UK: Weekly Tax Update - Monday 3 December 2012

Last Updated: 5 December 2012

1 General news

1.1 Agent view

HMRC has recognised the concerns raised by agents in response to last year's consultation - 'Establishing the future relationship between the tax agent community and HMRC' about proposals for an 'agent view' (bringing information together on agents and their clients) and improving standards.

This work will now proceed at a slower pace and HMRC has made a commitment to the professional agent bodies through the Joint Tax Agent Strategy Steering Group (JTASSG) that there will be full transparency and consultation. 60 agents have been selected for a pilot, each with at least 200 self-assessment clients where either less than 80% of clients submit returns on time or less than 60% of clients pay on time.

www.hmrc.gov.uk/news/agent-view-pilot.htm

1.2 Removing Barriers to Legacy-Giving: A Report to the Department for Culture, Media and Sport

The culture secretary, Maria Miller, is supporting eight out of ten proposals made by a report by Legacy10 into legacies, including the appointment of a 'charities tsar' to coordinate government policy on charities. Other accepted recommendations include encouraging the top 250 companies to provide assistance to members of their staff who wish to make charitable gifts through their wills.

Mrs Miller refused to endorse two of the suggestions put forward by the report. These were a top tax rate cut for those who have made financial commitments to charity over a number of years, and a requirement on businessmen nominated for a knighthood to show evidence of charitable involvement.

Mrs Miller said: "Some of our arts and heritage bodies have built great relationships with their supporters in this area, but for all that, only 7 per cent of people currently leave a legacy in their will. And too many companies and organisations in the arts and heritage world still have no legacy giving scheme in place.

So they need to get better at asking for this kind of support. I want many more cultural organisations to benefit from legacies, and we will be happy to help make this a core element of greater giving to culture across society as a whole"

Mrs Miller will respond in full to the recommendations in the report by the end of January.

The report by Legacy10 is one of three commissioned by Miller's predecessor, Jeremy Hunt, to look at ways to encourage philanthropy to support the cultural sector. The other two are as follows:

  • How to improve digital giving and smaller donations, being carried out by Matthew Bowcock, chair of the Community Foundation Network;
  • how to strengthen fundraising outside London being carried out by Peter Phillips, chair of Birmingham Opera Company.

www.legacy10.com/sites/default/files/downloads/Removing%20Barriers%20to%20Legacy-Giving_0.pdf

2 IHT and trusts

2.1 Inheritance Tax (Market Makers and Discount Houses) Regulations

Regulation SI 2012/2093 has been issued amend the Inheritance Tax Act 1984 to apply Business Property Relief to any property if the business concerned is a market maker anywhere within the European Economic Area.

www.legislation.gov.uk/uksi/2012/2903/pdfs/uksi_20122903_en.pdf

3 PAYE and employment matters

3.1 HMRC Employment Related Securities bulletin November 2012

HMRC has issued its November Employment Related Securities bulletin which covers:

  • New telephone number.
  • Scheme approvals – company resolutions.
  • Scheme approvals – process.
  • Share Incentive Plan – Notice to participants.
  • Real Time Information and PAYE deadlines – expatriate workers and employees receiving employment-related securities.

www.hmrc.gov.uk/shareschemes/erss-bulletin4.pdf

3.2 Penalties for late reporting under real time information (RTI) reporting

HMRC has now published guidance on late and inaccurate returns for 2012/13 and 2013/14.

Penalties for late returns 2012/13 and 2013/14

There will be no change to the penalties for late filing of returns for the tax years 2012/13 and 2013/14. The current penalty regime will continue to apply at the tax year end. There will be no penalties if in-year Full Payment Submissions (FPSs) are submitted late.

Employers and pension providers must submit an FPS 'on or before' they pay an employee or pensioner. If they still have information to send after 5 April, they can send this on an FPS until 19 April, then on an Earlier Year Update after that. To avoid a late filing penalty for 2012/13 and 2013/14, they must report the final payment made to an employee or pensioner by 19 May following the end of the relevant tax year.

