PART XI CLOSE COMPANIES

CHAPTER I INTERPRETATIVE PROVISIONS

417 Meaning of “participator”, “associate”, “director” and “loan creditor”.

C1C21

M1For the purposes of this Part, a “participator” is, in relation to any company, a person having a share or interest in the capital or income of the company, and, without prejudice to the generality of the preceding words, includes—

a

any person who possesses, or is entitled to acquire, share capital or voting rights in the company;

b

any loan creditor of the company;

c

any person who possesses, or is entitled to acquire, a right to receive or participate in distributions of the company (construing “distributions” without regard to section 418) or any amounts payable by the company (in cash or in kind) to loan creditors by way of premium on redemption; and

d

any person who is entitled to secure that income or assets (whether present or future) of the company will be applied directly or indirectly for his benefit.

In this subsection references to being entitled to do anything apply where a person is presently entitled to do it at a future date, or will at a future date be entitled to do it.

2

The provisions of subsection (1) above are without prejudice to any particular provision of this Part requiring a participator in one company to be treated as being also a participator in another company.

C3C43

M6 “associate” means, in relation to a participator—

a

any relative or partner of the participator;

b

the trustee or trustees of any settlement in relation to which the participator is, or any relative of his (living or dead) is or was, a settlor (“settlement” and “settlor” having here the same meaning as in F1Chapter IA of Part XV (see section 660G(1) and (2))); and

c

where the participator is interested in any shares or obligations of the company which are subject to any trust, or are part of the estate of a deceased person—

i

the trustee or trustees of the settlement concerned or, as the case may be, the personal representatives of the deceased; and

ii

if the participator is a company, any other company interested in those shares or obligations;

and has a corresponding meaning in relation to a person other than a participator.

4

M2In subsection (3) above “relative” means husband or wife, parent or remoter forebear, child or remoter issue, or brother or sister.

C55

For the purposes of this Part “director” includes any person occupying the position of director by whatever name called, any person in accordance with whose directions or instructions the directors are accustomed to act, and any person who—

a

is a manager of the company or otherwise concerned in the management of the company’s trade or business, and

b

is, either on his own or with one or more associates, the beneficial owner of, or able, directly or through the medium of other companies or by any other indirect means, to control 20 per cent. or over of the ordinary share capital of the company.

6

In subsection (5)(b) above the expression “either on his own or with one or more associates” requires a person to be treated as owning or, as the case may be, controlling what any associate owns or controls, even if he does not own or control share capital on his own.

C67

M3Subject to subsection (9) below, for the purposes of this Part “loan creditor”, in relation to a company, means a creditor in respect of any debt incurred by the company—

a

for any money borrowed or capital assets acquired by the company; or

b

for any right to receive income created in favour of the company; or

c

for consideration the value of which to the company was (at the time when the debt was incurred) substantially less than the amount of the debt (including any premium thereon);

or in respect of any redeemable loan capital issued by the company.

8

M4Subject to subsection (9) below, a person who is not the creditor in respect of any debt or loan capital to which subsection (7) above applies but nevertheless has a beneficial interest therein shall, to the extent of that interest, be treated for the purposes of this Part as a loan creditor in respect of that debt or loan capital.

9

M5A person carrying on a business of banking shall not be deemed to be a loan creditor in respect of any loan capital or debt issued or incurred by the company for money lent by him to the company in the ordinary course of that business.