Finance Act 1998 (c. 36) (c. 36)

(The document as of February, 2008)

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(2) Nothing in section 43 of the [1989 c. 26.] Finance Act 1989 (computation of profits: effect of delayed payment of emoluments) shall be construed as affecting the rule in sub-paragraph (1) above.

Receipts and expenses not to be left out of account

67 To the extent that receipts or expenses would under the new rules have been brought into account before commencement, and were not so brought into account, they shall be brought into account immediately after commencement.

Expenses not to be carried back to before commencement

68 Expenses which were incurred before commencement but were not taken into account before commencement shall not, by virtue of section 25(3) or 31(3) of the Taxes Act 1988, be carried back and taken into account before commencement.

Effect of transfer of underlying rights

69 If any estate, interest or rights in or over land is or are transferred from one person to another, the references in paragraphs 66 to 68 to receipts or expenses being taken into account shall be construed as references to their being taken into account in relation to either of those persons.

Bad debt relief

70 (1) Where relief under section 41 of the Taxes Act 1988 (relief for rent, etc. not paid) has been given in respect of an amount before commencement, any receipt after commencement shall be taken into account under the new rules.

(2) Any writing off of an amount after commencement shall be taken into account under the new rules, even where it relates to a receipt brought into account before commencement.

Meaning of "taken into account"

71 For the purposes of paragraphs 66 to 70 an amount is "taken into account" if--

(a) it is brought into account for tax purposes, or

(b) it would have been so brought into account if the person concerned were chargeable to tax.

Unrelieved Case VI losses

72 (1) A loss to which this paragraph applies which a company would, apart from this Schedule, have been entitled to carry forward under section 396 of the Taxes Act 1988 (Case VI losses) shall be treated after commencement as a loss of an earlier period within section 392A or 392B of that Act and accordingly available to be set off under those provisions.

(2) This paragraph applies to a loss sustained in a business or transaction of a kind that after commencement would be treated as carried on or entered into in the course of a Schedule A business or overseas property business carried on by the company.

Source ceasing in transitional accounting period

73 (1) The provisions of Parts I to III of this Schedule do not apply in relation to a source which ceases in the course of a company's transitional accounting period to be a source within the charge to tax under Schedule A or Case V or VI of Schedule D in relation to that company and any other person.

(2) This paragraph does not apply if the company acquired the source in that accounting period or in the preceding twelve months.

Superseded provisions relating to finance leasing

74 (1) In Schedule 12 to the [1997 c. 16.] Finance Act 1997 (leasing arrangements: finance leases and loans), the following provisions (which apply concepts from Case I of Schedule D in relation to rent taxed under Schedule A) shall cease to have effect in accordance with this paragraph.

(2) Paragraphs 3(6), 6(9)(b), 8(1) to (7) and 20(b) do not apply in relation to periods of account beginning on or after 1st April 1998.

A "period of account" means a period for which accounts are made up.

(3) Paragraph 8(8) does not apply if the time mentioned in that provision is on or after 1st April 1998.

(4) Paragraph 8(9) does not apply if the time mentioned in paragraph (a) of that provision is on or after 1st April 1998.

Computation of amounts available for surrender as group relief

75 In computing under section 403 of the Taxes Act 1988 the amounts available for surrender as group relief in a company's transitional accounting period, the amounts referable to the period before commencement shall be computed separately from the amounts referable to the period after commencement.

Meaning of "transitional accounting period"

76 For the purposes of paragraphs 73 and 75 a "transitional accounting period" means an accounting period beginning before, and ending on or after, 1st April 1998.

Section 44.

SCHEDULE 6 Adjustment on change of accounting basis

Introduction

1 The provisions of this Schedule apply in the circumstances specified in section 44(1) and (2).

Adjustment on change of accounting basis

2 (1) The amount required by way of adjustment must be calculated (in accordance with paragraph 3) and--

(a) if the amount is positive, it is chargeable to tax, and

(b) if it is negative, it is allowable as a deduction in computing profits.

