Freelance eNewsletter - January 2006
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Freelance eNewsletter January 2006
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In this issue
-- ARCTIC SAGA ENDS WITH A WARM GLOW, OR DOES IT?
-- ENDORSEMENTS
-- THE BLUE SCREEN OF DEATH

Welcome to the January 2006 edition of the PMMC Freelance eNewsletter.

Two years after it first hit the headlines, the Arctic Systems case has reached a dramatic climax in the Court of Appeal with a stunning win for the taxpayer. However, as Johan Steyn explains below, this might still not be the end...

We conclude with a fascinating essay by Paul Tustain in which he takes us on a journey of discovery through economics (and thermodynamics!). It all starts with an unpredictable and defective computer and ends up with some gold bullion, locked away in a vault in Zurich. The moral of the story? You can't trust a banker with your gold!

If you find the newsletter informative and useful, please feel free to forward it to friends or colleagues by using the link at the bottom of this message. You are also invited to contribute to future editions: if you would like to air your opinion, pass on pertinent information for freelancers or contractors, place an 'advertorial' or simply comment on the newsletter in general, please contact us.


ARCTIC SAGA ENDS WITH A WARM GLOW, OR DOES IT?
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The new year brought news of a long-awaited outcome to the ongoing Arctic System legal battle which ensued when Geoff Jones and his wife (supported and funded by the Professional Contractors Group) challenged an attempt by HM Revenue & Customs to extract more than their fair 'pound of flesh'.

The Revenue objected in 2004 to the way in which the couple structured their salaries and dividend payments to reduce their tax bill, calling upon a fresh interpretation of so-called Settlements Legislation (Section 660A) to rule that income from dividends, received by a non-earning or low-earning spouse who is co-owner of a business, should be taxed at the same (higher) rate as the main earner's income.

The case was first heard by a tribunal of Special Commissioners and after a controversial defeat, the Joneses took their case to the High Court. Undaunted by another loss, they went on to the Court of Appeal where their appeal was heard on 29 and 30 November 2005.

In what can be seen as a victory for small business and indeed for common sense, all three presiding judges, in a unanimous verdict delivered on 15 December 2005, found no merit whatsoever in the Revenue's application of the Settlements Legislation to Mr. and Mrs. Jones's case. The verdict hinged on two major principles:

Settlement
The Court of Appeal decided that the arrangement whereby Mrs. Jones owned a share in the Company and received dividends, irrespective of her contribution to the trading activities of the Company, was not in itself a "settlement" within the meaning of the legislation.

Sir Andrew Morritt pointed out that although Mr. Jones controlled the Company, which gave him an ability to confer benefit upon his wife (the other shareholder), this arrangement did not in itself confer any benefit. Mr. Jones's decisions about the levels of salary and dividends to be paid to himself and to his wife were therefore not part of a settlement. Sir Morritt: "They did not form any part of a structure of things ... their uncertainty and fluidity is the converse of an arrangement ... No doubt Mr. and Mrs. Jones hoped for the best but it cannot be said that they had arranged it ... Similarly the declaration of the dividends was not arranged in advance; it was dependent upon the trading fortunes of the Company".

Bounty
The Court of Appeal also disagreed with the Revenue's contention that the payment of dividends to a spouse who was not the main fee earner was "bounteous". Sir Andrew Morritt said: "Though one spouse may generate the income of the firm or company, the services of the other may be just as commercially important in providing the essential administrative, accounting, support and backup services". Hence Mr. Jones's ability to control the Company was deemed not to be bounteous. The fact that at some stage some mitigation of tax liability might arise was irrelevant to the existence of any element of bounty.

Lord Justice Keane agreed that the element of bounty was "too speculative when viewed as at the date of the alleged settlement". For his part, Lord Justice Carnwath was concerned about the lack of clarity in the statute and the Revenue's interpretation of it. He underlined the "need for caution in extending the concept of settlement beyond the scope of existing jurisprudence", stressing that "if the legislature wished such an arrangement to be brought within a special regime for tax purposes, clearer language is necessary to achieve it".

