OTS CGT review – the remit of OTS
The Office for Tax Simplification (“OTS”) was set up over 10-years ago. Its objective is to ‘offer recommendations and advice to the Chancellor about how to make the tax system simple’. As I’ve said before, this is a worthy objective as the UK tax code is, frankly, a national embarrassment.
Again, the OTS appears to be largely ‘backward facing’. In other words, its purpose seems to be to look a pre-existing legislation and has no substantive role in providing input to newly proposed legislation. As I have said before, this is like trying to clean up a polluted river when there is a factory upstream continuing to pump tonnes of fresh effluent in to it every year.
“Simplifying by design”
So says the strapline to the OTS CGT review.
I have huge sympathy with the OTS in being asked to simplify the UK tax system, tax by tax.
It is like asking Dr Frankenstein to make his monster a better member of society limb by limb.
One cannot realistically simplify the CGT regime without also having a go at IHT as the interaction between the two capital taxes is immense. This is something that the OTS grapples within this report.
Terms of reference of OTS CGT review
The terms of reference of this review (or scoping document) is set out in Annex A of the report. The OTS CGT review is charged with identifying ‘simplification opportunities’ – both administratively and technically – in respect of ‘individuals, partnerships and unincorporated or single entity owner-managed companies’ as well as areas where the current rules ‘distort behaviour or do not meet their policy intent’.
It should be noted that the review specifically excludes matters confined to corporate groups – including the Substantial Shareholding Exemption, Company Reorganisations or demergers.
It should also be noted that the review does not seem to touch on matters of residence and domicile and does not consider the taxation of private equity. The first of these is flagged in the report’s introduction. I pick up the second point later on in this note.
The OTS CGT review at a glance
The OTS CGT review takes in five main areas:
- CGT rates
- Boundary issues
- Annual Exempt Amount
- Capital Transfers
- Reliefs and losses
I will look at each area but have ‘freestyled’ with my titles as I found my stream of consciousness did not fit easily under the same headings.
Is CGT complex?
We are told early doors that:
“The current rates of Capital Gains Tax are lower than standard income tax rates. This disparity is one of the main sources of complexity”
But is CGT an inherently complex tax?
In my view no.
It is certainly no more complex than Inheritance Tax or Income Tax. Of course, the OTS has already done some work on the IHT system. I do not think that CGT is an ‘outlier’ in terms of complexity.
It is inarguable that the UK system as a whole is complex. This is due to the volume of legislation and the fluidity of changes. We see the tax system used as a series of carrots and sticks. The many taxes we have overlap like a badly machined jigsaw.
The UK tax code would benefit from a longer term, holistic approach. Such a review should coalesce around some general principles.
The cynic might be led to believe that it is not really simplicity that is at the heart of the Government’s request for the OTS CGT review. Our cynical friend might proffer that it is the generation of additional revenue from a tax that – on the numbers – doesn’t really pull its weight.
There is plenty in this report that seems to bear this out.
Lower CGT rates create an incentive to re-characterise income as capital
The OTS CGT review sets out a couple of quotes. The first is from James Callaghan who said, in 1965, on the introduction of CGT, that a system with an income tax that also allowed for tax-free capital gains was “a powerful incentive to the skilful manipulator”
A further quote, from Professor Freedman in 2005, states that “the sharper the difference in treatment between capital and income, the greater is the opportunity for arbitrage”
Of course, there is nothing wrong with these statements. Where one rate is significantly higher than the other then one might be tempted.
But we do not live in the times of Rossminster or, indeed, NT Advisers.
We live in the world of the revamped Transactions in UK land, revamped Transaction in Securities, Anti-Phoenixing provisions and Transfer of Income Streams rules. All of these postdate even the Freedman statement in 2005.
To top all of this off, we have a General Anti-Abuse Rule. Which is working well to strike through any carefully crafted schemes which might otherwise creep through the substantive rules.
One does not have a ‘choice’ as to how to treat an item of profit once it has arisen. I may be naïve, but if the OTS has any evidence that there are schemes out there purporting to turn income in to capital then it should share it. Not that they would ‘work’ in any event.
