UK: Weekly Tax Update - July 20, 2015

Last Updated: 28 July 2015
Article by Tina Riches

1 GENERAL NEWS

1.1 Summer Finance Bill 2015

The summer Finance Bill 2015 and explanatory notes have been published:

www.gov.uk/government/publications/summer-finance-bill-2015-legislation-and-explanatory-notes

www.publications.parliament.uk/pa/bills/cbill/2015-2016/0057/16057.pdf

1.2 Direct recovery of debts

A draft statutory instrument has been published concerning the implementation of the direct recovery of tax debts. It prescribes the information that must be provided by a deposit-taker to HMRC on receipt of an information notice or hold notice under the legislation that is due to become the second Finance Act 2015 Schedule 8. The prescribed information includes 'specified information' about persons with an interest in relevant accounts and 'account details' about relevant accounts.

It seems that neither the Bill nor the statutory instrument include the missing safeguards, such as face to face meetings between HMRC and the person. Whether this safeguard is to be watered down considerably and only included in guidance remains to be seen.

www.gov.uk/government/uploads/system/uploads/attachment_data/file/445204/Enforcement_by_Deduction_from_Accounts
_Regulations_2015.pdf

1.3 DOTAS

The Treasury has issued draft regulations to refine the DOTAS rules by tightening certain existing standardised tax products and losses hallmarks, to introduce a new financial products hallmark and to reform the way inheritance tax avoidance schemes are disclosed by extending the scope of the confidentiality and premium fee hallmarks to include inheritance tax.

  • The revised standardised tax product hallmark applies where:

    • A promoter makes the arrangements available for implementation by more than one person; and
    • An informed observer could reasonably conclude that:
    • the arrangements have standardised, or substantially standardised, documentation, determined by the promoter, enabling the user to implement the scheme and which is not tailored to any material extent to the user;
    • a person implementing the arrangements must enter into a specific transaction or series of specific transactions;
    • the transaction or series of transactions are standardised, or substantially standardised, in form; and
    • either the main purpose of the arrangements is to enable a person to obtain a tax advantage, or the arrangements would be unlikely to be entered into but for the expectation of obtaining of a tax advantage.
  • The new hallmark relating to financial products applies where:

    • The arrangements include at least one financial product. A financial product includes: a loan, share, derivative contract, certain types of repo, stock lending arrangements within the meaning of TCGA 1992 s.263B, an alternative finance arrangement, a contract, which in substance represents the making of a loan, or the advancing or depositing of money, and falls to be accounted for on that basis. Financial products within ISAs are excluded;
    • it would be reasonable to expect an informed observer to conclude that the main benefit, or one of the main benefits, of including a specified financial product in the arrangements, is to give rise to a tax advantage; and either
    • a specified financial product included in the arrangements contains at least one term which is unlikely to have been entered into by the persons concerned were it not for the tax advantage; or
    • the arrangements involve one or more contrived or abnormal steps without which the tax advantage could not be obtained.
    Arrangements are not prescribed financial products where:

    • a promoter is a participating entity, or is part of a participating group with in the Code of Practice on Taxation for Banks; and
    • HMRC has confirmed, or could reasonably be expected to confirm, to the promoter that the arrangements are acceptable transactions under that Code.
  • The current IHT tax avoidance scheme regulations are to be revoked and replaced by a new disclosure requirement for IHT, that would arise where:

    • the main purpose, or one of the main purposes, of the arrangements is that a person might reasonably be expected to obtain an advantage in relation to inheritance tax; and
    • either:
    • one or more elements of the arrangements would be unlikely to have been entered into but for the obtaining of the tax advantage; or
    • the arrangements involve one or more contrived or abnormal steps without which the tax advantage could not be obtained.
    Arrangements are excepted from disclosure where any of the following apply:

    • A person makes or amends his will or codicil.
    • A person makes a disposition of property that becomes comprised in a settlement consisting of or including rights under contracts of insurance with limited rights to the property for the person making the disposition;
    • A person makes a disposition of property which becomes comprised in a settlement, and there is an interest free, repayable on demand loan to the trustees.

www.gov.uk/government/uploads/system/uploads/attachment_data/file/445964/DOTAS_hallmark_draft_regulations__2_.pdf

www.gov.uk/government/uploads/system/uploads/attachment_data/file/445966/DOTAS_IHT_hallmark_draft_regulations_iht.pdf

1.4 Welsh Tax Collection and Management Bill

As a result of the Wales Act 2014, certain taxes will be devolved to Wales from April 2018. The purpose of the Tax Collection and Management (Wales) Bill ('the Bill') is to put in place the legal framework necessary for the collection and management of the proposed new devolved taxes when these are introduced from April 2018.

