Finance Act 2002 (c. 23)

(The document as of February, 2008)

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4 In paragraph 8 (subsidised expenditure), for the second sentence of sub-paragraph (2) substitute--

" For this purpose the following are not State aids--

(a) R&D tax relief and R&D tax credits;

(b) tax relief under Schedule 12 to the Finance Act 2002 (tax relief for expenditure on research and development);

5 In paragraph 12 (treatment of sub-contractor payments where principal and sub-contractor unconnected), for paragraph (b) substitute--

" (b) the company and the sub-contractor are not connected persons, and

Section 57

SCHEDULE 16 Community investment tax relief

Part 1 Introduction

Eligibility for tax relief

1 (1) An individual or company ("the investor") that makes an investment ("the investment") in a body is eligible for relief in respect of the investment if--

(a) that body is accredited as a community development finance institution under this Schedule at the time the investment is made (see Part 2);

(b) the investment is a qualifying investment (see Part 3); and

(2) In this Schedule references to "the CDFI" are to the body in which the investment is made.

Meaning of "investment"

2 (1) For the purposes of this Schedule, a person makes an investment in a body at any time when--

(a) he makes a loan (whether secured or unsecured) to the body, or

(b) an issue of securities of or shares in the body, for which he has subscribed, is made to him.

(2) For the purposes of sub-paragraph (1)(a)--

(a) a person does not make a loan to a body where--

(i) the body uses overdraft facilities provided by that person, or

(ii) that person subscribes for or otherwise acquires securities of the body;

(b) where the loan agreement authorises the body to draw down amounts of the loan over a period of time, the loan is treated as made at the time when the first amount is drawn down.

Meaning of "the five year period"

3 In this Schedule "the five year period" means the period of five years beginning with the day the investment is made ("the investment date").

Part 2 Accredited community development finance institutions

Application and criteria for accreditation

4 (1) Applications for accreditation as a community development finance institution must be made to the Secretary of State in such form and manner as he may specify.

(2) The Secretary of State shall accredit a body if, and only if, he is satisfied--

(a) that the body's principal objective is to provide (directly or indirectly)--

(i) finance, or

(ii) finance and access to business advice,

for enterprises for disadvantaged communities, and

(b) that the body satisfies such other criteria as may be specified in regulations made by the Treasury.

(3) For the purposes of this paragraph "enterprises for disadvantaged communities" include--

(a) enterprises located in disadvantaged areas, and

(b) enterprises owned or operated by, or designed to serve, members of disadvantaged groups.

(4) The criteria mentioned in paragraph (b) of sub-paragraph (2) may include criteria relating to the enterprises to which the body provides or proposes to provide finance or access to business advice.

(5) Regulations under that paragraph may--

(a) make the provision mentioned in that paragraph by reference to any material published by, or on behalf of, the Secretary of State (whether before or after the coming into force of this paragraph), and

(b) make different provision for different cases or circumstances or in relation to different areas.

(6) Without prejudice to the generality of sub-paragraph (5)(b), those regulations may, in particular, make different provision in the case of bodies whose principal objective in providing finance as mentioned in sub-paragraph (2)(a) is to invest directly in enterprises that use the money raised for the purposes of the business of the enterprise in cases where--

(a) that business does not include the provision of finance for other enterprises, or

(b) if it includes any such provision, the nature and extent of that provision satisfies such conditions as the Treasury may, by regulations, prescribe.

(7) Where the Secretary of State accredits a body of the kind mentioned in sub-paragraph (6), he shall specify in the accreditation that the body is accredited as a retail community development finance institution.

Terms and conditions of accreditation

5 (1) An accreditation under this Schedule shall--

(a) be made on--

(i) such terms as regulations may require, and

(ii) such other terms as the Secretary of State considers appropriate, and

(b) be made conditional upon compliance with--

(i) such requirements as regulations may require, and

(ii) such other requirements as the Secretary of State considers appropriate.

(2) The requirements that may be imposed by virtue of sub-paragraph (1)(b) include requirements relating to the provision of information.

