>continued from previous page PM-Tax | Our Comment PM-Tax Wednesday 22 October 2014 News and Views from the Pinsent Masons Tax team In this Issue Our Comment •New Scottish SDLT replacement less beneficial for institutional investors by Karen Davidson •Increase in tax take from wealthy foreigners by Ray McCann 2 •Growth in SAYE share schemes by Matthew Findley Recent Articles •Update on European Commission investigations into national tax rulings by Heather Self and Caroline Ramsay •Tax and Africa – lessons from the Tullow Uganda Case 6 •Using the UK as a holding company jurisdiction – opportunities and challenges by Tom Cartwright 13 Our perspective on recent cases Procedure Daniel v HMRC [2014] UKFTT 916 (TC) Dock & Let Ltd v HMRC [2014] UKFTT 943 (TC) Substance HMRC v University of Huddersfield [2014] UKUT 0438 (TCC) Société Fonderie 2A v Ministre de l’Économie et des Finances (C-446/13) Hirst v HMRC [2014] UKFTT 924 (TC) PSC Photography Ltd v HMRC [2014] UKFTT 926 (TC) Forsyth v HMRC [2014] UKFTT 915 ING Intermediate Holdings Ltd v HMRC [2014] UKFTT 938 (TC) Events 22 People 23 NEXT @PM_Tax © Pinsent Masons LLP 2014 >continued from previous page PM-Tax | Our Comment New Scottish SDLT replacement less beneficial for institutional investors by Karen Davidson The first rates set for the Scottish government’s new tax on the sale or lease of Scottish property will result in institutional commercial property investors being significant losers, while buyers of averagely-priced homes in Scotland will benefit. Land and Buildings Transaction Tax (LBTT) will replace Stamp Duty Land Tax (SDLT) for transactions in land situated in Scotland from 1 April 2015. The basic framework of the tax was created by the Land and Buildings Transaction Tax (Scotland) Act 2013, but until now the rates at which the tax would be charged have not been known. In its draft Budget, the Scottish government has now announced the proposed rates, which are subject to approval by the Scottish Parliament. Under the rates and bands which have been announced, LBTT for residential purchases will be more than SDLT would have been for homes over approximately £325,000. This means that purchasers of larger family homes, in particular those in the larger cities such as Edinburgh, Glasgow and Aberdeen, will pay more and in some cases, substantially more. LBTT will be charged on a progressive basis, similar to the current UK income tax system, under which slices of the transaction price will be subject to LBTT at increasing percentages. UK SDLT is charged on a ‘slab’ basis, where the amount of the consideration determines a single rate of tax which is applied to the whole amount – so that, for example, a purchase of property for £250,001 – which is £1 above the threshold for the 3% band would result in the 3% rate being applied to the whole price, whereas the purchase of a property for £250,000 would result in a 1% charge on the entire price. Commercial property The first £150,000 of the sale or lease of non-residential property would be free of LBTT, according to the draft Budget. The proportion of a non-residential sale between £150,001 and £350,000 would be taxed at 3%; while any amount over £350,000 would be taxed at 4.5%. By contrast the top rate of SDLT is 4%, charged on the whole price for properties costing more than £500,000. LBTT would be higher than the corresponding SDLT charge on purchases just over the £2 million mark. Residential leases are only subject to LBTT if they exceed 175 years. This means that pension funds and other institutional investors buying commercial property in Scotland, which will invariably be above this level, will face higher transaction costs than on the purchase of a comparable property elsewhere in the UK. For example £240,250 more LBTT would be payable on the purchase of a £50 million commercial investment property in Scotland compared with the SDLT for a similar property in the rest of the UK. The Scottish government has said that LBTT will be ‘revenue neutral’, meaning that it should generate the same amount of tax as SDLT would have generated over the same period. However, it will “redistribute the burden of taxation”, according to the draft Budget document. According to Scottish government figures, 90% of residential taxpayers and 95% of non-residential taxpayers will be “no worse off” under the new system than they would have been had SDLT continued at the same rates. The Scottish government has produced LBTT calculators which show how much tax would be payable under the proposals. There are concerns that this will mean that institutional investors will opt to invest their funds in the lower tax environment elsewhere in the UK, which could have a significant negative impact on commercial development of new offices, retail and industrial properties in Scotland which rely on this institutional investment for the funding to make the developments viable in the first place. This in turn could impact the construction industry and the wider economy and make Scotland a less attractive place for inward investment. Residential property The draft Budget proposes that the first £135,000 of a residential property transaction would be free of LBTT; while a 2% rate would apply to the amount between £135,001 and £250,000 and 10% to the amount between £250,001 and £1,000,000. Any amount above £1 million would be taxed at 12%. Non-residential leases will be taxed to LBTT at 1% of the amount by which the net present value exceeds £150,000. The net present value is calculated by reference to the rent payable and the term of the lease. By contrast, the highest rate of SDLT for properties not purchased through a company is 7% for properties costing more than £2 million. CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 2 >continued from previous page PM-Tax | Our Comment New Scottish SDLT replacement less beneficial for institutional investors (continued) This makes LBTT rates on non-residential leases the same as for SDLT. However the big difference between the LBTT and SDLT treatment of leases is that for SDLT you calculate the NPV just looking at the rent for the first five years of the lease – so rent increases after that time do not affect the tax paid. For LBTT it will be necessary for a tenant to revisit the position by submitting a return every three years and paying additional duty as a result of rent increases. This will be an added administrative burden which will increase the tenant’s costs. Revenue Scotland A new tax authority, Revenue Scotland, has been established to collect and administer the new taxes, in conjunction with Registers of Scotland and the Scottish Environmental Protection Agency (SEPA). The Scottish Parliament has also legislated for a tough new general anti-avoidance rule (GAAR) to apply to the devolved taxes. It will be stronger than the UK GAAR which only targets ‘abusive’ arrangements. When does it apply? LBTT will apply to transactions where the effective date is on or after 1 April 2015. As with SDLT, the effective date will be completion, or if earlier substantial performance of the contract. This means that the new tax could apply to transactions being negotiated now so those in the process of buying land in Scotland may need to factor in the effect of the new tax. For larger value commercial transactions this may include trying to get the deal done before LBTT comes into force. Subsale relief Under SDLT, subsale relief prevents a double SDLT charge when someone contracts to buy property and then sells the property on before they have acquired it from the original seller, so that the property is transferred directly from the original seller to the third-party buyer. There is currently no equivalent of subsale relief for LBTT. However, in a consultation that closed on 29 August, the Scottish government proposed that “significant” developments or redevelopments of land where that development or redevelopment completes within five years of the effective date of the subsale, be entitled to subsale relief. By “significant”, the proposal refers to developments which require planning permission. The first buyer would still have to pay the tax up front, but could then apply for it to be refunded if a completion certificate was issued for the development within five years of the subsale. Karen Davidson is a Legal Director in our tax team based in our Glasgow office. Karen specialises in corporate and business tax as well as advising in relation to employee share incentive arrangements. Her experience includes advising on the tax aspects of corporate mergers, acquisition disposals, joint venture arrangements and reorganisations. In addition she advises on the design, establishment and operation of share incentive arrangements and the implications of corporate transactions on such arrangements. Landfill tax Scotland will also introduce a new landfill tax from 1 April 2015. It was announced in the draft Budget that it is proposed that Scottish landfill tax will be charged at £82.60 per tonne of taxable waste with a lower rate of £2.60 per tonne of taxable waste; the same rates as planned elsewhere in the UK for 2015/16. The proposed credit rate for the Scottish Landfill Communities Fund would be set at 5.6% and funds would be distributed to projects within 10 miles of a landfill site or waste transfer station. E: [email protected] T: +44 (0)141 567 8535 CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 3 >continued from previous page PM-Tax | Our Comment Increase in tax take from wealthy foreigners by Ray McCann The amount of additional tax collected by a specialist HM Revenue and Customs (HMRC) team targeting wealthy foreigners living in the UK increased by 27% to reach a new record last year, according to figures obtained by Pinsent Masons under a Freedom of Information request. The figures show that investigations and other compliance work by HMRC’s Personal Tax International team yielded £153.6 million in additional revenue in 2013/14, up from £120.8m in 2012/13. The team’s annual tax take from individuals including highly-paid foreign workers, such as overseas staff working in investment banking and hedge funds, is now 62% higher than it was just five years ago, according to the figures. HMRC’s reach is continuing to grow given recent heavy investment into new sophisticated data systems, making it more important than ever for these individuals to ensure that their tax affairs are up to date otherwise they risk an aggressive investigation into their tax affairs. Additional tax take from compliance work obtained by HMRC’s team targeting wealthy foreign expats The figures show that HMRC is investing heavily in those tax investigations that focus on potentially high-yielding areas. Highly-paid foreign workers are also at risk of tax compliance failures due to the complexity of rules in this area. 160 £153.6m 150 140 Investment bankers and other well-paid City staff have always been a prime target for HMRC because they tend to bring in significant compliance yield. HMRC knows it is an area where businesses and individuals often make mistakes: the rules are complicated, and businesses need to understand both the law and HMRC practice to avoid making costly mistakes. 