Shinebrook Ltd v The Commissioners for HMRC

Neutral Citation: [2026] UKFTT 00602 (TC) FIRST-TIER TRIBUNAL TAX CHAMBER Case Number: TC 09850 [Taylor House] Appeal reference: TC/2022/13098 STAMP DUTY LAND TAX – options and rights of pre-emption – grant of an option or right of acquisition in respect of non-residential property – whether the option and subsequent acquisition of the Property was a ‘linked transaction’ taxable at the ‘non-residential’ rate – whether the Property, at the time of completion, was in the process of “being constructed or adapted for use as a dwelling” pursuant to para. 7(2)(b) of Schedule 6B to the Finance Act 2003 – whether at the effective date of transaction the main subject-matter of the transaction consisted of an interest in at least two dwellings – whether multiple dwellings relief was applicable to the transaction – multifactorial assessment taking into account all the facts and circumstances – the objective observer test – Ladson Preston Ltd & AKA Developments Greenview Ltd v HMRC considered and applied – Appeal dismissed Heard on: 17 February 2026 Judgment date: 16 April 2026 Before JUDGE NATSAI MANYARARA GILL HUNTER Between SHINEBROOK LTD and Appellant THE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMS Respondents Representation: For the Appellant: Mr Ben Symons of Counsel For the Respondents: Ms Lucy Lawrence, Litigator of HM Revenue and Customs’ Solicitor’s Office DECISION INTRODUCTION 1. transaction benefits from Multiple Dwellings Relief (“MDR”) for SDLT purposes. This appeal concerns Stamp Duty Land Tax (“SDLT”) and, in particular, whether the 2. The Appellant (“Shinebrook Limited) purchased a property at 1023 Garratt Lane (“the Property”) for consideration of £3,727,165. Prior to acquisition, the Property was used for commercial purposes as a “Timber and Builders Merchants”. On 1 April 2021, the Appellant was granted an option, in return for consideration of £3,600, to purchase the Property on or before 10 May 2021. The option price was to be in addition to the consideration for the Property. On 12 May 2021, the Appellant exercised the option and completed the purchase. On 13 May 2021, the Appellant submitted an SDLT return and enclosed tax of £37,442. The SDLT return filed by the Appellant described the Property as ‘mixed-use’, and claimed MDR. The Effective Date of Transaction (“EDT”) was stated as being 12 May 2021. The Appellant submits that on 30 April 2021, the seller had engaged “Roskerry Buildings Limited” to prepare the building on the site for conversion to 17 dwellings, and that the seller had commenced work which was continued by the Appellant. 3. The Appellant appeals against a closure notice issued by HMRC under para. 23 of Schedule 10 to the Finance Act 2003 (“the Closure Notice”). The Closure Notice amended the Appellant’s SDLT return to charge additional tax, in the sum of £138,426, and concluded that: the Property was entirely ‘non-residential’ at the EDT as no construction work (1) was taking place at that time; and (2) MDR could not be claimed on the basis of planning permission alone. Having carefully considered the evidence, and the submissions made by both parties, 4. we dismissed the appeal. In this Decision, the legislation is cited so far as is relevant to the issues under appeal. ISSUE(S) 5. The substantive issues for consideration are: (1) Whether the Appellant is entitled to MDR in respect of its acquisition of the Property on 12 May 2021. In particular: (i) whether, at the EDT, the “main subject- matter” of the transaction consisted of an interest in “at least two dwellings”, for the purpose of Schedule 6B of the Finance Act 2003 (“FA 2003”); or (ii) whether the Property was in the process of “being constructed or adapted for use as a dwelling”, pursuant to para. 7(2)(b) of Schedule 6B at the EDT (“Issue 1”). (2) Whether the acquisition of the option on 1 April 2021, and the acquisition of the Property upon exercise of that option on 12 May 2021, were “linked transactions”. If so, whether the relevant land, an interest in which was the main subject-matter of any of the two linked transactions, was “non-residential” property (“Issue 2”). 6. As confirmed by the Upper Tribunal (‘UT’) in Shinelock Ltd v HMRC [2023] UKUT 107 (TCC) (‘Shinelock’), the matter in issue in relation to an appeal against a closure notice is the conclusion notified in the closure notice - albeit not limited to a stated reason for that conclusion - and the associated amendment arising from such conclusion. In Daarasp LLP & Anor v HMRC [2021] UKUT 87 (TCC) (“Daarasp”), at [24], the UT made clear that although there is a nexus between the conclusions in a closure notice and the consequential amendments implementing the conclusions, the two are distinct. BURDEN AND STANDARD OF PROOF 7. The burden of proof is on the Appellant to demonstrate that the conclusions stated in the Closure Notice are incorrect (i.e., that it was overcharged by the Closure Notice), otherwise the Closure Notice shall stand. 8. The standard of proof is the ordinary civil standard; that of a balance of probabilities. AUTHORITIES AND DOCUMENTS 9. The authorities to which we were specifically referred by the parties included: (1) Fiander & Brower v HMRC [2021] UKUT 0156 (TCC) (‘Fiander’); Ladson Preston Ltd & AKA Developments Greenview Ltd v HMRC [2022] (2) UKUT 00301 (TCC) (‘Ladson’); and (3) Mudan v HMRC [2025] 1 WLR 727 (‘Mudan’). 10. The documents to which we were referred were: (i) the Documents Bundle consisting of 265 pages; (ii) the Authorities Bundle consisting of 106 pages; (iii) HMRC’s Skeleton Argument dated 27 January 2026; and (iv) the Appellant’s Skeleton Argument dated 17 February 2026 (HMRC did not object to the late service of this document). BACKGROUND FACTS 11. On 1 April 2021, the Appellant was granted an option, by “Western Sunsets Comercio International LDA”, in return for consideration of £3,600, to purchase the Property for £3,727,165 on or before 10 May 2021. The payment of £3,600 was for the option grant. The option price was to be in addition to the consideration for the Property. 12. On 12 May 2021, the Appellant exercised the option and completed the purchase. 13. On 13 May 2021, the Appellant submitted its SDLT return, and enclosed tax of £37,442. HMRC’s enquiry and decision 14. On 24 January 2022, Officer James Loades issued an opening notice, under para. 12 of Schedule 10 FA 2003, for the purpose of checking the SDLT return. 15. On 1 March 2022, the Appellant’s agent responded, with some enclosures. 16. On 14 March 2022, Officer Loades requested further information and evidence. 17. On 14 April 2022, the Appellant’s agent stated that the seller of the Property had already started demolition work prior to the Appellant purchasing the Property, and that the Appellant carried on with the demolition work on the day of completion. Attached to the letter was photographic evidence of the demolition work, as well as an invoice dated 30 April 2021 confirming that “Roskerry Buildings Service Limited” were contracted to undertake the demolition work. The letter further stated that that the Appellant hoped to sign the building contract within the next few weeks. 18. On 10 May 2022, Officer Loades issued the Closure Notice. 19. On 1 June 2022, the Appellant’s agent appealed on the basis that neither “SDLTM00400”, nor Schedule 6B(7)(2) FA 2003, expressly state that physical work must have been underway before the EDT. The agent believed that: the site preparation that took place on the EDT met the definition of construction (1) work; and as planning permission was sought prior to completion, this demonstrated the (2) Appellant’s intention to construct dwellings. 20. On 9 June 2022, Officer Loades issued his “View of the Matter” letter. 21. On 23 June 2022, the agent requested an independent review of the decision. 22. On 20 July 2022, HMRC issued the “Review Conclusion Letter”. The conclusion was that the Closure Notice was upheld. 23. On 21 July 2022, HMRC requested a stay in proceedings until after the final ruling of the UT appeal in Ladson. 24. On 25 August 2022, the Appellant made an appeal to the First-tier Tribunal (‘FtT’). 25. On 17 November 2022, the UT released its decision in Ladson. 26. On 5 February 2024, HMRC applied to the FtT for an “Unless Order” in respect of all appeals stayed behind the final ruling in the Ladson appeal, further requiring the Appellant to confirm whether it wished to proceed with its appeal following the final ruling in Ladson and, if so, requiring the Appellant to provide new and particularised Grounds of Appeal. 27. On 12 February 2024, the FtT granted HMRC’s application. 28. On 26 February 2024, the Appellant confirmed that it wished to proceed with its appeal, and submitted new and particularised Grounds of Appeal. 29. On 2 July 2024, HMRC applied for Further and Better Particulars. 30. On 1 August 2024, Further and Better Particulars were provided by the Appellant’s agent. 31. On 22 October 2025, the Notice of Hearing was issued to the parties. RELEVANT LAW 32. statutory provisions. In order to put the parties’ respective contentions into context, we start with the relevant 33. The relevant law, in respect of SDLT, is set out in Part 4 FA 2003. 34. Section 42 provides that SDLT is charged on land transactions. 