Penalties for inaccurate returns 2012/13 and 2013/14

For the tax year 2012-13, HMRC will not charge penalties for inaccuracies identified on in-year FPS. But penalties may be charged after the end of the tax year, based on the final FPS for the year.

Penalties for inaccuracies may apply to in-year returns from the 2013-14 tax year. HMRC will use the same considerations which apply now under Schedule 24, Finance Act 2007 and continue to use a risk-based approach to identify employers who may be submitting incorrect returns.

www.hmrc.gov.uk/news/payerti-payments.htm

4 Business tax

4.1 Registering for Self-Assessment and National Insurance using form CWF1

Recent analysis has shown that a high proportion of the CWF1 forms received by HMRC are old versions which sometimes include incorrect contribution rates or exception levels.

From 1 February 2013 HMRC's Central Agent Authorisation Team (CAAT) will be returning 'old' or 'incorrect' versions of the CWF1. A covering letter will accompany the returned CWF1 explaining that HMRC is unable to accept the form and suggesting alternative methods for registering as self-employed.

HMRC recommends using the online tax registration service to register a business for Self Assessment and Class 2 National Insurance.

https://online.hmrc.gov.uk/registration/newbusiness/introduction

4.2 Assignment of trademarks, intangible asset regime, tax avoidance and the unallowable purpose test for loan relationships

The First-tier Tribunal has considered the case of Iliffe News and Media Ltd (and others) involving the tax treatment of the transfer of intangible assets from one company to another and the purported creation of new intangible assets after that event, and whether the CGT or intangible asset regime applied to any of the transactions involved. It also considered the loan relationship anti-avoidance provisions with respect to loans arising from the transactions.

In September 2003 Iliffe News and Media Limited (INML), an intermediate holding company of a newspaper group had four 100% subsidiaries - Herts and Essex Newspapers Limited ("HENL"), Staffordshire Newspapers Limited ("SNL"), Cambridge Newspapers Limited ("CNL", which acquired a new subsidiary in April 2004 from a third party) and LSN Media Limited ("LSN" – acquired in August 2004 from a third party). Each subsidiary held unregistered trade marks ("UTMs" - titles of newspapers and other publications known as mastheads) the expenditure on the creation of which had been incurred before 1 April 2002 in all cases.

During the period September 2003 to August 2005, the subsidiaries assigned the UTMs to INML for £1, maintaining that these were CGT transactions resulting in no-gain no loss transactions under TCGA s171. It was contended that the assignment was in respect of the UTMs and also of goodwill associated with those UTMs. A key part of the contention on behalf of HMRC was that the assignments were void because the assets assigned were unregistered trademarks.

The UTMs were then licenced back to the subsidiaries for terms of between four and eight years in return for what the taxpayer contended were market value premium payments (and in one case a licence fee) by the subsidiaries. The amounts due under these licence arrangements were left outstanding on loan account. The subsidiaries contended they had acquired a new intangible asset in the form of a licence agreement which under the terms of what was FA02 Sch29 s120(2) (now CTA09 s883(3)) was expenditure on the acquisition of an intangible asset incurred on or after 1 April 2002. A key part of the contention of the taxpayer companies was the interpretation of what is now CTA09 s883(3) (s883 gives details on when assets are treated as created or acquired as a result of expenditure incurred) . That section (as per FA2002) reads as follows:

An intangible asset [to which this section applies] is treated as created or acquired on or after 1 April 2002 so far as expenditure on its creation or acquisition is incurred on or after that date.

INML contended that its receipts (premiums or licence fees) from the subsidiaries in respect of licences were capital receipts (in respect of part disposals) and not intangible asset regime receipts as they related to assets acquired by it which were pre FA2002 assets under what was FA02 Sch29 para 117, 118 and 121 (now CTA09 s882, s884, and s885).

The net result contended by the taxpayer companies was that deductions for tax purposes were created under the intangible asset regime with no taxation of the corresponding credits.

The Tribunal considered the following points (in summary):

(a) The assignments of the UTMs were void because they were assignments of unregistered trademarks.

