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Governments of different parties like to play around with the length of time an employee must have been employed before he or she has the right to bring an Employment Tribunal claim for unfair dismissal.  Conservative governments prefer a 2 year period, Labour prefers 1 year.

As I write this, the present qualifying period is 1 year.  However, with effect from 6 April 2012, the qualifying period will increase to 2 years.

It is important to note that this change will only affect those employees whose employment commences on or after 6 April 2012.  For those whose employment commenced/commences on or before 5 April 2012, the qualifying period will remain 1 year.

One of the first questions I ask a client, be it employer or employee, is length of service.  This change will make it more complicated. Until April 2014 I will need more precise information.  I will need to know the exact start date, as I will need to know whether I am dealing with employment which commenced before or after 6 April 2012.

For this post, we have a guest blogger, John Plumridge of Curtis Plumstone Associates

 CAPITAL ALLOWANCES –THE NEW LEGISLATION.

Currently, as I write this blog in March 2012 many people involved in commercial property may well be unaware of the changes which are going to take effect in April 2012.  The purpose of writing this particular blog is therefore to try and enlighten them as to these changes and the pitfalls, which may well include being sued, if they do not accept that they are to play a central role in advising their clients in respect of capital allowances claims on commercial property.

What’s happening post April 2012 if there has been no previous claim?

If a company or individual is selling a commercial property purchased before April 2012 then not a lot will change. The buyer’s solicitor still needs to ensure they receive properly completed section 19 of the CPSE1 form to establish the capital allowances claims history of the property being sold. If it appears there have been no previous capital allowances claims on the property then a Section 198 Election Agreement for plant and machinery fixtures is not possible and the right to claim capital allowances on the property will transfer to the buyer just as it does now. In summary the buyer is normally in the stronger position as the underlying law favours them.

However a pro-active solicitor may advise the seller of his right to make a capital allowances claim within, broadly, up to a couple of years of the sale allowing them to enter into a Section 198 Election Agreement with the buyer where the capital allowances are agreed to be valued at £1. In reality we see this happen very infrequently at the moment because most conveyancing solicitors do not see it as their role to advise their clients on the benefits of making a capital allowances claim whether representing the seller or the buyer.

What’s happening post April 2012 if there has been a claim?

Where a capital allowances claim has been previously made then a Section 198 Election Agreement may be entered into between the parties agreeing how the capital allowances are distributed between seller and buyer. The seller’s solicitor will normally be trying to value the capital allowances at £1 whilst the buyer’s solicitor should be trying to get them valued at the original valuation when the capital allowances were first pooled (i.e. claimed) by the seller’s accountant.

If agreement cannot be reached between the parties then the buyer has up to a maximum of two years from the date of completion to  refer the matter to the tax chamber of the First-tier Tribunal for determination.  As the underlying law indicates the full benefit of the capital allowances should generally pass to the buyer on completion then sellers would be advised to come to an agreement before this happens or risk facing the time and trouble of dealing with a tribunal and losing all rights to the capital allowances previously claimed. If  a Section 198 Election Agreement is not entered into or a decision not sought from the First-tier Tribunal in time then any future rights to claim capital allowances on the original plant and machinery purchased as part of the sale will be lost not only to the current buyer but any future buyer too.  Potentially devalued because any new purchaser is deprived of making a capital allowances claim at all!

What’s happening post April 2014 if there has been a claim?

Post April 2014 is where there is going to be a major sea change.  Where there has been a previous claim then a Section 198 Election Agreement still may be agreed between the parties. If they cannot agree then the buyer once again can refer the matter to The First-tier Tribunal. If agreement cannot be established then again any future right to claim capital allowances will be lost to the buyer and future purchasers.

What’s happening post April 2014 if there has not been a claim?

Where it is established that the seller could have claimed capital allowances but did not do so then it is imperative on the seller to pool the capital allowances before sale (i.e. formally notify the qualifying expenditure to HMRC in a tax return). This means the seller will need to have the required surveys completed by a specialist, pool the capital allowances into their tax accounts and then enter into a Section 198 Agreement to distribute the capital allowances as agreed. This really needs be agreed as part of the negotiations on sale of the property.

However, what if the above is missed as part of the property sale and purchase? The new owner will not have the right to take it to  the First-tier Tribunal (because the seller must first have claimed) and if they want to get the benefit of any capital allowances they will have to persuade the seller, after the event, to allow a capital allowance claim to be made. The seller will then have to agree for the capital allowances to be pooled into their tax accounts and then enter into a retrospective Section 198 Election Agreement for the capital allowances to be transferred to the new owner.  The problem is, will the original seller be motivated to do this having completed on the sale?  I would suggest there will have to be some financial motivation provided by the new owner to persuade them to do this and even then they might not get the original seller’s agreement. Again if agreement is not reached future rights to claim capital allowances will be lost to all future buyers.

This last scenario shows the potential for those who do not have access to the correct professional advice losing the right to  claim Capital allowances altogether.

John Plumridge BA(Hons) MCIPS

 

Many thanks to John for writing this guest blog.  You can find out more by contacting John via www.curtisplumstone.com or by e-mail: info@curtisplumstone.com.  We will be happy to arrange a meeting: please contact Graeme Quar if you would like us to set up a meeting.

Congratulations to Joe Campbell, our commercial property solicitor, who marries Vanessa tomorrow.

Our best wishes to both of them.

 

This time 18 years ago my wife was heavily pregnant and I had just resigned from a comfortable and safe solicitors’ partnership.  With no income and a mortgage to pay I recall the emotional mix of excitement and fear. Graeme Quar & Co A Law Firm Advising Business was born a few weeks before our son.

This time last week I enjoyed a lunch of champagne and cake with our team to celebrate 18 years of being in business.  There is still lots of excitement and plenty of challenges.

Graeme Quar & Co has come of age.  In the current financial year turnover has increased by 32%.  Our second branch office was opened last December and the team has doubled in size since 2010.  We are optimistic about the future.

I am asked what advice would you give to an ambitious young solicitor who is considering a legal start up? Easy.  Two things.  Firstly, know what you want to do and write it down.  It is called a Business Plan.  Secondly, stick to the plan.

I still have in my desk drawer a copy of the Business Plan that I prepared in 1994 to present to Lloyds TSB Bank.  It was sufficient to persuade the bank to lend me the working capital and provide an overdraft facility.  I still read it.

The Business Plan said that my new business would be A Law Firm Advising Business.  The firm would target owner/managed businesses in Hampshire and provide legal advice and solutions to those businesses.  This is what we did yesterday, we are doing today and will do tomorrow.

We know our market well. All of our solicitors specialise in business and commercial property law.  We meet and talk to the local business community.  We find out what businesses want and deliver.

Over the years we have resisted the so called easy money in residential conveyancing.  We have avoided ambulance chasing for personal injury work. We cannot write wills and couldn’t spot a decree nisi – but we know our target market.

Whilst the core values of the Business Plan have remained the same our management activities have evolved.  Our 2012 annual review includes a social media strategy, case management IT systems, customer service training and a 90 day plan for every team member.

After 18 years we remain A Law Firm Advising Business.  I am looking forward to the 21st birthday cake and another glass of champagne.

Graeme Quar

18 today!

March 1st, 2012

18 years ago, on 1 March 1994, a young solicitor called Graeme Quar opened his own firm, in premises nostalgically referred to as the cowshed, and with Ann, his long-suffering PA.

18 years on the firm is going strong. At lunchtime we allowed ourselves a small celebration.