1. Business tax
1.1. Error message when submitting HMRC CT600 Return
The following message has appeared on the HMRC Service Issues website:
"Some customers may receive a 1001 error message when trying to submit their HMRC online company tax return.
Error code 1001 - An error occurred whilst parsing entity error message when submitting HMRC CT600 Return
This error is generated when an unusual character is entered in one of the free format boxes within the integrated accounts template. These characters include: [<>!£$%^\*+¬=}_{;:@~#?|]+ - &
After removing these characters if you continue to experience this problem please contact the Online Service helpdesk.
This is currently under investigation.
HMRC would like to apologise for any inconvenience this may cause."
1.2. Capital Allowance points
The capital allowance treatment of expenditure typical for a building can add significant value from a tax perspective. If the capital expenditure qualifies for capital allowances, then it is deductible over time (or in the year of expenditure if qualifying for a 100% rate) against revenue. The capital acquisition cost remains deductible for CGT where the computation shows a gain, as modified by any specific CGT rules. The list below considers the capital allowance treatment of certain items of expenditure:
The relocation of a lift shaft, involving certain demolition costs.
CAA2001 s26 indicates that demolition costs of plant or machinery where the plant or machinery being demolished is replaced is added to the cost of the replacement plant (provided the qualifying activity continues). On the assumption that the qualifying activity is an ordinary property business (CAA2001 s15 & s16), then the demolition costs should be added to the cost of the replacement lift. With respect to the lift shaft on the assumption that it is installed in an existing building, expenditure on the lift shaft should count as incidental to the installation of the lift.
The following is an extract from HMRC's guidance manual CA21190:
You may get a claim that expenditure on installing a lift shaft qualifies for capital allowances as expenditure on the provision of plant or machinery. The lift shaft itself is not plant or machinery. However, expenditure on installing a lift shaft in an existing building should qualify under Section 25 as expenditure on alterations to an existing building incidental to the installation of plant or machinery. Expenditure on installing a lift shaft in a new building does not qualify because Section 25 only applies to expenditure on alterations to an existing building.
Expenditure on lifts would qualify as integral features currently attracting the 10% rate of writing down allowances (8% from 1 April 2012).
Thermal insulation and secondary glazing
Since FA2008 all expenditure on thermal insulation of buildings used for a qualifying purpose (such as an ordinary property business) can qualify for plant or machinery for capital allowance purposes. The Expenditure qualifies if it is added to an existing building (it would not qualify if it was part of the construction of a new building).
The rate of allowance would be at the integral feature rate currently attracting the 10% rate of writing down allowances (8% from 1 April 2012)
Secondary glazing should qualify where its installation is to protect against heat loss. The following is an extract from HMRC manual CA22220:
Give the expression `insulation against loss of heat' its ordinary meaning. Treat capital expenditure on things like roof lining, double-glazing, draught exclusion and cavity wall filling as expenditure on thermal insulation. Sometimes expenditure may be incurred for more than one reason. For example, double-glazing may be installed to insulate against both noise and loss of heat. The expenditure will qualify under Section 28 provided that it is clear that insulation against loss of heat is one of the main reasons why it was incurred.
Excavation trenches for gas and electrical services which will qualify as integral features
Where the gas services are part of the heating system then the trench for that gas system should qualify as expenditure incidental to its installation (CAA2001 s25 expenditure) and would qualify as integral feature expenditure.
If the trench to house electrical services, the capital allowance treatment depends what the electrical services are for. If the services are for the general electrical system of the building (including lighting) the trench expenditure should qualify as expenditure incidental to the installation of integral features. If the electrical services are solely for a computer system, or communication, telecommunication and surveillance systems, fire alarm systems or burglar alarm systems, then the expenditure may qualify as incidental to the installation of general plant or machinery (currently attracting a 20% rate of writing down allowance). If the trench serves both types of expenditure, a just and reasonable apportionment would be appropriate. An extract from HMRC guidance at manual CA22330 follows:
An electrical system (including a lighting system) is not defined for the purposes of the legislation, so the term takes its ordinary meaning: a system for taking electrical power (including lighting) from the point of entry to the building or structure, or generation within the building or structure, and distributing it through the building or structure, as required. The system may range from the very simplest to the most complex.
