Tax lawyers attack shadow ACT rules

The Inland Revenue's proposals for “shadow” Advance Corporation Tax (ACT) are overcomplicated and are likely to give rise to litigation, according to Francis Sandison, the Law Society's tax expert.

The society's corporate tax sub-committee, chaired by Sandison, submitted its criticisms to the Inland Revenue last week.

Sandison, a Freshfields partner, said that parts of the regulation had been drafted so turgidly that “we more or less despaired of trying to work it out and we said “what are you trying to get at?'”

He added: “I wouldn't be at all surprised if there is some litigation arising out of these regulations.”

However, Sandison said the committee had held back from attacking the principle of shadow ACT: “We took the view that the government had already made up its mind on that.”

Businesses have always been able to offset ACT, which is paid on dividends, against UK profits.

Multinationals that log most of their profits overseas have been storing up their ACT credits for use when and if they buy into UK businesses.

But the Chancellor Gordon Brown is abolishing ACT from April next year, and is concerned that companies will rush to use their ACT surplus credits in that year, leaving the Government with virtually no revenue.

To prevent this, the Inland Revenue has devised the concept of “shadow ACT”. Even though companies no longer actually pay the tax, they will be allowed to offset a nominal amount against their profits for the first few years after the tax is abolished.

Sandison pointed out that this could prevent some companies ever using up their existing ACT surplus.

The Chartered Institute of Taxation, whose members include lawyers and accountants, has been even more vociferous.

Last week it attacked the draftsman of the shadow ACT regulations for sticking to “old drafting techniques” rather than using the techniques developed by the tax law rewrite team, currently simplifying the UK's tax laws.

“The result is that the regulations are almost incomprehensible in places,” it said.

“Experience shows that this kind of legislation (by reference to other legislation) is a recipe for future litigation.”

It concluded: “If the Government's intention was to deny relief for surplus ACT altogether, this should have been stated explicitly.”

But Sandison said the aim of the new rules was to cut out tax avoidance by multinationals. “Unfortunately, like all anti-avoidance legislation, some deserving cases will lose out.”