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Overseas to UK

Why Britain leads the investment table for overseas companies

Registering is fast, easy and inexpensive

Like every industrial country, the UK has formal rules of procedure and a long established body of corporate law established over centuries. Unlike many countries, however, the UK is mercifully free of red tape and bureaucracy.

The timescale required to register a new business and begin trading is shorter than anywhere else in Europe. This is perhaps one of the reasons why overseas corporations find the UK so attractive. Foreign investment in Britain is easily the greatest in the European Union and, if anything, the lead is growing.

With many overseas companies setting up businesses here, it is hardly surprising that a large and constantly growing number of foreign citizens are coming to Britain to work.

On this and the following pages we summarise the requirements for non-UK companies trading here, and also review the personal tax rules affecting overseas citizens.

If a company intends to operate from a fixed base in the UK, employing people here and entering into contracts in Britain, it will have a ‘permanent establishment’ in this country and therefore will be liable to UK tax. However, as we explain on page 4 its tax circumstances will depend upon the way the business is constituted.

The company can either establish a branch operation in the UK, a subsidiary company, or a Limited Liability Partnership (LLP). From a UK tax perspective, the main differences between these would be taxation, the way that the repatriation of profits would be treated, and the treatment of any losses for tax purposes in its home country.

If operating by way of a UK subsidiary, or LLP, the parent company will need to review, with its local advisers, whether or not there are tax implications in their country of origin that must also be considered.

However, a business that decides to trade this way will not have to supply overseas accounts to the UK authorities.

Businesses that do not have a permanent establishment in Britain but instead have a representative office may still be liable for tax. If they incur costs in the UK these could be uplifted under the ‘mark up’ rules and tax assessed accordingly.

The rules affecting individuals can be rather complex. However, there are a number of valuable concessions for foreign nationals and it is very important to take professional advice – ideally before arriving in the UK.

HW Fisher & Company advises many overseas companies and foreign citizens who have taken up employment here. We would be very glad to hear from anyone who would like to learn more.

The basic ways of trading in the UK

An overseas business can operate either directly (as a branch, in other words), by setting up a British subsidiary, or Limited Liability Partnership (LLP). The difference may seem technical but it can have a number of important consequences.

Operating directly

If a company decides to trade here as a branch of its domestic operation, it will still have a set place of business in the UK. This means that it will normally be required to register under the Companies Act 2006 – the major piece of UK legislation governing the operation of companies. The registration must take place within 30 days of establishing the operation.

Certain basic documentation will have to be produced at this point – principally the Byelaws of the corporation concerned, duly notarised within the jurisdiction of incorporation.

In addition, the business will have to report changes in its constitution, officers and accounts.

The timing for the filing of accounts in the UK will depend upon the requirements of the law relating to the auditing and publication of accounts in the overseas territory.

Creating a subsidiary/LLP

If a decision is taken to set up a UK subsidiary, or LLP, the process, as noted earlier, is simple and cheap compared to other countries within the European Union. The UK Government has repeatedly declared its intention to make this country entrepreneur-friendly, and recent changes to corporate law are notable steps in that direction.

The most simple (and most popular) entity for business is the private company. It can be set up with a minimum share capital of £1 and offers the investor limited liability. There is a current requirement for a minimum of one director. There are no shareholding, residential or nationality restrictions.

In recent years overseas concerns have also operated through LLPs and advice on such structures can be given.

The incorporation of a company or LLP is also simple. Our company secretarial department can deal with all the formalities quickly and at modest cost.

The requirements

The annual obligations following incorporation are relatively straightforward. Companies and LLPs must file an annual return and produce annual accounts, which must normally be audited (if certain thresholds are exceeded).

As well as these basic requirements, certain changes will have to be reported. These include, for example, changes to the capital structure as well as any charges on the company.

In addition to the private company, there are other vehicles (such as LLPs, previously referred to) through which businesses can be operated. Each has its pros and cons, and it will be necessary to take expert advice before making a decision.

Of course, UK company law, like the law of most countries, is not static but continually evolves in the light of changing circumstances. It is therefore very important to take nothing for granted, but to seek professional advice.

Tax and the decision to set up a branch, subsidiary or LLP

As we note on the preceding page, the branch, subsidiary or LLP question will be the first, and probably most important, matter for companies to consider.

