259CB Hybrid or otherwise impermissible deduction/non-inclusion mismatches and their extent
(1) There is a “hybrid or otherwise impermissible deduction/non-inclusion mismatch”, in relation to a payment or quasi-payment, if either or both of case 1 or 2 applies.
(2) Case 1 applies where—
(a) the relevant deduction exceeds the sum of the amounts of ordinary income that, by reason of the payment or quasi-payment, arise to each payee for a permitted taxable period, and
(b) all or part of that excess arises by reason of the terms, or any other feature, of the financial instrument.
(3) So far as the excess arises—
(a) by reason of a relevant debt relief provision, or
(b) in relevant debt relief circumstances,
it is to be taken not to arise by reason of the terms, or any other feature, of the financial instrument (whether or not it would have arisen by reason of the terms, or any other feature, of the financial instrument regardless).
(3A) So far as the excess arises by reason of an interest distribution designation, it is to be taken not to arise by reason of the terms, or any other feature, of the financial instrument (whether or not it would have arisen by reason of the terms, or any other feature, of the financial instrument regardless of that designation).
(4) Subject to subsections (3), (3A) and (9), for the purposes of subsection (2)(b)—
(a) it does not matter whether the excess or part arises for another reason as well as the terms, or any other feature, of the financial instrument (even if it would have arisen for that other reason regardless of the terms, or any other feature, of the financial instrument), and
(b) an excess or part of an excess is to be taken to arise by reason of the terms, or any other feature, of the financial instrument (so far as would not otherwise be the case) if, on making such of the relevant assumptions in relation to each payee as apply in relation to that payee (see subsections (5) and (6)), it could arise by reason of the terms, or any other feature, of the financial instrument.
(5) These are the “relevant assumptions”—
(a) where a payee is not within the charge to a tax under the law of a payee jurisdiction because the payee benefits from an exclusion, immunity, exemption or relief (however described) under that law, assume that the exclusion, immunity, exemption or relief does not apply;
(b) where an amount of income is not included in the ordinary income of a payee for the purposes of a tax charged under the law of a payee jurisdiction because the payment or quasi-payment is not made in connection with a business carried on by the payee in that jurisdiction, assume that the payment or quasi-payment is made in connection with such a business;
(c) where a payee is not within the charge to a tax under the law of any territory because there is no territory where the payee is—
(i) resident for the purposes of a tax charged under the law of that territory, or
(ii) within the charge to a tax under the law of that territory as a result of having a permanent establishment in that territory,
assume that the payee is a company that is resident for tax purposes, and carries on a business in connection with which the payment or quasi-payment is made, in the United Kingdom.
(6) Where the relevant assumption in subsection (5)(c) applies in relation to a payee the following provisions are to be disregarded in relation to that payee for the purposes of subsection (4)(b)—
(a) section 441 of CTA 2009 (loan relationships for unallowable purposes);
(b) section 690 of that Act (derivative contracts for unallowable purposes);
(c) Part 4 (transfer pricing);
(d) this Part;
(e) Part 10 (corporate interest restriction).
(7) Case 2 applies where there are one or more amounts of ordinary income (“under-taxed amounts”) that—
(a) arise, by reason of the payment or quasi-payment, to a payee for a permitted taxable period, and
(b) are under taxed by reason of the terms, or any other feature, of the financial instrument.
(8) Subject to subsection (9), for the purposes of subsection (7)(b) it does not matter whether an amount of ordinary income is under taxed for another reason as well as the terms, or any other feature, of the financial instrument (even if it would have been under taxed for that other reason regardless of the terms, or any other feature, of the financial instrument).
(9) For the purposes of this section disregard—
(a) any excess or part of an excess mentioned in subsection (2), and
(b) any under-taxed amount,
that arises as a result of a payee being a relevant investment fund (see section 259NA).
(10) Where case 1 applies, the amount of the hybrid or otherwise impermissible deduction/non-inclusion mismatch is equal to the excess that arises as mentioned in subsection (2)(b).
(11) Where case 2 applies, the amount of the hybrid or otherwise impermissible deduction/non-inclusion mismatch is equal to the sum of the amounts given in respect of each under-taxed amount by—
( UTA × ( FMR − R ) ) FMR
where—
“UTA” is the under-taxed amount;
“FMR” is the payee's full marginal rate (expressed as a percentage) for the permitted taxable period for which the under-taxed amount arises;
“R” is the highest rate (expressed as a percentage) at which tax is charged on the taxable profits in which the under-taxed amount is included, taking into account on a just and reasonable basis the effect of any credit for underlying tax.
(12) Where cases 1 and 2 both apply, the amount of the hybrid or otherwise impermissible deduction/non-inclusion mismatch is the sum of the amounts given by subsections (10) and (11).
(13) See section 259CC for the meaning of “permitted taxable period”, “relevant debt relief provision” and “under taxed”.
(1) This section has effect for the purposes of section 259CB.
(2) A taxable period of a payee is “permitted” in relation to an amount of ordinary income that arises as a result of the payment or quasi-payment if—
(a) the period begins before the end of 12 months after the end of the payment period, or
(b) the period begins at a later time and it is just and reasonable for the amount of ordinary income to arise for the period (rather than an earlier one).
(3) Each of these is a “relevant debt relief provision”—
(a) section 322 of CTA 2009 (release of debts: cases where credits not required to be brought into account),
(b) section 357 of that Act (insolvent creditors),
(c) section 358 of that Act (exclusion of credits on release of connected companies' debts: general),
(d) section 359 of that Act (exclusion of credits on release of connected companies' debts during creditor's insolvency),
(e) section 361C of that Act (the equity-for-debt exception),
(f) section 361D of that Act (corporate rescue: debt released shortly after acquisition), and
(g) section 362A of that Act (corporate rescue: debt released shortly after connection arises).
(3A) To determine whether excess arises in “relevant debt relief circumstances” see sections 259NEB to 259NEF.
(3B) An “interest distribution designation” means a designation made under regulation 5(2) of the Investment Trusts (Dividends) (Optional Treatment as Interest Distributions) Regulations 2009 (S.I. 2009/2034).
(4) An amount of ordinary income of a payee, for a permitted taxable period, is “under taxed” if the highest rate at which tax is charged on the taxable profits of the payee in which the amount is included, taking into account on a just and reasonable basis the effect of any credit for underlying tax, is less than the payee's full marginal rate for that period.
(5) The payee's “full marginal rate” means the highest rate at which the tax that is chargeable on the taxable profits mentioned in subsection (4) could be charged on taxable profits, of the payee for the permitted taxable period, which include ordinary income that arises from, or in connection with, a financial instrument.
(6) A “credit for underlying tax” means a credit or relief given to reflect tax charged on profits that are wholly or partly used to fund (directly or indirectly) the payment or quasi-payment.
(7) A qualifying capital amount arising to a payee is treated as an amount of ordinary income of a payee and references to tax include any qualifying capital tax.
(8) For the purposes of case 2—
(a) a qualifying capital amount arising to a payee, for a permitted taxable period, is “under taxed” if the highest rate at which tax is charged on the amount, taking into account on a just and reasonable basis the effect of any credit for underlying tax, is less than the payee’s full marginal rate for that period,
(b) in determining the payee’s “full marginal rate”, the reference to the taxable profits mentioned in subsection (4) includes any qualifying capital amount, and
(c) in determining a “credit for underlying tax”, the reference to profits includes any qualifying capital amount.
(9) If the rate at which a qualifying capital tax is charged on a qualifying capital amount of a payee exceeds the rate at which tax would be charged on an amount of income of the payee, the excess is to be ignored.
(10) For the purposes of subsections (7) to (9) a “qualifying capital amount” means an amount of a capital nature on which a qualifying capital tax is charged.
(11) A qualifying capital tax is not regarded for this purpose as charged on an amount so far as—
(a) the amount is excluded, reduced or offset for the purposes of the tax by any exemption, exclusion, relief or credit that—
(i) applies specifically to all or part of the amount (as opposed to amounts of a capital nature generally), or
(ii) arises as a result of, or otherwise in connection with, a payment or quasi-payment that gives rise to the amount, or
(b) the tax is, or falls to be, refunded (and section 259BC(6) and (7) apply for the purposes of this paragraph with the necessary modifications).
(12) For the purposes of subsections (7) to (11) a “qualifying capital tax” means—
(a) capital gains tax or the charge to corporation tax in respect of chargeable gains, or
(b) any tax chargeable under the law of a territory outside the United Kingdom that corresponds to a United Kingdom tax mentioned in paragraph (a),
but does not include any tax chargeable at a nil rate.
259CD Counteraction where the payer is within the charge to corporation tax for the payment period
(1) This section applies where the payer is within the charge to corporation tax for the payment period.
(2) For corporation tax purposes, the relevant deduction that may be deducted from the payer's income for the payment period is reduced by an amount equal to the hybrid or otherwise impermissible deduction/non-inclusion mismatch mentioned in section 259CA(4).
259CE Counteraction where a payee is within the charge to corporation tax
(1) This section applies in relation to a payee where—
(a) the payee is within the charge to corporation tax for an accounting period some or all of which falls within the payment period, and
(b) it is reasonable to suppose that—
(i) neither section 259CD nor any equivalent provision under the law of a territory outside the United Kingdom applies, or
(ii) a provision of the law of a territory outside the United Kingdom that is equivalent to section 259CD applies, but does not fully counteract the hybrid or otherwise impermissible deduction/non-inclusion mismatch mentioned in section 259CA(4).
(2) A provision of the law of a territory outside the United Kingdom that is equivalent to section 259CD does not fully counteract that mismatch if (and only if)—
(a) it does not reduce the relevant deduction by the full amount of the mismatch, and
(b) the payer is still able to deduct some of the relevant deduction from income in calculating taxable profits.
(3) In this section “the relevant amount” is—
(a) in a case where subsection (1)(b)(i) applies, an amount equal to the hybrid or otherwise impermissible deduction/non-inclusion mismatch mentioned in section 259CA(4), or
(b) in a case where subsection (1)(b)(ii) applies, the lesser of—
(i) the amount by which that mismatch exceeds the amount by which it is reasonable to suppose the relevant deduction is reduced by a provision under the law of a territory outside the United Kingdom that is equivalent to section 259CD, and
(ii) the amount of the relevant deduction that may still be deducted as mentioned in subsection (2)(b).
(4) If the payee is the only payee, the relevant amount is to be treated as income arising to the payee for the counteraction period.
(5) If there is more than one payee, an amount equal to the payee's share of the relevant amount is to be treated as income arising to the payee for the counteraction period.
(6) The payee's share of the relevant amount is to be determined by apportioning that amount between all the payees on a just and reasonable basis, having regard (in particular)—
(a) to any arrangements as to profit sharing that may exist between some or all of the payees,
(b) to whom any under-taxed amounts (within the meaning given by section 259CB(7)) arise, and
(c) to whom any amounts of ordinary income that it would be reasonable to expect to arise as a result of the payment or quasi-payment, but that do not arise, would have arisen.
