News
Feb 2010
VAT
HMRC have announced that when they receive VAT payments by cheque through the post they will treat the money as having been received on the date when cleared funds reach their bank accountFeb 2010
You cannot be serious
The Inland Revenue is concerned that members of the public are receiving advice on how best to manage their affairs.Feb 2010
Professional privilege applies only to solicitors
The High Court has ruled that legal advice privilege does not apply to tax advice given by accountants. Privilege is confined to advice and assistance given by lawyers.Jan 2010
Problems with the Nil Rate Band Transfer
In 2008 the Government introduced a welcome Inheritance Tax relief. When a widow or widower (or bereaved civil partner) dies, their estate can benefit not only from their own tax-free band, but also from so much of any tax-free band as remained unused when their late spouse or civil partner died.Income Tax at 50% for Higher Rate Taxpayers
Directors of many small and medium sized companies have engaged solicitors and accountants to help them avoid the new 50 per cent income tax rate.The Spanish Property Inheritance Tax Time Bomb
Non-Spanish-domiciled property owners in Spain are sitting on a ticking Inheritance Tax (IHT) time bomb. Most owners do not understand that their heirs and their estate will pay IHT in two jurisdictions, Spain and their country of domicile.GLB (alternative sexual orientations)
HM Revenue & Customs has issued a new leaflet specifically for people with alternative sexual orientations, advising them on the tax implications of civil partnerships.Inheritance tax
The tax laws allow you to leave an estate worth up to £325,000 (2009/2010) without having to pay any Inheritance Tax. Tax on the rest of your estate will be charged at 40%.Probate Valuations
In the case of Cairns v Inland Revenue the executor of Mr Webb applied for
probate of his estate. The estate included a house, not in good condition, which
had recently been valued and the executor adopted that value and declared it as
the value of the house at the date of death. He was proposing to sell it as soon
as he had probate, and indeed he did so for £200,000 more than the valuation. He
declared the enhanced value to the Revenue so that he could pay tax on it. But
the Revenue, although accepting the tax, tried to levy a penalty, saying that he
should have declared that this was only a provisional value.The Budget 2009
The Budget 2009 brings 50% income tax for individuals earning over £150,000 a year, or for trusts receiving income of more than £1,000 a year.Lasting Powers of Attorney
Lasting Powers of Attorney were introduced at the end of 2008. Unlike Enduring Powers of Attorney (which they replace) they can be quite complex, and are considerably more expensive than EPAs, but they give certain protection against abuse, to which EPAs were prone.New Practice
I started in my own practice on 17th March 2009.
They have published a consultation paper suggesting that it should be a criminal offence to give someone advice about how to pay less tax, even if you are not employed as a tax adviser; even if you do it for nothing; even if a third party asks you to advise the taxpayer; even if the advice is given in an article in a newspaper.
In their consultation document they refer throughout to "deliberate wrongdoing" by the adviser. Then they go on to explain what they mean by that - "an act that is capable (directly or indirectly) of bringing about a loss of tax". I think we know who would be suffering the loss, and it isn't the taxpayer. It's any loss to the Revenue.
This would mean that a man in a pub who advises you "buy an ISA" will be guilty of a criminal offence.
HMRC have held back their legislation for the time being, for second thoughts.
Where information or a document is privileged, a party is entitled to withhold it from others who would otherwise be entitled to demand it (such as the Inland Revenue) or the court. Privilege is often classified under two sub-headings - legal advice privilege and litigation privilege:
Litigation privilege attaches to confidential communications between a lawyer and his client or a third party, for the main purpose of litigation which is either pending or reasonably in prospect.
Legal advice privilege attaches to confidential communications passing between lawyer and client for the dominant purpose of obtaining or giving legal advice. It would cover for example advice given to a client by a lawyer on tax planning options.
The High Court was concerned only with the scope of Legal advice privilege. It held that Legal advice privilege only applies to legal advice and assistance given by a member of the legal profession, not by accountants.
An appeal to the Court of Appeal is likely. In my view, however, it is unlikely that such an appeal will succeed. The judge decided that he was bound by Court of Appeal authority to find as he did, and the Court of Appeal is obliged to follow its own earlier decisions. As things currently stand, it would be prudent for clients - particularly in high value or complex transactions - to obtain tax advice from lawyers rather than accountants. Advice given by lawyers is protected by Legal advice privilege. It will be difficult, however, following this decision to ensure that advice given by accountants is capable of being so protected. Advice from accountants may, therefore, have to be handed over to HMRC should they request it.
But quirks in some old rules mean this relief is not available to many where the earlier death occurred before March 1972. The Low Incomes Tax Reform Group (LITRG) has challenged this anomaly, but to no avail: Ministers have rejected their pleas to reconsider.
Inheritance Tax (IHT) is a tax that worries many people, even if it does not raise a lot of money in the great scheme of things. It is in principle a simple tax: whatever assets you leave behind on death are valued and the total value over a set amount (the "Nil Rate Band") is subject to tax at 40%. There are various exemptions and reliefs (a key one being transfers to a spouse or civil partner) and some lifetime charges; but that simple framework will serve.
