SCHEDULES

F1SCHEDULE 34APromoters of tax avoidance schemes: defeated arrangements

Annotations:
Amendments (Textual)
F1

Sch. 34A inserted (15.9.2016) by Finance Act 2016 (c. 24), s. 160(5)

PART 2Meaning of “relevant defeat”

Case 3: proportion-based relevant defeat

9

1

Case 3 applies if—

a

at least 75% of the tested arrangements have been defeated, and

b

no final judicial ruling in relation to any of the related arrangements has upheld a corresponding tax advantage which has been asserted in connection with any of the related arrangements.

2

In this paragraph “the tested arrangements” means so many of the related arrangements (as defined in paragraph 5(3)) as meet the condition in sub-paragraph (3) or (4).

3

Particular arrangements meet this condition if a person has made a return, claim or election on the basis that a tax advantage results from those arrangements and—

a

there has been an enquiry or investigation by HMRC into the return, claim or election, or

b

HMRC assesses the person to tax on the basis that the tax advantage (or any part of it) does not arise, or

c

a GAAR counteraction notice has been given in relation to the tax advantage or part of it and the arrangements.

4

Particular arrangements meet this condition if HMRC takes other action on the basis that a tax advantage which might be expected to arise from those arrangements, or is asserted in connection with them, does not arise.

5

For the purposes of this paragraph a tax advantage has been “asserted” in connection with particular arrangements if a person has made a return, claim or election on the basis that the tax advantage arises from those arrangements.

6

In sub-paragraph (1)(b) “corresponding tax advantage” means a tax advantage corresponding to any tax advantage the counteraction of which is taken into account by HMRC for the purposes of sub-paragraph (1)(a).

7

For the purposes of this paragraph a court or tribunal “upholds” a tax advantage if—

a

the court or tribunal makes a ruling to the effect that no part of the tax advantage is to be counteracted, and

b

that judicial ruling is final.

8

In this paragraph references to “counteraction” include anything referred to as a counteraction in any of Conditions A to F in paragraphs 11 to 16.

9

In this paragraph “GAAR counteraction notice” means—

a

a notice such as is mentioned in sub-paragraph (2) of paragraph 12 of Schedule 43 to FA 2013 (notice of final decision to counteract),

b

a notice under paragraph 8(2) or 9(2) of Schedule 43A to that Act (pooling or binding of arrangements) stating that the tax advantage is to be counteracted under the general anti-abuse rule, or

c

a notice under paragraph 8(2) of Schedule 43B to that Act (generic referrals) stating that the tax advantage is to be counteracted under the general anti-abuse rule.