Preventing abuse of the R&D tax relief

The government has consulted and proposed that, to help prevent abuse of the R&D tax relief by artificial corporate structures, the amount that a loss-making company can receive in R&D tax credits will be capped at £20,000 or three times its total PAYE and NICs liability, if approved by parliament this measure will apply from April 2021.

Research and Development Expenditure Credit scheme (RDEC)

The SME scheme is not available if the R&D project has had the benefit of a grant or subsidy or if the company (or group) does not meet the SME criteria above. There may, however, be an alternative claim available to the company. This is known as the Research and Development Expenditure Credit scheme (RDEC). RDEC allows the company to claim a taxable credit of 13% (12% prior to 1 April 2020) of eligible expenditure. As this amount is taxable it is known as an ‘above the line’ credit. The credit received may be used to settle corporation tax liabilities of the current, future or prior periods subject to certain limitations and calculations. Where there is no corporation tax due the amount can be used to settle other tax debts or can be repaid net of tax.

The RDEC relief is also available to an SME for expenditure incurred on R&D that is contracted to it by a large company.

Qualifying projects

R&D relief can only be claimed by companies that have incurred expenditure on qualifying R&D projects that are relevant to the company’s trade. A project should address an area of scientific or technological uncertainty and be innovative. The innovation needs to be an improvement in the overall knowledge in the relevant field of research, not just an advancement for the company. Qualifying projects could include those which:

• increase the life of a battery
• create a new type of material in an item of clothing
• develop new spark plugs for use in an existing engine.

An important point to appreciate is that the activity does not have to create something completely new from scratch. It could include:

• developing a product that exists but where there is some technological uncertainty which can be improved
• making an appreciable improvement to a product or process eg exploring new cost effective materials which will allow a product to perform better.

Companies should document the uncertainties and planned innovation at the start of a project to provide evidence to support an R&D claim.

Relevant activities on R&D

Once the company is comfortable that R&D is taking place, then the next step is to identify the activities of the business that relate to the R&D activity.
There are essentially two types of activities:

• those that contribute directly to achieving the advancement
• certain activities that indirectly contribute to achieving the advancement.

Examples of direct activities are:

• scientific or technological planning
• scientific or technological design, testing, and analysis
• activities which design or adapt software, materials or equipment.

Examples of indirect activities are:

• information services eg preparation of R&D reports
• indirect supporting services to the R&D project eg maintenance, security, clerical
• ancillary services eg leasing laboratories and equipment.

Indirect activities all have to be undertaken for the R&D project.

The R&D project begins when the work to resolve the scientific or technological uncertainty starts and ends when that uncertainty is resolved. It is therefore beneficial for companies to keep a timeline of activities and their purposes to detail when the business starts to move into the production phase to optimise their claims.

Types of expenditure

Qualifying expenditure which is incurred on activities which are either directly or indirectly related to the R&D project fall into different categories. These are as follows:

• staffing costs
• software
• expenditure on consumable or transformable materials
• costs of work done by subcontractors and externally provided workers
• costs of clinical trial volunteers.

To be eligible, expenditure must be revenue in nature and paid by the time that the R&D claim is accepted. This means any accruals for expenditure have to be monitored carefully after the year end to make sure that they are paid and not written back to profit.

Further detail on some of these categories is provided below.

Staffing costs

The staff costs include employees and director staff costs ie salaries, employer pension contributions, employers’ NIC but not non-cash benefits-in-kind or dividends. Where an employee or director only spends part of their time on an R&D project then the costs are apportioned. The relevant staff are those involved in the directly and indirectly related activities highlighted above.

The indirect activity list included categories for ‘supporting’ and ‘ancillary’ services. The staff who perform these services should be providing supporting or ancillary services for the R&D project and not for the other people who are directly involved in the R&D project.

Examples

• The salary costs of a maintenance worker working full time on maintaining laboratory equipment used for R&D can be claimed.
• The salary costs of an accountant keeping a record of the maintenance work done including the laboratory maintenance cannot be claimed.

If directors are taking dividends from the company rather than salaries it may be more beneficial to consider reviewing this for any directors substantially involved in R&D projects.

Consumable transformable materials

Materials that are consumed or transformed in the R&D activity are eligible expenditure. Items included would have to be items which were consumed or transformed so that they were no longer usable in their original form. This would therefore include:

• water
• power
• fuel
• a chemical substance which is transformed
• an electrical component.

Any consumables or transformable materials that are included in a product that is sold, transferred or hired out will not be qualifying expenditure for R&D relief.

Costs of work subcontracted out and externally provided workers

Where the SME subcontracts qualifying R&D work to a subcontractor, the SME can claim a deduction for the cost of the subcontractor work. The amount that can be claimed depends on whether the SME is connected to the subcontractor but generally it is 65% of qualifying costs. Similar rules apply to externally provided workers.

Methods of claiming tax relief

Companies can claim R&D tax relief in the Corporation Tax (CT) return for the period when the expenditure is charged in the accounts of the company with a deadline of 2 years following the end of the accounting period in which the expenditure was incurred, to make any amendments to that CT return. This means for expenditure on a qualifying project identified after the CT return has been filed with HMRC there remains a window to make this claim.