Out-Law Guide 6 min. read
16 Feb 2021, 4:20 pm
CGT is charged on the gain made from an asset. This gain is calculated by deducting the acquisition cost of that asset, together with any costs associated with the acquisition or disposal such as stamp duty or legal fees, from the proceeds of the sale. So, for example, if an individual bought some shares for £100 and sold them for £1,000, with no other incidental costs of acquisition or disposal, the gain would be £900.
There are special rules that apply to gifts or transactions between connected parties which can deem an asset to have been transferred for its market value for the purpose of CGT. In the case of some gifts of unquoted shares in a trading company or the holding company of a trading group, if conditions are satisfied, holdover relief may be available to defer the resulting gain until the recipient disposes of the shares.
Every individual has an annual tax free allowance. This means that there is no CGT to pay in any tax year if an individual does not exceed this annual exempt amount. To the extent that an individual exceeds their annual exempt amount, CGT is charged on the amount of the excess. The annual exempt amount for the 2020-2021 tax year is £12,300. Most trustees have an annual exempt amount of half the amount that applies for individuals.
Individuals who are not UK resident for tax purposes are not subject to CGT on shares in UK companies, unless they return to the UK within five years of leaving. Non resident individuals are, however, subject to UK CGT on gains on property and land in the UK.
The rate of CGT depends on the amount of an individual's total taxable income and gains from all sources.
CGT is payable at a rate of 20% for higher and additional rate taxpayers and 10% for others, unless business asset disposal relief or investors' relief is available (which will reduce the rate to 10%). When working out whether the lower 10% tax rate is available, any capital gains are added to income. If the higher rate threshold for income tax is then exceeded, 20% CGT will be paid on the gains to the extent that the threshold is exceeded. This means that an individual who pays income tax at the basic rate could pay 20% CGT, if large gains were made in a particular tax year.
CGT is payable at the higher rates of 18% and 28% for residential property not qualifying for the private residence exemption and on 'carried interest'. Carried interest is the share of profits of an investment fund, which typically benefits private equity executives.
Business asset disposal relief, formerly known as entrepreneurs' relief, reduces the amount of CGT to 10% on a disposal by an individual of a business, assets of a business or shares in a company if certain conditions are met.
There is a maximum lifetime limit of £1 million of gains that can be reduced by business asset disposal relief. For assets disposed of before 11 March 2020, the lifetime limit was £10 million.
In order for the disposal of shares in a company to be eligible for business asset disposal relief, certain conditions must be met. Throughout the period of two years ending with the date of disposal of the shares:
For an individual to satisfy the 5% shareholding condition they must own at least 5% of the ordinary share capital and by virtue of that holding the individual must be able to exercise at least 5% of the company's voting rights. In addition either:
These conditions, in particular the 5% shareholding test, are not always easy to satisfy and so it is important to consider whether all the conditions are met for the required length of time.
Business asset disposal relief is not available automatically, and needs to be claimed on or before the first anniversary of the 31 January following the tax year in which the disposal is made.
The conditions must be satisfied right up until the disposal of the shares. Particular care needs to be taken to ensure that the 5% shareholding is not lost before the disposal of the shares, by a dilution of the individual's shareholding, such as on the exercise by others of share options. An individual can effectively 'bank' business asset disposal relief on gains that have arisen up to the date when an investment by an external investor on or after 6 April 2019 causes the individual's shareholding to fall below 5%.
If when the individual sells his shares, some of the consideration is paid by way of an earn out, careful consideration needs to be given to structuring the transaction in order to maximise the amount of entrepreneurs' relief available.
Investors’ relief was introduced in 2016 and applies to individuals who invest in shares of unquoted trading companies, without being involved in the management or operation of the business.
If conditions are satisfied, it reduces the amount of CGT to 10% and there is a separate lifetime limit of £10 million of gains that can qualify.
Detailed conditions must be satisfied. The main conditions are:
For the relief to be available, the investor must hold the shares continuously for a three-year period. For shares issued between 17 March and 5 April 2016, the holding period is extended to 6 April 2019.
There are various other options which might be available to individuals to reduce the tax bill arising on disposal of their shares.
Should an individual have available capital losses made on other investments in the tax year of disposal, or in previous tax years, these can normally be set off against the capital gain. However, if the individual qualifies for business asset disposal relief and has other capital gains it would be more tax efficient to offset the capital losses against gains subject to tax at more than 10%.
To the extent that an individual's annual exemption has not otherwise been used, this will be available to set against their gain. Although, as with capital losses, it may be more efficient to use the annual exemption against gains which do not qualify for business asset disposal relief or investors' relief.
If an individual's spouse or civil partner has not made any significant capital gains in the current tax year, it may be tax efficient to ensure that the spouse's annual exemption is used for the tax year in which the shares disposal takes place.
If a spouse or civil partner gives an asset to another spouse or civil partner, there is no tax to pay on the gift itself. The receiving spouse or civil partner is treated as if they bought the asset for the price and at the time that the other spouse did. To qualify for this arrangement, the spouses or civil partners must be living together in the tax year.
'Spouse' for this purpose does not include unmarried partners living together, other than civil partners.
The transfer to the spouse or civil partner needs to be a genuine gift. On this basis, once the shares are given to an individual's spouse or civil partner, that individual will have no right to have the shares or the proceeds of the sale back.
Should an individual have any plans to reinvest their sale proceeds in small private companies, this could defer the time at which the tax is payable. For more details see the section on EIS reinvestment relief in this guide to EIS. For investments in very small companies Seed Enterprise Investment Relief (SEIS) may provide a 50% exemption for gains reinvested in SEIS shares.