SCHEDULES
F1F1F2SCHEDULE 28AA Provision not at arm’s length
Sch. 28AA inserted (with effect in accordance with s. 108(5)-(7) of the amending Act) by Finance Act 1998 (c. 36), s. 108(2), Sch. 16
Participation in the management, control or capital of a person
4
1
For the purposes of this Schedule a person is directly participating in the management, control or capital of another person at a particular time if, and only if, that other person is at that time—
a
a body corporate or a partnership; and
b
controlled by the first person.
2
For the purposes of this Schedule a person (“the potential participant”) is indirectly participating in the management, control or capital of another person at a particular time if, F3and (subject to paragraphs 4A and 6(4C) below) only if—
a
he would be taken to be directly so participating at that time if the rights and powers attributed to him included all the rights and powers mentioned in sub-paragraph (3) below that are not already attributed to him for the purposes of sub-paragraph (1) above; or
b
he is, at that time, one of a number of major participants in that other person’s enterprise.
3
The rights and powers referred to in sub-paragraph (2)(a) above are—
a
rights and powers which the potential participant is entitled to acquire at a future date or which he will, at a future date, become entitled to acquire;
b
rights and powers of persons other than the potential participant to the extent that they are rights or powers falling within sub-paragraph (4) below;
c
rights and powers of any person with whom the potential participant is connected; and
d
rights and powers which for the purposes of sub-paragraph (2)(a) above would be attributed to a person with whom the potential participant is connected if that connected person were himself the potential participant.
4
Rights and powers fall within this sub-paragraph to the extent that they—
a
are required, or may be required, to be exercised in any one or more of the following ways, that is to say—
i
on behalf of the potential participant;
ii
under the direction of the potential participant; or
iii
for the benefit of the potential participant;
and
b
are not confined, in a case where a loan has been made by one person to another, to rights and powers conferred in relation to property of the borrower by the terms of any security relating to the loan.
5
In sub-paragraphs (3)(b) to (d) and (4) above, the references to a person’s rights and powers include references to any rights or powers which he either—
a
is entitled to acquire at a future date, or
b
will, at a future date, become entitled to acquire.
6
In paragraph (d) of sub-paragraph (3) above, the reference to rights and powers which would be attributed to a connected person if he were the potential participant includes a reference to rights and powers which, by applying that paragraph wherever one person is connected with another, would be so attributed to him through a number of persons each of whom is connected with at least one of the others.
7
For the purposes of this paragraph a person (“the potential major participant”) is a major participant in another person’s enterprise at a particular time if at that time—
a
that other person (“the subordinate”) is a body corporate or partnership; and
b
the 40 per cent. test is satisfied in the case of each of two persons who, taken together, control the subordinate and of whom one is the potential major participant.
8
For the purposes of this paragraph the 40 per cent. test is satisfied in the case of each of two persons wherever each of them has interests, rights and powers representing at least 40 per cent. of the holdings, rights and powers in respect of which the pair of them fall to be taken as controlling the subordinate.
9
For the purposes of this paragraph—
a
the question whether a person is controlled by any two or more persons taken together, and
b
any question whether the 40 per cent. test is satisfied in the case of a person who is one of two persons,
shall be determined after attributing to each of the persons all the rights and powers attributed to a potential participant for the purposes of sub-paragraph (2)(a) above.
10
References in this paragraph—
a
to rights and powers of a person, or
b
to rights and powers which a person is or will become entitled to acquire,
include references to rights or powers which are exercisable by that person, or (when acquired by that person) will be exercisable, only jointly with one or more other persons.
11
For the purposes of this paragraph two persons are connected with each other if—
a
b
one of them is a trustee of a settlement and the other is—
i
a person who in relation to that settlement is a settlor; or
ii
a person who is connected with a person falling within sub-paragraph (i) above.
12
In sub-paragraph (11) above—
“relative” means brother, sister, ancestor or lineal descendant; and
F5“settlement” and “settlor” have the same meanings as in section 620 of ITTOIA 2005.
Sch. 28AA repealed (1.4.2010 with effect in accordance with s. 381(1) of the repealing Act) by Taxation (International and Other Provisions) Act 2010 (c. 8), Sch. 8 para. 111, Sch. 10 Pt. 2 (with Sch. 9)