1. General news
1.1. The Queen's speech
Included within the Queen's speech setting out the forthcoming legislative agenda were the following:
- An enterprise and regulatory reform bill that, amongst other things will: improve the effectiveness and efficiency of competition enforcement and the competitiveness of markets for the benefit of consumers; provide new powers for a green investment bank; overhaul of the employment tribunal system and transformation of the dispute resolution landscape; strengthen the framework for setting directors' pay (repealing section 439(5) of the Companies Act 2006 making it possible for directors' remuneration to be contingent on the outcome of the shareholder vote on the directors' remuneration report).
- A small donations bill that will provide a top-up payment similar to Gift Aid to charities that receive small cash donations of £20 or less, enabling them to claim 25p for every £1 collected in the UK, on up to £5,000 of small donations.
- A pensions bill that:
- Replaces the current, complex state pension system with a new single tier pension, as set out in the Budget, set above the level of the basic pension credit means test (currently estimated to be set at around £140 per week), so that those of working age can save for their retirement with confidence.
- Brings forward the increase in the state pension age to 67 between 2026 and 2028.
- Commits to ensuring that the state pension age is increased in future to take into account increases in longevity.
2. Private Clients
2.1. Business investment relief for non-domiciled investors
HMRC has confirmed that business investment relief will be available to non-domiciled investors even if the investment is in a close company.
"On a separate matter, various people have queried whether the investment relief would be available where the investment is in a close company – on the grounds that the company could be a relevant person under section 809M ITA 2007 and hence a taxable remittance could occur when the company makes use of the invested funds.
I should clarify that there is no cause for concern on this point. The way in which the business investment legislation is drafted means that, once a qualifying investment is made, the foreign income and gains are to be treated as not remitted to the UK by virtue of new section 809VA(2). Those income and gains will only subsequently become taxable in the UK where a potentially chargeable event occurs and the investor fails to take the appropriate mitigation steps within the grace period. This means that, where a qualifying investment has been made in a close company, the use of the invested funds by that company will not trigger section 809L and therefore no remittance will occur."
3. PAYE and Employment matters
3.1. Pensions: amendment of SI2006/206, affecting QROPS
The QROPS (Qualifying Recognised Overseas Pension Schemes) regime allows an individual to transfer their pension savings in a UK registered pension scheme free of UK tax (subject to the lifetime allowance, which is currently £1.5 million) to a pension scheme that meets the conditions to be a QROPS. A QROPS is a pension scheme established overseas that meets the conditions set out in legislation which ensure that it is broadly similar to a UK registered pension scheme.
New QROPS rules took effect from 6 April 2012 and changed the conditions that a pension scheme has to meet to be a QROPS. A new pension system was introduced in Guernsey to ensure that pension schemes established there could continue to meet the conditions to be a QROPS in the same way as they had before 6 April. The effect was that the scheme sidestepped the new condition intended to ensure that there is no special tax provision for non-residents under a QROPS.
SI 2012/1221 deals with a previously unannounced change to ensure that the QROPS rules meet their policy objective, and amends SI2006/206 (Pension Schemes (Categories of Country and Requirements for Overseas Pension Schemes and Recognised Overseas Pension Schemes)), coming into force on 25 May 2012. It amends regulation 3 of SI2006/206 so as to provide that schemes established in Guernsey which are exempt pension contracts or exempt pension trusts under section 157E of the Income Tax (Guernsey) Law, 1975 cannot be recognised overseas pension schemes if they are open to non-residents of Guernsey.
3.2. IR35: HMRC guidance giving business entity tests and examples
HMRC has issued guidance on their risk based approach to checking compliance with IR35 legislation. It represents a pilot of business entity tests (to help taxpayers determine whether they are low, medium or high risk with respect to IR35) and examples, that will be updated according to feedback and business changes.
These tests were devised by the IR35 Forum set up as part of the Office of Tax Simplification's small business review.
There are twelve business tests with a score against them if the answer to the test is yes (the higher the score the lower the risk):
- Business premises (10). Does the business own or rent business premises which are separate both from your home and from the end client's premises?
- Professional Indemnity Insurance (2). Does the business need professional indemnity insurance?
- Efficiency (10). Has the business had the opportunity in the last 24 months to increase business income by working more efficiently?
- Assistance (35). Does the business engage any workers who bring in at least 25% of the yearly turnover?
- Advertising (2). Has the business spent over £1,200 on advertising in the last 12 months?
- Previous PAYE (Minus 15). Has the current end client engaged the worker on PAYE employment terms within the 12 months which ended on the last 31 March with no major changes to the working arrangements?
