SDLT 3% surcharge where main residence sale deferred under Mesher order in divorce?

SDLT 3% surcharge where main residence sale deferred under Mesher order in divorce?

10:35 AM, 12th October 2022, About A year ago 1

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Following my divorce, I would like to purchase a new property as my main residence and need to find out if the standard rate of stamp duty applies or if the ‘second home’ 3% surcharge applies to me. I have had various answers, my solicitors have said ask my accountant and my accountant says to ask my solicitors!

I would be buying the new home as a main residence. However, I still have interest in the family home under a Financial Remedies consent order made in February 2022 (I will receive 30% of the family home when sold in 2026).

The 3% surcharge apparently does not apply if I have a ‘Property Adjustment Order’ which is basically what the consent order does. It seems until November 2017 you would be liable for the higher rate of SDLT if buying a home but still had an interest in the family home but then that changed. This is the link to what HMRC says :

https://www.gov.uk/hmrc-internal-manuals/stamp-duty-land-tax-manual/sdltm09797

As part of the divorce a BTL / holiday let was transferred to me so it does mean I will own 2 properties but the BTL one is not my main residence and when it was purchased in 2018, we did pay the higher rate of SDLT. Will I have to pay the higher rate of SDLT on the purchase of my main residence?

Many thanks

Jac


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Neil Patterson

10:41 AM, 12th October 2022, About A year ago

Dear Jac,

I have added the HMRC flow chart.
However, you have 3 years to sell a main residence now to get a refund.

As you own an investment property then yes you will pay the 3% unless you are able to prove you have sold your current main residence, or get a refund if you sell it in the next 3 years.

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