Where to start?  Tax and morality seems as good a place as any.

Cardinal Keith O’Brien has accused David Cameron of acting immorally by favouring the rich ahead of ordinary citizens affected by the recession.  The cardinal also denounced David Cameron’s opposition to a “Robin Hood tax” on financial institutions.  Those arguing for a European financial transaction tax have gone a bit quiet recently.  The cardinal’s interview has though brought this proposal back into the news.  Whether a tax such as this is introduced is though only part of the debate.  As with most taxation debates the secondary debate involves how the revenue should be spent.  The cardinal would like it spent helping the poor and vulnerable at home and abroad.  Others want an emergency fund for the next banking crisis.  An article from the BBC new website on this can be found here.

Now to the London mayoral debate. Included in Boris Johnson’s manifesto for a second term is a proposal to set up a commission that would explore the possibility of a “Barnett” style formula for London.  Johnson wants to keep more of the tax raised in London to be spent in London.  An article on this from the Guardian can be found here.  This is further evidence of how quickly the fiscal powers debate is moving.

The Scotland Bill has received its Royal Assent.  An article on this from the BBC news website can be found here.  A missed opportunity?  I think so.  That said, even under the Scotland Act (2012) we are going to have a Scottish tax system.  I am of course looking forward to the Scottish Government’s consultations on the tax powers being devolved but why stop there?  It is surely now obvious that we need to start thinking about the type of tax system we want.  That must include a review of all government tax, law and registration services and the creation of a Scottish Exchequer.

Good to see an article in the Herald on something I have written about recently.  Businesses in new Scottish enterprise zones will be able to claim up to 100% business rates relief as part of new incentives to stimulate investment in the economy.  Other measures announced by the Scottish Government include more efficient planning procedures, improved broadband, targeted capital allowances and international marketing.  The article in the Herald can be found here.

Another article from the Herald, this time on an “unprecedented” number of business rates appeals.  The article reports that court cases have been launched by retailers in Edinburgh, Glasgow, Dundee and Kirkcaldy and elsewhere as firms contest the size of their rate bills.  The article from the Herald can be found here.  The main argument being used is that the current rates were calculated in 2008, before the extent of the downturn became apparent.

For those of you interested in tax statistics, the relevant HMRC page can be found here.  For those of you interested in tax consultations, current HMRC consultations can be found here and current HM Treasury consultations here.  There will be many more consultations added over the next few months as the UK Chancellor in his Budget made reference to approximately 45 consultations.

Approximately 12,000 people who had been told that they no longer needed to fill in self-assessment tax forms have been sent penalty notices in error.  To put this in context, 130,000 people were taken out of the self-assessment process for this tax year.  Some 850,000 people were sent penalty notices for failing to submit their tax returns on time this year.  This is 550,000 fewer than a year ago.  An article on this from the BBC news website can be found here.  As mentioned in this article it is likely that “HMRC’s resources” played a part in this latest error.

Nearly 60,000 more Scottish pensioners than first thought will be hit by the UK Government’s decision to freeze age related personal allowances according to new figures published by HM Treasury.  The figures show the so called “granny tax” will impact 423,000 pensioners in Scotland by 2015-2016.   The article from the Herald can be found here.

David Cameron has backed proposals for an “airline levy” to ease waiting times at London Heathrow Airport border control.  Airlines using London Heathrow would pay higher landing fees to pay for additional UK Border Force staff to help remedy the long queues currently occurring.  You would be forgiven for thinking there was an election in London this week.  The UK Government is not making many friends in the airline industry just now.  The spat over increases in Air Passenger Duty continues.  More information on this can be found in an article on the BBC news website found here.

Now to Europe and the “debt crisis” debate.  Financial Times journalist, Gideon Rachman continues to argue against European countries trying to spend their way out of their debt crisis.  This is a quote from his article:  “There is, of course, scope for argument about the pace of deficit reduction.  But in a highly-taxed, highly-regulated, highly-indebted continent like Europe, more state-funded public works would simply build another road to nowhere”.  The full article can be found in the Financial Times on 1 May.

I will finish on a matter I have blogged on before.  More than 2,000 public sector workers could be avoiding the full rate of income tax through special contracts, UK Government research has found.  An article on this from the BBC news website can be found here and my earlier blog here. This is an incredible figure as it does not include those in the NHS or local government.  Danny Alexander is seemingly “shocked”.  It seems that “shock” is becoming the default reaction for UK Government Ministers.  You may remember George Osborne’s was also recently “shocked” at the extent of tax avoidance.  Tax and morality it was ever thus.

Have a good weekend.  “Tax land” will be back in three weeks time.

Where to start?

The fall out surrounding the UK Chancellor’s Budget statement continues.  The House of Commons Treasury Select Committee has said that the Chancellor’s plans to scrap the 50p tax rate don’t add up.  In addition it criticized the numerous Budget leaks.  An article on this from the Daily Mail online can be found here.

I am surprised that more has not been made of the change to the 40p income tax band.  One of the arguments put forward for reducing the top rate of income tax was the effect it was having on entrepreneurship.  I cannot see how massively increasing the number of people liable to pay income tax at the 40p rate compliments that argument.

Then there is the charity furore and the apparent contradictions in the arguments put forward by the UK Government in support of this policy.  The fact that some UK Government Ministers fought extremely hard to reduce the top rate of income tax is well documented.  Now the UK Government is criticising the fact that rich people don’t pay a high enough rate of income tax.  In addition, the UK Government has made it clear they wish to increase charitable giving.  Only a year ago, in the 2011 Budget, the UK Chancellor announced proposals to support giving, such as a lower rate of inheritance tax for those leaving 10% of their estate to charity.  The UK Government started by saying that the policy is needed by alleging that high earners are using donations to dubious charities to reduce their income tax bill to almost zero.  Now it is talking about fairness.  Will this policy even survive the summer?  An article from the STEP online journal on this issue can be found here.

