Can I claim Entrepreneur’s Relief if my Company Invests?

Having the option to claim Entrepreneur’s Relief is an amazing deal. As a limited company owner, you can either sell your shares or close down your company and pay only a flat 10% capital gains tax on your business assets. That’s quite low compared to a 40% tax when taking a salary (higher rate taxpayer) or a 33.75%-39.35% tax when taking income as dividends.

If you’ve been a reader of the blog you know how much I like the limited company investing route for multiple reasons. Your trading company generates profits whilst your investment company invests some of it. So I get asked these questions a lot:

1. Will investing my trading company profits risk my ability to claim Entrepreneur’s Relief?
2. Should I claim Entrepreneur’s Relief or invest through a limited company?
3. Can I really claim Entrepreneur’s Relief?

All very valid questions if your company is sitting on a large pile of cash earning nothing. I’ll to try to answer these questions in this post.

Disclaimer: Entrepreneur’s Relief is a complex topic. Nothing contained in this website should be construed as tax advice. Always seek professional advice before proceeding. Information can change anytime. Foxy Monkey is not liable for any of your losses resulting from acting or not acting upon the information contained in this article.

With the disclaimers out of the way, let’s go!

Entrepreneur's Relief is now called Business Asset Disposal Relief as per HMRC but I'll keep calling it ER

Rules for claiming Entrepreneur’s Relief

First of all, let’s check whether you can claim Entrepreneur’s Relief in the first place. There are some obvious and some less obvious rules that make you (in)eligible. I’m going to explore what it takes to claim ER, what to consider and what to look out for before doing that.

Individuals

A quick rule of thumb is that you should own your company or at least have a decent stake in it. Here are the geeky details:

To qualify for relief, both of the following must apply for at least 2 years up to the date you sell your business:

• you’re a sole trader or business partner
• you’ve owned the business for at least 2 years

And for at least 2 years before you sell your shares, the business must be a ‘personal company’.

• You own at least 5% of shares and voting rights
• You’re entitled to at least 5% of profits and assets upon winding up or the disposal proceeds if the company is sold

So overall, yeah you should own your company. So far so good.

That’s about you, as an individual. What about the company?

Companies

The company’s main activities must be in trading (rather than non-trading activities like investment) – or it’s the holding company of a trading group.
OR
If the company stops being a trading company, you can still qualify for relief if you sell your shares within 3 years.
Source: HMRC

So to sum up, your company must be trading. Investing is not trading and does not qualify for entrepreneur’s relief. Only your trading company activity does.

If your company is only investing then it does not qualify for Entrepreneur’s Relief.

These are the obvious rules. They are pretty clear, assuming you understand what constitutes a ‘trading’ company. And this is where things get tricky.

Can I claim Entrepreneur’s Relief if my company invests in stocks and property?

To answer this question we first have to understand what makes a company a ‘trading’ company for the purposes of Entrepreneur’s Relief.

Being able to generate more than the measly 0.1% of bank interest definitely helps. But will this risk your ‘trading’ company status and as a result your entitlement to Entrepreneur’s Relief?

Most companies and groups will have some activities that are not trading activities (for example, bank interest on cash).

Having investments or earnings not related to your main ‘trade’ makes the income non-trading. But how much of a non-trading income risks the entire company trading status?

For example, if you generate £100 annual interest from your cash reserves this doesn’t sound like much. But what if half of your yearly earnings come from property loans when you’re selling ice-cubes? Then you would lose your ability to claim Entrepreneur’s Relief.

The legislation provides that such companies and groups still count as trading if their activities “… do not include to a substantial extent activities other than trading activities”. But what does “Substantial” mean?  Substantial in this context means more than 20%. See HMRC manual.

You cannot claim Entrepreneur’s Relief if:

• More than 20% of your company income comes from non-trading activities (for example, investing)
• The value of the company’s non-trading assets is substantial compared to its total assets
• If more than 20% of the expenses or time spent is on non-trading activities

Failing one of the above doesn’t necessarily mean that you fail the ER test. HMRC says there should be a balance and you should look at the company ‘in the round’.

