Finance Act 1988 (c. 39)

(The document as of February, 2008)

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(b) the chargeable amounts of both husband and wife include gains treated as accruing by virtue of paragraph 1 above,

the extent to which the gains treated as accruing to the husband and the gains treated as accruing to the wife are regarded as having been taxed at a rate equivalent to the higher rate of income tax shall be proportionate to the amounts of those gains.

Meaning of "settlor" etc.

6 (1) For the purposes of this Schedule a person is a settlor in relation to a settlement if the settled property consists of or includes property originating from him.

(2) In this Schedule--

(a) references to settled property (and to property comprised in a settlement), in relation to any settlor, are references only to property originating from that settlor, and

(b) references to income arising under a settlement, in relation to any settlor, are references only to income originating from that settlor.

(3) References in this paragraph to property originating from a settlor are references to--

(a) property which that settlor has provided directly or indirectly for the purposes of the settlement,

(b) property representing that property, and

(c) so much of any property which represents both property so provided and other property as, on a just apportionment, represents the property so provided.

(4) References in this paragraph to income originating from a settlor are references to--

(a) income from property originating from that settlor, and

(b) income provided directly or indirectly by that settlor.

(5) In sub-paragraphs (3) and (4) above--

(a) references to property or income which a settlor has provided directly or indirectly include references to property or income which has been provided directly or indirectly by another person in pursuance of reciprocal arrangements with that settlor, but do not include references to property or income which that settlor has provided directly or indirectly in pursuance of reciprocal arrangements with another person, and

(b) references to property which represents other property include references to property which represents accumulated income from that other property.

Information

7 (1) An inspector may by notice require any person who is or has been a trustee of, a beneficiary under, or a settlor in relation to, a settlement to give him within such time as he may direct, not being less than 28 days, such particulars as he thinks necessary for the purposes of this Schedule.

(2) In the first column in the Table in section 98 of the [1970 c. 9.] Taxes Management Act 1970 (penalty for failure to give particulars etc.) there shall be added at the end--

" Paragraph 7(1) of Schedule 10 to the Finance Act 1988. "

Shares in non-resident companies

8 The reference in paragraph 1(1)(a) above to gains accruing to trustees from the disposal of settled property includes a reference to gains treated as accruing to them under section 15 of the [1979 c. 14.] Capital Gains Tax Act 1979 (non-resident companies) and the reference in paragraph 1(1)(b) above to deductions in respect of disposals of the settled property includes a reference to deductions on account of losses treated under that section as accruing to the trustees.

Maintenance funds for historic buildings

9 Where the trustees of a settlement have elected that section 691(2) of the Taxes Act 1988 (certain income of maintenance funds for historic buildings not to be income of settlor etc.) shall have effect in the case of any settlement or part of a settlement in relation to a year of assessment, the preceding provisions of this Schedule shall not apply in relation to the settlement or part for the year.

Commencement

10 This Schedule shall have effect for the year 1988-89 and subsequent years of assessment.

Section 114.

SCHEDULE 11 Capital Gains Indexation: Groups and Associated Companies

Debts

1 (1) Subject to sub-paragraph (3) below, where--

(a) there is a disposal by a company of a linked company debt on a security owed by another company, and

(b) the two companies are linked companies immediately before the disposal,

there shall be no indexation allowance on the disposal.

(2) Subject to sub-paragraph (3) below, where--

(a) there is a disposal by a company of a debt on a security owed by another company which is not a linked company debt on a security, and

(b) the two companies are linked companies immediately before the disposal,

then, in ascertaining any indexation allowance due on the disposal, RD as defined in section 87(2) of the [1982 c. 39.] Finance Act 1982 shall be taken as the retail prices index for the first month after the acquisition of the debt in which the two companies were linked companies (or, if later, March 1982).

(3) Where--

(a) there is a disposal by a company of a debt on a security owed by another company,

(b) the debt constituted or formed part of the new holding received by the company making the disposal on a reorganisation, and

neither of those sub-paragraphs shall apply in relation to the disposal, but any indexation allowance which, apart from this sub-paragraph, would be due on the disposal shall be reduced by such amount as appears to the inspector, or on appeal the Commissioners concerned, to be just and reasonable.