HM Treasury has released figures showing the extent of tax avoidance by the UK’s so called “super rich”.  Robert Peston has written an excellent article on this.  His comment on the contrasting approach taken by George Osborne and his Labour predecessors is particularly noteworthy.  If the report does tell us one thing, it is how complicated a picture this is.  One fact does though stand out.  73% of those earning over £250,000 were paying an average tax rate above 40% in 2010/11. Robert Peston’s article from the BBC news website can be found here.

Good to see the Church of Scotland entering the earnings and taxation debate.  A Kirk commission has issued a report on the “greed and inequality” of the bonus culture and tax avoidance.  An article from this from the Herald can be found here.

Now to what is expected of HMRC in the next year.  HMRC’s remit for 2012/13 is:

• improving tax collection
• delivering cost reductions
• improving services for individual and business customers
• Real Time Information
• tax policy and the policy partnership

The context to this is fewer staff and a smaller budget.  More on this can be found here.

The Scottish Parliament this week endorsed a legislative consent motion which effectively allows the UK Government to pass the Scotland Bill, also known as “Calman minus”, at Westminster next week.  Have I anything else to say on this?  No.  The term “Calman minus” says it all.  An article from the Scotsman on this can be found here.

The Guardian reported recently that Amazon’s tax affairs are being investigated in the US, China, Germany, France, Japan and Luxembourg.  HMRC have refused to confirm whether it is also investigating Amazon.  Amazon is the largest retailer in the UK.  The Guardian also reports that Amazon paid no UK corporation tax last year.  This is primarily because the US parent in 2006 transferred ownership of the main Amazon.co.uk business to a Luxembourg company.  It is not just the UK Government that is being asked questions about this company.  The Scottish Government is also being asked questions relating to a £10m grant.  Of course if the relevant tax powers were devolved to the Scottish Parliament, the left hand might have more of a chance of knowing what the right hand is up to.  Articles from the Scotsman and the Guardian on this matter can be found here and here.

Another week and another VAT issue.  The Church of England fears church renovation projects could be scrapped because of planned changes to VAT set out in the UK Budget.  From October this year HM Treasury will charge VAT at 20% on approved alterations to listed buildings.  Presently this is exempt from VAT.  The Church of England thinks the change will cost it £20m a year.  HM Treasury says funding will be available to ensure church renovations are not cancelled.  A report from the BBC news website on this can be found here.  The BBC report notes that a “source close to Chancellor George Osborne is reported as saying that this proposal was about ensuring a millionaire wanting to build a swimming pool in the garden of their listed mansion had to pay VAT on it.”

HMRC is improving and streamlining its processes for customers who need to deal with them following a bereavement.  HMRC is creating dedicated teams who will be responsible for dealing with PAYE and Self Assessment for bereaved customers.  The main form which customers use to finalise the tax affairs of the person who has died, R27, has been redesigned following feedback from customers and tax specialists to make it easier to complete.  More on this can be found here.

A “fat tax” is back on the agenda.  The Academy of Medical Royal Colleges has called for stronger measures to reduce obesity in the UK.  The first phase of the Academy’s campaign will try to find out what works.  It will review evidence for diets, exercise, taxation, minimum pricing and changing advertising and food labeling.  The Academy has also blamed the UK Government’s previous strategies and irresponsible marketing for aiding to obesity issues.  An article on this from the BBC news website can be found here.

There are suggestions that the German Government’s recent renegotiation of its withholding tax agreement with Switzerland may tempt the UK Government to try and do the same with its own Swiss agreement.  The UK Government has though already changed it once already.  An article on this from the Guardian can be found here.

Let’s finish with the “Buffett Rule” as it sounds like it might be about food and I am feeling peckish.  Sadly, the Buffett rule is not about food but instead a tax plan that would apply a minimum tax of 30% to individuals making more than a million dollars a year.  An editorial in the Wall Street Journal calculates that the Buffett Rule, which is supported by President Obama, would lose $80bn a year from USA federal tax revenues.  The US Senate has in fact this week voted to block the Buffett Rule.  The article from the Wall Street Journal can be found here and a BBC website news report on the Senate vote can be found here.

Have a good weekend and good luck to all the teams competing at Scottish Rugby’s Cup Final day at Murrayfield on Saturday.

As with any Budget statement, it is best to take a few days before passing judgement.  That said, and even before all of the detail has been analysed, there are a number of issues that stand out even just 24 hours after the Chancellor sat down.

The first concerns the debate, for “debate” read “leak everything”, that has surrounded a large number of Budget issues over the last few months.  We have a come a long way from the days when Gordon Brown did not even tell Tony Blair what was going to be in the Budget statement.

The proposed reduction in the top rate of income tax has dominated the political news coverage over the last few months.  The debate over how much it has raised will not end with the Budget statement.  There is no doubt it has led to a great deal of tax avoidance, aggressive tax avoidance.  That was to be expected.

The changes to the personal allowance and tax rate thresholds, has already begun to dominate the news coverage.  The coalition government must be hoping that the news coverage concentrates on the increase in the personal allowance and not the 300,000 more people who will be drawn into the 40% income tax rate from 2013/14.  To put this in context.  In the 1980’s approximately 5% of people were higher rate taxpayers.  Now it is 15%.

The freezing of age related allowances is also likely to cause problems for the coalition government.  Somehow they need to show that this is a good example of tax simplification.

The claim that does stand out is that by reducing the top rate of income tax, combined with other avoidance measures, five times more tax will be raised from the richest.  The Institute of Fiscal Studies noted today that that this is the third worst Budget statement for measures relating to tax avoidance.  This is measured on how much tax the avoidance measures to be introduced are likely to save.