Besides, it becomes a bit trickier to calculate the assets of some companies. For example, a ‘trading’ asset of a software company could be its goodwill and branding, calculated as a multiple of its EBIDTA. That’s in favour of us being able to claim Entrepreneur’s Relief.

All things considered, if you are serious about investing your LTD company profits in stocks, buy-to-let etc, then either:

1. Claim Entrepreneur’s Relief now (or in a few years if you plan to exit) and then invest the proceeds
   OR
2. Invest the profits through a second limited company while your trading company focuses on its main trade

Option #1 is straightforward and gives you the highest chance of succeeding in claiming ER. But option #1 means that you won’t be able to invest anything until you close your company, so that’s a bummer. That’s why most people look at option #2 instead.

Option #2 is when you’d lend the money to your second company and invest it there. The 2nd option is riskier in terms of ER, but it’s better than investing straight from your trading company. But even when investing through a different limited company (or a holding company) you’re not completely out of the woods. Read on.

But isn’t a loan to another company itself an investment?

Opening a 2nd company means your trading company won’t be investing directly in other assets. But it will have a loan on its balance sheet. Isn’t that an investment risking the company’s ‘trading’ status?

That’s a fair question.

Answer: It’s a loan to a close company and not an investment like a Government Bond in that it’s a closed arrangement. Unlike Government or another entity making an open offer from one to many investors to participate. A “close company” or “connected company” under HMRC definition is a company jointly under control of common shareholder.  It is a non-arms length loan (although interest rate put in place to make it arms length, between connected companies.).

It’s different from an investment for a coupon or return offered for bond or corporate loan offer made by an unconnected company to 1 or many investors – in that it’s a closed arrangement.

Of course, having a loan is riskier than holding cash for the purposes of a non-trading asset of the trading company. But it’s much better than holding investments directly for the purposes of qualifying for Entrepreneur’s Relief. There are no clear-cut HMRC rules on that and losing the Entrepreneur’s Relief status is always a risk, even if you hold cash. HMRC has muddled the waters with its new rules in Finance Act 2016 (see below).

If by this point you’re all fed up and asking for an accountant, I don’t blame you! But it’s good to know how things work, especially if we’re talking 6 figures+.

The Entrepreneur’s Relief Process

Companies with more than £25,000 in assets can usually close the company by doing a Members Voluntary Liquidation. That’s a formal process for closing down your company or ‘liquidating’ it. The big benefit is that the company assets are taxed as Capital Gains, not as Income.

This means a higher-rate taxpayer will only pay a 20% tax which is much lower that 40-45% of income tax or 32.5-38.1% dividend tax.

It is a slightly more expensive process because it involves an insolvency liquidation practitioner. The practitioner performs checks that your company doesn’t have debts and oversees the process among other things. But overall, the fact that you’re only taxed 10-20% of CGT certainly makes it very lucrative.

And here’s where Entrepreneur’s Relief comes in. You can lower your tax rate and pay a flat 10% CGT if you’re entitled to it.

You claim Entrepreneur’s Relief on your self-assessment return.

The entire MVL process above assumes you have not fallen foul of the new 2016 legislation: Target Anti-Avoidance Rules (TAAR) and Moneyboxing.

Target Anti-Avoidance Rules (TAAR)

HMRC says if you’re winding up your company and then just open a similar one to benefit from the tax-advantage you are in trouble. That’s also called ‘phoenixism’. You should have paid yourself using dividends and pay the relevant tax instead. That makes sense if you ask me.

Moneyboxing

Moneyboxing is where a company is deemed to be holding excessive profits within the business in order to gain a tax advantage when the company is eventually closed through an MVL in the future.

So even holding a lot of cash can be a threat to claiming Entrepreneur’s Relief.

I’ll repeat that because it’s important.

Holding “excessive” cash in your company poses a threat to your Entrepreneur’s Relief status.

But what does ‘excessive’ mean? Different companies have different working capital requirements. I don’t understand how you can restrict how conservative I want to be with my business funds, especially in this fragile economy we live in.

By not specifying any rules around that, this legislations is open to interpretation. And that’s not a good thing.

If you’re closing your company via MVL and fall foul of the moneyboxing legislation, then you’ll be paying tax as income not as capital gains on your company profits. A big hit.

