808A Interest: special relationship.

1

Subsection (2) below applies where any arrangements having effect by virtue of section 788—

a

make provision, whether for relief or otherwise, in relation to interest (as defined in the arrangements), and

b

make provision (the special relationship provision) that where owing to a special relationship the amount of the interest paid exceeds the amount which would have been paid in the absence of the relationship, the provision mentioned in paragraph (a) above shall apply only to the last-mentioned amount.

2

The special relationship provision shall be construed as requiring account to be taken of all factors, including—

a

the question whether the loan would have been made at all in the absence of the relationship,

b

the amount which the loan would have been in the absence of the relationship, and

c

the rate of interest and other terms which would have been agreed in the absence of the relationship.

3

The special relationship provision shall be construed as requiring the taxpayer to show that there is no special relationship or (as the case may be) to show the amount of interest which would have been paid in the absence of the special relationship.

4

In a case where—

a

a company makes a loan to another company with which it has a special relationship, and

b

it is not part of the first company’s business to make loans generally,

the fact that it is not part of the first company’s business to make loans generally shall be disregarded in construing subsection (2) above.

5

Subsection (2) above does not apply where the special relationship provision expressly requires regard to be had to the debt on which the interest is paid in determining the excess interest (and accordingly expressly limits the factors to be taken into account).