C33C34C35PART VI COMPANY DISTRIBUTIONS, TAX CREDITS ETC
Pt. 6 modified by Gas Act 1986 (c. 44), s. 60(3) (as substituted (with effect in accordance with s. 105(1) of the amending Act) by Finance Act 1996 (c. 8), Sch. 14 para. 4 (with Sch. 15))
Pt. 6 modified by British Steel Act 1988 (c. 35), s. 11(7) (as substituted (with effect in accordance with s. 105(1) of the amending Act) by Finance Act 1996 (c. 8), Sch. 14 para. 55 (with Sch. 15))
C1CHAPTER I TAXATION OF COMPANY DISTRIBUTIONS
Pt. 6 Chs. 1-3: power to amend conferred (1.4.2009 with effect in accordance with s. 1329(1) of the affecting Act) by Corporation Tax Act 2009 (c. 4), s. 533(2)(3)(d)
207AF1 Application of lower rate to company distributions.
F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C2C3C4C5C6208 U.K. company distributions not generally chargeable to corporation tax.
M1Except as otherwise provided by the Corporation Tax Acts, corporation tax shall not be chargeable on dividends and other distributions of a company resident in the United Kingdom, nor shall any such dividends or distributions be taken into account in computing income for corporation tax.
C7C8C9C12CHAPTER II MATTERS WHICH ARE DISTRIBUTIONS FOR THE PURPOSES OF THE CORPORATION TAX ACTS
Pt. 6 Ch. 2 modified (retrospective to 11.1.1994) by Finance Act 1994 (c. 9), s. 252(1)(3), Sch. 24 para. 14(5)
Pt. 6 Ch. 2 modified (19.9.1994) by Coal Industry Act 1994 (c. 21), s. 68(4), Sch. 4 para. 13(5) (with s. 40(7), Sch. 4 para. 14); S.I. 1994/2189, art. 2, Sch.
Pt. 6 Ch. 2 modified (8.11.1995) by Gas Act 1995 (c. 45), s. 18(2)(c), Sch. 5 paras. 1, 10(4)
Pt. 6 Chs. 1-3: power to amend conferred (1.4.2009 with effect in accordance with s. 1329(1) of the affecting Act) by Corporation Tax Act 2009 (c. 4), s. 533(2)(3)(d)
209 Meaning of “distribution”.
C101
M2The following provisions of this Chapter, together with section 418, shall, subject to F72any express exceptions, have effect with respect to the meaning of “distribution” and for determining the persons to whom certain distributions are to be treated as made, but references in the Corporation Tax Acts to distributions of a company shall not apply to distributions made in respect of share capital in a winding up.
2
In the Corporation Tax Acts “distribution”, in relation to any company, means—
a
M3any dividend paid by the company, including a capital dividend;
C11b
subject to subsections (5) and (6) below, any other distribution out of assets of the company (whether in cash or otherwise) in respect of shares in the company, except so much of the distribution, if any, as represents repayment of capital on the shares or is, when it is made, equal in amount or value to any new consideration received by the company for the distribution;
c
subject to section 230, any redeemable share capital or any security issued by the company in respect of shares in or securities of the company otherwise than wholly for new consideration, or such part of any redeemable share capital or any security so issued as is not properly referable to new consideration;
d
M4any interest or other distribution out of assets of the company in respect of securities of the company, where they are securities under which the consideration given by the company for the use of the principal thereby secured represents more than a reasonable commercial return for the use of that principal, except so much, if any, of any such distribution as represents that principal and so much as represents a reasonable commercial return for the use of that principal;
e
M5any interest or other distribution out of assets of the company in respect of securities of the company (except so much, if any, of any such distribution as represents the principal thereby secured and except so much of any distribution as falls within F66paragraph (d) F76. . . above), where the securities are—
i
securities issued as mentioned in paragraph (c) above, but excluding securities issued before 6th April 1965 in respect of shares and securities issued before 6th April 1972 in respect of securities; or
ii
securities convertible directly or indirectly into shares in the company or securities issued after 5th April 1972 and carrying any right to receive shares in or securities of the company, not being (in either case) securities F70listed on a recognised stock exchange nor issued on terms which are reasonably comparable with the terms of issue of securities so F70listed; or
iii
securities under which the consideration given by the company for the use of the principal secured is to any extent dependent on the results of the company’s business or any part of it; or
iv
F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
v
F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
vi
securities which are connected with shares in the company, and for this purpose securities are so connected if, in consequence of the nature of the rights attaching to the securities or shares and in particular of any terms or conditions attaching to the right to transfer the shares or securities, it is necessary or advantageous for a person who has, or disposes of or acquires, any of the securities also to have, or to dispose of or to acquire, a proportionate holding of the shares F63or;
vii
equity notes issued by the company (“the issuing company”) and held by a company which is associated with the issuing company or is a funded company;
f
any such amount as is required to be treated as a distribution by subsection (4) below or section 210.
3
M6Without prejudice to section 254(11), no amount shall be regarded for the purposes of F68subsection (2)(d)F77. . . and (e) above as representing the principal secured by a security issued after 5th April 1972 in so far as it exceeds any new consideration which has been received by the company for the issue of the security.
F713A
Where any security of a company is issued at a premium representing new consideration—
a
the references in subsection (2)(d)F78. . . and (e) above to so much of any distribution as represents, or is an amount representing, the principal secured by a security shall be construed, in relation to a distribution in respect of the security issued at a premium, as references to the aggregate of—
i
so much of the distribution as represents, or is an amount representing, that principal, and
ii
so much of it as represents, or is an amount representing, the premium;
and
b
the reference in subsection (2)(d) above to so much of any distribution as represents a reasonable commercial return for the use of the principal secured by a security shall be construed, in relation to a distribution in respect of the security issued at a premium, as a reference to the aggregate of—
i
so much of the distribution as represents a reasonable commercial return for the use of that principal, and
ii
so much of it as (when regard is had to the extent to which distributions represent the premium) represents a reasonable commercial return for the use of the premium.
F743AA
If, in the case of any security issued by a company, the amount of new consideration received by the company for the issue of the security exceeds the amount of the principal secured by the security—
a
the amount of the principal so secured shall be treated for the purposes of paragraph (d) of subsection (2) above as increased to the amount of the new consideration so received; and
b
subsection (3A) above, so far as relating to that paragraph, shall not have effect in relation to the security;
but this subsection is subject to sections 209A and 209B.
F733B
For the purposes of subsection (2)(e)(iii) above the consideration given by the company for the use of the principal secured shall not be treated as being to any extent dependent on the results of the company’s business or any part of it by reason only of the fact that the terms of the security provide—
a
for the consideration to be reduced in the event of the results improving, or
b
for the consideration to be increased in the event of the results deteriorating.
4
M7Where on a transfer of assets or liabilities by a company to its members or to a company by its members, the amount or value of the benefit received by a member (taken according to its market value) exceeds the amount or value (so taken) of any new consideration given by him, the company shall, subject to subsections (5) and (6) below, be treated as making a distribution to him of an amount equal to the difference.
5
Subsection (4) above shall not apply where the company and the member receiving the benefit are both resident in the United Kingdom and either the former is a subsidiary of the latter or both are subsidiaries of a third company also so resident; and any amount which would apart from this subsection be a distribution shall not constitute a distribution by virtue of subsection (2)(b) above.
6
M8No transfer of assets (other than cash) or of liabilities between one company and another shall constitute, or be treated as giving rise to, a distribution by virtue of subsection (2)(b) or (4) above if they are companies—
a
both of which are resident in the United Kingdom and neither of which is a 51 per cent. subsidiary of a company not so resident; and
b
which, neither at the time of the transfer nor as a result of it, are under common control.
For the purposes of this subsection two companies are under common control if they are under the control of the same person or persons, and for this purpose “control” shall be construed in accordance with section 416.
