1 GENERAL NEWS
1.1 Overseas Territories announce commitments to tackle tax evasion
HM Treasury has announced that further Overseas Territories (Anguilla, Bermuda, the British Virgin Islands, Montserrat and the Turks and Caicos Islands) have signed up to the UK Government's strategy on global tax transparency. This will involve bilateral exchange of information with the UK as well as multi-lateral information exchange with the EU G5 (France, Germany, Italy, Spain plus the UK). www.gov.uk/government/news/chancellor-welcomes-huge-step-forward-in-global-fight-against-tax-evasion
1.2 Single compliance process
HMRC has now agreed with the agent representative bodies to change the approach for Corporation Tax and Income Tax compliance checks across all small and medium enterprise cases. An opening letter will give the taxpayer seven days to tell HMRC if they wish to deal directly with the department. If the taxpayer does not reply, HMRC will contact the taxpayer's agent by phone within 14 days to progress the case. If contact or progress cannot be made, then HMRC will go back to the taxpayer.
www.hmrc.gov.uk/news/single-compliance.htm
European Parliament Committee on Economic and Monetary Affairs - Fight against Tax Fraud, Tax Evasion and Tax Havens
The European Parliament Committee on Economic and Monetary Affairs has recently adopted a draft report "Fight against Tax Fraud, Tax Evasion and Tax Havens" following the action plan against tax fraud and evasion released by the European Commission in December 2012.
Its recommendations include:
- the establishment of a "European blacklist" of tax havens based on a common definition by the end of 2014, as well as sanctions against these jurisdictions, such as the suspension or termination of agreements to prevent double taxation, and against European companies that continue to operate in such areas (e.g. ban on access to tendering procedures for public contracts or state aid);
- companies' country by country reporting of activities;
- the establishment of a register of trusts and other opaque entities that can be used by individuals to hide assets from the tax administration;
- the agreement of the revision of the Savings Taxation Directive and its renegotiation with several non-EU countries to promote the use of automatic exchange of banking information between tax administrations;
- the implementation of a compulsory CCCTB.
French and German Finance ministers also called on the Commission in a letter sent on 24 April to review current EU rules to combat money laundering and financial crime and take further measures in this area to limit the ability of financial establishments to operate with non-cooperative jurisdictions.
Improving the efficiency of tax collection and tackling tax evasion and fraud will be on the agenda of the next Ecofin Council, on 14 May, and subsequently it will be discussed at the European Council, on 22 May.
2 PRIVATE CLIENT
2.1 Error in HMRC's April 2013 Trust & Estate newsletter
There was an error on page 2 of HMRC's April 2013 Trusts & Estates Newsletter under the subheading 'Dealing with the Income Tax and/or Capital Gains Tax liability of a deceased person's estate'. The second paragraph should say - 'The tax liability of most death estates during the administration period is straightforward. Where a trust has not been set up (by will or the rules of intestacy that apply in England and Wales), the liability can be dealt with by:
HMRC, Pay as you Earn & Self Assessment, PO Box 4000, Cardiff, CF14 8HR
www.hmrc.gov.uk/news/tande-newsletter-error.htm
HMRC Savings & Investment manual
HMRC has published draft changes to its Savings and Investment manual to cover the FB2013 changes on interest in kind, interest included in compensation payments, specialty debt and disguised interest. These draft changes are available for comment upto 31 July 2013
www.hmrc.gov.uk/manuals/saimmanual/updates/saim-guidance.pdf
3 PAYE AND EMPLOYMENT MATTERS
3.1 Real Time Information announcements
HMRC has issued a number of announcements on RTI as follows:
- RTI and Annual schemes:
www.hmrc.gov.uk/news/rti-annual-schemes.htm - 2012-13 forms P11D(b) and payslips - employers in the Real Time
Information (RTI) pilot:
www.hmrc.gov.uk/news/forms-payslips-rti.htm - Correcting payroll reports for misalignment between payment
dates and tax periods:
www.hmrc.gov.uk/payerti/reporting/correcting-reports.pdf - Real Time Information - your 2012-13 end of year report and
first 2013-14 RTI report:
www.hmrc.gov.uk/news/rti-report.htm
3.2 Employer supported bus services
HMRC has issued some frequently asked questions to clarify the tax treatment of employer supported bus services.
