Yearly Archives: 2020

16 Apr 2020

Anti-avoidance Rules – an update

Readers may recall previous newsletters (the last one being 4 February 2020) discussing HMRC’s view of the application of the anti-avoidance rules in Part 14 CTA 2010 which can deny the use of losses where there has been a change in a company’s ownership and a major change in the nature or conduct of a trade (the so-called MCINOCOT rules), or prior to the change of ownership the trade had become small or negligible.

We are pleased to note that the additional ring-fence trade guidance that has been under discussion for some time has now been published in the HMRC manuals (see OT21069A to C).

Comment:

 As stated in previous newsletters, we believe the combination of this published guidance, and the ability to obtain clearances in most circumstances where there is remaining doubt as to the application of the MCINOCOT rules means that in the majority of cases, provided the company changing hands has a genuine ongoing business, the MCINOCOT rules should not normally be an impediment to doing a deal. This should allow parties looking to either sell or buy companies with ring-fence losses to plan the best commercial deal without having too much concern around the tax risk associated with these measures. This is to be welcomed and will hopefully assist in getting assets into the hands of parties most likely to extract maximum value, particularly in the current climate where more companies might be finding themselves in a loss position.  CWE has already had some success in obtaining clearances in appropriate circumstances although the guidance makes it clear that HMRC will not provide comfort to companies where it is clear that loss-buying is the primary purpose of the transaction.

03 Apr 2020

Covid-19 – Tax and Fiscal Changes

Covid-19 – the currently announced tax and fiscal changes

We thought it would be helpful to summarise the recently announced Government tax measures of most relevance to the UK upstream oil industry.  In addition, we highlight some tax issues that we think businesses should be considering in light of the much-changed business environment.

PAYE, Corporation Tax and other taxes – Time to Pay scheme

The Government signalled that businesses that are suffering financial hardship due to Covid-19 may be eligible for the existing Time to Pay scheme.  When a taxpayer cannot pay its tax liabilities in full on the due date for payment, HMRC may use its discretion to allow a company to pay over a period of time.  These arrangements are agreed on a case-by-case basis.  The Time to Pay scheme can apply to all taxes.

The key elements that a business needs to be able to show for a deferral to be agreed are that the business cannot pay HMRC now and that in future it will be able to pay the deferred tax and any other tax liabilities that become due in the deferral period.  The guidance notes that businesses who cannot pay HMRC should be able to demonstrate that other creditors are also being asked to accept deferred payment terms.

Interest on underpaid tax will accrue as normal.

Comment:

We understand that HMRC is asking for evidence that circumstances that have caused the financial difficulty are Covid-19 related.  That may indicate that internally HMRC has been instructed to treat Covid-19 cases sympathetically.  Whilst it seems clear that it is a combination of the supply side and Covid-19 demand-side factors which have led to the collapse of oil prices, the Time to Pay scheme should still be available.

The general guidance provided by HMRC remains that the taxpayer needs to be able to show that it has difficulty paying now (not just it would prefer not to pay HMRC) but that it will have the ability to pay the tax-deferred.  We would suggest that reference to the forward oil price curve should provide good evidence to HMRC that any financial duress is temporary.

CT refunds and overpayments

Many businesses may find that they are owed money from HMRC either due to tax instalment payments being in excess of self-assessed liabilities, group relief claims being finalised, or loss carryback claims.

Submission of tax returns should, in theory, generate automatic refunds.  However, refunds can often be delayed as they may need approval by individual Inspectors or require the resubmission of earlier tax computations.

Comment:

We recommend all businesses review their refund position by accessing the Government Gateway and ensuring all tax owed is refunded.  We have found Inspectors can usually expedite refunds or alternatively are happy to tell companies what further needs to be done to accelerate payment.

CT instalment payments

Most upstream oil companies pay corporation tax through instalments with payments based on profit estimates for the full year.  For December year ends, instalments are due on 14 July, 14 October and 14 January of the next year.

There is some discretion within the instalment regime as to the amount and timing of payments although there are potential penalties to be considered.

If companies believe they have paid too much tax in their instalment payments as profits have been overestimated, while any overpayment of tax should be refunded automatically on the filing of the relevant tax return, it is possible to seek repayment of tax under the instalment payment legislation where the tax return has not yet been submitted.  An application needs to be made to HMRC setting out the grounds for the claim and the amount of tax overpaid.

Comment:

We would not expect there to be any material changes to the estimates which would have been made prior to making the 14 January instalment for 2019 for December year-end companies. However, many companies may now be predicting making a loss in 2020, but have paid tax in respect of 2019 with a loss carryback claim expected.  We would hope HMRC will be flexible in allowing repayments of 2019 instalments in such circumstances, but companies in this situation should consider the relevant rules carefully. We have experience of securing repayments in these circumstances and would be happy to discuss this issue further.   

