Tax Update provides you with a round-up of the latest tax developments. Covering matters relevant to individuals, trusts, estates and businesses, it keeps you up-to-date with tax issues that may impact you or your business. If you would like to discuss any aspect in more detail, please speak to your usual Smith & Williamson contact. Alternatively, Ami Jack can introduce you to relevant specialist tax advisors within our firm.
1.1 Budget 2020
The new Chancellor delivered his first Budget on Wednesday 11 March, 500 days after the last UK Budget. Tax changes announced include a cut in Entrepreneurs’ Relief, recalculated pension annual allowances for high earners, and the abolition of VAT on digital publications, but the main tax rates remain unchanged.
Rishi Sunak’s first Budget delivered a wide range of tax reliefs, particularly to businesses in the UK. Although the income tax rates and personal allowance remain unchanged, the NIC thresholds have been increased and pension contribution restrictions have been relaxed, providing tax relief for individuals, and there were no changes to IHT. Businesses will benefit from expanded capital allowances, increased research & development relief and a higher employment allowance. Non-UK purchasers of UK residential property and large digital businesses will, however, face new tax burdens with the introductions of an additional SDLT surcharge and a digital services tax. Further announcements are expected at the Autumn Budget.
- Key points to note include:
- Entrepreneurs’ Relief lifetime limit reduced by 90%;
- time to pay arrangements for businesses affected by COVID-19;
- thresholds for pension tapered annual allowance calculation to increase;
- rate of research and development expenditure credit to increase;
- digital services tax to be introduced;
- new 2% SDLT surcharge on non-UK residents; and
- women's sanitary products to become VAT-free.
Summaries of the main announcements can be found in this newsletter, and for our full coverage of the Budget with commentary and analysis, please follow the link below.
1.2 Budget: time to pay arrangements - a concession for COVID-19
Time to pay (TTP) arrangements extend tax payment deadlines for taxpayers in financial distress. HMRC has set up a dedicated helpline to support businesses and the self-employed whose finances are affected by COVID-19. This includes the option to agree TTP arrangements where appropriate.
Any taxpayer unable to meet a tax payment deadline may apply for TTP arrangements. HMRC reviews applications and, if satisfied as to the taxpayer’s circumstances, will agree terms for an extended deadline. This will normally involve collecting regular instalments of tax over the extension period, which is rarely more than one year. Penalties are waived if the TTP deadlines are met, though interest generally applies.
The dedicated HMRC helpline can be used by any business or self-employed individual affected financially by COVID-19. The aim is to support taxpayers through temporary financial challenges, and TTP arrangements will be offered where appropriate. The Government has confirmed that late payment penalties and interest will be waived if a business has administrative difficulties in contacting HMRC or paying tax.
2. Private client
2.1 UT upholds judgment on transfer of assets abroad
The UT has upheld an FTT decision that a transfer of assets abroad (TOAA) charge applies to a transaction, in preference over the double tax treaty (DTT) under which a lower rate of tax would have been applied to the company’s income. It found that the income was deemed to be that of the individuals who had made the transfer, over which the UK had taxing rights.
An Isle of Man company, wholly owned by a trust created by the one of the taxpayer’s parents, entered into an agreement to buy a property in the UK, and paid a non-refundable deposit. Concerns were raised about the purchase, as generating trading income would have tainted the protected trust, and instead a company was incorporated in Mauritius (ABP) that completed the purchase such that the deposit was not lost. The taxpayers each took out a life policy with a Bermudan company that wholly owned ABP, and their entitlements under the life policies were linked to ABP. ABP went on to undertake further transactions and generated trading income, on which it paid tax in Mauritius at an effective rate of 3%.
HMRC issued assessments for income tax on the profits of ABP. The taxpayers accepted that they had made a transfer that fell within the TOAA provisions, but argued that they were exempt as the motive was not tax avoidance. The UT upheld the FTT finding that tax avoidance was a motive, as although there were commercial elements to the transactions, Mauritius was chosen for its low rate of tax.
