Can I just move my Buy to Let into a partnership and then incorporate?

If you have a large portfolio (because that could be seen as business) then this might be possible but not if you only have a single property (or if its a small portfolio).

Forming a partnership has been seen as milestone on the route to incorporation, incorporation will mean that Section 24 interest restrictions don’t apply, which can save substantial amounts of tax.

Incorporation Tax Relief

The Ramsey case set out a basis for incorporation tax

EM Ramsay v HMRC [2013] UKUT 0226 (TCC)

Mrs Ramsey carried out the following activities

  1. Mr & Mrs Ramsey personally met potential tenants
  2. Mrs Ramsey check the quarterly electric bills
  3. Mrs Ramsey arranged insurance
  4. Mrs Ramsey arranged and attended to maintenance issues (drains)
  5. Mrs Ramsey and her son maintained the garages and cleared rubbish
  6. Mrs Ramsey dealt with post
  7. Mrs Ramsey dealt with fire regulation issues
  8. Mrs Ramsey arranged for a fence to be erected
  9. Mrs Ramsey created a flower bed
  10. Shrubs were pruned and leaves swept
  11. The parking area was cleared of weeds
  12. The flag stones were bleached
  13. Communal areas were vacuumed
  14. Security checks were carried out
  15. She took rubbish to tip
  16. She cleaned vacant flats
  17. she helped elderly tenants with utilities

This work equated to at least 20 hours per week and Mrs Ramsey had no other employment.

It is because she did the work herself that her property investment was considered a ‘Business’ and eligible for Incorporation Tax Relief.

SDLT

Partnerships have special rules on SDLT relating to incorporation.

The rules on SDLT for Partnerships are in the Finance Act 2003 Schedule 15 and amendments in the Finance Act 2006 Schedule 24.

http://www.legislation.gov.uk/ukpga/2003/14/schedule/15

http://www.legislation.gov.uk/ukpga/2006/25/schedule/24

It is complicated but essentially it comes down to the following formulae

MV x (100 – sum of lower proportions (SLP))%

What this means is that if the land being put into the partnership is effectively retained by the transferor-partner (or persons connected with the transferor) after the transaction, you basically end up with:

MV x (100-100) = £0

So a husband and wife partnership owning 50% each could transfer the property to a company for 50% of the shares each and in theory there would be no SDLT charge.

What’s the problem for small portfolios

Take a look this tax question of the week My VIP Tax Team question of the week: Finance Costs Restriction (cronertaxwise.com)

Two of my clients, a married couple, have jointly held residential investment property. The husband is a higher rate taxpayer and the wife is a basic rate taxpayer and they would like to change the allocation of the property income. They do not want to change their 50/50 capital interest so have decided to form a general partnership to take advantage of exception C within ITA 2007 S836 to the assumption they are beneficially entitled to the income in equal shares. Their property portfolio is mortgaged. As the husband has income from other sources, he has fully utilised relief for all finance costs attributed to him. The wife has cumulative unrelieved finance costs, due to her personal allowance mitigating her tax liability on the property income. Can those unrelieved finance costs be carried forward and relieved against tax liabilities on property income from the partnership?

Alexandra Fielding – Croner 4/5/22

There are two issues you raise which need to be addressed.

The first is the formation of a partnership to enable more of the property income to be allocated to the wife.

Although, as you say, a partnership means the assumed 50/50 income entitlement of s836 ITA 2007 does not apply, this is not the end of the matter. A non-commercial allocation of profits within a partnership is still within the settlement legislation of s624 ITTOIA 2005 and can apply to all partnerships and LLPs. This is a view confirmed by HMRC at TSEM4215.

The allocation of more of the profits to the wife without a corresponding increase in her share of partnership equity simply to avoid income tax would be caught by the settlement legislation. The exception in s626 ITTOIA 2005 for transfers between spouse/civil partners would not apply as this would be “wholly or substantially a right to income” without a corresponding transfer of partnership equity. If the couple’s particular rental properties require personal involvement of time and effort and such work is only carried out by the wife, or most of it is carried out by the wife, then it may be possible to commercially justify a greater share of the partnership profits to be allocated to the wife. How much would depend on the time spent and the nature of the work undertaken.

