Investing in Northern Ireland

Investing in Northern Ireland Key Tax Issues August 2012 kpmg.ie 1

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Contents 1 Introduction 3 2 Corporation tax 4 3 Individual taxation 10 4 Other taxes 12 Appendix 1 - UK Tax Residence 13 2

1. Introduction Northern Ireland falls within the UK taxation regime which offers one of the lowest corporation tax rates on trading income in the European Union The overall tax burden in Northern Ireland is one of the lowest of all the major European economies with low personal tax, low social welfare contributions, generous tax allowances and no local taxes on profits or surpluses. The UK has concluded over 100 tax treaties for the avoidance of double taxation and has the largest network of treaties globally. An important feature of many treaties is a reduced rate for withholding tax on the payment of dividends, interest and royalties. The majority of UK-based companies also benefit from an exemption from corporation tax on any foreign dividends that they receive. The UK Government and Northern Ireland Executive are currently engaged in a review process to determine if and when to pass legislation to allow the Northern Ireland Assembly to take on tax varying powers. If the necessary legislation is passed then the Northern Ireland Assembly will be able to set a corporation tax rate lower than the current UK rate of 24 percent. All of the main Northern Ireland political parties have committed to pass legislation to reduce the rate of corporation tax to an amount similar to the 12.5 percent rate in the Republic of Ireland. The lower rate is likely to only apply to profits generated by companies based in Northern Ireland and it is probable that the lower rate will only apply to trading profits and not to passive income. A decision from the UK Government on whether to proceed with this policy is expected in the second half of 2012. 3

2. Corporation tax Northern Ireland, as part of the UK tax regime, offers one of the lowest corporation tax rates on trading income in the European Union. Income Source Main Tax Rate Small Profits Rate Trading Income 1 24% 20% Investment Income 2 24% 20% Dividends 3 0% 0% Foreign Branch Profits 4 0% 0% Certain Patent Income 5 10% 10% 1 Corporation tax rate to fall to 23 percent in 2013 and 22 percent in 2014 2 Excluding dividend and trading profits 3 Dividend exemption will apply to most dividends but certain dividends remain subject to corporation tax 4 UK companies can elect to exempt foreign branch trading profits from UK corporation tax 5 A new regime will reduce the tax rate for certain patent income to an effective 10 percent rate of tax with effect from April 2013 4

Scope Most companies conducting business in Northern Ireland are subject to UK corporation tax on profits (both income and capital) arising from their operations. Broadly speaking, and subject to territorial limitations, the liability arises regardless of the legal form of the company, its place of incorporation or whether it has limited or unlimited liability status. The scope of a company s liability to corporation tax is dependent upon its residence status. A company registered in NI or another part of the UK is, on first principles, subject to UK corporation tax on its worldwide income and capital gains (excluding most distributions received from other companies). A company not registered in Northern Ireland or another part of the UK trading through a Northern Ireland branch is subject to UK corporation tax on the profits connected with that branch and on any capital gains arising on the disposal of assets used for the purposes of the branch. If the company is not registered in NI or the UK and does not trade through a branch in Northern Ireland, it will be liable to UK income tax on certain UK source income. A company is tax resident in Northern Ireland if it is managed and controlled there. This is a question of fact to be determined in each case. A company is centrally managed and controlled where the major policy decisions are made. This will usually be where the directors meetings are held. A Northern Ireland tax resident company should be able to access all benefits available under the UK double taxation treaty network. Determination of taxable profits In calculating taxable profits of a company, the profit in the statutory accounts is adjusted for tax purposes. Expenses are generally tax-deductible if they are not of a capital nature and are incurred wholly and exclusively for the purposes of the trade. The following are not deductible: - Depreciation (see tangible/intangible assets) - Profit or loss on the sale of fixed assets - Non-staff entertainment and certain motor costs - Dividends and distributions. As a general rule and subject to anti avoidance rules, discussed later, interest on loans used for the purpose of a company s trade is deductible on an accruals basis. Where the functional currency of a company is other than sterling, the computation of taxable trading income may be made in that currency, with the taxable income figure alone being translated into sterling. This avoids the creation of artificial taxable income arising from translation differences. Capital gains Chargeable gains are taxed at the prevailing corporation tax rate of 24 percent. The chargeable gain is calculated after allowance for inflation. Northern Ireland is part of the UK holding company regime which exempts most disposals by a trading group of 10 percent plus shareholdings in trading companies which are resident anywhere in the world. 5

