Deadline: Solicitor missed SDLT holiday by a day
A conveyancing partner who asked the seller’s solicitor if he could backdate completion by a day to save his client stamp duty land tax (SDLT) has been struck off.
The Solicitors Disciplinary Tribunal (SDT) heard that the seller’s solicitor told Aymer Jan Patrick Hutton she was “shocked” by his request to backdate completion to the final day of the 2021 SDLT holiday, describing it as “dishonest”.
The SDT said the extent of the dishonesty was “limited in duration and not preplanned” and Mr Hutton had been acting in “unusually difficult circumstances”.
However, had his actions been carried through, there would have been a “deceit” upon HMRC of around £6,000.
“The integrity of the conveyancing process is founded upon the network of obligations which exist between the profession and others.
“There must be unshakeable confidence that solicitors will record accurately and discharge a liability to the Revenue as an integral part of that process.”
The tribunal heard that on 30 June 2021, there was enough money in the bank account of Mr Hutton’s firm, conveyancing specialists Cunningtons, to complete the purchase.
Mr Hutton said he asked the firm’s account department, which was “overwhelmed with business”, to transfer the money, but “he had not personally checked that his instruction had been actioned”.
The sellers’ solicitors, Stratford upon Avon firm Robert Lunn & Lowth (RLL), issued a notice to complete and the money was not sent until the following day, when Mr Hutton asked for agreement to backdate the transaction, saying he wanted to “avoid a claim”.
He wrote in an email: “The whole point of enduring this madness was for our clients to benefit from the stamp duty holiday. Your clients have suffered no loss.”
In her response, RLL partner Lesley Siemonek said it was “wholly improper” for Mr Hutton to try and involve RLL “in any attempt to manipulate your clients’ stamp duty liability”.
She went on: “This not only goes against the basic rules and principles of the code of conduct, but is dishonest. We will not be complicit in that. Quite frankly, we are shocked you have made such a request.”
Mr Hutton admitted lack of integrity but denied dishonesty. He later told the Solicitors Regulation Authority that he had “tried to deal with the situation as a delayed completion and not an exercise in fraud”. The tribunal said he used the term “deemed completion” interchangeably with delayed completion.
However, finding he had acted dishonestly, the SDT said the absence of a contemporaneous reference to delayed or deemed completion did not support Mr Hutton’s account that this was in his contemplation at the relevant time.
He also “did not explain adequately or with the expected level of conviction why he believed such a doctrine or practice would apply” to permit the backdating.
In mitigation, his advocate argued that this was “an isolated, discrete and momentary lapse, lasting 30 minutes in which time he had engaged in one phone call and an e-mail”. It had taken place on the busiest working day Mr Hutton had ever experienced and should be measured against his 33 years of unblemished professional conduct.
The SDT accepted his remorse “to be sincere and genuine” but said there were not exceptional circumstances which would justify departing from the usual sanction in cases of dishonesty.
The solicitor was struck off and ordered to pay costs of £5,000.
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