issue: spring 2013 private affairs don t just pay as you earn www.mills-reeve.com the reduced rate of Inheritance Tax: how can it work for you? better to gift than to receive? setting up your own charity getting more than a good feeling gifts to charity: cash only?
hello welcome to the latest edition of Private Affairs editor Matthew Hansell 0121 456 8297 matthew.hansell@mills-reeve.com contents 03 Don t just pay as you earn editorial 04 The reduced rate of Inheritance Tax: how can it work for you? 06 Better to gift than to receive? 07 Setting up your own charity 08 Getting more than a good feeling 10 Gifts to charity: cash only? 12 Team news Welcome to the Spring 2013 edition of Private Affairs. As promised in the last edition, this edition of Private Affairs is all about giving. Firstly, Elizabeth Field from our Norwich office provides some guidance on giving as you earn. Then, Gary Barber from our Birmingham office looks at how the reduction in the rate of Inheritance Tax applies to estates where more than 10 per cent of the net residue passes to a charitable organisation. In our third article, Victoria Thompson and Shabana Sayeed consider some of the unpleasant effects of the tainted donations rules. Helena Jones from our Leeds office writes about how to get more than a good feeling from your donations, setting out how you can make Gift Aid work for you. In our fifth article, Neil Burton and Jennifer Hepburn, from the corporate team in our Cambridge office, consider some of the options if you are thinking of setting up your own charity. Finally, I am delighted to introduce Adam Williams, who has recently joined our Birmingham office, as contributor of our sixth article, on making tax efficient gifts of assets other than cash to charities. If you would like to discuss the issues raised in any of the articles with the contributors, they would be happy to hear from you. Next edition: we look in detail at issues affecting the elderly and the vulnerable.
author Elizabeth Field 01603 693419 elizabeth.field@mills-reeve.com 03 don t just pay as you earn Payroll Giving, or Give As You Earn, is a straightforward and tax efficient way of making regular gifts to charity. While perhaps less well known than other schemes such as Gift Aid, Payroll Giving is available to anyone who pays income tax on their earnings through Pay As You Earn (PAYE), and anyone who receives a company/personal pension where the provider deducts tax through PAYE, provided that the employer or pension provider runs the scheme. Payroll Giving has obvious attractions for charities as they receive regular donations rather than just one-off payments, allowing them to budget more effectively. It also assists with cash flow: the charities receive the full amount immediately, rather than having to wait for tax already paid by donors to be repaid by HMRC, as with Gift Aid. Payroll Giving also has attractions for employers, improving their brand s image with both clients and staff, and helping support their corporate social responsibility goals. However, Payroll Giving has advantages for some taxpayers as well. The scheme is very convenient, with individuals nominating one or more charities to receive a set amount out of their earnings or pension, whether they are paid weekly or monthly. Once set up, the donations are shown on the employee s payslip. Donors can cancel or vary the amount of the payments at any time, although it is not possible to refund any payments which have already been made. The donations are then automatically deducted from the employee s gross pay before the deduction of income tax (but after the deduction of national insurance), for example: If a 20 per cent taxpayer makes a payment of 10, this will only cost him or her 8 If a 40 per cent taxpayer makes a payment of 10, this will actually only cost him or her 6 As you can see, this means that you only pay tax on the amount you actually receive in your pay or pension after the donation. And, for higher rate taxpayers, this is the only scheme which allows charities automatically to receive the full amount of income tax on your gift ie, both the basic rate of income tax and the difference between the basic rate and higher rate of income tax at 40 per cent or 45 per cent. It is recommended that only UK registered charities are chosen, but with 180,000 registered charities in the UK there is likely to be at least one which meets the donor s aims. Although the payment is being made directly by your employer or pension provider to your chosen charity, it is still possible to make your gift anonymous. Payroll Giving schemes are run through specialist agencies (which are themselves charities), rather than by the employers, and there are three main agencies in the UK, which are regulated by HMRC. Although the agent will deduct an administration fee, it can still be cost effective for the charities to receive funds this way otherwise, they have to process Gift Aid declarations themselves in order to secure the tax refund, also meaning they have to wait to receive the tax rebate. Some employers pay the agency s fees allowing the charity to receive the full amount donated. One last point about Payroll Giving payments will stop automatically if the employee leaves employment, so if the employee wants to continue making donations in this way, the employee must make the appropriate arrangements with their next employer. Please note that, although the details contained in this article were correct at the time of going to press, the Government launched a consultation on proposals to reform the Payroll Giving scheme on 24 January 2013 and so various details may change. The deadline for responding to the consultation is 19 April 2013.
