Energy Act 2004 (c. 20)

(The document as of February, 2008)

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Continuity in relation to loan relationships

11 (1) This paragraph applies if, in consequence of a section 39 scheme, the NDA or a subsidiary of the NDA replaces a person as a party to a loan relationship.

(2) Chapter 2 of Part 4 of the Finance Act 1996 (c. 8) is to have effect in relation to the time when the transfer takes effect and any later time as if--

(a) the NDA or its subsidiary had been a party to the loan relationship at the time when the transferor became a party to it and at all times since that time; and

(b) the loan relationship to which the NDA or its subsidiary is a party after the time when the transfer takes effect is the same loan relationship as that to which, by virtue of paragraph (a), it is treated as having been a party before that time.

(3) Expressions used in this paragraph and in Chapter 2 of Part 4 of the Finance Act 1996 have the same meanings in this paragraph as in that Chapter.

Continuity in relation to derivative contracts

12 (1) This paragraph applies if, in consequence of a section 39 scheme, the NDA or a subsidiary of the NDA replaces a person as a party to a derivative contract.

(2) Schedule 26 to the Finance Act 2002 (c. 23) is to have effect in relation to the time when the transfer takes effect and any later time as if--

(a) the NDA or its subsidiary had been a party to the derivative contract at the time when the transferor became a party to it and at all times since that time; and

(b) the derivative contract to which the NDA or its subsidiary is a party after the time when the transfer takes effect is the same derivative contract as that to which, by virtue of paragraph (a), it is treated as having been a party before that time.

(3) Expressions used in this paragraph and in Schedule 26 to the Finance Act 2002 have the same meanings in this paragraph as in that Schedule.

Continuity in relation to transfer of intangible assets

13 (1) Where--

(a) property is transferred in accordance with a section 39 scheme to the NDA or a subsidiary of the NDA, and

(b) the property transferred includes a chargeable intangible asset of the transferor,

the transfer of that asset is to be treated for the purposes of Schedule 29 to the Finance Act 2002 as a tax neutral transfer.

(2) Where, in the case of a transfer in accordance with a section 39 scheme of any property to the NDA or a subsidiary of the NDA--

(a) the property transferred includes an asset which is not a chargeable intangible asset of the transferor, but

(b) that asset falls to be treated after the transfer as a chargeable intangible asset of the NDA or its subsidiary,

that asset shall be treated as acquired by the NDA or its subsidiary for an amount equal to the amount of the consideration determined for the purposes of paragraph 3(2) of this Schedule.

(3) Expressions used in this paragraph and in Schedule 29 to the Finance Act 2002 have the same meanings in this paragraph as in that Schedule.

Chargeable intangible assets: degrouping charges

14 (1) This paragraph applies if a company ("the degrouped company")--

(a) acquired an intangible fixed asset from another company at a time when both were members of the same group of companies ("the old group"); and

(b) ceases by virtue of a transfer to the NDA or a subsidiary of the NDA in accordance with a section 39 scheme to be a member of the old group.

(2) Paragraph 58 of Schedule 29 to the Finance Act 2002 (company ceasing to be member of group) is not to treat the degrouped company as having, by virtue of the transfer, sold and immediately reacquired the asset.

(3) Where sub-paragraph (2) has applied to an asset, paragraph 58 of Schedule 29 to the Finance Act 2002 (c. 23) is to have effect on and after the first subsequent occasion on which the degrouped company ceases to be a member of a group of companies ("the new group") as if--

(a) the degrouped company, and

(b) the company from which it acquired the asset,

had been members of the new group at the time of acquisition.

(4) Expressions used in this paragraph and in paragraph 58 of Schedule 29 to the Finance Act 2002 have the same meanings in this paragraph as in that paragraph.

Computation of profits and losses in respect of transfer of trade

15 (1) This paragraph applies where, in consequence of a section 39 scheme--

(a) a BNFL company ceases to carry on a trade or a part of a trade; and

(b) an NDA group member begins to carry on the trade or that part of it.