The other ground of appeal was that the double tax treaty awarded taxing rights to Mauritius, and the taxpayers argued that the TOAA legislation did not override this. The UT agreed with the FTT’s conclusion that although Mauritius would have taxing rights over the company’s income, TOAA attributed the income to the individuals, and the UK had taxing rights over these UK residents, and considered what constituted deemed income.
Davies & Ors v HMRC  UKUT 67 (TCC)
2.2 FTT has no jurisdiction on PAYE credit
The FTT has found that its jurisdiction does not extend to the PAYE regulations, as they are a matter of public law. It could not therefore make a judgment as to whether or not taxpayers who had been in a disguised remuneration scheme should receive PAYE credits for tax that was not deducted by the intermediary.
The taxpayers had participated in a failed tax avoidance scheme, involving disguised remuneration by way of loans. They accepted the assessments to tax, but argued that a PAYE credit should be deducted, such as would have been paid by the relevant intermediary had it operated PAYE correctly on all remuneration.
The preliminary issue examined by the FTT was whether or not this issue fell within its jurisdiction. In general, it cannot judge matters of public law. The FTT found that the PAYE regulations apply only to matters of collection of tax, not assessment to tax, and thus fell without its jurisdiction. HMRC was free to apply its discretion on the point in question.
Higgs et al (Edge Group) v HMRC  UKFTT 117 (TC) (24 February 2020)
2.3 Budget: Entrepreneurs’ Relief lifetime limit reduced to £1m
The lifetime limit for Entrepreneurs’ Relief (ER) has been cut by 90% to £1m from 11 March, the date of the Budget. The new limit will also apply to some pre-Budget transactions, as an anti-forestalling measure was also announced.
Following intense speculation in the run up to the Budget, the Chancellor stopped short of abolishing ER, but instead reduced the lifetime limit from £10m to £1m. The new limit became effective immediately. HMT stated that over 80% of ER claimants will not be affected by the reduction. Previous transactions on which ER has been claimed will count towards the new limit, affecting serial entrepreneurs.
The limit may also apply to some pre-Budget disposals, as the Chancellor announced retrospective measures affecting a subset of transactions. These are primarily disposals that were designed to ‘bank’ ER, including where completion had not taken place before Budget day.
Our full coverage of this change can be found in our website Budget coverage.
2.4 Budget: thresholds for pension tapered annual allowance calculation to increase
Both the 'threshold income' and 'adjusted income' measures used to test whether or not an individual's annual pension contribution allowance will be tapered will increase by £90,000. The minimum amount an individual's tapered annual allowance can be reduced to will decrease from £10,000 to £4,000.
The announced £90,000 increase to both thresholds will see the current ‘threshold income’ measure rise from £110,000 to £200,000. This means that individuals with income below this level will not be affected by the tapered annual allowance. The current ‘adjusted income’ threshold will increase from £150,000 to £240,000. The tapering of an individual’s pension annual allowance will only begin when both the threshold income and adjusted income exceed these amounts.
The change was billed as a way to solve the problems with tax charges on NHS pensions, although it will apply to all individuals with these income levels. The minimum tapered annual allowance will also be decreased from £10,000 to £4,000.
Our full coverage of this change can be found in our website Budget coverage at the link below:
2.5 Budget: non-UK resident SDLT surcharge to be introduced in 2021
The Government has announced a 2% SDLT surcharge on residential property purchases in England and Northern Ireland by non-UK residents. This will apply from 1 April 2021 on top of current SDLT rates.
The Government has confirmed that the proposed SDLT surcharge for purchases of residential property in England and Wales by non-UK residents will be introduced with effect from 1 April 2021. The surcharge is expected to apply to purchases by individuals and ‘non-natural persons’, such as companies, trusts and partnerships, and will apply on top of existing SDLT rates. Funds raised will be used to address rough sleeping.
Our full coverage of this change can be found in our website Budget coverage at the link below:
3. PAYE and employment
3.1 Off-payroll working reforms delayed due to COVID-19
The extension of the off-payroll working rule reforms to the private sector has been delayed until 6 April 2021.
The Chief Secretary to the Treasury announced the delay as part of a package of measures intended to support businesses during the economic challenges caused by the spread of COVID-19. He confirmed that the reforms would not be cancelled and that the Government remains committed to this policy. The new rules had been scheduled to come into force in April 2020.
