by Simon Simpson
In August 2014, HM Revenue & Customs (HMRC) announced that it had changed its previously published stance on the use of borrowings secured against foreign assets for non-UK domiciled individuals.
Previously, HMRC guidance stated that it was acceptable practice for UK resident (non-UK domiciled) individuals to use untaxed foreign income or capital gains as collateral for borrowings which could then be brought to the UK without triggering a taxable remittance in respect of the collateral. This was on the assumption that the borrowings were made on ‘commercial terms’ and were serviced regularly. This allowed non-UK domiciled individuals to bring funds to the UK that would otherwise be taxable when remitted – for instance to acquire say a UK property.
However, HMRC claimed it was seeing large numbers of arrangements which were ‘not considered to be commercial, and not within the scope of the concession’.
Their revised view, which applied with immediate effect from 4 August 2014, is likely to impact non-UK domiciled individuals who have such borrowings. As a result, any new borrowing arrangements secured against foreign income or gains will be treated as giving rise to a deemed remittance of the security if the borrowings are used in the UK.
Furthermore, existing arrangements could also be caught where remittances under an agreed loan facility are made to the UK now.
If the loans are serviced (or repaid) from a different source of foreign income or gains the repayment will also constitute a taxable remittance (as has previously been the case). However, a double tax charge could now arise.
It is therefore essential that affected individuals with existing borrowing arrangements undertake a review of their position as soon as possible to ascertain their potential exposure to UK tax and to consider possible alternatives, (such as repayment of the borrowing or refinancing from a source of clean capital). HMRC have stated that where individuals with outstanding borrowings provide it with a written undertaking by 31 December 2015 to restructure the arrangement (within certain parameters), and that this is completed by 5 April 2016, no action will be taken.
Of course how readily an individual can access clean capital or otherwise refinance existing arrangements will ultimately determine whether there is any taxable remittance.
Further clarification is expected from HMRC in the coming months as regards any possible grandfathering of existing arrangements on the basis that individuals would have a legitimate expectation to be able rely on previously published HMRC guidance.
There are significant pit-falls for the unwary in respect of restructuring arrangements already in place and BDO can assist in navigating a path.
Simon Simpson is a Tax Director in the International Private Wealth Team at BDO with over 20 years’ experience specialising in the taxation of high net worth individuals (HNWIs) with complex and varied affairs often across multiple jurisdictions.
Simon is a member of the Chartered Institute of Taxation and advises on tax efficient structures to assist in creating and maintaining family wealth, exit and remittance strategies and the tax implications of inbound and outbound migration as well as the more general UK taxation of wealth.