UK: Weekly Tax Update - Monday 14 November 2011

Last Updated: 17 November 2011
Article by Richard Mannion


1.1. Time To Pay update

HMRC has published the following Issue Briefing:

"HMRC helps individuals and businesses with short-term financial difficulties by offering them 'Time to Pay' arrangements, provided that they meet certain criteria. We have no desire to make things more difficult for taxpayers, so our Time to Pay arrangements can spread payments during difficult times, which both helps the individual or business, and ultimately protects our tax revenues.

We have always offered Time to Pay arrangements and that is not changing; we are here to help. This briefing provides background and useful information about how Time to Pay works and how people can find out more about it.

Who is Time to Pay aimed at?

Any taxpayer facing difficulty in making a tax payment is potentially eligible to apply for Time to Pay. But the vast majority of Time to Pay arrangements are for businesses, including individual taxpayers who are self-employed.

Individuals who have received an overpayment of tax credits and are unable to make the repayment because of financial difficulties are also eligible to apply.

How Time to Pay works

Businesses, including self-employed individuals, can apply for Time to Pay using our Business Payment Support Service. The sooner people contact us the better. Doing so makes it easier for us to help them, so we urge anyone who is in difficulty to contact us before their tax becomes overdue, and not to wait for us to contact them afterwards.

We look at every case carefully, because we realise that all of them have a unique set of circumstances that have to be taken into account when making a decision. There are some simple conditions that need to be met. The first is that we have to be satisfied that an applicant is genuinely unable to pay their tax on time. We also need to be sure that they can keep up with the payments they are offering to make and are able to pay other tax bills as they arise. For example, if a business wants a Time to Pay arrangement for last month's tax bill, we expect it to be able to pay the following month's bill when it becomes due.

Because we are legally obliged to get the best deal for the country on any payments owed, we have to also make sure any outstanding tax is paid off as quickly as possible.

How we have helped.

By the end of June 2011 the Business Payment Support Service has made about 444,400 Time to Pay arrangements since its launch, involving £7.71 billion of tax of which £6.69 billion had been received by that point.

What we can and cannot do.

Apart from agreeing the arrangement itself, we also remove any surcharges or penalties that would otherwise have arisen. But we can only do so where Time to Pay is agreed before any surcharges or penalties become due. This is another important reason for contacting us early. We do, however, charge interest on any outstanding payments.

We want to be flexible in helping individuals and businesses pay what they owe, but we also need to be sure they can keep to these arrangements once they are made. Time to Pay is meant to be a temporary bridge for businesses and individuals to help them through a difficult time, so we only approve Time to Pay arrangements for individuals or businesses in short-term financial difficulty.

Of the 444,400 arrangements agreed through the Business Payment Support Service between December 2008 and June 2011, 360,000 were for less than six months, with an average value of £17,365.

We are unable to agree arrangements solely to stop a business from going bankrupt, where we are the major creditor and the business relies on not paying its tax to stay afloat. Nor can we agree these arrangements only to protect jobs or protect a particular activity or industry, since this would involve HMRC intervening in industrial, competition or economic policy, which is outside the scope of our authority.

Have we tightened up on arrangements recently?

There have been recent press reports that we have "tightened up" on Time to Pay. This is not the case. We are applying exactly the same criteria as we have always done and well over 80% of applications are still being approved. However, there has been an increase in the proportion of applications which do not meet the criteria set out earlier. These are often businesses which have had a succession of Time to Pay arrangements or which have failed to keep up the terms of previous arrangements. Where this has happened we have to explore whether they are in genuine short-term difficulties or have in fact become unviable and we have to act to protect the general taxpayer. The table below gives the picture: taxpayer.

















*Calendar year to end at the end of August.

To find out more.

If you would like to know more about Time to Pay, please visit our website at or contact HMRC's Payment Support Service on 0845 302 1435. This service is available for individuals and businesses who have not yet received a payment demand.