I would add that whether the particular rental properties constitute a “business” that meets the requirements of the Partnership Act 1890 depends on the facts involved. Although not an issue actively pursued by HMRC at the moment, there is a published view from HMRC at PM131800 which states:

The letting of jointly owned property does not normally constitute a partnership. Most cases will fall short of the degree of business organisation needed to constitute a business. The provision of significant additional services in return for payment may be an indicator of such business organisation.

The second issue relates to the unrelieved finance costs.

The rules to determine the entitlement to relief of non-deductible costs of a dwelling-related loan for an individual are contained within ITTOIA 2005 S274A and S274AA. Section 274A(3) tells us the relievable amount for a tax year is the total of the individual’s current-year restricted finance costs (if any) for that year in respect of that business and the unrelieved individual’s brought-forward restricted finance costs (if any) for that year in respect of that business.

The legislation restricts the tax reduction for finance costs so that a reduction can only be made against the income tax liability on the same property business to which the finance costs relate.

Although the properties and the individuals carrying on the letting activities will remain the same after the partnership is formed, for income tax purposes the partnership property business is a separate property business to that previously carried on by the individuals (ITTOIA 2005 S859(2)). This rule pre-dates the finance costs restriction and is covered by HMRC at PIM1030.

Therefore, unrelieved dwelling-related loan costs accumulated by the wife will be lost on the formation of the general partnership.

Whilst the wife’s only source of income is property income, she may continue to accumulate unrelieved finance costs. Your clients may want to consider allocating more of the underlying ownership of the property to the wife or transferring other income producing assets to utilise her personal allowance to maximise finance cost tax reductions.

Form 17 – Joint Ownership Proportions

For jointly owned property Form 17 and Declarations of Trust can be used to change the split of ownership.

When you make a declaration it must apply equally to ownership and income and a couple must be married or civil partners, you can’t be separated or divorced or joint tenants.

Form 17 is used to make the declaration

You can use this form to declare a beneficial interest if you hold property jointly and:

• you actually own the property in unequal shares, and

• you are entitled to the income arising in proportion to those shares, and

• you want to be taxed on that basis.

Form 17 must be submitted with in 60 days of completion, in addition a Declaration of Trust is likely to be required.

If there is a change, even a minor change, after submitting the Form 17 it will be invalid and revert to 50/50.

If the property is held in a single name it may be possible to use a declaration of trust to confirm joint beneficial interest.

Income Tax and Capital Gains Tax will be be based on the beneficial interest in the property, so if one spouse is a higher rate tax payer and the other a lower rate tax payer changing the proportion of ownership could have a significant tax advantage.

steve@bicknells.net

VAT Construction Reverse Charge – what does the Subcontractor Invoice need to look like?

laughing male constructor showing thumb up at working desk

For VAT reverse charge to apply the subcontractor must be able to answer these questions

  1. Is the work being done a construction activity (CIS340)
  2. Are both the Subcontractor and Contractor registered for VAT (and the VAT rate isn’t Zero) and CIS
  3. Does the contractor have an onward supply for Construction Services (in other words they aren’t the end user or an intermediary)

Assuming the answer to all 3 questions is YES then VAT reverse charge will apply and the subcontractors invoice need to look like this one.

Under the VAT Regulations 1995 invoices for domestic reverse charge supplies, when the customer is liable for the VAT, must include the reference ‘reverse charge’. The following examples fulfill the legal requirement:

•Reverse charge: VAT Act 1994 Section 55A applies

•Reverse charge: S55A VATA 94 applies

•Reverse charge: Customer to pay the VAT to HMRC  

The Subcontractors VAT return will look this.

