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A weekly update on tax matters to 27 January 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.

As a reminder, our Tax Focus web seminar at 10:00 am today, 28 January, will focus on the DPT.

The DPT will be introduced from 1 April 2015 and is intended to counteract the erosion of the UK tax base through ‘contrived arrangements’. Whilst the tax has been widely reported as targeting the digital sector, it will, in fact, apply to a wide range of transactions across all industry sectors.

The rules are very complicated and a broad range of circumstances are potentially within the rules. The commitment to include the proposal in the Finance Act to be passed before the election in May means that there is very little time for groups to assess how the rules will apply to them and to restructure if appropriate.

We have been receiving further input from HMRC and HM Treasury as to how the rules will apply in practice and will share this insight with you during the web-seminar.

Register now to hear Claire Hooper and Ian Beer discuss how the proposed DPT is likely to apply

Over the course of the three days 21 to 23 January, the OECD held three public consultation days on discussion drafts issued towards the end of last year. These days provided an opportunity for stakeholders to engage directly with the OECD secretariat and the country delegates who are responsible for the work on the respective Actions.

Action 7 (preventing the avoidance of permanent establishment (PE) status): 21 January

The discussion draft of 31 October sets out 14 proposed options (Options A through N) for modifying the PE rules in Article 5 of the OECD Model Tax Convention which generally would lower the threshold for finding that a PE exists and eliminate exemptions from PE status.

In the general discussions, three main observations were made by business representatives. First, any rule which would make it easier to establish the presence of a PE would almost certainly increase the substantive and administrative costs for cross-border transactions. Second, if the PE rules are to be changed, it is crucial that the new rules are clear and as well understood as the rules that they replace. Third, that the proposed options would impact the balance between source and residence country taxing rights.

Business commentators also noted that changes to the PE threshold in Article 5 would impact other articles in the OECD Model Tax Convention and would have implications beyond corporate income tax, including impact on VAT.

For more detail on the discussions and the points raised on the proposed options, please see our international tax alert. It is intended that a revised draft will be issued in spring 2015.

Action 6 (preventing treaty abuse): 22 January

On 21 November 2014, the OECD issued a discussion draft on follow-up work that had been identified in its 16 September 2014 report on Action 6. The discussion draft describes further work with respect to the proposed limitation on benefits provision, in particular work relating to the treaty entitlement of collective investment vehicles (CIVs) and non-CIV funds. It also describes further work with respect to the proposed principal purpose test and other issues involving the proposed new treaty tie-breaker rule, the treatment of permanent establishments in third countries, and the interaction between tax treaties and domestic anti-abuse rules.

The OECD representatives noted that the Action 6 Report reflects agreement on a new minimum standard for treaty protection from abuse. They indicated that there is no intention to reopen the Action 6 Report generally and that the working group is focused on the specific issues that were identified as needing additional work.

In general discussions, business commentators stressed the need for targeted rules that do not place undue burden on businesses seeking to access treaty benefits. Non-governmental organisation representatives called for all countries to participate, expressing the view that a consistent anti-abuse rule is needed and that there should not be a layering of anti-abuse rules.

For more details of the discussions please see our international tax alert.

Action 14 (improving the effectiveness of dispute resolution mechanisms): 23 January

The discussion draft of 18 December identifies obstacles that are preventing countries from resolving treaty-related disputes through the mutual agreement procedure (MAP) and proposes a series of options for addressing those obstacles.

In general discussions, the attendees described progress on Action 14 as crucial for the success of the BEPS project. They further expressed the view that to be successful the BEPS project will require countries to be willing to fully support the project and businesses to be willing to fully accept its outcomes.

The bulk of the specific comments focused on the urgent need for agreement on mandatory binding arbitration though there was some discussion of other ways to improve the operation of the MAP.

Our international tax alert provides more detail of the discussions.

The Finance Ministers of France and Austria have sought to break deadlocked talks on a European FTT by writing to the other nine countries pursuing the EU's ‘enhanced cooperation’ procedure to introduce such a tax. The joint letter, dated 21 January, was sent in advance of the next meeting of the ECOFIN council, scheduled for 27 January, to allow for informal discussion at that meeting.

