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Landlords under attack from HMRC

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Today’s seminar concentrates on the tax changes that have been enacted in the Finance Act (No. 2) 2015 in respect of buy to let property and how to plan for these changes. 

The two main changes are the way in which landlords are taxed, firstly, the withdrawal of tax relief on interest paid and other associated finance costs and secondly an increase in Stamp Duty Land Tax (SDLT), when purchasing buy to let properties. 




We will look first at the matter of the deduction of interest and associated finance costs as this affects the amount of tax you will pay every year.

Interest will no longer be allowed as a deduction in arriving at taxable profits on buy to let residential properties. These changes only impact individual taxpayers and residential properties. 

There is no change for Limited Companies or private property owners of commercial property who can still enjoy the deduction of interest for the purpose of calculating profits.  

Furnished holiday lettings are also unaffected by this attack by HMRC. The possible reason for this is that this type of letting is regarded as a “trading activity” as opposed to a business. This distinction is important when we look at some of the topics later in our presentation. 

Perhaps at this stage it is worth mentioning that a challenge to the changes announced by the chancellor is being mounted by way of a judicial review. This challenge has been taken up by a consortium of property landlords represented by a London law firm. The law firm is Cherie Blair’s firm. Cherie Blair and her husband Tony as you are likely to be aware own quite a valuable property portfolio themselves.

So how have HMRC been able to do this and what is the basis of the challenge

H M R & C by their own admission treat rent received from property as being income from of a business. Their own internal guidance (in the form of their published manuals which can be viewed on their website) indicates that general business accountancy principles are used to determine the profit on which tax is calculated.

Therefore the grounds for the challenge are based on the fundament principle of human rights:- that a business should be taxed on the profit that it makes. 

In simple terms “Income less expenses” and that it is a breach of human rights to deny the deduction of expenses in determining the profit. 



Let us have a look at the impact of the changes with some examples 

The withdrawal of tax relief on the interest and associated finance charges is being phased in over a four year period.  As the interest is not allowed as an expense this effectively increases profit. This profit is then taxed in the normal way. The interest that is not allowed as an expense is then treated as an allowance by reducing the tax payable but only to the extent of 20% of the interest. 

The table below shows that element of interest that is and is not allowed over the transitional period which as you can see starts from 6th April 2017.







Interest allowable as deduction from profit 





Interest given as a relief at 20% 







Other Consequences

A major point to consider is the potential of ending up cash negative. By considering a rental property with 80% loan to value achieving annual rents of £5,000, interest costs of £4,500 (based on £90,000 borrowings at 5%) and with no other costs. This would result in a current net profit and cash surplus of £500.

Under current rules, the tax liability would be £200 for a higher rate taxpayer, suitably covered by the cash surplus. However, under the new rules, when fully implemented, as a result of the restriction on interest deductions the tax liability will now be £1,100 with cash surplus remaining at £500. This gives rise to an effective rate of tax of 220% and a £600 cash negative.

Other incidental but potentially costly tax consequences of the new rules arise where the level of taxable income from all sources exceeds £100,000, the taxpayer is denied the personal allowance deduction. The restriction of the interest deduction causes income to increase potentially pushing the gross income over this limit.

Also, if the landlord had previously been eligible for child benefit the new rules will push income higher and may result in the loss of the child benefit claim. This will occur if income exceeds £50,000. 

For example a claim for two children would result in the receipt of £1,788 in child benefit which could be lost. Taken together with the effective cost of the loss of the personal allowance this could give rise to an additional tax burden of £8,148




So far we have looked in the main at the changes regarding interest and associated costs. But there have been significant changes in SDLT for landlords of residential properties or people buying second homes. These changes will obviously only apply on a purchase of a property and are less likely to occur but the relevant changes are being brought in sooner from 1st April 2016 so they are almost imminent.

In essence these changes increase the amount of SDLT paid on this type of purchase. The increase is 3% above the normal SDLT rate and they also introduce a lower starting point of £40,000. Currently SDLT only becomes due on acquisitions over £125,000. This will add to the cost of purchase (good news at the point of sale but that may be a long time off). 

Multiple Dwellings Relief will still be available allowing relief for multiple transfers of properties. Using this relief, SDLT can be minimised significantly (you will see in our examples an effective saving of 75.3%).



