UK: Weekly Tax Update - Monday 4 March 2013

Last Updated: 11 March 2013
Article by Smith & Williamson

1 GENERAL NEWS

1.1 Naming and shaming

HMRC has published the first list of 'deliberate tax defaulters'.

These new rules only apply to a deliberate inaccuracy in a return or other document for a tax period beginning on or after 1 April 2010, or a failure or wrongdoing that occurred on or after 1 April 2010, which are discovered as a result of an HMRC investigation. Section 94, Finance Act 2009 allows HMRC to publish information about a person who incurs a "relevant tax penalty" for various defaults including:

  • an inaccuracy in a return or document for a tax period beginning on or after 1 April 2010;
  • a failure to notify HMRC of a liability to tax.

Deliberate defaulters may be named where, during an investigation into a period starting on or after 1 April 2010:

  • it is established that the taxpayer is liable to a penalty for a deliberate default; and
  • the potential lost revenue is more than £25,000; and
  • the taxpayer has not received the maximum possible reduction in penalties for full and early disclosure and co-operation.

So how does someone who has underpaid tax avoid being named and shamed? There will be two possible ways of avoiding this adverse publicity:

  • By making a full and complete disclosure of any deliberate defaults to HMRC before they start an investigation, so that the relevant penalties will not be found to have been discovered as a consequence of an investigation; or
  • By making a full and complete disclosure at the start of an HMRC investigation and thereafter co-operating fully. If they do this they should earn the full penalty reduction for disclosure which will mean that HMRC cannot publish their details.

www.hmrc.gov.uk/about/tax-defaulters-q-a.htm#a

1.2 HMRC's agent update

HMRC's agent update for February/March 2013 is now available.

www.hmrc.gov.uk/agents/update34.pdf

2 PRIVATE CLIENT

2.1 Annual residential property tax (ARPT)

HMRC has issued the following note regarding pre-return banding checks

"In certain circumstances, you can ask HM Revenue & Customs (HMRC) to carry out a check on your property details and valuation to see if you need to pay Annual Residential Property Tax (ARPT). This is called having a 'pre-return banding check' (PRBC). This guide explains who can apply for a PRBC and what to do if you don't receive a decision in time or you don't agree with HMRC's decision.

When to ask for a PRBC

Customers might want to contact HMRC where a property is valued at an amount close to one of the band thresholds. This is so they can agree which ARPT band the property falls into, or whether it falls outside the tax as it is deemed to be under the £2 million threshold. This is called having a PRBC and is available to customers who meet the following:

  • you are not due a relief that will reduce the ARPT charge to nil;
  • the value you have placed on the property falls within 10 per cent of a banding threshold.

If your property is valued between the thresholds shown below you may be able to apply for a PRBC using the form that will be available on the HMRC website from 1 June 2013:

  • £1.8 million - £2.2 million.
  • £4.5 million - £5.5 million.
  • £9 million - £11 million.
  • £18 million - £22 million.

When they receive your PRBC application form, HMRC will send you an acknowledgement and provide you with a reference number. They aim to provide a response to your application within 20 working days of receiving it.

HMRC will only confirm that they agree to the banding you propose, and not the specific valuation of the property. You can't use this confirmation for any other taxation purposes.

HMRC will either:

  • agree that the band that you have chosen is appropriate based on the information you have provided;
  • ask for further information from you to help them make a decision about whether you have chosen the correct band;
  • tell you that they don't agree with the valuation band you have chosen.

If you decide you need a PRBC, it's important that you apply at least 20 working days before the date on which you need to send your return - the earlier the better. This means HMRC can tell you their decision - particularly if they need more information before giving that decision - in time for you to use it when sending your return.

In some cases, the inside of the building might need to be inspected as part of the check. HMRC will normally be able to accept valuations prepared by a professional property valuer but they reserve the right to:

  • enquire into any subsequent ARPT returns;
  • challenge valuations included in those returns where they consider there is a risk that the return or valuation is wrong.

What to do if you don't receive your PRBC in time

If you didn't leave enough time for HMRC to give you a PRBC decision, or they have asked you for more information, you might not get their decision in time for the date you need to send your ARPT return. If you think you might need to pay ARPT then you should send the return along with the appropriate payment of tax. That way you can avoid accruing interest or becoming liable for a penalty for sending the return late.

