November 2013

In this issueCharity accounts are changing – page 2

digital giving – page 4

VAT and Christmas mailings – page 6

PrivateClientRuralBusiness

December 2016

In this issueThe 2016 Autumn StatementWe outline the key announcements in the 2016 Autumn Statement that are of interest to rural businesses and landowners – page 1

Clarification on ‘just and reasonable’There is now guidance on how the ‘ just and reasonable’ test might be applied for apportionment of finance costs used in a mixed property letting business – page 4

New build dwellings and VAT zero-ratingA recent First Tier Tribunal decision suggests that a new build dwelling many not have to be entirely new for VAT zero-rating to apply – page 8

Rural Business

Editor’s comment

Accommodation benefit: pitfalls for the unwary Page 6

Clarification of what is ‘just and reasonable’ apportionment Page 4

Getting ready for Making Tax Digital Page 3

The Autumn Statement 2016 Page 1

Farmers’ profit averaging Page 5

Welcome to the December 2016 issue of Rural Business.

We begin this issue with a round-up of some of the relevant announcements made

in Philip Hammond’s first – and last – Autumn Statement. There were relatively few

surprises, although we did find out that we will have an Autumn Budget from 2017.

Our first article outlines HM Revenue & Customs’ (HMRC’s) Making Tax Digital

project and how this is likely to affect rural businesses.

We provide an update, following clarification from HMRC, on what is considered ‘just

and reasonable’ on the apportionment of finance costs incurred and used in a mixed

property letting business.

Farmers can now elect to apply two-year averaging, five-year averaging or no

averaging at all to their profits. We outline how this works.

We look at the common pitfalls in the provision of accommodation for employees. The

tax treatment of this employee benefit can be complex and so care is required.

A recent VAT First Tier Tribunal decision offers new insight on whether existing

‘structures’ must be entirely demolished in order to benefit form the VAT zero-rating

relief when constructing a new dwelling.

Finally, our In brief section includes a round-up of some of the other relevant tax

changes that have taken effect since our last issue of Rural Business.

I hope that you find the contents of this newsletter both useful and relevant and

please do contact me or your usual Saffery Champness partner if you would like more

information on any of the topics featured.

Jamie Younger

New build dwellings and VAT zero-rating Page 8

In brief Page 9

1

December 2016

A major focus of Philip Hammond’s first (and last) Autumn Statement speech was on the need to increase productivity throughout the UK. To help this, the government has promised additional funding for infrastructure investment, both in road and housing improvements and on improving digital connectivity throughout the UK.

The additional funding for digital infrastructure is focused on the roll out of full fibre broadband throughout the UK, and on trials of next generation (5G) mobile. The extra government money will be supplemented by a 100% business rates relief for fibre infrastructure. Those struggling with limited connectivity – both broadband and mobile – in rural areas will hope that these changes lead to a genuine expansion of high-speed internet access across all of the UK.

On the tax front, many of the Chancellor’s announcements – including on the increase of the personal allowance to £12,500 by the end of this Parliament – amount to reconfirmation of existing policy. We outline some of the key points below.

The business tax environment

In the short term, the general business tax environment remains largely unchanged. The government has reiterated its commitment to the business tax road map issued earlier in 2016, key points from which include:

y Reduction in the rate of corporation tax rate to 19% from 1 April 2017 and to 17% from 1 April 2020.

y Reduction in business rates. In addition to the changes previously announced, the government also announced that the rural rate relief will be doubled to 100% from 1 April 2017.

y Implementation of the OECD Base Erosion and Profit Shifting (BEPS) recommendations. As expected, this will include a restriction on the corporation tax deduction for groups with UK interest costs of more than £2 million, from April 2017.

The Chancellor did not give any update on the government’s Making Tax Digital project, which will mean major changes in business record-keeping and tax reporting

requirements. A response is now expected in January 2017. You can read our article on what we do know about Making Tax Digital on page 3.

Losses

The government has confirmed that there will be more flexibility in how companies can offset losses incurred after 1 April 2017. Under current rules, a company can offset its brought forward losses only against profits of the same type; for example, trading losses can be offset against trading profits. In addition, the losses can only be offset in the company which incurred them.

