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The legal side of working through a limited company can seem confusing, and so we have answered some of our most frequently asked legal questions.
You do not actually need to pay any National Insurance to get a qualifying year for state pensions. Provided you have received a salary in excess of the lower earnings limit (£6,136) you will be credited with a qualifying year.
It is possible to buy and sell shares in other companies through your own company, however, this is not always the most tax efficient way to make these transactions – when making a decision about whether to do this, the following should be considered:
An individual who has gained in excess of their annual exempt allowance is taxed at 10% if a basic rate taxpayer and 20% if a higher rate taxpayer, gains made by a company are taxed at the prevailing corporation tax rate (certain exceptions apply – below)
Although unlikely – if income from investments (dividends) exceeds 20% of turnover, the status of the company may be classed as a ‘closed investment holding company’ and all profits made by the company (not just from investments) would be subject to the main rate of corporation tax (19%).
Dividends paid out from investments are not subject to Corporation Tax. Dividends paid to a person who is a basic rate taxpayer are subject to tax at 7.5%, however, there is a £2,000 tax free dividend allowance. Higher rate taxpayers pay an effective rate of 32.5%, or even, 38.1% if an additional rate taxpayer – of course, if the investments are made by the company, any profits made on the investments will need to be extracted from the company and could affect your personal tax position at that point
The cash paid out when purchasing shares would be classed as an investment and not an expense, no tax relief would be available in respect of the initial cash outflow. Irrespective of whether the investment is made personally or through the company, capital losses can only be offset against gains made separately – if the company has unrelieved capital losses when wound up, the opportunity for tax relief is lost.
The main advantage of investing company funds is that the cash does not need to be first paid out as a dividend, therefore, it has no effect upon your personal tax position before being invested.
Shareholders looking to wind up their companies will be left with the following options:
Any distribution made to shareholders in liquidation (formal or informal) is treated as capital for tax purposes and therefore is subject to Capital Gains Tax (CGT) rather than income tax (applicable to dividend distributions). This can be extremely advantageous to shareholders of a company as it allows them to utilise their CGT annual exemption (£12,000) and if they are eligible to claim Entrepreneurs’ Relief, any gains in excess of the annual exemption are taxed at 10%.
Nixon Williams has established a relationship with a licensed insolvency practitioner who will formally liquidate a company introduced by us for a fixed fee of £1,495 + VAT and disbursements (approximately £300). The VAT on these costs will be reclaimed by the insolvency practitioner, assuming the company was VAT registered. If your company has reserves in excess of £25,000, Nixon Williams can calculate whether the tax saving obtained from formally liquidating the company will exceed the fees associated with the appointment of the insolvency practitioner.
We estimate that if you are seeking to close a company with reserves in excess of ££36,650, formally liquidating the company will generally yield the highest return, after having paid all taxes and professional fees. This statement assumes that your income has already/or will during the tax year, exceed the higher rate tax threshold and that the gain is eligible to entrepreneurs relief.
You can lend money to another company that you are a director of providing that your company holds sufficient amounts of cash to meet any liabilities that fall due whilst the loan is outstanding. Details of the loan must be disclosed by a note to your accounts as a ‘Related Party Transaction’. No corporation tax relief would be obtained through making such a loan and the two companies may be considered associates for corporation tax purposes which (if applicable) would reduce the threshold at which your profits would be subject to the small company rate – the threshold would be divided by the number of associated companies.
It is a common belief among small business owners that by structuring a company’s shareholding in such a way that a portion of dividends is payable to a family member will reduce the overall tax payable, however, HMRC have anti-avoidance legislation to prevent this set-up from being operated, this is called Settlements Legislation (S660).
Under this legislation, if such a payment was made, then the tax burden would fall upon the fee earner – thus negating the potential benefit of using the split shareholding. The legislation was famously put to test in 2007 in the Jones vs. Garnett (Arctic Systems) court case which ruled in favour of the taxpayer, however, as the settlement was between a husband and wife it was considered to be exempt from the legislation due to the shares being treated as an outright gift between spouses. The legislation would, however, still apply if the agreement was not between spouses or civil partners but to other members of the family where the money is somehow transferred back to the fee earner.