(2) For the purpose of computing, in relation to the time when the scheme comes into force and subsequent times, the relevant trading profits or losses of the BNFL company and the NDA group member--

(a) the trade or part is to be treated as having been a separate trade at the time of its commencement and as having been carried on by the NDA group member at all times since its commencement as a separate trade; and

(b) the trade carried on by the NDA group member after the time when the section 39 scheme comes into force is to be treated as the same trade as that which it is treated, by virtue of paragraph (a), as having carried on as a separate trade before that time.

(3) This paragraph is subject to paragraph 11.

(4) In this paragraph--

"BNFL company" means BNFL or a subsidiary of BNFL;
"NDA group member" means the NDA or a subsidiary of the NDA;
"relevant trading profits and losses" means profits or losses under Case I of Schedule D in respect of the trade or part of a trade in question.

Part 2 Transfers relating to BNFL or the UKAEA etc.

Application of Part 2 of Schedule

16 (1) This Part of this Schedule applies to a transfer if--

(a) it is a transfer in accordance with a section 39 scheme of securities of a BNFL company or of property, rights or liabilities of a BNFL company; and

(b) the transferee is a publicly owned company which is not a subsidiary of the NDA.

(2) This Part of this Schedule also applies to a transfer if it is a transfer in accordance with a section 39 scheme to a transferee falling within sub-paragraph (3) of--

(a) property, rights or liabilities of the UKAEA;

(b) securities of a wholly-owned subsidiary of the UKAEA; or

(3) The transferee falls within this sub-paragraph if it is--

(a) a publicly owned company which is not a subsidiary of the NDA; or

(b) the UKAEA.

(4) In this paragraph "BNFL company" means BNFL or a wholly-owned subsidiary of BNFL.

Application of rules for reorganisations under same ownership

17 Where the conditions set out in subsection (1) of section 343 of the Taxes Act (company reconstructions without a change of ownership) are satisfied in relation to a transfer to which this Part of this Schedule applies, that section shall have effect in relation to the transfer with the omission of subsection (4) (which restricts the losses that may be carried forward to the excess of relevant liabilities over relevant assets).

Chargeable gains: assets to be treated as disposed without a gain or a loss

18 (1) This paragraph applies for the purposes of the 1992 Act where an asset is transferred by a transfer to which this Part of this Schedule applies.

(2) The asset shall be treated as disposed of to the transferee for a consideration of such amount as would secure that, on the disposal, neither a gain nor a loss accrues to the transferor.

Chargeable gains: degrouping charges

19 (1) This paragraph applies if a company ("the degrouped company")--

(a) acquired an asset from another company at a time when both were members of the same group of companies ("the old group"); and

(b) ceases by virtue of a transfer to which this Part of this Schedule applies to be a member of the old group.

(2) Section 179 of the 1992 Act (company ceasing to be member of group) is not to treat the degrouped company as having by virtue of the transfer sold and immediately reacquired the asset.

(3) Where sub-paragraph (2) has applied to an asset, section 179 of the 1992 Act is to have effect on and after the first subsequent occasion on which the degrouped company ceases to be a member of a group of companies ("the new group") as if--

(a) the degrouped company, and

(b) the company from which it acquired the asset,

had been members of the new group at the time of acquisition.

(4) Expressions used in this paragraph and in section 179 of the 1992 Act have the same meanings in this paragraph as in that section.

Chargeable gains: disposal of debts

20 (1) This paragraph applies if--

(a) a debt owed to any person is transferred by a transfer to which this Part of this Schedule applies; and

(b) the transferor would (apart from this paragraph) be the original creditor in relation to that debt for the purposes of section 251 of the 1992 Act (disposal of debts).

(2) The 1992 Act is to have effect as if the transferee (and not the transferor) were the original creditor for those purposes.

Capital allowances: transfer of plant or machinery

21 (1) This paragraph applies where--

(a) property transferred by a transfer to which this Part of this Schedule applies includes plant or machinery; and

(b) section 343 of the Taxes Act does not apply in relation to the transfer of the plant or machinery.

