Details of the plans to impose Capital Gains Tax on gains arising to non-UK residents on the disposal of UK residential property have been published.
The proposals are wider than anticipated and also have unexpected consequences for UK resident second home owners.
CGT will be charged on gains accruing from April 2015 to non-resident individual owners, trusts, companies and partners on disposals of residential property regardless of the value of the property.
CGT will also be levied on gains arising on the disposal of investment properties, in contrast to the Annual Tax on Enveloped Dwelling (ATED) regime introduced in April 2013.
The tax payable by non-corporate sellers will be at the normal CGT rates (18% or 28%) with the benefit of the annual CGT exemption (£11,100 for 2015/16) and, if applicable, principal private residence relief (PPR).
A surprising aspect of these proposals is that both UK and non-UK resident owners of multiple homes may, in future, be denied the ability to elect which of their homes should benefit from PPR.
Instead, only the property which is, as a matter of fact, a taxpayer’s main residence or the property that qualifies as such in accordance with a proposed new fixed rule would be eligible for relief.
The rationale behind this is a concern that, if PPR is available on the sale of a non-resident’s home, the non-resident can simply elect their UK home as their main residence (rather than their non-UK property on which no CGT is payable).
Nevertheless, the proposed extension of this change to UK residents is unexpected.
That said, the Government’s dislike of “flipping” is well known and, to this end, the final period of ownership exemption for PPR has already been reduced from 36 months to 18 months for disposals on or after 6 April 2014.
The new proposals also suggest a new method of collecting CGT.
The detail here is sketchy but the idea is that non-resident sellers would have an option either to pay the tax due themselves or have the tax collected by withholding (carried out by the solicitor acting for the purchaser).
The tax would have to be paid within 30 days of completion, this could be quite onerous for the purchaser’s solicitors and it would further complicate the conveyancing process.
The application of the new CGT charge to disposals by non-resident companies will be more convoluted. Companies paying ATED will pay the related CGT charge on all or part of the gain at the usual rate of 28%.
By contrast, all other non-resident companies will be subject to a tailored CGT charge at a rate to be confirmed.
Another unexpected announcement in the recent Budget was the immediate extension of 15% SDLT to corporate purchasers of residential properties worth more than £500,000, (previously £2million).
The scope of ATED will be similarly extended but not with immediate effect. From 1 April 2015 a new band of ATED will apply, with an annual charge of £7,000 on residential properties worth more than £1m but less than £2m.
From 1 April 2016 residential properties worth between £500,000 and £1m will be charged £3,500.
The bands will otherwise remain unchanged and the current reliefs/exemptions (including those for commercially let residential property and development and trading businesses) will continue to apply.
The ATED related CGT charge will be extended from 6 April 2015 to properties worth more than £1m and will apply to that part of the gain that accrues on or after this date; and to properties worth more than £500,000 from 6 April 2016.
The balance of the gain will be treated as at present and, where the company is non-resident and part of the gain is not ATED related, the latter may also be subject to the proposed new tailored charge from April 2015.
Press speculation about a mansion tax grows ever more fevered whilst actual proposals remain elusive. That said, both ATED and the new CGT proposals described in this Newsletter illustrate how soft a target property is and house price inflation will surely tempt our politicians further.
Current possibilities, whether from academics or politicians, include: a progressive property tax (on houses but with relatively low values); increasing Council Tax on dwellings worth over £2m, being the latest idea from Danny Alexander; and a far more radical land value tax which would apply to all types of land.
The debate seems likely to intensify between now and May 2015. We are monitoring developments and will publish specific briefings as soon as there is something concrete to report.
Similarly, taxpayers will be required to pay disputed tax ‘up front’ if they have claimed a tax advantage by the use of arrangements that fail to be disclosed under DOTAS; or where HMRC invokes the GAAR.
This aims to prevent charities being set up to abuse charity tax reliefs and is not intended to catch genuine charitable organisations.
