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The Apprenticeships, Skills, Children and Learning Act 2009 (Consequential Amendments to Subordinate Legislation) (England and Wales) Order 2012
The Secretary of State for Business, Innovation and Skills makes the following Order in exercise of the powers conferred by section 265(1) and (2) of the Apprenticeships, Skills, Children and Learning Act 2009 .
Citation and commencement
1
This Order may be cited as the Apprenticeships, Skills, Children and Learning Act 2009 (Consequential Amendments to Subordinate Legislation) (England and Wales) Order 2012 and comes into force on 9th January 2013.
Amendment of the National Minimum Wage Regulations 1999
2
After regulation 13 of the National Minimum Wage Regulations 1999 , insert: —
Workers working under an apprenticeship agreement
13A
For the purposes of these Regulations, the expression “a worker who is employed under a contract of apprenticeship” includes a worker who is working under an apprenticeship agreement (within the meaning of section 32 of the Apprenticeships, Skills, Children and Learning Act 2009).
.
Amendment of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
3
1
The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 are amended as follows.
2
In regulation 20, after “apprenticeship” insert “or an apprenticeship agreement (within the meaning of section 32 of the Apprenticeships, Skills, Children and Learning Act 2009)”.
Matthew Hancock
Minister for Skills
Department for Business, Innovation and Skills
12th December 2012 |
The Specified Products from China (Restriction on First Placing on the Market) (England) (Amendment) Regulations 2012
The Secretary of State has been designated for the purposes of that section in relation to measures relating to food (including drink) including the primary production of food and measures relating to feed produced for or fed to food-producing animals .
Title and commencement
1
These Regulations may be cited as the Specified Products from China (Restriction on First Placing on the Market) (England) (Amendment) Regulations 2012 and come into force on 12th January 2012.
Amendment of the Specified Products from China (Restriction on First Placing on the Market) (England) Regulations 2008
2
1
The Specified Products from China (Restriction on First Placing on the Market) (England) Regulations 2008 are amended in accordance with paragraphs (2) to (7).
2
In regulation 2 (interpretation) —
a
in paragraph (1) —
i
for the definition of “the Commission Decision” substitute the following definition —
“the Commission Decision” means Commission Implementing Decision 2011/884/ EU on emergency measures regarding unauthorised genetically modified rice in rice products originating from China and repealing Decision 2008/289/ EC ;
,
ii
omit the definition of “first placing on the market”,
iii
after the definition of “operator” insert the following definition —
“placing on the market” has the meaning given to it in Article 3.8 of Regulation 178/2002;
, and
iv
in the definition of “specified product”, for “the Annex” substitute “Annex I”; and
b
insert the following paragraph immediately after paragraph (2) —
3
Any expression used in the Commission Decision and in these Regulations has the same meaning in these Regulations as it bears in the Commission Decision.
.
3
For the heading to and paragraph (1) of regulation 3 (restriction on first placing on the market of specified products), substitute the following —
Restriction on placing on the market of specified products
3
1
The placing on the market of any specified product is prohibited unless —
a
the conditions specified in Article 4 of the Commission Decision have been complied with in relation to the product; and
b
where the consignment of the specified product has been split following official control, an authenticated copy of the health certificate and the analytical report accompanies each part of the split consignment.
.
4
Regulation 4 (notification of positive results) is omitted.
5
For paragraph (4) of regulation 5 (enforcement) substitute the following —
4
The requirements are those specified in —
a
Article 5 of the Commission Decision (which is concerned with the conditions under which specified products may be placed on the market, the official controls to be carried out and the measures to be taken with regard to non-compliant consignments); and
b
the first sentence of Article 7 of that Decision (which is concerned with the control of splitting of consignments).
.
6
In paragraph (b) of regulation 6 (application of various provisions of the Food Safety Act 1990), for “first placing on the market” substitute “placing on the market”.
7
Insert the following regulations immediately after regulation 6 —
Expenses arising from official controls
7
Expenses charged by a feed authority or a food authority to an operator pursuant to Article 8 of the Commission Decision shall be payable by the operator on the written demand of the authority.
Transitional provision
8
The prohibition in regulation 3(1) does not apply in relation to any specified product which left China prior to 1st February 2012 provided that —
a
the sampling and analysis have been conducted in accordance with Article 4(3) of the Commission Decision; and
b
the placing on the market of the product would not have constituted an offence under these Regulations as they stood immediately before the coming into force of the Specified Products from China (Restriction on First Placing on the Market) (England) (Amendment) Regulations 2012.
.
Statutory review
3
1
The Food Standards Agency must from time to time —
a
carry out a review of regulation 2;
b
set out the conclusions of the review in a report; and
c
publish the report.
2
In carrying out the review the Agency must, so far as is reasonable, have regard to how the Commission Decision is implemented in other Member States.
3
The report must in particular —
a
set out the objectives intended to be achieved by the regulatory system established by the Specified Products from China (Restriction on First Placing on the Market) (England) Regulations 2008 as they have been amended by these Regulations;
b
assess the extent to which those objectives are achieved; and
c
assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
4
The first report under this regulation must be published before the end of the period of five years beginning with the day on which these Regulations come into force.
5
Reports under this regulation are afterwards to be published at intervals not exceeding five years.
Signed by authority of the Secretary of State for Health.
Simon Burns
Minister of State,
Department of Health
9th January 2012 |
The National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) (Amendment) Regulations 2012
The Secretary of State for Health makes the following Regulations in exercise of the powers conferred by sections 7(1), 8, 272(7) and 273(1) and (4) of the National Health Service Act 2006 .
Citation, commencement and interpretation
1
1
These Regulations may be cited as the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) (Amendment) Regulations 2012 and shall come into force on 1st April 2012.
2
In these Regulations, “the principal Regulations ” means the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002 .
Substitution of Schedule 5 to the principal Regulations
2
For Schedule 5 to the principal Regulations (Secretary of State’s functions under section 3(1) of the National Health Service Act 2006 exercisable by Strategic Health Authorities for the purpose of securing the provision of services: specified services) substitute the following Schedule —
SCHEDULE 5
SECRETARY OF STATE’S FUNCTIONS UNDER SECTION 3(1) OF THE NATIONAL HEALTH SERVICE ACT 2006 EXERCISABLE BY STRATEGIC HEALTH AUTHORITIES FOR THE PURPOSE OF SECURING THE PROVISION OF SERVICES: SPECIFIED SERVICES
Regulation 3(2A)
1 Adult ataxia telangiectasia service 2 Alkaptonuria service 3 Alström syndrome service 4 Ataxia telangiectasia service for children 5 Autoimmune paediatric gut syndromes service 6 Autologous intestinal reconstruction in adults service 7 Bardet-Biedl syndrome service 8 Barth syndrome service 9 Beckwith-Wiedemann syndrome with macroglossia service 10 Behçet’s syndrome service 11 Breast radiotherapy injury rehabilitation service 12 Bladder exstrophy service 13 Choriocarcinoma service 14 Chronic pulmonary aspergillosis service 15 Complex childhood osteogenesis imperfecta service 16 Complex Ehlers Danlos syndrome service 17 Complex neurofibromatosis type 1 service 18 Complex tracheal disease service 19 Congenital hyperinsulinism service 20 Craniofacial service 21 Cryopyrin associated periodic syndrome service 22 Diagnostic service for amyloidosis 23 Diagnostic service for primary ciliary dyskinesia 24 Diagnostic service for rare neuromuscular disorders service 25 Encapsulating sclerosing peritonitis surgical service 26 Epidermolysis bullosa service 27 Extra corporeal membrane oxygenation service for adults 28 Extra corporeal membrane oxygenation service for neonates, infants and children with respiratory failure 29 Ex-vivo partial nephrectomy service 30 Gender identity development service for children and adolescents 31 Heart and lung transplantation service (including bridge to transplant using mechanical circulatory support) 32 Insulin-resistant diabetes service 33 Islet transplantation service 34 Liver transplantation service 35 Lymphangioleiomyomatosis service 36 Lysosomal storage disorder service 37 McArdle’s disease service 38 Mental health service for deaf children and adolescents 39 Neurofibromatosis type 2 service 40 Neuromyelitis optica service 41 Ocular oncology service 42 Ophthalmic pathology service 43 Osteo-odonto-keratoprosthesis service for corneal blindness 44 Pancreas transplantation service 45 Paroxysmal nocturnal haemoglobinuria service 46 Paediatric intestinal pseudo-obstructive disorders service 47 Primary ciliary dyskinesia-management service 48 Primary malignant bone tumours service 49 Proton beam therapy service 50 Pseudomyxoma peritonei service 51 Pulmonary hypertension service for children 52 Pulmonary thromboendarterectomy service 53 Rare mitochondrial disorders service 54 Reconstructive surgery service for adolescents for congenital malformation of the female genital tract 55 Retinoblastoma service 56 Secure forensic mental health service for young people 57 Severe acute porphyria service 58 Severe combined immunodeficiency and related disorders service 59 Severe intestinal failure service 60 Severe obsessive compulsive disorder and body dysmorphic disorder service 61 Small bowel transplantation service 62 Specialist paediatric liver disease service 63 Stem cell transplantation service for juvenile idiopathic arthritis and related connective tissue disorders 64 Stickler syndrome diagnostic service 65 Vein of Galen malformation service 66 Veterans’ post-traumatic stress disorder programme 67 Wolfram syndrome service 68 Xeroderma pigmentosum service.
.
Signed by authority of the Secretary of State for Health.
Earl Howe
Parliamentary Under-Secretary of State,
Department of Health
16th February 2012 |
The Social Security (Benefit) (Members of the Forces) (Amendment) Regulations 2012
In accordance with section 173(1)(b) of the Social Security Administration Act 1992 , the Secretary of State has obtained the agreement of the Social Security Advisory Committee that proposals in respect of these Regulations should not be referred to it.
Citation, commencement and extent
1
1
These Regulations may be cited as the Social Security (Benefit) (Members of the Forces) (Amendment) Regulations 2012.
2
They come into force on 30th July 2012.
3
Regulation 2(3)(a) does not extend to Northern Ireland.
Amendment of the Social Security (Benefit) (Members of the Forces) Regulations 1975
2
1
The Social Security (Benefit) (Members of the Forces) Regulations 1975 are amended as follows.
2
In regulation 1(2) (interpretation), in the definition of “serving member of the forces” for “regulation 1(2) of the Social Security (Contributions) Regulations 1975” substitute “regulation 1(2) of the Social Security (Contributions) Regulations 2001 ”.
3
In regulation 2 (unemployment, sickness and invalidity benefit and severe disablement allowance) —
a
omit “a jobseeker’s allowance,”;
b
omit “either — ”;
c
in paragraph (a), for “Part 1 of Schedule 5 to the Social Security (Contributions) Regulations 1975” substitute “Part 1 of Schedule 6 to the Social Security (Contributions) Regulations 2001”; and
d
omit both “; or” at the end of paragraph (a) and paragraph (b).
James Duddridge
Brooks Newmark
Two of the Lord Commissioners of Her Majesty’s Treasury
21st June 2012
Chris Grayling
Signed by the authority of the Secretary of State
Department for Work and Pensions
25th June 2012 |
The Public Bodies (Abolition of Courts Boards) Order 2012
A draft of this Order, and an explanatory document containing the information required by section 11(2) of that Act, have been laid before Parliament in accordance with section 11(1) after the end of the period of twelve weeks mentioned in section 11(3). In accordance with section 11(4) of that Act, the draft of this Order has been approved by a resolution of each House of Parliament after the expiry of the 40-day period referred to in that provision.
Citation, commencement and extent
1
1
This Order may be cited as the Public Bodies (Abolition of Courts Boards) Order 2012.
2
Subject to paragraph (3) , this Order comes into force on the later of 1st April 2012 or the day after the day on which it is made.
3
Article 3 comes into force on the day after that on which the other provisions of this Order come into force.
4
This Order extends to England and Wales.
Abolition of courts boards
2
1
Courts boards, established under section 4 of the Courts Act 2003 , are abolished.
2
The Schedule (which makes consequential provision) has effect.
Repeal of entry in the Public Bodies Act 2011
3
In Schedule 1 to the Public Bodies Act 2011 (power to abolish: bodies and offices), the entry “Courts boards.” is repealed.
Signed by authority of the Lord Chancellor
J Djanogly
Parliamentary Under Secretary of State
Ministry of Justice
1st May 2012
SCHEDULE
Amendments consequential on the abolition of courts boards
Article 2 (2)
Freedom of Information Act 2000
1
The Freedom of Information Act 2000 is amended as follows.
2
In Part 6 of Schedule 1 (other public bodies and offices – general), the entry “A courts board established under section 4 of the Courts Act 2003.” is repealed.
Courts Act 2003
3
The Courts Act 2003 is amended as follows.
4
Section 4 (establishment of courts boards) is repealed.
5
Section 5 (functions of courts boards) is repealed.
6
In section 8 (local justice areas), subsection (6)(b) is repealed.
7
Schedule 1 (constitution and procedure of courts boards) is repealed.
Constitutional Reform Act 2005
8
The Constitutional Reform Act 2005 is amended as follows.
9
In Part 1 of Schedule 4 (other functions of the Lord Chancellor and organisation of the courts), paragraphs 310, 311 and 350 are repealed.
Courts Boards Areas Order 2004
10
The Courts Boards Areas Order 2004 is revoked.
Courts Boards (Appointments and Procedure) Regulations 2004
11
The Courts Boards (Appointments and Procedure) Regulations 2004 are revoked.
Freedom of Information (Additional Public Authorities) Order 2005
12
The Freedom of Information (Additional Public Authorities) Order 2005 is amended as follows.
13
In Schedule 1 (entries inserted in Part 6 of Schedule 1 to the Act with effect from 7 February 2006), the entry “A courts board established under section 4 of the Courts Act 2003.” is revoked.
Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No.2) Order 2006
14
The Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No.2) Order 2006 is amended as follows.
15
In Schedule 2 (transfer and modification of functions of the Lord Chancellor – secondary legislation), paragraphs 4 to 7 are revoked.
Courts Boards Areas (Amendment) Order 2007
16
The Courts Boards Areas (Amendment) Order 2007 is revoked.
Justices of the Peace (Training and Development Committee) Rules 2007
17
The Justices of the Peace (Training and Development Committee) Rules 2007 are amended as follows.
18
In rule 2 (interpretation) omit the entry for “courts board area”.
19
In rule 42(1) (formation of a Magistrates’ Area Training Committee), for “courts board area in existence on 1st January 2006” substitute “area listed in Schedule 3 to these Rules”
20
After Schedule 2, insert —
SCHEDULE 3
MAGISTRATES’ AREA TRAINING COMMITTEES
Rule 42
MATC Area Geographical coverage
Avon and Somerset The county of Somerset and the non-metropolitan districts of Bath and North East Somerset, Bristol, North Somerset and South Gloucestershire Bedfordshire The county of Bedfordshire and the non-metropolitan district of Luton Cambridgeshire The county of Cambridgeshire and the non-metropolitan district of Peterborough Cheshire The county of Cheshire and the non-metropolitan districts of Halton and Warrington Cleveland The non-metropolitan districts of Hartlepool, Middlesbrough, Redcar and Cleveland and Stockton-on-Tees Cumbria The county of Cumbria Derbyshire The county of Derbyshire and the non-metropolitan district of Derby Devon and Cornwall The counties of Devon and Cornwall, the non-metropolitan districts of Plymouth and Torbay and the Isles of Scilly Dorset The county of Dorset and the non-metropolitan districts of Bournemouth and Poole Durham The county of Durham and the non-metropolitan district of Darlington Dyfed Powys The counties of Ceredigion, Carmarthenshire, Pembrokeshire and Powys Essex The county of Essex and the non-metropolitan districts of Southend-on-Sea and Thurrock Gloucestershire The county of Gloucestershire Greater Manchester The metropolitan districts of Bolton, Bury, Manchester, Oldham, Rochdale, Salford, Stockport, Tameside, Trafford and Wigan Hampshire and Isle of Wight The counties of Hampshire and Isle of Wight and the non-metropolitan districts of Portsmouth and Southampton Hertfordshire The county of Hertfordshire Humberside The non-metropolitan districts of the East Riding of Yorkshire, Kingston upon Hull, North East Lincolnshire and North Lincolnshire Kent The county of Kent and the non-metropolitan district of Medway Lancashire The county of Lancashire and the non-metropolitan districts of Blackburn with Darwen and Blackpool Leicestershire and Rutland The county of Leicestershire and the non-metropolitan districts of Leicester and Rutland Lincolnshire The county of Lincolnshire London Greater London Merseyside The metropolitan districts of Knowsley, Liverpool, St. Helens, Sefton and Wirral Norfolk The county of Norfolk Northamptonshire The county of Northamptonshire Northumbria The county of Northumberland and the metropolitan districts of Gateshead, Newcastle upon Tyne, North Tyneside, South Tyneside and Sunderland North Wales The counties of the Isle of Anglesey, Gwynedd, Denbighshire and Flintshire and the county boroughs of Conwy and Wrexham North Yorkshire The county of North Yorkshire and the non-metropolitan district of York Nottinghamshire The county of Nottinghamshire and the non-metropolitan district of Nottingham South East Wales The counties of Cardiff, Monmouthshire and Swansea, the county boroughs of Blaenau Gwent, Bridgend, Caerphilly, Merthyr Tydfil, Neath Port Talbot, Newport, Rhondda Cynon Taff, Torfaen and the Vale of Glamorgan South Yorkshire The metropolitan districts of Barnsley, Doncaster, Rotherham and Sheffield Staffordshire The county of Staffordshire and the non-metropolitan district of Stoke-on-Trent Suffolk The county of Suffolk Surrey The county of Surrey Sussex The counties of East Sussex and West Sussex and the non-metropolitan district of Brighton and Hove Thames Valley The counties of Buckinghamshire and Oxfordshire and the non-metropolitan districts of Bracknell Forest, Milton Keynes, Reading, Slough, West Berkshire, Windsor and Maidenhead and Wokingham Warwickshire The county of Warwickshire West Mercia The counties of Shropshire and Worcestershire and the non-metropolitan districts of Herefordshire and Telford and The Wrekin West Midlands The metropolitan districts of Birmingham, Coventry, Dudley, Sandwell, Solihull, Walsall and Wolverhampton West Yorkshire The metropolitan districts of Bradford, Calderdale, Kirklees, Leeds and Wakefield Wiltshire The county of Wiltshire and the non-metropolitan district of Swindon
Courts Boards Areas (Amendment) Order 2009
21
The Courts Boards Areas (Amendment) Order 2009 is revoked. |
The National Police Records (Recordable Offences) (Amendment) Regulations 2012
The Secretary of State, in exercise of the powers conferred by section 27(4) of the Police and Criminal Evidence Act 1984 , makes the following Regulations.
Citation and commencement
1
These Regulations may be cited as the National Police Records (Recordable Offences) (Amendment) Regulations 2012 and shall come into force on 30th July 2012.
Amendment of the National Police Records (Recordable Offences) Regulations 2000
2
1
The Schedule to the National Police Records (Recordable Offences) Regulations 2000 is amended as follows.
2
After paragraph 41 insert —
41A
section 51A of the Sexual Offences Act 2003 (offence of soliciting);
41B
section 53A of the Sexual Offences Act 2003 (offence of paying for sexual services of a prostitute subjected to force etc ).
Lynne Featherstone
Parliamentary Under-Secretary of State
Home Office
2nd July 2012 |
European Union (Approval of Treaty Amendment Decision) Act 2012
Approval of EU decision relating to stability mechanism
1
1
The following provisions have effect for the purposes of section 3 of the European Union Act 2011 (which sets out requirements to be met before a Minister of the Crown may confirm the approval by the United Kingdom of a decision adopted under Article 48(6) of the Treaty on European Union).
2
The European Council decision of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro (2011/199/EU) is approved.
3
That decision does not fall within section 4 of the European Union Act 2011 (cases where treaty or Article 48(6) decision attracts a referendum).
Extent, commencement and short title
2
1
This Act extends to the whole of the United Kingdom.
2
This Act comes into force on the day on which it is passed.
3
This Act may be cited as the European Union (Approval of Treaty Amendment Decision) Act 2012. |
The Criminal Defence Service (Funding) (Amendment No. 2) Order 2012
The Lord Chancellor has consulted the General Council of the Bar and the Law Society in accordance with section 25(2) of that Act and has had regard to the matters specified in section 25(3) of that Act.
Citation, commencement and interpretation
1
1
This Order may be cited as the Criminal Defence Service (Funding) (Amendment No. 2) Order 2012 and comes into force on 18th June 2012.
2
This Order applies to proceedings in which a representation order is granted on or after 18 th June 2012.
Amendments to the Criminal Defence Service (Funding) Order 2007
2
The Criminal Defence Service (Funding) Order 2007 is amended as follows.
3
In article 6(2), after “committed” insert “or sent for trial”.
4
In article 12 —
a
for the heading, substitute “Cases sent for trial to the Crown Court”;
b
in paragraph (1), omit “under section 51 of the Crime and Disorder Act 1998 (no committal proceedings for indictable-only offences)”.
5
In article 14(1), after “committed” insert “or sent for trial”.
6
In paragraph 2 of Schedule 1 —
a
in sub-paragraph (4A)(a), after “committed” insert “or sent for trial”;
b
in sub-paragraph (5A)(a), after “committed” insert “or sent for trial”;
c
in sub-paragraph (7)(a), omit “under section 51 of the Crime and Disorder Act 1998 (no committal proceedings for indictable-only offences)”;
d
in sub-paragraph (8), for “under the provisions” substitute “as”.
7
In paragraph 5A of Schedule 1 —
a
For “This Part” substitute “Subject to paragraph 18, this Part”;
b
after “committed” insert “or sent for trial”.
8
In paragraph 7A of Schedule 1, after “committed” insert “or sent for trial”.
9
In paragraph 18 of Schedule 1 —
a
in sub-paragraph (1)(a), omit “under section 51 of the Crime and Disorder Act 1998 (no committal proceedings for indictable-only offences)”;
b
for sub-paragraph (4A)(b) substitute —
b
the case is remitted to the magistrates’ court in accordance with paragraph 10(3)(a), 13(2) or 15(3)(a) of Schedule 3 to the Crime and Disorder Act 1998,
;
c
in sub-paragraph (6)(b) —
i
omit “the charge, or charges, of an offence triable only on indictment are dismissed and”;
ii
after “paragraph 10(3)(a)” insert “, 13(2) or 15(3)(a)”.
10
In paragraph 2 of Schedule 2 —
a
in sub-paragraph (2)(a), omit “under section 51 of the Crime and Disorder Act 1998 (no committal proceedings for indictable-only offences)”;
b
in sub-paragraph (3), for “under the provisions” substitute “as”.
11
In paragraph 3A of Schedule 2 —
a
For “This Part” substitute “Subject to paragraph 16, this Part”;
b
after “committed” insert “or sent for trial”.
12
In paragraph 8A of Schedule 2, after “committed” insert “or sent for trial”.
13
In paragraph 15(1)(a) of Schedule 2, for “a documentary or pictorial exhibit is served by the prosecution in electronic form where” substitute “where a documentary or pictorial exhibit is served by the prosecution in electronic form and”.
14
In paragraph 16 of Schedule 2 —
a
in sub-paragraph (1)(a), omit “under section 51 of the Crime and Disorder Act 1998 (no committal proceedings for indictable-only offences)”;
b
for sub-paragraph (4)(b) substitute —
b
the case is remitted to the magistrates’ court in accordance with paragraph 10(3)(a), 13(2) or 15(3)(a) of Schedule 3 to the Crime and Disorder Act 1998,
;
c
in sub-paragraph (6)(b) —
i
omit “the assisted person is charged on an indictment which includes no offence that is triable only on indictment, and”;
ii
after “paragraph 10(3)(a)” insert “, 13(2) or 15(3)(a)”.
Signed by authority of the Lord Chancellor
J Djanogly
Parliamentary Under Secretary of State
Ministry of Justice
17th May 2012 |
The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012
Before deciding to make regulations under section 3B of the National Health Service Act 2006, the Secretary of State obtained appropriate advice and consulted the NHS Commissioning Board Authority in accordance with subsection (4) of that section .
PART 1 General
Citation and commencement
1
1
These Regulations may be cited as National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 and, subject to paragraphs (2) to (4) , come into force on 1st April 2013.
2
The following provisions of the Regulations come into force on 1st February 2013 —
a
this Part;
b
Part 2 (persons for whom a CCG has responsibility);
c
Part 5 (standing rules: commissioning contract terms); and
d
insofar as they relate to the functions of a relevant body in arranging for the provision of services as part of the health service on and after the relevant date —
i
Part 3 (services to be commissioned by the Board),
ii
Part 4 (mental health after-care services),
iii
in Part 6 (standing rules: NHS Continuing Healthcare and NHS funded nursing care), regulations 21 , 22 and 28 , and regulation 20 insofar as it defines terms that appear in those regulations,
iv
in Part 7 (standing rules: decisions about drugs and other treatment), regulations 33 to 35 ,
v
in Part 8 (standing rules: choice of health service provider), regulations 38 to 41 ,
vi
in Part 9 (standing rules: waiting times), regulations 44 to 50 and 52 to 54 , and
vii
Part 10 (standing rules: funding of therapies for Multiple Sclerosis).
3
Part 8 of these Regulations, insofar as the provisions of that Part are made under section 75 of the 2012 Act, comes into force immediately after that section comes fully into force .
4
Part 11 of these Regulations (financial duties of a relevant body in relation to administration) comes into force immediately after sections 24 and 27 of the 2012 Act come fully into force .
Interpretation
2
1
In these Regulations —
“1983 Act” means the Mental Health Act 1983;
“the 2006 Act” means the National Health Service Act 2006;
“the 2012 Act” means the Health and Social Care Act 2012;
“armed forces” means the regular forces and the reserved forces within the meaning of the Armed Forces Act 2006 ;
“the Board” means the National Health Service Commissioning Board ;
“CCG” means clinical commissioning group ;
“commissioning contract” means a contract, other than a primary care contract, entered into by a relevant body in the exercise of its commissioning functions;
“commissioning functions” means the functions of a relevant body in arranging for the provision of services as part of the health service, but it does not include, in relation to the Board, its functions in relation to services provided under a primary care contract;
“consultant” means a person who has been appointed to a medical consultant post with a health service provider;
“general dental practitioner” means a person whose name is included in the register maintained by the General Dental Council under section 14 of the Dentists Act 1984 ;
“general medical practitioner” means a person registered in the General Practitioner Register held by the General Medical Council under section 34C of the Medical Act 1983 ;
“health care professional” means a member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 ;
“health care services” means one or more services consisting of the provision of treatment for the purposes of the health service;
“health service provider” means a person, other than a relevant body, who has entered into a commissioning contract;
“immigration removal centre” means a removal centre within the meaning of section 147 of the Immigration and Asylum Act 1999 ;
“maternity services” includes all services relating to female patients from the start of the pregnancy to 6 weeks after the birth other than —
the treatment of any medical condition unrelated to pregnancy,
the treatment of any medical condition which does not usually occur in the ordinary course of pregnancy, or
services relating to the termination of pregnancy in accordance with the Abortion Act 1967 ;
“mental health services” means services provided to patients in relation to a disorder or disability of the mind;
“optometrist” means a registered dispensing optician or a registered optometrist within the meaning of the Opticians Act 1989 ;
“patient” means any person who is receiving treatment provided as part of the health service;
“primary care contract” means a contract or other arrangement between the Board and a provider of primary care services to provide one or more primary care services;
“primary care services” means services provided as part of the health service pursuant to arrangements made by the Board under Parts 4 to 7 of the 2006 Act;
“relevant body” means a CCG or the Board;
“relevant date” means 1st April 2013;
“secure children’s home” means a children’s home used for the purpose of restricting liberty and approved for that purpose in respect of which a person is registered under Part 2 of the Care Standards Act 2000 ;
“secure training centre” means a place in which offenders subject to detention and training orders under section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 (offenders under 18: detention and training orders) may be detained and given training and education and prepared for their release;
“treatment”, except in Part 9 (waiting times), means an intervention that is intended to manage a person’s disease, condition or injury and includes prevention, examination and diagnosis;
“young offender institution” means a place for the detention of offenders sentenced to detention in a young offender institution or to custody for life.
2
Except in Parts 2, 4 and 6, where reference is made in these Regulations to a person or persons for whom the relevant body has responsibility, or to a person whom the relevant body is responsible for, it means —
a
in respect of a CCG, a person for whom it is responsible under or by virtue of section 3 of the 2006 Act (duties of clinical commissioning groups as to commissioning certain health services) , in relation only to the provision of services which it has a duty to arrange for, or in respect of, that person; and
b
in respect of the Board, a person for or in respect of whom it is required to arrange the provision of services for under or by virtue of regulations under section 3B of the 2006 Act (Secretary of State’s power to require Board to commission services), in respect only of services which the Board is required to arrange for, or in respect of, that person.
PART 2 Persons for whom a CCG has responsibility
Interpretation of Part 2
3
In this Part, “walk-in centre” means a centre at which information and treatment for minor conditions is provided to the public under arrangements made by a relevant body.
Additional persons for whom a CCG has responsibility
4
1
Subject to paragraphs (2) to (4), for the purposes of sections 3 and 3A of the 2006 Act (which relate respectively to a CCG’s duty to commission services and its power to do so), a CCG has responsibility for the persons listed in paragraph 2 of Schedule 1 (in addition to those mentioned in section 3(1A) of that Act).
2
In the case of a person listed in paragraph 2 (a), (b), (d), (e) or (f) of Schedule 1, a CCG has responsibility only in relation to the provision of accommodation or services specified in the sub-paragraph of paragraph 2 which relates to that person.
3
The responsibility for a person listed in paragraph 2 (c), (g), (h), (i) or (j) of Schedule 1, does not apply in relation to the provision of ambulance services or accident and emergency services, whether provided at a hospital accident and emergency department, a minor injuries unit, a walk-in centre or elsewhere (but excluding any services provided after the person has been accepted as an in-patient, or at an out-patient appointment).
4
The responsibility for persons listed in paragraph 2 (b) to (j) of Schedule 1 does not apply where the person is detained in —
a
an immigration removal centre;
b
a secure training centre; or
c
a young offender institution.
PART 3 Services to be commissioned by the Board
Interpretation of Part 3
5
In this Part —
“Armed Forces Compensation Scheme” means the Armed Forces and Reserve Forces Compensation Scheme 2011 set out in the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 ;
“community dental services” means dental services provided as part of the health service other than —
emergency services,
dental services provided pursuant to arrangements made by the Board under Part 5 of the 2006 Act, or
the dental services specified in Schedule 2;
“community services” means services provided as part of the health service other than —
emergency services,
primary care services,
secondary care services, or
the services specified in Schedule 4;
“Defence Medical Services” means medical services provided by —
the Ministry of Defence including the Surgeon General’s organisation,
other elements of the Joint Forces Command, and
the three single Service medical organisations ;
“emergency services” means ambulance services and accident and emergency services provided as part of the health service, whether provided at a hospital accident or emergency department, a minor injuries unit, a walk-in centre or elsewhere;
“secondary care services” means services provided as part of the health service in a hospital setting, or by those working in or based in a hospital setting, other than emergency services, primary care services or the services specified in Schedule 4;
“veteran” means any person who has served for at least one day in one of the armed forces or Merchant Navy seafarers and fishermen who have served in a vessel at a time when it was operated to facilitate military operations by the armed forces.
Dental services
6
The Board must arrange, to such extent as it considers necessary to meet all reasonable requirements, for the provision as part of the health service of —
a
community dental services; and
b
the dental services specified in Schedule 2.
Services for serving members of the armed forces and their families
7
1
This regulation applies to —
a
a person who is a serving member of the armed forces; and
b
that person’s family.
2
The Board must arrange, to such extent as it considers necessary to meet all reasonable requirements, for the provision as part of the health service to persons to whom this regulation applies of —
a
community services;
b
secondary care services; and
c
the services specified in Schedule 4.
3
The arrangements to be made by the Board under paragraph (2)(b) in respect of a person referred to in paragraph (1)(a) must include the provision of any infertility treatment to that person and to that person’s partner.
4
The infertility treatment referred to in paragraph (3) must —
a
where a person referred to in paragraph (1)(a) has been injured in service and is in receipt of compensation for infertility under the Armed Forces Compensation Scheme, include funding the cost of sperm storage facilities from the date on which the injury was sustained (where clinically necessary and where provision for such storage has previously been made); and
b
where, and to the extent that, the Board is satisfied that this is clinically appropriate in the circumstances of any case, include the provision of up to three cycles of in vitro fertilisation treatments or other means of assisted conception.
5
In paragraph (1)(b) , “family”, in relation to a person to whom this regulation applies, means that person’s immediate family registered for primary care services with Defence Medical Services.
6
The Board must regard a person (“A”) as the partner of a person referred to in paragraph (1)(a) (“B”) if —
a
A is the spouse or civil partner of B; or
b
A and B are cohabiting as partners in a substantial and exclusive relationship in circumstances where either —
i
A is financially dependent on B, or
ii
A and B are financially interdependent.
7
In deciding whether A is in a substantial relationship with B, the Board must —
a
have regard to any evidence which A considers demonstrates that the relationship is substantial; and
b
in particular, have regard to the examples of evidence specified in paragraph (8) which could, either alone or together, indicate that the relationship is substantial.
8
The evidence referred to in paragraph (7)(b) is —
a
evidence of regular financial support of A by B;
b
evidence of a will or life insurance policy, valid at the time at which the infertility treatment is sought in which —
i
B nominates A as principal beneficiary or co-beneficiary, or
ii
A nominates B as the principal beneficiary;
c
evidence indicating that A and B have purchased or are purchasing accommodation together as joint owners or evidence of joint ownership of other valuable property, such as a car or land;
d
evidence of a joint savings plan or joint investments of a substantial nature;
e
evidence that A and B operate a joint account for which they are co-signatories;
f
evidence of joint financial arrangements such as joint repayment of a loan or payment of each other’s debts;
g
evidence that either A or B has given the other the power of attorney;
h
evidence that the names of both A and B appear on a lease or, if they live in rental accommodation, rental agreement; and
i
evidence of the length of the relationship.
9
For the purposes of paragraph (6)(b) , a relationship is not an exclusive relationship if one or both of the parties is a party to another relationship which is, or could be considered to be, a substantial and exclusive relationship having regard to the provisions of this regulation.
Infertility treatment: seriously injured serving members and veterans
8
1
This regulation applies to a person who is a serving member of the armed forces or a veteran of the armed forces where that person —
a
has been severely injured in service; and
b
as a result of the injury sustained —
i
suffers from infertility, and
ii
is in receipt of compensation for infertility under the Armed Forces Compensation Scheme; and
c
after specialist sperm retrieval, wishes to receive infertility treatment and is eligible for, and has been accepted for, such treatment.
2
The Board must arrange, to such extent as it considers necessary to meet all reasonable requirements, for the provision as part of the health service of infertility treatment to a person to whom this regulation applies and to that person’s partner.
3
The infertility treatment referred to in paragraph (2) must —
a
in any case, include funding the cost of sperm storage facilities;
b
where, and to the extent that, the Board is satisfied that it is clinically appropriate in the circumstances of any particular case, include up to three cycles of in vitro fertilisation treatments or other means of assisted conception;
c
be provided at the same facility at which the specialist sperm retrieval took place and the extracted sperm of that person is stored.
4
For the purposes of this regulation and regulation 9 , “partner” is to be construed in accordance with regulation 7(6) to (9).
Infertility treatment: further provision
9
1
Where a person referred to in regulation 7(1)(a) or 8(1) —
a
has died or has become mentally incapacitated; and
b
has, before the time of that person’s death or mental incapacity —
i
made provision for sperm storage, and
ii
given written consent to the stored sperm being used by a named partner,
the Board must arrange, to such extent as it considers necessary to meet all reasonable requirements, for the provision as part of the health service of infertility treatment to that person’s named partner.
2
The infertility treatment referred to in paragraph (1) must —
a
in any case, include funding the cost of sperm storage facilities from the date on which the person died or, as the case may be, became mentally incapacitated; and
b
where, and to the extent that, the Board is satisfied that it is clinically appropriate in the circumstances of any particular case, include up to three cycles of in vitro fertilisation treatments and other means of assisted conception.
3
Where infertility treatment is provided by the Board under paragraph (1) to the named partner of a person referred to in regulation 8(1) , that treatment must be provided at the same facility at which specialist sperm retrieval took place in relation to that person and at which that person’s extracted sperm has been stored.
Services for prisoners and other detainees
10
1
Where a person is detained in a prison or in other accommodation described in paragraph (2), the Board must arrange, to such extent as it considers necessary to meet all reasonable requirements, for the provision to that person as part of the health service of —
a
community services;
b
secondary care services; and
c
the services specified in Schedule 4.
2
The other accommodation referred to in paragraph (1) is —
a
a court;
b
a secure children’s home (except those specified in Part 1 of Schedule 3);
c
a secure training centre specified in the first column of Table 1 in Schedule 3 from the date specified in the corresponding entry in the second column of that Table;
d
an immigration removal centre specified in the first column of Table 2 in Schedule 3 from the date specified in the corresponding entry in the second column of that Table; and
e
a young offender institution (except Ashfield Young Offender Institution).
3
In this regulation, “court” means any court in which criminal proceedings against a person are heard.
Specified services for rare and very rare conditions
11
The Board must arrange, to such extent as it considers necessary to meet all reasonable requirements, for the provision as part of the health service of the services specified in Schedule 4.
Assessment, diagnostic, elective and minor elective care services provided by Independent Sector Treatment Centres
12
1
This regulation applies to services provided by an Independent Sector Treatment Centre pursuant to the arrangements specified in paragraph (2) .
2
The arrangements referred to in paragraph (1) are —
a
the agreement made on 20th July 2005 and ending on 27th July 2013 between the Secretary of State for Health, Nations Healthcare (Nottingham) Limited, Nottinghamshire County Teaching Primary Care Trust, Nottingham City Primary Care Trust, Derby City Primary Care Trust, Derbyshire County Primary Care Trust, Lincolnshire Teaching Primary Care Trust, Leicestershire County and Rutland Primary Care Trust, Bassetlaw Primary Care Trust and Nottinghamshire University Hospitals NHS Trust for the provision of elective services and diagnostic services by Nations Healthcare (Nottingham) Limited;
b
the agreement made on 15th December 2006 and ending on 31st March 2014 between the Secretary of State for Health, InHealth Group Limited and InHealth London Limited for the provision of diagnostic services by InHealth London Limited;
c
the agreement made on 30th May 2008 and ending on 2nd February 2016 between the Secretary of State for Health, Care UK Clinical Services Limited and Care UK Limited for the provision of assessment and minor elective care services and diagnostic services by Care UK Clinical Services Limited;
d
the agreement made on 30th May 2008 and ending on 27th October 2015 between the Secretary of State for Health, PHG (Hampshire) Limited and Care UK plc for the provision of elective services and diagnostic services by PHG (Hampshire) Limited;
e
the agreement made on 31st July 2008 and ending on 31st October 2015 between the Secretary of State for Health, UKSH South West Limited and UK Specialist Hospitals Limited for the provision of elective services and diagnostic services by UKSH South West Limited; and
f
the agreement made on 26th September 2011 and ending on 16th October 2016 between the Secretary of State for Health, Clinicenta (Hertfordshire) Limited and Carillion plc for the provision of elective services and assessment and minor elective care services by Clinicenta (Hertfordshire) Limited.
3
The Board must arrange, to such extent as it considers necessary to meet all reasonable requirements, for the provision as part of the health service of the services to which each of the agreements specified in paragraph (2)(a) to (f) relates for the period beginning on 1st April 2013 and, in the case of each respective agreement, ending on the date on which that agreement comes to an end.
4
In this regulation —
“assessment and minor elective care services” means services related to the assessment, screening and planned care or treatment of minor medical conditions;
“diagnostic services” includes imaging services (such as MRI, CT, Ultrasound, Xray, Dexa Scan), physiological measurement, audiology, endoscopies, including direct access diagnostic services from primary care and other ancillary services needed to support the delivery of these services; and
“elective services” means clinical care services including Final Finished Consultant Episodes relating to, for example, trauma and orthopaedic surgery, general surgery, ear nose and throat, oral surgery, urology, gynaecology, plastic surgery, ophthalmology, hepatobiliary and pancreatic surgery, colorectal surgery, vascular surgery, gastroenterology, respiratory medicine, endocrinology, rheumatology, pain management and dermatology.
Fixated threat assessment services
13
1
The Board must arrange, to such extent as it considers necessary to meet all reasonable requirements, for the provision as part of the health service of specialised clinical risk assessment and management services for people with mental health problems who may present a risk to prominent people or locations.
2
The arrangements to be made by the Board under paragraph (1) must include —
a
the provision of funding for mental health staff to provide the services referred to in paragraph (1); and
b
such provision for partnership working with other persons or health services as is considered necessary to facilitate the effective delivery of those services.
PART 4 Mental health after-care services
Circumstances in which duty may be imposed on another CCG
14
1
The duty imposed by subsection (2) of section 117 of the 1983 Act on a CCG (CCG A) to arrange for the provision of after-care services for a person (P) to whom section 117 applies is to be imposed instead on another CCG (CCG B) in the circumstances below.
2
These circumstances are where CCG B has responsibility for P by virtue of —
a
section 3(1A) of the 2006 Act ; or
b
regulation 4 of, and sub-paragraph (c), (g), (h), (i) or (j) of paragraph 2 of Schedule 1 to these Regulations.
Circumstances in which duty may be imposed on the Board
15
1
The duty imposed by subsection (2) of section 117 of the 1983 Act on a CCG to arrange for the provision of after-care services for a person (P) to whom section 117 of the 1983 Act applies is to be imposed instead on the Board in the circumstances below.
2
These circumstances are where P is receiving an after-care service under section 117 which, if it were being provided under the 2006 Act, would be a service whose provision the Board had a duty to arrange.
PART 5 Standing rules: commissioning contract terms
Matters to be included in commissioning contracts
16
1
A commissioning contract entered into by a relevant body must contain terms and conditions that prescribe the circumstances in which the health service provider must provide to a relevant person —
a
an appropriate apology; and
b
the relevant information,
where there has been a patient safety incident.
2
In this regulation —
“appropriate apology” means a sincere expression of sorrow or regret, given in writing, for the harm that has resulted from a patient safety incident;
“patient safety incident” means an unintended or unexpected incident that occurs in respect of a patient, during and as a result of the provision of health care services, that could have led to, or did lead to, harm to that patient;
“relevant person” means the patient in respect of whom the patient safety incident occurred, or someone lawfully acting on that patient’s behalf;
“relevant information”, in relation to a patient safety incident, means written details of —
the patient safety incident,
any investigation that has been carried out into that incident, and any causes of that incident, or other findings, that have been identified as a result of such an investigation, and
any steps that have been taken to prevent the recurrence of such an incident.
Terms and conditions to be drafted by the Board
17
1
The Board must draft —
a
terms and conditions making provision for the matters specified in regulation 16 ; and
b
such other terms and conditions as the Board considers are, or might be, appropriate for inclusion in commissioning contracts entered into by a relevant body.
2
The Board may draft model commissioning contracts which reflect the terms and conditions it has drafted pursuant to paragraph (1) .
3
A relevant body must incorporate the terms and conditions drafted by virtue of paragraph (1)(a) in commissioning contracts entered into by it.
4
The Board may require CCGs to incorporate the terms and conditions it has drafted pursuant to paragraph (1) (b) in commissioning contracts that a CCG enters into.
5
If a CCG is required by the Board to incorporate terms and conditions pursuant to paragraph (4) , it must do so.
Consultation by the Board
18
1
The Board must consult the persons specified in paragraph (2) —
a
before exercising its functions under regulation 17(1) and (2) for the first time; and
b
before revising —
i
terms and conditions it has drafted pursuant to regulation 17(1) , or
ii
a model commissioning contract it has drafted pursuant to regulation 17(2) ,
in a way which would, in the opinion of the Board, result in a substantial change to those terms and conditions or that contract (as the case may be).
2
The persons specified for the purposes of paragraph (1) are —
a
the Care Quality Commission ;
b
CCGs;
c
Healthwatch England ;
d
Monitor ;
e
the Secretary of State; and
f
such other persons as the Board considers it is appropriate to consult.
Transitional provision
19
1
The requirements in regulations 16 and 17 apply in relation to commissioning contracts entered into on or after 1st February 2013.
2
Consultation undertaken before the coming into force of this Part is as effective for the purposes of regulation 18 as consultation undertaken after the coming into force of this Part.
PART 6 Standing rules: NHS Continuing Healthcare and NHS funded nursing care
Interpretation
20
1
In this Part —
“2008 Act” means the Health and Social Care Act 2008 ;
“Fast Track Pathway Tool” means the Fast Track Pathway Tool for NHS Continuing Healthcare issued by the Secretary of State and dated 28th November 2012 ;
“flat rate payment” means a payment of £108.70 per week;
“high band payment” means a payment made at the high band rate of £149.60 per week following a RNCC determination;
“low band payment” means a payment made at the low band rate following a RNCC determination;
“medium band payment” means a payment made at the medium band rate following a RNCC determination;
“National Framework” means the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care issued by the Secretary of State and dated 28th November 2012 ;
“NHS Continuing Healthcare” means a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs which have arisen as a result of disability, accident or illness;
“nursing care” means nursing care by a registered nurse and “nursing care by a registered nurse” has the same meaning as in section 49(2) of the Health and Social Care Act 2001 ;
“old Guidance” means the documents entitled “Guidance on Free Nursing Care in Nursing Homes” dated 25th September 2001 and “NHS Funded Nursing Care Practice Guidance and Workbook (August 2001)” dated 5th September 2001 , as supplemented by “NHS Continuing Health Care: Action following the Grogan Judgement” dated 3rd March 2006 ;
“registered manager” means, in respect of relevant premises, a person registered with the Care Quality Commission under Chapter 2 of Part 1 of the 2008 Act as a manager in respect of the regulated activity carried on at those premises;
“registered person” means, in respect of relevant premises, a person who is a service provider or registered manager in respect of those premises;
“regulated activity” means the activity of providing residential accommodation, together with personal or nursing care, specified in paragraph 2 of Schedule 1 to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 ;
“relevant premises” means premises where regulated activity is carried on and for which there is a registered person;
“relevant social services authority” means the social services authority appearing to a relevant body to be the authority in whose area a patient is ordinarily resident;
“RNCC determination” means a determination as to the Registered Nursing Contribution to Care taken in respect of a person in accordance with the National Health Service (Nursing Care in Residential Accommodation) (England) Directions 2001 ;
“service provider” means, in respect of relevant premises, a person registered with the Care Quality Commission under Chapter 2 of Part 1 of the 2008 Act as a service provider in respect of the regulated activity carried on at those premises;
“social services authority” means a local authority for the purposes of the Local Authority Social Services Act 1970 and the Council of the Isles of Scilly;
“social services authority area” means an area for which a local social services authority is responsible.
2
For the purposes of this Part a relevant body has responsibility for a person if the body is responsible —
a
in the case of a CCG, by virtue of —
i
section 3(1A) of the 2006 Act, except where the person is a person for whom another CCG is responsible by virtue of paragraph 2(b), (d), (e) or (f) of Schedule 1 to these Regulations, or
ii
paragraph 2, other than paragraph 2(a), of Schedule 1 to these Regulations; or
b
in the case of the Board, by virtue of regulation 7 (secondary care services and community services: serving members of the armed forces and their families) or regulation 10 (services for prisoners and other detainees).
3
For the purposes of this Part, an assessment in relation to a person’s need for nursing care means such assessment as the relevant body considers appropriate in the circumstances in order to determine whether the person has a need for nursing care.
Duty of relevant bodies: assessment and provision of NHS Continuing Healthcare
21
1
In exercising its functions under or by virtue of sections 3, 3A or 3B of the 2006 Act, insofar as they relate to NHS Continuing Healthcare, a relevant body must comply with paragraphs (2) to (11) .
2
A relevant body must take reasonable steps to ensure that an assessment of eligibility for NHS Continuing Healthcare is carried out in respect of a person for which that body has responsibility in all cases where it appears to that body that —
a
there may be a need for such care; or
b
an individual who is receiving NHS Continuing Healthcare may no longer be eligible for such care.
