UK: Private Client Tax: In The Spotlight - May 2014

Budget 2014 – good news for pensioners, savers and entrepreneurs

By Tina Riches

This year's Budget was an opening salvo to next year's general election campaign. The Chancellor announced a raft of populist measures across personal and business taxes, with the most unexpected change being the radical shift for pensions. This was all against a backdrop of an ever-sharper focus on eliminating perceived tax avoidance and noncompliance.

Pensioners to benefit

There was good news for pensioners, all of whom are likely to benefit in the long run from proposals to make it more flexible for them to draw their pension. The Government plans to abolish the legal requirement to acquire an annuity from 2015, enabling retirees to choose when and how they take money from their pension pot.

Those on lower and medium incomes will benefit from pensioners' bonds, reducing the starting savings rate to zero, from 10%, and widening the band on which this applies.

Savers rewarded

There was a raft of measures to reward savers, not least a useful change in the individual savings account (ISA) rules. The ISA threshold will increase to £15,000 per annum from 1 July 2014. The allowance will be available for both cash and other ISAs, with a planned expansion of the types of investments allowed and the ability to move funds between them.

Personal allowances

The income tax allowance will increase to £10,500 from April 2015. The higher-rate threshold has been increased, for the first time in this parliament, to £41,865, with a further 1% increase to £42,285 planned from April 2015. Those earning under £100,000 per annum will generally pay less tax to differing degrees.

SEIS made permanent

The Seed Enterprise Investment Scheme (SEIS) is designed to help small, young companies raise equity finance and is already encouraging growth. Subject to meeting the qualifying conditions, investors can potentially benefit from income tax relief at 50% on up to £100,000 of investment per tax year, capital gains tax (CGT) exemption on the disposal of SEIS shares and CGT relief on other gains of up to 50% of the qualifying SEIS investment.

AIA doubled

In a measure welcomed by entrepreneurs, the Annual Investment Allowance (AIA) will be doubled to £500,000 and extended to 31 December 2015. Increasing the allowance should encourage further capital investment by UK companies. However, care needs to be taken to ensure that where accounting periods span the dates when the allowance changes, purchases are timed appropriately so that reliefs are not lost.

R&D tax credits for SMEs increased

The research and development (R&D) tax credits payable to SMEs will increase from 11% to 14.5%. This should provide additional financial support to those companies that incur qualifying R&D expenditure. This is a hugely under-used tax concession that is applicable to a wide range of businesses, not just in research-focused sectors such as pharmaceuticals.

The long arm of HMRC

Two new measures will enable HM Revenue & Customs (HMRC) to collect tax revenues more swiftly.

  1. The Government plans to give HMRC powers to take money from the bank accounts of those it thinks owes tax but have chosen not to pay. There are concerns about the veracity of HMRC's records in respect of the amounts owed. Given HMRC's tendency to pursue incorrect PAYE debts on occasion, this seems like the wrong time to be bringing in such a measure. There is also a wider human rights issue to consider.
  2. It is proposed that taxpayers involved in tax arrangements disclosed under the Disclosure of Tax Avoidance Scheme (DOTAS) rules and those that HMRC challenge under the General Anti-Abuse Rule (GAAR), will have to pay tax and national insurance contributions up front, while the dispute is being resolved.

These measures will need careful design and adequate safeguards, especially at a time when HMRC has been allocated more resources to tackle non-compliance. While tax evasion and the abuse of tax rules should be prevented, it is vitally important that those taxpayers inadvertently caught up in this changing tax environment can rely on a fair justice system.

Tax breaks reduced for owners of second homes

By Daniel Fowler

Residential property owners need to be aware of some proposed changes, which will have a significant impact on their CGT liabilities.

Final period exemption reduced

If a property has, at any point, qualified as an individual's main residence then the final 36 months would have been covered by relief from CGT, even if the individual did not physically occupy the property in that final period.

Changes to the rules, however, mean that where contract for the sale of a property is exchanged on or after 6 April 2014, the final 36-month period will be reduced to 18 months.

Individuals with multiple private residences and a valid main residence election in place, should review their CGT position.

In a few cases, where an individual is moving into long-term residential care or if they are disabled, the final 36-month period will continue.

Non-UK residents liable for UK CGT

At present, non-UK residents are only liable for UK CGT on the sale of UK business assets. It is proposed, however, that non-UK residents should be required to pay CGT on the sale of UK residential property from April 2015.

Although the exact proposals are yet to be finalised, the Chancellor has advised that the charge will only apply to gains arising from April 2015, which implies that there will be some form of rebasing.

