UK: Weekly Tax Update - Monday 24 June 2013

Last Updated: 4 July 2013
Article by Smith & Williamson

1 GENERAL NEWS

1.1 G8 conference, transparency and tax

The G8 has endorsed the following core principles it considers are fundamental to the transparency of ownership and control of companies and legal arrangements:

  1. Companies should know who owns and controls them and their beneficial ownership and basic information should be adequate, accurate, and current. As such, companies should be required to obtain and hold their beneficial ownership and basic information, and ensure documentation of this information is accurate.
  2. Beneficial ownership information on companies should be accessible onshore to law enforcement, tax administrations and other relevant authorities including, as appropriate, financial intelligence units. This could be achieved through central registries of company beneficial ownership and basic information at national or state level. Countries should consider measures to facilitate access to company beneficial ownership information by financial institutions and other regulated businesses. Some basic company information should be publicly accessible.
  3. Trustees of express trusts should know the beneficial ownership of the trust, including information on beneficiaries and settlors. This information should be accessible by law enforcement, tax administrations and other relevant authorities including, as appropriate, financial intelligence units.
  4. Authorities should understand the risks to which their anti-money laundering and countering the financing of terrorism regime is exposed and implement effective and proportionate measures to target those risks. Appropriate information on the results of the risk assessments should be shared with relevant authorities, regulated businesses and other jurisdictions.
  5. The misuse of financial instruments and of certain shareholding structures which may obstruct transparency, such as bearer shares and nominee shareholders and directors, should be prevented.
  6. Financial institutions and designated non financial businesses and professions, including trust and company service providers, should be subject to effective anti- money laundering and counter terrorist financing obligations to identify and verify the beneficial ownership of their customers. Countries should ensure effective supervision of these obligations.
  7. Effective, proportionate and dissuasive sanctions should be available for companies, financial institutions and other regulated businesses that do not comply with their respective obligations, including those regarding customer due diligence. These sanctions should be robustly enforced.
  8. National authorities should cooperate effectively domestically and across borders to combat the abuse of companies and legal arrangements for illicit activity. Countries should ensure that their relevant authorities can rapidly, constructively, and effectively provide basic company and beneficial ownership information upon request from foreign counterparts.

www.gov.uk/government/uploads/system/uploads/attachment_data/file/207644/Common_Principles.pdf

The G8 also issued an agreed communique which discussed tax issues as follows:

Tax systems – essential to fairness and prosperity for all.

  • We commit to establish the automatic exchange of information between tax authorities as the new global standard, and will work with the Organisation for Economic Cooperation and Development (OECD) to develop rapidly a multilateral model which will make it easier for governments to find and punish tax evaders.
  • On tax avoidance, we support the OECD's work to tackle base erosion and profit shifting. We will work to create a common template for multinationals to report to tax authorities where they make their profits and pay their taxes across the world.
  • We will support developing countries to collect the taxes owed them, with access to the global tax information they need.
  • We agree to publish national Action Plans to make information on who really owns and profits from companies and trusts available to tax collection and law enforcement agencies, for example through central registries of company beneficial ownership.

www.gov.uk/government/uploads/system/uploads/attachment_data/file/207771/Lough_Erne_2013_G8_Leaders_Communique.pdf

The UK also issued an action plan to prevent misuse of companies and legal arrangements which commits to:

