Income and Corporation Taxes Act 1988

565 Conditions to be satisfied by companies. U.K.

(1) In the case of an application for the issue of a certificate under section 561 to a company (whether as a partner in a firm or otherwise), the following conditions are required to be satisfied by the company.

(2) M1 The company must be carrying on (whether or not in partnership) a business in the United Kingdom and that business must satisfy the conditions mentioned in section 562(2)(a) to (d).

[F1 [F2 (2A) The company must either—

(a) satisfy the Board, by such evidence as may be prescribed in regulations made by them, that the annual receipts test is satisfied; or

(b) satisfy the Board that the only persons with shares in the company are companies which are limited by shares and themselves excepted from section 559 by virtue of a certificate which is in force under section 561.

(2B) The annual receipts test is satisfied in relation to a company if the carrying on of its business is likely to involve the receipt, annually in the period to which the certificate would relate—

(a) of an aggregate amount by way of relevant payments which is not less than the amount obtained by multiplying the amount specified in regulations as the minimum turnover for the purposes of section 562(2A) by the number of persons who are relevant persons in relation to the company; or

(b) of an aggregate amount by way of construction contract payments which is not less than the amount specified for the purposes of this paragraph in regulations made by the Board.

(2BB) In subsection (2B) above “relevant payments” has the meaning given by section 562(2B).]

(2C) For the purposes of subsection (2B) above a person is a relevant person in relation to the company—

(a) where the company is a close company, if he is a director of the company (within [F3 the meaning given by section 67 of ITEPA 2003]) or a beneficial owner of shares in the company; and

(b) in any other case, if he is such a director of the company.]

[F4 (2D) In subsection (2B) above “construction contract payments” means payments under contracts relating to, or to the work of individuals participating in the carrying out of, any operations which—

(a) are of a description specified in subsection (2) of section 567; but

(b) are not of a description specified in subsection (3) of that section,

other than so much of the payments as represents the direct cost to the company of materials used or to be used in carrying out the operations in question.]

(3) The company must, subject to subsection (4) below, have complied with all obligations imposed on it by or under the Tax Acts or the Management Act in respect of periods ending within the qualifying period and with all requests to supply to an inspector accounts of, or other information about, the business of the company in respect of periods so ending.

(4) A company which has failed to comply with such an obligation or request as is referred to in subsection (3) above shall nevertheless be treated as satisfying this condition as regards that obligation or request if the Board are of the opinion that the failure is minor and technical and does not give reason to doubt that the conditions mentioned in subsection (8) below will be satisfied.

(5) M2 The company must, if any contribution has at any time during the qualifying period become due from the company under Part I of the M3 Social Security Act 1975 or Part I of the M4 Social Security (Northern Ireland) Act 1975 have paid the contribution when it became due.

(6) M5 The company must have complied with any obligations imposed on it by the following provisions of the M6 Companies Act 1985, in so far as those obligations fell to be complied with within the qualifying period, that is to say—

(a) [F5 sections 226, 241 and 242] (contents, laying and delivery of annual accounts);

(b )F6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) section 288(2) (return of directors and secretary and notification of changes therein);

(d) [F7 sections 363 to 365] (annual returns);

(e) section 691 (registration of constitutional documents and list of directors and secretary of oversea company);

(f) section 692 (notification of changes in constitution or directors or secretary of oversea company);

(g) section 693 (oversea company to state its name and country of incorporation);

(h) section 699 (obligations of companies incorporated in Channel Islands or Isle of Man);

(j) Chapter II of Part XXIII (accounts of oversea company).

(7) The company must have complied with any obligations imposed on it by the following provisions of the M7 Companies (Northern Ireland) Order 1986, in so far as those obligations fell to be complied with within the qualifying period, that is to say—

(a) Articles 235, 247 and 249 (annual accounts, documents included in annual accounts and laying and delivery of accounts);

(b) Article 295 (registered office and notification of changes therein);

(c) Article 296(2) (return of directors and secretary and notification of changes therein);

(d) [F8 Articles 371 to 373] (annual returns);

(e) Article 641 (registration of constitutional documents and list of directors and secretary of oversea company);

(f) Article 642 (notification of changes in constitution or directors or secretary of oversea company);

(g) Article 643 (oversea company to state its name and country of incorporation);

(h) Article 649 (accounts of oversea company).