Of course, say, in property, one could decide to create a property investment business – by investing in property for capital appreciation and harvesting rents over many years. Here, the rent is taxed as income but the capital appreciation is subject to capital gains tax. Alternatively, where one buys a property, stick in a new kitchen and bathroom and give it a lick of paint before flipping the property, then this is subject to income tax. Further, the latter is a trade, and this might qualify for reliefs that would not be available to a ‘mere’ investment.
One can apply this to various different activities – it is generally not the underlying asset that is important for UK tax purposes. It is what is done to that asset that is important.
As such, there is an economic difference between income and capital.
Whether they should be taxed at different rates is a completely different matter. That is one for the Government to determine.
Does someone take in to account the tax position when deciding to be a property developer or an investor? My view is no. It is a combination of skills and opportunities that will dictate this.
In this regard, it is OTS’ suggestion that the Government more closely aligns the rates of income tax and CGT.
OTS’ justification is painfully thin. Seemingly, it is because “without the complexity of having to worry about unwittingly stumbling across the wrong side of a boundary” we will all be happier bunnies.
I am afraid that this looks very much like language straight out of a Government behavioural insights lab (definitely where you would fine the modern-day Dr Frankenstein. That or working at Facebook). It basically says ‘we are increasing the tax rates for your own good. You’ll pay more tax but you’ll thank us later.’
Too many different rates of tax
The OTS CGT review also stresses that the four CGT rates is an additional area of complexity.
It is interesting that, back in 2008, Alistair Darling introduced a flat rate of CGT of 18%. In terms of simplicity, this was pretty damn close to the holy grail.
However, there was plenty of gnashing of teeth from the business community. ‘One cannot charge a business owner on the sale of his life’s work the same rate of tax as someone who has hung a Monet painting on the wall. It’s not fair!’ might summarise the general outpouring.
Here in lies the problem. Simplicity is one thing. ‘Fairness’ (the subjective kind) is another.
Although there is perhaps no scientific reason why an art aficionado should be taxed more highly than an entrepreneur, this seems pretty ingrained in to the British fiscal psyche. (Of course, a similar long established, but equally ingrained, position exists for the family home – where a limitless relief applies for a property used as one’s main residence. More on this later.)
But even allowing for a 10% rate for, at that time, Entrepreneurs’ Relief. We only had two rates of 10% and 18%.
But then different rates were brought in for basic rate taxpayers and higher rate taxpayers.
…and then we had different rates for Residential Property and Carried Interest.
…and just for good measure, CGT is no due 30 days after the sale of a residential property (a fact that has probably passed most people by to this day!)
Again, it is the Government that actively chooses to introduce complexity due to its desire to use the tax system as a carrot and a stick. It can’t leave it alone. As I say, it leaves the OTS scrabbling around downstream, standing up to their waste in in sewage-filled water.
Further, we also have relatively arbitrary and different rates for income tax – alongside the personal allowance, dividend allowance and trading and property allowance – we have different rates for dividends, earned income, self-employment income and non-earned income (after taking in to account National Insurance Contributions.)
However, perhaps these are clearly generating enough tax for the Exchequer – and therefre complexity appears to be tolerable.
The lumpy nature of capital gains – as opposed to the frequent nature of income – is addressed.
Of course, this is perhaps tacit acceptance, again, that there is a real difference between capital gains and income.
The problem with ‘lumpy’ returns is that when added to the income of the relevant its creates a spike for that year, even though the gains might have arisen over several years.
This is acknowledged by the OTS CGT review.
However, they suggest a form of relief like ‘top-slicing relief’ (“TSR”) which applies for insurance bonds. Of course, as anyone who has experience of TSR will testify, there is simply no wark of life where introducing this can possibly be a simplification! Indeed, it has been found that HMRC and commercial tax software had been calculating this incorrectly for years!
If CGT rates go up, the concern is people will be reluctant to sell assets. As wealthy people might have significant control over when and whether to sell assets, this might not have a positive effect on tax receipts. A suggestion to prevent ‘lock-in’ is to tax the gains as they accrue / arise.
Firstly, this is barmy. Why should an individual be taxed on a phantom profit?
Secondly, how on earth can this be seen a simplification?
Gains on inflation
The report talks about the issue that, at present, one is taxed on inflationary increases. This is following the scrapping of indexation allowance many, many years ago and also the removal of non-business asset taper relief (as the 2008 changes only performed a U-turn on ‘business assets’)
I would imagine that no one would disagree with the premise that one should not pay tax on an illusory gain.
