Buying an insolvent business from an administrator

There have been several predictions that the number of business failures will increase in early 2010. History indicates that insolvencies rise as the economy comes out of a recession, and that Q1 is frequently the time when owners run out of cash.

There are therefore likely to be more financially distressed businesses being sold by administrators – offering a great opportunity for those with cash. Not all distressed businesses are basket cases – some can be well managed and profitable. One bad debt, legal dispute, missed payment or change in terms can push a company into cash flow difficulties which could lead to formal insolvency procedures.

Buying from an administrator must be undertaken very quickly. The assets are usually sold at substantial discounts to normal valuations, which reflects the risks and lack of warranties/indemnities.

Mercer & Hole have several experienced insolvency practitioners. This provides us with a big advantage when it comes to negotiating with an administrator.

We receive a number of distressed acquisition opportunities every week, if anyone would like to hear of such businesses, please email me to register an interest.

I will cover the key issues to be aware of in buying from an administrator in another post.

Julian Dobbin is a partner at Mercer & Hole. The views given in this blog are personal to the author.

The Small Business Research Initiative (SBRI) scheme - a source of funding for businesses

The Small Business Research Initiative is a scheme which aims to use government procurement to drive innovation. Government procurement accounts for a sizable proportion of GDP, and the rationale is that technology projects can be supported through the stages of feasibility and prototyping which are typically hard to fund.  The NHS and MOD have been particularly active with the SBRI scheme, but the Highways Agency and the Department for Communities are among a number of others to get involved.

The scheme allows early stage high-tech companies to develop and demonstrate technology, supported by a customer, and to enter the field of government procurement. There are two phases – the first involves preliminary Research & Development (R&D) which will contribute to the scientific, technical and commercial feasibility of a project. The second phase is to fund a prototype, the logic being that this will then be manufactured and purchased by the relevant government department. The intellectual property rights will be held by the company (if rights of usage are granted to the funding authority).

There appear to be no size limits on companies that can submit applications to the scheme, but it is likely that SME businesses will be favoured. 

Click here for a list of the current applications.

The SBRI appears to have several successes since its inception earlier this year, and I hope that central government continues to support it. For those involved in R&D, it is also worth remembering the R&D tax credits that may be available (which can create a significant reduction in tax payments).

Julian Dobbin is a partner at Mercer & Hole. The views given in this blog are personal to the author.

We will be blogging on

SME Plus Blog and Tax Plus Blog on Pre-Budget Report day.  If you do not already subscribe to our blogs click here for SME Plus Blog or here for Tax Plus Blog to ensure you get our comment and analysis as and when it happens. 

 

Using the EFG scheme to buy a business

My previous blogs on the Enterprise Finance Guarantee (EFG) scheme created significant interest. The EFG has been a very emotive subject for the UK public, with many people feeling that the level of lending is insufficient. Much of the public anger is aimed towards the ‘bailed out’ banks (presumably because the tax payer feels they are a ‘part owner’).

I believe the initial publicity of the scheme led to unfair expectations being placed on the banks. Some individuals appeared to think that the EFG represented free money for businesses. However I can not defend the lengthy credit application process seen at certain banks, which can lead to unfulfilled orders, aborted transactions and in extreme cases business failure.

Despite the unfavourable public opinion, the intention of the EFG is very honourable. Not everybody is aware that EFG loans can be used to acquire businesses – whether this involves a share acquisition or a purchase of trade & assets. The criteria applied by banks is simple – it is consistent with their normal commercial terms (i.e. the existence of a government guarantee does not mean that sensible lending criteria are discarded).

Not all lenders are willing to use the EFG to acquire existing businesses. Please let me know if you would like details of those that currently do offer this facility.

Julian Dobbin is a partner at Mercer & Hole. The views given in this blog are personal to the author, if you would like to discuss the contents of this post with Julian you can call him on 01908 605552.  

Pre-Budget Report 2009 - Chancellor's statement announced for Wednesday 9 December 2009

Chancellor Alistair Darling has confirmed that he will make his Pre-Budget Report statement on Wednesday 9 December 2009. We will be providing full analysis of Pre-Budget Report announcements on the day.

We will be blogging on SME Plus Blog and Tax Plus Blog on Pre-Budget Report day.  If you do not already subscribe to our blogs click here for SME Plus Blog or here for Tax Plus Blog to ensure you get our comment and analysis as and when it happens.

Cathy Corns is a partner at Mercer & Hole. If you would like to discuss the contents of this post with Cathy you can call her on 01908 605552.

Successful completion of the sale of Pioneer Productions - a sign of more activity in the market

A number of commentators and advisers involved in corporate finance/M&A are starting to point to an increase in corporate transaction volumes. 

I am very pleased to announce that a longstanding Mercer & Hole client – Pioneer Productions – was sold to the Welsh television production company Tinopolis. It is the one of the few ‘significant’ successfully completed deals that I have been involved in 2009. As with any transaction of this size there are many obstacles along the way, but in 2009 it takes additional motivation and perseverance to get over the finishing line.

The tentative recovery in the SME transactions market is a reflection of several factors:

  • confidence has steadily improved throughout 2009, helped by buoyant stock markets, avoidance of a ‘banking armageddon’ and fewer bad news stories
  • a gradual reduction in the disparity between buyer expectations (who were after rock bottom prices) and seller expectations (who were still thinking of 2007 multiples)
  • some improvements in liquidity in the small to medium business sector
  • necessity – companies which are approaching failure can be forced to sell all or part of their business.

So it seems likely that 2010 will bring a rise in the transaction volumes seen in 2009.

Julian Dobbin is a partner at Mercer & Hole. The views given in this blog are personal to the author, if you would like to discuss the contents of this blog with Julian you can call him on 01908 605552.

Business Angel investments - due diligence, successes and failures

The recent NESTA* report on Angel Investing makes fascinating reading. 

The report gives some great insights into the successes and failures of Business Angel investors, and whilst it naturally focuses on ‘early stage’ deals, the principles can be applied to investments and acquisitions at various points of the business cycle.

It is well worth reading the report, but there are some interesting findings I would like to point out now :

  • "Those who perform at least some due diligence, even just 20 hours, experienced fewer failed investments”… ”Even a relatively small amount of due diligence helps avoid failure”.

Where an investor spent over 20 hours on Due Diligence, approximately 17% of those investments yielded a return of over 10 times the initial outlay. This compares favourably to those who spent less than 20 hours on Due Diligence - only 5% achieved that return.

This confirms that relying on a ‘gut feel’ alone, is simply another form of gambling!

  • “Those who invested in opportunities where they have specific industry expertise failed significantly less”. The investor is around twice as likely to achieve a yield of over 10x the initial investment with industry expertise.

This also suggests that existing SME owners can produce strong returns by investing in or acquiring businesses in a similar field.

  • The average Internal Rate of Return is 22% in the Business Angel sector, which compares very favourably with current returns across other asset classes. It is a sector that is very beneficial for the economy, and I recommend that successful entrepreneurs seriously consider looking at this market.

Whist the risks are high, the historic returns seem worthwhile. It also appears to be an enjoyable way to invest.

I think anyone investing in or buying a business should read the NESTA report.

Julian Dobbin is a partner at Mercer & Hole. The views given in this blog are personal to the author.

* NESTA is the National Endowment for Science, Technology and the Arts

Capital redemption reserves - purchase of own shares out of capital

One area of accounting that regularly causes much procrastination and soul searching amongst our profession was the accounting treatment of a purchase of own shares out of capital under the 1985 Companies Act.

I am not surprised to report that the 2006 Companies Act does not exactly clear this matter up. The new act includes over 20 pages of narrative on the matter. 

The guidance has not changed particularly, and the accounting treatment is given in section 734. In very simple terms:

If the permissible capital payment is less than the nominal amount of the shares, the difference must be transferred to the company’s capital redemption reserve.

If the permissible capital payment is greater than the nominal value:

(a) the amount of any capital redemption reserve, share premium account or fully paid share capital of the company, and

(b) any amount representing unrealised profits of the company for the time being standing to the credit of any revaluation reserve maintained by the company,

may be reduced by a sum not exceeding (or by sums not in total exceeding) the amount by which the permissible capital payment exceeds the nominal amount of the shares.

Gary Farnes is a partner at Mercer & Hole. The views given in this blog are personal to the author.

VAT - bad debt relief

In these difficult economic times, it is easy to forget that good housekeeping can improve VAT cash flow. If debtors are increasing and cash flow is an issue, it is easy to overlook the bad debt relief which is available.

If you have debtors of more than six months old, you can adjust the VAT already paid to HMRC, subject to certain conditions.

