Specific Transaction Scenarios
(Common SDLT Misconceptions and Misunderstandings)

Misconception: No SDLT Required When Transferring Property from Personal Name to Limited Company

(Common SDLT Misconceptions and Misunderstandings>Specific Transaction Scenarios)

➤ Transferring a buy-to-let property from personal ownership to a limited company incurs SDLT, with a 3% surcharge on the total value, contrary to the belief that no SDLT is required for such transfers.

There’s a common belief that transferring a buy-to-let property valued at £250,000 from an individual’s name into a limited company incurs no Stamp Duty Land Tax (SDLT) liability. This misconception often stems from the misunderstanding of SDLT rules regarding property transfers and corporate structures.

The Reality

Moving a buy-to-let property into a limited company is treated as a disposal for tax purposes by HM Revenue & Customs (HMRC), thus triggering Stamp Duty Land Tax (SDLT) obligations similar to a standard property sale. This occurs because the transfer denotes a shift in ownership from an individual to a distinct legal person (the company), necessitating the payment of SDLT on the property’s market value, regardless of whether the same individual owns both the property and the company.

How SDLT is Calculated

For a buy-to-let property worth £250,000 being transferred into a limited company, the SDLT calculation would be as follows, assuming it’s an additional property and thus attracting a 3% surcharge:

  • Residential Rates:
    • Up to £250,000 = 0%
    • However, because it’s an additional property, a 3% surcharge applies across the board.
  • SDLT Due:
    • 3% of £250,000 (since the entire value is under the first threshold) = £7,500.

This calculation demonstrates that despite the initial belief of no tax due, the company is liable to pay £7,500 in SDLT for the transfer.

Conclusion

The transfer of a buy-to-let property worth £250,000 from an individual to a limited company is not exempt from SDLT. Contrary to the common misconception, such transactions are subject to SDLT, with a significant amount due, primarily due to the additional property surcharge. 

Misconception: VAT is Excluded from SDLT Calculations

(Common SDLT Misconceptions and Misunderstandings>Specific Transaction Scenarios)

➤ When buying property or land, SDLT calculations must include VAT, meaning SDLT is applied to the total cost including VAT, which can increase the overall SDLT payable.

Some people think that when you’re buying property or land, the VAT you pay isn’t part of the calculation for SDLT.

The Reality
In reality, SDLT calculations must include VAT. This means that the total amount on which SDLT is calculated isn’t just the contract price (the agreed price for the property or land) but also includes the VAT charged on this transaction. VAT is a tax on the consumption of goods and services in the UK and is typically set at a rate of 20%. 

When you buy a property or land that is subject to VAT, this tax becomes part of the total cost. Consequently, SDLT, which is a tax on the purchase of properties over a certain value, is applied to the entire sum, VAT included.

Key Points and Examples

  1. SDLT is Payable on VAT: When calculating SDLT, the total amount includes the VAT payable on the transaction. This is a key point because it increases the base amount on which SDLT is calculated, thereby increasing the total SDLT payable.
  2. Example of SDLT Calculation with VAT: Suppose you’re buying a property for £500,000, and this transaction is subject to VAT at the standard rate of 20%. The VAT would be £100,000, making the total transaction value £600,000. SDLT calculations would then be based on this £600,000, not just the initial £500,000. 

Understanding that VAT is included in SDLT calculations helps buyers prepare financially for property purchases 

Misconception: SDLT Not Applicable on Debt Assumption

(Common SDLT Misconceptions and Misunderstandings>Specific Transaction Scenarios)

➤ Assuming debt in a property transaction counts as valuable consideration for SDLT, meaning transactions involving debt assumption are subject to SDLT even without direct cash exchanges.

A common misunderstanding is that acquiring a property through the assumption of existing debt, without any exchange of cash, exempts the transaction from Stamp Duty Land Tax (SDLT). This notion can lead to unanticipated tax liabilities.

The Reality

Debt Assumption Counts as Valuable Consideration

In SDLT terms, taking on a property’s debt is considered a form of valuable consideration. This means the assumed mortgage or any financial liabilities connected to the property are factored into the SDLT calculation.

Calculating SDLT with Debt Assumption

Basis for Calculation: SDLT is determined by the total value of the transaction, which encompasses both any actual purchase price and the value of the debt assumed.

Example Scenario 1: An investor acquires a property at no upfront cost but assumes existing mortgage debt of £400,000. The SDLT is calculated on this £400,000 debt assumption, regardless of the absence of a cash payment.

