87 Interest payments deemed to be distributions.U.K.
(1)In subsection (2) of section 209 of the Taxes Act 1988 (meaning of “distribution” for the purposes of the Corporation Tax Acts), after paragraph (d) there shall be inserted the following paragraph—
“(da)any interest or other distribution out of assets of the company (“the issuing company”) in respect of securities issued by that company which are held by another company where—
(i)the issuing company is a 75 per cent. subsidiary of the other company or both are 75 per cent. subsidiaries of a third company, and
(ii)the whole or any part of the distribution represents an amount which would not have fallen to be paid to the other company if the companies had been companies between whom there was (apart from in respect of the securities in question) no relationship, arrangements or other connection (whether formal or informal),
except so much, if any, of any such distribution as does not represent such an amount or as is a distribution by virtue of paragraph (d) above or an amount representing the principal secured by the securities;”.
(2)In paragraph (e) of that subsection—
(a)for “paragraph (d)” there shall be substituted “ paragraph (d) or (da) ”; and
(b)sub-paragraphs (iv) and (v) (distribution in respect of securities of subsidiaries of non-resident companies etc.) shall be omitted;
and, in subsection (3) of that section, for “subsection (2)(d)” there shall be substituted “ subsection (2)(d), (da) ”.
(3)After subsection (8) of that section there shall be inserted the following subsections—
“(8A)For the purposes of paragraph (da) of subsection (2) above subsections (2) to (4) of section 808A shall apply as they apply for the purposes of a special relationship provision such as is mentioned in that section but as if—
(a)the references in those subsections to the relationship in question were references to any relationship, arrangements or other connection between the issuing company and the other company mentioned in sub-paragraph (ii) of that paragraph; and
(b)the provision in question required no account to be taken, in the determination of any of the matters mentioned in subsection (8B) below, of (or of any inference capable of being drawn from) any other relationship, arrangements or connection (whether formal or informal) between the issuing company and any person, except where that person—
(i)has no relevant connection with the issuing company, or
(ii)is a company that is a member of the same UK grouping as the issuing company.
(8B)The matters mentioned in subsection (8A)(b) above are the following—
(a)the appropriate level or extent of the issuing company’s overall indebtedness;
(b)whether it might be expected that the issuing company and a particular person would have become parties to a transaction involving the issue of a security by the issuing company or the making of a loan, or a loan of a particular amount, to that company; and
(c)the rate of interest and other terms that might be expected to be applicable in any particular case to such a transaction.
(8C)For the purposes of subsection (8A) above a person has a relevant connection with the issuing company if he is connected with it within the terms of section 839 or that person (without being so connected to the issuing company) is—
(a)an effective 51 per cent. subsidiary of the issuing company; or
(b)a company of which the issuing company is an effective 51 per cent. subsidiary.
(8D)For the purposes of subsection (8A) above any question as to what constitutes the UK grouping of which the issuing company is a member or as to the other members of that grouping shall be determined as follows—
(a)where the issuing company has no effective 51 per cent. subsidiaries and is not an effective 51 per cent. subsidiary of a company resident in the United Kingdom, the issuing company shall be taken to be a member of a UK grouping of which it is itself the only member;
(b)where the issuing company has one or more effective 51 per cent. subsidiaries and is not an effective 51 per cent. subsidiary of a company resident in the United Kingdom, the issuing company shall be taken to be a member of a UK grouping of which the only members are the issuing company and its effective 51 per cent. subsidiaries; and
(c)where the issuing company is an effective 51 per cent. subsidiary of a company resident in the United Kingdom (“the UK holding company”), the issuing company shall be taken to be a member of a UK grouping of which the only members are—
(i)the UK holding company or, if there is more than one company resident in the United Kingdom of which the issuing company is an effective 51 per cent. subsidiary, such one of them as is not itself an effective 51 per cent. subsidiary of any of the others, and
(ii)the effective 51 per cent. subsidiaries of the company which is a member of that grouping by virtue of sub-paragraph (i) above.
(8E)For the purposes of subsections (8C) and (8D) above section 170(7) of the 1992 Act shall apply for determining whether a company is an effective 51 per cent. subsidiary of another company but shall so apply as if the question whether the effective 51 per cent. subsidiaries of a company resident in the United Kingdom (“the putative holding company”) include either—
(a)the issuing company, or
(b)a company of which the issuing company is an effective 51 per cent. subsidiary,
were to be determined without regard to any beneficial entitlement of the putative holding company to any profits or assets of any company resident outside the United Kingdom.
(8F)References in subsections (8D) and (8E) above to a company that is resident in the United Kingdom shall not include references to a company which is a dual resident company for the purposes of section 404.”
(4)In section 212 of that Act (exceptions from the definition of a “distribution” for certain interest and other payments)—
(a)in subsection (1), in paragraph (b), after “within” there shall be inserted “ paragraph (da) of section 209(2) or ”;
(b)in subsection (3)—
(i)at the beginning there shall be inserted “ Without prejudice to subsection (4) below, ”; and
(ii)at the end there shall be inserted “ and does not apply in relation to any interest or distribution falling within section 209(2)(da) if that interest or distribution is otherwise outside the matters in respect of which that company is within the charge to corporation tax. ”; and
(c)after subsection (3) there shall be inserted the following subsection—
“(4)Where any interest or other distribution is paid to a charity (within the meaning of section 506) or to any of the bodies mentioned in section 507, the interest or distribution so paid shall not be a distribution for the purposes of the Corporation Tax Acts if it would otherwise fall to be treated as such a distribution by virtue only of paragraph (da) of section 209(2).”
(5)In section 710(3)(a) of that Act (meaning of securities), for “section 209(2)(e)(iv) or (v)” there shall be substituted “ section 209(2)(da) ”.
(6)In paragraph 5(5) of Schedule 4 to that Act (deep discount securities), for “section 209(2)(d)” there shall be substituted “ section 209(2)(d), (da) ”.
(7)This section has effect, subject to subsection (8) below, in relation to any interest or other distribution paid on or after 29th November 1994.
(8)This section shall not have effect in relation to any interest or other distribution paid before 1st April 1995 in respect of any security if the security is one in the case of which a notice given before 29th November 1994 under Regulation 2(2) of the M1Double Taxation Relief (Taxes on Income) (General) Regulations 1970 was in force immediately before 29th November 1994 as regards payments of interest or other distributions made in respect of that security.
Marginal Citations