UK: Weekly Tax Update - Monday 4 November 2013

Last Updated: 11 November 2013
Article by Smith & Williamson

1 GENERAL NEWS

1.1 Forms 64-8

Where a hard copy authority form 64-8 is being filed with forms SA1, CWF1, SA 400 or SA 402, HMRC has asked that the forms should be stapled together on submission to HMRC, where a specialist team will deal with them.

1.2 Judicial review of HMRC's disclosure of taxpayers' names in an off the record conversation with journalists

The High Court has concluded that the release of taxpayer names to journalists by the then Chairman Mr Hartnett in an off the record conversation was not in contravention of s18 of the Commissioners for Revenue and Customs Act 2005. This provides:

  1. Revenue and Customs officials may not disclose information which is held by the Revenue and Customs in connection with a function of the Revenue and Customs.
  2. But subsection (1) does not apply to a disclosure:

    1. Which;

      1. is made for the purposes of a function of the Revenue and Customs; and
      2. does not contravene any restriction imposed by the Commissioners.

Section 51 of the 2005 Act is an interpretation provision. Section 51(2) provides:

"In this Act;

  1. 'function' means any power or duty (including a power or duty that is ancillary to another power or duty); and
  2. a reference to the functions of the Commissioners or of officers of Revenue and Customs is a reference to the functions conferred;

    1. by virtue of the Act; or
    2. by or by virtue of any enactment passed or made after the commencement of this Act."

The Court concluded the comments were in line with the law and HMRC's guidance on its application in view of the tax function of HMRC, permitting Mr Hartnett to make the disclosures in the context of the meeting to maintain good relations with the press, and to encourage them to understand and convey to the public the negative attitude which HMRC had to participation by taxpayers in film investment schemes.

Questions on Human Rights were also discussed and determined in favour of HMRC.

www.bailii.org/ew/cases/EWHC/Admin/2013/3258.html

1.3 Potential changes to the CGT treatment of non-UK residents selling UK residential property

There have been reports in the national press that HM Treasury is considering broadening the scope of CGT to gains made by non-UK residents on the disposal of UK property. The reports so far focus on disposals of residential property with the apparent aim of the policy being the influence of foreign buyers on UK house prices. So far there have been no reports this will extend to holdings of UK non-residential or commercial property.

CGT at a rate of 28% has already been extended to certain non-natural persons (whether UK resident or not) where they hold high value residential property, by applying CGT on gains deemed to accrue since 5 April 2013 under the Additional Tax on Enveloped Dwelllings (ATED) regime.

It is possible for individuals to elect which of two or more houses is their main residence for the purpose of the main residence election to exempt any gain from CGT on disposal.

The election must be made within two years of the date of a change in the number of residences occupied by the individual. Each residence would need to meet the definition of a residence, which requires the ownership of an interest sufficient to make it a residence and actual use of the interest as a home for the individual concerned.

The GAAR guidance includes an example of a UK resident and a non-domiciled but UK resident person making use of such an election in the examples of acceptable transactions included at section D18.

If any changes are made to the current rules, it is expected they will be announced in the Autumn Statement on 4 December 2013.

2 PRIVATE CLIENT

2.1 Penalty for negligent submission of a tax return

The First-tier Tribunal has considered the case of Mr Peter Stratton.

The substantive point was whether a gain made by the Appellant on a disposal of shares in that tax year was taxable as employment income or whether it was chargeable to capital gains tax.

Mr Stratton also appealed against a penalty notice (£340) dated 13 February 2009 issued under section 97 AA (1) (b) Taxes Management Act 1970 ("TMA") in respect of an alleged failure to produce documents and a penalty determination (£23,650) under section 95 TMA in respect of the alleged negligent submission of an incorrect tax return for 2006/7.

In 2001 Mr Stratton acquired 250 shares in his employer company. In 2006 the company was taken over by a consortium. Mr Stratton surrendered the shares to the company, receiving payment of £382,748, from which the company deducted PAYE. In his 2006/07 tax return, he claimed a refund of the tax deducted under PAYE.

Following an enquiry, HMRC rejected his claim for a refund and imposed a penalty under TMA, s 95, at the rate of 20% of the potential lost revenue.

