Overpayment relief provision can act as a back stop

The taxpayer entered into two contracts to buy Gordon House. The first was for an initial 25-year lease and the second was for a contracted-out lease for a 201-year term payable in four instalments. The initial lease was granted in October 2012 the contracted-out lease in April 2019. The taxpayer paid stamp duty land tax on the initial lease and the ‘substantial performance of the agreement’ for the contracted-out lease.

In April 2014 the taxpayer gifted the property to his brother NC who then became responsible for paying the remaining instalments as well as the stamp duty land tax on the contracted-out lease.

The taxpayer made two alternative claims for SDLT relief: he claimed relief under FA 2003 s 44 or overpayment relief under FA 2003 Sch 10 para 34. HMRC refused both.

The courts dealt with the s 44 appeal first...