There is a common law rule that states that goodwill cannot be split up so that a portion of it passes with a trademark when that trademark is transferred. Statutory law has since been changed to specify that this is possible in respect of a registered trademark, but not in respect of an unregistered trademark (Trade Marks Act 1994 s26(6)). Case law in respect of transfers of trademarks was examined and the Tribunal concluded that the assignments were void as to the assignability of the subject matter as they could not be assigned with all the goodwill in law. This meant that the result of this appeal was fully in HMRC's favour –the assignments and agreements did not create intangible asset regime debits for the subsidiaries. However the Tribunal went on to consider six other matters in case they were wrong on this point (a further point originally considered – (d) below) concerned an accounting issue which HMRC withdrew).

(b) Whether there were unlawful distributions by the subsidiaries which INML held on trust for them. HMRC contended that the value of the UTMs was in excess of the value standing to the credit on each subsidiary's profit & loss account, and therefore the distributions were unlawful. The Tribunal examined company law in force at the time and concluded the distributions were not unlawful.

(c) Whether the premium payments (licence fee) were in excess of market value and represented an unlawful distribution by the subsidiaries.

The licences had been valued on the basis of a hypothetical open market transaction attributing all the value of the business contributed by the intangible asset as attributed by the masthead. There was no ready market to make comparisons for these transactions as they are typically effected by way of transfer of the whole company. The Tribunal reached the conclusion that, while the values were in excess of market value, they were not so unreasonably large as to be unjustifiable and did not represent unlawful distributions of capital by the subsidiaries.

(d) This point concerning the FRS5 requirements on distributions was withdrawn by HMRC.

(e) Whether the premiums (licence fees) payable by the subsidiaries represented a capital receipt or a revenue receipt in INML's hands. The Tribunal concluded they were capital receipts in respect of pre April 2002 intangible assets.

(f) Whether the UTM licences created for licensing back to the subsidiaries were intangible assets in the hands of the subsidiaries. The taxpayer contended that what is now s883(3) (referring to when assets are treated as created or acquired) as set out above should be read separately with respect to assets created and assets acquired, so that where expenditure is incurred after April 2002 on an asset acquired, it could be an intangible asset as it was a new asset. However the asset was created by INML in order to sell on to the subsidiaries, and as what was FA02 Sch29 para 118(2c) (now CTA09 s882(5) read in conjunction with FA02 Sch29 s120(2) (now CTA09 s883(3) could only apply to the expenditure incurred on its creation (not the expenditure on its market value), the amount that qualified was only this expenditure, not the amount incurred on its value via an intragroup transaction. As there was no such expenditure, there were no allowances under FA09 Sch29. Note since the period covered by this case, FA2006 introduced what was FA02 Sch29 para 127A (now CTA09 s893) specifying that the value of assets created out of pre April 2002 assets cannot be assets subject to the intangible asset regime.

(g) Whether what was FA02 Sch19 para 111 (now CTA09 s864) operated to ignore these arrangements as they were tax avoidance arrangements. The companies contended that the arrangements were undertaken with commercial motives to the fore, in order to prevent competitors and representatives of the employees determining the profit levels of the business. While this may have been an initial intention, the Tribunal concluded that the subsequent design of the arrangements and input of external advisers meant that the obtaining of an intangible asset regime deduction without a corresponding credit within the group was a main purpose of the transactions, and that therefore the arrangements were to be ignored for intangible asset regime purposes.

(h) The Tribunal concluded that although there was a tax avoidance purpose for the intangible asset regime, there was no amount of loan relationship debit attributable to a tax avoidance purpose for the purpose of the loan relationship regime, as the loans did not constitute a part of the tax avoidance purpose with respect to the assignment and licence back of the UTMs. The loan relationship amounts were generated as a result of the commercial transactions to effect the licence arrangements at market value.

www.bailii.org/uk/cases/UKFTT/TC/2012/TC02365.html

4.3 Sponsorship agreement, wholly and exclusively and application for costs

Southwest Telecommunications Group Ltd claimed a deduction for sponsorship payments to a major rugby club. In May 2008 HMRC began an enquiry into the company's return and in March 2010 they issued a notice of amendment rejecting the claim on the grounds that the expenditure was not wholly and exclusively for the purpose of its business. The company appealed.

