Should you be concerned about structuring a sale by way of a transfer of a going concern?

Anyone proposing to enter into a transfer of a going concern (“TOGC”) should do so with caution and seek tax advice. In a recent case, a buyer was intending to use the property it was purchasing, in part for itself and in part for letting. No letting arrangements had been established when the deal was initially agreed, but the buyer secured a tenant to sign up on the day of completion. Under this arrangement the tenant took only a small part of the property and this was conditional on the sale to the buyer going through. On the facts, the Tribunal decided that it was not a TOGC. There may be cases where it is possible for the buyer to introduce a tenant and still successfully treat it as a TOGC, but it would be especially important to secure the tenant on a standalone basis and consider the facts carefully in the context of this judgement.