UK: Weekly Tax Update - Monday 9 December 2013

Last Updated: 17 December 2013
Article by Smith & Williamson

1 GENERAL NEWS

1.1 Autumn Statement

Most of the rumours reported in the press prior to the Chancellor's Autumn Statement turned out to be true which raises the question whether Autumn Statement and Budget secrecy is now a thing of the past.

Mr Osborne confirmed that CGT will be imposed on gains by non-residents who dispose of UK residential property. This new charge will not come in until April 2015 and it appears that it will only apply to gains accruing after that date which suggests that owners will be able to rebase the value of their properties. It will be some time before we know the detail of the changes, but the delayed introduction will give time for sales to be completed free of CGT in the interim.

As regards residential property owned by residents, currently the last three years of ownership of a property which has a qualifying period of private residence relief are ignored so as to give time for the owner to sell after moving out without losing the tax exemption. This is to be reduced to 18 months from April 2014.

Mr Osborne confirmed that certain spouses and civil partners will be able to transfer £1,000 of their personal allowance to their spouse or partner with effect from April 2015. However this proposal will be subject to tight conditions and will only be available where neither is liable to income tax above the basic rate and it appears that only one-third of married couples will potentially benefit. Consequently this is rather more of a sound-bite than a meaningful relief.

We were already aware that new rules would be introduced to restrict the ways that mixed partnerships (comprising both individual and corporate partners) allocate profits and losses. Draft legislation was published alongside the Autumn Statement but the wording is very imprecise so that the position will remain uncertain for many businesses and many may well decide that they need to completely restructure.

The Chancellor's basic message was that the economy is improving, but more work needs to be done to stimulate growth and jobs. This included removing employers' NIC (which he called 'the jobs' tax') in respect of employees under 21, but not until April 2015.

He indicated that the reduced rates of corporation tax (falling to 20% by 2015) were leading to increased investment, thereby justifying the policy. This gives useful clarity which should help reassure internationally mobile businesses.

The Chancellor reiterated the focus on tackling tax avoidance and evasion; however his estimate that an additional £9bn will be collected over the next five years sounds optimistic bearing in mind the work done to date and the receipts already generated. He introduced a range of measures aimed at reinvigorating Britain's high streets. This should help give a fillip to struggling retailers up and down the country.

www.smith.williamson.co.uk/autumn-statement

1.2 Finance Bill 2014 - Draft Legislation

HMRC has confirmed that further documents will be published on 10 December including draft clauses for Finance Bill 2014, Tax Information and Impact Notes and Responses to Consultation on Budget announcements.

2 PRIVATE CLIENT

2.1 HMRC guidance on the tax treatment of manufactured dividends from overseas securities

HMRC has issued new guidance to cover the fact that from 1 January 2014, there will be no requirement to deduct tax from manufactured overseas dividends, and so tax should not be deducted from that date.

www.hmrc.gov.uk/specialist/man-oseas-divs.htm

2.2 Intergovernmental agreements (IGAs) with British Overseas Territories

Bermuda, Montserrat, the Turks and Caicos Islands and the British Virgin Islands all signed IGAs with the UK in London during the week of the Joint Ministerial Council (w/c 25 November).

The agreements with these territories (and the one with the Cayman Islands signed on 5 November) are non-reciprocal, meaning that UK financial institutions will not have any reporting obligations under the terms of the agreements.

www.hmrc.gov.uk/fatca/index.htm

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

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

www.hmrc.gov.uk/fatca/turks-caicos.pdf

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

3 PAYE AND EMPLOYMENT MATTERS

3.1 Whether options are regarded as legal options

HMRC's most recent Employment Related Shares and Securities Bulletin included a note that its guidance on the tax treatment of options had been updated. This update includes a new page (ERSM110015) discussing securities options and legal options.

The HMRC guidance includes the following:

The term "legal option" will commonly be understood to describe an option which is a contractual legal entitlement given by one party (usually the employer) to another, for consideration or under deed or seal (see also ERSM110010). Where the option is granted under foreign law, other factors may be relevant.