(7) An amount of income that is treated as arising under subsection (4) or (5) is chargeable under Chapter 8 of Part 10 of CTA 2009 (income not otherwise charged) (despite section 979(2) of that Act).
(8) The “counteraction period” means—
(a) if an accounting period of the payee coincides with the payment period, that accounting period, or
(b) otherwise, the first accounting period of the payee that is wholly or partly within the payment period.
(1) This Chapter contains provision that counteracts deduction/non-inclusion mismatches that it is reasonable to suppose would otherwise arise from payments or quasi-payments as a consequence of hybrid transfer arrangements.
(2) The Chapter counteracts mismatches where the payer or a payee is within the charge to corporation tax and does so by altering the corporation tax treatment of the payer or a payee.
(3) Section 259DA contains the conditions that must be met for this Chapter to apply.
(4) Section 259DB defines “hybrid transfer arrangement”.
(5) Section 259DC defines “hybrid transfer deduction/non-inclusion mismatch” and provides how the amount of the mismatch is to be calculated.
(6) Section 259DD contains definitions of certain terms used in section 259DC.
(7) Section 259DE contains provision in connection with excluding mismatches from counteraction by the Chapter where they arise as a consequence of the tax treatment of a financial trader.
(8) Section 259DF contains provision that counteracts the mismatch where the payer is within the charge to corporation tax for the payment period.
(9) Section 259DG contains provision that counteracts the mismatch where a payee is within the charge to corporation tax and neither section 259DF nor any equivalent provision under the law of a territory outside the United Kingdom fully counteracts the mismatch.
(10) See also section 259BB for the meaning of “payment”, “quasi-payment”, “payment period”, “relevant deduction”, “payer” and “payee”.
(1) This Chapter applies if conditions A to E are met.
(2) Condition A is that there is a hybrid transfer arrangement in relation to an underlying instrument (see section 259DB).
(3) Condition B is that a payment or quasi-payment is made under or in connection with—
(a) the hybrid transfer arrangement, or
(b) the underlying instrument.
(4) Condition C is that—
(a) the payer is within the charge to corporation tax for the payment period, or
(b) a payee is within the charge to corporation tax for an accounting period some or all of which falls within the payment period.
(5) Condition D is that it is reasonable to suppose that, disregarding this Part and any equivalent provision under the law of a territory outside the United Kingdom, there would be a hybrid transfer deduction/non-inclusion mismatch in relation to the payment or quasi-payment (see section 259DC).
(6) Condition E is that—
(a) it is a quasi-payment that is made as mentioned in subsection (3) and the payer is also a payee (see section 259BB(7)),
(b) the payer and a payee are related (see section 259NC) at any time in the period—
(i) beginning with the day on which the hybrid transfer arrangement is made, and
(ii) ending with the last day of the payment period, or
(c) the hybrid transfer arrangement is a structured arrangement.
(7) The hybrid transfer arrangement is a “structured arrangement” if it is reasonable to suppose that—
(a) the hybrid transfer arrangement is designed to secure a hybrid transfer deduction/non-inclusion mismatch, or
(b) the terms of the hybrid transfer arrangement share the economic benefit of the mismatch between the parties to the arrangement or otherwise reflect the fact that the mismatch is expected to arise.
(8) The hybrid transfer arrangement may be designed to secure a hybrid transfer deduction/non-inclusion mismatch despite also being designed to secure any commercial or other objective.
(9) Sections 259DF (cases where the payer is within the charge to corporation tax for the payment period) and 259DG (cases where a payee is within the charge to corporation tax) make provision for the counteraction of the hybrid transfer deduction/non-inclusion mismatch.
259DB Meaning of “hybrid transfer arrangement”, “underlying instrument” etc
(1) This section has effect for the purposes of this Chapter.
(2) A “hybrid transfer arrangement” means—
(a) a repo,
(b) a stock lending arrangement, or
(c) any other arrangement,
that is an arrangement within subsection (3).
(3) An arrangement is within this subsection if it provides for, or relates to, the transfer of a financial instrument (“the underlying instrument”) and—
(a) the dual treatment condition is met in relation to the arrangement, or
(b) a substitute payment could be made under the arrangement.
(4) The dual treatment condition is met in relation to the arrangement if—
(a) in relation to a person, for the purposes of a tax—
(i) the arrangement is regarded as equivalent, in substance, to a transaction for the lending of money at interest, and
(ii) a payment or quasi-payment made under, or in connection with, the arrangement or the underlying instrument could be treated so as to reflect the fact the arrangement is so regarded, and
(b) in relation to another person, for the purposes of a tax (whether or not the same one), such a payment or quasi-payment would not be treated so as to reflect the arrangement being regarded as equivalent, in substance, to a transaction for the lending of money at interest.
(5) A payment or quasi-payment is a “substitute payment” if—
(a) it consists of or involves—
(i) an amount being paid, or
(ii) a benefit being given (including the release of the whole or part of any liability to pay an amount),
(b) that amount, or the value of that benefit, is representative of a return of any kind (“the underlying return”) that arises on, or in connection with, the underlying instrument, and
(c) the amount is paid, or the benefit is given, to someone other than the person to whom the underlying return arises.
(6) For the purposes of subsection (3) where there is an arrangement, to which a person (“P”) and another person (“Q”) are party, under which—
(a) a financial instrument (“the first instrument”) ceases to be owned by P (whether or not because it ceases to exist), and
(b) Q comes to own a financial instrument (“the second instrument”) under which Q has the same, or substantially the same, rights and liabilities as P had under the first instrument,
the second instrument is to be treated as being transferred from P to Q.
(7) For the purposes of subsection (4) references to tax include any qualifying capital tax within the meaning given by section 259DD(11).
259DC Hybrid transfer deduction/non-inclusion mismatches and their extent
(1) There is a “hybrid transfer deduction/non-inclusion mismatch”, in relation to a payment or quasi-payment, if either or both of case 1 or 2 applies.
(2) Case 1 applies where—
(a) the relevant deduction exceeds the sum of the amounts of ordinary income that, by reason of the payment or quasi-payment, arise to each payee for a permitted taxable period, and
(b) all or part of that excess arises for a reason mentioned in subsection (8).
(3) Subject to subsection (9), for the purposes of subsection (2)(b)—
(a) it does not matter whether the excess or part arises for another reason as well (even if it would have arisen for that other reason regardless of any reasons mentioned in subsection (8)), and
(b) an excess or part of an excess is to be taken to arise for a reason mentioned in subsection (8) (so far as would not otherwise be the case) if, on making such of the relevant assumptions in relation to each payee as apply in relation to that payee (see subsections (4) and (5))), it could arise for a reason mentioned in subsection (8).
(4) These are the “relevant assumptions”—
(a) where a payee is not within the charge to a tax under the law of a payee jurisdiction because the payee benefits from an exclusion, immunity, exemption or relief (however described) under that law, assume that the exclusion, immunity, exemption or relief does not apply;
(b) where an amount of income is not included in the ordinary income of a payee for the purposes of a tax charged under the law of a payee jurisdiction because the payment or quasi-payment is not made in connection with a business carried on by the payee in that jurisdiction, assume that the payment or quasi-payment is made in connection with such a business;
(c) where a payee is not within the charge to a tax under the law of any territory because there is no territory where the payee is—
(i) resident for the purposes of a tax charged under the law of that territory, or
(ii) within the charge to a tax under the law of that territory as a result of having a permanent establishment in that territory,
assume that the payee is a company that is resident for tax purposes, and carries on a business in connection with which the payment or quasi-payment is made, in the United Kingdom.
(5) Where the relevant assumption in subsection (4)(c) applies in relation to a payee the following provisions are to be disregarded in relation to that payee for the purposes of subsection (3)(b)—
(a) section 441 of CTA 2009 (loan relationships for unallowable purposes);
(b) Part 4 (transfer pricing);
(c) this Part;
(d) Part 10 (corporate interest restriction).
(6) Case 2 applies where there are one or more amounts of ordinary income (“under-taxed amounts”) that—
(a) arise, by reason of the payment or quasi-payment, to a payee for a permitted taxable period, and
(b) are under taxed for a reason mentioned in subsection (8).
(7) Subject to subsection (9), for the purposes of subsection (6)(b) it does not matter whether an amount of ordinary income is under taxed for another reason as well (even if it would have been under taxed for that other reason regardless of any reason mentioned in subsection (8)).
(8) The reasons are—
(a) the dual treatment condition being met in relation to a hybrid transfer arrangement under, or in connection with, which the payment or quasi-payment is made (see section 259DB(4));
(b) the payment or quasi-payment being a substitute payment.
(9) For the purposes of this section, disregard—
(a) any excess or part of an excess mentioned in subsection (2), and
(b) any under-taxed amount,
in relation to which the financial trader exclusion applies (see section 259DE) or that arises as a result of a payee being a relevant investment fund (see section 259NA).
(10) Where case 1 applies, the amount of the hybrid transfer deduction/non-inclusion mismatch is equal to the excess that arises as mentioned in subsection (2)(b).
(11) Where case 2 applies, the amount of the hybrid transfer deduction/non-inclusion mismatch is equal to the sum of the amounts given in respect of each under-taxed amount by—
( UTA × ( FMR − R ) ) FMR
where—
“UTA” is the under-taxed amount;
“FMR” is the payee's full marginal rate (expressed as a percentage) for the permitted taxable period for which the under-taxed amount arises;
“R” is the highest rate (expressed as a percentage) at which tax is charged on the taxable profits in which the under-taxed amount is included, taking into account on a just and reasonable basis the effect of any credit for underlying tax.
(12) Where cases 1 and 2 both apply, the amount of the hybrid transfer deduction/non-inclusion mismatch is the sum of the amounts given by subsections (10) and (11).
(13) See section 259DD for the meaning of “permitted taxable period” and “under taxed”.
(1) This section has effect for the purposes of section 259DC.
(2) A taxable period of a payee is “permitted” in relation to an amount of ordinary income that arises as a result of the payment or quasi-payment if—
(a) the period begins before the end of 12 months after the end of the payment period, or
(b) the period begins at a later time and it is just and reasonable for the amount of ordinary income to arise for the period (rather than an earlier one).
(3) An amount of ordinary income of a payee, for a permitted taxable period, is “under taxed” if the highest rate at which tax is charged on the taxable profits of the payee in which the amount is included, taking into account on a just and reasonable basis the effect of any credit for underlying tax, is less than the payee's full marginal rate for that period.
(4) The payee's “full marginal rate” means the highest rate at which the tax that is chargeable on the taxable profits mentioned in subsection (3) could be charged on taxable profits, of the payee for the permitted taxable period, which include ordinary income that arises from, or in connection with, a financial instrument.
(5) A “credit for underlying tax” means a credit or relief given to reflect tax charged on profits that are wholly or partly used to fund (directly or indirectly) the payment or quasi-payment.
(6) A qualifying capital amount arising to a payee is treated as an amount of ordinary income of a payee and references to tax include any qualifying capital tax.
