Bringing Your Business to the UK

1. Introduction

This Guide is intended to give a general outline of some of the legal aspects of doing business in the UK. The Guide outlines the different business mediums available to a foreign corporation or firm wishing to set up in the UK, how they are created and the practical and legal matters which need to be considered.

 

1.1    The separate jurisdictions of the UK

 

Overseas companies setting up business in or trading with the UK, i.e., England and Wales, Scotland and Northern Ireland, should be aware that these three regions comprise different legal jurisdictions and, whilst the laws relating to company incorporation and employment law in each of the jurisdictions are broadly similar, differences nevertheless do arise both in substantive and procedural law. The Isle of Man and the Channel Islands, while associated with the UK for Defence and Foreign Policy matters, are separate jurisdictions and each has its own legal system. This Guide has been written specifically to deal with the legal position in England and Wales.

1.2    Sources of Law in England and Wales 

 

The sources of law in England and Wales are firstly statute law and secondly common law (being the decisions of the courts throughout the country that create laws ‘common’ to the jurisdiction).

 

 

2. Choosing the right structure – Choice of business structure

2.1    Introduction

 

An overseas company proposing to set up business in the UK may do so by:

1. registering a UK establishment;
2. appointing an agent;
3. appointing a distributor;
4. setting up a branch;
5. incorporating a subsidiary company;
6. setting up a partnership;
7. setting up a limited liability partnership;
8. entering into a joint venture; or
9. setting up a European Economic Interest Grouping (EEIG).

The choice of structure will depend on the overseas company’s commercial objectives and on tax considerations.
 

 

3. UK representative office

3.1    General

 

A representative office is an office of the overseas company with activities which are preparatory or auxiliary to the activities of the overseas company. For example, the liaison, collection of information, public relations, distribution of information. Such activities do not constitute the carrying on of a trade and the overseas business will not be liable to UK corporation tax or income tax.

 

However, the appointment of a sales representative who will conclude contracts on behalf of the overseas company is likely to go beyond the scope of a representative office, and may be subject to UK corporation or income tax.

 

Registration is required where the overseas company is a limited company and the representative office is a “place of business” in the UK as it is a permanent location in the UK from which activities are conducted habitually or with some degree of regularity.

 

The overseas company must:

• within one month deliver a return to the Registrar of Companies, including particulars of the overseas company and particulars of the UK establishment;
• make a statement as to how they will comply with accounting requirements; and
• file certain documents with the return. For example, a certified copy of the overseas company’s constitution and copies of the latest accounting documents.

There is a continuing obligation on the overseas company to register any changes to the overseas company’s constitution, particulars of overseas company, particulars of the UK establishment or the way it complies with accounting requirements with Companies House.

3.2    UK representative office – Tax issues

 

Under UK domestic law, the profits derived from trading in the UK are generally taxable whereas those derived from trading with the UK are generally not. The UK authorities will look at factors such as where the sales contracts are made, where the trading operations are conducted and where the management and business decisions are made.

 

An overseas company wishing to establish a representative office and to thereby avoid a UK tax charge on its activities should restrict its activities in the UK to that of trading with the UK, for example, advertising, collecting and distributing information, and introducing potential customers to the overseas company. A tight control should be kept over these activities to ensure that the representative office does not at any time engage in activities which may give rise to a UK tax charge.

 

 

4. Agency

4.1    General

 

An overseas company that chooses to appoint an agent will avoid the regulatory burden of registering a representative office or incorporating a company. In addition, an overseas company is unlikely to face tax liabilities. However, if the agent concludes or has the authority to conclude contracts with customers in the UK on its behalf without the overseas company’s prior approval, or, if the prior approval of the overseas company is a mere formality to the conclusion of the contract, then this may mean the agent will be treated as a branch and its trading activities taxable in the UK.

 

There are no statutory requirements or formalities relating to setting up an agency in the UK. However, either the principal or the agent may request the other to set out in writing the terms of the agency. Indeed, it is sensible to prepare and sign a detailed agency agreement to try to avoid disputes arising between the parties during the course of the agency relationship and on its termination. There are certain provisions that cannot be excluded from agency agreements. These include the obligations to remunerate the agent, to advise him of sums owing to him and to pay the agent a sum in compensation for his loss of future benefit on termination other than for breach.

4.2    Agency – Tax issues

 

Where the agent has no authority to conclude contracts with UK customers on behalf of the overseas company without prior approval, profits derived from the agency are not liable to UK corporation or income tax.

 

Otherwise, the overseas company will be liable to UK corporation tax on the trading profits arising from the agency in the UK and on any income from property held for that agency. It will also be taxed on gains arising from the disposal of assets situated in the UK and relating to the trade.

 

5. Distributor

5.1    General

 

As an alternative to appointing an independent agent, an overseas company may instead appoint a local distributor to sell its products. The basic difference between an agent and a distributor is that the agent normally finds customers for the overseas company and any actual sale is conducted directly between the overseas company and the customer (even though the contract may have been negotiated and signed by the agent on behalf of the overseas company). However, a distributor usually purchases the products from the overseas company and then re-sells them on to the customers, so that the contract is between the customers and the distributor and there is no direct relationship between the overseas company and the end customer.

 

There is no particular formality. The relationship is primarily governed by contract between the overseas company and the distributor.

5.2    Distributor – Tax issues

 

Since profit derived from a distributorship would be regarded as resulting from trading with UK, rather than trading in the UK, such profits are not subject to UK taxation.

