UK: Weekly Tax Update - Monday 11 July 2011

Last Updated: 13 July 2011
Article by Richard Mannion

1. GENERAL NEWS

1.1. How non-business taxpayers get advice on HMRC's interpretation of recent legislation

HMRC has embarked on an informal consultation regarding how non-business taxpayers or those with a query about non-business activities get advice on HMRC's interpretation of recent tax legislation. The proposed new CAP 1 would replace the existing Code of Practice 10. Business 'customers' do currently have access to a non-statutory clearance process for matters where there is a demonstrable material uncertainty about the tax consequences of transactions affecting their business.

The good news is that it would cover cases where there is uncertainty about HMRC's interpretation of "recent tax legislation" as it applies to a specific transaction(s) or issue(s) and for this purpose "recent" would mean legislation passed in the last four years.

However this is a rather strange consultation paper:

  • No explanation of why a change is needed or what it is intended.
  • No comparison between the old COP 10 offering and the proposed CAP 1 offering.
  • No information about how many taxpayers have used the old system and how well it worked, perceived difficulties etc.

COP 10 referred to matters where the taxpayer was uncertain about HMRC interpretation of the law (including its application to a proposed transaction) in the following categories:

  • the interpretation of legislation passed in the last four Finance Acts;
  • the application of double taxation agreements;
  • whether someone is employed or self employed;
  • Statements of Practice and extra-statutory concessions;
  • other areas concerning matters of major public interest in an industry or in the financial sector.

CAP 1 refers specifically to cases where HMRC's interpretation is uncertain as regards recently passed legislation as it applies to a specific issue.

It is not clear what the intention is regarding the application of double taxation agreements, whether someone is employed or self employed, Statements of Practice and extra-statutory concessions and other areas concerning matters of major public interest in an industry or in the financial sector.

COP 10 includes a section on post-transaction valuation checks and one assumes that that system will continue although the draft CAP 1 is silent on the matter.

COP 10 linked through to a separate guidance note "When you can rely on information or advice provided by HMRC" (www.hmrc.gov.uk/pdfs/info-hmrc.htm) and it is not clear whether that separate guidance note is going to be scrapped.

http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true&_pageLabel=pageLibrary_ConsultationDocuments&propertyType=document&columns=1&id=HMCE_PROD1_031407

1.2. National Audit Office report on the 2010-11 accounts of HMRC.

The Comptroller and Auditor General has issued his report on the 2010-11 accounts of HM Revenue & Customs. The accompanying press release says:

"In 2010-11 the Department received total revenues of £468.9 billion, £33.1 billion (7.6 per cent) greater than in 2009-10.

The increase in tax revenue from the prior year reflects the improving economic situation, as well as the impact of rate and duty rate changes including: £5.1 billion (2 per cent) rise in Income Tax and National Insurance contributions; £13.2 billion (17 per cent) increase in VAT; and £8.0 billion (21 per cent) increase in Corporation Tax.

At 31 March 2011, the Department was investigating over 2,700 issues with the largest companies, with potential tax at stake of £25.5 billion. The NAO has reviewed whether the Department's processes for settling tax disputes with large companies were adequate to establish a sound position on the tax due. This did not involve coming to an independent judgement on the tax liability in individual cases. The NAO found that the Department had established sound governance arrangements for settling tax disputes and, in a substantial majority of cases, had complied with these. In three of the largest settlements examined, one or both of the Commissioners signing off the settlement had also participated in the negotiations. This reduced the demonstrable assurance to taxpayers and Parliament that the settlements reached were appropriate.

The Department made significant progress during 2010-11 in stabilising the administration of PAYE. By the end of March it had successfully reconciled the vast majority of records available for automated reconciliation for 2008-09 and 2009-10 and processed the associated overpayments or underpayments of tax. It also ensured that over 99 per cent of annual codes for the 2011-12 tax year for issue to taxpayers were dispatched on time.

