UK: Weekly Tax Update - Monday 1 July 2013

Last Updated: 15 July 2013
Article by Smith & Williamson


1.1 Implementing the UK's agreements with the Crown dependencies to improve international tax compliance

The Government has issued a discussion document setting out its first step towards a new international standard in enhanced automatic information exchange agreements. It is to conclude agreements between the UK and the British Crown Dependencies (Isle of Man, Guernsey and Jersey) and those Overseas Territories with financial centres (Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, Gibraltar, Montserrat and the Turks and Caicos Islands). The Government of the UK and the governments of the Crown Dependencies (CDs) and Overseas Territories (OTs) have a shared aim of tackling tax evasion, and see entry into these agreements as contributing towards setting a new standard in international tax transparency.

The approach taken when negotiating these agreements has been to aim for maximum consistency with the UK/US agreements and the agreements being negotiated between the CDs and OTs and the US. This is in order to minimise the additional costs and burdens to business from the increased reporting requirements. While this has been the starting point, there are areas where it has not been appropriate to exactly mirror the US model due to differences in context, for example the taxation systems.

The announcement also comments:

One area that will differ from the US model is the option for the CDs and OTs to provide for an alternative reporting regime, available on election, to individuals who are resident but not domiciled in the UK, and who are taxed on the remittance basis rather than the arising basis.

This alternative reporting regime has been designed in recognition of the different basis for the taxation of this group of taxpayers. The regime therefore focuses on information relevant to this different basis of taxation and is consequently designed to ensure that the information reported is of equivalent value as the standard FATCA-type account information, to ensure compliance with UK tax. This alternative reporting regime will be optional to the CD and OT governments who will need to implement it through their domestic laws.

While the Model Agreement contained in this document is being used as the basis for discussion with both the CDs and the OTs, the UK will only be required to implement domestically its agreements with the CDs. This is because:

  • The agreements that the UK is negotiating with the Isle of Man, Jersey and Guernsey will be fully reciprocal (information will flow both from the UK to the CDs and from the CDs to the UK). This will therefore require domestic legislation to implement the agreements in the UK. It is the implementation of these agreements that is therefore the focus of this discussion document.
  • While based on the same model Agreement, the agreements the UK is negotiating with the Overseas Territories with a financial centre will not be reciprocal (information will flow only from the OTs to the UK). These agreements will not require UK domestic legislation to implement them and therefore are not specifically discussed in this document.

The discussion document covers implementation issues that will affect UK business. As UK Financial Institutions will only have reporting obligations under the reciprocal agreements it is the reciprocal version of the Model agreement that is included with the document.

1.2 Finance Bill – report stage House of Commons

Further amendments to Finance Bill 2013 were tabled on 26 June the majority of which are summarised as follows:

Targeted loss buying – group relief and profit transfer arrangements

This clause introduces a new Part 14A in Corporation Tax Act 2010 (CTA 2010) which includes two new substantive restrictions on the circumstances in which deductible amounts may be brought into account where there has been a qualifying change of ownership in relation to a company (C). This is defined as for CAA01 s212C as:

  • A change in ownership of a company.
  • When a company becomes a member of a group.
  • When a company moves from a group into a consortium.
  • When a consortium member increases its ownership of a consortium company.
  • Where C ceases to carry on the whole or part of an activity and the activity (or part of it) begins to be carried on in partnership by two or more companies.
  • When a partner increases its share in a partnership that is carrying out an activity.

The deductible amounts are ones which, at the date of the qualifying change (the "relevant day"), can be regarded as highly likely to arise as deductions for an accounting period ending on or after that day.

The first restriction is on claims for group relief and relief for trade losses against total profits for deductible amounts in accounting periods ending on or after the relevant day where the purpose, or one of the main purposes, of arrangements connected to the qualifying change is for the deductible amounts to be the subject of, or brought into account as a deduction in, such a claim.

