UK: Weekly Tax Update - Monday 11 November 2013

Last Updated: 18 November 2013
Article by Smith & Williamson

1 GENERAL NEWS

1.1 Legal professional privilege

The First–tier Tribunal has considered the case of Edward Behague and whether legal professional privilege extended to various documents, including a letter of engagement.

The Tribunal decided that parts of the engagement letter were privileged as follows:

"22. HMRC submit that engagement letters between a solicitor and his client are not privileged at least if they merely set out the terms on which the solicitor will act. This is consistent with authority. Rimer J in Dickenson (t/a Dickinson Equipment Finance) v Rushmer (t/a F J Associates) [2002] 1 Costs LR 128 said:

"not all such documents [ie client engagement letters] will necessarily and automatically be privileged. It is possible that, in any particular case, the client care letter will reflect or contain advice or other material which would serve to clothe it with privilege. It is not, however, suggested that the letter produced to the judge was privileged on that basis. In principle, I cannot see why a letter merely setting out the terms of which the solicitor is to act for the client should be privileged."

23. It is also consistent with logic. A client engagement letter normally sets out the terms on which a solicitor will act. It is a contract between the client and solicitor. The solicitor cannot (and does not) give legal advice about the contract between himself and his client. In so far as the client engagement letter, therefore, sets out the terms of the contract, it cannot attract LPP as the lawyer is not giving advice qua lawyer. He is not giving legal advice at all.

24. I therefore reject the appellant's submission that engagement letters are by their nature subject to LPP.

25. However, all this depends on what the actual engagement letter says. If it goes beyond setting out the terms on which the solicitor will act it may attract LPP at least in part.

26. In particular, it is likely that an engagement letter will specify the particular matter or matters on which the solicitor is contracted to provide legal advice. Does this make the whole or part of the letter subject to LPP? It seems to me that it must. The justification for LPP is that:

"a client should be able to obtain legal advice in confidence...otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent...once any exception to the general rule is allowed, the client's confidence is necessarily lost." R v Derby Magistrates Court Ex p B [1996] AC 487 per Lord Taylor.

LPP must extend not only to the content of the legal advice but the fact that a person sought legal advice on any particular matter. Therefore, to the extent that an engagement letter sets out what the advice will cover it must be subject to LPP."

www.bailii.org/uk/cases/UKFTT/TC/2013/TC02983.html

1.2 UK/Cayman Agreement to improve international tax compliance

On 5 November 2013 the UK and the Cayman Islands signed the first intergovernmental agreement (IGA) between the UK and an Overseas Territory, the 'UK-Cayman Agreement to Improve International Tax Compliance'.

This agreement is non-reciprocal, so UK financial institutions will not have further reporting obligations under the terms of this agreement

www.hmrc.gov.uk/fatca/cayman.pdf

1.3 Devolution of taxes to Wales

The Government has confirmed that it will:

  • give the Welsh Ministers borrowing powers, so that they can borrow money to invest in Wales;
  • devolve certain taxes, as the Silk Commission recommended, to ensure the Welsh Government has an independent funding stream to pay back the money it borrows;
  • devolve Landfill Tax and Stamp Duty Land Tax in Wales;
  • provide for a referendum to take place so that people in Wales can decide whether some of their income tax should be devolved, in the same way as it is in Scotland.

It has also confirmed it will legislate to implement these changes as soon as parliamentary time allows. As a first step, it will publish a draft Wales Bill in the next few months to allow Parliament to scrutinise the legislation in draft.

www.parliament.uk/documents/commons-vote-office/1-November-2013/4.Wales-Infrastructure-finance.pdf

1.4 Property taxation

The Policy Exchange has issued a report on barriers to home ownership, including the pros and cons of introducing new land and property taxes. It says that now is not the right time to overhaul the system, arguing that the British pay the highest levels of property taxes in the whole of the developed world. Council tax bills, stamp duty, inheritance tax and capital gains tax have contributed to a situation where UK property taxation raises more than twice the average level in the OECD. However there is little discussion in the report of the incidence of certain indirect taxes on construction and development such as for example VAT.