The Department will now have to deliver on its plans to manually clear the records relating to 2008-09 and 2009-10 which cannot be processed automatically. The Department has committed itself to clearing all cases relating to its legacy PAYE system by the end of 2012 and plans to stabilise its PAYE service by 2013. While the Department has lost the opportunity to recover underpayments for the 2006-07 tax year, it plans to complete the reconciliation and process the repayment of tax overpaid in the 2003-04 to 2007-08 tax years by the end of 2012.

In 2010-11, the Department spent around £28.1 billion on tax credits. The latest estimate by the Department is that in 2009-10 it overpaid between £1.75 billion and £2.14 billion to claimants arising from error and fraud, and underpaid between £0.25 billion and £0.55 billion to claimants as a result of error. The overall level of error and fraud has decreased from between 8.3 and 9.6 per cent in 2008-09 to between 6.6 and 8.1 per cent in 2009-10 but, as this expenditure has not been for the purposes intended by Parliament, the Comptroller and Auditor General has qualified his opinion on the regularity of tax credits expenditure.

The Department's plan to develop a more active approach for managing tax credits debt, including the use of a campaigns-based approach, has so far met with limited success. At the end of March 2011, the overall level of tax credits debt stood at £4.7 billion, compared with its target of £4.3 billion."

www.nao.org.uk/publications/1012/hmrc_accounts_2010-11.aspx

2. PRIVATE CLIENTS

2.1. Business Angel Seed Investment Scheme (BASIS)

The Government is proposing to develop a new stand-alone scheme targeted more narrowly at the seed level and business angels, the Business Angel Seed Investment Scheme (BASIS).

  • It is recognised that the new scheme could bring additional complexity to the tax system.
  • BASIS would be based on the current EIS, but targeted more directly at Business Angels to incentivise their investing at the seed-stage of a company's development, with the possibility of more flexibility around the use of debt instruments.
  • EIS and VCT qualification is based on company size, determined by the number of employees and gross assets (proxies for what is considered to be a small enterprise). A new scheme might enable the Government to more accurately target both investor and company, by identifying characteristics of an angel investor and seed-stage company.
  • Access to the scheme would be restricted to narrower categories of investor and company than the current EIS, whilst allowing scope for investment via a wider range of financial instruments including some investment through debt instruments.

Definition of seed stage companies

  • Relief would only be available for investment in seed stage businesses. These could, for example, be companies in a pre-trading stage which intended using the funds raised to develop business concepts, perhaps involving the production of a business plan or the production of prototypes which require additional research, but prior to bringing a product to market and commencing large scale commercial manufacturing. The definition might explicitly refer to "pre-trading" or it might refer to other factors.
  • The scheme would not be available to companies which are already trading but which intend raising money to develop a new product. Such companies would be able to use the existing EIS, subject to meeting the qualifying conditions.
  • The definition of seed-stage company could include some of the following features: a company that has not yet begun to receive income from its trade or intended trade; a company that has no unconditional contracts or agreements in place to receive such income; a company that has gross assets of less than a specified amount; a company that is involved in developing a business plan, a prototype requiring further research, or development prior to bringing the product or service to market; a company that is not yet engaged in large scale commercial manufacturing.
  • There will be a requirement that the monies raised under the scheme must all be used for the types of business activity envisaged as being carried on by a company in its "seed" stage.
  • Subject to a seed scheme obtaining State aid approval, it may be possible to offer relief for both equity and some debt instruments, (which EIS does not).
  • There would be a separate annual limit for the amount that an investor could invest under a new seed scheme. This would be lower than the current EIS limit of £500,000. There would also be a limit on the amount that a company could raise annually under a new seed scheme.
  • To comply with the EU guidelines, any individual seed investor in a qualifying company would have to have at least 70% of their investment in the form of equity or quasi-equity. The Commission guidelines define the different types of instruments as follows:
    • equity means ownership interest in a company, represented by the shares issued to investors;
    • quasi-equity investment instruments means instruments whose return for the holder (investor/lender) is predominantly based on the profits or losses of the underlying target company and are unsecured in the event of default. This definition is based on a substance over form approach;
    • debt investment instruments means loans or other funding instruments which provide the holder with a predominant component of fixed minimum remuneration and are at least partly secured. This definition is based on a substance over form approach.