(3) Regulations may--

(a) make provision for appeals to the Special Commissioners against refusals to grant accreditation under this Schedule;

(b) make provision about the consequences of a failure to comply with any requirement of an accreditation, including--

(i) provision for the withdrawal of the accreditation with effect from the time of the failure or a later time; and

(ii) provision for the imposition of penalties;

(c) make provision for the making of decisions by the Secretary of State as to any matter required to be decided for the purposes of the regulations;

(d) make different provision for different cases or circumstances or in relation to different areas; and

(e) make such incidental, supplemental, transitional and consequential provision as appears to the Treasury to be necessary or expedient.

(4) In this paragraph "regulations" means regulations made by the Treasury.

Delegation of Secretary of State's functions

6 The Secretary of State may delegate any functions conferred on him by or under this Part.

Period of accreditation

7 (1) An accreditation has effect for a period of three years beginning on such day as may be specified in the accreditation, being a day which is no earlier than--

(a) if the body is not accredited under this Schedule at the time the application is made, the day the accreditation is granted, and

(b) if the body is so accredited, the time the body's current accreditation expires.

This is subject to sub-paragraphs (2) and (3).

(2) Where the application for an accreditation is made before 6th April 2003, the accreditation may specify that it is to have effect for a period--

(a) beginning on 17th April 2002 or such later day as may be specified in the accreditation, and

(b) ending immediately before the third anniversary of the day the accreditation is granted.

(3) Where the body is accredited at the time the application is made and it makes a request under this sub-paragraph, the new accreditation may specify that the existing accreditation is to be treated for the purposes of this Schedule (including sub-paragraph (1)(b) above) as expiring immediately before the grant of the new accreditation (if it would otherwise expire at a later time).

(4) This paragraph has effect subject to paragraph 5(3)(b) (power to provide for the withdrawal of accreditation).

Part 3 Qualifying investments

Introduction

8 For the purposes of this Schedule the investment is a "qualifying investment" in the CDFI if--

(a) the investment consists of--

(i) a loan in relation to which the conditions of paragraph 9 are satisfied,

(ii) securities in relation to which the conditions of paragraph 10 are satisfied, or

(iii) shares in relation to which the conditions of paragraph 11 are satisfied;

(b) the investor receives from the CDFI a valid tax relief certificate in relation to the investment (see paragraph 12); and

Conditions to be satisfied in relation to loans

9 (1) The first condition of this paragraph is that either--

(a) the CDFI receives from the investor, on the investment date, the full amount of the loan, or

(b) if the loan agreement authorises the CDFI to draw down amounts of the loan over a period of time, the end of that period is not later than 18 months after the investment date.

(2) The second condition is that the loan must not carry any present or future right to be converted into or exchanged for a loan which is, or securities, shares, or other rights which are, redeemable within the five year period.

(3) The third condition is that the loan must not have been made on terms that allow any person to require--

(a) the repayment during the first two years of the five year period of any of the loan capital advanced in those two years,

(b) the repayment during the third year of that period of more than 25% of the loan capital outstanding at the end of those two years,

(d) the repayment before the end of that period of more than 75% of that loan capital.

(4) For the purposes of sub-paragraph (3), any requirement arising as a consequence of a failure of the CDFI to fulfil any obligation of the loan agreement shall be disregarded if that obligation--

(a) is imposed by reason only of the commercial risks to which the investor is exposed as lender under that agreement, and

(b) is no more likely to be breached than any obligation that might reasonably have been agreed in respect of the loan in the absence of this Schedule.

(5) The Treasury may by order substitute for any percentage for the time being specified in sub-paragraph (3) such other percentage as they think fit; and any such substitution shall have effect in relation to loans made by a person on or after such date as may be specified in the order.

Conditions to be satisfied in relation to securities

10 (1) The first condition of this paragraph is that the securities must be--

(a) subscribed for wholly in cash, and

(b) fully paid for on the investment date.