You should base your ARPT return on the banding you think is most appropriate. HMRC may decide to open an enquiry into your return to enable them to continue considering the appropriate banding for your property.

You must include your PRBC reference number on any return or correspondence that you sent to HMRC.

Remember that if you don't complete and send HMRC a return or payment, or you send it late or make a mistake on it, you may have to pay a penalty and interest.

If, after you've sent your return and payment, HMRC tells you that they don't agree with your valuation and you have underpaid, you should complete an amended return and send it, with the additional payment, as soon as you can.

Interest will be payable on any ARPT paid late, but HMRC won't charge a penalty if you were waiting for a PRBC decision when your return was due.

If HMRC tells you that they don't agree with your valuation and you've overpaid then you need to send an amended return with a claim for repayment. HMRC will repay you any ARPT you've overpaid, and you might be able to claim interest.

If you don't agree with HMRC's decision

You should send your return based on your best estimate of the value of your property. HMRC may decide to open an enquiry into your return to enable them to look in more detail at the appropriate banding for your property.

Where you believe that your property is worth less than £2 million and that a return is not due, HMRC may issue a 'determination' to you based on the banding that they believe to be correct. A 'determination' is where HMRC makes a 'best estimate' of the ARPT that you owe based on their valuation of your property and issues a demand for payment. You can appeal against this determination if you don't agree with it.

You should include your PRBC reference number on any return or correspondence that you send to HMRC.

Where to get help

If you have a query relating to your specific property that isn't dealt with in this guide you can contact the HMRC Stamp Taxes Helpline."

3 PAYE AND EMPLOYMENT MATTERS

3.1 Update to advisory fuel rates

Updated advisory fuel rates effective from 1 March 2013 have been published. The rates per mile are the same as immediately before this date for all categories of car for petrol fuel.

The only changes in rates are in respect of:

  • LPG fuel: engine size 1400cc or less the rate has decreased 1p to 10p; 1401- 2000cc the rate has decreased by 1p to 12p.;
  • Diesel fuel: 1600 cc or less the rate has increased by 1p to 13p.

www.hmrc.gov.uk/cars/advisory_fuel_current.htm

3.2 Draft regulations for voluntary NIC contributions

Draft regulations have been published extending the period of time in which to make voluntary contributions for contributors who, as a consequence of the unavailability of pension statements between 2013/14 and 2016/17 (inclusive), will not be in a position to make an informed decision regarding payment of voluntary contributions for the tax years 2006/07 to 2016/17 and who will reach pension age on or after 6th April 2017.

In addition, the higher rate provisions that apply to late payment of voluntary NICs are also being dis-applied. The 2012/13 rate will be payable, until 5 April 2019:

  • in relation to Class 3 for the years 2006/07 to 2009/10; and
  • in relation to voluntary Class 2 for the years 2006/07 to 2010/11.

The regulations are intended to come into force on 6 April 2013.

www.hmrc.gov.uk/drafts/draft-si-em-tiin-regs.htm

4 BUSINESS TAX

4.1 Implementation of Nuttall review

The Government has published its response document to the October 2012 consultation on implementing the Nuttall review recommendations.

Graeme Nuttall, one of the foremost experts on employee ownership, published an independent review in July 2012 that set out a framework for removing barriers to increase the take up of employee ownership. At the end of October 2012 the Government published its response to the Nuttall Review, accepting wholly or in part all 28 of its recommendations.

One of these recommendations was for the Government to consult on improving the operation of internal share markets to support companies using direct share ownership.

The Employee Ownership and Share Buy Backs consultation sought views on proposals to:

  • lower the requirements for shareholder authorisation of off-market buy backs of a company's own shares from special resolution (requiring over 75% approval) to ordinary resolution (over 50% approval);
  • allow private limited companies to pay for its own shares by instalments;
  • allow private limited companies to hold shares it buys back in treasury and to treat them as treasury shares.

The consultation also sought evidence on the cost of compliance with existing regulations and the benefits of changes to the regulations on holding shares in treasury.