(2) An amount chargeable to tax under this paragraph--

(a) is treated as income arising on the first day of the first period of account for which the new basis is adopted, subject to paragraphs 4 and 5 (spreading of adjustment charge in certain cases and election to accelerate payment);

(b) is chargeable to tax under Case VI of Schedule D;

(i) relevant earnings within section 623(2)(c) or 644(2)(c) of the Taxes Act 1988, or

(ii) earned income within section 833(4)(c) of that Act,

is similarly relevant earnings or earned income for the year of assessment in which it is charged to tax; and

(d) is treated for the purposes of Chapters I and II of Part X of the Taxes Act 1988 (loss relief) as profits of the trade, profession or vocation for the chargeable period for which it is charged to tax.

(3) An amount allowable under this paragraph as a deduction in computing profits is treated as an expense of the trade, profession or vocation in the first period for which the new basis is adopted.

Calculation of adjustment

3 (1) The amount of the adjustment is calculated as follows.

First step

Add together any amounts representing the extent to which, comparing the two bases, profits were understated (or losses overstated) on the old basis:

1. Receipts which on the new basis would have been brought into account in computing the profits of a period before the change of basis, to the extent that they were not so brought into account.

2. Expenses which on the new basis fall to be brought into account in computing the profits of a period after the change, to the extent that they were brought into account in computing the profits of a period of account before the change of basis.

3. Deductions in respect of opening trading stock or opening work in progress in the first period of account on the new basis to the extent to which they are not matched by credits in respect of closing trading stock or closing work in progress in the last period of account before the change.

Second step
Then deduct any amounts representing the extent to which, comparing the two bases, profits were overstated (or losses understated) on the old basis:

Receipts which were taken into account in a period before the change, to the extent that they would not have been taken into account for such a period if the profits had been computed on the new basis.

Expenses which were not taken into account in computing the profits of a period before the change, to the extent that they would have been taken into account for such a period if the profits had been computed on the new basis.

Credits in respect of closing trading stock or closing work in progress in the last period of account before the change of accounting basis to the extent to which they are not matched by deductions in respect of opening trading stock or opening work in progress in the first period of account on the new basis.

An amount so deducted may not be deducted again in computing the profits of a period of account.
Third step
In the case of a profession or vocation adopting a new accounting basis to comply with section 42 (true and fair view), a further deduction may be made by way of adjustment in respect of any change of accounting basis before 6th April 1999.
The amount deductible is calculated as follows--

Add together the amounts by which profits were overstated (or losses understated) by reason of the previous change of accounting basis:

Receipts to the extent that by reason of the change of accounting basis they were brought into account in more than one period of account.

Expenses to the extent that by reason of the change of accounting basis they were not deducted in any period of account.

Credits in respect of closing trading stock or closing work in progress in the last period of account before the change of accounting basis to the extent that they were not matched by deductions in respect of opening trading stock or opening work in progress in the first period of account following the change.

Then deduct the amounts by which profits were understated (or losses overstated) by reason of that change:

Receipts to the extent that by reason of the change of accounting basis they were not brought into account in any period of account.

Expenses to the extent that by reason of the change of accounting basis they were deducted in more than one period of account.

Deductions in respect of opening trading stock or opening work in progress in the first period of account following the change of accounting basis to the extent that they were not matched by credits in respect of closing trading stock or closing work in progress in the last period of account before the change.

An amount may not be so deducted if it has previously been brought into account; and it may not be deducted again on a subsequent change of accounting basis.

(2) The references in this paragraph to items being brought into account in a period of account before the change of basis are to their being brought into account--

(a) in computing the profits of the same trade, profession or vocation, and

(b) in accordance with the law and practice then applicable.

For the purposes of paragraph (a) a trade, profession or vocation is not regarded as the same if section 113(1) or 337(1) of the Taxes Act 1988 applies (deemed discontinuance on change of persons carrying on trade, profession or vocation).

Spreading of adjustment charge in certain cases

4 (1) This paragraph provides for the spreading of the adjustment charge in certain cases where an individual--

(a) has been entitled to compute the profits of a profession or vocation on a basis that does not comply with section 42 of this Act (true and fair view), or would not have complied with that section if it had been in force, and

(b) changes to an accounting basis that does comply with that section.

(2) The cases in which this paragraph applies are where a change of basis is made to comply with that section--

(a) on that section coming into effect in relation to periods of account beginning after 6th April 1999, or

(b) on the exemption given by section 43 of this Act (barristers and advocates in early years of practice) coming to an end or ceasing to apply.