From 1 April 2017, companies will instead be able to use brought forward trading losses against non-trading profits, for example, or even surrender them to other group companies. Any groups with profits of more than £5 million, however, will only be able to offset losses against 50% of the profits above that amount.

Aligning the tax treatment of different forms of doing business

The previously announced £1,000 allowances for trading and property income, aimed at those with income from the ‘sharing’ economy, are set to be introduced from 1 April 2017.

The Office for Budget Responsibility (OBR) has, however, predicted that the rise of the ‘sharing’ economy will have a direct effect on tax receipts over the coming years, and the Chancellor also identified in his speech a ‘growing cost to the Exchequer of incorporation’. The government is, therefore, considering the wider issue of how to ensure that the taxation of different ways of working is fair between different individuals, and sustains the tax base as the economy undergoes rapid change.

The 2016

Autumn Statement

2

Rural Business

This is an area already touched on by the Office of Tax Simplification, both in its employment status review and most recently in its consideration of a Sole Enterprise with Protected Assets structure, which would provide an alternative to incorporation for small businesses.

The issues are complex, and this is likely to be a longer-term project for government. We await its initial thoughts with interest.

Employment taxes

The government has announced an intention to examine “how the taxation of benefits in kind and expenses could be made fairer and more coherent”. This will include work on how benefits are valued for tax purposes and – following a Call for Evidence in December 2015 – a consultation on employer-provided living accommodation. The government

gave no hints as to what changes it might be contemplating in this area: further information is expected as part of the Budget next March.

The Autumn Statement also confirmed changes to tax relief on salary sacrifice and the alignment of the dates by which an employee must ‘make good’ the value of a benefit to prevent a tax charge arising, which had been the subject of earlier consultation.

Closing tax enquiries

Proposals allowing particular aspects of an enquiry to be referred to the First Tier Tribunal before the enquiry as a whole has been concluded have been under consideration since 2014. The government has now announced that legislation will be introduced focused on individual aspects of ‘large, high risk and complex’ cases.

In such cases, it will be possible to close non-contentious aspects of enquiries, while proceeding with the more difficult issues.

Looking forward

The Chancellor also announced that this will be the last Autumn Statement, with the Budget shifting to the autumn from next year (although only after a final spring Budget in March 2017). The new timing should allow for greater Parliamentary scrutiny of new measures before they take effect. The fact that the new Spring Statement is not intended to cover tax should also mean that businesses have more certainty over forthcoming changes, with major announcements only once each year.

The Chancellor also announced that this will be the last Autumn Statement, with the Budget shifting to the autumn from next year (although only after a final spring Budget in March 2017). The new timing should allow for greater Parliamentary scrutiny of new measures before they take effect.

3

December 2016

Getting ready for

Making Tax DigitalMajor changes to tax reporting are set to be rolled out from April 2018. Businesses need to prepare for the change – but detail is frustratingly short.

What is Making Tax Digital?

The Making Tax Digital (MTD) changes will affect how businesses keep their financial records as well as how they report figures to HM Revenue & Customs (HMRC).

All businesses, other than those with turnovers of less than £10,000 a year, will be required to keep records digitally and then submit a quarterly summary to HMRC. The full year figures will then be confirmed via a separate year end submission.

HMRC is also consulting on wider changes to the tax system under the MTD umbrella, including an extension of the cash basis currently available to unincorporated businesses with a turnover below the VAT threshold, and a move away from the use of basis periods for income tax.

When are the changes being implemented?

Unincorporated businesses will be the first group into MTD, with the regime for income tax set to commence from 6 April 2018. There may be a 12-month deferral for the smallest businesses, although no details have been confirmed. VAT reporting (for both unincorporated businesses and companies) will then come within MTD from April 2019, with corporation tax the last to be pulled in from April 2020.

What does this mean for rural businesses?

There is a lack of firm detail on MTD, particularly for more complex businesses (the consultations to date focus on MTD for straightforward unincorporated businesses). A further consultation, focusing on complex businesses, is expected, although we have no

indication of when. Businesses such as farms and estates with more complex structuring and diversified income streams are currently, to a large extent, in a wait-and-see position.

