Another IR35 lawsuit: this time HMRC loses!

A judgment providing another IR35 victory for the taxpayer has just emerged, although the case was heard at the First Tier Tribunal (FTT) over 18 months ago. The case concerns Armitage Technical Design Services Ltd (ATDSL), the personal service company of Mr Armitage. John Hill represented Armitage at the hearing and both he and Armitage are happy for this case to be reported.

The case took around four years to reach the tribunal. Although the taxpayer and his advisers were convinced that the contracts were not within IR35, they didn’t want the case to drag on, so they offered to settle the tax and NIC due for the two in date years with no penalty. But HMRC refused as it wanted a penalty for negligent conduct on the basis that the taxpayer had not discussed IR35 in sufficient detail with his accountant before the P35s were submitted.

Armitage is an electrical control and instrumentation designer who has worked in the nuclear industry for decades. He contracted through ATDSL and two different employment agencies to provide his services to Diamond Light Source Ltd (DLS).

HMRC asserted that the work Armitage performed over the four years 2009/10 to 2013/14 fell within IR35. During this period Armitage completed several separate projects for DLS and also worked for other customers. The judge examined various indications of employment and self-employment set down in case law and highlighted the following points:

Substitution

DLS would accept a reasonably qualified substitute in the place of Armitage, but this was never tested in practice. The tribunal was satisfied that there was not an absolute requirement for Armitage to personally perform the tasks.

Refinancing of a buy-to-let: the tax implications

It's has been common practice in the past to refinance a property and then expense the additional interest against property income, as long as the amount borrowed was still smaller than the original cost (or the value when the property business started).

But in April 2017 HMRC rewrote its guidance to restrict deductions to those cases where the proceeds of the loan are actually used in the property business and not for other purposes.

Prior to 2017 HMRC manuals used to contain this example:

• You purchased a buy-to-let property for £120,000 with a mortgage of £90,000 and let it to a tenant straight away.
• Three years later the property is valued at £150,000 and you increase your mortgage on the property to £115,000. All of the interest on the mortgage can still be claimed as a revenue expense as the loan doesn’t exceed the initial £120,000 value of the property when it was introduced to your letting business.
• If you increased the mortgage to £125,000, the interest payable on the additional £5,000 is not tax deductible and cannot be claimed as a revenue expense.

Changes for termination payments coming in April

Here are some notable changes when it comes to termination payments:

Foreign service relief termination payments

The Government has decided that taxpayers who have worked abroad but are resident in the UK in the tax year in which their employment is terminated should be subject to exactly the same rules as taxpayers who have not been abroad. Clients will benefit from the existing £30,000 exemption only. The only exception to this change is if you are a seafarer.

In the past, employees who received termination payments and who had spent all or a large part of their employment overseas have been eligible to qualify for what is known as ‘foreign service relief’. This could potentially give them income tax relief of an amount greater than the standard £30,000 deduction. In some cases, the payment would be completely exempt from income tax.

The measure will apply to those who have their employment contract terminated on or after 6 April 2018. If the payment is received from 14 September 2017 onwards in advance of the termination of the employment, the restriction will also apply.

More restrictive PILON classification

The income associated with a contractual notice period that is not worked will no longer benefit from the £30,000 termination payment exemption. To further confuse matters HMRC are now referring to PILONs (Pay in Lieu of Notice) as ‘PENPs’(Post-employment Notice Pay) which represents the amount of pay, and/or benefits, that the employee will not receive because their employment was terminated without full, or proper notice being given.

Optimal salary for a company director - 2018 update

It’s that time of year when we need to look at the level of salary that company directors should be paying themselves from 6th April.

As in previous years, the main question is whether to pay a salary up to the Personal Allowance level or whether to pay a salary to the level at which National Insurance kicks in. We would generally recommend the second option to reduce administration. TL;DR: if the director has no other income and the Employment Allowance will be used up against other staff salaries then the best option would be for the director to be paid a salary of £8,424 (£702 per month). This should be topped up with £37,926 of dividends.

If the director is owed money by the company however they could also charge interest on their loan account so this may be an additional consideration for some. In the following it is also assumed the director wishes to stay below the higher rate tax band threshold for personal income tax. It is also assumed that they have no student loan balance, are not caught by IR35 and have a full personal allowance. It is assumed they are UK resident and have no other income, capital gains and there is no relief from tax to claim such as gift aid or pension payments.

Don't expect HMRC to be rational with VAT rules

February 14th saw Nestlé lose an appeal made to the UK’s Upper Tribunal Tax Court regarding the VAT rating of their strawberry and banana flavoured Nesquik powders. This case provides an excellent example of the complications and oddities that can arise in the VAT realm, and especially when it comes to food products.

Everyone will remember the Jaffa Cakes case where McVities actually managed to come on top in its fight with HMRC. No VAT is charged on plain biscuits or cakes. But when a biscuit is covered in chocolate it becomes a luxury and standard rate VAT at 20% is added to the price. Mcvities, the market leaders for Jaffa Cakes added chocolate to the cake and tangy orange base, so classifying them as cakes, not biscuits. Although the taxman challenged this, claiming chocolate biscuit status, the court ruled in favour of McVities and we don’t have to pay VAT on our Jaffa Cakes.

