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Tax Bulletin Issue 74

Contents

Interpretations

Miscellaneous

Do Not Be Taxed By the 31 January Deadline

Your clients face a £100 penalty – and further penalties along with recovery action – if their Self Assessment Returns and payments do not reach the Department in time.

If you haven’t already, why not register to use our on-line services. For further information see the article on page 1168

New Executive Chairman of HMRC

David Varney was recently appointed as the Executive Chairman of the soon to be HMRC (Her Majesty’s Revenue and Customs). In the short time that he has been at the helm we have been given a small insight as to how David sees the integration of the two departments.

David worked for 28 years for Shell and more recently as chairman for the mobile phone company mm02. He is currently chairman of Business in the Community, as well as being president of the Institute of Employment Studies.

In a variety of interviews that he has conducted since his appointment he has made it his remit to find out what works well in both departments.
"I have always been interested in the challenge, this is a unique opportunity to contribute to creating a public service organisation at a time of great change. This is an attempt to find best practice in both organisations, and maybe outside. Where it’s inside we’ll adopt it. We have already done that in a couple of areas of knowledge where the Revenue had something that Customs didn’t have and vice versa. Our task is to look at all the different segments and find out what works best for people and then implement it."
David will also be looking at how we better meet customer needs.
"We are looking at pilot schemes like on-line filing and also how we can make things simpler and more straightforward for small businesses".

With the vast amount of work that has to be done David is in no doubt that this is a huge challenge.
"I am building a whole new department- this is not a case of a simple merger or take-over. Best practice, efficiency and better customer service will be our guiding principles and I am sure we can, and will, deliver".

Tax Credits Overpayments

Identifying an overpayment

Overpayments are formally identified after the end of the tax year when claimants finalise their claim for the previous year and we check the amount due against the amount paid. We aim to pay the right amount over the year so claimants are not under or overpaid. However, there are several reasons why we might find, after the end of the year, that a claimant has been paid too much tax credits, including, for example, where:

  • we did not know about a change of circumstances that reduced their entitlement;
  • their income rose by more than £2,500 in tax year 2003-04, compared with their income for 2001-02, and we did not know about it;
  • they told us about a change in their income during the year but their actual income was more than they expected.

If, when we finalise an award of tax credits, we identify that entitlement to tax credits should have stopped in the previous tax year, any provisional payments made in the current tax year will be recoverable. This means there may be an overpayment for both the previous tax year and the current tax year.

Notification of an overpayment

When we finalise an award of tax credits we send the claimant:

  • a Finalisation Notice (TC602) showing the amount of tax credits paid and details of any overpayment for the previous tax year, and
  • a Statement of Account (TC607) showing details of any overpayment for the current tax year.
    Repaying an overpayment

Our approach to recovering overpayments is described in Code of Practice 26 (COP 26), What happens if we have paid you too much tax credit? You can refer to this at ww.inlandrevenue.gov.uk/leaflets/c11.htm.

Wherever possible, we will collect a previous year’s overpayment by reducing the claimant’s payments for the current tax year, subject to the following automatic limits on how much we will reduce the payments:

  • 10% for claimants receiving the maximum award;
  • 100% for claimants receiving only the family element of Child Tax Credit;
  • 25% for all other claimants.

These limits are applied after the claimant’s payments for the current year have been calculated.
Alternatively, claimants can pay us back straight away if they wish, by sending a personal cheque to:

Inland Revenue
Tax Credit Office
Valuables Team
Preston
PR1 0SB.

Direct recovery of an overpayment

We will recover an overpayment direct from the claimant if they do not have any current entitlement to tax credits or if their award for the current year has ended. This includes:

  • where the overpayment arose on a joint claim by two claimants who have since stopped living together as a couple, even if one or both of them has re-claimed as a single person or jointly with a new partner, or
  • where the overpayment arose on a claim from a single person who has since started living with someone as a couple, even if they have reclaimed with their new partner.

We will issue a Notice to Pay (TC610). The notice advises claimants that payment should be made within 30 days of the issue of the notice and contains a payslip. For overpayments arising in 2003-04 and 2004-05, claimants can pay by 12 monthly instalments if they wish. To do this, they should contact the Payment Helpline on 0845 302 1429.

