Correct. It was HMRC’s Chris Martin (who was propelled into the spotlight when Harry Redknapp and Milan Mandaric were found not guilty of tax evasion) putting a good spin on a rather embarrasing defeat.

It would be rather pointless to recap the events of this rather well publicised trial.  But what might be more interesting is to think about what this means to other tax payers.

First if you are a sportsperson then it’s probably good news.  My understanding of the oft mentioned £8m campaign was that it related to the whole operating to look into fraud in sport (not just Redknapp’s trial).  I also understand that it has led precisely nowhere.  If anyone from the Met is reading this, feel free to set me straight.  So politically, and economically, it seems that this campaign might be over faster than you can say “transfer fee”.

If you are a tax evader, it probably makes no difference.  I’ve not yet read the full case report but if HMRC can’t prove tax evasion then they won’t get very far.  I don’t want to do their work for them, but HMRC’s powers to get information from offshore tax havens is always increasing and the UK has entered into a number of Tax Information Exchange agreements that greatly assist in tracking down fraudsters.  If you are one of those, then Chris Martin (not that Chris Martin – the one at the start of the blog), is probably right.  There are a number of disclosure facilities which may result in a reduction in any penalties and it is worth speaking to an expert before turning yourself in!

There is nothing wrong per se in having bank accounts in tax havens, provided that you make sure that any tax planning is done properly.

If you are expecting a bonus, I also wouldn’t take this as carte blanche to become friends with your boss and ask for some seed money for your investments.  The law hasn’t been changed by this judgement – a bonus is still taxable, and it will be a question of fact as to whether or not a payment is a bonus.  The assumption should generally be that it is taxable, and any derogation from this would require professional advice.

There are also a lot of rather more “vanilla” and rather more tax efficient ways of motivating employees such as share options, which should be considered before paying sums into bank accounts in Monaco in the name of your dog!

If you would like to discuss any of these points, please contact our wealth management or employment teams.

When a person dies “intestate” (i.e. dies without leaving a valid Will that disposes of the deceased’s estate), the distribution of that person’s assets (or “estate”) among surviving family members is governed by the intestacy rules. However, the intestacy rules, which date back to 1925, have not been comprehensively reviewed for more than 20 years and the Inheritance (Provision for Family and Dependants) Act 1975 has not been vigorously reviewed since it was enacted, although it does now cover cohabitants, civil partners and same-sex cohabitants.

The Law Commission’s recommendations are included in two draft Bills: The draft Inheritance and Trustees’ Powers Bill and the draft Inheritance (Cohabitants) Bill.

The draft Inheritance and Trustees’ Powers Bill includes provisions that would do the following:  

1. Ensure that the assets of a married couple or a couple in a civil partnership will pass on intestacy to the surviving spouse in all cases where there are no children or other descendants;

2. Amend the legal rules which currently disadvantage unmarried fathers when a child dies intestate;

3. Simplify the sharing of assets on intestacy where the deceased person was survived by a spouse and children or other descendants;

4. Protect children, who lose a parent, from the risk of losing an inheritance from that parent if they are adopted after the parent’s death;

5. Remove obstacles to family provision claims by dependants of the deceased and anyone treated by the deceased as a child of his or her family outside the context of a marriage or civil partnership;

6. Permit a claim for family provision in certain circumstances where the deceased died “domiciled” outside of England and Wales, but left property and family members or dependants in the UK; and

7. Give all trustees more flexible statutory powers over the trust’s income and capital (subject to any express provisions in the trust instrument.)

The draft Inheritance (Cohabitants) Bill gives certain unmarried partners who have lived together for five years the right to inherit on each other’s death in the event that one of them dies intestate. In instances where the couple have a child together, this entitlement to inherit would accrue after just two years’ cohabitation, provided that the child was living with the couple when the deceased died. An application to the Court under the Inheritance (Provision for Family and Dependants) Act 1975 would therefore not be required.

This change, if implemented, would give unmarried couples similar rights to married couples in instances when one person dies without leaving a Will. With an estimated 2.3m unmarried couples living together (a figure expected to rise to 3.8m by 2033), the recommendations reflect the fact that cohabitation is much more prevalent in the UK than it was 25 years ago.

However, there is of course one easy solution to the problems of intestacy: make a Will and ensure that it is regularly updated.

This new Act repeals and consolidates all charity legislation: the Recreational Charities Act 1958, the Charities Act 1993 and many of the provisions of the Charities Act 2006. However, it does not change the law.

The reason for the consolidation is that charity legislation has long been criticised for being disparate and hard to understand; a new Act that consolidates charities legislation in one place was seen by the Government as a way of making charity law more accessible to the general public and third-sector organisations.

However, this is not the end of the story.

A review of the Charities Act 2006, led by Lord Hodgson, will also take place in 2012 and will consider substantive changes to the law. The review will look at a range of issues, including the definition of “charity” and the role and status of the Charity Commission as the sector’s regulator, and will consider whether the Act is still “fit for purpose” five years after it was passed. Click here for full details.

Any legislative change is likely to be some way off, with Lord Hodgson expected to complete his review by summer 2012 and then to submit a report on it to Parliament before the summer recess.

The Act received Royal Assent in July 2011 (click here for details) and preserves the succession rights of the descendants of a person who:

1. Disclaims (or rejects) an inheritance in an estate; or

2. Forfeits his succession rights by killing the deceased person.

The Act also amends the current law so that the children of a minor are able to inherit their parent’s interest in an intestate’s estate, where the parent died before the age of 18 without having married or formed a civil partnership.

The Act will not apply where a death occurs before the commencement of sections 1, 2 and 3 (i.e. before 1 February 2012.)

Full details of the Act are here.

In its recent second annual report on the competitiveness of the UK tax system, the Institute of Directors (IoD) has suggested that capital gains tax and inheritance tax should be merged in order to help simplify the UK tax system (much in the same way as the integration of income tax and national insurance would do.) The IoD suggests that capital gains tax should be charged on those assets held at death above a fixed and “reasonably generous” (but unspecified) threshold, and that inheritance tax could then be abolished. Its full proposals are here (see page 26.)

This is not the first time that the IoD has put forward suggestions to change the tax system – in 2007, an IoD discussion paper called for the abolition of capital gains tax and inheritance tax – and it is an idea that has been mooted by others for some time.

Following on from Spain’s possible prosecution at the hands of the European Commission for discriminating against non-residents, the Commission has now referred the Netherlands to the European Court of Justice (ECJ) for discriminatory rules on inheritance and gift duties, after it failed to amend its laws following a formal request in September 2010. Under Dutch legislation, country estates located in the Netherlands are fully or partially exempt from succession and gift duties if they are open to the public, while inheritance or gifts of country estates in other European Economic Area (EEA) States are taxed on 100 per cent of their market value. The Commission considers the difference in tax treatment to be contrary to the free movement of capital.

It is interesting, though, that UK inheritance tax laws in this area could themselves be potentially discriminatory. The UK offers a conditional exemption tax incentive (which is not limited to land in the UK) to historic houses that are open to the general public. Inheritance tax and/or capital gains tax is not paid when the qualifying property (or historic item, such as a painting or sculpture) passes to a new owner on death or is gifted. However, according to HM Revenue and Customs’ (HMRC) memorandum on ‘Capital Taxation and the National Heritage’, in order to obtain the exemption, the new owner must agree to look after the item/property, keep it in the UK if it is moveable, and allow “reasonable” public access to it. HMRC’s stipulation that public access to the property should be “reasonable” means that the relief cannot realistically be given to property or land outside the UK.

Not that the Government will be overly concerned about this.

With the EU currently threatening to sue the UK over its recently-signed tax agreement with Switzerland unless the Chancellor renegotiates it, the Government has more pressing things to worry about.

In March 2011, the Office of Tax Simplification (OTS) published its interim report on the simplification of the tax treatment of small businesses. In it, the OTS recommended that the income tax and NICs regimes should be amalgamated and that the Government should begin work towards this objective by the end of 2011.

Following the Government’s call for evidence on the matter in July 2011, it became obvious that there was a real desire for reform, with the majority of respondents stating that there are potential gains to be made from aligning income tax and NICs. Respondents recommended that (1) the system for calculating NICs should be altered to reflect how income tax is calculated, and that (2) the same employee earnings should be made subject to the calculations for both taxes.

However, any reform will take time (and will only happen if the benefits outweigh the costs of making the change.)

