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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The full text of the Bill to implement the Government’s plans to reform the law on making lasting powers of attorney (LPAs) in England and Wales has been published and has received its second reading in Parliament.

In previous bulletins we have reported on the modernisation of LPAs, focusing mainly on the idea of creating a digital service to process LPAs. Following the consultation last year, a Private Member’s Bill was introduced by Stephen Metcalfe MP which has been published recently.

The Powers of Attorney Bill will allow the following:

1. Allow regulations to provide for different ways to make an LPA depending on whether this is done digitally or on paper, or a mix of the two.
2. Ensure only the donor can apply to register the LPA.
3. Provide for regulations to set out identity verification requirements that must be met for an application to register an LPA to be accepted.
4. Require the Office of the Public Guardian to notify the parties when an application to register an LPA is complete and the registration process is starting.
5. Enable the Office of the Public Guardian to operate a triage system for certain types of objection.
6. Widen the group of people who can lodge an objection, so that it includes third parties not named in the LPA.
7. Provide for new forms of evidence of the LPA to be created and accepted and for the electronic form of the LPA as registered to be evidence of the LPA.

The Bill will further amend s.3 of the Powers of Attorney Act 1971 to enable chartered legal executives to certify copies of powers of attorney. Currently, certified copies can be signed only by the donor, a solicitor, a notary or a stockbroker.

The Bill will be scrutinised to ensure that the moves to secure the benefits of digitalisation do not inadvertently exclude any of those who might benefit from being able to execute an LPA. 

Comment

Making LPAs easier to create, and modernising the way in which individuals can access the service, may encourage more people to think about creating an LPA. This can only be a good thing for the industry, as these are vital for allowing families to be able to deal with the affairs of people who can no longer do it for themselves. It also allows opportunities to improve safeguards against fraud, abuse and undue pressure on the most vulnerable of individuals.

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There is still a need to register existing and new trusts through the online Trust Registration Service. This article will provide a general overview of the types of trust that require registration.

Since 2017, HMRC have required any tax-paying trusts to be registered with them through the online Trust Registration Service (TRS). The latest UK Money Laundering Regulations extended this requirement to include most non-tax-paying trusts.

All UK express trusts and some non-UK express trusts are required to register on the Trust Registration Service, unless explicitly excluded from registration (‘excluded express trust’).

An express trust is a trust created deliberately by a settlor, usually in the form of a document such as a written deed or declaration of trust. This ‘declaration’ can be written or oral. Express trusts can be created to take effect during the settlor’s lifetime or on death (by will).

UK and non-UK trusts with a liability to UK taxation are required to register, even if not required to register as registrable express trusts.

If a trust falls within one or both of these categories, the trustees must register the trust with the TRS and provide certain information on the trust.

Below is a table of common types of trusts and their likely registration requirements. This is not a comprehensive list of trusts and a general overview only. Please refer to the HMRC Trust Registration Service Manual here for full guidance on specific conditions whereby a trust may be required to register:

*Any trust with a liability to UK taxation is required to register unless stated otherwise.