The second restriction is in respect of deductible amounts where there are "profit transfer arrangements" (i.e. arrangements which result in an increase in the total profits of C, or a company connected to C) where the purpose, or one of the main purposes, of those arrangements is to bring the deductible amount into account as a deduction in any accounting period ending on or after the relevant day.

It follows the draft legislation issued in a tax information note on 28 March 2013, but has made some changes to clarify the operation of the rules. In addition the commencement rule has changed.

The commencement rule as originally drafted applied to cases where the change of ownership occurs on or after 20 March (or where such a change occurs after that date pursuant to an unconditional obligation in a contract before that date). However this has been amended so that the commencement applies all elements of the new legislation to any qualifying change happening on or before 20 March (i.e. Budget day) unless (a) the arrangements made to bring about the change had been agreed before that date or (b) there was a common understanding before 20 March between the parties to the arrangements as to the principal terms on which the qualifying change would be brought about.

Targeted loss buying rules – capital allowances

A new clause expands the application of Chapter 16A of Part 2 of the Capital Allowances Act 2001 (CAA 2001) which restricts the relevant excess of allowances after a qualifying change in relation to a company (C). It expands Chapter 16A to apply to all "qualifying activities" (under section 15 of CAA 2001) and not just trades, as currently. It also applies Chapter 16A where that relevant excess of allowances is £50 million or more (in any circumstances); or where the relevant excess is £2 million or more and less than £50 million (where the amount is not insignificant); or where the relevant excess is less than £2 million (and the qualifying change has an unallowable purpose). It follows the legislation issued in a tax information note on 28 March 2013

Election to be treated as domiciled in the UK

Clause 175 introduces provisions by which an individual who is, or has been, married to, or in a civil partnership with, someone who is domiciled in the UK can elect to be treated as domiciled in the UK for the purposes of inheritance tax (IHT). These amendments allow an election to be made by a UK domiciled individual for a past period where they were not UK domiciled. They also enable individuals previously married or in civil partnership to make a retrospective election following divorce or dissolution.

Tax advantaged employee share schemes

These amendments to the legislation for tax advantaged employee share schemes clarify the rules that apply where company events involving 'general offers' take place.

In such cases the legislation allows employees holding shares or share options to be granted favourable tax treatment. They may be able to exchange their holdings for shares or options over shares in an acquiring company, and Schedule 2 creates new rights for them to realise shares without tax liability in the event of a cash takeover of a company.

But following a recent decision by a tax tribunal the Government considers it desirable to clarify the scope of what constitutes a 'general offer' for the purposes of these provisions. The present amendments aim to remove any possible uncertainty and confirm the rules as they have been consistently applied by HMRC.

Qualifying life insurance policies

The proposed amendments to clause 25 and Schedule 9 for the new annual premium limit (£3,600 in any 12 month period) on qualifying life insurance policies, allows greater flexibility by providing for future further exclusions, where appropriate. The proposed amendments also provide clarity on when a statement is required, to whom the statement must be made if obligations under the policy have been transferred, the records that need to be maintained and extend the period during which an individual must make a statement.

REITs investing in other REITs

Changes were made in FB2013 to facilitate the investment in UK REITs by other UK REITs. These Government amendments are in response to representations on the current wording of the Bill. They ensure that the new and the pre-existing legislation operate as intended so that profits of a property rental business comprising the new type of tax exempt income do not include amounts attributable to capital allowances and other tax adjustments.

Treatment of liabilities for IHT purposes

Schedule 34, which inserts new sections 162A to C and 175A into Inheritance Tax Act 1984 (IHTA), is to be amended to clarify the interpretation of some of the provisions and to change the commencement date with respect to liabilities incurred to acquire "relievable property" (property which qualifies for a relief).