(2) The second condition is that the securities must not carry--

(a) any present or future right to be redeemed within the five year period, or

(b) any present or future right to be converted into or exchanged for a loan which is, or securities, shares or other rights which are, redeemable within that period.

Conditions to be satisfied in relation to shares

11 (1) The first condition of this paragraph is that the shares must be--

(a) subscribed for wholly in cash, and

(b) fully paid up on the investment date.

Shares are not fully paid up for the purposes of paragraph (b) if there is any undertaking to pay cash to the CDFI at a future date in connection with the acquisition of the shares.

(2) The second condition is that the shares must not carry--

(a) any present or future right to be redeemed during the five year period, or

(b) any present or future right to be converted into or exchanged for a loan which is, or securities, shares or other rights which are, redeemable within that period.

Tax relief certificates

12 (1) For the purposes of this Schedule a "tax relief certificate" means a certificate issued by the CDFI in respect of the investment, which is in such form as the Board may specify.

(2) The CDFI must not, in relation to an accreditation period--

(a) if it is accredited for that period as a retail community development finance institution (see paragraph 4(7)), issue tax relief certificates in respect of investments made in the CDFI in that period with an aggregate value exceeding £10 million, and

(b) in any other case, issue tax relief certificates in respect of investments made in the CDFI in that period with an aggregate value exceeding £20 million.

(3) For the purposes of sub-paragraph (2) the value of an investment made in the CDFI is--

(a) if the investment consists of a loan--

(i) the amount of the loan, or

(ii) where the loan agreement authorises the CDFI to draw down amounts of the loan over a period of time, the amount committed under the loan agreement; and

(b) if the investment consists of securities or shares, the amount subscribed for them.

(4) The Treasury may, by order, substitute for any amount for the time being specified in sub-paragraph (2) such other amount as they think fit.

(5) Any such substitution shall have effect in relation to such accreditation periods as may be specified in the order; and those periods may, if the substitution increases the amount for the time being specified in sub-paragraph (2), include periods beginning before the order takes effect.

(6) Any tax relief certificate issued wholly or partly in contravention of sub-paragraph (2) is invalid.

(7) A body is liable to a penalty not exceeding £3000 if it issues a tax relief certificate which is made fraudulently or negligently.

Pre-arranged protection against risks

13 (1) Any arrangements--

(a) under which the investment is made, or

(b) made, before the investor makes the investment, in relation to or in connection with the making of the investment,

must not include arrangements ("excluded arrangements") the main purpose of which, or one of the main purposes of which, is (by means of any insurance, indemnity or guarantee or otherwise) to provide partial or complete protection for the investor against what would otherwise be the risks attached to making the investment.

(2) For the purposes of sub-paragraph (1), excluded arrangements do not include any arrangements which are confined to the provision for the investor of any such protection against those risks as might reasonably be expected to be provided for commercial reasons if the investment were made in the course of a business of banking.

(3) For the purposes of this paragraph "arrangements" includes any scheme, agreement or understanding, whether or not legally enforceable.

Part 4 General conditions

No control of CDFI by investor

14 (1) The investor must not control the CDFI at any time during the five year period.

(2) In this paragraph references to the investor include any person connected with the investor.

(3) Where the CDFI is a body corporate, the question whether the investor controls the CDFI shall, for the purposes of this paragraph, be determined in accordance with section 840 of the Taxes Act 1988.

This is subject to sub-paragraph (6).

(4) In any other case, the investor shall be treated, for those purposes, as having control of the CDFI if he has power to secure--

(a) by means of the possession of voting power in the CDFI, or

(b) by virtue of any powers conferred by the constitution of, or any other document regulating, the CDFI,

that the affairs of the body are conducted in accordance with his wishes.

This is subject to sub-paragraphs (5) and (6).

(5) Where the CDFI is a partnership and the investor is a member of that partnership, for the purposes of determining in accordance with this paragraph whether the investor controls the CDFI the other members of that partnership shall not, by virtue of their membership of the CDFI, be treated as partners of the investor.

