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Midweek Tax News

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A weekly update on tax matters to 30 June 2015

Midweek Tax News provides you with a succinct overview of the key tax developments that have occurred each week to allow you to stay up-to-date on tax issues that may have an impact on your business. If you would like to discuss an article in more detail, please speak to the relevant contact listed at the end of this issue or to your usual EY contact.

With the final reports for the OECD's BEPS project scheduled to be published later this year and diverted profits tax now in force in the UK, EY's International Tax Services team are holding the next in a series of breakfast seminars on Monday, 6 July at our offices at One More London Place. We will discuss the reports released since April, share how key countries are responding in practice and consider what actions multinationals should evaluate.

The focus of our session will be on the updated releases on Action 6 and Action 7. Action 6 will have far reaching consequences for how and when tax treaties can be accessed with a key impact on holding and financing structures. The May 2015 update paper focuses closely on collective investment sector issues. In our view the detailed work in relation to treaty issues across the different types of investment platform illuminates and informs country thinking and practice related to the application of the principal purpose test and has wide relevance beyond the collective investment sector.

The extended permanent establishment (PE) threshold creates an increased compliance burden for almost all multinationals and raises fundamental questions for certain low tax business models which fall short of the current PE threshold. We will review the May 2015 update papers in detail and illustrate why a PE in a non-BEPS arrangement may have a relatively modest profit attribution but how country thinking is developing such that profit attribution can rise sharply in arrangements involving avoidance.

We will also provide a brief update on the latest BEPS releases on transfer pricing. The draft paper on cost contribution arrangements (CCAs), if finalised in this form, would fundamentally change the way in which CCAs are viewed and is likely to impact many groups that use CCAs for intragroup service provision or for developing intangibles; and the recent Action 13 release gives further useful detail of how country-by-country reporting will be implemented in practice.

Please register for the seminar using this link.

CBCR is scheduled to come into force for financial years beginning on or after 1 January 2016. In the UK, Finance Act 2015 provided the authority for the detailed rules on CBCR to be enacted through regulations and we expect that draft regulations will be issued for consultation before they are laid before Parliament.

One of the issues that HMRC is currently considering is the format in which CBCR reports must be submitted to HMRC. Possibilities include submission in the form of a machine-readable XML or alternatively as a web-based form such as is currently used for electronic submissions of income tax returns.

Groups may wish to consider which method of submission could be integrated best with their own existing information gathering systems and internal controls. We are presently in dialogue with HMRC and would be happy to pass on comments on this or any other aspect of the proposed CBCR implementation package.

Our global tax alert provides an overview of the OECD implementation package for CBCR issued earlier this month.

In the case of APVCo 19 Ltd & Ors, the Court of Appeal has considered whether retrospective changes to section 45 of Finance Act 2003 relating to stamp duty land tax (SDLT), made by Finance Act 2013, should be declared to be incompatible with the taxpayers' rights under the ECHR. The rights in question were those relating to the protection of property under article 1 of protocol 1 and to a fair trial under article 6 of the ECHR.

The taxpayers sought to take advantage of arrangements designed to allow them to escape the payment of SDLT on their purchases of (mostly) residential property for their own use. The question for the Court of Appeal was not whether the arrangements would have actually worked but whether the retrospective legislation targeting them violated the ECHR.

The Court of Appeal agreed with the judgment of the High Court that article 1 of protocol 1 was not engaged in this case because the legislative changes had not deprived the appellant of any “possessions” as that term was properly to be construed in that article. However, Lord Justice Floyd and Lord Justice Vos differed slightly as the reasoning why the case did not come within the article.

The Court of Appeal also agreed unanimously that, even if article 1 of protocol 1 was engaged, the legislative changes were although retrospective, lawful. They were neither unforeseeable nor arbitrary. Moreover, the legislative changes satisfied the proportionality test. Lord Justice Vos noted that “the fair balance between the public interest and the protection of the appellants' fundamental rights falls firmly on the side of the public interest in preventing taxpayers taking advantage of abusive tax avoidance schemes after clear warnings have been given that such schemes would not be tolerated and would be tackled with retrospective legislation”.

