Linked Transaction - Aggregation for average SDLT rate?

[Mike5121]

I am the director of a small property company that includes in its trade the acquisition of properties falling within paras (3) and (4) Sch6A FA2003 (acquisitions from personal representatives of deceased owners, and "chain repair"), with the associated SDLT exemption.

The company has a property it owns 'under offer' to a non-associated party whose own buyer has pulled out. This company could take the position of that buyer and, under para (4), be exempt from SDLT on that purchase.

There would then however be a situation of 'linked transactions'. It would appear that the company's SDLT exemption would not affect the usual rules for aggregating consideration, with the result that the company's buyer would pay an increased rate of SDLT on his purchase from the company (ie the average rate that would applicable to a single purchase with consideration equal to the total consideration for both 'legs' of the associated transactions).

In researching this, it first appeared that the position of new housebuilders taking a buyer's house in part exchange could be distinguished, in that S.58 FA2003 as originally enacted provided for a deemed nil consideration (as distinct from an exemption) for the bought-in old property -thus triggering no SDLT liability for the builder on the buying-in, and no enhanced SDLT liability for the buyer of the new house.

But S.58 was replaced by para 17(2) Sch.39 FA2004, so that the housebuilders now have exemption, rather than there being deemed nil consideration. Which should mean that the buyer of their new house is liable to an enhanced rate of SDLT under the 'linked transactions' rules. Is this in fact the case? Do the Revenue take the point?