Joint Committee on Tax Law Rewrite Bills Minutes of Evidence


Examination of Witnesses(Questions 60-79)

MR PETER MICHAEL CBE, MR PETER KNOWLES CB, MS JACKIE CRAWFORD, MRS CHERYL SCOTT, MRS WENDY SAMPSON, MRS ALISON BERTLIN, MISS CLAIRE DILLON AND MRS JENNY MANSON

TUESDAY 14 JANUARY 2003

  60. No extra-statutory concession is subject to parliamentary scrutiny.
  (Mrs Scott) No. One of the reasons why it was operated by extra-statutory concession was that it compares the overseas target employee with an employee in the Civil Service in the UK. There are obviously changes in the labels attached to civil servants and the levels at which they are remunerated and whatever else may crop up from time to time. The Board may reflect those mechanical changes by having an order of this nature without having to have recourse to Parliament. Speaking on behalf of the Inland Revenue, there is no way in which the Inland Revenue would seek to make a significant change without going to government and asking for advice and seeking the government's view on it. It would seem a different kind of possible amendment that we have in mind for this particular kind of order than for others where we might be considering different amounts or whatever, but here we would be looking at probably changes in job title or changes in descriptions. If we go from being in the Civil Service to having a different title we would have to amend.

  Mr Jack: Can I raise the intriguing subject to change 90, "Deduction of expenses of ministers of religion"? Ministers of religion keep popping up.

  Chairman: This is one which shows a possible increase in taxation. When you read the explanation in Appendix 5 it is difficult to see how.

  Mr Jack: Indeed, but they keep popping up now in Thought for the Day to Radio 2 to all kinds of various things. There are clearly a lot of ministers who take a keen interest in this. One point of definition before I start asking questions about how you explore this one: is there a definition in this Bill of what is a minister of religion?

  Baroness Cohen of Pimlico: Can I set up my own?

  Mr Jack: Yes.

Chairman

  61. In America it is usual to do so for tax purposes and you are completely exempt. One reason for founding your own church is that all your business activities will be removed from tax. That is not true here, I do not think. We would have many more churches if we had the same situation here.
  (Mr Michael) It is not defined in the Bill. It is a question of general law.

Mr Jack

  62. It may well be there are a number of bizarre churches establishing and that is where we will have to leave the matter for the time being. What this appears to say is that you have ended some cross-scheduling of this particular Act. Could you explain the mechanism that you have used to bring the Schedule D and Schedule E treatment of this together in a way which you say at the conclusion of this in Appendix 3 you believe will cover any possible cause of hardship?
  (Mrs Scott) At present most ministers of religion are taxable as office members under Schedule E and we understand that there are a few chargeable under Schedule D as exercising the profession of a minister. We are not aware that there are any that do the mixing and matching to start with but it is a possibility. You mentioned the ministers cropping on Radio 2 and whatever. Income from journalism by an office holding minister is not chargeable under Schedule D as profits from exercising his profession as a minister. That would be his journalism activities rather than his clerical activities. If a minister should happen to be chargeable under Schedule D and in this Bill and he makes a loss in either of those, then the expense may be set against either source and if that expense creates a loss then we allow it to be set against the other source, so instead of just being able to set the expense directly against the other source you set it first against the chargeable income and if it produces a loss you can set it off against the other. You should get the same number arithmetically at the end of the day.

  Mr Jack: So the taxpayer is no worse off by this reformulation?

Chairman

  63. Why do you then tick it as a liability for more tax? On that explanation you have just given it cannot make the slightest practical difference to quite a lot of ministers of religion who do have some self-employed income and fee based income outside their earnings as a minister. The Radio 4 people must all be covered by this but up and down the country quite a lot of ministers are lucky enough to at least have some small source of income outside their living.
  (Mrs Scott) They may have a small source of income outside their living but it may not be as a minister. They may have income as a journalist.

  64. I see. This is only referring to them if, for example, they are doing funerals freelance?
  (Mrs Scott) Yes, freelance funerals.

  65. That is self-employed income as a minister. One should not name individuals but let us take somebody who is dead, as far as I know. The Reverend Awdry must have made a fortune writing books about Thomas the Tank Engine which far exceeded whatever he was earning in his living. This does not apply to somebody like that at all?
  (Mrs Scott) No.

