Welcome to the fourteenth edition of the Pensions Tax Simplification Newsletter. As always please circulate this newsletter to anyone who you think may find it useful as it helps us to help you, the customer, if messages and guidance are cascaded as quickly as possible to those who might need it.
Items 2 to 6 are all technical issues that we feel need further clarification as we have had a number of queries on these particular points. Items 7 to 12 provide further information and reminders to help with the administration of pension schemes, in particular around the new forms and Pension Schemes Online.
Many compulsory purchase annuities have built up "surpluses" because of the imposition of HMRC (Inland Revenue) limits as described in PN 9.1.These limits ceased to apply from 6 April 2006 with the introduction of the new tax regime for pensions. The question then arises as to what use these “surplus” funds can be put after 5 April 2006.
We haven't included anything in the RPSM guidance on this matter because these pre- A-Day compulsory purchase annuities are not registered pension schemes and are "regulated" through section 161, Finance Act 2004 and associated regulations. In law, the "surplus" funds belong to the insurance company and so it is down to the insurance company to decide how it wishes to deal with the "surplus". Many will wish to pass the monies on for the benefit of the annuitant and there are several options for doing this.
The "surplus" cannot be treated as arrears of annuity income from previous (pre- 6 April 2006) years. The member was not entitled to the money before A-Day because the limits on benefits continued to fully apply until that day, so the "surplus" does not represent unpaid pre-A-Day income, but merely a notional amount based on what could have been paid if circumstances and entitlement had been different.
There are however a number of possible options for dealing with the "surplus" in the post-A Day period including:-
On the last point, it will be down to the individual provider to determine whether this is practically possible, but there is nothing under the Finance Act 2004 tax rules that would prevent this. As long as this was not a new, separate lifetime annuity, and it still satisfied the requirements for a lifetime annuity in paragraph 3 of Schedule 28, Finance Act 2004, this would be neither a BCE nor an unauthorised payment. Of course, under normal post-A Day conditions, it will not be possible to add new money to increase an existing lifetime annuity without creating a new lifetime annuity and consequently a BCE4.
The new tax regime allows for a scheme pension, an annuity or alternatively secured pension to continue to be paid after the member’s death (to any person) for a period of up to 10 years starting from the date the member first became entitled to the pension (Pension Rule 2 in section 165, Finance Act 2004 refers). The new legislation refers to this sort of facility as a “term certain pension” and in character, it is similar to a “guaranteed pension” which was available under the pre- 6 April 2006 tax regime. But whereas under the previous tax regime if the guarantee did not exceed 5 years, the remaining instalments of pension could be commuted to a lump sum (paragraph 12.10 of Practice Notes (IR12) refers), under the new tax regime this is not possible (although see below where the guaranteed pension was payable to the member before 6th April 2006).
In the new tax regime, if the member dies within the “term certain period” (whatever its duration), the pension must generally continue to be paid for the remainder of that period (see paragraphs 2(3)(a) and 2(6) Part 1, Schedule 28, Finance Act 2004 and RPSM09101280). The cessation of the pension during the period over which it was payable may generate an unauthorised payment charge (see paragraph 2A of Schedule 28 and RPSM09101580). This requirement to continue paying the remaining instalments of pension due until the end of the “term certain” period means, therefore, that they cannot be commuted into a lump sum.
But it is nevertheless possible for a registered pension scheme to provide instead of or, in addition to the “term certain” pension, a separate lump sum death benefit. There are a number of ways such provision may be made and examples of these are set out in RPSM10105130.
Such a lump sum can, if desired, be expressed in similar terms to the lump sum available under the old five year guarantee which was permissible under the pre 6 April 2006 tax rules so that the lump sum death benefit would be equal to the balance of five years instalments of pension. So, for example, the lump sum could be expressed as sixty times the monthly instalments of the scheme pension/annuity etc minus the payments made to the date of death. A lump sum paid on this basis would constitute a defined benefits lump sum death benefit, providing the terms of paragraph 13, Part 2, Schedule 29, Finance Act 2004 were met - see RPSM10105110. Such a lump sum would be tax-free up to the deceased member's remaining available lifetime allowance.
Schemes with a pre-A-day provision for pension guarantees not exceeding 5 years that have pensions commencing after 5th April 2006, must consider whether their rules promise the continuation of pension to the end of a certain term. If they do, then as explained above, on the death of the member within that 5 year period, a commutation of the remaining instalments of pension into a lump sum will not be an authorised payment in the new tax regime. The pension must continue to be paid until the end of the 5 year period but a lump sum may be paid in addition as explained above .