  1. Conduct, and share the findings of, a national assessment of money laundering and terrorist financing risks by 2014, co-ordinating action by the public and private sector to assess risks, apply resources and mitigate those risks.
  2. Ensure the Companies Act 2006 and UK Money Laundering Regulations oblige companies to know who owns and controls them, by requiring that companies obtain and hold adequate, accurate and current information on their beneficial ownership.
  3. Amend the Companies Act 2006 to require that this information is accurate and readily available to the authorities through a central registry of information on companies' beneficial ownership, maintained by Companies House. Consult on whether information in the registry should be publicly accessible.
  4. Ensure that trustees of express trusts are obliged to obtain and hold adequate, accurate and current information on beneficial ownership regarding the trust.
  5. Put in place mechanisms to ensure that the relevant competent authorities have access to information on trusts and ensure effective mechanisms to share this information with other jurisdictions, in line with bilateral and multilateral agreements.
  6. Improve the supervision and enforcement of those who facilitate company formation in the UK. This will start with a review of supervision and enforcement of trust and company service providers. The review will include consideration of additional measures to ensure company formation agents conduct effective due diligence including the identification and verification of beneficial owners.
  7. Review of corporate transparency, including bearer shares and nominee directors, by the Department for Business, Innovation and Skills. This will start with the publication of a pre-consultation paper before September 2013.
  8. Support the Overseas Territories and Crown Dependencies to publish Action Plans setting out the concrete steps, where needed, to fully implement the Financial Action Task Force Standards.
  9. Improve international cooperation including the timely and effective exchange of basic and beneficial ownership information.
  10. Implementation of the measures will be through, and at the same time as, transposition of the 4th EU Money Laundering Directive and UK Money Laundering Regulations, changes to the Companies Act 2006, as well as through other relevant bilateral and multilateral agreements.

www.gov.uk/government/publications/uk-action-plan-to-prevent-misuse-of-companies-and-legal-arrangements/uk-action-plan-to-prevent-misuse-of-companies-and-legal-arrangements

1.2 Further amendments to Finance Bill 2013

On 13 June 2013 the Government tabled amendments to Finance Bill 2013 on the following measures (these amendments were published with explanatory memoranda):

Trusts with vulnerable beneficiaries

The amendments make detailed changes to ensure that:

  • the definition of 'disabled person' for the purposes of a trust with a vulnerable beneficiary includes all those who claim constant attendance allowance, including by way of an increase in disablement pension;
  • a person remains a 'disabled person' if he or she would be entitled to receive a qualifying welfare benefit were it not for them being in a publicly funded institution (such as a hospital) or abroad;
  • harmonisation of how the trust income and capital can be used is complete by applying also to 'interest in possession' trusts in the Inheritance Tax code; and
  • 'grandfathered' rights under the commencement rules are preserved where a codicil to a will, or a new will, continues provision that a qualifying vulnerable beneficiary trust be established.

Statutory residence test

There are corrections for minor errors. The other amendments affect the automatic residence test, the split year provisions and the application of the rules in 2012/13.

  • The automatic UK residence test

    Under current drafting an individual is UK resident if they die in the year under consideration while having a UK home having been UK resident for the three previous tax years. This ensures that an individual who may have been UK resident all their life remains resident in the year of death even though they may have spent no or few days in the UK (eg because of a Spring holiday abroad) provided that they have a home in the UK. But the test is not intended to catch, for example, someone who is living back in their overseas home following a secondment to the UK and happens to retain a UK home. Provided the new 'spending sufficient time' requirement is met in respect of an overseas home, the amendment ensures that such an individual does not automatically become UK resident by virtue of their death.
  • Split year provisions

    Amendments are made to the split year provisions under which a year of residence is split into a UK part and an overseas part. Case 6 provides split year treatment for someone who is ceasing full-time work abroad and taxed as if resident in the UK from the date that full-time work abroad ceases. This is appropriate for someone who has previously left the UK to work overseas, but is inappropriate for someone with no previous UK connections, who on that basis could have their tax year split from a date well before they came to the UK.

