FEATURED ARTICLES ISSUE 168 | JANUARY 28, 2016 Devolution Of Taxes In The UK by Alexander Goldsmith, Mayer Brown International LLP Contact: [email protected] , Tel. +44 020 3130 3808 Introduction Until the start of the UK's devolution process (" Welsh Assembly "). Devolution to Northern Ire- some 20 years ago, the UK tax system applied land and the establishment of the Northern Ireland equally to taxpayers in all parts of the country. Assembly (" NI Assembly ") followed shortly after- Th is meant that a multinational company wish- wards, as part of a far-reaching settlement conclud- ing, say, to set up a branch in Northern Ireland ed in May 1998. to invest in property in Wales, while also having some employees in Scotland, did not need to wor- Th e extent and nature of devolution varies be- ry about where in the UK its staff , operations or tween the diff erent nations of the UK. Broadly investments were based. In recent years, however, speaking, the Scottish Parliament and NI Assem- more devolved tax powers have been introduced, bly are free to legislate in relation to any matter and this means that in future multinationals will that is not expressly reserved to the UK parlia- need to take care to understand the specifi c tax ment; 1 other than "devolved taxes," tax-related consequences of basing their activities in diff erent matters are essentially reserved. 2 By contrast, the parts of the UK. With that in mind, this article Welsh Assembly does not have a general power to provides an overview of the current state of the legislate, and may only legislate in those specifi c devolved tax system in the UK, as well as a sketch areas which have been devolved to it; in relation of planned developments. to tax, only "devolved taxes" are within the Welsh Assembly's competence. 3 As described below, the Background only devolved taxes which have been provided Devolution in the UK began following referen- for so far are land transaction and landfi ll taxes dums in both Scotland and Wales in September in Scotland 4 and Wales, 5 although more limited 1997, with voters choosing to establish the Scottish devolution has also taken place in relation to the Parliament and the National Assembly for Wales rates and thresholds of other taxes. 31 It should also be noted that, although there is no companies is not mirrored in the LBTT provisions, devolution as such to England at present, a new and the way tax is calculated and administered in procedure whereby only members of the UK Par- relation to leases. 9 In addition, SDLT is not infre- liament who represent constituencies in England or quently modifi ed, and, although LBTT uses SDLT England and Wales will vote on measures deemed as a basis, changes to SDLT may not necessarily to aff ect just those UK nations (known as "English be picked up by the Scottish Parliament (although votes for English laws") may presage further tax de- it was announced that an equivalent of the forth- velopments on this front as well. 6 coming supplementary 3 percent SDLT charge on transfers of "additional" residential properties will Land Taxes also be introduced for LBTT). 10 Before April 1, 2015, stamp duty land tax (" SDLT ") was relevant to land transactions in all parts of the Th e Welsh Assembly was permitted in 2014 to in- UK. With the introduction of Land and Buildings troduce a new tax which would apply to transac- Transaction Tax (" LBTT "), 7 LBTT (and not SDLT) tions involving interests in land located in Wales. is generally chargeable in relation to transactions Th is tax will, however, only come into eff ect once involving Scottish land and buildings. 8 Although SDLT has been disapplied in relation to Wales by LBTT is broadly based on SDLT, there are a num- the central UK government; 11 legislation is current- ber of diff erences between LBTT and SDLT, nota- ly under development. 12 Th ere has been no equiva- bly with regard to rates and thresholds. Th e broad lent devolution in Northern Ireland as yet. overall eff ect of these diff erences is that transfers of residential properties worth up to GBP333,000 Income Tax and commercial properties worth up to GBP1.95m Income tax is payable in the UK by individuals on in Scotland attract lower amounts of tax than in their income (as opposed to their capital gains); the rest of the UK, and that more tax is payable depending on a taxpayer's level of income, "ba- in Scotland for properties worth more than those sic," "higher," and "additional" rates are incremen- amounts, meaning that investors looking to acquire tally applied. Devolution of income tax, like that portfolios of property across the UK will have to of corporation tax (on