Category: HMRC

Incorporating a letting business

Should I transfer my existing properties in a new company ?

Three taxes are considered when considering the question of incorporating a letting business:

  1. Corporation/Income Tax
  2. Capital Gains Tax ; and
  3. Stamp Duty Land Tax (SDLT)
  4. Inheritance tax

1. Corporation/Income Tax

  • Corporation tax rates are lower than income tax rates
  • Continued tax relief on mortgage interest
  • Flexibility in timing of profit extraction.

2. Capital gains tax (CGT)

Transfers between connected parties are deemed at market value (MV).`Incorporation relief ` is available but it will only be available in case of a `business`. Keeping in view case law as in Lord Fisher and Ramsay, it will be a difficult threshold to cross for landlords with one or two BTL properties.

Incorporation relief

No CGT payable if transfer is for shares in the business.

Eligibility conditions:

  • Rental activity is a business. Main case law here is `Ramsay Vs HMRC` to determine whether the activity is really a business. HMRC guidance CG65715 states the activity should be carried for around 20 hours a week personally.

    Please note HMRC no longer provides non-statutory clearances as conformation that a particular property letting is sufficient to qualify as a business. 

  • Consideration in new issued shares only – not a credit in director’s loan account.
  • Transferred as a going concern i.e. profitable business.

Please note annual exemption allowance, currently £11,700 not available to companies

3. SDLT – Usually SDLT is not payable when consideration is nil. But FA 2003 Sec 53 also see SDLTM30220 inserted a special provision to ensure SDLT is payable on Market Value, irrespective of consideration actually paid. 

Future purchase – In case buyer is a company it pays 3% surcharge (threshold £40k) in all cases, whether or not company owns another property or not. Thus landlords cannot avoid the 3% surcharge by buying properties via company.

Also, be aware of 15% SDLT rate for companies but relief maybe avaliable for rental business.

SDLT Calculator

4. Inheritance tax : Property will be a chargeable asset for both individual or owned by a company, as Business Property relief not available see IHT Act 1984 sec 105 (3)

Practical considerations:

  • Refinance costs
  • Increase in interest rates – as bank usually charge more to limited company landlords.
  • Huge SDLT bill on transfer of assets.
  • Other fees – Lawyer, accountant, valuer etc.

Lastly, there is no guarantee HMRC will not change the rules for finance costs relief for companies in the future.

Conclusion:

I think the sensible approach will be to leave the existing portfolio as it is but to buy new properties in a limited company if the aim is to expand the portfolio rather than profit extraction from the business. This will require another article in greater detail.

 

First written in May 2018; updated March 2023

Yearend tax planning for employed (PAYE) individuals

  • Moving assets in name of spouse in lower tax bracket.
  • Pension contributions 1 – for self, see our detailed blog on this topic.
  • Pension for children or non-working spouse pension. Government top ups contribution of £2,880 by £720 to gross up to £3,600.
  • ISAs – Self, children or life time.
  • Claim employment expenses like subscription, working from home £6 minimum (a lot stricter now).
  • Marriage Allowance.
  • Investments in VCT, SEIS or EIS. These are risky investments so beware.
  • Giving to charity via Gift Aid – among a married couple if one is basic and other higher rate payer. One with higher rate should make the donation. Further tax planning scenarios in case income is between £50k-£60k (child benefit) and £100k to £125k (personal allowance reduction).
  • Check your National Insurance record if gaps. See our detailed blog.
  • Premium Bonds
  • Pay off your loans. What you save is what you earn. Start with the one which charges highest interest rate usually credit cards.
  • Use Capital Gains – Annual Exemption limit.
  • Inheritance tax – give away £3k per annum.
  • Buying assets for capital appreciation in children’s name (Bare Trust)as Parental settlement rules are not applicable for CGT. See blogs from Aberdeen and Step Journal.

Slowdown, any action in haste will most likely be regretted.

Plan for next tax year.

