This guide assumes setting up in business as a company. However, this is not the only option – alternatives would include a partnership, acting as a sole trader, or setting up another form of joint venture arrangement.
The guide covers general issues of taxation of profit, payroll taxes and VAT for the business and issues to consider for investors in the business.
UK tax is administered by HM Revenue & Customs ("HMRC").
Part 1 – Running the business
Profit: Corporation Tax
A UK company will be subject to UK corporation tax on its income profits and capital profits. The main rate of corporation tax (for profits over £1.5 million) is 21%from 1 April 2014, and it is intended that the rate will reduce to 20% from April 2015. Companies with profits up to £300,000 pay corporation tax at the small profits rate which is currently 20%. Companies with profits between £300,000 and £1,500,000 (the lower and upper limits) benefit from marginal relief from the main rate of corporation tax. Marginal relief has the effect of gradually increasing the rate of tax for a company as its profits move from the lower to the upper profits limit. Once the main rate of corporation tax goes down to 20% the "small companies'" rate will be abolished and all companies will pay corporation tax at the same rate.
Corporation tax is paid nine months after the end of the accounting period, or, for companies with profits of more than £1.5 million, in four equal instalments, due in the seventh and tenth months of the current accounting period and the first and fourth months after the end of the accounting period.
For tax purposes, trading profits are calculated by deducting from the trading receipts specified deductions together with any expenses incurred wholly and exclusively for the purposes of the trade. Trading profits are taxed on an accruals basis, generally in accordance with the accounting treatment. Capital gains are generally taxed on realisation.
Losses: Trading losses can be set off against other profits and gains, including capital gains, arising in the same, or previous, accounting period, or carried forward and set off against future profits arising in the same trade. Capital losses can only be set off against capital gains arising in the same period or in subsequent periods.
Interest: Interest paid by a UK company is, subject to certain anti-avoidance provisions, deductible in calculating its profits. Deductions are available broadly on an accruals basis.
R&D expenditure: Additional tax relief is available for qualifying research and development (R&D) expenditure. The rate of tax relief available (and the way in which relief is given) depends upon whether the company is a small or medium sized company (SME) or a large company and in each case a number of conditions have to be fulfilled. SMEs are entitled to relief (in aggregate) at 225%. A new 'above the line' tax credit for larger companies involved in R&D was introduced for qualifying R&D expenditure incurred on or after 1 April 2013. The 'above the line' credit is calculated directly as a percentage of the company’s R&D spend. The credit can be recorded in companies’ accounts as a reduction in the cost of R&D – that is ‘above’ the tax line. The above the line credit is payable at 10%.
Goodwill and IPR: The tax treatment of intangibles, such as goodwill and intellectual property, broadly follows their accounting treatment. It is therefore possible in some circumstances to obtain tax relief for the amortisation of intangible assets. A new regime, the "Patent Box" was introduced from 1 April 2013. This allows companies to elect to apply a lower rate of corporation tax to all profits attributable to qualifying patents, whether paid separately as royalties or embedded in the price of products. The relief is to be phased in over 4 years leading to a tax rate of 10 per cent by 1 April 2017. However, the European Commission is currently considering whether the regime constitutes a breach of EU law. It is not currently known when they will present their findings.
Royalties: Royalty payments made by a UK company are usually deductible for corporation tax purposes provided that they do not exceed a market rate.
Depreciation: Depreciation on fixed assets is disallowed for corporation tax purposes. Companies are instead allowed a fixed writing down allowance on certain capital expenditure such as expenditure on plant and machinery.
Transfer Pricing: The UK transfer pricing legislation enables HMRC to adjust a UK company’s profits for corporation tax purposes, if it pays more or less than the market rate for goods or services provided by or to non-arm’s length enterprises.
Distributions: Dividends are paid out of after tax profits. A company does not have to account for any tax when it pays dividends. A shareholder is entitled to a tax credit attaching to a dividend of 1/9th of the cash dividend.
Tax avoidance: A new General Anti-Abuse Rule (GAAR) was introduced from 17 July 2013. This enables HMRC to counteract "abusive" tax planning.
Every company which has directors and employees must operate the Pay As You Earn (PAYE) scheme. This is the mechanism used for the collection of income tax and national insurance contributions for remuneration payable to employees and directors. Companies are under an obligation to correctly operate PAYE and to make monthly returns of the PAYE deducted from employees.
Income tax is payable at three rates; the basic rate (20%), higher rate (40%) and additional rate (45%) There is thresholds for each rate. Employee national insurance contributions are paid at the rate of 12% on earnings between the primary threshold and the upper earnings limit and 2% above the upper earnings limit. Employer's national insurance contributions are payable at 13.8% above the secondary earnings threshold. There is thresholds for each of these rates.
It is essential for the correct tax treatment to be given to the payment of expenses to employees and directors and for any benefits in kind provided to employers or directors to be notified to HMRC. Benefits in kind include the provision of accommodation, private medical insurance and cars.
Income tax and National Insurance contributions arising in respect of certain employment related securities and the exercise of unapproved share options may also be collected through PAYE – see further in Part 2 below.
Value Added Tax
Value added tax (VAT) is payable on the supply of most goods and services in the UK by a taxable person (a person who is registered, or should be registered, for VAT purposes). The standard rate of VAT is currently 20%. Certain supplies are exempt from VAT, the most important of which relate to finance, insurance, education, health and some supplies of land.
A business which has made taxable supplies in excess of £81,000 in the last 12 months, or anticipates making taxable supplies in excess of £81,000 in the next 30 days is required to register for VAT and account to HMRC for it. A business which is registered for VAT must charge VAT on taxable supplies made by it (known as output tax) but can recover the VAT charged on supplies made to it (known as input tax) to the extent that the VAT was incurred for the purposes of making taxable supplies. VAT will however be a real cost for businesses that are making exempt supplies.
