I did a live discussion on the Jeremy Vine Show on BBC Radio 2 today on what is called ‘the loan charge'.
A background to this issue from the Chartered Institute of Tax is here.
The latest from the government on it is here.
The essence of this issue is relatively simple, if what follows from it is not. From soon after IR35 rules for limited companies came into play from 1999 onwards there have been attempts to get around those rules. A common one was for a company (‘the employer') to make a payment to an offshore trust which in turn lent fund to the person they engaged (‘the employee'). The loan was designed to never be repayable. Because, however, receipt of a loan is not the same as receipt of income it was claimed that the arrangement made the receipt by the employee not taxable.
In practice the scheme was widely marketed and it is thought more than 50,000 people were paid using such arrangements.
I have to be clear, I think all of those people should have had concerns about what they were entering into. Some, I have no doubt, were deliberately tax avoiding. And it was really not hard to find out that from December 2004 the government had said all attempts to avoid PAYE and NIC would be retrospectively blocked. In addition, since 2010 it can reasonably be argued the loan charge was outlawed. Despite that there are people still selling such arrangements.
As a result, and in frustration (not least at the failure of their own attempts to clarify some of the law in the so-called Rangers FC tax case to that time) HMRC secured legislation in 2016 that said unless loans were repaid by April 2019 then the whole outstanding loan due by the employee would become subject to income tax on that date as if income was received then and was taxable at a person's then highest rate of tax - which did as a result give rise to a charge likely to be much higher in many cases than that at which any tax was avoided.
There was a massive backlash from those involved.
Let me tress, for those on high incomes who were able to take advice on their own account and who used these schemes I have no sympathy: they should have known the risks that they were taking. They have a price to pay, and need to sort out the consequences with their advisers in a claim, if they so wish.
But there are a great many who are involved who were not highly paid who were effectively given little choice but use these arrangements if they wanted to work in the modern gig economy. They were told this was the way the job was paid. What is more, many fo them did not see the benefit of the tax avoided: the purveyor of the scheme or the employer did. And they were also told the scheme was legal and all arrangements such as tax returns would be done for them as a part of it. These people took these assurances on trust and accepted them. Many of them are now being asked for tens of thousands of tax on incomes they never enjoyed and are being told HMRC will now not take more than 50% of their disposable incomes, but will do so for life until the sum is paid.
So what is the right, and what is the wrong here? First, I beg anyone not to go near a scheme. But I also suspect a majority of those on lower pay impacted by the loan scheme had no idea they were going near schemes. They were, to be blunt, misled.
So, second, I think all who sold these schemes are liable for them, and I think their professional bodies should be saying so. And what is more, they should be arranging collective arrangements for those involved to be sued: this is what a professional body acting in the public interest, as they are charged to do, should be doing. If not, question has to be asked as to their purpose.
But third, HMRC has an enormous responsibility here. There are a number of reasons for this.
The first is that anyone involved in tax who has not been regulated by a professional body has, for a long time, supposedly been regulated by HMRC, although there is no real indication that for any effective purpose they have ever taken this responsibility seriously. In that case much of the regulatory failure in these cases may well fall at HMRC's door.
Second, HMRC's claim that it is the taxpayer's responsibility to know the law a it is clear that they have taken advice and been misdirected is callously indifferent to the facts of life. I use the word callously with care.
Third, HMRC were grossly negligent in taking any effective action against these schemes for many years when they had all the information they required to do so.
Fourth, HMRC's interpretation of Sir Amyas Morse's review is similarly utterly indifferent to the situation people found themselves in. Morse tried to find some balance - and HMRC have chosen to ignore it.
I condemn tax abuse. I always have. And I always will.
I have condemned those selling tax abuse for a very long time - since before the 13+ year life of this blog. And again, I always will.
But what I have also always argued for is a tax authority that seeks to collect the right amount of tax due at the right time and at the right place. That is what tax compliance is.
And what we now know is that the payments made into these trust arrangements by the employers should have been subject to PAYE and NIC charges at the time the payments into the trusts by those employers - who undoubtedly knowingly partook of these schemes for their own gain - were made. This is what the Rangers FC tax case finally proved in 2017. In other words, the tax abuse was always by the employer and not by the employee.
HMRC went to great public expense to prove that case. I think the finding was right.
But the simple fact is that in the loan charge cases HMRC are explicitly ignoring this decision and are seeking to make people who were in effect, using the so-called Ramsay principle very clearly employees and therefore without any primary liability for settling the taxes due on their pay, liable for what they did not owe.
Bluntly this is disingenuous on the part of HMRC . That is the indestructible interpretation. And it means that in my opinion the fact now is that HMRC should go against the employers and drop the cases against the employees - unless they themselves subscribed to such arrangements for a range of clients with their own intent to avoid tax.
And if the employer is no longer able to pay there should be no right to recover from the employee.
Nothing else seems legally appropriate.
What is more though, whenever HMRC can identity a professional person engaged anywhere in the creation or supply of these schemes they should refer them to a relevant professional body to ensure that they are duly penalised - with all publicity being given. And those bodies should not be lenient: by default I suggest the penalty should be loss of professional status and fines commensurate with the losses they caused innocent clients to suffer, to be used to support those clients now.
In addition, where HMRC should have identified a purveyor of these schemes who should have been regulated by them in any way and who was not so regulated then all claims against those they sold tax products to should be waived, automatically.
I stress, none of this would apply to those were there was no employer: anyone using such a scheme was in that case responsible for their own choices. But in employer/employee arrangements - where it is now clear that the liability for all tax owing should always have rested with the employer - this strikes me as the only fair outcome in these cases. And I have to say I think Sir Amyas Morse got his advice to the government seriously wrong as a result: as a matter of fact his conclusions look to be based on an inappropriate interpretation of the law, based on any reasonable extrapolation of the Rangers decision.
