Está en la página 1de 23

Practice Note

Apportioning the Price Paid for a Business Transferred as a Going Concern


Index
1.

Background

2.

The Statutory Provisions

3.

Legal Definitions of Goodwill

4.

Trade Related Properties

5.

Goodwill in Trade Related Properties

6.

Valuing Goodwill and Other Intangible Assets

7.

Valuing the Tangible Assets - Assumptions

8.

Valuing the Tangible Assets the Profits Approach

9.

Valuing the Tangible Assets the Investment Approach

10.

RICS GN2 - Valuations of the Operational Entity

11.

Apportionment Approach CGT and SDLT Cases

12.

Residual Approach Claims under Part 8, Corporation Tax Act 2009

13.

Leasehold Interests

14.

Examples

Appendix 1

Examples

1.

Background
1.1

1.2

An apportionment of the price paid for a business as a going concern between


the underlying assets may be required for tax purposes in a number of
instances, for example:
a.

For the purpose of calculating the capital gain arising on the disposal
of the separate assets in accordance with the Taxation of Chargeable
Gains Act (TCGA) 1992.

b.

On an acquisition for the purpose of calculating the Stamp Duty Land


Tax (SDLT) due on the interest in the land and buildings only.

c.

On an acquisition for the purpose of calculating the allowances


available under the Capital Allowances Act 2001, such as Machinery
and Plant Allowances.

d.

On acquisition of goodwill for the purpose of Part 8, Corporation Tax


Act 2009 (formerly Schedule 29 of the Finance Act 2002).

The price paid for a business sold as a going concern may include any or all
of the following assets:
a.

The land and buildings including landlords fixtures (the property).

b.

The trade fixtures, fittings, furniture, furnishings and equipment (the


chattels).

c.

Any transferable licences.

d.

Goodwill

e.

Other separately identifiable intangible assets (e.g. registered trade


marks).

The purchaser may also separately acquire consumables and stock but these
are usually valued separately and will not normally be included in the sale
price to be apportioned.
1.3

2.

Some of the principles set out in this Practice Note are applicable to
apportionments for all types of businesses but the note deals mainly with the
particular issues that have arisen where the property is a trade related
property valued using a profits approach, e.g. public houses, hotels, petrol
filling stations, cinemas, restaurants, care homes etc (see paragraph 4 below).
In these cases there can be particular difficulties in identifying the sum
attributable to goodwill and this is fundamental to the apportionment.

The Statutory Provisions


2.1

For the purposes of calculating a capital gain s.52 of the TCGA 1992 provides
that any apportionment shall be on a just and reasonable basis.

2.2

For the purposes of calculating any SDLT due paragraph 4, Schedule 4, FA


2003 similarly provides that any apportionment shall be on a just and
reasonable basis (subject to other provisions of the Capital Allowances Act).

2.3

For the purposes of calculating any Capital Allowances claimed s.562 CAA
2001 similarly provides that any apportionment should be on a just and
reasonable basis unless other specific provisions disapply the application of
s.562 in whole or in part.

2.4

For the purpose of calculating the cost of purchased goodwill Part 8 of the
Corporation Tax Act 2009 (CTA 2009) provides that goodwill has the
meaning it has for accounting purposes 1 . Accounting guidance (FRS 2 10)
provides that purchased goodwill should be taken to be the "difference
between the cost of an acquired entity and the aggregate of the fair values of
that entity's identifiable assets and liabilities" (see paragraph 12 below).

2.5

Unlike the Capital Gains, SDLT and Capital Allowances provisions which
provide for an apportionment approach, the starting point for Part 8 of CTA
2009 is to consider whether the accounts are prepared in accordance with
generally accepted accounting practice (GAAP) 3 . Where accounts are not
GAAP compliant the purchased goodwill is to be calculated as if the
company has prepared GAAP compliant accounts.
An apportionment adjustment under s.856(4) CTA 2009 can only be made in
the circumstances where assets have been acquired together with other
assets as part of one bargain and the values allocated to those particular
assets have not already been allocated a value in accordance with GAAP i.e.
fair value.
In practice, apportionment is only required in limited circumstances. For
example if a company has not applied acquisition accounting, or not applied
acquisition accounting correctly, and that failure is material (i.e. accounts are
not GAAP compliant) the adjustment is to be made under section 717(1) CTA
2009. However, if that failure is not material (so the accounts remain GAAP
compliant) then the adjustment will be made under section 856(4) CTA 2009.

2.6

3.

The various statutory provisions do not define the method of arriving at a just
and reasonable apportionment but any apportionment should generally seek
to apportion the price paid between the underlying assets included in the sale
on the basis of their relative values and the contribution they make to the price
that is being apportioned.

Legal Definitions of Goodwill


3.1

Halsbury's Laws of England, 4th edition, Vol. 35 at page 1206 states that:
The goodwill of a business is the whole advantage of the reputation and
connection with customers together with the circumstances whether of habit or

1
2

Section 715(3) CTA 2009.


Financial Reporting Standard.

This note does not take account of the recently issued UK accounting standard, FRS 102, approved
by the Financial Reporting Council in March 2013. This is only mandatory for accounting periods
beginning on or after 1 January 2015, although it may be adopted early if desired. It is not expected
there should be significant differences in practice to the principles applicable under existing UK GAAP.

otherwise, which tend to make that connection permanent 4 . It represents in


connection with any business or business product the value of the attraction to
the customers which the name and reputation possesses 5 .
3.2

The definition contained in the Shorter Oxford Dictionary is:


Goodwill is the privilege granted by the seller of a business to a purchaser of
trading as his recognised successor; the possession of a ready-formed
connection with customers considered as a separate element in the saleable
value of a business.

