The extent to which activities of a worker amount to a presence in the UK can have significant tax implications. It is a concern for overseas businesses establishing a UK presence in the assessment of exposure to tax.
Any business incorporated in the UK is liable to UK corporation tax. As a simple anti-avoidance measure, it is not possible to avoid taxation by simply registering an entity in a low tax jurisdiction. Where the “central management and control” is operated through the UK, company profits are taxed in the UK regardless of where the entity is incorporated. The residency status of its directors is the first test to establish the whereabouts of control.
A company which is UK resident is liable to tax on worldwide profits. A foreign tax credit is typically available to prevent a company from being taxed on the same profits in two tax territories.
An overseas company can have a “permanent establishment” in the UK (such as UK sales office or sales representative.) An entity which has a permanent establishment (PE) would be subject to UK tax on the profits attributable to the PE only.
The existence of a PE is typically determined by the ability of the UK representatives to conclude contracts on behalf of the company. Where the UK worker is required to refer back to overseas office for decision making then any UK presence is unlikely to amount to a PE.
For practical purposes, a UK subsidiary company or LLP is formed once a Permanent establishment has become apparent.
Employed or self-employed
Contract terms such as paid leave, notice and redundancy pay are peculiar to employment. The provision of own equipment, own premises and the ability to arrange a substitute are characteristic of self-employment.
Coman & Co cannot provide an opinion about the extent to which a person can be regarded as self-employed. The determinants of self-employment, have been established though various case laws.
A worker who is self-employed would be responsible for their own taxes. The determinants of UK residency for the purpose of establishing liability to UK tax have by contrast been enacted.
Liability to UK PAYE
Following from the above, a worker who is employed can either be subject to the tax regime of the host country or to that of the UK.
A requirement to operate UK PAYE arises where the UK operations give rise to an ‘economic employer.’ UK payroll will be run for an employee whose work gives economic benefit to the UK branch or function of the business. By extension, if the fruits of the worker’s labour are enjoyed by a foreign entity then UK PAYE is not needed.
The rules on what determines a PE, or an economic employer are lengthy and complex and for the sake of brevity have not been summarised here. Each case should be considered on its own merits.
The following checklist is a rough form of the UK tax position for foreign business:
A worker who is not UK resident will probably not cause any liability to UK tax. The residency of a person is measured mainly by physical presence.
A UK worker who is self-employed is responsible for reporting their own tax liability to HMRC. A self-employed person is generally principal rather than agent. This means that the person profits from their own decision making.
By contrast, a UK resident who concludes contracts on behalf of the foreign business, creates for that entity a liability to UK corporation tax.
A worker who is employed but whose work does not bring any benefit to the UK economy can remain on foreign payroll.
UK PAYE has to be operated for employees whose work brings benefit to the UK.
Length of stay is often a key indicator as to whether an economic employer has arisen. HMRC have indicated that an employee resident for less than 60 days will not generally be regarded to have had the time to generate enough benefit to the UK required to gain status as a UK employee.
IR35 describes a press release made by the former Inland Revenue in 1999. It has since been superseded by Intermediaries Legislation and is therefore something of an anachronism. It is nonetheless still used in ordinary parlance to refer to the regulation which aims to tax as an employee any person who operates through a company, and would be an employee ‘but for’ that company.
Despite numerous requests over the years, Coman & Co are not able to give an opinion as to whether an individual can be employed or self-employed. It is outside the scope of a tax adviser to examine the nature and scope of a working arrangement, attempt to apply the many case laws and conclude as to that person’s status.
It is the individual worker and personnel function of their paymaster who are best placed to estimate whether work is more in the nature of employment or of self-employment.
Steps can be taken to assure that the decision to work as self-employed does not fall foul of the regulation. As a minimum, entitlement to paid leave and other benefits peculiar to employment should not be stipulated.
On the one hand, it is not straightforward or economical for any third party to conclusively evidence that a contractor should be taxed as an employee. For reasons of workability, HMRC rely primarily on documentation in their enquiry. By contrast, many of the determinants of self-employment are based on behaviour and working relationships which are not necessarily documented.