Type of Trust	Trust Description	Does the trust have to register?
Bare trust	Assets in a bare trust are held in the name of a trustee. However, the beneficiary has the right to all of the capital and income of the trust at any time if they’re 18 or over. This means the assets donated by the settlor will always go directly to the intended beneficiary.	If a bare trust is an express trust it should register on TRS. There are several exclusions that may apply to common bare trust arrangements. *They are not required to register for taxable purposes.
Bereaved minor trust and 18-to-25 trust	Trusts for the benefit of a bereaved child under 18 or, in the case of an 18-to-25 trust, for a bereaved person under 25. These trusts are usually set up under the will of a deceased parent. They are used as a means for a parent to pass assets to a child whilst (for 18-to-25 trusts) being able to specify the age at which the child becomes absolutely entitled to the whole of the assets.	These trusts set up under a will do not have to register on TRS as registrable express trusts. Bereaved minor trusts may also arise in England and Wales through the intestacy of the deceased parent. In those cases, they are not required to register.
Discretionary trust	Where trustees have discretion to make decisions about how to use capital and income of the trust.	In general, discretionary trusts should register on TRS. However, there are several exclusions that could apply, depending on the terms and use of the trust.
Employee Benefit trust (EBT)	A trust (usually a discretionary trust) set up by an employer for the benefit of their employees. An EBT is generally used as a vehicle in a scheme to reward and motivate employees. The benefits may be pensions, sick pay, a share of profits, shares or almost anything the employer chooses.	In general, EBTs should register on TRS, unless the particular circumstances mean that one or more of the exclusions from registration applies.
Express trust	A trust created deliberately by a settlor, usually (but not always) in the form of a document such as a written deed or declaration of trust. Most trusts are express trusts, including most of the other types of trusts included in this table.	The registration consequences will depend on what type of trust it is.
Interest in Possession trust and Lifetime trust	A trust where the trustees must pass on all trust income to the beneficiary as it arises (less any expenses), or where the beneficiary has a right to use the trust property. The beneficiary is referred to as having an ‘interest in possession’ in the income of the trust or in the trust property.	In general interest in possession trusts should register on the TRS. However, there are several exclusions that could apply, depending on the terms and use of the trust.
Non-UK resident trust	Trust where the trustees are not resident in the UK for tax purposes.	In general, non-UK trusts do not have to register on TRS, however they do have to register if they acquire UK land or, in some circumstances, enter into a business relationship with a UK business.
Pilot trust	Trusts that are set up holding a nominal amount. They are typically set up for potential future use, when more substantial amounts will be added, but in practice they remain dormant until that time.	Trusts which hold not more than £100 and were already in existence before 6 October 2020 are not required to register. Conversely, trusts created on or after 6 October 2020, or that have funds added after that time so that the trust now holds more than £100, are required to register.
Protective trust	Trusts set up to hold assets for the benefit of a beneficiary whilst protecting the assets in the event that certain conditions specified in the trust deed are breached.	In general, most protective trusts are required to register. However, there are several exclusions that could apply, depending on the terms and use of the trust.
Statutory trust	A trust set up automatically under the terms of legislation.	Statutory trusts are not express trusts and therefore do not generally have to register on TRS.

Trusts where registration is not required:

• Charitable trust
• Child Trust Funds and Junior ISAs
• Disabled person or persons trust (unless for taxable purposes)
• Unit trusts (authorised and unauthorised)

There is still a need to register any outstanding and newly created trusts. If you require further guidance on this, 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.

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).

Book your appointment here 

To request further information or any queries please contact:

ben.ward@technicalconnection.co.uk or web.enquiries@technicalconnection.co.uk

In Hopes v Burton [2022] EWHC 2770 (Ch) the Court agreed to set aside two deeds of appointment thus saving the trustees a potential tax liability of over £400,000.

Court cases involving life policy trusts are not that common, and since the best learning method is to learn from (preferably someone else’s) mistakes, this recent decision is most welcome.

The case concerned two deeds of appointment made in 2013 and in 2014 by the trustees of a trust (“the trust”) made by Hilary Marsden (formerly known as Hilary Burton – “the settlor”) in 1992 in respect of a policy held by her with Skandia Life.

The trust in question was a “typical” trust offered by life offices until 2006: a flexible power of appointment interest in possession trust, with Box A “Possible Beneficiaries” and Box B “Immediate Beneficiaries”. Four Immediate Beneficiaries were named. The settlor appointed her then accountant and solicitor as additional trustees. The settlor died in 2004, but it was only in 2012 that the Skandia policy came to light. The value of the policy was then £2.15 million. The original trustees agreed to step down and new ones were appointed.

In 2013, the new trustees met with a solicitor to discuss the trust and a deed of appointment was drafted in favour of several beneficiaries. The intention was to keep some of the beneficiaries’ interests intact, remove one of the immediate beneficiaries and create a discretionary trust in respect of another part of the trust fund. It was apparently understood that the appointment of one share would create a discretionary trust and would have inheritance tax (IHT) consequences, the tax to be paid from that share. In 2014, another deed of appointment was executed to appoint one part of the trust fund also on discretionary trust.