The First-tier Tribunal dismissed Mr Stratton's appeal, holding that the sale of the shares was liable to income tax under ITEPA 2003, s 423, as follows:

"We considered that it was plain on the facts of this appeal that the Appellant had acquired the shares in GHG pursuant to an opportunity offered to him by reason of his employment. The letter from the Chief Executive of GHG dated 29 June 2001 makes it clear that the Appellant was offered the opportunity to acquire shares because he had completed six months employment. The Appellant, in his evidence, stated that he understood the shares in GHG to be freely transferable and could be held by persons other than employees. We have to say that we considered the Appellant's evidence on this point be very vague and unspecific. Whatever the circumstances of the acquisition of shares by other persons may be, it is clear to us from the evidence of the letter of 29 June 2001 that the Appellant acquired his shares by reason of his employment with GHG."

The Tribunal also dismissed Mr Stratton's appeal against the penalty under s 95 holding that he had acted negligently when submitting his return claiming a repayment.

"73. The issue, therefore, was whether the Appellant had been negligent in making a return which showed the proceeds from the sale of the GHG shares as a capital gain rather than as an amount chargeable to income tax.

74. Negligence in the context of section 95 TMA 1970 involves an objective test. In our view, negligence for the purposes of section 95 TMA 1970 is the same as "negligent conduct" in the context of discovery assessments under section 29 Taxes Management Act 1970. In that context, negligent conduct should be judged by reference to the reasonable taxpayer. The test was explained by Judge Berner in Anderson (deceased) v Revenue and Customs Commissioners [2009] UKFTT 206 at [22] (cited with approval by Judge Bishopp in the Upper Tribunal in Colin Moore v Revenue and Customs Commissioners [2011] UKUT 239 (TCC) at [13]):

"The test to be applied, in my view, is to consider what a reasonable taxpayer, exercising reasonable diligence in the completion and submission of the return, would have done."

75. In approaching the question whether the Appellant had been negligent in making his self-assessment return for 2006/7 we have applied the test set out by Judge Berner.

76. One initial point we should make is that it was clearly incorrect for the Appellant's return to claim a deduction of an expense equal to the amount which had been subjected to PAYE. No expense has been incurred. In correspondence Daniels Travers accepted that this was incorrect. Even if the proceeds of sale were taxable on capital gains basis, a more appropriate treatment, in our view, would have been for the Appellant to have shown on his return a nil amount in respect of the amount chargeable to income tax in respect of the disposal of his shares (which would have resulted in a refund of income tax deducted under PAYE), possibly with a "white space" disclosure, together with a return of the capital gain.

77. In our view, the return was negligently made by the Appellant. As we have already observed, Daniels Travers seemed either reluctant or unable to engage with HMRC in correspondence in relation to the relevant ITEPA 2003 provisions discussed above. Indeed, insofar as Daniels Travers explained the rationale behind the position taken by the Appellant in his tax return, it seemed to ignore the relevant provisions of ITEPA 2003 altogether. Moreover, when Daniels Travers did eventually consider the relevant provisions it appears that they were working from a version of the legislation which did not apply to the Appellant's disposal of his GHG shares. Indeed, in reviewing the correspondence between HMRC and Daniels Travers, it is hard to avoid the conclusion that the applicable

ITEPA provisions had not been considered by the Appellant's advisers when the return was submitted. The failure to consider the application of the "conditional share" provisions of ITEPA 2003 was negligent.

78. We have already found that the Appellant did in fact receive the tax guidance contained in the notes to the Remittance Advice at the time that he disposed of his shares. He was, therefore, aware that the proceeds of sale of his GHG shares would be subject to income tax. Moreover, in preparing the Appellant's tax return it was clear to Daniels Travers that GHG had taken the view that the proceeds of the disposal would be chargeable to income tax – hence the need, in their view, to manufacture the deduction of an amount equal to the taxable income which was subjected to PAYE. At no stage, however, did either the Appellant or Daniels Travers seem to query GHG or discuss amongst themselves why it was that PAYE had been deducted. Instead, the Appellant on the advice of Daniels Travers took the view that a capital gains treatment was appropriate.

79. Of course, the tax guidance contained in the Remittance Advice was not binding on the Appellant. He was entitled to take his own view as to the correct tax treatment. It seems to us, however, that there was no reasonable basis for the view taken by the Appellant in his tax return. We will deal, in a moment, with whether it was reasonable for the Appellant to rely on the advice of Daniels Travers. Subject to that point, the arguments put forward on behalf of the Appellant in favour of a capital gains tax treatment for the proceeds of sale seem to be wholly without foundation. We accept that the detailed formulation by HMRC of the terms of the Deed and the application of the particular provisions of ITEPA 2003 left something to be desired, but even so it was plain which provisions HMRC considered to be applicable and no sensible argument was put forward in correspondence by the Appellant or his advisers as to why they did not apply. Indeed, we suspect that the application of these provisions were simply overlooked by the Appellant and his advisers, notwithstanding the terms of the guidance contained in the Remittance Advice.

