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TonyTax
TonyTax, Tax Consultant
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Experience:  Inc Tax, CGT, Corp Tax, IHT, VAT.
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I am in the process of selling my house in London which is

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I am in the process of selling my house in London which is jointly owned with my father, although there is no defined percentage of ownership on the deeds. I was unable to get a mortgage for the borrowed amount at the time of purchase so my father acted as a guarantor. During the seven years of ownership he has never lived at the property but it has been my sole residence and all mortgage payments have been made by myself.
I am now buying another house (solely in my name) and the proceeds of the sale will largely be put towards the purchase of the new house although as it's not in London there will be some money left over.
My question is: is my father liable to pay capital gains tax on his 'proportion' of the profit, even though we've jointly instructed the solicitor to pay all proceeds directly into my bank account?
Submitted: 2 years ago.
Category: Tax
Expert:  TonyTax replied 2 years ago.
Hi.

Can you tell me whether the property is owned between you and your father as joint tenants or tenants in common please.
Customer: replied 2 years ago.

Hi - I think it's joint tenants.

Expert:  TonyTax replied 2 years ago.
Thanks.

Leave this with me while I draft my answer. It will take a while so please bear with me. You may received emails telling you to provide more information as I have posted this as an Info Request. These are system generated so unless you see a question from me you can ignore them.
Customer: replied 2 years ago.

Ok - no problem.

Thanks

Expert:  TonyTax replied 2 years ago.

Hi again.

I'm afraid that as you and your father appear to own the property jointly then, whereas your share of the gain will be covered by principle private residence exemption, his share of the gain will be subject to Capital Gains Tax. In the absence of any legal document setting out the ownership shares whether the property is owned as joint tenants or tenants in common, HMRC are likely to argue that it was owned on a 50:50 basis. Where the disposal proceeds end up is irrelevant.

I'm assuming that the property was bought more than two years ago. Otherwise, an election by your father for property you live in to be treated as his main residence would be possible though for it to be effective he would have had to have lived in it at some point which isn't the case.

Had your father simply lent you the money to buy the property with that loan being secured on it then there would not be an issue. You might try to argue that the intention was that the property was always yours as evidenced by the fact that your father was simply your mortgage guarantor, you made the mortgage payments, that his name was on the deeds at the behest of the lender if that was the case and that he had no desire to profit from the arrangement. It could also be argued that he merely held half the property in trust for you which may have complications of its own but unless there is documentation to back that up, I doubt that HMRC will accept either of them.

Whilst I wouldn't encourage you to do so, if you and your father decided to assume the gain was all yours and that he would not disclose half the gain to HMRC as his, then they may pick that up years later. You would then need to argue or have a tax professional to argue your case in front of a tax tribunal if it got that far. An alternative to the sleepless nights that may cause is to consult a specialist property tax lawyer to see if there is anything you can do now though I cannot think of any way out of your predicament myself I'm afraid.

I'm sorry to have confirmed your worst fears. Let me know if you have any further questions.

TonyTax, Tax Consultant
Category: Tax
Satisfied Customers: 15840
Experience: Inc Tax, CGT, Corp Tax, IHT, VAT.
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