www.hmrc.gov.uk/thelibrary/local-bus-faqs.pdf
4 BUSINESS TAX
4.1 Whether VAT repayments are subject to corporation tax
In the case of Shop Direct Group and others, the Upper Tribunal agreed with the First tier Tribunal that VAT refunds and interest on those refunds were subject to corporation tax in the case of refunds relating to VAT on business activities, even where the business (and right to VAT refunds) had been transferred.
www.tribunals.gov.uk/financeandtax/Documents/decisions/shop-direct-others-v-HMRC.pdf
4.2 Investment trust companies
It was announced in the 2013 Budget that secondary legislation would be introduced to provide a further exception to the income distribution requirement for investment trust companies at regulations 19 and 21 of the Investment Trust (Approved Company) (Tax) Regulations 2011 (SI 2012/2999). The exception will apply in certain circumstances where an investment trust company has accumulated realised revenue losses in excess of its income for an accounting period, such that a requirement to make a distribution would result in a distribution from capital.
Draft regulations have now been published for comment by 28 May 2013. Subject to the consultation responses, the changes are expected to take effect for accounting periods commencing on or after 1 July 2013.
www.hmrc.gov.uk/drafts/itc.htm
www.hmrc.gov.uk/drafts/itc-si.pdf
www.hmrc.gov.uk/drafts/itc-si-em.pdf
4.3 Partnerships and the ability to prosecute a dissolved partnership
The Advocate General for Scotland has issued a notice regarding new law affecting the ability to prosecute partnerships, and which came into force on 26 April 2013. An extract from the notice follows:
"In 2004 a fire in Rosepark Nursing Home in Uddingtson, Lanarkshire, led to the death of 14 elderly residents. The Lord Advocate brought serious criminal charges under health and safety legislation, but because of a legal technicality – the dissolution of the partnership that ran the home – nobody could be prosecuted. The Partnerships (Prosecution) (Scotland) Act, which came into force on 26 April 2013, addresses the loophole that made it impossible to prosecute a partnership that had been dissolved."
4.4 Implementation of the Nuttall Review and SI 2013/999
Changes to over-burdensome share buy back rules aimed at boosting direct employee ownership and cutting red tape, were announced on 30 April 2013 by Employment Relations and Consumer Minister Jo Swinson.
A Statutory Instrument (SI 2013/999) implements one of the recommendations of the 2012 Nuttall Review of employee ownership by making changes to the Companies Act 2006. This follows on from a government consultation into impediments to direct employee ownership. The Nuttall Review found that company law provisions on the buy back of company's own shares were overly burdensome and recommended the removal of barriers and disincentives to direct employee ownership.
The regulations came into force on 30 April 2013 and make the following changes:
- Removal of the requirement on private limited companies to pay on purchase the price of shares in full in cases where the buy back is for an employees' share scheme; this will allow a private company to pay for its shares by instalments.
- Permit private companies to use cash without having to identify it as distributable reserves to finance the buy back of its own shares, up to the value of £15,000 or 5% of the share capital of the company in each financial year.
- Change the requirements for shareholder authorisations concerning contracts for share buy back to be passed; instead of the authorisation being given by special resolution (a majority of 75% of shareholders), it may be given by ordinary resolution (being a simple majority, i.e. over 50% of shareholders).
- A company will be permitted to make off-market purchases of its own shares without having each buy back contract approved by shareholder resolution, as long as the company has a resolution from the shareholders authorising this. The Government comments "Companies will now be able to approve all future buy backs over a specific period of time through shareholder resolution rather than on a case by case basis."
- The requirements that a company must fulfil when buying back its own shares using capital are amended in cases where the buy back is for the purposes of or pursuant to an employees' share scheme. The amendments reduce the requirement to a statement by the directors that the company is solvent and a special resolution by the shareholders. The Government comments "a greater range of options for financing buy backs will be available: payments by instalments, a simplified regime for buy backs out of capital; and using small amounts of cash."
