Monthly Archives: January 2018

VAT: Disclosure of Avoidance Schemes – new rules

By   January 15, 2018

What needs to be disclosed, and by whom?

The Disclosure of Avoidance Schemes (VAT & Other Indirect Taxes) rules came into effect this month. HMRC Notice 799 sets out the new disclosure rules which are wider than the previous rules and now apply to all indirect taxes (ie; Insurance Premium Tax, General betting Duty, Pool Betting Duty, Remote Gaming Duty, Machine Games Duty, Gaming Duty, Lottery Duty, Bingo Duty, Air Passenger Duty, Hydrocarbon Oils Duty, Tobacco Products Duty, Duties on Spirits, Beer, Wine, Made-Wine and Cider, Soft Drinks Industry Levy, Aggregates Levy, Landfill Tax, Climate Change Levy and Customs Duties) – not just VAT.

The Notice contains information on what to do if a person promotes or uses arrangements (including any scheme, transaction or series of transactions) from 1 January 2018 that will, or are intended to, provide the user with a VAT or other indirect tax advantage when compared to adopting a different course of action.

The information includes:

  • What arrangements must be disclosed to HMRC
  • Who has responsibility to disclose notifiable proposals or arrangements to HMRC
  • Deciding who is a promoter of notifiable proposals or arrangements
  • Deciding who is an introducer of a notifiable proposal
  • What the obligations are as a promoter of notifiable proposals or arrangements
  • What the obligations are as an introducer of a notifiable proposal
  • What the obligations are as a user of notifiable arrangements including when there is a responsibility to disclose
  • How to make a disclosure to HMRC

It is crucially important to establish who is required to notify HMRC and of what. The rules do not just cover tax advisers but may also affect businesses directly.  

The effect of disclosure

A disclosure under the new rules has no effect on the tax position of any person who uses the arrangements. However, a disclosed arrangement may be challenged by HMRC or may be rendered ineffective by legislative action by Parliament.

Please contact us if you think any of the above affects you.

VAT: How well did HMRC perform?

By   January 15, 2018

The Public Accounts Committee has published its report on HMRC’s Performance in 2016–17. Things are far from rosy…

The report highlights concerns for customer service from growing challenges facing HMRC. It states that HMRC is undertaking 15 major transformation programmes and comments that “With Brexit it faces additional pressures and is having to consider how to change priorities. It needs to be clear about what it will do differently, or not do, and what the impact will be on customer service.”

“Together with the Treasury, HMRC has to make tough decisions on how it allocates limited resources to its operations to increase tax revenues, protect performance levels, prioritise its transformation and estate programmes, and invest in measures to tackle tax evasion, fraud and error.”

Comments from the Committee Chair, Meg Hillier MP do not hold back:

“HMRC’s transformation programme would have been less risky had it not attempted to do everything at the same time. What was already a precarious high-wire act is now being battered by the winds of Brexit, with potentially catastrophic consequences. Action arising from allegations in the so-called Paradise Papers could also significantly increase the authority’s workload.  HMRC accepts something has to give and it now faces difficult decisions on how best to use its limited resources—decisions that must give full consideration to the needs of all taxpayers. In particular we are concerned about the effect on people simply trying to pay their fair share. HMRC’s customer service has improved on the appalling levels of recent years but its claims about call-answering times don’t stack up. Any new deterioration would be wholly unacceptable.”

There are concerns too about the impact of changes in the welfare system, which could increase the financial risks faced by vulnerable Tax Credits claimants. At the same time, the level of Tax Credits fraud and error has gone up and is only going to get worse.

These are serious, pressing challenges for HMRC, requiring swift and coordinated action in Government. As a matter of urgency the authority must set out a coherent plan and demonstrate it is fit for the future.”

Conclusions and recommendations

Specifically, there are eight conclusions and recommendations which are summarised below:

  • The ‘Paradise Papers’ leak suggests potentially serious and extensive allegations of tax evasion and avoidance.

