Tax Break

John Fisher, international tax consultant

Archive for the tag “British Tax”

Eurotunnel vision

He was too busy womanizing to care.

After arriving in London en route to America, an acquaintance’s grandfather decided to kill time at Speakers’ Corner in Hyde Park. It was 1906, and he, similar to my own grandparents, had fled a pogrom in Russia. Despite having his heart set on New York, he changed his mind when he heard an itinerant speaker slagging off King Edward VII from his soap box. A country that tolerated open criticism of its monarch was a country in which to seek asylum.

Britain has a long and marvelous self-deprecatory tradition of not taking itself, or anyone else, too seriously. Ideologies were for other mad-cap countries to self-destruct with (even the post-war surge in socialism was quickly diluted to something more essentially British). So, when Charles de Gaulle said ‘Non!’ to Britain’s entry into the European Economic Community in 1967, despite Britain having been instrumental in saving his country from speaking German, he knew what he was doing. De Gaulle and his German allies were flying high, out to create something idyllic, and they didn’t need the English bringing them back to earth.

Britain’s next prime minister not taking himself too seriously

Since finally joining Europe in 1973, the British have periodically forced an emergency landing (or, at least, lowered the altitude of such lunacies as the single-currency Euro project), but now that Brexit is in the air, they have also made the mistake of splitting into two ideological camps. Amidst all their own dogfighting, they are missing a lot of the nonsense of Europe.

A recent example should serve the point.

British tax law has an eminently sensible provision permitting the deferral of capital gains tax on the transfer of assets within a UK group. Nothing left the ‘business’ so why prevent the transfer or penalize it with a tax charge? Only when the asset is actually sold outside the group would the tax crystallize taking into account the amount deferred.

Her Majesty’s Revenue and Customs (for, despite General de Gaulle, members of the Union are still responsible for their own fiscal management) held that an asset transfer by a UK company to its Dutch parent company triggered tax, since it was outside a UK group. The assessee said ‘Non!’ and the matter was taken to a First Tier Tribunal (Britain’s lowest tax court). Despite its own evident embarrassment, the court was hit by turbulence, and sided with the assessee.

Why?

One of the fundamentals of the European project is ‘freedom of establishment’. Article 49 of the Consolidated version of the treaty on the functioning of the European Union (yawn!) states:

Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.

Bottom line – the court felt it had to permit the transfer of the asset to the Dutch parent free of tax, knowing full well that there was no system in place to ensure that, when the Dutch company sold the asset outside the group, Britain would receive its share of the booty. While a form of installment payment was considered appropriate – it didn’t seem to meet European legal requirements,  and was ignored.

Their relationship was never going to work

There is no logic in any of this. With pragmatic Britain’s exit from the EU, de Gaulle’s legacy may finally reach its logical conclusion. Sacre bleu!

Dead Wrong

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April fool!

It’s bad enough that, thanks to the controversy surrounding Brexit, the average Briton no longer lives with peace of mind. From April 1 they will no longer die with peace of mind.

A headline-grabbing exaggeration perhaps, but probate fees for opening a file to deal with a deceased person’s estate are due to jump from £155 to, in some cases, £6000 from next week. While the government insists it is a fee – in order to avoid a legal requirement to include it in the annual Finance Act – the Office for Budget Responsibility announced on March 15 that it would be included, alongside Inheritance Tax, as a tax for statistical purposes.

Her Majesty’s Revenue and Customs  has been administering the controversial – and widely hated – Inheritance Tax since its inception in 1986.

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The Twilight Zone?

As in other countries imposing an Estate Tax or Inheritance Tax (there are many that have either cancelled or never adopted either) UK Inheritance Tax is  controversial for the wrong reasons. It is argued that it represents a double tax on already-taxed income, while at the same time not bringing in much revenue (other than from the good dead people of Guildford, the recently crowned inheritance tax capital of Britain). The first argument cries out for a different spin, and the second (it represents around 1% of tax-take) may anyway cease to be valid in the years ahead.

As taxes go, an Inheritance Tax makes a lot more sense than an Estate Tax.

An Estate Tax imposes tax on the estate of a dead person – beneficiaries receive what is due to them out of the post-tax value of the estate. There is, unquestionably, an element of double tax (although the likes of Thomas Jefferson and liberal philosopher John Stuart Mill gave the finger to that), and the fact that estate tax planning is entirely within the bailiwick of the donor (subsequently the ‘dead person’) such tax can often be minimized.

