UK: Disguised Remuneration

Last Updated: 11 March 2011
Article by Amanda Solomon and Nigel Davies

An Update

On 21 February, HMRC released its long-anticipated Frequently Asked Questions (FAQs) – labeled "Version 1" - following the publication of its disguised remuneration proposals on 9 December 2010. The informal consultation process ended on 9 February and a number of areas where refinements to the proposed legislation have been identified. These FAQs, therefore, cover the main themes to emerge from consultation; unfortunately, there is no comment either in respect of how the proposed regime would operate following death (as charges continue to arise by reference to the employee), or in relation to how NIC will apply to earnings resulting from a relevant step being taken. It now looks highly unlikely that we will see a further draft of the proposed legislation before the publication of the 2011 Finance Bill on 31 March; publication of FAQs "Version 2" is also anticipated at or around that time. One thing for certain is that the legislation finally enacted will not be any less complex!

Planning without sight of updated legislation can be problematic and carries risk. It is not possible to interpret FAQs like legislation; the devil is always in the detail, and in any event anything put forward on 31 March may be subject to further amendment as it passes through the normal parliamentary process. However, the FAQs do give a reasonable insight into policy, and there may be enough here for decisions to be made in areas where there is no doubt about the applicability of the legislation when enacted – just as well, given that the proposals will come fully into effect in six weeks.

The focus of this update is not to comment on each of the 33 FAQs set out in "Version 1". Rather, it is intended to outline the possible actions worthy of consideration by stakeholders (employers, employees, trustees and beneficiaries) in the next six weeks. By way of background, we have previously produced a more general commentary on the topic, and this update develops our previous analysis in response to the FAQ's. The disguised remuneration proposals and the interaction with current rules are highly complex, and there are many potential pitfalls. As always, professional advice should be sought before any actions are undertaken.

EBTs and EFRBS – Funding pre 6 April 2011

HMRC repeated its view of arrangements involving third parties under current law at FAQ29:

"... some of the types of transaction ... are not accepted by HMRC as effective in avoiding tax under existing law. Such transactions include the earmarking of funds held in a discretionary trust before 6 April 2011 as well as other transactions where a realistic view of the facts is that earnings have been paid. HMRC will continue to challenge such transactions under the existing law, including in litigation where necessary."

Our comments in this update are made against this backdrop. HMRC has twice litigated on the "earmarking as earnings" point in the last 9 years (see Dextra at the Special Commissioners, and Sempra Metals), without success. The EBT and EFRBS arrangements we have been involved with are "general" in nature and have not been implemented to otherwise "disguise" remuneration (e.g. loan schemes). Notwithstanding HMRCs stated position, most employers with existing arrangements have decided to proceed with funding EBTs and EFRBS as part of the normal remuneration cycle. The proposed legislation applies only to funds or assets "earmarked" with effect from 6 April 2011, so prior "earmarking" (for example, by way of appointment to a sub-trust or an allocation) should result in deferral of tax and NIC as well as most of the other advantages EBTs and EFRBS always afforded.

The main concern amongst EBT and EFRBS stakeholders has been that, under the proposed legislation as drafted, investments made and realised by the trustee would give rise to an employment tax charge and a NIC liability. These fears have been allayed by FAQ33 and FAQ12 (respectively) and there should be no tax consequences for an employee unless and until a benefit is provided.

As a result of the policy framework put forward in these FAQs, there may in fact be an incentive to make further funding arrangements before 6 April 2011, particularly to an EFRBS (see below). We would be happy to advise on this approach, including on implementation in situations where conditions on the provision of remuneration will not have been satisfied prior to 6 April 2011.

EBTs – Strategies for all Beneficiaries

FAQ31 reminds us that the proposed legislation applies to all relevant steps taken after 5 April 2011 (or after 8 December 2010 if the step is one that falls within anti-forestalling provisions) regardless of when earmarking by way of sub-fund appointment or otherwise took place. Any benefits provided whilst the proposed legislation applies will be subject to employment tax and NIC. In terms of strategies for mitigating exposure to the proposals, the position where the "primary" beneficiary continued to be in employment with the settlor employer on 6 April 2010 (a "Current Employee") is more limited in terms of what may be done. The main issues are:

  • The inability to access funds by way of loan in almost all situations (the exemption for loans on commercial terms only applies to loans from commercial lenders).
  • The potential adverse tax treatment of benefits.

