James David Wood & Anor v The Commissioners for HMRC

1. The appellant appealed against an amendment made by HMRC in a closure notice dated 17 March 2023 which was issued pursuant to paragraph 23 of Schedule 10 of the Finance Act 2003 (“ ”). In the closure notice HMRC sought to impose additional stamp duty land tax (“ FA 2003 SDLT ”) on the appellants in respect of their purchase of a property (“ the Property ”). In HMRC’s view, the appellants incorrectly claimed “multiple dwellings relief” under schedule 6B of FA 2003 (“ MDR ”) in computing the SDLT due on the acquisition and, on the basis that MDR is not available, additional SDLT is due of £12,500.

2. Where MDR is available, SDLT is not charged by reference to the total consideration for the relevant transaction in land; rather it is computed using the average consideration for one dwelling and multiplying that amount by the number of dwellings comprised in the transaction. This usually results in a lower effective rate of SDLT overall (but the effective rate of tax cannot fall below 1%).

3. MDR is available under para 2(2) at Schedule 6B FA 2003 as follows: “ 2(2) A transaction is within this sub-paragraph if its main subject-matter consists of- (a) an interest in at least two dwellings, or (b) an interest in at least two dwellings and other property.”

4. A “dwelling” is defined for this purpose in para 7(2) as follows: “(2) A building or part of a building counts as a dwelling if— (a) it is used or suitable for use as a single dwelling, or (b) it is in the process of being constructed or adapted for such use.”

5. The legislation provides no further definition of dwelling however, the background note to the FA 2003 does make clear the intended purpose of the legislation as follows: “18. Clause 83 and Schedule 22 are designed to strengthen demand for residential property. They will reduce a barrier to investment in residential property, promoting the supply of private rented housing. They do so by reducing the amount of SDLT payable on a purchase of multiple dwellings, so that it is closer to that charged when purchasing those properties singly.”

6. The sole issue is whether, at the time of completion of the acquisition of the Property, for the purposes of schedule 6B, the Property comprised two dwellings, as the appellant argued, or only one single dwelling, as HMRC argued.

7. The parties both referred to the decision of the Upper Tribunal (“UT”) in Fiander and another v Revenue and Customs Commissioners , [2021] UKUT 156 (TCC) , [2021] STC 1482 (“ Fiander ”) and, in particular, the following comments, at [48], on the meaning of “suitable for use as a single dwelling ”: “(1) The word “suitable” implies that the property must be appropriate or fit for use as a single dwelling. It is not enough if it is capable of being made appropriate or fit for use by adaptations or alterations. […] The question of whether the property is suitable for use as a single dwelling falls to be determined by the physical attributes of the property as they exist at the effective date, not as they might or could be. […] (2) The word “dwelling” describes a place suitable for residential accommodation which can provide the occupant with facilities for basic domestic living needs. Those basic needs include the need to sleep and to attend to personal and hygiene needs. The question of the extent to which they necessarily include the need to prepare food should be dealt with in an appeal where that issue is material. (3) The word “single” emphasises that dwelling must comprise a separate self-contained living unit. (4) The test is objective. The motives or intentions of particular buyers or occupants of the property are not relevant. (5) Suitability for use as a single dwelling is to be assessed by reference to suitability for occupants generally. It is not sufficient if the property would satisfy the test only for a particular type of occupant such as a relative or squatter. (6) The test is not “one size fits all”: a development of flats in a city centre may raise different issues to an annex of a country property. What matters is the occupant’s basic living needs must be capable of being satisfied with a degree of privacy, self-sufficiency and security consistent with the concept of a single dwelling. How that is achieved in terms of bricks and mortar may vary. (7) The question of whether or not a property satisfies the above criteria is a multi-factorial assessment, which should take into account all the facts and circumstances. Relevant facts and circumstances will obviously include the physical attributes of and access to the property, but there is no exhaustive list which can be reliably laid out of relevant factors. Ultimately, the assessment must be made by the FTT as the fact-finding tribunal, applying the principles set out above.”

8. HMRC submitted that it is helpful to consider how many dwellings an objective observer would consider there to be at the point of completion, as was the approach of this tribunal in Fiander and another v Revenue and Customs Commissioner s [2020] UKFTT 190 (TC) at [51]: “We approach “suitability for use” as an objective determination to be made on the basis of the physical attributes of the property at the relevant time. Suitability for a given use is to be adjudged from the perspective of a reasonable person observing the physical attributes of the property at the time of the transaction.”

