Offshore Survey – January 2012

  • Cayman directors found personally liable for $111 million each
    • 26 August 2011, the Grand Court of the Cayman Islands found two directors of a failed hedge fund guilty of “wilful neglect or default” in exercising their supervisory powers as directors and, for the first time, made them personally liable for corporate losses. They were ordered them to pay $111m each in damages to the fund’s liquidators.

      In Weavering Ltd v Peterson & Ekstrom, the Weavering Macro Fixed Income Fund had been incorporated in the Cayman Islands in 2003 as an open-ended investment company with a share listing on the Irish Stock Exchange (ISE). The investment manager was Weavering Capital (UK) Ltd, which was indirectly owned and controlled by Magnus Peterson, a former head of global trading at Swedish bank SEB.

      In March 2009 the Fund went into liquidation after it emerged that $637 million out of the $639 million actively traded was held, in breach of the fund’s investment criteria, in a single position with another Weavering vehicle based in the BVI, also controlled by Magnus Peterson.

      ISE rules required the appointment of two independent directors to the board. Peterson appointed his younger brother, Stefan Peterson, and their 79-year-old stepfather, Hans Ekstrom. Established as a limited company, the fund’s directors were fully indemnified in respect of corporate losses, unless as a result of “wilful neglect or default”.

      The Court heard that Peterson and Ekstrom “went through the motions of appearing to hold regular quarterly board meetings” and “provided an ‘administrative service’ in that they signed documents or took responsibility for documents when asked to do so by Magnus Peterson without making any enquiry or attempt to understand their content.”

      The Court found that Peterson and Ekstrom had wilfully neglected their duties as directors or defaulted in their discharge of them. Being aware of the existence of a duty to supervise the fund’s affairs, they had done “nothing, and carried on doing nothing for almost six years”. They had failed to discharge their duties by “signing whatever documents that were put in front of them without reading them, or, if they did read them, without applying their minds to their content.”

      Had the directors discharged their duties correctly, said the Court, the fund’s financial position and breach of its own investment criteria would have been identified by the board, and the fund put into liquidation at a much earlier stage. The net losses flowing from this failure were assessed by the court be not less than $111 million. Damages were awarded against each defendant in that sum.

  • Curaçao approves new corporate regime
    • 15 September 2011, the Curaçao Parliament approved legislation as part of the island’s tax reform process following the 2010 dissolution of the Netherlands Antilles that resulted in Curaçao becoming an autonomous territory within the Kingdom of the Netherlands. The changes generally came into force on 1 January 2012.

      The overall tax regime remains broadly similar to that of the former Netherlands Antilles, but certain areas have been specifically amended to improve the investment environment and boost international competitiveness.

      The corporate income tax rate of 34.5% will be reduced to 27.5% and the government has said it intends to reduce the rate further to 15% for 2013 and 2014. Under the new rate, the current 70% participation exemption would result in an effective tax rate below 10%, potentially triggering anti-avoidance rules in other tax jurisdictions. The exemption was therefore reduced to 63%, to give an effective tax rate of 10.175%.

      The reform package provides for a new “transparent limited liability company” that is disregarded for Curaçao corporate income tax purposes, with all of its income and assets allocated to its shareholders. Transparency will be granted only upon application to either a public limited liability company (NV) or a private limited liability company (BV). This must be submitted by or on behalf of the company’s board of directors and must contain a written power of attorney from each shareholder. If transparent status is granted, the company will not be eligible for benefits under a tax treaty.

      To increase the flexibility of Curaçao private foundations, which are currently not subject to tax on income unless they carry out active business operations, the reform measures include a provision that will allow a private foundation to opt to be treated as an entity subject to corporate income tax at a rate of 10%. This is designed to make foundations more attractive for use in organisational structures involving jurisdictions that impose a subject-to-tax requirement and will also allow a foundation to benefit from the participation exemption.

