1. General news
1.1. Public Accounts Committee report into HMRC's handling of tax disputes
The Public Account Committee (PAC) has released a hard-hitting report criticising HMRC's handling of tax disputes.
The PAC's conclusions and recommendations are as follows:
1. The Department's refusal to disclose taxpayer information prevents proper scrutiny of the process for reaching tax settlements with large companies. We accept there is a need for confidentiality to protect taxpayers, but this must not be used as a cloak to protect the Department from scrutiny. It is absurd that we have been forced to rely on information in the media to find out about cases that raise concerns, and of course we only know about cases on which information has been published in the media. The Department was not able to point to an absolute statutory bar on disclosure of information about specific cases. Its withholding of information is in fact a policy decision taken by Commissioners. This approach fails to give proper regard to HMRC's duty to assist the Public Accounts Committee in examining whether or not the Department is giving best value for money. There is less justification for keeping tax information about large corporations confidential than information about individuals. The Department must set out in greater detail its policy reasons for not disclosing information about specific corporate taxpayers. It must explain the circumstances in which it would consider disclosure and it must set out how it will fulfill its statutory obligations to account for its actions to Parliament.
2. The evidence of the Department's senior officials fails to give us any confidence in the way large settlements are reached. The Permanent Secretary for Tax and the Department's General Counsel and Solicitor failed to answer our questions about specific cases in a spirit of openness. Some of the evidence they provided about the exact order of events, the extent of the Permanent Secretary for Tax's personal involvement in negotiations and whether legal advice was sought and acted upon was imprecise, inconsistent and potentially misleading. Furthermore, the Permanent Secretary for Tax was less than clear and consistent in the evidence he first gave to the Treasury Select Committee and then to the Public Accounts Committee. Accounting Officers are accountable to this Committee and we expect precise, open and comprehensive answers to our questions. Any failure to do so is a failure to perform a core responsibility and should be treated as such by the Cabinet Secretary.
3. The Department chose to depart from normal governance procedures in several cases, which allowed Commissioners to sign off on settlements that they themselves negotiated. HMRC execute hugely important functions on behalf of the taxpayer and the Government. It is absolutely necessary that the officials responsible for and engaged in this work should have the necessary skills, qualifications and experience to fulfill these vital roles. For four of the largest settlements examined by the Comptroller and Auditor General, the processes applied did not recognise the importance of clear separation between those negotiating and those approving settlements, and we are not convinced of the soundness of decisions made by Commissioners in these cases. The Department has since put in place new governance arrangements that seek to separate the negotiation and authorisation roles. The recent appointment of two new Commissioners widens the pool of Commissioners who have the expertise to make an informed judgment in signing off settlements. However, this does not in itself guarantee there will be effective separation of roles or proper accountability for decisions reached, not least because the two new Commissioners are existing members of the Department's senior team. The Department must ensure that its revised procedures to separate out the roles of those involved in settling tax disputes are applied to all cases without exception. The Department should report back to us, as promised by the Cabinet Secretary, before Christmas.
4. Governance procedures have lacked the independence and transparency needed to provide sufficient assurance to Parliament. Tax settlements with large companies are inevitably complex and involve the exercise of judgment. Parliament needs assurance that these settlements are appropriate and good value for the taxpayer. We welcome the Department's proposals to introduce an independent assessor, or assessors, to sit alongside Commissioners, who would carry out independent review of settlement proposals. Appropriate rules need to be established which will ensure that all settlements over £100m are assessed independently and that a random sample of those over £10m are assessed independency each year. It is important that the new role is demonstrably independent and increases accountability to Parliament, and should be established in statute. For speed, we accept that the role should be set up in shadow form, but it should be formalised in legislation as quickly as possible. Independent assessors should report annually to Parliament on their work, perhaps in a statement contained in the Department's annual report and accounts. This should include aggregate information on the cases in which they were involved and a report on any settlements where they have identified concerns.
