Share buy-back clearance applications

Most payments a company makes to its shareholders, in respect of their shares, will be qualifying distributions and be subject to Income Tax.

However, if certain conditions are met, the payment can be treated as an exempt distribution. An exempt distribution is a payment that is treated as consideration for the disposal of shares and is subject to CGT.

When a company makes a purchase of its own shares, any excess paid over the amount of capital originally subscribed for the shares is usually treated as a distribution (a dividend). However, there are special provisions that enable an unquoted trading company or an unquoted holding company of a trading group to undertake a purchase of its own shares without making a distribution.

To check out the tax implications of an intended buy back, a clearance application may be made to HMRC. Under this procedure a company wishing to make a purchase of its own shares can obtain advance confirmation from HMRC that the distribution arising will be an exempt distribution.

Broadly there are two situations where a payment on the purchase by a company of its own shares is not treated as a distribution:

• the company must be an unquoted trading company; and
• either Condition A: purchase benefiting a company’s trade or Condition B: purchase in connection with Inheritance Tax liability must be met.