The term does not include other building systems intended for other purposes, which may include wiring and other electrical components. For example, communication, telecommunication and surveillance systems, fire alarm systems or burglar alarm systems. These other systems are all separately identified in S23 (3) List C of CAA01.
The cost of a ducting system within the building or structure follows the tax treatment of the system or systems that the ducting supports. So ducting which relates solely to the building's electrical system would be part of that system and would qualify for 10% WDAs, whereas ducting relating solely to a computer system could qualify for 20% WDAs. Where ducting supports two or more systems simultaneously, the relevant expenditure should be apportioned on a fair and reasonable basis, and capital allowances may be claimed on each portion of the total expenditure at the rate appropriate to that portion.
Plenum floor
A plenum floor is a floor that forms part of the heating or air conditioning system. Expenditure on such a floor should qualify for plant or machinery allowances (integral features) as part of a heating or ventilation system. The following is an extract from HMRC manual CA22070:
You should give plant and machinery allowances on a temporary floor put down solely to enable the room to be used for dancing and on a plenum floor, which is a floor that forms part of the reticulation system of a heating or air conditioning system. For example, it may form the fourth side of a duct of channel through which stale air is extracted for treatment. Other floors covering heating and ventilation systems and computer cabling are not plant just as suspended ceilings are not plant.
Induction loop for the hearing impaired
This could qualify for capital allowances as expenditure under item 1 of list C of CAA2001 s23, if the expenditure is for the qualifying purpose. It may be that the induction loop could qualify as part of a telecommunication system. A communication system is not specified, but the extract from CA22330 (see point 3 above) does refer to a communication system being allowable as plant or machinery (and therefore attracting the current 20% rate of allowance).
Security doors do locks and the opening system qualify?
If the door opening system and locks could be described as part of the burglar alarm system they would qualify as plant or machinery. If not part of a burglar alarm system, they may only qualify where installed for personal security (CAA2001 s33), but s33 expenditure would not be qualifying expenditure if incurred by a company. Where required for the trade they could also come under item 1 of list C as general machinery and there is anecdotal evidence that HMRC have accepted this analysis. Door closers could potentially qualify for allowances as part of the thermal insulation system of the building.
1.3. HMRC's Bank Payroll Tax guidance
HMRC is in the process of updating its Bank Payroll Tax guidance. Although not yet published on their website, the changes cover the following points:
- Increased cross referencing and hyperlinking
- In connection with the activities of a relevant banking employee, an explanation that the "lending of money" takes the same meaning as for Loan Relationships purposes. An activity will not 'consist of' the lending of money or of dealing in currencies or commodities' where the lending or dealing forms only an incidental or (on a time basis) an insignificant part of the employment activity taken as a whole.
- Clarification of how to consider the activities of support staff when there are both relevant banking activities and other activities. The comments include:
"In a taxable company which only engages in relevant banking activities, all staff will potentially be relevant banking employees as their duties will be either directly or indirectly concerned with those relevant banking activities. This would include for example HR staff, IT support, finance staff etc, even where they have no specific banking skill set and would perform an identical role in a non-banking company.
In a group which undertakes both relevant banking and other non-banking activities, it may therefore be necessary to time apportion the activities of such staff to identify whether they are wholly or mainly undertaking work which, whilst not directly related to relevant banking activities, is indirectly related to such activities."
1.4. Implications of tax rate changes for tax accounting
The 2010 Budgets have introduced a number of changes to corporation tax rates and allowances. From a deferred tax accounting perspective it is important to know when to recognise the impact of the changed rates.
Both UKGAAP and IFRS specify that the tax rate to use in calculating a current or deferred tax liability is one which has been enacted or substantially enacted at the balance sheet date (IAS12 paras 46 & 47 and FRS 19 para 37. For deferred tax the rate to be used is the rate expected to apply when the deferred tax asset or liability is expected to be realised or settled. Only FRS19 specifies what is substantively enacted, and for UK tax, this rule is generally used for accounting under IAS12. The date of substantive enactment is either:
- the date the Bill has been passed by the House of Commons and is awaiting passage through the House of Lords and Royal Assent, or
- the date a resolution that has been passed under the Provisional Collection of Taxes Act 1968.