(2) For the purposes of Part 2 of the 2001 Act (capital allowances for plant and machinery), the transferee is to be treated--

(a) as having incurred capital expenditure on the provision of the plant or machinery at the time of the transfer; and

(b) as having owned the plant or machinery as a result of having incurred that expenditure.

(3) The amount of that expenditure is to be treated as being the book value of the plant or machinery.

(4) For the purposes of the application of section 61 of that Act in relation to the transferor the disposal value of the plant or machinery is to be treated as being the book value of the plant or machinery.

(5) The references in this paragraph to the book value of the plant or machinery are references to the amount which, in accordance with generally accepted accounting practice (within the meaning of the Tax Acts)--

(a) was recognised as its value in the accounts of the transferor at the time of the transfer; or

(b) should have been so recognised at that time.

(6) Expressions used in this paragraph and in Part 2 of the 2001 Act have the same meanings in this paragraph as in that Part.

Capital allowances: transfer not to be transaction between connected persons

22 For the purposes of Part 2 of the 2001 Act references in that Part to a transaction (however described) between connected persons (within the meaning of section 839 of the Taxes Act) are not to include references to a transfer to which this Part of this Schedule applies.

Continuity in relation to loan relationships

23 (1) This paragraph applies if, in consequence of a transfer to which this Part of this Schedule applies, the transferee replaces a person as a party to a loan relationship.

(2) Chapter 2 of Part 4 of the Finance Act 1996 (c. 8) is to have effect in relation to the time when the transfer takes effect and any later time as if--

(a) the transferee had been a party to the loan relationship at the time when the transferor became a party to it and at all times since that time; and

(b) the loan relationship to which the transferee is a party after the time when the transfer takes effect is the same loan relationship as that to which, by virtue of paragraph (a), it is treated as having been a party before that time.

(3) Expressions used in this paragraph and in Chapter 2 of Part 4 of the Finance Act 1996 (c. 8) have the same meanings in this paragraph as in that Chapter.

Continuity in relation to derivative contracts

24 (1) This paragraph applies if, in consequence of a transfer to which this Part of this Schedule applies, the transferee replaces a person as a party to a derivative contract.

(2) Schedule 26 to the Finance Act 2002 (c. 23) is to have effect in relation to the time when the transfer takes effect and any later time as if--

(a) the transferee had been a party to the derivative contract at the time when the transferor became a party to it and at all times since that time; and

(b) the derivative contract to which the transferee is a party after the time when the transfer takes effect is the same derivative contract as that to which, by virtue of paragraph (a), it is treated as having been a party before that time.

(3) Expressions used in this paragraph and in Schedule 26 to the Finance Act 2002 have the same meanings in this paragraph as in that Schedule.

Continuity in relation to transfer of intangible assets

25 (1) Where--

(a) property is transferred by a transfer to which this Part of this Schedule applies, and

(b) the property transferred includes a chargeable intangible asset of the transferor,

the transfer of that asset is to be treated for the purposes of Schedule 29 to the Finance Act 2002 as a tax neutral transfer.

(2) Where, in the case of a transfer of property by a transfer to which this Part of this Schedule applies--

(a) the property transferred includes an asset which is not a chargeable intangible asset of the transferor, but

(b) that asset falls to be treated after the transfer as a chargeable intangible asset of the transferee,

that asset shall be treated as acquired by the transferee for an amount equal to the amount of the consideration determined for the purposes of paragraph 18(2) of this Schedule.

(3) Expressions used in this paragraph and in Schedule 29 to the Finance Act 2002 have the same meanings in this paragraph as in that Schedule.

Chargeable intangible assets: degrouping charges

26 (1) This paragraph applies if a company ("the degrouped company")--

(a) acquired an intangible fixed asset from another company at a time when both were members of the same group of companies ("the old group"); and

(b) ceases by virtue of a transfer to which this Part of this Schedule applies to be a member of the old group.

(2) Paragraph 58 of Schedule 29 to the Finance Act 2002 (c. 23) (company ceasing to be member of group) is not to treat the degrouped company as having, by virtue of the transfer, sold and immediately reacquired the asset.