It might be the case that the lower rate of tax and the annual exemption (“AE”) provides a very rustic way of dealing with this. Certainly, it stops people complaining.
It is acknowledged in the report that an increase in the tax rate and the cutting of the AE would require a new (or regurgitated) allowance to prevent inflationary gains being taxed.
As referenced above, this was once provided by indexation allowance. However, it was scrapped because it was “difficult to understand and complicated to administer”. However, OTS seems more bullish as with ‘modern technology’ and ‘integrated software’ we are told taxpayers could cope.
Again, it is difficult here to see how the OTS’ suggestions are anchored around simplicity. They seem more designed on raising additional revenue. Even if the method of giving relief for inflation is at present somewhat crude and arbitrary, it is of course simple. Increasing the tax rate and then having to introduce another relief is not simplification. It does however grease the route to greater taxation.
Family investment companies
Family investment companies have increased in popularity since Gordon Brown, king of the stealth tax dressed up as simplification, condemned all trusts to the relevant property regime. This mean virtually all new trusts suffered an IHT entry charge on creation.
“Such family investment companies can offer a range of tax advantages”
I assume that the use of ‘tax advantage’ is intended in a natural sense rather than the technical sense, a gateway through which one usually has to pass through for anti-avoidance rules to bite. I say this because the tax consequences of holding assets or performing activity through a company, in itself, is not tax avoidance. Even if in a family context.
We are somewhat emotively told that they are used for ‘funnelling’ value in to shares held by children. Of course, value can be ‘funnelled’ into the hands of children using partnerships, LLPs or, indeed, through the classic trust.
The OTS CGT review acknowledges, currently, there is no real CGT benefit in using a FIC.
However, it states that if the rate of CGT is aligned with income tax then the FIC will provide an incentive to use a FIC to gain a tax advantage. I guess they are pre-empting that there will be no change to corporation tax rates as well.
As such, OTS CGT review flags that changes would be required to the taxation of FICs. This illustrates that tax changes in one part of the ecosystem will create a change in behaviour elsewhere.
Tax’s very own version of the butterfly effect.
It has to be said that, to my tiny brain, this is one of the more confused parts of the report and, in my view unnecessarily, delves into the murky world of IR35.
The report quotes the Resolution Foundation (a ‘left-leaning’ think tank) as evidence that:
“capital gains are closely related to people’s own labour are of interest… because they challenge traditional conceptions of capital gains as being arms-length investments”
OTS sets out the view that where value is retained in the business instead of being paid out to shareholder directors then any associated value of the shares is not really capital – it is income.
Of course, such an argument is arguably – and perhaps demonstrably – true for the classic Personal Service Company (“PSC”). Classic use of a PSC would be where a consultant operates through a Company, providing services to one end client. They might have rolled up surplus cash, over and above their day to day living expenses, with a view to a later liquidation.
Here, the value extracted would be capital and potentially claiming ER, rather than it being treated as a distribution of income. The consultant would simply start up again with another company. This process is often referred to as ‘phoenix-ing’.
There are two points to make to this:
- There are rules, the IR35 rules, which should make these disguised employment structures ineffective on an ongoing basis (rather than just addressing the end point). We have had these rules since the start of the millennium but they aren’t particularly effective and HMRC has continued to grapple with them through the Courts.
- The phoenixing situation described above is no longer possible due to ‘anti-phoenixing rules introduced a few years ago – a capital distribution would be reclassified as income.
Evidence provided in Chart 3 pre-dates the introduction of the anti-phoenixing rules.
The case studies provided, again, appear to be PSC’s who go down the phoenix-ing route. This is somewhat disingenuous as this route would not work anymore unless the individual was retiring or returning to employment.
OTS provides a recommendation that there should be a mechanism which transforms what it sees as ‘labour-related’ income into a form that is subject to income tax.
However, as I have stated, it should no longer be possible for a PSC to achieve what is set out.
Further, OTS does not draw the line at PSC’s.
It believes other companies, where those who run a company are broadly the same as those who own the Company, should be subject to tax on ‘retained earnings’
But is it true to say that the ‘retained earnings’ of a more substantive trading business – where there are a number of non-shareholder employees – are reflective of labour provided?
