Compared to some tax reliefs, the qualifying conditions for Entrepreneurs’ Relief are relatively simple. One of them is that if the relief is to be obtained on a disposal of shares in a company, the claimant must normally be an employee or director throughout a period of one year ending on the date of disposal.
Mr Moore had been a director of a company. There was a disagreement as to the future direction of the company. He ceased to be a director in February 2009 but it wasn’t until May 2009 that he sold his shares in the company. So he wasn’t entitled to the benefit of Entrepreneurs’ Relief. An open and shut case, you’d think: it’s a reasonably well-known pitfall of ER and Mr Moore fell into it.
Mr Moore argued before the Tribunal that the disposal had really taken place in February when the terms were agreed: but one problem with that argument was that the sale was to the company and, apart from anything else, the re-purchase by the company required shareholder approval which was not sought until May. So the Tribunal, predictably, rejected that argument.
Intriguingly, the appeal against the assessment withdrawing relief had asserted that Mr Moore resigned as director only on 29 May “as evidenced by the signing of various documents at a meeting attended by all the directors and shareholders” and indeed form 288b was filed at Companies House only on 1 June (although it gives the date of resignation as 28 February). On the face of it, the argument that the form 288b was wrong and that the resignation in fact took place on 29 May seems attractive; but by the time the case got to the Tribunal in 2016 (why it took so long is a mystery) that argument had been dropped and it was conceded that the resignation had taken place in February. Once that was conceded, Mr Moore’s case was almost hopeless.
But only “almost”. In two other cases taxpayers have been luckier (we use the word advisedly). In a case in 2013 Mrs Corbett managed to persuade the Tribunal that she had still been an employee in October 2009 despite the fact that she had been taken off the company’s payroll the previous February, given a P45 and received no further remuneration. And in 2014 Mr Hirst (who had resigned as a director in 2007) was successful before the Tribunal (with the same Chairman) in claiming that he had been an employee in July 2009 despite having no written employment contract, no remuneration and apparently no very clearly defined hours of work. Neither of these cases were cited by Mr Moore; so we shall never know if they would have made a difference.
(John Kenneth Moore v HMRC [2016] UKFTT 115 (TC))