The case of Abbott v Philbin (see ERSM110100) concerned a contractual option. The option in that case could be turned into money at the date when it was granted, even though it could not be transferred: Mr Abbott could have made an agreement with a third party to exercise the option and transfer the shares to that third party.

References in this guidance to "legal options" (see for example ERSM70410) should be read as shorthand for rights to acquire securities that themselves constitute money's worth for general earnings purposes on acquisition (see Employment Income Manual at EIM00530) in the way that the option in Abbott v Philbin constituted (in the taxation language of the time) a "perquisite" at the date of grant.

We do not accept that the same can be said for all rights to acquire securities. Long Term Incentive Plans (LTIPs) (see ERSM110010), Restricted Stock Units (RSUs) (see ERSM20192 onwards) and similar arrangements conferring rights to acquire securities are securities options but often involve an agreement or promise that falls short of being a legal option. In such cases we would not regard the acquisition of the right as the receipt of money's worth and, instead, the value of the securities awarded under the plan is likely to be chargeable as money's worth at the time of the acquisition of the securities themselves.

This has an impact for employees who acquire options in a period of non-UK residence. If the option is regarded as a 'legal option', then there is no UK income tax on the award if the individual is not working in the UK at the time of the grant and the award is not made in the expectation of a move to the UK. This is so even if the individual exercises the option when in the UK, having received the award before coming to the UK.

The updated guidance seeks to clarify HMRC's view of what is a 'legal option' for these purposes. If the option is not regarded as a 'legal option' and is exercised during a period of UK residence after having received the award during a period of non-UK residence then UK income tax will be due on the proportion of any gain relating to the period of UK residence.

www.hmrc.gov.uk/manuals/ersmmanual/updates/ersmupdate141113.htm

www.hmrc.gov.uk/manuals/ersmmanual/ersm110015.htm

3.2 Guidance on employee shareholder status

HMRC has issued guidance on when it could challenge employee shareholder status in respect of the award of employee shareholder shares. It comments:

Providing all of the statutory conditions for employee shareholder status are met, or an employee shareholder agreement satisfies the conditions set out in Department for Business, Innovation & Skills guidance, HMRC do not anticipate challenging an individual's status as an employee shareholder for the purposes of these special tax rules. This includes cases in which statutory employment rights foregone under an employee shareholder agreement are reinstated by contract.

However even when a person is an employee shareholder, these special tax rules will not apply in certain cases, for example where the employee shareholder and anyone connected to them have a 'material interest' in the company because they hold 25 per cent or more of the voting rights in that company . Further details are set out in the more detailed tax guidance, which can be accessed from this page.

There are six conditions that must be met to achieve employee shareholder status. These are:

  • The individual and the company must both agree that the individual will be an employee shareholder.
  • The employer must give the individual fully paid up shares in the employer's company or employer's parent company, and they must be worth at least £2,000.
  • The individual must not pay for the shares in any way.
  • The employer must give the individual a written statement of the particulars of the status of employee shareholder.
  • The individual must obtain advice from a relevant independent adviser on the terms and effect of the written statement. The company is required to pay for that advice whether the individual accepts the job or not.
  • The individual cannot accept or agree to an employee shareholder job until 7 days have passed following receipt of the advice. The 7 days commence on the day after the advice has been received.

www.hmrc.gov.uk/employeeshareholder/index.htm

www.gov.uk/employee-shareholders

4 BUSINESS TAX

4.1 Partnership profit/loss allocation arrangements

On 20 May 2013 HMRC issued a consultation document proposing the following changes to take effect from 6 April 2014: (i) removing the presumption of the self-employed status of LLP members for PAYE and NIC purposes and (ii) the tax treatment of profit & loss allocation schemes.

Draft legislation was issued on 5 December covering the second aspect of these proposals – the profit/loss allocation arrangements.

