SDLTM31920 | Application - Powers of Attorney and SDLT

Powers of Attorney and SDLT

Where a declaration in a land transaction return is to be made by an attorney pursuant to a General Power of Attorney, by an attorney appointed under section 10 of the Powers of Attorney (Northern Ireland) 1971 or, in Scotland, by an attorney appointed under the common law of agency, the power of attorney must

be a valid power of attorney and

confer the power to deal with SDLT matters.

HMRC will normally expect to see SDLT matters referred to explicitly in the terms of the deed. Otherwise it will not be clear that the taxpayer intended to confer such a power on the attorney, or that they gave the appropriate informed consent.

In the absence of a valid power of attorney including powers to deal with SDLT matters, only the purchaser(s) can sign the declaration in a land transaction return.

Mortgage terms and conditions

HMRC has seen a number of cases where mortgage terms and conditions include a section headed ‘Power of Attorney’ which does not conform with either section 10 or section 4 of the Powers of Attorney Act 1971, or its equivalents, and does not explicitly refer to SDLT matters.

In these cases HMRC does not accept that the mortgage provider or their agent has been authorised to submit a land transaction return on the purchaser’s behalf and cannot disclose confidential taxpayer information to them. Information held by HMRC is strictly confidential in accordance with section 18 of the Commissioners for Revenue and Customs Act 2005 and will not be disclosed without an appropriate statutory mechanism.

However, if an appropriate Court Order has been obtained which rectifies an invalid Power of Attorney and orders that HMRC can disclose taxpayer information (where the Court considers this to be appropriate), HMRC will be able to disclose taxpayer information in conformity with the Order and a return can be filed under the rectified Power of Attorney.