Definition of Business Angels

  • The EU Commission defines Business Angels as wealthy private individuals who invest directly in young new and growing unquoted businesses and provide them with advice, usually in return for an equity stake in the business, but may also provide other long-term finance.
  • The definition of a business angel meeting the conditions for BASIS could include some of the following:
    • has previously invested in four or more seed stage companies (to demonstrate experience);
    • is or will be a director of the company, or provide other specified support or advice (for example, has expertise in a particular field, and will as a condition of the investment provide support to the company).
  • Government wishes to avoid the situation where investors take up nominal positions on boards without making a real contribution, and it also wishes to avoid discouraging new investors who might bring valuable experience without having a record of previous EIS investment.
  • Government might require that the investor must be participating in the governance of the company.
  • Business Angels can come in the form of individuals acting alone, or quite commonly in syndicates where a group of angels make joint investments. The eligibility criteria should allow investment from both individual and syndicates of angels.

Transition into EIS

  • It is envisaged that companies would be able to transition from a seed-stage scheme into the existing EIS. To avoid breaking the EU rules on cumulation of aid, total investment under a new seed scheme and under EIS and VCT in a single year would need to be within the overriding annual investment limit, which currently limits investment received by a company to £2 million per annum (assuming EU state aid approval for the current proposals, this limit will increase to £10m per annum from April 2012).
  • The money raised under a seed scheme would have to be employed on the seed-stage activities for which the monies were raised before funding could be raised under either EIS or VCT.

Comments

Small start-up companies are considered to be important to economic growth in UK, but they struggle to obtain finance. It is well documented that bank finance has dried up for this category of business and there is a lack of interest from venture capital funds because of the ratio of up-front costs against expected returns - hence this interest in matching 'business angels' with start-up businesses.

However in order to restrict the relief to a select band of experienced investors and to a select group of startups, the danger is that the legislation will be so complicated as to put off prospective investors. We have had numerous examples previously of good intentions like this being lost when the legislation is drafted because HMRC is so paranoid about the possibility of tax avoidance.

www.hm-treasury.gov.uk/press_74_11.htm

3. EMPLOYMENT TAX

3.1. Ex-gratia payments

An Employment Appeal Tribunal has considered whether what was described as an 'ex gratia' payment in a termination letter was in fact that, or whether it was a payment in lieu of notice (PILON) that the employee was not permitted to work and which would have been a similar amount.

The employer chose to describe the payment as ex gratia and not subject to PAYE (as it was below the £30,000 limit in ITEPA s403). The termination letter gave no indication the employee had waived any right to receive a PILON by accepting the 'ex-gratia' payment. The employer argued that the payment should be regarded as being an amount in lieu of the notice due but not provided. The Tribunal however, found that the payment was ex-gratia as described in the termination letter, leading to the conclusion that it was still open to the employee to make a claim according to the terms of her employment contract (in respect of the required notice period).

This may be an important decision both in terms of the way in which employers record what is being paid in circumstances where an employee's employment is being terminated, and as regards the scope for HMRC to argue that such payments are something other than the 'label' applied.

HMRC sets out its view on the tax treatment of PILONs in its Employment Income manual. Great care should be taken to ensure that the nature of the payment is correctly categorised to ensure correct tax treatment and not leave either the employer or employee exposed to unexpected liability.

The lesson for employers from this case is that care should be taken in the drafting of letters giving notification of termination of employment, with both the tax and commercial implications needing attention.

www.bailii.org/uk/cases/UKEAT/2011/0430_10_2705.html

3.2. Form 42 Share Options and Stamp Duty

We have received confirmation from HMRC that Stamp Duty is a deductible amount for the purposes of ITEPA s480(2)(b) (expenses incurred in connection with the acquisition of securities arising from a securities option).