Recommendation: HMRC should obtain the information from the ‘Paradise Papers’ as soon as possible, and report back to the Committee by March 2018 to set out its response, including any additional revenue likely to be at stake.

  • HMRC is unclear how far it can close the tax gap with existing resources.

Recommendation: HMRC should set target levels for reduction of the tax gap, including for the SME sector, and set out how HMRC will be more responsive to emerging risks.

  • HMRC’s transformation programme is not deliverable as planned due to unrealistic assumptions, and increased pressure from the additional workload caused by Brexit.

Recommendation: HMRC should report back to the Committee by March 2018 with clear plans on how it will manage the many challenges it faces due to Brexit and its ongoing transformation programmes and update its original assumptions and amend its forecasts for its transformation programme, particularly those concerning customer demand for its various services.

  • The committee is not convinced that HMRC will obtain value for money from long-term leases, without break clauses, for its new estate of 13 large regional centres.

Recommendation: HMRC and the Government Property Unit should use their strong negotiating position to ensure they gain sufficient flexibility in the terms for the four regional centre leases yet to be signed, and should examine ways to build in greater flexibility from the eight regional centre leases already signed.

  • The committee recognises the improvements in customer service since the unacceptable levels of 2015−16, but are concerned about HMRC’s ability to maintain this level of performance.

Recommendation: HMRC should ensure it continues to deliver a consistent and reasonable level of service to all its customers. The committee will be monitoring performance and will return to this issue.

  • The average time it takes for customers to speak to an adviser when they call is longer than HMRC claims.

Recommendation: HMRC should introduce a new set of measures that better reflect the actual experience of customers. Automated telephony time should be included within the five minute speed to answer target.

  • Vulnerable people receiving Tax Credits are at increased risk of financial problems as they transfer to Universal Credit.

Recommendation: HMRC to report back to the committee by March 2018 to explain how it will take care of the interests of vulnerable people receiving Tax Credits. This should include how it will work with DWP to manage claimants’ transition to Universal Credit, and protect them against aggressive departmental activity to reclaim overpayments due to error and fraud.

  • We are alarmed to hear that the level of Tax Credits error and fraud has risen and is only going to get worse.

Recommendation: HMRC should set out its strategy for tackling Tax Credits error and fraud, given the additional risks posed by transfer to Universal Credit, including a cost-benefit analysis of its approach.

From a VAT perspective, it does seem that customer service has slightly improved from what was a completely awful level the year before. Unfortunately, this service is still unacceptable and frankly, I also find that the time waiting for a telephone call to be answered as stated by HMRC is highly dubious. Personal experience insists that they still have a great deal of work to do in this area and this is reinforced by discussions with other advisers in all areas of tax.

 

VAT – What records must be kept by a business?

By   January 9, 2018

Requirements for VAT records by taxable persons

I thought that it may be useful to round-up all the record-keeping requirements in one place and focus on what HMRC want to see. It is a good time to review record-keeping requirements as Making Tax Digital (MTD) is on the horizon. More on MTD in a later article.

General requirements

Every taxable person must keep such records as HMRC may require. Specifically, every taxable person must, for the purposes of accounting for VAT, keep the following records:

  • business and accounting records
  • VAT account
  • copies of all VAT invoices issued
  • VAT invoices received
  • certificates issued under provisions relating to fiscal or other warehouse regimes
  • documentation relating to acquisitions of any goods from other EC countries
  • copy documentation issued, and documentation received, relating to the transfer, dispatch or transport of goods by him to other EU countries
  • documentation relating to imports and exports
  • credit notes, debit notes and other documents which evidence an increase or decrease in consideration that are received, and copies of such documents issued
  • copy of any self-billing agreement to which the business is a party
  • where the business is the customer party to a self-billing agreement, the name, address and VAT registration number of each supplier with whom the business has entered into a self-billing agreement

Additionally

HMRC may supplement the above provisions by a Notice published by them for that purpose. They supplement the statutory requirements and have legal force.

