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Retrospective tax – Section 58 of the Finance Act 2008 debated in the House of Commons as a “probing” amendment

Thursday 20th June saw the final Committee Stage session of this year’s Finance Bill debated in Parliament. Steve Baker MP introduced his New Clause 1, which would have had the effect of removing the retrospective element of Section 58(4), which then led to a fifty minute debate on the issue.

This debate was the longest amount of time that our issue had been discussed in Parliament since the retrospective legislation was first considered back in 2008. Following discussion, Mr Baker withdrew the amendment as he correctly judged that at this moment the Government was not ready to accept it. This has ensured that NTRT have retained the opportunity for a further push either at the Report Stage of the Bill or in subsequent legislation.

We are of course grateful to Mr Baker who, against the wishes of the Government and his party whips, tabled New Clause 1 and spoke in favour of the repeal of the retrospective element of Section 58(4). While we would not necessarily agree with every aspect of what he said, he made strong and compelling arguments for the amendment to go through based on natural justice, rule of law, legitimate expectation and the principle that people’s actions should only ever be judged according to the law as it stood at the time.

We are also grateful to Conservative MPs Brooks Newmark and Sheryll Murray, both of whom highlighted the impact that Section 58(4) has had on individuals living in their constituencies, to Nigel Mills who again raised the point about the rule of law, and to Liberal Democrat MP Mike Thornton and Shadow Exchequer Secretary Catherine McKinnell who, while we would not agree with everything they said, asked some pertinent questions to the Minister which will be helpful to us as we go forward.

A transcript of the entire debate can be found here: New Clause 1 Transcript

Retrospective legislation is an offence to justice and an enemy to growth

“Retrospective legislation is an offence to justice and an enemy to growth” – that is the headline that appeared on the ConservativeHome website today in an article written by Rob Barber.

In the article, Mr Barber states the very reason a great many of us entered into a tax planning scheme in the first place:

“In 2000, the then Government introduced IR35 to combat what it saw as “disguised employment” by freelancers, contractors and consultants. However, IR35 resulted in far higher tax demands being placed on consultants who fell within its scope – more than would have been the case had they been in regular employment. It also created great uncertainty about when the provisions would apply, leaving contractors fearing future demands and being pursued for unexpected liabilities. IR35 is now recognised as bad legislation, and the Government has pledged to review it – although this has not taken place and the term “disguised employment” has simply been redefined. leaving contractors in exactly the same position of uncertainty.”

He then goes on to state our case very succinctly:

“To obtain greater certainty about their tax affairs, many consultants instead used a tax planning product that was widely marketed by tax consultancies and promoters, and which utilised double taxation agreements and trading trusts to create greater certainty. It also had the added effect of substantially reducing tax liabilities, and hence could be considered tax avoidance and a tax loophole. Nonetheless, these arrangements had been debated by Parliament as far back as in 1987, had been reviewed by HMRC and were included in their tax manual. HMRC accepted money claims under the arrangements, encouraging its dissemination and creating legitimate expectation that the practice was tolerated. Between 2000 and 2008, several thousand IT consultants, contractors and freelancers entered into the arrangements to gain more certainty about their tax position.”

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Amend ‘devastating’ tax rule Section 58, MPs tell Osborne

Eighteen MPs from five political parties have signed a letter to George Osborne urging him to use this year’s Finance Bill to amend a retrospective change to tax law, which threatens to force hundreds of IT contractors into bankruptcy.

Members of Parliament from the Conservatives, Labour, the Liberal Democrats, the Greens and the Democratic Unionists say they have wirtten to the chancellor asking him to repeal the backdated element in Section 58(4) of the Finance Act 2008.

Coordinated by Tory MP Jeremy Lefroy, the letter explains that Section 58 – known as BN66 after the Budget Note it was issued upon – made changes to the law regarding double-taxation treaty tax-planning arrangements, which were used by the contractor community.

Relied on by such freelance professionals to manage their liabilities following the introduction of IR35, the arrangements were debated and approved by parliament in 1987 and were even included in HM Revenue & Customs’ own tax manual.

Although HMRC accepted claims for relief under the arrangements (while challenging some others), the Labour government claimed in 2008 that they constituted “abusive tax avoidance” and shut them down without warning, both prospectively and retrospectively.