3.3

The leading legal authority on the meaning of goodwill is found in IRC v Muller
& Co Margarine Limited [1901] AC 217. In answer to the question "what is
goodwill?" Lord Macnaghten said:
It is a thing very easy to describe, very difficult to define. It is the benefit and
advantage of the good name, reputation and connection of a business. It is
the attractive force which brings in custom. It is the one thing which
distinguishes an old-established business from a new business at its first
stage.
Lord Macnaghten went on to say that:
Goodwill is composed of a variety of elements. It differs in its composition in
different trades and in different businesses in the same trade. One element
may preponderate here; and another there.

4.

3.4

In the decision of the Special Commissioners in Balloon Promotions Ltd v


Wilson, SpC 524 [2006] STC (SCD) 167, goodwill for CG purposes was
construed in accordance with legal rather than accountancy principles.

3.5

Traditionally goodwill has been subdivided into different types such as


inherent goodwill, adherent goodwill and free goodwill. These subdivisions
are no longer considered helpful as they tend to cause confusion. Inherent
and adherent goodwill are not really goodwill at all as they form part of the
value of the property asset and are properly reflected within such.

Trade Related Properties


4.1

Trade related property (TRP) is defined in the Royal Institution of Chartered


Surveyors (RICS) Guidance Note 2 (GN2) as any type of real property
designed for a specific type of business where the property value reflects the
trading potential for that business 6 . Examples include hotels, public houses,
restaurants, nightclubs, casinos, cinemas, theatres, care homes and petrol
filling stations.

4.2

The essential characteristic of this type of property is that it has been


designed or adapted for a specific use where the property value is usually

See Trego v Hunt [1896] AC 7 at 16, 17, 23, 27, HL and H P Bulmer Ltd and Showerings Ltd v J Bollinger SA
[1977] 2 CMLR 625, CA.
5
R J Reuter Co Ltd v Ferd Mulhens [1954] Ch 50 at 89, [1953] 2 All ER 1160 at 1179, CA per Evershed MR.
6

Royal Institution of Chartered Surveyors (RICS)

intrinsically linked to the returns an owner or occupier can generate from such
use.

5.

7
8

4.3

TRPs are often individual and exhibit unique features in terms of their location,
character, size, consents and levels of adaptation or construction specific to
their particular use. It is these features that lead to the need for specific
valuation treatment within the valuation profession, often utilising a profits
based methodology to determine market value. (This involves estimating the
trading potential of the property.)

4.4

Trading potential is defined in the RICS GN2 as the future profit, in the
context of a valuation of the property, that a reasonably efficient operator
would expect to be able to realise from occupation of the property. This could
be above or below the recent trading history of the property. It reflects a
range of factors such as the location, design and character, level of adaptation
and trading history of the property within the market conditions prevailing that
are inherent to the property asset 7 .

4.5

Reasonably efficient operator (REO) is defined as a concept where the


valuer assumes that the market participants are competent operators, acting
in an efficient manner, of a business conducted on the premises. It involves
estimating the trading potential rather than adopting the actual level of trade
under the existing ownership, and it excludes personal goodwill 8 . Assessing
the trading potential of the property will therefore entail a review of the existing
operators trading accounts and comparing the actual trading performance
with that of similar trade related property types and styles of operation. The
trading performance expected by a reasonably efficient operator may be the
same as, greater than or less than the actual trading performance.

Goodwill in Trade Related Properties


5.1

It has in the past been argued that because the business in TRPs is usually
largely or wholly incapable of being sold separately from the property there is
little or no goodwill (see the Lands Tribunal decision in Coles Executors v IRC
(1973) concerning the valuation of a public house for Estate Duty). On the
sale of a business operated from such properties, unless there were other
separately identifiable intangible assets included in the sale, the whole of the
purchase price would normally be apportioned to the property and chattels, it
being argued that there was no goodwill.

5.2

The above view was often put forward by purchasers seeking to claim Capital
Allowances on fixtures which formed part of the property. However, since the
introduction of SDLT and the provisions now contained in Part 8 CTA 2009,
HMRC has seen increasingly large sums apportioned to goodwill (away from
the underlying property) in order to maximise the claim under Part 8 CTA 2009
and minimise the amount of SDLT payable.

5.3

HMRC accept that if a business is sold as a going concern the sale may
include some element of goodwill. The question to be answered is not whether

Royal Institution of Chartered Surveyors (RICS)


Royal Institution of Chartered Surveyors (RICS)

goodwill exists, but what is the value of that goodwill? That question has to be
decided on the facts of each individual case and will vary depending on the
type of property and use. In some cases the value of the goodwill may be
nominal but in some it may be substantial.

6.

7.

Valuing Goodwill
6.1

There is a broad measure of agreement across the valuation, accountancy


and legal professions that the value of goodwill is represented by the
difference between the value of a business as a going concern and the value
of the separately identifiable assets included in the sale. HMRC consider that
the value of any goodwill in trade related properties should be arrived at by
deducting the value of the separately identifiable assets included in the sale
from the value of the business as a going concern.

6.2

The value of a business as a going concern will usually be represented by the


actual sale price achieved in the open market. However, if it is necessary to
value a business as a going concern, because the sale price was not at arms
length, then this is the responsibility of HMRC (SAV).

6.3

The value of the tangible assets is the responsibility of the VOA. If it is


necessary to value any other intangible assets (e.g. registered trademarks)
included in the sale then this is the responsibility of HMRC Shares and Assets
Valuation.

6.4

When the deductive method of arriving at the value of goodwill is adopted


difficulties may arise over the appropriate assumptions to be adopted when
arriving at a valuation of the other business assets. This is addressed in the
paragraphs below.