130 £117.1m 120 £110.8m 110 100 £120.8m £94.9m 90 With the increased pressure to try to boost its revenue, it comes as no surprise that HMRC is continuing to target wealthy expats and the better off generally, many of whom work in investment banking and hedge funds with generous pay and bonuses. The fact that HMRC’s increase in yield is against the tide of overall falls in remuneration for investment bankers shows how successful they are being in this area. 2009/10 2010/11 2011/12 2012/13 2013/14 Ray McCann is a Partner (non-lawyer) leading our private wealth tax practice and also advises corporate clients on a range of advisory and HMRC related issues, especially in relation to tax planning disputes. Until 2006, Ray was a senior HMRC Inspector where he held a number of high profile investigation and policy roles including, work on cross border tax avoidance issues with tax authorities in the US, Australia and Canada. In 2004, Ray was responsible for the introduction of the “DOTAS” rules. HMRC’s Personal Tax International, or ‘expat’, team deals with the tax affairs of international assignees and their UK resident employers. These cases tend to require specialist attention because they may involve complex and substantial remuneration packages, while the individual’s personal tax liability may depend on whether the employer meets some or all of their tax liability and on the interpretation of tax treaties between different countries. It is easy for expats to make mistakes on their tax returns because they have not fully understood the tax rules in the UK. They may also have income from investments in other countries, or even overseas tax liabilities that all need to be properly documented and accounted for to HMRC. Often it is the employer that makes a mistake, and in many cases it is possible that the employer has to pick up the bill. E: [email protected] T: +44 (0)20 7054 2715 CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 4 >continued from previous page PM-Tax | Our Comment Growth in SAYE share schemes by Matthew Findley Profits made by employees participating in save as you earn (SAYE) employee share option schemes more than doubled in the past year, allowing employees to benefit from the strong stock market performance of the companies that they work for. Figures obtained by Pinsent Masons show that employee profits from SAYE schemes rose by 141% last year, up from £360 million in 2011/12 to £870m in 2012/13. At the same time, participating employees saved a combined £430m in income tax and national insurance by participating in the tax-advantaged scheme. As businesses get better at communicating the benefits of schemes like SAYE, more and more staff from companies offering them are looking to sign up. The popularity of SAYE should also increase as companies start to look more seriously at the role share schemes can play in long-term wealth creation, particularly given the shortfall in pension savings and the dramatic recent reform of the pensions market. SAYE is one of two types of ‘all employee’ tax-advantaged share schemes which allow employees to build up and ultimately benefit from a financial stake in their employing company. Employees who join a SAYE scheme have money deducted from their pay after income tax and national insurance each month over the life of the scheme, which is usually three or five years. This money is put aside to buy shares in their company at a discounted price. Since 6 April 2014, employees have been able to contribute up to £500 each month to a SAYE scheme if the scheme allows, up from the previous £250 per month limit. This recent doubling of the amount of money that employees can contribute to a SAYE scheme each month should encourage even more interest in the scheme. At the end of the option period, the employee can choose to take up their option and then keep or sell the shares. If the share price of the company has fallen since the employee began to save, they can instead get their money back. In most, but not all, circumstances, no income tax will be charged on any profit made when the share option is exercised. The employee will instead be liable for capital gains tax arising when the shares are sold. Matthew Findley is Head of our Share Plans & Incentives team. Matthew advises companies in relation to the design, implementation and operation of share plans and employee incentive arrangements both in the UK and internationally. His experience extends to both executive plans and all-employee arrangements. Matthew has been quoted in both Houses of Parliament on employee share ownership. He also has considerable experience of the corporate governance and investor relations issues associated with executive incentives and remuneration planning generally. The figures show that company share options are not the preserve of senior directors. SAYE is a highly tax efficient and risk-free route for employees to invest in the stock market, and to take a financial stake in the company they work for. Employees who have joined a SAYE scheme and then opted to sell their shares this year have really reaped the benefits of an improving stock market. E: [email protected] T: +44 (0)20 7490 6554 CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 5 PM-Tax | Recent Articles Update on European Commission investigations into national tax rulings by Heather Self and Caroline Ramsay We previously reported in PM-Tax that multinationals Apple, Starbucks and Fiat Finance and Trade could face retrospective tax bills of millions of Euros if the European Commission finds that their taxation breached European Union state aid rules. In this updated article we discuss the additional information that has been released about the Apple and Fiat investigations and a new announcement of an investigation into Amazon. Any other company that has secured a favourable tax ruling could be at risk. In June 2014 the European Commission launched three in-depth investigations into the tax affairs of Apple in Ireland, Starbucks in the Netherlands and Fiat Finance and Trade in Luxembourg. In October 2014 it announced the opening of an in-depth investigation into the corporate tax affairs of Amazon in Luxembourg. The Fiat investigation relates to a decision in 2012 by Luxembourg to approve a transfer pricing arrangement by Fiat Finance and Trade, which lends money to other Fiat companies. The Luxembourg authorities signed a five-year agreement with Fiat, which resulted in it paying a 10% tax rate on around €2,542 million compared with the standard rate of 28.8%. The Commission’s preliminary view was that the arrangements constituted state aid. In parallel to these formal investigations the Commission is continuing a wider inquiry into tax rulings, which covers more member states. It has also announced recently that it is broadening the scope of an ongoing in-depth investigation opened in October 2013 into Gibraltar’s corporate tax regime to cover tax rulings. In relation to Starbucks, the Commission is examining the individual ruling issued by the Dutch tax authorities on the calculation of the taxable basis in the Netherlands for manufacturing activities of Starbucks Manufacturing. Further details have not yet been released. Since the June announcements, the Commission has published a letter to Ireland setting out its preliminary findings in relation to the arrangements with Apple and a letter to Luxembourg in connection with its arrangements with Fiat. These letters give further details of the Commission’s reasons for kicking off the investigations and give its preliminary views – in each case that there has been illegal state aid. It is not clear how long it will be before the Commission reaches a final decision. The Amazon investigation relates to a tax ruling dating back to 2003 which is still in force. It applies to Amazon’s Luxembourg subsidiary Amazon EU Sàrl, which records most of Amazon’s European profits. The Commission says the tax ruling means that Amazon EU Sàrl pays a tax deductible royalty to a limited liability partnership established in Luxembourg but which is not subject to corporate taxation in Luxembourg. As a result, the Commission says that most European profits of Amazon are recorded in Luxembourg but are not taxed in Luxembourg. It says that the amount of this royalty, which lowers the taxable profits of Amazon EU Sàrl each year, might not be in line with market conditions and may therefore constitute state aid. The Commission said that there were “several inconsistencies” in the way in which transfer pricing rules were applied to Apple that did not appear to comply with the arm’s length principle. It cited tax talks between Ireland and Apple in 1990 which it said indicated that quoted tax margins had been “reverse engineered” without economic basis and tied to concerns about local jobs. It said that there was “no indication” that the arrangements could be “considered compatible with the internal market”; particularly given the fact that the agreement lasted 16 years, compared to arrangements in other European countries that typically last for no more than five years. These developments could have implications for any company which has secured a ‘favourable’ tax ruling from national tax authorities. Any company which has a favourable tax ruling will need to assess the risk that the Commission may decide that