The Proposal to Resolve the Loan Charge

We, a group of independent tax professionals, are asking the Government to  resolve the problem of historic disguised remuneration (DR) schemes that has led to the Loan Charge debacle.   The Loan Charge imposes a charge to income tax, at current marginal rates, on all loans made to individuals pursuant to a DR scheme between 9 December 2010 and 5 April 2019 and which were outstanding immediately before the end of 5 April 2019.   The tax charge therefore has retrospective effect, and in many cases has amounted to six-figure sums. 

Against this backdrop, we wish to put forward some suggestions for a solution.  

The Loan Charge debacle and why a solution is needed

The Loan Charge has given HMRC the ability to pursue hundreds of thousands of contractors and freelancers for outstanding taxes believed to be due thereunder, or the threat thereof. Because affected taxpayers cannot afford to pay these sums, the situation between HMRC and affected taxpayers has reached an impasse – a view which is supported by evidence from the Low Incomes Tax Reform Group (LITRG).   While we support efforts to tackle promoters of tax avoidance schemes, and the need for a longer-term solution to the growing problem of mass-marketed schemes being used in future, we have yet to see any successful attempt to resolve this particular problem.     

A fresh approach is called for, since affected taxpayers simply cannot afford to pay the taxes HMRC are demanding of them, with no end in sight to their predicament. The taxes being demanded often involve life-changing sums, typically multiples of their current annual earnings (if indeed they are still earning). This has resulted in serious financial hardship, often with devastating consequences for affected taxpayers’ lives and livelihoods. Sadly, this has led to a number of suicides. Ten affected taxpayers are now known to have taken their own lives (this has been confirmed by the Treasury), and there are frequent reports of others who are suicidal. 

We therefore believe that it would be pointless for HMRC to continue pursuing these individuals for the taxes believed to be due from them. Not only would it cause yet further hardship and misery for those affected, but the current deadlock between HMRC and affected individuals, and HMRC’s continued pursuit of them, would only continue to generate negative publicity for both HMRC and the Government, particularly in light of recent Freedom of Information Act (FOIA) disclosures. Clearly, this is neither in HMRC’s nor the Government’s interests, and for the Government and HMRC to continue along this path is self-defeating and unsustainable. 

For these reasons alone, we are asking the Government to act urgently to resolve this situation before we have any more tragedies.  

Proposed solutions

With this in mind, we wish to offer a couple of suggestions for the Government to consider in order to resolve the Loan Charge debacle.  The aim of these suggestions is to provide a path forward that would break this deadlock, relieve affected taxpayers from their current predicament, and ultimately benefit HMRC.   These are:

(i)                 a proposal for a legislative framework that would be preceded by an independent review of the Loan Charge.  The purpose of that review, and the legislative framework that follows, would not only seek to resolve the Loan Charge debacle, but would also seek to address the fiscal consequences of such a resolution; and / or

(ii)              a proposal for a new settlement opportunity, referred to in this briefing paper as a “Disguised Remuneration Settlement Opportunity”, that would enable affected taxpayers to negotiate an affordable settlement with HMRC that would allow them to resolve this matter once and for all, with no further recourse for HMRC.    

We strongly recommend that the Government consider our comments seriously in relation to both of the above suggestions, and to consider implementing at least one of them or a combination of both.   In formulating policies around any legislative framework following a review of the Loan Charge and its effects, we would suggest that the Government take into account our comments in connection with our suggested “Disguised Remuneration Settlement Opportunity”, as we believe they are equally relevant to the policy design of such legislative framework.   They also explain why a solution along these lines is desperately needed.     

Proposed legislative framework for a resolution

We recommend that the Government hold a fresh and genuinely independent review of the Loan Charge, which we note that Labour has already committed to doing and which the Morse review failed to do.  We strongly recommend that the Government honour that commitment and that it do so with a view to resolving the Loan Charge debacle altogether and ending the nightmare for thousands.  We would also suggest that, as an interim measure, the Loan Charge be suspended and that HMRC refrain from seeking to collect tax under the Loan Charge or the threat thereof until an appropriate resolution is found.   

