Entrepreneurs could be caught out by capital gains tax loophole

So how did businesses take advantage of the 10% rate of capital gain tax payable on the selling of a business after the 5th April this year? Linda Bennett of LK Bennett shoes and the potato farmer behind Tyrells Crisps had a neat trick. They effectively "sold" their businesses to a trust otherwise known as warehousing. Capital gains tax rules judge the date of disposal as being when an unconditional contract is entered into, not when a deal is completed. The unconditional agreement was to sell the business to a trust contingent on finding a third party buyer. As such, this crystallised any gain so as to be liable for the 10% rate with a view to disposing of the business by the trust later in the year.

So what is the problem? The difficulty could come where the company that is warehoused is no longer able or willing to be sold. In this case the Inland Revenue may consider that you have sold a company to your trust and then effectively bought it back by tearing up the unconditional sale agreement. This would mean that you may face a large tax bill without the proceeds to pay it. Now that would be bad news.

The Inland revenue has always maintained that advance clearance or approval may be given to any sort of tax avoidance measure including company sales. As such it could be that if anyone had any doubts they should have consulted the revenue first. If the economy becomes more fragile and many potential sales fall through then entrepreneurs will also be out of pocket on stamp duty and legal fees.

However, it is unlikely that in practice the inland revenue would try and force this issue and demand payment of tax when no real benefit or proceeds have been realised. But the Inland revenue are not generally considered to be very generous so it is important to be vigilant.

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