What our Clients say about us...

Conveyancing - Would just like to say thanks to you and Breeze and Wyles team for making this possible. I would also like to note that the online service provided was very helpful, being able to logon to the site and see what has been completed and what is still required I found to be very helpful and comforting.

Take care all the best for the future.

Mr L

 

 


yet another happy client

Conveyancing - I just wanted to drop you a quick line to say thank you for all your assistance with the successful completion of the sale of my property.

It was a pleasure working with you on this and I will recommend you and use you again for future projects.

All the best.... have a fantastic week.

Thanks

Ms R

 


To New Adventures...

Conveyancing

Amazing !!!

Thank you very much Lauren for everything.

You made it so easy and stress free.

You were a star throughout.

Thanks again and thank you for your kind words.

To new adventures! :-)

Mr and Mrs G


Another happy client

Conveyancing - I just wanted to say a huge thank you for your wonderful service in getting my house to completion so smoothly.

Even friends in same house buying process commented on how smoothly the solicitors side of thing was and went for me - I felt reassured with all the constant updates, never had to chase you for anything and because of the way you managed the admin process, I only had to fill in forms once and your reassured me along the way the status of everything. If I had a question it was answered and I didn't have to wait for a reply! So Thankyou... Buying a house, especially your first one is nerve racking, but your team took the edge off that!

You have set the standard ! Thank you.

Mrs W - West Sussex


Conveyancing Testimonials

Conveyancing - Sherri really has been fantastic from start to finish. As first time buyers, this is such a big step for us and it made the whole thing so much smoother having Sherri support us through the whole process. From offering us advice, to keeping us up to date and informed with how our purchase was progressing – I can certainly recommend the whole team at Breeze and Wyles without hesitation and will definitely use them again.

Please pass on my thanks again to Sherri and the team.

Mr R


Conveyancing Testimonial

Thank you for all your hard work and your professional manner in helping us to complete the purchase of our home.

I will be using you again and will also pass on details to family and friends.

Once again thank you 

Mr E - Manchester


Facing Personal Liability for 'Smelting the Assets Transactions'

This is the next in my series of blogs for The Directors Friend.

SUMMARY:

In respect of a risk under Section 423 of The Insolvency Act 1986 (the “Act”) a Director must be very mindful where their own interests in respect of a company take precedence over those of the company or perhaps creditors as a risk of personal liability (amongst other risks that may follow).  In this particular case, we focus upon where the company assets are moved with the objective of putting assets beyond the reach of or otherwise prejudicing the interests of persons making or who may make a claim against the company.

BACKGROUND:

This case (Henry George Dickinson and NAL Realisations (Staffordshire) Limited and others [2017] EWHC 28(Ch)) concerned a company Norton Aluminium Limited (“Norton”) which operated an aluminium smelting foundry in Staffordshire. Norton went into Administration following the circulation of a draft judgment that upheld in part claims of nuisance brought by a group of local residence against Norton.  The Managing Director and controlling shareholder of Norton Mr Dickinson brought the claim to recover in the liquidation various sums totalling just over £1M which he alleged were due to him and secured by debenture over Norton’s assets.

Materially for this article the liquidators brought various counterclaims to include setting aside or recovering compensation for transactions entered into in 2010 to include that Norton bought back most of its shares from Mr Dickinson and connected parties for £2.5M, which was left outstanding as a secured loan and again materially Norton sold a subsidiary (North Castings Limited) to Mr Dickinson for £1, which was alleged to be at an undervalue.

Section 423 of the Act is concerned with transactions that defraud creditors that the Court has jurisdiction to review.

NOTABLE COMMENTS BY THE JUDGE:

His Honour Judge David Cook made various findings in respect of Section 423 from paragraph 95 onwards to include as follows:

In respect of the share buyback:

(1) At paragraph 105 the Judge commented that he was satisfied that Mr Dickinson had embarked on the various transactions now challenged in order to ensure that if the worst came to the worst he would be able to retain control of the business and its future profit potential and little would be available in the terms realisable assets from which an adverse judgment could be satisfied. This, the Judge found, was not merely a substantial purpose but the dominant one in Mr Dickinson’s mind.

(2) At paragraphs 109 and 110 the Judge found that net assets in the accounts of circa £2.7M did not disprove the Section 423 purpose as there was nothing in the evidence to disprove that.  In fact, the Judge found that there was evidence to the contrary.

