Three taxes are considered when considering the question of incorporating a letting business:
- Corporation/Income Tax
- Capital Gains Tax ; and
- Stamp Duty Land Tax (SDLT).
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) but there is `incorporation relief ` available.
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 – no relief available.
SDLT payable on MV, 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.
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.
PS – There maybe inheritance tax implications as well which are not considered above.