On the other hand, an account extracted from bank statements alone could be sufficient to draw a steady case: where pay is fixed and regular and outgoings do not show evidence of the hiring of assistance, own equipment, premises (even within the home) and other outlays typically covered by the employer.
There are plenty of guides on the HMRC website which give practical examples of what is considered to be inside or outside the scope of the Intermediary Legislation. Based on those examples, retain documentation to substantiate a claim of self-employment in the event of any HMRC enquiry.
Notwithstanding, consider that there can be little or no tax benefits of being a contractor rather than an employee. The main reason is that dividends taken out of the company would be subject to tax at 32.5% to the extent that the dividend takes the taxpayer into higher rates. There are benefits of being an employee, such as notice, redundancy pay, paid holiday, statutory leave, perks and networking invitations.
One of the main implications of being a contractor is that the paymaster will not be subject to employer’s national insurance at a rate of 13.8%. Depending on pay, this could amount to considerable saving for the other party. Contractors are invited to consider this a negotiating point in establishing the conditions of work.
Following a consultation, the government has announced a tax relief for goodwill acquired on or after 1 April 2019. The tax relief will only apply where goodwill is acquired alongside intellectual property.
An abolition of tax relief on the purchase of goodwill was announced in the Summer 2015 Budget, and applied to purchases on or after 8 July 2015.
The restriction on tax deduction for goodwill was intended to deter the transfer of a business as asset sale - rather than a share sale - purely for the purpose of tax avoidance. However, it was recognised as common practice for business transactions to be structured as sale of trade and assets for predominantly commercial reasons. By example, the purchase of shares often requires the acquirer to take warranties and indemnities against liabilities acquired with the business. Following a consultation, the deduction from corporation tax profits was reintroduced by the Finance Act 2019.
Goodwill is the premium that is paid for a business over the value of its assets. The net assets of the business is determined by reference to its balance sheet. In crude form, the carrying value of liabilities to tax, directors and trade creditor is deducted from current assets, such as equipment, stock, debtors and cash at bank in arriving at net assets. The consideration offered for the purchase of a business surplus to its net assets is referred to as goodwill. For the purposes of the FA19 regulation, HMRC refer to “relevant assets” a term which holds the same broad meaning as goodwill.
The process by which the value of an intangible asset erodes over time is known as amortisation. Amortisation is to intangible assets what depreciation is to tangible assets. Corporation tax relief on goodwill is a tax form of amortisation.
Conditions for the vendor
The goodwill has to be acquired:
With a business
Which has intellectual property (IP.)
A related party incorporation is excluded from the relief. Therefore, a sole trader or partnership incorporating into a company cannot obtain tax relief for goodwill generated in the unincorporated business.
No tax relief is given for goodwill held by the company prior to 1 April 2019. Anti-avoidance provisions apply to restrict the re-establishment (after 1 April 2019) of IP previously held.
IP has a restricted meaning for the purpose of this form of tax relief. The intangible assets must be fixed, i.e. with a useful life that will continue in the hands of the new owner. The acquiring company must intend to use the IP.
Under FA2019, intellectual property includes patents, copyrights, design rights, or licenses over the rights.
Goodwill can be created by other means such as:
Unregistered trademarks; and
However, none of the above are considered as intellectual property by the tax system.
Given that goodwill in the accounting sense is defined by the price paid for a business, it could be regarded as unfair that the FA2019 has imposed seemingly arbitrary definitions. In practice, however, a business typically has a value independent of its owner because of some form of IP. For instance, a vendor of a software or pharmaceutical would probably wish to obtain patent protection before taking the product to market.
A business with tax deductible “relevant assets” will be more valuable to a prospective UK purchaser. Therefore, practical tips to create goodwill in a business include as a first step:
Publish the website and other business literature. A copyright is generated on creation of works. Registration of works provides extra protection.
Register trademarks, such as business logo.
Patent business ideas. Computer programs and other business process innovations obtain certain copyright protection regardless of patenting.
