Gaines-Cooper loses in Court of Appeal - Residence rules revisited

Two years ago the Special Commissioners determined that Robert Gaines-Cooper had retained his domicile of origin and that the frequency of his visits to the UK meant that he was resident and taxable here.

The Commissioners decision was upheld by the High Court and now also by the Court of Appeal. The Judges dismissed Mr Gaines-Cooper's appeal as 'nothing more than an illegitimate attempt to reargue the facts.'

Perversely the case may not be wholly good news for HMRC. In stressing the hurdles that need to be overcome to lose one's domicile of origin, the case also makes it more difficult for HMRC to successfully challenge the claims of non-doms in the UK that they retain their domiciles of origin overseas.

This case was the catalyst for the new rules for determining residence and domicile for tax purposes. These were announced in the 1997 Pre-Budget Report and then, after much backtracking and clarification they were introduced in the 2008 Budget and Finance Act.

In the meantime the Residence and Domicile 'bible' for advisers, IR20, has become out of date. However, as reported previously on the TaxBuzz blog, HMRC are inviting advisers to suggest the issues that an updated IR20 should cover.

The Court of Appeal decision may be the end of the road for Mr Gaines-Cooper although one assumes that his legal advisers thought there was a strong enough case to appeal this far. Whether he has the stomach for an appeal to the House of Lords, or will be granted leave to make such an appeal seems unlikely.

Tax breaks for small business - an off the wall idea?

As we enter a period of recession expect to hear calls for more 'tax breaks' and promises of these from politicians on all sides. 'Tax break' is a more accurate term than the alternative of 'tax incentive' which has previously been used despite the inbuilt inaccuracy of the term. The truth is that so called 'incentives' are simply rewards for spending money in ways that the Government wishes to encourage.

Wikipedia's current definition of 'tax break', whilst US in style, seems quite clear to me:

A tax break is a tax saving. This includes:

• Tax exemption, an exemption from all or certain taxes of a state or nation in which part of the taxes that would normally be collected from an individual or an organization are instead foregone.
• Tax deduction, an expense incurred by a taxpayer that is subtracted from gross income and results in a lower overall taxable income,
• Tax credit, more valuable than an equivalent tax deduction because a tax credit reduces tax dollar-for-dollar, while a deduction only removes a percentage of the tax that is owed.

Then reason I prefer this term to 'tax incentive' is that the latter is a complete misnomer when it comes to decisions made by most owners of micro and small businesses - who are often the main target of the so-called 'incentive'. The problem being that the targets are rarely aware of the incentives and even if they do hear about them they either don't qualify or can't afford to invest the money required to benefit from the 'incentive'.

A couple of examples will suffice:

• Research and development tax credits - these don't so much incentivise investment in R&D as reward those who have spent the money - some time after the money has been spent; If your expenditure qualifies your subsequent tax bill will be reduced or you will receive a tax refund - at such time as you would otherwise have paid your corporation tax;
• Annual Investment Allowance - again, not so much an incentive to acquire qualifying plant and machinery expenditure as a reward. Actually this is a very welcome simplification. The 100% relief removes the need for anyone to worry too much about the distinction between such capital expenditure and other business expenditure.

The problem with tax incentives and tax breaks is that so many people seem to misunderstand what's really going on. In business terms neither tax breaks or tax incentives actually impact decisions, other than at the margins. A pro-active accountant will, for example, encourage a client to advance expenditure plans into the current tax year so as to secure the tax benefits a year earlier than would otherwise be the case. But either the business has access to the funds or they don't.

The promise of tax relief at least 9 months (often more) down the line, by way of a tax break or a tax incentive is NOT going to have a significant impact on business owners' motivation. And, more than anything else it isn't going to provide the funds to facilitate the expenditure that is supposed to have been encouraged.

The only way I can see to do this is to effectively subsidise the cost of the items in question so that the purchaser only plays, say 70% of the normal price. The vendor then recovering the remaining 30% of the price from HMRC. This is not a million miles away from the way that the GiftAid system works for charities. We give them a donation and they recover a related sum (of tax) from HMRC.

Would this work? Is it worth considering further?

Tax advisory opportunities as we enter a recession?