Assuming that the individual employees are paid a market value salary for their labour then it is my view that it is not. The value created in the business, on sale, is likely to be in respect of the services or products it offers, its reputation, any intellectual property, or its list of clients / customers. Of course, employees are involved in this, but so are a whole host of other factors.
Such value, in my opinion, is no more ‘labour-related’ income than the proceeds on the sale of a new house is the ‘labour income’ of all the tradesman who worked on it.
It seems a difficult proposition to me that surplus profits retained in a proper commercial business is somehow ‘disguising’ income. It is likely, particularly in the current climate, that cash is retained for genuine commercial purposes.
What happens if the cash is used to buy assets? For example, the premises from which the business operated. This, of course, may be used for the business. But it may well be the investment proposition driving the purchase – as the business could perfectly well operate from leased premises. Is this retained earnings too?
Of course, where substantial cash or other investments are held on the balance sheet, this might fetter the availability to claim tax reliefs in any event.
Further, in my experience, retained cash (or any investment on the balance sheet) would rarely form part of a sale. Instead, the individual is generally required to take a pre-sale dividend, or the assets would otherwise be transferred from the target by extraction or, say, demerger.
Finally, if this does apply to more substantial companies, then where does one draw the line? It quite rightly states one cannot use the small company definition to draw the line in the sand as such a definition includes what most people would consider to be what are actually large businesses.
In answer to this, the OTS again proposing complex workarounds – citing the US retained earnings cap, and the UKs old Close Company Apportionment Rules, for instance – to help equalise the tax rates.
Again, it seems that such complexity is permitted where it helps ease in provisions to raise more tax.
OTS notes that listed clients will be right side of any line and therefore would not be subject to any changes.
Share based earnings
The OTS CGT review also recommends that the Government considers reviewing the tax position for employee share schemes.
I think it is worth setting out the basic position for share based employee award is – like most value provided to an employee – subject to income tax.
It is only where there is an exemption (such as using an ‘approved’ scheme), or negligible value being transferred, that such a tax charge will not arise. The aim is usually to put in place a share scheme where there is no initial income tax charge, with any future growth being within he CGT regime.
The OTS CGT review runs its critical eye over:
- Tax approved share schemes such as EMI; and
- Growth share schemes – which broadly give an interest in a share with no value upfront but, as the Company becomes more profitable, for example,
OTS quotes the following from a Resolution Foundation report from earlier this year:
“these schemes clearly emphasise the porous boundary between labour-related earnings and capital gains, as well as a strong incentive to forgo salary in favour of more lightly taxed forms of remuneration…”
Oddly, the OTS does not, itself, seem to challenge or stress test this assertion.
It certainly is at least arguable.
Take the situation where a key member of staff has joined a start up from a large established firm. The firm cannot compete on paying the same wages as the ‘big boys’. So, instead, it is able to award shares or an option over shares (perhaps under an EMI) which may be exercised, say, only on sale of the Company.
Although this may incentivise the employee to work hard, the return he receives, in my view, is not directly in return for his or her services.
The return is based on the value of the Company which is likely to be made up of goodwill, assets, products etc. It is not, to any measurable degree, based on the graft of the individual. Quite simply, he could have worked 80 hours a week for five years, but if the Company decreases in value – because it has lost its cutting edge, has been hit by scandal, or COVID has meant it has not been able to open for several months, then he or she will get nothing.
Even where an individual has foregone salary for a future slice of the pie in the hope of greater rewards they also take on the risk they will get nothing. Call it ‘sweat’ equity. Had they simply been paid a wage, they would likely be unaffected.
One thing is clear at this stage in 2020 is that every business owner knows is that there is an existential threat lurking around the corner.
OTS does not include any examples where the share / option award has plunged ‘under water’ as one might expect in a balanced approach.
I am sure there are examples where perhaps growth shares are thrown around like confetti and do not really engage any change of behaviour in the employee. However, share incentives are, in my experience, offered by entrepreneurs because they understand the benefits of getting staff members to think like business owners.
Annual Exempt Amount (“AE”)
The report recommends considering reducing the AE significantly – from its present value of £12,300 to a ‘de-minimis’ amount of £2-4k.