In 2017, the trustees took advice from specialist tax counsel, Emma Chamberlain. Her advice in summary was that:

(1) the 2013 appointment did not leave the interests of the three existing beneficiaries as they were (as had been intended), but instead revoked the previously qualifying interests in possession for all four funds, and, HMRC were likely to argue, created new non-qualifying interests in possession; and

(2) because both the appointments were revocable, the Immediate Beneficiaries retained the possibility of benefitting from the trust fund in the future, and the appointments were likely to be treated as gifts with reservation of benefit.

As to the amount of tax payable in consequence of the appointments, the trustees were advised that there was an immediate charge of £365,000, plus interest of over £68,000. In addition, ten-yearly IHT charges would apply and appointments out of the trust fund would be subject to exit charges.

The application (claim) to set aside the two “offending” deeds was made by the trustees in 2021. The main ground was that the trustees made an operative mistake as to the substance or effect of the deeds. In particular, the 2013 appointment was said to have mistakenly (and unnecessarily) included provisions which terminated existing interests in possession and appointed new ones in their place, when there was no intention to do so.

After considering the evidence, in particular the subsequent actions of the trustees (who made capital distributions which they could make under the original trust but not under the deed of appointment) and the relevant case law, the judge decided that the 2013 appointment indeed created radically different interests held by the immediate beneficiaries, and that the trustees were mistaken in doing so.

This mistaken belief was in his judgment “sufficiently serious as to make it unconscionable not to set aside both appointments”.

Comment

This case perfectly illustrates the dangers of making changes to beneficiaries under pre-22 March 2006 flexible interest in possession trusts (*). And as can be seen from the above, even the involvement of solicitors does not necessarily save you from getting it wrong (compounded in this case by different members of the firm dealing with different aspects of the case and clearly not communicating sufficiently well). Thankfully, the trustees in this case managed to avoid the eye watering tax bill, but bringing such an application to Court must have cost a substantial sum as well.

Remember that in the case of a mistake, there are two possibilities of a remedy – either to rectify the deed or to rescind (set aside) the transaction. In both cases, a Court application will be needed. Obviously, the Court will examine any evidence and decide on the facts of the case. But nothing is ever guaranteed, so it’s best not to get it wrong in the first place.

(*) those who need a refresher of the rules on this can find these here.

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The audio-visual tax reliefs are intended to support and incentivise the production of culturally British film, animation, high-end TV, children’s TV and video games.

Film tax relief has been around longer than any other creative relief in the UK. The original film tax relief was introduced in 1992 (Section 42 of the Finance (No. 2) Act 1992). And much has changed, even since the introduction of the current iteration of film tax relief, introduced in 2007. The Government is now seeking to support the growth of the audio-visual sectors. 

There are eight creative industry tax reliefs covering film, animation, high-end TV, children’s TV, video games, theatre, orchestra and museums and galleries. Within these eight reliefs, there are five audio-visual reliefs: film tax relief (FTR), animation tax relief (ATR), high-end TV tax relief (HETV tax relief), children’s TV tax relief (CTR) and video games tax relief (VGTR). This consultation focusses on the five audio-visual tax reliefs. The package of reforms proposed in this consultation aims to simplify and modernise the reliefs and ensure they boost growth in the audio-visual sectors whilst remaining fiscally sustainable.

The objectives of the review are to ensure that:

• The UK has modern audio-visual tax reliefs that enhance the UK’s audio-visual industries;
• The reliefs maximise the contribution of the audio-visual industries to the growth of the UK economy;
• The reliefs remain affordable, with additional costs of the reforms are consistent with the Government’s fiscal rules and commitment to sustainability in the public finances;
• The reliefs are straightforward to administer and that the reformed audio-visual tax reliefs should not significantly increase administrative burdens for businesses or HMRC;
• Current and future commercial needs are anticipated without significant future changes being required;
• The reforms do not create additional avoidance opportunities.

Reforms proposed in the consultation include simplifying the film and TV reliefs (FTR, ATR, HETV tax relief and CTR) by merging them into one tax credit scheme, modernising the criteria for HETV tax relief and defining a documentary in legislation. It covers the EU legacy requirements currently embedded in VGTR and the reform of all of the audio-visual reliefs to above the line, refundable expenditure credits.