this is state aid. A deal which seemed ‘too good to be true’ may now turn out to be just that – and could lead to significant costs. CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 6 >continued from previous page PM-Tax | Recent Articles Update on European Commission investigations into national tax rulings (continued) Some state aid is illegal under EU rules because it distorts competition. If the Commission rules that these member states have given unlawful state aid, any company found to have benefited would find itself obliged to pay taxes it previously understood it was not required to pay. There would therefore be a claw-back of any tax relief which has been unlawfully given. The claw-back will apply regardless of any time limits for repayment of tax in the national legislation and will usually go back up to ten years. What should companies do now? Companies whose effective tax rate in any EU country has been reduced by a ruling should consider the potential impact of the state aid challenge. It is likely to be particularly relevant to US multinationals, but also to any other group that has intellectual property in the Netherlands, or financing operations or group debt in Luxembourg. As two of the investigations relate to Luxembourg, it appears that Luxembourg may be a particular focus of their investigations. The Commission’s investigations follow widespread public debate in some EU member states about tax avoidance by some multinational companies. Fighting tax evasion has also been made a priority for Margrethe Vestager, the Danish politician appointed to succeed Joaquin Almunia as competition commissioner from November. Working with colleagues in our strong state aid practice Pinsent Masons can help clients understand the EU process as well as the potential tax issues. Heather Self is a Partner (non-lawyer) in our Tax team with almost 30 years of experience in tax. She has been Group Tax Director at Scottish Power, where she advised on numerous corporate transactions, including the $5bn disposal of the regulated US energy business. She also worked at HMRC on complex disputes with FTSE 100 companies, and was a specialist adviser to the utilities sector, where she was involved in policy issues on energy generation and renewable. Although the European Commission does not have direct authority over national direct tax systems it can investigate whether certain advantageous fiscal regimes would constitute “unjustifiable state aid” to companies. It has been investigating certain tax practices in several member states following media reports alleging that some companies have received what it described as “significant tax reductions” by way of “tax rulings” issued by national tax authorities. Tax rulings are used in particular to confirm transfer pricing arrangements. The Commission said: “Tax rulings as such are not problematic. They are comfort letters by tax authorities giving specific company clarity on how its corporate tax will be calculated or on the use of special tax provisions. However, tax rulings may involve state aid within the meaning of EU rules if they are used to provide selective advantages to a specific company or group of companies.” E: [email protected] T: +44 (0)161 662 8066 Caroline Ramsay is a Senior Associate in our EU & Competition team who advises in relation to all aspects of European and public law. She has particular expertise in European State aid and public procurement. Caroline advises clients ranging across a variety of sectors, including local authorities, educational establishments, energy utilities and charitable foundations. The Commission confirmed that it was not calling into question the general tax regimes of the three member states concerned, just the selective rulings it believes have been issued. Interested third parties are able to submit comments in relation to the investigation. The companies involved and the member states concerned have denied that there has been unlawful state aid. E: [email protected] T: +44 (0)141 567 8653 CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 7 PM-Tax | Recent Articles Tax and Africa – lessons from the Tullow Uganda Case On 13 October we held an interesting client event to discuss the Tullow Uganda case (Heritage Oil and Gas Ltd and another v Tullow Uganda Ltd [2014] EWCA Civ 1048). David Wolfson QC of One Essex Court, who acted for Tullow outlined the lessons he thought could be learned from the case and there followed a discussion led by Heather Self of Pinsent Masons. We were very pleased to be also joined by barrister Richard Mott of One Essex Court who also represented Tullow in the litigation. The case concerned a joint venture in Uganda for petroleum exploration between Tullow and Heritage. Heritage wanted to sell their interest in the joint venture and entered into negotiations with a third party. One of the terms of the joint venture was that if one of the parties wanted to sell their interest, the other party had a right of pre-emption to buy the interest on the same terms as had been agreed by the third party. Tullow exercised the pre emption right and bought the interest on the sale and purchase agreement that had been negotiated by the third party. Tullow therefore had little opportunity to influence the drafting of the agreement. contractual claim against another party for the tax, it is important to demonstrate that you believed that the tax was properly chargeable. On a practical note, David Wolfson stressed the importance of securing the best local tax expert to give evidence in your favour. In some jurisdictions there may not be many experts and you need to secure one who practises locally, as such a person will be seen as much more persuasive by an English court in commenting on a matter of overseas tax law than a UK based expert. It may even be appropriate to retain more than one local expert to prevent your opponent being able to use them. The Ugandan tax authority assessed the capital gain that Heritage had made on the sale of the interest to Ugandan tax. As Heritage no longer had any assets in Uganda, the Ugandan authorities claimed the tax liability against Tullow. Tullow paid the tax and claimed it back from Heritage under the terms of the sale and purchase agreement. Heritage’s arguments included that the tax was not properly chargeable by the Ugandan authorities and therefore could not be covered by the indemnity and that a notice clause requiring Tullow to give Heritage notice of the claim (that Tullow had not complied with), was a condition precedent to Heritage claiming under the sale and purchase agreement. As the contract was governed by English law, the dispute came before the UK Courts. The Court of Appeal found for Tullow, substantially upholding the decision of the Commercial Court, deciding that the tax was properly chargeable, but even if it had not been Tullow believed it was. It also held that the notice provision was not a condition precedent. David Wolfson said that any company faced with a demand from a foreign tax authority needs to make sure that it pays on the strongest possible basis – this may involve negotiating with the overseas government to ensure that they comply with the correct procedure – even if the only way to continue to do business in the country is to pay the tax demanded. However, there is a balance to be drawn, as in negotiating you could be seen to be colluding with the authorities and paying the tax voluntarily which would probably invalidate the indemnity. David Wolfson stressed that in situations where tax is being demanded by a government outside the UK, it is crucial to get local advice concerning the validity of the tax demand at the earliest opportunity. Having got the advice it is important to ensure that the advice is properly documented as whenever there is a The indemnity was litigated in London. Whilst this has advantages in terms of certainty of the process and reliability of the system, there are drawbacks. One big drawback is that the process is public and can involve wide disclosure and extensive cross examination. An arbitration process would be private. Heritage had challenged the liability with the Ugandan tax authorities. However, David Wolfson said that in many cases, where you have no further business in the State concerned, this may not be the best course of action as a local court is unlikely to find against its own tax authority in favour of a foreign claimant and a decision from the local court that the tax claim is valid can undermine your arguments on whether you have to pay under the indemnity. CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 8 >continued from previous page PM-Tax | Recent Articles Tax and Africa – lessons from the Tullow Uganda Case (continued) The Court of Appeal found for Tullow on the question of whether the notice provision was a condition precedent, holding that it was not. Although the court’s decision on this point was consistent with the position usually adopted by English courts that a condition is only a condition precedent if it clearly states that it is, David Wolfson suggested that it would be better to avoid your whole case depending upon such a point. He suggested that when drafting a contract you could include a clause stating that in the contract terms would only be conditions precedent if they stated that they were. In the discussion that followed, the consensus was that we are likely to see many more examples of authorities charging tax on indirect sales of assets located in their jurisdictions. In the Tullow case the figures were so great that the tax liability would amount to a substantial proportion of Uganda’s total tax revenue. The public nature of the Tullow litigation could result in other states seeing what Uganda had done and deciding to follow suit. Anyone investing in Africa and countries such as India and China therefore needs to look closely at their contractual position and factor in the risk of such a tax demand. For more thoughts on practical points on tax deeds see Tax Journal article written by Eloise Walker. CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 9 PM-Tax | Recent Articles Using the UK as a holding company jurisdiction – opportunities and challenges by Tom Cartwright The “holy grail” of the