(3) Where sub-paragraph (2) has applied to an asset, paragraph 58 of Schedule 29 to the Finance Act 2002 is to have effect on and after the first subsequent occasion on which the degrouped company ceases to be a member of a group of companies ("the new group") as if--

(a) the degrouped company, and

(b) the company from which it acquired the asset,

had been members of the new group at the time of acquisition.

(4) Expressions used in this paragraph and in paragraph 58 of Schedule 29 to the Finance Act 2002 have the same meanings in this paragraph as in that paragraph.

Computation of profits and losses: transfer of trade

27 (1) This paragraph applies where, in consequence of a section 39 scheme--

(a) a BNFL company ceases to carry on a trade or a part of a trade; and

(b) a publicly owned company that is not a subsidiary of the NDA (the "transferee company") begins to carry on the trade or that part.

(2) For the purpose of computing, in relation to the time when the scheme comes into force and subsequent times, the relevant trading profits or losses of the BNFL company and the transferee company--

(a) the trade or part is to be treated as having been a separate trade at the time of its commencement and as having been carried on by the transferee company at all times since its commencement as a separate trade; and

(b) the trade carried on by the transferee company after the time when the section 39 scheme comes into force is to be treated as the same trade as that which it is treated, by virtue of paragraph (a), as having carried on as a separate trade before that time.

(3) This paragraph is subject to paragraph 23.

(4) In this paragraph--

"BNFL company" means BNFL or a wholly-owned subsidiary of BNFL; and
"relevant trading profits and losses" means profits or losses under Case I of Schedule D in respect of the trade or part of a trade in question.

Part 3 Transfers relating to relevant site licensees

28 (1) This paragraph applies where, in consequence of a nuclear transfer scheme, a subsidiary of the NDA becomes a relevant site licensee.

(2) For the purposes of the application of the enactments mentioned in sub-paragraph (3) to the assets of the company which has become a relevant site licensee, that company shall be treated as continuing, for so long as it is a relevant site licensee, to be a member of the group of companies of which it was a member immediately before the scheme took effect.

(3) Those enactments are--

(a) the 1992 Act;

(b) Schedule 29 to the Finance Act 2002 (c. 23);

(4) The reference in sub-paragraph (2) to the group of companies of which a company was a member is to be construed--

(a) in relation to the 1992 Act in accordance with the provisions of section 170 of that Act; and

(b) in relation to Schedule 29 to the Finance Act 2002, in accordance with Part 8 of that Schedule.

29 (1) This paragraph applies where--

(a) as a consequence of a transfer in accordance with a nuclear transfer scheme of securities of a subsidiary of the NDA, that subsidiary becomes a relevant site licensee;

(b) as a consequence of a transfer to the NDA or to a subsidiary of the NDA in accordance with such a scheme of securities of a company, that company ceases to be a relevant site licensee; or

(c) there is a transfer in accordance with such a scheme of securities of a company that is a relevant site licensee from one person to another person for purposes connected with securing that the condition in section 27(5)(c) continues to be satisfied in relation to the company.

(2) For the purposes of the 1992 Act, the securities shall be treated as disposed of to the transferee for a consideration of such amount as would secure that, on the disposal, neither a gain nor a loss accrues to the transferor.

30 In this Part of this Schedule "relevant site licensee" has the same meaning as in subsection (4) of section 27 (see subsection (5)).

Part 4 Transfer of Nuclear Liabilities Investment Portfolio

Application of Part 4 of Schedule

31 This Part of this Schedule applies to a transfer to the Secretary of State in accordance with a nuclear transfer scheme containing provision authorised by section 42 of this Act.

Chargeable gains: assets to be treated as disposed without a gain or a loss

32 (1) This paragraph applies for the purposes of the 1992 Act where an asset is transferred by a transfer to which this Part of this Schedule applies.

(2) The asset shall be treated as disposed of to the Secretary of State for a consideration of such amount as would secure that, on the disposal, neither a gain nor a loss accrues to BNFL.

