UK: Tax Update - Monday 6 September 2010

Last Updated: 7 September 2010
Article by Smith & Williamson

1. General news

1.1. HMRC complaints handling

HMRC has published online guidance on their complaints handling procedure, covering Preventing Complaints, Standards for Dealing with Complaints, Recognising and Defining a Complaint, Avenues for Complaints Recording Complaints, Dealing with Complaints, Cross Business Complaints, Complaints about Staff Conduct, Persistent and Vexatious Complaints, Complaints received via Elected Representatives, Complaints to the Chairman or Ministers, Complaints to the Adjudicator's Office, Complaints to the Parliamentary Ombudsman, Financial Redress and Learning from Complaints.

www.hmrc.gov.uk/manuals/chgmanual/CHG200.htm

The section on dealing with complaints set out below contains an interesting comment (highlighted) on complaints regarding delayed repayments.

"Recognise that taking the trouble to explain well and apologise is good customer service. It is not "being soft", "letting the side down" or "wasting time".

Customers complain because they are unhappy with our service. This may be because:

  • something has gone wrong;
  • someone did not follow the correct procedures;
  • the correct procedures were followed, but the customer thinks otherwise;
  • the customer may be unhappy with the law or our policy;
  • the customer may not have understood a form or letter;
  • there may have been a breakdown in communication;
  • the customer feels that they have been treated unfairly by our systems or procedures;
  • the customer feels that they have been treated badly or unfairly by someone in the department.

Complaints should be acknowledged promptly and courteously.

Put yourself in the customer's shoes. Try to see the problem from their point of view. Accept that the customer is concerned about something and see what you can do about it.

Make sure that you fully understand what the customer is unhappy about before you respond. It is a good idea to summarise the complaint in your own words. This shows that you understand the customer's concern and focuses your response.

Your aim should always be to settle the complaint as thoroughly and quickly as possible. Whether you find anything wrong or not your reply should acknowledge and address the customer's concerns. If there is something wrong you should apologise, explain where we went wrong (and why, if we know why) and what we are doing to correct matters. If you find that there is nothing wrong you should nonetheless acknowledge the customer's concerns but explain that we have acted correctly. Ensure that your response covers all the customer's concerns and check that it is accurate and technically correct.

Be aware that sometimes customers say they want to "appeal" against a decision when what they really mean is they want to have their case reviewed by a higher authority. Also customers may say they want to complain when really the appropriate avenue is an appeal or review. Ensure that you direct the customer to the correct route.

If there is a complaint about a delayed repayment, aim to deal with the repayment claim at the same time as the complaint. A provisional repayment may be appropriate in some, limited, cases but remember that our aim is to settle the complaint completely within 15 working days. You should not offer a provisional repayment as a matter of course.

Check that similar mistakes in the past have not been overlooked. Ensure that you carry out a thorough examination of the case. Your examination may disclose errors on the customer's part. If you do discover customer's errors:

  • point them out only if they are material;
  • do not attempt to counterbalance our mistakes by pointing out small errors by the customer;
  • do not use them to "score points" off the customer;
  • remember that any mistakes by the customer cannot be used to justify ours;
  • say sorry for errors on our part.

Finally, you should give the customer the appropriate escalation route should they remain unhappy with our response. That may be to a further independent review within HMRC or, if you are responding following a second review, the Adjudicator."

www.hmrc.gov.uk/manuals/chgmanual/CHG700.htm

2. Private Clients

2.1. HMRC Brief 38/10: Prior year eligibility to dividend tax credits

HMRC has re-issued guidance on the eligibility of Finnish, Greek and Irish dividends to dividend tax credits, as originally set out in its Brief 73/09, in respect of claims by individuals for dividend tax credits in respect of dividends received before 5 April 2008.

If you receive dividends from a foreign company, for the 2008-09 tax year and subsequent tax years UK law entitles you to a dividend tax credit equal to one ninth of the amount of the dividend in certain prescribed circumstances.

An argument had been put forward, based on judgements of the EU Court of Justice, for dividend tax credits for earlier years in respect of foreign dividend income in relation to the systems of dividend taxation in some other Member States under the EC Treaty because the UK law treated UK and foreign dividends differently.

HMRC does not accept this argument in general. However, based on legal advice, HMRC will accept claims for some earlier years in relation to dividends from Finland and Greece, and certain Irish dividends.

