1. GENERAL NEWS
1.1. The future relationship between tax agents and HMRC
HMRC has issued a consultation paper regarding the practical implementation of its strategy for engaging with tax agents in the future.
There is currently a lack of definition regarding the status of a tax agent and this came to the fore in the recent judicial review case of Christopher Lunn which followed HMRC's decision to prevent the agent from filing clients' tax returns electronically.
The HMRC Charter recognises that taxpayers have the right to appoint an agent, but there is no 'one size fits all' arrangement and agents range from the Big 4 accountancy firms to one man bands.
HMRC has dramatically changed the way that it deals with most taxpayers over the past decade. Whilst it now has specialist offices that deal with large corporates and a relatively small number of HNW individuals, it now relies on a call centre service for the vast majority of taxpayers who do not fit into either of those categories. The consultation paper recognises that there have been myriad complaints that those changes have been accompanied by poor levels of customer service.
A number of other countries regulate their tax agent community.
The paper proposes two main areas for development:
- Self authorisation (the ability to notify HMRC that agent A is acting for client B without the need for HMRC to receive a signed authority). The authority would be retained by the agent for inspection in the same way as copies of signed Self Assessment returns are retained.
- Ability to generate and amend notices of coding and manage end of year reconciliation for those outside of Self Assessment.
- The facility to see payments and liabilities, across all heads of duty, for a single client in one presentation of the information.
- Online education modules to augment professional training on legislation changes and processes.
- Track and trace facilities for paper repayment claims and correspondence.
- The ability to lodge correspondence and returns/forms that are
not fully online via an electronic work area.
- Targeting support to those agents that need it
The research undertaken by HMRC illustrates how wide the agent community is, with a spectrum that ranges from global accountancy firms to unpaid volunteers. The consultation suggests that HMRC should concentrate on the "paid professionals". The plan is to use the statistical information available regarding the compliance performance of each agent's client base to identify firstly those agents who may need more support and secondly those agents whose behaviour was such that HMRC might decide to deregister them.
In theory this is a common-sense move that should produce a 'win, win' result for HMRC, the wider agent community and their clients.
As always the devil will be in the detail and it will be necessary to build in sufficient checks and balances that prevented an angry Inspector from deregistering an agent that he had taken a dislike to. It is to be hoped that any process for debarring agents would be administered by an independent body.
No matter how often agents complain that dealing with HMRC is not like dealing with the old local Tax Office ten years ago, the reality is that we are never going to return to that system of face to face personal service for the majority of taxpayers. Consequently a root and branch reassessment is required of how to improve customer service making better use of the existing system and resources.
It appears that HMRC has no appetite for acting as regulator for the tax agent profession, but nonetheless it sees the need to tighten up on those agents that it considers not to be doing the job properly.
2. PRIVATE CLIENTS
2.1. Individual spending more than 183 days in UK claiming compassionate grounds
In the case of Nicholas Ogden (TC01077) the First Tier Tribunal dismissed the taxpayer's appeal against the 2002/3 assessment.
Mr Ogden has been resident in Jersey since 1988. In early 2002 his son was admitted to Papworth Hospital in Cambridge for a heart and lung transplant which was the only option for his survival.
Mr Ogden was employed by WorldPay, which he had created, through its Jersey company and did not have any UK bank accounts. In 2001 RBS launched a hostile takeover bid to acquire WorldPay which the board was forced to accept in early 2002.
In August 2002 Mr Ogden took leave from WorldPay to be with his son at the hospital. In order to ascertain his tax position he telephoned the Cambridge tax office and was told that if he did not exceed ninety working days whilst in Cambridge his other days would fall under a compassionate visit dispensation.
His son died on 13 October 2002 and when Mr Ogden returned to work he was fired from his job for no apparent reason. RBS insisted that 22% was to be withheld from the payment although they had no legal right under the termination agreement to do so and the agreement stated that Mr Ogden was to be responsible for any tax that should be due.
HMRC opened an enquiry into the 2002/3 tax return based on the information provided to them by RBS. The tax return submitted showed Mr Ogden as resident but not ordinarily resident in the UK.
As Mr Ogden had spent more than 183 days in the UK, HMRC reached the conclusion that the Appellant was resident and ordinarily resident in the UK for the tax year ended 5 April 2003 and amended his tax return to include all the income he had received during the year including his termination payment.
Mr Ogden's agent appealed on the basis that the termination payment was in respect of the whole of Mr Ogden's service with WorldPay and therefore related partly to duties performed in Jersey and should be apportioned accordingly.
