UK: Weekly Tax Update – Monday, 9th May 2011

Last Updated: 10 May 2011
Article by Richard Mannion


1.1. Compliance checks and penalties

HMRC has published links to a video and various documents for learning about compliance checks and penalties, particularly on penalties for inaccuracies in documents and returns.

1.2. Agent Update

HMRC has issued the latest Agents Update.

1.3. HMRC: Complaint Handling Guidance

HMRC's Complaint Handling Guidance (CHG) has been completely restructured and rewritten. With regard to delayed tax refunds paragraph CHG810 now reads as follows:

"If there is a complaint about a delayed repayment, liaise with the relevant business area to see whether the repayment claim can be dealt with in the same timescale as the complaint. The business area may conclude that a provisional repayment may be appropriate in some limited cases, but remember that our aim is to settle the complaint fully within 15 working days."

1.4. HMRC Complaints and Remedy Manual

HMRC has published its financial redress guidance to staff. The introduction sets out the purpose of the guidance as follows:

"This guidance (referred to as CRG) is aimed at all HMRC staff involved in considering complaints under our departmental complaints procedures. Those staff will usually, but not always, be located in Business Unit Complaint Teams.

CRG should be read in conjunction with its sister volume, CHG Complaints Handling Guidance which sets out our general policy on and approach to complaints. CRG takes you through the process of considering whether we have made a mistake or given poor service and, where so, what the appropriate remedy might be. Where CRG talks of financial redress, it covers only what we might pay under our ex gratia discretionary complaints scheme. Where reference is made to statutory compensation, such as repayment supplement or statutory interest, there are links to the appropriate guidance.

CRG explains in some detail our policy on financial redress and gives details of the rules under which we make financial redress payments. It also gives practical advice on how to decide whether those rules have been satisfied in a particular case. However, because the work of HMRC is so wide and diverse, it is not possible to cater for every situation that might arise. You should always look to apply the broad principles of our policy to any given situation, and use your judgment and discretion to arrive at a reasonable decision.

CRG aims to be fully compliant with the Ombudsman's Principles for Remedy. Please take the time to follow the link and familiarise yourself with the helpful guidance."


2.1. HMRC Employers Bulletin

HMRC has published Employers Bulletin 38. It has items covering 2011 Budget announcements, Employer Annual Returns, electronic P60s, paper P14 forms, withdrawal of National Insurance number cards, Limited Company subcontractors in the Construction Industry, Regional Employer National Insurance contributions (NICs) holiday for new businesses, penalties for not filing starter and leaver information online, National Minimum Wage consultation, PAYE information now online, important news for PAYE Desktop Viewer (PDV) users, National Insurance and Statutory Payment Toolkit, Paying HMRC, reminders, reporting expenses and benefits, paying Class 1A National Insurance Contributions, Business Education and Support Teams, State Pension age for women is changing, online VAT returns, Employers' Liability Insurance changes, relevant motoring expenditure, Student Loan deductions, changes to Employer Helpbooks, Tax Credit renewal campaign, Employer diary and Helpline & Orderline numbers.

2.2. HMRC Employee Shares Schemes manual

HMRC has updated its employee share schemes manual with specimen agreements for SIP (share incentive plan) 'free share' and 'partnership share' agreements.


3.1. Status of financial statement to accompany a corporation tax return

Codu Computer Limited filed its first tax returns with accompanying financial statements supporting the computations, where those financial statements were unsigned. The tax returns were filed within the required time limit, but were rejected by HMRC as being incomplete, because the accompanying financial statements were unsigned. The tax returns were eventually accepted just over two months late, but a late filing penalty was imposed.

The company appealed against the late filing penalty. The notice to deliver the tax return was not available to the Tribunal. However they noted the legislative requirements (FA98 Sch18 para 3(1)) say nothing about the required documents having to be signed.

As it was HMRC who had the initial obligation to demonstrate the return was filed late, and there was nothing to say that submitting the return with unsigned accounts was unacceptable, and bearing in mind the small amount at issue in the appeal (a total of £200), the Tribunal determined the case in favour of the taxpayer, striking out the penalties.

The key point to note here is that unless stated in the notice to deliver the tax return, there is nothing to say that accompanying financial statements need to be signed.

3.2. OECD Model Tax Convention and definition of Beneficial Owner

The concept of "beneficial owner" found in Articles 10, 11 and 12 of the OECD Model Tax Convention has given rise to different interpretations by courts and tax administrations. Given the risks of double taxation and non-taxation arising from these different interpretations, the OECD Committee on Fiscal Affairs, through its Working Party 1 on Tax Conventions and Related Questions, has worked on proposals aimed at clarifying the interpretation that should be given to that concept in the context of the OECD Model Tax Convention. These proposals are open for consultation until 15 July.

