Mortgage Broker Article on Incorporation Relief Misses Critical Warnings

Mortgage Broker Article on Incorporation Relief Misses Critical Warnings

14:14 PM, 24th March 2025, About 2 months ago 15

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Two landlords have recently brought to our attention a blog published by MF Brokers, written by Sean Hughes of Comprehensive Tax Planning. The article provides a surface-level overview of Incorporation Relief but omits crucial technical guidance found in professional tax literature and HMRC’s own manuals.

Given the wide readership of this broker’s content—and the growing influence of voices critical of landlord tax planning—we believe it’s important to clarify what the article gets wrong or fails to mention.

What’s Missing?

The article fails to reference several key technical points, including:

  • Simon’s Taxes B9:114, published by Lexis Nexis, which warns that if the company arranges new financing and uses it to repay the proprietor, HMRC may treat this as consideration, which could partially disqualify the transfer from incorporation relief under TCGA 1992 s162.
  • CG65745, HMRC’s own guidance confirming that liabilities “taken over” by the company under “indemnityare valid for the purposes of s162.

Why This Matters

This blog was published by a prominent mortgage intermediary, and its framing appears to reflect the interests of lenders—specifically, an incentive to encourage clients to arrange new borrowing. That bias is understandable commercially but does not justify mischaracterising or omitting accepted technical risks.

Articles like this risk misleading landlords and advisers alike into believing that refinancing with new company borrowing is risk-free, when in fact it could result in the loss of incorporation relief, unexpected Capital Gains Tax liabilities, and future compliance issues.

Context and Tone

It’s worth noting that Sean Hughes has closely aligned himself with other critics of landlord incorporation, including Dan Neidle. The tone and content of this article suggest a continuing trend of commentary that selectively presents technical material, often in ways that align with a particular agenda or client base.

We continue to observe that many in the mortgage industry either misunderstand or ignore the established best practice set out in Simon’s Taxes and Lexis Nexis, particularly where that guidance is inconvenient to their commercial model.

What to Do

If a mortgage broker, lender, or adviser references this article or makes similar claims:

  • Refer them to Simon’s Taxes  B9:114 and HMRC manual CG65745

  • Explain the risk of invalidating incorporation relief by using new financing in the company name to incorporate a rental property business.

Property118 is not currently advising landlords on s162 incorporations and will not do so until HMRC respond to the unanswered questions/concerns raised by the Chartered Institute of Taxation (CIOT) in February 2024 and the matter of DOTAS Scheme Reference Numbers has been heard by the Tax Tribunal service. However, we will continue to provide robust responses to misleading commentary that risks affecting the financial and legal position of landlords considering s162 incorporation of their rental property businesses.

TECHNICAL

Simon’s Taxes B9:114

“The incorporation of a buy-to-let property business may involve refinancing the existing mortgages which could possibly prevent HMRC applying ESC D32. If the company does not assume the same liabilities of the transferor, but instead raises finance of its own, which is passed to the transferor to settle its debts related to the properties being transferred, there is considerable risk that HMRC might choose not to apply its concession.”

The above expert guidance from Simon’s Taxes is clearly derived from HMRC’s explanation of ESC D32 in CG65745, in particular the words “indemnity” and “taken over”.

The transferor is not required to transfer business liabilities to the company but often does so. This is normally done in practice by the company giving the transferor an indemnity in respect of those liabilities.

In strictness, business liabilities taken over by the company represent additional consideration for the transfer and relief under TCGA92/S162 should be restricted. However, ESC/D32 enables any business liabilities taken over by the company to be ignored when quantifying `other consideration’ in recognition of the fact that the transferor is not receiving cash to meet any tax liabilities on the transfer and that the shares in the company are worth less than if the business had been transferred unfettered by liabilities.

ESC/D32

“Where liabilities are taken over by a company on the transfer of a business to the company, the Revenue are prepared for the purposes of the ‘rollover’ provision in TCGA 1992 s 162, not to treat such liabilities as consideration. If therefore the other conditions of s 162 are satisfied, no capital gain arises on the transfer. Relief under s 162 is not precluded by the fact that some or all of the liabilities of the business are not taken over by the company.


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Mark Alexander - Founder of Property118

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23:29 PM, 25th March 2025, About 2 months ago

Reply to the comment left by Tony Gimple at 25/03/2025 - 15:46
Tony, the key distinction here is that the incorporation structures supported by Property118 are firmly grounded in HMRC manuals, established case law, and authoritative sources such as Simon’s Taxes. In contrast, the “Hybrid LLP” model you promoted while a Director at Less Tax 4 Landlords lacked any such technical foundation.

To this day, I’ve seen no credible tax authority or HMRC guidance to support the core claims made under that model, including:

1) That property values could be re-based for CGT calculation purposes.

2) That the LLP structure converted property investment activity into a trade qualifying for IHT relief, including BADR.

3) That the structure circumvented the finance cost restrictions introduced under s24.

For years, we consistently warned that partial transfers to a corporate member of an LLP could attract both CGT and SDLT, and that the Transfer of Income Streams rules under Schedule 25 FA 2009 could also apply.

You also dismissed the incorporation planning we supported—despite it being backed by published guidance and decades of established tax practice.

So no, it’s no surprise we never agreed. One approach followed established precedent and professional guidance. The other simply did not.

Mark Alexander - Founder of Property118

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12:58 PM, 28th March 2025, About 2 months ago

Reply to the comment left by at 25/03/2025 - 18:35
I think I probably agree with the sentiment of your comment, particularly that MFB added the financing offer. However, it was very convenient for MFB that the risk based guidance in Simon's Taxes and references to the HMRC manuals were missed out from the risk warning section of the article, don't you think?

I would hate to think that 10's of thousands of landlords, lenders, lawyers and Accountants could read this article and conclude that raising new finance in a company name to repay existing private financing at the point of incorporation carries no risk of HMRC refusing ESC/D32 on the amount of the new financing, because the CGT due on that could be a devastating number for any landlords with high debt values.

jonney

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17:00 PM, 30th March 2025, About 2 months ago

Like Homemaker I am also confused as I have just read the article by Sean Hughes and see no criticism of other advisors or their schemes - have I misread it?

He gives 2 tips - make sure you do enough hours to qulaify of incorporation relief and use an experienced tax advisor. He is a Chartered Tax Advisor so maybe drumming up his own business but I cannot see the point of this 118 article as they aren't being critcised in it!!

Mark Alexander - Founder of Property118

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18:28 PM, 30th March 2025, About 2 months ago

The point of the article isn’t to be defensive, it’s a caution to the mortgage industry that the perception of financing at incorporation is far from risk free and carries high risks as reported by highly credible sources.

Tony Gimple

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11:22 AM, 1st April 2025, About 2 months ago

Reply to the comment left by Mark Alexander - Founder of Property118 at 25/03/2025 - 23:29
Hi Mark,

Must we squabble over this. We've both come under HMRC's scrutiny - justified or not - and I did reach out to when it all kicked off to present a united front to the market.

Sadly, you're not one for compromise which is a great shame as between us much could have been achieved.

That said, it wasn't my (old) firm that got hit by a STOP notice.

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