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Adrian Mooy & Co

Welcome to our home page. We are a small firm of Chartered Certified Accountants and tax advisors in Derby. We help businesses like yours grow and be more profitable.  For a friendly service covering audit, tax, accounts, self assessment, VAT & payroll please contact us.

 

How can we help you?

We offer a traditional personal service and welcome new clients.

We specialise in cloud-based accounting solutions. With the power of cloud accounting in your hands, you can access accurate real-time data on the go, accept instant payments and even automate repetitive tasks like invoicing. Fast, easy, touch-of-a-button accounting is the future.

From start-up to exit and everything in-between - whether you’re struggling with company formation, bookkeeping, or annual accounts and taxation, you can count on us at every step of your business’s journey.

If you are looking for a Derby accountant then please contact us.

  • Quality checked firm - awarded the prestigious ACCA Quality Checked mark
  • Cloud-based accounting solutions
  • Tax solutions to help you keep more of your income
  • Transparent affordable pricing
  • Free initial interview
Member of the Association of Chartered Certified Accountants
Association of Chartered Certified Accountants quality checked

Blog ... our latest news

02 Dec

2016

Taxpayers who have not told HMRC about all their income and gains can make a disclosure online. It is always better to tell HMRC rather than waiting for HMRC to come to you. Even with the best of intentions, it is easy to make mistakes.   Read >

Tax Planning for individuals

Tax Planning for Individuals

Successful individual tax planning requires careful attention across a wide range of areas and time frames.

Tax Planning for small business

Tax Planning for Small Business

Effective tax-saving strategies for small businesses operating in a tough economic climate.

Planning your financial future

Planning your Financial Future

In today's complex financial and business world everyone needs reliable and professional help in managing their finances.

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Services

Web-based accounting

Xero is a web-based accounting system designed with the needs of small business owners in mind.

 

It can automatically connect to your bank and download your bank statements. From there it’s simple to tell Xero what transactions relate to and once told it remembers and looks out for similar transactions. This saves time and makes keeping your accounts up to date easier.

 

xero accounting softwareLog in from any web browser. As your accountant we are also able to log in and provide help and advice when needed.

Group Xero presentation

Xero makes keeping your accounts up to date easier.

Our process for delivering tax accounting vat self assessment and payroll services

Confirm your expectations

Our aim is  to help you maximise your business potential and we tailor our service to meet your requirements and agree a timetable for delivering them.

 

Our Process

Understand your needs

Firstly we listen and gain an understanding of your business and what you are aiming to achieve.

Actively communicate

Communication is important to the success of any commercial venture. It is therefore a vital part of our work with you, sharing the knowledge and ideas that help you to realise your ambitions.

Build a relationship

Success in business is based around relationships and trust. Our objective is to develop and build strong relationships with our clients, based on two way trust and respect.

Arrow indicating direction of process flow

Continuous improvement

We seek your opinions on the service we provide and respond to feedback in order to upgrade and improve what we do.

Accountants spreadsheet and calculator

Get in touch for a free initial interview.

Testimonials

First class! Super accountant! We have been with Adrian Mooy & Co since 1994. They provide a prompt, accurate & reliable service. There is always someone at the end of the phone to help and advise us. They have always delivered and we are more than happy to recommend them.    Ian Cannon - Link a Bord Ltd

Straightforward and easy to deal with Adrian Mooy & Co provide an efficient, friendly and professional service - payroll, tax returns, annual accounts and VAT returns are always done on time.    Eddie Morris

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Helpsheets

 

Business expenses

Being savvy with your expenses is a large part of running a successful business, regardless of its size. Claiming expenses is a simple way to keep your business tax efficient – it reduces your profit, which in turn reduces your tax payments. By claiming every allowable expense you’re making sure you don’t pay a penny more in tax than you have to.

 

For more information about exactly what expenses you can claim, see our helpsheets.

Accountant preparing tax return
  • Disincorporation relief

    Disincorporation relief

    Recent changes to the tax treatment of dividends may lead people to question whether it may be better to run their business as an unincorporated entity, such as a sole trader or partnership, rather than as a company.

    For those thinking of disincorporating, an element of relief is available for a limited period.

    Nature of the relief

    Disincorporation relief is available when a company transfers certain assets to its shareholders who then continue to run the business in an unincorporated form. In the absence of the relief, transfers between the company and its shareholders would normally be treated as transfers between connected persons so that tax is calculated by reference to the market value regardless of the amount actually paid. The relief allows qualifying assets to be transferred at the lower of the cost and market value (other than goodwill amortised under the intangibles regime, which is transferred at the lower of the tax written down value and the market value). The transfer value becomes the acquirer’s base cost for CGT purposes.

    Tip

    The relief saves corporation tax on chargeable gains on disincorporation.

    Trap

    The relief defers rather than saves cost, as it lowers the recipient’s base cost.

    Qualifying assets

    The relief only applies in relation to qualifying assets, which are land and goodwill. Other assets, such as stock, debtors, etc. are outside the scope of the relief.

    Conditions

    Availability of the relief is contingent on the following conditions being met:

    •   the business is transferred as a going concern;
    •   all assets (or all assets except cash) are transferred;
    •   the total market value of qualifying assets (land and goodwill) at the time of the transfer must be less than £100,000;
    •   the shareholders to whom the business is transferred must be individuals;
    •   the shareholders must have held shares in the company for 12 months before the transfer.

    Transfer window

    Relief is only available if the transfer takes place in the transfer window, which runs from 1 April 2013 to 31 March 2018.

    Claiming relief

    The relief must be claimed jointly by the company and all the shareholders who are receiving assets.

    Partner note: FA 2013, ss. 58 – 61; www.gov.uk/guidance/corporation-tax-disincorporation-relief.

  • Gifting Property

    The inheritance tax (IHT) regime includes various useful reliefs and exemptions.

    Perhaps one of the less well known IHT exemptions relates to the maintenance of family members. This applies broadly to the following:

    ▪ maintenance of the spouse (or civil partner), or former spouse (e.g. on divorce);

    ▪ maintenance, etc., of the transferor’s children;

    ▪ maintenance, etc., of other people’s children;

    ▪ care or maintenance of a dependent relative; or

    ▪ maintenance, etc., of the transferor’s illegitimate children.

    The exemption is subject to certain conditions in each case (see IHTA 1984, s 11).

     

    Is that ‘reasonable’?

    For example, the exemption in respect of ‘dependent relatives’ (as defined) applies to the extent that the disposition represents a reasonable provision for care and maintenance of the relative. But what is a ‘reasonable provision’?