- A company limited by shares will, subject to certain requirements, be permitted to hold its own shares in treasury and to deal with such shares as treasury shares. The change also allows shares bought back with cash to be held as treasury shares. The Government comments "more companies will be able to hold shares bought back 'in treasury' so that they may be issued to new employees or share scheme joiners. This company share 'storage facility' will reduce the administrative burden and costs associated with creating new shares every time a new employee joins."
www.gov.uk/government/news/government-measures-boost-direct-employee-ownership
www.legislation.gov.uk/uksi/2013/999/pdfs/uksi_20130999_en.pdf?text=share%20buy%20back
5 VAT
5.1 Whether VAT assessments in time and payment made created a tax point
The First-tier Tribunal has considered the case of Mark Reid and whether a payment was made to create a tax point and whether VAT assessments were out of time. The matter concerned an alleged VAT liability amounting to £499,083 on four invoices from Reid & Co (a VAT registered business of which Mark Reid was a practicing solicitor), one to each of four companies in which Mr Reid had a 50% interest. The invoices were issued in January 2006, but related to services supplied in the year ended 31 March 2005, and no payment was received for the invoices before 1 April 2006. HMRC raised the assessment on 8 December 2008.
Reid & Co maintained that the supplies were exempt from VAT as intermediary services in connection with finance transactions. HMRC maintained that the supplies were standard rated. While this case did not consider the VAT status of the supplies (this will be the subject of a further hearing), the timing issues around tax point and assessment were considered. The invoices in question were not formal VAT invoices, as these were only to be issued when payment had been received.
At the time in question VATA s77 provided that VAT assessments in relation to incomplete returns and penalties had to be made within three years of the end of the prescribed accounting period to which an assessment related, or three years of the event giving rise to the penalty (subject to other time limits for particular circumstances). The three year time limit increased to four years with effect from 1 April 2009.
Where supplies of services are supplied for a period and the consideration for those supplies is determined or payable periodically or from time to time, then they are treated as supplied for VAT purposes at the earlier of:
- The date payment is received by the supplier; and
- The date the supplier issues a VAT invoice.
To prevent the avoidance of VAT by continuously delaying payment and issue of a VAT invoice, SI 1995/2518 reg 94B provides (amongst other things) that where the supplier and purchaser are connected, and the purchaser is unable to recover all input VAT, then for supplies made on or after 1 October 2003, the services are treated as supplied:
- 12 months after 1 October 2003 and thereafter at 12 monthly intervals; unless
- Within six months after that date a VAT invoice is issued or payment is received, in which case the date of issue of invoice or receipt of payment applies if it has not already been accounted for.
Audited accounts for the purchasing companies were prepared for the year ended 31 March 2005 and 2006, incorporating the amounts payable and disclosing them as amounts due to related party, but in the 2005 accounts the balances owing had been amalgamated in one of the companies in a balance owed to Mark Reid as director (with corresponding intercompany accounting entries). Mr Reid's director's loan account was cleared to nil in the 2006 accounts, by reallocation of balances owing to other accounts within the balance sheet.
As the assessment was issued on 8 December 2008, if the tax point was deemed to be 30 September 2005, then unless there was a payment made within six months of 30 September 2005 (i.e. by 31 March 2006), the assessment raised on 8 December 2008 would have been out of time under the three year time limit then in operation.
HMRC raised three points on payment:
- The 2005 accounts were evidence that the invoices had been paid, as they had been allocated to the director's loan account (using the case of Pentex Oil Ltd v C&E (1992) (V7991) to illustrate that accounting entries can amount to payment where the debt is regarded as discharged). The Tribunal agreed with the appellant that merely because the balances owing had been allocated to the director's loan account (the director being Mark Reid, a principal of Reid & Co) did not evidence the fact that Reid & Co had relinquished its recourse to the purchasing companies in the event of non-payment. The conclusion was therefore that the notes to the 2005 accounts were misleading and were not evidence of payment.