(3) Where this paragraph applies the adjustment charge is spread over ten years of assessment, as follows.

(4) In each of the nine years of assessment beginning with that in which the whole amount would otherwise be chargeable to tax, an amount equal to whichever is the less of--

(a) one-tenth of the amount of the adjustment charge, and

(b) 10 per cent. of the profits of the profession or vocation for that year of assessment,

is treated as arising and chargeable to tax.

For the purposes of paragraph (b) the profits of the profession or vocation means the profits as computed for the purposes of Case II of Schedule D, leaving out of account any allowances or charges under the [1990 c. 1.] Capital Allowances Act 1990.

(5) In the tenth year of assessment the balance of the adjustment charge is treated as arising and chargeable to tax.

(6) If before the whole of the adjustment charge has been charged to tax the profession or vocation--

(a) is permanently discontinued, or

(b) is treated as permanently discontinued under section 113(1) of the Taxes Act 1988 (change of persons carrying on profession or vocation),

the preceding provisions of this paragraph continue to apply, but with the omission of the alternative limit in sub-paragraph (4)(b) by reference to profits of the profession or vocation.

(7) This paragraph has effect subject to any election under paragraph 5.

Election to accelerate payment of adjustment charge

5 (1) A person who under paragraph 4 is chargeable to tax for a year of assessment on an amount representing part of an adjustment charge may elect that the amount treated as income arising in that year of assessment should be increased.

(2) The election must be made--

(a) by notice in writing,

(b) to an officer of the Board,

(3) The election must specify the amount to be treated as income arising in the year of assessment, which may be any amount up to the whole of the adjustment charge so far as not previously charged to tax.

(4) Where an election has been made, paragraph 4 applies in relation to any subsequent year of assessment as if the original amount of the adjustment charge were reduced by the additional amount treated as arising in the year for which the election was made.

Application of provisions to partnerships

6 (1) In the case of a trade, profession or vocation carried on in partnership, the amount of any adjustment under this Schedule shall be computed--

(a) for income tax purposes, as if the partnership were an individual resident in the United Kingdom, and

(b) for corporation tax purposes, as if the partnership were a company resident in the United Kingdom.

(2) Subject to the following provisions of this paragraph, each partner's share of any amount chargeable to tax under paragraph 2 shall be determined according to the profit-sharing arrangements for the twelve months ending immediately before the date on which the new accounting basis was adopted.

(3) If paragraph 4 applies (spreading of adjustment charge in certain cases), then, subject to sub-paragraph (4) below--

(a) each partner's share of the amount chargeable in any year of assessment shall be determined--

(i) for the first year of assessment, according to the profit-sharing arrangements for the twelve months ending immediately before the date on which the new accounting basis was adopted, and

(ii) for any subsequent year of assessment, according to the profit-sharing arrangements for the twelve months immediately preceding the anniversary in that year of that date; and

(b) any election under paragraph 5 (election for accelerated payment) in relation to a year of assessment must be made jointly by all the persons who have been members of the partnership in the relevant twelve month period.

(4) If paragraph 4(6) applies (effect of discontinuance of profession or vocation), then--

(a) each partner's share of any amount chargeable on or after the discontinuance is determined as follows--

(i) if the discontinuance occurs on the date on which the new accounting basis was adopted, according to the profit-sharing arrangements for the twelve months ending immediately before that date;

(ii) if the discontinuance occurs after that date but before the first anniversary of that date, according to the profit-sharing arrangements for the period between that date and the date of discontinuance;

(iii) if the discontinuance occurs after the first anniversary of the date on which the new accounting basis was adopted, according to the profit-sharing arrangements for the period between the immediately preceding anniversary of that date and the date of discontinuance; and

(b) any election under paragraph 5 after the discontinuance must be made by each former partner separately.

(5) For the purposes of this paragraph--

(a) "profit-sharing arrangements" means the rights of the partners to share in the profits of the trade, profession or vocation for the period in question; and

(b) references to the date on which a new accounting basis was adopted are to the first day of the first period of account for which the new basis was adopted.

(6) The provisions of section 111 of the Taxes Act 1988 (general provisions as to taxation of partnerships), except subsection (1) (partnership not to be treated as separate entity), do not apply to the extent that the preceding provisions of this paragraph apply.

