Practitioners dealing with international tax matters will be interested
to see the new International Manual, which is due to be published on
the Inland Revenue's internet site in the course of this month. The
new Manual includes brand new practical guidance for Revenue staff on
transfer pricing and brings together updated guidance for Revenue staff
on international issues, including double taxation relief and controlled
The Finance Act 2003 sets out the framework for stamp duty land tax, which will be introduced on 1 December 2003 to replace the existing stamp duty regime on UK land and buildings for all transactions completed on or after that date. Stamp duty in its current form will therefore cease to apply to transfers of other property for contracts entered into on or after 1 December 2003.
Reform of the stamp duty regime paves the way for the introduction of e-conveyancing systems which will allow purchases of property to be effected or registered electronically, making the acquisition of property faster and more efficient.
The vast majority of individuals buying or renting residential property will see no immediate changes under the new regime, though there will be some administrative changes of which practitioners need to be aware. In most residential purchase cases liability to stamp duty land tax should be reported and duty paid, as now, within 30 days of completion.
The reform builds on measures introduced in Finance Act 2002 to tackle avoidance of stamp duty on certain property transactions, and modernises the compliance regime for stamp duty by bringing it into line with other taxes and incorporating appropriate enforcement powers. There will be new processes for reporting the details of land transactions and for paying any tax due.
Broadly the scope of stamp duty land tax will cover all transactions involving land in the UK. There are a number of exclusions, including mortgages and similar security interests, licences to use or occupy land and transactions for no chargeable consideration. The charge will include transfers of freehold property and assignments and assignations of leases, grants of leases (including in Scotland, exchange of missives of let), and options and rights of pre-emption in respect of land transactions.
There will also be a charge on contracts for land transactions which are 'substantially performed' either by the payment of rent, or by the payment of substantially the whole (normally at least 90%) of the purchase price or because the contracting purchaser takes possession.
The new regime will expand a range of anti-avoidance powers to discourage the transfer of properties into companies (sometimes called special purpose vehicles) in certain circumstances. A number of changes to the group and acquisition relief clawback provisions will be introduced with immediate effect, including extending the period in which these clawbacks can be withdrawn to three years.
It will also see the abolition of stamp duty on transactions involving property other than land, shares and interests in partnerships. This de-regulation will take many transactions out of stamp duty altogether, including transfers of book debts and other receivables.
The existing stamp duty regime will continue to apply to stocks, marketable securities and bearer instruments, and transfers of land into or out of partnerships by partners or former partners, and acquisitions of an interest in a partnership. It may also apply to transactions completed and leases granted on or after 1 December 2003 where those conveyances and leases fulfil contracts or agreements entered into on or before Royal Assent of the Finance Act 2003 on 10 July 2003.
Stamp duty land tax will also introduce the concept of a 'liable person' for the purposes of the tax. In most cases this will be the purchaser or lessee - whoever is acquiring the benefit of the property.
Consultation will continue on certain key aspects of the regime. These include the transfer of land into and out of a partnership by a partner, and the transfer of interests in partnerships that hold UK land, the approach to large developments, sale and leaseback deals and securitisation of land. Any changes arising from the consultation may be enacted either on implementation of the new regime or in Finance Act 2004.
When the new system is implemented for transactions completed on or after 1 December 2003, practitioners will no longer need to submit documents, on behalf of purchasers, to the Inland Revenue for stamping. Instead they will have to notify liability to tax using the new land transaction return. Payment should be sent at the same time as the return to the Inland Revenue processing centre in Netherton. Any Inland Revenue stamp office will be able to forward returns and payments to Netherton on behalf of individuals, but customers will benefit from a quicker service if they make their returns direct to Netherton. Provided information and payment are submitted in full, the Inland Revenue will issue a stamp duty land tax certificate which purchasers or their advisers will need to submit to land registries in order to register ownership of land or to record a deed, as appropriate. The certificate replaces the current stamped impressions, which are made onto documents.
In broad terms, land transaction returns should be submitted to the Inland Revenue for transactions that cover any transfer of a freehold, assignment or assignation of a lease for consideration, whether or not giving rise to a charge, and any transaction for which a relief is being claimed. They should also be submitted for the grant of a lease for a contractual term of 7 years or more or which gives rise to a charge, and any other transaction giving rise to a charge.
In line with other taxes administered by the Inland Revenue, stamp duty land tax will be administered under a 'process now, check later' system. From the filing date of the return, there will be an 'enquiry window' (the period during which the Inland Revenue can open an enquiry or an individual can request that an enquiry be opened into a transaction). This will be a period of nine months for all transactions. Purchasers must keep suitable records for six years from the effective date.