I wasn't sure whether to post this here on the TaxBuzz blog or on my separate blog containing more general advice and tips for ambitious accountants. This tax insight is also related to one of the points I will be addressing in a forthcoming seminar on 19 November: Mastering the Credit Crunch - your practice, your advice, your future. (NB: Places filling fast!)

Obviously no one wants to pay MORE tax at any time. But with increased pressures on margins, cashflows and financing costs it becomes even more important to ensure that clients aren't paying more tax than they need to.

During my talks to accountants I often stress the need to ensure that clients perceive that their accountant is giving proactive tax saving advice. That often means the accountant needs to spell out to the client the tax implications of any advice and work rather than simply hope the client will somehow find out. There are plenty of accountants around who do a fine job but whose clients don't know this and maybe even assume their accountant isn't trying to save them tax each year.

Beyond the day to day issues relevant to many clients and taxpayers (eg: claiming all allowances, reliefs and deductions) the current financial situation also presents additional tax planning opportunities.

These incluse capital gains tax mitigation, inheritance tax planning and the managing the taxes that can arise when reorganising groups of companies, such as on demergers or sale.

Falling share and property values actually present specific tax planning opportunities for the wealthy - in terms of CGT and IHT, also for those companies wanting to incentivise staff through share option schemes.

Not all accountants have the necessary specialist expertise to advice on such matters. And it's rarely low cost advice so it's not for everyone. Many accountants outsource such specialist tax expertise. I'll be addressing these and many other subjects in a talk I'm giving to accountants next month: Mastering the credit crunch - your practice, your advice, your future.

So, are there more or fewer opportunities for tax planning as we enter a recession?
My own view is that certainly aren't fewer opportunities. There may be fewer people willing pay good money for advice, but if the cost/benefit equation is right then there's no need for accountants to worry. Service and value for money are as important as ever.
What do you think?

Partnership tax enquiries

I've been hearing that HMRC are focusing more attention than ever before on the tax affairs of professional firms. And this means the tax affairs of more accountancy firms (and their clients eg: law firms and other professional partnership clients) are likely to come under increased scrutiny.

When I was in practice we tended to discourage clients from claiming excessive deductions in respect of business use of car, business use of home phones and payments ostensibly for spousal support. In addition to these items which are often still relevant, HMRC are asking about two other partnership expenses:
- ex-gratia payments to departing partners (paid to encourage them to go quietly and quickly - and thus for the benefit of the trade); and
- recruitment fees paid to source and secure new partners from outside the firm.

In both of the latter cases HMRC's starting point is that the expenditure does not qualify for tax relief. I'm not aware of anyone securing tax relief in eaither case - simply becuase HMRC are keeping their enquiries open in the hope of securing a definitive view in each case, once the matter has been before the Commissioners.

Finally there are two other partnership specific issues that also feature in HMRC enquiries:
- the basis of computing accrued income under FRS5 and UITF 40; and
- the justification or otherwise as regards provisions that are supposed to comply with FRS12.

Some people mistakenly assume that only Limited Liability Partnerships (LLPs) need worry about those accounting related issues. After all only LLPs are required to produce accounts that comply with Generally Accepted Accounting Principles (GAAP). But all partnerships - indeed all traders - are required to compute their tax charge by reference to profits calculated in accordance with GAAP. Thus all partnerships are required to comply with the same accounting requirements, if not in their accounts then in their adjusted profit computations for tax purposes.

HMRC hires retired tax advisers

Now that's going to come as a shock to a few people. It was included in that report from Reuters to which I referred in my tax blog post yesterday.

I've long been aware that HMRC employ accountants to assist with the accounting issues that arise when Inspectors are reviewing business and company accounts. Indeed when an accountant in practice tells me that a Revenue official has made an ill informed comment about a client's accounts I suggest that the accountant asks for the matter to be referred to a revenue accountant. One of the roles is specifically to help their colleagues and to reduce the time wasted on 'non points'.

But - 'retired tax advisers'? Now that could put the cat among the pigeons. You shouldn't have anything to worry about of course as long as you have nothing to hide.

I suspect that initially the 'retired tax advisers' will be expected to provide insights and advice in connection with large corporates and corporation tax issues. Will they also suggest questions, challenges and arguments to adopt in negotiations with accountants who advise 'smaller clients'? We'll have to just wait and see.