Liability of personal representatives in case of death of person chargeable

7 In the case of the death of a person who, if he had not died, would have been chargeable to tax under paragraph 4 on an amount representing part of an adjustment charge--

(a) the tax which would have been so chargeable shall be assessed and charged on his personal representatives and shall be a debt due from and payable out of his estate, and

(b) his personal representatives may make any election under paragraph 5 which he might have made.

Interpretation

8 In this Schedule--

"adjustment charge" means a charge under paragraph 2 above; and
"period of account" means any period for which accounts of the trade, profession or vocation are drawn up.

Section 46(3).

SCHEDULE 7 Removal of unnecessary references to gains

The following are the provisions of the Taxes Acts in which the amendments specified in section 46(3) are to be made.

1 In the Taxes Act 1988: sections 53(1) and (3), 55(1), 60(1) and (2) (twice), 61(1) (twice), 63A(1), (3) and (5), 65(2A) and (5)(b), 65A(2), 68(1), 74(1) opening words and paragraph (m), 77(1) and (2)(a)(i), 79(1), 79A(1), 80(10), 82(1) and (5), 83, 84A(2)(a), 85(1)(a), 85A(2)(a), 86(2) definition of "deductible", 86A(2)(a), 87(2) and (6), 88(a), 89 (twice), 90(1)(a), 91(1) and (4)(a)(i), 91A(2) and (3)(a), 91B(2), (5)(a) and (6)(a), 91C(b), 94(1), 96(7), 97, 99(1) and (2), 100(1), (1D) and (1E) (twice each), 101(1) (twice) and (2)(a), 102(1), 103(1), (2)(a) (twice), (2)(b) (twice), (4)(a) and (5), 104(1) (twice), (2), (4), (5) and (7), 105(1)(a) (twice) and (4), 106(2), 107, 109(1)(b), 109A(2)(d), (4) and (4A), 110(3) (twice), (4) and (5) (three times), 110A(1), 111(2), (3) and (4) (twice), (7) (twice), (8)(a) and (11), 112(1A) and (1B), 113(1), 117(1), (3)(b) and (4), 118(1), 160(1C)(b), 291A(3)(f)(ii) (twice), 368(3) and (4)(a), 375A(1)(b), 379A(1)(a), (1)(b) (twice) and (7), 382(3), 385(4) (three times), 386(1), 388(1), (4) (four times), (5) (in the first two places) and (7), 400(6), 401(1)(b), 486(10) (twice), 491(3) (twice), (4), (5), (6), (8)(b) (twice) and (11), 509(1) (twice), 526(1)(b), 528(1)(a), 556(3)(a), 557 side note, (1) (twice) and (2)(a), (b) and (c), 559(4)(b) and (5) (twice), 568(1), 570(1), 577(1)(a) and (9), 577A(1) and (1A), 579(2), 588(3), 589A(8), 730C(1), 770(2)(a)(iii) and (b)(iii), 776(6)(a) and (b), 779(13)(b), 780(3)(a), 781(4)(a) and (5)(b), 782(1)(a), (2) and (3), 785 definition of "capital sum" where the words first occur, 830(4) in the second place, Schedule 5, paragraphs 1(1), 2(6) meaning of "qualifying year of assessment", 3(1) and (4)(b), 5(1), 6(4) meaning of "qualifying year of assessment" and (5) and 8(7) (three times), Schedule 21, paragraph 6(1)(b) and (3) (twice).

2 In the [1988 c. 39.] Finance Act 1988: section 73(2), Schedule 12, paragraph 2(2).

3 In the [1989 c. 26.] Finance Act 1989: sections 67(2)(a), 76(1) and (4)(a) and 112(1).

4 In the [1990 c. 1.] Capital Allowances Act 1990: sections 12, 17(1) (twice), 18(13), 23(1)(c), 33A(3), 35(2), 42(1)(b) (twice), 43(2), 44(2)(a), 45(2), (4) and (5), 65(3), 68(7) and (10) (twice), 69(1) and (2), 70(1), 71(1), 80(1)(b), 109(1)(c), 115(2A), 136 and 153(2)(b).

5 In the [1990 c. 29.] Finance Act 1990: section 126(2).

6 In the [1991 c. 31.] Finance Act 1991: section 121.

7 In the [1992 c. 12.] Taxation of Chargeable Gains Act 1992: sections 39(1) (in the first place) and (2) (in both places), 41(4) and (5) and 164L(8) (twice).

