1. PAYE AND EMPLOYMENT MATTERS
1.1. Consultation on OTS's recommendations on share schemes
The Government has launched a consultation on 15 of the Office of Tax Simplification's (OTS) recommendations on share schemes (for comment by 18 September 2012). The OTS made three main recommendations are:
- introduce a self certification process for the SIP, SAYE and CSOP schemes;
- undertake further investigation into whether the CSOP scheme is still relevant for UK businesses; and
- if CSOP is found to still be of relevance, merge the EMI and CSOP schemes.
Of these main recommendations, the Government has accepted that self certification should be explored further for SIP, SAYE and CSOP schemes. In addition, there is a request for further views and evidence on a number of the OTS's other recommendations on share schemes. It will investigate the current relevance of the CSOP scheme, but is not at this time consulting on the OTS's proposal that EMI and CSOP be merged. However it will accept new economic evidence on how the schemes are currently used and the tax influence on that use.
With respect to self certification there is concern to protect both the employer and the exchequer. As the tax benefit of these schemes is principally for the employees, one concern is that if it turns out that a scheme should be wound up as a result of failure to comply with the rules, there would need to be an effective mechanism for recouping any incorrectly granted tax benefits. There are other administrative simplifications on communication of scheme terms and the way the current rules are phrased, on which responses are requested.
Of the OTS's 23 other recommendations, further views and evidence are requested on twelve, covering:
- provisions concerning retirement for SIP, SAYE and CSOP;
- cash takeovers;
- uncapped PAYE and NICs liability on cash takeovers (SIP);
- SIP, SAYE and CSOP material interest rules;
- restrictions on shares that can be used in SIP, SAYE and CSOP;
- removal of redundant legislation for SIP;
- the accumulation period for SIP partnership shares;
- the operation of PAYE for SIP shares that leave a plan early;
- SIP dividend reinvestment;
- SAYE savings periods;
- the rules on non PAYE contributions under SAYE; and
- the exercise period for EMI share options following a disqualifying event.
In addition there is a request for views and evidence concerning the harmonisation and rephrasing of 'good leaver' provisions.
A response to the consultation will be published in autumn 2012 and any change on self certification will be developed for implementation no later than 2014. Where a decision is made to proceed with a recommendation on one of the twelve other areas considered and the good leaver provisions, further details and any draft legislation will be published in autumn 2012. The response will also announce a decision on how to proceed with the outcome of the investigation of the relevance of CSOP arrangements.
1.2. Financial Reporting Committee to consult on executive remuneration
The Financial Reporting Council (FRC) has announced that it will consult on whether to amend the UK Corporate Governance Code to address a number of issues relating to executive remuneration. The consultation will be carried out after the Government's legislation on voting and reporting on executive remuneration has been finalised.
The FRC will consult on two proposals that the Government has asked it to consider: to extend the Code's existing provisions on claw-back arrangements, and to limit the practice of executive directors sitting on the remuneration committees of other companies.
It will also seek views on whether companies should engage with shareholders and report to the market in the event that they fail to obtain at least a substantial majority in support of a resolution on remuneration.
www.frc.org.uk/press/pub2806.html
1.3. EC regulations affecting social security obligations in cross border situations
The European Commission has released updated regulations on the payment of social security contributions. This changes the home base rule used to determine to which member state the employee and employer should pay national insurance contributions. Transitional arrangements and a special exemption are also discussed.
The new rules came into force on 28 June 2012 and relate to the payment of Social Security contributions for some airlines and aircrew. Social Security contributions co-ordination rules are contained in EC Regulation 883/2004 which determine where and when National Insurance contributions have to be paid.
A new Home Base regulation has been introduced in EC Regulation 465/2012 to determine which member state aircrew and their employers will pay contributions to. Currently most aircrew pay contributions to the member state they live in if they perform a substantial (25% or more) of their activities there or if not then to the state where their employer is based.
Under the new Home Base rule, aircrew and their employer will now pay contributions to the member state where the Home Base is situated. This will normally be where the crew member lives.