3
If an assessment for NHS Continuing Healthcare is required under paragraph (2)(a) , the relevant body must ensure that it is carried out before any assessment pursuant to regulation 28(1) (persons who enter relevant premises or who develop a need for nursing care) is carried out.
4
If a relevant body wishes to use an initial screening process to decide whether to undertake an assessment of a person’s eligibility for NHS Continuing Healthcare it must —
a
complete and use the NHS Continuing Healthcare Checklist issued by the Secretary of State and dated 28th November 2012 to inform that decision;
b
inform that person (or someone lawfully acting on that person’s behalf) in writing of the decision as to whether to carry out an assessment of that person’s eligibility for NHS Continuing Healthcare; and
c
make a record of that decision.
5
When carrying out an assessment of eligibility for NHS Continuing Healthcare, a relevant body must ensure that —
a
a multi-disciplinary team —
i
undertakes an assessment of needs, or has undertaken an assessment of needs, that is an accurate reflection of that person’s needs at the date of the assessment of eligibility for NHS Continuing Healthcare, and
ii
uses that assessment of needs to complete the Decision Support Tool for NHS Continuing Healthcare issued by the Secretary of State and dated 28th November 2012 ; and
b
the relevant body makes a decision as to whether that person has a primary health need in accordance with paragraph (7) , using the completed Decision Support Tool to inform that decision.
6
If a relevant body decides that a person has a primary health need in accordance with paragraph (5)(b) , it must also decide that that person is eligible for NHS Continuing Healthcare.
7
In deciding whether a person has a primary health need in accordance with paragraph (5)(b) , a relevant body must consider whether the nursing or other health services required by that person are —
a
where that person is, or is to be, accommodated in relevant premises, more than incidental or ancillary to the provision of accommodation which a social services authority is, or would be but for a person’s means, under a duty to provide; or
b
of a nature beyond which a social services authority whose primary responsibility is to provide social services could be expected to provide,
and, if it decides that the nursing or other health services required do, when considered in their totality, fall within sub-paragraph (a) or (b), it must decide that that person has a primary health need.
8
Paragraphs (2) to (6) do not apply where an appropriate clinician decides that —
a
an individual has a primary health need arising from a rapidly deteriorating condition; and
b
the condition may be entering a terminal phase,
and that clinician has completed a Fast Track Pathway Tool stating reasons for the decision.
9
A relevant body must, upon receipt of a Fast Track Pathway tool completed in accordance with paragraph (8) , decide that a person is eligible for NHS Continuing Healthcare.
10
Where an assessment of eligibility for NHS Continuing Healthcare has been carried out, or a relevant body has received a Fast Track Pathway Tool completed in accordance with paragraph (8) , the relevant body must —
a
notify the person assessed (or someone lawfully acting on that person’s behalf), in writing, of the decision made about their eligibility for NHS Continuing Healthcare, the reasons for that decision and, where applicable, the matters referred to in paragraph (11) ; and
b
make a record of that decision.
11
Where a relevant body has decided that a person is not eligible for NHS Continuing Healthcare, it must inform the person (or someone acting on that person’s behalf) of the circumstances and manner in which that person may apply for a review of the decision if they are dissatisfied with —
a
the procedure followed by the relevant body in reaching that decision; or
b
the primary health need decision made in accordance with paragraph (5)(b) .
12
In carrying out its duties under this regulation, a relevant body must have regard to the National Framework.
13
In this regulation —
“appropriate clinician” means a person who is —
responsible for the diagnosis, treatment or care of the person under the 2006 Act in respect of whom a Fast Track Pathway Tool is being completed, and
a registered nurse or a registered medical practitioner ;
“healthcare profession” means a profession which is concerned (wholly or partly) with the physical or mental health of individuals (whether or not that person is regulated by, or by virtue of, any enactment);
“multi-disciplinary team” means a team consisting of at least —
two professionals who are from different healthcare professions, or
one professional who is from a healthcare profession and one person who is responsible for assessing persons for community care services under section 47 of the National Health Service and Community Care Act 1990 .
Duty of relevant bodies: joint working with social services authorities
22
1
A relevant body must, insofar as is reasonably practicable —
a
consult with the relevant social services authority before making a decision about a person’s eligibility for NHS Continuing Healthcare, including any decision that a person receiving NHS Continuing Healthcare is no longer eligible to do so; and
b
co-operate with the relevant social services authority in arranging for persons to participate in a multi-disciplinary team for the purpose of fulfilling its duty under regulation 21(5) .
2
Where there is a dispute between a relevant body and the relevant social services authority about —
a
a decision as to eligibility for NHS Continuing Healthcare; or
b
where a person is not eligible for NHS Continuing Healthcare, the contribution of a relevant body or social services authority to a joint package of care for that person,
the relevant body must, having regard to the National Framework, agree a dispute resolution procedure with the relevant social services authority, and resolve the disagreement in accordance with that procedure.
3
In complying with its duties under regulation 21 and this regulation, a relevant body must have due regard to the need to promote and secure the continuity of appropriate services for persons who —
a
are receiving community care services under section 47 of the National Health Service and Community Care Act 1990 on the date on which they are found to be eligible to receive NHS Continuing Healthcare;
b
have been in receipt of NHS Continuing Healthcare but are determined to be no longer eligible for NHS Continuing Healthcare; or
c
are otherwise determined to be ineligible for NHS Continuing Healthcare.
The Board’s duty: reviewing decisions
23
1
The Board must —
a
appoint such number of persons to act as chairs of the panels referred to in paragraph (4) (“chairs”) as the Board considers reasonable to ensure that applications for a review under paragraph (3) can be considered by such a panel within a reasonable time; and
b
establish a list consisting of the following persons —
i
at least one person (“a CCG member”) appointed by the Board in respect of each CCG, and
ii
at least one person (“a social services authority member”) appointed by the Board in respect of each social services authority.
2
In complying with its duty under paragraph (1) , the Board must ensure that the persons it —
a
appoints under paragraph (1)(a) ; or
b
includes in a list pursuant to paragraph (1)(b) ,
reside in locations that have a sufficient geographical distribution to ensure that a review panel can be held in any social services authority area in England.
3
Where a person, or someone lawfully acting on a person’s behalf —
a
is dissatisfied with —
i
the procedure followed by a relevant body in reaching a decision as to that person’s eligibility for NHS Continuing Healthcare pursuant to regulation 21(5) , or
ii
the primary health need decision by a relevant body pursuant to regulation 21(5)(b) ; and
b
the person has —
i
used the resolution procedure of the relevant body in question, but that has not resolved the matter, or
ii
not used that resolution procedure and the Board is satisfied that requiring the person to do so would cause undue delay,
that person may apply in writing to the Board for a review of that decision.
4
Following receipt of an application for a review under paragraph (3) , the Board may refer the matter for a decision to a panel of members (“a review panel”) consisting of —
a
a chair;
b
one CCG member drawn from the list established under paragraph (1)(b) who has been appointed in respect of a CCG, other than a CCG whose procedure or decision is the subject of the review; and
c
one social services authority member drawn from that list who has been appointed in respect of a social services authority other than one in whose area is situated all or part of the area of a CCG whose procedure or decision is the subject of the review.
5
Where an application for a review under paragraph (3) relates to the procedure followed by, or a decision taken by, the Board, it must ensure that in organising a review of that decision, it makes appropriate arrangements as regards the manner in which it organises such a review so as to avoid any conflict of interest.
6
The procedure and operation of the review panel are to be a matter for the chair of the review panel, having regard to the National Framework.
7
The Board must, as soon as reasonably practicable, give notice in writing of the review decision and the reasons for it to the applicant and, where the relevant body is a CCG, to the CCG whose decision has been the subject of review.
8
A relevant body must, unless it determines in accordance with paragraph (9) that there are exceptional reasons not to do so, implement the decision of the review panel as soon as reasonably practicable.
9
In determining whether under paragraph (8) there are exceptional reasons, a relevant body must have regard to the National Framework.
Appointment and term of appointment
24
1
Subject to regulation 25 (disqualification for appointment), the CCG members and social services authority members must be appointed by the Board following nomination by a CCG or a social services authority in respect of which they are to be appointed.
2
A CCG must —
a
when requested to do so by the Board, provide its nomination pursuant to paragraph (1) as soon as is reasonably practicable; and
b
ensure that CCG members are, so far as reasonably practicable, available to participate in review panels.
3
Subject to regulation 27 (termination of appointment), the term of appointment of a chair, a CCG member or a social services authority member is to be such period, not exceeding three years, as the Board specifies on making the appointment.
4
Subject to regulation 25 (disqualification for appointment), a chair, CCG member or social services authority member is to be eligible for reappointment on the termination of the period of that chair or member’s term of appointment.
5
The Board must pay to a chair such remuneration and expenses as appear to it to be reasonable.
Disqualification for appointment
25
1
A person is disqualified for appointment as a chair if that person is —
a
the chair, a member (other than a member of an NHS foundation trust), a director, a governor or an employee of an NHS body;
b
the chair or a member of the governing body of a CCG; or
c
an elected member or employee of a social services authority in England and Wales or of an equivalent body in Scotland or Northern Ireland.
2
A person is disqualified for appointment as a CCG member or social services authority member if that person is —
a
the chair, the chief executive, a non-executive director or a non-officer member of an NHS body (other than a member of an NHS foundation trust);
b
the chair or a member of the governing body of a CCG; or
c
an elected member of a social services authority in England and Wales or of an equivalent body in Scotland or Northern Ireland.
3
Persons of the description set out in Schedule 5 are, subject to regulation 26 (cessation of disqualification), disqualified for appointment as a chair, CCG member or social services authority member.
Cessation of disqualification
26
1
Where a person is disqualified under paragraph 5 of Schedule 5 —
a
that person may, after the second anniversary of the day on which they were dismissed, apply in writing to the Board to remove the disqualification for appointment as a chair, CCG member or social services authority member; and
b
the Board may decide that the disqualification is removed.
2
Where the Board refuses an application to remove a disqualification, no further application may be made by that person to the Board until the second anniversary of the day of the refusal and this paragraph applies to any subsequent application.
3
Where a person is disqualified under paragraph 6 of Schedule 5, the disqualification is to cease on the second anniversary of the termination of the person’s appointment, or at the end of such longer period as may have been specified on termination.
Termination of appointment
27
1
A chair, CCG member or social services authority member may resign at any time during their term of appointment by giving notice in writing to the Chief Executive of the Board.
2
Subject to paragraph (3) , where the Board is of the opinion that it is not in the interests of the health service that a chair, CCG member or social services authority member should continue to hold office, it may terminate that person’s appointment with immediate effect by giving notice to that person in writing to that effect.
3
The term of appointment of a CCG member or social services authority member must not be terminated under paragraph (2) unless the body responsible for nominating that member has been consulted.
4
Where a person has been appointed by the Board to be a chair, CCG member or social services authority member, if it comes to the attention of the Board that —
a
that person has become disqualified for appointment under regulation 25 , the Board must notify that person in writing of such disqualification; or
b
at the time of that person’s appointment they were so disqualified, the Board must declare that the person in question was not duly appointed and notify that person in writing to that effect.
5
Upon receipt of any notification referred to in paragraph (4) , the person’s term of appointment, if any, terminates with immediate effect and that person must cease to act as a chair, CCG member or social services authority member.
Persons who enter relevant premises or who develop a need for nursing care
28
1
Subject to paragraphs (2) and (3) , where it appears to a relevant body in respect of a person for whom it has responsibility that that person —
a
is resident in relevant premises or may need to become resident in such premises; and
b
may be in need of nursing care,
that body must carry out an assessment of the need for nursing care.
2
Before carrying out an assessment under paragraph (1) , the relevant body must consider whether its duty under regulation 21(2) is engaged, and if so, it must comply with the requirements of regulation 21 prior to carrying out any assessment under this regulation.
3
Paragraph (1) does not apply if a relevant body has made arrangements for providing the person with NHS Continuing Healthcare.
4
Where —
a
the relevant body has carried out an assessment pursuant to regulation 21(2) ; but
b
paragraph (3) does not apply because a decision has been made that the person is not eligible for NHS Continuing Healthcare,
that body must nevertheless use that assessment, wherever reasonably practicable, in making its assessment under paragraph (1) .
5
Where —
a
the relevant body determines that a person has a need for nursing care pursuant to this regulation; and
b
the person has agreed with that body that that person does want to be provided with such nursing care,
paragraph (6) applies.
6
The relevant body must pay to a registered person for the relevant premises the flat rate in respect of that person’s nursing care unless or until that person —
a
has their need for nursing care assessed and it is determined that that person no longer has any need for nursing care;
b
is no longer resident in the relevant premises;
c
becomes eligible for NHS Continuing Healthcare pursuant to this Part; or
d
dies.
Persons in receipt of flat rate payments immediately before the relevant date
29
1
Where, immediately before the relevant date, a Primary Care Trust was making a flat rate payment in respect of any person pursuant to the National Health Service (Nursing Care in Residential Accommodation) (England) Directions 2007 , paragraph (2) applies.
2
The relevant body which has responsibility for a person falling within paragraph (1) must continue to pay to a registered person for the relevant premises the flat rate payment in respect of the person falling within paragraph (1) on and after the relevant date unless or until that person —
a
has their need for nursing care assessed on or after the relevant date and it is determined that that person no longer has any need for nursing care;
b
is no longer resident in the relevant premises;
c
becomes eligible for NHS Continuing Healthcare pursuant to this Part; or
d
dies.
Persons in receipt of high band payments immediately before the relevant date
30
1
Where, immediately before the relevant date, a Primary Care Trust was making a high band payment in respect of any person pursuant to direction 4 of the National Health Service (Nursing Care in Residential Accommodation) (England) Directions 2007, paragraphs (2) and (3) apply.
2
The relevant body which has responsibility for a person falling within paragraph (1) must continue to pay the high band payment to a registered person for the relevant premises in respect of the person falling within paragraph (1) on and after the relevant date unless or until that person —
a
has their need for nursing care assessed on or after the relevant date and it is determined that that person no longer has any need for nursing care;
b
is no longer resident in the relevant premises;
c
becomes eligible for NHS Continuing Healthcare pursuant to this Part; or
d
dies,
unless paragraph (3) applies.
3
Where a person in respect of whom a high band payment is being made pursuant to this regulation —
a
has their need for nursing care assessed on or after the relevant date; and
b
following that assessment it is determined that that person’s need for nursing care has diminished to the extent that if the old Guidance were applied, that person would be eligible only for a medium band payment or low band payment,
the relevant body with responsibility for that person must comply with paragraph (4) .
4
Where paragraph (3) applies, the relevant body must give —
a
the person in respect of whom the high band payment was being made (and where appropriate that person’s representative); and
b
the registered person,
written notice of the outcome of the assessment referred to in paragraph (3) and must, no sooner than 14 days beginning with the date that notice is given, thereafter pay the flat rate payment in respect of that person unless or until paragraph (2)(a) , (b), (c) or (d) applies.
Urgent need
31
Nothing in regulations 28 to 30 prevents a relevant body from temporarily providing nursing care to a person without carrying out an assessment if, in the opinion of that body, the condition of that person is such that those services are required urgently.
Revocation and transitional provisions
32
1
Where a Primary Care Trust has, before the relevant date, determined that a person is eligible for NHS Continuing Healthcare under direction 2 of the NHS Continuing Healthcare (Responsibilities) Directions 2009 (“the Responsibilities Directions”) or the Delayed Discharges (Continuing Care) Directions 2009 (“the Delayed Discharges Directions”), the relevant body with responsibility for that person on the relevant date must continue to provide NHS Continuing Healthcare unless —
a
regulation 21(2)(b) applies;
b
an assessment of eligibility for NHS Continuing Healthcare is undertaken pursuant to regulation 21 ; and
c
that body determines that the person is no longer eligible for NHS Continuing Healthcare.
2
Where a Primary Care Trust has, before the relevant date —
a
started an initial screening process to decide whether to undertake an assessment of a person’s eligibility for NHS Continuing Healthcare under direction 2(4) of the Responsibilities Directions or the Delayed Discharges Directions but not completed the process, the relevant body with responsibility for that person must —
i
complete the initial screening process as if it had commenced under regulation 21(4) , and
ii
where the outcome of that process is that an assessment for NHS Continuing Healthcare is required, assess that person’s eligibility for NHS Continuing Healthcare under this Part; or
b
started to assess a person’s eligibility for NHS Continuing Healthcare under paragraphs (5) to (7) of direction 2 of the Responsibilities Directions or the Delayed Discharges Directions, the relevant body with responsibility for that person must complete the assessment as if it had commenced under regulation 21 .
3
This paragraph applies where —
a
a Strategic Health Authority has before the relevant date, received an application for a review of procedure or a decision pursuant to direction 4(2) of the Responsibilities Directions in respect of which a decision has not been made before the relevant date; or
b
on or after the relevant date the Board receives an application for a review of procedure or a decision which would have been a valid application under direction 4(2) of the Responsibilities Directions if made before the relevant date.
4
Where paragraph (3) applies, the Board must organise or complete the review in accordance with regulation 23 (the Board’s duty: reviewing decisions).
5
Subject to regulation 27 , the appointment of a person appointed as a chair in accordance with the Responsibilities Directions continues for such period as it would have continued if those directions had not been revoked, and such a person must be treated as if they had been appointed by the Board under regulation 23 .
6
Subject to regulation 27 , the appointment of a person appointed as a PCT member or social services authority member in accordance with the 2009 Directions continues for such period as it would have continued if those directions had not been revoked and —
a
such a person must be treated as if they had been appointed by the Board under regulation 24 ; and
b
in the case of a PCT member, as if that person were appointed as a CCG member in respect of each CCG whose area falls wholly or partly within the area of the PCT in relation to which they were a PCT member.
7
The following directions are revoked —
a
the National Health Service (Nursing Care in Residential Accommodation) (England) Directions 2007 which came into force on 1st October 2007;
b
the National Health Service (Nursing Care in Residential Accommodation) (Amendment) (England) Directions 2009 which came into force on 1st October 2009 ;
c
the NHS Continuing Healthcare (Responsibilities) Directions 2009 which came into force on 1st October 2009; and
d
the Delayed Discharges (Continuing Care) Directions 2009 which came into force on 28th September 2009 .
PART 7 Standing rules: decisions about drugs and other treatments
Interpretation
33
In this Part —
“health care intervention” includes the use of a medicine or medical device, diagnostic technique, surgical procedure or other therapeutic intervention;
“NICE” means —
until the coming into force of section 232 of the 2012 Act , the National Institute for Health and Clinical Excellence ; and
from the coming into force of that section, the National Institute for Health and Care Excellence;
“relevant NICE recommendations” means —
any directions given by the Secretary of State as to the application of sums paid to a Primary Care Trust under section 228 of the 2006 Act (public funding by Primary Care Trusts) in relation to a health care intervention recommended by NICE; and
from the coming into force of section 237(8) of the 2012 Act (NICE advice, guidance, information and recommendations), recommendations specified, or recommendations of a description specified, in regulations made under that section where the relevant body —
is specified in such regulations as required to comply with the recommendation, or
is a health and social care body of a description specified in such regulations as a health and social care body that is required to comply with the recommendation.
Duty of a relevant body in respect of the funding and commissioning of drugs and other treatments
34
1
A relevant body must have in place arrangements for making decisions and adopting policies on whether a particular health care intervention is to be made available for persons for whom the relevant body has responsibility.
2
Arrangements under paragraph (1) must —
a
ensure that the relevant body complies with relevant NICE recommendations; and
b
include arrangements for the determination of any request for the funding of a health care intervention for a person, where there is no relevant NICE recommendation and the relevant body’s general policy is not to fund that intervention.
Duty to give reasons for decisions
35
1
A relevant body must —
a
publish on its website a written statement of its reasons for any general policy it has on whether a particular healthcare intervention is to be made available for persons for whom it has responsibility; or
b
where it has not published such a statement, provide a written statement of the reasons for any such policy when any person makes a written request for such a statement.
2
Where a relevant body —
a
makes a decision to refuse a request for the funding of a health care intervention for a person; and
b
its general policy is not to fund that intervention,
the relevant body must provide that person with the reasons for that decision in writing.
Duty to provide written information
36
Each relevant body must compile information in writing describing the arrangements it has made pursuant to the requirements in regulation 34 and must ensure that that information is —
a
published on the website of the relevant body; and
b
available to inspect at the head or main office of the relevant body.
Transitional provisions
37
1
For the purposes of this regulation, a relevant body has responsibility for a person in respect of a healthcare intervention only if it has responsibility for that person in relation to services which involve, or would if the intervention was funded involve, the provision of that intervention.
2
Where, before the relevant date —
a
a person has made a request for a written statement of the reasons for a Primary Care Trust’s general policy on whether a particular health care intervention is to be funded pursuant to direction 3(1) of the Directions to Primary Care Trusts and NHS trusts concerning decisions about drugs and other treatments 2009 which came into force on 1st April 2009 (“the Decisions Directions”) ; and
b
a written statement of reasons has not been provided by the Primary Care Trust to whom that request was made before the relevant date in accordance with that direction,
the relevant body with responsibility for that person must provide a written statement of reasons as soon as reasonably practicable as if the request had been made under regulation 35(1)(b) .
3
Where, before the relevant date, a Primary Care Trust —
a
has made a decision to refuse a request for the funding of a health care intervention in respect of a person where the Primary Care Trust’s general policy is not to fund that intervention; but
b
has not provided that person with a written statement of reasons for that decision pursuant to direction 3(3) of the Decisions Directions,
the relevant body with responsibility for that person must provide a written statement of reasons to that person as soon as reasonably practicable as if regulation 35(2) applied.
4
Where, before the relevant date, a Primary Care Trust —
a
has made a decision to fund a health care intervention for a person where the Primary Care Trust’s general policy is not to fund that intervention; but
b
has not notified that person of that decision,
the relevant body with responsibility for that person must notify that person as soon as reasonably practicable of that decision, and fund that intervention.
5
Where, before the relevant date, a Primary Care Trust has received a request for the funding of a health care intervention but has not yet determined it pursuant to arrangements made under direction 2(3)(a) of the Decisions Directions, the relevant body with responsibility for the person who made the request must —
a
decide whether or not to fund that intervention; and
b
if the decision is to refuse to fund that intervention, provide a written statement of reasons to that person as soon as reasonably practicable as if regulation 35(2) applied.
PART 8 Standing rules: choice of health service provider
Interpretation
38
In this Part —
“elective referral” means referral by a general medical practitioner, general dental practitioner or optometrist to a health service provider for treatment that is not identified as being immediately required at the time of referral;
“Choice Directions” means the Primary Care Trusts (Choice of Secondary Care Provider) Directions 2009 which came into force on 1st April 2009 ;
“prison” includes any other institution to which prison rules made under section 47 of the Prison Act 1952 apply.
Duty to ensure persons are offered a choice of health service provider
39
1
A relevant body must make arrangements to ensure that a person —
a
who requires an elective referral; and
b
for whom that body has responsibility,
is given the choices specified in paragraph (2) .
2
Subject to regulations 40 and 41 , the choices specified for the purposes of this paragraph are the choice, in respect of a first outpatient appointment with a consultant or a member of a consultant’s team, of —
a
any clinically appropriate health service provider with whom any relevant body has a commissioning contract for the service required as a result of the referral; and
b
any clinically appropriate team led by a named consultant who is employed or engaged by that health service provider.
3
A relevant body must make arrangements to ensure that a person —
a
who requires an elective referral for mental health services; and
b
for whom that body has responsibility in relation to the services in respect of which the referral is made,
is given the choice specified in paragraph (4) .
4
Subject to regulation 41 , the choice specified for the purposes of this paragraph is the choice, in respect of a first outpatient appointment with a health care professional or a member of a health care professional’s team, of any clinically appropriate team led by a named health care professional who is employed or engaged by the health service provider to whom the patient has been referred.
5
The arrangements referred to in paragraphs (1) and (3) must include such arrangements as are necessary to ensure that a person may make the choices specified in those paragraphs where that person —
a
has not been offered that choice by the person making the initial referral; and
b
notifies the relevant body who has responsibility for that person that that choice was not offered.
6
For the purposes of this Part, a health service provider, or a team led by a consultant or a health care professional, is clinically appropriate if, in the opinion of the person making the referral, they offer services that are clinically appropriate for that person in respect of the condition for which that person is referred.
Services to which the duties as to choice do not apply
40
1
Regulation 39(1) does not apply to the following services —
a
cancer services which are subject to the 2 week maximum waiting time by virtue of regulation 52 ;
b
maternity services; or
c
mental health services.
2
Regulation 39(1) and (3) do not apply to any service where it is necessary to provide urgent care.
Persons to whom the duties as to choice do not apply
41
Regulations 39(1) and (3) do not apply in relation to any person who is —
a
detained under the 1983 Act;
b
detained in or on temporary release from prison; or
c
serving as a member of the armed forces.
Duty to publicise and promote information about choice
42
1
A relevant body must make arrangements to ensure that the availability of choice under the arrangements it makes pursuant to regulation 39 are publicised and promoted.
2
Without prejudice to the generality of paragraph (1) , those arrangements must include arrangements for —
a
publicising, and promoting awareness of, information about —
i
health service providers for the purpose of enabling a person to choose a health service provider in accordance with arrangements that the relevant body has made pursuant to regulation 39(1) ,
ii
consultant-led teams for the purpose of enabling a person to choose a clinically appropriate team in accordance with arrangements that the relevant body has made pursuant to regulation 39(1) , and
iii
teams led by health care professionals providing mental health services for the purpose of enabling a person to choose a clinically appropriate team in accordance with arrangements that the relevant body has made pursuant to regulation 39(3) ; and
b
publicising details, and promoting awareness, of where that information may be found.
Transitional provision
43
1
Where, before the relevant date —
a
a person requires an elective referral;
b
that person has not yet seen a clinically appropriate secondary care provider as a result of the referral; and
c
that person had not been offered the choice of any clinically appropriate secondary care provider in relation to that referral,
the relevant body that has responsibility for that person on and after the relevant date must comply with paragraph (2).
2
The relevant body must ensure that, in respect of a person falling within paragraph (1) , it complies with directions 2 to 4 of the Choice Directions in respect of the person as if —
a
the Choice Directions continued in force on and after the relevant date in respect of that person;
b
references to “Primary Care Trust” in those directions, and any relevant guidance referred to in those directions, were a reference to the relevant body that has responsibility for that person; and
c
references to “secondary care provider” were references to “health service provider” within the meaning of these Regulations.
3
Where —
a
a person —
i
makes a complaint to a Primary Care Trust before the relevant date in accordance with a complaints procedure published pursuant to direction 7 of the Choice Directions, and
ii
that complaint has not been resolved in accordance with that published procedure before the relevant date; or
b
a person makes a complaint to a relevant body on or after the relevant date in respect of failure before that date to ensure that choice is offered pursuant to direction 2 of the Choice Directions, or failure to publicise or promote such choice in accordance with direction 6 of those Directions,
the relevant body that has responsibility for that person on and after the relevant date must comply with paragraph (4) .
4
The relevant body must ensure that, in respect of a person who makes a complaint falling within paragraph (3)(a) or (b), it deals with the complaint in accordance with the procedures published pursuant to direction 7 of the Choice Directions by the Primary Care Trust that previously had responsibility for that person.
5
In this regulation, “clinically appropriate secondary care provider” has the meaning given in direction 1(2) and (3)(a) of the Choice Directions.
PART 9 Standing rules: waiting times
Interpretation
44
1
In this Part —
“appropriate treatment” means treatment that is the first treatment provided to a person as a result of, and in response to, an elective referral;
“eligible referrer” means —
a general dental practitioner,
a general medical practitioner,
a person approved to make an elective referral under arrangements made by the relevant body which has responsibility for the person being referred, and
any other person whose request to refer is accepted by —
a consultant,
a member of a consultant’s team, or
persons providing interface services where a person who has been referred may be referred on from those services to a consultant or consultant-led team,
who is to provide the assessment or treatment required as a result of a referral;
“elective referral” means referral by an eligible referrer to a health service provider for assessment or treatment that is not identified as being immediately required at the time of referral;
“each data collection period” means each calendar month and the end of such a period means the end of the last day of the calendar month in question;
“interface services” means services that are provided otherwise than by a consultant-led team, which provide clinical triage, assessment and treatment services, but does not include mental health services or services provided under a primary care contract;
“registered healthcare professional” means a person who is a member of a profession regulated by one of the following bodies —
the General Medical Council,
the Nursing and Midwifery Council, or
the Health and Care Professions Council;
“specialist” means a registered healthcare professional working as a consultant, or as part of a consultant-led team, who specialises in the area of professional practice which is most appropriate for the diagnosis and treatment of the type of suspected cancer in question;
“start date” means the date on which the person’s referral request was received by the health service provider to whom that person has been referred for the provision of health care services by —
in regulations 45 to 51 ─
an eligible referrer; or
themselves, with the prior approval of an eligible referrer, or
in regulations 52 and 53 , a general medical practitioner, a general dental practitioner or a person authorised to act on their behalf;
“suitable health service provider”, in relation to a person who has been referred for assessment or treatment, is a health service provider who —
can provide services which consist of, or include, treatment which is clinically appropriate for that person in response to the reasons for the referral, and
will provide those services pursuant to a commissioning contract with a relevant body;
“treatment” means an intervention that is intended to manage a person’s disease, condition or injury and, insofar as reasonably practicable, avoid further interventions, but does not include a therapy or healthcare intervention referred to in regulation 46(3) ;
“treatment for suspected cancer” means —
assessment by a specialist in order to progress towards a diagnosis, or
treatment for suspected cancer that is provided by a specialist;
“Waiting Times Directions” means the Primary Care Trusts and Strategic Health Authorities (Waiting Times) Directions 2010 which came into force on 1st April 2010 .
2
For the purposes of this Part, where reference is made to an appointment date being reasonable, it is reasonable if it falls at least 3 weeks after the date on which the offer of the appointment was made.
Duty to meet the maximum waiting times standards
45
1
A relevant body must make arrangements to ensure that persons —
a
for whom the relevant body has responsibility; and
b
who require an elective referral,
commence appropriate treatment in accordance with paragraph (2).
2
The requirement referred to in paragraph (1) is that at the end of each data collection period, appropriate treatment has commenced within the period of eighteen weeks beginning with the start date in not less than —
a
95% of cases where the appropriate treatment is provided during that data collection period without admitting as an in-patient a person receiving that treatment; and
b
90% of cases where a person is admitted as an in-patient in order to receive that treatment during that data collection period.
3
A relevant body must make arrangements to ensure that at the end of each data collection period, not less than 92% of the persons falling with paragraph (4) have been waiting to commence treatment for less than 18 weeks.
4
A person falls within this paragraph if —
a
the relevant body has responsibility for that person;
b
there has been a start date in respect of that person; and
c
the person’s waiting time period, as specified in regulation 46 , has not come to an end.
5
Where —
a
a decision has been made to admit a person to hospital for treatment as an in-patient as a result of, and in response to, an elective referral;
b
that person has been offered at least two different reasonable appointment dates for admission to hospital for that treatment but has declined to attend on any of the dates offered,
the period of time described in paragraph (6) may be excluded from the calculation of the period of time for which that person has been waiting to commence appropriate treatment for the purpose of calculating the percentage of persons falling under paragraph (2)(b) .
6
The period of time to be excluded for the purposes of the calculation referred to in paragraph (5) —
a
begins with the date of the earliest appointment date that was offered; and
b
ends on the date on which the person is available again for admission to hospital for the treatment required as a result of, and in response to, the elective referral, where that person has notified the health service provider, whether verbally or in writing, of that date.
The waiting time period
46
1
The waiting time period for a person, as referred to in regulation 45(4)(c) , begins with the start date and ends when any of the following paragraphs applies.
2
The referred person received appropriate treatment.
3
The referred person commenced therapy or received a healthcare science intervention where a consultant, a member of a consultant-led team or an individual providing an interface service decides that the therapy or that intervention is the treatment that is most appropriate for that person.
4
A person’s name is added to a national transplant waiting list.
5
The referred person is notified, verbally or in writing, that the calculation of the period of eighteen weeks beginning on the start date no longer applies in their case because —
a
it is more appropriate for that person to receive treatment from a primary care service;
b
a clinical decision is made to start a period of monitoring of that person prior to any decision being made as to what, if any, treatment should be provided;
c
a clinical decision is made that no treatment should be provided to that person;
d
they did not attend the first appointment made as a result of the referral by the health service provider to whom they were referred and they —
i
had been made aware of the consequences of not attending an appointment, and
ii
had not requested in advance of the date for the first appointment that the appointment be re-arranged for a different date; or
e
they are being discharged back in to the care of their general medical practitioner because they did not attend an appointment, other than an appointment referred to in sub-paragraph (d) , made as a result of the referral by the health service provider to whom they were referred and they —
i
had been made aware of the consequences of not attending an appointment, and
ii
had not requested in advance of the date for that appointment that the appointment be re-arranged for a different date.
Application of duty to offer an alternative provider
47
1
Regulation 48 applies if the conditions in paragraph (2) to (6) are met.
2
A person has been referred to a health service provider (“the relevant health service provider”) for the provision of health care services by —
a
an eligible referrer; or
b
themselves, with the prior approval of an eligible referrer.
3
The referral is for assessment or treatment in the course of the provision of health care services by —
a
a consultant;
b
a member of a consultant’s team; or
c
persons providing interface services where a person who has been referred may be referred on from those services to a consultant or consultant-led team.
4
The relevant health service provider, or the relevant body which has responsibility for the person referred, has been notified that the person referred —
a
has not commenced appropriate treatment; or
b
will not have commenced appropriate treatment,
within eighteen weeks, beginning with the start date.
5
The notification referred to in paragraph (4) was given by —
a
in the case of the relevant health service provider or a CCG, the person referred or a person lawfully acting on their behalf; or
b
in the case of the Board, a CCG which has been notified by the person referred or a person lawfully acting on their behalf.
6
The relevant body which has responsibility for the person referred is satisfied that the person has not commenced or will not commence appropriate treatment within eighteen weeks, beginning with the start date.
Duty to offer an alternative provider
48
1
Subject to regulation 49 , where this regulation applies, the relevant body which has responsibility for the person referred must take all reasonable steps to ensure that that person is offered an appointment in accordance with paragraphs (2) to (4) .
2
The appointment offered must be with a consultant, or a member of a consultant’s team, at a suitable health service provider other than the relevant health service provider.
3
The appointment must be an appointment to commence treatment earlier than the person referred would have commenced treatment if they had continued to wait for treatment at the relevant health service provider.
4
If there is more than one suitable health service provider, the person referred must be offered a choice of appointment with more than one suitable health service provider that meets the requirements of paragraphs (2) and (3) .
5
In this regulation and regulation 49 , “relevant health service provider” has the meaning given to it in regulation 47(2) .
Exceptions to the duty
49
1
Regulation 48 does not apply in the circumstances described in any of paragraphs (2) to (10).
2
The person referred did not attend an appointment made by the relevant health service provider in response to the referral where —
a
the date for the appointment was reasonable;
b
that person had been made aware of the consequences of not attending appointments; and
c
that person had not requested in advance that the date for that appointment be re-arranged.
3
The person referred did not attend a re-arranged appointment made by the relevant health service provider in response to the referral where —
a
that person had re-arranged the date of the appointment;
b
the original date for the appointment had been reasonable; and
c
that person had been made aware of the consequences of not attending appointments.
4
The patient chose to commence treatment on a date falling after the end of the period of 18 weeks beginning with the start date where —
a
that patient had been offered a reasonable appointment date falling within that period; or
b
they decided that they did not want to be offered any appointment dates within that period.
5
The person referred decided that they did not want to commence treatment.
6
The person referred was unable to commence treatment during the period of 18 weeks beginning with the start date for reasons not related to the relevant health service provider, or relevant body which has responsibility for that person, where that person —
a
has been offered a reasonable appointment date falling within that period; or
b
was unable to make themselves available for any appointment dates within that period.
7
A person falling within regulation 47(3) (a), (b) or (c) has assessed the person referred and decided —
a
that it is in the best clinical interests of that patient to commence treatment after the end of the period of 18 weeks beginning with the start date;
b
that the person does not need treatment; or
c
to refer the patient back to primary care services prior to any treatment commencing.
8
A person falling within regulation 47(3) (a), (b) or (c) has assessed the person referred and decided that the person requires a period of monitoring which consist of or includes being re-assessed at intervals within the period of 18 weeks beginning with the start date.
9
The patient is placed on the national transplant waiting list.
10
The patient is referred for the purpose of receiving maternity services.
Duty to have regard to guidance
50
In carrying out its duties under regulations 45 and 48 , a relevant body must have regard to the document entitled “The Referral to Treatment Consultant-led Waiting Times Rules Suite” dated January 2012 .
Duty to notify
51
Where —
a
a person meets the conditions in regulation 47(2) and (3);
b
the Board has responsibility for that person in respect of the health care service to be provided on referral; and
c
a CCG receives notification from that person, or a person acting lawfully on that person’s behalf, that they —
i
have not commenced appropriate treatment; or
ii
will not commence appropriate treatment,
within 18 weeks beginning with the start date,
that CCG must notify the Board in writing of that information.
Duty to make arrangements to provide an appointment with a specialist for those patients urgently referred for treatment for suspected cancer
52
1
A relevant body must make arrangements to ensure that persons —
a
for whom the relevant body has responsibility; and
b
in respect of whom an urgent referral for suspected cancer is made by —
i
a general medical practitioner or a person authorised to act on their behalf, or
ii
a general dental practitioner or a person authorised to act on their behalf,
are provided with treatment for suspected cancer in accordance with paragraph (2) .
2
The requirement referred to in paragraph (1) is that at the end of each data collection period, treatment for suspected cancer has commenced within the period of 2 weeks beginning with the start date in not less than 93% of cases where that treatment is provided in that data collection period.
3
Where —
a
the person referred did not attend an appointment made by a health service provider in response to the urgent referral; and
b
that person had not requested in advance of the appointment that the date for that appointment be rearranged,
the period of time described in paragraph (4) is to be excluded from the calculation of the period of 2 weeks beginning with the start date referred to in paragraph (2) .
4
The period of time to be excluded for the purposes of paragraph (3) —
a
begins with the start date; and
b
ends on the date on which the health service provider receives notification from the person who has been urgently referred that they are available again for an appointment for treatment for suspected cancer.
5
In carrying out its duties under this regulation, a relevant body must have regard to the National Institute for Health and Clinical Excellence Referral Guidelines for Suspected Cancer dated June 2005 .
Duty to offer alternative provider for treatment for suspected cancer
53
1
Paragraph (2) applies where —
a
a person has been referred urgently for treatment for suspected cancer to a health service provider (“the relevant provider”);
b
the referral is made by —
i
a general medical practitioner or a person authorised to act on their behalf, or
ii
a general dental practitioner or a person authorised to act on their behalf;
c
the referral is for an appointment with a specialist with a view to diagnosis or treatment of cancer;
d
the referred person, or a person lawfully acting on their behalf, notifies the relevant provider or the relevant body which has responsibility for the person referred, that they have not had an appointment, or will not have an appointment, within two weeks beginning with the date on which the person’s referral request is received by the relevant provider (“the relevant period”); and
e
the relevant provider or the relevant body is satisfied that the person referred has not or will not have an appointment within the relevant period.
2
Where this paragraph applies, the relevant body which has responsibility for the person referred must take all reasonable steps to ensure that the person is offered an appointment in accordance with paragraphs (3) to (5) .
3
The appointment must be with a specialist at a suitable health service provider other than the relevant provider.
4
The appointment must be at an earlier date than the appointment the person would have had if they had continued to wait for an appointment at the relevant provider.
5
If there is more than one suitable health service provider the patient must be offered an appointment falling within paragraphs (2) and (3) at more than one such provider.
6
Paragraph (2) does not apply if the person —
a
was made aware of the consequences of not attending appointments and did not attend an appointment made by the relevant provider in response to the referral; or
b
chose not to attend an appointment within the relevant period.
Advice and assistance
54
1
Each CCG must —
a
establish a service for the purpose of providing advice and assistance to persons —
i
for whom it has responsibility, and
ii
who meet the conditions set out in regulation 47(2) and (3) or 53(1)(a) to (c) (“relevant persons”);
b
publish the name and contact details of the service; and
c
take reasonable steps to communicate the name and contact details of that service to any relevant persons for which it has responsibility.
2
Each CCG must make arrangements to ensure that any health service provider providing services to a relevant person pursuant to a commissioning contract with that CCG —
a
establishes a service for the purpose of providing advice and assistance to relevant persons referred to the provider;
b
publishes the name and contact details of that service; and
c
takes reasonable steps to communicate the name and contact details of that service to any relevant persons referred to the provider for whom the relevant body is responsible.
Transitional provision
55
1
Where, before the relevant date —
a
a Primary Care Trust or Strategic Health Authority is responsible for a person pursuant to direction 1(4) or (5) of the Waiting Times Directions;
b
that person falls within direction 3(2) and (3) of the Waiting Times Directions, having been referred before the relevant date,
the relevant body that has responsibility for that person on and after the relevant date must comply with paragraph (2).
2
The relevant body must ensure that, in respect of a person specified in paragraph (1), it complies with directions 3 to 6 of the Waiting Times Directions in respect of the person as if —
a
the Waiting Times Directions continued in force on and after the relevant date;
b
references to “Primary Care Trust” or “Strategic Health Authority” in those directions, and any relevant guidance referred to in those directions, were a reference to the relevant body that has responsibility for that person on and after the relevant date; and
c
the relevant body had had responsibility for that person from the date on which that person was referred for the purpose of calculating any periods of time referred to in those directions or that guidance.
3
Where, before the relevant date —
a
a Primary Care Trust or Strategic Health Authority is responsible for a person pursuant to direction 1(4) or (5) of the Waiting Times Directions; and
b
that person falls within direction 9(1)(a), (b) and (c) of the Waiting Times Directions, having been referred before the relevant date,
the relevant body that has responsibility for that person on and after the relevant date must comply with paragraph (4).
4
The relevant body must ensure that, in respect of a person specified in paragraph (3), it complies with directions 9 and 10 of the Waiting Times Directions in respect of the person as if —
a
the Waiting Times Directions continued in force on and after the relevant date;
b
references to “Primary Care Trust” or “Strategic Health Authority” in those directions, and any relevant guidance referred to in those directions, were a reference to the relevant body that has responsibility for that person on and after the relevant date; and
c
the relevant body had had responsibility for that person from the date on which that person was referred for the purpose of calculating any periods of time referred to in those directions or that guidance.
PART 10 Standing rules: funding of therapies for Multiple Sclerosis
Scheme for the funding of certain disease modifying therapies for Multiples Sclerosis
56
1
A relevant body must, in exercising its functions under or by virtue of section 3(1), 3A(1) or 3B of the 2006 Act, ensure that —
a
a scheme product is supplied or administered in accordance with the scheme to a scheme patient,
b
a scheme product continues to be supplied or administered in accordance with the scheme to a scheme patient where such a patient was receiving such a course of treatment immediately before the relevant date unless the patient’s consultant has determined, in consultation with the scheme patient, that the scheme product is no longer clinically appropriate;
c
a scheme product is supplied or administered to a patient with multiple sclerosis for the purpose of that person’s treatment for that condition where that patient —
i
is not a scheme patient, but
ii
was, on 4th February 2002, and is, immediately before the relevant date, receiving such a course of treatment for that condition.
2
In this Part —
“scheme” means the arrangement between the Department of Health (England), the National Assembly for Wales, the Scottish Ministers, the Northern Ireland Department of Health, Social Security and Public Safety, Biogen Idec Inc., Bayer PLC, Merck Serono Limited, and Teva Pharmaceutical Industries Limited together with Aventis Pharma Limited, dated 1st February 2002, for the supply and administration of products for the treatment of multiple sclerosis ;
“scheme patient” means a patient with multiple sclerosis who is eligible to receive treatment under the scheme and who consents to receive such treatment;
“scheme product” means —
Interferon beta-1a: Avonex and Rebif (22mg and 44mg);
Interferon beta – 1b: Betaferon; or
Glatiramer acetate: Copaxone,
which is given for the treatment of multiple sclerosis and which is manufactured by a company that is a party to the scheme.
PART 11 Financial duties of a relevant body in relation to administration
Matters relating to administration in revenue resource use by a relevant body
57
1
Subject to paragraph (3) , for the purposes of section 223E(3) and section 223J(3) of the Act (powers to direct that revenue resource use by a relevant body in a financial year attributable to prescribed administrative matters does not exceed specified amounts), the following matters relating to administration are prescribed —
a
the payment of remuneration, national insurance, pensions, allowances or gratuities to the persons listed in paragraph (2) , insofar as the payment is attributable to any of the activities referred to in paragraph (1) (d) or (e) ;
b
the provision of education and training for the persons listed in paragraph (2) , where the education or training relates to any of the activities referred to in paragraph (1) (d) or (e) ;
c
securing the provision of goods, facilities or services for use by a relevant body in the exercise of its functions , including costs relating to —
i
accommodation, including the cost of rent, rates, utilities and maintenance;
ii
information technology, including telecommunications and computer maintenance;
iii
office services, including stationery, postage and rental of office equipment;
iv
management consultancy;
v
services to support arranging the provision of the services referred to in paragraph (3) ; and
vi
depreciation, amortisation, impairment, write-off or other alterations in the value of assets;
d
the costs incurred in the exercise of —
i
the Board’s functions in relation to CCGs, or
ii
a relevant body’s functions of arranging for the provision of the services referred to in paragraph (3) ,
including costs which are incurred in the carrying out of activities designed to improve the exercise of those functions, but excluding costs incurred in relation to activities whose sole or primary purpose is to improve the quality of those services;
e
the costs, other than those referred to in paragraph (1)(a) to (d), which are incurred in the carrying out of the following administrative or support activities —
i
human resources,
ii
finance,
iii
corporate, business and administrative support;
iv
management,
v
governance,
vi
formulation and monitoring of policy and strategy in relation to the exercise of functions,
vii
administration of grant payments,
viii
legal and regulatory advice,
ix
marketing and communications, and
x
programme and project management.
2
The persons referred to in paragraph (1)(a) and (b) are —
a
employees of a relevant body;
b
non-executive members of the Board;
c
members of a CCG governing body;
d
members of committees of the Board, a CCG or a CCG governing body and members of sub-committees of those committees;
e
members of a CCG who are individuals; and
f
individuals authorised to act on behalf of a member of a CCG in dealings between the member and the CCG.
3
The prescribed matters relating to administration do not include —
a
payments made to persons providing services as part of the health service under arrangements made by a relevant body, in respect of the provision of such services pursuant to those arrangements; and
b
payments made by a relevant body under or by virtue of section 12A of the 2006 Act.
Signed by authority of the Secretary of State for Health.
Earl Howe
Parliamentary Under-Secretary of State,
Department of Health
3rd December 2012
SCHEDULE 1
Additional persons for whom a CCG has responsibility
Regulation 4
1
In this Schedule —
“care home” and “children’s home” have the same meaning as in the Care Standards Act 2000 ;
“child” means a person under the age of 18;
“continuing care” means care provided over an extended period of time to a person to meet physical or mental health needs which have arisen as the result of illness;
“independent hospital” means a hospital as defined in section 275(1) of the 2006 Act (interpretation), that is not a health service hospital as defined there;
“local authority” means a county council, a district council for an area for which there is no county council, a London borough council, the Common Council of the City of London, or the Council of the Isles of Scilly;
“planned service” means any service whose provision is planned and arranged by a CCG as part of the health service in response to the results of an assessment of a person’s physical or mental health needs and which is intended to bring about or promote a specific outcome in relation to those needs.
