Finance Bill 2015 Banking & Capital Markets Finance Bill Implications Headlines Following on from last week’s Budget announcement, today has seen the publication of Finance Bill 2015, which is expected to receive Royal Assent on 27 March 2015. We do not expect to see any significant changes between the Finance Bill and the final legislation. Most of the main changes in the Finance Bill affecting the banking industry are in line with previous announcements. They include: an increase in the bank levy rate, restrictions on the utilisation of tax losses and the deductibility of VAT relating to foreign branches. All these are changes which are likely to increase the tax burden on the industry. Today saw the publication of the new diverted profits tax (DPT), the introduction of which was first announced in the 2014 Autumn Statement. DPT is intended to apply to multinationals (including banks, capital markets businesses and other financial sector groups) which generate profits through business activities in the UK but where there are arrangements which divert taxable profits away from the UK. Not all developments announced to date are included in Finance Bill 2015 but they may appear in another Finance Bill later this year, with further legislation expected following May’s General Election. These measures include: a corporation tax disallowance for compensation payments for mis-selling of products such as payment protection insurance, changes regarding the automatic deduction of income tax by banks and increased flexibility of the ISA rules. However, the new ‘principles-based’ targeted anti-avoidance rules that were expected as part of the ongoing modernisation of loan relationship and derivatives were not included and will presumably fall to be included in a post-election Finance Bill. Bank levy rate increase Finance Bill 2015 includes provisions enacting the announced increase in the rate of the bank levy. The rate will be increased from 0.156% to 0.21% for short term chargeable liabilities and from 0.078% to 0.105% for chargeable equity and long term liabilities. The increased rates will apply from 1 April 2015. For banking groups with accounting periods straddling this date, their chargeable equity and liabilities should be apportioned between the periods falling before and on or after 1 April 2015, with the appropriate bank levy rate applied to each notional period. The instalment payment provisions have also been amended for accounting periods straddling 1 April 2015 to ensure that the increased rates are ignored for the purposes of calculating any bank levy instalments due prior to 1 April 2015, and that instalment payments due on or after 1 April 2015 are adjusted to reflect the increased rates. Bank loss relief restriction The legislation published today includes some changes to the new bank loss relief restriction rules which were originally announced in December 2014 reflecting the result of the consultation. As announced, the Government will restrict the amount of banks’ annual taxable profits that can be offset by carried-forward losses to 50% from 1 April 2015 (i.e. for losses accrued as at that date only). As trailed at the Budget, a new allowance for affected building societies will also be introduced. The allowance provides for building societies to use a carried forward loss of up to £25mn without applying the new restriction. An additional provision has been inserted into the targeted anti-avoidance rule (TAAR) which now requires the presence of arrangements the main purposeof which is to secure a corporation tax advantage in order for the rule to apply. This should narrow the scope of the TAAR. A number of representations were made to HMRC during the consultation that the original legislative mechanics were drafted in a way which made it unclear how the new provisions were intended to interact with group relief. The issue is whether the rules required the taxpayer to consider a ‘hypothetical’ question (namely how much group relief could in theory be surrendered to the bank) or a ‘real world’ question (namely how much group relief has actually been surrendered to the bank). We understand that HMRC’s intention is that this should be the latter ‘real world’ test and we hope that this will be confirmed in the final form of the relevant guidance when this is published. In addition, the legislation has now been amended to the effect that the amount of loss that is available for surrender by way of group relief is to be ascertained after the determination of the amount of losses that a bank is able to carry forward, thus removing some perceived circularity in the original drafts on this point. Corporate debt and derivatives The consultation on reforming the taxation of corporate debt and derivative contracts has been ongoing for some time now and has already given rise to some legislative change. Some draft Finance Bill clauses were released in December 2014 as part of the project. The changes are intended to align the tax treatment of financial instruments more closely to the amounts going through companies’ profit and loss accounts. The previous clauses also included new ‘principles-based’ targeted anti-avoidance rules that were expected to come into force from 1 April 2015 but it is unclear whether these measures will now be deferred, given that the provisions, as with the majority of the draft Finance Bill clauses Banking & Capital Markets Finance Bill Implications previously released, have not been included in the Finance Bill. Diverted profits tax The Finance Bill today includes full updated legislation for the new DPT, the introduction of which was first announced in the 2014 Autumn Statement. The new tax will be charged at a rate of 25% and will come into force from 1 April 2015. DPT is intended to apply to multinationals which generate profits through business activities in the UK but