Finance Act 1997 (c. 16)

(The document as of February, 2008)

-- Back --

Page 12

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 | P.17 | P.18 | P.19 | P.20

Review of decisions and appeals

19 (1) Sections 14 to 16 of the [1994 c. 9.] Finance Act 1994 (review and appeals) shall have effect in relation to any decision which--

(a) is contained in an assessment under paragraph 14, 15 or 17 above,

(b) is a decision about whether any amount is due to the Commissioners or about how much is due, and

(c) is made in a case in which the relevant repayment provision is section 137A of the [1979 c. 2.] Customs and Excise Management Act 1979 or the relevant interest provision is paragraph 9 of Schedule 6 to the Finance Act 1994,

as if that decision were such a decision as is mentioned in section 14(1)(b) of that Act of 1994.

(2) Sections 59 and 60 of that Act of 1994 (review and appeal in the case of insurance premium tax) shall have effect in relation to any decision which--

(a) is contained in an assessment under paragraph 14, 15 or 17 above,

(b) is a decision about whether any amount is due to the Commissioners or about how much is due, and

(c) is made in a case in which the relevant repayment provision is paragraph 8 of Schedule 7 to that Act or the relevant interest provision is paragraph 22 of that Schedule,

as if that decision were a decision to which section 59 of that Act applies.

(3) Sections 54 to 56 of the [1996 c. 8.] Finance Act 1996 (review and appeal in the case of landfill tax) shall have effect in relation to any decision which--

(a) is contained in an assessment under paragraph 14, 15 or 17 above,

(b) is a decision about whether any amount is due to the Commissioners or about how much is due, and

(c) is made in a case in which the relevant repayment provision is paragraph 14 of Schedule 5 to that Act or the relevant interest provision is paragraph 29 of that Schedule,

as if that decision were a decision to which section 54 of that Act applies.

Interpretation of Part V

20 (1) In this Part of this Schedule "the Commissioners" means the Commissioners of Customs and Excise.

(2) In this Part of this Schedule "relevant tax", in relation to any assessment, means--

(a) a duty of excise if the assessment relates to--

(i) a repayment of an amount paid by way of such a duty,

(ii) an overpayment of interest under paragraph 9 of Schedule 6 to the [1994 c. 9.] Finance Act 1994, or

(iii) interest on an amount specified in an assessment in relation to which the relevant tax is a duty of excise;

(b) insurance premium tax if the assessment relates to--

(i) a repayment of an amount paid by way of such tax,

(ii) an overpayment of interest under paragraph 22 of Schedule 7 to the Finance Act 1994, or

(iii) interest on an amount specified in an assessment in relation to which the relevant tax is insurance premium tax;

and

(c) landfill tax if the assessment relates to--

(i) a repayment of an amount paid by way of such tax,

(ii) an overpayment of interest under paragraph 29 of Schedule 5 to the [1996 c. 8.] Finance Act 1996, or

(iii) interest on an amount specified in an assessment in relation to which the relevant tax is landfill tax.

(3) For the purposes of this Part of this Schedule notification to a personal representative, trustee in bankruptcy, interim or permanent trustee, receiver, liquidator or person otherwise acting in a representative capacity in relation to another shall be treated as notification to the person in relation to whom he so acts.

Consequential amendment

21 In section 197(2) of the Finance Act 1996 (enactments for which interest rates are set under section 197), after paragraph (d) there shall be inserted " and

(e) paragraph 17 of Schedule 5 to the Finance Act 1997 (interest on amounts repayable in respect of overpayments by the Commissioners in connection with excise duties, insurance premium tax and landfill tax). "

Section 50.

SCHEDULE 6 Assessments for excise duty purposes

Assessment of amounts payable to the Commissioners

1 (1) After section 12 of the Finance Act 1994 there shall be inserted the following sections--

" 12A Other assessments relating to excise duty matters

(1) This subsection applies where any relevant excise duty relief other than an excepted relief--

(a) has been given but ought not to have been given, or

(b) would not have been given had the facts been known or been as they later turn out to be.

