Mr. Timms: We have had a helpful discussion on the schedule and the amendments. The new exemption from corporation tax for dividends and other distributions received from foreign companies which is introduced by the schedule is a key element of the package to enhance the attractiveness of the UK as a location for multinational businesses. As the hon. Gentleman said, it takes effect from 1 July 2009.
I say in passing that we have thought very carefully about the implementation dates of the various parts of the package. Therefore, as we will discuss shortly, we are introducing the debt cap for an accounting period which will begin on or after 1 January 2010, so that businesses have time to prepare. That the measure is being introduced later than the dividend exemption has been widely welcomed.
The hon. Gentleman asked about transitional arrangements. Any profits accrued in a foreign subsidiary before the package comes into force can be paid out as an ADP dividend and remain subject to the current rules, which may be a helpful clarification.
Considering the tax treatment of branches would have raised more issues and diverted attention away from the main point, which is the taxation of foreign dividends. We will bear branches in mind when we look at future options for controlled foreign companies, but we will not consider the treatment of foreign branches in detail until after the consideration and reform of the CFC rules.
I have one further point to make about the interaction with the ADP exemption. Amendment 100 removes the restriction on double taxation relief. Amendment to the CFC changes in schedule 16, which we will come to, will allow the split period to also be treated as split for the purpose of double taxation relief. There was indeed a problem in the area highlighted by the hon. Gentleman when the Bill was initially drafted, but I think that that has been solved by the various changes that we will debate today.
Question put and agreed to.
Schedule 14, as amended, accordingly agreed to.
Tax treatment of financing costs and income
Question proposed, That the clause stand part of the Bill.
Mr. Hoban: This is an important clause. A number of issues have emerged since it was tabled, including the number of Government amendments to it. The extensive nature of the new rules on anti-avoidance and financial services groups is also important and needs to be addressed.
As the Minister indicated in the debate on clause 34 stand part, some of the cost of the dividend exemption has been offset by the introduction of the debt cap. That leads to interesting issues as to whether those reforms are linked, in the sense that if clause 34 is introduced, does clause 35 have to be introduced, or are the reforms taking place in parallel, with one raising revenue and one leading to a loss of revenue just a matter of convenience rather than a matter of planning how the tax structure will work? Clearly, when the debate about the taxation of foreign profits started in 2007, the Government had other ideas about how to tackle some of the behavioural challenges that arose from it. It was only when the original ideas on the control of companies ran into a degree of flak that they then moved on to the debt cap.
The aim of the worldwide debt cap is to target situations in which a UK group bears more debt than is required to finance the worldwide group. In addition, the measure could provide an effective means of targeting many upstream loans to the UK that are used to repatriate overseas cash. However, in order to protect those groups that are temporarily cash rich, the Government intend to allow the worldwide debt cap measure to be set aside where the group is in a short-term cash-rich position. Of course, that stems from the point that has been quite widely debated over several years that the UK has a very generous regime for interest expenseit is fully deductible. It is one of the issues that has perhaps led to an increase in leverage among a number of companies over the course of recent years and has certainly led to concern about whether it has incentivised a particular type of behaviour.
Although the Government flagged up last year that that is what they wanted to do, there is still concern about the workability of the proposals. Deloitte said:
Unfortunately the provisions remain very complex and represent a major compliance burden for groups even if they will have no ultimate disallowance of interest.
Adding 32 pages of tax codes could make the risk overly burdensome. The Institute of Chartered Accountants believes this matter could have been addressed in other ways:
We believe that the same policy objectives, which are to prevent the dumping of debt into the UK part of worldwide operations and the penalisation of upstream loans to the UK, could equally well be achieved by tightening up the existing thin capitalisation regime and introducing targeted rules against upstream loans.
Could other policy routes have been used to tackle unnecessary upstreaming that would not have added to the compliance burden on businesses? In the brief stand part debate, the Minister referred to the different commencement date for the debt cap arrangements. Will the gap between commencement dates be used for further consultation and to explore the alternative solutions, or are the Government determined to take this route?
