The pensions taxation changes announced in the Budget along with previously announced flexibilities and scheme amendments go a long way to resolving the problems.

Jeremy Hunt announced dramatic changes to pensions taxation in his 15 March 2023 Budget. His apparent motive was to help the senior NHS workforce – preventing them from retiring early or working less due to the disincentives created by annual and lifetime allowance (LTA) charges. The Chancellor, however, decided to extend the tax benefits to everyone and, by abolishing the LTA entirely, went much further than anyone expected or was necessary than required to solve the problem.

The Labour party have instantly hit back with a commitment to reverse the LTA changes but, crucially, they have singled out NHS workers as an exception. We will have to see exactly what they mean in terms of that and now focus on the immediate changes.

Higher earning NHS consultants and GPs have been hit with the double whammy of both regular annual allowance charges and the prospect of LTA charges when they come to take their benefits.

Clearly, the abolition of the LTA resolves one of these issues entirely. They can now build up as much pension as possible without fear of an LTA charge. The change removes a significant disincentive to continue working.

However, the annual allowance was always the bigger issue. The increase from £40,000 to £60,000 will definitely help with the problem and ensures many consultants and GPs will not have to face regular annual allowance charges. There are still likely to be spikes in pensions inputs about the annual limit caused by the NHS pay scales and whenever they take on additional pensionable responsibilities. The higher annual allowance coupled with, as time goes by, potentially more carry forward available, should, however, mean that annual allowance excesses are far less frequent. To breach the £60,000 annual allowance in a defined benefit scheme would mean an above inflation pension increase of over £3,750 in a year, which is a considerable sum to accumulate with the full tax advantages.

For very high earners there is still the issue of tapering. However, the increase in the Adjusted Income limit will move more NHS workers out of scope. Everyone will have a higher annual allowance with the increase in the minimum tapered annual allowance to £10,000 if adjusted income reaches £360,000 or more. Many NHS workers in this bracket are likely to have an element of private earnings and in many cases can control their level of taxable income by using limited companies to perform their private duties.

In addition to the changes announced in the Budget we have also recently seen new retirement flexibilities confirmed and technical changes to resolve some pension input issues caused by inflation. These are covered in detail in our recent Bulletin.

The ability to take pension benefits from the 1995 section of the scheme at age 60 and continue to accrue benefits in the 2015 scheme without fear of an LTA charge really should provide a great incentive for doctors to avoid retiring at 60. Whether the tax benefits in themselves are enough to keep the workforce motivated and working when, in many cases, they will already have a comfortable pension built up is another question.

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The Resolution Foundation has joined the Institute for Fiscal Studies in calling for a cap on the pension commencement lump sum.

Earlier this month, the Institute for Fiscal Studies (IFS) published a report on the taxation of pensions which proposed for a reduction in the maximum pension commencement lump sum (please see our earlier Bulletin). Now the Resolution Foundation has joined in the cash-cutting call in a new paper, ‘Post pandemic participation’. As the title suggests, the focus is on workforce participation in the wake of the pandemic. The employment rate for 16-64-year-olds is down from 76.6 % in December-February 2020 to 75.6% in the final three months of 2022.

The report has three key proposals related to pensions, all aimed at encouraging continued labour force participation among older workers:

1. Minimum pension age. The paper notes that the Government’s emphasis on State Pension Age (SPA) ‘has led to the incoherence of the past decade, with politicians raising the SPA (delaying retirements for those on lower incomes with lower longevity) while proactively making it easier to access tax-relieved private pension wealth (disproportionately held by richer households with longer longevity) earlier.’ To address this, the paper says that ‘Policy makers should consider further raising [the minimum pension] age, or at least slowing the rate at which money can be withdrawn before SPA.’
2. Pensions commencement lump sum. In the paper’s view, the pension commencement lump sum ‘encourages early retirements far before the SPA for wealthy individuals, at considerable expense to the taxpayer.’ A cap is proposed, but no numbers are given.
3. Defined benefit schemes and employment re-entry. Some defined benefit (DB) pension schemes (e.g. the civil service pension scheme for those who were members before April 2015), have ‘abatement’ rules which can result in the pension of a retiree being reduced if they are re-employed. The paper regards this as an active discouragement to returning to employment which should be addressed.

