1. GENERAL NEWS
1.1. Finance Act 2012
The Finance Bill completed its House of Lords stages on 16 July and received Royal Assent on 17 July 2012, becoming the Finance Act 2012.
services.parliament.uk/bills/2012-13/financeno4.html
www.legislation.gov.uk/ukpga/2012/14/contents/enacted
1.2.Lifting the Lid on Tax Avoidance Schemes
HMRC has published a consultation document which describes a significant new programme of work the Government is developing to improve the information available to both HMRC and customers about tax avoidance schemes and the risks of using them.
Firstly, it describes a range of options to improve the provision of information about tax avoidance – to ensure that where tax avoidance schemes are identified, the public knows about the risks of using them. That is key to the Government's strategy of ensuring that everyone pays their fair share of tax and in making it clear that tax avoidance is unacceptable.
Secondly, it considers some detailed options to improve the information available to HMRC about tax avoidance through the Disclosure of Tax Avoidance Schemes ('DOTAS') regime, in order to make this an even more effective tool. In particular, it proposes changes to the descriptions of schemes required to be disclosed to HMRC.
Any changes, insofar as they affect income tax, will be extended to the DOTAS National Insurance contributions regime at the same time as the tax changes come into force.
Chapter 2 describes HMRC's anti-avoidance strategy, changes in the tax avoidance environment and the need for the elements of the strategy, including DOTAS, to respond effectively to them.
Chapter 3 describes a range of options to improve the provision of public information about tax avoidance and the risks of using tax avoidance schemes.
Chapter 4 describes options intended to enable DOTAS to ensure that HMRC has sufficient information and documents to understand how a scheme works and who is intended to use it, and to ensure that the rules are complied with. Headline options include:
- Extending the information disclosed to HMRC about discloseable avoidance schemes.
- Extending the information reported to HMRC about users and other parties involved in a discloseable avoidance scheme.
- Raising the threshold of 'reasonable excuse' for a promoter who fails to notify a discloseable scheme.
- Imposing additional reporting obligations on a promoter who incurs a penalty for failure to disclose a scheme.
- Imposing a personal responsibility on an individual, to sit alongside the firm's obligations, to comply with a promoter's DOTAS obligations.
Chapter 5 describes proposed revisions and extensions to the existing 'hallmarks', the descriptions of schemes required to be disclosed under the 'main regime' of income tax, capital gains tax and corporation tax. The proposed revisions to existing hallmarks are:
- Amending the 'confidentiality where promoter involved' hallmark to remove inconsistencies in the interpretations being applied by promoters to the hallmark.
- Amending the 'confidentiality where no promoter involved' hallmark to cover instances where the firm designing the scheme for use in-house is also a promoter who is capable of selling the scheme to clients.
- Amending the 'loss scheme' hallmark to ensure that marketed loss schemes are discloseable, and extending the hallmark (currently limited to schemes intended for individuals) to schemes for corporate users.
It is also proposed to add two new hallmarks:
- A hallmark that targets schemes seeking to circumvent the disguised remuneration rules concerning employment income provided via intermediaries.
- A hallmark targeting schemes that rely upon certain financial products.
www.hmrc.gov.uk/avoidance/tax-avoidance-schemes.pdf
1.3. HMRC appointments
HMRC's new top team has been finalised, with the appointment of three Directors General, and following the recruitment of two Executive Committee members earlier this year.
The new appointments are:
- Jennie Granger, currently Second Commissioner at the Australian Tax Office, appointed as HMRC's new Director General (DG) for Enforcement & Compliance.
- Ruth Owen, currently Work Services Director and Deputy Chief Operating Officer at the Department for Work and Pensions, appointed as DG for Personal Tax.
- Nick Lodge, currently Personal Tax Change Director and HMRC Change Director, appointed as DG for Benefits & Credits for the next 15 months.
Earlier this month, Edward Troup was named as HMRC's Tax Assurance Commissioner, and Jim Harra took over as DG for Business Tax in February 2012.
The creation of the new Executive team has seen two internal promotions, two appointments from elsewhere in the Civil Service and one international recruitment. It means that HMRC's top team now has four members with deep tax knowledge and another with experience of large-scale customer service operations.
