Advantages and dis-advantages of incorporation

The following are some of the advantages and disadvantages:

 

Advantages of incorporation

a. No restriction on your tax deduction for Finance Charges, so the owner(s) of a business with substantial borrowings could save significant sums of tax on income.

In fact, the UK’s rate of Corporation Tax is reducing. It was 20% last financial year, is 19% from 1.4.2017, and will be just 17% from FY beginning 1.4.2020.

So, the difference in tax payable on profits could be as much as 28% (45%-17%) in the future.

However, that level of saving can only be achieved to the extent that profits are not going to be withdrawn from the company. If you are likely to need to withdraw cash from the company (e.g, to live on), you will have to factor in additional personal tax payable on the distributions.

b. If the company sells a property it will benefit from ‘indexation allowance’, whereas individuals do not. If gains made are reasonably large this may be worth more than the CGT annual exemption (currently £11,100) which is received by individuals but not by companies.

c. A company ordinarily pays Capital Gains Tax (CGT) at the Corporation Tax rate (see a. above), which is lower than the 28% CGT rate applicable to  individuals who pay tax at the higher rate, but broadly equivalent to the 18% CGT rate payable by basic rate tax payers.

Once again that saving can only be achieved to the extent that profits are not going to be withdrawn from the company. If you are likely to withdraw the proceeds from the company instead of reinvesting it, you will have to factor in additional personal tax payable on the distributions.

 

Disadvantages of incorporation

a. Capital Gains Tax (CGT) - If your properties have increased in value since you acquired them, transferring them into a company will ordinarily give rise to a capital gains tax liability, even though you don’t actually receive any cash in the process.

This outcome can be avoided if you are in ‘business’ for the purposes of ‘incorporation relief’, but until recently HMRC have routinely denied that a property rental business could ever be a ‘business’ in this context.

Since Ramsay v HMRC [2013], they have had to revise that view in circumstances where the requisite level of ‘business activity’ can be demonstrated. However, relief is by no means a foregone conclusion and it is therefore essential to get expert advice before incorporating.

It is possible to apply for ‘informal clearance’ from HMRC, but costs will be incurred in doing so, and there is no guarantee of a favourable opinion. Ultimately, the matter may have to be decided by a Tribunal

b. Refinancing - You will need to establish if your lender is prepared to allow the proposed new company to take on the debt attached to your portfolio. If you have to refinance, rather than novate your loans, it may affect the availability of ‘incorporation relief’ so that a Capital Gains tax liability is crystallised.

There will also be various professional fees to consider, and your interest rates may increase.

c. Stamp Duty Land Tax (SDLT) - A transfer of properties by an individual to a company will give rise to an SDLT charge, but a transfer of properties from a partnership to a company may not.

If a genuine partnership exists it would be best practice to formalise it by way of a partnership agreement before transfer, but forming a partnership immediately prior to incorporation simply to eliminate the SDLT charge does not work and simple co-ownership does not qualify as a partnership in this context.

If SDLT is payable it may be possible to claim relief on transfers of multiple properties.

The SDLT liability on a property portfolio can be significant so once again you need expert advice.

d. A double charge to tax on sale of a property at a gain and subsequent withdrawal of profit - Corporation tax is payable on the gain, and income tax is payable in addition of the profits are extracted.

e. Estate planning - If your estate is liable for Inheritance Tax (IHT), broadly the same amount of IHT will be due whether your rental properties are owned personally or by a limited company you own.

However, incorporation could leave your beneficiaries with a very significantly lower inheritance if they decide to sell off part of the portfolio after they inherit.

 

Example:

Landlord A owns a ‘buy to let’ portfolio worth £1m. The portfolio is not held in a limited company. Landlord A’s Will leaves the portfolio to his son by means of a ‘tax bearing specific legacy’ and IHT is due at 40% on the full value of the portfolio.

The son pays the tax and takes possession of the whole portfolio, then immediately sells half the portfolio to realise £500k cash which he uses to buys a holiday home that he and his wife have set their heart on. There is no Capital Gain on the sale of the properties because his tax deductible cost is the  value of the portfolio as at the date of death from proceeds, and there has been no increase in the value of the properties since that date (Proceeds £500k – costs £500k =  No Capital Gain = No Capital Gain Tax).

The net benefit of the father’s £1m legacy is therefore £600,000. (500K in the remaining property portfolio + £500k invested in the holiday home - £400k IHT paid).

Landlord B also owns a ‘buy to let’ portfolio worth £1m, but his portfolio is held in a limited company. Landlord B’s Will also leaves the shares in the company to his son by means of a ‘tax bearing specific legacy’ and IHT is due at 40% on the full value of the shares (which equates to the value of the portfolio the company owns). The son pays the tax and takes possession of the company and its property portfolio. So far, Landlord A and Landlord B’s legacies appear to have achieved pretty much the same result. The IHT paid in both cases is £400k, and the son now controls the properties.

However, Landlord B’s son also needs to sell half the properties so that he can the extract some cash from the company and buy a holiday home that he and his wife have set their heart on.

The son’s first surprise is to discover that the company will have Capital Gain Tax to pay on the sale. This is because the company’s CGT ‘base cost’ is not the value of the portfolio as at the date of death. Instead, it is the original cost of the portfolio + an inflationary allowance since his father incorporated the business a couple of years ago (to try and minimise his Income Tax bills). The total cost available for offset against the proceeds of £500k (half the portfolio) works out at just £150k, so the company has made a Capital Gain of £350k, and has tax of £70,000 to pay (at current CT rates). The son then draws the remaining cash of £430,000 from the company and discovers that this lands him with an additional Income Tax bill of £163,830 (£430,000@38.1%). After tax he is left with £266,170 of the £500,000 proceeds, and finds he can’t afford the new holiday home.

The net benefit of the father’s legacy is therefore just £370,689 (£500k remaining property portfolio + £270689 cash from the company - £400k IHT paid), or £229,311 less than Landlord A achieved. And that outcome could be made even worse if the son decides to sell off some of the company’s portfolio!

 

f. Significant professional fees will be incurred in incorporating a rental property business (e.g, accountants, tax advisers, bankers, lawyers), and ongoing accountancy fees for a company once it is set up are also more expensive in most cases.

g. More changes to come? - If you are prepared to contemplate dealing with all of the above hurdles, it may (exceptionally) be worthwhile considering incorporation of your property business, but before you do so you might wish to consider the possibility of further new legislation which could undo any advantage you may gain. New legislation could make companies subject to the same finance charge restrictions as unincorporated businesses (there is no logic in allowing companies to remain unaffected by the new finance charge restrictions?).

The government has encouraged incorporation in the past only to then change legislation to remove the advantages – e.g, you may remember the special 10% CT rate and the CT Nil rate band, introduced between 2000 and 2005, which encouraged many small businesses to incorporate and incur extra costs in doing so, only to see the standard CT rate re-instated shortly afterwards.

It wouldn’t be the first time businesses have rushed to incorporate only to have to unwind things when the law subsequently changes, and that would be even messier and more expensive than incorporation!

In the vast majority of case, we are able to offer a solution that is simpler, cheaper, and better than transferring your investment properties into a limited company.

 

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