Amendment 37 deals with situations where property which has been acquired, maintained or enhanced by the liability ceases to be excluded property, or becomes excluded property, and where the liability exceeds the value of the excluded property. Property is "excluded property" if it is situated outside the UK and the individual entitled to it is domiciled outside the UK, or if settled property is situated outside the UK and the settlor was domiciled outside the UK when the settlement was made. Section 162A(3) is directed at cases where property ceases to be excluded property and becomes chargeable to IHT before the question of whether to take the liability into account arises. The deduction may be allowed to the extent that the property has not been disposed of and is subject to tax. New section 162A(3A) applies where the liability exceeds the value of the excluded property. A deduction for the excess liability may be made but only if that excess is not due to any of the reasons given in new section 162A(3D). This subsection ensures that a deduction is not allowed where the excess liability has arisen by a deliberate manipulation of the value of the excluded property or the liability to obtain a tax advantage, as defined in new section 162A(4). New sections 162A(3B) and (3C) are aimed at cases where the property financed by the liability, which was chargeable to IHT, becomes excluded property at some stage before the question of whether to take the liability into account arises. A deduction may only be allowed for the amount of any liability that exceeds the value of the excluded property, but only if that excess is not due to any of the reasons in new section 162A(3D).

Amendment 40 adds a definition of "remaining liability" to section 162A(4) to deal with the interaction of sections 162A(2) and 162A(3) with section 162A(3A).

Amendments 35, 36, 38, 39, 43, 44 and 49 make amendments that are consequential as a result of amendment 37 and ensure that the relevant provisions relating to excluded property also apply to property which becomes excludes property.

Amendments 41 and 42 address situations where relievable property is given away in an earlier lifetime transfer and also ensure that the provisions in section 162B apply to settled property. New section 162B(7A) provides that once a liability has been taken into account, it cannot be taken into account against another transfer by the same transferor. New section 162B(7B) disapplies (7A) for the purposes of a ten year anniversary (TYA) charge, so that a liability can be taken into account again for subsequent TYA charges. New section 162B(7C) includes what was previously section 162B(5) and extends the provisions in subsections (7A) to relevant property trust charges.

Amendment 45 widens the meaning of "out of the estate" for the purposes of repaying the liability. A deduction will be allowed if the liability is repaid on or after death out of assets in the estate or from excluded property that the deceased owned.

Amendments 46 and 48 clarify one of the conditions to be met before a deduction for a liability that has not been repaid may be allowable. When the liability has not been repaid as part of arrangements that seek to secure a tax advantage, it is the failure to repay the liability which has to give rise to the tax advantage, rather than looking only at whether the liability was part of any arrangements.

Amendment 47 clarifies that for the purposes of the IHT exemption for transfers between spouses or between civil partners, where a liability is not repaid and is disallowed in arriving at the value of a deceased person's estate, the increase in value of the deceased's spouse's or civil partner's estate is treated as the full value without any deduction for the disallowed liability.

Amendments 50 and 51 amend the commencement date for the provisions in paragraph 5 of Schedule 34. The provisions in section 162B, which apply to liabilities in relation to relievable property, will only apply to liabilities incurred on or after 6 April 2013.


2.1 Finance Bill: IHT deductions

During the Public Bill Committee sitting on 13 June Mr Gauke, Exchequer Secretary to the Treasury, stated the Government will table amendments to the relevant published Finance Bill schedule.

"In response to the comments from interested parties, the Government are proposing several amendments to schedule 34. They were due to be tabled today, but because we have reached the debate on clause 174 earlier than anticipated, they will now be tabled on Report. The Government recognise that some lenders may require security in the form of personal assets before they are willing to lend, and that individuals may not be able to restructure the loan or unwind the arrangements for some time. An amendment will, therefore, be tabled to change the commencement date so that new rules dealing with liabilities incurred to acquire a relievable property will apply only to new loans taken out on or after 6 April 2013. That will mean that the new provisions will not affect someone who took out a business loan in the past secured against their other assets. Amendments will also be tabled to clarify the interpretation of the legislation to ensure it works as intended and to address some of the technical issues that were identified in feedback."

See item 1.2 above for further detail on the amendments.