If we do not hear from the claimant, and an overpayment is unpaid 30 days after the issue of the Notice to Pay, we will take recovery action. We will phone or write to the claimant and, depending on the outcome of the contact, we may start legal proceedings.

Recovery of an overpayment in a joint claim

When making a joint claim for tax credits, both claimants are required to sign the form and so take responsibility for the information on the claim. This means that both claimants are "jointly and severally" liable to pay in full any overpayment. If one of the claimants cannot, or will not, pay then the other claimant is liable to pay the full amount overpaid.

We will issue notices to each claimant in a joint claim.

Right of appeal

Claimants have a statutory right of appeal against our decision about their entitlement to tax credits. Any appeal must be made in writing to the Tax Credit Office within 30 days from the date on which a notice is issued. There is no right of appeal against the recovery of an overpayment; however, claimants may ask us to re-consider whether they ought to be asked to repay their overpayment, or to vary the rate or method of recovery, in line with COP26.

How to pay, help available

Claimants can call the Payment Helpline on 0845 302 1429 at any time after the issue of a TC602, TC607 or TC610
if they:

  • wish to pay in full, or
  • wish to pay by instalments where there is no continuing award, or
  • have difficulty paying.

After considering the facts in individual cases, we may decide not to collect all or part of an overpayment, or to allow the claimant more time to pay, if payment would cause them and their family hardship. We will look at each individual case sympathetically in line with the factors set out in COP 26.

Mistakes by the Revenue

Where an overpayment arises as a result of our mistake we will not ask for it back if the claimant could reasonably have thought their award was right. If a claimant does not agree that they should have to repay an overpayment of tax credits, they need to set out their reasons in writing. They can use Form TC846, Request to reconsider recovery of tax credits, which is available on our website at www.inlandrevenue.gov.uk/menus/tax-credits.htm or from the Tax Credits Helpline on 0845 300 3900.

Interpretations

Composite and Managed Service Companies and the ‘Service Company’ legislation (IR35)

Composite service companies exist in a number of different areas of business. These include, for example, construction, IT, teaching, medicine, accountancy etc. Composite service companies usually employ workers and then supply them to clients for whom they work.

An article on the subject of Composite Service Companies (CSC) was included in Tax Bulletin Issue 60. It covered the working arrangements within such companies and it indicated that the companies would need to consider whether the service company legislation (IR35) applies to engagements undertaken by individual workers. This article makes it clear that managed service companies are in the same position, and then gives details of two areas where our compliance teams find frequent errors with the "service company" legislation. These are as follows:

  • Some workers, notably teachers, cleaners and entertainers, are deemed to be employed earners for NICs. This means that they are within the service company legislation for National Insurance, irrespective of whether they are within it for tax. The same is true of those holding non-executive directorships via a service company.
  • Some workers have been paid travel and subsistence expenses, tax-free, by their composites, even though they do not meet the criteria set out in the legislation. In particular, workers who have only a single assignment with their composite may be subject to tax and NICs on their reimbursed travel costs.

Managed Service Companies

Some promoters, as an alternative to the CSC, offer managed service companies (MSC). The promoter will set up the company, appoint the director(s), company secretary etc and deal with all the administration. The "worker" will normally be an employee and shareholder of the MSC and will be entitled to receive salary, expenses and dividends. The promoter will retain its administration fee and the balance is available to be paid to the worker. Unlike the CSC there is only one "worker" in an MSC. However, as with CSCs, the MSC will have to consider whether the service company legislation applies to individual engagements with clients.

Application of the NICs service company legislation

Under the service company legislation, one of the tests for tax is whether the worker "would be regarded for income tax purposes as an employee of the client" if engaged directly. However, under the NICs legislation, the test is whether the worker would be regarded as employed in employed earner’s employment by the client.

Office Holders

Office holders who are gainfully employed in the UK with general earnings are included within the meaning of employed earner, in addition to those employed under a contract of service. Consequently non-executive directors without a contract of service fall within the intermediaries legislation for NICs, but not for tax.