In summary the arrangements will catch partnership structures where individual partners have a corresponding company partner which receives profit allocations that will ultimately be used for their benefit. It will also catch arrangements where individuals hold their interest in a partnership through a corporate vehicle, and also where the individual partners benefit from a corporate partner accumulating profits that are used for the partnership as working capital. The fact that the legislation refers to individuals and non-individuals, rather than individuals subject to income tax and those not, means that international partnership structures where interests are held through valve partners who are individuals should not be affected.

In October HMRC announced that there would be arrangements for partnerships to pay the tax on deferred profit arrangements subject to AIFMD deferral rules, with a credit for the tax deducted when the deferred profits are released to the individual. It is expected further legislation on this aspect will be available when the rest of the draft Finance Bill 2014 legislation is released on 10 December.

Commencement

The notes to the draft legislation indicate that the measures dealing with profit allocations come into force on 5 December 2013. However the draft legislation appears to indicate it only applies to partnership accounting years that start on or after 6 April 2014, with accounting periods which straddle that date being divided so that a new period of account is assumed to commence on 6 April 2014.

HMRC has confirmed to us that no tax charge can arise as a result of the new rules until 6 April 2014. It indicated that the reason for announcing anti avoidance rules on 5 December 2013 is to ensure that certain steps partnerships might otherwise take during the period between 5 December 2013 and 6 April 2014 to circumvent the proposed rules on mixed memberships will be ignored. We await further guidance.

The rules applying to loss allocation arrangements have effect in relation to losses made in the 2014/15 tax year. Similar rules apply to periods of account that straddle 6 April 2014 for the loss allocation rules as apply for the profit allocation rules.

Profit allocation rules

There are two aspects to the profit allocation rules:

  1. Those applying to partnerships with both individual and non-individual partners
  2. Those applying to partnerships with non-individual partners, whose profit allocation represents services performed by an individual who is not a partner.

In both cases the 'excess profit' or 'deferred profit' allocated to the non-individual partner is to be re-apportioned to the relevant individual.

The deferred profit provisions apply where the individual's share of the profit (assuming he was a partner if he is not) is less than it would be because of the allocation of the deferred profit to the non-individual, whether performance conditions attach to the deferral or not.

There is an excess profit where the profit allocated to the non-individual exceeds:

  • what is regarded as a notional return on capital (a return by reference to the time value of money at a commercial rate of interest taking account of all the circumstances, less any return actually received in respect of the non-individual's capital contribution to the LLP that is not included in its profit share); and
  • the arms-length rate for services that the non-individual supplies (ignoring any services provided by a partner of the firm.

In either (a) or (b) above, the new rules apply if the individual (or any person connected with them) has the power to enjoy the profits of the non-individual. Power to enjoy means being able to control or benefit from the non-individual's profit. Payments from the non-individual to the individual are excluded from the allocation of profits to the non- individual unless they arise from arrangements where the, or a, main purpose is tax avoidance.

Loss allocation arrangements

Where trade or property losses are allocated to individuals as a result of arrangements where those trade or property losses would otherwise be allocated to a person who is not an individual (whether a partner or not) with the aim of accessing sideways loss relief, relief for property losses against general income, carry forward trade or property loss relief, terminal trade loss relief or capital gains relief, then no relief is given for the individual's loss. The draft legislation here does not distinguish between the element of the loss that would otherwise have been allocated to the non-individual, and appears to disqualify the whole of the loss allocated to the individual.

4.2 Refinement of the regulations concerning gross payment of interest from Authorised Investment Funds (AIFs)

SI 2013/2994 extends the ability of AIFs to make gross payments of interest distributions where the funds are clearly marketed to non-UK residents. This aspect of the regulations takes effect for units acquired on or after 19 December 2013. The regulation also removes the reference to "ordinary residence" for 2014/15 onwards.

www.legislation.gov.uk/uksi/2013/2994/pdfs/uksi_20132994_en.pdf

4.3 Whether a member of an LLP can appeal against an amendment to a partnership return included in a closure notice

Frank Warren is a member of MCashback Software 6 LLP which is the appellant in this appeal. HMRC enquired into the LLP's partnership return for 2006/07 and issued a closure notice on 28 June 2011 denying first year allowances. On 28 July 2011 the LLP lodged an appeal with the First-tier Tribunal. On 12 January 2012 HMRC served its notice of case, but during 2012 the designated members of the LLP resigned and the appeal had not progressed.