The main conditions are:

  • The VAT has been paid to HMRC
  • The debt has been written off in the accounts (eg refund for VAT bad debts account which can be outside of the main accounts)
  • The debt is more than six months old (later of time of supply and due date for payment).

Claims are made by including the VAT on the outstanding amount in the VAT return for the period when entitlement arises. The VAT is adjusted by including it in Box 4 of the return.

In the event that the debt is subsequently paid by the customer, the VAT claimed under these rules, will have to be repaid to HMRC.

Claims must be made within four years (from 1 April 2009) and six months from the later of:

  • Date of the supply; and
  • The date the amount became due and payable.

But you should not forget that if you have unpaid supplier invoices which are more than six months old (excluding any time allowed for payment), you are required to repay the VAT claimed on your VAT return. You adjust for this by entering a negative figure in Box 4 of the VAT return in the period in which the six month period has passed.

Another way to mitigate VAT debts is to consider whether you can use the Cash Accounting Scheme. Businesses with an annual turnover of less than £1.35 million and with a good VAT compliance history can use the scheme. Under the scheme, VAT is accounted for on a cash receipts basis rather than on an invoice basis. This provides automatic bad debt relief.

Comment on this blog in the space provided below, or visit my profile for details of how to contact me.

Jane Stacey is a VAT Manager at Mercer & Hole.

Bad debts - obtaining tax relief for businesses

In the current economic climate, late payers are commonplace. When late payers turn into bad debts, it can put huge financial stress on a business.  I have talked in previous blogs about how to spot potential bad debt, and how to manage debtors more effectively to free cashflow. 

If a debt does become unrecoverable, tax relief is obtained for bad debt when it is deducted against the trading profits of a business. A reduced profit produces a lower tax bill, and it is important that businesses are aware of the point at which bad debts can be recognised in their accounts.

There is no specific accounting standard covering bad debt. The treatment of bad debt provisions is covered by the ‘Statement of Principles for Financial Reporting’. A debtor should be recognised if it will yield 'economic benefit' ie an inflow of cash.  The following paragraph (4.14) is of relevance for bad debts:

This future economic benefit need not, however, be certain. Indeed, there is always some uncertainty whether expected future economic benefits will be obtained either to the extent expected or at all. In some cases, that uncertainty is so great that the asset is not recognised.

Taken from ‘Statement of Principles for Financial Reporting’, Accounting Standards Board

The key consideration when considering debtor recoverability is the financial/commercial position of the customer. If a customer is simply late with a payment, this does not necessarily mean the debt is not recoverable. If the customer is going through formal insolvency procedures – a CVA, bankruptcy or similar – then clearly a provision would be required (you would typically factor in the amount that the administrator expects to return to creditors – if any). Between a ‘late payer’ and an ‘insolvent customer’, there is a grey area where judgement is required. The customers circumstances – their level of debt, sector, management strength etc should all be considered, if available.

The accounting standard FRS21 ‘Events after the balance sheet date’ provides some guidance on the adjustments that can be made for bad debts that arise from information received after the year end. In simple terms, any new information which indicates that an asset was impaired at the balance sheet date is an adjusting event. For example, if a customer becomes bankrupt one month after the year end, then it seems likely that their financial circumstances were such that the debt was unlikely to be recoverable at the year end – and therefore a provision should be made in the accounts. Using a further example, if a customer loses its major contract three months after the year end, and subsequently enters an insolvency procedure without paying the ‘year end debtor’, then it could be argued that the asset was not impaired at the year end, and a provision should not be made in the year end balance sheet.

The recognition of bad debts can be subjective and should be discussed with your accountants/auditors.

Julian Dobbin is a partner at Mercer & Hole. The views given in this blog are personal to the author.

Bad debts for SME's - top tips on how strong management can reduce write offs

In my last blog entry, I talked about the ‘early warning’ signs for bad debts. In this blog I will provide some tips on how to manage debtors:

  • Devise and document a formal invoicing/credit control policy, which staff are trained to adhere to.
  • Issue invoices as soon as possible - customers are more likely to pay on time if invoices are raised promptly.
  • Send statements each month, identifying any overdue invoices. Please note that this can not be relied upon in isolation – a co-ordinated strategy is a necessity – perhaps involving calls, emails and even text messages. 
  • Begin the credit control review process early – not when the invoice reaches 60 days…
  • Make it simple for your customers to pay you – the invoices should include a date, your bank details, a clear payment deadline, your interest on overdue accounts policy and contact details. Both debit and credit cards should be accepted.
  • Monitor and chase unpaid debtor accounts weekly – a methodical approach is required, and this differs from business to business, and even customer to customer. You do not want to upset your customers, so start delicately and gradually increase pressure, always remaining polite. Involving different people in the collection process is an advantage – with each having a different relationship with the debtor. There are a wide variety of collection approaches / tactics that can be adopted – speak to an advisor if you feel you need guidance.
  • If the verbal approach seems like it will not work, put it in writing and consult a collection agency.
  • It is important to maintain regular two-way communication with your ‘at risk’ customers. You should aim to be first on the list when your debtor is planning their next payment run.

In our next blog, we will look at when a bad debt provision can be recognised and the tax relief claimed.

Julian Dobbin is a partner at Mercer & Hole. The views given in this blog are personal to the author.

Bad debts for SME's - recognise the early warning signs

The lack of available finance in the economy has meant that businesses are increasingly looking to their suppliers for credit. 

The result of this for many SME’s is a build of trade debtors (and a wide range of excuses given to their credit controller). With this backdrop, it is fundamental for SME businesses to recognise the early warning signs of debtor problems – for example:

  • industry rumours that the debtor is experiencing financial difficulties
  • debtor’s sector adversely affected by macro-economic trends (such as those experienced by retailers over the last year)
  • payment terms change/payments are missed
  • management at the debtor become elusive and do not return calls/other correspondence.

Late invoices should be flagged to senior management as soon as they become overdue. Unless it is an immaterial figure, the account should then be reviewed weekly – the likelihood of collecting an account reduces as each day passes.

In my next blog I will provide some ‘best practice’ guidance on how to manage slow paying accounts.

Julian Dobbin is a partner at Mercer & Hole. The views given in this blog are personal to the author.

Medium sized groups - consolidated accounts

Under the 1985 Companies Act, medium sized groups were exempt from preparing consolidated accounts. This exemption has been abolished in the 2006 Companies Act – effective for accounting periods beginning 6 April 2008.

This means that a time consuming consolidation process needs to be undertaken for a new tranche of companies, causing more accountants in the UK to experience the usual problems with goodwill calculations, intra-group trading, translation differences etc.

As a reminder, the size parameters for medium groups were changed to:

Net turnover - £6.5m to £25.9m
Gross turnover - £7.8m to £31.1m
Net balance sheet - £3.26m to £12.9m
Gross balance sheet - £3.9m to £15.5m

Any businesses which have subsidiaries should review this situation – it can be worth restructuring the group to avoid incurring the time and costs involved in the consolidation procedure.

Paul Maberly is a partner at Mercer & Hole – please click here for contact details.

Small company due diligence - are you considering expanding your business?

The SME businesses which feel that they will weather the ill effects of the recession, are beginning to consider long term strategies for growing their businesses. With struggling competitors, suppliers and even customers, growth by acquisition currently offers a serious prospect of rapid expansion at attractive valuations. 

A cost effective due diligence service can add value to almost any transaction. There is little point in an SME undertaking a ‘full-blown’ due diligence exercise - which for bigger deals will cover not only financials, but specific work on operations, staff, pensions, properties, legals and many other issues. However a limited scope due diligence should provide the buyer with comfort in making their decision, and also a sound basis upon which to negotiate the price or other key terms.  

In the current financial environment, there are many examples of poor due diligence (when the economy is booming, due diligence failures will be less apparent). Failing to spot problems prior to signing the deal can have a devastating effect on the ability of a business to service its debt and ultimately survive. Don’t find out too late… 

If you are considering acquiring a company, please do get in contact with Julian Dobbin to discuss the potential due diligence services that may be of value.

Business valuations in a recession

It is no secret that the number of corporate deals completing in 2009 is significantly less than previous years. There are many reasons for this (too many to list in this blog) – one important factor is the perception of vendors on the valuation attributable to their company. 

If an entrepreneur has spent 20 years creating a profitable business, it is natural that he or she will wait for the right time to sell. It instinctively feels like the wrong time to sell - valuations across all asset classes are low in comparison to those seen in recent years (though the markets are showing a small recovery as I write, they are still substantially lower than 2007 levels). The sale of shares in private companies are also generating lower valuations – though not as low as many people expect.