Both UKGAAP (IFRS21 para 22) and IAS (IAS10 para 22) require non-adjusting post balance sheet events to be disclosed if the effect is material. A non adjusting post balance sheet event includes enactment or announcement of changes in tax rates after the balance sheet date, that will affect current and/or deferred tax.
The third reading of the June 2010 Finance Bill at the House of Commons was passed on 20 July 2010, leaving only passage through the House of Lords, a committee stage at the House of Commons and Royal Assent (the date of Royal Assent was 27 July 2010). Thus for accounting purposes the date of substantive enactment is 20 July 2010.
The section 1 of June 2010 Finance Bill provides for a 27% main rate of corporation tax for the financial year commencing 1 April 2011. Further reductions in the main rate of corporation tax of 1% a year have been announced for each following year until the rate is 24% on 1 April 2014.
The Government announced the reduction in the small company's rate of corporation tax to 20% will appear in Finance Bill 2011 and be effective from 1 April 2011.
The changes to capital allowance rates (reduction in main rate from 20% to 18% and special pool rate from 10% to 8%), and reduction in annual investment allowance (from £100k to £25k) will appear in a future Finance Bill. The measures will take effect for companies on or after 1 April 2012. It therefore appears this will be unlikely to be introduced in the autumn 2010 Finance Bill or Finance Bill 2011.
Thus by 20 July 2010 only the reduction in main corporation tax rate to 27% from 1 April 2011 has been substantively enacted. All other CT and capital allowance rate changes will be non-adjusting post balance sheet events, the effect of which will only require disclosure if the effect is material.
1.5. OECD update to transfer pricing guidelines
In the first major revision since 1995 the OECD has issued revised transfer pricing guidelines for chapters I to III (The Arm's Length Principle, Transfer Pricing Methods, and Comparability Analysis), as well as a new chapter dealing with the transfer pricing aspects of business restructurings. www.oecd.org/document/4/0,3343,en_2649_33753_45690500_1_1_1_1,00.html Transfer pricing for UK tax purposes specifically requires reference to the OECD transfer pricing guidelines (T(IOP)A 2010 s164), though it is referenced to the version of the guidelines in existence at 1 May 1998 plus any further amendments approved by Treasury order. A Treasury order would be required to approve these latest OECD amendments for UK tax purposes, and it would seem appropriate to plan for such a change.
In view of the potentially complex analysis involved in drawing up and implementing group transfer pricing, the potential for significant values for any adjustments and the involvement of more than one revenue authority, a review of the implications of the new guidelines on existing transfer pricing arrangements sooner rather than later could be beneficial.
Comparability, methods and principles
In assessing the comparability of transactions between associated and independent enterprises to determine appropriate transfer pricing, it will be necessary to consider the following:
- The characteristics of the property or services
- Whether the associated and independent enterprises undertake similar functional activities
- The similarity of contractual terms
- The economic circumstances applying to each situation
- The influence of business strategy.
The guidelines recommend that revenue authorities should not (other than in exceptional circumstances) recharacterise transactions. Two circumstances where it may be appropriate to recharacterise transactions could be (i) where the economic substance differs from its form and (ii) where substance and form are the same, but the transaction is not one that would be entered into by independent rational commercial third parties and where the actual structure impedes the [Revenue] authority from determining the appropriate transfer price.
The new guidelines express a recommitment to the arm's length principle for determining cross border pricing between related parties. However the update contains more guidance on comparability analyses. More specifically the guidelines give an example of good practice when performing a comparability analysis using a nine step approach (though this is not compulsory). It covers:
- Step 1: Determination of years to be covered.
- Step 2: Broad-based analysis of the taxpayer's circumstances.
- Step 3: Understanding the controlled transaction(s) under examination, based in particular on a functional analysis, in order to choose the tested party (where needed), the most appropriate transfer pricing method to the circumstances of the case, the financial indicator that will be tested (in the case of a transactional profit method), and to identify the significant comparability factors that should be taken into account.
- Step 4: Review of existing internal comparables, if any.