In the letter, the Ministers seek to “breathe new life into talks on the FTT”. The letter proposes that fresh talks are needed both in terms of the concepts underpinning the FTT and the procedures necessary for it to be adopted. The Ministers propose that all 11 countries should agree that an FTT should be applied to “the widest possible tax base, with low rates,” from 2016 onwards. The letter does not, however, make any specific recommendations on how an agreement to take the FTT forward may differ from the 2013 proposals in terms of tax base or rates.

Separately, the letter notes that securing an FTT will “ensure the operational effectiveness of the enhanced cooperation (process) which will be a prerequisite for its use in the future to address other issues.” This suggests that the enhanced cooperation process is still seen as a potential way to address the implementation of other related harmonisation issues among smaller groups of Member States.

For more detail please see our international tax alert.

On 22 January, the proposals outlined in the Smith Commission Agreement (27 November 2014) became draft legislation. This legislation will result in the further devolution of a number of powers over tax, spending and welfare.

The draft clauses are intended to show how the measures included in the Smith Commission Agreement would look in law. The Government has, however, advised that there is not enough time before the next general election for a new Scotland Bill to be taken through Parliament. Instead, it is intended that the publication of the draft clauses now means that whoever forms a government after the election in May will be able to turn them into law at the earliest possible opportunity.

We will be hosting a webinar on 30 January which will provide an overview of the proposals and look at how they will impact businesses in Scotland. This will be an interactive session with the chance to ask questions.

Please click here to register yourself for the webinar.

EY's 2014 global transfer pricing tax authority survey: Perspectives, interpretations and regulatory change is now available. The survey reviews transfer pricing practices and perspectives in 50 jurisdictions with respect to a variety of topics, including penalties, transactions and industries of focus, dispute resolution options, and approaches to comparables benchmarking.

It is very clear that transfer pricing will continue to be front of mind for both tax authorities and multinationals. Tracking trends, obtaining timely information on the transfer pricing environment and being ready to respond to an enquiry will be critical to effective management of a tax function.

We will be holding a webcast at 18:00 pm on 29 January which will look at the survey findings and provide an overview of the major areas of focus from a tax authority perspective, providing insights into tax authority agendas in relation to transfer pricing. We will also look at how you can be prepared to face the current and upcoming challenges. To obtain a copy of the survey and learn some of the key issues please click here.

To register for the webcast, please click here.

Prudential Assurance Company: supplementary judgment

The High Court has handed down a further judgment in the case of Prudential Assurance Company. The case concerns the compatibility with EU law of various aspects of the UK legislation which governed the taxation of ‘portfolio dividends’ paid by companies resident either in the EU, or elsewhere in the world, to corporate shareholders resident in the UK.

The purpose of the recent judgment, described as a sequel to the judgment of 24 October 2013, is to resolve some outstanding questions of principle in relation to the calculation of the quantum and the timing of the payment of the successful claim. The 2013 judgment is still the subject of an appeal, which is listed for hearing in May this year.

Definition of ‘British Film’

The draft Films (Definition of ‘British Film’) Order 2015 has been considered by committees in both Houses of Parliament. The Order modifies the statutory test that is used to assess whether a film is culturally British. This test is part of the conditions for film production companies to claim film tax relief. The Order will align the film cultural test with the other three cultural tests covering the tax reliefs for high-end television, animation programmes and video games. The Order is also intended to ensure compliance with an updated State Aid authorisation granted by the European Commission on 17 March 2014.

Fiscal reform of the UK continental shelf

At Autumn Statement 2014, the Government announced its intention to consult on a basin-wide investment allowance, to simplify and replace the existing system of offshore field allowances. The allowance aims to reward investment in existing and new fields as well as associated infrastructure. On 22 January, HM Treasury launched a consultation which will close on 23 February.

HM Treasury will convene working groups over the course of the consultation with commercial, exploration, production, tax and finance experts to discuss technical issues raised in the consultation. The Government will publish a summary of responses to this consultation later in the year.

Second year reporting of directors' remuneration

We have analysed the first of those companies reporting for a second time under the directors' remuneration reporting regulations introduced in October 2013. The analysis gives an early indication of the approach taken and the trends that could emerge in 2015. Those responsible for pay reporting who will likely be in the throes of taking decisions on reporting directors' remuneration are likely to welcome this insight as they shape their 2015 report.