Comment

Our immediate thoughts are much the same as those we had on the IFS paper – these might be logical policies, but it will be a brave politician that proposes them anywhere near a general election.

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Following recent announcements from Michael Gove in the Press and in an interview on Sky, saying that he wants to abolish the leasehold system, he has now provided a formal update to Parliament

Back on 7 January 2021, Robert Jenrick, the then Housing Secretary, announced that leasehold reform would be tackled through two pieces of legislation Please see our earlier Bulletin.

The Leasehold Reform (Ground Rent) Act 2022 came into force on 30 June 2022. This Act fulfilled the commitment to “set future ground rents to zero.” The provisions apply only to new lease agreements. New leases of retirement properties are in scope, but not before 1 April 2023.  

According to the latest Parliamentary update, on 20 February 2023, Michael Gove, Secretary of State at the Department for Levelling Up, Housing and Communities said:

“We hope, in the forthcoming King’s Speech, to introduce legislation to fundamentally reform the system. Leaseholders, not just in this case but in so many other cases, are held to ransom by freeholders. We need to end this feudal form of tenure and ensure individuals have the right to enjoy their own property fully.”

According to the update, future legislation will also:

• Reform the process of enfranchisement valuation used to calculate the cost of extending a lease or buying the freehold.
• Abolish marriage value.
• Cap the treatment of ground rents at 0.1% of the freehold value and prescribe rates for the calculations at market value. An online calculator will simplify and standardise the process of enfranchisement.
• Keep existing discounts for improvements made by leaseholders and security of tenure.
• Retain the separate valuation methodology for low-value properties known as “section 9(1)”.
• Give leaseholders of flats and houses the same right to extend their lease agreements “as often as they wish, at zero ground rent, for a term of 990 years”.
• Allow for redevelopment breaks during the last 12 months of the original lease, or the last five years of each period of 90 years of the extension to continue, “subject to existing safeguards and compensation”.
• Enable leaseholders, where they already have a long lease, to buy out the ground rent without having to extend the lease term.”

(‘Marriage value’ assumes that the value of one party holding both the leasehold and freehold interest is greater than when those interests are held by separate parties. This announcement means that marriage value will be removed from the premium calculation.)

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A new law is intended to give all workers the legal right to request a predictable working pattern.

The Government has supported Blackpool South MP Scott Benton’s Workers (Predictable Terms and Conditions) Bill, which will apply to all workers and employees including agency workers.

If a worker’s existing working pattern lacks certainty in terms of the hours they work, the times they work or if it is a fixed term contract for less than 12 months, they will be able to make a formal application to change their working pattern to make it more predictable.

This Bill gives people a right to ask their employers to consider requests.

Subject to parliamentary approval, all workers and employees will have this new right once it comes into force, however, they must first have worked for their employer a set period before they make their application. This period will be set out in regulations and is expected to be 26 weeks. Given the proposals aim to support those with unpredictable contracts, workers will not have had to have worked continuously during that period.

Employers do have the option to refuse a request for a more predictable working pattern on specific grounds, such as the burden of additional costs to make changes, or there being insufficient work at times when the employee proposes to work. Workers will be able to make up to two requests a year.

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Under plans set out by the Government on 1 February, it will seek to regulate a broad suite of cryptoasset activities, consistent with its approach to traditional finance.

There is no universal definition of a cryptoasset or related terms such as a digital asset or virtual asset, but there is increasing consensus on the basic elements of the definition in UK and overseas legislation, and in global standards. The Financial Services and Markets Bill 2022 (FS&M Bill) includes the following definition of cryptoasset for the UK’s financial services regulatory framework, to be introduced into FSMA:

“Cryptoasset” means any cryptographically secured digital representation of value or contractual rights that— (a) can be transferred, stored or traded electronically, and (b) that uses technology supporting the recording or storage of data (which may include distributed ledger technology).”

The new rules, which are now subject to consultation, will place responsibility on cryptoasset trading venues for defining the detailed content requirements for admission and disclosure documents.