This is because it believes the AE causes distortion – with most capital gains being around the AE threshold as individuals with investment portfolios crystallise just enough gains to generate funds without triggering a tax charge.
From my own experience, it is usually pensioners (albeit relatively wealthy ones) that use this as a means topping up their retirement income (particularly in recent times where interest on capital has been minimal). Indeed, a clear majority of CGT is paid by those 55 or over.
It should be said, I am fairly indifferent to the level of the AE.
I can see the sense in having an allowance which is set at such a rate that individuals are not brought into self-assessment to raise a few hundred pounds in tax. There must be a balance between tax receipts and the cost of harvesting them.
Further, it should be said that there needs to be some allowance for inflation. The argument is that with a reduced rate of tax and a chunky AE, one is unconcerned with inflationary gains. However, where there is an alignment of rates, an allowance for inflation becomes essential. Is, or should this be, the AE’s purpose?
One suggestion by respondents in the report is that the AE should flex depending on the income and gains of the individual. In other words, like the Personal Allowance for higher earners. OTS seem to rule this out as ‘an additional complex calculation for taxpayers in the tapering zone’. However, having previously suggested an ‘averaging relief’ and a reintroduction of IA (killed off cos it was too complex) as it could be dealt with by software, it seems to pick and choose which ‘complexities’ it is prepared to deal with.
A lot of the commentary here is around the ‘uplift’ in base cost on death.
One comment I occasionally make is that it is one of the slimmest silver linings that, on death, one’s CGT issues are expunged! This is due to the uplift in base cost for those inheriting an asset from the estate. Further, there is no tax charge on the deceased’s estate.
I have always assumed that this was because the assumption is that the asset might be subject to IHT and therefore potentially subject to double taxation. As IHT is due on the full value of the asset, rather than the gain element, and the rate is higher, then the uplift of the base cost on death seems an unremarkable concession.
However, this rationale falls down where no IHT is paid on death. For example, this might be where the asset qualified for Business Property Relief (BPR), Agricultural Property Relief (“APR”) or similar.
The solution proposed by OTS is to scrap the uplift, with the beneficiary acquiring the asset at the deceased’s base cost (so-called No gain, no loss approach). OTS proposes this:
- In the first instance, for assets which qualify for an IHT relief on death; and
- Additionally, across the board even where IHT is paid.
I have no real objection to the first of these propositions for the reasons set out above.
However, the second seems a bit wonky. It seems odd that any gain on an asset will become subject to CGT (albeit ‘heldover’ to the beneficiary) AND the full value is potentially subject to IHT.
OTS then points out the difficulties of their NG/NL approach around valuations. Of course, the deceased may not have had terribly good records and, therefore, the beneficiary is not really in a position to quantify what a gain might be in the future.
Here, amazingly, the OTS decides to chuck in a rebasing provision so that the value at the year 2000 could be used. Again, such arbitrariness seems to bring little to the crusade for simplification.
Scrapping IHT and charging CGT on death?
My own view is that the system could be greatly simplified by having a single capital tax that applies to gains on either a gift, disposal or on death. It would be the Government’s policy to determine whether ‘holdover’ and other reliefs could be provided where no cash has been received (such as on a gift).
However, where one provides for such reliefs on gifts, one might need to have some form of provision requiring the donor to survive the gift by a period of time, unless the donee has already sold the asset by the time of donor’s death. For example, there is a clawback for holdover relief purposes already where transferee becomes Non-Resident before he or she has sold the asset. Without this, death bed gifts and holdover reliefs may become de rigeur.
It appears that OTS has considered a CGT charge on death instead of IHT. In their report they say that, by charging CGT on death rather than IHT (for the year 2015/16) there would be a reduction in the tax of £3.8bn. Their own references show, unless I am misreading things, that this is actually £3bn.
Further, if one was to scrap main residence relief, then this would shrink to a deficit of £1.5bn. Of course, with a scrapping of the Annual Exemption, an increase in the main rate of CGT, and changes to behaviour then this gap would perhaps close further.
It is a shame the OTS CGT review rules this out because of the reduction in tax that it states would result. However, it would be a significant simplification and is therefore worth exploring in depth.
