UK: Weekly Tax Update - Monday 12 November 2012

Last Updated: 28 November 2012
Article by Richard Mannion

1. GENERAL NEWS

1.1. GAAR – interim advisory group

The Government has announced that it will appoint an interim advisory group to oversee the development of guidance on the new General Anti-Abuse Rule (GAAR).

At Budget 2012, the Government announced that a GAAR Advisory Panel would be established to give opinions on specific cases and to approve HMRC guidance on the new rule. HMRC will shortly begin the process of advertising for and appointing a Chair of the Advisory Panel, who will then advise HMRC on appointing the other panel members.

This process will not be complete until early next year. Until this time an interim group of panel members led by Graham Aaronson QC will oversee the development of the new guidance, after it is published for public consultation in December.

Graham Aaronson will invite bodies representing business and the professions to work with him, as he brings the interim group together, to ensure that an appropriate spread of interests is involved, including business, tax advisers, and wider taxpayer interests.

The Government anticipates that the Chair of the Advisory Panel will be in post by the end of January 2013, and will join the interim group to provide continuity.

It is interesting to note that HMRC will not be represented on the Advisory Panel (including the interim group), but will support it both with administrative and secretariat resources.

Exchequer Secretary to the Treasury, David Gauke said:

"HMRC already has a strong set of weapons to tackle tax avoidance, and the GAAR will be a valuable additional tool in tackling artificial and abusive avoidance schemes. But we are also clear that it must address such schemes without creating uncertainty for business investment. I am pleased that Graham Aaronson will bring to bear the expertise that he and his colleagues have already brought to the GAAR Study Group Report to ensure that HMRC's guidance is of practical use to all taxpayers."

The Government has welcomed the positive engagement of all parties with the GAAR consultation and the time taken by respondents to provide helpful and thoughtful comments. A full Response Document will be published with the draft legislation and draft guidance in December.

2. PAYE AND EMPLOYMENT MATTERS

2.1. Whether payments in respect of motor expenses were subject to NIC

The Upper Tribunal's decision in the case of Cheshire Employer And Skills Development Limited (Formerly Total People Limited) has been overturned by the Court of Appeal, with the result that the taxpayer was entitled to a refund of NIC incorrectly paid.

The taxpayer company had won in the First-tier Tribunal (FTT), but lost in the Upper Tribunal (UT).

The Court of Appeal commented that:

"It is clear that the FTT and the UT were not well served by the parties' advocates. No cases were cited to the FTT, and, in particular, no reference was made to Donnelly. Nor was any reference made to paragraph 7A of Part VIII of Schedule 3 to the 2001 Regulations, let alone any submission made that paragraph 7A is implicitly limited to RME within Regulation 22A(3)."

The advocate for the taxpayer at the First Tier and Upper Tier Tribunals was different from those appearing at the Court of Appeal.

The Court of Appeal discussed the principles outlined in Donnelly v Williamson [1982] STC 88, which can be summarised as follows:

"In a case where an employer establishes a general scheme for reimbursement of employees' travelling expenditure, then in determining whether the allowances are to be treated as the taxable earnings of the employees because they involve a profit element or they are to be ignored because they are reimbursement of expenditure: (1) a broad brush approach is necessary in view of the practical constraints of devising a scheme that can apply to a number of different employees and is administratively workable; (2) the test is not whether the allowance produces a mathematical equivalence with the expenditure; (3) rather, the question is whether the scheme was constructed in a genuine endeavour to produce an equivalence between the allowance and the expenditure and to apply with approximately equal justice to all within its scope."

