Their son would like to join the partnership as an equity partner, and he will introduce £4,000. What are the stamp duty land tax (SDLT) and capital gains tax (CGT) consequences of him doing so?
A: Working on the principle that a Holdover Relief Claim is made this transfer can be made both SDLT and CGT free.
SDLT
Normally when an interest in land or property, such as farmland, changes hands there will be SDLT due on the consideration paid. However, here the partnership already owns the land and so is neither acquiring nor disposing of a property interest.
Special partnership rules under Sch. 15 FA 2003 can apply as summarised by HMRC at SDLTM33310 where there is transfer of:
- a chargeable interest to a partnership by a partner or connected person (Paras 10 and 11);
- an interest in a property investment partnership (Para 14); and
- a chargeable interest from a partnership to any of its partners, or person connected with them (Paras 18 and 19)
A property interest partnership is defined by para 14(8) Sch. 15 as “a partnership whose sole or main activity is investing or dealing in chargeable interests (whether or not that activity involves the carrying out of construction operations on the land in question)”.
As there is no transfer of an interest in land or property and as none of the special rules apply, there is no SDLT liability.
CGT
What is being transferred is an equity interest in the partnership from the parents to the son. However, owing to the way that the capital gains legislation is written, transfers of interests in a partnership are deemed, for capital gains purposes only, to be a deemed transfer of the underlying partnership chargeable assets i.e. the farmland and property.
HMRC’s Statement of Practice D12 outlines HMRC’s views on practical capital gains aspects of partnership transactions but this does not override the legislation. Therefore, a transfer between connected persons will always be deemed to be at market value under s18 TCGA 1992.
Holdover Relief is available under TCGA1992 s.165 for assets used for the purposes of the trade and so this should cover all farmland and farm buildings. There are restrictions to Holdover Relief in Part 2 Sch. 7 TCGA 1992 if the assets have not always been used for qualifying trade purposes. as This will allow the parents’ capital gains on the deemed transfer of the share in the partnership assets to be held over – effectively transferring the assets at cost. This will require a joint claim by the parents and the son.
It is also possible not to claim Holdover Relief and then claim Business Asset Disposal Relief on the gain under TCGA1992 s.169I(8).
If the partnership assets include a farmhouse occupied by the parents, then Private Residence Relief should be available to cover that part of any capital gain arising.
