Incorporating means creating a company and having this new company of which you are the shareholder buy the existing unincorporated business from yourself. If the value of your business is say £100,000 you will make a capital gain of £100,000 and your company will have a goodwill of £100,000 on its balance sheet (assuming there are no fixed assets). Either the company pays you right away or most probably it credits the director's loan account allowing you to draw funds as they become available in the business. But why is it a good thing?
- You make a capital gain of £100,000 but the tax you will pay is just 10% of the gain minus the annual allowance (£11,000 for 2014-15) thanks to the entrepreneur's relief.
- The company now has a director's loan of £100,000 that you can draw at your convenience. If you draw more than £32,000 in dividends per year, it's a savings of 25% on dividend tax that you would have to pay upon distribution.
- But also, because goodwill amortisation is an allowable expense for the business (if you started your Sole Trader business after April 1st 2002), it will generate over the amortisation period (typically 5 to 10 years) a savings of £20,000 (20% corporation tax of the goodwill).
- When someone transfers his Sole Trader business to a Limited Company of which he is a substantial shareholder, the parties are treated as "related parties" and the transfer must be at market value. HMRC recommends that you ask them to carry out a valuation check by submitting form CG34 but it can take for ever to get an answer and when you get the answer you might find that their methodology is very different from yours...
- While the tax savings is significant, you still need to pay the capital gain now compared to the dividend tax or corporation tax in the future. If you don't have the cash it's a problem! It might be worth it to borrow money. But you don't have to. You can also claim incorporation tax relief under Taxation of Chargeable Gains Act (TCGA 1992 s162) in which case the capital gain is postponed until the next exit. You lose the tax savings but it's still an option.
MAJOR UPDATE DEC 2014: With effect from 3 December 2014 those tax savings are gone. Where goodwill is transferred to a close company and the transferor is related to the company the goodwill will not be treated as a relevant business asset. This means no relief is available for the amortisation. Additionally, entrepreneur's relief will not be available on the disposal of the goodwill or other intangibles on incorporation where the transferor or any associates have shares in the company. The gain on disposal of the goodwill will be taxed at the normal CGT rates of 18% or 28%.
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