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Patent Box? Just call nein nein nein


13th Nov 2014

It couldn’t last. As we reported in December 2013 and June 2014, the patentee-friendly UK Patent Box tax regime had attracted some criticism from our European neighbours. The UK government had insisted that the scheme was legal and was here-to-stay, but now it appears that it will only stay in a modified form.

Despite the existence of similar tax regimes in other European countries, the UK’s Patent Box scheme was referred to the European Commission in relation to the “EU Code of Conduct on Business Taxation”. While it may have been anticipated that the current European Commission President Jean Claude Juncker (former Prime Minister of “tax-haven” Luxembourg) would have taken a lenient view of preferential tax regimes, the UK government has been engaged in bilateral discussions with one of the scheme’s primary opponents, Germany. The result is a joint statement (here) which says “goodbye” to the Patent Box as a scheme based on ownership of IP, and “hello” to a modified scheme in which qualification for the tax benefits will be linked to R&D expenditure in the UK.

The joint UK-German statement sets out a proposal for consideration by all G20 and OECD countries aimed at harmonising IP-based tax regimes. The proposal seeks to ensure that “preferential regimes for intellectual property require substantial economic activities to be undertaken in the jurisdiction in which a preferential regime exists, by requiring tax benefits to be connected directly to R&D expenditures.” The concern seems to be that some companies would seek to pay their main tax bill in one country (the UK) while conducting their main R&D activity in another country.

The proposal is that existing IP regimes (so not just the UK Patent Box) are closed to new entrants in June 2016. As part of a “grandfathering” clause, IP within existing regimes will be able to retain the benefit of those regimes until June 2021, at which point all existing regimes will be abolished.

It is difficult to say what this means for UK companies at present; no doubt there will be much analysis in the coming days and weeks. It does appear that there may be an advantage in obtaining granted qualifying IP rights before June 2016 so that at least some benefit can be obtained from the present Patent Box regime without the need to prove qualification by R&D activity. No doubt further legislation will be required to set out the qualification criteria for the modified Patent Box, hopefully including guidance as to what is meant by “substantial economic activities to be undertaken in the jurisdiction”.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.

Author
Alan Bates
Partner
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