     

    This point was considered in McKelvey (Personal Representative of McKelvey Deceased) v Revenue and Customs Commissioners [2008] SpC 694. In that case, the deceased (D) was a spinster who lived with her widowed mother (M), who was 85 years old, blind and in poor health. D was diagnosed with terminal cancer, and in 2003 gave away two houses she owned to M. D died in 2005, and M died in 2007.

     

    HM Revenue and Customs (HMRC) sought to charge IHT on the value of D’s gift of the houses to M of £169,000. D’s executor appealed, on the grounds that the gifts were exempt transfers, being a reasonable provision for the care and maintenance of a dependent relative (within s 11(3)). The executor contended that D gave the houses to M so that they could be sold to pay for nursing care. The executor’s appeal was allowed in part. The Special Commissioner held that it was reasonable for D to assume that M would need residential nursing care, and concluded that ‘reasonable provision at the time the transfers were made amounted in all to £140,500’. This amount qualified for exemption under s 11 (the balance of £28,500 was a chargeable transfer).

     

    HMRC’s guidance on what represents ‘reasonable’ provision for the care or maintenance of a dependent relative (at IHTM04177) indicates that regard needs to be given to the financial and other circumstances of the transferor and the relative and the degree of incapacity of infirmity of the latter. HMRC will enquire into the recipient’s ‘financial incapacity’, and will refuse the exemption to the extent that the recipient had sufficient income or capital to make adequate provision for their own maintenance (IHTM04179).

     

    Deathbed planning

    The exemption may be potentially useful if (for example) the transferor’s life expectancy is less than the seven year period necessary for a potentially exempt transfer to become exempt, or the normal two-year ownership period normally required for business property relief.

     

  • Travel Expenses - Intermediaries: The New Rules

    The Finance Bill 2016 introduces new rules which restrict the ability of workers providing their services through an intermediary to claim a deduction for the cost of travelling between home and work.

    Employees are not allowed a deduction for home to work travel costs (ordinary commuting) and the new rules deny relief in certain situations to workers working through an intermediary for travel. However it should be noted that the rules do not affect all workers providing their services through an intermediary - a deduction for home-to-work travel is only denied if certain conditions are met.

    Who is affected? - The new rules apply where a worker:

    • personally provides services to another person;
    • is employed through an employment intermediary; and
    • is under the supervision, direction or control of any person in the manner in which they undertake their work.

    Employment intermediary - The rules apply where the worker does not provide his or her services direct to the client, but those services are provided through an intermediary. Thus, the intermediary provides an additional layer between the worker and the client. The intermediary may be a psc, an umbrella company, an employment agency or similar.

    Supervision, direction and control -  The 'supervision direction and control' test is critical in determining whether a worker who provides services through an intermediary is able to claim a deduction for the cost of travel between home and work. The new rules only bite where the worker is subject to, or is subject to the right of 'supervision, direction and control' of any person as to the manner in which the worker provides his or her services.

    The 'supervision, direction and control' test is met if there is a right to supervise, direct or control, even if there is no actual supervision, direction or control. The supervision, direction or control can be provided by 'any person'. It does not have to be provided by the client - the test is met if it is provided by an agency, a project manager, a consultant, a manager, etc.

    The worker only needs to meet one part of the test for it to apply.

    Supervision - The 'supervision' element of the test is met if someone watches or oversees how the worker provides his or her services or checks the work that the worker is doing to make sure that it is done correctly or to the right standard.

    Direction - Direction over the manner in which a worker provides his or her services means providing a worker with instructions, guidance or advice so that they do their work in a particular way.

    Control - A person is subject to control as to how they do their work if another person tells or instructs them how to do the work. It is the right of a person to say to the worker 'don’t do it like that' or 'do it like this'.

    A worker who provides personal services through an intermediary is still able to claim a deduction for home to work travel if they are not subject to supervision, direction & control.

  • Trade or Hobby

    Many people have hobbies that generate money, such as buying and selling items at car boot sales or on eBay. Some individuals seek to claim that an activity is a taxable trade, rather than a non-taxable hobby so that they can claim relief for trading losses against other income.

    Is there a trade?

    HMRC examine loss relief claims and may contend that there is no trade. If there is no trade, there can be no trading loss. There is very little guidance on the meaning of 'trade' in the tax legislation and the lack of guidance has resulted in case law over the years.

    The 'badges of trade’ are helpful in determining what constitutes a trade. HMRC guidance lists the following:

    • profit-seeking motive;
    • the number of transactions;
    • the nature of the asset;
    • existence of similar trading transactions or interests;
    • changes to the asset;
    • the way the sale was carried out;
    • the source of finance;
    • interval of time between purchase and sale; and
    • method of acquisition.

    However, HMRC guidance also urges caution about relying too heavily on the badges of trade.

    Is it commercial?

    Even if it is accepted that there is a trade, HMRC will sometimes argue that the trade is not being undertaken on a commercial basis, and/or with a view to the realisation of profits of the trade. Sideways loss relief is not available in those circumstances.

    A number of recent cases have considered whether a trade was carried on, and if so, whether sideways loss relief restriction applied:

    • Ali v Revenue & Customs [2016] - An individual (also a pharmacy business owner) who bought and sold listed shares with a view to profiting from short-term price movements was held to be carrying on a trade and that it was commercial and so loss relief restriction did not apply;
    • Anthony & Anor (Re TJ Charters LLP) v Revenue & Customs [2016] - A trade of chartering a vessel for day charters was held not to be commercial and the trade was not carried on with a view to the realisation of profits;
    • Patel v Revenue & Customs [2015] - The tribunal held that an individual’s separate trades of supplying ingredients and running cookery workshops and selling art and photographic images of Indian culture never got beyond being a hobby, and sideways loss relief was denied; and
    • McMorris v Revenue & Customs [2014] - An individual’s activities in purchasing a half share of a racehorse and paying towards its training costs with a view to selling the horse later at a profit did not amount to a trade, and was not operated on a commercial basis for sideways loss relief purposes.

    The government announced in Budget 2016 a new allowance of £1,000 for trading and property income from April 2017. This will be helpful for those whose trading activities are on the smallest scale.

  • Cars and Benefits-in-Kind

    Cars and leasing arrangements

    The rules for car benefits have been problematic for employers. The days when a company car was a 'perk' are long gone for most employees except for the most fuel-efficient cars the benefit-in-kind charge is based on an amount far higher than the real benefit that the employee gets from it. It has become more common for employees to buy their own cars and claim back a mileage allowance from the employer. But employees then miss out on the buying power and freedom from hassle given by employer fleet management, and employers fear that the employees will not buy cars that project the right image when they visit clients.

    So an alternative approach has been for the employer to be responsible for a fleet of cars that are leased to the employees. The employee has a commercially calculated, all-inclusive, lease payment to include servicing, repairs, etc., deducted directly from net pay, and pays for fuel. The employer reimburses the employee at the HMRC approved rates for the business mileage the employee reports. The net result will normally be much less expensive for the employee than having a company car and the accompanying benefit-in-kind charge.