8 In the [1992 c. 48.] Finance (No. 2) Act 1992: section 42(8) and Schedule 12, paragraphs 3(3)(c) and 4(2) (twice).

9 In the [1994 c. 9.] Finance Act 1994: Schedule 24, paragraph 12(2).

10 In the [1995 c. 4.] Finance Act 1995: section 126(6) and (7).

11 In the [1996 c. 8.] Finance Act 1996: sections 80(2) (in the second place) and 82(2)(a) and (b).

12 In the [1997 c. 16.] Finance Act 1997: Schedule 12, paragraph 8(4)(a).

Section 57.

SCHEDULE 8 Sub-contractors in the construction industry

Introductory

1 Chapter IV of Part XIII of the Taxes Act 1988 shall be amended in accordance with paragraphs 2 to 6 below.

Application of deductions to public departments etc

2 (1) In section 559, after subsection (5) (excess of deduction from payment to sub-contractors to be treated as deduction for the purposes of the social security legislation) there shall be inserted the following subsection--

" (5A) Notwithstanding anything in the preceding provisions of this section, the requirement to make a deduction under subsection (4) above shall have effect for the purposes of section 829 (application of Income Tax Acts to public departments) as if the whole of any deduction required to be made in pursuance of that subsection were in all cases a deduction of income tax. "

(2) In subsection (2) of section 560 (persons who are contractors) after "applies" there shall be inserted "(subject to subsection (2A) below)"; and after that subsection there shall be inserted the following subsections--

" (2A) Subject to subsection (2B) below, subsection (2) above does not apply at any time to an office, department or body falling within paragraph (aa), (b), (c), (d), (e) or (ea) of that subsection unless that office, department or body has, in the period of three years ending with the 31st March next before that time, had an average annual expenditure on construction operations of more than £1,000,000.

(2B) Where the condition provided for in subsection (2A) above has been satisfied in the case of any office, department or body in relation to any period of three years, that subsection shall not prevent subsection (2) above from applying to that office, department or body until there have been three successive years after the end of that period in each of which the office, department or body has had expenditure on construction operations of less than £1,000,000. "

(3) This paragraph has effect in relation to any payments made on or after the day, or first day, that is appointed under subsection (3) of section 139 of the [1995 c. 4.] Finance Act 1995 (commencement of changes to sub-contractors scheme) for the purposes of paragraph 2 of Schedule 27 to that Act (additional public bodies etc that may be contractors).

(4) The reference in subsection (2B) of section 560 of the Taxes Act 1988 to a period of three years in relation to which the condition provided for in subsection (2A) of that section has been satisfied does not include a reference to any such period ending more than a year before the day or, as the case may be, first day mentioned in sub-paragraph (3) above.

Conditions for exemption of partnerships

3 (1) In subsection (2A) of section 564 (certificates for partnerships), for the words from "that" to the end there shall be substituted " that the carrying on of the firm's business is likely to involve--

(a) the receipt, annually in the period to which the certificate would relate, of an aggregate amount by way of relevant payments which is not less than the sum specified in subsection (2B) below; or

(b) the receipt, annually in the period to which the certificate would relate, of an aggregate amount by way of construction contract payments which is not less than the amount specified for the purposes of this paragraph in regulations made by the Board. "

(2) After that subsection there shall be inserted the following subsection--

" (2AA) In subsection (2A)(a) above "relevant payments" has the meaning given by section 562(2B). "

(3) After subsection (2B) of that section there shall be inserted the following subsection--

" (2C) In subsection (2A)(b) above "construction contract payments" means payments under contracts relating to, or to the work of individuals participating in the carrying out of, any operations which--

(a) are of a description specified in subsection (2) of section 567; but

(b) are not of a description specified in subsection (3) of that section,

other than so much of the payments as represents the direct cost to the firm of materials used or to be used in carrying out the operations in question. "

Conditions of exemption for companies

4 (1) For subsections (2A) and (2B) of section 565 (certificates for companies) there shall be substituted the following subsections--

" (2A) The company must either--

(a) satisfy the Board, by such evidence as may be prescribed in regulations made by them, that the annual receipts test is satisfied; or

(b) satisfy the Board that the only persons with shares in the company are companies which are limited by shares and themselves excepted from section 559 by virtue of a certificate which is in force under section 561.