HMRC response was that for the year in question Mr Ogden was paid £772,707 (including the salary paid in lieu of notice, which was in its opinion contractual) in respect of his duties as a director of WorldPay. The duties were for the year in question when he was resident in the UK. As there were no overseas duties in that year the payment must have been in respect of duties performed in the UK and as he was an executive director of the company the duties could not be regarded as incidental duties. Section 336 of the Income and Corporation Act 1988 ("ICTA") states:
Temporary residents in the United Kingdom
- A person shall not be charged to income tax under Schedule D as a person residing in the United Kingdom, in respect of profits or gains received in respect of possessions or securities out of the United Kingdom, if—
- he is in the United Kingdom for some temporary purpose only and not with any view or intent of establishing his residence there, and
- he has not actually resided in the United Kingdom at one time or several times for a period equal in the whole to six months in any year of assessment, but if any such person resides in the United Kingdom for such a period he shall be so chargeable for that year.
- For the purposes of Cases I, II and III of Schedule E, a person who is in the United Kingdom for some temporary purpose only and not with the intention of establishing his residence there shall not be treated as resident in the United Kingdom if he has not in the aggregate spent at least six months in the United Kingdom in the year of assessment, but shall be treated as resident there if he has.
Section 19 of ICTA states that tax under Schedule E shall be charged in respect of any office or employment on emoluments therefrom which fall under one or more of the following cases:
"Case 1 - any emoluments for any year of assessment in which the person holding the office or employment is resident and ordinarily resident in the United Kingdom, subject however to section 192 if the emoluments are foreign emoluments (within the meaning of that section) and to section 193 (1) if in the year of assessment concerned he performs the duties of the office wholly or partly outside the United Kingdom."
Leaflet IR 20 produced by HMRC stated at paragraph 1.2:
"You will always be resident if you are here for 183 days or more in the tax year. There are no exceptions to this."
Mr Ogden argued that exceptional circumstances applied in his case. The sole reason for him having breached the 183 days in the UK rule in the tax year ending 5 April 2003 was due to the ill health of his son. He did not understand why days spent in the UK for exceptional circumstances including compassionate grounds were taken into account in considering the 91 day rule but there was no such provision in respect of the 183 day rule.
HMRC submitted that the wording of Section 336 of ICTA however was clear and was mandatory. Whilst they had every sympathy with Mr Ogden the fact remained that he was in the UK for more than 183 days for the tax year ending 5 April 2003 and therefore the law deemed that he was resident in the UK for tax purposes.
The Tribunal found the Appellant was resident and ordinarily resident in the tax year ending 5 April 2003 and it was not possible to consider him resident but not ordinarily resident in the UK for that year as there were no duties performed outside the UK in that year. The Foreign Service Exception could not apply to the termination payment which was charged under Section 19 ICTA and not Section 148 ICTA.
3. BUSINESS TAX
3.1. IR35 Forum
An IR35 Forum has been established to make improvements in the way IR35 is administered. This was established following the Government's announcement at Budget 2011 that it was committed to making clear improvements in the way IR35 is administered following publication of the Office of Tax Simplification's (OTS) review of Small Business Tax.
The role of the IR35 Forum includes providing advice on improvements in the administration of IR35, and in a transparent manner to assist HMRC in identifying specific areas for improvement in the administration of IR35.
- Terms of reference: www.hmrc.gov.uk/consultations/ir35forum-tor.htm
- Minutes: www.hmrc.gov.uk/consultations/ir35forum-minutes.htm
- Members of the Forum: www.hmrc.gov.uk/consultations/ir35forum-members.htm
3.2. Capital Allowance consultations
HMRC issued three capital allowance consultations on 31 May 2011 on the following topics:
- Tightening of procedures around claiming allowances on fixtures.
- Changes to anti-avoidance rules for plant or machinery in CAA01 part 2 chapter 17.
- Reform of capital allowance on P&M that can also qualify for feed in tariffs (FITs) and renewable heat incentives (RHIs).
The consultations run until 31 August and the intention is that draft legislation for (a) and (b) will then be published for scrutiny and proposed inclusion in Finance Bill 2012. The intention for consultation (c) is that any changes will take effect for expenditure incurred on or after 1 April 2012 for companies and 6 April 2012 for unincorporated businesses.
Considering the proposed changes noted below, businesses should be reviewing as a matter of urgency procedures to ensure that adequate capital allowance claims on fixtures are made before any claims become time-barred by reference to date of purchase. Those businesses with interests in plant or machinery associated with feed in tariffs and renewable heat incentives should also consider whether they have made all appropriate AIA, ECA and general plant or machinery pool claims before April 2012.
