Finance Act 1997 (c. 16)

(The document as of February, 2008)

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(2) In section 53A (information required to keep register up to date) in subsection (1)(b), after the words "register kept under section 53" there shall be inserted "or 53AA".

(3) In section 55 (credit)--

(a) after "insurer", wherever occurring other than in subsection (2), there shall be inserted "or taxable intermediary";

(b) in subsection (1), after "premium" there shall be inserted "or taxable intermediary's fee (as the case may be)";

(d) in subsection (5), after "insurer's" there shall be inserted "or taxable intermediary's"; and

(e) in subsection (8)(a), after "premium" there shall be inserted "or taxable intermediary's fee".

(4) In section 57 (tax representatives)--

(a) after "insurer", wherever occurring, there shall be inserted "or taxable intermediary";

(b) after "insurer's", wherever occurring, there shall be inserted "or taxable intermediary's"; and

(c) in subsection (1)(a), after "registered under section 53" there shall be inserted "or, as the case may be, section 53AA".

(5) In section 58 (rights and duties of tax representatives)--

(a) after "insurer", wherever occurring, there shall be inserted "or taxable intermediary"; and

(b) after "insurer's", wherever occurring, there shall be inserted "or taxable intermediary's".

(6) In section 59 (review of Commissioners' decisions) in subsection (1) (which specifies the kinds of decision to which the section applies) after paragraph (b) there shall be inserted--

" (bb) whether a payment falls to be treated under section 52A(2) above as a premium received under a taxable insurance contract by an insurer and chargeable to tax at the higher rate; " .

(7) In section 62 (partnership, bankruptcy, transfer of business etc) in subsections (1) and (5), after "insurer", wherever occurring, there shall be inserted "or taxable intermediary".

(8) In section 63(1) (which details the functions of representative members of groups of companies)--

(a) after paragraph (a) there shall be inserted--

" (aa) any business carried on by a member of the group who is a taxable intermediary shall be treated as carried on by the representative member, " ; and

(b) after paragraph (b) there shall be inserted--

" (bb) the representative member shall be taken to be the taxable intermediary in relation to any taxable intermediary's fees as regards which a member of the group is the actual taxable intermediary, " .

(9) In section 73 (interpretation) in subsection (1) there shall be inserted at the appropriate places--

" (a) "taxable intermediary" shall be construed in accordance with section 52A above; "

" (b) "taxable intermediary's fees" has the meaning given by section 53AA(9) above. "

(10) At the beginning of subsection (3) of that section (meaning of "registrable person") there shall be inserted "Subject to subsection (3A) below," and after that subsection there shall be inserted--

" (3A) References in sections 53A and 54 above and paragraphs 1, 9 and 12 of Schedule 7 to this Act to a registrable person include a reference to a person who--

(a) is registered under section 53AA above; or

(b) is liable to be registered under that section. "

(11) In Schedule 7, in paragraph 14 (penalty for failing to register under section 53)--

(a) in sub-paragraph (1), after "section 53(2)" there shall be inserted "or 53AA(3)"; and

(b) in sub-paragraph (2)(a), after "section 53" there shall be inserted "or, as the case may be, section 53AA".

Miscellaneous

28 Amounts charged by other intermediaries

(1) In section 72 of the [1994 c. 9.] Finance Act 1994 (interpretation: premium) after subsection (1) there shall be inserted--

" (1A) Where an amount is charged to the insured by any person in connection with a taxable insurance contract, any payment in respect of that amount is to be regarded as a payment received under that contract by the insurer unless--

(a) the payment is chargeable to tax at the higher rate by virtue of section 52A above; or

(b) the amount is charged under a separate contract and is identified in writing to the insured as a separate amount so charged. "

(2) The amendment made by subsection (1) above has effect in relation to payments received in respect of amounts charged on or after 1st April 1997.

29 Prevention of pre-emption

(1) After section 67 of the [1994 c. 9.] Finance Act 1994 there shall be inserted--

" 67A Announced increase in rate of tax: certain premiums treated as received on date of increase

(1) This section applies in any case where a proposed increase is announced by a Minister of the Crown in the rate at which tax is to be charged on a premium if it is received by the insurer on or after a date specified in the announcement ("the date of the change").