Business records include, in addition to specific items listed above, orders and delivery notes, relevant business correspondence, purchases and sales books, cash books and other account books, records of daily takings such as till rolls, annual accounts, including trading and profit and loss accounts and bank statements and paying-in slips.

Unless the business mainly involves the supply of goods and services direct to the public and less detailed VAT invoices are issued, all VAT invoices must also be retained. Cash and carry wholesalers must keep all till rolls and product code lists.

Records must be kept of all taxable goods and services received or supplied in the course of business (standard and zero-rated), together with any exempt supplies, gifts or loans of goods, taxable self-supplies and any goods acquired or produced in the course of business which are put to private or other non-business use.

All records must be kept up to date and be in sufficient detail to allow calculation of VAT. They do not have to be kept in any set way but must be in a form which will enable HMRC officers to check easily the figures on the VAT return. Records must be readily available to HMRC officers on request. If a taxable person has more than one place of business, a list of all branches must be kept at the principal place of business.

Comprehensive records

In addition, we always advise businesses to retain full information of certain calculations such as; partial exemption, the Capital Goods Scheme, margin schemes, TOMS, business/non-business, mileage and subsistence claims, promotional schemes, vouchers, discounts, location of overseas customers, MOSS, and distance selling amongst other records. The aim is to ensure that any inspector is satisfied with the records and that any information required is readily available. This avoids delays, misunderstandings and unnecessary enquiries which may lead to assessments and penalties.

If you have any doubts that your business records are sufficient, please contact us.

VAT – There is no such thing as a free lunch

By   January 3, 2018

Latest from the courts

In the Court of Appeal case of ING Intermediate Holdings Ltd the issue was whether the provision of “free” banking actually constituted a supply for VAT purposes.

Background

The appeal concerned the recoverability of input tax. ING wished to recover (via deduction against the outputs of a separate investment business) a proportion of VAT expenses incurred in connection with a “deposit-taking” business. ING contended that this activity did not involve any VATable supply. HMRC contended, and did so successfully before both prior tribunals, that it is more than a deposit-taking business and involved the provision of banking services.

The issue

The relevant services were supplied to the public, and the user of the services were not charged a fee. Consequently, the essential issue was; whether the “free” banking services were provided for consideration and, if so, how that consideration ought to be quantified for VAT purposes. If there was a consideration, there was a supply, and that supply would be exempt; thus not providing a right to recovery of input tax for the appellant.

Technical

There is no definition of consideration in either the EC Principal VAT Directive or the VAT Act 1994. In the UK, the meaning was originally taken from contract law, but the European Court of Justice (ECJ) has confirmed that the term is to be given the Community meaning and is not to be variously interpreted by Member States. The Community definition used in ECJ cases is taken from the EC 2nd VAT Directive Annex A13 as follows even though this Directive is no longer in force:

“…the expression “consideration” means everything received in return for the supply of goods or the provision of services, including incidental expenses (packing, transport, insurance etc), that is to say not only the cash amounts charged but also, for example, the value of the goods received in exchange or, in the case of goods or services supplied by order of a public authority, the amount of the compensation received.”

NB: In order for there to be consideration, it must be able to be quantifiable and able to be expressed in monetary terms.

Decision

The CA decided that although there was no distinct charge to the users of the service, there was a supply of services for a consideration. That consideration was the difference between what the customer obtained from the relevant account, and what he could have obtained from an account which was not free, but provided better returns (the interest rate offered must have contained some deduction for the services provided). This was capable of being expressed in monetary terms (although it is interesting to note that the CA stated that it would be undesirable to say which method should be applied, although the court was “entirely satisfied” that it could be done).

Consequently there was a for VAT purposes and ING’s appeal was therefore dismissed.

Commentary

HMRC quite often argue that there is a supply when in fact, there is no supply. However, they did have a decent argument in this case and I understand that they are likely to apply this to a number of other long running disputes.  Please contact us if you consider that this case could affect your business or your client’s business.