An Inheritance Tax imposes tax on the beneficiaries. In that case, the double tax argument is weakened – the dead person passes on their estate free of tax (but without a tax deduction for the transfer as they, rather than society, decide who is to receive it) and the beneficiaries – similar to the winner of a lottery – pay taxes on their windfall. As regards the level of collections, imposing tax on the beneficiaries also puts something of a spanner in the works of aggressive tax planning during the donor’s lifetime.

There are two types of inheritance tax  – accessions and inclusion. An accessions tax system provides the beneficiary with their lifetime tax-free inheritance threshold, and hits them with the prescribed rate of inheritance tax on  the balance of what they receive from any number of donors, while an inclusion tax  charges beneficiaries according to their marginal income tax rates  (plus an inheritance surcharge). While inheritance tax is always fairer than estate tax, the inclusion tax system is the fairest of them all – as it clearly works in favour of beneficiaries of smaller amounts and/or lower income.

Furthermore, in all cases (Estate Tax and both types of Inheritance Tax), the increased exchange of information between tax authorities mean it is increasingly difficult to hide assets ‘abroad’ – which should also substantially serve to increase the revenue collection.

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‘More tea, guv?’

Britain claims to have an Inheritance Tax. The problem is that – to all intents and purposes – no, it doesn’t. It has an Estate Tax. The government website (Gov.UK sounds like an initiative of the Kray Twins) talks to the donor. Other than in specific circumstances the tax is claimed from the estate. The tax-free threshold is given to the estate – and even in the case where specific gifts are given outside the will in the 7 years prior to death, they get first benefit of the tax-free amount. And the tax rate is fixed.

So, why is it called an Inheritance Tax?  We shouldn’t complain. At least it is called a ‘tax’ as opposed to the Probate Fee, which is a tax but the government can’t afford to call it that. And what about Her Majesty’s Revenue and Customs?  Isn’t it a tax authority?

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At least they still call it a ‘tax’ return

Perhaps we shouldn’t ask too many difficult questions of a country with a tax year-end of April 5th.

Keep Calm and Carry On

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About as intellectual as it got

The British have always been a supremely pragmatic people. It was thanks to a fickle king that they knocked religious hegemony on the head early on, and thanks to another misguided monarch that they got their revolution out of the way before the Rousseaus, Marxes and Engels of the world could fill the vacuum with an ideology. Indeed, it was the utterly pragmatic empiricist John Locke who tidied up the mess in the latter half of the seventeenth century.

It is, therefore, no surprise that – despite the cataclysmic events in Parliament surrounding Brexit – the British Government has been beavering away, preparing for the morning after (which, because Brexit is planned for the night of Friday March 29th, will be effectively Monday April Fools Day).

The big news from Davos last week was that Britain and Israel have confirmed ‘in principle’ a Free Trade Agreement similar to that enjoyed between the EU and Israel. With £10 billion of trade, that is eminently sensible for both parties. What received less coverage was the signing  a few days earlier of a protocol to the double taxation agreement between the two countries that dates back to 1962.

Protocols amend treaties. Hearing the words ‘protocol’, ‘tax’, ‘treaty’, ‘Israel’, ‘UK ” (not strictly a word) in the same sentence came as no surprise to my tax-attuned ear. What with all the OECD changes in respect of Base Earnings and Profit Shifting (BEPS) and the automatic exchange of information, protocols are the name of the day. The media reports (that all appeared to stem from the same press release) gave a few details of new provisions and mentioned the obvious. It was only when I downloaded and read the document (who, for heaven’s sake, ruins the party by reading primary sources these days?), that I realized the enormity of what had happened. Perfidious Albion, God bless her!

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What an interesting job

Israel and the UK initialed a new treaty to replace the 1962 one way back in 2009. I remember it well, because I was informally consulted just before initialling, and found a couple of boo-boos. In order for a treaty to take effect, each country needs to take it through whatever processes its domestic law requires – but the stages are identical: initialling, signing, ratifying. In the UK, following the signing,  an Order in Council is issued. That is a process where a Government representative rattles off the wording of a load of boring regulations while the Queen listens (yeh, sure!) and, in the case of a tax treaty or protocol, it goes to a delegated  legislation committee, where it is considered and then brought before Parliament. It can then be ratified.

The 2009 treaty hit a total snafu after initialling. The original 1962 treaty bore the wording: ‘the term “Israel” means the territory in which the Government of Israel
levy (sic) taxation’, and  ‘the terms “resident of the United Kingdom” and “resident of Israel” mean respectively any person who is resident in the United Kingdom for the
purposes of United Kingdom tax and any person who is resident in Israel for
the purposes of Israel tax’. It was widely understood that somebody in London (I hazard a guess, from the Foreign Office) decided that Israeli residents of Judea and Samaria aka the West Bank aka the Occupied Territories should not be included. That was never going to pass muster with  the Israeli Government, and both sides got back in their trenches for the next decade.

