Reply to: Sympathy for the Devil

[PokemonStay]

Phil is part of the solution to loan charge - not the problem.

All those whining about retrospection - where were you in 2008? No doubt pleased that they were not effected. Only 2 CUK posters stood up to the baying hoardes, while the mods encouraged them from the sidelines.

Those who now want the blood of the people who are caught by the loan charges, just remember cojak has predicted a distopian "future of contracting". Which will happen. Contractors seem to maintain that they are real contractors, everyone else is a tax evader. They cannot get that that HMRC want to decide the tax due with no reference point. IPSE are loving it as there are more chances for tea and biscuits at government offices.

To show you what you are up against, look what David Gauke said in 2008 and 2012: -

Gauke 2008
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The retrospective nature of the clause is deeply troubling. We fully share the Government’s concern about the issue that it is trying to address. There is a problem with the arrangements and it is perhaps more than just a kink in the system, as the Economic Secretary put it. Trading profits derived from UK land are being received tax free by UK residents and domiciled individuals because of schemes involving the establishment of offshore trusts, specifically in the Isle of Man.

The existing legislation appears to deal with the issue where the UK residents or domiciled individuals are partners in the relevant offshore funds, but it does not seem to work where the partners are trusts and the UK individuals are benefiting from the arrangement. There is not a problem with trying to address that point, but there is a point of principle here. The proposal essentially states that the amendments contained in the clause are to be treated as always having had effect. Either the law exists or it does not. It is troubling when the Government state that the law in the past is something because that is what they say it is now. That is essentially what subsection (4) states.

This is partly an issue of simple democracy. It raises issues about EU law and legitimate expectations. I shall not pursue that point, but the hon. Member for South-East Cornwall is right to raise it. In part, it cuts to the question of the certainty and stability of the UK tax system. For investors, the idea that UK tax law is likely to be changed retrospectively is unattractive, and the UK is, for various reasons, acquiring a reputation for having an uncertain and unstable tax system, which is bad for the UK economy.

Gauke 2012
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Laurence Robertson (Tewkesbury, Conservative)
To ask the Chancellor of the Exchequer how many people had to pay additional tax following the coming into force of section 58(4) of the Finance Act 2008; and if he will make a statement.

Hansard source (Citation: HC Deb, 18 June 2012, c723W)

David Gauke (Exchequer Secretary, HM Treasury; South West Hertfordshire, Conservative)
UK residents are taxable on their worldwide income wherever it arises—including situations where it arises by way of foreign partnerships. Section 58 of Finance Act 2008 was enacted to help put that beyond doubt and in so doing, made clear that a wholly artificial tax avoidance scheme involving a foreign partnership comprised of foreign trustees did not work. As section 58 retrospectively clarified existing legislation, its introduction had no affect on any taxpayers' tax position.

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Anyway - you need Phil.

[InNZ]

Will MP's be exempt from the Loan Charge, given that they were given special exemption from other DR charges?

[ChimpMaster]

linked to/same as another point i heard...

"What if we agree (with HMRC) that it was never a loan and should be classed as income? That's effectively what HMRC are saying anyway. Therefore we cant possibly "pay it back" as its not a loan. Its income, which they didn't tax. What about the LC now? We cant pay the loan back as there isn't one, there's simply historic income, are they taxing it now? if so that's retrospective however its looked at" If its not income, then its a loan and not 'disguised remuneration'. It seems HMRC want to call it both at the same time"

But HMRC can call it both and they will, because they can do anything they want.

As per current standing, HMRC will be taxing loans as income.

And then they will be taxing them as loans so that they can claim IHT.

[phil@pmtc]

re: retrospection - HMRC's advocacy that you can avoid the LC by repaying the loan seems to conveniently ignore the fact that it's impossible to repay a loan that no longer legally exists.

linked to/same as another point i heard...

"What if we agree (with HMRC) that it was never a loan and should be classed as income? That's effectively what HMRC are saying anyway. Therefore we cant possibly "pay it back" as its not a loan. Its income, which they didn't tax. What about the LC now? We cant pay the loan back as there isn't one, there's simply historic income, are they taxing it now? if so that's retrospective however its looked at" If its not income, then its a loan and not 'disguised remuneration'. It seems HMRC want to call it both at the same time"

[MyxALot]

re: retrospection - HMRC's advocacy that you can avoid the LC by repaying the loan seems to conveniently ignore the fact that it's impossible to repay a loan that no longer legally exists.

[LandRover]

HMRC would state that its not retrospective as people can choose to repay the loan and therefore no LC will arise.

And here lies another deceitful statement that HMRC are continually pushing, including ministers who are defending the legislation.