Now to an old Budget favourite, stamp duty and Stamp Duty Land Tax (SDLT).  The SDLT changes were not unexpected especially for anyone who buys a Sunday newspaper.  The Chancellor announced that the level of stamp duty on residential properties over £2m which were bought via a company would increase to 15% with immediate effect.  In addition, overseas companies that already own UK residential property worth more than £2m will be subject to capital gains tax (CGT) from April 2013.  The CGT point was less expected but nonetheless welcome.  This though should have been dealt with many years ago.  The Chancellor also made it very clear if avoidance of this kind continues, further measures would be introduced without warning which have retrospective effect.

That though is not the main issue with SDLT in Scotland.  In Scotland only around 10 properties a year are sold that are worth over £2m.  The jump from 1% to 3% of SDLT at £250,001 is a much bigger issue.  Hopefully that will be one of the first issues dealt with when this tax is finally under the control of the Scottish Parliament.

One change I was hoping to see, in vain I might add, was a targeted VAT reduction for home repairs and renovations.    

Now to the fiscal powers debate.

The UK and Scottish Governments have agreed a number of changes to the Scotland Bill.  Both Governments will now recommend that their respective Parliaments support the Bill.  A number of minor changes have been agreed.  The Scottish Government has secured changes to the sections of the Bill dealing with borrowing powers and the Supreme Court.  It was also agreed that the measures contained in the Scotland Bill would only be implemented with the agreement of the Scottish Parliament.

The proposed reservations of insolvency procedures and regulation of health professions will also be removed preserving the Scottish Parliament’s existing legislative competence for these areas.  More on this can be found on the Scottish Government’s website which can be found here.  The list of proposed amendments agreed by both the present, and previous, Scottish Parliament Scotland Bill committees is also listed.  These lists show how few changes have been made to this Bill.  A report from the BBC news website on this matter can be found here.

The House of Commons Scottish Affairs Committee has said that the Crown Estate’s control of 50% of Scotland’s coast and almost all the seabed should be devolved to Scotland’s local authorities.  The Scottish Affairs Committee said management of the marine environment lacked transparency and public consultation.  It is now difficult to find someone who is opposed to devolving this power.  Does that mean the Scotland Bill will be further amended to include this power?  I suspect not.  More on this can be found on a report on the BBC news website which can be found here.

I was intrigued to see the Secretary State for Scotland, Michael Moore, asking for tax clarity from the Scottish Government and in relation to the independence referendum.  There is a simple answer to this question, and which would provide a degree of certainty for individuals and businesses alike.  There should be no major changes for two or even three years to the tax legislation, and system of administration, that the Scottish Government inherits in the event of a “yes” vote.

I was not surprised to read that the Scottish Government is struggling to persuade HM Treasury that the new Scottish police and fire services should be exempt from VAT.  This is likely to mean an annual VAT cost of between £22 and £36m.  Under the current structure police forces are treated like local authorities and are exempt from VAT.  However, if they merge they may be subject to VAT.  A report on this from the BBC news website can be found here.  My earlier blog on this can also be found here.

The new definition of a charity will apply to all UK charity tax reliefs from April 2012.  More information on this can be found here.  I still find it odd that when it seems that everyone is talking about tax simplification, that bodies wishing to become a charity have to meet various conditions set by OSCR (Office of the Scottish Charity Regulator) and then by HMRC.  The reason for this is that the definition of a charity in Scotland is different from that used in England and Wales.  HMRC apply English and Welsh law.  This means if Scottish charities wish to claim the various UK charity tax reliefs then they also have to submit an application to HMRC.  What utter nonsense.  If the UK Government were serious about tax simplification, the fact that you are registered as a Scottish charity should be enough to allow a charity to claim the various UK tax reliefs.  The same issue applies in Northern Ireland as it now has its own charity regulator.

I was interested to see that the European Parliament has finally voted to approve the cross border inheritance law proposed by the European Commission to clarify which jurisdiction’s succession law should govern an international estate. The UK and Ireland remain opted out of the regulation.  A report on this from the BBC news website can be found here.

François Hollande, the Socialist candidate for the French presidency, has provided more detail of his plan for a 75% top rate of income tax.  He now says there will be a ceiling on the total tax paid by an individual in one year; and that the rate will be only temporary until the public sector budget is balanced.

Finally to Greece and some encouraging news.  The head of the European Union’s Greek task force, Horst Reichenbach, has reported the collection of almost €1bn (£830m) in back taxes.  Almost double the target figure.  A good start but still a fraction of the amount outstanding as they believe there is around €8bn in uncollected tax revenues.  More on this from a report on the BBC news website can be found here.

Have a good weekend.

I would like to start with an observation.  Over the last few weeks I have attended a number of tax and law update seminars.  Without exception the speakers have commented on the constitutional debate.  Why should that surprise me?  Even a few months ago this would not have happened.  There might have been the odd mention of the Scotland Bill but even that would just be in passing.  As one of the few lawyers who were willing to discuss tax issues in a constitutional context over the last few years I find this a welcome development.  You never know someone may even listen to my call for a review if all government tax, law and registration services in Scotland.

Most Scottish local authorities will by now have sent out their 2012/13 council tax bills.  This is of course an unusual bill as we know in advance that it will be the same as last year.  One notable exception is Stirling Council which it seems almost by accident reduced its council tax.  Although I get the sense that the council tax “freeze” is being taken for granted it cannot go on forever.  It is obviously important politically and not just because we are just a few weeks away from our local elections.  That said, at some point there needs to be a new review of how we finance local government.  As someone who believes that our councils should have a degree of choice in this matter I would like to see this review begin as soon as possible.

The fiscal powers debate had a fairly quiet week.  No new “commissions” have been announced which is a relief.  An old favourite of those who oppose devolution and independence did though rear its head again.  Ruth Davidson talked about giving Scotland something called “real devolution”.  For “real devolution” read “no more powers for the Scottish Parliament”.  Ruth Davidson said: “I want to talk about devolution – not devo max or devo plus, or devo mix, or I can’t believe it’s not devo – but real devolution from Holyrood to people and communities across Scotland.”  This in my opinion is   similar to the argument that the Scottish Parliament already has lots of fiscal powers that it simply fails to use.  That particular argument is rarely seen outwith the opinion pages of the Scotsman.