(6) In determining whether the investor controls the CDFI there shall be attributed to the investor (to the extent that it would not otherwise be the case)--

(a) any rights or powers that the investor is entitled to acquire at a future date or will, at a future date, become entitled to acquire, and

(b) any rights or powers which another person holds on behalf of the investor or may be required to exercise, by direction, on his behalf.

Beneficial ownership

15 (1) The investor must be the sole beneficial owner of the investment when it is made.

(2) Where the investment consists of a loan, the person beneficially entitled to repayment of the loan shall be treated as the beneficial owner of the loan for the purposes of this Schedule.

Investor must not be accredited

16 The investor must not be accredited as a community development finance institution under this Schedule (see Part 2) on the investment date.

No acquisition of share in partnership

17 (1) Where the CDFI is a partnership, the investment must not consist of or include any amount of capital contributed by the investor on becoming a member of the partnership.

(2) For this purpose, the amount of capital contributed by the investor on becoming a member of the partnership includes any amount which--

(a) purports to be provided by the investor by way of loan capital, and

(b) is accounted for as partners' capital in the accounts of the partnership.

No tax avoidance purpose

18 The investment must not be made as part of a scheme or arrangement the main purpose of which, or one of the main purposes of which, is the avoidance of tax.

Part 5 Form of relief

Individual investors

19 (1) This paragraph applies where the investor is--

(a) an individual, and

(b) eligible for relief in respect of the investment (see paragraph 1(1)).

(2) Where the investor makes a claim in respect of a loan, securities or shares for a relevant tax year in accordance with this Part, the amount of his liability for that year to income tax on his total income shall be reduced by the smaller of--

(a) 5% of the invested amount in respect of that loan or those securities or shares for the year, and

(b) the amount which reduces his liability to zero.

(3) For this purpose the "relevant" tax years are--

(a) the tax year in which the investment date falls, and

(b) each of the four subsequent tax years.

(4) The investor is entitled to make a claim for relief for a relevant tax year if--

(a) it appears to him that the conditions for the relief are for the time being satisfied, and

(b) he has received a tax relief certificate (see paragraph 12) relating to the investment from the CDFI,

but no claim may be made before the end of the tax year to which it relates.

(5) Sub-paragraph (4) is subject to the following provisions--

(a) paragraph 22 (loans: no claim after disposal or excessive repayments or receipts of value);

(b) paragraph 23 (securities or shares: no claim after disposal or excessive receipts of value);

(6) In determining for the purposes of sub-paragraph (2) the amount of income tax to which the investor would be liable apart from this paragraph, no account shall be taken of--

(a) any income tax reduction under Chapter 1 of Part 7 of the Taxes Act 1988 or under section 347B of that Act;

(b) any income tax reduction under section 353(1A) of that Act;

(c) any relief by way of a reduction of liability to tax which is given in accordance with any arrangements having effect by virtue of section 788, or by way or a credit under section 790(1), of that Act;

(d) any tax at the basic rate on so much of that person's income as is income the income tax on which he is entitled to charge against any other person or to deduct, retain or satisfy out of any payment.

Company investors

20 (1) This paragraph applies where the investor is--

(a) a company, and

(b) eligible for relief in respect of the investment (see paragraph 1(1)).

(2) Where the investor makes a claim for a relevant accounting period in respect of a loan, securities or shares in accordance with this Part, the amount of its liability for corporation tax for that period shall be reduced by the smaller of--

(a) 5% of the invested amount in respect of that loan or those securities or shares for the period, and

(b) the amount which reduces the investor's liability to zero.

(3) For this purpose the "relevant" accounting periods are--

(a) the accounting period in which the investment date falls, and

(b) each of the accounting periods in which the subsequent four anniversaries of that date fall.

(4) The investor is entitled to make a claim for relief for a relevant accounting period if--

(a) it appears to the investor that the conditions for the relief are for the time being satisfied, and

(b) it has received a tax relief certificate (see paragraph 12) relating to the investment from the CDFI,

but no claim may be made before the end of the accounting period to which it relates.