All the major software providers have this covered for you, for example on Sage Accounting you just need to tick a box on Customers Account Settings.

steve@bicknells.net

How do you reclaim CIS deductions?

two man holding white paper

If you don’t have Gross CIS status you may have Construction Industry Scheme (CIS) deductions to reclaim and you will be probably be trying to reclaim now as we have concluded a tax year (5th April and submitted returns due on the 19th April).

Sole traders and partners

At the end of the tax year, send in your Self Assessment tax return as usual. You should record:

  • the full amounts on your invoices as income
  • any deductions contractors have made in the ‘CIS deductions’ field

HM Revenue and Customs (HMRC) will work out your tax and National Insurance bill and take off any deductions made by contractors.

Limited companies

The process for companies is different, companies may well have offset Subcontractors deductions and payroll against deductions made by their clients using CIS132 How to offset Construction Industry Scheme deductions – CIS Offsetting (CIS340 4.13) – Steve J Bicknell Tel 01202 025252

So the first step to work out the net amount to reclaim and check it to the HMRC Government Gateway.

You can choose to:

  1. Form R38 to claim the Refund – Claim an Income Tax refund – GOV.UK (www.gov.uk)
  2. Claim online via your government gateway (agents will use their Agent Services Account) – Claim a refund of Construction Industry Scheme deductions if you’re a limited company or an agent – GOV.UK (www.gov.uk)
  3. Claim by Post

Claim via the Government Gateway

When you click this option ad log in you will get an access code xxx-xxx-xxx, keep a not of this code, the next screen asks you to enter it.

The you can choose

  • New Claim
  • Amendment

I think the amendment option is very helpful in case you make a mistake (shame we don’t get this for other taxes like VAT or PAYE)

Then the questions are

  • Name
  • Agent details and address (if its being claimed by an accountant)
  • Business details
    • Name
    • UTR
    • PAYE reference
    • Tel No
    • Business Address
  • Tax Year for the claim ie 6th April 2021 to 5th April 2022
  • Estimated overpayment (note the word estimated) this the net amount from the CIS132
  • Do you want to offset against other taxes Yes/No
  • Would you like a Cheque or Bank Transfer
  • Bank details for bank transfer
  • E Mail for confirmation

Then you will get a confirmation via E Mail ‘Claim repayment of deductions from your Construction Industry Scheme payments’ it will have another reference xxx-xxxx-xxx

You’ll normally receive a response within 25 days.

Claim by Post

Write to us and make sure that you include:

  • your full company name
  • your PAYE reference numbers
  • the reasons for the overpayment
  • a completed R38 form if you want your refund to be paid to an agent or other representative

If you want us to pay the refund into a bank account, you’ll need to provide the:

  • bank account number
  • sort code
  • account holder’s name

If you want us to deduct your repayment from other amounts you owe for:

  • Corporation Tax — include your Corporation Tax unique tax reference and either the end date of your accounting period or accounting period number
  • VAT — your registration number and the VAT Return period
  • other liabilities — include type of charge, year or period it refers to and any reference numbers you have

You do not have to send any supporting information with your claim, but we may request further details if your claim does not match their records.

Mark your claim ‘CIS’ and send it to:

National Insurance Contributions and Employer Office
HM Revenue and Customs
BX9 1BX
United Kingdom

steve@bicknells.net

What if you move a Property from Fixed Asset Investment to Trading Stock or Vice Versa? Appropriations and Reclassifaction

man in black long sleeves holding the signage while looking at the camera

The rules are in

CG67900 – Capital Gains Manual: Businesses: Appropriations to and from stock in trade

Appropriation treated as a disposal – TCGA92/S161 (1)

Where an asset (which was acquired by a person otherwise than as trading stock) is later appropriated for use as stock in that person’s trade, the transfer is dealt with for trading profits as if there were a sale and purchase at market value, see BIM33630. For capital gains purposes, TCGA92/S161 (1) deems the asset to have been sold for its open market value at the date of transfer.

