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Will SDLT become chargeable if Husband and Wife are in partnership with son?

Home Forums Patrick Cannon Will SDLT become chargeable if Husband and Wife are in partnership with son?

This topic contains 1 reply, has 1 voice, and was last updated by  Justin Bryant 24th October 2017 at 5:30 pm.

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    Caroline Dowding

    Will SDLT become chargeable if Husband and Wife are in partnership with son, H& W owning the land which is held as partnership property and H gifts his beneficial interest in his interest in the land to W by Declaration of Trust?

    Will this differ if the partnership was set up less than 3 years ago under the Sch15, S17 FA2003 anti avoidance provisions?

    We are looking at it from a succession element to get CGT uplift on death of wife who is terminally ill.

    #870 Reply

    Justin Bryant

    As a matter of partnership law, the partners do not own a direct beneficial interest in (an undivided share of) the partnership assets. Instead they have a partnership interest which equates to an indirect interest the total net assets of the partnership itself, which is a chose in action, and so do not have a beneficial interest in them and therefore cannot (individually) transfer any such interest as a matter of property law, although the partnership can of course collectively transfer a partnership asset.

    Although the analysis is not simple, I expect this can be done SDLT-free under Schedule 15 FA 2003 and if not perhaps you could first incorporate the partnership under s162 TCGA without SDLT and then transfer the shares.

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