Losses The UK taxation system classifies income according to its type and the use which can be made of losses depends upon the activity from which they arise, trading losses being most flexible. It is possible to relieve trading losses against the total profits of the same accounting period including investment and rental income and certain capital gains. In general, any excess losses may be relieved against the total profits of the previous accounting period. Any unutilised trading losses may be carried forward without time limit to offset future income from the same trade. Trading losses may also be used against the profits of any other UK company within the same tax group which arise in the same accounting period as the tax losses. Groups of companies The UK has a system of group relief which allows the transfer of certain tax losses and other tax attributes, and the tax-free transfer of assets, between group companies. Members of a group must be tax-resident in the UK or be a UK branch of a worldwide company and must be in a greater than 75 percent shareholding relationship with one another. Groups (defined differently) also provide relief from stamp duty, stamp duty land tax and VAT. Tax Reliefs The UK tax system provides in certain circumstances for a number of reliefs from corporation tax. Some of the key reliefs from corporation tax are as follows: Foreign Branch Exemption UK tax-resident companies can make an election that profits (and losses) of any foreign branch are exempt from UK taxation. This exemption will usually improve a company s overall tax position in situations whereby the relevant rate of foreign tax is lower than the 24 percent UK corporation tax rate. Research & Development Research and development (R&D) tax credits are available for large corporations and SME s investing in R&D: Large corporations R&D In addition to the normal 100 percent deduction for revenue expenditure, large companies are entitled to a further reduction from their taxable income of 30 percent of their current spending on qualifying R&D. For example if a company spends 100,000 on qualifying R&D, it will be able to deduct 100,000 from its taxable income under ordinary tax rules and an additional 30,000 under the R&D tax credit. SME s R&D In addition to the normal 100 percent reduction SME s are entitled to a further deduction from their taxable income of 100 percent of their current spending on qualifying R&D. For the purposes of this scheme only, an SME is defined as a company employing fewer than 500 people and has either a turnover of less than 100 million per annum or a balance sheet total of less than 86 million. Subject to EU approval, the further deduction available to SME s for R&D tax relief has increased to 125 percent with effect from 1 April 2012. Tangible/intangible assets Tax relief for tangible assets used for the purposes of a trade is given through the capital allowances code. In general, tax relief at a rate of 8 percent per annum on a reducing balance basis is available in respect of long life assets, cars and certain features which are integral to a building. Tax relief at 18 percent per annum on a reducing balance basis is available in respect of low emission cars and other qualifying plant and machinery. No tax relief is available under the capital allowances code for expenditure on buildings or land. Tax relief is available on certain intangible assets over the economic life of the asset, as determined in the financial statements of the company, or where the company so elects on a straight line basis over 25 years. Dividends Most dividends and other distributions from companies received by Northern Ireland companies are exempt from UK taxation at the corporate level. This is an exemption system that should apply to most dividends received in an ordinary commercial context. 6

There is no minimum holding period requirement for the exemption to apply. Also, unless the recipient company is a small company as defined under EU rules, there is no requirement for the paying company to be in an EU or tax treaty country. There are restrictions on the application of this exemption system. In particular, it will not apply where certain prescribed tax avoidance schemes are in place. Withholding taxes There is no withholding tax on dividends paid by a Northern Ireland company. Income tax must be deducted at the standard rate (currently 20 percent) on certain payments. These payments include: - Annual interest, except where paid to UK banks or other UK companies - Royalties - Rents on UK real estate (to non resident landlords) Full or partial exemption from UK withholding tax may be available if the payment is to a resident of a double taxation treaty-partner country. There is also an exemption for payments of interest to nonresidents in respect of certain wholesale debt instruments and for payments of interest on quoted Eurobonds. Withholding tax is deducted at the income tax rate of 20 percent from deposit interest paid by UK banks and building societies. However, a non-resident, or a UK resident company, can avoid this withholding tax by filing the appropriate declaration with the financial institution. Filing and payment The filing date for corporation tax returns is generally 12 months from the end of the accounting period. For large companies (broadly those with taxable profits of more than 1.5m for a 12 monthly period) tax must be paid in quarterly instalments. The 1.5m limit is divided by the number of associated companies (companies under common control). A company which is part of a group with a large number of companies, is likely to be viewed as large whatever the level of taxable profits and so payments by instalments will apply. Instalment payments are made on the 14 th day of month seven from the start of the accounting period, and then at three month intervals thereafter. For companies which are not large companies, corporation tax is payable nine months after the end of its accounting period. Shipping income A shipping company carrying on a trade in Northern Ireland can be taxed under the normal rules on its trading profits, after deduction for relevant expenses and capital allowances. As an alternative a shipping company carrying on strategic and commercial management of its ships in Northern Ireland may elect to be taxed under the EU approved Tonnage Tax regime. This regime allows shipping companies to calculate their taxable profits by reference to the tonnage and usage of the ships operated by the shipping company. The standard corporation tax rate of 24 percent is then applied to the profits calculated. 7

