Tax Update: A Round-Up of Recent Tax Issues - Monday, 7 March 2011

1. PRIVATE CLIENTS

1.1. Office of Tax Simplification: Review of tax reliefs

The Office of Tax Simplification (OTS) has produced its detailed report looking at 155 reliefs out of the 1,042 originally identified. The report identifies a number of long-term projects which are ripe for detailed review:

• The possible merger of income tax and NIC;
• Align the treatment of employee benefits, simplifying many minor benefits with a de minimis limit;
• Complete review of IHT and the taxation of trusts rather than tinkering with reliefs;
• Consider a review of CGT and in particular the growing difference between the regimes for individuals and companies.

The OTS listed two reliefs which are out of date, 45 reliefs which it considers have no ongoing policy rationale and should be abolished and 17 reliefs which could be simplified.

The list of 45 reliefs which OTS considers could be abolished include provision of meals for cycle to work days, late night taxis, 15p per day tax-free luncheon vouchers, miners free coal, business premises renovation allowance, flat conversion allowances and blind person's allowance.

The list of 17 reliefs which OTS have recommended for simplification include EIS, VCT, entrepreneur's relief, enhanced capital allowances for energy and water efficient technologies, purchase of own shares, demergers, principal private residence, chattels relief, REITs and lease premium relief.

The OTS recommended that 54 reliefs should be retained including employer supported childcare, short-life assets, small profits rate for corporation tax, post cessation trade relief, gifts of investments to charity, 5% rule for insurance policies and top-slicing relief, film tax relief, farmers averaging and woodlands relief.

It is expected that the Chancellor will respond to the OTS report in the Budget on 23 March. It is likely that he will embark on a period of consultation on any reliefs that he wishes to abolish or simplify with a view to legislating in the 2012 Finance Bill.

The OTS has carried out its initial review in a methodical fashion and in a short time-frame. They make the point that they are "well aware of the argument that simplification should start with a tax in its entirety, rather than looking at individual reliefs".

Clearly major pruning of the existing tax code would be necessary to achieve a real simplification of the system and it remains to be seen whether the Chancellor has the appetite to tackle all or indeed any of the long-term projects mentioned above.

www.hm-treasury.gov.uk/d/ots_review_tax_reliefs_final_report.pdf

2. PAYE AND EMPLOYEE BENEFITS

2.1. Whether contributions to FURBs are earnings for NI purposes

The Upper Tribunal was the Tribunal for the first hearing of Forde & McHugh, a lead case behind which a number of others stood. It considered whether employer contributions into a funded unapproved retirement benefits scheme ("FURBS") were earnings for Class 1 NI purposes. The contributions, made during 2002/03, consisted of Treasury Stock with a nominal value of £162,000 and £1,000 by way of a cash contribution. The employee was entitled to benefits under the scheme's Trust Deed and Rules on Retirement from Service, namely Death Benefits, Benefits on Change in the Nature of Service, and Benefits on Leaving Service Before Retirement Age.

NI is due where earnings are paid to or for the benefit of an earner (SSCBA92 s6(1)) and 'earnings' includes any remuneration or profit derived from an employment. Payments in kind are excluded by Regulation from the calculation of earnings unless they confer a beneficial interest in certain assets. Regulations also provide a means of calculation of individuals' earnings where a payment is made with a view to provision of benefits under a retirement benefit scheme for more than one member.

This has been a contentious area for some years. Prior to the changes to the pensions legislation in April 2006, employers used FURBS both as an NI avoidance device and to top up the pension entitlement of executives for whom contributions to an approved pension scheme were capped. Specific tax legislation meant that the contributions were liable to tax when they were made but there was no equivalent charging provision under NI law. It had been announced in July 1997 that clauses would be included in that year's Social Security Bill to bring contributions to FURBS into the charge for NI from 6 April 1999, but later that year the Contributions Agency announced that there was no need to make a change in the law as the charge on contributions already existed. A press release was issued in November 1997 in which the Agency announced that they expected employers to comply from 6 April 1998.