35. A “land transaction” is defined by s 43 as follows: “43 Land transactions (1) In this Part a “land transaction” means any acquisition of a chargeable interest. (2) Except as otherwise provided, this Part applies however the acquisition is effected, whether by act of the parties, by order of a court or other authority, by or under any statutory provision or by operation of law. (3) For the purposes of this Part— (a) the creation of a chargeable interest is— (i) an acquisition by the person becoming entitled to the interest created, and (ii) a disposal by the person whose interest or right is subject to the interest created; ... (4) References in this Part to the “purchaser” and “vendor”, in relation to a land transaction, are to the person acquiring and the person disposing of the subject- matter of the transaction. (5) A person is not treated as a purchaser unless he has given consideration for, or is a party to, the transaction. (6) References in this Part to the subject-matter of a land transaction are to the chargeable interest acquired (the “main subject-matter”), together with any interest or right appurtenant or pertaining to it that is acquired with it.” Pursuant to s 43(3), each of those chargeable interests represents different “subject- 36. matter” of land. 37. Section 48 defines a “chargeable interest” as follows: “48 Chargeable interests (1) In this Part “chargeable interest” means– (a) an estate, interest, right or power in or over land…or (b) the benefit of an obligation, restriction or condition affecting the value of any such estate, interest, right or power. other than an exempt interest …” Section 49 provides that a land transaction is a “chargeable transaction” if it is not a 38. transaction that is exempt from charge. 39. Section 46 deals with “options and rights of pre-emption”, as follows: “46 Options and rights of pre-emption (1) The acquisition of— (a) an option binding the grantor to enter into a land transaction, or (b) a right of pre-emption preventing the grantor from entering into, or restricting the right of the grantor to enter into, a land transaction, is a land transaction distinct from any land transaction resulting from the exercise of the option or right. They may be “linked transactions” (see section 108). (2) The reference in subsection (1)(a) to an option binding the grantor to enter into a land transaction includes an option requiring the grantor either to enter into a land transaction or to discharge his obligations under the option in some other way. (3) The effective date of the transaction in the case of the acquisition of an option or right such as is mentioned in subsection (1) is when the option or right is acquired (as opposed to when it becomes exercisable). (4) Nothing in this section applies to so much of an option or right of pre-emption as constitutes or forms part of a land transaction apart from this section.” Section 55 40. Section 55 sets out the amount of tax chargeable on the “relevant consideration” given for a chargeable transaction (i.e., the chargeable consideration for the transaction), as follows: “55 Amount of tax chargeable: general (1) The amount of tax chargeable in respect of a chargeable transaction to which this section applies is determined in accordance with subsections (1B). (1A) This section applies to any chargeable transaction other than a transaction to which paragraph 3 of Schedule 4A or step 4 of section 74(1A) (higher rate for certain transactions) applies. (1B) If the transaction is not one of a number of linked transactions, the amount of tax chargeable is determined as follows— Step 1 Apply the rates specified in the second column of the appropriate table below to the parts of the relevant consideration specified in the first column of the appropriate table. “The “appropriate table” is— (a) Table A, if the relevant land consists entirely of residential property, and (b) Table B, if the relevant land consists of or includes land that is not residential property.” 41. The rate at which SDLT is charged in respect of any land transaction therefore depends on whether the interest acquired is an interest in ‘residential property’, or not. 42. Section 55(3)(a) defines the “relevant land” as: “the land an interest in which is the main subject-matter of the transaction.” Residential property 43. Section 116 provides the definition of a “residential property”, as follows: “116 Meaning of “residential property” (1) In this Part “residential property” means – (a) a building that is used or suitable for use as a dwelling, or is in the process of being constructed or adapted for such use, and (b) land that is or forms part of the garden or grounds of a building within paragraph (a) (including any building or structure on such land), or (c) an interest in or over land that subsist for the benefit of a building within paragraph (a) or of land within paragraph (b) and “non-residential property” means any property that is not residential property.” Schedule 4ZA 44. Schedule 4ZA provides for higher rates of SDLT to be chargeable in respect of purchases of dwellings in certain specified situations. The definition of “dwelling” for this purpose (in para. 18 of Schedule 4ZA) is 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. 45. The para. 18 definition is in the same terms as the definition of ‘residential property’ in s 116(1)(a), save that it applies to a ‘single’ dwelling. 46. A building counts as a dwelling if it is used or is suitable for use as a “single dwelling”. Schedule 6B Schedule 6B FA 2003 contains the provisions for “MDR”. The Schedule applies, inter 47. alia, to a chargeable transaction if its main subject-matter consists of “an interest in at least two dwellings”. Sub-para. 2(2) of Schedule 6B provides that: “Transactions to which this Schedule applies … (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.” 48. The focus of this appeal is a transaction within para. 2(2)(a). Paragraph 3 of Schedule 6B divides all chargeable transactions into either “single 49. dwelling transactions” or “multiple dwelling transactions”, as follows Key terms 3 (1) A chargeable transaction to which this Schedule applies is referred to in this Schedule as a “relevant transaction”. (2) ... (4) A relevant transaction is a “multiple dwelling transaction” 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. (5) In relation to such a transaction, those dwellings are referred to as “the dwellings”. Paragraph 4 of Schedule 6B provides for the calculation of “relief”. If it were found in 50. this case that there was an acquisition of two dwellings, then paras. 4 and 5 of Schedule 6B provide that SDLT is charged as follows: Step 1: Determine the tax that would be chargeable under Section 55 if the total (1) consideration was divided by the number of dwellings. (2) Step 2: Multiply the amount determined at step 1 by total dwellings. (3) But if the amount found at Step 2 is less than 1% of the total consideration, then the tax is that 1% amount. 51. Paragraph 7 of Schedule 6B defines what counts as a dwelling, as follows: “7 What counts as a dwelling (1) This paragraph sets out rules for determining what counts as a dwelling for the purposes of this Schedule. (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. (3) Land that is, or is to be, occupied or enjoyed with a dwelling as a garden or grounds (including any building or structure on such land) is taken to be part of that dwelling...” 52. Where MDR is available, the relief can lower the effective rate of SDLT by splitting the chargeable consideration between each dwelling, subject to a minimum SDLT charge of 1% on the total chargeable consideration. 53. Section 58D(2) provides that MDR “must be claimed in a land transaction return or an amendment of such a return”. Paragraph 6(3) of Schedule 10 provides that the time-limit for such a claim is twelve months from the date that the SDLT return was required to be delivered. Notifiable transactions 54. Section 77(1)(b) provides for “notifiable transactions”, as follows: “77 Notifiable transactions (1) A land transaction is notifiable if it is— (a) an acquisition of a major interest in land that does not fall within one or more of the exceptions in section 77A, (b) an acquisition of a chargeable interest other than a major interest in land where there is chargeable consideration in respect of any part of which tax is chargeable at a rate of more than 0% or would be so chargeable but for a relief, (c) a land transaction that a person is treated as entering into by virtue of section 44A(3), ... (d) a notional land transaction under section 75A or (e) a notional or additional land transaction under paragraph 5 of Schedule 2A. (2) This section has effect subject to— (a) sections 71A(7) ..., and (b) paragraph 30 of Schedule 15. (3) In this section “relief” does not include an exemption from charge under Schedule 3.” 55. Section 108 deals with “linked transactions”, and provides that: “Transactions are “linked” for the purposes of this Part of this Act if they form part of a single scheme, arrangement or series of transactions between the same vendor and purchaser or, in either case, persons connected with them.” 56. Section 81A provides, in respect of “linked transactions”, that: “81A Return or further return in consequence of later linked transaction (1) Where the effect of a transaction (“the later transaction”) that is linked to an earlier transaction is that the earlier transaction becomes notifiable, the purchaser under the earlier transaction must deliver a return in respect of that transaction before the end of the period of 14 days after the effective date of the later transaction. (1A) Where the effect of a transaction (“the later transaction”) that is linked to an earlier transaction is that— (a) tax is payable in respect of the earlier transaction where none was payable before and subsection (1) does not apply, or (b) additional tax is payable in respect of the earlier transaction, the purchaser under the earlier transaction must deliver a further return in respect of that transaction before the end of the period of 30 days after the effective date of the later transaction. (1B) For the purposes of subsections (1) and (1A), any tax or additional tax payable is calculated according to the effective date of the earlier transaction. (1C) Where a purchaser is required to deliver a return under subsection (1) or a further return under subsection (1A)— (a) that return must include a self-assessment of the amount of tax chargeable as a result of the later transaction, and (b) the tax or additional tax payable must be paid not later than the filing date for that return. (2) The provisions of Schedule 10 (returns, enquiries, assessments and other matters) apply to a return under