UK: Weekly Tax Update - Monday 1 October 2012

Last Updated: 10 October 2012
Article by Richard Mannion


1.1. Will writing and estate administration

In July 2011 the Legal Services Board (LSB) launched investigations under sections 24 and 26 of the Legal Services Act 2007, in order to form a view on whether the list of reserved legal activities should be amended to include will-writing and estate administration activities. The inclusion of activities on that list would mean they may only be undertaken by individuals and entities authorised and regulated by an approved legal services regulator.

A consultation document entitled "Enhancing consumer protection, reducing regulatory restrictions: will- writing, probate and estate administration activities" was published on 23 April 2012, setting out the results of LSB's investigations and their proposals for action. The investigations indicated that many consumers were not adequately protected at the time a will was written or an estate was administered and LSB proposed that action needed to be taken to protect consumers and promote their and the wider public interest.

LSB published two key proposals:

  • Recommending to the Lord Chancellor that the list of reserved activities be extended to include will-writing and estate administration activities;
  • Improving the effectiveness of the existing legal services regulation that applies to the majority of providers delivering these services, where it is not working well for consumers.

LSB has now reviewed all of the consultation responses received and has published a further set of documents for a six-week consultation, including a Provisional Report and draft guidance.

The Provisional Report says: "The publication of a Provisional Report following a section 24 or 26 investigation is a statutory duty placed on the LSB by schedule 6 to the Act. In line with our obligations under schedule 6(10) the Provisional Report states that we remain minded to recommend that the Lord Chancellor amends the list of reserved legal activities to include will-writing and estate administration activities and the reasons for these recommendations."


2.1. Application for hearing in private

A well-known broadcaster (described as Mr A) submitted a tax return claiming that he had made a loss. Mr A acknowledged that the alleged loss resulted from his use of a tax avoidance scheme, and HMRC issued an amendment rejecting the claim. The broadcaster appealed, and made a preliminary application for the hearing to be in private and for the decision to be anonymised.

The First-tier Tribunal rejected the application (TC02217).

The basis of Mr A's application was that there is currently considerable media interest in tax avoidance schemes, and in particular in their use by celebrities. Mr A appears frequently on television and radio, and the case report indicated that he is already the focus of media interest for other reasons, much of it hostile and he was fearful that his career might be damaged, if it were to become public knowledge that he had availed himself of a tax avoidance scheme.

While the presumption was that hearings are to be in public, counsel for Mr A argued that the potential damage to Mr A's career infringed Mr A's "right to respect for his private and family life" under the European Convention on Human Rights.

HMRC contended that the threshold a taxpayer must surmount in order to secure a private hearing is a high one, and the embarrassment Mr A might suffer, however acute it might be, was not enough. Counsel for HMRC referred to a Practice Note issued by the Court of Appeal inPink Floyd Music Ltd v EMI Records Ltd [2010] EWCA Civ 1429 in which the Master of the Rolls observed that "the Court of Appeal should not depart from the general rule that litigation is to be conducted in public, unless a judge of that court is persuaded that there are cogent reasons for doing so."

The tribunal judge Mr Colin Bishopp said: "In my judgment the presumption of a public hearing is nowadays stronger than it might have been perceived even a few years ago. The modern view in relation to tax appeals was, I think, well put by Henderson J in Revenue and Customs Commissioners v Banerjee (No 2) [2009] STC 1930:

"[34] ... In my opinion any taxpayer has a reasonable expectation of privacy in relation to his or her financial and fiscal affairs, and it is important that this basic principle should not be whittled away. However, the principle of public justice is a very potent one, for reasons which are too obvious to need recitation, and in my judgment it will only be in truly exceptional circumstances that a taxpayer's rights to privacy and confidentiality could properly prevail in the balancing exercise that the court has to perform.

[35] It is relevant to bear in mind, I think, that taxation always has been, and probably always will be, a subject of particular sensitivity both for the citizen and for the executive arm of government. It is an area where public and private interests intersect, if not collide; and for that reason there is nearly always a wider public interest potentially involved in even the most mundane-seeming tax dispute. Nowhere is that more true, in my judgment, than in relation to the rules governing the deductibility of expenses for income tax. Those rules directly affect the vast majority of taxpayers, and any High Court judgment on the subject is likely to be of wide significance, quite possibly in ways which may not be immediately apparent when it is delivered. These considerations serve to reinforce the point that in tax cases the public interest generally requires the precise facts relevant to the decision to be a matter of public record, and not to be more or less heavily veiled by a process of redaction or anonymisation. The inevitable degree of intrusion into the taxpayer's privacy which this involves is, in all normal circumstances, the price which has to be paid for the resolution of tax disputes through a system of open justice rather than by administrative fiat."