3.1 Overseas workday relief & special mixed fund rules

HMRC has published FAQs on the new special mixed fund rules contained in Schedule 6 to Finance Bill 2013. These rules replace SP1/09 from April 2013, allowing non-domiciled employees, who are taxed on the remittance basis and qualify for overseas workday relief, to aggregate mixed funds from overseas sources in a single qualifying account.


4.1 When zero rating applies to conversion of non-residential property containing a residential part

In the case of Alexandra Countryside Investments Ltd, the First-tier Tribunal has considered the boundary between when conversion of a commercial property containing a residential part will and won't qualify for zero rating, and has applied Court of Appeal reasoning concerning VATA s35 (DIY builder relief which covers conversion of non- residential buildings into residential buildings in certain circumstances) in interpreting how the provisions for zero rating apply for VATA s30 (which includes zero rating for converting non-residential buildings in certain instances).

VATA s30 provides for zero rating if the supply of goods or services for zero rating are included within VATA Sch 8 or otherwise specified. Group 5 of Sch 8 includes the first grant of a major interest in a building by a person who converts a non-residential building (or part of it) into a building designed as a dwelling or a number of dwellings. However the conversion of a non-residential part of a building which already contains a residential part is excluded unless the result of the conversion is to create an additional dwelling or dwellings.

VATA s35 provides that a non-business person carrying out (amongst other things) the conversion of a non-residential building (or part of it) into a building designed as a dwelling or a number of dwellings shall be entitled to recovery of input VAT on goods used in the process. The qualification to the relief where there is a part of the building which is also residential (as in the case of s30) also applies.

In the case of zero rating under VATA s30, HMRC has applied the decision in the 2001 VAT Tribunal case of Calam Vale Ltd (case 16869 – LON/99/977). This case considered the conversion of a pub which included private accommodation constituting a dwelling, vertically into two dwellings, each incorporating a part of the previous dwelling. That case concluded that despite the legislation being out of all proportion with its intended social purpose, it had to be read so that zero rating could only apply where no part of the new dwelling incorporated any domestic element of the original building.

HMRC Business Brief 22/05 set out its policy on s30 zero rating, following the Court of Appeal decision in the case of Jacobs ([2004] EWCA (Civ) 930, [2005] STC 1518). That Brief revises HMRC policy in respect of the DIY builder's refund scheme to accept that the conversion of a building that contains both residential and non-residential parts comes within the scheme so long as additional dwellings are created, commenting that it was no longer necessary for the new dwelling to be created exclusively from the non-residential part. However the Brief commented that this did not change their policy with respect to zero rating for property developers, which was that zero rating could not apply to those dwellings deriving from the conversion of a residential part of the original building.

However the First–tier Tribunal concluded that the VAT Tribunal did not have the benefit of the Court of Appeal's comments when it made its decision in Calam Vale, and therefore chose not to follow it, particularly as that VAT Tribunal expressed dissatisfaction with the outcome. Contrary to HMRC's view in Brief 22/05, they concluded that the Court of Appeal's comments on the application of s35 applied equally to s30.

They also commented on HMRC's formal review procedure and the apparent lack of critical review in this case commenting that taxpayers' confidence in that review system required better performance than in this case. HMRC had already apologised for the brevity of the letter setting out the conclusion of the review.

4.2 VAT treatment of portfolio management fees following the CJEU decision in Deutsche Bank (case C-44/11)

HMRC has released its long-awaited Revenue & Customs Brief on the "modified" VAT treatment of transaction charges in the context of discretionary portfolio management services following the CJEU decision in Deutsche Bank.

HMRC's revised approach as a result of the case applies from 1 December 2013, and they comment:

Whilst all portfolio management services are subject to VAT, the UK currently treats separate charges for effecting the purchase and sale of securities as exempt from VAT on the basis that they are consideration for separate supplies. This policy is set out in Paragraph 1.6 of Notice 701/49 Finance and in section VATFIN5800 of the VAT Finance guidance manual.