04 author Gary Barber 0121 456 8230 gary.barber@mills-reeve.com the reduced rate of Inheritance Tax: how can it work for you? If your estate is worth over 325,000 when you die, Inheritance Tax may be due. From 6 April 2012, if you leave 10 per cent of your estate to charity, the tax due may be paid at a reduced rate of 36 per cent instead of 40 per cent. How the reduced rate works Gifts you make to a qualifying charity during your lifetime or in your will will be exempt from Inheritance Tax. In order to qualify for the reduced rate, you must leave at least 10 per cent of the net value of your estate to a qualifying charity. The net value of your estate is the sum of all the assets after deducting any debts, liabilities, reliefs, exemptions and the nil-rate band. A qualifying charity is an organisation that is recognised as a charity for tax purposes by HM Revenue & Customs. There are different ways that you can own assets; the way that you own those assets and with who affects the way they are treated when deciding whether the reduced rate of tax can apply. To see how much you need to leave to charity to qualify, or whether your estate can pay a reduced rate of Inheritance Tax because of a charitable donation left in a will, you have to work out the value of each of the separate parts of your estate. These are known as components. It's possible that one part of your estate may pay Inheritance Tax at 36 per cent and another pay tax at the full rate of 40 per cent. To work out whether the reduced rate applies, your estate and your assets are broken down into three components as follows: Assets that you own jointly with someone else that pass by survivorship Assets held in trust Assets that you own outright or as tenants in common with someone else It's also possible to merge one or more components to gain the maximum benefit from the reduced rate. Assets to watch out for... Any assets that are classed as joint assets passing by survivorship, or gifts with reservation of benefit, will only qualify for the reduced rate if they are merged with another component that qualifies for the reduced rate of Inheritance Tax. Calculating the reduced rate Inheritance Tax some examples Example 1 One estate component Robert died on 17 June 2012 leaving a net estate valued at 750,000. He leaves 50,000 to the National Trust in his will. 1. 750,000-50,000 (donation) = 700,000 2. 700,000-325,000 (Inheritance Tax nil rate band) = 375,000 3. 375,000 + 50,000 (donation) = 425,000 the baseline amount This estate qualifies for the reduced rate of Inheritance Tax because the charitable donation of 50,000 is more than 10 per cent of the baseline amount. The Inheritance Tax payable will be 135,000 compared to 150,000 if Inheritance Tax was paid at the full rate. Example 2 Two estate components Elizabeth died on 17 May 2012 leaving assets owned personally of 750,000. Her will stated that she wanted to leave 10 per cent of her assets to Cancer Research. She held a joint bank account with her son Andrew, which had a balance of 60,000 at death. Both contributed equally to the account so her estate also had joint property assets passing by survivorship of 30,000. The estate therefore contains a survivorship and a general component. The charity donation in the general component is 75,000.
