UK: Weekly Tax Update - Monday 20 May 2013

Last Updated: 4 June 2013
Article by Smith & Williamson


1.1 Chancellor's letter to EU Finance Ministers on fighting tax avoidance and evasion

George Osborne has written to Michael Noonan (The Irish Minister of Finance) in preparation for the G7 Meeting on 14 May in Dublin, concerning the shared agenda on tackling global tax evasion and avoidance. The letter comments that:

  • The current proposals for amending the Savings Tax Directive and associated negotiating mandate should be agreed.
  • There should be a quick move to embed multilateral automatic exchange of information as a new global standard, based on the agreements with the US. The proposal is to pilot such processes between the G5 European countries basing the model on that agreed with the US. The British overseas territories and the Isle of Man have committed to join the pilot and Guernsey is expressing an interest.
  • Work should be undertaken to improve the availability of information on beneficial ownership. The comment is made that the British overseas territories have committed to review legal and enforcement arrangements on beneficial ownership and produce appropriate action plans.
  • Effort should be made to send a strong political signal that artificially shifting profits to very low tax jurisdictions is not appropriate behaviour and that updating of the international tax framework where it is not working should be encouraged.

1.2 OTS and its comments on tax avoidance to the public accounts committee

On 1 May the Chairman of the OTS, Rt. Hon. Michael Jack, wrote to the Chair of the Public Accounts Committee, Margaret Hodge MP, about the recent PAC report 'Tax avoidance: the role of large accountancy firms'.

Although the report focused on tax avoidance, it also made some references to the work of the OTS. Michael Jack's letter sets out a more accurate picture of the work of the OTS than that contained in the report.

1.3 Tabled amendments to Finance Bill 2013

Amendments proposed for Finance Bill 2013 cover the following:

Transfer of Assets Abroad

This amendment introduces an additional change to the definition of a 'person abroad' so that a person abroad is either:

  • a person who is resident outside the United Kingdom; or
  • an individual who is domiciled outside the United Kingdom.

Above the line credit

Under the current wording of the Bill the net benefit to a company of the credit could be different depending on whether the credit was used to discharge a corporation tax liability or was a payable amount. A new clause is therefore introduced to ascertain the net benefit. The net benefit of the credit to a company is intended to be consistent irrespective of any corporation tax liability.

Video games relief

In response to enquiries as a result of the need to comply with EU state aid requirements, new clauses are introduced to permit a specified date for the introduction of the regime and for any necessary amendments.

Tax advantaged share schemes

Part 6 of Schedule 2 is concerned with the Share Incentive Plan (SIP) code in Schedule 2 ITEPA. It implements the OTS recommendation to abolish the current statutory limit on the reinvestment of cash dividends arising on shares held under SIPs into further SIP 'dividend shares'.

Companies may, however, apply their own limit for this purpose. It is reasonable that they should be allowed this flexibility, for example to control the number of shares held by employees. Amendments are therefore included in response to representations that the current wording of the Bill concerning the way companies may apply this limit is unnecessarily restrictive.


2.1 Consultation on the transfer of savings from a Child Trust Fund to a Junior ISA

At Budget 2013 the Government announced that it would consult on allowing the transfer of savings from Child Trust Fund (CTF) accounts into Junior ISAs.

The consultation document has now been published.

The Government acknowledges that in the interest of fairness, children with CTFs should not be prohibited from holding a Junior ISA if this account would better suit their long- term interests than a CTF. However, it recognises that there are a range of factors to be considered before making any changes to the current rules, including any impact on the viability of the CTF market as a whole, and the interest of the wider CTF holding population.

The stated aim of the consultation is to gather views on whether it should be possible to transfer funds held in a CTF into a Junior ISA and also welcomes views and evidence on the proposals for how transfers should take place. The Government believes that for reasons of simplicity and fairness in terms of the distribution of tax advantages, a child should not be entitled to hold both a CTF and a Junior ISA. It therefore does not propose to consider any options which would allow a child to hold both types of account concurrently.

In addition, the Government does not propose to reconsider its decision to end new CTF eligibility from 2011, given that the resumption of new CTF eligibility (and the associated Government payments to accounts) remains unaffordable. Therefore, this consultation will not consider whether any child who is currently ineligible for a CTF should be entitled to hold such an account, or whether funds held in a child's Junior ISA should be transferable to a CTF.

The consultation closes on 6 August 2013, at which time the Government will consider all responses and publish a 'summary of responses' document. This will set out how the Government intends to proceed, as well as the proposed next steps. It is anticipated that any changes to the current position will require new legislation, and this will determine the timetable for any changes arising from the consultation. Further details will be set out in the summary of responses.

2.2 Is property letting a business?

The question of whether a property letting and the receipt of rents constitutes a business is considered differently for income tax, CGT and IHT. The income tax legislation refers to a 'property business' but for the capital taxes there is a distinction between what are considered business assets and those held as an investment, which might however require some activity to maintain.

