Corporation Tax Act 2009 (c. 4)

Part 6 U.K. Relationships treated as loan relationships etc

Chapter 3 U.K. OEICs, unit trusts and offshore funds

Introduction U.K.

487 Overview of Chapter U.K.

(1) This Chapter provides for the Corporation Tax Acts to apply in some circumstances to holdings in open-ended investment companies, unit trust schemes and offshore funds as if they were rights under a creditor relationship (see section 490).

(2) That treatment depends on the company, scheme or fund failing the qualifying investments test.

(3) Sections 493 to 496 deal with when that test is met.

(4) For the meaning of “open-ended investment company” and “offshore fund” in this Chapter, see sections 488 and 489 respectively.

488 Meaning of “open-ended investment company” etc U.K.

(1) [F1 Sections 613 and 615(3) of CTA 2010] (meaning of “open-ended investment company” and “company” and application to parts of umbrella companies) apply for the purposes of this Chapter as they apply for the purposes of [F2 Chapter 2 of Part 13 of that Act].

(2) In this Chapter “umbrella company” has the meaning given by [F3 section 615 of CTA 2010].

Textual Amendments

F1 Words in s. 488(1) substituted (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 627(2)(a) (with Sch. 2)

F2 Words in s. 488(1) substituted (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 627(2)(b) (with Sch. 2)

F3 Words in s. 488(2) substituted (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 627(3) (with Sch. 2)

[F4 489 Meaning of “offshore fund” etc U.K.

[F5 Sections 355 to 363 of TIOPA 2010] (meaning of “offshore fund” and application to parts of umbrella funds and classes of interests in offshore funds) apply for the purposes of this Chapter as they apply for the purposes of [F6 Part 8] of that Act.]

Textual Amendments

F4 Words in s. 489 substituted (with effect in accordance with art. 1(2)(3) Sch. 1 of the amending S.I.) by The Offshore Funds (Tax) Regulations 2009 (S.I. 2009/3001), regs. 1(1), 131(2)

F5 Words in s. 489 substituted (with effect in accordance with s. 381(1) of the amending Act) by Taxation (International and Other Provisions) Act 2010 (c. 8), s. 381(1), Sch. 8 para. 172(a) (with Sch. 9 paras. 1-9, 22)

F6 Words in s. 489 substituted (with effect in accordance with s. 381(1) of the amending Act) by Taxation (International and Other Provisions) Act 2010 (c. 8), s. 381(1), Sch. 8 para. 172(b) (with Sch. 9 paras. 1-9, 22)

Holdings in OEICs, unit trusts and offshore funds treated as creditor relationship rights U.K.

490 Holdings in OEICs, unit trusts and offshore funds treated as creditor relationship rights U.K.

(1) This section applies if—

(a) at any time in an accounting period of a company it holds—

(i) any shares in an open-ended investment company,

(ii) any rights under a unit trust scheme, or

(iii) [F7 an interest] in an offshore fund, and

(b) there is a time in the period when that company, scheme or fund fails to meet the qualifying investments test (see section 493).

[F8 (2) The Corporation Tax Acts have effect for the accounting period in accordance with subsection (3) as if—

(a) the relevant holding were rights under a creditor relationship of the company, and

(b) any distribution in respect of the relevant holding were not a distribution (and accordingly is within Part 5).]

(3) The credits and debits to be brought into account for the purposes of Part 5 in respect of the company's relevant holdings are to be determined on the basis of fair value accounting.

F9 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F9 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) In this section and sections 491 and 492 “relevant holding” means a holding within subsection (1)(a).

(7) [F10 But the following are not treated as such a holding—

(a) arrangements] that are investment bond arrangements for the purposes of Chapter 6 of this Part or are within section 48A of FA 2005 (alternative finance arrangements: alternative finance investment bond: introduction) [F11 , and

(b) a holding in an offshore fund (including a unit trust which is also an offshore fund) if the income arising to the fund is treated as the income of the company]

(8) See section 18(2)(c)(i) of F(No.2)A 2005 (section 17(3): specific powers) for the power to modify “relevant holding” for the purposes of this section and section 492 by regulations under section 17(3) of that Act (regulations about authorised unit trusts and OEICS).

