From 1 April 2021, Small and Medium sized Enterprises (SMEs) seeking to make an R&D claim will need to be mindful of the new cap for refundable credits. The draft legislation proposing a limit on R&D tax credits is explained in full in this article.
The amount of payable R&D tax credit that an SME can receive is capped at £20,000 plus 300% of its total Pay as you Earn (PAYE) and National Insurance Contributions (NIC) liability for the period.
A company is exempt from the cap if:
- Its employees are creating, preparing to create, or managing Intellectual Property (IP) and
- It does not spend more than 15% of its qualifying R&D expenditure on subcontracting R&D to connected parties; or on the provision of externally provided workers (EPWs) by connected parties.
It is worth noting that the above is apportioned where relevant for periods more or less than 12 months.
Why has the cap on SME R&D tax credits been introduced and why does it feel familiar?
To understand the proposed cap, we need to look back to the start of the millennium, when the first R&D incentive was introduced. That initial scheme, while still highly beneficial, came with a restriction – any payable tax credit was capped at the total of a company’s joint PAYE and NIC liability for the period. This mainly affected loss-making and low-profit companies seeking to make use of the new scheme.
It wasn’t until over a decade later in 2012 that this cap was removed. At the same time, the minimum spend threshold of £10,000 was also abolished, meaning a huge boost in the number of innovative companies that could begin to claim under the scheme.
HMRC saw a boom in the number of SMEs claiming and the number of to the amount of payable R&D credits increased by 22% between 2016 and 2018 to reach £2.2 billion. R&D tax reliefs were proving to be effective and the government remained committed to its target of R&D investment reaching 2.4% of GDP by 2027.
Notwithstanding the evident effectiveness of the scheme, HMRC began to identify, and tackle, a growing number of fraudulent claims for payable tax credits on R&D work carried out overseas. This fraud totalled in excess of £300 million and, as a result, a reintroduction of the cap was proposed in the 2018 budget.
Consultation on the new cap on R&D payable credits
The Government consulted on reintroducing the cap in 2019 and again in 2020. During discussions between HMRC, R&D expert advisors and claimant companies, the benefits of a cap were weighed against the impact on loss-making or low profit-making SMEs making genuine R&D claims. While it was important to prevent fraud, it was equally important that truly innovative companies were not unfairly penalised or prevented from claiming.
HMRC received around 40 responses to the 2020 consultation and took into consideration many of the concerns raised. HMRC have released draft legislation for the new restriction which is essentially a reintroduction of the old, pre-2012 PAYE and NIC cap but with three key differences designed to minimise impact on genuine R&D claimants.
Initially, the first exemption test currently was restrictive on the definition of IP – i.e. excluding R&D on the type of commercial ‘knowhow’ that would normally qualify for R&D relief. However, we are pleased to say that following direct discussions with BDO on this point, HMRC’s policy team has amended the definition so that it now mirrors IP definition in the main R&D relief legislation.
Key protections for genuine SME R&D claims
Firstly, the Exemption Tests - a claim of any size will be uncapped if it meets both of the following criteria:
- The claimant company can provide proof that it is actively managing the IP arising from, or expected to arise from, the R&D project.
- The proportion of R&D expenditure on connected parties through subcontracted R&D and through the provision of EPWs, must be less than 15% of the company’s total R&D expenditure for the period.
Secondly, the introduction of a £20,000 de minimis. By adding £20,000 to the total PAYE and class 1 NIC liability of claimants within the rules, the legislation ensures that SMEs making a claim for a payable credit of £20,000 or less will not lose out because of the cap.
And finally, with the inclusion of Connected Parties - companies will be allowed to include the PAYE and NIC liabilities for UK employees of connected parties that participate in the company’s R&D activities through either subcontracted R&D arrangements or through the provision of connected Externally Provided Workers (EPWs), when calculating the cap.
If you would like help with a payable credit claim please get in touch with Cathy Kelly.