Any benefits provided to a Current Employee before 6 April 2011 will probably be subject to employment tax and NIC under the existing rules if the disguised remuneration anti-forestalling regime (relating to payments of sums of money, including loans) apply. Consequently, the approach must be to acknowledge the application of the proposals but to manage the outcomes. A number of ideas are set out below; the appropriateness of each will depend upon individual circumstances.

1) Cash flow solutions: actions involving assets remaining in the EBT.

Employment tax and NIC will arise on the provision of benefits from assets remaining in the EBT but only at a future date.

  • Use the EBT as a long-term tax efficient investment vehicle. Subject to HMRCs comments regarding appointment or allocation in favour of beneficiaries, EBTs continues to offer long-term deferral and tax-free investment roll-up, and the inheritance tax advantages are unaffected.
  • "Grandfathered" loans. Loans taken out before 9 December 2010 are outside the scope of the proposals, including the anti-forestalling rules. Actions should be considered to ensure that the loan could remain outstanding for the longest possible period. We have considered, for example, amending the definition of "the borrower" to include other family members, as this should not entail "a payment". However, any action in this regard needs to be considered in light of the comment at FAQ29: "Loans which were paid and assets made available before the legislation applies are outside the scope of Part 7A. But, for example, if an asset provided before 6 April 2011 is subsequently reallocated to somebody else, this will trigger a new charge".
  • Loan of assets before 6 April. There has been a reasonable amount of comment on the possibility of a trustee lending assets to a beneficiary, partly because the anti-forestalling provisions only apply to payments of sums of money. The FAQ29 comment (above) appears to confirm this. However, it is important for two reasons that advice be sought before proceeding. Firstly, a tax charge equal to 20% of the value of the asset will apply annually if the employment is held during the tax year under the existing Benefits Code; secondly, there appears to be an inherent pre-commencement provision in proposed sections 554D(1)(b) and (2) ITEPA that gives rise to a tax charge at the end of a "relevant period" (the second anniversary of the cessation of employment) falling after 5 April. In addition, there may be an issue under general principles if the trustee purchases assets now (see the bullet on "Transfers of assets to EFRBS before 6 April 2011").
  • Purchase of assets from the trustee for deferred consideration before 6 April. The idea is that the beneficiary can hold or sell the assets as he or she sees fit, but does not need to pay market value for them until some future date. There may be tax charges under existing rules in respect of the value of the benefit of the consideration deferred to the extent that interest on the consideration deferred is not paid. There may also be an issue under general principles if the assets need to be purchased by the trustee (see the bullet on "Transfers of assets to EFRBS before 6 April 2011").
  • Sale of assets to the trustee. This allows the beneficiary to exchange cash from the trustee for assets that the trustee can hold as an investment. FAQ11 refers to this point specifically. Some assets are more likely to be suitable than others for this purpose, and we would be happy to advise on this issue.

2) Improving the tax treatment of benefits: assets leaving the EBT.

