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David name changed for privacy is in his early 70s and lost his wife many years ago. He still works part-time in his business which is now primarily run by his son, and by the looks of his tax return, I am guessing he spends the rest of his time at the local casino. Why would I guess this? Lucky guy, right? Not really. He reported the same amount in losses. Even if his gambling habit is a wash, it will be costing David thousands extra each year in taxes.
The Balance Taxes. Full Bio Follow Linkedin. Follow Twitter. Dana Anspach wrote about retirement for The Balance. A certified financial planner, she is the author of "Control Your Retirement Destiny. Read The Balance's editorial policies. You might also find it beneficial to talk with a registered tax professional - find one in your area by searching the Tax Practitioners Board register. Hope that helps! Hello, thanks this has cleared up alot, still a few things.. Thank you. An investor will buy some shares maybe a few times a year and either hold onto them or sell them after a while.
A share trader is a person who carries out business activities for the purpose of earning income from buying and selling shares. For a share trader:. I would strongly suggest that you see a Tax Accountant initially so that you are aware of all of your obligations. If you paid brokerage fees and commisions to aquire the shares then yes they are deductable. As macfanboy has explained if you're a trader you generally entitled to claim brokerage fees and commissions you've paid in order to conduct trades.
Does this help to answer your question about claiming 'the spread'? You can find more information about if you need the individual tax return instructions supplement section here. Hello, yes I would be interested in recieving a private ruling stating that I am a trader, how do I proceed? I also would like to view the tax return itself but since it's online and unreleased I don't feel I can accses it, the individual tax supplement form just says to do it online, perhaps there is a form from a few years back that I can practice answering the questions on in order to prepare?
If you are concerned and interested on how it is filled out then go and pay a tax agent to complete it for you, ask them lots and lots of questions, ask for a FULL copy of the return and then ask more questions. You can find this information and more about applying for a private ruling on our website here. You can also view the Supplementary tax return and the supplementary tax return instructions on our website.
I have seen on this topic that my trading patterns qualify as business activity. I will therefore need to declare the outcome of my trading activity on my tax returns either as a profit or a loss. The particular application I have in mind is profits left within my trading platform account i.
As is often the case this question is best illustrated by example. If possible please advise on how the above scenario should be recorded on my tax return and feel free to include any caveats that may also apply, especially if they relate to commonplace activity for platform traders.
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The maximum percentage of Social Security benefits that can be subjected to federal income tax is 85 percent, Becourtney said. Becourtney said Social Security benefits are exempt from New Jersey income tax. All out-of-state lottery winnings are reportable regardless of the amount, Becourtney said. Sign up for NJMoneyHelp. Note to readers: if you purchase something through one of our affiliate links we may earn a commission. All rights reserved About Us.
The material on this site may not be reproduced, distributed, transmitted, cached or otherwise used, except with the prior written permission of Advance Local. Community Rules apply to all content you upload or otherwise submit to this site. A majority of Social Security beneficiaries living overseas get their benefits electronically with direct deposit, so they should receive the stimulus money in the same way.
Answer: Yes. Any taxpayers are eligible, regardless what type of benefit they receive from the Social Security Administration, so long as they are meet the requirements. Question: I collect back pay from Social Security disability benefits, which pushes my adjusted gross income above the threshold. How will the government calculate that figure?
Question: I earned much more in or than I do in , in which I would qualify for some or all of the full check amount. Answer: The package provides no guidance as to how the Treasury Department will sort through these scenarios yet. It is possible the government will set up a special request program as the year goes on, Hopkins said. Some taxpayers may have to wait to clear up this issue next year when they file a tax return in , in which case they would receive a credit for the rebate check, he added.
Question: Do disabled adults get any check if another taxpayer claims them as a dependent? Answer: No, individuals must not be claimed as dependents by another taxpayer to be eligible. How will the government know I exist if I qualify for a check? Answer: Eligible individuals will need to file a simple return in order to receive the checks. The Treasury Department is creating a web-based portal for people to input their banking information for the IRS will use so that individuals can receive payments immediately, the agency said.
They will need to include their filing status, number of dependents and bank account information for direct deposits. Those who are not typically required to file a tax return will not owe tax for sending in a return. More information will be available at a later time on the IRS page for coronavirus updates.
Alessandra Malito is a retirement reporter based in New York. Economic Calendar. Retirement Planner. Sign Up Log In. Home Retirement. Receiving Social Security disability benefits?
This can sometimes impact the tax position. In the UK for example, this form of speculation is tax-free. As spread betting is better suited to short term trading it can provide a tax efficient route for high frequency traders. Every tax system has different laws and loopholes to jump through. Having said that, the west is known for charging higher taxes.
Tax on trading profits in the UK falls into three main categories. The HMRC will either see you as:. As long you do your tax accounting regularly, you can stay easily within the parameters of the law. They may be used interchangeably, but your obligations will vary drastically depending on which category you fall under. They are defined as follows:. Will it be quarterly or annually? Each status has very different tax implications. Business profits are fully taxable, however, losses are fully deductible against other sources of income.
