TaxSource Total

Here you can access relevant source documents which support the summaries of key tax developments in Ireland, the UK and internationally

Source documents include:

  • Chartered Accountants Ireland’s representations and submissions
  • published documents by the Irish Revenue, UK HMRC, EU Commission and OECD
  • other government documents

The source documents are displayed per year, per month, by jurisdiction and by title

Decision by First Tier Tribunal – Swift v HMRC TC 00399 [2010] UKFTT 88: UK tax treatment of a US Limited Liability Company (LLC)

Background

On the basis of the principles set out in Memec plc v CIR (71 TC 77), it has been HM Revenue & Customs (HMRC) general practice to tax a UK resident member of an LLC on the profits of the LLC only if and when those profits are distributed by the LLC to its members.

A consequence of this treatment is that any tax paid in the US on the profits of the LLC is available for relief against UK tax only as underlying tax-and, as such, only to a UK company which controls, directly or indirectly, at least 10 per cent of the voting power in the LLC.

HMRC has not yet seen any examples of US LLCs for which it has considered this general practice to be inappropriate. But UK resident members have always been free to ask HMRC to review their particular circumstances if they believe that HMRC's general practice is inappropriate to them.

Decision by First Tier Tribunal (Tribunal) in Swift v HMRC

The Tribunal decided that the profits of a particular US LLC belonged to the individual members as they arose and that the UK member should be taxed accordingly. Since he was thereby taxed on the same income in both countries, he was entitled to double taxation relief for US tax paid on his share of the LLC's profits.

Implications for Similar Cases

HMRC has appealed the decision and intends, for the time being, to continue with its current general practices in relation to US LLCs. If, however, any member of a US LLC feels that the UK treatment of a particular LLC should be reviewed in the light of the decision of the Tribunal, they should write to Stan Surgin, Business International, Yorke House, Castle Meadow Road, Nottingham, NG2 1BG setting out fully why they believe that to be the case.

Ordinary Share Capital

It has been HMRC's practice to accept that a Delaware LLC can in certain circumstances be regarded as having ‘ordinary share capital’ for the purposes of Section 832 ICTA 1988. See HMRC Business Brief 87/09.

The Tribunal found as fact that the members’ interests in the particular US LLC under consideration were ‘not similar to share capital but something more similar to partnership capital of an English partnership’.

HMRC similarly intends to continue its general practice in this respect in relation to US LLC's.

Source: HMRC. www.hmrc.gov.uk. Copyright Acknowledged.