Michael Herman and PA
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HM Revenue and Customs suffered a major defeat today when the House of Lords gave the legal all clear to a tax saving arrangement used by thousands of husband-and-wife small businesses.
IT consultant Geoff Jones and his wife, Diana, took on the Revenue after Mr Jones received a £42,000 back tax demand in 2003.
Mr Jones, 50, won his case at the Court of Appeal in December 2005, to the delight of an estimated 30,000 other couples in the same situation, who believed they could legally save on their tax bills by drawing a large part of their income in the form of share dividends, which are taxed at a lower rate than income.
The case centred on whether Mrs Jones’s share of the company profits, paid to her as a 50 per cent shareholder in the form of a dividend, should be taxed as part of her husband’s income.
Mr Jones and his wife, who played a lesser role in the company, both drew a small salary as well as a dividend, which was split equally between them.
HMRC argued the scheme operated by the couple was not permitted under tax regulations and took their case to the House of Lords.
The Revenue was concerned that Mr Jones — and thousands of others like him — had deliberately paid himself a low salary in order to pass a larger share of company profits to his wife.
Its lawyers contended in the House of Lords that Mr Jones, of Broomershill Lane, Pulborough, West Sussex, drew an “inadequate” salary from his company, Arctic Systems, which led to it having “excessive reserves”.
Those reserves were then used to pay “excess” dividends to Mrs Jones, who had a 50 per cent share in the company as its business manager.
This meant Mrs Jones was effectively sharing income with Mr Jones and he should therefore be assessed for tax on the entirety of his wife’s dividend income, it was argued.
The Professional Contractors Group, which funded the case for the couple, estimated that the case would cost the taxman £1 billion a year.
After today’s unanimous ruling by five law lords, Paula Tallon, a director at tax advisers Chiltern, said: “Family businesses will breathe a big sigh of relief this morning.
"This eminently sensible decision will provide certainty to family companies across the UK who are already out of pocket after this year’s Budget.”
"The ruling will also enable small companies and their advisers to complete their tax returns with confidence and manage their tax affairs in the most efficient way.”
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Jack (pseudonym?)...This couple HAVE paid tax already!!! Corporation Tax on the profits of their business! The so-called avoidance issue is simply a question of whether they should pay even more tax when taking their SELF-MADE and generated earnings out of their business! It is absolutely right and proper that entrepreneurs who take the risks should earn more than others, and the payment of additional tax threatens that potential (you can only take out what is prudently available within the cash element of a business, and if around 30% of this has to represent extra tax and NI then your earnings fall by this amount)..New legislation will no doubt change things, putting business owners, as you would no doubt feel is correct, on the same footing as other employees and on lower net household incomes making their efforts less well rewarded. Remember,business owners take all the risks and live the stress and red tape 24/7 in creating the employment (directly or indirectly) for others!
Steve, Southampton, UK
The Tax Credit is a complete shambles, I am a victim of Tax Credit Overpayments since 2003, they still haven't got it sorted out, even tho they say its there fault with the computer update.Been to my local MP and C.A.B for advice but still no joy, the Tax Credit Employees seem to be untouchable by all there mistakes, at that time I was on a low income and working for nothing at the end of the day.
Peter Lambert, Gateshead, Tyne And Wear
This was a clear case of tax avoidance in spirit but not according to the letter of the law; hence they got off. I have no sympathy with someone earning £91,000 per year saying they pay too much tax. If plumbers, teachers, nurses, policemen, our armed forces etc. pay tax I dont see why anyone else should be allowed preferential treatment. This tax avoidance loop-hole was only able to be exploited by a married person, i.e. he new the money he was giving to his wife would basically be spent in his household. So if your single with no trusting spouse you are unlikely to be able to do this. This one man band was not a genuine business, the company arrangment was purely used to reduce the tax bill of the individual. If someone poor did a one night stint in a pub bar while claiming benefit they would be called scroungers. Whats its called when someone on £91,000 per year rips off the government using tax loop-holes? PS. the new Flat Rate VAT scheme gives upto 16.5% to small business income.
Jack Sprat, Bristol, UK
It's a shame that an equally sympathetic approach is not taken towards victims of Tax Credit Overpayments, who seem generally to be a much more impoverished bunch than people paying themselves dividends from their businesses. These victims are often being hounded for repayment of thousands of pounds caused by errors made by HMRC, not because they have committed fraud or neglected to give required information to this incompetent department. It should be noted also that HMRC has received compensation for some of their errors to the tune of about £85 million from their software providers, yet still seeks to recover payments from innocent members of the public years after the event with no prior notification.
Auntieh, Hertfordshire, UK
Well done to those judges and to the couple that trialled the case!! As it is, small business corporation tax has moved from 10% to 18% to 22% in the last 3 years!!
Chantel, UK,
Many husband and wife small "Businesses" couples, with children, pay themselves a minimum reduce their tax burden and then claim maximum child tax credits.
Pete Dawson, London, UK
Certainly a great decision for the taxpayers in that category. It surely is not for the taxman to decide what is adequate salary nor is it the object of tax systems to limit the amount of reserves or earnings. Congratulations.
Enoch , Kampala, Uganda
"estimated that the case would cost the taxman £1 billion a year."
NO NO NO!
The case has cost the tax man £0.00 in "lost tax" - it has SAVED small businesses from EXTRA taxation of an estimated £1bn/year.
Ade, Wallasey, UK
I think it's a little specious to say that the estimated cost to HMRC of this decision is £1 billion.
The number of cases that HMRC currently has and has had in the past is certainly less than 1000, all told. At a maximum of £42k per case that's still a take of less than £42M.
Had the decision gone the other way, it's not clear how much the HMRC might have attempted to collect 'retrospectively' from all the other businesses like Arctic's. That indeed could have run to £1 billion, but is now, fortunately, academic.
In short HMRC may lose the tax they've already collected from those companies who 'caved in' out of the 1000, but that's unlikely to be a tiny fraction of the overall HMRC take.
It's certainly not a 'real' loss to the HMRC.
Steve, Nottingham, UK
A sensible a fair ruling, at last! Well done to Joneses for standing their ground against the vindictive and arbitrary ruling of the Revenue.
HMRC really is out of control these days. HMRC acts as little more than Gordon Brown's own bully boys. They regularly swoop on law-abiding taxpayers with outrageous and unsubstantiated tax demands- they seem to hope that many people will pay up rather than fight an expensive drawn-out battle in the courts.
It is time HMRC were made to follow the letter of the law rather than constantly "interpreting" the law to their own advantage.
Their is nothing wrong or immoral about seeking to reduce your tax bill- as a taxpayer you have a duty to yourself and your family to minimize your liability as far as legally possible. If you pay too much, well the government will only squander it.
David Rochester, Liverpool, UK