More expensive to strike off a company?
Changes are to be made to the tax treatment of distributions made by companies to their shareholders before being struck off / dissolved. The changes, to take effect from 1 March 2012, will probably result in more businesses having to incur the additional costs of a formal liquidation process in order to ensure the distributions are received tax-efficiently by their shareholders.
Where a company goes out of business but does not wish to go through the additional administration, procedures and costs of a formal winding up / liquidation, it may simply distribute its remaining assets to its shareholders ahead of being struck off / dissolved. However, in such cases the distribution would not be made under a winding up and so would, as a matter of law, represent an income distribution. The shareholders would then potentially be subject to an income tax liability on the value of the distribution.
But where such distributions are made by a company “in respect of share capital in a winding up” they may, under Extra-Statutory Concession (ESC) C16, be treated as the equivalent of capital payments made in the course of winding up. The distributions would then be treated as chargeable gains (rather than income) of the shareholders on the disposal of their shares in the company; this will usually result in lower individual tax liabilities, as capital gains are currently taxed at 18%/28% compared with income which is taxed at up to 50%.
ESC C16 is to be moved from its current status of being an HMRC concession to being formally legislated in January 2012, and the new legislative provisions should take effect for distributions made on or after 1 March 2012. However, the proposed legislation is less generous than ESC C16 because it incorporates a financial ceiling on the capital treatment; it is proposed that a distribution made by a company prior to its dissolution will not be treated as an income distribution provided that the total distributions made do not exceed £25,000.
This means that small business owners will effectively be forced to incur the additional costs of a formal liquidation process in order to secure capital rather than income tax on any distributions above £25,000.
This also means that the valuation of the surplus assets could assume greater significance where the distribution on a winding up is an ‘in specie’ distribution, rather than cash, in determining whether the £25,000 threshold is breached.
Finally, consideration should be given to bringing forward cases and striking off companies likely to be impacted by this change in rules ahead of the 29th February deadline for the ESC C16 enactment process.