and its status under the planning laws.

A building will often be subject to Council Tax or Non-Domestic Rates (or in some cases both) depending on whether or not the building is being used or is suitable for use for residential or business purposes. The general assumption is that the actual use of a building will follow the permitted use of the building.

For example, if an entire building is being used at the effective date of the transaction as an office, then it is likely that Non-Domestic Rates (NDR) are being paid and the building is permitted to be used as an office. In the event that the building is being used as an accountant’s office but the building can only properly be used for residential purposes, then the building will still be treated as suitable for use as a dwelling, and the residential rates of LTT will apply.

If, in order to convert an office (or change its use) into a dwelling, appropriate permission from the relevant planning authority is required, then the absence of that permission at the effective date of the transaction would be a strong indicator that property is not suitable for use as a dwelling, even if little physical alteration would be required to make it habitable (for example an office located in a converted townhouse). As such the building would be a non-residential property.

That does not necessarily mean that the existence of appropriate permission, at the effective date of the transaction, to use a non-residential property as a dwelling means that the building is suitable for use as a dwelling. It will still be necessary to consider whether the building is physically suitable for use as a dwelling. If significant construction or adaption of the building would be required to make it suitable for use as a dwelling, then that is an indication that the building would not be suitable for use as a dwelling prior to the carrying out of that work. If, on the other hand, a dwelling house is unoccupied and is instead used temporarily by the seller to store goods (stock) for resale, then, assuming no change of use consent is required to continue to use the building as a dwelling in future, then this will be residential property. During the period that the building was being used as a temporary stock room, it is still subject to Council Tax rather than NDR and is only suitable for use as a dwelling.

Planning permission may not be required to home work or run a business from home, provided that the dwelling house remains a private residence first and business second (or in planning terms, provided that a business does not result in a material change of use of a property so that it is no longer a single dwelling house).

Therefore the fact that a business is carried on from a building does not prevent the building from either being used as a dwelling or suitable for use as a dwelling. For example converting a room into an office does not prevent the building from being residential property if the rest of the property is used as a dwelling or the building is suitable for use as a dwelling, because no permission would be required to continue to use the building as a dwelling. The building will be subject to Council Tax rather than NDR given its primary use is as a dwelling.

However, it should be noted that a building will be a dwelling if it is in the process of being constructed or adapted for use as a dwelling. This is considered further later in this section.

Where a building has been used partly for residential purposes and partly for another purpose, its overall suitability for use as a dwelling will be influenced by the primary use to which the property may be put.

For example a building in use as a bed and breakfast or guest house will be a residential, mixed, or non-residential land transaction based on the facts in each case. The current use of the building, taking into consideration the planning permission requirements if there was to be a change of use to a dwelling, as well as whether the property is subject to Council Tax and/or NDR will be a strong indicator in these types of cases as to the suitable use of the property acquired. Therefore:

  • if Non-Domestic Rates are payable and the rest of the property cannot or should not be used for domestic purposes, then the property is likely be considered to be non-residential
  • if non-domestic rates and council tax are payable on the respective business and residential parts of the house, and permission would be required to convert the entire house into a dwelling house, then the property is likely to be considered to be of mixed use and the non-residential rates will apply
  • if only council tax is paid, perhaps because the provision of bed and breakfast accommodation is secondary to the primary residential use (as would also potentially be the case of a home office) and the house should only be used as a dwelling house, then the property is likely to be considered to be suitable for use as a dwelling and will be residential property.

A property used as part of a furnished holiday letting business will be a residential property whether the property is assessed to Council Tax or NDR, as in most cases the building could be used as a single dwelling house without permission from the relevant local authority.

The legislation identifies certain properties that are to be treated as a dwelling and certain properties which are not to be treated as a dwelling (see the definition of non-residential property below).

Those which are treated as dwellings for LTT purposes are:

  • residential accommodation for school pupils
  • residential accommodation for students (other than halls of residence for students in further or higher education)
  • residential accommodation for members of the armed forces
  • an institution that is the sole or main residence of at least 90 per cent of its residents (and does not fall within any of the descriptions below of buildings not treated as dwellings below).