3.2 Budget: employment allowance increases
The increase in the employment allowance from £3,000 to £4,000 will take effect from April 2020.
The Government will increase the employment allowance, which is available to smaller businesses, from £3,000 to £4,000. As a result, eligible businesses and charities will be able to reduce their secondary class 1 NIC liabilities. It is estimated that this measure will increase the number of businesses and organisations with a nil NIC bill by 65,000. The Government anticipates that this measure will enable small, growing businesses to increase employment without incurring additional NIC liabilities.
3.3 Budget: review of changes to the off-payroll working rules (IR35)
The Government has responded to the recent review of changes to the implementation of the off-payroll working rules. It has confirmed that the changes will be implemented on 6 April 2020.
At Budget 2018, the Government announced that it would reform the off-payroll working rules in the private sector from April 2020. The reform shifts the responsibility for both assessing and communicating the employment status of a worker operating through an intermediary to medium and large clients. The aim of the reform is to ensure individuals who work like employees, but through their own personal service company (PSC), pay the same IT and NICs as individuals employed directly. The Government has recently reviewed the proposed reform and concluded the off-payroll working rules will be extended to medium and large businesses in the private and third sectors from 6 April 2020, as originally planned. A number of changes have, however, been made to support the successful implementation of the rules. These include:
- the rules apply to services provided from 6 April 2020 but not to payments made after this date that related to pre-6 April 2020 services;
- HMRC will not levy penalties for inaccuracies in the first 12 months where businesses take reasonable care to comply with the rules;
- group determinations are permitted if terms for groups of workers are identical; and
- HMRC will not use the new rules to open compliance checks into PSCs for tax years before 6 April 2020.
3.4 Budget: response to the independent loan charge review
The Government will accept all but one of the recommendations from the recent independent Loan Charge Review. This includes the refund of particular voluntary payments. Further action is planned to tackle disguised remuneration schemes.
A review of the loan charge was carried out in early 2020, and legislation to implement the recommendations of the loan charge was subsequently published. The key changes include:
- the loan charge will only apply to outstanding loans made between 9 December 2010 and 5 April 2019;
- it will not apply to loans made in tax years before 2016-17 where a ‘reasonable disclosure’ was made and HMRC failed to take any action to recover the tax;
- a scheme will be set up to refund certain voluntary payments made on or after 16 March 2016;
- if the loan charge does apply, an election will be available to enable taxpayers to spread their payments over three consecutive tax years; and
- the deadline for reporting disguised remuneration loans has been extended from 1 October 2019 to 1 October 2020.
The Government remains firm in its aim of tackling disguised remuneration schemes. A call for evidence will be issued shortly to help address this type of tax avoidance.
These changes will have retrospective effect from 5 April 2019.
3.5 Budget: review of Enterprise Management Incentives
The Government will undertake a review of the Enterprise Management Incentives (EMI) scheme to ensure that it is achieving its objective of supporting employment in high-growth companies.
The EMI scheme is intended to offer generous tax reliefs to employees and allow high-growth companies to attract and retain a talented workforce. The review will consider whether or not the EMI scheme is providing this support effectively, and if more companies should be able to access the scheme.
The announcement of a review suggests that the EMI scheme will continue to operate after the Brexit transition period.
3.6 Budget: Construction Industry Scheme reforms to prevent abuse
The Construction Industry Scheme (CIS) will be simplified and new measures will be introduced to prevent abuse. This will include clarifying the definition of a 'contractor' and preventing businesses from claiming CIS refunds to which they are not entitled.
Currently, if sub-contractors have been paid under deduction in the CIS regime they are able to claim a refund from HMRC at the end of the tax year. Legislation will be included in the Finance Bill 2020/21 to deny these refunds where the deductions cannot be evidenced or a sub-contractor refuses to correct a CIS return.
The Government has also indicated that it will:
- simplify the rules for deemed contractors;
- clarify the rules around what is an allowable deduction for expenditure on materials; and
- expand the scope of the penalties for supplying false information when registering for CIS.