5. The Department's failure to comply with its own processes resulted in a substantial amount of money being lost to the Exchequer. In one case, a mistake was not picked up until too late because the Department failed to follow its own governance procedures. The C&AG told us that this resulted in a loss of up to £8 million in interest forgone. We have since received evidence from a whistleblower that the total value of interest payable in respect of this particular settlement could be as high as £20 million. When the error was eventually picked up, the Department decided it would not reopen negotiations. We are astonished that in this case the decision to settle was taken without legal advice and that the Department did not even take the most basic step of making its own note of meetings with the company concerned, relying instead on the record kept by the company. The Department must ensure that it has applied all relevant governance checks to each settlement before finalising them with taxpayers. It must also consult legal advisors before settling cases in litigation and make sure it keeps its own accurate and complete records of key meetings with companies. We remain concerned that the decision was taken not to reopen this case when the 'mistake' was uncovered, and we were not given good reasons for HMRC not reopening this case.
6. Those at the top of the Department have not taken personal responsibility for serious errors. The failure to apply proper governance processes is the latest in a series of errors made by the Department in recent years, including the debacle over PAYE and tax credits. There appears to be little or no sense of personal accountability when things go wrong. It is right that an individual was held accountable for his role in the mistake that led to the loss of interest on a tax liability, but there also needs to be stringent accountability at the top of the Department for designing and operating a system in which such mistakes could occur. We expect leaders to take responsibility for both systemic issues and for specific mistakes, for which they are accountable.
7. The Department has left itself open to suspicion that its relationships with large companies are too cosy. The Permanent Secretary for Tax attended a significant number of informal meetings over lunch and dinner with large companies with whom HMRC was settling complex tax disputes, when formal HMRC minutes were not necessarily taken. We were told this was part of the Department's overall approach to relationship management. We accept that senior tax officials need to be accessible to major stakeholders and we welcome the fact that details of hospitality are published, but this information is only meaningful if supported by transparency about the Permanent Secretary for Tax's involvement in settling disputes with these companies. It appears that when deciding whether or not to accept hospitality, not enough attention was paid to the risk that a conflict of interest might be perceived. The Department must exercise better judgment over how it manages its relationships with large companies, to ensure it avoids the perception of conflicts of interest.
8. The Department is not being even handed in its treatment of taxpayers. It is unfair that large companies can settle their tax disputes with the advice of professionals at less than the full amount due and that they have been allowed up to 10 years to pay their tax liabilities, while small businesses and individuals on tax credits are not allowed similar leeway. The Department has promised to look into the treatment of these groups of taxpayers in terms of its fairness and reasonableness. It should report back to us on any actions taken to address the wider policy or process issues identified as a result of its examination.
HMRC subsequently published the following response:
"HMRC rejects the conclusion of the Public Accounts Committee that there are systemic failures in the management of tax disputes. The report is based on partial information, inaccurate opinion and some misunderstanding of facts.
HMRC's internal processes are robust and this was confirmed by a recent review by the National Audit Office of large business settlements. We agree that public confidence in our processes is important, and as we have already informed the Public Accounts Committee we propose to make further improvements to our governance and to increase transparency about our work with large business. We also welcome the further review that the National Audit Office is to carry out as an opportunity to confirm this and clear up the concerns about foregone millions."
In response to the specific criticisms, HMRC's spokesman said:
"1. "specific and systemic failures"
"We acknowledge that a mistake was made in one settlement and explained how this arose. We reject the suggestion that this is evidence of systemic failure. This assertion, based on untested, leaked information, is without foundation. "
2. "more than £25 billion outstanding in unresolved tax bills"
"We explained to the Committee and again in a letter to the Committee Chair in November that this figure is a ballpark estimate of maximum potential tax liabilities, before a full investigation of the specific facts has taken place, and before applying any reliefs or allowances. It is not actual tax either owed or unpaid. In many cases, when HMRC has looked at the full facts it becomes clear that there is no further liability at all. Tax under consideration is an administrative tool to help us to focus our resources on cases where potential tax liabilities appear to be greatest. It is not tax owed."
3. "many millions of pounds may be lost to the public purse"
HMRC's job is to bring in the tax that's owed and that's what we're doing. We collected a record £468 billion in taxes last year, including more than £13 billion extra from our compliance work. We drew the NAO's attention to an error in a single case which they then estimated to be between £5 and £8 million.
