UK: Weekly Tax Update - Monday 10 October 2011

Last Updated: 17 October 2011
Article by Richard Mannion

1. Private Clients

1.1. Switzerland and the UK sign tax agreement

The Swiss Federal Councillor Eveline Widmer-Schlumpf and the UK Exchequer Secretary to the Treasury David Gauke have signed a tax agreement under which persons resident in the UK can retrospectively tax their existing banking relationships in Switzerland either by making a one-off tax payment or by disclosing their accounts. Future investment income and capital gains of British bank clients in Switzerland will be subject to a final withholding tax, and the proceeds of this will be transferred to the British authorities by Switzerland. In addition, mutual market access for financial services will be improved. The agreement requires the approval of parliament in both countries, and should enter into force at the start of 2013.

The agreement will be considered by Parliament in due course and is now available on the HMRC website.

1.2. Agent copies of HMRC forms

HMRC has issued the following update:

Following an announcement in 2010 on the withdrawal of agent copies of some forms, HMRC held useful discussions with some agent representatives and listened to feedback from the wider agent community. As a result of this feedback, HMRC has decided to change part of its plans. Agent copies of forms P800, SA250 and SA251 will be retained for the time being. The updated position is set out below.

2. PAYE and Employment matters

2.1. Employed or self-employed?

The following article by Rachel Stone and Richard Mannion appeared in Personnel Today on 3 October.

The recent case of Autoclenz Ltd v Belcher is important for all HR professionals to understand. It highlights the importance of clarity around the employment status of those they engage. Most importantly, it makes it clear that the courts will focus their attention on the actual reality of the working relationship, rather than rely on contractual documentation.

As a quick reminder, the Autoclenz Ltd case started in the employment tribunal in 2007 and eventually found its way to the Supreme Court. The question was whether or not 20 individual car valeters were employees for the purpose of the national minimum wage. The contracts indicated that the company had no obligation to offer work and the valeters had no obligation to accept work if offered.

However, the courts decided that the written contracts did not reflect the true agreement between the parties and in reality the essential contractual terms were that the valeters:

  • would perform the services defined in the contract for Autoclenz within a reasonable time and in a good and workmanlike manner;
  • would be paid for that work;
  • were obliged to carry out the work offered to them and Autoclenz undertook to offer work; and
  • must personally do the work and could not provide a substitute to do so.

The Supreme Court decided that the individuals were employees.

Q How do courts and tribunals determine whether someone is employed or self-employed?

The question of whether someone is employed or self-employed is determined by the application of the case law that has developed over the last 100 years or so to the facts of the case under review.

The main tests laid down in the case law are as follows:

  • Mutuality of obligations. In simple terms: was the "employer" under an obligation to offer work and was the "employee" under an obligation to accept the work if offered? If there are no mutual obligations there can be no contract of employment.
  • Master/servant relationship. Can the "employer" tell the "employee" how to do the work?
  • Integration. Is the "employee" operating as part of a team? For example someone who manages a team of employees is likely to be an employee.
  • Economic reality. Does it look like the person is self-employed, for example do they provide all their own tools and do they work for a number of customers?
  • Painting a picture. All of the above tests need to be considered; none will decide a case on its own. One judge said that it was necessary to "paint a picture" with all of the details and then stand back to look at the picture from a distance.

Q What if the agreement between the parties is that the individual is a sub-contractor?

Regardless of the agreement, the courts will look at how the working relationship actually operates, using the tests above to assist them. This means that employers should review all sub-contractor arrangements to make sure that they are not at risk of creating employment relationships unintentionally.

Q What does this mean for HR professionals?

HR professionals should take time to review contractual arrangements, and to assess the risk that some subcontractor or consulting arrangements may well be giving rise to employment rights. If this happens, it may be better formally to acknowledge this, and make sure that those workers are properly included in your terms, conditions and policy framework. Pay particular attention to sub-contractors or consultants who work with you for longer than originally anticipated, or become more involved in the business than originally intended.

Q Are there tax and national insurance implications?