In January 2012 HMRC decided not to contest the appeal as a result of new evidence available from witness statements submitted to the Tribunal on 31 May 2011. However they did not notify the company until January 2012 that they would not be contesting the case. The company applied for costs, contending that HMRC had acted unreasonably in not settling the case sooner.

The First-tier Tribunal accepted this contention. Judge Raghavan observed that HMRC had received the company's witness statements in June 2011 and held that HMRC should have settled the case within 28 days of receiving the witness statements. Accordingly he directed that HMRC should pay costs from 20 July 2011. The unreasonable conduct arose from HMRC allocating and organising the resources it had to deal with its appeals workload in such a way that the appraisal of evidence, which was not overly voluminous or complex, did not take place until shortly before the substantive hearing.

www.bailii.org/uk/cases/UKFTT/TC/2012/TC02370.html

Whether the Upper Tribunal had erred in law in considering the evidence needed to exclude a loan relationship from the loan relationship regime The Court of Appeal has confirmed the earlier decisions of the First-tier and Upper Tribunals in the case of MJP Media Services Ltd (see item 3.1 of Informal 12 September 2011 for a summary of the Upper Tribunal decision). The conclusion was that rather than being an appeal on an error of law, this was an appeal on an error of fact, and that the First-tier and Upper Tribunals were entitled to reach the conclusions they did.

Lord Justice Etherton gave the main judgment. He commented that Counsel for the appellant submitted an alternative argument, which could have been a promising avenue for discussion for the company. However as this argument was an entirely new argument and not included in the Statement of Case, it could not be argued before the Court. The new argument was that the Loan Agreement itself established a loan agreement within s81 FA96 (now CTA09 s303 setting out the definition of a 'money debt' for the purpose of the loan relationship regime). However if the argument had been run, HMRC would no doubt have wanted to explore: "in the evidence, including cross-examination, when the Loan Agreement was actually made, whether the amount mentioned was truly a loan or an advance or was part of some artificial arrangement tied to the partial waiver of the loan, and whether there was any scope for the application of the provisions of paragraph 13 of Schedule 9 to FA 1996 dealing with non-business loans and tax avoidance transactions".

Lord Justices Lewison and Rix agreed. The lesson to take from this case is that there should be proper documentation and evidence supporting the character of intercompany transactions if they are to be effective for tax purposes.

www.bailii.org/ew/cases/EWCA/Civ/2012/1558.html

5 VAT

5.1 Whether input VAT on residual costs incurred by the finance provider has a direct and immediate link to goods subject to hire purchase finance arrangements.

The Upper Tribunal has considered the case of HMRC v Volkswagen Financial Services UK Ltd. It overturned the First-tier Tribunal's decision on the fair and reasonable method of applying partial exemption calculations to residual input tax in the case of a finance company's activity in providing car hire purchase finance.

The Upper Tribunal concluded that the First-tier Tribunal was wrong in its characterisation of the economic reality of VWFS's business. It should have held that, for these purposes, the economic reality was that VWFS was engaged in a finance business and not in the business of selling cars on finance terms. VWFS sold vehicles at a price fixed by the dealer. It had no say in the price, and the price was irrelevant to its finances. Moreover, no profit was made by VWFS in respect of vehicle sales. Accordingly, the economic reality of VWFS's business was that it was running a finance business from which it made all its profits.