Election to defer CG charge – TCGA92/S161 (3)

Collection difficulties might arise because tax on chargeable gains may become due and payable before there has been a factual disposal of the asset. To relieve this problem, the trader may make an election under TCGA92/S161 (3). If an election is made, there will be no chargeable gain on the appropriation of the asset to trading stock. Instead, in the computation of trading profits, the market value of the asset will be reduced by the amount of the chargeable gain. The effect of an election is that the trading profits or losses will include the whole of the income profit and the capital gain accruing on the asset over the whole period of ownership.

So what happens if you have a develop a property and then decide to keep it as an investment rather than sell it?

This known as reclassification and there would be an immediate deemed disposal under ITTOIA 2005 s 172B and CTA 2009 s 157 as a result a taxable trading profit would calculated based on the market value. 

The tax would be payable even though the property had not been sold and a profit had not been realised. No elections are available.

steve@bicknells.net

Why Builders and Contractors need to do Cost Value Reconciliation?

Cost Value Reconciliation and Cost Value Comparisons are used on construction projects, they are essential if you want to keep project on budget and report costs and revenue correctly.

The CVR not only looks at costs to date and sales revenue to date but also brings in committed costs, forecasts, contingencies, scope changes, stage of completion and forecasts.

There are two types of Revenue Valuation, Internal (for use with the CVR) and External (application for payment), what gets certified with the client is unlikely to be the true internal value. There may also be items disputed with the client.

The CVR then results in adjustments to both Revenue and Costs to give a true reflection of Profitability.

Costs should not be under estimated and Revenue should not be over estimated within the CVR.

The CVR is great tool to highlight spend issues early on and take action with the client to keep within budget.

Here is an example CVR from the Template Store Cost report template (online-templatestore.com)

The case of Mark Smith v HMRC [2012] TC02321

The appellant in this case was trading as a builder who provided ground works for construction companies. He had an in house surveyor who produced his applications for payment, the clients surveyor certified the valuation within 3 weeks and the accountant recognised the value when certified. The contracts were fixed price and lasted up to 12 months, The business started as a Sole Trader and was subsequently incorporated.

HMRC opened an enquiry in 2001/2002.

The central issue before the tribunal related to the appellant’s computation of profits. It was admitted that his accounts understated the profits gained in a particular tax year. However, it was his contention that this was a “one-off”.

The tribunal held that HMRC’s assessments were in fact justified.

The reason why HMRC were successful was that in the case of Mark Smith he based his income on certified revenue, this meant that the profit was understated, within Construction “UK GAAP” requires revenue to be reported on application based on the CVR matching approach.

The details of the additional profits and tax for each year are as follows:

(1)2000/01: additional profits of £43,189 giving rise to tax of £17,275.60

(2)2001/02: additional profits of £65,205 giving rise to tax of £24,972.02

(3)2002/03: additional profits of £73,889 giving rise to tax of £27,737.86

(4)2003/04:additional profits of £70,023 giving rise to tax of £27,503.41

(5)2004/05: additional profits of £70,000 giving rise to tax of 27,704.18

(6)2005/06: additional profits of £65,240 giving rise to tax of £26,735.44

(7)2006/07: additional profits of £45,541 giving rise to tax of £18,671.81

Further guidance is in UITF40 which came in 2005 and basically stated revenue should be reported in line with work completed by the seller.

Under the principle of matching costs and revenue should be aligned.

steve@bicknells.net

What is the optimum pay for 2022/23 – examples

serious ethic businessman working on laptop

Let’s focus on Directors owning their own companies.

A quick summary

  • Primary NI threshold is changing on 6th July 2022
    • Weekly – from £190 to £242
    • Monthly – from 823 to £1048
    • Annually – from £9880 to £12570 (which is also the income tax threshold)

That basically means an Annual amount of £11908 (3 months at £9880 and 9 months at £12570), £11908 is £992.33 per month (£12570 is £1047.50 per month).