Once detail is available, businesses will need to evaluate what changes are needed to current record keeping processes to be ready for MTD. HMRC has confirmed at recent consultation events that free software will be available which, we are told, will be capable of dealing with specific tax rules such as the herd basis or farmers’ averaging. This is, though, only likely to be suitable for the smallest businesses – others will have to purchase their own software, ensuring that it has suitable security and can deal with their specific business and tax needs. Businesses will also need to consider the suitability of existing computer and related hardware and what training and familiarisation time will be required.

Another potential hurdle for those in rural areas is the availability of fast broadband and mobile connections, which may affect their ability to use software – particularly where it is cloud-based – and to submit data to HMRC. Those who “cannot engage digitally” will be exempted from the MTD requirements: it is far from clear at this point, though, how far that exemption will go.

We have been actively engaging with HMRC throughout the consultation process so far, and will continue to do so as more detail emerges – please get in touch if there is anything you would like us to raise, or if you would like to discuss how best to get your business ready.

4

Rural Business

In the July issue of Rural Business, we considered what might be a ‘ just and reasonable’ apportionment where finance costs are incurred and used in a mixed letting business of residential and commercial property, or even a residential letting and farming business. HM Revenue & Customs (HMRC) has now issued welcome clarification. The restriction of finance costs is to be introduced on a sliding scale from 1 April 2017.

Specific examples

HMRC has recently published some examples of how it envisages the just and reasonable test might be applied. It has now provided three examples which focus on a single property that consists of mixed residential and commercial use. In summary the examples are:

• For the purchase of a mixed residential and commercial property they apportion the interest based on the relative initial values of both parts of the property;

• For the conversion of a commercial property to include some residential they look at the actual money spent on creating the residential parts; and

• For general repairs affecting the whole building (eg a replacement central heating system) they look at the relative floor area of the building.

These are all useful but fairly simplistic examples. The guidance goes on to provide an example of a property rental business which has a substantial number of residential and commercial properties and notes that where such a business borrows for specific purposes, for example to acquire a new property or fund specific work, then the business owner would be expected to use one of the above methods.

The key point being that, where loans are taken out for a specific purpose, it is that purpose which will dictate whether an apportionment is needed. If the loan is solely to fund residential property then no apportionment is required, as the whole interest cost will have to be restricted.

Borrowing for general working capital

But what about borrowing for general working capital of a mixed rural business which includes let residential property? Thankfully, HMRC acknowledges that there is no set method to be adopted, but it does suggest that a comparison of relative rental income would be an appropriate method. However, the new guidance does say that business owners may chose an alternative method that is ‘preferable’.

HMRC suggests an alternative might be relative time spent by staff on each element of the business, but from our reading of the guidance, the fact that business owners are free to choose any sensible basis that is preferable to them is welcome news. It is important to note though that whichever method is adopted, HMRC will want the business owner to be able to justify the method used by reference to records and they expect it to be applied consistently unless there is a good reason for change.

The challenge now will be for business owners to start to consider these rules and guidance over the next 12 to 18 months or so to ensure that when the first tax returns for 2017-18 are submitted (from the summer of 2018) the best method is adopted at that point, so consistency is in place from the start of this unwelcome new regime.

Clarification of what is ‘just and reasonable’

apportionment

5

December 2016

5

The permitted use of averaging of profits by farmers, to smooth out the effect of fluctuating profit levels, has been with us since the late 1970s.

Previously, the permitted averaging period was over two consecutive financial years. However, in response to increasing volatility in farming profits in recent years, resulting from climate impact and commodity markets, former Chancellor George Osborne announced in the March 2015 Budget that the permitted averaging would be extended from two years to five years, effective from 6 April 2016.

The mechanics

Farmers will now have the choice of whether to apply the old two-year averaging, the new five-year averaging, or no averaging at all.

Averaging will be available where the farmer passes the volatility test, as follows:

y For five-year averaging, the average of the previous four years’ profits and the fifth year’s profits are not within 75% of one another;

y For two-year averaging, the current year and prior year’s profits are not within 75% of one another; or

y The profits of any one of the five (or two) years under consideration is nil or a loss. Where a loss exists, the result is treated as nil for the averaging and the losses are available for normal relief.