9. The appellant also made the following main submissions in relation to the following decisions made by the tribunal in each case in relation to whether part of a larger property annexed to it was suitable for use as a single dwelling: (1) In James Winfield v HM RC [2024] UKFTT 00734 (TC) the tribunal followed the multifactorial test laid down in Fiander (see [15]) and stated that the tribunal should be cautious of deriving principles from cases with different facts (see [16]). In considering the term of occupation the tribunal’s view was that a six-month tenancy would be sufficient suggesting that the ability to sell a is not a requirement (see [21]). The tribunal also made it clear that the physical configuration of the annex carried weight and can outweigh other perceived weaknesses (see [32]). (2) In Benjamin Packman and Miranda Wood v HMRC TC/2023/08890 again it was held that it is not helpful to rely on previous tribunal decisions with different fact patterns (see [22]) and the tribunal advocated a multi-factorial approach noting that “there is no ‘hierarchy’ of factors to take into account and none of the binding Upper Tribunal authorities says as such” (see [44]). At [51], the tribunal confirmed that there is no requirement for absolute privacy and security. At [55] the tribunal stated that the “correct consideration bearing in mind the legislation and the UT’s decision in Fiander was the ability to separately occupy the [relevant area], not the ability to separately sell the [relevant area]” and : “If independent saleability was a requirement of MDR being applicable, then we would expect to see that in the clearest terms either in the FA or in binding authority of the Upper Tribunal. Instead, section 116 FA and paragraph 2 of Schedule 6B FA are in very broad terms. Fiander requires an objective, multi-factorial assessment as to a building’s attributes and how it may be used by occupiers generally to determine whether it is a dwelling or not.” (3) In Thomas Yeomans v HMRC [2024] UKFTT 00955 (TC) the tribunal also applied a multifactorial approach. The tribunal said, at [28] and [32], that “as a starting point that paragraph 7(2)(a) expressly refers to “use” and had the ability to sell the property been the relevant test they would have expected it would have been included: “Each case must be judged on its facts but there is no necessary requirement that the property should be such that an arm’s length purchaser would buy it.” They applied the same approach regarding the term of occupation as was taken in Winfield (see [50]). (4) In Charlie Johnson v HMRC TC/2024/00254 the tribunal again stated that it should be cautious about “deriving principles from other cases which have very different facts” and followed the multi-factorial approach set out in Fiander . The tribunal said that “privacy is a relative quality and the weight to be attached to it depends on the characteristics of the objective occupier”. The tribunal said this as regards a tenant’s rights in relation to a garden: “We have accepted that a tenancy agreement can properly deal with access to the gardens, and would not be an infringement on the rights of the tenant as there is no general right of access to a garden.” (5) In Nicole Behenna-Renton v HMRC TC/2024/01660 again the tribunal applied the multi-factorial test set out in Fiander . In this case the tribunal accepted that it is not unusual for utilities to be included as part of the rent payable by a tenant (see [30]) and so: “we do not consider that the lack of separate utility meters or bills (including council tax) for the Annex would diminish the Annex’s level of self-sufficiency below that of a single dwelling”. The tribunal said, at [31], that there is no requirement for absolute privacy and security, rather the requirement is that there is a “degree of privacy, self-sufficiency and security consistent with the concept of a single dwelling”. (6) In Steven James Harvey Smith and Caroline Rachael Smith v HMRC TC/2024/02856 a similar approach was taken to that set out in the above decisions. At [48], the tribunal discussed the objective observer test and said that the relevant annex may not be suitable for every type of occupier but that did not prevent a finding that it was suitable for use as a separate dwelling noting that, as set out in Fiander “there is not a “one size fits all” test”. The tribunal was satisfied that the relevant area offered “accommodation which would satisfy the basic living needs of those who would accept its particular attributes and so choose to be in occupation…”. The tribunal also accepted that some changes can be made to a property after the effective date without offending the principles set out in Fiander : “Indeed, small tweaks and adjustments can always be made to ensure and improve the safety and comfort of particular occupants without calling into question a property’s suitability for use as a single dwelling without them”. The tribunal accepted that there will be some reliance on the owner of the property in relation to the property as regards services and utilities but made the point that this is the same for any rented property (see [50]): “We consider this to be no different to any other arrangement under which property or accommodation is rented or sub-let. This aspect is not, by itself, a barrier to classifying a property as suitable for use as a single dwelling: it is to be expected that there would be some reliance on a property owner to look after, and resolve problems relating to, the property and services and utilities relied upon.” It was also accepted, at [51], that the absence of arrangements in relation to access and utilities is not a barrier to a property being suitable for use as two separate dwellings: “We do not agree that the lack of a formal arrangement relating to independent utility supplies and access as at the Effective Date would lead the objective observer to conclude that the Main House and the Cart Lodge were not two separate dwellings. The Cart Lodge has not been used as a separate dwelling, so there has been no need for such arrangements to be in place. There is no barrier to that being possible at some future date.” (7) In Michelle Jacqueline Berrell and Rory James Berrell v HMRC TC/2024/01506 the taxpayers’ appeal was allowed despite the tribunal having concerns regarding the privacy and security of the dwellings. The tribunal made it clear that the decision was based on a multi-factorial assessment and a number of factors pointed towards there being two separate dwellings. This supports the appellants’ position that there can be perceived weaknesses in relation to privacy, security and independence without preventing the annex being considered suitable for use as a dwelling (see the submissions below). The tribunal also rejected HMRC’s argument that for a tenancy agreement or specific arrangements to be considered they would need to have been in place at the effective date. It was stated, at [40] that: “The requirement in Fiander is to look at the physical characteristics of the property at the time of completion but that does not in our view prevent, as part of applying the multifactorial test, some consideration of the realistic legal terms on which such occupancy could be granted. Indeed, in many cases without doing so the task seems impossible. For example, if we have to assume there would be no right for an occupant of the Annexe to have access over the driveway because it had never been previously granted, then any claim for MDR in these annexe type circumstances would necessarily fail unless there happened to have been a pre-existing tenancy of some kind.” Facts

