Anti-Abuse vs. Anti-Avoidance
In it’s battle against the increasing resistance of tax payers who face excessive tax burdens, H M Revenue & Customs are exploring the possibilities of introducing legislation which will effectively make them judge and jury over the morality of legitimate tax avoidance arrangements.  Indeed the proposal started it’s existence as an Anti-Avoidance rule, but has seamlessly morphed into Anti-Abuse which they no doubt feel will carry more moral support.

The Tax Burden on Owner Managed Businesses
The increase in the provision of tax strategies is a demon of the Government’s own creating.  Society as a whole agrees that a progressive tax system is fair in a modern society, and those that are more able to pay, do in fact pay more.  This is a concept that most people will agree with.  The problem is, however, this principle has been taken to an extreme.  Currently owner managed businesses face a totally unacceptable burden of tax.  They face tax liabilities wherever they turn.  They pay taxes whilst they are attempting to earn profits. At the end of each year they pay tax on the amount that they have earned.  More tax is payable when they try to extract the profits from their businesses, and then they again face the same battery of taxes on their personal expenditure as they did when they were earning the profits.  If what is left is invested, then tax is payable on the proceeds of sale of those investments, and should they manage to accumulate assets during their lifetime, then the Government is there waiting with their hand out for their share of the estate.

Tax Collection and Penalties
In addition to the ever-increasing burden of taxation, businesses face the equally increasing burden of doing the work of H M Revenue & Custom for them.  More and more of the tasks of collecting tax are being imposed upon businesses, and an incredible burden of penalties exists to punish those that do not do their duty in the way that they dictate.  We have one client who, as a result of personal tragedy in his life, failed to do returns that he needed to do, and, as a consequence was hit with over £19,000 in penalties.  This was a one-man band business that was not making huge profits but simply trying to earn a living.  Surely this cannot be seen as being right?

Redefining the World
HMRC wants the business world to be what they deem it to be so that they can increase the revenue that they can collect.  They are constantly trying to move the goal posts in an attempt to redefine self employed sub-contractors as employees.  The existence of sub-contract businesses is an economic reality that is required by our economy as a whole.  HMRC do not want to accept this reality and are constantly trying to outlaw such arrangements simply because their take is greater from employees on PAYE.

Fiscal Bullying?
Whilst HMRC fail to collect tax liabilities in terms of billions of pounds from multi-national corporations, with whom they eventually seek to cut  deals, with smaller owner managed businesses their position is much different.  They know that bullying tactics intimidate business owners and they use this fear factor to get their own way.  Businesses are struggling due to an economic crisis (for which the Government themselves have to take their share of blame) and, as a consequence, face difficulties in making ends meet and experience cash flow problems.  Faced with not enough funds to go round, in a fight for survival, businesses have to pay those that are essential to keep their businesses going.  Their employees and key suppliers are the ones that are essential to the survival of a business.  Liabilities to HMRC always need to be paid and most businesses endeavour to pay them.  However, when the chips are down, HMRC do nothing to contribute to the survival of a business, and, as a consequence must come at the bottom of the priority list.  Being fully aware of this, their debt collection arm put undue pressure on small business owners, who they can intimidate.  They threaten to put companies into liquidation if liabilities are not paid, and then act to close them down if they are not paid.

Inevitable Response
In view of the above situation, it is not surprising that an increase in tax avoidance strategies has emerged as a natural reaction of business owners trying to minimise their tax burden to something that they consider to be fairer.  The Institute of Chartered Accountants in England and Wales has issued guidance to all it’s members relating to this issue in an attempt to distance itself from what is conceived by the general public as unacceptable practices.  Whilst they are correctly concerned about the image of it’s members, it is nevertheless struggling in this regard as any self respecting pro-active accountant simply has to make it’s clients aware of the availability of such strategies.

A step too far?
We are already faced with the over powering presence imposed by HMRC.  They have the power to change the rules if there is anything that they disagree with.  However, giving them the power to define what is an acceptable use of those rules, and what is not, is a step too far.  They will simply be able to rule against all legitimate attempts by taxpayers to arrange their affairs to their best advantage.  They would become judge and jury on the morality of legitimate tax arrangements.  This is a power that over time they are certain to abuse.

They say it is wrong for the tax rules to be used in a way that was not intended by Parliament when they conceived them.  This did not stop them using legislation established in the 1940’s to combat issues of separate assessment of husband and wives, that was established decades later, when they pursued the Artic Systems Case. In that case the courts thankfully ruled that HMRC were in the wrong.  With a General Anti-Abuse Rule (GAAR) the question exists of whether they would need to take such issues to court in the future.

The majority of taxpayers who are not business owners may have little sympathy with business owners who they conceive as being legitimate targets for HMRC’s attempts to raise tax.  Why should the wealthy not pay the large part of the tax burden?  However, this may well be the thin edge of the wedge, and they would be the first to complain should anything affect their own liability.  Given the power, HMRC will use it, and the danger is that there will be little limit on their power if the GAAR comes into existence.

DEB position
No reputable accountant can easily recommend tax strategies where the ultimate success is uncertain.  Whether a strategy works or not will depend upon whether HMRC takes it into litigation, and subsequently, the decision of the court deliberating upon extremely complex tax issues.  Some will work, whilst weaker strategies will not.  However, we feel that the availability of such strategies is an economic fact of life that all businesses need to be aware of.  The Government have tried to use moral arguments in their defence against schemes, which they probably accept are perfectly legal.  It is up to each taxpayer to make their own decision relating to the morality of their position.  Our role at DEB Chartered Accountants is to discuss with our clients the risks and rewards of involvement in tax strategies, and, for those that wish to proceed further, to ensure that they consider only the strategies offered by reputable and successful providers.

Call to Action
If you are concerned about where such a rule will lead you need to raise this issue with your MP.  If a GAAR is introduced then no doubt the tax strategy industry will react accordingly.  If you wish to discuss tax strategies in a balance way, please contact us at DEB Chartered Accountants.  We have developed a unique program called Stratego to help clients position themselves in this regard and we should be more than delighted to help you consider this very complex issue.  Be wary of providers offering you returns that are simply too good to be true.  You never know – they may just be that.