4. "a mistake led to a potential £20 million of interest on a tax liability not being collected"
We do not agree this figure. We drew the attention of the Comptroller and Auditor General to an error, which he then estimated as between £5 million and £8 million.
5. "it is extremely disappointing that senior HMRC officials were not prepared to cooperate with our inquiry in a spirit of openness. We accept that there is a need for confidentiality to protect individual taxpayers, but this must not be used as a cloak to protect the Department from scrutiny...It is absurd that we had to rely on the media and the actions of a whistleblower to find out about the details of individual settlements."
Senior HMRC officials sought to be co-operative by providing as much information as possible within the legal constraints of taxpayer confidentiality under which they work. Taxpayer confidentiality is a legal requirement, fundamental to tax administration in the UK and across the world. Parliamentary scrutiny is delivered via the NAO to whom HMRC provide unfettered access to all their papers."
6. "Parliament and the public have legitimate concerns that large companies are being treated more favourably than ordinary taxpayers... "
HMRC treats all taxpayers even-handedly, supporting the majority who comply with their duty to pay their taxes, and cracking down hard on evaders, avoiders and fraudsters.
It is wrong to suggest that HMRC officials are too lenient on large businesses.
Large businesses pay around 60 per cent of total UK tax receipts, and account for more than half of the £13.9 billion additional compliance revenues that we brought in last year.
Large business tax settlements are a vital part of how HMRC secures tax revenues for the country and without them Britain's public finances would be seriously damaged. HMRC's large business strategy is now being adopted by other tax administrations around the world.
7. "in several cases, HMRC chose to depart from its normal governance procedures. It is extraordinary that the same officials who negotiated deals also approved them."
We have already informed the Committee of the action we have taken to ensure that in any case where an HMRC Commissioner has been involved in negotiations, the settlement decision is made under a 'dual key' approach by two different Commissioners. We have also written to the Committee with proposals to further strengthen our internal governance. These further changes will be agreed with our new Chief Executive in the New Year."
1.2. HMRC will be accepting Faster Payments
HMRC can now to accept payments made using the banking industry's Faster Payments Service (FPS). This provides for faster electronic payments, typically via internet or telephone banking, enabling them to be processed on the same or next day.
This could reduce the time between monies leaving an account and being received by HMRC. But there could be limitations imposed by the paying bank so before making a payment a check should be made to confirm that the bank or building society:
- has made the service available;
- whether there are any single transaction or daily limits on the amount that can be paid;
- their latest cut off times for making a payment.
When making a payment to HMRC please make sure to always use the correct bank account details and reference number.
You can find further information by following the links below.
www.hmrc.gov.uk/payinghmrc/fps.htm
1.3. Discovery and rebated fees: HMRC v Lansdowne Partners Limited Partnership
This case considered whether rebates of fees to individual partners of Lansdowne Partners Limited Partnership (LPLP) were deductible in computing profits of the partnership, and whether HMRC had raised a discovery assessment within the required time limits.
LPLP is a fund manager managing investments in open ended investment companies (OEICs). Lansdowne Partners International Ltd was appointed as investment manager of the OEICs, but subcontracted management to LPLP. As envisaged in the investment prospectus (though this was not a guaranteed term of investment), LPLP rebated its share of investment management fee income to individual partners based on their investment in the funds under management. When the partnership submitted its partnership statement for the year 2004/05 these rebates were treated as deductible expenditure in computing its taxable profit. On 27 August 2008 HMRC notified the partnership that it had amended the partnership statement for the tax year 2004/05 by adding back an estimate of the payments made to partners when arriving at the partnership profit. The partnership appealed against the amended assessment. HMRC appealed against the General Commissioner's decision that the rebates were tax deductible and that HMRC was out of time in making the assessment.
The High Court (Mr Justice Lewison) determined that as the rebate was not a contractual term of investment, there was a duality of purpose to the rebate (while LPLP was due investment management fees for services supplied to the funds, it made rebates at its discretion to the partners), so they were not wholly and exclusively incurred for the purpose of the trade.
