Adding a shareholder

[itcontractor79]

Hi all

I am british citizen of Indian origin and working as an IT contractor for the past 5 years.
I am the sole director and shareholder of the company. I am divorced in 2015 and re-married in Dec 17. My wife is based in India and will join me in June 2018.

I have around 150K in my business bank account. I need the below clarifications with regards to taking out money from business account in a tax effective way.

1. Can I add my spouse as shareholder though she is not based in UK?
2. Will it raise an alarm bells if I add her as a shareholder now and pay dividends in June?
3. Do I have to submit any proof of relationship to HMRC?

Thanks for your help.

Regards
ITC

[TheCyclingProgrammer]

I don’t see how where your wife lives makes any difference as far as making her a shareholder goes but it probably makes a massive difference to the tax situation as far as any dividends go.

I wouldn’t worry about alarm bells. As long as the shares are ordinary shares and more than a right to just income then the Arctic case law puts you on safe ground.

Nobody is going to ask for proof of your relationship unless you get investigated.

If I were you I’d speak to an accountant. With £150k you could be making a very expensive mistake.

[WTFH]

Your accountant will be able to take you through all of this.

[Lance]

I have around 150K in my business bank account. I need the below clarifications with regards to taking out money from business account in a tax effective way.

1. Can I add my spouse as shareholder though she is not based in UK?
2. Will it raise an alarm bells if I add her as a shareholder now and pay dividends in June?
3. Do I have to submit any proof of relationship to HMRC?

1. Yes. Simple way is she buys the shares. Problem is the company is worth £150k so they'll not be cheap. Nothing to stop you gifting them, or selling them cheap but get professional advice first.
2. No.
3. No. Well not unless they investigate you and you have to prove she's your wife (for S660 purposes).

[tarbera]

surly

surly better to Pay her a £5K dividend prior to April 5th 2018 to have it completely Tax Free?

[Lance]

surly better to Pay her a £5K dividend prior to April 5th 2018 to have it completely Tax Free?

OP might have already reached higher rate for his own portion so it wouldn't make sense.
But if not then yes this is a good idea.

[craigy1874]

surly better to Pay her a £5K dividend prior to April 5th 2018 to have it completely Tax Free?

'Surly' or maybe not!

[TonyF]

OP might have already reached higher rate for his own portion so it wouldn't make sense.
But if not then yes this is a good idea.

If they issue a different class of share then what they have earned becomes irrelevant.

[Lance]

If they issue a different class of share then what they have earned becomes irrelevant.

correct. However alphabet shares are not proven to be exempt from S660. It's probably still good but there's no case law to back you up.

[TheCyclingProgrammer]

correct. However alphabet shares are not proven to be exempt from S660. It's probably still good but there's no case law to back you up.

I'm not sure that's entirely true. Whilst it is true that there hasn't been a specific, Arctic-like case that revolved around the issue of alphabet shares, due to the shareholders being married the Arctic case ultimately hinged on whether or not the spouse exemption applied as without it any gift of income to a spouse is automatically caught.

As I'm sure you know, the decision was that the spouse exemption applied specifically because the shares in question were more than a gift of income. They also came bundled with additional rights including the right to vote and the right to receive a capital distribution. Had the shares been of a class that only came with the right to receive dividends, the exemption would not have applied.

Therefore, because it is possible to have more than one class of ordinary share that otherwise rank pari-passu in terms of the rights attached to those shares, it's hard to imagine under current legislation how HMRC could challenge that in the face of the case law established in Arctic, which IMO is still relevant.

It's not risk-free of course. There's always the risk you end up as the next big test case, if (and it's a big if), HMRC decide they want to start pursuing settlements cases again. AFAIK they have been few and far between since Arctic.

I've read that one possible way HMRC could challenge an alphabet share arrangement is not arguing that the original settlement of shares is caught (because they would probably lose as per the Arctic case) but that there is in fact a second settlement created by voting for a dividend on one class of shares at the expense of another class of shares, particularly where it wouldn't be possible to pay the same level of dividends on both due to insufficient reserves, as that would be a bounteous arrangement in its own right. IMO this seems like grasping at straws and would likely only come into play if you start offloading disproportionate amounts of dividends onto the lower tax paying shareholder. I doubt this argument would ever come into play if all you're doing is paying small levels of dividends to a basic rate paying spouse to take advantage of the dividend allowance. At the very least, the amount of tax HMRC could recover would probably not be worth the cost of the investigation!