VAT payment deferral

The Government has announced that all UK businesses may defer VAT payments.  Any UK business that was due to pay VAT between 20 March 2020 and 30 June 2020 are allowed to defer that payment without interest or other penalties.  No prior approval is required.  Any VAT deferred must be paid on or before 31 March 2021.

HMRC have confirmed that companies in a repayment position, or are due a refund, will have payments processed in the usual way.

VAT returns should be prepared and submitted as usual.

Comment:

UK upstream oil companies are usually in a net repayment position and hence this deferral does not provide any cash flow advantage for most.

Making tax digital for VAT

HMRC announced on 30 March 2020 that the requirement for the implementation of digital links between the VAT return and underlying financial records is to be deferred.  The new requirements were due to be implemented by affected businesses for the first VAT return submitted after 31 March 2020.  The new requirements will now be required for the first VAT return submitted after 31 March 2021.

Comment:

With the current pressure on all businesses, the relaxation of this requirement is welcome.

EU Mandatory Disclosure Rules

The UK introduced new rules requiring taxpayers and intermediaries to disclose details of certain types of cross-border arrangement to HMRC.  The regulations come into force on 1 July 2020. Reports for arrangements entered into from 25 June 2018 to 30 June 2020 will be due by 31 August 2020.

Guidance from HMRC on what transactions they expect to be reported is still expected to be published before the regulation comes in to force in July.

Comment:

It is understood that while HM Government may have wished to delay the implementation of these rules this has not been sanctioned by the EU and therefore we are currently expecting the rules to come in to force as planned.

While many may have been awaiting the HMRC guidance to understand the rules in more detail it seems clear that work will need to be started (if not already) on identifying transactions that may be affected.  With current working practices meaning many do not have access to historic documents this will prove harder to achieve.

Companies House – 3-month filing extension

Companies House has announced that companies can ask for a three-month extension of their accounts filing deadline if the accounts are going to be filed late due to Covid-19.  This applies to both private and public companies. The application to extend must be made before the due date for filing the accounts.  The statement from Companies House states that the extension is “automatic and immediate”.  The online form asks companies to include the reasons why more time is required and where the reason given is Covid-19 the extension should be granted without delay.

Comment:

An extension will allow private limited companies up to 12 months to file their accounts after the year-end.  An extension to file tax returns late has not been granted so tax computations and returns will still need to be filed 12 months after the year-end. 

This may put considerable time pressure on the preparation of tax returns if the full extended period for filing the company’s accounts is needed.  Tax return preparation procedures and timetable may, therefore, need to be reconsidered.

Financial accounts – deferral for listed company accounts and guidance

Separately to the Companies House exemption, the Financial Reporting Council, Financial Conduct Authority (FCA), Financial Reporting Council (FRC) and Prudential Regulation Authority (PRA) made a joint statement on 26 March 2020.

The FCA is permitting a delay in the publication of audited annual financial reports for listed entities from four to six months from the end of the financial year.  The FRC statement “urge[d] all those companies that feel it appropriate to utilise the additional 2 months”.

The FRC issued guidance to auditors and companies.

Comment:

It is clear that most companies will need time to work through what the economic effects of Covid-19 will mean for financial statements.  The implications for carrying values of assets and recognition of deferred tax assets will not be the only area of focus. 

We, therefore, would expect considerable delays in the finalisation of some financial statements.

27 Mar 2020

Finance Bill Commentary

The Finance Bill was published last week alongside a number of new consultations.

Finance Bill

Non ring-fence corporation tax rate

The Finance Bill included confirmation that the non ring-fence rate of corporation tax for the year to 31 March 2021 is to be 19 per cent.  The Bill also repeals the provisions in an earlier Finance Act that was to reduce the rate to 17 per cent and has included a provision that sets the non-ring fence rate of corporation tax for the year to 31 March 2022 at 19 per cent.

The provision to increase the rate to 19 per cent was included in the resolutions passed by the House of Commons on Budget Day.  The Provisional Collection of Taxes Act 1968 applies to the corporation tax rate increase.   Therefore, this constitutes substantive enactment for IFRS and UK GAAP purposes and therefore will affect tax accounting for periods ended after the Budget Day resolution on 11 March.  For US GAAP purposes, the law has not yet been enacted and, as the second reading of the Bill has not yet been scheduled, is not expected to enacted (ie on Royal Assent) before 31 March 2020.