(2) Where subsection (1) above applies, the Commissioners may assess the amount of the relief given as being excise duty due from the liable person and notify him or his representative accordingly.

(3) Where an amount has been assessed as due from any person under--

(a) subsection (2) above,

(b) section 94 or 96 of the Management Act, or

(c) section 10, 13, 14, 23 or 24 of the [1979 c. 5.] Hydrocarbon Oil Duties Act 1979,

and notice has been given accordingly, that amount shall, subject to any appeal under section 16 below, be deemed to be an amount of excise duty due from that person and may be recovered accordingly, unless, or except to the extent that, the assessment has subsequently been withdrawn or reduced.

(4) No assessment under any of the provisions referred to in subsection (3) above, or under section 61 or 167 of the Management Act, shall be made at any time after whichever is the earlier of the following times, that is to say--

(a) subject to subsection (6) below, the end of the period of three years beginning with the relevant time; and

(b) the end of the period of one year beginning with the day on which evidence of facts, sufficient in the opinion of the Commissioners to justify the making of the assessment, comes to their knowledge.

(5) Subsection (4) above shall be without prejudice, where further evidence comes to the knowledge of the Commissioners at any time after the making the assessment concerned, to the making of a further assessment within the period applicable by virtue of that subsection in relation to that further assessment.

(6) Subsection (4) above shall have effect as if the reference in paragraph (a) to three years were a reference to twenty years in any case where the assessment has been postponed or otherwise affected by, or the power to make the assessment arises out of, conduct falling within subsection (5)(a) or (b) of section 12 above (construed in accordance with subsection (7) of that section).

12B Section 12A: supplementary provisions

(1) For the purposes of section 12A above and this section, relevant excise duty relief has been given if (and only if)--

(a) an amount of excise duty which a person is liable to pay has been remitted or payment of an amount of excise duty which a person is liable to pay has been waived;

(b) an amount of excise duty has been repaid to a person;

(c) an amount by way of drawback of excise duty has been paid to a person;

(d) an allowance of excise duty in any amount has been made to a person;

(e) an amount by way of rebate has been allowed to a person;

(f) the liability of a person to repay an amount paid by way of drawback of excise duty has been waived;

(g) an amount has been paid to a person under section 20(3) of the Hydrocarbon Oil Duties Act 1979 (payments in respect of contaminated or accidentally mixed oil); or

(h) an amount of relief has been allowed to a person by virtue of section 20AA of that Act (power to allow reliefs), or in accordance with paragraph 10 of Schedule 3 to that Act (power to make regulations for the purpose of relieving from excise duty oil intended for exportation or shipment as stores);

and the amount of the relief is the amount mentioned in relation to the relief in this subsection.

(2) For the purposes of section 12A above the relevant time is--

(a) in the case of an assessment under section 61 of the Management Act, the time when the ship or aircraft in question returned to a place within the United Kingdom;

(b) in the case of an assessment under section 94 of that Act, the time at which the goods in question were warehoused;

(c) in the case of an assessment under that section as it has effect by virtue of section 95 of that Act, the time when the goods in question were lawfully taken from the warehouse;

(d) in the case of an assessment under section 96 of that Act, the time when the goods in question were moved by pipe-line or notified as goods to be moved by pipe-line;

(e) in the case of an assessment under section 167 of that Act--

(i) if the assessment relates to unpaid duty, the time when the duty became payable or, if later, the time when the document in question was delivered or the statement in question was made; and

(ii) if the assessment relates to an overpayment, the time when the overpayment was made;

(f) in the case of an assessment under section 10, 13, 14 or 23 of the [1979 c. 5.] Hydrocarbon Oil Duties Act 1979, the time of the action which gave rise to the power to assess;

(g) in the case of an assessment under section 24(4A) or (4B) of that Act, the time when the rebate was allowed or the oil was delivered without payment of duty (as the case may be);

(h) in the case of an assessment under section 12A(2) above, the time when the relevant excise duty relief in question was given.