Perhaps this is a further prompt of what to do when tempted to advice on tax related issues with which you're not totally familiar. You could try a bit of research. You could ask a mate. Or you could speak to an independent tax specialist adviser. And where better to find one than in the Tax Advice Network? ;-)

Conservative tax proposals to help small businesses

Has someone announced that we're going to have a general election next month? The detailed 'proposals' called for by the Conservative party this week are the sort of thing I would expect to hear about at election time.

These proposals, announced by David Cameron in the Observer and aired during an interview on BBC Breakfast this morning are quite detailed and, sad to say, entirely academic.

I suspect that the idea is to give some idea as to what the Tories would do if they were in power at this time. A series of proposals. And that's a good thing. But have these ideas been thought through or are they nice soundbites designed to generate some useful headlines?

Cameron proposes 1p cut for firms
This is a 1% cut in employers' NICs for businesses employing four or fewer staff. And only for 6 months. Given where we are now that would mean partially in the current tax year and partially in the next tax year. I hate to imagine the administrative hassle this would cause - even if it were possible to get HMRC and taxpayers' software systems to cope. And that's a BIG if.

I think the costs of managing this and dealing with the inevitable errors will exceed the (upto) £600 saving to the employer that the proposal is said to be worth. Thank goodness it's just a proposal by an oppoition party and not a realistic policy.

Six-month VAT holiday for small and medium-sized firms
No need to pay to HMRC the VAT collected from customers for six months to assist cashflow.
I can see good and bad in this 'proposal'. What do you think?

Small companies’ rate of corporation tax to be reduced to 20p
Not mentioned by David Cameron in the TV interview but included in the statement issued yesterday by Alan Duncan, the Shadow Secretary for Business. And it was also in The Observer.

I can just imagine the Treasury's reaction this one. The rate is being increased to counter the impact of Gordon Brown's ill judged introduction of a zero rate of corporation tax. This led to hundreds of thousands of small businesses to 'incorporate' and save tax. Various attempts to counter this were subsequently introduced, most recently a steady increase in the small companies rate of corporation tax.

What I did like about these announcements is the evident focus on the "vast majority of businesses that are 'small and medium sized'". But don't be misled. The definitions commonly used for small and medium sized companies are not what you might think. This becomes obvious if you consider the Government's definition (as imposed by the EU) simply of 'small' companies:

A company (or group) qualifies as a small or medium-sized company (or group) if it meets two out of three criteria relating to turnover, balance sheet total and number of employees:

• Turnover: Upto £5.6 million. (Five point six million pounds)
• Balance sheet total: Upto £2.8 milliion.
• Number of employees: Upto 50.

What I find most odd though is that David Cameron, in his Observer piece refers to "a typical small business with 50 employees". Er, no. Something like 95% of small businesses have less than 5 employees (sorry, can't trace the statistics that show this at the moment). Once a 'small business' gets upto 50 employees it's about to be reclassified as medium sized.

Tax advisers beat HMRC 60% of the time

Reuters reported today that the Parliamentary Public Accounts Committee has urged the Revenue to get tough on businesses dodging corporation tax and to sharpen up its investigations into compliance.

Whilst the message may be right I can't agree with the two quotes attributed to the committee's chairman, Edward Leigh:

"The fact nearly 60 percent of the Department's enquiries into compliance turn out to produce less than one percent of the additional tax raised constitutes very poor targeting,"

"It's extraordinary there's no correlation between the resources HMRC commits to each inquiry and the amount of corporation tax in question."

I'm trying to be objective here. Turn that first percentage around and you find that 40% of HMRCs enquiries are generating meaningful returns on the investment of time and effort. In the other cases it is possible that there was no material tax capable of being collected. Equally the taxpaying company, their accountants or tax advisers may have succeeded in defending HMRCs challenges. The tax at stake could have been high but HMRC eventually had to back down. They won't always have been wrong to open the enquiry. Will they?

On the second point, I think it's 'extraordinary' that the Committee seems to expect HMRC to become psychics. The quantum of tax collected as a result of an enquiry or an investigation cannot be determined at the outset. The amount at stake MAY become apparent during the course of an enquiry or investigation - even then this won't always be the case. But what does the committee expect HMRC to do? Close down all enquiries where the tax at stake is below a deminimus amount? Wouldn't we all like to know how much that is......................