      Curaçao also plans to enact a Trust Ordinance that will make it possible to establish a trust under a trustee’s authority for beneficiaries or for a particular cause. When this legislation becomes final, trusts will be able to elect to be subject to a corporate income tax rate of 10% (as is the case for private foundations under the reform measures).

      The Netherlands Antillean Guilder remains in place but the government intends to replace it with the Dutch Caribbean Guilder.

  • EC adopts proposals on cross-border inheritance tax
    • 15 December 2011, the European Commission adopted a package on inheritance taxation intended to provide comprehensive relief for double or multiple-taxation. Its Recommendation “suggests” how EU member states could improve their national double inheritance tax relief provisions.

      Algirdas Šemeta, Commissioner for Taxation, said: “The burden of cross-border inheritance tax can be crippling for citizens, due to discrimination and double taxation. Small changes in member states’ rules to make them more coherent with each other could deliver real benefits for hundreds of thousands of people across Europe. This is what we aim to achieve.”

      The EC’s Communication highlighted two main problems concerning cross-border inheritance tax in the EU: double or multiple taxation, where more than one member state claims the right to tax the same inheritance; and discrimination, where some member states apply a higher tax rate if the assets, the deceased or the heir, are located outside their territory.

      Divergent national rules, a shortage of bilateral inheritance tax conventions, and inadequate national double tax relief measures, it said, can result in citizens being taxed twice or more on the same inheritance. Member states should be free to apply national inheritance rules as they see fit once they are in line with EU rules on non-discrimination and free movement.

      The Recommendation suggests how member states could improve existing national measures to ensure that there is adequate double tax relief. It also sets out solutions for cases in which several member states have taxing rights. The Commission invites member states to introduce the appropriate solutions into national legislation or administrative practices.

      The Commission said it was not proposing any harmonisation of member states’ inheritance tax rules. Instead it was recommending a broader and more flexible application of national double tax relief measures to provide a pragmatic and cost-effective solution.

      The Commission is to launch discussions with member states to ensure appropriate follow up to the Recommendation and is ready to assist in bringing their inheritance laws into line with EU law. In three years time, it will present an evaluation report showing how the situation has evolved, and decide whether further measures are necessary at national or EU level.

  • EC sets out plans to eliminate double taxation
    • 11 November 2011, the European Commission adopted a Communication setting out its plans to eliminate double taxation – and double non-taxation – of EU residents by member states which, it said, contradict the spirit of the single market.

      Under EU law, there is currently nothing to oblige member states to prevent non-discriminatory double tax and the Commission said existing measures such as bilateral and multilateral double tax treaties did not provide adequate protection for citizens and businesses due to various shortcomings – too narrow scope, lack of uniformity in provisions, administrative burden and long time-lines for dispute resolution.

      A public consultation carried out by the Commission found that more than 20% of reported cases of double taxation of businesses were worth over €1 million, while for individuals, more than 35% of double taxation cases were worth more than €100,000.

      Algirdas Šemeta, Commissioner for Taxation, said: “Double taxation is one of the biggest tax obstacles to the Internal Market, and can no longer be overlooked.”

      As an immediate first step to strengthen existing legislation against double taxation, the Commission adopted a simultaneous proposal to improve the Interest and Royalties Directive. This aims to reduce the instances of one Member State levying a withholding tax on a payment, while another Member State taxes the same payment.

      Other areas in which the Commission intends to propose specific solutions to double taxation problems include cross-border inheritance tax in the near future and dividends paid to portfolio investors later on.

      The Commission will also work on other possibilities to help eliminate cross-border double taxation, such as creating an EU Forum to develop a code of conduct on double taxation and a binding dispute resolution procedure for unresolved double taxation cases.

      With regard to double non-taxation, which causes considerable losses to public revenues, the Commission said it would launch a consultation to gauge the full scale of the problem. On the basis of this consultation, it would determine the most appropriate and effective measures and come forward with solutions next year.