Jim Harra is already in post, Nick Lodge will take up his new role in early August, Edward Troup in late August, Ruth Owen will join HMRC in early September and Jennie Granger is expected to be in post by October.
www.hmrc.gov.uk/press/excom.htm
1.4. Consultation on the use of 'transfer of rights' or 'subsales' in connection with SDLT
HMRC has issued a consultation document on the use of 'transfer of rights' and 'subsales'.
HMRC comments as follows: "Over the years a variety of schemes have been designed intending to remove any charge to SDLT on the purchaser of property. The majority of SDLT avoidance schemes for residential property have sought to exploit the transfer of rights rules in one way or another."
The transfer of rights rules were intended to prevent a double charge to SDLT when a person B has entered into a contract to buy land but wishes to pass some or all of that land on to another person C without ever actually taking possession of the land. In the absence of the transfer of rights rules, a double charge could arise if B substantially performs or completes its contract at the same time as the land is conveyed to C.
HMRC considers the provisions may be useful in certain cases including the following examples:
- a contract for a parcel of land is entered into but B only wants part of this land and, before substantial performance of the contract, B enters into an agreement to sell the unwanted part to C;
- B contracts to buy land on behalf of another person C who may at the time not exist (a new charity, for example);
- it is desirable to keep C's identity secret; or
- a person buys land 'off plan' before construction is complete and then is unable or unwilling to take possession (say, because of a deterioration in their finances) but immediately conveys the land to a third person C instead.
There is a request for evidence concerning the above instances, and any other instances where the subsale provisions could be considered a legitimate means of preventing a double charge to SDLT.
The suggestions for reform include:
- Option 1 is to change the transfer of rights rules so that, in
the first instance, they impose a charge on both B and C. A new
relief would be introduced for B which would replicate the benefits
of the rules in many of the situations where they currently prevent
a charge on an intermediary.
The availability of the relief could be restricted to only some types of transfers of rights to restrict the opportunities for avoidance.
The relief would include an anti-avoidance test so that it would not be available if B's acquisition formed part of arrangements whose purpose included the avoidance of tax.
As a further safeguard against abuse, B might be eligible for relief only if it enters the transactions in the course of a bona fide property trade or business. - Option 2 is the same as option 1, but B would then be relieved
from charge on all the consideration it gives for the land then
transferred to C, provided that the anti-avoidance test is passed
and provided that as currently, within section 45(3), substantial
performance or completion of the original contract is at the same
time and in connection with substantial performance or completion
by C.
For clarity it may also be necessary to specify that C's chargeability is not to be reduced by any other provision on account of any connection or other relationship with B (e.g. if C is a partner and B is a partner).
The relief for B would not be available where C is exempt by virtue of the alternative property finance reliefs, as is currently provided in s45(3). C could still be exempt from charge in appropriate cases, as now, if it would be exempt on a direct acquisition from A. - A further possibility considered is making it explicit that FA03 s75A applies to schemes within s45.
- It is recognised that the GAAR could apply, but that due to the time it would take for cases to be considered under the GAAR, the suggestion is that targeted anti-avoidance is needed in any event. Comments and suggestions on the proposals are invited by 9 October 2012.
1.5. Regulations to amend SDLT DOTAS disclosure provisions
Draft regulations have been published that will amend the disclosure regime for SDLT from 24 September 2012.
The first set (regarding the 'Prescribed Descriptions of Arrangements') will amend existing regulations in three ways which will:
- remove the transaction-value thresholds;
- remove the 'grandfathering' rule for certain arrangements involving the 'transfer of rights' legislation;
- update the list of excluded arrangements.
The second set of regulations (regarding 'Specified Proposals or Arrangements') will modify how section 308 of the Finance Act 2004 applies in certain circumstances. This will mean that that if a promoter made a disclosure before April 2010 of certain arrangements involving the 'transfer of rights' legislation, they will have to make one further disclosure if they are still making those arrangements available.
www.hmrc.gov.uk/drafts/sdlt-pd-arrange.pdf
www.hmrc.gov.uk/drafts/sdlt-sp-arrange.pdf
www.hmrc.gov.uk/drafts/changes-sdlt-dtas.htm
1.6. The SDLT (Amendment to the Finance Act 2003) Regulation 2012
SI 2012/1667 amends paragraph 10 of Schedule 17A to the Finance Act 2003 (c. 14), which lists tenant's obligations etc that do not count as chargeable consideration. This amendment follows the repeal of Council Regulation (EC) No 1782/2003 and its substitution by Council Regulation (EC) No 73/2009 on 19th January 2009.
www.legislation.gov.uk/uksi/2012/1667/pdfs/uksi_20121667_en.pdf
1.7. Authorisation for an adviser to handle a compliance check
HMRC now recognises that a taxpayer may want a specialist adviser to deal with the compliance check without upsetting an existing general agent authority or for that aspect of their tax affairs only.