The Bill establishes a specialist tax authority, the Welsh Revenue Authority (WRA), and confers powers and responsibilities (and corresponding responsibilities and rights on taxpayers and others) so that it can collect and manage the proposed devolved Welsh taxes.

The Bill is the first of three anticipated bills that together will establish devolved tax arrangements in Wales. It will be followed by legislation for the new devolved Welsh taxes: Land Transaction Tax (LTT) and Landfill Disposals Tax (LDT).

The 2014 consultation on devolution of taxes to Wales did indicate the Welsh Government's view that 'tax avoidance is unacceptable and will not be tolerated' and that a Welsh GAAR (whether an anti-avoidance, or anti-abuse' rule) could be used. It is understood that the form this takes for LTT and LDT is currently being considered prior to the issue of draft legislation for these taxes.

www.gov.wales/legislation/programme/assemblybills/tax-collection-and-management/?lang=en

www.cynulliad.cymru/laid%20documents/pri-ld10293/pri-ld10293-e.pdf

1.5 New DOTAS forms for employers

Finance Act 2015 introduced a new requirement on employers to provide the DOTAS Scheme Reference Number (SRN), which they receive from the scheme promoter on form AAG6, to any employees involved in the avoidance to which that number applies. New form AAG7 has been designed for this purpose.

The existing form AAG6, which is used by promoters to notify clients of the SRN has been revised to make it clearer how the client must report the SRN and other information on their tax return (or, in specified circumstances, on form AAG4); and that failure to report the SRN correctly will render the person liable to a significant penalty.

www.gov.uk/government/publications/disclosure-of-tax-avoidance-schemes-dotas-draft-forms-aag6-and-aag7

1.6 Tough new criminal sanctions for offshore tax evaders

On 16 July, the Government announced a new regime to crack down on offshore evaders with the launch of four new consultations on tackling offshore tax evasion.

There are four connected consultations that all run to 8 October 2015:

  1. A new criminal offence for offshore evaders

    The consultation on the new criminal offence for offshore evaders contains responses to the earlier exercise in 2014. It also contains draft legislation. The earlier document saw the new offence as one of strict liability. The Government still wants to take this approach but feels it is proposing a model containing appropriate safeguards. It also, perhaps contradictorily, suggests the new proposals will provide 'a proportionate sanction focussed on those who try to cheat the system and avoid detection.'

    The taxes to which the new offence will apply, at least initially, will be income tax and capital gains tax, though this would be subject to review. There is to be a threshold amount of £5,000 before the new legislation applies.
  2. A new corporate criminal offence of failure to prevent the facilitation of evasion

    The second consultation, on a new corporate offence of facilitation of evasion, is designed to ensure that corporations, including other commercial organisations such as partnerships, should take 'reasonable steps to prevent its agents from facilitating tax evasion.' It is proposed at this stage to cover all taxes.
  3. Strengthening civil deterrents for offshore evaders

    The third consultation sets out six options including new levels and types of penalty and the naming of offshore evaders.
  4. Civil sanctions for enablers of offshore evasion

    The fourth consultation is aimed at enablers, being those doing any of the following: acting as middlemen, providing planning advice, delivering the infrastructure, giving financial assistance and non-reporting. There are some existing civil sanctions, but these are to be broadened.

www.gov.uk/government/news/offshore-tax-evaders-to-face-tough-new-criminal-sanctions

www.gov.uk/government/consultations/tackling-offshore-evasion

2 PRIVATE CLIENT

2.1 CGT exemption on shares qualifying for EIS relief

The First-tier Tribunal (FTT) has concluded that Robert Ames was not entitled to exemption from CGT on a gain of £272,540 made in June 2011 arising from the disposal of shares qualifying for EIS relief. This was because the exemption requires that a claim to EIS income tax relief be made. Mr Ames had no taxable income in 2004/05 tax year when he purchased the shares and so had made no claim.