An example of this type of thinking was given recently when the UK  Government decided not to devolve control over the Crown Estate to the Scottish Parliament.  Instead the UK Government passed some control over Crown Estate revenue to the National Lottery.  A decision that I think it is fair to say was unexpected.  More on Ruth Davidson’s statement can be found here.  I will ignore the fact that Ruth Davidson appears to be at odds with what the Prime Minister said on his recent visit.

I have been following with interest the debate on introducing a “minimum price” for alcohol.  This is a rare example of a policy where the aim is clearly to change behaviour and not just raise revenue.  I have written before on how policy makers sometimes disingenuously argue that a policy is to change behaviour rather than increase revenue or vice versa.  Personally I have struggled to understand the opposition to this policy.  That said, do I think that a policy of minimum pricing on its own is enough?  Of course not, nor does the Scottish Government and the myriad of health professionals who support this policy.

Do I think that an even better policy could be developed if powers over alcohol duty were to be devolved to the Scottish Parliament?  Yes I do.  This was also pointed out in the Scottish Government’s paper on “Devolving Excise Duty in the Scotland Bill”.  Specifically this would allow the Scottish Government to “align the revenue benefit with the public spending costs of alcohol consumption.”  This would also ensure that the main downside of a minimum price policy, extra revenue for the retailers of alcohol, can be balanced out.  Lastly devolution, as I often say, is complicated.  It makes sense to devolve those tax powers that are clearly connected with already devolved areas of responsibility such as health.  The Scottish Government paper can be found here.  A report from the BBC news website on this issue can also be found here.

The UK coalition government are clearly worried as to how they are being perceived on the now rather unfortunate phrase: “we are all in this together“.  The Deputy Prime Minister is reportedly softening his proposals on a so called “tycoon tax”.  I am not sure why this idea is being called a “tycoon tax” as this is simply a minimum net tax rate for a person’s total income.  In a speech to the Liberal Democrat conference on Sunday he made no mention of a minimum tax rate less than 48 hours after announcing it.  This idea is not a new idea.  Most recently it has been advocated by President Obama.  It is also has the advantage of a being a fairly simple idea.  The Deputy Prime Minister has suggested a 20% rate.  President Obama a 30% rate.  The Obama proposal appeared shortly after it was reported that Republican candidate Mitt Romney, a multimillionaire, had a net tax rate of around 13%.  More on this can be found here.

Let’s finish with London.  Ken Livingstone has denied claims that he has not paid the “correct” amount of tax on his income.  Livingstone also claims that he is the victim of a “smear campaign”.  This story has some similarities with the furore that greeted the news that highly paid public officials were being paid via a company.  My earlier blog on this can be found here.  I have to admit to some sympathy with Livingstone on this one.  Yes there is an element of hypocrisy here but Livingstone is not an elected politician, albeit a candidate, nor is he is a public official.  An article from the Guardian on this can be found here.

Have a good weekend and let’s hope for some good news from Rome.

The term “another week” does not seem appropriate as the title to this blog.

I do not remember all that much about the 1979 referendum and I was living in Chicago during the 1997 referendum.  Odd to think how much I do still remember about Argentina 78.  This week’s announcement ensures that 2014 will now be added to Scotland’s constitutional dateline.  A yes vote in the Autumn of 2014 leads to an independent Scotland by May 2016.  That is why this is not just another week.

What does a yes vote mean?  A yes vote means a Scottish Exchequer.  I have written about a Scottish Exchequer regularly over the last few years including in these blogs and the fiscal powers papers I co-authored with Reform Scotland.  Creating a Scottish Exchequer is not going to happen overnight.  We do though need to start somewhere.  Let’s start with the question: do we need separate HMRC and HM Treasury type bodes?  No.

We also need to look at what other institutions an independent or even a fiscally autonomous Scotland might need.  For example a one stop shop for all Scottish Government legal, registration and tax services.

We also now have to thinking about practicalities.  Would I copy en masse the UK tax legislation as exists in 2014 and declare that no changes will be made for two years?  Yes. This will ensure a degree of certainty for the general public and the business community.  Another advantage is that it would take some pressure off the new Scottish Exchequer.

I am sure I will come back to these and many other issues in the coming weeks and months.

I read with interest that Jeremy Paxman compared Scotland with Zimbabwe in an interview with the First Minister earlier this week.  I remember a similar point being put when I was giving evidence to the Calman Commission.  The transcript for this, page 478, can be found here.

Now to a question I was asked earlier this week.   How would I explain “devo max”.  Two areas need to be looked at.   Government spending and control over taxation.  The percentage that the Scottish Parliament has over each of these areas gives a good idea of how much autonomy it has.   Presently the Scottish Parliament has control over 60% of all government spending but only 7% of taxation.   The Scotland Bill increases taxation control to around 30%.   The latest Reform Scotland proposal, “devolution plus”, moves this closer to 70% for both government spending and control over taxation.  Fiscal autonomy or “devo max” would be around 90% for both government spending and control over taxation.  Fiscal autonomy does not reach 100% because control of VAT cannot be devolved with European Union states and foreign affairs, defence and some economic matters would still be controlled by Westminster.

The Liberal Democrats concerted campaign to dominate the news coverage in the run up to the March UK Budget  continued apace this week.   This week it was the UK Business Secretary, Vince Cable, calling for a mansion tax to be introduced on properties worth over £2 million.  It is estimated that a mansion tax could raise as much as £1.7 billion a year.  Nick Clegg, it is reported, also wants to speed up plans plans to increase the level at which income tax becomes payable, from its current £7,475 to £10,000.   This is presently scheduled for 2015.

Now to Europe.  I have previously blogged on how hard Ireland has had to fight to retain its low rate of corporation tax as a result of its bailout.  What is less well known is how the bailout might impact the Irish legal system.  Excellent article on this in the Law Society Gazette which can be found here.

