It can sometimes be a fine line that distinguishes the two but getting it wrong has important tax implications! As programmes like Property Ladder show, many people are keen to invest in property and are confident that they can make a sizeable profit by doing up a property and selling it on.
A property investor is liable to Capital Gains Tax on the difference between the original cost plus any enhancement expenditure and the disposal proceeds. The legal and other costs of acquisition and sale can also be deducted from the gain. However, loan or mortgage interest, maintenance or other running costs cannot be deducted from the gain but these can be claimed against any rent received from the property for income tax purposes. Any capital losses can only be relieved against other capital gains in the same or future tax years. An individual may buy a property to live in as his only or main residence and normally any gain on this property is exempt from Capital Gains Tax.
Tip: Do not tell everybody that you have bought the house which you live in to make a quick buck - you might find that you have an unexpected tax bill! If the intention was to make a quick profit then strictly the gain is taxable. Any gain is assessed to Capital Gains Tax after deducting the annual exemption (2020/21 £12300 and 2019/20 £12000) at an effective rate of between 18% and 28% for residential property or 10% and 20% for non-residential property, depending on the level of an individual’s income. It is unlikely that an investment property will qualify for Entrepreneur’s Relief at 10%.
After 5th April 2020, if a UK resident sells a residential property and there is Capital Gains Tax to pay, they need to make a return to HMRC and pay the Capital Gains Tax within 30 days of completion of the sale. Non-residents have to make a return within 30 days of the completion of a sale for any land and property sales made in the UK whether there is a Capital Gains Tax liability or not.
A property developer is treated as carrying on a trade and is liable to Income Tax and National Insurance on his/her trading profit. The trading profit would include a deduction for all expenses incurred wholly and exclusively in the course of the trade. So unlike the property investor, loan or mortgage interest would normally be an allowable expense in calculating the profit. However, if anyone helps the developer and they are an employee of the developer, PAYE/NIC would need to be operated. If they are self employed you would not be responsible for their PAYE/NIC. Any losses (provided that there was an intention of profit) can be relieved against other income. If the property development continues over more than one tax year then the income may be spread over those years. Assuming that the property developer is not a limited company, the rate of income tax after the personal allowance is either 20%, 40% or 45% depending on the total income. As a self-employed individual, he/she would also be liable to pay Class 2 National Insurance at a weekly rate and Class 4 National Insurance at a rate of 9% or 2% depending on the level of income. As already indicated a Capital Gain may be preferable to a trading profit. However, the potential to relieve a trading loss is much greater than for a capital loss.
A lot has to do with your intentions. If you buy a new property to let it out for the long term, then you will be a property investor. But what if I do some work on the property? This again will depend on a number of factors including the extent of the renovation work, the length of time that the property was held and let out. Let’s consider some examples:
Example 1 Simon buys a two bedroom property. His intention is to keep it as a long-term investment. He does the property up with a view to renting it out. However, due to changes in his personal circumstances, he sells the property after two years having completed the renovations, realising a profit of £20,000. Simon’s intention was to hold the property as an investment. Although he sold it after a relatively short period of time, the original motivating factor had not changed. The profit that he made on the property would be a chargeable gain and Simon would be liable to pay Capital Gains Tax on it.
Example 2 Bob buys a dilapidated property with a view to doing it up as quickly as possible and selling it on at a profit. He plans to reinvest any proceeds from the sale into further properties to do up and sell. Unlike Simon, Bob’s main motivation in buying the property is to make a profit from doing it up and selling it on. Looking at the intention behind the purchase suggests that Bob is trading as he buys and sells the property with a view to making a profit. Consequently, any profit made by Bob on the sale would be liable to income tax and National Insurance rather than Capital Gains Tax. In a climate where Capital Gains Tax rates are considerably lower than the highest rate of Income Tax, the attraction of realising a capital gain is apparent. It is important to ensure that the distinction between investing in property and trading as a property developer are correctly established. The last thing you want is an enquiry from HMRC.
You cannot pick which tax you pay. Whether you are trading is a question of fact and the normal badges of trade apply. The starting point for deciding whether there is trading or investment is the intention of the owner. Whilst the original intention of the owner is an important one, when deciding whether a person is trading HMRC will look at a variety of factors including the length of ownership; whether the purchase and sale is a one-off or there are a series of transactions; Whether the property has been rented out; Whether the property was acquired for personal enjoyment; and Whether there is an existing trade - for example, you are a builder buying a property to do up and sell. Together these will create a picture and help to determine whether you are trading or investing. If in doubt, you should seek professional advice. It has been known for a builder, who buys and moves into one property, does it up, sells it and moves on to the next property repeating the process a number of times, as being treated as trading. He thought that he was a property investor and as they were all his private residences, he would be exempt from tax!
© Thandi Nicholls Ltd 2020 All Rights Reserved - The above articles are provided for guidance only and may not cover your personal circumstances so you should not rely on them. It is important that you seek appropriate professional advice which takes into account your personal circumstances where you can provide the full facts of the case and all documents related to your case. Thandi Nicholls Ltd t/a uklandlordtax.co.uk, K Nicholls FCA or S Thandi cannot be held responsible for the consequences of any action or the consequences of deciding not to act.
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