4. Business Tax
4.1 Repair of underground gas pipes is not expenditure on land
A gas company has lost a claim for Land Remediation Relief (LRR) on the repair of underground iron gas pipes. The repair works amounted to the replacement and improvement of chattels, not the remediation of land.
The taxpayer, a regional gas distribution network, acquired a large system of gas pipes from its parent company. It was required by the Government to replace or line the pipes due to concerns over possible gas explosions. Approximately £109m of expenditure was incurred, and LRR of 150% was claimed under the law in force at the time. This law has since changed.
The FTT denied LRR on the grounds that the expenditure incurred on the pipes was for the replacement or improvement of chattels. This is not expenditure on ‘land’ for the purposes of LRR. Furthermore, the contamination being remediated had been caused by the activities of the parent company from which the rights over land were acquired. The parent company had a relevant connection to the taxpayer, so the criteria for LRR were not met.
The judgment contains a useful discussion on the concept of land. The FTT examined whether or not rights over land amount to ‘land’, particularly in regard to access rights, rights to carry out repair works and the right to erect structures on land.
Northern Gas Networks Limited v HMRC  UKFTT 0121 (TC)
4.2 SDLT on corporate acquisitions of residential property
The FTT has found for a taxpayer that delayed its plans to develop an ecotourism business due to an uncertain tax position. The delay was held to be commercially justified, so the taxpayer qualified for the trading exemption from the 15% SDLT flat rate.
A Cayman company acquired a large UK farm through a UK company acting as a bare trustee. The farm had been used for grazing under a verbal contract, and the purchasers intended to develop it into an ecotourism business. There was a delay before the project commenced, however, while the possible uses and state of the underlying land were examined. The taxpayer did not apply the 15% SDLT flat rate on high-value residential acquisitions by companies because it believed it met the trading exemption. The SDLT return also classified the farm as a non-residential property taxed at the lower non-residential rates of SDLT. HMRC disagreed on both of these points. The purchaser then halted the project pending the outcome of the enquiry because the potential additional tax would make the project financially unfeasible.
The FTT found that the qualifying trade exemption from the 15% SDLT flat rate did apply. All that the statute requires is an intention to carry out a qualifying trade without delay, not for a trade to be actually carried out. The statute also allows for commercially justified delays. The FTT held that the delays to examine the land and to resolve the £300,000 tax uncertainty met this definition. HMRC won the point on residential use on the basis that the land was not being grazed on the date of sale. Nor was grazing mentioned in the sales material or the purchase contract. The residential SDLT rates therefore applied. The FTT also cancelled the penalties on the grounds that obtaining professional legal advice amounted to reasonable care.
Pensfold v HMRC  UKFTT 0116 (TC)
4.3 Budget: the CT rate will remain at 19%
As expected, the CT rate will remain at 19% for the financial year beginning 1 April 2020. Legislation will also be introduced to keep this rate at 19% for the following year.
The Government announced in the Budget that the main rate of CT for the financial year beginning 1 April 2020 will remain at 19%, rather than falling to 17% as was previously legislated. Finance Bill 2020 will include this amendment and will also set the main rate at 19% for the financial year beginning 1 April 2021. The Government expects this measure to increase tax take by £930 million in year one, and £4.6 billion in year two, while noting that the CT rate still remains one of the lowest in the G20.
The 19% rate will be substantively enacted from 17 March 2020 when the Budget Provisional Collection of Taxes Act resolution is passed. It will therefore apply to the calculation of deferred tax for accounting periods ending on or after that date for UK GAAP and IFRS. For US GAAP, however, the 19% rate will not be enacted until the Finance Bill 2020 receives Royal Assent.
4.4 Budget: increase to the annual rate of the structures and buildings allowance to 3%
The structures and buildings allowance (SBA) will be increased from 2% to 3%. The rate change will take effect from 1 April 2020 for CT purposes and 6 April 2020 for IT purposes.
The SBA was introduced in 2018 to support business investment into new non-residential structures and buildings as well as improving existing ones. The allowance, which provides a writing down allowance on the cost of new non-residential structures and buildings, will increase from 2% to 3%. The time it takes to relieve qualifying expenditure will therefore be reduced from 50 years to 33 years and four months. Several of technical changes have also been introduced, some with retrospective effect and others effective from 11 March 2020.