Obtain design rights. This could include: textile, wallpaper, furniture and graphic design elements of a trademark.
As a secondary measure:
Obtain an independent valuation for the above that can be relied upon in the event of an HMRC enquiry.
Recognise the value on the balance sheet prior to sale.
The amount paid for goodwill provides strong supporting evidence to any such valuation.
A license to the use a computer software is not regarded as IP, whereas a licence to distribute the software is tax deductible.
Conditions for the acquirer
The rules relating to the Finance Act 2019 concern corporation tax, and therefore the acquiring business must usually be a company. The acquired goodwill needs to be stated in the balance sheet.
The tax relief
A portion of the original cost is deducted each year from profits chargeable to corporation tax. The relief is at a fixed rate of 6.5% of per annum. The 6.5% is applied straight line (to original cost) rather than to the reducing balance of the goodwill value.
The rate is higher than the 4% write down that applied on goodwill purchased prior to 3 December 2014.
The goodwill on which tax relief can be obtained is capped at the fair value of the IP, multiplied by six. The whole value of the goodwill is used if the value is less than six times the IP.
From April 2017, any other benefit will be taxed at the higher of the salary foregone and the amount assessed under the benefit in kind rules.
Childcare vouchers are no longer available since October 2018 and have been replaced by a childcare fund. A childcare fund is arranged directly with gov.uk and not via private arrangement with the employer.
Auto-enrolment is basically the requirement to pay a pension as a fixed percentage of salary. It is possible to opt out. For a company with no employees and only directors, opting out increases flexibility. Pension payments can be paid at any time and in any amounts. The payments are typically paid as employer contributions to save national insurance. The arrangement is effectively a salary sacrifice, although directors rarely formalise an agreement with themselves to pay any salary. The salary arrangements are also kept flexible.
Parties to an employment contract have reason to favour the auto-enrolment scheme over other pension arrangements. The pension is fixed through the UK and enforced by the Pension Regulator. Notwithstanding, a salary sacrifice arrangement can save both employer and employee from national insurance. An employee pension contribution is not deducted from pay subject to national insurance. If restructured as an employer contribution, a saving can be achieved.
Where an employee has auto-enrolled, the regulation imposes upon the employer to pay the minimum fixed percentage of pension by reference to earnings. Reducing earnings would therefore have limited impact on the statutory pension payable.
An employer cannot compel an employee to sacrifice salary; however, an employee can oblige an employer to make pension contributions.
A pension requirement is only applied to income between the lower limit and the upper limit of earnings. For 2019-20, those limits are £6,136 and £50,000. The statutory rates are 5% employee contribution and 3% employer contribution.
If an employee earns between the earnings threshold and upper limit (between about £8,628 and £50,000 for 2019-20) the employee's national insurance saving is 12% and employer’s is 13.8%.
Let us say the employee has a salary of £46,136. Pensionable pay is therefore £40,000. The employee's pension contribution would be 5%, or £2,000. The employee saving is £240 and the employer saving is £276. A combined yearly saving of £476.
Additional voluntary contributions
In 2019-20, the upper earnings limit (for national insurance) is aligned with the upper level of qualifying earnings (for pension.) The upper limit is £50,000.
Once the upper level of qualifying earnings has been exceeded, pension contributions thereafter are made voluntarily by the employee or as under the contract agreement. Therefore, employees with a salary over £50,000 are still only required by the regulation to pay the amount that applies to a £50,000 salary.
Employee contribution rates fall to 2% on earnings above the upper earnings limit, whereas employer contributions are fixed at 13.8%. Once income exceeds £50,000, a lower rate of saving from salary sacrifice would apply. Nevertheless, the saving in nominal terms is higher.
In another example the employee has a salary of £66,136. Pensionable pay is therefore £60,000. Picking an arbitrary amount, the total pension -both fixed percentage and Additional Voluntary Contributions (AVCs) - is £10,000. The employee saving is £200 and the employer saving is £1,380. A combined yearly saving of £1,580. The employee savings is slightly lower than the earlier example.
