Major amendments to the Finance Bill have been “slipped in” at committee stage.
According to the Law Society, they set a disturbing and undemocratic precedent of avoiding proper consultation and scrutiny.
The changes could result in property investors paying income tax rather than Capital Gains Tax on profits when they sell.
The apparently covert changes would mean that the Government would rake vastly more into its coffers – and it would undoubtedly act as a further deterrent to buy-to-let investors.
Capital Gains Tax was significantly cut in the 2016 Budget and is currently charged at 20% for higher rate taxpayers (10% for basic rate payers).
By contrast, Income Tax is currently charged at 20% basic rate, 40% higher rate and 45% additional rate.
The specific clauses in the Finance Bill that are of concern to the Law Society are 75-78.
In its representations to the Government, the Law Society’s corporation tax sub-committee says: “The government has included new clauses in the Finance Bill 2016 on how profits from trading and investing in UK land is taxed. The clauses were introduced at the report stage in the House of Commons without consulting on the draft legislation.
“The Law Society has made written representations to HMRC voicing concerns about the failure to consult on the wording of the legislation. The Law Society also flags substantive issues that exist, particularly the possible unintended effect on buy-to-lets where profits will be taxed as income rather than as capital gains.”
The Society says that the “average buy-to-let investor will have assumed” that they will be taxed at CGT rates on the ultimate disposal of the property.
If the Government now wants to change this, it should have consulted on it, say the lawyers.
Law Society chief executive Catherine Dixon said: “By introducing a significant change in this way, the Government is denying the public the chance to consider and comment on these proposals.
“The way these changes were introduced, in particular without consultation on the draft legislation before they were added to the Bill at such a late stage, starts to feel like legislation by stealth.
“No matter what the policy proposals, proper consultation and process is vital to maintain public confidence in our democratic institutions.”
The Law Society has made representations to the Government, prepared by its corporation tax sub-committee.
These representations set out how the amendments will materially change some investors’ tax obligations.
Dixon said: “If the Government did not intend to make a material change, they need to clarify the language in the bill before it is passed.
“If they are intent on these changes, they should submit them for proper public consultation and legislative scrutiny.”
A spokesperson for the Law Society today clarified that the changes may affect all landlords in the UK adding that the important word is “may”, as it is unclear.
He said: “David Gauke [Treasury minister] has said that the measure was not intended to affect property investors but is targeted at those who have a property building trade (which we have referred to in our representations to Government). However, there is a concern that the wording could affect a section of BTL landlords.
“We understand that HMRC may be intending to deal with this issue in its guidance.”