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Where Taxpayers and Advisers Meet

Director loans to freehold company

Joined:Tue Apr 09, 2024 2:44 pm
Director loans to freehold company

Postby spk » Tue Apr 09, 2024 2:54 pm

I am one of four Directors of a company limited by guarantee that is the vehicle being used by the majority of leaseholders of a block of flats collectively to purchase the freehold. Most of the leaseholders have contributed their (equal) share of the purchase price but four have not. Opting-in leaseholders get new 999 year leases with zero ground rent and will become members of the company in return for their contributions. Opting-out leaseholders will continue to pay ground rent to the company; their leases have c. 100 years left on them.

We had an investor lined up to plug the shortfall but that investor has dropped out, leaving us to find an alternative funding solution. Some of the Directors are willing to provide the additional funds and this seems the best - and possibly only - way to complete the purchase. There is more than one potential method for the introduction of Director's funding and it is important at this point that we understand the implications - particularly (but not necessarily exclusively) in terms of tax.

The solution we are proposing is this -
1. Participating Directors will contribute the necessary funds by way of Directors' Loans to the company. Interest to be paid on these loans at 5%
2. The company will then buy the freehold outright.
3. The company will receive income from the 4 x opted-out flats in the form of ground rent and, ultimately, lease extension premiums. When a lease is extended, liability for further ground rent will cease.
4. This combined income will be used to pay down the Directors' Loans as quickly as possible.
5. The company will have no other income, and no costs other than DLA interest and necessary admin expenses.
6. If there is any excess income left over from ground rent and lease extension premiums, this will be contributed to the Service Charge fund.

The company's objectives as specified in the Articles of Association are - in essence - to acquire, hold, maintain, manage and administer the property for the benefit of its Members, all of whom are leaseholders. The articles prohibit it from distributing profits to Members. It was created with the intention of being almost entirely passive but this is changing out of necessity due to the funding shortfall and implications thereof.

We have the following questions regarding the tax implications -

1) Is the ground rent income revenue for the company, and therefore liable to corporation tax at standard CT rates, once costs including DLA interest are deducted?
2) Ditto lease extension premiums. If an opted-out leaseholder pays for a lease extension is this taxable revenue?
3) Does it make any difference if this payment when extending a lease represents company membership as well as simply a lease extension premium?
4) Is corporation tax payable on the entirety of the lease extension receipts, or on the difference between what the company paid for the freehold share and the lease extension receipts? In other words, can the company's expenditure buying the freehold be offset against the lease extension receipts in order to reduce the corporation tax?

Thanks in advance.

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