05 General component 1. 750,000-75,000 (donation) = 675,000 2. 675,000 + 30,000 (survivorship component) = 705,000 3. Apportion the nil rate band between the two components: 675,000/ 705,000 x 325,000 (Inheritance Tax nil rate band) = 311,170 4. 675,000 (step 1) - 311,170 = 363,830 5. 363,830 + 75,000 (donation) = 438,830 the baseline amount 10 per cent of 438,830 is 43,883. The general component of Elizabeth's estate therefore qualifies for the reduced rate because she donated 75,000. The reduced rate of Inheritance Tax means that the estate will only pay 130,978.80 compared to 145,532 if it had to pay at the full rate. Survivorship component The joint account passes by survivorship to Andrew, so this component cannot qualify for the reduced rate. Where the amount qualifying for charity exemption in one component passes the 10 per cent test, the beneficiaries of the estate may choose to elect to merge with other estate components to gain the maximum benefit from the reduced rate. The following calculation shows how this can work based on the previous example. 10 per cent of the baseline amount for the general component of Elizabeth's estate was 43,883. So the 75,000 actually being given to charity was more than was needed to qualify for the reduced rate of tax. It may be possible to elect to merge the survivorship component with the general component of Elizabeth's estate so that the reduced rate of tax applies to both components. The following calculations show whether the merged components would qualify for the reduced rate of tax. 1. 30,000 (the survivorship component) + 675,000 (general component) = 705,000 2. 705,000-325,000 ( the nil rate band) = 380,000 3. 380,000 + 75,000 (donation) = 455,000 the baseline amount 10 per cent of 455,000 is 45,500. The merged components of Elizabeth's estate therefore qualify for the reduced rate as the donated amount of 75,000 is more than 10 per cent of the baseline amount. Writing your will to leave assets to charity To avoid the need to continually revise the amount of charitable donations written into wills, it is possible to include a clause to ensure that it will always meet the ten per cent test. Varying a will after a death If you haven t left assets to a qualifying charity or if the donation in your will doesn't pass the 10 per cent test when you die, the beneficiaries of your estate can execute a Deed of Variation to make or increase a donation to charity. Doing so may mean that your estate can then qualify to pay Inheritance Tax at the lower rate.
06 author Victoria Thompson 01223 222558 victoria.thompson@mills-reeve.com author Shabana Sayeed 01223 222215 shabana.sayeed@mills-reeve.com better to gift than to receive? It is one of the beautiful compensations of this life that no one can sincerely try to help another without helping himself. Charles Dudley Warner (Fifth Study, 1872) For most, charitable giving is about helping others and that is reason enough. However, as mentioned in some of the other articles in this edition of Private Affairs, giving can have additional benefits for donors. This is fine in most cases where donors are simply making the most of the tax reliefs available, but there are rules to deal with donors who go too far in seeking to benefit from their gifts. Tainted donation rules The tainted charity donations rules are anti-avoidance provisions aimed at preventing abuse of charities by a perceived small minority of donors who might seek the benefit of the tax reliefs available, and also a financial advantage from the recipient charity. The rules came into force on 1 April 2011 and largely replaced the unpopular substantial donor rules. However the substantial donor rules still apply to gifts made before 1 April 2011 but which come into effect before 1 April 2013. A donation needs to fulfil three conditions before it is considered tainted. Firstly, the donor enters into arrangements with a charity or community sports club (CASC) before or after the donation, and it is reasonable to assume that the donation would have not been made and the arrangements would not have been entered into independently of each other. Secondly, one of the main purposes of the arrangements is for the donor to receive a financial advantage directly or indirectly from the charity. Thirdly, the rules only apply if the donor is NOT a qualifying company wholly owned by a charity or charities, or a non-profit registered provider of social housing. All three conditions also apply to people connected to the donor eg, spouses and civil partners. Examples in practice HMRC provides a number of examples highlighting how it thinks these rules will work: A donor Gift Aids a donation of 100,000 to a hospital after agreeing with the hospital that the donor s son will receive 125,000 of treatment. A company is instructed by one of its directors to make a donation to a charity. The charity gives a commission of 75 per cent of the value of the donation to a trust for arranging the donation. The trust is connected to the director instructing the donation. Other examples where the donation may be treated as tainted include selling, letting or exchanging property, providing services, providing a loan or financial assistance and investing in a business. Consequences If a donation is deemed tainted by HMRC, the donor loses any tax relief on the gift. An income tax charge may arise on the donation, if it was made under the Gift Aid scheme. If the charity was knowingly party to the offending arrangement, it may also need to repay any income tax claimed back from HMRC on the gift. Issues with the rules There is no lower limit for the value of gifts that may be caught by the tainted donation rules, unlike the substantial donor rules, any donation is theoretically open to being challenged. Furthermore, the rules only require a reasonable assumption that the donation would not have been made or the arrangement would not have been entered without the tax relief. Critics have suggested these rules make matched funding, gifts to foreign causes routed through UK charities and even sponsored events conditional on the event being completed potentially tainted donations! The ambit of the rules seem very wide, and, unfortunately, they seem quite likely to catch innocent donations. With this in mind, the tainted donation rules should be considered whenever a donor and a charity enter into transactions that may be linked indirectly to a donation it has received. This is particularly the case where there may be doubt as to whether the related transaction is on a commercial basis.
