One thing’s for sure. When chancellor George Osborne delivers his latest budget next week, he will wax lyrical on tax avoidance.
But nine years after Gordon Brown promised a crackdown, and more than five years after then treasury secretary Danny Alexander pledged to root out the exotic schemes used by the rich, the most popular of them all has yet to be outlawed.
The employee benefits trust was the mechanism used by the former Rangers FC to boost player earnings with minimum tax. Between 2001 and 2010 it paid out £47. 6m to players and staff in the form of tax-free loans.
After losing the initial case at a tax tribunal in Edinburgh, HM Revenue & Customs won it on appeal, but last week the Rangers liquidators were given leave at the Court of Session to take it to the Supreme Court. So it will drag on until at least spring 2017.
Meanwhile well-heeled taxpayers, who were sold similar schemes by specialist tax firms, benefit from yet another delay in their day of reckoning.
“The Revenue is running a big risk in possibly losing the case,” says Aidan McLaughlin, partner at tax boutique McLaughlin Crolla in Edinburgh. “There are 40,000 taxpayers in these schemes, some of them have had accelerated payment notices from HMRC, but it gives taxpayers a lot of leeway. People are under pressure to settle, but they are still saying lets wait and see what happens in the Rangers case.”
In 2012 the coalition said it would bring in catch-all anti-avoidance legislation, and in recent times HMRC has been able to demand down-payments from users of suspect schemes which have yet to be formally outlawed. The firms which peddled the schemes, like Fife-based K2 which enabled comedian Jimmy Carr and more than 1000 others to shelter £168 m of tax, have disappeared.
“The days of the big schemes are over.” McLaughlin says.
But Elaine McInroy, tax specialist at Saffery Champness in Edinburgh, says: “No Budget is complete without yet another speech about the loss of tax to the Exchequer as a result of tax avoidance. We should expect more changes to tackle perceived abuses, although it is hard to guess what new areas will be targeted. There is a cultural and political shift occurring and we might expect further alignment of HMRC and the judiciary with public opinion.”
It is now the likes of Google and Amazon who are in the tax spotlight for their low tax bills on high UK revenues. But for all the protestations from government, the UK cannot act alone. McLaughlin says: “It is all about double tax treaties, which are a bit like trade treaties – they might take 10 years to renegotiate.”
McInroy says: “The reality remains that one man’s judicious tax planning is another’s immoral avoidance.”
So judicious and not over-rich taxpayers, those who are self-employed, run a small business, or own a property or two, will be hoping that such tax bolt-holes as remain will not be closed off.
Those who run small companies tend to take a low salary, leave cash in the company as profit, and pay it out when needed as a dividend. That’s because corporation tax on the profits is at 20%, half the top rate of income tax, and paying salary incurs a 13.8per cent national insurance levy.
Next month the tax on dividends will rise by 7.5%, but it will still be cheaper to use them rather than salary.
The company structure is also used by the self-employed as a home for their earnings, which can roll up into a profit. The company can be wound up, and a 10% capital gains tax paid, then another similar company created straight away to repeat the trick.
This wheeze is now under HMRC scrutiny, but McLaughlin points out the difficulty of closing such loopholes. “It has been suggested you can’t start another similar business within three years...that’s another 20 pages of legislation trying to define that.”
McInroy says: “Anyone contemplating winding a company up in the short term would be well advised to think about doing so before the end of the tax year.”
The big target last year was taxpayers who own a second property. “What you have had in the last 20 years is a lot of people cashing in equity and buying second homes,” McLaughlin says. But now stamp duty has been lifted by three per cent, on both sides of the Border, on higher-value homes, and mortgage interest relief is being phased out over four years.
“There are situations where you could end up with an economic loss and still be paying tax,” McLaughlin says.
But creating a company can come to the rescue again. “If you are buying several houses, you might as well use a company. You only pay 20% corporation tax, you can leave it in the company to roll up, and if you are moving a property from personal, ownership you’ll be paying a lower tax rate. Plus if the company buys the house from you, it is deemed to have today’s value – so in theory you could then sell a house you bought 30 years ago at no (capital gains) tax cost to the company.”
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