(2) In a case where--

(a) a premium under a contract of insurance is received by the insurer on or after the date of the announcement but before the date of the change, and

(b) the period of cover for the risk begins on or after the date of the change,

for the purposes of this Part the premium shall be taken to be received on the date of the change.

(3) Subsection (4) below applies where--

(a) a premium under a contract of insurance is received by the insurer on or after the date of the announcement but before the date of the change;

(b) the period of cover for the risk begins before the date of the change and ends on or after the first anniversary of the date of the change; and

(c) the premium, or any part of it, is attributable to such of the period of cover as falls on or after the first anniversary of the date of the change.

(4) For the purposes of this Part--

(a) so much of the premium as is attributable to such of the period of cover as falls on or after the first anniversary of the date of the change shall be taken to be received on the date of the change; and

(b) so much as is so attributable shall be taken to be a separate premium.

(5) In determining whether the condition in subsection (2)(a) or (3)(a) above is satisfied, the provisions of regulations made by virtue of subsection (3) or (7) of section 68 below apply as they would apart from this section; but, subject to that, where subsection (2) or (4) above applies--

(a) that subsection shall have effect notwithstanding anything in section 68 below or regulations made under that section; and

(b) any regulations made under that section shall have effect as if the entry made in the accounts of the insurer showing the premium as due to him had been made as at the date of the change.

(6) Any attribution under this section shall be made on such basis as is just and reasonable.

(7) In this section--

"increase", in relation to the rate of tax, includes the imposition of a charge to tax by adding to the descriptions of contract which are taxable insurance contracts;
"Minister of the Crown" has the same meaning as in the Ministers of the [1975 c. 26.] Crown Act 1975.

67B Announced increase in rate of tax: certain contracts treated as made on date of increase

(1) This section applies in any case where--

(a) an announcement falling within section 67A(1) above is made; but

(b) a proposed exception from the increase in question is also announced by a Minister of the Crown; and

(c) the proposed exception is to apply in relation to a premium only if the conditions described in subsection (2) below are satisfied in respect of the premium.

(2) Those conditions are--

(a) that the premium is in respect of a contract made before the date of the change;

(b) that the premium falls, by virtue of regulations under section 68 below, to be regarded for the purposes of this Part as received under the contract by the insurer before such date ("the concessionary date") as is specified for the purpose in the announcement.

(3) In a case where--

(a) a premium under a contract of insurance is received by the insurer on or after the date of the announcement but before the concessionary date, and

(b) the period of cover for the risk begins on or after the date of the change,

the rate of tax applicable in relation to the premium shall be determined as if the contract had been made on the date of the change.

(4) Subsection (5) below applies where--

(a) a premium under a contract of insurance is received by the insurer on or after the date of the announcement but before the concessionary date;

(b) the period of cover for the risk begins before the date of the change and ends on or after the first anniversary of the date of the change; and

(c) the premium, or any part of it, is attributable to such of the period of cover as falls on or after the first anniversary of the date of the change.

(5) Where this subsection applies--

(a) the rate of tax applicable in relation to so much of the premium as is attributable to such of the period of cover as falls on or after the first anniversary of the date of the change shall be determined as if the contract had been made on the date of the change; and

(b) so much of the premium as is so attributable shall be taken to be a separate premium.

(6) Any attribution under this section shall be made on such basis as is just and reasonable.

(7) In this section--

"the date of the change" has the same meaning as in section 67A above;
"Minister of the Crown" has the same meaning as in section 67A above.

67C Announced increase in rate of tax: exceptions and apportionments

(1) Sections 67A(2) and 67B(3) above do not apply in relation to a premium if the risk to which that premium relates belongs to a class of risk as regards which the normal practice is for a premium to be received by or on behalf of the insurer before the date when cover begins.

(2) Sections 67A(3) and (4) and 67B(4) and (5) above do not apply in relation to a premium if the risk to which that premium relates belongs to a class of risk as regards which the normal practice is for cover to be provided for a period exceeding twelve months.