author Neil Burton 01223 222455 neil.burton@mills-reeve.com author Jennifer Hepburn 01223 222319 jennifer.hepburn@mills-reeve.com 07 setting up your own charity If you have significant resources and want to make a difference, or you have a specific charitable aim or project which no existing charity seems to cater for, you may find yourself considering whether to create your own charity. You should be able to claim the same charitable reliefs and allowances on gifts to your own charity that you could claim if you were making gifts to any other charity. You could even make a gift to your charity under your will, which allows you to take advantage of the lower rate of Inheritance Tax. What is a charity? Essentially, a charity is an organisation established for exclusively charitable purposes for the public benefit. Some well known charitable purposes include the relief of poverty and the advancement of education. However the list of charitable purposes is not exhaustive and new charities with innovative purposes are created each year. To be recognised as charitable, an organisation must also demonstrate that its charitable purposes are for the public benefit. Those in poverty must not be excluded from benefit, and any private benefits received from the organisation by someone who is not a beneficiary of the organisation must be no more than incidental to the carrying out of the organisation s objectives. Most common legal structures The main legal structures used by charities can be divided into those that are unincorporated, such as a trust, or an unincorporated association; and those that are incorporated, such as a company limited by guarantee (CLG), or a Charitable Incorporated Organisation (CIO). At present, the most common form of incorporated structure for a charity is the CLG, although the new CIO structure is expected to grow in popularity. The Charity Commission has been accepting applications to register completely new organisations as CIOs since 10 December 2012. What is the difference between an unincorporated structure and an incorporated structure? The main difference between an unincorporated structure and an incorporated structure is one of legal identity. With an unincorporated structure, the trust or association has no legal personality of its own. This means that, if a trust or an association enters into a lease or employs a person, it is the individual trustees who sign on the dotted line and are personally liable under the terms of the lease or employment contract. With an incorporated structure, the CLG or CIO has its own separate legal identity. If a CLG or CIO enters into a lease or employs a person, it can enter into such contracts on its own behalf. This means that the CLG or CIO is itself liable under the terms of such contracts, rather than its trustees. The availability of limited liability to trustees of CLGs and CIOs can make these structures more attractive than a trust or association, where an organisation is or is becoming involved in substantial contracts. Regulation All charities are regulated by the Charity Commission. Charitable CLGs are also regulated by Companies House. In addition, in order to qualify for the tax reliefs available for charities (and for donors to obtain the reliefs on gifts to charities), a charity must apply to HMRC to be recognised as a charity. What kind of charity to set up? The answer to this question very much depends on the size and activities of the proposed charity. If your charity will be employing staff, leasing premises, or entering into complex contracts for the provision of services, you may wish to consider an incorporated legal structure rather than an unincorporated legal structure. For larger charities with complex financial affairs (especially those with secured loans) the CLG structure may be a more appropriate option than the CIO structure. However, for charities without these kinds of arrangements, a simple charitable trust may be the answer. It s best to take legal advice on this point, once you decide what your charity is going to be doing.
