CIRD45260 - Intangible assets: related party rules: partnership incorporation of a pre-FA 2002 business: outline

BAI receive a number of requests for technical advice in relation to the application of the related party rules at CTA09/PART8/S835 on the incorporation of a pre-FA 2002 partnership business.

Rules were introduced by FA15 which applied from 3 December 2014 to 7 July 2015, and FA19 which apply from 1 April 2019, that restrict when and how relief is given for goodwill recognised on incorporation of a business (see CIRD44001 onwards). No relief was available for goodwill acquired between 8 July 2015 and 31 March 2019. This guidance is therefore only likely to be relevant to goodwill acquired in respect of incorporations that occurred before 3 December 2014.

The term “related party” is defined by S835 (see CIRD45105). S835 (5) is relevant to partnership incorporations and you will need to consider the definition of “close company”, “participator” & “associate of a participator” (see CIRD45250).

When a partnership transfers the partnership business to a close company, at a time when one of the partners is also a participator or associate of a participator in that company, the transfer is likely to be between related parties.

A common misconception is that the goodwill can somehow be apportioned between the partners so that only part of the goodwill is treated as a “pre-FA 2002 asset” (see CIRD10140). For example, claims are made in relation to an outgoing partner’s share of goodwill on the basis that the outgoing partner is not a “related party” at the time of acquisition.

For practical advice in relation to such arguments see CIRD45265. CIRD45270 provides advice in relation to information and document requests.