Is it too late to reclaim overpaid Stamp Duty Land Tax (SDLT)?
I bought a property with a detached house and a separate flat and my solicitor did not apply the multiple dwellings relief and I overpaid stamp duty. I have tried to claim the over payment but HMRC has refused as they claimed my request was received late – after 12 months.
I sent a letter requesting a refund first class on the 1 December 2017. They received it on the 6 December 2017. The filing date for the transaction was 2 December 2016.
This was their response to my refund letter:
‘The deadline for an amendment to a return was 2/12/17. As your request was received after this date, I am unable to make a refund. As a claim for MDR can only be made in a return or an amendment to a return I cannot consider a refund claim under any part of the SDLT legislation.’
I suggest that you write back and ask HMRC to review the matter for the following reasons:
1. The HMRC guidance says write to them to amend your return (see guidance here). They therefore authorise you to post the claim to them using Royal Mail. As the claim letter was posted first class on Friday 1 December it should have arrived on Saturday 2 December as Royal Mail claims to deliver 97% of all first class mail by the next working day (including Saturday). Quote the case of Christopher Michael Oddy  UKFTT 673 (TC) (a case relating to penalties for late submission of tax returns) where there was no proof of posting and the Tribunal held that “obtaining proof of posting is not a legal obligation and HMRC cannot insist upon it. As [the advocate] says, it can be an onerous requirement, particularly for a small business with extended working hours”. The Tribunal found, on the balance of probabilities, that the returns were posted at a time when in the ordinary course of post they could have been expected to arrive in the hands of HMRC by the due date; and allowed the appeals against the penalties.
2. Where is the evidence that your claim was not received until 6 December? It may not have reached the writer of the letter to you but it doesn’t have to – it just has to reach the address on the letter (which I assume is the correct one).
3. Paragraphs 34 and 34A–E of Schedule 10 to FA 2003 provide for relief in cases where a person has overpaid SDLT or been assessed as liable to pay SDLT under an assessment or determination which that person believes is excessive. A claim for relief must be made no later than four years after the effective date of the transaction. No relief is given in seven cases, one of which is where the overpayment arises from a mistake in a claim or election. You did not make a mistake in your claim – you didn’t make a claim so its worth a try.
HMRC’s own guidance says the following:
‘If you’ve made a mistake on your SDLT return that’s more than 12 months old
HMRC Stamp Taxes can amend a buyer’s name, but can’t make any amendments that change either the underlying identity of any buyer or the property details.
You can’t correct other mistakes on your SDLT return more than 12 months after the filing deadline. You may still be able to claim a refund if the mistake means you’ve paid too much SDLT.
To ask HMRC to amend a return older than 12 months write to the Stamp Duty Land Tax Office explaining what the error is, how it arose and include a copy of your original return.’
I cannot find anything allowing you to appeal against HMRC’s refusal to accept your claim but I suggest that you appeal anyhow to protect yourself. There is a right of appeal against a refusal to allow a claim under (3) above but HMRC haven’t been asked to give relief under those provisions yet.
At the time of publication this response was correct however as tax legislation and practice change from time-to-time you should take specific advice before taking any action.
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