 

 

6. Branch

6.1    General

 

The overseas company’s activities in the UK may need to go beyond those typical of a representative office. If so, it may consider setting up a branch in the UK.

 

A branch is categorised as an “establishment” and requires registration under the Eleventh Company Law Directive.

 

The overseas company must:

• within one month deliver a return to the Registrar of Companies, including particulars of the overseas company and particulars of the UK establishment;
• make a statement as to how they will comply with accounting requirements; and
• file certain documents with the return; for example, a certified copy of the overseas company’s constitution and copies of the latest accounting documents.

There is a continuing obligation on the overseas company to register any changes to the overseas company’s constitution, particulars of overseas company, particulars of the UK establishment or the way it complies with accounting requirements with Companies House.

 

Although a branch would normally occupy business premises, regular use of residential property for business purposes may also constitute a branch. A branch does not have any separate legal identity from the overseas company, but it is subject to certain statutory requirements.

6.2    Branch – Tax issues

 

The overseas company will be liable to UK corporation tax on the trading profits arising from the branch or (more correctly) permanent establishment (“PE”) in the UK and on any income from property held for that. It will also be taxed on gains arising from the disposal of assets situated in the UK, and relating to the trade.

 

It may be possible for an overseas company trading in the UK through a PE to transfer the assets of the PE to another company within its group, which is either resident in the UK or which is not resident but which will use the assets for the purpose of a UK trade carried on by the transferee company, on the basis that there will be no gain (and therefore no charge to UK corporation tax) and no loss.

 

An overseas company with a UK PE may be eligible for the small profits rate of corporation tax of 20% if the worldwide profits of the overseas company do not exceed £300,000.Where such profits exceed £1.5 million, the corporation tax rate is 23%. Marginal relief is available where profits are between £300,000 and £1.5 million (see below). The rate is normally available if the claimant is resident in a country with which the UK has a double taxation agreement containing a ‘non-discrimination’ article. Where the overseas company has associated companies anywhere in the world, the above thresholds of £300,000 and £1.5 million are reduced proportionately.

 

Unpaid tax may be collected from present and former group companies and from present and former controlling directors.

 

 

7. UK subsidiary company

7.1    General

 

The overseas company may wish to incorporate a UK subsidiary company with its registered office in the UK. This company would probably be limited by shares, although its liability could be limited by guarantee or indeed unlimited. They are also called limited companies.

 

The two principal types of UK limited liability companies are: the Public Limited Company, or ‘PLC’, and the Private Limited Company, or ‘Ltd’. Since private limited companies are far more frequently used, this Guide will refer to such companies throughout.

 

Unlike in many other European countries, there is no minimum share capital required for a UK private limited company although it is, of course, necessary to ensure that the company will have sufficient capital to carry out its activities.

 

Incorporating a company in the UK is probably easier and involves fewer formalities than in almost all other European countries.

 

Under the Companies Act 2006, the UK subsidiary must have at least one member (or shareholder) and one director who is a natural person. Private companies are not required to have a secretary (i.e. the officer of the company responsible for the corporate administration), but may choose to have one.

 

Laytons is able to provide ‘shelf’ companies and both registered office facilities and company secretarial services.
 

7.2    UK subsidiary company – Tax issues

 

A UK resident company will generally be chargeable to UK corporation tax upon its world-wide profits, including both income and capital gains. (This is to be contrasted with the taxation position of a branch or agency, which is taxed solely on the profits attributable to its activities in the UK).

 

The rate of corporation tax is currently 23% with a reduction to 20% for small companies. (For more details on general corporate tax issues and corporate tax incentives see the separate summary of UK business taxation below).

 

Losses sustained in a trade carried on within the UK can be relieved in a number of ways. For corporation tax purposes, losses can generally be carried forward and offset against future profits from the same trade (unlike those of some other countries, the UK’s tax system normally allows trading losses to be carried forward indefinitely provided there is continuity of trading); they can also be offset against profits, including other income and chargeable gains, of the relevant accounting period and the accounting period in the immediately preceding year. Finally, they may be surrendered to another company liable to UK tax, providing both the loss making company and the claimant company are members of the same group.

 

It should be noted that it is not possible to reduce profits liable to UK taxation by ‘transfer pricing’ arrangements under which the UK operation charges artificially low prices to foreign affiliates or is charged artificially high prices by foreign affiliates.
 

 

8. Partnership

8.1    General

 

A partnership is the relationship which subsists between persons carrying on a business in common with a view of profit. The partners within a partnership share the responsibilities of decision making, profit and loss of the business and have a duty of good faith to each other. The partners are personally liable for all the losses of the business, even if the losses are incurred by the actions of other partners. Such liabilities are also unlimited. For these reasons, it is not common for overseas companies to set up in the UK using a partnership.

 

There are no formalities relating to setting up a partnership which may arise orally, by written conduct or even by conduct, provided that the definition of partnership under the Partnership Act 1890 applies. However, a written partnership agreement is invaluable as evidence of the relationship and which can also set out clearly the terms of the agreement between different partners.

8.2    Partnership – Tax issues

 

Each partner is liable for the tax arising from his own share of the profit of the partnership.

 

 

9. Limited Liability Partnership (“LLP”)

9.1    General

 

LLPs are relatively new in the UK. They were introduced in April 2001 and are often thought of as a hybrid between partnerships and limited companies. Like limited companies, an LLP has its own legal personality. Thus, the members’ personal assets are separate from the business assets of the LLP. Similar to limited companies, members of an LLP have limited liability up to the amount of their capital in the LLP (subject to certain exceptions).There is also no maximum number of members in a LLP.