    The solution is to restrict the scope of Case 6 to those who were resident in the UK in at least one of the previous five years, leaving split years for the group without a previous UK connection to be determined under one of the other Cases 4, 5, 7 and 8. Extending the look-back period to five years means that applying Case 6 for years up to 2017/18 could involve looking back to a year before the introduction of the statutory residence test. Having restricted the scope of Case 6, it was appropriate to revise the priority rule which applies where the conditions for more than one split year Case are met. The result more accurately reflects the way that the former Extra-Statutory Concessions (which gave effect to the split year treatment legislated by Part 3 of the Schedule) were applied.
  • Application to 2012/13

    Further amendments correct an oversight with respect to the 2012/13 tax year. As drafted, the rules in paragraphs 49(2) and 50(3) cannot work properly where the year being considered is 2012/13. Since the third automatic overseas test referred to in paragraph 49(2) is intended to broadly replicate the position for those working full-time overseas that applied before 2013/14 and the split year provision in Case 6 is a direct replacement for the treatment given under an ESC on the return of the individual after a period of working full-time overseas that applied before 2013/14, the effect of the rules in paragraphs 49 and 50 is preserved.

Ordinary residence

In considering paragraphs 26 and 73 as drafted, it was noted that they did not apply to an individual who had been resident in the UK for 2009/10, became non-resident and was resident again for 2012/13. It was not intended to exclude such individuals from the transitional provision and the amendments correct the provisions and simplify the rules at the same time.

The exemption for termination payments under section 413 of ITEPA is geared to periods of employment ('foreign service') for which the earnings are not relevant earnings. For 2013/14 onwards an anomaly in the old rules is corrected whereby for an individual who was resident but not ordinarily resident, all service, including UK duties, could count as 'foreign service'. For 2013/14 onwards, service under a contract providing for both UK and overseas duties which could be subject to Overseas Workday Relief under section 26 of ITEPA will be apportioned.

International agreements to improve tax compliance

Amendments are made to clause 219 giving HM Treasury a power to make regulations for the purpose of, or in connection with, giving effect to the agreement between the Government of the United Kingdom and the Government of the United States of America to improve international tax compliance and to implement FATCA.

www.gov.uk/government/publications/finance-bill-2013

2 PAYE AND EMPLOYMENT MATTERS

2.1 RTI and annual PAYE schemes

HMRC has issued a note concerning RTI submissions for annual PAYE schemes. It comments:

HMRC has received a number of Full Payment Submissions (FPSs) from existing annual schemes for months in which they do not make their annual payment.

An annual scheme is one where both of the following apply:

  • all the employees are paid annually;
  • all the employees are paid at the same time (same date).

If you have a scheme that only pays its staff/directors on an annual basis, you must only send an FPS for the month in which you make the annual payment. You can send as many FPSs as necessary as long as all the payment dates are within the same tax month.

If you have no return to make on the month you would normally make the payment, you should send an Employer Payment Summary indicating no payments have been made during the period.

If you are an annual payer, please do not send in FPSs for months other than that in which you pay your employees. If you send an FPS for a month, other than the agreed payment month, we will change the payment month on our systems

Further information can be found at the following link:

www.hmrc.gov.uk/news/rti-annual-paye-schemes.htm

2.2 RTI and end of year penalties

HMRC has issued the following note:

HMRC will shortly begin issuing the equivalent of a P35 Interim Penalty Warning Letter to those employers who have not submitted:

  • A Full Payment Submission (FPS) or Employer Payment Summary (EPS) for 2012/13 with the 'final' declaration ticked.
  • An FPS or EPS declaring 2012/13 week 52 or month 12 payment information.
  • A 2012/13 Earlier Year Update (EYU) by 19 May 2013.

However, please note that, to ensure that employers who took part in the pilot are treated in the same way as non-pilot employers, penalties will start to be applied from 20 May 2013.

Pilot employers who have yet to submit returns for 2012/13 should do so as soon as possible to prevent further penalties applying.

As the date of 19 April 2013 for submitting a final FPS has passed, pilot employers should instead submit an Earlier Year Update (EYU) to make their final 2012/13 report.

If there are any 2012/13 statutory payments to recover etc, employers also need to submit an EPS as the EYU won't pick up any recovery corrections that need making.