- Business plan (1). Does the business have a business plan with a cash flow forecast which is updated regularly? Does the business have a business bank account, identified as such by the bank, which is separate from the personal account?
- Repair at own expense (4). Would the business have to bear the cost of having to put right any mistakes?
- Client risk (10). Has your business been unable to recover payment for work done in the last 24 months (more than 10% of yearly turnover)?
- Billing (2). Does the business invoice for work carried out before being paid and negotiate payment terms?
- Right of substitution (2). Does the business have the right to send a substitute?
- Actual substitution (20). Has there been an example of actual substitution?
A score of less than 10 is high risk, while a score of more than 20 is low risk.
The guidance indicates that a small business will be able to obtain an independent ruling on its status:
"As a small business, you need to have certainty about IR35. You need to know whether IR35 applies to you.
If you would like advice, you can phone our confidential IR35 helpline on 0845 303 3535.
As well as answering one-off queries, the IR35 helpline provides a review service.
The helpline and review service are staffed by HMRC specialists in IR35. Both are independent of our compliance teams – if you ask them about IR35, they will not pass on what you tell them to other people in HMRC.
The specialists can review a contract for you if you want certainty about your position. If you decide to use the contract review service, and we conclude that your contract is outside IR35, we will give you a certificate with a unique number. This certificate will be valid for three years.
If, later on, we open an IR35 review, you can give us this number. We will then suspend our IR35 review while we consider all the information. We will close our IR35 review if:
- the contract we reviewed is typical of your engagement terms and conditions;
- the information provided is accurate.
You can find out more about the review service (including its full contact details) on our website."
3.3. Employment related shares and securities bulletin May 2012
This bulletin covers:
1) Notification requirements of trustees of approved Share Incentive Plans (SIP).
2) SIP – cessation of "association" of companies on a demerger.
3) SIP – meaning of "the same provision" in pre-emption conditions.
4) Changes to share schemes approvals process.
5) Budget 2012 and Consultations.
6) Share Scheme Statistics – User Survey.
3.4. Employment tax for seafarers
The High Court has considered claims by two individuals (joined by their trade union) that HMRC's denial of the seafarer's earnings deduction (SED) was unlawful. Ian Cameron was denied SED on earnings of £72,936 for the year ended 5 April 2006, while Alon Palmer was denied SED for the tax years 2001/02 – 2006/07 inclusive. They each argued that at the time they made their claims to the deduction they held a legitimate expectation that HMRC would uphold them.
Section 378(1) of the Income Tax (Earnings & Pensions) Act 2003 made it clear that SED was allowed only if three criteria were met. One of those criteria was that the person making the claim performed duties as a seafarer 'in the course of an eligible period'. Section 378(2) explained what was meant by the phrase 'eligible period'. An eligible period was calculated by reference to 'days of absence from the United Kingdom'. A person was absent from the United Kingdom only if s 378(4) was satisfied. Under that subsection, a person was regarded as being absent from the UK on any day only if he was absent 'at the end of the day.'
In order to determine the meaning of 'at the end of the day', the Revenue had published form S203(New) in 1987. That was followed by form P84 and then in 1993 by 'the Blue Book'. It was stated was that a voyage which did not extend a foreign port might still count towards a day of absence (the broad concession).
The broad concession with reference to when there was a day of absence from the UK was:
"A day of absence from the UK is any day when you are outside the UK at the end of that day (midnight). We normally treat a vessel as having left the UK at the moment it leaves berth or anchorage, on a voyage which will take it outside UK territorial waters. Arrival times are treated in a similar way."
The overarching issue in each case was whether, as regards each year of assessment, the individual claimants held a legitimate expectation that they would be taxed in accordance with "the broad concession".
Provided the terms of the legislation (as interpreted) were met, there would be a 100% deduction for the "foreign earnings".
HMRC maintained that an agreement had been reached whereby a day of absence from the UK would be interpreted to the effect that a seafarer would be treated as being absent from the United Kingdom during the day in which the vessel upon which he was serving cast off from a UK berth even if that was before midnight provided that the departure was allied to passage to a foreign port. This was known as the 'middle concession'.
The last version of the blue book was published in 1996. HMRC maintained that it had been superseded by updated forms and that it had informed the seafaring community of a revised explanation of the rules through articles in seafaring publications and by informing all known agents acting for seafarers.
The High Court determined that this level of communication was insufficient to reach all those potentially affected, and that there was no clear communication that the blue book was not effective guidance. The Court therefore concluded that the two claimants had a legitimate expectation that their tax affairs should be treated in accordance with the blue book (broad interpretation), despite Mr Palmer being on notice in 2004 that the blue book guidance was incorrect.