  • Defer provision of benefits until the employee's effective tax rate is lower. Benefits could be provided when the employee ceases working, becomes non-UK resident, following death, etc.
  • Transfers of assets to EFRBS before 6 April 2011. Depending upon the precise terms of the EBT, it may be possible to make a transfer to a trust-based EFRBS (see below for the possible advantages of EFRBS over EBTs, although generally EFRBS are less flexible). Any transfer would need to be in specie (this could in theory include loans, which would be assets in the hands of a trustee, if the terms of the EFRBS permits it). One concern with this planning is that any purchase of assets by a trustee in contemplation of transfer may be subject to HMRC challenge using anti-avoidance case-law; that an action has been taken solely for the purpose of defeating the intended purpose of the proposed legislation (most recently, in Deutsche Bank Group Services (UK) Ltd). It is worth exploring whether the terms of the EBT are such that it can provide retirement benefits, removing the need for a transfer. If there is no employer-sponsored EFRBS, it may be possible to make the transfer to an appropriate single member pension scheme.
  • Distributions to non-UK resident employee. As noted in our previous guidance, there may still be scope for planning in this area. Under current rules, if an employee becomes non-UK resident following a relocation abroad such that the employment with the settlor employer continues (or comes to an end whilst the employee is non-UK resident), and the trustee exercises its discretion to make a distribution, then unless the earnings can be attributed to specific periods when the employee was UK resident the earnings will be "for" the UK tax year in which the trustee exercised its discretion (or the tax year the employment ceased, if earlier); see Bray v Best. The proposed legislation appeared not to change anything, a point that FAQ27 seems to confirm.

EBTs – Additional Strategies for Beneficiaries who are Ex-Employees

In addition to the foregoing, the following actions may be relevant for those who weren't Current Employees on 6 April 2010. To the extent that assets can leave an EBT before the proposed legislation comes into effect, there will be no employment tax charges or NIC liability under these rules.

  • Distributions of assets to family members before 6 April 2011. It may be possible for the trustee to exercise its discretion to distribute trust assets for the benefit of family members other than the ex-employee. In this case, the UK tax charge should be limited to the beneficiary income tax charge in respect of accumulated income under the transfer of asset abroad rules. However, HMRC is likely to consider whether the ex-employee enjoys any benefit in relation to this transfer, especially if the value transferred is large; if this is in fact the case, an employment tax charge and a NIC liability will arise under the current rules. It may be that a transfer to a family trust that excludes the ex-employee beneficiary from benefit would help rebut any such challenge. If the asset needs to be purchased by the trustee in order to effect the transfer, there will be further issues to consider (see the bullet on "Transfers of assets to EFRBS before 6 April 2011" above).
  • Benefits by way of the on-going provision of services. The obvious situation is the on-going provision of education through the payment of school fees. To effect this, the trustee would need to transfer assets to the school before 6 April 2011 in respect of a named child. The transfer is not a payment of a sum of money and, although the provision of education could be considered to be an asset, its use is on-going and so outside the scope of the proposed legislation per FAQ29. However, the comments made earlier in relation to the inherent pre-commencement provision regarding the use of an asset (see the bullet on "Loans of assets made before 6 April 2011") apply equally here and there may also be an issue under general principles if assets needs to be purchased by the trustee (see the bullet on "Transfers of assets to EFRBS before 6 April 2011").

EFRBS – Strategies for all Beneficiaries

It would be fair to say that EFRBS have come out of the consultation relatively well. Prior to the publication of the FAQs, an asset transfer from an EBT to EFRBS was a technique being considered primarily with a view to allowing those who will live outside the UK in the future to invoke the "pension or other similar remuneration" provisions of a double taxation agreement to limit the scope of UK tax under the disguised remuneration proposals. However, the FAQs go further and will offer a measure of relief to all, although the position will continue to be more attractive to those who are or become non-UK resident. There follows a summary of the tax issues; there will be wider, commercial issues to consider for those considering a transfer to an EFRBS from an EBT, most notably that an EFRBS will be more restrictive in terms of the timing and form of benefit.

  • No UK tax should fall due in respect of contributions pre 6 April 2011 until benefits are provided.
  • FAQ20 provides that there will be an amendment to the proposed legislation so that the provisions of Part 9 ITEPA will continue to take priority. Pensions are not "relevant benefits" and instead a "foreign" pension is taxed under Ch 3 Part 9 ITEPA, which provides that:
    • A foreign pension paid to a UK resident taxable on an arising basis receives a 10% abatement.
    • A foreign pension will be taxable on a remittance basis for those who claim it.
  • Non-UK residents are not taxable on foreign pensions under current rules. FAQ20 does not specifically say that the amendment to the proposed legislation will exclude foreign pensions paid to non-UK residents (Part 9 ITEPA does not cover this area, which is why such pensions are outside the scope of UK tax currently), but it would be incongruous if it did not.
  • In relation to lump-sum payments, the proposed legislation will be amended (see FAQ19) to retain the reliefs currently available (for example, the relief for overseas service in ESC A10); note that the remittance basis does not apply to lump-sum payments. Whilst an improvement, the position remains less attractive than under the current rules for non-UK resident recipients of lump-sum payments, where HMRC practice has been not to pursue liability.
  • FAQ21 confirms that a double taxation agreement will take precedence over the proposals. The issue will then be whether HMRC accept that a benefit is "pension or other similar remuneration".
  • There is no guidance in relation to how NIC is to operate. However, it would be reasonable to assume that, to the extent the foreign pension income rules in Part 9 ITEPA take precedence over the disguised remuneration proposals, the existing NIC exemptions can be maintained.