The old marginal relief, where comparative profits were in the 70%-75% bracket has been removed completely.

If the volatility conditions are met, the farmer can average his profits over the relevant number of years and treat the average figure as his taxable profit in each of those years, smoothing his tax cash outflow and in some cases generating a refund.

Partners in a farming partnership can claim averaging of their share of the profits independently of one another, depending on their individual circumstances.

Averaging claims must be made within 12 months of the normal self-assessment filing date for the latest year to which the claim relates.

Restrictions

The averaging extends only to farming profits (after capital allowances), and not to other streams of income such as leisure, rental or renewable energy production.

The averaging rules are only applicable for income tax and can therefore only be used by unincorporated farming businesses, with a financial year ending on or after 6 April 2016.

New farmers may be restricted, since a full two or five-year trading history is needed to take advantage of the averaging, and it cannot be used where trade is ceasing.

Averaging is not permitted for contract farmers or where the cash basis of accounting is used.

In summary, the extension of averaging and increased flexibility is a welcome introduction.

The magnitude of tax savings to be had from the extended averaging remains to be seen. Any further significant tax saving is likely to require large fluctuations in profitability. However, with the impact of Brexit yet to hit, such fluctuation is a distinct possibility.

Farmers’ profit

averaging

6

Rural Business

The employment tax treatment of employer provided accommodation is complex and is a key focus of any HM Revenue & Customs (HMRC) review of rural businesses. This article highlights the key points such businesses should be aware of.

Whether accommodation is to be considered a taxable benefit and, if it is, what its taxable value is, is notoriously complicated. There have been attempts recently to simplify it – most notably the Office of Tax Simplification consultation and the government’s December 2015 accommodation benefit ‘call for evidence’ based on that consultation. Having not commented in the recent Autumn Statement or March 2016 Budget, we still await the government’s feedback on the call for evidence, but it has been confirmed this will be addressed in the March 2017 Budget. In the meantime, here are some key questions to consider:

What is taxable living accommodation?

HMRC will only consider something to be ‘living accommodation’ where it “gives the occupant the necessary facilities to live domestic life independently, without reliance on others to supply basic needs”. This includes the use of a refrigerator and full cooking facilities, even if such facilities are shared. Therefore, some board and lodging and non-residential accommodation would not be taxable as living accommodation.

Living accommodation provided by an employer will be taxable unless an exemption is available, such as for employees residing in specific accommodation that is necessary for the proper performance of their duties. HMRC accepts, in most cases, that agricultural workers living on farms or agricultural estates are within the exemption. It is important to note, however, that the exemption is based on the employee’s role and care should be taken in respect of non-agricultural estate workers, for example managers or other mainly office-based staff. It is therefore important to consider why a member of staff is required to occupy the

property and ensure it can be justified as necessary for the proper performance of their duties. The terms of the employment contract should support this.

It is worth noting that if accommodation is provided under the terms of an Assured Shorthold Tenancy (AST), HMRC can argue that the employee is occupying the property under the AST terms rather than by reason of their employment and therefore not occupying for the proper performance of their duties.

How is taxable value calculated?

If the property is leased by the employer, the cost to the employer of the lease (including VAT where an option to tax has been made) is the taxable value.

For employer owned property, the taxable value calculation is complex and is not dealt with in this article. Key points to look for are: when the property was first occupied by the employee; the cost to the employer in purchasing the property; the value of any structural improvements to the property; the gross rateable value of the property; and the official rate of interest. Some or all of these factors may be taken into account in the calculation.

Do other associated charges apply?

In addition to the provision of the accommodation itself, the employer may also be providing the furniture and if this has not already been factored into the cost of the accommodation (for example where the employer is leasing a furnished property), a further tax charge will need to be considered.

Accommodation benefit:

pitfalls for the unwary

7

December 2016

7

HMRC accepts, in most cases, that agricultural workers living on farms or agricultural estates are within the exemption. It is important to note, however, that the exemption is based on the employee’s role and care should be taken in respect of non-agricultural estate workers.