The report does conclude the current UK system of land and property taxation could be improved. However, it finds some of the claims that are made for property and land taxation are unsupported by the evidence. The abolition of Mortgage Interest Relief (MIRAS), together with evidence from overseas, indicated that housing supply was the most crucial requirement for housing affordability, and the reduction of volatility, not taxation or subsidy.

Instead of altering taxation levels, the report says that changes to the planning system are the best way of bringing down the cost of rents and home ownership, and dealing with issues such as house price volatility and the wider instability this creates. It calls on all policymakers to commit themselves to building 300,000 new homes every year from 2015 to 2020 by the means set out below.

  • Garden cities. Voted through by existing local communities, new and attractively designed garden cities will act as beacons for development, creating huge housing and infrastructure projects.
  • Self-build. Councils that fail to hit their own housing targets should have to release land to local people who want to design their own homes. The government could use this self-build model to ensure that councils hit their house building targets.

www.policyexchange.org.uk/images/publications/taxing%20issues.pdf

2 PRIVATE CLIENT

2.1 HMRC Tax Avoidance Spotlights

HMRC has published a new Spotlight as follows:

"HMRC has won another case in the tribunals involving an attempt to avoid tax and National Insurance contributions on employee bonuses. In LM Ferro Ltd v HMRC a bonus was paid in the form of an award of shares. The decision confirmed HMRC's view that these types of devices to avoid tax simply do not work - if you pay what is really a bonus, tax and National Insurance contributions are due no matter how it is dressed it up.

The scheme in LM Ferro was marketed by Powrie Appleby but similar avoidance schemes were marketed by other promoters. HMRC considers cash received by beneficiaries of awards in those schemes is also chargeable to Income Tax and National Insurance contributions.

HMRC expects those who used these schemes to make full payment of the tax and National Insurance contributions due, plus interest. Those companies and employees affected should contact HMRC to settle their liabilities and prevent additional interest accruing. You can contact HMRC on Telephone 03000 532624.

Penalties may be charged if you failed to take reasonable care when making returns to HMRC".

http://www.hmrc.gov.uk/avoidance/spotlights.htm

2.2 When HMRC is required to give effect to a claim for relief

The Supreme Court has found in favour of HMRC in the Cotter case, thus overturning the previous decision of the Court of Appeal. In considering the issues the Supreme Court has drawn a distinction between a situation where a taxpayer submits a return by 31 October following the tax year (where HMRC are not obliged to give effect to a free standing claim that is to be applied to that year but is submitted after the return) and a return submitted by 31 January following the tax year (where the taxpayer is required to compute the liability and a subsequent amendment to that return by the taxpayer should be given effect by HMRC unless HMRC corrects the calculation to remove its effect and the taxpayer does not object).

At the end of the judgement Lord Hodge comments on how the claim and relief system works as follows:

33. The Court of Appeal expressed concern about the risk of satellite litigation and delays in tax collection if the Revenue were correct in its submission on the meaning of "return" in the relevant provisions. For that reason, it is appropriate that I should say something about how, as I see it, the system works.

34. Where a taxpayer makes a claim for relief in a tax return form which is on its face relevant to the year of assessment (as, for example, when he claims employment loss relief in year 2) or where the taxpayer chooses under section 9(1) of TMA to calculate the amount of tax that he is due to pay, and allows for the relief in his calculation, the Revenue, if it disagrees, will have the option of correcting the return under section 9ZB of TMA, which extends to errors of principle. If the taxpayer rejects the correction (under section 9ZB(4)), that correction has no effect. The Revenue may give notice of an enquiry under section 9A. When the Revenue completes the enquiry by issuing a closure notice under section 28A, the taxpayer may appeal a conclusion stated or amendment made in the closure notice (under section 31(1)(b) of TMA). Similarly if the Revenue amends the self assessment during the enquiry under section 9C to prevent loss of tax, the taxpayer may appeal to the tribunal (section 31(1)(a)). Until this procedure is complete, effect is given to the claim, unless it results in a repayment (section 59B(4A) of TMA).