    Unfortunately, HMRC did not like this approach, and challenged it in a case, Apollo Fuels v HMRC [2016]. The history of this case is unusual, in that the taxpayer won all the way through the courts, but for different reasons at each stage. HMRC’s argument was that the benefit-in-kind legislation only required the employer to have provided the car by reason of the employment without a transfer of the property in it for the company car rules to bite. The First-tier Tribunal held that the lease gave the employee some ownership rights, so there was a transfer of the property in the car, and hence no benefit-in-kind charge. The Upper Tribunal disagreed, but said the company car rules were displaced by a

    charge under s 62 on zero. The Court of Appeal, which is where the case has recently been decided, held that the arrangements were commercial and did not, on a purposive construction, give rise to a benefit-in-kind at all.

    While the taxpayer has therefore succeeded three times, the victory won't hold in the longer term. Finance Bill 2016 includes provisions to prevent such arguments from succeeding in 2016/17 and subsequent years.

    The legislation affects living accommodation, company cars or vans, and loans. In all three areas wording about 'fair bargain’ is introduced in similar terms. For cars and vans it says: 'In determining for the purposes of this Chapter whether this Chapter applies by virtue of subsection (1) to a car or van made available to an individual it is immaterial whether or not the terms on which the car or van is made available constitute a fair bargain’.  For cars and vans there is an additional provision to deal with any argument that the vehicle is provided for reasons other than employment. This provision deems any car or van that an employer provides to an employee (or member of their family) to have been made available by reason of the employment except in two situations. The first is where the employer is an individual and the vehicle is provided in the normal course of domestic, personal or family relationships, and the second is where the employer runs a vehicle hire business and the vehicle is provided to the employee as a normal member of the public.

    So any future Apollo Fuels type of scheme will be caught because the employer is 'providing' the car, and cannot argue that this is not because of the employment relationship. The first of the only two exceptions will be when, for example, a father employs his daughter in the business, and separately lets her have a car that she can use because she is his daughter. If the daughter is in a job where all the employees get cars, the exception will not apply. The other exception will require the employer to be running a car hire business, but it will not be possible to argue that the company fleet of lease cars is such a business. In order to meet the rules for the exception, not only would the vehicles have to be made available to the public for hire, they would also have to be hired by the employee acting as an ordinary member of the public. In other words, an employee of a genuine car hire company does not have to go to a competitor to hire a car when he needs one for a few months for fear of triggering a benefit-in-kind charge if he hires one from his employer, but a car hire company cannot use the exception to set up an Apollo Fuels type scheme for its employees.

  • Your Charter & HMRC Enquiries

    Dealing with HM Revenue and Customs (HMRC) is rarely a pleasant task. For example an enquiry by HMRC into a self-employed individual’s tax return and accounts can be a time-consuming, stressful experience for the taxpayer not to mention the financial cost implications (e.g. additional professional fees).

    Answering questions from, and generally interacting with, HMRC officers can be an intimidating experience, particularly during an enquiry. Fortunately, HMRC has a Charter for taxpayers ('Your Charter'). There is a legal requirement for the Charter to '...include standards of behaviour and values to which [HMRC] will aspire when dealing with people in the exercise of their functions’ (CRCA 2005, s 16A(2)).

    'Your Charter' applies to the conduct of HMRC officers during an enquiry, although it is important to appreciate that it applies to HMRC's interactions with taxpayers generally. The Charter was amended in January 2016. The amended version broadly comprises seven taxpayer 'rights':

    1. 'respect you and treat you as honest; 2. provide a helpful, efficient and effective service; 3. be professional and act with integrity; 4. protect your information and respect your privacy; 5. accept that someone else can represent you; 6. deal with complaints quickly and fairly; and 7. tackle those who bend or break the rules.'

    How can it help? - In the context of a tax return enquiry, the rights that taxpayers and agents should monitor in particular are the first and third above; the first in respect of the HMRC officer’s conduct from the outset of the enquiry; and the third in terms of HMRC's approach to the enquiry in general (e.g. helping to keep the practitioner’s professional fees to the client as low as possible).

    HMRC states: 'We'll presume that you’re telling us the truth, unless we have good reason to think otherwise.' However, taxpayers and agents might be forgiven for thinking that HMRC sometimes seem to take the opposite approach.

    For example, in the course of a tax return enquiry, a self-employed individual with a cash-based business (e.g. a café proprietor) might find that HMRC attempt to discredit the accuracy and/or completeness of his accounting records (a practice commonly known as 'breaking the records'), with a possible view to increasing turnover and taxable profits for the year of enquiry (and possibly for other tax years, as well). A respectful reminder by the taxpayer or agent of the Charter standards required of HMRC may sometimes be appropriate.

    Two-way traffic - interestingly, the latest Charter also contains seven 'obligations' (i.e. what HMRC expects from taxpayers), namely: 'be honest and respect our staff; work with us to get things right; find out what you need to do and keep us informed; keep accurate records and protect your information; know what your representative does on your behalf; respond in good time; and take reasonable care to avoid mistakes'.

  • Student Loan Repayments

    Changes to student loan collection from April 2016.

    Repayment of student loans is a shared responsibility between the Student Loans Company (SLC) and HM Revenue and Customs (HMRC). Employers have an obligation to deduct student loan repayments in certain circumstances, and to account for such payments 'in like manner as income tax payable under the Taxes Acts'.

    With effect from 6 April 2016, there are two plan types for student loan repayments:

    • Plan 1 - with a 2016/17 threshold of £17,495 (£1,457/month or £336/week); and
    • Plan 2 - with a 2016/17 threshold of £21,000 (£1,750/month or £403/week).

    Plan 1 loans are pre-September 2012 income contingent student loans, and repayments will start when the £17,495 threshold is reached. Loans taken out post-September 2012 in England and Wales become eligible for repayment when the higher threshold of £21,000 is reached. Previously, these have been repaid outside of the payroll directly to the SLC. From April 2016, they are to be calculated and repaid via deduction from an employer's payroll. So, employers and payrolls must now be capable of coping with both types of plans.

    Broadly, an employer must start making student loan deductions from the next available payday using the correct plan type if any of the following apply:

    • a new employee's P45 shows deductions should continue - the employer will need to ascertain which plan type the employee has;
    • a new employee confirms they are repaying a student loan - again, the employer will need to confirm the plan type;
    • a new employee completes a starter checklist showing they have a student loan -the checklist will tell the employer which plan type to use; or
    • HMRC issues form SL1 (Start Notice), telling the employer which plan type to use.