 

An LLP is incorporated by registration with Companies House and must have at least 2 members. Members of an LLP can be individuals or companies and do not have to be resident in the UK. It is not necessary to have a written members’ agreement, as the law will automatically apply certain basic terms governing the rights and obligations of the members. However, these terms are likely to be too brief to be sufficient and it is most advisable to have a written members’ agreement.

9.2    LLP – Tax issues

 

Generally, the LLP itself is not taxed but each member of the LLP is liable to personal taxation on his share of the profits.

 

 

10. Joint venture

As well as partnership and limited partnership, starting a business by collaboration with other parties can also take the form of a joint venture. Usually, a joint venture is structured using a limited company (see information under UK subsidiary company above).

 

 

11. A European Economic Interest Grouping (EEIG)

If the overseas company wishes to co-operate with its UK subsidiary or with another entirely separate UK company or unincorporated business it may consider setting up an EEIG. This vehicle for setting up joint ventures in the European Economic Area (EEA) was introduced by a European Union (EU) regulation in July 1989. In order to set up an EEIG, there must be at least two members from different EEA states. Those members may be EEA companies, EEA firms or co-operatives, individuals carrying on business in the EEA, or bodies carrying on economic activity in the EEA.

 

An EEIG constitutes a legal entity in its own right and consequently can enter into contracts, own property, sue and be sued, and be wound up if necessary. The permitted objects of an EEIG are extremely wide; it can be used for almost any purpose that is ancillary to the business and activities of its members. An EEIG resembles in some ways a company, in that it is a legal entity, it has members (who are rather like shareholders) and managers (who resemble directors). However, it also has certain features of a partnership in that the members are jointly and severally liable, and it enjoys a less formal management structure.
 

 

12. Financing of a branch or subsidiary

In general, a UK company that is a party as a debtor or a creditor to a loan will be subject to the loan relationship rules in the Corporation Tax Act 2009.There are obviously different implications of financing for both branches and subsidiaries.

12.1    Borrowing by a branch of the company

 

The branch cannot be regarded as an entity separate from the company that established it and therefore finance provided out of shareholders’ funds will not give rise to any tax relief. However, a borrowing by the company for the purposes of the branch is equally a borrowing by the branch, so relief may be available for interest paid thereon.

 

Relief may be available not only for interest costs but also for discount, the cost of redeeming debt in excess of its issue price and incidental costs of obtaining finance. In addition, relief is no longer dependent on the nature of the borrowing or the identity of the lender.

 

The legislation contains a number of anti-avoidance provisions that could be relevant in the context of borrowings by non-resident companies.

12.2    Borrowing by a subsidiary

 

The corporate debt rules will apply to borrowings by a subsidiary so that relief should normally be available for interest costs, although a number of special rules may apply where the borrowing is from a non-resident parent. In particular, certain payments of interest by a UK subsidiary to its overseas parent can be treated as a distribution, with the interest not being deductible by the subsidiary for tax purposes.
 

 

13. Converting branches to subsidiaries and vice versa

13.1    Branch to subsidiary

 

If the non-resident company were to set up a PE in the UK and then decided that the trade being carried on through that PE in the UK would be better conducted by a subsidiary, this would be possible. Conversion of the PE into a subsidiary normally involves the transfer of the PE’s trade to a subsidiary resident in the United Kingdom. In such circumstances relief from corporation tax on the assets transferred to the subsidiary is available if certain conditions are met.

13.2    Subsidiary to branch

 

Conversely, the transfer by a UK resident subsidiary of an overseas company to a PE of that company of assets used for the subsidiary’s trade (and which will continue to be used for carrying on a UK trade by the PE) may similarly attract relief from corporation tax, provided that certain conditions are met. The transfer of other types of assets (e.g. an investment property not used for either company’s trade) can give rise to a corporation tax liability.

 

 

14. Subsidiary or branch?

14.1    Formation and administration issues

 

The branch is not often used in the UK and generally it is preferable to set up a limited liability subsidiary company which would possess its own legal personality, but this depends on the detailed circumstances of the company. Generally, it is a lot more effort to set up and administer a branch than a subsidiary company. The non-resident company would of course be liable on all contracts properly made by a branch.

14.2    The substantive commercial and tax issues

 

The real questions are commercial and tax ones, which cannot always be answered from just a UK perspective. Local tax legislation applicable to the non-UK resident company must be considered, as well as any relevant double tax agreement. It may also be necessary to address the issue of how it is proposed to finance the UK operation. The biggest practical questions are:

 

14.2.1    Will the UK operation make a loss in the first few years of operation and is it required that such loss be offset in the year of creation against taxable profits in the home country in the same year?

14.2.2    If this is the case, then there may be some sense in setting up a UK branch and operating it until the UK operation has become profitable, depending on how the branch is to be financed and the extent of the financing costs and the availability of tax relief on these borrowings. The use of a branch may enable starting up costs, including capital expenditure, and initial trading losses to be set against other profits for the purposes of taxation in the parent’s country of residence.

14.2.3    Once the operation  has  reached  maturity  and  is  operating  profitably, will a branch or subsidiary be taxed at a lower effective rate?

14.2.4    In  this  case,  a  subsidiary  incorporated  and  resident  in  the  UK  may  be entitled to the benefit of the UK’s wide network of double taxation agreements – this may be very important as profits remitted from a subsidiary may bear tax at a lower effective rate than those remitted by a branch.
 

