Substantial Incorporation Structure™

Substantial Incorporation Structure™

The first driver to our development of landlord business restructuring was contained in s.24 of the Finance Act (No 2) 2015, variously known as “The Landlord Tax”, “The Tenant Tax”, or simply “section 24”.

In real terms, it meant that (uniquely to businesses in the private rented sector) sole trader or partnership businesses would not be able to claim finance costs against tax. Key to our strategy was the fact that rental businesses held in limited companies (Ltd) would still be able to claim 100% of finance costs as deductible expenses. However, as a company is treated as a separate person from its owners, there were three problems to overcome in moving properties from personal ownership to a company;

  • tax charge of CGT
  • tax charge of SDLT
  • refinancing any loans into the company

If your business is eligible we can solve these three issues, and transfer the business into a limited company with no immediate tax charge, and no need to lose your current mortgages.

We are the originators, with, of the Substantial Incorporation Strategy.


Whether you are a qualifying business or a mere investor is a question of fact. HMRC manuals say that they “accept that incorporation relief will be available where an individual spends 20 hours or more a week personally undertaking the sort of activities that are indicative of a business. Other cases should be considered carefully.”

These are the criteria that we assess in advising clients on their eligibility.

(a) whether the activity is a ‘serious undertaking earnestly pursued’,

(b) whether the activity is an occupation or function actively pursued with reasonable or recognisable continuity,

(c) whether the activity has a certain measure of substance,

(d) whether the activity was conducted in a regular manner and on sound and recognised business principles,

(e) whether the activity is predominantly concerned with the making of taxable supplies to consumers for a consideration,

(f) lastly, whether the taxable supplies are of a kind which, subject to differences of detail, are commonly made by those who seek to profit by them.

Once the properties are beneficially owned by the company their value is rebased to the incorporation date value for onward sale purposes, meaning any sales would be charged to Corporation Tax (currently 19%) but only on profit from the rebased value.

Stamp Duty Land Tax

If a business is a partnership the SIS is exempt from SDLT. The definition of a partnership is again a question of fact-“two or more persons engaged in business with a view to making profit”. There is no need for any written formalities, nor HMRC registration, to meet this legal test. We have acted for many husband and wife partnerships-so long as there is sharing of profits and sharing of liabilities in the business, and it passes the CGT tests above, it will qualify for SDLT exemption

Sole traders can still incorporate using the SIS, but will not obtain SDLT exemption.

Current mortgages

This strategy includes a transfer of the beneficial interests in the properties and all other assets to the company. Financing remains in personal names until it makes commercial sense to refinance into the company name. On this later refinancing to the company there is no CGT or SDLT payable, as they have been accounted for at the initial incorporation.

So for qualifying partnership businesses moving into a Limited Company is realistically achievable with no tax due or refinancing requirements.
It is also possible to structure the share issue as we do for Smart Companies, explained on the Smart Company page.