I respectfully agree. This case is not on all fours with Banerjee, but the issue is similar: whether the taxpayer is entitled to pay less tax because, in that case, she had incurred some expenses and, in this, because he has suffered a loss, whether or not real. There is an obvious public interest in its being clear that the tax system is being operated even-handedly, an interest which would be compromised if hearings before this tribunal were in private save in the most compelling of circumstances. The fact that a taxpayer is rich, or that he is in the public eye, do not seem to me to dictate a different approach; on the contrary, it may be that hearing the appeal of such a person in private would give rise to the suspicion, if no more, that riches or fame can buy anonymity, and protection from the scrutiny which others cannot avoid. That plainly cannot be right."

Under the previous system hearings before the General Commissions were heard in private and it was quite common for the Special Commissioners to agree for their decisions to be anonymised. It appears that the bar has been set considerably higher.

2.2. Tackling tax avoidance

HM Treasury issued the following press release on 25 September:

"The Chief Secretary to the Treasury, Danny Alexander has today made a number of announcements about action the Government is taking to tackle tax avoidance.

HMRC Affluent Unit

Launched in October 2011, HMRC's Affluent Unit brings together 200 specialists from across the department using new and innovative risk assessment techniques to identify areas where wealthy individuals are avoiding or evading taxes and duties.

The unit will be expanded to deal with taxpayers with a net worth of £1m instead of the current £2.5m. An extra 100 inspectors and specialists will be recruited to cover the tax affairs of 200,000 more individuals, an increase from around 300,000 under the current threshold, to the 500,000 wealthiest people in the country.

Liechtenstein Disclosure Facility (LDF)

The LDF is an agreement between the governments of Liechtenstein and the UK which enables UK residents to declare previously undisclosed liabilities to HMRC. It is part of HMRC's broader drive against offshore tax evasion and will run until 5 April 2016.

The HMRC team working on the LDF is being doubled in size and is now expected to bring in £3bn, over £2bn more than anticipated when the agreement was signed.

The Chief Secretary also announced that HMRC and the Cabinet Office have been tasked with looking into how the Government can use the procurement process for government contracts to deter the very small minority of companies and individuals that do so from evading tax and using aggressive tax avoidance schemes."

2.3. CGT, establishing ordinary residence in Spain and the application of article 4 of the DTA

The case of Lynette Dawn Yates considered whether she had removed her ordinary residence location from the UK to Spain between 2000 and 2008, and the application of article 4 of the UK/Spain double tax agreement with respect to the taxation of capital gains. The case concerned appeals against capital gains assessments as follows: 2003/04 - £773,617; 2004/05 -£867,009; 2006/2007 - £113,566.

Ms Yates had gone to live in Spain in 2000 as part of the treatment for her suffering from Gaucher disease. She had frequent trips to the UK, but for the years in question was out of the UK for at least 183 days per year.

Ms Yates contended that her visits to the UK were occasioned by chance and occasion and that she had made a distinct break with the UK. However the First-tier Tribunal determined that the centre of her vital interests was around her husband who remained resident in the UK at 1 Kingston Hall near Nottingham in the relevant years, and that for tax purposes she remained UK resident and ordinarily resident.


3.1. UBS and Deutsche Bank Group Services (UK) Ltd

Whether share awards were restricted securities for ITEPA part 7 purposes

The Upper Tribunal (UT) has considered the earlier decisions from the First-tier Tribunal (FTT) concerning restricted share scheme arrangements used by UBS and Deutsche Bank for the 2003/04 tax year. The result has overturned the First-tier Tribunal's decision for the UBS scheme, while leaving the result unchanged in case of Deutsche bank. The case is significant as there was a marked contrast in approach between the two tiers of Tribunals. Broadly, the FTT was content to look at the arrangement and apply a Ramsay approach to say that, crudely, because this is tax avoidance and no part of the purpose of ITEPA part 7 ch 2 was to allow tax avoidance then the scheme is defeated. The UT dealt with the prescriptive nature of the ITEPA part 7 chapter 2 legislation more thoroughly in relation to the facts of each case.

