1. GENERAL NEWS
1.1. Litigation and Settlements Strategy
The Litigation and Settlements Strategy (LSS) introduced in 2007 has been refreshed.
The LSS sets out the principles within which HMRC handles all disputes about any taxes, duties or credits, where those disputes are subject to civil law procedures, and whether disputes are resolved by agreement with the taxpayer or through litigation.
There are no fundamental changes to the strategy as originally launched but the rewrite does change the emphasis on certain aspects and drops some of the internal procedural points.
www.hmrc.gov.uk/practitioners/lss.pdf
1.2. Integrating the operation of income tax and National Insurance contributions
The Government has issued a call for evidence as part of its consideration of the integration of the operation of the income tax and National Insurance contributions systems, announced at Budget 2011.
This is a preliminary stage of consultation, and aims to build a strong evidence base on the burdens to employers of having to operate two different systems. Responses to this call for evidence will inform the Government's proposals for reform, on which it will consult in the autumn.
The two systems are currently operated separately and the Government believes that greater integration of the two has the potential to remove economic distortions, reduce burdens on business, and improve fairness for individual earners.
David Gauke, Exchequer Secretary to the Treasury, said:
"The Government is committed to a programme of tax reform that aims to make the UK tax system the most competitive in the G20 for business and simpler to understand for individual taxpayers.
Greater integration of income tax and NICs will be a radical reform but we believe that it has potential to bring real improvements. This is a first step in our consideration of this matter and we would like to hear from businesses and other stakeholders before we move on to further consultation later in the year."
www.hm-treasury.gov.uk/d/condoc_income_tax_national_insurance_contributions.pdf
1.3. OTS and the review of pensioner tax and share schemes
The Exchequer Secretary to the Treasury has responded to the letter from the OTS, which was reported in Tax Update of 4 July 2011.
www.hm-treasury.gov.uk/d/ots_letter_050711.pdf
The simplification agenda will continue with projects looking at the complexities involved with pensioners' taxation (initial report by Budget 2012) and share schemes (report on the four Government approved schemes by Budget 2012).
1.4. Deterrents and safeguards – tax agents and dishonest conduct
HMRC has issued a discussion document on revised draft legislation for dealing with dishonest conduct of tax agents. It follows a May 2011 consultation where original draft legislation was felt to be too widely drawn and disproportionate in effect. The changes proposed in the current document include:
- the new rules will only apply to tax agents (named individuals rather than firms) assisting clients in the course of business;
- the notification process has changed so that there is (i) a determination of dishonest conduct notification and (ii) a separate notification for access to the tax agent's files. The notice of dishonest conduct will be issued by HMRC only after an authorised HMRC officer has approved the notice. To obtain access to the tax agent's files and working papers, HMRC will have to first apply to the First Tier Tribunal (requiring the consent of an authorised HMRC officer). The notice cannot specify papers covered by legal professional privilege, nor personal information. If the Tribunal approves the notice there will be penalties for non-compliance, which may be adjusted depending on the level of disclosure and co-operation by the tax agent. As before the maximum penalty proposed is £50,000, but it will not be tax geared;
- there is an agent right of appeal to the First Tier Tribunal (and beyond if appropriate) against the issue of a notice of dishonest conduct. They will also have a right of hearing at Tribunal in relation to the HMRC application for access to the tax agent's papers. If a third party holds the papers they can make an appeal in the same way the tax agent can;
- only illegitimate loss of tax will be caught by the revised legislation;
- advice to the general public would not be caught;
- access to documents up to 20 years old only is permitted under the rules unless they are still relevant for tax purposes.
2. PRIVATE CLIENTS
2.1. Penalties for careless errors
A taxpayer who had had two employments during the year ended 5 April 2009 waited until the last possible day to complete and file (electronically) his tax return. He reported the figures on the P60 he was given from the current employer, which while taking account of both employments, indicated the figures from the later employment should be included on the tax return. The taxpayer could not get someone from HMRC to help, and so filed the tax return, omitting the earlier employment in the mistaken belief that he did not need to return this to HMRC. The return as filed indicated a tax overpayment of £4,184, while the corrected tax return indicated an underpayment of £504. HMRC levied a penalty for careless error of £703, being 15% of the tax, and the taxpayer appealed. The Tribunal agreed that a penalty was due, and that the taxpayer should not have waited until the last day for filing before trying to contact HMRC. However they felt the error was not serious and would easily be picked up by HMRC and therefore reduced the penalty by 50%.
www.bailii.org/uk/cases/UKFTT/TC/2011/TC01246.html
3. EMPLOYMENT TAXES
3.1. Pay day by Pay day tax relief
HMRC has issued a news note targeted at umbrella companies, employment businesses and labour providers that are proposing to operate a business model which applies tax, and in some case National Insurance contributions, on a 'pay day by pay day relief' model.