Textual Amendments

F7 Words in s. 490(1)(a)(iii) substituted (with effect in accordance with art. 1(2)(3) Sch. 1 of the amending S.I.) by The Offshore Funds (Tax) Regulations 2009 (S.I. 2009/3001), regs. 1(1), 131(3)

F8 S. 490(2) substituted (with effect in accordance with s. 27(7)-(9) of the amending Act) by Finance Act 2014 (c. 26), s. 27(3)

F9 S. 490(4)(5) omitted (with effect in accordance with s. 27(7)-(9) of the amending Act) by virtue of Finance Act 2014 (c. 26), s. 27(4)

F10 Words in s. 490(7) substituted (27.5.2011) (with effect in accordance with reg. 1(2) of the amending S.I.) by The Offshore Funds (Tax) (Amendment) Regulations 2011 (S.I. 2011/1211), regs. 1(1), 45(a)

F11 Words in s. 490(7) substituted (27.5.2011) (with effect in accordance with reg. 1(2) of the amending S.I.) by The Offshore Funds (Tax) (Amendment) Regulations 2011 (S.I. 2011/1211), regs. 1(1), 45(b)

Modifications etc. (not altering text)

C1 S. 490 applied (with modifications) by S.I. 2006/964, reg. 69Z64 (as inserted (1.9.2009) by The Authorised Investment Funds (Tax) (Amendment) Regulations 2009 (S.I. 2009/2036), regs. 1, 24)

C2 S. 490 excluded by S.I. 2013/2819, reg. 29A (as inserted (6.4.2014) by The Unauthorised Unit Trusts (Tax) (Amendment) Regulations 2014 (S.I. 2014/585), regs. 1, 5)

491 Holding coming within section 490: opening valuations U.K.

(1) This section applies if—

(a) a relevant holding is held by a company both—

(i) at the end of one accounting period (“the first period”), and

(ii) at the beginning of the next (“the second period”), and

(b) section 490 applies to the holding for the second period but not the first period.

(2) For the purposes of section 490(3), the opening value of the holding as at the beginning of the second period is taken to be equal to its market value for the purposes of TCGA 1992 immediately before the end of the first period (see section 272 of that Act).

[F12 492 Holding coming within section 490: calculation to undo avoidance U.K.

(1) Subsection (2) applies if—

(a) section 490 applies for an accounting period of a company to a relevant holding held by the company,

(b) a relevant fund enters into any arrangements, or arrangements are entered into that in whole or part relate to a relevant fund, and

(c) the main purpose or one of the main purposes of the arrangements is to obtain a tax advantage for a person.

(2) The company must make adjustments to counteract any tax advantage connected in any way with the relevant holding that would (ignoring this section) be obtained by the company, or any other person, directly or indirectly in consequence of the arrangements or their being entered into.

(3) The arrangements may be ones entered into at a time when the company does not hold the relevant holding; and any person referred to in subsection (1)(c) need not be identified when the arrangements are entered into.

(4) The adjustments required by subsection (2) are such as are just and reasonable.

(5) In this section—

• “arrangements” includes any scheme, arrangement or understanding of any kind, whether or not legally enforceable, involving a single transaction or two or more transactions, and

• “relevant fund” means—

  (a)

  the open-ended investment company, unit trust scheme or offshore fund in which the relevant holding is held, or

  (b)

  an open-ended investment company, unit trust scheme or offshore fund in which a relevant fund has a holding.]

Textual Amendments

F12 S. 492 substituted (with effect in accordance with s. 27(7)-(9) of the amending Act) by Finance Act 2014 (c. 26), s. 27(5)

The qualifying investments test U.K.

493 The qualifying investments test U.K.

(1) An open-ended investment company, a unit trust scheme or an offshore fund meets the qualifying investments test for the purposes of this Chapter if the market value of the qualifying investments of the company, scheme or fund does not exceed 60% of the market value of all its investments.

(2) References in this section and sections 494 and 495 to investments of an open-ended investment company are references—

(a) except where paragraph (b) applies, to the property subject to the collective investment scheme constituted by the company, and

(b) in a case where under [F13 section 615(3) of CTA 2010] part of an umbrella company is regarded as an open-ended investment company, to such of the property subject to the collective investment scheme constituted by the umbrella company as forms part of the separate pool in question,

other than cash awaiting investment.

(3) References in this section and sections 494 and 495 to investments of a unit trust scheme are references to investments subject to the trusts of the scheme, other than cash awaiting investment.

(4) References in this section and sections 494 and 495 to investments of an offshore fund are references to assets of the fund, other than cash awaiting investment.

(5) In this section “collective investment scheme” has the meaning given by section 235 of FISMA 2000.

(6) A person with rights in a part of an umbrella company which is regarded under [F14 section 615(3) of CTA 2010] as an open-ended investment company is treated for the purposes of this section as not owning shares in the umbrella company.

(7) For the meaning of references to investments subject to the trusts of the scheme in the case of certain authorised unit trusts, see [F15 section 619 of CTA 2010] (umbrella schemes).