35. Where the taxpayer chooses to let the Revenue calculate the tax due but includes a claim for relief in a tax return form (whether from the outset or by amendment) which is clearly not relevant to the calculation of tax for the particular year of assessment, the Revenue may ignore the claim in its calculation of the tax under section 9(3) of TMA. It treats it as a claim made otherwise than in a return and Schedule 1A to TMA applies (section 42(11)(a) of TMA). In the procedure under that Schedule, if the Revenue considers that the claim contains obvious errors, it can amend the claim (paragraph 3). If satisfied that the claim is valid, the Revenue is to give effect to the claim promptly (paragraph 4). If not so satisfied, the Revenue may enquire into the claim and not give effect to it until the enquiry is completed (paragraphs 4(3) and 5). Thus the Revenue may collect the tax due for a year of assessment on the basis that the claim is not effective. On completion of the enquiry (paragraph 7), the taxpayer can notify the Revenue of an appeal (paragraph 9) and thus place the dispute before the tribunal.

36. The Revenue's submission, which I have accepted, that some entries in a tax return form are not part of the tax return for the purposes of, among others, sections 9 and 9A of TMA, may create avoidable uncertainty to taxpayers and their advisers. But that uncertainty could be removed if the return form which the Revenue prescribes (section 113 TMA) were to make clear which boxes requesting information were not relevant to the calculation of tax due in the particular year of assessment. In particular, the Revenue could make this clear where the form provides for the intimation of "stand-alone" claims which relate to another tax year.

www.bailii.org/uk/cases/UKSC/2013/69.html

3 PAYE AND EMPLOYMENT MATTERS

3.1 EMI share schemes and reorganisations

SI 2013/2796 has set 31 October as the day on which FA13 Sch2 para 31 comes into effect. This makes the requirements easier to meet for an EMI efficient re-organisation that enables a qualifying exchange of shares or the grant of a replacement option to be made.

www.legislation.gov.uk/uksi/2013/2796/pdfs/uksi_20132796_en.pdf

4 BUSINESS TAX

4.1 Senior accounting officer (SAO) rules

HMRC has sent a reminder on aspects of compliance with the SAO rules (with references to HMRC's SAO guidance).

"1) Notification.

The companies must notify each year to HMRC who the SAO is going to be for that year (SAOG13200). This is in addition to the actual Certificate below. It cannot be on the same form – so HMRC (in this case the CRM) must receive two documents from the companies. The Notification must be made after the company's financial year has ended (SAOG13400).

2) Certification.

The Certificate must be received by HMRC in hard copy by the date that the company's accounts are due at Companies House. It is not sufficient to submit an electronic version with a hard copy to follow (SAOG15700). Please note that it can take a few days for the hard copy to reach the intended recipient so sufficient time must be allowed for this type of delay.

One or more companies can be on the Notification and Certificate – or a combination of documents to cover all the companies in the group (SAOG15500). There must be a clear list of the companies covered by a notification/ certificate. Dormant companies need to be certified. Companies that have been struck off must be included on a final certificate after the end of its AP (SAOG15900). It is possible, for example, to submit one unqualified Certificate then a number of qualified ones where breaches have occurred.

Please ensure that the Notifications and Certifications are made correctly going forward. Failure to do this may result in a penalty being chargeable SAOG18000."

4.2 Unauthorised unit trusts

Following the draft issued in September (see item 4.1 Tax Update 30 September 2013), SI 2013/2819 has been issued and comes into force on 6 April 2014.