Now to England and Eric Pickles, UK Communities Secretary, saying that councillors have a “moral duty” to sign up to the UK Government’s council tax freeze.  A moral duty to sign up to government policy.  A tax policy no less.  Interesting tactic.  Not surprisingly this has not gone down well with many English councillors.

More on business rates this week and the debate, for debate read spat, between the STUC and the FSB on the “Small Business Bonus Scheme”.  More on this can be found here.   Good to see that neither side used “morality” in their arguments.

Scottish Water has announced that its charges are to be frozen for the fourth year in a row.  The move means the average annual household charge from April in Scotland will remain at £324.  This is the same level it was in 2009-10.

Some more good news.   The UK Government has agreed to an income tax exemption for non UK competitors at the 2014 Glasgow Commonwealth Games.   This is something I have blogged about before and takes away another point of potential conflict between the Scottish and UK Governments.   Now that agreement has been reached on this and the fossil fuel levy fund I wonder which other niggly issue could be dealt with next?  How about adding aggregates duty, air passenger duty, corporation tax and alcohol duty to the Scotland Bill?  Likely to happen?  No.

One last point.  If you have still not dealt with your tax return please do so as soon as possible even though HMRC have effectively put back the deadline for two days due to possible strike action.  HMRC’s new penalty regime is not something you want to have to deal with.

Have a good weekend.

Let’s start with the fiscal powers debate.

Another interesting week.  When I started writing about the fiscal powers debate I was of course writing about Scotland and its relationship with the rest of the UK.   That debate is now reaching maturity and the end of the Scottish “Phoney War” is in sight.  That being the Scotland Bill.  The real debate between “devo max” and independence is just about to break through the Ardennes.

What I have found fascinating this week is the emergence of a second fiscal powers front into the public domain.  This is no longer just an issue for a relatively small group of Euro sceptics.

Prior to WWII the Germans feared a second front.  Even though they feared it, that is what they ended up with.  The UK now finds itself fighting on two fiscal powers fronts.  The second front being its fiscal relationship with the European Union.  This goes further than the proposed European financial transaction tax.  How much fiscal union will Germany and France press for?  That is the elephant in the room.

As I have blogged on before, the analogy between these two fiscal powers debate is an obvious one and poses difficult questions for each side in the debate.   Just to add to the complexity of this matter, two other fronts could flair up at anytime: Northern Ireland and Wales.

So what has been happening here in Scotland.  The Scottish Parliament’s Scotland Bill Committee has now issued its final report.  The report can be found here.  The Committee has said it is “unable to recommend” the Bill.  The  Committee also found that the plans were “not yet fit for purpose”.

What will the UK Government do?  I suspect many in Westminster and not just in the coalition would like to see the Bill fail.  Excellent blog by Alan Trench on this point.  Alan’s blog can be found here.

The report shows perfectly how the gulf between the UK Government and those arguing for “devo max” or independence is as wide as ever.  One example.  The UK Government’s refusal to devolve complete control of the Crown Estate to the Scottish Parliament.  Last week a similar announcement was made concerning air passenger duty.  Even the Labour, the Tory and the Lib Dem members of the Scotland Bill Committee want control over the Crown Estate to be devolved.

The UK Government, and the Labour party, will also have to deal with an amendment by George Foulkes to the Scotland Bill.  His amendment calls for all fiscal powers to pass to the Scottish Parliament.

As I said another interesting week.  Also difficult to keep up with all that is happening.

A quick point on Europe.  Glad to see that the Prime Minister finally started to talk about Scotland and Birmingham in the context of financial services.  He clearly realised that continuously banging on about the City of London was not going down well in other parts of the UK.

Now to other matters.  Finance Secretary John Swinney has announced that business rates will rise by 5.6% next year.  The rate currently stands at 42.6p, and will rise to 45p.  An opportunity missed?  Possibly.  We might not have heard the last on this.

HMRC have published information on the new “Rural Fuel Duty relief scheme” for retailers of road fuel on the Inner and Outer Hebrides, the Northern Isles, the Islands of the Clyde and the Isles of Scilly.  This is being introduced on 1 January 2012.  More information can be found here.  This has received relatively little publicity.

I was not surprised to read that the controversial head of HMRC, Dave Hartnett, will “retire” in the summer of 2012.  Mr Hartnett is no stronger to controversy.  His recent apology to the House of Commons Public Accounts Committee MPs for the tax deal negotiated by HMRC with Goldman Sachs was I suspect the final straw.

Finally, I found myself agreeing with the claim made by McGrigors that tax officials are increasingly using legal powers to force the settlement of unpaid tax bills in Scotland.   Information obtained by McGrigors under the Freedom of Information Act showed the number of petitions for bankruptcy filed by HMRC in Scotland increased by 97% over a three-year period.  The use of similar powers in England and Wales fell over the same period.  The story from BBC News can be found here.  Excellent work by McGrigors.

Have a good weekend.

Let’s start with the fiscal powers debate.

The fact that Douglas Alexander, shadow foreign secretary and Scottish Labour MP, has now entered the debate provides further evidence of a possible change in direction by the Labour party.  If you add to this the recent comments by Malcolm Chisholm MSP, former First Minister Henry McLeish and George Foulkes, former MP and MSP and presently a member of the House of Lords, something is clearly going on within the ranks of the Labour party.  Clearly plenty of opposition still exists but it seems that a number of senior figures are acknowledging that: arguing ‘the Scotland Bill and no further’ is not a realistic option.  The question is will Labour break the Calman consensus?

Now to England.  Research by the Local Government Chronicle has shown that up to a fifth of councils in England may not accept the UK Government’s offer to help pay for a freeze in council tax next year.  That is interesting as Scotland has had a council tax freeze for a number of years now. Although a number of councils have questioned this policy each council has in the end gone ahead and implemneted this policy.