The critical question according to the Tribunal was whether payments of gilts into the retirement benefit scheme amounted to "earnings paid" for the employee's benefit. The Tribunal was influenced by the decisions in two conflicting cases:

• Tullett & Tokyo, where the High Court decided in 2000 that employer contributions into a fund over which the employee held contingent rights did not constitute earnings; and
• Telent, where the Special Commissioners decided in 2008 that the circumstances under which cash payments had been made into a FURBS for one employee, according to the contract of employment, were not on all fours with Tullett & Tokyo and that those contributions did constitute earnings.

The Tribunal effectively followed the decision in Tullett & Tokyo. It was unconvinced of the wide interpretation placed by HMRC on the definition of earnings for NI purposes. It determined that neither the transfer of the gilts nor the cash payment to the trustees fell within "earnings paid to or for the benefit of an earner".

The Tribunal was also not persuaded by the argument that it was possible to treat as earnings the grant of a contingent interest in a fund which could be valued by reference to the payments into the fund. It also found that the employee did not have a beneficial interest in the assets held in the trust fund, but merely a right to undetermined benefits on the occurrence of uncertain events.

www.tribunals.gov.uk/financeandtax/Documents/decisions/FordeandMcHugh_v_HMRC.pdf

2.2. Advisory Fuel Rate

HMRC increased the Company Car Advisory Fuel Rates for petrol and diesel cars from 1 March 2011.

The new rates from 1 March 2011 are:

Petrol

1,400 cc or less – 14p
1,401 cc to 2,000 cc – 16p
Over 2,000 cc – 23p

Diesel

1,400 cc or less – 13p
1,401 cc to 2,000 cc – 13p
Over 2,000 cc – 16p

www.hmrc.gov.uk/cars/advisory_fuel_current.htm

3. BUSINESS TAX

3.1. Draft amendments to Offshore Fund rules

HMRC has published, for industry comment, a full draft of proposed amendments to The Offshore Funds (Tax) Regulations 2009 (SI 2009/3001 as amended). The intention is to make these regulations by late April 2011 to come into force by the end of May.

As well as the rules for funds operating equalisation which were published on 20 December 2010, this draft incorporates a number of other proposed changes, which are briefly described below:

Reporting funds

• Adjustments to the calculation of reported income per unit where funds do not operate equalisation (these adjustments are intended to eliminate the possibility of a 'last man standing' problem). This part of the regulations includes transitional provisions which will apply the new rules to reports made after they come into force, together with an election not to apply the new rules in respect of any reporting period already ended where the report remains to be made.
• An amendment for offshore funds similar to UK qualified investor schemes considered to be 'equivalent to UK authorised investment funds' (so that those funds can, if they otherwise qualify, access the trading and investment 'white list', with the effect that the rules relating to transactions considered not to be trading can be applied in relation to the computation of reportable income).
• Alterations to the Genuine Diversity of Ownership rule to allow it to apply at sub-fund level (and not just share class) and to permit the investors in a feeder fund to be considered when assessing a Master fund.
• New rules for calculating the reportable income of a transparent reporting fund.
• A provision to give more certainty to the computation of reportable income in an index tracking fund.
• Time limits for application and withdrawal extended.
• Clarification of scope of reporting requirements (to 'relevant' investors).

All Offshore Funds

• Where non-reporting funds are invested almost entirely in unlisted trading companies and gains arise on the disposal of such non-reporting funds then there is an exception to the charge to tax on an offshore income gain.
• Fiscally transparent funds will be outside the scope of legislation which treats holdings in certain funds as loan relationships (for corporate investors). This will have the effect that corporate holders will 'look through' all transparent offshore funds for tax purposes including those that are mainly invested in interest bearing assets. The loan relationships rules will therefore apply directly to the underlying assets where relevant.

The amendments described in the announcement of 20 December 2010 are also incorporated as some are minor drafting amendments, corrections and consequential points.

www.hmrc.gov.uk/drafts/draft-equalisation.htm
www.hmrc.gov.uk/si/draft-si-offshore-funds-tax.pdf

3.2. Spotlight on EBT arrangements

HMRC has added a new spotlight on schemes seeking to use the repayment of loan conditions to avoid an income tax charge on loan arrangement from EBTs where the repayment is made before 6 April 2012. It comments:

www.hmrc.gov.uk/avoidance/spotlights.htm

3.3. HMRC guidance on SDLT and FA2003 s75A

HMRC has published guidance on the SDLT anti-avoidance provision at FA2003 s75A. It includes examples where HMRC do and do not consider s75A would be relevant.

