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Midweek Tax News
A weekly update on tax matters to 2 February 2016
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.
Tax Focus web seminar on 25 February on the impact of revised OECD transfer pricing guidelines
Our second Tax Focus web seminar for February 2016 will take place at 10:00 am on Thursday, 25 February and will cover the impact of the revised OECD transfer pricing guidelines.
The agreed revisions to the OECD transfer pricing guidelines are one of the most immediate and significant changes arising from the BEPS initiative and represent a new consensus on the interpretation of the arm's length standard. Some historical approaches are comprehensively rejected by the updated guidelines, in particular, those resulting in the attribution of significant profits to limited-function entities. These are entities with substantial capital and comparatively few employees, but which legally own valuable assets and/or enjoy the contractual allocation of significant risks. Such arrangements are common in the context of intragroup finance companies and also intellectual property holding and licensing entities.
Our Tax Focus web seminar will focus on:
• The background to the changes, together with a clear articulation of how the new guidance should be interpreted – we will focus especially on limited-function entities and on the critical distinction between the location of functions and risks, and the location of the control of those functions and risks
• Consideration of the interaction with other emerging trends including State Aid investigations and the EU's draft anti-BEPS directive
• Illustrating the risks arising for existing transfer pricing models that give rise to the accrual of significant profits in limited-function entities
• Describing the latest approaches we have seen agreed with HMRC in relation to the substance required in intragroup finance entities and group intellectual property holding and licensing companies
Register now to hear Claire Hooper, Craig Hillier, Simon Atherton and Jo Myers discuss these points.
European Commission publishes anti-avoidance package and country-by-country reporting (CBCR) agreement signed
The European Commission has now formally published its anti-avoidance package, including the draft anti-BEPS directive and a draft amendment to the automatic exchange of information directive to implement CBCR, both of which had been informally released earlier, together with a document with recommended amendments to tax treaties and various strategy and supporting documents.
The Commission recommends that, where Member States include a principal purpose test (PPT) in their tax treaties (as recommended by the OECD in its final report on BEPS Action 6 (preventing treaty abuse)), the wording suggested by the OECD is altered to allow arrangements to pass the PPT if they are carried on as part of a genuine economic activity as well as where it can be established that granting the benefits of a treaty would be in accordance with its objects and purposes. In its recommendations, the Commission also encourages Member States to include provisions in their tax treaties to address the ‘artificial avoidance of permanent establishment status’. This is as recommended by the OECD in its final report on BEPS Action 7.
The content of the anti-BEPS directive had previously been informally released and was set out in last week's Midweek Tax News. This includes proposals for EU-wide implementation of interest deductibility limitations, CFC provisions, a ‘switch-over’ clause (which requires Member States to ‘switch’ certain low taxed foreign income or gains from being exempt to being taxable with credit for foreign tax), hybrid mismatches, exit taxation, and a general anti-abuse rule.
It has been reported that the Dutch Government, which holds the presidency of the European Council, is looking to reach agreement on the two directives by July. However, at this stage, both remain draft, and unanimous agreement of all Member States will be required before they can be implemented.
Please see our global tax alert for more details.
As expected, the OECD's Multilateral Competent Authority Agreement providing for the automatic sharing of CBCR reports has be signed by 31 countries including the UK, Germany, France, Australia and the Netherlands. Other countries are expected to sign in due course. The US and Canada have not yet signed.
Please see our global tax alert for more details, including a full list of signatories.
Upper Tribunal decides that partners do not carry on a trade separate from the partnership's
In the case of Peter Vaines, the Upper Tribunal has allowed HMRC's appeal against the First-tier Tribunal decision in favour of the taxpayer.
The taxpayer, an individual who was a member of a limited liability partnership (LLP1), claimed a deduction from trading income for a settlement payment he made in connection with his former membership of an unconnected limited liability partnership (LLP2). He submitted that he made the payment in respect of LLP2 to avoid the risk of being made bankrupt, as he feared that if this happened, he would lose his position as a partner of LLP1. Although the taxpayer accepted that the payment had enabled him to avoid bankruptcy and protect his reputation, the First-tier Tribunal had nonetheless found, as a matter of fact, that his purpose for making that payment was to preserve and protect his professional career or trade.
The Upper Tribunal disagreed. In the first instance, it decided the trade that the taxpayer was carrying on and in respect of which the profits had to be computed for the purposes of the charge to income tax was LLP1's trade as carried on in common by all the members and not by the taxpayer alone.
Therefore, the issue was whether the expense in question was incurred wholly and exclusively for the purposes of LLP1's trade. The Upper Tribunal found that the taxpayer's decision to pay the amount was a personal decision. He paid it to avoid the risk of bankruptcy and jeopardising his membership of LLP1. On that basis the payment was not made wholly and exclusively for the purposes of the trade (or, more accurately, the professional activities) of LLP1 but to enable the taxpayer to be secure in the knowledge that he could continue as a member of LLP1. Thus, it was not deductible. Finally, the Upper Tribunal found that the payment probably was revenue rather than capital, but that HMRC's appeal succeeded on the other points.