The table below shows the rates applicable. 

 SDLT on property portfolio





Pre 31.03.2016

Tax in Band

Post 01.04.2016

Tax in Band


























1500000-or more






By way of a simple illustration, consider two properties, one costing £100,000 and the other £200,000.

For the less expensive property, the SDLT is Nil under current rules, the cost being less than £125,000. Under the new rules the SDLT is £1,800 (this is the excess over £40,000 at 3%).

For the more expensive property the current cost of £1,500 increases to £6,300.

The matter of the detail of the legislation is close to being finalised and specialists in this field are reluctant to speculate at the present time regarding some of the changes. This is particularly so with the purchase of property by limited companies as well as individual owners purchasing more than 15 properties where exemptions are being considered.



Furnished lettings

One further item in the taxation of residential property which has not been so widely publicised is worth noting. This relates to furnished lettings.

For those who have furnished lettings (and here there is again no definition of what constitutes furnished but the inclusion of tables, chairs & beds would it is suggested have been a must) a 10% of rent less rates deduction was allowed to cater for the costs of furnishing. This was a non-statutory relief and was an alternative to a renewable basis which was very rarely used. 

As part of an overall attempt to provide legislation for all non-statutory reliefs, the 10% deduction has been removed and in future the cost of replacing furnishing will be allowed as a deduction for furnished lettings. It should be noted the initial cost of the furnishing will not be allowed only the replacement. 

Care needs to be taken as the initial inclusion of inferior furnishings (poor quality second hand) with superior furnishing at a later date so as to command the appropriate rent could be regarded as an improvement rather than a replacement and part of the cost denied. A sensible approach is called for here to avoid “putting ones head over the parapet”.



In our opinion there is no one solution fits all approach to these changes – However, here are a few things you should consider to mitigate these changes.

       1. Plan any timing of restructuring if there is significant finance cost to any set up. 

It is perhaps worth noting that if any changes are to be made in the structure of a portfolio by way of re-financing that if this is done before the new rules are effective then these costs will be relieved at higher rates of tax – as the transitional years kick in they will not. Typically there is a 1% charge on new borrowing set up

       2. Is it time we embraced the concept of the repayment model and reduce our growth programme.

So far we have looked at this from the point of view of the interest paid and there is a general assumption that a large number of buy to let portfolios are financed by interest only mortgages. 

To limit the net cash-flow implications each year, it is definitely beneficial to reduce the impact by refinancing or financing new properties with a repayment mortgage. Naturally with repayment mortgages the capital value of the mortgage decreases and so too does the interest. The net profits you retain will be greater. We have a number of years to reduce the capital outstanding on such loans if you can afford to take some pain during this period.

Having another source of income will assist those owners who are considering increasing repayments against loans or starting to make repayments for the first time. Other landlords will be considering releasing equity in the overall property portfolio to reduce the overall debt exposure and possibly using cheaper finance, from home loans for example to lessen the impact. These are not ideal solutions to the problem but certainly ones that clients have indicated appeal at times to them.

In our later examples, if Bill could afford an extra £1,150 per month and Ben an extra £2,700 per month then the outstanding borrowings would be paid off within 15 years meaning that they would be £15,000 per year and £30,000 per year better off respectively.



       3. Consider diversifying into commercial property

As the new rules apply only to residential property, it could be time to consider a move into commercial property.

This carries different risks in terms of obtaining tenants (with voids tending to be greater with this type of property and with commercial property you are dealing with other commercial people who can be a bit more demanding of landlords than residential tenants, although a large number of you in the room may strongly disagree) .

Again how this is done can impact on tax perhaps new purchases being commercial and retaining the existing residential properties or will this involve the disposal of the existing residential properties to buy commercial properties. The capital gains tax that may arise on any disposal will need to be factored into the determination of the funds available for repurchase. Careful planning may reduce the CGT but this would depend on the circumstances. For example a phased sale over a number of years may reduce the tax but if funds are needed sooner for the restructuring, CGT may be a cost of that restructuring.

Where it is a Commercial property that you are considering then a pension fund could be very useful. Pension funds are not permitted to invest in residential property and if there is a wish to move away from residential property into commercial and the income arising is not required for immediate living requirements then a pension fund may be an option.