As a result of the judgment, it is clear that fees charged by portfolio managers on an annual or other periodic basis for the purchase and sale of securities can no longer be treated as exempt from VAT, regardless of whether or not a separate charge is made.

However, the ECJ in Deutsche Bank only considered the VAT position of periodic fees charged on a flat fee basis where there was no direct link to the transactions being executed. Where, therefore, fees are charged strictly on a transaction by transaction basis (that is, per purchase or sale of investments) exemption will continue to apply. This is conditional upon the portfolio management services being contracted for on that basis and the transaction charges being separately identified in any VAT invoice. This VAT treatment will apply irrespective of whether the portfolio is managed on a full discretionary or on an advisory basis.

Portfolio management services can be distinguished from other financial advisory services because there is an ongoing commitment to monitor and manage an individual client's investment portfolio to formulate investment decisions or recommendations. They should also be distinguished from investment fund management services (that is, the management of pooled investments within a fund structure) where VAT exemption is dependent upon the nature of the fund being managed.

Please see VATFIN7000 and VATINS5300 for guidance on VAT treatment of services provided by financial advisors and VATFIN5100-5400 for guidance on investment fund management services.

For most UK investment managers, the new policy represents no change - provided that all client documentation and correspondence continue to show the transaction charges as a) separate from the investment management fee and b) charged on the basis of actual transactions, as distinct from a periodic charge. It remains to be seen whether the European Commission is prepared to accept this very limited change.

4.3 Notice 102 General Guarantee Accounts

HMRC has updated Notice 102 on general guarantee accounts. It includes the following changes:

  • Operators can now request statements by sending a request to the Guarantee Section in Salford.
  • The address and phone number for the Guarantee section has changed (see paragraph 3.1).
  • The TURN number is now known as an EORI number. The address and phone number for the EORI team is contained in paragraph 2.1.
  • Method of Payment 'S' has been added to paragraph 6.1 for individual guarantees.

4.4 Court of Appeal decision in Pollen Estates

The taxpayers' appeal in Pollen Estates has been upheld by the Court of Appeal. The Upper Tribunal had decided that, charities relief under FA 2003 sch 8 where the charity is a joint purchaser, is only available if all of the joint purchasers are charities and no proportionate relief was due. HMRC could offer no policy reason why this should be the case but nevertheless persisted in arguing the point.

There were two points to be considered at the Court of Appeal:

The relevant chargeable interest

The appeal both before the UT and the Court of Appeal was that the only relevant chargeable interests that the charities acquired were their respective undivided shares in land; and that those acquisitions were to be treated as separate land transactions for the purposes of SDLT. The Upper Tribunal rejected this approach, largely on the basis of their analysis of how SDLT operated in the case of a joint purchase of an interest in land where no relief was in play. The Court of Appeal agreed with the Upper Tribunal here.

The interpretive approach on the availability of relief for charities

In contrast to the UT the Court of Appeal found sufficient "policy imperative" so that the legislation could be read as making the charity exemption available to the extent that the purchaser is a charity and to the extent that the conditions are met. In the present case, this reading would have the consequence that a land transaction is partially exempt, but only to the extent of a charity's interest.

It remains to be seen whether HMRC seek leave to appeal to the Supreme Court but it is to be hoped that they will see this produces a sensible outcome and let the matter lie.

4.5 Scottish land & buildings transaction tax (LBTT)

On 25 June 2013 the Scottish parliament approved the land & buildings transaction tax (Scotland) Bill. It will replace SDLT with effect from 1 April 2015. It does not replace the new ATED rules, which will apply separately.

In contrast to SDLT (which charges tax using a 'slab system' on the whole transaction type) will charge tax on a different basis for different bands of consideration within the total consideration. The rates and bands for the LBTT will not be announced until September 2014 at the earliest.


NTBN274 - Finance Bill 2013 changes to the close company 'charges for loans to participators'

This briefing note outlines the Finance Bill 2013 changes to the rules on close company loans to participators.

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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