The case of Elizabeth Moyne Ramsay v HMRC [TC01871], heard in 2011 by the First-tier Tribunal (FTT), was the first to consider the application of s162 TCGA 1992 and CGT roll-over relief on the transfer of a property letting 'business' to a company in exchange for shares.

The FTT decided that what was transferred was not a 'business,' within the undefined meaning of s162, and that accordingly the transfer did not qualify for relief. Mrs Ramsay appealed and, represented by her son, has had her appeal allowed by the Upper Tribunal (UT). The UT considered that the FTT had failed to properly assess the degree of activity as a whole.

In this case the taxpayer had a house which she developed and converted into 10 flats from which she derived rents. The taxpayer said that she provided lots of services which constituted a business. HMRC said the services were consistent with looking after an investment property and not a business.

The FTT had looked at the various authorities about what represented a business and decided that on balance the activities carried out by the taxpayer were merely incidental to the ownership of the investment property and did not represent a business.

The question before the UT was whether what was transferred by a Mrs Ramsay was a business. Although this was a question of fact, the UT considered that the FTT had come to its finding based on an error of law.

In the decision, the Judge says "in my judgment the word 'business' in the context of s162 TCGA should be afforded a broad meaning. Regard should be had to the factors referred to in Lord Fisher, which in my view (with the exception of the specific references to taxable supplies, which are relevant to VAT) are of general application to the question whether the circumstances describe a business. Thus, it falls to be considered whether Mrs Ramsay's activities were a 'serious undertaking earnestly pursued' or a 'serious occupation', whether the activity was an occupation or function actively pursued with reasonable or recognisable continuity, whether the activity had a certain amount of substance in terms of turnover, whether the activity was conducted in a regular manner and on sound and recognised business principles, and whether the activities were of a kind which, subject to differences of detail, are commonly made by those who seek to profit by them."

Although finding that the activities of Mrs Ramsay as a whole satisfied these tests the UT pointed out that there remained the question of degree. The UT did not try to set the boundary but found that the degree of activity in this case outweighed what might normally be expected to be carried out by a mere passive property investor.

Although this gives uncertainty as to where the dividing line is, it does recognise that some property letting activities can be of a sufficient nature to be a business for s162 purposes.

2.3 The boundaries of the rule in 'Hastings Bass' to put aside the exercise of trustee's powers where that power has not been properly exercised

Since the turn of the century there have been several cases concerned with family trusts, and in particular with tax-planning arrangements involving trusts, where the arrangements have for one reason or another proved unexpectedly disadvantageous, and the court has been asked to restore the status quo ante in accordance with the rule known as in Hastings-Bass.

The courts have previously felt constrained to follow that rule since there had been no appeals to superior courts and HMRC had previously declined to be joined as a party to proceedings.

The conjoined cases of Futter and Pitt v Holt were taken to appeal and HMRC consented to be joined as a party. Judgment has recently been given by the Supreme Court, with Lord Walker of Gestingthorpe giving the lead judgment.

Judgment was given in the Court of Appeal by Lloyd LJ, who in refusing rectification, found in favour of HMRC in both cases. His judgment is an extremely thorough analysis of the development of the rule in Hastings-Bass, which he described as a wrong turning. His arguments were accepted by Lord Walker, who refused the application for rectification. In the case of Pitt v Holt, which concerned the settlement of personal injury damages, he allowed rescission on the grounds of mistake.

Since the judgment was published, Jersey has announced that it is considering enacting changes to its law of trusts, which would make statutory provision for Hastings Bass type rectification.

Both Lloyd LJ and Lord Walker drew a distinction between an error by trustees in going beyond the scope of a power, excessive execution, and failing to give proper consideration to relevant matters in making a decision which is within the scope of the power, inadequate deliberation. The rule in Hastings-Bass was concerned with inadequate deliberation.#

The following extracts are taken from Lord Walker's decision:

"65. It might be said especially by those who still regard family trusts as potentially beneficial to society as a whole, that the greater danger is not of trustees thinking too little about tax, but of tax and tax avoidance driving out consideration of other relevant matters."

"67. may be that some offshore trustees come close to seeing their essential duty as unquestioning obedience to the settlor's wishes."

"68. Where the trustee is body corporate acting as a sort of in-house facility provided by a firm of professional advisers, it may be hard to decide whether the separate juristic personality of the trustee insulates it from responsibility for the errors of individual professionals within the firm."

This latter point was considered by both the Court of Appeal and Lord Walker in determining whether any distinction should be drawn between the trustees. They decided that none should. This has implications both for the trustee who is relying on advice from his fellow trustee and the adviser trustee. There are also implications for the way that advice given by assistants is documented, approved and confirmed.