The decision is fundamental not only because it will define the structure of the concern and have an impact upon its operating methods, but because there are significant tax implications.

The Branch*

Any branch of an overseas company operating in the UK will be liable to tax on both income and capital profits at the corporation tax rate calculated on an ‘arm’s length basis’ – in other words, assessed in a manner that prevents companies operating internationally from artificially manipulating inter-company transactions in order to avoid tax.

The profit levels noted in the chart are reduced where the company has associated companies, whether in the UK or elsewhere. The reason is that in this case, the profits are divided among the relevant businesses. One particularly attractive feature of UK tax law is that there will be no further withholding tax paid on repatriation of profits for a business trading as a branch.

However, it will be necessary to file the accounts of the parent organisation with the UK authority, as well as the names of its local directors and the company secretary, together with the names of the branch representative in Britain.

As part of the arm’s length treatment, interest charges would only be deductible if incurred by lending from third parties rather than from an overseas company head office and applied for branch purposes in the UK.

Losses made by the branch may be available to offset against profits in the home territory, but it is important to take advice on this issue from local professionals.

The Subsidiary

If the subsidiary is incorporated and managed in the UK, it will be UK resident for corporation tax. If it is incorporated in the overseas territory and managed in the UK, then it could be dual resident in both countries. Double Taxation Treaties could regard the company as resident in one country or another.

As in the case of a branch, a subsidiary will be liable to tax on both income and capital profits at the corporation tax rate – again, calculated on an arm’s length basis.

For companies with profits below £1.5 million, corporation tax is due nine months after the end of the tax period.

For larger companies with profits above £1.5 million, tax is payable in four equal quarterly instalments spread through the year.

As with branches, the profit levels – including those for calculating if payment of tax by instalments is due – are reduced where the company has associated companies, whether in the UK or elsewhere.

Dividends paid to the parent company would carry a tax credit of 10%. However, this is a rather academic point, as the credit cannot be reclaimed.

Losses in the UK company can be carried forward against future profits provided they are made in the same trade.

The LLP

In many ways the taxable business profits are computed in the same way. However, the profits are then directly assessable on each of the members of the LLP. And the overseas parent, who will usually be the largest member, separately has to be registered in the UK for taxation purposes, so that their tax can be collected.

* Although we use the word ‘branch’ throughout this article, the tax term for this operation is a ‘Permanent Establishment’ or PE. Specific advice on ‘Permanent Establishment’ will always be required whichever vehicle is chosen to carry on trading.

Corporation Tax Tax Rates
Profit range 01.04.14 onwards 01.04.15 onwards
£0 – £300,000 20% 20%
£300,0001 to £1,500,000 21.5% 20%
£1,500,001 and above 21% 20%

Corporation tax incentives – Further reasons to invest in the UK

Aside from the ease of establishing a business presence in the UK, there are generous tax incentives available for innovative businesses, which can reduce the already low corporation tax rates further.

Research and Development (“R&D”)

There are two regimes providing corporation tax relief for those companies that undertake qualifying R&D activities in the UK.

1. The Small and Medium-sized Enterprise (“SME”) scheme applies to companies which have less than 500 employees and either a turnover of less than €100m or a balance sheet total of less than €86m. These limits apply to the consolidated worldwide group results where the company is a member of a group.

An SME is entitled to claim an enhanced corporation tax deduction equal to 225% of its qualifying expenditure on R&D. This can substantially reduce the company’s taxable profits, making the cost of undertaking R&D work in the UK highly competitive.

Additionally, where the enhanced corporation tax deduction results in the company incurring a tax loss, the company can elect to surrender the loss in exchange for a cash payment from HMRC. The cash payment is currently equal to 24.75p for every £1 actually spent by the company. It should be noted that this is a better return than offsetting the losses against future taxable profits.

2. The Large company scheme applies to any company that does not qualify for the SME scheme.

A large company is entitled to claim an enhanced corporation tax deduction equal to 130% of its qualifying expenditure on R&D. Historically, it has not been possible to obtain a cash payment where the enhanced tax deduction has resulted in the company incurring a tax loss.

However, with effect from 1 April 2013, a large company can elect to claim an Above The Line (“ATL”) tax credit. From 1 April 2016, the ATL credit regime will become mandatory.