international tax practitioner is to find the perfect international holding company jurisdiction. To what extent is the UK a viable holding company location? A holding company jurisdiction needs certain characteristics: Dividend Taxation A fundamental advantage which the UK holds over many other typical holding company jurisdictions (such as the Netherlands and Luxembourg) is that it does not levy withholding tax on dividends paid by UK companies. This means that the UK is extremely tax efficient for the repatriation of dividends to shareholders, regardless of where those shareholders are based and whether a double tax treaty may also apply to provide relief. •the possibility of returning profits to shareholders with minimal tax leakage •the ability to receive profits from underlying subsidiaries without taxation at home •the ability to dispose of investments in the underlying subsidiaries without triggering a tax charge on any profit or gain •a good treaty network to ensure that profits can be repatriated to the holding company from underlying subsidiaries, whilst minimising local withholding taxes Dividends received by a UK company from overseas subsidiaries are generally exempt from tax. It is possible to qualify for the exemption in a number of different ways. If the holding company is not a “small” company, the most straightforward basis for exemption is where the holding company controls more than 50 per cent of the voting rights in the subsidiary through its shareholdings. Most subsidiaries will satisfy this requirement. •low risk from anti-avoidance measures that profits of subsidiaries will otherwise be taxed in the holding company jurisdiction. The UK has emerged over the last decade as an increasingly viable holding company jurisdiction, particularly for investments in countries within the European Union. This emergence has been based on the following aspects of the UK’s tax regime: If the holding company is small (which means broadly that, when aggregated with all companies under common control, it has fewer than fifty employees and either its annual turnover or net asset value from its balance sheet do not exceed €10 million), it will be exempt from tax on dividends received from subsidiaries received in qualifying territories. Qualifying territories include any territory with which the UK has a double tax treaty containing a nondiscrimination provision. •the fact that the UK does not levy withholding tax on dividends paid by its companies to any jurisdiction •the introduction of a dividend exemption, ensuring that dividends received by a UK company from overseas subsidiaries are exempt from tax in the UK •an extensive network of double tax treaties Where neither of these criteria is met (where the company is not small but does not hold a controlling interest in the subsidiaries), there are other ways in which dividends can qualify for exemption. These include where the dividend is paid in respect of nonredeemable ordinary shares, where there is a portfolio holding of less than 10% of the issued share capital and economic rights, or where the dividend does not reflect profits derived from transactions which are designed to avoid or reduce UK tax. •the reform of some of the UK’s more draconian anti-avoidance rules, including its Controlled Foreign Company (CFC) rules in 2013 •the introduction of an exemption from UK taxation on the disposal of “substantial shareholdings” in subsidiaries by UK companies. However, some of the UK’s rules in this area remain less straightforward than might be desirable and this can create uncertainty, particularly in more complex group structures. This article looks at the requirements of the regime, the issues which can arise when the UK is used as a holding company and how they can be resolved. The result of the dividend exemption, coupled with the lack of withholding tax on dividends paid on by the UK holding company should ensure there is no tax leakage in the UK on the repatriation of dividend profits to the ultimate shareholders. Further, the UK’s extensive network of double tax treaties and its access to the benefits of the EU Parent-Subsidiary Directive should ensure that dividends can generally be received by the UK holding company without local withholding taxes. CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 10 >continued from previous page PM-Tax | Recent Articles Using the UK as a Holding Company Jurisdiction – Opportunities and Challenges (continued) Anti-avoidance Rules – CFCs A development, which took effect on 1 January 2013 and which has enhanced the UK as a holding company jurisdiction was a change to the UK’s Controlled Foreign Companies (CFC) Regime. The fundamental change is an attempt to make the rules more targeted to scenarios where profits have actually been diverted from the UK, rather than a more blanket provision which potentially caused overseas profits with a limited UK nexus to be subject to UK taxation. There are also other exemptions from these rules which will often apply. For example, if the asset which is disposed of is used for the purposes of a trade carried on outside the United Kingdom or is used for the purposes of “economically significant activities” carried on by the subsidiary wholly or mainly outside the United Kingdom, no charge will be imposed on the UK holding company. Thus, a subsidiary carrying on a typical business activity should not find that it causes the UK holding company to fall foul of these rules. Further, if the arrangements under which the gain arises do not form part of a scheme or arrangement with a main purpose of avoiding a liability to UK capital gains tax or corporation tax, no charge will apply. In essence, a CFC is a foreign company which: •is resident outside the UK •is controlled by UK persons •is subject to a level of tax which is less than 75% of the UK corporate tax on such profits (currently 21%, reducing to 20% from April 2015). The Substantial Shareholdings Exemption – a mixed blessing? The vagueness of the scope of the UK’s version of a participation exemption, the “Substantial Shareholdings Exemption” (SSE) can deter some from using the UK as a holding company jurisdiction. The CFC rules only bite on UK companies which have a minimum 25% participation in the CFC (or are entitled to 25% of the CFC’s profits). Where they apply, such UK companies will be taxed as if the profits were made by that company in the UK. In order to qualify for the exemption from tax on a gain made on the sale of shares in a subsidiary, the rules impose a number of different requirements on both the company which is sold and the selling entity. The company which is sold must: •have been a trading company or the holding company of a trading group or sub-group throughout the 12 month period ending with the disposal; and In the case of a UK holding company, the CFC rules are therefore only likely to be of relevance where profits are made in a jurisdiction with tax rates below 15%. Further, due to the broad UK exemption on dividends, any dividends received by overseas subsidiaries or any capital gains would not cause the CFC’s profits to be subject to UK tax. •be a trading company or the holding company of a trading group immediately after the time of the disposal. There is some latitude with the second requirement, where that requirement would have been satisfied at some point in the previous two years (in other words the fact that the purchaser of the subsidiary decides immediately to change its business such that it no longer qualifies will not of itself prevent SSE from applying). The CFC rules are unlikely to bite where all the significant functions of the overseas company are carried on outside of the UK – as will often be the case for an intermediate holding company within an international group. For these purposes, a “trading company” means a company whose activities do not to a substantial extent include any activities other than trading activities. The key concepts here are “trading” and “substantial” and, unhelpfully, neither is defined in the statute. Anti-avoidance rules – Attribution of Capital Gains Where a company which is not resident in the UK, and would be closely controlled if it were, makes a chargeable gain on the disposal of an asset, those gains can be attributed to the UK “participators” (broadly the shareholders) of that company for UK tax purposes. This can also apply to gains made by indirect subsidiaries. A company is closely controlled if it is under the ultimate control of five or fewer participators. However, no gain would be attributed to a UK shareholder which holds an economic interest of less than 25% in the gain made by the underlying company - although this is likely to be satisfied in most cases where a UK holding company is used. “Trading” is a concept derived from English case law. Broadly, it requires a company to be carrying on activities which amount to a trade, rather than a holding of investments. HMRC generally takes the view that “substantial” for these purposes means more than 20%. This 20% test is applied both to the net assets of the business and the income derived by the business as well as expenditure and time spent by employees on trading or investment activity. However, HMRC may apply some latitude. For example, they will typically accept that a cash balance does not amount to an investment if it is reasonably expected to be required for the purposes of a trade. However, the attribution of gains rules are often overridden by double tax treaties, so that the gain can only be taxed in the jurisdiction in which the subsidiary is located. There is also a specific exemption for companies which are (or which have an ultimate parent which is) listed on a recognised stock exchange. CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 11 >continued from previous page PM-Tax | Recent Articles Using the UK as a Holding Company Jurisdiction – Opportunities and Challenges (continued) In addition, there are certain requirements in respect of the selling entity. Throughout at least a 12 month period prior to disposal it must hold a “substantial shareholding” in the subsidiary concerned and be a trading company or the holding company of a trading group. It must also be a trading company or the holding company of a