But, times change, and these days it might be cheekily argued that go-it-alone Britain needs Israel more than Israel needs Britain (although Britain is still a very-nice-to-have). And that treaty is seriously prehistoric. Meanwhile, as Professor Emeritus of Empire Building, Britain had to watch its step.

Then came the Eureka! moment. It was time to sign protocols with treaty partners. A month after  the UK’s High Commissioner in Cyprus signed with the Cypriots, a British government representative signed with the Israelis. But, there was a subtle difference. The Cypriot protocol ran to a familiar 3 pages; the Israeli protocol ran to an eye-boggling 19. The British and Israelis had effectively shoehorned the long-dormant new treaty into the Protocol, simply passing over the naughty bits.

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I wonder if Mel is one of George’s

The signatory for the British Government was one Mel Stride, Paymaster-General – a name and title which, together with the plot, could have come straight out of a John Le Carre novel.

All that now remains is for the Queen to cock a deaf’un, and for Parliament to be pre-occupied with Brexit. (Israel also needs to ratify).

As regards the new provisions, they can be easily found popping up all over the internet in the same form as they were initially announced.  What seems to have escaped the journalists’ attention is the long-awaited exemption on UK pensions received by Israeli residents (as opposed to the highly-specific exemption from withholding tax on interest and dividends to Israeli pension funds, which was included). New and potential expats, benefiting from a ten year tax exemption on foreign sourced income in Israel,  should be talking to their advisors.

Yes, Minister

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Keep it simple…

Looking confused next to the overhead locker of my assigned Business Class seat on a British Airways flight from Heathrow to New York last year, I was approached by a helpful flight attendant (if that is what stewardesses are called these days) who offered assistance. Pointing to the little picture indicating which mini-compartment was 12A, and which 12B, I told her I was unfortunately pictorially dyslexic. She looked momentarily sympathetic before bursting out laughing: ‘What do you mean, pictorially dyslexic? There is no such thing!’

For all I know, she was right.

The fact is that our brains have become so used to hard-edged information being pureed into easily digestible mush, that many of us find it hard coping with anything more taxing than a Facebook intelligence test. (I was recently informed I had an IQ of over 160 because I knew a photograph was of Adolf Hitler, rather than the other choices of Donald Trump and Michael Bloomberg. Surely everyone knows that neither Trump nor Bloomberg has a  moustache.)

If you think I am being unfair, take literature. In this day and age, if you want to be published, you have to keep sentences short, and multiple adjectives locked up. So, you would think that chucking the following paragraph – which doubles up as a sentence – at the reader on the first page of a 500 page novel might have condemned the author to obscurity:

‘In consideration of the day and hour of my birth, it was declared by the nurse, and by some sage women in the neighbourhood who had taken a lively interest in me several months before there was any possibility of our becoming personally acquainted, first, that I was destined to be unlucky in life; and secondly, that I was privileged to see ghosts and spirits; both these gifts inevitably attaching, as they believed, to all unlucky infants of either gender, born towards the small hours on a Friday night.’

Thankfully, the book saw the light of day  in 1850, not 2017, and  David Copperfield became one of Charles Dickens’s most-loved novels.

Until fairly recently, I believed that one area of intellectual pursuit that had escaped the brain surgeon’s knife was taxation. Taxation is complicated, and advisors have kept it complicated. How often have we watched with satisfaction as our clients’ eyes have glazed over, knowing at the end of a tortuous meeting that they will just tell us ‘to deal with it’?

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…or not.

 

Then – Shock! Horror! – in 2010 the British Treasury came up with the Office of Tax Simplification. 450 recommendations later – including such game changers as simplification of the corporation tax computation and out-of-date procedures still requiring paper confirmation for stamp duty transactions (themselves an anachronism) – the OTS published its first annual report. Apart from a ‘first annual report’ issued seven years after inception being a leading candidate for the accolade ‘the triumph of hope over experience’, the wording itself left hope for tax professionals:

‘The OTS is in a unique position to highlight issues, stimulate debate and act as a catalyst for positive change, being strongly connected within government, having exceptionally wide access to a range of deep expertise from outside government and speaking with an independent voice.’