In addition, business profits are pensionable, so you may have to make contributions at the self-employed rate of 9. Day traders have their own tax category, you simply need to prove you fit within that. Taxes in India are actually relatively straightforward then. However, seek professional advice before you file your return to stay aware of any changes. The tax implications in Australia are significant for day traders.
Unlike in other systems, they are exempt from any form of capital gains tax. Once you meet these requirements you simply pay tax on your income after any expenses, which includes any losses at your personal tax rate. The only rule to be aware of is that any gain from short-term trades are regarded as normal taxable income, whilst losses can be claimed as tax deductions.
Paying taxes may seem like a nightmare at the time, but failing to do so accurately can land you in very expensive hot water. The tax consequences for less forthcoming day traders can range from significant fines to even jail time. Over time this can reach So, think twice before contemplating giving taxes a miss this year.
It is not worth the ramifications. The good news is, there are a number of ways to make paying taxes for day trading a walk in the park. Below several top tax tips have been collated:. To do this head over to your tax systems online guidelines. Follow the on-screen instructions and answer the questions carefully. Then email or write to them, asking for confirmation of your status.
Once you have that confirmation, half the battle is already won. Some tax systems demand every detail about each trade. So, keep a detailed record throughout the year. Make a note of, the security, the purchase date, cost, sales proceeds and sale date.
Nobody likes paying for them, but they are a necessary evil. You need to stay aware of any developments or changes that could impact your obligations. You never know, it could save you some serious cash. The end of the tax year is fast approaching. All of a sudden you have hundreds of trades that the tax man wants to see individual accounts of. That amount of paperwork is a serious headache. You can transfer all the required data from your online broker, into your day trader tax preparation software.
If you want to be ready for the end of tax year, then get your hands on some day trader tax software, such as Turbotax. Day trading and paying taxes, you cannot have one without the other. Taxes in trading remain a complex minefield.
Unfortunately, they are not avoidable and the consequences of failing to meet your tax responsibilities can be severe. Utilising software and seeking professional advice can all help you towards becoming a tax efficient day trader. Bonus Offer. Low Deposit.
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He noted that the axiom was proved true in that he and other investors had lost significant sums of money on a number of occasions. He said that as a general rule the higher the volatility the risker the index. In the absence of the CSO, Heronden would have had to obtain a hedge elsewhere and the costs of doing so would have been factored into the pricing.
Heronden advised that, if no CSO was entered into, Heronden would have required a Stake of around three times the amount of the actual Stake. Mr Forsyth gave consistent evidence on this at the hearing see  and . However, I do not accept that this indicates that these contracts were entered into by way of speculative spread betting see .
Usually Ms Baker entered into contracts first and then he did on the same or a similar basis. Any discussions with Mr Hughes were on a much more general basis. He tended to mirror the transactions which Mr Forsyth and Ms Baker did but invested higher amounts. It was only at the board meetings that the novation requests were considered by the Individuals as directors.
He said that the Individual approached the counterparty to see what would be needed for the counterparty to agree to a novation and then asked the appellant regarding the novation. It was entirely up to the appellant whether it was appropriate to do so on each occasion when it was approached and to determine the price it required from the Individual for doing so. He was aware that under the Black-Scholes method the valuation was likely to be higher the longer he held the CSO thereby increasing his tax liability as regards the benefit he received on the valuation.
She was not paid any sums to compensate her for her loss on the Bet. At the hearing Mr Forsyth gave the following evidence. Terms and effect of the CSO and Bets As was consistent with his comments in his witness statement, he said that there were a variety of choices in structuring the transactions:.
And weighing those up, we decided that a three-month trade which would last days…; the affordability of the stake that was required and the hurdle rate, the likelihood of success, the historical chance of success, which would be factored into the option price. So weighing all those up, that was why we were determined to go with that bet structure at that particular time. Mr Forsyth accepted this but was somewhat laboured in his responses in getting to that position:.
He said. He agreed that in that scenario a person would make a loss to this extent whether he won or lost the Bet and that the higher loss simply reflected the fact that Heronden had to pay betting duty on profits. I think if you look at the…. He said:. Novation of the CSO Mr Forsyth was asked a number of questions about whether it was intended at the outset that the CSO was to be novated. Whilst again he was somewhat laboured in getting to this position he confirmed, in effect, as is in any event apparent from the economics of the transaction, that it was not possible for the individual to profit from the transactions unless the novation of the CSO took place.
It was put to him that, therefore, there is no arbitrage between the two contracts. He later agreed that under the BF July transaction he put up a significant Stake in respect of transactions that looked at as a pair and, disregarding novation, could only make a loss as set out above.
And when they were novated there was a cancellation feature, so that the novatee could effectively extricate themselves from…the contract. And when we first had…those discussions with the entities mentioned there, they said. It was put to him that by getting rid of the CSO a few days after entering into it, the individual merely put himself back in the position he would have been in by taking out the Bet only; he was then exposed to the risk of losing the Bet and having to pay out a significant amount.
He said he disagreed with that and said that there were benefits as he had set out in his witness statement see [68 5 ]:. The risk would have been much greater, so you would have had to put up a significant more margin. So they require much less margin in taking out the transactions. It was put to him that entering into the two transactions meant that the individual had to put up less Stake but the outcome is the same and the ultimate risk is the same. He was insistent that this was not right:.