- Step 5: Determination of available sources of information on external comparables where such external comparables are needed taking into account their relative reliability.
- Step 6: Selection of the most appropriate transfer pricing method and, depending on the method, determination of the relevant financial indicator (e.g. determination of the relevant net profit indicator in case of a transactional net margin method).
- Step 7: Identification of potential comparables: determining the key characteristics to be met by any uncontrolled transaction in order to be regarded as potentially comparable, based on the relevant factors identified in Step 3 and in accordance with the comparability factors.
- Step 8: Determination of and making comparability adjustments where appropriate.
- Step 9: Interpretation and use of data collected, determination of the arm's length remuneration.
In selecting the most appropriate transfer pricing method there is now no distinction between traditional transaction methods (comparable uncontrolled price, resale price, cost plus) and traditional profit methods (transactional net margin and transactional profit split methods). The choice of method should take account of the strengths & weaknesses of each method type. It is recognised that no one method is suitable in every situation, nor is it necessary to demonstrate that a particular method is unsuitable.
There is also more guidance on how to apply transactional profit methods which may for example be the more appropriate methods where each of the parties makes valuable and unique contributions in relation to the controlled transaction, or where the parties engage in highly integrated activities (a transactional profit split method (TPSM) may be appropriate here). Another instance may be where there is no or limited publicly available reliable gross margin information on third parties (a transactional net margin method (TNMM) may be appropriate here). However, it is not appropriate to apply a transactional profit method merely because data concerning uncontrolled transactions are difficult to obtain or incomplete in one or more respects.
Most groups will have had to respond to the challenges of the new economic conditions and previously designed transfer pricing arrangements may need updating. Now may be a good time to review transfer pricing documentation to bring things up to date, and assess the impact of changes to the OECD guidelines. Potential implications of refinements to OECD guidelines that are not properly considered by businesses affected could be seen through an increased challenge to the comparability of data used to support methods that use internal metrics (such as cost plus, resale price and TNMM) and increased focus on TPSM as supporting the pricing chosen for an alternative method or as a primary method.
Business Restructuring
Business restructuring has been used to achieve a tax advantage by critically examining the implications of Value Chain Transformation (VCT), which focus on transforming business operations in every aspect. In relation to tax VCT seeks the alignment of tax and operational models and the attaining and maintaining structural tax improvement and increasing shareholder value. In response to tax motivated changes the OECD transfer pricing guidelines now include a chapter dealing with the transfer pricing aspects of business restructuring, but recognising that such re-organisations are often commercially driven.
Typical restructuring to which the guidelines apply include:
- Conversion of full-fledged distributors into limited-risk distributors or commissionaires for a foreign associated enterprise that may operate as a principal.
- Conversion of full-fledged manufacturers into contract-manufacturers or toll-manufacturers for a foreign associated enterprise that may operate as a principal.
- Transfers of intangible property rights to a central entity (e.g. a so-called "IP company") within the group.
While recognising the difficulty of applying the arms length principle to such a process the guidelines nevertheless have this as the principle aim. The guidelines review the special assumptions around risk transfer, the arms length principle applied to the restructuring itself and the arms length principle applied to post restructuring controlled transactions. For those considering cross border business restructuring, or those who are about to or have undertaken such an exercise, a review of the OECD guidelines on the transfer pricing implications would be a priority.
2. PAYE
2.1. Salary sacrifice arrangements involving cycles and bus passes
HMRC is concerned that some employers have implemented salary sacrifice arrangements for cycles and for bus passes with the expectation that the benefits in question are covered by a tax exemption and that there is no employer liability to National Insurance contributions (NICs). In both cases, there are conditions that must be satisfied in order for the exemption to apply and HMRC has issued a guidance note explaining the approach it will take for past and current periods where the conditions for the relevant tax exemptions are not satisfied, so that the exemptions do not apply.
The note also refers to the guidance about the actions that employers can take to ensure that the conditions for the cycles exemption are satisfied in future.
www.hmrc.gov.uk/specialist/cycles_bus_passes.pdf
3. VAT
3.1. VAT and the provision of supplies to directors
The case of Thimbleby Farms Limited considered the VAT treatment of the provision of services (in this case game shoots) to a director, or employee.
