
For years, campaigners and the media have
railed against multi-national companies like Google, Amazon, and Apple for
paying what they perceive to be little to no corporation tax to HMRC. Calls to
correct what many considered favourable treatment of some of the world’s
biggest companies grew quickly in volume after the Great Recession of
2008-2009. The recession caused a significant dip in the amount of tax
collected from people and from companies leading many advanced economies,
including the UK, to run up huge current account deficits contributing to
record levels of government indebtedness.
Published in the Finance Bill
of 2015, the government introduced a new measure called the Diverted
Profits Tax (DPT). Following the publication, many tax professionals noted the
surprisingly wide scope of companies targeted under the new regulations,
commenting that firms operating in tax neutral locations would likely be
affected.
In the words of the Finance Bill, the aim of
DPT was to “counter the use of aggressive tax planning techniques used by
multinational enterprises to divert profits from the UK to low tax
jurisdictions.” Although the purpose of the bill may mainly have been focused
towards increasing tax receipts to the Exchequer, the political ambition of the
bill was to ensure that no company enjoy tax arrangements that others in the
same industry may deem to be “unfair”.
DPT specifically targets profits that would have been taxed in the UK but, in the opinion of HMRC, have been artificially or unfairly diverted to an overseas jurisdiction. The law came into force on 1st April 2015.
While it does have the potential to affect how technology companies’ profits in the UK are taxed, its focus, as we mentioned earlier, is far wider and can include tax arrangements for firms in real estate, fund management, reinsurance, insurance, manufacturing, and distribution.
Any profit that HMRC deems to have been
diverted is taxed at 25% rather than at the standard UK corporation tax rate of
19%.
DPT covers a number of different types of
arrangements between constituent members of international companies, including
but not limited to:
•a UK company’s relationship with a non-UK entity whose sole purposes seems to be the suppression of the level of profit
•an overseas company doing business in the UK
but the business carried out by the foreign company is designed so that it
appears that it has no taxable presence in the UK
In the 2017/2018 tax year, DPT contributed
£388m to the Treasury, up £107m from the previous year, from 22 businesses. The
amount collected by the Government under the DPT regime is certainly larger
than HMRC had anticipated. Of surprise to many commentators too is the size of
the payments made by individual companies which have been found to have
breached the rules.
According to Bloomberg,
192 assessments have been made for DPT since April 2015 and that HMRC believes
that there are “many more companies which should be subject to the tax”.
For companies found to have incorrectly
declared profits by not correctly applying DPT rules, there is currently a
penalty charge of 30% on the amount of DPT that HMRC believes should have been
paid.
The Profit Diversion Compliance Facility –
what is it?
In order to encourage greater compliance in
the future and to recover missing tax which should have been paid in previous
tax years by companies, HMRC have launched a new department called the Profit
Diversion Compliance Facility.
During their investigations to date, HMRC have
found that companies “have adopted cross-border pricing arrangements that are
based on an incorrect fact pattern and/or are not consistent with the OECD’s Transfer
Pricing Guidelines (TPG)”.
Transfer pricing is the cost of supplying
goods or services between different companies within a larger group structure.
The prices at which goods or services are sold between related companies
influences the level of profit that can be declared.
If the price at which one company in the US
sells something to another group company in the UK but it is at a rate which is
higher than would be expected if it was an open market transaction, that higher
price will suppress profitability in the UK. It’s this type of transaction that
DPT was intended to stop.
The Profit Diversion Compliance Facility’s aim
is to encourage companies to voluntarily disclose mistakes they’ve made with
transfer pricing and other practices related to DPT and failures to notify HMRC
that there may be a liability.
Be in doubt that the Profit Diversion
Compliance Facility is not offering amnesty for reporting accounting oversights
and mistakes to companies. Companies should still expect to pay all owed taxes
in full for the last reported year and years prior to that. Interest and other
penalties will almost certainly be charged on overdue monies. The only benefit
to co-operation is that an additional 30% penalty charge may not be added onto
the sum of the underpaid tax, the interest, and the other penalties imposed.
The
Times reports that up to 2,000 businesses will be
affected by the risk assessment process undertaken by HMRC for investigation by
the Profit Diversion Compliance Facility.
The Tax Faculty Team at ICAEW expect HMRC to “issue so-called ‘nudge’ letters to businesses it considers should either use the facility, or which they consider need to review their affairs and potentially make a voluntary disclosure.”
PDCF Advice
Our experienced team will be able to advise and assist companies through the PDCF process. For more information or to discuss a potential case, talk to our team on 0808 169 9090, email enquiries@forthstax.co.uk or fill out an Enquiry Form.