There was no quantification of whether Mr Ames had taxable income in 2003/04, and whether he could have made a claim to treat the shares as issued in the year prior to their actual issue. From the Tribunal summary it appears as if Mr Ames had little income in 2003/04. His investment in the EIS company was £50,000 and would have qualified for CGT exemption on disposal if he had made an EIS income tax relief claim.

TCGA 1992 s.150A requires EIS relief to be attributable to the shares disposed. When originally enacted, the legislation required the relief to be obtained in full, but this requirement was subsequently removed and backdated to the introduction of the legislation. There was no scope for the legislation to permit a late claim, or for the application of Human Rights to Mr Ames' situation. An individual who had claimed £1 of EIS relief would have been entitled to CGT exemption, whereas an individual claiming no relief would not. There was no contract relevant here, so rectification as applied in the Lobler case [2015] UKUT 0152 (TCC), was not relevant.

The only routes open to Mr Ames were to apply for judicial review, or to rely on HMRC permitting a late claim under its care and management powers. It became apparent that HMRC had been unaware of Mr Ames' personal circumstances when it had refused a late claim under its care and management powers.

www.financeandtaxtribunals.gov.uk/judgmentfiles/j8501/TC04523.pdf

2.2 Simplifying gift aid and donor benefit rules

The Government has called for evidence on simplifying gift and donor benefit rules, with the aim of developing proposals to simplify and improve the rules.

Currently, the gift aid rules permit charities to reclaim tax at the basic rate on gift aid donations, and donors potentially to reclaim higher rate relief, together with a range of rules around the extent to which donors can receive benefits from charities, depending on the donation size, or whether it relates to heritage charity admission charges.

The call for evidence follows up on the Government's autumn 2014 statement of intention to review the gift aid and donor benefit rules with the aim of simplifying and improving them. Responses are requested by 9 October 2015, and will be used to inform a further consultation later this year, setting out options for change.

www.gov.uk/government/uploads/system/uploads/attachment_data/file/446089/Donor_Benefits_call_for_evidence_web_v4.pdf

2.3 Consultation on the deduction of income tax

A consultation has been issued on the deduction of income tax as a consequence of the introduction from April 2016 of a personal savings allowance (PSA). The consultation is open until 18 September 2015 and focuses on how to deal with the requirement to deduct tax on yearly interest; that is, interest other than from bank or building society accounts. Six options are discussed for dealing with this, with the aim of including the measure in Finance Bill 2016.

The PSA will apply a new 0% rate for up to £1000 of savings income received by a basic rate (20%) taxpayer, or up to £500 of savings income received by a higher rate (40%) taxpayer. The PSA will not apply to savings income received by 45% additional rate taxpayers.

The PSA will apply to 'savings income' as defined, which includes:

  • interest (this will include interest on peer-to-peer loans);
  • income from certain purchased life annuities;
  • profits from deeply discounted securities, accrued income profits; and
  • gains from certain life insurance contracts.

Types of income excluded from the PSA include:

  • dividends and other distributions from UK-resident and non-UK resident companies;
  • stock dividends;
  • loans to close company participators; and
  • certain transactions in deposit rights.

Royalties and annual payments are not savings income and will not therefore come within the scope of the PSA. The government is consulting with a view to introducing an exemption from deduction in respect of private placements, which are a particular form of unlisted debt.

Banks and building societies currently deduct tax from interest they pay on deposits of individuals, partnerships and trusts under an arrangement known as the Tax Deduction Scheme for Interest (TDSI). This deduction arrangement will cease, so that from 6 April 2016 such interest will be paid without deduction of tax.