If an individual or business has already received a demand or letter about tax that is already overdue, they should contact the HMRC office that issued it immediately. The contact details are on the correspondence or demand.

1.2. CAP 1 Contacting HMRC with a non-business query

HMRC has issued CAP1 which replaces Code of Practice 10 (COP 10) and VAT Notice 700/6: VAT Rulings.

This document is only for non-business customers or customers who are contacting HMRC with non-business queries about HMRC's interpretation of recent tax legislation, and advisors acting on their behalf, and tells you about the service offered by HMRC to these customers.

HMRC's interpretation of recent tax legislation

When HMRC will give a response under this service

If you are a non-business customer or have a query which is not about a business activity and you:

  • cannot find the information you need about the tax treatment of a specific transaction(s) or issue(s) from HMRC's online guidance or helplines, or;
  • are uncertain about HMRC's interpretation of recent tax legislation as it applies to a specific transaction(s) or issue(s).
  • You must have fully considered the relevant guidance and/ or contact the relevant helpline.
  • You can ask about a transaction:
  • you have already undertaken or;
  • one that you plan to undertake.

HMRC will tell you how they interpret recently passed tax legislation.

HMRC generally interpret recently passed tax legislation to mean legislation passed in the last four years. However they will give a view on legislation older than this where the subject or circumstances of your query are not covered in their published guidance and you have uncertainty about the right tax treatment.

When HMRC will not give a response under this service

If your query is about a matter other than the interpretation of recent tax legislation HMRC may still provide a suitable response, such as pointing you to the relevant online guidance.

If you ask for a view and HMRC do not provide it, they will tell you why.

Listed below are some of the reasons why HMRC might not give advice under this service:

  • You have not provided the necessary information - in which case HMRC will tell you what information they need.
  • HMRC do not think that there are genuine points of uncertainty - they will explain why they think this and direct you to the relevant online guidance.
  • You are asking about a future transaction unless HMRC is reasonably satisfied that the transaction, as described, will indeed take place.
  • You are asking HMRC to give tax planning advice, or to "approve" tax planning products or arrangements.
  • Your application is about the treatment of transactions which, in HMRC's view, are for the purposes of avoiding tax.
  • HMRC are checking your tax for the period in question. You will need to contact the officer dealing with the check.
  • The time limit for HMRC to notify you of their intention to begin an enquiry into the Self Assessment return, to which the transaction you are enquiring about relates, has passed.
  • What information you need to provide.

What information you need to provide

When you write to HMRC you should use the checklist (link below) to help you decide what information is relevant to your application. HMRC ask for this information to ensure that they understand the background to your question and where your uncertainty lies. This helps them to process your application quickly. HMRC does not expect that all of the information on the checklist will be available and relevant for every CAP 1 application. HMRC ask for details of the guidance you have looked at as this helps them to identify where there may be gaps and, if there are, helps HMRC to fix things for the future.

Please head your letter - CAP 1: Service for non-business customers (this helps HMRC to identify your application and deal with it more quickly).

When you write to HMRC you must be satisfied that the information you give is, to the best of your knowledge and belief, accurate and correct.

When you can rely on information or advice provided by HMRC

Provided this is the case, and you carry out the proposed transactions exactly as you describe them, you will generally be able to rely on HMRC's response. For more information, see the link below.

Where should you send your application?

There is no single point of contact to which applications can be sent given the very wide range of tax regimes covered by this service and the number of applications received.

If you have an existing point of contact within HMRC, for example a Customer Manager or your local tax office, or are already in contact with HMRC on the subject of your query you should address your application to the contact address with which you have been provided.

In all other cases, you can find contact details and postal addresses for specialist departments or any other part of HMRC (see the link below).

When HMRC will reply

HMRC will usually reply within 30 days. Where difficult or complicated issues are involved it may take them longer to reply. If this is the case, HMRC will acknowledge your request and tell you when you can expect a full reply.

