By Ian Maston, solicitor, Chiltern plc, London


The impact of CGT reform on businesses and partnerships

The part of the 2007 Pre-Budget Report that attracted most attention was the proposal to reform capital gains tax (CGT) for individuals, partners, personal representatives and trusts.



The replacement of taper relief by a flat 18% tax rate for disposals after 5 April 2008 will seriously affect many owners of businesses or business assets, most of whom currently enjoy an effective 10% CGT rate. On the other hand, the vast majority of investors who own non-business assets will benefit from the new regime.



In response to the widespread criticism of the proposals, the Chancellor is reported to have indicated that some relief will be provided. This may take the form of the retirement relief that was available before the introduction of taper relief, or some other transitional provisions.



We must await the draft legislation before making decisions or recommendations, but where it was already intended to make an early disposal of a business or business asset that has been held for at least two years, it will generally be advisable for this to be effected before 6 April 2008, in order to be sure of securing the effective 10% tax rate. For small disposals involving proceeds of up to, say, £100,000, it may be worth waiting for the draft legislation, in case this proposes outright exemption up to a certain limit.



So far as clients are concerned, if a sale cannot be effected before 6 April 2008, there are other types of disposal that would trigger taper relief, where it would be advantageous to do so, including:

l Incorporation of a business;

l A company purchase of own shares; and

l The transfer of a business or a business asset to another person or a trust.



Particular issues arise in relation to loan notes. Where these have already been taken in exchange for shares, the client will need advice on whether to redeem these (if that is possible) before 6 April 2008. The structuring of future earn-outs will now also have to be reconsidered.



The inflation indexation allowance (which only applies for the period from April 1982 to April 1998) will also be withdrawn for disposals after 5 April 2008. For some assets, especially land and property, this is quite a valuable relief that can more than double the base cost, and it should not be overlooked when preparing calculations for the purposes of deciding whether to take any action before 6 April 2008.



A particular point with the indexation allowance is that, unlike taper relief, it can be 'banked' by a transfer to a spouse or civil partner. This may be a relatively straightforward and inexpensive means of preserving this relief in appropriate cases, although it still cannot create or increase an allowable loss on the eventual disposal of the asset.



Turning from considerations for clients to those for professional practices, the same principle will apply where a sale in the near future is already proposed - namely, it will generally be advisable to try to effect the sale before 6 April 2008.



Where an early sale is not contemplated, however, it will not be possible to use some of the means described above to effect a disposal before 6 April 2008, due to the nature of professional practices. For example, an interest in a partnership or a partnership asset, or shares in an incorporated practice, cannot as easily be transferred to another person or a trust as is possible with many other types of business. It should also be noted that conversion of a traditional partnership to a limited liability partnership (LLP) is not a disposal for CGT purposes, nor is the transfer of a partnership-owned property into the ownership of the equity partners.



Nevertheless, some events peculiar to partnerships do provide an opportunity to bank taper relief and/or the indexation allowance:

l The most common event is probably a change in the partnership profit-sharing ratio. If this does not involve the payment of any consideration, the adjustment is treated as a no-gain/no-loss transaction for CGT purposes. As such, taper relief is not triggered, but for assets that were acquired before April 1998, it does bank the indexation allowance on the part of the cost of the asset that is reallocated between the partners. Where consideration is provided, either by an incoming partner or to a retiring partner, this does trigger taper relief and, if applicable, the indexation allowance, on the relevant amount.

l The upward revaluation of a partnership asset does not itself give rise to a chargeable gain, but a gain does arise on a subsequent change in the profit-sharing ratio. This will also trigger taper relief and, if applicable, the indexation allowance on the part of the notional gain on revaluation that is reallocated between the partners.



Where, therefore, it is proposed in the near future that a partner will retire, a new partner be admitted, or the partnership profit-sharing ratio changed for any other reason (especially where consideration has been provided, or there has been an asset revaluation), some taper relief and/or indexation allowance may be triggered if this is done before 6 April 2008.



In theory, a partnership-owned property could be transferred to a company owned by the equity partners, or to a trust for their benefit, and this could trigger taper relief and, if applicable, the indexation allowance, but the practical and commercial considerations would have to be carefully considered. Any transaction that triggers taper relief will result in an actual chargeable gain, involving payment of CGT at 10% on 31 January 2009, so there would be little point in taking such a course if no sale is anticipated for some considerable time. There may also be VAT, inheritance tax or stamp duty land tax implications.



Some practices have incorporated as limited liability companies rather than taking the LLP route, so if this option is attractive or is already under consideration, it could be used to bank taper relief in relation to goodwill or other partnership assets such as property. There are different methods of incorporation that will trigger taper relief, and advice would need to be taken on the most appropriate method in each case.



If a practice has already incorporated, and a senior shareholder wishes to retire or dispose of his shareholding in the near future, a company repurchase of shares can be more tax-efficient than a purchase by other shareholders, and this will trigger taper relief if HM Revenue & Customs' agreement to capital treatment is obtained.



According to the Chancellor, the main purpose of the proposed reform of CGT is to simplify the tax. The replacement of taper relief by the flat 18% rate will certainly simplify matters, at considerable cost to some taxpayers. The application of CGT to partnerships is something that could also usefully be addressed, as this is almost completely absent from the tax legislation, and it is necessary to refer to Revenue & Customs' statements of practice and internal manuals, which is hardly satisfactory for a tax that has now existed for more than 40 years.