Six options are considered for dealing with the obligation to deduct tax from non-TDSI income as follows:

  • retain the current rules for deduction of tax from non-TDSI interest;
  • remove the obligation to deduct income tax from all non-TDSI interest;
  • remove the obligation to deduct income tax from non-TDSI interest paid to individuals only;
  • remove the obligation to deduct income tax from non-TDSI interest below a specified amount;
  • allow individuals to elect to receive interest with or without deduction of tax;
  • modify the obligation to deduct income tax from non-TDSI income, as part of wider changes to deduction of tax obligations in Part 15 ITA 2007. If this option was considered the most appropriate, then it is likely further consultation would take place.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/444945/Deduction_of_income_tax_from_savings
_income_-_implementation_of_the_Personal_Savings_Allowance.pdf

3 TRUST, ESTATES AND IHT

3.1 Government consultation on Deeds of Variation (DoV)

Following its announcement in Budget 2015, amidst some inter-party political joshing, the government has launched a consultation looking at the use of DoVs for tax purposes that will run until 12 October.

As the consultation points out, a DoV can be used for a number of purposes, including clarifying wills, taking account of the differing financial positions of beneficiaries, correcting injustices in the will where beneficiaries are left out and in the case of intestacies, making sure the estate is directed as the deceased would have wished rather than simply under the statutory inheritance rules where the deceased dies without a valid will.

It is possible by election to treat the DoV as effectively rewriting the will for tax purposes so that for inheritance tax it is as if the variation was the provision actually made by the deceased at death. There is a broadly similar provision for CGT.

The opportunity to re-write the will effectively gives rise to an opportunity to plan for tax after death, an opportunity that may be reviewed by tax professionals at the appropriate time. The government is interested in seeing how DoVs are used in a tax context to assess whether the provisions are abused and whether they need reform.

www.gov.uk/government/consultations/review-of-deeds-of-variation-for-tax-purposes-call-for-evidence

4 PAYE AND EMPLOYMENT

4.1 The Office of Tax Simplification (OTS) employment status report responses

The OTS has published a short summary of responses to its report in March 2015 on Employment Status.

The OTS sought responses on the question of office holders and whether this separate status gave rise to any problems. It does. Responses included issues for partners who are turnaround specialists appointed as office holders in their clients, issues for independent Local Authority appointments and for voluntary workers appointed to unpaid offices.

The OTS concluded from the response it received that there are indeed problems and further work is necessary on the routes to improve the position.

www.gov.uk/government/publications/employment-status-review

4.2 HMRC launches IR35 discussion document

HMRC has published a discussion document on the intermediaries legislation, (ITEPA 2003 Part 2 chapter 8), known as IR35.

This discussion document was trailed in Budget 2015 and comments are due by 30 September 2015. If the government decides to proceed with reform, any proposals will undergo a later full consultation.

The tax system offers different levels of tax for workers depending on whether they are employee, self-employed, or work through their own limited company. The IR 35 legislation was introduced in 2000 to tackle tax avoidance by those who work through intermediaries, primarily, their own personal service company (PSC).

The government believes the legislation is not working effectively and that non- compliance is widespread. Interestingly, in 2012-13 there was an increase of 65,000 PSCs but the number paying tax under IR 35 has stayed pretty static. At the same time, it is recognised that there are many individuals who properly need to operate within the structure commercially and it is not the intention to put an end to the practice. Equally, IR35 itself will not be abolished.

There are various options for reform of what is seen as a complex problem. Approaches could include administrative changes of the operation of the legislation or a change to compliance, essentially requiring the engager of the services to take on the burden of supervising the tax position. There is currently no consensus.

www.gov.uk/government/consultations/intermediaries-legislation-ir35-discussion-document

5 BUSINESS TAX

5.1 Environmentally beneficial plant or machinery

SI 2015/1508 amends the definitions of the 'Energy Technology Criteria List' and the 'Energy Technology Product List' to refer to the new lists, which are available on the Department of Energy and Climate Change's website at:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/442320/ETL_Product_List_June_2015_-_signed.pdf .

SI 2015/1509 amends the definitions of the 'Water Technology Criteria List' and the 'Water Technology Product List' to refer to the new lists, which are available at:

www.gov.uk/government/publications/water-efficient-enhanced-capital-allowances .

www.legislation.gov.uk/uksi/2015/1508/pdfs/uksi_20151508_en.pdf

www.legislation.gov.uk/uksi/2015/1509/pdfs/uksi_20151509_en.pdf

5.2 Deduction of tax from interest on peer-to-peer lending

A consultation has been issued on introducing a requirement to deduct tax from interest on peer-to-peer (P2P) lending from April 2017. It is open until 18 September 2015. The existing rules concerning the obligation to deduct tax on interest payable are complex for borrowers, lenders and fund platforms to deal with. The consultation proposes placing the obligation to deduct on the fund platform, with the assessment of the obligation to deduct depending on the status of the lender only.