this section as they apply to a return under section 76 (general requirement to deliver land transaction return), with the following adaptations— (a) in paragraph 5 (formal notice to deliver return), the requirement in sub-paragraph (2)(a) that the notice specify the transaction to which it relates shall be read as requiring both the earlier and later transactions to be specified; (b) references to the effective date of the transaction to which the return relates shall be read as references to the effective date of the later transaction. (3) This section does not affect any requirement to make a return under section 76 in respect of the later transaction.” Effective date of transaction 57. Section 119 deals with the “effective date of transaction”, as follows: “119 Meaning of “effective date” of a transaction (1) Except as otherwise provided, the effective date of a land transaction for the purposes of this Part is (a) the date of completion, or (b) such alternative date as the Commissioners for Her Majesty's Revenue and Customs may prescribe by regulations. (2) Other provision as to the effective date of certain descriptions of land transaction is made by— section 44(4) (contract and conveyance: contract substantially performed without having been completed), ... section 44A(3) (contract providing for conveyance to third party), section 45A(8) (contract providing for conveyance to third party: effect of transfer of rights), section 46(3) (options and rights of pre-emption) …” 58. On a notifiable transaction taking place, s 73 requires the purchaser to submit a land transaction return (i.e., an SDLT return) within 14 days of the EDT. Schedule 10: Enquiries and Closure Notices Paragraph 12 of Schedule 10, in relation to the “notice of enquiry”, provides, inter 59. alia, for the time-limit for opening an enquiry being nine months of the ‘relevant date’ of: (1) (2) (3) the filing date; the date of the return being delivered if after the filing date; or the date of amendment(s) made to a filed return. Paragraph 23 of Schedule 10 provides for the completion of an enquiry by the issue of a 60. “closure notice”. KEY SUBMISSIONS 61. The documents for the hearing, set out at [10] above, comprised pleadings, correspondence relating to HMRC’s enquiry and appeal correspondence. HMRC’s submissions 62. Ms Lawrence’s submissions can be summarised as follows: (1) To make a claim for MDR in the circumstances of this appeal, the chargeable interest acquired must be a building “in the process of being constructed or adapted” for use as a single dwelling. In other words, if the chargeable interest acquired does not include any buildings or parts of buildings that count as dwellings, then para. 2 of Schedule 6B FA 2003 is not satisfied and MDR will not be available. (2) There are two land transactions in this case, meaning there are two EDTs. ‘EDT1’ is the date the option was granted, that being 1 April 2021, and ‘EDT2’ is the date the option was exercised and completed (12 May 2021). At the time of completion (i.e., EDT2), the Property the Appellant acquired was entirely non-residential. It was a building previously used for commercial purposes as a Timber and Builders Merchants. As the EDTs in this appeal are different, s 108(2) FA 2003 does not permit one return covering the two transactions. (3) The transfer pursuant to the exercise of the option by the Appellant on 12 May 2021 constitutes a separate land transaction from the grant of the option. When the option was exercised on 12 May 2021, the previous grant option (on 1 April 2021) became notifiable under s 81A FA 2003. On completion of the purchase pursuant to the exercise of the option, the purchase price of £3,727,165 is linked with the option price of £3,600. The SDLT1 for the transfer in pursuance of the exercise of the option shows consideration of £3,727,165. Further SDLT is due on the option fee of £3,600. No SDLT return has been filed for the grant option. (4) SDLT is due on the grant of an option, and is governed by s 46 FA 2003. The seller could not sell the Property to another prospective buyer whilst the reservation agreement was in place. As such, the Appellant had an exclusive right to purchase the Property as no other prospective buyers could have purchased the property during that period. The option gives the purchaser a right of pre-emption over a property, to ensure that the seller negotiates solely with the purchaser over a period of time, and these agreements are given the same tax treatment as options for SDLT purposes. The option is ‘an interest or right over land’ and the option is a ‘chargeable interest’. Therefore, the option is treated as a ‘land transaction’. As a result of the option being classed as a ‘land transaction’, it is also classed as a ‘chargeable transaction’ under s 49 FA 2003. As the ‘land transaction’ is a chargeable transaction, consideration has to be given to the amount of tax chargeable under s 55. (5) No evidence of construction has been provided by the Appellant that pre-dates ‘EDT2’. Because the underlying land was non-residential property, the rates applicable to the option are those which apply to non-residential property and therefore, the rates of SDLT at Table B of s 55 FA 2003 apply. (6) The planning decision notice from 2017 confirms that Wandsworth Council approved only the demolition of the existing building. This does not constitute physical manifestation of multiple dwellings. The metadata of the photographs provided by the Appellant on 1 August 2024 appears to have been removed, meaning the photographs are undated. As such, these photographs do not provide evidence of when the construction works commenced. Furthermore, the extent of the works shown in the photographs (the removal of the roof) would constitute preliminary or preparatory works (i.e., the types of work prior to the physical manifestation of a dwelling). Appellant’s submissions 63. The Appellant’s submissions (as set out in the Grounds of Appeal) can be summarised as follows: (1) The Appellant purchased the land with the benefit of planning permission to construct 17 residential dwellings. The construction had already begun at the EDT (i.e., 12 May 2021). (2) The option to purchase is treated as a land transaction. The option agreement was the sole subject-matter of the transaction and is the relevant land and, as it does not meet any of the definitions of ‘residential property’, falls to be taxed as ‘non- residential’, under Table B of Schedule 55. (3) Therefore, the Appellant qualifies for MDR. 64. Mr Symons’ submissions (as set out in the Skeleton Argument) can be summarised as follows: (1) There was the physical manifestation of a building when the Property was purchased. Planning approval was obtained to build 17 residential buildings on the Property (2) on 23 March 2021. From the statutory declaration provided by Mr Field, demolition and excavation (3) works had been carried out on the site by 15 April 2021. 65. At the conclusion of the hearing, we reserved our decision, which we now give with reasons. We have considered any key points of disagreement in determining the facts as set out below. Our conclusions regarding the key submissions are set out in our “Discussion”, later. FINDINGS OF FACT 66. The “Background Facts” are not in issue between the parties, save that the parties differ in view as to the conclusions that we should reach as a result. We, therefore, adopt the Background Facts, at [11] to [31] above, as our “Findings of Fact”, and do not repeat these here. Additionally, we are satisfied that the following facts were proved: Prior to the acquisition, the Property was used for commercial purposes as a (1) Timber and Builders’ Merchants. (2) Prior to the decision to issue a Closure Notice, and at the date of the hearing before us, the Appellant did not provide any evidence of construction that pre-dates the EDT in this appeal. The photographs provided do not contain any date stamps. DISCUSSION 67. The Appellant appeals against a Closure Notice issued by HMRC under para. 23 of Schedule 10. The jurisdiction of the FtT is fixed - and defined - by the terms of the Closure Notice, as confirmed by the UT in Daarasp, at [25(7)]. In Shinelock, the UT pointed out that Daarasp had set out ten principles which could be drawn from the leading authorities in relation to the issue of “the matter in question” in a closure notice. The Closure Notice in this appeal arose as a result of HMRC’s conclusion that the Appellant’s purchase of the Property consisted, entirely, of ‘non-residential’ property, giving rise to additional SDLT of £138,426 due on the Purchase. PRELIMINARY ISSUE: APPLICATION FOR AN ADJOURNMENT 68. The Appellant had previously applied to have these proceedings postponed/adjourned. A renewed application for an adjournment was made by Mr Symons at the commencement of the hearing. 69. The decision as to whether or not to adjourn is a case management one involving the exercise of discretion, having regard to the overarching principles of fairness and justice. The decision must, of course, be a principled one. The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 SI 2009/273 (“the Procedure Rules”) provide the framework for proceedings before the FtT. The case management powers of the FtT are provided for at Rule 5, as follows: “Case management powers 5.—(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure. (2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction. (3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may by direction— … (e) deal with an issue in the proceedings as a preliminary issue; …” 70. We proceed to deal with the postponement/adjournment applications made by the Appellant in these proceedings. 71. On 20 January 2026, the Appellant had made an application for a postponement of the hearing, and for revised directions for the submission of the Appellant’s Document Bundle, Authorities and Skeleton Argument. On the same date, the application for a postponement was refused by Judge Pettifer. 