That said this cannot go on forever.  At some point we will need to decide how we fund local government in Scotland.  The Scottish Government still favour a local income tax.  As I mentioned in a recent speech at Holyrood’s Scotland Bill conference this would now be possible under the proposals contained in the Scotland Bill.  Not that it is certain that the Scotland Bill will become the Scotland Act.  My speech can be found here.  Other options should include a Land Value Tax.  My preference is to allow councils some choice in the matter.  Some councils may prefer a form property tax over an income tax or possibly even both.

Now to the UK Chancellor’s Autumn Statement.  This takes place next Tuesday.  How much room to manoeuvre does he have?  Not much I suspect.  Recent debt and growth figures confirm that.  I cannot imagine him deviating from the view that reducing the national debt is his priority.  Although I have a fair bit of sympathy for that position it is equally clear that if the economy is to grow some additional investment or one or two targeted tax cuts is needed.  That is why I am hoping to see a reduction in VAT for home repairs and improvements as already happens in the Isle of Man.

What about the top rate of income tax?  The Eurozone crisis and in particular the possible introduction of a European financial transaction tax have pushed the 50p rate debate from the front pages.  I suspect this is only temporary and battle will soon commence again.  I do not expect to see any specific announcement on the 50p rate next week but I do expect to some comments along the lines of this needs to be looked at and how much if any revenue does it bring in.

I am sure we will see more anti-avoidance measures announced and possibly a consultation on a general anti-avoidance rule.

I will finish on an issue I wrote about a few weeks ago.  My earlier piece can be found here.  Ales Belyatski’s, one of the leading opponents of the Belarus government has been sentenced to four and a half years in jail.  He had been charged with tax evasion.  The Belarus government had obtained details of his bank accounts by invoking an information exchange agreement with Poland.  Several senior Polish government officials lost their jobs over the affair.

Have a good weekend.

This is the text of my speech to this morning’s Scotland Bill conference.

Good morning.

I recently resigned as a trustee of Reform Scotland.  Pressure of work and joining the board of the Borders Chamber of Commerce were the main reasons.  I did though also want a break from this debate.

That though has allowed me to take a step back.  What I have noticed is how quickly the debate is now moving.  The term “devo max” is suddenly everywhere.  The debate is not now confined to Scotland.  It has taken a while but London is now taking a real interest.  Then there is Eurozone crisis and the debate over how much fiscal union is needed where you have monetary union.  The analogy between the UK’s relationship with the EU and Scotland’s relationship with the UK is an obvious one.

Back to the small matter of the Scotland Bill.  My interest starts with the fact that I am a lawyer.  I want to know about the legislation.  I want to know how and by whom the tax will be collected.  Is someone asking for a right to vary a tax or to have complete control of a tax.  What about the underlying and connected legislation.  These questions should remind us how complicated devolving powers can be.

I will cover four points today.

1. The Scotland Bill is Calman minus;
2. learning from experience and is “HMRC fit for purpose”;
3. institutions as a missing element of the debate; and finally
4. there was a better option.

The Scotland Bill is Calman minus.

People forget that the interim Calman report recommended almost no fiscal or tax powers.   The final report contained a small number including the controversial income tax proposal.  The Scotland Bill is meant to be based on the Calman report but what happened to air passenger duty and aggregates levy?

Air passenger duty was not included as it seems to be under constant review; however, the UK Government has indicated that parts of air passenger duty may be devolved to Northern Ireland.

Aggregates levy was not included because of an action raised in the European Courts by a trade body.

We have been told that these minor taxes might be included at a future date.  There is no reason for a delay.  The Scottish element of these taxes should simply be carved out of the relevant UK legislation.  Then leave it up to the Scottish Parliament to decide what to do next.

In addition Calman recommended that 50% of income tax on savings and distributions was to have been assigned to the Scottish Parliament.   Why 50%?  As with the income tax proposal no-one can give any justification for that figure.  This power has been dropped from the Scotland Bill completely.

Then there is the debate over adding additional tax powers to the Scotland Bill.

The previous Scotland Bill committee said that some powers over corporation tax should be included if Northern Ireland is granted any such powers.  Up until recently it looked as if Northern Ireland would soon be getting this power.

The Scottish Government have also produced papers on adding corporation tax, alcohol duty and control over the Crown Estate to the Scotland Bill.

I think it is fair to say that none of these suggested additions have been taken up enthusiastically by the Scottish Secretary.

Some powers might actually be re-reserved such as parts of insolvency and charity law.  The Scottish Parliament is at fault on insolvency by not updating the law.

Instead of arguing about re-reserving part of our charity law why was it not agreed that when OSCR registers a charity it automatically becomes entitled to the various charity tax reliefs.  Presently you also have to make an application to HMRC.  There is a lot of talk about tax simplification.  This was an obvious opportunity missed.

So which tax powers are we left with?

Two minor taxes, SDLT and landfill tax, and an income tax proposal that some commentators think is unworkable.   I will leave it to the accountants and economists to argue back and forth on that one.  That said, as a lawyer I would not start this process with income tax unless you devolve the tax in its entirety.  Only VAT is more complicated.    The longer I have been involved in this debate the less inclined I am to argue for a tax to be shared between parliaments.

The other problem is an eggs and baskets one.   Income tax is just one economic lever albeit a major one.  We have seen what has happened to income tax receipts during the current economic crisis.

Also a right to vary a tax is not much of a power on its own.  What about the underlying law that allows you to create reliefs or vary the tax base. What about connected legislation that affects the tax legislation.  For example for income tax: the tax residency rules or employment legislation.

To change tack for a minute.  What do I like about the Scotland Bill?  The borrowing powers provisions have been improved.   The way the two minor taxes are being devolved makes sense.  They are being carved out of the UK legislation and the Scottish Government are to draft a new Scottish act.  One word of warning on the drafting.  Who is drafting this legislation? What experience do they have in drafting tax law?