Valuing the Tangible Assets - Assumptions


7.1

Difficulties relating to the assumptions to be adopted when valuing the


tangible assets often arise in cases involving TRPs. Some of the reasons for
this are:
a. The established approach to valuation of this type of property typically
relies on the profits method (see paragraph 8 below). In applying this
valuation method there can sometimes be confusion in distinguishing
the income and trading potential that runs with the operational property
from any additional income arising from the actual operators business.
b. The value of such properties is often significantly reduced if the
property ceases to be occupied for any length of time because
customers go elsewhere and the purchaser has to rebuild the level of
trade. The enhanced value that arises as a result of the property
having been occupied by the vendor and any predecessors for the
particular use (ie. the propertys trading history) is part of what was
previously described as adherent goodwill but is properly part of the
property value and is reflected in the propertys trading potential,

c. The property value is often significantly reduced if the property is


stripped of chattels because the purchaser has to re-fit the premises
before being ready to trade.
d. It can sometimes be difficult to obtain new licences where these have
been lost.
7.2

The valuation of the tangible assets must reflect the facts at the valuation date
and not, for example, treat the property as stripped of chattels and empty of
occupiers when it was not. There should be no assumption of an empty and
bare property unless that is representative of the facts. If, contrary to the
evident facts, it were to be assumed for the purposes of valuation that the
property has lost any licences, been stripped of chattels and left vacant for a
period of time then the value will be significantly reduced and the value of
goodwill in the final apportionment, arrived at by deduction, would be
unreasonably inflated.
An assumption of vacant possession does not imply that the property is
empty, but that physical and legal possession will pass on completion. Any
parts of the property occupied by third parties is a matter of fact for
consideration within the valuation. For example, in relation to care homes the
presence of residents occupying under short terms licences at the valuation
date will be a consequence of the propertys established use and a fact to be
reflected in the property valuation. The valuer, or a purchaser, would
nevertheless still have to make a judgement as to how many residents may
choose to remain on a change of ownership. This may affect the timing and
level of anticipated income to be reflected in the valuation.

7.3

When arriving at the value of goodwill using the approach outlined in


paragraph 6 above, if all the tangible assets are included in the sale, it will
usually be appropriate to value all the tangible assets together for sale as an
operational entity so that a purchaser can, if they wish, trade from the day of
purchase . It is critical that this possibility is reflected to ensure a fair
apportionment of the sale price (and any premium arising from a sale of
combined assets) between the tangible and intangible elements so as to avoid
any over or understatement.

7.4

The valuation of the property should have regard to any established use or
trading history up to the valuation date as this may influence both the timing
and level of future income a purchaser would expect. A property that has been
operational up to the date of valuation is likely to have a higher value than one
that has been empty for six months because the purchaser will anticipate
greater certainty and immediacy of a trading income stream due to continued
customer patronage. Established use provides the likelihood of sustaining a
level of use and income generation for the REO and reduces the risk of delay a running start rather than a cold start.

7.5

Where the business is sold as a going concern, the benefit of contracts


entered into by the vendor with customers, staff and suppliers will normally
pass to the purchaser and be reflected in the price paid for the business.
However, these contracts do not form part of the tangible assets so, if they
add any value, the added value should not be reflected in the valuation of the
tangible assets. For example, in relation to a care home, prior to the sale the
residents would have contracts with the owner to reside at the property and
those contracts cannot be assumed to pass to a purchaser of the property.

However, many of the existing residents may wish to continue to reside in the
property following any change of ownership and those residents would be free
to enter into new contracts with the purchaser. Equally the purchaser of the
property may be prepared to pay an additional sum to the vendor (over and
above the property value) to acquire these contracts if it is perceived they
provide greater certainty and immediacy of full trading incomes (that is
goodwill or business value).
7.6

When arriving at the value of goodwill using the approach outlined in


paragraph 6 above it is considered appropriate to assume that the benefit of
any contracts with customers, staff and suppliers would either have to be
acquired separately from the vendor or the purchaser would have to make
their own arrangements. It would be open to a purchaser to make their own
arrangements with any existing customers, staff and suppliers who would be
likely to be happy entering into new contracts following a change of ownership.
For example, in relation to a public house, the existing operator may be
achieving a higher than expected profit margin because of a favourable supply
contract with a brewery. It cannot be assumed that the contract with the
brewery would pass to a purchaser of the property but the purchaser may be
able to enter into a similar contract with the existing supplier or another
brewery in which event this will be reflected within the market bid for the
property interest. This will be a matter of judgement on the facts and the
market prevailing.

7.7

Applying the assumptions in paragraph 7.4 will have different effects


depending on the facts in each particular case. For example:

7.8

a.

A small public house to be run by the purchaser with help from parttime bar staff. The purchaser has acquired the business as a going
concern but there are no contracts with customers and the purchaser
wishes to enter their own contracts with suppliers and employ their
own staff. In such a case there may be no identifiable difference
between the price paid for the business as a going concern and the
price that a purchaser would pay to acquire all the tangible assets. In
such a case the value of the goodwill may be nominal.

b.

A specialist care home that is fully occupied by residents and is to be


run by the purchaser with the help of full-time qualified staff. There
may be a difference between the price paid for such a business as a
going concern and the price a purchaser would pay to acquire all the
tangible assets, depending on the degree of difficulty the purchaser
might anticipate in securing full occupancy and staffing (see paragraph
8.3 below). In such a case the value of the goodwill may be more
substantial.

When purchasing such a business as a going concern the purchaser will often
have obtained a valuation of the tangible assets as an operational entity in
accordance with the RICS GN2 (see paragraph 10 below). In addition, an
alternative valuation of the property based on special assumptions (e.g.
vacant following a failure of the business, no accounts providing evidence of
trade, stripped of chattels and licences lost) may also be obtained for bank
lending purposes. For the purposes of calculating the value of goodwill it
would not be appropriate to deduct a valuation based on such special
assumptions that do not reflect the actual circumstances prevailing at the
valuation date. It is important to recognise that the valuation of the property as

an operational entity is a value of the property with chattels and readily


available licences and is not a valuation of the actual business as a going
concern (see paragraph 10 below). Whilst GN2 states that it does not apply to
apportionments for tax purposes, HMRC/VOA consider that for the purpose of
arriving at the value of goodwill (see paragraph 11.2, Step 2, below), it should
normally be acceptable to deduct a GN2 valuation of the operational entity as
reflecting the established valuation approach to properties of this nature. RICS
UKGN 3 provides guidance on valuations and apportionments for tax
purposes and HMRC/VOA consider that, if all the tangible assets are
prudently lotted together as an operational entity, a valuation in accordance
with UKGN 3 would not give a lower figure.