14.3    Checklist and conclusion

 

The structure adopted by an overseas company wishing to set up business in the UK will depend upon its commercial and practical objectives, and also the way in which it wishes its activities in the UK to be taxed. The following questions should be considered when choosing the structure:

 

14.3.1    What activities are to be carried out in the UK?  Is actual trade to be carried out, or merely promotion, advertising, and the provision of information?

14.3.2    Do you wish to incur the expense of complying with the statutory and formal requirements of setting up and running a company, including filing accounts and annual returns, etc?

14.3.3    What particular commercial considerations are to be taken account of?

The answers to these questions will normally govern the most appropriate way for an overseas company to set up business in the UK.

 

 

15. Summary of UK business taxation

15.1    Overview of taxation in the UK: Bringing an overseas business to the UK

 

Type of business	Description of business structure	UK taxation
Representative Office	The business trades with UK rather than in the UK. For example, business activities consisting of advertising, collecting and distributing information and introducing potential customers to the overseas company. Sales contracts, trading operations, management and business decisions NOT made in the UK.	Provided that trading is conducted with the UK, rather than in the UK, not liable to UK corporation tax or income tax (see below).
Agency	Independent agent does not and has no authority to conclude contracts without PRIOR approval of the overseas business.	Not liable to UK corporation tax or income tax. However, if overseas company approval is a mere formality then the agency is deemed to be a perma- nent establishment subject to UK taxation.
Distributor	Distributor purchases products from overseas com- pany and re-sells them to customers. The contract is between customers and distributor.There is no direct relationship between the overseas company and the end customer.	Not liable to UK corporation tax or income tax.
Permanent establishment (including Branch)	Non-resident company with a branch or similar structure constituting a fixed place of business in the UK, through which the business is wholly or partly carried on.The UK may also have a double tax treaty with the relevant overseas country  which provides further guidance of the meaning of  a “permanent establishment” which may include a place of management, a branch, an office, a factory, a workshop etc.	UK corporation tax is chargeable on the profits attributable to the UK permanent establishment and on any gains arising from the disposal of UK assets relating to the trade or permanent establishment.
UK subsidiary company	The overseas company incorporates a subsidiary in the UK.	Chargeable to UK corporation tax on worldwide profits of the UK subsidiary, including income and capital gains.
Partnership	Two or more persons carry on a trade or business in partnership and sharing income, capital and losses in agreed ratios.	The profits of a partnership are assessed to tax on the partnership shares as the individual partner’s income. Refer to taxation of individuals below.
UK limited liability partnership	A UK corporate body having two or more members which carries on a business.	The profits of the limited liability partnership are generally assessed to tax in the same way as if the members were in partnership (see above).

 

16. Tax on corporations

16.1    UK corporation tax

 

The main rate of corporation tax is 23% (to fall to 21% for the year commencing 1 April 2014). The small companies’ rate is 20% for companies with taxable profits up to £300,000. Marginal relief applies to companies with profits between £300,000 and £1,500,000. These profit limits are reduced for a company which is part of a group or has associated companies (including UK and non-UK resident companies).The 20% rate and marginal relief do not apply to certain non-trading companies.

 

The taxable profits of a company are its trading profits from which allowable deductions (e.g. qualifying trade expenses) are made. Various corporation tax allowances, exemptions and reliefs are available to companies.

 

The rates of corporation tax which apply are fixed for financial years, which run from 1 April to 31 March.

Financial year starting 1 April	(£) profits
Small profits rate 20%	01 – 300,000
Marginal relief applies to companies whose profits fall between	300,001 – 1,500,000
Main rate 23%	1,500,001 or more

 

In the financial year starting 1 April 2015, the main rate of corporation tax will be 20%, effectively merging the small profits rate with the main rate. Marginal relief will therefore cease to have effect.

 

Corporation tax is due for ‘Accounting Periods’ which are normally 12 months long. Accounting periods can, in some circumstances be shorter than 12 months but never longer. Under the corporation tax self assessment regime, companies are required to:

 

• work out their own tax liability; and
• pay their corporation tax without prior assessment by HM Revenue and Customs (‘HMRC’). Companies (other than ‘large’ companies – see below) must pay tax no later than nine months and one day after the end of the accounting period (the normal due date).

 

‘Large’ companies must pay most of their tax earlier than this date, by Quarterly Instalment Payments (QIPs). ‘Large’ companies are those with annual profits of more than £1.5 million (divided by the total number of associated companies). These companies must pay their tax bill by QIPs based on anticipated current year liabilities.

 

There are special rules for companies during the transitional period when they become large so that they need not pay by QIPs in the first period for which they are large (unless their profits exceed £10 million). If the company, or one of the companies in a UK group of companies, has to pay its tax by QIPs, the group can also enter into a Group Payment Arrangement with HM Revenue and Customs (HMRC).This arrangement allows the group to manage any uncertainty over how much tax individual companies owe, as compared to what the group owes. Companies in the group will still have to estimate the correct amount of tax for the group as a whole, but need not worry about the precise division between the group companies. This arrangement also means that the group can minimise any interest on tax underpaid by the group as a whole.

 

Companies are liable to penalties if they do not deliver a corporation tax return by the statutory filing date, normally 12 months after the end of the accounting period. If the payment of corporation tax is later than the due date, penalties and interest are triggered.

16.2    Other direct and indirect taxes

 

Other direct and indirect taxes which may be relevant to a business operating in the UK include:

16.2.1    National insurance contributions
These are social security contributions. Employers pay 13.8%  of  each employee’s salary that falls above a certain threshhold.