(3) In section 12A above "the liable person" means--

(a) in the case of excise duty which has been remitted or repaid under section 130 of the Management Act on the basis that goods were lost or destroyed while in a warehouse, the proprietor of the goods or the occupier of the warehouse;

(b) in the case of a rebate which has been allowed on any oil under section 11 of the Hydrocarbon Oil Duties Act 1979, the person to whom the rebate was allowed or the occupier of any warehouse from which the oil was delivered for home use;

(c) in the case of a rebate allowed on any petrol under section 13A of that Act, the person to whom the rebate was allowed or the occupier of any warehouse from which the petrol was delivered for home use;

(d) in any other case, the person mentioned in subsection (1) above to whom the relief in question was given.

(4) In section 12A above--

• "excepted relief" means any relief which is given by the making of a repayment on a claim made under section 137A of the Management Act;

• "representative", in relation to any person from whom the Commissioners assess an amount as being excise duty due, means his personal representative, trustee in bankruptcy or interim or permanent trustee, any receiver or liquidator appointed in relation to him or any of his property or any other person acting in a representative capacity in relation to him. "

(2) After section 14(1)(b) of that Act there shall be inserted the following paragraph--

" (ba) any decision by the Commissioners to assess any person to excise duty under section 12A(2) above, section 61, 94, 96 or 167 of the Management Act or section 10, 13, 14, 23 or 24 of the [1979 c. 5.] Hydrocarbon Oil Duties Act 1979, or as to the amount of duty to which a person is to be assessed under any of those provisions; " .

(3) In sections 12(8) and 13(7) of that Act (definition of "representative" for the purposes of sections 12 and 13), for "or trustee in bankruptcy," there shall be substituted ", trustee in bankruptcy or interim or permanent trustee,".

Assessments in cases of a deficiency in stores

2 (1) After subsection (7) of section 61 of the [1979 c. 2.] Customs and Excise Management Act 1979 (duty payable where deficiency or excess deficiency discovered in goods on return of ship or aircraft to United Kingdom) there shall be inserted the following subsection--

" (7A) No amount of excise duty shall be payable under subsection (7) above unless the Commissioners have assessed that amount as being excise duty due from the master of the ship or the commander of the aircraft and notified him or his representative accordingly. "

(2) In subsection (8) of that section (duty payable under subsection (7) recoverable as a civil debt) after "duty" there shall be inserted ", other than excise duty,".

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

" (8A) An amount of excise duty assessed as being due under subsection (7A) above shall, unless, or except to the extent that, the assessment has subsequently been withdrawn or reduced and subject to any appeal under section 16 of the [1994 c. 9.] Finance Act 1994, be recoverable summarily as a civil debt. "

(4) In section 1(1) of that Act (interpretation), after the definition of "registered excise dealers and shippers regulations" there shall be inserted--

" "representative", in relation to any person from whom the Commissioners assess an amount as being excise duty due, means his personal representative, trustee in bankruptcy or interim or permanent trustee, any receiver or liquidator appointed in relation to him or any of his property or any other person acting in a representative capacity in relation to him; " .

Assessments in cases of a deficiency in warehoused goods

3 (1) Section 94 of the [1979 c. 2.] Customs and Excise Management Act 1979 shall be amended in accordance with sub-paragraphs (2) to (6) below.

(2) In subsection (3) (power to require payment of duty or repayment of drawback or allowance where warehoused goods are deficient), for the words from "require" to the end there shall be substituted the following paragraphs--

" (a) require the occupier of the warehouse or the proprietor of the goods to pay immediately any duty, other than excise duty, chargeable or deemed under warehousing regulations to be chargeable on the relevant goods or, in the case of goods warehoused on drawback which could not lawfully be entered for home use, an amount equal to any drawback or allowance of such duty paid in respect of the relevant goods;

(b) assess, as being excise duty due from the occupier of the warehouse or the proprietor of the goods, the excise duty chargeable or deemed under warehousing regulations to be chargeable on the relevant goods or, in the case of goods warehoused on drawback which could not lawfully be entered for home use, an amount equal to any drawback or allowance of excise duty paid in respect of the relevant goods. "

(3) After subsection (3) there shall be inserted the following subsection--

" (3A) Where the Commissioners make an assessment under subsection (3)(b) above they shall notify the person assessed or his representative accordingly. "

(4) In subsection (4) for "(3)" there shall be substituted "(3)(a)".

