After a lengthy consultation period the Finance Bill 2011 finally introduced measures intended to simplify the Substantial Shareholding Exemption (‘SSE’) and the de-grouping charges arising on, typically, the sale of a group company.
Our initial view was an unqualified welcome. The new measures appeared, as intended, to allow the structuring of many transactions to be simplified but also opened up planning opportunities. Trading groups were, it seemed, now able to dispose of a trade by hiving it down into a newly formed subsidiary, sell the subsidiary with the benefit of the SSE (without the usual requirement to hold the shares for 12 months) and avoid all de-grouping charges. Under this planning the purchaser also benefited from acquiring a rebased asset.
We recently experienced for the first time the effects of the new legislation in practice when advising on these planning opportunities for a trading group considering the disposal of various trading divisions of the business. In carrying out this work we became acutely aware of the complexities that may arise in any planning to take advantage of the new measures: this in large part due to the absence of equivalent simplification changes to other parts of the tax code, and in particular the intangible asset regime.
The client advised had a trade commencing prior to 2002 and new trades acquired since that date. In considering a hive-down of those trades to be sold consideration had to be given to whether intangibles, including goodwill, were “old intangibles” (falling within the capital gains tax rules and benefiting from the simplifications) or “new intangibles” (falling in the intangibles regime and for which a de-grouping charge remains relevant). This was not easy and it was only at this point that the relevant valuations could be considered in order to compute the potential de-grouping charge arising under the intangible rules. It now became clear that it is going to be absolutely essential that companies have detailed records, and are fully aware of the nature and valuation, of their intangible assets before considering any hive down preparatory to a sale.
Having encountered the effect of the changes in practice we would now qualify our initial welcome with our frustration that HMRC did not take the opportunity to introduce similar simplification to the intangible asset (and loan relationship) regime! By limiting the changes to assets within the chargeable gains rules the full benefit of the intended simplification has not been achieved. Admittedly, HMRC did identify in their consultation that this was a potential issue for future simplification but why then did they not act, especially as the introduction of this legislation was considered for such a long time.
Happily our client will benefit both from the SSE and escape any de-grouping charges as all assets transferred fell within the capital gains regime. However, simplification across all the relevant de-grouping charges (joined up thinking) would have avoided the time, cost (and stress) of having to consider de-grouping charges at all.
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