tax faculty weekly news update newswire: 944 · tax faculty – weekly news update 1 newswire: 944...
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TAX FACULTY – WEEKLY NEWS UPDATE
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Newswire: 944
This is a summary of the key tax events for the week ended 13 January 2019. It has been compiled by Anita Monteith, Jane Moore and Ian Young. This newswire contains all the individual postings we have made to the Tax Faculty website over the past seven days. It includes both news items (ion.icaew.com/taxfaculty) and new discussions (ion.icaew.com/Taxforum).
CONTENTS
Join the Tax Faculty team for TAXtalk on 16 January 2019 1
If you ever amend a tax return we need a couple of minutes of your time 1
New OTS director announced 2
Self assessment deadline – practical points and reminders 2
HMRC MTD update for agents: issue 2 now available and MTD Talking Points 3
MTD for VAT pilot is now open to all businesses mandated from April 2019 4
More details on the deferral of MTD for VAT to October 2019 for certain businesses 4
Trust registration service – 31 January 2019 deadline 5
Trusts and estates newsletter – updates on the TRS, IHT admin, and more 6
Profit Diversion Compliance Facility 6
State aid and tax – Netherlands and Nike 7
Join the Tax Faculty team for TAXtalk on 16 January 2019 The January edition of TAXtalk will be available at 12:30 on Wednesday 16 January 2019. Anita Monteith will be joined by Caroline Miskin, Tax Practitioner Manager, and Frank Haskew, Head of the Tax Faculty. TAXtalk is free to watch and each broadcast is 30 minutes. By mid-January, we will have just two weeks before the self assessment deadline and just over 11 weeks before Making Tax Digital for VAT begins. The team will be giving their thoughts on prioritisation and some tips for navigating the challenges (and avoiding panic). Earlier editions of TAXtalk are still available to watch for free.
If you ever amend a tax return we need a couple of minutes of your time Making Tax Digital is coming and tax records will increasingly be held and submitted digitally, but amendments to tax returns will still be needed. HMRC is looking at how that process might be modernised to develop something simpler for income tax, corporation tax and VAT.
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To that end, HMRC has published a call for evidence Amendments to tax returns which outlines the current options for amending tax returns, together with a series of direct questions to gather evidence on the issues taxpayers face when making amendments. We would like to collect evidence from our members to inform ICAEW’s response to this document. Our quick quiz is very high level and should take no more than 5 minutes to complete (we know this is a very busy time of year for tax practices). Your answers will provide us with some important background information. It will be open until 9:00 on Monday 4 February 2019 although earlier feedback would be helpful please. You can also submit comments to us by emailing [email protected] before 4 February 2019.
New OTS director announced The Office of Tax Simplification (OTS) is to have a new director: Bill Dodwell. He will succeed the present director, Paul Morton. Bill Dodwell will be known to many people in the tax world. He was head of tax policy at Deloitte until May 2018, following which he joined the OTS as a senior policy adviser. He is a former president of the Chartered Institute of Taxation and has chaired its technical committee. Bill has represented Deloitte and the CIOT in technical work and at various parliamentary committees. He is also editor-in-chief of Tax Adviser magazine. The Financial Secretary to the Treasury, Mel Stride, said: “We are committed to simplifying the tax system and the Office of Tax Simplification is vital in providing informed advice on how to achieve this. Bill Dodwell has the capability and expertise to ensure the OTS continues this valuable work. “I would like to thank Paul Morton for his exceptional work for the last two years. I am confident he leaves the OTS on a strong footing.”
Self assessment deadline – practical points and reminders In advance of the 31 January deadline for filing 2017/18 self assessment returns online, the Tax Faculty has gathered together some reminders and practical points: 2017/18 self assessment (SA) returns: 31 January 2019 is the filing deadline for 2017/18 personal, partnership and trust returns filed online, or for paper returns which cannot be filed online (see below, under Exclusions). Payment of tax: The balancing payment for 2017/18 and first payment on account for 2018/19 are due on 31 January 2019. Amending 2016/17 returns: 31 January is also the deadline for amending 2016/17 SA returns. Exclusions: Returns covered by an online filing exclusion should be filed on paper. Ideally, the relevant exclusion number should be clearly marked on the return so that it is diverted to the specialist team that processes returns for exclusion cases. HMRC has a backup process for paper exclusion case returns that are missed and for those that are filed online despite an exclusion applying. Where the initial processing results in an incorrect liability HMRC will issue a revised calculation in due course but we do not yet know when HMRC expects to issue revised calculations for 2017/18.
