Guidance on Determining Chargeable Consideration for Land Transactions Under LBTT

LBTT: what counts as chargeable consideration

For Scottish LBTT, chargeable consideration means the full value given for a land transaction, not just the price written in the contract. It can include cash, VAT, non-cash items, services, and amounts paid by connected persons. You must also separate out items that are not part of the land transaction, such as certain moveable contents, and fairly apportion any mixed deal.

• Chargeable consideration includes anything given in money or money’s worth for the property, whether paid directly or indirectly by the buyer or a connected person.
• It can cover more than the headline price, including VAT actually chargeable by the effective date, non-cash consideration, services, debt, and foreign currency amounts converted into sterling.
• Items that form part of the property, such as buildings and fitted bathroom or kitchen items, are included, but moveable items like freestanding furniture, carpets, curtains, and plants in pots are generally not.
• If one payment covers both the land transaction and other assets, or more than one transaction, the amount must be split on a just and reasonable basis, looking at the real substance of the deal.
• Deferred payments still count in full, and buyers should not assume LBTT only applies to the amount they personally fund if a grant or third party contributes.
• Special care is needed for employment-related transactions, where the taxable amount may not be less than the market value, and for cases involving leases, exchanges, linked transactions, works, or contingent consideration.

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LBTT: what counts as chargeable consideration

This page explains what “chargeable consideration” means for Land and Buildings Transaction Tax in Scotland. In simple terms, it is the value given for the land transaction. That matters because LBTT is charged on that amount. The rule is wider than just the price written in the contract, so it is important to identify everything being given for the property and to separate out anything that is not part of the taxable consideration.

What this rule is about

LBTT is charged on the chargeable consideration for a land transaction. The starting point is broad: it includes anything given in money or money’s worth for the subject-matter of the transaction, whether given directly or indirectly by the buyer or by a person connected with the buyer.

In an ordinary purchase of a house for cash, the chargeable consideration will usually be the agreed purchase price. But the legislation goes further than that. It can include VAT, non-cash consideration, services, and amounts paid by connected persons. It can also require apportionment where one overall deal covers more than one matter.

The guidance also highlights that some items form part of the land and some do not. This is important where a contract or missives include both the property and other assets.

What the official source says

The official guidance states that chargeable consideration comprises anything given in money or money’s worth for the subject-matter of the transaction, directly or indirectly by the buyer or a connected party.

It also makes the following points:

• In a standard house purchase, the figure will usually match the consideration shown in the disposition and registration application.
• Consideration includes amounts paid for assets that form part of the land or property, such as houses, farm buildings, fixtures and fittings. Bathroom and kitchen fittings are included. Moveable items such as freestanding furniture, carpets and curtains are not.
• Trees growing in the soil, and fruit growing on them, are part of the land. Normal annual crops of an arable farm, felled timber, and plants or trees in free-standing pots are not.
• If VAT is chargeable on the transaction, it is included in chargeable consideration. But if the seller merely had the option to charge VAT and had not exercised that option by the effective date, VAT that only becomes payable later is not included.
• If consideration is paid later, the amount agreed is still counted in full. There is no discount for deferred payment.
• If one amount of consideration relates partly to the land transaction and partly to something else, or to more than one land transaction, it must be apportioned on a just and reasonable basis.
• Where what is really one bargain has been split into separate amounts or separate transactions, the consideration must still be attributed across the whole bargain on a just and reasonable basis.
• Non-monetary consideration, and consideration consisting of debt, is generally valued at market value at the effective date, unless a different rule expressly applies.
• If consideration is in a foreign currency, it must be converted into sterling using the London closing exchange rate on the effective date.
• If the buyer gives services as consideration, the value is the amount that would have to be paid in the open market for those services, subject to a separate rule for certain public or education body arrangements.
• If the seller is the buyer’s employer, or the employer of someone connected with the buyer, and the transaction is entered into by reason of that employment, the chargeable consideration cannot be less than the market value of the property at the effective date.

The guidance also points to separate rules for exchanges, debt, works, contingent or uncertain consideration, annuities, connected company transactions, leases, and linked transactions.

What this means in practice

The practical question is not just “what is the purchase price?” It is “what is being given for the land transaction in substance?”