Charles Dickens couldn’t have written a better paragraph (doubling up as a sentence) himself. In fact, it almost looks like the Office of Tax Simplification could come to rival Little Dorrit’s Circumlocution Office.

The spirit of Bleak House’s Jarndyce and Jarndyce lives on. Mercifully.

 

His Kingdom For A Hearse

With England burying one of its monarchs today, 530 years late, I thought it appropriate to re-post this item from March 25,  2012.

Greatest Britain

What makes Britain great? There is, of course, no single answer (and the French would suggest there is no question), but the nation that gave the world its principal parliamentary system, its principal international language and (sorry, Yanks) its principal sport must have something in its national DNA that sets it apart from all the rest.

It seems to me that a major factor is Britain’s innate conservatism as described and promoted by the 18th century philosopher and politician, Edmund Burke. British society doesn’t change – it evolves. And evolution produces strength, step-by-step. There have, of course, been potholes in the road over the years – most notably the Civil War and Protectorate of Oliver Cromwell in the 17th century – but, let’s face it, after a few years of that miserable puritan they brought back Charles II whose head had fortunately not been cut off along with his father’s. When things went haywire again a quarter of a century later, the King (the last James we are likely to see) was booted across the water and none other than John Locke, the very man who challenged the divine right of kings in his “Two Treatises of Government”, was charged with schlepping the new king and queen from Holland.

There was a marvelous example of British evolution a few months back that, typically, went almost unnoticed. One Friday morning an announcement was made in Perth (the Aussie one) – which is just about as far as you can get from Buckingham Palace without jumping on a spaceship – that henceforth the first born of the monarch (etc) will be the heir to the throne irrespective of gender. In a stroke, countless centuries of common law and statute were set aside and Britain and its Commonwealth moved on (I am aware that political correctness dictates that I should be talking about the United Kingdom – but, frankly, I am a bit ambivalent towards Northern Ireland). And what about Decimalization 40 years ago? After watching sterling evolve over centuries into the quaint system of pounds, shillings (20 in a pound) and pence (12 pence in a shilling) – instead of changing the currency they just dropped the shillings and recast the pence. To maintain an element of originality in the change, instead of using a normal date (like January 1 used for introduction of the Euro) they went for the totally obscure February 15 1971 – which could, at least, have been identified as the middle of the month – in any month other than February.

Which brings me to the central point. I have a hunch (but not an ounce of evidence) that we may be heading for another of those evolutionary changes in the next few years.

Last week, in the month of March as from time immemorial, Chancellor of the Exchequer George Osborne presented the Government’s budget for the coming fiscal year. The Government’s fiscal year starts April 1 but, for the purpose of income tax the year starts on April 6. Why April 6? The story is simply wonderful.

New Years Day used to be recognised in Britain as March 25. That date represents Lady Day when, according to Christian tradition, the Archangel Gabriel informed the Virgin Mary she was going to conceive (count nine months and you get to Christmas Day). The Treasury understandably collected its taxes based on the year commencing March 25. When, in 1582, Pope Gregory XIII instituted his calendar replacing the old Julian version European countries gradually adopted it. The Protestant English, however, gave him the two finger salute and hung on until 1752 when, in addition to adopting the Gregorian calendar New Year’s Day was moved to January 1. The tax year was left untouched but for one small point. Adoption of the Gregorian calendar required an eleven day leap forward in the date (there were riots reported at the time of people claiming they had been robbed of part of their lives). Not prepared to give up on tax revenue, the Treasury moved the collection period forward by the said eleven days – meaning that the new tax year would start on April 5. As part of the calendar change leap years are generally skipped at the turn of the century – in 1800 another day was added bringing the start to April 6; in 1900, the Treasury was magnanimous and left the date alone; 2000 was a leap year, so we will never know what Gordon Brown might have done.

It is hard to see how this system can go on forever. I recently had to do some foreign tax credit calculations for a client invested in real estate in the UK – I felt like getting out an abacus (and hitting someone over the head with it). I would assume that one of these years when the economy is doing well and a government is in the middle of its term there will be a quiet announcement from somewhere like the Isle of Skye (if it is still part of Britain) that the next tax year will start on April 1 – but then everyone will probably assume it’s an April Fools joke. Happy New Year.

The Balls In Her Court?

1966 all over again?

1966 all over again?

What with the World Cup and Wimbledon, the last few weeks have been jam-packed with balls – an appropriate time, perhaps,  for the British Labour Party to present its ideas for the future of tax policy should it win the next General Election. But more of that later.

