investment or trading company?
Discussion
In the past, an accountant friend mentioned that my company may be regarded by hmrc as an "investment company", as opposed to a trading company.
They said this because I hold two rental properties on my balance sheet and they total about 40% on the net shareholders balance sheet value.
Is this correct?
Whilst they represent 40% of the balance sheet, they are used as security to provide funding (overdraft and loan accounts) for my trading activities - so in practice, the amount of money used in my trading activities is roughly equal to 100% of my overall balance sheet.
The gross rental income equates to approx 1/5 overall gross profit.
Thoughts..........
They said this because I hold two rental properties on my balance sheet and they total about 40% on the net shareholders balance sheet value.
Is this correct?
Whilst they represent 40% of the balance sheet, they are used as security to provide funding (overdraft and loan accounts) for my trading activities - so in practice, the amount of money used in my trading activities is roughly equal to 100% of my overall balance sheet.
The gross rental income equates to approx 1/5 overall gross profit.
Thoughts..........
there were some changes in 2004 that changed the definitions (as HMRC apply them) that I think would make it less relevant in the case you describe
what detrimental impact are you worried about if the business was classed as an "investment company" instead of a trading company?
You can find out more by starting here http://www.hmrc.gov.uk/manuals/ctmanual/CTM08040.h...
what detrimental impact are you worried about if the business was classed as an "investment company" instead of a trading company?
You can find out more by starting here http://www.hmrc.gov.uk/manuals/ctmanual/CTM08040.h...
It doesn't matter what it's registered as. It has to be a trading company for you to qualify for ER. Trading is not defined in tax law for these purposes, but HMRC look to 3 areas:
Gross assets,
Income,
Time spent by management on the various activities of the company.
They consider a company to be trading if it's trading activities in respect of the 3 tests are 80% or more. In practice, they accept that if 2 of the 3 tests pass the 80% threshold, a company will be trading.
The properties are likely to be non trading assets - assuming they are not used in the trade? And given their size, I assume the company fails the asset test.
I imagine the company passes the management time test as you'd spend relatively little time on the property side of the business.
So it all comes down to the gross income. How much is earned on the properties, versus the trade?
Bear in mind, because trading is not defined in statute, it is not black and white.
Gross assets,
Income,
Time spent by management on the various activities of the company.
They consider a company to be trading if it's trading activities in respect of the 3 tests are 80% or more. In practice, they accept that if 2 of the 3 tests pass the 80% threshold, a company will be trading.
The properties are likely to be non trading assets - assuming they are not used in the trade? And given their size, I assume the company fails the asset test.
I imagine the company passes the management time test as you'd spend relatively little time on the property side of the business.
So it all comes down to the gross income. How much is earned on the properties, versus the trade?
Bear in mind, because trading is not defined in statute, it is not black and white.
as Alpine says, it is one of those areas that isn't defined in black & white
I would be inclined to seek an opinion from hmrc - maybe not on my specific case, but on a business that fails the asset test and is borderline on the income guidance (20%)
and/or trade more and/or get ready to offer a short term rent reduction(!)
I would be inclined to seek an opinion from hmrc - maybe not on my specific case, but on a business that fails the asset test and is borderline on the income guidance (20%)
and/or trade more and/or get ready to offer a short term rent reduction(!)
Yes you can get a clearance, or at least try. HMRC tend to only clear points of uncertainty in law, not on facts and circumstances.
Also, it's gross income you should be testing, not gross profit. So by the sounds of it, that leg should be fine.
I know the rent reduction was tongue in cheek, but I think the test is based on the last 12 months priors prior to sale.
Also, it's gross income you should be testing, not gross profit. So by the sounds of it, that leg should be fine.
I know the rent reduction was tongue in cheek, but I think the test is based on the last 12 months priors prior to sale.
Thanks for the comments.
I think on 20% of gross income, I should pass this. Although I added the second property seven months ago and haven't worked out the figures.
Is the 12months prior criteria a snap-shot? Would you have to document it, like a year-end?
Also, if the business were to be closed instead of sold, how do they treat the properties? I presume I would cease trading, wait for creditors and debtors to unwind, leaving cash in the bank, but how do the properties transfer out?
I think on 20% of gross income, I should pass this. Although I added the second property seven months ago and haven't worked out the figures.
Is the 12months prior criteria a snap-shot? Would you have to document it, like a year-end?
Also, if the business were to be closed instead of sold, how do they treat the properties? I presume I would cease trading, wait for creditors and debtors to unwind, leaving cash in the bank, but how do the properties transfer out?
And this, my friend, is the REAL problem with owning properties through investment companies.
