The purpose of this article is to explain the correct process for landlords to transfer existing properties into an LLP, and some of the main advantages of doing so.
A Beneficial Interest Transfer Agreement “B.I.T.A” serves to legally document the transfer of beneficial interest in property(ies) held by one or more individuals into a Limited Liability Partnership “LLP”.
The Agreement will show the following for each property to be held ‘on-trust’ for the LLP:-
The value of the equity introduced by each member will be reflected in their individual opening capital account balances.
LLP’s are tax transparent, so there are no CGT or Stamp Duty implications unless the ownership structure is amended disproportionately to the opening capital account balances.
Legal ownership and contracts between borrower(s) and mortgage lender(s) remains unchanged.
The members of the partnership are holding the properties ‘on-trust’ for the LLP.
Members of an LLP may continue to make finance applications against LLP properties held in their own names, but any net proceeds of refinancing belong to the LLP or are otherwise treated as ‘drawings’ from the members capital account.
Members will receive an income/profit share proportionate to their capital account balance. However, disproportionate allocation of profit may be achieved by allocating certain members a ‘partners salary’ in recognition of the work they do, which could be disproportionate to their income/profit share. For example, a new member may contribute little or no equity but take on a significant share of the management of the business.
Each members profit is taxed as self-employed income. If that income exceeds £5,965 per annum they will be compelled to pay Class 2 National Insurance at £2.85 per week. However, Class 4 National Insurance is only payable if the business also engages in a trade. Property Investment alone is not a trade but is a business. As members are technically self-employed the LLP does not pay employers National Insurance, even on ‘partners salaries’
This structure is particularly advantageous where a group of individuals and/or companies wish to group together to form one business, perhaps in order to share resources, risks, experience and availability of time. There are other advantages too, as follows:-
Legacy Planning – Case Study
A family of four pool their rental property resources and experience to form an LLP. For the purposes of this exercise we will assume the members are Mum, Dad, Son and Daughter. The opening capital account balances might result in an income/profit share of 40% each to Mum and Dad and 10% each to Son and Daughter, based on the amount of equity each of them introduced into the LLP.
Now let’s assume that the ‘taxable profits’ of the business are £200,000.
Ordinarily, Mum and Dad would receive £80,000 each. As of 6th April 2019 the first £12,500 would fall within their nil rate band, the next £37,500 would fall into the 20% basic rate tax band and remaining £30,000 would be subject to higher rate tax and also trigger further tax based on the restrictions on finance cost relief to the basic rate of tax. Son and Daughter then each receive profit allocation of £20,000 each.
However, given that Son and daughter do most of the work it is agreed that Mum and Dad will allocate each of them a ‘partners salary’ of £37,500. The remaining £125,000 of profits are then allocated in accordance with profit share. In other words, Mum and Dad each receive their 40% of £125,000 which equates to £50,000 each and Son and Daughter each receive their further 10% of £125,000 which equates to £12,500 each. The outcome is that none of them are higher rate tax-payers because they all have a taxable income of £50,000. This also means they become unaffected by the restrictions on finance cost relief.
Taking this a stage further, it could also be agreed that Mum and Dad may take drawings from the business which exceeds their profit share. This is perfectly acceptable because they are withdrawing their own capital. This would result in their capital account balances reducing in value, which also reduces their IHT liability. On the other hand, the capital accounts of Son and Daughter would increase in value, on the basis that they are retaining profits they do not withdraw from the business.
There are three main reasons for adding one or more corporate members to an LLP. These are:-
It is important to note that corporate members of an LLP cannot receive ‘partners salaries’ or profit share which is disproportionate to their ordinary income/profit share based on the value of their partnership capital account. This would fall foul of HMRC’s “Transfer of Income Streams” legislation [LINK]. This is why Property118 Limited advocates extreme caution when considering what is being touted as the ‘Hybrid Scheme’ which claims to be a ‘one-size-fits-all’ tax planning solution [LINK]. However, corporate members may charge a ‘reasonable commercial fee’ for activities they perform on behalf of all members. For example, this might include property management or maintenance. The “Transfer of Income Streams” legislation only poses a problem where the tax system is abused, e.g. where a corporate member charges significantly more for a service than could be sourced elsewhere in the market locally. Where this is the case, the excess is taxed as if the income had never been transferred and interest and penalties on overdue tax may also apply if the tax system has been abused.
Tax Advantages of having a corporate member to provide services to the LLP
Unlike individuals, which pay income tax based on a banded tax basis, Limited Companies pay a flat rate of corporation tax (currently 19% and scheduled to reduce to 17%). Where the individual members of an LLP wish to retain profits, perhaps to save for deposits for further investments or to pay down partnership mortgages, having a corporate members allows them to do so without paying the higher rates of personal tax on those retained profits. Similarly, the individual members may wish to reduce their ‘taxable income’ for tax purposes.