7
M9The question whether one body corporate is a subsidiary of another for the purpose of subsection (5) above shall be determined as a question whether it is a 51 per cent. subsidiary of that other, except that that other shall be treated as not being the owner—
a
of any share capital which it owns directly in a body corporate, if a profit on a sale of the shares would be treated as a trading receipt of its trade; or
b
of any share capital which it owns indirectly, and which is owned directly by a body corporate for which a profit on the sale of the shares would be a trading receipt; or
c
of any share capital which it owns directly or indirectly in a body corporate not resident in the United Kingdom.
8
M10For the purposes of subsection (2)(c) above—
a
the value of any redeemable share capital shall be taken to be the amount of the share capital together with any premium payable on redemption, or in a winding up, or in any other circumstances; and
b
the value of any security shall be taken to be the amount of the principal thereby secured (including any premium payable at maturity or in a winding up, or in any other circumstances);
and in determining the amount of the distribution constituted by the issue of any redeemable share capital or any security, the capital or security shall be taken at that value.
F698A
F79. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8B
F79. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8C
F79. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8D
F79. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8E
F79. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8F
F79. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F649
For the purposes of subsection (2)(e)(vii) above a security is an equity note if as regards the whole of the principal or as regards any part of it—
a
the security’s terms contain no particular date by which it is to be redeemed,
b
under the security’s terms the date for redemption, or the latest date for redemption, falls after the expiry of the permitted period,
c
under the security’s terms redemption is to occur after the expiry of the permitted period if a particular event occurs and the event is one which (judged at the time of the security’s issue) is certain or likely to occur, or
d
the issuing company can secure that there is no particular date by which the security is to be redeemed or that the date for redemption falls after the expiry of the permitted period;
and the permitted period is the period of 50 years beginning with the date of the security’s issue.
10
For the purposes of subsection (2)(e)(vii) above and subsection (11) below a company is associated with the issuing company if—
a
the issuing company is a 75 per cent. subsidiary of the other company,
b
the other company is a 75 per cent. subsidiary of the issuing company, or
c
both are 75 per cent. subsidiaries of a third company.
11
For the purposes of subsection (2)(e)(vii) above a company is a funded company if there are arrangements involving the company being put in funds (directly or indirectly) by the issuing company or a company associated with the issuing company.
F3209A Section 209(3AA): link to shares of company or associated company
1
Subsection (3AA) of section 209 does not apply in relation to a security issued by a company (the “issuing company”) if the security is one which to a significant extent reflects dividends or other distributions in respect of, or fluctuations in the value of, shares in one or more companies each of which is—
a
the issuing company; or
b
an associated company of the issuing company;
but this subsection is subject to the following provisions of this section.
2
Subsection (1) above does not prevent subsection (3AA) of section 209 above from applying in relation to a security if—
a
the issuing company is a bank or securities house;
b
the security is issued by the issuing company in the ordinary course of its business; and
c
the security reflects dividends or other distributions in respect of, or fluctuations in the value of, shares in companies falling within paragraph (a) or (b) of subsection (1) above by reason only that the security reflects fluctuations in a qualifying index.
3
In subsection (2)(c) above “qualifying index” means an index whose underlying subject matter includes both—
a
shares in one or more companies falling within paragraph (a) or (b) of subsection (1) above, and
b
shares in one or more companies falling within neither of those paragraphs,
and which is an index such that the shares falling within paragraph (b) above represent a significant proportion of the market value of the underlying subject matter of the index.
4
In this section—
“bank” has the meaning given by section 840A;
“securities house” means any person—
- a
who is authorised for the purposes of the Financial Services and Markets Act 2000; and
- b
whose business consists wholly or mainly of dealing in financial instruments as principal;
and in paragraph (b) above “financial instrument” has the meaning given by F81section 984 of ITA 2007.
- a
5
For the purposes of this section a company is an “associated company” of another at any time if at that time one has control of the other or both are under the control of the same person or persons.
6
For the purposes of subsection (5) above, “control”, in relation to a company, means the power of a person to secure—
a
by means of the holding of shares or the possession of voting power in or in relation to the company or any other company, or
b
by virtue of any powers conferred by the articles of association or other document regulating the company or any other company,
that the affairs of the company are conducted in accordance with his wishes.
7
There shall be left out of account for the purposes of subsection (6) above—
a
any shares held by a company, and
b
any voting power or other powers arising from shares held by a company,
if a profit on a sale of the shares would be treated as a trading receipt of a trade carried on by the company and the shares are not, within the meaning of Chapter 1 of Part 12, assets of an insurance company’s long-term insurance fund (see section 431(2)).
F3209B Section 209(3AA): hedging arrangements
1
Subsection (3AA) of section 209 does not at any time apply in relation to a security issued by a company (the “issuing company”) if at that time, or any earlier time on or after 17th April 2002, there are or have been any hedging arrangements that relate to some or all of the company’s liabilities under the security.
2
Subsection (1) above does not prevent subsection (3AA) of section 209 from applying in relation to a security at any time if—
a
conditions 1 to 4 below are satisfied in relation to any such hedging arrangements at that time; and
b
at all earlier times on or after 17th April 2002 when there have been hedging arrangements that relate to some or all of the company’s liabilities under the security, conditions 1 to 4 below were satisfied in relation to those hedging arrangements.
3
Where subsection (3AA) of section 209 at any time ceases to apply in relation to a security by virtue of this section, subsection (2)(d) of that section shall have effect in relation to the security as from that time as it would have had effect if subsection (3AA) had never applied in relation to the security.
4
Condition 1 is that the hedging arrangements do not constitute, include, or form part of, any scheme or arrangement the purpose or one of the main purposes of which is the avoidance of tax F82(including stamp duty or stamp duty land tax).
5
Condition 2 is that the hedging arrangements are such that, where for the purposes of corporation tax a deduction in respect of the security falls to be made at any time by the issuing company, then at that time, or within a reasonable time before or after it, any amounts intended under the hedging arrangements to offset some or all of that deduction arise—
a
to the issuing company; or
b
to a company which is a member of the same group of companies as the issuing company.
6
Condition 3 is that the whole of every amount arising as mentioned in subsection (5) above is brought into charge to corporation tax—
a
by a company falling within paragraph (a) or (b) of that subsection, or
b
by two or more companies, taken together, each of which falls within paragraph (a) or (b) of that subsection.
7
Condition 4 is that for the purposes of corporation tax any deductions in respect of expenses of establishing or administering the hedging arrangements are reasonable, in proportion to the amounts required to be brought into charge to corporation tax by subsection (6) above.
8
For the purposes of this section “hedging arrangements”, in relation to a security, means any scheme or arrangement for the purpose, or for purposes which include the purpose, of securing that an amount of income or gain accrues, or is received or receivable, whether directly or indirectly, which is intended to offset some or all of the amounts which fall to be brought into account, in accordance with generally accepted accounting practice, in respect of amounts accruing or falling to be paid in accordance with the terms of the security.
9
Any reference in this section to two companies being members of the same group of companies is a reference to their being members of the same group of companies for the purposes of Chapter 4 of Part 10 of this Act (group relief).
210 Bonus issue following repayment of share capital.
M111
Where a company—
a
repays any share capital or has done so at any time after 6th April 1965, and
b
at or after the time of that repayment issues any share capital as paid up otherwise than by the receipt of new consideration,
the amount so paid up shall, except as provided by any provision of the Corporation Tax Acts, be treated as a distribution made in respect of the shares on which it is paid up, except in so far as that amount exceeds the amount or aggregate amount of share capital so repaid less any amounts previously so paid up and treated by virtue of this subsection as distributions.
2
Subsection (1) above shall not apply where the repaid share capital consists of fully paid preference shares—
a
if those shares existed as issued and fully paid preference shares on 6th April 1965 and throughout the period from that date until the repayment those shares continued to be fully paid preference shares, or
b
if those shares were issued after 6th April 1965 as fully paid preference shares wholly for new consideration not derived from ordinary shares and throughout the period from their issue until the repayment those shares continued to be fully paid preference shares.