Transitional arrangements
Delayed Change of State: If under the new rules, the state a crew member is paying contributions to would change, then they can elect to pay the original state for a transitional period of up to 10 years, unless there is a change of material circumstances.
Immediate Change of State: Crew members can ask that the new rule be applied to them immediately.
For crew members that frequently change their home base, their employer can apply for a special agreement to keep the employee's home base in a single state.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:149:0004:0010:EN:PDF
1.4. HMRC Q&A on making share based payments to an employee after they have left
HMRC has issued revised guidance for employers providing share-based payments to former employees. This guidance is in the form of questions and answers and takes precedence over the previous version. However HMRC acknowledge that some 2012/13 payments will already have been made or arranged according to the original guidance.
www.hmrc.gov.uk/thelibrary/tax-paye/share-payments.pdf
1.5. NIC rules for those going to or coming from Norway, Iceland and Liechtenstein
From 1 June 2012 the rules contained in EC Regulations 883/2004 and 987/2009 will apply to Norway, Iceland and Liechtenstein. These rules can affect the National Insurance contributions liabilities of employed and self employed people moving between EU Member States and these countries or in certain cross border situations.
www.hmrc.gov.uk/news/news260612.htm
2. BUSINESS TAX
2.1. Extending access to EMI to academic employees
The Government announced at Budget 2012 that it would consult on extending access to EMI for academics employed by a qualifying company. This consultation has now been issued.
Academic employees who develop ideas or research into commercial products can play an important role in the success of a business. However, such employees may sometimes only work part time for a company, for example where they also have teaching or other academic commitments with a university or similar institution. This can make it difficult for these employees to satisfy the EMI working time requirement (which is broadly at least 25 hours per week, or if less, 75% of their working time).
The purpose of this consultation is to identify an appropriate way to amend the legislation, so that EMI options may be offered by a qualifying company to academic employees who do not satisfy the present EMI working time requirement.
The consultation proposes that an academic employee eligible for the relaxed EMI requirements, should be defined as a person who, in addition to their employment on the business of an EMI company, also works in an academic field for a research institution as defined in section 457 ITEPA. That defines a research institution as (subject to any amendment made by the Treasury):
- any university or other institution that is a publicly funded institution as defined in section 41(2) of the Higher Education Act 2004; or
- any institution that carries out research activities otherwise than for profit and that is neither controlled nor wholly or mainly funded by a person who carries on activities for profit.
It is further proposed that where, after the issue of an EMI option, a change in the academic's working arrangements means that they no longer meet this definition of academic employee, that should be a disqualifying event for EMI purposes. Unless therefore the employee then satisfies the current general EMI working time requirement, the EMI option would need to be exercised within the 40 day period specified in the legislation in order to benefit from tax advantages.
The other proposals cover:
Working time requirement
The academic employee would meet a relaxed working time requirement, whereby their average hours employed by the EMI company, together with their average hours employed on relevant academic work for a research institution, when combined, are 25 hours or more per week (or, if less, 75 per cent of their working time). Within this new working time requirement, a specified minimum number (or proportion) of average hours per week would need to be spent on the business of the EMI company.
Quality of work for EMI company
The academic employee's work for the EMI company must be relevant to the academic discipline for which they are engaged by the research institution. In addition the type of work carried out for the EMI company must meet one of two requirements:
- The academic was recruited by the EMI company to work on activities which qualify as research and development in accordance with section 1138 Corporation Tax Act 2010; or
- The academic was recruited by the EMI company in connection with research relating to that company's intellectual property. Intellectual property for this purpose would be as defined in section 456 ITEPA.
Comments are requested by 18 September 2012.
2.2. Whether a settlement payment and associated legal costs represented a contingent liability
The First Tier Tribunal has considered the case of Mr Ben Nevis and HMRC.
Mr Nevis received 2,650,542 LGL shares and £16,687,792 in value of £1 Lomond Group Limited (LGL) loan notes in exchange for his 8,668,983 shares Nevis plc on a take over of that company by LGL. This represented a value of approximately £33.4m.
LGL subsequently took action against Mr Nevis in respect of representations made for the purposes of the offer for purchase of the company and Mr Nevis entered into a settlement agreement dated 2 February 2006 with LGL under which he made a settlement payment of £12million. He also incurred legal costs of £5.6million.