(4) For the purposes of this paragraph a debt on a security owed by a company is a linked company debt on a security where immediately after its acquisition by the company making the disposal the two companies were linked companies.

2 Where--

(a) there is a disposal by a company of a debt on a security owed by any person,

(b) the company and that person are not linked companies immediately before the disposal, and

paragraph 1 above shall have effect if and to the extent that it would if the debt were owed by that other company.

3 (1) This paragraph applies--

(a) where there is a disposal by a company of--

(i) a holding of redeemable preference shares of another company, or

(ii) a holding of shares, other than redeemable preference shares, of another company which has at all times consisted entirely of, or has at any time included, linked company shares, or

(b) where--

(i) there is a disposal by a company of a holding of shares of another company which is not a holding falling within paragraph (a) above,

(ii) the holding constituted or formed part of the new holding received by the company making the disposal on a reorganisation, and

(iii) but for section 78 of the [1979 c. 14.] Capital Gains Tax Act 1979 that reorganisation (or in a case where the holding disposed of derives, in whole or in part, from assets which were original shares in relation to an earlier reorganisation, that reorganisation or any such earlier reorganisation) would have involved a disposal in relation to which paragraph 1 above would have applied or this paragraph would have applied by virtue of paragraph (a) above,

if the two companies are linked companies immediately before the disposal.

(2) Where this paragraph applies, any indexation allowance which, apart from this paragraph, would be due on the disposal shall be reduced by such amount as appears to the inspector, or on appeal the Commissioners concerned, to be just and reasonable.

(3) For the purposes of this paragraph shares of a company are linked company shares where--

(a) immediately after their acquisition by the company making the disposal the two companies were linked companies,

(b) their acquisition by the company making the disposal was wholly or substantially financed by one or more linked company loans or linked company funded subscriptions (or by a combination of such loans and subscriptions), and

(c) the sole or main benefit which might have been expected to accrue from that acquisition was the obtaining of an indexation allowance on a disposal of the shares.

(4) In sub-paragraph (3) above--

"linked company loan" means a loan made to the company making the disposal by another company where immediately after the acquisition of the shares by the company making the disposal the two companies were linked companies, and
"linked company funded subscription" means a subscription for shares in the company making the disposal by another company where--
(a)
immediately after the acquisition of the shares by the company making the disposal those two companies were linked companies, and
(b)
the subscription was wholly or substantially financed, either directly or indirectly, by one or more linked company subscription-financing loans.

(5) In sub-paragraph (4) above "linked company subscription-financing loan" means a loan made by a company to the subscribing company or any other company where immediately after the acquisition of the shares by the company making the disposal--

(a) the company making the loan, and

(b) the subscribing company, and

were linked companies.

Linked companies

4 For the purposes of this Schedule companies are linked companies if they are members of the same group or are associated with each other; and for the purposes of this paragraph--

(a) "group" means a company which has one or more 51 per cent. subsidiaries together with that subsidiary or those subsidiaries (section 838 (meaning of 51 per cent. subsidiary) of the Taxes Act 1988 having effect for the purposes of this paragraph as for those of the Tax Acts), and

(b) two companies are associated with each other if one controls the other or both are under the control of the same person or persons (section 416(2) to (6) (meaning of control) of the Taxes Act 1988 having effect for the purposes of this paragraph as for those of Part XI of that Act).

Supplementary

5 Where a disposal of a holding of shares follows one or more disposals of the same holding to which section 273(1) of the Taxes Act 1970 (which treats certain intra-group transactions as producing neither a gain nor a loss) applied, paragraph 3(3) to (5) above shall have effect as if the references to the company making the disposal were references to the company which last acquired the asset otherwise than on a disposal to which section 273(1) applied.

6 (1) In this Schedule "redeemable preference shares" means shares in a company which are described as such in the terms of their issue or which fulfil the condition in paragraph (a) below and either or both of the conditions in paragraphs (b) and (c) below--

(a) that, as against other shares in the company, they carry a preferential entitlement to a dividend or to any assets in a winding up or both;

(b) that, by virtue of the terms of their issue, the exercise of a right by any person or the existence of any arrangements, they are liable to be redeemed, cancelled or repaid, in whole or in part;

(i) to which the company which issued the shares is a party, or

(ii) where that company and another company are linked companies at the time of the issue, to which that other company is a party,

the holder has a right to require another person to acquire the shares or is obliged in any circumstances to dispose of them or another person has a right or is in any circumstances obliged to acquire them;

and for the purposes of paragraph (a) above shares are to be treated as carrying a preferential entitlement to a dividend as against other shares if, by virtue of any arrangements, there are circumstances in which a minimum dividend will be payable on those shares but not on others.

