1.1 Scottish rate of income tax – further guidance
HMRC has issued technical guidance on who will be a Scottish taxpayer and some guidance for employers and pension providers.
The technical guidance on who, from 6 April 2016, will be a Scottish taxpayer includes guidance on an individual's 'place of residence', 'main place of residence', tests for Scottish taxpayer status and evidence used to establish someone's status. This replaces the draft guidance issued in June.
HMRC has also released guidance for employers and pension providers explaining how the introduction of the Scottish rate of Income Tax will affect them. HMRC will identify who will be a Scottish taxpayer meaning that employers and pension providers don't need to decide this and should only use a Scottish tax code if HMRC tell them to.
It explains how the new employee take-on procedures will work. Under these, new employees without a P45 will have the rest of UK (rUK) emergency code applied and HMRC will subsequently issue the correct code. Employees with a P45 should have that code used from the start, whether a Scottish code or a rUK code.
1.2 Guidance for charities updated
HMRC has updated the guidance notes that outline how the tax system operates for charities.
It has also updated the templates that can be used by charities when communicating with individuals when selling donated goods on their behalf.
These explicitly state 'If you have not paid sufficient income tax or Capital Gains Tax to cover your donations, you may need to pay the shortfall of tax to HM Revenue and Customs.' It seems that HMRC intend to pursue non-taxpayers who have inadvertently signed gift aid declarations.
2. PRIVATE CLIENT
2.1 Spotlight 27 interest relief avoidance schemes
HMRC has issued Spotlight 27 on interest avoidance schemes which seek to exploit the relief available for interest on loans taken out to invest in trading partnerships. The note highlights a First tier Tribunal decision in HMRC's favour concerning the Brain Disorders Research Limited Partnership case.
2.2 Pre-population of self assessment online returns - pay, tax and P11D details
HMRC's Agent Update 50 has confirmed that HMRC's work on pre-populating pay, tax and P11D details onto HMRC versions of online tax returns will start soon; associated work with commercial software suppliers will follow after April 2016. But in the meantime, as most agents use commercial software to file their client's tax return, HMRC is expanding the information available through an agent's log in to their clients' HMRC accounts to include these additional employment income details, so this can be used to check data for or complete third party software returns.
The following information is already available:
- designatory details;
- underpayments (and potential underpayments) coded out;
- small debts coded out;
- state pension;
- student loan indicator; and
- local authority - where a person is claiming blind person's allowance.
A new option will shortly be added that links to pay, tax and P11D details.
3. BUSINESS TAX
3.1 Office of Tax Simplification (OTS) reviews
The OTS has published key questions to aid those responding to its review of small company taxation and its review of the closer alignment of income tax and national insurance contributions (NIC).
Review of small company tax – key questions
The review is aimed at any company with fewer than 10 persons. The key questions are listed under seven headings. Included within the list is a request for feedback on whether such companies should have the option of 'look through' treatment for tax purposes.
Key questions on closer alignment of income tax and NIC
The key questions are listed under ten headings. Included within the list is a request for input on whether applying the same treatment for employed and self-employed individuals would be a simplification and how this might be achieved.
3.2 Tax deductibility of interest – restrictions where group interest over £1m
Following the OECD's BEPS reports, HMRC has issued a consultation on restricting the ability to deduct interest for tax purposes. It proposes to exclude groups with net UK interest expense of no more than £1m, which will leave out most companies by number. The introduction of any change to the UK tax treatment of interest deductions would be unlikely before 1 April 2017. Responses to the consultation are requested by 14 January 2016.
The OECD BEPS report under action 4 recommended tax deductions for interest be limited to between 10% and 30% of EBITDA, with the option of an alternative permissible deduction equivalent to the group's net interest expense/EBITDA ratio. There were also suggestions for certain carve outs from the application of the restriction, for example a de minimis limit and the exclusion of public benefit projects.
To reduce the impact of volatility there are also suggestions for carry forward and/or carry back of disallowed interest expense and unused interest capacity, together with targeted rules and also separate provisions for the banking and insurance sector.
HMRC proposes the application of a de minimis limit to exclude groups with net UK interest expense of £1m or less. For those above this limit the allowable interest would be restricted to the higher of:
- the product of the interest expense times the appropriate ratio; and
- the de minimis limit.
A further suggestion is that interest restriction might not apply to those companies which meet the EU definition of an SME.
It is recognised that the OECD will be undertaking further work in 2016 on how interest restriction should apply to the banking and insurance sectors and that the UK will be taking part in that work.
