LBTT Guidance on Tax Relief for Alternative Property Finance with Lease Arrangements

LBTT Relief for Alternative Property Finance Using a Lease or Sub-lease

This relief is intended to stop lease-based alternative property finance arrangements being taxed more heavily than a normal mortgage-funded purchase. Where a financial institution buys the property, leases or sub-leases it to the customer, and later transfers it to that customer, LBTT relief can apply to the lease and final transfer if strict conditions are met.

The arrangement must usually involve three linked steps: the financial institution buys a major interest in the land, grants a lease or sub-lease to the customer, and agrees to transfer the property to the customer at the end.
The second transaction and the final transfer can be relieved from LBTT, but the first transaction is generally still chargeable unless a separate relief for that first step applies.
Relief for the later transactions depends on the earlier steps having been handled correctly, including payment of any LBTT due on the first transaction.
For the final transfer to qualify, the property interest must remain with a financial institution and the lease or sub-lease must remain with the customer throughout the period before transfer.
The relief is not available in some cases, including where certain other reliefs apply or have been withdrawn for the first transaction, or where connected arrangements involve someone acquiring control of the financial institution.
The first and third transactions remain notifiable, and the special rules also prevent the final transfer from being taxed early as substantial performance or as an option.

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LBTT Guidance on Tax Relief for Alternative Property Finance with Lease Arrangements

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LBTT relief for alternative property finance using a lease or sub-lease

This page explains a specific Land and Buildings Transaction Tax relief for alternative property finance arrangements. It applies where a financial institution buys property, leases or sub-leases it to the customer, and is expected to transfer the property to that customer at the end. The aim is to stop the structure creating extra LBTT charges simply because the finance is arranged differently from a conventional mortgage.

What this rule is about

In a standard purchase funded by a mortgage, there is usually one main land transaction for tax purposes: the buyer acquires the property. In some alternative finance structures, there are instead several land transactions:

the financial institution buys the property,
the institution grants a lease or sub-lease to the customer, and
the institution later transfers the property to the customer.

Without special rules, that sequence could trigger LBTT more than once. Schedule 7 to the LBTT(S)A 2013 provides relief so that, if the statutory conditions are met, the overall tax result broadly matches the result for an ordinary mortgage-funded purchase.

What the official source says

The official guidance says this relief applies where:

a financial institution acquires a major interest in land,
it then grants a lease or sub-lease of that interest to a person, and
it agrees that, at the end of the term, it will transfer the property to that person.

The relief works by relieving the second transaction and the third transaction from LBTT, provided the statutory conditions are met. The rules also disapply the usual substantial performance treatment for the third transaction, and say that the third transaction is not treated as the grant of an option for the purposes of the LBTT rules on options and rights of pre-emption.

The first transaction, being the financial institution’s purchase of the major interest, will generally still be chargeable to LBTT. However, the guidance says relief for that first transaction may also be available in two cases:

where the seller is the same person who enters into the arrangements, or
where the seller is another financial institution that acquired the interest under equivalent arrangements with that person.

The guidance also says this form of relief is not available in certain cases. In particular, it is not available:

if group relief, reconstruction relief or acquisition relief is available for the first transaction, or has been withdrawn from the first transaction, or
if the arrangements, or connected arrangements, involve someone acquiring control of the financial institution.

For the control test, the legislation adopts the corporation tax definition of control in section 1124 of the Corporation Tax Act 2010.

What this means in practice

The practical effect is that, if the structure fits the legislation and the conditions are followed through properly, the lease or sub-lease to the customer and the later transfer to the customer should not themselves create further LBTT charges.

That matters because these arrangements involve multiple legal steps. The relief is designed to prevent those extra steps from producing extra tax merely because the finance is structured through a financial institution holding the property first.

But the relief is conditional. In particular:

relief on the second transaction depends on the requirements for the first transaction being met, including payment of any LBTT due on the first transaction,
relief on the third transaction depends on the requirements for both the first and second transactions being met, and
between the second and third transactions, the property interest acquired under the first transaction must remain held by a financial institution, and the lease or sub-lease granted under the second transaction must remain held by the person.

So this is not just a question of how the arrangement starts. The position must remain compliant throughout the period between the lease grant and the final transfer.

How to analyse it

A sensible way to analyse the relief is to work through the transactions in order.

1. Identify whether the arrangement has the right structure

Ask whether there are three linked steps of the kind described in the legislation:

a financial institution buys a major interest in land,
that institution grants a lease or sub-lease to the customer, and
there is an agreement that the institution will transfer the property to the customer at the end of the term.

If that basic structure is not present, this relief may not be the right one.

2. Check whether the relief is blocked from the outset

Ask whether the first transaction involves group relief, reconstruction relief or acquisition relief. If so, this alternative property finance relief is not available. The same applies if one of those reliefs was available for the first transaction but was later withdrawn.