In these cases a form of Corporation Tax is paid in the other country and there is no withholding tax on outbound dividends. If such dividends were received, double taxation due to the underlying tax on profits payable by the company and then again from the UK Income Tax you paid on the dividend was potentially suffered. However, unlike UK dividends there was no dividend tax credit to give partial relief from the double taxation. Also, there was no foreign withholding tax which, after credit for foreign tax credit relief is given, has the effect of removing or significantly reducing any liability there might have been to UK Income Tax.

This guidance sets out the change of approach and its effects.

In short, if dividends from a company resident in Finland, Greece or Ireland were received prior to 6 April 2008, a claim may be made for a dividend tax credit equal to one ninth of the amount of the dividend for the 2007-08 and earlier tax years, back to 2003-04.

This does not apply, however, to dividends from Irish investment funds which are not chargeable to Irish tax on their relevant income or gains. These include Irish International Financial Services Centre funds.

www.hmrc.gov.uk/briefs/income-tax/brief3810.htm

2.2. Pension relief anti-forestalling and protected pension inputs

What happens if regular contributions are reduced for a period and then increased?

In 2009 HMRC issued a Q&A briefing that covered this point and whilst HMRC has subsequently relaxed some of the rules on transferring protected pension input between schemes, the principles of protected pension input were not changed.

To be classed as protected pension input the regular contributions must be paid at least quarterly, or more frequently, and it must continue to be paid on that frequency - you can't annualise the equivalent amount.

The Special Annual Allowance Charge will not be applied to continuing contributions reduced to less than your protected pension input. This is also the case should the contributions be subsequently increased back to the monthly / quarterly level as at 22 April 2009.

However there doesn't appear to be any scope for additional payments to catch up any shortfall for the period of lower contributions to be treated as protected inputs, as these would be exceeding the monthly/quarterly protected input rate. See the following extract from the HMRC manual.

"RPSM15103670 - Technical Pages: Special annual allowance: Protected inputs - existing: Other money purchase - not OPS, public service & GPP:

Existing rate of regular contributions decreasing

One of the conditions for continuing regular contributions to another money purchase arrangement to be protected pension input amounts is that the rate at which those contributions are paid does not increase on or after 22 April 2009, except in accordance with an agreement made before 22 April 2009 or in accordance with a written application made before noon on 22 April 2009 (see RPSM15103610 and RPSM15103710).

However, the rate could go down on or after 22 April 2009 and it would still remain a protected pension input amount. If the rate increased again it would remain a protected amount if the rate goes up to no more than the previous rate as that would mean there has been no increase in rate on or after 22 April 2009. However, if the rate went above the rate being paid immediately before the decrease not all of the pension input amount relating to that increased rate would be a protected pension input amount unless the increase was made in accordance with a 'pre-22 April 2009 agreement' mentioned above. If there was no such agreement, the difference between the increased rate and the rate that had been paid before the decrease in rate would not be a protected pension input amount.

Example

Contributions are being paid at a rate of £2,000 per month at 22 April 2009 and they continued at that rate until the September 2009 contribution, when the rate went down to £1,000 per month.

In January 2010 the rate goes back up but to £3,000 per month but not in accordance with a 'pre-22 April 2009 agreement'. The contributions continue to be paid at this rate for the rest of the tax year.

All of the contributions up to before the January 2010 contribution would be protected pension input amounts. However, of the £3,000 monthly contributions paid from January 2010 only amounts based on a monthly contribution rate of £2,000 would be the protected pension input amount. The remainder, £1,000 per month, would not be protected."

3. IHT & Trusts

3.1. Change of HMRC address to use for some trust tax returns and letters

HMRC has announced that from 1 September 2010 tax returns and letters for resident trusts that were previously sent to the Trusts Office in Truro should now be sent to the Trusts Office in Nottingham. The office in Truro will continue to deal with tax returns and letters for non-resident trusts.