 

16.2.2    Stamp duty land tax
From 1 December 2003, a new stamp duty land tax (SDLT) on transactions involving the acquisition of UK land was introduced. The mandatory tax will be triggered automatically 30 days after the effective date of the transaction, which is generally the date that the buyer acquires the land interest. Depending on whether the property is residential, SDLT is charged at the following rates:

Residential	Non-residential/mixed
Consideration	Rate	Consideration	Rate
Up to £125,000	0%	Up to £125,000	0%
£125,001-£250,000	1%	£125,001-£250,000	1%
£250,001-£500,000	3%	£250,001-£500,000	3%
£500,001-£1 million	4%	£500,001-£1 million	4%
£1,000,001 -£2,000,000	5%	N/A
Over £2 million (where the buyer is a human)	7%	N/A
Over £2 million (where the buyer is a non-natural person, such as a company)	15%	N/A

 

SDLT on leases will be based on the net present value of all the rental payments due over the term of the lease at a rate of 1% (in the case of a lease of commercial property) if the net present value exceeds £150,000.
 

There are numerous exemptions from stamp duty land tax, including an exemption where residential land is in a ‘disadvantaged area’ if the consideration does not exceed £150,000.

 

16.2.3    Annual Tax on Enveloped Dwellings (ATED)
Corporate owners of residential property worth over £2 million are liable to the 28% capital gains tax charge on disposal (see below) and a 15% stamp duty land tax rate on acquisition mentioned above (see above). In addition, they are subject to the ATED based on the property’s value:

Property Value	ATED (2013-14)
£2m to £5m	£15,000
£5m to £10m	£35,000
£10m to £20m	£70,000
£20m +	£140,000

The ATED is intended to apply only to situations in which an individual occupies a property but does not own it in his own name, instead holding the property through a company. It is not intended to apply to situations where, for example, a property is let to an unconnected third party on a commercial basis. The various reliefs available from the ATED reflect this intention, and can apply to reduce the total ATED liability to zero.

 

16.2.4    Capital gains tax on sale of residential properties worth over £2 million by corporate owners
The tax will be levied at a rate of 28% on sales of residential properties worth over £2 million by corporate owners. Broadly, gains will be taxable only if they arise after 6 April 2013 in respect of increases in value after 5 April 2013, and reliefs will be available.

 

16.2.5    Stamp duty
Stamp duty is generally limited to the transfer of shares and other marketable securities and interests in a partnership that holds stock and marketable securities as partnership property where it is necessary to document or register the transaction. The amount of duty is 0.5% of the amount of chargeable consideration with the amount payable rounded up to the nearest £5. However, where the consideration is certified to be £1,000 or less, the transfer is exempt from stamp duty.

 

The Government has announced plans to abolish stamp duty on shares quoted on junior markets, such as the Alternative Investment Market (AIM).

 

16.2.6    Stamp duty reserve tax
This is a tax on the sale of shares and certain other securities in UK companies not caught by stamp duty. The standard rate is 0.5% but increases to 1.5% where shares are transferred to or issued in depositaries (such as American Depositary Receipts) or into a clearance system.

 

16.2.7    Import duties

Most goods arriving  in  the  UK  from  outside  the  EU  are  liable  for  some or all of the following taxes:

 

• Customs Duty (General Goods);
• Excise Duty (Tobacco, Alcohol, Fuel etc)
• Import VAT (General Goods)

 

In addition, some goods may be liable to an additional import duty known as Anti- Dumping Duty which is imposed by the EU on products from outside the EU, supplied at prices substantially lower than normal commercial rates.

 

16.2.8    Value added tax (“VAT”)
VAT is a general turnover tax which applies to most supplies of goods and services made in the UK by a taxable person (i.e. one who is registered, or ought to be registered, for VAT), to most imports of goods into the UK from outside the EU and to the acquisition of goods from other member states of the EU. Imports of goods from outside the EU may also be subject to customs duties.

 

VAT is chargeable on supplies of goods or services in the UK and the rate of VAT chargeable depends on the category of the supply. The standard rate of VAT is currently 20% but there are tax advantaged lower rates of 5% (which applies, for example to supplies of domestic fuel and power) and 0% (which applies, for example, to supplies of food or new dwellings). Certain supplies are not taxable, and are thus exempt, for example supplies of finance or insurance.

 

There is a difference between the import of goods from outside the EU and the acquisition of goods from other EU member states. Generally, where goods are imported into the UK from outside the EU VAT is due on importation. Where goods are acquired in the UK from another member state of the EU, the acquirer must account for VAT through its quarterly or monthly VAT return.

 

The rules are complex but, generally, VAT incurred by a taxable person who is making only taxable supplies should be fully recoverable.

 

Anyone carrying on a business in the UK with a taxable turnover which exceeds the registration limit (currently £79,000 during the previous 12 months) is required to register; failure to do so can result in significant penalties. However, this threshold does not apply where the person making the supply does not have a business establishment or fixed place of business in the UK. Such persons are required to register if they make taxable supplies in the UK of any value.

 

A registration requirement may also be triggered, for businesses not otherwise registrable in the UK, by “distance selling” activities involving UK non-VAT registered customers. The most obvious example of this kind of activity is mail order (including sales through a website). Where distance sales to UK customers in a given year exceed the relevant threshold (currently £70,000), or where distance selling of excise goods (e.g. alcohol and tobacco) occurs to any extent at all, the seller is obliged to register in the UK and to account for UK VAT on such sales, as well as on other taxable supplies it makes in the UK.
 