Where the term of the loan means there is an obligation to deduct tax from interest, for example, where the interest on the loan is yearly interest, the rules for deduction of tax from interest are complex because:

  • if the borrower is a company, it (or the fund platform) will need to deduct tax from interest payable to individual lenders, but not UK company lenders;
  • if the borrower is an individual, he (or the platform) has no obligation to deduct tax on interest paid to UK resident lenders, whatever the type of lender;
  • if the lender is not resident in the UK, there is an obligation on all types of borrower (or the platform) to deduct tax from interest, whatever the type of lender;
  • a lender with a portfolio of P2P loans may well receive interest from multiple borrowers, some of whom will have deducted tax from those payments and some of whom will not.

The consultation proposes that P2P borrowers pay interest gross, and the P2P platform (or an intermediary) deals with the obligation to deduct tax from interest payments. It also proposes that the obligation to deduct tax should depend on the status of the lender. It considers applying the obligation, regardless of whether the interest is yearly interest or not. Where the obligation to deduct tax on interest falls on the platform (or possibly an intermediary), the possibility of annual, rather than quarterly, reporting of tax deducted is discussed.

www.gov.uk/government/uploads/system/uploads/attachment_data/file/444951/Deduction_of_income_tax_from_interest_-_peer-to-peer_lending.pdf

5.3 Review of reliefs

HMRC commissioned a series of reviews, the results of which have been published, ranging from:

  • the behavioural effects of certain reliefs and disclosure facilities;
  • the tax agent market and the use of tax agents by small and medium sized businesses;
  • introducing risk triggers in to third party software;
  • the administrative burden on business of complying with tax obligations;
  • charitable giving and use of gift aid by those earning more than £100,000; and
  • the influence of using offshore disclosure facilities.

A summary of some points raised and links to some of the reports are noted below. On entrepreneurs' relief and business asset taper relief, the research concluded that for many claimants the availability of the reliefs did not influence their decision to undertake the business transaction. There were some for whom it was influential, but no evidence the reliefs formed part of a long term tax planning strategy.

Some research has been undertaken on the awareness and use of tax simplification measures for small businesses. Although the report presents the findings, no conclusions or recommendations are given.

Included in the conclusions on the influence of offshore disclosure facilities were the following:

  • tax agents perceived that clients who used the Liechtenstein disclosure facility (LDF) did not see themselves as having done anything wrong and sensitivity is required to ensure these individuals self-identify as non-compliant;
  • HMRC's efforts need to be targeted not at 'disclosure' – but at encouraging people to 'review their affairs' (eg via an agent);
  • intentional evaders may continue to procrastinate where they believe that other facilities will come along or HMRC do not have the resources to target evaders – even after international information exchange;
  • agents play a critical role in helping confirm non-compliance, and helping clients appreciate the risk of not being up to date on tax.

www.gov.uk/government/uploads/system/uploads/attachment_data/file/444995/Research_report_367_Capital_Gains_Tax_Relief__
Research_on_Entrepreneurs__Relief_and_Business_Asset_Rollover_Relief.pdf

www.gov.uk/government/uploads/system/uploads/attachment_data/file/444770/HMRC_ResearchReport377-small-business-and-choice.pdf

www.gov.uk/government/uploads/system/uploads/attachment_data/file/443746/HMRC_Report_375_Tax_Administration.pdf

www.gov.uk/government/uploads/system/uploads/attachment_data/file/442559/Charitable_giving_and_Gift_Aid_behaviour_amongst_better-off_individuals.pdf

5.4 Landfill tax and legitimate expectation

The Court of Appeal has determined that Veolia ES Landfill Limited and others were permitted to pursue judicial review proceedings concerning expectations of repayment of overpaid landfill tax, in addition to taking the technical aspects of the claim before the First-tier Tribunal (FTT).

