One important area for Advanced Tax and BPT exams is buyback of shares.

The important aspect to appreciate here is the taxpayer does not have the option of making an election.

If certain conditions are satisfied (unquoted trading company, shares owned for 5 years, taxpayer is UK resident, buyback is for the purpose of company’s trade, there is a substantial reduction in shareholding -at least 25% and finally after the buyback the shareholder does not own more than 30% share capital) then the buyback is treated as a capital gain.

The benefit here is as the shareholder is employed by the company and owns at least 5% OSC for 2 years, business asset disposal relief is available and the gain up to £1M is taxed at a low rate of just 10%.

If the conditions are not satisfied, the buyback is treated a dividend. This means that the first £2,000 will be taxed at 0%. Thereafter, dividends in the higher rate band are taxed at 32.5% while dividends in the additional rate band will be taxed at 38.1%.

Marcia is an additional rate taxpayer and has owned her shares for 5 years. Due to a director dispute, the company has decided to buyback her all her 35% shareholding.

As all the conditions are satisfied, this is automatically treated as a gain for Marcia. (Assume the gain is £1M).

The capital gains tax payable will be (£1M -£12,300) x 10% = £98,770

If Marcia only owned the shares for 4 years, then the conditions would not be satisfied and the £1M would be treated as a dividend.

The income tax payable will be (£1M- £2,000) x 38.1% = £380,238.

The dividend route results in an extra tax liability of

(£380,238 – £98,770) = £281,468.

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