The majority of the responses agreed with the consultation proposals. There was also support for the following additional proposals to:

  • allow for companies to approve in advance multiple off-market buy backs via a single ordinary resolution, where these are connected to an employee share scheme;
  • introduce a simplified regime (solvency statement and special resolution) for enabling private limited companies to finance buy backs connected to an employee share scheme out of share capital;
  • allow private limited companies to finance the buy back of shares using small amounts of cash that does not have to be identified as distributable reserves; and
  • allow all companies limited by shares (including private and unlisted public companies) to hold their own shares in treasury.

The Government has accepted these additional proposals and will enact secondary legislation to make the necessary changes to the Companies Act 2006 in 2013.

A Post Implementation Review, due three years from enactment of this legislation, will review the effectiveness of these changes, whether there have been any adverse impacts, whether there is scope for further changes, and any evidence of monetised or non-monetised costs or benefits.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/81699/bis-13-590-employee-ownership-and-share-buy-backs-implementation-of-nuttall-review-recommendation-v-government-response-to-consultation.pdf

4.2 Creative sector tax reliefs

HMRC has issued the following note about the practicalities of claiming the new creative sector reliefs, subject to EU State Aid Approval:

Corporation Tax relief for the animation, high end TV and video games industries, ('creative industry tax credits') is available from 1 April 2013, as announced in the 2012 Budget.

As these reliefs closely follow the existing Film Tax Relief, HM Revenue & Customs (HMRC) is expanding the existing Film Tax Unit to cover the new creative industry tax reliefs as well as film.

As for film the creative industry tax credits need State aid approval and the UK Government has submitted State aid notifications for each relief on the basis of a Cultural test. If State aid approval is granted, the legislation will be included in the Finance Act 2013 subject to it receiving Parliamentary assent in summer 2013.

The Creative industries team will from 1 April 2013:

  • accept claims for the reliefs;
  • assess these claims (subject to State aid approval);
  • provide advice on the reliefs to companies and their representatives within these industries.

The team is based in Manchester and specific contact details will be issued before 1 April 2013. Guidance incorporating all Creative Industry Reliefs will be published on HMRC's web page when all details are finalised.

In the meantime any queries companies within the creative sector may have about the forthcoming reliefs can be sent to the team at Randd Manchester [this links to an automatic email].

Notes

From 1 April 2013 HMRC is expanding the Film Tax Unit to cover the new Creative Industry Tax Reliefs (animation, high-end television and video games) as well as film.

The BFI (British Film Institute) will expand the Certification Unit to carry out the administration of the cultural test and co-production processes for the new reliefs on behalf of the Department for Culture, Media and Sport (DCMS). The Secretary of State for DCMS retains sign-off responsibility for the certification processes.

Contact details will be provided in due course.

www.hmrc.gov.uk/news/creative-ind-txcrd.htm

4.3 Freedom of establishment and cross border loss relief

The CJEU has reached a judgement in the case referred by the Finnish courts concerning the merger by A oy of its closed Swedish subsidiary with its Finnish operations and the ability of the Finnish operation to gain access (for Finnish tax purposes) to accumulated losses incurred in Sweden.

Finnish companies that merge with their Finnish subsidiaries are able to utilise tax losses of those Finnish subsidiaries against taxable income from their on-going operations. A oy (a Finnish business) was the parent of a Swedish subsidiary that incurred trading losses in Sweden from three leased premises. The Swedish subsidiary stopped trading and A oy applied to merge it with its Finnish operation, assigning the leases and gaining access to the unused Swedish losses of 44.8m SEK (approximately £4.5m). The Finnish courts disallowed this on the basis that the losses had been calculated according to Swedish law and were not therefore within the scope of Finnish tax law.

The questions considered by the CJEU consisted of whether the EU freedom of establishment principle required the losses of a subsidiary based in another member state to be taken into account for the tax position of the parent company based in a different member state on a merger of the businesses, where the parent has no establishment in the member state of the subsidiary with which it has merged, and if so, which country's tax rules should be used to compute the losses available.

The CJEU concluded that the freedom of establishment principle does not prevent a country having laws which prohibit the use of losses incurred by a subsidiary in another member state by a parent resident in the home country, whereas those rules permit the use of such losses incurred by a subsidiary of the parent established in the same home country. However it concluded the rules would be contrary to the EU principle of freedom of establishment if it did not allow the parent company the possibility of showing that its non-resident subsidiary has exhausted the possibilities of taking those losses into account and that there was no possibility of their being taken into account in its State of residence in respect of future tax years either by itself or by a third party.