Valuations are always subjective and each valuer will probably treat the impact of the recession differently. From my perspective, the additional considerations for a valuation include:

  • earnings valuations – in my experience multiples have reduced by 1-2, and earnings forecasts must be revised to reflect the maintainable profits in the medium term (on average this will be a lower figure than would have been projected in previous years). Please note that three recently completed deals have seen multiples in the 4-5 range (pre-tax).
  • net asset valuations – an adjustment should be made to reflect diminishing stock values, and the valuation and recoverability of trade debtors should be considered in detail. Freehold values may have reduced since surveys undertaken even three months ago.
  • discounted cashflow – earnings levels should be considered in light of the economic down turn. For the discount factor – the cost of capital must reflect the long term outlook, assuming that today’s low interest rates will continue could create substantial overvaluations.

There are some genuine recession proof sectors – but even in these areas, valuations should be reviewed, as the reduced availability of finance can place additional risk on a business.

Julian Dobbin is a partner at Mercer & Hole. Please contact him directly to talk about multiples and valuations relevant to your business.

The views given in this blog are personal to the author.

Sources of finance for SMEs

The credit crunch has reduced the availability of traditional funding sources for all businesses.

The Government has attempted to counteract this by introducing the EFG scheme for SMEs, and also the working capital scheme (a 50% guarantee to lenders on their working capital loan portfolios) and the capital for enterprise fund – a quasi venture capital fund providing equity of £250,000 to £2m for SMEs.

There are also various regional bodies that provide support and funding for SMEs. I recently attended a seminar, hosted by the ICAEW and Finance South East (FSE). FSE, which is financed by the South East England Development Agency provide a suite of funding options aimed at SMEs, such as:

  • Grants – available for R&D, up to a maximum of £500,000, but typically much lower than this
  • Commercialisation loans – up to £60,000 for pre-revenue businesses with a clear USP, repayable on basis of future income 
  • Seed fund – venture capital fund which requires matching private investment, up to £250,000 of capital for ambitious, growing businesses
  • Accelerator loans – up to £100,000 to fund expansion for high growth potential businesses (not for working capital)

These funding sources can offer critical support for SMEs, and it is worth considering if your business could qualify.

10 top tips for SME acquisitions II

In my last posting I gave the first 5 tips, which covered the stage before an offer for a business had been made. My next tips pick up after the offer is accepted.

During Due Diligence :

This is the stage where you test the assumptions you made when you put together your offer.

6. Appoint a good accountant and lawyer. The potential long term costs of not taking appropriate advice should be considered very carefully!

7. Go back to your offer and the assumptions you made. Ensure the information provided by the vendor can be verified and corroborated by other data.

8. Consider the earnings figure you were presented with when you made your offer. Is it really sustainable? Will it be affected by exchange rate movements? Are contract terms due to change, will cost rises be matched by increases in revenue?

9. If you are acquiring shares, consider the potential for hidden liabilities. The most common are taxes – including corporation tax, VAT, PAYE, National Insurance etc. Also look at ongoing litigation, bonus arrangements, customer overpayments and any other matters appropriate to the business.

10. Spend a lot of time on your financial projections. Assess the impact of potential problems (reduced sales, lower margins etc) in a sensitivity analysis, paying particular attention to cashflow. Consider whether the budget complies with covenants set by the bank, and the amount of head room you have.

As I said in the last post, the priorities in an acquisition differ, dependent upon its nature – there are many other risks which should be considered in making an acquisition decision.

Jointly appointed expert witness - how do you get it right?

It is an old adage but a good one: valuing a private company is an ‘art and not a science’. Given the same set of figures, it is very possible that all 20 Mercer & Hole partners would provide a slightly different valuation. 

My tips for preparing a valuation, which should be accepted by both parties in a jointly appointed expert witness case, are: 

  • Use your experience of the SME market – It is no use trying to directly apply stock exchange multiples to private companies. Recent business sales in the local market should be used as a benchmark, to compare against discounted FTSE multiples.
  • Use sector knowledge – it is useful to talk to my partners that have particular sector expertise (for example in construction, logistics, retail etc). This way you can identify the trends, valuation bases, recent transactions and other pertinent matters that will affect your opinion.
  • Utilise the different disciplines within the practice – I often talk to my colleagues in our tax, transaction services and insolvency departments. Drawing on their experience adds a different dimension to the report.
  • Apply several different valuation bases – consider earnings, net asset, dividend, discounted cash flow and any other relevant methodologies. This way a balanced opinion is given.
  • Make the valuation understandable to others. It is good to avoid lengthy reports, but it is very helpful if both parties in the dispute can understand how the figures are arrived at. If one party feels the valuation is difficult to understand, it is more likely to lead to a prolonged and unnecessary dispute.

The production of an objective valuation which is accepted by both parties ‘first time round’ is our goal. This saves the time and money spent on protracted disputes over the valuation.

Comment on this blog in the space provided below, or visit my profile for details of how to contact me.

Enterprise Finance Guarantee (EFG) & Personal Guarantees

There is much confusion over the requirement for guarantees under the Enterprise Finance Guarantee (EFG) scheme.

The Bank must be satisfied that all available personal assets have been pledged, before lending under the EFG scheme. However it is at the banks discretion to determine whether:

  • Personal assets may be considered ‘available’ as security (see below)
  • The applicant is personally committed to the venture
  • The applicant is using the EFG solely to avoid pledging personal assets.
If personally owned assets that would be traditionally offered as security are jointly owned with a spouse/third party, who is not directly connected to the business a refusal by the third party to charge those assets should be sufficient to render these assets as ‘unavailable’ for conventional lending.
 
If the principal residence is not jointly owned, and the applicant refuses to offer this as security, then the EFG scheme can still be used at the discretion of the lender. In these cases, an unsupported personal guarantee would likely be sought. An existing loan may not be refinanced with a new EFG-backed loan for the purpose of releasing the security previously provided.

The EFG is new ground for all of us. Good luck, and please leave comments if you have any interesting observations on the application process.
 

10 top tips for SME acquisitions

The credit crunch is having an affect on all asset prices, and this is bringing some first time buyers/investors into the private SME market. With this in mind, I thought I would ‘blog’ some tips for SME acquisitions.

Prior to an offer being made :

  1. Buy the trade / assets, and not the shares. With a company you inherit its problems and therefore potential liabilities. There are also tax advantages to buying the trade and assets. This is particularly important for ‘distressed’ acquisitions.
  2. When reviewing profits for valuation purposes watch out for shareholders / directors remuneration. If the costs of their input to the business are not in the P&L, the valuation will be inflated.
  3. Consider other missing costs. This is particularly relevant where a seller has more than one business - is rent correctly allocated? Which company does the accountant charge? etc
  4. Customers. Reliance on a smaller number of large customers is a risk. The health of the customer base in the current economic climate is crucial. Ask the seller for outline details of clients – their size, sector etc and review the level of their own personal contact with customers. Consider what protection should be added into the offer – such as an ‘earn out’ for the seller.
  5. In your offer be careful to clarify the assumptions you have made, and the conditions attached. This will make it easier to renegotiate the price should issues be identified during Due Diligence.

I will cover the 2nd set of five tips in my next post.

Please note that the tips differ, dependent on the nature of the acquisition. I have been very general here and there are many other risks which should be considered in making an acquisition decision.

EFG - Enterprise Finance Guarantee

The government have now beefed up the Small Firms Loan Guarantee scheme. The EFG was set up to inject much needed liquidity into the SME sector, targeting viable / profitable businesses who have cash flow problems or are unable to fund growth. These problems have arisen from the scarcity of credit in the economy (triggered by changing attitudes to risk and availability of capital). The basic premise of the scheme is that the Government will guarantee lending to viable businesses (limited to 75% of the loan value – though under EU competition law it should only be 10%...that is another story!).

This scheme will support bank lending, of 3 months to 10 year maturity, to UK businesses with a turnover of up to £25 million who are not able to access the finance they need. It will provide loans of between £1,000 and £1 million and is currently available until March 2010.

The guarantee can support new loans, refinance existing debt, or conversions of existing overdrafts into loans to release capacity to meet working capital requirements.

It is a very flexible tool in comparison to the previous scheme – the parameters in size have been widened significantly, and an interesting new feature is the flexibility to use the EFG in 'share' transactions.

Only time will tell whether the EFG will be a success. The decisions to lend are delegated to the banks, who will apply their own criteria. However it appears to be a step in the right direction, and I for one hope that the EFG scheme will provide a lifeline for the many viable, but cashflow pressurised, SME’s in the UK.

See guidance from Business Link by clicking here.

Budget 2009

Shareholder Agreements

When forming a business most people do not go to the trouble of drawing up a formal shareholder agreement – many thinking that it is not necessary.

