Scotland Bill

I am grateful to the noble and learned Lord, Lord Davidson of Glen Clova, for his measured and reasonable approach. I think that I have had 57 varieties of questions and counting. Some of the questions are very technical and possibly do not go to the heart of the clause, but I will make sure that a letter sweeping up as many of the points as possible is written ahead of the Report stage so that all noble Lords have their queries addressed in good time. There are one or two questions that I had anticipated which we did not get to, such as the tax position of Scottish astronauts. I am sure that we could have found one or two other cases. The serious starting point of all this is that, as the noble and learned Lord, Lord Davidson of Glen Clova, points out, there is huge complexity already in the UK system on residence matters. We do not want to add unnecessary complexity in this Bill. Quite a number of the issues that have been identified in this interesting discussion already arise under UK tests, and are not particular to Scotland. Others are very much issues particular to Scotland. I believe that they have all been given consideration, but I certainly do not pretend that any of this will be simple. The reason it is not simple is not mainly because of what has been done in this Bill. It is simply because UK residence considerations are themselves already very complex. That is why the Government consulted last year—this is relevant background to the consideration of these clauses—on the introduction of a statutory definition of residence, to provide greater certainty for taxpayers about their UK tax residence status. That issue goes to the heart of a number of questions and concerns. The Government will legislate for that in the Finance Bill in 2013, and will help on all that flows from it, including the questions that we are discussing this afternoon. Having briefly said that as a matter of background, I know that other noble Lords are bit confused about what we are debating. For clarification, I believe that I am speaking to Amendments 54ZA, 54BA, 54BB, 54FA and 54FB, and whether Clauses 30, 31 and 32 should stand part of the Bill. I proceed on that basis. We start with a complex position in the UK; there is no denying that. The new Scottish rate of income tax sits within that framework. We want to ensure that taxpayers' businesses and employers across the UK can operate the rates that apply to Scottish taxpayers as simply and effectively as possible. Of course, some of these professional bodies are there to look for these really difficult cases and point them out. We will take them on board, if we have not already, in all the technical notes. The key thing is that we want to keep the overriding tests as simple as possible. Clause 30 sets out the definition of a Scottish taxpayer. A Scottish taxpayer will meet two tests in a tax year. The first is that the individual is UK-resident for tax purposes. The second is whether the individual meets any one of three conditions, A, B or C. Where they meet any one of these conditions, they can simply disregard the remainder. In answer to one overriding question which came from my noble friend Lord Steel of Aikwood, in applying these tests, as in so much that relates to taxpayers and their income tax returns, we of course rely on the basic honesty and decency of the British people to declare their tax affairs honestly. We want to make it as simple as possible, but we rely on their honesty, backed up of course by a whole range of penalties and HMRC being vigilant in looking for those who may not be declaring their affairs honestly. The overwhelming majority of the population declares things properly, but we need to keep it as simple as we can. Condition A is that the individual has a close connection with Scotland. That is defined in new Section 80E. If they have one place of residence in the UK and that place of residence is in Scotland, they will have a close connection with Scotland and will be a Scottish taxpayer, provided that they live there for at least a part of the year. That will be, I suggest, a straightforward test for the great majority of people. If someone has two or more places of residence in the UK, whether or not they have a close connection with Scotland will depend on whether their main place of residence is located in Scotland for at least as much time as somewhere else in the UK—again, provided that the place of residence is where they live. Condition B applies to those people who cannot identify a main place of residence. Someone who cannot determine with which part of the UK they have a close connection will need to count the number of days they spend in Scotland compared to the number of days they spend elsewhere in the UK. If they spend more days in Scotland than they do elsewhere in the UK, they will be a Scottish taxpayer. The number of people within this category—having to count the number of days—should be relatively few. I will come back to some of the instances that have been raised in this debate, where that is relevant. Finally, if someone represents a Scottish constituency in the Scottish, UK or European parliaments for any part of the year, they will meet condition C and be a Scottish taxpayer for that tax year, provided that they are UK residents. I suggest that we have made the starting position to the basic overlay to what is a complex UK test as simple as we can. However, my noble friend the Duke of Montrose has tabled some amendments relating to the definition of a Scottish taxpayer and brings up some important issues. Amendments 54ZA, 54BA, 54BB and 54FA seek to remove condition A of the definition. This would mean that all taxpayers who think that they may be Scottish taxpayers would need to apply condition B and, as a result, count the numbers