Should the OECD recommendations be introduced in the UK, the world wide debt cap provisions would need to be either repealed or adapted.
3.3 Deferred tax - date of substantive enactment of summer 2015 Finance Bill
Summer Finance Bill 2015 had its report stage and third readings in the House of Commons on 26 October 2015. This means it is substantively enacted for tax purposes, with the result that its tax rate changes will need to be factored into deferred tax calculations.
This will mean the following new corporation tax rates will be relevant to deferred tax computations:
- 19% applicable from 1 April 2017;
- 18% applicable from 1 April 2020;
- 45% applicable to restitutionary interest determined on or after 21 October 2015 as final by the Courts or by agreement between HMRC and the taxpayer company. See last weeks' Update for more details.
3.4 Further amendments to summer 2015 Finance Bill
Further amendments have been included in summer 2015 Finance Bill, some of which are noted below.
EIS and VCT
The amendments correct technical flaws, provide clarification and ensure alignment with State aid approval, and cover:
- older companies receiving their first risk finance investment under the 50% turnover test;
- the provision of information and share exchanges;
- funding limits in relation to subsidiaries;
- powers to amend the EIS and VCT rules;
- liquidity management for VCTs; and
- other minor technical changes.
In addition, in response to a significant increase in the use of the schemes to fund energy generation, the government has decided to introduce an amendment to exclude activities that involve the provision of reserve power capacity and generation, for example under a Capacity Market agreement or Short Term Operating Reserve contract. This change will apply to investments made on or after 30 November 2015.
The government intends to introduce increased flexibility for replacement capital in due course through secondary legislation, subject to State aid approval.
Carried interest and disguised investment manager fees
A number of technical amendments are made to the draft legislation taxing certain carried interest arrangements on the economic gain, to ensure it operates as intended, including:
- the disguised investment manager fee provisions are amended to permit income tax paid by another person on the allocated income to be taken into account in assessing such income of an investment manager; and
- a new clause ensures that sums arising to a fund manager as investment management fees or carried interest cannot be sheltered from tax through arrangements that have the effect that the amounts arise to other persons.
Banking companies surcharge
Summer 2015 Finance Bill introduces an 8% surcharge on the profits of a banking company that earns profit in excess of a surcharge allowance of £25m. The definition of a banking company for this purpose refers to CTA 2010 s.269B, introduced along with the limit relief for pre 2015 carried forward losses and non- trade deficits.
Amendments to the drafted provisions provide:
- that capital gains arising in non-banking companies are not subject to the surcharge because of the way the capital gains rules treat transfers of assets between group companies;
- that the surcharge does not reduce the value of R&D relief where the expenditure is incurred by a banking company;
- an exclusion from the surcharge for asset management companies that have an ancillary deposit taking business and for other companies where accepting deposits represents a small part of their balance sheet and they are the only company in the UK group which accepts deposits; and
- a tightening of anti-avoidance concerning the use of controlled foreign companies within groups targeted by the surcharge.
Quarterly instalment payments (QIPs) of tax
SI 2014/2409 amends the regulations on QIPs (SI 1998/3175) to take account of the removal of the associated company rules for determining the small company limits for marginal relief from the main rate of corporation tax for accounting periods beginning after 1 April 2015. SI 2014/2409 was originally drafted to be effective for accounting periods commencing on or after 1 April 2015. It is amended to apply for accounting periods ending on or after 1 April 2015, and for the whole of accounting periods that straddle that date.
3.5 Making R&D tax relief easier for small businesses
HMRC has published its response to the January 2015 consultation on improving the accessibility of Research and Development (R&D) tax credits for small companies. It outlines a plan of action to make the regime easier for small companies to use.
As a result of the consultation, the following action plan is set out:
- HMRC will launch an advance assurance service in November 2015, focussing on first time claimant smaller companies – those with turnover under £2m and fewer than 50 employees. There will be publicity to raise awareness of that service, and R&D tax relief more generally, among small businesses and under-represented sectors;
- the government has decided not to align the tax definition of R&D with the accounting definition, as there was no appetite amongst respondents to do this;
- there will be improved guidance on the impact of grants and state aid; and
- HMRC will issue bespoke guidance on R&D tax relief for smaller businesses.
In addition there is a plan for 2016 and 2017 that amongst other things includes:
- cross government action to identify companies that qualify for R&D relief but have not claimed it;
- a review of treatment of subcontractors in R&D tax relief schemes; and
- the development of templates and guidance to record qualifying activity & expenditure.