Finally the Court of Appeal agreed that the legislative changes were also not a breach of article 6 of the ECHR, since tax proceedings do not relate to the determination of a “civil” right or obligation.

At the time of writing, the Greek Government has put forward a further proposal for a two-year bailout programme from the European Stability Mechanism which is being discussed by Eurozone finance ministers. This proposal came before the 22:00 GMT deadline on 30 June for Greece to repay a €1.6bn loan to the International Monetary Fund. It remains unclear whether a deal can be done or alternatively what the position will be following the result of any referendum on 5 July.

Should the end result of the negotiations be Greece’s withdrawal from the Eurozone then some key tax issues are likely to arise from the redenomination of existing loan agreements or receivables. Redenomination is likely to be in point in the case of domestic agreements and cross border agreements where a Greek resident is the debtor. Where a Greek resident is the creditor of a foreign debtor, redenomination is not likely to be mandated by law.

Redenomination in combination with the expected significant depreciation of the new currency is likely to result in a loss in the country of the lender. The tax deductibility of this loss, together with any transfer pricing and hedging impacts will need to be considered in the lender's jurisdiction. There may also be a knock-on effect on the lender's own balance sheet and its loans, depending on the strength of its balance sheet and any risk mitigation strategies in place.

For companies that are residents of Greece, a Greek withdrawal from the Euro would initially seem to be tax neutral. The subsequent depreciation of the new tax reporting currency may however result in significant tax consequences. Euro receivables or other assets (e.g. inventory) may be sold, generating exchange profits which would not previously have existed. Similar issues may arise if group service contracts specify Euro-based fee arrangements, while operating costs in Greece have switched to the new currency. All cross border contracts (e.g. supply chain contracts) and cash pool receivables/payables may well need a review, not only from a foreign exchange perspective but also from a transfer pricing perspective. Any new arrangements, even when arguably simply replacing existing arrangements, will need particular consideration. Care might also need to be taken when entering into any new arrangements with countries seen at risk of ‘contagion’.

In addition, there are likely to be ‘people’ issues for both local Greek staff and any international assignees. These are likely to be wide-ranging and include re-domination of salary, provision of expanded benefits, the method of pension provision and any long-term equity based incentives.

The Chancellor of the Exchequer, George Osborne, delivers his summer Budget at 12:30 next Wednesday, 8 July. While we may see draft legislation issued around the time of the Budget, we do not expect the new Finance Bill to be introduced into Parliament until after the summer recess.

In the run-up to the Budget, Chris Sanger and David Kilshaw present a pre-Budget podcast on what we can expect as well as the economic and political background. Limited announcements have been made since the election about the tax measures that we can expect in this Budget though the “triple lock” on increases in income tax, national insurance and VAT rates has been confirmed in the Queen's Speech. This limits the Chancellor's room for manoeuvre. As a result we may expect to see tackling tax avoidance feature heavily, as a means of expanding the tax base, or indeed the number of taxes. The podcast is available here.

The day after the Budget, Claire Hooper, Chris Sanger, David Kilshaw and EY ITEM Club's Martin Beck will present the next in our Tax Focus web seminars to consider the measures announced and their possible implications for business. You can register for the web seminar here.

Qualifying private placements: New UK withholding tax exemption

A new withholding tax exemption on qualifying private placements was initially announced in the Autumn Statement 2014 and some details were contained in Finance Act 2015. The exemption is intended to help unlock new finance for businesses and infrastructure projects. Further details have now been included in draft secondary legislation which has been made available for consultation. A working group set up to discuss the proposals will meet on 31 July.

UK annual share reporting process

As a reminder, companies are now required to provide HMRC with an online return for each registered employment-related securities (ERS) scheme or arrangement by 6 July following the end of the tax year, including details of any reportable events in the tax year. Before submitting such a return using the ERS Online Service, companies must be registered to use HMRC Online Services.

