UK Tax Alert. Consultation on Introduction of a General Anti-Abuse Rule ( GAAR ) into UK Tax Law. What are the key features of the proposed GAAR?

Transcription

1 14 June 2012 UK Tax Alert. Consultation on Introduction of a General Anti-Abuse Rule ( GAAR ) into UK Tax Law In a Consultation Document, published on 12 June 2012, the Government has proposed the introduction of a GAAR into UK tax law targeted at artificial and abusive tax avoidance. The Consultation Document also contains draft legislation indicating the likely form of the GAAR, which is due to be enacted in Finance Act The Consultation Document follows the report of a study group commissioned by the Government and led by Graham Aaronson QC published in November 2011, and the announcement at Budget 2012 that the Government had accepted the study group s recommendation of a narrowly focused GAAR. For further details of the Study Group Report, please see our UK Tax Alert Study Group Recommends Introduction of a General Anti-Abuse Rule ( GAAR ) into UK Tax Law dated 22 November The introduction of a GAAR into UK tax law is clearly of interest to all UK taxpayers. In this Tax Alert we consider the draft legislation and the Consultation Document in more detail. For further information, please contact Yash Rupal tel: (+44) , Mike Hardwick tel: (+44) , or your usual Linklaters LLP tax contact. What are the key features of the proposed GAAR? The Consultation Document contains a draft GAAR, which would apply where: > there are tax arrangements; > which give rise to a tax advantage; and > which are abusive. Tax arrangements are arrangements (a very widely defined term which can encompass part of a larger transaction or a transaction as a whole) which, having regard to all the circumstances, it would be reasonable to conclude have as their main purpose, or one of their main purposes, the obtaining of a tax advantage. Tax advantage is, again, widely defined encompassing both absolute advantages (such as an increased tax deduction or a reduced tax UK Tax Alert Consultation on Introduction of a GAAR into UK Tax Law 1

2 charge) and timing advantages (such as a deferral of a tax liability or an acceleration of a repayment). Tax arrangements will be abusive if the entering into or carrying out of them cannot reasonably be regarded as a reasonable course of action, having regard to all the circumstances. The relevant considerations include any principles behind, and policy objectives of, the legislation in question and any shortcomings in the provisions that the arrangements are intended to exploit. The substantive results of the arrangements and any larger arrangements of which the arrangements form part will also be looked at. The draft legislation includes a (non-exhaustive) list of indications that tax arrangements might be abusive. These include where the arrangements result in an amount of income, profits or gains for tax purposes that is significantly less than the amount for economic purposes (or, in the case of deductions or losses, significantly greater than the amount for economic purposes), where the arrangements result in a claim for the repayment of tax that has not been (and is unlikely to be) paid or where the arrangements involve a transaction which contains non-commercial terms. Tax arrangements will be abusive if the entering into or carrying out of them cannot reasonably be regarded as a reasonable course of action... Like the illustrative GAAR included in the Study Group Report, at first sight, the draft GAAR appears narrowly drawn. Indeed, the Consultation Document indicates that the proposed GAAR is intended to have narrower application than most general anti-avoidance rules found in other jurisdictions. It retains some of the loaded phrases from the Study Group Report, such as arrangements needing to be abusive before they are caught. Throughout the Consultation Document reference is also made to the target being artificial arrangements, although this term is not actually used in the draft legislation, and the intention apparently remains not to catch the centre ground of tax planning. However, the key question for taxpayers will be whether the wording of the draft GAAR does indeed only catch abusive and artificial arrangements (and, inherently linked with this, whether it will be apparent to taxpayers and their advisers when a transaction is and isn t abusive and artificial). As the Consultation Document rightly identifies, when applying the GAAR to tax planning arrangements, it seems likely that the main pressure point will often be in relation to whether the arrangements can reasonably be regarded as a reasonable course of action (the so-called double reasonableness test). This aspect of the draft GAAR is discussed further in the comment box below. The draft GAAR would initially apply to corporation tax (and linked taxes, such as the bank levy), income tax, capital gains tax, petroleum revenue tax, inheritance tax, stamp duty land tax and the enveloped property annual charge (but not VAT). Separate but very similar legislation will be proposed so as to cover national insurance contributions. The Government is also of the view that there is nothing to prevent the GAAR from applying where a UK tax advantage arises by virtue of a double tax treaty rather than under domestic law as such, so it is proposed that the GAAR would have the power to override treaties. UK Tax Alert Consultation on Introduction of a GAAR into UK Tax Law 2