The proposals will strengthen the rules around financial intermediaries and custodians – which have responsibility for facilitating transactions and safely storing customer assets.

As part of this approach, the consultation will seek views on improving market integrity and consumer protection by setting out a proposed cryptoasset market abuse regime.

Proposals are centred around a number of important cryptoasset activities – including exchange activities, custody activities and lending activities, which the Government is intending to bring into the regulatory perimeter for financial services.

For each activity, the consultation sets out key design features of the regime covering themes such as prudential requirements, data reporting, consumer protection, location policy and operational resilience.

The consultation paper also proposes regimes for a range of cross-cutting issues which apply across cryptoasset activities and business models, including market abuse and cryptoasset issuance and disclosures.

In addition, to address industry concerns about the small number of Financial Conduct Authority (FCA) authorised cryptoasset firms who can issue their own promotions, HM Treasury is also introducing a time limited exemption. Cryptoasset businesses that are registered with the FCA for anti-money laundering purposes will be allowed to issue their own promotions, while the broader cryptoasset regulatory regime is being introduced.

The consultation will close on 30 April 2023, after which, the Government will consider feedback and work to set out its consultation response. Once legislation is laid, the FCA will consult on its detailed rules for the sector.

Note that the Government is also currently legislating in the FS&M Bill to introduce a regime that will allow for the regulation of fiat-backed stablecoins which are used for payments, similar to that for other payment methods given that these stablecoins have the potential to become widely used as a form of payment.

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The latest Guidance documents clarify when HMRC will issue the trustees with a penalty charge for not registering a trust or not keeping the entry up to date, how to ask for a review or appeal the charge and how to pay it.

Our earlier Bulletin explained the penalty system for not registering a trust or not keeping it up to date. This followed HMRC’s announcement of the level of fine being set at £5,000 but also stating that they will not penalise trustees for first-time offences.

The new Guidance notes now have more detail of the penalty regime. There are three Guidance notes dealing with:

• HMRC (when a penalty will be issued);
• HMRC (reviews and appeals);
• HMRC (how to pay).

The guidance confirms that if you’re a trustee of a trust within the scope of the trust registration service (TRS), and you either fail to register your trust or fail to keep the information held on the TRS up to date, HMRC can charge you a fixed penalty of £5,000. They will not charge any interest on penalties.

However, given that registering a trust is a new requirement, HMRC recognise that trustees may not be familiar with the process. They will, therefore, not charge a penalty if they find out that you’ve failed to register or to maintain a trust, as long as:

• this was not deliberate behaviour;
• you take action to correct this within the time limit HMRC has set.

HMRC will only charge the trustees a penalty if the failure to register or update was deliberate.

HMRC will decide on whether to charge penalties on a case-by-case basis.

Upon receipt of a penalty letter from HMRC, the trustees can simply pay the penalty charge or if they do not agree with a penalty charge, they can:

• ask HMRC to review their decision; or
• make an appeal to a tribunal against a decision.

A review request must be sent directly to HMRC and must reach it within 30 days of the date the penalty letter is issued. HMRC’s reply will normally be sent within 45 days of receipt of the taxpayer’s request. HMRC will not try to collect the penalty while it is reviewing the decision.

Taxpayers who do not want to ask for a review, or whose request for a review is rejected, can appeal to a tribunal within 30 days of the date of the penalty decision letter or the letter announcing that a review has been rejected. In the latter case, however, HMRC reserves the right to collect payment of the penalty while the appeal is in.

Comment

So far, we are not aware of any penalties having been issued for failure to register or failure to keep the Register up to date. Nevertheless, given the detail of the Guidance notes, this is clearly something that has been on HMRC’s mind and indicates they are preparing to use their powers. Trustees who have not yet registered their registrable trust on the TRS should be reminded of their obligation to do so. New registrable trusts have 90 days from the trust’s creation to register. The original deadline for existing trusts was 1 September 2022. Ideally, trustees should not wait for a nudge letter from HMRC before registering. Prompt registration will avoid having to explain the reasons for any failures and of course the risk of penalties.

Services available from Technical Connection

TRS Mezzanine service

If you require further guidance registering trusts, there are the following resources available:

On Techlink, we have created a series of documents and videos to help you guide your clients through the registration service, and these are accessible here. 