Standard VAT accounting requires businesses to record the VAT on every sale and purchase they make. To ease this burden for small businesses, a business may elect for the Flat Rate VAT scheme, where a business’s VAT payment is calculated as a percentage of total VAT-inclusive turnover. To be eligible, the business must predict that its total VAT-inclusive supplies made in the financial year will not exceed £150,000 in value. However, it should be noted that in some circumstances, use of the Scheme may result in a higher VAT bill.

 

16.2.9    Business rates
This is a levy charged on the occupier or, if  there  is  no  occupier,  the owner of commercial property.

 

 

17. Taxation in the United Kingdom:Tax on individuals

17.1    Criteria

 

An individual’s liability to direct UK taxes (income tax (see below), capital gains tax (see below) and inheritance tax (see below)) is based on two criteria:

 

17.1.1    residence;
17.1.2    domicile

 

A brief summary of residence for UK tax purposes is set out below. The UK law on residence was overhauled with effect from 6 April 2013. There is now a statutory test for residence, replacing the old common law test. The new statutory residence test will allow individuals to determine with much greater certainty whether they will be UK resident than they could previously.

 

Accompanying the introducing the statutory residence test was the abolishment of the status of ordinary residence, which was a third criterion used to determine an individual’s liability to direct UK tax. Transitional arrangements are in place that apply to individuals who previously benefitted from ordinarily resident status, but going forward, the status will be of little relevance.

17.2    Residence

 

Under the statutory residence test, an individual is UK resident in a given tax year if he meets either the “Automatic Residence Test” or the “Sufficient Ties Test”.

 

The Automatic Residence Test is met if any of the “Automatic UK Tests” are met and none of the “Automatic Overseas Tests” are met. Examples of the Automatic UK Tests are where the individual spends at least 183 days in the UK per year; or where the individual works in the UK full-time. Examples of the Automatic Overseas Tests are where the individual has been resident for at least one of the last three years and spends fewer than 16 days in the UK this year and does not die this year; or where the individual works overseas full-time.

 

If and only if the individual meets none of the Automatic UK Tests and none of the Automatic Overseas Tests, the Sufficient Ties Test may be used to establish the individual’s residence status. Satisfaction of the Sufficient Ties Test depends on the number of days the individual spends in the UK during the tax year, the number of “ties” he has with the UK, and whether he is leaving the UK after having been previously resident or arriving in the UK:

“Leavers”
Days spent in the UK in the tax year	Ties sufficient to meet the test
16 to 45	At least 4
46 to 90	At least 3
91 to 120	At least 2
More than 120	At least 1

 

“Arrivers”
Days spent in the UK in the tax year	Ties sufficient to meet the test
46 to 90	All 4
91 to 120	At least 3
More than 120	At least 2

 

Examples of ties to the UK include having a spouse, civil partner or minor child who is a UK resi- dent; or working in the UK for at least 40 days per year.

 

17.3    Domicile

 

An individual is domiciled in the country of his permanent home. The concept of domicile is distinct from nationality and residence. In general terms, an individual has a domicile of origin which is derived from the domicile of his father. However, an individual is free to change his domicile when he is aged 16 years or older. To do so, the individual must prove that he has an intention to change his domicile and to live in another country. HMRC will consider factors such as selling the permanent home in the former country of domicile and purchasing and actually residing in the new (chosen) domicile to be cogent evidence of acquiring a new domicile.

17.4    Remittance Basis Claim

 

Broadly, taxation on “the remittance basis” means that the foreign income and foreign capital gains of an individual who is resident but not domiciled in the UK are only taxable in the UK to the extent that they are brought into or enjoyed in the UK, or deemed to be so.

 

From 6 April 2008, all such individuals must normally claim the remittance basis (it is not available automatically). Individuals who do so normally lose their entitlement to personal allowances and the annual capital gains tax exemption. A non-domiciled individual who has been resident in the UK in at least 12 of the 14 tax years immediately preceding the current tax year must pay a £50,000 charge to claim the remittance basis in the current tax year. This charge is reduced to £30,000 for non-domiciled individuals who have been resident in the UK for 7 of the 9 previous tax years.

17.5    Income tax

 

Individuals are subject to UK income tax on different sources and types of income as follows:

 

17.5.1    Types of income

(a)    Earned income which includes earnings from employment, pensions and income from a trade, profession or vocation.

(b)    Unearned income, including investment income, dividends, interest on savings accounts, and any other income which is not earned income.
 

Tax on individuals: UK Income Tax

* The remittance basis charge must be paid, if applicable (see above).

 

Income tax rates and taxable bands

Income tax rates	2013-14
Starting rate for savings: 10%*	£0 – £2,790
Basic rate: 20%	£0 – £32,010
Higher rate: 40%	£32,011 – £150,000
Additional rate: 45%	Over £150,000

* There is a starting rate for savings income only. If an individual’s non-savings income exceeds the starting rate limit, then the 10% starting rate for savings will not be available for savings income.

 

 

18. Capital gains tax

18.1    General

 

UK capital gains tax may be applicable to gains made on disposal (including sale) of assets.

18.2    Residence, ordinary residence and domicile

 

Individuals who are resident and domiciled in the UK will also be subject to UK capital gains tax on their UK and overseas gains on the disposal of assets situated anywhere in the world. However, UK resident individuals who are not UK domiciled who claim the remittance basis will be subject to UK capital gains tax on overseas gains only to the extent that they are remitted to the UK in a year of residence. Furthermore, no capital gains tax liability is triggered on the remittance of overseas gains in any tax year prior to when an individual becomes UK tax resident.