72. On 11 February 2026, HMRC provided a copy of the Authorities Bundle and requested that the FtT issue an “Unless Order” in respect of the Appellant’s failure to provide its Skeleton Argument. HMRC further requested that the Appellant confirm the attendees for the hearing. On the same date, Judge Sukul declined to issue an Unless Order as she was not satisfied that it was in the interests of fairness and justice to issue such an order. However, Judge Sukul stated that the issue of the Appellant’s failure to comply with the Tribunal’s Directions would be considered at the start of the hearing. The Appellant was further directed to confirm, by no later than 5pm on 13 February 2026, who would be attending the hearing on 17 February 2026. 73. On 13 February 2026, the Appellant made another application for a postponement (on medical grounds). On the same date, Judge Brooks refused the application in the absence of medical evidence to substantiate the claimed medical reasons affecting attendance. The Appellant was, once again, required to confirm its attendees for the hearing. By the date of the hearing, the Appellant had failed to provide either its Skeleton Argument, or list of attendees. The Appellant’s Skeleton Argument was provided by Mr Symons, who was instructed shortly before the hearing. 74. At the commencement of the hearing before us, Mr Symons renewed the request for an adjournment, on medical grounds. The issue as to whether or not to adjourn a hearing on medical grounds has been the subject of much adjudication and consideration. 75. In Fitzroy Robinson v Mentmore Towers [2009] EWHC 3870 (TCC) (‘Fitzroy’), at [8] to [9], Coulson J set out some of the factors that are relevant to an 11th hour application to adjourn a trial (and in particular upon how late the application is made). Each case must, however, turn on its own facts. Coulson J said this: “Relevant Principles 8. What are the relevant principles governing an application of this kind? It seems to me that the starting point is the overriding objective …Thus, the court must ensure that the parties are on an equal footing; that the case - in particular, here, the quantum trial - is dealt with proportionately, expeditiously and fairly; and that an appropriate share of the court's resources is allotted, taking into account the need to allot resources to other cases. 9. More particularly, as it seems to me, a court when considering a contested application at the 11th hour to adjourn the trial, should have specific regard to: a) The parties' conduct and the reason for the delays; b) The extent to which the consequences of the delays can be overcome before the trial; c) The extent to which a fair trial may have been jeopardised by the delays; d) Specific matters affecting the trial, such as illness of a critical witness and the like; e) The consequences of an adjournment for the claimant, the defendant, and the court.” 76. The application for an adjournment was made on the basis that Mr Richard Cardash, the director, had to attend a medical appointment. Mr Symons referred us to a letter from the Royal Brompton Hospital, dated 20 January 2026, in support of the application. Having considered the contents of the letter, we were satisfied that it did not provide an explanation for the absence of any of the Appellant’s witnesses. The letter clearly showed that an appointment took place on 16 February 2026. The date of the hearing was 17 February 2026. Therefore, the letter did not substantiate any claim to be unable to attend the hearing on 17 February for medical reasons. 77. More importantly, the Appellant had been directed to provide its list of attendees. The Appellant has continuously failed to provide its list of attendees. Mr Richard Cardash, his son (Mr Rupert Cardash) and Mr Gordon were all not in attendance, despite the refusal of an adjournment. 78. The Procedure Rules provide that: “Hearings in a party’s absence 33. If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal— (a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and (b) considers that it is in the interests of justice to proceed with the hearing.” 79. It is clear that the Appellant had received notification of the hearing given the previous applications for a postponement/adjournment, which were refused. Having considered all of the information before us, cumulatively, we were satisfied that it was in the interests of justice to proceed with the hearing. This was not a hearing in absence as the Appellant was represented throughout the hearing. We, therefore, refused the application and proceeded to hearing the appeal. 80. On 20 and 24 February 2026, after the hearing had already concluded, the Tribunal received correspondence on behalf of the Appellant. This was a late (renewed) application to adjourn on medical grounds. The correspondence included medical letters and further evidence relied on in support of the appeal. 81. The correspondence dated 20 February 2026 was set out in the following terms: “Apologies for not writing previously and attending the hearing. Unfortunately, both co- director Rupert Cardash and I were unable to attend due to severe medical problems. We were also both unaware that medical evidence would be required prior to the hearing and in any event, it was difficult to communicate with any of the doctor's providing treatment until yesterday. In addition, we were not given enough time to provide for further witness statements and further information regarding the building program and how the new build incorporates the existing basement and walls. This will be available in the next couple of days, which I will forward to you. This is a unique case with our original advisors going bust and our file regarding this matter was missing until a few days prior to the hearing and therefore no additional information could be obtained. Could we submit that these were extenuating circumstances which led to our asking for a deferment and in addition having to instruct a KC to act on our behalf literally 24 hours before the hearing. If we had been asked for this information, I am sure this could have been obtained within the original time scale. I would therefore respectfully request a deferral or any other remedial actions prior to a final decision being made. Hoping to hear from you with your response shortly.” 82. Having considered the correspondence dated 20 February 2026, we firstly find that whilst the Appellant’s director refers to not being aware that medical evidence would be required to support an application for a postponement/adjournment prior to the hearing, this does not sit well with the decision refusing the postponement application, issued by Judge Brooks on 13 February 2026. Judge Brooks’ decision clearly states that the application would be refused in the absence of medical evidence. Secondly, we find that the suggestion that the Appellant was not afforded sufficient time to provide witness statements fails to have regard to the Standard Listing Directions issued by the Tribunal, which the Appellant failed to comply with despite the renewed Directions issued by Judge Sukul. Thirdly, whilst reference is made by the Appellant to only having 24 hours to instruct a KC, this fails to consider the fact that this hearing was listed a considerable period of time ago, giving the Appellant sufficient time to instruct a representative. The Appellant has always known when the hearing was scheduled to take place. Furthermore, it is clear that the Appellant was able to instruct Counsel as Mr Symons attended the substantive hearing and provided a Skeleton Argument to assist the panel. 83. The correspondence dated 20 February 2026 was accompanied by a letter (dated 18 February 2026) from Dr Rakesh Kapila, of South Kensington Clinic. The letter from Dr Kapila is set out in the following terms (and solely relates to Mr Rupert Cardash): “I can confirm that I have spoken to the above patient who is known to suffer with acute anxiety issues and has been under the care of a specialist. I understand from the patient that over the course of the last 10 das he has had a further severe anxiety episode and thus was unable to attend his appointment yesterday.” [Emphasis added] 84. In Levy v Ellis-Carr [2012] EWHC 63 (Ch) (‘Ellis-Carr’), Norris J gave guidance on the proper approach to the assessment of the medical evidence relied on in support of an adjournment application, as follows: “Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion and what arrangements might be made (short of an adjournment) to accommodate the party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case) ...” 85. The guidance given by Norris J has been approved in a number of later decisions, including by Lewison LJ in Forresters Ketley v Brent [2012] EWCA (Civ) 324 (‘Forresters’), at [26], and again by the Court of Appeal in GMC v Hayat [2018] EWCA (Civ) 2796 (‘Hayat’), at [48]. In the Forresters case, Lewison LJ said this, at [25]: “Judges are often faced with late applications for adjournments... An adjournment is not simply there for the asking. While the court must recognise that litigants in person are not as used to the stresses of appearing in court as professional advocates, nevertheless something more than stress occasioned by the litigation will be needed to support an application for an adjournment. In cases where the applicant complains of stress-related illness, an adjournment is unlikely to serve any useful purpose because the stress will simply recur on an adjourned hearing."” 86. Hayat provides support for the proposition that, in considering the weight to be attached to a particular medical report, the court is entitled to look at it in light of the history and the other materials available to it. In that case, Lang J had allowed an appeal from a decision of the Medical Practitioners Tribunal on the basis that the tribunal had failed to adjourn proceedings against the appellant in light of a sick note he produced which advised that he was not fit for work. Lang J's decision was overturned by the Court of Appeal. Coulson LJ said, at [45], that Lang J appeared to conclude that because the sick note post- dated earlier evidence of the appellant's condition, “it somehow trumped all that had gone before it”. 