If your child is of ‘compulsory school age’ (between the age of 13 and the last Friday in June of the academic year their 16th birthday falls into), they will be classed as a child employee and certain requirements will apply to their employment:
A work permit must be obtained (available on application) from the local council’s education department, no work can be undertaken until this is received.
As part of the application, desired working hours must be included, which are subject to the following rulings:
The work permit will also only be granted subject to a maximum number of hours:
Self-billing is an arrangement between a supplier and a customer in which the customer prepares the supplier’s invoice and forwards a copy to the supplier with the payment. If you find yourself in receipt of such paperwork then it is a VAT Regulation that you work from this and do not create your own invoice.
Yes, company directors and other self-employed persons need to complete a Self Assessment Tax Return if they are not taxed under PAYE. All you need to do is complete our tax return questionnaire online (by 3 following the tax yearend in question), we will contact you for any further information/payment that is required. The completion of a standard Self Assessment Tax Return is included as part of our service but extra charges may arise for any non-standard returns i.e. those with rental income, capital gains calculations or particularly complex tax affairs. A charge may also apply if you joined us part way through the tax year.
Assuming that you are married or civil partners then a transfer of some shares can now be made to your spouse. Note that this is not available to unmarried couples or other relatives; please refer to our dedicated page on this area for more details.
The Settlements Legislation, more commonly known as the Income Shifting Legislation or Section 660 is one of the most important pieces of tax legislation relevant to contractors (along with IR35).
Split Shareholding (50/50)
|Profit after Tax||
|Total Take Home||
Clearly, in the above example, the take-home pay of the shareholders is maximised by splitting the shares in A Ltd as the tax payable on the dividends is reduced by utilising the second shareholder’s basic rate band.
The implications of this are quite simple in theory, if there has been a transfer caught by the settlements legislation (with no exemption due to marriage etc.) then the transferor should be assessed on the value of if the income was given away generated by the asset that they still have an interest in.
However, in practice, it is not as straightforward as this.
Arctic Systems is the most famous test of Settlements Legislation in the UK courts, the case concluded in June 2007 with a House of Lord’s judgment in favour of the taxpayer.
Arctic Systems Ltd was set up by Mr & Mrs Jones, each of whom subscribed to half of the shares. The turnover of the company was derived from the work undertaken by Mr Jones, however, the salary paid to Mr Jones was much lower than this which resulted in high profits and dividends being paid out to Mr and Mrs Jones in accordance to their shareholdings.
HMRC argued that a settlement had been created on the basis that the shares owned by Mrs Jones were an arrangement to reduce the family tax burden rather than a transaction made at arm’s length. The basis of their argument was that Mr Jones would never have agreed to a complete stranger owning half of the business for £1 and so the arrangement was viewed as being bounteous.
The case went through the Special Commissioners (in favour of HMRC), the High Court (again, in favour of HMRC), the Court of Appeal (in favour of the taxpayer) and finally to the House of Lords (in favour of the taxpayer).
The judgment given by the House of Lords found that a settlement had taken place, but that Mr and Mrs Jones were not subject to the Settlements Legislation due to the spousal gift exemption i.e. there was an outright gift which was not wholly or substantially a right to income. The Jones’ were entitled to the spousal gift exemption because they were both married and living together.
Given that this case went as high as it could go within the UK legal system a binding precedent has been set for all subordinate courts, they should, therefore, come to the same decision if faced with the same circumstances. However, if the situation is significantly different then the courts may come to a different decision.
A dividend waiver is used by a shareholder when they do not want to receive their share of a dividend in order to retain extra funds in the company to be utilised in other ways. The use of a dividend waiver should carry a commercial justification, not simply as a means of distributing funds to shareholders disproportionately to their respective shareholdings.
The precedent set by the Arctic Systems case would not necessarily apply to individuals that waive dividends paid to certain shareholders as dividend waivers were not used by Arctic Systems; this has been seen in the case of Buck v HMRC. In this case, the company was owned by Mr and Mrs Buck whose respective holdings in the company were 9999 and 1, Mr Buck waived his entitlement to dividends in respect of his shares in order to increase the dividend paid to his wife.