(7) For the purposes of case 2—
(a) a qualifying capital amount arising to a payee, for a permitted taxable period, is “under taxed” if the highest rate at which tax is charged on the amount, taking into account on a just and reasonable basis the effect of any credit for underlying tax, is less than the payee’s full marginal rate for that period,
(b) in determining the payee’s “full marginal rate”, the reference to the taxable profits mentioned in subsection (4) includes any qualifying capital amount, and
(c) in determining a “credit for underlying tax”, the reference to profits includes any qualifying capital amount.
(8) If the rate at which a qualifying capital tax is charged on a qualifying capital amount of a payee exceeds the rate at which tax would be charged on an amount of income of the payee, the excess is to be ignored.
(9) For the purposes of subsections (6) to (8) a “qualifying capital amount” means an amount of a capital nature on which a qualifying capital tax is charged.
(10) A qualifying capital tax is not regarded for this purpose as charged on an amount so far as—
(a) the amount is excluded, reduced or offset for the purposes of the tax by any exemption, exclusion, relief or credit that—
(i) applies specifically to all or part of the amount (as opposed to amounts of a capital nature generally), or
(ii) arises as a result of, or otherwise in connection with, a payment or quasi-payment that gives rise to the amount, or
(b) the tax is, or falls to be, refunded (and section 259BC(6) and (7) apply for the purposes of this paragraph with the necessary modifications).
(11) For the purposes of subsections (6) to (10) a “qualifying capital tax” means—
(a) capital gains tax or the charge to corporation tax in respect of chargeable gains, or
(b) any tax chargeable under the law of a territory outside the United Kingdom that corresponds to a United Kingdom tax mentioned in paragraph (a),
but does not include any tax chargeable at a nil rate.
(1) This section has effect for the purposes of section 259DC(9).
(2) The financial trader exclusion applies, in relation to an excess or part of an excess mentioned in section 259DC(2) or an under-taxed amount, where conditions A to C are met.
(3) Condition A is that the excess or part arises, or the under-taxed amount is under taxed, because the payment or quasi-payment—
(a) is a substitute payment,
(b) is treated, for the purposes of tax charged on a person, so as to reflect the fact that it is representative of the underlying return, and
(c) is brought into account by another person (“the financial trader”) in calculating the profits of a trade under—
(i) Part 3 of CTA 2009 (trading income), or
(ii) an equivalent provision of the law of a territory outside the United Kingdom.
(4) Condition B is that the financial trader also brings any associated payments into account as mentioned in subsection (3)(c).
(5) In subsection (4) “associated payment” means a payment or quasi-payment—
(a) in relation to which the financial trader is the payer or a payee, and
(b) that is made under, or in connection with, the underlying instrument or an arrangement that relates to the underlying instrument.
(6) Condition C is that—
(a) if the underlying return were to arise, and be paid directly, to the payee or payees in relation to the substitute payment, neither Chapter 3 (hybrid and other mismatches from financial instruments) nor any equivalent provision under the law of a territory outside the United Kingdom would apply, and
(b) the hybrid transfer arrangement under, or in connection with, which the substitute payment is made is not a structured arrangement (within the meaning given by section 259DA(7) and (8)).
259DF Counteraction where the payer is within the charge to corporation tax for the payment period
(1) This section applies where the payer is within the charge to corporation tax for the payment period.
(2) For corporation tax purposes, the relevant deduction that may be deducted from the payer's income for the payment period is reduced by an amount equal to the hybrid transfer deduction/non-inclusion mismatch mentioned in section 259DA(5).
259DG Counteraction where a payee is within the charge to corporation tax
(1) This section applies in relation to a payee where—
(a) the payee is within the charge to corporation tax for an accounting period some or all of which falls within the payment period, and
(b) it is reasonable to suppose that—
(i) neither section 259DF nor any equivalent provision under the law of a territory outside the United Kingdom applies, or
(ii) a provision of the law of a territory outside the United Kingdom that is equivalent to section 259DF applies, but does not fully counteract the hybrid transfer deduction/non-inclusion mismatch mentioned in section 259DA(5).
(2) A provision of the law of a territory outside the United Kingdom that is equivalent to section 259DF does not fully counteract that mismatch if (and only if)—
(a) it does not reduce the relevant deduction by the full amount of the mismatch, and
(b) the payer is still able to deduct some of the relevant deduction from income in calculating taxable profits.
(3) In this section “the relevant amount” is—
(a) in a case where subsection (1)(b)(i) applies, an amount equal to the hybrid transfer deduction/non-inclusion mismatch mentioned in section 259DA(5), or
(b) in a case where subsection (1)(b)(ii) applies, the lesser of—
(i) the amount by which that mismatch exceeds the amount by which it is reasonable to suppose the relevant deduction is reduced by a provision under the law of a territory outside the United Kingdom that is equivalent to section 259DF, and
(ii) the amount of the relevant deduction that may still be deducted as mentioned in subsection (2)(b).
(4) If the payee is the only payee, the relevant amount is to be treated as income arising to the payee for the counteraction period.
(5) If there is more than one payee, an amount equal to the payee's share of the relevant amount is to be treated as income arising to the payee for the counteraction period.
(6) The payee's share of the relevant amount is to be determined by apportioning that amount between all the payees on a just and reasonable basis, having regard (in particular)—
(a) to any arrangements as to profit sharing that may exist between some or all of the payees,
(b) to whom any under-taxed amounts (within the meaning given by section 259DC(6)) arise, and
(c) to whom any amounts of ordinary income that it would be reasonable to expect to arise as a result of the payment or quasi-payment, but that do not arise, would have arisen.
(7) An amount of income that is treated as arising under subsection (4) or (5) is chargeable under Chapter 8 of Part 10 of CTA 2009 (income not otherwise charged) (despite section 979(2) of that Act).
(8) The “counteraction period” means—
(a) if an accounting period of the payee coincides with the payment period, that accounting period, or
(b) otherwise, the first accounting period of the payee that is wholly or partly within the payment period.
(1) This Chapter contains provision that counteracts deduction/non-inclusion mismatches that it is reasonable to suppose would otherwise arise from payments or quasi-payments because the payer is a hybrid entity.
(2) The Chapter counteracts mismatches where the payer or a payee is within the charge to corporation tax and does so by altering the corporation tax treatment of the payer or a payee.
(3) Section 259EA contains the conditions that must be met for this Chapter to apply.
(4) Section 259EB defines “hybrid payer deduction/non-inclusion mismatch” and provides how the amount of the mismatch is to be calculated.
(5) Section 259EC contains provision that counteracts the mismatch where the payer is within the charge to corporation tax for the payment period.
(6) Section 259ED contains provision that counteracts the mismatch where a payee is within the charge to corporation tax and the mismatch is not fully counteracted by provision under the law of a territory outside the United Kingdom that is equivalent to section 259EC.
(7) See also—
(a) section 259BB for the meaning of “payment”, “quasi-payment”, “payment period”, “relevant deduction”, “payer” and “payee”, and
(b) section 259BE for the meaning of “hybrid entity”, “investor” and “investor jurisdiction”.
(1) This Chapter applies if conditions A to E are met.
(2) Condition A is that a payment or quasi-payment is made under, or in connection with, an arrangement.
(3) Condition B is that the payer is a hybrid entity (“the hybrid payer”).
(4) Condition C is that—
(a) the hybrid payer is within the charge to corporation tax for the payment period, or
(b) a payee is within the charge to corporation tax for an accounting period some or all of which falls within the payment period.
(5) Condition D is that it is reasonable to suppose that, disregarding the provisions mentioned in subsection (6), there would be a hybrid payer deduction/non-inclusion mismatch in relation to the payment or quasi-payment (see section 259EB).
(6) The provisions are—
(a) this Chapter and Chapters 6 to 10, and
(b) any equivalent provision under the law of a territory outside the United Kingdom.
(7) Condition E is that—
(a) it is a quasi-payment that is made as mentioned in subsection (2) and the hybrid payer is also a payee (see section 259BB(7)),
(b) the hybrid payer and a payee are in the same control group (see section 259NB) at any time in the period—
(i) beginning with the day on which the arrangement mentioned in subsection (2) is made, and
(ii) ending with the last day of the payment period, or
(c) that arrangement is a structured arrangement.
(8) The arrangement is “structured” if it is reasonable to suppose that—
(a) the arrangement is designed to secure a hybrid payer deduction/non-inclusion mismatch, or
(b) the terms of the arrangement share the economic benefit of the mismatch between the parties to the arrangement or otherwise reflect the fact that the mismatch is expected to arise.
(9) The arrangement may be designed to secure a hybrid payer deduction/non-inclusion mismatch despite also being designed to secure any commercial or other objective.
(10) Sections 259EC (cases where the hybrid payer is within the charge to corporation tax for the payment period) and 259ED (cases where a payee is within the charge to corporation tax) contain provision for the counteraction of the hybrid payer deduction/non-inclusion mismatch.
259EB Hybrid payer deduction/non-inclusion mismatches and their extent
(1) There is a “hybrid payer deduction/non-inclusion mismatch”, in relation to a payment or quasi-payment, if—
(a) the relevant deduction exceeds the sum of the amounts of ordinary income that, by reason of the payment or quasi-payment, arise to each payee for a permitted taxable period, and
(b) all or part of that excess arises by reason of the hybrid payer being a hybrid entity.
(1A) But there is no hybrid payer deduction/non-inclusion mismatch so far as the relevant deduction is—
(a) a debit in respect of amortisation that is brought into account under section 729 or 731 of CTA 2009 (writing down the capitalised cost of an intangible fixed asset), or
(b) an amount that is deductible in respect of amortisation under a provision of the law of a territory outside the United Kingdom that is equivalent to either of those sections.
(2) The amount of the hybrid payer deduction/non-inclusion mismatch is equal to the excess that arises as mentioned in subsection (1)(b).
(3) Subject to subsections (4A) to (4C) for the purposes of subsection (1)(b)—
(a) it does not matter whether the excess or part arises for another reason as well (even if it would have arisen for that other reason regardless of whether the hybrid payer is a hybrid entity), and
(b) an excess or part of an excess is to be taken to arise by reason of the hybrid payer being a hybrid entity (so far as would not otherwise be the case) if, on making such of the relevant assumptions in relation to each payee as apply in relation to that payee (see subsection (4)), it could arise by reason of the hybrid payer being a hybrid entity.
(4) These are the “relevant assumptions”—
(a) where a payee is not within the charge to a tax under the law of a payee jurisdiction because the payee benefits from an exclusion, immunity, exemption or relief (however described) under that law, assume that the exclusion, immunity, exemption or relief does not apply;
(b) where an amount of income is not included in the ordinary income of a payee for the purposes of a tax charged under the law of a payee jurisdiction because the payment or quasi-payment is not made in connection with a business carried on by the payee in that jurisdiction, assume that the payment or quasi-payment is made in connection with such a business.