(3) If a contract relates to more than one risk, then, in the application of section 67A(2), 67A(3) and (4), 67B(3) or 67B(4) and (5) above--

(a) the reference in section 67A(2)(b) or (3)(b) or 67B(3)(b) or (4)(b), as the case may be, to the risk shall be taken as a reference to any given risk,

(b) so much of the premium as is attributable to any given risk shall be taken for the purposes of section 67A(2), 67A(3) and (4), 67B(3) or 67B(4) and (5) above, as the case may be, to be a separate premium relating to that risk,

(c) those provisions shall then apply separately in the case of each given risk and the separate premium relating to it, and

(d) any further attribution required by section 67A(3) and (4) or 67B(4) and (5) above shall be made accordingly,

and subsections (1) and (2) above shall apply accordingly.

(4) Any attribution under this section shall be made on such basis as is just and reasonable. "

(2) In the application of sections 67A to 67C of the [1994 c. 9.] Finance Act 1994 in relation to the increases in insurance premium tax effected by this Part and the exceptions from those increases--

(a) the announcement relating to those increases, as described in section 67A(1), and to those exceptions, as described in section 67B(1), shall be taken to have been made on 26th November 1996;

(b) "the date of the change" is 1st April 1997; and

(3) The amendment made by subsection (1) above has effect on and after 26th November 1996.

30 Tax point for payroll deductions

(1) After subsection (7) of section 72 of the [1994 c. 9.] Finance Act 1994 (insurance premiums to be treated as received by the insurer when received by another person on his behalf) there shall be inserted--

" (7A) Where any person is authorised by or on behalf of an employee to deduct from anything due to the employee under his contract of employment an amount in respect of a payment due under a taxable insurance contract, subsection (7) above shall not apply to the receipt on behalf of the insurer by the person so authorised of the amount deducted. "

(2) After subsection (8) of that section there shall be inserted--

" (8A) Where, by virtue of subsection (7A) above, subsection (7) above does not apply to the receipt of an amount by a person and the whole or part of the amount is referable to commission to which he is entitled--

(a) if the whole of the amount is so referable, the amount shall be treated as received by the insurer when it is deducted by that person; and

(b) otherwise, the part of the amount that is so referable shall be treated as received by the insurer when the remainder of the payment concerned is or is treated as received by him. "

(3) This section applies in relation to amounts deducted on or after the day on which this Act is passed.

Part III Value Added Tax

Registration

31 Aggregation of businesses

(1) In Schedule 1 to the [1994 c. 23.] Value Added Tax Act 1994 (registration in respect of taxable supplies), after paragraph 1 there shall be inserted the following paragraph--

" 1A (1) Paragraph 2 below is for the purpose of preventing the maintenance or creation of any artificial separation of business activities carried on by two or more persons from resulting in an avoidance of VAT.

(2) In determining for the purposes of sub-paragraph (1) above whether any separation of business activities is artificial, regard shall be had to the extent to which the different persons carrying on those activities are closely bound to one another by financial, economic and organisational links. "

(2) In sub-paragraph (2) of paragraph 2 of that Schedule (power of Commissioners to make direction for aggregation of businesses)--

(a) in paragraph (b), the words from "which should properly" to "described in the direction" shall be omitted;

(b) in paragraph (c), for "that business" there shall be substituted "the business described in the direction"; and

(c) paragraph (d) (Commissioners to be satisfied before making direction for aggregation that avoidance is one of the main reasons for division) shall be omitted;

and, accordingly, in sub-paragraph (4) of that paragraph (power of Commissioners to make supplementary direction) the word "properly" shall be omitted.

(3) In section 84(7) of that Act (determination of appeals against directions), for the words from "as to the matters" onwards there shall be substituted "that there were grounds for making the direction."

(4) This section has effect in relation to the making of directions on or after the day on which this Act is passed.

32 Voluntary registration

For sub-paragraph (2) of paragraph 10 of Schedule 1 to the [1994 c. 23.] Value Added Tax Act 1994 (non-taxable supplies in respect of which a person is entitled to be registered) there shall be substituted the following sub-paragraph--

" (2) A supply is within this sub-paragraph if--

(a) it is made outside the United Kingdom but would be a taxable supply if made in the United Kingdom; or

(b) it is specified for the purposes of subsection (2) of section 26 in an order made under paragraph (c) of that subsection. "

Zero-rating

33 Sale of goods donated to charity

(1) In Group 15 of Schedule 8 to the Value Added Tax Act 1994 (charities etc), for Note (1) there shall be substituted the following Note--

" (1) Item 1 shall apply only if--

(a) the supply is a sale of goods donated to that charity or taxable person;

(b) the sale takes place as a result of the goods having been made available to the general public for purchase (whether in a shop or elsewhere); and

(c) the sale does not take place as a result of any arrangements (whether legally binding or not) which related to the goods and were entered into by each of the parties to the sale before the goods were made available to the general public. "

(2) This section has effect in relation to supplies made on or after 26th November 1996.