trading group immediately after the disposal. HMRC will generally accept that where a limited partnership is inserted within a group and does not have legal personality, then it is entitled to look through it for the purposes of determining whether its subsidiaries should be treated as the 51% subsidiaries of its parent company. However, where the partnership which is inserted has legal personality (such as a Scottish limited partnership or a UK limited liability partnership which are both treated as transparent for tax purposes), HMRC’s view is that the group is broken and it is not possible to look through from the parent companies to the underlying subsidiaries. This can cause unexpected problems and where any group includes companies or entities without share capital, serious care needs to be taken to determine firstly what the “group” is and, secondly, whether it is a trading group. A company holds a substantial shareholding in another company if it holds at least 10% of the company’s ordinary share capital. This interest must also amount to a beneficial entitlement to at least 10% of the profits available for distribution to equity holders and at least 10% of the assets of the company available for distribution to equity holders on a winding up. Care must therefore be taken with share classes which have a variable return if and when certain hurdles are met. “Equity holders” in this context includes not just shareholders but the holders of certain types of debt deemed not to be “normal commercial loans”, such as convertible debt. Care therefore needs to be taken with smaller holdings in companies with a variety of different share classes and debt instruments. Similar problems arise in determining whether the rules governing qualifying shareholdings in joint venture companies apply. Conclusion The UK has many advantages as a holding company jurisdiction and significant improvements have been made in recent years. However, the substantial shareholding exemption is the most problematic of the UK rules in this area. In most basic corporate structures it works well, provided that the trading status of the group is reasonably clear. However, where more complex structures, including fund structures, are involved, the rules are not as user-friendly as they might be. Remaining a trading company The requirement for the selling company to remain a trading company or the holding company of a trading group after the sale can also cause problems if all the trading entities have been sold. Essentially, if the selling company would no longer form part of a trading group following a sale, HMRC should accept that SSE will still apply if either it is planned to liquidate the company in the near future, to distribute the cash from the sale or there is a plan to acquire a new trade or trading group within a reasonable time. Tom Cartwright is a Partner in our tax team. His practice focuses on all areas of corporate tax, including the tax aspects of corporate acquisitions and reconstructions, involving the financing and structuring of UK and crossborder buy-outs, mergers and acquisitions. Tom has considerable expertise in tax structuring for debt restructuring and corporate recovery for distressed businesses. He has advised extensively in the energy sector for oil and gas companies. Tom has worked on private equity transactions and refinancing, on opco-propco structures and specialises in all direct taxes, as well as VAT. If instead, it is hoped that any cash proceeds from a disposal can be warehoused in the UK holding company for the foreseeable future until further opportunities to acquire a trading group or to make an investment present themselves, it is unlikely that SSE would be applicable. In those circumstances, it may be advisable to consider adding a further layer of holding company to the structure in a jurisdiction with a more robust participation exemption, such as Luxembourg. Transparent entities and joint ventures Further issues can arise when non-corporate entities form part of a group. The general meaning of “group” for the purposes of SSE is a company together with its “51% subsidiaries”. A 51% subsidiary is a company in which the other company owns more than 50% of its ordinary share capital. This can create a problem, since an entity without share capital can break the group above and below it. In particular, this can affect a Delaware LLC, which may or may not be set up with a share capital (based on HMRC’s current interpretation). E: [email protected] T: +44 (0)20 7054 2630 CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 12 >continued from previous page PM-Tax |PM-Tax Our Comment | Cases Procedure Daniel v HMRC [2014] UKFTT 916 (TC) Procedural irregularity must cause injustice for a rule 38 application to be successful. This was an application under rule 38 of the First-tier Tribunal procedural rules by Mr Daniel against a previous decision of the FTT which had found him to be resident in the UK and thereby not in continuous overseas employment. It also found HMRC’s discovery assessment to have been validly made. Mr Daniel’s application was on the grounds that the FTT failed to take into account, or after the hearing admit, material evidence and “an unexplained and unjustified expansion of the issues in dispute.” Whilst the Tribunal did not believe that the evidence could be construed in the way Mr Daniel submitted, it did find that the earlier constituted FTT’s failure to consider the evidence was a procedural irregularity. The Tribunal therefore considered the relevance of the irregularity to see whether an injustice was suffered and found that the FTT’s decision was not reached by reference to the number of days in the UK, but to the fact that Mr Daniel’s work could not have been ‘full-time.’ As such, the fact that the evidence was not considered by the FTT was not an injustice as the result would not have turned upon it. The FTT noted that there are two means of appealing a decision, the normal manner to the UT or where there is a procedural irregularity, via rule 38. The FTT disagreed with Mr Daniel’s argument (based on Criminal CPR rather than Tribunal rules) that an application under rule 38 had a lower threshold test to overcome. Instead, it found that the test was just different. The Tribunal then turned to consider the second ground of Mr Daniel’s application, which dealt with the FTT’s expansion of the issues in dispute. Mr Daniel argued that the FTT had made a procedural irregularity by couching part of its decision with reference to the negligence of Mr Daniel’s advisors. This was a matter that HMRC brought out in their skeleton argument but not their statement of case and so was challenged by counsel for Mr Daniel, but the FTT considered the issue anyway. Rule 38 requires there to not only be a procedural irregularity, but also an injustice. The injustice must, however, have been caused by the procedural irregularity and must be capable of being remedied by being set aside. The Tribunal pointed out that the attack on the judgment must be linked to the procedural irregularity and further, that the FTT must have recourse to all of the circumstances. This FTT found that this was an issue for appeal and not an application under rule 38. The Tribunal also held that even if it had been a procedural irregularity, the FTT’s decision considered Mr Daniel’s position on its own as well in any event. In doing so, there was no injustice flowing from any irregularity. Mr Daniel’s dispute with HMRC (which was covered in a previous edition of PM Tax), centred on whether he was in full-time work abroad so as to be non-resident in the UK, under the old residency rules. The FTT had found that Mr Daniel was negligent in making a claim that he was non-resident in the year he made a substantial capital gain. As a result of this FTT’s findings, Mr Daniel’s application to set aside the judgment of the first FTT was dismissed. Comment This decision shows that there is a high threshold for setting aside a decision of the FTT on the grounds of procedural irregularity and the appropriate way to challenge a decision in the vast majority of cases will be to appeal to the Upper Tribunal. The FTT dealt first with Mr Daniel’s argument that material evidence should have been considered. The material evidence, which came into Mr Daniel’s possession after the hearing, was a letter and a note of a telephone call. Mr Daniel argued that the evidence showed that specialist advice had been received from a residence specialist within the (then) Inland Revenue that it would be possible to remain within the scope of “full-time work abroad” and work in the UK. Read the decision CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 13 >continued from previous page PM-Tax | Cases Procedure (continued) Dock & Let Ltd v HMRC [2014] UKFTT 943 (TC) The 12 month time period for HMRC enquiring into a corporation tax return commences on the day after the return was filed. On 31 January 2012 Dock and Let filed its self assessment return for the accounting period ended 31 March 2011. On 31 January 2013, HMRC issued a notice (delivered by hand to the registered office of Dock and Let) under para 24 of Sch 18 ICTA, to enquire into the tax return of Dock and Let for the accounting period ended on 31 March 2011. specified day is excluded from the period; that is to say, that the period commences on the day after the specified day”. He also said “Where, however, the period within which the act is to be done is expressed to be a period beginning with a specified day, then it has been held, with equal consistency over the past forty years or thereabouts, that the legislature (or the relevant rule making body, as the case may be) has shown a clear intention that the specified day must be included in the period.” Dock and Let’s advisers claimed the notice was out of time as the deadline for issuing the notice of enquiry had expired on 30 January 2013. HMRC said that the notice was in time as the twelve month period for issuing the notice commenced on the day after the return was filed, so that in the present case, the 12 month period started at 00.00 on 1 February 2013 and ended at midnight on 31 January 2013. Judge John Clark said that applying Zoan v Rouamba, the time limit should be construed as