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The outcome - a landmark victory for small businesses - could amount to lost tax revenue (i.e. tax savings for Mr. and Mrs. Taxpayer) of as much as £1bn. The Revenue has stated that it was "considering the details of the decision alongside options for the next steps". One possible next step would be for the Revenue to apply for leave to appeal to the House of Lords, which means that the dust has yet to finally settle on what has become the most talked-about issue of recent years for small businesses and entrepreneurs.

Johan Steyn

Editor's note: Johan Steyn has been working as a freelance Enterprise Resource Planning (ERP) & Management Consultant for 10 years and he is the Managing Director of PMMC (UK) Limited.


ENDORSEMENTS
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THE BLUE SCREEN OF DEATH
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When my last laptop stopped behaving itself the experts couldn't fix it. After a week of increasing desperation in the end there was only one way I could get it back to predictable behaviour... I threw it out of a second floor window.

I knew my PC would follow the parabola of any object falling freely under the influence of gravity, which was exactly what happened. Natural laws prevailed, and they continued prevailing as the machine redistributed its carefully organised components into disorganised chaos shortly afterwards - as predicted by science's second law of thermodynamics.

This simple law of nature also predicts that when a system of any kind gets too complicated you have to pour in energy to maintain that complexity. Under its watchful eye all organised systems eventually break down, and become disorganised again.

Everything from a house to a human body...from a bag of sugar to a spaceship...obeys this law. Time always makes organised things turn back into formless mush. The best we can do is pump in increasing amounts of energy to hold off the inevitable decay for a while.

Which brings us - sadly - to economics.

The 21st century economy is a technical device. It is a designed system too, although it used not to be. Before WWI, nobody seriously tried to organise the forces of economics. Then Western economists realised capital flows could be organised and harnessed. They discovered that under the right circumstances, they could engineer an economic system to benefit most people.

This has had an amazing result. Those of us living in the West today have become the wealthiest people ever.

Nevertheless, the natural laws of science and economics will win out. There is absolutely no doubt this cleverly organised and beneficial economic system will fail; no doubt whatsoever.

The only question is, when?

My old computer, stuffed full of files and data, reacted to its increasing complexity by giving me a series of error messages. It started with "Disk read checksum error". Then it went through "Please consult your system administrator" - by which I think it was optimistically referring to me. And finally it offered what computer people call the "Blue screen of death", just before its short and violent final journey.

In much the same way there are ominous error messages coming out of the western economies today. In the US alone, every one of 100 million families annually spends $5,000 too much on imported goods. In Britain, household debt now totals 150% of post-tax income. Australia's trade deficit has reached 7% of GDP.

Our central bankers call these numbers "imbalances". But they are the error messages - like my computer's checksum - which nobody knows how to fix. So everyone continues to look the other way, while government spending and household debt explode, especially in the Anglo-Saxon economies of the world.

But the second law of thermodynamics is patient. It tolerates disequilibrium while you pump in energy - knowing that the energy is finite, and that it will win out. I was reminded by my failing computer how important it is to have a backup strategy - and not only for laptops.

Should the global economy break down, the most reliable backup strategy is gold. The trouble is, a highly complex system has developed in the gold market too. And it is not a system which serves your purpose.

When I first decided, several years ago, to back up my finances with gold, I wanted to buy a long-term secure bullion reserve. I wasn't interested in short-term speculation or relying on the complex clearing systems which underpin the options and futures markets. They aren't sufficiently reliable over a decade or two.

No, I wanted to own gold outright and not worry about it. Yet on top of a potentially nasty storage problem, the retail gold market demanded 4-6% dealing spreads - much too high.

