48AUnascertainable consideration

1

This section applies where—

a

a person (“P”) has made a non-resident CGT disposal in relation to which there accrued to P an NRCGT gain chargeable to, or an NRCGT loss allowable for the purposes of, capital gains tax by virtue of section 14D or 188D (“the original disposal”),

b

P acquired a right as the whole or part of the consideration for that disposal,

c

on P’s acquisition of the right, there was no corresponding disposal of it, and

d

the right is a right to unascertainable consideration (see subsections (4) to (6)).

2

If P subsequently receives consideration (“the ascertained consideration”) representing the whole or part of the consideration referred to in subsection (1)(d) and condition A in section 14B would have been met in relation to the original disposal had a gain on that disposal accrued at the time of the receipt of the ascertained consideration—

a

the ascertained consideration is treated as not accruing on the disposal of the right,

b

the costs of P’s acquisition of the right (or, in the case of a part disposal of the right, those costs so far as referable to the part disposed of) are taken to be nil, and

c

the following steps are taken.

• Step 1

  Any amount by which the ascertained consideration exceeds the relevant original consideration is treated as consideration (or further consideration) accruing on the original disposal.

  If the relevant original consideration exceeds the ascertained consideration, the consideration accruing on the original disposal is treated as reduced by the amount of the excess.

• Step 2

  Compute the difference that the adjustment under step 1 makes to what (if any) NRCGT gain or loss, ATED-related gain or loss or other gain or loss accrues on the original disposal (computing this separately for each type of gain or loss).

  The difference is “positive” if a loss is decreased (to nil or otherwise) or a gain created or increased.

  The difference is “negative” if a gain is reduced (to nil or otherwise) or a loss created or increased.

• Step 3

  Any positive amount computed under step 2 is treated for the purposes of this Act and the Management Act as a gain (of the type appropriate to the computation) accruing to P at the time of the receipt of the ascertained consideration.

  Any negative amount computed under step 2 is treated for the purposes of this Act and the Management Act as a loss (of the type appropriate to the computation) accruing to P at the time of the receipt of the ascertained consideration.

3

In step 1 in subsection (2), “the relevant original consideration” means the consideration accruing on the original disposal, so far as referable to the right mentioned in subsection (1)(b) (or, in the case of a part disposal of the right, referable to the part disposed of).

4

A right is a right to unascertainable consideration if, and only if—

a

it is a right to consideration the amount or value of which is unascertainable at the time when the right is conferred, and

b

that amount or value is unascertainable at that time on account of its being referable, in whole or in part, to matters which are uncertain at that time because they have not yet occurred.

This subsection is subject to subsections (5) and (6).

5

The amount or value of any consideration is not to be regarded as being unascertainable by reason only—

a

that the right to receive the whole or any part of the consideration is postponed or contingent, if the consideration or, as the case may be, that part of it is, in accordance with section 48, brought into account in the computation of the gain accruing to a person on the disposal of an asset, or

b

in a case where the right to receive the whole or any part of the consideration is postponed and is to be, or may be, to any extent satisfied by the receipt of property of one description or property of some other description, that some person has a right to select the property, or the description of property, that is to be received.

6

A right is not to be taken to be a right to unascertainable consideration by reason only that either the amount or the value of the consideration has not been fixed, if—

a

the amount will be fixed by reference to the value, and the value is ascertainable, or

b

the value will be fixed by reference to the amount, and the amount is ascertainable.