(4A) No excess is to be taken to arise by reason of a hybrid payer being a hybrid entity for the purposes of subsection (1)(b) so far as it is attributable to a qualifying institutional investor based in a territory under the law of which—
(a) the income or profits of the hybrid entity are treated as income and profits of the investor, or
(b) the hybrid entity is not regarded as a distinct and separate person to the investor.
(4B) Excess is attributable to such a qualifying institutional investor to the extent that ordinary income (arising by reason of the payment or quasi-payment) would fall to be brought into account by the investor if—
(a) where subsection (4A)(a) applies, under the law of the territory the income or profits of the hybrid entity were not treated as income and profits of the investor, and
(b) where subsection (4A)(b) applies, under the law of the territory the hybrid entity were regarded as a distinct and separate person to the investor.
(4C) To determine if a “qualifying institutional investor” is “based” in a particular territory for the purposes of subsections (4A) and (4B) see section 259NDA.
(5) A taxable period of a payee is “permitted” in relation to an amount of ordinary income that arises as a result of the payment or quasi-payment if—
(a) the period begins before the end of 12 months after the end of the payment period, or
(b) where the period begins after that—
(i) a claim has been made for the period to be a permitted period in relation to the amount of ordinary income, and
(ii) it is just and reasonable for the amount of ordinary income to arise for that taxable period rather than an earlier period.
259EC Counteraction where the hybrid payer is within the charge to corporation tax for the payment period
(1) This section applies where the hybrid payer is within the charge to corporation tax for the payment period.
(2) For corporation tax purposes, the relevant deduction so far as it does not exceed the hybrid payer deduction/non-inclusion mismatch mentioned in section 259EA(5) (“the restricted deduction”) may not be deducted from the hybrid payer's income for the payment period unless it is deducted from dual inclusion income for that period.
(3) So much of the restricted deduction (if any) as, by virtue of subsection (2), cannot be deducted from the payer's income for the payment period—
(a) is carried forward to subsequent accounting periods of the payer, and
(b) for corporation tax purposes, may be deducted from dual inclusion income for any such period (and not from any other income), so far as it cannot be deducted under this paragraph for an earlier period.
(4) In this section “dual inclusion income” of the payer for an accounting period means an amount that ... is both—
(a) ordinary income of the payer for that period for corporation tax purposes, and
(b) ordinary income of an investor in the payer for a permitted taxable period for the purposes of any tax charged under the law of an investor jurisdiction.
(5) A taxable period of an investor is “permitted” for the purposes of paragraph (b) of subsection (4) if—
(a) the period begins before the end of 12 months after the end of the accounting period mentioned in paragraph (a) of that subsection, or
(b) where the period begins after that—
(i) a claim has been made for the period to be a permitted period in relation to the amount of ordinary income, and
(ii) it is just and reasonable for the amount of ordinary income to arise for that taxable period rather than an earlier period.
(6) For the purposes of subsection (4)(b) the reference to ordinary income of an investor in the payer for a permitted taxable period for the purposes of any tax charged under the law of an investor jurisdiction is taken to include a reference to an amount that meets the following requirements.
(7) The requirements are that—
(a) the amount may not be deducted under the law of any territory from the income of any person for the purposes of calculating taxable profits for a relevant taxable period;
(b) in the case of a person resident for tax purposes in a zero-tax territory, the amount could not be deducted from the income of the person for the purposes of calculating taxable profits for a relevant taxable period if the person were resident in the United Kingdom for tax purposes; and
(c) under the law of the investor jurisdiction, the amount could be deducted from the income of the investor in the hybrid payer for the purposes of calculating the investor's taxable profits for a relevant taxable period if the following assumptions were made.
(8) The assumptions are that, for the purposes of identifying the recipient of the amount for tax purposes in the investor jurisdiction—
(a) condition B in section 259BE(3) was not met by the hybrid payer as respects the investor jurisdiction, and
(b) as a result of that, the hybrid payer was not a hybrid entity as respects the investor jurisdiction.
(9) In subsection (7), “zero-tax territory”, in relation to a person, means a territory in which the person—
(a) is not within the charge to tax, or
(b) is within the charge to tax at a nil rate.
(10) Section 259B(5) (determination of residence where no concept of residence for tax purposes exists) applies to the reference in subsection (7)(b) to a person's residence for tax purposes in a zero-tax territory as it applies to references to a person's residence for tax purposes in Chapter 8 or 11.
(11) A taxable period of an investor or another person is “relevant” for the purposes of subsection (7) if—
(a) the period begins before the end of 12 months after the end of the accounting period mentioned in subsection (4)(a), or
(b) where the period begins after that, it is just and reasonable for the question of whether the amount concerned may or could be deducted in calculating taxable profits to be determined by reference to that taxable period rather than an earlier period.
259ED Counteraction where a payee is within the charge to corporation tax
(1) This section applies in relation to a payee where—
(a) the payee is within the charge to corporation tax for an accounting period some or all of which falls within the payment period, and
(b) it is reasonable to suppose that—
(i) no provision under the law of a territory outside the United Kingdom that is equivalent to section 259EC applies, or
(ii) such a provision does apply, but does not fully counteract the hybrid payer deduction/non-inclusion mismatch mentioned in section 259EA(5).
(2) A provision of the law of a territory outside the United Kingdom that is equivalent to section 259EC does not fully counteract that mismatch if (and only if)—
(a) the amount of the relevant deduction that the provision prevents from being deducted from income of the hybrid payer, for the payment period, other than dual inclusion income, is less than the amount of the mismatch, and
(b) the hybrid payer is still able to deduct some of the relevant deduction from income, for the payment period, that is not dual inclusion income.
(3) In this section “the relevant amount” is—
(a) in a case where subsection (1)(b)(i) applies, an amount equal to the hybrid payer deduction/non-inclusion mismatch mentioned in section 259EA(5), or
(b) in a case where subsection (1)(b)(ii) applies, the lesser of—
(i) the amount by which that mismatch exceeds the amount of the relevant deduction that it is reasonable to suppose is prevented, by a provision of the law of a territory outside the United Kingdom that is equivalent to section 259EC, from being deducted from income of the hybrid payer, for the payment period, other than dual inclusion income, and
(ii) the amount of the relevant deduction that may still be deducted as mentioned in subsection (2)(b).
(4) If the payee is the only payee, an amount equal to—
(a) the relevant amount, less
(b) any dual inclusion income,
is to be treated as income arising to the payee for the counteraction period.
(5) If there is more than one payee, an amount equal to—
(a) the payee's share of the relevant amount, less
(b) the relevant proportion of any dual inclusion income,
is to be treated as income arising to the payee for the counteraction period.
(6) The payee's share of the relevant amount is to be determined by apportioning that amount between all the payees on a just and reasonable basis, having regard (in particular)—
(a) to any arrangements as to profit sharing that may exist between some or all of the payees, and
(b) to whom any amounts of ordinary income that it would be reasonable to expect to arise as a result of the payment or quasi-payment, but that do not arise, would have arisen.
(7) The “relevant” proportion of any dual inclusion income for the payment period is the same as the proportion of the relevant amount apportioned to the payee in accordance with subsection (6).
(8) An amount of income that is treated as arising under subsection (4) or (5) is chargeable under Chapter 8 of Part 10 of CTA 2009 (income not otherwise charged) (despite section 979(2) of that Act).
(9) In this section—
“counteraction period” means—
if an accounting period of the payee coincides with the payment period, that accounting period, or
otherwise, the first accounting period of the payee that is wholly or partly within the payment period;
“dual inclusion income” means an amount that ... is both—
ordinary income of the payer for the payment period, and
ordinary income of an investor in the payer for a permitted taxable period for the purposes of a tax charged under the law of an investor jurisdiction.
(10) A taxable period of an investor is “permitted” for the purposes of subsection (9) if—
(a) the period begins before the end of 12 months after the end of the payment period, or
(b) where the period begins after that—
(i) a claim has been made for the period to be a permitted period in relation to the amount of ordinary income, and
(ii) it is just and reasonable for the amount of ordinary income to arise for that taxable period rather than an earlier period.
(1) This Chapter contains provision that counteracts certain excessive deductions that arise in relation to transfers of money or money's worth made, or taken to be made, by a multinational company's permanent establishment in the United Kingdom to the company in the parent jurisdiction.
(2) The Chapter counteracts such deductions by altering the corporation tax treatment of the company.
(3) Section 259FA contains the conditions that must be met for this Chapter to apply.
(4) Subsection (3) of that section defines “multinational company” and “the parent jurisdiction”.
(5) Subsection (8) of that section defines “the excessive PE deduction”.
(6) Section 259FB contains provision for the counteraction of the excessive PE deduction.
(7) See also section 259BF for the meaning of “permanent establishment”.
(1) This Chapter applies if conditions A to C are met.
(2) Condition A is that a company is a multinational company.
(3) For the purposes of this Chapter, a company is a multinational company if—
(a) it is resident in a territory outside the United Kingdom (“the parent jurisdiction”) for the purposes of a tax charged under the law of that territory, and
(b) it is within the charge to corporation tax because it carries on a business in the United Kingdom through a permanent establishment in the United Kingdom.
(4) Condition B is that, disregarding the provisions mentioned in subsection (5), there is an amount (“the PE deduction”) that—
(a) may (in substance) be deducted from the company's income for the purposes of calculating the company's taxable profits for an accounting period (“the relevant PE period”) for corporation tax purposes, ...
(b) is in respect of a transfer of money or money's worth from the company in the United Kingdom to the company in the parent jurisdiction that—
(i) is actually made, or
(ii) is (in substance) treated as being made for corporation tax purposes , and
(c) is not in respect of the financing cost of loan capital which the permanent establishment is assumed to have by virtue of section 21(2) of CTA 2009 for the purpose of applying subsection (1) of that section (the separate enterprise principle).
(4A) For the purposes of this section “the PE deduction” does not include—
(a) a debit in respect of amortisation that is brought into account under section 729 or 731 of CTA 2009 (writing down the capitalised cost of an intangible fixed asset), or
(b) an amount that is deductible in respect of amortisation under a provision of the law of a territory outside the United Kingdom that is equivalent to either of those sections.
(5) The provisions are—
(a) this Chapter and Chapters 7 to 10, and
(b) any equivalent provision under the law of a territory outside the United Kingdom.
(6) Condition C is that it is reasonable to suppose that, disregarding the provisions mentioned in subsection (5)—
(a) the circumstances giving rise to the PE deduction will not result in—
(i) an increase in the taxable profits of the company for any permitted taxable period, or
(ii) a reduction of a loss made by the company for any permitted taxable period,
for the purposes of a tax charged under the law of the parent jurisdiction, or
(b) those circumstances will result in such an increase or reduction for one or more permitted taxable periods, but the PE deduction exceeds the aggregate effect on taxable profits.