Follow the link below to work out which office you should contact and address details.

www.hmrc.gov.uk/trusts/intro/contact.htm#2

4. PAYE

4.1. Obligations of a business purchaser and vendor for PAYE and NIC

Where there is a succession of a business involving employees who remain in employment in the same business, but the employer changes, then PAYE Regulation SI2003/2682 R102 sets out the respective PAYE obligations of the old employer (vendor) and new employer (purchaser). The corresponding provision for NIC obligations is included in the Social Security (Contributions) Regulations at SI2001/1004 Sch 4 para 28. However the liability for PAYE and NIC in respect of a particular employee receipt can, in certain cases, be split between the old and new employer.

The split treatment can occur with either a cash payment, or a notional payment. Notional payments for PAYE typically include readily convertible assets and special charges on employment related securities, although there are other various types (see ITEPA03 s710(2))

Examples of when the split obligations for PAYE and NIC can occur include the following circumstances:

5. Business tax

5.1. Entrepreneur's relief and material disposal of business assets

Whether an asset must be used in a business for a period of one year ending with the date of disposal in order to qualify for entrepreneur's relief is not specified in Part 5 Chapter 3 TCGA92 in all circumstances (section references below are all to TCGA92). For assets which were not previously business assets it may therefore be possible to introduce them to a qualifying business shortly before its disposal in order to access entrepreneur's relief.

A qualifying business disposal for entrepreneur's relief includes a material disposal of business assets (s169H(2)(a)). A material disposal of business assets includes the situation where an individual makes a disposal of business assets and the disposal is a material disposal.

A business asset includes the disposal of one or more assets in use, at the time the business is carried on, for the purposes of the business (s169I(2)(b)). This does not require the asset to have been used in the business for a particular time period.

A material disposal is one where:

  • The individual owned the business for one year ending on the date of disposal;
  • The individual owned the business for one year ending with the date of cessation, and the disposal is made within three years of the date of cessation;
  • The disposal of shares in a company owned to the extent of at least 5% where the individual is an employee or officer of the company and the company was a trading company or the holding company of a trading group either throughout the one year period ending with the date of disposal, or for a one year period prior to its ceasing to be a trading company and the date of cessation is within 3 years of the date of disposal.

However if the disposal is also one which is associated with a material disposal, then there is a requirement that the asset must have been in use in the business for a one year period ending with the date of disposal or cessation of business. To be a disposal associated with a material disposal, three conditions must all be met.

These are:

  • The disposal must be of the whole or part of the individual's interest in assets of a partnership, or of shares in a company,
  • The disposal is made as part of the withdrawal of participation of the individual in the partnership business or company business, and
  • The asset must have been in use throughout a one year period ending with the date of the material disposal or the cessation of the business of the partnership or company.

Thus in a case where it will not be possible to meet the one year condition for assets, there would only be an opportunity for bringing non-business assets within the scope of entrepreneur's relief if the asset is then used in the business carried on by an individual.

' In assessing whether entrepreneur's relief was available in such a situations one would clearly need to demonstrate that the asset was actually used for the purpose of the business.

5.2. Double Tax Treaty Passport scheme for interest on loans from overseas lenders

HMRC has now published the form (DTTP2 – available in online form or downloadable form) by which UK borrowers should notify HMRC of the status of the overseas lender, so that HMRC can issue a direction to the borrower to pay loan interest with income tax deducted at the appropriate Treaty rate.

www.hmrc.gov.uk/cnr/dtt-passport-scheme.htm

5.3. Loan Relationships – the lending of money and deductibility of a connected party debt waiver

The First Tier Tax Tribunal has dismissed the appeal of MJP Media Services Ltd against the HMRC disallowance of a £6.69m deduction for a partial loan waiver made on 26 March 2004 and included in the financial statements for the company's year ended 31 December 2004. The case is interesting as, in addition to examining whether a partial waiver of a connected party loan enabled the creditor company (lender) to obtain a deduction for the write off corresponding to the waiver, the Tribunal also examined whether there was a loan relationship in the first place.

The company claimed that the loan relationship legislation at the time (Finance Act 1996 Sch 9 paras 5 and 6 were subsequently changed by Finance Act 2004 Sch10 for accounting periods beginning on or after 1 January 2005) permitted a deduction for the connected company bad debt or waiver, as all amounts payable under debtor relationships were to be assessed as at the balance sheet date, (this would not have been possible if the loan relationship had been completely written off on 26 March 2004 so that the loan relationship had ended).

