It’s common practice for a spouse to be added as a shareholder in a limited company particularly where there can be tax efficiencies gained.
Whilst the process of adding a new shareholder to a company is straightforward, it’s not right for every married couple and there are a number of important areas to consider before transferring shares to a spouse.
The most common reason that a spouse is added as a shareholder in a limited company is to share the dividends that are issued.
Dividends are issued in line with the shareholdings – if there is only one shareholder they would receive 100% of any dividends that are paid. If there is a second shareholder who owns half of the shares then each time a dividend is issued each shareholder would receive 50% of the total dividend.
If an individual is earning over the higher rate tax starting point (£50,270 for the 2022/23 tax year), any dividends falling in the higher rate are taxed at 33.75%. Adding a spouse can make use of their tax free allowance and basic rate tax band. Dividends in the basic rate are taxed at 8.75% which is a difference of 25%.
Note: these figures are based on 2022/23 tax year rates and thresholds.
For extra tax efficiencies, the tax free allowance could also be utilised by paying a salary to a spouse if they are helping out in the business. Any salary paid should be at market rate and reflect the work carried out i.e. what an unconnected individual would be paid to carry out the same role.
It’s worth noting that if the spouse already has income from outside the company which utilises the basic rate tax band, such as employment income, there is unlikely to be much of a tax saving by involving them in the business as a shareholder or employee.
Spousal Exemption and Arctic Systems
HMRC has specific legislation in law called Settlements Legislation. This is designed to prevent income shifting. In basic terms, income shifting is giving personal income to another individual who pays tax at a lower rate.
An example of this is gifting shares to a family member. If the person giving the shares receives a benefit, such as paying less tax, and it’s not an arm’s length transaction then HMRC can look to apply Settlements Legislation and tax the person giving the gift on all dividends received by the family member.
Many years ago, there was a famous case called Arctic Systems, which involved a husband and wife. The husband was working as an IT consultant through a limited company and his wife carried out administrative work in the company.
HMRC lost the case because although the court agreed there was a settlement, the spousal exemption applied. There are a few conditions that need to be met for the exemption to apply:
- The shares in the company should have full rights for voting, dividends and capital distribution
- The shares should be an outright gift – any dividends paid out should be the spouse’s to use as they wish and not just a way of rerouting the funds back to the main shareholder
- The couple must be living together
Whilst an exemption can apply, it’s important to be aware of the rules and operate with best practice. An example of this is to ensure that the dividends paid are paid directly to the spouse’s personal bank account.
Dividend waivers and creating different share classes should also be considered carefully; it could be argued that these are ‘wholly a right to income’ and maybe more likely to attract HMRC attention.
If the shareholdings are changed frequently, for example if a spouse’s other income changes year to year and the shareholdings are changed to help keep dividends within the basic rate tax band, HMRC will take interest. Our advice is to decide on the percentages from the start where possible and then stick to these to avoid any red flags.
There are some non tax related practical points that should be considered before shares are transferred to a spouse.
It’s often not an easy thing to talk about, but one of the main considerations is around what would happen in the case of separation and/or divorce. To make use of the spousal exemption, as mentioned above, the shares should have full rights in terms of voting and capital distributions; they are effectively an outright gift and you’d need to be comfortable with giving away part of your company.
First published in Contractor UK