    Operating issues

    Deductions are rounded down to the nearest pound. Deductions are non-cumulative, and so employers can ignore the question of amounts already deducted by a former employer. HMRC provide tables to assist employers in calculating the deduction each pay day, which (because of rounding) may not be exactly 1/52 of the annual amount.

    Employers are required to collect student loan repayments through the PAYE system by making deductions of 9% from an employee's pay to the extent that earnings exceed the relevant threshold for each plan type, each year (see above).

    Each pay day is looked at separately, and so repayments may vary according to how much the employee has been paid in that week or month. If income falls below the starting limit for that week/month, the employer should not make a deduction.

  • Owe tax to HMRC – take advantage of a campaign

    Taxpayers who have not told HMRC about all their income and gains can make a disclosure online. It is always better to tell HMRC rather than waiting for HMRC to come to you. Even with the best of intentions, it is easy to make mistakes.

    HMRC run various campaigns which encourage people to get their tax affairs up to date in return for more favourable terms.

    Let property campaign

    The let property campaign is open to all residential landlords with undisclosed taxes. This may include:

    • landlords with multiple properties;

    • landlords with single rentals;

    • specialist landlords letting property to a particular type of tenant, such as student lets;

    • holiday lettings;

    • individuals renting out a room in their home under the rent-a-room scheme.

    Those who rent out their home while abroad may also be able to use the scheme.

    Credit card sales campaign

    The credit card sales campaign is a settlement opportunity for individuals and companies who accept credit and debit cards and who have not reported credit and debit card transactions on a tax return. Reduced penalties are offered  for making a disclosure

    Second incomes campaign

    The second incomes campaign is aimed at employed individuals who have additional income which is not taxed through PAYE and which has not been declared to HMRC. Taxpayers making a disclosure under the scheme benefit from reduced penalties.

    Making a disclosure

    An individual who wishes to take advantage of a campaign to tell HMRC about undeclared income and gains, must follow the following procedure:

    The first step is notify HMRC of the intention to make a disclosure under the campaign. This can be done either by filling in the notification form or by calling the relevant campaign helpline. The taxpayer will be given a disclosure reference number (DRN).

    Once HMRC have been notified of the intention to make a disclosure under the campaign, the next stage is to make the disclosure. The disclosure must be made within 90 days of the date on which the notification acknowledgement is received. The DRN must be quoted.

    Once the disclosure is complete, the taxpayer must then complete the declaration. This is an important part of the disclosure and should be taken seriously.

    The taxpayer must make an offer for the full amount owed. The offer, together with HMRC’s acceptance letter, creates a legally binding contract between the taxpayer and HMRC. Letters of offer are included in the disclosure forms, which the landlord or his or her agent must complete.

    HMRC will review the disclosure and if they decide to accept it, an acceptance letter will be sent. In some cases they will undertake further enquiries. It is advisable to co-operate as this will ensure the best possible outcome in terms of penalties.

    Unless HMRC have granted additional time to pay, payment should be made within 90 days of the deadline given on the notification acknowledgement letter. The Payment Reference Number (PRN) should be quoted when making the payment.

  • Overdrawn Directors' Loan Accounts

    Overdrawn Directors' Loan Accounts – Traps to Avoid

    The loans to participators provisions are relatively well-known among affected taxpayers. The legislation imposes a 25% tax charge in respect of loans or advances to participators.

    The tax charge can be prevented on an overdrawn directors loan account to the extent that the 'Ioan' is repaid up to nine months after the end of the company's accounting period in which it is made. There is also relief if the loan is repaid or written off after that period.

    'Bed and breakfasting’

    There are anti-avoidance rules to rules to block 'bed and breakfasting’.

    This practice involves the shareholder repaying the overdrawn loan account balance either just before the end of the accounting period or within the following nine months, so that the 25% tax charge is not due. The shareholder might then withdraw a similar (or greater) amount from the company shortly thereafter.

    lf the anti-avoidance provisions apply, relief from the above tax charge is broadly denied (or withdrawn, if already given). The provisions can apply in the following circumstances:

    •  '30 day' rule - i.e. where, within any 30-day period, loan account repayment(s) of £5,000 or more are made to the close company, and a further amount of £5,000 or more is withdrawn by that person in an accounting period subsequent to the one in which the loan was made; or
    •  'arrangements rule' - i.e. where a loan (e.g. overdrawn Ioan account) is at least £15,000, and at the time of the repayment there are arrangements for replacement withdrawal(s) by that person of at least £5,000, and the withdrawal(s) is subsequently made (at any time after the repayment). 'Arrangements' is considered to have a wide meaning in HMRC's view.

    If 'caught' by either of the above rules, the effect is broadly that the repayment is treated as repaying the 'new' loan(s), rather than the earlier ('old') one(s). Relief from the 25% charge is therefore wholly or partly denied (or withdrawn) in respect of the 'old' loan(s) (i.e. relief will only be potentially available to the extent that the repayment exceeds the 'new' loan(s)).

    Repayments not 'caught'

    However, the above anti-avoidance rules do not apply if the directors' loan account repayment gives rise to an income tax charge on the director shareholder (see below).

    HMRC accepts that repayments can be made via 'book entries' in the company's accounting records, at the date when the book entries are made.

    ...Or are they?

    The most common ways to repay an overdrawn directors' loan account balance in a 'taxable' form is by crediting the loan account with their salary or a bonus from the company. Similarly, a dividend from the company may be credited to the loan account.

  • Joint Property And Form 17

    lt is relatively common for an asset (e.g. an investment property) to be jointly held in the names of a married couple (or civil partners). The general rule is that those individuals are treated for income tax purposes as beneficially entitled to the property income in equal shares.

    For example, Adam and Brenda are married and living together. Adam is a basic rate taxpayer and Brenda pays tax at the higher rate. They jointly own an investment property (i.e. Adam 75%; Brenda 25%). The property rental income is £10,000. Adam and Brenda each pay tax on income of £5,000.

    Splitting income differently

    However, this 50:50 rule is subject to certain exceptions (in ITA 2007, s 836). One important exception is if the individuals make a declaration to HM Revenue and Customs (HMRC) of their unequal beneficial interests (under s 837). This is sometimes called the 'form 17 rule’. It broadly allows a couple with unequal beneficial interests to be taxed on their actual entitlement to income from jointly held property.

    Thus in the above example, following a valid form 17 declaration, Adam would pay tax (at 20%) on rental income of £7,500, and Brenda would pay tax (at 40%) on £2,500. Their overall income tax bill is therefore lower.

    Points to watch

    The form 17 process appears straightforward. However, in practice there are various issues and potential problems, some of which are outlined below.