So having lots of cash in your trading company is a threat to MVL and Entrepreneur’s Relief. That’s regardless of whether you invest the money or not. By not distributing your money, you are keeping it on the company’s balance sheet. Regardless of whether you invest or not, the moneyboxing rules can still negatively affect your ER status.

You can never be 100% sure with Entrepreneur’s Relief since there are no clear-cut rules. HMRC have given themselves wide powers under TAAR and the Finance Bill of 2016. Therefore, if you are concerned about Entrepreneur’s Relief and your future status, it’s always safer to claim it now while you can and while it is still on the table by HMRC!

The ER, in particular, is a fairly new thing (post-2008) which keeps changing. It had a £10m lifetime limit and this has been drastically reduced to £1m in 2019.

So can I claim Entrepreneur’s Relief if my company invests in stocks and property?

If you invest less than 20% of net assets then yes, you can. But if you want to invest bigger amounts it would be better to open a separate company to do that. However, the rules around money-boxing and your trading company not losing its ‘trading’ status will still apply. So not completely out of the woods, sorry.

Let’s have a look at two examples to check how Entrepreneur’s Relief applies to them.

Example #1 – IT Contractor Entrepreneur’s Relief

Say you are an IT contractor and generate £100k per year net profit. The business is effectively you, providing your services to clients through your LTD company. Every year, you extract £50k for your living costs and invest the other half (£50k) through a separate investment company.

After 10 years, you’ve had enough and want to close your company. You return the money from your investment company to your trading company and follow the Members Voluntary Liquidation route. Can you claim Entrepreneur’s Relief?

If the value of the trading company is just in its cash balance, and you’re winding up balance sheets, you’re basically scraping cash out. And this is what this company is doing.

Generally speaking, if you’re lending a 20-25% of your balance sheet and you’re dabbling with investments for a few years then you should be ok. When moneyboxing becomes an issue is when you’re doing this in a big way for a few years, then move all the money back and collapse the structure. If we’re talking about big amounts, like the £500k over 10 years above, then HMRC have the powers under moneyboxing to question your Entrepreneur’s Relief.

Obviously, this is a very controversial area and there are not many cases around to look at. I have seen people claiming ER on £400k cash before. In my opinion, it’s not for HMRC to decide how much a business owner should pay themselves every year. But clearly, it’s something HMRC have introduced a few years ago to combat tax avoidance. And they can question your move.

In the past, ER was much more valuable. You could claim up to £10m, whereas now it’s reduced down to £1m. So you had companies claiming ER on £5-10m at rates of 10%!

Which is why if you’re doing it in a big way, and that’s clearly the way you’re going it’s better to open a holding company, the advantages of which are out of the scope of this article (see the company investing academy for more).

However, all things considered, investing your trading company profits through a separate company is better than investing it directly through your trading company for Entrepreneur’s Relief purposes.

Example #2 – SaaS company claiming ER

You run a software business where a lot of the value is in intellectual property and forward earnings. Say your trading company provides a consulting service and at the same time you’ve built a successful software-as-a-service product.

With £100k as a business net profit every year, you take home £50k to live and you’re left with £50k in the business. Every year, you invest £30k through another company and spend £20k to build your SaaS product. After 10 years, say someone is willing to buy your company for £1.5m. Even though your SaaS product has not brought any income yet, it clearly has a lot of potential.

So if we look at the company again,  the balance sheet looks like this:

• £300k in cash (assuming zero interest for simplicity)
• £200k in your fixed asset, your Saas product valued as all the costs and time spent on it
• £1m of goodwill / forward earnings

Clearly, you’re in a much better position in terms of claiming Entrepreneur’s Relief despite having invested most of of your company remains every single year.

Entrepreneur’s Relief is a relief, and should not be taken for granted. The rules around it change all the time. But even if entrepreneur’s relief was unavailable, you’d still be able to only pay a 20% capital gains tax through the MVL process. Not that bad!

The investor’s dilemma following an Entrepreneur’s Relief claim

Say you’ve successfully claimed Entrepreneur’s Relief and paid a flat 10% capital gains tax on your company’s £330,000 stash.