Employees paid monthly are assessed to national insurance using one twelfth of the annual allowance. An opportunity to save further national insurance could be achieved by sacrificing pay unevenly through the year.
A reduced salary would usually require a rewording of employment contracts. A separate salary sacrifice contract is usually drawn on an addendum. Employee contributions are typically deducted from gross pay shown on a payslip. Increased pension contributions agreed via salary sacrifice are usually therefore made solely as employer contribution.
Salary sacrifice tends to be better suited to:
More senior staff in which the employment relationship depends less on statutory entitlement.
Higher income staff in which the NI savings in absolute terms are greater.
Employees closer to retirement who can access the pension pot sooner.
Reducing pay through salary sacrifice could:
Result in lower statutory maternity pay;
Breach minimum wage requirements; and
Lessen income which is assessed for mortgage purposes.
It is possible to have two employment pension plans. The one a workplace pension that fits the auto-enrolment regulation and the other a more flexible plan to suit the salary sacrifice arrangement.
Net pay arrangement vs relief at source
Different pension operators provide plans to collect pension in one of two ways. In this illustration, a staff member has other income equal to the personal allowance. All pay is therefore taxed at 20%. Gross pay is £31,136. Pensionable pay is £25,000.
Relief at source
Net pay arrangement
Taxable and pensionable pay
Tax @ 20%
Pension @ 5%
Pension @ 4%
Tax @ 20%
Take home pay
Take home pay
Direct from HMRC
Direct from HMRC
Receive in tax
Receive in tax
Pay in pension
Pay in pension
The NiCable pay is the same figure of £25,000 in the above two examples. Furthering the example to a salary sacrifice scheme the NICable pay would be £23,750.
Business premises costs are generally tax-deductible expense. By extension, the cost of using a home for work purposes could be deducted from taxable profits. The tax deduction depends on the extent to which the property is used for a business or employment purpose.
Home working is a growing global trend, reducing commuting costs and enabling more flexible, family friendly living arrangements. Deductible expenses are characteristically lower for an employee than for a sole trader. From 6 April 2020, an employee can deduct a fixed weekly amount of £6 per week from taxable earnings. Prior to 2020/21, the weekly rate was £4. If this is HMRC rate is lower than actual costs, a percentage of household costs can be used to establish the reduction in taxable income. If the fixed rate is not used, it will be necessary to keep proof of expenditure. Further information on how to calculate use of home with the actual basis is explained below.
From 2013-14, HMRC have introduced a system of simplified expenses. This allows a taxpayer to use a flat rate to determine tax deductible expenses. As the table below demonstrates the flat rates are well below the typical cost of running a premises especially, for instance, in London.
Working from home
Notwithstanding, the regulation reduces the onus of record keeping because it is only necessary to demonstrate time spent working from home. The flat rate relieves the taxpayer from evidencing the cost of working from home. The rate is best suited where the benefit of reduced paperwork outweighs the cost of more detailed calculation.
The simplified expenses only apply where the hours worked from home exceed 25 per month. They are used by self employed individuals.
Hours per month used for work
Monthly flat rate
25 to 50
51 to 100
Living in the office or hotel
For an individual living on the business property, it is possible to use an HMRC flat rate to ‘write-back’ the expenses related to personal use. In that case, all property costs are deducted from taxable profits, and a fixed amount is added back to profits. This fixed amount is to cover household items, food, drink and utilities bought in the business name but consumed privately.
The above flat rates could be especially useful to pub owners and landlords of a small hotel or bed and breakfast.
The adjustment back to profit is as follows:
Number of occupants
Monthly addition to profit
Three or more
The flat rate above does not include rent, mortgage interest, council tax, business rates or building insurance. The personal use element of those expenses will need to be added to taxable profit in addition to the flat rate.
If the saving in time and hassle does not outweigh the cost, a greater tax benefit could be achieved by deducting a proportion of actual costs as explained below.
