Inheritance Tax: Sums due to/from the Company
Sums due from the company
Because sums due from a company do not qualify for business relief, you should check for the existence of sums due to the deceased. If sums due to the deceased have been disclosed, you should check that information against the position disclosed in the accounts. If you are writing to the taxpayer/agent, you should check that the sum disclosed as due to the estate is the finally ascertained amount.
If no sums are shown (on the compliance spreadsheet) as being due to the deceased, but it is clear or possible on the basis of the accounts that an amount is due to the estate, you should either ascertain the precise facts from the taxpayer/agents or (if you have no other reason to write to them) report the position to the IHT caseworker, so that he/she can pursue the matter.
As soon as you become aware of precise details of sums due to a deceased, you should report the facts to the IHT caseworker. If you are still ascertaining the precise facts, you should keep the IHT caseworker informed of the position at a case conference. Sometimes it may be claimed that the market value of a sum due to the deceased from a company is less than its face value. Such claims should always be dealt with by a valuer.
As stated in Chapter 19 of the IHT Manual at IHTM19000, the value for tax of a debt payable on demand should normally be its face value. Most directors’ loans to companies are made as a result of informal arrangements and so would be repayable on demand. If there are (unusually) special terms regarding repayment, payment of interest etc, you should ascertain all the facts and ask for copies of the document(s) evidencing the terms of the loan.
The usual argument for a debt having a value below face value is not because of any special terms regarding repayment but on the grounds that, because of its financial position, the company is unable to repay the debt wholly or in part. The debt should be valued on normal open market lines in accordance with s.160 Inheritance Taxes Act 1984 (what would someone pay to stand in the creditor’s shoes?). You should also bear in mind s.166 IHTA 1984. This provides that, “In determining the value of a right to receive a sum due under any obligation, it shall be assumed that the obligation will be duly discharged, except if or to the extent that recovery of the sum is impossible or not reasonably practicable and has not become so by an act or omission of the person to whom the sum is due.” The section puts the burden of proof on the person who alleges that a debt is worth less than its face value.
In considering the value of debts which are claimed to have a value less than their face value, you should take into account the following:-
- the burden of proof is on those who claim that the debt is worth less than face value;
- Debts due to deceased shareholders have to be valued on normal open market lines in accordance with s.160 IHTA 1984. What is the value of the right to stand in the creditor’s shoes?
- just because a company is making losses does not mean that a debt to a deceased person is worth less than face value - the company might have substantial assets out of which it could pay the debt;
- if the company can meet the liability out of its existing assets or out of its trading income, the debt is likely to be worth face value. It will have a value below its face value only if it cannot be repaid at all or there will be a delay in repayment;
- there may be no reason why the company could not borrow money on commercial terms to repay the debt;
- Just because a company’s shares have a nil value (for example because of losses combined with an overall net deficit on assets) does not necessarily mean that a debt due to the deceased would have a nil value. If the company did go into liquidation, the deceased would rank as an ordinary creditor (assuming the debt was not secured) and would thus rank equally with other ordinary creditors for the purpose of any distributions by the liquidator.
Sums due to the company
Sums due to the company from a deceased shareholder, for example on loan account, should be dealt with in a similar way. If you are writing to the taxpayer/agents, you should take up the question of the amount outstanding (and advise the IHT caseworker accordingly). If you are not writing to the taxpayer/agents, you should nonetheless consider the amount shown in the light of information available on file and comment as appropriate to the IHT caseworker.
|Additional Guidance: SVM150000|