Sometimes HMRC may need to ask you to provide more information before they can send you a full reply. If so, they will suspend the handling time for your application until you are able to provide them with the information they have requested. HMRC may wish to contact you by telephone for clarification and it helps them if you can provide a contact number.

How HMRC's advice affects interest and penalties

HMRC's advice does not affect the date by which you have to pay your tax and you should continue to pay your tax and send HMRC any returns on time. You may have to pay interest and late payment penalties on any tax that you pay late, for whatever reason.

If you have asked for advice after a transaction has taken place, but not received the advice by the time your return is due to be submitted, then you should still send your completed return in on time. When you receive HMRC's advice you can, if necessary, amend your tax return or make a disclosure as long as you are within the normal time limits to do so. If you send HMRC your return on time you will not be liable to penalties for failing to make a return.

If you disagree with HMRC's view of your transaction and complete your return in accordance with your own view of the proper tax treatment, then you may not have paid the right amount of tax at the right time. In such circumstances, if your return contains a careless or deliberate error which results in a loss of tax or an inflated claim to repayment of tax, then you will be liable to penalties.

What you can do if you disagree

HMRC aim to give you a clear reply to your questions; they recognise that sometimes you may not agree with what they say or you may not be happy with the service they have provided.

  • If you disagree with any advice you receive from HMRC, you may complete your return in accordance with your own view of the proper tax treatment, but you should take care to draw HMRC's attention to the particular entry in your return and explain what you have done. You should expect them to take follow-up action on the basis of their interpretation of the law.
  • If you believe that HMRC have failed to take account of some of the material facts set out in your request, please contact the officer who dealt with your application (their details will be on the letter HMRC sent you), explain what facts you feel were overlooked and ask them to look at your request again. If you remain unhappy you can ask for the request to be referred to another officer.
  • If you are unhappy with the way HMRC have handled your affairs, please tell the person or office you have been dealing with. If they are unable to sort things out, ask for your case to be referred to the complaints manager. For more information, see the link below.


There is no general right of appeal against advice given by HMRC except where rights to appeal are set out in statute. Rather, appeal rights are usually against decisions HMRC take, such as issuing an assessment for underpaid tax or a penalty

However, some VAT related decisions are classed as 'appealable decisions' by statute. The letter HMRC send you will explain whether you are able to appeal and tell you what to do if you disagree with a VAT decision.


2.1. Increasing the limit for coding underpayments to £3,000

HMRC has sent us the following note:

"You will already be aware that the Exchequer Secretary gave his consent to raising the coding out limit of tax owed from below £2,000 to £3,000. The new Regulations took effect from 20 July 2011 allowing HMRC to collect up to £3000 of tax owed through the PAYE tax code.

The revised underpayment coding out limit applies to non-SA underpayments from 2010-11 onwards. So for example, a 2010-11 informal tax calculation (P800) issued after October 2011 showing an underpayment of less than £3000 will automatically be included in the 2012-13 tax code (subject to there being sufficient PAYE income from a continuing employment/UK based pension).

However, because the necessary changes to legislation did not come into effect until July 2011, the 2010-11 Self Assessment Returns could not be amended to reflect the increase before they were issued because the resulting changes to our automatic Self Assessment processes were still being worked through. This means that the current coding out limit of £2,000 will remain in place for the 2010-11 Self Assessment Return.

HMRC does recognise however that some Self Assessment customers with balancing payments between £2,000 and £3,000 might like to take advantage of the increased coding out limit and have it reflected in their 2012-13 tax code. Agents with clients in this position should contact HMRC through their dedicated telephone number by 30 December 2011 to discuss whether a balancing payment can be coded out in this way.

There will not be the option to request retrospective coding out in those cases where customers have already paid or agreed a repayment plan to settle outstanding tax."


3.1. Upper Tribunal decision: HMRC v exec of Atkinson deceased

The Upper Tribunal has allowed HMRC's appeal against the First Tier Tribunal decision (TC00420).