The current legislation is contained in ITEPA s378 - s385.
4. Business tax
4.1. Whether a single property constitutes a business
Finance Bill schedule 12 (remittance for investment purposes) provides that a qualifying investment must meet condition A, the investment must ultimately be in an eligible company carrying on a commercial trade, and condition B, that no relevant person has (directly or indirectly) obtained a benefit (as defined).
A trade for the purpose of condition A includes:
a) anything treated for corporation tax purposes as if it were a trade; and
b) a business carried on for generating income from land.
The explanatory notes to the definition of a trade including generating income from land include the following:
Subsection (2) of [ITA] section 809VE provides that for the purposes of section 809VD 'trade' includes any activity that is treated as a trade for corporation tax purposes and a business of generating income from land. The meaning of 'generating income from land' is provided by section 207 of Corporation Tax Act 2009 and includes generating income from both residential and commercial property.
CIOT clarified with HMRC in May 2008 that a letting of a single property could amount to carrying on a business with a view to profit. The HMRC response was:
You wrote to my colleague Peter Lees on 22 May asking whether an LLP would be regarded as carrying on a business with a view to profit (for the purposes of s118ZA ICTA 1988) if its only activity is owning and letting an office building on a commercial basis to a single tenant on a long-term tenants repairing lease.
Whether the activities carried on by a particular LLP amount to the carrying on of a business is a question of fact, but I think it would only be in exceptional circumstances that letting a building on a commercial basis would not amount to a business.
The approach taken by the Courts has been to consider whether the activities are carried on in the same manner as a commercial landlord would do. If so, then that is likely to elevate the activities into being a business rather than a mere investment. This was certainly the approach taken by the Special Commissioner in Martin v CIR, SpC2/1995 (an inheritance tax case) where he said:
"The mere receipt of rents from let property owned by an individual raises no presumption that he is carrying on a business – Lord Diplock in American Leaf Blending Co v Director General. But Mrs Moore conducted a continuing activity on what seem to have been sound commercial principles and in a manner characteristic of commercial landlords of like properties. Those features I think elevate her activities from mere ownership or mere investment into a business."
Also, as you point out, the definition of a property investment LLP in s842B(i)(b) ICTA 1988 (although not relevant for the purposes of s118ZA) contemplates that the making of investments in land, from which income is derived, is a business.
However this clarification only relates to a single office (commercial) property. In January 2012 CIOT discussed the draft 'business investment relief proposals' and at the time HMRC indicated it was not the intention that renting out a residential property would meet the definition of a commercial trade for the business, in contrast to the legislative text. However no changes to the legislation were made when published on 29 March 2012 and the explanatory notes to the legislation clearly indicate that investment in residential property is acceptable as shown above. Clarification is being sought on whether there will be any further changes and how HMRC will interpret this.
4.2. UK Barbados Tax Treaty
A new Double Taxation Agreement between the UK and Barbados was signed in Barbados on 26 April 2012. It replaces the 1970 version and enters into force once both countries have completed their legislative procedures.
4.3. French withholding tax suffered by non-French resident investment funds
The CJEU has ruled that the French tax system which levies a withholding tax on dividends from French companies paid to collective investment funds (UCITS) that are not French resident (whether tax resident in France or not), while not levying withholding tax on such dividends paid to French resident UCITS constitutes a restriction on the free movement of capital.
The questions considered included whether it was necessary to take into account the position of the shareholders (whether holding shares directly or through UCITs) in addition to considering the position of the UCIT, and if so, in what circumstances the levying of withholding tax could be considered consistent with the principle of free movement of capital.
The Court considered that the French tax system with respect to the withholding tax was only based on the residency of the UCIT and made no distinction based on the tax position of the shareholder. Therefore taking into account the tax position of the shareholder was irrelevant in considering whether this was a restriction on the freedom of movement of capital. It further concluded there were no public interest issues which overrode this conclusion to endorse the levying of the withholding tax. Thus the Court concluded that France was precluded from levying withholding tax on non-resident UCITS in the manner set it out in its legislation.
The case involved joined cases C-338/11 to C-347/11, and may well be of interest to UK investment and pension funds with investments in French companies.
5.1. VAT and retail schemes
VAT notice 727 (Retail schemes) has been updated to provide further guidance to those businesses that are required to carry out the retail chemist adjustment.
5.2. VAT and Face value Vouchers
On 10 May 2012 the Government announced a change in legislation to protect public finances and prevent tax avoidance. This follows a decision of the Court Justice of the EU which affects the way in which the UK treats certain face value vouchers for VAT. It is the Government's intention to introduce legislation as part of the Finance Bill 2012 that will have effect for vouchers issued on or after 10 May 2012.
