Reclaims for Stamp Duty in Various Situations

Chapter Summary:
We discuss different scenarios where reclaiming overpaid Stamp Duty Land Tax (SDLT) may be warranted, focusing on cases involving non-habitable properties and unclaimed Multiple Dwellings Relief (MDR).

Key Points

  • Non-Habitable Properties: If a property isn’t fit to live in at purchase, it might qualify for lower SDLT rates meant for non-residential properties.
  • MDR Claims: Those who purchased multiple dwellings before June 1, 2024, and didn’t claim MDR can still file until April 30, 2025, to potentially reduce their SDLT burden.

Main Principles Understanding the specific conditions that allow for SDLT reclaims is crucial for ensuring that property buyers do not overpay tax. This includes recognising the eligibility for different reliefs and the correct property classifications at the time of the transaction.

Overpayment Relief and Timing for Stamp Duty Reclaims

(Overview: Process of Reclaiming SDLT>Reclaims for Stamp Duty in Various Situations)

Depending on the circumstance, you have either one year or four years to make a reclaim.

Stamp Duty Land Tax (SDLT) Overpayment Relief is a provision in the UK tax system that allows taxpayers to reclaim any SDLT they’ve overpaid due to mistakes or incorrect filings. For claims eligible for overpayment relief, there is a four-year deadline. However, claims for specific advertised stamp duty reliefs, such as mixed-use relief, must be submitted within 12 months of the transaction’s effective date. 

When Can You Claim Overpayment Relief?

Overpayment Relief can be claimed in situations where SDLT has been overpaid due to:

  • An error in the SDLT return where the tax paid was calculated incorrectly.
  • A misunderstanding or mistake about the application of the law to the facts of the transaction.
  • A change in the interpretation of the law after the transaction has completed.
  • New information coming to light that was not known at the time of the transaction, which if known, would have reduced the SDLT liability.

Conditions for a Claim for Overpayment Relief

To make a successful claim for Overpayment Relief, several conditions must be met:

  1. Mistake or Error

Principle: The foundation of a claim must rest on an actual error or a misunderstanding of how SDLT laws applied to the transaction in question.

Examples:

  • Misinterpretation of Property Type: If SDLT was calculated on the basis that the property was residential when it actually qualified as non-residential, this misunderstanding could substantiate a claim.
  • Miscalculated Stamp Duty Example: If SDLT was incorrectly calculated without considering exemptions such as First-Time Buyers’ Relief or Charitable Organization Property Purchase Relief, which were overlooked at the time of the transaction.

Applying the Principle: It is crucial to clearly demonstrate that the error was based on a genuine misunderstanding of the law, supported by legal precedents or changes in law interpretation that occurred after the transaction.

  1. No Deliberate Action

Principle: The overpayment must not stem from any intentional underpayment or fraudulent misrepresentation of the transaction details.

Examples:

  • Intentional Misreporting: If a taxpayer underreports the purchase price to reduce SDLT liabilities, such actions disqualify them from later claiming overpayment relief for other aspects of the SDLT calculation.

Applying the Principle: Ensure all transaction representations are truthful and in good faith. If discrepancies arise from honest mistakes rather than deliberate actions, the claim remains valid.

  1. Original Return Compliance

Principle: The initial SDLT return must have been completed following the legal standards in force at the time of the transaction.

Examples:

  • Timely Filing: Submitting the SDLT return within the deadline and in accordance with the format and disclosures required at the time.
  • Accurate Disclosure: Providing complete and accurate details about the property and the transaction without any intentional omissions.

Applying the Principle: Maintain meticulous records of the transaction and the SDLT return submission, including evidence that all relevant facts were disclosed as understood at the time.

  1. Documentation

Principle: Comprehensive and concrete documentation must support the claim, underpinning the basis of the recalculated SDLT and the justification for the claim.

Examples:

  • Recalculations: Detailed breakdowns showing the correct SDLT amount with explanations for each part of the calculation.
  • Legal Opinions and Advice: Documentation from legal advisors or tax professionals that supports the claim’s basis, particularly if it involves complex interpretations of SDLT laws.
  • Correspondence: Any communications with HMRC or advisors at the time of the original SDLT filing that might illustrate the context of any mistakes.

Applying the Principle: Compile a robust dossier of documentation that not only supports the recalculated figures but also aligns with legal interpretations, relevant guidance from HMRC at the time, and any subsequent changes that clarify the applicable SDLT regulations.

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Time Limits for a Claim for Overpayment Relief. The time limits for making a claim for Overpayment Relief are specific and must be strictly adhered to:

  • Four Years from the Filing Date: A claim for Overpayment Relief must be made within four years from the date on which the SDLT return was filed. This is the statutory limitation period for claims relating to tax overpayments.
  • Four Years from the Effective Date of Transaction: If no SDLT return was required (because it was believed that no tax was due), the claim must be made within four years from the effective date of the transaction.
  • Twelve Months for Unclaimed Reliefs: If a stamp duty relief was not claimed at the time of purchase, such as Multiple Dwellings Relief, the time limit to make a claim is 12 months from the effective date of the transaction. This has been upheld in cases like MRC v Daniel Ridgway [2024] UKUT 00036.

