PART XVII TAX AVOIDANCE

CHAPTER VI MISCELLANEOUS

Other provisions

779 Sale and leaseback: limitation on tax reliefs.

M1(1)

If land or any estate or interest in land is transferred from one person to another and—

(a)

as a result of a lease of the land or any part of the land granted at that time or subsequently by the transferee to the transferor, or

(b)

as a result of any other transaction or series of transactions affecting the land or any estate or interest in the land,

the transferor, or any person who is associated with the transferor, becomes liable at the time of the transfer or subsequently to pay any rent under a lease of the land or any part of the land, this section shall apply to all rent due under the lease from the transferor, or from any person who is associated with the transferor.

(2)

If—

(a)

land or any estate or interest in land is transferred from one person to another, and

(b)

as a result of any transaction or series of transactions affecting the land or any estate or interest in the land, the transferor, or any person who is associated with the transferor, becomes liable at the time of the transfer or subsequently to make any payment (other than rent under a lease) for which any relevant tax relief is available, being a payment by way of rentcharge on the land or any part of the land or a payment in any other way connected with the land,

then this section shall apply to all such payments under the rentcharge or other transaction due from the transferor, or from any person who is associated with the transferor.

(3)

The references in subsections (1) and (2) above to the transfer of an estate or interest in land include references to—

(a)

the granting of a lease or any other transaction involving the creation of a new estate or interest in the land;

(b)

the transfer of the lessee’s interest under a lease by surrender or forfeiture of the lease; and

(c)

any transaction or series of transactions affecting land or an estate or interest in land, such that some person is the owner, or one of the owners, before and after the carrying out of the transaction or transactions, but another person becomes or ceases to become one of the owners;

and in relation to any such transaction or series of transactions any person who is an owner before the carrying out of the transaction or transactions, and is not the sole owner thereafter, shall be regarded for the purposes of this section as a transferor.

(4)

A deduction by way of any relevant tax relief, being a deduction in respect of rent or of any other payment to which this section applies, shall not exceed the commercial rent for the period for which the rent or other payment is made of the land in respect of which that payment is made.

(5)

If—

(a)

under subsection (4) above part of a payment which would otherwise be allowable as a deduction by way of any relevant tax relief is not so allowable, and

(b)

one or more subsequent payments are made by the transferor, or a person who is associated with the transferor, under the lease or other transaction,

that part of the first-mentioned payment may be carried forward and treated for the purposes of any such deduction by way of tax relief as if it were made at the time when the next of those subsequent payments was made, and so made for the period for which that subsequent payment was made.

(6)

For the purposes of subsection (4) above—

(a)

if more than one payment is made for the same period the payments shall be taken together;

(b)

if payments are made for periods which overlap, the payments shall be apportioned, and the apportioned payments which belong to the common part of the overlapping periods shall be taken together;

(c)

the preceding references to payments include references to parts of payments which under subsection (5) above are treated as if made at a time subsequent to that at which they were made, and to the extent that a part of a payment so carried forward under that subsection is not so allowable as a deduction by way of tax relief, it may again be carried forward under that subsection;

(d)

so much of any payment as is in respect of services or the use of assets or rates usually borne by the tenant shall be excluded, and in determining the amount to be so excluded provisions in any lease or agreement fixing the payments or parts of payments which are in respect of services or the use of assets may be overridden.

(7)

A payment made for a period all of which falls more than one year after the payment is made shall be treated for the purposes of this section as made for that period of one year beginning with the date on which the payment was made, and a payment for a period part of which falls after the end of that year shall be treated for those purposes as if a corresponding part of the payment was made for that year (and no part for any later period).

(8)

For the purposes of making a comparison under subsection (4) above between a payment consisting of rent under a lease (“the actual lease”), or such payments taken together, and the commercial rent of the land, “commercial rent” shall mean the rent which might be expected to be paid under a lease of the land negotiated in the open market at the time when the actual lease was created, being a lease which is of the same duration as the actual lease, which is, as respects liability for maintenance and repairs, subject to the terms and conditions of the actual lease and which provides for rent payable at uniform intervals and—

(a)

at a uniform rate, or

(b)

if the rent payable under the actual lease is rent at a progressive rate (and such that the amount of rent payable for any year is never less than the amount payable for any previous year), a rent which progresses by gradations proportionate to those provided by the actual lease.

(9)

For the purpose of making a comparison under subsection (4) above between a payment which does not consist of rent under a lease (or such a payment taken together with other payments) and the commercial rent of the land, “commercial rent” shall mean the rent which might be expected to be paid under a tenant’s repairing lease negotiated in the open market at the time when the transaction was effected under which the payment or payments became due, being—

(a)

where the period over which payments are to be made under that transaction is not less than 200 years, or the obligation to make such payments is perpetual, a lease for 200 years; and

(b)

where that period is less than 200 years, a lease which is of the same duration as that period.

F1(10)

In this section references to rent under a lease include references to expenses which the tenant under the lease is treated as incurring in respect of the land subject to the lease under—

(a)

sections 61 to 67 or 292 to 297 of ITTOIA 2005, or

(b)

sections 63 to 67 or 232 to 234 of CTA 2009,

and such expenses are treated for the purposes of this section as having been paid as soon as they have been incurred.

(11)

For the purposes of this section the following persons shall be deemed to be associated with one another, that is—

(a)

the transferor in any such transaction as is described in subsection (1) or (2) above, and the transferor in another such transaction, if those two persons are acting in concert, or if the two transactions are in any way reciprocal, and any person who is an associate of either of those associated transferors;

(b)

any two or more bodies corporate participating in, or incorporated for the purposes of, a scheme for the reconstruction of any body or bodies corporate or for the amalgamation of any two or more bodies corporate;

(c)

any persons who are associates as defined in section 783(10).

(12)

In this section—

“asset” means any description of property or rights other than land or an interest in land;

“lease” includes an underlease, sublease or any tenancy or licence, and any agreement for a lease, underlease, sublease or tenancy or licence and, in the case of land outside the United Kingdom, any interest corresponding to a lease as so defined; and in relation to such land, expressions in this section relating to interests in land and their disposition shall be construed accordingly;

“rent” includes any payment made under a lease; and

“tenant’s repairing lease” means a lease where the lessee is under an obligation to maintain and repair the whole, or substantially the whole, of the premises comprised in the lease.

(13)

For the purposes of this section the following are deductions by way of relevant tax relief, that is to say—

(a)

F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(aa)

a deduction in calculating the profits of a UK property business;

(b)

a deduction in computing F4profits or losses of a trade, profession or vocation for the purposes of tax;

(c)

a deduction in computing F5profits or gains chargeable to corporation tax under or by virtue of any provision to which section 834A (miscellaneous charges) applies, or in computing any loss for which relief is allowable under section F6. . . 396;

F7(ca)

a deduction in computing profits or other income or gains chargeable to income tax under or by virtue of any provision to which F8section 1016 of ITA 2007 applies, or in computing any loss for which relief is allowable under F9section 152 of ITA 2007;

(d)

F10a deduction under section F11. . . 76;

F12(da)

a deduction under section 1219 of CTA 2009 (expenses of management of a company's investment business);

(e)

F13a deduction from earnings allowed under section 336 of ITEPA 2003 (expenses) or allowable in computing losses in an employment for tax purposes;

(f)

a deduction allowable for tax purposes in computing profits or gains or losses arising from woodlands.

(14)

This section shall not apply if the transfer described in subsection (1) or (2) above was on or before 14th April 1964.