Why do you need to transfer assets from a sole trader to a limited company?Changing to a limited company is also called ‘incorporating a business’. It basically means you are turning your sole proprietorship into a company that is formally recognised by your state of incorporation. By incorporating a company you turn it into its own legal business entity and it is clearly set apart from the individuals who founded the business. That is the key phrase: set apart.
Better credibilityThrough this structure transfer, the owner, or owners, of the business create a separate legal entity that will conduct business and be responsible for actions made in its name. This new limited liability company (LLC) (also called a business entity corporation) changes how the business is viewed and treated through the eyes of the law. On the soft benefits side, it gives the business and brand more gravitas and credibility with the marketplace, with vendors, and with talent pools.
Limiting your personal liabilityThe biggest benefit is linked to that phrase ‘set apart’ because, by incorporating your business, you are limiting your personal liability. As an entrepreneur, you will have invested a lot of precious capital into your startup, from launch to teething problems and the general running of the business. You would have been personally liable for debts, litigious actions, and all losses that occurred along the way. Now that you are incorporating the business, you can expect to mostly only be liable for the capital amount that you have personally invested. As you are no longer the trading legal entity, your personal assets cannot be easily used to satisfy the debts and litigious actions against your business! This is one of the reasons why you need to make a clear separation of personal assets and business assets. Learn more about the differences between a sole trader business and a limited company in our article ‘What’s the difference between a sole trader and a limited company’ Read on to learn the steps you need to take to start the asset transfer to your new limited company.
What is an asset?An asset is described in tax and finance literature as a property of any nature. It can be movable or immovable, and it can be corporeal or incorporeal. The definition excludes currency but it includes any coin made mainly of gold or platinum. The definition includes a right or an interest of any nature to or in the abovementioned property.
Goodwill as an assetIf your sole trader company has goodwill, it is generally expected that you will transfer the goodwill to the newly incorporated company during this business structure transfer phase. Once you have decided to do that, the next step is to evaluate it before the transfer. This is where the much-referred-to accountant will be beneficial. If you have never considered your business’s goodwill value, nor have previously recorded it on the business balance sheet, it does not mean it doesn’t exist. There are instances wherein some businesses will not be able to assign a value to their goodwill:
- If your business has been closely linked to a property. An example of this scenario would be that of a hotel, a frail care home, or playschool/kindergarten. In this instance, the goodwill may be considered part of the building as you might not be able to sell the business without the building. The goodwill, therefore, cannot be separated from the property.
- If your business has been intricately linked to the expertise of an individual. An example of this scenario would be that of a personal service company, an actor/musician, a hairdresser, or a makeup artist business. The goodwill will most likely be attached to the specific person rather than the business.
Disposal of an assetWith the transfer of an asset, there will be a “disposal” at market value to calculate capital gains tax (CGT). A “disposal” is explained in tax and finance literature as an asset-related event that triggers the liability for capital gains tax. It is any event, act, forbearance or operation of law that has the outcome of an asset being created, changed, transferred, becoming extinct, being distributed by a company to a shareholder, or the sale or donation of the ownership of an asset. That is a very broad net so assets must be dealt with carefully. However, don’t panic about the gains from that ‘disposal’. You might be able to holdover those gains:
- Under TCGA 1992, s162 – you might have heard this being referred to as incorporation relief. It is activated when the act of a transfer of any business occurs. It does, however, require the transfer of the WHOLE business (excluding some debts by concession);
- Under TCGA 1992, s165 – you might have heard this being referred to as a holdover relief where there is a trading business.
Transferring land & property assetsNow that we have dealt with goodwill let us look at a tangible asset. If you have a property that is used in the business, you will most likely want to transfer it to the new limited liability company. As always, discuss this with your accountant to ascertain if this is the best strategic decision. The legislation relating to this states the following:
- There will be a disposal with a market value transaction for CGT purposes:
- Stamp Duty Land tax (SDLT) purposes will be calculated on the market value transaction.