I grew up thinking the Queen was so prim and proper that if any man were to use fruity language in her imperial presence (even her colourful husband), he would be hoisted on a gibbet outside the Tower of London.

Then, in 1992, the BBC  aired a documentary, the title of which they had filched from an old series about someone else entirely: “Elizabeth R”. In contrast to the earlier, professional production which starred Shakespearean superstar Glenda Jackson, this latest offering was Reality TV in its infancy, a camera crew following the matriarch of a rather dysfunctional family for an entire year as she happened to run into just about everybody who had the power to destroy the world (Celebrity Big Mother).

Among the documentary’s many fascinating scenes was one dealing with the preparations for a State Dinner at Windsor Castle in honour of the, then, President of Poland:

The Queen is observed  in an anteroom with her family waiting to escort the President and his wife to dinner. Passing the time of day with her daughter, Princess Anne, she informs her that she has been showing Lech Walesa (the former Gdansk shipyard labourer) around the Castle. She cheekily mentions that,   amazed by the size of everything,  every time he had entered a room he had uttered the only two words he knew in English, “Quite interesting words”. Anne stops her in mid-flight: “Was it ‘Good Heavens’?”. “Bolder than that,” comes the reply. The Queen produces a wry smile, implying that her sense of humour may be slightly more ribald than one might have imagined.

Michael Foot always had a sense of occasion

Michael Foot always had a sense of occasion

Well, if Labour wins the election next year, one hopes that – as she approaches 90 – Her Majesty is still game for a laugh. For the party that once tried unsuccessfully to put a “Foot”  in No. 10 Downing Street is now likely to put “Balls” in No. 11.

Shadow Chancellor, Ed Balls, gave an interesting talk at the London Business School last week.  Surprisingly for a Labour Economics man, he  informed his audience that a Labour Government would provide tax breaks for businesses, especially small ones.

Before announcing the positive news, however,  being Labour Balls had to dampen the good cheer of the satanic captains of industry crowding the auditorium – so he announced that a Milliband Government would reverse the current Government’s  corporate tax rate reductions. The rate would, however, be kept at the lowest in the G7, that is less than Canada’s 26.5% (Karl Marx, bless Mother Russia for annexing the Crimea and getting kicked out of the G8). Against this there would be substantial Business Rate  (local property tax) reductions, which would serve as a significant incentive to small and growing businesses. There would also be provisions to encourage the long-term holding of shares.

The most controversial announcement, however, was that Labour is considering an “Allowance for Corporate Equity”.  The concept is not new and has been tried in Croatia (failed), Italy (failed),  Brazil (as always, different), Belgium (EU Commission trying to make it fail) and Australia (gave up trying).

The basic concept of ACE is that debt financing and equity financing are equated. In an ideal world this would lead to less volatile companies – a case in hand being Manchester United, a once great football team, that was saddled with tax-deductible debt by its unlamented late owner, Malcolm Glazer. By providing a notional deduction against a company’s capital (and assuming interest and dividends to shareholders are treated similarly), there is effectively no tax on a risk-free investment – tax only applying to “super-profits”.

The potential advantages of such a system, in addition to canceling the debt/equity advantage, are that:  there is tax neutrality regarding investment; it cancels out the effect of differing depreciation rates (the higher the depreciation rate, the lower the capital on which the allowance is calculated); and inflation can be compensated for through changes in the notional rate of deduction.

The downsides are that: in a global economy, the headline corporate tax rate is highly relevant in attracting foreign investment; and there can be issues with foreign tax credits. Then there is the small question of how to calculate the risk free rate  that achieves neutrality.

Seen in this light, it appears far more sensible to follow the approach taken by several countries in recent years to restrict interest deductions to a fixed percentage of EBITDA (earnings before interest, taxes, depreciation and amortization), thus widening the tax base and permitting  reductions in headline rates. But at least the Labour Party, under its soft-left leader, is not threatening the raining down of fire and brimstone  on British Industry.

Power couple?

Power couple?

Of course, should Labour fail in its bid to form the next Government in 2015, the likeable young  Milliband will almost certainly be sent packing. While Mr Balls was a credible candidate in the last leadership contest in 2010, it is thought that, this time, he will support the candidacy of his wife, who is shadow Home Secretary (Interior Minister). Should Mrs Balls make it to No 10 in 2020, the Queen will doubtless be thankful that Yvette Cooper had the good sense to keep her maiden name when she married. If, on other hand, Ms Cooper makes her husband Chancellor of the Exchequer, they will be neighbours. What would that do to the, by then,  ancient Queen’s constitution?

 

 

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