The decision illustrates the importance of partners distinguishing their own expenses from those of the partnership.
Other UK developments
Inquiries and debates on corporate tax in Parliament
As we reported in Midweek Tax News last week, the Treasury Select Committee has launched an inquiry called Shifting Sands: An Inquiry into UK tax policy and the tax base. It has asked for written submissions by 31 March. The first hearing of evidence was yesterday when witnesses included John Cullinane of the Chartered Institute of Taxation, Richard Murphy of Tax Research LLP, and John Whiting of the Office of Tax Simplification. The committee heard different views about the likely affect of the BEPS agenda and the challenges of maintaining the tax take from corporation tax as economic conditions change.
Furthermore, the House of Commons will today debate an opposition motion on tax avoidance and multi-national companies. Meanwhile, Labour's Shadow Chief Secretary to the Treasury, Seema Malhotra, has written to the National Audit Office, asking it to investigate the process by which HMRC agrees to settlements with multinationals.
Also today, the House of Lords Economic Affairs Finance Bill Sub-Committee will hear evidence on aspects of the Finance Bill, focusing in particularly on tax simplification. EY's head of tax policy, Chris Sanger, will be providing oral evidence alongside John Whiting.
Finally, the Public Accounts Committee is holding a hearing on corporate tax on 11 February where it will hear evidence from Matt Brittin, the Head of Google (Europe); and Dame Lin Homer, Jim Harra and Edward Troup of HMRC.
HMRC gathering evidence on salary sacrifice schemes
In last year's Autumn Statement, the Government announced that it remains concerned about the growth of salary sacrifice arrangements and their cost to the taxpayer. The Government said it will gather further evidence on these, including from employers, to inform its approach.
Following this announcement, HM Treasury, in conjunction with HMRC, has held a number of workshops to gather evidence from stakeholders on these and other flexible benefit arrangements. Overall, salary sacrifice and flex arrangements were considered by participants to be a positive element of remuneration policy. They are standard in many industries and most employers appear focussed on the provision of employee choice and the wider flexibility provided by such arrangements.
Our employment tax alert summarises the areas on which HM Treasury and HMRC sought views and the feedback given by the participants.
We remain of the opinion that salary sacrifice is a positive and important element of remuneration policy. The impact of any proposed changes, based on the evidence gathered about employers, employees, industry and UK competitiveness, could be significant.
Upper Tribunal finds compensation for ‘injury to feelings’ is taxable
In the case of Moorthy, the Upper Tribunal decided that compensation was taxable where it was a result of the settlement of an age discrimination claim which covered ‘injury to feelings’.
The Tribunal found that, as the payment was made in connection with a termination of employment, it was taxable as a termination payment. It held that the tax treatment of compensation for discrimination depends on whether the discrimination is connected with the termination. There is nothing in the legislation that excludes non-pecuniary awards, such as damages for injury to feelings, from the scope of the rules. Furthermore, it considered that the exemption in the legislation for ‘injury’ referred to a medical condition and does not include injury to feelings. Accordingly, the compensation did not fall within that exception.
Court of Appeal rejects appeal over judicial review in relation to film partnerships
The Court of Appeal has dismissed an appeal against the Upper Tribunal's refusal of an application for judicial review in the case of R (De Silva and Anr). The taxpayers asked for a judicial review of HMRC's decision to disallow their claims to carry back loss relief on the basis that HMRC had not followed the correct procedure in so doing. The claimants were members of film partnerships and made claims in their personal tax returns to set partnership trading losses expected to arise in future tax years against their general income arising in earlier tax years.
The Court of Appeal decided that the taxpayers' approach was fundamentally flawed and that HMRC had applied the appropriate procedure. Furthermore, the Court decided that a settlement agreement entered into by the partnerships contractually precluded the taxpayers from claiming greater losses than the settlement provided.
Regulations published expanding the hallmarks for the disclosure of tax avoidance schemes (DOTAS)
The Government has published regulations which expand the scope of the hallmarks used to identify schemes that must be disclosed under the DOTAS rules. The regulations amend the definitions of the ‘loss schemes’ and ‘standardised tax products’ hallmarks, as well as adding a new hallmark for ‘financial products’ which contain at least one term that it is unlikely would have been entered into were it not for a tax advantage. In addition, the regulations bring inheritance tax into the scope of the ‘confidentiality’ and ‘premium fee’ hallmarks.
HMRC has also published a response to the consultation on the DOTAS rules launched in July 2015. As well as noting the changes in the new regulations, HMRC announces in the response that the Government intends to develop a revised inheritance tax hallmark for further consultation in 2016.
EY responds to the consultation on the higher rates of stamp duty on second homes
We have submitted our response to HMRC's consultation of 28 December 2015, Higher rates of Stamp Duty Land Tax (SDLT) on purchases of additional residential properties, on the proposal for an additional 3% SDLT charge on second homes and buy-to-let properties. Among the issues we note in our response are:
• The need for better targeting in situations where the extra 3% charge will apply to joint purchasers
• Scenarios in which the definition of main residence may cause practical difficulties
• An alternative to the refund mechanism, which we believe is flawed and penalises a section of the market that the Government wishes to protect
• The availability of exemptions
Our comments on the SDLT consultation are complemented by our response to the Finance Committee of the Scottish Parliament's call for evidence in respect of the proposed land and buildings transaction tax supplement on additional residential properties. In responding to the call for evidence, our response includes comments on the draft Land and Buildings Transaction Tax (Amendment) (Scotland) Bill, which was published on 28 January 2016.