Example Scenario 2: An investor aims to purchase a property valued at £500,000, contributing £100,000 in cash and assuming a mortgage debt of £400,000. The total consideration for SDLT purposes would be £500,000, comprising both the cash payment and the debt assumption.

Key Points

  • Total Consideration: SDLT calculations include all forms of consideration, including both cash payments and debt assumptions.
  • No Cash Transaction Necessary: Transactions involving debt assumption are subject to SDLT even without direct cash exchanges.
  • Valuing the Debt: The assumed debt amount is integral to determining the SDLT due, using the standard rates in effect at the time of the transaction.

 

Misconception. No SDLT on Divorce Property Transfers

(Common SDLT Misconceptions and Misunderstandings>Specific Transaction Scenarios)

➤ Property transfers between spouses or civil partners during a divorce or separation are not automatically exempt from SDLT; exemptions depend on compliance with court orders, highlighting the importance of legal arrangements in determining SDLT liabilities.

A widespread belief exists that transferring property between spouses or civil partners during a divorce or separation process incurs no Stamp Duty Land Tax (SDLT). 

The Reality

The Importance of Court Orders The truth is more nuanced, as SDLT exemptions for property transfers in the context of divorce or separation are not guaranteed. The exemption relies on whether the property transfer is executed in accordance with a court order. Without such an order, the transfer might attract SDLT, depending on the specifics of the transaction.

Understanding SDLT Exemptions in Divorce

  • Court Orders and Legal Agreements: The exemption from SDLT for property transfers between divorcing spouses or civil partners primarily applies when the transfer is executed under the authority of a court order. This condition is important for qualifying for an SDLT exemption.
  • The Role of Consideration: The concept of ‘consideration’ plays a significant role in determining SDLT liability. SDLT may be due if there is any form of monetary exchange or if one party assumes debt as part of the property transfer, except when such arrangements are made under a court order.
  • Assumption of Debt: The transfer of a property share that includes the assumption of the other party’s mortgage debt is not considered a consideration that triggers SDLT, provided the transfer is conducted under a court order or a legal agreement. In the absence of such legal frameworks, assuming mortgage debt could be viewed as consideration, potentially making the transfer subject to SDLT.

Key Points to Remember

  • Exemptions Are Not Automatic: It’s important to understand that SDLT exemptions for property transfers during divorce or separation are not automatic and depend on compliance with specific legal conditions.
  • The Significance of Court Orders: The presence of a court order or a formal separation agreement plays a pivotal role in determining the applicability of SDLT to property transfers during a divorce or separation.
  • Consideration and SDLT Liability: Any transfer involving monetary exchange or debt assumption outside the framework of a court order may incur SDLT charges.

Misconception. Gifted Properties are Exempt from SDLT

(Common SDLT Misconceptions and Misunderstandings>Specific Transaction Scenarios)

➤ Gifted properties are not automatically exempt from SDLT; if the recipient assumes any debt or there’s any other form of chargeable consideration involved, SDLT may be due.

Many people believe that if a property is gifted, that is, transferred without any payment being exchanged — it automatically qualifies for an exemption from Stamp Duty Land Tax (SDLT). This misconception can lead to unexpected tax liabilities for the recipient.

The Reality

The truth is that SDLT may still be due on gifted properties if there is any ‘chargeable consideration’ involved. Chargeable consideration includes not just money exchanged but also the assumption of debt or other forms of non-monetary value transfer. Therefore, if a property is transferred to someone and they take on the outstanding mortgage or any debt associated with the property, SDLT could be applicable.

How SDLT Applies to Gifted Properties

  • Assumption of Debt: If the recipient of the gift takes over an existing mortgage or any debt tied to the property, the value of that debt is considered chargeable consideration for SDLT purposes.
  • Other Considerations: SDLT may also apply if there are other forms of consideration involved in the transfer, such as goods or services exchanged.

Key Points

  • No Automatic Exemption: Simply because a property is labelled as a “gift” doesn’t exempt it from SDLT.
  • Consideration Beyond Cash: Any assumption of debt or non-monetary exchange can constitute chargeable consideration, triggering SDLT liability.
  • Valuation of Consideration: The amount of SDLT due is based on the value of the consideration, not the property’s market value.

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This Article Written By Nick Garner
Founder Stamp Duty Advice Bureau
Author of Stamp Duty Land Tax Guide
For Property Investors.