Yes, and these can be substantial. It is worth taking tax advice if you believe that you may actually be employing a group of workers who have previously taken responsibility for their own tax and national insurance payments.

2.2. Powers to prevent deliberate non-payment of PAYE

From 6 April 2012 HM Revenue & Customs (HMRC) will be able to ask employers to pay a security where there is serious risk that they won't pay over their PAYE tax deductions or Class 1 National Insurance contributions (NICs).

HMRC says the power will not be used against employers who are having genuine problems.

2.3. Lecturers, teachers, instructors or those in a similar capacity

HMRC has commenced a consultation examining the role of the Social Security (Categorisation of Earners) Regulations 1978 Regulations and The Social Security (Categorisation of Earners) Regulations (Northern Ireland) 1978 in relation to lecturers, teachers, instructors or those in a similar capacity.

HMRC has concluded that the Regulations were introduced in 1978 to apply only in what might be termed "traditional educational" but their ambit was extended by virtue of the outcome of the St. John's College case. HMRC has further concluded that given changes in the way instruction is delivered and has evolved since 1978, the fact that there appears to be questionable positive contributory benefit implications, and in the context of Government's initiative in promoting simplification, the Regulations relating to lecturers, teachers, instructors or those in a similar capacity are no longer necessary and should be repealed.

It is therefore proposing to repeal the Regulations with effect from 6 April 2012.

2.4. NICs: Categorisation of Earners - teachers, lecturers and tutors

HMRC has withdrawn its guidance at ESM4503.

This covered the Social Security (Categorisation of Earners) Regulations 1978 in relation to lecturers, teachers, or those in a similar capacity ("the Regulations").

The note from HMRC advises that vocational training providers should not consider or apply the Regulations. However traditional educational establishments, such as schools, colleges or universities etc. should continue to consider the Regulations and apply them where appropriate.

Most teachers etc are engaged either part-time or full-time under a contract of service. Where they are not, the Regulations make provision for treating most teachers, who are not employed under a contract of service, as employees. They provide for a teacher, lecturer or instructor who teaches in an 'educational establishment' to be treated as an employed earner if they teach in the presence of their students (unless they are working for the Open University); and are paid by the Education Authority or the person who provides the education.

3. Business tax

3.1. Disputed allocation of partnership profits

The HMRC's Enquiry Manual has been updated to reflect the revised requirements for individual partners to submit correct personal returns where there are disputes about profit allocations. This follows the First Tier Tribunal cases of Morgan and Self v HMRC TC00046 and Raymond John Phillips v HMRC TC00276.

HMRC acknowledges that where, in exceptional cases, there is a genuine disagreement that cannot be resolved between the partners, individual partners should enter, as their share of partnership profits, the amount they consider to be correct and advise that they have done so by making an entry in the white space notes section of the return to show;

  • the profits as allocated in the partnership statement;
  • a deduction (or addition) of the disputed amount; and
  • an explanation about why they think the profit allocated to them in the partnership statement is wrong.

If the individual partner does this, then HMRC would not automatically regard the personal return as incorrect if profits, as declared by the individual, were a "net" amount after deducting the disputed amount.

3.2. Proposed changes to the REIT regime

Following the informal consultation on changes to the REIT regime which closed on 10 June, HMT issued a note to stakeholders on 4 October, summarising the responses and its further comments. The note indicates proposals for amending the REIT regime will be available on 6 December 2011 which abolish the conversion charge on entry, relax the listing requirements, permit cash to be a good asset for assessing the balance of business test, and other financing relaxations.

The note is summarised below:

  • Abolish conversion charge for companies joining the REIT regime

All stakeholders were fully supportive of this reform. HM Treasury has agreed that this charge will be abolished. Currently the charge for a UK company entering the REIT regime is 2% of the market value of the assets of the UK property business at the point of entry, there being no gains chargeable to corporation tax as a result of the revaluation, nor whilst the property assets are within the rental property ring fence (subject to certain conditions).