There is no tax on rent received and no capital gains on eventual sale in the pension fund – it does not get much better than that. However, complexities have to be considered as does the fact you have to be over 55 to take both the 25% tax free lump sum from the pension and, if needed an income.

      4. Time to sell or consolidate 

It is never a bad thing to review your portfolio and something we should constantly assess as to whether you could be making greater returns elsewhere or similar returns for less hassle? 

Maybe now is the time to sell some of the lesser performing assets over the next 3 -4 years before the full impact has taken effect but after we have seen the outcome of the judicial challenge – there is no need to panic sell in 2016 and indeed many may believe the market will readjust itself before the full impact of the changes are upon us and indeed in the case of the judicial review – there may be no need take any action.

However, before considering either a sale of a property please review the capital gains tax liability, if any and before agreeing to any repayment period for a mortgage do the calculations, building in flexibility for unforeseen interest rate increases and changes to your circumstances, including the additional taxes that you may not have fully eliminated. You will get the annual capital gains allowance for each person owning the property so by planning the utilisation of spouse’s allowances you could reduce any gain by £22,200 in the 2016 tax year before any tax would be due.

      5. Incorporation

I will spend some time exploring the advantages and disadvantages of Incorporation as it is definitely on a case by case basis something that each tax payer should review in detail to establish if it is relevant to them. So let’s have a look at what is involved. 

This will involve either the set up or use of an existing limited company and the legal transfer of individual or a portfolio of properties from someone’s personal ownership to the company. 

There are two main tax implications to consider with incorporation, they are SDLT and Capital Gains. Once you have satisfied yourself that these are not prohibitive to you then you can do the calculations to determine if the long term benefits of being in a limited company structure are relevant.

It is always good to question what your end goal is with the portfolio and when will you maximise value for you and your family.



On incorporation:- SDLT is currently payable 

SDLT is currently payable within 30 days of the transfer of the assets (unless assets are gifted). SDLT is payable on the true value i.e. the transfer value and you will need to use a fair value to avoid a challenge and penalties from HMRC’s specialist division, the valuation office. 

You may have applied incorporation relief to the transfer of the assets to roll over any capital gains tax due (I will run through how this works a little later) but you may still have to pay SDLT. 

If you have decided to try and undertake the transfers gradually to avoid higher rates of stamp duty even after taking advantage of multiple dwellings relief, then the transfers may be considered by HMRC as a linked transaction (same buyer/same seller) and SDLT would be determined by reference to the overall value of the portfolio and not on a property by property basis. This will require careful consideration as the SDLT rates may vary considerably for staged transfers as opposed to a one off transfer of the whole portfolio. 

Whilst the position regarding company purchases is unclear during the consultation process we are including an illustration of the impact the new rates would have if they applied to companies. We will use as a point of reference our substantial portfolio (CLICK TO DOWNLOAD HANDOUT C) case generating gross rents of £75,000. If this rent was as a result of a portfolio worth £900,000 then the SDLT would be £15,000. 

If a single property was acquired under the new rules for a value of £900,000, SDLT payable would be £60,800. This is a significant increase from the £15,000 as a result of not qualifying for Multiple Dwelling Relief.



On incorporation :- Capital Gains tax – election to roll over the gain for some 

The transfer of the properties can result in a capital gains tax liability arising on the increase in value on those properties from their original purchase to the transfer value.

However, there is an all or nothing relief available to landlords who transfer the whole property portfolio in one go, called incorporation relief. 

One of the main conditions HMRC place on the transfer is that the whole of the “business” is transferred in exchange for shares and then the gain can be rolled over into the cost of the shares. The gain to date will only crystallise when the shares are disposed of.

For example, if you transferred the shares to children at a later date, this is regarded as a disposal for CGT purposes. However, this particular disposal is itself not eligible for hold over as the relief in these circumstances only applies if the gift is of shares in a trading company which property ownership is not. It may be a business but it is not a trade.

The real advantage lies in the fact that with the incorporation relief, the Company’s future disposal of any of the properties has the base cost of the property for corporation tax on chargeable gains at the market value of the property at the time of transfer and thus a sale of the property shortly after the transfer would probably give rise to very little by way of gain. If a property has been owned for many years this is a very tax efficient means of increasing the original cost price to market value today prior to any sale and significant CGT could be saved – at the cost of SDLT, if any for the transfer in.