      The Commission will submit the Communication on Double Taxation to the European Parliament, Council and European Economic and Social Committee for discussion and the Interest and Royalty Directive proposal to Council and the European Parliament.

  • ECJ rules against Gibraltar’s proposed tax scheme
    • 15 November 2011, the European Court of Justice ruled that Gibraltar’s proposal to introduce a two-level corporation tax system in 2002 was illegal. Gibraltar had not implemented the system and subsequently withdrew the proposal, so the ruling does not affect the new business tax regime, which instead imposes a 10% flat tax on profits.

      The proposed regime comprised three separate company taxes – a registration fee, a payroll levy and a property occupation tax – plus a top-up tax on financial services companies fixed at 4 to 6% of turnover.

      In 2004 the European Commission informed the Gibraltar government that the scheme constituted unauthorised state aid from the UK and was illegal under EU law. The EC’s principal objection was that the proposed tax regime would have conferred a selective advantage on offshore companies, which require minimal staff and property and would therefore pay very little corporation tax.

      Challenged by Gibraltar, supported by the UK, the European Court of First Instance was persuaded to overrule the Commission in 2008. The ECJ has reversed that decision. It noted that the very low taxation of offshore companies was not a random consequence of the regime, but the inevitable consequence of a regime specifically designed to produce that result (Cases C-106/09 P, C-107/09 P, Commission v Government of Gibraltar and United Kingdom).

      In a statement the Commission said it “confirms that fiscal regimes engineered to give certain companies, in this case former offshore companies, an advantage, constitutes state aid to the beneficiaries which artificially and harmfully distorts competition in Europe’s single market.”

      In parallel with the EC action, Spain brought another case on grounds of “regional selectivity” arguing that that Gibraltar should have no power to implement its own taxation regime different from that of the UK. This issue was not examined by the ECJ.

      Following implementation of Gibraltar’s new flat tax corporate regime in 2011, the ruling has no practical impact on Gibraltar but it does imply that any fiscal regime designed to allow offshore companies to avoid business taxation preferentially is in violation of EU law.

  • ECOFIN approves “zero-10″ tax for Jersey and Isle of Man
    • 19 December 2011, the European Council of Finance Ministers (ECOFIN) approved the recently revised “zero-10″ tax regimes of Jersey and the Isle of Man, after originally postponing the vote until January.

      The vote came during a meeting of the EU Environment Council and formally ended a process that began more than two years ago, when a review of zero-10 corporate tax arrangements was first announced. It is understood that the matter was brought forward in order to complete all ongoing Code Group business by the end of the year.

      Under zero-10 regimes, most businesses pay no corporation tax, while some industries, such as banks, pay 10% and a few pay 20%. The EU Code of Conduct Group on Business Taxation declared in September that it no longer considered the regimes to be harmful after the deemed distribution provisions in Jersey and attribution regime for individuals in the Isle of Man had both been removed. As a result of these amendments, residents who are shareholders of island companies are required to pay personal income tax on any unallocated company profits.

      Businesses on both islands have been keen to see the zero-10 matter concluded, as uncertainty about corporate tax made long-term planning difficult. Jersey treasury minister Philip Ozouf said: “I hope that this news will be welcomed as a statement of confidence in past decisions but, more importantly, now that approval has been finally secured, in the positive future of our island.”

      Isle of Man Chief Minister Allan Bell said: “The outcome of this process is a further endorsement of the island’s policy of responsive engagement with international scrutiny while always seeking to defend our own strategic interests.”

      On 29 October, the Code of Conduct Group announced that its review into Guernsey’s zero-10 corporate tax regime – introduced in January 2008 – would restart. The Code of Conduct Group began its review in 2009 after the UK Treasury raised concerns about the regime not being compliant with the EU code. It has been on hold since May 2010 after Guernsey’s parliament gave assurances that it would revise the strategy.

