Will this change impact your claim?
- If your business has a significant number of UK employees then this cap may not apply. But it’s worth reading on to see how this change may impact any of your future expansion plans.
- If your business’ staff costs element of your R&D claim is relatively small, this cap may limit your cash back benefit going forward. Therefore if your company is claiming R&D tax credits but has minimal PAYE and NIC payments, this draft legislation is important.
Because the way the cap works is specific to each company, it isn’t possible to provide thresholds, and this is why it’s important you discuss the cap with an advisor.
The proposed cap comes with caveats to seek to reduce the impact on legitimate companies.
HMRC’s proposed changes to the legislation includes the following provisions:
i. If the claimant company has subcontracted R&D, or is using staff from a connected company, then the relevant proportion of their PAYE and NIC may be included in the cap calculation. A ‘connected company’ is either another business within a group, or one with a substantially similar shareholding. The ‘relevant proportion’ will be the eligibility for the individual being claimed for.
Our thoughts: We were hoping that for UK groups, HMRC may allow the total PAYE and NIC payments, but the current draft legislation is more restrictive. But it’s likely that hiring staff from UK connected party companies to undertake eligible R&D won’t cause this cap to be triggered. This isn’t the case for non-employee costs being claimed via a UK connected party, or work undertaken by an overseas connected party. In these cases the cap is likely to be triggered.
ii. There is an exemption if the creation of the intellectual property (IP) related to the R&D project is managed by employees of the claimant company. Note this is the claimant company, not the group. The definition of IP is quite tightly defined and seems to be limited to either granted rights or live applications for patents, design rights or copyrights. Knowhow isn’t listed, so we don’t believe this would be sufficient unless the wording is changed from the current draft.
Our thoughts: This part of the legislation is open to interpretation. But we suspect if you can show that the management team in the claimant company are closely involved in the day to day management of the R&D, and the IP created by the business flows through the claimant company, then your business may not have to worry about the new rules.
iii. But there’s one big caveat to applying this exclusion. If the R&D claim within the claimant company is made up of more than 15% of connected party qualifying expenditure (subcontracted R&D or externally provided workers), then this exemption around IP management doesn’t apply. This is a fairly low bar for many groups of companies, and could mean that many fall outside of the exclusion. We have a few clients where this cap is likely to impact claims going forward, so it’s critical you review this exclusion carefully.