The ATL tax credit, which will be taxable, will be a payable cash sum equal to 10% of the company’s qualifying expenditure on R&D. This will result in a rate of post-tax relief of 7.7% initially, eventually rising to 8% from 1 April 2015. The ATL tax credit will be available in place of the enhanced tax deduction under the current scheme.

Overall, the UK R&D tax relief schemes are highly generous and increase the attractiveness of the UK for inward investors.

Patent Box

With effect from 1 April 2013, the UK is introducing a “Patent Box” tax regime. Companies can elect into the regime which will result in income directly attributable to the exploitation of patents being subject to a 10% corporation tax rate.

The relief is being phased in over a four year period and applies to income derived from patents registered in the UK or EU.

There are a number of conditions to be met such as requirements that the UK company either owns the patent or has an exclusive licence to exploit the patent, and has been actively involved in developing the patent.

Permanent Establishment (“PE”)

Overseas entities will only be taxable in the UK if they are trading in the UK rather than trading with the UK. If they have a PE in the UK they will be treated as trading in the UK and thus will be taxable on an appropriate share of profits made from such trading.

In the UK a PE is present if:

a. There is a fixed place of business here through which a business is wholly or partly carried on, or

b. an agent acting on behalf of the business has and habitually exercises, in the UK, authority to do business on behalf of the business (but see below).

Fixed place of business PE

A fixed place of business permanent establishment can include:

a. a geographic place of business, possibly premises or a site, although it can, in certain circumstances, be machinery or equipment;

b. a place of business which is fixed, that is, have a certain degree of permanence, and the business must be carried on through this fixed place of business, normally by the personnel of the enterprise.

Examples given in UK legislation include:

a. a place of management

b. a branch

c. an office

d. a factory

e. a workshop

f. an installation or structure for the exploration of natural resources

g. a mine, an oil or gas well, a quarry or any other place of extraction of natural resources

h. a building site or construction or installation project.

Agency PE

For UK tax purposes, a PE can also include:

“… an agent acting on behalf of the company where the agent has and habitually exercises here authority to do business on behalf of the company as long as that agent is not of independent status acting in the ordinary course of his business.”

The OECD Model Treaty definition is drawn more narrowly because it requires the agent to exercise authority to enter into contracts.

However, a UK agent will not establish a PE where the agent is “of independent status acting in the ordinary course of his business”.

Independent status is tested by reference to the arms length legal, financial and commercial characteristics of the particular business relationship between the non-resident and the agent. The fact that an agent is a subsidiary company does not necessarily make it a dependent agent. However, a subsidiary company will constitute a domestic law agency PE of its parent company in the same way as any other agent of the parent company if independence cannot be demonstrated.

Matters relevant would include (but not necessarily be limited to) the number of unrelated principals that the agent acted for and the extent of the business activities customarily carried out by independent agents in the specific business sector concerned.

Preparatory or auxiliary activities

There is no PE in the UK if the activities here, whether through a fixed place of business or an agent, in relation to the business as a whole, are preparatory or auxiliary in character. The UK legislation gives some examples of activities that are preparatory or auxiliary as follows:

a. The use of facilities for the purpose of storage, display or delivery of goods or merchandise belonging to the company,

b. The maintenance of a stock of goods or merchandise belonging to the company for the purpose of storage, display or delivery

c. The maintenance of a stock of goods or merchandise belonging to the company for the purpose of processing by another person

d. Purchasing goods or merchandising, or collecting information, for the company.

The benchmarks to gauge the activities against are those of the trade as a whole entity. So, if the UK activities are no different to the essence of the whole trade, e.g. the UK personnel collect market research information and the non-resident company’s main trade is also concerned with market research, then the activities in the UK would not be preparatory or auxiliary to the trade – it would be part of it and there could be a PE of the overseas parent in the UK.

One would also need to consider the terms of any relevant Treaty that may extend the activities that would be treated as preparatory or auxiliary in nature.

Value Added Tax (VAT)

Background

VAT is a tax on consumers that is levied in the UK and all other European Union (EU) countries. The current standard-rate of VAT in the UK has been 20% since 2011. VAT is chargeable on most supplies of goods and services in the UK. Although VAT is collected and paid over to the tax authorities (HM Revenue & Customs) by businesses, it should not be a cost to most businesses, although they need to be aware of how the UK VAT system should be operated.