87. At [56], Coulson LJ said this: “Finally, I consider that the Tribunal was entitled to weigh up the (inadequate) sick note against all of the other material available to them. This included not only the existing medical evidence (and the fact that the sick note was broadly consistent with that other evidence, and not contrary to it) but also the fact that [the appellant] had already made three unsuccessful applications to adjourn this hearing on entirely different grounds, each without success.” 88. Whilst not suggesting that Mr Cardash does not suffer from anxiety, we find that the letter from Dr Kapila is in general terms and it is clear that the information set out by Dr Kapila in relation to the recent anxiety episode was as a result of self-reporting. This is evident from use of the words “I understand from the patient”. There is no suggestion that any mental state examination was conducted by Dr Kapila to support the conclusion that Mr Cardash was unable to take part in a hearing on 17 February 2026 due to an acute anxiety episode. The letter from Dr Kapila further does not provide any prognosis, whatsoever. Moreover, we find that the letter fails to set out when Mr Cardash would have been in a position to take part in a hearing where reasonable adjustments could have been made. In Decker v Hopcraft [2015] EWHC 1170 QB (‘Decker’), at [27] to [28], the High 89. Court said this: “27. …the question of whether the litigant can or cannot participate in the hearing effectively does not always have a straightforward yes or no answer. There may be reasonable accommodations that can be made to enable effective participation. The court is familiar with the need to take this approach, in particular with vulnerable witnesses in criminal cases. A similar approach may enable a litigant in poor health to participate adequately in civil litigation. But the court needs evidence in order to assess whether this can be done or not and, if it can, how. 28. the question of whether effective participation is possible depends not only on the medical condition of the applicant for an adjournment, but also, and perhaps critically, on the nature of the hearing, the nature of the issues before the court and what role the party concerned is called on to undertake. If the issues are straightforward and their merits have already been debated in correspondence, or on previous occasions, or both there may be little more that can be usefully be said. If the issues are more complex but the party concerned is capable, financially and otherwise, of instructing legal representatives in his or her place and of giving them adequate instructions their own ill health may be of little or no consequence. All depends on the circumstances as assessed by the court on the evidence put before it.” 90. As mentioned earlier, this was a late renewed application for an adjournment on medical grounds following the conclusion of the hearing. The case of Mohun-Smith v TBO Investments Ltd [2016] EWCA (Civ) 403 (‘Mohun-Smith’) emphasised that there is a material and important distinction between an application for an adjournment of trial, and an application to set aside a judgment entered in default because of the non-attendance of a party. The decision indicates that the court should not, in general, adopt too rigorous an approach to the question of whether a good reason has been shown for non-attendance in the context of an application to set aside a decision, but that a rigorous approach is justified in the context of an adjournment application. Lord Dyson MR explained why, at [26]: “If the court refuses an adjournment, there will usually be a trial and a decision on the merits, although the unsuccessful applicant will be at a disadvantage, possibly a huge disadvantage, by reason of the absence of the witness or the party himself. Despite their absence and depending on the circumstances, it may still be possible for the disadvantaged claimant to prove the claim or the disadvantaged defendant to resist it. I accept that in some cases the refusal of an adjournment will almost inevitably lead to the unsuccessful applicant losing at trial. That is a factor that must be borne in mind when the court exercises its discretion in deciding whether or not to grant an adjournment. But if the application to set aside a judgment under rule 39.3(3) fails, the applicant will have had no opportunity whatsoever to have an adjudication by the court on the merits. The difference between an application under rule 39.3(3) and an application for an adjournment of the trial is important. Although it has not been articulated as the justification for generally adopting a more draconian approach to the application for an adjournment than to an application under rule 39.3(5), in my view it does justify such a distinction." 91. As a general rule, a good reason will have to be demonstrated in order to secure an adjournment. There are strong practical and case management reasons for this, particularly in the contemporary litigation culture with its emphasis on efficiency and expedition. 92. The correspondence dated 20 February 2026 from the Appellant was further accompanied by a letter, dated 18 February 2026, from Mr John Paterson (Architect). The letter states that work started on the Property in April 2021. Despite being aware of the issues raised in the appeal from the time that the Review Conclusion Letter was issued, and despite the Directions issued by the Tribunal leading up to the hearing, the Appellant did not submit any evidence prior to the date of the hearing. Furthermore, the correspondence post-dates the hearing, was not supported by an application to admit late evidence and does not shed any real detail on the nature of the work that Mr Paterson was referring to as having commenced on the Property (i.e., whether it was ‘relevant’ work for SDLT purposes). We bear in mind that a key consideration to the admission of late evidence is its relevance; the presumption being that all relevant evidence should be admitted unless there is a compelling reason to the contrary: Mobile Export 305 Ltd & Anor v R & C Comrs [2007] EWHC 1737 Ch (per Lightman J). An application to admit late evidence must, however, be made in writing. 93. The correspondence from the Appellant, dated 24 February 2026, included a photograph of the same appointment letter from the Royal Brompton Hospital that Mr Symons had already provided. We have already determined that the appointment was for a date other than the date of the hearing when we refused to adjourn the hearing 17 February 2026. This letter does not, therefore, take the Appellant’s renewed application any further. 94. The full parameters of the case that the Appellant was required to meet were set out in the Review Conclusion Letter, and followed up by the Statement of Case. The issues were clear and narrow, and the Appellant has been provided with the opportunity to address the issues. The overriding objective is the overarching consideration within the Procedure Rules. This provides for, inter alia, dealing with a case in light of the complexity of the issues and the costs provides that: “Overriding objective and parties' obligation to co-operate with the Tribunal 2.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes— (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; … (3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules; or (b) interprets any rule or practice direction…” 95. The parties have a duty to assist the Tribunal in furthering the overriding objective. The Appellant has failed to do this and now seeks to cure defects in the refusal to adjourn, and in its case, after the hearing had concluded. There is no merit in the argument that the Appellant has not had the opportunity to provide any evidence in support of its appeal. 96. We are satisfied that the written submissions made in the correspondence dated 20 and 24 February 2026 simply sought to remedy the defects of the renewed application for a postponement that had been made by Mr Symons at the commencement of the hearing. It is wholly insufficient for the Appellant to seek to cure the defects in the application, and indeed in its case, after the conclusion of the hearing. SUBSTANTIVE ISSUES: SDLT AND THE AVAILABILITY OF MDR 97. The parties have diametrically opposed views as to what the acquisition in this appeal constituted. 98. HMRC submit there are two land transactions, and two EDTs, in this appeal: (1) “EDT1” is the date that the option was granted (i.e., 1 April 2021); and “EDT2” is the date the option was exercised and the purchase completed (i.e., 12 (2) May 2021). 99. In further amplification of these submissions, Ms Lawrence submits that the Appellant acquired the option to purchase non-residential property (i.e., EDT1). Upon exercising the option, the Appellant acquired that non-residential property (i.e., EDT2). HMRC therefore submit that the main subject-matter of the transaction was not “used or suitable for use as a dwelling”, or in the process of being “constructed or adapted” for such use. In reliance on Ladson, Ms Lawrence submits that there was no physical manifestation of the dwellings at the EDT2 (para. 7 Schedule 6B FA 2003). Therefore, Paragraph 2 Schedule 6B FA 2003 is not satisfied, and MDR is not available. Ms Lawrence also submits that no evidence of positive construction of the dwellings has been provided by the Appellant. 100. Ultimately, Ms Lawrence submits that the test is to consider whether, at the time of completion, the whole or part of a building was in the process of being constructed to be suitable for use as a dwelling. This is an objective assessment by reference to the facilities present or physical manifestations of construction of a building or buildings that will become multiple dwellings. 