3.3. Penalties under the Money Laundering Regulations

The First Tier Tax Tribunal has reduced a penalty issued under the Money Laundering Regulations (MLR) on the grounds that it was not appropriate meaning effective, proportionate and dissuasive and was not proportionate to the breach, in accordance with Regulation 42(1).

David Lirens took over a game exchange and mail delivery/accommodation address service in October 2008. The average customer paid £12 per month and there were roughly 40 customers at any one time. Prior to taking over the business he was receiving tax credits and continued to do so while running the business. The business is classed as a Trust and Company Service Provider for the purposes of the MLR. However being relatively unsophisticated in business he was unaware of the MLR.

As soon as he became aware of the need to register he returned the necessary form MLR 100 on 22 August 2010, together with a part payment of current year registration fees and a request for time to pay the balance. HMRC raised a penalty of £303.33, which (although not explained to the taxpayer) was calculated as a £100 late registration penalty and £203.33 in relation to back fees. The Tribunal reduced the penalty to £50.

3.4. Validity of a notice to enquire into an SDLT return

The First Tier Tribunal has considered the validity of a notice to enquire into an SDLT return. HMRC issued notices to enquire into self certificates made on form SDLT 60 – a return relating to transactions with effective dates prior to 12 March 2008 that could be filed in a case where the taxpayer wanted to self certify that no SDLT was due. The notices to enquire were sent within the nine month deadline from the date of submission of form SDLT1 as required.

However an alternative to submitting an SDLT 60 was to file a land transaction return (SDLT1). The notices related to four transactions entered into between 12 December 2007 and 26 March 2008 (three of the transactions occurred before 12 March 2008). HMRC attempted to correct the notices (which had been issued to the taxpayer) by a letter issued to the agent (but not to the taxpayer).

FA03 s83(2) sets out that a notice is not ineffective for want of form or by reason of mistake, defect or omission, if it is substantially in conformity with the requirements of FA03 relating to SDLT and its intended effect is reasonably ascertainable by the person to whom it is delivered.

The Tribunal decided it was abundantly clear from the surrounding circumstances and the documents sent with the notices that HMRC intended to open an enquiry into the land transaction returns and that they intended to give notice to the Appellants of that intention under para 12, Sch 10 FA03, and not notice relating to self certificates under para 7 Sch 11 FA03. Therefore they concluded it was substantially in conformity with the requirements of SDLT and this was reasonably ascertainable by the taxpayer. Indeed there is no specific provision for what the notice must contain, so that it appeared to the Tribunal the notice was substantially in conformity with what it should contain. In addition they determined that whether something was reasonably ascertainable was an objective test, which in this case was met.

They also concluded that they could only consider documents issued directly to the taxpayer (and not the letter issued to the agent). In the event that the notices were considered to have been defective, however, the Tribunal concluded that FA03 s83(2) would not have applied to make them validly issued.

3.5. Greenbank Holidays Ltd and whether goodwill qualified for the intangible asset regime

The Upper Tribunal has confirmed the decision of the First Tier Tribunal that a claim by Greenbank Holidays Ltd, that goodwill acquired in September 2003 from a related party qualified for the intangible asset regime, should be dismissed.

The First Tier Tribunal had determined that despite the fact that the related party had not previously recognised goodwill in its accounts, it should be regarded as being created or acquired before 1 April 2002 and therefore ineligible for the intangible asset regime (see Tax Update item 3.2 of 6 April 2010).

3.6. Amendments to Offshore Fund rules

Further to the draft amending regulations issued on 28 February (see Tax Update of 7 March 2011), HMRC has announced the implementing Statutory Instrument (SI2011/1211) will have effect for distributions or disposals made on and after 27 May 2011.

The proposed revisions include:

With respect to the calculation of reported income:

  • the rule relating to equalisation operated by some reporting funds for new and departing investors is being revised to ensure that it will work for funds that do not make distributions as well as those that do;
  • provisions are being made in relation to reporting funds that do not operate equalisation;
  • provision is being made for a reporting fund to change its arrangements with regard to equalisation;
  • simplified rules are being provided for computing reportable income in the case of a reporting fund that is fiscally transparent; and
  • provision is being made to simplify compliance with the rules for a reporting fund which tracks a market index. With respect to whether a reporting fund should treat certain categories of transaction as non-trading transactions for the purpose of calculating reported income:
  • provision is being made to broaden the category of offshore funds that are treated as equivalent to an authorised investment fund in the UK (to include offshore funds similar to qualified investor schemes in the UK); and
  • provision is being made for an offshore 'master' fund to take into account the intended investors in a feeder fund in determining whether the offshore fund can meet the genuine diversity of ownership condition.