- The fact that the balances owing from three of the purchasing companies had been allocated to the other purchasing company evidenced that the individual payments due had been replaced by a single payment due and this was evidence that three of the invoices had been paid. Using a similar analysis on the ability of Reid & Co to continue to pursue each individual purchasing company for non-payment, the Tribunal concluded that these accounting entries did not evidence payment. The fact that Mr Reid signed the 2005 accounts of the company as company secretary made no difference to this conclusion or the previous one.
- The clearance of the director's loan account in the 2006 accounts evidenced payment by 31 March 2006. After further evidence from the auditors it was apparent that there had been a re-allocation of the amounts due in respect of the invoices – from the director's loan account to 'commissions due'. Accordingly the Tribunal concluded the clearance of the director's loan account in this instance did not evidence payment.
The overall conclusion was that the December 2008 assessment was time barred. This case is a useful recap of tax point issues concerning continuous supplies and payment and how considered responses to intense HMRC assertions can pay off.
www.bailii.org/uk/cases/UKFTT/TC/2013/TC02655.html
5.2 Upper Tribunal VAT decision on sport club membership fees
The Upper Tribunal (UT) has allowed HMRC's appeal against the First-tier Tribunal's (FTT) decision holding that membership arrears collected before being able to resume admission to sporting facilities were given for a consideration.
The FTT considered that although the membership was not terminated, there were no benefits to membership without access to the gym. The link between payment and supply was therefore broken. Recovered membership dues were therefore not taxable consideration but were "compensatory in nature" and hence outside the scope of VAT. In contrast the UT considered the link between payment and supply was not broken and concluded:
"We consider that the correct analysis is that the 5 monthly payments are consideration for supplies of services by Esporta, namely the grant of the right to enter the premises of the club and to use the facilities and services provided there, subject to availability, during the Commitment Period. The monthly payments are consideration for the supply of the services whether they are paid in advance, on time or late. The fact that access to the facilities is denied for months where payment is not made on time does not break the link between the payments and the services that are provided during those months where monthly fees are paid on time and access is allowed. We also consider that the same analysis applies where the unpaid fees are recovered after the Commitment Period has ended as then the payment is also late payment for services that have been supplied during the Commitment Period."
www.tribunals.gov.uk/financeandtax/Documents/decisions/HMRC-v-Esporta-Limited.pdf
5.3 Supreme Court decision concerning VAT in the motor insurance business
By a unanimous decision the Supreme Court has upheld the 2007 decision of the Court of Appeal in WHA Ltd and others (the recoverability of VAT on motor repairs incurred in the course of providing motor breakdown insurance (MBI)), but determined the outcome for different reasons. In reaching its conclusion the Supreme Court referred to the House of Lords' decisions in Redrow Group plc [[1999] UKHL 4] and the Supreme Court's decision in Aimia (formerly LMUK [2013] UKSC 15).
The background to the case (from paragraphs 6 – 17 of the decision):
6. The National Insurance and Guarantee Corporation plc ("NIG") is a UK insurer. It has underwritten MBI policies for many years. The policies cover the cost of repairs and replacement parts following breakdowns of second hand cars. The policies are marketed and sold by another UK company, Warranty Holdings Ltd ("Warranty"), which is a member of the Oriel group of companies, the holding company of which is Oriel Group plc. Prior to the implementation of Project C, NIG reinsured the risks under the policies with Practical Insurance Company Ltd ("Practical"), a Gibraltar-based reinsurer which is another member of the Oriel group.
7. Until the implementation of Project C, Warranty was appointed by NIG to handle all claims made under the policies. In the event of a breakdown the insured contacted Warranty, which directed the insured to take the vehicle to an approved repairer, or a repairer of the insured's choice, or the dealer (all of which I shall refer to as "the garage") for repair. The garage provided repair services and billed Warranty for the cost or, if the cost of the repair exceeded the insurance cover, for the amount of the cover. As claims handler, Warranty made arrangements with approved repairers which were designed to keep down the cost of repairs.