HMRC's case was that the FTT failed to address theDonnelly test and, had it done so, the FTT could only properly have come to the conclusion that the payments failed the test. Lord Justice Etherton did not agree. His comment with respect to this (with which the other judges agreed) was:

"I consider it is quite impossible, however, fairly reading the FTT's decision, to say that the FTT failed to address the relevant issues mentioned in Donnelly or to say that there was no material on which the FTT could properly have come to the decision which it did. It weighed up all the arguments addressed to it by Mr Adkinson, on behalf of HMRC, challenging the degree of linkage between the amount of the lump sums and actual business use. Critically, it found as facts that the scheme was a bona fide scheme, that the lump sum element was designed precisely in order prevent staff making a personal profit by maximising their travel on a 40p. per mile basis, and that the scheme was designed with a view to administrative convenience. The FTT expressly recognised that it was carrying out an evaluation exercise, in which there was evidence and there were arguments capable of pointing to different conclusions. It was fully entitled, in the light of the evidence as a whole, to come down finally in favour of the conclusion that, on general principles, the lump sum payments were not earnings. It follows that it did not make an error of law on that issue, and that it was right to allow CESDL's appeal.

It also follows that, since there could only be an appeal to the UT for an error of law, the UT had no jurisdiction to set aside and to re-make the decision on the earnings point. I would, therefore, allow the appeal."

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1429.html

3. BUSINESS TAX

3.1. Acceptable GAAP for offshore reporting funds (Offshore Funds Manual OFM13550)

A Reporting Fund is required to prepare accounts in accordance with international accounting standards (IAS) or to prepare accounts in accordance with the generally accepted accounting practice (GAAP) specified in the application.

The starting point for the calculation of reportable income for a period of account is:

  • 'total comprehensive income for the period' where the accounts are prepared under IAS
  • the entries that equate to 'total comprehensive income for the period' where IAS is not used.

HMRC has updated its list of acceptable GAAP approved for use by offshore reporting funds. Where possible, terms under each GAAP that equate to 'total comprehensive income for the period' have also been identified.

If an application is being considered using a different GAAP to those already listed, or using a different term to those already identified under a listed GAAP, it is important to explain why the entries identified in the application are considered to equate to 'total comprehensive income for the period'.

www.hmrc.gov.uk/collective/list-gaaps.pdf

3.2. Draft Patent Box statutory instrument

HMRC has published a draft statutory instrument for comment by 4 December 2012. Patents granted by certain other EU member states are approved for the purposes of the patent box regime. Some of those states operate more than one process for granting those rights, one which affords a similar level of scrutiny to that provided by the IPO or EPO and another less rigorous process. Where this is the case, the order makes clear that only rights granted under the more rigorous process can qualify.

www.hmrc.gov.uk/drafts/draft-si-patent-box.pdf

3.3. Draft statutory instrument concerning unrelieved surplus advanced corporation tax

Draft regulations have been issued for comment by 7 December 2012. They amend the Corporation Tax (Treatment of Unrelieved Surplus Advance Corporation Tax) Regulations 1999 (S.I. 1999/358) to change the definition of a group to allow the parent company of group to be resident in an EEA state other than the United Kingdom.

www.hmrc.gov.uk/drafts/draft-sact.pdf

3.4. Double Taxation Agreement between UK and India

A Protocol to the Double Taxation Agreement between the UK and India was signed in London on 30 October 2012 (updating the 1993 Protocol) by David Gauke MP, Exchequer Secretary to the Treasury and Dr Jaimini Bhagwati, High Commissioner for India to the United Kingdom. It comes into force when both countries have completed their legislative process.

www.hmrc.gov.uk/taxtreaties/news/india.htm

www.hmrc.gov.uk/taxtreaties/signed/uk-india-dta.pdf

3.5. Britain & Germany call for international action to strengthen tax standards

HM Treasury has published the following joint statement by the United Kingdom and Germany:

After discussing their concerns about the erosion of corporate tax paid by large international companies at a meeting in Berlin last week, German Finance Minister Wolfgang Schäuble and British Chancellor of the Exchequer George Osborne called at the G20 meeting today [5 November 2012] for concerted international cooperation to strengthen international standards for corporate tax regimes.