This is a consequence of the delivery problem. Professional dealers will only buy bullion from you on narrow spreads if the bars are of standard size - fully 400 troy ounces and worth $188,000 at today's prices. [Editor's note: The price of gold has been steadily going up since the time of writing.] The bars must also have been stored and shipped exclusively by recognised professional bullion market participants, ever since their manufacture.

But how many private buyers will be dealing in $188,000? And how many private individuals can deal with a professional vault where vaulting agreements cost a minimum of $1,000 a month?

Because of this I had to deal with the banks. It took ten weeks to complete the set-up of an account in Switzerland - and even then it cost me a 2% spread to buy 'unallocated' gold. And I still had to pay 0.5% in annual management!

Now, I want to rely absolutely on this gold reserve - my back up. So I decided to find out what this 'unallocated' gold is all about. Get ready to be surprised.

When a bank sells you unallocated gold, you become the bank's creditor. It owes you the gold in other words, and you do not own the asset you've bought. The gold is only available to you if the bank remains solvent.

What if your bank doesn't remain solvent? The regulators require the banks to hold a percentage of their liabilities in highly marketable and liquid assets, things that can be turned into cash quickly during times of crisis. This is called the "liquidity reserve", and it's there to protect the bank from a cash shortage - caused, for instance, by a breakdown in global finances that gold buyers might hope to survive.

Physical gold bars are good assets for a bank to hold as liquidity reserves - especially as they tend to rise in value when there are crises. They turn easily into cash. And while gold is held, unallocated to customers, the regulators allow it to be considered a part of a bank's reserve. This makes unallocated gold an attractive way for the bank to maintain its regulated liquidity reserve. In short, you have paid for your gold, and the bank can use your money all the while. Yet it must sell its gold - your gold, in fact - in the event of a crisis, to keep the bank liquid!

So your unallocated gold would be ditched if the bank were badly in need of cash. It has no choice in the matter; liquid reserves and other near-cash assets are there to protect the bank's general creditors - all of whom, including you, would receive a proportionate share of whatever money is raised from the sale of these and other bank assets if the bank were to go under.

If that did happen, unallocated gold owners would be in a bad position. The bank's usually small gold reserve would be diluted by its non- performing bond portfolios and other assets. Moreover, the last line of defence - deposit protection, which is a mainstay of banking confidence in the West - does not generally apply on bullion debts. Deposit protection is there to raise confidence in the national currency.

So unallocated gold actually offers LESS protection from bank failure than a cash deposit!

Allocated gold is different, of course. You become the outright owner of gold and you are no longer a creditor. Your allocated gold is your property and it cannot be used as the bank's reserve. But this explains why banks usually charge nothing for 'unallocated' storage against a chunky 1.5% per annum for 'allocated' storage. And as a result, professionals in the bullion market reckon that less than 1% of gold traded within financial markets is ever allocated as customer property.

Yes, the huge majority of today's gold buyers are - probably unwittingly - acquiring a personal financial backup in a way which protects everyone else in front of them.

Paul Tustain

Editor's Note: Paul Tustain is the founder and director of BullionVault, a company which buys guaranteed, market deliverable gold bars and stores them at Brinks - the world's biggest and strongest professionally recognised bullion transporter and vault operator.

Brinks is not a bank. For 143 years, it has stored valuable goods without getting involved in unallocated arrangements and other financial wizardry. This is why no customer has suffered a loss in the period. In fact, the actuarial risk of loss is so small that the gold is stored with insurance costs included - at rates so low, it embarrasses those few banks which still operate recognised bullion vaults.

Paul Tustain also edits Galmarley, the popular gold research site. In June 2005 he sold SAM - a specialist banking and risk management systems provider which he founded in 1990. Today Paul consults on risk management within the financial sector and is well known as a writer, publisher and TV panellist both on gold and the workings of the financial system.

This essay first appeared in The Daily Reckoning.


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    Published: 31/01/2006 (NL00009) ©2004 - 2006