Salaried Member: Condition C: When to apply the test?
ITTOIA/S863D(3) and (4)
Condition C has to be determined:
- at 6 April 2014 or, if later, when M becomes a member; and
- after that, at the beginning of each tax year.
In addition, the test needs to be re-determined whenever:
- there is a change in the contribution, or
- there is, otherwise, a change in circumstances that might affect whether or not Condition C is met.
In practice, where Condition C is not met, assuming all other circumstances remain the same, an increase in the contribution will not require a re-test as, clearly, Condition C will continue not to be met.
This example shows a change in circumstances which requires Condition C to be re-determined.
*MJ is a member of the SSS LLP at 6 April 2014. At that date, MJ is expected to receive a Disguised Salary of £100,000 in the 2014/15 tax year. *
MJ’s capital contribution at that date is £30,000, which is at least 25% of his Disguised Salary. Therefore, Condition C is not met.
*On 1 October 2014, MJ’s remuneration arrangements are amended so that his Disguised Salary for the tax year will now be expected to be £125,000. The change was not expected prior to this date. *
The new arrangement represents circumstances affecting the question of whether or not Condition C is satisfied. As a result the test needs to be re-determined on 1 October 2014. Condition C will now be met as MJ’s capital contribution is less that 25% of his Disguised Salary.
In addition to the general rule, there are some additional rules which take priority over the general rule and apply:
- when a member joins or is expected to leave part way through the year (see ESM63025);
- in order to prevent flipping between Salaried Member (employee) and partner status, when there is an increase in the capital contribution (see ESM63030); and
- when a member provides an undertaking to make a capital contribution within a specified period (see ESM63045).