It contains provision about the treatment of the trustees or unit holders of unauthorised unit trusts for the purposes of income tax, corporation tax and capital gains tax, setting out:

  • the requirements for an unauthorised unit trust to be approved as an exempt unauthorised unit trust;
  • provisions for the taxation of gains and income of exempt and non-exempt unauthorised unit trusts as well as the tax treatment of the unit holders and trustees of those trusts;
  • provisions for the treatment of certain types of investment or disposal made by exempt unauthorised unit trusts.

www.legislation.gov.uk/uksi/2013/2819/pdfs/uksi_20132819_en.pdf

4.3 Loan relationship avoidance scheme

The First-tier Tribunal has heard a lead case for those groups who have undertaken a scheme designed to take advantage of a weakness in the loan relationship regime in 2003. The scheme operated as follows:

One group company, Versteegh Ltd ("the Lender"), made a loan (£102.45m) to another group company, Nestron Ltd ("the Borrower"). The terms of the loan required repayment of the principal to the Lender, and obliged the Borrower to issue irredeemable preference shares ("the Shares"), in an amount equivalent to a market rate of interest on the sum lent for the period of the loan, not to the Lender but to another group company, Spritebeam Ltd ("the Share Recipient"). The loan was repaid at the end of the loan period. Under the Loan Agreement, the Borrower issued a number of preference shares to the Share Recipient, having a value at issue of £3,528,631. The number and value of the shares were calculated so as to be equal to a market rate of interest on the sum lent for the period of the Loan.

The financial statements of the Lender for the relevant year, the year ended 31 December 2003 ("the Accounts"), did not recognise any interest income or other profit on the Loan. All group companies were UK resident.

The only reason for the design, structure and terms of the Loan was to obtain a tax advantage for the Lender and/or the Share Recipient (in that the entirety of any payments made by the Borrower would escape tax altogether in the hands of the Lender and/or the Share Recipient). The Borrower had a commercial need for the borrowing. The Borrower had no shareholding in the Lender or the Share Recipient, although the borrower and share recipient were 100% subsidiaries of the Lender.

The first question considered was whether the accounting in the lender was correct. The Tribunal concluded (after satisfying itself there was no conflict of interest) that the expert opinion of a member of the lender's audit firm was reasonable. That view was as follows:

  • In accordance with para 16 of FRS 5, one has to assess whether the transaction has given rise to new assets or liabilities for the Lender (the reporting entity) and whether it has changed the Lender's existing assets and liabilities. FRS5 para 52 (requiring the consideration of the position of all parties) ensures that all pertinent facts are considered in making the analysis, but para 16 qualifies this by imposing a strict discipline to consider the substance of the transaction, requiring the analysis to be based on changes to assets and liabilities.
  • The Lender was considered to have the right to receive back the principal loaned and the right to insist that the Shares were issued by the Borrower to the Share Recipient. In the view of the taxpayer's expert, it could not be assumed that the value of the Lender's right to insist on a transfer of shares between its subsidiaries was the same as the value of a right to receive those shares; they are not the same thing.
  • The conclusion was therefore that the right of the Lender to insist that the Shares were issued to the Share Recipient was not a valuable asset of the Lender in its own right; it could have value only in so far as it increased the value of the Lender's investment in the Share Recipient.
  • On the question of value, the taxpayer's expert considered both the value to a third party of the right to require that the Shares are issued to the Share Recipient, and whether the Lender would itself be worse off if it ceased to have that right. He concluded that an unrelated third party would pay nothing for such a right as it would be unable to extract any value from it. The conclusion was therefore that the Lender should be economically indifferent to whether or not the transfer of shares took place. Although the Lender had obtained the right to insist on a transfer of value between two wholly-owned subsidiaries, the Lender was not better off overall as a result of receiving that right, nor was it economically affected by whether or not it chose to exercise that right.

The Tribunal also concluded that what was ICTA s786(5) (now CTA10 s779) did not cause any income to be assessed on the lender as it had not surrendered or foregone any income as part of the transactions. Even if they had been wrong on this, they concluded that what was FA96 s80(5) (now CTA09 s464) would have prevented a charge under ICTA s786(5).

With respect to the shares received by the share recipient, the taxpayer argued that there was no source and that their receipt was akin to a voluntary gift. The Tribunal concluded the receipt of the shares arose from obligations under the loan agreement, which was therefore the source, and that the receipt of the shares was taxable on the share recipient under what is now the 'other income' provisions (then Sch D case VI, and what is now CTA09 part 10 chapters 7 & 8).

