A guide to capital gains tax exemptions and the family home

A valuable relief exists on the sale of the family home, but in certain situations careful planning is required to ensure that the relief is obtained. The capital gains tax (CGT) exemption for gains made on the sale of your home is one of the most valuable reliefs from which many people benefit during their lifetime. In this article we look at the operation of the relief and consider factors that may cause it to be restricted.

Several important basic points

Only a property occupied as a residence can qualify for the exemption. An investment property in which you have never lived would not qualify.

The term 'residence' can include outbuildings separate from the main property, but this is a difficult area. Please talk to us if this is likely to be relevant to you.

'Occupying' as a residence requires a degree of permanence so that living in a property for say, just two weeks with a view to benefiting from the exemption is unlikely to work.

The exemption includes land that is for 'occupation and enjoyment with the residence as its garden or grounds up to the permitted area'. The permitted area is half a hectare including the site of the property which equates to about 1.25 acres.  Larger gardens and grounds may qualify but only if they are appropriate to the size and character of the property and are required for the reasonable enjoyment of it. This can be a difficult test. In a court case the exemption was not given on land of 7.5 hectares attached to a property. The owner said he needed that land to enjoy the property because he was keen on horses and riding. The courts decided that the owner's subjective liking for horses was irrelevant and, applying an objective test, the land was not needed for the reasonable enjoyment of the property.

Selling land separately

What if you want to sell off some of your garden for someone else to build on? Will the exemption apply? In simple terms, it will if you continue to own the property with the rest of the garden and the total original area was within the half a hectare limit.

Where the total area exceeds half a hectare and some is sold, then you would have to show that the part sold was needed for the reasonable enjoyment of the property and this can clearly be difficult if you were prepared to sell it off.

What if on the other hand you sell your house and part of the garden and then at a later date, sell the rest of the garden separately, say for development? Then you will not get the benefit of the exemption on the second sale because the land is no longer part of your main residence at the point of sale.

More than one residence

It is increasingly common for people to own more than one residence.  However, an individual can only benefit from the CGT exemption on one property at a time. In the case of a married couple (or civil partnership), there can only be one main residence for both. Where an individual has two (or more) residences then an election can be made to choose which should be the one to benefit from the CGT exemption on sale. Note that the property need not be in the UK to benefit, although there are additional restrictions from April 2015 detailed below. Also foreign tax implications may need to be brought into the equation.

Can you claim PPR relief on your property?

A person’s residence may not be eligible for Principle Private Residence relief (PPR) for a tax year, unless either:

• the person making the disposal was resident in the same country as the property for that tax year, or
• the person spent at least 90 midnights in that property.
• The rules apply to both a UK resident disposing of a residence in another country and a non-resident disposing of a UK residence.

New reporting and payment requirement

It is important to note that from 6 April 2020, those liable to CGT on the sale of a residential property, must send a new standalone online return to HMRC and make a payment on account of the tax due within 60 days of completion of the sale. These requirements do not apply if the gains are covered by PPR.

Business use

More and more people work from home these days. Does working from home affect the CGT exemption on sale? The answer is not straightforward - it may do!

Rather more helpfully, the basic rule is that the exemption will be denied to the extent that part of your home is used exclusively for business purposes. In many cases of course the business use is not exclusive, your office doubling as a spare bedroom for guests for example.

Where there is exclusive business use, then part of the gain on sale may be chargeable rather than exempt.  However, it may well be that you plan to acquire a further property, also with part for business use, in which case the business use element of the gain can be deferred by 'rolling over' the gain against the cost of the new property.

Residential letting

Prior to 6 April 2020, lettings relief gave up to £40,000 (£80,000 for a couple who jointly own the property) to someone letting part or all of a property which was their main residence or was their former main residence at some point in their period of ownership. However, under the revised rules lettings relief is only available where the owner and tenant share occupancy throughout the period of the let.

Periods of absence

Certain other periods of absence from your main residence may also qualify for CGT relief, if say you have to leave your property to go and work elsewhere in the UK or abroad. The availability of the exemption depends on your circumstances and length of period of absence. Please talk to us if this is relevant for you.

Trusts

The exemption is also available where a property is owned by a trust and occupied by one of the beneficiaries as their main residence.

Until December 2003, it was possible to transfer a property you owned but which was not eligible for CGT main residence relief, into a trust for say the benefit of your adult children. Any gain could be deferred using the gift relief provisions. One of your children could then live in the property as their main residence and on sale the exemption would have covered the entire gain.

HMRC decided that this technique was being used as a mechanism to avoid CGT and so blocked the possibility of combining gift relief with the main residence exemption in these circumstances.

How we can help

The main residence exemption continues to be one of the most valuable CGT reliefs. However, the operation of the relief is not always straightforward nor is its availability a foregone conclusion. Advance planning can help enormously in identifying potential issues and maximising the available relief. Please contact us if you have any questions about capital gains tax and the family home or would like specific advice relevant to your personal circumstances.