Fieldfisher's Leading Tax Experts Contribute to PLC's Budget Commentary
Hartley Foster, Fieldfisher LLP
As per usual, a panoply of measures with the aim of reducing tax avoidance and tax evasion will be introduced. No sweeteners have been added.
The new measures to deal with "serial" tax avoiders will include a special reporting requirement and penalty for those whose latest return is inaccurate due to the use of an unsuccessful structure. Controversially, those who are determined to have abused reliefs persistently also may face restrictions on their access to certain tax reliefs.
A new criminal offence of failing to declare offshore income and gains (which will not require an intention not to declare the income or gains to be proved) will be introduced. The criminal offence of failure (by a corporate) to prevent facilitation of tax evasion is likely to be introduced before 2017.
HMRC often take the view (notwithstanding the jurisprudence to the contrary) that a taxpayer cannot rely on a legal opinion as to the efficacy of a tax avoidance structure to avoid imposition of a penalty for an inaccurate return. The Government intends to consider the case for introducing a statutory definition of "reasonable care" in avoidance penalty cases, so as to prescribe that reliance on generic legal advice that has been received via the promoter of the structure will not suffice.
Graeme Nuttall, OBE, Fieldfisher LLP
The existing array of measures to promote employee share ownership and employee ownership remain intact, and so this amazing era for the growth of ESO and EO continues. But there is a Back to the Future theme in Budget 2016 with the reintroduction, in effect, of taper relief for some employees and the Chancellor reminding us why we have employee shareholder status.
The reduction in capital gains tax rates to 10% and 20% (except for residential property and carried interest) will encourage share ownership generally. Many at successful employee-owned companies, such as Gripple Limited, were upset by the loss of the 10% CGT effective rate when taper relief was withdrawn in 2008. An employee with gains (exceeding the annual exemption) will from 6 April 2016 again pay tax at 10% if the gains fall within the unused part of his or her basic rate band.
Nick Clegg, as Deputy Prime Minister, was in the news for championing employee ownership in 2012. ESS meant George Osborne also hit the headlines. His "shares for rights" idea was presented as a "radical change in employment law" and his 2012 Conference Speech did say it was designed for start-ups. Only 16 out of 139 responses to the consultation document agreed. Many assumed ESS was really meant as a way to allow private equity to incentivise key individuals who were unconcerned about the loss of some employment rights. Exempt gains from employee shareholder shares issued from 17 March 2016 will now be capped by a lifetime limit of £100,000. The Chancellor is once more reminding us that this relief provides "vital flexibility for early stage firms".
Andrew Prowse, Fieldfisher LLP
Listening to the Chancellor's gloss on the economic situation, I lost interest. As it turned out, the loss of interest was a key business announcement, as was an interest in losses...
Restrictions on interest deductions for large companies, forecast to raise £1bn a year, will disproportionately impact some sectors - certainly real estate (the bogeyman of the Budget, again) and probably private equity. The group ratio rule is critical and must ensure genuine third party debt interest [(eg third party debt entirely within a UK group)] is unaffected. Implementation in 2017 seems like breakneck speed.
The unprincipled tax-grab on large businesses with losses (sorry, modernisation of loss relief), forecast to raise £400m a year, will make it harder for those businesses to recover from the events which caused the losses and may discourage riskier and cyclical investment through the UK. Changes allowing more flexible use of losses were welcome, however.
The reduction in capital gains tax to 20% (except for real estate and private equity of course), coupled with significant widening of entrepreneurs' relief, should attract more fundraising for SMEs. Angel investors and crowd-funders will be pleased, as will smaller investors who would not meet the existing ER tests (mancos, blocked last year, turned out to be trailblazers...). The holding period, two years longer than for ER, will need to be taken into account by business owners.
Finally, the reduction in business rates, whilst not very exciting for tax lawyers, is great news for SMEs. Indeed, it was generally a good Budget for SMEs, at the expense of (some) big business.