Anti-avoidance The UK tax regime includes a number of complex anti-avoidance provisions. A high level analysis of the key anti-avoidance provisions are as follows: Transfer Pricing Transactions carried out between buyers and sellers under common control, and who are defined as large companies, must be conducted on an arm s length basis. If the company does not account for the transaction on an arm s length basis then a tax adjustment is required. The transfer pricing rules are not limited to transactions involving the sale of goods, but extend to payments for other business facilities, including interest on loans. Corporation tax relief is not available for interest that represents more than a reasonable return on the underlying principal amount, or for interest payments on that portion of a loan that would not be advanced if the lender and borrower were not under common control. The transfer pricing rules apply whether or not the related party is resident in the UK. To ensure that the application of transfer pricing rules to UK UK transactions will not cause double taxation of the same profits, where an increase is made in the profits of one party a compensating reduction in the profits of the other related party is allowed. Worldwide Debt Cap The worldwide debt cap rules seek to ensure that interest deducted by the UK members of a multi-national group does not exceed the group s total consolidated external finance costs. The rules operate in addition to other existing provisions which can restrict interest deductibility (including the UK s transfer pricing rules). The rules, therefore, provide an additional hurdle which must be passed for interest to be deductible for tax purposes. A specific exemption has been proposed for the financial services industry and the current rules appear to allow debt from some private equity funds to count as external debt. The provisions contain wide-ranging anti-avoidance rules. Controlled foreign companies The UK controlled foreign companies regime provides, in certain circumstances, that certain profits of companies located in tax jurisdictions outside the UK will be deemed to be taxable on its UK parent even if the profits are not distributed to the UK parent. The UK Government has recently embarked on a major programme of reform which is scheduled for completion in 2012. Full reform of the rules is intended to deliver a much more territorial system, focussing on profits artificially diverted from the UK and is therefore likely to be much less problematic for overseas headquartered multinationals. A further feature of the rules will be the introduction of an offshore finance company regime. 8

3 Individual taxation The Northern Ireland income tax year runs from 6 April to 5 April each year. The rates of personal tax and social security in Northern Ireland for the 2012/2013 tax year are as follows: Tax / Levies Personal allowance Rates 8,105 for individuals aged less than 65 Income 20 percent up to 34,370 40 percent between 34,370 & 150,000 50 percent over 150,000 Social Security Employee: 12 percent on earnings between 7,605-42,475 and 2 percent thereafter Employer:13.8 percent above 7,488 It was announced in the 2012 UK Budget that the top rate of income tax will be reduced to 45 percent with effect from the 2013/14 income tax year. In Northern Ireland, companies are required to operate a payroll withholding tax system (PAYE) in respect of both cash payments and benefits in kind, e.g. medical insurance and company cars provided to employees. This applies irrespective of whether the employment is a Northern Ireland employment or a foreign employment. Share based remuneration is generally inside the scope of the PAYE system. To the extent that employees have taxable income (including share remuneration) which is not accounted for through the PAYE system, it is necessary to file an income tax return under the self assessment system. The tax return filing deadline is 31 January following the end of the tax year. Scope of UK income tax An individual s liability to UK income tax depends on their residence position. The current rules which govern whether an individual is resident in the UK or not are complex. Individuals qualify as UK resident if: - They spend 183 days or more in the UK in any tax year; - They have an intention to stay in the UK for at least three years; or - They make regular visits to the UK, averaging at least 91 days per tax year over a maximum of three years. However, there is considerable uncertainty as to the tax status in circumstances which are outside of these narrow rules. In order to alleviate the uncertainty surrounding the tax resident status for individuals, the UK government has proposed a simplified system. Appendix 1 to this document summarises the proposed system for determining the UK residence status of individuals from April 2013. 9

