Sometimes a group of companies which has reorganised itself will want to backdate some of those changes, perhaps to backdate an intra-group transfer of business so that it coincides with the previous year end.
Here are some guidelines as to what may be possible from a legal perspective.
Different considerations may apply from accounting and tax perspectives, and those aspects should be taken into account too.
This would be fraud, and would be likely to expose those involved to a number of different criminal offences.Documenting what happened in the past What you can do is document a transaction which has actually happened in the past which had not been formalised.For example, one group company may have lent money to another group company without documenting the arrangements in a written loan agreement.In this case the fact that the transaction did happen is a matter of record, and the relevant records may include accounting entries as well as entries on bank statements.Similar situations may arise in relation to intra-group supplies of goods of services, or transfers of a business (where the associated transfer of employees may also be a matter of record).
In this kind of situation, the following general approach should be considered: – the relevant arrangements can be documented in the appropriate form, such as a loan agreement or business transfer agreement.
It is helpful if the recitals to the agreements describe the history of what actually happened, when it happened and what evidence of this exists. when actually signed), but can refer to the historic transaction date.
– in some cases specific legal formalities may need to be complied with in order to perfect the transaction.
For example, a transfer of land may need to be documented in writing and registered in order to be effective.
You will need to analyse the different elements of the transaction and consider whether as a matter of substance it is fair to say that the transaction did actually happen on the historic date.
In the case of a transfer of assets, you may need legal advice as to whether the beneficial interest in those assets has already passed, even though some formalities still need to be completed.