A defined benefits lump sum death benefit can only be paid in respect of a defined benefits arrangement (paragraph 13(b), Part 2, Schedule 29, Finance Act 2004) and so could not be paid from a money purchase (defined contribution) arrangement. However, there is no reason why someone with pension benefits provided from a money purchase arrangement should not have a separate defined benefits arrangement within the same scheme, providing a defined benefits lump sum death benefit.
Pensions that commenced before 6th April 2006 and being paid from an occupational scheme are protected by paragraph 36 of Schedule 36 Finance Act 2004, so the lump sum from such a 5 year pension guarantee can continue to be paid tax free. Pensions being paid from annuities in the name of the member that commenced before 6th April 2006 may continue to produce a tax free guarantee lump sum as before, providing that it meets the requirements set out in paragraph 36 of Schedule 36, Finance Act 2004.
Some practitioners have expressed concern about what they see as a possibility of an annual allowance charge arising from a transfer from a defined benefits arrangement. So whereas an annual allowance test is meant to be solely on any increase in the accrued rights, the concern is that a transfer itself can generate an increase when it ought to have a neutral effect.
For the avoidance of doubt, what follows (which will be included in the RPSM guidance at the next opportunity) sets out how we interpret the relevant provisions. The matter is covered in sections 234 and 236 Finance Act 2004. The annual allowance test is by reference to the opening and closing values in a pension input period. In a defined benefits arrangement, both the opening value and closing value are always calculated by a deemed entitlement to the accrued rights. Where all the accrued rights are transferred out, the closing value will otherwise be nil. But sections 236(4) and (5) apply to provide an adjustment to bring back in the transfer value. Consequently, the deemed entitlement test for the closing value again becomes 10 times what the pension entitlement (and any separate lump sum) would have been. In this way, the transfer is itself neutral in arriving at a pension input amount, and the legislation then identifies any genuine increase in the accrued rights which may have arisen between the opening value and the transfer. So it is only an increase in the accrual of rights under the scheme which is tested against the annual allowance.
When it comes to the registered pension scheme which has received a transfer and which has a defined benefit arrangement, sections 236(6) and (7) adjust the closing value such that the deemed pension entitlement derived from the transfer is removed from the closing value. Again, the effect is that the transfer has a neutral effect on quantifying the pension input amount.
We are also aware that where bulk transfers occur in defined benefits arrangements, it is not always possible to readily attribute a value to the accrued rights transferred relating to each member. The above approach means that, in practice, it is not essential to attribute such a value. It will be sufficient to express the closing value as 10 times the deemed pension entitlement based on the accrued rights represented by the transfer value. This will ensure that, in the transferring scheme, the adjustment to the closing value and the deemed pension entitlement used in calculating the closing value both account for the transfer value.
A similar approach should be used in cash balance arrangements under sections 230 and 232. For other money purchase arrangements, the annual allowance test is made by reference to contributions only, so transfer values will not in any event affect a pension input amount. So where a transfer is made from a registered pension scheme with a defined benefits arrangement to a registered scheme with an other money purchase arrangement, an adjustment is made to the closing value of the transferring scheme but no adjustment is made in the receiving scheme.
Where rights are transferred from Scheme A to Scheme B and
there is a test to determine whether enhanced protection should continue after the transfer has been made.
The test, under paragraph 15(2) of Schedule 36 Finance Act 2004 compares the actual value of the sums and assets transferred from Scheme A with the appropriate limit value of the rights before the transfer. The appropriate limit value will be the value of the defined benefits or cash balance rights on 5 April 2006 up-rated either by indexation or by a re-calculation of pensionable earnings.
Where the value of the transfer exceeds the appropriate limit relevant benefit accrual will occur and enhanced protection will be lost. If an individual has defined benefits or cash balance rights in more than one arrangement for an employment the test for relevant benefit accrual will be made by comparing the aggregate value of such transfers plus the value of all benefits paid from the arrangements with the appropriate limit value for the rights held in the arrangements.
We are conscious of the pressures on the industry and data vendors to ensure that automated systems are in place to make calculations on a quarter-up basis for the valuation of London quoted shares. Therefore we are willing to accept the following two alternative valuation methods for a temporary period of up to 6 months – i.e. until 5 October 2006:
1) Bid price; or
2) Mid-price minus 1%
One method should be used consistently, rather than a mixture of the two. We remain of the view that section 272(3) of TCGA92, adopted in FA 2004 as the valuation basis for London quoted shares, is the most appropriate calculation method to apply. We are allowing the above temporary approach for a period of up to 6 months from A-day for the industry to make the necessary changes in order to comply with the quarter-up calculation method and we will expect that that those changes are made within the period given.
This is not applicable to unquoted shares.
