Are Cruise Ship Entertainers Employees?
If they weren’t on cruise ships HMRC would probably argue that they were employees but in the case of cruise ships they argue the opposite.
Pete Matthews (1) Keith Sidwick (2) v Revenue & Customs [2011] UKFTT 24 (TC)
Mr Sidwick was a musician and played piano on a series of cruise ships. Mr Matthews was a juggler, similarly entertaining passengers on cruise ships. Both were subject to a close degree of control by the ships officers but the First-tier Tribunal found that this degree of control was required by the context of a cruise ship.
The First-tier Tribunal concluded that the entertainers were not employees ‘…but earn their living by entering into a series of separate engagements with a number of different cruise lines in a similar way to actors…’
The reason why HMRC argued against employment was to stop a claim for Seafarers Earnings Deductions.
To get the deduction you must:
- work on a ship. Oil rigs and other offshore installations aren’t ships for the purposes of Seafarers’ Earnings Deduction – but cargo vessels, tankers, cruise liners and passenger vessels are
- work all or part of the time outside the UK. This means that for each employment you must carry out duties on at least one voyage per year that begins or ends at a foreign port
- be resident in the UK or resident for tax purposes in a European Economic Area (EEA) State (other than the UK) – find out more by following the link ‘Check your residence status’ in the section below
You get the deduction from your earnings as a seafarer if you have an ‘eligible period’ of at least 365 days that consists mainly of days when you are absent from the UK.
From 6 April 2013 the rules that determine if someone is resident in the UK for tax purposes have been put on a statutory basis. These rules are known as the Statutory Residence Test (SRT).
steve@bicknells.net
Radio Gaga!
Last week I was given the opportunity to be part of the Packed Lunch radio programme on Glastonbury FM.
I had not previously thought about talking on the radio. But when Alan Philpott proposed the idea it appealed to me, because it gave me the chance to talk about how business owners in the local area could tackle some of their issues.
Fortunately, the programme was prerecorded so it was not too scary. I knew if I made a complete hash of it we could just start again – just as well!!
We recorded 3 15 minute slots to go out in future programmes and these first slots covered how confidence effects business performance, the benefits of business planning, and how to price effectively. Hopefully, I will have the opportunity to cover further subjects later in the year.
I have no idea whether anyone will listen but I gained from having taken part.
Doing this type of exercise reminds us that we really do know a substantial amount about our subject – which in turn makes it easier for us to be confident when talking to prospective clients. For me, it also enabled me to give some practical tips to business owners I would not otherwise reach.
So if you have the opportunity to take part in a radio programme I would definitely recommend it.
Fiona 🙂
Why Doctors should use Salary Sacrifice for CPE
Doctors often agree to pay for their own continuing training personally because of a shortage of NHS funds but when they do pay for courses its unlikely they will be able to claim tax relief.
EIM32530 states that it is well established that employees are not entitled to an expenses deduction under Section 336 ITEPA 2003 for the expenses continuing professional education (CPE). The Commissioners and the Courts have traditionally held that the duties of trainee doctors, for the purpose of the expenses rule, are limited to the clinical work that they do for the NHS Trust by whom they are employed. Their training activities are not undertaken “in the performance of” those duties for the purpose of Section 336 . That is so even though the training activities may be compulsory, and failure to complete them may lead to the employee losing his or her professional qualifications, and/or their job.
The Commissioners and the Courts upheld that view in a number of cases, as follows:
Parikh v Sleeman (63TC75) – a hospital doctor was refused relief for the expenses of attending training courses during periods of study leave.
Snowdon v Charnock (SpC282) – a specialist registrar was refused relief for the expenses of undergoing mandatory personal psychotherapy.
Consultant Psychiatrist v CIR (SpC557) – an NHS consultant was refused relief for the expenses of CPE necessary to maintain her professional qualification.
Decadt v CRC (TL3792) – a specialist registrar was refused relief for the expenses of taking professional examinations, even though it was a condition of his employment that he should do so.
In the recent case of Revenue & Customs Commissioners v Dr Piu Banerjee ([2010] EWCA Civ. 843), the Court of Appeal accepted that a deduction for training costs incurred by an employee should be allowed if the employee was employed on a training contract where training was an intrinsic contractual duty of the employment (see also EIM32535 & EIM32546) and where any personal benefit, unlike most CPE courses, would be incidental and not therefore give rise to a dual purpose of the expenditure.
Salary Sacrifice solves this problem.
Salary sacrifice works particularly well for training because except in the most extreme cases, employees cannot claim a tax deduction for training costs that they pay personally but if the employer pays for training that is work-related:
- the employer gets the tax deduction
- the employee is not taxed on the cost and
- there is no National Insurance to pay.