Other categories of worker treated as being employed earners

It should be noted that the Social Security (Categorisation of Earners) Regulations 1978 (SI1978/1689) (Categorisation Regulations) treat some earners as falling within the category of employed earner in certain circumstances where they would otherwise be considered to be self-employed earners. The following earners therefore fall within the intermediaries legislation for NIC purposes:

  • Cleaners (as defined in Schedule 1 part 1(1) of the Categorisation Regulations) of:
    • offices, hotels etc;
    • non-domestic telephone apparatus and associated fixtures.
      (See the Employment Status Manual at ESM4018 for more details.)
  • Lecturers, teachers, instructors or those operating in any similar capacity (as defined in Schedule 1 part 1(4) of the Categorisation Regulations) in an educational establishment.
    (See the Employment Status Manual at ESM4503 for more details.)
  • Entertainers (as defined in regulation 1(2) of the Categorisation Regulations) where remuneration includes an element of salary (as defined in para 5A of column b of Part 1 of Schedule 1 to the Categorisation Regulations).

In these circumstances the MSC/CSC is to be treated as the secondary class 1 contributor. A deemed payment calculation for NICs must thus be carried out by a MSC/CSC employing these types of workers, whether or not they are within the service company legislation (IR35) for tax. The composite must deduct employee’s NICs and pay employer NICs on the deemed employment income.

CSC’s / MSC’s – deductibility of workers’ travel and subsistence expenses

The principal legislation relating to employee travel expenses is contained in Sections 337 to 339 ITEPA 2003. Although those provisions do not specifically mention "subsistence" the Revenue has long accepted that necessary travelling expenses include the additional costs of meals and accommodation that an employee incurs on a business journey.

Section 337 ITEPA 2003

Section 337 permits a deduction for travel expenses which are necessarily incurred "in the performance of the duties" of the employee’s employment. This was the original rule for employee travel expenses, and before 6 April 1998 it was the only rule under which such expenses could be deducted. It is a very restrictive rule because it is limited to travel that is undertaken in the course of actually performing the duties of the employment. The extension of the rules for employee travel expenses from 6 April 1998 to include travel to a temporary workplace (see later) means that Section 337 is now only relevant to:

  • travel between workplaces, and
  • travelling appointments.

A "travelling appointment" is one where the employee is employed to travel from place to place – as in the case of a commercial traveller or a service engineer. Employees who provide services through the medium of a CSC / MSC are unlikely to fall into that category. However if they are required to travel from one workplace to another in the course of their employment the expenses of that journey will be deductible under Section 337.

Sections 338 and 339 ITEPA 2003

Section 61 Finance Act 1998 widened the scope of the employee travel rules so that, from 6 April 1998, employees are entitled to deduct the expenses of travel to a "temporary workplace". That rule is now contained in Sections 338 and 339 ITEPA 2003. The basic proposition is that an employee may deduct expenses which are attributable to his or her necessary attendance at a place in the performance of their duties, unless the journey counts as ordinary commuting or private travel.

"Ordinary commuting" is travel between the employee’s home (or any other place that is not a workplace) and a permanent workplace (Section 338(3)). A permanent workplace is a place that the employee visits regularly in the performance of the duties of the employment which is not a temporary workplace (Section 339(2)). Thus, travel to a temporary workplace is not ordinary commuting. The expenses of such a journey are deductible even if the journey starts or finishes at the employee’s home.

So what is a temporary workplace? Section 339(3) defines this as a place that the employee attends to perform a task of limited duration, or for some other temporary purpose. It is important to recognise that that is the only definition of a "temporary workplace". If there is no identifiable task of limited duration, or other temporary purpose for the employee’s visit then:

  • the place cannot be a temporary workplace, as defined, and
  • if the employee visits the place regularly (so that it is a permanent workplace) the expenses of the journey will not be deductible.

If there is an identifiable task of limited duration, or some other temporary purpose for the employee’s visit, there are two further rules which may still prevent a place from being a temporary workplace. They are the "24 month rule" and the "fixed term appointment rule". Both are in Section 339(5) ITEPA 2003.

The 24 month rule

This rule says that a place cannot be a temporary workplace if the employee’s attendance is:

  • in the course of a period of continuing work at that place lasting more than 24 months, or
  • if it is at a time when it is reasonable to assume that it will be in the course of such a period.