08 author Helena Jones 0113 388 8443 helena.jones@mills-reeve.com getting more than a good feeling Would you like to Gift Aid it? When making a charitable donation, we ve all heard the question would you like to Gift Aid it?, and most of us respond in the affirmative without hesitation. However, how many of us have actually stopped to ask what we are really doing in agreeing to this question, and, more importantly, whether we have made this relief work not only in the charity s favour, but also in our own? What is Gift Aid? Gift Aid is a scheme which was introduced in 1990 to encourage the giving of money to charities and Community Amateur Sports Clubs (although, for simplicity, this article will simply refer to charities). When you make a cash gift to a charity and you agree to Gift Aid it, the gift for tax purposes will be presumed to have been received by the charity net of basic rate tax, and the charity receiving the donation, provided that they are recognised as a charity by HMRC, will be able to claim back from HMRC the value of the basic rate tax on the gross sum of the money donated. This means that, as basic rate tax is currently 20 per cent, for every 1 donated to a charity which can claim benefit from the Gift Aid scheme, the charity receives 1.25. It is worth noting that memberships, subscriptions and sponsorships may qualify for Gift Aid, as may bids at charity auctions and fund raising events, subject to certain conditions. Making Gift Aid work for you In addition to the warm glow which a Gift Aid donation can give a donor, the scheme also allows a higher or additional rate payer to claim tax relief on the difference between their rate of tax and the basic rate on the grossed-up donation. Below is a simple example with a gift of 100: Higher rate payer (40 per cent) Charity receives 100 gift and claims back 25 tax from HMRC. The donor can claim 25 in relief (the difference between the basic and higher rate of income tax at 40 per cent) making the cost of the donation to the donor just 75 ( 100 25). Additional rate payer (45 per cent) Charity receives 100 gift and claims back 25 tax from HMRC. The donor can claim 31.25 in relief (the difference between the basic and additional rate of income tax at 45 per cent) making the cost of the donation to the donor just 68.75 ( 100 31.25). The Gift Aid scheme can also assist a donor if he/she is eligible for the Age- Related Personal Allowance, the Married Couple's Allowance or for tax credits, subject to the limits that apply. This is because the value of the Gift Aid donation, plus the basic rate of tax on it, is a deductible amount from the total of your income before the level of the allowance or credit is calculated. So, the allowance or credit is calculated based on this reduced figure, and the value of the allowance or credit therefore increases. Careful, there s a catch... Gift Aid is based on the principle that you have paid sufficient Income and Capital Gains Tax to cover the total value of the Gift Aid claimed by all the charities to which you have made donations in a particular tax year. If you have not paid sufficient tax, then HMRC will ask you to account for the difference! Additionally, apart from the tax reliefs set out above, there are limits to the valuable benefit a donor can receive in return from a charity when making a gift subject to the Gift Aid scheme. If the limits are exceeded, this can limit the availability of the reliefs usually afforded by the Gift Aid Scheme. A valuable benefit is any item or service associated with the donation, which is provided by the charity (or a third party connected to the charity) to the donor or a person connected to the donor.
09 A valuable benefit arises if: The gift is not a payment of a sum of money The payment is subject to repayment conditions The payment is a donation under the payroll giving scheme The payment is deductible in calculating the donor s income The payment is related to arrangements involving the acquisition of property by the charity from the donor (or persons connected to the donor) Any benefits associated with the gift breach certain limits, which are set out below: Despite the guidance provided by HMRC, valuable benefit is not always clear and some gifts might seem like they can be Gift Aided when they can t for example, funding a trip or excursion when someone you know is going on it will require an assessment as to whether Gift Aid is possible. Professional advice should be sought if there is any doubt. What will the charity need? You will need to complete a Gift Aid declaration for every donation given, or one to confirm a series of gifts. The only exception to the declaration rule is if HMRC has approved the charity for simplified procedure from 6 April 2013, whereby, certain charities will be able to claim Gift Aid on up to 5,000 of cash gifts (with individual gift limits of 20) without a declaration; however for most charities, a declaration will be required. What should you do? If you are a higher rate tax payer, or receive the allowances and tax credits mentioned earlier in this article, then you should let HMRC know about your Gift Aided donations in your annual tax return, so as to benefit from the reliefs available, or an increased level of allowance or tax credits. If you haven t paid enough tax in the tax year in which the gift was made, you can carry back the donation as if it was paid in the previous tax year, but the request to carry back the donation must be made at the time of submitting your tax return for the tax year in question. Amount of donation 0 100 101 1,000 1,001+ (made between 6 April 2007 and 5 April 2011) 1,001+ (made on or after 6 April 2011) Maximum value of benefits 25% of donation 25 5% of donation (up to a maximum of 500) 5% of donation (up to a maximum of 2,500)
