New anti-avoidance R&D tax relief measures come into force

This post is part of our Entrepreneurial team’s regular series of blogs.

A new PAYE/NIC cap on SME tax credits is coming into force for accounting periods beginning on or after 1st April 2021. The cap is designed to target fraud and abuse of SME tax relief schemes.

This measure has been a long time coming, having gone through a number of consultations. Whilst the cap is not designed to affect genuine and authentic SME tax relief claims, anyone making a claim should be aware of its impact – a business may inadvertently fall foul of the new rules, jeopardising its access to tax credits.

The measure limits the amount of payable Research & Development (R&D) tax credit which an SME can claim to £20,000 plus 300% of its total PAYE and NIC liability for the period. There is an exemption from the cap if:

  • its employees are creating, preparing to create or managing Intellectual Property (IP) and
  • it does not spend more than 15% of its qualifying R&D expenditure on subcontracting R&D to, or the provision of externally provided workers (EPWs) by, connected persons

For these purposes, IP includes: any patent, trademark, registered design, copyright, design right, performer’s right or plant breeder’s right. As announced at the Budget 2021, the definition of IP has, happily, also been widened to include ‘know-how’ and ‘trade secrets’.

There is, however, still a risk that companies may inadvertently be affected by the cap – for example where the company has low payroll expenditure compared to other eligible costs and doesn’t meet the above exemption.

In most instances, particularly where the company is an early start-up, the tax credit can provide a vital lifeline. The PAYE/NIC cap adds another layer of complexity to the tax claim processes which – whilst not impacting the majority of claims – requires companies to plan now rather than wait to the end of their accounting period, to ensure that there is no unintentional impact to this critical source of funding.

If you have any questions, contact me at david.philp@chiene.co.uk or 131 558 5800.

Tax yourself: a Friday tax quiz ahead of the Tax Day

This post is part of our Entrepreneurial team’s regular series of blogs.

In anticipation of UK’s first “Tax Day” on 23 March, which will see Rishi Sunak outline upcoming consultations and medium-long term strategies, we thought that this week we’d offer a tax-themed pop quiz for a Friday afternoon…

    1. Who said: “The nation should have a tax system that looks like someone designed it on purpose.”?
    2. Who said: “The difference between tax avoidance and tax evasion is the thickness of a prison wall.”?
    3. Who said that taxation should follow the four design principles of ability to pay, certainty, convenience and efficiency?
    4. What is referred to as the £20bn “stealth tax” announced in the Budget?
    5. Which tax is most widely expected to be targeted on Tax Day for a rates rise or simplification that results in further tax being raised?
    6. Prior to income tax, which tax was designed to impose tax relative to the prosperity of the payer?
    7. The excess profits tax, introduced to fund the First World War and on profits above the normal pre-war level, was initially at what rate?
    8. In the first budget after Margaret Thatcher’s election victory in 1979, the top rate of income tax was reduced from 83% to what?
    9. What is the proposed rate of a currently proposed online sales tax?

Tricky? Well, here are the possible answers – see if you can match them up: (Note that there are more answers than questions, so some are red herrings.)

    1. Barack Obama, former US president
    2. Denis Healey, UK Chancellor of the Exchequer 1974 -1979
    3. William Simon, US Treasury Secretary 1974 – 1977
    4. 2%
    5. 60%
    6. Capital gains tax
    7. 50%
    8. A freeze on income tax, capital gains and IHT thresholds/allowances
    9. The poor tax
    10. 5%
    11. The window tax
    12. Inheritance tax
    13. Adam Smith, Scottish economist

Got them? Answers below…

The answers…

 

    1. Who said: “The nation should have a tax system that looks like someone designed it on purpose.”? C – William Simon, US Treasury Secretary 1974-1977 
    2. Who said: “The difference between tax avoidance and tax evasion is the thickness of a prison wall.”? B – Denis Healey, UK Chancellor of the Exchequer 1974 – 1979
    3. Who said that taxation should follow the four design principles of ability to pay, certainty, convenience and efficiency? M – Adam Smith, Scottish economist
    4. What is referred to as the £20bn “stealth tax” announced in the Budget? H – A freeze on income tax, capital gains and IHT thresholds/allowances
    5. Which tax is most widely expected to be targeted on Tax Day for a rates rise or simplification that results in further tax being raised? F – Capital gains tax
    6. Prior to income tax, which tax was designed to impose tax relative to the prosperity of the payer? K – The window tax
    7. The excess profits tax, introduced to fund the First World War and on profits above the normal pre-war level, was initially at what rate? G – 50%
    8. In the first budget after Margaret Thatcher’s election victory in 1979, the top rate of income tax was reduced from 83% to what? E – 60%
    9. What is the proposed rate of a currently proposed online sales tax? D – 2%