The "reasonable to assume" test means that the parties need to take account of changing circumstances. If an employee is sent to work at a place to perform a task which is expected to take 20 months (and which is therefore of limited duration), and which does in fact take 20 months, it will be a temporary workplace throughout. However if there are delays which mean that the task will in fact take more than 24 months the place will cease to be a temporary workplace from the point when it becomes known that the 24 month limit is going to be exceeded. That could well happen even before the original 20 months point is reached.
Conversely, if a task is expected to last for 30 months that workplace will be a permanent workplace from the start. If it should turn out that the task will in fact take less than 24 months the place will become a temporary workplace only from the point when the change of duration becomes known.

The fixed term appointment rule

This rule says that a place cannot be a temporary workplace if the employee’s attendance is:

  • in the course of a period of continuous work comprising all or almost all of the period for which the employee is likely to hold the employment, or
  • if it is at a time when it is reasonable to assume that it will be in the course of such a period.
    For workers who provide their services through the medium of a CSC / MSC, the operation of this rule depends very much on the nature of the employment contract between the worker and the company. There are 2 broad possibilities:
  • The worker has a succession of discrete employment contracts with the company, each lasting only as long as the assignment on which the employee is engaged.
  • The worker has an ongoing or "over-arching" contract of employment which covers all the employees’ assignments with the company.

Which of those alternatives applies can only be determined by considering the terms of the individual contracts. When the nature of the contract has been determined the consequences in relation to the travel expenses rule are as follows.

Succession of discrete employment contracts

If the worker has a succession of discrete employment contracts with the company, each one involving attendance at a single site and each lasting only as long as the assignment on which the employee is engaged, none of the places visited will be a temporary workplace. Each visit will last only as long as the discrete employment concerned so the fixed term appointment rule will apply.

Ongoing or "over-arching" contract of employment

If the worker has an ongoing or over-arching contract of employment covering all the assignments that he or she undertakes for the company, it may well be that none of those assignments will last, nor be expected to last, for all or almost all of the period for which the employee holds the over-arching employment. In that case the fixed term appointment rule will not apply. If the employee spends less than 24 months at each site each one will be a temporary workplace – assuming of course that the basic "task of limited duration/other temporary purpose" test is met.

However the effect of the "reasonable to assume" test should not be overlooked. An individual may have a history of moving from one CSC / MSC to another CSC / MSC, undertaking just one assignment for each company. In the absence of evidence to the contrary it would be reasonable to assume that that pattern will continue. Each new employment/assignment would then be regarded as a permanent workplace unless and until it could be shown that, on a particular occasion, the employee would in fact be moving on to a second or subsequent assignment with the same employer.

Also, an individual may expect, when he takes up the employment with the composite, that the assignment on which he is working will be his only one – because, for instance, he is filling in time between permanent assignments, or he is returning to an overseas country. In these cases the individual would not have a temporary place of work and his travel and subsistence expenses will be fully taxable and subject to NICs.
Similarly, an employee with a history of taking successive assignments with the same employer will eventually decide that a particular assignment will be his or her last. Or he or she may decide to take a permanent position working directly for their client, when the assignment is completed. From the point when that decision is reached that workplace will no longer be a temporary workplace. It will be the place where the employee expects to work for all or almost all of the remaining period of his or her employment. However this rule will not be used to deny a deduction for travel to a workplace that would otherwise be a temporary workplace if it is the final posting for someone whose contract of employment has lasted for at least 5 years.

If an individual’s travel and subsistence does not meet the tests set out above for a temporary workplace, it must be subject to PAYE and NICs.

Miscellaneous

Agents & Tax Practitioners

The Inland Revenue Online Services for authorised agents and payroll bureaux provide you with easy ways to file a wide variety of PAYE forms and returns, Company Tax returns, Individual Self Assessment, Partnership and Trust returns on behalf of your clients over the Internet quickly and securely.

The online services let you receive notifications on behalf of your clients and provide you with online acknowledgements that your clients’ information has been received safely. You can opt to receive your clients’ statutory notices and you can view and download lists of your authorised clients and their Self Assessment Statements of Account.