For freehold transfers and assignments or assignations of leases, and for the premium element of new leases, the rates and thresholds will be the same as at present, except that for non-residential property the nil-rate limit is increased from £60,000 to £150,000.
There will be a new structure for charging the rental element on the grant of a new lease. The charge will be based on the 'net present value' of the rentals payable under the lease. We shall give more details of the charge on the rental element of new leases shortly.
Under the new regime, there will be cases where no tax is due, for instance where a relief can be claimed or where the transaction is below the nil-rate band threshold. The threshold will be £60,000 for residential property and £150,000 in other cases.
In these cases purchasers may still have to make a return to the Inland Revenue or, in certain cases, provide a self-certificate to the land registries (which includes any register maintained by the Keeper of Registers of Scotland and, in Northern Ireland, the Land Register of Northern Ireland and the Registry of Deeds).
Reliefs that have been carried forward from the existing regime include transfers between group companies, transfers arising from company reconstructions and certain purchases and leases by registered social landlords . In addition, there will also be new reliefs for the modernised regime. These include acquisitions of dwellings by house-building companies in part-exchange for the sale of a new home, acquisition of dwellings by relocation companies, and acquisitions by local authorities or public bodies under compulsory purchase orders or under the terms of planning arrangements.
Since 10 April 2003, stamp duty has not been due on certain non-residential property transactions in designated disadvantaged areas. This builds on the existing exemption from stamp duty on all property in disadvantaged areas where the consideration does not exceed £150,000. A full list of qualifying areas is available on the Inland Revenue website at www.inlandrevenue.gov.uk/so. Customers who do not have access to the Internet can also receive advice on this and other stamp duty issues from the Stamp Taxes Enquiry Line on 0845 6030135.
Special rules will apply to certain transactions. They include transfers between companies and connected parties, collective enfranchisement by leaseholders and crofting community right to buy schemes, alternative property financing arrangements for individuals (which can be used, for instance, to provide "Islamic mortgages"). Also included will be acquisitions of dwellings under shared ownership schemes, and right to buy and rent to mortgage transactions.
The modernised regime will bring a modern, comprehensive compliance framework to stamp duty for the first time. An enquiry regime will be implemented which will mirror provisions already in place for other taxes administered by the Inland Revenue such as Income Tax and Corporation Tax. The main enquiry regime will be underpinned by a risk assessment process. A random enquiry programme will be implemented to enable us to measure the effectiveness of our compliance approach.
We are also taking forward work related to the practicalities of the enquiry regime, including a Code of Practice covering how those enquiries are to be handled and an appeals process.
We will also develop a compliance regime around exempt instrument transactions and stamp duty certificates.
Further details are available in the Inland Revenue's Finance Bill 2003 press notice (REV 55) and Budget day press notice, PN05: Modernising the Taxation of Property. Both of these can be found on the Stamp Taxes' website at www.inlandrevenue.gov.uk/so/news.htm. Customers who do not have access to the Internet can also call the Stamp Taxes Enquiry Line on 0845 6030135. For more information on the further consultation we are undertaking on certain policy measures, contact Des Newman, Stamp Taxes Policy team at email@example.com.
A draft of the Stamp Duty Land Tax manual which will only be available electronically was published on the Internet at www.inlandrevenue.gov.uk/so/ during the week commencing 22 September 2003. We would welcome constructive feedback. Please forward your responses to Viv Scrimshire by e mail or post to the following address:
3rd Floor New Wing
The first issues in a series of Information Bulletins have been produced and mailed to around 10,000 firms of solicitors who have had contact with our Stamp Offices in the past. These bulletins will continue to be produced in the run up to the commencement of the changes. The aim of the bulletins is to keep customers informed of developments on an ongoing basis. They will be produced every 4 to 6 weeks.
We have also recently begun to publish SDLT Customer Newsletters. The newsletters will provide more detailed information relating to specific areas of the changes and how they will affect our customers. These will also be published every 4 to 6 weeks.
Both of these publications are available from the eight Stamp Offices across
This article is intended to give wider circulation to a revision in our web-site guidance on the effects of the Court of Appeal decision in Mansworth v Jelley, which we made on 8 August 2003. The change, which may benefit a number of taxpayers, relates to the view we originally expressed in March 2003 on claims to increase capital losses for self assessment tax years. This view was part of the general guidance we issued at that time to assist taxpayers following publication of the court decision.