  66. It is only if the Reverend Awdry had some non-salaried income which was being earned as a minister of religion doing some other religious function in his capacity as a minister that this would bite? That is why it is such a rarity?
  (Mrs Scott) Yes.

  67. You say "yes". Are you sure we are right?
  (Mrs Scott) Yes, I am sure that you are right. I am just reading a piece of paper which has been passed to me by a colleague to deal with an earlier point that you raised and that was why had we ticked the box that may mean a difference in tax. It will mean a difference in the earnings chargeable. It will mean a difference in the Schedule E computation possibly but not overall. I suppose theoretically you might—

Baroness Cohen of Pimlico

  68. Claim under Schedule D?
  (Mrs Scott) You might have a situation where, because you have got a Schedule E liability at one point in the calendar year and a Schedule D liability at a slightly different point in the tax year, you might have things being paid at slightly different times. We are not denying anybody any expenses is what it boils down to.

Mr Jack

  69. Can we proceed to change 28 which perhaps might have a more universal application than Thought for the Day and its presenters? This deals with your calculations of leap years. I wondered if you could explain this first of all to us.
  (Mrs Scott) In the existing tax law, although the computations in leap years have been around for a very long time, when setting out a computation that depends on having to apportion something by reference to a year, the existing legislation does not envisage a leap year. It is a change that will only be relevant one year in four and even then the effect of it will be very marginal as the difference between using 366 days and 365 days is less than one third of 1%, so we think it is quite small. Because it was a significant difference from what we had seen before in the way in which a year was expressed, we specifically asked in the consultation whether respondents thought it was a good idea to deal with the possibility of a leap year arising every four years, unsurprisingly, and all the respondents who came back to us said that it was a good idea to deal with this on a consistent basis and use "Y" to represent the number of days in a year instead of a fixed 365.

  70. What about consistency therefore between this Bill and every other part of the tax system?
  (Mrs Scott) We can only rewrite a proportion of it at a time.

  71. The point I am making is, does that mean you have a different treatment of "year" in this Bill as opposed to the treatment of "year" elsewhere?
  (Mrs Scott) For now we may well do.

  Mr Jack: But although it is a very small percentage, and I accept that, if you happen to be in the money market and it was a roller coaster, one third of 1% of X billions can be quite a lot.

  Chairman: It is only car allowances. All we are talking about here is the apportionment of car allowances.

  Mr Jack: I am getting carried away now. I am sorry.

  Dawn Primarolo: If you had a Formula One racing car in a leap year perhaps.

  Chairman: Or a fleet of Rolls Royces.

Mr Pond

  72. How does this reduce complexity? Is it a sensible change to make or is it a change that makes the legislation easier to understand?
  (Mrs Scott) Quite often, looking back on my time as a tax inspector, I would see people who used 366 days instead of 365 days because they thought, "Oh, it is a leap year". It is an intuitive thing to do if you have got 366 days in the year. You might think that that is how you should apportion it. What we are doing is just recognising the fact that the number of days in a year varies.

  73. I know it is a sensible thing to do but do not know if it necessarily makes the legislation easier to understand.
  (Mrs Scott) It makes it more consistent to have one method of looking at a year rather than having several, some of which are a fixed 365 days and others which refer to the number of days in a year.

  Mr Pond: I am not arguing against it. I am just not sure where it fits in with the project.

Chairman

  74. It is not so much improving the English, which is where we started, but bringing the drafting in line with reality or common sense. In the MPs' one all you have done is change the basis for the deduction for accommodation allowances from the specific provisions to a general deduction. Then you say that in fact it makes no practical difference because there is nothing outside the present specific provisions which would make any change. Why is that? Is it more common sense? Is it clearer to have a general deduction knowing that nobody is going to widen it? What is it actually for?
  (Mrs Scott) It saves people having to check the provisions that are in Part 5 to see which apply and then coming to the conclusion that these are not relevant at all.

  75. It saves you the trouble of looking up the detailed provisions because the Revenue are confident that nobody is going to come up with anything new that is not already exempt. This is to stop you having to cross-check a rather complicated provision?
  (Mrs Scott) Yes.