This has two important consequences:

Calculating the deductible amount

In calculating any employment related securities (or interest in securities) charge (or a charge related to the acquisition of securities pursuant to an employment related securities option), included within the deductible amount is (amongst other things) any consideration given for the acquisition of the security (or interest in security or securities option). In relation to an ITEPA part 7 chapter 5 (securities options) charge, deductible amount also includes (s480(2)(b)) "the amount of any expenses incurred in connection with the acquisition of securities.....". Expenses of acquisition are not specifically included in the deductible amounts under chapter 2 (s428(7)) and chapter 3C (s446T(3), though these provisions do include any payment made for the employment related security.

Reporting

In connection with form 42 reporting for the acquisition of securities in connection with securities options, the note on column 11 of section 1b states the deductible amount must include: "The total consideration paid for the grant of the option and for the acquisition of the securities (including the exercise price) together with expenses incurred in connection with the acquisition of the securities." Therefore the cost of stamp duty should be included where this has been incurred by the individual.

Note that often the employer pays the stamp duty so this will not be in point.

3.3. Updated Frequently Asked Questions on disguised remuneration

HMRC updated the Frequently Asked Questions on disguised remuneration on 5 July to take account of amendments to Finance Bill 2011. There are also questions and answers on the effect of the legislation on certain arrangements for tax advantaged share schemes.

www.hmrc.gov.uk/budget-updates/march2011/drl-faq.pdf

4. BUSINESS TAX

4.1. Bank levy, double tax relief and draft regulations

So far eight member states of the EU have introduced a bank levy (Germany, France, Latvia, Hungary, Austria, Portugal, Sweden and the United Kingdom). Denmark and Belgium have introduced taxes on deposit guarantee schemes.

Draft regulations have been issued by the UK to provide for double tax relief for foreign banking groups or entities in relation to the UK bank levy where that foreign bank or entity also suffers the bank levy introduced by France. A claim for relief is required which must be by the later of (i) four years after the end of the accounting period for which the UK bank levy is treated as an amount of corporation tax suffered, and (ii) the year after the end of the accounting period in which the French levy is paid.

www.hmrc.gov.uk/drafts/bank-levy-dtr-regs-2011.htm

www.hmrc.gov.uk/drafts/bank-levy-dtr-regs.pdf

4.2. Finance Bill 2011 date of substantive enactment

Finance Bill 2011 had its third reading in the House of Commons on 5 July 2011. Its first reading in the House of Lords took place on 6 July 2011, with the second reading due to take place on 18 July. There then remains House of Lords committee stage, report stage and third reading before the Bill becomes ready for Royal Assent. Substantive enactment for UK FRS accounting purposes however took place on 5 July 2011.

http://services.parliament.uk/bills/2010-11/financeno3.html

Under both IFRS and UK GAAP, changes in tax law are not reflected in the numbers included in the balance sheet/statement of financial position until the law has been substantively enacted at the relevant financial reporting period-end date. Only FRS19 and FRS16 specify what 'substantively enacted' means. The date of substantive enactment is either:

  • the date the Bill has been passed by the House of Commons and is awaiting passage through the House of Lords and Royal Assent, or
  • the date a resolution that has been passed under the Provisional Collection of Taxes Act 1968.

This definition of the date of substantive enactment is normally also used for international accounting standards. Both UK GAAP (IFRS21 para 22) and IAS (IAS10 para 22) require non-adjusting post balance sheet events to be disclosed if the effect is material. A non-adjusting post balance sheet event includes enacted or announced changes in tax rates after the balance sheet date that will affect current and/or deferred tax. As of 5 July 2011 (the date of substantive enactment of the change in the corporation tax rate to 25% for 2012/13) the following are non-adjusting post balance sheet events:

  • the 1% reduction in main rate of corporation tax each year from 1 April 2013 to 1 April 2014 (when the rate will become 23%),

To date (8 July 2011) the only changes to be substantively enacted, are the changes to:

  • the main tax rate for the years starting 1 April 2011 to 26% and at April 2012 to 25%,
  • the small companies rate to 20%,
  • rates of capital allowances effective from 1 April 2012 (18% for the main pool at 8% for special rate pool).