Comment:

These changes had been announced previously and will have a limited effect on oil and gas businesses. There is no change to the rates of ring fence corporation tax or supplementary charge. Given the recent collapse in the oil price, the industry may want to lobby Government to reconsider these rates unless the price recovers in the short term.

Research and Development Expenditure Credit (RDEC)

The Finance Bill includes provision for the increase in the RDEC rate for non-ring fence activities from 12 per cent to 13 per cent for expenditure incurred after 1 April 2020.

While not included in the Finance Bill, the explanatory notes published alongside the Finance Bill confirm the ring-fence rate of 49 per cent is to be maintained.

Comment:

It is disappointing but perhaps not surprising that the same increased incentive has not been offered to the upstream sector.

Leases

The Finance Bill includes some clarification amendments to the rules that deal with the introduction of IFRS 16 (lease accounting).  The amendments seek to deal with uncertainty where companies had implemented IFRS 16 early.  The changes seek to make it clear that the spreading rules that apply to the difference between the lease creditor and right of use asset also apply to early adopters of IFRS 16.

Other matters

HM Treasury also announced last week that the proposed changes to off-payroll workers will be deferred to 6 April 2021.  The announcement said that delay was due to the spread of COVID-19 and was to help businesses and individuals deal with the economic impact of COVID-19.  The announcement also made it clear that this represents only a delay of the introduction of the proposals and not a cancellation.

Although not of major significance for oil and gas companies, the relief under the structures and buildings capital allowance is being improved to allow costs to be claimed over 331/3 years rather than 50.

Rules limiting the use of carried-forward capital losses by companies, similar to those previously introduced for non-ring fence trading losses, are to be introduced with effect from 1 April 2020. Capital losses within ring fence companies are relatively unusual but losses on disposals of field interests are specifically excluded from the new rules.

Tax rules are to be amended to support UK investment in intangible fixed assets.  From 1 July 2020, a company can now claim relief on intangible fixed assets purchased from a non-UK group company.  However, oil licences and related intangibles remain excluded from the regime.

A Stamp Duty and Stamp Duty Reserve Tax anti-avoidance measure is being introduced to counteract certain contrived arrangements.  The measure will extend the market value rule to the transfer of unlisted shares to a connected company where the consideration received includes an issue of shares. Previously the rule had only applied to transfers of listed shares.  This measure is not expected to apply to commercial transactions.

Consultations

Uncertain Tax Provisions

HMRC published a consultation on the notification of uncertain tax treatments proposal that was announced at the Budget.  Key elements of the proposals are set out below:

  • The rules are expected only to apply to large businesses; being defined as one which has turnover over £200m per annum and/or balance sheet assets of more than £2 billion. The current intention is to have a de minimis reporting threshold of £1 million of tax at stake per uncertain tax treatment per year.
  • The document states that an uncertain tax treatment is one where the business believes that HMRC may not agree with their interpretation of the legislation, case law, or guidance. It is expected that guidance will be issued to provide examples of areas that HMRC would expect notification.  The capital/revenue divide is included in the consultation document as an example of an area of common uncertainty.

The closing date for comments is 27 May 2020.

Tax advice market

HMRC published a call for evidence on “Raising standards in the tax advice market”.  The document follows the independent loan charge review that was published in December 2019.  The review found evidence that many taxpayers were influenced by some tax advisors that were promoting loan charge schemes.  The review highlighted that the tax advice market was not working and recommended that the Government publish their strategy to introduce a more effective system of oversight (which may include regulation of the tax advice market).

The call for evidence includes numerous options that could be implemented.

The closing date for comments is 28 May 2020.

LIBOR withdrawal

HMRC published a consultation on “The taxation impacts arising from the withdrawal of LIBOR”. LIBOR is to be withdrawn in 2021.

Many agreements between unrelated and related parties use LIBOR as a reference rate to determine the amount of interest to be charged on a financing arrangement.   It is anticipated that other reference rates will be used after the withdrawal of LIBOR but these other reference rates will not operate in the same way as LIBOR.

The accounting treatment of the changes to each financing arrangement will need to be considered carefully and that may have an impact on the taxation implications.  For example, where terms of a financing arrangement are amended that may result in a profit or loss being recognised and subject to tax.  Another area highlighted in the guidance is transfer pricing.

In addition to the amendments that will need to be made to financing arrangements, LIBOR is used in tax legislation (exclusively in the plant and machinery leasing code) and these references will need to be amended.

The closing date for comments is 28 May 2020.

Comment:

The Finance Bill included no surprises for the industry. 