"96. The only complication was that Mr Cutbill (the solicitor-trustee) was a member of both teams: the solicitors giving the erroneous advice, and the trustees receiving and acting on it. I agree with the Court of Appeal that it would be artificial to distinguish between the two trustees, who acted together in making and effectuating their decisions....on 28 March 2008 there was a telephone conversation between the assistant solicitor and Mr Bunce, Mr Futter's accountant, at which, without reference to Mr Cutbill, she definitely confirmed that Mr Futter's personal losses could be set off against the section 87 gains. Mr Cutbill seems to have been, very properly, reluctant to put the blame on a junior member of his firm, and of course his firm must take legal responsibility for any actionable mistake by any of its fee- earners. But the documents....tend to confirm that he should not, as a treated as having been personally in breach of fiduciary duty."

Pitt v Holt concerned the settlement of substantial damages received as a result of a claim for serious brain injuries incurred in a road accident. The recipient subsequently died. Advice had been taken and the approval of the Court of Protection obtained for settlement of the damages by his wife acting as his receiver. However, inheritance tax had not been considered. Accordingly a discretionary rather than a s89 qualifying disabled person's trust or life interest trust was created. The consequence was an immediate liability to inheritance tax, charges on the distribution of capital and the prospect of further charges on each ten year anniversary.

Lord Walker considered the law of mistake in considerable detail, including:

  • What is a mistake?
  • What type of mistake?
  • The conscience test;
  • Mistakes about tax; and
  • Equity does not act in vain.

In considering mistakes about tax, he commented upon the current climate of opinion relating to tax avoidance, even though it had no bearing on the appeals.

"135. The scheme adopted by Mr Futter was by no means at the extreme of artificiality....but it was hardly an exercise in good citizenship. In some cases of artificial tax avoidance the court might think it right to refuse relief, either on the ground that such claimants, acting on supposedly expert advice, must be taken to accept the risk that the scheme would prove ineffective, or on the ground that discretionary relief should be refused on grounds of public policy. Since the seminal decision of the House of Lords in WT Ramsay Ltd v IRC [1982] AC 300 there has been an increasingly strong and general recognition that artificial tax avoidance is a social evil which puts an unfair burden on the shoulders of those who do not adopt such measures."

There had been substantial calls on the trust to meet the care bills of Mr Pitt and only £6,259 was left at the date of his death. The remaining trust fund passed to the same persons that it would have if the trust had been set aside by the court and there would have been nothing artificial or abusive about Mrs Pitt establishing the trust so as to obtain the protection of section 89 of the Inheritance Tax Act 1984.

Setting aside the trust would have no effect on any third party, other than the Revenue and accordingly it was set aside on the grounds of mistake.

If the use, or some would contend the misuse, of the rule in Hastings-Bass has now come to an end, we may now see an increase in applications for rescission on the grounds of mistake.


3.1 Update to the Inheritance Tax Manual

HMRC has updated IHTM24053 following the case of Golding v HMRC and the Tribunal's decision against it in respect of agricultural property relief and the character appropriate to a farmhouse issue.


4.1 Benefit-in-kind exemption for employer paid fees for the new Disclosure and Barring Service (DBS)

In a Written Ministerial Statement, the Exchequer Secretary to the Treasury (David Gauke), has announced that the Government is introducing legislation to exempt from income tax any benefit arising where an employer pays or reimburses fees for the DBS on-line Update Service, and, in some circumstances, fees for Criminal Record Bureau (CRB) checks.

The Update Service is a new subscription service being introduced in June 2013. It lets individuals keep their DBS certificates up-to-date and allows employers or prospective employers to carry out free, on-line, instant checks to see if any new information has come to light since the certificate was issued.

There is a fee to join the Update Service. Where employers pay for or reimburse the cost of the fee, there would normally be a taxable benefit in kind for the employee concerned – this legislation will remove that liability.

In addition, the Government is also exempting fees paid or reimbursed by employers for CRB checks when the employee has applied for or holds an active subscription to the Update Service.

4.2 Additions to the list of qualifying professional fees

Section 343 ITEPA 2003 provides for a deduction from earnings of an amount paid in respect of a 'professional fee', which is a fee mentioned in the Table in subsection (2) of the section.

An order has been laid adding two fees to this list:

  • the trainee registration fee payable by a specialty registrar to a body which recommends specialty registrars to the registrar of the General Medical Council (GMC); and
  • the fee payable by costs lawyers to the Costs Lawyer Standards Board in order to acquire a practising certificate.

4.3 Real Time Information

HMRC has published further notes on making payments under RTI.

4.4 Employment Related Securities Bulletin

HMRC's latest Employment Related Securities Bulletin outlines proposals for self- certification of employee share schemes (for SIP, SAYE and CSOP) that will be introduced from April 2014 and online filing of share scheme forms (from April 2014 for form EMI1, with mandatory on-line filing when the legislation is enacted, and mandatory online filing for forms 34, 35, 39, 40 and 42 from April 2015.