HMRC put to the Special Commissioner that the waiver of the dividends constituted a settlement to which the outright gifts exemption could not apply. HMRC successfully argued that there was no commercial reason for the waivers to have taken place and they would not have taken place if the second shareholder was completely independent to the controlling director. As a result of this there was no gift of property (i.e. shares) only a gift of income and thus the settlements legislation applies.
As with dividend waivers, the use of separate classes of shares in a company effectively enables that company to distribute its profits to the shareholders disproportionately to that than if they all held the same class of ordinary shares.
To illustrate this with an example, consider the scenario where ABC Ltd has two shareholders and wants to pay dividends to each of the shareholders on an uneven basis. If each shareholder held 1ordinary share (same class) they would both receive the same dividend, however, if each shareholder held different classes of shares (ordinary A shares and ordinary B shares for example) dividends could be paid unevenly by only declaring a dividend on one or the other of the classes of shares.
With this share structure, the rights attached to the different classes of shares is very important. Where the different classes of shares have identical rights (which include voting rights and rights to capital upon winding up) the transfer or issuing of these shares may not create a settlement because it may be argued that the shares are not ‘wholly or substantially’ a right to income. However, this is a setup HMRC do not seem to approve of and the precedent created by the Arctic System case does not cover multiple classes of share, therefore, this is something we do not advise doing as it is much riskier compared to a split shareholding consisting of only ordinary shares.
If you have multiple classes of shares with different rights i.e. Ordinary A shares with voting rights and rights to capital upon winding up and Non-Voting B shares (no rights other than to dividends) then the B shares would be seen as wholly a right to income and therefore caught under the settlements legislation.
The Arctic Systems case set a precedent that ordinary voting shares were not ‘wholly or substantially’ a right to income where they carried voting rights and rights to capital upon winding up as these rights greatly outweighed the right to a dividend (income), however, there are certain situations when the shares could be seen as a right to income and thus fail the criteria for the gift exemption to apply.
If you are looking to change the shareholdings in the company between yourself and your spouse more than once then you may run into problems if you were to ever be investigated by HMRC as the spousal gift exemption may not apply. HMRC may try and argue the shares that are being transferred are indeed a right to income because there is the expectation to receive the dividends if the underlying reasoning behind the transfer to ensure one or both shareholder(s) are to remain basic rate taxpayer(s).
If you make a share transfer and then pay a dividend shortly after this you might find HMRC trying to argue that again, the transfer is ‘wholly or substantially’ a right to income. This due to the fact that there probably was an expectation that the dividend would be declared/paid when the transfer took place and as such it could be seen that the shares transferred are a right to income.
If you make a share transfer and the company has high reserves (or reasonable certain expectations of high profits) at the time the transfer takes place then the shares transferred could be seen to be ‘wholly or substantially’ a right to income due to the fact that there is an underlying expectation to receive large amounts of dividends from the company’s reserves.
These factors should all be taken into account if you are thinking of making a gift of shares to your spouse or civil partner. You should also take into account HMRC’s statement made shortly after the House of Lords decision taken from ‘Arctic Systems Ltd (Jones v Garnett): HMRC guidance’ on HMRC’s website:
‘We have been keeping open some similar cases to that in Jones v Garnett whilst we waited for the decision in the House of Lords. We will now review all these cases and will seek to settle them in line with the Jones v Garnett decision if appropriate. Not every case will be exactly the same as Jones v Garnett. We will consider each case on the basis of its individual facts, but unless there are any additional factors which might cause us to take a different view, we expect that most cases where the settled property comprises:
The precedent created by the Arctic systems case does not cover share transfers made between unmarried couples or indeed couples (whether married or not) who do not live together. The reason that the taxpayer won the case is that of the spousal exemption for gifts – this exemption does not extend to unmarried couples or couples not living together and so they would be caught by the settlements legislation.
On 6th July 2004, The Conduct of Employment Agencies and Employment Businesses Regulations 2003 became effective for contractors whether they worked through a limited company, umbrella or directly through the agency.
The regulations attempt to govern the way agencies operate and protect workers employed by them. The rules apply to all workers but in our view are mainly directed to lower-paid employees and unscrupulous agencies.
