UK: Weekly Tax Update - Monday 28 May, 2012

Last Updated: 6 June 2012
Article by Smith & Williamson

1. General news

1.1. GAAR

A Parliamentary report has been produced into a general anti-abuse rule (GAAR). It presents a background and summary of the issues discussed and leading to the Government's comment at the 21 March 2012 Budget that it would introduce a GAAR on the lines suggested by the Aaronson study group (see Tax Update 28 November 2011) from 2013.

http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true&_pageLabel= pageLibrary_ConsultationDocuments&propertyType=document&columns=1&id=HMCE_PROD1_032074

1.2. Higher penalties for income tax and capital gains tax involving offshore matters

HMRC has issued a factsheet giving information on the higher penalties applicable to income tax and capital gains tax involving offshore matters. The penalties can be as high as 200% of the tax involved.

www.hmrc.gov.uk/compliance/cc-fs17.pdf

1.3. Working Together Bulletin

Working Together issue 48 has been published.

www.hmrc.gov.uk/agents/working-together-48.pdf

2. Private Clients

2.1. Free-standing credits: Revenue & Customs Commissioners v Cotter [2012] EWCA Civ 81

This case is of importance because HMRC is known to be removing 'free-standing credits' that arise as a result of claims made in returns involving two or more years from Self-assessment Statements of Account, then seeking to enforce the collection of tax that appears to become due as a result of the removal of the 'freestanding credit'.

The 'Cotter' case concerns the correct enquiry procedure that must be applied to claims made in a tax return, where the claim for relief involves two or more years. The correct enquiry procedure has a direct consequence on what amount of tax is collectable, where a 'free-standing credit' is involved.

Schedule 1A or s 9A enquiry?

Where a claim has been made outside of a tax return, and that claim is enquired into, the enquiry falls to be carried out under TMA 1970, Schedule 1A. In those circumstances, HMRC does not have to give any effect to the claim until the enquiry is concluded (Sch 1A, para 4). As such, during an enquiry being carried on under Sch 1A, HMRC is fully entitled to enforce collection of assessed taxes, without having to take account of the tax credit arising from the claim that has been made outside of the tax return.

If, on the other hand, the claim is made in a tax return, any enquiry into the claim contained in the return must be made under s9A. In affecting two or more years, the claim made in the return falls within TMA 1970, Sch 1B. Crucially, paragraph 2(6) of Sch 1B states that 'Effect shall be given to the claim....whether by repayment or set-off, or increase in (payments on account), or otherwise'.

Whilst a return is under enquiry under s9A, HMRC can decide not to make a 'repayment' of tax for that year (relying on TMA 1970, s59B(4)), but it must still 'give effect' to the claim by some other means, in accordance with the mandatory requirements of paragraph 2(6). Consequently, where the claim has been made in a return, HMRC has no legally enforceable power that would enable it to collect tax that arises as a result of ignoring the effect of the 'free-standing credit', whilst a s9A enquiry is ongoing.

If HMRC wishes to collect tax on the basis of removing the effect of a claim made in a return that is subject to s9A enquiry, it can only do so by the exercise of a power to amend the assessment, against which formal rights of appeal and postponement apply.

The 'Cotter' decision

In Cotter, HMRC commenced proceedings in the High Court to recover tax of over £200k. The tax arose as a result of HMRC having ignored the effect of the tax credit in his return that arose from his loss claim, relying on the enquiry being carried out under Sch 1A for its power to leave the credit out of account whilst the enquiry continued.

Mr Cotter's 2008/2009 loss had been claimed in the 2007/2008 return. HMRC contended that for the 2008/2009 loss to be claimed 'in a return', the claim must be made in the return for the year of the loss, i.e the 2008/2009 return.

In HMRC's view, the entries in the 2007/2008 return amounted to a claim made 'outside' of a return, so that the enquiry was properly carried out under Sch 1A, and as a result HMRC was entitled to give no effect to the claim while the enquiry continued, and hence was able to continue collection proceedings in the High Court.

The Court of Appeal decided that the entries on the 2007/2008 return were 'contained in a return', so that the only way HMRC could enquire into the claim was by the s9A procedure of enquiry into a return, not the Sch 1A procedure. It followed that as the power contained within Sch 1A to leave the credit out of account was not available to HMRC, the collection proceedings in the High Court, which arose as a result of removal of the 'free-standing credit', could not be continued.

Relevance for taxpayers

It remains to be seen whether HMRC appeal the decision. In the meantime if a taxpayer has made claims affecting two or more years of assessment in their tax returns, and HMRC has removed the resulting 'freestanding credit' from their Statement of Account and sought to collect tax that then becomes due, HMRC should be challenged on the basis that as the enquiry is under s9A, the taxpayer is entitled to retain the full benefit of the credit until the enquiry is concluded, citing the 'Cotter' decision.