(8) M8 There must be reason to expect that the company will, in respect of periods ending after the end of the qualifying period, comply with all such obligations as are referred to in subsections (2) to (7) above and with such requests as are referred to in subsection (3) above.

[F9 (8A) Subject to subsection (4) above, a company shall not be taken for the purposes of this section to have complied with any such obligation or request as is referred to in subsections (3) to (7) above if there has been a contravention of a requirement as to the time at which, or the period within which, the obligation or request was to be complied with.]

(9) M9 In this section “qualifying period” means the period of three years ending with the date of the company’s application for a certificate under section 561.

Textual Amendments

F1 S. 565(2A)-(2C) inserted (with effect in accordance with Sch. 27 para. 8(1) of the amending Act) by Finance Act 1995 (c. 4), Sch. 27 para. 7(1); S.I. 1998/2620, art. 3

F2 S. 565(2A)(2B)(2BB) substituted for s. 565(2A)(2B) (with effect in accordance with Sch. 8 para. 5 of the amending Act) by Finance Act 1998 (c. 36), Sch. 8 para. 4(1)

F3 Words in s. 565(2C)(a) substituted (6.4.2003 with effect in accordance with s. 723(1) of the amending Act) by Income Tax (Earnings and Pensions) Act 2003 (c. 1), Sch. 6 para. 60 (with Sch. 7)

F4 S. 565(2D) inserted (with effect in accordance with Sch. 8 para. 5 of the amending Act) by Finance Act 1998 (c. 36), Sch. 8 para. 4(2)

F5 Words in s. 565(6)(a) substituted (E.W.S.) (1.4.1990 with effect in accordance with S.I. 1990/355, arts. 6-9, Sch. 1) by Companies Act 1989 (c. 40), Sch. 10 para. 38(3); S.I. 1990/355, arts. 3, 8, Sch. 1

F6 S. 565(6)(b) repealed (1.10.1991) by Companies Act 1989 (c. 40, SIF 27), ss. 212, 213, Sch. 24; S.I. 1991/1996, art. 2(c)(iv)

F7 Words in s. 565(6)(d) substituted (E.W.S) (1.10.1990 with saving and transitional provisions in S.I. 1990/1707, arts. 4, 5) by Companies Act 1989 (c. 40), s. 139(5)

F8 Words in s. 565(7)(d) substituted (1.10.1991) by S.I. 1990/1504, art. 74(5); S.R. 1991/398, art. 2(a) (subject to the provisions set out in S.R. 1991/398, arts. 3, 4)

F9 S. 565(8A) inserted (with effect in accordance with Sch. 27 para. 8(1) of the amending Act) by Finance Act 1995 (c. 4), Sch. 27 para. 7(2); S.I. 1998/2620, art. 3

Modifications etc. (not altering text)

C1 Ss. 562-565 modified (retrospectively, with application in accordance with s. 53(3) of the modifying Act) by Finance Act 1999 (c. 16), s. 53(1)(2)

Marginal Citations

M1 Source-1975 (No.2) Sch.12 Pt.IV 1, 2(1), (2); 1980 Sch.8 7; 1982 Sch.8 15

M2 Source-1975 (No.2) Sch.12 Pt.IV 3

M3 1975 c. 14.

M4 1975 c. 15.

M5 Source-1975 (No.2) Sch.12 Pt.IV 6; 1987 Sch.15 8

M6 1985 c. 6

M7 S.I. 1986/1032 (N.I. 6).

M8 Source-1975 (No.2) Sch.12 Pt.IV 7

M9 Source-1975 (No.2) Sch.12 Pt.IV 2(3)