This seems to be an interesting return to the situation about a decade ago when HMRC's website included an R&D spreadsheet calculator and guidance for small businesses, created in association with the Dti.
3.6 SDRT on redemption of units in a unit trust
The First-tier Tribunal (FTT) has found that the exemption from SDRT for in specie redemptions did not apply to redemption of units held in the Henderson UK Enhanced Equity Trust by a pension fund trustee who had received a distribution of securities and cash from the fund.
Henderson Investment Funds Limited, as manager of the fund had initially paid SDRT on the full market value of all of the units surrendered of £1,775,714.68 under a redemption arrangement in May 2011. It later sought repayment from HMRC of over £1.6m (plus interest) having recalculated the SDRT charge as £117,888.75, on the assumption that the exemption for in specie redemptions in Finance Act 1999 para 7 Sch 19 applied to exempt such redemptions from the Sch 19 charge.
The provisions of Sch 19 were abolished with effect for surrenders of units made on or after 30 March 2014. From that time transactions in unit trusts are subject only to SDRT charges, where applicable, under the principal charge. HMRC accepted that a distribution of chargeable securities made on a redemption of units on an exactly proportionate basis was not (and is not) within the scope of the principal charge. However the problem in this case was that the Unit Holder held a total of 27.41% of the fund units before redemption and in most cases an interest in 28.68 % of the relevant assets of the Fund afterwards.
Para 7 of Sch19 prior to its abolition permitted redemptions resulting in the receipt of holdings nearly as practicably proportionate to the original holding within its scope. However, on the facts of this case the FTT held the redemption did not fall within this exemption.
4. PAYE AND EMPLOYMENT
4.1 CIOT recommends new approach for dealing with IR35
The CIOT has recommended that HMRC introduce annual reporting obligations on organisations that engage individuals under circumstances potentially caught by IR35. This is in response to HMRC's consultation on the matter, which put forward alternative revisions to the existing compliance requirements.
There is an appetite to refine the IR35 position as it is estimated that non-compliance in this area costs the Exchequer around £430m per year. HMRC contends that this non-compliance is, at least in part, down to inefficiencies in the method of collection.
The CIOT recommends that an obligation is placed on any personal service company (PSC) to notify the organisations it engages whether or not it considers that IR35 applies. The organisations in question would then have to report to HMRC what they had been told by the PSC and also whether they agreed with the PSC's conclusion.
This contrasts with HMRC's proposed revisions, which suggest transferring the IR35 compliance burden from the PSC to the organisation which engages it. The CIOT is concerned that HMRC's proposed approach would result in excessively prudent behaviour from organisations; ie they will simply assume IR35 is in point, deduct tax and national insurance accordingly, and 'leave it to the worker and HMRC to sort out this mess.'
HMRC had also suggested a generic 'Supervision, Direction, or Control' test, but it was considered that this would result in genuine arrangements being caught, including those that satisfy the existing rules.
5.1 Cancellation of a VAT registration
The First-tier Tribunal (FTT) has allowed an appeal against the cancellation of a VAT registration, an assessment to recover reclaimed VAT and a penalty for non-payment of that VAT, on the basis the business was still operating at the time.
The case concerned Dave Love Marketing Limited, an entity involved in the yachting business for over 40 years. In December 2013 HMRC decided to cancel its VAT registration with effect from 23 June 2010 and raised an assessment in July 2014 to recover £2,305 input VAT reclaimed between July 2010 and April 2013. A penalty for careless inaccuracy for VAT returns during this period was raised in July 2014 prompting the appeal by the company.
On the evidence the FTT concluded the business was operating until at least October 2011. It found no evidence of further activity, though concluding (without determining) that the business might have been able to re-register for VAT in September 2013. The FTT therefore concluded the cancellation of the registration and associated assessments and penalties could not stand.
5.2 VAT and defined benefit pension scheme management costs
Following previous HMRC Briefs on the implications of the CJEU decision in PPG on the recoverability of input VAT on pension fund management costs, HMRC has issued further Brief (17/15). This extends the transitional period, for the ability to apply the old method for recovering input VAT on defined pension fund management costs, from 31 December 2015 to 31 December 2016.
The reason for the extension is that further work is required to find an acceptable way of treating tri- partite contracts (contracts between the pension scheme trustees, the employer and the investment manager) for both corporation tax and VAT. While it may be possible to view a tripartite arrangement for VAT as establishing a sufficient link between the provision of the service and the employer to permit input VAT recovery by the employer, this is unlikely to work from a corporation tax perspective (leading to the employer's payment of the costs being non-tax deductible).
