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A GAAR Is Born

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cape jeremy

Attitudes towards the exploitation of tax loopholes have ebbed and flowed over the years. Right-thinking people know, and have always known, that tax evasion is plain wrong. Most right-thinking people are, and have always been, comfortable with the idea that taking advantage of a tax break explicitly offered by the Government, such as tax relief on pension contributions, is acceptable. But the view of taxpayers who reduce their tax bills by relying on overly technical, and often artificial, arrangements, has not been consistent over the decades.

The atmosphere in the United Kingdom – not just among the Government, HMRC and the general public, but increasingly among tax professionals and the courts – is that this sort of behaviour has had its day and we would all be better off without it.cape jeremy

In this light, an Advisory Committee, led by the formidable tax QC Graham Aaronson, was tasked by the Government with considering whether the UK tax system would benefit from a general anti-avoidance rule (GAAR). Aaronson’s report on the views of the Advising Committee (the Report) was published on 21 November 2011.  A GAAR means different things to different people in different jurisdictions.  The Report takes the approach that it is an overriding statutory principle that can be used to strike down egregious tax schemes even if they work within the technical wording of the relevant taxing statute.

The Report concludes that the current system of dealing with tax avoidance is not adequate. First, the courts have at times pushed statutory interpretation to its limits to defeat tax avoidance schemes that they felt shouldn’t succeed.  This has created uncertainty as to how judges apply tax law. Secondly, there are now estimated to be over 300 targeted anti-avoidance rules on the UK statute book. Thirdly, the disclosure of tax avoidance schemes places an added burden on taxpayers, and often then results in further targeted anti-avoidance legislation. These measures have often been ineffective in successfully defeating certain highly aggressive and artificial tax avoidance schemes.

The Report concludes that introducing a moderate GAAR, which does not apply to normal tax planning, but is targeted at “abusive arrangements”, would bring “substantial and valuable” benefits to the UK tax system, including:

  • deterring and providing a way of counteracting contrived and artificial tax avoidance schemes;
  • creating a more level playing field for businesses and tax professionals by preventing those who use or advise on aggressive schemes from gaining a competitive advantage;
  • reducing the risk of the courts having to stretch their interpretation of tax legislation to defeat schemes, and the uncertainty this creates;
  • creating an opportunity to simplify the UK tax legislation, as many specific anti-avoidance rules will no longer be needed and, if fewer schemes go ahead, less specific anti-avoidance legislation will be needed in the future;
  • creating greater certainty for those carrying out normal, responsible tax planning that the anti-avoidance rules will not apply to them, thus reducing the need for a comprehensive system of clearances; and
  • clarifying the boundary between what HMRC considers acceptable, and what is not, which will build trust between HMRC and taxpayers.

It would work by identifying arrangements which are abnormal arrangements included for the purposes of achieving an “abusive tax result” and cannot be regarded as a reasonable exercise of choices afforded by the relevant legislation. An “abusive tax result” is an advantageous tax result which would be achieved by an arrangement that is neither reasonable tax planning nor an arrangement without tax intent. The Report states that the thresholds of “abnormal arrangements” and “abusive tax results” are intended to be set high, so as not to catch “responsible” tax planning.
It would be for HMRC to prove that it is more likely than not that:

  • the arrangement is an abnormal arrangement; and
  • the advantageous tax result of the arrangement would be an abusive tax result (so it is not reasonable tax planning).

Where HMRC succeeds in proving such arrangements exist, it would be able to counteract them under the GAAR.  Depending on the circumstances, the counteraction may be done by:

  • adjusting computations or assessments as is reasonable and just; or
  • adjusting them by reference to a hypothetical arrangement which would achieve the same non-tax result as the actual arrangement, without the abusive tax result which the actual arrangement sought to achieve.

