Tax compliance

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Several people have challenged me about what tax compliance might be in comments in other postings on this blog. So I thought I'd better tackle the issue again.

Tax compliance means complying with the law. The spirit of the law. Not seeking to get round the law. In which case of course incorporation is allowed. I dispute that it's always worthwhile for small business though. I think many would be much better off as LLPs, but since it is allowed it cannot be avoidance, in principle.

I'd add that I think the government were wrong to castigate those who incorporated as avoiding tax. It seemed to me that they were planning to give a tax break to small business when they offered the nil rate band. If that was not their intent they should not have done it. People who incorporated complied with the law, subject to one condition. They did not comply if they then spun the benefits around the whole family when there was only one real earner in the business. The economic rate of return on a nominal £1 invested is not up to 50% of the profits which clearly come from labour. The settlements legislation has been appropriately used to attack this - and any practitioners who did not know this was possible had, in my view only themselves to blame. I took it into account in the 80s and nothing changed my opinion since.

Why is this avoidance when incorporation with the benefit (even if as dividend) being paid to the person who does the work compliance? That's simple to explain. The economic substance of an incorporated company paying a return to a person who undertakes the work for the company that generates its profit is aligned in his case with the tax burden. This is within the spirit of the law. If the government in that case does not want them to enjoy the income as a dividend they have to change the law, as Norway, for example, has. But spreading the income to family members who did not work for it does not reflect the economic substance. So that is avoidance.

The thinking is simple. It's a threefold process:

1) Is the economic substance / benefit of the transaction being considered aligned with the person who picks up the taxation liability or tax relief?
2) Did the government clearly intend this option to be available (even if it appears daft that they did)? I stree, a choice between options at this stage is perfectly acceptable tax planning. It is rare that there is only one option available. Tax planning does not go away when one is tax compliant.
3) When all cards are face up on the table could you defend the allocation of income or the claim for a tax deduction as reflecting the economic substance of the transaction, tax legislation and the clear intent of Parliament and the Treasury (the latter being necessary since I accept that Parliament's review of legislation is too cursory t ensure this a sufficient test, whatever i might desire).

If you can be sure of these things there's a good chance you're tax compliant. Which means you can sleep at night, and so can the taxpayer you're representing if you're an agent. That's the economic benefit of this. And I reckon the value if a good night's sleep pretty much incalculable.

Of course judgement is still required. But the management thinking process is different if one is tax compliant rather than being a tax avoider. That is the key change it reflects. There will be a change in tax liabilities on occasion as a result, although frequently it may be immaterial. But let's also count the benefits:

1) Much reduced risk of tax investigation
2) Reduced risk of unforeseen liabilities, which can be crippling
3) Enhanced ability on the part of the adviser and client to concentrate on entrepreneurial activity, where money is really made
4) Ability to hold one's head up high (I'm serious - paying the right amount of tax can make you feel good - I've advised people who have paid millions who have felt relieved to have an adviser who gave them permission to do so)
5) Peace of mind

It's a winner.


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