So £992.33 will be below the Employee NI threshold.

However, the Employer NI threshold will be £9100 (£758.33 per month) and from that level Employers NI will be charged at 15.05% unless you have additional employees and are eligible for the Employment Allowance of £5000 (previously £4000).

Dividend Tax rates for 2022/23

  • Allowance £2000
  • Lower Rate 8.75%
  • Higher Rate 33.75%
  • Additional Rate 39.35%

National Insurance Rates for 2022/23

  • Class 1 to the Upper Earnings Level 13.25%, then 3.25%
  • Employer NI Rate 15.05%
  • Employment Allowance £5000

Here some examples

Example 1

  • Salary £12570
  • Dividends £2000 (dividend allowance)
  • Interest from company £1000 (savings allowance)
  • Total £15570

You will pay Class 1 Employee NI £87.72 (13.25% of (£12570 – £11908) [£662]) and your company will pay £522.24 (15.05% of (£12570 – £9100) [£3470])

Total NI Paid £609.96

The company will have saved 19% (at the lower rate) of (£12570 + £522.24 + £1000) x 19% = £2677.53 as these costs will be offset against profit

In order to get a dividend of £2000 the company will have been taxed £469.14 (19% of the gross amount)

Example 2

  • Salary £11908
  • Interest £1000
  • Dividends £37000

Employers NI will be £422.60

Dividend Tax will be £35000 – (£12570 – £11908) x 8.75% = £3004.58

In order to pay £37000 in dividends the company will need a profit of £45679 and will have paid 19% (assuming lower rate) which is £8679 corporation tax

Summary

In order to qualify for benefits including the state pension you have to earn above the Class 1 NI threshold

So it seems logical to opt for a Salary of £12570 (£1047.50 per month)

Above this level income tax starts at 20% and NI is 13.25% for the employee and 15.05% for the employer, overall thats 48.3% tax and NI (but the employer may be entitled to the employment allowance offsetting the employers NI and gross pay and employers NI are deductible against corporation tax)

If you have lent money to your company its worth paying some interest (at a commercial rate) as that is tax deductible for the company (saving 19% CT) and there is a savings allowance and in addition interest is not subject to NI, income tax starts at 20%

Dividends are better than salary because there is a £2000 allowance and then tax starts at 8.75%, but remember the company will have paid 19% CT on profits, so overall at lower rates of tax that 27.75% tax but dividends can only be paid if you make a profit or have profit reserves in the balance sheet.

If you are a client and want to try a specific combination perhaps adding other sources of income, let us know.

steve@bicknells.net

Working from Home (home office) – what can you reclaim?

man using macbook

Many people have been and are now working from home and want to reclaim expenses. Due to its popularity its not surprising that HMRC have been looking closely at claims.

The rules are different for employees and the self employed.

Companies, Directors and Employees

Let’s start with employees.

The first critical point is that employees can only claim expenses if they have to work from home, if they voluntarily choose to work from home they can’t claim.

Then there are basically 3 options for employees and directors:

  1. Claim £6 per week – You’ll get tax relief based on the rate at which you pay tax. For example, if you pay the 20% basic rate of tax and claim tax relief on £6 a week you would get £1.20 per week in tax relief (20% of £6).
  2. Claim a % of actual expenses – HMRC suggest –

You may be able to claim tax relief for:

  • gas and electricity
  • metered water
  • business phone calls, including dial-up internet access

You cannot claim for the whole bill, just the part that relates to your work.

In addition if you have costs such business insurance, repairs of business equipment, cost of cleaning materials to clean your business work area (COVID being a key reason) these would be allowable.

Claims should be submitted on expense claim forms with supporting calculations.

Capital Allowances are available on business equipment.

Mortgage Interest, Rent, Rates are not allowable as HMRC say that costs must be ‘wholly and exclusively for business’ and HMRC are unconvinced that employees/directors meet this criteria.