8.

Valuing the Tangible Assets the Profits Approach


8.1

8.2

When valuing the tangible assets of an operational TRP, the aim should
normally be to arrive at a capital value that fairly represents the price that an
owner-occupier purchaser would be prepared to pay to acquire all the tangible
assets together, having regard to the circumstances existing at the valuation
date. Having decided on the appropriate assumptions (see paragraphs 7.3 7.6 above) it is then necessary to consider the most appropriate method of
valuation. The appropriate method of valuation is a matter for the valuer
having regard to the facts, but most TRPs are valued using the profits method
of valuation. This valuation method requires consideration of both the level
and timing of estimated trading income and is described in detail in the RICS
GN2 but essentially it involves the following:

The valuer makes an assessment of the fair maintainable turnover


(FMT) that could be generated by a reasonably efficient operator
(REO) of the operational entity that is fully equipped and ready to
trade.

From this an assessment is made of the fair maintainable operating


profit (FMOP) reflecting the costs to be expected by a REO.

The market value of the property as an operational entity is then


assessed by capitalising the FMOP at an appropriate rate of return
reflecting the risks and rewards of the property and its trading
potential.

A valuation of the tangible assets using the profits method has the following
advantages:
a.

it is widely used in the market to arrive at both going concern values


and valuations of the tangible assets as an operational entity under the
RICS GN2.

b.

it represents the value to an owner-occupier purchaser.

c.

the purchase price paid for the going concern and any GN2 valuation
of the tangible assets as an operational entity can be analysed to
provide evidence of the FMT/FMOP and a multiplier for the actual
subject property at the valuation date.

d.

8.3

9.

it produces a value for all the tangible assets to be valued together as


a single operational entity.

When assessing the FMT/FMOP it must be remembered that in cases where


the existing contracts with customers, staff and suppliers are of some
additional value it is necessary to have regard to this in the valuation. A valuer
looking to determine the value of the operational property alone may have to
make difficult judgements on whether staff and customers would choose to
stay with the property or would realistically take their custom elsewhere if the
property were to change hands. Whether this affects the value of the property
or not will depend on the facts of the case and the market conditions
prevailing at the valuation date. In cases where it is considered that there may
be some delay before the REO could achieve the expected FMT/FMOP, this
may either be reflected in the rate of return at which the FMT/FMOP is
capitalised or a more specific discount may be made to reflect the reduced
FMT/FMOP during the period whilst the trade is built up to the expected level.

Valuing the Tangible Assets the Investment Method


9.1

A valuation based on the investment method (capitalising an estimated rental


value) may be useful in some cases but as a primary method of valuation in
apportionment cases the difficulties and flaws of this method are as follows:
a.

arriving at the capital value involves making difficult judgements not


only about the FMT/FMOP but also the percentage of profits to adopt
as the rental value and the appropriate investment yield, both of which
can only be derived from comparison with lettings and sales of other
properties at different dates, which significantly increase the scope for
disputes over the analysis and comparability of the evidence.

b.

the available comparable rental evidence will relate to new lettings of


properties that have either not previously been let, have been vacant
or have had rent reviews/renewals that disregard the occupation of the
property by the tenant and predecessors in title in accordance with
s.34 Landlord and Tenant Act 1954.

c.

the approach requires the valuer to assume a hypothetical lease is in


place which introduces the possibility of a range of hypothetical
assumptions as to the nature of the lease and associated terms, each
of which could result in a different valuation conclusion.

d.

the comparable rental evidence will relate to lettings where the tenant
has had to provide the chattels and the return on this capital and risk is
reflected in the rents paid.

e.

the valuation using this approach represents the value of the property
to an investor not an owner-occupier: the RICS GN2, paragraph 8.3,
notes that the capitalisation rate adopted for investment valuations
differs from that for vacant possession values.

f.

the valuation produces a valuation of the property only to which it


is then necessary to add a valuation of the chattels. It will not include
the premium value to an occupier of acquiring the tangible assets
together as a package with the enhanced trading potential due to the

10

established trading history and the ability to continue trading from day
one. Isolating the bare property asset may unfairly apportion any
premium or share of marriage value away and overstate the intangible
elements.
9.2

However, in cases where there are particular difficulties in arriving at a


valuation using the profits method the investment method may provide a guide
as to the minimum value of the property to an incoming purchaser.
Example
A simple example of the problems with the rental approach may be illustrated
by considering a small public house like the one described in paragraph 7.7(a)
above:
Say the property was trading at no more than FMT/FMOP level, it had been
sold as a going concern for 1m and an analysis of this sale price was say
FMOP 125k pa x 8YP (Years Purchase).
For illustration purposes, the rental value on a new letting without chattels may
be say 62,500 and an investment yield may be say 8%. This would give a
capital value of 781,250 leaving a balance of 218,750. If the in situ value of
the chattels was say 50,000 this would leave a sum of 168,750 being
attributed to the goodwill when in reality most valuers would agree that the
purchaser had acquired nothing of any value beyond the value of the tangible
assets. The excess is artificially created because the valuation of the property
reflects its notional investment value whereas, just as with some other classes
of property, the owner-occupier market is influenced by different factors and
the price an owner-occupier may pay is not always the same as an investor.

10.

RICS Red Book GN2 - Valuations of the Operational Entity


10.1

As indicated above, when purchasing a business operated from a TRP as a


going concern the purchaser will often have obtained a valuation of the
tangible assets as an operational entity in accordance with the RICS Red
Book GN2 - Valuation of Individual Trade Related Properties. The new GN2
(issued in May 2011) has helpfully clarified some of the areas of uncertainty
that existed in the old GN1 that it replaced.

10.2

The guidance makes it clear that a valuation in accordance with GN2 should
relate only to the valuation of an individual property valued on the basis of
trading potential. The valuation is of the property as a 'place to do business',
not a valuation of the actual business itself. Valuations of businesses are
covered in separate guidance. GN2 makes it clear that the trading potential of
the property should be properly reflected within the property value and that the
current operators goodwill (personal goodwill) is not to be reflected.