Under this model temporary workers engaged under overarching employment contracts who incur travelling and subsistence expenses which are eligible for a tax deduction under ITEPA 2003 s338, are paid a gross pay which is intended to be compliant with the National Minimum Wage legislation. However, rather than then subjecting this gross pay to Income Tax and NI, the employer applies tax and NI contributions 'relief' to the amount of expenses which the employee has incurred with the effect that only the balance is subjected to Income Tax and NI This tax and NI contributions 'relief' is applied each pay day.
However Income Tax is an annual tax and is assessed in respect of a particular 'year of assessment'. Any deductions from Income Tax (for example as provided for under section 338 ITEPA) are made from the total income for the year of assessment.
There are various requirements which must be met in order to receive the benefit of the tax deduction at the end of the tax year. These include that the claim for the deduction by the employee must be made to HMRC - there is no statutory framework for employers to operate the reclaim process.
An employer operating the 'pay day by pay day tax relief' model would also not be accounting for the correct employers' and employees' National Insurance contributions due to HMRC.
For the purposes of calculating an employee's earnings, the Social Security Contributions and Benefits Act 1992 provides that 'earnings' includes any remuneration or profit derived from the employment, including wages and salaries.
The Social Security (Contributions) Regulations 2001 provide that payments made by the employer to the employee to cover certain travelling expenses incurred by an employee can be disregarded in the calculation of earnings for National Insurance purposes from the employed earner's employment for the purposes of earnings related contributions (ie where such payments are made, those payments will not count as 'earnings' for the relevant earnings period). However, the relevant legislation does not provide for a deduction from the amount of that employee's earnings where the employee meets the travelling expenses out of total income/earnings.
www.hmrc.gov.uk/news/relief-models.htm
4. BUSINESS TAX
4.1. IAS 39 and possible changes to the Loan Relationship and Derivative rules
HMRC issued a discussion paper (www.hmrc.gov.uk/drafts/ias39-wg-discpaper3.pdf) for a working group meeting on 1 October 2010 setting out draft regulations amending legislation in Parts 5 and 7 of Corporation Tax Act (CTA) 2009 in response to changes to accounting standards arising from International Financial Reporting Standard 9 (IFRS 9). IFRS 9 is the proposed replacement of IAS39 Financial Instruments.
Discussion paper 4 issued 11 July 2011 (www.hmrc.gov.uk/ct/loans-derivatives-rules.pdf) responds to comments made on discussion paper 3 and explains HMRC's approach to amendments to tax rules on loan relationships and derivative contracts, in light of recent announcements from the International Accounting Standards Board (IASB) on the implementation of the IFRS 9 project.
In summary, the paper covers the following areas:
- Changes of accounting policy. Amendments are needed to the wording of s315 and s613 CTA 2009, in order to widen the application of these sections so that they apply in the full range of circumstances in which a company's accounting policies change as a result of the adoption of new accounting standards.
- Tax adjusted carrying value. The term 'tax adjusted carrying value (TACV) will replace 'carrying value'. CTA09 s349 will be amended to make it clear that where amounts have been brought into account under s316, s349 applies as if the 'cost' of the asset or liability is equal to the TACV at the beginning of the period of connection
- Other comprehensive income. Under IFRS 9 certain amounts may be taken to 'other comprehensive income' (OCI). This may appear as a separate statement or as a component of a single performance statement. 'Statement of comprehensive income' is already a defined term for the purposes of CTA09 Part 5 and Part 7 (s476 and s710), and there is no need for any change to the list of statements in which amounts are recognised (s308 and s597) to accommodate the term 'other comprehensive income'. However, s328, s384, s606 and s620 (Exchange gains and losses) don't currently refer to such a statement, and will be amended accordingly to be consistent with the core provisions.
- Hybrid compound instruments. for periods after the adoption of IFRS 9, the taxation of hybrid and compound instruments will follow the accounting treatment. This is subject to the insertion of a new s417A CTA 2009 to replicate the provision in s642, to apply the Substantial Shareholdings Exemption in respect of post-IFRS 9 securities that would have qualified had IAS 39 continued to apply. The treatment of existing instruments will be grandfathered.
