ToGC ... or not?

Mar 01, 2009 35 Replies

Does anyone out there know much about ToGC (transfer of a going concern)? Are there any advantages/disadvantages of ToGC, compared to a simple supply of business assets, for the following situation? :-



Current position: Sole-trader, supplies services (not goods), VAT-registered (partially-exempt) although trading below de-registration limit for last few years. Business assets comprise of equipment (computer/printer/fax, all several years old now) plus some stationery (paper/pens/postage stamps etc).



Proposed position in future: Trade through limited company, company currently NOT VAT-registered & to continue as NOT VAT-registered (turnover below limit even including new business being taken).



On reading VAT Notice 700/9, it appears that:-



(A) If register the company for VAT beforehand, then a transfer of business assets will be a ToGC (and then subsequently de-register company, being below de-reg limit);



(B) If don't register the company for VAT, then a transfer of business assets cannot be a ToGC (per section 2.3.4 of Notice 700/9), so it's a normal supply & therefore the sole-trader needs to charge VAT on the transfer of business assets (which the ltd co cannot then reclaim as input VAT);



(C) If don't register the company for VAT, and also de-register the sole-trader the day before transfer of business assets, then again cannot be a ToGC but now should not (cannot!) charge VAT on the transfer of business assets...?



Are the above comments correct? If so, any thoughts on which way forward is best?



Also, as a novel idea, what happens if the sole-trader business is just closed and the business assets aren't transferred to the limited co? I mean, what happens in the sole-trader's accounts in respect of the business assets? (Are they 'sold' to the business owner personally, at some notional price?)



Finally, are there any rules for placing a price on the business assets when transferred, if the sole-trader and the limited co are linked? For instance, can the assets be sold for just 1? (they're probably worth well under 1000 anyway...)



Thanks for anyone's input....................


Are you seriously trying to deal with this without an accountant?

I don't see any reason why the OP can't handle this themselves, the amounts are such that an accountant's fees would be high in comparison with the values being quoted. Even if the OP gets some things wrong, what's the worst that can happen? OK more tax to pay?

What's more surprising is that no advice has been offered which suggests the OP is more informed than a lot of accountants.

Do you own both businesses? Are you offereing a service, ie your time. If you stopped, would the residual value be it's nominal assets such as equipment? In which case stop trading in one company and start in the other.

I presume you should sell the assets to the Ltd company but they will have to be + VAT. They should have a write down value and it would be simplest to use this value if sold. Alternatively keep quiet about the tools/equipement to save the VAT!

Let me guess. You are not an accountant.

If you were you would understand that there's a lot of questions to ask before you can give any sensible advice.

If they used an accountant the accountant would understand what was going on without having to type every option.

You are not very bright if you think you should compare the accountants fees with the values quoted (£1 or £1,000). Surely the accountants fees should be compared with the cash flows possible to be obtained in the future?

You can think what you like. What sort of fees does an accountant charge to do a years Ltd company books. I would say a nominal 1,000. If the OP is busy every day then I would say they should get an accountant to do their accounts. If their work is seasonal then it make sense to do their own. I would possible agree the first years ought to be done by an accountant, possibly even 2. But if they have a good head for arithmetic, they can then save 1,000 a year.

Perhaps I've had a bad experience with one accountant who had no idea what he was doing - and worse still he was CIMA qualified - or claims he was!

There's nothing wrong with doing the day to day bookkeeping yourself but doing year end accounts with no knowledge or experience of statutory accounts requirements and taxation is madness.

In this case I am talking about possible tax savings. I just can't imagine this person having the knowledge to come up with the best solution. Trying to find the best solution over the internet is even worse.

People have had bad experiences in cars. Do they therefore avoid cars in future?

Are you seriously trying to deal with this without an accountant?

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I didn't say that did I?! I was just trying to get some other views on the situation, to compare against what our accountant has already said. (Wouldn't want to rely on just one opinion...!)

Do you have any thoughts on this - would you need to know anything else to be able to decide?