(2) In this Schedule the expressions "reorganisation", "original shares" and "new holding" have the meanings given by section 77 of the [1979 c. 14.] Capital Gains Tax Act 1979 except that, in a case where sections 78 and 79 of that Act apply in circumstances other than a reorganisation (within the meaning of section 77 of that Act) by virtue of any other provision of Chapter II of Part IV of that Act (conversion of securities, company reconstructions and amalgamations etc.), those expressions shall be construed as they fall to be construed in sections 78 and 79 as they so apply.

(3) In this Schedule--

"holding", in relation to shares, means a number of shares which are to be regarded for the purposes of the Capital Gains Tax Act 1979 as indistinguishable parts of a single asset,
"indexation allowance" has the same meaning as in Chapter III of Part III of the [1982 c. 39.] Finance Act 1982, and
"security" has the same meaning as in section 82 of the [1979 c. 14.] Capital Gains Tax Act 1979.

Commencement

7 This Schedule shall apply to disposals on or after 15th March 1988.

Section 145.

SCHEDULE 12 Building Societies: Change of Status

Introductory

1 Paragraphs 2 to 7 below apply where there is a transfer of the whole of a building society's business to a company ("the successor company") in accordance with section 97 and the other applicable provisions of the [1986 c. 53.] Building Societies Act 1986.

Gilt-edged securities and other financial trading stock

2 (1) For the purposes of section 100(1) of the Taxes Act 1988 (valuation of trading stock on discontinuance of trade) the society's financial trading stock shall be valued at an amount equal to its cost to the society.

(2) In computing for any corporation tax purpose the profits or gains of a trade carried on by the successor company, such of the assets comprised in the transfer as constituted the society's financial trading stock shall be regarded as acquired by the company at their cost to the society.

(3) In this paragraph "financial trading stock", in relation to a building society, means such of the assets held by the society by virtue of regulations under section 21(7) of the Building Societies Act 1986 (liquid assets etc.) as constitute trading stock for the purposes of section 100 of the Taxes Act 1988.

Capital allowances

3 (1) For the purposes of the allowances and charges provided for by the [1968 c. 3.] Capital Allowances Act 1968 and by Part III of the [1971 c. 68.] Finance Act 1971 (capital allowances) the trade of the society shall not be treated as permanently discontinued and the trade of the successor company shall not be treated as a new trade set up and commenced by the successor company.

(2) There shall be made to or on the successor company in accordance with those Acts all such allowances and charges as would, if the society had continued to carry on the trade, have fallen to be made to or on it, and the amount of any such allowance or charge shall be computed as if the successor company had been carrying on the trade since the society began to do so and as if everything done to or by the society had been done to or by the successor company.

(3) No transfer of assets from the society to the successor company effected by section 97 of the Building Societies Act 1986 shall be treated as giving rise to any such allowance or charge.

Capital gains: assets acquired from society, etc.

4 (1) Where the society and the successor company are not members of the same group at the time of the transfer--

(a) they shall be treated for the purposes of corporation tax on capital gains as if any asset disposed of as part of the transfer were acquired by the successor company for a consideration of such amount as would secure that on the disposal neither a gain nor a loss would accrue to the society, and

(b) if because of the transfer any company ceases to be a member of the same group as the society, that event shall not cause section 278 of the Taxes Act 1970 (which treats a company ceasing to be a member of a group as having sold and reacquired at the time of acquisition assets acquired from another member of the group) to have effect as respects any asset acquired by the company from the society or any other member of the same group.

(2) Where the society and the successor company are members of the same group at the time of the transfer but later cease to be so, that later event shall not cause section 278 to have effect as respects--

(a) any asset acquired by the successor company on or before the transfer from the society or any other member of the same group, or

(b) any asset acquired from the society or any other member of the same group by any company other than the successor company which is a member of the same group at the time of the transfer.