The Government intends to work with stakeholders over the next few months, with a view to identifying high level options for reform by Budget 2012. Even if this happens, the Government has predicted that, due to the number of consultations on reform that would have to take place and the need to give employers sufficient time to prepare for a new tax system, any reform would probably not take place until 2017. Also, it appears that any reform will focus on alignment, simplification or operational integration rather than a complete merger of the two regimes.

In the past, governments have steered away from merging or integrating income tax and NICs, so it is surprising that reform is now a real possibility. However, the Government has accepted that there could be winners and losers even if there is just an integration of income tax and NICs, so it will need to fully investigate the impact any reform could have on individuals before deciding to proceed.

The Government has also published a discussion paper that outlines its proposals for simplifying the administration of personal taxes, by making tax information more accessible to taxpayers. It believes that online and mobile technology can help to improve taxpayer awareness of their tax liabilities. The discussion paper looks at systems in other countries, where taxpayers are able to access (and input) their own tax information online throughout the tax year. HM Treasury’s view is that a system that encourages greater taxpayer engagement also encourages greater taxpayer compliance.

Interesting times…

In its coalition agreement, published in July 2010, the Government stated that there was an urgent need to reform the social care system, so that individuals and carers had more control over care. Consequently, the Government set up a Commission on the funding of long-term care, led by the economist Andrew Dilnot, which investigated alternatives for funding long-term care.

After launching a call for evidence on ideas for a future social care funding system in December 2010, the Commission published its report containing the following recommendations:

1. Capping individuals’ lifetime contributions towards their care costs – which are currently potentially unlimited – to between £25,000 and £50,000, but ideally around £35,000. After the cap is reached, individuals would be eligible for full state support;

2. Means-tested support should continue, but the asset threshold, above which people are liable for their full residential care costs, should increase from £23,250 to £100,000;

3. Individuals should contribute a standard amount of between £7,000 and £10,000 to cover their living costs;

4. National eligibility criteria for social care service entitlement should be standardised, and a more objective eligibility and assessment framework should be developed by the Government;

5. Carers should be supported by improved assessments, which aim to ensure that the impact on the carer is manageable and sustainable;

6. The Government should run an awareness campaign to help people understand the system and to encourage people to plan for later life;

7. Those individuals who have entered adulthood with a care and support need should immediately be eligible for free state support, rather than being subjected to a means test; and

8. Local authorities should have sufficient government funding in order to implement these reforms.

The Dilnot Commission estimates that its proposals – based on a cap of £35,000 – would cost the State around £1.7bn per year. It believes that the combination of a cap on contributions and the higher means-tested threshold would ensure that individuals going into residential care would not have to spend more than 30 per cent of their assets on their care costs. Currently, some people can lose over 90 per cent of their assets.

The Government plans to consult on social care reform before publishing a progress report and White Paper in spring 2012.

Whilst the report is welcome and the Health Secretary, Andrew Lansley, described it as an “immensely valuable contribution”, we are in an era of public sector spending cuts and the Government will be aware of the significant costs (and year-on-year increases) of reforming the system and supporting an ageing population. Consequently, major change may still be some years away.

For the foreseeable future, individuals must consider the financial implications of meeting their care home costs and ensure that they protect their assets through careful tax and estate planning. If you would like to discuss your options, please contact me at iain.donaldson@mablaw.com.

Inheritance and gift tax in Spain are regulated at both state level and at the level of autonomous communities (i.e. local level.) Spain has 17 autonomous communities (or “Comunidades Autonomas”) and each has a territorial basis, their own government and Parliament, and broad legislative and executive powers. This legislation grants Spanish residents a number of tax benefits that, in practice, allow them to pay much lower taxes than non-residents. Consequently, Spain has been referred to the European Court of Justice on the grounds that this practice goes against the principle of free movement of people and capital within the EU, and breaches the Treaty on the Functioning of the European Union.

This is not the first time that Spain has been in trouble over this issue. In May 2010 and February 2011, the European Commission requested Spain to amend its legislation so that it complied with EU rules on inheritance and gift tax provisions. However, although Spain “tweaked” its laws, no satisfactory amendments have yet been made.

It remains to be seen how Spain will respond to the threat of legal action, and whether it will now satisfactorily change its inheritance and gift tax laws. According to the European Commission, approximately 95 per cent of infringement cases are resolved before they reach the European Court of Justice, so we shall wait and see…

The aim of the review is to:

* Understand how the Act is operating in practice;

* Assess how effective it is; and

* Determine whether the legal and regulatory framework for charities in England and Wales is fit for purpose, now and in the future, and whether further improvements could be made.

The Charities Act 2006 made a number of changes to the legal framework for charities, but Parliament agreed that the Act should be reviewed after it had been in force for five years, so it could assess whether it was an effective piece of legislation.  

The review’s Terms of Reference include 14 specific issues that need to be considered, which were brought to the attention of the Government by the charity sector, lawyers and other interested parties. These include the following:

1. The definition of “charity” and the changes made by the Act in relation to the public benefit requirement;

2. The licensing regime for public charitable collections – are the Act’s provisions workable and do they represent value for money?;

3. UK cross-border issues;

4. Self-regulation of fundraising (as delivered by the Fundraising Standards Board (FRSB));

5. The success of the First-tier Tribunal (Charity), particularly the range of Charity Commission decisions that are appealable to, or reviewable by, the Tribunal;

6. Measures to reduce bureaucracy on charities;

7. The objectives, functions and structure of the Charity Commission, including relevant recommendations from its strategic review;

8. Measures to facilitate social investment or “mixed purpose” investment by, and into, charities;

9. The operation of the charity merger provisions in the Act;

10. Exempt charities, including the policy approach to the regulation of exempt charities;

11. The transparency and accountability of the charity sector, including current accounting and reporting/audit procedures;

12. Thresholds for registration of charities, including the £5,000 general registration threshold and the £100,000 registration threshold for excepted charities;

13. The effectiveness of organisational forms available to charities, including the Charitable Incorporated Organisation; and

14. Methods of supporting and encouraging individuals to volunteer as trustees, recognising concerns about trustee liability.

Full details are here.

Lord Hodgson is to publish a call for evidence from charities and other stakeholders in due course. He aims to complete his review before summer 2012, and a report will then be laid before Parliament.

We now hear that the Chancellor has ordered an investigation into how much the tax brings into the national coffers. HMRC has been told to report back by January.

This shows us the power of the people (well, a very select group of the people) to get the Government to take action.  Or does it?  The Chancellor has done nothing but buy himself some time here. 

Time to think has to be a good thing, and it is commendable that there hasn’t been another knee jerk reaction of “yes” or “no”.  What is glaringly obvious, to me, is that whilst economists may be in a position to opine as to how measures such as the 50% rate of tax affect the economy, this is only part of the picture.

The other part is politics; and it is the politicians who are responsible for making changes.  The damage which could be done in being seen to favour the rich at a time when unemployment is high and growth is flat lining means that the merits of the 50% rate are of secondary importance to “how it looks”. 

Just listen to the news and take note of how often you hear the phrase “send a message”.  Policy seems to be more about messages sent than the merit of the measure. 

I fully expect that when the Revenue report back on this next year, the results will not show a strong case for the 50% rate.  I’ve helped enough clients to shape their affairs to reduce the impact of the 50% rate to form my own view on the matter. 

Whatever the outcome of this review, my personal opinion of this is that it won’t matter.  It’s the politicians that shape the policy.  Call me cynical if you will, but the bottom line is that any changes made by politicians are going to be based more on politics than economics

The decision to investigate is based on advice given by the Legal Services Consumer Panel’s (LSCP) following its own investigation into the will-writing market, which began in summer 2010. The LSCP’s subsequent report found that many wills, prepared by both solicitors and unregulated will-writers, did not reflect the instructions of testators and contained many basic errors. Further background information is here and here.

Currently, will-writing is not a reserved legal activity in England and Wales, although the preparation of probate papers and the administration of oaths are. This means that the writing of wills is not restricted to solicitors and barristers, who are regulated by the Solicitors Regulation Authority and the Bar Standards Board respectively. With unregulated private will-writing companies now claiming to write approximately 10 per cent of all new wills, consumers who use them are often unaware that this incredibly important legal document may be written by someone who has little or no legal training.

In a related matter, yesterday’s national newspapers published details of the Legal Services Ombudsman’s plea to the Government to take action over unregulated companies that offer consumer financial services, including will-writing. The Ombudsman said that since it became operational late last year, it has received 38,155 complaints and accepted 3,768 cases for investigation – 13 per cent of which involved will-writing. The consumer organisation Which? and the Law Society have also called for more protection for consumers.