Mr Ben Nevis claimed that the settlement payment and the associated legal costs of defending the litigation should be treated as consideration given for the LGL shares and loan notes (in accordance with s49 TCGA and ESC D52) and that both should be deductions in the calculation of his capital gains arising in 2002-03 on the eventual disposal of those LGL interests.
The case rested on whether the payments were in respect of what is described in TCGA s49(1)(c) as for any contingent liability in respect of a warranty or representation made on a disposal by way of sale or lease of any property other than land. The impact of the application of ESC D52 is that HMRC accept that if a payment falls within section 49 in respect of a share for share exchange then the application of the section will be extended to a disposal of shares or debentures received in a TCGA s135 exchange as in the case of Mr Nevis' exchange of interests in Nevis plc for interests in LGL.
HMRC argued that the payment was not made in respect of a contingent liability but in satisfaction of a contractual obligation; and if Mr Nevis had any liability that was compromised by the settlement agreement it was an actual liability and was not a liability that was subject to any contingency. They argued that if the Profit Representation was a representation for the purposes of section 49 then it was given to LGL by Mr Nevis in his role as Chairman, Chief Executive and Director and not as seller.
Mr Nevis argued that the settlement was a contingent liability within the meaning of s49(1)(c) and that since there was litigation on the basis that the purchase of the shares was induced by, inter alia, that representation, then the sum paid to settle the litigation was the quantum of the contingent liability.
The Tribunal agreed with Mr Nevis that there was no requirement for the representation to have been made in his personal capacity.
The Tribunal concluded from the pleadings in the litigation that the profit forecast was a representation made on the disposal of shares and there was therefore a contingent liability in respect of that representation.
The Tribunal found that there is not a close enough nexus between the legal costs incurred and the contingent liability to allow any costs to form part of a contingent liability within the meaning of TCGA s49. Accordingly the appeal failed on this issue.
www.financeandtaxtribunals.gov.uk/judgmentfiles/j6494/TC02061.pdf
2.3. Whether the accounting treatment in an intragroup loan relationship was GAAP compliant
The First Tier Tribunal case has considered an intragroup loan arrangement between (i) Greene King plc ("PLC") and (ii) Greene King Brewing and Retailing Limited ("GKBR") and (iii) Greene King Acquisitions Ltd ("GKA"), both wholly-owned subsidiaries of PLC, for the periods ending 30 April 2003 and 30 April 2004.
The transactions were made under a marketed tax scheme, described as follows:
"Accounting
We shall assume that prior to stripping the coupons [PLC] has accrued interest on the loan to the value of £1.2m, and the market value of the coupon stripped is £22.6m:
- [GKBR]
- [GKBR] will show the loan as a liability in its balance sheet and will credit its Profit & Loss Account with the interest accrued during the accounting period.
- [PLC]
- [PLC] will accrue interest on the Loan prior to the date of the assignment. The interest will be credited to the Profit & Loss account.
- The value of the Loan should be impaired in [PLC's] accounts after it has assigned to [GKA] the right to receive 1.5 years of interest payments. However it is not uncommon practice in the UK for companies not to perform an impairment review in respect of intercompany loans.
- If the Loan is impaired, it will accrete the value of the Loan to £300m over the 1.5 year period, with corresponding credits being taken to the Profit & Loss Account.
- The preference share that [PLC] receives as consideration for assigning the interest will not be accounted for except as a revaluation as it has already effectively been recognised in the carrying value of the loan or reflected in the accretion up to £300m. [PLC's] assets do not exceed £300m.
- [GKA]
- [GKA] will show the payments that it will be entitled to receive from [GKBR] over the next 1.5 years as an asset in its balance sheet at its fair value (£22.6m).
- [GKA] will show an increase in shareholders' funds equal to the fair value of the consideration received (£22.6m). As a matter of company law, [GKA] will be required to show the preference share on the basis of its nominal value of (£1.2m) and the balance of the consideration (£21.4m) will be taken to the share premium account.
