STEP response to the consultation on the tax rules governing distributions by a company, published 9 December 2015 STEP is the worldwide professional association for those advising families across generations. We help people understand the issues families face in this area and promote best practice, professional integrity and education to our members. Today we have over 20,000 members across 95 countries, with over 7,000 members in the UK. Our membership is drawn from a range of professions, including lawyers, accountants and other specialists. Our members help families plan for their futures: from drafting a will or advising family businesses, to helping international families and protecting vulnerable family members. We take a leading role in explaining our members views and expertise to governments, tax authorities, regulators and the public. We work with governments and regulatory authorities to examine the likely impact of any proposed changes, providing technical advice and support and responding to consultations. We welcome this opportunity to provide input into the consultation on the company distributions. tax rules governing General remarks The focus on company distributions being subject to capital gains tax rather than to income tax has arisen principally as a result of the increase in the tax rate on dividends. The effective rate of tax on a dividend has historically been lower than the headline rate of tax on other income in recognition of the fact that the profits which are being distributed have already been subject to tax within the company. Prior to the proposed changes to the dividend tax rates, the overall tax burden on profits distributed by way of dividend (assuming a 20% corporation tax rate) is 20% for basic rate taxpayers, 42.5% for higher rate taxpayers and 44.45% for additional rate taxpayers. In contrast, where profits are extracted in a capital gains tax form, the overall tax burden is 34.4% for basic rate taxpayers and 42.4% for both higher rate and additional rate taxpayers. The overall burden is of course less if entrepreneur s relief applies. Once the new dividend tax rates apply from April 2016, the overall tax burden when extracting profits by way of dividend (ignoring the 5,000 tax free allowance for individuals) will increase to 26% for a basic rate taxpayer, 46% for a higher rate taxpayer and 50.5% for an additional rate taxpayer. The purpose of going through these figures is to highlight two points:
1 from April 2016, it will be more expensive in tax terms for an individual to earn profits through a company than to earn them directly; and 2 even with the increased dividend tax rates, the saving for an additional rate tax taxpayer in realising capital gains rather than receiving dividends is only 8.1% and for a higher rate taxpayer is 3.6%. Whilst there is therefore some incentive to try to receive company distributions in a capital rather than an income form, the difference in tax rates is not so startling that it should be expected that this is something which would be aggressively pursued by taxpayers. The position is of course different where entrepreneur s relief applies and so the capital gains tax rate is only 10%. However, this is a special relief designed to encourage enterprise. If there is to be a targeted anti-avoidance rule relating to liquidations in circumstances where the business continues to be carried on by the taxpayer or by somebody associated with him, this should in our view be limited to situations where entrepreneur s relief would otherwise apply. Our starting point therefore is that the proposed changes are unnecessary and that the government s concerns about taxpayers wanting to convert income into capital are overstated, both in the context of the current rules and even taking into account the increase in dividend tax rates from April 2016. Sales of shares We agree that a sale of shares should in principle be subject to capital gains tax rather than income tax. Any abuse will be countered by the transactions in securities rules subject to the safe harbour in section 686 Income Tax Act 2007 where there is a fundamental change of ownership. We support the proposed changes to section 686 ITA 2007 which are designed to ensure that the change of ownership is genuine. Liquidation distributions In principle, we believe that a liquidation distribution should be subject to capital gains tax and not income tax. The reason for this is that the liquidation of the company is essentially a disposal of the asset rather than a distribution of profits (as the company is coming to an end) and there is no obvious reason why this should be treated differently from a sale of the shares in the company to a third party. We believe that the proposed targeted anti-avoidance rule runs the risk of affecting a shareholder s commercial decision as to how to realise value from his shareholding (by preferring a sale to a liquidation) and will also have unintended consequences, particularly in relation to investment companies.
