Most businesses will have implemented arrangements to cater for the retirement of their key individuals, and some may also have considered their business succession. Fewer will have considered the effects of the loss of a shareholder of the business through illness or death.
The death of a shareholder can be extremely damaging to any business. The ability to continue trading and maintain the financial well-being of the firm will be vital. In addition, there are other problems that may have to be faced, such as:
- The shareholder’s interest may pass to an heir who may not have the necessary skills, experience or interest to continue in the business.
- The shareholder’s interest may need to be turned into cash to pay Inheritance Tax or provide for his or her dependants on death
Raising the finance to buy a shareholder’s interest may involve the sale of assets or finding someone who can afford to buy-in to the company. Finding a suitable replacement and raising the money can be difficult and time consuming. To this end, it is clear that the remaining shareholders need to retain continuity, stability and control of the business whatever the eventuality. This can be achieved by making adequate legal and financial provision. These steps are outlined below.
Articles of Association
In the first instance the shareholders need to review, and if necessary alter, the Articles of Association to include a share purchase arrangement.
The Share Purchase Agreement
A Share Purchase Agreement is required to enable the surviving shareholders to purchase the shares of the business from the deceased shareholder’s estate and to provide the deceased shareholder’s dependants with a willing buyer and cash instead of an interest in a business. They are usually designed to ensure that funds are available in the right hands for the purchase of a shareholder’s share on death. An effective shareholder’s Share Purchase Agreement should provide:
- Capital that is available in the right hands at the right time.
- Tax efficiency.
There are three ways in which the Share Purchase Agreement can be set up. These are:
- A Buy and Sell Agreement
- Double Option / Single Option Agreements
- Automatic Accrual Method
It is important to consider the circumstances in which these agreements are to operate. For example, the shareholders may not wish them to take effect on a sale of shares at any time, and may prefer instead to have the right of pre-emption i.e. a shareholder wishing to dispose of his shares must offer them for sale to the other shareholders first. For further information concerning each of the agreements highlighted above, I refer you to the technical notes section entitled Share Purchase Agreements in the Appendix of this report.
Company Share Buy-Back
As an alternative to the shareholders purchasing the shares, it is also possible for a company, using one of the above agreements, to buy its own shares when a shareholder dies or wishes to sell their shares, providing of course that the Articles of Association allow it. Company share purchase is subject to a number of legal requirements which are set out in the Companies Acts and the Income and Corporation Act 1988. To this end, it is important that any company wishing to set up such an agreement should seek legal advice.
Generally speaking, the purchase must be funded from “distributable profits”. There are some exceptions to this but purchases funded from capital may cause problems with further legal technicalities. Once the shares have been purchased they are cancelled. They then become unissued share capital. The effect of this is to increase the proportionate holdings of the remaining shareholders.
The overall effect of using a company share buy-back, including the IHT and Capital Gains Tax, is the same as the remaining shareholders buying the individual shares. However the buy-back seems to have numerous disadvantages in that there is an enormous amount of paperwork involved, probably involving expensive legal fees. There is also doubt over the Income and Corporation Tax treatment, which would need to be confirmed with the Inspector of Taxes. The shareholder purchase method is much easier to set up, the tax treatment is generally known, and most Life offices will be able to provide specimen wording for both the agreement and the trust, making it easier for the shareholders to deal with their own legal advisers.
Many life companies can provide specimen wording for this type of agreement. However, I do stress that it is beyond my scope to advise on the suitability of the agreement or its wording. To this end, I would strongly advise that you consult with your solicitor to ensure that the recommended agreement, and its wording, is suitable and sits comfortably with your Shareholder Agreement and your company’s Articles of Association.
Having decided which Share Purchase agreement to use, the next step involves the establishment of a suitable vehicle that can be used to fund the purchase of the deceased shareholder’s share. An insurance policy aims to provide protection against the financial effects of death or earlier critical illness, and will provide the surviving shareholders of the business with a cash lump sum to purchase the deceased’s shareholding / shareholding of the individual who is critically ill, while ensuring that the shareholder who is critically ill is / deceased’s beneficiaries are compensated financially.
As a rule, the life cover should be set up to ensure that the necessary funds are available at the same time as the share purchase arrangements take effect. Each shareholder should be insured to at least the value of his / her share. It is often difficult to value an unquoted company. Two possibilities are:
- Fair value or market value – This is the price that the shares might fetch if sold on the open market
- Fixed value or agreed formula
If you are in doubt of the value of your business, I would suggest that you contact your accountant. Please note a shortfall in life cover would mean the surviving owners making up the difference out of their personal funds. An excess of life cover could call into question the “commerciality” of the arrangement.