(5) After subsection (4) there shall be inserted the following subsections--

" (4A) If--

(a) the occupier of the warehouse or the proprietor of the goods refuses to pay any amount of excise duty to which he has been assessed under subsection (3)(b) above, and

(b) the conditions set out in subsection (4B) below are fulfilled,

he shall be liable on summary conviction to a penalty of double that amount.

(4B) The conditions are that--

(a) the period of forty-five days referred to in section 14(3) of the [1994 c. 9.] Finance Act 1994 (period during which review may be required) has expired;

(b) on any review under Chapter II of Part I of that Act the Commissioners' decision ("the original decision") in relation to the assessment has been confirmed (or treated as confirmed by virtue of section 15(2) of that Act), or confirmed subject only to a reduction in the amount of duty due under the assessment; and

(c) the final result of any further appeal is that the original decision has been confirmed, subject only to any reduction in the amount of duty due under the assessment; and "final result" means the result of the last of any such appeals, against which no appeal may be made (whether because of expiry of time or for any other reason).

(4C) Where the amount of excise duty due under subsection (3)(b) above is reduced in consequence of a review or appeal, the penalty to which the person assessed is liable under subsection (4A) above shall be a penalty of double the reduced amount. "

(6) After subsection (5) there shall be inserted the following subsection--

" (5A) In this section "the relevant goods" means the missing goods or the whole or any part of the deficiency, as the Commissioners see fit. "

(7) In section 95 of that Act (application of section 94 to certain goods in the course of removal from warehouse), in subsection (2)(b) (section 94 to apply with the omission of references in subsections (3) and (4) to the occupier of the warehouse) for "and (4)" there shall be substituted ", (4) and (4A)".

Assessments in cases of a deficiency in goods moved by pipe-line

4 (1) Section 96 of the [1979 c. 2.] Customs and Excise Management Act 1979 shall be amended in accordance with sub-paragraphs (2) to (6) below.

(2) In subsection (2) (power to require payment of unpaid or repaid duty, or repayment of drawback, where goods moved by pipe-line are deficient) for the words from "require" to the end there shall be substituted the following paragraphs--

" (a) require the owner of the pipe-line or the proprietor of the goods to pay immediately any duty, other than excise duty, unpaid or repaid on the relevant goods or, as the case may be, an amount equal to any drawback of such duty paid on the relevant goods;

(b) assess, as being excise duty due from the owner of the pipe-line or the proprietor of the goods, the excise duty unpaid or repaid on the relevant goods or, as the case may be, an amount equal to any drawback of excise duty paid on the relevant goods. "

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

" (2A) Where the Commissioners make an assessment under subsection (2)(b) above they shall notify the person assessed or his representative accordingly. "

(4) In subsection (3) for "(2)" there shall be substituted "(2)(a)".

(5) After subsection (3) there shall be inserted the following subsections--

" (3A) If--

(a) any person refuses to pay any amount of excise duty to which he has been assessed under subsection (2)(b) above, and

(b) the conditions set out in paragraphs (a) to (c) of section 94(4B) above (exhaustion of opportunities for review and appeal) are fulfilled,

he shall be liable on summary conviction to a penalty of double that amount.

(3B) Where the amount of excise duty due under subsection (2)(b) above is reduced in consequence of a review or appeal, the penalty to which the person assessed is liable under subsection (3A) above shall be a penalty of double the reduced amount. "

(6) After subsection (5) there shall be inserted the following subsection--

" (5A) In this section "the relevant goods" means the missing goods or the whole or any part of the deficiency, as the Commissioners see fit. "

Assessments in cases of untrue declarations etc.