However in relation to discovery, the High Court upheld the General Commissioners' decision. Justice Lewison commented in respect of the Langham v Veltema case that:
- "Awareness" is the officer's awareness of an actual insufficiency in the self-assessment in question, rather than an awareness that he should do something to check whether there is an insufficiency;
- the test whether an officer could reasonably have been expected to be aware of an actual insufficiency is an objective test;
- the sources of information referred to in section 29 (6) TMA1970 are the only sources of information to be taken into account in deciding whether an officer ought reasonably to have been aware of the actual insufficiency;
- the information in question must clearly alert the officer to the insufficiency of the assessment.
In relation to this case he commented that the actual insufficiency was an insufficiency in respect of a particular period. In his judgment, that information provided by or on behalf of the representative partner must clearly alert HMRC to an insufficiency in the partnership return for a particular period.
In relation to the source of information, he commented that the statute requires that the representative partner should notify HMRC in writing of both the existence of the information and also its relevance to the "situation mentioned in subsection (1)". In other words the information must clearly alert HMRC to the relevance of the information to the insufficiency in the year in question. However, he did not consider that the statute requires that the existence of the information and its relevance must be contained in the same written communication. He thought it would be sufficient if one communication notified the officer of the existence of the information and another notified the officer of its relevance.
On that basis he agreed with the General Commissioners that on 31 January 2007, on the basis of the information notified to HMRC in writing by or on behalf of the representative partner before 31 January 2007, HMRC should have been aware of an insufficiency in the partnership return for the year of assessment 2004/2005.
In this particular case there had been a meeting in February 2006 and correspondence in March 2006 between the representative partner and an HMRC employment compliance officer where the rebates had been mentioned and the officer asked for the partners' personal tax office details. Justice Lewison considered that the General Commissioners were entitled to place weight on the fact that the HMRC officer had written with reference to the rebates and that he would pass the information on to the officers dealing with the partners and that it would be for those officers to raise further enquiries if they wished to.
He therefore concluded that since the discovery assessment was out of time, even though the rebated fees were incorrectly treated as a deduction, HMRC's appeal must be dismissed.
HMRC appealed the out of time point and Lansdowne cross-appealed on whether the rebated fees should be taxable, and if they were whether the payment to the partners should be deductible.
The Court of Appeal (CA) has now heard the appeals and given its judgement. Lord Justice Moses summarised the questions for decision as follows:
- whether the sums, described as 'rebates', were correctly excluded from LPLP's statement of income or profits?
- if not, whether they were deductible from those profits?
- if not, whether the Revenue was entitled to amend LPLP's partnership tax return?
The view of the CA was that "There can be no warrant for treating LPLP as a legal entity separate from its partners". The rebates to the partners were not applied wholly and exclusively for the purposes of the partnership's trade and should not have been deducted from the partnership profits.
That left the third question to be decided.
The success of the HMRC's appeal as to whether the discovery assessment in May 2008 was out of time rested on whether, in January 2007, a hypothetical inspector having before him the partnership return and statement, the letter from the representative partner to the inspector dated 30 March 2006 and the note of the meeting held on 22 February 2006 would have been aware of "an actual insufficiency" in the declared profit. The CA answered that in the affirmative taking account of the following:
- The income of LPLP consisted of management and performance fees.
- There had been deducted from that income what was described as 'rebates'.
- 'Rebates' had been paid to limited partners.
- Mackinlay v Arthur Young McLelland Moores [1990] 2 AC 239 had established that all payments to partners should be included in gross income and were not, generally, deductible for tax purposes.
- There was no indication on the face of the accounts or in the letter to suggest any special treatment of 'rebates' paid to limited partners either by omission from the gross income or in their deduction therefrom.
The point was that the hypothetical inspector is not required to resolve points of law, nor need he forecast and discount what the response of the taxpayer may be. It is enough that the information made available to him justifies the amendment to the tax return he then seeks to make. Any disputes of fact or law can then be resolved by the usual processes.