Between 2001 and 2004 a series of inter-company transactions took place between MJP and Aegis. By 1 January 2004, Aegis owed MJP £6,815,366. At some date between 1 January and 26 March 2004, Mr Ashley Milton on behalf of MJP, and Mr John Ross, on behalf of Aegis, signed a document stating that MJP had loaned Aegis the sum of £6,815,366. The document was not dated, but was stated to be "made effective from 1 January 2004". Interest was to be charged at base rate plus 1%.

On 26 March 2004, Mr Milton on behalf of MJP, and Mr Ross on behalf of Aegis, signed a document entitled "Deed of Waiver" ("the waiver"). The debt before the waiver was £6,893,977, being £6,815,366 plus accrued unpaid interest of £78,611. The amount waived was £6,704,000. This left an amount owing of £189,976.

The Tribunal rejected the company's interpretation of FA96 Sch9 as too narrow, concluding that it did prevent a deduction for a partial waiver of a connected party loan relationship.

When examining whether there was a loan relationship in the first place, the Tribunal examined the meaning of "lending of money" (formerly FA96 s81(1)(b), now CTA09 s302(1)(b)). The company contended that the loan arose under one of the following grounds and that in any of these cases there was a 'lending of money'.

(i) the debt arose from a series of cash payments (the cash argument);

(ii) If MJP settled a debt due by Aegis, such a transaction was still for the lending of money (the indirect argument);

(iii) The substitution of one party by another did not prevent the value being treated as a loan relationship (the substitution argument).

The company was unable to produce a full trail of bank statements demonstrating that the loan arose from cash payments and the Tribunal held that it was the responsibility of the company to prove the case under this heading and as it was not able to, it could not demonstrate a loan relationship had been created by cash payments.

MJP had settled third party debts on behalf of Aegis, but the Tribunal concluded that the phrase "for the lending of money" did not stretch to including payments to a third party which discharge the debts of another.

Carat International (MJP's holding company) had borrowed over £6m from MJP, while Aegis had borrowed the same amount from Carat International. A circular transaction occurred to repay the loans to and from Carat International so that the £6m+ amount was shown as due from Aegis to MJP without involving Carat International. While the movements in loan balances were reflected in the financial statements, there were no supporting book keeping entries or accounting documents to reflect this. The company contended that the MJP loan to Carat International had been assigned to Aegis. While agreeing that assignments are effective for transferring loan relationships, there was a requirement for MJP to demonstrate that its original loan to Carat International was in fact a loan relationship – and this evidence was not available.

The Tribunal concluded that the company had not given sufficient evidence to demonstrate that a loan relationship had existed.

This case demonstrates the need to properly document and to ideally reflect by actual cash payments the effect of loan relationship transactions.

If the transactions were not deemed to be loan relationships, but non-money debts under the old ICTA88 s88D there would only be a deduction for the write off if there was an impairment loss, or there was a release wholly and exclusively for the purpose of the trade as part of a statutory insolvency arrangement.

The current rules for non-lending relationships now include CTA09 part 6 which also includes release debits in respect of unpaid business debts, as well as the impairment of an unpaid business debt and the release of a debt for which a relevant deduction has been allowed. CTA09 part 6 applies CTA09 part 5 (including the connected party loan relationship rules) to relevant non-lending loan relationships, including impairment losses and release debits etc (see CTA09 s481).

The Tribunal judge was Sir Stephen Oliver while the member was Anne Redston. It is expected a decision will be made shortly as to whether the case will be appealed.

www.financeandtaxtribunals.gov.uk/judgmentfiles/j4952/TC00586.doc

5.4. Update on government/business working groups on foreign branches and CFCs

The Government published the following documents with regard to the ongoing consultation on the taxation of foreign branches and CFC reform:

Foreign branches

Note of working group meeting on taxation of foreign branches held on 3 August 2010 and terms of reference of the working group.

In summary there was no clear consensus on the options for exempting branch profits and the definition of exempt profits would depend on nature, location and organisation of overseas operations. There was some thought that risk in relation to zero or low tax jurisdictions could be covered by some sort of CFC equivalent provision. On the treatment of loss relief, there was a desire to preserve business's competitive position and avoid too much complexity in any change. With respect to capital allowance pools there may need to be an apportionment exercise based on book values on a just and reasonable basis.

www.hm-treasury.gov.uk/consult_taxation_of_foreign_branches.htm

CFCs

  • Note of CFC Liaison Committee meeting held on 8 July 2010.
  • Note of working group meeting on CFC interim improvements held on 30 July 2010.