“Retrospective legislation is against the principles of a democratic society,” Alistair Renshaw, chairman of campaign group No To Retro Tax, which is supporting the MPs’ call for repeal, argued yesterday.

“There is [also] real concern about how HMRC acted in persuading ministers to make such sweeping and unannounced retrospective changes, going back so many years, to a practice that parliament had said was legal and HMRC had in the past approved and said could not be challenged.”

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Retrospective tax campaign warns of £528m raid on UK companies through legal uncertainty


Press information

Contact
 Carl Thomson
+44 (0)20 7138 3228 / +44 (0)7531 780 378
 carl.thomson@whitehouseconsulting.co.uk
 

Retrospective tax campaign warns of £528m raid on UK companies through legal uncertainty

24th May 2012. A campaign organisation which represents victims of retrospective tax legislation in the UK has warned that the Government’s enthusiasm to act retrospectively on tax issues could cost the country more than £528m as other countries adopt a similar approach and target British companies with retrospective and back dated tax demands.

Section 58(4) of the UK Finance Act 2008 closed down a series of loopholes which meant tax liabilities could be minimised through the use of offshore trusts and Double Taxation Treaties. These schemes were used by freelancers, healthcare workers and contractors to arrange their tax affairs following the introduction of IR35. Section 58(4) not only closed these schemes down prospectively, but also made them illegal for the entire period they had been in operation. As a result, thousands of UK taxpayers are now being pursued by HMRC for backdated liabilities stretching back almost ten years, despite the fact that the schemes had previously been acknowledged by HMRC as perfectly legal.

The Indian Government has cited Section 58(4) as a precedent for its decision to impose a retrospective capital gains tax on cross-border acquisitions going back fifty years, which have seen British companies such as Vodafone landed with a £2.8bn back dated tax bill. Although the Chancellor of the Exchequer has warned his Indian counterpart that the move will harm the investment climate in India, the Exchequer Secretary David Gauke recently told a group of MPs that the economic climate justified the use of retrospective tax in the UK.

The No to Retro Tax campaign has warned that, while HMRC hopes to raise more than £200m through Section 58(4), the loss to the Exchequer from foreign governments adopting similar measures against British companies could be even higher. In the case of Vodafone, the campaign has said that this example alone will cost over £528m – and that while Section 58(4) remains on the statute book, they will continue to be used to justify further tax raids on UK interests.

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New article published in the Conservative Home journal

The online journal Conservative Home has published an excellent article by our chairman, Alistair Renshaw:

Retrospective taxation that forces people into bankruptcy is morally repugnant

In the article, Alistair states:

“The most important feature of any tax system is legal certainty. It is generally accepted that retrospective tax changes – where people incur demands for additional liabilities and are fined for arranging their affairs in a manner that was entirely legal at the time – should only be used in the most exceptional circumstances, and even then, only when clear warning has been given in advance under the Rees rules. Retrospection damages confidence in the rule of law, which is an essential component of a competitive economy in a globalised world, and by undermining the principles of stability and uncertainty, reduces the attractiveness of the UK as a place to invest and do business.”

Recognising the hypocrisy regarding the recent spat between Osborne and the Indian government, he then goes on to say:

“The detrimental impact of retrospective changes to tax legislation has been recognised by none other than Chancellor George Osborne, who recently warned his Indian counterpart Pranab Mukherjee that proposals to impose additional capital gains tax liabilities going back fifty years on anyone carrying out business in that country – a measure that would land British companies such as Vodafone with an additional £1.4bn tax bill – would harm the investment climate in India.”

The full text of the article can be found at:

http://conservativehome.blogs.com/platform/2012/05/alistair-renshaw.html

 

An interesting and very graphic view of HMRC’s inconsistencies

NoToRetroTax came across this interesting timeline today.

Now, as we know, HMRC have conveyed through David Gauke, George Osborne and other ministers that they have always claimed the tax scheme didn’t work. In fact, as can be seen from the timeline, the earliest this was actually stated was  May 2007.

UPDATE: We have updated the timeline to include the year that the loophole was first identified in the Inland Revenue Tax Handbook in 1993! This has been acknowledged by a Freedom of Information Act request.

For a much more detailed account, please donate and join our campaign.

NoToRetroTax launch press release

The official NoToRetroTax was launched on 20th April 2012. A copy of the original press release can be found here:

NoToRetroTax Launch Press Release (PDF file)