We have had a number of questions about the roles of authorised and unauthorised Practitioners.
The terms authorised and unauthorised only relate to the providing of information by HMRC (which includes viewing on Pension Schemes Online) to a practitioner. HMRC cannot provide information to a practitioner about a registered pension scheme (this includes matters relating to Pre A-Day such as requests for copies of old approval letters) unless it has authority from the Scheme Administrator of that registered pension scheme. To provide information without this authority would be a disclosure and an offence under Section 18 of the Revenue & Customs Act 2005.
If the Scheme Administrator wishes HMRC to correspond with a Practitioner about their scheme, then we will need to have the Scheme Administrator’s authority. The Scheme Administrator can do this using Pension Schemes Online or on form APSS 150 (PDF 65K).
The terms unauthorised and authorised Practitioner do not apply to the submission of information to HMRC. HMRC does not require authority from a Scheme Administrator of a registered pension scheme to accept information submitted on their behalf by a Practitioner.
If a Practitioner is filing online one of the following on behalf of the Scheme Administrator of a registered pension scheme then they will be required to make a declaration before the submission can be accepted by HMRC. This declaration is simply to confirm that the Scheme Administrator named in the submission has approved (a) the content of the return/report, and (b) its submission.
During the run up to A-Day, APSS undertook a pre-registration exercise to enable Scheme Administrators to pre-register for the online service, Pension Schemes Online. This exercise ended on 17 March when the information we received was captured onto the system. APSS is still receiving these forms even though the Pension Schemes Online service is now available. These forms should no longer be used.
Scheme Administrators wishing to pre-register and ‘Add’ themselves to their schemes should use Pension Schemes Online. If Pension Schemes Online is unavailable they should complete form APSS 161 (PDF 60K) to pre-register as a Scheme Administrator and APSS 151 (PDF 49K) to Add themselves to each of their schemes. If a scheme has more than one Scheme Administrator, second and subsequent administrators need to be associated using form APSS 154 (PDF 60K).
From 31 May 2006, APSS will no longer accept either pre-registration forms or PS 252’s, unless the PS 252 accompanies an application for approval and is received on or before 30th June 2006.
Our Pension Schemes Online service lets you add a Scheme Administrator for contract-type schemes but currently only accepts up to 30 characters for the policy or contract number. If your policy or contract number is more than 30 characters, please include the last 30 characters only. This will allow successful submission and enable you to identify the particular policy or contract. After the July IT release this will be updated, so that you will be able to enter 35 characters as suggested on screen.
The ‘Cease Scheme Administrator’ function will also be added to the online service in the July IT release. You can however currently perform this task by downloading form APSS 160 from the web site and submitting it to APSS. [Link removed Oct 2007]
Scheme Administrators and Practitioners can advise HMRC that their scheme details need to be amended by submitting an APSS 152 form to APSS with the details of the change.
As the functionality is not yet available to reflect this on Pension Schemes Online, we are currently unable to make the relevant changes. We are retaining the forms and will make the required changes from July when the functionality becomes available. In the meantime, please note we are unable to send out acknowledgements for these forms.
Alternatively, Schemes Administrators and Practitioners can make the amendments online from July.
The first quarter for which the Accounting for Tax (AFT) return applies ends on 30 June. The paper version of the AFT return will be available to download and print as a pdf file (APSS 302) from 1 July, and the ability to file it online will become available shortly after this as part of the July IT release.
There is currently a draft AFT (PDF 178) (now removed) available on the website so users can see the content of the return. We do not anticipate any changes being made to this form prior to its first use on 1 July 2006.
Further details on the AFT and payment of any tax due will be published in the next newsletter.
If you want to submit the AFT online and you are not yet registered to use Pension Schemes Online you should register as soon as possible. This can be done online following the link on the left hand side of the front page of the HMRC website.
After completing the pre-registration process, you will be sent through the post your Scheme Administration or Practitioner ID. To ensure it reaches the correct individual as quickly as possible, you should include a contact name within the address field on the pre-registration form. Once the registration has been completed, you can if you wish amend or remove this name using the ‘amend user details’ link on Pension Schemes Online.
We are currently updating RPSM to tidy up hyperlinks and to reflect recent secondary legislation. We will also include any additional guidance needed as a result of the enacted version of the Finance no.2 Bill. The revised version of RPSM will be published as soon as possible after Royal Assent.
In the meantime, a supplement to Chapter 4 (Taxation) Technical Pages RPSM04102020+ covering authorised surplus payments was published on 11 May as a printable version.
If you have any questions about anything to do with tax rules for pensions and you cannot find the answer in the Registered Pension Schemes Manual, you can contact us by email, phone or write to us using the details found on our contact page.