From an employment tax point of view the provision of services to an employee requires the cost to the company of providing that service be accounted for as a benefit to the employee, less any cost made good by the employee, and not the arms length price. HMRC have agreed in certain instances that the cost of the benefit be calculated as the marginal extra cost of providing that service to one person, not the average cost. HMRC have set out their view that where the marginal cost of a service is minimal or zero, then the benefit is zero (see EIM21110 and EIM21111).
The company organised game shoots, purchasing birds from a supplier and providing catering. The commercial value of the shoots was £8,000 per person including VAT, limited to eight guns. The director organised 24 shoots in the year, 12 being commercial and 12 private for himself. The company did not charge the director for the private shoots, while the director (the sole director) did not have an employment contract and received no salary, but declared a P11D benefit of £12,000. This was the approximate cost to the company of providing the 12 private shoots.
From a VAT perspective the value of consideration not consisting wholly of money is such amount in money as with the addition of VAT is equivalent to the consideration (VATA94 s19(3)). As £12,000 annually (or £1,000 per shoot) was the agreed VAT exclusive value for the services provided to the director each year, this was determined as the value on which VAT should be calculated in contrast to the contention by HMRC that the value per shoot should be the market value (£8,000 per shoot or £96,000 annually).
www.bailii.org/uk/cases/UKFTT/TC/2010/TC00607.html
3.2. VAT and Financial Adviser Fees
The ABI has published a series of flow charts and notes on the VAT treatment of financial services (approved by HMRC), whether paid for via commission or as fees, and whether in connection with taking out a financial product, related financial advice or ongoing services.
www.abi.org.uk/Information/Business/50413.pdf
In summary the guidance for providers refers to adviser remuneration in connection with provision of retail financial services of VAT exempt supplies.
- Where the customer wants only financial advice or investment advice, VAT will be accountable on the fees
- Where the customer wants intermediation services i.e. for the arranging and purchasing of a financial product, the fees or commissions received will be exempt from VAT.
- Where both advice and intermediation is required, the VAT treatment will depend on whether one type of service predominates and whether there is a principal supply to which the other services are ancillary.
For further clarification of the VAT treatment of financial services or guidance on the VAT terms of financial service contracts, please get in touch with your usual Smith & Williamson VAT contact.
3.3. Extension of mandatory VAT on-line filing requirement
All new businesses and those existing businesses with a turnover of £100,000 or more have since 1 April 2010 been required to file VAT returns on line. It is apparent this is to be extended to all businesses from 1 April 2012. The following note can be found on the CIOT website at: www.tax.org.uk/showarticle.pl?id=9566
Ministers have now decided to mandate VAT online filing for existing businesses with a turnover of £100,000 or less from 2012. This is expected to be from 1 April 2012 in line with the original proposal made by Lord Carter. This means HMRC will have a year to identify issues and learn from their experience during Tranche 1 mandation - and tailor advice and support activity even more effectively for Tranche 2.
Members will be aware that businesses which are registered for VAT and the turnover of which exceeded £100,000 were required to submit all VAT returns for periods commencing on or after 1 April 2010 electronically. Failure to do so renders the person registered for VAT liable to a penalty. There is only one exception to this rule, and that concerns people who have a conscientious objection to using a computer.
HMRC have advised the CIOT and other professional bodies that the implementation of this requirement for returns required to be submitted by 31 July 2010 has gone smoothly and, accordingly, they proposed to make the requirement to submit returns electronically mandatory for all taxable persons from 1 April 2012.
The response from members acting as agents to submit returns was generally positive, but concerns remain about small businesses. In addition, the CIOT has consistently argued that apart from the exemption for persons who have difficulties in conscience in using a computer, there are also people who have disabilities that make it difficult, if not impossible, to use a computer.
The extension of the requirement will be discussed at meetings of the Carter Agent Steering Group and the JVCC. To assist CIOT representatives at that meeting, the Technical Team would like to hear from members and others about their experiences with online filing. We are particularly interested in:
- Have any small businesses which do not use agents to file returns encountered any problems (e.g. a client who uses a member to submit income tax returns but not VAT returns)?