Since the original proposals were published in draft last year, there has been movement by the Government and some of the complexity has been ironed out. However, UK-only groups will still be caught by the measure and will have to go through some compliance steps, which is regrettable. The proposals are meant to deal with debt that is incurred outside the UK by international groups, yet it appears from the drafting that UK companies will have to pay unnecessary additional taxes.
The debt cap places restrictions on the relief given to UK companies that form part of a worldwide group relating to the interest and finance expenses on transactions with related companies. The extent of that restriction on the intra-group interest and finance costs will depend on the external financing costs of the worldwide group. The Chartered Institute of Taxation questions why those restrictions are required, saying that
It is not clear to us why these provisions are required at all in addition to the many existing rules which are intended to restrict interest relief in certain situations, including transfer pricing, arbitrage provisions and
provisions of the Finance Act 1996. Both CIOT and ICAEW have concerns about the Governments approach.
The Minister suggested that the proposal was a move towards a more territorial system of taxation, and he is right: it is only a move towards that. It has not been fully articulated as the end point. Will he clarify whether we should move to a territorial system of taxation and whether the proposal is a staging post along that route or the end of such movement? If it is a staging post, what does he think the next moves should be?
There is a more fundamental concern about the impact of the measures on businesses. I have talked about compliance costs and about whether there are other ways to tackle the concern about loading UK-based companies with high levels of debt. There have been a number of comments from business and outside advisers about how the proposal will affect the way in which companies are structured and financed.
The Law Society has suggested that the proposals might encourage UK groups to incur more debt; encourage multinationals to transfer assets out of the UK; discourage inward investment into the UK; put over-leveraged companies at an advantage over cash-rich companies in making acquisitions in the UK; and discourage outward investment. I shall illustrate just one of those points, as it is quite important to reflect on the potential outcome. We could have a situation in which a UK-based company is being targeted by two potential acquirers. One could be an overseas company that is cash rich, but it would seek to finance its acquisition of the company through intra-group loans. Alternatively, there could be a highly-leveraged private equity situation, where there is quite a high level of external debt. Again, the company in that situation would use debt to finance the acquisition of the original UK-based company.
The concern that has been expressed to me is that, because the overseas parent company is cash rich, it has low levels of external debt or, as in this case, no external debt. The restriction on debt interestthe worldwide debt capwould kick in on that company. By contrast, if the UK company was acquired by a highly-leveraged private equity fund that had external debt, the fund would be able to use debt; it would not face the restriction on the deductibility of interest that the cash-rich non-UK
Given that one of the concerns expressed recently has been about over-leverage in the markets, we seem to have a situation here whereby the proposed measures could encourage more leverage, rather than encourage companies to have significant cash resources, whether those resources are acquired through the retention of profits or through arranging money via share issues. The behavioural issues are causing some concern to outside bodies, and this could be an opportunity for the Minister to explain the Treasurys view.
As I understand itI am sure the Minister will correct me if I am wrongwe are the only country that has introduced a worldwide debt cap. Other jurisdictions have considered introducing some cap on tax deductibility debt within their own jurisdiction, but not outside it. Deloitte suggests:
The introduction of the debt cap cannot be regarded as a move which will enhance and support UK competitiveness and this aspect of the policy design of the debt cap seems more likely to damage the UKs competitive position than to enhance it.
Is the Minister prepared to comment on that assessment?
The second issue that I want to touch on relates to the compliance cost. I alluded to the fact that purely UK groups would also have to go through the process of calculating what their external financing is, even though they do not have any non-UK business. As I understand it, the problem is the gateway test that has been used. When the measures were originally consulted on, it was suggested that there would be a number of gateway tests, one of which would enable a purely UK group to avoid going through that process of calculating external finance. Will the Minister explain why there is to be only one gateway test?