A reasonable basis of apportionment for household costs is the floor area used for work as a proportion of the total floor area of the home. The whole floor space applies to areas with exclusive use; storage rooms and studies. Part floor area is sensible for mixed use areas such as passages.
The business share of total household costs can be further reduced according to time in which the home is not used for work. The applicable percentage is the amount of time spent working at home as a proportion of the total amount of time spent at home.
Certain costs depend on actual usage. These include light and heat, metered water, repair and cleaning costs. Typically, the costs of lighting and heating the workspace is about the same as for any other space in the home. In this case, an apportionment based on floor area and or time spent is reasonable. However, where the work involves above average consumption, for instance owing to the use of heavy machinery, it would be more reasonable to use incremental cost. The business expenditure in that case is the additional light and heat expended as a result of working from home.
Home telephone and internet costs can usually be deducted based on actual usage. However, where costs are fixed, time spent is likely the most realistic basis of allocation.
The cost of any hospitality is treated as entertaining and is therefore not tax deductible.
Certain costs are sunk. Expenditure which remains constant regardless of the extent to which the property is used for business purposes. Examples include: council tax, water rates, buildings insurance, mortgage (interest element only) or rent.
Where the area is used exclusively for business purposes, HMRC have indicated that it is acceptable to make a deduction from profits based on floor area. It is not necessary to make a further deduction for time spent. The reasoning is that any time spent in the dedicated area is committed to work. This will however have capital gains tax implications. There could be a tax benefit to making an adjustment based on time spent, howsoever minor.
Where the same space is used for business and non-business use: tax deductible costs are found by applying the percentage floor area multiplied by the percentage time spent working.
Coman & Co has put together a rough guide of percentages to apply in typical situations:
Small studio flat which doubles up as a workspace. The is little or no work done on client premises
Purpose built shed, separate room or distinct workspace, and work almost exclusively from home
Work part week from home
Occasional an incidental usage only
The table above is the considered opinion of a chartered tax adviser. It does not carry the force of law.
Building costs of a dedicated workspace
Unused space in the home; a garage, loft, attic or shed can be converted into a purpose-built workspace. Works can be divided into the following classifications for tax purposes:
Structural aspects including stud work, permanent walls, doors, staircases and floors. These costs of are not deducted from taxable profits, but are added to the total cost on calculation of any gain or loss on disposal of the work space.
Integral features such as glazing, office furniture, fixtures, movable walls, the central heating system, cold water and electricity system, lights and computer equipment. Using the annual investment allowance, the integral features can be deducted from taxable profits in the same year as the cost for these items is incurred. For reporting purposes, integral features are included in the fixed assets register which is a constituent of the balance sheet, and not as an item of profit and loss.
Day to day expenditure such as cosmetic decoration, atmospheric wall-hangings and maintenance. Further information about can be found in the review of repair costs.
Certain labour and material costs are related to the build project overall and not directly attributable to the above three categories. The percentage of the whole project spent respectively on the structural, the integral features and the maintenance costs could be used as basis of apportioning unattributable costs.
Capital gains tax
A property is usually exempt from capital gains tax if it is the owner’s home or principal private residence. Any part of the home which is used exclusive for work purposes, would not be exempt from capital gains tax. This could be unavoidable for workspaces which have a separate front door and address, such as a converted barn. However, in most cases it would be prudent to establish some non-business use, so as to preserve what can be a valuable tax exemption. To give an example, proof of non-work use of a computer could negate the exclusivity of the workspace for business purposes.
Where capital gains tax does apply, the rate would not be that applicable to residential property. Gains on disposal of business premises are taxed at a lower rate than gains on disposal of residential property. It is likely that the annual exemption would further reduce any taxable gains, more so where the property is co-owned.
While the home remains the property of the business owner, a tax benefit could be obtained by placing the newly built office area in the name of the company. This is because in certain instances, if the property is sold back to the homeowner at the same time that the business ceases or is sold, then the gain will be eligible for entrepreneur’s relief. It is a requirement for the company to have paid a full market rate for the disposal to attract entrepreneur’s relief. The Vat section below explains how VAT can be recovered on features integral to a building.
