What are golden hellos?

Having talked about golden handshakes I ought to mention the “golden hello”, which is a payment made to a future director or employee. It is just possible (only just!)that a payment received from someone other than the new employer – a third party - could be construed as non-taxable.

Where a lump sum payment is made to a prospective new employee, it will be taxed as advance pay for future services unless it represents compensation for some right or asset given up on taking up the employment. An example going back to the 1950s was where an amateur rugby player gave up that status upon turning professional. In those days there was no turning back to amateur status and therefore to return to Rugby Union from the professional Rugby League. His payment was held not to be taxable. In modern times the case for a payment escaping tax would be hard to sustain given the general attitude of HMRC where even a perfectly arguable situation would fall in the face of the expense of defending it.

Usually a payment to a prospective employee about to join will be an emolument of his or her employment and therefore subject to tax and NIC. Effectively it is a signing-on fee similar to that offered to former England goalkeeper Peter Shilton upon his transfer from Nottingham Forest to Southampton (Shilton v Wilmshurst (64TC78) 1991). Lord Templeman explained “An emolument 'from employment' means an emolument 'from being or becoming an employee.' The authorities are consistent with this analysis and are concerned to distinguish in each case between an emolument which is derived 'from being or becoming an employee' on the one hand, and an emolument which is attributable to something else on the other hand.'”

Peter Shilton's payment was found to be taxable in full and almost always this will be the rule for payments made to employees prior to or upon their starting a new job.

© Jon Stow 2010

What are golden handshakes?

Golden handshakes are payments to an individual upon termination of employment and may also be known as lump sum payments.

There are cases where such payments are not taxed at all, which are those post-death when an employee has died in service, and in some cases payments due to disability may qualify for exemption. Those are outside the norm.

For the most part termination payments are taxable under special rules. The first £30,000 of a leaving payment will be exempt from tax if it is an ex-gratia payment and therefore non-contractual. One may have to make the case to HMRC that the payment is not for services rendered and that there was no obligation on behalf of the employer.

Otherwise, payments in lieu of notice (PILONs- how we love these acronyms) are taxable if contractual in the sense that the employee's contract specifies that the employer will make a PILON if the employee is asked not to work notice.

If the contract does not specify this, being silent on the position where the employee is asked to leave without working notice, then the first £30,000 may qualify for the tax exemption because it then represents “damages” for breach of contract. However, if the employer habitually follows the practice of paying terminated employees in lieu of notice even though the contract does not specify this then HMRC may take the view that the first £30,000 is taxable because an employee would have the expectation and the employer probably the intention from the outset.

A true redundancy payment should qualify for the £30,000 exemption, but must be supportable as genuine on the evidence available.

If you are starting to think this whole area of leaving payments is a minefield, you would be right. If you are an employer planning on letting some of your workers go, you should get professional advice.

If you are an employee on the receiving end of both your notice and a proposed payment, you would also be wise to get professional advice before the agreement, and also in completing your Self Assessment Tax Return later. The level of taxation on any non-exempt amount might also depend on what level of income you have in the year you receive your payment, and often if you are not seeking further work you will benefit by having your termination payment at the beginning of a tax year in April or May so that it will not be aggregated with a whole year's pay.

The golden rule for golden handshakes is to seek professional advice.

© Jon Stow 2010

A tax practitioner's view of the economy - why we have reason to be worried

Dealing as I do with the nitty-gritty results of small business owners' efforts, I am puzzled by some of the predictions for the economic recovery and in relation to the recent short term sales figures of certain more successful stores, notably John Lewis, Marks and Spencer, and House of Fraser.
 
My perception is that service businesses have had a very poor year, and it is perhaps poorer in 2009-10 than for the 2008-09 period to March last year.
 
I believe there is a huge gap between the self-employed (and I include micro businesses operating through companies) and those still in employment, living on at least the same salary or wage that they have had previously. The latter group has benefited from slight deflation and the desperation of the stores to shift goods at smaller margins, but I believe principally because the crash in interest rates has given employees with mortgages extra cash to spend. I remember from childhood the game we used to play, calling out "I am on Tom Tiddler's ground". Those still waged or salaried with lower household costs are spending what used to be the mortgage money at the sales, rather than saving it for a rainy day as many of us might think they should. They are in the privileged if uncertain position of Tom Tiddler's ground. Saving is bound to be rather discouraged also because of the lower interest rates, but people have forgotten how to be prudent and save.
 
I worry that the whole effect of a 0.5% bank rate is to distort the true economy (understandably in many ways) but means that many more chickens are likely to come home to roost as small business struggles along, the jobs market contracts on some of the current big spenders, and the tax hikes bite after the election. The latter will come, no matter who is in Government. Thus the double-dip graph of the nation's economic forecast - a "W" - seems the most likely scenario with little sustained improvement for two or three years.
 
That is how it seems on the ground as a small business owner looking after other small business owners, and I wish it were different.
 
© Jon Stow 2010
 

Business, Small business, House of Fraser, Employment, John Lewis, Money, Economy, Marks & Spencer, interest rates, double-dip, taxation, hike, tax increase