5 After section 167(4) of the Customs and Excise Management Act 1979 (recovery as a debt due to the Crown or as a civil debt of amounts of duty not paid, and of overpayments in respect of drawback etc. made, by reason of untrue declaration etc.) there shall be inserted the following subsection--

" (5) An amount of excise duty, or the amount of an overpayment in respect of any drawback, allowance, rebate or repayment of any excise duty, shall not be recoverable as mentioned in subsection (4) above unless the Commissioners have assessed the amount of the duty or of the overpayment as being excise duty due from the person mentioned in subsection (1) or (3) above and notified him or his representative accordingly. "

Assessments relating to hydrocarbon oil duty

6 (1) In section 10(3) of the [1979 c. 5.] Hydrocarbon Oil Duties Act 1979 (power to recover excise duty where restrictions on use of duty-free oil infringed), for the words from "recover" to the end there shall be substituted "assess an amount equal to the excise duty on like oil at the rate in force at the time of the contravention as being excise duty due from him, and notify him or his representative accordingly."

(2) In section 13(1) of that Act (power to recover rebate where heavy oil is misused), for the words from "recover" to the end there shall be substituted "assess an amount equal to the rebate on like oil at the rate in force at the time of the contravention as being excise duty due from him, and notify him or his representative accordingly."

(3) In section 14(4) of that Act (power to recover rebate where light oil delivered for use as furnace fuel is misused), for the words from "recover" to the end there shall be substituted "assess the amount of rebate allowed on the oil as being excise duty due from him, and notify him or his representative accordingly."

(4) After subsection (1A) of section 23 of that Act (prohibition on use of road fuel gas on which duty has not been paid) there shall be inserted the following subsection--

" (1B) Where any person--

(a) uses as fuel in, or

(b) takes as fuel into,

a road vehicle any road fuel gas on which the excise duty chargeable under section 8 above has not been paid, the Commissioners may assess the amount of that duty as being excise duty due from that person and notify him or his representative accordingly. "

(5) In subsection (2) of that section, for "subsection (1)(b)" there shall be substituted "subsections (1)(b) and (1B)(b)".

(6) After subsection (4) of section 24 of that Act (control of use of duty-free and rebated oil) there shall be inserted the following subsections--

" (4A) Where--

(a) a rebate of duty is allowed on any oil, and

(b) a person contravenes or fails to comply with any requirement which, by virtue of any regulations made under this section, is a condition of allowing the rebate,

the Commissioners may assess an amount equal to the rebate as being excise duty due from that person, and notify him or his representative accordingly.

(4B) Where--

(a) any oil is delivered without payment of duty, and

(b) a person contravenes or fails to comply with any requirement which, by virtue of any regulations made under this section, is a condition of allowing the oil to be delivered without payment of duty,

the Commissioners may assess an amount equal to the excise duty on like oil at the rate in force at the time of the contravention or failure to comply as being excise duty due from that person, and notify him or his representative accordingly. "

(7) In the Table set out in section 27(3) of that Act (interpretation), under the heading "Management Act" there shall be inserted at the appropriate place ""representative"".

Commencement

7 This Schedule shall come into force on such day as the Commissioners of Customs and Excise may by order made by statutory instrument appoint; and different days may be appointed under this paragraph for different purposes.

Section 69.

SCHEDULE 7 Special treatment for certain distributions

Distributions to which Schedule applies

1 (1) Subject to paragraphs 4 to 7 below, this Schedule applies to any qualifying distribution which--

(a) falls within either or both of sub-paragraphs (2) and (3) below; and

(b) is a distribution made on or after 8th October 1996 by a company resident in the United Kingdom.

(2) A qualifying distribution of a company falls within this sub-paragraph if it is a payment made by that company--

(a) on the redemption, repayment or purchase of its own shares, or

(b) on the purchase of rights to acquire its own shares.

(3) A qualifying distribution of a company falls within this sub-paragraph if--

(a) arrangements are or have been made by virtue of which any one or more of the specified matters is or was made referable (in some way and to any extent) to, or to the carrying out of, a transaction in securities; and

(b) that transaction is a transaction completed on or after 8th October 1996, or some or all of those arrangements are arrangements made on or after that date.

(4) For the purposes of this Schedule the specified matters, in relation to a qualifying distribution, are--

(a) whether the distribution is made,

(b) the time when it is made,

(c) its form, and

(d) its amount.