Also ask whether the arrangements include any plan, or connected plan, under which someone acquires control of the financial institution. The legislation treats connected arrangements widely: they include arrangements entered into in connection with the alternative finance arrangements, including arrangements involving other persons as well as the direct parties.

3. Consider the first transaction separately

The first transaction is generally chargeable to LBTT. It should not be assumed that the whole arrangement is automatically tax-free. In some cases, relief for the first transaction may be claimed, but that depends on who the seller is and whether the statutory conditions for that relief route are met.

4. Consider the second transaction

The lease or sub-lease can be relieved, but only if the conditions relating to the first transaction have been complied with. The guidance specifically mentions payment of any LBTT due on the first transaction. If the first transaction has not been dealt with correctly, the second transaction relief may fail.

5. Consider the third transaction

The final transfer can also be relieved, but the conditions are tighter. The requirements for both earlier transactions must have been met. In addition, throughout the period between the second and third transactions:

the major interest bought under the first transaction must be held by a financial institution, and
the lease or sub-lease must be held by the customer.

If those conditions stop being true at any point, relief on the third transaction may not be available.

6. Check the special treatment of the third transaction

The guidance says the third transaction is not treated as substantially performed unless and until it is actually entered into. This is important because it prevents an earlier LBTT charge arising merely because the customer has rights under the arrangement before the final transfer is executed.

The guidance also says the third transaction is not treated as an option under the LBTT rules on options and rights of pre-emption. That helps prevent the arrangement from being taxed under the wrong set of rules.

7. Understand the exempt interest rules

The financial institution’s interest resulting from the first transaction is treated as an exempt interest. That means any transfer of that exempt interest is not chargeable and is not notifiable.

But this needs to be read carefully. The guidance also makes clear that:

the first transaction itself is not made exempt by these rules,
the third transaction is not itself an exempt interest, and
those transactions remain notifiable even where relief is available.

So the exempt-interest treatment is narrower than it may first appear.

Example

Illustration: a financial institution buys a property from a seller. It then grants a lease of the property to the customer under an alternative finance arrangement. The arrangement provides that at the end of the term the institution will transfer the property to the customer.

If the statutory conditions are met, the institution’s purchase is the first transaction and may be chargeable to LBTT, although relief for that transaction may be available in the cases described by the legislation. The grant of the lease to the customer is the second transaction and can be relieved if the first transaction has been dealt with correctly, including any LBTT due on it being paid. The final transfer to the customer is the third transaction and can also be relieved if the earlier conditions continue to be met and the property interest remains with a financial institution while the lease remains with the customer until the transfer takes place.

Why this can be difficult in practice

The main difficulty is that the relief depends on both the legal structure and what happens over time.

Several points can be easy to miss:

the first transaction may still carry an LBTT charge, so it is wrong to assume the whole structure is automatically relieved,
relief on the later transactions can depend on the first transaction having been correctly handled, including payment of tax due,
the third transaction relief depends on continuous conditions being met between the second and third transactions,
the anti-avoidance style restriction about acquiring control of the financial institution can require a careful look at wider connected arrangements, not just the property documents, and
the exempt-interest rules are limited and do not remove notification requirements for the first and third transactions.

Another practical difficulty is that the guidance refers to relief being available for the first transaction in defined cases, but the exact application depends on the underlying statutory provisions in schedule 7. So the detailed legal analysis may need to focus closely on who sold the property to the financial institution and how that seller came to hold it.

Key takeaways

This relief is designed to stop lease-based alternative property finance arrangements suffering more LBTT than a conventional mortgage-funded purchase.
The second and third transactions can be relieved, but only if the statutory conditions are met and continue to be met.
The first transaction is generally still chargeable unless a specific relief for that transaction applies, and the first and third transactions remain notifiable.

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LBTT Guidance on Tax Relief for Alternative Property Finance with Lease Arrangements

LBTT Guidance on Tax Relief for Alternative Property Finance with Lease Arrangements

LBTT Relief for Alternative Property Finance Using a Lease or Sub-lease

Read the original guidance here:

LBTT relief for alternative property finance using a lease or sub-lease

What this rule is about

What the official source says

What this means in practice

How to analyse it

1. Identify whether the arrangement has the right structure

2. Check whether the relief is blocked from the outset

3. Consider the first transaction separately

4. Consider the second transaction

5. Consider the third transaction

6. Check the special treatment of the third transaction

7. Understand the exempt interest rules

Example

Why this can be difficult in practice

Key takeaways

Useful article? You may find it helpful to read the original guidance here: LBTT Guidance on Tax Relief for Alternative Property Finance with Lease Arrangements

How it works

Great Feedback!

Professional Advice? Or overpaid SDLT, LTT, or LBTT?

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