(3) Subject to sub-paragraph (5) below, where a company which is a member of the same group as the society at the time of the transfer--

(a) ceases to be a member of that group and becomes a member of the same group as the successor company, and

(b) subsequently ceases to be a member of that group,

section 278 shall have effect on that later event as respects any relevant asset acquired by the company otherwise than from the successor company as if it had been acquired from the successor company.

(4) In sub-paragraph (3) above "relevant asset" means any asset acquired by the company--

(a) from the society, or

(b) from any other company which is a member of the same group at the time of the transfer,

when the company and the society, or the company, the society and the other company, were members of the same group.

(5) Sub-paragraph (3) above shall not apply if the company which acquired the asset and the company from which it was acquired (one being a 75 per cent. subsidiary of the other) cease simultaneously to be members of the same group as the successor company but continue to be members of the same group as one another.

(6) For the purposes of this paragraph "group" shall be construed in accordance with section 272 of the Taxes Act 1970.

Capital gains: shares, and rights to shares, in successor company

5 (1) Where, in connection with the transfer, there are conferred on members of the society--

(a) any rights to acquire shares in the successor company in priority to other persons, or

(b) any rights to acquire shares in that company for consideration of an amount or value lower than the market value of the shares, or

any such right so conferred on a member shall be regarded for the purposes of capital gains tax as an option (within the meaning of section 137 of the [1979 c. 14.] Capital Gains Tax Act 1979) granted to, and acquired by, him for no consideration and having no value at the time of that grant and acquisition.

(2) Where, in connection with the transfer, shares in the successor company are issued by that company, or disposed of by the society, to a member of the society, those shares shall be regarded for the purposes of capital gains tax--

(a) as acquired by the member for a consideration of an amount or value equal to the amount or value of any new consideration given by him for the shares (or, if no new consideration is given, as acquired for no consideration); and

(b) as having, at the time of their acquisition by the member, a value equal to the amount or value of the new consideration so given (or, if no new consideration is given, as having no value);

but this sub-paragraph is without prejudice to the operation of sub-paragraph (1) above, where applicable.

(3) Sub-paragraph (4) below applies in any case where--

(a) in connection with the transfer, shares in the successor company are issued by that company, or disposed of by the society, to trustees on terms which provide for the transfer of those shares to members of the society for no new consideration; and

(b) the circumstances are such that in the hands of the trustees the shares constitute settled property, within the meaning of the Capital Gains Tax Act 1979.

(4) Where this sub-paragraph applies, then, for the purposes of capital gains tax--

(a) the shares shall be regarded as acquired by the trustees for no consideration;

(b) the interest of any member in the settled property constituted by the shares shall be regarded as acquired by him for no consideration and as having no value at the time of its acquisition;

(c) where a member becomes absolutely entitled as against the trustees to any of the settled property, both the trustees and the member shall be treated as if, on his becoming so entitled, the shares in question had been disposed of and immediately reacquired by the trustees, in their capacity as trustees within section 46(1) of the Capital Gains Tax Act 1979, for a consideration of such an amount as would secure that on the disposal neither a gain nor a loss would accrue to the trustees (and accordingly section 54 of that Act shall not apply in relation to that occasion); and

(d) on the disposal by a member of an interest in the settled property, other than the disposal treated as occurring for the purposes of paragraph (c) above, any gain accruing shall be a chargeable gain (and accordingly section 58(1) of the Capital Gains Tax Act 1979 shall not apply in relation to the disposal).

(5) Where, in connection with the transfer, the society disposes of any shares in the successor company, then, for the purposes of the Capital Gains Tax Act 1979, any gains arising on the disposal shall not be chargeable gains.

(6) In this paragraph--

"free shares", in relation to a member of the society, means any shares issued by the successor company, or disposed of by the society, to that member in connection with the transfer but for no new consideration;
"member", in relation to the society, means a person who is or has been a member of it, in that capacity, and any reference to a member includes a reference to a member of any particular class or description;
"new consideration" means consideration other than--
(a)
consideration provided directly or indirectly out of the assets of the society; or
(b)
consideration derived from a member's shares or other rights in the society.

(7) References in this paragraph to the case where a member becomes absolutely entitled to settled property as against the trustees shall be taken to include references to the case where he would become so entitled but for being an infant or otherwise under disability.