Britain and Germany want competitive corporate tax systems that attract global companies to our countries, but also want global companies to pay those taxes. That is best achieved through international action in the G20 and other relevant international fora to ensure strong standards.

Global companies are a significant source of growth, investment, employment and tax in Germany, Britain and the EU as a whole. However, international tax standards have had difficulty keeping up with changes in global business practices, such as the development of e-commerce in commercial activities. As a result, some multi-national businesses are able to shift the taxation of their profits away from the jurisdictions where they are being generated, thus minimising their tax payments compared to smaller, less international companies.

At the G20 meeting, Ministers Schäuble and Osborne, thus called on their G20 colleagues to back the Organisation for Economic Cooperation and Development's (OECD) work on identifying possible gaps in the standards as a first step in promoting a better way of dealing with profit shifting and the erosion of the corporate tax base at the global level. Britain and Germany back the OECD – BEPS (tax base erosion and profit shifting) initiative of the OECD and expect its first analysis report to the next G20 meeting in Russia in February 2013.

Britain and Germany will continue to work together, and with our partners in the EU, G7 and G20, to maintain momentum on strengthening international standards.

http://www.hm-treasury.gov.uk/chx_statement_051112.htm

3.6. Science and technology

The Chancellor of the Exchequer spoke to the Royal Society on 9 November 2012 discussing a number of science and technology areas and mentioning the R&D and patent box tax regimes in addition to a number of science & technology related funding initiatives. He challenged the scientific community of Britain to lead the world, (with government support) in the following eight areas:

  • The Big Data Revolution and energy efficient computing;
  • Synthetic Biology;
  • Regenerative Medicine;
  • Agri-Science;
  • Energy Storage;
  • Advanced Materials;
  • Robotics and Autonomous Systems;
  • Satellites and commercial applications of Space

www.hm-treasury.gov.uk/speech_chx_091112.htm

4. VAT

4.1. VAT group provisions

HMRC is in the process of updating its guidance for the changes introduced in Finance Act 2012 s199 (effective for supplies made on or after 17 July 2012). The new legislation brings on to the statute a concession previously operated in practice. It sets out how the reverse charge will apply on an intragroup supply. It is particularly relevant for groups which are partially exempt. It provides that where a supply giving rise to the reverse charge is made (a cross border supply) and the representative member of the VAT group satisfies HMRC as to the value of the bought in supplies, then:

  • where the value of the bought in supply is at least open market value, the value of the intragroup supply is that bought in value;
  • where the value of the supply is less than open market value, HMRC may direct that it be valued at open market value.

www.hmrc.gov.uk/news/new-guid-reverse-vat.htm

4.2. VAT on fraudulent credit card transactions

The First-tier Tribunal has referred several questions to the CJEU concerning whether supplies paid for by fraudulent use of credit cards were supplies for VAT purposes.

The dispute concerns goods supplied by Dixons which were paid for by the fraudulent use of credit cards. In the disputed instances no chargeback by the merchant acquirer (the intermediary between Dixons and the bank issuers of the visa credit cards) was made to Dixons concerning the fraudulent use of the credit card. Neither was there a chargeback by Amex in the case where Dixons had a direct relationship with that credit card issuer. Thus Dixons had received full payment for the supplies. The repayment claim amounts to £1,940,921 declared on sales in the period 13 November 2005 to 30 November 2008.

The questions to be referred are:

  1. Is Article 14.1 [of the principle VAT Directive] to be interpreted as applying when the physical transfer of goods is obtained by fraud in that the payment provided by the transferee is by means of a card which the transferee knows he has no authority to use?
  2. When the physical transfer of goods is obtained by fraudulent use of a card, is there a "transfer of the right to dispose of tangible property as owner" within Article 14.1?
  3. Is Article 73 to be interpreted as applying when payment is obtained by the transferor of goods under an agreement with a third party to make such payment in respect of card transactions notwithstanding that the transferee of the goods knows that he has no authority to use the card?
  4. When payment is made by a third party pursuant to an agreement between the transferor of the goods and the third party as a consequence of the presentation to the transferor of a card which the transferee of the goods has no authority to use is the payment obtained from the third party "in return for the supply" within Article 73?