of days spent in Scotland compared to the rest of the UK. As I have explained, we recognise that the need to keep a record of where one has spent days in Scotland and the rest of the UK adds a degree of complexity and is potentially onerous. That is why, in designing the definition, we have sought to keep the number of people who have to do this counting of days to an absolute minimum. My noble friend's amendments would mean that individuals such as lorry drivers, those who undertake shift work and those operating on the trains—an example that has been raised—on one side of the England/Scotland border but live on the other would, despite in all probability having very simple tax affairs, nevertheless need to keep a record of days spent in Scotland. We have designed a definition that will be straightforward for the majority of people to operate, and I do not believe that we should change that approach of simplicity. My noble friend has also tabled Amendment 54FB, which would seek to define what is meant by ““a day”” for these purposes. Under this definition, ““a day”” would be a period of 24 hours terminating at midnight. We have deliberately not included a definition of ““a day”” in the Bill, in order to keep in line with the way in which the UK residence test currently operates. This relies on where one is ““at the end of the day””; again, this would apply to a number of the cases that we have heard about. The phrase ““at the end of the day”” is used elsewhere in tax legislation. It is well understood by taxpayers and their advisers where it is relevant. Introducing a different statutory definition for the purposes of this Bill, I suggest, risks heaping confusion on something that starts off being perhaps not that simple. This is one of a number of areas in which we should not attempt to use the vehicle of this Bill to rewrite major areas of UK tax law, which are, as I have said in the case of residence, already the subject of major work. I take the general point made by the noble and learned Lord, Lord Davidson of Glen Clova, that we must think continually of simplification opportunities. The Government set up the Office of Tax Simplification with that very much in mind. It may help him to know that the tax director of the Office of Tax Simplification is sitting on the technical group that is looking at all the issues that arise out of this Bill, so there is a connection through the person of Mr John Whiting to the group that thinks about tax simplification measures. Having said that I will write to noble Lords, I do not want to duck a number of the very important points that have been made. Even though my noble friend Lord Forsyth of Drumlean came in at the end, he asked one of the questions that go to the heart of this clause, as opposed to others which were technical, detailed and of a slightly different order. My noble friend asked simply what was wrong with the definition used for the Scottish variable rate in the 1998 Act. Under the 1998 Act, an individual had to consider a number of tests to determine whether they were a Scottish taxpayer. This could have led to people with otherwise straightforward affairs having to count the days that they spent in Scotland, which comes back to the issue at the heart of the concerns of my noble friends the Duke of Montrose and Lord Lyell. We are trying to help very large numbers of people avoid having to count on a daily basis as they drive their lorries, or whatever else they may do, by keeping to a much simpler definition than was in the 1998 Act centred on the question of close connection and main residence. That is why we thought that the 1998 Act definition needed to be changed. I understand from a number of questions that the position of oil-rig workers and others who work on the seas is of particular concern. For those who work offshore, whether on an oil rig or any other offshore base, it is very unlikely that that base will constitute their main place of residence, even though they stay there for long periods. That being the case, any day spent offshore will be disregarded when applying the definition of a Scottish taxpayer. Instead, whether they meet the definition will be determined by the location of their sole or main place of residence within the UK. Similarly, with mobile workers within the UK, the critical factor will be the location of their main place of residence. I of course appreciate that there will be difficult individual cases, but I submit that the vast majority of them already arise under existing UK rules. The noble Lord, Lord Maxton, asked whether the PAYE system would be based on where you work. The PAYE system is based on the tax code, so those identified as Scottish taxpayers will receive a tax code with an ““S”” prefix which employers will operate. Again, it will all go back to whether you are defined as being a Scottish taxpayer rather than other questions of where the income is coming from. The noble Lord, Lord Foulkes of Cumnock, raised questions about civil servants, judges and others—we may come to some of these categories in other amendments. Again, movement across the border is not the key issue; it all comes back again to where your main place of residence is, as it does in answer to so many of the other questions. The noble Lord, Lord Maxton, asked about living in Scotland and getting income from elsewhere. Again, the main place of residence will be the driver. Residence overseas is a slightly different question, because the overriding test is whether an individual is resident in the UK for tax purposes—that was another point raised by the noble Lord, Lord Foulkes of Cumnock. Unless you are a UK resident for tax purposes, the simple overlay of whether you are defined as being a Scottish taxpayer does not arise; you have first to be resident in the UK.