  • Relax listing requirement to allow listing on non regulated stock exchanges

Currently REITs must be companies listed on a recognised stock exchange. Consultation responses indicated a relaxation of this requirement would result in less onerous reporting rules resulting in a reduction of ongoing running costs. It was thought this would lead to increased accessibility to markets for start ups and smaller companies

HM Treasury has agreed that REIT regulations will be loosened to allow listing on AIM and PLUS markets and their foreign equivalents. Note this measure does not allow the establishment of private REITs.

  • Introduction of fixed grace period for meeting the non close company requirement

The current rules only permit the non-close company test to be failed on entry provided the REIT submits a notice that it reasonably expects to meet the test throughout all of the first accounting period as a REIT apart from the first day. Taking into account all the representations made, HM Treasury has agreed the following measures should be taken:

i) That the length of the grace period will be for three years;

ii) There will be no discretionary extensions;

iii) If the close company rules are not met by the end of the grace period, for legitimate reasons, then the company will lose its REIT status without any further penalty. If, however, a company fails to meet the non close company requirement and it is deemed to have joined the REIT regime to gain a tax advantage, then existing legislation will be invoked; and

iv) On the interaction with the listing requirement, a new REIT taking advantage of the non-close company grace period may still be eligible to list on AIM or PLUS provided they are able to meet the requirements of the AIM or PLUS regime (and thereby benefit from the lower costs of so doing).

  • Introduction of diverse ownership rule for institutional investors

Stakeholders were supportive of this measure on the basis that it will make investment easier for institutional investors, thereby enlarging the pool of potential investment in property. HM Treasury will take this reform forward. The detailed provisions will be available for technical comment when published in draft on 6 December.

  • Allow cash to be a "good" asset for purpose of meeting the balance of business asset test

Cash realised from the disposal of a property used in the 'property rental part of the business of a REIT can be regarded as part of the property business assets for meeting the 75% asset test in CTA10 s531(5) for a 24 month period following a disposal. However, if held for longer without being reinvested in a qualifying asset, such cash is not regarded as part of the property business assets. Under the current rules, cash raised from a rights issue would not come within the definition of assets of the property rental part of the business, and so could cause a problem in meeting the business assets test.

Stakeholders were supportive of a measure that included cash as a 'good asset' as it will allow them to make spending decisions that are commercially based rather than tax based. This reform will be taken forward by HM Treasury and the detailed provisions will be available for technical comment when published in draft on 6 December.

  • Redefinition of "financing costs" (CTA10 s544(3)) for the interest cover test (CTA10 s543)

The industry supports changes to this measure so that it is interest paid on excessive borrowing that will be measured in the test rather than the total finance costs incurred in borrowing. HM Treasury will take this reform forward and the detailed provisions will be available for technical comment when published in draft on 6 December.

  • Extension of time limit for complying with the distribution requirement

For distributions made on or after 16 December 2010 it has been possible to satisfy the dividend distribution requirement (90% of the group's UK profits) by share capital issued in lieu of cash. However if the market value of the share capital is more than 15% different from the cash alternative, the cash value of the dividend paid by way of shares is equal to the market value of the shares. The current rules permit a three month extension for satisfying the 90% distribution requirement where the operation of the market value rule causes the distribution requirement to be failed.

Industry said that the current three month extension is burdensome for REITs operating on a six month dividend cycle and they have asked that the time limit be extended.

HM Treasury agrees that the time limit should be extended to six months. The detailed provisions will be available for technical comment when published in draft on 6 December.

3.3. Institute of Directors (IOD) publication on 'the route back to growth'

The IOD has published a fifteen point plan 'The route back to growth'. This includes measures calling for a reduction in the rate of corporation tax to 15% by 2020 and the abolition of the 50% income tax rate.

3.4. LIFFE becomes a recognised stock exchange for tax purposes

NYSE Euronext, offers international issuers the opportunity to raise capital through and to list their securities on the London market. NYSE Euronext London is operated by LIFFE Administration and Management, which also operates the London market of NYSE Liffe1 (NYSE Europnext's leading international derivatives business).