Many individuals hold investments through companies. There are a number of reasons for this including limitation of liability and the ability to pass some economic value to their children whilst retaining control over the investment (by keeping a majority of the shares in the company) as well as lower corporate tax rates. Profits are often retained in the company and reinvested into the business. On the death of the parent, it would be normal for the controlling shareholding to pass to the children. Inheritance tax will be payable (assuming the parent s estate is above the inheritance tax nil rate band) and the shares will, in the hands of the children, have a base cost equal to their market value at the date of the parent s death. The children may well decide that the time has come to liquidate the company. This may be because they want to spend the money, because they want to split the investments between them or it may simply be that they are advised that if the company is liquidated shortly after the parent s death, there will be little or no tax to pay on the shares which they have inherited from their parent as it is only any increase in value since the parent s death which will be taxed. It may well be the case that one or more of the children will keep his or her share of the investments in a personal investment portfolio. In these circumstances, there is a significant risk that the new targeted anti-avoidance rule will apply as: 1 the shareholder has received a distribution on the liquidation of a close company; 2 the children continue to be involved in a similar activity (they have their own investment portfolio); and 3 they may be said to have as one of the main purposes obtaining a tax advantage given that they know that there will be little tax to pay if the company is liquidated shortly after their parent s death. In principle, however, this does not seem objectionable. The reason why there is not very much capital gains tax to pay (if any at all) is because the parent has died and inheritance tax has been paid. Looking at examples in paragraph 3.10 of the consultation paper, this does not seem to be the sort of situation which the government has in mind in proposing the targeted anti-avoidance rule and the amendments to the transactions in securities rules. We would also question whether some of the other examples of behaviour which may result in capital gains tax rather than income tax being paid lead to unfair outcomes. We agree that what is described as Phoenixism is clearly tax motivated and is designed only to extract profits from a business which the shareholder intends to continue in a new company and that
the extraction of those profits should be subject to income tax rather than capital gains tax. However, even in this case, it seems to us that this is only objectionable if the business continues to be carried on in corporate form. If the shareholder decides to liquidate the company and then to carry on the business in his own name, it is harder to see why the profits on the liquidation should be subject to income tax rather than capital gains tax as there will have been a genuine change in the business structure with the result that future profits will be subject to income tax rather than corporation tax. For similar reasons, we do not consider that money boxing (retaining profits in a company and only taking them out as part of a liquidation process) or using special purpose companies (having separate companies for separate projects and liquidating the company when the profit is completed) should be the sort of activity which is targeted by the proposed changes. Looking first at money boxing, keeping excess profits in a company clearly has real commercial consequences. Most obviously, the shareholder does not have access to the cash and cannot use it for other purposes. The cash is also exposed to business risk (e.g. creditors of the company). Looking at tax, keeping cash in the company may have implications, for example, in relation to the availability of the substantial shareholdings exemption or inheritance tax business property relief. Bearing all of this in mind, and also taking into account the relatively limited difference in tax rates when considering a dividend compared to a liquidation as outlined above, we believe that if a shareholder decides to leave money in a company and accepts the commercial and tax consequences of doing so, there is no reason why he should be required to pay income tax as opposed to capital gains tax when the company is eventually liquidated. It is not fair to compare such an individual with a shareholder who decides to take money out immediately and therefore has it available for their own personal use straightaway. It is quite understandable that a shareholder may be prepared to pay a slightly higher rate of tax in order to have immediate access to the funds. Essentially, the shareholder has a choice take cash straightaway and pay a bit more tax or leave it in the company and pay a lower rate of tax at some point in the future. As far as special purpose companies are concerned, there does not seem to be any good reason for distinguishing between somebody who is carrying on a single project in a single company and somebody who is carrying on five separate projects through five separate companies. The effect of the targeted anti-avoidance rule is that the first taxpayer can liquidate his company and get his profits at capital gains tax rates whereas the second taxpayer will be subject to income tax on the liquidation of each of the companies except for the last one (which itself is anomalous). In order to deal with the issues we have highlighted, we would suggest amending Condition B of the targeted anti-avoidance rule so that it only applies if the individual or a person connected with him is a participator in a company which is carrying on what is in substance the same business as the company which has been liquidated. This would have the following consequences:
1 It will not apply if there is a genuine liquidation and the shareholder does not set up a new company to carry on the same business (even if he decides personally to carry on the business); 2 the targeted anti-avoidance rule will not apply just because the shareholder has an interest in another company which is carrying on a similar sort of business but which is not carrying on the business which the company that is being liquidated was previously carrying on. As well as ensuring that the targeted anti-avoidance rule does not apply in these circumstances, it would of course also be important to ensure that the transactions in securities rules are not applied to these sorts of situations. This is addressed further below. Proposed changes to the transactions in securities rules Liquidations We do not fully understand the reasons for treating a liquidation as a transaction in securities as well as having the targeted anti-avoidance rule. The effect of this appears to be that a liquidation which is not caught by the targeted anti-avoidance rule could still be vulnerable and under the revised transactions in securities rules. For the reasons described above, our view is that the starting point should be that a liquidation gives rise to a charge to capital gains tax not income tax and that the only exceptions to this should be clearly defined situations covered by the targeted anti-avoidance rule rather than a general provision such as the transactions in securities rules. This is particularly the case given that a liquidation as opposed to a dividend would always give rise to a tax advantage as defined and, as a result, it will undoubtedly be difficult to persuade HMRC that obtaining the tax advantage was not one of the main purposes of the liquidation. It is generally accepted that a liquidation is not (under the current legislation) a transaction in securities within section 684(2) Income Tax Act 2007 (and this is presumably the reason why it is proposed to insert new sub-section 684(2)(f)). Our view is that straightforward liquidations should be dealt with by the targeted anti-avoidance rule and not by the transactions in securities rules. The effect of including a liquidation in the definition of transactions in securities is that, even a straightforward liquidation will fall squarely within the transactions in securities provisions unless HMRC can be persuaded that obtaining a tax advantage was not one of the main purposes of the liquidation. Given that a liquidation by definition produces a tax advantage (as defined), this puts innocent taxpayers in a very uncomfortable position. Our suggestion therefore is that liquidations should not be added to the list of transactions in securities. This should not matter in the case of more sophisticated arrangements where there are likely to be other transactions which fall within the definition of transactions in securities as well as any liquidation which may be involved. Other cases would be caught by the targeted anti-avoidance rule.