Notes:

  1. Pension contribution lowers Income tax not National insurance contributions; unless it is via a Employer’s salary sacrifice scheme.

How to change name, address, telephone number or email address with HMRC

HMRC calls these `designatory details`

For Agent see Link Agent Update 105

For Client see the same link, scroll down a bit and read,
Updating your client’s designatory details
re PAYE – guidance says to call HMRC but this seems incorrect, as changing address on Companies House website automatically updates PAYE records on HMRC website.

How to compute and maximize Double Taxation Relief aka Foreign Tax Credit Relief on overseas income and gains

How to calculate Double Taxation Relief (DTR). Excel example where tax payer has more than one source of overseas income.

There is a relief available called Foreign Tax Credit Relief (DTR) basic guidance given in Helpsheet 263

DTR given is lower of:
a – Overseas tax suffered ; or
b – UK tax on overseas income.

a – Overseas tax figure is taken from Tax Deducted certificates client provides, but it is restricted by the ‘treaty rate’ as per DTAA which is 15% (in case of India). This means in case a client earns £5,000 and tax is deducted off him at 20% say £1,000, he can only put the figure as £750 (15%) for overseas tax suffered.

He needs to approach Indian Tax authorities to get a refund of remaining tax.

b – UK tax on overseas income.

I have enumerated the steps to calculate this figure from ICAEW textbook below.

Step 1: Calculate the tax (before DTR) including all sources of income. Say £A

Step 2: Calculate tax but exclude overseas income, Say £B

Step 3: Deduct £A – £B. This is UK tax on overseas income.

Once DTR is determined we need to put it in box 2 of form SA 106 to ensure correct tax liability is calculated.

Example: Tax year 2018-19

Miss Amrita Sher-Gill lives in the UK and earns employment income of £30,000 and has interest income of £5,000 from India on which £1,000 tax has been taken off @ 20%.

Step 1:  Tax £4,430
Step 2:  Tax £3,630

Step 3: Tax on overseas income £4,430-£3,630 = £800

Compare:
a – Overseas tax taken off £1,000 but maximum allowed 15% : £5,000 x 15% = £750.
b – UK tax on overseas income £800.

DTR lower of a and b that is £750.

Calculation of DTR if overseas income is from more than one source

Please note in case taxpayer has more than one source of income say interest income and rental income, DTR is calculated on a source by source basis, to maximize the relief. see section Complex Cases — Practical Considerations in HS 263.

dtr-example-more-than-one-source-of-incomeDownload

More examples in ICAEW Tax text book Chapter 15 (simple examples) and Tolley Tax Computations Chapter 8 (complex examples).

Points to remember to maximize DTR relief and minimize tax bill

  • Overseas income – In case of more than one source of overseas income , to maximise FTCR, it will likely be beneficial to include the item which incurred the highest rate of foreign tax as also attracting the highest UK rates.
  • Overseas gains – Annual exemption allowance and basic rate band should be set off first against UK gains.

Deduction relief

Lastly, there is another method claiming relief by directly deducting the tax suffered from Income earned and pay tax on the remaining in the UK.

Using the above example Amrita can just add £5000 minus £1000 = £4000 as interest income to her tax return and pay tax on it. See example 5 in Help sheet 263.

 Note:

Tax payer is free to choose whichever method is most beneficial to them.

 Which exchange rate should be used to convert the income from foreign currency income to GBP?

If the sums involved are material, take the exchange rate for the day on which the interest is credited in client’s bank account, if sums are not material then go for average rates.

HMRC publishes exchange rates, see link

Bonus:
1. Where a claim for foreign tax credit is made for a state whose fiscal year is different from that of the UK, we should apportion the overseas income and the foreign tax to arrive at the amounts falling into the UK reporting year. INTM161220. This will not be applicable for India as it’s fiscal year closely corresponds to UK. Other countries could follow different fiscal year.  Wikipedia has a very good chart illustrating it.

2. Commercial software DTR calculations may not be correct.