 

We hope you enjoyed the quiz. Check back with us for analysis and information about the Tax Day on 23 March.

EMI consultation: share your views on possible expansion

This post is part of our Entrepreneurial team’s regular series of blogs.

One of the somewhat unexpected outcomes of the Budget on 3 March was the announcement of a consultation into the Enterprise Management Incentive (“EMI”) scheme. The EMI scheme, as noted in previous blogs, is a key tool for high-growth companies in recruiting and retaining employees.

Although there were many calls from industry bodies and professionals for a consultation on the scope of the Enterprise Investment Scheme (“EIS”), the Chancellor chose instead to focus on EMI, seeking evidence on whether the scheme should be expanded and how it could be expanded to best support high-growth companies.

The consultation is open and is seeking evidence on the following points:

  • Whether the scheme currently meets it policy objective of helping companies to recruit and retain employees.
  • Whether the scheme is meeting its objective of helping SMEs grow and develop.
  • Evidence on which aspect of the scheme is most valuable in helping SMEs with their recruitment and retention objectives.

The ways in which the scheme could be expanded could result in an extension of the qualifying trade criteria regarding the type of trade undertaken by a company, or perhaps the limits relating to the value of options a company can issue or an individual can hold, or less likely, an extension of the tax advantages, for example in relation to Business Asset Disposal Relief. Currently the limit of Business Asset Disposal Relief is £1 million, in line with the reduction from £10 million to £1 million for all eligible capital gains. It appears from the consultation document that one of the key areas for potential expansion would be regarding the limits imposed.

Further, the document asks whether the other tax-advantaged share schemes offer sufficient support to high-growth companies where they no longer qualify for EMI. We have recently commented on the use of CSOP as an effective tool, however, whether this is of much use once the EMI limits have been breached is questionable. The flexibility of EMI certainly makes it the most advantageous scheme and many companies will go on to use a form of growth share scheme once the EMI limits are reached, in order to ensure the highest growth opportunity for employees.

We will, of course, be responding to the consultation and encourage businesses who have used the scheme to either respond directly with evidence or get in touch with us if they wish to feed into our response.

If you have any questions on the consultation or how to provide evidence, please contact me as I will be collating our response.

Key points from a recent case about Research and Development tax relief

This post is part of our Entrepreneurial team’s regular series of blogs.

First Tier Tribunal cases and their decisions can provide useful clarification about R&D tax relief and how HMRC expects the guidance and legislation to be applied.

In this blog, I’ve summarised the facts of the Hadee Engineering Co Ltd v HMRC case from October 2020, looking at why the taxpayer lost and the key points to take away so you don’t fall foul of the same mistakes.

Costs

The court found that the taxpayer had, incorrectly, overstated salary costs and claimed for bonuses that were actually in the accounts for a previous period.

It was also found that there was a lack of evidence in relation to payments for materials and subcontractors. The taxpayer could not provide any evidence that these costs were incurred by the company or within the time period of the claim.

In addition, time and expenditure incurred on non-qualifying, routine activities were being claimed for, and the apportionments applied could not be justified.

Key points to take away:

  • It is important to remember that costs are only eligible for R&D tax relief if they are deductible for corporation tax purposes within the accounting period of the relevant R&D claim. Including costs from a different period or costs that are not deductible in calculating the profit of the trade is a breach of the rules (HMRC guidance CIRD81450).
  • While HMRC don’t require companies to keep detailed records, at a minimum a claimant company should be able to produce invoices and bank statements to confirm that these costs were incurred and within the relevant period. The “competent professionals” involved in the projects must understand what activities qualify for R&D tax relief, so they can arrive at ‘just and reasonable’ percentages to be applied to costs, that reflect the extent to which they were involved in the qualifying activities. If they are ever asked, they can then justify the approach taken to HMRC.