3 The proposed commencement date is 1 April However, the Government is inviting views regarding how tax arrangements entered into (but not completed) before the commencement date should be treated, presumably to try to avoid concerns regarding it applying retrospectively. Comment - The Draft GAAR and the Double Reasonableness Test As noted above, the key question when considering whether tax planning falls foul of the draft GAAR is likely to be whether it can reasonably be regarded as a reasonable course of action. (The illustrative GAAR in the Study Group Report contained a similar concept, focusing instead on reasonable exercises of choices of conduct.) In an improvement since the initial illustrative GAAR, more detail is given of the circumstances and background to be considered when assessing whether a particular arrangement can reasonably be regarded as a reasonable course of action. Further, the burden of proof remains on HM Revenue & Customs ( HMRC ), and it will have to demonstrate, essentially, that nobody could reasonably regard what was done as a reasonable course of action, which would seem quite a high hurdle. The Consultation Document confirms that, in the Government s view, what the taxpayers in Mayes, D Arcy and Bank of Ireland Britain Holding Ltd did could not reasonably be regarded as a reasonable course of action. The inclusion of Mayes in that list is no surprise as the SHIPS2 transaction in that case was clearly one of the targets of Aaronson s draft GAAR as well. However, there will still inevitably be situations, in particular where a step or feature is inserted in an otherwise entirely commercial transaction to try to overcome a tax-related issue or improve the tax treatment, where the answer will be far from certain. It may also be that the way the proposed GAAR applies to a tax planning scheme could change over time. For example, it might well be that when particular tax planning is first carried out it would be regarded as abusive. However, over time, if it becomes more commonly used and is not countered, it may come to fall within the centre ground of reasonable tax planning and, therefore, outside the scope of the GAAR. What is the effect if the GAAR applies? As with the illustrative GAAR proposed by Graham Aaronson QC and his study group, it is important to note that the draft GAAR is not an extension to the normal principles of purposive interpretation, but rather is a separate rule that can apply where the relevant provisions themselves would not prevent an abusive tax arrangement from producing a tax advantage. The effect of the proposed GAAR applying is that the tax advantages arising from the arrangement are to be counteracted by HMRC on a just and reasonable basis. Counteraction may be made in respect of the tax in question... tax advantages arising from the arrangement are to be counteracted by HMRC on a just and reasonable basis. UK Tax Alert Consultation on Introduction of a GAAR into UK Tax Law 3