Domicile Where an individual is UK resident but not domiciled in the UK, their non-uk source investment income and gains can be exempted from UK tax provided that they elect to be taxed on the remittance basis of taxation. Where an individual s overseas investment income and gains totals 2,000 or more the election will need to be made by the taxpayer upon filing their UK tax return. Non domiciled individuals who have been resident in the UK for at least 7 years of the previous 9 years will be subject to a 30,000 charge if they elect for the remittance basis of taxation. This charge rises to 50,000 when years of residence reach 12 out of 14. UK employment A non-uk resident is taxable only on their UK sourced income. In the case of a not resident individual undertaking work duties in the UK, only the earnings received which relate to their UK work duties may be taxable in the UK. A person who is resident and ordinarily resident in the UK will generally be subject to full UK income tax on their worldwide employment earnings. An individual who is UK resident but either not ordinarily resident or not domiciled in the UK will also have an initial liability to full UK income tax on their worldwide employment income but may be able to claim the remittance basis in respect of any work performed outside the UK. Expatriate concession There are a number of other tax relieving provisions available to employees coming to work in Northern Ireland. These include the following: - Relocation expenses of up to 8,000 such as shipping, storage costs and costs associated with the purchase of a new home (e.g. stamp duty, solicitors fees etc.) may be reimbursed tax free. - Accommodation and subsistence costs that are expected to last less than 24 months can be paid or reimbursed tax free. - Employer contributions to revenue approved occupational pension schemes can be paid tax free. This exemption can be extended to foreign employer pension schemes in certain circumstances. Employee contributions to such schemes are deductible for tax purposes. The maximum contribution qualifying for tax relief each year is 50,000. It is possible to obtain revenue approval in respect of certain share schemes, e.g. share options scheme and restricted share schemes, which can result in tax savings for employees and employers. The various double taxation treaties that the UK has with other countries can also ensure that employees do not suffer double taxation. 10

Social Security An individual working in Northern Ireland and their employer may be required to contribute to the UK social security system. For 2012/2013 the rate for an employer s National Insurance Contributions (NIC) on the earnings of each individual employee (earning over 144 per week) is 13.8 percent, with no upper limit. Employers pay less social security contributions in the UK than in most other European countries. Employees pay NIC on the part of their earnings that falls between 146 and 817 per week at a rate of 12 percent, while employees paid more than 817 per week will pay NIC at two percent on all earnings above that figure, with no upper limit. Capital gains tax ( CGT ) A liability to CGT will arise where a chargeable person makes a disposal of a chargeable asset. Generally a UK resident person is subject to CGT on worldwide gains. However, there are a number of notable exceptions including an individual s principal private residence and tangible moveable assets with a life of less than 50 years which have not attracted capital allowances (tax depreciation) e.g. private motor cars. Where total capital gains and other taxable income is less than 34,370 the rate of CGT for individuals is 18 percent. The rate of capital gains thereafter is 28 percent. Capital gains are calculated by deducting the cost from the sales proceeds. - Paper-for-paper transactions: it may be possible to defer a chargeable gain arising on the disposal of shares in a paper-for-paper transaction, provided certain conditions are fulfilled. - Remittance basis: UK tax resident individuals who are not UK domiciled (e.g. most seconded expatriates) are liable to UK CGT on the disposal of assets outside of the UK only insofar as the proceeds of sale are remitted to the UK. - Entrepreneurs relief: it is possible to reduce CGT on gains up to 10 million to an effective rate of 10 percent provided certain conditions are satisfied. Approval and tax-favoured share plans The UK Government actively supports small companies, entrepreneurs and an innovative business environment by encouraging the granting of stock / share options. There are several tax favoured specific schemes that employers can utilise to reward employees, such as: - The Enterprise Management Incentive - The Share Incentive Plan - Save as you Earn - Approved Company Share Options Plans These share schemes aim to remove any charge to income tax on the grant of shares or options and to treat any gain arising on realisation as a capital gain subject to the capital gains tax regime. In general, capital losses can be offset against capital gains arising in the same year, or carried forward against future capital gains. However, in general, capital losses may not be used to shelter taxable income. 11