On the question of whether the loan had an unallowable purpose (what was FA96 Sch9 para 13 and what is now CTA09 s441 & s442), the Tribunal commented that the mere presence of a commercial purpose cannot rule out the existence of tax avoidance as being a main purposes, the mere existence of a tax advantage, known to the taxpayer, does not on its own render the obtaining of that advantage a main purpose. All the authorities point to the question being one of degree and significance to the taxpayer, and that the question is one of fact for the tribunal, having regard to all the circumstances.

On the facts the Tribunal concluded that tax avoidance was not a main purpose, and therefore no part of the loan relationship had an unallowable purpose.

www.pumptax.com/news/17897

http://clients.squareeye.net/uploads/pump/documents/eddie061113.pdf

5 VAT

5.1 Partial exemption and road fuel scale charges

HMRC has issued Brief 33/13 to remind taxpayers that the partial exemption concession on Road Fuel Scale Charges (RFSCs) will be withdrawn with effect from 1 January 2014. The Brief comments further:

Partly exempt businesses who wish to continue to use RFSCs from 1 January 2014 must account for the full amount of RFSCs applicable to their vehicles. Input tax on road fuel will continue to be recoverable in accordance with the business's agreed partial exemption method.

While HMRC consider that the following 'fuel sector' formula will give a similar overall VAT result to that realised under the concession, businesses may propose their own alternative.

The suggested formula to calculate the recoverable input tax on road fuel is as follows:

VAT on fuel scale charges + ((VAT charged on fuel purchased in the period - VAT on fuel scale charges) x PE recovery rate)

For example;

VAT on scale charge due - £300.00

VAT incurred on road fuel - £630.00

PE recovery rate 40%

Calculation =300 + ((630 - 300) x 40%) = 300 + (330 x 40%) =300 + (132.00) = £432.00 input tax recovery.

The effect of the suggested formula is consistent with the concession that is being withdrawn.

If as a result of the withdrawal of this concession or for any other reason businesses do consider that their current Partial Exemption Method will not give a fair and reasonable recovery of input tax they should contact HMRC requesting a new method. Until formal approval is granted businesses should not adopt this formula or make any other change to their partial exemption calculation method.

Along with any new method proposal businesses need to submit a declaration that the proposed method is fair and reasonable. The declaration needs to apply to the whole method not just the fuel sector. See Public Notice 706 Partial exemption for more information on the declaration.

Another option to ensure a fair and reasonable recovery of VAT following the withdrawal of the concession that does not require a new Partial Exemption Method is to keep accurate mileage records that would allow apportionment of the input tax incurred on road fuel so that only the portion relating to business use is included in the partial exemption calculation. No deemed supply would arise and so the RFSC would not apply.

Alternatively, where taxpayers have a very low partial exemption recovery rate they may prefer to claim no VAT on road fuel and also avoid the need to consider the RFSC.

www.hmrc.gov.uk/briefs/vat/brief3313.htm

5.2 VAT rulings for cross border transactions

HMRC is participating in an EU trial of VAT ruling requests for complex cross-border situations, up until 31 December 2013.

A business that is planning cross-border transactions to one or more of the participating Member States can make a request for a ruling to HMRC, provided they are registered for VAT in the UK. The request must comply with the conditions for non-statutory clearance (outlined in HMRC guidance) and relate to a complex, cross border transaction in two or more of the following Member States:

  • Belgium
  • Estonia
  • Spain
  • France
  • Cyprus
  • Lithuania
  • Latvia
  • Malta
  • Hungary
  • Netherlands
  • Portugal
  • Slovenia
  • United Kingdom

If the request is accepted and consultation is specifically requested, the Member States will consult on the issue but there is no guarantee that they will agree on the correct VAT treatment of the situation envisaged.

www.hmrc.gov.uk/vat/managing/problems/getting-answers.htm#3

5.3 Response to decommissioning relief consultation

An updated version of HMT guidance on applying for a decommissioning relief deed has been published.

www.gov.uk/government/consultations/decommissioning-relief-deeds-increasing-tax-certainty-for-oil-and-gas-investment-in-the-uk-continental-shelf

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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