By Tim Housden
With technology as it stands today, it has never been so easy to set up a new business venture. It’s possible to have a great idea in the morning and be fully registered, compliant and even have a bank account by lunchtime. However, speed does not always give the best tax result or the optimum business structure.
Having established whether a concept is viable, the key drivers for the majority of tech start-ups are cost control, equity structuring, rewards, and exit planning.
In some circumstances it can prove to be commercially and fiscally advantageous to use a combination of trading or ownership vehicles e.g. a Holding Company to protect intellectual property, or a Limited Liability Partnership for early stage loss utilisation. Other entities are available including offshore vehicles that may be necessary to access other markets or provide a compliance vehicle.
However, in 99% of cases the default trading vehicle for tech businesses is a Limited Company and this is explored in more detail below.
With all incorporations, there are basically two chosen routes – an off the shelf company, or a bespoke new company. With the former you are merely acquiring something that already exists and has a history, albeit subscriber shares being issued. With the latter it is a new creation that records you as first director and shareholder. Bizarrely, something as simple as making the wrong decision between these two options can cost tax!
A number of problems can arise from those very first share issues when the company is formed, and from other fundraising rounds as well.
Amongst, and possibly the most commonly complained about, are valuation and tax problems with HM Revenue and Customs, disparity with perceivably too much dividend or capital being paid to the wrong shareholders, and excessive personal tax being paid as a result of missed remuneration extraction opportunities.
From third parties the gripes generally include failure to achieve venture capital reliefs via Enterprise Investment Scheme (EIS) or its more exciting younger sister Seed EIS (SEIS), or missing opportunities to lock in and reward key staff via the very tax advantaged government approved Enterprise Management Incentive scheme (EMI).
The above are all avoidable problems if proactive advice is sought before final decisions are enacted.
Before charging ahead and incorporating a new company, it is worth considering some different areas that may have an impact later:
• Be clear on what you are intending to achieve from the business. If it is a growth business rather than lifestyle business, make a decision on what percentage of the business you are ultimately prepared to give to other shareholders, investors or employees to achieve your goal and in what timeline.
• Prioritise any family and friend tax planning issues before founder shares are issued. It’s usually too late closing the stable door once the horse has bolted.
• Ensure that any external funding is as tax attractive as possible for the investor e.g. EIS or SEIS. One mistake in the history or paper trail can cause lost tax reliefs and unhappy investors.
• External funding invariably creates a need for some form of due diligence. This is a protection for not only the investor, but the company and other shareholders as well. Paper trail and compliance is generally key, so don’t forget that legal fees need to be paid.
• If you intend to have employees, try to tie in key personnel with tax advantaged option schemes. EMI, for example, can be subject to forfeiture or only exercisable on the sale of the business, meaning no immediate equity issue and no unwanted shareholder if the employee leaves.
• Regularly review how remuneration and benefits are drawn. Structuring effectively can lead to a higher net personal disposable income at no extra cost to the business i.e. less tax and national insurance burden for the company and the individuals concerned.
• Don’t forget that tax law changes. “Being cute” today does not always have the desired effect in five years time. Watch for legislative change and talk to your professional advisors on a regular basis.
• If you do need money to get the venture off the ground, is it better to finance it all personally, raise money from external shareholders, or traditional loan and finance mechanisms such as banks or mortgages. Part of the decision process here is clearly what funds are available and at what cost. From the investor’s point of view, it is gambling and they have to balance their risk and reward too.
• As in life, business is “fluid” as well. Allow for the unexpected, but don’t always use it as an excuse to prevent you from doing something. The best ideas of today and tomorrow are probably concepts that were thought of a long time ago, but were side-lined as technological or scientific proof at that time rendered them unachievable.
• Research and Development Tax Credits are only available to a Limited Company. Like all government approved schemes, the legislation is quite harsh in determining what make a qualifying activity.
If you don’t understand what your accountant or adviser is explaining, ask again. As owner of the business you are responsible for making informed decisions, which is difficult to do if you don’t understand what the problem is or what the information means. That said, a good adviser should ensure that the information and explanations are relevant to you and in a format that will give you the detail you need.
In some respects, it is easier to approach building a business like building a wall. Good foundations are necessary, and it generally helps to know how high you want the wall, what colour the bricks will be and what the purpose of the wall is. Trying to change things afterwards can be nigh on impossible and, in some cases, you have to demolish and start again. Good professional help and guidance during the life of the business should ensure that it is fit for purpose and lasts as long as it should.
About the author
Tim Housden is Tax Director at THP Accountants. Tim Housden – Tax Director, THP Accountants. As Tax Director, Tim is in the process of building up two new divisions within THP – THP Tax Solutions LLP and THP Wealth Structuring LLP. These projects have given him a much clearer insight into the daily business challenges faced by his clients. Contact details: firstname.lastname@example.org or 0203 207 9078.
THP Accountants has 5 offices situated in Central London, East London, Surrey and Essex, specialising in corporate and personal tax planning.