Trustees – the art of consultation and minor changes to existing rules

The definition of a personal company for Entrepreneurs' Relief (ER) purposes has been amended to require the entrepreneur to have a 5% interest in both the distributable profits and the net assets of the company.

ER applies on a disposal of shares in a company where the company is the ‘personal company’ of the individual making the disposal.

Previously, a personal company was defined as one in which the shareholder:

• is an office holder, director or employee of the company or group company; and

• holds at least 5% of the ordinary share capital and of the voting rights of the company.

The shareholder will now also need to hold a 5% interest in the distributable profits and the net assets of the company for the relief to be available on the gain.

Our comment

"ER is a valuable relief reducing the CGT rate from 20% to 10% on qualifying disposals. There were concerns in the run-up to the Budget that there would be restrictions to the availability of ER and some pressure groups had been calling for the relief to be abolished entirely. In this context, the commitment to maintaining the relief and the acknowledgement of its value in supporting the role that entrepreneurs play in the economy is heartening, albeit at the cost of a tightening of the rules. There was a perception that the relief was being accessed by those with voting rights that were disproportionate to their economic interest in the company. It is likely that this was only in limited situations and so the impact of this change is unlikely to be substantial. If the shares were acquired through exercise of an EMI option, they qualified as shares in a personal company even if the 5% interests were not met. It does not appear that this definition of personal company has been impacted by the above changes."

When will it apply?

This change will apply to disposals on or after 29 October 2018.

The minimum period throughout which certain qualifying conditions must be met for an individual to be able to claim Entrepreneurs' Relief (ER) is to be extended from 12 to 24 months.  Measures will be included to protect entrepreneurs whose businesses have already ceased by preserving the one year qualifying period for such businesses where cessation was before 29 October 2018. 

ER is only available on the disposal of shares in a company where the company is the entrepreneur’s personal company. The personal company conditions previously had to be met for a period of 12 months prior to the sale of the business. A business also currently has to be owned for at least 12 months before sale. These qualifying periods will now be extended to 24 months.

ER can also be claimed where a business has ceased to trade, provided that the qualifying conditions were met during the period prior to cessation and that the disposal takes place within 3 years of the company ceasing to trade. A specific protection will be included to apply the 12-month holding to businesses that ceased (or personal companies that ceased trading) prior to 29 October 2018, to avoid retrospectively penalising entrepreneurs who are in the process of winding up a company.

Our comment

"This is a further tightening of the ER rules, which will limit the availability of the relief for some entrepreneurs.

Although the protection for those whose businesses have already ceased is welcome, this does not extend to those currently negotiating the sale of their business. Where such businesses have new shareholders, it will be necessary to complete these transactions before 6 April 2019 to ensure those shareholders don't lose entitlement to this valuable relief.

We would recommend that all entrepreneurs review their position to consider the availability of ER in the event of a short-term sale and whether or not any planning steps need to be taken now in anticipation of a sale in the medium to long-term."

When will it apply?

This change will apply to disposals made on or after 6 April 2019.

An individual whose shareholding is diluted below the 5% qualifying threshold due to an issue of new shares will still be able to obtain Entrepreneurs' Relief (ER) on gains made up to the time of the dilution. 

ER is only available on a sale of shares where an individual disposes of their ‘personal company’. One of the definitions of personal company is one where the individual owns 5% of the ordinary share capital, voting rights and (after today’s announcement) has a 5% interest in both the distributable profits and net assets.

Previously, entrepreneurs whose holdings fell below the 5% qualifying level because new shares were issued as part of a commercial fund raise lost the benefit of ER on their remaining shares.

The new rules will allow the entrepreneur to capture the ER on the growth in value of their shares up to the point of dilution. The relaxation will only be available where the dilution to the shareholding results from the issue of new shares to raise funds for genuine commercial reasons. This excludes, for example, the conversion of debt to equity or the exercise of employee share options.

Broadly, the entrepreneur elects to dispose of and then immediately reacquire the shares at their market value immediately prior to the dilution. ER is then available on the gain arising on this deemed disposal. Also, the entrepreneur can elect for the notional gain to be deferred until the shares are actually sold or otherwise disposed.

The time limit for making these elections will be 12 months after the 31 January following the end of the tax year in which the dilution occurs.

Our comment

"The concern around the rules as they stand is that they risk the entrepreneur choosing either to cease their involvement in the business or to avoid dilution by not undertaking the necessary fund raise. As such, the changes are vital to ensure the entrepreneur community remains involved with businesses as they look to scale up.

The tight deadline for the elections, being based on the dilution event not the sale, means that entrepreneurs will need to be switched on in making the appropriate claims. Also, the fact that the elections are irrevocable means that they should consider detailed advice to ensure that the elections are appropriate."