It is Dixons' contention that:

  1. The presence of a legal relationship requiring reciprocal performance is a fundamental criterion to the identification of a "supply of goods" within the meaning Article 14.1. This follows from the case law of the Court, in particular the judgment of the Court in Tolsma (C-16/93) [1994] ECR I-743;
  2. The existence of a supply will primarily be determined by the terms of the agreement between the retailer and the cardholder. That follows from the approach adopted by the Court in Chaussures Bally SA v Belgian State (C-18/92) [1993] ECR I-2871 where the Court determined the "taxable amount" by reference to the agreement between the supplier and the customer and not by reference to the card payment system. An obligation to make payment through the card payment system does not, ipso facto, give rise to a supply under Article 14.1, which, as with any supply for VAT purposes, requires reciprocal performance;
  3. In connection with the second question it has already been held by the Court that obtaining goods by illegal means (theft) does not equate to a transfer of the right to dispose of tangible property as owner (see British American Tobacco International Limited and another v Belgian State (C-435/03)) [2005] ECR 1-7077. There is no legitimate distinction to be drawn between goods obtained illegally by theft and those obtained by fraud by reference to the objective facts associated with card fraud and theft;
  4. With respect to the third question and in accordance with the settled case law of the Court, any payment only forms part of the "taxable amount" to the extent that there is a direct link between the goods provided and the consideration received (for example in Naturally Yours Cosmetics Ltd v Customs and Excise Commissioners (C-230/87) [1988] ECR 6365). In the circumstances of a fraudulent card transaction there is no reciprocal assumption of any obligation by the fraudster in connection with the payment for the goods and thus no direct link between any sum received by the retailer and the release of the goods;
  5. With respect of the fourth question, it will be critical to identify what the payment is made for. The Court has already determined that the payments made by retailers through the card payment system are made in return for, inter alia, a payment guarantee (see paragraph 9 of the judgment in Bally and paragraph 73 of the opinion of the Advocate General in Finanzamt Essen-NordOst v GFKL Financial Services AG (C-93/10)). The payment of a sum against that guarantee is not a payment in discharge of any third party obligation (i.e. one owed by the fraudster or the cardholder) and is not part of the taxable amount for the goods.

Dixons paid the credit card intermediary or company a merchant services charge covering the issuing bank's interchange fee, the card scheme fee and the intermediary's fee. No chargeback was possible under the arrangement, and a significant element of the bank interchange fee was the fact that there could be no chargebacks in the case of fraudulent use of credit cards. This element was described by Dixons as in effect a guarantee.

HMRC contends that there is plainly a supply of goods. They also contend that the situation involving credit cards is different to a theft of goods. A transaction is also not prevented from being a supply because it involves some fraud and is therefore "unlawful".see e.g. Optigen (Case C- 354/03) [2006] They also contend that the supplier received payment of the price of the goods from the third party bank. That payment was directly linked to the making of the supply of the goods to the customer, who had used a card as the means of payment for the goods.

HMRC also contend that the payment is manifestly directly linked to the transaction constituting the supply, and, in particular, the transfer of the goods to the customer by the supplier. The fact that the service provided by a third party bank can be described as a "payment guarantee service", and is paid for, does not support the conclusion that the payments received by the supplier are not consideration for the transfer of goods to the customer within the meaning of Article 73.

www.financeandtaxtribunals.gov.uk/judgmentfiles/j6814/TC02337.pdf

4.3. VAT on European Tour Operator subscriptions

The Upper Tribunal has referred the matter of whether membership subscriptions to the European Tour Operators' association were subject to VAT at the standard rate (as HMRC contend) back to the First-tier Tribunal for a further finding of fact.