(5) In this Schedule--

• "arrangements" means arrangements of any kind, whether in writing or not;

• "qualifying distribution" has the same meaning as in the Taxes Act 1988;

• "shares" has the same meaning as in sections 219 to 228 of that Act (purchase of own shares);

• "transaction in securities" has the same meaning as in Chapter I of Part XVII of that Act (cancellation of tax advantages from certain transactions in securities).

Distributions treated as FIDs

2 (1) The Tax Acts shall have effect, and be deemed in relation to any time on or after 8th October 1996 to have had effect, as if a qualifying distribution to which this Schedule applies were a foreign income dividend within the meaning of Chapter VA of Part VI of the Taxes Act 1988 and, accordingly, as if the making of the distribution were the payment of a foreign income dividend.

(2) In section 246A of the Taxes Act 1988 (elections for dividends to be treated as foreign income dividends), after subsection (2) there shall be inserted the following subsection--

" (2A) An election under this section cannot be made as regards a distribution which already falls to be treated as a foreign income dividend by virtue of paragraph 2(1) of Schedule 7 to the Finance Act 1997. "

(3) Sub-paragraph (1) above has effect subject to--

(a) section 95(1A)(b) of the Taxes Act 1988 (receipt of qualifying distribution by dealer not to be treated as FID for certain purposes); and

(b) section 247(5B) to (5D) of that Act (distributions that are subject to group income elections).

(4) Sub-paragraph (2) above has effect in relation to the making of elections on or after 8th October 1996.

Distributions treated as section 686 income of trustees

3 (1) This paragraph applies where--

(a) a qualifying distribution to which this Schedule applies by virtue of its falling within paragraph 1(2) above is or has been made to trustees; and

(b) those trustees are not or, as the case may be, were not the trustees of a unit trust scheme within the meaning of section 469 of the Taxes Act 1988.

(2) The relevant part of that distribution (and, accordingly, the corresponding part of the foreign income dividend that paragraph 2(1) above deems the distribution to be) shall be treated for the purposes of the Tax Acts as if it were income to which section 686 of the Taxes Act 1988 (application of rate applicable to trusts to income of certain discretionary trusts) applies.

(3) In sub-paragraph (2) above the reference to the relevant part of the distribution is a reference to so much (if any) of that distribution as--

(a) is not income falling within paragraph (a) of section 686(2) of the Taxes Act 1988 (income which is to be accumulated or which is payable at any person's discretion);

(b) does not fall to be treated for the purposes of the Income Tax Acts as income of a settlor;

(c) is not income arising under a trust established for charitable purposes; and

(d) is not income from investments, deposits or other property held for any such purposes as are mentioned in sub-paragraph (i) or (ii) of section 686(2)(c) of the Taxes Act 1988 (property held for pension purposes).

(4) Subsection (6) of section 686 of the Taxes Act 1988 (meaning of "trustees" etc.) shall apply for the purposes of this paragraph as it applies for the purposes of that section.

(5) This paragraph has effect for the year 1997-98 and subsequent years of assessment and shall be deemed to have had effect for the year 1996-97 in relation to distributions made on or after 5th December 1996.

Stock options

4 (1) A qualifying distribution does not fall within paragraph 1(3) above by reason only that it is made in consequence of the exercise of such an option as is mentioned in section 249(1)(a) of the Taxes Act 1988 (option to receive either a cash dividend or additional share capital).

(2) Section 251(1)(c) of the Taxes Act 1988 (interpretation of references to the exercise of an option to receive either a cash dividend or additional share capital) shall apply for the purposes of this paragraph as it applies for the purposes of sections 249 and 250 of that Act.

Dividends on fixed rate preference shares

5 (1) A qualifying distribution consisting in a dividend on a fixed-rate preference share does not fall within paragraph 1(3) above by reason only that any of the specified matters is made referable to the terms on which the share was issued.

(2) In this paragraph "fixed-rate preference share" means--

(a) any fixed rate preference share within the meaning of section 95 of the Taxes Act 1988; or

(b) any share which would be such a share if the dividends mentioned in section 95(5)(c)(i) of that Act included dividends fixed by reference to a standard published rate of interest.

