Entrepreneurs and management equity

The Chancellor’s aim of backing business and enterprise is to be delivered primarily through cutting entrepreneurial tax rates and introducing targeted tax incentives. However, this is accompanied by some tax-raising measures, including a new limit on Employee Shareholder Shares and, as announced in the Autumn Statement, higher rates of tax on dividends.

In addition to a further reduction in the rate of corporation tax, the other surprise announcement of the Budget which will please entrepreneurs is the reduction in the main rates of capital gains tax (CGT).

The main rate will fall to 20 per cent (from 28 per cent) for higher/additional rate taxpayers, and to 10 per cent for basic-rate taxpayers. Unlike the reductions in corporation tax – which will be phased in over this Parliament – this reduction is effective from 6 April 2016, so the benefits should be felt almost immediately.

Not everyone will be able to benefit from this, with the old rates continuing to apply to residential property (specifically, second homes and buy-to-let property) and carried interest. In addition to continuing to be taxed at 28 per cent, the Government is proceeding with the proposal to tax some ‘carry’ as income (at rates of up to 45 per cent); this applies to carried interest calculated by reference to assets held for less than three years.

Entrepreneurs’ relief will be extended in the following respects:

• Creation of “investors’ relief”: currently entrepreneurs’ relief is only available to those who carry on a trade, or are employees (including directors) of a trading company/group. The Chancellor has proposed extending entrepreneurs’ relief to certain investors to create “investors’ relief”; ie, individuals who acquire newly issued shares in an unlisted company provided they hold the shares for at least three years. As with the existing relief, there is a £10 million lifetime cap. This new exemption will apply to shares issued on or after 17 March 2016, although the three year holding requirement means that it will only apply to disposals on or after 6 April 2019;
• Disposals of privately-held assets: relief will be allowed for associated disposals of privately-held assets when business assets are transferred to a family member (for example, as part of succession planning);
• Shares held through corporate vehicles: relief will also be available for individuals who hold their shares in a trading company via a separate company, provided that their interest in the underlying trading company is at least 5 per cent; and
• Trading partnerships: relief will be reinstated for individuals who hold shares in a corporate member of a trading partnership. As for individuals who hold shares through a separate company, such shareholders will have to demonstrate that they hold at least 5 per cent of the underlying trade.

Investors’ relief will be introduced as described above. All of the other changes will be backdated to 18 March 2015. This is to unwind some of the consequences of the restrictions to this relief which were imposed in 2015 (to counter perceived abuses, including the use of so-called ‘manco’ structures).

Employee Shareholder Shares

One of the Chancellor’s previous innovations was to introduce a CGT exemption for employees (including directors) who gave up certain employment rights in return for ‘free’ shares worth at least £2,000.

Although there is a limit (£50,000) on the value of shares which can be provided in this form, this limit is based on the value of the shares when they are issued. This has the potential to be a very valuable relief for shares which appreciate significantly in value.

The Government is concerned about misuse of the regime, and has announced a £100,000 lifetime limit on the amount of gains which are eligible for this exemption. Details of how this limit will apply are awaited, but the announcement does confirm that the limit will not apply to shares which were awarded pursuant to an Employee Shareholder Agreement entered into before March 16, 2016. As such, and unusually, the lifetime limit is relevant to new arrangements only.

Dividend Taxation

Some entrepreneurs who carry on their business through a company will be worse off as a result of the changes to dividend taxation which were announced in the Autumn Statement; in effect a 7.5 per cent increase in the rate of tax on dividends in excess of the (new) £5,000 exemption. Those who might consider using loans to extract value instead will, if the company is ‘close’, face a similarly higher rate of tax in respect of those loans because the ‘loan to participator’ charge is also being increased from 25 per cent to 32.5 per cent from April 6, 2016.

It is interesting to consider the different rates of CGT which will apply to assets held by entrepreneurs. Leaving aside the £11,100 annual capital gains exemption, from April 6, 2016 the main rates will be as follows:

Increasing the differential between the rates of income tax and CGT will further enhance the incentive to receive capital gains rather than dividends, salary/bonuses or other forms of income. However, those tempted to participate in arrangements to convert income into capital should be aware of the many rules which restrict this, which (as announced in the Autumn Statement) will include changes to the ‘transactions in securities’ legislation and the new targeted anti-avoidance rule. There also remains continued uncertainty as to the scope of the revised DOTAS hallmarks and the extent to which they might apply to such arrangements, so as to require early disclosure to HM Revenue and Customs.