4.5 Budget: increase in the rate of research and development expenditure credit
The rate of research and development expenditure credit (RDEC) is to increase from 12% to 13% from 1 April 2020.
Research and development (R&D) tax credits support the private sector by allowing companies to claim an enhanced CT deduction or payable credit on their R&D costs. Incentivising additional R&D activity is an essential part of the Government's objective to increase productivity and promote growth through innovation within the UK economy. In order to achieve this objective, the Government has increased the rate of RDEC from 12% to 13%. This increase means that large companies will obtain more financial support from Government when undertaking R&D activities.
4.6 Budget: consultations on research and development tax relief
The implementation of the PAYE cap for small and medium enterprises will be delayed until 1 April 2021. A further consultation will be issued on the design of the cap. The Government will also consult on whether or not expenditure on data and cloud computing should qualify for R&D tax credits.
The PAYE cap sought to prevent abuse of R&D tax relief by limiting the payable tax credit for SMEs to three times the PAYE liability of a company. The Government has decided to delay the implementation of the PAYE cap. The cap was initially planned to come into force in April 2020 but has been delayed until 1 April 2021. This is to allow for further consultation to ensure it prevents abuse of the scheme, while continuing to incentivise R&D activity within eligible companies.
The Government will also consult on the eligibility of data and cloud computing expenditure qualifying for R&D tax credits. These costs are not currently qualifying R&D expenditure under the current R&D relief schemes.
4.7 Budget: changes to tax relief for pre-Finance Act 2002 intangible fixed assets
Pre-Finance Act 2002 intangible assets acquired from related parties on or after 1 July 2020 will be brought within the intangible fixed asset regime. Currently, disposals of these assets are treated as corporate chargeable gains.
Under existing law, the CT rules that apply to intangible assets only apply to those assets that are created on or after 1 April 2002, and to those acquired from an unrelated party on or after 1 April 2002. Assets created prior to 1 April 2002 or acquired from a related party after this date (pre-FA 2002 intangible assets), were instead taxed under the corporate chargeable gains rules. From 1 July 2020, companies that acquire pre-FA 2002 intangible assets from related parties will bring these assets within the intangible fixed asset regime. This means that CT relief will now be available for the cost of these assets, where previously it was not.
4.8 Budget: unilateral digital service tax to be introduced
In the absence of consensus on a global approach to taxing the digital economy, the UK is introducing a unilateral digital service tax (DST). This was first announced in the 2018 Budget.
The DST imposes a 2% tax on some revenues derived by large multinationals from social media platforms, search engines and online marketplaces with UK users. The legislation is being introduced to correct a perceived misalignment of the taxation rights on the profits of large multinationals with the value derived from online users. The DST is designed to be a temporary measure pending a more comprehensive global solution. It will apply to revenues generated from users normally located in the UK by businesses that operate:
- social media services;
- search engines;
- provision of online marketplaces; and
- online advertising associated with any of the above.
It will only apply to businesses with global revenues from in-scope activities of at least £500m a year, and a safe harbour election is available. The first £25m of relevant UK revenues are also not taxable.
4.9 Budget: restriction on use of corporate capital losses
As expected, relief for carried-forward capital losses is to be restricted to 50% of chargeable gains arising in the period. An annual group allowance of £5m will be available for unrestricted income and capital loss relief.
As previously announced in Budget 2018, the Government will introduce legislation to restrict companies’ use of carried-forward capital losses to 50% of chargeable gains. The measure will include an allowance of up to £5m of profits before the 50% restriction is applied. This allowance can be offset by capital or income losses. These rules will be legislated in Finance Bill 2020 and apply from 1 April 2020.
4.10 Budget: treatment of LLP tax returns
The Government will legislate retrospectively that LLPs should be treated as general partnerships under the IT rules.