3
M12Except in relation to a company within paragraph D of section 704, subsection (1) above shall not apply if the issue of share capital mentioned in paragraph (b) of that subsection—
a
is of share capital other than redeemable share capital; and
b
takes place after 5th April 1973 and more than ten years after the repayment of share capital mentioned in paragraph (a) of that subsection.
4
M13In this section—
“ordinary shares” means shares other than preference shares;
“preference shares” means shares—
- a
which do not carry any right to dividends other than dividends at a rate per cent. of the nominal value of the shares which is fixed, and
- b
which carry rights in respect of dividends and capital which are comparable with those general for fixed-dividend shares F80included in the official UK list; and
- a
“new consideration not derived from ordinary shares” means new consideration other than consideration—
- a
consisting of the surrender, transfer or cancellation of ordinary shares of the company or any other company or consisting of the variation of rights in ordinary shares of the company or any other company, or
- b
derived from a repayment of share capital paid in respect of ordinary shares of the company or of any other company.
- a
211 Matters to be treated or not to be treated as repayments of share capital.
1
M14Where—
a
a company issues any share capital as paid up otherwise than by the receipt of new consideration, or has done so after 6th April 1965; and
b
any amount so paid up does not fall to be treated as a qualifying distribution or, where the issue took place before 6th April 1973, did not fall to be treated as a distribution;
then, except as otherwise provided by any provision of the Corporation Tax Acts, for the purposes of sections 209 and 210, distributions afterwards made by the company in respect of shares representing that share capital shall not be treated as repayments of share capital, except to the extent to which those distributions, together with any relevant distributions previously so made, exceed the amounts so paid up (then or previously) on such shares after 6th April 1965 and not falling to be treated as qualifying distributions or, where the share capital was issued before 6th April 1973, as distributions.
2
M15Except in relation to a company within paragraph D of section 704, subsection (1) above shall not prevent a distribution being treated as a repayment of share capital if it is made—
a
more than ten years after the issue of share capital mentioned in paragraph (a) of that subsection; and
b
in respect of share capital other than redeemable share capital.
3
M16In subsection (1) above “relevant distribution” means so much of any distribution made in respect of shares representing the relevant share capital as apart from that subsection would be treated as a repayment of share capital, but by virtue of that subsection cannot be so treated.
4
For the purposes of subsection (1) above all shares of the same class shall be treated as representing the same share capital, and where shares are issued in respect of other shares, or are directly or indirectly converted into or exchanged for other shares, all such shares shall be treated as representing the same share capital.
5
Where share capital is issued at a premium representing new consideration, the amount of the premium is to be treated as forming part of that share capital for the purpose of determining under this Chapter whether any distribution made in respect of shares representing the share capital is to be treated as a repayment of share capital.
6
Subsection (5) above shall not have effect in relation to any part of the premium after that part has been applied in paying up share capital.
7
Subject to subsection (5) above, premiums paid on redemption of share capital are not to be treated as repayments of capital.
CHAPTER III MATTERS WHICH ARE NOT DISTRIBUTIONS FOR THE PURPOSES OF THE CORPORATION TAX ACTS
Payments of interest
212 Interest etc. paid in respect of certain securities.
M171
Any interest or other distribution—
a
which is paid out of the assets of a company (“the borrower”) to another company which is within the charge to corporation tax; and
b
c
which does not fall within paragraph (d) of section 209(2),
shall not be a distribution for the purposes of the Corporation Tax Acts unless the application of this subsection is excluded by subsection (2) or (3) below.
2
Subsection (1) above does not apply in the case of any interest or other distribution which is paid in respect of a security of the borrower falling within section 209(2)(e)(iii) if—
a
the principal secured does not exceed £100,000; and
b
the borrower is under an obligation to repay the principal and interest before the expiry of the period of five years beginning on the date on which the principal was paid to the borrower; and
c
that obligation either was entered into before 9th March 1982 or was entered into before 1st July 1982 pursuant to negotiations which were in progress on 9th March 1982; and
d
where the period for repayment of either principal or interest is extended after 8th March 1982 (but paragraph (b) above still applies), the interest or other distribution is paid within the period which was applicable immediately before that date;
and for the purposes of paragraph (c) above negotiations shall not be regarded as having been in progress on 9th March 1982 unless, before that date, the borrower had applied to the lender for a loan and had supplied the lender with any documents required by him to support the application.
3
4
F86. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Demergers
213 Exempt distributions.
M181
The provisions of this section and sections 214 to 218 have effect for facilitating certain transactions whereby trading activities carried on by a single company or group are divided so as to be carried on by two or more companies not belonging to the same group or by two or more independent groups.
2
References in the Corporation Tax Acts to distributions of a company shall not apply to any distribution—
a
which falls within subsection (3) below, and
b
in respect of which the conditions specified in subsections (4) to (12) below are satisfied;
and any such distribution is referred to in this section as an “exempt distribution”.
3
The following distributions fall within this subsection—
a
a distribution consisting of the transfer to all or any of its members by a company (“the distributing company”) of shares in one or more companies which are its 75 per cent. subsidiaries;
b
a distribution consisting of the transfer by a company (“the distributing company”) to one or more other companies (“the transferee company or companies”) of—
i
a trade or trades; or
ii
shares in one or more companies which are 75 per cent. subsidiaries of the distributing company,
and the issue of shares by the transferee company or companies to all or any of the members of the distributing company;
and in this section and sections 214 to 217 references to a relevant company are to the distributing company, to each subsidiary whose shares are transferred as mentioned in paragraph (a) or (b) (ii) above and to each transferee company mentioned in paragraph (b) above.
4
Each relevant company must be resident in the United Kingdom at the time of the distribution.
5
The distributing company must at the time of the distribution be either a trading company or a member of a trading group and each subsidiary whose shares are transferred as mentioned in subsection (3)(a) or (b)(ii) above must at that time be either a trading company or the holding company of a trading group.
6
In a case within subsection F87(3)(a) above—
a
the shares must not be redeemable, must constitute the whole or substantially the whole of the distributing company’s holding of the ordinary share capital of the subsidiary and must confer the whole or substantially the whole of the distributing company’s voting rights in the subsidiary; and
b
subject to subsections (7) and (12)(b) below, the distributing company must after the distribution be either a trading company or the holding company of a trading group.
7
Subsection (6)(b) above does not apply if the transfer relates to two or more 75 per cent. subsidiaries of the distributing company and that company is dissolved without there having been after the distribution any net assets of the company available for distribution in a winding up or otherwise.
8
In a case within subsection (3)(b) above—
a
if a trade is transferred the distributing company must either not retain any interest or retain only a minor interest in that trade;
b
if shares in a subsidiary are transferred those shares must constitute the whole or substantially the whole of the distributing company’s holding of the ordinary share capital of the subsidiary and must confer the whole or substantially the whole of the distributing company’s voting rights in the subsidiary;
c
the only or main activity of the transferee company or each transferee company after the distribution must be the carrying on of the trade or the holding of the shares transferred to it;
d
the shares issued by the transferee company or each transferee company must not be redeemable, must constitute the whole or substantially the whole of its issued ordinary share capital and must confer the whole or substantially the whole of the voting rights in that company; and
e
subject to subsections (9) and (12)(b) below, the distributing company must after the distribution be either a trading company or the holding company of a trading group.
9
Subsection (8)(e) above does not apply if there are two or more transferee companies each of which has a trade or shares in a separate 75 per cent. subsidiary of the distributing company transferred to it and the distributing company is dissolved without there having been after the distribution any net assets of the company available for distribution in a winding up or otherwise.