For many residential purchases, the answer is straightforward. If a buyer pays a fixed cash price for a house, and there are no unusual features, that cash price will usually be the chargeable consideration.

Problems arise where:

• the contract includes both land and other assets;
• part of the deal is non-cash;
• someone connected with the buyer is paying part of the value;
• the seller charges VAT;
• the deal has been split across documents or stated prices;
• payment is deferred;
• services are being provided instead of cash; or
• the transaction is connected with employment.

The guidance also contains an important practical warning about grants or assistance schemes. Even if another person or body is meeting part of the cost, LBTT is charged on the total chargeable consideration, and the buyer remains ultimately responsible for the LBTT. So a buyer should not assume that tax only applies to the amount they fund personally.

Another practical point is that fixtures and fittings are not all treated the same. Items that are part of the property remain within the land transaction. Moveable items may fall outside it. That distinction can affect the LBTT calculation where a contract allocates separate amounts to contents or chattels.

How to analyse it

A sensible way to analyse chargeable consideration is to work through the following questions.

• What exactly is the subject-matter of the land transaction? Identify the land or property interest being acquired.
• What is the buyer, or a connected person, giving for it? Look beyond the headline price.
• Is any part of the value non-cash? If so, consider whether it must be valued at market value.
• Does the consideration include VAT that is actually chargeable by the effective date?
• Is any payment deferred? If so, the delay does not reduce the amount counted.
• Does one overall payment relate partly to land and partly to something else, such as moveable items or another transaction? If so, apportion on a just and reasonable basis.
• Are separate prices or separate documents really part of one overall bargain? If they are, the legislation looks at substance, not just form.
• Are any services being provided instead of money? If so, value them by reference to open market cost.
• Is the transaction connected with employment? If it is, market value may be the minimum figure.
• Is any amount expressed in foreign currency? If so, convert it using the London closing exchange rate on the effective date.

Where the transaction involves leases, exchanges, debt, works, annuities, linked transactions, or contingent consideration, this general guidance is only part of the picture. The specific rules for those situations must also be checked.

Example

Suppose a buyer agrees to buy a farmhouse for a stated price, and the contract also includes bathroom fittings, kitchen fittings, freestanding sofas, curtains, and plants in outdoor pots.

For LBTT purposes, the farmhouse, the bathroom fittings, and the kitchen fittings are part of the land transaction. Freestanding sofas, curtains, and plants or trees in free-standing pots are not treated as part of the land on the basis described in the guidance. If one overall amount is paid for everything together, the total may need to be apportioned on a just and reasonable basis between the land transaction and the non-land items.

If part of the price is payable six months later, the deferred element is still counted in full. If VAT is properly chargeable on the transaction by the effective date, that VAT is also included.

Why this can be difficult in practice

The hardest cases are usually the ones where the documents do not reflect the real substance of the deal in a simple way.

One difficulty is apportionment. The guidance requires a “just and reasonable” apportionment, but that phrase does not produce a single automatic answer. The correct approach will depend on the facts, including what was actually being bought and sold and whether any stated split between items is commercially realistic.

Another difficulty is identifying whether something forms part of the land or is merely a moveable asset. Some items are clear from the guidance, but others may be more fact-sensitive.

Transactions involving grants or financial assistance can also be misunderstood. The source material makes clear that the buyer remains responsible for understanding the LBTT position, even where another person contributes to the purchase price or the tax.

Employment-related transactions need care as well. The market value floor applies where the transaction is entered into by reason of employment. That can raise factual questions about why the transaction took place.

Finally, this page is only a general gateway. Other rules may override or supplement it in particular cases, especially for leases, exchanges, debt, works, linked transactions, and contingent consideration.

Key takeaways

• Chargeable consideration for LBTT is wider than the stated cash price and can include money, money’s worth, VAT, non-cash value, and amounts given by connected persons.
• If one deal covers both taxable land and other matters, the consideration must be split on a just and reasonable basis, with substance taking priority over form.
• Deferred payment does not reduce the taxable amount, and special rules may apply for employment-related transactions, services, foreign currency, leases, exchanges, debt, and linked transactions.

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Useful article? You may find it helpful to read the original guidance here: Guidance on Determining Chargeable Consideration for Land Transactions Under LBTT

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