When will it apply?

This will apply for shares held at the time of fundraising events that take place on or after 6 April 2019.

Finance Bill 2018-19 will introduce a requirement for UK resident taxpayers to make a payment on account of capital gains tax (CGT) following a residential property disposal.  New legislation will also replace the existing rules for reporting and payment of tax that apply to non-UK resident taxpayers. Budget 2018 has announced some tweaks to draft legislation published in July 2018.

Currently, CGT is typically due for payment by the 31 January following the end of the tax year in which a chargeable capital gain is realised. Non-residents, however, must report disposals of UK residential property via a non-resident CGT return and in many cases pay any tax due within 30 days of completion.

Under the new legislation, the draft proposals for which were published in July 2018, all taxpayers who are subject to CGT must file a tax return and make a payment on account of the tax within 30 days of completion. The payment on account will be self-assessed and will take into consideration unused losses and the person’s annual exempt amount.

UK residents will not need to file a return or make a payment if:

• the gain on the disposal is not chargeable to CGT; or
• it arises from the disposal of a foreign residential property in a country covered by a CGT double taxation agreement; or
• it is foreign property and the gain arises to a person taxed on the remittance basis.

Following further consultation, Budget 2018 has announced the following changes to the legislation:

• a reasonable estimate of valuations will be allowed where these are not available before the reporting deadline;
• sales of non-UK properties by UK residents will be exempt from the rules; and
• non-UK resident companies will be exempt from the reporting requirement.

Our comment

"It is hoped that HMRC fully publicise the new rules so that taxpayers are sufficiently aware of their reporting requirements.

Allowing the use of a reasonable estimate of a valuation appears to be a sensible amendment to the existing draft legislation. Taxpayers may have otherwise experienced difficulties in complying with the required 30 day deadline to report their capital gains.

It is assumed that non-UK resident companies will be exempt from the reporting requirements because gains made by non-UK resident companies will be subject to corporation tax from 6 April 2019."

When will it apply?

These changes will broadly apply from 6 April 2019 for non-UK residents (with a minor change applying from 6 April 2020) and from 6 April 2020 for UK residents.

Changes are expected to reduce the final period exemption from the current 18 months to 9 months and to restrict the availability of lettings relief.

A consultation has been announced into private residence relief (PRR) for CGT. The consultation is limited to the final period exemption and lettings relief.

PRR reduces the chargeable gain that accrues on an individual’s only or main home. The relief applies during the period of ownership that the property was the main residence plus a final period exemption, even if the property is not the main residence for the owner at that time. This final period is currently 18 months but is expected to be restricted to 9 months. A longer period of 36 months exists for disabled persons and those in care homes, and this is not expected to change.

Lettings relief provides a further relief to cover a period of letting at the lowest of the following:

• the PRR available;
• the gain accruing during the let period; and
• £40,000.

As such, lettings relief is only ever available on the let of a former home and the maximum tax relief is £11,200 at current CGT rates. The relief is expected to be restricted so that it only applies where the owner of the property is in ‘shared-occupancy’ with a tenant.

Our comment:

Both of these changes reflect the Government’s discouragement of landlords through taxation as a means of opening up the UK housing market. These new proposed changes to the CGT relief demonstrate this further by discouraging homeowners from retaining a property as they move up the housing ladder.

The final period was 36 months prior to April 2014, which shows a real reduction in the relief over this relatively short period. While this clearly fits in with the prevailing attitude to landlords, the timing is perhaps somewhat surprising given the slowdown in the UK housing market. Many homeowners are not retaining their properties deliberately but rather because they are unable to find a buyer. It will be interesting to see if the UK housing market's performance over the next couple of years influences the final decision on the grace period at all or if, in fact, the proposals impact the housing market directly with sellers reducing prices to ensure a sale prior to the change.

Arguably, lettings relief has always been somewhat generous given no equivalent exists for pure buy-to-let properties. The intention of the relief was, however, to encourage home-owners to make use of the property through letting if they were unable to sell immediately. Again, given the current housing market, we may see more vacant housing stock. Homeowners will not want to enter into a 12 month rental agreement knowing that after 9 months they risk exposure to CGT. They will instead simply keep the empty property on the market.

The statement around ‘shared-occupancy’ would appear to be somewhat unnecessary as someone with a lodger in their home should not suffer a restriction to their PRR, making the availability of lettings relief superfluous in these circumstances. We await the consultation document to ascertain the specifics of the proposed reform for some clarity as to why this statement was thought necessary.

When will it apply?

Following a period of consultation, the change will apply for disposals after April 2020.