Part VIII Supplemental
F1279ADeferred unascertainable consideration: election for treatment of loss
(1)
Where—
(a)
a person (“the taxpayer”) makes a disposal of a right to which this section applies (see subsection (2) below),
(b)
on that disposal an allowable loss (“the relevant loss”) would, apart from section 279C, accrue to him in any year (“the year of the loss”), and
(c)
the year of the loss is a year in which the taxpayer is within the charge to capital gains tax (see section 279B(1)),
the taxpayer may make an election under this section for the relevant loss to be treated as accruing in an earlier year in accordance with section 279C if condition 1 in subsection (3) below and condition 2 in subsection (5) below are satisfied.
(2)
This section applies to a right if each of the following conditions is satisfied—
(a)
the right was, in whole or in part, acquired by the taxpayer as the whole or part of the consideration for a disposal (the “original disposal”) by him of another asset (the “original asset”),
(b)
the original disposal was made in a year (“the year of the original disposal”) earlier than the year in which the disposal mentioned in subsection (1)(a) above is made (“the year of the right’s disposal”),
(c)
where the right was acquired by the taxpayer as the whole or part of the consideration for two or more disposals (each of which is accordingly an “original disposal”), the condition in paragraph (b) above is satisfied with respect to each of those disposals (the “original disposals”),
(d)
on the taxpayer’s acquisition of the right, there was no corresponding disposal of it,
(e)
the right is a right to unascertainable consideration (see section 279B(2) to (6)).
(3)
Condition 1 for making an election in relation to the relevant loss is that a chargeable gain accrued to the taxpayer on any one or more of the following events—
(a)
the original disposal,
(b)
an earlier disposal of the original asset by the taxpayer in the year of the original disposal,
(c)
a later disposal of the original asset by the taxpayer in a year earlier than the year of the right’s disposal,
or would have so accrued but for paragraph 2(2)(a) of Schedule 5B or 5C (postponement of original gain). This subsection is subject to subsection (4) below.
(4)
If the right to which this section applies was acquired by the taxpayer as the whole or part of the consideration for two or more original disposals (including cases where there are two or more original assets (the “original assets”))—
(a)
any reference in subsection (3) above to the original disposal is a reference to any of the original disposals,
(b)
any reference in that subsection to the original asset is a reference to the asset which is the original asset in relation to that original disposal, and
(c)
any reference in that subsection to the year of the original disposal shall be construed accordingly.
(5)
Condition 2 for making an election in relation to the relevant loss is that there is a year (an “eligible year”)—
(a)
which is earlier than the year of the loss but not earlier than the year 1992-93,
(b)
in which a chargeable gain falling within subsection (3) above or subsection (6) below accrued to the taxpayer, and
(c)
for which, immediately before the election, there remains a relevant amount on which capital gains tax is chargeable (see subsection (7) below).
(6)
A chargeable gain falling within this subsection accrues to the taxpayer in a year if—
(a)
in that year a chargeable gain (the “revived gain”) is treated as accruing to the taxpayer in accordance with paragraphs 4 and 5 of Schedule 5B or 5C (chargeable gain accruing to person on chargeable event), and
(b)
the gain which, in determining the amount of the revived gain in accordance with those paragraphs, is the original gain consists of or represents the whole or some part of a gain that would have accrued as mentioned in subsection (3) above but for paragraph 2(2)(a) of Schedule 5B or 5C.
(7)
For the purposes of subsection (5)(c) above, a year is one for which, immediately before an election, there remains a relevant amount on which capital gains tax is chargeable if, immediately before the making of that election, there remains an amount in respect of which the taxpayer is chargeable to capital gains tax for the year—
(a)
after taking account of any previous elections made by the taxpayer under this section,
(b)
after excluding any amounts that fall to be brought into account for that year under section 2(4)(b) by virtue of section 2(5)(b), and
(c)
on the assumption that no part of the relevant loss (or of any other loss in respect of which an election under this section may be, but has not been, made) falls to be deducted in consequence of an election under this section from the chargeable gains accruing to the taxpayer in that year.
(8)
In this section “year” means year of assessment.
(9)
This section and sections 279B to 279D are to be construed as one.