Commercial Property in Pensions – have you been an unknowing victim of bad advice?
For a business owner who owns their own premises, it makes eminent sense to contribute it to a pension fund or buy it with transferred and borrowed capital and then lease it back to the business. It is a well-trodden path and quite rightly so.
In an uncertain world, the asset protection benefits of parking a valuable asset in a pension are manifest. Add that to tax-free growth from the day or transfer and no tax on the rents and we have a cracking package that thousands have benefited from.
If that’s all true; why am I writing a blog article about it? It’s all good right? There’s nothing to see here.
All of the above remains true, but, hidden within the benefits, in almost all cases, there was a mistake made at the start which has probably diluted the value of the fund and caused an overpayment of tax for which someone can be held to account.
There is a generalised belief among solicitors that the transfer of a commercial property to a pension, or it’s purchase by a pension comes with a charge to Stamp Duty Land Tax. That belief is just plain wrong. Where property passes from multiple owners into a pension the applicable rate of SDLT is nil, zero, or nothing, whichever is the least amount.
If you are a financial advisor, pension trustee or solicitor who may be affected then offence is the best form of defence. You should consider engaging with the problem, minimizing reputational damage, and proactively protecting your clients.
- If you, along with other persons, have transferred, or sold, commercial property to a pension in the last 13 years; you may have been given bad advice.
- If you are a financial advisor, solicitor, or pension trustee who has been involved in such transactions and you want to proactively look after your clients, you need to make a plan.
The above is not theory, it’s fact. In the test cases taken to HMRC, they have agreed.
The time to act is now.