The notes below are extracted from HMRC's Brief.
Lebara Limited operated a telecommunications business by which international telephone calls were made available to customers in other member states through the use of face value vouchers. Lebara sold the vouchers to distributors in other member states who then sold them on to other distributors or direct to the end customers. The case before the CJEU concerned the proper analysis of the supplies involved and how such services provided via vouchers should be taxed.
The Court found that, in circumstances such as these, there was a supply of services from Lebara to the distributors, but there was no supply by Lebara on redemption to the end customer. As a consequence, the UK legislation in Schedule 10A, VAT Act 1994 for certain types of voucher is incompatible with EU law.
Although this case was concerned with the supply of telecommunications services via the use of a voucher, the principles considered by the Court are of general application and will apply to other single purpose vouchers that can be used to obtain only one type of good or service. However, it is HMRC's understanding that the majority of vouchers are unaffected.
Consequences of the judgment in outline
As a consequence of the judgment, it has been necessary to amend the VAT treatment of certain types of face value vouchers. This has been in order to safeguard significant revenue and to prevent artificial VAT avoidance. Given the scale of this risk it has been necessary to implement these changes with immediate effect. However, businesses issuing and redeeming the affected types of vouchers will not be required to account for VAT under the new rules until the Finance Bill receives Royal Assent. They will then need to make an adjustment to cover the intervening period. Alternatively, businesses may opt to implement the changes straight away to avoid the need for an adjustment.
Existing treatment for face value vouchers
The current rules for the treatment of face value vouchers are given in Schedule 10A to the VAT Act 1994. A face value voucher is any voucher, token or stamp that carries the right to receive goods or services to a value shown on it or contained within it. A face value voucher may be physical or electronic.
Under the existing rules there are two main types of face value vouchers: retailer vouchers and credit vouchers.
- A retailer voucher is a voucher issued by the same person who will redeem it. This includes, for example, gift tokens sold by a retailer for use in its own shops.
- A credit voucher is any type of face value voucher that is issued by one person but which can be exchanged for goods and services from another person. This includes, for example, gift tokens sold by one company that can be exchanged for goods or services in a variety of high street shops.
All the consideration for all supplies of credit vouchers is currently disregarded with VAT being brought to account by the redeemer when the vouchers are exchanged for goods or services. With retailer vouchers the initial consideration on issue is disregarded but the vouchers are then taxed for subsequent supplies. Again the issuer is required to account for VAT on the supply when the voucher is redeemed.
As a result of the changes announced today, single purpose face value vouchers will be taxed when they are issued. This will affect all single purpose vouchers, whether credit, retailer or other types of voucher.
A single purpose face value voucher is one that carries the right to receive only one type of goods or services which are all subject to a single rate of VAT.
For example, where a prepaid telephone card can only be redeemed for telecommunication services it will be a single purpose voucher. Similarly a voucher that can be redeemed only for electronically supplied services will be a single purpose voucher even if the electronic service can have slightly different forms (e.g. streamed movies, music or games).
A book token that can be redeemed for zero rated books or standard rated e-books, will not be a single purpose voucher as it can be redeemed for more than one type of supply and they have different rates.
The new treatment of single purpose vouchers
As the announced changes remove single purpose vouchers from Schedule 10A, the special rules for face value vouchers will no longer apply.
Instead where a single purpose voucher is sold both initially and by retailers or distributors, it is treated as a supply of the goods or services for which it can be redeemed. This will apply whether the voucher is issued by the person from whom it can be redeemed or by a third party.
For example a telecommunications company produces vouchers that entitle the holder to £10 worth of telephone calls. It sells a voucher to a distributor for £8 and accounts for VAT on the £8. The distributor recovers the input tax and sells the voucher to a retailer for £9 and accounts for VAT on £9. The retailer recovers the input tax and sells the voucher to the final consumer for £10 and accounts for output tax on £10.
The brief contains examples setting out how HMRC sees the new rules applying.
5.3. EU proposals for the VAT treatment of vouchers
Neither the Sixth VAT Directive (77/388/EEC) nor the VAT Directive (2006/112/EC) provide for rules on the treatment of transactions involving vouchers. Using a voucher in a taxable transaction can have consequences for the taxable amount, the time of a transaction and even in certain circumstances, the place of taxation. Uncertainty about the correct tax treatment can however be problematic for cross-border transactions and for chain transactions in the commercial distribution of vouchers.