On 17 May 2013 Bradshaw Tax Services (BTS) on behalf of Mr Warren made an application for permission to continue the appeal in the name of the appellant partnership and/or in his own name as a member of the appellant partnership. HMRC opposed this application. There were 20 members of the LLP and apparently no consensus as to whether the appeal should be continued. However there was no person duly authorised to act on behalf of the LLP.

The Tribunal considered the following points in the interests of clarifying aspects of partnership tax administration:

  1. Did Mr Warren have authority or standing to pursue this appeal on behalf of the appellant?
  2. Should Mr Warren be added as a party to the appeal or substituted as the appellant?

The FTT concluded that as the LLP had not properly authorised Mr Warren to pursue the appeal on behalf of the LLP, he could not do so. In reaching this conclusion the FTT commented that if Mr Warren was unhappy with the action taken by the LLP his recourse would be against the LLP or its other members.

The Notice of Appeal was originally lodged by a Mr Stephen Marsden who appears to have been a Designated Member at the time it was lodged. The assumption was made have authority, a subsequent finding that he was acting outside his authority under the Partnership Agreement would amount to a change in circumstances. Similarly the resignation of the Board and the lack of internal consensus amongst the members would also amount to a change in circumstances. The FTT was therefore satisfied there has been a change in circumstances so as to engage Tribunal Rule 9(1)(b), permitting the Tribunal discretion to substitute a party to the appeal.

The Tribunal then went on to consider whether an individual partner was entitled to appeal an amendment to a partnership return under TMA s31. It considered a reference by Judge Bryce given in the Morgan and Self v HMRC case (FTT 2009) to discussions in the Court of Appeal case of re Sutherland & Partners' Appeal [1994] STC 387, where Sir Donald Nicholls VC commented:

"Here, having carefully considered the procedural code for tax appeals set out in Part IV of the [TMA 1970] we are of the clear view that Parliament must have intended that one jointly assessed taxpayer shall have a right of appeal even if the other person or persons named in the assessment do not wish to appeal. Accordingly, section 31 is to be construed as enabling any person assessed to tax to bring an appeal in respect of the assessment, whether he has been assessed alone or jointly with others."

Having concluded there was a right of appeal, the FTT then went on to consider whether Mr Warren could be substituted as the appellant.

The Partnership Agreement provides that the Board shall comprise the "Designated Members" and such other persons who may be co-opted on to the Board. There must be at least two Designated Members. If at any time there are less than two Designated Members then all members become Designated Members and members of the Board. The Board may delegate a matter to any member. The FTT concluded that Mr Warren was a Designated Member and therefore a member of the Board, and therefore entitled to access to all necessary information and documentation held by the LLP.

In all the circumstances and taking into account the overriding objective of dealing with cases fairly and justly the FTT decided that it was appropriate for Mr Warren to be substituted as the appellant. However it gave the appellant partnership a further opportunity to pursue the appeal.

The FTT accepted HMRC's submissions that the partnership assessment and appeal provisions are intended to ensure that there are defined formal procedures to regulate the dealings between the respondents and partnerships or LLPs. Otherwise the self- assessment procedure as it applies to partnerships would be practically unworkable. However it commented that a distinction is to be drawn between the practicality of the administrative regime and appeal rights designed to ensure that there is an opportunity for taxpayers to challenge the amount of tax claimed by HMRC. In any event there are procedures available to the tribunal to minimise duplication if for any reason a number of partners separately seek to appeal an amendment to a partnership return.

www.bailii.org/uk/cases/UKFTT/TC/2013/TC03061.html

5 VAT

5.1 Whether dental payment plan services are exempt from VAT

In a case involving DPAS Limited (DPAS), the First-tier Tribunal has concluded that supplies in relation to the administration of dental payment plans are exempt services supplied to the dental patients, and the arrangements put in place to achieve this were not an abuse of rights.