80. For these reasons, we consider that the Appellant's return was negligent. Although the point was not raised by either party at the hearing or in the subsequent written submissions, we consider that we must also address the question whether the Appellant, by relying on the advice of Daniels Travers that the proceeds of sale of his GHG shares were subject to capital gains tax rather than income tax, had a reasonable excuse for the purposes of section 118 (2) TMA 1970. We should note that it is for the Appellant to satisfy us on the balance of probabilities that a reasonable excuse for the negligent return existed.

81. It is arguable that the concept of negligence – i.e. the requirement for the negligent submission of a return – for the purposes of section 95 TMA 1970 excludes the defence of reasonable excuse contained in section 118 (2) TMA 1970. Even if that is not correct, in our view, the Appellant has failed to satisfy us that he had a reasonable excuse for the following reason.

82. It is certainly true that there are circumstances in which incorrect advice given by a tax adviser to a taxpayer can constitute a reasonable excuse for the filing of an incorrect return (see, for example, in relation to the rather different provisions of paragraph 18 Schedule 24 Finance Act 2007, Hanson v HMRC [2012] UKFTT 314 (TC)). Where, on advice, a taxpayer has an arguable case that the tax claimed by HMRC is not due, reliance by the taxpayer on that advice will not normally be regarded as negligent for the purposes of penalty proceedings even if it turns out that the advice was incorrect. However, it cannot be correct that in cases where there is no reasonable basis for the advice or the advice was based on a simple failure to consider the relevant statutory provisions, reliance on such defective advice can constitute a reasonable excuse for the purposes of section 118 (2) TMA 1970. Otherwise, a mistake of law or ignorance of the law could constitute a reasonable excuse – a consequence which Parliament cannot possibly have intended. 83. For this reason, to the extent it is relevant, we consider that the Appellant did not have a reasonable excuse for the purposes of section 118 (2) TMA 1970."

www.bailii.org/uk/cases/UKFTT/TC/2013/TC02967.html

3 PAYE AND EMPLOYMENT MATTERS

3.1 Whether employee or employer liable for income tax in respect of a share scheme

In January 2012 the Upper Tribunal concluded that a share scheme implemented by Aberdeen Asset Management (AAM) was implemented in such a way that on the initial allocation of shares to an employee there was no payment from AAM on which AAM was required to deduct PAYE (the Ramsay and cash box issue). However they did conclude that the shares were readily convertible assets so that AAM was required to operate PAYE on their notional value.

An appeal and cross appeal to the Scottish Court of Session has concluded (in contrast to the Upper Tribunal) that the allocation of the shares was a payment. The judge commented:

In a case of this kind, our concern is with the reality rather than with any simulation of reality that may be achieved by the interposition of a company, the issue of shares and the oversight of compliant directors. Looking at the matter in that way, I think that it is obvious that the employee had complete control of the company and had immediate access to its cash. The money box company was simply a conduit between the EBT and the employee. The directors' purpose was that of compliance with the objective of the scheme.

On the Ramsay principle (W T Ramsay Ltd v IRC [1982] AC 300), the transfer to the employee of shares in the company was a payment within the meaning of section 203(1) of the 1988 Act (cf Garforth v Newsmith Stainless Ltd (1978) 52 TC 522). The error of the Upper Tribunal in this case lies, in my opinion, in deciding the question on the basis of the formal legal rights that flowed from the interposition of the company. The Upper Tribunal should have looked at the obvious and inescapable reality.

This disposed of the appeal in favour of HMRC, but on the issue of readily convertible assets the judge agreed with the conclusion of Upper Tribunal.

www.bailii.org/scot/cases/ScotCS/2013/2013CSIH84.html

4 BUSINESS TAX

4.1 Corporation tax relief under the intangible asset regime

The First-tier Tribunal has concluded that where a company (Armajaro Holdings Ltd - AHL) holds an interest in an LLP (Armajaro Asset Management LLP - AAM) it is not possible for the company to obtain intangible asset regime treatment in respect of its acquisition of further interests in the LLP from individual members. The company was incorporated in 1998 and provided management services to its subsidiaries and associated undertakings. The LLP was incorporated in July 2002 with an initial capital contribution of $100,000 from AHL and three amounts of $5,000 from three individuals. In March 2008 the company purchased the interests of two of the individual partners for a total of $23.7m, and a new partnership agreement was made between the company and the remaining individual member. As a result the company increased its share of the fixed partnership capital from 44.64% to 59.25%.