Distributions

6 (1) Where, in connection with the transfer, qualifying benefits are conferred by the society or the successor company on members of the society, the conferring of those benefits shall not be regarded as either--

(a) the making of a distribution, within the meaning of the Corporation Tax Acts; or

(b) the payment or crediting of a dividend for the purposes of section 476 of the Taxes Act 1988 or any regulations under that section (building society interest etc.).

(2) Sub-paragraph (1) above does not preclude any qualifying benefit (and, in particular, any qualifying benefit which in the hands of the recipient would, apart from that sub-paragraph, constitute income for the purposes of income tax) from being a capital distribution for the purposes of section 72 of the [1979 c. 14.] Capital Gains Tax Act 1979, and in that section "distribution" shall be construed accordingly.

(3) In this paragraph "qualifying benefits" means--

(a) any such rights as are mentioned in paragraph 5(1)(a), (b) or (c) above, and any property obtained by the exercise of those rights;

(b) any shares issued or disposed of as mentioned in paragraph 5(2) above;

(c) any shares issued or disposed of, or to which a member becomes entitled, as mentioned in paragraph 5(3) or (4) above, and any interest in the settled property constituted by those shares;

(d) any payment in lieu of a qualifying benefit falling within paragraphs (a) to (c) above;

(e) any distribution made in pursuance of section 100(2)(b) of the [1986 c. 53.] Building Societies Act 1986.

(4) "Member" has the same meaning in this paragraph as in paragraph 5 above.

Contractual savings schemes

7 The following provisions, namely--

(a) section 326 of the Taxes Act 1988 (certain sums to be disregarded for income tax purposes), and

(b) section 149B(4) of the Capital Gains Tax Act 1979 (corresponding provision for capital gains tax purposes),

shall have effect in relation to any terminal bonus, or interest or other sum, payable after the transfer under a savings scheme which immediately before the transfer was a certified contractual savings scheme (within the meaning of section 326) in relation to the society notwithstanding that it ceased to be such a scheme by reason of the transfer.

Stamp duty

8 Section 109 of the [1986 c. 53.] Building Societies Act 1986 (exemption from stamp duty) shall be renumbered as subsection (1) of that section and after that provision as so renumbered there shall be inserted--

" (2) No transfer effected by subsection (6) or (7) of section 97 shall give rise to any liability to stamp duty. "

Section 146.

SCHEDULE 13 Post-Consolidation Amendments

Part I Amendments of the Taxes Act 1988

1 The Taxes Act 1988 shall have effect, and shall be deemed always to have had effect, subject to the amendments specified in paragraphs 2 to 14 of this Schedule.

2 In section 61(4) after the word "where" there shall be inserted the words "there is a change in the persons engaged in carrying on a trade, profession or vocation in partnership and".

3 In section 162(1) after the word "Where" there shall be inserted the words "after 6th April 1976".

4 In section 178(1)(a) after the word "with" there shall be inserted the words "its terms or in accordance with".

5 In section 533(4) after "1949" there shall be inserted the words ", sections 55 to 59 of the Patents Act 1977".

6 In section 591(5) and (6) after the word "made" there shall be inserted the words "by the Board".

7 In section 824--

(a) in subsection (1) the following paragraphs shall be substituted for paragraphs (a) and (b)--

" (a) in the case of income tax or surtax paid by or on behalf of an individual for a year of assessment for which he was resident in the United Kingdom, a repayment of the tax of not less than £25 is made by the Board or an inspector after the end of the 12 months following that year of assessment; or

(b) in the case of the special charge under Part IV of the [1968 c. 44.] Finance Act 1968, a repayment of the charge of not less than £25 is made by the Board or an inspector, " ,

(b) the following subsection shall be inserted after that subsection--

" (1A) In relation to so much (if any) of the last-mentioned period as preceded 6th April 1974, subsection (1) above shall have effect as if the rate of interest specified in it were 6 per cent. per annum (instead of the rate so specified or any other rate in force by virtue of subsection (6) below or section 47(7) of the [1975 c. 45] Finance (No. 2) Act 1975). " ,

(c) in subsection (2) for the words "Subsection (1)" there shall be substituted the words "Subsections (1) and (1A)" and for the words "it applies to a repayment falling within that subsection" there shall be substituted the words "they apply to a repayment falling within subsection (1)",