Change in the industry has already begun. In February 2011, following discussions with the Office of Fair Trading, some of the UK’s biggest banks voluntarily agreed to review and, where necessary, improve the way they sell will-writing and professional executor services to consumers.

However, any further move towards the regulation of will-writing is currently on hold: a spokeswoman for the Ministry of Justice has said that the Government will await the outcome of the LSB investigation before taking any action.

This pseudo-tax known as the, Art Resale Levy, (or droit de suite in French) means that sellers will have to pay royalties on works by European artists who have died in the past 70 years, including Pablo Picasso, Henri Matisse and Francis Bacon. Cash is payable to the artist’s heirs each time a work is resold.

The tax already exists in mainland Europe and is due in Britain from January, applying to all works priced above (EURO)1,000 (£900) and on a sliding scale of 0.25 per cent to 4 per cent. 

There will be intellectual property implications of this, if the directive is brought into force in UK.

On the other hand, so the argument goes, why shouldn’t the family reap some of the benefits (in particular when success is mostly posthumous)?

For a more detailed review of the tax’s history and the UK’s derogation until 2012, I suggest an article in the FT, which can be found here (although please note that the FT is subscription only), and for the view of the art lobbyists (LAPADA), click here: LAPADA, and follow the links at the bottom of the page.

There will be scope for planning to avoid this levy if the UK is not be able to extend the derogation beyond 2012, and if you are interested in discussing this with a solicitor, please call 01923 20 20 20 and ask for the Wealth Management Department.

Mr Gaines-Cooper wants to treated as a UK non-resident and claims that HMRC failed to interpret the IR20 guidance correctly (now replaced by HMRC6.) However, in February 2010, the Court of Appeal rejected Mr Gaines-Cooper’s application for a judicial review of HMRC’s decision that he was resident and ordinarily resident in the UK rather than in the Seychelles. Full details are here.

The hearing is expected to last two days.

UPDATE (13 July 2011): It has been reported that the judgment will be handed down in approximately 12 weeks’ time.

Last month, the French government proposed to introduce a new tax on non-residents who own a holiday home in France that they do not rent out as a long-term let. The government estimated that the total revenue from this tax would have been EURO 176 million a year, with the money used to fund proposed reform of the French wealth tax system.

However, after facing opposition from a group of senators representing French nationals living abroad, the government confirmed it was abandoning the proposal, as the new tax would have been incomprehensible to overseas French nationals.

The key points are as follows:

•  The charitable legacy must be left to a body that is a charity for UK tax purposes, that is, a charity or other organisation in the UK, European Union Member State, Iceland or Norway that would be a charity under the law of England and Wales OR settled in trust to be used for charitable purposes only OR left to a Community Amateur Sports Club.
• Beneficiaries of a will or intestacy may execute a deed of variation to make a charitable legacy.
• A beneficiary inheriting joint property by survivorship may divert all or part of that property to charity and the estate will benefit from the IHT incentive. 
• Where a discretionary trust is set up by will and there are charitable beneficiaries, a distribution within 2 years of death to charity will be treated by HMRC as though it was a legacy made under the will.  

Points for Consultation

The Consultation Paper of 10 June 2011 “A new incentive for charitable legacies – A lower rate of inheritance tax when leaving 10% of an estate to charity” seeks views on a number of detailed issues including:

• Whether, for administrative convenience, only charitable gifts of easily realised assets such as cash, land, buildings or quoted shares should count towards the 10% limit.
• How assets that are charged to inheritance tax on the deceased’s death in addition to his or her own ‘free estate’ should be treated. These assets would include those that the deceased had given away with a reservation of benefit, particular life interests in settled property and any jointly-owned property that has passed outside of the deceased’s will or intestacy.

Comments are invited by 31 August 2011.

Below is an example given by HMRC of an estate which is valued at £850,000 and where the available nil-rate band is £325,000. The minimum charitable legacy to pass the 10% test would be calculated as follows:

Planning points

If you would like to include a charitable legacy in your will or to discuss the impact of the changes, please contact a member of our Wealth Management team on 01923 20 20 20.

This law has not yet been passed, but it seems likely to take effect from 1 January 2012.  It will apply to non-French residents, including some French citizens who have emigrated, although those renting out their properties and professional expatriates seem to exempt.

This tax will be applied at a rate of 20% to the cadastral value of the home. This is typically lower than market value, but the current cadastral values date back to the 1970s and are due to be increased in the near future.

There is some question as to the compatibility of this new tax with EU law, but subject to a challenge on this basis, we understand that this is something of which all UK based owners of French property will need to take heed.

After this date there will be a significant reduction in the annual investment allowance for qualifying expenditure which potentially could result in lost 100% up-front tax relief.

Claiming on the balance not covered by AIA at rates applicable to the general, special or short-life asset pools spreads the claim for tax relief over much longer periods.

Here is an example I’ve seen from accountants Smith & Williamson:

Using an example of a 30 June 2012 year end, the table below shows the effect of delaying expenditure until after 1 April 2012 or 6 April 2012 on the maximum amount of AIA claimable for that year.

Businesses need to consider more than just the availability of allowances when incurring expenditure, however this change in allowances is significant enough to justify very careful consideration of when to incur qualifying expenditure.

For more information, please email me on shimon.shaw@mablaw.com.

The changes affect Employer Annual Returns and starter and leaver PAYE forms.  From April, employers with fewer than 50 employees must now send starter and leaver forms – P45s, P46s and similar pension information – online to HMRC.  

Further, all employers who send their Employer Annual Return to HMRC after the 19 May filing deadline will now receive a late-filing penalty.  Previously, an extra-statutory concession gave employers extra time before HMRC charged a penalty, but this has been withdrawn.

From this year, employers will be liable to a penalty if they file their annual return on paper. Last year, no penalty was charged for employers with five or fewer employees. But these transitional arrangements have now ended. HMRC will also be issuing PAYE penalties this spring for the first time in two key areas:

• Penalty notices will be sent out in April to employers with 50 or more employees who have not filed starter and leaver forms online to HMRC. The first penalties will apply for the three month period to 5 April 2011, with further penalties being issued on a quarterly basis.
• From May this year, HMRC will start sending out penalties for late payment of PAYE. Employers will be liable for a penalty if they haven’t made PAYE payments on time, and in full, from April 2010. The amount of the penalty will depend on the amounts paid late and the total number of late payments made. Penalties will be charged after the tax year-end.

Employers must file an Employer Annual Return (EAR) – a P14 for each employee and a P35 summary sheet – by 19 May. They must do this online (with some very limited exceptions, for example, people who employ their own carer and those with religious objections). If an employer has not previously sent their return online, they must act now by registering for HMRC’s online service. 

HMRC has published a list of common errors to avoid on its website.

There are a number of ways that employers can send employee starter and leaver details online. They can use commercial software, HMRC’s free Online Return and Forms – PAYE Service, HMRC’s Basic PAYE Tools (formerly Employer CD-ROM) or an agent can do it for them online. To avoid unnecessary administration work for employers and HMRC, employers should not send paper starter and leaver forms to HMRC where they have already filed online or intend to do so.

Or unless you are me.

So on to the news:

1.         DV3 v HMRC

This was the tax planning case I’ve referred to in previous posts.  The taxpayer appealed against HMRC’s assessment that stamp duty land tax (SDLT) planning (involving the sale to a purchaser followed by a subsale into a partnership) failed.

The decision was highly technical and involved an in-depth analysis of the SDLT subsale rules. 

The taxpayer won in the tribunal.  It seems likely that HMRC will, however, appeal.

2.         Shariah compliant SDLT scheme blocked

In the budget, HMRC have changed the rules for subsales and alternative property finance relief to block an increasingly popular method for avoiding SDLT.

3.         5% rate

The rate of SDLT for residential property purchases OVER £1m with an effective date on or after 6 April will increase to 5%.  Following on from the above 2 points, this is likely to lead to an increase in SDLT planning.

4.         Bulk purchases

As from Royal Assent of the Finance Act 2011 a new relief will be introduced for purchases for multiple residential properties.  The terms are not yet finalised, but in essence where you are purchasing several plots or properties you would take the total price and divide by the number of properties to find the mean.  The rate of tax will be based on the mean price.

