ER and goodwill: avoidance?

The Autumn Statement contains proposals to deny both Corporation Tax relief and Entrepreneurs’ Relief on the sale of goodwill to a connected company.

The more one thinks about it, the odder such a provision seems. It remains OK to claim ER on selling goodwill to an unconnected company, or on selling other assets (real property, for example) to a connected company. So what’s special about goodwill?

We suspect that the truth may be that HMRC may be concerned that too many taxpayers may have been over-egging the pudding by selling goodwill at inflated figures which HMRC do not have the resources to contest: and that the simple (not to say simplistic) solution is to deny the relief altogether. As HMRC becomes more and more “resource-constrained” (what we used to call short-staffed) we think we are likely to see more and more of these “rough justice” measures.

It’s also worth adding a note on the old Cleary case (44 TC 399). This was the case in which taxpayers sold their shares in Company A (which they owned) to Company B (which they also owned) for full market value. Any normal person would have assumed that that gave rise to a capital gain, as indeed it would have done if they had sold any other capital asset. But no: HMRC contended (and the court agreed) that this was a “transaction in securities” susceptible to challenge under what is now s698 such that the entire proceeds (not just the gain) were taxable as income. Ouch.

The Autumn Statement proposal is not that drastic: it “only” denies ER and leaves the gain taxable at normal CGT rates. But since that is likely to create a charge at 28% (compared with a maximum rate of 30.55% for a dividend), selling goodwill for cash or loan on incorporation will seldom be attractive. We think there may be more tax-efficient alternatives: but none is wholly without risk.

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David Whiscombe


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