Stamp duty on second home- so confused

[Millicentmonster]

Aargh I was due to move house but my buyer has pulled out less than a week before completion . So now I am in the process of arranging a BLT on my existing house and getting a joint mortgage on the new house with my husband.
Originally I was going to buy the new house by myself as my husband already owns a flat. I can't afford the mortgage on my own so will have to get a joint mortgage with him. This will make us liable for an extra 3% stamp duty.
If I can then sell the existing house which is already back on the market can I reclaim the stamp duty if it sells within 3 years? If not, if my husband also sells his flat can we claim it back? Can I claim part of it back? So far I have asked my accountant, my solicitor and tried to ask the Inland Revenue and none of them can give me an answer.

Has anyone done anything similar or knows the answer?

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No. Neither of you are first time buyers if you own property. You just have to pay up and you cannot claim anything back. As if?!

On the gov website it says that if you're replacing your main residence but there is a delay, you might be able to claim back the higher rate of tax if your property sells within 3 years.
If you’re replacing your main residence
You won’t pay the extra 3% SDLT if the property you’re buying is replacing your main residence and that has already been sold.

If there’s a delay selling your main residence and it hasn’t been sold on the day you complete your new purchase:

you’ll have to pay higher rates because you own 2 properties
you may be able to get a refund if you sell your previous main home within 36 months

I think if both of you were to sell your other property within 3 years othen yes you could claim the extra tax back. However I’m not sure that would be the case if only one of you did. Might be worth asking your conveyancer?

In my opinion you will not be able to reclaim in these circumstances

If you are both going to own the new property and pay the 3% surcharge then you will need to sell both other properties to get the tax back.

Bubbles this isn't by choice. The chain was about to complete and my buyer pulled out. My house is back on the market but the sellers of the house I was due to buy have already moved out and won't wait for me to get a new buyer.
The Inland Revenue were unable to answer my question with a firm answer, considering it's their tax I would have expected them to know.
My solicitor didn't know and said ask your accountant, they told me to ask my mortgage advisor..

The general rule is you can only own one residential property. If you temporarily own two residential properties, you have to pay the higher rate stamp duty but you can claim a rebate if the first residential property is sold within 36 months of the purchase of the second residential property. If you own rental properties already, you will not have to pay higher rate stamp duty for the replacement of a residential property, only if you add to your rental portfolio. Check whether your husband's flat is on a residential or buy-to-let basis as you cannot have two residential mortgages. Bear in mind, if your husband takes out a mortgage to buy the new residential home, the lender will require him to be on the title deeds.

Are you in Scotland OP? We just bought a new house before selling our old one and paid £5000+ tax on it. However it states if we sell our original home within 18 months (hoping we can!) then it will be refunded. It’s not called stamp duty here though, but it’s an equivalent.

I think cad and tiglet have given you good advice so far, but there is another complication. If your husband's property is residential it does not matter whether he is on the new mortgage/title or not. A married couple are considered to be a unit and can only have one primary residence between them, even if they live apart - if he owns one residential property and you buy a second solely in your own name you would still be liable for he extra 3%.

We have been able to claim the 3% back after selling our previous main home although we have a BTL property as well. We originally had a main residence and a BTL, both of them in both our names. We bought a new house and had to pay the extra 3% at first, as we couldn't sell our main home. It managed to sell after 7 months and then we were able to claim the extra stamp duty back. It didn't matter that we still have a BTL as we were still replacing our main residence.

So I believe you'd be able to claim back your 3% if you sold your house (within 3 years). Your DH doesn't have to sell his flat.
HMRC guidance notes
Similar Guardian example

Thank you all, we are in England. My husband has a letting agreement on his flat and my house will be a BTL so the new house will be the main residence.
Thanks Cramant, that sounds very similar to the position we are in. The Estate Agents are currently cramming in viewings as I've warned them we will be putting it to let if it doesn't sell fast as the mortgages need paying.