Early analysis has found almost half of companies intend to put their remuneration policy back to shareholders for a binding vote in 2015 as well as a mixed approach to referencing remuneration policy as it was approved by shareholders in 2014. There is also a continuation of the trend to compare pay with metrics other than distributions (as is required by the regulations) with companies using profit, taxes paid and capital expenditure amongst others.

Our Human Capital alert provides further details.

National insurance contribution (NIC) limits and thresholds

Two draft statutory instruments have been released which are to give effect to the annual re-rating of various NIC limits and thresholds. The Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations 2015 specifies the relevant thresholds and limits for the purposes of calculating Class 1 NICs for the tax year beginning 6 April 2015. The Social Security (Contributions) (Re-rating and National Insurance Funds Payments) Order 2015 addresses Class 3 and Class 4 NICs.

EY Annual Employment Tax Forums

These breakfast seminars will be taking place across the UK in February and March. They are designed to update you on a range of employment tax matters that businesses may wish to consider ahead of year end and offer a great opportunity for peer-to-peer networking. Key issues to be discussed include an overview of recent HMRC compliance activity including Know Your Customer, case law and HMRC practice update, plus a summary of ongoing and planned consultations. The content will be of interest to financial directors, financial controllers and those involved with PAYE and NIC matters. For a full agenda and to register your attendance, please follow this link.

Consultation issued on remittance basis charge (RBC)

Also at Autumn Statement 2014, the Government announced it would consult on changing the claim to pay the RBC from a yearly basis to a period that applied for a minimum of three years. The aim is to require non-UK domiciled individuals who have been resident in the UK for at least seven out of the previous nine tax years, to commit to paying the RBC for a minimum period. The Government is seeking to reduce opportunities for non-UK domiciled individuals who arrange their tax affairs in such a way that the RBC is paid irregularly.

The consultation, launched on 22 January, seeks to understand the reasons why individuals choose not to pay the RBC each year and why this can change from year to year. It seeks views on how a minimum claim period for the charge might apply but also any alternatives that would similarly meet the Government's objectives. The Government is not seeking views on the increased remittance basis charges announced at Autumn Statement 2014. The consultation runs until 16 April.

Scottish Government revises tax rates on residential property

On 21 January, John Swinney, the Deputy First Minister, advised the Scottish Parliament that he has reviewed and revised the proposed tax rates and bands which will apply for the new land and buildings transaction tax (LBTT) from 1 April 2015. The tax rates and bands do, however, remain subject to the approval of the Scottish Parliament.

The Scottish Government is proposing that no LBTT be paid on the first £145,000 of any house purchase, this is an increase of £10,000 from the previous proposal; the equivalent amount under stamp duty land tax is £125,000. A new tax band has been created between £250,000 and £325,000 charged at a rate of 5%, however, the 12% tax rate now applies above £750,000 whereas under the previous proposal it did not apply until the purchase price exceeded £1,000,000.

LBTT is a progressive tax meaning only that part of the purchase price falling within each of the bands is charged at the tax rate for that band. More detail is available here.

Guidance issued by Charity Commission on trustees' approach to tax reliefs

On 21 January, the Charity Commission published its regulatory guidance to trustees on the use of fiscal reliefs available to charities, including participation by charities in tax avoidance arrangements.

The guidance suggests that the trustees' fiduciary duty makes it appropriate for them to engage in reasonable and prudent tax planning. In addition, trustees may properly seek to organise their charity's affairs when carrying out particular activities or transactions in a way which minimises the charity's liability to tax.

However, in their use of fiscal reliefs, trustees must have regard to their duty to act prudently in the best interests of their charity and must not enter into any arrangements which can damage the reputation of the charity and may bring it into disrepute. The report notes that trustees will risk scrutiny and potential investigation by the Commission if they engage in tax arrangements which exploit tax legislation artificially, particularly where they serve to benefit private interests, as well as those of the charity. Charities must not engage in or be associated with tax evasion or tax fraud.

VAT Mini One Stop Shop (MOSS) compliance tool

The changes to the EU VAT place of supply rules for digital services and the introduction of the MOSS with effect from 1 January 2015 represent some of the most significant VAT developments in recent years. Aside from the additional VAT reporting obligations, the changes also have wider financial, commercial, legal and practical implications.