4.3. Double Taxation Treaty Passport Scheme

Frequently Asked Questions 1 to 17 were published at the introduction of the Double Taxation Treaty Passport (DTTP) Scheme in 2010. HMRC has recently added the supplementary FAQs 18 to 25 in response to questions asked since then.

www.hmrc.gov.uk/cnr/dttp-faqs.pdf

4.4. Venture Capital Schemes Consultation

In addition to the proposed introduction of the BASIS scheme as noted at 2.1 above, that government consultation also included further refinements to venture capital schemes as follows:

  • Proposals to relax the conditions for qualifying shares in EIS by aligning them with the new definition introduced for shares permitted for VCT investment as introduced by Finance (No 3) Act 2010 Sch2 para 2 (amending ITA s285). Input is requested on: how the conditions on connection can be relaxed where a company needs short term emergency funding; whether anti-dilution clauses can be introduced to encourage investment in very early stage companies; whether a disposal of shares on a merger could occur without loss of EIS relief on the basis the merged group still met the EIS conditions; how access to EIS relief can be facilitated for those who miss out as a result of the condition requiring shares to be fully paid up at issue; a potential review of excluded activities.
  • Refocusing of VCT and EIS. Proposals are put forward to ensure money-lending and financial activities are properly excluded. This change is targeted at stopping schemes which include those which appear to be set up for a relatively short space of time, employing no staff, subcontracting all activities, and producing a pre-determined return similar to a loan transaction on advantageous terms. A series of conditions is proposed where if three or more are met, the company will be disqualified. It also proposed that companies preparing to trade, but in fact set up to acquire a trading company which would not otherwise meet the size limits of the venture capital schemes, would not be permitted to obtain EIS/VCT relief. The qualifying company will need to continue to meet the size conditions after acquisition.
  • Proposals are also considered to exclude from qualification for EIS/VCT relief, those companies with trades based substantially around the receipt of feed in tariffs (FITs). The proposal (in the form of draft legislation) will exclude those companies engaged in solar and wind energy generation, but will still permit those engaged in generating electricity by hydro power or anaerobic digestion. Community interest companies, co-operative societies, community benefit societies and Northern Ireland industrial and provident societies will, however continue to qualify even if using wind or solar power for generation.

There are proposals for ensuring similar treatment for overseas businesses.

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

5. VAT

5.1. Recovery of input VAT and intention to trade

The Upper Tribunal has overturned a First Tier Tribunal decision in relation to a 13th Directive VAT reclaim by a US research & development corporation (SRI) for a payment in connection with a deed of release from a rental obligation.

The First Tier Tribunal considered that the question of whether input tax was recoverable was a two stage process:

  1. was the VAT input tax in the first place (determined in accordance with VATA s24(1));
  2. to what extent the input tax could be linked to taxable supplies (determined in accordance with VATA s26). They agreed with HMRC that there was no evidence of SRI undertaking a business in the UK. They also considered there was no direct and immediate link between the payment in connection with the lease obligation and any business carried on by SRI. They therefore concluded there was no right of recovery for input VAT associated with the release payment.

The Upper Tribunal found on a re-examination of the facts that SRI had guaranteed the lease of an investee company in the expectation that that investee company would ultimately use its research and development services, so that SRI would be undertaking fee related work in the UK. In the Upper Tribunal's view there was more than a mere hope by SRI of this future work, there was a 'reality' of expectation. There was thus an intention to trade and had SRI been registered in the UK, the input tax incurred on the payment would have been SRI input tax in accordance with SI1995/2518 reg 186. There was no need (according to that regulation) to demonstrate any direct or immediate link to taxable supplies.

It is interesting to contrast this case with the recent BAA case where input VAT recovery was denied, but in different circumstances, and not in respect of a 13th Directive claim. The clear lesson to be learned from these cases is that it is necessary to show an intention to undertake taxable activity and to organise one's affairs in order to facilitate recovery of input VAT.

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

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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