www.hmrc.gov.uk/so/advice75a.htm

In addition HMRC have made minor changes to their SDLT manual (7 Feb 2011) and added a new chapter on partnerships (though further additions to the partnership guidance are expected in due course).

www.hmrc.gov.uk/manuals/sdltmanual/updates/sdltmupdate070211.htm
www.hmrc.gov.uk/manuals/sdltmanual/updates/sdltmupdate030311.htm

3.4. HMRC Brief 10/11

HMRC Brief 10/11 and NI status of actors' contracts in line with the Entertainer's Regulations. HMRC has issued their interpretation of the decision in the First Tier Tax Tribunal decision of 23 November 2010 in ITV Services Ltd (TC/2009/10166).

www.bailii.org/uk/cases/UKFTT/TC/2010/TC00836.html

The case considered entertainers engaged under one of six forms of contract:

1. Bespoke agreements;
2. The ITV/Equity Form of Engagement;
3. The PACT/Equity Form of Agreement;
4. "All Rights" agreements;
5. "Memo" fees;
6. "Walk-ons".

The Tribunal concluded:

HMRC's comments:

www.bailii.org/uk/cases/UKFTT/TC/2010/TC00836.html

3.5. Corporation Tax treatment of goodwill transferred from a partnership to a company

The general rule is that acquired goodwill is eligible for the Corporation Tax intangible asset regime where it is acquired on or after 1 April 2002 from a person who at the time of acquisition is not a related party in relation to the company (CTA09 s882(1)(b), formerly FA02 Sch29 para 118(1)).

Goodwill can qualify if acquired from a person who was a related party at the time of acquisition, where it was a qualifying asset immediately before, or where the related party acquired it on or after 1 April 2002 from a third person, or where it was acquired by the related party from someone who created it on or after 1 April 2002.

In the case of HSP Financial Planning Ltd a partnership of three independent financial advisers who had carried on business for a number of years before 30 January 2004 transferred the goodwill of their business with a value of approximately £1.25m to a company on 30 January 2004 in exchange for an equal share of 90% of the company's share capital. They main contention was that the shares were given to them as a consequence of the transfer of goodwill, and that therefore they were not related parties at the time the company acquired the goodwill.

HMRC contended that being a related party "at the time" of acquisition was directed to situations where assets in existence before 1 April 2002 remained held "within the same economic family" after the acquisition. They contended that "at the time of the acquisition" included a person becoming a related party at such time. This was consistent with the purpose of the statutes as well as with normal language. There was no difference in principle between a person who became a related person on acquisition and one who was related before. In both cases the transferor started and ended with the same economic relationship to the asset, and the asset moved seamlessly from the transferor to a company where the transferor had the same interest.

The Tribunal agreed fully with HMRC's contention.

It should also be noted that goodwill acquired on or after 1 April 2002 that is acquired from a related party where the business in question was carried on prior to 1 April 2002 by the company or related party – is treated as pre April 2002 goodwill (and therefore non-qualifying).

A related party includes one who is a participator (or an associate of a participator) in a close company, or (for transactions occurring on or after 16 March 2005), a person who is a participator in, or is associated with, a company that controls the relevant (close) company (now CTA09 s835(5)).

www.bailii.org/uk/cases/UKFTT/TC/2011/TC00982.html

3.6. Entrepreneurs' relief for non-active members of an LLP.

We have recently been looking at the CGT entrepreneurs' relief (ER) position for a client who is a member of an LLP (and has been for more than one year), but who has effectively retired as a working partner.

The individual still holds units in the LLP, will receive a profit share and he is still registered as a member with Companies House, although he no longer has any internal responsibility within the firm. He now wishes to sell his LLP units, and the question is whether ER is available.

Our conclusion is that entitlement to relief continues as long as the individual remains a member of the LLP. There is no requirement for a member of an LLP to physically work in the business and we consider the holding of units in the LLP plus membership of the LLP is sufficient under the current rules to retain entitlement to the relief.

We would draw a parallel with a "sleeping partner" who provides the funding for a partnership that operates a corner shop which is managed by a second active partner. There is no requirement in the ER legislation for the partners to work in the business and so both partners would qualify for ER provided the various conditions were met.

