17Loan charge reduced where underlying liability disclosed but unenforceableU.K.
(1)In Schedule 11 to F(No.2)A 2017 (employment income provided through third parties: loans etc outstanding on 5 April 2019) after paragraph 1A (as inserted by section 16) insert—
“1B(1)This paragraph applies where—
(a)a person is treated as taking a relevant step within paragraph 1 by reason of making a loan or quasi-loan,
(b)a reasonable case could have been made that for a qualifying tax year (“the relevant year”) A was chargeable to income tax on an amount that was referable to the loan or quasi-loan,
(c)at a time when an officer of Revenue and Customs had power to recover (from A or any other person) income tax for the relevant year in respect of that amount, a qualifying tax return or two or more qualifying tax returns of the same type taken together contained a reasonable disclosure of the loan or quasi-loan, and
(d)as at 6 April 2019 an officer of Revenue and Customs had not taken steps to recover (from A or any other person) income tax for the relevant year in respect of that amount.
(2)But this paragraph does not apply if—
(a)a reasonable case could have been made that for a tax year other than the relevant year (“the alternative year”) A was chargeable to income tax on an amount within sub-paragraph (3), and
(b)it is the case that—
(i)on or before 5 April 2019 an officer of Revenue and Customs took steps to recover (from A or any other person) income tax for the alternative year in respect of that amount, or
(ii)the alternative year is not a qualifying tax year.
(3)An amount is within this sub-paragraph if —
(a)it is the same amount as is mentioned in sub-paragraph (1),
(b)it is part of the amount mentioned in sub-paragraph (1), or
(c)it is derived from or represents the whole or part of the amount mentioned in sub-paragraph (1).
(4)Where this paragraph applies, then for the purposes of paragraphs 1(4) and 1A(5) the amount of the loan or quasi-loan that is outstanding is to be taken to be reduced (but not below nil) by the amount mentioned in sub-paragraph (1).
(5)For the purposes of sub-paragraph (1)(c) a qualifying tax return, or two or more qualifying tax returns taken together, contained a reasonable disclosure of the loan or quasi-loan if the return or returns taken together—
(a)identified the loan or quasi-loan,
(b)identified the person to whom the loan or quasi-loan was made in a case where the loan or quasi-loan was made to a person other than A,
(c)identified the relevant arrangements in pursuance of which or in connection with which the loan or quasi-loan was made, and
(d)provided such other information as was sufficient for it to be apparent that a reasonable case could be made that for the relevant year A was chargeable to income tax on an amount that was referable to the loan or quasi-loan.
(6)A reference in sub-paragraph (1)(b), (2) or (5)(d) to A being chargeable to income tax does not include A being chargeable to income tax by reason of section 175 of ITEPA 2003 (benefit of taxable cheap loan treated as earnings).
(7)In this paragraph—
“qualifying tax year” means the tax year 2015-16 and any earlier tax year, and
“qualifying tax return” means —
(a)a return made by A or B under section 8 of TMA 1970 for a qualifying tax year, and any accompanying accounts, statements or documents, or
(b)a return made by B under paragraph 3 of Schedule 18 to FA 1998 for an accounting period that commenced before 6 April 2016,
and a qualifying tax return is of the same type as another if both fall within the same paragraph of this definition.”
(2)In Schedule 12 to F(No.2)A 2017 (trading income provided through third parties: loans etc outstanding on 5 April 2019) after paragraph 1 insert—
“1A(1)This paragraph applies where—
(a)a loan or quasi-loan is to be treated for the purposes of sections 23A to 23H of ITTOIA 2005 as a relevant benefit by reason of paragraph 1,
(b)a reasonable case could have been made that for a qualifying tax year (“the relevant year”) T was chargeable to income tax on an amount that was referable to the loan or quasi-loan,
(c)at a time when an officer of Revenue and Customs had power to recover (from T or any other person) income tax for the relevant year in respect of that amount, a qualifying tax return or two or more qualifying tax returns taken together contained a reasonable disclosure of the loan or quasi-loan, and
(d)as at 6 April 2019 an officer of Revenue and Customs had not taken steps to recover (from T or any other person) income tax for the relevant year in respect of that amount.
(2)But this paragraph does not apply if—
(a)a reasonable case could have been made that for a tax year other than the relevant year (“the alternative year”) T was chargeable to income tax on an amount within sub-paragraph (3), and
(b)it is the case that—
(i)on or before 5 April 2019 an officer of Revenue and Customs took steps to recover (from T or any other person) income tax for the alternative year in respect of that amount, or
(ii)the alternative year is not a qualifying tax year.
(3)An amount is within this sub-paragraph if—
(a)it is the same amount as is mentioned in sub-paragraph (1),
(b)it is part of the amount mentioned in sub-paragraph (1), or
(c)it is derived from or represents the whole or part of the amount mentioned in sub-paragraph (1).
(4)Where this paragraph applies, then for the purposes of paragraph 1(3)(a) and (3A)(a) the amount of the loan or quasi-loan that is outstanding is to be taken to be reduced (but not below nil) by the amount mentioned in sub-paragraph (1).
(5)For the purposes of sub-paragraph (1)(c) a qualifying tax return, or two or more qualifying tax returns taken together, contained a reasonable disclosure of the loan or quasi-loan if the return or returns taken together—
(a)identified the loan or quasi-loan,
(b)identified the person to whom the loan or quasi-loan was made in a case where the loan or quasi-loan was made to a person other than T,
(c)identified the relevant arrangements in pursuance of which or in connection with which the loan or quasi-loan was made, and
(d)provided such other information as was sufficient for it to be apparent that a reasonable case could be made that for the relevant year T was chargeable to income tax on an amount that was referable to the loan or quasi-loan.
(6)In this paragraph—
“qualifying tax year” means the tax year 2015-16 and any earlier tax year, and
“qualifying tax return” means a return made by T under section 8 of TMA 1970 for a qualifying tax year, and any accompanying accounts, statements or documents.”