Do people think for one moment that the loan money is sitting in high interest bank accounts? Of course not.

The money has been spent on living costs, keeping the economy going. And glad you agree on retrospective question. Of course it's new legislation, but it's intent is absolutely retrospective and no doubt about it's harsh intent!

[phil@pmtc]

I receive quite a few calls a day asking the same questions (which is fine as always happy to chat) but to assist I figured i'd answer a few of the most basic ones here:

1. Do I believe taking settlement will mean the LC does not apply?
Yes, 100%. Its not even in question as far as I'm concerned.

2. Can I negotiate the amount owed to HMRC?
No, other than when the calculations/dates used are incorrect (for example - interest incorrectly applied) or estimates have been used which we can disprove.

3. Do I think people should settle?
I don't have an opinion as quite frankly, its not my money. I see my role as an advisor to be to clarify the options available and show the outcome for each. Only the individual can make the final decision. I know what i'd do but again, that's somewhat irrelevant. As i've said to a number of people who have called, if for any reason you are unsure or want to believe that other options may arise, I actually think there's no harm in waiting. You have time yet before you need to register interest in settling (or not).

4.How long will settlement take?
Shouldn't take any time at all but out of my/your hands to an extent as dependent upon HMRC supplying the required details. I suspect it may slow down a bit towards the deadline.

5.Do I consider the LC to be retrospective tax?
Tbh i try to avoid controversial questions (for an advisor) which don't especially help move matters forward for anyone, but what i will say is that if a tax is charged on a historic year's income earned (from before the legislation was introduced) and where potentially no enquiry exists for that year and the enquiry window long since closed, then its very difficult to state that such a charge is anything other than retrospective.
HMRC would state that its not retrospective as people can choose to repay the loan and therefore no LC will arise.
I suspect that if I asked 100 people to choose which side of the argument they felt was correct, it wouldn't be a very close call.

[stonehenge]

Apologies if this question is buried somewhere in this thread. Will there not be an onus on HMRC to prove that they have attempted to collect whatever tax they believe is owing from Employers (as per the Rangers case) before they start pursuing individuals / contractors? If so, how is this likely to work in reality?

Does this answer your question?

https://forums.contractoruk.com/hmrc...-employee.html

[bandemelbs]

Apologies if this question is buried somewhere in this thread. Will there not be an onus on HMRC to prove that they have attempted to collect whatever tax they believe is owing from Employers (as per the Rangers case) before they start pursuing individuals / contractors? If so, how is this likely to work in reality?

Anyone???

[phil@pmtc]

Phil would you be able to pm the same details also please. Tried pm ing you but for some reason its now allowing it.

Done, ta

[ric_77]

Ill PM you my email address (and link to website so you can see who we are)

Phil

Phil would you be able to pm the same details also please. Tried pm ing you but for some reason its now allowing it.

[bandemelbs]

Apologies if this question is buried somewhere in this thread. Will there not be an onus on HMRC to prove that they have attempted to collect whatever tax they believe is owing from Employers (as per the Rangers case) before they start pursuing individuals / contractors? If so, how is this likely to work in reality?

[phil@pmtc]

Phil,
Thanks for confirmation that the FNs/APNs/LoR rejection letters are all deemed to be legal documents. Is there any regulation that I can use to support that claim?

Given you stated that errors within those documents might render them invalid can I PM or email your work email address?

Regards
CPBWRN

Ill PM you my email address (and link to website so you can see who we are)

Phil

[CanPayButWouldRatherNot]

Yes, as it happens my last post at HMRC was leading that team which produced the rejection letters. I can confirm errors can and indeed have meant that they were rendered invalid. Obv it depends on the error.

Phil,
Thanks for confirmation that the FNs/APNs/LoR rejection letters are all deemed to be legal documents. Is there any regulation that I can use to support that claim?

Given you stated that errors within those documents might render them invalid can I PM or email your work email address?

Regards
CPBWRN

[scottishamerican]

US Based 2019 Loan Charge

I live in the US and have done so for 5 years, and am a perm resident here.

I contracted through Bedouin for 1 year in 2008/2009 and 2009/2010 (spanning both tax years).

I have a very small UK income from a property I own, which actually translates to a loss for tax purposes. This has built year on year and I have been told should I ever move back to the US this amount would reduce my tax bill on earnings in my first year.

How will the 2019 loan charge affect me? With zero income, will the first X GBP just burn my personal allowance?

Are they going to tax me as a resident but not give me a personal allowance as one?

My amount owed is small, around 10k GBP, and easily payable, I just feel all of this is morally wrong. I already have 6k GBP set aside as a Certificate of Deposit to stop the interest rising too much.