Our technology-based MOSS compliance tool automates the preparation of the MOSS returns, with added functionality and flexibility to undertake control checks, produce management reports to support compliance and monitor the impact of the new VAT rules on commercial profitability.

For more details about our MOSS compliance tool please click here.

Spain to introduce country-by-country reporting obligations for multinationals

On 20 January, the Spanish Secretary of State for the Treasury announced that the Government will include a country-by-country reporting obligation for multinationals in the new Corporate Income Tax Regulations. These regulations are expected to be adopted in the first half of 2015 and enter into force on 1 January 2016.

It is likely that the information will have to be delivered to the tax administration in 2017 when the corporate income tax return for 2016 is due to be filed. No draft bill has been released yet but, in principle, the measure will require that multinationals exceeding a certain turnover will have to file a comprehensive report reflecting the activity and taxes paid in every country where they operate. The reporting obligation is expected to require data such as the number of workers, headquarters, permanent establishments and sales in every country.

For more detail please see our international tax alert.

Anti-abuse clause in the EU Parent-Subsidiary Directive

The EU Council of Economic and Finance (ECOFIN) has confirmed the adoption of the amendment to the EU Parent-Subsidiary Directive to introduce an anti-abuse clause. Member States can apply stricter national rules, as long as they meet minimum EU requirements. Member States will have until 31 December 2015 to introduce the anti-abuse rule into their national law. The same deadline applies for transposition of the separately agreed amendments to tackle hybrid loan mismatches.

China releases proposals for introduction of an advance tax ruling procedure

On 5 January, China's Legislative Affairs Office of the State Council released a discussion draft on revisions to the tax collection and administration law for public comments by 3 February.

Among the proposals is one for the introduction of an advance tax ruling procedure. Under this proposal a taxpayer may apply for an advance ruling with the provincial and higher tax authorities for complicated future transactions. The final ruling will be issued in writing and be binding unless the facts change. It is also proposed that, in a change to the tax dispute administration process, a taxpayer will be allowed to defer a tax payment until the appeal process is completed.

European Court challenge to the application of VAT to legal services

A case has been referred to the Court of Justice of the European Union (CJEU) in which the Belgian legal profession argues that by making services supplied by lawyers subject to VAT (irrespective of whether the client is registered for VAT or qualifies for legal aid) EU VAT law is incompatible with various European conventions which seek to ensure effective access to justice. The referral also asks whether services provided by lawyers under a legal aid scheme qualify for exemption under any provision of EU VAT law.

Until 31 December 2013, legal services were exempt from VAT in Belgium. Belgium withdrew this exemption (the last EU Member State to do so) with effect from 1 January 2014, whereupon services supplied by Belgian lawyers became subject to the standard rate of VAT. However, the Belgian legal profession is challenging the position through the domestic courts, and now the CJEU.

Other international tax alerts

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

South Africa: The new withholding tax on interest is effective from 1 March 2015. It is levied at a rate of 15% on the gross amount of interest that is paid or becomes due and payable to foreign persons.

France: The 2015 French Social Security Financial and Income Tax Bills will introduce some changes to the income tax and social security rates and bands, including the end of the 75% tax rate.

Nigeria: The 2015 budget has been released. It proposed a 5% increase in VAT as well as various other changes to increase tax revenue by widening the tax base.

Ecuador: The Government has issued regulations to implement new tax reforms, including tax on the direct or indirect transfer of stocks and shares of Ecuadorian entities and withholding tax on dividends.

Korea: The Korean Supreme Court has held that the royalties paid to a US licensor for the use or infringement of a patent right registered outside of Korea are not Korean source income and, therefore, not subject to withholding taxes in Korea.

Other publications

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.

Tax Focus web seminar 28 January: diverted profits tax

Email Sarah Chong

+ 44 20 7783 0859

Base erosion and profit shifting public consultations

Email Claire Hooper

+ 44 20 7951 2486

Financial Transaction Tax: revised initiative proposed by France and Austria

Email Rod Roman

+ 44 20 7951 1549

Publication of draft Scotland legislation

Email Paul Gallagher

+ 44 131 777 2822

2014 global transfer pricing tax authority survey

Email Simon Atherton

+ 44 20 7951 4892

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

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