Family Investment Companies have seen something of a resurgence recently and though not the panacea that they are sometimes thought to be, they can be very effective in the right circumstances. Haysmacintyre’s Head of Tax, Katharine Arthur, sets out some of the main considerations regarding their use.
A Family Investment Company or FIC is essentially a private investment company. The directors and shareholders of the company will be individual family members or family trusts. Also a very flexible structure, an FIC allows families to define how specific family members benefit through varying rights attaching to shares or the number of shares in issue. Shares cab be structured to allow the passing of ownership of underlying assets to the next generation without older family members losing control.
An FIC can provide a straightforward, tax efficient solution to family succession issues. The solution will be most relevant to individuals with substantial investment assets and income, to be preserved for the next generation and protected from high personal tax rates. The tax perspective of an FIC is important but it is also essential to consider the protection, commercial and personal implications.
CREATING AN FIC
One should be aware when creating an FIC, that the main downside of transferring assets standing at a gain into an FIC is that it is a CGT disposal, crystallising gains at 20/28%. Therefore, it is recommended to use cash, or assets with minimal gains (e.g. recently inherited portfolios), or offset capital losses (where available).
If an individual places the money in an FIC, this will often be by way of a loan. These loans are often interest free and repayable on demand. If funds are required repayments of loan capital can be made without incurring further tax. For example shares may be sold to the company but the proceeds left on loan, perhaps due to a newly formed FIC not having available funds. When dividend income begins to flow to the company these could be used to fund loan repayments, giving the ‘founder’ access to the funds in a tax free form.
As with most companies, tax will arise where profits are extracted either in the form of income tax on distributions or capital gains tax on share disposals. From April 2016 the dividend regime has changed and a new tax free dividend allowance of £5,000 has been introduced. Any dividends above this level will be taxed at 7.5% (basic rate), 32.5% (higher rate) and 38.1% (additional rate). Care must be taken to ensure a Stamp Duty Land Tax liability does not arise on the transfer to an FIC of commercial or residential property. The value of the shares in the FIC will be subject to IHT on the death of the shareholder, to the extent of the value of their shareholding. The benefit lies in the gift of shares to the next generations.
FICs are taxed in the same as other companies and pay corporation tax on their annual income and gains. Unlike individuals, FICs still benefit from indexation on capital gains, removing an allowance for inflation from the charge to tax. Crucially, there is no charge to corporation tax if the FIC is in receipt of dividend income from UK companies and the FIC therefore offers potential protection from high personal and trust tax rates of up to 38.1% from 6 April 2016.
ADVANTAGES OF AN FIC
- Cash transfer into the company is tax-free
- No immediate charge to IHT on the gift of shares from the donor (parent) to another individual (children/grandchildren) as deemed to be a potentially exempt transfer (PET).
- No further IHT implications on the donor if they survive for seven years following the date of gift (but watch out for a CGT charge on the gift of the shares themselves).
- The donor can exercise control in the company providing the articles of association are drafted such.
- The company would only pay tax at a rate of 20% on the profits that it generates (0% on dividend income).
- Shareholders only pay tax to the extent the company distributes income.
- If the profits are retained within the company (or used to repay an initial loan), no further tax would be payable.
DISADVANTAGES OF AN FIC
- If non-cash assets are transferred into the company, the donor may incur a capital gains tax (CGT) charge at a rate of 28% based on the market value of assets at the date of transfer.
- When assets qualify for reliefs such as business property relief or agricultural property relief, a trust structure may be more suitable.
- There is an element of double taxation in using the company structure. The profits are first subject to corporation tax at a rate of 20% and then are subject to income tax when they are subsequently distributed to the shareholders.
- The company will have to comply with company filing regulations, but there are also costs to consider when setting up and running the alternative of a trust.