17 June 2011

Open for business - the start of a new era?

Christopher Groves
Partner | UK

A key announcement in the Budget was a proposal to remove any remittance charge for offshore income and gains used for commercial investment in the UK. At the time this was interesting but lacking in detail. The detail has been provided today and certainly indicates that this is a genuine move to make the UK more attractive to RNDs in tandem with genuinely removing barriers to investment in the UK, and so fostering much needed economic growth. The documents also promised no further changes to the remittance rules for the rest of the Parliament, which provides useful stability. This significantly softens the blow of the increase of the remittance basis charge (‘RBC’) from £30,000 to £50,000 for individuals who have been resident for 12 out of the past 14 years.

Alongside these, the government has started to make good on its promise to introduce simplicity to the tax system, with the announcement of a series of measures which will bring much needed clarity for individuals and advisers. The consultation closes on 9 September, and the proposed timescale is for the publication of draft legislation will be published before the Budget in 2012.

Commercial investment

Following on from months of speculation as to what ‘commercial investment’ would mean, this is a broader definition that many had anticipated. In outline, RNDs will be able to use offshore income and gains for investing in UK ‘qualifying businesses’, which are companies that are substantially trading, unless those companies are focussed on letting residential property. Importantly, it will be possible to invest in companies developing and letting commercial property, and financial services, provided the business is trading, as well as manufacturing, retail, technology and importing goods. This will include AIM listed and unlisted companies, but not main market listed companies.

One angle that is not clear is to what extent the business must be trading. The document refers to ‘substantial’ trading activities, and it remains to be seen whether this will impose an 80% requirement (like that for taper relief), a 50% or more requirement (as for Business Property Relief for inheritance tax) or something else.

Only companies and not partnerships can be invested in under the exemption, on the basis that there is a concern that partnerships can be used for avoidance, as for example in film finance schemes. This is not necessarily the most persuasive argument, and it should be possible to impose thresholds on minimum partnership size and activity so as to minimise avoidance risks. It will be a shame if partnerships remain excluded as a number of trading businesses are established in partnership form. In addition, a number of active investment management businesses, which a number of RNDs may well be interested in investing in, are commonly established as LLPs.

There are no minimum or maximum thresholds for investment, and no minimum time period for which the investment must be made. The investment can be made in shares and loan stock issued by the company.

Taxation of the gain – the rejuvenation of offshore trusts?

The investment can be made either directly or through offshore vehicles including trusts. If a gain is realised on the investment, this will be taxed in the normal way, but the remittance of the monies for the original investment will not be taxable unless the proceeds are retained within the UK for more than two weeks.

It will therefore be possible to realise gains through properly run and structured offshore trusts and for there to be no UK tax charge on a gain realised, as it is possible to realise tax free UK gains within an offshore trust, and there are no indications that this is to be amended. This opportunity is likely to see a resurgence in the popularity of offshore trusts for RNDs.

Personal businesses

Under the proposals offshore income and gains can be used by RNDs to invest in companies which are owned by them, in which they are shareholders and with which they are connected or otherwise associated. This includes businesses in which they are employed, but they will need to receive commercial remuneration for their services if the extended definition of remittance is to apply.

This aspect of the enhanced remittance basis is much more generous that many had thought, and may well trigger much new business development in the UK, particularly when combined with the new Entrepreneurs visa.

UK resident companies

There is no requirement that the investment be in a UK resident company, it can be made in a company which has a UK permanent establishment.


There are two key anti-avoidance rules, the first being that when the investment is sold the proceeds must be taken out of the UK within two weeks or the original investment will be treated as a remittance, this is to prevent investment being used as a means of bringing money for personal expenditure tax free.

The second measure will address any non arm’s length loans or transactions between the company invested in and the RND making the investment.
Finally, there will be measure to prevent the sale of existing businesses to new companies in which offshore income and gains are then invested, as this would not represent genuine investment in the UK but would rather be a change of ownership.

Some remaining uncertainties

A key question for RNDs will be whether proposed investments will qualify for this treatment. At the moment there are no proposals that either the investor or the company could apply for clearance that the proposed investment comprised investment in a qualifying business. While in some cases the answer may be clear, in others it will not be, as was the case with business asset taper relief and remains the case with Business Property Relief. It would be helpful and add certainty if a clearance procedure were introduced, notwithstanding the concerns voiced in the document about burdens for businesses and operational costs.

This would be especially helpful when considering investments in a corporate group, as it is proposed that investments in a holding company will benefit from the relief provided it simply holds shares in other companies that are qualifying business. In group situations, frequently some companies are trading and some are not, and therefore it will be helpful for this to be amended to either permit an assessment to be made of the entire group’s status as a qualifying business, or to introduce a pre transaction clearance procedure. This measure would likely help with the stated objective of the proposal, namely to encourage inward investment.

Overall, though, this is a very sensible and welcome set of suggestions, which will do much to enhance the attractiveness of the UK as a location for new businesses and for RNDs.

Increased remittance basis charge

As announced at the Budget, the remittance basis charge will increase from £30,000 to £50,000 for RNDs who have been resident for 12 out of 14 years, with effect from next April. The charge will operate in the same way as the current £30,000 charge.

A host of welcome simplifications

Alongside the expansion of the remittance basis, four key simplifications have been introduced:

Nominated income

A number of clients may well feel they have spent more in advisers fees than the amount of income they have nominated as the ‘tax’ on which the £30,000 charge is levied. This is because there are a series of complex rules which mean that if you remit the income you have nominated you will be caught by the morass of the mixed fund rules. In practice, many RNDs have chosen to simply nominate a de minimus sum. In recognition of this, if £10 of the nominated amount is remitted this is tax free and the mixed fund rules will not be triggered. This should significantly reduce compliance costs and complexity.

Foreign currency bank accounts

At present, cash held offshore in non sterling accounts can give rise to foreign currency exchange gains and losses which may trigger a charge to capital gains tax if remitted. RNDs must track gains and losses to ensure they know the amount of CGT due or not when remitting amounts held in a non sterling currency.

This is to be abolished, so that all offshore currency will not subject to CGT. This will be very useful for RNDs who would rather maintain cash in their base currency which may not be sterling.

Assets sold in the UK, a boost for auction houses?

At present, an asset purchased with offshore income or gains can be brought to the UK tax free if it comes within certain exemptions, including works of art for public display and items brought temporarily or for repair. This is to be changed so that the exemption applies where the assets are brought to the UK and then sold in the UK, and this seems to be borne in part at least out a desire to help the UK art market, as the rules may well have deterred a number of people from bringing art to the UK for sale.

However, it appears that gains will be taxed in the normal way.

SP 1/09 – employees with duties in the UK and overseas

In order to assist non ordinarily RNDs who have a single contract of employment and carry out duties in the UK and overseas the present practice whereby they have to track the UK and offshore elements on a pay period per pay period basis, and have to apply the mixed fund rules to the account receiving their remuneration, which is highly complicated. This is to be amended so that the UK tax due can be calculated by apportioning annual pay on the basis of UK and non UK work days, and there will not be a need to apply the mixed fund rules. This again will greatly help reduce complexity.

Christopher Groves Partner | London

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