4 or any other tax to which the GAAR applies. Just and reasonable corresponding adjustments are also to be made to the tax computations of the taxpayer in question and other taxpayers affected in any relevant periods in order to avoid excessive taxation overall. It is proposed that the GAAR will not, at least initially, provide for any special rates of interest or penalties to apply to any tax recovered under it so there is no obvious downside to a transaction that is caught by the GAAR (beyond that which would apply to any other situation in which a taxpayer is found to have underpaid tax). Will there be a clearance procedure? Unlike some other jurisdictions that currently have a GAAR, there will be no formal or informal GAAR clearance procedure in the UK. The Consultation Document suggests that this will still be the case even if an element of the transaction is the subject of a clearance under another specific provision (for example, a clearance under Section 138 TCGA 1992 regarding whether a scheme of reconstruction will be effected for bona fide commercial reasons).... there will be no formal or informal GAAR clearance procedure... The Advisory Panel However, the draft GAAR does contemplate an advisory panel, with a mixture of HMRC and independent members, that would provide opinions to HMRC and the taxpayer as to whether it considers that the GAAR applies to a particular arrangement. These opinions would, however, only be given after the event once HMRC had decided to challenge the arrangements. Unlike in the Study Group Report, it is also not clear that the Consultation Document envisages a majority of independent members. The panel s opinion would be used in evidence on any appeal against counteraction under the GAAR. Once the advisory panel had concluded that the GAAR does not apply in any given case, presumably this would be a strong defence for the taxpayer under the double reasonableness test. The advisory panel would also be responsible for approving the guidance on the GAAR. This guidance will form an important part of the GAAR, not least because it must be considered by the tribunal or court on any appeal. Relevant background material, such as other guidance or statements and evidence of HMRC practice, may also be considered by a court or tribunal when assessing whether the GAAR would apply. Comment - Certainty, Simplicity, Fairness and Hitting the Target At least initially, the GAAR seems likely to lead to greater uncertainty whilst both taxpayers and HMRC try to get a feel for how it will operate in practice. UK Tax Alert Consultation on Introduction of a GAAR into UK Tax Law 4

5 Issues surrounding taxpayer confidentiality have led HMRC to conclude that panel opinions should not be published, even in anonymised form (although digests of the underlying principles would be published). This is regrettable and surprising, given that tribunal decisions are published. As a result, with no formal or informal clearance mechanism, much in terms of certainty will depend upon the quality of the guidance. (There will, however, at least be a level playing field for all taxpayers, with no clearances available for anyone. It will not be open for taxpayers with Customer Relationship Managers or other strong relationships with HMRC to obtain informal clearances whilst others who do not have such a relationship are unable to do so.) The Consultation Document acknowledges that, even with a GAAR, targeted anti-avoidance rules are still likely to be required. The Code of Practice on Taxation for Banks will also remain. It would therefore seem that the GAAR will do little to simplify the UK tax system in the short to medium term. In time, if the GAAR proves effective at countering avoidance, HMRC may start to feel more confident in relying on it to the exclusion of other anti-avoidance measures thereby enabling simplification, but that would seem a long way off. Contacts For further information please contact: Yash Rupal Partner (+44) yash.rupal@linklaters.com Mike Hardwick Consultant (+44) michael.hardwick@linklaters.com Whether the GAAR will hit the target by countering abusive tax avoidance without impeding responsible tax planning remains to be seen. What happens next? There will then be a further consultation in autumn 2012 on proposed draft legislation with a view to introducing the GAAR in Finance Bill Further information For further information, please contact Yash Rupal, Mike Hardwick, or your usual Linklaters LLP tax contact. Author: Yash Rupal/Mike Hardwick This publication is intended merely to highlight issues and not to be comprehensive, nor to provide legal advice. Should you have any questions on issues reported here or on other areas of law, please contact one of your regular contacts, or contact the editors. Linklaters LLP. All Rights reserved 2012 Linklaters LLP is a limited liability partnership registered in England and Wales with registered number OC The term partner in relation to Linklaters LLP is used to refer to a member of Linklaters LLP or an employee or consultant of Linklaters LLP or any of its affiliated firms or entities with equivalent standing and qualifications. A list of the names of the members of Linklaters LLP together with a list of those non-members who are designated as partners and their professional qualifications is open to inspection at its registered office, One Silk Street, London EC2Y 8HQ or on and such persons are either solicitors, registered foreign lawyers or European lawyers. Please refer to for important information on our regulatory position. We currently hold your contact details, which we use to send you newsletters such as this and for other marketing and business communications. We use your contact details for our own internal purposes only. This information is available to our offices worldwide and to those of our associated firms. If any of your details are incorrect or have recently changed, or if you no longer wish to receive this newsletter or other marketing communications, please let us know by ing us at marketing.database@linklaters.com. One Silk Street London EC2Y 8HQ Telephone (+44) Facsimile (+44) Linklaters.com UK Tax Alert Consultation on Introduction of a GAAR into UK Tax Law 5