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Capital Gains Manual

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Deferred consideration: shares and securities: TCGA92/S138A does not apply: example

TCGA92/S138A

In this example the conditions for an earn-out right being treated as a security by TCGA92/S138A are not met - the deferred consideration could be satisfied either in shares or in cash. The right cannot be treated as a security even though the deferred consideration is actually satisfied in shares. The possibility of the receipt of cash means that the right is not an ‘earn-out right’ - TCGA92/S138A (1)(d).

Illustrative indexation factors have been provided for the purposes of this example only. Indexation allowance does not apply to Capital Gains Tax disposals from 2008-09.

  • In year 0 the taxpayer acquires all the shares in T Ltd for £100,000.
  • In year 10 the taxpayer sells all the shares in T Ltd at arm’s length to P Ltd.

The consideration is

  1. cash 500,000, plus
  2. 80,000 shares in P Ltd at market value of £2.25 each (total £180,000), plus
  3. the right to two payments of future consideration, the amount depending on future profits of T Ltd, to be satisfied either by the issue of shares in P Ltd, or in cash if P Ltd so decides. The market value of the right to deferred consideration at the time of disposal is agreed by Shares and Assets Valuation at £300,000.

The further consideration is paid in the form of shares. In year 11 shares in P Ltd to the value of £202,940 (73,000 shares at £2.78 each) are issued to the vendor in part satisfaction of the right to deferred consideration. The market value of the remainder of the right at year 11 is agreed by Shares and Assets Valuation at £90,000.

In year 12 shares in P Ltd to the value of £118,440 (47,000 shares at £2.52 each) are issued in full satisfaction of the remainder of the right to deferred consideration.

P Ltd is a quoted company. But the conditions for the earn-out right to be treated as a security by TCGA92/S138A are not met.

COMPUTATIONS

A) IMMEDIATE CHARGEABLE GAIN

Cash consideration plus value of right to receive deferred payments (£500,000 + £300,000)

Consideration     £800,000
       
       
Less apportioned cost      
       
Cost x Cash + ‘right’  
    -–-–-–-–-–-–-–-–-–-—  
    Cash + ‘right’ + shares  
       
£100,000 x £800,000  
    -–-–-–-–-–-–-–-–-–-– £81,633
    £800,000 + £180,000  
      -–-–-–-—
Unindexed gain     £718,367
Less indexation £81,633 x 0.250 £20,409    
      -–-–-–-—
Chargeable gain year 10     £697,958

B) COST OF SHARES IN P LTD

Cost £100,000 - £81,633 £18,367 at year 0
   
   
Indexed rise to year 10  
£18,367 x 0.250 £4,592
  -–-–-—-
Indexed pool of expenditure £22,959
  -–-–-—-

This is the base cost and indexed pool of expenditure relating to the 80,000 shares in P Ltd acquired in year 10.

C) COMPUTATIONS WHEN DEFERRED CONSIDERATION RECEIVED

PART DISPOSALS OF RIGHT TO DEFERRED CONSIDERATION

Year 11 - consideration received      
       
(value of 73,000 shares in P Ltd)     £202,940
       
Apportioned cost      
       
£300,000 x £202,940  
  -–-–-–-–-–-–-–-– £207,831  
  £202,940 + £90,000    
      -–-–-–-—
Allowable loss     (£4,891)

From 30 November 1993, indexation is prevented from creating or increasing an allowable loss, see CG17700+.

Year 12 - consideration received  
   
(value of 47,000 shares in P Ltd) £118,440
Less cost £300,000 - £207,831 £92,169
  -–-–-–-—
Unindexed gain £26,271
Less indexation £92,169 x 0.051  
(indexation year 10 to year 12) £4,701
  -–-–-–-—
Chargeable gain year 12 £21,570
  -–-–-–-—

D) SHARES IN P LTD

P Ltd Shareholding   No of Qualifying Indexed pool of
         
    Shares Expenditure Expenditure
As at year 10        
(see computations at B)   80,000 £18,367 £22,959
Indexed rise to year 11        
£22,959 x 0.025       £574
        -–-–-—-
        £23,533
Acquired year 11 on part disposal        
of right (see computations at C)   73,000 £202,940 £202,940
    -–-–-– -–-–-–-— -–-–-–-—
Pool at year 11   153,000 £221,307 £226,473
Indexed rise to year 12        
£226,473 x 0.025       £5,662
        -–-–-–-—
        £232,125
Acquired year 12 on final disposal        
of right (see computations at C)   47,000 £118,440 £118,440
    -–-–-—- -–-–-–-— -–-–-–-—
Pool at October 1993   200,000 £339,747 £350,575
    -–-–-—- -–-–-–-— -–-–-–-—

EXPLANATION

The existence of a cash alternative in the sale agreement means that the right falls outside the terms of TCGA92/S138A. This applies whether or not shares are actually received in satisfaction of the right.

  1. IMMEDIATE CHARGEABLE GAIN

There is an immediate chargeable gain on both the cash element and the value of the right to receive deferred unascertainable consideration.

  1. COST OF SHARES IN P LTD

The normal rules of TCGA92/S135 apply to the immediate issue of shares in P Ltd in exchange for shares in T Ltd.

  1. COMPUTATIONS WHEN DEFERRED CONSIDERATION RECEIVED

Even though the deferred consideration is actually received in shares TCGA92/S138A does not apply.

A chargeable gain or allowable loss is calculated for the part disposal of the right to receive deferred unascertainable consideration. As TCGA92/S138A does not apply the `right’ is not treated as a notional security and there is no exchange of securities.

  1. SHARES IN P LTD

All of the acquired shares go into the same pool of shares. The 80,000 shares acquired in year 10 have their base cost (and indexation) calculated in accordance with the normal rules of TCGA92/S135. The shares to which TCGA92/S138A did not apply go into the pool at market value at the date of acquisition.