JOURNAL 50

FAIRNESS IS IN THE EYE OF THE BEHOLDER

Treasury Ministers and senior HMRC staff frequently rage against tax avoidance (which is actually paying the tax the parliament has decreed in circumstances that parliament had not foreseen when it enacted the relevant legislation) on the basis that it is “unfair” to the vast majority of taxpayers. What is fairness as Ministers and HMRC understand it? I don’t know but here is a selection of cases that HMRC have argued before the tax appeals tribunals which might give an indication of what they consider to be fair.

Mr Marsh is a building industry sub-contractor. As such he has tax deducted from his income at 18% before he sees it. He submitted his income tax return on 14 June 2006 showing a tax refund due to him of £30,000 (his profits are only around £27,000 pa on which tax is about £4,600 so it will be seen that contractors who used him were required to deduct tax of seven and a half times his actual tax liability under the “fair” system of taxing sub-contractors). HMRC authorised the money to be repaid to him on 2 August 2006 but the cheque did not arrive until 10 August. Problem! He had a VAT bill due on 31 July of £7,155, which he had no money to pay because HMRC owed him more than the whole of his annual profit. Did he have a reasonable excuse for not paying his VAT on time? “Of course not,” was the HMRC “fair” view. Fortunately the VAT tribunal disagreed. They thought that any conclusion other than “of course he did” ridiculous. They pointed out that if the tax authorities had asked on 31 July “Where is our money?” the correct answer would have been “We have got it”.

HMRC have power under common law to offset money they owe against money due to them. They use it regularly in relation to insolvencies. They have recently issued a consultation document on debt, where they say that they propose to use it more widely – but, it appears, not if setting off would prevent them from seeking to penalise a taxpayer whose finances they have crippled by taking time to make a repayment.

Keen Jewellery Ltd purchased an expensive necklace from Japan. It expected to sell it to a jeweller in Jersey. His customer wanted to see it first so Keen sent someone over to Jersey with the necklace. The customer liked it and bought it on the spot. Keen VAT zero-rated the sale because it had been sold in Jersey outside the EU.

“Hang on”, said HMRC “You haven’t got the right documentation”. This is a form SAD (what an appropriate acronym) which requires the name of a consignee to be shown. “We couldn’t use it”, said Keen, “because we did not have a consignee when our employee flew to Jersey.” “You didn’t try”, said HMRC, “we would have accepted the form without the name of a consignee even though the form gives no indication of this”. The “fair” result? Keen had to pay the VAT because it did not guess correctly what to do in an unusual circumstance.

Mr Duncan runs a car servicing business but is not licensed to carry out MOT tests. If a customer wants an MOT Mr Duncan send the car to an authorised test centre, pays them £35 for the test, and charges his customer £44. He accounts for VAT on his £9 handling fee. Unfortunately he did not specifically state on his invoices that the £35 is a disbursement, although all his customer knew that it was as he did not have the ability to do the test. “Wrong”, said HMRC, “we want VAT on the whole £44”. “But”, retorted Mr Duncan, “MOT fees are exempt from VAT”. Fair? The VAT tribunal disagreed. They said that Mr Duncan cannot and does not provide an MOT test. All that he does is arrange for a test to be carried out for which he charges £9.

Mr Ahmed is a clothing retailer. He bought goods from a number of suppliers some of whom he paid in cash. One of these was Euro-tex. Euro-tex got lost – in the sense that it moved and did not notify HMRC of its new address. Accordingly HMRC deregistered it for VAT. Mr Ahmed was of course not aware of that. In all probably nor was Euro-tex. When Mr Ahmed claimed input tax relief for the VAT it had paid to Euro-tex HMRC refused a deduction on the grounds that he did not hold a valid VAT invoice. “What do you mean?”, said Mr Ahmed; “Here are the invoices, they all bear a VAT number and in any event my own purchases from Euro-tex are sufficiently large to require it to register for VAT.” “So what”, said HMRC “We secretly deregistered Euro-tex so it is not possible for it to issue valid tax invoices after we did so.” Sadly the VAT tribunal had to agree – although it did require HMRC to give relief for the VAT on those invoices issued before the date of deregistration. Fair? Mr Ahmed seems to me to have acted perfectly reasonably throughout. It seems to me unreasonable that HMRC should be able to deny relief to an honest purchaser by secretly deregistering his supplier.

Robert W Maas

JOURNAL 49

WHAT AMERICA THINKS TODAY?

I think I mentioned previously that I am a member of the Illinois CPA Society (ICPAS).

No, I am not a CPA, but they let Chartered Accountants in as International Members. There are a couple of articles in the July issue of the ICPAS magazine, Insight, that I want to share with people.

The first was about perks. Children’s Memorial Hospital in Chicago (named as one of the ten best places to work in Chicago) offers a concierge service to all of its staff. This apparently means that it has someone available to assist staff with personal errands such as taking their dry-cleaning to the drycleaners. They also have an on site car repair facility so that employees can have their car repaired from the hospital garage, assuming I imagine, that they are sufficiently roadworthy that the employee can drive in to work. They also offer free back-up family care. They will send someone for twenty days a year to the employee’s home to look after their children or elderly relatives.