With effect from 26 September 2011, HMRC has designated LIFFE Administration and Management as a 'recognised stock exchange' under S1005(1)(b) Income Tax Act 2007.

'LIFFE Administration and Management' means the stock exchange (designated as a recognised investment exchange by the Financial Services Authority) in the UK known by that name which is operated by the company which has the name LIFFE Administration and Management.

Securities admitted to trading and listed on the NYSE Euronext London market of LIFFE Administration and Management will meet the HMRC interpretation of 'listed' as set out in S1005(3)(a) and S(3)(b) Income Tax Act 2007.

With effect from 26 September 2011, LIFFE Administration and Management will also be regarded as a recognised stock exchange for Inheritance Tax purposes.

This has implications in the following areas:

  • Close company status: companies with listings on the NYSE Euronext London market of LIFFE will be publically quoted and therefore potentially outside the close company definition in CTA10 part 10 chapter 2, whereas they may not have been before.
  • Capital gains tax: under TCGA s144 the abandonment of a quoted or traded option is a disposal of an asset for CGT purposes, and so the abandonment of an option quoted on NYSE Euronext London market of LIFFE will now result in a CGT disposal, whereas previously it would not.
  • IHT business property relief – shares in companies quoted on NYSE Euronext London market of LIFFE will now become 'quoted companies' for the purpose of IHTA s105 (and thus only eligible for business property relief at a rate of 50% of the transferor has control), rather than 'unquoted (when they would have been eligible for 100% business property relief).
  • As a result of ordinary non-redeemable fully paid up shares being listed on a recognised stock exchange, provided that company is not a close company, its shares and the shares in companies under its control will met the condition eligibility for corporation tax relief (CTA09 part 12) on the difference between amount paid by the employee and its market value under employee share and option plans. Without a listing the conditions for relief would only be met where the shares were shares in a company that was not under the control of another company.

3.5. US Foreign Account Tax Compliance Act (FATCA)

We included a note about updated IRS guidance on the practical aspects of implementing FATCA in Tax Update of 3 May 2011.

On 14 July 2011 the IRS issued a further notice (Notice 2011-53) providing some phasing of the implementation of the information and reporting requirements. The notice comments that further regulations are to be issued in final form in summer 2012 that provide that withholding obligations will commence on 1 January 2014 with respect to any payment of interest (including any original issue discount), dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, and other fixed or determinable annual or periodical gains, profits, and income, if such payment is from sources within the United States.

Participating foreign financial institutions (FFIs) should not be subject to such withholding, providing they have entered into an FFI agreement by 30 June 2013. Withholding obligations of participating FFIs with respect to pass-through payments made to a recalcitrant account holder or made to a non-participating FFI, will be specified in further regulations and will begin no earlier than 1 January 2015.

Further lobbying is taking place and a number of suggestions for amendment to the FATCA regulations are being put forward and we will include further news as this becomes available.

3.6. Single Compliance Process (SCP)

HMRC has issued an update on the SCP. The trials will now run until 31 March 2012 and will be rolled out in May 2012, subject to the trials.

4. VAT

4.1. Referral to the CJEU regarding claims for compound interest

The Upper Tier Tribunal has rejected HMRC's appeal against a referral to the CJEU by the First Tier Tribunal in the case of Grattan plc (concerning compound interest). HMRC contended the substance of the referred question on compound interest did not relate to ascertaining, from the CJEU, guidelines as to the content or interpretation of EU law but instead an application of general principles of EU law which are well established to the procedural rules which apply to the recovery of overpaid VAT (and ancillary interest) in the United Kingdom. In other words, HMRC argue, the CJEU can have nothing to say (and has no jurisdiction to say) anything which will answer this question.

While the Upper Tribunal accepted that the question referred is, in substance, for all material purposes identical to the question which the Court of Appeal declined to refer in Wilkins (John Wilkins (Motor Engineers) Limited v Revenue and Customs Commissioners [2011] STC 1371), they nevertheless determined the referral was within the First Tier Tribunal's remit.