Landfill tax is payable on waste material used in filling landfill sites, but only if the waste material is 'discarded'. In July 2008, the Court of Appeal ruled in a case concerning Waste Recycling Group Ltd ([2008] EWCA Civ 849) that where material received on a landfill site is put to a use on the site, for example, for the daily coverage of sites required under environmental regulation, and construction of on-site haul roads, it is not taxable, as there is not, at the relevant time, a disposal with the intention of discarding the material.

Revenue & Customs Brief 58/08 was issued in December 2008 inviting claims for repayment of tax in accordance with this view, and listing examples where landfill tax should not be due.

Further Revenue & Customs Briefs were published in May and June 2012, clarifying the circumstances in which HMRC would consider claims for repayment of tax. In both briefs, it was confirmed that material referred to by some as the 'reverse or top fluff layer' constituted careful placement of soft waste which is, and always has been, liable to landfill tax.

Veolia submitted reclaims in February 2010 and HMRC eventually agreed in February 2013 Veolia had overpaid landfill tax in periods up to October 2009 as it had incorrectly declared landfill tax on material placed against the base and sidewall drainage layer or liner of the disposal area to prevent damage to that layer or liner. HMRC stated that it was in a position to agree the quantum of the claim. It then went on to discuss the applicable time periods, unjust enrichment and interest.

As a result of further information, however, HMRC issued a Brief in 2014 discussing claims in respect of 'fluff.' It commented:

  • the WRG case did not provide a precedent that waste 'used' within a landfill site is not taxable;
  • found no evidence to suggest that the fluff layers fulfil any engineering purpose or are a regulatory requirement;
  • there is no difference between the various types of fluff in physical composition. They are all simply carefully placed and well managed waste;
  • in relation to side and base fluff claims, while it would not seek to recover claims already paid out, it would not make any further claim payments.

Based on this 2014 Brief, HMRC rejected the claims of Veolia whose quantum they had previously accepted. A FTT hearing involving the Veolia claim is pending, and Veolia had submitted judicial review proceedings based on their legitimate expectation arising out of negotiations for repayments of overpaid landfill tax.

HMRC had contended the judicial review proceedings should be stayed, pending the outcome of the FTT decision, on the basis there would be a need to consider new facts in both the FTT and judicial review cases. However the Court of Appeal has confirmed the earlier High Court decision not to stay these proceedings.

www.bailii.org/ew/cases/EWCA/Civ/2015/747.html

5.5 Tax treatment of regulatory capital

A consultation and draft regulations have been issued concerning the intention to treat insurers' Solvency II instruments issued in the form of debt, but recorded in equity, as debt instruments for tax purposes.

This treatment will be subject to the outcome of the Organisation for Economic Co- operation and Developments Base Erosion and Profit Shifting project and may impose restrictions on the tax deductibility of the debt.

Comments on the draft regulations are requested and there is a meeting at 100 Parliament Street, London from 10.30am to 12.30pm on 6 August 2015 for those who wish to discuss the regulations in open forum.

www.gov.uk/government/uploads/system/uploads/attachment_data/file/445804/Draft_Regulatory_Capital_Securities_
Amendment_Regs_2015.pdf

www.gov.uk/government/uploads/system/uploads/attachment_data/file/445805/Draft_Explanatory_Memorandum_RCS_Regulations.pdf

www.gov.uk/government/consultations/the-taxation-of-regulatory-capital-securities-amendment-regulations-2015

5.6 Reform for residential lettings: replacement furnishings costs

The Government has issued a consultation on replacing the furnished lettings wear and tear allowance (10% of rent receipts) with a relief based on costs actually incurred on replacement of furnishings for all residential landlords. Responses are requested by 9 October 2015.

As announced in the summer 2015 Budget, proposals for replacing wear & tear allowances with a relief for actual replacement costs will apply from 6 April 2016 for income tax purposes and 1 April 2016 for corporation tax purposes. As currently, there would be no deduction for the original cost of the furnishings, but replacements of like for like would be deductible according to the type of expenditure incurred. The new relief will apply to all landlords of residential dwelling houses, no matter what the level of furnishing.

The proposed qualifying items would be:

  • movable furniture or furnishings, such as beds or suites;
  • televisions;
  • fridges and freezers;
  • carpets and floor-coverings;
  • curtains;
  • linen;
  • crockery or cutlery;
  • other furniture.

