[F1Case 3: proportion-based relevant defeatU.K.
Textual Amendments
F1Sch. 34A inserted (15.9.2016) by Finance Act 2016 (c. 24), s. 160(5)
9(1)Case 3 applies if—U.K.
(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.]