In the case of interests in certain non-reporting funds, a new exception is being introduced to the treatment of disposal gains as income for tax purposes. This relates to disposals of interests in a fund investing almost wholly in unlisted trading companies.

Further minor technical changes are being made as set out in the detailed explanatory notes to the regulations.

4. VAT

4.1. Licensing of storage containers – whether VAT exempt or standard rated

The case of David Finnamore t/a Hanbridge Storage Services considered whether the provision of storage facilities for property belonging to third parties was a VAT exempt supply of land. The storage facilities consisted of metal containers (ship transport containers) located in open land and surrounded by a security fence with appropriate access for those entitled to use the containers. The rental terms included a minimum period of two weeks, with many rentals being in excess of this period. They also included the following term: "During the course of this agreement with us you will have use of (a) the numbered storage container occupying the area of land coloured in red on the attached plan and (b) the land coloured red on the attached plan". By way of example the rates applicable to an 80 ft.² unit were a weekly cost of £28.58 when the unit was located on the appellant's land, while a similar size unit located on the customer's own land was about one quarter of that sum (the latter arrangement being a very small part of the business).

The issues to be considered were whether the overall nature of the transaction entered into with a customer was the granting of a licence to occupy land, or simply providing storage facilities, or whether the overall transaction involves each element so that the predominant element must be ascertained before the overall nature of the transaction can be properly characterised for VAT.

HMRCs view was that the supply was one of storage facilities, not immovable property. The taxpayer was not especially concerned about whether his supply did or did not attract value added tax; his concern was that there should be a level playing field for those involved in the storage facility industry so that either all suppliers levied VAT or none levied VAT.

The Tribunal concluded that Hanbrige Storage Services were, as a matter of law, granting a contractual licence to a customer to occupy a defined parcel of land. They also considered the supply was taking place on the taxpayer's land, and that by far the greater proportion of the fee related to the facility of occupying the land. The Tribunal concluded there was a single supply and that it was one of land, and the supply came within the VAT exempt provisions of VATA94 Sch9 group 1, item 1.

4.2. VAT – lease of land and leaseback of land with plant or machinery attracting capital allowances – whether zero rated and whether single or multiple supplies

Queen Mary University of London (QMC) entered into an arrangement with a subsidiary of Lloyds Bank plc, Lloyds Property Investment Company No 5 Ltd (LPIC) whereby it sought to obtain cheaper financing for the cost of £16m of plant and machinery installed in a new medical teaching and research building concerning cell and molecular biology, by renting that plant or machinery from LPIC. LPIC would obtain the benefit of capital allowances on the plant or machinery, which would be unavailable to the college, and the benefit of this would be passed back to QMC by cheaper financing costs. In order for LPIC to obtain capital allowances on plant or machinery fixed to land it needed to have an interest in that land. An arrangement was therefore entered into to give LPIC that interest.

QMC granted a lease of the land to LPIC. A payment of £735,253 made by LPIC to QMC on the grant of the lease was treated in the Financial Agreement as if it were a payment for Plant. LPIC then granted an underlease back to QMC with QMC's rental payments determined by reference to the cost of the plant (apart from a fixed £10,000 pa). The option to tax was made in respect of the land interests, and it was contended by LPIC and QMC that the rental payments were not a supply of land, but a supply of plant & machinery that included 24% zero rated items such as medical equipment for use by a charitable institution providing medical care (VATA94 Sch8 group 15) and certain adaptations to a building to accommodate handicapped people (VATA94 Sch8 group 12). HMRC contended that either the supply was one of land and was fully taxable (the option to tax having been exercised), or there was a single supply of standard rated plant and machinery.

Typically in these sorts of lease financing arrangement the financier (bank) usually protects its position with regard to tax on the arrangement with a particular clause in the contract. If VAT was chargeable in full on the payments made to LPIC it would be likely that QMC would have had to increase their payment. As QMC is likely to have been fully or partially VAT exempt, the extra VAT would be unlikely to be recoverable in full and so would be an extra cost.