    1. Husband and wife (or civil partners) should check that they jointly own the property as 'tenants in common'. A form 17 election cannot be made (i.e. the property income cannot be split other than in equal shares) if the couple own the property as 'joint tenants'.

    2. HMRC requires evidence that the couple's beneficial interests are unequal (75:25 in the above example), such as a written declaration or deed.

    3. lf the property is jointly held in equal shares, it is not possible to make a declaration for income to be divided in unequal shares.

    4. The form 17 rule therefore applies if the individuals are beneficially entitled to the income in unequal shares (s 837(1)(a)), such as 60:40, or even 100:0 (see HMRC's Trusts, Settlements and Estates manual at TSEM9848).

    5. The declaration on form 17 must be made by both spouses jointly. For example, it cannot be made by one spouse if the other disagrees.

    6. The declaration on form 17 must reach HMRC within 60 days from the date of signature of the last spouse to sign; otherwise, it is invalid. HMRC generally enforces this time limit strictly.

    7. The form 17 rule only applies to income arising from the date of the declaration (s 837(4)). Thus a declaration made very late in the tax year may have little or no effect on the couple's overall tax position for that year.

    8. HMRC treats a valid declaration on form 17 as continuing to apply in later tax years, until one spouse dies, the couple separate permanently or divorce, or the beneficial interest of a spouse in the property or income changes (see TSEM9864).

    Tip: A declaration on form 17 can be useful for income tax purposes. However, there may be other tax implications to consider, depending on the circumstances (e.g. stamp duty land tax) as well as non-tax implications in transferring beneficial interests in property.

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  • Private Residence Relief

    No capital gains tax liability arises where a person sells his or her home provided that the property has been his or her only or main residence throughout the period of ownership, except for all or any part of the last 18 months of ownership. If this condition is not met, principal private residence (PPR) relief generally applies to that fraction of the gain that related to the period for which the property was the taxpayer's only or main residence, including the last 18 months of ownership, divided by the length of ownership.

    However, relief may be restricted where part of the property is used for the purposes of a trade, profession or vocation, or where there is a change in the part that is occupied as the individual's residence, or where the property was acquired wholly or partly for the purposes of realising a gain from its disposal.

    Restriction 1 - use for purpose of a trade, business profession or vocation

    Where a gain arises on all or part of a dwelling house, part of which is used exclusively for the purposes of a trade or business, or a profession or vocation, the gain must be apportioned between the part used as a main residence and the part used for the trade, business, profession or vocation. PPR is not available in respect of the portion of the gain that relates to the part of the dwelling house used exclusively for the purposes of the trade, profession or vocation.

    It should be noted that the exclusion from PPR relief applies only to any part of the property which is used exclusively for the purposes of the trade, business, profession or vocation. Consequently, relief is not lost in relation to a room that is used for both business and private purposes.

    In a case where a part of the property is used exclusively for the purposes of a trade, business, profession or vocation, the gain must be apportioned between the residential and non-residential parts. The legislation does not provide how the apportionment must be made, and this must be determined by reference to the facts of the particular case.

    Some guidance as to HMRC’s approach to the apportionment calculation can be found in their Capital Gains manual. Their willingness to accept a simple apportionment based, for example, on the number of rooms used for each purposes, will depend on the tax at stake. HMRC note in their Capital Gains Tax manual (at CG64670) that in a mixed property, such as a pub with residential accommodation above, the business part would be expected to be of greater value than the residential value. Consequently, an apportionment based solely on the number of rooms or the floor area attributable to residential and non-residential use could produce an excessive amount of relief.

    It should also be noted that HMRC do not accept computations based on taking the value of the residential accommodation in isolation and deducting it from the consideration to determine the proportion attracting relief, as this is likely to produce excessive relief.

    Example: Apportioning the gain for PPR purposes

    Holly runs a small guest house, in which she also lives as her main residence. The property comprises twelve rooms, of which four are used exclusively for the purposes of her business. In July 2016, she sells the property for £900,000. She originally purchased the property in 1990 for £300,000. On sale she realises a gain of £600,000.

    On a simple apportionment by reference to the number of rooms, two-thirds (i.e. 8/12) of the gain would qualify for PPR relief, leaving one-third (£200,000) chargeable to capital gains tax. However, HMRC contend that a greater value attaches to the non-residential part and eventually it is agreed that the gain attributable to the part used for the business is £250,000. PPR is available in relation to the remaining gain of £350,000.  continued ...

  • Private Residence Relief ... continued

    continuation ...

    Relief is only restricted where part of the property is used exclusively for business purposes. Where a small business is run from a room in the home, ensuring that the room is also used for private purposes will preserve relief. For example, a room used as an office in the day could be used in the evenings for the children to do their homework. However, there must be some actual private use - simply leaving private possessions in the room will not be sufficient.

    Restriction 2 - change of use

    A residence may be altered or extended over time and its use may change frequently. Provision is made (in TCGA 1992, s 224(2)) to ensure that where the use of the property changes, the amount of the gain qualifying for PPR is adjusted in a manner which is `just and reasonable'.

    The provisions are wide ranging in their application; they bite where there is a change in what is occupied as a person's residence as a result of the reconstruction or conversion of a building or for another reason, and there is a change in the part that is used for a trade, business, profession or vocation or for any other purposes. The adjustment to the relief will again depend on the facts in each case. However, the adjustment should reflect the extent to which, and the length of time over which, each part of the dwelling house has been used as its owner's only or main residence. Relief is allowed for the final 18 months of ownership for any part which at some time has been the owner's only or main residence.

    It should be noted that this adjustment is only needed for periods where there is some residential use, but there are changes to the parts used for residential and non- residential purposes. If a property is used entirely as a main residence and is then used entirely for business purposes, relief is determined on a time-apportioned basis, with PPR relief being given for the period for which the property was the main residence or fell within the last 18 months of ownership.

    Restriction 3 - development gains

    The final restriction imposed by TCGA 1992, s 224 is in relation to development gains. The aim of PPR relief is to enable a home owner to buy a property of a similar standard in a rising market. The relief is not intended to exempt speculative development gains from tax.

    Relief is restricted (by s 224(3)) in circumstances in which a house is acquired wholly or partly for the purposes of realising a gain from disposal, or where there is subsequent expenditure on a property with a view to enhancing the property in order to make a gain. In the first case, no PPR relief is available. In the second case, no relief is given to the extent that the gain made relates to the enhancement expenditure incurred solely for the purposes of making such a gain.

    It should be noted that the restriction is not imposed where a householder buys (say) a home in an up and coming area in the hope that it will increase in value. The legislation is intended to apply where a property is bought specifically to make a gain, for example where someone buys a rundown property, does it up in six months and sells it at a profit. In a situation such as this it is also necessary to consider whether the individual is trading. A person who is in business as a property developer will be trading and their profits on sale will be subject to income tax rather than the gain being charged to capital gains tax.

