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Retained profits could be questioned on company disposals as tax rules change

By RJP LLP on 27 May, 2016

Following a recent consultation, there are new rules in place which have an impact on the way company shareholders can and should extract funds from their companies in the future. It is an important issue to be aware of, because shareholders typically prefer to extract company funds as capital rather than income if possible, to enable them to take advantage of lower tax rates. However, the lack of real clarification from HMRC over their exact expectations means this has become rather a grey area.

How has this situation arisen?

New anti-avoidance legislation brought in from 6th April 2016 has created a lot of uncertainty for shareholders, who may be considering how to extract funds and whether to retain profits within the company. It is not possible to extract funds as capital when HMRC consider that dividends could be taken instead, and this has always been the case. But now, the circumstances in which HMRC consider that dividends could be taken instead have broadened.

The motivation for making these changes seems to have been triggered by the increase in the rates of income tax payable on dividends (and the subsequent reduction in the rates of capital gains tax), both of which became effective on 6th April 2016, and which HMRC consider will increase the incentive for company owners to seek ways to extract capital rather than dividends from their companies. HMRC is particularly concerned about the retention of profits within a company for a period of time until they can be paid out in the form of capital, rather than being paid out in the form of dividends as they are earned, where they are not needed by the company.

 

Why is it important to retain profits?

There are multiple reasons why shareholders and directors of a company would wish to retain profits and the argument as to whether a company ‘needs’ to retain its profits is subjective. Whilst excess funds may be retained to be taken out at a later date at a lower rate of tax, there are many other reasons why companies retain profits. These can include concerns over market trends or customer payment terms, the unreliability of bank funds, or the possibility of making business acquisitions that may or may not come to fruition.

 

Impact of profit retention during a disposal

Having retained funds over a period of time, for whatever reason, a company may then enter into a trade sale or members’ voluntary liquidation. Where a company has significant cash funds at such a time, this new legislation will entitle HMRC to take the view that the shareholders have retained excess profits within the company with a view to extracting them as capital at the time of the sale or liquidation, rather than taking dividends as the profits were earned. The resulting conclusion therefore being that the main objective of this strategy was to gain a tax advantage. Shareholders and directors should be aware of this and fully document the commercial reasons for the retention of funds, over the period they are retained. This will demonstrate, at whatever point in the future, that the funds were not retained purely to create a tax advantage. It is also possible to approach HMRC in advance of a transaction to request clearance that the anti avoidance legislation will not apply, but from recent experience real clarification about this matter is difficult to obtain.

 

What are the new rules concerning funds extraction?

In HMRC’s recent consultation paper, the following practices were mentioned as being unacceptable for the purpose of extracting funds from companies as capital:

  1. Phoenixism’ – this is where a company enters into a members’ voluntary liquidation, but one or all of the shareholders move on to continue very similar activities in another trading vehicle; and
  1. Use of ‘Special Purpose Companies’ - where business operations or projects are divided amongst separate companies and as each project comes to an end, the relevant company is liquidated.

Two other similar scenarios are also questioned:

  • Company sales where the purchaser includes the purchase of accrued profits in the purchase price for the shares; and
  • The creation of new capital in a reconstruction which does not require shareholders to invest new capital, and which is subsequently the subject of a repayment of share capital.

 

Can company owners overcome these restrictions?

The situation surrounding ‘Phoenixism’ is relatively clear; the new rules tax distributions received by individuals in some circumstances to income tax rather than capital gains tax.

They will apply if the following three conditions are all met:

  1. Condition A – the company is (or was recently) a ‘close company’ i.e. controlled by 5 or fewer shareholders or its directors. Many privately owned companies are close companies;
  1. Condition B – within two years after the date of the distribution, the individual receiving the distribution (or someone connected with him or her) is involved in carrying on any trade or other activity previously carried on by the company (or any similar trade or activity). This can involve trading either as a company, partnership, LLP or sole trader; and
  1. Condition C – it is reasonable in all the circumstances to assume that one of the main purposes of the liquidation is the avoidance of income tax. (If Condition B is met this will be a relevant circumstance).

These conditions will typically catch property developers who enter into a project and liquidate the company on completion of that project. Even where they enter into subsequent projects with different people, they can still fall within this legislation. Although not explicit, it appears that each shareholder can be considered on their own merits.

The situation is less clear in other instances, and until the legislation has been in existence for longer and we have a better idea of HMRC’s approach, companies will need to be meticulous in documenting their commercial reasons for retaining funds which on the face of it appear to be surplus to requirements.

If you have concerns about the amount of retained profits in your company or want more advice on these new rules, please contact Lesley Stalker by emailing las@rjp.co.uk.

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