It should be noted that a dwelling acquired with the intention of letting to students is not residential accommodation for students (other than halls of residence). There must be some characteristic over and above the intended (or already existing) tenants to make a property one that is residential accommodation for students. The planning permissions for such a property will be important. For example, a block of flats may have a planning restriction that means that they may only be let to students.  

Finally a residential property that is no longer habitable as a dwelling, perhaps because it is derelict to such an extent that it is beyond a state of repair, would not be residential property, on the basis that the property is not suitable for use as a dwelling. However there is a clear distinction between a derelict building that is beyond a state of repair and therefore not suitable for use as a dwelling, and a dwelling that is in desperate need of modernisation, renovation or repair before it is habitable. In the latter cases if the building was used as a dwelling previously and permission to use as a dwelling continues to exist at the effective date of the transaction, then it will be a residential property. Whether a property is derelict beyond a state of repair is a question of fact, and should apply to only a small minority of buildings.

The removal of, for example, a bathroom suite or kitchen facilities before sale will not be regarded as making a building unsuitable for use as a dwelling. These are internal fittings and would not constitute infrastructure changes to the dwelling that would mean the building is no longer suitable for use as a dwelling. A new kitchen or bathroom suite could be fitted relatively quickly and cheaply and are common improvements to a dwelling. Likewise substantial repairs to the windows or the roof would also not make the building not suitable for use as a dwelling. Again, if Council Tax is payable on the property that will be indicative of the property being suitable for use as a dwelling.

Construction or adaption for use as a dwelling

It is an objective test as to whether a building is in the process of adaption or construction for use as a dwelling at the effective date. Intention alone would not be sufficient. For example, obtaining planning permission for a building would not necessarily change the status of the building, if work on the property in line with the planning permission had not yet commenced at the effective date. However if adaption or construction had taken place at the effective date, then clearly the planning permission would be a strong indicator of what the building is being adapted for use as (e.g. is the permission to convert or adapt the building to a dwelling, or into a commercial property?).

Residential properties that are in the process of being constructed may be treated as dwellings at the point when walls begin to be constructed upon the foundations. Those walls do not have to be above ground level. Where walls have started to be built at the effective date the land will be residential property if the building being constructed is to be a dwelling.

Where a building includes a number of dwellings (for example, a block of flats), all the dwellings in the building will be treated as being in the process of being constructed when the walls begin to be constructed, not when construction of each individual dwelling is commenced. This principle applies even if the ground floor is intended for non-residential use (for example, where the building consists of a shop with flats above). This will apply where a single, or multiple dwellings are sold. However, where the incomplete building is one that is for mixed use and the whole of the site is sold in a single transaction then the non-residential rates will apply.

This will mean that a bare piece of land sold to a property developer will be non-residential land. If that developer were to sell the land after commencing the build of the properties, and none or some of the properties have reached the point of amounting to the construction of walls, then the transaction will be either one that is a non-residential, or a mixed, property transaction and will need to be assessed using the non-residential rates of LTT. Where all the dwellings being constructed have reached the point where walls are considered to be in the process of being constructed, the transaction will be a residential property transaction and, the taxpayer may make a claim to multiple dwellings relief or opt to have the transaction treated as non-residential in the event that the transaction consists of 6 or more such dwellings. Where the construction work has resulted in some, but not all, of the dwellings being in the process of being constructed then the taxpayer may claim multiple dwellings relief in relation those dwellings and non-residential rates in relation to the rest of the land.

It should be noted that there are special rules for off-plan property acquisitions in relation to whether they are deemed to be an acquisition or holding of a dwelling for the purposes of the higher rates rules.

Garden and grounds

In considering whether the land acquired is residential property, the land must form part of the garden or grounds of a dwelling or subsist for the benefit of the dwelling at the effective date. But the land does not have to be acquired with the dwelling for it to meet these conditions.

However if land is acquired separately from a dwelling and ceases to be part of the garden or grounds of a dwelling or ceases to subsist for the benefit of the dwelling then any subsequent sale and acquisition of that land would need to be accessed separately to determine whether at the effective date the land was still residential property.

