A guide to Creative Sector Tax Reliefs

Transcription

1 A guide to Creative Sector Tax Reliefs Research and Development Tax Relief High-end Television & Animation Production Tax Relief Video Games Tax Relief 1

2 Introduction The creative industries ranging from advertising to architecture and fashion to film constitute one of the fastest-growing sectors in the UK. To promote and increase creative industries, the UK Government has introduced a series of tax reliefs for the creative sectors. The new reliefs are intended to help support technological innovation and ensure that companies working in these highly creative industries continue to contribute to UK economic growth and British culture. 2

3 1. Research and Development (R&D) Tax Relief for Companies 3

4 Introduction Research and Development (R&D) tax credits are available to innovative companies wishing to reduce their payments of tax. The government wants to make the UK a preferred location for companies to carry out R&D and boost productivity and growth. As a result the R&D regulations are making it increasingly attractive for companies to claim these reliefs. Originally small companies were able to claim an element of relief if they spent at least 25,000 per annum on qualifying R&D expenditure. This reduced to 10,000 until 1 April 2012 when the threshold was withdrawn all together. Small claims as well as large are now, therefore, possible which may reduce your corporation tax bill. Alternatively companies may be able to claim a tax credit instead, and receive a cash payment from HM Revenue and Customs (HMRC). Previously these payments were limited to the amount of Pay As You Earn and National Insurance you have paid. Since 1 April 2012 this limit has also been abolished. 4

5 Tax Relief for Companies There are two schemes available: a) The small or Medium-sized enterprise (SME) Scheme; and b) The large Company Scheme The SME Scheme is the more generous and applies to organisations with fewer than 500 employees. In addition, either turnover should be under 100 million euros or the company balance sheet value must be under 86 million euros. Members of large groups of companies may have to watch these limits, to ensure they qualify for the SME Scheme. Tax relief under the SME Scheme is now 225% on qualifying expenditure. Therefore for each 100 of qualifying costs, your company could have the income on which Corporation Tax is paid reduced by an additional 125 on top of the 100 spent. This will reduce your taxable profits accordingly. If a tax loss results, this can be set against your previous year company profits or current year other income, or carried forward to set against future trading profits. In other words the normal loss relief options are available. Alternatively, the tax loss can be cashed in. An 11% tax repayment can be claimed. For companies with no exposure to corporation tax, for example if you have not started trading for tax purposes, or you have sufficient losses already to not pay corporation tax, this can be a welcome boost to cash flow. The Large Company Scheme is significantly less generous, in that there is 130% relief on qualifying expenditure, rather than 225% for SMEs. In addition, the 11% tax repayment option is not currently available under the Large Company Scheme. The government are however looking at ways to allow loss making large companies eligible for a payable credit in the future. It is therefore important to ensure that claims are made under the correct scheme, and where possible ensure the SME scheme rules can be used. 5

6 Claiming the company tax relief Claims to reduce your corporation tax liability are included on the normal corporation tax return and automatically reduce the tax you need to pay. Any repayment due to loss relief are made when HMRC have processed the relevant corporation tax return. Similarly if you were to cash in your losses for a repayable tax credit, HMRC will make the payment to you after they receive your return. An example of how this repayment is calculated is given below. 6

7 Qualifying projects Your company or organisation can claim for R&D Relief if an R&D project seeks to achieve an advance in overall knowledge or capability in a field of science or technology where there is scientific or technological uncertainty and not simply an advance in its own state of knowledge or capability. For each project therefore it is necessary to consider what scientific or technological advance is being sought. This focuses attention on the project s aim for an advance, which is the key issue in judging whether R&D for tax purposes is being undertaken. It s not enough that a product is commercially innovative. It is not possible to claim in respect of projects to develop innovative business products or services that don t incorporate any advance in science or technology. Scientific or technological uncertainty exists when knowledge of whether something is scientifically possible or technologically feasible, or how to achieve it in practice, is not readily available or deductible by a competent professional working in the field. But uncertainties that can be resolved through relatively brief discussions with peers are routine uncertainties rather than technological uncertainties. Technical problems that have been overcome in previous projects on similar systems are not likely to be technological uncertainties. Where a project does not meet the tests of advance in overall knowledge and resolution of uncertainty, the project does not then have to succeed to qualify for R&D relief. Establishing what does not work, as well as what does work, qualifies as an advance in science or technology. For example, a small company supplying black widgets to a car manufacturer may be asked if these can be produced in white. The company may research the possibility and in due course report back that this is not possible. This research has resolved a technological uncertainty and it is therefore R&D. Relief for costs in this example is likely to be claimed by the small company as a subcontractor. More detail of qualifying costs, including subcontract costs, follows in the next section. 7