which see further below), pay attention to potentially increased transaction has so far been limited to the power to set diff erent costs in Scotland. rates; unlike, for instance, LBTT, there has been no general restructuring of the system of these taxes Th ere are also a number of other notable diff erenc- as part of the devolution process. As income tax es between LBTT and SDLT, such as the fact that powers have begun to be devolved, however, what the top SDLT rate of 15 percent for transfers of part of the country investors in the UK (as well as residential properties worth over GBP500,000 to domestic companies) choose to employ individuals 32 in is increasingly likely to aff ect the compensation the general UK rates, as well as the thresholds at actually received by those individuals. which Scottish rates would apply. 17 Th e Scottish Parliament was fi rst given the pow- Legislation has also been enacted to give the Welsh er to vary (by no more than 3 percent) the basic Assembly the ability to set the income tax rate for rate of income tax set by the UK Parliament for individual Welsh taxpayers in a similar manner individual Scottish taxpayers from the tax year to the current variation to the system of making 2000/01 onwards. Th is power did not apply to amendments to centrally-set rates that currently savings or dividend income, and was not exer- applies in Scotland, 18 although, unlike the current cised by the Scottish Parliament. 13 With eff ect Scottish system, each Welsh rate may be varied by from April 2016, Scotland's powers to vary the a diff erent amount. 19 Originally, this legislation re- rate of income tax have been extended;14 the cur- quired ratifi cation by a referendum before entering rent position is that the centrally-set higher and into force; although no referendum has been held, additional rates (and not just the basic rate) are it has recently been announced by the UK Govern- reduced by 10 percentage points, and the Scot- ment that the obligation to hold a referendum will tish Parliament then has the power to set a Scot- be removed. 20 tish rate of income tax (" SRIT ") 15 to be applied on top of these reduced rates. Th e SRIT can be For income tax purposes, "Scottish taxpayers" set at zero and there is no upper limit; the SRIT, and "Welsh taxpayers" are defi ned in similar like the previous devolved rates, does not apply terms as UK resident taxpayers that either have to savings or dividend income, which remains a close connection with the relevant jurisdiction chargeable at the main UK rates. However, this (defi ned by reference to a taxpayer's main resi- system of SRIT gives the Scottish Parliament lim- dence), or who do not have a close connection ited fl exibility, since increases or decreases must with another part of the UK and who spend more be applied equally to all tax bands, and for this days in Scotland or Wales, as applicable, than in reason the Scottish government has confi rmed any other part of the UK. 21 Notably, these tests that SRIT for the 2016/17 tax year will be 10 (i) only apply where an individual is found to percent – in other words, the same level of tax be resident in the UK for general UK income will be charged in the whole of the UK.16 Propos- tax principles, and (ii) apply a completely diff er- als in the draft Scotland Bill 2015-16 go further ent test in determining residence to that used for and will (if enacted) give the Scottish Parliament general UK income tax purposes, meaning that powers to determine the rates of income tax for employers may need to add an additional level of Scottish taxpayers (other than in respect of sav- scrutiny when determining the tax bills of inter- ings and dividend income) without reference to nationally mobile employees. 33 Corporation Tax If they do not fall to be regarded as SMEs, have Businesses active in Northern Ireland have felt that what would be regarded a permanent establish- they operated at a competitive disadvantage when ment (" PE ") in cross-border situations 27 (in compared with companies operating in the Repub- which case they will essentially attribute profi ts to lic of Ireland, as a result of the signifi cantly lower their Northern Irish "PE" under standard transfer corporate tax rates enjoyed by companies south of pricing principles). 28 the border. Th is has in the past led to inward invest- ment by a number of large multinationals being It will be interesting to see whether these changes channeled into the Republic of Ireland, without an will be suffi cient to attract overseas investors who equivalent level of investment into Northern Ire- might previously have looked to the Republic of land.