For example if a garden of a house is sold by the owners and acquired by a developer, then that acquisition of the land would be a residential property transaction. If the developer decided to build a small warehouse on that land, and subsequently sold the warehouse to a local business, then the 2nd acquisition of the land including the warehouse is a non-residential property transaction as the land being sold no longer forms part of the garden or grounds of a dwelling, nor does it subsist for the benefit of the dwelling.

Whether land forms part of the garden of grounds of a dwelling, (including any building or structure on such garden and grounds) or subsists for the benefit of the dwelling will be a question of fact depending on the individual circumstances of each case. For most dwellings it will be obvious what are the gardens or grounds of that dwelling and those parcels of land that are not. In most cases land attached to a dwelling will be treated as a garden or grounds. The main exception to this will be farm land, which is land that is clearly neither garden or grounds of a farmhouse. Because such land is likely to have been exploited over a period of time using commercial machinery, at the effective date it would be difficult to see how this land could be classed as garden or grounds.

However, land that is not so exploited, will constitute gardens (for example if landscaped, planted or managed as a garden), or ‘grounds’ if not maintained in the manner of a garden. An example of grounds would include a property with stabling for horses used for the seller’s personal use, where the land (not constituting a garden) would amount to grounds, making the whole of the land and buildings sold residential rather than non-residential property.

Buildings on the land must be included when considering whether a property is residential or mixed/non-residential. If those buildings are in the garden and grounds of the dwelling then the use or suitable use of those other buildings is not relevant. For example if a garage within the grounds of a dwelling is converted into an office, then this alone would not prevent the land and the office building from being part of the gardens of the dwelling and therefore it would be residential property. However, if the use of those buildings is strongly indicative of a business use, for example they are subject to Non-Domestic Rates, then the transaction will be subject to the non-residential rates as it will be a mixed transaction.

The fencing off of a part of a garden or grounds does not change the nature of that land unless the owners of the dwelling no longer had rights of use or access to that land.

Land that subsists, or is to subsist, for the benefit of the dwelling is also taken to be part of the dwelling. This applies to an interest in land which is not contiguous with the dwelling and its garden or grounds: for example, a garage sold with the dwelling but that is physically separate from that dwelling. A person purchasing a flat with an allocated parking space, or a house with a garage in a block of garages from the same person will have entered into a residential purchase. However where the land had ceased to subsist for the benefit of the dwelling at the effective date of the transaction then this will not be a residential property transaction. For example a garage that belonged to a dwelling was sold several years ago to a separate buyer. That buyer owned several garages, but none of the dwellings to which the garages used to belong. When the block of garages is sold, this will be a non-residential property transaction.

The acquisition or removal of rights of way and easements will also be the acquisition of residential land if the right subsists for the benefit of a dwelling.  Therefore payments made to acquire or remove a right of way or easement that benefit a building that is used or is suitable for use as a dwelling, will be liable to the residential rates of LTT.

LTTA/1060 Meaning of non-residential property

(section 72)

Non-residential is defined in the negative – it is any land and buildings that is not residential property.

However, the following are confirmed to be the non-residential use of buildings:

  • a home or institution providing residential accommodation for children
  • a hall of residence for students in further or higher education
  • a home or institution providing residential accommodation with personal care for persons in need of personal care by reason of old age, disablement, past or present dependence on alcohol or drugs or past or present mental disorder
  • a hospital or hospice
  • a prison or similar establishment
  • a hotel or similar establishment.

Specific inclusion, as non-residential property, of the above buildings provides clarity for the treatment of the buildings for LTT purposes. In the absence of this specific rule the buildings would, potentially, meet the definition of a dwelling.

LTTA/1070 Meaning of dwelling

(section 73)

A dwelling is a residential property that comprises a single dwelling. What constitutes a dwelling is a question of fact, access to private cooking and bathroom facilities will be important in establishing whether a dwelling is a single dwelling. This will mean that a house of multiple occupancy will not be treated as a number of single dwellings if the property lacks private cooking (e.g. fitted kitchen) and bathroom facilities for all occupants.