Accordingly, the residual cost inputs in this case had no direct and immediate link with and were not cost components of the taxable part of VWFS's business, save for the small taxable elements of its finance business. For this reason, VWFS's PESM which attributed 50% of the residual input costs to the taxable outputs would not be a fair and reasonable apportionment.

www.tribunals.gov.uk/financeandtax/Documents/HMRC v Volkswagen Financial Services UK Ltd.pdf

5.2 Input VAT recovery on corporate acquisition and due diligence costs

A company set up to effect a management buyout (Cloud Electronics Holdings Ltd's acquisition of Cloud Electronics Ltd) has succeeded in overturning HMRC's refusal to allow input VAT recovery on various costs of the management buyout process. The holding company was incorporated on 29 February 2008 and registered for VAT from 1 March 2008. The costs related to:

  • Legal fees relating to consultancy agreements and the management buyout, pursuant to engagements by the buyout team and the holding company (although the holding company had not been formed at the date of the engagement letter).
  • Corporate finance advice provided to the buyout team and Holdco, pursuant to engagements by the buyout team and the holding company (although the holding company had not been formed at the date of the engagement letter).
  • Due diligence work carried on behalf of the buyout team and the financing bank (RBS).
  • Legal fees in respect of lawyers engaged by the financing bank (RBS) where the ultimate beneficiary of the services was the holding company which paid the costs in full.

Despite the fact that some of the engagement letters were dated before the incorporation of Holdings, the Tribunal found that the vast majority of the work was carried out after its incorporation, and the tax points for invoices were all after incorporation. The Tribunal also found that the holding company was carrying on an economic activity (it raised management fees that went further than managing debt). The tribunal concluded that the VAT was recoverable in full.

www.bailii.org/uk/cases/UKFTT/TC/2012/TC02368.html

5.3 ECJ and VAT group cases

Sweden largely only permits entities operating in the financial and insurance sectors to form VAT groups. The Advocate General (in case C-480/10) has recommended that this be regarded as contrary to the VAT directive and that, if offered, VAT grouping should be properly open to all sectors.

http://curia.europa.eu/juris/document/document.jsf?text=&docid=130521&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first∂=1&cid=447421

Ireland permits non-taxable persons to be members of a VAT group. The Advocate General (in case C-85/11, the same AG Jaaskinen as in the case against Sweden) has recommended that this is not against the principles of the VAT Directive (as contended by the European Commission). The opinion includes the following comment:

"....In principle the nature of the activities of a legally independent holding company as taxable or non taxable does not depend on whether it belongs to a VAT group or not. (29) Nevertheless, a holding company belonging to a VAT group can purchase taxable goods and services without VAT, whereas a holding company not belonging to a VAT group cannot. Through its membership in a VAT group, a non-taxable person becomes an entity regulated by the European Union VAT regime.

However, in my opinion it is not an anomaly that non-taxable persons can belong to a VAT group. This is so because any taxable person may be engaged in activities falling within the scope of VAT and activities falling outside of the scope of VAT. (30) In this respect no distinction can be made between an ordinary taxable person and a VAT group".

If the Court follows the AG's opinion in the Irish case, this will be good news for UK VAT group treatment. In the meantime UK law continues to permit the inclusion of non taxable persons in a VAT group.

http://curia.europa.eu/juris/document/document.jsf?text=&docid=130522&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first∂=1&cid=447859

5.4 Changes to VAT invoicing requirements

SI 2012/2951 has been issued to introduce simplified and electronic invoicing arrangements in accordance with EU requirements with effect from 1 January 2013. It follows an earlier consultation.

www.legislation.gov.uk/uksi/2012/2951/pdfs/uksi_20122951_en.pdf

5.5 Changes to supply of goods transferred for processing to another member state

SI 2012/2953 has been issued to amend SI 1992/3111, changing (with effect from 1 January 2013) the circumstances when transfers of goods to other member states will not be regarded as a supply of goods.

www.legislation.gov.uk/uksi/2012/2953/pdfs/uksi_20122953_en.pdf

5.6 Changes to VAT notice 700/1 and registration requirements for non-established taxable persons

HMRC has updated VAT notice 700/1 (Should I be registered for VAT?) amongst other things for the change introduced from 1 December 2012 for the registration requirements for those who are not normally resident in the UK and do not have a UK establishment. There is now no limit before which registration is required for this category of person making taxable supplies in the UK, so they are required to register if they make any taxable supplies.

http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true&_pageLabel=pageVAT_ShowContent&id=HMCE_CL_000086&propertyType=document#P12_342

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