8 Qualifying Costs If your company and the project both meet the necessary conditions, then you can claim tax relief on revenue expenditure (generally, this means costs incurred in the day-to-day running of the business not capital expenditure on assets) in the following areas: Staff costs these include: 1. Remuneration by the company to directors or employees of the company, excluding benefits in kind. 2. The Secondary Class 1 NICs paid by the company excluding NICs on excluded benefits in kind; and 3. Pension fund contributions paid by the company operated for the benefit of directors or employees of the company. Where staff are only partly engaged on R&D activities, you can only claim for an appropriate proportion of the cost. Materials consumable or transformable materials used directly in carrying out R&D. These are actual physical materials that are consumed in the R&D, and not things like telecommunication or data costs. Utilities power, water, fuel used directly in carrying out R&D, but not things like telecommunication costs and data costs. Software computer software used directly in the R&D. Software Development is an area where qualifying costs can easily be missed. This is because the position is not always clear cut. To put this in example, if an off the shelf system is purchased, but the buyer then finds that it does not contain all the functionality required by their particular industry or way of working, they might employ some software engineers to improve the overall system or to allow this new software to communicate with other software used in the business, but written in a different code. This activity could be qualifying R&D, in spite of starting with an existing software system. If the software solution fills the gaps in the existing product to improve upon the original, then the activity itself can qualify as R&D. Subcontracted R&D expenditure if your company or organisation is claiming relief under the SME Scheme, then you may be able to claim back 65% of what you spend on certain R&D activities carried out for you by a subcontractor. Subcontractors themselves cannot claim R&D relief under the SME Scheme. There may be a possibility of claiming relief under the Large Company scheme, which offers additional 30% relief for qualifying expenditure. Capital Expenditure Although R&D Relief is only available for revenue expenditure (generally, day-today running costs, as opposed to capital expenditure), if you are involved in R&D and you spend money on capital assets, you may be able to claim 100% R&D capital allowances. 8

9 Repayable tax credit Companies that are carrying out on R&D, but have losses or have not yet started trading for tax purposes, will be able to benefit from this measure. Calculations can be complex, but essentially 11% is the current rate of repayable tax credit. It was 12.5% prior to 1 April This reduction has been imposed to compensate for the increase in enhancement available from 100% to 125%. The following example illustrates the basic process: Example Converting R&D Relief on expenditure of 20,000 to a tax credit payment Calculation step Amount R&D expenditure 20,000 R&D enhancement 20,000 x 125% = 25,000 Normal taxable profit 5,000 Trading loss (after R&D relief) 20,000 R&D expenditure qualifying for conversion to credits 20,000 Potential tax credit 20,000 x 11% = 2,200 PAYE and NICs liabilities (say) 5,000 Payable tax credit 2,200 Losses available to carry forward or back Nil 9

10 Summary R&D relief is a tool being used by the Government to make the UK a preferred location for companies to carry out R&D and boost productivity and growth. The reliefs are being regularly extended to achieve this objective. There is now no lower limit on the amount companies have to spend to qualify for relief. Any innovation made by companies should be examined to check whether a claim for relief is possible. Relief can either be used as a deduction from profits, or increase trading losses (to carry forward, sideways or back); or (for loss making SMEs) cash in the relief and claim a repayment from HMRC. To conclude with a health warning, HMRC are entitled to review claims for R&D relief just as for any other tax return entry. It is therefore important to have robust arguments at the ready for justifying any relevant claims. A good working relationship with the HMRC specialist teams who review the R&D claims is an advantage. Being able to discuss potential claims with them in advance of making formal claims can significantly increase the chances that your claims for tax relief will succeed 10