101. Mr Symons, alternatively, submits that prior to completion the seller had engaged Roskerry Buildings Limited (on 30 April 2021) to prepare the building on the site for conversion to 17 dwellings. Mr Symons further submits that the seller had commenced work, which was continued by the Appellant at EDT2. 102. We have considered the relevant statutory scheme as to whether the actual transaction answers the statutory description. The relevant statutory scheme 103. The correct modern approach to the interpretation of tax statutes is that the court's task - within the permissible bounds of interpretation - is to give effect to Parliament's purpose. In this regard, controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment. In seeking the purpose of a statutory provision, the interpreter is not confined to a literal interpretation of the words, but must have regard to the context and scheme of the relevant Act as a whole. 104. The general principles of statutory interpretation were explained by Lord Hodge in R (O) v Secretary of State for the Home Department [2022] UKSC 3, [2023] AC 255, at [29] to [32]. The task is to identify the meaning of the words that Parliament has used. Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole, and in the wider context of a relevant group of sections. Other provisions in a statute - and the statute as a whole - may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are, therefore, the primary source by which meaning is ascertained. External aids to interpretation must play a secondary role. Explanatory Notes (prepared under the authority of Parliament) may cast light on the meaning of particular statutory provisions. 105. In Fanning v HMRC [2023] EWCA Civ 263 (‘Fanning’), at [30] (Peter Jackson, Lewis and Falk LJJ), the Court of Appeal said this: “30. The modern approach to statutory interpretation was conveniently summarised by Lewison LJ in Pollen Estate Trustee Co Ltd v HMRC [2013] EWCA Civ 753; [2013] STC 1479 at [24]: “24. The modern approach to statutory construction is to have regard to the purpose of a particular provision and interpret its language, so far as possible, in a way which best gives effect to that purpose…” 106. For the purposes of interpreting the scope and application of the SDLT legislation, it is necessary that the legislation is construed ‘purposively’. We are further required to determine the nature of the transaction to which the taxing provision is intended to apply, and to then decide whether the actual transaction answers the statutory description. 107. SDLT was introduced as a new tax by Part 4 FA 2003. It replaced stamp duty in relation to land. The legislative framework is largely contained in FA 2003. There are three elements to the charge to SDLT: (1) (2) (3) the ‘acquisition’; of a ‘chargeable interest’ in land; for ‘chargeable consideration’. 108. SDLT is charged on the ‘chargeable consideration’ for the transaction; which is generally any consideration in money or money’s worth given for the subject-matter of the transaction - whether directly or indirectly - by the purchaser or a person connected with him. At the relevant time, SDLT returns were generally required to be submitted, and tax paid, within 14 days of the EDT; which is generally the date of completion (ss. 76 and 119 FA 2003). Unlike stamp duty, SDLT is a tax on transactions rather than documents, and is subject to a self-assessment regime. The transactional heart of SDLT is reflected in the structure of the taxation set out in FA 2003, which sets out detailed rules for determining when the charge arises on the land transaction. 109. A ‘dwelling’, in the MDR legislation (para. 7, Schedule 6B), refers to: a building or part of a building which is “suitable for use as a single dwelling” or (1) is in the process of being “constructed or adapted” to such use; land that is to be occupied or enjoyed with a dwelling, such as a garden or (2) grounds; (3) land that subsists (or will subsist) for the benefit of a dwelling; and (4) an “interest in a building or part of a building” which is to be constructed or adapted for such use as a single dwelling, construction or adaption of which has not yet begun, where that interest is included in a substantially performed contract. 110. The effect of MDR is to lower the effective rate of SDLT by splitting the chargeable consideration among the number of dwellings which are the subject-matter of the land transaction. MDR has now been abolished, with effect from 1 June 2024. 111. With those principles in mind, we turn to the circumstances of this appeal. It is pertinent to note that the Appellant accepts that the Property acquired was a commercial building. This matter is not in issue between the parties. The matter for consideration is the nature of the chargeable interest that was acquired. Issue 1: Whether the main subject-matter of the transaction consisted of an interest in “at least two dwellings" for the purpose of Schedule 6B at the EDT and/or whether the Property was in the process of “being constructed or adapted” for use as a dwelling at the EDT To qualify for MDR, a chargeable transaction must fall within either para. 2(2) or 2(3) 112. of Schedule 6B, and must not be excluded by para. 2(4). Paragraph 2(2) of Schedule 6B provides for MDR to be available only where the “main subject-matter” of a transaction consists of an interest in two or more dwellings. Paragraph 7(2)(b) of Schedule 6B explains what is to count as a ‘dwelling’. Paragraph 7(2)(b) is not, however, the operative provision that provides for MDR to be available, but is part of a wider definition of what is to count as a dwelling that is used to answer the question posed by para. 2(2)(b), which involves a consideration of the nature of the chargeable interest acquired. The operative provision is, therefore, found in para. 2. 113. In Ladson, the UT said this, at [32] and [38]: “32. … the question whether MDR is available involves an analysis of the “chargeable interest acquired” and whether that chargeable interest consists of an interest in at least two dwellings and other property. Paragraph 7(2)(b) explains what is to count as a “dwelling” for these purposes but is not the provision that itself confirms MDR. In our judgement it is significant that the relevant question on which availability of MDR depends involves an examination of the nature of the chargeable interest that is acquired.” … 38. When paragraph 7(2)(b) is considered in its proper context, there is a clear indication that it is referring to some physical manifestation of a dwelling on the relevant land. The most obvious indication comes from the use of the word “building”. We agree, of course, that paragraph 7(2)(b) does not require that there be a completed building since it is concerned with buildings that are in the “process of being constructed”. However, in our judgement, a “building” can only be said to be “in the process of being constructed” if there is some physical manifestation of what is ultimately to become that “building”. Without such physical manifestation, there might well be an intention to construct a future building, perhaps even a firm intention, but no building that is in the process of being instructed.” In Mudan, the only issue before the UT was whether the property was “suitable for use 114. as a dwelling” at the time of completion of the purchase. The UT said this, at [48]: “Assessing suitability for use as a dwelling when building requires repair or renovation 48. To recap, we have concluded as follows: (1) This issue raises a question of law. (2) The relevant wording must be construed by reference to the words used, in context, and taking into account the purpose of the legislation. That purpose is as described in Ridgway. (3) The context, particularly the various classes of building treated as suitable for use as a dwelling, suggests a focus on the fundamental characteristics and nature of a building over a period of time, rather than a snapshot of habitability, at the effective date. (4) Some guidance on the meaning of the phrase can be drawn from Fiander UT.” 115. And, at [58]: “58. In our opinion, the following points should be considered in determining the impact of works needed to a building on its suitability for use as a dwelling: (1) In assessing the impact of the works needed to a building in the context of determining suitability for use as a dwelling, a helpful starting point is to establish whether the building has previously been used as a dwelling. That is relevant for two reasons. First, as we said in in Fiander UT, previous use as a single dwelling is relevant in determining whether an alteration needed to a building would be a repair or renovation (because of prior use as a dwelling) or, alternatively, an adaptation or alteration, changing the building’s characteristics by making it usable as a single dwelling for the first time. Second, actual use as a dwelling is a very strong indication that the building has possessed the fundamental characteristics of a dwelling, and has previously been suitable for use as a dwelling. An assessment of the repairs and renovations needed can then be made against that backdrop and by reference to the state of the building during its actual use as a dwelling. Previous use is, of course, fact sensitive, and factors such as the length of time between the previous use as a dwelling and the effective date will be relevant. The fact of previous use as a dwelling does not mean that a building remains suitable for use as a dwelling regardless of what happens to the building and regardless of the effluxion of time. Equally, to state the obvious, the fact that there has been no previous use as a dwelling does not mean that a building is not suitable for use at the effective date. However, previous use is a highly relevant factor in the evaluation of suitability. (2) Looking at the building as at the effective date, an assessment must be made of the extent to which it has the fundamental characteristics of a dwelling, including the extent to which it is