In order to satisfy the incorporation relief rules though it is important to ensure that this is done for a consideration and you will need to be transferring the whole of the assets of the business in exchange for shares. We believe a large number of our clients will not meet the criteria of what constitutes a business and should not rely on this relief without giving it serious thought.

Finally on the question of incorporation, as an alternative to incorporation relief, hold over relief for the gift of business assets is sometimes used. This method of incorporation avoids SDLT but unfortunately this relief would not be available in Bill’s case as this is only granted on the gifting of ‘trading assets’ and as we have indicated this type of business is not a trade.

On Incorporation – are the activities I have been undertaking “a business” in terms of the rental properties and why is it important?

There is uncertainty as to what constitutes a business for the purpose of this relief. H M R & C provide no firm guidelines but it is clear that a single property managed by a letting agent is not considered to be a business, whereas a significant portfolio of say 50 properties managed by the property owner, the income from which provides their lifestyle will be. There is no clear cut dividing line. 

This matter was recently explored in a Northern Ireland tax case, of Elizabeth Moyne Ramsay. Was the activity she carried out that of merely the normal passive activities of owning an investment property or, as was decided, was this “a serious undertaking seriously pursued” which was “conducted in a regular manner on sound business principles”. In this case, the properties in question consisted of a single block of 15 flats.

The tribunal also found it would be irrational to deny the relief on the basis that it was not a business and yet the same activity when carried on by a company would be treated as a business. Thus would this now mean a small lettings agent’s managed portfolio satisfy this final criteria. There has been no formal comment other than this case was found in the taxpayers favour and may be dependent purely on the facts of the case. 



Now incorporated – What are the tax benefits having gone to the cost of transferring in

Assuming you have satisfied the rules and made the decision to incorporate and have transferred the property, the two main benefits you can enjoy as a company are:-

  • Interest paid on loans is still a deductable expense in determining taxable profit.
  • Profits are then taxed at 20%, as opposed to 40 % or 45 % depending on your higher rate of tax.
  • Indexation relief is available against any CGT that may arise on sale of the properties (covered in more detail below).

However, the net profit belongs to the company who is now the property owner. 

  • In order for the owner of the shares in the company to get the profits out on which the company has paid corporation tax, the remaining cash or profits you wish to take will need to be drawn from the company. The most tax efficient way is still by way of a dividend as opposed to Salary.*

*This discounts the various remuneration trusts that are marketed and still exist today which claim to eliminate these taxes. We are not and never have recommended the use of trust to shelter income. There will without doubt be a challenge to these trusts in most people’s lifetime that will be a constant threat and highly likely resulting greater tax when considering penalties in the long term.

  • Last summer George Osborne announced changes in the way dividends are taxed. From 6 April 2016 you will pay 32.5% on receipt of dividends (cash drawn from the company) as a higher rate tax payer. Previously this was 25% of the net dividend. The effective overall rate is 46% (20% + 32.5% of 80%). 

Clearly the ultimate owners of the property will need to decide whether the cost of transferring into the company and retention of profits are relevant to their circumstances and also if the uplift in the base cost of any properties that are heavily pregnant with gains offsets any additional tax or cost of incorporation.

A general rule of thumb is that the double taxation which sees corporation tax and personal tax paid on the properties profits of 46 % of the profit may put people off the transfer to a limited company if the profits are to be drawn and there are no significant gains to protect referred to above in incorporation relief.

Indexation relief for companies not individuals – on the sale of the properties

Company’s capital gains on disposal are subject to corporation tax in the same way as rental or any other income of the company, currently at 20% regardless of the level of profits (the exception is dividends received by the company which are not subject to tax). However, a commonly unconsidered but relatively substantial relief allowed for within a limited company is indexation relief. This relief is only available to companies (it was abolished for individuals in 1998) and thus additional costs are available to reduce the gain.

As example based on current indexation rates – a property that was owned within a limited company in the last 10 years that cost £100,000 and was being sold for £200,000 would have the corporation tax payable not on £100,000, but on £65,000 as there is £35,000 of indexation allowance available. Please note clearly this is not retrospective so anyone transferring properties into a limited company would need to consider whether this relief will be in existence at the time of any sale of the property. It is a relief that could also be the subject of attack later, but for now it is useful. 