The Chartered Institute of Taxation suggests that the reason why there is only one gateway test is our old friend, EU law, which we discussed in relation to the last schedule. It was said that EU law aims to ensure that the arrangements are waterproof and free of the possibility of legal challenge, which would mean that we will end up putting an additional burden on UK-only groups that should not really apply, given the nature of the debt cap rules. I should be grateful if the Minister explained why we have only one gateway test.
Three themes run through the general commentary on the measure. First, is it the best way to tackle the issue of the upstreaming of loans into the UK? Secondly, is the compliance cost too great? That partly links back to the fact that there is only one gateway test, which means that UK-only groups are caught by the measure. Thirdlythe problem that exercises a number of peoplethe measure could perversely lead to companies taking on more external debt, but would be to the detriment of inbound investment into the UK and perhaps outbound investment, too.
Mr. Mark Field (Cities of London and Westminster) (Con): I echo the words of my hon. Friend in introducing the subject. I ask the Minister for an indication of the Treasurys broader thinking. No one can dispute that it is quite acceptable at times to utilise the tax system to incentivise or disincentivise certain behaviours. However, my concern is that the worldwide debt cap that has been
We have a Finance Bill every year and I suppose that it is quite legitimate for any Government on a short-term basis to put such a regime in place to deal with the problems of the day, which can then be done away with in a year or twos time, but the proposed regime obviously adds an extra layer of complexity, not least because the worldwide debt cap applies to global companiescompanies with significant interests here in the UK, but which also have operations overseas. Given that it is a worldwide debt cap, I would be interested to have some indication from the Treasury as to precisely what negotiations have taken place with other countries and whether the measure is part and parcel of a concerted international process.
I worry that the measure may have been put in place because of the present problems. I accept that the genesis may not lie in September 2008, but may be found a little bit before that. That raises the obvious question that my hon. Friend mentioned in relation to the private equity industry. In many ways, we have seen a skewing of the tax system over the past decade or so: extremely low tax rates have made the putting of debt on to the balance sheet a much more attractive proposition. We are moving away from that now, and the Minister will rightly point out that, in the present climate, he wants to disincentivise having a hell of a lot of debt on the balance sheet. That may be an academic point, because I suspect that many private equity providers will not be able to get that much debt on their balance sheet, even if they want to. Many private equity players have problems, but because of the lack of liquidity they are trying to raise relatively small sums of money for debt-for-equity swaps. That is probably a more desirable way to run those businesses in the longer term.
Above all, I am keen to know what the Treasurys broad thinking is. Is this a short-term measure given our specific problems at the moment, or is it part of a longer-term regime to incentivise longer-term behaviours in relation to debt?
Dr. Pugh: I rise to be constructive about clause 35 and the schedule that follows. It seems to be about the understanding of complex companies and their financial footprint. That is highly desirable. It ensures that profits are appropriately taxed and placed. It ensures that parent companies are identified. It is not always easy to find the parent company of a subsidiary. It is also mindful of the need to avoid double taxation. It is an exceptionally difficult area. The difficulty is well illustrated by the number of Treasury amendments that have appeared since the legislation was put before us. It also seems to me to be about an area on which most of us cannot directly comment. It is highly technical. Schedule 15 refers to things such as staple companies and stranded deficits. It also incorporates a fair amount of algebra, which other Members may be able to explain, but I certainly cannot.
It is also fundamentally about imposing international accountancy standards fairly rigorously, which I welcome. That is a recipe for business efficiency. People talk about
The arguments and concerns with clause 35 are ones that we will hear in connection with any clause of this nature. People always talk about compliance benefits and capital flow. Those arguments are used so often that it is almost like crying wolf. One wants to know whether there is any credibility attached to the complaints here. It seems that some of the more vocal people voicing these concerns are those who are prepared to pay huge sums of money on tax advisers. Surely that could go some way towards meeting the clients costs.
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