In this article on Partnership Tax, we will take a look at some of the latest developments in practical tax matters relating to Partnerships.
Incorporation of a Business within an LLP
The increased usage of LLPs as business vehicles has raised thoughts over how a business owned by an LLP could be transferred to a company.
Routes for incorporation must be carefully considered and options include transferring the business of the LLP to the company or transfer of the members’ interests to the company. Generally commentators opinion is that HMRC are indifferent to the structure utilised but the incorporation relief rules regarding CGT must be reviewed thoroughly in the planning phase.
Also solicitors should be consulted to make sure implementation is carried out properly.
Key tests for the relief from capital gains tax include whether a business is being operated and whether the whole business is transferred.
The Tribunal Case of Elizabeth Ramsey looked at whether a property portfolio could be a business. The Tribunal Judges held that in her case, it wasn’t a business, but there is some doubt as to whether this decision was appropriate. It isn’t binding given that it was a Tribunal case.
SDLT on Incorporation
It is thought that there could be an interpretation of the current rules where SDLT is avoided on the transfer of a property as part of a business from a partnership to a limited company. Such an interpretation may be in contravention to HMRC’s view and specific written advice should be obtained.
Certainly conversation to a partnership business from a sole trader and then incorporation could be caught by anti-avoidance rules.
Consideration of the introduction of a company into a partnership of natural persons is still a consideration in terms of allowing a structure that works commercially for a business.
If commercial reasons dictate that a company would be a useful partner then tax savings might be achieved, especially as we are still to have a highest rate of income tax of 45% + 2% NI.
It is important to note that the introduction of a company needs bespoke consideration and could cause difficulties in terms of partnership succession, unless a careful plan is set out. There are a number of different options under which a company could interact with a partnership.