It is important to note that, even if an appropriate resolution is found, it is unlikely by itself to resolve any open enquiries or remove any existing liabilities without the assistance of further measures (whether legislative or otherwise).  With this in mind, we suggest that the Government work with HMRC to implement the conclusions of that review, and that those conclusions consist of a legislative framework that would incorporate the following principles:

1.      That any legislative change to the Loan Charge itself should aim to end the Loan Charge debacle for the benefit of all parties (be it through a repeal of the Loan Charge legislation or otherwise).  

2.      That it be made clear that s684(7A)(b) ITEPA cannot be used to retrospectively remove or deny a worker’s PAYE credit.

3.      That any legislative change allows affected taxpayers who have not yet settled with HMRC to have their outstanding tax liability reduced by any PAYE credit that should have applied.  The PAYE credit here would represent the amount of PAYE income tax that should have been withheld by the person obliged to pay it, which would typically be a (UK-based) employer, but may also be an agent or other intermediary in the labour supply chain, or in some cases, the end client or end user to whom affected taxpayers provided their services.  (Normally, where PAYE income tax is due to be accounted for by an employer, the taxpayer is given a PAYE credit for that tax irrespective of whether or not the employer actually pays it to HMRC.)    

4.      For affected taxpayers who have already settled their tax liability under the Loan Charge or the threat thereof (typically paying significant sums to HMRC), that they be permitted to have their liabilities recalculated so as to give them the benefit of any reinstatement of any PAYE credit previously denied to them.  Such applications could be made (say) within 12 to 24 months after the legislation comes into force.  

5.      That it be acknowledged that those who were arbitrarily switched to a self-employment arrangement for income tax purposes post 9th December 2010 did so without any change in circumstances or role adjustment. HMRC’s removal of the PAYE credit on this basis did not allow for the facts or a true assessment of status.

6.      That a mechanism be introduced to not only treat the write-off of a Loan Charge loan as an event with no inheritance tax consequence, but also one that does not pass through a Part 7A gateway (so that the write-off does not count as a “relevant step” that would trigger income tax under Part 7A).    (Note that the inheritance tax aspects do not necessarily need a technical solution: HMRC simply need to accept that the loans have no value and therefore no gratuitous benefit is conferred by the write-off of the debt, nor is there a transfer of value for inheritance tax purposes.)

7.      To ensure that creditors of record, third party debt collectors, insolvency practitioners and their advisers are legally prohibited from pursuing repayment of Loan Charge loans.   This may require new legislation.  

When it comes to recovering the costs involved in resolving the Loan Charge debacle through the above-mentioned framework, the Government should look into the possibility of taking action against those who promoted, operated and profited from the DR schemes that are currently subject to the Loan Charge and associated HMRC actions.  The Government must look at the whole supply chain and the role of all parties and who benefited, with many contactors working to benefit their end clients/employers rather than the contractors themselves. The Government must also look at the legal position that would have applied absent the Loan Charge, bearing in mind that that it is unfair to retrospectively transfer the tax liability to individuals who believed (and had been told) that they had been paying the correct amount of tax.

A “Disguised Remuneration Settlement Opportunity”

In conjunction with the above-mentioned legislative framework, or as an alternative, we recommend that the Government work with HMRC to introduce a “Disguised Remuneration” (DR) settlement opportunity, as they did for the (now closed) Employee Benefit Trust Settlement Opportunity (EBTSO), but on different terms. Any DR settlement opportunity should promptly resolve open enquiries and encourage affected taxpayers to settle unprotected years on individually negotiated terms, thus ensuring finality for affected taxpayers. It should also be affordable, easy to understand, and ensure that where an individual had tried in the past to be compliant, they are given credit as appropriate. In this vein, we would recommend that HMRC consider making proportionate adjustments to sums being demanded from affected taxpayers who have already settled with HMRC on a less generous basis, or who are continuing to do so.

