Editor's comment
Season's greetings and welcome to the winter 2011/12 edition of the restructuring & recovery bulletin.
As you may already be aware, Finbarr O'Connell has joined our London restructuring and recovery services team as a director. Needless to say, I am delighted that Finbarr has joined us and I expect he will be contributing many interesting articles in the New Year.
In this edition Mark Ford examines how HMRC's attitude to time to pay arrangements can vary considerably and provides an overview of our recent experience in this area. Henry Shinners addresses how, with UK businesses still struggling in a stagnant economy, members of LLPs may find themselves at risk of personal liability. Mark Webb explains the benefits of tax planning in the disposal of assets in an insolvency process. We also have articles on the charities and motor industry sectors and Paul Wood tackles the hot topic of the current European crisis.
As always, if there are any subjects that you would like to include in future bulletins please let us know. In the meantime, happy holidays and best wishes for a prosperous and busy New Year.
TIME TO PAY? THE CHANGING STANCE OF HMRC
By Mark Ford
HMRC issued a Briefing Note in November 2011 which made it clear that time to pay (TTP) was still available, but indicated that there had been an increase in the proportion of applications which had been turned down. The note says: "These are often businesses which have had a succession of time to pay arrangements or which have failed to keep up the terms of previous arrangements. Where this has happened we have to explore whether they are in genuine shortterm difficulties or have in fact become unviable and we have to act to protect the general taxpayer".
The following recent case studies illustrate how HMRC are operating TTP in practice.
Recruitment business – seven TTPs in ten months
This recruitment business, with an annual turnover of £30m, had been through a restructuring process and effected significant cost-cutting measures, including redundancies and an office relocation. Following the restructure, the business was trading profitably and was generating cash but, critically, it had a residual liability of approximately £2.1m for VAT and PAYE.
The company approached HMRC for a TTP on the basis that the existing shareholders would inject additional equity over a short timescale that would be sufficient to repay the arrears. This was shortly after HMRC had formalised the panel of firms for independent business reviews and, as a panel firm and on the recommendation of the company's auditors, we were engaged to carry out the review. Our draft report recommended that HMRC accept the company's proposal, with one caveat – the shareholders were unable to evidence their ability to provide the additional equity funding on the promised timescale.
Before our report could be finalised, the company had withdrawn its original proposal. It also suggested and withdrew a second TTP arrangement. The company submitted a third version, the terms of which rendered the work we had performed redundant. This led to a loss of management credibility, not only with HMRC but also with the company's provider of invoice finance.
Astonishingly, the company went on to make and break a further four TTPs. Ultimately, after a period of ten months since our initial involvement and after seven TTPs, HMRC's patience expired and it issued a petition for the company to be wound up. We were appointed as administrators of the company and were able to achieve a going concern sale of the business and assets. The secured creditor has been repaid in full and it is currently expected that there will be a return for unsecured creditors, of which HMRC's claim of approximately £2.1m is by far the largest.
Scaffolding business – unable to agree a single TTP
This company claimed to be the UK's largest independent scaffolding business with annual turnover of approximately £20m. It had been in the restructuring team of one of the major clearing banks for some time following the downturn in the construction sector.
Although the business had been successful at winning high profile contracts, it suffered from a combination of overrunning projects and poor management of its scaffolding stocks. Consequently, in order to fulfil its obligations on new contracts as they started, the company was repeatedly in the position of having to buy further stocks of scaffolding equipment. Since the company did not have access to funding, the acquisition of scaffolding was effectively paid for by underpaying HMRC by approximately £2m in PAYE and national insurance contributions in less than 12 months.
The company's first TTP was for repayment of the arrears over 23 months, which was realistically what the company could afford. This was promptly rejected by HMRC without any effort to negotiate improved terms or any guidance as to what would constitute acceptable terms. HMRC issued a demand for payment in full within seven days and threatened to wind the company up if that demand was not met.
A two-strand approach was adopted – the primary element of which was to continue to negotiate with HMRC but with Smith & Williamson planning (and discreetly marketing the business for sale by way of) a pre-packaged administration sale as a back-up plan.
