Entrepreneurs’ Relief: trading company and holding company of a trading group - applications for a ruling on the status of a company
Legislative amendments were made by FA2016 in relation to disposals of assets made on or after 18 March 2015. The meaning of the terms “trading company” and “trading group” were changed in relation to the sale of shares or securities by an individual (TCGA92/S169I(6) and TCGA92/S169I(7A)) and disposals of shares by a trust (TCGA92/S169J(4)).
For uses within TCGA92/Part 5 Chapter 3 where Sch7ZA does not apply, and disposals of assets before 18 March 2015, the following guidance applies.
Pre-18 March 2015
If a person wants to establish whether a company in which they held shares or securities was a qualifying company for Entrepreneurs’ Relief purposes while the shares or securities were held, that person should, in the first instance, seek advice from the company. The company will usually be able to confirm if its activities were such that it was a trading company (or the holding company of a trading group) so that it could have been a qualifying company so far as that individual was concerned. In this period, activities of a joint venture company are attributed *pro rata *to the company which holds its shares.
The responsibility for ascertaining the status (for Entrepreneurs’ Relief purposes) of shares held in a company referred to in a self-assessment tax return rests with the individual shareholder making the disposal. They will need to take a view and make their self- assessment return on this basis. Where appropriate the white space on the return may be used to comment on any communication with the company and its impact on the claim.
The company itself may have genuine doubt or difficulty as to its trading status. There is no statutory clearance procedure under which companies can have their status confirmed. However in such circumstances a company can seek from HMRC an opinion under the terms of the Other Non-Statutory Clearance service as to its trading status for the purpose of a shareholders Entrepreneurs’ relief claim. But in order to maintain confidentiality the Officer dealing with the company’s tax affairs will not be able to correspond directly with individual shareholders.
A non-statutory clearance is written confirmation of HMRC’s view of the application of tax law to a specific transaction or event where there is genuine uncertainty as to how the legislation applies in the company’s circumstances. Any application should contain the information in the checklist in the Other Non-Statutory Clearance Guidance (HMRC website).
The status of a company or group is a question of fact which may alter as the balance of their activities change, so it will not be possible to confirm a company’s status for future periods. Because of the inherent difficulty in giving a view based on uncertain information, in some cases those involved may prefer to wait until all the relevant facts are known before approaching HMRC.
You should offer your opinion whenever this is practicable and, if this differs from the company’s view, explain the reasons for that difference. Having expressed your opinion you should not then enter into any further correspondence on the matter. Any dispute should be resolved through the process of an enquiry into a return or claim. See Regina v CIR ex parte Bishopp (on behalf of PWC) and Allan (on behalf of E&Y) 72TC322.
Post-17 March 2015
For disposals made on or after 18 March 2015, the same process applies except that whether activities of a joint venture company are treated as activities of the investing company or group, or whether activities carried on in partnership are all necessarily treated as non-trading activities, depends on the level of direct and indirect ownership by the individual of the joint venture companies or the assets, profits and voting rights of the partnership (see CG64055).
In these circumstances, if the company applies to HMRC for confirmation of its trading company status, it will need to provide details of the individual’s interests in the company along with the details of activities it carries on itself (whether trading or non-trading) and details of activities carried on by its joint venture companies and partnerships of which it is a partner or member.
As HMRC is unable to correspond with the shareholders in such circumstances, we are unable to discuss the information provided about individuals and any response to the company will be based on the information provided. As with any other Non-Statutory Clearance, if the information provided is incorrect, the clearance cannot be relied upon.
Although this applies to disposals on or after 18 March 2015, if the relevant period being considered ends before that date, such as where there has been a cessation of trade before that date, then the process in relation to pre-18 March 2015 should be followed.