Our  proposed settlement opportunity would not be intended for individuals who knowingly took a risk with a tax avoidance scheme, but for contractors and freelancers – gig economy workers – many of whom were either inadvertently dragged into these schemes or who were inadequately advised of the risks. These people are now facing unaffordable and often life-changing tax bills. We do not think the Government or HMRC could possibly have intended for the tax system to penalise this group of people so heavily. These people are the lifeblood of our economy, and many of them have also missed out on Coronavirus Job Retention Scheme (CJRS) and Self- Employed Income Support Scheme (SEISS) support.

The vast majority of those affected by the Loan Charge took and followed professional advice. Surveys have shown that the main motivation for contractors was not to seek to avoid tax, but rather to avoid the danger of being deemed to be “inside IR35” and the lack of clarity about how to structure freelance work. Unsatisfactory legislation has thus played a key role in the whole Loan Charge debacle and it now needs Government intervention to resolve this, not only to end the nightmare faced by thousands of families who cannot pay the sums being demanded, but also for HMRC, for whom the cost of, and resources involved in, implementing and defending the Loan Charge has been significant, with relatively little gain in terms of revenues.    

The case for a “Disguised Remuneration” settlement opportunity

There are six reasons why we think that a “Disguised Remuneration” settlement opportunity (and/  a legislative framework for an appropriate resolution to end the Loan Charge debacle) would be a sensible way forward.

1. Agencies or end users should have operated PAYE

The first of these reasons is that the agencies involved in these DR schemes should have operated PAYE in the first place, according to the relevant legislation and case law. More specifically, HMRC could have (and should have) used the agency provisions of section 44 ITEPA 2003 to collect the PAYE income tax that was legally due from the agencies, rather than simply resort to applying the Loan Charge in the first instance. Had HMRC enforced the agency provisions of section 44 ITEPA 2003, not only would HMRC have likely raised more revenue than the sums involved in the Loan Charge and related demands, but also the individual users would have had a PAYE credit to fully offset their income tax liability (whether under the Loan Charge or otherwise), and the entire Loan Charge debacle could have been avoided.

In addition, even though (according to the Court of Appeal in Hoey) HMRC are legally able to exercise their discretion to retrospectively disapply the operation of PAYE under S.684(7A) ITEPA[1] and have been doing so under their policy of forgiving those businesses who did not adequately apply due diligence to their labour supply chains and were therefore unaware of offshore parties within them, we believe that such discretion should only be done after a thorough and complete investigation of the facts.   Because it would be time consuming and resource-intensive for HMRC to do this, they are taking a blanket decision to retrospectively disapply PAYE regardless of the facts.   We respectfully disagree with the Court of Appeal in allowing HMRC such a broad discretion under section 684(7A) as it effectively allows HMRC to disapply the PAYE Regulations regardless of the circumstances.  This not only produces unfair outcomes for affected taxpayers, but also undermines the entire design and purpose of the PAYE Regulations, which is to confer the primary responsibility for paying employment income tax on (actual or deemed) employers save in exceptional circumstances.  The implications of the Court of Appeal judgment in Hoey effectively allow HMRC to disapply the PAYE Regulations whenever it likes.  Not only is this unfair, but it also does not accord with the Upper Tribunal’s statutory interpretation of section 684(7A)[2], which is that section 684(7A) should only apply on a prospective basis (i.e. before any PAYE obligation has been established).  Furthermore, as Mr Hoey’s case demonstrates, it permits HMRC to recover tax in respect of those periods (pre-9 December 2010) contrary to the ethos of the Morse report which concluded that there was no justification for any retrospection prior to that date.

With this in mind, we feel that HMRC could have (and should have) collected PAYE income tax under sections 689 and 710 ITEPA from the end clients/ users to whom contractors were providing their services, rather than going after the contractors in the first instance – and that any settlement should reflect that.   Again, had HMRC enforced these provisions in the first place instead of applying the Loan Charge, HMRC could have collected the tax due, and the Loan Charge debacle could have been avoided. 