    Practical Tip: PPR is a valuable relief, but it only applies where the property is used as a sole or main residence. Where this is not the case, relief may be restricted.

  • Mobile phones – a tax-free benefit

    Employers often provide employees with the use of a mobile phone and, structured correctly, they can be a valuable tax-free benefit. But there are pitfalls that may trap the unwary.

     

    The exemption

     

    An employer can provide an employee with a mobile phone without triggering a tax or National Insurance liability, provided that certain conditions are met.

     

    The first condition is that there is no transfer of property – the mobile phone remains the property of the employer. If the employer gives a mobile phone to an employee a tax charge would arise as this would constitute a transfer of an asset.

     

    The next condition is that the exemption only applies in respect of the provision of one phone per employee. This limit includes phones provided to members of the employee’s family (unless they too are an employee and are provided with a phone in their own right).

     

    The final condition is that the contract must be between the employer and the mobile phone provider. This is important as if the contract is between the employee and the phone provider the exemption does not apply.

     

    Smartphones included

     

    The good news is that the exemption is not limited to basic mobile phones and includes smartphones. However, HMRC do warn that `this is an area of rapidly changing technology and it is not possible to be certain about the application of the definition of ``mobile phone’’ to future or new forms of smartphone’.

     

    Paying an employee’s bill

     

    As noted above, for the exemption to apply, the contract must be between the employer and the phone provider. This is important as the exemption is not available if the contract is between the employee and the phone provider and the employer either pays the bill on the employee’s behalf or reimburses the employee. While the end result in each case is that the employer meets the cost of the employee’s mobile phone, the tax consequences are very different.

     

    • If the employer provides an employee with one mobile phone for his or her use, there is no tax or NIC to pay.
    • If the employer pays the bill on the employee’s behalf, this constitutes a pecuniary liability and the employer must report the benefit on the employee’s P11D and deduct Class 1 NICs via the payroll.
    • If the employer reimburses the cost of the employee’s mobile phone, the employer must deduct tax under PAYE and Class 1 NICs through the payroll.

     

    Trap

     

    All is not equal when it comes to meeting the cost of an employee’s mobile phone – ensure that the contract is between the employer and the phone provider to take advantage of the available exemption.

  • What Are The Likely Effects on the VAT system of BREXIT?

    It is still not clear when the UK will separate from the EU. However, it is quite likely that most trading rules and taxes will not change materially, as the UK will want to continue to trade freely with the EU.

    In order to leave the EU, the UK needs to activate Article 50 of the Lisbon Treaty. Once Article 50 has been activated there is a negotiation process lasting two years that will lead to the UK leaving the EU. Therefore, the start of 2019 is probably the earliest date for an EU exit, so nothing will change until them.

    Once the UK leaves the EU we will have more freedom to set our own VAT rates, so it is likely that some of the zero-ratings that were under threat from the EU will remain in place, and could be extended.

    If the UK remains in the EU Single Market, our VAT system will remain very closely linked to the EU system and any charges will still apply to the UK. If the UK decided not to remain in the single market, we will not be bound by any changes to the EU VAT regime, but will have reduced access to the EU markets. However, to make it as simple as possible to trade with the EU, the UK is unlikely to change any of the main VAT regulations.

    Businesses will no longer have to complete EC Sales lists or lntrastat Dispatches returns, and the distance sales thresholds will be unlikely to apply, so businesses should be able to zero-rate 'B2C’ (business to consumer) sales. The VAT return will be simplified as box 2, 3, 8 and 9 will no longer be required.

    Sales of goods to the EU will still be zero-rated, although businesses will not be required to obtain the customer’s VAT number in order to zero-rate supplies but will, however, be required to treat the sales as exports.  B2C sales should therefore be zero-rated, whereas they are currently subject to VAT.

    Businesses supplying services into the EU will continue to be able to treat them as outside the scope of VAT, and no VAT will apply. It is likely that this treatment will also apply to supplies of services to private individuals (B2C), which are currently subject to standard rated UK VAT.

    Other possible changes

    Businesses supplying B2C electronic downloads into the EU will be required to register for the 'non-Union’ MOSS scheme, rather than the current system. This will require affected businesses to register for VAT in one EU member state and submit a ‘non-union’ MOSS return.

    Goods purchased from the EU will no longer be treated as EU acquisitions, and will be treated in the same way as imports from outside the EU. There will, therefore, no longer be a requirement to account for acquisition tax on the UK VAT return, but import VAT will be due at the point of importation. This will add a small cashflow disadvantage for UK businesses buying from the EU. lntrastat Arrivals returns will no longer be required.

    Services purchased from the EU will not be subject to VAT, but UK businesses will still have to account for VAT under the reverse charge procedures. This will, therefore, remain broadly the same as it is today.

    In general terms, leaving the EU is likely to reduce administrative burdens on SMEs, but there may also be some cashflow disadvantages for businesses buying goods from the EU. Most other rules will probably remain broadly unchanged.

  • Contractor Loan Schemes - Beware

    HMRC is challenging certain tax avoidance arrangements sometimes used by one man  companies. Contractors and freelancers may be aware of schemes often referred to as ‘contractor loan schemes’ or ‘remuneration trusts’ which claim to avoid income tax by paying participants in the form of loans. This article outlines the arrangement and highlights reasons why such arrangements should be avoided.

    How does the scheme operate?

    In a contractor loans scheme, an individual is paid in the form of a loan from a trust or company, sometimes referred to as a remuneration trust. The payment is not made directly by the engaging company, and will be diverted through a chain of companies, trusts or partnerships.

    Scheme promoters have claimed that payments are non-taxable, because they are just loans and don't count as income. However, since the loan is not paid back, the payments are to be treated as normal income and should be taxed accordingly. Those who use such schemes are highly likely to be regarded by HMRC as participating in tax avoidance arrangements, and this could result in additional taxes, penalties and interest becoming due.

    In their guidance on the use of contractor loan schemes, HMRC specifically refer to the case of Boyle v HMRC [2013] UKFTT 723 (TC), where the taxpayer’s appeals against discovery assessments and/or closure notices in respect of a scheme for 'soft currency loans' from his employer, an Isle of Man company, failed. The tribunal determined that the loans were not genuine and the money paid to Mr Boyle as loans was 'in substance and reality income from his employment’ and therefore taxable.

    The first point to note is that all contractor loans schemes must be declared to HMRC. Once declared, the scheme promoter receives a scheme reference number, which must be passed on to all users of the scheme. So, if you are using a contractor loans scheme and you don’t show the correct scheme reference number on your tax return, you will be charged additional penalties. Note that HMRC also challenge undisclosed schemes, which means that even if a scheme hasn’t been declared, you may still need to pay additional tax, penalties and interest if you've used it.