Comments are welcome on this, of course. But please don't say I have gone soft on tax abuse. my logic is clear, and I have noted it. What I am seeking is tax justice, a competent and fair tax authority and the appropriate apportionment of blame and liability for actual abuse, and it is abundantly clear that in most cases where the loan charge applies the outcome is a long way from delivering any of those things. I want an end to tax abuse, and its sale. But I also want a fair tax authority that itself respects the law, which I am not convinced is the case here. And I believe justice must be equitable, and in many of these cases that is far from the case. Tax justice is a broad concept and requires that it is seen to be done. The loan charge does not deliver tax justice in most cases. It's important to say so.
NB: For those not familiar with this blog typos come as part of the deal: the above was written on 45 minutes on a train and they're a consequence of speed in pursuit of timeliness.
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Unfortunately, it gives the tax profession a bad name.
Yes, the contractor should be responsible for their tax affairs but the manipulation by the profession and industry is staggering.
It appears no different to the abuse of ’employees dressed up as contractors’ who will be negatively impacted by the IR35 changes. A layperson such as a lorry driver would never set up a PSC if not driven by an aggressive employee.
The last point is the whole issue
It’s worse than you think.
I have actually had to deal with social workers engaged through these kinds of arrangements. Local governments were engaging them in this way using a chain of agencies and offshore companies and yes non-repayable loans, funny shares, capital gains, the whole kaboodle.
Bottom line the government was actually I believe a scheme promoter.
Some people got badly burned.
HMRC engaged contractors on these arrangements
Ey? So HMRC placed contractors onto the same LC scheme for which they are aggressively hunting down freelancers / contractors for?
They knew their contractors were on it, I am reliably informed
I think I broadly agree with much of this. At the very least it’s food for thought, as I hadn’t really thought about such a high proportion of the users having effectively been coerced into it.
I’m intrigued, though: how would you draw the line between circumstance where there was – in substance and/or under Ramsey – an “employer”, and where there was not?
The payments to the Rangers players would have been subject to PAYE had they not used the scheme. So too, presumably, would have been those to the club’s executives. Rangers was therefore the Ramsey employer under both. Presumably you would not intend the latter group, in particular, to be exempt from the loan charge?
What sort of fact pattern do you have in mind that would indicate that there is no “employer” for these purposes? Perhaps the individual exercising management/control over the business?
I will blog this
There are different types of users of these loan arrangements. The promoters were actively looking for new markets over the last two decades because it was a very lucrative business for them.
They include:
1. Wealthy individuals
2. Small Business Owners
3. Contractors/temp workers
If you were to apportion blame to the end users then there will be some in all of the above categories who may appear to be more culpable than others but how do you prove this in a fair way? Some of these users did it many years ago and so no longer have any of the original sales material to prove they were duped.
You could argue that those in the final category were forced into these arrangements by their employers but again how do they prove this? Some were and some were not. Some who were forced may be able to prove it with documental evidence and some won’t.
You could argue that those in the final category did it as a way to work around IR35. Was this their only option?
I do believe that further discriminating end users is dangerous because the majority of the above were innocent in the fact that they were missold these complicated tax arrangements by chartered accountants and tax specialists but Jesse Norman has publicly declared in parliament that HMT/HMRC cannot go after the promoters because they have done nothing illegal. Also, a lot of the promoters have since liquidated their businesses so telling the end users to generate the appetite and funds to sue the promotors isn’t a sensible idea either.
The elephant in the room, of course, is the fact that these loan arrangements were not illegal otherwise why the need for the loan charge?
The loan charge should be made prospective from when it received royal assent in 2017 like most other laws that don’t involve criminal activity/fraud.
(Apologies for any typos or bad grammar. I am not on a train. I’m just a bit thick 🙂
Of course HMRC knew, they have the same pressure to save costs as anybody else.
My favourite recent court case is an IR35 one where, on introduction of the public sector IR35 rules, HMRC lost a case where they were arguing that someone working for them was a contractor and not an employee. Delicious irony in there somewhere.
Re: your final comment on typos…. The content / meaning of your blog is what is important, NOT the spelling…!
Thanks
[…] commentator on the blog asked a question in the light of my criticism of HMRC's management of the loan charge, posted yesterday. Zacchaeus […]
I think the issue is one of control – who effectively controls the arrangements. That should be clear in the majority of cases. Where there is no control – i.e. the unwitting social worker, lorry driver etc. then no charge ought to arise on those people personally.
I have commented about the abuse of limited liability, where I think there should be personal liability attaching to directors/shareholders who create, promote or administer unlawful schemes. This would include the promoters of e.g. pension stripping who leave the unwitting with huge and unexpected tax bills.
I agree with you on the abuse of limited liability
You say ….“The Loan Charge law needs to be withdrawn..It was superseded by the Rangers decision”
This shows a complete misunderstanding of the Glasgow Rangers case.
The whole point about loan planning was that the payments were expected to be loans. i.e. theoretically repayable. In the Glasgow Rangers case all the planning was fatally flawed and the defence collapsed because it was shown that agents acting on behalf of the players had insisted on side agreements which accepted that the loans would never be repaid.
The decision in the Rangers case was not that a loan should be considered as taxable income, but rather that if something is earnings it is taxable on the employee even if the recipient of the payment is a third party.
In this case, the evidence was that the money was earnings even before it went into the EBT. They were not loans, as evidenced by the side agreements.
You simply could not use that case as a precedent to go after other loan arrangements which had been set up properly. This would be understood by any “tax expert”..
Teo people post identical comments?
Really?
Who is trolling here?
I strongly suspect neither of you has a clue what you are talking about