10
The distribution must be made wholly or mainly for the purpose of benefiting some or all of the trading activities which before the distribution are carried on by a single company or group and after the distribution will be carried on by two or more companies or groups.
11
The distribution must not form part of a scheme or arrangements the main purpose or one of the main purposes of which is—
a
the avoidance of tax (including F88stamp duty or stamp duty land tax); or
b
without prejudice to paragraph (a) above, the making of a chargeable payment, as defined by section 214, or what would be such a payment if any of the companies mentioned in that section were an unquoted company; or
c
the acquisition by any person or persons other than members of the distributing company of control of that company, of any other relevant company or of any company which belongs to the same group as any such company; or
d
the cessation of a trade or its sale after the distribution.
In paragraph (c) above “group” means a company which has one or more 51 per cent. subsidiaries together with that or those subsidiaries.
12
Where the distributing company is a 75 per cent. subsidiary of another company—
a
the group (or, if more than one, the largest group) to which the distributing company belongs at the time of the distribution must be a trading group;
b
subsections (6)(b) and (8)(e) above shall not apply; and
c
the distribution must be followed by one or more other distributions falling within subsection (3)(a) or (b)(ii) above which satisfy the conditions of this section and result in members of the holding company of the group (or, if more than one, the largest group) to which the distributing company belonged at the time of the distribution becoming members of—
i
the transferee company or each transferee company to which a trade was transferred by the distributing company; or
ii
the subsidiary or each subsidiary whose shares were transferred by the distributing company; or
iii
a company (other than that holding company) of which the company or companies mentioned in sub-paragraph (i) or (ii) above are 75 per cent. subsidiaries.
F4213AExempt distributions: division of business
1
A reference in the Corporation Tax Acts to distributions of a company shall not apply to a distribution if—
a
it is a distribution consisting of—
i
the transfer of part of a business by a company (“the distributing company”) to one or more other companies (“the transferee company or companies”), and
ii
the issue of shares by the transferee company or companies to the members of the distributing company, and
b
the requirements of either section 140A(1A) of the 1992 Act (division of UK business) or section 140C(1A) of that Act (division of non-UK business) are satisfied in relation to the distribution.
2
A distribution to which this section applies is an “exempt distribution” for the purposes of sections 214 to 217.
3
The expression “relevant company” in sections 214 to 217 includes the distributing company and the transferee company or companies.
214 Chargeable payments connected with exempt distributions.
1
M19If within five years after the making of an exempt distribution there is a chargeable payment—
a
the amount or value of the payment shall be treated as income F91. . . ;
F92ab
that income shall be chargeable to tax;
b
F94. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
the payment shall be regarded as a distribution for the purposes of F89section 337A(1) ; and
d
the payment shall not (if it otherwise would) be treated as a repayment of capital for the purposes of section 210 or 211.
F931A
Income tax chargeable by virtue of subsection (1) shall be charged on the full amount or value of the payment made in the year of assessment; and the person liable for any tax so charged is the person receiving or entitled to the payment.
1B
Corporation tax chargeable by virtue of subsection (1) shall be charged under Case VI of Schedule D.
2
M20In this section “a chargeable payment” means any payment made otherwise than for bona fide commercial reasons or forming part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax (including F90stamp duty or stamp duty land tax), being a payment which—
a
a company concerned in an exempt distribution makes directly or indirectly to a member of that company or of any other company concerned in that distribution; and
b
is made in connection with, or with any transaction affecting, the shares in that or any such company; and
c
is not a distribution or exempt distribution or made to another company which belongs to the same group as the company making the payment.
3
Where a company concerned in an exempt distribution is an unquoted company subsection (2)(a) above shall have effect as if any reference to the making of a payment by, or to a member of, a company concerned in the exempt distribution included a reference to the making of a payment by or to any other person in pursuance of a scheme or arrangements made with the unquoted company or, if the unquoted company is—
a
under the control of five or fewer persons; and
b
not under the control of (and only of) a company which is not itself under the control of five or fewer persons,
with any of the persons mentioned in paragraph (a) above.
4
References in this section to a company concerned in an exempt distribution are to any relevant company and to any other company which was connected with any such company for the whole or any part of the period beginning with the exempt distribution and ending with the making of the payment which is in question under this section.
5
For the purposes of subsection (4) above and this subsection a company shall be deemed to have been connected in the period referred to in that subsection with each company to which a company connected with it was connected in that period.
6
References in this section to a payment include references to a transfer of money’s worth including the assumption of a liability.
215 Advance clearance by Board of distributions and payments.
1
M21A distribution shall be treated as an exempt distribution in any case in which, before the distribution is made, the Board have, on the application of the distributing company, notified that company that the Board are satisfied that it will be such a distribution.
2
A payment shall not be treated as a chargeable payment in any case in which, before the payment is made, the Board have, on the application of the person intending to make it, notified him that they are satisfied that it will be made for bona fide commercial reasons and will not form part of any scheme or arrangements the main purpose, or one of the main purposes, of which is the avoidance of tax (including F95stamp duty or stamp duty land tax).
3
A company which becomes or ceases to be connected with another company may make an application under subsection (2) above as respects any payments that may be made by it at any time after becoming or ceasing to be so connected (whether or not there is any present intention to make any payments); and where a notification is given by the Board on such an application no payment to which the notification relates shall be treated as a chargeable payment by reason only of the company being or having been connected with the other company.
4
References in subsections (2) and (3) above to a payment shall be construed as in section 214.
5
M22Any application under this section shall be in writing and shall contain particulars of the relevant transactions and the Board may, within 30 days of the receipt of the application or of any further particulars previously required under this subsection, by notice require the applicant to furnish further particulars for the purposes of enabling the Board to make their decision; and if any such notice is not complied with within 30 days or such longer period as the Board may allow, the Board need not proceed further on the application.
6
The Board shall notify their decision to the applicant within 30 days of receiving the application or, if they give a notice under subsection (5) above, within 30 days of the notice being complied with.
7
If the Board notify the applicant that they are not satisfied as mentioned in subsection (1) or (2) above or do not notify their decision to the applicant within the time required by subsection (6) above, the applicant may within 30 days of the notification or of that time require the Board to transmit the application, together with any notice given and further particulars furnished under subsection (5) above, to the Special Commissioners; and in that event any notification by the Special Commissioners shall have effect for the purposes of this section as if it were a notification by the Board.
8
If any particulars furnished under this section do not fully and accurately disclose all facts and circumstances material for the decision of the Board or the Special Commissioners, any resulting notification that the Board or Commissioners are satisfied as mentioned in subsection (1) or (2) above shall be void.
216 Returns.
1
M23Where a company makes an exempt distribution it shall within 30 days after the distribution make a return to the inspector giving particulars of the distribution and of the circumstances by reason of which it is exempt.
2
M24Where within five years after the making of an exempt distribution a person makes a chargeable payment which consists of a transfer of money’s worth, he shall within 30 days after the transfer make a return to the inspector giving particulars—
a
of the transaction effecting the transfer;
b
of the name and address of the recipient or each recipient and the value of what is transferred to him or each of them; and
c
if the transfer is accompanied by a chargeable payment consisting of a payment of money, of that payment.
3
Subject to subsection (4) below, where within five years after the making of an exempt distribution a person makes a payment or a transfer of money’s worth which would be a chargeable payment but for the fact that it is made for bona fide commercial reasons and does not form part of any such scheme or arrangements as are mentioned in section 214(2), that person shall within 30 days after making the payment or transfer make a return to the inspector giving particulars—
a
in the case of a transfer, of the transaction by which it is effected;
b
of the name and address of the recipient or each recipient and the amount of the payment made, or the value of what is transferred, to him or each of them; and
c
of the circumstances by reason of which the payment or transfer is not a chargeable payment.
4
Subsection (3) above does not apply where the payment or transfer is one in relation to which a notification under section 215(3) has effect.
