Justine Riccomini explains why it is important for employment tax practitioners to “look through” what appears to be a complex arrangement and see it for what it really is – in this case, a way of paying cash bonuses to employees.
In Jones Bros Ruthin (Civil Engineering) Co Ltd and Britannia Hotels Ltd v HMRC  TC08378, two cases with similar fact patterns were heard under this First Tier Tribunal case reference – and the decision resulted in the same outcome for both appellants.
Both businesses were running a tax avoidance scheme the purpose of which was to avoid PAYE and NICs on bonus payments and instead apply Capital Gains Tax to the profits of the arrangement. The question to be determined by the Tribunal was to establish whether or not the use of Contracts for Difference (CFD) in a remuneration planning scheme was governed by the Employment-related securities legislation at Part 7 of ITEPA 2003, or not.
Mutton dressed as lamb?
The complex nature of the arrangements needed to be unpicked so that the Tribunal could determine what was actually happening – were the employees receiving a return on a commercial investment, in which case Capital Gains Tax applied, or a good old-fashioned bonus, taxable in the bog-standard way by virtue of S.62 ITEPA 2003 – a bonus which should simply be payrolled and subject to PAYE and NICs as earnings?
HMRC produced a Spotlight paper in February 2016 on the very concept of why they consider CFD do not work, called “Spotlight 28: Employee Bonus Schemes – Growth Securities Ownership Plan and other avoidance schemes based on contracts for difference”.
What were the arrangements in these two cases?
Under the arrangements, Contracts for Difference were used facilitate:
- A minimal upfront payment by the employee for the CFD to be put in place;
- The employee was contracted under the CFD to pay the employer if there was a specified monetary difference in the profits as reported as opposed to those which had been forecast;
- If the profits exceeded a specific level, the employee would receive a payment.
What happened after HMRC reviewed the arrangements?
HMRC concluded that the payments were earnings under a bonus scheme and were not governed by the employment-related securities legislation which would potentially exempt them from being subject to PAYE and NICs as employment earnings. They issued Regulation 80 PAYE assessments on the basis that the CFD did not represent an arm’s length commercial investment-style arrangement, and the employers appealed to the FTT.
What was the FTT’s decision?
Having considered and followed the Supreme Court decision in UBS AG v HMRC  UKCS 13, which concerned itself with a scheme for paying bankers’ bonuses and applied the Ramsay Principle to the fact pattern to take a purposive approach to interpreting the law, the FTT concluded that the ‘only purpose’ of the CFD was… ‘to bring the arrangements within the legislation to obtain the tax benefit’.
The FTT went on to quote the definition supplied by the European Securities and Markets Authority of a CFD insofar as it relates to commercial arrangements:
‘A CFD is an agreement … to exchange the difference between the current price of an underlying asset (shares, currencies, commodities, indices, etc.) and its price when the contract is closed. CFDs are leveraged products. They offer exposure to the markets while requiring you to only put down a small margin (“deposit”) of the total value of the trade. They allow investors to take advantage of prices moving up (by taking “long positions”) or prices moving down (by taking “short positions”) on underlying assets. When the contract is closed you will receive or pay the difference between the closing value and the opening value of the CFD and/or the underlying asset(s).’
The scheme was deemed to fail to fall under the Employment-related securities legislation because:
- There was no commercial objective;
- Whilst the scheme was designed to characterise CFD, there was virtually no chance the employees would make a loss due to the nature of the arrangements in place – so they would instead be highly likely to receive a cash bonus;
- As such, the payments represented employment earnings and should be subjected to Income Tax and NICs in the usual way.
It is interesting to see the outcome of cases which are considered in a purposive way by the courts to reveal what the facts are telling them about what is really going on to reach an equitable and well-founded conclusion.
In other words, dear reader: if something looks too good to be true, it probably is.