Since opportunities for abuse abound, there will probably be some restrictions imposed.

5.         First time buyers

HMRC will review how this relief is working and report on it in the Autumn.

If any of these changes affect you or if you would like to contact someone about stamp duty, please drop me a line.

For example, as is fairly well known by now, there was a deathly silence on the subject of Winter Fuel Payments.  In fact the payments stayed the same, however the extra top ups which had previously been given were stopped.  So whilst there was no cut per se, anyone receiving these payments will have felt the difference.

So, on to the news.  Panorama tonight will reveal how research it has carried out into salaries and inflation mean that the average worker takes home £1,088 less than two years ago – a reduction of 5%.  For the full story, click here.

And then there’s the rise in national insurance by 1% again, which failed to feature heavily.  That’s going to affect a lot more people than knocking a penny off petrol, and in a far more significant way!

Tax planning can help in some cases, especially if you are a business owner or earn enough to put you into the 50% tax band.  If you would like to discuss your options, please contact our wealth management team on 01923 20 20 20.

But here is some good news.

Stamp duty on property (SDLT) has to be one of the most hated taxes out there.  It is a tax on mobility and, like VAT, is imposed on cash which in most cases has already been taxed.  Not only that but it makes moving house a lot more expensive.  Hence the spread of stamp duty planning in recent years, even to transactions which in the past would never have been considered for this.

So a ray of sunshine in the doom and gloom is welcome.

An SDLT case was heard in the Tax Chamber of the First-tier Tribunal towards the end of last year.  Deputy Judge Charles Hellier heard arguments over a scheme used to avoid SDLT on the £65.1m purchase of a property in London’s Regent Street in October 2006.  The SDLT scheme in question involved a subsale of the property to a partnership resulting in no SDLT being payable.

This was the first occasion a court or tribunal has considered an SDLT scheme and its importance lies in the attitude of tribunal to the technical arguments SDLT schemes rely on.

And the winner was…..the taxpayer.

The judgement has not yet been published but watch this space as this article will be followed by an examination of the tribunal’s approach and a consideration of how this will impact on future schemes.

It is very likely that fashionistas go through the same when column inches get devoted to which shoes go with which handbags and doctors cry into their corn flakes when they read about medicine fads.  However, since I know nothing about fashion (as my wife will confirm) or health (as my Mum will confirm) it just flows over me. 

The story goes that if you purchase property in an overseas company, you can avoid stamp duty.  My comments:

1. For UK resident tax payers buying their homes, they lose out on the capital gains tax relief on the sale of their homes.  They will sell shares and pay tax on the gains.  28% CGT is a lot more bothersome than 4 or 5% stamp tax.

2. It saves stamp duty on the sale but that’s not going to help the company which is purchasing now.

3. This has the potential to make administration a nightmare and there are annual directors fees etc.

4. There can be income tax charges on the use of the property if a market rent is not paid.

5. Most UK based future purchasers won’t want to buy a company so you’ve restricted your ability to market the property in the future.  And if purchasers buy the property from the company - you’ve just wasted time and a shed load of money.

6. If you are borrowing to purchase the property, you’ll have a much harder time and the cost of finance will increase.

etc…..

So who should consider buying a property in a overseas company?

First point – don’t do this without speaking to your tax adviser (or me!).  Second this is mainly of use to wealthy overseas investors.  There is inheritance tax planning which can really benefit from a structure involving an overseas property.  But that’s not stamp tax planning.

What’s funny about the article is that tucked away at the end is a comment from a partner in KPMG with which I mostly agree ” for anyone [other than a overeas investor], it’s a ticking time-bomb”.   If they had spoken to him before writing the article, perhaps they wouldn’t have bothered.

Why? Because taxpayers are not properly planning, managing and reviewing their personal finances in a tax-efficient way, resulting in them paying more tax than they need to. The south-east of England was found to be the most tax-inefficient, with tax payers squandering a whopping £1.8bn in overpayments of capital gains tax and by not taking advantage of tax reliefs and other entitlements.

According to the research, a staggering 88 per cent of people stated that they have done nothing in the past 12 months to reduce their tax liabilities. (Last year it was 86 per cent, proving that this is not a one-off statistic.) Of that 88 per cent, 45 per cent of respondents erroneously believe that they are being as tax-efficient as possible; 28 per cent of respondents admitted that they do not know how to become more tax-efficient.

There are all sorts of ways to reduce your tax liabilities, such as using your partner’s income tax rate, making use of pension tax relief, maximising your (and your children’s) capital gains tax allowance, structuring your investment portfolios, inheritance tax planning, and writing a will. The list is endless.

At Matthew Arnold & Baldwin, we can help you and your business in all matters related to developing tax structures, mitigating tax liabilities, and the preparation of wills. If you would like to discuss your options, please contact me at iain.donaldson@mablaw.com (tax and trusts), or James Odds at james.odds@mablaw.com (tax), or Emma Alford at emma.alford@mablaw.com (wills).

How difficult is it to gift a share? This was the question asked by Lady Justice Arden in her judgment in Shah v Shah [2010] EWCA Civ 140. The case considered whether or not a letter accompanied by an incomplete stock transfer form manifested an intention to make a gift or an intention to create a trust.

Until a transfer of shares is registered in the statutory books of a company, the transferor remains the legal owner of the shares. Therefore, a gift of the legal interest in a share is not complete until registration has taken place. However, a transferor can transfer the beneficial interest in a share prior to the transfer of the legal interest by declaring that they are holding that share on trust for the transferee.

Facts of the case

After a family feud and successive litigation two brothers (D and R) executed and delivered identical letters and stock transfer forms each purporting to dispose of 4,000 shares in a company in favour of their brother (M). However, the stock transfer forms were left undated and the consideration (being the money or monies worth provided in exchange for the transfer) was left blank. The company subsequently completed the stock transfer forms and registered the shares in M’s name. The case went back to court because D challenged his disposition to M on the basis that the letter he signed constituted a gift and as the gift was not completely constituted, it was of no effect.

The letter stated:

“This letter is to confirm that out of my shareholding of current 12,500.00 in the above company I am as from today holding 4,000 shares in the above company for you subject to you being responsible for all tax consequences and liabilities [arising] from this declaration and letter.”

Decision

The Court considered the words used in the letter in the context of all of the relevant facts rather than the alleged subjective intentions of D. On that basis, the Court found that there was no question that the words demonstrated an intention to dispose of the shares immediately by the use of the words “as from today”. However, the effect of the words “as from today” in law was to dispose of the beneficial interest only at that point as legal title did not pass until registration. The use of words “I am holding” as opposed to “I am assigning” or “I am giving” and the concept that D held the shares for M until he lost that status on registration could only be given effect in law by the imposition of a trust. On that basis the court found that D must be taken in law to have intended a trust and not a gift. The Court went on to find that D had intended that registration of the transfer would take place in due course otherwise why would he have also executed and delivered a signed but undated stock transfer form?

Comment

Returning to the original question in her judgment, Lady Justice Arden concluded that it is not difficult to make a gift of shares but it may take time to complete the gift by registration of the shares in the name of the transferee. If you want to make an immediate gift, one way of doing so is to declare a trust.

The study (the Truth about Bonuses) by the University’s School of Economics involved subjects either being paid a bonus or fined depending on their performance in certain areas.  The results showed that the joint earnings of employers and workers were almost 19 per cent higher when fines were handed out than when bonuses were paid. However, while employers were better off when fines were introduced, workers earned less than in the scenario without fines.

Alternatives to bonuses

So what does work?  I suspect it depends on who you ask.

Employees (especially those in the, ahem, financial services sector) will probably say cash is king, and when it comes to it, a bonus will do nicely, thank you very much.  Now where is the Ferrari showroom?

Employers will often take a longer term approach to incentives and will often prefer employee share schemes and options.  These have the benefit of being tax efficient and of promoting long term commitment to the business since employees will benefit from future growth.

I’ve yet to come across anyone offering employee fines as an incentive and, if my boss is reading this, I am not sure that it would go down well in practice.

If you would like to discuss employee incentives for your business please contact me (for a discussion of tax), or Emma Cameron in our corporate team.

Skilled workers from overseas who do not take home big salaries will have to satisfy strict criteria.  Fewer than 21,000 a year will be let in because of a new cap on the number of people coming to the UK for employment.

Applicants will need a “certificate of sponsorship” from a UK employer and they will be given points according to the rarity of their skills, for example scientists will be ranked highly. Employers filling a vacancy that attracts a salary of £150,000 or more will not be subject to the limit on the number of certificates that may be allocated.