A campaign by bodies such as IPSE, APSCO and REC succeeded in allowing the agency worker to operate outside the regulations (Opt Out) if they choose to do so.
If a contractor working through a limited company wishes to opt out the company and contractor must notify the agency in writing, before either the introduction or the supply of services to the client.
The notice can be withdrawn at a later point by the contractor, although the withdrawal will not take effect until the contract ends.
An agency cannot make opting out a condition of providing work-finding services. Therefore, opting out is an option to contractors, but if this option is exercised it must be made before the introduction to the client.
The main factors are:
Contractors will not be required to comply with certain procedural requirements of the Agency Regulations such as confirmation of identity. There will also no longer be any requirement upon the recruitment agency to obtain certain information from the client before placement of the contractor.
If your client has not signed a timesheet, the regulations do not allow the agency to use this as an excuse for non-payment. You would still need to prove that the work has been done before payment can be claimed but the agency could no longer use this as an excuse for non-payment. This regulation would override any contract terms. If you do Opt Out, this protection would be removed.
There is some argument that opting out strengthens your defence against IR35, whilst this may assist in showing that you do not have legal protection, this line of defence is probably weak.
At Nixon Williams, we do not have a firm opinion on either side. Some contractors have taken the view that opting-in to the Agency Regulations can put them at a disadvantage in obtaining a contract with a particular client. This is mainly due to the additional procedural requirements imposed upon the employment business and the client may delay the assessment of the contractor relative to a contractor who has opted-out of the Agency Regulations.
Another concern of clients is the additional employment risk of opted-in contractors on the basis that by being subject to the Agency Regulations the contractor will be more similar to a temporary employee rather than an independent contractor. Consequently, some clients may encourage the recruitment of contractors who have opted out of the Agency Regulations.
Certain recruitment agencies are also suggesting an additional on the cost to clients where there are additional administrative requirements for managing contractors who have opted into the Agency Regulations. This again may disadvantage contractors where clients prefer to avoid the add-on cost.
Agencies will usually encourage you to Opt Out, as this will make life easier for them.
With respect to ‘owner managed’ companies i.e. those owned and run by the same person(s), the director is in a unique position in that he can withdraw money from the company account with little or no checks on what is being withdrawn. Due to this unique position, and in order to satisfy HMRC and various accounting regulations, a company would set up a ‘Director’s Account’ within the accounting records of the company. All financial transactions between the company and the director must then pass through this account.
All payments due to the director such as salary, dividends and expenses will be credited to this account as amounts owing to the director and all payments to the director will be debited to this account thereby reducing the amount that is owed to the director. Provided a director only ever pays himself the exact amount owing in salary, dividends or expense reimbursement the balance on the Directors Account will net out to a nil balance.
If a director does not draw the full amount of money owed, then this will leave a credit balance within the company accounts. Likewise, if a director pays themselves more than what is owed this will leave a debit balance within the company accounts. The director will ‘owe’ the company the balance and so this becomes known as a Directors Loan.
Whilst HMRC have no problem with the company owing you money, a loan from the company to you carries various tax consequences as explained below. It makes no difference that the company is your own and that you may own all the shares because the company is a separate legal body and any loan made by it to you may be subject to additional taxes.
Also, you should note that a loan is only allowed under the Companies Act 2006 if there is prior shareholder approval (approval is not required if the loan(s) does not exceed £10,000).
There are two main areas that need to be considered when thinking about a director’s loan these are the personal tax position P11d and the company tax position (section 455 CTA2010).
Any loan that exceeds £10,000 at any point during the year (even if just by a penny) must be declared on the P11d each tax year in which the loan is outstanding.
The benefit in kind arises if the loan is a ‘beneficial loan’ i.e. the interest charged on the loan is below the official interest rate as set by HMRC (currently 2.5%).
Personal Tax Example:
The director of ABC Limited takes a director’s loan of £50,000 on 6th 2014. £10,000 is repaid to the company on 6th October 2014 with £40,000 being the balance outstanding at 5th April 2015; no interest has been paid to ABC Limited by the director so the loan is classed as a ‘beneficial loan’.
