Leased garage did not lead to non-residential SDLT rates

In Brandbros Limited v HMRC [2021] TC08126, the First Tier Tribunal (FTT) denied an SDLT refund claimed on the basis that a lease of a garage, purchased as part of a residential property transaction and entered into on the date of completion, rendered the transaction subject to lower non-residential rates of Stamp Duty Land Tax (SDLT).

• Brandbros Limited (BB) purchased a three-bedroom end of terrace house with a garage on 27 July 2018.
• On the day of completion, BB entered into a commercial lease of a garage with a third party.
• BB filed an SDLT return on the basis that the transaction was the purchase of Residential property.
• BB then amended the SDLT return on the basis that the purchase was subject to Non-residential rates as it was the purchase of mixed residential and non-residential property due to the lease granted.
• HMRC raised an enquiry and issued a Closure notice denying the refund.
• Following a Statutory review of the decision, BB Appealed to the FTT.

The FTT found that:

• There was no question that the terraced house was residential property for SDLT purposes.
• The garage should be treated as a building or structure in the grounds or garden of the property.
• The garage is therefore treated as residential property regardless of the use to which it is put. 
• The decision in (1) David Hyman and Sally Hyman (2) Pensfold (3) Craig Goodfellow and Julie Goodfellow v HMRC [2021] UKUT0068 which contended that land would not constitute grounds to the extent that it used for a separate commercial purpose, such as land under the scope of a lease, was not relevant in deciding the appeal.
• The grant of the lease on the garage did not alter the residential classification of the property purchased by BB as:
  • SDLT is a tax on transactions.
  • The transaction, the purchase contract for the house and garage, was for residential property.
  • It was only later, post completion of the transaction, that a further transaction was undertaken to lease the garage.
  • The grant of the lease of the garage had no effect on the nature of the initial property purchase.

[Editorial comment: this case was not appealed but the decision does not create a binding precedent, which is handy as Section 119 FA 2003 which sets the effective date of a SDLT transaction refers to the date of completion and not the time of completion. As such this decision might have been appealed and as such potentially overturned on the basis that the garage was put under a commercial lease on the day of acquisition.]

Useful guides on this topic

SDLT: Residential property & dwellings
What is residential property for Stamp Duty Land Tax (SDLT)? What tax rate applies?  What garden and grounds are subject to higher rates of SDLT?

SDLT: At a glance, Stamp Duty Land Tax, rates & allowances
What is Stamp Duty Land Tax (SDLT)? What are the rates of Stamp Duty Land Tax (SDLT)?

Closure notices
When does HMRC issue a Closure Notice? Can a taxpayer demand one? Are there appeal rights?

Statutory Review (by HMRC)
What is a Statutory Review? Is it automatic? What happens in a Statutory Review? Can you challenge a Statutory Review's findings? Can you influence a Statutory Review? 

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

(1) David Hyman and Sally Hyman (2) Pensfold (3) Craig Goodfellow and Julie Goodfellow v HMRC [2021] UKUT0068
The Upper Tribunal (UT) considered the definition of residential property and determined that residential rates of Stamp Duty Land Tax (SDLT) should apply to the purchase of three different properties that all included substantial plots of land.

External links

Brandbros Limited v HMRC [2021] TC08126