are party to arrangements which divert taxable profits away from the UK. Following the publication of draft DPT legislation on 10 December 2014, representations were made by industry and advisors (including EY). Partly in response to these representations, a number of changes have been made to the draft legislation. The structure of the final legislation published has been significantly reworked and there have been some significant changes in the details of certain aspects of the rules. Many of the key changes had been previously announced by HMRC in a briefing note of 20 March 2015. ► Changes have been made to the ‘insufficient economic substance’ test. However, these changes are more limited than anticipated. It appears that considerable uncertainty will remain regarding the application of this test in a financial services context, in particular with regard to the quantification of the ‘financial benefit’ of a transaction. ► The requirement for taxpayers to notify HMRC of potential liability to DPT have been significantly narrowed from the original draft. This will be welcomed by many taxpayers, as concerns had been expressed that the notification rules in the original draft legislation imposed a notification requirement in many cases where no charge to DPT would ultimately arise. ► The legislation published today expands the scope of the avoided permanent establishments rule to include sales to non-UK customers that relate to UK business activity, and to sales of property (including land). ► UK-parented groups or sub groups have suffered a UK CFC charge could still be subject to a DPT charge. Credit will, however, be available where a company has paid a CFC charge. HMRC has indicated that updated guidance notes on the application of the DPT rules will be issued in due course, and these may provide more clarity on the application of the rules. 2 Economic substance It was the stated intention of the Government that the arrangements to which DPT should apply are ones that lack economic substance and are designed to reduce UK tax. The draft legislation published on 10 December 2014 included an ‘insufficient economic substance test’, which could be failed where any of three separate conditions were met. The first two of these assessed whether the tax reduction from a transaction was greater than the non-tax ‘financial benefit’ of the transaction, and the third test compared the contribution of a person’s staff to the ‘economic value’ of a transaction. Representations had been made that this test was particularly difficult to interpret. In particular, in the context of banking and capital markets businesses which enter into transactions to use capital efficiently, or engage in the transfer of risk, it is unclear how the contribution of economic value by staff should be assessed. In addition, where financial services sector businesses enter into transactions because they are required to do so by their regulators, it is unclear how this should be factored in to an assessment of the ‘financial benefit’ of a transaction. So, for example, a banking group might establish a shared services centre in order to meet a regulator’s requirement for recovery and resolution planning but chose to locate that company in a low tax jurisdiction. HMRC stated in its briefing note of 20 March 2015 that amendments would be made to the legislation to make it clear that the insufficient economic substance test would not failed where the majority of income earned by a company, in relation to a particular material provision, reflects ongoing work carried out by the company. Based on this briefing note, it may have been inferred that the final legislation would create delineation between profits arising from labour and profits arising from passive asset holding and that profits arising from labour would fall outside the ‘insufficient economic substance’ test. Although the Finance Bill published today does include amendments to the insufficient economic substance test, these changes appear to be more limited than anticipated. The structure of the test is substantially unchanged from that included in the original draft legislation. In particular, it is still the case that the test may be failed where any of the three conditions mentioned above are met. The only substantial change is to narrow the scope of the test which looks at the contribution of staff; this now operates such that Banking & Capital Markets Finance Bill Implications where the income attributable to the ongoing functions or activities of the person’s staff exceed the other income attributable to the transaction, then this test will not be failed. However, it remains the case that the two ‘financial benefit’ tests must also be passed. If the ‘financial benefit’ of a transaction exceeds the tax reduction arising from the transaction, then these tests may be failed, resulting in the insufficient economic substance test as a whole being failed. Thus, where there are uncertainties regarding the quantification of ‘financial benefit’ in a banking and wider financial services context, these appear likely to remain. We await publication of the updated HMRC guidance, as it is possible that this, once available, will provide further clarity in this difficult area. Narrowing the notification requirement The assessment and collection procedure is based on a duty on the taxpayer to notify. The notification rules included in the draft legislation released in December were widely criticised for being too broad and potentially imposing a notification requirement in a wide range of cases where no ultimate DPT charge would arise. The Finance Bill provides that there will be no duty to notify for an accounting period if: ► HMRC has confirmed that there is no duty to notify ► it is reasonable for the company to conclude that sufficient information has been supplied to enable HMRC to decide