With a potential 12% differential in SDLT rates as between the mixed use/commercial rates and the residential rates (once the 2% non-resident surcharge and the 3% higher rates for additional dwellings surcharge are both taken into account), it is tempting for buyers to push the boundaries.
However, given the large number of valuable prime properties in central London that surround communal gardens, it was always unlikely that, once they properly considered the amendment to the relevant SDLT land transaction return, HMRC would allow the refund, as it would create a dangerous precedent. The tribunal found against the taxpayer on points of fact and legislative detail.
If you are going to amend your return, always assess where the boundary is and not where you’d like it to be.
He claims that Tedworth Square Gardens — a Victorian garden owned by the Cadogan Estate to which all residents have access — should be designated non-residential land because it is not physically attached to his house and is also used by other people.