The Government is concerned that the current process of settling the amount of expenditure on fixtures qualifying for capital allowances on a transaction involving buildings can be difficult for taxpayers and HMRC to track. While there are procedures permitting purchaser and vendor to elect to determine a tax value and a Tribunal procedure to determine an apportionment of market value, provided the business continues and the asset is owned and used in the business by the claimant, there is no time limit for claiming the allowances.
In a situation where the purchaser determines a capital allowance value for fixtures plant or machinery some years after original purchase, and no election has been made to agree the value between vendor and purchaser, there is a risk that the agreed figure could be higher than the disposal value accounted for in the vendor's tax computation. This becomes problematic for HMRC where the vendor has finalised their tax return for the period of the disposal, no longer exists or has gone into liquidation. It can also be problematic for HMRC seeking to verify that the value now claimed by the purchaser is a valid amount and not in excess of the purchaser's original cost.
The Government's proposal to improve matters and reduce exchequer risk is to:
- Introduce a time limit for claiming capital allowances on fixtures. The time limit suggested is either one or two years from the date of acquisition. With respect to historic expenditure (i.e. fixtures expenditure already incurred at the date of change, but for which a claim for capital allowances has yet to be made) the Government is considering a transitional period of one or two years from the date of change of legislation for making any claims;
- Formalise the tax aspects of fixtures on a property transaction so that in order to claim any available allowances there must always be a formal agreement on the attributable market value between purchaser and vendor. The proposal is that this will work in a similar way to a CAA01 s198 or s199 election with a deadline of two years from acquisition.
These measures seem sensible for formalising capital allowance tax procedures on a property transaction, though a two year deadline for claiming allowances would be preferable to a one year time limit.
Further consideration is given to reforming the s198 and s199 procedures for vendor and purchaser to determine a tax value for fixtures. There is concern that vendors are obtaining allowances when they no longer hold an asset and may be able to accelerate the obtaining of that deduction. Two options are considered for reform:
To limit the minimum value that can be agreed under a s198 or s199 election to the vendor's tax written down value; or
To refine the anti-avoidance in s197 so that it would be triggered in all circumstances where allowances on fixtures were accelerated by a balancing allowance.
Although no draft legislation has been put forward, the proposed refinement to s197 would seem preferable to a limit on the minimum tax value that can be agreed between vendor and purchaser. Indeed the text of the proposed refinement to s197 only appears to limit arrangements where an event resulting in a balancing allowance is triggered, so that it would remain possible for the vendor to retain the balance in the pool after disposal with the result that allowances continue to be taken according to the pool writing down allowance rate.
(b) Changes to chapter 17 anti-avoidance rules for plant or machinery
CAA01 part 2 Chapter 17 applies to sale, hire purchase or similar contracts, and assignments of hire purchase or similar contracts. It can apply where there is such a transaction between connected parties, or it is undertaken with the sole or main object of obtaining allowances, or under sale and leaseback arrangements.
To tighten this anti-avoidance four changes are proposed:
- The 'sole or main benefit' test is to be replaced with a condition where the obtaining of the allowance appears to be the main or one of the main purposes of any person being a party to the arrangements. It is felt the 'sole or main' benefit condition does not catch transactions which also have a commercial benefit, as it is impossible to ignore the commercial benefit.
- HMRC is concerned that some taxpayers consider 'assignment' of hire purchase transactions does not cover 'novation' and similar ways of transferring the benefit of a contract. To put the matter beyond doubt their proposal is to amend this to include all transactions where the person (B in CAA01 s213(c)) is able to benefit from a contract where the other person (S in CAA01 s213(c)) shall or may become the owner of the plant or machinery on performance of the contract.
- The current legislation includes 'market value' as one of the options for determining the qualifying expenditure on which allowances are available (s218 (3)). It is thought that this could be manipulated so that allowances are obtained on the market value of plant or machinery, while the commercial value transferred has been reduced through the use of arrangements such as a lease and the sale of the resulting income stream. The proposed amendment is to adjust market value by requiring leases and other encumbrances affecting the asset to be taken into account.
- There is an exception from the application of CAA01 s217, s218 and s225 for manufacturers and suppliers of plant or machinery (see s230). The proposal is to revoke s230 to protect the exchequer and level the playing field for suppliers in this area.