If the employer has also covered some of the employee’s domestic bills there will be a tax charge, whether or not the value of the accommodation itself qualifies for the exemption. However, if an accommodation benefit tax exemption does apply, Council Tax, water and sewerage charges for the accommodation are also exempted, and the taxable value of heating, lighting, cleaning costs, repairs and furniture associated with the accommodation is capped.

How is rent factored in?

A deduction from the taxable value can be taken in respect of rent and other contributions paid by the employee. Often this rent is set at a market rate so as to reduce the benefit value to nil.

Following a recent change in legislation regarding employees ‘making good’ taxable benefits, there is potentially a risk of a benefit value remaining if the market rent is very low in relation to the original cost or sale value.

This can mean that although, in a commercial sense, there is no benefit, a net taxable benefit will arise. One such scenario is where a lease has been carved out of a larger property to enable a director to occupy a small part of a property that is not particularly attractive itself to rent on the open market.

8

Rural Business

The qualifying costs incurred in the course of building a new dwelling enjoy a generous zero-rating relief from VAT. Unfortunately, the relief has a significant number of conditions.

One of the most troublesome conditions for rural businesses is that existing structures on the site must typically be entirely demolished. This can directly conflict with the conservation agenda to retain as much of our rural heritage as possible. Such projects may still qualify for a reduced VAT rate of 5%, but not always, and any VAT payable is often not recoverable.

What is a new dwelling?

The reconstruction, alteration or extension of an existing building would not in itself create a new dwelling. However, the courts have found that if the building after the work is completed is so different in footprint, character and extent, it can be described as a new dwelling under VAT law. The relevant provision is found in the VAT Act 1994, Schedule 5, Note 16. This reasoning has been applied positively in cases where existing walls and structures have been incorporated into a ‘new’ building.

What if there is an existing structure on the site?

Existing VAT law gives some guidance under VAT Act 1994, Schedule 5, Note 18, stating:

A building only ceases to be an existing building when:

a) demolished completely to ground level; or

b) the part remaining above ground level consists of no more than a single facade or where a corner site, a double facade, the retention of which is a condition or requirement of statutory planning consent or similar permission.

The point b above does offer a very limited avenue for existing walls to be retained. The

problem is that planners may not require any façade to be retained (even if it could be agreed what the term means in all cases), but they may require some other boundary wall or feature to be retained for conservation or other reasons. A landowner may later find that the original plans were not feasible during the project and may be required to change them. A full planning revision may or may not be required after consultation with the planning office.

HM Revenue & Customs (HMRC) will often argue that if the existing building has not been completely demolished, apart from the exception for facades under Note 18(b), there cannot be a new dwelling building. Instead, what results during construction must be an alteration, extension or reconstruction of the existing building and that does not qualify for VAT zero-rating relief.

The J3 Building Solutions Limited case

The recent tribunal decision in J3 Building Solutions Limited saw a sympathetic tribunal question what the VAT relief and the Note 18 guidance was trying to achieve. It highlighted that HMRC accepted, by concession, shared third party walls with another building could be retained such as you might find in a terraced house and that a basement could be retained, several stories deep. It found the Note 18 guidance arbitrary for some of these reasons and also criticised its drafting.

The Tribunal posed and answered this question: if there was a new dwelling for the purposes of Note 16, did it matter if Note 18 concluded there was an existing building? The tribunal was prepared (cautiously) to find Note 18 did not necessarily prevent relief applying even where the existing building had

not entirely ceased to be. It was still possible to conclude that what was constructed was not an alteration, extension or reconstruction and there was a new dwelling building under Note 16.

A First Tier Tribunal decision is not binding law. However, it provides a tantalising possibility of being able to disregard Note 18 where the existing building has not been entirely demolished. Clearly, it would need to be demonstrated that the dwelling, after the work was completed, was so different in footprint, character and extent that it was not an extension, alteration or reconstruction of the existing building. The continuing problem for rural businesses, as helpful as this case decision may prove to be, is that the building contractor needs to agree VAT relief applies when they issue invoices for the construction work. Until HMRC is prepared to change their policy and accept the principles successfully argued in this and other cases more widely, contractors will be reluctant to apply VAT relief.