217 Information.
1
M26Where a distribution falling within section 213(3) has been made and the inspector has reason to believe that it may form part of any such scheme or arrangements as are mentioned in section 213(11), he may by notice require any relevant company or any person controlling any such company to furnish him within such time, not being less than 30 days, as may be specified in the notice with—
a
a declaration in writing stating whether or not, according to information which the company or that person has or can reasonably obtain, any such scheme or arrangements exist or have existed;
b
such other information as the inspector may reasonably require for the purposes of section 213(11) and the company or that person has or can reasonably obtain.
2
M27If the inspector has reason to believe that a person has not delivered an account or made a return which he is required to deliver or make by virtue of section 214(1)(b) or 216(2) or (3) in respect of any payment or transfer, he may by notice require that person to furnish him within such time, not being less than 30 days, as may be specified in the notice with such information relating to the payment or transfer as he may reasonably require for the purposes of section 214.
3
If the inspector has reason to believe that a payment or transfer has been made within five years after the making of an exempt distribution and that the payment or transfer is a chargeable payment by reason of the existence of any such scheme or arrangements as are mentioned in section 214(3), he may by notice require the person making the payment or transfer or, if that person is a company, any person controlling it to furnish him within such time, not being less than 30 days, as may be specified in the notice with—
a
a declaration in writing stating whether or not, according to information which that person has, or can reasonably obtain, any such scheme or arrangements exist or have existed;
b
such other information as the inspector may reasonably require for the purposes of section 214 and that person has or can reasonably obtain.
4
Any recipient of a chargeable payment and any person on whose behalf such a payment is received shall, if so required by the inspector, state whether the payment received by him or on his behalf is received on behalf of any person other than himself and, if so, the name and address of that person.
218 Interpretation of sections 213 to 217.
M251
In sections 213 to 217—
“chargeable payment” has the meaning given by section 214(2);
“control” shall be construed in accordance with section 416(2) to (6);
“distributing company” has the meaning given by section 213(3);
“exempt distribution” has the meaning given by section 213(2);
“group”, except in section 213(11)(c), means a company which has one or more 75 per cent. subsidiaries together with that or those subsidiaries;
“holding company” means a company whose business (disregarding any trade carried on by it) consists wholly or mainly of the holding of shares or securities of one or more companies which are its 75 per cent. subsidiaries;
“member”, where the reference is to a member of a company, does not, except in section 214(2)(a), include a person who is a member otherwise than by virtue of holding shares forming part of the company’s ordinary share capital;
“relevant company” has the meaning given by section 213(3);
“shares” includes stock;
“trade”, except in subsection (3) below, does not include dealing in shares, securities, land, trades or commodity futures and “trading activities” shall be construed accordingly;
“trading company” means a company whose business consists wholly or mainly of the carrying on of a trade or trades;
“trading group” means a group the business of whose members, taken together, consists wholly or mainly in the carrying on of a trade or trades; and
“unquoted company” means a company which does not satisfy the condition that its shares or some class thereof (disregarding debenture or loan stock, preferred shares or preferred stock) are listed in the Official List of the Stock Exchange and are dealt in on the Stock Exchange regularly or from time to time, so however that this definition does not apply to a company under the control of (and only of) one or more companies to which this definition does not apply.
2
In determining for the purposes of section 213(3) to (9) whether a company whose shares are transferred by the distributing company is a 75 per cent. subsidiary of the distributing company there shall be disregarded any share capital of the first-mentioned company which is owned indirectly by the distributing company.
3
In determining for the purposes of sections 213 to 217 whether one company is a 75 per cent. subsidiary of another, the other company shall be treated as not being the owner of—
a
any share capital which it owns directly in a body corporate if a profit on a sale of the shares would be treated as a trading receipt of its trade; or
b
any share capital which it owns indirectly and which is owned directly by a body corporate for which a profit on the sale of the shares would be a trading receipt.
4
Section 839 applies for the purposes of sections 213 to 217.
Stock dividends
230 Stock dividends: distributions.
M51Any share capital to which section 249 applies and which is issued by a company F105. . . F106in a case where section 410(2), (3) or (4) of ITTOIA 2005 applies—
a
shall, notwithstanding section 209(2)(c), not constitute a distribution within the meaning of section 209(2); and
b
for purposes of sections 210 and 211 shall not be treated as issued “as paid up otherwise than by the receipt of new consideration”.
F5Industrial and provident society dividends etc
S. 230A and preceding cross-heading inserted (1.4.2009 with effect in accordance with s. 1329(1) of the amending Act) by Corporation Tax Act 2009 (c. 4), Sch. 1 para. 100 (with Sch. 2 Pts. 1, 2)
230ADividend or bonus granted by industrial and provident society
1
This section applies if—
a
a dividend or bonus is granted by a registered industrial and provident society, and
b
section 132 (deduction for dividends etc granted by industrial and provident societies) of CTA 2009 allows the sum representing the dividend or bonus to be deducted in calculating the profits of a trade.
2
The dividend, or the bonus, is not treated as a distribution for the purposes of the Corporation Tax Acts.
CHAPTER IV TAX CREDITS
C13C17C19C20231 Tax credits for certain recipients of qualifying distributions.
M52C14C15C161
Subject to F112sections 231AA and 231AB of this ActF113and section 219(4B) of the Finance Act 1994,F114for corporation tax purposes where a company resident in the United Kingdom makes a qualifying distribution and the person receiving the distribution is another such company F115. . . , the recipient of the distribution shall be entitled to a tax credit equal to such proportion of the amount or value of the distribution as corresponds to F108the tax credit fraction in force when the distribution is made.
F1091A
The tax credit fraction is one-ninth.
2
F110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
F116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3AA
F116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3A
F111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3B
F111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3C
F111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3D
F111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C184
Where a distribution mentioned in subsection (1) above is, or falls to be treated as, or under any provision of the Tax Acts is deemed to be, the income of a person other than the recipient, that person shall be treated for the purposes of this section as receiving the distribution (and accordingly the question whether F117that person is entitled to a tax credit in respect of it shall be determined by reference to where F117that person, and not the actual recipient, is resident);and where any such distribution is income of a United Kingdom trust the trustees shall be entitled to a tax credit in respect of it if no other person falls to be treated for the purposes of this section as receiving the distributionF107.
5
In subsection (4)above “United Kingdom trust” means a trust administered under the law of any part of the United Kingdom, not being a trust the general administration of which is ordinarily carried on outside the United Kingdom and the trustees, or a majority of the trustees, of which are resident or ordinarily resident outside the United KingdomF107.
231AF13 Restrictions on the use of tax credits by pension funds.
F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F14231AA No tax credit for borrower under stock lending arrangement or interim holder under repurchase agreement.
1
A person shall not be entitled to a tax credit under section 231 F126. . . in respect of a qualifying distribution if—
a
he is the borrower under a stock lending arrangement or F128the lender under a creditor repo or creditor quasi-repo;
b
the qualifying distribution is, or is a payment representative of, a distribution in respect of securities to which the arrangement F129or repo in question relates; and
c
a manufactured dividend representative of that distribution is paid by that person in respect of securities to which the arrangement F129or repo in question relates.
F1251A
F127. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
In this section “stock lending arrangement” has the same meaning as in section 263B of the 1992 Act and, in relation to any such arrangement, any reference to the borrower, or the securities to which the arrangement relates, shall be construed accordingly.
F1303
In this section “creditor repo” and “creditor quasi-repo” have the meaning given by Schedule 13 to the Finance Act 2007.
4
For the purposes of this section “manufactured dividend” has the same meaning as in paragraph 2 of Schedule 23A (and any reference to a manufactured dividend being paid accordingly includes a reference to a payment falling by virtue of section 736B(2) F131. . . to be treated for the purposes of Schedule 23A as if it were made).