  • European Commission to challenge Swiss tax deals
    • 27 November 2011, the European Commission stated that it was set to challenge the bilateral tax agreements signed by the UK and Germany with Switzerland, which are intended to settle long-running disputes over tax evasion by UK and German nationals holding cross-border accounts with Swiss banks.

      EC lawyers concluded that both bilateral deals, which maintain traditional Swiss banking secrecy by regularising accounts without disclosing individual identities, were incompatible with existing EU rules. UK chancellor George Osborne was told that he must renegotiate with Switzerland or face a challenge at the European Court of Justice. Germany, facing domestic political pressure over its deal, was seeking to initiate a new round of talks with Switzerland.

      Under the agreements reached in August and due to enter into force in 2013, persons resident in the UK and Germany would be given one chance to make an anonymous lump-sum tax payment to settle retrospective tax liabilities. The tax rate would vary from 19% to 34% of the assets, depending on the duration of the client relationship as well as the initial and final amount of the capital. The assessment period would begin in 2000. Alternatively, clients could disclose their banking relationship in Switzerland to their home tax authorities.

      Swiss banks would be required to make advance “guarantee” payments of CHF 500 million ($700 million) and CHF 2 billion ($2.8 billion) to the UK and German tax authorities respectively. These payments would be offset by the incoming withholding tax payments under the schemes and refunded to the banks.

      In order to prevent new, undeclared funds from being deposited in Switzerland, the UK authorities would be permitted to submit up to 500 requests for information per year, while Germany would be permitted 750 to 999 requests for an initial two-year period.

      Switzerland regards the bilateral treaties as a blueprint for agreements with other EU members, such as Italy and Greece, but the EC contends that the UK and Germany had no right to agree bilateral deals that, in parts, contradict the EU savings tax directive and the existing EU-Swiss tax agreement, and undermine the negotiating mandate given to the Commission.

      The first indication of the Commission’s displeasure with the UK and Germany came in October, when European tax commissioner Algirdas Semeta told a plenary session of the European Parliament that the bilateral agreements could have put the two countries in breach of their European treaty obligations. He said the Commission was taking the matter “very seriously” and “would not hesitate to take the corrective steps if necessary”.

      The EU is committed to a multilateral automatic exchange of information system, whereby countries hand over confidential data on demand to support tax evasion investigations. In November French minister of economy, finance and industry Francois Baroin was reported to have told Switzerland’s finance minister Eveline Widmer-Schlumpf that France was definitely not interested in a bilateral withholding tax agreement. The US was also reported to have rejected offers of a national withholding tax deal, having already secured data from more than 4,000 UBS bank clients.

      “The Commission has been very clear that areas covered by EU legislation must not be included in bilateral agreements between member states and third countries,” said a spokeswoman for EU tax commissioner. “Commissioner Semeta is confident that they will find a way of addressing the concerns that the Commission has with these agreements, and will work to remove the parts that impinge on EU law.”

  • Guernsey proposes Image Rights Register
    • 29 September 2011, the Guernsey parliament approved a policy letter proposing the creation of the world’s first Image Rights Register. This would enable registration of a registered personality right, a property right, which would also provide rights in the registered personality’s associated images.

      Registerable features of a qualifying personality will include a personal name and any other associated distinguishing indications – voice, signature, photograph, character or likeness – which identify the personality uniquely.

      Qualifying personalities will include any living or deceased natural person and could extend to some non-living entities, such as fictional characters. A registered personality right relating to a living personality will have indefinite duration and can continue to exist after their death subject to regular renewal or validation of registration on the Register.

      There will be creation of exclusive ownership rights which may be enjoyed and protected by the holder of a registered personality right and which may be assigned and otherwise dealt with as personality, subject to relevant registration requirements.

      Drafting time was estimated at about four months and the Commerce and Employment Department, which put forward the plans, said it hoped the legislation would be in place before the London Olympics in 2012.