10. The appellants purchased the property for a price of £797,000. The effective date of transaction, which is the date of completion of the contract and land transfer, was 23 August 2021 (see s 119 FA 2003 ).

11. As at the effective date of the acquisition of the Property for SDLT purposes: (1) The part of the Property which the appellant asserts comprised the main property, (and a single “dwelling”) consists of a large part of a detached building with five bedrooms, two bathrooms a living room, a kitchen, a dining room and a cloakroom with a large back garden (“ the main property ”). (2) The disputed space (“ the annex ”) which is part of this detached building consisted of (a) a kitchen comprising a stainless-steel sink, food preparation surfaces, cupboards and electrical socket for whitegoods and associated plumbing. It did not contain an oven or hob, (b) a ground floor shower room with a toilet, sink and shower, and (c) a studio room or office/sitting room which could be used as a living space/bedroom. We refer to this as “the studio room”. (3) The annex could be accessed in three ways: (a) From the driveway of the Property, through an external door into the garage and a further lockable door leading to the annex. Occupiers of the main property could not access the garage internally from the main property but could access it externally. To access the annex using that route any occupiers would not need to pass any windows of the main property or to access the rear garden. (b) Through patio doors in the studio room via the garden. (c) Through a door into the corridor between the studio room and kitchen which could also be accessed via the garden. (4) The main property was accessed via a separate external front door and could not be accessed via the garage. (5) The main property was separated from the annex by a further separate lockable door which opened into the bathroom of the annex. The door had a key lock requiring a key to access. (6) The window of the kitchen in the main house looks directly into the studio room when the doors to that area are open. (7) The configuration was such that neither the occupants of the main dwelling or any occupants of the annex could have use of the garden independently and privately from each other. (8) The studio room included a window facing the garden and, as noted, a set of patio doors leading out to the garden. Occupiers of the main property using the garden would be able to see through the window and the patio doors unless measures were taken such as the fitting and drawing of curtains, blinds or privacy film. (9) Occupiers of the annex could control their own heating via independent heating controls and there was a separate fuse box and water stop tap. The boiler was in a shared location, in the garage, and both occupants of the main property and of the annex had access to it. The temperature hot water could not be independently controlled by an occupant of the annex. (10) The Property was registered under a single title with the Land Registry, as a detached property with five bedrooms. The marketing information does not describe an “annex” or additional dwelling. It showed a sitting room/office, small bathroom (the “downstairs” bathroom) and utility in a section of the Property. (11) The annex did not have a separate postal address or council tax banding. Decision

12. Essentially, for the reasons given by the appellants, we consider that the appellant has demonstrated that the Property comprised two dwellings, as at the effective date, on the basis that both the main property and the annex were each suitable for use as a single dwelling at that time.