2.2. Consultation on power to withdraw notice to file a self-assessment return

HMRC has issued a consultation paper seeking views on a proposal to introduce a statutory power allowing HMRC to withdraw a notice to file a self-assessment tax return where it is appropriate to do so.

The introduction says:

"HMRC operates a policy of requiring Self Assessment returns only from those people whose circumstances make it appropriate for them to be in the Self Assessment (SA) regime. This consultation seeks views on how HMRC should deal with cases where an individual is sent a notice to file a personal, trustee or partnership SA tax return but where HMRC subsequently accept a SA return is not needed.

HMRC may require a SA return from any person. However it only does so in circumstances where it considers a return is necessary. This is usually where a person has more complicated tax affairs, income over a certain level or income from several sources. HMRC has the discretion to decide when a notice should be sent and this decision is based on whether HMRC requires a SA return to calculate and ensure that the correct amount of tax is paid.

There are no statutory criteria setting out when HMRC will require a SA return but the most common reasons are where a person:

  • is self-employed or a partner in a business at any time in the year;
  • is a company director;
  • receives income over £100,000;
  • receives more than £10,000 in savings and investment income;
  • receives income from letting out property;
  • receives foreign income liable to UK tax; or
  • is an employee claiming expenses or professional subscriptions of £2,500 or more.

This is not an exhaustive list as the power to issue a notice to file is flexible. There is also a range of less common circumstances where a return may be necessary, for example, if individuals need to complete a SA return to claim certain sorts of relief or to crystallise a tax debt.

HMRC issues a notice requiring an individual to complete a SA return based on the information it holds. Sometimes an individual's circumstances will have changed, perhaps since they completed their last SA return. As a result, individuals sometimes complete returns which HMRC then processes but which after the event are found to have been unnecessary."

http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true&_pageLabel= pageLibrary_ConsultationDocuments&propertyType=document&columns=1&id=HMCE_PROD1_032077

2.3. Tax calculator

HMRC has published an online version of its tax calculator to allow taxpayers to generate a personalised breakdown of how their taxes are spent by entering their salary.

https://esi2calculator.hmrc.gov.uk/hmrctaxcalculator/screen/Personal+Tax+Calculator/en- GB/summary?user=guest

3. PAYE and Employment matters

3.1. Consultation on taxation of controlling persons

HMRC has issued a consultation on the taxation of controlling persons. The consultation is open until 16 August 2012. The following notes are extracts from the consultation:

Where someone is using a personal service company [PSC] to disguise their true employment relationship with their engager, there is already high profile anti-avoidance legislation to ensure that they do not gain a tax or National Insurance advantage. The intermediaries' legislation: Chapter 8 Part 2 Income Tax Earnings and Pension Act (ITEPA) 2003, is commonly known as IR35. This legislation requires the intermediary to pay income tax and National Insurance on all income from a contract which would be a contract of employment if it wasn't for the interposition of the intermediary.

When IR35 was introduced 10 years ago, it was unusual for a senior/controlling person to be engaged through their own limited company. It is the Government's view that where an individual has the requisite level of control to direct the activities of the organisation and they are engaged at a senior level (through an intermediary) then that individual should be taxed as an employee.

The Government's intention is to ensure that where an organisation engages a controlling person the engaging organisation will be required to deduct the income tax (PAYE) and National Insurance at source, as they would for their employees. This ensures that the taxation of the worker is transparent to the engager.

The Government is proposing to create in legislation a provision which would require the engaging organisation to place all controlling persons on the payroll. This provision would apply even where they might be working through a PSC for other purposes and even if the payments made by the engaging organisation were made to the PSC and not directly to the individual worker.

This would mean the whole amount paid by the engager to the PSC would be treated as remuneration of the controlling person as if they were an employee. The controlling person would have income tax and National Insurance deducted at source by the engaging organisation. This would effectively mean that the worker would be taxed in the same way as employees of the organisation.

This provision would take precedent over Chapters 7 and 8 ITEPA 2003 and all extra statutory provisions in the case of 'controlling persons' only. This provision would place the responsibility of deducting the tax and National insurance payments on the engaging organisation as well as making them liable for the relevant employer's National Insurance contributions. The IR35 legislation places this responsibility on the PSC. Placing the responsibility back onto the engaging organisation in the case of controlling persons removes some of the incentive for engaging organisations to encourage workers to be engaged through personal service companies as they will no longer make the National Insurance savings.

The Government proposes that a controlling person is defined as someone who is able to shape the direction of the organisation having authority or responsibility for directing or controlling the major activities of the engaging organisation during the year. This would be someone who has managerial control over a significant proportion of the organisation's employees and/or control over a significant proportion of the budget of the organisation.