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Payments: HMRC no longer sends SA statements where the amount due is less than £99.99 Payments on account: HMRC’s system is in some cases failing to generate the payments on account for 2018/19. This issue has been raised with HMRC but as it stands each case has to be corrected individually by contacting HMRC Gift Aid: 31 January is the deadline for carrying back gift aid donations to 2017/18. A carry-back claim can only be made until the return is filed, amendments are not accepted. Finalising 2017/18 tax credit awards: 31 January is also the deadline for finalising provisional figures provided when finalising 2017/18 tax credit awards. Tax changes that apply for the first time in 2017/18:
• Requirement for company directors to file SA returns: HMRC has updated its guidance to clarify that company directors with income taxed at source and with no further tax to pay, do not need to complete a SA tax return.
• Property taxes: This is the first year in which the new rules for restricting the interest that can be deducted from property income apply and also the first year of the cash basis for property income.
• Trading and property allowances: The £1,000 trading and property allowances were introduced with effect from 6 April 2017.
• Overseas pensions: With effect from 6 April 2017 there is no 10% deduction for overseas pension income.
• Payrolling of benefits: Official payrolling of employee benefits in kind started in April 2017 so in some cases there will no longer be P11D benefits to report on SA returns.
• Scottish rate taxpayers: The higher rate threshold for Scottish rate taxpayers was frozen for 2017/18 so for the first time there will some cases where the tax liability differs depending on whether Scottish rates apply.
HMRC MTD update for agents: issue 2 now available and MTD Talking
Points HMRC has published the second in its new series of Making Tax Digital (MTD) updates on the progress of MTD for agents. The file can be downloaded below this news item and is also included at the end of this document, for your convenience. Issue 1 is available on a previous news item. Any agent who would like to receive the update directly from HMRC should email [email protected]. Details of the next HMRC Talking Points MTD webinars for agents are as follows: Making Tax Digital (MTD) for business: This webinar will cover some fundamentals in regards to getting ready for MTD VAT in more depth than previous webinars. HMRC will cover exemptions, the agent services account, spreadsheets and bridging software in more detail. HMRC will also cover how to register businesses for the public beta pilot in advance of the April start date. Tuesday 22 January – 11am to midday Tuesday 22 January – 1pm to 2pm Tuesday 22 January – 3pm to 4pm
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MTD for VAT pilot is now open to all businesses mandated from April
2019 On 10 January 2019 HMRC opened up the Making Tax Digital (MTD) for VAT pilot to all businesses that will be mandated from April 2019 (ie, the first VAT accounting period starting on or after 1 April 2019). Shortly before Christmas 2018 the pilot was opened up to partnerships and Flat Rate Scheme users and the following groups are now also able to join:
• EU traders
• Monthly filers
• Businesses that use non-standard VAT accounting periods
• Businesses that are not up to date with their VAT returns
• Businesses that are newly registered for VAT and have not previously used their VAT online account to submit their VAT Return
• Group registrations: groups can now join the MTD for VAT pilot although the mandatory start date for group registrations is 1 October 2019.
See our separate news item on the businesses whose start date has been deferred to 1 October 2019. HMRC also revealed that, as at 10 January 2019, more than 3,500 businesses had joined the pilot. The number of businesses that will be required to join from April 2019 is approximately 1.1m. Information on how to sign up to MTD for VAT is available on the ICAEW MTD hub page Signing up to Making Tax Digital for VAT. It is worth noting that each business has a very specific window in which it can sign up to MTD for VAT. Businesses (or their agent on their behalf) need to sign up:
• Only after they have filed all their non-MTD VAT returns (which may not be until 7 August, 7 September or 7 October 2019 for quarterly filers).
• Only when they have acquired an MTD compatible software product
• If they pay by direct debit, not within the 15 working days before the submission date and the five working days immediately after it.