 

Individuals who are not resident in the UK are not generally liable to UK capital gains tax on gains or disposals of UK properties unless for example, the non-resident uses that property in carrying on a business in the UK through a branch or agency.

 

Note that there are special rules which apply to individuals who were resident for four of the last seven tax years. The rules make them subject to the UK capital gains tax regime if they resume UK residence within 5 years after their departure from the UK.

18.3    Charge to capital gains tax

 

For capital gains tax purposes disposals include selling, exchanging, transferring or gifting. There are certain exempt assets (e.g. private motor cars, personal items sold for £6,000 or less, main residential home) which are not chargeable and each individual has an annual exemption such that the first
£10,900 (2013-14) of gains is not taxable. However, the annual exemption is normally lost if a non- domiciled individual claims the remittance basis. The current lifetime limit for ‘Entrepreneurs’ Relief’ is £10 million of qualifying gains, which are charged at an effective rate of 10%.The relief only applies to a material disposal by an individual of qualifying business assets.

 

For individuals the rate of tax on chargeable gains arising is currently 28% for higher and additional rate taxpayers, and 18% for basic rate taxpayers. Non-domiciled individuals who elect to pay the remittance basis charge in order to be taxed on that basis will be liable for tax at 28% on gains.
 

18.4    Inheritance tax

 

Subject to availability of reliefs and exemptions, a UK domiciled individual is subject to UK inheritance tax which is chargeable on worldwide assets at death and on lifetime gifts made in the seven years prior to death.

 

A non-UK domiciled individual is chargeable to UK inheritance tax in respect to assets situated in the UK (including lifetime gifts made in the seven years prior to death).

 

A special rule in relation to UK inheritance tax deems an individual who is non-UK domiciled at the time of death to be UK domiciled if he has resided in the UK for 17 out of the last 20 years before death or the date of the lifetime gift.

 

The first £325,000 (frozen until 5 April 2015) of transfers (death or lifetime) is chargeable at nil percent. A surviving spouse or civil partner may claim the unused proportion of a deceased spouse’s or civil partner’s nil rate band up to the current nil rate band. Certain lifetime gifts trigger inheritance tax at 20% at the time of the gift. The rate of inheritance tax on death is, in general, 40%.
 

 

19. The right to work in the UK

19.1    Citizens of an EEA member state

 

Citizens of a European Economic Area member state have free movement within the EEA, and may live and work in the UK without and special permission. From 1st January 2014, citizens of Romania and Bulgaria are able to live and work in the UK without restriction. This means that individuals from those countries can work as employees, self-employed or as business persons full-time or part-time for any length of time in any member state without needing to comply with immigration controls.

19.2    Immigration controls for non EEA citizens

 

The UK Border Agency (UKBA) manages UK’s immigration and considers applications from individuals who want to work in the UK, decides applications from people who want to become British citizens and processes applications from employers wishing to register as sponsors (employers) of non-EEA workers.

 

A radical overhaul of the immigration system commenced in 2008 and is being implemented in stages. It introduced a new “points-based system” and amalgamates over 80 immigration categories into a five-tier system. The five tiers include:

 

19.1.1    Tier 1: workers with exceptional talent, entrepreneurs and investors.
19.1.2    Tier 2: skilled workers, including Intra Company Transfers
19.1.3    Tier 3: low-skilled workers
19.1.4    Tier 4: students
19.1.5    Tier 5: temporary or exchange workers

 

Under the new system, migrants must pass a points-based assessment before they can get permission to enter or remain in the UK. Each of the system’s five tiers has different points requirements and points are awarded to reflect the migrant’s ability, experience, English language ability, age and chosen industry.

 

Migrants in any tier, except Tier 1, must be sponsored. Employers who want to sponsor a migrant must apply to the UKBA for a Sponsor licence.

 

19.3    Business visitor

 

A “business visitor” is special category of UK immigration permission. It can be used by those who are not citizens of an EEA member state (or Switzerland) and who intend to visit the UK for periods of up to six months in any year to transact business.

 

A business visitor can only carry out a “permitted activities” during their stay. These include attending meetings and conferences, arranging deals or negotiating or signing contracts, and conducting site visits.

19.4    Sole representative

 

An individual who is establishing a commercial presence for an overseas company in the UK in the form of a registered branch or a wholly-owned subsidiary may be able to enter as their sole representative. He will be expected to work full-time for one company and may not do business of his own or represent any other company’s interests. An initial period of three years will normally be granted, with the option to extend this for up to another two years.

 

This is the category of entry which can be used for an experienced employee of an overseas business to enter the UK to open a UK branch or subsidiary of the overseas business, and he can apply on behalf of the UK branch or subsidiary for a Sponsorship Licence to bring in and employ other employees of the overseas business and to employ other non-EEA workers under Tier 2.

19.5    Partners and Families

 

Where a foreign national also wishes to bring his partner and children to the UK to stay during the period of his employment, entry clearance (a type of visa) must usually be obtained from the Visa Application Centre at the British Consulate overseas.

19.6    Indefinite leave to remain

 

Certain tiers allow an individual who spends a continuous period of five years in the UK to apply for indefinite leave to remain in the UK. Applicants in certain circumstances may need to pass an English language and citizenship course (if their standard of English is below a certain level) or a “Life in the UK” test if their English reaches the required standard.