The company's bank agreed to provide a significant level of additional support and the company was able to make a revised proposal to repay the arrears and current PAYE and national insurance of nearly £1m within six months.
A second TTP application was made which was also rejected and HMRC made it clear that it was unwilling to consider a request that was for a period of longer than three months. The back-up plan became the only solution. We had identified a number of parties interested in acquiring the business and assets as a going concern and a sale was completed on 21 July 2011. The secured creditor is expected to be repaid in full but the prospects for unsecured creditors (of which HMRC is the majority) are uncertain.
Our recent experience
We have seen a number of cases where HMRC is unwilling to consider repayment proposals of more than three months. We also understand that they will not consider TTPs where a company has recently paid dividends or repaid directors' loan accounts and they appear to be taking a particularly unfavourable view when it comes to repeat offenders.
It was reported recently that in the 12 months to August 2011, HMRC had granted 70 TTPs in cases with arrears of over £1m without subjecting any of the businesses in question to an independent business review. There appears to be an inconsistency of approach, which is making it difficult when advising lenders to, and directors of, businesses requiring forbearance from HMRC in relation to tax arrears.
IN THE RED - THE DANGERS FOR LLPS OF TRADING WHILE INSOLVENT
By Henry Shinners
The UK economy has emerged from the worst recession in living memory, and we are far from out of the woods yet. The possibility of a double-dip recession remains; the sovereign debt issue in Europe continues to make daily headlines and cause turmoil in the global markets, and it may yet lead to an economic crisis to rival that of autumn 2008.
It's a gloomy picture, yet a combination of record low interest rates and a long period during which HMRC has been extremely supportive of businesses seeking to defer repayment of tax arrears has meant that, to date, there have been fewer business failures than one would have expected during such economic turmoil. Nevertheless, a significant number of UK businesses are in poor financial health and many of those may, unwittingly or otherwise, be trading while insolvent.
Impact on professional practices
So, what is trading while insolvent (or 'wrongful trading' to give it its formal title) and does it apply or matter in a professional practices context? In a traditional partnership, where partners have unlimited personal liability for all of the debts of the business, there are no increased financial consequences for the partners personally if they should continue to trade an insolvent business beyond the point that they should. However, in a limited liability partnership (LLP), where the members will consider themselves to have limited liability, greater care is needed if a nasty surprise is to be avoided.
It's important to remember that LLPs are analogous to limited companies in that an LLP is a body corporate, with a separate legal identity, and its members have limited liability. The corporate (rather than personal) provisions of the insolvency legislation are broadly applied to LLPs in the same way that they are to companies. As with companies, there are certain circumstances in which the corporate veil can be pierced, and a key risk for the members of a financially distressed LLP is that they could be held personally liable for debts of the LLP if they are found to have been trading wrongfully.
LLP members' liability
Wrongful trading is a civil action brought by a liquidator, who will consider whether the LLP's members continued to trade the business beyond the point that they "knew, or ought to have concluded", that there was no reasonable prospect of avoiding insolvent liquidation and whether, in doing so, they worsened the position for creditors. Upon a successful application by a liquidator, the court may make a declaration that the members should personally make a contribution to the LLP's assets. The quantum would be such as to restore creditors to the position that would have applied, had the LLP not continued trading beyond that point of no return.
There are also implications for members of an insolvent LLP who withdrew property – including salary, share of profits, payment of interest on a loan to the LLP or any other withdrawal of assets – from the LLP, for their own benefit, during the two years prior to the liquidation. In common with the wrongful trading remedies available to the liquidator, the "knew or ought to have concluded" insolvency test will apply. The court can order that the members are personally liable to make a contribution to the LLP's assets, up to the amount withdrawn for their personal benefit during the two-year period. These 'adjustment of withdrawals' or 'clawback' provisions of the Insolvency Act 1986 are unique to LLPs.
LLP members' defence
Members of LLPs in such circumstances are likely to find that the defences against claims brought by liquidators are limited. It is not sufficient to say, for example, that one was acting honestly, or in the best interests of the partnership. This is because the interests of creditors take priority when a business is insolvent or at risk of insolvency. What a member "knew or ought to have concluded" and the steps they ought to have taken might be considered to be subjective. The members of an LLP are expected to use, as a minimum, the general knowledge, skill and experience that could be expected of a reasonably diligent person. If, through their professional qualifications and/or experience, a member has a higher level of knowledge, skill or experience, then a higher standard will be expected. It therefore follows that the members of a professional practice will be expected to show a particularly high level of conduct.