New build dwellings and VAT

zero-rating

HMRC will often argue that if the existing building has not ceased to be... there cannot be a new dwelling building. Instead, what results during construction must be an alteration, extension or reconstruction.

9

December 2016

In brief

VAT treatment of pitch fees decided?

The Upper Tribunal has recently released its decision in the appeal of Craft Carnival. HM Revenue & Customs (HMRC) appealed the original decision that the hire of pitches on land that had not been opted to tax was VAT exempt. The Upper Tribunal was persuaded that the event organiser was, in reality, providing the stall holders the right to sell goods and services at an event they were obliged to organise and this was standard rated.

Along with the earlier Tribunal decision in International Antiques & Collectors Fairs (IACF), HMRC now appears to have the weight of case law behind it. We hope HMRC will now issue guidance to clarify its formal policy and approach in this area as the current public Notice (742) is still potentially misleading. In the meantime, businesses renting pitches/land for organised events need to revise their rental agreements to take account of this decision. If you are in this position and are in doubt as to what to do, it is worth contacting one of our VAT experts for advice.

Accounting for farming subsidies

With the introduction of FRS 102 and FRS 105 there have been significant changes to how Basic Payment Scheme (BPS) grant income is recognised in accounts for businesses with certain year ends and also how entitlements should be recognised on the balance sheet. These new standards have the greatest impact for companies, however there can be implications for sole traders, partnerships and trusts.

For some businesses there is currently the opportunity to early adopt these standards and this could, subject to various

requirements, provide the opportunity to defer the recognition of BPS income. This deferral of the income will occur when the standards are adopted and will create a one-off timing difference, reducing the reported profits for the farming business for the year. This would mean that a proportion of the tax payable could be effectively deferred, however the balance sheet would be weakened. It may be attractive to benefit from the impact of this deferral a year early. The new standards can have a number of other implications, so careful consideration is required when implementing them.

Inheritance tax and UK residential property

Currently, UK residential property held through an offshore structure can be treated as excluded property for inheritance tax (IHT) purposes. This position will change from 6 April 2017 with all UK residential property coming within the IHT net, regardless of how it is held.

This will mean that IHT will arise on the value of shares in any offshore company which directly or indirectly holds residential property. This will include IHT on death, on transfers into and out of trust, and 10-year charges for trustees.

The government recognises that it could be difficult to identify when and whether an IHT liability arises. It proposes, therefore, to introduce powers allowing HMRC to prevent a property from being sold until any outstanding liability is paid. Furthermore, liability will be imposed on any person who has legal ownership. While these rules are yet to be finalised, it is confirmed that there will not be a ‘de-enveloping’ relief for those wishing to unwind offshore structures.

Conditional exemption: changes affecting historic tax charges

The 2016 Finance Bill affected objects exempted from Estate Duty. We suggested to HM Revenue & Customs (HMRC) that the drafting was flawed and, suitably amended, the Bill became law on 15 September 2016.

The change creates a charge for Estate Duty on the loss of an exempt object after 15 September 2016, unless the loss was beyond the owner’s control. It does not apply to a loss already notified to HMRC prior to 15 September and, as we had sought, no double charge will arise on a loss where there is a current undertaking to preserve the object.

If an object not subject to a current undertaking were lost before 15 September, but not notified to HMRC, the owner must make a return. And it might be difficult, as the law requires, to value such an object no longer available for inspection. These aspects are perplexing, and we await draft guidance from HMRC.

The new rules also allow HMRC to claim Estate Duty or Capital Transfer Tax on the sale etc of an object conditionally exempt from inheritance tax on a death after 16 March 2016, and earlier exempt from duty, or Capital Transfer Tax between 13 March 1975 and 6 April 1976.

HMRC has assured us that this option will not be available if there has been conditional exemption from inheritance tax on an intermediate death.

Saffery Champness is regulated for a range of investment business activities by the Institute of Chartered Accountants in England and Wales. Saffery Champness is a member of Nexia International, a worldwide network of independent accounting and consulting firms. No responsibility for loss occasioned to any person acting on or refraining from action as a result of the material in this publication can be accepted by Saffery Champness. © Saffery Champness,December 2016. J6616.

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