Other considerations:- 

The sale of shares in a property investment company is not eligible for the 10 % rate of tax on disposal unlike shares in a trading company. 

Any disposal of these shares will be subject to capital gains tax probably, based on the values we have considered, at the higher rate (currently 28%). 

Death – Companies v individual ownership – IHT

No difference.  On death the value of the shares would form part of the estate of the deceased and as the business is not a trade, they will not qualify for Inheritance Tax Business property relief and will thus be potentially fully taxed along with the rest of the estate. This is exactly the same as the buy to let property portfolio if owned in the individuals own name.

Non-tax issues equally important 

  • Financing 

Whilst we have focused on the tax implications of incorporation there are one or two non-tax matters to be considered. It has previously been perceived as more troublesome to obtain finance for residential property through a corporate structure. However, if there is a substantial move away from personal ownership to corporate ownership we are already seeing that the mortgage lenders will exercise some consideration and clearly with suitable safeguards may make the issue of corporate borrowing an easier process akin to the current personal process.

It is also advisable to review the borrowing rates that will be offered in a Limited Company to plan ahead against interest changes. Personal guarantees can usually be offered to ensure that the same rates as your personal situation are achievable.

  • Leases, paperwork, insurance, rates, councils and landlord licensing

You should advise your insurer of the incorporation - Premiums maybe the same – However, I would check with your own broker.

Leases – to ensure that you are acting lawfully I assume these should be novated or simply changed when any AST runs out.

You will have an obligation to advise the local authority regarding rates and also possible Housing claims and we do not believe that this should incur additional cost just some administration and possibly delays with claimant’s rents paid for social housing.

That concludes the notes for Limited Company v individual ownership – as you will see not a clear cut decision by any means for some of us. For others it will be more obvious. We would like to consider two situations in the attached examples.

I would recommend a thorough review of Limited Companies as a possible solution in full or as part of the investment strategy. 



We appreciate that amongst the audience today there will be a good spread of property owners, with single properties to those who have sizeable portfolios and whose livelihood is solely dependent on the profits generated. We would like to consider two situations in the attached examples.

In the examples, we assume we have completed the 4 transitional years and are in 2020/21, when 100% of the interest deduction is denied. We have also assumed the taxpayers have other sources of income and are paying tax at 40% on the rental income. 

In the first example (BILL – CLICK TO DOWNLOAD HANDOUT A), the simple situation we have a taxpayer who we shall call Bill, who owns 4 investment properties which cost £400,000 and are currently valued at £400,000. He has borrowings of £300,000 on a 5% interest only basis and does not require the income for his lifestyle. Interest payments each year amount to £15,000.

Under the new rules he finishes up £3,000 worse off after paying all expenses including interest which whilst not being allowable for tax still needs to be paid as well as the tax itself. 

If Bill incorporates then he will be in the position of being able to retain after tax and all expenses £4,000 per annum. This assumes there is no requirement for the retained funds but if they are withdrawn the annual tax would be £1,300 giving net income of £2,700 which is still better than under the new rules where his net income is Nil.



How does Bill incorporate and what are the tax consequences on entry and exit? In this case and in order to avoid SDLT, he gifts the properties to the company. As the value of the properties is equal to the original cost no CGT arises either.

If Bill intends to sell after (say) 10 years, the company will have a chargeable gain but will be eligible for indexation allowance which reduces the taxable gain. If the company is wound up after sale of the properties, the net proceeds plus the accumulated funds will be distributed to Bill and he will have a personal CGT liability to account for. Based on the sales proceeds of £600,000 the net position will be £452,188.

If however Bill decided not to incorporate then his NET position would be £544,000.

To summarise if no income is taken prior to sale he will be £40,000 better off over the 10 year period by incorporating. As Bill does not require the income for his lifestyle, this £40,000 could be used to pay off some of the capital element of the outstanding borrowings.

If ongoing income is taken at higher rates of income tax he is still better off but only by £27,000 over the 10 year period. However, in this scenario, due to the sale, he is worse off by £91,812 by incorporating over this 10 year period. 