LTTA/1080 Meaning of connected persons

(section 74)

A connected person is, broadly, a person where there is between the taxpayer and that other person:

  • for an individual, a familial tie, such as spouses, siblings, ancestors and descendants, and 
  • in relation to companies where a company is able to exercise control over another company (or such control can be exercised), or where an individual is able to exercise control over a company. In both cases that control is to be considered both directly and indirectly.

The LTT definition of connected persons is dependent upon section 1122 of the Corporation Tax Act 2010.This is a complicated area of UK taxation and as the legislation defining who are connected persons, and the guidance related to it, are based on legislation under the authority of the UK government this guidance provides links to the relevant legislation, and to the relevant HMRC guidance. Please note that the WRA cannot guarantee that the links are correct at the date that they are viewed.

Section 1122 Corporation Tax Act 2010 – connected persons

Section 1123 Corporation Tax Act 2010 – connected persons; supplementary

Section 450 Corporation Tax Act 2010 – Control

Section 451 Corporation Tax Act 2010 – rights to be attributed etc.

Section 448 Corporation Tax Act 2010 – Associate

The following HMRC guidance may be helpful in establishing whether persons are connected to each other or whether one company is under the control of another.

Close companies: tests

LTTA/1090 Meaning of child

(section 75)

For the purposes of LTT, ‘child’ means a person under the age of 18.

LTTA/1100 Meaning of consumer price index and retail prices index

(section 75)

For the purposes of LTT:

  • the ‘consumer prices index’ means the all item consumer prices index published by the Statistics Board, and
  • the ‘retail prices index’ means the United Kingdom General Index of Retail Prices published by the Statistics Board.

LTTA/1110 Meaning of enactment

(section 75)

For the purposes of LTT ‘enactment’ means:

  • an Act or a Measure of the National Assembly for Wales
  • an Act of Parliament, and
  • subordinate legislation made under an Act or a Measure of the National Assembly for Wales or an Act of Parliament.

LTTA/1120 Meaning of land

(section 75)

‘Land’ includes:

  • buildings and structures, and
  • land covered by water.

LTT can only be charged on “land in Wales”.

Land in Wales does not include land below the low water mark. It does however include jetties, piers and similar structures where one end is attached to land in Wales. It also includes land underwater above the low water mark, for example lakes and rivers.

A caravan, including static caravans and mobile homes, is generally a movable asset. They are generally not considered to be property or land. If the caravan can be moved easily, without damaging the land, it would fall under the category of ‘fixtures and fittings’ (LTTA/2261).

However, depending on the facts, it may be that LTT would be due in relation to a purchase or lease of the land on which the static caravan sits. If, in buying the static caravan, the taxpayer also enters into a lease of a piece of land for a term of years, or buys the piece of land, those transactions may be subject to LTT. If the right to use the land for the static caravan is agreed through a licence, it is unlikely that this would be subject to LTT.

These considerations also apply to houseboats. If the boat can be easily removed from its moorings, without damaging the land, it is likely that it would not be subject to LTT. If the boat is permanently attached to the land, potentially through another structure, it may be subject to LTT.

LTT may apply to the mooring agreement, as with static caravans and mobile homes, if the agreement is considered a lease, rather than a licence. If the agreement allows the taxpayer exclusive access to a berth for a term of years, this is likely to be a lease. If the boat can be easily moved to another berth, or if the berth can be accessed without prior notice, this is likely to be a licence.

Further guidance on chargeable interests in LTTA/2010.

LTTA/1130 Meaning of registered social landlord

(section 75)

For the purposes of LTT ‘registered social landlord’ means a body registered as a social landlord in a register maintained under section 1(1) of the Housing Act 1996.

LTTA/1140 Meaning of TCMA

(section 75)

‘TCMA’ means the Tax Collection and Management (Wales) Act 2016.

LTTA/1150 Meaning of Wales

(section 75)

‘Wales’ has the meaning given by section 158(1) of the Government of Wales Act 2006.