They are just governed by their client money rules……. Mr Forsyth was asked a number of questions on the pricing and his expectation of success under the Bet. He noted, however, that:. So we were doing it here with… what the market believed would be a very small chance of success.. It was put to him that there was no discussion beyond the risk profile he accepted was of concern and the type of investment or the type of fund that a person would be investing in.
So there was lots of discussion around what the possibilities were, what funds could be used. It was put to him that within the two thresholds under the Bets and CSOs there is a range of outcomes but looking at the historic position the outcome had only been within that range once out of 60 iterations. It was put to him that meant that effectively the position was binary in practice.
He agreed that it did not fall within that range in any of the iterations in dispute but noted that on:. Once or twice…there was only ever 12 transactions a year, so in that year once or twice out of 12….
He agreed that, in practice, in the great majority of cases, the result was either that the transaction was below the lower threshold or that it was above the higher threshold. It was put to him that you cannot have a limit on the downside without accepting the limit on the upside.
He agreed that in referring to the amount of risk, one element is the limit on the downside. It was put to him that the disappointing performance of Heronden in , led the appellant to switch all or most of the transactions to using Capital Financial Markets as the counterparty in He said that:.
It was put to him that the reason the three Individuals did not trade for a period was because they wanted to wait and see that they had found someone who could deliver the results that they wanted. Involvement of the appellant and setting the level of the trades It was put to him that realistically the only people to whom a person might divest himself of the CSO would be an employer or EBT.
He responded that: So someone who would have an interest in agreeing the novation. I think you could have gone into the marketplace and divested it to a third party. It would have been a more expensive option. It was put to him that the reason it would have to be a rich uncle or someone else who wanted do a favour is that the CSO was likely to lose. It was put to him that he was viewing the chance of making a profit under the CSO with hindsight and that the advice received before the novation was that the CSO was likely to lose.
Yes, so the advice to the company is different to the advice I received, I agree with that. He was shown the section in the advice letter sent by Aston Collie to the appellant where it was stated that if this were a stand-alone transaction with no corresponding benefit arising to the employee, it would not be a suitable transaction for the company to enter into.
He said that was not the advice he received but the advice given to the appellant and noted that it was addressed to Garry Hughes. It was put to him that the appellant knew all of this as the Individuals were all directors of it. So in my opinion, I do not believe that the company had the knowledge of what I was doing as an individual at that time until I had approached it.
He did not agree that because the Individuals controlled the appellant they could ensure that the novation took place. It was put to him that it was always intended that the novation would take place because that is how the tax advantage is gained. The company agreed to the novation, yes. When I took out the spread bet and the option, I was absolutely acting in my own personal capacity and completely separate from the company.
It was put to him that the appellant knew in advance that, if it were asked to novate a CSO or similar financial contract in these circumstances, it would be doing so on the basis that the novation was a benefit to him. He said that he disagreed in respect of the July transactions because the appellant had never been approached, so it would be the first time it had been asked to consider the novation. It was put to him that all the directors knew what was going on and the appellant had taken advice.
He was taken to the Grant Thornton letter. He said that this was:. It was… not in respect of the transactions I undertook, it was in respect of giving advice to clients on what the accounting treatment of the novation might be and - but it was not requested in respect of transactions that its own employees may or may not have undertaken or go on to undertake. I traded again until December , I think, from that failure in He accepted that she used the scheme not just once but several times between and and that she was successful on all these occasions bar one in It was put to him that the level of remuneration the Individuals took from the appellant was small disregarding the winnings from the Bets.
So we would pay what I would regard as fairly substantial bonuses, discretionary bonuses to employees for good…. It was put to him that they did not agree on bonuses because they wanted the funds in the appellant to enable it to undertake the novation of other CSOs without risking bankruptcy. So, for example, we wanted to put a larger pool aside to pay for contingencies and, you know, that was the kind of main priority, plus there was also…..
And then, of course, what happened was in that month period the ownership and the employees changed. So Garry left in December And - yes, and of course what happened was the individuals, they stood - the company might have made a profit, as it did in , but there was certainly no agreement, for example, that the individuals would rerun again or if the company won a significant sum of money under the option, as it did do, that would then be paid out in the bonus, for example, if it failed.
It was put to him that, in order for that approach to work, the level of potential gains and losses on the Bet and the CSO had to be set at an appropriate level. It was put to him that the maximum winnings and loss under the Bet and the CSO had to be set at the right level because the CSO is what the appellant is asked to novate. He agreed that was correct. He did not explicitly agree that the maximum loss under the CSO depended on the likely level of available resources within the appellant but said he would put it a different way:.
So when we undertook the transactions, yes, we… would have been mindful about what level we thought the company might be able to…. It was put to him that that was why in each case the level is pretty much the same. I would have would have wanted to know personally what it would cost me to undertake the transaction and I wanted to know that she would have thought that the - the company could have afforded to agree to that type of novation…..