This can give quite a short timeframe, particularly for businesses that file monthly returns. The Tax Faculty has received reports of unexpected rejections of applications to sign up for the pilot. This is expected to improve following the relaxation of the eligibility criteria. Any business or agent that encounters a problem during the sign up process is advised to use the ‘Get help with this page’ link on the relevant screen. This will raise a ticket with HMRC’s helpdesk who will get in touch to resolve the issue (ie, it is a way to get specific help rather than just a way of raising a general issue with a gov.uk page). HMRC is writing to all businesses mandated from April and expects that all letters will have been received by early February. These letters are to raise awareness and do not have legal standing; HMRC is not able to identify with absolute accuracy which businesses are within scope for MTD for VAT and the onus is on the business (or their agent) to self assess whether they are required to comply.
More details on the deferral of MTD for VAT to October 2019 for certain
businesses On 16 October 2018 the government announced that the start date for Making Tax Digital (MTD) for VAT is deferred by six months for a small group of complex businesses.
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The deferral, to the first VAT accounting period starting on or after 1 October 2019, applies to the following:
• trusts
• ‘not for profit’ organisations that are not companies (this includes some charities)
• VAT divisions
• VAT groups (the deferral applies to the group registration only and not to any group
companies that are not covered by the group registration)
• public sector entities that are required to provide additional information alongside their VAT
return (such as Government departments and NHS Trusts)
• local authorities and public corporations
• traders based overseas
• those required to make payments on account
• annual accounting scheme users. With the exception of VAT groups, who can now sign up to MTD for VAT, businesses that fall into the categories listed above cannot currently join the MTD for VAT pilot. Although HMRC has written to each deferred business, there has been a delay to approximately 5,000 letters that are due to be issued by the Non-established Taxable Persons unit in Aberdeen. Unlike the MTD awareness letters, the letters to deferred businesses do have legal standing. Any business that wishes to rely on the deferral must ensure that it receives (and retains) the letter notifying them that their start date has been deferred. HMRC has confirmed that if a business receives a deferral letter in error they can rely on having done so and need not comply with MTD for VAT until their first VAT accounting period starting on or after 1 October 2019. If a business understands that it is in one of the deferred categories but has not received a letter, it should contact the VAT helpline to request a letter. HMRC has also indicated that the soft landing for digital links will apply for the first 12 months of mandation ie, for deferred businesses the digital links requirement will apply to VAT accounting periods starting on or after 1 October 2020 and the MTD for VAT notice will be amended accordingly.
Trust registration service – 31 January 2019 deadline 31 January 2019 is an important deadline for some trusts to be registered on HMRC’s Trust Registration Service (TRS). As previously reported the TRS was introduced in 2017 as the government’s response to the requirements of the fourth EU money laundering directive. All express trusts with a tax consequence have to register. All trusts with a tax consequence in 2016/17 had to register by 31 January 2018, but due to problems with the system, HMRC committed to not raising a penalty on those trusts provided they had registered before 5 March 2018. Trusts with a tax consequence in 2017/18 and not already registered must register by 31 January 2019. There will be no extension to the filing deadline this time around. Trusts already registered are asked to confirm on the trust tax return that the details on the TRS have been checked and updated as necessary. However, the online update facility is not available so the question can be ignored and instead changes to the lead trustee or the correspondence address should be notified to HMRC in writing; other changes can be held over.