11 2. High-end Television & Animation Production Tax Relief in the UK 11

12 Introduction The Government introduced tax reliefs for High-end Television & Animation Production for accounting periods beginning on or after 1st April The main features of High-end Television & Animation Production Tax Reliefs are: They apply to a UK company or an overseas company with a UK branch or tax presence not LLPs or partnerships They are intended to operate in a similar manner to the existing film tax relief It has been proposed that there will be an additional deduction for qualifying core expenditure. This amount would be deducted from the income from the relevant activity. Any resultant loss would be capable of surrender for a payable tax credit Companies must satisfy a cultural ( Britishness ) test in order to qualify for the reliefs. Relief for High-end Television & Animation Production The relief only applies to programmes intended from the outset to be broadcast to the general public on the television (including through the internet). Where a company qualifies for relief, claims are to be made in the company s tax return. 12

13 Criteria Programmes must meet conditions A and B and, if the programme is not animation, then it must also meet conditions C and D. Condition A The programme is a drama, documentary or animation. Condition B It is not excluded as being within any of the following categories: Advertisement or promotional programmes News, current affairs or discussion programmes Quiz, game, chat or similar programmes Programmes including a competition or contest A broadcast of a live event or performance given otherwise than for the purpose of being filmed Programmes produced for training purposes. Condition C The period of time that the programme is commissioned to fill is over 30 minutes. Condition D The average core expenditure (see below) per hour of slot length in relation to the programmes is at least 1 million. Culturally British test HMRC have published draft regulations setting out a cultural test that a company must pass and a certificate that must be obtained in order to qualify for the reliefs. The cultural test adopts a points system, with a company having to obtain a certain minimum number of points to pass the test. Points are awarded depending on the extent to which certain factors are carried out in the UK. The factors differ according to the types of activity undertaken. Examples of the factors are: 13

14 The percentage of the programme that is set in the UK or another EEA state The number of characters depicted in the programme that are from the UK or another EEA state Whether the programme depicts a British story or a story relating to an EEA state The percentage of the original dialogue recorded in English or a recognised regional language The level of contribution of the programme to the promotion of British culture 14

15 Qualifying expenditure The following types of expenditure will qualify for the relief: Production expenditure expenditure on television production activities in connection with the relevant programme Core expenditure production expenditure on pre and post production of the relevant programme. At least 25% of the core expenditure incurred on the relevant programme must be UK expenditure UK expenditure expenditure on goods and services in relation to the relevant programme that are used or consumed in the UK. Apportionment will be required between UK and non-uk expenditure on a just and reasonable basis. 15

16 Taxation of television companies The activities of a television production company in respect of a relevant programme are treated as a separate trade. The company is treated as beginning to carry on this trade when pre-production begins or, if earlier, when it receives any income from the relevant programme. In its first period of account, the company must record the proportion of the estimated total income from the relevant programme treated as earned at the end of that period less the costs incurred to date. In later periods of account, the company must record the new total income and costs incurred since the previous period. Additional deduction If a television production company qualifies for relief, it may make an additional deduction in calculating the profit or loss of the separate programme trade. For the first period of account, the amount of additional deduction is 80% of the lower of: Qualifying UK expenditure; 80% of total amount of qualifying expenditure. For subsequent periods of account, the additional deduction is the difference between the amount calculated by the formula above and the amount of additional deductions given for previous periods. When carrying out the calculations, costs are ignored for a period of account if they remain unpaid four months after the end of the period. Tax relief through credit If a company is eligible for relief, where it has a surrenderable loss, it may claim a credit for an accounting period. The surrenderable loss will be the lesser of: Its available loss for the period in the separate programme trade; and The available qualifying expenditure for the period. A company may surrender all or part of its surrenderable loss in an accounting period in return for a credit of 25% of the loss surrendered. If a company makes a claim, HMRC will pay the amount of the credit (payment of which is not taxable as income). Alternatively, the loss may be used to reduce the company s corporation tax liability. 16