Textual Amendments

F13 Words in s. 493(2)(b) substituted (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 628(2) (with Sch. 2)

F14 Words in s. 493(6) substituted (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 628(3) (with Sch. 2)

F15 Words in s. 493(7) substituted (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 628(4) (with Sch. 2)

494 Meaning of “qualifying investments” U.K.

(1) In section 493 “qualifying investments”, in relation to an open-ended investment company, a unit trust scheme or an offshore fund, means investments of the company, scheme or fund of any of the following descriptions—

(a) money placed at interest,

(b) securities,

(c) shares in a building society,

(d) qualifying holdings in an open-ended investment company, a unit trust scheme or an offshore fund,

(e) alternative finance arrangements,

(f) derivative contracts whose underlying subject matter consists wholly of any one or more of—

(i) the matters referred to in paragraphs (a) to (e) (other than diminishing shared ownership arrangements), and

(ii) currency,

(g) contracts for differences whose underlying subject matter consists wholly of any one or more of—

(i) interest rates,

(ii) creditworthiness, and

(iii) currency, and

(h) derivative contracts not within paragraph (f) or (g) where there is a hedging relationship between the contract and an asset within paragraphs (a) to (d).

(2) In this section—

• “contract for differences” has the same meaning as in Part 7 (derivative contracts) (see section 582),

• “diminishing shared ownership arrangements” means arrangements to which section 504 applies,

• “hedging relationship” has the meaning given by section 496,

• “qualifying holding” has the meaning given by section 495(1),

• “security” does not include shares in a company, and

• “underlying subject matter” has the same meaning as in Part 7 (derivative contracts) (see section 583).

495 Qualifying holdings U.K.

(1) For the purposes of section 494(1)(d) a holding in an open-ended investment company, a unit trust scheme or an offshore fund is a qualifying holding at any time if—

(a) at that time, or

(b) at any other time in the relevant accounting period,

the company, scheme or fund [F16 itself fails] to meet the qualifying investments test F17 ... .

F18 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In this section “holding”—

(a) in relation to an open-ended investment company, means—

(i) except where sub-paragraph (ii) applies, shares in the company, and

(ii) in a case where under [F19 section 615(3) of CTA 2010] part of an umbrella company is regarded as an open-ended investment company, rights in the separate pool in question,

(b) in relation to a unit trust scheme, means an entitlement to a share in the investments of the scheme, and

(c) in relation to an offshore fund, means—

(i) shares in any company by which the fund is constituted, or

(ii) an entitlement to a share in the investments of the fund.

(4) In this section “relevant accounting period” means the accounting period referred to in section 490(1).

Textual Amendments

F16 Words in s. 495(1) substituted (with effect in accordance with s. 27(7)-(9) of the amending Act) by Finance Act 2014 (c. 26), s. 27(6)(a)(i)

F17 Words in s. 495(1) omitted (with effect in accordance with s. 27(7)-(9) of the amending Act) by virtue of Finance Act 2014 (c. 26), s. 27(6)(a)(ii)

F18 S. 495(2) omitted (with effect in accordance with s. 27(7)-(9) of the amending Act) by virtue of Finance Act 2014 (c. 26), s. 27(6)(b)

F19 Words in s. 495(3)(a)(ii) substituted (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 629 (with Sch. 2)

496 Meaning of “hedging relationship” U.K.

(1) For the purposes of section 494, in relation to an open-ended investment company, a unit trust scheme or an offshore fund, there is a hedging relationship between a derivative contract (“the hedging instrument”) and an asset (“the hedged item”) so far as condition A or B is met.

(2) Condition A is that the hedging instrument and the hedged item are designated as a hedge by the company, scheme or fund.

(3) Condition B is that the hedging instrument is intended to act as a hedge of exposure to changes in fair value of a hedged item which is—

(a) a recognised asset which could affect the total net return of the company, scheme or fund, or

(b) an identified part of such an asset which is attributable to a particular risk.

(4) For the purposes of subsection (3) “the total net return” of a company, scheme or fund means its total net return calculated—

(a) in accordance with generally accepted accounting practice, or

(b) in the case of accounts prepared in a jurisdiction outside the United Kingdom, in accordance with generally accepted accounting practice in that jurisdiction.

Power to change investments that are qualifying investments U.K.

497 Power to change investments that are qualifying investments U.K.

(1) The Treasury may by order amend sections 493 to 496 so as to extend or restrict the descriptions of investments of an open-ended investment company, a unit trust scheme or an offshore fund that are qualifying investments for the purposes of those provisions.

(2) The order may make—

(a) different provision for different cases, and

(b) incidental, supplemental, consequential and transitional provision and savings.

(3) In particular, the order may make such incidental modifications of section 495(2) as the Treasury consider appropriate.