- Hedge accounting. Under the IASB's proposals in ED/2010/13, hedge accounting will be more permissive, simplified and more closely aligned with the risk management activities undertaken by entities. As a result, there is likely to be more hedge accounting, and it may take different forms - new instruments will be permitted as hedging items and different risks will be hedged. Further proposals are understood to be forthcoming on portfolio (or macro) hedging. HMRC generally don't see a need for amending the current disregard regulations, but have requested input on this. IAS 39 makes references to OCI (for example, at paragraph 95) but the Disregard Regulations have not been similarly amended. While HMRC doesn't believe this affects the current operation of the Disregard Regulations, for the avoidance of doubt they propose to insert a reference to OCI in certain places (for example, Regulation 6(5A)(a)(iii) and Regulation 9A(1)(b)). Apart from this, HMRC doesn't consider that further changes to the Disregard Regulations are currently needed.
Comments requested by 1 September 2011.
4.2. Revenue brief 25/11 – Goodwill and synergy and the corporate intangibles regime
HMRC has issued a brief following the Upper Tribunal's decision in the Greenbank case. In HMRC's view this decision indicates that goodwill arguments advanced in relation to synergy benefits are likely to be treated in the same way as the Upper Tribunal has ruled in the Greenbank case (i.e. that they do not qualify for the corporate intangible asset regime). The assumption is that they are referring to acquisitions between related parties which are part of a scheme or arrangement to seek to bring within the intangibles regime goodwill that might otherwise be classified as pre April 2002 goodwill. However the brief is not explicit as to which circumstances HMRC believe follow the Greenbank decision.
www.hmrc.gov.uk/briefs/company-tax/brief2511.htm
4.3. Business Records Checks Brief
HMRC has issued a summary of responses document and a brief covering the business records checks. Included in the summary of responses document is the following comment with respect to how penalties will be levied for failures in business record keeping:
"It has been made clear that although Business Records Checks are currently being conducted on a 'test and learn' basis without penalties (other than in exceptionally serious cases), Business Records Checks with penalties will not begin without first allowing a reasonable period for all businesses to bring their record keeping up to standard. It is in this way that HMRC will give businesses the opportunity to get their record keeping on the right track before penalties will apply."
It also issued the following Brief which includes the following:
"There were a broad range of responses to the consultation document for Business Records Checks (BRC), many of which raised additional questions or made comments outside of the scope of the consultation document itself. This note provides some context on the purpose and basis for BRCs. HMRC is continuing to engage with interested parties as BRC is developed.
The consultation document was clear that HMRC was consulting on how and not whether to implement a programme of BRC to achieve a step change in the standard of record keeping across the SME population.
However, the BRC process is currently in a 'Test & Learn' Phase, and therefore how BRCs are implemented, and how the checks themselves are undertaken, is not finalised. There is scope for the development of the BRC product to be influenced by the experiences, comments and other input from our customers and professional bodies during this period.
Rationale for Business Records Checks
HMRC's programme of random self assessment enquiries has identified the top 3 errors made by businesses as being:
- understated sales
- overstated expenses
- incorrectly claimed private expenditure
The programme also showed that in 40% of cases the underlying records being maintained by businesses were inadequate. Poor business records are a significant cause of underreporting of tax liability by small businesses.
Prior to the Finance Act 2008, the main way in which HMRC could check whether or not a business was keeping adequate business records was by opening an in-depth, formal enquiry into a tax return which had already been sent to HMRC. But this post return compliance check could be time-consuming and costly for HMRC as well as for businesses. And, because the check could only be carried out after the tax return had been made, it focussed on correcting errors rather than preventing them from occurring.
Following extensive consultation, Schedule 36 Finance Act 2008, included a power to inspect business records before the return has been made to HMRC.
BRCs are designed to enable HMRC to inspect the adequacy of a business' records keeping by means of a quicker pre-return check, in order to reduce the burdens on business that would be associated with a subsequent in-depth enquiry post return.
HMRC already provides education and support to help businesses with their record keeping obligations. The help provided includes a useful factsheet and an online record keeping tool on Business Link.
BRCs are intended primarily as a 'compliance check' for businesses where we have identified a risk that their record keeping systems may be inadequate.