  • Indian Special Economic Zone gets IFSC status
    • 28 November 2011, India’s Board of Approval for Special Economic Zones approved the establishment of an International Financial Services Centre (IFSC) at the Gujarat International Finance Tec (GIFT) city in Gandhinagar, the capital of the state of Gujarat. This will be a deemed foreign territory in India for export and import transactions.

      The IFSC will enable foreign and Indian banks, non-banking financial institutions, stock exchanges and commodity exchanges to conduct transactions in foreign currencies in India. It will also, for the first time, enable Indian companies to raise funds for overseas acquisition from the banks and financial institutions set up in the GIFT city project.

      The approval is subject to suitable approvals from the Indian government in consultation with the Securities and Exchange Board of India, Insurance Regulatory and Development Authority, the Reserve Bank of India and the Forward Markets Commission.

      Ramakant Jha, director of GIFT, said: “Laws relating to foreign exchange will be relaxed resulting in ease of operation. Coupled with the status of SEZ, the hub will enjoy exemptions from central and state taxes.” According to GIFT estimates, the fiscal year 2010-11 saw foreign exchange transactions worth $80 billion by Indian companies from outside India.

  • Isle of Man Foundations Act gains Royal Assent
    • 16 November 2011, Royal Assent was given to a new Foundations Act, which provides for the establishment of foundations on the Island. Each foundation must be on a public register and have a local registered agent.

      Foundations resemble trusts but also have a separate legal personality, similar to that of a company. They offer greater familiarity for individuals and families from civil law countries, as well as opportunities in commercial legal structures.

      Jurisdictions such as the Isle of Man have been pushing to create foundation structures at a time when trusts, typically a feature of Anglo-Saxon law, have seen some of their benefits erode in places such as the UK. Jersey enacted a foundations law in 2009. Guernsey is drafting a similar law.

      The Limited Partnership (Legal Personality) Act 2011 also received Royal Assent and came into force on 18 October 2011. This provides any new limited partnership, registered under the Partnership Act 1909, with the option of adopting a legal personality that is separate from that of its partners.

      Transitional provisions included in the Act allow existing limited partnerships six months from the date on which the legislation was enacted in which to make an election to continue in existence as limited partnerships with separate legal personality.

  • Malta introduces tax rules for securitisation vehicles
    • 12 August 2011, the government issued the Securitisation Transactions (Deductions) Rules under Legal Notice 324 of 2011, which expand the deductions available to securitisation vehicles and effectively eliminate taxable income in Malta at the level of such vehicles.

      A securitisation vehicle is generally subject to income tax on its income and gains – after allowable deductions – arising in the year in which such income or gains fall to be recognised for accounting purposes.

      Under the new rules, in addition to any relevant expenditure that may be deducted under Malta’s normal tax rules, a securitisation vehicle may also claim deductions in respect of the acquisition price, finance costs, operating costs and a further “optional deduction”, which is an amount equal to any chargeable income still remaining. This effectively reduces the chargeable income of a securitisation vehicle to nil.

      The rules provide that an amount equal to the deductions under the “acquisition price” and “optional deduction” categories would constitute deemed income for the originator or assignor, but provided that the originator or assignor is not resident for tax purposes in Malta, then no Maltese tax would be payable on such deemed income.

  • Mauritius enacts Limited Partnerships Act
    • 15 December 2011, the Mauritius Limited Partnerships Act 2011 came into force, introducing a new legal entity into Mauritius.

      The Act broadly follows the principles of English law. LPs must have at least one general partner and the limited partners will normally have limited liability for the partnership’s debt and obligations provided they take no part in the management of the partnership. The Act is not prescriptive but rather allows the limited partnership agreement to regulate the terms of the partnership.

      A Mauritius partnership may elect to have a legal personality under section 11 of the Act. A partnership having a legal personality is a legal person separate from its partners and has the power to own and deal with its separate property in accordance with the agreement of its partners. This facilitates the continuity of contractual relationships with third parties and makes it easier to tie in new partners to existing contractual relationships.