10 author Adam Williams 0121 456 8420 adam.williams@mills-reeve.com gifts to charity: cash only? Some people obtain sponsorship to grow magnificent moustaches for Movember ; others leave legacies in their wills. There are lots of different ways of giving cash to charity. People will often also willingly pile their unwanted Christmas gifts into a bag and take them down to their local charity shop. But what about more substantial non-cash assets? Happily, for those considering giving shares, or land and buildings to charity during their lifetimes, there are attractive income tax (IT) and capital gains tax (CGT) reliefs available, in addition to the Inheritance Tax exemption. IT relief IT relief may be available when an individual makes an outright gift of shares, land or buildings to charity, or sells these types of assets to a charity for less than their market value. In order to qualify for the relief, the donor must have an income tax liability for the tax year in which the asset is being given to charity; this type of income tax relief cannot be carried backward or forward. The following conditions must be met for the relief to be obtained: 1.The type of asset being given must qualify for the relief The type of shares that can be given in order for the relief to apply must be one of the following: Shares or securities that are listed on any recognised stock exchange. This includes London and Plus Listed in the UK and any recognised overseas stock exchange. Shares or securities dealt in on any designated market in the UK. The only markets so designated currently are the Alternative Investment Market (AIM) of the London Stock Exchange and the PLUS-Quoted market of PLUS Markets. Units in an Authorised Unit Trust (AUT). Shares in a UK Open-Ended Investment Company (OEIC). Holdings in certain foreign collective investment schemes - generally schemes set up outside the UK that are similar to AUTs and OEICs. In relation to land and buildings, a "qualifying interest" in land in the UK, meaning a freehold or leasehold interest in land, must be given. It is the whole qualifying interest that must be given away. This means that if two people own a property jointly, then they will both have to dispose of their interest at the same time in order to transfer a qualifying interest to the charity. Similarly, an individual cannot transfer land and continue to live on that land; the whole of his or her interest must be transferred. 2. The transfer must be an outright gift or a sale an undervalue Once the donor has established the type of asset that is going to be given to charity qualifies for the relief, he can consider whether the asset is going to be given as an outright gift (that is, for no consideration at all) or sold to the charity for less than the market value. Market value is defined by the Revenue as the price that the asset might reasonably be expected to sell for in an open market. If the individual makes an outright gift of the asset, the calculation for the relief is based on: The total value of the asset at the time of the transfer, plus any incidental costs of disposal, less any money or other benefit given to the individual (or connected person) by the charity.
11 For example: Fred wants to give a property worth 200,000 to a particular charity. The professional costs incurred in transferring the property to the charity come to 500. The total value of the gift to the charity is therefore 200,500. This means that Fred can deduct 200,500 from his income tax liability for the tax year in which the transfer is made to the charity. Alternatively: Fred decides to sell the property worth 200,000 to the charity for less than the market value for 50,000. The professional costs incurred in transferring the property to the charity still come to 500. The total value of the gift to the charity is the sum of the property's value and the incidental costs of disposal (coming to 200,500), less the proceeds of sale received from the charity ( 50,000). This means that Fred can deduct 150,500 from his income tax liability for the tax year in which the transfer is made to the charity. CGT relief CGT relief is available on a gift of any asset other than cash to a charity. If an individual gives shares, land or buildings to a charity as an outright gift or for less than it cost to purchase the asset in question, then he is treated as making no gain or loss in respect of that disposal. However, if the individual sells the asset to a charity for less than the market value but more than the asset cost him in the first place, then CGT will be payable in respect of the difference between the purchase price and selling price, subject to the deduction of allowable costs. For example: Steven purchases a property for 300,000. He subsequently spends 20,000 on improvements. The market value of the property, after these improvements, rises to 350,000. Steven then sells the property to a charity for 325,000. The difference between the purchase price and sale price (Steven's chargeable gain) is 25,000. However, the 20,000 spent on improvements is classed as an allowable cost. This means that Steven will only have CGT to pay in respect of the remaining 5,000. Practical considerations If considering a gift of shares or land, always talk to the recipient charity first to make sure it is able to accept the gift! Most probably can, but some smaller charities might not be able to do so. If the charity can't accept the gift itself, that need not be the end of your philanthropic impulse. The charity may ask you to sell the item on its behalf, and donate the proceeds of sale. Provided you get this instruction in writing from the charity, you should still be able to claim the available reliefs, even though the asset is still in your hands when sold.
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