As a reminder, chocolate chip biscuits where the chips are included in the dough or pressed into the surface before baking are zero-rated. Bourbon and other biscuits with a chocolate sandwich layer between two halves also escape VAT. However, if your biscuit is wholly or partly coated in chocolate then VAT will be added at the standard rate. The situation is even more complex for Gingerbread biscuits. No VAT is charged for gingerbread with just two chocolate spots for eyes. However, if your gingerbread man is dressed with any chocolate-based additions, such as trousers, 20% VAT will be added.

HMRC wins first IR35 case since 2011

Former BBC presenter Christa Ackroyd lost her appeal against the tax authority when the FTT ruled that her personal service company, Christa Ackroyd Media Ltd, owed income tax and national insurance contributions (NICs) amounting to £420,000 for the tax years 2006/07 to 2012/13. This judgment is the first of a number of IR35 appeals involving television presenters who operated through personal service companies, following the mass IR35 clampdown in October 2016, with further rulings likely to arrive later this year. It is also the first IR35 case to be reported in seven years, and the first comprehensively won by HMRC since 2009.

Ackroyd co-presented the BBC's Look North programme and was engaged through her company, Christa Ackroyd Media Ltd, by the BBC on a seven-year contract to provide her services up to 225 days per year. It was reported in 2013 that after a three-month period spent off air, Ackroyd had been sacked by the corporation following an alleged dispute surrounding her freelance status and payment of tax. Court documents showed that the BBC terminated the arrangement following HMRC’s formal demand against Ackroyd’s company for unpaid tax, despite the insistence by the BBC that she offer her services through a limited company.

Ackroyd contended that her status for the purposes of the IR35 legislation was that of a self-employed contractor, and there was no further tax liability on the part of CAM Ltd. HMRC argued that hypothetically she was engaged under a contract of service rather than a contract for services, therefore she should be treated as an employee of the BBC. The IR35 rules were thus in point, and her company was required to pay the appropriate amount of tax and NICs based on here deemed employment. The FTT sided with HMRC, deciding that Ackroyd could not fairly be described as being in business on her own account. The ruling stated that she was “economically dependent on the hypothetical contract with the BBC”, which took up most if not all of her working time.

I make no money: do I still need to file a tax return?

Quite often people assume that, because they make no money, or because they don't make enough to pay tax, they don't need to make a Self Assessment tax return. Unfortunately that is not the case and failing to do a tax return when you have to exposes you to serious penalties. While for most employees, there is no need to file a tax return since tax is taken at source through the PAYE system, they are many instances where you will have to do a tax return, even if failing to do so does not impact the HMRC coffers.

Obviously, one can understand that if you have additional income that generates additional tax, you will in most instances be required to file a tax return. There are instances however where, even if there is no additional tax due, you will have to file a tax return anyhow. Here are a few examples:

1. You are a director of a Limited Company. Even if the company has not distributed any dividends, you are required to file a tax return every year. 

HMRC to stop sending SA302 for mortgage applications

Today accountants as well as their clients still have to call HMRC for a paper copy of the SA302 form which is the tax calculation for a given tax year.

It's because lenders will not accept the self-serve copy printed from the HMRC online account or the commercial software used to file the self assessment return, or their commercial software does not print an acceptable version.

HMRC has been in discussion for a while with UK Finance (formerly the Council of Mortgage Lenders) and their members to understand lenders’ requirements and make the necessary changes so that they will accept self-served copies of the tax calculation from the HMRC online account or the commercial software used to file the self assessment return.

Additional Reporting Requirements for PSC

From the 26th of June onward information on people with significant control (PSC) won't be updated on the confirmation statement (form CS01) on a yearly basis anymore. Instead, one needs to inform Companies House using new forms (forms PSC01 to PSC09) whenever there’s a change.

You have 14 days to update your PSC register and another 14 days to send the information to Companies House. Companies House will need to be informed if anyone (or any entity):

• becomes a PSC
• ceases to be a PSC; or
• their details change, such as the extent of their control or their address. 

This will make the requirements for PSCs very like those of company officers, where changes to a director or secretary have been filed on an event-driven basis for some time. This update to the information required about PSCs arose due to a change in anti-money laundering legislation; the spirit of which is aimed at increasing the transparency of ownership and control of companies in the UK and ensuring the information is more current.

Non doms: BIR rules relaxed

Business Investment Relief (BIR) is a very attractive relief for non domiciled persons who have untaxed earnings or mixed funds abroad and who wanted to invest in the UK.

It is used a lot in conjunction with EIS or SEIS investments allowing people to bring in untaxed earnings without being taxed under the remittance basis and at the same time benefit from the tax relief provided by such schemes. New legislation included in Finance Bill 2017 now makes the BIR scheme even more flexible for any investment made on or after 6 April 2017. Here are the changes:

1. The definition of a qualifying investment will be extended to the acquisition of existing shares and not just newly issued shares in a target company.
2. Where the target company is preparing to trade or hold trading investments, the period during which it must actually do so will be extended from 2 to 5 years.