In Andrew White and Melanie White v HMRC [2019] TC07434, the First Tier Tribunal (FTT) struck out an appeal concerning the application of Extra Statutory Concession (ESC) D49 regarding Capital Gains Tax (CGT) Private Residence relief (PRR). It did not have jurisdiction to consider it.

ESC D49 deals with short delays (up to two years) in an owner-occupier taking up residence where Private Residence Relief (PRR) applies. Where the ESC applies, the pre-occupation period is treated as a period of occupation for the purposes of PRR.

Mr and Mrs White purchased four interests in land in 2001 and 2002 which they converted into a single dwelling.

  • They took up residence there at some point between September and November 2003.
  • HMRC said the date of acquisition of a property acquired in stages commences from the time of entering into an unconditional contract for the first part of the property acquired, which was in June 2001.
    • Commencement of occupation in September or November 2003 was outside the maximum two-year time limit permitted by ESC D49 meaning that the pre-occupation period could not be considered to be a period of occupation for the purposes of PRR.
  • Mr and Mrs White appealed.

The FTT said its task was to decide whether, on a proper legal construction of the PRR legislation and the legislation setting out the right to make an appeal, it was required or permitted to consider how HMRC had exercised their discretion as to whether ESC D49 applied.

The judge concluded that as neither piece of legislation afforded him such permission the appeal fell outside of the FTT’s jurisdiction. Since the parties had already agreed that that the circumstances of the case did not fall within the strict wording of the PRR legislation, there was nothing for the tribunal to decide and the case must be struck out.

Comment

A reminder that ESCs are concessions: they have no legislative effect and are given at HMRC's discretion.

The judge here had some sympathy with Mr and Mrs White and, had he been allowed to interpret the legislation may have found a way to help them. Ironically, the Court of Appeal has just concluded in Desmond Higgins v HMRC [2019] EWCA Civ 1860, that the date of acquisition of an off-plan property for the purpose of private residence relief was the date of completion, and not at exchange of contracts. 

Links to our guides

CGT: Private Residence Relief
What is Private Residence relief (PRR)? How do you claim PRR? What restrictions apply?

How to appeal a decision of HMRC
What type of a decisions are appealable? What are your different options when you disagree with HMRC? What are the key steps in making an appeal?

External link

Andrew White and Melanie White v HMRC [2019] TC07434

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