tax planning for partnerships – comparison of structures mark briegal, partner
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Tax Planning for Partnerships – Comparison of StructuresMark Briegal, Partner
Aaron & Partners LLP
Agenda
• The options• Pros and Cons• Key features and comparisons• Tax• Corporate and Hybrids
• Own use and clients’ use
LLP?Company?
Partnership?
The Options
• Sole trader
• General partnership (GP)• Limited Partnership (LP)• Limited Liability Partnership (LLP)• Limited Company (Ltd)
General Partnership - Overview
• Partnership Act 1890
• Not a separate legal person
• No formal formation or incorporation
• Relationship between the parties
• Default rules, but partnership deeds important and common
• Tax transparent
• Self assessment – No accounts
Limited Partnerships - Overview
• Limited Partnership Act 1907
• Formal registration
• Limited liability for some; but must have one general partner
• Limited partners must not participate in management
• Tax transparent
• Self assessment – No accounts
LLP - Overview
• Limited Liability Act 2000
• Limited liability
• Incorporation and registration
• Disclosures
• Tax transparent
• No capital maintenance
• Self assessment
• Audit
Companies - Overview
• Companies Act 2006
• Incorporation and registration
• Shareholders
• Employees and officers
• Corporation tax
• Profit extraction
• Some tax reliefs
• Incentive plans
Limited Company - Pros & Cons
Advantages• Risk management• Recognised vehicle for M&A
activity• Relatively low set up and
operational costs• Potential goodwill extraction• Retained profits taxed at
corporate rates• Better structure for ABS &
share incentives
Disadvantages• Inflexible succession
planning / ERS• Benefits in Kind regime –
particularly cars• Very expensive:
– NIC costs– PAYE– NIC– Cash flow
Incorporation
• A corporate entity – the future traditional model?• Limited liability• Mixture of external, internal and bank funding• Profits belong to company – reflected in share value• Lower tax rates on retained profits • Separation of ownership, management and
employment• Goodwill recognised• Public disclosure
Categories of Partner
1. Full partners – “equity partners”
2. Limited partners
3. Fixed share partners
4. Fixed share equity partners
5. Corporate partners
6. Sleeping partners
7. Salaried partners
8. Shadow partners
9. Non resident partners
10. Trusts
11. Companies
1. Designated Members
2. Equity Members
3. Non-equity Members
4. Fixed Share Members
5. Restricted Members
6. What happens to Salaried Partners?
7. What happens to Associates?
8. Can you have directors?
9. Promotion and demotion?
Categories of Members
Things to Consider
• The business • Is it trading or investment?• Assets held• Risk• Profit retention• The owners• Residence• Domicile status• Management
• Tax position
(losses/other income)• Family position• The employees• Key talent• Incentive plans• Retention strategies• The future • Growth, succession and/or
exit strategy
Comparing the options
Sole Trader
GP LP Ltd LLP
Separate legal personality
N N N Y Y
Tax transparent Y Y Y N Y
Limited liability N N Y Y Y
Audit N N N Y Y
Publicly available accounts
N N Y Y Y
Loss relief against personal income
Y Y Y N Y
Employment legislation
N N N Y N
Requirement to have written constitution
N N N Y N
Comparing the options 2
Sole Trader
GP LP Ltd LLP
Entity owns assets and owes liabilities in own right
N N N Y Y
Distinction made between ownership and management
N N Y Y N
Able to have tax efficient incentives
N N N Y N
Ability to give floating charge over assets
N N N Y Y
Transferable shares N N N Y N
Restrictions on repayment of capital
N N N Y N
Income tax charged on retained profits
Y Y Y N Y
Tax Drivers
Highest rate of income tax
Employers National Insurance
Corporation tax (small companies/full rate)
Capital gains tax
2012/13
50%
13.8%
20/24%
10/18/28%
2013/14
45%
13.8%
20/23%
10/18/28%
Tax Drivers
Some Partnership Tax Issues
• LLP trading losses:– Belong to the member rather than the LLP– No loss relief available to the LLP – the member will claim
appropriate tax relief in their tax return• Capital gains for members can arise:
– Disposal to third party– Distribution of assets to a member– Changing profit shares and adjustments posted through
accounts– Changing profit shares and payments made between
members
Corporate & Hybrids - Professions
Professionals face commercial challenges:
• Need to generate capital internally
• Attracting external investment• How to provide for employee
participation through tax effective remuneration
• Building capital value• Retention and incentivisation
of new or existing partners
Hybrid Structures – Established Businesses
• LLPs - hybrids• Partnerships/LLPs - corporate
partners• Company - LLP subsidiaries• Company - LLP hive downs• VC/PE partnership and real
estate partnerships and funds• Company - incorporation and
dis-incorporation
Hybrids - Service Companies
• Used as a vehicle to provide professional and support staff • Possibly practice services - e.g. HR, marketing etc• May be commercial advantages of operating a service
company as part of a growth or acquisition strategy• Service company re-charges at cost or small margin• Adjust taxable profits under transfer pricing rules
Corporate & Hybrids
• Introduction of a corporate member• Corporate has a share of LLP profits• Retains working capital at lower tax rate• After tax cash can be contributed to the LLP • Possibly recycle members’ capital• Flexibility for rewarding members• Incentivise employees through share ownership
LLP Structures
LLPLLP
Member A
Member A
Member B
Member B
Member C
Member C
Limited CompanyLimited
Company
Subsid A
Subsid A
Subsid B
Subsid B
AA BB CC
LLP Sub A
LLP Sub A
LLP Sub B
LLP Sub B
Holding CompanyHolding
Company
LLP Structures
LLPLLP
Member A
Member A
Member B
Member B
Member C
Member C
Limited CompanyLimited
Company
Subsid A
Subsid A
Subsid B
Subsid B
AA BB CC
LLP Sub A
LLP Sub A
LLP Sub B
LLP Sub B
Holding CompanyHolding
Company
Outside InvestorOutside Investor
Hybrids – Private Equity
General PartnershipLimited Partnership
LLP
General PartnershipLimited Partnership
LLPFund VehicleLimited Partnership
Fund VehicleLimited Partnership
UK AdvisorLLP
UK AdvisorLLP
General PartnerCompany
General PartnerCompany
Principals
Principals
Portfolio Investments
Fee
Services
How to remove?
• Directors are employees with full employment rights
• Partners and members are self-employed with only discrimination rights
• Good employment contracts• Good partnership and
members’ agreements• De-equitisation• Expulsion
Summary
• Pros and cons to all structures• What is important?
– Flexibility– Incentivisation– Privacy
• Tax implications• Hybrids can give some benefits of all options
mark.briegal@aaronandpartners.com
01244 405563
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