 

Property Non-Habitable At Time of Purchase

(Overview: Process of Reclaiming SDLT>Reclaims for Stamp Duty in Various Situations)

Section Summary: When buying a property that isn’t fit to live in, you might pay less Stamp Duty Land Tax (SDLT) if it’s classified correctly as non-residential.

Key Points:

  • Properties lacking essential living facilities might be misclassified for SDLT.
  • Misclassification often arises from assuming the property is residential.
  • Evidence like surveyor reports can support claims for SDLT reclassification.

Main Principles: The main principle is that properties not suitable for immediate habitation should not be taxed as residential properties, potentially qualifying for lower SDLT rates.

Note: Refer to the section ‘Reclaiming SDLT Due to Property Condition’ for detailed information on this topic. 

Understanding HMRC’s Treatment of “Uninhabitable” Residential Properties

HMRC’s Definition of Non-Fit for Use Properties

Extent of Damage: HMRC defines a property as unfit for use if the level of damage or deterioration is such that conventional methods of repair, replacement, or modernization are insufficient to restore its habitability.

Scenarios where a property is deemed unsuitable for use include:

  • Situations where repair efforts are unsafe due to high asbestos levels, which would require dismantling the property to mitigate.
  • Presence of significant radioactive contamination.
  • A high likelihood of structural collapse, such as walls caving in.
  • Existence of hazards severe enough to prompt a local authority to issue a prohibition notice that restricts the property’s use.

HMRC’s guidance document SDLTM00385 outlines these criteria, emphasising that a property is considered unfit when typical restoration efforts are inadequate to address its extensive damage or deterioration.

Case-by-case Basis: Determining whether a property is uninhabitable is assessed on a factual basis, implying that each property is considered individually, and this status is expected to apply to only a small minority of buildings.

HMRC’s Operational Practice on SDLT Reclaims

  • Reclaim Process: Despite the stringent guidelines, HMRC processes thousands of claims concerning the condition of the property. They operate on a ‘pay now, check later’ basis, which means claims that are procedurally correct are paid out initially.
  • Enquiry Window: HMRC have a nine-month period during which they can initiate an enquiry to investigate the validity of any claim. This period allows HMRC to retrospectively check the details of the claim.
  • Low Enquiry Rates: Statistically, HMRC raises very few enquiries compared to the number of reclaims paid. 

Key Takeaway

  • Discrepancy in Practice vs. Guidance: While HMRC’s guidance suggests a strict interpretation of what constitutes an uninhabitable property, the practical application of processing claims often sees a more lenient initial acceptance of claims based on property condition. 
  • Importance for Claimants: It is crucial that claims regarding the condition of property are factually accurate and supported by robust arguments that demonstrate lack of habitability, in order to stand up to scrutiny throughout the nine-month inquiry period.

Reason for Reclaim: Assessing Habitability for Stamp Duty

When buying a property, one of the primary concerns is whether the property is habitable. The habitability of a property directly affects how it should be classified for Stamp Duty Land Tax (SDLT) purposes. If a property isn’t fit to live in at the time of purchase, it may be incorrectly assessed for SDLT.

The Role of the Housing Health and Safety Rating System (HHSRS)

  • The HHSRS is a helpful rating system used to assess risk factors in a home that could affect the health and safety of occupants.
  • Under HHSRS, properties are evaluated on various hazards. Those that pose serious risks to health or safety are classified as category one risks.
  • If a property has any category one hazards, it argues strongly that the property should not be considered habitable at the time of purchase.

Category One Risks Explained Category one risks are severe hazards that pose an immediate threat to a person’s health and safety. Here are examples of issues that might be classified as category one risks:

  • Structural Collapse and Falling Elements: This includes risks from parts of the building that might fall or fail, potentially causing injury.
  • Damp and Mould Growth: Excessive dampness and mould can lead to respiratory issues and other health problems, making the living conditions unsafe.
  • Unsafe Wiring or Electrical Hazards: Faulty wiring or poorly maintained electrical systems that pose a high risk of shock or fire.
  • Lack of Security due to Poor Building Condition: Inadequate security measures, like broken locks or windows, which make the property susceptible to unlawful entry.
  • Fire and Smoke Hazards: Lack of proper fire escapes, alarms, or unsafe conditions that increase the risk of fire.
  • Cold and Hot Environments: Extreme temperatures inside a property due to inadequate heating or ventilation systems can be harmful.
  • Falling Hazards on Stairs, Floors, and Paths: This includes any structural or maintenance issues that could cause trips and falls.