(3) At paragraph 111 the Judge found that the converting of the rights of shareholders into claims for secured debt both prejudiced the interests of the environmental claimants and put assets beyond their reach by ensuring that shareholder debt had prior claim on the assets.  Thereby the pool of liabilities was increased and therefore Mr Dickinson’s dominant intention and therefore the buyback fell within Section 423 and that the Court may order relief.

THE NORTON SHARES

In respect of the Norton shares at paragraph 145 onwards the Judge found that he could also exercise the jurisdiction under Section 423.

Interestingly relief was not available under section 1157 of the Companies Act 2006 and the reason for that (as set out at paragraph 154) was that Mr Dickinson’s ...”liability arises because he was party to the transaction that is to unwound, not because he was a director.  It would be illogical to have a power to grant relief in favour of a beneficiary of a transaction who happens to be an officer of the company where no such power will exist in favour of an equally honest outsider”.

COMMENTS:

Be aware that there is no requirement for the application of Section 423 that the company be insolvent, in liquidation or in administration.

Following this decision it can be seen that a director who is found to have had a dominant intention to put assets beyond reach of persons bringing a claim or prejudicing the interests of persons bringing a claim in these particular circumstances is at risk of being found liable for these transactions and it shows the risks of that director.  However, with the early and right advice the well-advised director could mitigate or perhaps avoid this outcome.

WHAT TO DO NOW:

If you are faced with insolvency issues with your company, a claim for transactions defrauding creditors or a transaction at under value claim for personal liability please talk to me today.  That is in order to protect your position without delay.  The earlier that you speak with me the more that I can help.  Why not call me today on 01992 558411 and speak to me without obligation, protect your costs.

If you are happy to instruct me my firm and I are happy to talk to you about fixed fees or staged fees that are agreed with you in advance of any work being carried out or we can liaise with your insurers. Your work will be carried out by me or others under my close supervision. I am happy to come to you to take instructions. My firm is based in London and Hertfordshire, here in the UK.

YOUR ADVISER

Finally, is you advisor a practising solicitor (and thus insured to advise you – check with the SRA) and if so is your solicitor a full member of the Insolvency Lawyers Association (‘ILA’) (ask them). Membership of the ILA is a public mark from insolvency peers that your representative has the requisite knowledge, skill and experience to advise you. I am both. Accept no substitutes.

Until the next time...

THE DIRECTORS FRIEND


Taking time to take stock pays off in inheritance tax planning

bankingAs the end of the tax year approaches, it’s a good time to make sure you’re maximising your opportunities for inheritance tax reliefs. This year, as well as taking advantage of exempt lifetime gifts and transfers, property owners should also look at how the new transferable residence nil rate band fits their profile.

The Residential Property Nil Rate Band

Under the new rules, when a person leaves a residential property to direct descendants there will be an additional nil-rate band for inheritance tax purposes – the transferable Residence Nil-Rate Band allowance (RNRB).

To qualify, the property must have been a residence of the taxpayer and be left to direct descendants, so that excludes brothers and sisters, nieces and nephews. It will include natural, adopted, step and foster children, grandchildren and remoter descendants.  The spouse or civil partner of a living or dead direct descendant may also be the beneficiary, unless they have remarried.

The RNRB will be available from April 2017, in a phased introduction over the next four years, starting at £100,000 per person. This additional IHT nil-rate band for residential property will be on top of the £325,000 per person nil-rate band, which continues to apply to all assets in your estate, regardless of their nature and without restriction on who inherits the assets.

Like the existing nil-rate band, the RNRB will be transferable to a surviving spouse or civil partner, if unused on the death of the first to die, as long as the first to die owned the property or a share in it. A transferable RNRB will be available even where a spouse has died before April 2017 and in this case, the property does not have to have been held in joint names.  By 2020, the RNRB will be £175,000 per person, giving a potential total IHT nil-rate allowance of £500,000 for a single person or £1m for a couple who satisfy the criteria. These RNRB figures are maximum figures: if the value of your house, or your share in a house, is less, then that lesser value will be your RNRB.

The potential savings are significant – by 2020, the estate of a couple could see a saving of £140,000 in inheritance tax where all criteria are satisfied and the maximum RNRB allowance is utilised. So, in tax planning terms it’s high priority and it is worth making sure your estate doesn’t miss out on the allowance if you are a potential match on the criteria.