excluding the date on which the return was filed so that the HMRC notice was served in time. He considered whether there was anything to suggest that the time limit in para 24 should be construed differently and decided that there was not. He said that the proper construction of para 24(1) of Sch 18 is that the twelve month period “from the day on which the return was delivered” is to be calculated by excluding the day on which the return was filed, so that, “from” is akin to “after”. Para 24 stated that “notice of enquiry may be given at any time up to twelve months from the day on which the return was delivered”. FTT Judge John Clark said that it was clear that the word “from” cannot be said to have a plain meaning and the issue of how the time limit should be calculated did not appear ever to have been considered by the tax tribunals. He did comment that he found it “surprising that HMRC left it to the very last minute to issue the enquiry notice, to the point where it was necessary to deliver the notice and covering letter by hand to the registered office of Dock and Let”. He also commented that the background meant that Dock and Let must have been aware of the possibility that an enquiry notice might be issued by HMRC and so the notice cannot be described as having come altogether “out of the blue”. The FTT referred to Zoan v Rouamba, where the Court of Appeal considered the case law on the question of the calculation of a period. In that case Chadwick LJ said: “Where, under some legislative provision, an act is required to be done within a fixed period of time “beginning with” or “from” a specified day it is a question of construction whether the specified day itself is to be included in, or excluded from, that period. Where the period within which the act is to be done is expressed to be a number of days, months or years from or after a specified day, the courts have held, consistently since Young v Higgon (1840) 6 M&W 49, that the Comment This case confirms the basis on which HMRC have applied time limits and which was understood to be the accepted position. What is surprising is that this appears to be the first time the issue has been considered by the tax tribunals. Read the decision CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 14 >continued from previous page PM-Tax PM-Tax | Our| Our Comment Cases Substance HMRC v University of Huddersfield [2014] UKUT 0438 (TCC) University’s tax avoidance scheme fails under abuse of rights principle. The University of Huddersfield primarily made exempt supplies of education. However, it also made a small proportion of VAT-able supplies and so was able to recover a small proportion of the input VAT on its general overheads. The University acquired a derelict mill with the intention of refurbishing it. However, the University knew that if it paid the refurbishing contractors in the ordinary way, it would only be able to recover a small proportion of the input VAT. activity to find that the scheme, in essence, worked. It held that the current case was indistinguishable from Weald Leasing and so avoided being abusive under Halifax principles. HMRC appealed to the UT, which found that the FTT decision should be overturned. In finding for HMRC, the UT noted that the facts relating to the University’s transactions were distinguishable from Weald Leasing. The UT noted that Weald Leasing concerned spreading irrecoverable VAT over the life of a lease, which is not an abuse, whereas, the FTT should have looked to its earlier finding of fact that the University intended to collapse the leasing arrangements and thereby avoid paying the VAT under them. The University entered a scheme to mitigate its VAT liability. Through the scheme, the University set up a trust, with former employees as trustees and the University as beneficiaries. The University leased the property to the trust which in turn leased the property back to the University. Both the University and the trust opted to charge VAT on the property and the leases were drawn up so that they could be terminated at any time. The University then contracted with a subsidiary company that was not part of its VAT group for it to carry out the refurbishment of the building. That subsidiary in turn contracted with third party builders who carried out the needed work. The University made a claim for the VAT it paid to the underlying company which HMRC later questioned. Next the UT noted that it was wrong for the FTT to consider only the collapse of the leases separately. The FTT should have considered the whole overall effect of the transaction. In this regard, the FTT should have noted that the CJEU was not asked to look at the abuse of rights position and had made clear that its decision was subject to that issue. The UT then turned to whether the scheme was abusive under the Halifax principle. The second limb of the Halifax test was admitted by the University. It had intended to obtain a tax advantage, and that advantage - the ability to claim VAT which the University would not normally be able to, was obtained. In 2002 the FTT found that there was no commercial purpose to the transaction other than obtaining a tax advantage. The FTT found no basis in the University’s argument that the commercial purpose of the transaction was to use the property expertise and experience of the trustees. However, the FTT referred the case to the CJEU, to determine whether the lease and leaseback were economic activities and whether they constituted a taxable supply. The UT had to deal with whether the scheme was contrary to the purpose of the VAT Directive. The UT found that the first purpose of the Directive was, per A-G Maduro, “that a taxable person must not be entitled to deduct or recover the input VAT paid on supplies received for its exempted transactions.’ Maduro’s opinion was adopted by the court in Halifax and the UT found that the University should not able to deduct input VAT where it would not normally have been able to do so. Otherwise the UT said, quoting Halifax, it “would be contrary to the principle of fiscal neutrality and, therefore, contrary to the purpose of those rules.” The CJEU said that there was an economic activity and a taxable supply in the leases themselves. The decision relied on Weald Leasing to find that the economic activity of entering into a lease is not ignored just because it creates a tax advantage. The CJEU was not asked to decide on whether the transaction was abusive. When the case was referred back to the FTT in 2013, it found in the University’s favour. It relied on the fact that there was an economic CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 15 >continued from previous page PM-Tax | Our Cases Substance (continued) HMRC had also argued that circumventing anti-avoidance provisions amounted to an abuse. On this point the UT was not sure. It pointed out that there is a strong argument that domestic anti-avoidance provisions are only ancillary to the main purpose, but not in themselves a purpose. It is possible to argue that the abuse doctrine only applies to EU law provisions, and not domestic law provisions. The UT said that it would have needed to make a direction to the CJEU to decide this point. However, as it had already found in HMRC’s favour that there was an abuse, it merely reserved judgment on this issue. University and the trust, or disregard the lease and underlease instead, the UT opted for the latter. This enabled the University to recover a small amount of input VAT because it was partially exempt, rather than none at all if the options to tax had been disregarded. Comment The decision confirms that structuring with leases, where you intend to obtain an absolute VAT saving is abusive, whereas using a lease to spread irrecoverable VAT – as in the Weald Leasing case, is not. Read the decision Having found abuse, it redefined the transactions to remove the tax advantage unfairly obtained by the scheme. Although there were two options, to either disregard the options to charge VAT by the CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 16 >continued from previous page PM-Tax | Our Cases Substance (continued) Société Fonderie 2A v Ministre de l’Économie et des Finances (C-446/13) Goods sent by an Italian manufacturer to France to be finished and then sent on to a customer were supplied for VAT purposes in France. Fonderie 2A was an Italian metal manufacturer which supplied goods to a French customer. Before the goods were dispatched to the French customer, Fonderie 2A would send the goods to another company in France called Saunier-Plumaz for them to be painted and then sent directly from there to the French customer. The CJEU had to decide whether the supply to the customer in France was made in Italy, where Fonderie 2A was located or in France, where the finishing paint work was carried out. The CJEU noted that “the place of supply of goods is to be deemed to be ‘the place where the goods are at the time when dispatch or transport to the person to whom they are supplied begins’”. Fonderie 2A invoiced the French customer for the full value of the goods, as painted. Saunier-Plumaz invoiced Fonderie 2A for its finishing work and both payments were subject to VAT. Fonderie 2A applied to the French authorities for a VAT refund under the Eighth Directive of the VAT charged by Saunier-Plumaz. Fonderie 2A’s claim could only succeed if it had supplied no goods or services in France. In Fonderie 2A’s situation, the CJEU said the dispatch to the French customer only occurred when Saunier-Plumaz sent the items to the customer, and not when Fonderie 2A sent them to Saunier-Plumaz. Accordingly, the CJEU found that the place of supply by Fonderie 2A was where Saunier-Plumaz was located (ie in France) as it was only from Saunier-Plumaz’s location that the goods were supplied to the French customer for VAT purposes. The French tax authorities rejected the claim on the ground that Fonderie 2A was deemed, under French law to have supplied the goods in France (on account of Saunier-Plumaz’s involvement in the arrangement). The French courts rejected Fonderie 2A’s claim and the matter was referred to the CJEU. Comment Any businesses which arrange for goods to be dispatched to customers from a subcontractor’s premises in another