Regulated businesses, particularly those in the financial sector, have been working on their Brexit contingency plans for some time.  However, many other businesses have been biding their time, waiting for the outline of any future relationship between the EU27 and the UK to emerge and to an extent relying upon the prospect of a transitional period to provide time to implement any structural changes.  Whatever the true likelihood of a deal, whether based on the Government’s Chequers proposal or “Canada +++”, businesses can no longer afford to discount the possibility that the UK will crash out of the EU without a deal on 29 March 2019. 

With that in mind, we have set out below our checklist of some of the key tax-related matters that finance and tax directors should be considering before Brexit day.  If you need assistance with any of these issues or simply a Brexit health check of your contingency planning, please get in touch with your regular Macfarlanes contact or alternatively one of our Brexit tax team whose details are at the end of this bulletin.

Customs duties and VAT

Goods

Importers of goods from the EU

• Apply for a European Operator Registration and Identification (EORI) number
  
  You will need an EORI number to be able to trade goods with the EU.  You can apply for an EORI number online.
  
  
• Apply for a duty deferment account
  
  Even if, post-Brexit, import VAT can be accounted for directly on the VAT return in line with the Government’s proposals, custom duties will continue to be payable at the time of entry of the goods into the UK.  A duty deferment account may help to mitigate the cash flow costs.  But you may need to provide a financial guarantee in order to obtain one.
  
  
• Engage a third party freight forwarder
  
  You should consider the implications for your business of the process for filing import declarations and whether it might be appropriate to engage a third party freight forwarder to assist. 
  
  
• Register for VAT on low value parcels arriving in the UK
  
  Low value consignment relief will be abolished for all parcels arriving in the UK, not just from EU27 states.  All goods entering the UK as parcels from overseas businesses will be liable to VAT.  For parcels valued up to and including £135, a technology-based solution will allow VAT to be collected from the overseas business selling the goods into the UK.  Once details are released by HMRC, businesses will need to register on this online system to be able to account for any VAT due.

Exporters of goods to the EU

• Appoint customs and fiscal representatives in relevant EU27 countries
  
  Businesses should familiarise themselves with the import processes in the various EU territories to which they will be exporting goods; certain territories may require the appointment of a customs or fiscal representative.
  
  
• Register for VAT in EU27 states
  
  UK businesses selling goods in EU27 states will need to register for VAT in the EU27 states where their sales are made.  Businesses should review the relevant rules in those countries to understand the filing, payment and refund mechanisms. 
  
  
• Consider the effect of EU VAT refund mechanisms
  
  Businesses should review the relevant rules to understand the filing, payment and refund mechanisms as the current EU VAT refund system will no longer be available.
  
  Some member states can be notoriously slow at issuing VAT refunds under the non-EU refund claim mechanism.  Businesses should review their supply chains to identify where the potential cash flow issues might arise.

Services

• Monitor changes to the “place of supply” rules for services
  
  If the existing rules were to continue to apply, input tax recovery may improve for input tax attributable to supplies of services made to EU customers.  But the Government has said the input VAT deduction rules “may be changed” for supplies made outside the UK.

Digital services

• Prepare to register under the non-EU scheme in order to rely on the Mini One Stop Shop (MOSS)
  
  For digital services supplied to consumers in the EU, the place of supply will continue to be where the consumer resides.  The UK MOSS will no longer be available for services electronically supplied to EU customers.  Businesses that want to continue to use the MOSS system will need to register under the non-EU scheme but can only do so after 29 March 2019.  However, the non-union MOSS scheme can apply if a business registers by the tenth day of the month following a sale.  Active businesses will therefore need to register by 10 April 2019 for sales made between 29 and 31 March 2019. 

Direct taxes

Payments of dividends, interest and royalties by and to UK companies

• Identify payment flows between UK resident companies and EU27 resident companies that rely on the EU Parent Subsidiary Directive or EU Interest and Royalties Directive for exemption from withholding taxes.
  
  
• Consider whether it will be possible to make a claim under an applicable double tax treaty to reduce or eliminate any withholding taxes that may arise without the benefit of the Directives and, if so, investigate the procedures that will need to be undertaken to claim treaty benefits
  
  Without a deal the Directives will no longer be available for payments by and to UK companies after Brexit day.  The UK has a wide treaty network which, in many cases, may replicate the effect of the Directives or at least mitigate the consequences of the Directives no longer being available.  But those treaty benefits will still need to be claimed.
  
  
• If treaty relief is not available, identify the cash flow costs and whether any steps can be taken to reorganise payment flows etc. to mitigate them.
  
  
• Consider whether or not it may be beneficial to make an election under s931R CTA 2009 to UK pay tax on dividends received
  
  UK double tax treaties with some EU27 states (e.g. Portugal) require dividends received by a UK company to be “subject to tax” in the UK in order to qualify for a reduced rate of withholding under the applicable treaty.  Dividends received by a UK company will usually be exempt from UK tax but it is possible to elect to disapply the exemption and pay UK tax on dividends, which may be beneficial if it helps to secure a reduced rate of withholding under the treaty.

Group structure

• Reorganise group structures to mitigate the consequences of UK companies ceasing to be EU companies
  
  The presence of UK companies in a corporate group involving other companies resident in EU27 states may break existing tax grouping relationships or consolidations.  This could lead to a clawback of reliefs in prior periods as well as an inability to claim group reliefs or tax consolidation treatment in future.
  
  
• Ensure that the position of UK companies in groups does not adversely affect the ability of EU27 companies to claim treaty benefits under double tax treaties with the US
  
  The presence of UK companies may affect the ability of companies in EU27 states to claim treaty benefits for example on payments to and from US companies (as a result of the limitation of benefits clause in relevant US double tax treaties).
  
  
• Review CFC rules in EU 27 states to determine if UK companies will become CFCs
  
  UK companies which are subsidiaries of companies in certain EU27 states (e.g. Spain) may no longer be able to rely on the exception for EU resident companies that can demonstrate valid economic reasons for their establishment.

Previous transactions and reorganisations

• Identify past transactions and reorganisations involving UK companies which have relied upon reliefs based on EU law which maybe clawed back when UK companies cease to be EU companies
  
  Legislation in EU27 states implementing EU Directives (e.g. the EU Mergers Directive) or fundamental freedoms under the EU Treaty may rely on a participant company being resident in an EU member state. 
  
  
• Identify any companies that have migrated to the UK from an EU member state 
  
  Once again, reliefs granted or tax deferrals on the migration may be clawed back in the EU member state from which the company migrated where he migrating company ceases to be resident in an EU member state.

Current group reorganisations

• Complete on-going reorganisations before Brexit day
  
  UK companies will not be able to benefit from certain reliefs after Brexit day, for example, transactions which rely upon the EU Mergers Directive or the Cross Border Mergers Directive.

Employment taxes - social security

Businesses with internationally mobile employees

• Review the social security status for any internationally mobile employees (into or out of the EU)
  
  If the UK leaves the EU without a deal the current EU regulations that help ensure internationally mobile employees pay social security in only one EU state will cease to have effect in the UK. Businesses with mobile employees (into or out of the EU) will need to review the social security payment arrangements for all such employees.
  
  Prior to the introduction of the current EU regulations a more limited number of agreements were in place between the UK and various EU states, however these are nowhere near as comprehensive as the current EU regulations and may prove problematic (for example covering only short time periods or third country nationals). There are countries with which the UK has no such agreements.
  
  This means that all international working arrangements will need to be reviewed to determine if a new social security obligations is triggered - this may result in necessary communication with employees, registration with tax authorities, payroll obligations and, in some cases, potential double social security obligations (in both the UK and abroad).