17 Example animation tax relief Below is an example to illustrate how a tax credit could be calculated for an animation production company: A company produces an animated series commissioned to be broadcast on television. Income received from the commissioning broadcaster totals 3.5 million. The total expenditure incurred is 4.5 million of which 4 million is core expenditure on the commissioned series. Total income Total expenditure Pre-tax relief profit/(loss) Enhanceable expenditure 3.5m (4.5m) (1m) 3.2m (qualifying expenditure of 4m x 80%) Additional deduction on enhanceable expenditure (2.5m) (80% of enhancement x 3.2m) Post-tax relief profit/(loss) (3.5m) The surrenderable loss is the lesser of: The post-tax relief trading loss of 3.5m; and The enhanceable expenditure of 3.2m. The animation production company can surrender any amount up to 3.2m of losses. The amount of credit due based on a payable credit of 25% multiplied by the loss surrendered (assuming the maximum of 3.2m is surrendered) is 25% x 3.2m = 0.8m. Limitations on relief Relief is not available to the extent that the company has obtained research and development relief in relation to that expenditure. 17

18 3.Video Games Tax Relief for UK Companies 18

19 Introduction Video games tax relief has now been given approval by the European commission and comes into effect for accounting periods beginning on or after 1 April The relief will apply to companies registered in the UK not LLPs or partnerships; The new relief will operate in a similar manner to the existing film tax relief; It has been proposed that there will be an additional deduction for qualifying core expenditure. This amount would be deducted from the income from the relevant activity. Any resultant loss would be capable of surrender for a payable tax credit; Companies must satisfy a cultural British test in order to qualify for the relief. 19

20 Criteria To qualify for relief, the video game must be intended for supply to the general public when the video game development activities begin. Video games take their ordinary meaning, without specific definition in the legislation. However, a video game does not include: Anything produced for advertising purposes; or Anything produced for the purposes of gambling. The Government has decided not to introduce a minimum spending threshold like the 1 million threshold for television programmes. Criteria for video games to qualify To be a video game development company, a company must: Be responsible for designing, producing and testing the video game; Directly negotiate, contract and pay for rights, goods and services in relation to the video game. 20

21 Qualifying expenditure The following types of expenditure will qualify for the relief: Core expenditure expenditure on designing, producing and developing the video game. However, it does not include expenditure incurred in designing the initial concept for the video game or any expenditure incurred in debugging or carrying out maintenance in connection with a completed video game. At least 25% of the core expenditure on the video game incurred by the company must be UK expenditure; UK expenditure expenditure on goods and services in relation to the video game that are used or consumed in the UK. Apportionment will be required on a just and reasonable basis between UK and non-uk expenditure. Currently, there is no relief available for speculative expenditure, where game projects are cancelled by publishers and not completed. Culturally British test The factors differ according to the types of activity undertaken. Examples of the factors are: The percentage of the video game that is set in the UK or another EEA state; The number of characters depicted in the video game that are from the UK or another EEA state; Whether the video game depicts a British story or a story relating to an EEA state; The percentage of the original dialogue recorded in English or a recognised regional language; The level of contribution of the video game to the promotion of British culture; Whether certain personnel (being the project leader, at least one scriptwriter, the lead composer, one of the lead actors, the lead programmer and the lead designer) are citizens of, or ordinarily resident, in an EEA state. 21

22 Example video games tax relief Below is an example to illustrate how a tax credit could be calculated for a video games production company. A company produces a video game which is commissioned. Income received from the commissioning publisher totals 400K. The total expenditure incurred is 500K of which 400K is core expenditure on the commissioned game. Total income 400K Total expenditure (500K) Pre-film tax relief profit/(loss) (100K) Enhanceable expenditure (qualifying 320K expenditure of 400K x 80%) Additional deduction on enhanceable (256K) expenditure (80% of enhancement x 320K) Post-tax relief profit/(loss) (356K) The surrenderable loss is the lesser of: The post-tax relief trading loss of 356K; and The enhanceable expenditure of 320K. The video games production company can surrender any amount up to 320K of losses. The amount of credit due is based on a payable credit rate of 25% multiplied by the loss surrendered (assuming the maximum of 320K is surrendered) is 25% x 320K = 80K. 22