  • New law extends nexus of the DIFC courts
    • 31 October 2011, Sheikh Mohammed bin Rashid Al Maktoum, prime minister of the UAE and ruler of Dubai signed Dubai Law No. 16 of 2011, which enables parties to civil and commercial agreements to choose the courts of the Dubai International Financial Centre (DIFC) to resolve disputes.

      The DIFC, a financial free zone in Dubai, is empowered to self-legislate in civil and commercial areas and its legislative system is based on English common law. The DIFC has its own courts, which are independent of the Dubai courts and the UAE Federal courts, and consist of a Court of First Instance and a Court of Appeal.

      The DIFC Courts offer a transparent, English-language, common law system in the midst of a predominantly civil law Middle East region. The DIFC Court allows practitioners from any jurisdiction to have rights of audience provided they have been admitted to practice in their respective home countries.

      Since inception in 2004, the scope of the DIFC Courts’ jurisdiction has been limited to civil and commercial disputes with a direct nexus to the DIFC. Under the new law, parties across the Middle East region and internationally may choose the DIFC Courts to govern disputes under civil and commercial agreements, provided that this is expressly agreed in writing between the parties before or after the occurrence of the dispute.

      Law No.16 of 2011 also governs how DIFC Court judgments, orders and awards can be enforced in other jurisdictions, supplementing the rules regarding enforcement in the Dubai Courts.

  • Portuguese Budget removes exemption for Madeira IBC companies
    • 30 November 2011, the Portuguese Parliament approved the 2012 State Budget which contained a proposal to eliminate the withholding tax exemption on dividends and interest payments to shareholders of entities licensed within the Madeira International Business Centre. The change took effect on 1 January 2012.

      For dividends paid to companies within the European Union, the EU Parent-Subsidiary Directive will apply. Provided that the one-year and 10% shareholding requirements are met, no withholding tax will apply.

      Where a country has a double tax treaty with Portugal, the withholding tax applicable will be that specified in the relevant treaty. The withholding tax on interest and royalties may also be reduced under the EU Directive on Interest and Royalties.

      Where a country does not have a double tax treaty with Portugal, the standard Portuguese withholding tax rate for interest and dividend payments is 21.5%. The rate increases to 30% for payments to shareholders of companies located in jurisdictions included on Portugal’s black list

  • Sarkozy call to ostracise “tax havens” at G-20 Summit
    • 4 November 2011, French president Nicolas Sarkozy called on 11 jurisdictions, including Switzerland and Liechtenstein, to be ostracised as “tax havens”. He named them in a speech at the conclusion of the G-20 summit in Cannes.

      “We do not want any more tax havens,” said Sarkozy. “The message is very clear, countries which persist in being tax havens will be ostracized by the international community.”

      A communiqué issued by the French Presidency of the G-20 summit, said the OECD’s Global Forum on Transparency and Exchange of Information for Tax Purposes had identified 11 jurisdictions with serious shortcomings: Antigua and Barbuda, Barbados, Botswana, Brunei, Panama, Seychelles, Trinidad and Tobago, Uruguay, and Vanuatu did not have a suitable legal framework for the exchange of tax information and did not qualify for the phase 2 review; Switzerland and Liechtenstein did not qualify for phase 2 until they remedied certain deficiencies identified by the Global Forum.

      “The G-20 countries have solemnly recommitted to promote compliance with the international tax and financial information exchange standards and to use all the countermeasures available to them to combat tax havens and non-cooperative jurisdictions that do not comply with these standards,” said the statement.

      “In tax matters, the countermeasures include tax penalties on counterparties in transactions with tax havens. Taking this action forward, the G-20 has called on the FATF and the OECD to step up their joint work on corporate and trust transparency in tax and money laundering matters.”