I also like the fact that the Scottish Parliament will be able to create new taxes albeit with Treasury approval.

Moving quickly on.  I always think it is a good idea to see how things have been done in the recent past.  What can we learn?  Given the importance of HMRC to this process I also want to discuss whether HMRC is presently fit for purpose.

I will start with HMRC.   I do have quite a bit of sympathy for them just now.  Can you imagine them being told: “I know we are cutting job numbers and your budget.  I know we are already asking you to do a number of new things but can you also deal with the Scotland Bill.”  You can see why HMRC do not treat this matter with much if any enthusiasm.

Is HMRC fit for purpose?  The House of Commons Treasury select committee thinks not.   A further £1.6bn is to be cut from its budget over the next four years.  10,000 more job losses.  Offices are to close.  This is in addition to the cut of approximately 30% in staff numbers and budget since 2004.  I will not even attempt today to answer the question of whether the UK tax system is fit for purpose.

It is though not just staff numbers and budget.   The centralisation of the administration of various taxes is causing problems for us in Scotland.  Two examples.  Birmingham for SDLT.  Nottingham for inheritance tax.

Why is this important?  UK tax law applies English & Welsh legal principles.  Property law and succession law are governed by Scots law.  These can conflict.  In addition, as these taxes are now primarily dealt with in England the amount of Scottish expertise has declined.   One example.  The guidance for SDLT in Scotland had to be written by a sub-committee of the Law Society of Scotland’s tax committee.

Then there is the news that as part of the HMRC cutbacks the Edinburgh Stamp Office is under threat of closure again.  The Trusts and Estates office in Edinburgh is being run down.   I have not heard one Scottish politician ask questions about this.

Now three examples of why I am not confident that this will be done be well.

Remember also that these examples are from a time when HMRC was better staffed and resourced.  Also it is not just HMRC that needs to do better.  The Scottish Government also needs to raise its game.

It has been well documented as to how much of a shambles the introduction of SDLT in Scotland was.   I was at meetings where HMRC openly said they did not realise that Scotland’s property law was different to English property law.  They also made it clear that they did not have time to change the legislation.  “Don’t worry we will have plenty of time to sort things out later”, they said.  The only reason that SDLT worked in Scotland was due to the goodwill and pragmatism of the Scottish legal community.

Then there was the proposal for a UK wide planning-gain supplement.  This was also pre-recession and the debate was all about how much should developers contribute.   I remember my first meeting with HMRC and Treasury officials about this.  The meeting started well with me saying: “I hope you make a better job of this than you did with SDLT”.

Again the level of knowledge of Scots law and which powers the Scottish Parliament had was not great.  My main argument against a UK planning-gain supplement was a simple one.  This was a matter for the Scottish Parliament as planning and housing are devolved matters.   A point so obvious that they said it had never occurred to them.  Maybe, maybe not!

This debate went on for many months but finally the proposal in Scotland was dropped.

My third example is I suspect the one you are most familiar with.  The Scottish Government’s local income tax proposal.  I remember being asked about this 2007 SNP manifesto commitment.  I made three points:

1. Why do you think HMRC will cooperate and work to your deadlines?
2. What about Council Tax Benefit?  I pointed out that the Treasury have withheld attendance allowance funding since the Scottish Parliament introduced free personal and nursing care.
3. This proposal relied on the yet unused tax varying powers.  Is 3p in the pound adequate I asked? Is there even a list of Scottish taxpayers?

I was not surprised when the Scottish Government dropped, possibly temporarily, this proposal.

Ironically this proposal will be soon be possible as under the Scotland Bill the tax varying powers are increased and Council Tax benefit powers are likely to be devolved in 2013.   Whether HMRC would cooperate is of course another matter entirely.

Now to institutions.

The Scottish Parliament is going to need an Exchequer.  An Exchequer that ideally combines the functions presently undertaken by HMRC and the Treasury.   Even under the limited powers contained in the Scotland Bill the Scottish Government will need an Exchequer not just a finance department.  Hopefully the Scottish Government is already thinking about this.

Does Scotland need a separate Stamp Office, Registers of Scotland, Trusts and Estates Office and Companies House?  Of course not.  Why not create a one stop shop to combine these and other government tax, legal and registration services.   By doing this we could also have sub-offices.  Just as London is not the UK Edinburgh is not Scotland.  Remember some benefit powers are already to be devolved in 2013.  Why not create a tax and benefits office?

As far as institutions go we pretty much have a blank sheet of paper.  Let’s not waste this once in a lifetime opportunity.

A few final points.

It is all very well for me to criticise the Scotland Bill.  Do I have or rather had I a better option?  Yes I think I did.

When I started looking at the fiscal powers question my starting point was to look at which powers were already devolved.  The starting point for the Calman Commission was very different and much has already been written about that.

The imbalance in the powers of the Scottish Parliament is obvious.  The Scottish Parliament is responsible for 60% of government spending in Scotland but only has control over 7% of all tax raised in Scotland.  That is the starting point for the debate on financial accountability.

The Scottish Parliament had very few economic levers.  It only has two local taxes out of over 20 taxes and duties.

The lack of tax and fiscal powers also affects policy making.  For example the recent debate on alcohol minimum pricing.  I am sure the Scottish Government would prefer to use alcohol duty if it had the power to do so.

So what to do?

Instead of spending so much time trying to devolve income tax I would have firstly devolved the taxes and duties that are closely connected with already devolved areas of responsibility.

Some examples.

• Property law is devolved but SDLT and the property parts of capital gains tax are not.
• Succession law is devolved but inheritance tax is not.
• Environmental law is devolved but the environmental taxes are not.
• Health is devolved but alcohol and tobacco duties are not.
• Transport is devolved but transport related taxes are not.

This increases the number of economic levers and would greatly help with joined up policy development.   Almost all of the miscellaneous taxes could be devolved under this option.

I would also give the Scottish Parliament the power to decide which of, and when the miscellaneous taxes and duties are devolved.