structurally sound. Is it, for instance, a desirable house which has become dilapidated and requires updating, or is it an empty shell with no main roof? Subject to the points which follow, in principle the former is likely to be suitable for use as a dwelling and the latter is not. (3) The necessary works should be identified, and their impact on suitability for use should be considered collectively. A distinction must be drawn between works needed to render a building habitable and works to be carried out to make the property “a pleasant place to live”, in the words used by the FTT at FTT [30] (such as painting and decorating). The latter do not affect suitability for use as a dwelling. (4) An assessment should be made of whether the defects in the building which require works are capable of remedy (in colloquial terms, are fixable). That assessment should take into account whether the works would be so dangerous or hazardous as to prejudice their viability (as in Bewley). If they would, then the building is unlikely to be (or remain) suitable for use as a dwelling. It should also take into account whether the works could be carried out without prejudicing the structural integrity of the building (because, for instance, the walls might collapse). If they could not, the building is unlikely to be suitable for use as a dwelling. (5) If occupation at the effective date would be unsafe or dangerous to some degree (for instance, because the building requires rewiring), then that would be a relevant factor, but would not of itself render the building unsuitable for use as a dwelling. (6) The question of whether a repair would be a “minor repair” is not irrelevant, but nor is it particularly informative in assessing suitability. While certain repairs were described as “minor” in Fiander FTT, that classification was not a reason for the decision in Fiander UT. It is too vague and abstract to form a principled basis for the overall determination of the impact of the need for repair on suitability. For the same reason, an approach which seeks to establish whether the necessary works are “fundamental” is acceptable if it is effectively shorthand for the approach we describe above, but as a freestanding test it is not particularly informative. (7) Applying the principles we have set out, the question for determination is then whether the works of repair and renovation needed to the building have the result that the building does not have the characteristics of a dwelling at the effective date, so it is no longer residential property.” 116. The Appellant agrees that the UT’s decision in Ladson is relevant to the appeal. The UT in Mudan endorsed the approach in Ladson, at [46] to [47]: “46. …Although Ladson Preston concerned multiple dwellings relief, the approach set out in that decision is applicable in contexts such as that in this appeal. In HMRC v Suterwalla [2024] UKUT 188 (TCC), the Upper Tribunal stated as follows, at [48]-[49]: 48. In our view, the relevant points to be taken from [61] and [62] of Ladson Preston are as follows: (1) Debates about whether the definition of effective date in section 119 specifies the entirety of a day or a particular point in time have no bearing on the availability or otherwise of a particular SDLT relief or treatment, which turns on the nature of the subject matter of the chargeable transaction. (2) In such a case, the availability or otherwise of a relief or treatment depends on the nature of the chargeable interest acquired (see section 43(6)). (3) Where, as in this case, the chargeable interest is acquired at completion of the relevant land transaction, the chargeable interest acquired is the chargeable interest that exists at the time of completion. (4) Whether a particular SDLT relief or treatment applies requires an analysis of the nature of the chargeable interest acquired at completion. 49. We consider that the approach described by the UT in Ladson Preston and encapsulated in the points above is not restricted to cases where the issue is whether the subject matter of a transaction consists of multiple dwellings. It is relevant whenever the particular SDLT treatment or relief turns on the nature of the subject matter of a chargeable transaction. 47. So, the focus of the enquiry made necessary by the wording in section 116 is to determine whether the essential characteristics and nature of the chargeable interest that is acquired are those of a dwelling (rather than, say, a plot of land), notwithstanding that it needs repair and renovation.” 117. In Ladson, the UT said this, at [43] to [44]: “43. We accept of course, that a physical manifestation of construction works cannot of itself be enough to satisfy the requirements of paragraph 7(2)(b). For example, even if foundations and the beginnings of a wall are present on a piece of land, it is still necessary to consider whether there is building that is in the process of being constructed for use as a single dwelling. However, we do not consider that question raises any of the difficulties we have outlined in paragraphs 41 and 42. The final use of the building will, in most cases, be capable of being demonstrated by reference to the planning permission granted, where relevant, architect’s plans or similar. 44. Our first conclusion on the question of construction, therefore, is that the grant of planning permission for the construction of dwellings on bare land is not in itself enough to satisfy the requirements of paragraph 7(2)(b) because, properly construed, paragraph 7(2)(b) requires some physical manifestation on the land before it can be said that there is a building in the process of being constructed for use as a single dwelling.” 118. Turning to the circumstances of this appeal: 119. In order to consider whether the transaction consisted of an interest in at least two dwellings, it is necessary to consider whether such buildings are “suitable for use as a dwelling”. Because of the arguments being relied on by the Appellant, it also necessary to consider whether a building was in the process of “being constructed or adapted” for use as a dwelling. 120. The Appellant submits that the Property was a dwelling for the purposes of para. 7(2) (b) of Schedule 6B because it was in the process of being constructed or adapted to use as a dwelling. The Appellant’s position is that the Property qualifies for MDR because planning approval was obtained to build 17 residential buildings on the Property, on 23 March 2021. We had the benefit of seeing the Planning Permission (Variation/Removal of Condition) from Wandsworth Council. The document is dated 23 March 2021 and refers to the Property. This does not, however, support a finding that the property was in the process of being constructed or adapted for use as a dwelling. This is because whilst obtaining planning permission can show the intention to build dwellings in the future, the planning permission only provides permission for it to be done and is not sufficient evidence to show that construction or works are underway. Importantly, the Appellant refers to construction/adaptation. This supports the conclusion that no buildings were being used (or were suitable for use) as a dwelling. Obtaining planning permission is not part of the construction/adaptation of a building. 121. By a letter dated 14 April 2022, the Appellant’s agent said this: “The previous vendor had already started the demolition work prior to Shinebrook Limited purchasing the property. Jeffery Field was employed by the previous vendor to confirm that work had been started in accordance with the planning permission. Shinebrook Limited carried on with the demolition work on the day of completion.” 122. In support of the argument that the Property was in the process of being adapted for use as a dwelling, the Appellant relies on the statutory declaration (dated 30 April 2021) from Mr Jeffrey Field (Chartered Town Planner and Chartered Surveyor) as to the use of the Property. We have had the benefit of considering Mr Field’s statutory declaration. In his statutory declaration, he says this: “5. I have reviewed the planning history for the site, especially planning permission ref 2016/5209, which has been subject to two VOC applications as well as related AOC applications. … 9. I visited the site on 15 April 2021 to observe works that had been started by 1 May 2021. I can confirm that the demolition and excavation operations were undertaken in accordance with the intention behind the said planning permission. 10. These works are in accordance with the planning permission ref 2016/5209. Therefore it is my opinion that the permission is extant and its development completed. 11. I provided Notice to the London Borough of Wandsworth Planning Department that the works had been started and this was acknowledged.” 123. Whilst Mr Field states that he visited the site on 15 April 2021, it is not clear how he was able to observe the works that had been started by 1 May 2021 as that date is later than the date of his visit. Mr Symons was only instructed shortly before the hearing and he could not shed any further light on what Mr Field was trying to say in this part of his statutory declaration. In his skeleton argument, Mr Symons says this: “Mr Field isn’t available to give evidence, but I think what he means is that work had started on the Property on 15 April 2021.” 124. Whilst this may have been Mr Symons’ understanding of what Mr Field intended to say, a submission is not evidence. Despite the matters urged upon us by Mr Symons, we cannot use the skeleton argument to analyse what Mr Field intended to say. We acknowledge, however, that Mr Symons was only instructed shortly before the hearing and we are grateful to him for the assistance given during the hearing. We find that there is considerable force in Ms Lawrence’s submission that Mr Field’s statutory declaration does not describe what, if any, physical works were witnessed by Mr Field, and that all that Mr Field refers to is “demolition” and not “construction”. 