I'm no apologist for HMRC and I've long been among the first to criticise and complain about their procedures and approach. But I'd like to think I'm fair too.

What do you think?

The new penalties regime - making tax taxing

Have you seen the latest adverts by HMRC for filing tax returns? Moira Stuart is the new celebrity face of HMRC and the print ads focus on a reminder to:

"Keep your tax affairs in order and you'll avoid a penalty"

The TV ads however simply contain a reminder of the new filing deadline of 31 October for paper returns. And at the end of the ads Moira repeats that old line that so annoys those of us who know something about the tax system:

"Tax doesn't have to be taxing"

It's not her fault though. By her own admission she's not a tax expert and knows precious little about the tax system beyond how to avoid penalties - presumably by fling before the deadlines.

I found a short video piece of Moira being interviewed about the ads. This video then continues with an interview with Clare Merrills who has featured in previous HMRC podcast too. I thought she came across exceptionally well. If I was writing for the general public I'd highlight some of the points she made but they aren't really relevant to his blog. You can watch it though by clicking on this link to the HMRC video.

Getting back to the print ads, these contain some important warnings that are worth stressing to all clients and taxpayers - even though they are more relevant to next year's tax returns - as the quality of records being maintained NOW will impact the care with which those returns can be completed:

"Completing your Tax Return is a lot less stressful if you keep all your records in order and check with us [HMRC or your accountant!] if there's anything you are uncertain about.
And this is more important than ever.
From April 2009, if you make a mistake on your Tax Return and can't show that you took reasonable care to get it right, you will have to pay a penalty."

If you're not yet familiar with the new penalties regime, you should be. Briefly, penalties for tax errors (related to tax returns due after 1 April 2009) will be imposed on four different scales according to the category of behaviour the taxpayer is judged to fall into. These categories are:

a) Making a mistake in spite of taking reasonable care: no penalty

b) Failing to take reasonable care: up to 30% penalty

c) Deliberate inaccuracy: 20% to 70% penalty

d) Deliberate and concealed inaccuracy: 30% to 100% penalty.

HMRC have released guidance on how they will interpret the new rules in the Compliance Handbook Manual. You may be surprised to learn what HMRC consider to be a deliberate inaccuracy in para CH 81150:

“deliberately withdrawing money for personal use from an incorporated business and not making any attempt to make sure it is treated correctly for tax purposes.”

How many of your clients are slightly slack with their paperwork and thus would fall into the ‘deliberate inaccuracy’ category, attracting a penalty of up to 70%?

The use of the company to pay personal expenses can be viewed by HMRC as a deliberate and concealed inaccuracy as demonstrated in para CH 81160:

“describing expenditure in the business records in such a way as to make it appear to be business related when it is in fact private (possibly with the supplier agreeing to change the description on the relevant invoices)”

The inference is that an incorrect entry in the prime records of the company could be enough to put your client in the worst category of behaviour potentially attracting a penalty of up to 100%.

Back in August we addressed this issue in one of our weekly tax updates for accountants in general practice. I have also addressed the point in an earlier blog post: 'Take care to avoid a penalty' in which I provided some salutary warnings and advice to accountants who were not yet familiar with the new regime.

Telling the taxman about undisclosed earnings

The lead comment piece in this week's Taxation magazine comes from Mike Thexton who, like me, regularly lectures to accountants. The article is a wonderfully told story about a recent experience he had after a friend sought his help with resolving a tax problem. And there is a key lesson I want to highlight in this blog post. If it resonates with you please add a comment below.

Mike says it all started with 'the dreaded question'. When someone who knows you are an accountant (or in his case a VAT lecturer) asks for your help in resolving a tax problem that requires knowledge and experience way outside your comfort zone. As Mike says, it's because people tend to assume that accountants know about all things tax, just like they assume that doctors know about all things medical.

Mike describes himself as "A VAT lecturer who prepares a few personal tax returns each year - I have never dealt with disclosure and settlement of underdeclared liabilities." He then asks himself a key question: "Should I simply pass [this] on to someone else?"