whether to give a preliminary notice for that period and that HMRC has examined that information (whether as part of an enquiry into a return or otherwise), or ► it is reasonable for the company to conclude that no charge to DPT will arise. However, if the only reason why it is reasonable for the company to conclude this is the possibility of future transfer pricing adjustments (which may reduce or eliminate the DPT charge), it will still have to notify. Where the tax mismatch test is applicable, an arrangement which passes the test (i.e. tax has been paid on the relevant amount at 80% or more of the UK rate) will not be subject to the notification requirement. HMRC has amended the legislation so that, in the first period after the legislation comes into force, the last date for notification will fall six months after the end of the relevant accounting period. For subsequent periods, notifications will be required to be made within three months of the end of the period. 3 The draft legislation has also been amended so that once the company has notified for one period, it does not have to notify for the next period provided that there has been no change in circumstances material to whether a charge to DPT arises. This will also apply where a company has not notified because it has previously supplied sufficient information and there has been no material change in circumstances. These changes represent a welcome relaxation of the notification rules that under the original draft would have required many companies to notify each accounting period even where it was clear that they would ultimately not be liable to DPT. Taxpayers were potentially faced with the possibility of having to make multiple notifications in respect of transactions where ultimately no liability was expected to arise. Avoidance of a UK taxable permanent establishment DPT is intended to address contrived arrangements which avoid a UK permanent establishment (“PE”) of a non-UK resident company, and in such cases applies a charge as if there were an actual UK PE. The avoided PE rule was limited, in the draft legislation, to cases where there is activity in the UK in connection with supplies of goods or services to UK customers. As announced in the HMRC briefing note of 20 March 2015, the scope of this rule has been expanded by removing the reference to UK customers. The effect of this change should be that the location of any customers of the non-UK resident company is no longer relevant in determining whether the rule applies; under the amended legislation, the existence of activity in the UK in connection with supply of goods, services or property will be sufficient for the avoided permanent establishment rule to potentially apply (provided that the relevant conditions are met). Banks may need to revisit their position given they no longer have to identify UK customers in order for the tax to apply to them. extent they are already taken into account in computing corporation tax profits. Furthermore, the legislation has been amended to provide an exclusion where UK-related expenses (i.e. those referable to UK activity) are below a de minimis amount of £1mn. This helps to address low risk situations where the UK sales threshold may be exceeded. This new exemption is welcome since it should take out of scope circumstances where executives visit the UK to oversee local subsidiaries that are fully within the charge to UK corporation tax. The meaning of ‘excluded loan relationship’ DPT will not now apply where the tax mismatch outcome is solely a result of differences in the way that debits and credits of a loan relationship are brought into account. This will also cover ordinary derivatives used solely to hedge these excluded loan relationships. It had been hoped that all derivative contracts would be excluded from the tax mismatch test rather than just hedging transactions since this would have been a welcome simplification of the rules particularly for the banking and capital markets sector where derivatives are so commonly employed, even in relatively straightforward scenarios. Clarifying rules for giving credit for tax paid The right for a company to claim credit for overseas tax paid on profits in respect of which a DPT liability arises has been extended so that credit can also be given for foreign tax paid by another company on those profits (eg where there is tax consolidation), as well as tax paid on those profits under both UK and overseas CFC regimes. Partnerships The draft legislation of 10 December 2014 did not specifically address the question of how the DPT rules should be applied in the context of structures involving partnerships. The Finance Bill clarifies the position by including a number of new provisions which set out how the rules apply to partnerships. The legislation has also been amended so that it applies to supplies of services, goods or other property, whereas the original draft legislation applied only to supplies of goods or services. This amendment is intended to clarify that sales of land and buildings can also give rise to an avoided PE. Specifically, it provides that where a foreign company is a member of a partnership, the avoided PE rule applies as if the trade of the partnership were carried on by the foreign company and supplies by the partnership are supplies of the foreign company. The avoided PE rules do not apply if the UK sales are less than £10mn (the sales threshold test).The original draft legislation aggregated connected party sales from UK activity when applying the £10mn sales threshold test. This has now been amended so that, in calculating whether the threshold has been breached, connected party sales are ignored to the Similarly, where a UK company is a member of a partnership, for the purposes of the rule regarding entities lacking economic substance, any provision made or imposed by