“Following the decision of the Supreme Court in Project Blue in June 2018, the guidance contained in pages SDLTM09050 to SDLTM09275 on S75A is currently under review.
We will update the guidance at the earliest opportunity, meanwhile if you are unclear about whether S75A might apply please contact the SDLT Technical team (helen.cormack [at] hmrc.gov.uk) for further advice about how to proceed.”
We have been in contact with HMRC to clarify the statement; HMRC have agreed the following:
The declaration that the Project Blue judgment has not yet been taken into account means that unwary readers of HMRC guidance have a warning that the current version cannot be taken to represent HMRC’s view in all respects. We have pointed out to HMRC that other developing case law such as Hannover Leasing Wachstumswerte Europa Beteiligungsgesellschaft MbH and another v HMRC  UKFTT 0262 (TC) is also relevant.
HMRC’s invitation to contact the SDLT technical team for advice on section 75A is a welcome departure from their previous line that they will not comment on the application of anti-avoidance provisions to particular scenarios. We understand that any such approach for advice should, however, be accompanied by a full analysis of the facts together with a clear and explicit description of where the area of uncertainty lies – for example, where there is uncertainty as to who should be regarded as V and P, where clarification is required as to whether a particular transaction is “involved in connection with a disposal and acquisition”, or where an opinion is sought as to whether any particular transaction may be regarded as incidental to the transfer of the chargeable interest.