EU member state need to be aware of the implications of this decision. Read the decision CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 17 >continued from previous page PM-Tax | Our Cases Substance (continued) Hirst v HMRC [2014] UKFTT 924 (TC) An individual was an employee of a company for entrepreneurs’ relief purposes, even though not formally appointed as such. Mr Hirst was a shareholder and director of a company but ceased to be a director in December 2007. He sold his shares in July 2009 and claimed entrepreneurs’ relief in respect of the capital gain. HMRC denied the claim on the basis that Mr Hirst was not an employee or director of the company in the 12 months before the shares were sold, as required by the entrepreneurs’ relief legislation. However, the FTT decided that Mr Hirst was an employee. Mr Hirst agreed to provide services to the company and there was consideration in the form of an agreement to pay commission (though none was actually paid) and non-cash remuneration as a result of the provision of company assets to him. He was also under the control of the company and the FTT considered that there were no facts which were inconsistent with an employment relationship. He was therefore able to claim entrepreneurs’ relief. After his resignation as a director, Mr Hirst had continued to be involved in sourcing new business for the company. He retained a laptop and phone provided by the company and the company continued to pay for his home internet access. He continued to receive board packs and liaised with the CEO and contributed to the strategy of the company. Mr Hirst claimed he was a de facto director of the company and was an employee. Comment This case is a reminder of the importance of ensuring that an employment relationship continues if a shareholder is to claim entrepreneurs’ relief on a sale of shares. In this case, although there was no formal employment relationship, Mr Hirst was lucky and the FTT was prepared on the particular facts to treat him as an employee. However, it will always be safer to rely on a formal employment relationship. The FTT decided that Mr Hirst was not a de facto director. In the case of Smitherton Ltd & Naggar v Townsley and others [2014] EWCA Civ 939, Arden LJ said of the test of whether an individual was a de facto director; “The question is whether he was part of the corporate governance system of the company and whether he assumed the status and function of a director so as to make himself responsible as if he were a director”. The FTT found that Mr Hirst’s suggestions and proposals were considered by the board and he was consulted on some issues but decisions were made by the board. His influence was commensurate with, but limited to, that of a significant shareholder and he was therefore not a de facto director. Read the decision CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 18 >continued from previous page PM-Tax | Our Cases Substance (continued) PSC Photography Limited v HMRC [2014] UKFTT 926 (TC) Company had a reasonable excuse for late payment of PAYE as a result of cash flow difficulties caused by unforeseen business setbacks. PSC Photography Limited (PSC) failed to make monthly payments of PAYE on time in 2012/2013 (although the total was paid in full, with each of the payments being made fairly soon after the due dates) and, as a result, HMRC imposed a late payment penalty. PSC appealed the penalty to the FTT, seeking to establish that it had a reasonable excuse for the late payments. The FTT found that the specified events above were the direct cause of the problems that PSC encountered in 2012/2013 and that it was not unreasonable for PSC to be taken by surprise by these events. Although PSC took emergency steps to remedy its financial situation, including selling its building, this did not prevent the cash flow difficulties PSC suffered which resulted in late monthly payments of PAYE. PSC’s main business is providing photographic work for major high street retailers and it secured a lucrative contract with a client, TR Lewin, in November 2011. However, the project was delayed in 2012 and later terminated. This was a major setback for PSC which had retained staff to work on the project, who were still being paid despite the termination of the project. Although PSC went on to secure a further lucrative contract, the termination of the TR Lewin project had an adverse short term effect on PSC’s cash flow. The FTT found that PSC did therefore have a reasonable excuse for late payment and PSC’s appeal against the late payment penalty was consequently upheld. Comment This case provides an example of when a business might have a reasonable excuse for late payment of PAYE, such that a late payment penalty may be successfully appealed. However, it should be noted that, as the FTT suggested in its judgment, general and unspecified cash flow difficulties are unlikely to amount to a reasonable excuse. What was key here was that PSC pointed to two specific unforeseen events which “severely affected” the business and directly caused the cash flow difficulties leading to late payment. PSC’s financial position was then worsened by its bank abruptly changing its banking arrangements in November 2012, cancelling PSC’s overdraft facility and imposing a monthly repayment requirement which was an unexpected financial strain on the business. Read the decision CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 19 >continued from previous page PM-Tax | Cases Substance (continued) Forsyth v HMRC [2014] UKFTT 915 Compromise agreement payment on termination of ex-employee’s private health scheme membership was “employment income”. Mr Forsyth was employed by Nestlé until his retirement in 1995, after which it was agreed that he would continue to enjoy the benefits of the firm’s private health scheme for himself and his family in return for a contribution. In 2009, Nestlé terminated Mr Forsyth’s membership by compromise agreement, under which Mr Forsyth received a payment of just under £30,000 in settlement of his and his family’s entitlement to medical cover under the scheme. The FTT found that it was chargeable under another provision – namely it was chargeable as a “relevant benefit” under an “employer-financed retirement benefits scheme”. The definition of “scheme” includes an agreement and therefore included the compromise agreement. The payment under the agreement fell within the definition of a “relevant benefit” under such a scheme, as a lump sum paid to Mr Forsyth after his retirement in connection with his past service for Nestlé (as the payment would not have arisen but for his employment with the company). In his self-assessment tax return for that year, Mr Forsyth claimed that the compromise agreement payment was compensation for the surrender of his and his family’s rights under the scheme and should be treated as a capital gain, split equally between himself and his wife and liable to capital gains tax after the deduction of the annual exemption. This was challenged by HMRC which found that the amount should instead be liable to income tax. As the payment fell within this income tax provision it could not be treated as a capital gain or a termination payment and the FTT held that the full payment was be treated as employment income of Mr Forsyth for that year, liable to income tax. Comment This case demonstrates the scope of what might constitute a benefit under an employer-financed retirement benefits scheme – essentially any lump sum provided under any agreement or scheme after the retirement of a former employee in connection with past service. Where a payment is caught by these provisions, the payment will not be taxable as a capital gain (with the annual exemption available) or a termination payment (with the £30,000 threshold available); the whole payment will be liable to income tax as earnings. Mr Forsyth appealed to the FTT arguing that the amount should be subject to capital gains tax but that, in the alternative, it should be treated as a payment on termination of employment and only subject to income tax in so far as it exceeded the £30,000 tax free allowance in respect of such payments. The FTT did not agree and dismissed Mr Forsyth’s appeal. It cited the legislative position that payments will not be subject to capital gains tax if they are otherwise liable to income tax. It then turned to the relevant income tax legislation and noted that a payment will only be treated as a payment on termination of employment (such that the £30,000 threshold would be available) if it is not chargeable to income tax under any other provision of the relevant income tax legislation. Read the decision CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 20 >continued from previous page PM-Tax | Cases Substance (continued) ING Intermediate Holdings Ltd v HMRC [2014] UKFTT 938 (TC) The provision by a bank of a ‘no frills’ deposit account is a supply of services. ING Intermediate Holdings Ltd (ING) was the representative member of ING bank’s UK VAT Group. It was a UK company but had Dutch companies (referred to as IDUK) within the VAT group. ING claimed a repayment of input VAT amounting to over £6 million in the period from 10/02 to 03/11. HMRC rejected the claims. The Tribunal found that despite the receipt of a loan not being a taxable supply, the provision of banking services requires more than just a loan being provided and is therefore a supply. However, although the parties accepted that providing a current account was a supply of services, ING argued that providing a deposit account was not, because ING had no walk in branches and the ways in which depositors could access their funds were limited. IDUK carried on a retail banking trade in the UK taking cash deposits from private individuals. It invested the money in long term bonds and securities and made profits by receiving a higher rate of interest on its investments than it was required to pay to its depositors. However the FTT found that IDUK made supplies of services to depositors. The lack of branches was not relevant as ING had an extensive internet platform and offered telephone services. Judge Barbara Mosedale said that “This was more than a mere receipt of loaned money by IDUK. Fundamentally, while the account could