Implications for SDLT

  • A property that has one or more category one hazards may not be legally habitable and thus could be considered non-residential for SDLT purposes.
  • Classifying a property as non-residential might qualify it for lower SDLT rates, potentially reducing the amount of taxes the buyer has to pay significantly.


HMRC Guidance on Property Habitability (SDLTM00385)

Key Statement:

  • HMRC’s guidance, effective since 19 March 2016 and still applicable, notes that a property may be deemed unfit for use if there are hazards that could lead a local authority to issue a prohibition notice.

Local Authority Role and the HHSRS System:

  • Local authorities assess residential property risks using the Housing Health and Safety Rating System (HHSRS).
  • They possess the authority to issue prohibition notices, declaring properties uninhabitable based on identified risks.

Clarification of Guidance:

  • HMRC’s guidelines do not require an actual prohibition notice to be in place.
  • The guideline specifies that the property should be in a condition where a prohibition notice could be issued due to its state.

Assessment Process:

  • Evaluating a property’s condition, especially at the time of the transaction, should ideally use the HHSRS framework.
  • This approach ensures a thorough confirmation of a property’s habitability in line with HMRC’s criteria.

Circumstances Leading to Incorrect Assessment of SDLT

Role of Conveyancing Solicitors When buying a property, conveyancing solicitors advise on various legal aspects, including the assessment of Stamp Duty Land Tax (SDLT). 

Risk-Averse Nature of Solicitors

  • Conservative Advice: Conveyancing solicitors are naturally very cautious. They are trained to avoid risks that could potentially lead to legal complications or accusations of misconduct. Their primary concern is to provide safe, sound advice to protect both themselves and their clients from legal liabilities.
  • Fear of Promoting Tax Avoidance: Solicitors are particularly careful not to appear as if they are encouraging tax avoidance. This concern can lead them to recommend a more conservative route in terms of SDLT assessment. If there is any ambiguity about whether a property is residential or non-residential, they are likely to err on the side of assessing it as residential to avoid potential accusations of facilitating tax avoidance.

Impact of SDLT Being Self-Assessed

  • SDLT Self-assessment: SDLT is self-assessed, meaning the buyer, guided by their solicitor, determines how much tax should be paid based on their understanding of the property’s status. This self-assessment model places a significant responsibility on the buyer and their legal advisors to accurately determine the correct tax category.
  • Duty to Advise Accurately: Because solicitors are liable for providing incorrect advice, they tend to adopt a more conservative position when advising on SDLT. This duty-bound approach means they may suggest classifying a property as residential for SDLT purposes if they believe it could conceivably be considered as such, even if there are valid arguments for a non-residential classification.

Consequences of Conservative SDLT Assessment

  • Potential Overpayment: This cautious approach can lead to situations where buyers pay higher SDLT than necessary because the property was capable of being classified as non-residential due to its condition at the time of purchase. For example, if a property is uninhabitable as per the HHSRS guidance or lacks essential facilities like a functional kitchen or bathroom, it might be considered as non-residential for stamp duty purposes. However, the solicitor’s conservative guidance might lead to it being assessed as residential.
  • Correct Assessment of Property: Properties should be accurately assessed for Stamp Duty Land Tax (SDLT) purposes to ensure compliance and fairness in taxation. If this correct assessment leads to a reduction in SDLT liability due to applied non-residential SDLT rates, then it has benefits to the purchaser, but the primary focus should always be on the accuracy of the SDLT assessment.

Supporting Documentation for Reclaim

  • Surveyor Reports: These are helpful as they provide an official assessment of the property’s condition. A detailed surveyor’s report can highlight specific areas that compromise the property’s habitability, such as severe dampness, unsafe roofing, or lack of security due to compromised doors and windows.
  • Photographic Evidence: Photographs are powerful tools that visually document the state of the property at the time of purchase. They can effectively support claims regarding non-habitability.
  • Expert Testimonies: Statements from building inspectors or engineers can also reinforce the argument, providing professional opinions on the property’s condition.

Process of Reclaiming SDLT

  • Demonstration of Non-Habitability: Successfully reclaiming SDLT requires the buyer to demonstrate convincingly that the property was non-residential due to its condition at the time of the SDLT assessment. This involves detailing the deficiencies that prevent the property from being habitable.
  • Submission of Evidence: The buyer must submit all relevant documents and evidence to HMRC to support the claim for SDLT reclassification. This submission should be thorough and well-organised to facilitate a clear understanding of the property’s condition.
  • Procedural Correctness: Since Stamp Duty Land Tax (SDLT) is self-assessed, if a reclaim request is properly formulated and supported by the correct documents, HMRC will process the payment. The condition of the property itself justifies the basis for the reclaim.
  • Legal and Tax Advice: Engaging with legal and tax professionals who specialise in property and SDLT issues can greatly enhance the chances of a successful claim. Outcome of a Successful Reclaim If the claim is accepted, the buyer may be entitled to a refund of the overpaid SDLT, adjusted to the rates applicable to non-residential properties.  

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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.