Agents filing client’s Self Assessment Tax Returns can choose to use the Internet or Electronic Lodgement Service (ELS) to file all Self Assessment Tax Returns (Individual, Partnership and Trust).
Agents wanting to send and receive PAYE forms and returns can use either the Internet or Electronic Data Interchange (EDI).

You can also set up other users within your organisation to use the Internet services you have registered for. This gives you greater flexibility to allow for holidays, sickness and any other reasons for absence. It also lets you organise your work because different people may be responsible for different processes, for example one user may handle end of year returns (P35, P14s, P38A) and another may handle expenses and benefits (P11Ds, P11D(b)).

The number of agents registered for online services has doubled over the last twelve months. Returns filed by agents over the Internet are currently running at three times last year’s levels. We have already received more Internet returns from agents than the whole of last year.

Do it online at www.inlandrevenue.gov.uk and select the ‘practitioner zone’ to find out more about the online services available to agents.

Inland Revenue Trusts Reorganisation

Inland Revenue Trusts is restructuring and as a result of this the offices in London (Charles House) and Manchester (Albert Bridge House) are closing at the end of March 2005. This means that customers may be asked to make their Self Assessment return to a different office to the one they are used to dealing with and they may receive enquiries from a different office to which they make the return.

Individual trusts will be informed of any change of office as the Self-Assessment returns for 2004-05 will, with a few exceptions, be issued by the new office dealing with the trust. Broadly, from 1 April 2005:

  • Trusts administered in the London Boroughs and in the counties of Devon, Cornwall, Somerset, Dorset, Gloucestershire and Wiltshire will be dealt with by our IR Trusts Truro office.
  • Trusts administered in Scotland and Northern Ireland, trusts established under Scottish law and any trusts with corporate trustees will be dealt with by our IR Trusts Edinburgh Office.
  • Trusts administered in the remaining counties of England, and in Wales, will be dealt with by our IR Trusts Nottingham office.

During this reorganisation customers may experience some slight delay in dealing with correspondence, particularly if the records for their trust are being moved to another office. We are sorry for any delay and assure you we are working hard to maintain a high level of customer service.

The full postal addresses for the Edinburgh, Nottingham and Truro offices are:

Inland Revenue Trusts
Meldrum House
15 Drumsheugh Gardens
Edinburgh
EH3 7UL
DX 542000 Edinburgh 14
Telephone 0131 777 4343

Inland Revenue Trusts
Huntingdon Court
90-94 Mansfield Road
Nottingham
NG1 3HG
DX 714240 Nottingham 21
Telephone 0115 911 6500

Inland Revenue Trusts
Lysnoweth
Infirmary Hill
Truro
Cornwall
TR1 2JD
DX 727117 Truro 6
Telephone 01872 245403

Amendments to Previous Tax Bulletin articles

Since the first publication of the following articles, there have been some small amendments. These are shown in bold.

This first appeared in Tax Bulletin 15 (page 194).

Inheritance Tax (IHT): Variation of inheritances following a death

The beneficiaries of a deceased person’s estate may wish to alter their entitlements under the estate, by changing the terms under which the original inheritance arose, whether by the deceased’s Will, the laws of intestacy or otherwise. For example, a daughter inheriting under her father’s Will may want to pass the inheritance onto her own child. Not surprisingly everyone who would lose out as a result of the change – called a variation – must agree to it. There are special rules concerning the IHT consequences of variations in Section 142 Inheritance Tax Act (IHTA) 1984. The main ones are set out below:

If a variation is made by the parties affected by it:

  • in a written instrument that includes a statement that section 142 IHT is to apply to the variation; and
  • within two years of the relevant death;
    and
  • where the variation means that additional IHT is payable, the personal representatives of the deceased are also parties to the instrument, then the estate will be taxed as if the variation had been made by the deceased at the time of his/her death. In other words IHT will be calculated on the basis of the varied entitlements, not the original ones.

We have recently been asked for guidance in two areas relating to IHT and instruments of variation.