In addition to the online guides, we provide a comprehensive TRS Mezzanine service which can you book here.

This is an opportunity for either you or one of your support team to receive step by step guidance on how to create a Government Gateway Organisation ID and step by step guidance on how to complete HMRC’s Trust Registration Form. Through screen sharing over Zoom one of our consultants will talk you through the completion process.

Additionally, you can choose to have the Mezzanine with one of your lead trustee clients attending.  You should include their name and email address on the booking form. This Mezzanine incurs a fee of £60 (£50 plus VAT).

Please note that these Mezzanines are specifically designed to help guide you or your client through the administration of the TRS, as such the attending consultant will not be available to answer technical questions regarding the trust. 

If you have a technical question about a trust, our ASK service is available as an add on subscription to Techlink.

Book your appointment here.

TRS Agency Service

As part of our support framework surrounding the trust registration requirements, we are now providing a TRS Agency service. Acting on behalf of your client we can register the trust ourselves. The use of our Agency Services incurs a fee of £200 for up to 60 minutes on receipt of Technical Connection’s invoice.

To book the TRS Agency Service or for further details and any other queries, please contact via email at ben.ward@technicalconnection.co.uk

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The Government has published a summary of responses to the consultation on raising standards in tax advice: protecting customers claiming tax repayments.

The Low Income Tax Reform Group and HMRC have previously published warnings about the use of agents to claim tax rebates, in particular High Volume Agents (HVAs). HVAs are private companies that deal with large numbers of clients and make requests for repayments, or submit returns that generate repayments, on the taxpayer’s behalf. Please see our earlier Bulletin.

In June 2022, the Government published a consultation to consider ways to better protect taxpayers from repayment agents who take excessive amounts of their tax repayments. Please see our Bulletin on this. Following the responses, the Government says that it will take further steps to tackle the issues outlined in the consultation, including:

1. Legislate to render void assignments of income tax repayments;
2. Immediately introduce new transparency requirements for agents in the HMRC Standard for Agents;
3. Explore introducing mandatory pre-contractual disclosure forms, and strengthen checks on repayment agents;
4. Undertake further work to strengthen the evidence that a claim has been made with a taxpayer’s consent before processing it so we can improve the way in which taxpayers authorise their agent;
5. Introduce a new requirement for repayment agents to register with HMRC as part of wider work exploring options to enhance the regulatory framework for tax advice and tax services.

You can read the full responses here.

Comment

Clients need to be made aware of the potential of this type of fraudulent activity. This might also provide an opportunity to remind clients how to make a tax reclaim from HMRC, in particular higher rate tax on a (relief at source) pension contribution made by a higher rate taxpayer. Please see HMRC’s guidance on how to claim a tax refund.

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The Department for Education has announced increased maintenance loans for students in England.

If the headline of its press release is to be believed, the Department for Education (DfE) has announced a ‘Cost of living bonus for students’. This has two elements, one of which was already known:

1. The maximum (and de facto minimum) tuition fee will remain at £9,250 for the 2023/24 and 2024/25 academic years. While good news for students, the freeze is bad news for universities which have seen their tuition fees for UK students frozen since 2017. Expect more efforts to recruit foreign students and more kickback from a Home Office worried about migration numbers.
2. Means-tested maintenance loans will be increased for the 2023/24 academic year by 2.8%.

The 2.8% maintenance loan increase is well below the expected rate of inflation for September 2023 (6.9% according to the Office for Budget Responsibility (OBR) projection) and follows on from a 2.3% rise in September 2022. Look back further and the 2023/24 maintenance loan numbers will be just 8.4% above those for 2020/21. To keep pace with inflation (including that OBR projection), the increase would need to be over 21%.

A recent House of Commons briefing paper suggested that the real terms cuts in maintenance loans are ‘likely to be around 7% in 2022/23 and 4% in 2023/24’. It included an assessment that ‘The maximum support in 2023/24 will be around £1,100 less than in 2021/22 in September 2022 prices if adjusted by CPI inflation.’