Although derived from direct tax legislation a penalty charged is of universal application in that it points to a failure to keep records that will potentially affect the ability of the customer and HMRC to determine the accuracy of the returns for all taxes. The BRC will consider the adequacy and completeness of the underlying business records of sales, purchases and other amounts received or spent which may, in practice, be relevant to more than one tax regime. For example, records of payments to employees will generally be relevant in computing both business profits and for PAYE purposes.
We will charge a statutory penalty where our check discovers serious record keeping failures. Charging a penalty is intended to change the behaviour of those who, despite all of the support available, have kept records which fall short of what the law requires.
Legal basis for charging penalties in relation to an in-year Business Records Check
We have been asked about the legal basis for charging penalties in relation to an in-year BRC. Section 12B
(3) Taxes Management Act 1970 says
"In the case of a person carrying on a trade, profession or business alone or in partnership
- the records required to be kept and preserved under
subsection (1) above shall include records of the following, namely
–
- all amounts received and expended in the course of the trade, profession or business and the matters in respect of which the receipts and expenditure take place, and
- in the case of a trade involving dealing in good, all sales and purchases of goods made in the course of the trade."
HMRC may, by law, check whether or not a business is complying with this requirement before or after a return is made.
What a Business Records Check will entail
The check will consist of an examination of the business records, related to the size and nature of a business, often using sampling techniques, to check whether or not those records comply with the requirements of Section 12B (3). The check will focus on the record keeping as such, rather than on tax liability issues, which may not crystallise until the return is made to HMRC.
The extent to which any failures to comply fully with the statutory record keeping obligations will be deemed 'serious' cannot be a tick-box exercise and will be a matter of judgement, taking account of the nature and size of the business and any previous record keeping failures.
What assurance can businesses take from a Business Records Check?
We will tell businesses whose records for the period examined fall short of what we expect; why that is the case, and what they need to do to put things right. However a BRC is not an approval or endorsement of any one record keeping system and taxpayers will still be responsible for making a complete and accurate return when it is due.
Guidance for HMRC staff
We will publish operational guidance for HMRC staff carrying out BRC in accordance with existing practice. The experience gleaned during the 'test-and-learn' period will be used to help develop that guidance."
4.4. Capital allowances and fixtures
A partnership trading as 'The Granleys' purchased a nursing home in 2003 from a vendor partnership in December 2003 for £650,001. The contract specified the apportionment as:
- Benefit of contracts £1.
- Goodwill £12,500.
- Fixtures and fittings £40,000.
- Property £597,500.
In September 2003 the vendors had commissioned Tax Management Services (TMS) to undertake a capital allowance review and this firm had identified £106,014 of expenditure that had not previously been claimed. None of the items identified were included in the fixtures identified as valued at £40,000 in the sale contract. TMS fees were not paid by the vendor. TMS then contacted the Granleys, the purchaser, mentioning the extra expenditure, but not directly mentioning to them that the vendors were aware of the expenditure. TMS confirmed to the purchasers that their report had not been submitted to the vendors.
The purchasers claimed for capital allowance expenditure amounting to £146,014 (the £40,000 and the amount identified by TMS) and contended it was HMRC's obligation to identify whether the vendors had claimed allowances on the £106,014 portion of expenditure. The purchasers had made efforts to clarify the position with the vendors but it seemed they were no longer contactable, having emigrated to the USA.
HMRC was able to show that the vendors had claimed an increased amount of capital allowances in their return for the 2003/04 year and HMRC concluded they had therefore claimed for allowances on the full amount of the extra capital allowance qualifying expenditure (i.e. including the £106,014). HMRC commented that they were unable to verify the disposal value used in the vendor's capital allowance computation, but contended that it was reasonable to assume it would have been in the region of the £40,000 agreed in the contract. They contended that as the purchasers had failed to show the vendors had not claimed for the expenditure, the purchasers were limited in their claim to the disposal value used by the vendor.
The Tribunal agreed with HMRC that it was not their responsibility to prove the expenditure had not been claimed by the vendor. No s198 election was made to agree the tax value attributable to fixtures. In the absence of any evidence to the contrary the Tribunal saw no reason to alter the amount agreed as apportioned to fixtures in the contract at £40,000. The contract was between parties acting at arms length and the Tribunal saw no justification for substituting some other just and reasonable value for fixtures.
www.bailii.org/uk/cases/UKFTT/TC/2011/TC01231.html
5. VAT
5.1. VAT treatment of services related to property
We understand the Dutch Supreme Court has requested a preliminary ruling from the European Court of Justice (ECJ) about its interpretation of the VAT exemption applicable to transactions including negotiation in shares and other securities.