2
The list of persons referred to in regulation 4(1) is as follows —
a
every person present in the CCG’s area, in relation to the provision of ambulance services or accident and emergency services, whether provided at a hospital accident and emergency department, a minor injuries unit, a walk-in centre or elsewhere (but excluding any services provided after the person has been accepted as an in-patient, or at an out-patient appointment);
b
every person aged 18 or over who falls within paragraph 3, in relation to the provision of the accommodation or services referred to in paragraph 3(b);
c
every child who falls within paragraph 4;
d
every person who falls within paragraph 5 in relation to the provision of the accommodation or services referred to in paragraph 5(b);
e
every person who falls within paragraph 6 in relation to the provision of the accommodation or services referred to in paragraph 6(b);
f
every child who falls within paragraph 7 in relation to the provision of the accommodation or services referred to in paragraph 7(b);
g
every child who falls within paragraph 8;
h
every person present in the CCG’s area who is resident outside the United Kingdom and not provided with primary medical services by a member of any CCG;
i
every person resident in Scotland, Wales or Northern Ireland and present in the CCG’s area who is a qualifying patient within the meaning of section 130C of the 1983 Act (section 130A:supplemental), and not provided with primary medical services by a member of any CCG;
j
every person who is a qualifying patient within the meaning of section 130C of the 1983 Act and liable to be detained under that Act in a hospital or registered establishment (within the meaning of that Act) in the CCG’s area.
3
A person falls within this paragraph if —
a
the CCG has made an arrangement in the exercise of its commissioning functions (by itself or jointly with a local authority) by virtue of which the person is to be provided with services to meet his or her continuing care needs,
b
those services consist of or include the provision of the following accommodation and services to meet the person’s continuing care needs —
i
accommodation in a care home or independent hospital situated in the area of another CCG, and
ii
at least one planned service (other than a service consisting only of NHS-funded nursing care) which is connected to the provision of such accommodation (whether or not the accommodation is arranged by the CCG referred to in sub-paragraph (a)),
c
the person is resident in that accommodation and continues to need that planned service (or those planned services), and
d
the person would not be a person for whom the CCG is responsible under section 3(1A)(a) of the 2006 Act.
4
1
A child falls within this paragraph if both of sub-paragraphs (2) and (3) apply to the child.
2
This sub-paragraph applies to a child if any of the following is the case —
a
the child is looked after by a local authority within the meaning of section 22 of the Children Act 1989 (general duty of local authority in relation to children looked after by them), other than by way of being accommodated in a secure children’s home in respect of which the National Health Service Commissioning Board must arrange for the provision of services to children detained there ;
b
the child is a relevant child within the meaning of section 23A of that Act (the responsible authority and relevant children);
c
the child is a person to whom section 24(1A) or (1B) of that Act (persons qualifying for advice and assistance) applies;
d
the child is provided with accommodation at a school to which he or she is admitted in accordance with a statement of special educational needs made under section 324 of the Education Act 1996 (statement of special educational needs); or
e
the child requires accommodation in a care home, a children’s home or an independent hospital to meet the child’s continuing care needs.
3
This sub-paragraph applies to a child if —
a
the child is provided with —
i
services which consist of or include the provision of accommodation situated in the area of another CCG or of a Local Health Board, under arrangements made by the CCG in the exercise of its commissioning functions (by itself or jointly with a local authority), or
ii
such services under arrangements made by the local authority and immediately before those arrangements were made the CCG was responsible for the child under section 3(1A) of the 2006 Act; and
b
the child is both —
i
resident in that accommodation, and
ii
would not be a person for whom the CCG is responsible under section 3(1A)(a) of the 2006 Act.
5
A person falls within this paragraph if —
a
the CCG has made an arrangement in the exercise of its commissioning functions (by itself or jointly with a local authority) by virtue of which immediately before attaining 18 the person was provided with services to meet his or her continuing care needs;
b
those services consist of or include the provision of the following accommodation and services to meet the person’s continuing care needs —
i
accommodation in a care home, a children’s home or an independent hospital situated in the area of another CCG, and
ii
nursing and another service which is a planned service, as part of the health service to meet his or her continuing care needs;
c
the person is resident in that accommodation and continues to need that planned service (or those planned services), and
d
the person would not be a person for whom the CCG is responsible under section 3(1A)(a) of the 2006 Act.
6
A person falls within this paragraph if —
a
a Primary Care Trust has made an arrangement before the relevant date in the exercise of its functions by virtue of regulation 3 of the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements)(England) Regulations 2002 by virtue of which the person was provided with services to meet his or her continuing care needs;
b
the rights and liabilities under that arrangement are transferred to the CCG by virtue of a scheme made under section 300 of the 2012 Act (transfer schemes);
c
the person continues to need the provision of the following accommodation and services to meet the person’s continuing care needs —
i
accommodation in a care home or independent hospital situated in the area of another CCG, and
ii
at least one planned service (other than a service consisting only of NHS-funded nursing care) which is connected to the provision of such accommodation (whether or not the accommodation is arranged by the CCG); and
d
the person would not be a person for whom the CCG is responsible under section 3(1A)(a) of the 2006 Act.
7
A child falls within this paragraph if —
a
a Primary Care Trust has made an arrangement on or before 31st March 2013 in the exercise of its functions by virtue of regulation 3 of the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002 by virtue of which the child was provided with services to meet his or her continuing care needs;
b
the rights and liabilities under that arrangement are transferred to the CCG by virtue of a scheme made under section 300 of the 2012 Act;
c
the child continues to need services consisting of or including the provision of accommodation in a care home, a children’s home or an independent hospital situated in the area of another CCG and nursing and another service which is a planned service as part of the health service to meet his or her continuing care needs; and
d
the child would not be a person for whom the CCG is responsible under section 3(1A)(a) of the 2006 Act.
8
1
A child falls within this paragraph if —
a
a local authority has made an arrangement before the relevant date by virtue of which the child is provided with accommodation at a school in the area of another CCG or a Local Health Board, to which the child is admitted in accordance with a statement of special educational needs made under section 324 of the Education Act 1996;
b
immediately before the child was accommodated at that school the child was either —
i
provided with primary medical services by a person who is now a member of the CCG; or
ii
usually resident in the area of the CCG and not provided with primary medical services by a person who is now a member of the CCG; and
c
the child would not be a person for whom the CCG is responsible under section 3(1A)(a) of the 2006 Act.
SCHEDULE 2
Prescribed dental services
Regulation 6
1
Oral surgery.
2
Restorative dentistry.
3
Paedodontic/paediatric dentistry.
4
Orthodontics.
5
Oral and maxillofacial surgery.
6
Endodontics.
7
Periodontics.
8
Prosthodontics.
9
Oral medicine.
10
Oral microbiology.
11
Oral and maxillofacial pathology.
12
Dental and maxillofacial radiology.
13
Special care dentistry.
SCHEDULE 3
Services in respect of persons detained in specified accommodation
Regulation 10
PART 1 Secure children’s homes to which regulation 10(2)(b) does not apply
1
Atkinson Secure Children’s Home
2
Beechfield Secure Children’s Home
3
Clare Lodge Secure Children’s Home
4
Kyloe Secure Children’s Home
5
Lansdowne Secure Children’s Home
6
Leverton Secure Children’s Home
7
St. Catherine’s Secure Children’s Home
PART 2 Secure training centres and immigration removal centres
Table 1 – Secure training centres
Name of centre Specified date
Hassockfield Secure Training Centre From 1st April 2014 Medway Secure Training Centre From 1st April 2014 Rainsbrook Secure Training Centre From 1st April 2014
Table 2 – Immigration removal centres
Name of centre Specified Date
Brook House Immigration Removal Centre From 1st April 2014 Campsfield House Immigration Removal Centre From 1st April 2014 Colnbrook Immigration Removal Centre From 1st April 2013 Dover Immigration Removal Centre From 1st April 2013 Harmondsworth Immigration Removal Centre From 1st April 2013 Haslar Immigration Removal Centre From 1st April 2013 Morton Hall Immigration Removal Centre From 1st April 2013 Tinsley House Immigration Removal Centre From 1st April 2014 Yarls Wood Immigration Removal Centre From 1st April 2013
SCHEDULE 4
Services for rare and very rare conditions
Regulations 7, 10 and 11
Interpretation
1
For the purposes of this Schedule —
a
an individual is a child if they have not yet attained the age of 18 years old;
b
an individual is a young person if they are aged 13 years old or over but have not yet attained the age of 21 years old; and
c
an individual is an adult if they are aged 18 years old or over,
unless, for the purposes of a service specified in this Schedule, the Board, or the person providing such a service pursuant to a commissioning contract with the Board, considers on clinical grounds that an individual should otherwise be treated as a child, a young person or an adult.
The services
2
Adult ataxia telangiectasia services.
3
Adult congenital heart disease services.
4
Adult highly specialist pain management services.
5
Adult highly specialist respiratory services.
6
Adult highly specialist rheumatology services.
7
Adult secure mental health services.
8
Adult specialist cardiac services.
9
Adult specialist eating disorder services.
10
Adult specialist endocrinology services.
11
Adult specialist intestinal failure services.
12
Adult specialist neurosciences services.
13
Adult specialist ophthalmology services.
14
Adult specialist orthopaedic services.
15
Adult specialist pulmonary hypertension services.
16
Adult specialist renal services.
17
Adult specialist services for patients infected with HIV.
18
Adult specialist vascular services.
19
Adult thoracic surgery services.
20
Alkaptonuria service.
21
Alström syndrome service.
22
Ataxia telangiectasia service for children.
23
Autoimmune paediatric gut syndromes service.
24
Autologous intestinal reconstruction service for adults.
25
Bardet-Biedl syndrome service.
26
Barth syndrome service.
27
Beckwith-Wiedemann syndrome with macroglossia service.
28
Behcet’s syndrome service.
29
Bladder exstrophy service.
30
Blood and marrow transplantation services.
31
Bone anchored hearing aid services.
32
Breast radiotherapy injury rehabilitation service.
33
Child and adolescent mental health services – Tier 4.
34
Choriocarcinoma service.
35
Chronic pulmonary aspergillosis service.
36
Cleft lip and palate services.
37
Cochlear implantation services.
38
Complex childhood osteogenesis imperfecta service.
39
Complex Ehlers Danlos syndrome service.
40
Complex neurofibromatosis type 1 service.
41
Complex spinal surgery services.
42
Complex tracheal disease service.
43
Congenital hyperinsulinism service.
44
Craniofacial service.
45
Cryopyrin associated periodic syndrome service.
46
Cystic fibrosis services.
47
Diagnostic service for amyloidosis.
48
Diagnostic service for primary ciliary dyskinesia.
49
Diagnostic service for rare neuromuscular disorders.
50
Encapsulating peritoneal sclerosis treatment service.
51
Epidermolysis bullosa service.
52
Extra corporeal membrane oxygenation service for adults.
53
Extra corporeal membrane oxygenation service for neonates, infants and children with respiratory failure.
54
Ex-vivo partial nephrectomy service.
55
Fetal medicine services.
56
Gender identity development service for children and adolescents.
57
Gender identity disorder services.
58
Heart and lung transplantation service (including bridge to transplant using mechanical circulatory support).
59
Highly specialist adult urinary and gynaecological surgery services.
60
Highly specialist allergy services.
61
Highly specialist colorectal surgery services.
62
Highly specialist dermatology services.
63
Highly specialist metabolic disorder services.
64
Highly specialist pain management services for children and young people.
65
Highly specialist palliative care services for children and young people.
66
Highly specialist services for adults with infectious diseases.
67
Hyperbaric oxygen treatment services.
68
Insulin-resistant diabetes service.
69
Islet transplantation service.
70
Liver transplantation service.
71
Lymphangioleiomyomatosis service.
72
Lysosomal storage disorder service.
73
Major trauma services.
74
McArdle’s disease service.
75
Mental health service for deaf children and adolescents.
76
Middle ear implantable hearing aid services.
77
Neurofibromatosis type 2 service.
78
Neuromyelitis optica service.
79
Neuropsychiatry services.
80
Ocular oncology service.
81
Ophthalmic pathology service.
82
Osteo-odonto-keratoprosthesis service for corneal blindness.
83
Paediatric and perinatal post mortem services.
84
Paediatric cardiac services.
85
Paediatric intestinal pseudo-obstructive disorders service.
86
Pancreas transplantation service.
87
Paroxysmal nocturnal haemoglobinuria service.
88
Positron Emission Tomography – Computed Tomography services.
89
Primary ciliary dyskinesia management service.
90
Primary malignant bone tumours service.
91
Proton beam therapy service.
92
Pseudomyxoma peritonei service.
93
Pulmonary hypertension service for children.
94
Pulmonary thromboendarterectomy service.
95
Radiotherapy services.
96
Rare mitochondrial disorders service.
97
Reconstructive surgery service for adolescents with congenital malformation of the female genital tract.
98
Retinoblastoma service.
99
Secure forensic mental health service for young people.
100
Severe acute porphyria service.
101
Severe combined immunodeficiency and related disorders service.
102
Severe intestinal failure service.
103
Severe obsessive compulsive disorder and body dysmorphic disorder service.
104
Small bowel transplantation service.
105
Specialist burn care services.
106
Specialist cancer services.
107
Specialist cancer services for children and young people.
108
Specialist dentistry services for children and young people.
109
Specialist ear, nose and throat services for children and young people.
110
Specialist endocrinology and diabetes services for children and young people.
111
Specialist gastroenterology, hepatology and nutritional support services for children and young people.
112
Specialist genetic services.
113
Specialist gynaecology services for children and young people.
114
Specialist haematology services for children and young people.
115
Specialist haemoglobinopathy services.
116
Specialist immunology services for patients with deficient immune systems.
117
Specialist mental health services for deaf adults.
118
Specialist morbid obesity services.
119
Specialist neonatal care services.
120
Specialist neuroscience services for children and young people.
121
Specialist ophthalmology services for children and young people.
122
Specialist orthopaedic surgery services for children and young people.
123
Specialist paediatric intensive care services.
124
Specialist paediatric liver disease service.
125
Specialist perinatal mental health services.
126
Specialist plastic surgery services for children and young people.
127
Specialist rehabilitation services for patients with highly complex needs.
128
Specialist renal services for children and young people.
129
Specialist respiratory services for children and young people.
130
Specialist rheumatology services for children and young people.
131
Specialist services for children and young people with infectious diseases.
132
Specialist services for complex liver, biliary and pancreatic diseases in adults.
133
Specialist services for haemophilia and other related bleeding disorders.
134
Specialist services for severe personality disorder in adults.
135
Specialist services to support patients with complex physical disabilities.
136
Specialist surgery for children and young people.
137
Specialist urology services for children and young people.
138
Spinal cord injury services.
139
Stem cell transplantation service for juvenile idiopathic arthritis and related connective tissue disorders.
140
Stickler syndrome diagnostic service.
141
Vein of Galen malformation service.
142
Veterans’ post traumatic stress disorder programme.
143
Wolfram syndrome service.
144
Xeroderma pigmentosum service.
SCHEDULE 5
Persons disqualified from being a chair, CCG member or social services authority member of a review panel
Regulation 25(3)
1
A Member of Parliament, Member of the European Parliament or member of the London Assembly.
2
1
An individual who, by arrangement with a CCG, provides it with any service or facility in order to support that CCG in discharging its commissioning functions, or an employee or member (including shareholder) of, or a partner in, a body which does so.
2
The services and facilities mentioned in sub-paragraph (1) do not include services commissioned by a CCG in the exercise of its commissioning functions.
3
A person who, within the period of five years immediately preceding the date of the proposed appointment, has been convicted —
a
in the United Kingdom of any offence; or
b
outside the United Kingdom of an offence which, if committed in any part of the United Kingdom, would constitute a criminal offence in that part,
and, in either case, the final outcome of the proceedings was a sentence of imprisonment (whether suspended or not) for a period of not less than three months without the option of a fine.
4
A person who is subject to a bankruptcy restrictions order or an interim bankruptcy restrictions order under Schedule 4A to the Insolvency Act 1986 , sections 56A to 56K of the Bankruptcy (Scotland) Act 1985 or Schedule 2A to the Insolvency (Northern Ireland) Order 1989 (which relate to bankruptcy restrictions orders and undertakings).
5
1
A person who has been dismissed within the period of five years immediately preceding the date of the proposed appointment, otherwise than because of redundancy, from paid employment by any of the following —
a
the Board;
b
a CCG;
c
a social services authority;
d
a Strategic Health Authority ;
e
a Primary Care Trust ;
f
an NHS trust ;
g
an NHS foundation trust;
h
a Special Health Authority ;
i
a Local Health Board established under section 11 of the National Health Service (Wales) Act 2006;
j
a Health Board or Special Health Board constituted under the National Health Service (Scotland) Act 1978 ;
k
a Scottish NHS trust established under section 12A of the National Health Service (Scotland) Act 1978 ;
l
a Health and Social Services Board constituted under the Health and Personal Social Services (Northern Ireland) Order 1972 ;
m
the Care Quality Commission established by section 1 of the Health and Social Care Act 2008 ;
n
the Health Protection Agency established by section 1 of the Health Protection Agency Act 2004 ;
o
Monitor ;
p
the Wales Centre for Health established by section 2 of the Health (Wales) Act 2003 ;
q
the Common Services Agency for the Scottish Health Service constituted by section 10 of the National Health Service (Scotland) Act 1978 ;
r
Healthcare Improvement Scotland, established by section 10A of the National Health Service (Scotland) Act 1978 ;
s
the Scottish Dental Practice Board constituted under section 4 of the National Health Service (Scotland) Act 1978 ;
t
the Northern Ireland Central Services Agency for the Health and Social Services established under the Health and Personal Social Services (Northern Ireland) Order 1972 ;
u
the Regional Health and Social Care Board established under section 7 of the Health and Social Care (Reform) Act (Northern Ireland) 2009 ;
v
the Regional Agency for Public Health and Wellbeing established under section 12 of the Health and Social Care (Reform) Act (Northern Ireland) 2009;
w
the Regional Business Services Organisation established under section 14 of the Health and Social Care (Reform) Act (Northern Ireland) 2009;
x
Health and Social Care trusts (formerly known as Health and Social Services trusts), established under the Health and Personal Social Services (Northern Ireland) Order 1991 ;
y
Special health and social care agencies (formerly known as Special health and social services agencies), established under the Health and Personal Social Services (Special Agencies) (Northern Ireland) Order 1990 ;
z
the Patient and Client Council established under section 16 of the Health and Social Care (Reform) Act (Northern Ireland) 2009; and
aa
the Health and Social Care Regulation and Quality Improvement Authority (formerly known as The Northern Ireland Health and Personal Social Services Regulation and Improvement Authority), established under the Health and Personal Social Services (Quality Improvement and Regulation) (Northern Ireland) Order 2003 .
2
For the purposes of paragraph (1) , a person is not to be treated as having been in paid employment by reason only of having been —
a
in the case of an NHS foundation trust, the chairman, a governor or a non-executive director of the trust;
b
in the case of a CCG, the chair or a member of the governing body of that CCG; or
c
in the case of any other NHS body, the chairman or chair, or a member or a director of the NHS body in question.
6
A person’s term of office as the chairman or chair or as a member, director or governor of any of the bodies specified in paragraph 5(1) has been terminated on the grounds —
a
that it was not in the interests of, or conducive to the good management of, that body that they should continue to hold office;
b
that it was not in the interests of the health service that they should continue to hold office;
c
of non-attendance at meetings;
d
of non-disclosure of a pecuniary interest;
e
of misbehaviour, misconduct or failure to carry out the person’s duties.
7
A health care professional or other professional person who has at any time been subject to an investigation or proceedings, by any body which regulates or licenses the profession concerned (“the regulatory body”), in connection with the person’s fitness to practise or any alleged fraud, the final outcome of which was —
a
the person’s suspension from a register held by the regulatory body, where that suspension has not been terminated;
b
the person’s erasure from such a register, where the person has not been restored to the register;
c
a decision by the regulatory body which had the effect of preventing the person from practising the profession in question, where that decision has not been superseded; or
d
a decision by the regulatory body which had the effect of imposing conditions on the person’s practice of the profession in question, where those conditions have not been lifted.
8
A person who is subject to —
a
a disqualification order or disqualification undertaking under the Company Directors Disqualification Act 1986 or the Company Directors Disqualification (Northern Ireland) Order 2002 ; or
b
an order made under section 429(2) of the Insolvency Act 1986 (disabilities on revocation of administration order against an individual).
9
A person who has at any time been removed from the office of charity trustee or trustee for a charity by an order made by the Charity Commissioners for England and Wales , the Charity Commission, the Charity Commission for Northern Ireland or the High Court, on the grounds of misconduct or mismanagement in the administration of the charity for which the person was responsible, to which the person was privy, or which the person by their conduct contributed to or facilitated.
10
A person who has at any time been removed, or is suspended, from the management or control of any body under —
a
section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (powers of the Court of Session to deal with the management of charities); or
b
section 34(5)(e) or (ea) of the Charities and Trustee Investment (Scotland) Act 2005 (powers of the Court of Session to deal with the management of charities). |
The Isle of Wight National Health Service Trust (Establishment) Order 2012
The Secretary of State for Health makes this Order following the completion of the consultation prescribed under section 25(3) of the National Health Service Act 2006 .
Citation, commencement and interpretation
1
1
This Order may be cited as the Isle of Wight National Health Service Trust (Establishment) Order 2012 and comes into force on 1st April 2012.
2
In this Order —
“ the Act ” means the National Health Service Act 2006;
“community health services” means any service which the Secretary of State has a duty to provide under section 3(1)(d) or (e) of, or paragraph 1 or 8 of Schedule 1 to, the Act and any service which the Secretary of State may provide under paragraph 2 or 7A of that Schedule;
“the trust” means the National Health Service trust established by article 2.
Establishment and name of the trust
2
There is established a National Health Service trust which shall be called the Isle of Wight National Health Service Trust.
Nature and functions of the trust
3
The trust’s functions shall be to provide goods and services, namely hospital accommodation and services, community health services and ambulance and associated transport services for the purposes of the health service.
Directors of the trust
4
1
The trust shall have, in addition to the chairman, 5 executive directors and 5 non-executive directors.
2
If the Secretary of State suspends the chairman, or a non-executive director of the trust, the number of non-executive directors of the trust shall increase during the period of suspension by the number of persons so suspended.
Operational date and accounting date of the trust
5
1
The operational date of the trust shall be 1st April 2012.
2
The accounting date of the trust shall be 31st March.
Signed by authority of the Secretary of State for Health.
Simon Burns
Minister of State,
Department of Health
10th March 2012 |
The Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012
In accordance with section 124(9)(b) of that Act, a draft of these Regulations was laid before and approved by a resolution of each House of Parliament.
Citation, commencement and expiry
1
1
These Regulations may be cited as the Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012.
2
These Regulations come into force on the seventh day after the day on which they are made.
3
These Regulations cease to have effect at the end of the period of seven years beginning with the day on which these Regulations come into force.
Interpretation
2
1
In these Regulations “the authority-to-carry scheme” means the Security and Travel Bans Authority to Carry Scheme 2012 made by the Secretary of State on the day on which these Regulations are made.
2
A reference in these Regulations to “the court” is a reference —
a
in England and Wales, to a county court;
b
in Scotland, to the sheriff; and
c
in Northern Ireland, to a county court.
3
But —
a
a county court may transfer proceedings under these Regulations to the High Court; and
b
the sheriff may transfer proceedings under these Regulations to the Court of Session.
Requirement to pay a penalty
3
1
These Regulations apply if a person (“a carrier”) brings a passenger to the United Kingdom and —
a
the carrier was required by the authority-to-carry scheme to seek authority under the scheme to carry the passenger; and
b
the carrier did not seek authority before the journey to the United Kingdom commenced, as required under the scheme or was refused authority under the scheme.
2
The Secretary of State may require the carrier to pay a penalty of an amount not exceeding £10,000.
3
The penalty shall be payable to the Secretary of State on demand.
4
No penalty shall be payable where the carrier shows that the carrier has a reasonable excuse for any liability for a penalty under these Regulations.
Notification
4
1
If the Secretary of State decides to require a carrier to pay a penalty under these Regulations, the Secretary of State must notify the carrier of the decision.
2
Such a notice (a “penalty notice”) must —
a
state the Secretary of State’s reasons for deciding to require the carrier to pay a penalty;
b
state the amount of the penalty;
c
specify the date before which, and the manner in which, the penalty must be paid;
d
include an explanation of the steps that the carrier may take if the carrier objects to the penalty; and
e
include an explanation of the steps that the Secretary of State may take to recover any unpaid penalty.
Objection
5
1
Where a carrier on whom a penalty notice is served objects to the imposition of the penalty, the carrier may give a notice to the Secretary of State (a “notice of objection”).
2
A notice of objection must —
a
be in writing;
b
give the objector’s reasons; and
c
be given before the end of the period of 28 days beginning with the day on which the person was served with the penalty notice in respect of the penalty.
3
Where the Secretary of State receives a notice of objection, the Secretary of State shall consider it and —
a
cancel the penalty;
b
reduce the penalty;
c
increase the penalty; or
d
determine to take no action.
4
Where the Secretary of State considers a notice of objection, the Secretary of State shall —
a
inform the objector of the decision before the end of the period of 70 days beginning with the day on which the objector was served with the penalty notice in respect of the penalty, or such longer period as the Secretary of State may agree with the objector;
b
if the Secretary of State increases the penalty, issue a new penalty notice under regulation 7; and
c
if the Secretary of State reduces the penalty, notify the objector of the reduced amount.
Enforcement
6
1
Any sum payable to the Secretary of State as a penalty under these Regulations may be recovered by the Secretary of State as a debt due to the Secretary of State.
2
In proceedings for enforcement of a penalty under paragraph (1), no question may be raised as to —
a
the validity of the penalty;
b
the application of the defence in regulation 3(4); or
c
the amount of the penalty.
3
Money paid to the Secretary of State by way of penalty shall be paid into the Consolidated Fund.
Appeal
7
1
A carrier may appeal to the court against a decision to require the carrier to pay a penalty under these Regulations.
2
On an appeal, the court may —
a
allow the appeal and cancel the penalty;
b
allow the appeal and reduce the penalty; or
c
dismiss the appeal.
3
An appeal —
a
shall be a re-hearing of the Secretary of State’s decision to impose a penalty; and
b
may be determined having regard to matters of which the Secretary of State was unaware.
4
Subsection (3)(a) has effect despite any provision of rules of court.
5
An appeal must be brought within the period of 28 days beginning with —
a
the date specified in the penalty notice as the date upon which it is given; or
b
if the carrier gives a notice of objection and the Secretary of State reduces the penalty, the date specified in the notice of reduction as the date upon which it is given; or
c
if the carrier gives a notice of objection and the Secretary of State determines to take no action, the date specified in the notice of that determination as the date upon which it is given.
6
An appeal may be brought by a carrier under this regulation against a decision to require the carrier to pay a penalty whether or not the carrier has given notice of objection under regulation 5.
Service of documents
8
1
This regulation applies where a document is to be issued to or served on a person for the purpose of these Regulations or in the course of proceedings under regulation 6(1).
2
A document may be issued or served —
a
in person;
b
by post; or
c
by facsimile transmission or other means of electronic communication.
3
Where a document is issued or served by facsimile to the last known business facsimile number of a person, it shall be taken to have been received by that person on the day on which it was sent.
4
Where a document is issued or served on a person outside the United Kingdom by post, it shall be taken to have been received by that person on the fourth day after the day on which it was sent.
James Brokenshire
Parliamentary Under-Secretary of State
Home Office
18th July 2012 |
The Port Security (Port of Workington) Designation Order 2012
The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to port security, measures relating to the safety of ships and the health and safety of persons on them, and maritime transport .
Citation and commencement
1
This Order may be cited as the Port Security (Port of Workington) Designation Order 2012 and comes into force on 19th November 2012.
Port boundary
2
1
For the purposes of regulation 3(2) of the Port Security Regulations 2009 the boundary of the Port of Workington is delineated by the red line on the plan in Schedule 1.
2
Where the boundary runs along a beach or foreshore, the port only includes the land on that beach or foreshore which is below the level of mean high water springs.
The Workington Port Security Authority
3
1
For the purposes of the Port Security Regulations 2009, the Workington Port Security Authority is designated as the port security authority for the port of Workington.
2
Schedule 2 has effect with respect to the Workington Port Security Authority.
Review
4
1
The Secretary of State must from time to time —
a
carry out a review of this Order,
b
set out the conclusions of the review in a report, and
c
publish the report.
2
In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how Directive 2005/65/ EC of the European Parliament and of the Council of 26th October 2005 (which is implemented by means of the Port Security Regulations 2009 ) is implemented in other member States.
3
The report must in particular —
a
set out the objectives intended to be achieved by the regulatory system established by those Regulations and this Order,
b
assess the extent to which those objectives are achieved, and
c
assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
4
The first report under this article must be published before 1 st January 2014.
5
Reports under this article are afterwards to be published at intervals not exceeding five years.
Signed by authority of the Secretary of State for Transport
Stephen Hammond
Parliamentary Under Secretary of State
Department for Transport
15th October 2012
SCHEDULE 1
Boundary of the Port of Workington
Article 2(1)
SCHEDULE 2
The Workington Port Security Authority
Article 3(2)
Members
1
1
The Workington Port Security Authority (in this Schedule called “the Authority”) is to consist of three or more members, each of them appointed by the Secretary of State.
2
Subject to the following provisions of this paragraph, each member of the Authority —
a
holds and vacates office in accordance with the terms of the member’s appointment; and
b
on ceasing to be a member is eligible for re-appointment.
3
A member of the Authority may resign the office of member by giving notice to that effect to the Secretary of State and will cease to hold office —
a
on the date specified for the purpose in the notice; or
b
if that date falls before the expiration of the period of 21 days beginning with the date on which the notice is served, on the date immediately following the expiration of that period.
4
The Secretary of State may give notice to a member to the effect that the member will cease to hold office on a date specified for the purpose in the notice.
5
A notice under subparagraph (4) may be given only in one or more of the following circumstances —
a
the member has failed to attend four or more consecutive meetings of the Authority without the permission of the Secretary of State;
b
the member has a financial interest and it appears to the Secretary of State that the interest is likely to influence or to be capable of being seen as influencing the performance of the member’s functions;
c
the member has been adjudged bankrupt, the member’s estate has been sequestrated or the member has made a composition with creditors or granted a trust deed for creditors;
d
there has been misconduct on the part of the member relevant to his or her position as a member of the Authority; or
e
the member is unable or unfit to perform the functions of the office.
6
It is the duty of every member of the Authority, so far as is reasonably practicable, to attend all meetings of the Authority.
7
If it be impracticable for a member to attend a meeting, the member must appoint another member to act as a proxy.
8
A proxy must speak and vote at the meeting on behalf of the absent member as that member may direct.
Proceedings of the Authority
2
1
The Authority must hold at least two meetings in any 12-month period.
2
Subject to the provisions of this Order, it is for the Authority to regulate its own procedure (including quorum).
3
The Authority must appoint one of its members as chair of the Authority.
4
The person appointed remains the chair of the Authority until that person —
a
is replaced as chair by another member; or
b
ceases to be a member of the Authority, in which case it becomes the duty of the Authority to appoint a new chair as soon as reasonably practicable.
5
The validity of any proceedings of the Authority is not affected by a vacancy amongst the members or by a defect in the appointment of a member.
6
Other than in exceptional circumstances which require a meeting of the Authority to be held at short notice, the Authority must give the Secretary of State at least three days clear notice of a meeting of the Authority together with a copy of the agenda for the meeting.
7
A representative of the Secretary of State may attend any meeting as an observer.
8
Minutes must be kept of the proceedings of the Authority.
9
The Authority must provide the Secretary of State with a copy of the minutes of a meeting before the end of the period of thirty days beginning with the day of the meeting.
Members’ interests
3
1
A member who has any pecuniary interest, direct or indirect, in any matter that is brought up for consideration at a meeting of the Authority (which expression in this paragraph includes any committee or subcommittee of the Authority) must disclose the nature of the interest to the meeting.
2
Where such a disclosure is made —
a
the disclosure must be recorded in the minutes of the meeting;
b
the member must not take any part in any deliberation or decision of the Authority with respect to that matter; and
c
the member may be excluded from the meeting whilst the matter is under consideration.
3
For the purposes of this paragraph, a general notification given at a meeting of the Authority by a member to the effect that the member —
a
is a member, director or employee of, or partner in, a specified company or firm, and
b
is to be regarded as interested in any matter involving that company or firm,
is a sufficient disclosure of the member’s interest in any such matter for the purposes of any meeting where the matter comes up for discussion.
4
A member need not attend in person at a meeting of the Authority in order to make a disclosure required to be made under this paragraph, provided that the member takes reasonable steps to secure that the disclosure is made by a notice which is read and considered at the meeting.
5
Subject to sub-paragraph (6), a member of the Authority is to be treated for the purposes of this paragraph as having an indirect pecuniary interest in a contract, proposed contract or other matter if —
a
the member, or a proxy of the member, is a director of a company or other body (not being a public body) with which the contract was made or is proposed to be made or which has a direct pecuniary interest in the other matter under consideration, or
b
the member is in partnership with, or is in the employment of, a person with whom the contract was made or is proposed to be made or who has a direct pecuniary interest in the other matter under consideration,
and in the case of two persons living together as a couple (whether married or not) an interest of one, if known to the other, is deemed for the purposes of this paragraph also to be an interest of the other.
6
A member is not to be treated as having a pecuniary interest in any contract, proposed contract or other matter by reason only —
a
of membership of a company or other body if the member has no beneficial interest in the securities of that company or other body; or
b
of an interest which is so remote or insignificant that it cannot reasonably be regarded as likely to influence the member in the consideration or discussion of, or voting on, any question with respect to that matter.
7
The Secretary of State may, subject to such conditions as appear to the Secretary of State to be appropriate, remove any prohibition imposed by virtue of this paragraph in any case where the prohibition is impeding or likely to impede the ability of the Authority to perform its functions under this Order or under the Port Security Regulations 2009.
8
The power of the Secretary of State under subparagraph (7) includes power to remove, either indefinitely or for any period, a prohibition which would otherwise attach to any member, or members of any description, by reason of such interests and in respect of such matters, as may be specified or described by the Secretary of State.
9
Nothing in this paragraph precludes any member from taking part in the consideration or discussion of, or voting on, any question whether an application should be made to the Secretary of State for the exercise of the power conferred by subparagraph (7).
10
Any person who fails to comply with the provisions of subparagraph (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
11
A person shall not be convicted of an offence under subparagraph (10) if it is proved that that person did not know that the contract, proposed contract or other matter in which that person had a pecuniary interest was the subject of consideration at the meeting concerned.
The Crown
4
The Authority is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown and its property is not to be regarded as property of, or held on behalf of, the Crown. |
The Designation of Rural Primary Schools (England) Order 2012
The Secretary of State for Education makes the following Order in exercise of powers conferred by section 15 of the Education and Inspections Act 2006 :
Citation and commencement
1
This Order may be cited as The Designation of Rural Primary Schools (England) Order 2012 and comes into force on 3rd May 2012.
Designation of rural primary schools
2
The schools published on the Department for Education’s website in a list called “Designated Rural Primary Schools” on 1st May 2012 are designated as rural primary schools in England.
Revocation
3
The Designation of Rural Primary Schools (England) Order 2009 is revoked.
Signed on behalf of the Secretary of State
David McVean
Deputy Director
Department for Education
1st May 2012 |
The Nursing and Midwifery Council (Education, Registration and Registration Appeals) (Amendment) Rules Order of Council 2012
In accordance with articles 47(1) and 48 of the Nursing and Midwifery Order 2001 such Rules shall not come into force until approved by order of the Privy Council.
Citation and commencement
1
This Order may be cited as the Nursing and Midwifery Council (Education, Registration and Registration Appeals) (Amendment) Rules Order of Council 2012 and comes into force on 14th January 2013.
Council approval
2
Their Lordships, having taken these Rules into consideration, are pleased to and do approve them.
Richard Tilbrook
Clerk of the Privy Council
SCHEDULE
THE NURSING AND MIDWIFERY COUNCIL (EDUCATION, REGISTRATION AND REGISTRATION APPEALS) (AMENDMENT) RULES 2012
The Nursing and Midwifery Council makes the following Rules in exercise of the powers conferred by articles 7(2), 12(1), 32 and 47(2) of the Nursing and Midwifery Order 2001 .
In accordance with article 47(3) of that Order, the Nursing and Midwifery Council has consulted representatives of groups of persons who appear likely to be affected by the rules.
Citation and commencement
1
These Rules may be cited as the Nursing and Midwifery Council (Education, Registration and Registration Appeals) (Amendment) Rules 2012 and shall come into force on 14th January 2013.
Amendments to the Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules 2004
2
The Nursing and Midwifery Council (Education, Registration and Registration Appeals) Rules 2004 are amended as follows.
3
In rule 14 (lapse of registration) —
a
in paragraph (1), for “subject to paragraph (4)” substitute “subject to paragraphs (2A) and (4)”; and
b
for paragraph (2), substitute —
2
An application referred to in paragraph (1) shall be accompanied by a declaration by the registrant confirming, as the case may be, that the registrant is —
a
not aware of any matter which could give, or has given, rise to an allegation under article 22 of the Order;
b
aware of any such matter: in such a case the registrant is to give full details of that matter.
2A
Where, on the date the Registrar receives an application under this rule, an allegation against the registrant has been referred to a Practice Committee under article 22(5) of the Order and consideration of the allegation at a substantive meeting or hearing before a Practice Committee has commenced, the Registrar is to seek the advice of that Committee and is to take that advice into account in determining the application.
2B
Where matters have given rise to an allegation against the registrant under article 22 of the Order, and the Council’s proceedings in relation to that allegation have not concluded —
a
the Registrar shall before determining the application provide the maker of the allegation (if any) with a reasonable opportunity to comment on the application;
b
the Registrar, in considering whether to remove the registrant’s name from the register or, where paragraph (2A) applies, the Committee in considering its advice to the Registrar, shall amongst such other matters which the Registrar or, as the case may be, the Committee considers appropriate, have regard to —
i
any comments received pursuant to sub-paragraph (a): such comments may also be considered by the Registrar or Committee in discharging any of their other functions;
ii
the interests of the registrant; and
iii
the public interest.
.
4
In rule 15 (readmission to the register), after paragraph (3) insert —
4
Where the Registrar receives an application for readmission in accordance with this rule and is or becomes aware of information (whether received before or after the applicant’s registration lapsed or before or after the readmission application was made) which raises concerns that the registrant’s fitness to practise may be impaired, the Registrar shall have regard to that information for the purposes of determining whether the applicant has satisfied the Registrar —
a
that the applicant is capable of safe and effective practice as a nurse or midwife in accordance with article 9(2)(b) of the Order;
b
of the applicant’s good health in accordance with rule 6(5); and
c
of the applicant’s good character in accordance with rule 6(6).
.
Given under the official seal of the Nursing and Midwifery Council this 13th day of September 2012.
Mark Addison
Chair
Jackie Smith
Acting Chief Executive and Registrar
Date |
The Wireless Telegraphy Act 2006 (Directions to OFCOM) Order 2012
Citation and commencement
1
This Order may be cited as the Wireless Telegraphy Act 2006 (Directions to OFCOM) Order 2012 and comes into force on the day after the day on which it is made.
Interpretation
2
In this Order —
“ancillary service” has the meaning given in section 24(2) of the Broadcasting Act 1996 ;
“broadcasting channel” means one of the frequency bands listed in column 2 of Table 1 in the Schedule and which is commonly known and referred to by the broadcasting channel number which is listed opposite that frequency band in column 1 of that Table;
“local digital television programme service” has the meaning given in article 3 of the Local Digital Television Programme Services Order 2012 ;
“ MHz ” means megahertz;
“multiplex licence” means a multiplex licence awarded by OFCOM for a local multiplex service pursuant to section 8 of the Broadcasting Act 1996 as it has effect as modified by Article 4 of, and the Schedule to, the Local Digital Television Programme Services Order 2012;
“multiplex licensee” means the holder of a multiplex licence;
“standard definition television service” means a digital television programme service, as defined in section 362(1) of the Communications Act 2003 , which is broadcast in a format designed to display the images comprising a television programme by employing 576 active lines of pixels per frame.
Keeping spectrum for use for the provision of local digital television services
3
1
OFCOM must ensure that one broadcasting channel (which may be a different broadcasting channel in different places within the United Kingdom) is kept available or made available for —
a
multiplex broadcasting of a local digital television programme service; and
b
such other activities as are authorised or required by a multiplex licence.
2
OFCOM must ensure that on every broadcasting channel kept available or made available in accordance with article 3(1) there is sufficient digital capacity to carry —
a
one standard definition television service, to be used for the broadcasting of a local digital television programme service;
b
any ancillary services required for that standard definition television service; and
c
two further standard definition television services.
Wireless telegraphy licence for multiplex licensee
4
OFCOM must —
a
grant to every multiplex licensee a wireless telegraphy licence under section 8 of the Wireless Telegraphy Act 2006 which authorises the establishment or use of wireless telegraphy stations and the installation or use of wireless telegraphy apparatus in the places where that multiplex licensee is authorised to broadcast under a multiplex licence; and
b
exercise their functions to vary or revoke such wireless telegraphy licence, to the extent necessary to match any changes to the places where the multiplex licensee is authorised to broadcast by variations to the multiplex licence.
Release of unused broadcasting channels at a later date
5
If, immediately before 1 January 2019 —
a
OFCOM have kept or made a broadcasting channel available in a particular place of the United Kingdom in accordance with article 3, and
b
that channel has not been used by any multiplex licensee for the purposes set out in article 3(1),
OFCOM’s duties under articles 3 and 4 cease to have effect on that date in relation to that place.
Undue interference with an existing television multiplex service
6
Where, in a particular place in the United Kingdom, in the opinion of OFCOM undue interference would be caused to transmissions from an existing television multiplex service (as defined in section 241 of the Communications Act 2003) in that particular place as a consequence of —
a
a broadcasting channel being kept or made available in accordance with article 3 for multiplex broadcasting of a local digital television programme service in that place, and
b
the installation or use of wireless telegraphy apparatus in that place in accordance with a wireless telegraphy licence granted by virtue of article 4,
articles 3 and 4 do not apply in relation to that particular place.
Jeremy Hunt
Secretary of State
Department for Culture, Media and Sport
13th February 2012
SCHEDULE
Article 2
Table 1
Column 1 Column 2 Broadcasting channel number Frequency range (MHz)
21 470 to 478 22 478 to 486 23 486 to 494 24 494 to 502 25 502 to 510 26 510 to 518 27 518 to 526 28 526 to 534 29 534 to 542 30 542 to 550 39 614 to 622 40 622 to 630 41 630 to 638 42 638 to 646 43 646 to 654 44 654 to 662 45 662 to 670 46 670 to 678 47 678 to 686 48 686 to 694 49 694 to 702 50 702 to 710 51 710 to 718 52 718 to 726 53 726 to 734 54 734 to 742 55 742 to 750 56 750 to 758 57 758 to 766 58 766 to 774 59 774 to 782 60 782 to 790 |
The Land Charges (Amendment) Rules 2012
The Secretary of State makes the following rules in exercise of the powers conferred by sections 16(1) and 17(1) and (2) of the Land Charges Act 1972 .
Citation and commencement
1
These rules may be cited as the Land Charges (Amendment) Rules 2012 and shall come into force on 17th December 2012.
Interpretation
2
In these rules “the principal rules” means the Land Charges Rules 1974 , and in the Schedules to these rules (other than in respect of the reference note at the head of each Schedule) a reference to a rule by number is a reference to the rule so numbered in the principal rules.
Amendments to the principal rules
3
The rules in, and Schedule 1 to, the principal rules are amended as set out in Schedule 1.
4
In Schedule 2 to the principal rules —
a
substitute for Form K9 the form set out in Schedule 2,
b
omit Form K14, and
c
for the word “solicitor” in each place where it occurs in a form, substitute “conveyancer”.
5
For Schedule 3 to the principal rules substitute the schedule set out in Schedule 3.
Signed by the authority of the Secretary of State
Michael Fallon
Minister of State for Business and Enterprise
Department for Business, Innovation and Skills
12th November 2012
SCHEDULE 1
Rule 3
PART 1 AMENDMENTS TO RULES IN THE PRINCIPAL RULES
Amendments to rule 2
1
In rule 2(2) —
a
at the end of the definition of “county” add “but does not include a unitary authority area”,
b
after the definition of “day” insert —
“district” includes —
a London borough, and
the City of London,
but does not include a unitary authority area;,
,
c
for the definition of “principal office” substitute —
“principal office” means the office of the registry specified in a direction pursuant to section 17(2) of the Act;
, and
d
after the definition of “relevant particulars” insert —
“unitary authority area” means —
a county for which there are no district councils,
a district in an area for which there is no county council,
a county or county borough in Wales,
the Isles of Scilly.
.
Amendment to rule 3
2
For rule 3(2) substitute —
Subject to rule 20(3), any person may, upon completion of Form K21 and on payment of the prescribed fee, inspect an entry in the register at the principal office.
.
Amendment to rules 4 and 5
3
At the beginning of rules 4 and 5 insert “Subject to rule 20(3),”.
Revocation of rule 6
4
Rule 6 is revoked.
Amendment to rule 8
5
In rule 8(1), after “principal office” insert “or by the registrar under the provisions of any relevant notice given under Schedule 3, in either case”.
Amendment to rules 10, 11 and 12
6
At the beginning of rules 10, 11 and 12 insert “Subject to rule 20(3),”.
Amendment to rule 13
7
In rule 13 omit paragraph (2).
Amendment to rule 14
8
At the beginning of rule 14(3) insert “Subject to rule 20(3),”.
New rule 16
9
For rule 16 substitute —
16
Subject to rule 20(3), an application for an official search in the index pursuant to section 10(1) shall be made in Form K15 or K16 whichever is appropriate.
.
Amendment to rule 17
10
At the beginning of rule 17(1) insert “Subject to rule 20(6),”.
Revocation of rule 18
11
Rule 18 is revoked.
New rule 19
12
For rule 19 substitute —
19
Subject to rule 20(3), an application for an office copy of an entry in a register shall be made in Form K19.
.
Amendment to rule 19A
13
In rule 19A(1), after “Schedule 2” insert “, or provide the particulars referred to in rule 20(3),”.
New rule 20
14
For rule 20 substitute —
20
1
Subject to paragraph (3), applications under the Act or these Rules shall be sent by prepaid post or document exchange, or be delivered by hand, to the principal office.
2
Subject to paragraph (3), every such application shall be accompanied by the prescribed fee, unless that fee is debited by the registrar to a credit account, or there exists an agreement with the registrar allowing payment of the fee by direct debit or other means.
3
Any application or priority notice under the Act or these Rules may, during the currency of a relevant notice given under Schedule 3, and subject to and in accordance with the limitations contained in that notice, be made or given by any means of communication other than post, document exchange or delivery by hand, and the applicant must provide such of the particulars required for an application of that type or for a priority notice as are appropriate in the circumstances and as are required by the notice.
4
Notwithstanding the provisions of paragraph (3), the registrar may, at the registrar’s discretion, refuse to accept an application made by means of communication other than post, document exchange or delivery by hand.
5
Paragraph (4) does not apply to applications to which section 10(1)(b) applies.
6
Any certificates or other results, or acknowledgements of applications under the Act or these rules may, during the currency of a relevant notice given under Schedule 3, and subject to and in accordance with the limitations contained in that notice, be issued by any means of communication other than post or document exchange.
7
Where information is issued under paragraph (6) it must be to like effect to that which would have been provided had the information been issued in paper form.
.
Amendment to rule 21
15
In rule 21, after “form” insert “or a relevant notice given under Schedule 3”.
Amendment to rule 23
16
At the beginning of rule 23 insert “Subject to rules 20(6) and (7),”.
Amendment to rule 24
17
After rule 24(2) insert —
3
In the prescribed forms, “conveyancer” means —
i
an authorised person entitled to carry on the relevant reserved instrument activities in accordance with the regulatory arrangements of the relevant approved regulator or licensing authority, as the case may be,
ii
an individual or body who employs, or being a body has among its managers, at least one authorised person entitled to carry on the relevant reserved instruments activities and who will carry on or direct and supervise the carrying on of the relevant reserved instrument activities as such employee or manager, in accordance with the regulatory arrangements of the relevant approved regulator or licensing authority, as the case may be, or
iii
a person who carries on the relevant reserved instrument activities in the course of that person’s duty as a public officer.
