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SDLT and leases: five years and counting

27 November 2008
On 1 December 2008, Stamp Duty Land Tax (SDLT) celebrates its fifth birthday, but it may not be a case of many happy returns for some tenants. This fifth anniversary will bring into focus two parts of the existing rules on SDLT and leases, in some cases moving them up the priority ladder and in others seeing these rules impact for the first time. This could mean tenants having to pay more SDLT, or possibly claim a refund, for leases granted on or after the introduction of SDLT on 1 December 2003.

Rent in the first five years - variable or uncertain etc

Where the rent for the first five years of the lease cannot be worked out exactly at the outset, SDLT is paid up front on the basis of a reasonable estimate of the likely rent for the first five years. This could catch leases with turnover rents, rents dependent on profits of the business, or leases with rent reviews in the first five years which are not fixed, among others. Unfortunately with these types of leases, that may not be the end of the story as far as paying SDLT is concerned.

This is because on the earlier of:

  • The date when the actual amount of rent payable in the first five years can be worked out; or
  • The end of the first five years of the lease

The tenant must look over the original SDLT estimate and compare it with the SDLT payable based on the actual rent for the first five years.

There will be broadly three outcomes of this review for the tenant:

  1. If the original SDLT estimate was correct - no further action required
  2. If it turns out that the original SDLT payment was an underestimate - pay the extra SDLT and notify HM Revenue & Customs
  3. If it turns out that the original SDLT payment was an overestimate - claim a refund of the excess SDLT from HM Revenue & Customs

Abnormal rent increases after the first five years

Where there is a rent review more than five years from the start of the lease, that gives a rent increase which is abnormal, the tenant will have to pay further SDLT. abnormal here broadly means where the increase is equivalent to at least 20 per annum since the date of the start rent, or the date of any intermediate rent reviews or increases. If the tenant has an abnormal rent increase, it has to pay further SDLT, based on the amount of the increase and the remainder of the term.

Timings and deadlines

So because leases falling within SDLT will start to reach the end of their first five years for the first time, as of 1 December 2008 these rules need to be kept much more in mind.

For both of these situations, if a further payment of SDLT or a return has to be made to HM Revenue & Customs, it should be made within 30 days of the relevant trigger event, i.e. when you work out the actual rent payable for the first five years, or the end of that first five year period, or when an abnormal rent increase occurs. If that 30 day deadline is not met, interest and penalties may be charged in the usual way by HM Revenue & Customs.

Things to do now

Tenants should review their leases which were granted on or after 1 December 2003 and check the following:

  • Was the rent for the first five years uncertain or unknown at the outset?
  • If so, has that rent now been worked out exactly, or check when the first five year period ends
  • Do you need to pay more or claim a refund of SDLT as a result of this review
  • Diarise for any upcoming rent reviews taking place after the first five years of the lease, to check for any abnormal rent increases, and see if this could lead to further SDLT payments

Tenants should also do these checks where they have taken an assignment of a lease during its term. Whoever is the current tenant at the time will be responsible for any of these possible SDLT payments and filing requirements.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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