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17 August 2016

Using a company to reduce tax on buy-to-let properties

Question:

I own a substantial portfolio of buy-to-let properties jointly with my partner, I am aware of the adverse tax changes affecting the buy-to-let sector and I have heard that if I form a company I will be able to reduce our tax liabilities?

Answer:

You are correct in that the changes announced for loan interest relief, wear and tear allowance and stamp duty will adversely affect the buy-to-let sector especially for personally held property. A company is increasingly becoming a much more attractive place to hold property given that companies pay tax at a flat rate on all their profits – currently 20% but falling to 17% by 2020, and this contrasts against a possible 45% for personally owned property. The difficulty however is getting your properties into the company as this normally triggers stamp duty land tax (SDLT) and capital gains tax (CGT) on the change of ownership.

CGT is the first important tax to consider on incorporating a property business. Once again, because you are connected with the company acquiring your properties, the properties are deemed to transfer at market value even if no consideration passes from the company to you. There is however the opportunity to use a CGT deferral relief on the incorporation as this relief can cover the incorporation of property businesses provided three conditions are satisfied, namely:

  1. All of the assets of the business are transferred to the company
  2. The business is transferred as a going concern
  3. The consideration for the transfer of the assets/business is satisfied by the issue of shares to the vendor

Provided the above conditions are complied with then the gain that would arise on the disposal of the properties at market value to the company is deferred by being ‘rolled over’ into the base cost of the new shares. Another important benefit of this is that the properties are rebased to market value when they transfer into the new company therefore reducing the tax cost of future disposal for the company.

SDLT is the second tax to consider and is charged on the actual consideration passing between buyer and seller and is not normally levied on deemed market value. For this reason, property can be gifted free of debt without an SDLT charge. However an unfortunate exception to this rule is when property is transferred to a connected company where the deemed market value rule is applied. However there is an important exemption. In circumstances such as your own, where property is owned jointly, it may be possible to avoid the SDLT charge on the property transfers to the new company provided that you can demonstrate that you are presently engaged in a property partnership business (as opposed to a co-ownership). There are reliefs for the incorporation of a property partnership however it is important to be able to demonstrate that a partnership actually exists. A partnership would typically be evidenced by:

  1. A set of annual partnership accounts
  2. A partnership tax return being submitted annually
  3. A partnership bank account and any borrowings being in the name of the partners/partnership
  4. A partnership agreement

If a partnership does not exist and you try and create one prior to incorporation then HMRC will seek to deny the valuable stamp duty reliefs with serious adverse tax implications.

Finally, if a partnership exists and you plan to incorporate, you will need the support of your bankers in the switch to a corporate owner.

The advice above is specific to the facts surrounding the questions posed. Neither FPM nor the contributors accept any liability for any direct or indirect loss arising from any reliance placed on replies.
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