The benefit in kind is calculated as follows:
The benefit in kind would then be declared on the director’s personal tax return for the year and he would pay £292.50 (20% of BIK) in additional personal tax (assuming that he only has other income of £10,000 before dividends). If the director had a salary and other income in excess of £41,685 before dividends the tax due would be £585 (40% of BIK) and £658.13 if the director had a salary and other income in excess of £150,000 before dividends.
Effectively the BIK value is treated as salary and taxed as such, this also means that part of the basic rate band is take up meaning that £1,462.50 in gross dividends will now be pushed into the high rate threshold (assuming dividends have been previously declared up to or above the high rate threshold) which will result in additional high rate tax of at least £329.06 (possibly more if the director’s total income then exceeded £100,000).
Any loan that is outstanding at the company’s yearend is subject to a corporation tax surcharge under section 455 of the Corporation Tax Act 2010 (section 455 CTA2010). The surcharge value is calculated as 25% of the outstanding loan at the yearend and is payable with the corporation tax at the normal due date.
However, if part or all of the loan is repaid within 9 months of the yearend then the surcharge charged is reduced by 25% of the repaid amount and as such, if the whole loan is repaid within 9 months of the yearend, there will be no surcharge applied.
The benefit in kind value is equivalent to the official rate of interest on the loan less any interest paid by the employee (or director) to the company during the year.
The tax payable by the recipient of the loan will be at their marginal rate i.e. 20/40/45% on the benefit in kind value once calculated on the P11d and the company will also pay class 1a national insurance on this value.
Company Tax example:
A loan of £50,000 is taken on 6th May 2014 by the director and this is still outstanding at the company’s yearend of 30th September 2014. The full £50,000 is repaid to the company on 31st August 2015.
As there was a loan outstanding at the yearend the 25% surcharge is applied which equates to £12,500 in this case and this is payable by the company with the corporation tax due by the normal due date of 30th June 2015. Interest will be charged by HMRC if the corporation tax or surcharge is paid late.
By the company’s next yearend (30th September 2015) the loan has been fully repaid by the director and as such, the company is entitled to claim back the previous £12,500 that it had paid under section 455 CTA2010.
A letter will need to be sent to HMRC detailing the repayment of the director’s loan and to request a repayment be made for the surcharge previously suffered, at this point HMRC may want to see evidence that the loan has been repaid a (copy of the bank statement showing the repayment normally).
Once they are happy the loan has been repaid HMRC will issue the repayment of the surcharge tax and this will be issued by 30th June 2016 (the date the corporation tax is due for the period ending 30th September 2015).
As you can see, the surcharge paid under section 455 can be very costly, especially given the time lag between there payment of the director’s loan HMRC issuing the refund.
The surcharge is repayable by HMRC but only at a point when the director’s loan has been cleared. In this case, any monies paid under the surcharge will be repaid to the company 9 months after the end of the accounting period in which the loan is repaid.
This is a term used by HMRC to classify a series of loans as one single loan for P11d and section 455 purposes. Basically speaking, if you take out a loan, repay it on 30th November (for example) to avoid the section 455 charge then take out a new loan for the same amount on 1st December, HMRC would deem there to have been no repayment and as such the section 455 tax would be due.
If you wish to take a new loan out shortly after repaying one you should ensure it is for a different amount, a different purpose and leave as big a gap as possible between the loans. This bed and breakfasting is again something we would advise against.
Redundancy, in general terms, is where an employer needs to reduce their workforce for whatever reason (generally due to budget cuts/lack of income or because a workplace is closing) and the position you are in will no longer be available. If your employer takes on a direct replacement for you shortly after the termination then in actual fact your position was not made redundant.
If your employer is actively recruiting for more workers but not to fill the position that has been made redundant i.e. they are recruiting for other areas of the business, then this is acceptable.
A redundancy payment is a payment by your (to be) ex-employer as compensation where your job has been made redundant through no fault of your own.
