Is the new Coalition Government to introduce a general anti-avoidance rule?
So we’re here today to talk about the general anti-avoidance rule GAAR. It’s been sort of announced. Not quite sure when it’s going to happen, if it’s goind to happen and what it might mean. I would like to explore that with you today. So Jonathan….what’s the context, is it going to happen? OK, well we’ve had the Liberal Democrats tax proposals in which they said they would introduce a general anti-avoidance rule to stop businesses structuring themselves purely for tax purposes and that theme has been picked in the coalition agreement where there’s an undertaking to pursue corporate tax avoidance and expand on or look in detail at the Liberal Democrats proposals which is taking to be a reference to the introduction of a GAAR. So that’s where it’s come from in terms of how likely is it to happen. Well the Liberal Democrats in costing it with a revenue tag on it of £2.1bn which in the current economic climate is a big number and therefore it’s going to get quite a lot of attention. It’s also as Graham will perhaps would say is, a GAAR is a common theme in number of other common law jurisdictions. Is that right? Yes, in many ways you could say the UK is out of sync with most common law jurisdictions. Most common law jurisdictions have a GAAR and indeed most common law jurisdictions have had a GAAR for 20-30 years or more. So, there’s a bit of president out there overseas? There’s £2.1bn pencilled in, so prospects are pretty… You can’t ignore it. So given that it looks potentially more likely than not that it’s going to happen. What does it mean? I mean we’ve got three thing we can look at for president. We’ve got foreign jurisdictions that already have it, particularly Australia and Hong Kong. Hong Kong is interesting because of course UK judges sitting Hong Kong on guard cases. But we’ve also got the tax law review committee paper which is only 2009 paper, which actually contain draft wording for a possible GAAR. Now if you look at those sources, they’ve all got common themes. So you are going to need a transaction that has the sole of main purpose of obtaining tax advantage and you are going to then compare that transaction with the normal transaction which is the transaction you’ve undertaken absent tax considerations, and it that normal transaction would have given rise to more tax, you are going to be taxed as if you undertook that normal transaction. And indeed if you had no commercial objective, so the transaction would purely be tax motivated, you’ll be taxed as if you didn’t undertake the transaction at all. We I think there’s important additional factors in the TLRC draft that are not contained in most other GAARs adopted in other countries. First of it is actually a purpose statement, what is the purpose of this role? Most of the GAARs don’t have that. Is that going to be helpful or not remains to be seen how it’s phrased, if it’s very bland, possibly not. The second thing is the concept of safeguarded transactions which the TLRC took as protected transactions and that’s basic transactions that shouldn’t fall within a GAAR, because they are encouraged transactions, to that could be transactions which are deliberate to take the benefit of a relief that is actually provided with forum within the legislation. Interestingly when the revenue last looked at this in 1998 they also agreed there it isn’t necessary to have some sort of exclusion, the way they framed that was to talk about exert or tax planning. So if you are carrying out transaction that isn’t fundamentally motivated for tax or you carry out a transaction that seeks to get the benefit of some particular tax legislation, because that’s what it’s there to encourage. I mean we would hope so. The tax law review committee paper indicated, those safeguards or those exclusions are goind to be really, really important if this GAAR is going to function properly. What we can’t have is a situation where we’ve got wide worded legislation and then we rely on guidance to work out where the transactions are caught or not, because the paper recognises, there’s cases out there like the Gains Cooper case which says the tax payer can’t rely on guidance. So you can’t have taxation by legislation in relief by guidance. That’s going to be really important. There will be a clearing system, one assumes provided you’re prepared to pay for it. The Liberal Democrats acknowledge the resource constraints placed on the revenue by a raft of clearances needed to be dealt with and their suggestions was that tax payers pay a commercial fee for clearances. So there will be clearances there. The difficulty with clearances is, they are dependent on the revenue’s view at the time. What personnel do you have in the revenue dealing with clearances, what’s the revenue policy at that time, we can look at the anti-arbitrage legislation came in 2005 clearance procedure on that. The transactions that you may or may not get clearance for over time have changed. There’s the revenue view of the legislation has changed. So the worry is that we don’t’ have the same sort of consistency because the administrations staff said take a different view. So what was acceptable a couple of years ago is no longer acceptable. Absolutely. The playing field changes, without changing legislation. Is it going to be retrospective, are we going to have to start to look at transactions that we are doing at the moment, or that were done in the last few years. What’s the view there? One would hope not. Certainly the draft the TLRC draft suggest that proposes that it would only apply to transactions after the operative date and looking at foreign law president where most of those GAARs came in not prospectively right or retrospectively. So one way or another we were expected only apply to transactions by reference to certain date. There is however, a question mark when you look at that, which is about transactions where the benefit spans the operative date. So that’s one thing we have to study the detail when it comes out. Personally, I think the chance are truly retrospective are very slim indeed. But it does beg the question of when the operative date is going to be. I think the chances of getting something in the emergency budget on the 22 June. Very small. Conservatives have undertaken to consult on any major tax reform and this must be a major tax reform. So it think 22 June are very unlikely. Personally, I think the most likely date is going to be finance bill next year 2011, which would allow for a sensible period of consultation. But with that £2.1bn revenue tag against it, could you rule out something PBR so that they can bank that number. I don’t think you cant’. You can’t entirely rule it out but unlikely. Ok so, sounds like it’s likely to happen at some stage. Have to change out mindset the way we look at transactions a little bit, so that we do understand whether or not they are motivate for tax purposes or not. OK if we are trying to get the benefit of tax legislation that’s good. AUCs president says that there hasn’t been massive change in a way tax payers behave, but greater uncertainty and a risk of the administration changing over time the way the GAAR gets interpreted. Jonathan Graham, thank you very much.
From the various communications that have been released over the last few weeks, it looks possible that the new Con-Lib coalition could introduce a general anti-avoidance rule (GAAR) aimed at raising £2.1bn of corporation tax per year (based on Lib Dem estimates). Although it may not be introduced on 22 June, with reducing the deficit a key priority for the coming months, will the possible yield prove too attractive to leave it much longer?
The above video gives some background to GAARs and the experience other jurisdictions have had, together with our insight on how this may affect businesses.