38 Rules for ascertaining duration of leases.U.K.
(1)M1In ascertaining the duration of a lease for the purposes of sections 34 to 36—
(a)in any case where—
(i)any of the terms of the lease (whether relating to forfeiture or any other matter) or any other circumstances render it unlikely that the lease will continue beyond a date falling before the expiry of the term of the lease, and
(ii)the premium was not substantially greater than it would have been, on the assumptions required by subsections (3) and (4) below, had the term been one expiring on that date,
the lease shall not be treated as having been granted for a term longer than one ending on that date;
(b)where the terms of the lease include provision for the extension of the lease beyond a given date by notice given by the tenant, account may be taken of any circumstances making it likely that the lease will be so extended; and
(c)where the tenant or a person connected with him (within the meaning of section 839) is or may become entitled to a further lease or the grant of a further lease (whenever commencing) of the same premises or of premises including the whole or part of the same premises, the term of the lease may be treated as not expiring before the term of the further lease.
(2)M2Subsection (1) above shall be applied by reference to the facts which were known or ascertainable at the time of the grant of the lease, or in relation to tax under section 34(5), at a time when the contract providing for the variation or waiver is entered into.
(3)It shall be assumed in applying subsection (1) above that all parties concerned, whatever their relationship, act as they would act if they were at arm’s length.
(4)In any case where—
(a)by the lease or in connection with the granting of it benefits were conferred other than—
(i)vacant possession and beneficial occupation of the premises, or
(ii)the right to receive rent at a reasonable commercial rate in respect of the premises, or
(b)payments were made which would not be expected to be made by parties acting at arm’s length if no other benefits had been so conferred,
it shall also be assumed, unless it [F1can be] shown that the benefits were not conferred or the payments made for the purpose of securing a tax advantage in the application of this Part, that the benefits would not have been conferred nor the payments made had the lease been for a term ending on the date mentioned in subsection (1)(a) above.
(5)M3Where an inspector has reason to believe that a person has information relevant to the ascertainment of the duration of a lease in accordance with subsections (1) to (4) above, the inspector may by notice require him to give, within a time specified in the notice, such information on the matters so specified as is in his possession; but a solicitor shall not be so required to do more, in relation to anything done by him on behalf of a client, than state that he is or was so acting and give the name and address of his client.
(6)M4In this section in relation to Scotland, the expression “term”, where referring to the duration of a lease, means period.
(7)M5This section has effect subject to paragraphs 2 and 3 of Schedule 30.
Textual Amendments
F1Words in s. 38(4) substituted (with effect as mentioned in s. 134(2) of the amending Act) by Finance Act 1996 (c. 8), s. 134(1), Sch. 20 para. 2
Modifications etc. (not altering text)
C1S. 38(1)-(4)(6) applied (with effect in accordance with s. 579 of the affecting Act) by Capital Allowances Act 2001 (c. 2), s. 291(3)
C2S. 38(1)(a)(4) excluded (16.7.1992) by Finance (No. 2) Act 1992 (c. 48), s. 77, Sch. 17 paras. 5(4)(6), 6(1), 7.
C3 See 1990(C) s.11(4)—rules applied in connection with leases for industrial buildings and structures.
Marginal Citations
M1SOURCE-1970 S. 84(1)(b)–(d); 1972 s. 81(2)(a), (b)
M2SOURCE-1970 s. 84(2); 1972 s. 81(2)(c)
M3SOURCE-1970 s. 84(3A); 1972 s. 81(5)
M4SOURCE-1970 s. 84(3); 1972 s. 81(2)(d)
M5SOURCE-1970 s. 84(4)