In these circumstances, the form 'Comp1 Temporary authorisation' can be completed. Using this form should help to make sure that other HMRC records are not updated incorrectly to cancel an existing authorisation, or to show a temporary adviser as a permanent one.
The completed form should be sent to the HMRC officer dealing with the compliance check.
Only HMRC staff dealing with the compliance check will be aware of this authorisation. Staff from other parts of HMRC will not be able to discuss the tax matters of the customer or share information with the adviser. If an adviser needs to deal with other parts of HMRC about the compliance check, they should contact the HMRC officer dealing with the check.
www.hmrc.gov.uk/forms/Comp1.pdf
2. PRIVATE CLIENTS
2.1. LDF update: Liechtenstein re-classify 'Meaningful relationship'
From the 1st September 2012, clients wishing to take advantage of the beneficial terms of the Liechtenstein Disclosure Facility (LDF) will have to invest more in Liechtenstein in order to convince the Liechtenstein Financial Intermediary (FI) that there is a 'Meaningful relationship', so that in turn the FI issues a Certificate of Relevance to enable participation in the LDF.
Previously a range of options were available whereby an investment of £10,000 or less was sufficient with some FIs to determine a 'Meaningful relationship' and funds were often repatriated to the UK after the LDF process was completed. However, on 10 July 2012 the Liechtenstein Government issued an amendment to the UK TIEA Ordinance with reference to 'A Meaningful Relationship'.
New thresholds have been agreed to establish the 'Materiality of a Business Relationship'. These include:
- In the case of Banks – a lodgement of at least 20% of undisclosed, worldwide bankable assets or CHF 3 million. It is expected that this sum remains with the Bank for at least 24 months.
- In the case of a Trust Company – at least 10% of undisclosed, worldwide bankable assets or CHF 1 million.
- In the case of a Legal Entity domiciled abroad but managed in Liechtenstein – at least 15% of undisclosed, worldwide bankable assets or CHF 1 million.
- In the case of an Insurance Company in Liechtenstein – a policy with a minimum premium of CHF 150,000.
The purpose of this is to enable new long term relationships to be established with the Liechtenstein Financial Centre.
This is not an unreasonable step by Liechtenstein and it has been expected for some time in order to fulfil the requirements of the current rules whereby a substantial part of the undisclosed assets are invested in Liechtenstein, there should be personal contact between the client and the FI and the relationship is long term.
Those with issues to disclose who do not wish to be bound by the new conditions above need to act before 31 August 2012. The LDF is, and is likely to remain, the most favourable disclosure facility available to those with a UK tax issue who have held an offshore asset as at 1 September 2009.
3. PAYE AND EMPLOYMENT MATTERS
3.1. HMRC video on real time information
HMRC has made available a video to help introduce employers to the implications of real time information.
3.2. Employment-related Securities Bulletin
HMRC has issued Employment-related Securities Bulletin number 2. Amongst other news included in the bulletin are the following points:
- It is acceptable for ITEPA s431 elections to be made electronically and with electronic signatures. However they must still be made within the correct time period and using the required text. In addition employees need to be made aware of the consequences of entering into such an election.
- In relation to market value, it is now acceptable to define the market value of a listed share as the opening price on the specified market on the relevant day – normally, the dealing day immediately preceding the day in question – instead of using the mid-market price or closing price. HMRC's practice in relation to market value is otherwise unchanged. ESSUM29395 will be amended as soon as possible.
www.hmrc.gov.uk/shareschemes/ess-bulletin2.pdf
3.3. Students and PAYE
HMRC has confirmed that it will withdraw the special PAYE system for students who work in the holidays (Form P38(S)) once real time information begins in April 2013. Students will then be treated in the same way as any other employee for PAYE purposes.
www.hmrc.gov.uk/paye/employees/start-leave/special/students.htm
4. BUSINESS TAX
4.1. Decommissioning relief
At Budget 2012, the Government announced a package of measures on oil and gas taxation to support investment. This package includes the introduction of legislation in 2013 giving the Government statutory authority to sign contracts with companies operating in the UK and UK Continental Shelf (UKCS), to provide assurance on the tax relief they will receive when decommissioning assets.