However, in circumstances where shares are held by different parties we would recommend that clients give this subject some careful thought and consider entering a formal shareholders’ agreement and taking appropriate life insurance – let me briefly explain why:

A shareholder agreement, in addition to covering various detailed statutory matters such as voting rights and the decision making process, can cover methods of financing used by the business, the obligations of director / shareholders and perhaps most importantly, provision for dispute resolution and exit strategies.

Let’s consider an example of a small family company managed by two married brothers who both work in the business, each having an equal shareholding with a good personal and business relationship and no business issues - circumstances under which many people would believe a shareholder agreement is not necessary.

In this example, if one of the brothers died, his shares would usually pass to his spouse, meaning that the surviving brother would have a 50% equity owner who had no involvement in the business and who might want to release their capital quickly – a recipe for potential conflict if the expectations of the parties involved differ.

In these circumstances, a shareholder agreement might stipulate a method of valuing the shares and include a “purchase” clause entitling / enforcing the surviving shareholder to buy the deceased shares using the proceeds of the life insurance. This would enable the widow to realise her investment and the surviving brother to secure control of the business.
 

Companies Act 2006 - Articles of Association

We have had several queries from clients who wish to benefit from some of the changes made under the Companies Act 2006 - a common one being the removal of the need to hold an Annual General Meeting.

The bad news is that unfortunately the majority of companies are still formed under the 1985 Companies and might not find this to be so simple in practice. This is largely because the Articles of Association of these companies refer to the 1985 'Table A' which sets out how the company should conduct itself.

In these cases the company will need to amend their Articles of Association to benefit from the changes introduced under the Companies Act 2006. This will entail either amending the current articles or adopting new articles of association, (which might be easier and probably cheaper.) These would need to be filed at Companies House with a written resolution. If you opted for new articles of association these would need to be drafted by your solicitor or specialised Company Secretary until the new 2006 model articles are available for adoption which is scheduled for October 2009.

Working from home

If you own a company and run it out of your home it can be tax efficient to charge the company a rent. However, this does need to be structured correctly to avoid jeopardising your capital gains tax (“CGT”) exemption.

If the company has exclusive use of any part of your home then that part ceases to be your “principal private residence” and some of the gain on the sale of the house could be chargeable to CGT. To avoid this outcome the agreement should make it clear that the company only has use of the space at certain times of the working week and that, for the rest of the time, the room is free for use by the whole family.
 

Pre-Budget Report 2008

The Chancellor delivered his Pre-Budget Report on 24th November 2008. Our Partners and Managers posted a number of blogs in relation to the 2008 Budget announcement – on both SME Plus blog and Tax Plus blog.

For concise, up-to-date and easy to digest Pre-Budget information please find below a list of the respective blogs posted: 

SME Plus 

Pre-Budget Report 2008 - VAT

Pre-Budget Report 2008 - Plant and machinery leasing

Pre-Budget Report 2008 - Income tax...relief for trading losses

Pre-Budget Report 2008 - Tax relief for business expenditure on cars

Pre-Budget Report 2008 - Corporation tax...small companies rate

Pre-Budget Report 2008 - Corporation tax...tax relief for trading losses

Pre-Budget Report 2008 - Empty property relief

Pre-Budget Report 2008 - Taxation of foreign profits

Pre-Budget Report 2008 - HMRC Business Payment Support

Tax Plus 

Pre-Budget Report 2008 - Non doms update

Pre-Budget Report 2008 - Income Shifting Rules...the dog that didn't bark!

Pre-Budget Report 2008 - Top rate of income tax to be increased to 45%

Pre-Budget Report 2008 - National Insurance to be increased

Pre-Budget Report 2008 - Consultation documents

Pre-Budget Report 2008 - VAT

Pre-Budget Report 2008 - Compensation for the loss of 10% band made permanent

Pre-Budget Report 2008 - Tax rate for trusts to be increased

Pre-Budget Report 2008 - Pension tax telief...freeze on limits

Pre-Budget Report 2008 - Changes to trusts...trust Darling!

Pre-Budget Report 2008 - Penalties for late tax returns

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Capital allowances: the new rules

The good news is that for expenditure incurred on or after 1 April 2008, for companies, and 6 April 2008 for sole traders, partnerships and some landlords, plant and machinery allowances are extended to cover expenditure on the addition of thermal insulation to all existing buildings used for trading purposes or let as commercial property.

Residential property businesses may instead qualify for the £1,500 per dwelling-house, landlord’s energy saving allowance to cover cavity wall, loft, solid wall, hot water system, draft proofing and floor insulation.

The allowance on insulation is restricted to the 10% rate but it is better than nothing.
 

New advisory fuel rates for company cars

New advisory fuel rates for company cars will apply to all journeys made on or after 1 June 2008:

Engine Size

Petrol

Diesel

LPG

1400cc or less

12p

13p

7p

1401cc to 2000cc

15p

13p

9p

Over 2000cc

21p

17p

13p

HMRC say:  “The recent fuel price increases which justify these AFR changes have happened very rapidly …  Consequently, where employers are able to do so, HMRC is content for the new rates to be implemented immediate, i.e. from 1 June.”

Energy saving allowance - corporate landlords

The Government’s proposal to extend the Landlord’s Energy Saving Allowance to corporate landlords has recently been given formal State Aid approval by the European Commission.

The scheme provides incentives for landlords to improve the energy efficiency of their properties. From 8 July 2008 corporate landlords will be able to claim up to £1,500 a year per property against the cost of purchasing and installing energy-saving items such as floor insulation and draught proofing.

HMRC relax VAT correction regime

For periods commencing on or after 1 July 2008 HMRC have increased the threshold under which a business can make good errors or mistakes it has previously made when preparing its VAT returns.

Prior to this period any “errors” totalling over £2,000 had to be reported to the VAT man under the “voluntary disclosure" rules. Going forward this has been raised to a minimum of £10,000 with even higher thresholds for businesses with turnover of £1,000,000 who can correct themselves “errors” of up to 1% of turnover up to a limit of £50,000.

I see this as a welcome relaxation of the rules which will help to cut red tape for many businesses.

But beware, as there is no longer “disclosure” when an adjustment is made, then the adjustment will not meet the definition of a “disclosure” for the new penalty regime and hence penalties could still become due.

Home Working

Just to confirm that the amount payable tax free to employees working from home, without the need to keep receipts, had risen from £2 to £3 from 6 April 2008.

Revenue PAYE Inspections

The Revenue have recently issued a number of documents regarding their procedures and rights on PAYE inspections, together with some details on their obligations, what you can do, etc. You can find full details at www.hmrc.gov.uk/leaflets/c6.htm.

Directors' overdrawn loan accounts

Loan accounts are increasingly being looked at by HMRC with a view to collecting national insurance contributions (NIC).

Often a director operates his loan account such that regular amounts are debited to the accounts to meet his mortgage, school fees or other living expenses; the amount overdrawn is subsequently cleared by voting a bonus to bring the account back into balance. In HMRC’s view in this situation the director is receiving an advance of his remuneration and so there is a payment of earnings.
HMRC’s view is that NIC liabilities for company directors arise at the earlier of payment or entitlement. This should not increase the NIC due but requires the payment to HMRC to be made earlier.

There are also occasions where a director operates a loan account but on the understanding that he will clear the overdrawn amount by either introducing some of his own income or he will give up or repay a dividend. These overdrawn amounts are not in anticipation of future remuneration and NIC liabilities will only arise if the amount overdrawn is not cleared in full and the balance is written off. Such written off amounts attract liability.

Remember also to Class 1A NIC liability which will arise on the benefit of the loan.

Are family businesses a high risk for HMRC?

HMRC has stated that businesses that can demonstrate good management and accounting systems will be viewed as low risk, giving them more time to spend on higher risk businesses.

Family businesses are often regarded by HMRC as a higher risk because of the overlap between business and family.

So what can you do to reduce the risk of an investigation?

  1. Loans to family members constitute a taxable benefit (and can create a charge on the company) and should be declared. 
  2. Expenses that are not wholly and exclusively for the purposes of the business need to be clearly identified and the tax treatment clarified. 
  3. Entertaining expenditure (other than staff) is not allowable. 
  4. Salaries paid to family must be wholly and exclusively for business purposes. 
  5. Benefits provided for family members must be declared. 
  6. Tax planning is high on HMRC’s agenda and aggressive planning is likely to cause an enquiry. Careful implementation and documentation is crucial. 
  7. Acquisition and sale of business assets should be properly recorded. 
  8. Ownership of assets such as yachts and aircraft often cause problems when these are used by family members. 
  9. Overseas companies which are part of the group, with UK-based decision makers, are likely to face a company residence challenge from HMRC.

HMRC is carrying out a full review of tax systems and processes for companies which it considers to be high risk; especially where there is a history of mis-declaration. Some time spent now to tidy things up could save a lot of problems later.