The UT considered that the main question was one of construction of the legislation. They firstly considered whether ITEPA s18(1) rule 2 (one of the rules for determining when earnings are received "the time when a person becomes entitled to payment of or on account of the earnings") denoted only a present right to a present payment, or could be wide enough to include a right to payment in the future. Their conclusion was that it was a present right to a present payment. This was supported by the comments of Lord Hoffman in MacDonald v Dextra Accessories Ltd ([2005} UKHL 47) and Jonathan Parker LJ in the Court of Appeal in DTE Financial Services Ltd v Wilson ([2001] EWCA Civ 455). They also considered that if rule 2 had the wider meaning proposed by HMRC, then there would be no need for ITEPA s18 rule 3 (which gives more precise rules for determining earnings for directors and considers a right to a payment in the future).

The UT commented that HMRC's contention for a wider interpretation to rule 2 was at odds with its guidance at EIM42290. That guidance in relation to the time when earnings are received includes the following text:

"Earnings are treated as received when a person becomes entitled to payment of or on account of earnings......Note that the rule is when a personbecomes entitled to paymentof earnings. This is not necessarily the same as the date on which an employee acquires a right to be paid....."

The FTT had concluded that where an employee was entitled to a guaranteed bonus, then despite the fact that before receiving that bonus he had agreed with the bank it would be used to participate in the share scheme, this represented earnings within ITEPA s18 rule 2. The UT overturned this decision, concluding that as the guaranteed bonuses were not received before entry into the scheme, there was no entitlement to earnings prior to entry into the scheme. On entry into the scheme there was then an entitlement to non-monetary earnings (the shares), which by virtue of ITEPA s19(4) are treated as received at the time the benefit is provided.

In contrast to the UBS case, in the Deutsche Bank case the FTT had concluded that there was no entitlement to earnings ahead of the transfer of funds into the scheme, and the UT agreed with this conclusion.

The actual receiptor due date of payment of remuneration to employees is a key factor and the date of physical payment will, be a critical factor in assessing the time at which such 'earnings' are liable to income tax.

UBS argued at the UT that no liability to income tax arose in respect of the acquisition of scheme shares as all the conditions in ITEPA s425 were met. This requires that the securities were restricted securities according to the provisions of ITEPA s423, and in particular the requirements of s423(2)(c) were examined in great detail. The FTT had concluded that because of the terms of a hedging option (a very low probability of an adverse result) and the fact that this was a carefully designed scheme to ensure the employees did not suffer a loss arising from a 'trigger' event, ITEPA s423(2)(c) was not met.

The UT agreed with UBS that the focus of the First-tier Tribunal on the overall economic result for the employee was not the correct approach in determining whether s423(2)(c) was satisfied. That provision requires that the individual will"... not be entitled ... to an amount of at least their market value at the time of transfer, reversion or forfeiture (for example on a forced sale)."

The UT cited Lord Walker's comments in Re Lynall deceased ([1972] AC680) as well established principles on the valuation of shares in companies, that meant that parliament's intention in s423(2)(c) must have been to:

".. negate the depressing effect on market value which would otherwise be caused by the hypothetical acquisition of the relevant securities by the purchaser subject to the provision for transfer, reversion or forfeiture, and to ensure that if the employee were entitled to receive only the depressed market value of the securities, they would still be restricted securities for the purposes of Chapter 2."

The UT concluded that it was necessary to consider the relevant provisions in the articles of the employee share plan rather than the terms of a collateral hedging arrangement in determining whether s423(2)(c) was satisfied, and on the facts in UBS this condition was met.

While the same facts were not present in the Deutsche Bank case, the UT agreed with the FTT that the shares in the Deutsche Bank case did meet the definition of restricted securities.

The remaining part of the UT's decision concerned the application of ITEPA s429, which if relevant, excluded the shares from a charge under the ITEPA part 7 chapter 2 provisions at the time (s429 was substantially altered with effect on or after 7 May 2004 to prevent future use of schemes such as those used by UBS and Deutsche Bank). However, when the UBS and Deutsche Bank arrangements were put in place the question of whether s429 applied depended on whether the share scheme company was associated with UBS.

The FTT concluded in the UBS case that there was no association. The UT examined this in more detail, including whether it was possible to disregard articles of association on the basis that they were deliberately inserted to circumvent the association provisions. They regretfully decided they could not, as this was a matter to be determined as a question of law, and the articles of association could not therefore be ignored. They therefore agreed with the FTT on this point.