A perceived lack of certainty over how much decommissioning tax relief companies may be able to claim in future is currently making it difficult for oil and gas assets to change hands, limiting the funds available for new ventures, and deterring incremental investment. The Government has published a consultation which proposes a contractual approach to address these issues, facilitating ongoing investment and production in the UK Continental Shelf and increasing Exchequer benefits.
This document sets out proposals to provide certainty on decommissioning relief through a Decommissioning Relief Deed ('the Deed'). The consultation closes on 1 October 2012.
www.hm-treasury.gov.uk/consult_decommissioning_relief_deeds.htm
4.2. Review of government policy for films
The Government has responded to an independent panel review into film policy. The Government has already begun to implement the panel's recommendations including better collaboration between industry bodies in funding and promotion and offering tax reliefs to investors to boost film industry growth.
www.official-documents.gov.uk/document/cm83/8355/8355.pdf
4.3. Environmentally beneficial plant and machinery
Section 45H enables the Treasury to specify qualifying plant and machinery by Order by reference to a description or criteria given by the Secretary of State in a technology or product list. The Secretary of State for the Environment, Food and Rural Affairs has issued the Water Technology Criteria List and the Water Technology Product List. These lists have been revised and replaced by new lists issued on 5th July 2012. This Order amends the principal Order to reflect the new lists.
The Water Technology Criteria List and the Water Technology Product List are available at;
These new lists update the qualifying criteria for four existing technologies:
- toilets;
- showers;
- taps; and
- industrial washing machines.
www.legislation.gov.uk/uksi/2012/1838/pdfs/uksi_20121838_en.pdf
4.4. Energy efficient plant and machinery
Section 45A of the Capital Allowances Act 2001 (c.2) defines energy saving plant or machinery and provides for the plant or machinery to be specified in an Order made by the Treasury which can refer to any technology list, or product list, issued by the Secretary of State. Accordingly, the Secretary of State for the Department of Energy and Climate Change has issued the Energy Technology Criteria List and the Energy Technology Product List. These lists have been revised and replaced by new lists issued on 5th July 2012. This Order amends the principal Order to reflect the new lists.
The Energy Technology Criteria List and the Energy Technology Product List are available on the Department of Energy and Climate Change's website at www.decc.gov.uk.
The new list adds a new sub-technology (heat pump driven air curtains) to the existing heat pump technology and removes three sub-technologies (combustion trim controls, energy saving controls for desiccant air dryers and sequence controls).
They also update the qualifying criteria for 11 existing technologies/subtechnologies including:
- close control air conditioning equipment;
- curtains, blinds, covers and doors for refrigerated display cabinets;
- component based AMT;
- gas fired condensing water heaters;
- heating, ventilation and air conditioning (HVAC) zone controls;
- single speed AC induction motors;
- packaged chillers;
- radiant heating equipment;
- refrigeration compressors;
- warm air heating equipment; and
- uninterruptible power supplies.
www.legislation.gov.uk/uksi/2012/1832/pdfs/uksi_20121832_en.pdf
4.5. Foreign currency assets and chargeable gains
The Government announced at Budget 2012 that it would consult on whether there was scope for further simplification of the chargeable gains rules by considering whether or not companies with a non-sterling functional currency should continue to be required to compute their chargeable gains and allowable losses in sterling.
HMRC has now published the consultation document which proposes that companies should use their 'functional currency', defined in FRS 23 as the 'currency of the primary economic environment in which the entity operates'. The consultation closes on 15 October 2012.
5. VAT
5.1. Exempt or taxable status of a transfer of shares in company holding real estate
Tax Update of 18 July 2011 discussed a reference by the Netherlands to the CJEU concerning the VAT treatment of services in connection with a transaction for shares in a company holding real estate. Also mentioned was a First Tier Tribunal case of Joiner Cummings [2010] UKFTT 606 (TC) TC00847) concerning services provided in connection with Land Securities' acquisition of a property interest held through a Jersey Property Unit Trust. The First Tier Tribunal held that the services were VAT exempt on the basis that they were provided in connection with the transfer of units in a unit trust.