For more information on this change, the press release can be seen here.

Looking at the bigger picture, the Government is sending out mixed messages.  On one hand, this will be welcomed by business leaders who are concerned about a brain drain from the UK.  This is clearly intended to encourage skilled immigration and to support both the knowledge based economy as well as the City.  On the other hand, HM Treasury have raised tax to 50% on the highest earners with hints from the Chancellor that the beneficial tax regime in the UK for resident non-domiciliaries (who will be the ones most interested in the above announcement) may be restricted. In an increasingly mobile global society, there are simply too many other choices and, put simply, tax is a large part of the equation when choosing where to live.

The Government needs to have a clear policy to increase the skill set (and therefore the wealth) of the UK through targeted and consistent measures.  It is not enough to simply fiddle with immigration quotas.

I don’t act for any sports leagues.  That’s not to say I wouldn’t be interested, if someone from the FA, for example, reads this.

However, I know that stories about sports are always of interest (hence the fact that the slightly esoteric question of proper taxation of image rights is now familiar territory to a large part of the general public), so here we go.  Here we go.  Here we go.  Sorry.

HMRC have issued a notice clarifying their view of the VAT treatment of commercially operated sports leagues in response to enquiries from a number of organisations that run football leagues.

Background

Typically, a sports league provider will do most or all of the following:

• organise a league
• allocate fixtures to teams in the league 
• provide pitches for teams to play on (some league providers own pitches, others rent them from other parties) 
• provide referees
• determine results
• keep and publish scores and league tables
• award trophies to winning teams 

Payments for such supplies are collected in a variety of ways. For example, the sports league provider may charge a one off ‘admin fee’ to teams plus a ‘match fee’ for each game that is played.

Taxation

Some leagues have put it to HMRC that the essential nature of their supplies is one of pitch hire.  This relies on a series of VAT cases which rule that when you have provide one main service and there are added services ancillary to this, the VAT treatment is that of the main supply.  Following this, the leagues would not have to charge VAT.

Unsurprisingly, HMRC disagree with this and I suspect that most fans would too.  The supplies made by sports league providers consist of a bundle of elements, which are integral to each other.  HMRC consider that it cannot be said that there is one principal element to which all others are ancillary.

So what is that main supply?  In HMRC’s view, the overarching supply is of participation in a sports league, not a supply of land, and therefore subject to VAT at 20%.

Conclusion

It seems that by raising this as a question, the leagues have forced HMRC to go public with their views.  Rather an own goal, I’d say.  Sorry, again.

It’s common sense really – don’t act until you are in full possession of all the facts.  The following is a tale of woe that shows what can go wrong if you don’t.

As was reported in accountingWeb, a Sunderland based accountant is facing prison time after being found guilty of tipping off a client about a police investigation.  The accountant received a police order demanding him to hand over some accounts.  Rather than reading the order to determine what this was about, the accountant read the first couple of paragraphs and then immediately telephoned his client to let him know that he was being investigated.

The court held that this was in breach of the Proceeds of Crime Act with the possibility that he will now face a custodial sentence.

This takes me back to school and an early experience with exams.  As my teacher told me then – don’t do anything until you’ve read the full question!  Sometimes the early lessons we learn are the most important.

Tipping off is a serious issue and is one faced by many professionals, in particular those dealing with Money laundering compliance.  It is imperative to understand your obligations under these rules, and as cases like this make all too clear:  ignorance is no defence.

Although the Bill’s proposals on this issue were generally supported by respondents to the consultation and the Justice Committee, the Government has decided to defer any changes, pending the outcome of the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill, a Private Member’s Bill that is currently before Parliament and which proposes the majority of the reforms on the law of succession contained in the Civil Law Reform Bill.

The proposals in the Civil Law Reform Bill sought to amend the law of succession so that where a person was disqualified or refused an inheritance, his or her heirs were not disinherited. The Bill intended to reform the law governing the distribution of estates of deceased persons in three areas; that is whereby:

1. An inheritance is disclaimed (i.e. rejected);

2. An inheritance is forfeited (i.e. where a person has killed another person and is disqualified by the forfeiture rule from inheriting property from his or her victim); and

3. A person loses (but not forfeits or disclaims) a benefit on intestacy by dying under the age of eighteen and without having married or formed a civil partnership.

Under current common law, any children of a disqualified heir are also disqualified from inheriting. The Law Commission, after conducting its own consultation on the issue in 2003, deemed this situation to be unfair and its proposals for change were incorporated into the Civil Law Reform Bill. To back its call for change, the Law Commission cited the Court of Appeal’s 2001 ruling in Re DWS deceased, in which two grandparents, who were murdered by their only son, died intestate (i.e. without leaving a valid will) and the Court reluctantly held that the law did not allow their grandson (the murderer’s son) to inherit the property whilst the son (the murderer) was still alive.

The Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill seeks to change the law by allowing the deceased’s property to be distributed as if the potential heir had died, rather than been disqualified through forfeiture. It also addresses the current situation whereby the children of a minor, who is entitled to inherit an interest in the estate of an intestate person but who dies unmarried and without entering a civil partnership before the age of eighteen, are unable to inherit their parent’s interest in that estate.

Although the Bill is supported by the Ministry of Justice, Private Member’s Bills are not usually allocated enough parliamentary time to be debated and, thus, become law. Consequently, even with the Ministry of Justice’s backing, there is no guarantee that the Bill will become law.

HMRC will target 50,000 SME’s a year looking at business records going back over the last 6 years.  There is a legal obligation to keep adequate records, and failure to do so can give rise to fines of up to £3,000.  This is a change of practice from HMRC who historically have rarely imposed these penalties.

Overtly raising taxes at the moment is political death.  So HM Treasury have to look elsewhere for money.  This seems to be a case of rummaging down the back of the sofa for those extra bits of revenue.  However, for most SMEs – £3,000 is not small change.  Businesses need to ensure that they keep all relevant documentation in addition to their accounts, such as till rolls, cheque stubs, paying-in-slips, cash receipts, etc.

If you want to speak to a solicitor or accountant about your obligations please contact us.

We also offer a business healthcheck  service, which includes a review of your business documentation and compliance.  If you are interested in this please contact our corporate team.

Dom Buckley IRS Ltd v HMRC (2011)

The taxpayer did not account for VAT on the sale of a Ford rally car to a customer in Spain.  HMRC issued an assessment charging VAT on the sale, on the basis that this was a supply to a person in their personal capacity.  The taxpayer appealed, on the basis that the customer was a taxable person (i.e. in business).  On a review of the facts, the tribunal agreed with the taxpayer.

This case highlights the need for care in identifying who your customer is.  This is relevant especially when you are making supplies overseas since the identity of the purchaser will affect the rate of tax you charge.  The easiest way of determining whether or not someone is taxable is whether they are registered for VAT within the EU.  If you want to be sure then it is possible to check VAT registration here.

It is possible to be a taxable person without being registered for VAT so it is important to know the rules if you are involved in making overseas supplies.  The VAT rules on supplies within the EU changed last year and it is important to keep on top of changes to these developments.

On a separate (but connected) point, it seems that VAT fraud is on the rise, and that suppliers who are not registered for VAT are charging VAT e.g. on building works.  Essentially, they are upping the price by 20% and pocketing this as profit.  This is fraud against you and the Revenue.  Customers in doubt are advised to ask for details of VAT registration and either call HMRC or use the above link to check that it is real.

The Legal Services Board, the independent body responsible for overseeing the regulation of lawyers in England and Wales, had asked the LSCP to conduct this investigation, with a view to considering the possible regulation of the industry.

Will-writing in England and Wales is not currently a reserved legal activity under the Legal Services Act 2007, meaning that the writing of wills is not restricted to regulated lawyers, who are independently regulated by the Solicitors Regulation Authority and the Bar Standards Board respectively. Consequently, some consumers are unwittingly using unregulated private will-writing companies, whose will-writers may have had little training or have little expertise in putting together what is one of the most important legal documents a person will ever create. Concern about unregulated will-writers has grown so much that the BBC’s Panorama programme recently investigated the issue (click here.) Interestingly, across the border, will-writing in Scotland is expected to become a regulated activity very shortly, after the Legal Services (Scotland) Act 2010 received Royal Assent in November 2010.

