Time to wind things up?

Rarely does a day go past without tax reform rearing its head in a daily financial news bulletin. In particular, continued talk of Capital Gains Tax (“CGT”) reform in the UK has been widespread and resounding for some time. In the wake of the unprecedented, but necessary, public spending throughout the pandemic, the Treasury will certainly need to find ways to reduce the deficit and rebalance the UK’s finances.

Some predicted that Chancellor Rishi Sunak might put in place CGT reforms in the Spring budget in March. He didn’t and neither was there any mention of it on so called ‘Tax Day’ (23 March).

Since then, President Biden has set out plans to nearly double capital gains tax for wealthy Americans, with tax rates set to soar from 20% to 39.6% for those earning more than $1m a year from investment income. With limited options for recouping the cost of the pandemic, perhaps the question now is “when?” and not “if?” the UK will follow in the footsteps of our American cousins. While CGT escaped the Spring Budget, potential changes could be only a few months away, in an expected Autumn Budget.

It is unlikely to be a controversial reform to the majority of the UK population, given that an increase in capital gains tax is only estimated to impact a small percentage of the population. Of course, there may be a flight risk in imposing significant tax increases on the wealthy, which could itself lead to reduced investment and lower tax revenues. But there is increasing worldwide public awareness and discourse over the unequal distribution of wealth, and the ever-widening gap between the rich and less well-off. This increasingly puts pressure on Government policy, and in turn on wealthy individuals. Take the G7 agreement on global corporation tax rates, for example, as evidence of a greater appetite for a cross-jurisdictional tax base.

Careful navigation through these difficult decisions in the months and years ahead is the order of the day for the Chancellor, and the UK’s owner manager community will be watching closely.

Potential changes to CGT

The Office for Tax Simplification’s (“OTS”) review of the CGT system carried out in July 2020 is a good place to start when considering the potential impact of reform. It found that the CGT system could be made simpler and fairer by:

1.      Aligning CGT rates more closely to income tax rates

2.      Reducing the CGT tax-free allowance

3.      Removing the ‘CGT uplift’ on inherited assets

4.      Reassessing existing CGT reliefs

The realignment of CGT rates to income tax is an obvious place to start. The removal of the distinction between assets and property, and an overall increase in rates is likely. There may be a gradual increase in rates to soften the initial blow, or a threshold above which higher rates of CGT kick in. It is also worthy of note that the OTS did also acknowledge that if aligning income and capital rates of tax, that there would also need to be some reduction in charge to allow for inflation, such as the old indexation allowance, or lower rates for assets held over longer periods.

There may also be a reduction of the existing CGT annual exemption of ￡12,300 down to a lower sum, potentially between ￡2,000 to ￡4,000. This could be accompanied by further exemptions on personal items for individuals, but that will be of no benefit to business owners. Again, there may be a gradual downward tapering of the exemption to make the pill easier to swallow.

The so-called CGT uplift on inherited assets may also potentially be a victim of the Chancellor. Currently, an individual that inherits an asset, for example a shareholding in a family business, who then goes on to sell it for a profit is subject to CGT based on the difference between the value of the asset when they inherited it and subsequently sold it, as opposed to the original price the deceased bought it for. This ‘CGT uplift’ can significantly reduce the amount of CGT to be paid. However, the removal of the uplift could make holding on to such an asset less attractive and give rise to alternative tax planning during the shareholders lifetime.

Business Asset Disposal Relief (the renamed Entrepreneurs’ Relief) has already seen the lifetime limit reduced from ￡10 million to ￡1 million in the 2020 Spring Budget. There could be further tweaks to qualifying criteria, the 10% rate could be increased, or more controversially the relief could be abolished altogether.

Although the measures remain uncertain, the direction of travel ahead for CGT reforms will undoubtedly erode some of the upsides of entrepreneurship.

And, in some scenarios, it may be that business owners looking to maximise value accelerate their exit plans now in anticipation of CGT reform.

So, is now the time to call it a day and wind things up?

The current CGT rules allow a tax efficient exit for business, although that window of opportunity is narrowing.

The exit of the business owner tends to happen through a trade sale, private equity investment, management buyout, or the (increasingly popular) Employee Ownership Trust (EOT).

However, another less complex mechanism for exiting a business and generating a capital receipt involving a distribution of capital, is via the Members’ Voluntary (solvent) Liquidation process. Being a distribution of capital, the proceeds will be taxed at current CGT rates and subject to eligibility, qualify for Business Asset Disposal Relief.

Whilst we will always recommend seeking HMRC clearance to confirm the business owner’s tax position, the basic tax position is that distributions made during a winding up are capital, not income, thus the shareholder is treated as having made a disposal of his or her shares in return for the amount distributed.

When applying for HMRC clearance, a business owner would be seeking confirmation that the Transactions in Securities Anti-Avoidance provisions would not apply to treat the proceeds of a winding up as subject to income tax. 

The Targeted Anti-Avoidance Rules (TAAR), which aims to combat cases of ‘Phoenixism’, would also need to be considered in relation to any distributions made in the process of winding up of a company.

For completeness, ‘Phoenixism’ is the practice whereby a company is liquidated and subsequently its business is carried on under the same or broadly the same ownership via a new entity within a prescribed timeframe. These rules were introduced in 2016 and, if applicable, will tax any proceeds received via a liquidation distribution as an income and not a capital receipt. Obviously, this is not an issue if the purpose of entering into a Members’ Voluntary (solvent) Liquidation process is due to the owner calling it a day!

In summary, the Members’ Voluntary (solvent) Liquidation process should not be overlooked as an effective means to triggering a capital receipt and we fully expect to experience an increase in enquiries from business owners and their advisors as the race to exit and extract value from their businesses intensifies in the months ahead with the shadow of CGT reform looming large once more.

Our Transaction Tax team’s experience in working with shareholders to maximise their returns tax effectively, cost effectively and expediently puts us in pole position to help you and your clients implement their business exit. As ever, early consultation is recommended to ensure that desired timelines are achieved.