10.3

GN2 also makes it clear that the operational entity usually includes:

the legal interest in the land and buildings;


the trade inventory, usually comprising all trade fixtures, fittings,
furnishings and equipment; and

11

the markets perception of the trading potential, together with an


assumed ability to obtain/renew existing licences, consents,
certificates and permits. 9

10.4

Whilst GN2 states that it does not apply to apportionments for tax purposes,
HMRC/VOA consider that for the purpose of arriving at the value of goodwill
(see paragraph 11.2, Step 2, below), it should normally be acceptable to
deduct a GN2 valuation of the operational entity as reflecting the established
valuation approach to properties of this nature.

10.5

GN2 provides guidance on the valuation of individual TRPs. When


establishing the value of a portfolio of properties (whether they be TRPs or
not), it is important to consider whether the sum of individual values would be
enhanced by a portfolio premium (see RICS GN3).

.
11.

Apportionment Approach CGT and SDLT cases


11.1

In CGT and SDLT cases the apportionment of the sale price paid for a
business as a going concern should be approached by first identifying the
value of any goodwill (and other separately identifiable intangibles assets)
along the lines described in paragraphs 6 10 above. After deducting this
from the total sale price, the in-situ value of the chattels may then be deducted
to leave the value of the property.

11.2

In practice, to arrive at the sum attributable to the property, the approach


outlined in paragraph 11.1 above will involve the following steps:

11.3

Step 1

Estimate the market value of all the tangible assets


together as an operational entity having regard to the
guidance above. (See paragraph 11.3 below.)

Step 2

Identify the sum attributable to goodwill and any other


intangible assets included in the sale by deducting the
value of the property, licences and chattels (Step 1
value) from the sale price (or market value) of the
business as a going concern. (See paragraph 11.4
below.)

Step 3

Identify the sum attributable to the chattels by


estimating their in-situ value (i.e. the value to an
incoming purchaser. (See paragraph 11.5 below).

Step 4

Identify the sum attributable to the property by


deducting the value of the chattels (Step 3 value) from
the Step 1 value. (See paragraph 11.6 below).

Step 5

Stand back and consider whether the answer produced


is reasonable in the particular circumstances of the
case. (See paragraph 11.7 below).

Step 1

Royal Institution of Chartered Surveyors (RICS)

12

The market value of the tangible assets should be assessed as at the date of
disposal/sale on the basis defined in UKGN3 (Valuations for CGT, IHT and
SDLT) reflecting the assumptions in paragraphs 7.2 and 7.4 above.
HMRC/VOA consider that, for the purpose of arriving at the value of goodwill,
it should normally be acceptable to deduct a GN2 valuation of the operational
entity.
In particular the valuation should reflect the following:

11.4

a.

the market's perception of the trading potential of the property


excluding the actual operators goodwill (and any super profits beyond
the expected FMT).

b.

the benefit of any transferable licences, consents and certificates. (If


any of the licences etc have been lost or are in jeopardy at the valuation
date that fact should be reflected in the valuation) 10 .

c.

all the facts pertaining at the valuation date such as the availability of
possession, the fact that the property is fully equipped and ready to
trade, the fact that the property was in use up to point of transfer etc.

d.

the assumption that any accounts available to the purchaser are


available at the valuation date to inform judgments as to reasonable
future trading potential.

e.

that the purchaser may either bring in their own staff or seek to reemploy some of the existing staff.

f.

that the purchaser will take into account the likelihood of any future
bookings sticking with the property if they choose to run the business in
the same manner as the vendor.

g.

that the purchaser will take into account the likelihood of any existing
care home residents opting to stay with the property if they choose to
run the business in the same manner as the vendor.

Step 2
The sum attributable to goodwill and any other intangible assets included in
the sale should be arrived at by deducting the value of the tangible assets
(from Step 1 above) from the sale price (or market value) of the business.

11.5

Step 3
The sum attributable to any chattels included in the sale should be arrived at
by estimating the value of the chattels to an incoming purchaser. The value of
the chattels to an incoming purchaser will normally be based on their
depreciated replacement cost but in some cases they may be of no value, for
example, if the purchaser intends to refit the premises.

10

Some licences may be a separate asset for CGT purposes

13

11.6

Step 4
The sum attributable to the property should be arrived at by deducting the
value of the chattels (the Step 3 value) from the value of the tangible assets
(the Step 1 value).

11.7

Step 5
Caseworkers should always stand back and consider whether the answer
produced by the above approach is reasonable in the particular circumstances
of the case. For instance, if a business is sold in an arms length transaction at
a price that is significantly in excess of the market value of the business as a
going concern it may be appropriate to firstly value the business and then
apportion the excess sale price on a pro-rata basis.

Example:
Sale price
Market value of business

=
=

600,000
500,000

Property
Chattels
Goodwill
Total

=
=
=
=

450,000
20,000
30,000 (i.e. 500,000 (450,000 + 20,000))
500,000

=
=
=

450/500 x 600,000
20/500 x 600,000
30/500 x 600,000

Pro-rata apportionment:
Property
Chattels
Goodwill
Total

=
=
=
=

540,000
24,000
36,000
600,000

11.8

A criticism of the above approach may be that it adopts a deduction approach


and such an approach was criticised by the High Court in the case of Bostock
v Totham (HMIT). However, the above approach does not just consider the
value of one element - the taxpayers approach which was criticised in the
Bostock case but rather it considers the value of all elements on a basis that
reflects the contribution of the various elements to the price being
apportioned. If one were to value all of the elements in strict isolation then the
apportionment may become artificially distorted to the extent that the answer
may not be just and reasonable. For instance, the property value in isolation
may be less than when it is lotted with the other tangible assets, the value of
the chattels if not sold in-situ with the property may be little more than scrap
value and any goodwill may be of nominal value if the business is not sold
with the property as a going concern.