There is an intention to exclude 'micro businesses' who engage controlling persons through a PSC from this provision. A micro business, is defined by the EU as a business which employs fewer than 10 persons and whose turnover and or balance sheet does not exceed €2million (approximately £1.7million.) This is because the burden on these micro businesses would be disproportionate and we would not want to discourage enterprise. This exclusion would not apply to micro businesses that are part of a group structure.

http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true&_pageLabel= pageLibrary_ConsultationDocuments&propertyType=document&columns=1&id=HMCE_PROD1_032074

3.2. Increase in Enterprise Management Incentive (EMI) limit

Following the announcement at Budget 2012 on increasing the value of shares over which EMI options can be granted, a statutory instrument (SI 2012/1360) has been issued increasing the limit from £120,000 to £250,000 with effect from 16 June 2012.

It may be worth remembering that, subject to state aid approval, changes will be introduced in Finance Bill 2013 to permit shares acquired through the exercise of EMI options after 6 April 2012 to qualify for entrepreneurs' relief, whatever the level of holding. The current proposals still require that the shares be held for a minimum of 12 months in order to access entrepreneurs' relief.

www.legislation.gov.uk/uksi/2012/1360/pdfs/uksi_20121360_en.pdf

4. Business tax

4.1. Consultation on the taxation of unauthorised unit trusts (UUTs)

On 24 May 2012 HMRC issued a consultation on reform of the taxation of exempt and non-exempt unauthorised unit trusts (EUUTs and NEUUTs). The consultation closes on 20 August 2012. A summary of the background and proposals is:

Background and current tax treatment

UUTs are any unit trust scheme that is not authorised in terms of the Financial Services and Markets Act 2000. As UUTs are not regulated, they are not restricted in the investments that they can make (except to the extent governed by the documentation constituting the scheme) or with regards to other factors such as the degree of leverage employed. Unauthorised funds cannot be marketed to the general public (although authorised promoters may market them to 'qualified' investors), and such schemes typically have institutional investors.

For tax purposes, a UUT whose investors consist only of entities that would be wholly exempt from Capital Gains Tax or Corporation Tax on chargeable gains (other than by reason of residence), is itself exempt from tax on chargeable gains (S100(2) Taxation of Chargeable Gains Act 1992). Such UUTs are known as exempt UUTs (EUUTs). Investors in EUUTs can include pension funds, charities, local authorities, authorised investment funds, investment trusts or other EUUTs (in a 'fund of funds'). They are referred to in this document as 'exempt investors', although it is important to note that they are only exempt in respect of chargeable gains: the investors will include some who are chargeable to tax on all of their income and some who are chargeable to tax on some types of income.

A UUT that has one or more investors that would not be wholly exempt from Capital Gains Tax or Corporation Tax on chargeable gains (other than by reason of residence) is known as a non-exempt UUT (NEUUT). Such investors are referred to in this document as 'non-exempt investors'. The tax rules for EUUTs and NEUUTs currently operate in a similar way, except for the treatment of chargeable gains in the fund.

EUUTs

It is not proposed to change the current definition of an EUUT, so the types of investor able to invest in a UUT that wishes to have exempt status will not change.

The proposals include amending the tax rules to reduce the administrative burdens on EUUTs and their investors by simplifying the basis of calculating income for tax purposes and amending the rules for when income is deemed to be distributed. They would also remove the requirement for trustees to deduct tax from deemed payments to investors.

As a result of the proposal to remove the requirement to deduct tax from deemed payments to investors, it will be necessary to make changes to the tax treatment of authorised investment funds that invest [in].

The proposals also address the current 'cliff-edge' that results in EUUTs losing their exempt status if an existing investor loses its own exempt status or an ineligible investor is inadvertently admitted. They do so by introducing rules that allow a UUT to apply for approval as an EUUT and to then be subject to provisions that deal with breaches in a more proportionate way.

Transitional rules will be required to deal with the proposed changes to the way income and distributions are treated.

In response to stakeholders' responses to the first consultation, it is proposed to introduce rules that allow EUUTs to invest in a more tax-efficient way in offshore non-reporting funds by being able to treat them as if they were in reporting funds in certain circumstances.

Also in response to stakeholders' responses, it is proposed to introduce 'white list' provisions similar to those available to certain AIFs and offshore funds, in order to prevent defined financial transactions from being characterised as trading transactions for tax purposes and so provide greater certainty provided that it is possible to do so without creating avoidance risks.

Summary of proposals for NEUUTs

It is proposed that NEUUTs will be within the charge to Corporation Tax.

Distributions from NEUUTs would then be treated as corporate dividends, with corporate investors being exempt on such income and individual investors receiving a non-repayable tax credit to offset against Income Tax liability.

