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Partnership - PIP - debt

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confused...

Posted on:
05/02/14 12:25
Subject: Partnership - PIP - debt

We have an LLP property investment partnership with 3 members. There will be a change of members with 2 leaving and 2 new ones joining. One of the new members will be taking on responsibility for the debt. No money is actually changing hands or being withdrawn from the LLP.

Under para 14 of sch 15, this will be a type A transfer only if "consideration in money or money's worth is given". Para 8 of sch 4 deems the assumption of debt to be chargeable consideration. However, going back to sch 15, if it is a type A transfer the chargeable consideration would the % of market value acquired by the new member.

Do the sch 4 provisions mean that "consideration is given" so that we are a type A transfer? If no consideration is given, no SDLT is due as the property was acquired from an unconnected third party and won?t be relevant partnership property if it's a type B transfer.
Patrick

Posted on:
16/07/14 16:31
Subject: RE: Partnership - PIP - debt

The assumption of debt will be consideration and so I'm afraid that you have a Type A transfer. It's interesting that in most if not all admissions of new partners they will automatically assume liability for the debts whether or not there is a formal assumption.
Nick Beecham

Posted on:
22/07/14 16:54
Subject: RE: Partnership - PIP - debt

Patrick

I think there is some ambiguity here. If the facts are that one of the new members is directly taking on liability for debt, then I agree that this amounts to actual consideration and therefore a Type A transfer. However, if the facts are that the LLP's indebtedness to a 3rd party remains unchanged and the new member simply takes over a share in that LLP (and so, indirectly, a share of the indebtedness) I would not see that as the provision of actual consideration (particularly in the light of Swayne v CIR CA, [1900] 1 QB 172) and it is actual consideration not chargeable consideration which triggers Para 14(3A)(b) Sch 15.
Patrick

Posted on:
22/07/14 17:13
Subject: RE: Partnership - PIP - debt

Nick, thanks and I agree with your analysis but I would be nervous about HMRC going along with it. I guess a lot would depend upon the wording of the admission to partnership/transfer document and it might be that a little finessing would assist here.
On a separate matter you may be interested that I have already used the UT decision in Portland Gas Storage to generate an appeal in what was otherwise an out of time claim. Well done to you and Michael Thomas!
Nick Beecham

Posted on:
22/07/14 17:24
Subject: RE: Partnership - PIP - debt

Many thanks Patrick

By the way, in Portland Gas Storage, HMRC have applied for permission to appeal to the Court of Appeal.
Patrick

Posted on:
23/07/14 07:23
Subject: RE: Partnership - PIP - debt

Thanks and I imagine that they are keen to close this down asap!
Nick Beecham

Posted on:
28/07/14 11:33
Subject: RE: Partnership - PIP - debt

Update: The UT has refused HMRC permission to appeal. HMRC has 28 days to seek permission from the Court of Appeal.

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