We have revised our guidance following concerns expressed in an article in Taxation, which, after taking legal advice, we concluded were well-founded. We now accept that taxpayers who have already settled claims to capital losses for self assessment tax years are not barred from claiming an increase in such losses. The right to make any such claim does, of course, remain subject to the normal time-limit laid down in section 42 Taxes Management Act 1970.
The original guidance of March 2003, which was expressed in question and answer form, dealt with claims to increase capital losses at question and answer 13. That question and answer have been amended, as has the final section of the guidance headed "Further details on the tax treatment of options following the decision in the case of Mansworth v Jelley".
The amended question and answer 13 now read
Q13. I have already claimed a capital loss on the disposal of shares that I acquired by exercising an unapproved employee share option in the tax year 1998/99 and this was either set off against capital gains in the same tax year or carried forward. Can I now use the decision in Mansworth v Jelley to claim additional losses for that tax year?
A13. Yes, provided you claim before the time limit expires on 31 January 2005. If you claim additional 1998/99 losses, you must first set them against any capital gains arising in 1998/99 that you could not cover with the loss you claimed earlier even though these capital gains may be less than the AEA for 1998/99. You carry forward any surplus loss and set it against the part of the capital gain that exceeds the AEA in the first subsequent year. Any CGT overpaid will be repaid.
The amended final section now reads
The guidance below explains the position where a taxpayer has made a disposal which, following Mansworth v Jelley, gives rise to an allowable capital loss in a self assessment tax year.
1.1 Where the taxpayer has made an Income Tax Self Assessment (ITSA) return for the tax year of disposal and the amendment window (12 months from the statutory filing date for that return) has not closed, the return may be amended to bring any capital gains computation into line with Mansworth v Jelley. If the return is under enquiry the taxpayer can ask the Inland Revenue officer to amend the return at the end of the enquiry to include the claim for a capital loss.
the return cannot be amended to reflect the consequences of the decision.
1.3 Where the taxpayer can no longer amend an ITSA return but a capital loss arises or is increased as a result of Mansworth v Jelley, the taxpayer can make a loss claim within 5 years from the first 31 January following the tax year of disposal:
2.1 Where the taxpayer has not made an ITSA return for the tax year of disposal, a free-standing claim for an allowable loss can be made for that tax year, providing either that there has been no earlier claim for the loss on that disposal or that the earlier claim has not been settled.
For self assessment, any free-standing claim has to be made within 5 years from the first 31 January following the tax year of disposal.
2.2 Where the taxpayer makes a valid free-standing claim to an allowable loss for the tax year of disposal:
3. Taxpayers should set off losses against gains before taper relief
is applied. For examples see leaflet CGT1: Capital Gains Tax an introduction.
The August 2002 version of CGT1 does not contain information about the
position following Mansworth v Jelley.
In recent months, a question has arisen concerning whether the existence of a "repayment clause" in a compromise agreement made at termination of employment gives rise to a charge to tax and National Insurance Contributions under the legislation dealing with restrictive covenants (s225-6 ITEPA 2003 - formerly s313 ICTA 1988 - and s4(4)(b) Social Security Contributions and Benefits Act 1992).
Typically, such a clause requires the employee to repay some or all of the sum settled by the agreement if he or she subsequently initiates litigation in respect of the employment or its termination.
The Revenue's view has been, and remains, that a compromise agreement by its very nature includes a restrictive covenant. This is because the employee agrees not to do something, namely not to commence or continue litigation.
Statement of Practice 3/1996 advises that the Revenue will not attribute any of the settlement sum to such an undertaking, so there is nothing to charge under s225-6 ITEPA 2003.
However, an employer could still make a payment specifically for an undertaking not to litigate, in which case SP 3/1996 would not apply and a charge arises.
The question is whether a repayment clause entails attribution of some or all of the settlement sum to that undertaking since the sum is lost if litigation commences.
Following legal advice, the Revenue accepts that such a charge will not arise other than in very exceptional cases.
Vaughan-Neil v CIR (54 TC 223) confirmed that it is necessary to establish, realistically and as a matter of fact, what the settlement sum is actually paid for. Normally, a compromise agreement made at termination deals with genuine claims and the settlement sum is paid in consideration for settling those claims. Where that is the case, the settlement sum is exhausted by reference to those claims and no sum remains to be attributable to the undertaking not to litigate. That remains the case whether or not a repayment clause exists.
Consequently, enquiries will not normally be raised on this point alone. The Revenue will raise the question only if the claims appear spurious, for example the amounts are clearly in excess of a reasonable sum for settlement of the claims.
Practitioners should bear in mind that there are no tax or NIC provisions allowing adjustment to charges if such a repayment in fact happens.