EIM01210 confirms this.
steve@bicknells.net
Have you paid too much National Insurance?
Unlike Income Tax which is cumulative and assessed across all earnings, National Insurance starts from zero on each individual employment and you also pay National Insurance on Self Employed earnings.
So if you are a Director of multiple businesses paid as an employee its easy to see how you could over pay and you might not even realise because National Insurance is not shown on your Self Assessment Return.
You can also over pay National Insurance if you are a part time employee with multiple employers and irratic earnings, this because National Insurance is calculated on a weekly/monthly basis, not a cumulative basis and its by employer.
What you need to do
Write to HM Revenue and Customs confirming:
- your National Insurance number
- why you’ve overpaid
- the tax year(s) you’ve overpaid
You should include your P60 or a statement from your employer showing the tax and National Insurance for each year you’re claiming for.
You should apply within 6 years of the tax year you’re claiming for.
HM Revenue and Customs
Payment Reconciliation
National Insurance Contributions Office
Benton Park View
Newcastle upon Tyne
NE98 1ZZ
steve@bicknells.net
Can you recover VAT on Business Acquisition Costs?
Basically HMRC disallow Input VAT relating to Investments.
The most well known example of this was when BAA purchased Airport Development Investments Limited in June 2006, the decision was upheld by the Court of Appeal in February 2013.
The BAA VAT group sought to recover the VAT (£6.7m) incurred on the acquisition costs but recovery was refused by HMRC on the basis that they considered ADIL had not made onward taxable supplies, had not demonstrated any intention to make taxable supplies and was not a member of the VAT group at the time costs were incurred.
BAA used an SPV (Ferrovial) to purchase ADIL but did not bring the SPV into the BAA VAT Group until September 2006, 3 months after the acquisition.
The lessons to learn from this are:
- Once you have successfully made the acquisition join a VAT Group immediately and make it clear in correspondence that the SPV intends to join the VAT Group at the earliest opportunity
- Consider not using an SPV
- Buy the Assets instead of the Shares
- Show that the SPV will make taxable management charges
- Consider the scope of the advisors work, HMRC may disallow advice focussed on passively holding shares
steve@bicknells.net
Where should you pay tax? (Statutory Residence Test)
Historically some of the key cases related to Pilots.
Shepherd v Revenue and Customs Commissioners [2007] BTC 426, [2006] EWHC 1512 (Ch)
A BA pilot had a home in Cyprus and spent 80 days in the UK (well below the 183 day test) in 1999/2000. However, he had ties to his former matrimonial home in Berkshire and the UK was his base for international flights, HMRC won the case on the basis that he had not ‘left the UK’.
Grace v Revenue & Customs [2008] Spc 663
Mr Grace was also a BA pilot, he claimed to have relocated to South Africa. Mr Grace won his case because he was set out the facts in a way that convincingly showed his links to his new country of residence. Although subsequently the outcome was reversed.
Robert Gaines-Cooper was a Multi Millionaire, based in the Seychelles but subject to the UK tax because of family ties
These cases demonstrate the problems of deciding residency, so on the 6th April 2013 a new Statutory Residence Test was introduced.
This test is relevent not only to Aircrew but also to:
- Ships Crew
- Lorry Drivers
- Coach Drivers
- Sales People
- Travel Industry
UK ties are likely to be a key issue:
- Family Tie – Relevent relationships include Spouse, Child under 18, Common Law partner resident in the UK. However, Children in Full Time education are ok provided they don’t spend more than 21 days in the UK outside of term time.
- Accomodation Tie – A property in the UK where they can live for 91 days a year or 16 days if its owned by a close relative.
- Work Tie – Work in the UK for at least 3 hours a day for 40 days a year
- 90 Day Tie – Spend more that 90 days in the UK in this tax year or the previous tax year or the year before that
- Country Tie – the midnight test for the greatest number of days
On the positive side at least HMRC have been very specific in their guidance, these are are very specific tests!
steve@bicknells.net
Billy No Mates Christmas Bash 2014
I am just in the process of organising the Billy No Mates Christmas Bash for 2014.
As usual it is on the last Friday before Christmas – this year 19th December – at Beah, Union Street, Wells, Somerset. It starts at 12pm, for sit down at 12.30pm, and usually goes on well into the afternoon.
If you have been before you will know it is the office Christmas party for those of us who work on their own – or just with one other. It’s a wonderful opportunity for a pre-Christmas hair let down with like-minded business owners over a glass of wine, a superb meal and a couple of party poppers!