What America does today, Britain does tomorrow?

I am fascinated to learn the sort of perks that American staff apparently expect. If Blackstone Franks LLP were to provide such perks for our staff (which we have no current intention of doing) the staff will get a tax bill on the cost of having the facility available to them, whether they use it or not. I am about to make my annual visit to Chicago for ICPAS’s Business Technology Solutions Show (my annual update on US tax) and whilst I am there I will try to discover the US position on such perks.

Insight tells me that the director of Organisational Development of Children’s Memorial Hospital believes (and they have put it in quotes so I am sure it is what it really believes). “These benefits augment a special culture with a compelling mission, I get to work with very dedicated, talented, friendly, compassionate people who together save and transform the lives of children and their families everyday. I am very fortunate to work here.”

I have to admit that I do not believe that many Blackstone Franks staff meet these criteria. Thank goodness they don’t! Children’s Hospital staff sound like extra-terrestrials rather than human beings!

The article also tells me that Grant Thornton in the US selects one major marathon each year and invites employees to train for and compete in it as part of the Grant Thornton team. I somehow doubt that many Blackstone Franks staff would regard it as a perk if I asked them to join the Blackstone Franks team for say the Manchester marathon. It also tells me that KPMG offers pet insurance as a perk. If any one who reads this works for KPMG UK I would be interested to know if this is a worldwide perk or limited to the US. Perhaps the most surprising perk is that McGladrey & Pullen will reimburse up to $3,000 in adoption related costs to an employee who wishes to adopt a child. Whilst I am in favour of adoption, that does strike me as a perk for which I would not have expected there to be a great demand. By definition perks ought to be something that are likely to attract the majority of staff. Does anyone know of a UK firm of accountants that is prepared to encourage adoption in this way?

The other article that caught my eye was comparing the X and Y generation with the baby boomers. I know that baby boomers were those born shortly after the war. I assume that generation X, Y and Z are those born in the 70s, 80s and 90s respectively. I am not sure whether they will be pleased or not to learn that generation Y and Z are much more likely to be family-centric – placing more value on family – than their baby boomer parents. The evidence of this is apparently that generation X dads spend 3.4 hours per day with their children whereas the baby boomers only spend 2.2 hours. I am not a dad, but taking 7 hours sleep, 8 hours working and 2 hours travel gives an availability of 7 hours, so spending less than half of that with one’s children does not strike me as particularly family-centric.

I also learn that Deloitte & Touche believe that what generation Z want is “substantial internally and externally focused education”. That does not sound particularly family-centric to me either.

I also learnt that the majority of Americans baulk at the personal sacrifices necessary to make it as a top level executive in the new global economy. Apparently as many as 40% or 50% have witnessed a parent or family member who has worked hard all their lives being downsized or laid off in their latter years. If the average person is able to spend only 3.4 hours with one’s children, I shudder to think how much time a top level executive is expected to work.

I am particularly fascinated to learn that generation X and Y are less oriented towards greed. “It is the work itself. It is the intellectual stimulation and being able to make a contribution that’s important to them.” I have to admit that I have not noticed that in England but look forward to that philosophy coming to this side of the Atlantic.

I was also interested to learn that 78% of 10^th, 11^th and 12^th graders - 15 to 18 year olds - had a paid or unpaid job whilst at school and 83% expect to earn a four year university degree. 84% want jobs that are “personally meaningful to them”, 78% want to work with people who treat them well and 69% want jobs where they “can be creative and use skills” I somehow doubt that many will live their dream.

I also noticed an article on International Financial Reporting standards. This tells me that whilst it may seem unnecessary for America to move from US GAAP to IFRS there are many benefits to doing so, such as reducing accounting costs for US businesses with offices overseas. It also says that while many US accountants are already use IFRS on overseas assignments “there are just as many if not more international accountants (that’s people like Blackstone Franks LLP) as US ones, and so “the playing field is being rapidly levelled. The only difference is, those offshore company accountants are cheaper to hire”. Apparently currently American accountants have two big advantages, their US citizenship and their knowledge of reporting under American regulations. This means that they have to take a limited role in international projects since they cannot sign off any work. The article predicts that the US will not adopt IFRS for a minimum of ten years, so American accountants have a wide window to prepare for the invasion of the English and other aliens into their protected work arena. The advice to Insight’s American readers is to spend a couple of years working in the EU or Canada or to go on courses to learn IFRS. However it gives a warning about courses, that what is cutting edge now might not be cutting edge in a few years. Great news for the British accounting profession if that is all the preparedness that CPAs are going to do in preparation for IIFRS superseding US GAAP.

It is fascinating to learn how the professionals in the world’s major economy are approaching the future!

Robert W Maas