Fair Rents (Scotland) Bill or Artificial state manipulation of free market rent?10:34 AM, 6th November 2020
About 4 weeks ago 36
In a nutshell; my wife and I own a trading company which produces profits of circa £200,000 a year. The company pays corporation tax on these profits. We each draw a salary of £12,500 (which is tax free) based on advice from our accountants. We then declare £37,500 each of dividends, on which we pay dividend tax of a further 7.5%.
Profits have been constant at this level for many years, which has resulted in us accumulating in excess of £500,000 of cash within the company.
We have now decided we would like to invest this cash into building a portfolio of rental properties, to plan for our retirement and to eventually leave a legacy for our children.
We cannot find a buy-to-let lender willing to lend to a trading company. Even if we could, I’m not certain we would want to amalgamate the very different risk exposure of both businesses, which I suspect is also the angle the buy-to-let mortgage lenders are coming from.
If we take the money out of our trading company to invest into property we will have to pay dividend tax of 32.5% each on the next £50,000 a year. If we take more than £50,000 we also start to lose our nil rate band tax allowances. If we take more than £150,000 then we will pay dividend tax of 38.1%.
Our rental property business will be taxed on a fictitious level of rental profits, because we cannot treat finance costs as expenses in the same way as every other UK business can.
The fictitious level of rental profits we will be taxed on will result in our taxable incomes exceeding £100,000 a year, even if the property rental business makes losses in real terms in the first few years. The effects of this also takes us into the territory whereby we start losing our nil rate band tax allowances.
When we die and leave everything to our children, the net value of our estate, including any capital appreciation in the properties we have invested into, will be taxed yet again at 40% in the form of Inheritance Tax!
Is there a better way? Surely there must be? !!!
Do not despair, there are solutions to every one of the challenges you have correctly identified. Please book a tax planning consultation with us so that we can tailor a bespoke plan for your needs.Show Form To Book A Tax Planning Consultation
The following is a very simplistic overview of some potential solutions:-
Associated IHT and legacy planning
The shares in the Holding Company could be split into two share classes.
You would hold the dividend and voting rights in the A shares. It would be these shares which would be exchanged for shares in the trading company.
A second class of B shares would have no immediate capital value other than their face value of say £100. Neither would these B shares have any automatic dividend or voting rights.
The B shares could then be transferred into a Discretionary Trust for the benefit of your children.
After doing this, the A share value of the holding company could be frozen using a Freezer Shares structure.
The company rules could be amended to attribute all future growth in share values to the B shares (Growth Shares).
When you die, it would only be the A shares which would form part of your estate for IHT purposes. This is because the B shares would sit outside of your estate, within the Discretionary Trust. Accordingly, the capital appreciation within your property portfolio would not be factored into the value of your estate for IT purposes. Likewise for any capital appreciation in the value of your trading company shares.
Protecting your legacy for your bloodline only
A formal ‘letter of wishes’, provides rules for trustees of a Discretionary Trust to follow. This can be drafted in such a way so as to ensure that only your nominated beneficiaries and their bloodline can benefit from the trust. Also, and very importantly, the value of the trust is only ever distributed in the form of loans to beneficiaries, repayable on their death. These loans, whilst they are outstanding, also accrue interest at 2% per annum so that the value of assets keeps pace with the Bank of England annual inflation targets.
A practical example
One of your beneficiaries gets married and wants to buy a house. The trustees agree to make a loan of say £500,000 to help with this. Your beneficiary and spouse then have children. However, after a few years the couple decide to get divorced. The spouse wants half of the value of the house, which the Courts may well agree should be the case, but the debt to the trust, plus accrued interest, needs to be factored into the settlement figure. Accordingly, the entitlement of the divorcing spouse is significantly reduced.
Years later the beneficiary dies and his/her assets are valued for probate purposes. Yet again, the debt to the trust needs to be factored into the net value of the estate, not forgetting the accrued interest of course. This serves as financial salvation to your bloodline!
The above is not to be constituted as professional advice.
In all cases such as this, we defer to our Legal Counsel, Mark Smith at Cotswold Barristers to amend as necessary and adopt our suggestions as his own professional advice, which is then covered by his £2,500,000 professional indemnity insurance with Bar Mutual.
The fees for all fully insured personal advice and legal work to implement a structure of this nature are typically less than the first years savings on Dividend Tax (assuming £100,000 of dividends being used for reinvestment into PropCo in year one).Show Form To Book A Tax Planning Consultation
Landlord Tax Planning Consultancy is the core business activity of Property118 Limited (in association with Cotswold Barristers).
Professional advice from a qualified Barrister-At-Law, insured up to £2,500,000 per claim.
There will never be an optimal ‘one-size-fits-all’ business structure for tax purposes. The presentation below provides a useful overview of some of the options you might like to discuss with us.
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