Congratulations, your personal wealth is now £300,000 bigger. Assuming you don’t want to let inflation erode your money, you’re thinking of investing it. After having sipped a few Caribbean cocktails that is.

The following problem arises: Where do you tax-shelter £300k?

Suddenly, a £20k ISA allowance looks stunningly small. A £40k pension contribution is an option, but

a) you would’ve put it in a SIPP anyway before claiming ER to save on corporation tax
b) you may have a company pension as PAYE which really limits your ability to start contributing a lot
c) you may be close to reaching your pension’s lifetime target allowance

The new problem, albeit not a first-world one, is that you cannot easily invest your new stash without paying high taxes on the gains. If you invest in liquid assets, like shares, bonds and gold ETFs, you could, I guess play the tax-gain harvesting trick. That’ll use up your annual £12,300 CGT allowance. But I hear stock is running low on this one. And it’s quite a hassle to keep track of your taxes outside ISAs.

Investing in Buy-to-Let? That’s definitely another route. But taxes when investing on a personal level are very high since the government decided to heavily tax the landlords. Remember the recent adverse property tax changes on property. All finance costs, including the interest on your mortgage, can no longer count as an expense. No relief on fees when taking out or repaying mortgages or loans.

You can only get a basic tax relief of 20% (compared to 100% previously!). That’s really sad and landlords have taken a big hit on their profits when using a mortgage. As if that’s not enough, the rental income pushes you into the higher rate tax threshold so your next property or any work income, for that matter, will be taxed higher.

Hence the question again: Where do you tax-shelter £300k?

An option some wealthy families take is investing through a limited company. This is quite a sensible approach as you’d be only paying corporation tax on the profits. Companies don’t pay capital gains taxes or income tax, only corporation tax.

Come the time you want to pay yourself you’d need to pay income tax in on salary/dividends. But note: You can take your initial capital out of the company without paying any tax at all.

Another reason I like this approach is that HMRC is less likely to attack LTD companies compared to individuals and smaller players. I’m not saying that’s good or bad, I’m just saying what I think is likely to be the case. Limited companies operating or investing are less likely to be taxed higher compared to the personal investor. They could, of course, increase the corporation tax (which is on track to being lowered for a while). But again, even if they do, you can take your share capital out of the company without paying any tax at all.

Why am I saying all these? To prove that even if you claim Entrepreneur’s relief and go down that route, if the goal is investment income, you could’ve saved yourself some time, money and hassle by not doing it at all.

You can either open a second limited company (separate one or a holding co) and at least save the 10% tax in the first place. Obviously, this doesn’t apply if you want to use the money in the short-term. ER is an amazing tool to do that. But for an annual passive income type of living like the one I’m after, the limited company investing route without claiming ER is also a viable option.

Bottom line

Claim Entrepreneur’s Relief if you’re too worried about losing it. Claim it ASAP as tax rules are probably getting worse on this one. Perhaps take some dividends too to avoid falling foul of money boxing or owning “non-trading” assets. Postponing it will only make it riskier.

But claiming ER brings you with higher taxes, not only because of paying the 10% upfront but mainly because you will not be able to shelter your investments from high taxes as an LTD company can. For this reason, it’s worth considering either

1. Claiming ER and then investing the taxed money through a limited company, or
2. Not claiming at all in the first place and instead start investing your company profits

If you need the money, say for kids’ education, Four Season Maldives and whatnot, there’s no question about it. You need to take it out and spend it. But if you’re thinking about investing it, then not claiming Entrepreneur’s Relief is a valid option too 🙂.

Besides, not all is bad.

You can still qualify for Entrepreneur’s Relief if you sell your shares within 3 years of when your company stops being a trading company. Even if you don’t qualify for ER, you can liquidate your company using Members Voluntary Liquidation (MVL) and pay a 20% CGT on your profits. That’s just 10% higher than claiming ER. And again, you always have the option to claim ER right now, make the money yours and then start a new investing company with this money which you can withdraw from the company tax-free later on.

Happy Investing!

If you know someone who’s thinking about claiming Entrepreneur’s Relief send them this article. I hope they will find it useful. And thanks!

It’s very important to seek professional advice before proceeding. Information can change anytime and I am not liable for any of your losses resulting from acting or not acting upon the information contained in this article.