Other advantages of an LLP
Individual landlords may not qualify as a business in their own rights for the purposes of claiming incorporation relief [LINK]. However, as a result of the pooling their resources, by forming an LLP, their eligibility for incorporation reliefs eventually becomes unquestionable. Likewise, when a ‘whole business’ is transferred into a Limited Company by a partnership, there is relief available to mitigate the Stamp Duty Land Tax “SDLT” [LINK], or Land and Buildings Transaction Tax “LBTT” where properties are located in Scotland [LINK].
As you might expect, HMRC has anti-avoidance provisions to ensure the tax system isn’t abused by landlords who might form LLP’s simply to avoid tax at the point of incorporation. Those provisions are known as “GAAR”(General Anti Abuse Rules). In Scotland, the word “Abuse” is replaced with Avoidance in GAAR. By way of example of the way GAAR affects SDLT relief in England, Section 75a of the Finance Act 2003 explains that claims for relief on Stamp Duty may be ignored if a partnership claims the relief within three years of formation.
Where ‘taxable rental profits’ and other taxable income from all sources combined exceeds an average of £50,000 per owner it is often the case that a Limited Company is a more tax advantageous structure than an LLP. However, an LLP is often used as a ‘stepping-stone’ strategy where a partnership doesn’t already exist. This is especially the case where mortgage debt is significantly less than the original acquisition costs of the property portfolio as a whole, because there is then a further opportunity to consider Capital Account Restructuring as part of the tax planning process. Furthermore, Limited Companies also provide additional Inheritance Tax “IHT” planning opportunities in the form of Freezer Shares to cap the value of shares for the older generation and to accrue future growth in share value for the younger generation of the family.
Another benefit of the LLP structure is that it is a separate legal entity, much like a Limited company. Therefore, it cannot be argued that a Limited Liability Partnership is not a business, even if there is only one property.
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Bob and his brother Richard own six rental properties in a Limited Company, another six in joint ownership and three each in their sole names. Richard owns another three properties jointly with his two sons, two jointly with his wife and another jointly with his mother. Bob owns two further properties with each of his daughters, another two jointly with his father and four more jointly with his wife.
In total that’s 10 individuals across three generations of one family, plus a limited company, owning 34 properties between them.
As of April 2019, between the 10 individuals they can receive £500,000 of taxable income before they become higher rate tax-payers. However, the current basis of ownership doesn’t allow for profits to be allocated in that way.
The problem is that Bob and Richard have taxable income well into the higher rate tax bracket whilst the others have plenty of ‘headroom’ as basic rate tax-payers. This means that Bob and Richard are paying 40% tax on a proportion of their rental income and are also suffering the phased impact of finance cost relief for individual landlords.
All of the family members decide to pool their resources by forming a Limited Liability Partnership “LLP”.
Each of them starts with a positive capital account balance, which is the value of their net equity in their properties (i.e. value minus mortgage balance).
They then agree to “allocate” profits disproportionately to ownership. This doesn’t affect what each of them withdraw from the business, but it does affect their tax position to the extent that none of them will be pushed into the higher rate tax band, even after the restrictions on finance cost relief are fully phased in.
One of the most powerful tax planning opportunities associated with partnership is the ability for the partners to agree to allocate profits disproportionately to ownership, and to take drawings out of the business disproportionately to profit allocation.
Bob and Richard agree to allocate far less of the partnership profit to themselves than they had previously taken. However, they continued to withdraw the same amount as they had always done to this business. Over a period of time this results in the value of their capital accounts decreasing in value – which is good news for IHT purposes and its also good news for them because they pay less tax. They are now unaffected by Section 24.
To balance this, the youngest generation do exactly the opposite. Their profit allocation is significantly higher than they would have previously taken, but still within the basic rate tax band. Their drawings from the business were much lower though, save for the increased amount of tax they now pay on the higher amount of allocated profits. This results in the younger generations capital accounts growing in value by the amount of profit they are retaining in their capital accounts.
The family are all happy with this because:-
This structure works particularly well for families who own rental properties in a variety of combinations, and particularly when their incomes fall into different tax bands.
The costs of forming such partnerships are relatively low too. This is because LLP’s are tax transparent. This means that Members of the partnership can hold assets ‘on-trust’ for the partnership. This flexibility goes some way to explain why most Solicitors practices these days are LLP’s. Also, it isn’t possible for more than four partners to be registered legal owners or on a mortgage deed either.
So what about CGT, Stamp Duty and refinancing when the properties are transferred into the LLP?
This is another beautiful quirk of the LLP structure. Because they are tax transparent, and members can hold properties ‘on-trust’ for the LLP, there is no need to transfer the ownership. Therefore, there is no conveyancing, no need to refinance and no CGT or Stamp Duty to pay because the ownership of the assets never actually needs to be transferred.
The costs associated with taking proper legal advice and having all the correct documentation professionally drafted to set up up arrangements like this are much less than you might think too. Quotes we have obtained from Cotswold Barristers range from £4,995 to £9,995 + VAT, depending on the number of partners/members and properties involved.
The starting point is a consultation with a consultant from Property118 Limited, which is priced at a fixed fee of £400 inclusive of VAT and comes with a guarantee of total satisfaction or a full refund.