The interaction between the GAAR and the system of tax administration and tax appeals is not presently clear, and will need to be clarified.
To ensure that “responsible tax planning” would not be caught by the GAAR, the Report proposes a series of safeguards.  These would consist of clear protections:

  •   for “reasonable tax planning” and for arrangements which are entered into without any intent to reduce tax;
  • requiring HMRC to prove that an arrangement was not reasonable tax planning (rather than placing the burden of proof on the taxpayer to show that it was); and
  • putting in place a new Advisory Panel, with a majority of non-HMRC members to advise HMRC on whether it was justified in seeking to apply the GAAR.

dayananda helenThe Report suggests that the Advisory Panel should publish its decisions to build up a body of thinking on the correct application of the GAAR which could be used by taxpayers and their advisers. Given that there is no proposal to allow taxpayers to seek advance clearance from HMRC (which is likely to be one of the more controversial elements of the Report) about the application of the GAAR to particular transactions, the role of the Advisory Panel, and its published decisions, will be important. However, in the early days of the GAAR, there may be a lack of certainty.
The Report expresses the hope of many industry and tax specialists that an effective GAAR could create an opportunity to simplify the existing tax legislation. It’s not clear that this is likely to be the case; most complex regimes, such as controlled foreign company rules, will have to remain. As the GAAR is only to be used in exceptional circumstances, it is unlikely that we have seen the final limits of specific anti-avoidance rules and taxpayer disclosure.

The next step is that the Government will consider the Report and respond in the 2012 Budget. It will consult informally with business and tax practitioners, and there may be a further formal consultation.
Ultimately, the proposed GAAR, with its narrow scope and focus on “highly abusive contrived and artificial schemes which are widely regarded as intolerable” is perhaps not technically a GAAR, and may thus not suffer the problems suffered by GAARs in other jurisdictions. In practice, the GAAR may finally dissuade taxpayers from structuring artificial and purely tax-driven arrangements, if they haven’t already been dissuaded by the recent general lack of success of such arrangements in the courts.
The concern is that, notwithstanding the existence of safeguards, evidence suggests that, given additional statutory powers, government departments find the temptation to use them excessively too great. It is to be hoped that HMRC proves to be a rare and admirable exception to this rule.

Jeremy Cape is a partner and Helen Dayananda is an associate at  SNR Denton UK LLP.

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Teed off: As COVID fuels S. Africa’s housing crisis, golf courses feel the heat

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Teed off: As COVID fuels S. Africa's housing crisis, golf courses feel the heat 1

By Kim Harrisberg

JOHANNESBURG (Thomson Reuters Foundation) – It sounds like a developer’s dream: A greenfield site in the heart of Cape Town, close to the best schools, hospitals and transport links and big enough to build more than 1,400 affordable new homes. The only hitch – it’s a golf course.

The 46-hectare (114-acre) Rondebosch Golf Club is one of hundreds of golf courses in South Africa facing scrutiny by land rights campaigners as a surge in evictions during the COVID-19 pandemic exposes an acute shortage of low-cost housing.

Rondebosch had its lease renewed by the city government late last year despite the presentation of some 1,830 objections by local housing rights group Ndifuna Ukwazi, which says turning golf courses over for homes is a way to tackle deep inequality.

“Using this land for the benefit of a few wealthy individuals at the expense of those in dire need of affordable housing is inefficient, unequal and unjust,” said Michael Clark, head of research and advocacy at Ndifuna Ukwazi.

Warnings by city officials that eviction is on the cards for occupiers of abandoned buildings, just months after Rondebosch’s lease was extended, have roused activists and sparked calls for cities to prioritise land use according to need.

“Golf courses occupy expansive tracts of land in well-located areas across cities,” said Edward Molopi, a researcher with the Socio-Economic Rights Institute of South Africa (SERI), which uses litigation and advocacy to support human rights.

“South African cities face an acute need for affordable housing and this land can be used to address the problem,” Molopi told the Thomson Reuters Foundation, adding that he knows of hundreds of housing evictions since lockdown began.

Nearly three decades after the end of white minority rule, South Africa remains one of the most unequal countries in the world, according to the World Bank, with urban areas still starkly divided along racial and class lines.

In other countries too, from South Korea to the United States, the swathes of green space needed for a round of golf have stirred debate around alternative uses for the land, whether apartment blocks, public parks or even vineyards.

‘NOT THE ONLY LAND’

But in South Africa, where tracts of land, including golf courses, were used as physical barriers to separate different racial groups during the apartheid regime, campaigners say repurposing such areas is key to achieving a fairer society.

Golf lovers have a choice of about 450 courses in South Africa, according to independent golf course ranking platform Top 100 Golf Courses.