4
For the purposes of the definition in paragraph (3) —
i
“authorised person” has the same meaning as in section 18 of the Legal Services Act 2007 ,
ii
“licensing authority” has the same meaning as in section 73 of the Legal Service Act 2007,
iii
“manager” has the same meaning as in section 207 of the Legal Services Act 2007,
iv
“regulatory arrangements” has the same meaning as in section 21 of the Legal Services Act 2007,
v
“relevant approved regulator” has the same meaning as in section 20 of the Legal Services Act 2007,
vi
“relevant reserved instrumentation activities” means the reserved instrument activities set out in paragraph 5(1)(a) and (b) of Schedule 2 to the Legal Services Act 2007.
.
PART 2 AMENDMENTS TO SCHEDULE 1 TO THE PRINCIPAL RULES
Amendment to heading
18
At the head of Schedule 1 to the principal rules insert the reference note “Rule 2”.
Amendment to relevant particulars
19
In the “Relevant Particulars” column of paragraphs 1(v), 2(a)(v), 3(a)(v), and 4(iv) of Schedule 1 to the principal rules, after “district” insert “, or unitary authority area,”.
SCHEDULE 2
SUBSTITUTED FORM K9 IN SCHEDULE 2 TO THE PRINCIPAL RULES
Rule 4
SCHEDULE 3
SUBSTITUTED SCHEDULE 3 TO THE PRINCIPAL RULES
Rule 5
SCHEDULE 3
NOTICES PUBLICISING ARRANGEMENTS FOR ELECTRONIC AND OTHER MODES OF DELIVERY OF APPLICATIONS AND OTHER MATTERS
Rule 20(3)
1
If the registrar is satisfied that adequate arrangements have been made or will be in place for dealing with applications, priority notices, certificates, acknowledgements or other results of applications under the Act or these Rules by means other than post, document exchange or delivery by hand, the registrar may, in such manner as the registrar thinks appropriate, give notice publicising the arrangements.
2
Subject to paragraphs 3, 4 and 5, a notice given under paragraph 1 will be current from the time specified in the notice until the time, if any, specified in the notice or if no expiry date is specified, indefinitely.
3
A notice given under paragraph 1 may from time to time be varied, suspended, withdrawn, renewed or replaced by a further notice.
4
If and so long as, owing to the breakdown or other unavailability of facilities or data involved in giving effect to the arrangements made for dealing with applications or certificates and results covered by a notice given under paragraph 1, such arrangements cease in whole or in part to be effective, the notice shall cease to be treated as current so far as relevant.
5
Paragraph 4 will apply despite the absence of a variation, suspension or withdrawal of the notice under paragraph 3. |
The Employment and Support Allowance (Duration of Contributory Allowance) (Consequential Amendments) Regulations 2012
This instrument contains only regulations made by virtue of, or consequential upon, sections 51 and 52 of the Welfare Reform Act 2012 and is made before the end of the period of 6 months beginning with the coming into force of those sections .
Citation and commencement
1
1
These Regulations may be cited as the Employment and Support Allowance (Duration of Contributory Allowance) (Consequential Amendments) Regulations 2012.
2
These Regulations come into force on 1st May 2012.
Amendment to the Social Security (Credits) Regulations 1975
2
After regulation 8B(2)(a)(iv) of the Social Security (Credits) Regulations 1975 (credits for incapacity for work or limited capability for work) insert —
iva
would have been a day of limited capability for work for the purposes of Part 1 of the Welfare Reform Act (limited capability for work) where the person concerned would have been entitled to an employment and support allowance but for the application of section 1A of that Act; or
.
Amendments to the Income Support (General) Regulations 1987
3
1
The Income Support (General) Regulations 1987 are amended as follows.
2
In regulation 13(3)(b)(iv) (circumstances in which persons in relevant education are to be entitled to income support) after “support component” insert “or who would be entitled to an employment and support allowance including a work-related activity component but for the application of section 1A of the Welfare Reform Act (duration of contributory allowance)”.
3
For paragraph 1(3)(d) of Schedule 3 (housing costs) substitute —
d
who–
i
is in receipt of an employment and support allowance which includes an amount under section 2(2) or (3) or 4(4) or (5) of the Welfare Reform Act (components); or
ii
would be entitled to an employment and support allowance including an amount of a work-related activity component under section 2(3) of that Act (amount of contributory allowance: work-related activity component), but for the application of section 1A of that Act (duration of contributory allowance).
.
Amendment to the Jobseeker’s Allowance Regulations 1996
4
For paragraph 1(3)(e) of Schedule 2 to the Jobseeker’s Allowance Regulations 1996 (housing costs) substitute —
e
who–
i
is in receipt of an employment and support allowance which includes an amount under section 2(2) or (3) or 4(4) or (5) of the Welfare Reform Act (components); or
ii
would be entitled to an employment and support allowance including an amount of a work-related activity component under section 2(3) of that Act (amount of contributory allowance: work-related activity component), but for the application of section 1A of that Act (duration of contributory allowance).
.
Amendment to the Social Security and Child Support (Decisions and Appeals) Regulations 1999
5
After regulation 3(5H) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (revision of decisions) insert —
5I
Where —
a
a decision to terminate a person’s entitlement to a contributory employment and support allowance is made because of section 1A of the Welfare Reform Act (duration of contributory allowance); and
b
it is subsequently determined, in relation to the period of entitlement before that decision, that the person had or is treated as having had limited capability for work-related activity,
the decision to terminate that entitlement may be revised.
.
Amendment to the State Pension Credit Regulations 2002
6
In paragraph 1(2)(a)(iii)(dd) of Schedule II to the State Pension Credit Regulations 2002 (housing costs) after “(components)” insert “or would be entitled to an employment and support allowance including an amount of a work-related activity component under section 2(3) of that Act (amount of contributory allowance: work-related activity component), but for the application of section 1A of that Act (duration of contributory allowance)”.
Amendment to the Housing Benefit Regulations 2006
7
1
In Schedule 3 to the Housing Benefit Regulations 2006 (applicable amounts), after “converted employment and support allowance” where it appears in the paragraphs mentioned in paragraph (2), insert “, or would be entitled but for the application of section 1A of the Welfare Reform Act (duration of contributory allowance)”.
2
The paragraphs are —
a
1A(b) (personal allowances);
b
21A (the components); and
c
27(1)(a) (transitional addition).
Amendment to the Council Tax Benefit Regulations 2006
8
1
In Schedule 1 to the Council Tax Benefit Regulations 2006 (applicable amounts), after “converted employment and support allowance” where it appears in the paragraphs mentioned in paragraph (2), insert “, or would be entitled but for the application of section 1A of the Welfare Reform Act (duration of contributory allowance)”.
2
The paragraphs are —
a
1A(b) (personal allowances);
b
21A (the components); and
c
27(1)(a) (transitional addition).
Amendments to the Employment and Support Allowance Regulations 2008
9
1
The Employment and Support Allowance Regulations 2008 are amended as follows.
2
In regulation 7 (circumstances where the condition that the assessment phase has ended before entitlement to the support component or the work-related activity component arises does not apply) —
a
in paragraph (1)(b) omit “or” where it appears at the end of that paragraph; and
b
after paragraph (1)(c) add–
; or
d
a claimant is entitled to an employment and support allowance by virtue of section 1B of the Act (further entitlement after time-limiting).
.
3
In regulation 144 (waiting days) after paragraph (2)(d) add–
; or
e
the claimant is entitled to an employment and support allowance by virtue of section 1B of the Act (further entitlement after time-limiting).
.
4
For paragraph 1(3)(a) of Schedule 6 (housing costs) substitute —
a
i
in respect of whom the main phase employment and support allowance is payable to the claimant or to a person living with the claimant; or
ii
where they are the claimant or a person living with the claimant, in respect of whom there would be entitlement to an employment and support allowance including a work-related activity component under section 2(3) of the Act (amount of contributory allowance: work-related activity component), but for the application of section 1A of the Act (duration of contributory allowance);
.
Amendments to the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010
10
1
The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 are amended as follows.
2
In regulation 7 (qualifying for conversion) —
a
in paragraph (1) for “paragraph (2)” substitute “paragraphs (2) and (3)”; and
b
after paragraph (2) add–
3
Where P would be entitled to an award of an employment and support allowance under the 2007 Act but for the application of section 1A of that Act (duration of contributory allowance) and it had been determined in respect of the entitlement that had ceased that P —
a
had limited capability for work; or
b
was to be treated as having limited capability for work, other than by virtue of regulation 30 of the 2008 Regulations,
in relation to the conversion of P’s existing award, P is to be taken as having satisfied the condition set out in section 1(3)(a) of the 2007 Act (limited capability for work).
.
3
In regulation 21 (termination of transitional addition) —
a
in paragraph (1)(b) after “(3)” insert “, (3A)”;
b
after paragraph (3) insert–
3A
Any termination of T’s entitlement to a transitional addition under regulation 10(2)(a) (transitional addition: incapacity benefit or severe disablement allowance) shall instead have effect as a suspension of that entitlement in Case 1A.
;
c
after paragraph (5) insert–
5A
Case 1A is where —
a
T was previously entitled to a contributory allowance;
b
entitlement to that previous allowance terminated by virtue of section 1A of the 2007 Act (duration of contributory allowance);
c
on a subsequent claim made by T for an employment and support allowance, a period of limited capability for work is treated under regulation 145(1) of the 2008 Regulations (linking rules) as a continuation of an earlier period of limited capability for work; and
d
it is determined in relation to the subsequent claim that T has, or is treated as having, limited capability for work-related activity.
; and
d
in paragraph (7) after “Cases 1” insert “, 1A”.
4
In Schedule 2 (modification of enactments: after the conversion phase) after paragraph 2 insert —
2A
1
In relation to awards of an employment and support allowance to persons previously entitled to existing awards, the application of section 1A (duration of contributory allowance) is modified in accordance with sub-paragraph (2).
2
Section 1A is to be read as if there were substituted —
1A
1
The period for which a person is entitled to a contributory allowance shall not exceed, in the aggregate, the relevant maximum number of days in any period for which his entitlement is established by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010.
2
In subsection (1) the “relevant maximum number of days” is–
a
365 days, or
b
if the Secretary of State by order specifies a greater number of days, that number of days.
3
The fact that a person’s entitlement to a contributory allowance has ceased as a result of subsection (1) does not prevent his being entitled to a further allowance if he satisfies the first and second conditions set out in Part 1 of Schedule 1.
4
In calculating for the purposes of subsection (1) the length of the period for which a person is entitled to a contributory allowance, the following are not to be counted–
a
days in which the person is a member of the support group, and
b
days not falling within paragraph (a) in respect of which the person is entitled to the support component referred to in section 2(1)(b).
5
In calculating for the purposes of subsection (1) the length of the period for which a person is entitled to a contributory allowance, days occurring before the coming into force of this section are to be counted (as well as those occurring afterwards).
.
.
Signed by authority of the Secretary of State for Work and Pensions.
Freud
Parliamentary Under-Secretary of State,
Department for Work and Pensions
21st March 2012 |
The Wireless Telegraphy (Spectrum Trading) Regulations 2012
Before making these Regulations, OFCOM have given notice of their proposal to do so in accordance with section 122(4)(a) of the Act, published notice of their proposal in accordance with section 122(4)(b) of the Act, and have considered the representations made to them before the time specified in the notice in accordance with section 122(4)(c) of the Act.
Citation, commencement and extent
1
1
These Regulations may be cited as the Wireless Telegraphy (Spectrum Trading) Regulations 2012 and shall come into force on 13th September 2012.
2
These Regulations shall not extend to the Bailiwick of Guernsey.
Revocation
2
The Regulations set out in Schedule 1 are hereby revoked.
Interpretation
3
In these Regulations —
a
“concurrent holders” means persons who concurrently hold the rights and obligations under a wireless telegraphy licence by virtue of a transfer authorised by these Regulations which has that effect;
b
“station” means wireless telegraphy station; and
c
“apparatus” means wireless telegraphy apparatus.
Transfer of all the rights and obligations arising by virtue of a wireless telegraphy licence
4
1
Subject to regulation 8, a transfer by the holder of a wireless telegraphy licence to which this paragraph applies of all of the rights and obligations arising by virtue of that wireless telegraphy licence is authorised if it satisfies one of the two conditions set out in paragraph (2).
2
Those conditions are —
a
that the rights and obligations of the person making the transfer become rights and obligations of the transferee to the exclusion of the person making the transfer;
b
that the transferred rights and obligations become rights and obligations of the transferee while continuing, concurrently, to be rights and obligations of the person making the transfer.
3
Paragraph (1) shall apply to wireless telegraphy licences within the licence classes specified in Colum 1 of each of Parts 3 to 21 of Schedule 2 which apply to a station or apparatus operating within any of the frequency bands specified in Column 2 of the same Part.
Concurrent Spectrum Access licence class
5
Subject to regulation 8, a transfer by the holder of a wireless telegraphy licence within the licence class specified in Column 1 of Part 1 of Schedule 2 which applies to stations or apparatus operating within either of the frequency bands specified in Column 2 of the same Part, of all of the rights and obligations arising by virtue of that wireless telegraphy licence, is authorised if the rights and obligations of the person making the transfer become rights and obligations of a single transferee to the exclusion of the person making the transfer.
Satellite (Complementary Ground Components of a Mobile Satellite System) licence class
6
Subject to regulation 8, a transfer by the holder of a wireless telegraphy licence within the licence class specified in Column 1 of Part 2 of Schedule 2 which applies to a station or apparatus operating within either of the frequency bands specified in Column 2 of the same Part, of all of the rights and obligations arising by virtue of that wireless telegraphy licence, is authorised if the transferred rights and obligations become rights and obligations of the transferee while continuing, concurrently, to be rights and obligations of the person making the transfer.
Partial transfer of rights and obligations arising by virtue of a wireless telegraphy licence
7
Subject to regulation 8, transfers satisfying one of the two conditions set out in regulation 4(2) are also authorised where the transfer is of —
a
all of the rights arising by virtue of a wireless telegraphy licence which relate to —
i
whole frequency channels under one of the licences of a class specified in Column 1 of Parts 3 to 9 of Schedule 2 which apply to a station or apparatus operating within any of the frequency bands specified in Column 2 of the same Part;
ii
part frequency channels which have in each case a bandwidth of 12.5 kHz or a multiple thereof and the same start or end frequency limit as a licensed frequency channel under one of the licences of the class specified in Column 1 of Part 3 of Schedule 2 which apply to a station or apparatus operating within the frequency band specified in Column 2 of the same Part;
iii
whole wireless telegraphy links designed for use between two fixed points under one of the licences of a class specified in Column 1 of Part 10 of Schedule 2 which apply to a station or apparatus operating within any of the frequency bands specified in Column 2 of that Part;
iv
a part of the range of frequencies under one of the licences of a class specified in Column 1 of Part 11 of Schedule 2 which apply to a station or apparatus operating within any of the frequency bands specified in Column 2 of the same Part;
v
a geographical area being part of the total geographical area in which the holder is authorised to establish, install and use radio transmitting and receiving stations or apparatus under one of the licences of a class specified in Column 1 of Part 11 of Schedule 2 which apply to a station or apparatus operating within any of the frequency bands specified in Column 2 of the same Part;
vi
both of the situations set out in sub-paragraphs (iv) and (v);
vii
part frequency channels which have in each case a bandwidth of 6.25 kHz or a multiple thereof and the same start or end frequency limit as a licensed frequency channel under one of the licences of a class specified in Column 1 of Part 12 or Column 1 of Part 13 of Schedule 2 which apply to a station or apparatus operating within any of the frequency bands specified in Column 2 of the same Part;
viii
a geographical area being a fifty kilometre by fifty kilometre square part of the total geographical area in which the holder is authorised to establish, install and use radio transmitting and receiving stations or apparatus under one of the licences of a class specified in Column 1 of Part 8 or Column 1 of Part 13 of Schedule 2 which apply to a station or apparatus operating within any of the frequency bands specified in Column 2 of the same Part; or
ix
both of the following situations —
aa
part frequency channels which have in each case a bandwidth of 6.25 kHz or a multiple thereof and the same start or end frequency limit as a licensed frequency channel under one of the licences of a class specified in Column 1 of Part 13 of Schedule 2 which apply to a station or apparatus operating within any of the frequency bands specified in Column 2 of the same Part; and
bb
a geographical area being a fifty kilometre by fifty kilometre square part of the total geographical area in which the holder is authorised to establish, install and use radio transmitting and receiving stations or apparatus under one of the licences of a class specified in Column 1 of Part 13 of Schedule 2 which apply to a station or apparatus operating within any of the frequency bands specified in Column 2 of the same Part; and
b
the corresponding part of each of the obligations under the licence.
Circumstances in which a transfer is not authorised
8
A transfer of rights and obligations arising under a wireless telegraphy licence is not authorised where —
a
any of the licence holder, or all of the concurrent holders, and the transferee have not consented to the transfer;
b
any sum payable under the Wireless Telegraphy (Licence Charges) Regulations 2011 in respect of that licence is owing to OFCOM because it has not been paid by the time it became due;
c
any instalment payment is to be paid to OFCOM under regulation 4(8)(b) of the Wireless Telegraphy (Licence Charges) Regulations 2011 in respect of that licence;
d
OFCOM has served notice under paragraph 7 of Schedule 1 to the Wireless Telegraphy Act 2006 on the holder, or the concurrent holders, of that licence of a proposal to revoke or vary that licence but that revocation or variation has not yet been made; or
e
the holder has, or all of the concurrent holders have, requested OFCOM to revoke or vary the licence or have consented to a revocation or variation proposed by OFCOM but that revocation or variation has not yet been made.
Transfer procedure
9
1
The holder, or concurrent holders, of a wireless telegraphy licence who wishes, or who wish, to make a transfer authorised by regulations 4(1), 5, 6 or 7 must provide to OFCOM —
a
the reference number of the wireless telegraphy licence under which rights and obligations are to be transferred;
b
the name and address of the holder or concurrent holders of the wireless telegraphy licence;
c
the name and address of the proposed transferee;
d
a description of which type of transfer authorised by regulation 4(1), 5, 6 or 7 is proposed;
e
a document signed by or on behalf of the holder, or each concurrent holder, of the licence and signed by or on behalf of the transferee, under which each of those persons warrants to OFCOM that he has consented to the proposed transfer; and
f
in the case of a transfer authorised by regulation 7, a description of which rights and obligations under the licence are to be transferred.
2
OFCOM shall, after determining that the requirements of paragraph (1) have been met, publish a notice stating —
a
the name of the wireless telegraphy licence holder or concurrent holders and the name of the transferee to whom it is proposed that the rights and obligations arising under the licence shall be transferred;
b
the date when OFCOM determined that the requirements of paragraph (1) were met;
c
the licence class and the reference number of the wireless telegraphy licence under which rights and obligations are to be transferred; and
d
in the case of a transfer authorised by regulation 7, a description of which rights under the licence are proposed to be transferred.
3
A transfer shall be effected by the holder or concurrent holders of the wireless telegraphy licence under which rights and obligations are to be transferred surrendering that licence and by OFCOM granting a new one to the transferee and —
a
in the case of a transfer which satisfies the condition set out in regulation 4(2)(b), to the holder or concurrent holders who made the transfer; and
b
in the case of a transfer authorised by regulation 7, to the holder or concurrent holders who made the transfer.
4
OFCOM shall publish the information specified in paragraph (2) in relation to transfers that have been effected pursuant to paragraph (3).
Hyacinth S. Nwana
Group Director, Spectrum Policy Group of the Office of Communications
For and on behalf of the Office of Communications
23rd August 2012
SCHEDULES
SCHEDULE 1
REVOCATIONS
Regulation 2
(1)
Regulations Revoked
(2)
References
The Wireless Telegraphy (Spectrum Trading) Regulations 2004 S.I. 2004/3154 The Wireless Telegraphy (Spectrum Trading) (Amendment) Regulations 2006 S.I. 2006/339 The Wireless Telegraphy (Spectrum Trading) (Amendment) ( No. 2) Regulations 2006 S.I. 2006/1807 The Wireless Telegraphy (Spectrum Trading) (Amendment) Regulations 2007 S.I. 2007/380
The Wireless Telegraphy (Spectrum Trading) (Amendment) (No. 2) Regulations 2007 S.I. 2007/3387
The Wireless Telegraphy (Spectrum Trading) (Amendment) Regulations 2008 S.I. 2008/688 The Wireless Telegraphy (Spectrum Trading) (Amendment) (No. 2) Regulations 2008 S.I. 2008/2105 The Wireless Telegraphy (Spectrum Trading) (Amendment) (No. 3) Regulations 2008 S.I. 2008/3192
SCHEDULE 2
LICENCE CLASSES AND FREQUENCY BANDS
Regulations 4, 5, 6 and 7
PART 1
Column 1 Column 2 Licence class Frequency bands Concurrent Spectrum Access 1781.7–1785.0 MHz 1876.7–1880.0 MHz
PART 2
Column 1 Column 2 Licence class Frequency bands Satellite (Complementary Ground Components of a Mobile Satellite System) 1980–2010 MHz
2170–2200 MHz
PART 3
Column 1 Column 2 Licence class Frequency band Scanning Telemetry 457.5–464 MHz
PART 4
Column 1 Column 2 Licence class Frequency bands Satellite (Permanent Earth Station) 3600–4200 MHz 5150–5250 MHz 5725–7075 MHz 10.7–13.25 GHz 13.75–14.5 GHz 17.3–20.2 GHz 27.5–30 GHz
PART 5
Column 1 Column 2 Licence class Frequency bands Satellite (Transportable Earth Station) 5.925–7.075 GHz 13.78–14.5 GHz 27.5–27.8185 GHz 28.4545–28.8265 GHz 29.4625–30 GHz
PART 6
Column 1 Column 2 Licence class Frequency bands Satellite (Earth Station) (Non-Fixed Satellite Service) 137–138 MHz
149–149.9 MHz
2025–2110 MHz 2200–2290 MHz 3600–4200 MHz 5150–5250 MHz 5725–7075 MHz 10.7–12.75 GHz 27.5–27.8185 GHz 28.4545–28.8265 GHz 29.4625–30 GHz
PART 7
Column 1 Column 2 Licence class Frequency bands Satellite (Earth Station) (Non-Geostationary) 137–138 MHz 149–149.9 MHz 2025– 2110 MHz 2200–2290 MHz 3600–4200 MHz 5150–5250 MHz 5725–7075 MHz 10.7–13.25 GHz 13.75–14.5 GHz 19.7–20.2 GHz 27.5–27.8185 GHz 28.4545–28.8265 GHz 29.4625–30 GHz
PART 8
Column 1 Column 2 Licence class Frequency band Coastal Station Radio (International) Area Defined 156–162.05 MHz
PART 9
Column 1 Column 2 Licence class Frequency band Coastal Station Radio (International) 156–162.05 MHz
PART 10
Column 1 Column 2 Licence classes Frequency bands Point to Point Fixed Links 1350–1530 MHz Self Coordinated Links 1672–1690 MHz 3600–4200 MHz 5925–6425 MHz 6425–7125 MHz 7425–7900 MHz 10.7–11.7 GHz 12.75–13.25 GHz 14.25–14.5 GHz 14.5–15.35 GHz 17.3–17.7 GHz 17.7–19.7 GHz 21.2–22 GHz 22–23.6 GHz 24.5–26.5 GHz 32.319–32.571 GHz 33.131–33.383 GHz 37–39.5 GHz 49.2–50.2 GHz 51.4–52.6 GHz 55.78–57 GHz 64–66 GHz 71.125–75.875 GHz 81.125–85.875 GHz
PART 11
Column 1 Column 2 Licence classes Frequency bands Broadband Fixed Wireless Access 412.0–414.0 MHz Spectrum Access 422.0–424.0 MHz 542–550 MHz 742–750 MHz 758–766 MHz 1452–1492 MHz 1785–1805 MHz 3480–3500 MHz 3580–3600 MHz 10.125–10.225 GHz 10.475–10.575 GHz 27.8285– 28.0525 GHz 28.0525–28.1645 GHz
28.0525–28.4445 GHz
28.1925–28.3045 GHz 28.3325–28.4445 GHz 28.8365–29.0605 GHz 29.0605–29.1725 GHz
29.0605–29.4525 GHz
29.2005–29.3125 GHz 29.3405–29.4525 GHz 31.815–32.571 GHz 32.627–33.383 GHz 40.50–42.00 GHz 42.00–43.50 GHz
PART 12
Column 1 Column 2 Licence classes Frequency bands Business Radio (Technically Assigned) 26.2–87.50 MHz Coastal Station Radio ( UK ) 136–208 MHz
137.962–165.043 MHz
426–470 MHz
PART 13
Column 1 Column 2 Licence classes Frequency bands Business Radio (Area Defined) 26.2–87.50 MHz Coastal Station Radio (UK) Area Defined 132–134 kHz
136–208 MHz
137.962–165.043 MHz 146–148 kHz 425–470 MHz
PART 14
Column 1 Column 2 Licence class Frequency bands Spectrum Access 3605–3689 MHz 3925–4009 MHz
PART 15
Column 1 Column 2 Licence classes Frequency bands Business Radio (Simple UK) 26.2–87.50 MHz Business Radio (Suppliers Light) 136–208 MHz Business Radio (Simple Site) 425–470 MHz
PART 16
Column 1 Column 2 Licence class Frequency bands Coastal Station Radio (Marina) 157.025 MHz 157.85 MHz 161.425 MHz
PART 17
Column 1 Column 2 Licence class Frequency band Coastal Station Radio (Training School) 137.962–165.043 MHz
PART 18
Column 1 Column 2 Licence class Frequency bands Differential Global Positioning System 283–315 kHz 435–495 kHz 505–526 kHz 1625–1635 kHz 1800–1810 kHz 1850–2000 kHz 2000–2025 kHz 2160–2170 kHz 2625–2650 kHz 2650–2850 kHz 3155–3200 kHz 3200–3230 kHz 3500–3800 kHz
PART 19
Column 1 Column 2 Licence class Frequency bands Maritime Radio (Suppliers and Demonstration) 283–315 kHz 415–526 kHz 16.06–27.5 MHz 121.5 MHz 121.65 MHz 123.1 MHz 137.962–165.043 MHz 243 MHz 406–406.1 MHz 457.525 MHz 457.537 MHz 457.55 MHz 457.562 MHz 457.575 MHz 467.525 MHz 467.537 MHz 467.55 MHz 467.562 MHz 467.575 MHz 1525–1559 MHz 1626.5–1660.5 MHz
PART 20
Column 1 Column 2 Licence class Frequency bands Global Navigation Satellite System ( GNSS ) Repeaters 1164–1215 MHz
1215–1300 MHz
1559–1610 MHz
PART 21
Column 1 Column 2 Licence class Frequency bands Satellite (Earth Station Network) 14–14.25 GHz 27.5–27.8185 GHz 28.4545–28.8265 GHz 29.4625–30 GHz |
The School Admissions (Infant Class Sizes) (England) Regulations 2012
The Secretary of State for Education makes the following Regulations in exercise of the powers conferred by sections 1 and 138(7) of the School Standards and Framework Act 1998 :
Citation, commencement and application
1
1
These Regulations may be cited as the School Admissions (Infant Class Sizes) (England) Regulations 2012 and come into force on 1st February 2012.
2
Paragraph 4 of the Schedule to these Regulations applies in relation to the 2013-2014 school year and subsequent years.
3
These Regulations apply in relation to any maintained school in England which contains an infant class .
Interpretation
2
1
In these Regulations —
“ EA 1996 ” means the Education Act 1996 ;
“ SSFA 1998 ” means the School Standards and Framework Act 1998;
“child with a statement” means a child in relation to whom a statement is maintained by a local authority under section 324(1) of EA 1996 ;
“suitable education”, in relation to a child, means efficient full-time education suitable to the child’s age, ability, and aptitude and any special educational needs that child may have.
2
For the purposes of these Regulations a child is to be treated as having been admitted to a school outside a normal admission round where paragraph (3) or (4) applies.
3
This paragraph applies where, at the time the child was admitted to the school, that child did not fall within an age group in which pupils are normally admitted to that school.
4
This paragraph applies to a child where —
a
at the time of that child’s admission to the school, the child fell within an age group in which pupils are normally admitted to the school;
b
the number of pupils in that age group seeking admission to the school in the school year in which the child was first admitted to the school was greater than the number of pupils which the admission authority intended to admit to the school in that age group in that year; and
c
the child was offered a place at the school after the time when the admission authority had determined, in accordance with the school’s admission arrangements, which children in that age group were to be admitted to the school.
5
In paragraphs (2) to (4) references to a child’s admission to a school are references to the child’s admission to an infant class at the school.
Regulations revoked
3
The following Regulations are revoked —
a
the Education (Infant Class Sizes) (England) Regulations 1998 ;
b
the Education (Infant Class Sizes) (England) (Amendment) Regulations 2006 .
Limit on infant class sizes
4
1
No infant class may contain more than 30 pupils while an ordinary teaching session is conducted by a single school teacher.
2
Where an ordinary teaching session is conducted by more than one school teacher, the class may not contain more than 30 pupils for every one of those teachers.
3
Where an infant class contains any excepted pupil (as defined by regulation 5), the limits in paragraphs (1) and (2) apply as if the excepted pupil were not included in the class.
Excepted pupils
5
1
An excepted pupil is a child to whom any of paragraphs 2 to 11 of the Schedule applies.
2
A child is not an excepted pupil at a school if suitable education could be provided for that child in an infant class at that school without relevant measures having to be taken.
3
In paragraph (2) “relevant measures” means measures which would —
a
be required to be taken to ensure compliance with the duty imposed by section 1(6) of SSFA 1998, and
b
prejudice the provision of efficient education or the efficient use of resources.
Nick Gibb
Minister of State
Department for Education
3rd January 2012
SCHEDULE
Excepted Pupils
Regulation 5
1
In this Schedule —
a
“child” means a child who is a pupil in any infant class;
b
“the school” means the school of which that class forms part;
c
“armed forces” means the Royal Navy, the Royal Marines, the regular army or the Royal Air Force;
d
“the regular army” means any of Her Majesty’s military forces other than —
i
the Army Reserve;
ii
the Territorial Army; and
iii
forces raised under the law of a British overseas territory.
2
A child with a statement admitted to the school outside a normal admission round as a result of the local authority specifying the school in the child’s statement under section 324(5)(b) of EA 1996 .
3
A child who is looked after by a local authority (within the meaning of section 22(1) of the Children Act 1989 ) and is admitted to the school outside a normal admission round.
4
A child who was previously looked after by a local authority but ceased to be so because they were adopted or became subject to a residence order or special guardianship order , and who is admitted to the school outside a normal admission round.
5
A child admitted to the school outside a normal admission round who was initially refused admission to the school owing to a failure properly to implement the school’s admission arrangements, but was subsequently offered a place by virtue of a determination by the admission authority that there had been such a failure in relation to the child.
6
A child admitted to the school outside a normal admission round by virtue of a determination of an appeal panel in accordance with section 94(6) of SSFA 1998 .
7
1
Subject to sub-paragraph (3), a child admitted to the school outside a normal admission round —
a
in relation to whom the school is the only school (apart from any school to which the child has already been refused admission or from which the child has been permanently excluded) which —
i
is within a reasonable distance from the child’s home, and
ii
provides suitable education; and
b
who did not, at the relevant time, ordinarily reside at a place which was within a reasonable distance from the school.
2
In sub-paragraph (1)(b) “the relevant time” —
a
in relation to a child to whom regulation 2(3) applies, means the time when the majority of pupils in the age group in which the child falls were admitted to the school; and
b
in relation to a child to whom regulation 2(4) applies, means the time referred to in sub-paragraph (c) of that paragraph.
3
A child is not an excepted child under this paragraph unless the local authority who maintain the school have confirmed in writing that they are satisfied the child fulfils the criteria listed in sub-paragraph (1)(a).
8
A child whose parent is in the armed forces and who is admitted to the school outside a normal admission round.
9
A child whose twin or other sibling from a multiple birth is admitted in the same age group otherwise than as an excepted pupil.
10
A child who is a registered pupil at a special school but, by arrangement between the school and the special school, receives part of their education at the school.
11
A child who is normally educated in a unit which forms part of the school and is specially organised to provide education for pupils with special educational needs, but spends a minority of their time in the infant class.
12
Paragraphs 3 to 9 do not apply to a child with a statement. |
The Civil Procedure (Amendment) Rules 2012
The Civil Procedure Rule Committee makes the following Rules in exercise of the power conferred by section 2 of the Civil Procedure Act 1997 to make rules of court under section 1 of that Act, after consulting in accordance with section 2(6)(a) of that Act —
Citation, commencement and interpretation
1
These Rules may be cited as the Civil Procedure (Amendment) Rules 2012 and come into force on 19th March 2012.
2
In these Rules, a reference to a Part or rule by number alone means the Part or rule so numbered in the Civil Procedure Rules 1998 .
Amendments to the Civil Procedure Rules 1998
3
In Part 71, in rule 71.2(2), for subparagraph (b) substitute —
b
must be issued in the court which made the judgment or order which it is sought to enforce, except that —
i
if the proceedings have since been transferred to a different court, it must be issued in that court; or
ii
subject to subparagraph (b)(i), if it is to enforce a judgment made in Northampton County Court in respect of a designated money claim, it must be issued in accordance with section 2 of Practice Direction 70.
.
4
In Part 72, in rule 72.3(1), for subparagraph (b) substitute —
b
must be issued in the court which made the judgment or order which it is sought to enforce, except that —
i
if the proceedings have since been transferred to a different court, it must be issued in that court; or
ii
subject to subparagraph (b)(i), if it is to enforce a judgment made in Northampton County Court in respect of a designated money claim, it must be issued in accordance with section 2 of Practice Direction 70.
.
5
In Part 73, in rule 73.3(2) —
a
in subparagraph (b), for “case” substitute “event”;
b
in subparagraph (c) —
i
for “case” substitute “event”; and
ii
at the end, omit “or”;
c
in subparagraph (d), at the end, for “.” substitute “; or”; and
d
after subparagraph (d), insert —
e
the application is to enforce a judgment made in Northampton County Court in respect of a designated money claim, in which event the application must be issued in accordance with section 2 of Practice Direction 70.
.
6
In Schedule 2, in Order 27, in Rule 3 —
a
in paragraph (1), for “(2) and (3)” substitute “(2), (3) and (4)”;
b
in paragraph (2) —
i
for “If” substitute “Subject to paragraph (4), if”; and
ii
for “he” substitute “the debtor”;
c
in paragraph (3), for “Where” substitute “Subject to paragraph (4), where”; and
d
after paragraph (3), insert —
4
Where the judgment was made in Northampton County Court in respect of a designated money claim and the proceedings have not since been transferred to a different court, the application must be made in accordance with section 2 of Practice Direction 70.
.
Neuberger of Abbotsbury, M.R.
Martin Moore-Bick, L.J.
Peter Coulson, J.
Launcelot Henderson, J.
HHJ Stephen Stewart Q.C.
William Featherby Q.C.
Professor David Grant
Edward Pepperall
Katy Peters
I allow these rules
Signed by authority of the Lord Chancellor
J Djanogly
Parliamentary Under Secretary of State
Ministry of Justice
23rd February 2012 |
The Childcare (Fees) (Amendment) Regulations 2012
The Secretary of State for Education makes the following Regulations in exercise of the powers conferred by sections 89(1) and 104(2) of the Childcare Act 2006 .
Citation and commencement
1
These Regulations may be cited as the Childcare (Fees) (Amendment) Regulations 2012 and come into force on 21st September 2012.
Amendment to the Childcare (Fees) Regulations 2008
2
In regulation 10(7) of the Childcare (Fees) Regulations 2008 for “2012” substitute “2015”.
Sarah Teather
Minister of State
Department for Education
20th August 2012 |
The Council Tax Reduction Schemes (Prescribed Requirements) (England) Regulations 2012
The Secretary of State makes the following Regulations in exercise of the powers conferred by section 113(1) and (2) of, and paragraph 2 of Schedule 1A to, the Local Government Finance Act 1992 :
PART 1 General
Citation, commencement and application
1
1
These Regulations may be cited as the Council Tax Reduction Schemes (Prescribed Requirements) (England) Regulations 2012 and come into force on 27th November 2012.
2
These Regulations apply in relation to billing authorities in England.
3
These Regulations apply in relation to council tax reduction schemes made by billing authorities for financial years beginning on or after 1st April 2013.
Interpretation
2
1
In these Regulations —
“the 1992 Act ” means the Local Government Finance Act 1992;
“ Abbeyfield Home ” means an establishment run by the Abbeyfield Society including all bodies corporate or unincorporated which are affiliated to that society;
“adoption leave” means a period of absence from work on ordinary or additional adoption leave by virtue of section 75A or 75B of the Employment Rights Act 1996 ;
“ AFIP ” means an armed forces independence payment payable in accordance with an armed and reserve forces compensation scheme established under section 1(2) of the Armed Forces(Pensions and Compensation) Act 2004 ;
“alternative maximum council tax reduction” means the amount determined in accordance with Part 4 of Schedule 1 and Schedule 3;
“applicable amount” means the amount calculated in accordance with paragraph 6 of Schedule 1 and Schedule 2;
“applicant” means a person who has made an application;
“application” means an application for a reduction under a scheme;
“assessment period” means —
in relation to the earnings of a self-employed earner, the period determined in accordance with paragraph 20 of Schedule 1 for the purpose of calculating the weekly earnings of the applicant; or
in relation to any other income, the period determined in accordance with paragraph 17 of Schedule 1 for the purpose of calculating the weekly income of the applicant;
“attendance allowance” means —
an attendance allowance under Part 3 of the SSCBA ;
an increase of disablement pension under section 104 or 105 of that Act;
a payment by virtue of article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 1983 or any analogous payment; or
any payment based on need for attendance which is paid as part of a war disablement pension;
“basic rate” has the meaning given by the Income Tax Act 2007 ;
“the benefit Acts ” means the SSCBA, the Jobseekers Act 1995 , the State Pension Credit Act 2002 and the Welfare Reform Act 2007 ;
“board and lodging accommodation” means accommodation provided to a person or, if he is a member of a family, to him or any other member of his family, for a charge which is inclusive of the provision of that accommodation and at least some cooked or prepared meals which both are cooked or prepared (by a person other than the person to whom the accommodation is provided or a member of his family) and are consumed in that accommodation or associated premises;
“care home” has the meaning given by section 3 of the Care Standards Act 2000 and in Scotland means a care home service within the meaning given by section 2(3) of the Regulation of Care (Scotland) Act 2001 and in Northern Ireland means a nursing home within the meaning of Article 11 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 or a residential care home within the meaning of Article 10 of that Order;
“the Caxton Foundation ” means the charitable trust of that name established on 28th March 2011 out of funds provided by the Secretary of State for the benefit of certain persons suffering from hepatitis C and other persons eligible for payment in accordance with its provisions;
“child” means a person under the age of 16;
“child benefit” has the meaning given by section 141 of the SSCBA ;
“child tax credit” means a child tax credit under section 8 of the Tax Credits Act 2002 ;
“close relative” means a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother, sister, or if any of the preceding persons is one member of a couple, the other member of that couple;
“concessionary payment” means a payment made under arrangements made by the Secretary of State with the consent of the Treasury which is charged either to the National Insurance Fund or to a Departmental Expenditure Vote to which payments of benefit or tax credits under the benefit Acts or the Tax Credits Act 2002 are charged;
“contributory employment and support allowance” means a contributory allowance under Part 1 of the Welfare Reform Act 2007 ;
“council tax benefit” means council tax benefit under Part 7 of the SSCBA;
“couple” has the meaning given by regulation 4 of these Regulations;
“ Default Scheme Regulations ” means the Council Tax Reduction Schemes (Default Scheme) (England) Regulations 2012 ;
“designated office” means the office of an authority designated by it for the receipt of applications —
by notice upon or with a form supplied by it for the purpose of making an application;
by reference upon or with such a form to some other document from it and sent by electronic means or otherwise on application and without charge; or
by any combination of the provisions set out in paragraphs (a) and (b);
“disability living allowance” means a disability living allowance under section 71 of the SSCBA ;
“earnings” has the meaning given by paragraph 18, 20 or 21 of Schedule 1 as the case may be;
“the Eileen Trust ” means the charitable trust of that name established on 29th March 1993 out of funds provided by the Secretary of State for the benefit of persons eligible for payment in accordance with its provisions;
“electronic communication” has the same meaning as in section 15(1) of the Electronic Communications Act 2000 ;
“employed earner” is to be construed in accordance with section 2(1)(a) of the SSCBA and also includes a person who is in receipt of a payment which is payable under any enactment having effect in Northern Ireland and which corresponds to statutory sick pay or statutory maternity pay;
“enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;
“extended reduction” means a reduction under a scheme for which a person is eligible under Part 7 of Schedule 1 or paragraph 2 of Schedule 8;
“extended reduction period” means the period for which a person is in receipt of an extended reduction in accordance with paragraph 39 of Schedule 1;
“extended reduction (qualifying contributory benefits)” means a reduction under Schedule 1 by which a person is eligible pursuant to paragraph 38 or 41 of Schedule 1;
“family” has the meaning given by regulation 6 of these Regulations;
“ the Fund ” means moneys made available from time to time by the Secretary of State for the benefit of persons eligible for payment in accordance with the provisions of a scheme established by the Secretary of State on 24th April 1992 or, in Scotland, on 10th April 1992;
“guarantee credit” is to be construed in accordance with sections 1 and 2 of the State Pension Credit Act 2002 ;
“a guaranteed income payment” means a payment made under article 15(1)(c) or 29(1)(a) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 ;
“housing benefit” means housing benefit under Part 7 of the SSCBA;
“an income-based jobseeker’s allowance” and “a joint-claim jobseeker’s allowance” have the meanings given by section 1(4) of the Jobseekers Act 1995 ;
“income-related employment and support allowance” means an income-related allowance under Part 1 of the Welfare Reform Act 2007;
“independent hospital” —
in England means a hospital as defined by section 275 of the National Health Service Act 2006 that is not a health service hospital as defined by that section;
in Wales has the meaning given by section 2 of the Care Standards Act 2000 ; and
in Scotland means an independent health care service as defined by section 10F of the National Health Service (Scotland) Act 1978 ;
“the Independent Living Fund (2006)” means the Trust of that name established by a deed dated 10th April 2006 and made between the Secretary of State for Work and Pensions of the one part and Margaret Rosemary Cooper, Michael Beresford Boyall and Marie Theresa Martin of the other part;
“invalid carriage or other vehicle” means a vehicle propelled by a petrol engine or by electric power supplied for use on the road and to be controlled by the occupant;
“the London Bombings Relief Charitable Fund ” means the company limited by guarantee (number 5505072), and registered charity of that name established on 11th July 2005 for the purpose of (amongst other things) relieving sickness, disability or financial need of victims (including families or dependants of victims) of the terrorist attacks carried out in London on 7th July 2005;
“lone parent” means a person who has no partner and who is responsible for and a member of the same household as a child or young person;
“the Macfarlane (Special Payments) Trust ” means the trust of that name, established on 29th January 1990 partly out of funds provided by the Secretary of State, for the benefit of certain persons suffering from haemophilia;
“the Macfarlane (Special Payments) (No 2) Trust ” means the trust of that name, established on 3rd May 1991 partly out of funds provided by the Secretary of State, for the benefit of certain persons suffering from haemophilia and other beneficiaries;
“the Macfarlane Trust ” means the charitable trust, established partly out of funds provided by the Secretary of State to the Haemophilia Society, for the relief of poverty or distress among those suffering from haemophilia;
“main phase employment and support allowance” means an employment and support allowance where the calculation of the amount payable in respect of the applicant includes a component under section 2(1)(b) or 4(2)(b) of the Welfare Reform Act 2007 ;
“maternity leave” means a period during which a woman is absent from work because she is pregnant or has given birth to a child, and at the end of which she has a right to return to work either under the terms of her contract of employment or under Part 8 of the Employment Rights Act 1996 ;
“maximum council tax reduction amount” means the amount determined in accordance with paragraph 7 of Schedule 1.