The Government is interested in feedback from a wide range of sources, including individuals, companies, representative and professional bodies. This consultation closes at 11:30am on 9 February 2023. It expects reforms to the audio-visual reliefs to be implemented in Spring 2024, but will confirm the timing of implementation after the consultation has ended.

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Even though HMRC have not actioned penalties for not registering existing trusts by 1 September 2022, there is still a need to register existing and new trusts. In this bulletin we remind you of the current need to register outstanding trusts.

Since 2017, HMRC have required any tax-paying trusts to be registered with them through the online Trust Registration Service (TRS). The latest UK Money Laundering Regulations extended this requirement to include most non-tax-paying trusts. It is the responsibility of the trustees to register the trust on the TRS.

The requirement to register the trust was initially given a deadline of 1 September 2022. Although this deadline has passed, HMRC has stated they will currently not fine those who have not registered by the 1 September 2022 deadline. However, there is still a need to register your trusts and the following information will remind you of the requirements.

Any existing non-taxable trusts must be registered as soon as possible. Any new trust created from 4 June 2022 must be registered within 90 days of being created. HMRC can issues fines of up to £5000 where the trustees fail to register the trust. However, HMRC have confirmed that, in recognition of the fact that the registration requirements are new and an unfamiliar obligation for trustees, there will be no penalty for a first offence, either for failure to register or late registration, unless this is due to deliberate action by the trustees.

What this means for the trustees is that, should HMRC become aware of a trust which has not been registered by the relevant deadline, a warning letter can be issued. If issued, trustees must register the trust within the deadline stipulated in the letter, otherwise a fine may be issued to the trustees. Trustees need to be made aware that if they receive such a penalty, this will be their personal liability.

Where deliberate non-compliance takes place, each case will be looked at individually by HMRC.

Another point to remember, for those trustees who may think that they don’t need to register their trust until they receive a letter from HMRC, is that, without a proof of registration, trustees of registrable trusts will not be able to deal with financial institutions or professional advisers.

There is still a need to register any outstanding trusts. If you require further guidance on this, 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.

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. Having the lead trustee attend will incur a fee of £60 (£50 plus VAT), which will be automatically charged to your Partner account.

Book your appointment here. 

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HMRC has updated its guidance on working through an umbrella company. Recent changes to the off-payroll working rules (IR35) will have resulted in many former contractors becoming employed by umbrella companies.

An umbrella company is, normally, a company that employs a temporary worker (an agency worker or contractor) on behalf of an employment agency. The agency will then provide the services of the worker to their clients.

Most umbrella companies employ workers using an employment contract which will set out their terms and conditions. This means the company must comply with employment law.

If a worker is employed by an umbrella company, the tax rules on agency workers and off-payroll working (IR35) will not apply to that worker.

The umbrella company will pay the worker for the work they do for the employment agency’s clients and deduct any income tax and employee National Insurance contributions due under PAYE from their pay.

The end client pays the agency for the worker’s services. The agency deducts a fee for placing the worker with the end client and pays the rest of the money (sometimes known as the assignment rate or the limited company rate) to the umbrella company.

HMRC’s guidance has been updated to show how umbrella company workers are engaged. It has new sections to help workers understand their pay and employment rights and check that their tax and National Insurance is correct. Please also see our earlier Bulletin Working through an umbrella company for more information.

Currently, there is no means by which umbrella companies themselves are regulated, as employment agencies and employment businesses are. Although as employers they are still required to comply with wider employment and tax law.

If a non-compliant umbrella company causes detriment to a worker, the Employment Agency Standards (EAS) cannot take enforcement action on behalf of the worker. It would be up to the worker to enforce their rights via an employment tribunal.

The Government therefore published a consultation last November, the intention being to bring umbrella companies into scope of the framework that regulates employment agencies and employment businesses which is currently enforced by the EAS. This will require primary legislation. Please see our earlier Bulletin. The evidence gathered through this consultation will inform the ongoing policy development of potential options aimed at better protecting workers. It is intended to ensure that the Government is developing regulations based on the most up to date market practices. Future regulations will aim to protect workers’ rights and continue to allow businesses to operate flexibly. We await the outcome.

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