To discuss our responses to these consultations, please get in touch with your usual EY contact.
Government publishes draft legislation reforming the definition and tax treatment of non-doms
Draft legislation to be included in Finance Bill 2016 has been published which deems certain people, who would otherwise be non-doms, to be domiciled in the UK for the purposes of income and capital gains tax. The rules apply to anyone born in the UK who has a UK domicile of origin whilst they are UK resident and to anyone who has been resident in the UK for at least 15 out of the previous 20 tax years.
Anyone deemed to be UK domiciled by virtue of the new rules cannot apply the remittance basis. Furthermore, the draft legislation amends some other aspects of income tax and capital gains tax rules that offer advantages to non-doms. The new rules will have effect from 6 April 2017. Some of the expected provisions in respect of non-doms with interests in offshore trusts are being held back until Finance Bill 2017.
First-tier Tribunal considers whether membership subscriptions include exempt supplies of credit
In the case of Sports and Leisure Group Ltd, the First-tier Tribunal held that the taxpayer did not make an exempt supply of credit to annual members of its health and fitness clubs beyond the first year of membership. HMRC accepted that where a member paid the annual fee by way of monthly instalments in the first year of membership, rather than one annual amount, the additional amount due under monthly instalments was an exempt charge for credit. However, the issue in this appeal was whether there was any supply of credit after the first year of membership.
The First-tier Tribunal found that the contract did not provide for any member to be liable for an annual fee for the second and subsequent years, whatever method of payment that member chose for the first year. The taxpayer was not, therefore, giving credit for any sum in relation to the second and subsequent years. Nor was there any period over which credit was given or any disclosure of a charge for credit. Without these factors, there could be no exempt supply of credit.
Businesses that charge customers more for making monthly payments as opposed to annual payments may wish to review their current VAT treatment and consider whether supplies fall within the VAT exemption. The contractual position should also be considered to ensure it supports the economic reality and the VAT treatment of the supplies.
EY Tax Webcast on 4 February on the introduction of VAT in Puerto Rico
We will be holding a global tax webcast at 7:00 pm on Thursday, 4 February to discuss Puerto Rico's intention to implement a VAT system with effect from 1 April 2016. This brings Puerto Rico one step closer to becoming the first US jurisdiction to adopt a VAT regime. With just a few months until the implementation date, businesses will need to swiftly consider the compliance, systems, internal and commercial implications.
Please join our panel as they provide insights into Puerto Rico's proposed VAT regime, explore practical steps for addressing implementation and share some examples of how leading organisations are getting ready.
To register for the webcast, please click here.
For further details about the new Puerto Rico VAT regime, please refer to our global tax alert, which documents preliminary information shared by officials from the Puerto Rico Treasury Department.
Union Customs Code (UCC) Delegated and Implementing Acts published
The UCC Delegated and Implementing Acts have been published in the Official Journal of the European Union. However, the Transitional Delegated Act, capturing transitional measures that allow Member States' customs authorities to continue using any existing electronic or paper-based systems until the new systems are up and running, is still pending publication.
The core EU customs legislation is facing its biggest change in over 20 years with the introduction of the UCC in May 2016. The UCC will serve as an entirely new framework of the rules and procedures for customs activities throughout the EU and will entail radical changes to some customs regimes and controls. This will have a significant impact on both the finances and the operations of many companies which import and export goods into and out of the EU.
Our latest global tax alert on the UCC focuses on those areas where new insights are now available and on the topics where uncertainty or room for interpretation remains.
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.
Ukraine: Parliament has reduced income tax to a flat rate of 18% and the unified social tax to a flat rate of 22%, as well as increasing the real estate tax.
Chile: The National Assembly has approved a bill simplifying the new income tax system that was introduced in 2014.
India: The private ruling authority has decided that a transfer of shares in an Indian company from Mauritius to Singapore is not avoidance and so benefits from a capital gains exemption in the Mauritius/India treaty.
Our report, Into focus: FTSE 350 Executive and Board remuneration, summarises last year's remuneration trends in executive pay, in terms of magnitude and policy, across the FTSE 100 and FTSE 250, and highlights 2016's key challenges.
Please speak to your usual EY contact, or email us at email@example.com, if you would like to receive a copy of our regular indirect tax newsletter or our employment, reward and mobility newsletter, as well as information about our other publications.
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.
Tax Focus web seminar on 25 February on the impact of revised OECD transfer pricing guidelines
|+ 44 20 7783 0859|
European Commission publishes anti-avoidance package and country-by-country reporting agreement signed
|+ 44 20 7951 2486|
Upper Tribunal decides that partners do not carry on a trade separate from the partnership's
|+ 44 20 7951 2686|
For other queries or comments please email firstname.lastname@example.org.
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