Investment land & property assets that are not a trade propertyThe disposal transaction that will occur for the purposes of CGT will be a market value transaction even though this investment property is not a trade property. If it has sufficient factors to qualify it as a business, then refer to TCGA 1992, s162, for incorporation relief availability. If the property is a United Kingdom residential property, the CGT rate is at 28%. The disposal of the property will take place at market value for Stamp Duty Land tax (SDLT) purposes unless it is undergoing a transfer from a partnership or LLP. In the circumstances of the property being a residential property, then:
- It is likely that an additional 3% rate will apply to the transaction;
- Multiple properties may attract Multiple Dwellings Relief;
- 6 or more properties will require you to choose one to apply the non-residential rates to; and
- If these are market-term leased properties with unconnected third party tenants, or the property is less than £500k in value, then the 15% super rate for corporate acquisitions is not applicable.
- If the property is less than £500k in value or if the property is let to an unconnected third party (on market terms), then the Annual Tax on Enveloped Dwellings (ATED) should not apply either.
Transferring plant & machinery assetsIf the assets have not gone up in value, there are usually no CGT implications as the profits and losses will be dealt with through capital allowances. The plant and machinery assets can be sold to the company for any value up to the market value, and there will be a balancing charge/allowance resulting from this. Even if you decide to transfer the plant and machinery assets to the company at nil value, it will be deemed, by tax law, that they have been transferred to the company at market value. As the sole proprietor/trader and, therefore, as the transferor, you can jointly elect with the company to treat the assets as though they were transferred at Tax Written Down Value (TWDV) for tax purposes. TWDV of an asset is the expenditure remaining after capital allowances have been claimed. If the disposal value of the asset is less than the TWDV, then a balancing allowance can be claimed as a final deduction for that asset.
Stock & work in progress assetsThese are obvious transfers that occur when transferring assets from a sole trader to a limited company as it needs to continue to operate and trade as seamlessly as possible. As you would expect, they will be transferred across to the new company at market value and will generate a trading profit or loss for the original business. If they are sold at a discount, then they can be treated as being sold at the higher of:
- Cost; and
- The agreed price
Debtors & creditors as assetsAny audited, outstanding debt will be transferred to the new, incorporated company at the book value. It often occurs that debtors fail to update their creditor banking details timeously. Hence, as the proprietor, you will usually continue to receive some payments after the transfer cut-off accounting date. These are then adjusted through your business loan account. Debtors are not always transferred to the new company. In such scenarios, your (the proprietor’s) capital account is to reflect this. You will carry the risk and will get to keep the receipts that occur. You will also carry the responsibility of having to settle these personally.
Cash in the bank as an assetCash is generally not transferred to the company, but if it needs cash, it would be far more efficient for you, as the proprietor, to lend this cash to the business. You can then draw down on this loan tax paid.
Vat issues relating to the transfer of a businessThe HMRC website covers this topic extensively; however, here are the main extracts. The transfer of a business into a new structure will be seen as a ‘transfer of a business as a going concern’ (TOGC): “Normally the sale of the assets of a VAT-registered business, or a business required to be VAT registered, will be subject to VAT at the appropriate rate. But if you sell assets as part of a business, which is a going concern then, subject to certain conditions, no supply takes place for VAT purposes and no VAT is chargeable.” Remember that dealing with the VAT aspect is obligatory, not a choice. Establish from the outset whether the sale is a TOGC regardless of whether your sale of assets would otherwise be treated as exempt or zero-rated. These are the conditions listed on the HMRC website to confirm whether a TOGC is applicable. ALL of these need to be met in order for TOGC for VAT purposes to apply:
- The assets, such as stock-in-trade, machinery, goodwill, premises, and fixtures and fittings, must be sold as part of the TOGC.
- The buyer must intend to use the assets in carrying on the same kind of business as the seller – this does not need to be identical to that of the seller, but the buyer must be in possession of a business rather than simply a set of assets.
- Where a seller is a taxable person, the buyer must be a taxable person already or become one as the result of the transfer.
- In respect of land or buildings which would be standard-rated if it were supplied, the buyer must notify HMRC that they have opted to tax the land by the relevant date, and must notify the seller that their option has not been disapplied by the same date.
- Where only part of the business is sold it must be capable of operating separately.
- There must not be a series of immediately consecutive transfers of the business.
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