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Wealth Management & Protection
Asset Protection is essential for protecting and preserving company and family assets from third party claims, divorce, bankruptcy, spendthrift spouses, and youthful improvidence.
Taking the most appropriate action for the protection of your own personal assets is a very complex undertaking, requiring specialist taxation and legal assistance. Asset protection must be commercially driven and cannot be used to avoid paying creditors.
Whilst asset protection is fundamental in considering estate planning, the principle can be extended to other circumstances as well. Two common areas in brief:
PROTECTING AN INDIVIDUAL’S ASSETS
Generally, one of the most efficient ways you can protect assets is by transferring them into a relevant and properly constituted trust. The asset should then be protected against the bankruptcy or divorce of the beneficiaries.
Firstly, setting up a trust for asset protection will in itself not afford any protection under insolvency or matrimonial laws for beneficiaries if the wrong type of trust is used. We have seen many trusts set up for this purpose that have failed. If one tries to rely on an improperly constituted trust for asset protection the courts may look through it and seek to set it aside.
Secondly, a point which regularly tends to be overlooked (particularly regarding property) on transfer is the mortgage against the property. If the mortgage is more than the original “base” cost of the property (perhaps due to remortgaging) then Capital Gains Tax may be liable if the mortgage is transferred into the trust. Furthermore, such transfer may potentially trigger a Stamp Duty Land Tax charge.
Many think that an outright gift of assets directly to children, siblings, etc will automatically afford protection against divorce or bankruptcy. This may not be the case and is a potentially dangerous presumption to rely on, specialist professional advice should be sought to achieve the desired results. Also such transfers tend to trigger a Capital Gains Tax charge under the deemed disposal rules and again this is often overlooked with significant tax consequences.
Businesses may wish to protect vulnerable property and assets against commercial and business risks. Broadly speaking, one way this could be achieved would be by creating a group of companies and transferring the property into this group. The effect of this would be to “ring-fence” the vulnerable asset against any claims of the individual trade in the group.
It is essential that any asset transfers is done correctly to avoid the property being “linked” to the original business, as this will afford no protection. Of equal importance is that any debts between the group companies would need to be dealt with correctly to provide any real protection.
In all cases there needs to be a legitimate business, commercial or investment driver for the transaction. Furthermore, it is crucial that any such restructuring does not fall foul of insolvency legislation, namely the defrauding of creditors.
Asset protection is an invaluable planning tool which can be used to protect, preserve and devolve family wealth in the right circumstances.
For further information on how you can effectively safeguard you assets and wealth please contact us.
Latest news & blogs…
In the Summer Budget 2015, the Chancellor announced changes to the pensions annual allowance that are likely to have an effect on NHS Pension Scheme members.
Measures to restrict pensions tax relief will be introduced from 6 April 2016 with the introduction of a tapered reduction of the annual allowance for individuals with income over £150,000. The key points that you should be aware of include:
- The provisions reduce the annual allowance by £1 for every £2 that an individual’s adjusted net income exceeds £150,000, up to a maximum reduction of £30,000, resulting in only £10,000 of pensions annual allowance at income levels of £210,000 or above.
- Further restrictions can apply subject to timing of the drawing of multiple pension funds.
- As the NHS Pension Schemes are defined benefit schemes, individuals have to take into account the increased value of their pension over a period of time and not the superannuation paid into the NHS Pension Scheme. Doctors with relatively modest earnings may be caught under the new regime as the levels of income attributed to the calculations include amounts after employee pension contributions, the growth in the pension scheme, and all other income including investment income.
- Doctors in both the 1995/2008 Scheme and the new 2015 Scheme will have even further complexities to their calculation than previously and it is important the pensions annual allowance position continues to be reviewed on an annual basis.
- The use of estimated figures may be needed in order to ensure that individuals are made aware of any impending tax liabilities.
Threshold income – this is all earned and unearned income on which income tax is charged. It is at this point that relief for employees’ contributions is given. If the threshold income is more than £110,000 (ie £150,000 less the maximum annual allowance of £40,000), a second calculation will be required, adjusted income.