Shareholder Purchase in Trust
The policy would be written in trust for the benefit of the other co-owners, the proceeds of which are payable on death or earlier critical illness. The policy proceeds will be paid direct to the trustees who should then be able to distribute them without delay to the remaining owners, to enable them to purchase the outgoing partner’s interest.
A business trust, usually a flexible power of appointment trust written especially for this purpose, can be used. This will help maintain the commerciality of the arrangement. The trust will normally split the benefits in the proportion required by the surviving owners to buy out the deceased’s share of the business / the share of the business of the owner who has contracted a critical illness. Such trusts will also allow for owners leaving the business who wish to take their policy with them, and new owners coming into the business, without the need to change the life policies.
The life company will be able to provide a specimen trust. However, I do stress that it is beyond the scope of Beckett Financial Services Limited to provide advice on the suitability of trusts and their wording. To this end, I would advise that you consult your solicitor on this matter.
Shareholder Purchase Life of Another
This should be for the amount that they would expect to have to contribute towards the purchase of a deceased or retiring colleague’s share. Should one of the shareholders die, the survivor will be paid the sum assured under the policy. Each owner is paying an equitable cost of the protection being provided and so equalisation of the premiums is not an issue.
However it should be stressed that this is relatively inflexible if the business expands and new shareholders are brought into the business. If there are more than two business owners a number of contracts may be required leading to excessive cover levels and costs.
TAXATION OF PREMIUMS
Premiums paid on policies taken out for the purposes of share protection are usually paid for by each director, and therefore do not benefit from tax relief. In terms of Capital Gains Tax, life policies are usually exempt from Capital Gains Tax in the hands of the original owner. From an Inheritance Tax point of view, the proceeds from a share protection policy will not form part of the deceased’s estate, if it is placed under trust, as highlighted above.
As general rule if the company pays the premium, they will not receive tax relief on the premium, as the purpose is share purchase rather than replacement of profits. However, the balancing premise is that the proceeds of any policy should then not be taxable.
Please note that the tax treatment of the premiums cannot be assumed, and can vary depending upon individual circumstances. To this end, I strongly recommend that you contact your local Inspector of Taxes for further clarification on the tax treatment of this arrangement before the policy comes into force.
Beckett Financial Services strongly recommends that we review your business protection on a regular basis to ensure your business protection marries your needs and objectives.
Technical Notes – Share Purchase Agreements
It is vitally important that the partners or shareholders of a business establish a formal agreement which deals with what may happen to their share of the business on their death, and increasingly, in the event of them becoming terminally or critically ill. There are various Share Purchase Agreements available for consideration, a summary of which can be found below.
Buy and Sell Agreement
A Buy and Sell Agreement can be thought of as a prenuptial contract for businesses, specifying what happens if things go wrong. The buy/sell triggers are agreed and defined by shareholders or business partners with legally binding clauses, declaring who may buy and at what price an interest in the business will be sold.
If death is the trigger, the deceased’s estate then sells and the surviving business partners are obliged to buy the deceased’s share of the business, using a pre-agreed method of valuation.
For example Bob and James are equal shareholders in a business. If Bob dies, his share would form part of his estate. With a Buy and Sell agreement in place, the estate would be reimbursed for the agreed value of Bob’s shares (avoiding the lengthy issues associated with probate), and the actual shares would revert to James. HM Revenue & Customs treats this as a contract for sale. This means the loss of Business Property Relief for IHT purposes, but this agreement can operate on retirement as well as death.
The buy sell method is simple and easy to understand. However, it may increase Inheritance Tax liabilities because of the loss of business property relief.
Double Option / Single Option Agreement
Double Option Agreements are also known as ‘cross-option’ agreements. The surviving partners have an option to purchase and the estate to sell shares within a pre-determined time, during which the estate is bound not to sell them to anyone else.
Most Double Option Agreements provide only for death, not serious illness (although this agreement can operate on retirement).
To provide cover against critical illness, a Single Option during a lifetime agreement may be preferable. This offers a shareholder the freedom to decide whether to stay in the business or simply be reassured that the other partners / shareholders are bound to buy the shares.
In both cases, Business Property Relief is not lost as HM Revenue & Customs do not view these agreements as contracts for sale.
The double option agreement has the benefit of allowing the surviving partners an enforceable option to buy the deceased’s share, but with the added advantage that the agreement does not disqualify the value of that share for business property relief.
Automatic Accrual Method
This method is mainly used by partnerships. It does not involve the purchase or sale of shares – instead, the deceased’s shares pass automatically to the remaining business partners.
All business partners take out life policies to compensate the estate, and these policies can be put into trust to ensure benefits go to chosen beneficiaries.
For example, Peter, Nick and Wendy are all partners in an estate agents’ business. On Peter’s demise, Nick and Wendy automatically receive his share of the business and it is divided equally between them.
Automatic accrual is flexible but relies upon each partner maintaining their own policy for the current value of their partnership interest.