The Finance Act 2017, which came into law on 25 December 2017, introduced a significant change to stamp duty.
The real surprise was the tripling of the stamp duty rate from 2% to 6% on commercial property transactions applying from 11 October (2017). Transitional measures allowed for transactions entered into before 11 October 2017 and completed before 1 January 2018 to avail of the lower rate, but otherwise it was straight to the new rate.
As originally drafted the Finance Bill 2017 did not prohibit commercial property being transferred by a share sale or sale of partnership interests, where a 1% stamp duty rate would apply. To close this loophole an amendment to the Act was made without warning (effective 6 December 2017) to ensure that the 6% stamp duty rate would in fact apply to transfers of shares in certain circumstances where property was involved. The 6% rate applies where:
- There is a change in the person having direct control of a company, fund or partnership which derives more than 50% of its value from (Irish) commercial property, and;
- It is “reasonable to consider” that the property was acquired to realise a gain from its disposal and the property is being developed with this as the main aim or it was held as trading stock by the target.
For share sales, where property is involved, real attention will now need to be paid to Revenues’ meaning of “reasonable to consider,” if a purchaser is seeking to secure the 1% rate.
There have been some mixed reactions to the hike from the players in the market, largely negative as to be expected, but with resigned acceptance from the bigger players, where an increase was expected and where it is apparent that the hike has just been factored into the transaction cost. Marie Hunt, Head of Research with CBRE’s view was that this was an unwelcome development that would cause reputational damage in the eyes of international investors, who she said now account for more than half of all investment in the Irish commercial property market.
The 2017 Act has however, as a positive on the stamp duty front, introduced a provision for a refund scheme for land purchased for development of housing, once certain conditions are met. This is a complex scheme. Its criteria include the length of time between the commencement notice and commencement of construction, and a time limit for completion of the development. Developers of eligible land will be able to avail of a refund of stamp duty already paid on the site purchase, but not an upfront reduction. This is a temporary measure available for developments commenced before 31 December 2021 only.
We are waiting to see the impact of these changes on commercial property transactions and will provide further updates as they occur.
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About the Authors
Jackie Buckley is Head of the Property and Private Client Department at Hayes solicitors. She has established a niche practice in advising clients in the banking, public and retail sector. She has been involved in some of the most prestigious developments over the past number of years and has assisted her retail clients in the sale, purchase, lease and development of substantial retail stores, including mixed, residential and commercial
Susanne Cunningham is a trainee solicitor with Hayes solicitors.