Following the 2012 decision of the Court of Appeal in the case of Axa Denplan, DPAS changed the terms of its dental plan collection arrangement with effect from 1 January 2012 so that its contract terms specified an agreement directly with the dentist's customer rather than collection on behalf of the dentist. It sent letters notifying customers of the change and inviting them to accept the changed terms, indicating that it would assume acceptance if customers continued to pay but did not expressly confirm agreement. DPAS received acceptances from 30% of the existing customer base.

The Tribunal decided that by continuing with payment the 70% of customers who did not expressly confirm their agreement to the new contract terms, did in fact agree to them. This conclusion was reached after considering case law and also the guidance in "Chitty on Contracts" concerning exceptions to the general rule that an offeree is not bound by silence.

The FTT also distinguished the DPAS case from AXA Denplan as the contract was directly with the dentist's customer (and therefore a service to the debtor before a debt was created, and not to the creditor) in contrast with Axa Denplan whose contract was with the dentist (a service to the creditor) and therefore a debt collection service. As a result the Tribunal concluded DPAS' services were exempt supplies. The identity of the person to whom the services were supplied was a significant factor in reaching this conclusion, and on the DPAS facts it was difficult to characterise DPAS' services as debt collection and administration. As there was no policy prohibiting the offering of dental plan services to individual customers, the Tribunal could see no argument for applying the Halifax 'abuse of rights' principles to the arrangements adopted.

www.bailii.org/uk/cases/UKFTT/TC/2013/TC03058.html

5.2 Repayment supplement

The Upper Tribunal has overturned the First-tier Tribunal's decision in a case involving Our Communications Ltd that repayment supplement is not dependent on the claim having been made in a return submitted on time. The Upper Tribunal concluded HMRC were correct in determining that VATA s79(2) implied that the claim must be submitted in a return submitted on time. The concluding rationale was as follows:

First, section 79(6) defines "requisite return or claim" for the purposes of section 79 as meaning, in the case of a payment, the return for the prescribed accounting period. It is the requisite return or claim that is referred to in two out of the three conditions in section 79(2 (namely (a) and (c)), in the regulation making power for computing the relevant period in section 79(3) (see (a) and (b)) and in the limitation on that power contained in section 79(4). Thus, in the case of a payment, the whole scheme of section 79 revolves around the return.

Secondly, while it is true that section 79(2A) refers to "a return or claim", rather than "requisite return or claim", it seems to me to be implicit that the words "a return or claim" refer back to the return or claim mentioned in section 79(2)(a) and (b). I consider that it would be very odd for the words "return or claim" in section 79(2A) to have a wider meaning than the same words in section 79(2), and especially odd for the word "claim" to refer to different things altogether in the two contexts. Furthermore, I agree with HMRC that the former reading is supported by the statutory history and that the First-tier Tribunal's interpretation gives rise to anomalous results that Parliament could not have intended. I am not persuaded by counsel for Our Communications' argument that it is for Parliament to correct any anomalies that may result from the clear wording of the existing legislation, since I do not consider that, considered as a whole, the wording compels the conclusion for which Our Communications contends.

Thirdly, as counsel for HMRC pointed out during the course of his oral submissions, the limit of 5% (or £250) contained in section 79(2)(c) only applies to "the amount shown on that return or claim", that is to say, the requisite return or claim referred to in section 79(2)(a). In the case of a claim to payment, that means on the return. The First-Tier Tribunal's interpretation of section 79 would enable this limit to be circumvented simply by making a claim which is more than 5% greater than the amount actually due by letter. That cannot have been Parliament's intention.

www.tribunals.gov.uk/financeandtax/Documents/decisions/HMRC-v-Our-Communications-Ltd.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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