Corporate Governance & Regulation

A Close Company is broadly defined as a company that is controlled by:

• five or fewer participators or
• any number of participators who are also directors or
• where more than half the assets would be distributed to five or fewer participators, or to participators who are directors, in the event of the winding up of the company.

A participator is broadly somebody who has a share or interest in the capital or income of a company, such as having share capital, voting rights or a right to capital on winding up of the company. This can be a shareholder, director or a loan creditor.

Most small private companies will meet the definition of a Close Company and there are some specific tax rules that apply to these companies, for example, where a close company pays for personal expenses of a director, or makes a loan to one of its participators.

Limited Liability Partnerships (LLPs) retain the flexibility of a partnership with the added advantage that a partners personal liability is limited. At least two members must be ‘designated members’ and the law places extra responsibilities on them.

For Capital Gains Tax purposes, the transfer of a business from a partnership to a LLP will not constitute a disposal by the partners of their interests in the original partnership’s assets unless their fractional interests in partnership assets are changed as a result of the transfer.

In addition, the transfer to an LLP of a partner’s rights to an annuity and/or the transfer of obligations to former partners in respect of annuities will, not be regarded as a chargeable disposal by the original partnership provided that the rights remain substantially the same.

The formation of an LLP is generally more complex and costly than that of a conventional partnership. Problems can still arise when there are disagreements between the members. There is also the prospect of paying more tax on high profits than for companies.

Since April 2018 company directors and other eligible people such as company secretaries, people with significant control (PSC) and LLP members can apply to remove their personal addresses from the UK’s official company register on Companies House.

Prior to the introduction of this law it was only possible for a director to ask for their personal address to be hidden from personal view if they could demonstrate that they were at a serious personal risk of violence or intimidation.

Company directors and others are still required to provide an alternative correspondence address if they are appointed to a live company. If they are no longer appointed to a company, then an alternative address is not required and only the first half of their postcode will be made available to the public.

Planning note

There is a charge of £55 per document where a director wants to suppress their home address. The option to remove your home address from the public register is not available if the home address is the same as the company’s registered office address.

There are Late Filing Penalties which are designed to encourage companies to file their accounts and reports on time. The penalties were first introduced in 1992 and were significantly increased from February 2009. All companies, private and public, large or small, trading or non-trading must send their accounts to Companies House. The late filing penalties guide has recently been updated although there have been no changes to the penalty amounts.

The table of penalties for late submission is as follows:

How late are the accounts delivered	Penalty – Private Company	Penalty – PLC
Not more than one month	£150	£750
More than one month but not more than three months	£375	£1,500
More than three months but not more than six months	£750	£3,000
More than six months	£1,500	£7,500

 
Failure to file confirmation statements or accounts is a criminal offence, and which could see directors personally fined in the criminal courts. Late penalties which are unpaid will be referred to collection agents and may result in a County Court judgement or a Sheriff Court decree against the company.

It is possible to appeal against a penalty, but it will only be successful if the appellant is able to demonstrate that the circumstances of the late filing were exceptional.

A Company Voluntary Arrangement or CVA is a special arrangement that allows a company with debt problems or that is insolvent to reach a voluntary agreement to pay its business creditors over a fixed period of time. The arrangement is similar to the more well-known Individual Voluntary Arrangement (IVA) that can be used by a sole-trader or self-employed person who is unable to pay their debts.

An application for a CVA can only be made with the agreement of all directors of the company in question or all of the partners of a limited liability partnership (LLP). A CVA can only be realised by using an insolvency practitioner who would be responsible for setting up the arrangement and administering it.

Once an insolvency practitioner has been appointed, the following steps will take place:

1. The insolvency practitioner will work out an ‘arrangement’ covering the amount of debt the company can pay and a payment schedule. They must do this within a month of being appointed.


2. The insolvency practitioner will write to creditors about the arrangement and invite them to vote on it.


3. To get a CVA, it must be approved by creditors who are owed at least 75% of the overall debt.

If the agreement is approved and the company does not meet the terms of the CVA, then any of the creditors can apply to have the business wound up.

After the end of its financial year, a private limited company must prepare full annual accounts and a company tax return. The deadline for filing the first set of accounts with Companies House is 21 months after the date the company was registered with Companies House. Annual accounts must be submitted 9 months after the company’s financial year ends.

There is a fixed date for the payment of Corporation Tax which is 9 months and 1 day after the end of the relevant accounting period. Note that a company is usually required to pay the tax due in advance of the filing deadline for a company tax return.

In most cases a company’s tax return must be submitted within 12 months from the end of their accounting period. Online Corporation Tax filing has been compulsory for company tax returns delivered after 31 March 2011 for accounting periods ending after 31 March 2010. Company tax returns have to be filed using the iXBRL data standard using either HMRC’s own software or third-party commercial software.