Overseas business making supplies to the UK
a) Goods sold from overseas

If the goods are sold from overseas and the UK customer takes title on importation of the goods into the UK, the UK customer will have to pay import VAT, at 20%, and import Duty on the value of the goods. There will be no VAT obligations for overseas company as the sale is deemed to have taken place outside of the UK.

b) Goods sold in the UK

If the UK customer only takes title to the goods on their delivery to it after importation, then the overseas company is the importer of the goods and must pay import VAT and Duty on the value of the goods. The sale to the UK customer is then deemed to take place in the UK and is therefore subject to UK VAT at 20%.

Accordingly, an overseas company would be obliged to register for VAT in the UK in order to:

i. Add UK VAT to the net value of its sales invoices to UK customers (this would not normally be an issue for business customers as they will normally be able to recover the VAT on their UK VAT Returns, but would be an issue for nonbusiness customers who cannot recover VAT);

ii. Recover the import VAT paid to UK Customs (Import Duty is not recoverable). To ensure that goods were not delayed at their point of entry into the UK, a VAT and Duty Deferment account would need to be set up with UK Revenue & Customs; and

iii. Complete the UK VAT returns indicating the VAT added to UK sales and the VAT paid on UK imports, with the net difference either payable to, or receivable from, UK Revenue & Customs.

c) Services

Most business to business services are treated as supplied where they are received by the recipient. In these circumstances, overseas businesses supplying services from overseas to a UK business customer would not be obliged to register for UK VAT and the customer would account for any VAT at their end.

Other business to private customer services are treated as supplied where the supplier belongs. In either case, there is no requirement for an overseas company supplying these services to UK customers from overseas to register for VAT in the UK.

However, services relating directly to UK land or property, for example the services of architects, surveyors, engineers etc. are subject to UK VAT regardless of where the supplier or his customer are established. Under the same rules, if an overseas business hires a defined site for a stand at a UK exhibition, UK VAT will be applied to the cost of that stand.

It should also be noted that overseas businesses providing downloadable software to private customers in the UK have a liability to register for VAT in the UK. As there is no longer any minimum turnover threshold, those businesses would be required to register with immediate effect.

UK VAT registration formats

An overseas company with no UK office or other business establishment may either:

a. register as an overseas trader from its overseas office and submit UK VAT returns directly to HMRC;

b. appoint a UK VAT agent to deal with its UK VAT affairs (an agent is not liable for any VAT debts of the principal); or

c. appoint a UK VAT Representative to deal with its UK VAT affairs. The VAT Representative can complete UK VAT returns and is also liable for any VAT debts of the principal.

Overseas businesses incurring VAT on business trips to the UK

It should be noted that an overseas business incurring VAT on hotel accommodation and other expenses in the UK during business trips can make a claim to recover this VAT direct from the UK VAT authorities, even if there is no obligation for it to register for VAT in the UK. Claims can be submitted annually for the year to 30 June and must be submitted by 31 December of the same year.

NB: Use of document mainly in China/Hong Kong/Singapore/ Malaysia.

Personal Tax

The residence and domicile status of an individual will be important factors in determining their liability to UK taxation

Residence

With effect from 6 April 2013, our rules for determining tax residence have been put on a statutory footing. At the date of publication, this legislation was still in draft form and therefore subject to alteration.

There are many different factors which determine whether someone is resident in the UK in a particular year. The number of days spent in the UK in the tax year is the primary factor – those spending less than 16 days will usually be not resident while those spending greater than 183 days will always be resident. Between these two extremes residency depends on the number of days spent in the UK combined with other factors such as historic residency, available accommodation, where other family members reside and employment duties performed in the UK.

An individual who is resident in the UK may also be resident in another country. Where that country has a double tax agreement with the UK the individual might be treaty resident in one country or the other, the practical effect of which can be to treat certain income or gains as taxable in one country, not both.

There are special rules for individuals who return to the UK after a temporary period of non-residence. Broadly, certain income arising during the period of non-residence may be taxable on their return to the UK.

Domicile

In general, a person is domiciled in the country which they consider to be their permanent homeland. Every individual will have a domicile of origin at birth, normally their fathers domicile, and there is a general presumption against a change of domicile. As such, an individual who is not domiciled in the UK who comes to the UK with an intention to return to their home country is unlikely to acquire a UK domicile. Non UK domiciled individuals may take advantage of The Remittance Basis of Taxation.