We conclude from this that in Bill’s case, incorporation should only be considered as part of a longer term plan.



In our second example (BEN – CLICK TO DOWNLOAD HANDOUT B), the more complex situation we have a taxpayer who we shall call Ben, who owns 10 investment properties which cost £450,000 and are currently valued at £900,000. He has borrowings of £675,000 on an interest only basis at 4.44%. Like Bill, Ben does not require the income for his lifestyle. Interest payments amount to £30,000 per annum.

Under the new rules Ben finishes up £6,000 worse off after paying all expenses including interest which whilst not being allowable for tax still needs to be paid as well as the tax itself. 

If Ben incorporates then he will be in the position of being able to retain after tax and all expenses £16,000 per annum. This assumes there is no requirement for the retained funds but if they are withdrawn the annual tax would be £5,200 giving net income of £10,800 which is still better than under the new rules where his net income is £6,000.



How does Ben incorporate and what are the tax consequences on entry and exit? In this case, because Ben is transferring his considerable portfolio as a whole, we can consider claiming incorporation relief which holds over the gain he has inherent in his properties of £450,000. We have included in our example the cost of SDLT which after a claim for multiple dwelling relief is £15,000. The current consultation on the SDLT changes is considering an exemption from SDLT for corporate acquisitions of residential properties. We have for the moment included the SDLT cost in both this and the following example.

If Ben also intends to sell after (say) 10 years, the company will have a chargeable gain but again will be eligible for indexation allowance which reduces the taxable gain. If the company is wound up after sale of the properties, the net proceeds plus the accumulated funds will be distributed to Ben and he will have a personal CGT liability to account for. Based on the sales proceeds of £1,300,000 the net position will be £1,149,960. This includes the SDLT payment that was made upfront.

If however Ben decided not to incorporate then his NET position would be £1,122,000.

To summarise if no income is taken prior to sale Ben will be £100,000 better off over the 10 year period by incorporating. As Ben does not require the income for his lifestyle, this £100,000 could be used to pay off some of the capital element of the outstanding borrowings.

If ongoing income is taken at higher rates of income tax Ben is still better off but only by £48,000 over the 10 year period. Also, in this scenario, even including the sale calculations, Ben is better off by £27,960 by incorporating over the 10 year period.

At this point I should add that if Ben had 100 properties then, using the same assumptions, these figures can be pro-rated up to £1,000,000 better off by retaining profits in the company.



So what is the answer? – I will try to summarise a measured approach as follows:-

  • Consider incorporation

    If the cost of incorporation is too great for the whole of the existing portfolio then one part of the solution could be retaining the existing portfolio under the current ownership structure and buying new purchases within a limited company. Alternatively identifying those properties that could be transferred at low entry costs i.e. those with a small gain that can be gifted to a Limited Company to avoid any SDLT. Do not forget the company has not only increased the base cost of the properties transferred to full market value for individual disposals later on but also has indexation relief against future sales to reduce the tax exposure.

    Higher rate tax will be paid at an effective rate of 46% when incorporated in comparison with 40% for an individual, however, this can be minimised by making use of family members unused allowances and claiming other reliefs that are only available to limited companies.


  • Timing of any significant programme of repairs or improvement to a portfolio, this could be delayed to later dates to reduce the profits in the years most impacted by the new rules. This would of course result in increased taxes in the earlier year when the expense is not being incurred but in later years it will of course benefit from tax relief at higher rates as income is pushed up as a result of the interest not being deducted.
  • Review your portfolio to make more profit and ensure the assets are generating the right return. I will include at this stage the issue of getting properties onto a repayment programme – no matter how far away this might seem, we would recommend some element of repayment – the banks like it and you will be financially better off for it in the long term.
  • Get your banking costs down – there will be a few grimaces from a large number of the room now I have mentioned this – but clearly you need to retain as much profit as possible. So when your next mortgage is up for renewal, negotiate with lenders to see if there is a better deal out there for you.


So that concludes today’s seminar and I hope you have found it useful – our message is simple don’t panic and in many instances value can be achieved through forward tax planning. 


Thank you for listening and I would like to invite any questions – which I will attempt to answer – but in the event I am unable to answer, then Gary and I would be delighted to discuss in more detail later.

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