HMRC had contended that mere awareness of the fact that rebates had been deducted is not the same as awareness that the amount of profits stated were insufficient. Lord Justice Moses objected to that argument on the basis that the letter to the employment compliance officer containing information, on the basis of which an officer ought to have been aware that the rebates had been excluded or deducted from the profits, arrived more than 10 months before the expiry of the time limited for opening an enquiry. That was more than sufficient time to obtain further information as to the taxpayers' justification for exclusion or deduction and to form a legal view as to the lawfulness of exclusion or deduction.
Lord Justice Moses expressed "polite disapproval" of the way the legislation was interpreted in the cases of Corbally-Stauntom and Patullo:
"I also wish to express polite disapproval of any judicial paraphrase of the wording of the condition at Section 30B(6) or Section 29(5). I think there is a danger in substituting wording appropriate to standards of proof for the statutory condition. The statutory condition turns on the situation of which the officer could reasonably have been expected to be aware. Awareness is a matter of perception and of understanding, not of conclusion. I wish, therefore, to express doubt as to the approach of the Special Commissioner in Corbally- Stourton v Revenue and Customs Comrs [2008] STC (SCD) 907 and of the Outer House in R (on the application of Patullo) v Revenue and Customs Commissioners [2010] STC 107, namely, that to be aware of a situation is the same as concluding that it is more probable than not. The statutory context of the condition is the grant of a power to raise an assessment. In that context, the question is whether the taxpayer has provided sufficient information to an officer, with such understanding as he might reasonably be expected to have, to justify the exercise of the power to raise the assessment to make good the insufficiency".
www.bailii.org/ew/cases/EWHC/Ch/2010/2582.html
www.bailii.org/ew/cases/EWCA/Civ/2011/1578.html
2. Private Clients
2.1. Life assurance bonds: TC01627 - Martin Hedley Rogers
The Appellant invested in an offshore life assurance bond which was subdivided into 20 individual policies or "segments". Generally it is possible to withdraw up to 5% of the original sum invested each year without triggering a tax liability under the "chargeable events" provisions, but the Appellant's circumstances changed and he withdrew far more than that during the relevant year. HMRC therefore sought to make him liable for income tax on the excess, on the basis that he had effected partial surrenders of all 20 of the segments in the bond.
The Appellant disputed his liability, arguing that in fact he had totally surrendered a number of segments, and partially surrendered just one segment.
When instructing the life assurance company, to withdraw funds from the bond, no reference was made as to whether it should have been a partial surrender across all the policies or a number of full surrenders with a possible partial surrender of one policy. The life assurance company's paperwork and administration left a lot to be desired and did not appear to make any distinction between the policies treating the investments within the bond wrapper as a single entity. In addition, the policy documentation referred to being able to make partial surrenders by either method but did not specify which would take precedence.
The FTT found that the contractual documents were not sufficiently clear and that the evidence of what actually took place was insufficient to enable any conclusion to be reached. In the absence of finding the answer from these considerations the FTT referred to the general legal principle of "equality is equity" and that the source of the monies should be treated as have come equally across all the policies, ie by way of a series of partial surrenders.
The partial surrender treatment gives rise to a greater tax charge and in dismissing the appeal the FTT echoed the comments of Judge Nowlan in Shanthiratnam about the "frankly ludicrous" nature of the resulting tax liability and provide a useful note that "when parties are advised to invest in complex financial products for tax planning purposes, the outcome illustrates all too clearly the fact that full advice needs to be given as to all the implications of that decision and where any associated traps and pitfalls may lie."
www.financeandtaxtribunals.gov.uk/judgmentfiles/j6000/TC01627.pdf
2.2. Liechtenstein Tax Agreement
A number of improvements to the Memorandum of Understanding have been agreed between the Liechtenstein Government and HMRC regarding the Liechtenstein Disclosure Facility (LDF):
The New "Confirmation of Relevance" to Simplify the LDF Registration Process
One of the conditions for using the LDF in order to disclose unpaid tax is that you must already own or acquire qualifying assets in Liechtenstein, but from 1 December 2011, UK taxpayers will need to provide HMRC with a simple Confirmation of Relevance (COR) to register.
