The Chartered Institute of Taxation (CIOT) has recently highlighted concerns about the application of loan to participator rules and their potential 'unfair' effect on legitimate tax planning, such as where an 'upstream loan' is made to fund a management buyout.
Subscribers see Loans to Participators (Close company checklists) for a detailed guide to this which includes a case study illustrating how a s.455 charge could arise in a Management Buy Out (MBO) transaction.
- Under s.455 CTA 2010, a Close company is liable to a tax charge, often referred to as a 's.455 charge', if a loan is made to a participator (typically a shareholder) and it is not repaid within nine months after the end of the company’s accounting period.
- The scope of the s.455 charge is extended by s.459 CTA 2010 to include arrangements where:
- A close company makes a loan or advance which does not otherwise give rise to any charge under s.455, and
- A person other than the close company makes a payment or transfers property to, or releases or satisfies (wholly or partly) a liability of an individual who is a participator or an associate of a participator.
- The s.455 charge aims to prevent tax avoidance schemes where loans are used to extract profits from companies without paying appropriate taxes.
CIOT's Concerns
- CIOT's submission emphasises that while the s.455 charge is crucial for preventing tax avoidance, its current application could unfairly affect some commercial transactions, due to the extension of the s.455 charge by s.459 CTA 2010.
- They provide an example of a Management Buy Out (MBO) scenario:
- Where the MBO team form a new company to purchase the shares in a target company and shares and loan notes are issued as consideration to the vendor shareholders.
- To pay the vendor shareholders their consideration it is usual for:
- The target company to pay a dividend up to Bid co, and Bid co to use the funds to pay the vendor shareholders, or
- The target company to loan the money to Bid co (upstream loan), which can be used to pay the vendor shareholders.
- Under the second option, a close company has loaned the funds to another person which have then been potentially used to make a payment to a participator (or an associate of a participator) a s.455 charge may arise because of the extension by s.459 CTA 2010.
- It seems unfair that a s.455 charge could potentially arise when the repayment of debt is funded by an intra-group loan, but not when it is funded by a dividend.
Conclusion
- We have never seen HMRC seek to apply this point in practice, but the risk of s.459 CTA 2010 applying creates uncertainty when carrying out tax planning.
We eagerly await HMRC’s response, which we hope will bring clarity to this issue.
Editor's comments
Tax planning is complex. It's crucial to thoroughly consider all tax implications of the transaction to mitigate any risks. Please note that this scenario focuses solely on demonstrating the CIOT's submission point and does not cover all tax implications that need consideration.
Useful guides on this topic
Close company loans toolkit (loans to participators)
What is the Corporation Tax treatment when a close company makes a loan to a participator (director-shareholder)? How do the 'bed and breakfasting' rules work?
Close companies: Definitions & control
What is a Close company? What are the tax consequences? What is a Participator? What is meant by Control of company? What are the tests for Control?
Management Buyout: What are your options?
What are the most straightforward options to facilitate a retirement by the businesses' owners and the management of the company to take over or buyout? For example, what happens when two current directors/shareholders wish to retire and sell to a manager?
Directors' loan accounts: Toolkit (Freeview)
At a glance: HM Revenue & Customs (HMRC) provide a Director's loan toolkit for advisers. This is our own version with planning points.
Directors' loan accounts: Toolkit (subscribers)
HM Revenue & Customs (HMRC) have a director's loan accounts toolkit for advisers. This is our enhanced version with planning points.
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