What is a competent professional?

Only one individual was provided by the company as a competent professional, but was unable to provide the relevant technical detail to allow HMRC to assess the qualifying nature of the projects. This meant that HMRC was unable to confirm that the projects included in the claim did actually qualify as R&D for tax purposes.

Key points to take away:

  • We often refer to competent professionals in the course of preparing an R&D claim, because HMRC sets this as the test for assessing whether an activity meets the criteria of qualifying R&D. Although the term ‘competent professional’ is not explicitly defined, they are qualified or time-experienced members of staff within the area of science or technology of which the advance is being sought.
  • These individuals need to be involved in the R&D claim process to some extent as they are required to provide the necessary supporting technical detail to enable HMRC to assess the eligibility of the projects. They are also required to provide the qualifying percentages that are applied to costs.

Supporting evidence

The case raised issues with the level of evidence provided by the appellant in support of their claim. HMRC argued that it was inconsistent, incomplete and did not address the key criteria which need to exist for activities to qualify for R&D tax relief.

Key point to take away:

  • While there is currently no standard format or template in which supporting evidence for a claim should be submitted to HMRC, it is pushing for more consistency. As such, HMRC has recently provided guidance for the type of information that should be included and clarified how many projects evidence needs to be submitted for.

Existence of a project

One of the requirements for qualifying R&D activities to be taking place is for the existence of a project. HMRC argued that there was no evidence that any projects existed within the claimant company. They stated that, for a project to exist, companies should have detailed evidence and records in-house that substantiate the plans and activities carried out.

Key points to take away:

  • Again, there is no specific definition of what constitutes a project in the R&D guidance or legislation. The judge in this case referenced the dictionary, stating that a project was a “plan or scheme; a planned undertaking” and agreed with HMRC that a formulation of a plan is required for a project to exist.
  • Companies claiming, or planning to claim, R&D tax relief should be aware that some form of record or documentary evidence is expected and, if that’s not possible, a competent professional is required to provide a detailed explanation. This again highlights the need for technically-detailed and structured supporting evidence to be submitted in support of a claim.

What constitutes subcontracted R&D?

A number of the taxpayer’s projects were undertaken in conjunction with customers. HMRC argued that the projects would be considered to be subcontracted because the company was commissioned to design bespoke products for customers. This meant that, if the projects did involve qualifying activities, they would be only eligible for relief under the RDEC scheme. (The RDEC scheme is open to large company and SMEs which do not qualify for the more lucrative SME R&D Tax Credit scheme. It is notably less lucrative, but still worth considering submitting a claim for.)

The judge referred to the contracts in place between the two parties and primarily focused on the economic risk, where in this case the claimant company was paid on an hourly basis for the work undertaken. As the taxpayer did not bear any economic risk, it was ruled that the projects were subcontracted. To further support the ruling, the customer on one project had successfully filed a patent for the design work carried out by the claimant company.

Key points to take away:

  • There is limited guidance available to assist in determining whether a project is subcontracted or in-house for R&D purposes. The three main points that should be considered are:
    • The ownership of the arising intellectual property;
    • Who bears the economic risk; and
    • The degree of autonomy enjoyed.
  • These points should always be considered when drawing up a contract with a customer when you will be undertaking qualifying R&D activities. If, for example, the contract supports that you retain any arising IP, you bear the cost of any project overrun and you have autonomy over how the work is conducted, then the project will still be eligible for relief under the more generous SME scheme.

Final thoughts

Ultimately, the court found that only one of the projects was eligible for R&D tax relief (though the amount of qualifying expenditure on that project is still in dispute).

In light of the coronavirus pandemic, HMRC is dedicating more staff to process R&D claims. While this means that we are generally seeing HMRC pay out claims quicker, it also means that HMRC has more resources to look into, and potentially enquire into, claims.

Here at C+T, our report format is designed to give HMRC all of the information it requires to assess the eligibility of a claim, to prevent an enquiry being opened to request more details. We also have experience in dealing with all of the complex factors that need to be considered when preparing an R&D tax relief claim, including contractual arrangements, which HMRC specifically scrutinised in this case.