The proposed interim CFC improvements were welcomed and it was noted that while the underlying purpose of exempting commercially justified activities that do not erode the UK tax base, is to minimise the impact of CFC rules on multinational's overseas activities, there was recognition that it was not practical to include monetary assets and intellectual property within this at this stage. The extension of a period of grace for post acquisition restructuring was welcomed and three years was put forward as a suggestion. Discussions on raising the deminimis profit level before CFC rules applied appear to have settled on a compromise level of £200,000. With regard to the exempt activities test there was a call for a less restrictive interpretation of 'managed in the territory of residence'. There was a call for the lower level of tax test to be based on the proposed UK corporation tax rate of 24%.

The next working group meetings have been scheduled for 9 September (foreign branches) and 16 September (CFCs).

www.hm-treasury.gov.uk/controlled_foreign_companies.htm

6. VAT

6.1. Form of gaming business and whether transactions qualify for VAT exemption

The VATA94 Sch 9 provides for exemption from VAT for the provision of facilities for the placing of bets or for the playing of a game of chance for a prize (item 1). Also exempted is the granting of a right to take part in a lottery (item 2). However excluded from item 1 is the provision of a gaming machine, where the amount a person gambles on such a machine is regarded as consideration subject to VAT under VATA94 s23.

A game of chance (within item 1) includes a game that involves both an element of chance and an element of skill, but does not include a sport. In the past pub and club gaming machines have often included fruit machines. Fruit machines are not regarded by HMRC as meeting the definition of a lottery and so takings from fruit machines are taxable. Prior to December 2005 there was a VAT distinction between fixed odds betting machines and gaming machines in that fixed odds betting machines linked to a random number generator on a central servicer did not qualify for VAT exemption, whereas individual machines offering the same game, but not linked to a central server did. This distinction was the subject of a VAT case involving Rank Group plc, and HMRC has agreed to claims for repayment of incorrectly paid output VAT on such gaming machines. HMRC is appealing the decisions in the Rank case, so the final position on reclaims in respect of periods prior to December 2005 is not yet certain.

Gaming machines are now specifically excluded from VAT exemption under item 1 of Group 4 of Sch 9. However there are no special exclusions from item 2 of Group 4 (VAT exemption for the grant of a right to take part in a lottery). Thus if a gaming machine provides the grant of a right to take part in a lottery, then as long as the lottery condition is met, the payment for that grant is VAT exempt.

A single operator pub gaining VAT exempt income from a betting machine which is not classified as a gaming machine, would be unlikely to have any disallowed input VAT on costs associated with such income, as any directly attributable or apportionable input VAT is likely to be extremely small and within deminimis limits (the lower of £7,500 and 50% of all input tax annually). The situation may be different for single pub operating businesses with many sites, however the disallowance will depend on specific circumstances and how a business is organised. For example tenanted pubs where the income from a lottery machine is the tenant's income, could mean that any potential disallowance of input VAT would fall within the deminimis limits.

A gaming machine is one which is designed or adapted for use by individuals to gamble (defined as betting, or a game of chance for a prize where the game involves an element of chance and an element of skill, but which is not a sport), whether or not it can also be used for another purpose (VATA94 s23(4)).

In a recent case Oasis Technologies (UK) Ltd succeeded in their contention that takings from electronic ticket vending machines met the condition for VAT exemption by being payment for the grant of a right to take part in a lottery, despite the fact that the machine itself was a gaming machine for VAT purposes. HMRC had contended that the machine income was income for the provision of facilities for the playing of a game of chance for a prize within item 1 of group 4 of Sch 9 which specifically excluded gaming machines. Oasis's business provided machines to pubs along with a roll of tickets with securely randomised numbers. Oasis charged the pub operator for the ticket rolls including VAT. The pub operator would pay Oasis for used tickets in arrears, and pay for any winning tickets out of takings. There was an electronic link from each machine to Oasis to enable them to keep track of the number of used tickets. The pub operator was committed to pay for the whole roll of tickets, whether all tickets were sold or not.

www.bailii.org/uk/cases/UKFTT/TC/2010/TC00581.html

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.