not be operated in exactly the same way as a deposit account with a ‘high street’ bank, it was very similar in essentials”. The cost of taking deposits (and therefore the VAT incurred) was substantially greater than the costs associated with IDUK’s investment activities. ING claimed that IDUK was making supplies within the meaning of article 3(a) of the VAT (Input Tax) (Specified Supplies) Order 1999 when its investment arm invested in non-EU financial instruments. ING argued that the VAT on services purchased by IDUK to support its deposit taking activity in the UK (such as the marketing, administration, IT services and property costs) were business overheads and therefore under s 26(2)(c) VATA were recoverable in part because IDUK made some specified supplies. The FTT said that even though IDUK did not charge its depositors any fees, IDUK’s supplies of deposit account facilities were made for a consideration, the consideration being the customer depositing the money. Judge Mosedale said that this was a contract of barter: “The bank provides the deposit account facilities because the customer deposits money with it; the customer deposits his money with the bank because the bank provides him with the deposit account facilities”. IDUK argued that in taking deposits it was acquiring the funds to use in its business and not making supplies – on the basis that taking a loan was not a supply. The FTT further decided that the loan was provided ‘for’ the banking services (as well as the interest) as customers would not have provided the non-cash consideration (the loan) without the bank having provided the banking services. The FTT said that the value of the supply of the bank’s services should be calculated by what the bank was prepared to expend on making those services. HMRC argued that the VAT on the costs which were incurred to support the deposit taking activity were attributable to exempt supplies of banking services and therefore irrecoverable, irrespective of the question whether IDUK actually made any specified supplies with respect to its investments or whether making those investments amounted to an economic activity. Accordingly, ING’s appeal failed because IDUK’s input tax, “even though incurred with an eye to IDUK’s overall business, had a direct and immediate link to the exempt supply by it of banking services.” As IDUK made supplies to retail banking customers in the form of banking services, the input VAT paid on the expenses was attributable to the provision of exempt banking services and was therefore not recoverable. Comment This case clarifies that the VAT position for those operating deposit accounts online or by phone is no different to the traditional bank or building society account operated by an institution with a high street presence. Read the decision CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 21 PM-Tax | Events Events Autumn Statement Breakfast Seminar The seminars will be held at the following locations: London Pinsent Masons LLP 30 Crown Place London, EC2A 4ES (Directions here) The Chancellor’s Autumn Statement will take place this year on 3 December. To discuss some of the key themes of the speech and to provide crucial insight into the tax implications of measures announced, Pinsent Masons is hosting a breakfast seminar on the morning of 4 December 2014. Join us to digest the speech and to discuss what the Autumn Statement really means for business and the wider economy. Thursday 4 December 2014 Pinsent Masons LLP, 30 Crown Place, London EC2A 4ES 8.00am Registration and Breakfast 8.30 – 10.00am Seminar To attend please contact Marina Dell by clicking here. Business Network seminars in London, Surrey, Middlesex & Kent Pinsent Masons Tax Investigations and Disputes team are pleased to announce a series of seminars on current tax investigation issues and VAT aimed at tax professionals, including accountants, tax practitioners, solicitors and other intermediaries and advisers. Each seminar will provide an update on recent developments in the areas of tax investigations and VAT, and will include the following: •VAT – “Top Tips” for owner-managed businesses •An update on tax avoidance – to settle or wait? •FATCA (Foreign Account Tax Compliance Act) – the implications for clients and their advisers given the impending exchange of information with HMRC Monday 3 November 2014 12.45pm until 5.30pm Surrey Tuesday Sandown Park Racecourse 4 November 2014 Sandown Park, Portsmouth Road Esher, Surrey KT10 9AJ (Directions here) 8.15am until 1.00pm Middlesex Grim’s Dyke Hotel Old Redding, Harrow Weald Middlesex, HA3 6SH (Directions here) Wednesday 5 November 2014 8.15am until 1.00pm Kent Thursday Marriott Tudor Park Hotel 6 November 2014 Ashford Road, Bearsted Maidstone Kent, ME14 4NQ (Directions here) 8.15am until 1.00pm For membership details of our Business Network, please email [email protected] Please find a link to the Seminar programme here. To register please contact Marina Dell. •An overview and update of HMRC’s offshore tax compliance strategy Public Accounts Committee conference Heather Self of Pinsent Masons has been asked to speak at a conference that the Public Accounts Committee (PAC) is holding in London on Thursday 30 October on the impact of globalisation on taxation. The conference is being held to increase the PAC’s understanding of the complex issues involved and provide an opportunity for key stakeholders to contribute to the debate. The PAC says that the conference will influence the work that it will do for the remainder of the Parliament and the PAC plans to produce a conference report which it can use to feed back its views and ideas to key policy makers. Heather will be part of a panel for a discussion on Tax and Morality. CONTENTS BACK NEXT 7364 PM-Tax | Wednesday 22 October 2014 22 PM-Tax | People People Fiona Fernie We speak to Fiona Fernie, who joined us this month as a Partner (non-lawyer) and our new Head of Tax Investigations. What’s your background? I’m a chartered accountant (hence the ‘non-lawyer’ bit in my job title). I’ve joined from BDO where I was part of the leadership of the Tax Investigations team. I’ve spent the last 10 years of my career focusing on complex disclosures with a range of high-profile non domicile clients and corporates. Prior to BDO, I worked for PwC. Why Pinsent Masons? Pinsent Masons has one of the largest multidisciplinary Tax practices of any international law firm and I am delighted to have joined this award-winning team. Unusually for a law firm, Pinsent Masons has a strong and growing tax investigations team. Tax Director Paul Noble joined the firm last month and I am looking forward to working with Paul and the rest of the team to build the practice further. The team already has an enviable reputation and strong brand which will give us an ideal launch pad to move onwards and upwards! What are the current issues in tax investigations? New disclosure arrangements (sometimes termed “UK FATCA”) agreed between the UK and its Crown Dependencies and Overseas Territories, which come on stream between 2014 and 2016, mean that it is even more important than ever for UK residents with offshore assets that have not been declared to HMRC to get their affairs in order. “Coming clean” now and sorting out your affairs, if done with the help of our experienced team, can lead to significantly reduced penalties and avoid the risk of criminal proceedings. However, it is not just individuals that we advise. HMRC is taking an increasingly aggressive approach and we are able to help corporate clients to deal with a whole range of HMRC interventions from business compliance reviews to full blown investigations – including the tax implications of fraud. We also help Trustees to ensure that the Trusts they administer are fully tax compliant and we can advise them on their obligations regarding FATCA. Tax professionals who may have clients affected by these issues can attend our forthcoming seminars for more information. What do you do outside of work? I have a keen interest in interior design and have spent the last couple of years gutting and refurbishing our house including making most of the soft furnishings myself. I also play tennis (badly), and golf (also badly)! Fiona Fernie Partner (Non-Lawyer) T: +44 (0)20 7418 9589 E: [email protected] CBI Great Business Debate The CBI’s Great Business Debate campaign has started a spotlight period focused on business and tax. Opinion & analysis pieces from businesses and NGOs will be coming out daily on their website over the next few weeks that might be of interest to you. If you are on Twitter you can find them @bizdebate. The content includes a factsheet, ‘mythbusters’, analysis pieces and opinion piece articles from businesses including RwE Npower, BP, PwC, KPMG and Pinsent Masons, as well as Oxfam and Christian Aid. Tell us what you think We welcome comments on the newsletter, and suggestions for future content. Please send any comments, queries or suggestions to: [email protected] We tweet regularly on tax developments. Follow us at: @PM_Tax PM-Tax | Wednesday 22 October 2014 CONTENTS BACK This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered. Pinsent Masons LLP is a limited liability partnership registered in England & Wales (registered number: OC333653) authorised and regulated by the Solicitors Regulation Authority and the appropriate regulatory body in the other jurisdictions in which it operates. The word ‘partner’, used in relation to the LLP, refers to a member of the LLP or an employee or consultant of the LLP or any affiliated firm of equivalent standing. A list of the members of the LLP, and of those non-members who are designated as partners, is displayed at the LLP’s registered office: 30 Crown Place, London EC2A 4ES, United Kingdom. We use ‘Pinsent Masons’ to refer to Pinsent Masons LLP, its subsidiaries and any affiliates which it or its partners operate as separate businesses for regulatory or other reasons. Reference to ‘Pinsent Masons’ is to Pinsent Masons LLP and/or one or more of those subsidiaries or affiliates as the context requires. © Pinsent Masons LLP 2014. 7364 For a full list of our locations around the globe please visit our website: www.pinsentmasons.com
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