8. These arrangements resulted in the VAT paid by Warranty on the repair services and parts supplied by the garage being irrecoverable. This was the problem which Project C was designed to solve.
9. Project C had two strands, each of which was based on the operation of statutory provisions. The aim was that the first strand should be enough to secure the recovery of the VAT paid on the repairs. The second strand was designed to provide a fall-back position should the first not hold.
10. Putting the matter very broadly, the first strand was based on legislation designed to ensure that there was no VAT burden on the supply of certain insurance and financial services by UK businesses to consumers outside the EU. The legislation gave credit for input tax which was incurred for the purpose of businesses making certain specified types of supply to a person outside the EU. The specified supplies included the provision of assistance in the administration and performance of insurance contracts, including the handling of claims. The legislation was interpreted by those responsible for Project C as enabling a UK insurance claims handler to recover input tax incurred for the purpose of its supplying claims handling services to a non-EU recipient.
11. Project C sought to avail itself of this legislation by having the first appellant, WHA Ltd ("WHA"), a UK member of the Oriel group, supply claims handling services to the second appellant, Viscount Reinsurance Company Ltd ("Viscount"), a Gibraltar-based member of the group, with which 85% of the risk under NIG's MBI policies issued through Warranty was ultimately reinsured. Provided (1) the garages made supplies of labour and parts to WHA (and not, as previously, to the insured car owner) and invoiced WHA for those supplies, (2) WHA then invoiced Viscount for claims handling services and (3) the latter invoice covered the amounts invoiced by the garages, WHA would be able to recover the VAT charged by the garage, and would not have to charge VAT on its onward supply of claims handling services to Viscount. That, in short, was the thinking behind the first strand of Project C.
12. The first strand envisaged, as I have explained, that no VAT would be chargeable on the supplies to Viscount. The second strand of Project C was designed to provide a fall-back line of defence if that was disputed by the Commissioners: if, for example, they maintained that WHA did not use the garages' supplies for the purpose of making its own supplies of claims handling services to Viscount, or contended (as actually happened) that WHA's supplies to Viscount were wholly or partly chargeable to VAT as being supplies of repairs or parts rather than supplies of claims handling services. Again putting the matter very broadly, the second strand relied upon UK VAT legislation which was interpreted as enabling Viscount to recover the VAT which it paid to WHA so long as Viscount itself made supplies to a non-EU recipient. For the purpose of the second strand, it was therefore necessary to instal another non-EU entity between NIG and Viscount. That entity was Crystal Reinsurance Company Ltd ("Crystal"), another Gibraltar-based member of the Oriel group. It reinsured 100% of the risk under NIG's MBI policies issued through Warranty, and in turn retroceded 85% of the risk to Viscount. The NIG policies were the only reinsurance business carried on by Crystal and Viscount.
13. The end result of the first strand of Project C was thus intended to be that WHA (1) would be the recipient of the repair services on which the garages charged VAT, (2) would not have to charge output tax on its onward supplies to Viscount, and (3) would therefore be entitled under the relevant legislation to recover the input tax from the Commissioners. The end result of the second strand was intended to be that, if proposition (2) did not hold and WHA had to charge output tax on its supplies to Viscount, Viscount would nevertheless be entitled to recover that tax from the Commissioners.
14. Following the implementation of Project C in 1998, the Commissioners refused the claims made by WHA and Viscount for the repayment of tax. WHA and Viscount then appealed to the Value Added Tax and Duties Tribunal ("the tribunal"). Before the tribunal, the Commissioners challenged the effectiveness of Project C on the basis that none of its three central planks was sound. First, they maintained that there was no supply of services by the garages to WHA: if that contention were accepted, it was fatal to the success of the scheme, since both strands of Project C depended upon its being accepted that the repair services were supplied by the garages to WHA. Secondly, they maintained that if there was indeed a supply of repair services to WHA, its onward supply to Viscount was in any event subject to VAT: if that contention were accepted, it was fatal to the success of the first strand. Thirdly, they maintained that Viscount was not in any event entitled to recover input tax under the UK legislation in question: if that contention were accepted, it was fatal to the success of the second strand. The Commissioners also advanced further arguments based on the alleged artificiality of the scheme, including a contention based on the EU doctrine of abuse of rights.
