Appeal reference: TC/2023/16623 |
TAX CHAMBER
88 Rosebery Avenue, London, EC1R 4QU. |
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Judgment Date: 27 March 2025 |
B e f o r e :
DR PHEBE MANN
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BEMAL PATEL |
Appellant |
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- and - |
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THE COMMISSIONERS FOR HIS MAJESTY'S REVENUE AND CUSTOMS |
Respondents |
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For the Appellant: Mr Sam Glover of counsel, instructed by Haslers Business Services LLP, Chartered Accountants
For the Respondents: Mrs Gemma Truelove, litigator of HM Revenue and Customs' Solicitor's Office
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Crown Copyright ©
STAMP DUTY LAND TAX – residential or non-residential property – whether property "in the process of being constructed or adapted" for use as a dwelling – planning permission constraints
Introduction
Procedural history
the facts
The background
"Part 1
The [Former Owner] hereby covenants with and Undertakes to the Council as follows so as to bind the [Elvaston development] only:-
Occupation restriction in relation to the [Elvaston] Development
1. Not to Occupy nor permit the Occupation of any part of [Elvaston] for the purposes authorised by the [the Elvaston development planning permission] until the [Queen's Gate development] has been Practically Completed in accordance with the [Queen's Gate development planning permission] and is ready for Occupation to the written satisfaction of the Executive Director [of Planning and Borough Development]."
Facts relating to the purchase
"We can confirm that the property currently comprises the building's 'shell' where the approved, extant, planning permission has been part implemented, with the basement excavation to … Elvaston Place having been completed and new concrete floors installed through both buildings, however we understand that certain works are still required."
The law
"116 Meaning of "residential property"
(1) In this Part "residential property" means—
(a) a building that is used or suitable for use as a dwelling, or is in the process of being constructed or adapted for such use, and
(b) land that is or forms part of the garden or grounds of a building within paragraph (a) (including any building or structure on such land), or
(c) an interest in or right over land that subsists for the benefit of a building within paragraph (a) or of land within paragraph (b);
and "non-residential property" means any property that is not residential property."
Discussion
"So, the focus of the enquiry made necessary by the wording in s 116 is to determine whether the essential characteristics and nature of the chargeable interest that is acquired are those of a dwelling…"
Decision
Right to apply for permission to appeal