the partnership is treated as being made or imposed by the UK company. Finally, the legislation deems the income or expenses of a person to include that person’s share of the income Banking & Capital Markets Finance Bill Implications 4 or expenses of any partnership of which it is a member. Anti-loss refresher provisions The legislation included in Finance Bill 2015 is the materially same as that published following the Budget. These rules are aimed at preventing groups from implementing ’loss refresher’ transactions whereby they convert carried-forward trading losses, non-trading deficits and/or management expenses into more versatile current period losses. The legislation applies to all groups, including banks and the wider financial services sector. It will be necessary for groups to consider whether the changes have any impact on any deferred tax assets in respect of accrued losses. The new rules apply where the arrangements have a main purpose of creating new profits to use up brought forward losses while also generating a current year loss to reduce other profits in the group. Furthermore, the rules only apply where it is reasonable to assume the tax benefit of the arrangements exceeds any commercial benefits of the transaction. The provision comes into effect where profits that arise on or after 18 March 2015 are set off against brought forward losses. The rules can, therefore, have effect for arrangements entered into prior to 18 March 2015 where these give rise to profits on or after this date. These provisions should be considered with respect to any arrangements that financial services groups undertake to accelerate the utilisation of carried-forward losses as a means of strengthening their regulatory capital position. There are specific rules which provide for the interaction of this new restriction with the targeted anti-avoidance provisions within the new bank loss relief restriction rules (see above). R&D tax credits Consistent with the Autumn Statement and Budget announcements, the Finance Bill contains provisions which increase the rate of the above the line R&D tax credit from 10% to 11% from 1 April 2015. Country by country reporting The legislation published following the Autumn Statement has been included unchanged in Finance Bill 2015 to implement the OECD recommendations on country-by-country reporting, which included a reporting template developed by the OECD as part of its Base Erosion and Profit Shifting (BEPS) initiative. Multinationals including banks and other financial services businesses with a parent company Banking & Capital Markets Finance Bill Implications in the UK will need to make an annual report to HMRC showing for each tax jurisdiction in which they do business (i) the amount of revenue, profit before income tax and income tax paid and accrued; and (ii) their total employment, capital, retained earnings and tangible assets. The legislation will allow the Government to make regulations at a later date once the OECD has completed its further work on how the reports should be filed and how the information in them may be shared between relevant countries. Of course, from 1 July 2014, UK Banks have already been reporting country-by-country data under the UK regime which transposed the Europe-wide regulatory requirement under Capital Requirements Directive IV (CRD IV) although the data is being reported in their financial statements or on their websites rather than to HMRC. Banks will need to continue to focus on ensuring that their systems will be ready for these additional reporting obligations. Late paid interest The measures previously announced on 3 December relating to ‘late paid interest’ remain unchanged in Finance Bill 2015. Those measures, insofar as they applied between related companies, are to cease to apply to loan relationships entered into on or after 3 December 2014. The rules remain in force, to a limited extent, in relation to existing loan relationships. However, deductions for amounts that accrue from 1 January 2016 will be given on an accruals basis in all cases and only amounts that accrued prior to that date will be capable of being deductible on a ‘paid’ basis. In addition, any material change in the terms of an existing loan, or in the identity of its creditor, prior to 1 January 2016 will be capable of bringing the new rules into effect early. There are corresponding amendments to the legislation on deeply discounted securities entered into between connected parties. Sale and leaseback As expected, legislation has been included in the Finance Bill that is intended to ensure that where an asset is acquired without incurring expenditure, an entitlement to capital allowances cannot be created by a sale and leaseback or connected party transaction. The legislation will have effect from 26 February 2015 once enacted. 5 EY Assurance Tax Transactions Advisory About EY Further information Should you have any queries or comments, please contact your usual EY contact or: Anna Anthony [email protected] 020 7951 4165 Andrew Bailey [email protected] 020 7951 8565 Mark Bennett [email protected] 020 7806 9257 Richard Clough [email protected] 020 7951 7601 Dan Cooper [email protected] 020 7951 5381 Oliver Davidson [email protected] 020 7951 1571 Lynne Ed [email protected] 020 7951 2893 George Hardy [email protected] 020 7951 0124 Neil Harrison [email protected] 0113 298 2596 Stephanie Lamb [email protected] 020 7951 1700 Andy Martyn [email protected] 020 7951 9539 Kevin Paterson [email protected] 020 7951 1347 Mark Persoff [email protected] 020 7951 9400 Rod Roman [email protected] 020 7951 1549 Julian Skingley [email protected] 020 7951 7911 Ben Smith [email protected] 020 7951 8144 Tom Passingham [email protected] 020 7951 2846 EY is a global leader in assurance, tax, transaction and advisory services. 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