  Lord Howe of Aberavon: The Schedules were introduced by Henry Addington 200 years ago. In 1802 he repealed the income tax structure which was a primitive form of self-assessment. He introduced deduction at source in the Schedules in 1803. Thereafter, his career was somewhat less distinguished because he ceased to be Prime Minister and was then Home Secretary for 10 years.

  Chairman: And Speaker, eventually.

  Lord Howe of Aberavon: For a time. In the course of being Home Secretary, he thanked the magistrates and soldiers who were responsible for the Peterloo massacre. His last recorded vote in this House was against the Reform Bill in 1832 so I do not think we need stand in silence in his memory.

  Chairman: We have not yet touched on approved incentive share schemes, which are a very important part of the Bill. It is controversial, complex and possibly subject to amendment. Would any witness like to give any general introduction beyond the memorandum and the Schedules?

  Mr Jack: This part of our questioning deals with all the approved schemes but where are the unapproved ones?

  Baroness Cohen of Pimlico: Which most of us deal with regularly every day. Why am I dealing with predominantly unapproved share schemes?

Chairman

  76. It is because they do not get any tax advantages.
  (Mrs Manson) Unapproved share schemes are dealt with in Part 7 of the Bill. During consultation it was agreed it is very useful to deal with the administrative details of approved schemes in Schedules. By the very nature of things, we are not having to check whether a lot of details are going to be okay for unapproved schemes. I am not a share scheme practitioner but I gather they offer a lot of flexibility which we do not offer with approved share schemes, particularly with the changes in capital gains tax. In some cases, unapproved schemes are more attractive.

Mr Jack

  77. You talk in your note about better alignment of various share schemes in the context of the Bill that is before us. Could you say a word or two about what that process means, particularly for the reader of the Bill? How will they benefit from this better alignment to which you refer specifically in paragraph 37 of your note?
  (Mr Knowles) First of all, one is looking at the overall approach which we have taken to the exposition of these four share schemes. What we have tried to do is adopt a common approach across the piece so that a taxpayer or his adviser who is interested in the tax implications of the various schemes can look at the appropriate clauses in the Bill. On the other hand, those who are concerned with establishing the schemes, the companies and their advisers, will be more interested in the detailed machinery which is contained in the Schedules. Within the Schedules, we have tried to present the material in the same sort of order throughout so that you start off with the introduction, unsurprisingly; then you look at the requirements which need to be met by the various options or shares that can be obtained under the schemes; finally, one comes to the approval mechanism or, in the case of enterprise management incentives, a notification procedure. That is at the structural level. Also, when one is getting down to the nitty gritty of the provisions, one realises that there are inconsistencies here and there. Sometimes we have borrowed an approach which was apparent in the old schemes: the Save As You Earn schemes or the company share option plan schemes. We have looked at those provisions and thought that perhaps the approach taken there could be adopted when we came to rewrite the provisions relating to ESOPs, which we now refer to as share incentive plans. These are very minor changes, for example, making the powers of the Inland Revenue to obtain information consistent. Some of the schemes have said that the Inland Revenue can obtain information which they think is necessary and other schemes have said that the Inland Revenue can obtain information which they reasonably require. There was no point in having those two separate formulations in the Bill. We have aligned all the provisions so that there is a test of reasonably required information.

  78. That resolution of inconsistency has not in any way changed the previously defined mechanisms by which these various share schemes confer benefits on either savers or recipients of the shares or share options. That remains exactly was it was.
  (Mr Knowles) Subject to very minor changes around the edges. We have made it possible for variations to take place on a wider scale but these are low level adjustments in the mechanics. The overall gateways are exactly the same.

  79. When you say variations and mechanics, does that make it effectively easier for companies in the real world and their employees to operate and to understand the mechanisms that are involved in the tax liabilities, involved in share option schemes? Is that what the objective was?
  (Mr Knowles) Certainly. Jenny Manson will correct me if I am wrong, but the existing provisions do not cater for all the possibilities that need to be catered for where you are providing for a variation of share price to take account of alterations in share capital. They do not reflect the present reality. What we have tried to do is to bring them into line more with the present reality. At a more general level, the Share Scheme Lawyers' Group, whom we have consulted extensively, have been very happy with what we have done. They say, as far as the share scheme legislation is concerned, "We believe that the objective of the rewrite project has been very substantially accomplished."


 
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