The best way for members of a potentially insolvent LLP to minimise the risk of personal liability is to take professional advice as early as possible from an insolvency practitioner. They will be able to guide the members through the steps that should be taken to minimise the potential loss to creditors and the options available to the members generally.
MISSED OPPORTUNITY? DEPENDS ON THE CIRCUMSTANCES
By Mark Webb
Great care is naturally taken by lenders, in conjunction with insolvency practitioners, to identify the most appropriate insolvency process to use on a case-bycase basis. Primarily, consideration is given to the respective powers, duties and responsibilities of the office holder alongside the cost in each scenario but – where time permits – a good deal of value may be gained or retained by considering tax at the planning stage.
Corporation tax pitfall
Imagine a scenario where a company enters administration with a strategy for the trade to be continued by the administrator while the business and assets are marketed for sale as a going concern.
Without thought, this common scenario triggers a corporation tax pitfall. The company is obviously insolvent, which will ordinarily mean that the business has trading losses. The appointment of an administrator creates the start of a new tax period so that the realisation of assets within the administration and the trading losses pre-appointment cannot, for corporation tax purposes, be set against each other.
This problem can be particularly acute given that corporation tax is an expense of the administration, ranking ahead of a lender's floating charge. There are also circumstances where it is payable before the administrator's fees.
While it is of course recognised that the disposal of assets pre-appointment may be difficult for directors and buyers, if possible such a disposal can maximise the use of trading losses as they can be set against gains realised in the same accounting period. In addition, if there is uncertainty about the tax base of assets (i.e. profits or gains could be significant), dealing with matters pre-appointment insulates potential tax costs from recognition as expenses within the formal process.
In one case the disposal of assets preappointment led to a gain of £2m, offset by trading losses in the period. Had this been realised in the administration, tax of £580,000 would have been due with no offset for trading losses brought forward. The consequent benefit to dividends to creditors was material.
There is no rule of thumb but, if you have time to plan it, a discussion may well reap dividends through reducing corporation tax expenses.
The VAT situation
Accounting periods do not affect VAT, however, the nature of the appointment can be critical.
In an administration, the office holders manage and control the company's affairs and they have much more flexibility over the VAT position. They can, for example, 'opt to tax' any properties held by the company in order to maximise VAT recovery. In a fixed-charge receivership, however, the receiver has very limited (if any) control over the company's VAT position and invariably is not able to recover VAT incurred on maintaining or selling the assets.
In the latter circumstances, depending on the nature of VAT recoveries, the co-operation of the company will be required to maximise the VAT position for the secured creditor. If recoveries could be significant, it may be beneficial to consider appointing an administrator rather than a fixed-charge receiver. It is, however, understood that HMRC is looking to find a way to allow receivers to recover input VAT as well as accounting for output VAT.
TOUGH TIMES FOR SMALLER CHARITIES
By David Blenkarn
At a time when the UK economy is struggling and most people are cutting back on their spending there are many challenges facing charities. There were 161,657 general charities registered with the Charities Commission on 1 November 2011 and between them they received annual income of £55.2bn. These numbers are impressive, but once you dig deeper there is a wide divergence between two groups of charities, the very large and the very small with few falling into a medium category.
Of the 161,657, some 71,000 (43.7%) had annual income of under £10,000, totalling £0.2bn. A further 51,000 (31.5%) had income of less than £100,000. In total 75.2% of all charities (122,000) have income of less than £100,000. The total income of these is just over £2bn out of the total of £55.2bn.
The big charities take the majority of the income. The biggest players number around 1,700 (1.1%) each with annual income of over £5.0m. These 1,700 have total annual income of £37.2bn and take 67.4% of charitable income. Overall the top 10,000 charities (6%) take 88.8% of the annual income, leaving the other 90% of the charities with an average annual income of around £44,000.