The CJEU also concluded that the rules for calculating the non-resident subsidiary's losses for the purpose of their being taken over by the resident parent company, must not constitute unequal treatment compared with the rules of calculation which would be applicable if the merger were with a resident subsidiary.

http://curia.europa.eu/juris/document/document.jsf?text=&docid=134107&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=201585

5 VAT

5.1 Updates to VAT Notices

VAT notice 780 (Common Agricultural Policy import procedures and special directions for goods) has been re-issued.

http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true&_pageLabel=pageVAT_ShowContent&id=HMCE_CL_000195&propertyType=document

VAT Notice 735 (VAT reverse charge on specified goods and services) has been updated, amongst other things to:

  • include details of the application of the reverse charge procedure to emissions allowances in the UK;
  • address situations where supplies are disaggregated.

http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true&_pageLabel=pageLibrary_ShowContent&id=HMCE_PROD1_028649&propertyType=document

5.2 VAT notes of 2013

HMRCs first issue of VAT notes in 2013 is now available.

http://customs.hmrc.gov.uk/channelsPortalWebApp/channelsPortalWebApp.portal?_nfpb=true&_pageLabel=pageLibrary_PublicNoticesAndInfoSheets&propertyType=document&columns=1&id=HMCE_PROD1_032606

5.3 VAT and cultural services

The British Film Industry (BFI, which runs the National Film Theatre on London's South Bank has succeeded at the First-tier Tribunal in a reclaim of overpaid VAT covering the period 1 January 1990 to 31 May 1996 amounting to approximately £1.2m plus interest. The case concerned the definition of 'certain cultural services' that should be exempt from VAT as provided in the Sixth VAT directive article 13(A)(1) and article 13(A)(2) (now in the VAT directive articles132(1)(n) and 133) as clarified by the definition of cultural services as set out in Annex H of that directive (now in Annex III item 7).

The transitional rules for implementing the sixth VAT directive with respect to this item ran out on 1 January 1990, but the UK only provided for VAT exemption on certain cultural services in VATA Sch9 group 13 from 1 June 1996.

A case taken to the CJEU against Spain (C-124/96) in 1998 concerning a similar provision of the sixth directive, (but in respect of 'certain services closely linked to sports..'), commented that member states could not use the descriptor 'certain' to unfairly limit the range of services which come within its ambit. Since then several UK VAT Tribunal decisions have refused exemption for VAT on certain cinematic activity of non-profit making bodies, but the Tribunal concluded these were wrongly decided as the CJEU case involving Spain had not been brought to their attention.

As a result the Tribunal concluded that "..all cultural services qualify for exemption by virtue of art 13A(1)(n) (provided they are "supplied by bodies governed by public law or by other cultural bodies recognised by the Member State concerned"), and that such exemption took place with direct effect (without the need for any national implementing legislation) once the transitional provisions in art 28(3)(a) expired on 1 January 1990..."

It was understood there was a dispute between the parties as to the status of the supplies by BFI for the period after 31 May 1996 as to whether the services it provided met the definition of exempt cultural services, but that was outside the scope of the proceedings before the Tribunal.

Those involved with public bodies and non-profit making entities who have supplied cultural services and accounted for output VAT on their supplies should contact a member of the S&W VAT team to discuss the impact of this decision on their situation.

www.bailii.org/uk/cases/UKFTT/TC/2013/TC02490.html

5.4 HMRC communication on the implications of the CJEU decision in Deutsche Bank (case C-44/11)

HMRC had indicated that it would issue an update on the implications of the CJEU decision in case C-44/11 (Deutsche Bank and the VAT liability of portfolio management services). However a divergence of views in the industry on the interpretation of the judgement and its likely impact, has contributed to a delay in finalisation of this communication and HMRC has indicated it is unlikely now to release anything on this before Easter this year.

6 TAX PUBLICATIONS NTBN257 - R&D tax relief 'above the line' credit

This briefing note provides information on the new 'above the line' tax relief available to large companies for expenditure on Research & Development (R&D).

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Smith & Williamson
 
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