They are easy to spot on a Google Maps view of the nation’s cities, many in close proximity to other golf courses, and also poorer neighbourhoods or townships.

But officials say finding space for affordable homes is more complex than repurposing golf courses.

Not all of the courses are publicly owned or suitable for residential use, said officials from the cities of Cape Town, Johannesburg and Durban. The sport also draws tourists and creates jobs, they added.

“Densification, diversification and inclusionary housing requirements in well-located parts of our cities is a more realistic approach,” said Nthatisi Modingoane, a spokesman for the city of Johannesburg.

‘SPATIAL JUSTICE’

Johannesburg’s Observatory golf course lies less than five kilometres (three miles) from Hillbrow, an inner-city suburb notorious for derelict, overcrowded buildings and crime.

People unable to afford rent end up there in “dark buildings” – properties seized by rogue landlords that offer crowded but cheap rooms, often without electricity.

“Since COVID, people need cheap rent, but if you don’t pay the landlords you get kicked out or … they kill you,” said Ethel Musonza, a housing activist who used to live in a dark building.

“There is a big need for people to be resettled in a safe place they can afford,” she added.

But the Observatory course sits on the site of an old ash dump, making it a poor site for residential construction, said club captain Simon Leventhorp.

“There is need for affordable houses but golf courses aren’t the only land available,” he said, adding that the club had a lower membership fee that other courses, making it a more inclusive space.

Some courses – like Rondebosch in Cape Town – do fit the bill for affordable housing, said Clark.

Golfers at the course can still enjoy views of the city’s famous Table Mountain from the greens, but authorities did add a two-year cancellation clause to the club’s lease if an alternative use of the land is identified.

Land used for community and recreational use, including golf courses, is currently being reviewed for possible residential sites, the city added.

In the meantime, land campaigners will continue to put pressure on state and city governments to “proactively intervene in housing markets”, said Molopi from SERI.

“This will be central to dismantling the ‘apartheid city’ and moving towards urban spatial justice,” Molopi said.

(Reporting by Kim Harrisberg @KimHarrisberg; Editing by Helen Popper. Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers the lives of people around the world who struggle to live freely or fairly. Visit http://news.trust.org)

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UK might need negative rates if recovery disappoints – BoE’s Vlieghe

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UK might need negative rates if recovery disappoints - BoE's Vlieghe 2

By David Milliken and William Schomberg

LONDON (Reuters) – The Bank of England might need to cut interest rates below zero later this year or in 2022 if a recovery in the economy disappoints, especially if there is persistent unemployment, policymaker Gertjan Vlieghe said on Friday.

Vlieghe said he thought the likeliest scenario was that the economy would recover strongly as forecast by the central bank earlier this month, meaning a further loosening of monetary policy would not be needed.

Data published on Friday suggested the economy had stabilised after a new COVID-19 lockdown hit retailers last month, while businesses and consumers are hopeful a fast vaccination campaign will spur a recovery.

Vlieghe said in a speech published by the BoE that there was a risk of lasting job market weakness hurting wages and prices.

“In such a scenario, I judge more monetary stimulus would be appropriate, and I would favour a negative Bank Rate as the tool to implement the stimulus,” he said.

“The time to implement it would be whenever the data, or the balance of risks around it, suggest that the recovery is falling short of fully eliminating economic slack, which might be later this year or into next year,” he added.

Vlieghe’s comments are similar to those of fellow policymaker Michael Saunders, who said on Thursday negative rates could be the BoE’s best tool in future.

Earlier this month the BoE gave British financial institutions six months to get ready for the possible introduction of negative interest rates, though it stressed that no decision had been taken on whether to implement them.

Investors saw the move as reducing the likelihood of the BoE following other central banks and adopting negative rates.

Some senior BoE policymakers, such as Deputy Governor Dave Ramsden, believe that adding to the central bank’s 875 billion pounds ($1.22 trillion) of government bond purchases remains the best way of boosting the economy if needed.

Vlieghe underscored the scale of the hit to Britain’s economy and said it was clear the country was not experiencing a V-shaped recovery, adding it was more like “something between a swoosh-shaped recovery and a W-shaped recovery.”

“I want to emphasise how far we still have to travel in this recovery,” he said, adding that it was “highly uncertain” how much of the pent-up savings amassed by households during the lockdowns would be spent.