Associates We are concerned about the proposal to amend section 687(2) ITA 2007 so that the limit on liability is calculated not only by reference to the maximum amount which could have been paid to the taxpayer by way of a qualifying distribution, but also to include amounts which could have been paid to any associate by way of a qualifying distribution. This will have unintended (and unfair) consequences where shares are held by a family member/family trusts from which the taxpayer cannot and does not benefit. By way of example, assume a company is owned by mother, father, their two adult children and a trust for the benefit of their minor child. Each shareholder owns 20% of the shares in the company. The group has distributable reserves of 100,000. The company makes a distribution of 500,000 which would not otherwise be subject to income tax but which is caught by the transactions in securities rules. Each shareholder receives 100,000. In principle, the maximum on which all five shareholders should together be subject to income tax is 100,000 (equal to the distributable reserves) as that is the maximum dividend which the company could have paid. Each shareholder should not have to pay income tax on more than 20,000. However, the effect of the change to section 687(2) is that each shareholder will be subject to income tax on the full 100,000 received by that shareholder so that income tax is paid on 500,000 even though the company could only have paid a dividend of 100,000. It is difficult to know how best to deal with this problem other than to leave section 687(2) ITA 2007 as it currently stands. One possible alternative might be not to include the associate provisions but to test the taxpayer s ability to receive a qualifying distribution not only at the time when Condition A or Condition B is satisfied, but also at the time when the transaction or transactions in securities referred to in Condition A or Condition B take place (or immediately before those transactions take place). This would mean that, if the transaction in securities involved the taxpayer disposing of shares so that he no longer owned them when the relevant consideration was received, he could still be subject to income tax on the relevant consideration by reference to the amount of the qualifying distribution which he could have received when he still owned the shares. In the example outlined above, this would mean that each of the five shareholders would be subject to income tax on 20,000 which is of course the right result. This change would also deal with a situation where, for example, a taxpayer gave shares to the trustees of a trust of which he is a beneficiary and received relevant consideration in the form of a trust distribution. He would not be able to argue that no liability arises as a result of the fact that, when the relevant consideration is received, he could not have received a qualifying distribution as he would have been in a position to receive a qualifying distribution immediately before the transaction in securities takes place.
However, even with this approach, there would be additional complexity as it would be necessary to include some provision to avoid a double tax charge one for the trustees and one for the settlor who receives the distribution given that both of them may have received relevant consideration. Drafting points The changes to section 684(b) ITA 2007 (which applies the transactions in securities rules where any person obtains a tax advantage and not just the person who is the party to the transaction in securities) and to section 687(2) (which defines the tax advantage by reference to the amount which the person who is the party to the transaction in securities or any associate could have received by way of a qualifying distribution) throw up some quite tricky consequential drafting points which have not been followed through: 1 Section 687(1) explains when the person obtains an income tax advantage. Now that an income tax advantage obtained by any person is relevant, this should refer to a person rather than the person. 2 In order to obtain a tax advantage, the person in question must receive relevant consideration. This requires a reference back to section 685 ITA 2007. Section 685 again refers to the person receiving relevant consideration. Does this mean the person who is the party to the transaction in securities or the person who obtains the tax advantage (assuming they are different)? Presumably it should mean the person who obtains the tax advantage otherwise section 687 does not make sense. However, the clear inference from the drafting of section 685 is that the person who is a party to the transaction in securities must receive relevant consideration which would make sense otherwise the person on whom the tax charge is imposed could have a tax liability without having any funds with which to pay the tax. In order to resolve this, it may be necessary to provide in section 685 that both the person who is the party to the transaction in securities and the person who obtains the tax advantage must receive relevant consideration. Wider view It will be apparent from what we have said that, in our view, the proposals do in some respects go too far. We do not therefore think that a wider review of the conversion of income to capital or the distribution regime in general is necessary. Submitted by STEP UK Technical Committee 2 February 2016