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Most noticeably, the body recommends Investor Relief to be scrapped and that Business Asset Disposal Relief (formerly Entrepreneur’s relief) could be overhauled to a more retirement-only relief. If these recommendations are implemented this could see the end of the 10% tax rate.
This is not a new position and has been commented on for many years which, in some cases, could see gains being taxed as high as 45%.
However, the body has identified that if the rates were aligned, further reliefs should be put in place, such as a return of indexation to ensure inflation-only gains are not taxed at this level.
The high level of relief is considered to affect investment decisions, such that in tax year 2017-18, around 50,000 people reported net gains close to the threshold and so ‘use up’ the allowance.
The body has proposed that where an asset is exempt from IHT, such as qualifying for Agricultural/Business Property Relief, the asset should not also be rebased in the hands of the person inheriting, leading to a CGT charge on the eventual disposal.
One potentially radical example would be that on the liquidation or sale of a company HMRC could tax some or all of the retained earnings remaining in the business at dividend rates. The body’s justification for such a change is to make the treatment of cash taken out of the business during and at the end of its life more neutral. If implemented, this would represent a significant change.
The OTS has identified that this is a complex area and have noted that tax-advantaged share schemes such as the Enterprise Management Incentive (EMI) Scheme have a policy justification for being taxed in a different way, but this could lead to further changes in other share schemes such as growth shares.
It is important to remember that the OTS is merely an advisory body which makes recommendations for the government to consider. It does not implement changes as these are a matter for Government and for Parliament. However, the timing of the release of the report is intriguing where there is no Autumn Budget.
We do not expect significant tax legislation to be introduced until Spring 2021 at the earliest and it could be perceived that by the government publishing a report as wide-ranging as these 3-4 months before any legislation on the subject is effectively advance warning that things are going to change.
The impact on share-based remuneration cannot be determined at this time but it may be the case that the government are already planning changes in this area. We were expecting that a consultation over the future of employee share schemes – such as the Enterprise Management Incentive (EMI) Scheme – would take place over the summer, but this did not happen. If the OTS are suggesting a major overhaul as to how share schemes are taxed on exit, this could have major implications as to the future of the EMI Scheme.
Paul Twydell leads our Corporate Tax team and specialises in advising on the Enterprise Investment Scheme (EIS), employee share scheme matters such as the Enterprise Management Incentive (EMI) Scheme and also Research and Development tax relief.
Anthony Rose is a Senior Tax Partner with a considerable amount of experience in advising on Private Client matters specifically relating to residence, domicile, estate planning and offshore and international tax planning.