When the property is sold or transferred out of the company to the directors/shareholders(or to a third party), the COMPANY will be exposed to a Capital Gains Tax charge. If CGT is due, the company will pay it at its appropriate Corporation Tax rate.
If the property has been sold to third parties, there will now be a large cash pot sitting in the company bank account, which the directors/shareholders will want to extract for themselves.
Getting that cash out without suffering too much tax is the problem.
If the company is a trading company, then there is the possibility of the directors/shareholders extracting the money as a capital distribution and be able to avail of Entrepeneurial Relief (subject to jumping through all sorts of hoops).
If the company is an Investment Company, then ER won't be available and the individuals will pay normal CGT on any capital distribution.
So, as you can see, the disposal of the property can give rise to two CGT charges - one payable by the company and another payable by the individuals.
When the property is sold or transferred out of the company to the directors/shareholders(or to a third party), the COMPANY will be exposed to a Capital Gains Tax charge. If CGT is due, the company will pay it at its appropriate Corporation Tax rate.
If the property has been sold to third parties, there will now be a large cash pot sitting in the company bank account, which the directors/shareholders will want to extract for themselves.
Getting that cash out without suffering too much tax is the problem.
If the company is a trading company, then there is the possibility of the directors/shareholders extracting the money as a capital distribution and be able to avail of Entrepeneurial Relief (subject to jumping through all sorts of hoops).
If the company is an Investment Company, then ER won't be available and the individuals will pay normal CGT on any capital distribution.
So, as you can see, the disposal of the property can give rise to two CGT charges - one payable by the company and another payable by the individuals.
I think there is likely to be little capital gain on the actual properties - max 100k.
My issue is more about whether I can use ER on the rest of the balance sheet - that is the main issue. If I were to sell the properties, it wouldn't leave a glut of cash, as I am currently using overdrafts secured against them in the course of my trading.
I would be happy to pay corp tax on any capital gain and the 10% capital gain on the transfer into my name @ 10%, so my only query is whether or not I can get this approved in advance of actually selling / ceasing to trade.
To complicate matters more, I hold a 50% share in a family business that also has a property on the balance sheet - this time used as a residence for one director and the office. This was bought 30-odd years ago, so a fair CGT liability. Whilst the property probably represents a higher proportion of the overall asset value than in my business, it takes no management time and earns no income, so hopefully that company will be a trading company?!
My issue is more about whether I can use ER on the rest of the balance sheet - that is the main issue. If I were to sell the properties, it wouldn't leave a glut of cash, as I am currently using overdrafts secured against them in the course of my trading.
I would be happy to pay corp tax on any capital gain and the 10% capital gain on the transfer into my name @ 10%, so my only query is whether or not I can get this approved in advance of actually selling / ceasing to trade.
To complicate matters more, I hold a 50% share in a family business that also has a property on the balance sheet - this time used as a residence for one director and the office. This was bought 30-odd years ago, so a fair CGT liability. Whilst the property probably represents a higher proportion of the overall asset value than in my business, it takes no management time and earns no income, so hopefully that company will be a trading company?!
if they were sold, they would likely just cover the overdrafts etc., the overall BS value would be the same. The business is cash-intensive, so it never has much +ve in the bank, and it always owed. The only day that's likely to change is when trading ceases and the debtors / creditors unwind
Alpinestars said:
ER is tested for the 12 months immediately before cessation of a trade. Cash levels post the sale are not relevant.
Cash levels post the property sale ARE important in relation to any business sale. I'm not sure what you're suggesting above. I am suggesting that if the two sales are separated by 12 months, there will be no ER issue on the business sale given there is no surplus cash.MaxFromage said:
Cash levels post the property sale ARE important in relation to any business sale. I'm not sure what you're suggesting above. I am suggesting that if the two sales are separated by 12 months, there will be no ER issue on the business sale given there is no surplus cash.
Sorry you've lost me. What am I missing?What the OP has described is that the company sells the trade, and is left with cash and property.
ER is available on the sale of shares of the company. In order to qualify in the OP's circumstances, the company has to be trading for the whole of the 12 months prior to it disposing of its trade, AND broadly the OP has to dispose of the shares of the company (I assume by way of a liquidation followed by distribution) withing 36 months of the company ceasing to be a trading company.
The trading conditions have to be met BEFORE the company ceases to trade, and it's irrelevant what assets it has after it ceases to trade. Your suggestion of separating the disposals by 12 months achieves nothing. The ER test will still apply to the 12 months prior to the disposal of the trade.
To the OP, you do need detailed advice on this, as you could carry out the transaction in a few ways, each of which has differing tax outcomes for you and the company.
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