The CJEU has now considered the Dutch case (C-259/11, DTZ Zadelhoff vof v Staatssecretaris van Financiën). This concerned an instruction to DTZ by the Swedish corporate owner of the shares of a Dutch company holding a property (the world fashion centre in Amsterdam), to find a buyer for that property. There was no discussion as to whether the legal ownership of the complex or the ownership of the shares in the Dutch company was to be transferred. The owner intended to transfer ownership of the property by transferring the shares in the Dutch company. The value of the company was represented entirely by the value of the real estate it owned. A buyer was found and DTZ treated its services (the fee for finding the buyer) as VAT exempt.
The CJEU confirmed that the VAT exemption for negotiations in shares applied in this instance (old sixth directive article 13B (d), now in Directive 2006/112 article 135(f)). That exemption applied notwithstanding the exclusion from exemption of rights in securities to which sixth directive article 5(3) (c) applied. That article is now at Directive 2006/112 article 15(2)(c) and provides (subject to direction of each member state) that shares or interests equivalent to shares giving the holder rights of ownership or possession over immovable property (or parts of immovable property) can be regarded as tangible property. However as the Netherlands had not enacted this provision, it could not apply this definition to exclude the transfer of the shares in question from VAT exemption. The UK has not implemented what is now article 15(2)(c), so the decision of the CJEU supports the decision reached in the First Tier Tribunal in the case of Joiner Cummings.
5.2. Consultation on reduced VAT rate for small cable suspended transport systems
A consultation has been published for comment by 17 October on how the new reduced VAT rate for small cable suspended transport systems should be implemented.
5.3. CJEU decision in Deutsche Bank
On 19 July the Court of Justice of the European Union (CJEU) released its decision in the case of Deutsche Bank (C-44/711), confirming as expected that a discretionary portfolio management service did not qualify for VAT exemption. More controversially, however, the Court also ruled that charges for the purchase and sale of securities under such a contract could not be separated from the advisory element and that the whole service should be regarded as a single, taxable supply.
Deutsche Bank provided discretionary portfolio management services and charged a fee which it split between two elements, asset management and buying and selling securities. The Court confirmed that it was not possible to regard one service as being ancillary to the other. Rather, they were so closely linked that they constitute a single economic supply.
A portfolio management activity such as that carried out by Deutsche Bank in the main proceedings consists of a number of elements. Having regard to all the circumstances in which that portfolio management service takes place, it is apparent that the service basically consists of a combination of a service of analysing and monitoring the assets of client investors, on the one hand, and of a service of actually purchasing and selling securities on the other.
Those two elements of the portfolio management service may be provided separately. A client investor may wish only for an advisory service and prefer to decide on and make the investments himself. Conversely, a client investor who prefers to take the decisions on investments in securities and, more generally, to structure and monitor his assets himself, without making purchases or sales, may call on an intermediary for the latter type of transaction. To decide on the best approach to the purchase, sale or retention of securities would be pointless for investors within the context of a portfolio management service if no effect were given to that approach. Likewise, to make – or not, as the case may be – sales and purchases without expertise and without a prior analysis of the market would also be pointless. In the context of the Deutsche Bank services, it was held that the advisory and execution service provided together was a single supply for VAT purposes and not divisible.
Only the element of buying and selling securities could potentially be covered by the VAT exemption for transactions in securities. However, as exemptions need to be interpreted strictly, this was not sufficient for the services provided by Deutsche Bank to be exempt under this provision.
The Court upheld the Advocate General's analysis that asset management is generally taxable, as otherwise there would have been no need to introduce the clause exempting such services when provided to 'special investment funds'.
The court also confirmed that this interpretation did not conflict with the principle of fiscal neutrality: fiscal neutrality is an aid to interpretation and cannot be invoked so as to extend the scope of an exemption beyond the clear wording in the Directive.
The Court has held that a discretionary portfolio management service must be seen as a single supply for VAT purposes, so that all charges for the service – including any transaction charges - must be subject to VAT at the standard rate. This is not how such arrangements have been treated in the UK to date and we expect HMRC to announce a review of their policy fairly soon.
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.