When considering this aspect of the Deutsche Bank scheme, the UT again agreed with the conclusions of the FTT. Here the circumstances were different to the UBS situation, and it was held that due to the commercial arrangements between Deutsche Bank and the intermediary (Investec) through whom the share scheme company was managed, Deutsche Bank did have effective control and was therefore associated with it.

The FTT had agreed with HMRC's view that under a Ramsay approach the scheme transactions could be ignored. However the UT disagreed with this conclusion, as they could not see how the transactions provided anything other than restricted securities to employees in a manner that fell squarely within the prescriptive requirements of chapter 2, and therefore fell out of the charge to income tax. They could only justify the argument for the Ramsay approach if on a realistic appraisal of the facts the scheme was one which provided money. However, money is explicitly excluded from the definition of "securities" for the purposes of ITEPA part 7 chapter 1 to 5 by s245(5)(b). On the facts of the UBS case however, they concluded that what was received by the employees was conclusively "securities".

The UT (a tribunal consisting of Mr Justice Henderson and Mr Charles Hellier) commented:

"The problems for HMRC are compounded by the fact that Chapter 2 contains a very detailed and prescriptive code for dealing with restricted securities, in the context of a Part which had as one of its main objectives the countering of tax avoidance. Experience has shown that advantage can sometimes be taken of detailed statutory codes of this general nature in a way that is resistant to a Ramsay analysis, with the result that even the most artificial of tax avoidance schemes may succeed in their object. For a recent example, which also involved a chargeable event regime although in the context of life insurance policies, see the decisions of Proudman J and the Court of Appeal in Mayes v Revenue & Customs Commissioners [2009] EWHC 2443(Ch), ..., affirmed at [2011] EWCA Civ 407, ...."

It would be interesting to speculate whether the same conclusion would have been reached if a GAAR had been in place, and we would expect (if this decision is not appealed further) that this case would form one of the examples used to illustrate when the GAAR would and would not apply in HMRC's proposed GAAR guidance.

3.2. HMRC Employer Bulletin and real time information

HMRC's September Employer Bulletin discusses the operation of real time information (RTI).


4.1. Further draft guidance on the CFC rules

HMRC has published further draft guidance on the Finance Act 2012 CFC rules, in particular TOIPA Part 9A Chapters 6, 8, 11 to 19 and 22.

4.2. EC refers the UK to the CJEU over cross border loss relief

The European Commission has decided to refer the United Kingdom to the EU Court of Justice (ECJ) for its tax legislation on cross-border loss relief. The Commission considers that the UK has failed to properly implement the ECJ's previous "Marks & Spencer" ruling (Case C-446/03) on this matter.

In 2005, the Court ruled that a parent company should not be prevented from deducting the losses of its subsidiary established in another Member State, if all other possibilities have been exhausted. Although the UK amended its legislation after the judgement, it continues to impose conditions on cross-border group loss relief which, in practice, make it very difficult to benefit from. The Commission considers this to infringe the principle of non-discrimination and the freedom of establishment, set down in the Treaty.

Algirdas `emeta, Commissioner for Taxation, Customs, Anti-fraud and Audit, said: "Cross border loss relief is a basic need for businesses that expand beyond national borders. It is essential for entrepreneurship and for creating a positive business environment within the Single Market. I therefore urge the UK and all Member States to respect the case law on this matter."

The referral to the Court of Justice is the last step in the infringement procedure.


In 2003, the High Court of Justice of England and Wales referred a preliminary question to the EU's Court of Justice in the context of the case of Marks & Spencer plc v. David Halsey (Her Majesty's Inspector of Taxes). In 2005, the Court ruled that: "it is contrary to Articles 43 EC and 48 EC to prevent the resident parent company from [deducting from its taxable profits losses incurred in another Member State by a subsidiary established in that Member State] where the non-resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account for the accounting period concerned by the claim for relief and also for previous accounting periods and where there are no possibilities for those losses to be taken into account in its State of residence for future periods either by the subsidiary itself or by a third party". This ruling is applicable to all Member States.

5. VAT

5.1. Field Fisher Waterhouse – VAT on property service charges

The European Court has provided what seems like fairly strong guidance for the UK Courts to conclude that in the Field Fisher Waterhouse (FFW) lease situation there is a single exempt supply.

Field Fisher Waterhouse argued that the service charge levied by their landlord should not be exempt like the rent but treated as a separate taxable supply and hence permit them as tenant the right to recover the input VAT included in the service charge. The CJEU provided guidance on single, composite and multiple supplies including the option of a third party providing some of the services.

