- This topic has 6 replies, 1 voice, and was last updated 15th April 2018 at 10:03 am by
.
-
Posts
-
The assumption of debt will be consideration and so I’m afraid that you have a Type A transfer. It’s interesting that in most if not all admissions of new partners they will automatically assume liability for the debts whether or not there is a formal assumption
Patrick
I think there is some ambiguity here. If the facts are that one of the new members is directly taking on liability for debt, then I agree that this amounts to actual consideration and therefore a Type A transfer. However, if the facts are that the LLP’s indebtedness to a 3rd party remains unchanged and the new member simply takes over a share in that LLP (and so, indirectly, a share of the indebtedness) I would not see that as the provision of actual consideration (particularly in the light of Swayne v CIR CA, [1900] 1 QB 172) and it is actual consideration not chargeable consideration which triggers Para 14(3A)(b) Sch 15.
Nick, thanks and I agree with your analysis but I would be nervous about HMRC going along with it. I guess a lot would depend upon the wording of the admission to partnership/transfer document and it might be that a little finessing would assist here.
On a separate matter you may be interested that I have already used the UT decision in Portland Gas Storage to generate an appeal in what was otherwise an out of time claim. Well done to you and Michael Thomas!Many thanks Patrick
By the way, in Portland Gas Storage, HMRC have applied for permission to appeal to the Court of Appeal.
Thanks and I imagine that they are keen to close this down asap!
Update: The UT has refused HMRC permission to appeal. HMRC has 28 days to seek permission from the Court of Appeal.