Charitable income has increased from £23.7bn in 1999 to £53.9bn in 2010; a very positive trend. The proportion going to charities with income over £10m has grown from 43% to 56% over that same period.
These statistics underline that the charities sector is a two-tier world, but all charities face similar commercial and regulatory challenges.
Reducing government funding is hitting the whole sector, but has a particular effect on the smaller, specialist charities. The regulatory challenges for small charities come from the plethora of rules and regulations, such as investment guidelines, governance standards, the Bribery Act (particularly for those operating in foreign jurisdictions) and changing VAT regulations.
Declining income, pressures on trustees and fraud within charities all combine to bring about situations where charities cannot continue without radical change.
Against this background it's not surprising that many charities are getting into financial problems.
Once this point is reached the options for trustees are as follows.
- Restructure the operations, increase funding and cut back on costs. The key is to make operational changes as soon as the charity can foresee problems.
- Look to merge the charity with another in the same sector to increase scale and resources. This has been the route to safety for several charities recently and underlines the fact that often bigger is better.
- If restructuring or a merger does not look like it will bring an answer then taking specialist advice from an insolvency practitioner and a lawyer is vital. The trustees will need guidance through the processes to ensure that their actions cannot be criticised and that the requirements of the Charities Commission are met.
As ever the key is to take advice early so that the right solution can be found in a measured timescale, rather than having to react at the last minute.
AN INDUSTRY STUCK IN NEUTRAL?
By Greg Palfrey
We have been advising several large motor manufacturers and/or their finance arms on problems they have had with their dealership networks. This has been successful where, working alongside the manufacturer and the financier, we have been able to use restructuring processes, both outside formal insolvency (including solvent liquidations) and involving formal insolvency processes, to return funds to the secured stakeholders as well as unsecured creditors. In almost all cases early intervention was an important prerequisite.
The highest unsecured payout to date has been 40.4p in the £. In most cases we have helped, alongside the manufacturer, to retain the dealership presence for the network and many of the accompanying jobs. There is often a long-standing relationship between brand and dealership which can mean loyalties can be helped to endure even after restructuring through a formal insolvency process. In many cases these loyalties on both sides enhance what is a difficult process and ultimately help lead to a successful outcome.
The motor industry continues to suffer with the difficult economic climate, the increase in VAT, the end of the scrappage scheme, the loss of consumer confidence and the high cost of fuel at the pumps all collectively delaying or changing buying decisions. A further significant problem is that of high rents in the South and South East eroding margins further in those parts of the country. Early dialogue can help in this regard if sensible proposals are put to the landlord. However, this has to be done carefully, addressing the risks of the landlord's possible actions if rent is outstanding. A restructuring process may be called for if appropriate.
The larger volume manufacturers have had mixed results. BMW has managed to increase sales by 14.5% to 31 August 2011 over the same period in 2010, while Ford's like-for-like sales are down to 171,000 units from 184,000. Vauxhall has sold approximately 151,000 units, down from 156,000 in the same period. Overall, new car sales are down by 6.14% this year over the same period in 2010.
The industry continues to innovate and change following on from the growth of large car supermarkets. Tesco has now entered the fray with its own used car website and a number of consolidators are buying up poorly-performing dealerships. With low margins in new cars, dealerships continue to look for new ways of generating margin as well as the established ways such as selling secondhand cars, arranging finance and servicing. Websites continue to develop with the ability not only to view videos of many brands online but also to order your entire specification car online.
We expect much of the industry will continue to face tough times until the economy improves significantly. We are therefore on hand to work with our clients (dealers, manufacturers, other stakeholders or preferably all) specifically to produce an agreed optimum way forward both outside and, where necessary, through a formal insolvency procedure. Our 'roadmap' approach sets out the financial position of the company, reviews the solvency and business model and also the stance of the major stakeholders. It identifies where respective interests lie and outlines the best options. We then help to implement the roadmap as agreed by all parties to produce the best possible result.
HAS THE EUROZONE BEEN SAVED?
By Paul Wood
This article was written on 27 October 2011 and therefore given the unprecedented speed of change, the eurozone will likely be a very different place by the time you read this.