13. As the appellants submitted and we accept, at the effective date, the annex possessed all the physical features to enable a willing occupier’s basic living needs to be met. It had a kitchen, a shower room and living and sleeping space. It met those basic needs with a sufficient degree of privacy, self-sufficiency and security for it to be regarded as suitable for use as a dwelling. The annex could be accessed from the driveway of the Property, through an external door into the garage and a further lockable door from the garage into the annex. The occupants of the main property could not access the garage internally. Given the overall configuration of the Property, it is reasonable to suppose that this would be the main access route for an occupant of the annex; accessing it that way would not involve the occupant passing any windows of the main property. An occupier of the annex could control his own heating for the annex using the independent heating controls and there was a separate fuse box and water stop. An occupant of the annex would not need access to the main property to satisfy any of his day to day living needs.

14. We do not accept HMRC’s arguments that an objective observer would consider the main property and annex unsuitable for unconnected parties to inhabit due to a lack of privacy, security and independence. HMRC submitted that the level of privacy and security required to meet this standard is high, and, at the effective date, this threshold was met. We note that the UT did not suggest in Fianda that this is a “high” test; the test is clearly set out at [48(6))] of their decision above. On HMRC’s specific points: (1) As regards privacy and independence, HMRC submitted that (a) there was no independent means of access as both parts of the building were accessed via the same garage. The patio doors and “external” door of the annexe were accessed via the garden. Therefore, there was no access that does not encroach upon the grounds or jointly occupied areas of the main house, (b) persons using the garden would be able to see into the annex through the window and patio doors in the studio room (and vice versa) unless curtains or blinds were fitted and drawn which would deprive the annex of natural light, and (b) the window of the kitchen in the main property looks directly into the studio room when the doors to that area are open. In their view, an objective observer would reasonably expect a greater degree of privacy for a bedroom located at the rear of the annex, particularly where it opens onto a private rear garden. As reflects the appellant’s submissions, (a) as noted, it is reasonable to view the access via the garage as the main access to the annex. We cannot see that the fact that the main access was via a shared area (the garage) affects the character of the annex as a dwelling, (b) we consider it permissible to take into account in assessing the suitability of the annex for use as a single dwelling that blinds or privacy film which allows light to enter but blocks any view into or out of a window/glass door, could be used according to the occupier’s wishes, and (c) it is reasonable to suppose that both the owners of the Property and any occupier of the annex would accept that as a sufficient degree of privacy on the basis that clearly a Property such as this could not be used in this way without some such compromise of absolute privacy. On the privacy point, HMRC referred to the tribunal’s decision in Clarke & Anor [2024] UKFTT 923 (TC) where it was noted, at [125], that in that case anyone accessing the front door/entrance to the disputed area would pass directly by the kitchen windows of the main house, and this could also be remedied by installing blinds. However, the tribunal were not persuaded that the purchaser of a home worth in the region of £2 million would, necessarily wish two out of three windows sites in their kitchen to have to have blinds to achieve privacy. Clearly, each case will depend on its own facts and what suffices for privacy in one set of circumstances may be different in another. In the context of this Property, which is not of such a high value , we do not consider that a reasonable owner/occupant of either the main property or the annex would object to the use of blinds or privacy film to the relatively limited extent to which, in this Property, it may be required to ensure adequate privacy. (2) As regards both privacy and security as regards the doors and the garage, HMRC submitted that (a) the interconnecting doors were unsuitable to segregate the annex from the main house. For such a door to be considered sufficiently secure, it must be lockable from both sides and incapable of being unlocked from the opposite side. In this case, if the key was in the annex side, that would give an occupant of the annex unfettered access to the main dwelling, and vice-versa. Such an arrangement would not be acceptable to occupants generally, and an objective observer would not consider the main property and the annex to be sufficiently separate, private and independent to constitute separate dwellings, (b) the interconnecting door was predominantly glass, and it did not have fire or sound proofing attributes, and (c) the garage could not be made secure by the occupants of the main house given it is an access point for the annex. As a result, any occupier of the annex would have access to anything that the occupant of the main house decided to store in the garage. As the appellants submitted, it is reasonable to suppose that (i) the