There was some kind of sense check. He agreed that Ms Baker picked the figure and, subject to sense checks, he followed. It was difficult to kind of sit down. Do I believe that we used our knowledge about what we thought the company might be able to agree to? Yes, of course we did. Now you may think that is an unimportant distinction, but for us it was important.
We…took our duties very seriously and, of course, we advised clients on the same matters and we advised them to take…care in demarcating their roles. So, yes, we did. We stopped - had a board meeting, we would stop and then have a break and then reconvene after that, having voted on it qua shareholder. He confirmed that there was no difference between the baskets or the strikes or the barriers between the transactions undertaken by him and Mr Hughes in The transactions were all the same as the Individuals had done in except that in the CSO was novated to the EBT and in it was novated to the appellant.
He thought that in the Basket would have changed as well. Mr Forsyth was taken to the figures in the accounts as set out above. It was put to him that the Individuals took all their remuneration from the appellant by means of the novation mechanism. What the company was affording me the opportunity to do was make a profit on the Bet that I took out.
And so what these figures here represent are effectively…. It was noted that in the advice letter the company was told that the novation was likely to be onerous and effectively could only be justified because it was a benefit to people that the company was entitled to benefit. He agreed essentially that the result under the Bet and the CSO when novation took place was as set out above and in each iteration where he won that result would be the same except as regards any change in the underlying amounts.
Precisely, yes. It was put to him that on the basis of the advice he received from Aston Collie, he not only wanted it to win but expected it to win. In did I expect the bet to win? I probably would have had a much greater concern for the bet succeeding in December , but I probably thought it was worth a go…because I had seen this catalogue of failures…. So always at the back of my mind there was a little nagging - you know, that something…warning me that past performance cannot…be a guide to future performance.
Did I expect it to win? Maybe not so much in - certainly not so much in December It was put to him that in any event, even if he lost, it was not the end of the world because that just meant that the profit accrued to his company. So I lost and the company won, yes. I think, you know, Garry had that…. So, yes, I took - and I was very, very conscious that life gets in the way of things. So something large could have happened.
So say, for example, in January we got hit with a. It was put to him that barring unforeseen events of the sort he referred to, the failure of the Bet would be mirrored by a success on the CSO that would increase the funds available in the appellant to pay remuneration or dividends, or whatever, to the Individuals. It was put to him that such funds could be available to him if he wanted to run the scheme again or that the next time the scheme was run he could increase the amounts involved.
He said that the prospect of losing the Bet:. He was questioned as regards his statement that he was not aware of the amounts that Mr Hughes had staked on the first or second iteration. He said that he. I think he traded much later than I did….. He would have known after I…. It was put to him that this clearly indicated that there was co-ordination. It was put to him that in December there was clearly co-ordination because the amounts were exactly the same.
So there would have been…. He agreed that he meant that he would have had a greater understanding of the amounts available in respect of the December iterations. He confirmed that the appellant never refused a request for a novation of a CSO. It was put to him that the intended tax outcome was ultimately to deliver cash into the hands of the employee. That was the whole genesis and nexus of these transactions. I mean, the way in which that would be achieved would be by having a cancellation feature which the company could just…execute whenever they wanted.
This transaction was a very, very different thing. So I would say it was precisely the opposite of that intention. It was put to him that it is obvious that the intended end result of the transaction was that the employee who had taken out the Bet and the CSO would end up with cash in his or her hands of a significant amount. I would refine that by saying hopefully by way of profiting from the spread bet which he had taken out.
It was put to him that the intended tax consequence so far as the individual was concerned was that there would be a relatively small CGT charge on the Initial Premium received under the CSO and a very small income tax charge on the asserted value of the novation of the CSO. It was put to him that anyone entering into these transactions would, on the basis of his advice, expect that tax outcome.
It was put to him that he and anyone undertaking the scheme would have believed that they were more likely to win than lose. He was asked if he was saying that people would have undertaken this Bet expecting to lose. It was put to him that the intention was that the employing company who accepted the novation would be able to claim a deduction, not just for the cost of novation but for the total amount paid if it lost the CSO.
He said that followed on from the Grant Thornton advice. The appellant claimed that deduction which was why its profits were reduced to almost nil. Role of Heronden and Aston Collie It was put to him that there was not even a credit risk to Heronden.
He agreed that was the case at the outset and broadly speaking that was correct at any stage in these transactions. It was put to him that there was a change as regards the transactions after the July transactions to introduce the restrike mechanism but that just reduced the Margin or Stake requirements. Heronden would still be liable to pay out on its transactions and things like that. He agreed that the restrike position was to protect Heronden because, following novation, it would only be liable to pay the winner on the Bet once it had received the payment from the company that had lost the CSO.
He agreed but noted that as regards the transactions in the CSOs were not novated to the appellant:. It was more,. He agreed that whilst Heronden were not aware of precisely what was going to happen, of course Heronden knew how the transactions were generally going to play out. It was put to him that when he asked Aston Collie to advise a suitable counterpart, he knew they would put forward Heronden. I mean, the reason that we transacted with Aston Collie providing financial advice is a we certainly would have wanted Aston Collie to provide financial advice to the company, and b I got extra protections, because I was treated as a retail client, so….