(7) “The aggregate effect on taxable profits” is the sum of—
(a) any increases, resulting from the circumstances giving rise to the PE deduction, in the taxable profits of the company, for a permitted taxable period, for the purposes of a tax charged under the law of the parent jurisdiction, and
(b) any amounts by which a loss made by the company, for a permitted taxable period, for the purposes of a tax charged under the law of the parent jurisdiction, is reduced as a result of the circumstances giving rise to the PE deduction.
(7A) For the purposes of subsections (6) and (7) any increase in taxable profits or reduction of losses is to be ignored in any case where tax is charged at a nil rate under the law of the parent jurisdiction.
(8) In this Chapter “the excessive PE deduction” means—
(a) where paragraph (a) of subsection (6) applies, the PE deduction, or
(b) where paragraph (b) of subsection (6) applies, the PE deduction so far as it is reasonable to suppose that it exceeds the aggregate effect on taxable profits.
(9) For the purposes of subsections (6) and (7) a taxable period of the company, for the purposes of a tax charged under the law of the parent jurisdiction, is “permitted” if—
(a) the period begins before the end of 12 months after the end of the relevant PE period, or
(b) where the period begins after that—
(i) a claim has been made for the period to be a permitted period for the purposes of subsections (6) and (7), and
(ii) it is just and reasonable for the circumstances giving rise to the PE deduction to affect the profits or loss made for that period rather than an earlier period.
(10) Section 259FB contains provision for counteracting the excessive PE deduction.
(1) For corporation tax purposes, the excessive PE deduction may not be deducted from the company's income for the relevant PE period unless it is deducted from dual inclusion income for that period.
(2) So much of the excessive PE deduction (if any) as, by virtue of subsection (1), cannot be deducted from the company's income for the relevant PE period—
(a) is carried forward to subsequent accounting periods of the company, and
(b) for corporation tax purposes, may be deducted from dual inclusion income of the company for any such period (and not from any other income), so far as it cannot be deducted under this paragraph for an earlier period.
(3) In this section “dual inclusion income” of the company for an accounting period means an amount that is both—
(a) ordinary income of the company for that period for corporation tax purposes, and
(b) ordinary income of the company for a permitted taxable period for the purposes of a tax charged under the law of the parent jurisdiction.
(4) A taxable period of the company is “permitted” for the purposes of paragraph (b) of subsection (3) if—
(a) the period begins before the end of 12 months after the end of the accounting period mentioned in paragraph (a) of that subsection, or
(b) where the period begins after that—
(i) a claim has been made for the period to be a permitted period in relation to the amount of ordinary income, and
(ii) it is just and reasonable for the amount of ordinary income to arise for that taxable period rather than an earlier period.
(5) For the purposes of subsection (3)(b) the reference to ordinary income of the company for a permitted taxable period for the purposes of a tax charged under the law of the parent jurisdiction is taken to include a reference to excessive PE inclusion income of the company.
(6) Section 259FC defines “excessive PE inclusion income” of the company for this purpose.
(1) In section 259FB(5), “excessive PE inclusion income” of the company means—
(a) where paragraph (a) of subsection (4) applies, the PE inclusion income of the company, or
(b) where paragraph (b) of that subsection applies, the PE inclusion income of the company so far as it is reasonable to suppose that it exceeds the aggregate effect on taxable profits.
(2) For this purpose, “PE inclusion income” of the company means an amount in respect of which conditions A and B are met.
(3) Condition A is that the amount is in respect of a transfer of money or money's worth from the company in the parent jurisdiction to the company in the United Kingdom that—
(a) is actually made, or
(b) is (in substance) treated as being made for corporation tax purposes.
(4) Condition B is that it is reasonable to suppose that—
(a) the circumstances giving rise to the amount will not result in—
(i) a reduction in the taxable profits of the company for a relevant taxable period, or
(ii) an increase in a loss made by the company for a relevant taxable period,
for the purposes of a tax charged under the law of the parent jurisdiction, or
(b) those circumstances will result in such a reduction or increase for one or more relevant taxable periods, but the amount exceeds the aggregate effect on taxable profits.
(5) “The aggregate effect on taxable profits” is the sum of—
(a) any reductions, resulting from the circumstances giving rise to the amount, in the taxable profits of the company, for a relevant taxable period, for the purposes of a tax charged under the law of the parent jurisdiction, and
(b) any amounts by which a loss made by the company, for a relevant taxable period, for the purposes of a tax charged under the law of the parent jurisdiction, is increased as a result of the circumstances giving rise to the amount.
(6) For the purposes of subsections (4) and (5), any reduction in taxable profits or increase of losses is to be ignored in any case where tax is charged at a nil rate under the law of the parent jurisdiction.
(7) A taxable period of the company is “relevant” for the purposes of subsections (4) and (5) if—
(a) the period begins before the end of 12 months after the end of the accounting period mentioned in section 259FB(3)(a), or
(b) where the period begins after that, it is just and reasonable for the question of whether the circumstances giving rise to the amount will result in a reduction in taxable profits or an increase in a loss to be determined by reference to that taxable period rather than an earlier period.
(1) This Chapter contains provision that counteracts deduction/non-inclusion mismatches that it is reasonable to suppose would otherwise arise from payments or quasi-payments because a payee is a hybrid entity.
(2) The Chapter counteracts mismatches by—
(a) altering the corporation tax treatment of the payer for the payment period,
(b) treating income chargeable to corporation tax as arising to an investor who is within the charge to corporation tax, or
(c) treating income chargeable to corporation tax as arising to a payee that is a hybrid entity and a limited liability partnership.
(3) Section 259GA contains the conditions that must be met for this Chapter to apply.
(4) Section 259GB defines “hybrid payee deduction/non-inclusion mismatch” and provides how the amount of the mismatch is to be calculated.
(5) Section 259GC contains provision that counteracts the mismatch where the payer is within the charge to corporation tax for the payment period.
(6) Section 259GD contains provision that counteracts the mismatch where an investor in the payee is within the charge to corporation tax and the mismatch is not fully counteracted by section 259GC or an equivalent provision under the law of a territory outside the United Kingdom.
(7) Section 259GE contains provision that counteracts the mismatch where a payee is a hybrid entity and limited liability partnership and the mismatch is not otherwise fully counteracted.
(8) See also—
(a) section 259BB for the meaning of “payment”, “quasi-payment”, “payment period”, “relevant deduction”, “payer” and “payee”;
(b) section 259BE for the meaning of “hybrid entity”, “investor” and “investor jurisdiction”.
(1) This Chapter applies if conditions A to E are met.
(2) Condition A is that a payment or quasi-payment is made under, or in connection with, an arrangement.
(3) Condition B is that a payee is a hybrid entity (a “hybrid payee”).
(4) Condition C is that—
(a) the payer is within the charge to corporation tax for the payment period,
(b) an investor in a hybrid payee is within the charge to corporation tax for an accounting period some or all of which falls within the payment period, or
(c) a hybrid payee is a limited liability partnership.
(5) Condition D is that it is reasonable to suppose that, disregarding the provisions mentioned in subsection (6), there would be a hybrid payee deduction/non-inclusion mismatch in relation to the payment or quasi-payment (see section 259GB).
(6) The provisions are—
(a) this Chapter and Chapters 8 to 10, and
(b) any equivalent provision under the law of a territory outside the United Kingdom.
(7) Condition E is that—
(a) it is a quasi-payment that is made as mentioned in subsection (2) and the payer is also a hybrid payee (see section 259BB(7)),
(b) the payer and a hybrid payee or an investor in a hybrid payee are in the same control group (see section 259NB) at any time in the period—
(i) beginning with the day on which the arrangement mentioned in subsection (2) is made, and
(ii) ending with the last day of the payment period, or
(c) that arrangement is a structured arrangement.
(8) The arrangement is “structured” if it is reasonable to suppose that—
(a) the arrangement is designed to secure a hybrid payee deduction/non-inclusion mismatch, or
(b) the terms of the arrangement share the economic benefit of the mismatch between the parties to the arrangement or otherwise reflect the fact that the mismatch is expected to arise.
(9) The arrangement may be designed to secure a hybrid payee deduction/non-inclusion mismatch despite also being designed to secure any commercial or other objective.
(10) The following provisions contain provision for the counteraction of the hybrid payee deduction/non-inclusion mismatch—
(a) section 259GC (cases where the payer is within the charge to corporation tax for the payment period),
(b) section 259GD (cases where an investor in a hybrid payee is within the charge to corporation tax), and
(c) section 259GE (cases where a hybrid payee is a limited liability partnership).
259GB Hybrid payee deduction/non-inclusion mismatches and their extent
(1) There is a “hybrid payee deduction/non-inclusion mismatch”, in relation to a payment or quasi-payment, if—
(a) the relevant deduction exceeds the sum of the amounts of ordinary income that, by reason of the payment or quasi-payment, arise to each payee for a permitted taxable period, and
(b) all or part of that excess arises by reason of one or more payees being hybrid entities.
(1A) But there is no hybrid payee deduction/non-inclusion mismatch so far as the relevant deduction is—
(a) a debit in respect of amortisation that is brought into account under section 729 or 731 of CTA 2009 (writing down the capitalised cost of an intangible fixed asset), or
(b) an amount that is deductible in respect of amortisation under a provision of the law of a territory outside the United Kingdom that is equivalent to either of those sections.
(2) The extent of the hybrid payee deduction/non-inclusion mismatch is equal to the excess that arises as mentioned in subsection (1)(b).
(2A) No excess is to be taken to arise by reason of a hybrid payee being a hybrid entity for the purposes of subsection (1)(b) so far as it is attributable to a qualifying institutional investor based in a territory under the law of which—
(a) the income or profits of the hybrid entity are not treated as income or profits of the investor, or
(b) the hybrid entity is regarded as a distinct and separate person to the investor.
(2B) Excess is attributable to such a qualifying institutional investor to the extent that ordinary income (arising by reason of the payment or quasi-payment) would fall to be brought into account by the investor if—
(a) where subsection (2A)(a) applies, under the law of the territory the income or profits of the hybrid entity were treated as income or profits of the investor, and
(b) where subsection (2A)(b) applies, under the law of the territory the hybrid entity were not regarded as a distinct and separate person to the investor.
(2C) To determine if a “qualifying institutional investor” is “based” in a particular territory for the purposes of subsections (2A) and (2B) see section 259NDA.
(3) A relevant amount of the excess is to be taken (so far as would not otherwise be the case) to arise as mentioned in subsection (1)(b) where—
(a) a payee is a hybrid entity,
(b) there is no territory—
(i) where that payee is resident for the purposes of a tax charged at a higher rate than nil under the law of that territory, or
(ii) under the law of which ordinary income arises to that payee, by reason of the payment or quasi-payment, for the purposes of a tax that is charged on that payee by virtue of that payee having a permanent establishment in that territory, and
(c) no income arising to that payee, by reason of the payment or quasi-payment, is brought into account in calculating chargeable profits for the purposes of the CFC charge or a foreign CFC charge.