Neutral effect of transfer for loan relationships and derivative contracts

33 No credit or debit shall be required or allowed, in respect of a transfer to which this Part of this Schedule applies, to be brought into account in BNFL's case--

(a) for the purposes of Chapter 2 of Part 4 of the Finance Act 1996 (c. 8) (loan relationships); or

(b) for the purposes of Schedule 26 to the Finance Act 2002 (c. 23).

Part 5 Stamp duty etc.

34 (1) Stamp duty is not to be chargeable--

(a) on a nuclear transfer scheme, or

(b) on an instrument certified by the Secretary of State to the Commissioners of Inland Revenue as made for the purposes of such a scheme, or as made for purposes connected with such a scheme,

except to the extent that the scheme or instrument includes provision in relation to private transfers.

(2) But where, by virtue of sub-paragraph (1), stamp duty is not chargeable at all, or is chargeable only to a reduced extent, on a nuclear transfer scheme or instrument, the scheme or instrument is to be treated as duly stamped only if--

(a) in accordance with section 12 of the Stamp Act 1891 (c. 39) it has been stamped with a stamp denoting either that it is not chargeable to duty or that it has been duly stamped; or

(b) it is stamped with the duty to which it would be chargeable apart from sub-paragraph (1).

(3) An agreement which is made for the purposes of a nuclear transfer scheme or purposes connected with such a scheme is not to give rise to stamp duty reserve tax except to the extent that the agreement relates to private transfers.

(4) In this paragraph--

"instrument" has the same meaning as in the Stamp Act 1891;
"private transfer" means--
(a)
a transfer of any property, right or liability to a person other than the Secretary of State, the NDA or a publicly owned company; or
(b)
the creation of an interest or right in favour of a person other than the Secretary of State, the NDA or a publicly owned company.

Part 6 Supplemental provisions of Schedule

Groups of companies

35 References to a company in the following enactments shall apply to the NDA--

(a) sections 170 to 181 of the 1992 Act;

(b) Part 8 of Schedule 29 to the Finance Act 2002 (c. 23).

Consequential amendment

36 In section 35(3)(d) of the 1992 Act (no gain no loss disposals) after sub-paragraph (xiv) insert--

" (xv) paragraph 3, 18, 29 or 32 of Schedule 9 to the Energy Act 2004. "

Interpretation of Schedule

37 (1) In this Schedule--

"the 1992 Act" means the Taxation of Chargeable Gains Act 1992 (c. 12);
"the 2001 Act" means the Capital Allowances Act 2001 (c. 2);
"exempt activities" has the same meaning as in section 27 of this Act;
"NDA company" has the same meaning as in section 27 of this Act;
"the Nuclear Liabilities Investment Portfolio" means property and rights to which BNFL is entitled and which appear to the Board, from BNFL's published accounts, to represent assets held by BNFL for the purpose of being able to meet costs or liabilities for which the NDA has a financial responsibility under Chapter 1 of Part 1 of this Act;
"section 39 scheme" means a nuclear transfer scheme authorised by section 39 of this Act;
"section 40 scheme" means a nuclear transfer scheme authorised by section 40 of this Act;
"transferee", in relation to a transfer in accordance with a nuclear transfer scheme, means the person to whom the transfer is made;
"transferor", in relation to a transfer in accordance with a nuclear transfer scheme, means the person from whom the transfer is made;
"the Taxes Act" means the Income and Corporation Taxes Act 1988 (c. 1).

(2) Before determining for the purposes of this Schedule whether an asset was comprised at a particular time in the Nuclear Liabilities Investment Portfolio, the Board must consult the Secretary of State.

(3) So far as it relates to corporation tax this Schedule is to be construed as one with the Corporation Tax Acts.

(4) So far as it relates to capital allowances this Schedule is to be construed as one with the 2001 Act.

Section 51

SCHEDULE 10 The Civil Nuclear Police Authority

Part 1 Membership

Appointment

1 (1) The Police Authority shall consist of not fewer than seven and not more than thirteen members.

(2) The members of the Police Authority are to be appointed by the Secretary of State.

(3) The Secretary of State must appoint one of the members of the Police Authority to be its chairman.