It was put to him that he wanted Aston Collie to confirm the details of the contracts but he knew the shape of it. He thought that was right and added that he wanted them to liaise with Heronden on his behalf, check the contracts, provide advice to him and then act as a go-between between him and Heronden in order to execute the contracts.
He agreed that Aston Collie essentially gave the same advice each time to all those who undertook the transactions with the only differences being in some of the details and the credit mechanism. I mean, the structure of the advice letter was very similar depending on the iteration…. So basket type, trade length, the split of the initial premium to final premium, things like that, so -- but, yes, taking into account all those changes…the advice would have taken into account the changes and details of contracts.
Submissions It was not in dispute that the correct approach to determining if the transactions involved the payment of employment earnings to the Individuals is to apply a purposive construction of the relevant provisions to the facts viewed realistically as summarised by Lord Nicholls of Birkenhead in Barclays and endorsed most recently by the Supreme Court in Rangers.
On a realistic view, the overall effect of the transactions was to deliver cash to the Individual as a reward for their employment services; and. In outline, Mr Vallat considered that the following main conclusions can be drawn from the evidence in support of this analysis:. Entering into the contracts otherwise made no sense for the Individuals given that if they held them to term they would inevitably have made a loss.
The Individuals were the controlling minds of the appellant and any knowledge they had should be attributed to it. In any event, by the time of the transactions in the appellant was well aware of steps involved in the scheme. The likely outcome under both the Bet and the CSO was effectively binary.
In any event, that is certainly not what these Individuals did. It accepted the novation of the potentially onerous CSOs because it wanted to provide remuneration to the Individuals. Its role was to enable cash to pass from the appellant to the Individuals. Whilst the chance of an adverse outcome under the Bet and CSO might have been higher than the chance of the relevant contingency occurring in that case, the position has to be looked at in context.
On that approach:. In Abbott v Philbin it was held, in effect, that an employment tax charge arose to an employee on the grant of a share option to him but that there was no further employment tax benefit when the option was exercised; any further benefit arose from his rights under the option and did not relate to his employment.
The link with employment ends at that point. The effect of the novation, therefore, is that the payments under the Bets and CSOs are not linked with employment. Mr Bremner drew very different conclusions from the evidence to the conclusions drawn by HMRC and placed emphasis on different factors.
In outline, he made the following main points:. The risk of a loss under the Bets was very real and significant and in fact materialised in and There was no certainty that there would be further trading in those circumstances and there were no arrangements for that to occur. This is evident from the fact Mr Hughes invested larger amounts than the other Individuals as reflected his own investment decision. The reward provided by the appellant was removing the risk inherent in the CSOs that a sum of money might have to be paid to the option holder.
The Individuals may have hoped and even expected that this would happen but that does not make that outcome preordained. In support of this view of the facts, Mr Bremner stressed that, in his view, Mr Forsyth was clear that he entered into the transactions in his personal capacity and that he distinguished when he was acting in his personal capacity and when he was acting as a director of the appellant. He said that the fact that the Individuals may have been mindful of what would be an appropriate level of remuneration simply shows that they were realistic in the requests that they proposed to make of the appellant.
He submitted that the fact that a company may be attributed with the knowledge of its directors does not mean that the company has made a decision or that there is an arrangement in place as to what the company would do. Mr Bremner said that, having regard to the facts as set out above, the circumstances of this case are not akin to those in Scottish Provident. There is no evidence that the parties proceeded on the basis that these genuine and significant risks could simply be ignored.
He said that the fact that the Individuals hoped to win the Bets does not alter the fact that the Individuals entered into them and were genuinely exposed to the risks and rewards of doing so. Outcomes that the parties want to happen or consider likely to happen are not to be treated as if in fact they have happened for tax purposes. Those risks were an inherent part of the position taken by the Individuals and the appellant.
Money in a company is not a fund that its employees can draw on freely. The three directors would have to agree collectively on how to deal with any such funds and there could, of course, be tax consequences for the Individuals if such decisions were taken. On that basis this structure would not be fit for purpose as a scheme to extract money tax-efficiently from the appellant.
Here the individuals had to find a Stake to enter the Bets and were certainly at risk of loss if the Bets did not win. Heronden is a financial bookmaker who naturally might be expected to take a position that effectively enabled it to earn fees through the spread. Mr Bremner submitted that the decision in Rangers has no bearing on this case.
In that case, it was clear that the sums paid through the trust arrangements represented remuneration for employment. The only question for the Supreme Court was whether it affected the tax position that the employees did not have a legal right to receive the monies. In this appeal, the tribunal is required to assess, in effect at a prior stage, whether the relevant amounts constitute remuneration in the first place.
They do not for all the reasons already given. He described it as unintelligible in that context, to characterise the Individuals as agreeing or acquiescing in the appellant making a payment of remuneration. It is irrelevant that, in deciding whether to take on the CSOs, the appellant took account of what remuneration might be appropriate for the Individuals in the future. In any event, looking at the broader context, the effect was simply that the Individuals were put in the position where they were exposed to the risk only of the Bet.
This an unprincipled and misconceived attempt to stretch the decision of the Supreme Court in Rangers far beyond its proper scope. Further submisisons Mr Vallat submitted that the facts and circumstances here, as outlined above, are materially different from those in Abbott v Philbin.
