Transferring your property portfolio to a Limited Company

Q. I’ve heard a lot about the supposed tax benefits of transferring my buy to let properties to a new Limited Company which I would own – are there any tax issues I need to watch out for?

A. Many clients who have a portfolio of rental properties are becoming increasingly aware of the restrictive changes to income tax relief in respect of mortgage interest relief. They wish to incorporate the property business and if possible take advantage of ‘incorporation relief’. However there could be Capital Gains Tax to pay if ‘incorporation relief’ is not available.

The starting point to answer a question like this would be to consider whether or not the property portfolio is a ‘business’ or passive investment assets because this is the basic requirement to qualify for incorporation relief. Unfortunately, the word ‘business’ is not defined in the legislation which deals with incorporation relief.

HMRC does not generally accept that the term ‘business’ can relate to merely renting out properties. This is clearly a passive activity where a person is simply holding assets that generate an income without necessarily being involved to any significant extent. In many situations, landlords will simply appoint a managing agent.

However, following a recent tax caseHMRC now accepts that ‘business’ has a wider meaning than ‘trade’. In this recent case, the taxpayer was able to show that they spent up to 20 hours per week in actively dealing with matters arising from the letting portfolio and therefore that it truly was a ‘business’.

HMRC has since revised its guidance to accept that incorporation relief will be available where an individual spends 20 hours or more a week personally undertaking the sort of activities that are indicative of a business. However, our view is that this is unnecessarily restrictive and that it may be possible to show that a business exists even if a lesser amount of time is spent. HMRC also admits this is possible though other cases should be considered carefully.

The question is subjective and the onus to prove that a ‘business’ exists rests with the taxpayer. It would be helpful to be able to demonstrate that, for example, the landlord collected in rents and handled the properties personally, rather than relying on managing agents. Better yet if it can be shown that the landlord spent a considerable amount of time in meeting with tenants to identify any problems and then liaising with contractors to deal with all faults and address them.

On that basis, we believe the client would have a reasonable basis to demonstrate they were ‘in business’ and able to claim the valuable incorporation relief.

As with all things tax, it does pay to seek good professional advice.