(d) the following subsection shall be inserted after that subsection--

" (2A) Subsection (1) above shall apply to a repayment made in consequence of a claim under section 228 of the [1952 c. 10.] Income Tax Act 1952 (relief in respect of income accumulated under trusts) as if the repayment were of income tax paid by the claimant for the year of assessment in which the contingency mentioned in that section happened. " ,

(e) in subsection (3) the following paragraph shall be inserted after paragraph (a)--

" (aa) if the repayment is of the special charge, the relevant time, as regards so much of the charge as was paid before the end of the year 1969-70, is the end of that year, and, as regards so much of the charge as was paid in any later year of assessment, is the end of the year of assessment in which it was paid; " , and

(f) in subsection (6) the words "Without prejudice to subsection (1A) above," shall be inserted at the beginning.

8 In section 825--

(a) the following subsection shall be inserted after subsection (2)--

" (2A) In relation to any complete tax month beginning before 6th April 1974 which is contained in the last-mentioned period, subsection (2) above shall have effect as if the rate of interest specified in it were 6 per cent. per annum (instead of the rate so specified or any other rate in force by virtue of subsection (5) below or section 48(6) of the [1975 c. 45.] Finance (No. 2) Act 1975). " , and

(b) in subsection (5) the words "Without prejudice to subsection (2A) above," shall be inserted at the beginning.

9 In paragraph 2 of Schedule 10 after sub-paragraph (c) there shall be inserted the word "or".

10 In paragraph 17(2)(a) of Schedule 15 after the words "but the old policy was" there shall be inserted the word "not".

11 In paragraph 18(2) of that Schedule for "1 to 9" there shall be substituted "1, 2, 3(5) to (11), 4 to 9".

12 In paragraph 4(3)(b) of Schedule 27 for "416" there shall be substituted "75".

13 In paragraph 8 of Schedule 29 for the words "added after paragraph (f)" there shall be substituted the words "substituted for paragraph (g)".

14 In the Table in paragraph 32 of that Schedule the amendments of --

(a) section 55(1)(g) of the [1970 c. 9.] Taxes Management Act 1970,

(b) section 108(9)(b) of the [1980 c. 48.] Finance Act 1980, and

shall be omitted.

15 The repeals made in section 47 of the Finance (No. 2) Act 1975 shall be treated as never having had effect.

Part II Amendments of Other Enactments

The Capital Gains Tax Act 1979 (c. 14)

16 In section 34(4)(a) of the Capital Gains Tax Act 1979 for the words "section 79(1) of the Taxes Act" there shall be substituted the words "section 33(1) of the Taxes Act 1988".

17 In section 149B(1)(c) of that Act for "614(4)" there shall be substituted "614(2)".

18 In section 155(2) of that Act for "282(1) and (2)" there shall be substituted "282".

The Finance Act 1980 (c. 48)

19 In section 101 of the Finance Act 1980 for the words "60 above" there shall be substituted the words "468(5) of the Taxes Act 1988".

20 In section 109(8)(b) of that Act for the words "Part II of that Act" there shall be substituted the words "Chapter V of Part XII of the Taxes Act 1988".

The Finance Act 1981 (c. 35)

21 In section 110 of the Finance Act 1981 for the words "21(1) of the [1970 c. 24.] Finance Act 1970" there shall be substituted the words "592(1) of the Taxes Act".

The Finance Act 1984 (c. 43)

22 In section 80(5)(b) of the Finance Act 1984 for the words "13 of the [1975 c. 22] Oil Taxation Act 1975" there shall be substituted the words "492 of the Taxes Act 1988".

The Finance Act 1986 (c. 41)

23 In section 94(5) of the Finance Act 1986 for the words "535 of the Taxes Act" there shall be substituted the words "841 of the Taxes Act 1988".

The Finance Act 1987 (c. 16)

24 The repeals made by the Finance Act 1987 in section 47 of the [1975 c. 45] Finance (No. 2) Act 1975 shall be treated as never having had effect.

Commencement

25 The amendments made by paragraphs 16 to 23 of this Schedule shall be treated for the purposes of their commencement as if they had been made by the Taxes Act 1988.

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