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Trusts and estates newsletter – updates on the TRS, IHT admin, and
more The latest edition of HMRC’s Trusts & Estates newsletter was published on 20 December 2018 and covers an eclectic list of topics. First off the block is a reminder for agents to use the toolkits aimed at trusts. These toolkits can be very useful and help agents who only file a few trust returns to avoid the common mistakes. There is an update on the trust registration service (TRS). It is still not available for trustees or agents to update their information, and so changes in the lead trustee or the trust correspondence address have to be made by post. The update facility should become available from summer 2019 when the new TRS starts to be rolled out. In the meantime the question on SA900 asking if the TRS has been updated can be ignored and left blank without fear of a penalty. HMRC is asking for volunteers to help with the new TRS – details are on the newsletter if you would like to volunteer. The new TRS is necessary to help with the roll out of the Fifth EU Money Laundering Directive which will require all express trusts to be registered regardless of whether they have a tax liability or not. A consultation will be issued on this extension. The existing TRS should still be used to record trusts with a tax liability for the first time in 2017/18 (the registration must be done by 31 January 2019) or in later years, and to request a UTR for new trusts. There is a reminder that there is an ongoing consultation on trusts, which is discussed in our news item Government seeks views on how trusts are taxed. Responses need to be submitted by 30 January which is not great timing for private client specialists. If you have any comments you would like to feed into the ICAEW’s consultation response please email [email protected] The change to the IHT manuals regarding specialty debts is reported, we covered this change in our news item in September 2018: Specialty debts and situs – changes to the IHT manuals There has been a change to the form required to apply for confirmation in Scotland, the latest form is available on GOV.UK and must be used. Before making an IHT payment for a lifetime event it is necessary to apply for a reference using form IHT122 to ensure the payment is matched to the correct case. Finally there are a few tips on how to avoid delays when sending forms and documents to HMRC to make sure they do not get delayed in the post scanning operation.
Profit Diversion Compliance Facility HMRC has launched a new disclosure facility for multinational companies that feel they may come within the Diverted Profits Tax (DPT) regime but have not yet regularised the position with HMRC. On 10 January 2019 HMRC published guidance on the Profit Diversion Compliance Facility (PDCF). The structure of the PDCF seems to be appropriate for a multinational company which has concluded it has an actual DPT liability which is not capable of being eliminated by a transfer pricing adjustment, subject to the following: 1. The statutory threshold for DPT notification is wider than the threshold for an actual DPT liability. A multinational company which has concluded that it has not complied with a statutory DPT notification, but considers it has an arguable case that there is no actual DPT liability may see a PDCF as unsuitable.
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2. A multinational company which has concluded that it may have a DPT liability but would expect the DPT liability to be reduced to nil by a transfer pricing adjustment, may take steps in relation to transfer pricing rather than enter into a PDCF. We are not sure there are enough benefits in the PDCF to create sufficient incentive for a multinational company to consider using the PDCF. We expect HMRC to issue so-called ‘nudge’ letters to businesses it considers should either use the facility, or which they consider need to review their affairs and potentially make a voluntary disclosure. If any readers are considering using the PDCF, or use it in the future, please get in touch with Ian Young [email protected] with relevant details so that ICAEW is aware of how the new facility is working in practice. Ian would also be interested in information about DPT more generally, as well as about this new disclosure facility in particular.
State aid and tax – Netherlands and Nike The European Commission Competition Directorate (the Commission) has been investigating a number of cases where it suspects member states have allowed their tax systems to be used by companies to pay less tax than should strictly be payable if the tax system was applied correctly. The latest case, publicly announced on 10 January 2018, concerns the Netherlands and Nike. The Commission has decided to open an in-depth investigation to examine whether tax rulings granted by the Netherlands to Nike gave the company an unfair advantage over its competitors in breach of EU state aid rules. Read the Press Release by clicking here. In September 2018 the Commission announced that its investigation into Luxembourg and its tax treatment of McDonalds had concluded that the tax treatment was a consequence of the correct application of the then tax rules and not a derogation from those rules. So the EU state aid provisions did not apply. You can read our report when the detailed conclusion was published in January 2019 by clicking here. So it is sometimes the tax system, and the interaction between individual tax systems and the international tax regime, which produces a favourable tax result. A lot of effort is being made to ensure that tax systems work as governments intend and to make appropriate changes if they don’t. So the G20 has been supporting the work of OECD in its Base Erosion and Profit Shifting work and its transparency and disclosure efforts through the Global Forum on Transparency and Exchange of Information. In Europe we have had ATAD (Anti-Tax Avoidance Directives). The action against the Netherlands and Nike, as set out in the Press Release, provides the background to the case as follows: “Nike European Operations Netherlands BV and Converse Netherlands BV obtained licenses to use intellectual property rights relating to, respectively, Nike and Converse products in the EMEA region. The two companies obtained the licenses, in return for a tax-deductible royalty payment, from two Nike group entities, which are currently Dutch entities that are "transparent" for tax purposes (i.e., not taxable in the Netherlands).The Nike group's corporate structure itself is outside the remit of EU State aid rules. From 2006 to 2015, the Dutch tax authorities issued five tax rulings, two of which are still in force, endorsing a method to calculate the royalty to be paid by Nike European Operations Netherlands and Converse Netherlands for the use of the intellectual property. As a result of the rulings, Nike European Operations Netherlands BV and Converse Netherlands BV are only taxed in the Netherlands on a limited operating margin based on sales. At this stage, the Commission is concerned that the royalty payments endorsed by the rulings may not reflect economic reality. They appear to be higher than what independent companies negotiating on market terms would have agreed between themselves in accordance with the arm's length principle.”