The Tribunal considered the arrangements as follows:

  • There was a single supply (rather than several distinct supplies), as the elements of supply received by QMC were so closely linked that they formed a single economic supply which it would be artificial to split.
  • The Tribunal's view was that the nature of the supply was one of plant or machinery, not land. Merely because English land law would treat a supply of land and fixtures as a supply of land, the same concept is not to be read into the exemption. If a supply of land with fixtures can properly be described as a supply of permanently installed plant and machinery, it falls outside the exemption. As a matter of the mechanics of the agreements, the plant and machinery is sold to LPIC and then let, as part of the land to QMC. The vast bulk of the consideration payable by QMC is directly linked only to the cost of the plant and machinery. The economic effect of the arrangements as a whole was the leasing or financing of the plant and machinery to QMC, that plant or machinery being permanently fixed.
  • After considering the Talacre Caravans case (Talacre Beach Caravan Sales Ltd v Commissioners [2006] STC 1671), the taxability of the supply was regarded as fully standard rated supply. The Tribunal determined there was no reason, as there may be in the case of derogations, to construe the broad principle of taxability narrowly; rather the converse: only if the supply fell wholly and squarely within the exempting (zero-rating) provisions would they apply. To treat the exempting (zero-rating) provisions as overriding the single supply case law of Card Protection Plan (Card Protection Plan Ltd v C&E 2001 STC 336 ) would rob the principles in that case of much of their force. The principle in Talacre did not in the view of the Tribunal permit a single supply which is otherwise fully taxable to be treated as in part a zerorated supply.

4.3. VAT and supplies of staff – Reed Employment Ltd

This case considered the VAT treatment of introductory fees for an employment agency. The VAT treatment in this area has changed over recent years and different types of employment businesses may have been treated differently for VAT purposes. From 1997 until 1 April 2009 some businesses were able to use a staff hire concession so that they only ended up paying VAT on the commission element of their fee, not the full cost including the cost of the temporary worker. Since then VAT has been chargeable on the full amount. However the decision in the Reed Employment case raises questions about this treatment. The position regarding reclaims and the amount recoverable in respect of earlier periods has been complicated by the way HMRC introduced the three year cap on reclaims in 1996, and it was still possible until 2003 to make claims in excess of the three year limit subject to certain conditions.

Apart from its healthcare division (which included Reed Nurse), in respect of which Reed had at all times accounted for output tax on its commission alone, for the remainder of its temp business Reed accounted for output tax on the whole of its receipts from its clients.

The questions being considered in this case were the following:

  1. Whether the Appellant's supplies, at all material times, were limited to the introduction of workers to its clients in return for an introduction fee (as the Appellant contended) or whether (as contended by HMRC) the Appellant was making, as principal, a supply of temporary staff, the consideration for which was the whole amount charged to the client.
  2. As regards the 2003 Claim for the repayment of VAT overpaid on its introduction of workers to clients in the irrecoverable sector: (a) whether the Tribunal had jurisdiction to determine if the request for repayment (described as the 2009 Demand) in relation to the introduction of workers to the recoverable sector in the period 1973-1990, was an amendment to the 2003 Claim (as the Appellant contended) or whether that question fell outside the Tribunal's jurisdiction (as HMRC contended); and (b) if the Tribunal were to decide that it had jurisdiction to determine the question set out at (a) above, then whether the 2009 Demand should proceed as an amendment to the 2003 Claim (as the Appellant contended), or whether it should proceed as a new claim (as HMRC contended).
  3. If the Appellant succeeded on issue (1) above, then with regard to the 2009 Claim, whether HMRC could rely upon the defence of unjust enrichment in relation to the 2009 Claim. If HMRC succeeded on issue (2) (a) or (b) above, this issue also arose in relation to the 2009 Demand.

In relation to the first issue, the Tribunal took the view that:

"...having regard to the contracts between Reed and the client and the temp worker, and the facts as a whole, viewed objectively, we find that the economic reality is that the supplies by Reed to its clients in respect of the temp workers are supplies of introductory services and other ancillary services, including evaluation of the temp worker's capabilities, the taking of references and a payments service with respect to the payments of the pay rates to the temp worker."

The services were not supplies of staff. In the Tribunal's view, in ascertaining the nature of a supply it is relevant to have regard to what it is that the supplier is capable, as a matter of contract, of providing, and on that basis to consider what in economic reality has been supplied. In the case of Reed, at no time did Reed exercise control over its temp workers, such that control could be ceded by Reed to its clients. The obligations owed by a temp worker to Reed did not amount to an ability of Reed to exercise control over the temp worker, and in any event those obligations commenced only after the temp worker had accepted the assignment, and accordingly had come under the control of the client. The making of a supply of staff must in the Tribunal's view, at the least, connote a passing of control of staff from the supplier to the person receiving the supply. There is no such passing of control in this case. Absent that factor, Reed was capable only of making a more limited supply, which could be characterised only as a supply of introductory services, along with the ancillary services to which we have referred.