Our team of experts are on hand to help you through the claim process, to give you peace of mind that all of the relevant factors have been considered and the risk of enquiry is significantly reduced. If you have any questions, get in touch and we can advise.

New blog: my time working in the Entrepreneurial Tax Team

Mid-way through my third year at university, summer internships seemed to be on everyone’s mind. Most people I knew were talking about the roles that they had applied for and how important internships were for putting you in a good starting position post-university. Doing an internship seemed like a great idea, it would provide me with an interesting way to fill my 3-month summer break, learn more about the working world and develop new skills. Having enjoyed the brief two weeks of work experience I had done with Chiene + Tait the previous summer, an internship with the entrepreneurial tax team seemed like the ideal opportunity.  I applied and was thrilled when I was offered an interview and even more thrilled when I was offered a six-week position with the firm.

Going from university to working at Chiene + Tait took some adjustment. I’m currently studying Economics and Modern History and I thought when I first joined the firm that studying these subjects would be vastly different to working in an accountancy firm. At university I only have around six contact hours a week  (I’m sure the English and international students must wonder what they’re paying for a lot of the time) and, although the lack of teaching time does mean a significant amount of independent study and long days spent in the library, it is often quite an unstructured working environment. Joining the firm this summer has given me an insight into what my working life could be like. I have also found that although some of the knowledge I have gained from university may not always be useful (or who knows maybe one day that modern history essay on the cultural impact of the miniskirt will come in handy), the skills I have gained often are.

‘So, what actually is entrepreneurial tax?’ A question I have been asked many times by my friends and family since starting my internship at Chiene + Tait this summer, and one that I struggled to fully answer at first. Over the past three weeks I have quickly learned what a job in entrepreneurial tax entails (although from writing this blog I’m beginning to realise that I may never learn how to spell entrepreneurial), and I have seen the great work that Chiene + Tait does for growing businesses. Throughout my time here I’ve been assigned interesting and engaging work to do with the various schemes available to companies and investors. From Enterprise Management Incentives (EMI) to Enterprise Investment Schemes (EIS) and Research & Development Tax Credits the variety of work I have been assigned has been challenging but also enjoyable. It has shown me just how many fascinating companies the firm deals with.  I’ve even attempted some Corporate Tax which I think I might be finally wrapping my head around. In just three weeks my knowledge of Entrepreneurial Tax and other types of tax has grown substantially, and I can now provide a more detailed answer when people ask me what entrepreneurial tax is.

The work and type of clients have been very interesting but above all, being made to feel part of such a friendly team has made the whole experience very enjoyable.

Grants v R&D tax credits – How to have your cake and eat it too!

In this blog David Philp in our Entrepreneurial Tax Team highlights how receiving grants can restrict a company’s ability to claim other tax reliefs such as R&D tax credits.

 

Grants form a vital part in the startup lifecycle, providing critical financial support to innovative companies. They give companies cash at a time when they are unlikely to have profits or even an income stream. The cash can be used to invest in further development, or to just keep the lights on for another couple of months.

However, as the saying goes “you don’t get anything for free” – receiving a grant could restrict the company’s ability to claim further tax reliefs and incentives.

Research & Development (R&D) Tax Relief (further info can be found here) is one of the most generous corporation tax breaks available, designed to encourage innovation and increase spending on R&D activities. It provides vital funds to startups in the early years of their development. There are two R&D schemes that run in parallel: the SME scheme and the RDEC scheme.

To qualify for the SME scheme, the company must have fewer than 500 employees and either have an annual turnover of less than €100m or gross assets of less than €86m. The SME scheme is by far the more beneficial out of the two available. For every £1 the company spends on qualifying R&D costs, the company can receive 33.35p in tax credits. This is a significantly higher level of relief than the level available under the RDEC scheme, which provides an 8.8p (which for expenditure after 31/3/17, increases to a whopping 8.9p) tax credit for every £1 spent on qualifying R&D costs (there are also further restrictions on what expenditure qualifies under the RDEC scheme).

The main issue that arises is that, as the SME scheme is so advantageous, the relief itself is deemed to be Notified State Aid. A Notified State Aid is one where the European Commission has been notified of the grant’s existence. In a bid to guarantee a level playing field for European businesses, the European Commission restricts Notified State Aids to one per project. That means if the company has already received Notified State Aid for a project, that project will not qualify under the SME scheme.