Marshall V Kerr

In June 1994 the House of Lords, in the case of Marshall v Kerr (1994) 2 All ER 106, found that those provisions of Section 62 Taxation of Chargeable Gains Act 1992 which apply where there is a variation and election, did not mean that the variation of the terms of a deceased person’s Will was to be treated for all purposes of capital gains tax (CGT) as made by the deceased. We have been asked whether variations which meet the conditions in Section 142 IHTA 1984 will still be treated for IHT purposes as made by the deceased and not by the beneficiary or beneficiaries.

Our view is that, as the relevant IHT legislation differs from the CGT provisions which were considered in Marshall v Kerr, that decision has no application to IHT. Variations which meet all the statutory conditions will continue to be treated for IHT purposes as having been made by the deceased.

Variation Of Inheritances Following The Death Of An Original Beneficiary Within The Statutory Two-Year Period

As explained above, for Section 142 IHTA 1984 to apply, all the beneficiaries affected by the variation must join in a written instrument effecting the variation. We have been asked how this requirement should be interpreted when one of the beneficiaries dies before a variation is made.

Our view is that the legal personal representatives of a beneficiary (the second deceased) may enter into a variation.

If the variation will reduce the entitlements of the beneficiaries of the second deceased then they, as well as the legal personal representatives of the second deceased, must agree to the variation. The Revenue will require evidence of the consent of the beneficiaries of the second deceased to the variation. If they are not themselves parties to the variation, other written evidence of their consent will be sought.

This view applies for CGT purposes also.

[Section 142 IHTA 1984; Section 62 TGCA 1992]

This first appeared in Tax Bulletin 19 (page 254).

Inheritance Tax (Iht): Post-Death Variation Of Inheritance By Survivorship

Beneficiaries of the estate of a deceased person – whether under the will, relating to intestacy or otherwise – may wish to change their inheritances. There are special IHT rules for changes or variation made within 2 years after the deceased’s death.

If a variation made within the 2-year period satisfies certain other conditions, IHT is charged on the death as though the deceased person had made the variation and the beneficiaries do not have to pay tax on any gift of their inheritance. The main conditions are that the variation is made in writing and that the variation contains a statement that the IHT rules are intended to apply.

Similar rules apply for certain purposes of capital gains tax (CGT).

Recently, we have seen suggestions that these rules do not apply to a variation of the deceased’s interest in jointly held assets, which passed on the death to the surviving joint owner(s).

For example, the family home was owned by a mother and her son as beneficial joint tenants and on the mother’s death, her interest passed by survivorship to the son who then became the sole owner of the property. It has been suggested that, in this example, the son cannot, for IHT/CGT purposes, vary his inheritance of his mother’s interest by redirecting it to his children.

We do not share this view.

Both IHT and CGT rules apply not only to dispositions/inheritances arising under will or the law of intestacy but also to those effected "otherwise". In our view, the words "or otherwise" bring within the rules the automatic inheritance of a deceased owner’s interest in jointly held assets by the surviving joint owner(s).
[Section 142 IHT Act 1984 and Section 62(6)-(9) Taxation of Chargeable Gains Act 1992.]

This first appeared in Tax Bulletin 50 (page 813).

Inheritance Tax: Accumulation & Maintenance Trusts

Most practitioners will be familiar with the inheritance tax (IHT) provisions for "Accumulation and Maintenance" trusts (AMTs). Among other things, these provide exemption from the periodic IHT charge on discretionary trusts either:

  • so long as all beneficiaries are grandchildren of a common grandparent ( or a surviving spouse of such a grandchild);

or

  • in other cases, for a maximum period of 25 years since the test for AMTs were first satisfied.

The second category includes a significant class of trusts which were already in place when these rules for AMTs were finalised in 1976. So for all those which are still subject to this test, the grace period ran out on the same date 25 years on, at the close of 15 April 2001. Practitioners responsible for pre-75 AMTs may want to note that a charge potentially arose at this point. More generally, they will want to take note that IHT charges at the 25-year point will arise from then on for other trusts set up or modified since the mid-70s, at the particular anniversary dates appropriate to each trust.

In more detail

Trusts are liable to an IHT charge once they fail to qualify under Section 71 of the Inheritance Tax Act 1984 (IHTA) because they no longer meet the conditions for grandparent/ grandchildren or a 25 year period has elapsed.