The case concerned Inheritance Tax and Agricultural Property Relief where a farm, owned by deceased, was let to the family farming partnership. The deceased, as a partner, lived in a bungalow on the farm until ill– health required him to move to a care home during which time the deceased made occasional visits to bungalow and his possessions remained in it until his death. The question was whether throughout the seven year period ending with his death the bungalow was occupied by the deceased or another for the purposes of agriculture, IHTA 1984 s117(b).

The First Tier Tribunal had found that:

Throughout the period of the partnership the entire holding, the bungalow included, was occupied for the purposes of the partnership's farming activities. The residential buildings, i.e. Abbotson's Farmhouse and the bungalow were used by the partnership to accommodate the partners. For twenty-two years from the time the bungalow was built it housed Mr Atkinson. For the last four years of Mr Atkinson's life the impact of his illness reduced the likelihood of Mr Atkinson being able to return and live in the bungalow until it appears to have become necessary for him to stay permanently in the care home. But he continued to participate in partnership matters and his possessions remained in the bungalow; and from time to time he visited the bungalow. The partners chose to notify the local council that the bungalow was not lived in. Otherwise they did nothing with the bungalow to alter the state of affairs that had subsisted throughout the partnership.

Occupation by the partnership continued until Mr Atkinson's death; it was occupation for the purposes of agriculture in the relevant sense because the bungalow was still used to accommodate the diminishing needs of the senior partner.

The present circumstances are broadly the reverse of those that existed in the appeal of Harrold v Inland Revenue Commissioners [1996] STC (SCD) 195......Here by contrast the bungalow has been occupied by the partnership and has been used to provide accommodation for one of the partners; and nothing was done during Mr Atkinson's life to terminate that occupation.

In the judgment of the Upper Tribunal, the First Tier Tribunal had failed to apply the correct approach and to ask the correct questions. The correct approach was to identify what does and what does not amount to a sufficient connection between the use and occupation of the property in question (the Bungalow) and the agricultural activities being carried on the agricultural property (the Farm); and to ask whether the facts give rise to a sufficient connection.

The Upper Tribunal found that if the First Tier Tribunal had adopted that approach it could, in its judgment, have come to only one conclusion, namely that the Bungalow was not immediately before Mr Atkinson's death, occupied for the purposes of agriculture and had not been so occupied since the time when it had become apparent that he would never be able to return to live there. In particular, neither the occasional attendance of the other partners at the Bungalow to deal with post or frost, nor the fact that some of Mr Atkinson's belongings and furniture remained at the Bungalow, can be said to constitute occupation for the purposes of agriculture throughout the seven years prior to Mr Atkinson's death.


4.1. Upper Tribunal decision in Weight Watchers (PAYE regulation 80)

The Upper Tribunal has upheld the First Tier Tribunal's decision in the Weight Watchers (UK) Ltd appeal against PAYE regulation 80 assessments in respect of remuneration paid by Weight Watchers to its leaders who ran their programmes. The appeal was rejected, both on the main issue of whether the remuneration of the leaders was from employment, and the time issue (whether the April 2001-2003 assessments were out of time).

The Tribunal judge gave his own reasoning for rejecting the taxpayer's claim that certain determinations were issued out of time. Regulation 80 of the PAYE regulations permits HMRC to issue a determination as though it was an assessment under part 4 of TMA, with the relevant sections being s29 and 34. Those sections of TMA provided (at the relevant time) that there was a six year time limit to raise such an assessment (changed now to four years after the end of the year of assessment to which it relates). However there are qualifying conditions so that HMRC is not entitled to raise the assessment unless the underpayment of tax was brought about carelessly or deliberately, or HMRC could not reasonably have been expected to be aware of the underassessment from the information supplied.