The COR will be issued by the Liechtenstein financial intermediary as proof their UK clients has acquired a qualifying asset or established a connection with Liechtenstein's financial centre. This will streamline the registration process, providing certainty as to what is needed.
Deadline for Notifications extended to 31 March 2012
Liechtenstein's financial intermediaries are required to tell their UK clients they must meet their UK tax obligations. HMRC and Liechtenstein have agreed to a three month extension of the notification deadline to 31 March 2012 due to the complex steps in ensuring all UK residents affected are identified and the larger than anticipated number of people likely to receive a letter.
Self-Certification Option to Demonstrate UK Tax Compliance
HMRC and Liechtenstein, working closely with the Trustee and Bankers Associations have agreed a process which will enable some UK residents who are notified under the LDF to self certify in certain circumstances. This will reduce costs and simplify the process but is only available to those investors who can demonstrate they are tax compliant. Further Frequently asked Questions and answers will be published by HMRC to clarify the procedure.
http://nds.coi.gov.uk/content/detail.aspx?NewsAreaId=2&ReleaseID=422589&SubjectId=2
2.3. US reporting requirements: Statement of Foreign Financial Assets
The Internal Revenue Service has released the form 8938, and associated instructions, by which US return filers are to report their non-US financial assets during 2011 under the reporting requirement introduced in March 2010. The details should be noted and taken account of when collating the information for 2011 US returns.
Foreign financial assets generally include the following assets:
- any financial account maintained a by a foreign financial institution, and;
- to the extent held for investment and not held in a financial account, any stock or securities issued by someone that is not a U.S. person, any interest in a foreign entity, and any financial instrument or contract with an issuer or counterparty that is not a US person.
The reporting thresholds requiring filing US taxpayers living outside of the US are:
- single taxpayers/married filing separately: $200,000 on the last day of the year or $300,000 anytime during the year;
- married filing jointly living abroad: $400,000 on the last day of the year or $600,000 at anytime during the year.
The limits requiring filing for taxpayers living within the US are:
- single taxpayers/married filing separately: $50,000 on the last day of the year or $75,000 anytime during the year;
- married filing jointly: $100,000 on the last day of the year or $150,000 at anytime during the year.
www.irs.gov/formspubs/article/0,,id=248113,00.html
2.4. Conditions for raising a discovery assessment – DW Hankinson [2011] EWCA Civ 1566
The Court of Appeal has agreed with the First Tier and Upper Tier Tribunals and rejected the taxpayer's appeal against a discovery assessment.
The Taxpayer appealed on the basis that where a tax return had been submitted in accordance with the Taxes Act, the conditions mentioned in TMA s29(3), (4) and (5) for raising a discovery assessment, were preconditions acting as a safeguard to the apparent random power to raise an assessment 12 months after the submission of the tax return inherent in the self assessment regime.
The Court of Appeal rejected this view, and concluded that if the conditions in s29(4) and s29(5) were to be determined before assessments were raised, this would have been specified in the legislation. They also commented that whether those conditions were satisfied was to be judged as a matter of fact, and that the ability of an officer to raise an assessment depended on the opinion of the officer concerned, and was subject to the requirements of subsections 2 (return submitted on the basis of prevailing practice) and 3 (referring to the conditions in subsections 4 and 5). The Court of Appeal therefore concluded the earlier Tribunals had reached the right conclusions for the right reasons.
www.bailii.org/ew/cases/EWCA/Civ/2011/1566.html
3. IHT & Trusts 3.1. Trust Modernisation Project
HMRC IHT, CGT & Trusts Policy has confirmed to the Chartered Institute of Taxation the long outstanding open consultation point on the possible abolition of the tax pool and introduction of income streaming is effectively over:
"As you are probably aware during 2006 there were signals that tax streaming and abolition of the tax pool were proving difficult to fit within legislation and practice and that the intention was to undertake some further work with a view to tackling these issues at a later date.
We are not aware of any further public announcements regarding this, but we have not been undertaking any such work in recent years."
HMRC's initial proposals were set out in a consultation document issued at the time of the 2003 PBR.
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.