When completing this EPS, employers should ensure they complete and answer the end- of-year declarations and questions.

www.hmrc.gov.uk/news/rti-pilot-employers.htm

3 BUSINESS TAX

3.1 Aggregates levy and whether aggregate becomes part of the site from which it was won

Aggregate levy is charged on aggregate which is subjected to commercial exploitation but there is an exception available when the aggregate becomes part of the land "at the site from which it was won".

Northumbrian Water undertook construction works involved in raising the level of Abberton reservoir south of Colchester in order to increase its storage capacity. Gravel was needed to enlarge the main reservoir dam, the causeway across the dam and to construct further dams around the edge of the reservoir. This was obtained from a pit some 500m away from the reservoir known as the Rye Borrow Pit.

The gravel became part of the land by being used in structures (the dams and causeway) which are treated as land. However the question considered was whether the Rye Borrow Pit, the dams and causeway were all part of a single "site" for the purposes of the exception available for when aggregate become part of the land "at the site from which it was won". Northumbrian Water claimed they were a single "site" and HMRC disagreed.

The First-tier Tribunal has agreed with Northumbrian Water, concluding that:

"site" in this context does not mean the particular location where the aggregate is won but must we think bear a wider meaning in order to reflect its purpose. The locations are all within the same planning application site and while we take that into account it is not something we give any significant weight to. In contrast whether the locations are on the same construction site is of significance given s19 (3) (e) has construction purposes firmly within its purview.

Taking into account the size and scale of the construction project we consider the pit and gravel use locations are on the same one construction site which is delineated by a fenced off construction boundary. We think that if the ordinary person were asked whether the locations were on one site, they would in view of the clearly defined construction site say that it was. The construction site containing both the pit and the locations where the gravel was used is a "site" for the purposes of the relief referred to in s19 (3) (e) FA2001. That s19(3)(e) applies is in our view consistent with the relief having as a primary purpose the relief from levy where aggregate is sourced and extracted within the construction site rather than being restricted to construction at the particular area of ground where the aggregate was extracted.

www.bailii.org/uk/cases/UKFTT/TC/2013/TC02740.html

3.2 Trail commission and life insurance companies

On 25 March HMRC published HM Brief 04/13, which clarified the tax position of some regular payments to fund investors made by persons other than the fund itself. The brief stated that these payments, which are usually characterised by industry as rebates of the Annual Management Charge, are taxable and should be subject to withholding tax and then further taxed as necessary at the investor's marginal rate.

HMRC has now published additional guidance for life insurance companies in the form of questions and answers. The questions covered (with answers in more detail in the note) are:

Does R&C Brief 04/13 cover payments made to life assurance companies? No

What type of payments does R&C Brief 04/13 cover? Certain amounts paid by Financial Intermediaries (for example Financial Advisers) to individual policyholders.

Is rebated "Trail Commission" or an annual management charge (AMC) paid directly to a financial intermediary an "annual payment"? No

Are payments in lieu of Trail Commission "annual payments"? Yes

For an amount to be an "annual payment" there has to be a legal obligation to pay an amount – what does this mean? A binding arrangement or an agreement which creates a liability to pay a specified (although not necessarily fixed) amount or to do a certain thing for a person or group of persons on which the person/s entitled to the payment can rely (i.e. sue for).

What are the rules for deducting tax from an "annual payment"? Tax should be deducted by the entity making the payment to the policyholder at the basic rate of income tax in force for the tax year in which the payment is made.

How do I pay over the tax I have deducted? See HMRC's COTAX Manual at COM23135.

Does it make a difference if the policyholder is not a UK resident? No there is still a requirement to deduct tax unless one of the exceptions set out in HMRC's Company Taxation Manual at CTM35215 apply.

What is the process for claiming repayment of tax deducted? The same as that for any person who wishes to reclaim tax.

Can "annual payments" to individuals be made gross? No for individuals, but certain non- individuals can, see HMRC guidance at CTM35215.

Can the Intermediary/Fund Manager pay the tax on behalf of the policyholder? Yes

Pension rules – is a rebate of trail commission an "unauthorised payment"? Dependent on facts and circumstances.