11.9

Taxpayers may also challenge the above approach based on the Special
Commissioners decision in the case of Balloon Promotions Limited v Wilson
(Insp of Taxes) in which it was suggested that goodwill should be looked at as
a whole and that the value of adherent goodwill was not automatically
subsumed in the property value. The decision of the Special Commissioner in
the Balloon case concerned appeals against a refusal to grant rollover relief
under S152 of the Taxation of Chargeable Gains Act 1992 in respect of
chargeable gains following the sale of the Companys franchised Pizza

14

Express restaurants to the franchisor. Whilst the decision includes discussion


of existing legal authorities dealing with goodwill the conclusions reflect the
particular circumstances of the case. It is worth noting that in this case the
values of the property interests submitted by the taxpayers were not
challenged and there was no evidence to demonstrate whether or not those
values included adherent goodwill. As previously mentioned, the subdivisions
of goodwill that were previously used are no longer considered helpful as they
tend to cause confusion. The view now is that what used to be referred to as
inherent and adherent goodwill are, in reality, attributes which add value to
the property in which a business is carried on and that they do not represent
goodwill at all.

12.

Residual Approach Part 8 CTA 2009 cases


12.1

As noted above (paragraph 2.4), for the purpose of calculating the cost of
purchased goodwill Part 8 CTA 2009 provides that goodwill has the meaning
it has for accounting purposes. UK GAAP (FRS10 Goodwill and intangible
assets) provides that purchased goodwill should be taken to be the
"difference between the cost of an acquired entity and the aggregate of the
fair values of that entity's identifiable assets and liabilities. Positive goodwill
arises when the acquisition cost of the entity exceeds the aggregate fair
values of the identifiable assets and liabilities. Negative goodwill arises when
the aggregate fair values of the identifiable assets and liabilities of the entity
exceed the acquisition cost". Thus, purchased goodwill recognised for
accounting purposes is a residual 11 . For the avoidance of doubt, purchased
goodwill only arises for accounting purposes where there has been a business
acquisition (combination).

12.2

UK GAAP (FRS 7 Fair values in acquisition accounting) requires fair values to


be used in measuring the identifiable assets and liabilities of an acquired
business at the date of acquisition and that the identifiable net assets which
should be recognised (as forming part of the business combination) to be
measured at fair values that reflect conditions at the date of acquisition.
FRS 7, para. 9 requires that the fair value of a tangible fixed asset should be
based on:

12.3

a.

market value, if assets similar in type and condition are bought and
sold on an open market [as here]; or

b.

depreciated replacement cost [generally not applicable here].

In determining what is meant by market value within FRS 7, FRS 15


(Tangible fixed assets) is instructive, paragraphs 53 and 56 in particular
(notwithstanding they are in the section of the standard dealing with revalued
properties). FRS 15 is authoritative literature which explains what is meant by
market value in the context of valuing property. Paragraph 85 also provides
support that for TRPs trading potential is reflected within the value of, and is
inseparable from, the property.

11

IFRS 3, (Appendix A) defines goodwill as; [a]n asset representing the future economic benefits arising from
other assets acquired in a business combination that are not individually identified and separately recognised.

15

FRS 15, para. 53 (inter alia) states:


The following valuation bases should be used for revalued properties
that are not impaired:
(a) non-specialised properties should be valued on the basis of
existing use value (EUV) .

FRS 15, para. 56 states:


Certain types of non-specialised properties are bought and sold, and
therefore valued, as businesses. The EUV of a property valued as an
operational entity is determined by having regard to trading potential,
but excludes personal goodwill that has been created in the business
by the present owner or management and is not expected to remain
with the business in the event of the property being sold.

FRS 15, para. 85 states:


"It would not be appropriate, however, to treat the trading potential
associated with a property that is valued as an operational entity, such
as a public house or hotel, as a separate component where the value
and life of any such trading potential is inherently inseparable from that
of the property".

Therefore, for non-specialised properties (which include TRPs), HMRC


considers the use of an EUV basis of valuation is required by UK GAAP in the
context of the fair value exercise in a business acquisition.
Furthermore, there is support for using EUV to determine the fair value of
non-specialised properties in PwCs Manual of accounting (UK GAAP). This,
inter alia, states that in acquisition accounting, properties that would normally
be valued under the alternative accounting rules [i.e. within the revaluation
option within FRS 15 12 ] on an existing use value basis in the acquired
companys financial statements (that is those occupied for the purpose of the
business) would also usually be valued on this basis in the fair value
exercise 13 .
Although PwC add that there may be some confusion as to what market
value means The most commonly used bases are market value and
existing use value 14 , they go on to comment that existing use value is the
basis normally used for valuing properties that are occupied in the company's
business 15 .
12.4

12
13

For companies preparing accounts under IFRS 16 , the relevant accounting


standards are IFRS 3 (Business Combinations), IFRS 13 (Fair Value
Measurement) and IAS 16 (Property, Plant and Equipment). In general,
though in particular circumstances there may be exceptions (e.g. market value
and fair value may not be the same), it is not considered likely in relation to
TRPs there will be substantial differences between accounts drawn up under

HMRC comment within parentheses.

2012 edition, see paragraph 25.267.


14
2012 edition, see paragraph 25.262.
15
2012 edition, see paragraph 25.265.
16
International Financial Reporting Standards.

16

UK GAAP and IFRS (unless, in IFRS, market or other factors suggest that a
different use by market participants would maximise the value of the asset).

13.

12.5

Negative goodwill (i.e. a gain resulting from a bargain purchase) can arise,
under both UK GAAP and IFRS. Within UK GAAP, negative goodwill is
carried on the balance sheet and recognised in the profit and loss account in
the periods in which non-monetary assets are recovered (by depreciation or
disposal) or in which the benefits are expected to be realised. Within IFRS,
however, the gain resulting from a bargain purchase is recognised in profit or
loss on the acquisition date.

