Company control and the non-resident stamp duty surcharge
At a glance
For the company non-UK control test, SDLT rules can count another person’s company rights as yours. Schedule 9A paragraph 10 restricts that process.
- A de minimis interest must be below 5% in all four statutory tests.
- Special limits apply to business partners and couples who live together.
- This is one part of the wider non-resident surcharge test.
Scroll down for the full analysis.
Read the original guidance here:
Company control and the non-resident stamp duty surcharge
When a company buys property, its own address does not always settle the matter. For the non-resident stamp duty surcharge, the people behind the company may matter too.
When HMRC works out who controls the company, it may count the shares and voting rights that those people hold.
What this rule is about
This rule helps determine non-UK control. For a company buying land, the non-resident SDLT surcharge may be in point.
The difficult issue often sits beyond the share register. Company-control rules can treat rights that another person holds as if you held them.
The rules call this attribution: counting another person’s rights as your own.
Schedule 9A limits that process. Those limits can prevent a small or indirect link from changing the result.
What the official source says
HMRC’s manual explains that the wider company-control rules can attribute certain rights and powers to a person. Paragraph 10 of Schedule 9A then narrows that approach for this SDLT test.
- Business partners cannot pass rights between themselves merely because of their partnership.
- Where a UK-resident spouse or civil partner lives with the other partner, that person’s rights cannot pass to the other partner for this purpose.
- This limit applies when the other partner is non-UK resident for the property purchase.
- Where the interest in the company is de minimis, meaning very small under the full statutory test, its holder cannot pass rights.
- The interest must be below 5% of share capital or issued share capital.
- It must also be below 5% of voting rights.
- It must also give a right to less than 5% of distributed company income.
- On a winding-up, or in similar circumstances, the company must make less than 5% of the then-available assets available under that right.
All four 5% tests matter. Voting rights below 5% alone do not put a person within the de minimis limit.
For the income test, rights held as a loan creditor do not count. This is a specific rule, not a general statement that company loans never matter.
What this means in practice
Start with the company, then look behind it. You may need to map who holds shares and votes, who has rights to income and assets, and whether any agreement changes those rights.
A simple percentage on a Companies House record may not give the whole answer.
What is the key point? You must test each type of right separately. A person can have a small shareholding but stronger rights under an agreement.
- Check options and other rights to obtain shares, not only shares already owned.
- Check voting deals, including rights held through another person.
- Check who would receive income if all company income were paid out.
- Check who would receive assets if the company closed.
- Do not assume a business partner’s rights automatically count as yours.
- Do not assume a spouse’s or civil partner’s rights always count either.
This does not mean the company will avoid the surcharge. It means this part of the control test must use the limits Parliament set.
How to analyse it
Work through the facts in a set order. This avoids treating small interests as decisive.
The law may exclude them.
- Identify each person who may have rights or powers connected with the company.
- List shares held now and shares that each person can obtain.
- List voting rights, income rights and rights to company assets.
- Consider whether wider company-control rules would count another person’s rights as that person’s rights.
- Apply the limits in paragraph 10 before deciding the non-UK control question.
- For a possible de minimis interest, test every one of the four 5% measures.
- For spouses and civil partners, check whether they were living together on the relevant date.
The law normally treats married couples and civil partners as living together. The law makes exceptions where they are separated by a court order, by a deed of separation, or in fact on a likely permanent basis.
Example
Imagine Priya lives outside the UK and has a 3% shareholding in a company buying a flat, with 3% of the votes, a right to 3% of income if it is all paid out, and a right to 3% of assets if the company closes.
Each measure is below 5%.
In these circumstances, Paragraph 10 prevents her from attributing her rights to another person for this purpose. Now change one fact. If she has exactly 5% of the votes, the interest is no longer below 5%, so it is not de minimis.
Why this can be difficult in practice
People often focus only on shares. That is the part they can see.
You must test votes, income and assets separately, and agreements outside the share register can matter where they give someone rights that the register does not show.
Relationship facts can also be sensitive. Marriage alone does not answer the question.
The law has a specific test for whether a couple count as living together.
