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UK Clarifies Bankers' Bonus Tax

by Robert Lee,, London

23 December 2009

The UK government has confirmed that the new bank "supertax" will not apply to non-banking companies outside of banking groups, to the relief of insurance companies, asset managers, stockbrokers and other financial intermediaries who feared the new measure's potentially wide ambit.

In a statement published on December 18, HM Revenue and Customs (HMRC) confirmed that the 50% bank payroll tax on bonuses of more than GBP25,000, announced by Chancellor Alistair Darling in the pre-budget report, applies to retail and investment banks, including building societies, and to banking groups.

HMRC issued the clarification after receiving representations from the financial services industry concerning the definition of a "bank" in the draft legislation. In particular, concerns were raised that the definition inadvertently catches companies which would not be regarded as a bank from a commercial or legal perspective.

"Having considered these, we think that the diversity of regulated investment activities undertaken by non-banking financial service groups in the UK means that the original definition of a ‘bank’ did not effectively exclude all the groups we intended to exclude. This resulted in a number of corporate groups inadvertently being brought within the definition of a ‘banking group’, and therefore within the scope of the bank payroll tax," HMRC explained.

To ensure that the definitions of "bank" and "banking group" apply as originally intended, HMRC has proposed to amend the draft legislation in the following ways:

  • Limiting the definitions of "UK resident bank" and "relevant foreign bank," so that, for a non-deposit taker, they only apply to a person which is a full scope BIPRU 730k investment firm (an authorized investment firm with the highest base capital requirement for regulatory capital) and whose activities consist wholly or mainly of relevant regulated activities.
  • In this context a person which would be a full scope BIPRU 730K investment firm but for the fact that its head office is not in the United Kingdom is to be treated as being one.

In addition, the amended draft would add the following to the list of "excluded companies":

  • A company in a group that is not a deposit taker and is only carrying on relevant regulated activities on behalf of an insurance company in the same group.
  • A company that does not carry on any relevant regulated activities otherwise than as a manager of a pension scheme.
  • A company whose activities consist wholly or mainly in acting as the operator of a collective investment scheme (within the meaning of Part 17 of the Financial Services and Markets Act 2000).
  • An exempt BIPRU commodities firm.

Changes are also being made to remove prime brokers who are full scope BIPRU 730K firms from the scope of the tax, and to exclude non-banking financial service groups that are incorrectly characterized by the rules as "banking groups" simply because the group structure includes a company with banking activity, even though that is a minor activity within the group as a whole. Whilst the bank should be in scope, the rest of the group should not.

"We believe that these changes should address most of the representations made concerning the definitions of banks and banking group. In addition we are working with representative bodies and individual groups to address further representations to clarify the scope and effect of the proposed legislation," HMRC said.

Richard Saunders, Chief Executive of the Investment Management Association, praised the Treasury for ensuring that the asset management industry will remain outside of the scope of the new tax.

"Since the announcement of the measure last week, the Treasury have made it clear to us that it is not their intention to include the asset management industry within its scope. We warmly welcome today's further clarification of the effect that is being sought," he said.

"We would like to acknowledge the open and professional way in which officials have engaged with us to ensure that the legislation has its intended scope. We look forward to a continued constructive dialogue as the detailed legislative language is developed," he added.

Whilst it seems that the clarification has been generally welcomed by the City, the government has, however, once again been criticized for being forced to issue yet another after-the-fact clarification of a new tax law.

"The clarification, snuck out after the close of play, will be well received by the City," commented Michael Wistow, head of tax at City law firm Berwin Leighton Paisner. "In essence, the government has made it clear that only retail and investment banks are affected. Important exceptions for the insurance industry, asset managers and stockbrokers will be introduced."

"However it is the latest 'back track' by the government in the tax field and will not convince business that the UK is a predictable place to do business," he warned. "It is still of note that our traditional policy ally, the US, has steered clear of announcing its own 'supertax' and our nearest European financial services competitor, Frankfurt, is benefiting from Merkel tax cuts."

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