The Tribunal judge concluded that the qualifying subsections of TMA s29 (ss4 and 5) were only imposed in relation to self assessment returns. If they were to be read into the application of Regulation 80 for PAYE, this would mean reading in a requirement that the employer's PAYE return should be deemed to be a selfassessment tax return for the purposes of Part IV of the TMA. The judge concluded that SI2003/2682 Reg 80(5) was carefully worded so as to treat a determination as an assessment only, and not to treat the employer's PAYE return as if it were a self assessment return.


5.1. Updates to HMRC Insolvency manuals: bona vacantia and indirect taxes

HMRC has updated the Indirect Taxes section of its insolvency manual to include amendments to pages INS12104, 12302, 12601 and a new page on Bona Vacantia cases INS12366.

5.2. Extension to film tax relief

On 10 November the Prime Minister announced an extension to the existing film tax relief until the end of December 2015.

The relief is aimed directly at film production companies for the expenses they incur on the production of a film intended for theatrical release in commercial cinemas. For a film to be eligible for relief, it must be certified as British, either by passing a cultural test or under an agreed co-production treaty, and must incur at least 25% of the total production expenditure in the UK.

Relief can only be claimed on production expenditure in the UK, up to a maximum of 80% of the total budget, and a higher rate of relief is available for limited-budget films (with total production expenditure of £20m or less). Companies not making a profit may be able to surrender the relief for a payable tax credit worth up to 20% of the total budget for a limited-budget film and up to 16% for other films. A higher value of support may be achieved if the relief is used to reduce company tax liabilities.

Certification of films is currently administered by the British Film Institute on behalf of the Department for Culture Media and Sport.

5.3. EIS subscriptions and when employed in the business

The Upper Tribunal has rejected the appeal of Mr Richards and Skye Inns Ltd on whether subscription moneys were employed in the business as required by TCGA Sch5B para 1(2)(g). In summary Mr Richard had subscribed approximately £1.5m in Skye Inns Ltd with the aim of deferring a capital gain of £614,000. Initial negotiations to buy a new pub were progressing within the required EIS timescale for use of the funds (at the time 80% had to be used in the business within one year and 100% within two years of the share issue), but they stalled at the last minute. Mr Richards claimed they were used in Skye Inn's existing business of operating two pubs, though £1.2m remained on deposit at the end of two years.

The First Tier Tribunal's decision was covered in Tax Update of 18 January 2010. They concluded "the only realistic approach is to treat funds raised in the share issue as having been "employed in the business" only when actually spent on realistic net increases to the net trading assets or when reserved to supplement the current receipts of the trade, either in funding losses or meeting expenses that can be ranked as "current business requirements". They concluded that the facts of this case demonstrated that neither the 80% in 12 months or 100% in 24 months requirements for use of funds in the business had been met.

The judge at the Upper Tribunal added that the funds were kept in a separate bank account (a deposit account) and could not be amalgamated with the business's main business account (its current account where all the business expenditure and income was dealt with) to say the funds were 'used in the business'. Without investigating further the use of the funds, the judge also agreed with the First Tier Tribunal's conclusion that it was questionable whether the funds were 100% used in the business by the end of the two year period.

5.4. Tackling double taxation for a stronger single market

The EC issued the following press release on 11 November:

Double taxation, and double non-taxation, contradict the very spirit of the Single Market. Yet many citizens and businesses are still suffering heavier tax burdens just because they operate in more than one Member State. Meanwhile, others are using loopholes between national systems to escape paying taxes that they owe. Determined to tackle this problem, the Commission today adopted a Communication on Double Taxation. This Communication highlights where the main double taxation problems lie within the EU, and outlines concrete measures that the Commission will take to address them. In doing so, the Commission seeks to remove real obstacles to a more competitive economy and make the EU easier to invest and do business in.