Entrepreneurs relief - a possible glitch

Under the draft legislation there appears to be a problem for shareholders in companies or groups participating in joint ventures. Activity carried on with a view to acquiring an interest of 10% or more in a joint venture company is trading activity under the legislation but actually holding shares in a joint venture company appears not to be. This means that a company or group can fail the trading tests if the shareholding in the joint venture is substantial in relation to the overall activity.

If this were to be the case, entrepreneurs relief would not be available.

Dividends or Bonus? - revisited

This is a perennial question – should I take additional income from my private company in the form of a bonus or a dividend? From 1 April 2008 the answer to this question may have changed for some people.

Prior to 1 April 2008 it was preferable to declare a dividend if the company was paying tax at the small company rate or at the full rate of corporation tax. If profits fell into the marginal rate band then a bonus was more cost effective. On 1 April the marginal rate fell to 29.75% and so, from a tax perspective alone, dividends will now be preferred regardless of the level of company profits. There may of course be other factors to consider, such as pension contributions and minimum wage legislation but, provided these are factored in, paying dividends is likely to give a lower overall tax bill.

Companies with accounting periods straddling 1 April will have to calculate their own marginal tax rate for that period but, as a general rule of thumb, if the rate is 30% or lower then dividends will be the answer.

Self-Employed - The tax implications of working from home

For most self-employed people there is usually some use of their home for business purposes. You are then entitled to a tax deduction for the proportion of household expenditure relevant to the business use.

The Revenue has recently issued guidance to “clarify” the calculation of deductions. This suggests that the costs should be apportioned on the bases of:

  • area of the total property used in the business;
  • usage;
  • time the area is used for business use as opposed to any other use.

However, where this will not work the Revenue should accept claims made on any reasonable basis.

So how do you apportion home costs?

The Revenue gives several examples of the approach it recommends.

Mortgage interest: The interest may be split where there is a substantial use of part of the property for business purposes.

Insurance: An apportionment of the total premium calculated for usage and area, etc.
Repairs and maintenance: General household repairs are allowable in line with the proportion of business use.

Telecoms/internet broadband, etc: The Revenue’s previous view was that line rental was not allowable. This has now changed, and a proportion of rental and calls is allowed on a reasonable basis; this should be supported by itemised bills.

The guidance includes a number of specific examples, which can be found by clicking here.

One thing to remember is that an individual’s main residence is exempt from capital gains tax on disposal provided it has been used as the main residence throughout ownership. Provided that no room is used exclusively for business purposes, there should be no restriction on the availability of the main residence exemption from CGT.

Increases to National Minimum Wage

The Government has recently announced the annual increase to the National Minimum Wage to apply from 1 October 2008:

The proposed increases to the current rates are as follows: 

     CURRENT     PROPOSED
ADULT       £5.52         £5.73
18-21 year olds       £4.60         £4.77
16-17 year olds       £3.40         £3.53

Entrepreneurs' Relief - Share Sales

In order for an employee or director of a company to benefit from the new Entrepreneurs’ Relief after 5 April 2008, he or she must have held more than 5% of the company’s ordinary shares for at least twelve months. But it will not be necessary to have held all of the shares being sold throughout the period, as one of the Revenue’s FAQs makes clear:

Q - I already hold over 10% of the shares in the company. If I acquire another 4% of the shares and sell the whole 14% 6 months later, can I get entrepreneur’s relief on the whole 14%, or only on the 10% I held for the whole of the one year qualifying period?
A - Relief will be available in respect of the whole 14% holding if the qualifying conditions are met. The requirement is that a 5% stake is held throughout the qualifying period. The particular shares or securities disposed of do not have to be held throughout that period.

www.hmrc.gov.uk/cgt/entre-faqs.htm

Budget 2008 - Overview

Budget 2008 - Corporation tax simplification...

…but don’t hold your breath; the proposals, when formulated, will only apply to companies with less than 10 employees and turnover under £750,000. This may not be quite what most SMEs were hoping for.

Entrepreneurs' Relief - Qualifying Corporate Bonds

There has been a great deal of concern, since Alistair Darling’s announcement that taper relief would be abolished from 6 April 2008, that people holding loan notes after selling their business would face an 18% tax rate, rather than the 10% they had expected at the time they sold the business.

The Revenue have just released draft legislation on the proposed Entrepreneurs’ Relief, together with answers to a number of frequently asked questions. Within the latter, they have confirmed that, if the original disposal would have met the conditions for Entrepreneurs’ Relief (e.g. 5% ordinary shareholding, carrying 5% of the votes, owned by a director or employee, or a business interest held for at least one year prior to the sale), the encashment of the loan notes will do, too.

This applies only if the loan notes are “Qualifying Corporate Bonds” (which most are) but will be a welcome relief to many former business owners.

If you would like to discuss whether you might be affected, please contact Cathy Corns or me.

Entrepreneurs' Relief - Non-Qualifying Corporate Bonds

Anyone who has exchanged shares for non-qualifying corporate bonds (or non-QCBs, for short) needs to review their position carefully – before 5 April 2008.

Unless, in addition to the non-QCBs, they meet the criteria for the new Entrepreneurs’ Relief (e.g. they have been employed by the company that issued the loan notes and have owned at least 5% of the company’s ordinary shares throughout the twelve months prior to encashing the loan notes) they will face an 18% capital gains tax bill, rather than the 10% they might have expected when exchanging their shares.

It may be possible to benefit from the lower rate – but only by acting well in advance of the change.
If you think you might be affected by this and would like to discuss what you can do to keep your tax bill down, please contact Cathy Corns or me.

Entrepreneurs' Relief - Loan Notes

Anyone thinking of exchanging shares in their trading company from loan notes in another company after 5 April 2008, will need to be very careful about which type of loan note they accept.

The rules are involved and every circumstance will differ.

If you would like to know more, please get in touch with Cathy Corns or me.

Entrepreneurs' Relief - Share Exchanges

Someone “selling” their company by taking shares in the acquiring company may be in for a nasty surprise after 5 April 2008.

The new Entrepreneurs’ Relief, which comes into effect on 6 April, will reduce the capital gains tax due on selling shares from 18% to 10% only if the vendor:

  • worked for the company; and 
  • owned at least 5% of the ordinary shares in that company, carrying at least 5% of the votes, throughout the twelve months leading up to the sale.

Our experience is that these two criteria are often not met, either because the vendor does not work for the new company or because he holds less than 5% of its ordinary shares.

If you are likely to be affected by the new rules (including situations where the exchange has already happened) and would like to discuss what might be done to improve your position, please contact Cathy Corns or me.

Entrepreneurs' Relief - Lifetime Limit

The Revenue have confirmed that the £1 million “lifetime limit” for capital gains qualifying for the new Entrepreneurs’ Relief will apply only to gains made after 5 April 2008.

Official confirmation to anyone born in April 1968 that life really does begin at forty.

Entrepreneurs' Relief - Asset Sales

The new Entrepreneurs’ Relief, which comes into play from 6 April 2008, will (subject to certain criteria) reduce the capital gains tax due when shares in trading companies – or business interests – are sold.

It will not, however, be available where business assets are sold in isolation, rather than as part of the disposal of a business. This would include, for example, the sale of land owned and used by a farmer, unless the sale could be argued to be of a distinct business.

This is likely to be an area of debate with the Revenue and, in many cases, might only be settled by the Courts.

If you would like to discuss how this might affect you – and whether there is anything you can do to avoid this hike in the tax likely to be due – please contact Cathy Corns or me.

Unfairness for all?

In his quieter and more introspective moments, Alistair Darling must wonder if he has the Midas touch in reverse; and if he doesn’t, many others are probably doing it for him.

Fresh from the Revenue’s “clarification” of his proposals for non-doms, which effectively reversed much of what he and they had said previously, the Chancellor now faces criticism from business leaders that his new plans favour non-doms over British-born entrepreneurs.

Under the new proposals, non-doms will be able to elect for a “deemed sale” of their British and overseas assets at 6 April 2008, meaning that they will pay UK capital gains tax only on the growth in value from that date.

In contrast, UK-born entrepreneurs have no such option and will not only lose the benefit of indexation allowance for assets held between 1982 and 1998, but also see the standard rate of capital gains tax on some assets rise by 80%.

We are aware of one example where the post-5 April 2008 tax bill will be nearly four times the liability before, and are sure this will be repeated many times over, sometimes with even more extreme results.

The Chancellor and Revenue are, we understand, adamant that their current proposals will not alter, and in many cases there is, frankly, little that can be done to improve matters.

That does not mean you should not try.

Please contact Cathy Corns or me if you would like to discuss this in more detail.