The accounts of the company to 31 August 2008 prepared in accordance with UK GAAP showed an investment in the LLP of $40.882m, while its consolidated accounts showed acquisition of goodwill in AAM of $22.553m and fair value of members' capital acquired of $1.21m (in respect of the $23.7m acquisition). There was no intangible asset in the balance sheet of the LLP, but the company claimed goodwill amortisation for what it accounted for in its consolidated accounts as goodwill on the acquisition of further interests in the LLP.

The contention for the taxpayer was that the intangible asset regime did not contemplate the existence of LLPs at the time it was written, and what was required was to treat an LLP for corporation tax purposes as a general partnership. What was then required was to determine whether under the principles applying to a general partnership there would have been an acquisition of goodwill. The contention was that the amounts paid for the acquisition of the member's interests would have been an acquisition of the assets of the partnership and (in this case) principally of goodwill.

The case considered expert evidence on the accounting aspects of company accounting for interests in LLPs and general partnerships. Where the company holds a controlling interest in an LLP this is accounted for as an investment in the balance sheet of the company. Where it holds a controlling interest in a general partnership and there is no restriction on the distribution of profits to the partners, the reflection of that interest in the balance sheet of the company will encompass its share of the assets of the general partnership (which would include the cost of partnership goodwill acquired). This 'transparent' treatment is not possible with an interest in an LLP.

In particular the case looked at what was ICTA s118ZA (which is now CAT09 s1273). The FTT commented:

We agree that section 118ZA(1) and (2) provides for a "look-through" but that only applies "for corporation tax purposes" and "for all purposes ... in the Corporation Tax Acts". Nothing in section 118ZA requires or permits a corporate member of an LLP to treat the assets of the LLP as its own for accounting purposes. The words "For all purposes, except as otherwise provided, in the Corporation Tax Acts ..." in section 118ZA(2) clearly contemplate the existence of exceptions, such as that in Schedule 29, where it is necessary to look at the treatment of a transaction for accounting purposes. We do not accept that section 118ZA provides for a general look-through and, specifically, it does not apply for accounting purposes. Relief under Part 2 of Schedule 29 is given by reference to expenditure written off or written down for accounting purposes. If accounting rules or practice do not permit the expenditure on acquiring an interest in an LLP to be treated as the acquisition of the LLP's intangible fixed assets included then section 118ZA does not change the accounting rules or practice or deem the accounts to include something that they do not include.

Section 118ZA(1) ICTA [now CTA09 s1273(1)] provides that, where a LLP carries on a trade, profession or other business with a view to profit, it is treated as a partnership for corporation tax purposes. Section 118ZA(1)(c) [now CTA09 s1273(1)(c)] states that the property of the LLP is treated as held by the members as partnership property. The effect of section 118ZA(2) is that references in the Corporation Tax Acts to a general partnership and its partners include a LLP and its members and, accordingly, the property of an LLP is treated as held by its members as partnership property for corporation tax purposes.

[FA02 Sch29] Paragraph 76(1)(c) [now CTA09 s807(1)(c)] excludes an asset from Schedule 29 to the extent that it represents a partner's interest in a partnership. Paragraph 76(3) [now CTA09 s807(1)(c)] provides that the exclusion does not apply to an interest that is treated for accounting purposes as representing an interest in partnership property that is an intangible fixed asset to which Schedule 29 [now CTA09 part 8] applies.

The above indicates that where an LLP (or partnership) itself has goodwill qualifying for the intangible asset regime a corporate's share of that goodwill is not an excluded asset for intangible asset regime purposes. However a corporate's interest in an LLP (or partnership) will not on its own be enough to come within the definition of an asset to which the intangible asset regime applies. The accounting treatment of that interest in the company's own accounts (not consolidated accounts) will be a key factor in determining whether the intangible asset regime applies.

www.bailii.org/uk/cases/UKFTT/TC/2013/TC02960.html

4.2 CFC and dividend group litigation order – test case portfolio investment holdings

The High Court has concluded that those companies with portfolio holding interests (less than 10% interest) in foreign companies who had claimed exemption from tax on dividends from these companies in reliance on EU law for periods prior to 1 July 2009, now need to resubmit their returns claiming credit for the higher of the tax actually paid on the underlying profit, or the nominal (statutory) tax rate applicable to the company which paid the dividend. It does not matter whether the dividends were paid from investments in companies located in EU or non-EU countries.