This specific case involved a company, which provided advisory and management services in the real estate sector and acted as a negotiator in a number of sales of real estate properties. The transfer of the properties occurred by way of the sale of the shares of the companies owning the asset. These services were considered as VAT exempt by the service provider by virtue of the VAT exemption applicable to transaction in shares.
The Dutch authorities, however argued that these services had to be considered as services connected to real estate and therefore had to be subject to VAT where the property was located (i.e. in the Netherlands). The main argument of the Dutch authorities was that the service provider acted as a real estate broker and intended to find a purchaser paying the best price for the real estate. The fact that the deal was undertaken in the form of a sale of shares did not, in their opinion, influence the nature of the services provided by the real estate broker.
The specific questions referred are (we understand):
- Does Article 13B(d)(5) of the Sixth VAT Directive have to be interpreted that it includes activities carried out by a taxpayer, which concern the (indirect) transfer of real estate owned by companies, merely because the activities were aimed at and resulted in the transfer of shares of the companies concerned?
- Does the exception concerning the exemption of Art. 13(B)(d)(5) of that Directive also apply if a Member State has used the option provided for in Art. 5(3)(c) of the Sixth VAT Directive to classify certificates and shares entitling to the ownership or use of real estate as tangible assets?
- If the preceding question is answered in the affirmative, does the term certificates and shares include shares in companies, which directly or indirectly (by means of subsidiaries) own real estate, regardless whether they exploit the real estate or use it for a different company?
The question of the VAT treatment of property services in connection with the transfer of a property was recently considered in the UK at the First Tier Tax tribunal (the case of Joiner Cummings [2010] UKFTT 606 (TC) TC00847), http://www.bailii.org/uk/cases/UKFTT/TC/2010/TC00847.html.
This was a case where Joiner Cummings provided services in connection with the transfer of a property (22 Kingsway London) from Glen Kingsway Limited Partnership (GKL) to Land Securities plc. The transfer was effected through a Jersey Property Unit Trust as part of an arrangement to minimise SDLT. The estate agent treated their services as VAT exempt intermediary services relating to a transaction for the transfer or receipt or any dealing with any security, being units or other documents conferring rights under any trust (VATA Sch 9 Group 5 item 5). HMRC contended the services were standard rated services, relating to the property contained within the trust.
The Tribunal concluded that the management of the trust was such that it was different from GKL directly owning the underlying asset, and that the services provided by Joiner Cummings were in fact intermediary services relating to the transfer of units in a unit trust, and that therefore the services fell squarely within the VAT exemption provisions claimed.
However the reference to the ECJ by the Dutch Supreme Court could significantly change the analysis in this case and other property transactions of a similar nature if the ECJ were to agree with the Netherland Tax Authorities' position.
5.2. Supply of land and water – single or multiple supplies
HMRC sought to treat the supply to the barristers of Middle Temple of a lease of land combined with the recharge of cold water supply costs as a single supply on the basis of the ECJ case of Levob (Case C-41/04 Levob [2005]). They held that the cold water supplied by lessor (The Honourable Society of Middle Temple) to their commercial tenants (barristers) was so closely linked to the lease that it formed objectively a single indivisible economic supply with those leases. The property had been opted to tax and therefore HMRC thought the whole supply should be standard rated. The supply of cold water alone is a zero rated supply (VATA Sch8 group 2 item 2). The supply of water by Thames Water is made to the lessor on a metered basis and recharged by the lessor to the tenants on the basis of the area leased.
The Tribunal agreed with the appellants that the supplies of rent and water retained their separate identity despite being linked and that therefore there was a multiple supply. There was no economic advantage in the combining of the two supplies, and it would not have been in accordance with fiscal neutrality to treat the tenants of middle temple differently with respect to VAT on water supply (standard rated VAT), compared to those property occupiers outside Middle Temple, supplied by the same Thames Water piping, but who were invoiced separately by Thames Water (applying the zero rate). The case of Levob required that the packaging of the product must result in something which is no longer distinct but a compound service in order to be seen as a single supply. It was an accident of history that the water and the leasing were combined, so the principles in Tellmer (Case C-207/07 RLRE Tellmer [2009]) were held to apply.
In Tellmer the Court said that the leasing of the property and the cleaning did not form a package since the tenants had the option of obtaining cleaning services from suppliers other than the landlord and the letting and cleaning cannot be regarded as constituting a single transaction.
www.bailii.org/uk/cases/UKFTT/TC/2011/TC01245.html
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