      All the G-20 governments signed up to the Multilateral Convention on Mutual Administrative Assistance in Tax Matters. Drawn up by the OECD and the Council of Europe, the Convention includes automatic exchange of information, multilateral simultaneous tax examinations and international assistance in the collection of tax due. It also imposes safeguards to protect the confidentiality of the information exchanged. Previously only seven of the G-20 members had signed.

      Jeffrey Owens, director of the OECD’s centre for tax policy and administration, said: “Now that the G20 countries have led by example, we expect other countries to sign the convention,” he added. “As the membership expands, so the effectiveness of the convention will increase. Over the coming months we will be working with developing countries so that they will rapidly be in a position to sign the convention.”

      A survey of 20 countries conducted by the OECD showed that earlier measures to deter tax evasion had resulted in 100,000 individuals paying a total of $14 billion in unpaid tax on assets worth between $120 to $150 billion.

  • Spain reinstates wealth tax on temporary basis
    • 17 September 2011, the Spanish government reintroduced the “wealth tax” – Impuesto Sobre el Patrimonio – for tax years 2011 and 2012 by temporarily repealing a 100% “tax allowance” that has been available since 2008. The new measures also provide new thresholds for application of the tax.

      Spain’s wealth tax is based on the net assets held as of 31 December each year, and the rate ranges from 0.2% to 2.5%. Residents are subject to the wealth tax on their worldwide assets, while non-Spanish tax residents are subject to the wealth tax only for the assets located in Spain.

      The reintroduction targets only Spain’s wealthiest 160,000 resident taxpayers, so the minimum taxable wealth level for residents has been raised substantially to €700,000 per person, plus a maximum of €300,000 per person for their habitual residence.

      The wealth tax is collected by the different “autonomous communities” in Spain, which are authorised to modify the minimum tax exemption, rates and allowances.

  • UK targets QROPS pension business
    • 29 November 2011, the UK government published, as part of its Autumn Statement package, draft regulations making changes to the system for transfers of pension savings to qualifying recognised overseas pension schemes (QROPS). The proposals are to be included in the 2012 Finance Bill.

      The regulations revise the conditions a scheme has to meet to be a QROPS and strengthen the information and reporting requirements. The regulations will also introduce an acknowledgement by the individual, to be completed before a transfer is made, that tax charges may apply, and provide additional powers for HMRC to request information from a scheme manager of a QROPS.

      “The government has found that QROPS are being marketed extensively as a way of paying amounts or enabling the payment of amounts that are not allowed under UK rules (in particular 100% lump sums) once the UK tax rules no longer apply”, said HMRC in a statement. “This is contrary to the policy rationale for allowing transfers of UK tax-relieved pension savings to be made free of UK tax to QROPS.”

      Most significant is a new proposed rule requiring pensioners that are not resident in the jurisdiction where their QROPS funds are administered should be taxed at the same rate as residents of that jurisdiction.

      The draft Finance Bill 2012 also announced the postponement of implementation of a planned statutory residence test for a further year. In a written ministerial statement, exchequer secretary David Gauke said consultation on the residence rule published in July had raised a number of detailed issues, which “will require careful consideration to ensure the legislation achieves its important aim of providing certainty for individuals and businesses”.

      Gauke said the government intends to implement the form of the statutory residence test set out in the consultation but wants to have a second round of consultation. This would delay the legislation to the Finance Bill 2013. Any changes to “ordinary residence” would be introduced at the same time.

      The previously announced reforms to taxation of non-domiciled residents were included and will be included in Finance Bill 2012. The draft legislation raises the annual charge for non-domiciles from £30,000 to £50,000 for those who have been resident in the UK for 12 of the preceding 14 years. It also enables non-doms to remit funds to the UK tax-free for commercial investments in a wide range of unlisted commercial and trading businesses, and simplifies the remittance basis rules relating to nominated income, foreign currency bank accounts and the taxation of assets sold in the UK.

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