125. We have also seen the witness statement, dated 13 March 2025, prepared by Mr Oliver Gordon. The witness statement states, inter alia, that: “1. I can confirm that prior to Shinebrook’s ownership of the property known as ‘Land at 1023-1025 Garratt Lane’ the previous owners implemented the planning consent (that has subsequently been completed) which involved the demolition of existing commercial buildings and the development of 17 apartments over basement, ground, first and second floors. The images (referenced ‘garratt lane 1.jpg (through to 6)) and plans show the previous basement area that now forms part of the new build scheme. The date of the implementation of the planning consent was as per the statutory declaration by BNP Paribas, being the 1st May 2021. The new dwellings have been constructed over the existing footprint of the previous commercial property including the previous basement area.” 126. Whilst Mr Gordon refers to a statutory declaration by BNP Paribas, no such statutory declaration has been provided in support of the appeal. Indeed, Mr Field does not state that he represents BNP Paribas. 127. In an email to the Tribunal on 1 August 2024, Cornerstone Tax say this: “The dwellings were built on the existing footprint. Please see attached the existing and proposed plans (which were implemented) and an image of the basement below. Please see attached further pictures of the site. It is clear from the above and the initial particularised grounds of appeal that the property acquired by the Appellant was already in the physical process of adaption, the Appellants contend that the requisite manifestation of the 17 new dwellings as required by paragraph 7(2)(b) was present.” 128. We have already considered the fact that the only photographs that were submitted in this appeal were not date stamped. 129. We conclude, as the UT said in Ladson, that a building can only be said to be “in the process of being constructed” if there is some physical manifestation of what is ultimately to become that “building”. Without such physical manifestation, there might well be an intention to construct a future building, perhaps even a firm intention, but no building that is in the process of being instructed. This is not the situation that has arisen in the circumstances of this appeal. Whilst HMRC bear the burden of proof in relation to the validity of the Closure Notice, the Appellant (who has the burden of proving that he has been overcharged by the Closure Notices) has not sought to call any evidence in support of the appeal (at the time of the hearing). We have already considered the late evidence that the Appellant sought to rely on, which was submitted with the late, renewed application for an adjournment. 130. Having considered all of the evidence before us, cumulatively, we find that the Appellant has failed to establish that the Property was in the process of being constructed or adapted for use as a dwelling. Indeed, the documentary evidence relied on by the Appellant in this appeal has given rise to more questions, than answers. Consequently, therefore, the Appellant has failed to establish entitlement to MDR. Issue 2: Whether the acquisition of the option on 1 April 2021, and the acquisition of the property upon exercise of that option on 12 May 2021, were linked transactions 131. An option to purchase is an offer to sell, which is irrevocable for a stated period or until a stated event, made by the grantor of the option to the grantee (i.e., the Appellant). The grantee is entitled to convert the offer into a concluded contract to buy on giving the prescribed notice and complying with the conditions on which the option is made exercisable in any particular case. There must be a binding contract to keep the offer open, which requires either a deed or valuable consideration. The exercise of an option to purchase creates the relationship of seller and buyer from the date of the expiry of the notice exercising the option. The contract of sale arising from the exercise of the option will be an open contract, unless conditions of sale have been included in the option contract itself. 132. ‘Options’ rights are interests in land, but do not count as ‘major interests’. The acquisition of an option, and the acquisition of a right of pre-emption, are land transactions (s 46 FA 2003) and a charge to SDLT can arise in accordance with s 48 FA 2003. The sale, variation or surrender of an option, or pre-emption right, constitute the acquisition of a chargeable interest so can also be chargeable to SDLT. In accordance with s 55(1) and (4) FA 2003, and ss 116(1) FA 2003, the nature of the option or right of pre-emption as residential, mixed-use or non-residential property follows the nature of the underlying property over which the option or right of pre-emption is acquired. 133. The acquisition of an option, or right of pre-emption, is distinct from any land transaction that may arise on the exercise of such option or right. The effective date of an option or pre-emption agreement is the date of the acquisition of the agreement, unless the option or right of pre-emption forms part of another land transaction (e.g., an option contained in a lease). At the time of the acquisition of the option, SDLT is charged on the option price paid at the rate applicable to that price. As the grant of an option is not a major interest in land, the transaction (on grant) is only notifiable if there is SDLT payable, or relief is being claimed. If the option is subsequently exercised, SDLT is charged on the consideration paid on exercise, but the rate of charge is calculated to include the price that was paid on the grant (i.e., at the time of exercise, the grant and exercise are treated as “linked transactions”). 134. Transactions are linked, for SLDT purposes, if they form part of a series of transactions between the same seller and purchaser (or, in either case, persons connected with them). If two transactions are linked, the consideration for the two transactions has to be regarded as a whole, for the purposes of determining the rate of charge applicable. This ensures that SDLT cannot be mitigated, or avoided, by splitting a composite acquisition into smaller parts, or splitting acquisitions between different (connected) purchasers. The fact that two transactions take place between the same seller and purchaser does not automatically mean that they are linked. There must be something else that connects the transactions, amounting to a scheme, arrangement or series of transactions. This is a question of fact. 135. The form in which transactions are documented does not determine whether they are linked. The rule may be applied retrospectively. In Attorney-General v Cohen (1937) 1 KB 478 (‘Cohen’), the Court of Appeal held that: “In order that transactions form a “series” …there must be some interdependence between them, and the fact that they are related by time and place and are effected by the same parties are casual matters which do not of themselves constitute the transaction a series.” 136. The legislative wording of s 108 FA 2003 is wider than the Cohen case. This is because the SDLT legislation links transactions that are simply part of a “single scheme” or “arrangement”. The Stamp Office appears to accept the principle that for transactions to be linked, there must be an attempt to split a composite transaction to secure an SDLT advantage. Any composite written or oral agreement, or a discount being offered for “bulk purchase”, indicates that transactions are linked for SDLT purposes. The question is whether the fact that the first transaction happened had affected the terms of the second transaction. 137. Linked transactions, with the same EDT, can be reported as a single notifiable transaction, using one SDLT return. Where completion occurs on different days, two or more returns should be made, with all returns noting that the transaction on a particular return is linked to other transactions. 138. The transaction to which the SDLT in dispute in this appeal relates is the purchase of the Property, as provided for in the contract of purchase, and completed by the transfer on 12 May 2021. The subject-matter of that transaction was of a property that was ‘non-residential’. We have found that no dwellings were in the process of being constructed. In accordance with ss 55(1), (4) and 116(1) FA 2003, the nature of the option or right of pre-emption follows the nature of the underlying property over which the option or right of pre-emption is acquired. The acquisition of the option by the Appellant is a land transaction. In accordance with s 45(3) FA 2003, the EDT of the option is 1 April 2021. It would not be regarded as the acquisition of a major interest in land. As no part of the consideration is chargeable at a rate of more than 0%, the acquisition of the option is not a notifiable transaction, in accordance with s 77(1)(b) FA 2003. Because the underlying land was non-residential property, the rates applicable to the option are those which apply to non-residential property. Therefore, the rates of SDLT at Table B of s 55 apply to the option. 139. The transfer pursuant to the exercise of the option on 12 May 2021 constituted a separate land transaction from the grant of the option. Pursuant to s 108 FA 2003, the two are linked transactions. Section 108 provides that: “Transactions are “linked” for the purposes of this Part of this Act if they form part of a single scheme, arrangement or series of transactions between the same vendor and purchaser or, in either case, persons connected with them.” 140. Therefore, the amount of SDLT chargeable on the Property, in the circumstances of this appeal, is £175,868. The SDLT calculated on the original SDLT return was £37,442. The difference of £138,426 is the amount of SDLT due in the Closure Notice. 141. Accordingly, therefore, the appeal is dismissed and the Closure Notice is upheld. RIGHT TO APPLY FOR PERMISSION TO APPEAL 142. 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: 16 April 2026 25