The 25-year period runs from the latest of:

  • 15 April 1976;
  • the date the settlement commenced; and
  • the date of attainment of accumulation and maintenance status.

Settlements not affected are those set up by a common grandparent for grandchildren, whether or not with contingency provision for the widow or widower of any grandchild who dies before becoming entitled to the property.

For those settlements which are affected, IHT is calculated at a flat rate (Section 71(5)) which tapers over time on property which ceases to be held on AMTs or when the trustees make a disposition which reduces the value of the property.

The tax charge for a 25 year period is 21% calculated as follows:

  • 0.25% for each of the first 40 complete successive quarters in the relevant period;
  • 0.20% for each of the next 40 complete successive quarters in the relevant period;
  • 0.15% for each of the next 40 complete successive quarters in the relevant period.

Thereafter the normal rules for ten-yearly and proportionate charges for discretionary trusts apply to these settlements.

This first appeared in Tax Bulletin 62 (page 991).

Important changes to National Insurance contributions (NICs) from 6 April 2003

From 6 April 2003 Employee NICs are due:

  • at 11 per cent (or the appropriate contracted out rate) on earnings from the Primary Threshold to the Upper Earnings Limit, and
  • at 1 per cent on all earnings that exceed the Upper Earnings Limit.

Employer NICs are due at 12.8 per cent (or appropriate contracted out rate up to UEL) on all earnings above the secondary threshold.

Self-employed Class 4 NICs are due at 8 per cent on profits or gains between the Lower Profits Limit and the Upper Profits Limit and at 1 per cent above the upper limit.

The introduction of the new structure means that the calculation of the annual maximum changed from
6 April 2003
. This has implications for deferment cases (Social Security Contributions)(Amendments) Regulations S.I.2003/193 refers). In general people who are presently able to defer payment of NICs will continue to do so. However, they will pay NICs at 1 per cent on all earnings or profits/gains above the Primary Threshold/Lower Profits Limit for employments/self-employment where deferment has been allowed.

Tax Bulletin 70: Stamp Duty Land Tax: Group Relief: Correction

Tax Bulletin 71 (June 2004) contained a corrected version of paragraph 43 of the article on Stamp Duty Land Tax: Group Relief (Tax Bulletin 70, April 2004, page 1107). We are sorry that another misprint was not corrected. Paragraph 43 should read:

43. Section 54(4) FA 2003 provides the third case of exception from the deemed market value rule in section 53 FA 2003. The exception applies to the distribution of assets on the winding up of a company, as long as the subject matter of the transaction or an interest from which that interest is derived, has not been the subject of a transaction in respect of which a claim to group relief was made by the vendor. But it is not the Inland Revenue’s intention that section 54(4) should be prevented from applying where a group relief claim was made by the vendor but recovered under paragraph 3 of Schedule 7 either at the time of or before the effective date of the transaction.

Prosecutions

The Inland Revenue has a policy of selective prosecution involving the most serious cases across the whole range of the tax system. The Board sees this as an important part of its strategy to deter fraud and evasion. As part of the wider publicity for this strategy, details of Revenue Prosecutions are occasionally published in Tax Bulletin.

Robert Newark

A successful businessman who failed to pay tax or National Insurance for 12 years was recently jailed for 42 months at Canterbury Crown Court.

Robert Newark (61) from Herne Bay in Kent, pleaded guilty to 15 counts of cheating the Inland Revenue. The turnover of his business was over £5 million which generated a tax loss, including interest, of more than £1 million pounds.

Sentencing Newark, Judge Webb commented:

"This was fraud on a massive scale over a number of years, where you were persistently and deliberately dishonest. These offences are so serious that only a custodial sentence is appropriate."

Newark’s business, The Bubble Factory supplied bubble wrap packaging to supermarket suppliers and other companies, where it was used to protect fruit in plastic containers. At its height the business employed 12 people and had an annual turnover of £750k.

A Special Compliance Officer Investigator said:

"This case sends out a warning to anyone tempted to cheat the Inland Revenue. Mr Newark didn’t pay a penny in income tax for several years and he didn’t pay the PAYE/ National Insurance Contributions of his employees even though his business was very successful. He deducted tax from wages he paid and kept the money for himself. He cheated the public purse and created false documents in an attempt to mislead the Inland Revenue. We caught up with him and this is what will happen to anyone who believes they can copy Mr Newark’s actions."