By contrast, last week the BoE’s chief economist, Andy Haldane, likened the economy to a “coiled spring.”

Vlieghe also warned against raising interest rates if the economy appeared to be outperforming expectations.

“It is perfectly possible that we have a short period of pent up demand, after which demand eases back again,” he said.

Higher interest rates were unlikely to be appropriate until 2023 or 2024, he said.

($1 = 0.7146 pounds)

(Reporting by David Milliken; Editing by William Schomberg)

 

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UK economy shows signs of stabilisation after new lockdown hit

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UK economy shows signs of stabilisation after new lockdown hit 3

By William Schomberg and David Milliken

LONDON (Reuters) – Britain’s economy has stabilised after a new COVID-19 lockdown last month hit retailers, and business and consumers are hopeful the vaccination campaign will spur a recovery, data showed on Friday.

The IHS Markit/CIPS flash composite Purchasing Managers’ Index, a survey of businesses, suggested the economy was barely shrinking in the first half of February as companies adjusted to the latest restrictions.

A separate survey of households showed consumers at their most confident since the pandemic began.

Britain’s economy had its biggest slump in 300 years in 2020, when it contracted by 10%, and will shrink by 4% in the first three months of 2021, the Bank of England predicts.

The central bank expects a strong subsequent recovery because of the COVID-19 vaccination programme – though policymaker Gertjan Vlieghe said in a speech on Friday that the BoE could need to cut interest rates below zero later this year if unemployment stayed high.

Prime Minister Boris Johnson is due on Monday to announce the next steps in England’s lockdown but has said any easing of restrictions will be gradual.

Official data for January underscored the impact of the latest lockdown on retailers.

Retail sales volumes slumped by 8.2% from December, a much bigger fall than the 2.5% decrease forecast in a Reuters poll of economists, and the second largest on record.

“The only good thing about the current lockdown is that it’s no way near as bad for the economy as the first one,” Paul Dales, an economist at Capital Economics, said.

The smaller fall in retail sales than last April’s 18% plunge reflected growth in online shopping.

BORROWING SURGE SLOWED IN JANUARY

There was some better news for finance minister Rishi Sunak as he prepares to announce Britain’s next annual budget on March 3.

Though public sector borrowing of 8.8 billion pounds ($12.3 billion) was the first January deficit in a decade, it was much less than the 24.5 billion pounds forecast in a Reuters poll.

That took borrowing since the start of the financial year in April to 270.6 billion pounds, reflecting a surge in spending and tax cuts ordered by Sunak.

The figure does not count losses on government-backed loans which could add 30 billion pounds to the shortfall this year, but the deficit is likely to be smaller than official forecasts, the Institute for Fiscal Studies think tank said.

Sunak is expected to extend a costly wage subsidy programme, at least for the hardest-hit sectors, but he said the time for a reckoning would come.

“It’s right that once our economy begins to recover, we should look to return the public finances to a more sustainable footing and I’ll always be honest with the British people about how we will do this,” he said.

Some economists expect higher taxes sooner rather than later.

“Big tax rises eventually will have to be announced, with 2022 likely to be the worst year, so that they will be far from voters’ minds by the time of the next general election in May 2024,” Samuel Tombs, at Pantheon Macroeconomics, said.

Public debt rose to 2.115 trillion pounds, or 97.9% of gross domestic product – a percentage not seen since the early 1960s.

The PMI survey and a separate measure of manufacturing from the Confederation of British Industry, showing factory orders suffering the smallest hit in a year, gave Sunak some cause for optimism.

IHS Markit’s chief business economist, Chris Williamson, said the improvement in business expectations suggested the economy was “poised for recovery.”

However the PMI survey showed factory output in February grew at its slowest rate in nine months. Many firms reported extra costs and disruption to supply chains from new post-Brexit barriers to trade with the European Union since Jan. 1.

Vlieghe warned against over-interpreting any early signs of growth. “It is perfectly possible that we have a short period of pent up demand, after which demand eases back again,” he said.

“We are experiencing something between a swoosh-shaped recovery and a W-shaped recovery. We are clearly not experiencing a V-shaped recovery.”

($1 = 0.7160 pounds)

(Editing by Angus MacSwan and Timothy Heritage)

 

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