Twelve Reed Group organisations have lost an appeal in a case that concerned the tax treatment of travel and subsistence payments to staff.
The scheme was set up by way of a salary sacrifice arrangement.
The case, in the First Tier Tribunal, concerned payments made between January 2001 and April 2006 to temporary workers, which initially were understood both by HM Revenue and Customs (HMRC) and Reed Group to be travel and subsistence payments to employees.
The original understanding was encapsulated in a dispensation so that payments were part of the workers’ gross pay. The tribunal agreed with HMRC, however, the payments should have been subject to PAYE, with income tax deducted and accounted for, and both employer’s and employees’ national insurance contributions (NICs) accounted for.
One of the issues considered by the tribunal was: Was it an effective salary sacrifice arrangement?
HMRC contended that if a salary sacrifice is to be effective for tax purposes, the employee must actually agree to work in future for the reduced salary, and the employer must provide some other benefit in a form that is not readily convertible into money.
HMRC contended that there is no effective salary sacrifice if all the employer does is pay a part of the employee’s contractual salary in some other form, in particular by meeting or purporting to meet some or other of the employee’s expenses.
In the view of the tribunal, a salary sacrifice implies reciprocity: the employee gives up a portion of salary in exchange for an identified benefit provided by the employer. The tribunal determined that despite the employee giving up a portion of salary, Reed Group did not provide reciprocity and retained a significant portion from the arrangement, so it was not an effective salary sacrifice.
As the terms of the arrangement permitted employees to opt out of the arrangement at any time, the tribunal held that the supposed salary sacrifice was not an effective salary sacrifice, and that this feature of the arrangement alone meant it was ineffective as a salary sacrifice.
The amount at stake, including interest, is in the region of £158 million and concerns payments made to around 500,000 employees.
A spokesperson from Reed Group said: “We are extremely disappointed with the decision taken by the tax tribunal and we will be appealing.
“The case raises a number of highly complex legal issues and it has taken over nine months for this decision to be reached.
“We would like to clarify that this is a dispute between HMRC and Reed Group, and this case does not have an impact on temporary workers past or present. There has also been no decision taken on the size of the claim, and Reed Group disputes the figure proposed by HMRC.”
Inez Anderson, head of employment tax and incentives at Smith and Williamson, said: “In the Reed Group case, there was a really unusual set of circumstances and, unless the employer is an employment agency, then those circumstances are unlikely to apply to many employers.
“That said, it is always good practice for employers to review all the processes and procedures around salary sacrifice. The Reed Group case demonstrates that what is actually happening is more important than just what is being said.”
Alastair Kendrick, tax director at MacIntyre Hudson added: “While there are special rules for agency workers on travel and subsistence, the case says that this was not a factor.
“The Reed Group case is around a change in the employment contract and the quality of the paperwork, so it is not a valid salary sacrifice arrangement.”
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