Although the loan limit is creeping up, there was no indication in the ministerial statement of any rise in the means-testing parental income threshold, which has been stuck at £25,000 since 2008/09. Maintenance loan entitlement is reduced by 14.42% of parental income over the threshold, subject to minimum loans for 2023/24 ranging from £3,698 (living at home) to £6,485 (living away from home and studying in London).

Comment

The media focus on student debt often overlooks the impact of increasingly inadequate maintenance loans. The issue is exacerbated by the fact that parents are under no legal obligation to pay over their notional means tested maintenance contribution. The result can often be more student borrowing that is not from the Student Loans Company and therefore does not disappear if it is still outstanding after 30 years. This is one more factor to consider when planning university funding.

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The Association of Taxation Technicians (ATT) and Chartered Institute of Taxation (CIOT) are reminding cryptoasset investors to include their gains (and losses) in their 2021/22 tax returns as the 31 January deadline looms.

Cryptoassets, such as Ethereum, Bitcoin and non-fungible tokens, are as much subject to income tax and capital gains tax (CGT) as any other chargeable asset. When an investor realises the value of a cryptoasset for tax purposes and makes a profit over a certain amount (currently £12,300), they are obliged to pay CGT by the 31 January following the end of the relevant tax year. Gains made in 2021/22 therefore need to be reported by 31 January 2023 with all necessary tax paid. Likewise, if a loss has been realised, this can only be offset against other gains from the same or future years if they are reported to HMRC. Those who are trading in cryptoassets, or receive them for services they carry out, will be subject to income tax on their profits. Please see our earlier Bulletin.

According to the ATT and CIOT, HMRC has identified that there is a risk of underreported gains in this area and have a special focus on crypto compliance.

The concern of the ATT and CIOT is that many investors simply won’t be aware of these obligations or of how wide the range of circumstances are in which gains can be ‘realised’ for tax purposes. The phased reduction of the CGT annual exemption from £12,300 to £6,000 on 6 April 2023 and to £3,000 from 6 April 2024 will only make the issue more acute.

Gary Ashford, chair of the joint ATT/CIOT Crypto Assets Working Group, has warned that not only can cryptocurrency investments trigger CGT liabilities that are not obvious to the investor, but tax can be payable even where the investor does not think thar their crypto investments have been profitable. Selling, lending or ‘staking’ cryptoassets – or potentially even just transferring assets between crypto sites and portfolios – will usually trigger a disposal in the tax year in question, even if no cash is taken out and even if the portfolio now shows that there would be losses if all investments were cashed now.

According to Mr Ashford, many low-income taxpayers will have invested in these assets but barely a third will be professionally represented or have a good understanding of CGT, nearly half having not seen any information/guidance on the subject – 84% of cryptoasset owners won’t have sought tax advice.

In addition, people resident in the UK but with a long-term ‘domicile’ elsewhere (non-UK doms) who are currently claiming the remittance basis may not realise that HMRC regard any crypto investments held by UK residents as UK situs assets, generating income and gains fully taxable in the UK. Also, if they use offshore income and gains to acquire a crypto portfolio they could well be making remittances and thus triggering UK tax charges at their highest rate of tax. Cryptoassets are chargeable for inheritance tax purposes too, so that is another aspect non-UK doms need to be aware of.

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HMRC has published guidance relating to completing a self-assessment tax return for a person up to their date of death.

For security reasons, personal representatives or executors cannot file a deceased taxpayer’s self-assessment tax return online for tax years up to the date of death. They must send paper returns.

Authorised tax agents can file the tax return online that covers the tax year in which the person died (6 April to the date of death). However, this can only be done after that tax year has ended.

The deadline to file a tax return online is either 31 January following the end of the tax year, or the deadline filing date on the notice to file letter, whichever comes later. Agents can also file returns online for earlier years.

Repayments are not made automatically for deceased taxpayers. The agent may need to call the bereavement helpline to action a claimed repayment. However, HMRC says that the tax return’s repayment section should still be completed in case HMRC reviews the record before contact.

This guidance relates to completing tax affairs for a person up to their date of death only.

Reporting tax on income and gains arising to a person’s estate after their date of death (in the administration period) must be done separately. Please see reporting an estate to HMRC.

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