If a taxpayer owns a business as a sole trader or in partnership, a capital gain will be deemed to arise if the business is converted into a company by reference to the market value of the business assets including goodwill. This may give rise to a chargeable gain based broadly on the difference between the market value of the assets and their original cost.

A number of options exist in such situations. One of these involves arranging the incorporation of the business so that it satisfies the conditions necessary to secure incorporation relief. One such condition is that the entire business must be transferred as a going concern in exchange for shares in the new company. It is important to note that where the necessary conditions are met, incorporation relief is given automatically and there is no need to make a claim. The relief works by reducing the base cost of the new assets by a proportion of the gain arising from the disposal of the old assets.

However, there may be certain circumstances where this relief may not always be advantageous, and it is possible to make an election in writing for incorporation relief not to apply. An election must be made before the second anniversary of 31 January next following the tax year in which the transfer took place e.g. an election in respect of a transfer made in 2018-19 must be made by 31 January 2022. The election deadline is reduced by one year if the shares are disposed of in the year following that in which the business was incorporated.