19.7    British citizenship

 

A foreign national who has held indefinite leave to remain in the UK for at least the last 12 months may apply to naturalise as a British citizen. One of the principal requirements is that, during the previous five years, the individual has not spent more than 450 days outside the UK and not more than 90 days in the last 12 months. In addition, the individual must demonstrate sufficient knowledge of the English language, pass a “Life in the UK” test (if they obtained indefinite leave before April 2007) and show an intention to make the UK their home.
 

 

20. Employment Law

20.1    Employment Rights

 

Employees in the UK benefit from a range of statutory employment rights, the primary ones being:

 

• protection from discrimination – it is unlawful to discriminate against an employee on the grounds of a “protected characteristic”. Therefore, an employee cannot be treated less favourably because of reasons relating to: age, sex, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, or sexual orientation;
• protection from “unfair dismissal” – once an employee has attained two years’ continuous service he/she will attain the right not to be unfairly dismissed. To dismiss an employee who has attained this right, an employer must have a “fair” reason and follow a “fair” process. If an employee is unfairly dismissed, the employer will be liable for a basic award (calculated by reference to age and length of service) and a compensatory award for financial loss of up to one year’s salary or £74,200 (whichever is less);
• “whistle-blower” rights – these laws provide protection to employees who “blow the whistle” regarding their employer’s potential wrong doing. Essentially, they state that an employee cannot be subject to a detriment or dismissed by reason of disclosing any potential wrongdoing; and
• “TUPE” protection – the Transfer of Undertakings (Protection of Employment) Regulations 2006 (known as “TUPE”) provide protection to employees involved in business transfers or outsourcing arrangements. Protection extends to both the employees’ employment and terms and conditions of employment.

 

There are also statutory minimum levels of annual leave, notice, pay and detailed rules regarding working time. Whilst it is open for the parties to be more generous should they wish, the following minimums must be observed:

 

• annual leave – 5.6 weeks (or 28 days) per year;
• notice – where an employee has been employed for one month but less than two years, the entitlement is one week. Thereafter it is one week for every complete year of service up to a maximum of 12 weeks;
• minimum wage – for employees aged 21 and over the rate is presently £6.31 per hour (lesser rates apply to younger workers/apprentices);
• working time – the standard weekly limit on “working time” is 48 hours, but employees can opt out of this should they wish.
   

20.2    Employment documentation

 

It is important to have proper contractual documentation for employees as:

 

• there is a legal obligation to provide employees with a written statement of terms of employment within two months of them commencing employment (s.1 Employment Rights Act 1996);
• a well drafted contract allows employers to protect their confidential information, intellectual property and other legitimate business interests;
• it is a key document in clearly defining an employee’s duties/rights; and
• it serves as a valuable framework in managing the employment relationship.

It is also advisable to have a non-contractual Employee Handbook setting out policies and procedures on matters such as disciplinary and grievances, anti-corruption, equal opportunities, sickness absence etc.

 

Protecting “legitimate business interests” is often done by including restrictive covenants in the employment contract. These are restrictions that apply post-termination and stop departing employees from attempting to poach clients, employees, and/or suppliers for a certain period.

 

Such restrictions are only enforceable to the extent that they constitute a proportionate means of protecting a legitimate business interest. So a blanket ban on working for a competitor is unlikely to be enforceable. However, a time-limited restriction against approaching key clients with whom the departing employee had dealings with on behalf of the employer is likely to be enforceable.
 

 

21. Grants and incentives for foreign firms located in the UK

21.1    Grants

 

Grants are available for a variety of projects but there are different schemes for specific purposes. However, grants are usually not available for use as working capital. All grants have specific terms and conditions that must be followed, failing which may cause the grant to be withdrawn and to be returned.

21.2    Criteria

 

There are 4 main criteria that a business will have to meet to be eligible for a grant:

 

21.2.1    Location:  depending   on   the   criteria   of   the   scheme,  the   business   may have to be located within a specified part of a local district or region to be eligible for assistance.

21.2.2    Size:  almost  all  grants   have   a   limit   on   the   number   of   employees   a business can have in order for it to qualify for assistance. Most grants are limited to small or medium-sized enterprises, typically those with fewer than 250 employees.

21.2.3    Industry: many grants  target specific sectors that are  in need  of assistance,
e.g. manufacturing or service industries. It is important to note that not every type of business will be eligible for every grant available in its area, and it is common for retail businesses to be ineligible for financial assistance of this nature.

21.2.4    Purpose:   grants   are   often   awarded   for   a   specific   purpose   such   as increasing employment or developing export markets. Grant bodies prefer to see specific targets and results – often compatible with their own objectives.
 

21.3    Local, national and European grants

 

Different grants are available at different levels for example:

 

21.3.1    Local  /  Regional  Level: grants  may  be  available  from  organisations  such  as:

(a)    Business Link
(b)    Local Authority or County Council
(c)    Enterprise Agencies
(d)    Government Office for the Region (GOR)
(e)    Regional Development Agency (RDA)
(f)    Chamber of Commerce
(g)    Learning and Skills Council (LSC)

 

21.3.2    National  Level: grants  are  available  from  various  Government  departments and agencies such as:

(a)    Department of Trade and Industry
(b)    The Countryside Agency
(c)    Trade Partners UK
(d)    Department  for  environment,  Food  and  Rural  Affairs  (DEFRA)
(e)    Department of Energy and Climate Change (DECC)

 

21.3.3    European  Level:  grants  are  not  usually  available  directly  to  business  but are provided to local or region bodies