Solutions being considered include the pension trustees providing scheme administration services to the employer and VAT grouping. However there are difficulties with both these options from a VAT perspective.
The old method permits:
- employers to deduct VAT incurred in relation to the administration of an occupational pension scheme according to their overhead input VAT recovery calculation;
- the pension scheme to recover any deductible input VAT on investment management costs;
- where a single invoice is received for both scheme administration and investment management, the method permits an allocation between employer and pension scheme of 30:70.
5.3 Distance learning and single or multiple supplies
The First-tier Tribunal (FTT) has concluded that the supply of distance learning material by Metropolitan International Schools (MIS) was a zero rated supply of books rather than standard rated supplies of education. The VAT at stake in this case was £5m, and the FTT acknowledge its decision is likely to be appealed further, possibly with a reference to the CJEU. Other providers of education may wish to review their VAT position in the light of the issues raised in this case.
Education services, when provided by eligible bodies, are VAT exempt; other education services are standard rated and the supply of hard copy books is zero rated, whereas online material is generally standard rated. In between is the provision of distance learning courses, which may be one of or a combination of these.
There were a number of points raised in the appeal, but the main VAT points were as follows:
MIS provided distance learning 'trade' courses, such as electrical and plumbing courses, and also animation and 'games' courses, enabling people to become proficient in designing and animating computer and iPhone type games. It was not therefore an eligible body providing education eligible for VAT exemption. There was no provision of classroom support.
Until the House of Lords decision in College of Estate Management ( UKHL 62 - CEM) there had been an agreement between MIS and HMRC that its supplies were 75% zero rated supplies of printed matter and 25% standard rated education supplies.
The House of Lords decision in CEM was that the provision of printed matter by an eligible body that provided education services, was ancillary to VAT exempt education services and not a separate zero rated supply of printed matter. Following this decision HMRC refused to repay excess input VAT claimed by MIS and sought to assess its previous VAT returns on the basis that there should not have been any zero rated supplies.
MIS and HMRC both contended there were single supplies – MIS of printed matter to which any other services were ancillary, and HMRC of education services to which the supply of printed matter was ancillary. The FTT distinguished the case of MIS from CEM as follows.
In CEM the purpose of the student was to pass exams and obtain qualifications from CEM and although a significant element of study was provided through the manuals, there was a significant support network and level of staff around providing the exam qualifications. MIS's purpose was to provide manuals for study to enable the students to obtain qualifications administered by a third party. While there was some telephone study support, it was clear the main form of study was from the manuals, a zero rated supply, and the business structure and staffing level reflected this.
5.4 Does free use of assets prevent input VAT recovery?
The CJEU has decided that in a case referred from Lithuania (Sveda AB, Case C-126/14) the requirement for the public to have free use of a newly constructed path did not prevent input VAT recovery on its construction costs.
Sveda AB had incurred costs on constructing the path, which the Lithuanian authorities required to be made available free of use to the public for an initial five year period. The Lithuanian authorities had subsidised the construction costs to the extent of 90%. The business purpose of Sveda was to sell souvenirs and catering services to visitors attracted to the area.
The CJEU concluded the ability of the public to access the site freely did not preclude the recovery of input VAT on its costs by Sveda, where those costs were intended to support a planned economic activity.
This might be seen as giving further credence to a recent First-tier Tribunal (FTT) decision concerning the input VAT recovery on costs of building a fountain in a public area as part of the costs of redeveloping Folkestone harbour (Folkestone Harbour (GP) Ltd  UKFTT 0101 (TC)).
5.5 Authorised Economic Operators (AEO) and the Union Customs Code (UCC)
HMRC has issued two customs information papers on changes arising from the introduction of the Union Customs Code (UCC) with effect from 1 May 2016. They cover new criterion for AEO financial compliance status (paper 42), transitional arrangements for the withdrawal of the earlier sale provision and information for importers (paper 41).
The new criterion of practical competence or professional qualification will be effected in the UK by a new requirement to demonstrate and to evidence practical competence over the previous 3 years. This will apply as follows:
The changes will affect any new application from 2 January 2016, although HMRC has 120 calendar days to issue a decision on meeting the criterion and either the applicant or HMRC can also arrange extensions to the time period in justifiable circumstances to address any issues identified.
A decision issued on or after 1 May 2016 will be under the UCC rules, though the processing and any queries will fall under the current Customs Code legislation until that date.