(4) For the purposes of subsection (3), the “relevant amount” of the excess is the lesser of—
(a) the amount of the excess, and
(b) an amount equal to the amount of ordinary income that it is reasonable to suppose would, by reason of the payment or quasi-payment, arise to the payee for corporation tax purposes, if—
(i) the payee were a company, and
(ii) the payment or quasi-payment were made in connection with a trade carried on by the payee in the United Kingdom through a permanent establishment in the United Kingdom.
(4A) In applying subsection (4)(b) in a case where the payee is a partnership or a relevant transparent entity, it is to be assumed that no amount of ordinary income arises to the payee, by reason of the payment or quasi-payment, if—
(a) a partner in the partnership , or a member of the entity, is entitled to the amount, and
(b) having regard only to—
(i) the law of the territory where the partnership or entity is established, and
(ii) the law of the territory where the partner or member is resident for tax purposes or, if the partner or member is not resident anywhere for tax purposes, where the partner or member is established,
the payee would not be regarded as a hybrid entity.
(4AA) Subsection (4AB) applies in relation to a payment or quasi-payment if—
(a) one or more of the payees is a partnership or a relevant transparent entity,
(b) there is a territory under the law of which an amount of ordinary income would arise, or would potentially arise, to a hybrid entity as a result of the circumstances giving rise to the relevant deduction if the entity were a person resident in that territory for the purposes of a tax charged under the law of that territory, and
(c) that hybrid entity is not (ignoring subsection (4AB)(b)) a payee.
(4AB) Where this subsection applies—
(a) if any such hybrid entity is not either a partnership or a relevant transparent entity, subsection (4A) does not apply, or
(b) otherwise, every such hybrid entity is to be treated as a payee for the purposes of determining, for the purposes of subsection (1)(b), if an excess arises by reason of one or more payees being hybrid entities.
(4B) In subsections (4A) to (4AB) and (4C) “partnership” has the meaning given by section 259NE(4).
(4C) An entity is a “relevant transparent entity” if—
(a) the entity is not a partnership,
(b) the entity is legally constituted in a territory outside the United Kingdom,
(c) all of the entity’s income or profits for the purposes of a tax charged under the law of that territory are treated (or would be if there were any) for the purposes of that tax as the income or profits of its members, and
(d) any such tax that is, or that would be, charged on such a member that is resident for tax purposes in that territory is not charged at a nil rate.
(4D) For the purposes of subsection (4C), a person is a “member” of an entity if the person is entitled to a proportion of the profits of the entity as a result of—
(a) where the entity has share capital, holding shares forming part of that capital, or
(b) where the entity does not have share capital, an entitlement similar to that which would be enjoyed if the entity had share capital and the person held shares forming part of that capital.
(5) In subsection (3)(c) “chargeable profits”—
(a) in relation to the CFC charge, has the same meaning as in Part 9A (see section 371VA), and
(b) in relation to a foreign CFC charge, means the concept (by whatever name known) corresponding to chargeable profits within the meaning of that Part.
(6) A taxable period of a payee is “permitted” in relation to an amount of ordinary income that arises as a result of the payment or quasi-payment if—
(a) the period begins before the end of 12 months after the end of the payment period, or
(b) where the period begins after that—
(i) a claim has been made for the period to be a permitted period in relation to the amount of ordinary income, and
(ii) it is just and reasonable for the amount of ordinary income to arise for that taxable period rather than an earlier period.
259GC Counteraction where the payer is within the charge to corporation tax for the payment period
(1) This section applies where the payer is within the charge to corporation tax for the payment period.
(2) For corporation tax purposes, the relevant deduction that may be deducted from the payer's income for the payment period is reduced by an amount equal to the hybrid payee deduction/non-inclusion mismatch mentioned in section 259GA(5).
259GD Counteraction where the investor is within the charge to corporation tax
(1) This section applies in relation to an investor in a hybrid payee where—
(a) the investor is within the charge to corporation tax for an accounting period some or all of which falls within the payment period, and
(b) it is reasonable to suppose that—
(i) neither section 259GC nor any equivalent provision under the law of a territory outside the United Kingdom applies, or
(ii) a provision of the law of a territory outside the United Kingdom that is equivalent to section 259GC applies, but does not fully counteract the hybrid payee deduction/non-inclusion mismatch mentioned in section 259GA(5).
(2) A provision of the law of a territory outside the United Kingdom that is equivalent to section 259GC does not fully counteract that mismatch if (and only if)—
(a) it does not reduce the relevant deduction by the full amount of the mismatch, and
(b) the payer is still able to deduct some of the relevant deduction from income in calculating taxable profits.
(3) In this section “the relevant amount” is—
(a) in a case where subsection (1)(b)(i) applies, an amount equal to the hybrid payee deduction/non-inclusion mismatch, or
(b) in a case where subsection (1)(b)(ii) applies, the lesser of—
(i) the amount by which that mismatch exceeds the amount by which it is reasonable to suppose the relevant deduction is reduced by a provision of the law of a territory outside the United Kingdom that is equivalent to section 259GC, and
(ii) the amount of the relevant deduction that may still be deducted as mentioned in subsection (2)(b).
(4) If the investor is the only investor in the hybrid payee, the appropriate proportion of the relevant amount is to be treated as income arising to the investor for the counteraction period.
(5) If there is more than one investor in the hybrid payee, an amount equal to the investor's share of the appropriate proportion of the relevant amount is to be treated as income arising to the investor for the counteraction period.
(6) For the purposes of subsections (4) and (5) the “appropriate proportion of the relevant amount”—
(a) if the hybrid payee is the only hybrid payee, is all of the relevant amount, or
(b) if there is more than one hybrid payee, is the proportion of the relevant amount apportioned to the hybrid payee upon an apportionment of that amount between all the hybrid payees on a just and reasonable basis having regard (in particular) to—
(i) any arrangements as to profit sharing that may exist between some or all of the payees, and
(ii) the extent to which it is reasonable to suppose that the hybrid payee deduction/non-inclusion mismatch mentioned in section 259GA(5) arises by reason of each hybrid payee being a hybrid entity.
(7) The investor's share of the appropriate proportion of the relevant amount is to be determined by apportioning that proportion of that amount between all the investors in the hybrid payee on a just and reasonable basis, having regard (in particular) to any arrangements as to profit sharing that may exist between some or all of those investors.
(8) An amount of income that is treated as arising under subsection (4) or (5) is chargeable under Chapter 8 of Part 10 of CTA 2009 (income not otherwise charged) (despite section 979(23) of that Act).
(9) The “counteraction period” means—
(a) if an accounting period of the investor coincides with the payment period, that accounting period, or
(b) otherwise, the first accounting period of the investor that is wholly or partly within the payment period.
259GE Counteraction where a hybrid payee is an LLP
(1) This section applies in relation to a hybrid payee where the hybrid payee is a limited liability partnership and it is reasonable to suppose that—
(a) none of the following provisions applies—
(i) section 259GC;
(ii) section 259GD;
(iii) any provision under the law of a territory outside the United Kingdom that is equivalent to either of those sections, or
(b) one or more of those provisions apply, but the hybrid payee deduction/non-inclusion mismatch mentioned in section 259GA(5) is not fully counteracted.
(2) The mismatch is not fully counteracted if (and only if), after the application of such of those provisions as apply—
(a) the relevant deduction is not reduced by the full amount of the mismatch,
(b) the payer is still able to deduct some of the relevant deduction from income in calculating taxable profits, and
(c) the lesser of—
(i) the difference between the amount of the mismatch and the amount by which it is reasonable to suppose the relevant deduction is reduced, and
(ii) the amount of the relevant deduction that may still be deducted,
exceeds the sum of any amounts of income treated as arising under section 259GD or any equivalent provision under the law of a territory outside the United Kingdom.
(3) In this section “the relevant amount” is—
(a) in a case where subsection (1)(a) applies, an amount equal to the hybrid payee deduction/non-inclusion mismatch mentioned in section 259GA(5), or
(b) in a case where subsection (1)(b) applies, an amount equal to the excess mentioned in subsection (2)(c).
(4) If the hybrid payee is the only hybrid payee, an amount equal to the relevant amount is to be treated as income arising to the hybrid payee on the last day of the payment period.
(5) If there is more than one hybrid payee, an amount equal to the hybrid payee's share of the relevant amount is to be treated as income arising to the hybrid payee on the last day of the payment period.
(6) The hybrid payee's share of the relevant amount is to be determined by apportioning that amount between all the hybrid payees on a just and reasonable basis, having regard (in particular) to—
(a) any arrangements as to profit sharing that may exist between some or all of the payees, and
(b) the extent to which it is reasonable to suppose that the hybrid payee deduction/non-inclusion mismatch mentioned in section 259GA(5) arises by reason of each hybrid payee being a hybrid entity.
(7) An amount of income that is treated as arising under subsection (4) or (5) is chargeable to corporation tax on the hybrid payee (as opposed to being chargeable to tax on any of its members) under Chapter 8 of Part 10 of CTA 2009 (income not otherwise charged) (despite section 979(2) of that Act).
(8) Section 863 of ITTOIA 2005 (treatment of certain limited liability partnerships for income tax purposes) and section 1273 of CTA 2009 (treatment of certain limited liability partnerships for corporation tax purposes) are disapplied in relation to the hybrid payee to the extent necessary for the purposes of subsection (7).
(9) This section is to be disregarded for the purposes of determining whether the hybrid payee is within the charge to corporation tax for the purposes of any other provision of this Part, except section 259M (anti-avoidance).
(1) This Chapter contains provision that counteracts deduction/non-inclusion mismatches that it is reasonable to suppose would otherwise arise from payments or quasi-payments, where the payer is within the charge to corporation tax, because a payee is multinational company.
(2) The Chapter counteracts mismatches by altering the corporation tax treatment of the payer.
(3) Section 259HA contains the conditions that must be met for this Chapter to apply.
(4) Subsection (4) of that section defines “multinational company”, “parent jurisdiction” and “PE jurisdiction”.
(5) Section 259HB defines “multinational payee deduction/non-inclusion mismatch” and provides how the amount of the mismatch is to be calculated.
(6) Section 259HC contains provision that counteracts the mismatch.
(7) See also—
(a) section 259BB for the meaning of “payment”, “quasi-payment”, “payment period”, “relevant deduction”, “payer” and “payee”;
(b) section 259BF for the meaning of “permanent establishment”.
(1) This Chapter applies if conditions A to E are met.
(2) Condition A is that a payment or quasi-payment is made under, or in connection with, an arrangement.
(3) Condition B is that a payee is a multinational company.
(4) For the purposes of this Chapter, a company is a “multinational company” if—
(a) it is resident in a territory (“the parent jurisdiction”) for tax purposes under the law of that territory, and
(b) it is regarded as carrying on a business in another territory (“the PE jurisdiction”) through a permanent establishment in that territory (whether it is so regarded under the law of the parent jurisdiction, the PE jurisdiction or any other territory).