What will count as earning in the UK?

The answer to this question may seem self-evident, but as always with tax matters, things are not necessarily as simple as they seem.

Naturally, taxable earnings include salaries, bonuses and commissions. But for tax purposes they can also include foreign-posting payments such as cost of living allowance, foreign service premium, foreign housing allowance, educational expenses, benefits in kind, some reimbursed expenses and any tax reimbursement payments.

Generally, income earned at a time when an individual is not resident in the UK, but received after he has become a resident, is not subject to UK tax.

Conversely, income earned whilst an individual is resident, but received after ceasing to be a resident, is still subject to UK tax.

The exact dates of arrival in and departure from the UK can be very important.

The operation of the UK/US Double Taxation Treaty can mean that, in certain circumstances (short term business visitors, for example), income earned in respect of duties carried out in one State are taxable only in the other State.

The remittance Basis

Individuals who are not domiciled in the UK, can take advantage of the remittance basis of taxation for offshore income and gains – but at a price.

Broadly, if the Remittance Basis is claimed, a UK resident but nondomiciled individual remains taxable on sources of income and gains that arise in the UK but not liable to UK tax on sources of foreign incomes and gains, to the extent that those sources are not remitted to the UK.

Capital gains and income realised before arrival in the UK held in the form of cash at that time can usually be remitted to the UK free of tax even after UK residence commences.

If unremitted overseas income and/or gains do not exceed £2,000, the remittance basis will apply automatically. Where unremitted income and gains exceed £2,000, the remittance basis can be claimed but the individual will forfeit their annual personal allowances and capital gains tax exemption.

Where an individual, such as a long term expat, has been resident to the UK, an annual charge is payable for accessing the remittance basis as follows: 7-9 years = £30,000; 12-14 years = £60,000; 17-20 years = £90,000.

In addition, the allowances mentioned above are lost. The decision whether to claim the remittance tax basis can be made on a year by year basis, although the Government are consulting on whether to force tax payers to elect the remittance basis to cover a 3 year period.

The rules regarding what constitutes a remittance are complex. Professional advice should be sought before bringing, or enjoying the benefit of, any non UK funds in the UK. Timing is crucial when it comes to remitting funds here. Tax credit relief may be available in certain circumstances, in respect of remitted funds already subject to tax in another jurisdiction.

There may be different tax consequences depending on the nature and source of the remitted funds.

The deductions and exemptions that can reduce your tax bill

Foreign nationals potentially qualify for a number of deductions and exemptions that can have a significant impact upon their tax liability. Below we summarise some of the more significant points.

Non-UK duties (Overseas Workday Relief)

For a period from the date of arrival in the UK to the following 5th April and two subsequent years, earnings and certain share incentives relating to work performed overseas during that period are not subject to UK tax if not remitted to the UK. To take advantage of these rules, it is essential that some (and preferably all) earnings from the employment are paid into a dedicated offshore account.

Detached Duty Relief

Housing and certain cost of living expenses paid for or reimbursed to an employee who has been seconded to the UK for a period not exceeding two years may qualify for complete or partial exemption from UK tax.

Expenses

Reimbursed expenses are taxable unless they qualify as allowable business expenses. Allowable expenses would normally include travel, provided the cost is incurred for legitimate business reasons.

However, expenses incurred in travelling from the UK to the individual’s home country and back which are met by the employer can be tax free for a period of up to 5 years. There are more limited exemptions for the cost of such travel for close family members.

Setting up a new home

Certain removal payments and benefits made to an employee who moves home for employment reasons (other than for a temporary purpose) are exempt from tax up to a limit of £8,000.

Structuring Bank Accounts

Individuals wishing to use the remittance Basis of taxation are advised to take care when structuring their banking arrangements in order to avoid unwittingly remitting income and/or gains to UK.

In order to qualify for the Overseas Workday Relief it is recommended that the earnings are paid to a nonUK bank account that is:

  • Solely in the name of the employee and;
  • Only contains employment income from a single employment It is recommended that prior to arrival in the UK employees wishing to make use of these rules set up a bank account outside the UK and arrange to have their salary paid into it. The employee will need to nominate this account in writing to the HMRC

Similarly, non-UK domiciled individuals coming to the UK with significant assets outside the UK may wish to structure their banking arrangements (ideally prior to arrival in the UK) in order to minimise potential exposure to UK tax on income and gains arising from those assets.