- The aggregate value of the interest payments will be £23.81m. The difference between this figure and the fair value of £22.6 m (£1.21m) will be treated as interest by the investor, which it will credit to its Profit and Loss Account at a constant rate over the 1.5 year period.
- On each occasion [GKBR] makes a payment to [GKA] the payment will be split between interest and a repayment of capital. The value of the asset shown in [GKA's] accounts will fall over the 1.5 year period to zero.
Taxation
- [GKBR]
- [GKBR] will be able to claim relief on an accruals basis for the payment of interest in respect of the Loan. This deduction should be unaffected by the assignment of that interest from [PLC] to [GKA].
- [PLC]
- [PLC] has a Loan Relationship with [GKBR] before and after the assignment of the interest.
- The provisions of para 12 Sch 9 FA 1996 do not apply because [GKA] does not replace [PLC] as a party to the loan relationship.
- [PLC] is taxed on an amount equal to the accounting value given to the Preference Share at the time of the assignment as a profit on a related transaction (£1.2m).
- [GKA]
- [GKA] is a party to a loan relationship in its own right, represented by the rights to interest. [GKA] should bring into account its profit as a profit from a loan relationship rather than as interest; there is no interest under this loan relationship.
- [GKA] should bring into account a profit of £1.21m in respect of its loan relationship, on which it should be taxed on an accruals basis over the term of the loan as it accretes the value of the asset from £22.6m up to £23.81 m.
- [GKA] should not have to bring, into account for tax purposes the £21.4m that is mandatorily taken to its share premium account."
The issues for consideration were:
Issue 1: Whether PLC should have accounted in its individual accounts for an additional £1.5 million (representing the nominal value of the preference shares received as consideration for the interest strip) as taxable profit in the year ending 4 May 2003.
- The parties agreed shortly before the hearing began that the £1.5 million nominal value of the preference shares issued by GKA to PLC did not represent a realised profit in PLC's hands. In the discussion on this point by expert witnesses, however, it became evident that there was room for divergent views about the correct accounting treatment of some transactions
Issue 2: Whether PLC was taxable under s 84(2) FA96 on £20,453,476 (the aggregate of the sums referred to in the closure notices) as a loan relationship credit. The Tribunal were not required to decide whether the taxable amount, assuming it was taxable, had been correctly calculated.
- In the view of the Tribunal, Greene King's representatives failed properly to distinguish between impairment on grounds of doubtful recoverability and discounting because of time lapse before payment, and also failed to recognise that, although PLC's overall position was unchanged, the value of the loan had been diminished in exchange for an augmentation elsewhere. The Tribunal also agreed with HMRC's representatives that there was no ground on which a departure from the terms of paras 23 and 71 of FRS 5 was warranted. This meant that partial de-recognition was required by UK GAAP, PLC was obliged to bring the accretion from the NPV of the capital sum on the date of the assignment of the interest strip until redemption into taxable profit, and issue 2 must accordingly be determined in HMRC's favour.
Issue 3: Whether GKA had a loan relationship with GKBR as result of the first transaction.
- The Tribunal considered it was not necessary to determine this issue. However even if there was a loan relationship between GKA and GKBR, they considered the interest did not arise under it. Therefore the sums received by GKA did not fall within s84(1)(b) FA96 and the requirement that the interest should arise under GKA's loan relationships was not met. They were unimpressed by the arguments of Greene King's representatives that the decisions on issue 1 & 2 could lead to double taxation. The transactions were a device for ensuring that relief for payment was not matched by taxation of the receipt, and Greene King had no evident difficulty with that outcome. It did not seem to the Tribunal that the company could legitimately complain if the scheme failed in its purpose and instead resulted in their paying tax twice.
Issue 4: Whether s 84(2)(a)FA96 applied to the credits in GKA's accounts arising from the receipt of interest.