The legislation covering ER is found at Part V Chapter 3 of the Taxation of Chargeable Gains Act 1992. Section 169H provides that a lower rate of capital gains tax applies in respect of qualifying business disposals. The lower rate is 10% which applies to lifetime gains up to a value of £5m.

In order to qualify for the relief the disposal needs to be a qualifying business disposal which is defined as a 'material disposal of business assets'. Section 169I provides that there is a material disposal of business assets where an individual makes a disposal of business assets and the disposal is a material disposal.

Section 169I(2) provides that disposal of the whole or part of a business is a disposal of business assets for the purpose of the legislation. A disposal of business assets is a material disposal if the business is owned by the individual throughout the period of 1 year ending with the date of disposal (s169I(3) ).

Section 169I(8)(b) provides that the disposal by an individual of the whole or part of the individual's interest in the assets of a partnership is to be treated as a disposal by the individual of the whole or part of the business carried on by the partnership, and subsection c provides that, at any time when a business is carried on by a partnership, the business is to be treated as owned by each individual who is at that time a member of the partnership.

Therefore, an individual member is making a qualifying business disposal when he/she disposes of units and provided the individual has been a member of the LLP for a period of 12 months ending with the disposal it is a material disposal and therefore should satisfy the requirements of the legislation.

3.7. Plumbers Tax Safe Plan (and non plumbers!)

HMRC has announced a new disclosure facility aimed primarily at plumbers, gas fitters, heating engineers and members of associated trades who have underpaid tax. If they make a full disclosure, most face a low penalty rate of 10 per cent, with a maximum of 20 per cent and they have until August 31 to make their disclosure and arrange for payment to be made.

After that date, using information pulled together from various sources, HMRC will carry out targeted investigations aimed at those who have failed to come forward and make a full declaration. Substantial penalties or even criminal prosecution could follow.

The plumbers' tax safe plan (PTSP) is the first initiative in a campaign focused on tradespeople. The tax plan operates in two stages:

• From 1 March to 31 May, plumbers can register with HMRC to "notify" that they plan to make a voluntary tax disclosure.
• By 31 August, those who have registered must have told HMRC about tax due and have made arrangements to pay any tax interest and penalties due. This is called "making a disclosure".
• Plumbers can let HMRC know that they intend to make a tax disclosure:
• • Online by completing a notification form at www.hmrc.gov.uk/plumberstaxsafeplan or
  • By phoning HMRC on 0845 600 4507

Although aimed at plumbers the press release indicates that the disclosure facility can in fact also be used by taxpayers who are not plumbers:

HMRC has issued a guidance pack.

www.hmrc.gov.uk/trades-disclosure/guidance-pack.pdf

4. VAT

4.1. VAT and Capital Goods Scheme

New regulations have been issued that come into force on 2 March 2011, amending Part 15 (adjustments to the deduction of input tax on capital items) of the Value Added Tax Regulations 1995 (S.I. 1995/2518).

Regulations 3 to 5 amend regulations 112 (interpretation of Part XV), 114 (period of adjustment) and 115 (method of adjustment) to substitute revised references to paragraph 37 of Schedule 10 to the Value Added Tax Act 1994 ("paragraph 37") following its amendment by the Value Added Tax (Buildings and Land) Order 2011 (S.I. 2011/86) and to adjust for the fact that the revised calculation in paragraph 37 is calculated by reference to months rather than years to ensure that the provisions continue to have their intended effect.

www.legislation.gov.uk/uksi/2011/254/made.

4.2. VAT Cases

Reasonableness of an error penalty

Russell Francis Interiors recovered input VAT on the acquisition of a commercial warehouse mistakenly in full on the date of exchange of contracts rather than on the basis of the date of payment of the deposit (creating an actual tax point) and then the date of completion (6 weeks later), the basic tax point for the acquisition. HMRC assessed a 15% penalty (a 50% reduction on the full amount due to prompt disclosure by the taxpayer) which the taxpayer argued was too harsh. The Tribunal concluded the error was a careless technical error by the taxpayer, which was a one-off situation and reduced the penalty to 7.5%.

www.bailii.org/uk/cases/UKFTT/TC/2011/TC00983.html

Whether a sales catalogue supplied for a contingent charge is in effect supplied free of charge

The principal issue in the case of Next Group plc was whether a contingent charge made by a retailer to its customers for a sales catalogue, a charge which, if made at all, is then reflected in a credit against another payment due from the customer, is properly to be regarded as a charge for the supply of the catalogue. The alternative is that the catalogue is in effect supplied free of charge, the arrangements failing either because of their true contractual (or, if it is different, their true VAT) analysis, or because they are abusive.