What may not qualify for the allowance

The additional residential property relief will taper away once an estate is valued at £2m, and estates worth over £2.35m will not benefit, and neither will certain types of trusts. The treatment of trusts has been subject to review since the original announcement of RNRB, as it was not clear initially how they would be treated.  Trusts are frequently used to protect assets, for example when children are young or otherwise not fully capable of handling their affairs, or to provide for a new spouse after re-marriage while still making sure assets pass to children of an earlier relationship.   It’s now been clarified that the RNRB will be available where beneficiaries of a trust are direct descendants and the trusts provide an absolute right to benefit, or where a disabled person is the main beneficiary, but will not be available for so-called discretionary trusts.  As the position is complex, anyone who has any form of trust in their will should make sure that it is still the best arrangement.

People will be allowed to sell a larger house and still retain the relief from inheritance tax, as the Government are keen to encourage older owners to down-size to free up larger properties. Only one downsizing move may be taken into account, so if there are several downsizing moves between 8 July 2015 and the date of death the executors can choose which is to be used for the purpose of the RNRB.  Downsizing can include disposing of part of a property, for example part of your garden.

However, to hold on to the relief after downsizing, the proceeds of the downsizing cannot be passed to a direct descendant during a person’s lifetime, as the relief will not apply to reduce the tax payable on lifetime transfers that are chargeable on death within seven years of the gift. Again, this is rather complicated and requires specialist advice.

Gifts and exemptions

More straightforward is the opportunity to mitigate inheritance tax by making smaller gifts or out of surplus income.

Everyone can make use of the £3000 per annum annual exemption which can be used to make gifts up to the total each year, and if the allowance is not used fully in any year, it can be carried forward one year.

On top of the annual exemption, the rules on small gifts allow individuals to gift up to £250 per recipient per year with no limit to the number of recipients.   However, if you give more than £250 to any individual, you lose the exemption completely, even on the first £250.   And you can’t use your small gifts allowance together with any other exemption when giving to the same person.

Looking at these two allowances together, if you had three children, ten grandchildren and four godchildren, you could make gifts of £1000 to each of your three children by using the annual exemption of £3,000 for all such gifts.  Then you could give up to £250 per year to each of your grandchildren and godchildren using the small gift exemption.  You cannot make an exempt small gift to your children as you have already used the annual exemption to make a gift to them.   These allowances are automatic, but it’s a good idea to log and track the gifts as it makes it easier for your executors and simplifies dealing with HMRC.

Another opportunity is relief on gifts made out of surplus income, but the exemption for these gifts must be claimed by your executors after your death. Here, good record-keeping is vital, because to qualify as normal expenditure out of income it must:

  • Be part of a regular pattern of giving
  • Taking one year with another, be made out of income
  • After the gifts and other usual expenditure, you must be able to maintain your normal standard of living

So, to make such payments, you need to record in writing that you intend to make the gifts regularly and then keep a record of income and outgoings so that your executors will be able to demonstrate that you had surplus income from which the payments were made. Examples of the sorts of payments range from regular monthly payments to a grandchild’s savings account or payment of school fees through to regular gifts on special occasions.

Any other lifetime gifts you make, other than gifts into a trust, are known as potentially exempt transfers (PETs).  A PET becomes an exempt gift if you survive the making of the gift by seven years.  However, if you die within seven years of making the gift, the value must be brought into account when calculating inheritance tax due from the estate.  Tapering relief may be available on the tax attributable to PETS if you die more than three years after the gift, but only if the total value of the lifetime gifts made in the seven years before your death exceeds the nil rate band in force at your death.

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If you’re concerned about inheritance tax and hope to mitigate it through gifting, asset transfer or the new residential property allowances, it’s important to check the position regularly. Getting it right, and reviewing any existing will, is key to making sure reliefs are maximised. Give or Private Client Team a call on 01992 558411 to discuss it further.

Check list for the new inheritance tax residential nil rate band

 

  • You have direct descendants and intend to leave your residential property to one or more of them on your death
  •  You have a total estate worth more than the current £325,000 IHT nil rate band per person threshold, but less than £2.35m overall
  • You have downsized or sold your residential property, or intend to, where the sale took place after 8 July 2015 and you have retained the proceeds

 

ENDS
Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Reference:

Clause 9 of the Finance Bill (2) 2015

https://www.gov.uk/government/publications/finance-bill-2015-public-bill-committee

http://www.publications.parliament.uk/pa/bills/cbill/2015-2016/0057/16057.pdf

https://www.gov.uk/government/publications/inheritance-tax-on-main-residence-nil-rate-band-and-downsizing-proposals-technical-note/inheritance-tax-on-main-residence-nil-rate-band-and-downsizing-proposals-technical-note

https://www.gov.uk/inheritance-tax