As regards Rangers, Mr Vallatt said that he was not suggesting that Rangers itself answers the question of whether the relevant payments were remuneration. Rangers provides the answer that, if the payments were remuneration, it does not affect the position that they were paid to Heronden rather than the Individuals.
Clearly, matters were set up so that the appellant made the Heronden Payments pursuant to the CSOs, but the tribunal must look at the broader context as to the reasons why the CSOs were entered into. On the evidence the appellant was willing to pay remuneration of the relevant amount to the Individuals and the Individuals and the appellant together put in place the Alchemy transactions in a clear attempt to change the tax consequences of a simple payment to the employee.
The fact that it was in substance remuneration explains why it is shown as such in the accounts. The whole point of the grant of the option in that case was to enable the employee to profit from any increase in value of the company. The tribunal must look at the nature of the benefit provided and cannot ignore the fact that here the benefit lies in the individual being released from the rights and obligations under the CSO and left free to speculate in relation to the Bet.
Discussion and decision Caselaw — meaning of earnings from employment In that case ICI operated a scheme under which it made a tax-free loan to an employee to enable him to purchase a house. Under the terms of the scheme when the employee was later transferred to another place of work and sold his house at a loss, ICI made good the loss.
In this case he thought there was little doubt on which side of the line this case fell; the payment was not a reward for services. Lord Radcliffe agreed with Viscount Simmonds but added some comments of his own. But it is perhaps worth observing that they do not displace those words. For my part, I think that their meaning is adequately conveyed by saying that, while it is not sufficient to render a payment assessable that an employee would not have received it unless he had been an employee, it is assessable if it has been paid to him in return for acting as or being an employee.
Lord Denning said, at , that it was essential to focus on the words of the statute. Viscount Simmonds said, at pages to , that the option was a valuable right that could be turned to pecuniary account. He thought there was no relevant limitation of their meaning except in the words of Lord Watson in Tennant v Smith ,  A. He continued that it could not then be said that an option to take up shares at a certain price is not a valuable, or at least a potentially valuable, right:.
I do not want to embark on the notoriously difficult problem as to the year to which, for the purpose of tax, a payment should be ascribed if it is not expressly ascribed to any particular year. But I do not find it easy to say that the increased difference between the option price and the market price in or, it might be, in , in any sense arises from the office.
It will be due to numerous factors which have no relation to the office of the employee, or to his employment in it. The contrast is plain between the realised value, as it has been called, of the option when the shares are taken up though the realisation falls short of money in hand and the value of the option when it is granted. For the latter is nothing else than the reward for services rendered or, it may be, an incentive to future services.
Unlike the realised value it owes nothing to the adventitious prosperity of the company in later years. On this ground also I should reject the claim of the Crown. Lord Radcliffe agreed that in any event there could be no taxable event when the option was exercised and Lord Reid thought it was highly doubtful that there was but did not want to express a conclusive view on the point.
There would be no relation whatever between the service during that year and the giving of the option many years earlier, or the exercise of the option during the later year. I do not wish to express any concluded opinion on this point, but it does seem to lend support to the conclusion which I have reached on other grounds.
The quantum of the benefit, which is the alleged taxable receipt, is not in such circumstances the profit of the service: it is the profit of his exploitation of a valuable right. Of course, in this case the year of acquiring the option was only the year immediately preceding the year in which, pro tanto, it was exercised.
But supposing that he holds the option for, say, nine years before exercise? Lord Diplock rejected the view as Brightman J had held that there was no taxable benefit as a result of the grant of the right to subscribe for shares to the employee due to the uncertainty when the employee applied for his shares as to whether the price was in fact a preferential one or not.
In giving the judgement, with which the other Lords agreed, that it was an emolument Lord Templeman in effect endorsed the approach taken by Lord Radcliffe in the earlier Hochstrasser case. He said that the term applies:.
He noted, at page 92, that the authorities have been concerned with those cases in which it is not clear whether an emolument has been paid to an employee for acting or agreeing to act as an employee or has been paid for some other reason. It did not matter to him whether these sums were paid by the clubs or by some other third party at page 92j. In Wilcock v Eve Carnwarth J held that no employment tax was due on a payment to a taxpayer by the group within which he was formerly employed which was made to compensate him for his loss of share option rights when he ceased to be employed on a management buyout of the employer company.
He continued, at 27e, that he would have found this a more borderline case but for the decision in Abbott v Philbin and he cited and referred to the passages from that 53 case set out above. Overall, he concluded that there was little difference between the two formulations.
In other words, was the employment the source of the emolument? He held that that provision also applied. However, he thought some gloss is inevitable because:. Something more must be established. This has been expressed in terms of the difference between causa sine qua non and causa causans but it does, on any view, require a sufficient causal link to be established between the payment and the employment.
He thought that the cases show:. I take this formulation from Lord Templeman in Shilton v Wilmshurst …. He said, at [52,] that it must follow from this that, in order to satisfy the test, one must be able to say that the payment is from employment rather than from a non- employment source. He noted that in all the cases he had referred to there are competing causes.