The proposals include transitional rules and temporary preserved treatment for NEUUTs that have one or more exempt investor at the date of this document.

http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true&_pageLabel= pageLibrary_ShowContent&propertyType=document&id=HMCE_PROD1_032081

4.2. Supreme Court judgment in the FII group litigation order

Woolwich claims can arise as a result of tax unlawfully demanded and to which a six year time limit applies from the date of unlawful demand. DMG (Deutsche Morgan Grenfell) claims can arise where tax is mistakenly paid. DMG claims are subject to an extended limitation period under the Limitation Act 1980 s32(1), where an unrestricted claim may be made within six years of the time when a mistake was discovered or a claimant could with reasonable diligence have discovered the mistake.

Which remedy is appropriate has a significant outcome on the amount that can be repaid. EU law required there to be an effective and equivalent remedy for monies paid in respect of the tax that was unlawfully charged. The principle of effectiveness requires that member states guarantee effective remedies for the enforcement of rights based on EU laws. The equivalence principle requires that member states do not apply less favourable national rules governing the exercise of rights based on EU law than they apply in the case of similar domestic actions.

The question on whether these principles entitle a claimant to compound interest is being considered in the Littlewoods case (see Tax Update 16 January 2012 for the Advocate General's opinion), where based on the Advocate General's opinion it seems that in the case of the UK compound interest on repayments is unlikely. However the uncertainty in the FII case is whether there is a right to chose the most favourable remedy if there is a choice (as in this case) – one remedy requiring a six year limitation period from the date of unlawful demand, the other an unrestricted claim provided made within six years of the time when the mistake could reasonably be discovered.

The Supreme Court has overturned parts of the Court of Appeal's judgement on the Franked Investment Income (FII) group litigation order.

The Supreme Court considered four issues:

1) Could Parliament lawfully curtail without notice the extended limitation period under section 32(1)(c) of the Limitation Act 1980 for the mistake cause of action (section 320 FA 2004) and cancel claims made using that cause of action for the extended period (section 107 FA 2007)? In particular:

  1. Would a Woolwich restitution remedy be a sufficient remedy for the repayment claims brought on the basis of EU law?
  2. Whether or not a Woolwich restitution remedy would be a sufficient remedy, does EU law protect the claims which were made in mistake; and, specifically, did the curtailment without notice of the extended limitation period for mistake claims (section 320 FA 2004) and the cancellation of such claims in respect of the extended period (section 107 FA 2007) infringe the EU law principles of effectiveness, legal certainty, legitimate expectations and rule of law (Court of Appeal issues 20 and 21)?

The majority of the Supreme Court held that the Woolwich remedy on its own was not sufficient to meet the requirements of effectiveness and equivalence (see below). The majority view was therefore that the retrospective application of the limitation period to curtail without notice extended claims through FA04 s320, was contrary to EU law. The Supreme Court's unanimous view was that by 2006 the claimants had a legitimate expectation with regard to the claims, and that the curtailment of this expectation by FA07 s107 was unlawful. However, as there was a division of opinion in the Supreme Court on whether there should be a choice of remedy under Woolwich or DMG, the parties to the appeal were invited to prepare questions for referral to the CJEU.

2) Are the restitution and damages remedies sought by the test claimants in respect of corporation tax paid under section 18 (Schedule D, Case V) of the ICTA 1988 excluded by virtue of the statutory provisions for recovery of overpaid tax in section 33 of the Taxes Management Act 1970?

The Supreme Court held that s33 was not an exclusive remedy in contrast to the Court of Appeal.

3) Does section 32(1)(c) of the Limitation Act 1980 apply to a claim for a Woolwich restitution remedy (Court of Appeal issue 22)?

The Supreme Court held that s32(1)(c) of the Limitation Act 1980 did not apply to a Woolwich remedy, agreeing with the Court of Appeal.

4) Does the Woolwich restitution remedy apply only to tax that is demanded by the Revenue, and not to tax such as ACT which is payable on a return; and, if so, what amounts to a demand?

The Supreme Court held that the Woolwich remedy did not only apply only to tax demanded by the Revenue, in contrast to the Court of Appeal.

There are two types of restitutionary remedy available in English law:

www.bailii.org/uk/cases/UKSC/2012/19.html

5. Tax Publications

NTBN218 - Joint Share Ownership Plan (JSOP)

This briefing note provides basic information on joint share ownership plans (JSOP) in the context of remuneration arrangements, including how they work, who they are suitable for and the accounting and tax implications.

NTBN220 - iXBRL

This factsheet sets out the practical issues to consider for complying with HMRC's requirement for iXBRL compliant tax returns and accounts for tax returns submitted on or after 1 April 2011 relating to accounting periods ending on or after 1 April 2010.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

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