Some entrepreneurs benefit, but not their employees!

As you are only too well aware by now, the Chancellor announced a major reform of the capital gains tax (CGT) regime by setting a single flat rate of 18% from April 2008. Following a major outcry, the new entrepreneurs’ relief has been announced; this relief will reduce gains liable to CGT by 4/9ths, resulting in an effective rate of 10% on gains of up to £1m on disposals of a business by an individual.

But while business owners may be relieved by the introduction of a 10% rate of CGT on the first £1m of gain, their employees are likely to be far less happy as holdings of less than 5% will not qualify for relief.

The Government have encouraged companies to reward and motivate employees with shares but now exclude such employees from the new entrepreneurs’ relief.

There must be some logic – my problem is I just can’t see it!

Capital Allowances - the new Annual Investment Allowance

The Government has recently published its response to consultations on changes to the way in which relief will be given for expenditure on plant and machinery.

This is just a brief reminder of the anomalies in 2008 of the new ‘annual investment allowance’ (AIA). This will be introduced in April to provide for a 100% allowance on the first £50,000 of expenditure on plant and machinery (other than cars) and replace the existing first-year allowances for small and medium-sized enterprises.

Continue Reading...

Solvent Liquidations - Tax Planning and other issues

A members' voluntary liquidation ("MVL") can be a tax efficient exit option for the shareholders of a solvent company.

Under current legislation shareholders receiving a distribution through an MVL or, where appropriate, using Extra Statutory Concession C16, may benefit from the business asset taper relief provisions.

The government has recently announced (http://www.hmrc.gov.uk/cgt/disposal.htm) that as from 6 April 2008 all capital gains will be taxed at a flat rate of 18% irrespective of the marginal income tax rate of the taxpayer concerned; and also that the current systems of taper relief and of indexation allowance will be abolished. Alongside these reforms the government will introduce a tax relief for many entrepreneurs that will deliver a 10% tax rate for up to the first £1 million of lifetime capital gains.

Continue Reading...

Capital Gain Tax - Non business assets

Last week, the Chancellor announced details of his so called “Entrepreneurs’ Relief”, the replacement for taper relief, for business owners facing an increase of more than 80% from 6 April 2008.

It would be easy, given all the hype surrounding this new relief, to forget the position for people holding assets that would never have qualified as “business assets” and the 10% capital gains tax rate. By this, I mean assets such as shares in investment companies, residential “buy to let” properties and others not used in trading businesses.

In some respects, their position is more complicated, as the reduction in capital gains tax rates will be offset by the abolition of indexation allowance (the effect of inflation before 1998) and the decision as to the best time to sell may not be so obvious. It is certainly not as simple as saying that the headline rate falls to 18% so matters are automatically better after the changes come into force.

You may think it is now too late to sell before 6 April 2008 – but this is not necessarily the question that needs to be answered.

If you would like to discuss how the new rules might affect you and what you might be able to do to ameliorate any negative effects, please contact Cathy Corns or me.

Capital Gains Tax planning point - ends 5 April 2008

HMRC has recently confirmed one very important point on assets that have been owned for a number of years. Such assets will have accrued a substantial amount of indexation relief (over 100% to date on assets held on 31 March 1982). Where an individual owns such assets on 5 April 2008 the indexation relief is irretrievably lost.

However HMRC have now confirmed (http://www.hmrc.gov.uk/cgt/faqs-cgt-reform.htm) that where an asset is transferred to a spouse or civil partner on a no-gain no-loss transfer the indexation relief is captured as part of the new owner’s base cost for tax purposes. This is an important planning possibility.

Regrettably though life in tax is never 100% straightforward – if the original owner would qualify for the new entrepreneurs relief and the new owner would not then the value of the historic indexation has to be compared with the value of the new relief before any transfer is made.

Capital Gains Tax - Commercial property

The Chancellor’s announcement of the new “Entrepreneurs’ Relief” from 6 April 2008 appears to herald a marked change in the tax position of owners of commercial property.

Though the details have yet to be formalised, it seems that unless the property is let to the owner’s business – or to a company in which the owner has at least a 5% shareholding – the minimum tax rate on selling that property will increase to 18%.

Since 2000, anyone owning a commercial property used by an unquoted trading company would qualify for the higher rate of taper relief and could potentially pay only 10% capital gains tax on selling the property after two years.

It seems unlikely that this change will create a false market in such property before 6 April 2008 but there may be steps that can be taken to negate some of the impact of this effective tax increase in the time available.

If you would like to discuss what might be possible, please contact Cathy Corns or me.

Entrepreneurs' Relief

As we reported last week, Alistair Darling has released details of what he and HM Revenue & Customs are calling “Entrepreneurs’ Relief” (which probably sounds better than the U-turn that many consider it to be).

Under this new relief, which is set to become law from 6 April 2008, the self-employed, employees and directors will qualify for a 10% tax rate on selling their interest in the trading business or company for which they work.

 

Continue Reading...

The Capital Gains Tax changes - stop press

The Chancellor has just announced a new capital gains tax relief for entrepreneurs to ameliorate the effect of the new 18% flat rate that comes into force from 6 April.

The relief will be targeted to the owners of small businesses as well as employees and directors who, very broadly, hold at least 5% of the shares in a trading company. The relief is said to apply on the sale of the shares.

The relief reduces the tax rate on the first £1 million gains but as a lifetime limit. For gains over £1 million the standard rate of 18% will apply.

Further details are promised but at the time of writing this are still not available. The details so far available can be seen in full at http://www.hm-treasury.gov.uk/newsroom_and_speeches/press/2008/press_05_08.cfm  

Capital Allowances - Draft Legislation Published (AT LAST!)

In his Spring 2007 Budget, the Chancellor (who at that point was still Gordon Brown) announced changes to the capital allowances regime, without giving more than the most rudimentary detail.

A lengthy consultation period followed and it is only now that HM Revenue & Customs have published draft legislation. The document runs to 91 pages(!) with the most important changes being:

Continue Reading...

Income shifting - It could be you

Given the Revenue’s dummy spitting response to the House of Lords’ judgement in the Jones v Garnett (Arctic Systems Limited) case, it was a safe bet that any attempt to stop husband-and-wife businesses shifting income between spouses would be hard hitting and wide ranging. Continue Reading...

Happy Christmas from the Tax Man

I am sure you already know this – but just in case – HMRC allows companies to spend £150 per head per year on staff parties, tax-free for the employees. This total should not only cover food and drink, but also accommodation and transport if the employer pays for these, plus VAT, divided by the total number of guests. The number of guests should include non-employees.

A few important points to remember:

  • The limit applies for a tax year, so if you give a Summer and a Christmas party that together cost less than £150 per head, both will be tax free for employees
  • The £150 is per head not per employee – which helps if partners are invited
  • But the £150 is the total cost including not only food and drink but also travel and accommodation.

Have fun!

Some good news for business... reduction in red tape!

In the Queen’s Speech this week - Gordon Brown's first as Prime Minister - the government has promised a new bill to reduce the regulatory burden on businesses (a new Regulatory enforcement and sanctions bill – which actually sounds quite daunting itself!).

Worryingly bearing in mind its aim, it is apparently one of 22 Bills and seven draft bills in the legislative programme.


Continue Reading...

Charities Act 2006 - an update... (2/2)

VAT Registrations - a positive note!

As my colleague reported in August, businesses have been experiencing very lengthy delays in obtaining a VAT number. This was due to a backlog of applications with HMRC, due in part to increased checks to try and eliminate “carousel fraud”. Continue Reading...

Government retreat on key tax reforms

According to The Times the Government are looking to mitigate the changes proposed in the Pre Budget Statement three weeks ago. Apparently the plan is to introduce a form of retirement relief of £100,000, aimed to assist small businessmen who are selling up and retiring. As of the time this was posted the HMRC website had no details on this and so we do not know if it is accurate and, if so what is meant by small or retiring or what tests have to be met to qualify.

Any mitigation of the tax is welcome and I will be in touch again when more details are available.

The European Commission to simplify the business environment... (3/3)

Extended exemptions for certain medium-sized companies

With the accounting environment currently buzzing with talk of deregulation, the new Companies Act 2006 and lower compliance costs, the European Commission have also joined the band-wagon.
Continue Reading...

The European Commission to simplify the business environment... (2/3)

This blog follows on from my last post.

As companies move between SME accounting thresholds, the reporting structure and contents of financial statements changes.
Continue Reading...

The European Commission to simplify the business environment... (1/3)

The European Commission have recently published some documentation that is aimed to significantly simplify the business environment that EU companies face. They revolve around reducing reporting and auditing requirements for SMEs, simplifying disclosure requirements, and convergence. Continue Reading...