(2B) The annual receipts test is satisfied in relation to a company if the carrying on of its business is likely to involve the receipt, annually in the period to which the certificate would relate--

(a) of an aggregate amount by way of relevant payments which is not less than the amount obtained by multiplying the amount specified in regulations as the minimum turnover for the purposes of section 562(2A) by the number of persons who are relevant persons in relation to the company; or

(b) of an aggregate amount by way of construction contract payments which is not less than the amount specified for the purposes of this paragraph in regulations made by the Board.

(2BB) In subsection (2B) above "relevant payments" has the meaning given by section 562(2B). "

(2) After subsection (2C) of that section there shall be inserted the following subsection--

" (2D) In subsection (2B) above "construction contract payments" means payments under contracts relating to, or to the work of individuals participating in the carrying out of, any operations which--

(a) are of a description specified in subsection (2) of section 567; but

(b) are not of a description specified in subsection (3) of that section,

other than so much of the payments as represents the direct cost to the company of materials used or to be used in carrying out the operations in question. "

Commencement of paragraphs 3 and 4

5 Paragraphs 3 and 4 above have effect in relation to any application for the issue or renewal of a certificate under section 561 of the [1995 c. 4.] Taxes Act 1988 in relation to which paragraphs 3(1) and 4 to 7 of Schedule 27 to the Finance Act 1995 (which amend sections 564 and 565 of the Taxes Act 1988) have effect in accordance with paragraph 8(1) of that Schedule.

Powers to make regulations

6 In section 566 (powers to make regulations under Chapter IV), the following subsections shall be inserted after subsection (3)--

" (4) Any power under this Chapter to make regulations authorising or requiring a document (whether or not of a particular description), or any records or information, to be issued, given or requested or to be sent, produced, returned or surrendered to the Board shall include power--

(a) to authorise the Board to nominate a person who is not an officer of the Board to be the person who on behalf of the Board--

(i) issues, gives or requests the document, records or information; or

(ii) is the recipient of the document, records or information;

and

(b) to require the document, records or information, in cases prescribed by or determined under the regulations, to be sent, produced, returned or surrendered to the address (determined in accordance with the regulations) of the person nominated by the Board to receive it on their behalf.

(5) Any power under this Chapter to make regulations imposing requirements with respect to any description of document, with respect to documents generally or with respect to any records or information shall include power to make provision, subject to such conditions as may be prescribed by or determined in accordance with the regulations--

(a) for the documents, records or information to be allowed to take an electronic form so prescribed or determined;

(b) for the issue, completion, furnishing, production, keeping, cancellation, return, surrender or giving of the documents, records or information to be something that has to be or may be done by the electronic means so prescribed or determined; and

(c) for the manner of proving in any proceedings the contents or transmission of anything that, by virtue of any regulations under this Chapter, takes an electronic form or is transmitted to any person by electronic means. "

Transitional provision for commencement of 1995 Act amendments

7 An order under subsection (3) of section 139 of the [1995 c. 4.] Finance Act 1995 (commencement of changes to sub-contractors scheme) appointing a day for the purposes of a provision of that section or Schedule 27 to that Act may also provide that certificates under section 561 of the Taxes Act 1988 which have been issued or renewed before the making of the order for periods ending on or after the appointed day are to cease to have effect at the end of the day immediately preceding the appointed day.

Section 58(2).

SCHEDULE 9 Payments and other benefits in connection with termination of employment etc

Part I Schedule 11 to the Taxes Act 1988

The Schedule substituted for Schedule 11 to the Taxes Act 1988 is as follows:--

" Schedule 11 Payments and other benefits in connection with termination of employment, etc.

Introductory

1 The provisions of this Schedule supplement the provisions of section 148 with respect to the taxation of payments and other benefits received in connection with--

(a) the termination of a person's employment, or

(b) any change in the duties of or emoluments from a person's employment.

Payments and other benefits to which section 148 applies

2 (1) Section 148 applies to all payments and other benefits received directly or indirectly in consideration or in consequence of, or otherwise in connection with, the termination or change--

(a) by the employee or former employee,

(b) by the spouse or any relative or dependant of the employee or former employee, or

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