34 Charitable institutions providing care etc

(1) In Group 15 of Schedule 8 to the Value Added Tax Act 1994 (charities etc), after Note (4) there shall be inserted the following Notes--

" (4A) Subject to Note (5B), a charitable institution shall not be regarded as providing care or medical or surgical treatment for handicapped persons unless--

(a) it provides care or medical or surgical treatment in a relevant establishment; and

(b) the majority of the persons who receive care or medical or surgical treatment in that establishment are handicapped persons.

(4B) "Relevant establishment" means--

(a) a day-centre, other than a day-centre which exists primarily as a place for activities that are social or recreational or both; or

(b) an institution which is--

(i) approved, licensed or registered in accordance with the provisions of any enactment or Northern Ireland legislation; or

(ii) exempted by or under the provisions of any enactment or Northern Ireland legislation from any requirement to be approved, licensed or registered;

and in paragraph (b) above the references to the provisions of any enactment or Northern Ireland legislation are references only to provisions which, so far as relating to England, Wales, Scotland or Northern Ireland, have the same effect in every locality within that part of the United Kingdom. "

(2) After Note (5) to that Group there shall be inserted the following Notes--

" (5A) Subject to Note (5B), items 4 to 7 do not apply where the eligible body falls within Note (4)(f) unless the relevant goods are or are to be used in a relevant establishment in which that body provides care or medical or surgical treatment to persons the majority of whom are handicapped.

(5B) Nothing in Note (4A) or (5A) shall prevent a supply from falling within items 4 to 7 where--

(a) the eligible body provides medical care to handicapped persons in their own homes;

(b) the relevant goods fall within Note (3)(a) or are parts or accessories for use in or with goods described in Note (3)(a); and

(3) This section has effect in relation to supplies made on or after 26th November 1996.

Buildings and land

35 References to grants

(1) Section 96 of the [1994 c. 23.] Value Added Tax Act 1994 (interpretation) shall have effect, and be deemed always to have had effect, with the following subsection inserted after subsection (10), namely--

" (10A) Where--

(a) the grant of any interest, right, licence or facilities gives rise for the purposes of this Act to supplies made at different times after the making of the grant, and

(b) a question whether any of those supplies is zero-rated or exempt falls to be determined according to whether or not the grant is a grant of a description specified in Schedule 8 or 9 or paragraph 2(2) or (3) of Schedule 10,

that question shall be determined according to whether the description is applicable as at the time of supply, rather than by reference to the time of the grant. "

(2) Paragraph 3 of Schedule 10 to that Act (interpretation of the option to tax) shall have effect, and be deemed always to have had effect, with the following sub-paragraphs inserted after sub-paragraph (5)--

" (5A) Where--

(a) an election under paragraph 2 above is made in relation to any land, and

(b) apart from this sub-paragraph, a grant in relation to that land would be taken to have been made (whether in whole or in part) before the time when the election takes effect,

that paragraph shall have effect, in relation to any supplies to which the grant gives rise which are treated for the purposes of this Act as taking place after that time, as if the grant had been made after that time.

(5B) Accordingly, the references in paragraph 2(9) above and sub-paragraph (9) below to grants being exempt or taxable shall be construed as references to supplies to which a grant gives rise being exempt or, as the case may be, taxable. "

(3) Amendments corresponding to those made by subsections (1) and (2) above shall be deemed to have had effect, for the purposes of the cases to which it applied, in relation to the [1983 c. 55.] Value Added Tax Act 1983; and any provisions about the coming into force of any amendment of that Act shall be deemed to have had effect accordingly.

(4) Nothing in this section shall be taken to affect the operation, in relation to times before its repeal took effect, of paragraph 4 of Schedule 10 to the [1994 c. 23.] Value Added Tax Act 1994 or of any enactment re-enacted in that paragraph.

