Property118 Incorporation Client Speaks Out

Property118 Incorporation Client Speaks Out

14:24 PM, 23rd August 2024, About 4 months ago 95

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When the letter from HMRC landed on my doormat, I barely gave it a second thought. It seemed like just another piece of bureaucratic correspondence. But as I unfolded the paper and scanned the contents, the words “compliance check” hit me like a punch to the gut. My casual indifference evaporated, replaced by a chilling realisation: I was facing a tax investigation.

My heart began to race, my mind spinning with anxiety, fear, and a growing sense of helplessness. HMRC was scrutinising the validity of a rolled-over relief I’d been assured was my right when my wife and I transferred our entire property investment business partnership to our own Limited Company in exchange for shares. We had done everything by the book, or so I believed. The idea that we could owe Capital Gains Tax when we hadn’t pocketed a single extra penny seemed absurd. Property118 had explained that this particular relief would defer any CGT until we eventually sold our shares, and we had double-checked this with our accountants. We even held a meeting with them and Property118 to thoroughly analyse the legislation, case law, and HMRC manuals. We moved forward with confidence, convinced that everything was airtight.

But as I reread the letter, doubt began to creep in. What if HMRC disagreed?

We responded swiftly, providing all the information HMRC requested. Yet, weeks turned into months with no reply. The silence was deafening, each day amplifying our fears. My wife and I started exploring worst-case scenarios: How much CGT would we owe if HMRC denied the relief? What would it take to appeal such a decision? How much time, money, and emotional energy would that consume?

The mental strain was relentless. It’s hard to describe the cloud of dread that looms over you when your financial future hangs in the balance, and yet, for HMRC, this was just another day at the office. The letters kept arriving, each one demanding more documentation—tenancy agreements, property valuations, mortgage details, contracts, full accounts, mortgage statements, bank statements. The list seemed endless. HMRC even wanted to know the minutiae of how we ran our business: how much time we dedicated to it, why we used agents to find tenants, what services those agents provided, and which contractors we employed and why.

It felt like we were trapped in a never-ending nightmare.

Our only comfort came from the unwavering support of Property118, our accountants, and our barristers. They were patient, thorough, and consistently reassuring. But despite their confidence, we couldn’t shake the nagging fear that this might end in disaster—a Capital Gains Tax bill so enormous it would force us to dismantle the business we had spent decades building.

It was as if we were on trial for a crime we didn’t even know we could commit. What if we had made a mistake? How could we live with that? Would we be able to face our friends and family? The shame and guilt of being duped, of having put our trust in professionals only to have it backfire, weighed heavily on our minds.

HMRC also seemed fixated on why we decided to incorporate our rental property business. It’s only now that I realise they might have suspected we were exploiting a loophole to avoid taxation. But that wasn’t our motivation. As business owners, we have a duty to structure our affairs in the most efficient way possible, not just for tax purposes, but for the future of our business and our family. We had always hoped that our children would take over the business when we retired, continuing our legacy for generations. That’s the advantage of a Limited Company structure, even though it wasn’t something we considered when we started out decades ago. Back then, when Buy-To-Let was a novel investment strategy, Limited Company Buy-To-Let mortgages were scarce and prohibitively expensive. That’s why we initially built the business in our own names.

But times changed. By 2015, it made far more sense to operate within a Limited Company structure. The commercial benefits were clear, and the trend had shifted as Buy-To-Let financing became more risk-based. We adapted, but now, it felt like that decision was under siege.

Then, one day, our accountant emailed us with the subject line: “Closure Notice from HMRC.” My stomach dropped. Did this mean we were in the clear, or was this just the prelude to a crushing tax demand?

It took us a few minutes to muster the courage to call our accountant. I made the call, but my wife sat beside me, clutching my hand, her face pale with anxiety. This was the moment we had been dreading, the moment that could change our lives forever.

“Have you read the letter from HMRC attached to my email?” our accountant asked. We hadn’t even noticed it in our haste to seek answers. We apologised and asked him to explain it in layman’s terms.

“HMRC has accepted that you’re entitled to the reliefs,” he said calmly. “Your tax returns don’t need to be amended, and you don’t have any further tax to pay.”

Relief flooded over me like a tidal wave. I jumped out of my chair and punched the air, shouting with joy as if England had just won the World Cup. My wife broke down in tears, sobbing with a mixture of relief and exhaustion. The nightmare was finally over.