The LSCP has received a lot of responses to its consultation, which closed on 15 December 2010, with both consumer bodies and the legal profession strongly supporting the regulation of will-writing. Full details of the responses are here.

The Law Society, which backs regulation, said that although will-writers should not have to have the same qualifications as solicitors, there should be a regulatory regime which has “minimum training requirements; compulsory insurance cover; a compulsory compensation fund; a code of conduct; a complaints management system; and a robust disciplinary mechanism.”

The Trades Union Congress, Remember a Charity, Citizens Advice and the National Consumer Federation, amongst many others, all called on will-writing to become a reserved activity. However, the Office of Fair Trading has said that it is yet to be convinced that regulation is required.

The LSCP will now report its findings back to the Legal Services Board, who will decide whether regulation should be introduced to the will-writing industry.

Matthew Arnold & Baldwin LLP is experienced in all matters relating to the preparation of wills. We offer quality tax, trusts and inheritance advice to ensure that your personal affairs are arranged as efficiently as possible, and that your assets are passed on to your heirs in the way you want them to be. If you would like to discuss writing a will, please contact me at iain.donaldson@mablaw.com, or my colleague Emma Alford at emma.alford@mablaw.com.

The departure of so many non-doms has confirmed widely-held fears that the £30,000 levy would drive them overseas. Although the levy may not be the only reason for the exodus, it has certainly played its part.

So, what is the cost to the UK? Well, it is possible that the loss to the UK economy will be greater than the actual income gained from the levy. Non-doms not only bring wealth and spending power to the UK, but also expertise and entrepreneurism, which in turn creates jobs.

Back in June last year, I wrote that the incoming Coalition Government had pledged to review the taxation of non-doms during its five-year term in office. According to HM Treasury’s ’Structural Reform Plan: Monthly Implementation Update’ for December 2010, this review is still “ongoing” and an announcement on the issue will be made in due course.

The exemption had meant that businesses in England with an empty property with a rateable value below £18,000 did not have to pay business rates. The government intends to lower the threshold from £18,000 to £2,600. Also, the government does not intend to re-introduce a 50% relief, and small firms will not be able to claim Small Business Rate Relief on the property.

The FSB have written to local government minister, Bob Neill, to protest that the changes could potentially put some small firms out of business. If the cuts cannot be avoided, the FSB claims, it would be better to provide per cent relief or at least to allow a business to claim Small Business Rate Relief on their empty property.

The press release can be viewed here.

The Law Commission is examining the status and enforceability of marital property agreements made between spouses or civil partners (or those couples considering getting married or forming a civil partnership.) Currently, such agreements are not enforceable in the event of divorce or the dissolution of a civil partnership, though the courts may take them into account in determining what ancillary relief is appropriate. The high-profile Supreme Court ruling in Radmacher v Grantino recently brought this whole issue to the fore– click here and here for full details.

The consultation paper proposes a number of options for reforming the law in this area, and is seeking views on whether (1) couples should be able to enter into a legally binding agreement not to seek ancillary relief in the event of divorce or dissolution of their civil partnership, and (2) whether such agreements should encompass all of a couple’s property, or contain only terms relating to pre-acquired, gifted or inherited property.

The Law Commission has provisionally proposed that if nuptial agreements are introduced into law (and thus enforceable), (1) the parties to the agreement should have taken legal advice, (2) the agreement should be in writing, (3) the party seeking to enforce the agreement must have made full and frank disclosure of their financial situation, (4) the agreement should provide for the needs of any children of the family, and (5) the agreement should not leave one party reliant on state benefits.

The consultation closes on 11 April 2011, though the Law Commission is not expected to make any recommendations for reform until 2012.

If you would like some legal advice on marital property agreements, please contact Amanda Melton at amanda.melton@mablaw.com, or Jeremy Abraham at jeremy.abraham@mablaw.com.

Pre-nuptial and post-nuptial agreements have rarely been out of the news since the Supreme Court ruling in Radmacher v Granatino was handed down on 20 October 2010. In this case, the Supreme Court held that the Court of Appeal had been right to conclude that it was fair to hold Mr Granatino to the terms of his pre-nuptial agreement with the heiress Ms Radmacher, meaning he received only £1m instead of £5m in the divorce settlement. Click here and here for full details of the case.

The ruling was significant in that it represented a major step towards pre-nuptial agreements becoming legally enforceable under English law, which would bring England and Wales in line with many other EU countries. The general consensus amongst family practitioners is that the Law Commission will propose legislative reform to make pre-nuptial (and post-nuptial) agreements legally binding for the first time.

However, there is some way to go. Once the consultation has concluded, the Law Commission is not expected to publish its recommendations until sometime in 2012.

In the meantime, if you would like some legal advice on pre-nuptial or post-nuptial agreements, please contact Amanda Melton at amanda.melton@mablaw.com, or Jeremy Abraham at jeremy.abraham@mablaw.com.

Office parties

Staff Christmas parties are less common than they used to be. But maybe the fact that you can reclaim the VAT charged on the cost of providing hospitality for staff will provide some cheer and a little incentive to treat the staff to a night out.

Be careful not to invite spouses and partners though, since entertaining non-staff members won’t benefit from the same treatment! A small charge to non-staff members attending the function may allow for the VAT element of the cost to be recovered.

Xmas gifts

The VAT rules on business gifts allow input tax to be reclaimed (and no output tax liability will be incurred) if the total cost of gifts given to the same person in any twelve-month period is less than £50, and they do not form part of a series of gifts.

A recent case considered samples of free albums and singles given away by EMI to a number of different employees within their organisation. The question was whether the ‘small gift’ allowance of £50 related to the employer as ‘one person’ or each member of staff. The good news is that each employee was deemed to be a ‘person’, so the £50 condition was easily met.

Conclusion

So the message to all employers out there – be kind to your staff and shower them with food (but not their families!) and gifts (but not more than £50 worth!) and you will all be able to have a happier new year!

The lower rate of corporation tax has a threshold of £300,000.  If you have two associated companies the threshold for each is reduced to £150,000.  If you have three, then the threshold reduces to £100,000 for each.  The same will apply to the upper threshold (£1.5m).

The case below shows how this rule can apply in quite unexpected ways.

Executive Benefit Services (UK) Limited v HMRC [2010] UKFTT 550 (TC).

The taxpayer company and its associated company had completely distinct businesses.  However, a shareholder of one was found to control both companies since he had become a loan creditor of the associated company for purely commercial reasons.  Essentially by virtue of lending the other company money (combines with a minority shareholding) he became entitled to the “greater part” of the company’s assets “available for distribution to participators”.

The First-tier Tribunal held that the associated company test applied irrespective of any tax avoidance motive in structuring a company’s financing and shareholdings. 

Conclusion

This is a good reminder of some of the mischief which can be caused by the associated companies rules. 

The facts here are clear that there was no tax avoidance motive, in fact the shareholder in question was clearly trying to help out his son (who was the owner of the second company).  The loan was interest-free with no fixed repayment date and with no other entitlements, such as voting control or a share of a distribution of profits in the event of a winding-up.  Despite all this, the tribunal held that the companies were associated and reduced the rate of tax for both companies accordingly.

This case is going to be of particular interest in these times when (as happened here) lenders are holding back the flow of credit and children are turning to the bank of Mum and Dad.  When Mum and Dad are themselves in business, they need to look very carefully at the position of both companies.

For more information please contact James Odds or Shimon Shaw on 01923 20 20 20.

The personal tax details for 2011/12 have now been released.  Some of the key points:

• The personal tax allowance will rise by £1000 to £7,475.
• The higher allowance for those aged 65-74 and aged 75 or more will both go up by £450 to £9,940 and £10,090 – though only if your income is less than £24,000 (up from £22,900 last year).  Over this the higher allowance tapers back down to the standard.
• Higher rate tax will begin to be paid on annual incomes above £42,475 which is £1,400 less than the limit this year (£43,875). Therefore higher rate tax payers will not gain from the £1k rise in the personal tax allowance.
• The 50% rate remains at £150,000 and the income at which the personal allowance begins to be clawed back remains at £100,000.  Anyone with an income between £100,000 and of £114,950 – when personal allowance disappears altogether – will be paying an effective marginal rate of tax of 60% on some of their income.

Tax returns for last year will be due in January.  If you need assitance in preparing your return, please contact James Odds on 01923 20 20 20.

The question to ask yourself as you quaff your bananas, blackberries, strawberries and boysenberries is: “Am I having a drink or am I eating food?”. 

