News - UK

UK - January 2013

Tax relief is due on claw back of bonus

A taxpayer wins his claim for tax relief in relation to his repayment to his employer of part of a sign-on bonus.

Background

The taxpayer entered into a new employment contract with his existing employer whereby he received a sign on bonus of 250,000 in return for his agreement to remain with the employer for at least 5 years. Under the contract, he was liable to repay part of that sign on bonus if he gave early notice to terminate the employment in breach of the 5-year commitment.

At the time of payment, the full amount was subject to UK income tax withholding (PAYE) and NIC. Additionally, the taxpayer reported the full amount as taxable income on his self assessment tax return for the tax year in which the payment was made.

The taxpayer subsequently gave notice early and became liable to repay 162,500 to his employer. However, the UK tax authorities (HMRC) denied any tax relief in relation to the repaid amount on the grounds that the full amount of 250,000 was earnings for the year in which it was received and that the fact that a portion of the bonus was repaid did not change that. It also contended that the repayment could not be regarded as "negative earnings" (a concept which is provided for under UK tax law) or that a claim could be made for employment loss relief under another part of the legislation.

The court agreed with HMRC that the sign on bonus was earnings and properly treated as such for the tax year in which it was received. However, it did accept the alternative contention by the taxpayer (that the repayment was a payment of "negative earnings") and concluded that the negative earnings should be aggregated with the "positive earnings" (140,000) received by the taxpayer in that same tax year. This resulted in nil earnings for the year in question. The court also determined that the remaining amount of the repayment (22,500) could be claimed under a different part of the legislation as "employment loss relief".

Commentary

Although an appeal may be made, the decision is still a timely one as more and more UK companies, under pressure from shareholders as a result of the financial crisis, are inserting claw back provisions into their bonus and share plans.

Resources

Julian Martin v HMRC [2013] UKFTT 040 (TC)

For further information or to discuss the issues raised, please contact John Mooney or Bina Gayadien on +44 (0)20 3051 5711 at Abbiss Cadres LLP, London - www.abbisscadres.com.

Disclaimer

Content is for general information purposes only. The information provided is not intended to be comprehensive and it does not constitute or contain legal or other advice. If you require assistance in relation to any issue please seek specific advice relevant to your particular circumstances. In particular, no responsibility shall be accepted by the authors or by Abbiss Cadres LLP for any losses occasioned by reliance on any content appearing on or accessible from this article. For further legal information click here.

Circular 230 disclosure

To ensure compliance with requirements imposed by the IRS and other taxing authorities, we inform you that any tax advice contained in this article (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties that may be imposed on any taxpayer or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Copying

If you would like to copy or otherwise reproduce this article then you may do so provided that: (1) any such copy or reproduction is for your own personal use or if it is made available to any third party it is done so on a free of charge basis; and (2) the article is reproduced in full together with the contact details, disclaimer and any logos as they appear on each article.