“member of a couple” means a member of a married or unmarried couple;
“ MFET Limited ” means the company limited by guarantee (number 7121661) of that name, established for the purpose in particular of making payments in accordance with arrangements made with the Secretary of State to persons who have acquired HIV as a result of treatment by the NHS with blood or blood products;
“mobility supplement” means a supplement to which paragraph 5(1)(a)(vii) of Schedule 4 refers;
“mover” means an applicant who changes the dwelling in which the applicant is resident, and in respect of which the applicant is liable to pay council tax, from a dwelling in the area of one authority to a dwelling in the area of a second authority;
“net earnings” means such earnings as are calculated in accordance with paragraph 19 of Schedule 1;
“net profit” means such profit as is calculated in accordance with paragraph 29 of Schedule 1;
“new dwelling” means, for the purposes of the definition of “second authority” and paragraph 41 of Schedule 1, the dwelling to which an applicant has moved, or is about to move, in which the applicant will be resident;
“non-dependant” has the meaning given by regulation 9;
“occupational pension” means any pension or other periodical payment under an occupational pension scheme but does not include any discretionary payment out of a fund established for relieving hardship in particular cases;
“partner”, in relation to a person, means —
where that person is a member of a couple, the other member of that couple; or
where that person is polygamously married to two or more members of his household, any such member to whom he is married;
“paternity leave” means a period of absence from work on ordinary paternity leave by virtue of section 80A or 80B of the Employment Rights Act 1996 or on additional paternity leave by virtue of section 80AA or 80BB of that Act ;
“pension fund holder” means with respect to a personal pension scheme or an occupational pension scheme, the trustees, managers or scheme administrators, as the case may be, of the scheme concerned;
“pensionable age” has the meaning given by the rules in paragraph 1 of Schedule 4 to the Pensions Act 1995 ;
“pensioner” has the meaning given by regulation 3(a);
“person on income support” means a person in receipt of income support;
“person treated as not being in Great Britain” has the meaning given by regulation 12;
“person who is not a pensioner” has the meaning given by regulation 3(b);
“personal independence payment” has the meaning given by Part 4 of the Welfare Reform Act 2012;
“personal pension scheme” means —
a personal pension scheme as defined by section 1 of the Pension Schemes Act 1993 ;
an annuity contract or trust scheme approved under section 620 or 621 of the Income and Corporation Taxes Act 1988 or a substituted contract within the meaning of section 622(3) of that Act which is treated as having become a registered pension scheme by virtue of paragraph 1(1)(f) of Schedule 36 to the Finance Act 2004 ;
a personal pension scheme approved under Chapter 4 of Part 14 of the Income and Corporation Taxes Act 1988 which is treated as having become a registered pension scheme by virtue of paragraph 1(1)(g) of Schedule 36 to the Finance Act 2004;
“policy of life insurance” means any instrument by which the payment of money is assured on death (except death by accident only) or the happening of any contingency dependent on human life, or any instrument evidencing a contract which is subject to payment of premiums for a term dependent on human life;
“polygamous marriage” means any marriage to which regulation 5 applies;
“qualifying age for state pension credit” means (in accordance with section 1(2)(b) and (6) of the State Pension Credit Act 2002) —
in the case of a woman, pensionable age; or
in the case of a man, the age which is pensionable age in the case of a woman born on the same day as the man;
“qualifying contributory benefit” means —
severe disablement allowance;
incapacity benefit;
contributory employment and support allowance;
“qualifying income-related benefit” means —
income support;
income-based jobseeker’s allowance;
income-related employment and support allowance;
“qualifying course” means a qualifying course as defined for the purposes of Parts 2 and 4 of the Job Seeker’s Allowance Regulations 1996 ;
“qualifying person” means a person in respect of whom payment has been made from the Fund, the Eileen Trust, MFET Limited, the Skipton Fund , the Caxton Foundation or the London Bombings Relief Charitable Fund;
“reduction week” means a period of seven consecutive days beginning with a Monday and ending with a Sunday;
“relative” means a close relative, grandparent, grandchild, uncle, aunt, nephew or niece;
“relevant week”, in relation to any particular day, means the week within which the day in question falls;
“remunerative work” has the meaning given by regulation 10;
“rent” means “eligible rent” to which regulation 12 of the Housing Benefit (Persons who have acquired the qualifying age for state pension credit) Regulations 2006 refer, less any deductions in respect of non-dependants which fall to be made under paragraph 8 of Schedule 1 (non-dependant deductions);
“savings credit” is to be construed in accordance with sections 1 and 3 of the State Pension Credit Act 2002;
“second authority” means the authority to which a mover is liable to make payments for the new dwelling;
“self-employed earner” is to be construed in accordance with section 2(1)(b) of the SSCBA;
“service user group” means a group of individuals that is consulted by or on behalf of —
a Health Board, Special Health Board or the Agency in consequence of a function under section 2B of the National Health Service (Scotland) Act 1978 ,
a landlord authority in consequence of a function under section 105 of the Housing Act 1985 ,
a public authority in Northern Ireland in consequence of a function under section 49A of the Disability Discrimination Act 1995 ,
a public authority in consequence of a function relating to disability under section 149 of the Equality Act 2010 ;
a best value authority in consequence of a function under section 3 of the Local Government Act 1999 ,
a local authority landlord or registered social landlord in consequence of a function under section 53 of the Housing (Scotland) Act 2001 ,
a relevant English body or a relevant Welsh body in consequence of a function under section 242 of the National Health Service Act 2006 ,
a Local Health Board in consequence of a function under section 183 of the National Health Service (Wales) Act 2006 ,
the Care Quality Commission in consequence of a function under section 4 or 5 of the Health and Social Care Act 2008 ,
the regulator or a private registered provider of social housing in consequence of a function under section 98, 193 or 196 of the Housing and Regeneration Act 2008 , or
a public or local authority in Great Britain in consequence of a function conferred under any other enactment,
for the purposes of monitoring and advising on a policy of that body or authority which affects or may affect persons in the group, or of monitoring or advising on services provided by that body or authority which are used (or may potentially be used) by those persons;
“single applicant” means an applicant who neither has a partner nor is a lone parent;
“the Skipton Fund” means the ex-gratia payment scheme administered by the Skipton Fund Limited, incorporated on 25th March 2004, for the benefit of certain persons suffering from hepatitis C and other persons eligible for payment in accordance with the scheme’s provisions;
“sports award” means an award made by one of the Sports Councils named in section 23(2) of the National Lottery etc. Act 1993 out of sums allocated to it for distribution under that section;
“the SSCBA” means the Social Security Contributions and Benefits Act 1992 ;
“state pension credit” means state pension credit under the State Pension Credit Act 2002;
“student” means a person, other than a person in receipt of a training allowance, who is attending or undertaking —
a course of study at an educational establishment; or
a qualifying course;
“tax year” means a period beginning with 6th April in one year and ending with 5th April in the next;
“training allowance” means an allowance (whether by way of periodical grants or otherwise) payable —
out of public funds by a Government department or by or on behalf of the Secretary of State, Skills Development Scotland, Scottish Enterprise or Highlands and Islands Enterprise, the Chief Executive of Skills Funding or the Welsh Ministers;
to a person for his maintenance or in respect of a member of his family; and
for the period, or part of the period, during which he is following a course of training or instruction provided by, or in pursuance of arrangements made with, that department or approved by that department in relation to him or so provided or approved by or on behalf of the Secretary of State, Skills Development Scotland, Scottish Enterprise or Highlands and Islands Enterprise or the Welsh Ministers,
but it does not include an allowance paid by any Government department to or in respect of a person by reason of the fact that he is following a course of full-time education, other than under arrangements made under section 2 of the Employment and Training Act 1973 , or is training as a teacher;
“ the Trusts ” (except where the context otherwise requires) means the Macfarlane Trust, the Macfarlane (Special Payments) Trust and the Macfarlane (Special Payments) (No 2) Trust and “Trustees” is to be construed accordingly;
“universal credit” has the meaning given by section 1 of the Welfare Reform Act 2012 ;
“voluntary organisation” means a body, other than a public or local authority, the activities of which are carried on otherwise than for profit;
“war disablement pension” means any retired pay or pension or allowance payable in respect of disablement under an instrument specified in section 639(2) of the Income Tax (Earnings and Pensions) Act 2003 ;
“war pension” means a war disablement pension, a war widow’s pension or a war widower’s pension;
“war widow’s pension” means any pension or allowance payable to a woman as a widow under an instrument specified in section 639(2) of the Income Tax (Earnings and Pensions) Act 2003 in respect of the death or disablement of any person;
“war widower’s pension” means any pension or allowance payable to a man as a widower or to a surviving civil partner under an instrument specified in section 639(2) of the Income Tax (Earnings and Pensions) Act 2003 in respect of the death or disablement of any person;
“water charges” means —
as respects England and Wales, any water and sewerage charges under Chapter 1 of Part 5 of the Water Industry Act 1991 ,
as respects Scotland, any water and sewerage charges established by Scottish Water under a charges scheme made under section 29A of the Water Industry (Scotland) Act 2002 ,
in so far as such charges are in respect of the dwelling which a person occupies as his home;
“working tax credit” means a working tax credit under section 10 of the Tax Credits Act 2002;
“young person” means a person who falls within the definition of qualifying young person in section 142 of the SSCBA .
2
In these Regulations, where an amount is to be rounded to the nearest penny, a fraction of a penny must be disregarded if it is less than half a penny and must otherwise be treated as a whole penny.
3
For the purpose of these Regulations, a person is on an income-based jobseeker’s allowance on any day in respect of which an income-based jobseeker’s allowance is payable to him and on any day —
a
in respect of which he satisfies the conditions for entitlement to an income-based jobseeker’s allowance but where the allowance is not paid because of a reduction in accordance with section 19 or 19A or regulations made under section 17A or 19B of the Jobseekers Act 1995 (circumstances in which a jobseeker’s allowance is not payable);
b
which is a waiting day for the purposes of paragraph 4 of Schedule 1 to that Act and which falls immediately before a day in respect of which an income-based jobseeker’s allowance is payable to him or would be payable to him but for section 19 or 19A or regulations made under section 17A or 19B of that Act; or
c
in respect of which an income-based jobseeker’s allowance would be payable but for a restriction imposed pursuant to section 6B, 7, 8 or 9 of the Social Security Fraud Act 2001 (loss of benefit provisions).
4
For the purposes of these Regulations, a person is on an income-related employment and support allowance on any day in respect of which an income-related employment and support allowance is payable to him and on any day —
a
in respect of which he satisfies the conditions for entitlement to an income-related employment and support allowance but where the allowance is not paid in accordance with section 18 of the Welfare Reform Act 2007 (disqualification); or
b
which is a waiting day for the purposes of paragraph 2 of Schedule 2 to that Act and which falls immediately before a day in respect of which an income-related employment and support allowance is payable to him or would be payable to him but for section 18 of that Act.
5
For the purposes of these Regulations, two persons shall be taken to be estranged only if their estrangement constitutes a breakdown of the relationship between them.
6
In these Regulations, references to any person in receipt of state pension credit includes a person who would be in receipt of state pension credit but for regulation 13 of the State Pension Credit Regulations 2002 (small amounts of state pension credit).
7
In these Regulations, references to a person in class A, B or C (as the case may be) is a reference to class A, B or C described in paragraphs 2 to 4 of Schedule 1.
Meaning of “pensioner” and “person who is not a pensioner”
3
In these Regulations a person is —
a
a “pensioner” if —
i
he has attained the qualifying age for state pension credit; and
ii
he is not, or, if he has a partner, his partner is not —
aa
a person on income support, on an income-based jobseeker’s allowance or on an income-related employment and support allowance; or
bb
a person with an award of universal credit; and
b
a “person who is not a pensioner” if —
i
he has not attained the qualifying age for state pension credit; or
ii
he has attained the qualifying age for state pension credit and he, or if he has a partner, his partner, is —
aa
a person on income support, on income-based jobseeker’s allowance or an income-related employment and support allowance; or
bb
a person with an award of universal credit.
Meaning of “couple”
4
1
In these Regulations “couple” means —
a
a man and woman who are married to each other and are members of the same household;
b
a man and woman who are not married to each other but are living together as husband and wife;
c
two people of the same sex who are civil partners of each other and are members of the same household; or
d
two people of the same sex who are not civil partners of each other but are living together as if they were civil partners.
2
Two people of the same sex are to be treated as living together as if they were civil partners if, and only if, they would be treated as living together as husband and wife were they of opposite sexes.
Polygamous marriages
5
1
This regulation applies to any case where —
a
a person is a husband or wife by virtue of a marriage entered into under a law which permits polygamy; and
b
either party to the marriage has for the time being any spouse additional to the other party.
2
For the purposes of regulation 4 neither party to the marriage is to be taken to be a member of a couple.
Meaning of “family”
6
1
In these Regulations “family” means —
a
a couple;
b
a couple and a member of the same household for whom one of them is or both are responsible and who is a child or a young person; or
c
a person who is not a member of a couple and a member of the same household for whom that person is responsible and who is a child or a young person.
2
The references to a child or young person in sub-paragraph (1)(b) and (c) include a child or young person in respect of whom section 145A of the SSCBA applies for the purposes of entitlement to child benefit, but only for the period prescribed under section 145A(1).
3
The references to a young person in paragraph (1)(b) and (c) do not include a young person who is —
a
on income support, an income-based jobseeker’s allowance or an income-related employment and support allowance; or
b
a person to whom section 6 of the Children (Leaving Care) Act 2000 (exclusion from benefits) applies.
Circumstances in which a person is to be treated as responsible or not responsible for another
7
1
A person is to be treated as responsible for a child or young person who is normally living with him, including a child or young person to whom regulation 6(2) applies.
2
Where a child or young person spends equal amounts of time in different households, or where there is a question as to which household he is living in, the child or young person must be treated for the purposes of paragraph (1) as normally living with —
a
the person who is receiving child benefit in respect of that child or young person, or
b
if there is no such person —
i
where only one claim for child benefit has been made in respect of him, the person who made that claim, or
ii
in any other case the person who has the primary responsibility for him.
3
For the purposes of these Regulations a child or young person is the responsibility of only one person in any reduction week and any person other than the one treated as responsible for the child or young person under this regulation is to be treated as not so responsible.
Households
8
1
Subject to paragraphs (2) and (3), an applicant and any partner and, where the applicant or his partner is treated (by virtue of regulation 7) as responsible for a child or young person, that child or young person and any child of that child or young person, are to be treated as members of the same household notwithstanding that any of them is temporarily absent from that household.
2
A child or young person is not to be treated as a member of the applicant’s household where he is —
a
placed with the applicant or his partner by a local authority under section 22C or 23(2)(a) of the Children Act 1989 or by a voluntary organisation under section 59(1)(a) of that Act, or in Scotland boarded out with the applicant or his partner under a relevant enactment; or
b
placed, or in Scotland boarded out, with the applicant or his partner prior to adoption; or
c
placed for adoption with the applicant or his partner in accordance with the Adoption and Children Act 2002 , the Adoption Agencies (Scotland) Regulations 2009 or the Adoption (Northern Ireland) Order 1987 .
3
Subject to paragraph (4), paragraph (1) does not apply to a child or young person who is not living with the applicant and who —
a
is being looked after by, or in Scotland is in the care of, a local authority under a relevant enactment; or
b
has been placed, or in Scotland boarded out, with a person other than the applicant prior to adoption; or
c
has been placed for adoption in accordance with the Adoption and Children Act 2002 or the Adoption Agencies (Scotland) Regulations 2009.
4
An authority must treat a child or young person to whom paragraph (3)(a) applies as being a member of the applicant’s household in any reduction week where —
a
that child or young person lives with the applicant for part or all of that reduction week; and
b
the authority considers that it is reasonable to do so taking into account the nature and frequency of that child’s or young person’s visits.
5
In this regulation “relevant enactment” means —
a
the Army Act 1955 ;
b
the Air Force Act 1955 ;
c
the Naval Discipline Act 1957 ;
d
the Matrimonial Proceedings (Children) Act 1958 ;
e
the Social Work (Scotland) Act 1968 ;
f
the Family Law Reform Act 1969 ;
g
the Children and Young Persons Act 1969 ;
h
the Matrimonial Causes Act 1973 ;
i
the Children Act 1975 ;
j
the Domestic Proceedings and Magistrates’ Courts Act 1978 ;
k
the Adoption and Children (Scotland) Act 2007 ;
l
the Family Law Act 1986 ;
m
the Children Act 1989 ;
n
the Children (Scotland) Act 1995 ; and
o
the Legal Aid, Sentencing and Punishment of Offenders Act 2012 .
Non-dependants
9
1
In these Regulations, “non-dependant” means any person, except someone to whom paragraph (2) applies, who normally resides with an applicant or with whom an applicant normally resides.
2
This paragraph applies to —
a
any member of the applicant’s family;
b
if the applicant is polygamously married, any partner of his and any child or young person who is a member of his household and for whom he or one of his partners is responsible;
c
a child or young person who is living with the applicant but who is not a member of his household by virtue of regulation 8 (households);
d
subject to paragraph (3), any person who, with the applicant, is jointly and severally liable to pay council tax in respect of a dwelling for any day under section 6 or 7 of the 1992 Act (persons liable to pay council tax);
e
subject to paragraph (3), any person who is liable to make payments on a commercial basis to the applicant or the applicant’s partner in respect of the occupation of the dwelling;
f
a person who lives with the applicant in order to care for him or a partner of his and who is engaged by a charitable or voluntary organisation which makes a charge to the applicant or his partner for the services provided by that person.
3
Excepting persons to whom sub-paragraph (2)(a) to (c) and (f) refer, a person to whom any of the following paragraphs applies is a non-dependant —
a
a person who resides with the person to whom he is liable to make payments in respect of the dwelling and either —
i
that person is a close relative of his or his partner; or
ii
the tenancy or other agreement between them is other than on a commercial basis;
b
a person whose liability to make payments in respect of the dwelling appears to the authority to have been created to take advantage of a scheme except someone who was, for any period within the eight weeks prior to the creation of the agreement giving rise to the liability to make such payments, otherwise liable to make payments of rent in respect of the same dwelling;
c
a person who becomes jointly and severally liable with the applicant for council tax in respect of a dwelling and who was, at any time during the period of eight weeks prior to his becoming so liable, a non-dependant of one or more of the other residents in that dwelling who are so liable for the tax, unless the change giving rise to the new liability was not made to take advantage of a scheme.
Remunerative work
10
1
Subject to the following provisions of this regulation, a person must be treated for the purposes of these Regulations as engaged in remunerative work if he is engaged, or, where his hours of work fluctuate, he is engaged on average, for not less than 16 hours a week, in work for which payment is made or which is done in expectation of payment.
2
Subject to sub-paragraph (3), in determining the number of hours for which a person is engaged in work where his hours of work fluctuate, regard must be had to the average of hours worked over —
a
if there is a recognisable cycle of work, the period of one complete cycle (including, where the cycle involves periods in which the person does no work, those periods but disregarding any other absences);
b
in any other case, the period of 5 weeks immediately prior to the date of application, or such other length of time as may, in the particular case, enable the person’s weekly average hours of work to be determined more accurately.
3
Where, for the purposes of paragraph (2)(a), a person’s recognisable cycle of work at a school, other educational establishment or other place of employment is one year and includes periods of school holidays or similar vacations during which he does not work, those periods and any other periods not forming part of such holidays or vacations during which he is not required to work must be disregarded in establishing the average hours for which he is engaged in work.
4
Where no recognisable cycle has been established in respect of a person’s work, regard must be had to the number of hours or, where those hours will fluctuate, the average of the hours, which he is expected to work in a week.
5
A person must be treated as engaged in remunerative work during any period for which he is absent from work referred to in paragraph (1) if the absence is either without good cause or by reason of a recognised, customary or other holiday.
6
A person on income support, an income-based jobseeker’s allowance or an income-related employment and support allowance for more than 3 days in any reduction week must be treated as not being in remunerative work in that week.
7
A person must not be treated as engaged in remunerative work on any day on which the person is on maternity leave, paternity leave or adoption leave, or is absent from work because he is ill.
8
A person must not be treated as engaged in remunerative work on any day on which he is engaged in an activity in respect of which —
a
a sports award has been made, or is to be made, to him; and
b
no other payment is made or is expected to be made to him.
PART 2 Prescribed classes of persons
Pensioners
11
1
Subject to paragraph (2), the classes of pensioners described in paragraph 1 of Schedule 1 are classes of person prescribed for the purposes of paragraph 2(9)(b) of Schedule 1A to the 1992 Act and which must be included in an authority’s scheme.
2
Pensioners whose capital exceeds £16,000 are a class of person prescribed for the purposes of that paragraph and which must not be included in an authority’s scheme.
3
Capital for the purposes of paragraph (2) is to be calculated in accordance with Part 6 of Schedule 1.
Persons treated as not being in Great Britain
12
1
Persons treated as not being in Great Britain are a class of person prescribed for the purposes of paragraph 2(9)(b) of Schedule 1A to the 1992 Act and which must not be included in an authority’s scheme.
2
Except where a person falls within paragraph (5) or (6), a person is to be treated as not being in Great Britain if the person is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
3
A person must not be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless the person has a right to reside in one of those places.
4
For the purposes of paragraph (3), a right to reside does not include a right which exists by virtue of, or in accordance with —
a
regulation 13 of the EEA Regulations or Article 6 of Council Directive 2004/38/ EC ; or
b
regulation 15A(1) of the EEA Regulations , but only in a case where the right exists under that regulation because the applicant satisfies the criteria in paragraph (4A) of that regulation or Article 20 of the Treaty on the Functioning of the European Union (in a case where the right to reside arises because a British citizen would otherwise be deprived of the genuine enjoyment of their rights as a European Union citizen) .
5
A person falls within this paragraph if the person is —
a
a qualified person for the purposes of regulation 6 of the EEA Regulations as a worker or a self-employed person;
b
a family member of a person referred to in sub-paragraph (a) within the meaning of regulation 7(1)(a), (b) or (c) of the EEA Regulations;
c
a person who has a right to reside permanently in the United Kingdom by virtue of regulation 15(1)(c), (d) or (e) of the EEA Regulations;
d
a person recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;
e
a person granted limited leave to enter or remain in the United Kingdom outside the provisions of the rules made under section 3(2) of the Immigration Act 1971 on the rejection of their claim for asylum;
f
a person who has humanitarian protection granted under those rules; or
g
a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom.
6
A person falls within this paragraph if the person is a Crown servant or member of Her Majesty’s forces posted overseas.
7
A person mentioned in sub-paragraph (6) is posted overseas if the person is performing overseas the duties of a Crown servant or member of Her Majesty’s forces and was, immediately before the posting or the first of consecutive postings, habitually resident in the United Kingdom.
8
In this regulation —
“claim for asylum” has the same meaning as in section 94(1) of the Immigration and Asylum Act 1999 ;
“Crown servant” means a person holding an office or employment under the Crown;
“EEA Regulations” means the Immigration (European Economic Area) Regulations 2006; and
“Her Majesty’s forces” has the same meaning as in the Armed Forces Act 2006 .
Persons subject to immigration control
13
1
Persons subject to immigration control are a class of person prescribed for the purposes of paragraph 2(9)(b) of Schedule 1A to the 1992 Act and which must not be included in an authority’s scheme.
2
“Person subject to immigration control” has the same meaning as in section 115(9) of the Immigration and Asylum Act 1999.
PART 3 Matters that must be included in an authority’s scheme
Provision for pensioners
14
1
A scheme must make provision in respect of pensioners.
2
Schedules 1 to 6, which contain those matters that must be included in a scheme in respect of pensioners, have effect.
Provision for all applicants
15
1
A scheme must include the provisions set out in Schedules 7 and 8.
2
The provisions mentioned in paragraph (1) must apply to all applicants (both persons who are pensioners and persons who are not pensioners) unless otherwise provided.
Signed by authority of the Secretary of State for Communities and Local Government
Brandon Lewis
Parliamentary Under Secretary of State
Department for Communities and Local Government
16th November 2012
SCHEDULE 1
Pensioners: matters that must be included in an authority’s scheme
Regulation 14(2)
PART 1
Classes of persons entitled to a reduction under an authority’s scheme
1
1
The classes of pensioners described in paragraphs 2 to 4 are entitled to a reduction under an authority’s scheme.
2
In those paragraphs, references to an applicant’s income or capital include, in a case where that income or capital cannot accurately be determined, references to the applicant’s estimated income or capital.
Class A: pensioners whose income is less than the applicable amount
2
On any day class A consists of any person who is a pensioner —
a
who is for that day liable to pay council tax in respect of a dwelling of which he is a resident ;
b
who, subject to paragraph 5 (periods of absence from a dwelling), is not absent from the dwelling throughout the day;
c
in respect of whom a maximum council tax reduction amount can be calculated;
d
who does not fall within a class of persons prescribed for the purposes of paragraph 2(9) of Schedule 1A to the 1992 Act as a class of person which must not be included in an authority’s scheme;
e
whose income (if any) for the relevant week does not exceed his applicable amount; and
f
who has made an application.
Class B: pensioners whose income is greater than the applicable amount
3
On any day class B consists of any person who is a pensioner —
a
who is for that day liable to pay council tax in respect of a dwelling of which he is a resident;
b
who, subject to paragraph 5, is not absent from the dwelling throughout the day;
c
in respect of whom a maximum council tax reduction amount can be calculated;
d
who does not fall within a class of person prescribed for the purposes of paragraph 2(9) of Schedule 1A to the 1992 Act as a class of person which must not be included in an authority’s scheme;
e
whose income for the relevant week is greater than his applicable amount;
f
in respect of whom amount A exceeds amount B where —
i
amount A is the maximum council tax reduction in respect of the day in the applicant’s case; and
ii
amount B is 2 6/7 per cent of the difference between his income for the relevant week and his applicable amount; and
g
who has made an application.
Class C: alternative maximum council tax reduction
4
1
On any day class C consists of any person who is a pensioner —
a
who is for that day liable to pay council tax in respect of a dwelling of which he is a resident;
b
who, subject to paragraph 5, is not absent from the dwelling throughout the day;
c
in respect of whom a maximum council tax reduction amount can be calculated;
d
who does not fall within a class of person prescribed for the purposes of paragraph 2(9) of Schedule 1A to the 1992 Act as a class of person which must not be included in an authority’s scheme;
e
who has made an application; and
f
in relation to whom the condition in sub-paragraph (2) is met.
2
The condition referred to in sub-paragraph (1)(f) is that no other resident of the dwelling is liable to pay rent to the applicant in respect of the dwelling and there is an alternative maximum council tax reduction in respect of the day in the case of that person which is derived from the income, or aggregate incomes, of one or more residents to whom this sub-paragraph applies.
3
Sub-paragraph (2) applies to any other resident of the dwelling who —
a
is not a person who, in accordance with Schedule 1 to the 1992 Act, falls to be disregarded for the purposes of discount;
b
is not a person who is liable for council tax solely in consequence of the provisions of section 9 of the 1992 Act (spouse’s or civil partner’s joint and several liability for tax);
c
is not a person who is residing with a couple or with the members of a polygamous marriage where the applicant is a member of that couple or of that marriage and —
i
in the case of a couple, neither member of that couple is a person who, in accordance with Schedule 1 to the 1992 Act, falls to be disregarded for the purposes of discount; or
ii
in the case of a polygamous marriage, two or more members of that marriage are not persons who, in accordance with Schedule 1 to the 1992 Act, fall to be disregarded for the purposes of discount;
d
is not a person who jointly with the applicant falls within the same paragraph of section 6(2)(a) to (e) of the 1992 Act (persons liable to pay council tax) as applies in the case of the applicant; or
e
is not a person who is residing with two or more persons both or all of whom fall within the same paragraph of section 6(2)(a) to (e) of the 1992 Act where two or more of those persons are not persons who, in accordance with Schedule 1 to the 1992 Act, fall to be disregarded for the purposes of discount.
Periods of absence from a dwelling
5
1
A person is not absent from a dwelling in relation to any day which falls within a period of temporary absence from that dwelling.
2
In sub-paragraph (1), a “period of temporary absence” means —
a
a period of absence not exceeding 13 weeks, beginning with the first whole day on which a person resides in residential accommodation where and for so long as —
i
the person resides in that accommodation;
ii
the part of the dwelling in which he usually resided is not let or sub-let; and
iii
that period of absence does not form part of a longer period of absence from the dwelling of more than 52 weeks,
where he has entered the accommodation for the purpose of ascertaining whether it suits his needs and with the intention of returning to the dwelling if it proves not to suit his needs;
b
a period of absence not exceeding 13 weeks, beginning with the first whole day of absence from the dwelling, where and for so long as —
i
the person intends to return to the dwelling;
ii
the part of the dwelling in which he usually resided is not let or sub-let; and
iii
that period is unlikely to exceed 13 weeks; and
c
a period of absence not exceeding 52 weeks, beginning with the first whole day of that absence, where and for so long as —
i
the person intends to return to the dwelling;
ii
the part of the dwelling in which he usually resided is not let or sub-let;
iii
the person is a person to whom sub-paragraph (3) applies; and
iv
the period of absence is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely substantially to exceed that period.
3
This sub-paragraph applies to a person who —
a
is detained in custody on remand pending trial or required, as a condition of bail, to reside —
i
in a dwelling, other than the dwelling referred to in sub-paragraph (1), or
ii
in premises approved under section 13 of the Offender Management Act 2007 ,
or is detained in custody pending sentence upon conviction;
b
is resident in a hospital or similar institution as a patient;
c
is undergoing, or whose partner or dependent child is undergoing, in the United Kingdom or elsewhere, medical treatment, or medically approved convalescence, in accommodation other than residential accommodation;
d
is following, in the United Kingdom or elsewhere, a training course;
e
is undertaking medically approved care of a person residing in the United Kingdom or elsewhere;
f
is undertaking the care of a child whose parent or guardian is temporarily absent from the dwelling normally occupied by that parent or guardian for the purpose of receiving medically approved care or medical treatment;
g
is, in the United Kingdom or elsewhere, receiving medically approved care provided in accommodation other than residential accommodation;
h
is a student;
i
is receiving care provided in residential accommodation and is not a person to whom sub-paragraph (2)(a) applies; or
j
has left the dwelling he resides in through fear of violence, in that dwelling, or by a person who was formerly a member of the family of the person first mentioned.
4
This sub-paragraph applies to a person who is —
a
detained in custody pending sentence upon conviction or under a sentence imposed by a court (other than a person who is detained in hospital under the provisions of the Mental Health Act 1983 , or, in Scotland, under the provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995 or in Northern Ireland under Article 4 or 12 of the Mental Health (Northern Ireland) Order 1986 ); and
b
on temporary release from detention in accordance with Rules made under the provisions of the Prison Act 1952 or the Prisons (Scotland) Act 1989 .
5
Where sub-paragraph (4) applies to a person, then, for any day when he is on temporary release —
a
if such temporary release was immediately preceded by a period of temporary absence under sub-paragraph (2)(b) or (c), he must be treated, for the purposes of sub-paragraph (1), as if he continues to be absent from the dwelling, despite any return to the dwelling;
b
for the purposes of sub-paragraph (3)(a), he must be treated as if he remains in detention;
c
if he does not fall within paragraph (a), he is not to be considered to be a person who is liable to pay council tax in respect of a dwelling of which he is a resident.
6
In this paragraph —
“medically approved” means certified by a medical practitioner;
“patient” means a person who is undergoing medical or other treatment as an in-patient in any hospital or similar institution;
“residential accommodation” means accommodation which is provided in —
a care home;
an independent hospital;
an Abbeyfield Home; or
an establishment managed or provided by a body incorporated by Royal Charter or constituted by Act of Parliament other than a local social services authority;
“training course” means a course of training or instruction provided wholly or partly by or on behalf of or in pursuance of arrangements made with, or approved by or on behalf of, Skills Development Scotland, Scottish Enterprise, Highlands and Islands Enterprise, a government department or the Secretary of State.
PART 2 Applicable amounts for the purposes of calculating eligibility for a reduction under an authority’s scheme and amount of reduction
Applicable amounts
6
1
The applicable amount for a pensioner for a week is the aggregate of such of the following amounts as apply in his case —
a
an amount in respect of his personal allowance, determined in accordance with paragraph 1 of Schedule 2 to these Regulations;
b
an amount in respect of any child or young person who is a member of his family, determined in accordance with paragraph 2 of that Schedule;
c
if he is a member of a family of which at least one member is a child or young person, an amount determined in accordance with paragraph 3 of that Schedule (family premium);
d
the amount of any premiums which may be applicable to him, determined in accordance with Parts 3 and 4 of that Schedule (premiums).
2
In Schedule 2 —
“additional spouse” means a spouse by the party to the marriage who is additional to the party to the marriage;
“patient” means a person (other than a person who is serving a sentence of imprisonment or detention in a youth custody institution) who is regarded as receiving free in-patient treatment within the meaning of regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005 .
PART 3 Maximum council tax reduction for the purposes of calculating eligibility for a reduction under an authority’s scheme and amount of reduction
Maximum council tax reduction amount under an authority’s scheme
7
1
Subject to sub-paragraphs (2) to (4), a person’s maximum council tax reduction amount in respect of a day is 100 per cent of the amount A/B where —
a
A is the amount set by the authority as the council tax for the relevant financial year in respect of the dwelling in which he is a resident and for which he is liable, subject to any discount which may be appropriate to that dwelling under the 1992 Act; and
b
B is the number of days in that financial year,
less any deductions in respect of non-dependants which fall to be made under paragraph 8 (non-dependant deductions).
2
In calculating a person’s maximum council tax reduction under the authority’s scheme any reduction in the amount that person is liable to pay in respect of council tax, which is made in consequence of any enactment in, or made under, the 1992 Act (other than a reduction under that authority’s scheme), is to be taken into account.
3
Subject to sub-paragraph (4), where an applicant is jointly and severally liable for council tax in respect of a dwelling in which he is resident with one or more other persons in determining the maximum council tax reduction in his case in accordance with sub-paragraph (1), the amount A is to be divided by the number of persons who are jointly and severally liable for that tax.
4
Where an applicant is jointly and severally liable for council tax in respect of a dwelling with only his partner, sub-paragraph (3) does not apply in his case.
5
The reference in sub-paragraph (3) to a person with whom an applicant is jointly and severally liable for council tax does not include a student to whom paragraph 75(1) of the Schedule to the Default Scheme Regulations applies.
6
In this paragraph “relevant financial year” means, in relation to any particular day, the financial year within which the day in question falls.
Non-dependant deductions
8
1
Subject to the following provisions of this paragraph, the non-dependant deductions in respect of a day referred to in paragraph 7 are —
a
in respect of a non-dependant aged 18 or over in remunerative work, £9.90 x 1/7;
b
in respect of a non-dependant aged 18 or over to whom paragraph (a) does not apply, £3.30 x 1/7.
2
In the case of a non-dependant aged 18 or over to whom sub-paragraph (1)(a) applies, where it is shown to the appropriate authority that his normal gross weekly income is —
a
less than £183.00, the deduction to be made under this paragraph is that specified in sub-paragraph (1)(b);
b
not less than £183.00 but less than £316.00, the deduction to be made under this paragraph is £6.55;
c
not less than £316.00 but less than £394.00, the deduction to be made under this paragraph is £8.25.
3
Only one deduction is to be made under this paragraph in respect of a couple or, as the case may be, members of a polygamous marriage and, where, but for this paragraph, the amount that would fall to be deducted in respect of one member of a couple or polygamous marriage is higher than the amount (if any) that would fall to be deducted in respect of the other, or any other, member, the higher amount shall be deducted.
4
In applying the provisions of sub-paragraph (2) in the case of a couple or, as the case may be, a polygamous marriage, regard must be had, for the purpose of that sub-paragraph, to the couple’s or, as the case may be, all members of the polygamous marriage’s joint weekly gross income.
5
Where in respect of a day —
a
a person is a resident in a dwelling but is not himself liable for council tax in respect of that dwelling and that day;
b
other residents in that dwelling (the liable persons) have joint and several liability for council tax in respect of that dwelling and that day otherwise than by virtue of section 9 of the 1992 Act (liability of spouses and civil partners); and
c
the person to whom paragraph (a) refers is a non-dependant of two or more of the liable persons,
the deduction in respect of that non-dependant must be apportioned equally between those liable persons.
6
No deduction is to be made in respect of any non-dependants occupying an applicant’s dwelling if the applicant or his partner is —
a
blind or treated as blind by virtue of sub-paragraphs (12) or (13) below; or
b
receiving in respect of himself either —
i
attendance allowance, or would be receiving that allowance but for —
aa
a suspension of benefit in accordance with regulations under section 113(2) of the SSCBA ; or
bb
an abatement as a result of hospitalisation; or
ii
the care component of the disability living allowance, or would be receiving that component, but for —
aa
a suspension of benefit in accordance with regulations under section 113(2) of the SSCBA; or
bb
an abatement as a result of hospitalisation; or
iii
the daily living component of personal independence payment, or would be receiving that allowance but for a suspension of benefit in accordance with regulations under section 86 of the Welfare Reform Act 2012 (hospital in-patients); or
iv
an AFIP, or would be receiving that payment but for a suspension of it in accordance with any terms of the armed and reserve forces compensation scheme which allow for a suspension because a person is undergoing medical treatment in a hospital or similar institution.
7
No deduction is to be made in respect of a non-dependant if —
a
although he resides with the applicant, it appears to the authority that his normal home is elsewhere; or
b
he is in receipt of a training allowance paid in connection with youth training established under section 2 of the Employment and Training Act 1973 or section 2 of the Enterprise and New Towns (Scotland) Act 1990 ; or
c
he is a full-time student within the meaning of Part 11 of the Schedule to the Default Scheme Regulations (students); or
d
he is not residing with the applicant because he has been a patient for a period in excess of 52 weeks, and for these purposes —
i
“patient” has the meaning given in paragraph 5(6) of this Schedule, and
ii
where a person has been a patient for two or more distinct periods separated by one or more intervals each not exceeding 28 days, he is to be treated as having been a patient continuously for a period equal in duration to the total of those distinct periods.
8
No deduction is to be made in respect of a non-dependant —
a
who is on income support, state pension credit, an income-based jobseeker’s allowance or an income-related employment and support allowance; or
b
to whom Schedule 1 to the 1992 Act applies (persons disregarded for purposes of discount) but this paragraph does not apply to a non-dependant who is a student to whom paragraph 4 of that Schedule refers.
9
In the application of sub-paragraph (2) there is to be disregarded from the non-dependent’s weekly gross income —
a
any attendance allowance, disability living allowance, personal independence payment or AFIP received by him;
b
any payment made under or by the Trusts, the Fund, the Eileen Trust, MFET Limited, the Skipton Fund, the Caxton Foundation or the Independent Living Fund (2006) which are paid as income in kind (see sub-paragraph (13)); and
c
the payments set out in sub-paragraph (10).
10
The payments mentioned in sub-paragraph (9) are —
a
any payment made under or by the Trusts, the Fund, the Eileen Trust, MFET Limited, the Skipton Fund, the Caxton Foundation or the Independent Living Fund (2006);
b
any payment by or on behalf of a person who is suffering or who suffered from haemophilia or who is or was a qualifying person, which derives from a payment made under or by any of the Trusts to which paragraph (a) refers and which is made to or for the benefit of —
i
that person’s partner or former partner from whom he is not, or where that person has died was not, estranged or divorced or with whom he has formed a civil partnership that has not been dissolved or, where that person has died, had not been dissolved at the time of that person’s death;
ii
any child who is a member of that person’s family or who was such a member and who is a member of the applicant’s family; or
iii
any young person who is a member of that person’s family or who was such a member and who is a member of the applicant’s family;
c
any payment by or on behalf of the partner or former partner of a person who is suffering or who suffered from haemophilia or who is or was a qualifying person provided that the partner or former partner and that person are not, or if either of them has died were not, estranged or divorced or, where the partner or former partner and that person have formed a civil partnership, the civil partnership has not been dissolved or, if either of them has died, had not been dissolved at the time of the death, which derives from a payment made under or by any of the Trusts to which paragraph (a) refers and which is made to or for the benefit of —
i
the person who is suffering from haemophilia or who is a qualifying person;
ii
any child who is a member of that person’s family or who was such a member and who is a member of the applicant’s family; or
iii
any young person who is a member of that person’s family or who was such a member and who is a member of the applicant’s family;
d
any payment by a person who is suffering from haemophilia or who is a qualifying person, which derives from a payment under or by any of the Trusts to which paragraph (a) refers, where —
i
that person has no partner or former partner from whom he is not estranged or divorced or with whom he has formed a civil partnership that has not been dissolved, nor any child or young person who is or had been a member of that person’s family; and
ii
the payment is made either —
aa
to that person’s parent or step-parent, or
bb
where that person at the date of the payment is a child, a young person or a student who has not completed his full-time education and has no parent or step-parent, to his guardian,
but only for a period from the date of the payment until the end of two years from that person’s death;
e
any payment out of the estate of a person who suffered from haemophilia or who was a qualifying person, which derives from a payment under or by any of the Trusts to which paragraph (a) refers, where —
i
that person at the date of his death (the relevant date) had no partner or former partner from whom he was not estranged or divorced or with whom he has formed a civil partnership that has not been dissolved, nor any child or young person who was or had been a member of his family; and
ii
the payment is made either —
aa
to that person’s parent or step-parent, or
bb
where that person at the relevant date was a child, a young person or a student who had not completed his full-time education and had no parent or step-parent, to his guardian,
but only for a period of two years from the relevant date;
f
in the case of a person to whom or for whose benefit a payment referred to in this sub-paragraph is made, any income which derives from any payment of income or capital made under or deriving from any of the Trusts.
11
An applicant, or as the case may be, his partner is blind or treated as blind for the purposes of sub-paragraph (6)(a) if the applicant or his partner is blind and in consequence registered in a register compiled by a local authority under section 29 of the National Assistance Act 1948 (welfare services) or, in Scotland, has been certified as blind and in consequence he is registered in a register maintained by or on behalf of a council constituted under section 2 of the Local Government (Scotland) Act 1994 .
12
For the purposes of sub-paragraph (11), a person who has ceased to be registered as blind on regaining his eyesight is nevertheless to be treated as blind for a period of 28 weeks following the date on which he ceased to be so registered.
13
The reference in sub-paragraph (9)(b) to “income in kind” does not include a payment to a third party made in respect of the applicant which is used by the third party to provide benefits in kind to the applicant.
PART 4 Alternative maximum council tax reduction for the purposes of calculating eligibility for a reduction under an authority’s scheme and amount of reduction
Alternative maximum council tax reduction under a scheme
9
1
Subject to sub-paragraphs (2) and (3), the alternative maximum council tax reduction in respect of a day where the conditions set out in paragraph 4 (alternative maximum council tax reduction) are fulfilled, is the amount determined in accordance with Schedule 3 (amount of alternative maximum council tax reduction).
2
Subject to sub-paragraph (3), where an applicant is jointly and severally liable for council tax in respect of a dwelling in which he is resident with one or more other persons, in determining the alternative maximum council tax reduction in his case, the amount determined in accordance with Schedule 3 must be divided by the number of persons who are jointly and severally liable for that tax.
3
Where an applicant is jointly and severally liable for council tax in respect of a dwelling with only his partner, solely by virtue of section 9 of the 1992 Act (liability of spouses and civil partners), sub-paragraph (2) does not apply in his case.
PART 5 Amount of reduction under an authority’s scheme
Amount of reduction under a scheme: classes A to C
10
1
Where a person is entitled to a reduction under an authority’s scheme in respect of a day, the amount of the reduction to which he is entitled is as follows.
2
Where the person is within class A, that amount is the maximum council tax reduction amount in respect of the day in the applicant’s case.
3
Where the person is within class B, that amount is the amount found by deducting amount B from amount A, where “amount A” and “amount B” have the meanings given in paragraph 3 (income greater than applicable amount).
4
Where the person is within class C, that amount is the amount which is the alternative maximum council tax reduction in respect of the day in the applicant’s case.
5
Sub-paragraph (6) applies where both —
a
sub-paragraph (2) or sub-paragraph (3), and
b
sub-paragraph (4),
apply to a person.
6
The amount of the reduction to which he is entitled is whichever is the greater of —
a
the amount of the reduction given by sub-paragraph (2) or sub-paragraph (3), as the case may be, and
b
the amount of the reduction given by sub-paragraph (4).
PART 6 Income and capital for the purposes of calculating eligibility for a reduction under an authority’s scheme and amount of reduction
CHAPTER 1
General
Calculation of income and capital: applicant’s family and polygamous marriages
11
1
The income and capital of —
a
an applicant; and
b
any partner of that applicant,
is to be calculated in accordance with the provisions of this Part.
2
The income and capital of any partner of the applicant is to be treated as income and capital of the applicant, and in this Part any reference to the applicant applies equally to any partner of the applicant.
3
Where an applicant or the partner of an applicant is married polygamously to two or more members of his household —
a
the applicant must be treated as possessing capital and income belonging to each such member; and
b
the income and capital of that member must be calculated in accordance with the following provisions of this Part in like manner as for the applicant.
Circumstances in which income and capital of non-dependant is to be treated as applicant’s
12
1
Sub-paragraph (2) applies where it appears to an authority that a non-dependant and an applicant have entered into arrangements in order to take advantage of the authority’s scheme and the non-dependant has more income and capital than the applicant.
2
Except where the applicant is on a guarantee credit the authority must treat the applicant as possessing income and capital belonging to that non-dependant and, in such a case, any income and capital which the applicant does possess must be disregarded.
3
Where an applicant is treated as possessing income and capital belonging to a non-dependant under sub-paragraph (2) the income and capital of that non-dependant must be calculated in accordance with the following provisions of this Part in like manner as for the applicant and, except where the context otherwise requires, any reference to the “applicant” is to be construed for the purposes of this Part as if it were a reference to that non-dependant.
CHAPTER 2
Income
Applicant in receipt of guarantee credit
13
In the case of an applicant who is in receipt, or whose partner is in receipt, of a guarantee credit, the whole of his capital and income must be disregarded.
Calculation of applicant’s income in savings credit only cases
14
1
In determining the income and capital of an applicant who has, or whose partner has, an award of state pension credit comprising only the savings credit, subject to the following provisions of this paragraph, an authority must use the calculation or estimate of the applicant’s or as the case may be, the applicant’s partner’s income and capital made by the Secretary of State for the purpose of determining the award of state pension credit.
2
Where the calculation or estimate provided by the Secretary of State includes the amount taken into account in that determination in respect of net income, the authority may only adjust that amount so far as necessary to take into account —
a
the amount of any savings credit payable;
b
in respect of any dependent children of the applicant, child care charges taken into account under paragraph 24(1)(c) (calculation of income on a weekly basis);
c
the higher amount disregarded under this Schedule in respect of —
i
lone parent’s earnings; or
ii
payments of maintenance, whether under a court order or not, which are made or due to be made by —
aa
the applicant’s former partner, or the applicant’s partner’s former partner; or
bb
the parent of a child or young person where that child or young person is a member of the applicant’s family except where that parent is the applicant or the applicant’s partner;
d
any amount to be disregarded by virtue of paragraph 10(1) of Schedule 4 (sums disregarded from earnings);
e
the income and capital of any partner of the applicant who is treated as a member of the applicant’s household under regulation 8, to the extent that it is not taken into account in determining the net income of the person claiming state pension credit;
f
paragraph 12 (circumstances in which income of a non-dependant is to be treated as applicant’s), if the authority determines that that provision applies in the applicant’s case;
g
such further reduction (if any) as the authority thinks fit under section 13A(1)(c) of the 1992 Act ;
h
any amount to be disregarded by virtue of paragraph 6 of Schedule 4.
3
Paragraphs 16 to 36 of this Schedule do not apply to the amount of the net income to be taken into account under sub-paragraph (1), but do apply (so far as relevant) for the purpose of determining any adjustments to that amount which the authority makes under sub-paragraph (2).
4
If sub-paragraph (5) applies, the authority must calculate the applicant’s capital in accordance with paragraphs 31 to 36 of this Schedule.
5
This sub-paragraph applies if —
a
the Secretary of State notifies the authority that the applicant’s capital has been determined as being £16,000 or less;
b
subsequent to that determination the applicant’s capital rises to more than £16,000; and
c
the increase occurs whilst there is in force an assessed income period within the meaning of sections 6 and 9 of the State Pension Credit Act 2002 .
Calculation of income and capital where state pension credit is not payable
15
Where neither paragraph 13 (applicant in receipt of guarantee credit) nor 14 (calculation of income in savings credit only cases) applies in the applicant’s case, his income and capital is to be calculated or estimated in accordance with paragraphs 16 to 21, 24, 25, 27 to 29 and chapter 3 (capital) of this Part.
Meaning of “income”
16
1
For the purposes of classes A to C, “income” means income of any of the following descriptions —
a
earnings;
b
working tax credit;
c
retirement pension income within the meaning of the State Pension Credit Act 2002;
d
income from annuity contracts (other than retirement pension income);
e
a war disablement pension or war widow’s or widower’s pension;
f
a foreign war disablement pension or war widow’s or widower’s pension;
g
a guaranteed income payment;
h
a payment made under article 29(1)(c) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 , in any case where article 31(2)(c) applies;
i
income from capital other than capital disregarded under Part 1 of Schedule 6 (capital disregards);
j
social security benefits, other than retirement pension income or any of the following benefits —
i
disability living allowance;
ii
personal independence payment;
iii
an AFIP;
iv
attendance allowance payable under section 64 of the SSCBA ;
v
an increase of disablement pension under section 104 or 105 of that Act;
vi
child benefit;
vii
any guardian’s allowance payable under section 77 of the SSCBA ;
viii
any increase for a dependant, other than the applicant’s partner, payable in accordance with Part 4 of that Act;
ix
any —
aa
social fund payment made under Part 8 of that Act, or
bb
occasional assistance;
x
Christmas bonus payable under Part 10 of that Act;
xi
housing benefit;
xii
council tax benefit;
xiii
bereavement payment;
xiv
statutory sick pay;
xv
statutory maternity pay;
xvi
ordinary statutory paternity pay payable under Part 12ZA of the SSCBA ;
xvii
additional statutory paternity pay payable under Part 12ZA of that Act;
xviii
statutory adoption pay payable under Part 12ZB of that Act;
xix
any benefit similar to those mentioned in the preceding provisions of this paragraph payable under legislation having effect in Northern Ireland;
k
all foreign social security benefits which are similar to the social security benefits mentioned above;
l
a payment made —
i
under article 30 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 , in any case where article 30(1)(b) applies; or
ii
under article 12(8) of that Order, in any case where sub-paragraph (b) of that article applies;
m
a pension paid to victims of National Socialist persecution under any special provision made by the law of the Federal Republic of Germany, or any part of it, or of the Republic of Austria;
n
payments under a scheme made under the Pneumoconiosis etc (Workers’ Compensation) Act 1979 ;
o
payments made towards the maintenance of the applicant by his spouse, civil partner, former spouse or former civil partner or towards the maintenance of the applicant’s partner by his spouse, civil partner, former spouse or former civil partner, including payments made —
i
under a court order;
ii
under an agreement for maintenance; or
iii
voluntarily;
p
payments due from any person in respect of board and lodging accommodation provided by the applicant;
q
royalties or other sums paid as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark;
r
any payment in respect of any —
i
book registered under the Public Lending Right Scheme 1982 ; or
ii
work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982;
s
any payment, other than a payment ordered by a court or made in settlement of a claim, made by or on behalf of a former employer of a person on account of the early retirement of that person on grounds of ill-health or disability;
t
any sum payable by way of pension out of money provided under —
i
the Civil List Act 1837 ,
ii
the Civil List Act 1937 ,
iii
the Civil List Act 1952 ,
iv
the Civil List Act 1972 , or
v
the Civil List Act 1975 ;
u
any income in lieu of that specified in paragraphs (a) to (r);
v
any payment of rent made to an applicant who —
i
owns the freehold or leasehold interest in any property or is a tenant of any property;
ii
occupies part of the property; and
iii
has an agreement with another person allowing that person to occupy that property on payment of rent;
w
any payment made at regular intervals under an equity release scheme;
x
PPF periodic payments within the meaning of section 17(1) of the State Pension Credit Act 2002 .
2
Where the payment of any social security benefit referred to in sub-paragraph (1) is subject to any deduction (other than an adjustment specified in sub-paragraph (4)) the amount to be taken into account under sub-paragraph (1) is to be the amount before the deduction is made.