The Court did indicate that it should be possible to separate out the provision of services from the supply of land & property. However to satisfy this the landlord would need to uncouple the contracts for rent of space and supply of services, potentially giving up some control over the charging for services. Alternatively the provision of those services would need to be seen as a purpose in itself. The Court referred the case back to the UK Courts to determine how closely linked the service and rental elements of the lease were.

The guidance at section 11 of HMRC's VAT Notice 742 (Land and Property) appears to follow the ECJ's guidance, commenting "[If as a] landlord or licensor, you are obliged under the terms of the lease to provide services similar to those above [building repairs and maintenance, management of the lease, provision of concierge & warden, buildings insurance etc], the service charges follow the same VAT liability as the premium or rents payable under the lease or licence". The Notice highlights instances where the supply of services takes on its own VAT characteristics which may be different from that of the supply of the lease or licence.

5.2. Scope of the exemption for management of special investment funds; occupational pension schemes

We understand that during the hearing for the Wheels case (CJEU case C-424/11), the EU Commission opposed the idea of including occupational pension funds within the scope of the VAT exemption for the management of special investment funds. It remains to be seen how much this will impact on the Court's decision.

5.3. VAT treatment of portfolio management services

HMRC appear to accept that the CJEU decision in Deutsche Bank case (C-44/11) on the VAT treatment of portfolio management services does not mean that investment management services are incapable of being two kinds of supply. However, where the facts are similar to those in Deutsche Bank, i.e. a client is signing up to a single supply of investment management services, these services are subject to VAT. HMRC is saying that, in future, designating part of the cost as a 'dealing charge' will not, on its own, be sufficient to justify exemption.

These principles could potentially also apply to other types of investment management services, in particular 'advisory managed' services, in the future.

HMRC will tighten up their policy with effect from a future date, most likely next year, and we are taking an active part in their on going discussions with the sector. HMRC expects to issue a Revenue & Customs Brief before Christmas.

5.4. VAT Appeals Update

HMRC has updated its list of cases under appeal as at 11 September 2012. This indicates that HMRC may decide not to appeal the decision of the First-tier Tribunal in the Robinson case, which concerned the creation of the sublease and the TOGC status of the onward sale of a property rental business involving the asset represented by the sublease.

5.5. Goals Soccer Centre and the VAT supply of sports fields

Goals Soccer Centre plc (GSC) developed a chain of five-a-side soccer centres incorporating state-of-the-art artificial turf technology, with floodlit pitches and high quality amenities such as well-equipped changing rooms, lounge bar facilities and adjacent car parking. It currently has 43 such venues throughout the United Kingdom and one such venue in Los Angeles. They trade under the brand name Goals Soccer.

They offer paying customers the opportunity to hire pitches to be used for friendly matches, training, leagues, tournaments, corporate functions and children's parties. The main focus of the business is the generation of revenue by renting out soccer pitches to the general public. In essence, this is done in one of two ways.

Firstly, there is the 'Casual Booking' whereby a pitch is booked for a single session without any commitment to book a pitch or play at the GSC's venue ever again. Secondly, there is the 'Block Booking', where a commitment is made to book pitches on a number of occasions, usually ten or more, at frequent intervals, usually weekly.

GSC also administers the operation of leagues. The general business purpose of doing so is to enhance the playing experience, to increase the number and regularity of bookings, and to create and maintain customer loyalty. What GSC offers may thus be supplied in a range of combinations.

HMRC contended the business was a taxable supply of football competition, not characterised by a supply of land. GCS contended the supplies constituted multiple supplies of exempt pitch hire services on the one hand and supplies of standard rated league participation services on the other. Alternatively they contended that the pitch hire services constitute the principal overarching supply with league participation services being the ancillary element, therefore all these supplies should be treated as one single exempt supply of pitch services.

From the point of view of the typical consumer, the Tribunal concluded there is a discrete supply of the use of a pitch, on the one hand, and the supply of league management services on the other hand. The former is exempt from VAT provided the statutory criteria are met (as in the case of GSC). The latter supply is standard rated. If their conclusion on the GCS's primary case was wrong, and the assumption is made that there is a single composite supply, then the Tribunal were of the view that pitch hire is clearly the principal supply and league management services are clearly ancillary thereto.


Buying High Value Residential Property in the UK

The Government has announced a number of changes that impact on the purchase of ownership of high value residential properties in UK.

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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