It is fairly standard practice to set up a “Capital Account” and a separate “Income Account”. The Capital Account initially contains all the cash funds at the date of arrival. Remittances from this account can be made whilst resident in the UK without triggering a UK tax charge. Any income generated by the Capital Account is then credited directly to the Income Account. Remittances from this account WOULD trigger a UK tax charge.

It is also preferable to segregate the proceeds from any profits from the sale of assets in another separate account.

Short-Term business visitors

There are special rules for Short Term Business Visitors (STBV). The rules exclude employers from PAYE withholding procedures where the employment article of a double tax treaty exempts the employment income from UK taxation.

The STBV scheme requires the employer to put in place an internal reporting system in order to keep an accurate record of employees visiting the UK on business. The level of reporting increases depending on the amount of days the employee spends in the UK. For employees who are in the UK for greater than 60 days, the employer must also provide information including details of the work undertaken to HMRC. All information should be supplied to HMRC by 31 May following the tax year end.

When counting days for this purpose the general principle is that any day during which the person is present in the UK, however briefly, counts as a day of presence.

If appropriate records are not kept, HMRC can insist that PAYE is operated on all employees regardless of the tax treaty provisions. This would result in each employee needing to file personal tax returns to apply the treaty exemption and recover the UK taxes.

Share Incentives and Options

Timing your arrival in the UK is also important in relation to share incentives and options. These rules are new and in each case needs careful analysis before advice can be given.

Generally, if shares or options are granted at the time when the individual is not UK resident and not in contemplation of UK employment, there is no income tax charge on grant or exercise.

Some share arrangements may fall short of being considered “options” for UK tax purposes. The taxability of these awards will depend on the specific share plan rules.

Once the individual is resident in the UK, the various tax charges for Employment Related Securities need to be considered.

In very broad terms, the gains arising from such acquisitions may be allocated between UK and overseas duties. Provided the employee has claimed the remittance basis during the “relevant period,” the amount allocated to overseas duties may be taxed on the remittance basis and the amount relating to UK duties may be subject to tax treaty “time apportionment” relief and foreign tax credit relief may apply.

Different rules can apply for national insurance purposes subject to any relief under the UK/US reciprocal arrangement.

The legislation also affects so called carried interests. The regulations are particularly complex and are aimed principally at venture capitalists. Any foreign nationals contemplating working in the UK should be certain to take professional advice before they arrive here.

Where shares constitute readily convertible assets, as defined, Income Tax and where appropriate National Insurance needs to be accounted for under PAYE.

Why professional advice is essential in every case

These articles cover some of the basic issues concerning registration and taxation of foreign companies operating in Britain and the tax rules of overseas citizens working here.

While we have highlighted some of the most important matters, the regulations can be complex.

Value Added Tax (VAT), for example, can be perplexing for businesses that are based in nonVAT countries.

Although it can be thought of as a form of sales tax, it is much more complicated than this suggests, and it is essential to take professional advice.

If you are thinking of setting up an operation in the UK, or if have already done so, we would be very pleased to meet.

As well as advising individuals and businesses on their tax affairs, we provide a wide range of additional services that could be of value to those moving to the UK.

We are able to assist with all the payroll services and other accounting requirements of an overseas employer with a UK base. Our services cover audit, company secretarial work, VAT and corporation tax compliance including transfer pricing issues.

For companies with ambitious plans, we also provide expert corporate finance advice, and can assist with strategic planning, mergers and acquisitions, and stock market flotations.

Learning more

HW Fisher & Company is a leading provider of professional services in the United Kingdom, and one of the 25 largest accountancy practices in the country.

We include a number of associated businesses providing expert advice in areas such as property, information technology, litigation support, licensing and royalty issues and corporate finance.

We are members of the Leading Edge Alliance, a global association of significant, independent accountancy firms with offices in major markets throughout the world.

For further information about our tax services for overseas companies planning to operate in the UK or for foreign citizens working here, or about any other aspect of our firm, please contact:

Alan Lester
T +44 (0)20 7388 7000
E alester@hwfisher.co.uk