What all this means is that:

  • For a UK resident taxable on an arising basis, it should be possible to draw a pension taxable at an effective rate equal to a maximum of 90% of the top tax rate prevailing when paid (i.e., a maximum effective 45% at current rates), and without a liability for NIC.
  • A UK resident taxpayer capable of claiming the remittance basis could limit his or her tax cost of a pension to the amount of the Remittance Basis Charge (currently, £30,000) if able to fund lifestyle or otherwise plan without remitting the foreign pension.
  • A non-UK resident should be able to receive pension benefits in a form that does not suffer UK tax, if not under UK domestic rules then under a double taxation agreement. In addition, it may be possible to use a double taxation agreement to reduce or exempt a level of lump sum from UK tax.

Amounts contributed to EFRBS (and indeed to EBTs where there is a transfer of assets to an EFRBS before 6 April 2011) often include an amount on account of employer's NIC (on the basis that the liability for it will be borne out of trust assets); if it is possible to take benefits that do not attract NIC, this has the effect of reducing the effective rate even further.

Pre 6 April 2006 Contributions to "Corresponding" Pensions ("IPP")

Since the publication of the disguised remuneration proposals, there has been a slow realisation that the legislation would apply to IPPs in exactly the same way as any other form of remuneration delivered via a trust, notwithstanding that tax relief was afforded in respect of contributions and a specific NIC exemption afforded both on contribution to and payments from IPPs. With one exception, nothing in the FAQs indicates that an IPP will be treated any differently from an EFRBS; the good news is that the changes to the proposals in relation to EFRBS apply equally to IPPs. What this means for IPP members is that, relative to the current position, the changes to the UK tax and NIC treatment of benefits are as follows:

  • Lump-sums will be taxable under the new proposals (albeit with some relief in relation to overseas service, including service where the member was not ordinarily resident in the UK); FAQ19 refers. In theory, there is no change in treatment; in practice HMRC did not previously pursue liability where the member is non-UK resident. Nevertheless, there may be the possibility of claiming relief from UK tax under a double taxation agreement (see FAQ21).
  • If paid to a UK resident, a foreign pension will be taxable on a remittance basis or qualify for a10% abatement if the remittance basis is not available, as is presently the case. FAQ20 does not say that non-UK residents are not taxable in the UK on a foreign pension (i.e., the same as the current position), although this may be the implication. If the legislation enacted as part of the 2011 Finance Act does in fact bring foreign pensions payable to non-UK residents within the disguised remuneration rules, relief may nevertheless be available under a double taxation agreement.
  • The issue with claiming relief under a double taxation agreement will be whether HMRC will accept, notwithstanding that it comes from a retirement scheme, that a benefit is "a pension" or "remuneration similar to a pension", for example in relation to lump-sum commutations.
  • As there is no guidance on the operation of NIC, it will be reasonable to assume that the old NIC reliefs will continue to apply where there is no charge under the disguised remuneration proposals. If there is a UK tax charge but relief under a double taxation agreement, there could still be a NIC liability (possibly subject to relief under a social security agreement).
  • There is a fundamental practical problem with all this. The disguised remuneration proposals impose collection of tax on the employer through PAYE in the first instance. Most if not all "corresponding" pensions, including IPPs established specifically for non-UK domiciled employees based in the UK, have no provision in them for deducting PAYE (unless perhaps a legal obligation imposed on the plan). Consequently, the employer may need to put arrangements in place to collect amounts on account of PAYE directly from the employee.

