Property disposal was on trading account

In a recent case the first tier tax tribunal denied the taxpayer’s claim that HMRC be prevented from rasing a new argument

In 2002 the taxpayer partnership sold a property originally acquired in 1996. The disposal was reflected on its partnership tax return as a capital gain for the year ended 5 April 2003. The taxable gain was then calculated on the basis that business asset taper relief applied.

HMRC opened an enquiry into the 2003 return and, when this was concluded, issued a closure notice. This stated that there was no capital gain and that the partnership turnover be increased by £1,150,002 to reflect the disposal proceeds. A partnership statement reflecting HMRC’s amendments was also issued.

The taxpayer initially appealed to HMRC against the closure notice. Following a review, HMRC upheld the decision, sending a letter saying ‘should the tribunal find that the transaction was by way of an investment [rather than as part of the partnership’s trading activities as decided in the closure notice], HMRC would argue that because the land was not a trading asset, taper relief should be restricted.’

The partnership appealed to the Tribunal, adding that as the closure notice contained no reference to restriction of taper relief, HMRC should be precluded from using that argument.

The tribunal was referred to the case of Tower MCashback v CRC [2010] where Moses LJ, took the view that an appeal against the conclusion stated in a closure notice is confined to the subject matter of the enquiry but a tribunal hearing would not be limited only to the arguments delivered in the enquiry and its conclusions.

In addition, HMRC argued that the issue of whether CGT taper relief should be restricted was within the scope of the subject matter of the appeal.

The tribunal agreed, saying ‘although HMRC’s conclusion… reflected the trading issue, the subject matter… was the purchase and sale of the property.’

The arguments about CGT taper relief, therefore, were ‘within the scope of the subject matter’.

The tribunal concluded that ‘it is clear that this is not a case where the appellant can claim to have been ambushed’ and dismissed the appeal.


Case Studies

The Tax Man

Minimise the stress of an investigation and make use of our extensive experience in securing best outcome for our clients

Business Valuation in Distress

Take advantage of our impartial and rigorous due diligence procedures

FD in The Cupboard

Our innovative ideas are here to improve your business performance and secure appropriate and cost effective funding

The Tax Man

The Tax Man

A new client was introduced to us via a recommendation with whom we arranged to meet on a regular basis in order to determine a number of changes that we felt were needed to their business structure. The client was at the time operating as a husband and wife partnership. The business was flourishing and had a number of large contracts with big organisations.

At the start of the process they were still heavily immersed in their day to day operations so we can get a full flavour for their ambitions, aspirations and growth plans. We quickly recognised there were sufficient tax savings which can be achieved by changing the structure from a partnership to a corporate entity. We carried out a business valuation and disposed of the goodwill from the old to the new business. Unfortunately, as often is the case with efficient tax planning, HMRC got involved and disputed our valuation.

An HMRC investigation can be a very stressful time for any client, even for those best prepared. However, our client had minimal input in the HMRC communication as we dealt with this professionally behind the scene. As an added benefit, our client could rest on the security that all work was covered by insurance and therefore all costs and time in dealing with this enquiry were covered by the fee protection policy we had put in place.

The initial approach taken by HMRC was very aggressive and they tried to present an argument that there was no goodwill in the business. We challenged HMRC’s view that the goodwill was worthless. After lengthy correspondence and numerous telephone calls, HMRC agreed 100% with our original valuation, which preserved our original tax saving plan for the client. Tax savings on this case where in the region of £75K at the outset, with ongoing savings of £6,000 per annum. We are pleased to add another happy client to our portfolio.

Business Valuation in Distress

Business Valuation in Distress

Selling a business is never an easy process, but when disputes arise, the need for a reliable third party due diligence process is even greater.

Tearle & Carver have extensive understanding of the requirements for remaining objective when managing a potentially difficult company buyout. In one such case, we were approached by the courts to act as independent accountant for an acrimonious business sale in which one partner was exiting the business and selling shares to the other. Given the circumstances, both sides had totally polar views of what their business was worth.

After arranging an initial meeting with the company, we were thorough in ensuring we completed due diligence, validating the figures in the accounting records, carrying out adjustments where appropriate, and drafting a set of reliable management figures within the framework required by the court.

A draft version of the report detailing our findings and conclusions was submitted to both parties, giving them the opportunity to voice any queries or concerns and ensure all relevant factors had been taken into account.

Through this process, we were able to submit a final report to the courts that was both binding and acceptable to both parties, effectively resolving what could otherwise have been a time consuming and costly process for all sides.

FD in The Cupboard

FD in The Cupboard

For smaller companies, it is often not possible or cost effective to pay for a full-time Financial Director.
Many of our clients therefore make use of Tearle & Carver’s extensive expertise to provide the services of an FD as and when required.

In this case, we were approached by the management team of an organisation looking to acquire the existing business via an MBO (Management buy out). Their business plan had proved ineffective for securing funding, and what they needed was financial expertise from someone with a developed understanding of the company’s internal workings.

Tearle & Carver helped deliver the solution our clients were looking through utilising our bank contacts in order to make the MBO viable, while also building a robust business plan and preparing our client for the rigorous vetting process. To help with cash flow issues, we introduced factoring which led to improved cash flow management.

We advised on the appropriate business valuation and structure, and continued to prepare monthly accounts to track profgress once the management were fully in command of all the information they needed to move their business forward.

In order to best assist these clients through the crucial first year of ownership, we attended board meetings on a regular basis, a service that we continue to provide to date.

With our continually developing understanding of their business, this client is able to remain confident that Tearle & Carver can provide any financial support they may need, now and in the future.