Clamp-down on Loan Schemes

There are a number of tax saving schemes marketed to freelancers and contractors, but these schemes can be sensitive to changes in the tax law. One such scheme that involves loans made though particular trusts (known as EBTs) has recently been taken off the market by various suppliers.

Under the EBT scheme the freelancer becomes an employee of the company in the scheme but receives only a small wage, which is subject to tax in the normal way. All his other income is provided as a loan through an EBT. The freelancer pays no tax or NI on the loan capital, but he is charged tax on the deemed interest on the loan, (i.e. on 4% of the value of the loan). The scheme assumes the loan will remain outstanding forever, so the capital value of the loan (which increases with each payment) is never taxed.

However, new tax legislation has been proposed that will apply a tax charge to loans provided under such schemes from 9 December 2010. The employer will be responsible for paying the tax due, as if the loan was regular salary. The tax and NI savings are thus eliminated.

This new tax legislation does not prevent shareholder/ directors taking loans directly from their own companies, or employees receiving season ticket loans from their employers. In both these cases the loan is not provided through a third entity such as an EBT, so it is not taxed as regular salary. However, tax charges can apply to both the company and the director when a director borrows from their own company.

Withdrawal of CIS Gross Payment Status

Every month the Taxman's computer reviews the tax records for a number of contractors in the Construction Industry Scheme (CIS) who qualify for gross payment status. This means that tax does not have to be deducted from payments made by customers. Every contractor's tax record should be reviewed about once a year, but it is not possible to predict exactly when any particular firm will be reviewed.

If the tax compliance record is regarded as unsatisfactory, taking into account the acceptable minor breaches, the computer automatically issues a letter to the contractor informing them that their gross payment status will be withdrawn in 90 days. This is serious stuff as the withdrawal of gross payment status can mean the loss of large contracts, as well as cash-flow difficulties.

If you have recently had problems paying your tax on time, you may have agreed a time to pay arrangement with the Tax Office. Where the tax payments are made as per the agreed schedule, the Taxman should not issue penalties for late paid tax. Unfortunately the computer that performs the CIS review of tax records knows nothing about your time to pay arrangement, so any late payment of tax within the review period is marked as a failure. This can cause a notice of withdrawal of gross payment status.

You need to appeal in writing against that notice within 30 days of it being issued. Include in your appeal the following details:

- the date you or your firm requested time to pay from the Tax Office;
- which tax debts are included in the arrangement; and
- the agreed payment amounts and dates.

Your gross payment status should be restored if there are no other late tax payments or late tax forms delivered in the review period.

Q. My brother and sister in law each lent my company £10,000 some years ago. The company is still trading, but it is unlikely to ever be able to repay

A. Lenders in this position can sometimes treat the irrecoverable loan as a capital loss, which can be set against capital gains, but not against income. However, the Taxman will only grant this tax relief if the loan really is irrecoverable. This is taken as read where the business has gone broke. While the company is still trading there is a possibility that the money could be repaid, even if the amounts have been written off in the company accounts. The Taxman will need some considerable evidence from the company's bankers and other sources, such as Court judgements, to be convinced that the loans cannot be repaid by a trading company.