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The Commission Infographic, which explains the Nike set up, can be viewed by clicking here. In essence the Netherlands companies were paying significant royalties to other companies in the Nike group so that there were very low taxable profits in the Netherlands. The Press Release also notes that there are going to be changes to the tax regime in the Netherlands: “In addition to implementing comprehensively the Anti-Tax Avoidance Directives (ATAD I and ATAD II), the Netherlands have announced plans for a broad reform tightening the requirements for tax rulings concerning international structures. For example, no rulings will be granted if a tax structure involves a tax haven or if the purpose of the ruling is essentially to avoid Dutch or foreign taxes. Moreover, to enhance transparency and consistency, all Dutch tax rulings involving international structures will be centrally managed and monitored, and the tax authorities will publish an anonymous summary of all these rulings. Finally, the Netherlands have also announced plans to introduce a withholding tax on interest and royalty payments made to companies in tax havens.” An overview of state aid Ian Young has written a general article explaining state aid which will be published in the February 2019 edition of TAXline. Over the past 7 or 8 years the Commission has been seeking to use its state aid powers to attack, in particular, tax rulings which the Commission believe cause individual businesses to pay less tax to EU member states than they should. At the same time OECD, and the Commission, have been reconfiguring the international tax regime to try to produce tax outcomes which better reflect where economic activity takes place and profits are made. As the Luxembourg McDonalds state aid decision has shown some of the rulings that have been investigated reflect the tax regime at the time. In many respects state aid is seeking to punish past behaviour when what is needed is a sustainable and acceptable tax system for the future. The state aid case involving Ireland and Apple will be heard in the next few months before the General Court of the European Union (CJEU) and that is likely to give a better idea as to whether there is merit in the state aid cases themselves.
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MTD Update for Agents #2: 11th January 2019 Dear Agent
Happy New Year!
Welcome to the 2nd edition of our Making Tax Digital update for agents.
We’ve brought together the latest MTD information into this update. If there’s any subject you’d like us to cover in future updates please let us know via the MTD mailbox:
MTD letters to businesses
• April mandated
HMRC has started to contact businesses who are mandated from April. We halted the issuing of these letters over the festive period but will be resuming soon. Every business affected by MTD for VAT should have received a letter by the early February 2019.
• October mandated - Deferred
The majority of customers who are deferred until October have now been sent a letter informing them. The exception to this is businesses that are based overseas and we plan to issue those letters in the next few weeks.
If a customer is expecting a deferral letter but hasn’t received one they are advised to contact the VAT Helpline on 0300 200 370.
We are on track to write to all businesses affected by MTD by early February 2019
Key Updates
• Signing up to the pilot
Do not sign up to the pilot until you are ready. If you intend to file any returns using the portal or non-MTD enabled software do not sign up to use MTD until you have submitted your final return via the legacy route
• New Agent Services Account
Agents will need to set up a new Agent Services Account (ASA) in order to use Making Tax Digital for Business or any other HMRC digital service. There is guidance on GOV.UK at https://www.gov.uk/guidance/get-an-hmrc-agent-services-account
You will be able to use your new ASA to act on behalf of your client to 1. Submit VAT returns
2. Change your client’s business details for VAT
3. Send Income Tax Updates as part of HMRC’s MTD pilot
4. Register a trust online
5. Register an estate online for someone who has died
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• Getting help with sign up to ASA and MTD
If you have any issues creating a new ASA, linking clients or signing clients up to MTD you should select the link ‘Get help with this page’ on the GOV.UK page you are on. This will raise a query with our IT Service Desk who will investigate and respond accordingly.