Fixtures integral to the building that are not normally removed by the owner if the property was sold would not be included, because the replacement cost of these would, as now, be a deductible expense as a repair to the property itself. Fixtures include items such as:

  • baths;
  • washbasins;
  • toilets;
  • boilers;
  • fitted kitchen units.

Any element of the replacement asset that represents an improvement would be excluded from the new replacement furniture relief.

www.gov.uk/government/uploads/system/uploads/attachment_data/file/445784/Replacing_Wear_and_Tear_Allowance_with_Tax_Relief_
for_Replacing_Furnishings_in_Let_Residential_Dwelling-Houses.pdf

6 VAT

6.1 Charity sector, direct marketing and printed matter

In Tax Update of 15 June we highlighted HMRC's update of VAT notice 700/24 which included further illustrative examples clarifying the distinction between a direct marketing supply (a standard rated supply) and the supply of delivered goods (for example zero rated printed matter). We also highlighted the transitional arrangements agreed between HMRC and the charity sector that end on 31 July 2015. HMRC has issued a new brief giving further details of how these transitional arrangements will be dealt with. It includes the note shown below indicating charities wishing to use the transitional arrangements need to notify HMRC by 30 November 2015 of that fact.

www.gov.uk/government/publications/revenue-and-customs-brief-10-2015-vat-direct-marketing-services-using-printed-matter/revenue-and-customs-brief-10-2015-vat-direct-marketing-services-using-printed-matter

6.2 Input VAT recovery on costs incurred on acquisitions

The CJEU has published its eagerly awaited decision in Larentia and Minerva (case C- 108/14 and C-109/14). The decision clarifies a number of points on input VAT recovery on corporate finance costs and VAT grouping which may require some changes to UK policy and possibly legislation. In summary, the decision concludes that input VAT on share acquisition costs forms part of the general costs, with a right to recovery depending on the VAT status of the taxable person's economic outputs, subject to there being an economic activity. The Court also concluded that EU legislation on VAT grouping should not in principle restrict VAT groups to bodies corporate.

Input tax recovery

The Court concluded that, provided a holding company was carrying on an economic activity, its share acquisition costs form part of its general expenditure, entitling it to input VAT recovery on those costs in line with the VAT status of its supplies. However, it was for the national courts to determine the appropriate method for computing the proportion of input VAT recoverable. The Court reconfirmed that the passive acquisition and holding of shares on its own is not an economic activity for VAT purposes.

In September 2014, HMRC issued new guidance at VIT40600 stating that holding companies were only entitled to input VAT recovery where they were carrying on economic activities. This is confirmed by the Larentia Minerva decision. The guidance then goes on to say that such input VAT is only recoverable "provided the costs have a direct and immediate link to one or more taxable supplies." This is directly contradicted by the Lartentia Minerva decision para 24 stating that input VAT recovery is possible in such circumstances, provided the costs form part of the taxable person's general costs.

By referring to 'taxable person' rather than 'holding company' the Larentia Minerva decision seems to have clarified that where a holding company is part of a VAT group, such that its intragroup services would be ignored for VAT purposes. It is the 'VAT group single taxable person' that one considers, rather than looking at the holding company in isolation.

Eligibility for VAT grouping

The Court also concluded that, where a Member State permits VAT grouping of single taxable persons who are closely bound by financial, economic and organisational links, it is precluded from restricting that facility to entities with legal personality, unless that restriction can be justified in preventing abusive behaviours, tax evasion or tax avoidance. Because what is now VAT directive article 11 permits Member States some flexibility in applying that facility, however, it was not possible for a taxpayer to rely on the direct effect of that provision where their Member State's legislation restricts VAT grouping to persons with legal personality.

UK VAT legislation at VATA 1994 s.43A-s.43D restricts VAT grouping to 'bodies corporate'. We shall need to see how HMRC responds to the decision, but we expect the UK to consider widening the rules to permit partnerships and other non-corporate bodies to be VAT group members.

http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&text=&pageIndex= 0&
part=1&mode=req&docid=165920&occ=first&dir=&cid=356099

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 2015

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Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

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.