On this basis, we feel that a DR settlement opportunity (and/or legislative framework for an appropriate resolution to end the Loan Charge debacle) should include terms reflecting the fact that agencies or end users (as appropriate) should have paid the required PAYE and NICs and should also recognise the fact that HMRC failed in their duty to collect it when they could and should have done. As the Loan Charge APPG has previously suggested, due to the circumstances surrounding the use of the schemes now subject to the Loan Charge, the tax burden should not fall solely on the individual users of these schemes, but  also on other parties in the labour supply chain who benefited from the schemes, including (but not necessarily limited to) the promoters of these schemes  –for the reasons explained above, with HMRC accepting lower tax sums as an acknowledgement of their own failures to collect PAYE from the agencies.

2. DR schemes were mis-sold to affected taxpayers

The second of these reasons is that the vast majority of affected taxpayers were genuine victims of mis-selling, rather than deliberate tax avoiders. While we acknowledge and appreciate the difficulty in distinguishing between the two groups, there is plenty of evidence to suggest that mis-selling occurred on a sufficiently widespread scale to the point where, in our view, HMRC and the Government should be able to justify automatically admitting any taxpayer who considers him/herself to have relied on a promoter’s statements in good faith, or to have been inadvertently caught up in one of these schemes, as a suitable candidate for our suggested  settlement opportunity. The widespread nature of the mis-selling is evidenced in part by an APPG survey (May 2021) which shows that the promoters or scheme operators either made claims along the lines of ‘tax law compliant’; or ‘QC approved’ that turned out to be hollow or false, or otherwise failed to mention or adequately draw the taxpayer’s attention to the potential risk of challenge by HMRC (and even where mentioned, representations were made to the effect that this would all be dealt with by the scheme operator). 

In this vein, we would also recommend that HMRC not insist that the taxpayer candidate provide written proof of mis-selling, since many of those affected will no longer have the paperwork to prove that they were victims of mis-selling. Although we acknowledge that the risk of claims made by taxpayers with tax avoidance as their main motive cannot be completely ruled out, we feel that the benefits of a DR settlement opportunity would far outweigh any risk of claims of that nature.

Therefore, as emphasised above, we strongly recommend that the sum to be levied pursuant to a settlement opportunity  be genuinely affordable (and significantly lower than any other settlement opportunities). In practice, this would mean HMRC collecting only a proportion of the tax that HMRC believed is due. This proportion should also reflect the reality that the vast majority of affected taxpayers were genuine victims of mis-selling, rather than deliberate tax avoiders.   Any settlement opportunity should also accept that, whilst the individuals concerned would have paid some more tax had they structured their arrangements differently, there is clearly significant fault on the part of (a) scheme promoters/operators, who recommended these schemes and (b) HMRC, for failing to collect PAYE from employers, failing to properly shut down these schemes and failing to adequately warn people not to use them at a time when such a warning was needed, rather than after the fact. Rather than the current patently unjust situation in which scheme users are the only ones being punished and are being asked to contribute sums many simply cannot pay (and many more cannot do so without selling their home or remortgaging, raiding their pension etc. or borrowing money) a fair and final resolution along these lines would acknowledge that the whole situation was a mess and fault should not be attributed– nor tax bills charged – only to those who used these schemes and in good faith.

In addition, unlike previous settlement opportunities, we strongly recommend that HMRC and the Government not insist that people admit fault or make a declaration of guilt as a precondition for using such a settlement opportunity. When so many people were mis-sold these arrangements (with some having been effectively coerced into using them as a condition of engagement, and others having no knowledge of the fact that they were being “sold” anything at all), we feel that it is wrong to force people to give a false admission that they are deliberate tax avoiders. Many taxpayers who would otherwise have been suitable candidates for previous settlement opportunities were in the end unable to settle with HMRC, as making such a declaration could or would have negatively affected their job prospects, as some sectors would not engage or employ anyone who admitted to deliberate tax avoidance. We therefore strongly recommend that HMRC and the Government consider this recommendation seriously and accept the reality that the proliferation and mis-selling of DR schemes was the fault of several parties other than the taxpayers to whom these schemes were sold, and that any settlement opportunity reflect that reality as part of a fair and final resolution.

