Budget
2008:
The
changes in CGT announced, and which took effect April 2008, have changed the
position; the basic rate of CGT is
now 18%, although where the new Entrepreneur’s Relief is available and is in
fact claimed, the rate is reduced to 10%.
Proposed
‘income shifting’ rules have been delayed but should not be considered to have
gone away forever. It may remain
wise to take steps to get accumulated profits out of a company in a way that is
relatively tax-efficient, than to keep them in there and risk the goalposts
moving again.
It is generally accepted by professionals specialising in
this field that, other considerations permitting, it is wise for the Contractor
to change his/her company every few years, in order to help close the door on
risks of backwards investigations (particularly in relation to expenses &
IR35), and thus significantly help in ring-fencing today’s profits against the
risks of yesterday, and reducing the risks of personal claims by the IR against
the directors arising under PAYE.
Whilst at present s660A appears to raise less concerns
following the final disposal of the Arctic appeal in July 2007, it should not
be disregarded, and the goalposts may well move again with 'income shifting'
rules. Viewing the position overall, such a close-down and restart can
also often offer opportunity for restructuring in a more secure way.
Where there are accumulated profits in the company, a
greater need for the security of such ring-fencing may be felt, together with a
natural desire to extract those accumulated profits; there is also the
disincentive of the potential tax consequences of extraction. Extraction
of retained profits into a safer environment may be wise, whether or not
accompanied by a close down.
As we see it, there are generally the following options:
Option
1 extract as dividend
– tax bill for 25% of the extracted surplus (may equally be expressed as
32.5% of the grossed up dividend), assuming shareholder(s) already in higher
rate tax bracket – this approach may be taken to extract the profits,
whether or not the company is closed down.
Option
2 (closedown only) -
take advantage of ESC C16 (which, provided certain hoops are jumped through at
the appropriate times, can allow a distribution on dissolution to be treated as
a capital gain); annual exemptions are available, to the extent that they
are unused; Enterpreneur’s
Relief may be available (see notes below).
Where shares have been held for more than 1 complete year, and other applicable
conditions are satisfied, the applicable tax rate may be 10% and not the basic
CGT rate of 18%.
There may be other options - much depends on details which
change from situation to situation, and on the wishes and intentions of the
individual(s) concerned. For example, overseas connections / future
intentions can open up other avenues.
In general terms, where
the company is to be closed down, then (assuming full Entrepreneur’s
relief is available - which should not be taken for granted), then
it is generally wise to do so making use of ESC C16. The qualifying requirements and the procedure are both
relatively straightforward – but it does need to be approached in the right
way.
For more details, please mail us, and give the following initial information:
1
approximate amount of surplus in company?
2
How many shareholders does the company have?
3
In relation to each shareholder,
3a
what shareholding does that shareholder have?
3b
How long has the shareholder held the shares?
3d
has the shareholder made any previous claims for Entrepreneur’s Relief? If so, in respect of how much capital
gain (NB the gain, not the tax) in total?
4
Are any of the shareholders married to each other?
5
Has the company been active throughout the period since its formation? If
not please give details of all inactive period(s)?
6
What is the general nature of the company's business?
7
Is it intended that the business itself will be continued after the company is
closed down? If so, who will operate it on an ongoing basis?
We will respond promptly, and will give an indication of how
we may be able to help, and (if so) tell you what is required to take it a
stage further.
Advice on availability of Entrepreneur’s Relief is also available - mail
us, and please let us have the information as listed above.
Note
on Entrepreneur’s relief: The
effectiveness of the ESC C16 route depends on whether or not full
Entrepreneur’s relief is available.
Entrepreneur’s
relief is available on qualifying business disposals by individuals - in the
case of shares in an unlisted company, this requires the company to be a
‘trading company’. Where at least 5% of the issued shares in a company,
carrying at least 5% of the voting rights, have been held for more than one complete
year, and the individual has been an officer or employee of the company throughout
that period, then on the face of it Entrepreneur’s Relief is available. Whether or not a company is a ‘trading
company’ depends on rules similar to those which formerly applied for business
asset taper relief.
The
consensus amongst professionals appears to be that there is unlikely to be a
problem with the Revenue accepting that a company is a trading company where
The
further one steps outside those boundaries, the greater the risk that Entrepreneur’s
Relief may not be available; each case needs to be considered on its
merits. Time is also a consideration, where a company has in effect
ceased to trade – the longer one leaves it, the harder it may be to
justify a position that the company remains a ‘trading company; for these
purposes.
It
is NOT generally possible to apply in advance for Revenue clearance to plans on
this issue before committing oneself to implementing them.
If
you are an accountant reading this page and have any useful information from
your own experience on the point, I'd much appreciate you sharing the
information with me.
I'd really appreciate your feedback on this FAQ - so mail me and tell me what you think of it, if it's been useful to you, or let me know of any specific problem you have where I may be able to help.
This page was last updated on 29th July 2008
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