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Where Taxpayers and Advisers Meet
Difficult as ABC
11/12/2018, by BKL, Tax News - Business Tax
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David Whiscombe of BKL warns that the Budget 2018 Entrepreneurs' Relief changes could have implications for so-called alphabet shares that many OMB or family company owners may not yet appreciate.

Alphabet Shares

The Finance Bill effects the intention, announced on Budget Day, to alter the definition of a “personal company” for Entrepreneurs’ Relief (“ER”) purposes.  The new rules will require a claimant, with effect from 29 October 2018, not only to possess at least 5% of the ordinary share capital and voting rights in the company but also to be beneficially entitled to at least 5% of profits available for distribution to equity holders of the company and of assets available for distribution in a winding-up of the company.

The problem is that many companies have share structures involving a number of classes of ordinary share (often styled A, B, C etc shares – hence “alphabet shares”) which rank equally in all respects save that dividends may be voted unequally across the classes.  This has given valuable flexibility in distributing profits, especially in “quasi partnership” companies.  Arguably, however, where the proportion of the total dividend paid that is allocated to any particular share class is completely discretionary (and thus could be anything from nothing to 100%) it is difficult to see how the holder of the share is entitled to any percentage at all of “profits available for distribution”.  This would seem to be the case even if as a matter of fact a shareholder has always received at least 5% of amounts distributed.

A related problem may arise where a class of share (typically a class issued to a venture capitalist or other outside investor) has a priority right to a dividend, or to a first slice of assets in a winding-up, or both.  In such a case, although a holder of other ordinary shares may be beneficially entitled to more than 5% of what is left, that may not be 5% of the total either of profits or of assets available for distribution in a winding-up.

In many cases, it will be possible to revise the company’s Articles so as to amend share rights and restore the company’s qualifying status.  But, crucially, it won’t be restored retrospectively.  And the problem is made worse by the lengthening of the ER “qualifying period” from one year to two.  Thus, if as a result of the new rules a company ceased to be your “qualifying company” on 29 October and remedial action needs to be taken, any disposal made within the two years after its qualifying status is restored will not qualify for relief.

About The Author

BKL is a business name of Berg Kaprow Lewis LLP, Chartered Accountants and Tax Advisers, a limited liability partnership registered in England and Wales.

The information in this article is intended for guidance only. It is based upon our understanding of current legislation and is correct at the time of publication. No liability is accepted by Berg Kaprow Lewis LLP for actions taken in reliance upon the information given and it is recommended that appropriate professional advice should be taken.

BKL
35 Ballards Lane
London
N3 1XW
(T) 020 8922 9222 
(W) www.bkl.co.uk

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