F1325
For the purposes of this section a person is taken to have paid a manufactured dividend representative of a distribution in respect of securities to which a creditor repo relates if (as a result of paragraph 13(1) of Schedule 13 to the Finance Act 2007) the person is treated for the purposes of Chapter 9 of Part 15 of ITA 2007 as making a payment which is representative of the income payable on the securities.
F15231AB No tax credit for original owner under repurchase agreement in respect of certain manufactured dividends.
1
A person shall not be entitled to a tax credit under section 231 F134. . . in respect of a qualifying distribution if—
F136a
the person is the borrower under a debtor repo or debtor quasi-repo;
b
the qualifying distribution is a manufactured dividend paid to the borrower in consequence of that repo; and
c
the arrangement or arrangements in relation to that repo are not such that the actual dividend which the manufactured dividend represents is receivable otherwise than by the borrower under that repo.
F1331A
F135. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1372
In this section “debtor repo” and “debtor quasi-repo” have the meaning given by Schedule 13 to the Finance Act 2007.
3
Subsection (4) of section 231AA applies for the purposes of this section as it applies for the purposes of that section.
F16231B Consequences of certain arrangements to pass on the value of a tax credit.
1
This section applies in any case where—
a
a person (“A”) is entitled to a tax credit in respect of a qualifying distribution;
b
arrangements subsist such that another person (“B”) obtains, whether directly or indirectly, a payment representing any of the value of the tax credit;
c
the arrangements (whether or not made directly between A and B) were entered into for an unallowable purpose; and
d
the condition in subsection (2) below is satisfied.
2
The condition is that if B had been the person entitled to the tax credit and the qualifying distribution to which it relates, and had received the distribution when it was made, then—
a
B would not have been entitled to obtain any payment under section 231(2) or (3) in respect of the tax credit; and
b
if B is a company, B could not have used the income consisting of the distribution to frank a distribution actually made in the accounting period in which it would have received the distribution to which the tax credit relates.
3
This section does not apply if and to the extent that any other provision of the Tax Acts has the effect of cancelling or reducing the tax advantage which would otherwise be obtained by virtue of the arrangements.
4
Where this section applies—
a
no claim shall be made under section 231(2) for payment of the amount of the tax credit;
b
c
the income consisting of the distribution in respect of which A is entitled to the tax credit shall not be regarded for the purposes of section 241 as franked investment income; and
d
no claim shall be made under section 35 of the Finance (No. 2) Act 1997 (transitional relief) for payment of an amount determined by reference to that distribution.
5
For the purposes of this section, the question whether any arrangements were entered into for an “unallowable purpose” shall be determined in accordance with subsections (6) and (7) below.
6
Arrangements are entered into for an unallowable purpose if the purposes for which at least one person is a party to the arrangements include a purpose which is not amongst the business or other commercial purposes of that person.
7
Where one of the purposes for which a person enters into any arrangements is the purpose of securing that that person or another obtains a tax advantage, that purpose shall be regarded as a business or other commercial purpose of the person only if it is neither the main purpose, nor one of the main purposes, for which the person enters into the arrangements.
8
Any reference in this section to a person obtaining a tax advantage includes a reference to a person obtaining a payment representing any of the value of a tax credit in circumstances where, had the person obtaining the payment been entitled to the tax credit and the qualifying distribution to which it relates, that person—
a
would not have been entitled to obtain any payment under section 231(2) or (3) in respect of the tax credit; and
b
if that person is a company, could not have used the income consisting of the distribution to frank a distribution actually made in the accounting period in which it would have received the distribution to which the tax credit relates.
9
If an amount representing any of the value of a tax credit to which a person is entitled is applied at the direction of, or otherwise in favour of, some other person (whether by way of set off or otherwise), the case shall be treated for the purposes of this section as one where that other person obtains a payment representing any of the value of the tax credit.
10
In determining for the purposes of subsections (2)(b) and (8)(b) b above whether a company could have used the income consisting of the distribution in question to frank a distribution of the company, the company shall be taken to use its actual franked investment income to frank distributions before using the income consisting of the distribution in question.
11
References in this section to using franked investment income to frank a distribution of a company have the same meaning as in Chapter V of Part VI.
12
In this section—
“arrangements” means arrangements of any kind, whether in writing or not (and includes a series of arrangements, whether or not between the same parties);
“business or other commercial purposes” includes the efficient management of investments;
“franked investment income” has the same meaning as in Chapter V of Part VI and references to income consisting of a distribution shall be construed accordingly;
F124“tax advantage” has the meaning given by section 840ZA
232 Tax credits for non-U.K. residents.
F7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
233 Taxation of certain recipients of distributions and in respect of non-qualifying distributions.
F8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C21234 Information relating to distributions.
1
M53Without prejudice to F118section 234A. . . , a company which makes a qualifying distribution shall, if the recipient so requests in writing, furnish to him a statement in writing showing the amount or value of the distribution and (whether or not the recipient is a person entitled to a tax credit in respect of the distribution) the amount of the tax credit to which a recipient who is such a person is entitled in respect of that distribution.
2
The duty imposed by subsection (1) above shall be enforceable at the suit or instance of the person requesting the information.
F1193
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1194
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
M54Where a company makes a distribution which is not a qualifying distribution it shall make a return to the inspector—
a
within 14 days from the end of the accounting period in which the distribution is made; or
b
if the distribution is made on a date not falling in an accounting period, within 14 days from that date.
6
A return under subsection (5) above shall contain—
a
particulars of the transaction giving rise to the distribution; and
b
the name and address of the person, or each of the persons, receiving the distribution, and the amount or value of the distribution received by him or by each of them.
7
Where it is not in the circumstances apparent whether a transaction gives rise to a distribution in respect of which a return is required to be made under subsection (5) above, the company shall—
a
within the time within which such a return would be required to be made if the transaction did give rise to such a distribution, make a return to the inspector containing particulars of the transaction in question; and
b
if required by a notice served on the company by the inspector, furnish him within the time specified in the notice with such further information in relation to the transaction as he may reasonably require.
8
If it appears to the inspector that particulars of any transaction ought to have been and have not been included in a return under subsection (5) or (7) above, he may by a notice served on the company require the company to furnish him within the time specified in the notice with such information relating thereto as he may reasonably require.
9
Any power which the inspector may exercise under F120paragraphs 2 to 4 of Schedule 12 to the Finance Act 1989 for the purposes of the relevant provisions (as defined in paragraph 1 of that Schedule) may be exercised by him for the purposes of subsections (5) to (8) above.
C22C23234AF9 Information relating to distributions: further provisions.
1
This section applies where dividend or interest is distributed by a company which is—
a
a company within the meaning of the Companies Act 1985 or the Companies (Northern Ireland) Order 1986, or
b
a company created by letters patent or by or in pursuance of an Act.
2
If the company makes a payment of dividend or interest to any person, and subsection (3) below does not apply, within a reasonable period the company shall send an appropriate statement to that person.
3
If the company makes a payment of dividend or interest into a bank or building society account held by any person, within a reasonable period the company shall send an appropriate statement to either—
a
the bank or building society concerned, or
b
the person holding the account.
C24C254
In a case where—
a
a statement is received by a person under subsection (2) or (3)(b) above,
b
the whole or part of the sum concerned is paid to or on behalf of the person as nominee for another person, and
c
the nominee makes a payment of the sum or part to the other person and subsection (5) below does not apply,
within a reasonable period the nominee shall send an appropriate statement to that person.
5
In a case where—
a
a statement is received by a person under subsection (2) or (3)(b) above,
b
the whole or part of the sum concerned is paid to or on behalf of the person as nominee for another person, and
c
the nominee makes a payment of the sum or part into a bank or building society account held by the other person,
within a reasonable period the nominee shall send an appropriate statement to either the bank or building society concerned or the other person.