Terms of appointment

2 (1) Subject to what follows, each member of the Police Authority is to hold and vacate office as chairman, or otherwise as a member, in accordance with the terms of his appointment.

(2) Each appointment must state the period for which it is made.

(3) That period must not exceed five years; but a person is eligible for re-appointment as chairman, or otherwise as a member of the Police Authority, (on any number of occasions) from the end of a term of office.

(4) A member of the Police Authority may at any time resign his office as the chairman or as a member of the Police Authority (or both) by giving notice to the Secretary of State.

(5) If the Secretary of State is satisfied that sub-paragraph (6) applies to the chairman or another member of the Police Authority, the Secretary of State may, by giving him notice to that effect, remove him from office.

(6) This sub-paragraph applies to a person if--

(a) he is an undischarged bankrupt or has had his estate sequestrated without being discharged;

(b) he is subject to a bankruptcy restrictions order or an interim bankruptcy restrictions order;

(c) he has made an arrangement with his creditors, or has entered into a trust deed for creditors, or has made a composition contract with his creditors;

(d) he has been convicted of an offence;

(e) he has been absent, on at least three consecutive occasions and without the consent of the Police Authority, from meetings of that Authority; or

(f) he is for any other reason incapable of carrying out, or unfit to carry out, the functions of his office.

(7) Oral notice is not effective for the purposes of sub-paragraph (4) or (5).

Remuneration

3 The Police Authority may pay to each of its members such remuneration and allowances as the Secretary of State may determine.

Part 2 Proceedings

Police Authority to regulate procedure

4 (1) The Police Authority may make such arrangements as it thinks fit for regulating its proceedings.

(2) Those arrangements may include--

(a) arrangements for quorums and the making of decisions by a majority;

(b) the establishment of committees and the regulation of their proceedings;

(3) The membership of a committee established by the Police Authority may include employees of that Authority and persons who are neither members nor employees of that Authority.

Validity etc.

5 The validity of proceedings of the Police Authority shall not be affected by--

(a) a failure by the Secretary of State to comply with paragraph 1; or

(b) any other defect in the appointment of a member of the Police Authority.

Part 3 Employees

Employees of the Police Authority

6 (1) The Police Authority may employ such persons as it may determine.

(2) Those persons are to be employed by the Police Authority on such terms and conditions, including terms and conditions as to remuneration, as the Police Authority determines.

(3) The Police Authority may--

(a) pay to or in respect of its employees such pensions, allowances or gratuities, or

(b) with the approval of the Secretary of State, provide and maintain for them such pension schemes (whether contributory or not),

as it determines.

(4) This paragraph is subject to section 58 and any direction to the Police Authority under Schedule 13.

UKAEA pensions for employees of the Police Authority

7 (1) A pension scheme maintained by the UKAEA under paragraph 7(2)(b) of Schedule 1 to the Atomic Energy Authority Act 1954 (c. 32) ("a UKAEA pension scheme") may apply to employees of the Police Authority as it applies to persons to whom it applies apart from this paragraph.

(2) The Secretary of State may, by direction, require the UKAEA to make such modifications of a UKAEA pension scheme as the Secretary of State considers appropriate in respect of the participation of persons in such a scheme by virtue of this paragraph.

(3) A direction under sub-paragraph (2) may also require the UKAEA to make such supplemental, consequential and transitional provision modifying a UKAEA pension scheme as the Secretary of State considers appropriate.

(4) Before giving a direction under this paragraph, the Secretary of State must consult--

(a) the UKAEA;

(b) the Police Authority;

(d) such persons as appear to him to represent the employees likely to be affected by the direction.

(5) The power of the Secretary of State to give directions under this paragraph--

(a) is in addition to the powers of the Secretary of State to give directions to the UKAEA under paragraphs 5 and 6 of Schedule 8 to this Act or section 3 of the Atomic Energy Authority Act 1954; and

(b) is to be disregarded in construing those powers.

(6) The Police Authority must pay such amounts to the UKAEA in respect of the participation of persons in a pension scheme by virtue of this paragraph as are--

(a) agreed between the Police Authority and the UKAEA; or

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