The other advantage less commented upon is how this would simplify the taxation system of the rest of the UK as less specific “Scottish” guidance would be required.

The point of how small a percentage of revenue the Scottish Parliament raises is though not resolved.  The Scotland Bill takes us to about a third.  Devolving the majority of the minor taxes takes us to about a quarter.

Only be devolving one or more of the big “5” can this be dealt with.  VAT cannot be devolved.   National Insurance is very closely linked with benefits which is still primarily a UK matter.

That leaves corporation tax, North Sea revenue and income tax.  On balance I would go for corporation tax and North Sea revenue as income tax is so closely linked with national insurance.

On timing I also think that the miscellaneous taxes and duties could be devolved relatively quickly.    The Scottish Parliament could also agree that for a period of up to two years to not change any tax that is devolved.  That would provide a degree of certainty.

Also why does the Scotland Bill not make provision for a tax exemption for our Commonwealth Games and as is already in place for next year’s London Olympics.   Or deal with the fossil fuel levy issue.

Last point.  The Scottish Government should deal directly with the UK Government and in particular HMRC and the Treasury.   The Scotland Office is simply a further complication.

Although this is complicated it is also a great opportunity.  Is the opportunity still there?  I am not sure.  But we would not be Scottish if we did not try to snatch victory from the jaws of defeat right at the last moment.

Thank you.

For those interested in the Scotland Bill I would recommend that you look out for coverage of the evidence given to the Scotland Bill committee by Martin Sime of the SCVO.

The premise of the evidence is that the Scotland Bill will be irrelevant before it is implemented.  I have blogged on this issue before but from a tax perspective.

The Scotland Bill includes an income tax proposal that is overly complicated.  In addition the Scotland Bill fails to link up devolved responsibilities such as the environment with associated environmental taxes.  Or health and alcohol and tobacco duties.  Or succession law and inheritance tax.  Or giving OSCR sole responsibility for charity registration.  Devolving these and other similar taxes and duties, and certain specific tax powers, would have given the Scottish Parliament a greater number and more wide-ranging set of economic levers.   It would also simplify government both in Scotland and the rest of the UK.

More information on the evidence to be given by SCVO can be found here.

No shortage of matters to blog about this week.

I think I will start with Edinburgh and in particular the City of Edinburgh Council.  Last week a “hotel bed” tax was proposed by Jenny Dawe leader of the Council.  This idea has been recycled a number of times over the last few years.  This week she proposed a voluntary “festival ticket” tax.  Clearly the Council are turning their minds to how they might meet any future funding shortfall.  Not yet clear if this is just kite flying by Councillor Dawe or whether there is serious support for one or both of these ideas.  I do though like the fact that a local politician is willing to enter into this sort of debate.

Moving on to the Scottish Parliament and John Swinney’s latest Spending Review.  Business rates have dominated the coverage of the Spending Review.  There has been a public debate. For debate read “slanging match”, between the Scottish Government and the “Centre for Public Policy and the Regions” over how much business rates revenue is going to increase over the next few years and also what the causes of this increase will be.    This debate has surprisingly overshadowed the proposal for a new “public health levy” on the business rates of large alcohol and tobacco retailers.

Interested to see that Ken Macintosh, one of candidates for the leadership of the Scottish Labour party – and yes I can name the other candidates as well – says if elected and if he wins the next Scottish General Election he would cut the Scottish rate of income tax.  Not that we have a Scottish rate of income tax yet and it is not even certain that the Scottish Government will accept the income tax proposals contained in the Scotland Bill.  Nonetheless this is a welcome sign that that the Labour party in Scotland are joining the fiscal powers debate.

More evidence has been given this week on the Scotland Bill.  As noted by a number of commentators this week we are in the position that very few people seem happy with the fiscal and tax provisions as proposed.  Numerous questions remain over the income tax proposals.  Some minor taxes recommended for devolving by the Calman Commission have not even been included in the Bill.  One of these, Air Passenger Duty, is to be devolved to Northern Ireland.  A pattern does appear to be forming here.  Borrowing powers, corporation tax and now Air Passenger Duty.

The UK Government is unhappy with the Scottish Government.  The Scottish Government is unhappy with the UK Government and in particular the UK Treasury.  No side seems to be acknowledging how complicated all of this is.   This has “it is going to end in tears” written all over it.  I still don’t understand why so much energy is being wasted on income tax and corporation tax when there are numerous other taxes which would be much easier to devolve.  These taxes even if a majority were devolved would not provide as much revenue as income tax but would provide a greater number and a more wide-ranging set of economic levers for the Scottish Parliament.  Still I am sure our politicians know what they are doing.

One suggestion.  There are going to be two new Scottish taxes: Stamp Duty Land Tax and aggregates levy.  Can I suggest that the Scottish Government involves the Scottish Law Commission in the drafting of the legislation of these taxes.  Two reasons.  Firstly the expertise, experience and reputation of this body is second to none.  In addition, as more taxes are likely to be devolved, this will ensure that we start the job of creating an expert group going forward.  The recent Scottish Government paper on Corporation Tax shows just how much work requires to be done before such taxes can be devolved.

Now to Liverpool and the Labour party conference this week.  Ed Balls renewed his call for a cut in VAT and in particular a reduction to 5% for VAT on building repairs and renovations to residential property.   I have previously blogged on the Scottish campaign for a 5% VAT rate for repairs and renovations and in particular on the fact that the Isle of Man has already negotiated such a reduction with the UK Treasury.

Let’s not forget Europe in these troubled times.  The European Commission has now formally called for a new tax on financial transactions amongst EU members.  Note EU members not Euro members.  The UK Government has made its opposition clear to this proposal and in particular on the ground that it would primarily be a “London tax”.  Not yet seen or heard what the Scottish Government think of this proposal.

I wonder if the European Commission’s proposal will be mentioned at the UK Conservative party conference.