15. In its decision ([2002] VATTR 202), the tribunal agreed with the Commissioners on all three of their principal contentions, and dealt only briefly with the Commissioners' further arguments. On an appeal to the High Court ([2003] STC 648), Lloyd J disagreed with the tribunal on the first two issues. He held that (1) WHA could treat the VAT payable on the garage bills as input tax, (2) WHA made exempt supplies to Viscount and (3) WHA was therefore entitled to recover its input tax. Having thus accepted that the first strand of Project C was effective, he did not go on to consider the third issue, which was relevant only to the second, fall-back, strand of the scheme.
16. A further appeal to the Court of Appeal was dealt with in two stages. In an interim judgment ([2004] STC 1081), the Court of Appeal agreed with Lloyd J on the first issue: that is to say, it held that there was a supply of services by the garages to WHA. It agreed with the tribunal on the second issue: that is to say, it held that WHA made a taxable supply of services to Viscount, and therefore had to charge output tax. The court therefore had to deal with the third issue. In disagreement with the tribunal, it held that Viscount was entitled to recover the VAT which it had to pay WHA. Those conclusions were however all subject to the Commissioners' further arguments about abuse of rights, consideration of which was deferred until the preliminary rulings of the European Court of Justice on a number of cases concerned with that subject were available. Following the issue of those rulings, the Court of Appeal subsequently gave its final judgment ([2007] STC 1695), in which it held that the scheme was abusive and that the tribunal's decision should therefore be reinstated, albeit for somewhat different reasons.
17. The present appeal is taken against the decision of the Court of Appeal. The parties' positions have altered in some respects since that decision was made. The issues now in contention are as follows:
- Is there a supply of repair services for the purposes of WHA's business by the garages to WHA, as well as or instead of a supply of services to the insured, on which WHA may claim deduction of input tax?
- If the answer to question (1) is yes, what is the application to WHA's claim of the EU law doctrine of abuse of right?
- In any event, was the then extant UK legislation pursuant to which Viscount claimed to recover the input tax charged on the supplies to it by WHA ultra vires? If so, was that legislation void ab initio and does this cause the claim by Viscount for recovery of such input tax to fail?
- Are the Commissioners entitled to raise or rely on the latter issue for the first time before this court or as the sole reason for withholding repayment from Viscount, insofar as (i) Viscount may have had a legitimate expectation that its claim would be met, (ii) the issue was not identified in any of the Commissioners' original decisions, (iii) it was not argued by them before any of the courts below and (iv) the Commissioners have consistently maintained that the tribunal has no jurisdiction to hear or determine public law questions?
The Supreme Court's conclusions
The Supreme Court concluded there was no supply of repair services by the garages to WHA Ltd. Under the contract of insurance NIG undertook to the insured that it would meet the cost of the repair. It did not undertake to repair the vehicle. The cost of the repair is the cover: it is not the consideration for a service provided to the insurer. Neither the interposition of reinsurers, nor WHA Ltd (on the facts in this case) changed that view. WHA did not bear the burden of the VAT paid to the garage; instead it paid the garage out of a float provided by Viscount, and its profit or loss was unaffected by the VAT.
The decision in Aimia, was that the deduction of input VAT is that tax charged only on the value added at each stage in the production and distribution process, which , is ultimately borne only by the final consumer (or by a person who stands in the shoes of the final consumer). In the case of WHA, however, WHA added no value by 'paying the bill' and its inputs and outputs were identical. In addition the contention that the principle of fiscal neutrality requires that WHA should be able to deduct the VAT paid to the garages must be rejected. HMRC had made it clear that they did not maintain that WHA was under any liability to account for output tax in the circumstances considered.
As a consequence of this reasoning, there was no need to consider the other points.
www.bailii.org/uk/cases/UKSC/2013/24.html
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.