Most IPPs contain a provision that will allow a transfer to a single member retirement plan following cessation of employment. Increasingly, the question arises as to whether, in light of the disguised remuneration proposals, a transfer should be effected now. As the disguised remuneration proposals do apply to IPPs, a transfer may well need to take place in specie, before 6 April 2011, and is subject to all of the risks outlined above (see commentary above under the heading "Transfer of assets to an EFRBS before 6 April 2011"); there is a reference at FAQ18 (this is the one difference between IPPs and EFRBS) that says transfers will be exempted from a charge under the proposals, but only where the transfer is "between corresponding overseas schemes". The term is not defined, but is unlikely by definition to include retirement schemes that are fundamentally different in terms of form of benefit, retirement age, etc., to the IPP. As a result, the question to be answered is whether it is worth effecting a transfer, at all or at least before greater clarity is forthcoming. Of course, where the transfer has already been made, the terms of the receiving plan have no bearing on the application of the disguised remuneration proposals, but funds held within that plan are still subject to the disguised remuneration provisions.

Deferred remuneration/Share Arrangements involving Third Parties

A substantial proportion of representations made to HMRC following the publication of the disguised remuneration proposals related to commercial arrangements involving third parties, whether through necessity (for example, an employee share ownership trust in connection with an employee share scheme) or as a matter of common practice (deferred remuneration to be paid out of funds held in an EBT subject to vesting, perhaps as a result of a regulatory requirement). In response, HMRC has said:

"The policy intention is that the new rules should apply to arrangements involving a third party to reward employees and directors which seek to avoid, defer or reduce income tax and NICs (FAQ1) ... our policy objective is to tackle arrangements established for the purposes of tax avoidance, and it will be necessary to achieve this in a proportionate and well targeted way (FAQ23) ... the intention is to amend [the proposed legislation] so that ... arrangements which have [certain] characteristics do not give rise to a charge on earmarking."

To summarise the circumstances in which exemption will be available, the award must be subject to vesting within at least 5 years, be subject to forfeiture if vesting conditions are not met, be subject to employment tax and NIC if reward is provided before the vesting date, and the deferral or avoidance of tax must not be the main purpose, or one of the main purposes, of entering into the arrangement; in any case, a tax charge will arise on the fifth anniversary of the award being made unless an event has happened such that there is no possibility of receiving the reward. This will afford a measure of relief for share-based arrangements that should cover most situations (it appears that the short-term loan exemption being considered – see FAQ13 – could also apply in the context of funding option exercise).

HMRC has also recognised the scope of the proposals goes far further than intended in relation to situations where the third party is a group company. There is an indication in FAQ3 that the draft legislation will be amended to afford a measure of relief for groups.

The key point to note in this regard is that great care must be taken when implementing deferral arrangements involving third parties, especially if before the 2011 Finance Act is passed.

Deferral Arrangements not involving Third Parties

It is apparent from the FAQs that the policy intention is to focus on arrangements involving third parties. However, the wide definition of "trustee" in proposed section 554A(8) would have meant that the employer could be treated as a third party. HMRC intends (see FAQ6) to narrow the definition to remove this unintended consequence.

Without a further draft of the proposed legislation, it is impossible to know how far any revised definition will go to limit its application in the context of arrangements solely between employer and employee. As a result, implementing such a deferral plan is not free from risk in the short term. There is some hope that the amendment will be helpful, based on FAQ16 and FAQ17 – whereby a wholly unfunded retirement promise will fall outside the proposals and that, on its own, neither a balance sheet entry nor security in the form of a letter of credit secured by a floating charge over the employer's assets will "probably" be an earmarking – although as always the devil will be in the detail. One thing that is apparent is that different sections of the FAQs have been written by different people!

We have developed and successfully implemented a number of deferral arrangements that do not involve a third party. Subject to the caveats above, we would be happy to discuss our ideas with you.

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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