The sale material included the following text:

The brochure was sent, as a rule, only to those customers who placed an order by the given deadline. In practice some customers, including those who had spent significant sums in the recent past, received the brochure even if they did not place an order, but this factor does not seem to be of any enduring significance. Those customers, too, were liable to pay for the brochure and eligible for the delivery credit if they placed an order. Those who did not order anything were not pursued for payment of the charge for the catalogue (for reasons of economic cost of pursuing the debt).

The Tribunal concluded that there was no supply of a catalogue for consideration (Next Group contended that the element of consideration attributable to the brochure would be zero rated so that no output VAT would be due on that element). The Tribunal agreed that Next introduced the charge and the cancelling credit for sound marketing reasons, designed to encourage customers to place more orders, and that the scheme was presented to customers in a manner which was thought to achieve that objective, but presentation cannot affect the underlying reality. In their judgment the supposed liability for payment was illusory. It could not even be said that the Brochure was supplied on credit. By the time a charge was posted to his or her account, the Brochure was the customer's to dispose of at will and no longer Next's to sell.

The Tribunal determined however that that the tax advantage, should it be achieved, was no more than a subsidiary purpose of the scheme, and that therefore there was no abuse of VAT in the arrangements. There was also a dispute about whether assessments were made in time according to the rules then applicable (within the later of two years of the end of the VAT accounting period and one year from the date evidence of the facts leading to the underassessment came to HMRC's knowledge). The Tribunal accepted that some of the assessments were made in time and some were not.

www.bailii.org/uk/cases/UKFTT/TC/2011/TC00983.html

VAT liability of dismantling US Navy ships

The Upper Tribunal has referred questions to the ECJ arising from a November 2009 First Tier Tribunal case concerning the VAT treatment of dismantling US Navy ships. HMRC had contended the services were standard rated, while the taxpayer argued the services were exempt (the taxpayer's decision was upheld by the First Tier Tribunal).

The question proposed for referral is:

www.tribunals.gov.uk/financeandtax/Documents/decisions/HMRC_v_AbleLtd.pdf

5. TAX PUBLICATIONS

Tax factsheet: Employee share reward reporting

This factsheet highlights some areas for concern regarding the obligation of employers and other "responsible persons" to report certain share related remuneration events to HMRC by 7 July after the end of the tax year. It covers: share awards; share purchases and certain sales; grants of share options; and certain other share related transactions and events, relating to employees and directors

Year-end tax planning calendar for employers

With the end of the tax year approaching fast, it is vital that you are ready. Being prepared will save you time and money when the form filling starts.

Briefing note: Environmentally beneficial plant & machinery allowances

This briefing note provides information on how a business can claim energy efficient plant or machinery allowances. These offer the opportunity to claim first year allowances of up to 100% of the expenditure incurred, or the opportunity to surrender losses generated by the allowances in return for a tax repayment. The value of 100% first year allowances (FYA) is significantly greater now that general plant or machinery allowances have decreased from 25% writing down allowance (WDA) to 20% WDA and many categories of general plant or machinery have been reclassified as 'integral features' attracting a 10% WDA

Briefing note: Managing tax payment obligations - Corporation tax

This briefing note considers the Corporation Tax payment date rules for companies, and discusses options for managing the cash flow impact of those payments. It does not consider the issues relevant when a company goes into administration or insolvency

Briefing note: Negligible Value Claims (Individuals)

This Briefing Note summarises some of the points to consider when making negligible value claims for capital gains tax (CGT) and income tax loss relief. It considers loss relief on shares in particular and briefly discusses goodwill, loans and land.

Briefing note - Comparing Company/Limited Liability Partnership/Partnership for trading activities undertaken by groups of individuals

This note compares the legal, practical and tax environments for a company, a LLP and a partnership

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.