The general principle of double tax treaties is that the country in which the asset is situated has primary taxing rights. The UK will therefore have primary taxing rights on gains from UK residential property and tax credit relief will need to be claimed in the jurisdiction in which the taxpayer is resident for tax purposes.

A sting in the tail is that the current consultation proposes to abolish the right for all taxpayers, including UK residents, to elect their main residence. In future the main residence could be decided based on the quality of occupation or the number of days spent in a property, requiring everyone with more than one home to retain records of occupation. This would be a significant complication for UK residents.

Divorce – a foreign affair

By Julia Rosenbloom

Whatever the reasons for a marital breakdown, tax issues will almost inevitably require consideration. In the last edition of In the Spotlight, I talked about the importance of timing in the case of a divorce where there are no international aspects. Timing in such cases is still significant but the opportunities for management of the tax liabilities which can arise tend to be more limited because we only have the tax year of separation to make 'tax neutral' transfers. After that, transfers between separated spouses are, in most cases, treated as though there has been a sale for market value consideration.

Example: 'non-dom' but UK resident

The issues are more complex for non-UK domiciled individuals, but they also present greater opportunities for tax efficiency. Let us use Claude and Marie-Claire by way of example. Both are non-UK domiciled but UK resident. As part of a divorce settlement, Claude is required to pay Marie-Claire a lump sum of £1m to fund her UK lifestyle. To facilitate this, Claude intends to realise an overseas investment portfolio, which is standing at a substantial gain overall.

If, prior to the divorce, Claude sells the investments and transfers the sale proceeds to Marie-Claire in the UK, any gains on the investments will be charged to UK CGT on Claude. If, however, the sale proceeds are not transferred into the UK until after they are divorced, it is possible that there will be no UK CGT.

In order to obtain this beneficial treatment, Claude would have to make a claim for the 'remittance basis' of taxation to apply for the tax year in which he realises the investments (though not necessarily for the year in which the proceeds are actually brought into the UK) and he would have to pay a levy of between £0 and £50,000 (depending on the length of time that Claude has been UK resident). Provided the circumstances are right, overall this may be an inexpensive way of achieving the original objective.

Such circumstances clearly offer great opportunities to produce a more tax-efficient divorce settlement, which is in the interests of both parties. The law may help determine which assets form part of the settlement, as well as when and how the practical elements are fulfilled.

HMRC looks to tighten its grip on tax avoidance enquiries

By Andrew McKenna

HMRC has recently published proposed new plans to facilitate the accelerated payment of tax in respect of tax avoidance schemes. This has sent a clear message to those involved in tax avoidance that they will be targeted.

One example relates to those that have engaged in past or present DOTAS registered schemes. Where tax arrangements are under enquiry, individuals and companies will be asked to pay the tax due as if the planning had not been undertaken. This would be with the prospect of HMRC repaying the money if its challenge is unsuccessful. This approach would also apply to arrangements that HMRC consider caught by the new GAAR.

Many individuals and companies could find themselves facing significant tax demands and needing advice in terms of potential bankruptcy or insolvency. This will encourage taxpayers to try and bring enquiries – many of which have been ongoing for years – to a conclusion, either by settling with HMRC or taking it to a tax tribunal.

HMRC's intention is to implement this new legislation in the upcoming Finance Act in the hope that it will deter those considering entering into tax avoidance arrangements and speed up the enquiry process into current schemes. With 65,000 tax scheme users currently waiting for resolution to HMRC enquiries, this will be a significant step change in that process for HMRC and users alike.

Anyone engaged in these types of tax avoidance schemes should consider their options and seek professional advice.

Oh my, CGT revisited: 'Omai' painting declared exempt

By David Chismon

In what some might view as a 'perverse' result, the Court of Appeal has ruled that the famous painting of 'Omai' by Sir Joshua Reynolds is exempt from CGT – despite it selling for £9.4m in 2001.

The case revolved around whether the painting was 'plant' and, if so, whether it should be regarded as a 'wasting asset' and therefore be exempt from CGT.

The painting was owned by the late Lord Howard and later by his executors. It was exhibited at Castle Howard, both before and after Lord Howard's death. The house – which was made famous as a film location for Brideshead Revisited – was owned by a company that operated a 'house opening' business and exhibited various works of art, including the Omai.

The executors successfully argued that the painting was plant within the definition provided in an 1887 case (Yarmouth v France). In addition and, most importantly, for the wasting asset rules, the Court of Appeal has confirmed that the painting was plant even though it was used by another entity, i.e. the operating company, which did not own the painting.