Since that day, both I and my accountant have sung the praises of Property118 to every landlord we know. Their expertise, their guidance—it had all been vindicated.

But then, in September 2023, I came across articles by Dan Neidle, accusing Property118 of promoting an abusive tax avoidance scheme. I was stunned. At first, I thought it would be quickly resolved, but I was wrong.

Within days, Neidle reported that HMRC had opened an investigation into Property118. Suddenly, it seemed like everyone—lawyers, tax advisers, the media—was piling on, branding Property118 as a scam run by crooks. How could this be happening after everything I’d been through?

The messages from people I’d shared my experiences with started pouring in. “Have you heard about the investigation into Property118?” they would ask. “Sounds dodgy to me,” they’d say. “You must be worried.”

Initially, I wasn’t worried. But now, those same dark thoughts are creeping back into my mind. Can HMRC reverse a closure notice? Could they really change the rules after the fact? Where’s the justice in that? If not, why are they targeting Property118?

The only explanation that makes any sense is that HMRC panicked, buckling under the immense negative media pressure aimed solely at Property118—my advisers, who had stood by me every step of the way!

To my knowledge, no other companies offering similar services have been accused of failing to disclose a disclosable tax avoidance scheme for recommending incorporation. Nor have they received Stop Notices from HMRC.

My frustration has now turned into anger. How can the opinion of one man lead to such drastic consequences? Why should every client that Property118 assisted now endure the same anxiety I once did?

Perhaps Mr. Neidle’s legal analysis isn’t flawed. But if that’s the case, why was the HMRC investigation into my business closed? I can only conclude that either my incorporation was entirely legitimate, as HMRC agreed, or that HMRC’s handling of my investigation and the 20+ other investigations into Property118 clients were all deeply incompetent, exposing countless landlords to unnecessary risk in the years that have since passed. I can’t believe for a second that the latter is true, so what does HMRC hope to get from further investigations? Does it hope to prove that it has previously been grossly incompetent in its handling of 20+ investigations, by concluding that everything had been done correctly and the correct reliefs had been claimed?

Please forgive me for choosing to share these thoughts anonymously – I trust you will understand my reasoning.


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Ryan Stevens

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16:55 PM, 27th August 2024, About 4 months ago

Reply to the comment left by GlanACC at 27/08/2024 - 16:50
You will have, broadly speaking, the same issues with CGT and SDLT transferring to a trust, depending on the nature of the trust, etc.

Trusts can be useful in some situations, especially to potentially save IHT, but you generally have to exclude yourself as a beneficiary (in most cases).

Ryan Stevens

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17:03 PM, 27th August 2024, About 4 months ago

Reply to the comment left by Ryan Stevens at 27/08/2024 - 16:55"Can HMRC reverse a closure notice? Could they really change the rules after the fact? Where’s the justice in that? If not, why are they targeting Property118?"
Unlikely to re-open the enquiry, if it was some years ago.
As far as I am aware, HMRC is not changing the rules after the fact, it would just be making enquiries to confirm that,in its opinion, the reliefs have been correctly claimed. Self Assessment is taxpayer claims now, HMRC may check later. No taxpayer should be concerned, if the reliefs have been correctly claimed.

GlanACC

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17:03 PM, 27th August 2024, About 4 months ago

Reply to the comment left by Ryan Stevens at 27/08/2024 - 16:55
Yes, aware of that thanks- I also have some non property assets and non property business to sort out as well

Mark Alexander - Founder of Property118

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17:12 PM, 27th August 2024, About 4 months ago

Reply to the comment left by GlanACC at 27/08/2024 - 16:26
Unless you spend more than 20 hours a week that’s unlikely to be a business in the eyes of HMRC. They are more likely to regard that as curating investment property as joint owners. Therefore, as the definition of a Partnership is two or more persons engaged in BUSINESS with a view to profit, it is unlikely that HMRC would regard you as operating a Partnership either. On that basis, it is unlikely that we would ever have recommended incorporation to you.

That said, there are always exceptions to every rule. If your properties are large HMO’s, holiday lets or blocks of flats requiring intensive management that might be different.

Mark Alexander - Founder of Property118

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17:18 PM, 27th August 2024, About 4 months ago

Reply to the comment left by Ryan Stevens at 27/08/2024 - 16:33
That’s very true, but also completely in accordance with HMRC’s extra statutory concessions….