- Has anyone unable to file online successfully submitted VAT return data over the phone to HMRC?
- Has anyone used the computers available at certain HMRC offices to file online?
- Have there been any problems with the system not being available for long periods of time?
- What have been the costs (to small businesses) of implementing the requirement?
- Have any businesses had to appoint agents where they had not done so before because the owner/proprietor/partners could not cope with online filing?
- Has the HMRC helpline been able to deal swiftly with any problems with online filing?
3.4. Offset rules on settling a reclaim
Offset rules on settling a reclaim and the meaning of same condition' in the context of a non-supply or a car
Following GMAC's success at the High Court in 2004 Masterlease had submitted a reclaim amounting to £3.3m covering the period 2000 to 2006. The High Court case concerned the reclaim of output VAT on the subsequent sale of cars repossessed under HP contracts on the grounds that the resale was not a supply and therefore not VAT consideration for the original supply (so that output VAT previously declared could be recovered in respect of the amount of the original sale price not paid for with VAT consideration.
HMRC agreed the overall amount of Masterlease's reclaim, but responded that as some work was done to the majority of repossessed cars they were not sold on in the same condition' as when repossessed, as required by SI1992/3122 regulation 4(1)(a). They therefore offset the sum of £3m without raising a formal assessment.
www.bailii.org/ew/cases/EWHC/Ch/2004/192.html
The appeal before the Tax Tribunal decided on 15 July 2010 considered two issues the right of offset, and what in the same condition' meant.
The Tribunal agreed with HMRC that where an adjustment is required under VATA94 s80(1) to refund an amount declared as output tax that was not due, an amount of output tax that was not due' referred to the net amount (i.e. the amount refundable under a claim arising from the SI1992/3122 regulation 4(1)(a) issue, less the amount of output tax due on sales of cars which did not meet the same condition' requirement of that regulation.
They then went on to consider what in the same condition' meant. Masterlease had incurred some work (minimal in their eyes) on cars repossessed and sold through their trade centres, the work being undertaken to restore the condition of the cars in preparation for sale. The work generally consisted of touching up scratches to paintwork, valeting, polishing, removing extra things installed by former clients (e.g. mobile phone attachments), and in some cases some repairs to make the car roadworthy and some body repair work.
Masterlease contended that in the same condition' encompassed cleaning and valeting and minor work to the body, such as removing scratches and dents. HMRC accepted that if no work was done on a car except cleaning or valeting the "same condition" requirement was satisfied. If a difference was so minor as to be disregarded it was de minimis. However "same condition" means same condition and not a different condition.
The tribunal decided that "same condition" must be qualified by an epithet such as "substantially" or "materially" (similar to a "de minimis" exception although conceptually different). In their judgment the beating out of a substantial dent would clearly affect the condition of a car. However the touching up of a minor scratch without respraying would not materially affect its condition. It would be anomalous if minor work to make a car roadworthy and compliant with the construction and use legislation, such as replacing defective windscreen wipers or bulbs, excluded a de-supply and still more anomalous if inflating a tyre to correct the pressure did so.
The Tribunal proposed that one or two hours work on the car in addition to valeting and expenditure of up to £50 on parts would have met the "same condition" requirement and adjourned the appeal to allow the parties time to agree the figures or submit further evidence. www.bailii.org/uk/cases/UKFTT/TC/2010/TC00621.html
4. Tax Publications
Tax factsheet: New partner/member - introductory guide
Outline of the practical issues to consider when joining a partnership or LLP.
Briefing note - Tax incentives
Summary of the main features of the tax incentives for individuals and trustees under Entreprise Investment Schemes (EIS) or a Venture Capital Trust (VCT).
Briefing note: Environmentally beneficial plant & machinery allowances
This briefing note provides information on how a business can claim energy efficient plant or machinery allowances. These offer the opportunity to claim first year allowances of up to 100% of the expenditure incurred, or the opportunity to surrender losses generated by the allowances in return for a tax repayment. The value of 100% first year allowances (FYA) is significantly greater now that general plant or machinery allowances have decreased from 25% writing down allowance (WDA) to 20% WDA and many categories of general plant or machinery have been reclassified as integral features' attracting a 10% WDA.
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.