Algirdas `emeta, Commissioner for Taxation, Customs, Anti-Fraud and Audit, said: "We must be able to send the message to all citizens, businesses and trading partners: the EU does not tax twice! Double taxation is one of the biggest tax obstacles to the Internal Market, and can no longer be overlooked. Today I have presented clear and feasible ways to tackle double taxation, which will make the EU a more attractive place to live and work in."

A public consultation carried out by the Commission found that more than 20% of reported cases of double taxation of businesses were worth over €1 million, while for individuals, more than 35% of double taxation cases were worth more than €100 000.


Currently under EU law, there is nothing to oblige Member States to prevent non-discriminatory double taxation. Although Member States try to relieve double taxation through measures such as bilateral and multilateral double taxation conventions, these do not provide adequate protection for citizens and businesses due to various shortcomings (e.g. too narrow scope, lack of uniformity amongst Member States' provisions, administrative burdens, long time-lines for dispute resolution etc.). The 2010 Citizenship report highlights the inadequacy of existing mechanisms to avoid double taxation in the EU. The problem of double taxation therefore continues to create barriers to cross-border establishment, activity and investment in the EU.

Clearly, given its cross-border nature, further action at EU-level is needed to fully and effectively address this problem. Over the past year, the Commission has already made headway in tackling double taxation in specific areas e.g. the proposal for a Common Consolidated Corporate Tax Base. Today's Communication launches the next phase of work to try to bring an end to the problem of double taxation, for the benefit of both citizens and businesses across Europe.

Next steps

As an immediate first step to strengthen existing legislation against double taxation, the Commission also adopted today a simultaneous proposal to improve the Interest and Royalties Directive. This aims to reduce

the instances of one Member State levying a withholding tax on a payment, while another Member State taxes the same payment. Other areas in which the Commission intends to propose specific solutions to double taxation problems include cross-border inheritance tax in the near future and dividends paid to portfolio investors later on.

The Commission will also work on other possibilities to help eliminate cross-border double taxation, such as creating an EU Forum to develop a code of conduct on double taxation and a binding dispute resolution procedure for unresolved double taxation cases.

With regard to double non-taxation, which causes considerable losses to public revenues, the Commission will launch a consultation to gauge the full scale of the problem. On the basis of this consultation, it will determine the most appropriate and effective measures to prevent double non-taxation and come forward with solutions next year.

The Commission will submit the Communication on Double Taxation to the European Parliament, Council and European Economic and Social Committee for discussion and the Interest and Royalty Directive proposal to Council and the European Parliament.

6. VAT

6.1. Low value consignment stock

The value below which low value goods imported from the Channel Islands do not attract VAT was reduced from £18 to £15 with effect from 1 November 2011 in s77 Finance Act 2011. It has been announced that the £15 exemption for low value consignment stock will disappear with effect from 1 April 2012.

6.2. Retail distribution review (RDR)

As part of the Government's review of RDR affecting the financial service industry it published on 5 November the following comment on the 16 July report of the Treasury Select Committee:

"The evidence we have received suggests that there is some confusion on both when VAT will be payable, and how much it will raise. We recommend that HMRC, in conjunction with the FSA if necessary, report to us as soon as possible with clear guidance on when VAT will be payable for financial advice under the RDR, why it has not been payable in the past, along with any expected additional revenues from the change, and whether further reform of VAT rules in the area will be needed. The FSA should report to us on whether this imposition of VAT will have an impact on the provision of advice, and whether an unfair tax advantage between different advice models will result from the move to the RDR. (Paragraph 58)"

6.3. Whether Lucozade Sport products qualified for zero rating or were excluded

The Upper Tribunal has confirmed the decision of the First Tier Tribunal that Lucozade products did not come within the zero rating provisions of VATA Sch8 group 1 (food for human consumption, including drink), as it fell within the exception (other beverages, which included powders), and did not come within one of the items overriding the exception. The Upper Tribunal agreed with the First Tier Tribunal in rejecting Glaxo's contention that the product was a sports nutritional product (which can attract zero rating).

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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Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.