owners of the Property would have a key to all doors of the Property, (ii) access to the annex and the garage (as a shared space) would be dealt with under the terms of any tenancy agreement and in accordance with the law. Hence, this is no different to any landlord and tenant relationship in any rented property whether it was part of another property or a standalone dwelling, and (iii) if an occupier required additional security, a bolt could be added to the annex side of the door or door braces could be fitted. This is no more than a relatively minor tweak or adjustment which could be made after the effective date which it is appropriate to take into account in assessing the suitability of the annex for use as a dwelling as at the effective date. (3) As regards security and independence, HMRC submitted that (a) it is material that there was nothing in place to prevent an occupant from interfering with any of the utility controls housed within the utility room, (b) it is key that the annex did not have separate gas or electricity meters or a separate boiler/heating system. In their view, occupants generally would expect to be able to manage their own heating system and the temperature of the water supply as a key utility. Lack of such provision is equivalent to one flat having control of another’s heating and hot water. Whilst the shared meterage of gas and electricity utilities is not a decisive factor in the multifactorial assessment, it is a factor to be considered as it impacts on the independence of each of the main house and the annex. As the appellant submitted, (a) as a matter of common sense it is plain that neither set of occupants is likely to need daily to access the boiler given that they each had independent heating controls which would allow them to control the level of heat within their part of the Property independently of the other, and neither set of occupants would have any reason to tamper with the boiler, (b) in any event, access to the boiler whether for maintenance or repairs would be likely to be governed by a tenancy agreement, (c) it is reasonable to suppose that any rent charged to an occupier of the annex could be inclusive of utility bills and those charges could be readily apportioned based on actual use, and (d) it is not highly material that the hot water cannot be independently controlled. It is reasonable to suppose that (i) is not something that one would expect to adjust on a regular basis; the heat of the water is usually controlled by the boiler and supplied on demand, (ii) if there was a need to adjust the level of heat this would be agreed and actioned by the landlord in accordance with a tenancy agreement, and (iii) the control of the utilities would be dealt with in any tenancy agreement. In our view, the more relevant factor is that occupiers of the annex and of the main property could independently control all of their own utilities. (4) HMRC further submitted that it is material that neither the occupants of the main property or of the annex could have use of the garden independently and privately, thereby impinging on the privacy of all occupants and further supporting an objective observers view that the Property is one dwelling, rather than two. We do not consider that for the annex to be regarded as a dwelling requires any occupiers to whom it may be let to have access to a garden. Moreover, if the occupier of the annex were not to be provided with keys to the garden it would not affect his ability to access the annex as there are alternative means of entering and exiting it. The occupiers of the main property had a separate external access to the garden. (5) HMRC submitted that it is of some note that (a) the Property was registered under a single title with the Land Registry, as a detached property with five bedrooms. The marketing information does not describe an “Annexe” or additional dwelling, (b) the marketing information showed a sitting room/office, small bathroom (the “downstairs” bathroom) and utility in the annex, and (c) the disputed annex did not have a separate postal address or council tax banding. As the appellant submitted, the postal address and council tax position are administrative matters which can be dealt with after the effective time and lack of either does not outweigh the factors set out above. Lack of separate title is not relevant to whether the annex was suitable for use as a dwelling. Title pertains to the ownership of the land not the occupation of the dwellings upon that land. Moreover, an annex of this type would not have a separate title as it was never previously separately acquired from the land on which the main property is sited. (6) HMRC also suggested that it is material that, so they assert, the annex could not be sold separately from the main property. For the reasons set out in some of the cases the appellant referred to, we cannot see that any inability to sell the annex independently of the main property is relevant. In this context, HMRC objected to the appellant’s submissions (which we have accepted above) that how the annex may be used on the assumption it is rented out to an occupier is of relevance to the assessment of its suitability for use as a single dwelling. Our view is that this is relevant on the basis that, as at the effective date, this was the most likely use of an annex of this type. Conclusion and right to appeal

15. For all the reasons set out above the appeal is allowed.

16. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. RELEASE DATE: 11 th MARCH 2026