Even Granny Smith gets a ‘slice of the action’, writes Satvi Vepa (Pinsent Masons).
The transactions in land rules were replaced and extended in FA 2016 (which took effect for disposals of land on or after 5 July 2016). There has been some commentary on the new rules and their slightly controversial application in certain sectors. What is clear is that the rules are (in certain cases, bizarrely) very wide reaching.
The purpose of the new rules was set out in the 2016 Budget to be ‘to ensure offshore structures cannot be used to avoid UK tax on profits that are generated from developing UK property’ and to level the playing field between UK and offshore developers. The government’s focus seemed to be to target those larger property developers (whether corporates or individuals) who have the means to implement cross-border structures to avoid UK income or corporation tax.
Although it is understood that the rules are intended to catch such avoidance arrangements, in actual fact they continue to apply to a range of scenarios that have no link to cross-border structures at all. This is particularly the case for what HMRC calls ‘slice of the action’ schemes where following the Court of Appeal case of Page v Lowther [1983] STC 799, HMRC considers (questionably since, despite HMRC’s interpretation, this was not the ratio of the case) that the transaction in land rules will apply to deferred consideration received in the form of a share of the profit made by a developer (see HMRC’s Business Income Manual at BIM60645 onwards).
Take the following example.
An individual, Granny Smith, enters into a contract to sell a portion of her garden (attaching to her main home) to a development company in order for that development company to build flats. Granny Smith can structure the consideration in two ways:
Option 1: Granny Smith receives initial consideration of say, £100,000 and deferred consideration of say £100,000 due two years after the sale.
Option 2: Granny Smith receives initial consideration of £100,000 and deferred consideration of £100,000 on the sale of four of the developed flats expected to be two years after the original sale.
The gain made on the initial consideration in both options (and indeed, in the case of option 2, any gain ‘fairly attributable’ to a period before the intention to develop the land is formed) will be a capital payment that should qualify for the principal private residence exemption (PPR) to capital gains tax.
However, despite being the same amount and de facto payable in the same timeframe, the deferred consideration would attract differing treatment: in option 1, it should be a capital payment, also benefiting from PPR; whereas in option 2, HMRC considers it to be subject to income taxation, as it will be profit from a property trade – even though Granny Smith’s activity has none of the badges of trade. If Granny Smith structured the consideration in option 2 so that she gets her extra £100,000 on the earlier of (1) two years post-sale or (2) when four flats are sold, she is within the CGT regime as per HMRC’s guidance.
The difference here between the old rules and the new rules is that, whereas under the old rules there was scope to argue capital treatment in option 2 (albeit a Marren v Ingles right could arise for the deferred consideration which would not benefit from PPR), now capital treatment will only apply where the amount due bears no relation to the development.
The odd thing here is that HMRC is once again using an extension of existing rules to enact what it has always treated as being the case – even though this results in an arbitrary distinction the basis of which was always questionable.
Home >Articles > Transactions in land: extending the boundaries
Transactions in land: extending the boundaries
Even Granny Smith gets a ‘slice of the action’, writes Satvi Vepa (Pinsent Masons).
The transactions in land rules were replaced and extended in FA 2016 (which took effect for disposals of land on or after 5 July 2016). There has been some commentary on the new rules and their slightly controversial application in certain sectors. What is clear is that the rules are (in certain cases, bizarrely) very wide reaching.
The purpose of the new rules was set out in the 2016 Budget to be ‘to ensure offshore structures cannot be used to avoid UK tax on profits that are generated from developing UK property’ and to level the playing field between UK and offshore developers. The government’s focus seemed to be to target those larger property developers (whether corporates or individuals) who have the means to implement cross-border structures to avoid UK income or corporation tax.
Although it is understood that the rules are intended to catch such avoidance arrangements, in actual fact they continue to apply to a range of scenarios that have no link to cross-border structures at all. This is particularly the case for what HMRC calls ‘slice of the action’ schemes where following the Court of Appeal case of Page v Lowther [1983] STC 799, HMRC considers (questionably since, despite HMRC’s interpretation, this was not the ratio of the case) that the transaction in land rules will apply to deferred consideration received in the form of a share of the profit made by a developer (see HMRC’s Business Income Manual at BIM60645 onwards).
Take the following example.
An individual, Granny Smith, enters into a contract to sell a portion of her garden (attaching to her main home) to a development company in order for that development company to build flats. Granny Smith can structure the consideration in two ways:
Option 1: Granny Smith receives initial consideration of say, £100,000 and deferred consideration of say £100,000 due two years after the sale.
Option 2: Granny Smith receives initial consideration of £100,000 and deferred consideration of £100,000 on the sale of four of the developed flats expected to be two years after the original sale.
The gain made on the initial consideration in both options (and indeed, in the case of option 2, any gain ‘fairly attributable’ to a period before the intention to develop the land is formed) will be a capital payment that should qualify for the principal private residence exemption (PPR) to capital gains tax.
However, despite being the same amount and de facto payable in the same timeframe, the deferred consideration would attract differing treatment: in option 1, it should be a capital payment, also benefiting from PPR; whereas in option 2, HMRC considers it to be subject to income taxation, as it will be profit from a property trade – even though Granny Smith’s activity has none of the badges of trade. If Granny Smith structured the consideration in option 2 so that she gets her extra £100,000 on the earlier of (1) two years post-sale or (2) when four flats are sold, she is within the CGT regime as per HMRC’s guidance.
The difference here between the old rules and the new rules is that, whereas under the old rules there was scope to argue capital treatment in option 2 (albeit a Marren v Ingles right could arise for the deferred consideration which would not benefit from PPR), now capital treatment will only apply where the amount due bears no relation to the development.
The odd thing here is that HMRC is once again using an extension of existing rules to enact what it has always treated as being the case – even though this results in an arbitrary distinction the basis of which was always questionable.