All the NICs legislative references mentioned in this article are those which apply in Great Britain. Northern Ireland has its own NICs legislation which, in the main, is the same as that for Great Britain.
In some countries the law may provide that one company may pay tax in respect of the aggregated profits of itself and others as if they were a single entity. The provisions at Section 803A of the Income and Corporation Taxes Act 1988 apply for dividends paid to the UK on or after 21 March 2000. Subject to certain conditions, for the purposes of calculating credit relief the relevant profits of these companies are regarded as a single aggregate figure in respect of a single company and the foreign tax paid by the responsible company as paid by that single company.The Section 803A provisions are framed so that only companies that are resident in the country concerned may be included in the calculations of relevant profits and foreign tax for the deemed single entity. A question has been put to us in connection with Limited Liability Companies in the USA.
In Tax Bulletin 29 the Inland Revenue considered the treatment of LLCs under the UK/US Double Taxation Convention then in force and concluded:
Since Tax Bulletin 29 the new UK/US DTC has come into effect.
As stated above, S803A specifically states that the entities to be included must be resident in the country concerned. But in many cases an LLC is included as part of a US grouping for US tax purposes.
In such cases, as a matter of practice, the profits and tax of the LLC should not be excluded from the S803A calculation. This is in line with both Tax Bulletin 29 and the terms of the new Convention.
Changes were made at the beginning of June to the way our Corporation Tax computer system (COTAX) generates flat-rate and tax-related penalty notices. These are now being issued automatically shortly after the date the penalty is incurred instead of being issued after the Return is delivered. A company that fails to file its Return before the last business day within 7 days following the filing date, will receive an initial flat-rate penalty notice approximately 3 weeks after the statutory filing date. A further flat rate penalty notice will be issued automatically when incurred after 3 months unless the initial flat rate penalty is under appeal. Usually a Revenue Tax Determination will be the trigger for the automatic issue of a tax-related penalty notice.
Companies no longer receive a penalty warning letter if the Return is not received on time but the letter reminding the company to file its Return is still issued about one month before the filing date. That letter now contains a more specific warning about late-filing penalties. The changes also include automating the amendment of tax-related penalty determinations when the amount of tax payable recorded on COTAX is revised. Effectively the main change visible from outside the Revenue is a first flat-rate penalty determination notice being received rather than a penalty warning letter.
Although the changes were introduced from the beginning of June, the previous process will continue to operate for companies that have already received a penalty warning letter. Those companies will not receive a flat-rate penalty notice until after the Return has been delivered. So for some time the two processes will operate side by side.
We have identified certain situations where the automatic issue of a penalty notice may not be appropriate, such as companies within group payment arrangements, and these cases will be individually reviewed by the Office responsible for the company. An Office can also stop the automatic issue of a penalty notice for other cases where there are good reasons not to make a penalty determination. This action can be taken before a penalty determination is made where an Office is satisfied that a reasonable excuse prevents a company from submitting its Return. COTAX automatically generates penalty notices for the accounting period shown on the notice to file, which assumes a 12 months period of account. Where the actual accounting period does not correspond with that period a late-filing penalty determination may be wrongly issued or a late-filing penalty may have been incurred but no determination made. Late-filing penalty determinations will set be aside or issued to correct the position after the Company Tax Returns for the correct accounting periods are filed. A wrongly issued late-filing penalty notices can be avoided by telling the Revenue office responsible for the company the correct accounting periods within 12 months of the end of the period shown in the notice to file.
Following completion of an evaluation of the initial pilot, the pre-disposal Portfolio Valuation Scheme described in Tax Bulletin 57 is to continue. Full particulars are set out below including the current entry requirements, which include a significant relaxation from today in the criterion relating to aggregate value. Additionally, for the supporting information accompanying an application, we will now exercise discretion in relation to considering professional valuation reports prepared either side of 31 March 1982, should none be available relating expressly to that date.
The post-disposal Multiple Land Valuation Scheme, also described in Tax Bulletin 57, continues unchanged.
Both schemes offer the benefit of a full monitoring service and a single contact point. There is no charge for either of these services.
The pre-disposal Portfolio Valuation Scheme enables participants to agree the value of land and buildings owned on 31 March 1982 in advance of a statutory need for such valuations. This service helps companies and groups of companies to meet their obligations under Corporation Tax Self-Assessment by avoiding the need to agree individual 31 March 1982 valuations as and when properties are sold.
Participation is conditional on holding a property portfolio that meets the minimum size requirement of:
These entry criteria will be kept under review as part of an ongoing evaluation of the scheme. Any changes to the criteria or other aspects of the scheme will be announced in Tax Bulletin.