Innocent think that they are food, HMRC think that they are drinks.

The tribunal found that the smoothies had ‘the consistency of a moderately thin soup’ but were intended ‘to be drunk from the bottle’.   What it came down to (as is so often the case for VAT) was the intention of the customer – since they were intended and sold as drinks, the products were within the definition of ‘beverages’.

Once again the VAT man leads the cutting edge of food technology and science.

I’m posting it since it’s amusing and with no reflection of whether or not I think it is accurate.  For one thing, if I have a hard time imagining the pub suggesting that they drop the price of beer by 20%, I don’t have words to describe my feelings as to the impossibility of the Govt dropping income tax by any amount at any time before they start campaigning for the next election!

Shimon

……………………………………..

Suppose that once a week, ten men go out for beer and the bill for all ten comes to £100.
If they paid their bill the way we pay our taxes, it would go something like this..

The first four men (the poorest) would pay nothing.
The fifth would pay £1.
The sixth would pay £3.
The seventh would pay £7.
The eighth would pay £12.
The ninth would pay £18.
And the tenth man (the richest) would pay £59.

So, that’s what they decided to do.

The ten men drank in the bar every week and seemed quite happy with the arrangement until, one day, the owner caused them a little problem.   “Since you are all such good customers,” he said, “I’m going to reduce the cost of your weekly beer by £20.”  Drinks for the ten men would now cost just £80.

The group still wanted to pay their bill the way we pay our taxes.   So the first four men were unaffected. They would still drink for free but what about the other six men? The paying customers?  How could they divide the £20 windfall so that everyone would get his fair share?  They realized that £20 divided by six is £3.33 but if they subtracted that from everybody’s share then not only would the first four men still be drinking for free but the fifth and sixth man would each end up being paid to drink his beer.

So, the bar owner suggested that it would be fairer to reduce each man’s bill by a higher percentage.  They decided to follow the principle of the tax system they had been using and he proceeded to work out the amounts he suggested that each should now pay.

And so, the fifth man, like the first four, now paid nothing (a100% saving).
The sixth man now paid £2 instead of £3 (a 33% saving).
The seventh man now paid £5 instead of £7 (a 28% saving).
The eighth man now paid £9 instead of £12 (a 25% saving).
The ninth man now paid £14 instead of £18 (a 22% saving).
And the tenth man now paid £49 instead of £59 (a 16% saving).
Each of the last six was better off than before with the first four continuing to drink for free.

But, once outside the bar, the men began to compare their savings. “I only got £1 out of the £20 saving,” declared the sixth man. He pointed to the tenth man, “but he got £10!”

“Yeah, that’s right,” exclaimed the fifth man. “I only saved a £1 too. It’s unfair that he got ten times more benefit than me!”

“That’s true!” shouted the seventh man. “Why should he get £10 back, when I only got £2? The wealthy get all the breaks!”

“Wait a minute,” yelled the first four men in unison, “we didn’t get anything at all. This new tax system exploits the poor!”  The nine men surrounded the tenth and beat him up.

The next week the tenth man didn’t show up for drinks, so the nine sat down and had their beers without him. But when it came time to pay the bill, they discovered something important – they didn’t have enough money between all of them to pay for even half of the bill!

And that, boys and girls, journalists and government ministers, is how our tax system works.

The people who already pay the highest taxes will naturally get the most benefit from a tax reduction.  Tax them too much, attack them for being wealthy and they just might not show up anymore.

In fact, they might start drinking overseas, where the atmosphere is somewhat friendlier.

David R. Kamerschen, Ph.D.
Professor of Economics.

As well as summarising the responses to the discussion paper, the Government also included details of its future plans, which, most importantly, will see reductions made to the annual and lifetime pension allowances.

The Government has confirmed, amongst other things, the following:

1. Annual allowances: From April 2011, the annual allowance will be cut from £255,000 to £50,000;

2. Lifetime allowances: From April 2012, the lifetime allowance will be reduced from £1.8m to £1.5m;

3. Defined-benefit schemes: A flat-rate factor of 16 will be used to value further accruals in defined-benefit schemes;

4. Carry-forward mechanism: Individuals will be allowed to carry forward unused annual allowance from the previous three years;

5. Revaluing accrued benefits: An allowance for active members’ accrued benefits to be revalued will be incorporated into the regime; however, deferred members will be excluded from the regime. Any negative accruals will continue to be treated as zero.

6. Exemptions: Individuals who receive a serious ill-health lump sum in place of their benefits will be exempt. However, there will be no exemption for those who retire early on redundancy, or for those who have registered for enhanced protection. Also, the current exemption from the annual allowance test for individuals in their final year before drawing benefits will be abolished; and

7. Tax relief: Tax relief on pension saving will not be capped at 40 per cent. A taxpayer who is liable to pay income tax at the 50 per cent rate will be able to receive relief on pension saving at this rate (to the extent his income is taxed at 50 per cent.)

These changes replace the previous Labour government’s plans to restrict pensions tax relief for high-income individuals. The key measures will be implemented in the Finance Bill 2011, which will come into effect on 6 April 2011. Another consultation paper, which will seek further feedback from interested parties on some of the issues mentioned above, will be published later this month.  

In the meantime, if you have any concerns about how the Government’s plans will affect you, please contact me at iain.donaldson@mablaw.com.

The Prenuptial Agreement was prepared in Germany, the Wife’s country of origin. It provided that there would be no provision for each other in the event of a subsequent divorce. The prime reasons for entering into the Agreement were that Ms Radmacher’s father wanted her to do so (the suggestion being that if she did not have a Prenuptial Agreement, he may disinherit her from family money), the fact that she was set to become wealthier following their marriage, and, according to her own position, that she wanted to be married for love rather than for her money.

The parties married in 1998, having entered into the Prenuptial Agreement and subsequently separated in 2006, by which time they were the parents of two children.

During their marriage, at his peak, the Husband was earning as much as £330,000 per annum but had subsequently given this up, returning to study. Needless to say, he sought, on divorce proceedings, to extricate himself from the Agreement, saying that the document had been prepared in German, without a translation; that he had not had independent legal advice; that there had been no disclosure of Ms Radmacher’s financial circumstances and, perhaps most importantly, that the document provided for no provision even in the case of severe financial hardship.

At the initial hearing, the Husband was awarded £5.56m to provide him with a home, capitalised maintenance for the remainder of his life and other smaller sums to meet his overall requirements. The reasoning given for this decision was that because the German Agreement was in existence, the Court had to look at the lower end of what they might otherwise order, in divorce proceedings exhibiting similar circumstances.

Ms Radmacher appealed this decision and the Court of Appeal agreed. They highlighted the problems of different approaches within Europe and, in particular, the fact that had the parties divorced in Germany or France, it is fair to say that Mr Granatino would have received nothing because of the existence of the standard property regimes which exist there. In England and Wales, however, where matters are dealt with under the common law system, the courts of course still have a very wide discretion.

It is pertinent to note that only a short while ago, namely 1995, the Court’s view was that contracts such as Prenuptial Agreements would be of limited significance.  By 2008, the Courts were saying that in cases of short marriage and with no children, a Prenuptial Agreement was of significant importance.  We are now in 2010 and the Supreme Court’s decision today seemingly says that the existence of a Prenuptial Agreement is able to override most other factors.

The earlier Court of Appeal decision took the view that whilst it was correct to discount the entitlement awarded to the Husband to the lower end of what would otherwise be the likely Order, this discount should be attributed solely to the period during which the children continued to be dependent. Essentially, therefore, rather than providing a home for Mr Granatino, together with maintenance for the reminder of his life, they provided that he should receive a property in which he could reside during the children’s minority but which would, at the end of that minority, pass back to Ms Radmacher. In addition, the capitalised maintenance element was still awarded but limited to a period during which the children would remain dependent.

Historically, the courts have been reluctant to change the law in this area, feeling that it was a matter for legislation (currently under review by the Law Commission). However, the courts have for some time now been mentioning changing morals and the requirement of the law to keep up-to-date with modern life. Gradually, they have taken a less “paternalistic” approach and obviously there is also the need to bring England and Wales into line with the rest of the world, particularly Europe. In this case, the Court has taken the matter way beyond any previous attempts to achieve this. In this particular instance, there were many factors which could have been used by the Court to find in favour of Mr Granatino, not least the fact that he had not received independent legal advice, did not know the extent of the Wife’s assets and does not appear to have even had the document translated before he signed the same. What is even more important is the fact that the Court has essentially held, that the existence of the Prenuptial Agreement, is such that it is no longer fatal to its existence even if there is no provision for a parent with children. This case essentially provides for Mr Granatino to receive what would ordinarily be made available to the parent of an unmarried couple, for example, under a Schedule 1 claim, representing the only option available to unmarried parents seeking provision for the children of that relationship.