In summary the Tribunal concluded as follows:

  1. Issue (1). The supplies subject to these appeals made by Reed to its clients in respect of temp workers in the relevant periods were supplies of introductory and ancillary services, and the consideration for those supplies was the gross commission element of the charge rate paid by the client to Reed, that is, the charge rate less the pay rate paid by Reed to the temp worker and associated national insurance contributions.
  2. Issue (2). The 2009 Demand was a separate claim made on 27 March 2009, and was not an amendment to the 2003 Claim.
  3. Issue (3). HMRC could rely on the defence of unjust enrichment in relation to the 2009 Claim and the 2009 Demand.

4.4. Court of Appeal and Compound Interest on VAT reclaims


Five companies (which include John Wilkins (Motor Engineers) Ltd) which traded as car dealers had accounted for output tax on sales of demonstrator cars on which input tax had been blocked and which should have been treated as exempt (applying the ECJ decision in EC Commission v Italian Republic [ECJ decision (C-45/95)] and on payments from manufacturers which should have been treated as discounts on the sale price of the cars. HMRC made the repayments, together with simple interest under s78 VATA 1994.

The companies appealed to the Upper Tribunal, contending that the effect of the House of Lords decision in CIR v Sempra Metals Ltd was that they were entitled to compound interest. The tribunal dismissed the appeals, holding that they were out of time, and that there were insufficient grounds for extending the statutory time limit.

HMRC contended that the proceedings should be stayed pending the ECJ decision in Littlewoods Retail Ltd v HMRC. The questions referred to the ECJ by Littlewoods are:

"Question 1:

Where a taxable person has overpaid VAT which was collected by the Member State contrary to the requirements of EU VAT legislation, does the remedy provided by a Member State accord with EU law if that remedy provides only for (a) reimbursement of the principal sums overpaid, and (b) simple interest on those sums in accordance with national legislation, such as section 78 of the Value Added Tax Act 1994?

Question 2:

If not, does EU law require that the remedy provided by a Member State should provide for (a) reimbursement of the principal sums overpaid, and (b) payment of compound interest as the measure of the use value of the sums overpaid in the hands of the Member State and/or the loss of the use value of the money in the hands of the taxpayer?

Question 3:

If the answer to both questions 1 and 2 is in the negative, what must the remedy that EU law requires the Member State to provide include, in addition to reimbursement of the principal sums overpaid, in respect of the use value of the overpayment and/or interest?

Question 4:

If the answer to question 1 is in the negative, does the EU law principle of effectiveness require a Member State to disapply national law restrictions (such as sections 78 and 80 of the Value Added Tax Act 1994) on any domestic claims or remedies that would otherwise be available to the taxable person to vindicate the EU law right established in the Court of Justice's answer to the first 3 questions, or can the principle of effectiveness be satisfied if the national court disapplies such restrictions only in respect of one of these domestic claims or remedies? What other principles should guide the national court in giving effect to this EU law right so as to accord with the EU law principle of effectiveness?"

The taxpayers opposed HMRC's application to stay proceedings, and countered with their own applications for a reference to the CJEU for a preliminary ruling pursuant to Article 267 of the EU Treaty. One of those questions was:

"Does the reasoning of the CJEU in Case C-317/94 Elida Gibbs v CCE and Case C-45/95 EC Commission v. Italian Republic which applies for the purposes of the Sixth VAT Directive apply equally for the purposes of the First and Second Directives, so that EU law requires VAT levied contrary to that reasoning in respect of the period between 1st April 1973 and 1st January 1978 to be repaid?"

Court of Appeal:

The Court of Appeal has granted HMRC's application to stay and in the light of the taxpayers' question noted above, considered that there would seem to be force (without in any sense deciding the point) that, in the light of the analysis of Henderson J in F J Chalke Ltd v HMRC [2009] EWHC 952 (Ch), [2009] STC 2027 and the reference directed by the tribunal in Grattan plc v HMRC [2011] UK FTT 31 TC, it would be appropriate for there to be a reference to the CJEU of the issues raised in that question. They therefore directed the taxpayers to return to the Upper Tribunal on this point. [2011] EWCA Civ 429


Taxable remittance outline

A brief guide as to what constitutes a remittances or benefit received in the UK

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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