Current AEO authorisation holders.
There will be a transition period until 1 May 2019 for current AEOs by which time the AEO must have met all the new UCC requirements. HMRC will need to manage the reassessment work over this period and each AEO will be contacted with more information on how this work will be undertaken in 2016.
Withdrawal of earlier sale provision
Under current EU legislation where there is a series of sales before the importation of the goods, any sale in the supply chain prior to the last sale which led to the introduction of the goods into the customs territory can potentially be used as the basis of the customs value. This 'earlier sale provision' is being withdrawn, although there will transitional period applying until the end of 2017. The transitional period will permit contracts signed before the entry into force of the Implementing Act (expected to be later in 2015 or early 2016) to operate under existing provisions until the end of 2017.
An introduction to the AEO certificate, a non-mandatory internationally recognised quality mark around international supply chains and customs controls and procedures, is at:
5.6 Intragroup supplies and the Skandia decision
HMRC has issued Brief 18/2015 reminding everyone of the 1 Jan 2016 change to the VAT treatment of intragroup supplies. This applies where an overseas establishment of a UK-established entity is part of a separate taxable person as a result of being VAT-grouped in a member state that operates similar 'establishment only' grouping provisions to Sweden. This will be the case whether or not the entity in the UK is part of a UK VAT group.
Prior to 1 January 2016 for transactions between affected countries and the UK, and subject to anti-avoidance rules, the UK VAT rules disregard transactions between entities regarded as part of the same taxable person. This applies such that services provided between an overseas establishment and a UK establishment of that corporate body, where that corporate body is a part of a UK VAT group by virtue of its UK establishment, are not normally supplies for UK VAT purposes, as they are transactions within the same taxable person.
From 1 January 2016 this will no longer be the case and the UK group will need to consider intragroup services to and from the overseas entity and account for VAT accordingly. In such cases HMRC's guidance comments:
- services provided by the overseas VAT-grouped establishment to the UK establishment will normally be treated as supplies made in the UK under place of supply rules, and subject to the reverse charge if taxable; and
- services provided by the UK establishment to the overseas VAT-grouped establishment will normally be treated as supplies made outside the UK under place of supply rules. Therefore they will need to be taken into account in ascertaining input tax credit for the UK establishment. If the supplies are reverse charge services, they should be reported on the trader's European Sales Listing of such supplies.
The Brief indicates the following:
- the overseas countries where this new treatment will apply are: Belgium, the Czech Republic, Denmark, Estonia, Hungary, Latvia, Slovakia, Spain (advanced method), and Sweden;
- there is uncertainty on how cross border intragroup supplies involving the following countries should be dealt with: Cyprus, Finland, Germany, the Netherlands;
- intragroup supplies between the UK
and the following countries should be unaffected:
- Ireland and Austria - as HMRC considers that they do not operate 'establishment only' VAT grouping;
- Italy, Romania, Spain (basic method) - on the basis that HMRC understands 'VAT grouping' in these countries is purely administrative, treating each member as a separate taxable person and just amalgamating their VAT figures on a single return; and
- Bulgaria, Croatia, France, Greece, Lithuania, Luxembourg, Malta, Poland, Portugal, and Slovenia – as HMRC understands that these countries do not have VAT grouping provisions.
6. AND FINALLY...
6.1 Would you be able to join HMRC's Charter Committee?
HMRC is looking for external members to join a new sub-committee of its board, the Charter Committee, the aim of which is to monitor and challenge HMRC's performance against the Charter, which was established to set out what taxpayers should expect from HMRC and what HMRC expects from taxpayers. The committee of 8 to 10 people will have four new external members and hence generally a built-in HMRC majority.
While good news that a Charter Committee is to be retained, the candidate pack highlights some rather odd criteria for applicants interested in providing that robust constructive challenge. The new committee members:
- will only sit for a fixed period of just three years, with an exceptional 18 months extra;
- can be removed for performance or conduct, or a decision (whose?) that the Committee is no longer required;
- can be changed by the Chair (an HMRC-appointed HMRC non-exec director);
- must represent the views of their respective group of 'customers' – although confidentiality rules may limit discussion with them;
- cannot be the subject of a current investigation nor have had any previous involvement with a 'successful tax investigation';
- must not do anything or take on any outside work which might conflict with the interests of HMRC.
Who is left? If you are the last one, please turn off the lights as you leave.
If you really want the benefits of being seriously challenged, make it awkward for yourselves!
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.