- Following the conclusions on the other issues this issue was considered irrelevant. However the Tribunal did comment that Section 130 of the Companies Act 1985 did not require GKA to transfer the premium received on the issue of the preference shares to its share premium account. Moreover, s 84(2)(a) FA96 did not apply to the payments received by GKA. Alternatively, it applied only an amount equivalent to the minimum premium value.
www.financeandtaxtribunals.gov.uk/judgmentfiles/j6502/TC02069.pdf
3. VAT
3.1. EC requests the UK to amend its rules on reduced VAT rates on energy saving products
The European Commission has asked the United Kingdom to amend its legislation which allows a reduced VAT rate for the supply and installation of "energy-saving materials". This measure goes beyond the scope allowed under the VAT Directive.
Under EU VAT rules, Member States can only apply reduced VAT rates to a limited number of goods and services, which are clearly listed in Annex III of the VAT Directive. This list does not include the supply and installation of "energy saving materials". Therefore, the UK's application of a reduced rate in this area contravenes EU legislation.
The request takes the form of a Reasoned Opinion (the second stage of an infringement procedure). If the legislation is not brought into compliance within two months, the Commission may refer the matter to the European Court of Justice.
This may have implications for the Government's 'Green Deal' initiative which is aimed at providing finance for energy efficient improvements to property which can be repaid from energy savings, as many of the projects at which it is aimed are very finely balanced in terms of cost.
The Green Deal is a financing mechanism that lets people pay for energy efficiency improvements through savings on their energy bills. The Green Deal launches this autumn (expected to be October 2012) and applies to both the domestic and non-domestic sector. It will replace current policies such as the Carbon Emissions Reduction Target (CERT) and the Community Energy Saving Programme (CESP).
There are 45 measures or areas of home improvement approved to receive funding under the Green Deal, covering:
- insulation;
- heating and hot water;
- glazing;
- microgeneration (generating your own energy).
For the non-domestic sector lighting, mechanical ventilation and heat recovery measures can also be covered. More areas may be added as technology develops.
3.2. VAT exemption and intermediary financial service supplies
This appeal to the First Tier Tribunal concerns the VAT liability of services supplied by Bloomsbury Wealth Management LLP ("Bloomsbury") to its clients. In January 2010, Bloomsbury made a claim, by way of voluntary disclosure, for repayment of £258,592 output tax which Bloomsbury said it had accounted for in error between 1 October 2005 and 30 September 2009. Bloomsbury had accounted for VAT at the standard rate on its services which it now considered should have been exempt intermediary services within item 5 of Group 5 of Schedule 9 to the VAT Act 1994 ("VATA"). HMRC rejected the claim on the ground that Bloomsbury's services were not within the exemption and were chargeable to VAT at the standard rate.
HMRC made an application to adjourn the hearing due to the pending judgement in the CJEU case of Deutsche Bank. This application was rejected by the Tribunal on the basis that it was not sufficiently clear from the terms of the reference provided to them that the case would determine the issues in this appeal. It was open to HMRC and Bloomsbury to appeal this at a later date if the CJEU demonstrated the Tribunal had made an error in law.
The exemption for intermediary services is restricted to the bringing together of someone who provides services falling within Items 1, 2, 3, 4 or 6 of Group 5 and someone looking to receive such services. The Tribunal considered, however, that HMRC were wrong to regard Bloomsbury's services as predominantly the introduction of clients to fund managers with a view to the clients receiving fund management services. On the evidence presented, the Tribunal considered that what the clients sought and what Bloomsbury provided was, initially, advice on the most appropriate investments for the client and, thereafter, implementation of that advice.
As a secondary argument HMRC maintained that Bloomsbury provided wealth management advice and that the introductory service was ancillary to that and therefore part of a single standard rated supply. However the Tribunal rejected this argument, commenting as follows:
"We have no doubt that clients considered the advice they received at the initial meeting to be an important part of the service provided by Bloomsbury. We consider that the fact that there was no fee for that advice if the client decided not to invest shows that it was not the most important part of the service to Bloomsbury or its clients. As referred to in the previous paragraph, the evidence showed that the focus of Bloomsbury's services was the creation and maintenance of a portfolio of units for its clients which is an exempt supply of intermediary services. In our view, the initial advice was an ancillary service to the principal supply of intermediary services relating to the acquisition, maintenance and disposal of the portfolio of units."