    Broadly, HMRC never 'approves' schemes, so the reality is that the reference number merely identifies users, which in turn, prompts HMRC to investigate it! It is also worth noting here that HMRC wins around 80% of avoidance cases that taxpayers take to court, and many more users choose to settle their affairs before that stage.

    It is highly likely that an individual using a scheme will receive an 'accelerated payment notice’ (APN) from HMRC, requesting them to pay tax and NIC 'up front’, whilst the scheme is being investigated. The APN will only cover the tax or NICs advantage relating to the specific avoidance scheme covered by the APN. The amount shown may not be the final liability agreed, which may be larger or smaller than the amount of the APN. It will not include any interest, penalties or other tax that may be due in the year. Therefore, when the enquiry or appeal is finalised, there may be additional amounts to pay.

    HMRC points out that it may contact a scheme user’s clients to check their position relating to the contract. This may put vital working relationships at risk. HMRC may also seek information held by mortgage providers and other creditors about loans from schemes. If the level of income on your tax return is lower than the income disclosed on a mortgage application, HMRC may seek penalties.

    If the loan was paid through a trust, inheritance tax may also be payable, either immediately or at some stage in the future.

    HMRC strongly advises anyone using a scheme to withdraw from it and settle their tax affairs.

  • Entrepreneurs’ Relief: Timing matters

    A valuable capital gains tax relief can easily be lost through unfortunate timing.

    Entrepreneurs’ relief (ER) is among the most popular and well-known of tax reliefs. ER offers a capital gains tax (CGT) rate of 10% on net chargeable gains of up to £10 million. A claim for ER is available on a material disposal of business assets, such as an individual’s company shares, where certain conditions are satisfied.

    A disposal of shares will typically involve a sale (or possibly a gift). However, for ER purposes the disposal of an interest in shares can also include a company purchase of its own shares from the individual shareholder. Such payments are normally treated as income distributions. However, if certain requirements are met, the shareholder is normally treated as receiving a capital payment instead.

    Share disposals require certain alternative conditions to be met for ER purposes, depending on the circumstances. The most common of those conditions requires that the following criteria are met throughout the period of one year ending with the date of disposal: firstly, the company is the individual’s personal company and is either a trading company or the holding company of a trading group; and secondly, the individual is an officer or employee of the company (or, if the company is a trading group member, of one or more companies which are members of the trading group).

    Thus ER can be inadvertently lost if the individual resigns as an officer and employee before the date of disposal of the shares.

    ln Moore v Revenue v Customs [2016] UKFTT 115 (TC), the taxpayer was a director shareholder of a trading company, and was also employed with the company under a contract of employment. Following a dispute between the taxpayer and the other director shareholders, it was agreed that the taxpayer would leave the business.

    There were unsigned and undated Heads of Terms prepared in February 2009, in which it was agreed that the company would purchase 2,700 of the taxpayer's 3,000 shares. It was also agreed that the taxpayer's employment would be terminated, and that he would resign as a director.

    Subsequently, at a general meeting of the company on 29 May 2009, it was resolved that the company would purchase the 2,700 shares from the taxpayer. On the same day, the taxpayer signed a compromise agreement for the termination of his employment, and also Companies House papers concerning his resignation as a director. However, that documentation stated the effective date of the taxpayer's resignation as 28 February 2009.

    HMRC refused an ER claim on the share disposal, because the taxpayer was not an officer or employee of the company throughout the period of one year ending with the disposal of his shares on 29 May 2009. The taxpayer appealed.

    A company purchase of own shares must comply with company law requirements to be valid. The First-tier Tribunal noted that a contract for the purchase must be approved in advance by resolution. That resolution was not passed until 29 May 2009. The taxpayer ceased to be a director or employee on 28 February 2009. Therefore, the 'officer or employee' condition for ER purposes was not satisfied for the one-year period up to the date of disposal on 29 May 2009. The taxpayer’s appeal was dismissed.

    (The taxpayer in Moore continued to provide services to the company after his employment had ended. Even though he ceased to be a director and employee of the company in February 2009, it might have been possible to argue that he effectively continued to be an employee, based on ER case law. Unfortunately, in Moore the taxpayer’s services were provided through a personal service company, and not directly.)

  • UK Resident Landlords

    This overview relates to a schedule A business, which is applicable to most individual landlords. Special rules apply to the rent a room scheme and to holiday lets. Hotels and guest houses are also excluded from these general rules.

    Rents & allowable expenses

    Rents less allowable expenses are taxable as part of the taxpayers total UK income. The main rule for allowable expenses is that they must be wholly and exclusively incurred in the course of the letting business. It is important to differentiate initial and capital costs from running costs. Capital costs and set-up costs, which are capitalised, are usually relieved for tax purposes against the calculation of the gain on sale of the investment property. The cost of improvements is normally treated as increasing the base cost of the investment.

    The two biggest items allowable as a deduction in calculating taxable net rental income will often be mortgage interest and travel where the cost is attributable to the rental income. The lettings agent will incur other costs and as long as these represent routine maintenance these too will be allowable. From 6 April 2017 individuals receiving rental income on residential property in the UK will receive relief on mortgage interest at the basic rate of income tax (to be introduced progressively over four years from 6 April 2017)

    Basis of determining ‘rent’

    The rental income for small lettings (under £15k p.a.) is normally calculated as the cash received. Taxable rent from all other lettings are taxable on an earned or receivable basis though relief is normally given for unrecovered rental.

    Losses

    Special rules apply to the treatment of losses. While profits are added to a taxpayer’s income and taxed at the taxpayers highest rates, losses generally may not be set off income from other sources other than some types of other property income. Losses may be carried forward to offset future profits, with some restrictions on the type of profits they may offset.

    Tax returns

    All UK residents with un-taxed income or profits are obliged to notify HMRC by 5th October following the end of the tax year when such income or profit first arose. Landlords must also notify HMRC when gross rental income exceeds £10,000. Unless the taxable amount is under £2,500 and HMRC can collect the tax due through the PAYE scheme, HMRC will require submission of a Tax Return. The landlord’s Tax Return must include the additional property pages. All Income Tax Returns must be filed by 31st January following the end of the Tax Year (the previous 5th April) if filed online, otherwise the deadline is the previous 31st October. The calculation of the tax liability takes into account all the landlord’s other income and allowances, and for this reason is necessarily complicated.

    Sale of property

    On disposal of the property any increase in value is potentially subject to capital gains tax. The gain is calculated by comparing the sales proceeds with all the acquisition costs. Some reliefs are available and there is a personal annual exempt amount. Substantial reliefs are available if the landlord has lived in the property at any time as his only and principal private residence.