We will also continue to consider part portfolios, but only if they can be clearly distinguished from other property held on the basis of objective commercial criteria, and only if they meet the minimum size requirement.
We are unable to agree values for properties situated outside the United Kingdom. A portfolio that includes such properties but which otherwise meets the minimum size criteria will be admitted, but only in respect of the United Kingdom properties included in it.
If a company or group of companies wishes to participate in the scheme, we will limit the information we initially ask for about the individual properties within the portfolio to that which is absolutely essential. We will subsequently seek further information only for those properties selected for valuation checking.
The initial information required for every property in a portfolio comprises:
a. the full address and postcode of each property, together with a plan if required for better identification;
b. a description of the property and its actual use in 1982;
c. the interest held in the property as at 31 March 1982; and
d. if not freehold, full details of the interest held at 31 March 1982 including for leaseholds the term, date of commencement, passing rent and details of rent reviews;
e. a professional valuation of the property (by which we mean a valuation carried out by a professionally qualified valuer, whether employed by the taxpayer or an independent company) together with a note of the basis upon which the valuations have been made (including whether they are in accordance with the RICS Red Book) and the date to which they relate.
For those properties selected for valuation checking, more detailed supporting information may then be required including (inter alia) planning matters, development potential, state of repair and other relevant and material facts. Specific requirements will be determined in the light of discussions with the company or group of companies or its agents.
It should be noted that the onus will remain with the applicant to demonstrate the extent and nature of the interest owned at 31 March 1982.
31 March 1982 valuations derived from earlier or later professional valuation reports (where undertaken for other purposes) may be accepted for entry into the scheme where it is considered that the methodology is reasonable and is unlikely, prima facie, to introduce unacceptable risk. Entry in such cases will be at the discretion of the Land Portfolio Valuation Unit and Capital Taxes Technical Group (see below).
The work on agreeing 1982 valuations will be carried out by the Land Portfolio Valuation Unit (LPVU), which will generally undertake a review of the properties along the lines of the check carried out for the Multiple Land Valuation Scheme. A sample review will be adopted where it is considered appropriate having regard to the size and nature of the portfolio, the basis of valuations submitted and anticipated risks, which has to be a matter of judgement in each case. This will not prevent, whether at the request of the applicant or the LPVU, the agreement of individual valuations if required (for details of this service see IR Press Release PR2/00 of 10 January 2000).
Any company or group of companies wishing to use the service can obtain further information from:
Capital Taxes Technical Group
550 Streetsbrook Road
A note of the tax office and reference to which the company's Corporation Tax is submitted should be provided. (For a group of companies, this information should be provided in relation to its principal company).
There have been no Extra Statutory Concessions for this period.
|Statements of Practice|
|Number||Title||Date of Issue|
|SP 2/03||Business by telephone - services for non contract centre customers - Supersedes SP 2/98||1/9/03|
|SP 3/03||Business by telephone - Inland Revenue contact centres - Supersedes SP 8/98||1/9/03|
You can get copies of SPs and ESCs by telephoning 020 7438 4266.
The content of Tax Bulletin gives the views of our technical specialists on particular issues. The information published is reported because it may be of interest to tax practitioners. Publication will be six times a year, and include a cumulative index issued on an annual basis.
Nothing in this Bulletin affects a taxpayer's right of appeal on any point.
Letters on any article appearing in Tax Bulletin should be sent to the Editor, Mr Shell Makwana, Room G7, New Wing, Somerset House, Strand, London, WC2R 1LB or e-mail Shell.Makwana@ir.gsi.gov.uk. We are sorry though that neither he nor our contributors will normally be able to enter into correspondence about Tax Bulletin or its contents.
The subscription for 2003 is £22. If you would like to subscribe to Tax Bulletin please send your name and address together with your cheque to Inland Revenue, Finance Division, Barrington Road, Worthing, West Sussex BN12 4XH. Cheques should be crossed and made payable to "Inland Revenue".
If you would like information regarding Tax Bulletin subscription or distribution please contact Mrs Sylvia Brown,
Room G7, New Wing, Somerset House, Strand, London, WC2R 1LB. Telephone: 020 7438 6373. For more general information regarding Tax Bulletin, please contact Mrs Jayne Harler, Assistant Editor, on 020 7438 7842 or at the address provided above.
Tax Bulletin is covered by Crown Copyright. There is no objection to firms copying the Bulletin for their own use. Anyone wishing to republish Tax Bulletin or extracts more widely should write for permission to Miss Glenda Bishop, Room G12, New Wing, Somerset House, Strand, London, WC2R 1LB.