(5) Sub-paragraph (4) is subject to the following provisions--

(a) paragraph 22 (loans: no claim after disposal or excessive repayments or receipts of value);

(b) paragraph 23 (securities or shares: no claim after disposal or excessive receipts of value);

(d) paragraph 25 (accreditation of the investor).

Determination of "the invested amount"

21 (1) This paragraph applies for the purpose of determining "the invested amount" in respect of any loan, securities or shares comprised in the investment.

This is subject to paragraphs 31(2) and 38 (which adjust "the invested amount" in certain cases where value is received).

(2) In the case of a loan, the invested amount is--

(a) for the tax year or accounting period in which the investment date falls, the average capital balance for the first year of the five year period;

(b) for the tax year or accounting period in which the first anniversary of the investment date falls, the average capital balance for the second year of the five year period;

(i) the average capital balance for the period of one year beginning with the anniversary of the investment date falling in the tax year or accounting period concerned, or

(ii) if less, the average capital balance for the period of six months beginning eighteen months after the investment date.

(3) In the case of securities or shares, the invested amount for a tax year or accounting period is the amount subscribed by the investor for the securities or shares.

(4) For the purposes of this paragraph, the average capital balance of the loan for a period is the mean of the daily balances of capital outstanding during the period.

Loans: no claim after disposal or excessive repayments or receipts of value

22 (1) Where the investment consists of a loan, no claim may be made in respect of a tax year or accounting period if--

(a) the investor disposes of the whole or any part of the loan before the qualifying date relating to that year or period,

(b) at any time after the investment is made but before that qualifying date, the amount of the capital outstanding on the loan is reduced to nil, or

(c) before that qualifying date, paragraphs (a) and (b) of paragraph 30(1) (repayments of loan in five year period exceeding permitted limits) apply in relation to the investment (whether by virtue of paragraph 31 (receipts of value treated as repayments) or otherwise).

For the purposes of paragraph (a) any repayment of the loan is to be disregarded.

(2) For the purposes of this paragraph the qualifying date relating to a tax year or accounting period is the anniversary of the investment date next occurring after the end of that year or period.

Securities or shares: no claim after disposal or excessive receipts of value

23 (1) Where the investment consists of securities or shares, a claim made in respect of a tax year or accounting period must relate only to those securities or shares held by the investor, as sole beneficial owner, continuously throughout the period--

(a) beginning when the investment is made, and

(b) ending immediately before the qualifying date relating to the tax year or accounting period.

(2) No claim for relief may be made in relation to a tax year or accounting period if before the qualifying date relating to that year or period paragraphs (a) to (d) of paragraph 32(1) (receipts of value in five year period exceeding permitted limits) apply in relation to the investment or any part of it.

(3) For the purposes of this paragraph, the qualifying date relating to a tax year or accounting period is the anniversary of the investment date next occurring after the end of that year or period.

Loss of accreditation by the CDFI

24 (1) Where the CDFI ceases to be accredited under Part 2 with effect from a time ("the relevant time") within the five year period, no claim for relief relating to the investment may be made by the investor--

(a) for the relevant tax year or accounting period, or

(b) for any later tax year or accounting period.

(2) For the purposes of sub-paragraph (1) the relevant tax year or accounting period is--

(a) where the relevant time falls within the first year of the five year period, the tax year or accounting period in which the investment date fell, and

(b) in any other case, the year or period in which fell the last anniversary of that date before the relevant time (or, if the relevant time itself falls on an anniversary of the investment date, the year or period in which that anniversary falls).

Accreditation of the investor

25 (1) Where the investor is a company and becomes accredited with effect from a time ("the relevant time") within the five year period, no claim for relief relating to the investment may be made by the investor for the relevant accounting period or any later period.

(2) For the purposes of sub-paragraph (1) the relevant accounting period is--

(a) where the relevant time falls within the first year of the five year period, the accounting period in which the investment date fell, and

(b) in any other case, the period in which fell the last anniversary of that date before the relevant time (or, if the relevant time itself falls on an anniversary of the investment date, the period in which that anniversary falls).

Attribution

26 (1) In this Schedule--

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