The new rules will ensure that HMRC can continue to amend LLP members’ tax returns where the LLP operates without a view to profit. This will only apply where an LLP has delivered an LLP partnership tax return on the basis that is operating ‘with a view to a profit’ and is subsequently found to be operating ‘without a view to a profit'. This follows a recent FTT decision that found that enquiries by HMRC into members’ returns were invalid. This was because HMRC did not open concurrent enquiries into the individual members' returns when it enquired into the LLP return. As ever, we deprecate retrospective tax legislation.
4.11 Budget: new measures for non-UK resident companies with property income
Changes are being introduced to ensure that the rules to bring corporate non-UK resident landlords into the charge to UK CT work as intended.
These measures are intended to ensure a smooth transition from IT to CT for non-UK resident companies with a UK property business. The specific points addressed include:
- clarification to ensure that the taxation of income from non-trading loan relationships and derivatives held by UK permanent establishments is not limited;
- new amendments to the corporate debt and derivative contract rules;
- ensuring time limits for electing into the Disregard Regulations are not accelerated solely as a result of the company disposing of an asset where the gain is subject to CT; and
- amendments to the exception from notifying chargeability to CT, where tax is deducted at source from rental profits.
5.1 Budget: VAT to be abolished on e-publications
Legislation will be introduced to zero-rate e-publications for VAT from 1 December 2020. This clarifies that the tax treatment of these products is in line with their physical counterparts.
The new legislation will apply to online and electronic publications, such as e-books, e-newspapers and academic e-journals. The VAT treatment of these products was the subject of a recent tax case that HMRC lost and there has been some confusion as to the correct approach. The Government will consult on this change before it is implemented in late 2020. In his speech, the Chancellor also mentioned that this change is intended to encourage younger children to read.
5.2 Budget: women's sanitary products to become VAT-free
Zero-rating for VAT will apply to women's sanitary products from 1 January 2021.
These products are currently subject to the reduced rate of VAT of 5%, which will be reduced to 0% when the new laws come into force.
6. And finally
6.1 Full disclosure
We were intrigued by the implications of one of the less noticed provisions in the Budget this week. The proposal is that large businesses will be required to notify HMRC when they take a tax position ‘which HMRC is likely to challenge’. This is curiously lop-sided. How, say, will big business know that HMRC will be likely to challenge a tax position, if HMRC hasn’t made its position clear; why not make life easier for business by doing it the other way round, and enabling businesses to have confirmed HMRC’s position in advance? Surely, in these straitened, indeed desperate times, it is more important for tax administration to smooth the way for business rather than for HMRC?
Second, this new provision must survive the Mansworth v Jelley test. In that case, HMRC persistently took up the wrong position on the CGT treatment of shares acquired under employee options, and even tried to legislate after the case to get to the position that it thought applied. The result was that there had to be yet further corrective legislation because the position hadn’t been correctly thought through. No one is perfect. Sometimes, HMRC is wrong; we should therefore have a sensible safe mechanism for big businesses especially, who are generally the most tax compliant of taxpayers, for disagreeing with HMRC; to be, if you like, Mr Jelley. Both sides should welcome an inclusive process for sorting out the correct position. HMRC should not see challenge as risk; it should see it as better opportunity to collect the right amount of tax. Both sides should be open. As Oliver Cromwell said, ‘think it possible you may be mistaken’.
Mansworth v Jelley  STC 53
|ATT – Association of Tax Technicians||ICAEW - The Institute of Chartered Accountants in England and Wales||CA – Court of Appeal||ATED – Annual Tax on Enveloped Dwellings||NIC – National Insurance Contribution|
|CIOT – Chartered Institute of Taxation||ICAS - The Institute of Chartered Accountants of Scotland||CJEU - Court of Justice of the European Union||CGT – Capital Gains Tax||PAYE – Pay As You Earn|
|EU – European Union||OECD - Organisation for Economic Co-operation and Development||FTT – First-tier Tribunal||CT – Corporation Tax||R&D – Research & Development|
|EC – European Commission||OTS – Office of Tax Simplification||HC – High Court||IHT – Inheritance Tax||SDLT – Stamp Duty Land Tax|
|HMRC – HM Revenue & Customs||RS – Revenue Scotland||SC – Supreme Court||IT – Income Tax||VAT – Value Added Tax|
|HMT – HM Treasury||UT – Upper Tribunal|