3. Rent part of your home to your company – To do this you need to create a licence agreement (we have template if you need one) with your company in order to allow it to occupy part of your property. It then pays you rent and service charges and you then claim all your expenses under Self Assessment.

This means you will need to complete the property section of the Self Assessment return as you are effectively becoming a commercial landlord but it means you can recover all relevant overheads and variable costs, mortgage interest would subject to section 24 (so excluded and then used in obtaining the Finance Cost Allowance), you can also include a proportion of rent and rates.

Whilst you home is usually exempt for Capital Gains Tax (PRR) your home office once rented out will not be.

Self Employed including Landlords

The Self Employed are generally treated more favourably than employees when it comes to working from home.

There are basically 2 options

Simplified Expenses

You can only use simplified expenses if you work for 25 hours or more a month from home.

Hours of business use per monthFlat rate per month
25 to 50£10
51 to 100£18
101 and more£26

% of Actual Costs

You can claim a proportion of your costs for things like:

  • heating
  • electricity
  • Council Tax
  • mortgage interest or rent
  • internet and telephone use

You’ll need to find a reasonable method of dividing your costs, for example by the number of rooms you use for business or the amount of time you spend working from home.

Example

You have 4 rooms in your home, one of which you use only as an office.

Your electricity bill for the year is £400. Assuming all the rooms in your home use equal amounts of electricity, you can claim £100 as allowable expenses (£400 divided by 4).

If you worked only one day a week from home, you could claim £14.29 as allowable expenses (£100 divided by 7).

steve@bicknells.net

How are HMRC attacking the use of TOMS for serviced accommodation?

The Tour Operators Margin Scheme (TOMS) was created for holiday companies.

Accommodation that is bought in and sold without material alteration, falls within TOMS. However, where there is material alteration the accommodation becomes an in-house supply and TOMS can not be used.

Further details are in Notice 709/5

7.6 How an in-house supply of accommodation is made

If you own a hotel and supply accommodation within it, you are making an in-house supply of accommodation.

If you hire, lease or rent accommodation under an agreement whereby you take responsibility for the upkeep of the property and you are required to undertake any maintenance to the fabric of the building (that is, not just cleaning and changing towels or bed linen and so on), you are making an in-house supply of accommodation.

Also, if you buy in accommodation and provide catering staff from separate sources, for example a ski chalet with a chalet-maid, you are making an in-house supply, commonly referred to as ‘catered accommodation’.

HMRC are attacking the use of TOMS for Rent to SA

  • Rent to SA is not a tour operator and the services being supplied are not designated travel services – tour operators organise travel in their own name and entrust others with the supply
  • The supply made by the landlord is not a ‘designated travel service’ – taking a lease of residential premises, whether furnished or unfurnished for a term of years is not a relevant service for TOMS
  • The landlord is not supplying hotel accommodation or short-let accommodation
  • If the SA operator furnishes the property that is a material alteration which means TOMS can’t be used
  • If the contract requires the SA operator to replace broken glass or deal with condensation or do maintenance that would go beyond routine cleaning and minor repairs
  • If the SA operator is responsible for utilities and Council Tax these constitute a material alteration to supply

What about the Landlord?

The landlord is not supplying a Furnished Holiday Let unless they meet the Occupancy Conditions set out in HS253 this will not be the case in Rent to SA as they are not doing short lets they are simply renting out residential property on a long let. They will not be able to claim capital allowances and the they will not avoid section 24 interest restrictions.

steve@bicknells.net

Spring Statement 2022

A summary of the Spring Statement 2022 is now available – click here

We have produced this newsletter to cover the main issues that are most likely to be of interest to you. You will also find useful commentaries to help you understand how the proposed changes may affect you personally. In addition, we have included a detailed calendar of the most important dates for 2022/23 that will help you with tax planning ahead of time. If you have any questions concerning the issues covered in this summary, or would like advice on the best possible course of action in a particular area, please contact us – click here