36 Buildings intended to be used as dwellings

(1) After paragraph 2(2) of Schedule 10 to the Value Added Tax Act 1994 (under which the option to tax is not available in respect of buildings intended for use as dwellings), there shall be inserted the following sub-paragraphs--

" (2A) Subject to the following provisions of this paragraph, where--

(a) an election has been made for the purposes of this paragraph in relation to any land, and

(b) a supply is made that would fall, but for sub-paragraph (2)(a) above, to be treated as excluded by virtue of that election from Group 1 of Schedule 9,

then, notwithstanding sub-paragraph (2)(a) above, that supply shall be treated as so excluded if the conditions in sub-paragraph (2B) below are satisfied.

(2B) The conditions mentioned in sub-paragraph (2A) above are--

(a) that an agreement in writing made, at or before the time of the grant, between--

(i) the person making the grant, and

(ii) the person to whom it is made,

declares that the election is to apply in relation to the grant; and

(b) that the person to whom the supply is made intends, at the time when it is made, to use the land for the purpose only of making a supply which is zero-rated by virtue of paragraph (b) of item 1 of Group 5 of Schedule 8. "

(2) This section has effect in relation to supplies made on or after the day on which this Act is passed.

37 Supplies to non-taxable persons etc

(1) Paragraphs 2(3A) and 3(8A) of Schedule 10 to the [1994 c. 23.] Value Added Tax Act 1994 (which relate to grants of land made to connected persons where they are not fully taxable) shall not have effect in relation to any supply made after 26th November 1996.

(2) In paragraph 2 of that Schedule (election to waive exemption), after sub-paragraph (3) there shall be inserted the following sub-paragraphs--

" (3AA) Where an election has been made under this paragraph in relation to any land, a supply shall not be taken by virtue of that election to be a taxable supply if--

(a) the grant giving rise to the supply was made by a person ("the grantor") who was a developer of the land; and

(b) at the time of the grant, it was the intention or expectation of--

(i) the grantor, or

(ii) a person responsible for financing the grantor's development of the land for exempt use,

that the land would become exempt land (whether immediately or eventually and whether or not by virtue of the grant) or, as the case may be, would continue, for a period at least, to be such land. "

(3) After paragraph 3 of that Schedule (construction of paragraph 2) there shall be inserted the following paragraph--

" 3A (1) This paragraph shall have effect for the construction of paragraph 2(3AA) above.

(2) For the purposes of paragraph 2(3AA) above a grant made by any person in relation to any land is a grant made by a developer of that land if--

(a) the land, or a building or part of a building on that land, is an asset falling in relation to that person to be treated as a capital item for the purposes of any regulations under section 26(3) and (4) providing for adjustments relating to the deduction of input tax; and

(b) the grant was made at a time falling within the period over which such regulations allow adjustments relating to the deduction of input tax to be made as respects that item.

(3) In paragraph 2(3AA) above and this paragraph the references to a person's being responsible for financing the grantor's development of the land for exempt use are references to his being a person who, with the intention or in the expectation that the land will become, or continue (for a period at least) to be, exempt land--

(a) has provided finance for the grantor's development of the land; or

(b) has entered into any agreement, arrangement or understanding (whether or not legally enforceable) to provide finance for the grantor's development of the land.

(4) In sub-paragraph (3)(a) and (b) above the references to providing finance for the grantor's development of the land are references to doing any one or more of the following, that is to say--

(a) directly or indirectly providing funds for meeting the whole or any part of the cost of the grantor's development of the land;

(b) directly or indirectly procuring the provision of such funds by another;

(c) directly or indirectly providing funds for discharging, in whole or in part, any liability that has been or may be incurred by any person for or in connection with the raising of funds to meet the cost of the grantor's development of the land;

(d) directly or indirectly procuring that any such liability is or will be discharged, in whole or in part, by another.

(5) The references in sub-paragraph (4) above to the provision of funds for a purpose referred to in that sub-paragraph include references to--

(a) the making of a loan of funds that are or are to be used for that purpose;

(b) the provision of any guarantee or other security in relation to such a loan;

(c) the provision of any of the consideration for the issue of any shares or other securities issued wholly or partly for raising such funds; or

(d) any other transfer of assets or value as a consequence of which any such funds are made available for that purpose.