6
In the case of a payment of interest which is not a qualifying distribution or part of a qualifying distribution, references in this section to an appropriate statement are to a written statement showing—
a
the gross amount which, after deduction of the income tax appropriate to the interest, corresponds to the net amount actually paid,
b
the rate and the amount of income tax appropriate to such gross amount,
c
the net amount actually paid, and
d
the date of the payment.
7
In the case of a payment of dividend or interest which is a qualifying distribution or part of a qualifying distribution, references in this section to an appropriate statement are to a written statement showing—
a
the amount of the dividend or interest paid,
b
the date of the payment, and
c
the amount of the tax credit to which a person is entitled in respect of the dividend or interest, or to which a person would be so entitled if he had a right to a tax credit in respect of the dividend or interest.
8
In this section “send” means send by post.
F1218A
In this section “bank” has the meaning given by section 840A.
9
If a person fails to comply with subsection (2), (3), (4) or (5) above, the person shall incur a penalty of £60 in respect of each offence, except that the aggregate amount of any penalties imposed under this subsection on a person in respect of offences connected with any one distribution of dividends or interest shall not exceed £600.
10
The Board may by regulations provide that where a person is under a duty to comply with subsection (2), (3), (4) or (5) above, the person shall be taken to comply with the subsection if the person either—
a
acts in accordance with the subsection concerned, or
b
acts in accordance with rules contained in the regulations;
and subsection (9) above shall be construed accordingly.
11
Regulations under subsection (10) above may make different provision for different circumstances.
F10235 Distributions of exempt funds etc.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F11236 Provisions supplementary to section 235.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F12237 Disallowance of reliefs in respect of bonus issues.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CHAPTER V ADVANCE CORPORATION TAX AND FRANKED INVESTMENT INCOME
238 Interpretation of terms and collection of ACT.
F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
239 Set-off of ACT against liability to corporation tax.
F18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
240 Set-off of company’s surplus ACT against subsidiary’s liability to corporation tax.
F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
241 Calculation of ACT where company receives franked investment income.
F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
242 Set-off of losses etc. against surplus of franked investment income.
F21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
243 Set-off of loss brought forward, or terminal loss.
F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
244 Further provisions relating to claims under section 242 or 243.
F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
245 Calculation etc. of ACT on change of ownership of company.
F24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
245AF25 Restriction on application of section 240 in certain circumstances.
F26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
245B Restriction on set-off where asset transferred after change in ownership of company.
F27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246 Charge of ACT at previous rate until new rate fixed, and changes of rate.
F28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F62F53Chapter VA Foreign Income Dividends
Pt. 6 Ch. 5A (ss. 246A-246Y) inserted (3.5.1994) by Finance Act 1994 (c. 9), Sch. 16 para. 1
Ss. 246A-246Y (Pt. 6 Ch. 5A) repealed (with effect in accordance with Sch. 6 para. 3(2)-(4) of the repealing Act) by Finance (No. 2) Act 1997 (c. 58), Sch. 6 para. 3(1), Sch. 8 Pt. 2(11), Note
Election by company paying dividend
246A Election by company paying dividend.
F29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246B Procedure for making election.
F30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Recipient of foreign income dividend
246C No tax credit for recipient.
F31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246D Individuals etc.
F32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Companies: payments and receipts
246E Foreign income dividend not franked payment.
F33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246F Calculation of ACT where company receives foreign income dividend.
F34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246G Information relating to foreign income dividends.
F35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246H Power of inspector to require information.
F36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Foreign source profit and distributable foreign profit
246I Foreign source profit and distributable foreign profit.
F37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Matching of dividend with distributable foreign profit
246J Matching of dividend with distributable foreign profit.
F38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246K Matching: subsidiaries.
F39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246L Requirement as to subsidiaries.
F40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246M Matching: further provisions.
F41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Repayment or set-off of advance corporation tax
246N ACT to be repaid or set off against corporation tax liability.
F42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246P Notional foreign source advance corporation tax.
F43. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246Q Repayment or set-off: supplementary.
F44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246R Supplementary claims.
F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
International headquarters companies
246S International headquarters companies.
F46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246T Liability to pay ACT displaced.
F47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246U Settlement of liability by IHC as to ACT.
F48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246V Settlement of liability by non-IHC as to ACT.
F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
246W Payments and repayments where further matching takes place.
F50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Adjustments
246X Adjustments where profits or foreign tax altered.
F51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Application of this Chapter
246Y Application of this Chapter.
F52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CHAPTER VI MISCELLANEOUS AND SUPPLEMENTAL
Group income
247 Dividends etc. paid by one member of a group to another.
F54. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
248 Provisions supplementary to section 247.
F55. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Stock dividends
249 Stock dividends treated as income.
C261
M55Subject to F139subsections (8) and (9) below, this section applies (and accordingly section 230 above and section 410 of ITTOIA 2005 apply) to any of the following share capital, that is to say—
a
any share capital issued by a company resident in the United Kingdom in consequence of the exercise by any person of an option conferred on him to receive in respect of shares in the company (whether the last-mentioned shares were issued before or after the coming into force of this section) either a dividend in cash or additional share capital; and
b
any bonus share capital issued by a company so resident in respect of any shares in the company of a relevant class (whether the last-mentioned shares were issued before or after the coming into force of this section).
2
For the purposes of subsection (1)(b) above a class of shares is a relevant class if—
a
shares of that class carry the right to receive bonus share capital in the company of the same or a different class; and
b
that right is conferred by the terms on which shares of that class were originally issued or by those terms as subsequently extended or otherwise varied.
3
Where a company issues any share capital in a case in which two or more persons are entitled thereto, the following provisions of this sectionand paragraph 12(1)to (3)of Schedule 19 F138 shall have effect as if the company had issued to each of those persons separately a part of that share capital proportionate to his interest therein on the due date of issue.
4
F140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
F140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
F140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
F140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
Where, in a case within F141section 410(2), (3) or (4) of ITTOIA 2005, the share capital in question is issued in respect of shares in the company issued before 6th April 1975 which confer on the holder a right to convert or exchange them into or for shares of a different class, this section shall not apply to so much (if any) of any bonus share capital issued by the company after 5th April 1976 in connection with an exercise of that right as would have been issued if that right had been exercised so as to effect the conversion or exchange of the shares on the earliest possible date after 5th April 1975; F142. . . .
9
Where any bonus share capital falling within subsection (1)(b) above is after 5th April 1975 converted into or exchanged for shares in the company in question of a different class, then—
a
this section shall not apply to any shares in the company issued, in connection with the conversion or exchange, in consideration of the cancellation, extinguishment or acquisition by the company of that bonus share capital; but
b
section 230(a) and (b) shall apply to any shares in the company issued, in connection with the conversion or exchange, in consideration of the cancellation, extinguishment or acquisition by the company of so much of that bonus share capital as caused F143income to be treated as arising to an individual as a result of section 410(2) of ITTOIA 2005 on the due date of issue (or would have done so if the case had been one in which an individual was beneficially entitled to that share capital).
250 Returns.
1
M56A company shall for each of its accounting periods make, in accordance with this section, returns to the inspector of all share capital to which section 249 applies (“relevant share capital”) and which was issued by it in that period.
2
M57A return shall be made for—
a
each complete quarter falling within the accounting period, that is to say, each of the periods of three months ending with 31st March, 30th June, 30th September or 31st December which falls within that period;
b
each part of the accounting period which is not a complete quarter and ends on the first (or only), or begins immediately after the last (or only), of those dates which falls within the accounting period;
c
if none of those dates falls within the accounting period, the whole accounting period.
3
A return for any period for which a return is required to be made under this section (a “return period”) shall be made within 30 days from the end of that period.
4
M58No return need be made under this section by a company for any period in which it has issued no relevant share capital.
5
The return made by a company for any return period shall state—
a
the date on which any relevant share capital issued by it in the period was issued and, if different, the date on which the company was first required to issue it;
b
particulars of the terms on which any such share capital so issued by it was issued; and
c
what is, in relation to any such share capital so issued, F145the cash equivalent of the share capital in accordance with section 412 of ITTOIA 2005.