Errol Mark

Following a recent sentencing hearing at Inner London Crown Court, Errol Mark (49) of East Lane, North Wembley, has been jailed for 4 years for cheating the Public Revenue of more than £185,000.
Mark was sentenced alongside his co-defendant, Theodolph Cudjoe for the fraud which was arranged around false tax repayments over a four-year period from April 1996 to February 2000.

Mark was, at the time, employed by the Inland Revenue and trusted with the responsibility of issuing tax repayments. He made over eighty repayments totalling in excess of £185,000. Mark defrauded the Inland Revenue by systematically creating fictitious records in order to generate repayments of tax that were not otherwise due, and by setting himself up as a part-time bookkeeper and making bogus repayments for builders who did not exist.

In a joint operation between the Metropolitan Police Fraud Squad and the Inland Revenue Board’s Investigation Office, Nottingham, the Police arrested Mark and his home was searched. He resigned during the course of the investigation.

In passing sentence His Honour Judge Charles Gibson remarked:

"This was a serious breech of trust involving the misuse and abuse of the Inland Revenue’s computer system by an employee of some seniority and experience."

Theodolph Delano Cudjoe, Mark’s cousin, had entered a guilty plea prior to the commencement of the trial. He was sentenced to 12 months imprisonment. Confiscation and costs hearings have been set for a
later date.

Dave Hartnett, Director General Inland Revenue Policy, said:

"The integrity of officers who work for us must be above question. This prosecution demonstrates our determination to find and then take forceful action against members of our staff who abuse the trust we place in them."

Inland Revenue Investigator Tony Turton said:
"This was an extremely difficult case to prove, due to the duplicity and cunning of Mr Marks. He tried to
cover his tracks by using false passwords and creating false records and identities, which he thought we would not find – he was wrong. This case proves that we have the skill and determination to find and
prosecute cheats."

It is the stated policy of the Inland Revenue to pursue prosecution in ALL cases where an Inland Revenue employee is involved in any way in fraudulent activity intended to cheat the public purse. Such cases represent a breach of trust of the highest order and this is reflected in the severity of the sentences handed down by the judiciary.

Richard Deighton

Richard Deighton (58) a barrister from Chichester Sussex was recently sentenced to 9 months jail at Maidstone Crown Court.

Mr Deighton had been found guilty on nine counts at an earlier court appearance of cheating the Public Revenue, contrary to common law. The total tax and interest loss is approximately £160,000. A confiscation hearing is due to take place later in the year.

In sentencing Mr Deighton, His Honour Judge Patience said:
"As a man of the bar you should have acted to the highest standard and the gravity of the matter was that you sustained over 8 years these dishonest offences. What you couldn’t face was the serious reduction in your standard of living with your family if you paid your income tax."

Mr Deighton failed to inform the Revenue that he was liable to pay tax arising from his profits as a barrister.

Officers from the Inland Revenue Special Compliance Office (SCO) London carried out search operations, under Section 20C TMA 70, in January 2003 at Mr Deightons home address. Simultaneous search operations took place at the London Chambers at which Mr Deighton is a tenant. A number of documents were seized at both locations. Further documents were obtained from third parties, including Mr Deighton’s bank and chambers, under production powers available to the Revenue. Many of the documents were later used in evidence against Mr Deighton.

Mr Deighton was arrested by the police, and interviewed under caution by SCO investigators at Chichester police station in March 2003.

An Inland Revenue spokesman said:
"The Inland Revenue places great reliance on the honesty and integrity of accountants, solicitors and barristers. If evidence is obtained of tax frauds in which such a person is involved, he or she is likely to be prosecuted."

Inland Revenue Statements of Practice and Extra-Statutory Concessions issued between 1 October 2004 and 30 November 2004

Extra Statutory Concessions

There have been no Extra Statutory Concessions for this period

Statements of Practice

There have been no Statements of Practice for this period

You can get copies of SPs and ESCs by telephoning Chandra Chandramohan, on 020 7147 2363.

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