Entrepreneurs' Relief on development land

Significant capital sums can be realised by the sale of land for redevelopment purposes.  A sale of land will inevitably give rise to a charge to Capital Gains Tax (CGT) but depending upon the structure of the sale the farmer may be able to benefit from a valuable relief from CGT, i.e. Entrepreneur’s Relief (ER).

Following the changes in the rates of CGT in 2010 the gain is now likely to be taxable at the flat rate of 28%.  The more favourable rate of 10% under ER applies only if the sale constitutes a disposal of part of a business.  

Once a specific piece of land for development has been identified, the key is to create a separate farming business distinct from the wider farming operation on the development land.  Once a partnership is created the partners might then apply for planning permission or enter into an agreement with a developer to fund the planning fees and costs.  The partnership farming business would then need to be operational for a minimum of 12 months for ER to be available.  The land would need to be sold within three years of the cessation of the partnership.

It is crucial that a genuine farming business is created and the parties can evidence that together they are involved in the business of farming the land, rather than just recovering rents from it, which would not qualify as a business for ER.  The new trading partnership should be evidenced by a partnership agreement and the “development” land should be held as a partnership asset and shown in the partnership’s accounts.

If the land is farmed by a third party the owner will need to decide whether the land could be brought into any partnership or, less ideally, enter into a contract farming arrangement, which should bear all the hallmarks of both parties bearing the risks of the farming business.

Given the scrutiny employed by HMRC on ER claims for development land it is essential that the correct legal and accounting structures are put in place.