Pre-sale distributions

6 (1) A qualifying distribution which is an excepted pre-sale distribution does not fall within paragraph 1(3) above if the only transactions in securities to which any of the specified matters are referable are relevant transactions.

(2) For the purposes of this paragraph, a qualifying distribution of a company is an excepted pre-sale distribution if, in the period beginning with the making of the distribution and ending with the fourteenth day after the day on which the distribution is made, there is a major change in the ownership of that company.

(3) For the purposes of sub-paragraph (2) above, there is a major change in the ownership of a company in any period if, in that period--

(a) a single person acquires a holding of 75 per cent. or more of the ordinary share capital of the company; or

(b) each of two or more persons acquires a holding of ordinary share capital of the company, and the holdings together amount to 75 per cent. or more of the ordinary share capital of the company.

(4) For the purposes of this paragraph a relevant transaction, in relation to any excepted pre-sale distribution, is any transaction in securities by which the holding or, as the case may be, any of the holdings mentioned in sub-paragraph (3) above is acquired.

(5) In applying sub-paragraph (3) above--

(a) the circumstances at any two points in time falling within the period in question may be compared, and a holder at the later time may be regarded as having acquired in that period whatever he did not hold at the earlier time, irrespective of what he has acquired or disposed of in between;

(b) to allow for any issue of shares or other reorganisation of capital, any such comparison may be made in terms of percentage holdings of the total ordinary share capital at the respective times, so that a person whose percentage holding is greater at the later time may be regarded as having acquired in the period a percentage holding equal to the increase;

(c) any acquisition of shares under the will or on the intestacy of a deceased person, and any gift of shares which is unsolicited and made without regard to the provisions of paragraphs 2 and 3 above, shall be left out of account.

(6) For the purposes of this paragraph, where--

(a) persons, whether company members or not, possess extraordinary rights or powers under the articles of association of a company or under any other document regulating the company, and

(b) because of that fact, ownership of the ordinary share capital may not be an appropriate test of whether there has been a major change in the ownership of the company,

then, in considering whether there has been a major change in the ownership of the company, holdings of all kinds of share capital, including preference shares, or of any particular kind of share capital, or voting power or any other special kind of power, shall be taken into account, and holdings of ordinary share capital shall be disregarded, to such extent as may be appropriate.

(7) For the purposes of this paragraph, references to ownership shall be construed as references to beneficial ownership, and references to acquisition shall be construed accordingly.

Manufactured payments

7 (1) A manufactured dividend shall not be taken to be a qualifying distribution to which this Schedule applies except in pursuance of sub-paragraph (2) below.

(2) Where a payment is made which is representative of a qualifying distribution to which this Schedule applies, that payment shall be deemed to be such a distribution for all the purposes of the Tax Acts, except those for which Schedule 23A to the Taxes Act 1988 (manufactured payments) makes provision in relation to the payment which is different from the provision applying to distributions to which this Schedule applies.

(3) For the purposes of Schedule 23A to the Taxes Act 1988 a payment which is representative of a payment falling within paragraph 1(2) above shall be treated as if it were representative of a dividend on the shares redeemed, repaid or purchased or, as the case may be, on the shares to which the right relates.

(4) In this paragraph "manufactured dividend" has the same meaning as in Schedule 23A to the Taxes Act 1988.

Amendment of section 95 of the Taxes Act 1988

8 (1) In section 95 of the Taxes Act 1988 (taxation of distributions received by dealers on purchase by a company of its own shares), for subsections (1) to (3) there shall be substituted the following subsections--

" (1) Each of the following, that is to say--

(a) any qualifying distribution to which Schedule 7 to the Finance Act 1997 (special treatment for certain distributions) applies which is received by a dealer, and

(b) any payment by a dealer which is representative of a qualifying distribution to which that Schedule applies,

shall be taken into account in computing the profits of the dealer which are chargeable to tax in accordance with the provisions of this Act applicable to Case I or II of Schedule D.

(1A) Accordingly, where a dealer receives a qualifying distribution to which Schedule 7 to the Finance Act 1997 applies--

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 | P.17 | P.18 | P.19 | P.20

-- Back --