As a consequence the EU is proposing to introduce new rules concerning vouchers (proposals issued on 10 May 2012). Their proposals are:
- To clearly define a voucher for VAT purposes. This involves a new Article 30a. The VAT Directive needs to be clear about which vouchers are to be taxed when issued and which are to be taxed only when redeemed. The former are described as 'single-purpose vouchers' and the latter as 'multi-purpose vouchers'. This distinction hinges on whether the information is available to tax on issue or whether, because their end-use is subject to choice, taxation has to await redemption. It is also necessary to ensure that instruments which can currently be used in settlement in multiple unconnected outlets and which are today not generally treated as vouchers should continue to be treated in the same manner.
- To ensure the timing of taxation is clear. The current rules on the time of chargeability of the tax (in Article 65) should be adjusted to ensure that single-purpose vouchers (SPVs) are subject to VAT at the time they are issued and paid for. To avoid confusion, the supply of the right which is inherent in a voucher and the underlying supply of goods or services cannot be regarded as separate transactions. SPVs are taxed from the outset so this potential problem will not arise. For vouchers which are not taxed when issued because the place and level of taxation cannot yet be established, tax should only be charged when the underlying goods or services are supplied. To make sure this happens, and that only this happens, a new Article 30b is proposed. This makes it clear that the issue of a voucher and the subsequent supply of goods or services constitute a single transaction for VAT.
- Address the VAT treatment of multiple purpose vouchers (MPV's) in a distribution chain which may well be cross border. Before they arrive in the hands of a consumer, these vouchers often pass through a chain of distributors. Although the underlying transaction is not to be taxed until the eventual supply of goods or services takes place, the commercial distribution of an MPV is in itself a supply of a taxable service which is independent of the underlying supply. When this MPV changes hands in a distribution chain the taxable amount for the service involved can be measured via the evolution in the value of the voucher. Where a distributor buys a voucher for X and subsequently sells it for a higher figure, X plus Y, the increment Y puts a value on the distribution service supplied.
- To facilitate the computation of the taxable amount for each stage of a distribution chain, a concept of nominal value is established and defined in Article 74a as the total consideration accruing to the issuer of an MPV which in turn is the taxable amount (plus VAT) attributable to the supply of the underlying goods or services.
- The construction used in these two provisions ensures that the totality of the taxable operations associated with an MPV – the supply of a distribution service and the supply of the underlying goods or services – are described and taxed in a manner which is comprehensive, neutral and transparent.
- Discount vouchers. To avoid a complex series of adjustments, it is proposed to treat this discount as a separate supply of a service by the redeemer to the issuer. The measures required for this are set out in a new point (e) to Article 25 and in Article 74c.
- Other changes. Some further technical changes to the VAT Directive will be required to ensure the proper functioning of these solutions, notably as regards the right of deduction (Article 169), the person liable for payment of the tax (Article 193) and other obligations (Article 272). Technical changes to Articles 28 and 65 are needed to deal correctly with MPVs and SPVs respectively.
5.4. Advocate General's opinion in Deutsche bank re portfolio management services
The Advocate General (AG) has released her opinion on whether portfolio management services provided to individual investors should be exempt in the same way that similar services provided to special investment funds are. The opinion was requested by the German Bundesfinanzhof (Federal Finance Court) in connection with the case of Finanzamt Frankfurt am Main V-Hochst v Deutsche bank AG.
First, the AG noted that discretionary portfolio management services consisted of various elements such as providing expertise, deciding which transaction to enter into, carrying out these transactions and providing related administrative service elements. She confirmed that these elements represented a "single economic operation" and should share the same VAT treatment.
With regard to the exemption, she stated that the taxpayer's arguments were not unreasonable, but concluded that the wording of the VAT Directive did not allow for exempting these services. Generally, fund management services are not exempt; otherwise there would not have been the need to introduce the clause regarding such services being provided to special investment funds. Even if the principle of fiscal neutrality needed to be observed, it could not be evoked here as there was no clear wording in the Directive that would allow exemption.
Consequently, the VAT exemption could not apply to portfolio management services to individual investors. Not surprisingly, the AG also held that portfolio management services (whether or not exempt) are financial services for place of supply rule purposes.
We will need to see whether the final judgment will confirm the AG's opinion which would mean there would be no change to the UK law.
However, even if it does, it is worth noting that the AG stated that the position may change following the EU Commission's review of Financial Services which is currently in progress. In the meantime, there are a number of other CJEU referrals on fund management services pending, most notably with regard to pension funds, and we will monitor and report on developments as they arise.
It is also worth noting the AG's remarks about the portfolio management service representing "a single economic operation". In the UK, investment managers sometimes charge separate, exempt commission for arranging transactions – it may be that this will be challenged if the court adopts the same reasoning in its final decision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.