- A 4% shareholding does not settle the result if voting or asset rights are higher.
- Exactly 5% is not less than 5%.
- For the income limb described here, the rules ignore a loan creditor’s rights only.
- Business partners are excluded only where they are business partners only.
- The wider non-UK control test determines the result, and this manual page does not fully cover that test.
Key takeaways
- Small company interests need four separate below-5% checks.
- Some family and business links cannot be used to pass rights between people.
- Company records and private agreements may both be needed to reach the right answer.
Technical analysis
For advisers, and for anyone who wants to check the law behind this page. You do not need this section to understand the guidance above.
Legislation
- FA 2003 Schedule 9A para 10 — limits on attributed rights for company non-UK control
- an Act of 2010 we do not have an identifier for section 451 — rights treated as held for company control tests (no link: an Act of 2010 we do not have an identifier for)
- an Act of 2007 we do not have an identifier for section 101 — when spouses or civil partners count as living together (no link: an Act of 2007 we do not have an identifier for)
Official guidance
The pages below are HMRC’s guidance. Guidance is not law. It sets out how HMRC reads the legislation, and it is not binding on you, on a tribunal or on a court. Where guidance and the legislation differ, the legislation wins. HMRC can also change or withdraw guidance, and it may not cover your facts.
Where this is not settled
- Whether a particular right, option, family connection or company arrangement leads to attribution can depend on the full facts and the wider company-control rules.
- This page does not set out the other conditions for deciding whether a company is non-UK controlled.
Evidence you would need
This kind of case is decided on the facts of the individual property. These are the records that usually settle it, and the ones an adviser would ask you for.
- The company’s share register and any rights to acquire shares
- Voting arrangements and shareholder agreements
- Rights to company income and assets on a winding-up
- Details of business partnerships and family relationships
- Evidence of whether spouses or civil partners were living together on the relevant date
Explore this with an AI
Readers often want to test their own situation. Copy the prompt below into ChatGPT, Claude or Gemini. It hands the model the actual legislation for this page rather than letting it answer from memory, and tells it to be explicit about what is uncertain. What comes back is information, not advice – check it against the links above.
I am researching UK Stamp Duty Land Tax (SDLT), which applies in England and Northern Ireland. MY QUESTION Company control and the non-resident stamp duty surcharge [Replace this with your own situation: what you are buying, the price, the dates, who the buyer is, and what you plan to do with the property.] THE LAW THIS TURNS ON - FA 2003 Schedule 9A para 10 - limits on attributed rights for company non-UK control https://www.legislation.gov.uk/ukpga/2003/14/schedule/9A/paragraph/10/2025-11-17 - an Act of 2010 we do not have an identifier for section 451 - rights treated as held for company control tests - an Act of 2007 we do not have an identifier for section 101 - when spouses or civil partners count as living together HMRC's guidance page on this topic (guidance, not law): https://www.gov.uk/hmrc-internal-manuals/stamp-duty-land-tax-manual/sdltm09925 HOW I WANT YOU TO ANSWER 1. Work from the legislation above. Read it before answering. HMRC guidance is HMRC's view of the law, not the law, and does not bind a tribunal or a court. 2. Tell me what the rule actually requires, in plain English. 3. Tell me which facts decide the answer, and which facts would change it. 4. Tell me what evidence I would need to support the position. 5. Be explicit about anything unsettled or fact-sensitive. Do not guess. 6. Your training data has a cutoff and SDLT rates and reliefs change at fiscal events. Say so if you are not sure the law is current. POINTS ALREADY KNOWN TO BE UNCERTAIN ON THIS TOPIC - Whether a particular right, option, family connection or company arrangement leads to attribution can depend on the full facts and the wider company-control rules. - This page does not set out the other conditions for deciding whether a company is non-UK controlled. Do not give me a conclusion you cannot support from the provisions above.
Legislation links show Finance Act 2003 as it stood on 2025-11-17. The law may have changed since, and the rules that apply are those in force on the date of your transaction. The official guidance this page is based on is here.
This page was last updated on 31 August 2026
Useful article? You may find it helpful to read the original guidance here: Company control and the non-resident stamp duty surcharge
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