3. Scheme users under the Eclipse Settlement Opportunity have thus far been treated more favourably than DR scheme users

The third of these reasons is that the recent Eclipse Settlement Opportunity suggests that HMRC have been willing to accept less tax (in the form of clawed-back reliefs) in exchange for not pursuing affected taxpayers for what would have been significant “dry” income tax charges. In that sense, our “Disguised Remuneration Settlement Opportunity” proposal is asking for something similar, except that the quid pro quo would be for HMRC to accept an individually negotiated percentage of the tax believed to be due on outstanding loan balance in exchange for not pursuing affected taxpayers either for tax under the Loan Charge or for the full tax which HMRC believed to be due. Although these taxes are not technically “dry” tax charges, the underlying principle is the same as that of the Eclipse settlements, in the sense that affected taxpayers simply do not have the cash to pay the full tax believed to be due; and for HMRC to insist otherwise would result in even more bankruptcies and undue financial hardships– something that HMRC was keen to avoid in relation to the Eclipse scheme users. Furthermore, if HMRC was willing and able to grant a settlement opportunity of this nature to Eclipse scheme users who knowingly entered into a tax avoidance scheme, then all the more reason why we would strongly encourage HMRC to consider a settlement opportunity as outlined above for DR scheme users who did not knowingly enter into a tax avoidance scheme.

We therefore believe that there is considerable merit in implementing a settlement opportunity for DR scheme users, particularly as HMRC have recently implemented the (now closed) settlement opportunity for remuneration trusts and we understand are considering implementing settlement opportunities for enterprise zone relief schemes.

4. Lack of closure and finality with the Loan Charge

The fourth reason why we think a settlement opportunity (and/ or a legislative framework for an appropriate resolution to end the Loan Charge debacle) should be considered is that paying the Loan Charge (or settling to avoid it) does not resolve the underlying tax dispute, and thus does not give the taxpayer any sense of closure or finality. This is not only unfair, but also cruel; as it means that affected taxpayers, even after they have paid HMRC life-changing sums, know that HMRC is entitled to make subsequent demands. For this reason, we strongly recommend that the settlement opportunity involve closure of all outstanding related tax enquiries and related Accelerated Payment Notices, and should include wording to confirm that, in accepting a  settlement opportunity, HMRC undertakes to close the matter once and for all, without further recourse to the affected taxpayer – thus ensuring finality for the taxpayer. In particular, if settlement is reached, the subsequent release or writing-off of all such loans and any liability to pay interest on them should not then be treated as a chargeable “relevant step”, or the taxable value of any such relevant step should be reduced to nil.   

Indeed, rather worryingly, we are hearing of cases where HMRC are advancing arguments in some cases which are diametrically opposite to those being advanced by them in other cases. The inevitable conclusion is that HMRC are willing to run any argument that suits them in any instance in order to maximise the possible tax-take. For this reason, it is essential that any settlement provides a complete resolution and does not afford either party an opportunity to make subsidiary claims on the other.

5. Request for legislation to protect affected individuals from “loan” repayment demands, and to address the uncertainty surrounding the inheritance tax position

Finally, many creditors of record have been seeking to enforce repayment of what they believe to be outstanding loans due from affected taxpayers. Because the “loans” are treated as earnings for tax purposes, and an enforceable debt claim for contract law purposes, it puts affected taxpayers in the worst of both worlds. For this reason, in addition to a “Disguised Remuneration Settlement Opportunity” described above, we strongly recommend that the Government consider implementing legislation to protect affected taxpayers from such “loan” repayment demands by the creditor of record where the “loan” in question is also subject to tax as earnings. In this vein, we draw your attention to the remarks made by the Chartered Institute of Taxation (CIOT) in their 30 September 2021 Budget Representation.   We would also suggest that HMRC work with the Insolvency Service to provide clear guidance to prevent liquidators from pursuing individuals for repayment of DR scheme loans previously granted to them by a company that has subsequently gone into liquidation.

