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.
Mark Alexander - Founder of Property118
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Sign Up19:34 PM, 27th August 2024, About 4 months ago
Reply to the comment left by Ryan Stevens at 27/08/2024 - 18:05
There really isn’t a differentiating factor that we are aware of.
We have reviewed the unanswered letter from CIOT to HMRC (sent Feb 28th this year) where CIOT are suggesting that ESC D32 might have meant “novate” instead of “indemnity”. However, our view in that if that if HMRC meant “novate” that’s what they should have been saying for the last 50+ years.
There will undoubtedly have been thousands of incorporations that used an “indemnity” to enable business liabilities to be “taken over”. These liabilities will not only have related to mortgages but hundreds of other example, eg contracts for office equipment leasing, vehicles, rental contracts, undertakings etc. etc.
We definitely agree on a general Partnership not being a legal entity, but the “sum of proportions” calculations for SDLT apply to all forms of Partnerships.
A Partnership agreement is often regarded as good practice but is not a requirement in law to meet the definition in the Partnership Act 1890. Also, given that divorce law overrides Partnership law the existence of a Partnership Agreement between spouses (which most landlord Partnerships are) is somewhat pointless.
GlanACC
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Sign Up20:04 PM, 27th August 2024, About 4 months ago
Mark, the partnership was a business at one point as we had enough properties in it that we were spending more than 20 hours a week managing it. Issue was we sold a lot of properties in the partnership so we now only have 2. However a partnership doesn't just go away because you have reduced the number of properties. We are still making partnership returns to HMRC which are being accepted.
Mark Alexander - Founder of Property118
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Sign Up20:17 PM, 27th August 2024, About 4 months ago
Reply to the comment left by GlanACC at 27/08/2024 - 20:04
I have never comes across a situation where HMRC have disputed the existence of a Partnership in circumstances such as yours, but that doesn’t mean they couldn’t do so.
May I ask why you didn’t incorporate when you had 16 properties?
I agree that’s it’s probably unrealistic for you to consider incorporation at this point, subject to what I said earlier about possible exceptions of course. However. it does appear that whilst you might previously have cleared HMRC’s “meaning of business” test for the purposes of claiming incorporation relief, you are unlikely to now.
Mark Alexander - Founder of Property118
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Sign Up21:07 PM, 27th August 2024, About 4 months ago
Reply to the comment left by dumb Rowley at 27/08/2024 - 18:54
Given that I know the person who posted this, the answer is that both partners work full time in their student rental property business.
I can also confirm that they had mortgages which were taken over by the company in the form of an indemnity and that beneficial interest was transferred but legal owner and mortgages were not at the point of incorporation, but most of the mortgages and legal ownership of the properties have since been transferred since the original incorporation date in 2017.
GlanACC
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Sign Up21:13 PM, 27th August 2024, About 4 months ago
Reply to the comment left by Mark Alexander - Founder of Property118 at 27/08/2024 - 20:17
Mark ... hindsight is a wonderful thing. We already had a LTD company, however at the time we couldn't get any further loan advance through the LTD company to purchase extra properties. However we were able to do so as a 'partnership' ie me and the wife trading as xxxx.
Yes, in hindsight would I do it again, probably not. however we have 2 of the properties in partnership now and 4 in the LTD company which seems manageable as we have no loans or mortgages. - so we are stuck with it unless we pay CGT and stamp duty to move them into the LTD company, and its just not financially worth it.
Mark Alexander - Founder of Property118
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Sign Up21:25 PM, 27th August 2024, About 4 months ago
Reply to the comment left by GlanACC at 27/08/2024 - 21:13
Makes sense.
I'm sorry you were not aware of what could be achieved back when you could have incorporated your Partnership rental property business using an indemnity rather than new financing, the latter option. which incendentally would be more likely to be regarded as taxable consideration according to the widely accepted expert advice contained within Simons Taxes (published by Lexis Nexis)
Mark Alexander - Founder of Property118
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Sign Up22:04 PM, 27th August 2024, About 4 months ago
Reply to the comment left by Ryan Stevens at 27/08/2024 - 17:03
Just one further point, incorporation relief does not need to be “claimed”, it should be applied automatically…
“ A claim is not required because the relief is automatic. However, the person transferring the business can make an election under TCGA92/S162A to prevent relief under TCGA92/S162 from applying, see CG65730”
SOURCE: https://www.gov.uk/hmrc-internal-manuals/capital-gains-manual/cg65700
SimonP
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Sign Up22:54 PM, 27th August 2024, About 4 months ago
Of course I could be wrong but this post sounds more like an Advertising Feature for P118.
Presumably the poster was referring to Incorporation Relief, which defers CGT on the transfer (i.e. "sale") of property from "sole trader" to company. I'm not going to go into the technical detail but whilst this Relief is normally given by HMRC without the need for a claim, case law dictates that there are a number of criteria (or is it 'criterion'❓)which have to be met if it is to succeed.
Further information can be found on the HMRC website.
Mark Alexander - Founder of Property118
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Sign Up23:10 PM, 27th August 2024, About 4 months ago
How can this possibly be an advertisement? What exactly do you think is being advertised? Property118 cannot even assist with incorporations at the moment.
My comments here are simply referring to legislation, HMRC manuals, HMRC extra statutory concessions, and textbooks on best practice published by Lexis Nexis, all for the purposes of debate and to answer questions asked as well as asking a few questions of my own.
There is nothing for me or Property118 to promote!
GlanACC
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Sign Up7:53 AM, 28th August 2024, About 4 months ago
Even if it was an advertising feature, who can blame 118 - it is their site after all and they are funding it. Get real