23 APPENDIX CIRD81960 R&D Tax Relief: Conditions to Be Satisfied: BIS Guidelines (Formerly DTI Guidelines) (2004) Application to Software 23

24 CIRD81960 R&D Tax Relief: Conditions To Be Satisfied: BIS Guidelines (Formerly DTI Guidelines) (2004) Application to Software There are two ways in which expenditure on the creation of software can be R&D within the DTI guidelines. References to paragraphs in the sections below are to the paragraphs in the 2004 DTI guidelines (CIRD81900). 1) Software that is used as a tool in larger R&D project Where software is developed as a tool for direct use in a larger R&D project, then development of the software will qualify as R&D. An example might be data handling software needed to record and monitor the results of the R&D. The software need not of itself involve a specific advance in science or technology if it directly contributes to a larger R&D project it will qualify as R&D (para4). The question of what is the R&D project is addressed at para19. 2) Development of software as the goal of the R&D project The following guidance relates to software projects. The guidelines apply to a software project in the same way as they apply in any other project. The project must seek to achieve an advance in science or technology (para3). The activities that directly contribute to achieving the advance through the resolution of scientific or technological uncertainty are R&D (para4). There must be an advance in overall knowledge or capability in a field of science or technology, not just the company s own state of knowledge or capability alone (para6). The development of a software product does not represent an advance in science or technology simply because it is software (para8). Routine adaptation of an existing product or process is not R&D (para12). Assembling components of a program to an established pattern or using routine methods for doing so is not R&D (para29). Combining standard technologies can be R&D if a competent professional in the field can t readily deduce how the separate components should be combined to have the intended function (para30). Most software projects will be intended to result in a product to be either used in house, licence or sold. The project may be to produce a product for use in the arts, humanities and social sciences (including economics). Such projects would only quality as R&D projects to the extent that they are seeking to advance knowledge through the resolution of scientific technological uncertainty. This is because of the 24

25 general exclusion of the arts, humanities and social sciences (including economics) in the DTI guidelines on the meaning of R&D. Software projects and system uncertainty It may be claimed that there are always system uncertainties involved with software. It is true that there is always some uncertainty about anything. But uncertainties that can be resolved through discussions with peers or through established methods of analysis are routine design uncertainties rather than technological uncertainties. Technical problems that have been overcome in previous projects on similar operating systems, or computer architecture, are not technological uncertainties. Where the aim of a project goes further than resolving scientific and technological uncertainties the project as a whole will not qualify as R&D, but there may be elements in the project that do qualify as R&D. Most projects for the development of a commercial product will go further than resolving technological uncertainties and so will not qualify as R&D in their entirety. Projects unlikely to involve R&D Some software applications or components of applications will normally follow established methodologies and not involve scientific or technological uncertainties and so not qualify as R&D, examples are: The handling of interactions with users. This covers areas such as development of date entry procedures and user interfaces. The visual presentation of information to users. Creating software that replicates an established paper procedure, possibly building in best practices. The fact that a previously manual task has been automated does not by itself make it R&D. The assembling, carrying out routine operations on, and the presenting of, data. Using standard methods of encryption, security verification and data integrity testing. Creation of websites or software using tools designed for that purpose. However where these contribute directly to a larger R&D project they would not be excluded from the larger project. Software projects likely to be R&D Developing new operating systems or languages. Creating new search engines using materially new search methods. 25

26 Resolving conflicts within hardware or software, where the existence of a problem area and the absence of a known solution have been documented. Creating new or more efficient algorithms whose improvements depend on previously untried techniques Creating new encryption or security techniques that do not follow established methodologies. An indication of the type of questions to be asked in considering whether a project or a component of a project is R&D is contained in CIRD80520; these questions apply to software projects as well as to other projects. Examination of the records relating to the nature of the project CIRD80550 is likely to be helpful in cases of doubt. Software as capital expenditure It is possible that a software project, despite being an R&D project, will not qualify for R&D tax relief because the expenditure is capital for tax purposes. This is dealt with at CIRD [SCORCE: Corporate Intangibles Research & Development Manual] 26

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