The accounting period for Corporation Tax is usually the same 12 month period as the company’s financial year.

Any property, cash and other asset owned by a company when it is dissolved automatically passes to the Crown as ownerless property. This process is known as ‘bona vacantia’ which literally means vacant goods. The bodies that deal with bona vacantia claims vary across the United Kingdom, but they all ultimately represent the Crown.

There are a number of scenarios where you may be able to claim or buy an asset belonging to a dissolved company by asking the relevant body representing the Crown. This is known as ‘referring’ an asset.

Anybody can refer an asset, for example if:

• you’re the leaseholder of a property where the company owned the freehold
• you want to buy or are affected by land owned by the company
• you want to buy other assets of the company like shares, trade marks or copyrights
• you’re a shareholder trying to get cash held by the company

A new one-stop service to register a company and register for tax at the same time has been used by more than 200,000 businesses since it was introduced. The introduction of the Streamlined Company Registration Service was announced as part of the Small Business, Enterprise and Employment Act 2015 to help reduce administrative burdens and came into effect last year. However, there remain many new companies who have not used this service.

A business cannot operate as a limited company until it has been incorporated at Companies House under the Companies Act 2006. There are three ways to incorporate a company, by electronic software filing, web incorporation service and paper filing. The cheapest and most popular methods of doing so are electronic.

Under the new online service, businesses registering with Companies House, can also register for tax and HMRC’s digital services, making it easier for new start-ups to fulfil all their legal obligations in one go. This service removes the need for businesses to send duplicate information to both Companies House and HMRC when registering for Corporation Tax, and also to register an employer for Pay As You Earn (PAYE) tax.

Mel Stride MP, Financial Secretary to the Treasury, said:

‘HMRC and Companies House are working hard to make business registration and tax easier. Previously, the same information would need to be entered into a number of different platforms to register a company and register for tax, we have simplified that process.’

As well as filing accounts with Companies House, there is a requirement to check that the information Companies House stores about your company is correct every year. This is facilitated by the filing of an annual company confirmation statement. The confirmation statement was introduced in June 2016 and replaced the more cumbersome annual return.

A confirmation statement must usually be filed once every 12 months and rather than resubmitting data every year, the statement only needs to be updated if there are changes to report. If there are no changes then you just need to confirm the information is correct and submit the statement.

The following details need to be checked:

• the details of your registered office, directors, secretary and the address where you keep your records
• your statement of capital and shareholder information if your company has shares
• your SIC code (the number that identifies what your company does)
• your register of ‘People with Significant Control’ (PSC)

Any necessary updates to the statement of capital, shareholder information and SIC codes can be made when submitting the confirmation statement. However, the confirmation statement cannot be used to report changes to your company’s officers, the registered office address, the address where you keep your records, people with significant control. These changes must be filed separately with Companies House and this should be done at the same time or prior to submitting the confirmation statement. The confirmation statement can be filed online (at a cost of £13) or by post (at a cost of £40).

Companies House will send an email alert or reminder letter to the company’s registered office confirming the due date for the statement. The confirmation statement can be filed for up to 14 days after the end of the review period. There can be fines of up to £5,000 for a late filing. Companies House has the power to prosecute a company and its officers for failing to submit a confirmation statement. A company can also be struck off the register.

Business rates are charged on most non-domestic premises, including most commercial properties such as shops, offices, pubs, warehouses and factories. Some properties are eligible for discounts from the local council on their business rates. This is called business rates relief. There are a number of reliefs available, including small business rate relief, rural rate relief and charitable rate relief.

In England, small businesses rate relief is available on properties with a rateable value up to £15,000. Small businesses that occupy property with a rateable value of £12,000 or less pay no business rates. There is a tapered rate of relief on properties with a rateable value up to £15,000. Relief is usually only available to businesses with one property but can be extended under certain limited circumstances.

In Scotland, the relief is known as the Small Business Bonus Scheme (SBBS).  Business rates relief through the SBBS scheme is available if the combined rateable value of all business premises is £35,000 or less and, the rateable value of individual premises is £18,000 or less.

The Welsh small business rates relief scheme came into force on 01 April 2018. 100% rate relief is available to eligible businesses premises with a rateable value of up to £6,000 and a tapered relief is available on properties with a rateable value between £6,001 and £12,000.

In Northern Ireland, the Small Business Rate Relief (SBRR) scheme is available. Eligibility for the SBRR is based on the Net Annual Value (NAV) of business premises. There are three levels of SBRR where the reductions in rate relief range from 50% to 20%. No relief is available for properties with a NAV of more than £15,000.