4 Other taxes Companies and individuals may be subject to other taxes, in addition to corporation tax and income tax. Stamp duty In general, stamp duty applies on the transfer of shares and marketable securities. A rate of 0.5 percent applies to disposals of shares in UK companies. Relief from stamp duty applies to transfers between associated companies. Reorganisation reliefs can apply to eliminate stamp duties on certain reconstructions and amalgamations. The UK does not levy capital duty on the issue of shares. Stamp duty land tax Stamp duty land tax applies on the transfer of UK property. A rate of up to four percent may be applied on the transfer of commercial UK property but the rate for the transfer of residential UK property may be up to 15 percent Value added tax ( VAT ) The UK system of VAT is based on EU directives. VAT is a tax which is ultimately borne by consumers and must be accounted for by businesses. Tax is paid at each stage of the production and distribution of goods and services but (with some exceptions) is not an additional cost to vatable businesses which, in general, can offset the VAT suffered on purchases (input tax) against the VAT due on goods supplied and services performed (output tax). month. Penalties and default interest charges exist for failure to make returns or pay VAT on a timely basis. Goods may be transferred between EU countries without incurring a VAT liability where both parties are VAT registered. VAT on goods imported from outside the EU is payable at the point of entry. A deferred VAT payment scheme exists for taxable persons subject to certain conditions. Under this scheme payment of the VAT is deferred until the 15th day of the month following importation, provided that a bank guarantee is provided to the tax authorities. Customs duties Customs duties are payable on the importation of certain goods from outside the EU. The rate of customs duty depends on the specific description of the item and the valuation of the goods. Customs Duty is an EU harmonised tax, which applies only at the external borders of the EU, and is the same in every member state. There are many exemptions and reliefs. Local property taxes ( Rates ) Rates apply to commercial property and are payable annually. This tax is based on a rateable valuation of land and buildings as determined by the relevant local authority. The standard rate of VAT is 20 percent but lower rates may apply. Taxable businesses are required to register for VAT where their turnover from the supply of taxable goods or services exceeds or is likely to exceed certain limits in any twelvemonth period. This regulation threshold will not apply to non UK resident businesses from 1 December 2012. Input tax is recoverable where it relates to taxable supplies. A taxable person must, by the end of the month following the end of each quarterly (or sometimes monthly) taxable period, file a VAT return showing the amount of VAT due on goods supplied or services performed and the amount of input tax deductible. Any VAT payable for the taxable period should accompany the VAT return. The deadline for taxpayers who pay and file electronically (which is now a requirement for most VAT registered business) is extended to seven calendar days of the following 12

Appendix 1 - UK Tax Residence Statutory Residence Test (SRT) The new test for residence seeks to provide fairness and clarity in determining UK tax residence. The test has been designed to make it harder to become non resident when leaving the UK, than it is to become resident when an individual comes to the UK. As such, distinction is made between arrivers to the UK and leavers. Part A of the SRT sets out factors which are conclusive in themselves to make an individual non-resident. Part B of the SRT sets out factors which in themselves are conclusive to make an individual resident in the UK. Part C sets out factors and rules which will need to be considered where it is not possible to determine one s residence status under Part A or Part B. Parts A and B can be summarised in the table below: Arrivers to the UK persons not resident in UK in any of the previous 3 tax years Leavers from the UK persons resident in UK in any of the previous 3 tax years Full time work Part A Conclusive Non Resident In UK for no more than 45 days In UK for less than 16 days Full time work abroad but in UK for less than 91 days, and working in UK for up to 20 days only Part B Conclusive Resident Present in UK for 183 days or more Only one home and it is in the UK (or 2 or more homes and all are in the UK) Full time work in the UK Where it is not possible to determine one s residence on the basis of the factors set out in Parts A and B, then Part C sets out five further factors, which need to be considered in order to determine residence. These take into account the number of days spent in the UK as well as five connecting factors. The connecting factors are broadly as follows: 1. Family which includes spouses and civil partners and minor children resident in the UK. 2. Accommodation the individual has accommodation which he makes use of during the tax year. 3. Substantial work in the UK. 4. UK presence in the previous 2 tax years for more than 90 days in the UK in either of the previous two years. 5. More time in the UK than in other countries. The following table summarises Part C of the SRT: Part C Days in the UK Split Year Treatment Arrivers (Persons not resident in the UK in previous 3 tax years) Leavers (Persons resident in at least 1 of previous 3 tax years) Fewer than 16 days Always non-resident Always non-resident 16 45 days Always non-resident Resident only if at least 4 factors apply 46 90 days Resident only if at least 4 factors apply Resident only if at least 3 factors apply 91 120 days Resident only if at least 3 factors apply Resident only if at least 2 factors apply 121 182 days Resident only if at least 2 factors apply Resident only if at least 1 factor applies 183 days or more Always resident Always resident Presently, where an individual becomes resident or non-resident during a tax year, split year treatment is available by way of extra statutory concessions. The Government proposes to put this on a statutory footing, broadly in line with the existing extra statutory concessions. 13

Contact Us To find out more about how KPMG can assist you please contact any of the following, all of whom would be delighted to help you assess how best to make a success of investing in Northern Ireland. Eamonn Donaghy Head of Tax t: +44 (28) 9089 3839 e: eamonn.donaghy@kpmg.ie Tom Alexander Tax Partner t: +44 (28) 9089 3880 e: tom.alexander@kpmg.ie Kevin Bell Tax Partner t: +44 (28) 9089 3764 e: kevin.tcbell@kpmg.ie Frankie Devlin Tax Partner t: +44 (28) 9089 3753 e: frankie.devlin@kpmg.ie Phillip McMaw Tax Partner t: +44 (28) 9089 3741 e: phillip.mcmaw@kpmg.ie 14

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