Bentleys are warning family businesses to be aware of controversial legislation to prevent ‘income shifting’ which has been postponed until at least 2010, and did not feature in this year’s Budget as originally planned. However, HM Revenue and Customs has reiterated its stance that it ‘firmly believes it is unfair’ to allow a small minority of taxpayers to benefit from shifting part of their income to someone, usually a family member, who is a lower-rate taxpayer.

John Shaw a partner from Bentleys said: “Assuming the legislation is eventually introduced, any subsequent inspections by HMRC could be bad news for small businesses that employ a family member to carry out a genuine role with the company. However, there are a number of steps a small business owner can take now to ensure their arrangements are genuine:

• Pay a commercial rate for the work the family member is doing, which should at least be the National Minimum Wage (currently £3.53 for 16 and 17-year-olds, £4.77 for 18 to 21-year-olds and £5.73 for those aged 22 and over).
• Record the work done and the hours worked to show that sufficient work was carried out to justify the wages paid.
• If the wage exceeds the National Insurance threshold of £95 per week (for 2009/10), the wage should be processed through the payroll, with tax and NI deducted as necessary.
• Wages should be seen to leave the business bank account and either go into the family members’ bank account or be given in cash.
• It is best that the family member has an official contract, like any other employee, setting out their terms and conditions of employment.

“If there is no evidence that work is actually being done for the wages paid, HMRC is likely to conclude that the family member concerned is not a ‘real’ employee and will refuse to let the business deduct the labour costs from its profits.”

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