The decision will highlight concerns, not least because the instant case is perhaps not the most usual. Mr Granatino was not so weak as to be vulnerable. In most cases, where Prenuptial Agreements are entered into, in fact the weaker party would be a Wife with limited earning capacity and perhaps one or two children, with the vast majority of the wealth, or indeed all of the wealth, being attributed to her Husband. In those circumstances, where a Wife, as the weaker party, enters into such an Agreement, is it realistic or indeed fair for that to be upheld by the Court? Her circumstances are of course considerably at variance with those of Mr Granatino, who essentially was at one stage an extremely successful individual in his own right.

It will, in those circumstances, be interesting to read the full Judgment and analyse the Court’s reasoning behind the decision in this matter.

“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

It went on to say, somewhat less pithily,

“Of the three strands identified in White v White and Miller v Miller, it is the first two, needs and compensation, which can most readily render it unfair to hold the parties to an ante-nuptial agreement. The parties are unlikely to have intended that their ante-nuptial agreement should result, in the event of the marriage breaking up, in one partner being left in a predicament of real need, while the other enjoys a sufficiency or more, and such a result is likely to render it unfair to hold the parties to their agreement. Equally if the devotion of one partner to looking after the family and the home has left the other free to accumulate wealth, it is likely to be unfair to hold the parties to an agreement that entitles the latter to retain all that he or she has earned.”

Why disappointed? Well 3 reasons really (and none of them related to the innocence of the views expressed in the last quoted paragraph), but first some facts.

The case before the Supreme Court was Mr Granatino’s appeal from the Court of Appeal’s decision that reduced Mrs Justice Baron’s original award in his favour. To recap, for those of you with regular lives to lead (i.e. without benefit of Ms Radmacher’s reputed £100 million), before Baron J., Mr Granatino, a French national, sought a divorce award from Ms Radmacher, a German national, having entered into a German pre-nuptial agreement prior to their marriage in London where they subsequently lived and brought up two children.  Mr Granatino picked up £5,560,000, the rationale being that would provide him with an annual income of £100,000 for life, a home in London where his children could visit him and a car to carry them around in. He was also to receive child maintenance amounting to £35,000 a year for each of the two children whilst they were in full-time education. Oh, and when was not plying his new found trade as a biotechnologist, he would be able to stay in a house in Germany with his children that Mrs Granatino was to buy and make available to him during the children’s education. The Court of Appeal thought that was too much and the Supreme Court today considers the Court of Appeal had the right approach.

Why disappointed?

1. Under the pre-nuptial agreement neither spouse was to receive a penny from the other on divorce.  Even on the Court of Appeal’s much less generous analysis (as endorsed by the Supreme Court),  Mr Granatino gets something, albeit in his capacity as a father rather than a spouse.  That doesn’t sound like upholding a no-claims pre-nuptial agreement to me, but rather imposing a large discount on what Mr Granatino would otherwise have received on divorce, a process more akin to what’s done with damages when contributory negligence is present.

2. In Baroness Hale’s perceptive judgment (she also notes expressly the applicability to Civil Partnership) Mr Granatino has been despatched in pretty much the same way as he would have been had he and Mrs Radmacher parented children outside of marriage, an  inconsistency  that gives no recognition of  the special status conferred by matrimony.

3. The reservation that “needs” or “compensation” might cut across the desireability of upholding a pre-nuptial agreement will mean that for most of us, the situation remains as before. That’s to say the Court will tell us whether, on any given facts, an agreement is to be upheld or not, hardly the expected outcome of the bold statement of paragraph 75!

As it happens, I have a fourth and much more personal niggle with the judgment. The highest court in the land doesn’t seem to apply to itself the exhortation that routinely applies to Court users that matters legal be dealt with in plain English . I noted “quid pro quo”, “tout court”, “a fortiori”, ”per se” and “prima facie” (the last two in quoted extracts but no modern English equivalent given) “obiter” but most of all “ante” rather than “pre” nuptial.  Lets hope that the French and German educational systems enabled the parties to discern the relevant meanings.

This continues the trend in recent years of grandparents picking up increasingly more of the burden, both financially and in terms of time.

Unless your kids are really demanding, you probably won’t need to consult your solicitor to get you out of babysitting for the little darlings.  However, if you are a grandparent providing financial support (for example, school fees) there are a number of steps you can take to reduce the cost of helping.

For example, many grandparents put money or investments on trust for their grandchildren.  Any growth in the fund gives rise to tax on the grandchildren (which in most cases will mean that there is effectively no tax).  This may also be effective inheritance tax planning.

If you would like to discuss tax planning to provide for your grandchildren, please contact me or any member of the Wealth Management team on 01923 20 20 20.

If you miss the deadline it could be costly, as paper returns filed after this date could mean a £100 penalty.

An alternative to paper-filing is to file your return online, which benefits from a January deadline.

If you would like assistance in preparing and filing your tax returns, please contact James Odds on 01923 202020 or james.odds@mablaw.com.

The Treasury have just now issused the following press release, which we will consider in more detail and comment on in due course.

Financial Secretary to the Treasury announces changes to restricting pensions tax relief

Financial Secretary to the Treasury, Mark Hoban MP, announced today that the annual allowance for tax-privileged pension saving will be reduced from £255,000 to £50,000, and the lifetime allowance will be reduced from £1.8 million to £1.5 million. This will replace the complex proposal legislated for by the last Government in the Finance Act 2010.

This measure will raise £4 billion per annum in steady state and will help reduce the record Budget deficit that this Government inherited. It will be targeted at those who make the most significant pension savings. An annual allowance of £50,000 will affect 100,000 pension savers 80% of those will have incomes over £100,000.

The Government is committed to protecting individuals on low and moderate incomes as far as possible. To protect individuals who exceed the annual allowance due to one-off “spikes” in accrual, the Government will allow individuals to offset this against unused allowance from previous years.

We will also consult on options enabling people to meet tax charges out of their pensions in November.

In order to protect the public finances it is necessary to introduce the reduced annual allowance from April 2011. The Government plans to introduce the reduction in the lifetime allowance from April 2012.

Mark Hoban said:

We have abandoned the previous Government’s complex proposals and developed a solution that will help to tackle the deficit but not hit those on low and moderate incomes. We have taken a tough but fair decision.

The Coalition Government believes that our system is fair, will preserve incentives to save and – compared to the last Government’s approach – will help UK businesses to attract and retain talent.

This investigation into will-writing follows recently-publicised concerns over the quality of wills and poor sales practices in the industry, which culminated in a Panorama investigation, aired in August 2010.

The Panel is investigating whether the will-writing industry should be regulated. Currently, will-writing is not a “reserved legal activity” under the Legal Services Act 2007; this means that the writing of wills is not restricted to solicitors and barristers, who are regulated by the Solicitors Regulation Authority (SRA) and the Bar Standards Board respectively. Unregulated private will-writing companies now claim to write about 10 per cent of all new wills, but consumers are often unaware that these companies are unregulated and that their will-writers can have little or no legal training. A survey published by the Society of Trust and Estate Practitioners (STEP) in August 2010 provided evidence of such companies charging ‘hidden’ fees that were not outlined in the stated price for a will, of companies going out of business and ‘disappearing’ with their clients’ wills, and general incompetence that resulted in consumers receiving additional tax bills.

The investigation also follows the Scottish Parliament’s decision in June 2010 to propose amendments to the Legal Services (Scotland) Bill, meaning that non-lawyer will-writers in Scotland are expected to become subject to the same regulation as their legally qualified counterparts from 2011. There is now growing support amongst lawyers and consumers for England and Wales to follow suit.  

The deadline for submissions to the investigation is 15 December 2010.

This consultation, which was due to end on 22 September 2010, has now been extended until 22 October 2010 to allow further time for interested parties to comment on its proposals. Further details of the consultation are available here.

The government announced earlier this year that it was acquiring the Swiss bank account details of up to 6,600 wealthy Britons suspected of evading tax.

If you have received one of these letters and would like advice as to your next steps, please contact your normal MAB solicitor or ask for the Wealth Management team on 01923 202020.