Where there is an international element to the business it is important to work out the place of supply for VAT purposes, as UK VAT will only apply where the place of supply is in the UK. However, if the place of supply is another EU country, there may be an obligation to register for VAT there. The rules are complicated and depend upon the precise nature of the supplies made so the following paragraphs should only be regarded as a general guide.
The basic rule is that most supplies of services from one business to another business are treated as made where the recipient belongs. A VAT liability can arise under the 'reverse charge' provisions where a UK business receives supplies from abroad. Where the reverse charge applies, the UK business acts as if it is both the supplier and the customer - it charges itself the VAT and then, assuming that the service relates to VAT taxable supplies that it makes, it also claims the VAT back. Similarly, services supplied from the UK may be treated as supplied abroad, and so fall outside the scope of UK VAT. For services supplied by a business to a non-business customer, the place of supply is where the supplier belongs.
If goods are supplied to an EU business which is VAT registered in the EU, the supply is zero rated (which means that the supplier does not charge VAT but can recover input tax attributable to that supply). The recipient of the goods must account for VAT at the rate applying in its home jurisdiction. If the goods are supplied to a non-business customer located elsewhere in the EU, the UK supplier should apply UK VAT. Supplies of goods are zero rated if they are exported outside the EU to non-UK customers.
Part 2 – Investing in the business
Income tax on employment related shares
Where employees or directors of the business, including those intending in future to become employees or directors, acquire shares in the company at less than their actual market value, they may be charged to income tax on the difference between the price paid and market value.
If the shares carry certain types of restrictions, then further income tax charges may arise on disposal of the shares, or on any change in or lifting of the restrictions. This can be avoided by making an election within two weeks of acquisition, which needs to be considered carefully as the election could also potentially increase any initial tax charge.
Convertible shares, and shares which may have an artificially manipulated value may also give rise to income tax charges.
Where possible, planning should be undertaken prior to acquisition of the shares so as to minimise the risk of any such income tax charges arising, either upfront (when there is unlikely to be cash to meet the tax charge) or on disposal (when capital gains tax treatment is likely to be preferred to a income tax charge plus national insurance contributions).
Granting options to acquire shares in the future may be a useful way to incentivise employees. The company would grant individuals a right to acquire shares in the future upon payment of a fixed sum, and often conditional upon achieving certain performance targets. Although income tax charges may arise if the shares are in fact acquired at an undervalue, there are certain types of option which receive beneficial tax treatment – the Enterprise Management Incentive scheme is particularly aimed at smaller start-up businesses.
Capital gains tax
Where income tax treatment mentioned above does not apply, any gain on disposal of the shares will be subject to capital gains tax. Every individual benefits from an annual exemption, currently £11,000.
All gains on the disposal of assets are subject to capital gains tax at a fixed rate regardless of the type of asset or how long they have been owned. The rate is 18% for basic rate income tax payers (unless the gains, when added to taxable income, take the individual over the threshold for higher rate tax) and 28% for higher rate and additional rate income tax payers.
Entrepreneurs' Relief: this relief can reduce the rate of capital gains tax to 10% on the disposal of shares or assets used in a business if detailed conditions are fulfilled. The conditions need to be considered in detail in relation to each individual, but in the case of shares the main conditions to be fulfilled for the period of at least 12 months prior to the disposal are that:-
- the company is a trading company or the holding company of a trading group;
- the individual is an officeholder or employee of the company (or another member of the group);
- the individual holds at least 5% of the ordinary share capital and votes in the company.
The amount of an individual's gains that can qualify for Entrepreneurs' Relief is subject to a lifetime limit of £10 million. Any gains in excess of the limit are subject to the main rates of capital gains tax highlighted above.
For further details for Entrepreneurs' Relief, see our Out-Law Guide on capital gains tax for individuals on the disposal of shares.
Interest relief: shareholders who borrow to invest in shares in the company may be able to get relief from income tax in relation to the interest on that borrowing. There are a number of conditions to be fulfilled, including in relation to the company’s ownership structure, but the relief may be available where the company is a trading company and the shareholder is either an employee/director or owns more than 5% of the share capital.
Enterprise Investment Scheme (EIS) relief: this relief was devised to encourage investment into small start-up companies. The conditions for EIS relief are complex, but in outline, income tax relief at 30% will be given to individuals investing in qualifying companies on the amount invested up to £1 million in any tax year.
Gains on any increase in value of those shares are exempt provided the individual holds the shares for in excess of three years. Investors therefore have an immediate income tax relief and the prospect of tax free growth in their investment.
This is a particularly attractive scheme for start-up companies wishing to attract venture capital. However the relief will only be available to companies which meet certain criteria (such as in relation to size). In addition, companies carrying on certain trades such as dealing in land, shares, securities or other financial instruments are excluded from the relief.
See our Out-law tax guide for further details of the EIS.
For smaller companies Seed Enterprise Investment Scheme (SEIS) is available. The qualifying conditions for SEIS are based very closely on EIS.
Although the amount of investment qualifying for SEIS relief is quite low - only £150,000 in total for the company, qualifying investors will be able to claim income tax relief worth 50% of the cost of buying shares in the company under certain circumstances.
Qualifying SEIS investors will also be exempt from paying capital gains tax on gains on shares within the scope of the SEIS and benefit from a 50% exemption from CGT on gains reinvested into SEIS shares.
For further detail of the SEIS proposals see our guide to Seed Enterprise Investment Scheme.