3
Where an award of any working tax credit or child tax credit is subject to a deduction by way of recovery of an overpayment of working tax credit or child tax credit which arose in a previous tax year the amount to be taken into account under sub-paragraph (1) shall be the amount of working tax credit or child tax credit awarded less the amount of that deduction.
4
The adjustments specified in this paragraph are those made in accordance with —
a
the Social Security (Overlapping Benefits) Regulations 1979 ;
b
the Social Security (Hospital In-Patients) Regulations 1975 ;
c
section 30DD or section 30E of the SSCBA (reductions in incapacity benefit in respect of pensions and councillor’s allowances);
d
section 3 of the Welfare Reform Act 2007 (deductions from contributory employment and support allowance in respect of pensions and councillor’s allowances) and regulations made under it.
5
In sub-paragraph (1) —
a
in paragraph (w) an “equity release scheme” means a loan —
i
made between a person (“the lender”) and the applicant;
ii
by means of which a sum of money is advanced by the lender to the applicant by way of payments at regular intervals; and
iii
which is secured on a dwelling in which the applicant owns an estate or interest and which he occupies as his home; and
b
in paragraph (J)(ix) “occasional assistance” means any payment or provision made by a local authority, the Welsh Ministers or the Scottish Ministers for the purposes of —
i
meeting, or helping to meet an immediate short-term need —
aa
arising out of an exceptional event or exceptional circumstances, or
bb
that needs to be met to avoid a risk to the well-being of an individual; and
ii
enabling qualifying individuals to establish or maintain a settled home, and “qualifying individuals” means individuals who have been, or without the assistance might otherwise be —
aa
in prison, hospital, an establishment providing residential care or other institution, or
bb
homeless or otherwise living an unsettled way of life.
6
In sub-paragraph (5)(b) “local authority” means a local authority in England within the meaning of the Local Government Act 1972 .
Calculation of weekly income
17
1
Except in a case within sub-paragraph (2) or (4), for the purposes of calculating the weekly income of an applicant, where the period in respect of which payment is made —
a
does not exceed a week, the whole of that payment must be included in the applicant’s weekly income;
b
exceeds a week, the amount to be included in the applicant’s weekly income is to be determined —
i
in a case where that period is a month, by multiplying the amount of the payment by 12 and dividing the product by 52;
ii
in a case where that period is three months, by multiplying the amount of the payment by 4 and dividing the product by 52;
iii
in a case where that period is a year, by dividing the amount of the payment by 52;
iv
in any other case, by multiplying the amount of the payment by 7 and dividing the product by the number of days in the period in respect of which it is made.
2
Sub-paragraph (3) applies where —
a
the applicant’s regular pattern of work is such that he does not work the same hours every week; or
b
the amount of the applicant’s income fluctuates and has changed more than once.
3
The weekly amount of that applicant’s income is to be determined —
a
if, in a case to which sub-paragraph (2)(a) applies, there is a recognised cycle of work, by reference to his average weekly income over the period of the complete cycle (including, where the cycle involves periods in which the applicant does no work, those periods but disregarding any other absences); or
b
in any other case, on the basis of —
i
the last two payments if those payments are one month or more apart;
ii
the last four payments if the last two payments are less than one month apart; or
iii
calculating or estimating such other payments as may, in the particular circumstances of the case, enable the applicant’s average weekly income to be determined more accurately.
4
For the purposes of sub-paragraph (3)(b) the last payments are the last payments before the date the application was made or treated as made.
5
If the applicant is entitled to receive a payment to which sub-paragraph (6) applies, the amount of that payment is to be treated as if made in respect of a period of a year.
6
This sub-paragraph applies to —
a
royalties or other sums paid as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark;
b
any payment in respect of any —
i
book registered under the Public Lending Right Scheme 1982; or
ii
work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982; and
c
any payment which is made on an occasional basis.
7
The period under which any benefit under the benefit Acts is to be taken into account is to be the period in respect of which that benefit is payable.
8
Where payments are made in a currency other than Sterling, the value of the payment is to be determined by taking the Sterling equivalent on the date the payment is made.
9
The sums specified in Schedule 4 (sums disregarded from earnings) are to be disregarded in calculating —
a
an applicant’s earnings; and
b
any amount to which sub-paragraph (6) applies where an applicant is the first owner of the copyright, design, patent or trademark, or an original contributor to the book or work referred to in sub-paragraph (6)(b).
10
For the purposes of sub-paragraph (9)(b), and for that purpose only, the amounts specified in sub-paragraph (6) are to be treated as though they were earnings.
11
Income specified in Schedule 5 (amount disregarded in calculation of amounts other than earnings) is to be disregarded in the calculation of an applicant’s income.
12
Schedule 6 (capital disregards) has effect so that —
a
the capital specified in Part 1 is disregarded for the purpose of determining an applicant’s income; and
b
the capital specified in Part 2 is disregarded for the purpose of determining an applicant’s income under paragraph 37 (calculation of tariff income from capital).
13
In the case of any income taken into account for the purpose of calculating a person’s income any amount payable by way of tax is disregarded.
Earnings of employed earners
18
1
Subject to sub-paragraph (2), “earnings” in the case of employment as an employed earner, means any remuneration or profit derived from that employment and includes —
a
any bonus or commission;
b
any payment in lieu of remuneration except any periodic sum paid to an applicant on account of the termination of his employment by reason of redundancy;
c
any payment in lieu of notice;
d
any holiday pay;
e
any payment by way of a retainer;
f
any payment made by the applicant’s employer in respect of expenses not wholly, exclusively and necessarily incurred in the performance of the duties of the employment, including any payment made by the applicant’s employer in respect of —
i
travelling expenses incurred by the applicant between his home and place of employment;
ii
expenses incurred by the applicant under arrangements made for the care of a member of his family owing to the applicant’s absence from home;
g
the amount of any payment by way of a non-cash voucher which has been taken into account in the computation of a person’s earnings in accordance with Part 5 of Schedule 3 to the Social Security (Contributions) Regulations 2001 ;
h
statutory sick pay payable by the employer under the SSCBA;
i
statutory maternity pay payable by the employer under that Act;
j
ordinary statutory paternity pay payable under Part 12ZA of that Act;
k
additional statutory paternity pay payable under Part 12ZA of that Act;
l
statutory adoption pay payable under Part 12ZB of that Act;
m
any sums payable under a contract of service —
i
for incapacity for work due to sickness or injury; or
ii
by reason of pregnancy or confinement.
2
Earnings does not include —
a
subject to sub-paragraph (3), any payment in kind;
b
any payment in respect of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment;
c
any occupational pension;
d
any lump sum payment made under the Iron and Steel Re-adaptation Benefits Scheme;
e
any payment of compensation made pursuant to an award by an employment tribunal established under the Employment Tribunals Act 1996 in respect of unfair dismissal or unlawful discrimination;
f
any payment in respect of expenses arising out of the applicant’s participation in a service user group.
3
Sub-paragraph (2)(a) does not apply in respect of any non-cash voucher referred to in sub-paragraph (1)(g).
Calculation of net earnings of employed earners
19
1
For the purposes of paragraph 24 (calculation of income on a weekly basis), the earnings of an applicant derived or likely to be derived from employment as an employed earner to be taken into account must, subject to paragraph 17(5) and Schedule 4 (sums disregarded from earnings), be his net earnings.
2
For the purposes of sub-paragraph (1) net earnings must, except where sub-paragraph (5) applies, be calculated by taking into account the gross earnings of the applicant from that employment over the assessment period, less —
a
any amount deducted from those earnings by way of —
i
income tax;
ii
primary Class 1 contributions under the SSCBA;
b
one-half of any sum paid by the applicant by way of a contribution towards an occupational pension scheme;
c
one-half of the amount calculated in accordance with sub-paragraph (4) in respect of any qualifying contribution payable by the applicant; and
d
where those earnings include a payment which is payable under any enactment having effect in Northern Ireland and which corresponds to statutory sick pay, statutory maternity pay, ordinary or additional statutory paternity pay or statutory adoption pay, any amount deducted from those earnings by way of any contributions which are payable under any enactment having effect in Northern Ireland and which correspond to primary Class 1 contributions under the SSCBA.
3
In this regulation “qualifying contribution” means any sum which is payable periodically as a contribution towards a personal pension scheme.
4
The amount in respect of any qualifying contribution is to be calculated by multiplying the daily amount of the qualifying contribution by the number equal to the number of days in the assessment period; and for the purposes of this paragraph the daily amount of the qualifying contribution is to be determined —
a
where the qualifying contribution is payable monthly, by multiplying the amount of the qualifying contribution by 12 and dividing the product by 365;
b
in any other case, by dividing the amount of the qualifying contribution by the number equal to the number of days in the period to which the qualifying contribution relates.
5
Where the earnings of an applicant are determined under paragraph 17(2)(b) (calculation of weekly income) his net earnings are to be calculated by taking into account those earnings over the assessment period, less —
a
an amount in respect of income tax equivalent to an amount calculated by applying to those earnings the basic rate of tax applicable to the assessment period less only the personal relief to which the applicant is entitled under section 35, 36, or 37 of the Income Tax Act 2007 as is appropriate to his circumstances but, if the assessment period is less than a year, the earnings to which the basic rate of tax is to be applied and the amount of the personal relief deductible under this sub-paragraph is to be calculated on a pro rata basis;
b
an amount equivalent to the amount of the primary Class 1 contributions that would be payable by him under the SSCBA in respect of those earnings if such contributions were payable; and
c
one-half of any sum which would be payable by the applicant by way of a contribution towards an occupational or personal pension scheme, if the earnings so estimated were actual earnings.
Calculation of earnings of self-employed earners
20
1
Where the earnings of an applicant consist of earnings from employment as a self-employed earner, the weekly amount of his earnings must be determined by reference to his average weekly earnings from that employment —
a
over a period of one year; or
b
where the applicant has recently become engaged in that employment or there has been a change which is likely to affect the normal pattern of business, over such other period (“computation period”) as may, in the particular case, enable the weekly amount of his earnings to be determined more accurately.
2
For the purposes of determining the weekly amount of earnings of an applicant to whom sub-paragraph (1)(b) applies, his earnings over the computation period are to be divided by the number equal to the number of days in that period and the product multiplied by 7.
3
The period over which the weekly amount of an applicant’s earnings is calculated in accordance with this paragraph will be his assessment period.
Earnings of self-employers earners
21
1
Subject to sub-paragraph (2), “earnings”, in the case of employment as a self-employed earner, means the gross income of the employment.
2
“Earnings” in the case of employment as a self-employed earner does not include —
a
where an applicant occupies a dwelling as his home and he provides in that dwelling board and lodging accommodation for which payment is made, those payments;
b
any payment made by a local authority to an applicant —
i
with whom a person is accommodated by virtue of arrangements made under sections 22C or 23(2)(a) of the Children Act 1989 or, as the case may be, section 26(1) of the Children (Scotland) Act 1995 ; or
ii
with whom a local authority fosters a child under the Looked After Children (Scotland) Regulations 2009 or who is a kinship carer under those Regulations;
c
any payment made by a voluntary organisation in accordance with section 59(1)(a) of the Children Act 1989 ;
d
any payment made to the applicant or his partner for a person (“the person concerned”) who is not normally a member of the applicant’s household but is temporarily in his care, by —
i
a local authority but excluding payments of housing benefit made in respect of the person concerned;
ii
a voluntary organisation;
iii
the person concerned pursuant to section 26(3A) of the National Assistance Act 1948 ;
iv
the National Health Service Commissioning Board or a clinical commissioning group established under section 14D of the National Health Service Act 2006 ; or
v
a Local Health Board established by an order made under section 11 of the National Health Service (Wales) Act 2006 ;
e
any sports award.
Notional income
22
1
An applicant is to be treated as possessing —
a
subject to sub-paragraph (2), the amount of any retirement pension income —
i
for which no claim has been made; and
ii
to which he might expect to be entitled if a claim for it were made;
b
income from an occupational pension scheme which the applicant elected to defer.
2
Sub-paragraph (1)(a) does not apply to the following where entitlement has been deferred —
a
a Category A or Category B retirement pension payable under sections 43 to 55 of the SSCBA;
b
a shared additional pension payable under section 55A of the SSCBA ;
c
graduated retirement benefit payable under sections 36 and 37 of the National Insurance Act 1965 .
3
For the purposes of sub-paragraph (2), entitlement has been deferred —
a
in the case of a Category A or Category B pension, in the circumstances specified in section 55(3) of the SSCBA ;
b
in the case of a shared additional pension, in the circumstances specified in section 55C(3) of the SSCBA ; and
c
in the case of graduated retirement benefit, in the circumstances specified in section 36(4) and (4A) of the National Insurance Act 1965.
4
This sub-paragraph applies where a person who has attained the qualifying age for state pension credit —
a
is entitled to money purchase benefits under an occupational pension scheme or a personal pension scheme;
b
fails to purchase an annuity with the funds available in that scheme; and
c
either —
i
defers in whole or in part the payment of any income which would have been payable to him by his pension fund holder, or
ii
fails to take any necessary action to secure that the whole of any income which would be payable to him by his pension fund holder upon his applying for it, is so paid, or
iii
income withdrawal is not available to him under that scheme.
5
Where sub-paragraph (4) applies, the amount of any income foregone is to be treated as possessed by that person, but only from the date on which it could be expected to be acquired were an application for it to be made.
6
The amount of any income foregone in a case where sub-paragraph (4)(c)(i) or (ii) applies is to be the maximum amount of income which may be withdrawn from the fund and must be determined by the authority, taking account of information provided by the pension fund holder.
7
The amount of any income foregone in a case where sub-paragraph (4)(c)(iii) applies is to be the income that the applicant could have received without purchasing an annuity had the funds held under the relevant scheme been held under a personal pension scheme or occupational pension scheme where income withdrawal was available and is to be determined in the manner specified in sub-paragraph (6).
8
In sub-paragraph (4), “money purchase benefits” has the same meaning as in the Pensions Scheme Act 1993 .
9
Subject to sub-paragraphs (10) and (12), a person will be treated as possessing income of which he has deprived himself for the purpose of securing entitlement to a reduction under the authority’s scheme or increasing the amount of the reduction.
10
Sub-paragraph (9) does not apply in respect of the amount of an increase of pension or benefit where a person, having made an election in favour of that increase of pension or benefit under Schedule 5 or 5A to the SSCBA or under Schedule 1 to the Social Security (Graduated Retirement Benefit) Regulations 2005 , changes that election in accordance with regulations made under Schedule 5 or 5A to that Act in favour of a lump sum.
11
In sub-paragraph (10), “lump sum” means a lump sum under Schedule 5 or 5A to the SSCBA or under Schedule 1 to the Social Security (Graduated Retirement Benefit) Regulations 2005.
12
Sub-paragraph (9) does not apply in respect of any amount of income other than earnings, or earnings of an employed earner, arising out of the applicant’s participation in a service user group.
13
Where an applicant is in receipt of any benefit under the benefit Acts and the rate of that benefit is altered with effect from a date on or after 1st April in any year but not more than 14 days thereafter, the authority must treat the applicant as possessing such benefit at the altered rate from either 1st April or the first Monday in April in that year, whichever date the authority selects to apply, to the date on which the altered rate is to take effect.
14
In the case of an applicant who has, or whose partner has, an award of state pension credit comprising only the savings credit, where the authority treats the applicant as possessing any benefit at the altered rate in accordance with paragraph (13), the authority must —
a
determine the income and capital of that applicant in accordance with paragraph 14(1) (calculation of applicant’s income in savings credit only cases) where the calculation or estimate of that income and capital is altered with effect from a date on or after 1st April in any year but not more than 14 days thereafter; and
b
treat that applicant as possessing such income and capital at the altered rate by reference to the date selected by the relevant authority to apply in its area, for the purposes of establishing the period referred to in sub-paragraph (13).
15
For the purposes of sub-paragraph (9), a person is not to be regarded as depriving himself of income where —
a
his rights to benefits under a registered pension scheme are extinguished and in consequence of this he receives a payment from that scheme, and
b
that payment is a trivial commutation lump sum within the meaning given by paragraph 7 of Schedule 29 to the Finance Act 2004 .
16
In sub-paragraph (15), “registered pension scheme” has the meaning given in section 150(2) of the Finance Act 2004.
Income paid to third parties
23
1
Any payment of income, other than a payment specified in sub-paragraph (2) or (3), to a third party in respect of an applicant is to be treated as possessed by the applicant.
2
Sub-paragraph (1) does not apply in respect of a payment of income made under an occupational pension scheme, in respect of a pension or other periodical payment made under a personal pension scheme or a payment made by the Board of the Pension Protection Fund where —
a
a bankruptcy order has been made in respect of the person in respect of whom the payment has been made or, in Scotland, the estate of that person is subject to sequestration or a judicial factor has been appointed on that person’s estate under section 41 of the Solicitors (Scotland) Act 1980 ;
b
the payment is made to the trustee in bankruptcy or any other person acting on behalf of the creditors; and
c
the person referred to in paragraph (a) and his partner do not possess, or are not treated as possessing, any other income apart from that payment.
3
Sub-paragraph (1) does not apply in respect of any payment of income other than earnings, or earnings derived from employment as an employed earner, arising out of the applicant’s participation in a service user group.
Calculation of income on a weekly basis
24
1
Subject to paragraph 28 (disregard of changes in tax, etc), the income of an applicant is to be calculated on a weekly basis —
a
by estimating the amount which is likely to be his average weekly income in accordance with this Part;
b
by adding to that amount the weekly income calculated under paragraph 37 (calculation of tariff income from capital); and
c
deducting from the sum of paragraphs (a) and (b) any relevant child care charges to which paragraph 25 (treatment of child care charges) applies from any earnings which form part of the average weekly income or, in a case where the conditions in sub-paragraph (2) are met, from those earnings plus whichever credit specified in paragraph (b) of that sub-paragraph is appropriate, up to a maximum deduction in respect of the applicant’s family of whichever of the sums specified in sub-paragraph (3) applies in his case.
2
The conditions of this paragraph are that —
a
the applicant’s earnings which form part of his average weekly income are less than the lower of either his relevant child care charges or whichever of the deductions specified in paragraph (3) otherwise applies in his case; and
b
that applicant or, if he is a member of a couple either the applicant or his partner, is in receipt of either working tax credit or child tax credit.
3
The maximum deduction to which sub-paragraph (1)(c) refers is to be —
a
where the applicant’s family includes only one child in respect of whom relevant child care charges are paid, £175.00 per week;
b
where the applicant’s family includes more than one child in respect of whom relevant child care charges are paid, £300 per week.
Treatment of child care charges
25
1
This paragraph applies where an applicant is incurring relevant child care charges and —
a
is a lone parent and is engaged in remunerative work;
b
is a member of a couple both of whom are engaged in remunerative work; or
c
is a member of a couple where one member is engaged in remunerative work and the other —
i
is incapacitated;
ii
is an in-patient in hospital; or
iii
is in prison (whether serving a custodial sentence or remanded in custody awaiting trial or sentence).
2
For the purposes of sub-paragraph (1) and subject to sub-paragraph (4), a person to whom sub-paragraph (3) applies must be treated as engaged in remunerative work for a period not exceeding 28 weeks during which he —
a
is paid statutory sick pay;
b
is paid short-term incapacity benefit at the lower rate under sections 30A to 30E of the SSCBA;
c
is paid an employment and support allowance;
d
is paid income support on the grounds of incapacity for work under regulation 4ZA of, and paragraph 7 or 14 of Schedule 1B to, the Income Support (General) Regulations 1987; or
e
is credited with earnings on the grounds of incapacity for work or limited capability for work under regulation 8B of the Social Security (Credits) Regulations 1975.
3
This sub-paragraph applies to a person who was engaged in remunerative work immediately before —
a
the first day of the period in respect of which he was first paid statutory sick pay, short-term incapacity benefit, an employment and support allowance or income support on the grounds of incapacity for work; or
b
the first day of the period in respect of which earnings are credited,
as the case may be.
4
In a case to which sub-paragraph (2)(d) or (e) applies, the period of 28 weeks begins on the day on which the person is first paid income support or on the first day of the period in respect of which earnings are credited, as the case may be.
5
Relevant child care charges are those charges for care to which sub-paragraphs (6) and (7) apply, and are to be calculated on a weekly basis in accordance with sub-paragraph (9).
6
The charges are paid by the applicant for care which is provided —
a
in the case of any child of the applicant’s family who is not disabled, in respect of the period beginning on that child’s date of birth and ending on the day preceding the first Monday in September following that child’s fifteenth birthday; or
b
in the case of any child of the applicant’s family who is disabled, in respect of the period beginning on that person’s date of birth and ending on the day preceding the first Monday in September following that person’s sixteenth birthday.
7
The charges are paid for care which is provided by one or more of the care providers listed in sub-paragraph (8) and are not paid —
a
in respect of the child’s compulsory education;
b
by an applicant to a partner or by a partner to an applicant in respect of any child for whom either or any of them is responsible in accordance with regulation 7 (circumstances in which a person is treated as responsible or not responsible for another); or
c
in respect of care provided by a relative of the child wholly or mainly in the child’s home.
8
The care to which sub-paragraph (7) refers may be provided —
a
out of school hours, by a school on school premises or by a local authority —
i
for children who are not disabled in respect of the period beginning on their eighth birthday and ending on the day preceding the first Monday in September following their fifteenth birthday; or
ii
for children who are disabled in respect of the period beginning on their eighth birthday and ending on the day preceding the first Monday in September following their sixteenth birthday; or
b
by a child care provider approved in accordance with the Tax Credit (New Category of Child Care Provider) Regulations 1999 ; or
c
by persons registered under Part 2 of the Children and Families (Wales) Measure 2010 ; or
d
by a person who is excepted from registration under Part 2 of the Children and Families (Wales) Measure 2010 because the child care that person provides is in a school or establishment referred to in article 11, 12 or 14 of the Child Minding and Day Care Exceptions (Wales) Order 2010 ; or
e
by —
i
persons registered under section 59(1) of the Public Services Reform (Scotland) Act 2010 ; or
ii
local authorities registered under section 83(1) of that Act,
where the care provided is child minding or day care of children within the meaning of that Act; or
f
by a person prescribed in regulations made pursuant to section 12(4) of the Tax Credits Act 2002 ; or
g
by a person who is registered under Chapter 2 or 3 of Part 3 of the Childcare Act 2006 ; or
h
by any of the schools mentioned in section 34(2) of the Childcare Act 2006 in circumstances where the requirement to register under Chapter 2 of Part 3 of that Act does not apply by virtue of section 34(2) of that Act; or
i
by any of the schools mentioned in section 53(2) of the Childcare Act 2006 in circumstances where the requirement to register under Chapter 3 of Part 3 of that Act does not apply by virtue of section 53(2) of that Act; or
j
by any of the establishments mentioned in section 18(5) of the Childcare Act 2006 in circumstances where the care is not included in the meaning of “childcare” for the purposes of Part 1 and Part 3 of that Act by virtue of that subsection; or
k
by a foster parent or kinship carer under the Fostering Services (England) Regulations 2011 , the Fostering Services (Wales) Regulations 2003 or the Looked After Children (Scotland) Regulations 2009 in relation to a child other than one whom the foster parent is fostering or kinship carer is looking after; or
l
by a provider of personal care within the meaning of paragraph 1 of Schedule 1 to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 and being a regulated activity prescribed by those Regulations; or
m
by a person who is not a relative of the child wholly or mainly in the child’s home.
9
Relevant child care charges are to be estimated over such period, not exceeding a year, as is appropriate in order that the average weekly charge may be estimated accurately having regard to information as to the amount of that charge provided by the child minder or person providing the care.
10
For the purposes of sub-paragraph (1)(c) the other member of a couple is incapacitated where —
a
he is aged not less than 80;
b
he is aged less than 80, and —
i
an additional condition specified in paragraph 26 is treated as applying in his case; and
ii
he satisfies that condition or would satisfy it but for his being treated as capable of work by virtue of a determination made in accordance with regulations made under section 171E of the SSCBA ;
c
the applicant’s applicable amount would include the support component or the work-related activity component on account of the other member having limited capability for work but for that other member being treated as not having limited capability for work by virtue of a determination made in accordance with the Employment and Support Allowance Regulations 2008 ;
d
he is, or is treated as, incapable of work and has been so incapable, or has been so treated as incapable, of work in accordance with the provisions of, and regulations made under, Part 12A of the SSCBA (incapacity for work) for a continuous period of not less than 196 days; and for this purpose any two or more separate periods separated by a break of not more than 56 days must be treated as one continuous period;
e
he is, or is treated as having, limited capability for work and has had, or been treated as having, limited capability for work in accordance with the Employment and Support Allowance Regulations 2008 for a continuous period of not less than 196 days and for this purpose any two or more separate periods separated by a break of not more than 84 days must be treated as one continuous period;
f
there is payable in respect of him one or more of the following pensions or allowances —
i
long-term incapacity benefit or short-term incapacity benefit at the higher rate under Schedule 4 to the SSCBA ;
ii
attendance allowance under section 64 of the SSCBA;
iii
severe disablement allowance under section 68 of the SSCBA;
iv
disability living allowance ;
v
personal independence payment;
vi
an AFIP;
vii
increase of disablement pension under section 104 of the SSCBA;
viii
a pension increase paid as part of a war disablement pension or under an industrial injuries scheme which is analogous to an allowance or increase of disablement pension under sub-paragraph (ii), (iv), (v) or (vii) above;
ix
main phase employment and support allowance;
g
a pension or allowance to which sub-paragraph (vii) or (viii) of paragraph (f) above refers was payable on account of his incapacity but has ceased to be payable in consequence of his becoming a patient, which in this paragraph means a person (other than a person who is serving a sentence of imprisonment or detention in a youth custody institution) who is regarded as receiving free in-patient treatment within the meaning of regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005 ;
h
an attendance allowance under section 64 of the SSCBA or disability living allowance would be payable to that person but for —
i
a suspension of benefit in accordance with regulations made under section 113(2) of the SSCBA; or
ii
an abatement as a consequence of hospitalisation;
i
the daily living component of personal independence payment would be payable to that person but for a suspension of benefit in accordance with regulations under section 86 of the Welfare Reform Act 2012 (hospital in-patients);
j
an AFIP would be payable to that person but for a suspension of payment in accordance with any terms of the armed and reserve forces compensation scheme which allow for a suspension because a person is undergoing medical treatment in a hospital or similar institution.
k
paragraph (f), (g), (h) or (i) would apply to him if the legislative provisions referred to in those paragraphs were provisions under any corresponding enactment having effect in Northern Ireland; or
l
he has an invalid carriage or other vehicle provided to him by the Secretary of State or a clinical commissioning group under paragraph 9 of Schedule 1 to the National Health Service Act 2006 or under section 46 of the National Health Service (Scotland) Act 1978 or provided by the Department of Health, Social Services and Public Safety in Northern Ireland under Article 30(1) of the Health and Personal Social Services (Northern Ireland) Order 1972 .
11
For the purposes of sub-paragraph (10), once sub-paragraph (10)(d) applies to the person, if he then ceases, for a period of 56 days or less, to be incapable, or to be treated as incapable, of work, that paragraph is to, on his again becoming so incapable, or so treated as incapable, of work at the end of that period, immediately thereafter apply to him for so long as he remains incapable, or is treated as remaining incapable, of work.
12
For the purposes of sub-paragraph (10), once sub-paragraph (10)(e) applies to the person, if he then ceases, for a period of 84 days or less, to have, or to be treated as having, limited capability for work, that paragraph is to, on his again having, or being treated as having, limited capability for work at the end of that period, immediately thereafter apply to him for so long as he has, or is treated as having, limited capability for work.
13
For the purposes of sub-paragraphs (6) and (8)(a), a person is disabled if he is a person —
a
to whom an attendance allowance or care component of disability allowance is payable or would be payable but for —
i
a suspension of benefit in accordance with regulations under section 113(2) of the SSCBA; or
ii
an abatement as a consequence of hospitalisation;
b
to whom the daily living component of personal independence payment is payable or would be payable but for a suspension of benefit in accordance with regulations under section 86 of the Welfare Reform Act 2012 (hospital in-patients);
c
who is registered as blind in a register compiled under section 29 of the National Assistance Act 1948 (welfare services) or, in Scotland, has been certified as blind and in consequence he is registered as blind in a register maintained by or on behalf of a council constituted under section 2 of the Local Government (Scotland) Act 1994 ; or
d
who ceased to be registered as blind in such a register within the period beginning 28 weeks before the first Monday in September following that person’s fifteenth birthday and ending on the day preceding that person’s sixteenth birthday.
14
For the purposes of sub-paragraph (1) a person on maternity leave, paternity leave or adoption leave is to be treated as if he is engaged in remunerative work for the period specified in sub-paragraph (16) (“the relevant period”) provided that —
a
in the week before the period of maternity leave, paternity leave or adoption leave began he was in remunerative work;
b
the applicant is incurring relevant child care charges within the meaning of sub-paragraph (5); and
c
he is entitled to either statutory maternity pay under section 164 of the SSCBA , ordinary statutory paternity pay by virtue of section 171ZA or 171ZB of that Act, additional statutory paternity pay by virtue of section 171ZEA or 171ZEB of that Act, statutory adoption pay by virtue of section 171ZL of that Act, maternity allowance under section 35 of that Act or qualifying support.
15
For the purposes of sub-paragraph (14) the relevant period begins on the day on which the person’s maternity, paternity leave or adoption leave commences and ends on —
a
the date that leave ends;
b
if no child care element of working tax credit is in payment on the date that entitlement to maternity allowance, qualifying support, statutory maternity pay, ordinary or additional statutory paternity pay or statutory adoption pay ends, the date that entitlement ends; or
c
if a child care element of working tax credit is in payment on the date that entitlement to maternity allowance or qualifying support, statutory maternity pay, ordinary or additional statutory paternity pay or statutory adoption pay ends, the date that entitlement to that award of the child care element of the working tax credit ends,
whichever shall occur first.
16
In sub-paragraphs (14) and (15) —
a
“qualifying support” means income support to which that person is entitled by virtue of paragraph 14B of Schedule 1B to the Income Support (General) Regulations 1987 ; and
b
“child care element” of working tax credit means the element of working tax credit prescribed under section 12 of the Tax Credits Act 2002 (child care element).
17
In sub-paragraphs (6), (8)(a) and (13)(d), “the first Monday in September” means the Monday which first occurs in the month of September in any year.
Additional condition referred to in paragraph 25(10)(b)(i): disability
26
1
Subject to sub-paragraph (2), the additional condition referred to in paragraph 25(10)(b)(i) is that either —
a
the applicant or, as the case may be, the other member of the couple —
i
is in receipt of one or more of the following benefits: attendance allowance, disability living allowance, personal independence payment, an AFIP, the disability element or the severe disability element of working tax credit as specified in regulation 20(1)(b) and (f) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 , mobility supplement, long-term incapacity benefit under Part 2 of the SSCBA or severe disablement allowance under Part 3 of that Act but, in the case of long-term incapacity benefit or severe disablement allowance, only where it is paid in respect of him; or
ii
was in receipt of long-term incapacity benefit under Part 2 of the SSCBA when entitlement to that benefit ceased on account of the payment of a retirement pension under that Act and the applicant has since remained continuously entitled to council tax benefit (for the period prior to 1st April 2013) or a reduction under an authority’s scheme (for the period on or after 1st April 2013) and, if the long-term incapacity benefit was payable to his partner, the partner is still a member of the family; or
iii
was in receipt of attendance allowance or disability living allowance but payment of benefit has been suspended in accordance with regulations made under section 113(2) of the SSCBA or otherwise abated as a consequence of the applicant or his partner becoming a patient within the meaning of paragraph 25(10)(g) (treatment of child care charges); or
iv
was in receipt of personal independence payment, but payment of that benefit has been suspended in accordance with section 86 of the Welfare Reform Act 2012 as a consequence of the applicant becoming a patient within the meaning of paragraph 25(10)(g); or
v
was in receipt of an AFIP but its payment has been suspended in accordance with any terms of the armed and reserve forces compensation scheme which allow for a suspension because a person is undergoing medical treatment in a hospital or similar institution; or
vi
is provided by the Secretary of State or a clinical commissioning group with an invalid carriage or other vehicle under paragraph 9 of Schedule 1 to the National Health Service Act 2006 or, in Scotland, under section 46 of the National Health Service (Scotland) Act 1978 (provision of services by Scottish Ministers) or receives payments by way of grant from the Secretary of State under paragraph 10(3) of Schedule 1 to the Act of 2006 or, in Scotland, by Scottish Ministers under section 46 of the Act of 1978; or
vii
is blind and in consequence registered in a register compiled by a local authority under section 29 of the National Assistance Act 1948 (welfare services) or, in Scotland, has been certified as blind and in consequence he is registered in a register maintained by or on behalf of a council constituted under section 2 of the Local Government (Scotland) Act 1994; or
b
the applicant, or as the case may be, the other member of the couple —
i
is, or is treated as, incapable of work in accordance with the provisions of, and regulations made under, Part 12A of the SSCBA (incapacity for work); and
ii
has been incapable, or has been treated as incapable, of work for a continuous period of not less than —
aa
in the case of an applicant who is terminally ill within the meaning of section 30B(4) of the SSCBA, 196 days;
bb
in any other case, 364 days.
2
For the purposes of sub-paragraph (1)(a)(vii), a person who has ceased to be registered as blind on regaining his eyesight is nevertheless to be treated as blind and as satisfying the additional condition set out in that sub-paragraph for a period of 28 weeks following the date on which he ceased to be so registered.
3
For the purposes of sub-paragraph (1)(b), where any two or more periods of incapacity are separated by a break of not more than 56 days, those periods must be treated as one continuous period.
4
For the purposes of this paragraph, a reference to a person who is or was in receipt of long-term incapacity benefit includes a person who is or was in receipt of short-term incapacity benefit at a rate equal to the long-term rate by virtue of section 30B(4)(a) of the SSCBA (short-term incapacity benefit for a person who is terminally ill), or who would be or would have been in receipt of short-term incapacity benefit at such a rate but for the fact that the rate of short-term incapacity benefit already payable to him is or was equal to or greater than the long-term rate.
5
In the case of a person who is a welfare to work beneficiary (a person to whom regulation 13A(1) of the Social Security (Incapacity for Work) (General) Regulations 1995 applies, and who again becomes incapable of work for the purposes of Part 12A of the SSCBA) the reference to a period of 56 days in sub-paragraph (3) must be treated as a reference to a period of 104 weeks.
Calculation of average weekly income from tax credits
27
1
This paragraph applies where an applicant receives a tax credit.
2
Where this paragraph applies, the period over which a tax credit is to be taken into account is the period set out in sub-paragraph (3).
3
Where the instalment in respect of which payment of a tax credit is made is —
a
a daily instalment, the period is 1 day, being the day in respect of which the instalment is paid;
b
a weekly instalment, the period is 7 days, ending on the day on which the instalment is due to be paid;
c
a two weekly instalment, the period is 14 days, commencing 6 days before the day on which the instalment is due to be paid;
d
a four weekly instalment, the period is 28 days, ending on the day on which the instalment is due to be paid.
4
For the purposes of this paragraph “tax credit” means child tax credit or working tax credit.
Disregard of changes in tax, contributions etc
28
In calculating the applicant’s income an authority may disregard any legislative change —
a
in the basic or other rates of income tax;
b
in the amount of any personal tax relief;
c
in the rates of social security contributions payable under the SSCBA or in the lower earnings limit or upper earnings limit for Class 1 contributions under that Act, the lower or upper limits applicable to Class 4 contributions under that Act or the amount specified in section 11(4) of that Act (small earnings exception in relation to Class 2 contributions);
d
in the amount of tax payable as a result of an increase in the weekly rate of Category A, B, C or D retirement pension or any addition thereto or any graduated pension payable under the SSCBA;
e
in the maximum rate of child tax credit or working tax credit,
for a period not exceeding 30 reduction weeks beginning with the reduction week immediately following the date from which the change is effective.
Calculation of net profit of self-employed earners
29
1
For the purposes of paragraph 24 (calculation of income on a weekly basis) the earnings of an applicant to be taken into account are —
a
in the case of a self-employed earner who is engaged in employment on his own account, the net profit derived from that employment;
b
in the case of a self-employed earner whose employment is carried on in partnership, his share of the net profit derived from that employment, less —
i
an amount in respect of income tax and of social security contributions payable under the SSCBA calculated in accordance with paragraph 30 (deduction of tax and contributions of self-employed earners); and
ii
one-half of the amount calculated in accordance with sub-paragraph (11) in respect of any qualifying premium;
2
For the purposes of sub-paragraph (1)(a) the net profit of the employment must, except where sub-paragraph (8) applies, be calculated by taking into account the earnings of the employment over the assessment period less —
a
subject to sub-paragraphs (4) to (7), any expenses wholly and exclusively incurred in that period for the purposes of that employment;
b
an amount in respect of —
i
income tax; and
ii
social security contributions payable under the SSCBA,
calculated in accordance with paragraph 30; and
c
one-half of the amount calculated in accordance with sub-paragraph (10) in respect of any qualifying premium.
3
For the purposes of sub-paragraph (1)(b) the net profit of the employment is to be calculated by taking into account the earnings of the employment over the assessment period less, subject to sub-paragraphs (4) to (7), any expenses wholly and exclusively incurred in that period for the purposes of the employment.
4
Subject to sub-paragraph (5), no deduction is to be made under sub-paragraph (2)(a) or (3), in respect of —
a
any capital expenditure;
b
the depreciation of any capital asset;
c
any sum employed or intended to be employed in the setting up or expansion of the employment;
d
any loss incurred before the beginning of the assessment period;
e
the repayment of capital on any loan taken out for the purposes of the employment; and
f
any expenses incurred in providing business entertainment.
5
A deduction must be made under sub-paragraph (2)(a) or (3) in respect of the repayment of capital on any loan used for —
a
the replacement in the course of business of equipment or machinery; or
b
the repair of an existing business asset except to the extent that any sum is payable under an insurance policy for its repair.
6
An authority must refuse to make a deduction in respect of any expenses under sub-paragraph (2)(a) or (3) where it is not satisfied given the nature and the amount of the expense that it has been reasonably incurred.
7
For the avoidance of doubt —
a
a deduction must not be made under sub-paragraph (2)(a) or (3) in respect of any sum unless it has been expended for the purposes of the business;
b
a deduction must be made thereunder in respect of —
i
the excess of any value added tax paid over value added tax received in the assessment period;
ii
any income expended in the repair of an existing business asset except to the extent that any sum is payable under an insurance policy for its repair;
iii
any payment of interest on a loan taken out for the purposes of the employment.
8
Where an applicant is engaged in employment as a child minder the net profit of the employment is to be one-third of the earnings of that employment, less —
a
an amount in respect of —
i
income tax; and
ii
social security contributions payable under the SSCBA,
calculated in accordance with paragraph 30; and
b
one-half of the amount calculated in accordance with sub-paragraph (10) in respect of any qualifying premium.
9
For the avoidance of doubt where an applicant is engaged in employment as a self-employed earner and he is also engaged in one or more other employments as a self-employed or employed earner any loss incurred in any one of his employments must not be offset against his earnings in any other of his employments.
10
The amount in respect of any qualifying premium is to be calculated by multiplying the daily amount of the qualifying premium by the number equal to the number of days in the assessment period; and for the purposes of this paragraph the daily amount of the qualifying premium is to be determined —
a
where the qualifying premium is payable monthly, by multiplying the amount of the qualifying premium by 12 and dividing the product by 365;
b
in any other case, by dividing the amount of the qualifying premium by the number equal to the number of days in the period to which the qualifying premium relates.
11
In this paragraph, “qualifying premium” means any premium which is payable periodically in respect of a personal pension scheme and is so payable on or after the date of claim.
Calculation of deduction of tax and contributions of self-employed earners
30
1
The amount to be deducted in respect of income tax under paragraph 29(1)(b)(i), (2)(b)(i) or (8)(a)(i) (calculation of net profit of self-employed earners) is to be calculated —
a
on the basis of the amount of chargeable income; and
b
as if that income were assessable to income tax at the basic rate of tax applicable to the assessment period less only the personal relief to which the applicant is entitled under section 35, 36 or 37 of the Income Tax Act 2007 (personal allowances) as is appropriate to his circumstances.
2
But, if the assessment period is less than a year, the earnings to which the basic rate of tax is to be applied and the amount of the personal reliefs deductible under this paragraph must be calculated on a pro rata basis.
3
The amount to be deducted in respect of social security contributions under paragraph 29(1)(b)(i), (2)(b)(ii) or (8)(a)(ii) is the total of —
a
the amount of Class 2 contributions payable under section 11(1) or, as the case may be, 11(3) of the SSCBA at the rate applicable to the assessment period except where the applicant’s chargeable income is less than the amount specified in section 11(4) of that Act (small earnings exception) for the tax year applicable to the assessment period; but if the assessment period is less than a year, the amount specified for that tax year must be reduced pro rata; and
b
the amount of Class 4 contributions (if any) which would be payable under section 15 of the SSCBA (Class 4 contributions recoverable under the Income Tax Acts) at the percentage rate applicable to the assessment period on so much of the chargeable income as exceeds the lower limit but does not exceed the upper limit of profits and gains applicable for the tax year applicable to the assessment period; but if the assessment period is less than a year, those limits must be reduced pro rata.
4
In this paragraph “chargeable income” means —
a
except where paragraph (b) applies, the earnings derived from the employment less any expenses deducted under sub-paragraph (3)(a) or, as the case may be, (3) of paragraph 29;
b
in the case of employment as a child minder, one-third of the earnings of that employment.
CHAPTER 3
Capital
Calculation of capital
31
1
The capital of an applicant to be taken into account must, subject to sub-paragraph (2), be the whole of his capital calculated in accordance with this Part.
2
There must be disregarded from the calculation of an applicant’s capital under sub-paragraph (1), any capital, where applicable, specified in Schedule 6 (capital disregards).
3
An applicant’s capital is to be treated as including any payment made to him by way of arrears of —
a
child tax credit;
b
working tax credit;
c
state pension credit,
if the payment was made in respect of a period for the whole or part of which a reduction under an authority’s scheme was allowed before those arrears were paid.
Calculation of capital in the United Kingdom
32
Capital which an applicant possesses in the United Kingdom is to be calculated at its current market or surrender value less —
a
where there would be expenses attributable to the sale, 10 per cent; and
b
the amount of any encumbrance secured on it.
Calculation of capital outside the United Kingdom
33
Capital which an applicant possesses in a country outside the United Kingdom is to be calculated —
a
in a case where there is no prohibition in that country against the transfer to the United Kingdom of an amount equal to its current market or surrender value in that country, at that value;
b
in a case where there is such a prohibition, at the price which it would realise if sold in the United Kingdom to a willing buyer,
less, where there would be expenses attributable to sale, 10 per cent and the amount of any encumbrances secured on it.
Notional capital
34
1
An applicant is to be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to a reduction under an authority’s scheme or increasing the amount of that reduction except to the extent that that capital is reduced in accordance with paragraph 35 (diminishing notional capital rule).
2
A person who disposes of capital for the purpose of —
a
reducing or paying a debt owed by the applicant; or
b
purchasing goods or services if the expenditure was reasonable in the circumstances of the applicant’s case,
is to be regarded as not depriving himself of it.
3
Where an applicant stands in relation to a company in a position analogous to that of a sole owner or partner in the business of that company, he may be treated as if he were such sole owner or partner and in such a case —
a
the value of his holding in that company must, notwithstanding paragraph 31 (calculation of capital) be disregarded; and
b
he must, subject to sub-paragraph (4), be treated as possessing an amount of capital equal to the value or, as the case may be, his share of the value of the capital of that company and the foregoing provisions of this Chapter apply for the purposes of calculating that amount as if it were actual capital which he does possess.
4
For so long as the applicant undertakes activities in the course of the business of the company, the amount which he is treated as possessing under sub-paragraph (3) is to be disregarded.
5
Where an applicant is treated as possessing capital under sub-paragraph (1) the foregoing provisions of this Chapter apply for the purposes of calculating its amount as if it were actual capital which he does possess.
Diminishing notional capital rule
35
1
Where an applicant is treated as possessing capital under paragraph 34(1) (notional capital), the amount which he is treated as possessing —
a
in the case of a week that is subsequent to —
i
the relevant week in respect of which the conditions set out in sub-paragraph (2) are satisfied; or
ii
a week which follows that relevant week and which satisfies those conditions,
is to be reduced by an amount determined under sub-paragraph (3);
b
in the case of a week in respect of which sub-paragraph (1)(a) does not apply but where —
i
that week is a week subsequent to the relevant week; and
ii
that relevant week is a week in which the condition in sub-paragraph (4) is satisfied,
is to be reduced by the amount determined under sub-paragraph (5).
2
This sub-paragraph applies to a reduction week where the applicant satisfies the conditions that —
a
he is in receipt of a reduction under an authority’s scheme; and
b
but for paragraph 34(1), he would have received a greater reduction under that scheme in that week.
3
In a case to which sub-paragraph (2) applies, the amount of the reduction in the amount of capital he is treated as possessing for the purposes of sub-paragraph (1)(a) is to be equal to the aggregate of —
a
an amount equal to the additional amount of the reduction in council tax to which sub-paragraph (2)(b) refers;
b
where the applicant has also claimed state pension credit, the amount of any state pension credit or any additional amount of state pension credit to which he would have been entitled in respect of the reduction week to which sub-paragraph (2) refers but for the application of regulation 21(1) of the State Pension Credit Regulations 2002 (notional capital);
c
where the applicant has also claimed housing benefit, the amount of any housing benefit or any additional amount of housing benefit to which he would have been entitled in respect of the whole or part of that reduction week to which sub-paragraph (2) refers but for the application of regulation 47(1) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 (notional capital);
d
where the applicant has also claimed a jobseeker’s allowance, the amount of an income-based jobseeker’s allowance to which he would have been entitled in respect of the reduction week to which sub-paragraph (2) refers but for the application of regulation 113 of the Jobseeker’s Allowance Regulations 1996 (notional capital); and
e
where the applicant has also claimed an employment and support allowance, the amount of an income-related employment and support allowance to which he would have been entitled in respect of the reduction week to which sub-paragraph (2) refers but for the application of regulation 115 of the Employment and Support Allowance Regulations 2008 (notional capital).
4
Subject to sub-paragraph (7), for the purposes of sub-paragraph (1)(b), the condition is that the applicant would have been entitled to a reduction in council tax under the authority’s scheme in the relevant week but for paragraph 34(1).
5
In such a case the amount of reduction in the amount of the capital which he is treated as possessing for the purposes of sub-paragraph (1)(b) is equal to the aggregate of —
a
the amount of the reduction in council tax to which the applicant would have been entitled in the relevant week but for paragraph 34(1);
b
if the applicant would, but for regulation 21 of the State Pension Credit Regulations 2002, have been entitled to state pension credit in respect of the benefit week, within the meaning of regulation 1(2) of those Regulations (interpretation), which includes the last day of the relevant week, the amount to which he would have been entitled;
c
if the applicant would, but for regulation 47(1) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, have been entitled to housing benefit or to an additional amount of housing benefit in respect of the benefit week, within the meaning of regulation 2 of those Regulations (interpretation), which includes the last day of the relevant week, the amount which is equal to —
i
in a case where no housing benefit is payable, the amount to which he would have been entitled; or
ii
in any other case, the amount equal to the additional amount of housing benefit to which he would have been entitled,
d
if the applicant would, but for regulation 113 of the Jobseeker’s Allowance Regulations 1996, have been entitled to an income-based jobseeker’s allowance in respect of the benefit week, within the meaning of regulation 1(3) of those Regulations (interpretation), which includes the last day of the relevant week, the amount to which he would have been entitled; and
e
if the applicant would, but for regulation 115 of the Employment and Support Allowance Regulations 2008, have been entitled to an income-related employment and support allowance in respect of the benefit week, within the meaning of regulation 2(1) of those Regulations (interpretation), which includes the last day of the relevant week, the amount to which he would have been entitled.
6
But if the amount mentioned in paragraph (a), (b), (c), (d), or (e) of sub-paragraph (5) (“the relevant amount”) is in respect of a part-week, the amount that is to be taken into account under that paragraph is to be determined by —
a
dividing the relevant amount by the number equal to the number of days in that part-week, and
b
multiplying the result of that calculation by 7.
