Tax Partners, Alexander Garden and Alison Paul, discuss the implications personal matters can have on a family business including potential pitfalls. Watch Alexander and Alison here.
Alison: "Those involved in a family business know it's almost impossible to keep their personal and family life out of business affairs and, whilst they're very busy running the business, understandably, they often give little priority to what might happen on what are significant and sometimes inevitable events – death, taxation, a marriage breakdown."
Alexander: "So how can these risks be mitigated? As Alison has said, there are some things that are certain in life, and death and taxes are two of those. In respect of death, a simple but extremely important thing to do is to have a will in place and it's important in the family business context to ensure that that will is drafted in such a way as to take account of things like tax efficiency, protection of assets and also what may already be set out in a partnership agreement or a shareholders agreement in respect of the succession to those assets. Another thing is if one loses capacity, the family will have a lot of other issues to worry about and you do not want the business to suffer at that point, and an insurance policy is to have a power of attorney drafted to ensure that the business affairs could continue to be dealt with."
Alison: "Divorce is another, hopefully not inevitable, but not uncommon event and, in fact, in Scots law we're relatively friendly to family businesses on a divorce, because assets, which are inherited either before or during the marriage, and even assets that are gifted, perhaps, as part of a planned succession strategy, are also outwith the pot, when a division is made on divorce. However, there is a nasty in here, because if those assets change in any way during the course of the marriage then they can inadvertently become matrimonial property, and that could be as simple as a share restructuring, perhaps, to achieve a better tax effect or, perhaps, a husband gifting shares to his wife to make use of her lower rates of tax. So, you have to be terribly careful when you're looking at these business restructurings. It is possible, and becoming increasingly common now, to enter into prenuptial agreements or even postnuptial agreements to address these things and saying, not withstanding the subtle or even quite significant changes in family business assets, that they're to be excluded. Another thing to watch out for is a breakup of a relationship, a cohabitation, because these also can now lead to each party having financial claims on the other. So, again, another hopefully not inevitable event, but something that can be protected against with a little forethought."
Alexander: "And more generally on succession planning and trying to ensure that the affairs are in order, thinking ahead to factors that could impact the business, tax is obviously very significant here. Inheritance tax and capital gains tax are two very significant taxes on the succession to family businesses, which, with appropriate advance thought, planning and advice, can be mitigated to an extent. And the important thing is that they are thought about at an early stage to ensure that everything is structured in a way to be as efficient as possible. And you cannot predict every event in the future, so it is having some kind of plan, ensuring that the right people know what that plan is, but ensuring that the plan is flexible enough to be changed going forward over time to take account of changing circumstances."
Alison: "So, I think, our plea in all of this is just to think ahead about the interaction between your personal and family life and the impact it might have on your business."