The limited co is owned by two people, one of which is the sole-trader. Yes, supplies are services (not goods). I guess the residual value would just be the few assets. Stopping trading as sole-trader and starting through limited co does seem the simplest way....

By "write down value", do you mean the written-down value for (capital allowances) tax purposes? (rather than value after depreciation deducted)

It's not an opinion. It's facts.

What you said about VAT Notice 700/9 is just stating the obvious.

The assets should be sold at a reasonable value.

Why are you considering transferring the business to a limited company?

It's not an opinion. It's facts.

What you said about VAT Notice 700/9 is just stating the obvious.

The assets should be sold at a reasonable value.

Why are you considering transferring the business to a limited company?

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I was thinking that different accountants might have different opinions on the choice of whether to register the limited co for VAT, and/or whether to de-register the sole-trader. Wouldn't the facts of the case only follow after those decisions have been made?

Putting future business through the limited co is so as to get it all under one "umbrella", with the added advantage of lower total taxes. Isn't that a good idea?

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No. There's different reasons for doing them different ways.

Why are the taxes lower?

No. There's different reasons for doing them different ways.

Why are the taxes lower?

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So, how would you decide whether to (voluntarily) register the limited co for VAT and/or de-register the sole-trader?

The accountant said taxes would be lower, something to do with paying small salaries plus dividends from the limited co (two shareholders/directors), without having to pay NI contributions anymore? Isn't that right?

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I'd consider the future not simply the transfer.

Whether you are better off is not simply to do with whether you pay small salaries plus dividends. Unless you know the details you are not going to make the right decisions.

"A little knowledge is a dangerous thing"

When did you see a magazine entitled "Which Accountant". If there was one which kept me abrest of the qualities of accountants in my area, I'd buy it. Instead I have experiences of 2. One ripped me off and the other was totally incompetant.

Generally you are correct. In the absence of any means tested benefits, you pay yourself a salary sufficient such that you are credited with NI. I can't recall the figures but someone may be able to give them here.

The rest of the income is then paid by dividend. It can become fraught if the partners ever require different levels of remuneration, but this can still be done by having 2 classes of shares.

Tax on dividend is currently lower than standard income tax, but increases in corporation tax in future years may negate this. Also with the credit of NI, you don't need to purchase any NI stamps either which you would if you were self employed.

In theory the value after depreciation is meant to reflect their nominal value. I'm sure P.S. will disapprove but I tend to make written down value using capital allowances to be the same as value after depreciation. If anything is sold at this value, then there has been no gain or loss, so no tax to pay or to receive.

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For what it's worth you will not be able to get much tax relief for pension contributions.

Unless you try to do them yourself you will have to pay an accountant for statutory accounts and payroll.

You still have to pay corporation tax though.

Payroll? You mean complete an IR35 form once a year? You can do all that nicely online at the end of the personal tax year, or is it by April 19th? The online forms are "almost" self explanatory, even if you have the odd perk! Oh by the way the OP's company can provide a mobile for free, something they can't do whilst s/e.

Yes you have to pay corporation tax, but you pay income tax on any future pension you receive. Either way you pay essentially the same tax. If you still want a pension, leave the cash in the company and use the company as your pension fund, where you can invest it and yet still get at it for a rainy day, unlike any pension contributions which you can't (apart from the

25% you can)! Or the company can make pension contributions direct. That means the OP doesn't have to pay NI on pension contributions! Who needs tax relief when they're made direct?

Personally it's a close call, but the Ltd company is an entity in it's own right, it also looks more professional than s/e. It's especially useful if you have the CSA at your ankles.

om...

IR35? P35.

Don't you bother with P60s, P11Ds and payslips?

Mobile phone free? The company has to pay for the mobile phone. How much do you think you would be better off by?

Personally, I don't think its worth the effort of a limited company unless your profits are something like £60k.

I would say a non-accountant can't prepare statutory accounts whereas they could do a tax return except they may have problems with capital allowances.

CSA? Don't they take into account dividends? Or are you wanting to make profits and have the cash left in the company?

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