Construction Industry Scheme (CIS) changes from October 2007

Do you know who your company is associated with?

Companies pay corporation tax at 20% on the first £300,000, right? Wrong! A company pays at 20% of the first £300,000 divided equally between it and its associates.

Companies are associated where:

·         one of the companies has control of the other, or

·         both of the companies are under the control of the same person(s).

A person controls a company if he is entitled to >50% of:

·         the share capital, or votes;

·         the distributions to shareholders;

·         the assets on winding up (this includes loan creditors).

The problem is that when looking at control you have to take account of a person’s associates. These are:

·         spouse (includes separated, but not divorced) and civil partner

·         parents, grand parents and remoter forebear

·         brother or sister, including half siblings (but not step, aunts, uncles or cousins)

·         partner (as in a business partnership)

·         settlements and will trust associates; - trustees are associated where the individual, or any living or dead relative is or was the settler; and where the individual is interested in a settlement, then beneficiaries, remainder men and trustees are associates.

Under self-assessment it is your responsibility to make sure your company pays the right amount of tax.

So – are you sure you know all your company’s associates?

Business Promotions - a minefield!

Are you involved in sales promotion schemes? If so, you may be interested to hear of two recent Court of Appeal decisions which will affect the VAT treatment. These cases are the latest in a long line of cases dealing with business promotion schemes. Continue Reading...

Changes to Capital Gains Tax - Have Your Say

If you are concerned about the proposed change to a new flat Capital Gains Tax rate of 18% you may be interested to know that a petition has been opened on the Downing Street website.
Continue Reading...

Further developments on Companies Act 2006 - Implementation Stage 6 April 2008

The staged introduction of Companies Act 2006, has already made interesting reading. It appears as though the ASB are taking a more ‘practical’ view on company statute and are making some impressive ‘common-sense’ amendments to an outdated CA85.

The next stage, is anticipated to be rolled out for implementation from 6th April 2008. The major developments worthy of mention are

  • Private companys are no longer required to have company secretaries.

  • There is a shorter filing period as mentioned in a previous blog (private companies have 9 months).

  • There are no longer any medium sized group exemptions (ie all non-small groups will need to consolidate).

  • The turnover exemption for medium sized companies has also been abolished.

    Watch this space for more updates and news, alternatively contact us directly…

    Related Links

    BERR:
    http://www.berr.gov.uk/bbf/co-act-2006/index.html
    ICAEW:
    http://www.icaew.com/index.cfm?route=145195

More regulation or deregulation? ...whichever your viewpoint, there are some interesting changes.

A number of regulatory changes are to come into effect on the back of Companies Act 2006. The most interesting issues, that are being implemented with effect this month, are outlined below.

  • Directors’ duties are in statute now

If you are a company director you will need to know and adhere to your obligations under company law. Previously a recommended practice, your obligations to prepare financial statements, safeguard assets, implement controls etc are now part of the law! Of course you are likely to undertake these as part of your day to day running of the company, but you should be aware of the change in status of these obligations.

  • No need for company AGM’s (part 13)

There is no longer a legal requirement for private companies to hold an AGM. For most owner managed business this is a welcome move, the benefits rarely exceed the costs. However note that 10% (5% in some circumstances) of the shareholders can demand an AGM. As a result of no longer requiring an audit, there are a few ‘knock on changes such as the automatic re-appointment of auditors in private companies.

  • The business review (S417)

Of late the ASB has encouraged a more ‘chatty’ approach to the Business review in the directors’ report, emphasising more commentary on non financial factors, including KPIs, internal management processes, and industry performance (small entities are exempt). The ASB have further iterated the importance of the business review, and the director’s accountability to the company’s shareholders. There is a reluctance for directors to get too ‘close and personal’ with the Business review, as they are ever cautious about divulging information in an increasingly competitive business environment. The key is balance… the business review needs to meet its objective of informing the readers of the annual accounts, of the financial performance and position of the company. Despite the reluctance of many directors, you must remember you are not the only one out there facing the same dilemma!

For more information on the new companies act 2006, follow the links below…

http://www.berr.gov.uk/bbf/co-act-2006/index.html

ICAEW

alternatively please feel free to contact us directly.


Audit exemption limits... on the up?

Draft regulations published by BERR (did you know this is the new name for the DTI?) have outlined increases in the size criteria for audit exemption. These are proposed to be effective for financial years beginning on or after 6 April 2008


Continue Reading...

Pre Budget Report 2007 - Arctic Sytems

Below is a brief update on the Arctic Systems case from Lisa Spearman, Mercer & Hole Partner and Tax Plus Blog contributor.

An announcement has been widely expected and commented on in this and other blogs following on from the Revenue’s defeat in the House of Lords. This is a case of the dog that didn’t bark or at least not yet.

Continue Reading...

Additional employment cost - one to watch for the future

In a recent article by Mike O’Brien, the current Minister for Pensions Reform, on the Department for Work and Pensions’ website, some further details on the proposed changes to pensions in 2012 were outlined.

Essentially the Government’s view is that people are not saving enough for when they retire.

To tackle the problem of under-saving, from 2012, millions of people will be Continue Reading...

2007 Pre-budget report and comprehensive spending review

The Chancellor of the Exchequer, Alistair Darling, will be presenting his 2007 Pre-Budget Report and the outcome of the Comprehensive Spending Review on the afternoon of Tuesday 9th October.

I will post details of important announcements here shortly after the end of his speech.


Internet filing at companies house

With the increase in company fraud involving the lodging of forged statutory forms with companies house it is now important that every company considers using internet filing to ensure it keeps its statutory details up to date and “safe”.

Applying for internet filing is straight forward. Go to Continue Reading...

HMRC prepares for more raids on offshore accounts

Following the original article on the BBC website and covered  by my colleague Lisa Spearman on  Tax Plus Blog.

A bigger picture is being uncovered with many more articles appearing on the Internet and you can read a selection of other professional opinions by clicking on the links below.

 

http://www.accountancyage.com/accountancyage/news/2199454/hmrc-considers-plan-access

 

http://ifaonline.co.uk/public/showPage.html?page=ifa2006_articleimport&tempPageName=469687

 

http://www.ft.com/cms/s/0/f2cb6c44-6bc9-11dc-863b-0000779fd2ac.html

 

Has your registered office changed without you knowing?

When completing the audit of one of my clients this week we noticed that the company’s registered office address had mysteriously changed. 

My surprised client had never heard of the address some 50 miles away. We obtained a copy of the signed form 287 from companies house and it became apparent that the director’s signature had been forged

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Business concerns

The Institute of Directors recently unveiled a policy paper ‘The SME Glass Ceiling – Growth Obstacles in 2007’, which identified a series of priority issues for government action.

Apparently regulation, taxation and education are (and were) of concern to businesses of all sizes. The report identifies five issues that are highlighted specifically by small and medium-sized enterprises (SMEs).

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Exit strategy? - be prepared

It may sound obvious, but I thought I would raise the issue of ‘preparation’ in business sales as many transactions I have been involved in recently have illustrated a distinct lack of it.

I have written previously about making the business as autonomous as possible from the current owners – this is the key method to successfully inflate your sales price. There are several other simple procedures which a vendor should undertake

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The end.. or a temporary pause?

I do not normally talk about economic matters on this blog, but the Sub-prime problems in the US could have an implication on the SME transactions market.

I will try to describe the problem in layman's terms (i.e. those that I can understand!!)

 

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July hassle - will anyone listen?

Now that all the hassle is over I took some time to reflect on the pressures applied to business by the Revenue. I know the returns of benefits (forms P11d) have been around for years but so has the old “higher-paid” limit of £8,500. So employers have to fill a form in for anyone paid the minimum wage who receives any benefit at all.

Sure dispensations can help but actually getting one out of the Revenue is not always as easy as one would hope.

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Donations to charity

I was asked recently for advice by a client, a 40% taxpayer. He wanted to make a substantial donation to charity, funded by the sale of an investment property. The property had a market value of £100,000 and the cost was £20,000.

Basically he had two choices : gift cash, or gift the property.

If he sold the property and gifted the funds to charity the position would be: Continue Reading...

Double tax relief on loans

Every business aims to achieve maximum tax relief on borrowings.

There is a difference between the rules for tax relief on loans between income and corporation tax and inheritance tax (IHT). For income and corporation tax, relief is given for interest paid on borrowings incurred for the purpose of a trade including a rental business. Accordingly, relief on interest is given based on the purpose of the loan. However, for IHT purposes, a loan relates to the value of the assets on which it is secured or charged.


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Husband and wife businesses - Jones v Garnett : the saga continues

The House of Lords issued their judgement in the case of Jones v Garnett (also known as the “Arctic Systems Ltd” case) on 25 July 2007. To much rejoicing the case was decided in favour of Mr and Mrs Jones. However, the Revenue is a bad loser.