If you haven’t been before – why ever not?
All the details – including the menu – are on the www.billynomates.info website, just click on Wells Christmas Bash.
If you don’t live in Somerset but fancy the idea of having your own Billy No Mates bash the website also gives you some tips on how to do so. If you want us to include it on our site it all you have to do is send the details and menu to fiona@fionabevanfinancialmanagement.co.uk and we will upload it.
Musicians tax breaks
Will Scottish entertainers make more money with proposed musicians tax breaks?
One of the consequences of the Scottish Independence Referendum is a “Command Paper” to be produced by Lord Smith of Kelvin and the Scottish Devolution Commission. Among the proposals being put to the commission is copying an idea from Ireland to give artists and musicians tax breaks.
Special treatment for artists
The Republic of Ireland has given artists a tax exemption since 1969 which means the profits from the sale of works do not attract income tax up to a maximum of €40,000, or £31,500. Everyone agrees that the tax system should be simplified – except of course if it the complication benefits you. Is this a valid sign of support for artists or will everyone want “special treatment”?
Alterledger can help
Why wait for the law to favour your industry? Contact Alterledger or visit the website alterledger.com to see if you can organise yourself better and claim more expenses to cut your tax bill.
If I change my business activity what happens to my tax losses?
Let’s say your current business has been having a tough time and you want to change it to something new, can you carry forward the trading losses.
Probably not look at this example from BIM85050
For example, a publican who had owned a pub in Leeds for many years sold it and bought another in York. Although in the everyday sense the trader remains a publican throughout, the York pub is not the same trade as the Leeds pub.
Tax law requires any losses (including Corporation Tax Losses) carried forward to be offset against future trading profits from the same trade.
One solution to this may be Group Relief, companies which are part of the same Group can surrender losses within the Group.
The rules about which trading losses and other amounts may be surrendered are described at CTM80110. The company that transfers the losses, etc, is called the ‘surrendering company’. The company that claims the losses, etc, is called the ‘claimant company’.
Trading losses, excess capital allowances and non-trading deficits on loan relationships may be surrendered in full. This is irrespective of whether the surrendering company has other profits against which the loss etc might have been, but has not been, set off.
Alternatively it may be possible for the loss making business to sell services to the new business and in doing so reduce its loss.
steve@bicknells.net
How to Get Paid – Part 1!
I often come across service providers who are finding it difficult to get paid. This got me thinking about the psychology of payment.
There are clearly two sides to this particular coin – us and the client. We can be as much, or more, to blame as our customers for not getting paid, because of the way we think and act.
Firstly, as Brits we are sometimes embarrassed to talk to clients about fees and payment. Some business owners hide behind hourly rates, which means there is no upfront agreement about exactly what the client will be expected to pay. This means it is highly likely there will be disagreement and therefore delay in payment. Not only that, but disagreement about fees can leave a bad taste in everyone’s mouth.
Secondly, many service providers are slow to invoice, which means clients receive bills quite a long time after they have had the service. This sends a message to the client that the supplier is probably pretty well off and so doesn’t need the cash quickly (or the invoice would have been sent more promptly). Consequently it is more likely that payment will need to be chased.
Other suppliers do not make it clear what their payment terms are. Now, it is in clients interests to delay payment as long as they can (especially at the moment when many businesses are finding cash flow difficult) so if you are not clear on payment terms you cannot be surprised when payments don’t come through. Make sure your letter of engagement clearly states what your payment terms are and re-iterate these terms on your invoice.
Further to payment terms ask yourself the question ‘Am I a bank?’ If the answer is no (as I expect it is for anyone reading this blog) only give credit if it is absolutely necessary – and then ensure there is some allowance for interest in the price you are quoting! Otherwise, make your payment terms ‘payment on receipt of invoice’. You probably won’t get paid immediately but at least you can chase earlier.
I know business owners who don’t like chasing for payment, even if they have agreed a fixed price, invoiced promptly and have clear payment terms, because they think their good clients will think badly of them. This, in my opinion, is the worst ‘sin’ of all. Firstly, GOOD clients pay as agreed in the contract – a good client is not one who bitches about the agreed price and then fails to pay promptly. Secondly, we are business people who should expect to be paid for a good job done, so there is nothing to be coy about when it comes to asking for what you are legally and morally entitled to!
So, to recap:
1. Agree clearly with your client the exact terms of the engagement both in terms of job to be done and fee to be paid.
2. Bill as soon as the job is complete.
3. Be clear on your payment terms and give as little credit as possible.
4. Be professional! If money is owed to you do not be coy about chasing for it.
Fiona 🙂
Business Accountant 