HMRC has published guidance in which it notes that it has come across instances of companies which are unable to make returns of reportable events in particular circumstances. HMRC advises that, where this is the case, for the 2014/15 year, returns of reportable events will not be required if all of the following apply:

• Neither the company, nor any other company in the same group or under the same ownership, is registered for PAYE

• The arrangements are not tax-advantaged schemes (that is, not SIP, SAYE, CSOP or EMI schemes)

• The company has no obligations to operate PAYE in respect of the reportable event

• The company has no obligation to operate PAYE in respect of anything else it does

Legal requirements for non-UK companies offering share plans to UK employees

Many multinational enterprises operating in the UK offer their employees participation in a share plan as part of their remuneration package. However, some groups may be unaware that share plans are subject to various UK legal requirements and that failure to meet these requirements can give rise to penalties. The requirements include:

• Share incentives offered to UK employees by financial services firms must comply with the Remuneration Code

• Under data protection rules there are restrictions on the holding and transfer of employee personal data to parties outside the European Economic Area

• There are various regulations to prevent discrimination in the workplace on the grounds of age or sex which can be triggered accidentally

• Under securities law, a prospectus has to be produced where shares or securities are offered to the UK public. Exemptions apply to certain employee offers but groups should consider the circumstances carefully as failure to comply is a criminal offence

Please see our HR and tax alert for more details.

Supreme Court decision on availability of double tax relief to be handed down today

The Supreme Court will give its decision in the case of Anson today (Wednesday). The case considered whether a UK individual is entitled to double tax relief for US tax paid on the profits of a Delaware limited liability company (LLC). The taxpayer was taxed personally on his share of the profits of the LLC in the US (at about 45%) because, for US tax purposes, the LLC was treated as a fiscally transparent entity. However in the UK, HMRC contend it was a corporate entity such that the individual's UK tax was not computed by reference to the same profits or income and DTR was therefore unavailable.

The First-tier Tribunal found for the taxpayer, but this was overturned in the Upper Tribunal whose decision was upheld by the Court of Appeal.

First-tier Tribunal decides that VAT is not recoverable on corporate restructuring fees

In the case of Danesmoor Ltd, the First-tier Tribunal considered whether the taxpayer was entitled to recover VAT incurred on professional fees in connection with a corporate restructuring exercise.

The corporate restructuring exercise resulted in the removal of the taxpayer's minority shareholders. The restructuring involved incorporating a ‘Newco’ which acquired the taxpayer's entire share capital. Newco acquired the shares held by the taxpayer's Managing Director by way of share for share exchange and all other shareholders received cash and/or loan notes. The taxpayer, which became a wholly owned subsidiary of Newco, incurred tax advisory and legal fees in connection with the restructuring.

Notwithstanding the contractual terms between the parties, the Tribunal considered that the economic reality in this case was that the professional advisers supplied their services to the individual shareholders who were involved, rather than to the taxpayer. In effect, the payment by the taxpayer for the tax advice and legal services provided to the shareholders was an added inducement to persuade them to sell their shares in accordance with the proposed restructuring. On this basis, the Tribunal held that the taxpayer was not entitled to recover the VAT as input tax.

This decision adds to the weight of recent case law dealing with the recovery of VAT on corporate deal costs.

Gibraltar issues its Budget for 2015

Gibraltar's Chief Minister, Fabian Picardo, has presented his Budget for 2015. As expected, the standard rate of corporation tax remains unchanged at 10%. The Budget has introduced a tax deduction of 150% for the costs of training employees for certain qualifications while new businesses, including partnerships and sole traders, can claim 100% capital allowances in the first year of trading. The Government will consult on the tax treatment of intangible assets and research and development expenditure.

The personal allowance is increased by £500 to £11,000 and minimum wage goes up by 10p to £6.25 per hour from 1 September 2015.

Finally, a six month tax amnesty was announced in respect of funds held abroad on which tax should have been paid in Gibraltar. On remittance to Gibraltar, individuals who avail themselves of the amnesty will be required to pay 5% of the total amount remitted. Otherwise, a 100% penalty on undeclared income will be due.

