Financial Services - Autumn Budget 2021 commentary

Many of the Budget announcements had already been released in some capacity so were expected, although there were welcome announcements for some reliefs that have been enhanced and/or extended.

In her reply to the Budget, Rachel Reeve (Labour’s Shadow Chancellor) said that “At least the bankers on short-haul flights sipping Champagne will be cheering this Budget today”. It is understandable why this may have been the response, although this suggests the Budget was positively skewed to the Financial Services industry, which it was not.

The devil is always in the detail and we are still awaiting much of the legislation to review, but the key relevant headlines so far are:

• Corporation tax will increase to 25% from April 2023 (as previously announced) on profits over £250,000 – there are therefore some consequential amendments:
  • Bank surcharge to be reduced to 3% from April 2023
  • The diverted profits tax rate will increase to 31% from April 2023 (as previously announced) and there are some detailed changes to the proposals that legislate options to reduce the chance of DPT being payable.
• The proposed requirement to notify HMRC of Uncertain Tax Positions will continue, although there may be some relaxing of the basis
• Further detail to the Residential Property Developer Tax was set out, with the rate now set at 4% on profits above £25m realised by companies developing residential property for sale
• Amendments to the Real Estate Investment Trust regime will be introduced to make it more widely available and remove administrative burdens
• The tax legislation required to cope with IFRS 17 (Insurance Contracts) was not announced in detail, although the policy paper does mention ‘spreading’ as an objective for the consultation
• A new Economic Crime Levy is to be introduced in 2022/23 for businesses subject to Anti-Money Laundering rules – the amount will vary depending on revenues although it appears that this will not be a significant issue for most Financial Services groups
• R&D tax relief will be amended from April 2023 to include expenditure on cloud computing and data storage services (which is relevant for many Financial Services businesses), although overseas expenditure will no longer qualify
• Increases in the pension age from 55 to 57 in 2028 will affect pension savings and withdrawals but not immediately
• The increases proposed in the fees permitted to be charged to stakeholder pensions will increase the choice of asset classes for policyholders but will have a second-order irrecoverable VAT increase for large stakeholder pension writers
• Changes to Business Rates will impact those invested in retail, hospitality and leisure assets
• There were several announcements in the separate notes that accompany the Chancellor’s Budget, which will tighten up existing rules – for example, hybrid mismatch rules and Insurance Premium Tax 

Notification of uncertain tax positions by large businesses

This legislation is coming into effect from 1 April 2022. The measure is designed to reduce the ‘legal interpretation tax gap’. It seeks to have large businesses provide HMRC with details of any tax matters (above a £5m threshold) where there is a potentially contentious treatment.
The key takeaway from the way it has been introduced is the Government has not included one of the proposed triggers (a substantial possibility of a court or tribunal ruling against the position a company has adopted). It has been indicated that HMRC are intending to consult further on this.

Economic Crime (Anti-Money Laundering) Levy

Commencing 1 April 2022, a new tax called the Economic Crime (Anti-Money Laundering) Levy will be charged on entities regulated under Money Laundering, Terrorist Financing and Transfer of Funds Regulations 2017. This includes various financial institutions, professional services firms, estate agents, casinos, art market participants, crypto asset exchanges and custodian wallet providers.

• Small entities, with revenue below £10.2m will be exempt
• Medium-sized entities (£10.2m to £36m revenue) are expected to pay a fixed fee in the region of £5,000 to £15,000
• Large entities (£36m to £1bn revenue) are expected to pay £30,000 to £50,000
• Very large entities (over £1bn revenue) are expected to pay £150,000 to £250,000

The levy aims to raise £100m per year.

Diverted Profits Tax (‘DPT’)

DPT applies to profits arising from 1 April 2015 and is focused on contrived arrangements used by large groups that are designed to erode the UK tax base. As announced in the 2021 Spring Budget, the starting DPT rate of 25% will increase to 31% from 1 April 2023, to maintain the current differential between the DPT rate and the Corporation Tax rate.

In practice, the operation of DPT means that although the onus remains on the taxpayer to notify HMRC if DPT may apply, it is possible to reduce the actual DPT liability to zero by correcting the corporate tax position i.e. making transfer pricing adjustments to bring pricing in line with the arm’s length principle.

Two DPT related measures were announced in the Autumn Budget.

Mutual Agreement Procedure (‘MAP’) decisions relating to the Diverted Profits Tax

Under this measure, a possible DPT assessment may now be within the scope of arrangements that may be mutually agreed between tax authorities under a MAP. Opening up DPT profits to potential MAP agreement may reduce the extent of profit subject to the higher rates of DPT and reduce the risk of double taxation for groups. This change will take effect in relation to MAP decisions reached after 27 October 2021.

Diverted Profits Tax - interaction with Corporation Tax closure notices and amendment to relieving provision

The second measure appears to further reduce the likelihood that DPT is payable in practice.

Legislative updates will be made to preserve the intended route for a company to obtain relief from DPT by amending corporation tax returns and bring taxable diverted profits into the charge to corporation tax during the diverted profits review window (i.e. 15 months after the upfront DPT payment has been made). It also ensures that corporation tax enquiry closure notices cannot be issued until after the end of the diverted profits review window.

Hybrid mismatch rules

A specific technical amendment, left out of the Finance Bill 2021, is now to be enacted. The rules for 'hybrid payee deduction/non-inclusion mismatches are to be amended so that, if certain conditions are met, 'relevant transparent entities' are treated as partnerships, and so the counteraction in the rules is not triggered. In particular, the change should assist US LLCs which are fiscally transparent to be regarded as partnerships under these rules. The investors in the relevant transparent entity are to be treated as partners and each investor's hybridity is to be evaluated on its own merits. The relevant clause was published in July.