(5) Condition C is that—
(a) the payer is within the charge to corporation tax for the payment period, or
(b) the multinational company—
(i) is UK resident for the payment period, and
(ii) under the law of the parent jurisdiction, is regarded as carrying on a business in the PE jurisdiction through a permanent establishment in that territory but, under the law of the PE jurisdiction, is not regarded as doing so.
(6) Condition D is that it is reasonable to suppose that, disregarding the provisions mentioned in subsection (7), there would be a multinational payee deduction/non-inclusion mismatch in relation to the payment or quasi-payment (see section 259HB).
(7) The provisions are—
(a) this Chapter and Chapters 9 and 10, and
(b) any equivalent provision under the law of a territory outside the United Kingdom.
(8) Condition E is that—
(a) it is a quasi-payment that is made as mentioned in subsection (2) and the payer is also a payee (see section 259BB(7)),
(b) the payer and the multinational company are in the same control group (see section 259NB) at any time in the period—
(i) beginning with the day on which the arrangement mentioned in subsection (2) is made, and
(ii) ending with the last day of the payment period, or
(c) that arrangement is a structured arrangement.
(9) The arrangement is “structured” if it is reasonable to suppose that—
(a) the arrangement is designed to secure a multinational payee deduction/non-inclusion mismatch, or
(b) the terms of the arrangement share the economic benefit of the mismatch between the parties to the arrangement or otherwise reflect the fact that the mismatch is expected to arise.
(10) The arrangement may be designed to secure a multinational payee deduction/non-inclusion mismatch despite also being designed to secure any commercial or other objective.
(11) Section 259HC contains provision for the counteraction of the multinational payee deduction/non-inclusion mismatch.
259HB Multinational payee deduction/non-inclusion mismatches and their extent
(1) There is a “multinational payee deduction/non-inclusion mismatch”, in relation to a payment or quasi-payment, if—
(a) the relevant deduction exceeds the sum of the amounts of ordinary income that, by reason of the payment or quasi-payment, arise to each payee for a permitted taxable period, and
(b) all or part of that excess arises by reason of one or more payees being multinational companies.
(1A) But there is no multinational payee deduction/non-inclusion mismatch so far as the relevant deduction is—
(a) a debit in respect of amortisation that is brought into account under section 729 or 731 of CTA 2009 (writing down the capitalised cost of an intangible fixed asset), or
(b) an amount that is deductible in respect of amortisation under a provision of the law of a territory outside the United Kingdom that is equivalent to either of those sections.
(2) The extent of the multinational payee deduction/non-inclusion mismatch is equal to the excess that arises as mentioned in subsection (1)(b).
(2A) The excess is to be taken (so far as would not otherwise be the case) to arise for the purposes of subsection (1)(b) by reason of a payee being a multinational company so far as it would not arise if it is assumed—
(a) that the company is not regarded, under the law of the parent jurisdiction, the PE jurisdiction or any other territory, as carrying on a business in the PE jurisdiction through a permanent establishment in that jurisdiction, and
(b) that, for tax purposes under the law of the parent jurisdiction, all amounts of ordinary income arising, by reason of the payment or quasi-payment, to the company are regarded as arising to it in that jurisdiction and nowhere else.
(3) For the purposes of subsection (1)(b)—
(a) where the law of a PE jurisdiction in relation to a payee that is a multinational company makes no provision for charging tax on any companies, so much of the excess as arises as a result is to be taken not to arise by reason of that payee being a multinational company, but
(b) subject to that, it does not matter whether the excess or part arises for another reason as well as one or more payees being multinational companies (even if it would have arisen for that other reason regardless of whether any payees are multinational companies).
(4) A taxable period of a payee is “permitted” in relation to an amount of ordinary income that arises as a result of the payment or quasi-payment if—
(a) the period begins before the end of 12 months after the end of the payment period, or
(b) where the period begins after that—
(i) a claim has been made for the period to be a permitted period in relation to the amount of ordinary income, and
(ii) it is just and reasonable for the amount of ordinary income to arise for that taxable period rather than an earlier period.
259HC Counteraction of the multinational payee deduction/non-inclusion mismatch
For corporation tax purposes—
(a) if paragraph (b) of Condition C in subsection (5) of section 259HA is met, an amount equal to the multinational payee deduction/non-inclusion mismatch mentioned in subsection (6) of that section is to be treated as income arising to the multinational company in the United Kingdom (and nowhere else) for the payment period, and
(b) in any other case, the relevant deduction that may be deducted from the payer’s income for that period is to be reduced by that amount.
(1) This Chapter contains provision that counteracts double deduction mismatches that it is reasonable to suppose would otherwise arise by reason of a person being a hybrid entity.
(2) The Chapter counteracts mismatches where the hybrid entity, or an investor in the hybrid entity, is within the charge to corporation tax and does so by altering the corporation tax treatment of the entity or investor.
(3) Section 259IA contains the conditions that must be met for this Chapter to apply.
(4) Subsection (4) of that section defines “hybrid entity double deduction amount”.
(5) Section 259IB contains provision that counteracts the mismatch where an investor in the hybrid entity is within the charge to corporation tax.
(6) Section 259IC contains provision that, in certain circumstances, counteracts the mismatch where the hybrid entity is within the charge to corporation tax and the mismatch is not fully counteracted by provision under the law of a territory outside the United Kingdom that is equivalent to section 259IB.
(7) See also section 259BE for the meaning of “hybrid entity”, “investor” and “investor jurisdiction”.
(1) This Chapter applies if conditions A to C are met.
(2) Condition A is that there is an amount or part of an amount that, disregarding the provisions mentioned in subsection (3), it is reasonable to suppose—
(a) could be deducted from the income of a hybrid entity for the purposes of calculating the taxable profits of that entity for a taxable period (“the hybrid entity deduction period”), and
(b) could also be deducted, under the law of the investor jurisdiction, from the income of an investor in the hybrid entity for the purposes of calculating the taxable profits of that investor for a taxable period (“the investor deduction period”).
(3) The provisions are—
(a) this Chapter and Chapter 10, and
(b) any equivalent provision under the law of a territory outside the United Kingdom.
(4) In this Chapter the amount or part of an amount mentioned in subsection (2) is referred to as “the hybrid entity double deduction amount”.
(5) Condition B is that—
(a) the investor is within the charge to corporation tax for the investor deduction period, or
(b) the hybrid entity is within the charge to corporation tax for the hybrid entity deduction period.
(6) Condition C is that—
(a) the hybrid entity and any investor in it are related (see section 259NC) at any time—
(i) in the hybrid entity deduction period, or
(ii) in the investor deduction period, or
(b) an arrangement, to which the hybrid entity or any investor in it is party, is a structured arrangement.
(7) An arrangement is “structured” if it is reasonable to suppose that—
(a) the arrangement is designed to secure the hybrid entity double deduction amount, or
(b) the terms of the arrangement share the economic benefit of that amount being deductible by both the hybrid entity and the investor between the parties to the arrangement or otherwise reflect the fact that the amount is expected to arise.
(8) The arrangement may be designed to secure the hybrid entity double deduction amount despite also being designed to secure any commercial or other objective.
(9) Sections 259IB (cases where the investor is within the charge to corporation tax for the investor deduction period) and 259IC (cases where the hybrid entity is within the charge to corporation tax for the hybrid entity deduction period) contain provision for the counteraction of the hybrid entity double deduction amount.
259IB Counteraction where the investor is within the charge to corporation tax
(1) This section applies in relation to the investor in the hybrid entity where the investor is within the charge to corporation tax for the investor deduction period.
(2) For corporation tax purposes, the hybrid entity double deduction amount may not be deducted from the investor's income for the investor deduction period unless it is deducted from dual inclusion income of the investor for that period.
(3) So much of the hybrid entity double deduction amount (if any) as, by virtue of subsection (2), cannot be deducted from the investor's income for the investor deduction period—
(a) is carried forward to subsequent accounting periods of the investor, and
(b) for corporation tax purposes, may be deducted from dual inclusion income of the investor for any such period (and not from any other income), so far as it cannot be deducted under this paragraph for an earlier period.
(4) If the Commissioners are satisfied that the investor will have no dual inclusion income—
(a) for an accounting period after the investor deduction period (“the relevant period”), nor
(b) for any accounting period after the relevant period,
any of the hybrid entity double deduction amount that has not been deducted from dual inclusion income for an accounting period before the relevant period in accordance with subsection (2) or (3) (“the stranded deduction”) may be deducted at step 2 in section 4(2) of CTA 2010 in calculating the investor's taxable total profits of the relevant period.
(5) So much of the stranded deduction (if any) as cannot be deducted, in accordance with subsection (4), at step 2 in section 4(2) of CTA 2010 in calculating the investor's taxable total profits of the relevant period—
(a) is carried forward to subsequent accounting periods of the investor, and
(b) may be so deducted for any such period, so far as it cannot be deducted under this paragraph for an earlier period.
(6) Subsection (7) applies if it is reasonable to suppose that all or part of the hybrid entity double deduction amount is (in substance) deducted (“the illegitimate overseas deduction”), under the law of a territory outside the United Kingdom, from income of any person, for a taxable period, that is not dual inclusion income of the investor for an accounting period.
(7) For the purposes of determining how much of the hybrid entity double deduction amount may be deducted (if any) for the accounting period of the investor in which the taxable period mentioned in subsection (6) ends, and any subsequent accounting periods of the investor, an amount of it equal to the illegitimate overseas deduction is to be taken to have already been deducted for a previous accounting period of the investor.
(8) In this section “dual inclusion income” of the investor for an accounting period means an amount that is both—
(a) ordinary income of the investor for that period for corporation tax purposes, and
(b) ordinary income of the hybrid entity for a permitted taxable period for the purposes of any tax under the law of a territory outside the United Kingdom.
(9) A taxable period of the hybrid entity is “permitted” for the purposes of paragraph (b) of subsection (8) if—
(a) the period begins before the end of 12 months after the end of the accounting period of the investor mentioned in paragraph (a) of that subsection, or
(b) where the period begins after that—
(i) a claim has been made for the period to be a permitted period in relation to the amount of ordinary income, and
(ii) it is just and reasonable for the amount of ordinary income to arise for that taxable period rather than an earlier period.
259IC Counteraction where the hybrid entity is within the charge to corporation tax
(1) This section applies where—
(a) the hybrid entity is within the charge to corporation tax for the hybrid entity deduction period,
(b) it is reasonable to suppose that—
(i) no provision under the law of an investor jurisdiction that is equivalent to section 259IB applies, or
(ii) such a provision does apply, but the hybrid entity double deduction amount exceeds the amount that, under that provision, cannot be deducted from income, for the investor deduction period, other than dual inclusion income of the hybrid entity for the hybrid entity deduction period, and
(c) the secondary counteraction condition is met.
(2) The secondary counteraction condition is met if—
(a) the hybrid entity and any investor in it are in the same control group (see section 259NB) at any time in—
(i) the hybrid entity deduction period, or
(ii) the investor deduction period, or
(b) there is an arrangement, to which the hybrid entity or any investor in it is party, that is a structured arrangement (within the meaning given by section 259IA(7) and (8)).