12.6

In HMRCs view, for TRPs, the EUV of the tangible assets required for the
purpose of calculating the cost of purchased goodwill under Part 8 CTA 2009
will normally be represented by the market value of the assets as an
operational entity, in accordance with the guidance contained in the RICS
GN2.

Leasehold Interests
13.1

In some cases it will be necessary to apportion the price paid for a leasehold
interest but the same principles apply. The valuations and apportionment
should be approached using the same assumptions and approach described
above.

13.2

It should be borne in mind that for TRPs it is not uncommon for leasehold
interests to be sold for substantial premiums even when the rent has recently
been reviewed. The premium in such cases may be attributable to any or all of
the following:
a.

The reviewed rent may not reflect the full rental value because it may
disregard the enhanced trading potential attributable to the occupation
of the property by the tenant and predecessors (in accordance with
s.34 LTA 1954).

b.

The reviewed rent may not reflect the value of improvements carried
out by the tenant or predecessors when fitting out the property (in
some cases the rent may only represent a shell rent).

c.

The value of the chattels and fittings belonging to the tenant.

d.

The premium value to an occupier of offering the tangible assets


together as a package with the enhanced trading potential due to the
established trading history and the ability to continue trading from day
one.

e.

There may be some element of goodwill, particularly if the business is


trading at above FMT level and contracts of some value are included in
the sale.

f.

There may be other separately identifiable intangible assets included


in the sale (eg. registered trade marks).

17

g.

13.3

14.

Market perception and prevailing conditions whereby it is expected


there will be some key money or premium to acquire the interest in
order to move in to this market sector or specific trading location.

The value of any goodwill and other intangible assets included in the sale
should be determined by adopting the same valuation assumptions and
approach outlined in paragraphs 7 and 8 above.

Examples
14.1

Examples illustrating the application of the approaches outlined in paragraphs


11 and 12 above are set out in Appendix 1.

18

APPENDIX 1
Examples
All the figures used in the examples below are for illustrative purposes only.
Example 1
The Facts
A owns and runs a public house. The business has been struggling for some years because
the owner is nearing retirement and has lost interest in the business. The level of trade has
fallen over the last 2 years and profit margins are low because wage costs are higher than
would be expected due to overstaffing.
The Figures
The salient figures are as follows:

FMT the actual trade based on an average of the last two years accounts is only
445k pa but the estimated FMT (assuming a reasonably efficient operator 17 ) is
500k pa.
FMOP the actual operating profit is only 70k pa but the estimated FMOP 18 ,
reflecting lower wage costs, is 125k pa.
The business has been sold as a going concern for 875k. This price reflects the
potential to increase the trade up to the FMOP level but also the possible delay
before this level of trade could be achieved.
The chattels are included in the accounts at a net book value of 25k but their market
value to an incoming purchaser would be 35k.
The market value of the property as an operational entity is 875k. This is based on a
FMOP of 125k pa x 7 Years Purchase (YP).
The market value of the property based on special assumptions is 450k (this
assumes that the property has been empty and closed for 6 months, no trading
accounts are available, the chattels have all been removed, the licences have been
lost and a sale is required within 180 days).
The purchaser claims that the sum that should be attributed to goodwill is the
purchase price less the separate values of the property (assuming it to be empty etc)
and the chattels, ie. 875k (450k + 25k) = 400k.

Apportionment for SDLT Purposes

17

Reasonably efficient operator is defined as a concept where the valuer assumes that the market participants
are competent (but not exceptional) operators, acting in an efficient manner, of a business conducted on the
premises. It involves estimating the trading potential rather than adopting the actual level of trade under
the existing ownership. ( Royal Institution of Chartered Surveyors).
18

Fair Maintainable Operating Profit (FMOP) is defined as the level of profit, stated prior to depreciation and
finance costs relating to the asset itself (and rent if leasehold), that the reasonably efficient operator (REO) would
expect to derive from the fair maintainable turnover (FMT) based on an assessment of the markets perception of
the potential earnings of the property. It should reflect all costs and outgoings of the REO, as well as an
appropriate annual allowance for periodic expenditure, such as decoration, refurbishment and renewal of the
trade inventory ( Royal Institution of Chartered Surveyors).

19

The HMRC/VOA approach to the apportionment required for SDLT purposes would be as
follows:

The value of the goodwill, reflecting its value when sold with the property, is the sale
price paid for the business as a going concern less the value of all the tangible
assets as an operational entity. In this case that would be 875k - 875k = nil.
However, as the business has been sold as a going concern something needs to be
apportioned to goodwill so a nominal sum of 1 is adopted, leaving a net sale price of
874,999.
The sum attributed to the property is in this case the net sale price (874,999) less
the value of the chattels, reflecting their value when sold with the property (35k),
which is 839,999.

Calculation of Goodwill Figure for Relief Under Part 8 CTA 2009


The HMRC/VOA approach to the calculation of the sum paid for goodwill for the purposes of
relief under Part 8 CTA 2009 would be as follows:

Price paid for the going concern less the value of the tangible assets as an
operational entity, ie. 875k - 875k = nil.

Example 2
The Facts
B owns and runs a public house. The business has been exceptionally well run for a number
of years. The level of trade and profits are much higher than would be expected for a similar
pub in this location.
The Figures
The salient figures are as follows:

FMT the actual trade based on an average of the last two years accounts is 600k
pa but the estimated FMT (assuming a reasonably efficient operator) is only 500k
pa.
FMOP the actual operating profit is 180k pa but the estimated FMOP, reflecting
typical profit margins, is only 125k pa.
The business has been sold as a going concern for 1.1m. This price reflects the
purchasers belief that they can continue to operate the business in the same manner
as the vendor and sustain at least a proportion of the exceptional actual level of
profits.
The chattels are included in the accounts at a net book value of 25k but their market
value to an incoming purchaser would be 40k.
The market value of the property as an operational entity (excluding exceptional
profits) is 950k. This is based on a FMOP of 125k pa x 7.6 Years Purchase (YP)
based on evidence of other sales and reflecting a sustainable volume of trade for the
property.
The market value of the property based on special assumptions is 550k (this
assumes that the property has been empty for 6 months, no trading accounts are
available, the chattels have all been removed, the licences have been lost and a sale
is required within 180 days).