Business Asset relief
As mentioned above, it is almost ingrained into our psyche that those selling the family business should pay less tax than someone cashing in some cryptocurrency or a painting. I am not saying this is necessarily the right approach – it just appears to be the received wisdom.
Clearly this has formed successive Government policies from Retirement Relief (“RR”), which was targeted at those retiring from business to taper relief and Entrepreneurs’ Relief (“ER”) (including the newer Business Asset Disposal Relief (“BADR”)).
It was acknowledged on the change to taper relief that RR was too narrowly focused (ie on retirement) with taper relief intended to, in Gordon Brown’s “reward risk taking and promote enterprise”. Further, Alistair Darling described ER as something that would “benefit the owners of small businesses when they choose to sell their businesses”.
There have been a number of surveys which appear to show that the availability of ER – or similar – does not influence an entrepreneur’s decision to establish a business in the first place. As such, it does not seem to fulfil one of the stated aims.
However, this is only part of the picture set out above. Whether it is in the thoughts of the entrepreneur initially or not, the reduced tax rate still fulfils the policy aim of providing a ‘reward’ or ‘benefit’ on sale to those who are brave enough to set up the business. This seems to be at least one of the two main aims and I think that it currently delivers this part.
I think the scope of ER has been widened too much. For instance, it is available to those who have received shares under an EMI scheme for instance. I am note sure this is the correct focus.
OTS CGT review seems to suggest that a relief should be targeted at retirement, which seems a regressive step. It seems to me that there are plenty of things that could be tweaked to make the relief effective and cheaper. This could be around extending the holding period to increasing the minimum shareholding required to qualify.
Of course, we also need to factor in that BADR is also a shadow of its former ER self. As such, the cost of relief must have been shredded already.
It should also be noted that the review does not touch on matters of residence and domicile. This means no consideration of extending the tax base by saying all UK based assets, regardless of whether held by a non-resident person, should be brought within scope. This would extend the recent encroachment we have seen through Non-Resident CGT.
What about Private Equity?
Its omission is truly baffling. It is not scoped out by the terms of reference and the treatment of carried interest as capital, allowing the individuals in the industry to amass huge fortunes with little personal capital on the line, would seem firmly in their cross-hair. When one applies the same rationale espoused regarding ‘retained earnings’ and ‘share based earnings’ then I cannot see how private equity could escape the charge that its returns were not ‘labour-related’.
Perhaps it is an oversight? Perhaps it’s because the Big 4 advise these types of client? Perhaps it is that private equity has a powerful lobby? In this regard, I note that the British Venture Capital Association did contribute to this review – despite there being no reference to private equity in the report itself.
One other omission is main residence, or principal private residence relief (“PPR”).
Indeed, it is interesting that I see no specific consideration in this report as to whether PPR should be scrapped (it is dealt with in respect of nil gain nil loss). Of course, this could be politically charged. Has the OTS been told to keep off the grass on this one as it is a difficult political issue?
However, scrapping both the residence nil rate band and at least reforming PPR would create a level of simplicity. A reform to PPR, which is unnecessarily complex, for example could involve simply providing a cap to the relief – where the lower of (1) the total gain; (2) say, £200,000; and (3) periods of actual occupation qualified for the relief. Clearly, this would raise the most revenue from wealthier individuals. It would, of course, have an influence on the housing market.
OTS CGT review – Conclusion
I think the report raises more questions than it addresses.
Further, in respect of concerns around performing the alchemy of turning income in to capital, proposing solutions for problems that seemingly no longer exist.
I have no philosophical issue with CGT rates being more closely aligned with income tax rates. But we should not pretend that this is part of a simplification exercise. It is a revenue generating exercise. Sadly, this review, to me, is a method for the government to increase taxes under the guise of simplification. However, in reality, that simplification does not exist.
My view is the UK urgently needs a joined-up approach to simplification. As OTS points out, there is significant interaction between taxes and dealing with one at a time is almost impossible. Like the Law Rewrite project of a few years ago, several years should be set aside to complete this exercise. On the assumption that any tax changes are a few years off to allow recovery from COVID and / or Brexit then such a time frame does not appear to be objectionable.
Until then, Frankenstein’s monster will continue to prowl the fiscal landscape.
If you have any queries about this article on OTS CGT review, or the OTS CGT review in general, then please do not hesitate to get in touch.