Winding Up Companies: New Anti-Avoidance Rules You Need to Know

Could Liquidation Lead to Unexpected Tax Charges?

By Wingate Accountants
📧 enquiries@wingateaccountants.co.uk

With the introduction of new anti-avoidance measures from April 2016, many company directors and business owners have questioned whether winding up a company remains the tax-efficient route it once was. There has been a notable buzz—particularly among insolvency practitioners—about perceived changes to Entrepreneurs’ Relief and Capital Gains Tax (CGT), prompting calls for Members’ Voluntary Liquidation (MVL) before the deadline. However, a closer look at the legislative changes reveals a more nuanced picture.

Income vs Capital: Why the Distinction Still Matters

Historically, tax planners have looked for ways to transform income into capital to benefit from more favourable tax treatment. Before CGT was introduced in 1965, capital gains weren’t taxed at all, while income tax rates soared. Even after CGT was introduced, rates remained significantly lower than income tax, creating ongoing incentives for retaining profits in a company and extracting them via a capital route.

In current terms, winding up a trading company and claiming Entrepreneurs’ Relief (now Business Asset Disposal Relief) can potentially result in a 10% CGT rate. Compare that to up to 38.1% for dividends, and the appeal is clear.

The Rise of Aggressive Tax Planning

In recent years, some advisers have pushed aggressive strategies—such as annually incorporating and liquidating businesses—to exploit the income/capital divide. The goal? Pay 20% Corporation Tax on profits, then withdraw funds at 10% CGT, resulting in an effective tax rate of 28%. This compares very favourably to income tax at 45% plus National Insurance.

However, these strategies were always at risk of falling foul of HMRC’s existing Transactions in Securities rules, introduced in 1960, which were designed to prevent artificial conversions of income into capital. Where such rules apply, HMRC can reclassify liquidation proceeds as income, subject to much higher rates.

What Has Changed in the Finance Bill?

The 2016 Finance Bill brought two key changes:

• Tightening of the Transactions in Securities rules – HMRC can now issue counteraction notices more easily, supported by self-assessment enquiry-style powers.
• New ‘Phoenix Company’ Rule – Where an individual winds up a company and continues a similar trade within two years (personally or via another company), proceeds from the winding-up may be taxed as income if one of the main purposes is tax avoidance.

Notably, this second rule causes real concern due to its subjectivity. The key trigger is a “main purpose” of avoiding income tax, which relies heavily on interpretation and circumstance.

Phoenixism – Innocent or Avoidance?

HMRC’s stance is clear: even a small interest in a successor company could potentially activate the rule. While the tax authority may exercise discretion where intent isn’t clearly avoidant—such as a retiring director holding minimal shares elsewhere—there is no formal clearance process in place. This introduces considerable uncertainty.

Real-World Implications

Consider property developers who often use Special Purpose Vehicles (SPVs) to isolate risk per development. These SPVs are commonly liquidated after project completion, but the same individuals may be involved in new SPVs for future sites. In HMRC’s eyes, this could resemble phoenix activity unless robust commercial justifications are documented.

Would it be better to operate as a group structure instead of multiple independent SPVs? That might demonstrate a lower risk of being perceived as having a tax avoidance motive.

Our View: Strategy or Scare Tactic?

The underlying aim of these new rules seems clear—to discourage systematic tax avoidance while deterring directors from exploiting capital treatment too readily. The actual implementation, however, depends on HMRC’s ability to interpret intent and investigate effectively—something not easily done at scale.

Final Thoughts & Practical Tip

Tip: Before you proceed with any liquidation, seek specialist advice. The risk of reclassification to income tax is real—particularly if you plan to start a similar business afterward. At Wingate Accountants, we help directors assess the risks and navigate these complex anti-avoidance rules confidently.

If you’re considering winding up your company, or if you operate through SPVs or similar structures, get in touch with us for tailored guidance.

Contact Wingate Accountants
📧 enquiries@wingateaccountants.co.uk
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