20

The purchaser claims that the sum that should be attributed to goodwill is the
purchase price less the separate values of the property (assuming it to be empty etc)
and the chattels, ie. 1.1m (550k + 25k) = 525k.

Apportionment for SDLT Purposes


The HMRC/VOA approach to the apportionment required for SDLT purposes would be as
follows:

The value of the goodwill, reflecting its value when sold with the property, is the sale
price paid for the business as a going concern less the value of all the tangible
assets as an operational entity. In this case that would be 1.1m - 950k = 150k.
The sum attributed to the property is in this case the value of the tangible assets as
an operational entity (950k) less the value of the chattels, reflecting their value
when sold with the property (35k), which is 915k.

Calculation of Goodwill Figure for Relief Under Part 8 CTA 2009


The HMRC/VOA approach to the calculation of the sum paid for goodwill for the purposes of
relief under Part 8 CTA 2009 would be as follows:

Price paid for the going concern less the value of the tangible assets as an
operational entity, ie. 1.1m - 950k = 150k.

Example 3
The Facts
A owns and runs a modern residential care home. The business has been run in a
reasonably efficient but not exceptional manner for a number of years. The occupancy rate,
fees and level of profits are what would be expected for a similar residential care home in this
location.
The Figures
The salient figures are as follows:

FMT the actual trade based on an average of the last two years accounts is 935k
pa and this accords with the valuers estimate of FMT (assuming a reasonably
efficient operator)
FMOP the actual operating profit is 330k pa and the estimated FMOP is also
330k pa.
The business has been sold as a going concern for 2.3m. This price reflects the
purchasers belief that they can continue to operate the business in the same manner
as the vendor and maintain the actual level of trade. This is based on the actual
operating profit of 330k pa x 7 Years Purchase (YP).
The chattels are included in the accounts at a net book value of 75k and their market
value to an incoming purchaser would be 75k.
The market value of the property as an operational entity is 2.2m. This is based on a
FMOP of 330k pa x 6.7 Years Purchase (YP). The YP reflects the risk that on a
change of ownership some residents and staff may choose to move elsewhere and
there may therefore be some delay before the full FMOP is achieved.

21

The market value of the property based on special assumptions is 1.4m (this
assumes that the property has been closed for 3 months, no trading accounts are
available, the chattels have all been removed, the licences have been lost and a sale
is required within 180 days).
The purchaser claims that the sum that should be attributed to goodwill is the
purchase price less the separate values of the property (assuming it to be empty etc)
and the chattels, ie. 2.3m (1.4m + 75k) = 825k.

Apportionment for SDLT Purposes


The HMRC/VOA approach to the apportionment required for SDLT purposes would be as
follows:

The value of the goodwill, reflecting its value when sold with the property, is the sale
price paid for the business as a going concern less the value of all the tangible
assets as an operational entity. In this case that would be 2.3m - 2.2m = 100k.
The sum attributed to the property is in this case the value of the tangible assets as
an operational entity (2.2m) less the value of the chattels, reflecting their value
when sold with the property (75k), which is 2.125m.

Calculation of Goodwill Figure for Relief Under Part 8 CTA 2009


The HMRC/VOA approach to the calculation of the sum paid for goodwill for the purposes of
relief under Part 8 CTA 2009 would be as follows:

Price paid for the going concern less the value of the tangible assets as an
operational entity, ie. 2.3m - 2.2m = 100k.

Example 4
The Facts
B owns and runs a modern residential care home. The business has been very well run for a
number of years with the owner working all hours. Whilst the occupancy rates, fees and level
of profits are all higher than would be expected for a similar residential care home in this
location, wage costs are lower than considered appropriate.
The Figures
The salient figures are as follows:

FMT the actual trade based on an average of the last two years accounts is 950k
pa but the estimated FMT is only 900k pa.
FMOP the actual operating profit is 400k pa but the estimated FMOP is only 330k
pa.
The business has been sold as a going concern for 2.525 m. This price reflects the
purchasers belief that they can continue to operate the business in the same
exceptional manner as the vendor and maintain the actual level of occupancy, fees
and profits. This is based on the actual operating profit of 400k pa x 6.3 Years
Purchase (YP).
The chattels are included in the accounts at a net book value of 50k and their market
value to an incoming purchaser would be 50k.

22

The market value of the property as an operational entity is 2.3m. This is based on a
FMOP of 330k pa x 6.95 Years Purchase (YP). The YP reflects the risk that on a
change of ownership some residents and staff may choose to move elsewhere and
there may therefore be some delay before the full FMOP is achieved.
The market value of the property based on special assumptions is 1.575m (this
assumes that the property has been closed for 3 months, no trading accounts are
available, the chattels have all been removed, the licences have been lost and a sale
is required within 180 days).
The purchaser claims that the sum that should be attributed to goodwill is the
purchase price less the separate values of the property (assuming it to be empty etc)
and the chattels, ie. 2.525m (1.575m + 50k) = 1m.

Apportionment for SDLT Purposes


The HMRC/VOA approach to the apportionment required for SDLT purposes would be as
follows:

The value of the goodwill, reflecting its value when sold with the property, is the sale
price paid for the business as a going concern less the value of all the tangible
assets as an operational entity. In this case that would be 2.525m - 2.3m = 225k.
The sum attributed to the property is in this case the value of the tangible assets as
an operational entity (2.3m) less the value of the chattels, reflecting their value
when sold with the property (50k), which is 2.25m.

Calculation of Goodwill Figure for Relief Under Part 8 CTA 2009


The HMRC/VOA approach to the calculation of the sum paid for goodwill for the purposes of
relief under Part 8 CTA 2009 would be as follows:

Price paid for the going concern less the value of the tangible assets as an
operational entity, ie. 2.525m - 2.3m = 225k.

23