The particular point requiring a further finding of fact is amplification of the FTT's reasoning and conclusions on whether the primary purposes of the association and any connection with a subsidiary purpose of the association, can satisfy the requirement for exemption . The issue concerned the weight to be given to the clear difference in wording between Item 1(d) and Note 5, in VATA Sch9 group 9 (subscriptions to trade unions and other public interest bodies).

Item 1(d) requires that the primary purpose of the association is to make representations to government on legislation and other public matters which affect the business or professional interests of its members. However this does not apply (according to note 5) unless the association restricts its membership wholly or mainly to individuals or corporate bodies whose business or professional interests are directly connected with the purposes of the association.

The Upper Tribunal judge (Justice Henderson) also commented: "a substantial protection for HMRC may be available in Article 13(A)(2)(b) of the Sixth Directive (now Article134(a) of the Principal VAT Directive), which provides that the supply of services or goods shall not be granted exemption under, inter alia, paragraph (1)(l) if "it is not essential to the transactions exempted". There is a considerable amount of EU jurisprudence on the interpretation of this restriction as it applies in relation to other exemptions under Article 13: see BASC at paragraphs [27] to [34]. There may be room for an argument – I put it no higher – that, in the context of Article 13(a)(1)(l), the "transactions exempted" are to be regarded as those goods or services which are supplied pursuant to the aims which qualify for exemption (in the present case, aims of a political nature), and that only supplies which are essential to the attainment of those aims are to be granted exemption. On such an approach, ancillary fund-raising activities, although of obvious assistance to the attainment of the Association's political aims, would appear to be disqualified, because such activities are not essential to the advancement of political aims."

www.bailii.org/uk/cases/UKUT/TCC/2012/377.html

4.4. VAT on golf tuition fees

The Upper Tribunal has confirmed the decision of the First-tier Tribunal in the case concerning whether VAT was due on golf tuition fees provided through Marcus Webb's partnership business (he was in partnership with his wife) but where the tuition services was actually provided by Richard West who was an employee of this business.

In the circumstances of the case Mr West had his own personal golf tuition clients (to whom he provided golf tuition on a self-employed basis) and it appears he provided the tuition services to the Marcus Webb business on a freelance basis. The Upper Tribunal judge commented that there was little analysis at the First-tier Tribunal of the business relationship between Marcus Webb's business and Richard West. However in view of the length of time since that hearing and the relatively small sums involved he decided not to refer it back for a further finding of fact. In any event, the critical point turned on whether Richard West provided his services on behalf of the Partnership or on his own account.

VATA Sch 9 Group 6 item 2 exempts: "the supply of private tuition, in a subject ordinarily taught in a school or university, by an individual teacher acting independently of an employer."

No point was taken by HMRC that the golf tuition provided by Mr West fell outside the concept of "school or university education" as elucidated by the ECJ. The Upper Tribunal judge (Justice Henderson) found this surprising, but as the point was not in issue he said no more about it.

Justice Henderson drew attention to the CJEU case of Haderer Case C-445/05, [2007] and in particular the requirement for an individual acting in a freelance capacity to be providing tuition on his own account and at his own risk.

In Justice Henderson's judgment application of these principles of EU law led inexorably to the conclusion that the present appeal must fail. The relevant tuition was not provided by Mr West on his own account, because he provided it on behalf of the Partnership and in fulfilment of contracts entered into between the Partnership and its customers.

He discussed the 2010 CJEU decision in Eluiz (Case C- 473/08). This case involved a self-employed engineer providing tuition through an educational body. That case establishes that the mere fact that the provider of tuition has self-employed status under national law is not in itself enough to show that the tuition must have been provided "privately". Secondly, if the tuition in question is provided in the context and for the purposes of training courses offered by another body, it is that body rather than the individual teacher which has to be regarded as providing the tuition, and it cannot be regarded as provided "privately" by the teacher.

www.bailii.org/uk/cases/UKUT/TCC/2012/378.html

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