Unfortunately, it is not possible to repay the Notified State Aid. Once received, the project is automatically excluded from claiming R&D tax relief under the SME scheme.

This can have a disastrous effect to the availability of future relief for the company, which is best shown by the example below. Let’s assume that a loss-making fintech company (SME) is developing a single R&D project, spending £250,000 on R&D-qualifying staff costs and £70,000 on costs which were subcontracted to another company. To help with cashflow they also applied for a grant of £40,000.

Option AOption B
No Grant Received£40,000 Notified State Aid Received
Loss Making
SMERDEC
Qualifying Costs
Staff costs250,000250,000
Subcontractor costs (SME – restricted to 65%, RDEC Scheme – ineligble)45,0000
Less: Grant received (ineligible under SME Scheme, instead eligible under the RDEC scheme)0 0
Qualifying costs under the SME scheme295,5000
Qualifying costs under the RDEC scheme0250,000
Tax Relief
SME scheme – tax credit worth 33.35% of qualifying costs98,5490
RDEC scheme – tax credit worth 8.8% of qualifying costs (subject to restrictions)022,000
Grant received040,000
                                                                                                        
Total relief (R&D and Grant)98,54962,000

 

You can see that, if the grant was Notified State Aid, it would significantly restrict the total relief available to the company. In this instance, the company would have been in a better position had it not taken the “free money”. This also restricts relief for future periods. Therefore, it is imperative to consider all your options before accepting cash in a form of a grant.

There are, however, a couple of things that you can do to avoid any potential pitfalls. By following the tips below it is possible to maximise your claim by combining both grants and R&D tax relief:

Know what type of grant your applying for – firstly, not all grants are classed as Notified State Aid and, as such, not all grants will land you in the less advantageous RDEC scheme. De-Minimis aid, which can distribute up to €200,000 worth of funding, is not classed as Notified State Aid and will therefore not force the project into the RDEC scheme. In this instance, it is possible to split relief over the two schemes: subsidised expenditure would fall under the RDEC scheme while the remaining unfunded expenditure will remain qualifying under the SME scheme, as seen in Option C below.

 

Option AOption BOption C
No Grant Received£40,000 Notified State Aid Received£40,000 De-Minimis Aid Received
Loss making
SMERDECSME/ RDEC
Qualifying Costs
Staff Costs250,000250,000250,000
Subcontractor costs (SME – restricted to 65%, RDEC Scheme – ineligible45,500045,500
Less: Grant received (ineligble under SME Scheme, instead eligible under the RDEC scheme)                             0                                                     0                                         -40,000
Qualifying costs under the SME scheme295,5000255,500
Qualifying costs under the RDEC scheme0250,00040,000
Tax Relief
SME scheme – tax credit worth 33.35% of qualifying costs98,549085,209
RDEC scheme – tax credit worth 8.8% of qualifying costs (subject to restrictions)022,0003,520
Grant received040,00040,000
                                                                                                                                                  
Total relief (R&D and Grant)98,54962,000128,729

 

Determine what project the grant relates to – the rules apply on a project by project basis, not on the total R&D work undertaken in the year. If you have received Notified State Aid in relation to one project, this does not affect your ability to claim under the SME scheme for any remaining projects. Likewise, if you have received Notified State Aid in relation to non-R&D activities, this will not affect your SME claim.

Look at the long-term implications – remember, once you have received Notified State Aid in relation to a project, that’s it: there is no way back. Try to consider the long-term implication of receiving the grant and how it will affect future claims. Taking a small £10,000 grant at the early stages of a R&D project may help cashflow in the short term, however this could also affect the ability to claim R&D tax relief in future years.

Speak to people who know R&D tax relief – I might be slightly biased here but R&D tax relief is an ever-changing, complex area of legislation and it really does pay to speak to an expert to ensure that you are maximising your claim, whilst also planning ahead to avoid any potential pitfalls.  A quick chat at the beginning of a project can provide you with a clear and proactive action plan, leaving you with more time to run your business!

If you have any queries about R&D tax relief, Notified State Aid or De-Minimis State Aid related to investment, contact David Philp today at entrepreneur@chiene.co.uk.