    Residence

    You are resident in the UK if you normally live in the UK and only go abroad for holidays and short business trips. If you believe you may be non-resident then you must pass several precise tests.

    This note is provided as a general overview. It should not be relied upon for taxation purposes, as it cannot provide a complete analysis of the law in any particular circumstance. We will be pleased to advise on any individual situation.

  • Tax Return Errors

    Errors are sometimes made in tax returns. This can result in HM Revenue and Customs (HMRC) seeking to impose penalties in respect of the errors. If the tax return error has resulted (for example) in a tax liability being understated, HMRC will generally consider whether the error was careless or deliberate. An error is 'careless' if it arises due to a failure to take reasonable care. Thus no penalty can be charged if the error arose despite reasonable care having been taken.

    Is it 'reasonable' or not?

    Unfortunately, there is no statutory definition of 'reasonable care’ for these purposes. This has resulted in case law over the years on the distinction between reasonable care and careless (or negligent) behaviour.

    For example, in Collis v Revenue & Customs the First-tier Tribunal commented: 'We consider that the standard by which [reasonable care] falls to be judged is that of a prudent and reasonable taxpayer in the position of the taxpayer in question.'

    HMRC considers that reasonable care depends on the particular taxpayer's abilities and circumstances. However, HMRC generally expects higher standards of taxpayers with professional advisers.

    Incorrect advice

    However, has a taxpayer taken reasonable care in relying on professional tax advice, if that advice results in a tax return error? The answer seems to be 'it depends'. For example, in Gedir v Revenue & Customs [2016], the First-tier Tribunal held that the taxpayer took reasonable care despite a tax return error. In reaching that conclusion, the tribunal noted the following 'essential elements':

    - the taxpayer consulted an adviser he reasonably believed to be competent;

    - he provided the adviser with the relevant information and documents;

    - he checked the adviser’s work to the extent that he was able to do so; and

    - he implemented the advice.

    The tribunal noted the earlier case Hanson v Revenue and Customs [2012], and considered that the decision in that case sets out the correct basis for establishing whether a taxpayer who uses an agent to complete his tax return has taken reasonable care to avoid an inaccuracy in the return. In Hanson, the First-tier Tribunal considered that there was carelessness on the part of the taxpayer’s advisers. However, the taxpayer had taken reasonable care to avoid the error. In the circumstances, the taxpayer was entitled to rely on his accountants' advice without the taxpayer consulting the legislation or any HMRC guidance.

    On the other hand, a taxpayer's reliance on professional advice does not represent a 'get out of jail' card in all circumstances. For example, in Shakoor v Revenue and Customs [2012], the tribunal found that an accountant's incorrect advice was obviously wrong, and that the taxpayer realised, or ought to have realised, that it was obviously wrong, or so potentially wrong that it called for further explanation or justification. The taxpayer therefore incurred a penalty.

    Tip: Taking a different view from HMRC on a technical point is not necessarily careless behaviour, if the taxpayer’s adviser's view turns out to be incorrect. Provided that the view is reasonable, the adviser is entitled to advise the taxpayer on that basis. The First-tier Tribunal decisions in Gedir and Hanson on reasonable care do not create a binding precedent, but may be persuasive in cases where the taxpayer has made a tax return error concerning a point on which professional advice has reasonably been taken, and HMRC is contending that the error it was careless.

  • Tax Return Enquiries: Check The Small Print

    The UK's tax system might seem harsh to taxpayers who make a mistake, such as where a tax return error results in a penalty. Taxpayers (and their advisers) could be forgiven for thinking that in contrast, when HM Revenue and Customs (HMRC) makes a mistake such as a procedural or clerical error when opening an enquiry into a tax return, it suffers no significant repercussions. Whilst this will often be the case, the tax legislation does not always save HMRC from a fall when they slip up.

    HMRC error

    For example, in Mabbutt v Revenue and Customs [2016], HMRC issued by letter a notice of its intention to enquire into the appellant's tax return 'for the year ending 6 April 2009’.

    The appellant's agent pointed out to HMRC that the notice of enquiry did not refer to the tax year ended 5 April 2009. HMRC’s response was that the letter was a valid notice of its intention to enquire into the appellant's tax return for the year ended 5 April 2009. HMRC argued that the notice was 'saved' by legislation dealing with errors in assessments, etc. (see below).

    HMRC later closed the enquiry. The difference between the calculations of HMRC and the appellant in respect of his tax liability for the year ended 5 April 2009 was around £653,000. The appellant appealed against HMRC's conclusions in the closure notice, and contended that an enquiry was not opened because no valid notice of enquiry was given.

    An escape route for HMRC?

    HMRC sought protection from its error by relying on TMA 1970, s 114(1), which broadly provides that assessments etc., are not invalidated by errors in certain circumstances. The First-tier Tribunal in Mabbutt considered that there are four requirements in s 114(1):

    1. the provision only applies to certain documents, and an HMRC notice of enquiry must be one of them;

    2. HMRC’s notice of enquiry must purport to be made pursuant to a provision of the Taxes Acts;

    3. the notice of enquiry must be 'in substance and effect in conformity with or according to the intent and meaning of the Taxes Acts’; and

    4. the person or property charged or affected by the notice of enquiry must be 'designated therein according to common intent and understanding.'

    The tribunal held that the requirements in 1, 2 and 4 were all satisfied. Howeven the tribunal concluded that requirement 3 above was not satisfied, as the return described in HMRC’s letter giving notice of the enquiry was for a tax year which did not exist.

    ln order to rely on s 114 to cure the error in the notice of enquiry sent to the appellant, HMRC needed to satisfy the tribunal that all four requirements in s 114(1) were met. Although satisfied that three of them were met, the tribunal held that the error in HMRC’s letter resulted in a stated intention to enquire into a tax return for a year which did not exist, and that 'the substance and effect did not conform to the intent and meaning of the Taxes Acts.'

    The tribunal concluded that HMRC’s enquiry notice did not constitute a valid notice of enquiry into the appellant’s return for the tax year ended 5 April 2009, and s 114 did not apply to save the disputed notice. Without a valid enquiry notice, there was no enquiry. HMRC’s purported closure notice therefore had no standing. The appellant’s appeal was allowed.

    Tip: Even though HMRC lost the above case, could they not have simply issued a new, correct tax return enquiry notice? In many cases, they can. However, in Mabbutt, HMRC were out of time to do so. ln addition, by the time this case reached the tribunal, HMRC were also out of time to raise a discovery assessment (under TMA 1970, s 29) outside the normal tax return enquiry window. HMRC’s error was therefore costly - to the tune of about £653,000.

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