(3) In this section “the restricted deduction” means—
(a) in a case where subsection (1)(b)(i) applies, the hybrid entity double deduction amount, or
(b) in a case where subsection (1)(b)(ii) applies, the hybrid entity double deduction amount so far as it exceeds the amount that it is reasonable to suppose, under a provision of the law of a territory outside the United Kingdom that is equivalent to section 259IB, cannot be deducted from income, for the investor deduction period, other than dual inclusion income of the hybrid entity for the hybrid entity deduction period.
(4) For corporation tax purposes, the restricted deduction may not be deducted from the hybrid entity's income for the hybrid entity deduction period unless it is deducted from dual inclusion income for that period.
(5) So much of the restricted deduction (if any) as, by virtue of subsection (4), cannot be deducted from the hybrid entity's income for the hybrid entity deduction period—
(a) is carried forward to subsequent accounting periods of the hybrid entity, and
(b) for corporation tax purposes, may be deducted from dual inclusion income of the hybrid entity for any such period (and not from any other income), so far as it cannot be deducted under this paragraph for an earlier period.
(6) If the Commissioners are satisfied that the hybrid entity will have no dual inclusion income—
(a) for an accounting period after the hybrid entity deduction period (“the relevant period”), nor
(b) for any accounting period after the relevant period,
any of the restricted deduction that has not been deducted from dual inclusion income for an accounting period before the relevant period in accordance with subsection (4) or (5) (“the stranded deduction”) may be deducted at step 2 in section 4(2) of CTA 2010 in calculating the hybrid entity's taxable total profits of the relevant period.
(7) So much of the stranded deduction (if any) as cannot be deducted, in accordance with subsection (6), at step 2 in section 4(2) of CTA 2010 in calculating the hybrid entity's taxable total profits of the relevant period—
(a) is carried forward to subsequent accounting periods of the hybrid entity, and
(b) may be so deducted for any such period, so far as it cannot be deducted under this paragraph for an earlier period.
(8) Subsection (9) applies if it is reasonable to suppose that all or part of the hybrid entity double deduction amount is (in substance) deducted (“the illegitimate overseas deduction”), under the law of a territory outside the United Kingdom, from income of any person other than an investor in the hybrid entity, for a taxable period, that is not dual inclusion income of the hybrid entity for an accounting period.
(9) For the purposes of determining how much of the hybrid entity double deduction amount may be deducted (if any) for the accounting period of the hybrid entity in which the taxable period mentioned in subsection (8) ends, and any subsequent accounting periods of the hybrid entity, an amount of it equal to the illegitimate overseas deduction is to be taken to have already been deducted for a previous accounting period of the hybrid entity.
(10) In this section “dual inclusion income” of the hybrid entity for an accounting period means an amount that is both—
(a) ordinary income of the hybrid entity for that period for corporation tax purposes, and
(b) ordinary income of an investor in the hybrid entity for a permitted taxable period for the purposes of any tax charged under the law of an investor jurisdiction.
(11) A taxable period of an investor is “permitted” for the purposes of paragraph (b) of subsection (10) if—
(a) the period begins before the end of 12 months after the end of the accounting period mentioned in paragraph (a) of that subsection, or
(b) where the period begins after that—
(i) a claim has been made for the period to be a permitted period in relation to the amount of ordinary income, and
(ii) it is just and reasonable for the amount of ordinary income to arise for that taxable period rather than an earlier period.
259ICA Deemed dual inclusion income for the purposes of section 259IC
(1) For the purposes of section 259IC(10)(b) the reference to ordinary income of an investor in the hybrid entity for a permitted taxable period for the purposes of any tax charged under the law of an investor jurisdiction is taken to include a reference to an amount that meets the following requirements.
(2) The requirements are that—
(a) the amount may not be deducted under the law of any territory from the income of any person for the purposes of calculating taxable profits for a relevant taxable period;
(b) in the case of a person resident for tax purposes in a zero-tax territory, the amount could not be deducted from the income of the person for the purposes of calculating taxable profits for a relevant taxable period if the person were resident in the United Kingdom for tax purposes; and
(c) under the law of the investor jurisdiction, the amount could be deducted from the income of the investor in the hybrid entity for the purposes of calculating the investor's taxable profits for a relevant taxable period if the following assumptions were made.
(3) The assumptions are that, for the purposes of identifying the recipient of the amount for tax purposes in the investor jurisdiction, it is assumed that—
(a) condition B in section 259BE(3) was not met by the hybrid entity as respects the investor jurisdiction, and
(b) as a result of that, the hybrid entity was not a hybrid entity as respects the investor jurisdiction.
(4) In subsection (2), “zero-tax territory”, in relation to a person, means a territory in which the person—
(a) is not within the charge to tax, or
(b) is within the charge to tax at a nil rate.
(5) Section 259B(5) (determination of residence where no concept of residence for tax purposes exists) applies to the reference in subsection (2)(b) to a person's residence for tax purposes in a zero-tax territory as it applies to references to a person's residence for tax purposes in Chapter 8 or 11.
(6) A taxable period of an investor or another person is “relevant” for the purposes of subsection (2) if—
(a) the period begins before the end of 12 months after the end of the accounting period mentioned in section 259IC(10)(a), or
(b) where the period begins after that, it is just and reasonable for the question of whether the amount concerned may or could be deducted in calculating taxable profits to be determined by reference to that taxable period rather than an earlier period.
(1) This Chapter contains provision that counteracts double deduction mismatches that it is reasonable to suppose would otherwise arise as a result of a company—
(a) being a dual resident company, or
(b) being a relevant multinational company.
(2) The counteraction operates by altering the corporation tax treatment of the company.
(3) Section 259JA contains the conditions that must be met for this Chapter to apply.
(4) Subsection (3) of that section defines “dual resident company”.
(5) Subsection (4) of that section defines “relevant multinational company”, “parent jurisdiction” and “PE jurisdiction”.
(6) Subsection (5) of that section defines “dual territory double deduction amount”.
(7) Section 259JB contains provision that counteracts the mismatch where the company is a dual resident company.
(8) Section 259JC contains provision that counteracts the mismatch where the company is a multinational company and the United Kingdom is the parent jurisdiction.
(9) Section 259JD contains provision that counteracts the mismatch where the company is a relevant multinational company, the United Kingdom is the PE jurisdiction and the mismatch is not counteracted under a provision of the law of a territory outside the United Kingdom that is equivalent to section 259JC.
(10) See also section 259BF for the meaning of “permanent establishment”.
(1) This Chapter applies if conditions A and B are met.
(2) Condition A is that a company is a—
(a) dual resident company, or
(b) relevant multinational company.
(3) For the purposes of this Chapter a company is a “dual resident company” if—
(a) it is UK resident, and
(b) it is also within the charge to a tax under the law of a territory outside the United Kingdom because—
(i) it derives its status as a company from that law,
(ii) its place of management is in that territory, or
(iii) it is for some other reason treated under that law as resident in that territory for the purposes of that tax.
(4) For the purposes of this Chapter a company is a “relevant multinational company” if—
(a) it is within the charge to a tax, under the law of a territory (“the PE jurisdiction”) in which it is not resident for tax purposes, because it carries on business in that territory through a permanent establishment in that territory, and
(b) either—
(i) the PE jurisdiction is the United Kingdom, or
(ii) the territory in which the company is resident for tax purposes (“the parent jurisdiction”) is the United Kingdom.
(5) Condition B is that there is an amount (“the dual territory double deduction amount”) that, disregarding this Chapter and any equivalent provision under the law of a territory outside the United Kingdom, it is reasonable to suppose could, by reason of the company being a dual resident company or a relevant multinational company—
(a) be deducted from the company's income for an accounting period (“the deduction period”) for corporation tax purposes, and
(b) also be deducted from the company's income for a taxable period (“the foreign deduction period”) for the purposes of a tax charged under the law of a territory outside the United Kingdom.
(6) The following provisions provide for the counteraction of the dual territory double deduction amount—
(a) section 259JB (cases where a company is dual resident),
(b) section 259JC (cases where a company is a relevant multinational and the United Kingdom is the parent jurisdiction), and
(c) section 259JD (cases where a company is a relevant multinational, the United Kingdom is the PE jurisdiction and the amount is not counteracted in the parent jurisdiction).
259JB Counteraction where mismatch arises because of a dual resident company
(1) This section applies where the dual territory double deduction amount arises by reason of the company being a dual resident company.
(2) For corporation tax purposes, the dual territory double deduction amount may not be deducted from the company's income for the deduction period unless it is deducted from dual inclusion income of the company for that period.
(3) So much of the dual territory double deduction amount (if any) as, by virtue of subsection (2), cannot be deducted from the company's income for the deduction period—
(a) is carried forward to subsequent accounting periods of the company, and
(b) for corporation tax purposes, may be deducted from dual inclusion income of the company for any such period (and not from any other income), so far as it cannot be deducted under this paragraph for an earlier period.
(4) If the Commissioners are satisfied that the company has ceased to be a dual resident company, any of the dual territory double deduction amount that has not been deducted from dual inclusion income in accordance with subsection (2) or (3) (“the stranded deduction”) may be deducted at step 2 in section 4(2) of CTA 2010 in calculating the company's taxable total profits of the accounting period in which it ceased to be a dual resident company.
(5) So much of the stranded deduction (if any) as cannot be deducted, in accordance with subsection (4), at step 2 in section 4(2) of CTA 2010 in calculating the company's taxable total profits of the accounting period in which the company ceased to be a dual resident company—
(a) is carried forward to subsequent accounting periods of the company, and
(b) may be so deducted for any such period, so far as it cannot be deducted under this paragraph for an earlier period.
(6) Subsection (7) applies if it is reasonable to suppose that all or part of the dual territory double deduction amount is (in substance) deducted (“the illegitimate overseas deduction”), under the law of a territory outside the United Kingdom, from income of any person other than the company, for a taxable period, that is not dual inclusion income of the company for an accounting period.
(7) For the purposes of determining how much of the dual territory double deduction amount may be deducted (if any) for the accounting period of the company in which the taxable period mentioned in subsection (6) ends, and any subsequent accounting periods of the company, an amount of it equal to the illegitimate overseas deduction is to be taken to have already been deducted for a previous accounting period of the company.
(8) In this section “dual inclusion income” of the company for an accounting period means an amount that is both—
(a) ordinary income of the company for that period for corporation tax purposes, and
(b) ordinary income of the company for a permitted taxable period for the purposes of a tax charged under the law of a territory outside the United Kingdom.
(9) A taxable period of the company is “permitted” for the purposes of paragraph (b) of subsection (8) if—
(a) the period begins before the end of 12 months after the end of the accounting period mentioned in paragraph (a) of that subsection, or
(b) where the period begins after that—
(i) a claim has been made for the period to be a permitted period in relation to the amount of ordinary income, and
(ii) it is just and reasonable for the amount of ordinary income to arise for that taxable period rather than an earlier period.