Any tax refunds due attract interest at compound rates.

www.bailii.org/ew/cases/EWHC/Ch/2013/3249.html

4.3 Whether a payment to settle German litigation was wholly and exclusively incurred for the business purposes of an individual's participation in a professional partnership

The First-tier Tribunal has considered the case of Mr Peter Vaines.

Mr Vaines had been a partner in a partnership until December 2005 and in another partnership since then. In 2007/08 he made a €300,000 payment to settle a claim by a German bank arising out of the partnership that he had ceased to be a member of in 2005. The payment was made to avoid the risk of bankruptcy and therefore to protect his position as a partner in his current partnership. HMRC contended the payment was not wholly and exclusively for business purposes or a revenue expense on a number of grounds.

The Tribunal concluded that, since the introduction of self-assessment, although an individual may carry on partnership collectively with others in partnership, he does carry it on individually and the profits are assessed on him individually.

The judges found the payment was made wholly and exclusively for business purposes and that it was revenue in nature.

www.bailii.org/uk/cases/UKFTT/TC/2013/TC02965.html

5 VAT

5.1 VAT and gaming machines

The Court of Appeal has overturned the decision of the High Court published in 2009 that gaming machines involving a random number generator providing numbers to a range of terminal machines, were gaming machines within the definition of the exclusion from VAT exemption in note 3 to item 1 of VATA Sch9 group 4 as at the relevant time. Much turned on whether the language of item 3 meant that it included 'machines' despite referring a 'machine'. The effect of the decision was that takings from the machines were subject to VAT.

www.bailii.org/ew/cases/EWCA/Civ/2013/1289.html

5.2 Whether the UK exemption for fund raising events by charities and qualifying bodies requires a primary purpose of raising money

The Upper Tribunal has rejected Loughborough Student Union's appeal from the May 2012 First-tier Tribunal's (FTT) decision that its fresher ball fund raising activities did not qualify for VAT exemption under the cultural services exemption.

The Upper Tribunal referred the matter back to the FTT to assess whether the exemption for fund raising events by charities and other qualifying bodies was not in accordance with the VAT Directive.

The Sixth VAT Directive article 13A(1)(o) (in what is now VAT Directive article 132(1)(o) and 132(2)) exempts:

"the supply of services and goods by organisations in connection with fund-raising events organised exclusively for their own benefit provided that exemption is not likely to cause distortion of competition. Member States may introduce any necessary restrictions in particular as regards the number of events or the amount of receipts which give entitlement to exemption".

The argument by Loughborough Students Union was that the primary purpose condition in VATA Sch 9 group 12 item 1 exceeded what was required to achieve the purpose of the VAT Directive. The UK exemption is as follows:

"The supply of goods and services by a charity or a qualifying body in connection with an event;

  1. that is organised for charitable purposes by a charity or jointly by more than one charity;
  2. whose primary purpose is the raising of money; and
  3. that is promoted as being primarily for the raising of money."

www.bailii.org/uk/cases/UKUT/TCC/2013/517.html

5.3 EU guidance on the VAT mini one stop shop (MOSS)

The Commission has published practical guidelines to prepare businesses for the new VAT rules for telecoms and e-services, which will enter into force in 2015.

To remove the need for relevant businesses to register in every EU Member State where their customers reside, a voluntary simplification procedure known as the "Mini One Stop Shop" ("MOSS") will operate in each EU Member State. The MOSS will allow relevant businesses to account for VAT via a single VAT return, in their own Member State. This simplification is intended to remove the need for multiple EU VAT registrations that would inevitably result from the 1 January 2015 changes.

Amongst other things the guidance provides details on how the MOSS will operate for areas such as:

  1. Businesses that are "established" and businesses that do not have an establishment (eg. premises from which they operate) within the EU;
  2. What happens where businesses are already registered in a number of EU member states. For example, as a result of "distance sales" (typically mail order) of goods to private customers;
  3. Information to be recorded on each MOSS return;
  4. Payment of VAT due for each EU Member State, penalties, and other compliance issues;
  5. Invoicing requirements.

http://europa.eu/rapid/press-release_IP-13-1004_en.htm

http://ec.europa.eu/taxation_customs/resources/documents/taxation/vat/how_vat_works/telecom/one-stop-shop-guidelines_en.pdf

We have taken care to ensure the accuracy of this publication, which is based on material in the public domain at the time of issue. However, the publication is written in general terms for information purposes only and in no way constitutes specific advice. You are strongly recommended to seek specific advice before taking any action in relation to the matters referred to in this publication. No responsibility can be taken for any errors contained in the publication or for any loss arising from action taken or refrained from on the basis of this publication or its contents. © Smith & Williamson Holdings Limited 2013

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If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.