On 26 July a written Ministerial statement was issued by the Exchequer Secretary to the Treasury, announcing the intention to change the law.

Using the standard “the Government is committed to maintaining fairness in the tax system” statement the Government now believes it needs to do something to “ensure that there is greater clarity in the law regarding its position on the tax treatment of income splitting”. Actually, in my opinion, the law is now clear – it may not say what the Revenue wants it to, but that is unfortunate (for them) rather than unclear.

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Husband - wife businesses - at long last we can plan for the future

The long awaited decision on Arctic Systems

This all seems to have been going on for so long you may need reminding of what all the fuss is about; so

- Mr and Mrs Jones ran a small IT company of which Mr Jones was the sole director. They each owned one share in the company took a small salary and extracted the majority of their required funds by way of dividend. These, of course, were paid in line with the shareholdings, on a 50:50 basis.

Nothing out of the ordinary there so what was the problem? It seems to be that Mr Jones paid tax at higher rates and Mrs Jones did not. HM Revenue & Customs (HMRC) argued that the settlements legislation should apply to the dividends paid to Mrs Jones such that they should actually be taxed (at the higher rate) on Mr Jones.

The Special Commissioners and the High Court (April 2005) agreed with HMRC, however the Court of Appeal (December 2005) rejected HMRC’s argument.

The result of all this is that there has been significant doubt about the correct tax treatment and obligations to report income and dividends in such circumstances.

The House of Lords unanimously decided in favour of the taxpayer. The key issue appears to be that an ordinary share is not “wholly … a right to income” and therefore the dividends are not caught by the settlements legislation.

This represents a resounding success for taxpayers and gives them back the right properly to plan their affairs in companies and partnerships.

If you were waiting for this judgement to instigate any planning or indeed need help on amending returns for earlier years, please contact any member of our tax team

Salary sacrifice - Can everybody win?

I appreciate that salary sacrifices have been around for a long time but, in view of the current state of the economy, it may be worth looking at the areas where these can still be useful.

Basically, ‘salary sacrifice’ is the term used to describe the position when an employee gives up the right to future remuneration in return for their employer paying the money to an alternative source for their benefit. Some key areas for this at the moment are childcare vouchers, parking permits, etc.

Using childcare vouchers as an example, typically the employee gives up income of, say, £55 a week gross, (for higher rate tax payers £32 per week net), and instead receives £55 worth of childcare vouchers which are tax free. There is an obvious saving for him (or her) of £23 per week. For the employer the saving comes in the form of national insurance at around £7 per week which should cover the cost of the administration. If not there is obviously a deal to be done.

Planning-gain supplement may be dropped

Whilst outlining the Government’s draft legislative programme for the next Parliamentary session to the House of Commons recently, Gordon Brown indicated that the Planning Gain Supplement Bill may be dropped! 

In his statement the Prime Minister said:

 

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HMRC Enquiries - avoiding disputes and agreeing settlements

HMRC has recently set out its strategy on tax litigation and settlement - what does this mean for your business?

Following the merger of HM Revenue & Customs, the old Inland Revenue appears keen to get its hands on the extra powers previously enjoyed by Customs and Excise. This is clear from HMRC’s latest guidance on its “Settlements and Litigation Strategy”.


This sets out the principles HMRC aims to follow for avoiding tax disputes and

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Small business - the lifeblood of industry or an irritation to government?

I have been reading the latest batch of consultative documents and finally reached the stage of deciding enough is enough. The paper that tipped the scales was the Discussion Document on the Taxation of Foreign Profits (comments on this will follow separately). Ignoring the “use” of English worthy of Big Brother (the original not Channel 4 version!) the content is also unhelpful.

The introduction was, shall I say, interesting – it referred to the Budget 2007 reforms and other proposed measures as “refocusing the tax system’s support for small businesses.” Forgive me, but how does increasing the rate of corporation tax for small companies and decreasing capital allowance rates show support? Is it that the support is being refocused away from small business?
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Do you trust the Revenue?

After the media reports that around a million people are paying the wrong amount of tax this may not be the perfect time for HMRC to propose they are given an automatic right to collect unpaid (in their opinion!) tax by various measures including offset from other tax credits or repayments; direct from bank accounts; or by set off from salary - all without the need for any court order. Apparently, they say, this will reduce collection costs and bring forward payment dates. I have to say I believe that statement is accurate. I do also have to say that without a hearing you – the taxpayer – will have no right to defend your position.

Are HMRC always correct in the amounts of tax they request? Patently not, but if the tax is forcibly extracted from you how hard will it actually be to get it back? I accept that legally possession is not really 9/10ths of the law but in practise possession is, even if only temporarily, 100% entitlement! HMRC say that they will employ their powers responsibly; I am tempted to point out that they would say that or they may not get them.

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Mileage Allowances - New Fuel Rates


H M Revenue & Customs have announced new advisory fuel rates which can be used by businesses to reclaim VAT on employees mileage allowances for business travel.

The new rates which apply to all journeys on or after 1 August 2007 are as follows:-
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How private is your house?

An Englishman’s home is his castle – well maybe, but HMRC are looking to storm the drawbridge. In a recent consultative document HMRC put forward some plans - unannounced visits to private homes.

In HMRC’s view private residences come in three guises:

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Clubs and associations- Back into the Corporation Tax net ?

Will your club or association start having to pay tax ?

With the withdrawal of the nil starting rate for all entities subject to Corporation Tax there has been concern that many small clubs and societies will fall into the Corporation Tax net and need to complete returns and pay corporation tax in respect of very small sums of income.

However, HMRC have announced that where the annual corporation tax bill for a club (or unincorporated association) is less than £100 and the club is run exclusively for its own members, then they will prevent the issue of a notice to file returns and treat the club as dormant, subject to a five year review.

This seems a very sensible move although, as always, the guidance is subject to a number of matters so if you are associated with a club or association you will need to look at the small print to see if it qualifies.

More late accounts filing penalties or a missed opportunity?


When the new Companies Act comes into force later in the year, the period for filing private company financial statements reduces from 10 months to 9 months whilst that for public companies reduces from 7 months to 6 months.

To me this seems a cop out and a missed opportunity. I would have liked to have seen all companies filing deadline being six months. In today’s technological age I can see no reason why any company needs more than six months to complete their accounts and if this was the filing deadline then the information at Companies House would be far more up to date.

Will the new deadlines lead to more late filing penalties ?

I believe that whatever the deadline some companies will put off preparing their accounts to the last minute (just as we see with the 31 January personal tax return deadline) and some will inevitably miss their submission date and hence still get a penalty. You know who you are !

Capital spends - Tax planning for growing businesses

It is important to review capital spend to see what capital allowances are available:

  • 100% on green technology – see http://www.eca.gov.uk/ (if you are selling rather than buying should your product be registered?)
  • 50% or 40% first year allowances for certain businesses on plant and machinery
  • 25% on plant, fixtures, cars, etc (cars capped at £3,000 p.a.)
  • 6% on plant with a life in excess of 25 years
  • 4% on industrial buildings

 

You will appreciate that it is important properly to review the nature of the spend to maximise tax relief.

If plant is to be leased, the key areas to consider are whether the leases will be:

  • Finance leases where the lessee takes on the risks and rewards of ownership that provide for tax relief on interest costs and depreciation

 

  • Certain new leases may transfer capital allowances to the lessor – see separate note on long funding leases

 

  • Other operating leases – tax relief on lease costs (capped for cars with a value in excess of £12,000)

New website disclosure

As all company directors are no doubt aware, a company must display its full company name on a range of documents including business letters, notices, official publications, orders, cheques, invoices, receipts and letters of credit.

In addition a company needs to include on all its business letters and order forms additional information including its place of registration, company number and the address of the registered office.

However, following the sexily named “The Companies (Registrar Languages and Trading Disclosures) Regulations 2006”, websites too will also have to include the information required for business letters. The website will also need to state, if applicable, if the company is being wound up.

So make the call to your website developers now whilst you remember.

A new Companies Act

I was talking to an American client recently who asked me why the UK still has legislation from 1985. Thankfully this is about to change.

The Companies Act, and the various revisions to it, dictate the way most business is conducted and administered in the UK. A major revision to the act has been finalised, with the final changes being implemented in October 2008.

The major upside of this for Companies is that the amount of ‘red tape’ is expected to be reduced – especially for small businesses. This is a relief for the many directors and shareholders who find the current Companies Act difficult to understand.

See the press release on http://www.gnn.gov.uk/Content/Detail.asp?ReleaseID=267665&NewsAreaID=2 for more details.