As part of the process employers will need to register existing and new employee share schemes with HMRC. This includes non tax advantaged arrangements currently recorded on Form 42, as well as Enterprise Management Incentives schemes (EMI) and every SIP, SAYE and CSOP.

4.5 Consultation on National Insurance and self employed entertainers

HMRC has issued a consultation document on updating the NIC regulations for entertainers. The consultation is open for comment until 6 August 2013. Any changes implemented as a result of the consultation will only apply prospectively from April 2014. Several choices are put forward for reform (the Government does not think maintain the current legislative position is viable):

Simplifying the NIC class 1 regime:

  • Option 1: Provide for separate secondary contributors for NICs due on Initial Performance Payments (IPPs) and NICs due on Additional Use Payments (AUPs); or
  • Option 2: Provide that IPPs are subject to Class 1 NICs, but AUPs are subject to Class 4 NICs

Moving entertainer's earnings into Class 2 and 4 NIC:

  • Option 3: Repealing the Regulations in respect of entertainers, and amending Social Security legislation to introduce a new higher rate special Class 2 NICs for entertainers only to be paid in addition to Class 4 NICs; or
  • Option 4: Repealing the Regulations in respect of entertainers in order that entertainers pay Class 2 and Class 4 NICs like other self-employed individuals.

HMRC's preferred option is option four.


5.1 Non-resident landlord scheme

New forms for annual reporting of non-resident landlord activities are available.

5.2 HMRC's decision making process in reaching a settlement with a taxpayer

The High Court has considered the efficacy of HMRC's decision making process when it reached a settlement with entities in the Goldman Sachs group. The case was taken by UK Uncut Legal Action Ltd.

Dave Hartnett of HMRC met with Goldman Sachs on 19 November 2010 to discuss a number of outstanding points, one of which related to outstanding NIC liabilities and interest on those liabilities as a consequence of employee arrangements the group had entered into. These arrangements were similar to those other employers had entered into and which many of them had agreed to settle in 2005 by paying the full amount of NIC as assessed by HMRC without any interest on those liabilities. The total amount of tax under consideration for the items under discussion at the meeting exceeded £100m and there was some discussion of the authorisation process within HMRC for settlements of that size.

The agreement reached at the 19 November meeting was that all the NIC assessed by HMRC would be paid, but that no interest would be payable. Mr Hartnett took this decision taking into account a number of factors, including settlement of the other matters and the desire to improve the working relationship between Goldman Sachs and HMRC. There was consideration of whether other factors unduly influenced Mr Hartnett's decision. At the meeting Mr Hartnett's recollection was that there was a significant weakness in HMRC's technical position on claiming interest. At the end of the meeting Goldman Sachs understood the overall effect was that a legally binding agreement had been reached.

On November 30 HMRC met internally and retrospectively approved all elements of the agreement except the charging of interest. There was some concern that the agreement not to charge interest on outstanding NICs was outside the litigation and settlement strategy. The Solicitor General to HMRC indicated that in his opinion despite the agreement of 19 November 2010 it was possible for HMRC to charge or not charge Goldman Sachs the disputed interest. It was clear that HMRC's lawyers dealing with the issue of interest on NIC had not been consulted prior to the 19 November meeting and that the technical position on this was probably misunderstood by HMRC at the time.

On 9 December 2010, after the Solicitor General's advice, Mr Hartnett met with Melanie Dawes (HMRC Director General Business Tax) and Freda Chaloner (chair of HMRC's Programme Board) to consider the 19 November agreement and taking account of what they considered the relevant issues, they concluded the agreement reached was good value for the taxpayers and should stand. Sir Andrew Park in his review for the National Audit Office considered that the agreement reached on 19 November 2010 was almost certainly legally binding, and that taken together with the other matters on which agreement was reached at that meeting, the decision not to charge interest on outstanding NIC liabilities was the right one (although the position might have been different if this was the only tax issue being considered.

The High Court concluded that in reaching its decision HMRC had not taken into account irrelevant factors (such as embarrassment to the Chancellor and Mr Hartnett's reputation), that there had not been a breach of HMRC's duty for collection and management of the revenue and that there was insufficient parallel between Goldman Sachs and the companies who settled the NIC issue in 2005 for there to be issues of equality in the way those two groups had been dealt with in settling outstanding liabilities and interest.

5.3 Agricultural Land Tribunals to be abolished

The functions of the Agricultural Land Tribunal is to be transferred with effect from 1 July 2013 to the First-tier Tribunal and the Upper Tribunal.


6.1 New partial exemption framework for the Higher Education Institutions

HMRC has agreed a new partial exemption framework for Higher Education Institutions with the British Universities Finance Directors' Group, and the Higher Education Funding Council for England.

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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