When I read this my mind immediately went back to a key paragraph in the Guide to Professional Conduct in Relation to Taxation'. (I sit on the pan professional body working party that is updating the 2004 version for the ICAEW, CIOT and 5 other professional bodies):

“Members will from time to time find themselves having to advise on matters which require specialist knowledge. In such circumstances they should be careful not to go beyond their own level of competence and, if necessary, should seek help from a specialist in the field”.

Mike complied with this advice and sought the input of a friend who chairs the tax investigation service at Baker Tilly, a top ten firm of accountants.

I've summarised below some of the key lessons drawn from Mike's article:

• "Do not do this by yourself if you have no experience" - This accords with the Guidance above and was the recommended advice given to Mike by John Newth;
• "Find someone who knows what to do. The client may baulk at the level of fees, but it is likely to be worth it in reduced trouble and penalties"
• "What was unfamiliar to [Mike] was routine to someone who works in investigations."
• You need to address the underpayment of Class 2 NICs totally separately to the underpaid income tax and Class 4 NICs which were to be covered by the main settlement.
• The relative speed of securing a full settlement with maximum mitigation of penalties when you know what you're doing.

And possibly the most surprising observation of all - that Mike found his "limited adventure in investigations was an unusually positive experience". He also found the local tax office "helpful, efficient and reasonable." This is probably a reflection on the way that Mike and his friend approached the matter and that they did so as guided by a tax investigations specialist. What do you think?

For others faced with similar situations I would suggest that the independent tax investigation specialist members of the Tax Advice Network should be your first port of call.

No £100 penalty notices until February 2009

In my posting on the blog yesterday I suggested that the 31 October filing deadline for tax returns is a white elephant.

There is one other piece of the jigsaw that I should clarify. It was the one thing I wasn't absolutely clear about until recently. That is at what point would HMRC's computer start issuing £100 penalty notices for paper based tax returns filed late (in November, December and January)?

As the late filing penalty legislation was unchanged I was pretty sure (but not 100% confident) that HMRC's computer would NOT issue penalty notices until after the 31 January deadline.

Imagine filing a paper based tax return in November 2008. In theory this might trigger a £100 penalty notice. This would appear on the next statement of account issued to identify the tax payable on 31 January, once the late tax return was processed. Assume then that the full balance of the tax and penalty was paid by 31 January. Well, the £100 would then be refundable as there was no unpaid tax at 31 January. Equally I couldn't imagine HMRC using heavy handed collection procedures to chase for prompt payment of the £100 penalty knowing that it could well be repayable within a matter of weeks.

As I say, I was pretty sure that HMRC's computer would only charge the £100 penalty if a paper based tax return was filed after 31 October AND there was outstanding tax at 31 January. And despite all the hype and the focus on who would or wouldn't have a 'reasonable excuse' for late filed paper based tax returns, I've now seen definitive confirmation as follows:

A penalty for late filing of a paper return will not be generated by HMRC systems until after 31 January 2008. This is to allow HMRC to determine the amount of the penalty, which is £100 or the amount of tax outstanding at 31 January, whichever amount is smaller. The penalty will therefore be reduced to nil if all tax due has been paid by that date.

The self-assessment statements that go out from 24 February will therefore either show a penalty that is still outstanding, or a penalty that has been reduced to nil.

NB: The position is NOT the same for partnerships - as explained in yesterday's post and an earlier one specifically about partnership tax returns.

Is the 31 October deadline largely a white elephant?

In Summer 2007 I was speaking at a series of seminars around the UK as part of the ICAEW Tax Faculty's annual Roadshows. One of the issues I addressed was the potential impact of the new filing deadline.

Everyone was aware that Lord Carter's original proposal had been watered down in response to pressure largely from the profession (and co-ordinated by my friend, Paul Aplin). On each occasion I spoke I asked the question:

"But what does the 31 October filing deadline mean in practice?"

The answer I gave surprised most delegates and was often challenged by members of HMRC who heard me in advance of their own speaking spots during the seminars.

More recently my conclusions have been challenged by some accountants who have been taken in by HMRC publicity for the 31 October deadline. However HMRC have now effectively confirmed what I've been saying for over a year:

If you file a paper based tax return in November, December or January you will not be liable to pay the £100 late filing penalty as long as all tax due is paid by 31 January 2009.

So is the 31 October filing deadline a white elephant?

