Company Secretary and Entrepreneurs' Relief

[Milbo]

Just one to throw out there and I'm sure(ish) that the answer will be yes.

Given that there is no longer a legal requirement for a company to appoint a company secretary, can we still rely on that post to be treated as an 'office' for the purposes of Entrepreneurs' Relief?

To quote ESM2503:

The following are examples of posts which are or may be offices
•company director and company secretary

Don't you just hate it when 'may be' is inserted into the HMRC Manuals!

Both items of legislation were relevant from April 2008 so I don't really envisage any future problems but your comments would be appreciated.

Mark

[section 44]

Are you concerned because you envisage a company secretary that is neither an officer nor an employee?

[Milbo]

My question was posed because the appointment of a company secretary is no longer a legal requirement and may be open to challenge. So Section 44, I think the answer to your question is probably yes.

Many small companies used to appoint the spouse as a company secretary to keep them out of the SA regime but to also ensure that they qualify for the CGT reliefs available. Would it now be better to appoint the spouse as a director?

[Incredulum]

An office is a post created by charter or statute or any other similar document*, where the office endures even if the office holder leaves and is replaced by another.

*i.e. pretty much any internal document.

[maths]

Given that there is no longer a legal requirement for a company to appoint a company secretary, can we still rely on that post to be treated as an 'office' for the purposes of Entrepreneurs' Relief?

Yes.

For ER purposes the definition is that contained in ITEPA 2003 s 4 which remains post the CA 2006 changes.