However one of the proposed tests would deny charitable status for tax purposes if one of the main purposes for which it was established was to secure a tax advantage.
This could potentially impact on private and corporate charitable foundations as it is arguable that one of their main purposes is to obtain a tax advantage such as Gift Aid and other reliefs on donations.
The UK and US government have reached an agreement to implement a US law, the Foreign Account Tax Compliance Act (FATCA) in the UK. FATCA was designed to combat tax evasion by US residents using foreign accounts and it requires institutions outside the US to pass information to US tax authorities. A surprising range of institutions are affected by FATCA including some private trusts.
Corporate trustees and trusts which delegate the management of investment portfolios will generally need to register with the IRS by 25 October 2014, in the latter case if more than 50% of their income derives from investments.
Alternatively they may be able to enter into an agreement with a third party (e.g. the investment manager) to register on their behalf.
Thereafter they must report any US connections annually to HMRC, who will pass the information on to the IRS.
Other trusts will not need to register but may have annual reporting requirements if they have any US beneficiaries, trustees, protectors or settlors.
All trustees should consider their status and obligations under FATCA as soon as possible. For full details please see our flyer entitled ‘FATCA: What trustees need to know.’
It has been clear since last November that companies will be required to make greater disclosure of their beneficial owners, but it had been assumed that trusts would be excluded as David Cameron has argued that they should be treated differently.
However, the European Parliament has recently approved an amendment to the Fourth Money Laundering Directive, which will, if implemented, make information about the individuals behind trusts publicly available for the first time.
Each EU member state would have to keep and make available a public register listing the ultimate beneficial owners of privately owned companies, foundations and trusts. There would be provisions to protect data privacy and to ensure that only the minimum information necessary is on the register.
Whilst it is appreciated that greater transparency may help to prevent criminal activity and tax evasion, many feel that these proposals go beyond what is required to achieve this aim.
Although they do seem rather worrying, they are still at a relatively early stage: final negotiations within the EU on the Directive will not begin until later this year and then each individual Member State has to incorporate the result into domestic law before the provisions take effect.
Further, the UK government has confirmed that it will oppose the mandatory registration requirement for all trusts and will seek to negotiate a compromise.
Since the Marriage (Same Sex Couples) Act 2013 came into force on 13 March 2014, same sex couples are able to marry in England and Wales. Civil partners should also be able to convert their legal relationship to a same sex marriage later this year, once the mechanism to do this has been introduced.
The intention is that same sex marriages should have virtually identical tax and legal consequences and effects to opposite sex marriages.
Therefore, from 13 March 2014 all legislation using marriage terminology will be read as encompassing both same sex and opposite sex marriage. The default position for interpreting legal instruments will depend upon whether or not that instrument was in existence on 13 March 2014.
Pre-existing private legal instruments will generally be read as referring only to opposite sex marriages; and new instruments from that date will be read as encompassing both opposite and same sex marriages. The position may be reversed by inclusion of specific provisions to the contrary.
The Court of Appeal has confirmed that a painting used in Castle Howard’s house opening business was a wasting asset which attracted no CGT on its disposal, upholding the Upper Tribunal decision covered in our newsletter last Spring (HMRC v The Executors of Lord Howard of Henderskelfe  EWCA Civ 278).
The painting in question was not owned by the business operator, but informally permitted to be used in the business, and the Court of Appeal has confirmed that the CGT legislation does not limit the exemption to assets owned by the trader.
This is potentially a very useful decision but it may not be relevant to many cases because the CGT exemption does not apply if capital allowances have or could have been claimed on the asset. It is also possible that the law could be changed.
This Publication provides general advice only is should not be relied upon when making decisions. Neither CST nor any other professional in the firm has prepared this with a view to covering any client scenario and this document is not a substitute for professional advice. It has been prepared in conjunction with firm of Boodle Hatfield see www.boodlehatfield.com