The Nil Rate Band Transfer
One recent change very much for the better, which allayed a lot of fears and made people feel the tax would operate more fairly, was the "Transferable Nil Rate Band". Under this, from October 2007, a deceased person whose previously-deceased spouse didn't use all of their IHT Nil Rate Band (NRB) can make use of any unused proportion. So with the NRB currently £325,000, this means that a married couple can have the benefit of the first to die leaving everything to the surviving spouse (exempt from IHT) with the survivor being able to anticipate a total effective NRB of £650,000. That has saved a lot of worries and artificial planning.
However like so many tax issues, this admirable change brought with it some unfairness. One concerns a small number of elderly people whose spouses died many years ago. Despite the best efforts of the LITRG, they have been unable to persuade the Government to rectify the anomaly and cure the unfairness.
The Unfairness
The situation concerns someone whose spouse died many years ago, while Estate Duty was in operation. (Estate Duty was the forerunner of Capital Transfer Tax, itself the forerunner of IHT.) Before March 1972, when a modest spouse exemption was brought in, someone who died and left their property entirely to their surviving spouse was always chargeable to Estate Duty. They used up all of what we today call the nil rate band, which means that, under today's rules, the surviving spouse has no additional Nil Rate Band available on their death. (The balance was that Estate Duty had a "surviving spouse exemption" but that is of little value nowadays.)
The LITRG has come across a small number of individuals affected by this: mainly long-widowed, now elderly, ladies, who feel very unfairly treated by the new rules. Had their husband survived until March 1972, in many cases they would not be looking at an IHT bill on their own estate.
Attempting a Cure
The LITRG took up the issue and drafted amendments to the Finance Bill 2008 (which put through the transferable NRB rules) to rectify the situation. Although sympathetically received by the Opposition, the Government rejected the change. The main reason seemed to be one of difficulty in sorting out the situation after all these years.
Subsequently they made common cause with Rob Marris MP, who has a constituent affected by the anomaly and who rapidly saw both the unfairness and the ease of fixing it. They had meetings and correspondence with HMRC and the responsible Minister. Their joint arguments were carefully considered, but no changes resulted.
Reasons for Leaving the Unfairness Alone
The HMRC/Ministerial argument against making a change seems to revolve around the difficulties of opening up old estates. This is true to a degree in that there will be a need to ascertain what happened when the first spouse died... but that is no different from any situation affected by the NRB transfer, only further back in time. Also, they argue that arrangements were made at the time under the rules then applying - but, the LITRG say, that's true of every estate now generating a NRB transfer. Changing things now, say the Government, would create inconsistencies with estates on which tax was paid at the time. The LITRG disagrees: they are not asking for the 1970 or whenever estate to be reopened: just that they be looked at from 2010 in the same way as other earlier deaths are, ie that leaving everything to the spouse at the time leaves a NRB available.
The (non) Result
It seems we are to be left with a handful of elderly widows and widowers, many of whom had to cope as single parents for 40 years, feeling very unfairly treated. Rob Marris's constituent is a typical example: she was left a few thousand pounds by her late husband, but that has served to mean she can't leave her house (effectively her only asset) IHT-free to her children. Of course asking for a tax change that costs the government money at this time is hardly going to be popular. Many would argue that the beneficiaries would be the children, who may or may not be well off now, although all are likely to have had a childhood blighted by the loss of father or mother, perhaps with little money around. The change needed here is simple, would cost a negligible amount and would remove a tarnish from an enlightened and sensible tax measure. Why can't that change be made?
The reason is that in Spain the individual inheritor is taxed, whereas in other countries, like the UK, it is the estate that is taxed. This could mean that on the death of an owner, the surviving partner, or the owner's beneficiaries, could have a tax bill that virtually wipes out the entire Spanish inheritance.
Most lawyers in Spain recommend to owners that having a Spanish Will deals with the problem. This is incorrect as a Will only deals with the issue of probate when there is a death, and does not remove taxation in Spain.
Other advice given is that Double Taxation Treaties between Spain and the UK help reduce or eliminate the tax. This is true with identical taxes but these are not. In the UK it is the estate which is taxed and in Spain it is the beneficiaries. Therefore it should not be assumed that one tax can be offset against the other. They are totally different taxes on totally different entities.
Owning a property with your children is a favourite piece of advice, but this is not a good idea, as their share of the property may be at risk.
There is a simple solution to this, and if you are in this position you should seek advice.
Since 9th October 2007 spouses and civil partners have been able to transfer their Nil Rate Band allowances so that any part that was not used when the first spouse or civil partner died is transferred to the surviving spouse or civil partner for use on his or her death.
The transferable allowance is available to all survivors of a marriage or civil partnership who die on or after 9 October 2007, no matter when or where the first partner died.
The judge held that not declaring the value to be provisional was a minor
technical error of no consequence whatsoever and dismissed the Inland Revenue's
case.
An LPA has to be registered with the Court of Protection before it may be used, but the drawback is the expense in Court fees, and the expense in extra work at the outset. The Court of Protection is also currently taking five months to register documents!