The rules about claiming use of home as an office are more restrictive for an employee than for a sole trader.
HMRC have explained that mortgage interest, rent, council tax, water rates and building insurance cannot be deducted from the calculation of use of home as office for an employee. Only gas, metered water, telephone bills and the other additional costs of working from home are tax deductible.
The work carried out must be “substantive duties” i.e. the main or substantial part of the job. This would contrast with incidental duties, such as preparing weekly expense claims; or
The equipment or facilities required to carry out the job cannot be available on the employer premises; or
The employee lives too far away to travel to work every day.
Tax relief is only available for working from home which is required under an employment contract, and not where it is made as a choice.
In certain cases, an employer will agree to reimburse an employee for the additional cost of working from home.
A payment will not be treated as a taxable benefit for the employee provided it is:
£18 a month or
If higher, no more than the actual costs of working from home.
It is not required for an employee to be obliged to work from home in order for the payment to be a non-taxable benefit. A company can obtain tax relief for reimbursing employees who choose to work from home. By contrast, the employee can only obtain tax relief on the cost of working from home where it is compulsory.
Directors and service companies
HMRC have specifically stated their view that directors of service company will often not carry out ‘substantive’ duties from home. That view would apply because, for instance, the director basically works on client premises. In that case, a director cannot deduct the cost of working from home. Where a substantial part of the work is carried out a home, such as in the case of a software developer, a deduction can be made for working from home.
Receiving rent from the company
Given that only the variable costs can be deducted for costs reimbursed by a director, the regulations put company owners at a disadvantage to other business owners. This is because sole traders, partners or members of an LLP can deduct a portion of fixed costs.
A workaround is to charge the company rent for using the home. Payments of rent can be deducted from profits chargeable to corporation tax. The income in the hands of the landlord can be reduced by the proportion of both fixed and variable costs. There is no restriction on the deduction of mortgage interest for owners of business premises.
Business owners could contemplate a license agreement for their company to use the space. However, there is no requirement in the tax regulation for a license agreement and therefore this agreement itself would not guarantee any particular tax treatment. It is only necessary that the space is used for business purposes to obtain a deduction from profits chargeable to corporation tax.
Where it forms part of a home, it would seldom be advisable to opt to tax the commercial premises. While Vat can be reclaimed on the building cost, it would require VAT to be added to part of the sale proceeds. If the property is effectively being sold as a residential unit in its entirely, VAT would be an odd and unwelcome feature of the selling prospectus. Nonetheless, VAT could be reclaimed on office equipment, supplies and integral features for VAT registered owners.
Sole traders and partners should consider the merits of claiming a proportion of actual costs given the modest flat rate offered by HMRC.
Where home working expenses are incidental, a director can deduct a portion of light and heat to keep matters simple. However, where the homeworking costs are more significant, the company owner should consider charging rent to obtain tax relief on a more substantial portion of the costs.
A purpose-built workspace could be owned by the company to obtain certain VAT and even capital gains tax advantages.
Your initial meeting at our office will be free of charge.
Weekdays 9am to 5.30pm Saturdays 10am to 1pm.
There is free parking outside the office. We are located close to Lordship Lane (accessed via the South Circular at the south end and via Denmark Hill at the north end.) Heading north take the right exit off Lordship Lane to North Cross Road and carry straight on to Upland Road
The office is served by Bus routes 40, 176, 185 and P13 along Lordship Lane. Stop at North Cross Road. Bus routes, 363, 63 and N63 to Peckham Rye. Stop at Barry Road. Bus routes 12 and 197 to Barry Road. Stop at Upland Road. Bus route 37 via Lordship Lane is close. Many of the buses above go via Elephant and Castle, Northern Line exit.
Nearest Train station is East Dulwich, Zone 2. The trains take 12 minutes to reach London Bridge and run about once every 15 minutes. Peckham Rye is close.
The East London Line to Forest Hill ia a short bus ride away.
The office is 4.8 miles to Trafalgar Square. Roughly 1 hour 30 minutes at a medium pace walk.