In each case the payments were in part motivated by feeling of generosity towards the recipient. The payment is then from the employment even if it also substantially attributable to a non-employment cause. In Barclays Lord Nicholls set out a detailed examination of the authorities on applying a purposive approach, from the seminal decision in Ramsay onwards. I have not set out the facts which are far removed from those in this appeal. He said that as Lord Steyn said, it was:.
He cited two passgaes from Ramsay:. There may, indeed should, be considered the context and scheme of the relevant Act as a whole, and its purpose may, indeed should, be regarded. He thought that was encouraged by two features characteristic of tax law, although by no means exclusively so:. The second is that a good deal of intellectual effort is devoted to structuring transactions in a form which will have the same or nearly the same economic. It is characteristic of these composite transactions that they will include elements which have been inserted without any business or commercial purpose but are intended to have the effect of removing the transaction from the scope of the charge.
However, he thought that was. The ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically. He said, at , that the need to avoid sweeping generalisations about disregarding transactions undertaken for the purpose of tax avoidance was shown by MacNiven v Westmoreland Investments Ltd  1 AC and, at  that that case shows:. It certainly does not justify the assumption that an answer can be obtained by classifying all concepts a priori as either "commercial" or "legal".
That would be the very negation of purposive construction: see Ribeiro PJ in Arrowtown at paras 37 and 39 and the perceptive judgment of the special commissioners Theodore Wallace and. He said, at , that the present case, like MacNiven, illustrates the need for a close analysis of what, on a purposive construction, the statute actually requires and then proceeded to apply the approach he had set out to the facts of that case. In Rangers, the taxpayer company RFC was a member of group of companies which set up a trust arrangement for the remuneration of employees.
The trustee had a discretion whether to comply with those requests, but, in practice, the trustee without exception created the requested sub-trust. The employee was appointed as protector of the sub- trust with the power to change its beneficiaries. Lord Hodge gave the judgment with which the other Lords agreed. Lord Hodge started with general comments on the correct approach to take to the construction of the relevant provisions.
He noted, at , that the legislative code for the taxation of income has developed over time to reflect changing governmental policies in relation to taxation, to remove loopholes in the tax regime and to respond to the behaviour of taxpayers. He said that this can be traced to the speech which Lord Nicholls of Birkenhead in Barclays, in which he explained the true principle established in Ramsay and the cases which followed it:.
In the past, the courts had interpreted taxing statutes in a literalist and formalistic way when applying the legislation to a composite scheme by treating every transaction which had an individual legal identity as having its own tax consequences.
Instead, he removed the interpretation of taxing statutes from its literalist enclave and incorporated it into the modern approach to statutory interpretation which the court otherwise adopts. He continued to explain, at , that Lord Nicholls at  recognised two features which were characteristic of tax law. He continued:. That, he said, was going too far.
Instead the court had, first, to decide, on a purposive construction, exactly what transaction would answer to the statutory description and secondly, to decide whether the transaction in question did so para Secondly, and equally significantly, it established that the analysis of the facts depended on that purposive construction of the statute. He summarised the position, at , noting that three aspects of statutory interpretation are important in determining the appeal.
As a result provisions imposing specific tax charges do not necessarily militate against the existence of a more general charge to tax which may have priority over and supersede or qualify the specific charge……. Secondly, it is necessary to pay close attention to the statutory wording and not be distracted by judicial glosses which have enabled the courts properly to apply the statutory words in other factual contexts.
Thirdly, the courts must now adopt a purposive approach to the interpretation of the taxing provisions and identify and analyse the relevant facts accordingly. He concluded, at , that accordingly the proper approach was, first, to interpret the relevant statutory provisions purposively and, secondly, to analyse the facts in the light of those statutory provisions so construed.
In his view, at  and , a careful and detailed examination of the provisions of the primary legislation revealed no such requirement. Moreover, at. He concluded, at , that as a general rule, therefore, the charge to tax on employment income:. The legislation does not require that the employee receive the money; a third party, including a trustee, may receive it. He said that whilst there are certain exceptions from this rule there is no exception as regards ss 62 2 a or c.
That case concerned legislation in New Zealand which provided that income tax was payable by every person on income derived by him during the year for which tax was payable. A partner in an accountancy firm assigned a proportion of his share in the partnership to a trust under which the primary beneficiaries were his wife and child. The New Zealand courts rejected his argument that he was not liable to income tax on that proportion of his annual partnership income.
Lord Hodge noted that:. In that case, a taxpayer company voted to award bonuses to its two directors and controlling shareholders and credited the sums to accounts with the company from which the directors were free to draw. The directors did not draw on those sums. HMRC assessed the company to tax, arguing that the company should have deducted tax under the PAYE system on the full sums credited to those accounts.
Different considerations would have arisen if a further decision by the board of directors or by the shareholders in general meeting was required before the money could have been withdrawn. Lord Hodge said that the interpretation or gloss which Walton J placed on. However, at , there was a limit to this in that:.