Adjusted income – this is threshold income plus adjustments for occupational personal pensions and includes the actual pension input amount for the year less any member contributions paid in the tax year.
The inclusion of a pension charge in the tax liability also 125,000 increases the taxpayer’s payments on account in the following tax year, although there is an option to request that the pension scheme pays the tax, subject to certain limits, conditions and deadline dates for the elections needed, (31 July 125,000 following the tax return deadline submission date).
This change in legislation will have a impact on large numbers of NHS Pension Scheme members. As a result, income tax planning is more important than ever. Consideration of the effects of your personal circumstances is necessary to ensure you plan accordingly.
Key tax issues for businesses to consider
The decision has been made. The aftermath has created panic and hysteria both politically and economically. The fall-out from Brexit will take some time to play itself out, however, what should businesses consider in these spectacularly uncertain times?
Short term, the vote for Brexit will have little immediate impact beyond increased volatility in the currency and stock markets given that an emergency Budget has been ruled out. The new PM Theresa May may well look to bolster the UK’s attraction as a business location as one of her first duties.
Longer term, the effects on some sectors will be more fundamental and unlikely to make it easier to do business within the EU. Clearly this will depend on the terms the UK can agree for Brexit, something which may not become clear for some time – possibly years. There may also be significant impacts on businesses with little direct EU trade.
In the meantime, uncertainty over the UK’s relationship with the EU will continue for months or years creating a drag on the economy as businesses and consumers take a wait and see approach to investments and major purchases.
As with all major economic shocks, businesses that remain engaged and adaptable will be best placed to trade profitably and make the most of the opportunities that they offer.
Some key issues to consider:
- VAT – sales of goods to and from the UK become imports and exports (no acquisitions), which would need to clear customs and incur import charges – triggering a cash flow disadvantage (the delay between paying customs charges and entitlement to recover the input VAT). This can be mitigated by using deferment and customs warehousing arrangements.
- Customs Duty – on Brexit the UK will no longer be part of the EU’s Customs Union. As a result, EU customs duties could apply to imports from the UK, making it less attractive for EU companies and consumers to source goods from UK companies. Similarly, the UK Government may extend the current UK customs duty tariff to imports from the EU, adding costs for UK companies reliant on raw material and finished goods from EU suppliers.
- Repatriating profits and withholding taxes – withholding taxes on dividends from EU subsidiaries or payments of interest or royalties to or from companies located in the EU will be problematic. Currently, EU legislation allows subsidiary companies to pay dividends up to a UK parent company without the need to account for withholding tax. Similarly, companies often rely on the interest and royalties directive to make interest or royalty payments free from either UK or local withholding taxes. If the benefit of this legislation is withdrawn, companies would be relying on existing double taxation agreements in order to reduce or eliminate withholding tax rates.
While the majority small UK business will be directly unaffected, these are some of the changes certain businesses need to consider in order to find a path of least resistance in this volatile climate.
Should you require further information regarding the above, please contact us on +44 (0)114 275 62 92 or firstname.lastname@example.org.
HMRC has backtracked on hundreds of Accelerated Payment Notices (APN) after admitting defeat following an application for Judicial Review. This affects the notices it has issued to hundreds of taxpayers as a result of a Judicial Review lodged on their behalf. This is not the first time that HMRC has undertaken a withdrawal of APNs that they had previously issued.
APNs were challenged on a number of grounds including the argument that the Employee Benefit Trust arrangements under consideration were not ‘notifiable’ to HMRC, under the DOTAS regime. HMRC has now admitted that it did not have the right to issue the APNs in relation to these arrangements.
Shipleys Tax Planning partner, Shabeer Yousuf CTA, says “this case demonstrates, that a taxpayer in receipt of an APN should not automatically assume that HMRC has followed the correct processes and exercised its powers lawfully, the taxpayer should seek specialist advice.”