“CG65745 - Transfer of a business to a company: computation: transfer of liabilities

The transferor is not required to transfer business liabilities to the company but often does so. This is normally done in practice by the company giving the transferor an indemnity in respect of those liabilities.

In strictness, business liabilities taken over by the company represent additional consideration for the transfer and relief under TCGA92/S162 should be restricted. However, ESC/D32 enables any business liabilities taken over by the company to be ignored when quantifying `other consideration’ in recognition of the fact that the transferor is not receiving cash to meet any tax liabilities on the transfer and that the shares in the company are worth less than if the business had been transferred unfettered by liabilities.

ESC/D32
Where liabilities are taken over by a company on the transfer of a business to the company, the Revenue are prepared for the purposes of the ‘rollover’ provision in TCGA 1992 s 162, not to treat such liabilities as consideration. If therefore the other conditions of s 162 are satisfied, no capital gain arises on the transfer. Relief under s 162 is not precluded by the fact that some or all of the liabilities of the business are not taken over by the company.

The concession applies only to business liabilities. Personal liabilities of the transferor taken over by the company should always be treated as part of the consideration. In particular any tax liability arising from the business transferred is a personal liability.“

The “INDEMNITY” for those business liabilities to be “TAKEN OVER” is critical.

SOURCE; https://www.gov.uk/hmrc-internal-manuals/capital-gains-manual/cg65745

Mark Alexander - Founder of Property118

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17:23 PM, 27th August 2024, About 4 months ago

Reply to the comment left by Beaver at 27/08/2024 - 16:44
I am not aware of an HMRC investigation into SDLT insofar as Property118 is concerned. Are you able to provide a link to a credible source please?

I agree with the first part of your comment in relation to eligibility for incorporation relief though.

Ryan Stevens

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17:35 PM, 27th August 2024, About 4 months ago

Reply to the comment left by Mark Alexander - Founder of Property118 at 27/08/2024 - 17:18
Yes, so I imagine it will all depend on whether HMRC/tribunals accept that ESCs are available in the case of the P118 arrangements.

I've not checked, but, given that BTL properties are owned by individuals, not partnerships, it would be interesting to know if personal mortgages taken over by companies on such properties are regarded as 'personal liabilities', rather than 'property business' liabilities.

Mark Alexander - Founder of Property118

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17:50 PM, 27th August 2024, About 4 months ago

Reply to the comment left by Ryan Stevens at 27/08/2024 - 17:35
Insofar as I am aware, there is no lending classification for a Partnership BTL mortgage. Therefore, one needs to first consider whether there is a “BUSINESS” that meets the HMRC meaning of business test, secondly whether there are two or more persons engaged in that business and thirdly whether the business is being operated for profit. The reference legislation is the Partnership Act 1890, plus of course there is also plenty of Case Law to also consider. For example, that famous Case Law ruling “co-adventurers in BUSINESS”.

I cannot see how HMRC can now amend their interpretation of ESC D32 retrospectively. The “legitimate expectations” test would surely need to be applied, and not only in relation to Property118 cases but all S162 incorporations that also relied on ESC D32 being applied to business liabilities being taken over in the form of an indemnity.

I think the key point here is that HMRC gave non-statutory clearances on Property118 cases as long ago as 2015 and they have since issued over 20 closure notices. Issuing SRN’s must have been a case of overstepping the mark and if they do not capitulate on that point then I agree it will be for the Tax Tribunals to decide after hearing very strong arguments from highly regarded counsel.

Ryan Stevens

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18:05 PM, 27th August 2024, About 4 months ago

Reply to the comment left by Mark Alexander - Founder of Property118 at 27/08/2024 - 17:50
I suppose it depends on whether the partnerships used are LLPs or general partnerships. A general partnership is not a legal entity and cannot own property, so presumably there could not be a partnership BTL mortgage.

From there is would depend on the facts, ideally a partnership agreement or other documentation indicating that the individuals intended to operate a business in partnership in relation to the properties.

I agree that it would be unreasonable for HMRC to amend its interpretation of ESCs retrospectively, particularly if it only does so in relation to P118 cases, unless there is something that clearly differentiates P118 cases from other arrangements.

dumb Rowley

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18:54 PM, 27th August 2024, About 4 months ago

What would have been a lot more useful is to know the size of the poster's portfolio.

How many properties?
How many HMO's?

Rule of thumb is that HMRC want to see 6 properties - OR - evidence you spend 20 a week managing said properties.

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