Does tax need to be deducted from payments of trail commission to a Life Assurer's Internal Linked Funds? No

Will there be additional tax liability as a result of switching to "Clean" Share Classes? Proposed new regulations will enable a tax free switch if approved. In the meantime a clearance procedure can be used.

How does this advice interact with Section 541A ITTOIA 2005? There are questions over any potential for double taxation with this position that are currently being considered by HMRC. Further guidance on this point will be made available as soon as possible. It is not expected that this particular section bites very often and in the meantime any issue should be referred to CTISA.

www.hmrc.gov.uk/life-assurance/rc-brief-4-13-add.pdf

4 VAT

4.1 VAT Notice 701/5 Clubs and Associations

HMRC has updated its VAT notice for clubs and associations to clarify the supply position for VAT purposes of goods and services provided in return for subscriptions.

http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true&_pageLabel=pageLibrary_ShowContent&id=HMCE_CL_000116&propertyType=document#P17_806

4.2 Machine Games Duty urgent update

HMRC is aware of a technical problem affecting some Machine Games Duty returns. Some valid returns are not being accepted by the system and some customers have received Notices of Assessment of Duty. Customers who have already sent in their returns and payments should ignore this assessment notice.

As previously advised businesses should also ignore any machine games duty penalty which shows on their account for a late submission of their first return. Penalties for late filing of first returns will be cancelled.

www.hmrc.gov.uk/news/mgd-update.htm

4.3 Supreme Court decision on loyalty scheme

The Supreme Court has turned down HMRC's application for further references to the CJEU concerning the VAT position of the Nectar Points scheme now operated by Aimia Coalition Loyalty UK Limited. It concluded:

In the circumstances, including the European court's own assessment that the case raised no new point of EU law, the court does not consider that a further reference to the European court is necessary. It would be unfortunate if the position were otherwise, bearing in mind that this litigation has already lasted since 2003.

www.bailii.org/uk/cases/UKSC/2013/42.html

4.4 Reference to ECJ for a decision concerning the reliance to be placed on contracts where abuse of rights is alleged

In April 2010 the First-tier Tribunal concluded that Paul Newey trading as a loan broker through Ocean Finance was not liable to repay VAT of Ł10.7m arising from an HMRC assessment. HMRC had contended that advertising services for the business had been provided to Mr Newey and not, as per the contract arrangements, to a Jersey incorporated and trading company Alabaster (CI) Ltd. The arrangement had been put in place to avoid the non-recoverability of input VAT on the advertising services had the services been supplied directly to Paul Newey and Ocean Finance.

The First-tier Tribunal concluded that Alabaster (CI) Ltd was indeed the recipient of the advertising services and also provided loan broking services to lenders. It also concluded that "although the essential aim of the Alabaster structure was to obtain a tax advantage, there was no abuse as neither the scheme or arrangements involving Alabaster, nor any part of them, was contrary to the purposes of the Sixth Directive".

HMRC appealed to the Upper Tribunal and questions were referred to the CJEU concerning whether contractual terms are decisive for the purposes of identifying the supplier and the recipient in a 'supply of services' transaction within the meaning of the VAT Directive, and how the Halifax 'abuse of rights' principle and recharacterisation of transactions should be applied.

The CJEU has referred the matter back to the Upper Tribunal, concluding that:

"...contractual terms, even though they constitute a factor to be taken into consideration, are not decisive for the purposes of identifying the supplier and the recipient of a 'supply of services' within the meaning of Articles 2(1) and 6(1) of the Sixth Directive. They may in particular be disregarded if it becomes apparent that they do not reflect economic and commercial reality, but constitute a wholly artificial arrangement which does not reflect economic reality and was set up with the sole aim of obtaining a tax advantage, which it is for the national court to determine."

http://curia.europa.eu/juris/document/document.jsf?text=&docid=138694&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first∂=1&cid=724369

www.bailii.org/uk/cases/UKFTT/TC/2010/TC00487.html

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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