On 26 October 2011 the leaders of the European countries in the eurozone declared a three-pronged strategy to prevent financial meltdown. So will a 50% write down of private bank debt in Greece, European banks being forced to recapitalise to the tune of €106bn and an expansion of the bailout fund to €1tn really prevent a eurozone collapse? Well the short answer, I believe, is possibly for a few weeks, but long term it is likely to fail and for reasons that many of the leaders already know.
Greece
Following the agreement, a staggering statistic reported was that even with the write down proposed, Greece's debt will still be at the same level in ten years time as it is now. That is after implementing disastrous austerity measures which will result in a contraction in the Greek economy which hasn't been factored into the economist's calculations. It is almost certain that the current Government, which has decided to cut the deficit purely by means of austerity programs, will be ousted at the next election in 2013. This is likely to then undo the agreement that has just been reached.
The Greek people no longer want to be in the euro; they have nothing to lose by causing civil unrest as they believe that unless they leave the currency they have no economic future. Unless the Greek economy grows it cannot ever pay back the debt it owes and its credit rating is considered 'junk' by the rating agencies, meaning it is still highly likely to default. It beggars belief that the current write down in debt is not considered a credit event on European banks.
Greece is expected by most economists to leave the euro at some point in the future as, if the Greek Government do not make this decision, its people will force it to do so. By that time the eurozone will have sunk several €100bn into Greece which will be lost.
Borrowing cost
The cost of borrowing for the governments in Portugal, Italy, Ireland, Greece and Spain (PIIGS) has now reached dangerous levels. Just two days after the agreement on Europe, Italy's cost of borrowing reached record levels, at 6.06% for ten-year bonds. This continues to rise showing that the bond markets do not believe that the agreement reached makes buying Italian debt less risky. An interest payment for any country over 6% is considered unsustainable and for a country like Italy, which needs to raise about €300bn on the bond markets in 2012, it will be disastrous.
Italy is not growing and is likely to enter recession shortly, yet it has committed to a further €60bn of austerity measures which few believe they can deliver. Without growth Italy will require a bailout and there is not enough money in the European Financial Stability Fund (EFSF) to do that, even when boosted to €1tn. Telegraph columnist, Liam Halligan writes: "A default by Italy, the eurozone's third biggest economy and the eighth largest on earth, would make Lehman look like a picnic."
Agreement illegal?
In addition, within days of the agreement Germany's constitutional court suspended the rights of a small parliamentary committee to approve urgent actions required by the EFSF. The full German parliament must now approve any EFSF bond-buying. This is unlikely as any bond-buying must be done in secret and the German parliament cannot meet in such a way. So for the time being the European Central Bank will have to continue buying the bonds of the debtridden PIIGS countries.
Commitment to austerity
The PIIGS will be reluctant to implement austerity measures as they get closer and closer to elections for fear of the electorate venting their anger at the polls. What happens if the current Governments are ousted? Will they renegotiate or just pull out of Europe because the burden of staying in is too great? With many believing that the eurozone will enter recession as austerity measures are implemented, it is highly likely that more austerity measures will need to be introduced just to balance budgets as tax collections will inevitably be lower. This downward spiral will eradicate growth and cause significant pain to all who trade with the eurozone.
A flawed concept?
The concept of the euro was a good one, but was fundamentally flawed by trying to fix one interest rate across the euro for such diverse economies. By admitting countries who were not ready, and by not managing their budget deficits tightly, the euro has destroyed itself. It will be consumed from within, either slowly, by continuing to prop it up with funds that don't exist, or quickly, by allowing countries to exit and default. Whatever happens, the eurozone, as an economic block, will look very different in ten years' time and the fallout will affect all countries in Europe as contagion spreads.
As an insolvency practitioner, I know that you cannot keep putting money into a business if the underlying business is not feasible; eventually the business will become insolvent. In addition, the longer you keep putting money in the more spectacular the failure is. Europe is in a similar position but on a much larger scale with far more at stake. Unless a decision is taken soon to restructure the eurozone, which will involve countries being forced to leave, the failure is likely to be spectacularly bad for everyone in Europe. However, an early restructure with the associated pain will be far better in the long term.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.