(6) In sub-paragraph (4) above the references to the grantor's development of the land are references to the acquisition by the grantor of the asset which--

(a) consists in the land or a building or part of a building on the land, and

(b) in relation to the grantor falls to be treated for the purposes mentioned in sub-paragraph (2)(a) above as a capital item;

and for the purposes of this sub-paragraph the acquisition of an asset shall be taken to include its construction or reconstruction and the carrying out in relation to that asset of any other works by reference to which it falls to be treated for the purposes mentioned in sub-paragraph (2)(a) above as a capital item.

(7) For the purposes of paragraph 2(3AA) above and this paragraph land is exempt land if, at a time falling within the period mentioned in sub-paragraph (2)(b) above--

(a) the grantor,

(b) a person responsible for financing the grantor's development of the land for exempt use, or

(c) a person connected with the grantor or with a person responsible for financing the grantor's development of the land for exempt use,

is in occupation of the land without being in occupation of it wholly or mainly for eligible purposes.

(8) For the purposes of this paragraph, but subject to sub-paragraphs (10) and (12) below, a person's occupation at any time of any land is not capable of being occupation for eligible purposes unless he is a taxable person at that time.

(9) Subject to sub-paragraphs (10) to (12) below, a taxable person in occupation of any land shall be taken for the purposes of this paragraph to be in occupation of that land for eligible purposes to the extent only that his occupation of that land is for the purpose of making supplies which--

(a) are or are to be made in the course or furtherance of a business carried on by him; and

(b) are supplies of such a description that any input tax of his which was wholly attributable to those supplies would be input tax for which he would be entitled to a credit.

(10) For the purposes of this paragraph--

(a) occupation of land by a body to which section 33 applies is occupation of the land for eligible purposes to the extent that the body occupies the land for purposes other than those of a business carried on by that body; and

(b) any occupation of land by a Government department (within the meaning of section 41) is occupation of the land for eligible purposes.

(11) For the purposes of this paragraph, where land of which any person is in occupation--

(a) is being held by that person in order to be put to use by him for particular purposes, and

(b) is not land of which he is in occupation for any other purpose,

that person shall be deemed, for so long as the conditions in paragraphs (a) and (b) above are satisfied, to be in occupation of that land for the purposes for which he proposes to use it.

(12) Sub-paragraphs (8) to (11) above shall have effect where land is in the occupation of a person who--

(a) is not a taxable person, but

(b) is a person whose supplies are treated for the purposes of this Act as supplies made by another person who is a taxable person,

as if the person in occupation of the land and that other person were a single taxable person.

(13) For the purposes of this paragraph a person shall be taken to be in occupation of any land whether he occupies it alone or together with one or more other persons and whether he occupies all of that land or only part of it.

(14) Any question for the purposes of this paragraph whether one person is connected with another shall be determined in accordance with section 839 of the Taxes Act. "

(4) Subsections (2) and (3) above have effect in relation to any supply made on or after the day on which this Act is passed, other than a supply arising from a relevant pre-commencement grant.

(5) Subject to subsection (6) below, a grant is a relevant pre-commencement grant for the purposes of this section if it is either--

(a) a grant made before 26th November 1996; or

(b) a grant made on or after that date and before 30th November 1999 in pursuance of an agreement in writing entered into before 26th November 1996.

(6) For the purposes of this section a grant is not a relevant pre-commencement grant by virtue of paragraph (b) of subsection (5) above unless the terms on which the grant has been made are terms which, as terms for which provision was made by the agreement mentioned in that paragraph, were fixed before 26th November 1996.

Exempt insurance supplies

38 Exempt insurance supplies

(1) In Schedule 9 to the [1994 c. 23.] Value Added Tax Act 1994 (exemptions), for Group 2 (insurance) there shall be substituted the following Group--

" Group 2 -- Insurance

Item No

1 The provision of insurance or reinsurance by a person who provides it in the course of--

(a) any insurance business which he is authorised under section 3 or 4 of the [1982 c. 50.] Insurance Companies Act 1982 to carry on, or

(b) any business in respect of which he is exempted under section 2 of that Act from the requirement to be so authorised.

2 The provision by an insurer or reinsurer who belongs outside the United Kingdom of--

(a) insurance against any of the risks or other things described in Schedules 1 and 2 to the Insurance Companies Act 1982, or

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