UNITED KINGDOM - Profit fragmentation – New diverted profits tax for individuals, partners and SMEs
May 2019
As part of its wider clampdown on all forms of offshore tax avoidance, the Government introduced rules in Finance Act 2019 to tax profits moved from a UK person to an offshore person.
What and when?
This is complex anti-avoidance legislation that requires affected parties to self-assess whether or not an additional tax charge (similar to a diverted profits tax charge) should be paid as a result of profits being moved out of the UK. The tax will apply when there is a tax ‘mismatch’, ie the overseas recipient pays tax at less than 80% of the rate that would have applied to the UK transferor. The Government estimates that few individuals and companies will have to pay this new tax but, sadly, many will need to consider whether or not it should apply to them.
The rules apply for any transaction from 1 April 2019 for corporates and from 6 April 2019 for individuals.
Who is likely to be affected?
The rules must be considered by all UK resident individuals, partnerships and companies.
It is not expected that private equity structures will be widely affected, as most large structures will have robust transfer pricing policies in place, and compliance with the disguised investment management fees rules will usually mean that the profit fragmentation rules do not apply. However, for non-standard structures or where transfer pricing policies are ‘historic’, businesses should review whether the new rules could trigger a reporting obligation.
Similarly, as large businesses must already consider both the transfer pricing and diverted profits rules, compliance with these should mean that there are no profit fragmentation issues either. However, qualifying SMEs (businesses with fewer than 250 employees and either a turnover of less than €50m or a balance sheet total of less than €43m) are exempt from UK transfer pricing rules, provided that the other party is in a qualifying treaty territory, and many will also be below the de minimis limits for the diverted profit rules. Such companies will now have to consider the profit fragmentation rules but in many cases the 80% test is likely to mean that no profit fragmentation charge applies.
UK SME companies with an overseas subsidiary or parent company in low or no tax jurisdictions will have to consider whether the profit fragmentation rules apply. As the 80% test would be failed by overseas companies paying tax at 15% or lower, UK companies with an overseas subsidiary or parent company in countries including Cyprus, Bulgaria, Ireland, Hungary, Liechtenstein or Qatar (amongst others) must actively consider the rules. It is also possible that groups whose overseas subsidiaries benefit from a special tax regime in the local jurisdiction will fall foul of these rules. For example, many countries have special regimes offering a low rate of tax for profits derived from intellectual property (eg in the Netherlands the rate is 7%). It is also possible that R&D tax reliefs could be problematic: many countries have special tax rules offering a super deduction for qualifying R&D expenditure, so it would be necessary to examine in detail whether any R&D relief could be treated as a “qualifying deduction”.
For individuals, the 80% test means that the list of countries to be considered is very wide when the recipient is a company (most countries do not have a corporation tax rate above 36%). So for example, an LLP trading in the UK that carries out transactions with an overseas company (for example, outsourcing back office services to a wholly owned subsidiary in a lower cost country) must actively consider these rules.
Similarly, there are many non-UK domiciled individuals that own an overseas company for numerous reasons (eg property development). Although the advent of the deemed UK domicile rules from April 2017 has reduced the attractiveness of overseas companies for long term UK residents, many ‘non-doms’ still retain their overseas companies. Such individuals will be used to the fact that payment from such companies into the UK can trigger tax difficulties, but they must now also consider whether outbound transactions and transfers may fall within the profit fragmentation rules.
How does it work?
The legislation is very broad and must be applied not only to “sales, contracts and other transactions” between a UK resident and an overseas person but also to virtually any action or transfer that leads to value passing out of the UK.
However, there are a number of conditions that the UK resident must consider to self-assess whether or not a tax charge must be applied. UK persons will need to ask themselves:
- Is there a transfer of value that results in profits derived from UK business activities effectively being transferred abroad?
- Was the transaction not at an ‘arm’s length price’ (ie not a normal market price that would apply between unconnected parties)?
- Is it “reasonable to suppose” that the value transferred relates to assets to which a relevant individual is entitled, or to activity undertaken by such an individual?
- Is it “reasonable to suppose” that the individual (or anyone ‘connected’ to them) has ‘power to enjoy’ the transferred profits at some point in the future?
Again, this condition is very widely drawn (ie will the person get some benefit at some point in future), although partners are not ‘connected’ simply because they are in a business partnership together. For example, a transfer or transaction between UK and offshore partnerships can only fall within these rules for those individuals that are members of both.
- Is there a tax mismatch?
Does the overseas person or entity receiving the transferred profits pay less than 80% of the tax that the UK person would have paid if the profits had not been transferred?
- Was the main purpose or one of the main purposes of the transfer to obtain a tax advantage?
For this motive test, it is necessary to consider whether any tax advantage was accidental or minimal compared to other commercial reasons for using such a cross-border structure. For example, do costs savings from outsourcing services to a subsidiary in a low cost country dwarf the tax saving?
Where the conditions are met, the UK resident must make a disclosure in his/her/its tax return and pay the additional tax on the relevant business profits.
While it may be tempting to assume that one or more of these conditions will not apply, failing to self-assess correctly carries significant tax penalties as well as all the unpleasantness of an HMRC tax enquiry. HMRC is increasingly scrutinising all taxpayers with overseas subsidiaries/parents, so it makes sense to have considered these issues and documented why it is believed that the profit fragmentation rules do not apply.
Next steps
As with most anti-avoidance tax legislation, the profit fragmentation rules add another layer of complexity to cross-border business planning. It is not quite a case of ‘transfer pricing for all’, but all sole traders, partnerships and companies that are connected to overseas businesses should:
- Take advice to help identify if they or their business structure could fall within the rules
- Consider the history of the structure – what was the original commercial rationale?
- Consider the pricing of transactions within the structure
- Consider whether a tax mismatch arises.
Tim Ferris
tim.ferris@bdo.co.uk