HMRC may well seek permission to appeal to the Supreme Court or the Government may change the law to block similar claims in the future. At present, however, it appears that an opportunity to exempt chattel disposals is available, subject to similar circumstances. Therefore owners of valuable chattels that are on display in house opening businesses, operated by another entity, should review any recent sales of chattels and consider making the appropriate claims to HMRC. Meanwhile, as the court said, HMRC must "take the rough with the smooth".

Flooding – some tax Implications

By Brigitte Potts

As the flood waters recede, it is important that those affected take advice on the tax implications of any damage that their property may have incurred. VAT and direct tax issues will need to be considered.

Possible direct tax implications

  • To the extent that there has been an insurance receipt then one needs to consider whether there are any CGT implications. The rules are not always straightforward and very much depend on how the insurance proceeds are used. For example, if the insurance monies are used to restore the asset then this should not lead to a CGT disposal. If only part of it is used for this purpose, there may be a partial CGT disposal and advice should be sought on methods of mitigating any liability. The position can be complicated where insurance proceeds are received for damage to plant and machinery, where there is usually an interaction with the capital allowances regime.
  • Where insurance proceeds are received to compensate for the loss of profits or stock, they are likely to be taxable receipts of the business.
  • Insurance proceeds that cover the cost of repairs, redecoration or similar will again be taxable to the extent that the underlying work would have been tax deductible. In essence, there is a netting-off of the receipt and expenditure.

Possible VAT implications

  • Where a business is fully taxable and the flood damage is to assets or stock, the VAT charged on the cost of any remedial work or the replacement of assets and stock can be recovered under normal rules. In such cases, the insurance company will generally pay only the net amount of the costs incurred.
  • If a business is fully or partially exempt, or the damage has been done to assets with which you only make exempt supplies – a rental cottage for instance – then you should inform the insurance company that you will not be able to recover the full VAT on the costs. This is to ensure that your business does not suffer any further as a result of the flood and that the insurance company pays to you the full cost of any remedial work or replacement of assets.
  • Any compensation paid for loss of income will be outside the scope of VAT.
  • If you are a private individual or the damage is to assets not used in the business, then VAT will not be reclaimable. You should again ensure that the insurance company pays the gross amount of any costs, including VAT, less any excess.

Finally, there may be accounting issues to consider. Under UK GAAP, receipts will generally be included in the same period in which the loss/expense was incurred. It may be, however, that the actual cash is not received until some time after the tax is due, which could lead to cash flow problems. If this position is likely to arise then it is important to seek advice, since it may be possible to agree a payment plan with HMRC.

TECHNICAL CORNER

Did you miss the 31 January tax return deadline?

By Lee Blackshaw

HMRC estimates that almost 7% of those required to submit a 2012/13 tax return missed the 31 January 2014 online filing deadline. Most are aware of the £100 penalty for missing this date. However, few are aware that this penalty can quickly rise to £1,300 or more within a few months.

Accumulating charges

In addition to the £100 penalty, those who file their tax return late risk being hit by up to 90 daily penalties, at £10 a day, from 1 May. If the return has not been submitted by 31 July, there is a further penalty of the higher of £300 or 5% of the tax liability shown on the return, which means that the costs can soon add up.

As well as penalties, there is interest on any tax not paid by 31 January and further penalties for tax paid after 30 days or more. So doing nothing or delaying matters can prove very expensive.

The child benefit tax trap

An additional problem for 2013 is that some taxpayers with income over £50,000 who haven't had to file a tax return before may now need to if they, or their partner, have received child benefit. This can apply even where the child is not their own, e.g. from a partner's previous relationship.

The charge came into effect for child benefit entitlement on 7 January 2013. As an example, if the child benefit received from 7 January to 5 April 2013 was £243 and the income of the partner with the higher income was between £50,000 and £60,000 for the year, part of the £243 would be clawed back in tax. If the income of the partner with the higher income was over £60,000 then the full £243 would be recouped as additional tax.

All bad news?

There are cases where a tax refund may be due. This can arise due to overpayments of PAYE, expenses claimable against tax or tax relief for gift aid charitable donations, pensions or trading losses. Reliefs are also available for tax-efficient investments. In addition, HMRC may accept a 'reasonable excuse' for missing a deadline.

The most important thing is to take action. Speak to HMRC or to your Smith & Williamson tax adviser as soon as possible and, ideally, get your tax return submitted and pay any tax owed immediately to minimise further penalties.