7
The amount determined under sub-paragraph (5) must be re-determined under that sub-paragraph if the applicant makes a further application for a reduction in council tax under the authority’s scheme and the conditions in sub-paragraph (8) are satisfied, and in such a case —
a
paragraphs (a) to (e) of sub-paragraph (5) apply as if for the words “relevant week” there were substituted the words “relevant subsequent week”; and
b
subject to sub-paragraph (9), the amount as re-determined has effect from the first week following the relevant subsequent week in question.
8
The conditions are that —
a
a further application is made 26 or more weeks after —
i
the date on which the applicant made an application in respect of which he was first treated as possessing the capital in question under paragraph 34(1) ;
ii
in a case where there has been at least one re-determination in accordance with sub-paragraph (5), the date on which he last made an application which resulted in the weekly amount being re-determined, or
iii
the date on which he last ceased to be entitled to a reduction in council tax under the authority’s scheme,
whichever last occurred; and
b
the applicant would have been entitled to a reduction under the authority’s scheme but for paragraph 34(1).
9
The amount as re-determined pursuant to sub-paragraph (7) does not have effect if it is less than the amount which applied in that case immediately before the re-determination and in such a case the higher amount must continue to have effect.
10
For the purposes of this paragraph —
“part-week” —
in relation to an amount mentioned in sub-paragraph (5)(a) means a period of less than a week for which a reduction in council tax under an authority’s scheme is allowed;
in relation to an amount mentioned in sub-paragraph (5)(b) means a period of less than a week for which housing benefit is payable;
in relation to an amount mentioned in sub-paragraph (5)(c), (d) or (e) means —
a period of less than a week which is the whole period for which income support, an income-related employment and support allowance or, as the case may be, an income-based jobseeker’s allowance is payable; and
any other period of less than a week for which it is payable;
“relevant week” means the reduction week or part-week in which the capital in question of which the applicant has deprived himself within the meaning of paragraph 34(1) —
was first taken into account for the purpose of determining his entitlement to a reduction under an authority’s scheme; or
was taken into account on a subsequent occasion for the purpose of determining or re-determining his entitlement to a reduction on that subsequent occasion and that determination or re-determination resulted in his beginning to receive, or ceasing to receive, a reduction under that authority’s scheme,
and where more than one reduction week is identified by reference to paragraphs (a) and (b) of this definition the later or latest such reduction week or, as the case may be, the later or latest such part-week of the relevant week;
“relevant subsequent week” means the reduction week or part-week which includes the day on which the further application or, if more than one further application has been made, the last such application was made.
Capital jointly held
36
Except where an applicant possesses capital which is disregarded under paragraph 34(4) (notional capital), where an applicant and one or more persons are beneficially entitled in possession to any capital asset they must be treated, in the absence of evidence to the contrary, as if each of them were entitled in possession to the whole beneficial interest therein in an equal share and the foregoing provisions of this Chapter apply for the purposes of calculating the amount of capital which the applicant is treated as possessing as if it were actual capital which the applicant does possess.
Calculation of tariff income from capital
37
The capital of an applicant, calculated in accordance with this Part , is to be treated as if it were a weekly income of —
a
£1 for each £500 in excess of £10,000 but not exceeding £16,000; and
b
£1 for any excess which is not a complete £500.
PART 7 Extended reductions
Extended reductions (qualifying contributory benefits)
38
1
Except in the case of an applicant who is in receipt of state pension credit, an applicant who is entitled to a reduction under a scheme (by virtue of falling within any of classes A to C) is entitled to an extended reduction (qualifying contributory benefits) where —
a
the applicant or the applicant’s partner was entitled to a qualifying contributory benefit;
b
entitlement to a qualifying contributory benefit ceased because the applicant or the applicant’s partner —
i
commenced employment as an employed or self-employed earner;
ii
increased their earnings from such employment; or
iii
increased the number of hours worked in such employment,
and that employment is or, as the case may be, increased earnings or increased number of hours are, expected to last five weeks or more;
c
the applicant or the applicant’s partner had been entitled to and in receipt of a qualifying contributory benefit or a combination of qualifying contributory benefits for a continuous period of at least 26 weeks before the day on which the entitlement to a qualifying contributory benefit ceased; and
d
the applicant or the applicant’s partner was not entitled to and not in receipt of a qualifying income-related benefit in the last reduction week in which the applicant, or the applicant’s partner, was entitled to a qualifying contributory benefit.
2
An applicant must be treated as entitled to a reduction under an authority’s scheme by virtue of falling within any of classes A to C where —
a
the applicant ceased to be entitled to a reduction under the authority’s scheme because the applicant vacated the dwelling in which the applicant was resident;
b
the day on which the applicant vacated the dwelling was either in the week in which entitlement to a qualifying contributory benefit ceased, or in the preceding week; and
c
entitlement to the qualifying contributory benefit ceased in any of the circumstances listed in sub-paragraph (1)(b).
Duration of extended reduction period (qualifying contributory benefits)
39
1
Where an applicant is entitled to an extended reduction (qualifying contributory benefits), the extended reduction period starts on the first day of the reduction week immediately following the reduction week in which the applicant, or the applicant’s partner, ceased to be entitled to a qualifying contributory benefit.
2
For the purpose of sub-paragraph (1), an applicant or an applicant’s partner ceases to be entitled to a qualifying contributory benefit on the day immediately following the last day of entitlement to that benefit.
3
The extended reduction period ends —
a
at the end of a period of four weeks; or
b
on the date on which the applicant who is receiving the extended reduction (qualifying contributory benefits) has no liability for council tax, if that occurs first.
Amount of extended reduction (qualifying contributory benefits)
40
1
For any week during the extended reduction period the amount of the extended reduction (qualifying contributory benefits) the applicant is entitled to is the greater of —
a
the amount of reduction under the authority’s scheme to which the applicant was entitled by virtue of falling within any of classes A to C in the last reduction week before the applicant or the applicant’s partner ceased to be entitled to a qualifying contributory benefit;
b
the amount of reduction under the authority’s scheme to which the applicant would be entitled by virtue of falling within any of classes A to C for any reduction week during the extended reduction period, if paragraph 38 (extended reductions (qualifying contributory benefits)) did not apply to the applicant; or
c
the amount of reduction under the authority’s scheme to which the applicant’s partner would be entitled by virtue of falling within any of classes A to C, if paragraph 38 did not apply to the applicant.
2
Sub-paragraph (1) does not apply in the case of a mover.
3
Where an applicant is in receipt of an extended reduction (qualifying contributory benefits) under this paragraph and the applicant’s partner makes an application for a reduction under the authority’s scheme, no reduction is to be awarded during the extended reduction period.
Extended reductions (qualifying contributory benefits): movers
41
1
This paragraph applies —
a
to a mover ; and
b
from the Monday following the day of the move.
2
The amount of the extended reduction (qualifying contributory benefit) awarded from the Monday from which this paragraph applies until the end of the extended reduction period is the amount of reduction under the authority’s (“the first authority”) scheme which was payable to the mover for the last reduction week before the mover, or the mover’s partner, ceased to be entitled to a qualifying contributory benefit.
3
Where a mover’s liability to pay council tax in respect of the new dwelling is to a second authority, the extended reduction (qualifying contributory benefits) may take the form of a payment from the first authority to —
a
the second authority; or
b
the mover directly.
Relationship between extended reduction (qualifying contributory benefits) and entitlement to a reduction by virtue of classes A to C
42
1
Where an applicant’s reduction under an authority’s scheme would have ended when the applicant ceased to be entitled to a qualifying contributory benefit in the circumstances listed in paragraph 38(1)(b) (extended reductions: qualifying contributory benefits), that reduction does not cease to have effect until the end of the extended reduction period.
2
Part 9 (period of entitlement and changes of circumstances) does not apply to any extended reduction (qualifying contributory benefits) payable in accordance with paragraph 40(1)(a) or paragraph 41(2) (amount of extended reduction: movers).
Continuing reductions where state pension credit claimed
43
1
This paragraph applies where —
a
the applicant is entitled to a reduction under an authority’s scheme;
b
sub-paragraph (2) is satisfied; and
c
either —
i
the applicant has attained the qualifying age for state pension credit or, if his entitlement to income-based jobseeker’s allowance or income-related employment and support allowance continued beyond that age, has attained the age of 65; or
ii
the applicant’s partner has actually claimed state pension credit.
2
This sub-paragraph is only satisfied if the Secretary of State has certified to the authority that the applicant’s partner has actually claimed state pension credit or that —
a
the applicant’s award of —
i
income support has terminated because the applicant has attained the qualifying age for state pension credit; or
ii
income-based jobseeker’s allowance or income-related employment and support allowance has terminated because the applicant has attained the qualifying age for state pension credit or the age of 65; and
b
the applicant has claimed or is treated as having claimed or is required to make a claim for state pension credit.
3
Subject to sub-paragraph (4), in a case to which this paragraph applies, a person continues to be entitled to a reduction under an authority’s scheme for the period of 4 weeks beginning on the day following the day on which the applicant’s entitlement to income support or, as the case may be, income-based jobseeker’s allowance or, income-related employment and support allowance, ceased, if and for so long as the applicant otherwise satisfies the conditions for entitlement to a reduction under the scheme.
4
Where a reduction under that scheme is awarded for the period of 4 weeks in accordance with sub-paragraph (3), and the last day of that period falls on a day other than the last day of a reduction week, then a reduction under the scheme must continue to be awarded until the end of the reduction week in which the last day of that period falls.
5
Throughout the period of 4 weeks specified in sub-paragraph (3) and any further period specified in sub-paragraph (4) —
a
the whole of the income and capital of the applicant is to be disregarded;
b
the maximum council tax reduction amount of the applicant is to be that which was applicable in his case immediately before that period commenced.
6
The appropriate maximum council tax reduction amount is to be calculated in accordance with paragraph 7(1) if, since the date it was last calculated —
a
the applicant’s council tax liability has increased; or
b
a change in the deduction under paragraph 8 (non-dependent deductions) falls to be made.
Extended reductions: movers into an authority’s area
44
Where —
a
an application is made to an authority (“the current authority”) for a reduction under its scheme, and
b
the applicant, or the partner of the applicant, is in receipt of an extended reduction from —
i
another billing authority in England; or
ii
a billing authority in Wales,
the current authority must reduce any reduction to which the applicant is entitled under its scheme by the amount of that extended reduction.
PART 8 When entitlement begins and change of circumstances
Date on which entitlement begins
45
1
Subject to sub-paragraph (2), any person by whom or in respect of whom an application for a reduction under an authority’s scheme is made and who is otherwise entitled to that reduction is so entitled from the reduction week following the date on which that application is made or is treated as made.
2
Where a person is otherwise entitled to a reduction under an authority’s scheme and becomes liable for the first time for the authority’s council tax in respect of a dwelling of which he is a resident in the reduction week in which his application is made or is treated as made, he shall be so entitled from that reduction week.
Date on which change of circumstances is to take effect
46
1
Except in cases where paragraph 28 (disregard of changes in tax, contributions, etc) applies and subject to the following provisions of this paragraph and paragraph 47 (change of circumstances when state pension credit in payment), a change of circumstances which affects entitlement to, or the amount of, a reduction under an authority’s scheme (“change of circumstances”), takes effect from the first day of the reduction week following the date on which the change actually occurs.
2
Where that change is cessation of entitlement to any benefit under the benefit Acts, the date on which the change actually occurs is the day immediately following the last day of entitlement to that benefit.
3
Subject to sub-paragraph (4), where the change of circumstances is a change in the amount of council tax payable, it takes effect from the day on which it actually occurs.
4
Where the change of circumstances is a change in the amount a person is liable to pay in respect of council tax in consequence of regulations under section 13 of the 1992 Act (reduced amounts of council tax) or changes in the discount to which a dwelling may be subject under sections 11 or 11A (discounts) of that Act , it takes effect from the day on which the change in amount has effect.
5
Where the change of circumstances is the applicant’s acquisition of a partner, the change takes effect on the day on which the acquisition takes place.
6
Where the change of circumstances is the death of an applicant’s partner or their separation, it takes effect on the day the death or separation occurs.
7
If two or more changes of circumstances occurring in the same reduction week would, but for this paragraph, take effect in different reduction weeks in accordance with sub-paragraphs (1) to (6) they take effect from the day to which the appropriate sub-paragraph from (3) to (6) above refers, or, where more than one day is concerned, from the earlier day.
8
Where the change of circumstances is that income, or an increase in the amount of income, other than a benefit or an increase in the amount of a benefit under the SSCBA, is paid in respect of a past period and there was no entitlement to income of that amount during that period, the change of circumstances takes effect from the first day on which such income, had it been paid in that period at intervals appropriate to that income, would have fallen to be taken into account for the purposes of the authority’s scheme.
9
Without prejudice to sub-paragraph (8), where the change of circumstances is the payment of income, or arrears of income, in respect of a past period, the change of circumstances takes effect from the first day on which such income, had it been timeously paid in that period at intervals appropriate to that income, would have fallen to be taken into account for the purposes of the authority’s scheme.
10
Sub-paragraph (11) applies if —
a
the applicant or the applicant’s partner has attained the age of 65; and
b
either —
i
a non-dependant took up residence in the applicant’s dwelling; or
ii
there has been a change of circumstances in respect of a non-dependant so that the amount of the deduction which falls to be made under paragraph 8 (non-dependent deductions) increased.
11
Where this sub-paragraph applies, the change of circumstances referred to in sub-paragraph (10)(b) takes effect from the effective date.
12
In sub-paragraph (11), but subject to sub-paragraph (13), “the effective date” means —
a
where more than one change of a kind referred to in sub-paragraph (10)(b) relating to the same non-dependant has occurred since —
i
the date on which the applicant’s entitlement to a reduction under the authority’s scheme first began; or
ii
the date which was the last effective date in respect of such a change,
whichever is the later, the date which falls 26 weeks after the date on which the first such change occurred;
b
where paragraph (a) does not apply, the date which falls 26 weeks after the date on which the change referred to in sub-paragraph (10)(b) occurred.
13
If in any particular case the date determined under sub-paragraph (12) is not the first day of a reduction week, the effective date in that case is the first day of the next reduction week to commence after the date determined under that sub-paragraph.
Change of circumstances where state pension credit in payment
47
1
Sub-paragraphs (2) and (3) apply where —
a
an applicant is in receipt of state pension credit;
b
the amount of state pension credit awarded to him is changed in consequence of a change in the applicant’s circumstances or the correction of an official error; and
c
the change in the amount of state pension credit payable to the applicant results in a change in the amount of a reduction he receives under an authority’s scheme.
2
Where the change of circumstance is that an increase in the amount of state pension credit payable to the applicant results in —
a
an increase in the reduction he receives under that scheme, the change takes effect from the first day of the reduction week in which state pension credit becomes payable at the increased rate; or
b
a decrease in the reduction he receives under that scheme, the change takes effect from the first day of the reduction week next following the date on which —
i
the authority receives notification from the Secretary of State of the increase in the amount of state pension credit; or
ii
state pension credit is increased,
whichever is the later.
3
Where the change of circumstance (“the relevant change”) is that the applicant’s state pension credit has been reduced and in consequence the reduction the applicant receives under the authority’s scheme reduces —
a
in a case where the applicant’s state pension credit has been reduced because the applicant failed to notify the Secretary of State timeously of a change of circumstances, the relevant change takes effect from the first day of the reduction week from which state pension credit was reduced; or
b
in any other case the relevant change takes effect from the first day of the reduction week next following the date on which —
i
the authority receives notification from the Secretary of State of the reduction in the amount of state pension credit; or
ii
state pension credit is reduced,
whichever is the later.
4
Where the change of circumstance is that state pension credit is reduced and in consequence of the change, the amount of a reduction the applicant receives under the authority’s scheme is increased, the change takes effect from the first day of the reduction week in which state pension credit becomes payable at the reduced rate.
5
Where a change of circumstance occurs in that an award of state pension credit has been made to the applicant or his partner and this would result in a decrease in the amount of reduction he receives under the authority’s scheme, the change takes effect from the first day of the reduction week next following the date on which —
a
the authority receives notification from the Secretary of State of the award of state pension credit; or
b
entitlement to state pension credit begins,
whichever is the later.
6
Where, in the case of an applicant who, or whose partner, is or has been awarded state pension credit comprising only the savings credit, there is —
a
a change of circumstances of a kind described in any of sub-paragraphs (2) to (5) which results from a relevant calculation or estimate; and
b
a change of circumstances which is a relevant determination,
each of which results in a change in the amount of reduction the applicant receives under the authority’s scheme, the change of circumstances referred to in paragraph (b) takes effect from the day specified in sub-paragraph (2), (3), (4) or (5) as the case may be, in relation to the change referred to in paragraph (a).
7
Where a change of circumstance occurs in that a guarantee credit has been awarded to the applicant or his partner and this would result in an increase in the amount of a reduction the applicant receives under the authority’s scheme, the change takes effect from the first day of the reduction week next following the date in respect of which the guarantee credit is first payable.
8
Where a change of circumstances would, but for this sub-paragraph, take effect under the preceding provisions of this paragraph within the 4 week period specified in paragraph 43 (continuing reductions where state pension credit claimed), that change takes effect on the first day of the first reduction week to commence after the expiry of the 4 week period.
9
In this paragraph “official error” means an error made by —
a
an authority or a person —
i
authorised to carry out any function of an authority relating to its scheme; or
ii
providing services relating to its scheme directly or indirectly to the authority; or
b
an officer of —
i
the Department for Work and Pensions; or
ii
the Commissioners of Inland Revenue,
acting as such, but excludes any error caused wholly or partly by any person or body not specified in paragraph (a) or (b) of this definition and any error of law which is shown to have been an error only by virtue of a subsequent decision of the court;
“relevant calculation or estimate” means the calculation or estimate made by the Secretary of State of the applicant’s or, as the case may be, the applicant’s partner’s income and capital for the purposes of the award of state pension credit;
“relevant determination” means a change in the determination by the authority of the applicant’s income and capital using the relevant calculation or estimate, in accordance with paragraph 14(1) (calculation of applicant’s income in savings credit only cases).
SCHEDULE 2
Applicable amounts
regulation 14(2)
PART 1 Personal allowances
Personal allowance
1
The amount specified in column (2) below in respect of each person or couple specified in column (1) is the amount specified for the purposes of paragraph 6(1)(a) of Schedule 1.
Column (1)
Person, couple or polygamous marriage
Column (2)
Amount
1
Single applicant or lone parent —
aged under 65;
£142.70;
aged 65 or over.
£161.25.
2
Couple —
both members aged under 65;
£217.90;
one or both members aged 65 or over.
£241.65.
3
If the applicant is a member of a polygamous marriage and none of the members of the marriage has attained the age of 65 —
for the applicant and the other party to the marriage;
£217.90;
for each additional spouse who is a member of the same household as the applicant.
£75.20;
4
If the applicant is a member of a polygamous marriage and one or more members of the marriage are aged 65 or over —
for the applicant and the other party to the marriage;
£241.65;
for each additional spouse who is a member of the same household as the applicant.
£80.40.
Child or young person amounts
2
1
The amounts specified in column (2) below in respect of each person specified in column (1) are the amounts, for the relevant period specified in column (1), specified for the purposes of paragraph 6(1)(b) of Schedule 1.
Column (1)
Child or young person
Column (2)
Amount
Person in respect of the period —
beginning on that person’s date of birth and ending on the day preceding the first Monday in September following that person’s sixteenth birthday;
£64.99;
beginning on the first Monday in September following that person’s sixteenth birthday and ending on the day preceding that person’s twentieth birthday.
£64.99.
2
In column (1) of the table “the first Monday in September” means the Monday which first occurs in the month of September in any year.
PART 2 Family premium
Family premium
3
The amount for the purposes of paragraph 6(1)(c) of Schedule 1 in respect of a family of which at least one member is a child or young person is £17.40.
PART 3 Premiums
4
The premiums specified in Part 4 are, for the purposes of paragraph 6(1)(d) of Schedule 1, applicable to an applicant who satisfies the condition specified in this Part in respect of that premium.
5
Subject to sub-paragraph (2), for the purposes of this Part, once a premium is applicable to an applicant under this Part, a person is to be treated as being in receipt of any benefit for —
a
in the case of a benefit to which the Social Security (Overlapping Benefits) Regulations 1979 applies, any period during which, apart from the provision of those Regulations, he would be in receipt of that benefit; and
b
any period spent by a person in undertaking a course of training or instruction provided or approved by the Secretary of State under section 2 of the Employment and Training Act 1973 , or by Skills Development Scotland, Scottish Enterprise or Highland and Islands Enterprise under section 2 of the Enterprise and New Towns (Scotland) Act 1990 or for any period during which he is in receipt of a training allowance.
2
For the purposes of the carer premium under paragraph 9, a person is to be treated as being in receipt of a carer’s allowance by virtue of sub-paragraph (1)(a) only if and for so long as the person in respect of whose care the allowance has been claimed remains in receipt of attendance allowance, or the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the SSCBA or the daily living component of personal independence payment paid at either rate prescribed in accordance with Part 4 of the Welfare Reform Act 2012 or an AFIP.
Severe disability premium
6
1
The condition is that the applicant is a severely disabled person.
2
For the purposes of sub-paragraph (1), an applicant is to be treated as being a severely disabled person if, and only if —
a
in the case of a single applicant, a lone parent or an applicant who is treated as having no partner in consequence of sub-paragraph (3) —
i
he is in receipt of attendance allowance, or the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the SSCBA, or the daily living component of personal independence payment paid at either rate prescribed in accordance with Part 4 of the Welfare Reform Act 2012, or an AFIP; and
ii
subject to sub-paragraph (6), he has no non-dependants aged 18 or over normally residing with him or with whom he is normally residing; and
iii
no person is entitled to, and in receipt of, a carer’s allowance in respect of caring for him;
b
in the case of an applicant who has a partner —
i
the applicant is in receipt of attendance allowance, or the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the SSCBA, or the daily living component of personal independence payment paid at either rate prescribed in accordance with Part 4 of the Welfare Reform Act 2012, or an AFIP;
ii
his partner is also in receipt of such an allowance or, if he is a member of a polygamous marriage, each other member of that marriage is in receipt of such an allowance; and
iii
subject to sub-paragraph (6), the applicant has no non-dependants aged 18 or over normally residing with him or with whom he is normally residing,
and either a person is entitled to and in receipt of a carer’s allowance in respect of caring for only one of the couple or, if he is a member of a polygamous marriage, for one or more but not all the members of the marriage, or as the case may be, no person is entitled to and in receipt of such an allowance in respect of caring for either member of a couple or any of the members of the marriage.
3
Where an applicant has a partner who does not satisfy the condition in sub-paragraph (2)(b)(ii), and that partner is blind or is treated as blind within the meaning of sub-paragraph (4), that partner is to be treated for the purposes of sub-paragraph (2) as if he were not a partner of the applicant.
4
For the purposes of sub-paragraph (3), a person is blind if he is registered in a register compiled by a local authority under section 29 of the National Assistance Act 1948 (welfare services) or, in Scotland, has been certified as blind and in consequence he is registered in a register maintained by or on behalf of a council constituted under section 2 of the Local Government (Scotland) Act 1994 .
5
For the purposes of sub-paragraph (4), a person who has ceased to be registered as blind on regaining his eyesight is nevertheless to be treated as blind and as satisfying the additional condition set out in that sub-paragraph for a period of 28 weeks following the date on which he ceased to be so registered.
6
For the purposes of sub-paragraph (2)(a)(ii) and (2)(b)(iii) no account is to be taken of —
a
a person receiving attendance allowance, or the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the SSCBA, or the daily living component of personal independence payment paid at either rate prescribed in accordance with Part 4 of the Welfare Reform Act 2012, or an AFIP; or
b
a person who is blind or is treated as blind within the meaning of sub-paragraphs (4) and (5).
7
For the purposes of sub-paragraph (2)(b) a person is to be treated —
a
as being in receipt of attendance allowance, or the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the SSCBA, if he would, but for his being a patient for a period exceeding 28 days, be so in receipt;
b
as being in receipt of the daily living component of personal independence payment paid at the rate prescribed in accordance with Part 4 of the Welfare Reform Act 2012 if he would, but for his being a patient for a period exceeding 28 days, be so entitled and in receipt notwithstanding section 86 of that Act and regulations made thereunder;
c
as being in receipt of an AFIP, if he would, but for any suspension of payment in accordance with any terms of the armed and reserve forces compensation scheme which allow for a suspension because a person is undergoing medical treatment in a hospital or similar institution;
d
as being entitled to and in receipt of a carer’s allowance if he would, but for the person for whom he was caring being a patient in hospital for a period exceeding 28 days, be so entitled and in receipt.
8
For the purposes of sub-paragraph (2)(a)(iii) and (2)(b) —
a
no account is to be taken of an award of carer’s allowance to the extent that payment of such an award is back-dated for a period before the date on which the award is first paid; and
b
a reference to a person being in receipt of a carer’s allowance is to include reference to a person who would have been in receipt of that allowance but for the application of a restriction under section 6B or 7 of the Social Security Fraud Act 2001 (loss of benefit) .
Enhanced disability premium
7
1
The condition is that —
a
the care component of disability living allowance is, or would, but for a suspension of benefit in accordance with regulations under section 113(2) of the SSCBA or but for an abatement as a consequence of hospitalisation, be payable at the highest rate prescribed under section 73(2) of that Act; or
b
(as the case may be) the daily living component of personal independence payment is, or would, but for a suspension of payment in accordance with regulations under section 86 of the Welfare Reform Act 2012, be payable at the enhanced rate under section 78(2) of that Act,
in respect of a child or young person who is a member of the applicant’s family.
2
Where the condition in sub-paragraph (1) ceases to be satisfied because of the death of a child or young person, the condition is that the applicant or partner is entitled to child benefit in respect of that person under section 145A of the SSCBA (entitlement after death of child or qualifying young person).
Disabled child premium
8
The condition is that a child or young person for whom the applicant or a partner of his is responsible and who is a member of the applicant’s household —
a
is in receipt of disability living allowance or personal independence payment or is no longer in receipt of such allowance because he is a patient, provided that the child or young person continues to be a member of the family; or
b
is blind within the meaning of paragraph 6(4) of this Schedule or treated as blind in accordance with paragraph 6(5); or
c
is a child or young person in respect of whom section 145A of the SSCBA (entitlement after death of child or qualifying young person) applies for the purposes of entitlement to child benefit but only for the period prescribed under that section, and in respect of whom a disabled child premium was included in the applicant’s applicable amount immediately before the death of that child or young person, or ceased to be included in the applicant’s applicable amount because of that child or young person’s death.
Carer premium
9
1
The condition is that the applicant or his partner is, or both of them are, entitled to a carer’s allowance.
2
Where a carer premium has been awarded but —
a
the person in respect of whose care the carer’s allowance has been awarded dies; or
b
the person in respect of whom the premium was awarded ceases to be entitled, or ceases to be treated as entitled, to a carer’s allowance,
this paragraph shall be treated as satisfied for a period of eight weeks from the relevant date specified in sub-paragraph (3).
3
The relevant date for the purposes of sub-paragraph (2) is —
a
in a case within sub-paragraph (2)(a) the Sunday following the death of the person in respect of whose care the carer’s allowance has been awarded (or beginning with the date of death if the date occurred on a Sunday);
b
in a case within sub-paragraph (2)(b), the date on which that person who was entitled to a carer’s allowance ceases to be entitled to it.
4
For the purposes of this paragraph, a person is to be treated as being entitled to and in receipt of a carer’s allowance for any period not covered by an award but in respect of which a payment is made in lieu of an award.
Persons in receipt of concessionary payments
10
For the purpose of determining whether a premium is applicable to a person under paragraphs 6 to 9 of this Schedule, any concessionary payment made to compensate that person for the non-payment of any benefit mentioned in those paragraphs is to be treated as if it were a payment of that benefit.
Person in receipt of benefit
11
For the purposes of this Part, a person is to be regarded as being in receipt of any benefit if, and only if, it is paid in respect of him and is to be so regarded only for any period in respect of which that benefit is paid.
PART 4 Amounts of premium specified in Part 3
Provision Amount
1
Severe Disability Premium —
where the applicant satisfies the condition in paragraph 6(2)(a);
£58.20;
where the applicant satisfies the condition in paragraph 6(2)(b) —
in a case where there is someone in receipt of a carer’s allowance or if he or any partner satisfies that condition only by virtue of paragraph 6(7);
£58.20;
in a case where there is no-one in receipt of such an allowance.
£116.40.
2
Enhanced disability premium.
2
£22.89 in respect of each child or young person in respect of whom the conditions specified in paragraph 7 are satisfied.
3
Disabled Child Premium.
3
£56.63 in respect of each child or young person in respect of whom the condition specified in paragraph 8 is satisfied
4
Carer Premium.
4
£32.60 in respect of each person who satisfies the condition specified in paragraph 9.
SCHEDULE 3
Amount of alternative maximum council tax reduction
regulation 14(2)
1
1
Subject to paragraphs 2 and 3, the alternative maximum council tax reduction in respect of a day for the purpose of paragraph 9 of Schedule 1 is determined in accordance with the following Table and in this Table —
a
“second adult” means any person or persons residing with the applicant to whom paragraph 4(2) of Schedule 1 applies (class C); and
b
“person to whom paragraph 75(1) of Schedule 1 to the Default Scheme Regulations applies” includes any person to whom that paragraph would apply were they, and their partner if they had one, below the qualifying age for state pension credit.
2
In this Schedule “council tax due in respect of that day” means the council tax payable under section 10 of the 1992 Act less —
a
any reductions made in consequence of any enactment in, or under, the 1992 Act (other than a reduction under an authority’s scheme); and
b
in a case to which sub-paragraph (c) in column (1) of the table below applies, the amount of any discount which may be appropriate to the dwelling under the 1992 Act.
(1)
Second adult
(2)
Alternative maximum council tax reduction
Where the second adult or all second adults are in receipt of income support, an income-related employment and support allowance or state pension credit or are persons on an income-based jobseeker’s allowance;
25 per cent of the council tax due in respect of that day;
where the gross income of the second adult or, where there is more than one second adult, their aggregate gross income disregarding any income of persons on income support, an income-related employment and support allowance, state pension credit or an income-based jobseeker’s allowance —
is less than £180.00 per week;
15 per cent of the council tax due in respect of that day;
is not less than £180.00 per week but less than £235.00 per week;
7.5 per cent of the council tax due in respect of that day;
where the dwelling would be wholly occupied by one or more persons to whom paragraph 73(1) of Schedule 1 to the Default Scheme Regulations applies but for the presence of one or more second adults who are in receipt of income support, state pension credit, an income-related employment and support allowance or are persons on an income-based jobseeker’s allowance.
100 per cent of the council tax due in respect of that day.
2
In determining a second adult’s gross income for the purposes of this Schedule, the following must be disregarded from that income —
a
any attendance allowance, or any disability living allowance or any personal independence payment under Part 4 of the Welfare Reform Act 2012 or an AFIP; and
b
any payment to which paragraph 8(9)(b) or (10) of Schedule 1 to these Regulations refers (and sub-paragraph (13) of paragraph 8 applies to this paragraph as it applies in relation to that paragraph).
3
Where there are two or more second adults residing with the applicant and any such second adult falls to be disregarded for the purposes of discount in accordance with Schedule 1 to the 1992 Act, his income is to be disregarded in determining the amount of any alternative maximum council tax reduction, unless that second adult is a member of a couple and his partner does not fall to be disregarded for the purposes of discount.
SCHEDULE 4
Sums disregarded from applicant’s earnings
regulation 14(2)
1
Where two or more of paragraphs 2 to 5 apply in any particular case the overall maximum sum which falls to be disregarded in that case under those paragraphs is restricted to —
a
£25 in the case of a lone parent;
b
£20 in any other case.
2
In a case where an applicant is a lone parent, £25 of earnings.
3
1
In a case of earnings from any employment or employments to which sub-paragraph (2) applies, £20.
2
This paragraph applies to employment —
a
as a part-time fire-fighter employed by a fire and rescue authority constituted by a scheme under section 2 of the Fire and Rescue Services Act 2004 or a scheme to which section 4 of that Act applies;
b
a part-time fire-fighter employed by a fire and rescue authority (as defined in section 1 of the Fire (Scotland) Act 2005 ) or a joint fire and rescue board constituted by an amalgamation scheme made under section 2(1) of that Act;
c
as an auxiliary coastguard in respect of coast rescue activities;
d
in the manning or launching of a lifeboat if the employment is part-time;
e
as a member of any territorial or reserve force prescribed in Part I of Schedule 6 to the Social Security (Contributions) Regulations 2001 .
3
If —
a
any of the earnings of the applicant or, if he has a partner, his partner, or both of them, are disregarded under sub-paragraph (1); and
b
either of them has, or both of them have, other earnings,
so much of those other earnings as would not, in the aggregate with the earnings disregarded under that sub-paragraph, exceed £20.
4
1
If the applicant or, if he has a partner, his partner is a carer, or both are carers, £20 of any earnings received from his or their employment.
2
Where the carer premium is awarded in respect of the applicant and of any partner of his, their earnings must for the purposes of this paragraph be aggregated, but the amount to be disregarded in accordance with sub-paragraph (1) must not exceed £20 of the aggregated amount.
3
In this paragraph the applicant or his partner is a carer if paragraph 9 of Part 3 of Schedule 2 (amount applicable for carers) is satisfied in respect of him.
5
1
£20 is disregarded if the applicant or, if he has a partner, his partner —
a
is in receipt of —
i
long-term incapacity benefit under section 30A of the SSCBA;
ii
severe disablement allowance under section 68 of that Act;
iii
attendance allowance under sections 64 to 70 of that Act;
iv
disability living allowance;
v
personal independence payment;
vi
an AFIP;
vii
any mobility supplement under article 20 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (including such a supplement by virtue of any other scheme or order) or under article 25A of the Personal Injuries (Civilians) Scheme 1983 ;
viii
the disability element or the severe disability element of working tax credit under Schedule 2 to the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 ; or
ix
main phase employment and support allowance; or
b
is or are registered as blind in a register compiled by a local authority under section 29 of the National Assistance Act 1948 or, in Scotland, has been certified as blind and in consequence is registered in a register maintained by or on behalf of a council constituted under section 2 of the Local Government (Scotland) Act 1994 ; or
c
is, or is treated as, incapable of work in accordance with the provisions of, and regulations made under, Part 12A of the SSCBA (incapacity for work), and has been incapable, or has been treated as incapable, of work for a continuous period of not less than —
i
in the case of an applicant who is terminally ill within the meaning of section 30B(4) of the SSCBA , 196 days;
ii
in any other case, 364 days; or
d
has, or is treated as having, limited capacity for work within the meaning of section 1(4) of the Welfare Reform Act 2007 or limited capability for work-related activity within the meaning of section 2(5) of that Act and either —
i
the assessment phase as defined in section 24(2) of the Welfare Reform Act 2007 has ended; or
ii
regulation 7 of the Employment and Support Allowance Regulations 2008 (circumstances where the condition that the assessment phase has ended before entitlement to the support component or the work-related activity component arising does not apply) applies.
2
Subject to sub-paragraph (3), £20 is disregarded if the applicant or, if he has a partner, his partner has, within a period of 8 weeks ending on the day in respect of which the applicant or his partner attains the qualifying age for state pension credit, had an award of housing benefit or council tax benefit or was in receipt of a reduction under an authority’s scheme (including under another authority’s scheme) and —
a
£20 was disregarded in respect of earnings taken into account in that award; and
b
the person whose earnings qualified for the disregard continues in employment after the termination of that award.
3
The disregard of £20 specified in sub-paragraph (2) applies so long as there is no break, other than a break which does not exceed 8 weeks, in a person’s —
a
entitlement to housing benefit; or
b
receipt of a reduction under an authority’s (including under another authority’s) scheme; or
c
employment,
following the first day in respect of which that benefit is awarded or the reduction given under that scheme.
4
£20 is the maximum amount which may be disregarded under this paragraph, notwithstanding that, where the applicant has a partner, both the applicant and his partner satisfy the requirements of this paragraph.
6
1
Where —
a
the applicant (or if the applicant is a member of a couple, at least one member of that couple) is a person to whom sub-paragraph (5) applies;
b
the Secretary of State is satisfied that that person is undertaking exempt work as defined in sub-paragraph (6); and
c
paragraph 13 of Schedule 1 does not apply,
the amount specified in sub-paragraph (7) (“the specified amount”).
2
Where this paragraph applies, paragraphs 1 to 5 and 7 do not apply; but in any case where the applicant is a lone parent, and the specified amount would be less than the amount specified in paragraph 2, then paragraph 2 applies instead of this paragraph.
3
Notwithstanding paragraph 11 of Schedule 1 (calculation of income and capital of members applicant’s family and of a polygamous marriage), if sub-paragraph (1) applies to one member of a couple (“A”) it shall not apply to the other member of that couple (“B”) except to the extent provided in sub-paragraph (4).
4
Where A’s earnings are less than the specified amount, there must also be disregarded so much of B’s earnings as would not when aggregated with A’s earnings exceed the specified amount; but the amount of B’s earnings which may be disregarded under this sub-paragraph is limited to a maximum of £20 unless the Secretary of State is satisfied that B is also undertaking exempt work.
5
This sub-paragraph applies to a person who is —
a
in receipt of a contributory employment and support allowance;
b
in receipt of incapacity benefit;
c
in receipt of severe disablement allowance;
d
being credited with earnings on the grounds of incapacity for work or limited capability for work under regulation 8B of the Social Security (Credits) Regulations 1975 .
6
“Exempt work” means work of the kind described in —
a
regulation 45(2), (3) or (4) of the Employment and Support Allowance Regulations 2008; or (as the case may be)
b
regulation 17(2), (3) or (4) of the Social Security (Incapacity for Work) (General) Regulations 1995,
and, in determining for the purposes of this paragraph whether an applicant or a member of a couple is undertaking any type of exempt work, it is immaterial whether that person or their partner is also undertaking other work.
7
The specified amount is the amount of money from time to time mentioned in any provision referred to in sub-paragraph (6) by virtue of which the work referred to in sub-paragraph (1) is exempt (or, where more than one such provision is relevant and those provisions mention different amounts of money, the highest of those amounts).
7
Any amount or the balance of any amount which would fall to be disregarded under paragraph 18 or 19 of Schedule 5 to these Regulations had the applicant’s income which does not consist of earnings been sufficient to entitle him to the full disregarded thereunder.
8
Except where the applicant or his partner qualifies for a £20 disregard under the preceding provisions of this Schedule —
a
£5 must be disregarded if an applicant who has no partner has earnings;
b
£10 must be disregarded if an applicant who has a partner has earnings.
9
Any earnings, other than earnings referred to in paragraph 17(9)(b) of Schedule 1, derived from employment which ended before the day in respect of which the applicant first satisfies the conditions for entitlement to a reduction under an authority’s scheme.
10
1
In a case where the applicant is a person who satisfies at least one of the conditions set out in sub-paragraph (2), and his net earnings equal or exceed the total of the amounts set out in sub-paragraph (3), the amount of his earnings that falls to be disregarded under this Schedule must be increased by £17.10.
2
The conditions of this sub-paragraph are that —
a
the applicant, or if he has a partner, either the applicant or his partner, is a person to whom regulation 20(1)(c) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 applies; or
b
the applicant —
i
is, or any partner of his is, aged at least 25 and is engaged in remunerative work for on average not less than 30 hours per week; or
ii
if he is a member of a couple —
aa
at least one member of that couple is engaged in remunerative work for on average not less than 16 hours per week; and
bb
his applicable amount includes a family premium under paragraph 3 of Schedule 2; or
iii
is a lone parent who is engaged in remunerative work for on average not less than 16 hours per week; or
iv
is, or if he has a partner, one of them is, engaged in remunerative work for on average not less than 16 hours per week and paragraph 5(1) above is satisfied in respect of that person.
3
The following are the amounts referred to in sub-paragraph (1) —
a
any amount disregarded under this Schedule;
b
the amount of child care charges calculated as deductible under paragraph 24(1)(c) of Schedule 1 (calculation of income on a weekly basis); and
c
£17.10.
4
The provisions of regulation 10 (remunerative work) are to apply in determining whether or not a person works for on average not fewer than 30 hours per week, but as if the reference to 16 hours in paragraph (1) of that regulation was a reference to 30 hours.
11
Where a payment of earnings is made in a currency other than Sterling, any banking charge or commission payable in converting to that payment into Sterling.
SCHEDULE 5
Amounts to be disregarded in the calculation of income other than earnings
regulation 14(2)
1
In addition to any sum which falls to be disregarded in accordance with paragraphs 2 to 6, £10 of any of the following, namely —
a
a war disablement pension (except insofar as such a pension falls to be disregarded under paragraph 2 or 3);
b
a war widow’s pension or war widower’s pension;
c
a pension payable to a person as a widow, widower or surviving civil partner under any power of Her Majesty otherwise than under an enactment to make provision about pensions for or in respect of persons who have been disabled or have died in consequence of service as members of the armed forces of the Crown;
d
a guaranteed income payment and, if the amount of that payment has been adjusted to less than £10 by a pension or payment falling within article 39(1)(a) or (b) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 , so much of that pension or payment as would not, in aggregate with the amount of any guaranteed income payment disregarded, exceed £10;
e
a payment made to compensate for the non-payment of such a pension or payment as is mentioned in any of the preceding sub-paragraphs;
f
a pension paid by the government of a country outside Great Britain which is analogous to any of the pensions or payments mentioned in sub-paragraphs (a) to (d) above;
g
a pension paid to victims of National Socialist persecution under any special provision made by the law of the Federal Republic of Germany, or any part of it, or of the Republic of Austria.
2
The whole of any amount included in a pension to which paragraph 1 relates in respect of —
a
the applicant’s need for constant attendance;
b
the applicant’s exceptionally severe disablement.
3
Any mobility supplement under article 20 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (including such a supplement by virtue of any other scheme or order) or under article 25A of the Personal Injuries (Civilians) Scheme 1983 or any payment intended to compensate for the non-payment of such a supplement.
4
Any supplementary pension under article 23(2) of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 (pensions to surviving spouses and surviving civil partners) and any analogous payment made by the Secretary of State for Defence to any person who is not a person entitled under that Order.
5
In the case of a pension awarded at the supplementary rate under article 27(3) of the Personal Injuries (Civilians) Scheme 1983 (pensions to widows, widowers or surviving civil partners), the sum specified in paragraph 1(c) of Schedule 4 to that Scheme .
6
1
Any payment which is —
a
made under any of the Dispensing Instruments to a widow, widower or surviving civil partner of a person —
i
whose death was attributable to service in a capacity analogous to service as a member of the armed forces of the Crown; and
ii
whose service in such capacity terminated before 31st March 1973; and
b
equal to the amount specified in article 23(2) of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006.
2
In this paragraph “the Dispensing Instruments” means the Order in Council of 19th December 1881, the Royal Warrant of 27th October 1884 and the Order by His Majesty of 14th January 1922 (exceptional grants of pay, non-effective pay and allowances).
7
£15 of any widowed parent’s allowance to which the applicant is entitled under section 39A of the SSCBA .
8
£15 of any widowed mother’s allowance to which the applicant is entitled under section 37 of the SSCBA .
9
Where the applicant occupies a dwelling as his home and he provides in that dwelling board and lodging accommodation, an amount, in respect of each person for whom such accommodation is provided for the whole or any part of a week, equal to —
a
where the aggregate of any payments made in respect of any one week in respect of such accommodation provided to such person does not exceed £20, 100 per cent. of such payments; or
b
where the aggregate of any such payments exceeds £20, £20 and 50 per cent. of the excess over £20.
10
If the applicant —
a
owns the freehold or leasehold interest in any property or is a tenant of any property; and
b
occupies a part of that property; and
c
has an agreement with another person allowing that person to occupy another part of that property on payment of rent and —
i
the amount paid by that person is less than £20 per week, the whole of that amount; or
ii
the amount paid is £20 or more per week, £20.
11
Where an applicant receives income under an annuity purchased with a loan, which satisfies the following conditions —
a
that the loan was made as part of a scheme under which not less than 90 per cent. of the proceeds of the loan were applied to the purchase by the person to whom it was made of an annuity ending with his life or with the life of the survivor of two or more persons (in this paragraph referred to as “the annuitants”) who include the person to whom the loan was made;
b
that at the time the loan was made the person to whom it was made or each of the annuitants had attained the age of 65;
c
that the loan was secured on a dwelling in Great Britain and the person to whom the loan was made or one of the annuitants owns an estate or interest in that dwelling;
d
that the person to whom the loan was made or one of the annuitants occupies the dwelling on which it was secured as his home at the time the interest is paid; and
e
that the interest payable on the loan is paid by the person to whom the loan was made or by one of the annuitants,
the amount, calculated on a weekly basis, equal to —
i
where, or insofar as, section 369 of the Income and Corporation Taxes Act 1988 (mortgage interest payable under deduction of tax) applies to the payments of interest on the loan, the interest which is payable after deduction of a sum equal to income tax on such payments at the applicable percentage of income tax within the meaning of section 369(1A) of that Act;
ii
in any other case, the interest which is payable on the loan without deduction of such a sum.
12
1
Any payment, other than a payment to which sub-paragraph (2) applies, made to the applicant by Trustees in exercise of a discretion exercisable by them.
2
This sub-paragraph applies to payments made to the applicant by Trustees in exercise of a discretion exercisable by them for the purpose of —
a
obtaining food, ordinary clothing or footwear or household fuel;
b
the payment of rent, council tax or water charges for which that applicant or his partner is liable;
c
meeting housing costs of a kind specified in Schedule 2 to the State Pension Credit Regulations 2002 .
3
In a case to which sub-paragraph (2) applies, £20 or —
a
if the payment is less than £20, the whole payment;
b
if, in the applicant’s case, £10 is disregarded in accordance with paragraph 1(a) to (g), £10 or the whole payment if it is less than £10; or
c
if, in the applicant’s case, £15 is disregarded under paragraph 7 or paragraph 8 and —
i
he has no disregard under paragraph 1(a) to (g), £5 or the whole payment if it is less than £5;
ii
he has a disregard under paragraph 1(a) to (g), nil.
4
For the purposes of this paragraph, “ordinary clothing or footwear” means clothing or footwear for normal daily use, but does not include school uniforms, or clothing and footwear used solely for sporting activities.
13
Any increase in pension or allowance under Part 2 or 3 of the Naval, Military and Air Forces Etc (Disablement and Death) Service Pensions Order 2006 paid in respect of a dependent other than the pensioner’s partner.
14
Any payment ordered by a court to be made to the applicant or the applicant’s partner in consequence of any accident, injury or disease suffered by the person or a child of the person to or in respect of whom the payments are made.
15
Periodic payments made to the applicant or the applicant’s partner under an agreement entered into in settlement of a claim made by the applicant or, as the case may be, the applicant’s partner for an injury suffered by him.
16
Any income which is payable outside the United Kingdom for such period during which there is a prohibition against the transfer to the United Kingdom of that income.
17
Any banking charges or commission payable in converting to Sterling payments of income made in a currency other than Sterling.
18
Where the applicant makes a parental contribution in respect of a student attending a course at an establishment in the United Kingdom or undergoing education in the United Kingdom, which contribution has been assessed for the purposes of calculating —
a
under, or pursuant to regulations made under powers conferred by section 22 of the Teaching and Higher Education Act 1998 , that student’s award;
b
under regulations made in exercise of the powers conferred by section 49 of the Education (Scotland) Act 1980 , that student’s bursary, scholarship, or other allowance under that section or under regulations made in exercise of the powers conferred by section 73 of that Act of 1980, any payment to that student under that section; or
c
the student’s student loan,
an amount equal to the weekly amount of that parental contribution, but only in respect of the period for which that contribution is assessed as being payable.
19
1
Where the applicant is the parent of a student aged under 25 in advanced education who either —
a
is not in receipt of any award, grant or student loan in respect of that education; or
b
is in receipt of an award bestowed by virtue of the Teaching and Higher Education Act 1998, or regulations made thereunder, or a bursary, scholarship or other allowance under section 49(1) of the Education (Scotland) Act 1980, or a payment under section 73 of that Act of 1980,
and the applicant makes payments by way of a contribution towards the student’s maintenance, other than a parental contribution falling within paragraph 18, an amount specified in sub-paragraph (2) in respect of each week during the student’s term.
