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Where a director of a company appoints another person to act as an alternate director, does that prevent the director claiming ‘entrepreneurs’ relief’ in respect of share held by that director?
Q&As
Entrepreneurs’ relief (ER) is a complex relief for individuals and certain trusts from capital gains tax in respect of disposals of certain business assets and shareholdings, subject to detailed conditions set out in sections 169H–169V of the Taxation of Chargeable Gains Act 1992 (TCGA 1992). Those conditions were made more complex in the Finance Act 2019. In summary, the relief takes the form of a reduced tax rate of 10% in respect of chargeable gains from such disposals, capped at an overall lifetime limit per taxpayer of (currently) £10m. For further
Where a director of a company offers a legal charge on his residential property as security for a repayment plan for monies due under an asset purchase agreement, would the security fall foul of FSMA 2000 and/or Consumer Credit Act? Would the charge be enforceable if the director failed to repay the sums due as agreed?
Q&As
No person may carry on financial services regulated activities ‘by way of business’ in the UK unless he is an authorised person or an exempt person (see section 22 of the Financial Services and Markets Act 2000 (FSMA 2000)). The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, SI 2001/544 (RAO) sets out the regulated activities requiring authorisation or exemption if
Where a director personally guarantees the debts of their own limited company, is that guarantee subject to the debt pre-action protocol?
Q&As
The debt pre-action protocol (the protocol), which will come in to force on 1 October 2017, is broadly drafted in respect of who it applies to and thus, who is captured by its requirements. The protocol will apply to any business (including sole traders and public bodies) who is claiming a debt from an individual (including a sole trader). In
Where a director resignation Form TM01 is erroneously filed at Companies House, does this have the effect of resigning the director in fact? If so, would this invalidate the execution of documents by the individual during the period of the erroneously-filed form?
Q&As
The Companies Act 2006 (CA 2006) does not contain any specific provisions about how a director may resign. Subject to any specific provisions in the company's articles of association or the director’s contract of employment, it is usual practice for a director to resign by way of a resignation letter addressed to the other directors of the company. If the company has adopted the model articles
Where a disabled employee who has been invited to a disciplinary hearing has been unable to find a companion to accompany them (eg where their trade union has refused to provide a companion because of the employee’s prior conduct, and their chosen work colleagues have also refused), what are the options available to the employer to minimise the risk of claims?
Q&As
Right to be accompanied For information: • on the statutory right to be accompanied, see Practice Note: The right to be accompanied • on the possible claims that may arise in relation to that statutory right, see Practice Note: Claims arising out of the right to be accompanied Under section 10 of the Employment Relations Act 1999 (ERA 1999), the employer is required to permit a worker to be accompanied to a disciplinary or grievance hearing if they reasonably request to be accompanied. The right is to be accompanied by a companion who is: • chosen by the worker, and • either: ◦ a trade union official who is employed by the trade union or certified in writing by
Where a disabled person's trust is created for a 16-year old child by their parents, will holdover relief be available for capital gains tax purposes on the entry of assets into the trust? Will the trust be settlor-interested for income tax purposes given that the settlor's unmarried minor child will be the beneficiary of the trust?
Q&As
We assume that the disabled child referred to qualifies as a disabled person under section 89(B)(2) of the Inheritance Tax Act 1984 (IHTA 1984) and Schedule 1A to the Finance Act 2005 (FA 2005). Where a parent wishes to settle property on trust for a disabled child and benefit from the favourable tax treatment under IHTA 1984, ss 89 or 89B(1)(c), they can establish a: • discretionary disabled trust under which, during the life of the disabled person, no interest in possession in settled property subsists and which provides that (for trusts established on or after 8 April 2013) a maximum of £3,000 or 3% of the value of the trust fund can be paid to somebody other than the disabled person each year.
Where a discount on a bond is treated as disguised interest, does the deeming provision mean that income tax must be withheld at source from the payment of the ‘interest’?
Q&As
The disguised interest rules apply to ‘returns economically equivalent to interest’. For income tax purposes, the rules state that these returns are charged to income tax even if they are not otherwise charged (ITTOIA 2005, s 381A). For corporation tax purposes, the loan relationship regime in Part 5 of CTA 2009 applies to these returns ‘as if the return were a profit arising to the company from a loan relationship’
Where a discovery amendment has been made to the tax return of a dissolved, trading limited liability partnership under section 30B of the Taxes Management Act 1970, how can this be appealed?
Q&As
Section 30B of the Taxes Management Act 1970 (TMA 1970) permits HMRC, subject to various conditions, to amend a partnership’s tax return so as to correct errors. TMA 1970, ss 30(8) and 31(1)(c) confer a right of appeal to the First-tier Tax Tribunal against the amendment to the tax return. Where a limited liability partnership (LLP) has been dissolved or wound up, it no longer has legal personality. This means that it can no longer exercise legal rights, including rights of appeal. However, much of the
Where a discretionary trust deed and the title deeds to an unregistered property held within the trust have all been lost, what remedies are available to the trustees/beneficiaries? The settlor has lost capacity and the firm of solicitors who lost the deeds has been subject to an SRA intervention but to no avail.
Q&As
Issues of capacity are handled by the Court of Protection, see Practice Note: Court of Protection practice and procedure—overview. Permission is not usually required to make an application relating to property and financial affairs, but permission may be required to make an application relating to personal welfare. The detailed rules as to when permission is required are
Where a discriminatory act has taken place on a managed premises by an independent third party operating an event in a communal area of said premises, can the management be held liable for discrimination in goods and services?
Q&As
It is assumed that this question only applies in relation to the supply of goods and services. Discrimination under the Equality Act 2010 The Equality Act 2010 (EqA 2010) ensures that people are treated equally regardless of the characteristics which they might have. EqA 2010, Pt 2, Ch 2 details prohibited conduct and the different types of discrimination. EqA 2010, Pt 3 is applicable to services and a person must not be treated in a discriminatory way because of a protected characteristic by service providers when that person requires their service (EqA 2010, s 29). For further information on the protected characteristics which are relevant in relation to the provision of services under EqA 2010, Pt 3, see Practice Note: Equality Act 2010—discrimination in the provision
Where a distributor sells a product, that has been put on the market in the EEA by the rightsholder and to which a registered trade mark has been applied, in an EEA state for a purpose that the product is not fit for, does the exhaustion of rights principle still apply or is this trade mark infringement?
Q&As
A trade mark proprietor has the exclusive right to use a trade mark, which is infringed by the use of the trade mark without his consent. However, such rights are exhausted by a sale of the product on the market within the EEA, unless there are legitimate reasons. Legitimate reasons include cases where the distributor changes the condition of goods or where packaging has been improperly applied, provided that the essential function of the trade mark is affected. This suggests that a proprietor should be able to prevent resale of products to which its trade mark is applied which are not fit for purpose, assuming that such incidents are not isolated cases. Each case will turn on its own merits
Where a dividend payable by a company has been unclaimed for a period of more than 12 years so that, in accordance with its articles of association, it ceases to be owed to the intended recipient, what can the company do with the sums that represent that forfeited dividend?
Q&As
Once a final dividend is declared by a company (ie approved by its members) it becomes a debt that is immediately due from the company to its members and payment can be enforced, unless the terms of the approving resolution provide for it to be payable at a future date, in which case, it becomes a debt due only on that date; in contrast, the decision to pay an interim dividend is one for a company’s directors and no debt becomes due from the company to its members at the time that decision is made and payment cannot be enforced—a member’s right to an interim dividend does not arise until the dividend is actually paid (Burland v Earle;Potel v IRC). The default time limit for recovery