The Upper Tribunal considered that the substance of the question referred was whether the principle of effectiveness and/or the principle of equivalence would be offended if Grattan had to obtain part of its claim in satisfaction (to the extent of simple interest) under VATA 1994, ss 78 and 80, and the balance in a restitutionary claim before the English High Court (if successful in establishing a right to compound interest for overpaid VAT in the first place). This they considered to be a valid enquiry as to the content and interpretation of the relevant principles of effectiveness and equivalence (in the special context of tax) rather than any sort of assumption that these principles are now closed to further development and all that remains is an enquiry as to their application to United Kingdom procedural rules.

4.2. Further guidance on VAT and salary sacrifice arrangements

HMRC has issued further guidance on the imminent new VAT treatment of salary sacrifice arrangements (see 4.2 Tax Update of 15 August 2011).

Salary sacrifice agreements in place before 28 July 2011 which extend beyond 31 December 2011

For salary sacrifice agreements that were signed or otherwise agreed by the parties on or before 27 July 2011 and which extend beyond 31 December 2011, HMRC will allow amounts of salary foregone in return for taxable benefits to continue to be free of VAT until:

  • The date that a fixed term agreement expires or the fixed number of salary sacrifice payments specified within the agreement are completed (if the agreement expires before 1 January 2012 any agreement subsequently entered into should follow the VAT treatment described in section 3 below).
  • The date of an employee's annual salary/benefits review. HMRC will regard any salary sacrifice arrangements put in place after that date as a new agreement for VAT purposes which should follow the treatment described in section 3 below. This will be the case even if the employee continues to receive the same taxable benefits as before the review.
  • The date of any other review or renegotiation that leads to a change in the provision of benefits under a salary sacrifice agreement or to a change in an employment contract.

Following one of the above events VAT will be due on any taxable benefits provided on or after 1 January 2012 by way of salary sacrifice.

Salary sacrifice agreements entered into on or after 28 July 2011

For agreements entered into on or after 28 July 2011 VAT must be accounted for in accordance with the guidance in Revenue and Customs Brief 28/11. With effect from 1 January 2012 VAT will be due on amounts of salary foregone in return for taxable benefits.

4.3. Gym membership and other subscriptions

Esporta has won an important case before the First Tier Tax Tribunal (appeal number TC/2010/9440), establishing that payment arrears recovered from members in breach of their contracts are free of VAT where membership benefits have been denied.

The health and fitness club operator offered a range of memberships, one of them being a contract with monthly payments and a minimum commitment period of twelve months. If a member defaulted on their payments within this initial tie-in period, the membership was not cancelled but the member's swipe card is stopped and access to the gym was denied. If the membership was not re-activated by payment of outstanding amounts, the arrears are eventually pursued via external debt collection agencies and the question before the Tribunal was whether (as HMRC contended) these payments are consideration for a supply of services or outside the scope of VAT (as the Appellant argued) being damages or a form of compensation for breach of contract.

The decision turned, not on legal arguments relating to compensation, but on the more fundamental point of whether the sums recovered by the debt collection agencies represented payment for any service supplied by Esporta. The Tribunal commented that "the simple fact is that access to the gym is denied, and no payment means that there is no service". Although the membership was not terminated, there were no benefits to membership without access to the gym. The link between payment and supply was therefore broken. Recovered payments were therefore, not taxable consideration, but "compensatory in nature" and hence outside the scope of VAT.

In principle, this decision should not only apply to gyms offering contracts on identical terms to Esporta's but to any business offering membership, subscriptions or similar arrangements in return for monthly payments, especially if the benefits of membership are denied while payments are in arrears.

HMRC may still appeal this decision, but if your business or client offers memberships or subscriptions, pursues outstanding payments where members are in breach of the contract terms and does currently account for VAT on these payments, the possibility of making a retrospective claim (for up to four years) to HMRC should be considered. It may also be appropriate to review membership and admission procedures, and terms and conditions going forward in the light of the Tribunal's findings.

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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Richard Mannion
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