Common questions

  1. I've not submitted my tax return - can I wait until HMRC contacts me? No, the onus is on you to inform HMRC if tax is due.
  2. What if I don't know if my partner has claimed child benefit or if they earn more than me? You can ask HMRC for limited information about your partner's finances.
  3. I've heard the penalty is capped at the tax due, so if I paid all my tax by 31 January 2014, the penalty reduces to nil? No, that old rule no longer applies.

Splitting the tax year

By Susan Roller

The new statutory residence test, applying from 6 April 2013, contains provisions allowing the tax year to be spilt into 'overseas' and 'UK' parts. Specified items such as capital gains realised and foreign income received in the overseas part are not taxable in the UK.

Determining whether an individual coming to live in the UK qualifies for split year treatment is not for the faint hearted. In most cases, where the treatment is allowed, it is also necessary to look at conditions applying in the year before and after arrival. All the relevant split-year cases must be checked, as more than one may apply.

Consider an individual returning to live in the UK after working in Dubai for four years. Logic would suggest that the year would be split on the day they left Dubai. However, this will almost never be the relevant date.

In very broad terms the tests for 'arrivers' look at the day:

  • the overseas job finished (but not if they have been non-UK resident for the previous five tax years)
  • they ceased to have a 'home' overseas, but did have a 'home' in the UK
  • they started to have a 'home' in the UK
  • they started full-time work in the UK.

If an individual leaves their job and home in Dubai, returns to their UK home and starts work the next day, the year is likely to be split from the day they left their job in Dubai.

If the person went on holiday for a month after leaving Dubai, the date of leaving their Dubai job would still be the determining factor. However, if they spent six tax years working abroad, the date of leaving the Dubai job is ignored and other tests come into play. So, for example, if the last three months in Dubai were spent in a hotel and the client had a UK home, the year could be split from when they left their Dubai home for the hotel.

Why is this important? The expatriate may want to sell the assets acquired while overseas as they have very large gains. Without checking the split-year rules in detail, the gains may not be tax-free as hoped, even if sold before arriving in the UK.

For non-UK domiciled individuals, this year's Budget included a welcome change to correct an inadvertent error in the legislation, the effect of which was to wrongly charge gains arising in the overseas part of the year and remitted in the UK part of the year.

The split year is unlikely to apply at all to retired taxpayers if they already have homes in the UK and overseas when they come to live in the UK. However, if they first acquire a UK home in the tax year of arrival, the year will be split.

Given the prescriptive nature of the legislation, detailed professional advice should always be taken.

Entrepreneurs' relief – a focus on the shares

By Daniel Fowler

When claiming Entrepreneurs' Relief (ER) on the sale of securities or shares in a company, there are two 5% rules to bear in mind. The vendor must hold 5% of the ordinary shares and those shares must provide 5% of the voting rights.

Special attention must be paid where there are multiple classes of shares in a company. Just because a taxpayer owns 5% of the ordinary shares, this does not automatically give them 5% of the voting rights or, indeed, vice versa.

Ordinary shares for ER purposes are any shares in issue other than those that are only entitled to a dividend at a fixed rate and no other right to share in the profits. It is necessary to look beyond the label of a class of shares and assess what the shareholder is actually entitled to. Participating preference shares may qualify as ordinary shares under this definition.

Once a company meets the conditions and the taxpayer qualifies for ER, the disposal of any shares or securities in that company will be taxable with the benefit of ER, even if some of those shares are in themselves not a class of share or security that would entitle the taxpayer to claim ER.

DID YOU KNOW?

Cheltenham-based tax team joins Smith & Williamson

By Joss Dalrymple

Smith & Williamson has appointed a fourperson private client tax team in Cheltenham, led by Louise Somerset who joins as partner. The team specialises in advising high-networth individuals and has particular experience in working with internationally mobile families, including 'non-domiciles', assisting them with tax, trusts and international pension arrangements.

Joining Louise is associate director Krista Woodman, assistant tax manager Daniel Gadd and tax trainee Emma Robinson. The team joins from RBC's Wealth Planning Division, where Louise and Krista worked together for some eight years.

The team will operate from Festival House in Jessop Avenue in the heart of Cheltenham.

We have taken great care to ensure the accuracy of this newsletter. However, the newsletter is written in general terms and you are strongly recommended to seek specific advice before taking any action based on the information it contains. No responsibility can be taken for any loss arising from action taken or refrained from on the basis of this publication. © Smith & Williamson Holdings Limited 2014. code: NTD183 exp: 15/07/2014

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