6
If it appears to the inspector that a company ought to have, but has not, made a return for any return period, he may (notwithstanding subsection (4) above) by notice require the company to make a return for that period within such time (not being less than 30 days) as may be specified in the notice; and a return required to be made under this subsection shall, if such be the case, state that no relevant share capital was issued in the period in question.
7
As regards any share capital included in a return made under this section by a company, the inspector may by notice require the company to furnish him within such time (not being less than 30 days) as may be specified in the notice with such further information relating thereto as he may reasonably require for the purposes of sections 230 and 249, this section and section 251 F144. . . F146of this Act or Chapter 5 of Part 4 of ITTOIA 2005.
251 Interpretation of sections 249 and 250.
M591
For the purposes of sections 249 and 250 —
a
“bonus share capital”, in relation to a company, means share capital issued by the company otherwise than wholly for new consideration or such part of any share capital so issued as is not properly referable to new consideration;
b
“due date of issue”, in relation to any share capital issued by a company, means the earliest date on which the company was required to issue that share capital;
C27c
an option to receive either a dividend in cash or additional share capital is conferred on a person not only where he is required to choose one or the other, but also where he is offered the one subject to a right, however expressed, to choose the other instead, and a person’s abandonment of, or failure to exercise, such a right is to be treated as an exercise of the option;
and in section 254 the definition of “security” (in subsection (1)) and subsections (5) and (11) shall not apply.
2
F147. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
F147. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
F147. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
F147. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
F147. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Supplemental
M60C28C29C30C31252 Rectification of excessive set-off etc. of ACT or tax credit.
1
If an inspector discovers that—
a
F148. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
any set-off or payment of tax credit,
ought not to have been made, or is or has become excessive, the inspector may make any such assessments as may in his judgment be required for recovering any tax that ought to have been paid or any payment of tax credit that ought not to have been made and generally for securing that the resulting liabilities to tax (including interest on unpaid tax) of the persons concerned are what they would have been if only such set-offs or payments had been made as ought to have been made.
P12
In any case where—
a
interest has been paid under section 826 on a payment of tax credit; and
b
interest ought not to have been paid on that payment, either at all or to any extent,
an assessment under this section may be made for recovering any interest that ought not to have been paid.
P13
Where—
a
an assessment is made under this section to recover tax credit paid to a company in respect of franked investment income received by the company in an accounting period; and
b
more than one payment of tax credit has been made in respect of that period,
any sum recovered shall as far as possible be treated as relating to a payment of tax credit made later rather than to a payment made earlier.
P14
Subsections (2) and (3) above shall have effect in relation to payments of tax credit claimed in respect of accounting periods ending after such day as may be appointed for the purpose of those subsections by order made by the Treasury, not being earlier than 31st March 1992.
C325
The Management Act shall apply to any assessment under this section for recovering a payment of tax credit or interest on such a payment as if it were an assessment to income tax for the year of assessment, or in the case of a company, corporation tax for the accounting period, in respect of which the payment was claimed, and as if that payment represented a loss of tax to the Crown; and any sum charged by any such assessment shall, subject to any appeal against the assessment, be due within 14 days after the issue of the notice of assessment.
253 Power to modify or replace section 234(5) to (9) and Schedule 13.
M611
The Board may by regulations—
a
modify, supplement or replace any of the provisions of subsections (5) to (9) of section 234 for the purpose of requiring companies resident in the United Kingdom to make returns and give information to the inspector in respect of distributions made by them, whether before or after the passing of this Act, which are not qualifying distributions;
b
F149. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
and references in this Act and in any other enactment to section 234(5) to (9) F150. . . shall be construed as including references to any such regulations.
2
F151. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
Regulations under this section may—
a
make different provision for different descriptions of companies and for different circumstances and may authorise the Board, where in their opinion there are special circumstances justifying it, to make special arrangements as respects F152. . . the repayment of income tax borne by a company or the payment to a company of amounts in respect of any tax credit to which it is entitled;
b
include such transitional and other supplemental provisions as appear to the Board to be expedient or necessary.
4
The Board shall not make any regulations under this section unless a draft of them has been laid before and approved by a resolution of the House of Commons.
254 Interpretation of Part VI.
1
M62In this Part, except where the context otherwise requires—
“new consideration” means, subject to subsections (5) and (6) below, consideration not provided directly or indirectly out of the assets of the company, and in particular does not include amounts retained by the company by way of capitalising a distribution;
“security” includes securities not creating or evidencing a charge on assets, and interest paid by a company on money advanced without the issue of a security for the advance, or other consideration given by a company for the use of money so advanced, shall be treated as if paid or given in respect of a security issued for the advance by the company;
“share” includes stock, and any other interest of a member in a company;
and in this section “a 90 per cent. group” means a company and all of its 90 per cent. subsidiaries.
2
M63In this Part, the expressions “in respect of shares in the company” and “in respect of securities of the company”, in relation to a company which is a member of a 90 per cent. group, mean respectively in respect of shares in that company or any other company in the group and in respect of securities of that company or any other company in the group.
3
Without prejudice to section 209(2)(b) as extended by subsection (2) above, in relation to a company which is a member of a 90 per cent. group, “distribution” includes anything distributed out of assets of the company (whether in cash or otherwise) in respect of shares in or securities of another company in the group.
4
Nothing in subsections (2) and (3) above shall require a company to be treated as making a distribution to any other company which is in the same group and is resident in the United Kingdom.
5
M64Where share capital has been issued at a premium representing new consideration, any part of that premium afterwards applied in paying up share capital shall be treated as new consideration also for that share capital, except in so far as the premium has been taken into account under section 211(5) so as to enable a distribution to be treated as a repayment of share capital.
6
M65Subject to subsection (7) below, no consideration derived from the value of any share capital or security of a company, or from voting or other rights in a company, shall be regarded for the purposes of this Part as new consideration received by the company unless the consideration consists of—
a
money or value received from the company as a qualifying distribution;
b
money received from the company as a payment which for those purposes constitutes a repayment of that share capital or of the principal secured by the security; or
c
the giving up of the right to the share capital or security on its cancellation, extinguishment or acquisition by the company.
7
No amount shall be regarded as new consideration by virtue of subsection (6)(b) or (c) above in so far as it exceeds any new consideration received by the company for the issue of the share capital or security in question or, in the case of share capital which constituted a qualifying distribution on issue, the nominal value of that share capital.
8
M66Where two or more companies enter into arrangements to make distributions to each other’s members, all parties concerned (however many) may for the purposes of this Part be treated as if anything done by any one of those companies had been done by any of the others.
9
M67A distribution shall be treated under this Part as made, or consideration as provided, out of assets of a company if the cost falls on the company.
10
M68References in this Part to issuing share capital as paid up apply also to the paying up of any issued share capital.
11
M69Where securities are issued at a price less than the amount repayable on them, and are not F153listed on a recognised stock exchange, the principal secured shall not be taken for the purposes of this Part to exceed the issue price, unless the securities are issued on terms reasonably comparable with the terms of issue of securities so F153listed.
12
M70For the purposes of this Part a thing is to be regarded as done in respect of a share if it is done to a person as being the holder of the share, or as having at a particular time been the holder, or is done in pursuance of a right granted or offer made in respect of a share; and anything done in respect of shares by reference to share holdings at a particular time is to be regarded as done to the then holders of the shares or the personal representatives of any share holder then dead.
This subsection shall apply in relation to securities as it applies in relation to shares.
255“Gross rate” and “gross amount” of distributions to include ACT.
F60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pt. 6 modified by Airports Act 1986 (c. 31), s. 77(3) (as substituted (with effect in accordance with s. 105(1) of the amending Act) by Finance Act 1996 (c. 8), Sch. 14 para. 3 (with Sch. 15))