Well - not if you're involved in a partnership. The £100 penalty has always applied to the partnership and to each of the partners if the partnership return is filed late. And it's not rebated to nil. This is the reason why I highlighted, in an earlier blog, the importance of the deadline for professional firms that do not file their own partnership returns online.

It's also worth remembering that the enquiry window now closes 12 months after a tax return is filed so 'late' filed paper based tax returns extend the time period during which HMRC can open an enquiry into that return.

In their latest Self Assessment online filing update for agents HMRC skirt around the issue of the effective impact of the 31 October deadline. The focus is on whether a taxpayer who files a paper based return after this date has a 'reasonable excuse'. But this all seems to me to be a red herring. As long as all the tax due is paid by 31 January no penalty will be charged so there will be no need to consider whether there was a 'reasonable excuse'.

Finally I should stress that it would be unprofessional to suggest that clients can ignore the 31 October deadline simply because there is no effective penalty as long as they pay all of the tax they owe by 31 January 2009. But, in practice if you intend to file online and subsequently find that this is not possible for whatever reason you need not panic.

Ten tax mistakes that could result in professional negligence claims

• Omitting to consider the VAT implications of significant property transactions;
• Loss of tax credits as entitlement not claimed early enough – eg: when unincorporated business client suffers a loss;
• Failure to claim research and development tax credits before deadline;
• Omitting to reorganise group companies to reduce ‘avoidable’ tax charges;
• Failure to advise clients to correct their payroll procedures so as to reduce penalties;
• Omitting to provide ‘standard’ tax planning advice on arrival or departure from UK, on mergers, on acquisitions, pre sales;
• Ignoring consequential adverse implications leading to avoidable tax liabilities (eg: VAT, SDLT, IHT, NICs, Customs duties etc) when giving commercial or ‘basic’ tax advice;
• Omitting to compute and report the tax consequences of transactions such as disincorporation;
• Failure to ensure that all relevant criteria are satisfied to facilitate a claim for specific reliefs (eg: Enterprise Investment Scheme);
• Assuming that there would be no liability to inheritance tax and failing to advice as to how the real liability could be reduced;

The above list forms part of the material covered in my regular talks for accountants and tax advisers on the subject of 'How to avoid professional negligence claims'

Doesn't the taxman trust tax advisers?

A recent Special Commissioners decision contains a number of important lessons for accountants and tax advisers as it effectively revolves around the issue of whether HMRC believe assertions made by accountants.

You can access the full facts and details of the case of Mr M Ransom v Revenue & Customs [2008] UKSPC SPC00708 if you have time to read them. If you do and you have any further observations, please add them by way of comments to this blog post.

The only matter on which the Special Commissioner had to reach a decision was whether an amended tax return for 2000/01 had been filed before the effective deadline of 31 January 2003. The taxpayer's accountant claimed that the return had been hand delivered to the Woking Tax enquiry office on the evening of Friday 31 January 2003. The Revenue however argued that the amended return was posted to the office and did not arrive until 7 February 2003.

For the record the return was being amended to reflect the decision in Mansworth v Jelley. This was only published in December 2002. And let's remember that many accountants and tax advisers were under extreme pressure in January 2003. Everyone was trying to complete the necessary amendments and claims for clients who could benefit from the Revenue's published interpretation of the implications of the decision.

Returning to the present. What are the lessons that accountants and tax advisers can learn from the Ransom case?

1 - As I have recorded on this blog before (in the context of discovery assessments), it is crucial to be able to evidence all statements that are to be made before the Commissioners. There will be no second chance to represent the evidence;

2 - It is risky waiting until 31 January to file paper based tax returns and amendments to tax returns. Given the new 31 October deadline for paper based returns this issue is less likely to recur;

3 - The time lag between the start of a dispute or a challenge with HMRC and the case reaching the Commissioners can be years. In this case the argument started FIVE years ago. And this was a relatively straightforward question: When was the amended tax return filed?

4 - If HMRC have reason to question your honesty or your judgment they will pursue the matter. Ultimately the Revenue's position in this case effectively impugnes the character of the accountant in question;

5 - Even when you are in the right, do not under estimate the time and effort that will be required to produce all necessary evidence to support your contentions. In this case the accountant and four colleagues all gave evidence to counter the Revenue's challenge;

Do you have any observations about the implications of this case? Please add your comments to this blog post.