(c) Reform of allowance on P&M that can also qualify for feed in tariffs (FITs) and renewable heat incentives (RHIs)
Feed in tariffs (FITs) and Renewable Heat Incentives (RHI's) have and are being introduced to stimulate the use of small scale low carbon energy generation and heat generation from renewable sources. Tariff support levels for both schemes are designed to provide an attractive rate of return to investors.
Currently capital allowances at the rate of 100% may be available for business expenditure on equipment used for FIT and RHI projects, through qualifying for enhanced capital allowances or annual investment allowances. Also it is not always clear whether qualifying expenditure on plant or machinery for FIT and RHI projects qualifies for the general or special rate pool for capital allowance purposes.
The consultation document indicates the Government intended the FIT and RHI tariff levels should be set at rates providing incentive for investment, without the assumption that extra tax writing down allowances could be available through the 100% write offs or general pool rates of allowances. The proposals are therefore that expenditure incurred on or after 1 April or 6 April 2012, in respect of qualifying expenditure on plant or machinery for a FIT or RHI project will not attract enhanced capital allowance rates and will be 'special rate' expenditure (thus attracting an 8% annual writing down allowance rate and being unavailable for the annual investment allowance).
3.3. High Risk Tax Avoidance Schemes
On 31 May HMRC issued a consultation proposing refinements to the way certain tax avoidance arrangements are handled. The target is aggressive highly contrived tax avoidance schemes which HMRC do not believe work (viewed by HMRC as high risk). The proposals are:
- To provide HMRC the power to 'list' particular avoidance schemes in a similar way to the current VAT scheme lists that affect businesses with turnover of £600k or more. Any new listing would be subject to affirmative resolution by parliament, and would cover schemes relating to income tax, CGT, corporation tax, SDLT, IHT, VAT and NIC. The intention is that the description of each listed scheme would be sufficiently narrow to only catch what HMRC perceive as 'high risk' schemes;
- A requirement for users of 'listed' schemes to report the listed scheme number (LSN) of the scheme they have used, either when the tax return is submitted (or where no return is allegedly required, on a separate form to HMRC's Anti Avoidance Group), or within a period of time after implementation;
- The imposition of a penalty in the case of non-disclosure of use of a listed scheme. This would be subject to reasonable excuse and HMRC's preference is for a fixed penalty rather than a tax geared penalty;
- An additional charge where the taxpayer opts not to pay the tax in dispute with respect to the listed scheme by the normal due date. This is intended to ensure that users are not unfairly advantaged by the cashflow benefit of not having to pay tax upfront on a scheme which ultimately does not work, compared to those who do not use the scheme. It would be payable when the tax is finally confirmed as due.
HMRC indicate their current thinking is that LSNs would operate separately from scheme reference numbers (SRN's) under the DOTAS regime. They foresee that listed schemes may not be disclosable under DOTAS when marketed (and thus have no SRN), and HMRC may not be able to match a listed scheme with a scheme disclosed under DOTAS. In addition to responses on the main proposals, there is a request for ideas on how to avoid the taxpayer having to disclose both an SRN and an LSN. If HMRC foresee difficulty in linking SRNs to LSNs it is likely that taxpayers will have the same problem.
If HMRC views listed schemes as the greater problem (as for HMRC to list a scheme they must have received independent legal advice that the scheme does not work), then there must presumably be a greater need to learn of their use. Therefore one possibility might be to require the disclosure of an LSN where there is no corresponding SRN, and if there is no LSN, but an SRN, the SRN must be disclosed. If there is both an SRN and an LSN in relation to a scheme, both HMRC and the taxpayer should be aware of the link, and there is already an obligation to disclose use under the DOTAS regime. Thus whether the SRN or LSN should be disclosed would seem to be an internal matter for HMRC as to how they envisage collating information from their database systems. However there would seem to be little point in requiring disclosure of both the LSN and the SRN.
Following responses to the consultation, draft legislation is expected to be issued when Finance Bill 2012 is published in draft. Also included in this consultation (and on HMT's list of forthcoming consultations) is a note that in June HMRC will be undertaking an informal consultation on proposals for extending the DOTAS 'hallmarked' arrangements.
4. TAX PUBLICATIONS
Investing in smaller businesses can often be viewed as risky. But there can be significant tax incentives for investing in some companies, which help to mitigate economic risk. For those companies looking for alternatives to bank funding, the Enterprise Investment Scheme (EIS) and venture capital trusts (VCTs) are options well worth exploring. In relation to the EIS, tax relief is potentially available to owner-managers of businesses, as well as outside investors.
In this guide we examine the EIS and funding from VCTs, which can be an important source of financial support for smaller businesses.