Please see our global tax alert for more details.

European Union officials issue taxation reports

The EU Council of Economic and Finance (ECOFIN) has prepared a report summarising the state of play of its work across all tax issues. The EU Council of Economic and Finance (ECOFIN) has prepared a report summarising the state of play of its work across all tax issues. The report was approved at last week's ECOFIN meeting. It does not include any major new announcements but covers the progress made under the Latvian presidency of the EU Council on various matters including the proposed changes to the Parent-Subsidiary directive and Interest and Royalties Directive; VAT return standardisation; the latest work on the financial transactions tax; and other transparency measures. The report notes that the Council has started to work on the European Commission's proposal on the automatic exchange of information on tax rulings. It also highlights that some Member States have expressed the wish to intensify the discussion on VAT fraud in the EU. The report looks to set out the areas to be taken forward under the Luxembourg presidency of the Council, which operates for the second half of 2015.

ASEAN tax incentive seminar 09:00 on Monday, 20 July

Significant changes have recently been made to the existing tax incentive schemes in various ASEAN countries (e.g. Malaysia and Thailand) aimed at attracting multinational companies to establish HQs and trading activities. We are holding an awareness session looking at these changes and the impact they would have on existing businesses and future investments into the countries. The hour and a half session will be held at our offices at One More London Place on 20 July 2015. If you would like to attend this session please email Jasmine Chu.

Other global tax alerts

Please see links to a selection of our tax alerts in respect of the following developments. Additional articles are available in our global tax alert library.

Russia: The Ministry of Finance of the Russian Federation has updated the draft Main Tax Policy Objectives for 2016, which have also now been approved by the Russian Government.

Poland: A revised draft Bill has been published regarding documentation of intercompany transactions. Among the amendments made, the Bill will now take effect from 1 January 2017.

Portugal: The Tax Authorities have published guidance on the special tax regime for collective investment schemes.

Canada: The Tax Court of Canada has rejected a ‘mark-to-market’ form of accounting in respect of the taxation of trading foreign currency option contracts.

Hong Kong: The Government has rejected the claim made by the EU that it is a non-cooperative tax jurisdiction.

South Africa: The South Africa Revenue Service has issued a draft notice setting out incidences of non-compliance (subject to fixed penalties) under the inter-governmental agreement with the US in relation to FATCA.

Mexico: The tax authority has revised the information required on operations with foreign related parties as part of its reaction to the BEPS agenda.

Panama: An executive decree has been issued, clarifying the exemption for Panamanian entities operating entirely

Other publications

The latest issue of our Global Tax Policy and Controversy Briefing is now available. The June 2015 issue considers the extremely high pace and volume of developments on base erosion and profits shifting (BEPS) from both the OECD and the European Commission, as well as considering the growing transparency demands and the importance of data readiness when managing tax reputational risk. The Briefing also includes updates from a number of countries on related initiatives.

The June 2015 issue of TradeWatch, the newsletter of our Global Customs and International Trade team, is now available. It contains the latest news on customs duties and trade agreements from around the world.

Please speak to your usual EY contact, or email us at eytaxnews@uk.ey.com, if you would like to receive a copy of our regular indirect tax newsletter, or information about our other publications.

Further information

If you would like to discuss any of the articles in this week's edition of Midweek Tax News, please contact the individuals listed below, Claire Hooper (+ 44 20 7951 2486), or your usual EY contact.

Base erosion and profit shifting breakfast seminar 08:00 on Monday, 6 July

Email Sarah Chong

+ 44 20 7783 0859

Implementation of country-by-country reporting

Email Claire Hooper

+ 44 20 7951 2486

Retrospective tax legislation and the European Convention on Human Rights

Email Mike Gibson

+ 44 20 7951 0568

Greek debt negotiations: Possible tax issues

Email Helmar Klink

+ 31 88 407 1731

What might we expect in the upcoming summer Budget?

Email Sarah Chong

+ 44 20 7783 0859

For other queries or comments please email eytaxnews@uk.ey.com.

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