The Tribunal therefore concluded Bloomsbury's services were within the exemption. While each case will be fact specific, the method of operation used by Bloomsbury may be similar to the way many independent financial advisers will operate when the transition to the retail distribution review is effective (from January 2013).
www.bailii.org/uk/cases/UKFTT/TC/2012/TC02063.html
3.3. Transfer of a going concern (TOGC) and the creation of a sublease
A recent case calls into question the guidance included in HMRC Notice 700/09 at 2.5 and 6.2 & 6.3 on what is and what is not a TOGC in respect of a property rental business, subject to the other conditions for a TOGC being met.
The Robinson Family Limited (a property developer) held a site directly through a lease from Belfast Harbour Commissioners ("BHC") ("the Head Lease") with a term of 125 years from 1 January 2006, subject to a reviewable ground rent. Having undertaken demolition works, they then commenced the re-development of the site – a process which took approximately two years. The ultimate completed development consisted of 6 commercial units. The Head Lease was in BHC's standard form for lettings of this type ("the BHC Standard Lease") and by virtue of the restrictions on alienation, assignments of part were prohibited. As a result, disposals of the completed Units could only be effected by way of sub-leases. A dispute arose with HMRC as to whether the TOGC provisions applied to the disposal of several of the units, with the VAT at stake initially amounting to £447,300, but subsequently reduced to £184,800, representing the disputed VAT on one of the units (Unit 3).
The assessment in the case of Unit 3 as originally raised, represented an apportionment of the tax assessable – on the basis that only one floor out of three was independently let. Following the review and its change of approach, HMRC was of the view that the whole of Unit 3 ought to have been the subject of a Vatable supply (because in its entirety it was the subject of a new lease), but HMRC were caught by the three year time limit in which HMRC have to make an assessment. As such, therefore, HMRC was not able to raise a separate assessment.
Unit 3 was disposed of to C J Higgins Ltd, an insurance broker, and the Tribunal was provided with a copy of the sale agreement dated 21 July 2006. The contract provided for a sale by way of sublease for the entirety of the contractual term of the BHC Head Lease, less the last three days of that term. The purchase price was £1.6m with the sale being treated as a TOGC. The contract in this case included the usual drafting relating to TOGC transfers of a business and, most relevantly of all, indicated that any purported transfer of the vendor's interest under the terms of the contract was subject to a proposed letting to Eastonville Traders Limited. The letting to Eastonville Traders Ltd never materialised. After the sale was completed, C J Higgins Ltd. sub-let a portion of the building to Jelly Communications Limited, but that transaction occurred after the sale to C J Higgins Ltd had been completed.
HMRC established that ultimately two-thirds of Unit 3 was being actively used by C J Higgins Limited, and that the balancing one-third was being used as a property letting business (ie it was let to that third party). It was on that basis that HMRC firstly assessed that the transaction did not comply with the TOGC provisions (as the interest transferred was not precisely the same interest which the vendor held), and secondly apportioned the tax due in respect of Unit 3 on a pro rata basis.
The factors guiding the decision of the Tribunal included the following:
- The vendor was constrained by the title which it held from Belfast Harbour Commissioners on foot of the BHC Standard Lease. That form of lease requires all developers within Belfast Harbour Estate to conduct transactions in a particular manner – namely by way of the creation of sub-leases. The question to consider was whether adherence to that title structure was sufficient to deny a developer the availability of the TOGC Provisions.
- The case of Kenmir v Frizzell [1968] 1WLR329 where Widgery J considered whether there had been a transfer of a business and held (at page 325): "In deciding whether a transaction amounts to the transfer of a business, regard must, in our view, be had to its substance rather than to its form, and consideration must be given to the whole of the circumstances, weighing the factors which point in one direction against those which point in another. In the event the vital consideration is whether the effect of the transaction was to put the transferee in possession of a going concern, the activities of which he could carry on without interruption."
- While the Tribunal was not asked to determine whether there was a letting business in existence at the time of transfer (the vendor and HMRC had agreed that there was), they did find that the right to conduct that business was transferred with the sale.
Having regard to the substance of the transaction, the Tribunal decided that in all material respects the assets of the letting business were transferred with the sale.
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.