• Agent Services account and AMLS
You need to provide your Anti Money Laundering Supervisors' name, reference number and expiry date when creating an ASA.
It has been a legal requirement since 2009 that all Accountancy Service Providers (ASPs) must be supervised for anti-money laundering purposes. HMRC is the supervisor of all ASPs not supervised by a professional body.
To ensure all agents are compliant with the legal requirements the creation of an Agent Services Account will include Anti Money Laundering checks, this will ensure that all agents regardless of the head of duty they are reporting (ITSA, PAYE, VAT etc) are subject to the same checks and standards.
You can find more guidance on AMLS on GOV.UK including how to apply at https://www.gov.uk/guidance/money-laundering-regulations-accountancy-service-provider-registration
• ASA Overseas Agents
Agents based overseas cannot currently sign up for a new Agent Services Account and will not be able to do so until February. This means if the businesses they represent want to join the pilot before that they have to sign up themselves. If a business signs themselves up this does not stop the agent from acting on their behalf going forward.
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Spotlight On…….. Digital Records
All VAT registered businesses must keep and preserve certain records and accounts. Under Making Tax Digital, some of these records must be kept digitally within functional compatible software
VAT Notice 700/22 section 3 explains the requirements of Digital Record-keeping and Section 3.3 lists Records that must be kept digitally 3.3.1 Designatory Data – Business Name - Address of your principal place of business - Your VAT registration number - Any VAT Accounting Schemes that you use 3.3.2 Supplies made - Time of supply (tax point) - Value of the supply (net value excluding VAT) - Rate of VAT charged. 3.3.2.1 Supplies made by third party agents 3.3.3 Supplies received - Time of supply (tax point) - Value of the supply - Amount of input tax that you will claim. 3.3.3.1 Supplies received by third party agents
Any records not specified in VAT Notice 700/22 or that are not required to complete your VAT return do not need to be kept in functional compatible software.
Top 5 Agent Questions about Digital Records
1) Can my customers still issue manual invoices? Yes. If a business issues paper invoices it can type the selected data contained in the invoice
into functional compatible software this includes spreadsheets. In addition the business can take a photo of the invoice and scan it into their software.
2) Do my customers need to record every line on the invoice? No. Where more than one supply is recorded on the invoice and these supplies are within the
same VAT period and charged at the same rate of VAT you can record these as a single entry.
3) How do my customers record petty cash purchases? Where you are claiming input tax on employee expenses and your employee provides the
combined value of more than one purchase, you do not have to record each purchase separately. The business can record the total value and the total value input tax due.
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4) How do businesses record adjustments such as partial exemption calculations? If the adjustment requires a calculation, this calculation does not have to be made in the
functional compatible software Only the total for each type of adjustment needs to be kept in functional compatible software. Digital links are not required for any of the information used in the calculation however using software for all your calculations will reduce the risk of errors in your returns.
There is a separate process for correcting errors. For more information on correcting errors
refer to https://www.gov.uk/government/publications/vat-notice-70045-how-to-correct-vat-errors-and-make-adjustments-or-claims
5) Do businesses need to record reverse charge transactions digitally? If your software records reverse charge transactions then you do not need separate entries for
the self-supply and purchase. If your software does not record reverse charge transactions then the business will need to
record reverse charge transactions twice, once as a supply made and a second time as a supply received.
Myth Busters
“HMRC will deny access to the online portal where a business has a turnover above £85K – even if this includes exempt supplies and their taxable turnover is below £85K.” This is incorrect. Each business is responsible for checking their taxable turnover, and must sign up for the new MTD service if it is over the VAT registration threshold (currently £85,000). We will only close the legacy VAT service (aka the online portal) for a specific business once they have signed up to MTD – until they do, they can continue to use the existing service. The MTD rules only apply to businesses over the threshold. Those under the threshold can join voluntarily if they wish. VAT Notice 700/22 section 2 has more information about the turnover test.
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