The standard rates of SDLT on acquiring residential property currently range between 0% and 12%. In addition to this however, there is also:
- A standalone 15% rate for certain acquisitions by corporate bodies
- A 3% surcharge for certain acquisitions– this is most often seen when an individual is purchasing a second (or third etc) residential property
- A 2% surcharge for acquisitions by non-UK residents
The final one of these has only recently been introduced, as from 1 April 2021. Consequently, there is now a potential top rate of SDLT of 17%. This will be the case when either the 2% surcharge and the standalone 15% rate both apply, or the 2% and 3% surcharges both apply and the standard rate has reached 12%. The focus of this article is to look at when the new 2% surcharge applies.
The new 2% surcharge applies when a non-UK resident is acquiring residential property in England or Northern Ireland for at least £40,000 (or rent of at least £1,000 under a leasehold acquisition). It does not apply to non-residential property nor to property which is a mixture of residential and non-residential. The surcharge can apply to individuals, trusts and corporate bodies.
With a joint acquisition, if at least one party is non-resident then the entire transaction becomes liable to the surcharge. An important exception to this is where a joint acquisition personally involves a married couple (or civil partners) who are not separated, where one is resident and the other is non-resident. In such a scenario, the non-resident spouse is treated as UK resident.
Test of residency
The test of whether the purchaser is non-resident is different depending on whether they are an individual, a trust or a corporate body. This article looks solely at the position for individuals.
For an individual, their nationality or citizenship does not matter. Nor does it matter what their residency is under the terms of the Statutory Residence Test (which applies to certain other taxes). Instead, the following test applies:
Firstly, you take the two-year period which begins 364 days before the effective date of the transaction and ends 365 days after the effective date of the transaction.
Secondly, you then look to see if there is any consecutive period of 365 days which (i) wholly falls within the above two-year period, and (ii) contains at least 183 days where the individual was in UK.
A person who meets the above test will be UK resident. Otherwise, they will be non-UK resident.
The 183 days do not themselves have to be consecutive. Only the 365 day period which they fall within must be consecutive (and itself fall within the two year period). Days are counted where an individual is present in the UK at midnight. Therefore, someone who leaves the UK at 9pm would not count that day. Interestingly, even though the surcharge only applies to acquisitions in England and Northern Ireland, time spent in any of the four UK nations contributes to the day counting.
Because the above two-year period continues after the effective date of the transaction, in theory it is possible for an individual to not meet the residency test at the time of the transaction, but then ultimately meet the test later on in the two-year period. In such a circumstance, the 2% surcharge would initially have to be paid but could then later be reclaimed. The reclaim must happen within 24 months of the effective date of the transaction.
Determining the amount of SDLT payable on an acquisition of residential property is becoming more and more of a minefield. Fortunately, we at Moore Barlow are here to help, contact our solicitors today.