The Commissioners for HMRC v Gerald Lee
[2023] UKUT 242 (TCC)
Benjamin Cohen v The Commissioners for HMRC
30 January 2023
[2023] UKFTT 90 (TC)
First-tier Tribunal
Mr. Cohen bought a new house (Luna Court) and tried to avoid paying extra tax by saying it replaced his old house (Sherrard Road). He only lived in the old house for 10 days. The judge said he didn't really live there, so he had to pay the extra tax.
Key Facts
- •Mr. Cohen appealed a closure notice for higher-rate Stamp Duty Land Tax (£15,045) on his purchase of Luna Court.
- •The dispute centered on whether Luna Court was a replacement for Mr. Cohen's only or main residence (Condition D of Schedule 4ZA, Finance Act 2003).
- •Mr. Cohen briefly occupied Sherrard Road (10 days) before selling it and purchasing Luna Court.
- •The enquiry was opened on August 14, 2019.
- •Mr. Cohen's last known address on file with HMRC was his parents' address (Alderton Hill).
Legal Principles
Stamp Duty Land Tax higher rate applies if conditions A-D in Schedule 4ZA, Finance Act 2003 are met.
Schedule 4ZA, Finance Act 2003
An enquiry can be opened within nine months of the Stamp Duty Land Tax return filing date.
Section 76 and Schedule 10, paragraph 12(2)(a), Finance Act 2003
Documents can be served at an individual's usual or last known place of abode.
Section 84, Finance Act 2003
Service by post is deemed effective upon proper addressing and posting, unless proven otherwise.
Section 7, Interpretation Act 1978
Determining whether a property is a 'residence' is a question of fact and degree, considering factors beyond mere occupation.
Frost v Feltham, Oliver v HMRC, Goodwin v Curtis
Outcomes
Appeal dismissed.
The enquiry was opened within the statutory timeframe, even considering service of notice at the last known address. Sherrard Road was not deemed Mr. Cohen's only or main residence due to the short occupation period and his prior decision to sell it before moving in.