The consultations may be relevant for some and affected businesses have just over two months to contribute where appropriate. A number of these proposals could have a major impact on the way companies conduct their tax affairs and we will be examining these in more detail and discussing potential consequences with relevant clients prior to the consultation deadlines. 

19 Mar 2020

Covid-19

During these difficult times, we hope that all of our clients, contacts and colleagues are keeping well.

All of our staff are now working from home on a regular basis. This is something we have been doing on a lesser scale for a number of years and we are confident that, for now, we are able to continue to provide the same level of service as normal.

Most contact is by way of email but if you want to speak to any of our team they can be contacted on their mobile phone numbers below.

PHIL GREATREX                                                07712 880 458

PAUL ROGERSON                                             07736 498 846

ANDREW LISTER                                               07912 572 928

JANUSZ CETNAROWICZ                                    07736 498 847

IAN HACK                                                          07913 631 950

TAUSEEF ABSAR                                                07796 328 478

KATE BUSHELL                                                  07940 473 311

CHRIS WATERTON                                            07747 792 714

LEON SROKA                                                     07984 420 418

 

CW Energy LLP
19 March 2020

11 Mar 2020

Budget 2020

The Chancellor delivered Budget 2020 today.

The Budget contained no significant changes to direct North Sea taxation and confirmed that RF rates would remain unchanged.  There was no announcement in respect of the transformational sector deal that had been included in the Conservative Manifesto.

Announcements that may be of interest include:

  • Confirmation that the main rate of corporation tax is to remain at 19 per cent, rather than reduced to 17% from 1 April 2020 as previously enacted. This is significant and has been costed as increasing the tax take by over £30bn in the forecast period;
  • The main rate of Research and Development Expenditure Credit to increase from 12% to 13%. We assume that the ring-fence RDEC rate of 49% will remain;
  • The introduction of a requirement from 2021 to notify HMRC where an “uncertain tax treatment” has been taken in submitted computations. The rules are only to apply to large companies with the size limits seemingly matching the Senior Accounting Officer regime (relevant balance sheet total exceeding £2bn and/or a turnover exceeding £200m);
  • The previously announced changes for off-payroll workers and the 50% restriction to using carried forward CGT losses are included.

Comment:

A largely welcome Budget for the industry with thankfully no surprises.

CW Energy LLP
11 March 2020

04 Feb 2020

Change in ownership – availability of carried forward trade losses

The anti-loss buying rules, where applied, deny companies under new ownership the benefit of carried forward unused tax losses in place at the date of change of ownership. They apply where there has been a major change in the nature or conduct of the (company’s) trade, or where, prior to the change in ownership, the scale of the activities in the trade has become small or negligible without any significant revival.

Companies undertaking oil and gas exploration, appraisal and development can accumulate significant losses prior to production and the industry has therefore been particularly concerned about HMRC’s policy and practice in implementing these rules. The rules are potentially widely drawn and as a result, have acted as an impediment to sales of oil and gas assets.

At industry’s request, HMRC undertook to provide guidance on how they saw the rules applying to ring-fence trades. However, it is over 2 years since HMRC produced a first draft of their proposed guidance. This guidance sets out HMRC’s view that it will be unusual for the rules to apply to ring-fence transactions and also includes a commitment to allow companies to apply for clearance, in cases where there still may be some uncertainty.

Given HMRC’s increased vigilance on the use of losses and the continuing delay, there had been some concern that this guidance might not be finalised. However, we are pleased to hear that HMRC has now committed to publishing guidance in the Oil Taxation Manual with the redrafted content conforming broadly to what has been discussed previously with industry.

Additionally, although the wording has been tightened up since the previous draft was shared with industry, HMRC has stated that there has not been any change in policy since the matter was discussed a couple of years ago.

The redrafted guidance reiterates HMRC’s position on loss-buying, warning that the guidance cannot be relied upon where companies are seeking to enter into transactions the main purpose, or one of the main purposes of which, is to gain a tax advantage, and that HMRC will not provide clearance where loss-buying is the primary purpose of the transaction.

On the other hand, HMRC will give clearances on the question of whether they will take the view that a major change in the nature or conduct of the trade has or will occur, where the buyer can show they are acquiring a genuine, viable and commercial trade, albeit possibly requiring some changes to move it into profit. CW Energy has experience of obtaining a number of such clearances in the last couple of years on the basis of the draft guidance.

There will, of course, be grey areas and doubts that arise from particular circumstances, but the guidance will provide a significant level of comfort for a whole range of transactions and where necessary we expect that companies will to be able to obtain HMRC clearances on the issue in respect of planned transactions provided of course they are not tax-driven.

February 2020