To avoid the complexity and uncertainty surrounding the inheritance tax (IHT) position for affected taxpayers, we would also recommend that, where the DR scheme in question makes use of an Employee Benefit Trust or a Relevant Property Trust, HMRC agree to exclude these “loans” from settled property for IHT purposes, whether or not a demand for their repayment has been made and whether or not the “loan” has been written off. 

6.      The “tax savings” were taken by the promoters

Finally, it must also be remembered that the missing tax was generally taken by the promoters as fees (although typically disguised as “tax and fees” to give the taxpayers the false impression that tax was being accounted for on their earnings).  Most affected taxpayers were used to operating through a limited company and subject to corporation tax in the region of 20% payable on their profits.  The fear of IR35 led many into these schemes with the promoters not only promising an IR35-proof arrangement but also the administrative support offered by umbrella companies.  However, whereas an umbrella company typically deducts 1 to 2% of a worker’s earnings by way of fees, the promoters deducted about 18%.  In the taxpayers’ eyes, these were assumed to be largely tax, but very little (if any) tax was actually accounted to HMRC by the promoters.  As the affected taxpayers were no longer operating through a limited company, the tax due on the earnings would often be up to 40% of the earnings (the higher rate of income tax) and this has been the basis of most demands now being made by HMRC.  However, not only would these demands have come as a shock to most taxpayers, a large slice of the tax now being demanded has already been deducted and pocketed by the promoters.   What’s more, many affected taxpayers have ended up no better off financially from having used a DR scheme than they would have been had they simply been paid a bonus and taxed in the normal way, simply because the promoters pocketed significantly higher margins and reduced their employment costs[3].

The benefit to HMRC in implementing either or both of our proposals

Our proposals and recommendations offer a straightforward solution to the problems created by the Loan Charge debacle and the proliferation of DR schemes.  Not only do they offer welcome respite for affected taxpayers, but would also be of immediate benefit to HMRC. A settlement opportunity of this nature and / or a legislative framework for an appropriate resolution to end the Loan Charge debacle would not only free up HMRC resources for other areas but would also secure a better practicable return for the Exchequer in terms of future revenue flows, since it would allow affected taxpayers to continue working and to pay taxes in future.  From HMRC’s perspective, this surely must be preferable to the current situation in which affected taxpayers are forced into bankruptcy, unable to find work and/ or are relying on benefits.   For these reasons, we believe that our proposal is fully compliant with HMRC’s Litigation and Settlement Strategy (LSS).  In particular, we acknowledge and agree that resolving tax disputes means “establishing the right tax liability, fairly and even-handedly across all taxpayers, in a way which minimizes unnecessary costs” which we acknowledge and agree should not involve HMRC making compromises on what it believes to be the right tax liability consistent with the law.   Our proposals do not represent a compromise of that nature. Rather, we believe they offer an alternative solution that is consistent with the law and that ultimately secures the best practicable return for the Exchequer.  

We also wish to emphasize that our proposals should not be seen as letting affected taxpayers off the hook in a way that would result in unfairness to the rest of the taxpaying public, since affected taxpayers haven’t done anything wrong except be in the wrong place at the wrong time.   Insofar as there are any lessons to be learned here, they have nothing to do with taxpayer non-compliance and everything to do with the fact that there are unscrupulous promoters of DR schemes who will do anything to maximize their own profits at the expense of these taxpayers, with little regard for the consequences.   The historic and continued use of DR schemes shows that the Loan Charge has not had the desired deterrent effect on avoidance, evasion or other forms of non-compliance.   But we are not talking about taxpayer behaviour in this case.  The very fact that these DR schemes are still being used tells you a lot more about promoter behaviour than it does about taxpayer behaviour.

Recommendations for HMRC and the Government to consider

To implement the recommendations outlined above, we recommend that HMRC engage with the Loan Charge Action Group (LCAG) and others, including CIOT and the LITRG, to find a solution that would be acceptable both to HMRC and to taxpayers facing the Loan Charge, with the discussions supported by the Chartered Institute of Taxation (CIOT) and the Institute of Chartered Accountants in England and Wales (ICAEW) as necessary to ensure that both sides listen to each other.