The amount of statutory redundancy payment depends on your age, length of service and contractual earnings (up to a maximum of £450 per week). As a minimum you should receive the following redundancy pay (the statutory minimum) if you have been continuously employed for 2 years or more:
You will get:
When in receipt of a redundancy payment it may fall (or parts may fall) into one of the following three categories:
1. Entirely exempt payments
For the payment to be entirely exempt from the tax it must either be:
2. Entirely chargeable payments
Any payment not falling within the entirely exempt categories above that is made in return for service, will be fully taxable under the normal employment income rules. Although this can be quite a complex area to identify, in general terms, if the contract of employment provides for the payment to be made then it will be in return for service. If payments are made under ‘restrictive covenants’ i.e. in return for the employee promising something (normally not to work in a specific area or for a specific competitor) after termination then they are always taxable in full.
3. Partially exempt payments
Other terminations or redundancy payments such as compensation for loss of office are not taxable under the normal employment rules as general earnings because they are not in return for services (provided they are paid ‘ex gratia’ i.e. not contractually paid). They are, however, taxable as specific employment income with the first £30,000 being tax-free.
Any costs incurred by the employer in relation to outplacement services i.e. counselling for the employee’s benefit, are exempt and do not reduce the £30,000 exemption.
Please be aware that HMRC may treat termination payments made on or around an employee’s retirement as arising from an unregistered pension scheme and, as such, they would be taxable in full with no £30,000 exemption. HMRC indicate that a person of middle age moving on to further full-time employment would not be caught by this but a person of older years who has no prospects of further full-time employment may be caught.
You should take great care when determining if the redundancy payment is taxable in full or part. It is generally advisable to have all redundancy agreements reviewed by a suitably qualified person (an employment lawyer would probably be best placed to do this) to ensure the correct tax treatment is applied to the payments.
Remember also that these payments will need to be reported on your self-assessment tax return for the year in which the payment is due if you need to complete a return for whatever reason. If you are not normally required to complete a self-assessment tax return you may have to if there is a further tax to pay on the payment.
Director’s who are also employees can claim redundancy under the normal rules provided they are working under a contract of employment. However, in the case of Buchan v Secretary of State for Employment (1997), where the director was a major (controlling) shareholder, it was ruled that they were able to block their own dismissal and, therefore, cannot be an employee for redundancy purposes. It may also be worth noting that someone who is ‘self-employed’ may, in fact, and in law, be an employee and, if employed for 2 years or more, may also be entitled to a statutory redundancy payment.
Statutory Maternity Pay is paid to female employees who have had, or are about to have, a baby provided they have been in the same employer throughout their pregnancy and is compulsory where the employee fulfils certain requirements.
SMP is payable provided the employee has:
It is important to note that mothers have a legal entitlement to take up to 26 weeks off around the time of the birth of their baby whether or not they qualify for SMP. In addition, subject to 26 weeks service up to and including her qualifying week, many mothers have a legal entitlement to take up to a further 26 weeks unpaid leave so that many mothers can choose to take up to one year off in total.
The Amount Payable
SMP is payable for a maximum of 39 weeks at the following rates in 2014/15:
SMP is treated as normal pay and taxed accordingly.
Average weekly earnings (AWE)
AWE is needed to be calculated for two purposes:
The average is calculated by reference to the employee’s relevant period. This is based on an eight week period up to the end of the qualifying week. In some instances, subsequent pay rises have to be taken into account when calculating SMP. Earnings for this purpose are the same as for Class 1 and include SSP.
Recovery of SMP
Should your company qualify for Small Employers’ Relief (SER) you will receive funding for 100% of the SMP payable plus 3% NIC compensation. To qualify for SER, the total gross Class 1 NIC for the employee’s qualifying tax year must be less than £45,000. The employee’s qualifying tax year is the last complete tax year that ends before the start of her qualifying week.
SPP is paid to partners who take time off to care for the baby or support the mother in the first few weeks after the birth. It is available to:
The partner must have:
The Amount Payable
SPP is payable for a maximum of 2 weeks and must be taken in one block i.e. as 1 week or 2 but not 2 single weeks with a working week in between. It is payable at the following rate in 2014/15:
SPP is treated as normal pay and taxed accordingly.
The calculation of average weekly earnings and the recovery of SPP are subject to the same rules as for SMP.