Yet it has been so used. No persuasive rationale has been advanced for excluding from the scope of this tax charge remuneration in the form of money which the employee agrees should be paid to a third party, or where he arranges or acquiesces in a transaction to that effect….. The scheme was designed to give each footballer access without delay to the money paid into the trust, if he so wished, and to provide that the money, if then extant, would ultimately pass to the member or members of his family whom he nominated.
At , he said that the fact that there was a chance that the trust company as trustee of the main trust might not agree to set up a sub-trust and that as trustee of a sub-trust it might not give a loan of the funds of the sub-trust to the footballer, did not alter the nature of the payments to the main trust.
He based that conclusion on the approach taken in the Scottish Provident case:. The fact that the risk. Accordingly, at , payment to the trust should have been subject to deduction of income tax under the PAYE Regulations. I note that also in an employment tax context Lord Reed expressed a similar view, that a composite scheme should be considered as it was intended to operate, in UBS see  to .
The Scottish Provident case, on which these views were based, concerned a scheme designed to take advantage of a change in the law governing the taxation of gains and losses made by mutual life offices on the grant or disposal of options to buy or sell gilts. Under the scheme:. Under the law then in force, the premium was exempt from tax.
Under the law then in force, the loss was allowable for tax purposes. In order to ensure that no real loss could be suffered by either party, the scheme also provided for Citibank to grant an option to SPI, entitling it to buy a matching quantity of gilts from the bank at a strike price of 90, calculated so that the overall movements of money between the parties were equivalent.
In the event, both options were exercised, and neither gilts nor money changed hands. He then referred to the purposive approach set out in caselaw:. Inland Revenue Commissioners  A C it has been accepted that the language of a taxing statute will often have to be given a wide practical meaning of this sort which allows and indeed requires the Court to have regard to the whole of a series of transactions which were intended to have a commercial unity.
Indeed, it is conceded by SPI that the Court is not confined to looking at the Citibank option in isolation. If the scheme amounted in practice to a single transaction, the Court should look at the scheme as a whole. Aaronson Q. There was no commercial reason for choosing a strike price of. From the point of view of the money passing or rather, not passing , the scheme could just as well have fixed it at 80 and achieved the same tax saving by reducing the Citibank strike price to.
It would all have come out in the wash. Thus the contingency upon which SPI rely for saying that there was no composite transaction was a part of that composite transaction; chosen not for any commercial reason but solely to enable SPI to claim that there was no composite transaction.
It is true that it created a real commercial risk, but the odds were favourable enough to make it a risk which the parties were willing to accept in the interests of the scheme. We would be back in the world of artificial tax schemes, now equipped with anti-Ramsay devices. The composite effect of such a scheme should be considered as it was intended to operate and without regard to the possibility that, contrary to the intention and expectations of the parties, it might not work as planned.
At  he concluded that it follows that the Special Commissioners erred in law in finding that there was a realistic possibility of the options not being exercised simultaneously meant, without more, that the scheme could not be regarded as a single composite transaction. Conclusion Summary As set out in Barclays and endorsed most recently in Rangers, it is long established, following the seminal decision in Ramsay, that in determining this 63 question the tribunal must a give the employment tax provisions a purposive construction to determine the nature of the transaction to which they are intended to apply and b decide whether the actual transaction which might involve considering the overall effect of a number of elements intended to operate together answers to the statutory description.
In carrying out that exercise, the correct response is not simply in all cases to disregard elements of transactions which have no commercial value. The tribunal must decide, on a purposive construction, exactly what transaction answers to the statutory description and whether the transaction in question did so. As Lord Hodge recognised in Rangers, citing the decision in Scottish Provident, in applying this purposive approach to the interpretation of taxing provision in the context of a tax avoidance scheme it is legitimate to look to the composite effect of the scheme as it was intended to operate without regard to the possibility that, contrary to the intention and expectations of the parties, it might not work as planned.
With these principles in mind and, on the basis of the factual findings drawn from the evidence set out below, my view is that the Heronden Payments made by the appellant to Heronden, which in effect enabled it to pay the Bet Profits to the Individuals: However, viewing the overall effect of their carefully constructed payment profiles under the steps, which from the outset the parties intended to undertake in relation to them, it is plain that neither the Individuals nor the appellant undertook them in order to speculate on movements in the market.
In that case, the funds spent in seeking to extract the employment earnings from the appellant in a tax free form, became available, within the employer, a vehicle owned and operated by the three Individuals, to be returned to them in one form or another barring any wholly unexpected events.
In all the circumstances, the fact that the contingent nature of the outcomes under the Bets and CSOs was at the heart of the scheme, so that there was a real risk that the planning would not work as intended, does not evidence that the Heronden Payments or Bet Profits were payments generated under speculative betting transactions rather than employment earnings:. Rather it was carefully selected with a view to: Viewed in that context, whilst the Bets and CSOs were constructed to create a real commercial risk that the planning would not work, the odds of success were favourable enough and the odds of failure were sufficiently tempered by the design of the scheme, to make it a risk which the parties were willing to accept in the interests of the scheme.
Conclusions on the facts In their capacity as directors and employees of the appellant, the Individuals were at least in part responsible for devising the planning, they advised many clients on it in the standardised terms set out in the tax letter and, prior to the transactions, they took valuation, tax and, in March , accounting advice on it.