2
For the purposes of sub-paragraph (1), the amount is to be equal to —
a
the weekly amount of the payments; or
b
£56.25,
whichever is less.
3
In this paragraph and paragraph 18 a reference to a “student loan” or a “grant” is a reference to a student loan or a grant within the meaning of Part 11 of the Schedule to the Default Scheme Regulations.
20
1
Where an applicant’s applicable amount includes an amount by way of a family premium, £15 of any payment of maintenance, whether under a court order or not, which is made or due to be made by the applicant’s spouse, civil partner, former spouse or former civil partner or the applicant’s partner’s spouse, civil partner, former spouse, or former civil partner.
2
For the purposes of sub-paragraph (1), where more than one maintenance payment falls to be taken into account in any week, all such payments must be aggregated and treated as if they were a single payment.
21
Except in a case which falls under paragraph 10 of Schedule 4, where the applicant is a person who satisfies any of the conditions of sub-paragraph (2) of that paragraph, any amount of working tax credit up to £17.10.
22
Where the total value of any capital specified in Part 2 (capital disregarded only for the purposes of determining deemed income) of Schedule 6 does not exceed £10,000, any income actually derived from such capital.
23
Except in the case of income from capital specified in Part 2 of Schedule 6 (capital disregards), any actual income from capital.
24
Where the applicant, or the person who was the partner of the applicant on 31st March 2003, was entitled on that date to income support or an income-based jobseeker’s allowance but ceased to be so entitled on or before 5th April 2003 by virtue only of regulation 13 of the Housing Benefit (General) Amendment (No 3) Regulations 1999 as in force at that date, the whole of his income.
SCHEDULE 6
Capital Disregards
regulation 14(2)
PART 1 Capital to be disregarded
1
Any premises acquired for occupation by the applicant which he intends to occupy as his home within 26 weeks of the date of acquisition or such longer period as is reasonable in the circumstances to enable the applicant to obtain possession and commence occupation of the premises.
2
Any premises which the applicant intends to occupy as his home, and in respect of which he is taking steps to obtain possession and has sought legal advice, or has commenced legal proceedings, with a view to obtaining possession, for a period of 26 weeks from the date on which he first sought such advice or first commenced such proceedings whichever is the earlier, or such longer period as is reasonable in the circumstances to enable him to obtain possession and commence occupation of those premises.
3
Any premises which the applicant intends to occupy as his home to which essential repairs or alterations are required in order to render them fit for such occupation, for a period of 26 weeks from the date on which the applicant first takes steps to effect those repairs or alterations, or such longer period as is necessary to enable those repairs or alterations to be carried out.
4
Any premises occupied in whole or in part —
a
by a person who is a relative of the applicant or his partner as his home where that person has attained the qualifying age for state pension credit or is incapacitated;
b
by the former partner of the applicant as his home; but this provision does not apply where the former partner is a person from whom the applicant is estranged or divorced or with whom he had formed a civil partnership that has been dissolved.
5
Any future interest in property of any kind, other than land or premises in respect of which the applicant has granted a subsisting lease or tenancy, including sub-leases or sub-tenancies.
6
Where an applicant has ceased to occupy what was formerly the dwelling occupied as the home following his estrangement or divorce from his former partner or the dissolution of a civil partnership with his former partner, that dwelling for a period of 26 weeks from the date on which he ceased to occupy that dwelling or, where the dwelling is occupied as the home by the former partner who is a lone parent, for so long as it is so occupied.
7
Any premises where the applicant is taking reasonable steps to dispose of the whole of his interest in those premises, for a period of 26 weeks from the date on which he first took such steps, or such longer period as is reasonable in the circumstances to enable him to dispose of those premises.
8
All personal possessions.
9
The assets of any business owned in whole or in part by the applicant and for the purposes of which he is engaged as a self-employed earner or, if he has ceased to be so engaged, for such period as may be reasonable in the circumstances to allow for disposal of those assets.
10
The assets of any business owned in whole or in part by the applicant if —
a
he is not engaged as a self-employed earner in that business by reason of some disease or bodily or mental disablement; but
b
he intends to become engaged (or, as the case may be, re-engaged) as a self-employed earner in that business as soon as he recovers or is able to become engaged, or re-engaged, in that business,
for a period of 26 weeks from the date on which the application for a reduction under an authority’s scheme is made or, if it is unreasonable to expect him to become engaged or re-engaged in that business within that period, for such longer period as is reasonable in the circumstances to enable him to become so engaged or re-engaged.
11
The surrender value of any policy of life insurance.
12
The value of any funeral plan contract; and for this purpose, “funeral plan contract” means a contract under which —
a
the applicant makes one or more payments to another person (“the provider”);
b
the provider undertakes to provide, or secure the provision of, a funeral in the United Kingdom for the applicant on his death; and
c
the sole purpose of the plan is to provide or secure the provision of a funeral for the applicant on his death.
13
Where an ex-gratia payment has been made by the Secretary of State on or after 1st February 2001 in consequence of the imprisonment or internment of —
a
the applicant;
b
the applicant’s partner;
c
the applicant’s deceased spouse or deceased civil partner; or
d
the applicant’s partner’s deceased spouse or deceased civil partner,
by the Japanese during the Second World War, an amount equal to that payment.
14
1
Subject to sub-paragraph (2), the amount of any trust payment made to an applicant or an applicant’s partner who is —
a
a diagnosed person;
b
a diagnosed person’s partner or was a diagnosed person’s partner at the time of the diagnosed person’s death; or
c
a parent of a diagnosed person, a person acting in place of the diagnosed person’s parents or a person who was so acting at the date of the diagnosed person’s death.
2
Where a trust payment is made to —
a
a person referred to in sub-paragraph (1)(a) or (b), that sub-paragraph is to apply for the period beginning on the date on which the trust payment is made and ending on the date on which that person dies;
b
a person referred to in sub-paragraph (1)(c), that sub-paragraph shall apply for the period beginning on the date on which the trust payment is made and ending two years after that date.
3
Subject to sub-paragraph (4), the amount of any payment by a person to whom a trust payment has been made or of any payment out of the estate of a person to whom a trust payment has been made, which is made to an applicant or an applicant’s partner who is —
a
the diagnosed person;
b
a diagnosed person’s partner or was a diagnosed person’s partner at the date of the diagnosed person’s death; or
c
a parent of a diagnosed person, a person acting in place of the diagnosed person’s parents or a person who was so acting at the date of the diagnosed person’s death.
4
Where a payment such as referred to in sub-paragraph (3) is made to —
a
a person referred to in sub-paragraph (3)(a) or (b), that sub-paragraph applies for the period beginning on the date on which the payment is made and ends on the date on which that person dies;
b
a person referred to in sub-paragraph (3)(c), that sub-paragraph is to apply for the period beginning on the date on which the payment is made and ending two years after that date.
5
In this paragraph, a reference to a person —
a
being the diagnosed person’s partner;
b
acting in place of the diagnosed person’s parents,
at the date of the diagnosed person’s death includes a person who would have been such a person or a person who would have been so acting, but for the diagnosed person residing in a care home or an independent hospital.
6
In this paragraph —
“diagnosed person” means a person who has been diagnosed as suffering from, or who, after his death, has been diagnosed as having suffered from, variant Creutzfeldt-Jakob disease;
“relevant trust” means a trust established out of funds provided by the Secretary of State in respect of persons who suffered, or who are suffering, from variant Creutzfeldt-Jakob disease for the benefit of persons eligible for payments in accordance with its provisions;
“trust payment” means a payment under a relevant trust.
15
The amount of any payment, other than a war pension, to compensate for the fact that the applicant, the applicant’s partner, the applicant’s deceased spouse or civil partner or the applicant’s partner’s deceased spouse or civil partner —
a
was a slave labourer or a forced labourer;
b
had suffered property loss or had suffered personal injury; or
c
was a parent of a child who had died,
during the Second World War.
16
1
Any payment made under or by —
a
the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No 2) Trust, the Fund, the Eileen Trust, MFET Limited, the Skipton Fund, the Caxton Foundation, or the London Bombings Relief Charitable Fund (collectively referred to in this paragraph as “the Trusts”); or
b
the Independent Living Fund (2006).
2
Any payment by or on behalf of a person who is suffering or who suffered from haemophilia or who is or was a qualifying person, which derives from a payment made under or by any of the Trusts and which is made to or for the benefit of that person’s partner or former partner —
a
from whom he is not, or where that person has died was not, estranged or divorced, or
b
with whom he has formed a civil partnership that has not been dissolved or, where that person has died, had not been dissolved at the time of that person’s death.
3
Any payment by or on behalf of the partner or former partner of a person who is suffering or who suffered from haemophilia or who is or was a qualifying person which derives from a payment made under or by any of the Trusts and which is made to or for the benefit of the person who is suffering from haemophilia or who is a qualifying person.
4
Sub-paragraph (3) does not apply if —
a
the partner or former partner and that person are not, or if either of them has died were not, estranged or divorced, or
b
where the partner or former partner and that person have formed a civil partnership, the civil partnership has not been dissolved or, if either of them has died, had not been dissolved at the time of the death.
5
Any payment by a person who is suffering from haemophilia or who is a qualifying person, which derives from a payment under or by any of the Trusts, where —
a
that person has no partner or former partner from whom he is not estranged or divorced or with whom he has formed a civil partnership that has not been dissolved, nor any child who is or had been a member of that person’s household; and
b
the payment is made either —
i
to that person’s parent or step-parent; or
ii
where that person at the date of the payment is a child or a student who has not completed his full-time education and has no parent or step-parent, to any person standing in the place of his parent,
but only for a period from the date of the payment until the end of two years from that person’s death.
6
Any payment out of the estate of a person who suffered from haemophilia or who was a qualifying person, which derives from a payment under or by any of the Trusts, where —
a
that person at the date of his death (“the relevant date”) had no partner or former partner from whom he was not estranged or divorced or with whom he had formed a civil partnership that had not been dissolved, nor any child who was or had been a member of his household; and
b
the payment is made either —
i
to that person’s parent or step-parent; or
ii
where that person at the relevant date was a child or a student who had not completed his full-time education and had no parent or step-parent, to any person standing in place of his parent,
but only for a period of two years from the relevant date.
7
In the case of a person to whom or for whose benefit a payment referred to in this paragraph is made, any capital resource which derives from any payment of income or capital made under or deriving from any of the Trusts.
17
1
An amount equal to the amount of any payment made in consequence of any personal injury to the applicant or, if the applicant has a partner, to the partner.
2
Where the whole or part of the payment is administered —
a
by the High Court or the County Court under Rule 21.11(1) of the Civil Procedure Rules 1998, or the Court of Protection, or on behalf of a person where the payment can only be disposed of by order or direction of any such court;
b
in accordance with an order made under Rule 36.14 of the Ordinary Cause Rules 1993 or under Rule 128 of those Rules; or
c
in accordance with the terms of a trust established for the benefit of the applicant or his partner,
the whole of the amount so administered.
18
Any amount specified in paragraph 19, 20, 21 or 25 of this Schedule for a period of one year beginning with the date of receipt.
19
Amounts paid under a policy of insurance in connection with the loss of or damage to the property occupied by the applicant as his home and to his personal possessions.
20
So much of any amounts paid to the applicant or deposited in the applicant’s name for the sole purpose of —
a
purchasing premises which the applicant intends to occupy as his home; or
b
effecting essential repairs or alterations to the premises occupied or intended to be occupied by the applicant as his home.
21
1
Subject to paragraph 22 any amount paid —
a
by way of arrears of benefit;
b
by way of compensation for the late payment of benefit;
c
in lieu of the payment of benefit;
d
to rectify, or compensate for, an official error, as defined for the purposes of paragraph 22, being an amount to which that paragraph does not apply;
e
by a local authority out of funds provided under either section 93 of the Local Government Act 2000 under a scheme known as “Supporting People” or section 91 of the Housing (Scotland) Act 2001 .
2
In sub-paragraph (1), “benefit” means —
a
attendance allowance under section 64 of the SSCBA;
b
disability living allowance;
c
personal independence payment
d
an AFIP;
e
income support;
f
income-based jobseeker’s allowance;
g
state pension credit;
h
housing benefit;
i
council tax benefit;
j
child tax credit;
k
an increase of a disablement pension under section 104 of the SSCBA (increase where constant attendance is needed), and any further increase of such a pension under section 105 of that Act (increase for exceptionally severe disablement);
l
any amount included on account of the applicant’s exceptionally severe disablement or need for constant attendance in a war disablement pension or a war widow’s or widower’s pension;
m
any discretionary housing payment paid pursuant to regulation 2(1) of the Discretionary Financial Assistance Regulations 2001 ;
n
working tax credit; or
o
income-related employment and support allowance.
22
1
Subject to sub-paragraph (3), any payment of £5,000 or more which has been made to rectify, or to compensate for, an official error relating to a relevant benefit and has been received by the applicant in full on or after the day on which he became entitled to a reduction under an authority’s scheme.
2
Subject to sub-paragraph (3), the total amount of any payments disregarded under —
a
paragraph 7(2) of Schedule 10 to the Income Support (General) Regulations 1987 ;
b
paragraph 12(2) of Schedule 8 to the Jobseeker’s Allowance Regulations;
c
paragraph 9(2) of Schedule 5 to the Council Tax Benefit Regulations 2006 ;
d
paragraph 20A of Schedule 5 to the State Pension Credit Regulations 2002 ,
e
paragraph 11(2) of Schedule 9 to the Employment and Support Allowance Regulations,
where the award in respect of which the payments last fell to be disregarded under those Regulations either terminated immediately before the relevant date or is still in existence at that date.
3
Any disregard which applies under sub-paragraph (1) or (2) is to have effect until the award comes to an end.
4
In this paragraph —
“the award”, except in sub-paragraph (2), means —
the award of a reduction under an authority’s scheme during which the relevant sum or, where it is paid in more than one instalment, the first instalment of that sum is received; and
where that award is followed by one or more further awards which, or each of which, begins immediately after the previous award ends, such further awards until the end of the last such award, provided that, for such further awards, the applicant —
is the person who received the relevant sum;
is the partner of that person; or
was the partner of that person at the date of his death;
“official error” means —
where the error relates to housing benefit or council tax benefit (in respect of any period before 1st April 2013), has the meaning given by regulation 1(2) of the Housing Benefit and the Council Tax Benefit (Decisions and Appeals) Regulations 2001; and
where the error relates to any other relevant benefit, has the meaning given by regulation 1(3) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999;
“the relevant date” means the date on which an application for a reduction under the authority’s scheme was made;
“relevant benefit” means any benefit specified in paragraph 21(2); and
“the relevant sum” means the payment referred to in sub-paragraph (1) or the total amount referred to in sub-paragraph (2).
23
Where a capital asset is held in a currency other than Sterling, any banking charge or commission payable in converting that capital into Sterling.
24
The value of the right to receive income from an occupational pension scheme or a personal pension scheme.
25
Any arrears of supplementary pension which is disregarded under paragraph 4 of Schedule 5 (amounts to be disregarded in the calculation of income other than earnings) or of any amount which is disregarded under paragraph 5 or 6 of that Schedule.
26
The dwelling occupied as the home; but only one dwelling may be disregarded under this paragraph.
27
1
Subject to sub-paragraph (2) where an applicant falls within class C (alternative maximum council tax reduction), the whole of his capital.
2
Sub-paragraph (1) does not apply, where an applicant falls within class B (income greater than applicable amount) and class C.
28
Where a person elects to be entitled to a lump sum under Schedule 5 or 5A to the SSCBA or under Schedule 1 to the Social Security (Graduated Retirement Benefit) Regulations 2005, or is treated as having made such an election, and a payment has been made pursuant to that election, an amount equal to —
a
except where sub-paragraph (b) applies, the amount of any payment or payments made on account of that lump sum; or
b
the amount of that lump sum,
but only for so long as that person does not change that election in favour of an increase of pension or benefit.
29
Any payments made by virtue of regulations made under —
a
section 57 of the Health and Social Care Act 2001 (direct payments);
b
section 12B of the Social Work (Scotland) Act 1968 (direct payments in respect of community care services);
c
sections 12A to 12C of the National Health Service Act 2006 (direct payments for health care);
d
Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 (general social welfare); or
e
section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002 (direct payments).
PART 2 Capital disregarded only for the purposes of determining deemed income
30
The value of the right to receive any income under a life interest or from a life rent.
31
The value of the right to receive any rent except where the applicant has a reversionary interest in the property in respect of which rent is due.
32
The value of the right to receive any income under an annuity or the surrender value (if any) of such an annuity.
33
Where property is held under a trust, other than —
a
a charitable trust within the meaning of the Charities Act 1993; or
b
a trust set up with any payment to which paragraph 16 of this Schedule applies,
and under the terms of the trust, payments fall to be made, or the trustees have a discretion to make payments, to or for the benefit of the applicant or the applicant’s partner, or both, that property.
SCHEDULE 7
All applicants: matters that must be included in an authority’s scheme – procedural matters
Regulation 15(1)
PART 1 Applications
Procedure by which a person may apply for a reduction under an authority’s scheme
1
Paragraphs 2 to 7 apply to an application made under an authority’s scheme.
2
An application may be made —
a
in writing,
b
by means of an electronic communication in accordance with Part 4 of this Schedule, or
c
where an authority has published a telephone number for the purpose of receiving such applications, by telephone.
3
1
An application which is made in writing must be made to the designated office on a properly completed form.
2
The form must be provided free of charge by the authority for the purpose.
4
Where an application made in writing is defective because —
a
it was made on the form supplied for the purpose but that form is not accepted by the authority as being properly completed; or
b
it was made in writing but not on the form approved for the purpose and the authority does not accept the application as being in a written form which is sufficient in the circumstances of the case having regard to the sufficiency of the written information and evidence,
the authority may, in a case to which sub-paragraph (a) applies, request the applicant to complete the defective application or, in the case to which sub-paragraph (b) applies, supply the applicant with the approved form or request further information and evidence.
2
An application made on a form provided by an authority is properly completed if it is completed in accordance with the instructions on the form, including any instructions to provide information and evidence in connection with the application.
5
1
If an application made by electronic communication is defective an authority must provide the person making the application with an opportunity to correct the defect.
2
An application made by electronic communication is defective if the applicant does not provide all the information the authority requires.
6
In a particular case an authority may determine that an application made by telephone is only valid if the person making the application approves a written statement of his circumstances provided by the authority.
7
1
If an application made by telephone is defective an authority must provide the person making the application with an opportunity to correct the defect.
2
An application made by telephone is defective if the applicant does not provide all the information the authority requests during the telephone call.
PART 2 Appeals
Procedure by which a person may appeal against certain decisions of the authority
8
1
A person who is aggrieved by a decision of an authority which affects —
a
the person’s entitlement to a reduction under its scheme, or
b
the amount of any reduction to which that person is entitled,
may serve a written notice on that authority stating the matter by which, and the grounds on which, he is aggrieved.
2
The authority must —
a
consider the matter to which the notice relates;
b
notify the aggrieved person in writing —
i
that the ground is not well founded, giving reasons for that belief; or
ii
that steps have been taken to deal with the grievance, stating the steps taken.
3
Where, following notification under sub-paragraph (2)(b)(i) or (ii), the person is still aggrieved, or if the authority fails to notify the person aggrieved in accordance with sub-paragraph (2)(b) within two months of the service of his notice, he may appeal to a valuation tribunal under section 16 of the 1992 Act.
PART 3 Discretionary reductions
Procedure for an application to the authority for a reduction under section 13A(1)(c) of the 1992 Act
9
1
An application to an authority for a reduction under section 13A(1)(c) of the 1992 Act may be made —
a
in writing,
b
by means of an electronic communication in accordance with Part 4 of this Schedule, or
c
where the authority has published a telephone number for the purpose of receiving such applications, by telephone.
2
Where —
a
the authority has made a determination under section 13A(1)(c) in relation to a class of case in which liability is to be reduced; and
b
a person in that class would otherwise be entitled to a reduction under its scheme,
that person’s application for a reduction under the authority’s scheme may also be treated as an application for a reduction under section 13A(1)(c).
PART 4 Electronic communication
Interpretation
10
In this Part —
“information” includes an application, a certificate, notice or other evidence; and
“official computer system” means a computer system maintained by or on behalf of an authority for sending, receiving, processing or storing of any information.
Conditions for the use of electronic communication
11
1
An authority may use an electronic communication in connection with applications for, and awards of, reductions under its scheme.
2
A person other than that authority may use an electronic communication in connection with the matters referred to in sub-paragraph (1) if the conditions specified in sub-paragraphs (3) to (6) are satisfied.
3
The first condition is that the person is for the time being permitted to use an electronic communication by an authorisation given by means of a direction of the Chief Executive of the authority.
4
The second condition is that the person uses an approved method of —
a
authenticating the identity of the sender of the communication;
b
electronic communication;
c
authenticating any application or notice delivered by means of an electronic communication; and
d
subject to sub-paragraph (7), submitting to the authority any information.
5
The third condition is that any information sent by means of an electronic communication is in a form approved for the purposes of this Part.
6
The fourth condition is that the person maintains such records in written or electronic form as may be specified in a direction given by the Chief Executive of the authority.
7
Where the person uses any method other than the method approved of submitting any information, that information is to be treated as not having been submitted.
8
In this paragraph “approved” means approved by means of a direction given by the Chief Executive of the authority for the purposes of this Part.
Use of intermediaries
12
The authority may use intermediaries in connection with —
a
the delivery of any information by means of an electronic communication; and
b
the authentication or security of anything transmitted by such means,
and may require other persons to use intermediaries in connection with those matters.
Effect of delivering information by means of electronic communication
13
1
Any information which is delivered by means of an electronic communication is to be treated as having been delivered in the manner or form required by any provision of an authority’s scheme on the day the conditions imposed —
a
by this Part; and
b
by or under an enactment,
are satisfied.
2
An authority may determine that any information is to be treated as delivered on a different day (whether earlier or later) from the day provided for in sub-paragraph (1).
3
Information may not be taken to have been delivered to an official computer system by means of an electronic communication unless it is accepted by the system to which it is delivered.
Proof of identity of sender or recipient of information
14
If it is necessary to prove, for the purpose of any legal proceedings, the identity of —
a
the sender of any information delivered by means of an electronic communication to an official computer system; or
b
the recipient of any such information delivered by means of an electronic communication from an official computer system,
the sender or recipient, as the case may be, is to be presumed to be the person whose name is recorded as such on that official computer system.
Proof of delivery of information
15
1
If it is necessary to prove, for the purpose of any legal proceedings, that the use of an electronic communication has resulted in the delivery of any information this is presumed to have been the case where —
a
any such information has been delivered to the relevant authority, if the delivery of that information has been recorded on an official computer system; or
b
any such information has been delivered by the relevant authority, if the delivery of that information has been recorded on an official computer system.
2
If it is necessary to prove, for the purpose of any legal proceedings, that the use of an electronic communication has resulted in the delivery of any such information, this is presumed not to be the case, if that information delivered to the relevant authority has not been recorded on an official computer system.
3
If it is necessary to prove, for the purpose of any legal proceedings, when any such information sent by means of an electronic communication has been received, the time and date of receipt is presumed to be that recorded on an official computer system.
Proof of content of information
16
If it is necessary to prove, for the purpose of any legal proceedings, the content of any information sent by means of an electronic communication, the content is presumed to be that recorded on an official computer system.
SCHEDULE 8
All applicants: matters that must be included in an authority’s scheme – other matters
Regulation 15(1)
PART 1 Extended reductions: persons who are not pensioners
1
Paragraph 2 applies only in relation to persons who are not pensioners.
Extended reductions: movers into an authority’s area
2
Where —
a
an application is made to an authority (“the current authority”) for a reduction under its scheme, and
b
the applicant or the partner of the applicant, is in receipt of an extended reduction from —
i
another billing authority in England; or
ii
a billing authority in Wales,
the current authority must reduce any reduction to which the applicant is entitled under its scheme by the amount of that extended reduction.
PART 2 Further provision about applications and duty to notify a change of circumstances
3
Except for paragraph 6 (which applies to persons who are pensioners only), paragraphs 4 to 9 apply to persons who are pensioners and persons who are not pensioners.
Making an application
4
1
In the case of a couple or members of a polygamous marriage an application is to be made by whichever one of them they agree should so apply or, in default of agreement, by such one of them as the authority determines.
2
Where a person who is liable to pay council tax in respect of a dwelling is unable for the time being to act, and —
a
a deputy has been appointed by the Court of Protection with power to claim, or as the case may be, receive benefit on his behalf; or
b
in Scotland, his estate is being administered by a judicial factor or any guardian acting or appointed under the Adults with Incapacity (Scotland) Act 2000 who has power to apply or, as the case may be, receive benefit on his behalf; or
c
an attorney with a general power or a power to apply or, as the case may be, receive benefit, has been appointed by that person under the Powers of Attorney Act 1971, the Enduring Powers of Attorney Act 1985 or the Mental Capacity Act 2005 or otherwise,
that deputy, judicial factor, guardian or attorney, as the case may be, may make an application on behalf of that person.
3
Where a person who is liable to pay council tax in respect of a dwelling is unable for the time being to act and sub-paragraph (2) does not apply to him, an authority may, upon written application made to them by a person who, if a natural person, is over the age of 18, appoint that person to exercise on behalf of the person who is unable to act, any right to which that person might be entitled under the authority’s scheme and to receive and deal on his behalf with any sums payable to him.
4
Where a person who is liable to pay council tax in respect of a dwelling is for the time being unable to act and the Secretary of State has appointed a person to act on his behalf under regulation 33 of the Social Security (Claims and Payments) Regulations 1987 (persons unable to act), the authority may if that person agrees, treat him as if he had been appointed by them under sub-paragraph (3).
5
Where the authority has made an appointment under sub-paragraph (3) or treated a person as an appointee under sub-paragraph (4) —
a
it may at any time revoke the appointment;
b
the person appointed may resign his office after having given 4 weeks notice in writing to the authority of his intention to do so;
c
any such appointment terminates when the authority is notified of the appointment of a person mentioned in sub-paragraph (2).
6
Anything required by an authority’s scheme to be done by or to any person who is for the time being unable to act may be done by or to the persons mentioned in sub-paragraph (2) above or by or to the person appointed or treated as appointed under this paragraph and the receipt of any such person so appointed shall be a good discharge to the authority for any sum paid.
7
The authority must —
a
inform any person making an application of the duty imposed by paragraph 9(1)(a);
b
explain the possible consequences (including prosecution) of failing to comply with that duty; and
c
set out the circumstances a change in which might affect entitlement to the reduction or its amount.
Date on which an application is made
5
1
Subject to sub-paragraph (7), the date on which an application is made is —
a
in a case where —
i
an award of state pension credit which comprises a guarantee credit has been made to the applicant or his partner, and
ii
the application for a reduction is made within one month of the date on which the claim for that state pension credit which comprises a guarantee credit was received at the appropriate DWP office,
the first day of entitlement to state pension credit which comprises a guarantee credit arising from that claim;
b
in a case where —
i
an applicant or his partner is a person in receipt of a guarantee credit,
ii
the applicant becomes liable for the first time to pay council tax in respect of the dwelling he occupies as his home, and
iii
the application is received at the designated office within one month of the date of the change,
the date on which the change takes place;
c
in a case where —
i
an award of income support, an income-based jobseeker’s allowance or an income-related employment and support allowance or an award of universal credit has been made to the applicant or his partner, and
ii
the application is made within one month of the date on which the claim for that income support, jobseeker’s allowance, employment and support allowance or universal credit was received,
the first day of entitlement to income support, an income-based jobseeker’s allowance, an income-related employment and support allowance or universal credit arising from that claim;
d
in a case where —
i
an applicant or his partner is a person on income support, an income-based jobseeker’s allowance or an income-related employment and support allowance or has an award of universal credit,
ii
the applicant becomes liable for the first time to pay council tax in respect of the dwelling which he occupies as his home, and
iii
the application is received at the designated office within one month of the date of the change,
the date on which the change takes place;
e
in a case where —
i
an applicant is the former partner of a person who was, at the date of his death or their separation, entitled to a reduction under an authority’s scheme, and
ii
the applicant makes an application for a reduction under that scheme within one month of the date of the death or the separation,
the date of the death or separation;
f
except where paragraph (a), (b) or (e) is satisfied, in a case where a properly completed application is received within one month (or such longer period as an authority considers reasonable) of the date on which an application form was issued to an applicant following the applicant first notifying, by whatever means, the authority of an intention to make an application, the date of first notification;
g
in any other case, the date on which an application is received at the designated office.
2
For the purposes only of sub-paragraph (1)(c) a person who has been awarded an income-based jobseeker’s allowance or an income-related employment and support allowance is to be treated as entitled to that allowance for any days which immediately precede the first day in that award and on which he would, but for regulations made under —
a
in the case of income-based jobseeker’s allowance, paragraph 4 of Schedule 1 to the Jobseekers Act 1995 (waiting days); or
b
in the case of income-related employment and support allowance, paragraph 2 of Schedule 2 to the Welfare Reform Act 2007 (waiting days),
have been entitled to that allowance.
3
Where the defect referred to in paragraph 7 of Schedule 7 (applications by telephone) —
a
is corrected within one month (or such longer period as the authority considers reasonable) of the date the authority last drew attention to it, the authority must treat the application as if it had been duly made in the first instance;
b
is not corrected within one month (or such longer period as the authority considers reasonable) of the date the authority last drew attention to it, the authority must treat the application as if it had been duly made in the first instance where it considers it has sufficient information to decide the application.
4
An authority must treat a defective application as if it had been validly made in the first instance if, in any particular case, the conditions specified in sub-paragraph (5)(a), (b) or (c) are satisfied.
5
The conditions are that —
a
where paragraph 4(a) of Schedule 7 (incomplete form) applies, the authority receives at its designated office the properly completed application or the information requested to complete it or the evidence within one month of the request, or such longer period as the authority may consider reasonable; or
b
where paragraph 4(b) of Schedule 7 (application not on approved form or further information requested by authority) applies —
i
the approved form sent to the applicant is received at the designated office properly completed within one month of it having been sent to him; or, as the case may be,
ii
the applicant supplies whatever information or evidence was requested under paragraph 4 of that Schedule within one month of the request,
or, in either case, within such longer period as the authority may consider reasonable; or
c
where the authority has requested further information, the authority receives at its designated office the properly completed application or the information requested to complete it within one month of the request or within such longer period as the authority considers reasonable.
6
Except in the case of an application made by a person treated as not being in Great Britain, where a person has not become liable for council tax to an authority but it is anticipated that he will become so liable within the period of 8 weeks (the relevant period), he may apply for a reduction under that authority’s scheme at any time in that period in respect of that tax and, provided that liability arises within the relevant period, the authority must treat the application as having been made on the day on which the liability for the tax arises.
7
Except in the case of an application made by a person treated as not being in Great Britain, where the applicant is not entitled to a reduction under an authority’s scheme in the reduction week immediately following the date of his application but the authority is of the opinion that unless there is a change of circumstances he will be entitled to a reduction under its scheme for a period beginning not later than —
a
in the case of an application made by —
i
a pensioner, or
ii
a person who has attained, or whose partner has attained, the age which is 17 weeks younger than the qualifying age for state pension credit,
the seventeenth reduction week following the date on which the application is made, or
b
in the case of an application made by a person who is not a pensioner, the thirteenth reduction week following the date on which the application is made,
the authority may treat the application as made on a date in the reduction week immediately preceding the first reduction week of that period of entitlement and award a reduction accordingly.
8
In this paragraph “appropriate DWP office” means an office of the Department for Work and Pensions dealing with state pension credit or an office which is normally open to the public for the receipt of claims of income support, a job seekers allowance or an employment and support allowance.
Back-dating of applications
6
1
This paragraph applies only to persons who are pensioners.
2
Subject to sub-paragraph (3), the time for the making of an application under an authority’s scheme is as regards any day on which, apart from satisfying the condition of making an application, the applicant is entitled to such a reduction, that day and the period of three months immediately following it.
3
In any case where paragraph 5(1)(a) (date on which application made: state pension credit comprising guarantee credit) applies, sub-paragraph (2) does not entitle a person to apply for a reduction under an authority’s scheme in respect of any day earlier than three months before the date on which the claim for state pension credit is made (or treated as made by virtue of any provision of the Social Security (Claims and Payments) Regulations 1987).
Information and evidence
7
1
Subject to sub-paragraph (3), a person who makes an application for a reduction under an authority’s scheme must satisfy sub-paragraph (2) in relation both to himself and to any other person in respect of whom he is making the application.
2
This sub-paragraph is satisfied in relation to a person if —
a
the application is accompanied by —
i
a statement of the person’s national insurance number and information or evidence establishing that that number has been allocated to the person; or
ii
information or evidence enabling the authority to ascertain the national insurance number that has been allocated to the person; or
b
the person has made an application for a national insurance number to be allocated to him and the application for the reduction is accompanied by —
i
evidence of the application for a national insurance number to be so allocated; and
ii
the information or evidence enabling it to be so allocated.
3
Sub-paragraph (2) does not apply —
a
in the case of a child or young person in respect of whom an application for a reduction is made;
b
to a person who —
i
is a person treated as not being in Great Britain for the purposes of these Regulations ;
ii
is subject to immigration control within the meaning of section 115(9)(a) of the Immigration and Asylum Act 1999; and
iii
has not previously been allocated a national insurance number.
4
Subject to sub-paragraph (5), a person who makes an application, or a person to whom a reduction under an authority’s scheme has been awarded, must furnish such certificates, documents, information and evidence in connection with the application or the award, or any question arising out of the application or the award, as may reasonably be required by that authority in order to determine that person’s entitlement to, or continuing entitlement to a reduction under its scheme and must do so within one month of the authority requiring him to do so or such longer period as the authority may consider reasonable.
5
Nothing in this paragraph requires a person who is a pensioner to furnish any certificates, documents, information or evidence relating to a payment to which sub-paragraph (7) applies.
6
Where an authority makes a request under sub-paragraph (4), it must —
a
inform the applicant or the person to whom a reduction under its scheme has been awarded of his duty under paragraph 9 (duty to notify change of circumstances) to notify the authority of any change of circumstances; and
b
without prejudice to the extent of the duty owed under paragraph 9, indicate to him either orally or by notice or by reference to some other document available to him on application and without charge, the kind of change of circumstances which must be notified.
7
This sub-paragraph applies to any of the following payments —
a
a payment which is made under or by the Trusts, the Fund, the Eileen Trust, MFET Limited, the Skipton Fund, the Caxton Foundation or the London Bombings Relief Charitable Fund;
b
a payment which is disregarded under paragraph 16 of Schedule 6 (payments made under certain trusts and certain other payments), other than a payment under the Independent Living Fund (2006);
c
a payment which is disregarded under paragraph 8(10) of Schedule 1.
8
Where an applicant or a person to whom a reduction under an authority’s scheme has been awarded or any partner has attained the qualifying age for state pension credit and is a member of, or a person deriving entitlement to a pension under, a personal pension scheme, he must where the authority so requires furnish the following information —
a
the name and address of the pension fund holder ;
b
such other information including any reference or policy number as is needed to enable the personal pension scheme to be identified.
Amendment and withdrawal of application
8
1
A person who has made an application may amend it at any time before a decision has been made on it by a notice in writing delivered or sent to the designated office.
2
Where the application was made by telephone in accordance with Part 1 of Schedule 7, the amendment may also be made by telephone.
3
Any application amended in accordance with sub-paragraph (1) or (2) is to be treated as if it had been amended in the first instance.
4
A person who has made an application may withdraw it by notice to the designated office at any time before a decision has been made on it.
5
Where the application was made by telephone in accordance with Part 1 of Schedule 7, the withdrawal may also be made by telephone.
6
Any notice of withdrawal given in accordance with sub-paragraph (4) or (5) has effect when it is received.
7
Where a person, by telephone, amends or withdraws an application the person must (if required to do so by the authority) confirm the amendment or withdrawal by a notice in writing delivered or sent to the designated office.
Duty to notify changes of circumstances
9
1
Subject to sub-paragraphs (3), (6) and (7), an applicant (or any person acting on his behalf) must comply with sub-paragraph (2) if there is a relevant change of circumstances at any time —
a
between the making of an application and a decision being made on it, or
b
after the decision is made (where the decision is that the applicant is entitled to a reduction under an authority’s scheme) including at any time while the applicant is in receipt of such a reduction.
2
The applicant (or any person acting on his behalf) must notify any change of circumstances which the applicant (or that person) might reasonably be expected to know might affect his entitlement to, or the amount of, a reduction under the authority’s scheme (a “relevant change of circumstances”) by giving notice to the authority —
a
in writing; or
b
by telephone —
i
where the authority has published a telephone number for that purpose or for the purposes of Part 1 of Schedule 7 unless the authority determines that in any particular case or class of case notification may not be given by telephone; or
ii
in any case or class of case where the authority determines that notice may be given by telephone; or
c
by any other means which the authority agrees to accept in any particular case,
within a period of 21 days beginning with the day on which the change occurs, or as soon as reasonably practicable after the change occurs, whichever is later.
3
The duty imposed on a person by sub-paragraph (1) does not extend to notifying —
a
changes in the amount of council tax payable to the authority;
b
changes in the age of the applicant or that of any member of his family;
c
in the case of an applicant in receipt of a relevant benefit, changes in circumstances which affect the amount of the benefit but not the amount of the reduction under the authority’s scheme to which he is entitled, other than the cessation of that entitlement to the benefit.
4
For the purposes of sub-paragraph (3)(c) “relevant benefit” means income support, an income-based jobseeker’s allowance or an income-related employment and support allowance or universal credit.
5
Notwithstanding sub-paragraph (3)(b) or (c) an applicant is required by sub-paragraph (1) to notify the authority of any change in the composition of his family arising from the fact that a person who was a member of his family is now no longer such a person because he has ceased to be a child or young person.
6
The duty imposed on a person by sub-paragraph (1) includes in the case of a person falling within class C (pensioners: alternative maximum council tax reduction), giving written notice to the authority of changes which occur in the number of adults in the dwelling or in their total gross incomes and, where any such adult ceases to be in receipt of state pension credit, the date when this occurs.
7
A person who has been awarded a reduction under an authority’s scheme who is also on state pension credit must report —
a
changes affecting the residence or income of any non-dependant normally residing with the applicant or with whom the applicant normally resides;
b
any absence from the dwelling which exceeds or is likely to exceed 13 weeks.
8
In addition to the changes required to be reported under sub-paragraph (7), a person whose state pension credit comprises only a savings credit must also report —
a
changes affecting a child living with him which may result in a change in the amount of reduction under the authority’s scheme allowed in his case, but not changes in the age of the child;
b
any change in the amount of the applicant’s capital to be taken into account which does or may take the amount of his capital to more than £16,000;
c
any change in the income or capital of —
i
a non-dependant whose income and capital are treated as belonging to the applicant in accordance with paragraph 12 of Schedule 1 (circumstances in which income of a non-dependant is to be treated as applicant’s); or
ii
a person to whom paragraph 14(2)(e) of Schedule 1 refers (partner treated as member of the household under regulation 8),
and whether such a person or, as the case may be, non-dependant stops living or begins or resumes living with the applicant.
9
A person who is entitled to a reduction under an authority’s scheme and on state pension credit need only report to the authority the changes specified in sub-paragraphs (7) and (8).
PART 3 Decisions by an authority
10
This Part applies to persons who are pensioners and persons who are not pensioners.
Decision by authority
11
An authority must make a decision on an application under its scheme within 14 days of paragraphs 4 and 7 and Part 1 of Schedule 7 being satisfied, or as soon as reasonably practicable thereafter.
Notification of decision
12
1
An authority must notify in writing any person affected by a decision made by it under its scheme —
a
in the case of a decision on an application, forthwith or as soon as reasonably practicable thereafter;
b
in any other case, within 14 days of that decision or as soon as reasonably practicable thereafter.
2
Where the decision is to award a reduction, the notification under sub-paragraph (1) must include a statement —
a
informing the person affected of the duty imposed by paragraph 9(1);
b
explaining the possible consequences (including prosecution) of failing to comply with that duty; and
c
setting out the circumstances a change in which might affect entitlement to the reduction or its amount.
3
Where the decision is to award a reduction, the notification under sub-paragraph (1) must include a statement as to how that entitlement is to be discharged.
4
In any case, the notification under sub-paragraph (1) must inform the person affected of the procedure by which an appeal may be made and must refer the person to the provisions in the authority’s scheme relating to the procedure for making an appeal.
5
A person affected to whom an authority sends or delivers a notification of decision may, within one month of the date of the notification of that decision request in writing the authority to provide a written statement setting out the reasons for its decision on any matter set out in the notice.
6
The written statement referred to in sub-paragraph (5) must be sent to the person requesting it within 14 days or as soon as reasonably practicable thereafter.
7
For the purposes of this paragraph a person is to be treated as a person affected by a decision of an authority under its scheme where the rights, duties or obligations of that person are affected by that decision and the person falls within sub-paragraph (8).
8
This sub-paragraph applies to —
a
the applicant;
b
in the case of a person who is liable to pay council tax in respect of a dwelling and is unable for the time being to act —
i
a deputy appointed by the Court of Protection with power to claim, or as the case may be, receive benefit on his behalf; or
ii
in Scotland, a judicial factor or any guardian acting or appointed under the Adults with Incapacity (Scotland) Act 2000 who has power to apply or, as the case may be, receive benefit on the person’s behalf; or
iii
an attorney with a general power or a power to apply or, as the case may be, receive benefit, has been appointed by that person under the Powers of Attorney Act 1971 , the Enduring Powers of Attorney Act 1985 or the Mental Capacity Act 2005 or otherwise,
c
a person appointed by an authority under paragraph 4(3) (persons appointed to act for a person unable to act).
PART 4 Circumstances in which a payment may be made
13
This part applies to persons who are pensioners and persons who are not pensioners.
Payment where there is joint and several liability
14
1
Where —
a
a person is entitled to a reduction under an authority’s scheme in respect of his liability for the authority’s council tax as it has effect in respect of a chargeable financial year;
b
the person entitled to the reduction is jointly and severally liable for the council tax; and
c
the authority determines that discharging his entitlement by reducing the amount of his liability to which regulation 20(2) of the Council Tax (Administration and Enforcement) Regulations 1992 refers would be inappropriate,
it may make a payment to him of the amount of the reduction to which he is entitled, rounded where necessary to the nearest penny.
2
Subject to sub-paragraph (3) any payment made under sub-paragraph (1) must be made to the person who is entitled to the reduction.
3
Where a person other than a person who is entitled to a reduction under an authority’s scheme made the application and that first person is a person acting pursuant to an appointment under paragraph 4(3) or is treated as having been so appointed by virtue of paragraph 4(4), the amount of the reduction may be paid to that person. |
The Wireless Telegraphy (Register) Regulations 2012
Before making these Regulations, OFCOM have given notice of their proposal to do so in accordance with section 122(4)(a) of the Act, published notice of their proposal in accordance with section 122(4)(b) of the Act, and have considered the representations made to them before the time specified in the notice in accordance with section 122(4)(c) of the Act.
Citation, commencement and extent
1
1
These Regulations may be cited as the Wireless Telegraphy (Register) Regulations 2012 and shall come into force on 13 th September 2012.
2
These Regulations shall not extend to the Channels Islands or to the Isle of Man.
Revocation
2
The Regulations set out in Schedule 1 are hereby revoked.
Public register of information
3
OFCOM shall establish and maintain a public register of relevant information to which these Regulations apply.
Relevant information
4
1
The description of relevant information prescribed for the purposes of section 31(2) of the Wireless Telegraphy Act 2006 is information which relates to the issue, renewal or variation of wireless telegraphy licences or grants of recognised spectrum access of a class specified in Column 1 of each Part of Schedule 2 which apply to a station or apparatus operating within any of the frequency bands specified in Column 2 of the same Part and which —
a
in respect of a licence or grant of recognised spectrum access of a class specified in Column 1 of Parts 2 to 14 of Schedule 2 relates to the matters set out in paragraph (2); and
b
in respect of a licence or grant of recognised spectrum access of a class specified in Column 1 of Part 1 of Schedule 2 relates to the matters set out in both paragraphs (2) and (3).
2
The matters referred to in regulation 4(1)(a) are —
a
the identity and contact address of the holder of a wireless telegraphy licence or a grant of recognised spectrum access;
b
the reference number of a wireless telegraphy licence or a grant of recognised spectrum access; and
c
the terms, provisions or limitations of a wireless telegraphy licence or grant of recognised spectrum access which concern the following —
i
the frequency assigned or recognised; and
ii
the geographical area of reception or transmission.
3
The matters referred to in regulation 4(1)(b) are —
a
the equipment which is authorised for use;
b
the technical parameters relating to the antenna, transmitter and receiver; and
c
the power of transmission.
Hyacinth S. Nwana
Group Director, Spectrum Policy Group of the Office of Communications
For and on behalf of the Office of Communications
23rd August 2012
SCHEDULES
SCHEDULE 1
REVOCATIONS
Regulation 2
(1)
Regulations Revoked
(2)
References
The Wireless Telegraphy (Register) Regulations 2004 S.I. 2004/3155 The Wireless Telegraphy (Register) (Amendment) Regulations 2006 S.I. 2006/340 The Wireless Telegraphy (Register) (Amendment) ( No. 2) Regulations 2006 S.I. 2006/1808 The Wireless Telegraphy (Register) (Amendment) Regulations 2007 S.I. 2007/381 The Wireless Telegraphy (Register) (Amendment) (No. 2) Regulations 2007 S.I. 2007/3389
The Wireless Telegraphy (Register) (Amendment) Regulations 2008 S.I. 2008/689 The Wireless Telegraphy (Register) (Amendment) (No. 2) Regulations 2008 S.I. 2008/2104
The Wireless Telegraphy (Register) (Amendment) (No. 3) Regulations 2008
The Wireless Telegraphy (Register) (Amendment) Regulations 2009
The Wireless Telegraphy (Register) (Amendment) Regulations 2011
S.I. 2008/3193
S.I. 2009/14
S.I. 2011/439
The Wireless Telegraphy (Register) (Amendment) (No. 2) Regulations 2011 S.I. 2011/1508 The Wireless Telegraphy (Register) (Amendment) (No. 3) Regulations 2011 S.I. 2011/2756
SCHEDULE 2
CLASSES AND FREQUENCY BANDS
Regulation 4
PART 1
Column 1 Column 2 Class Frequency bands Self Coordinated Links 64–66 GHz 71.125–75.875 GHz 81.125–85.875 GHz
PART 2
Column 1 Column 2 Classes Frequency bands Broadband Fixed Wireless Access 412.0–414.0 MHz Spectrum Access 422.0–424.0 MHz 542–550 MHz 742–750 MHz 758–766 MHz 1452–1492 MHz 1785–1805 MHz 3480–3500 MHz 3580–3600 MHz 3605–3689 MHz 3925–4009 MHz 10.125–10.225 GHz 10.475–10.575 GHz 27.8285–28.4445 GHz 28.8365–29.4525 GHz 31.815–32.571 GHz 32.627–33.383 GHz 40.50–42.00 GHz 42.00–43.50 GHz
PART 3
Column 1 Column 2 Class Frequency bands Point to Point Fixed Links 1350–1530 MHz 1672–1690 MHz 3600–4200 MHz 5925–6425 MHz 6425–7125 MHz 7425–7900 MHz 10.7–11.7 GHz 12.75–13.25 GHz 14.25–15.35 GHz 17.3–19.7 GHz 21.2–23.6 GHz 24.5–26.5 GHz 32.319–32.571 GHz 33.131–33.383 GHz 37–39.5 GHz 49.2–50.2 GHz 51.4–52.6 GHz 55.78–57 GHz
PART 4
Column 1 Column 2 Class Frequency band Scanning Telemetry 457.5–464 MHz
PART 5
Column 1 Column 2 Class Frequency bands Concurrent Spectrum Access 1781.7–1785.0 MHz 1876.7–1880.0 MHz
PART 6
Column 1 Column 2 Classes Frequency bands Radio Astronomy 37.75–38.25 MHz Crown Recognised Spectrum Access 80.5–82.5 MHz Converted Spectrum Access 150.05–152.00 MHz Receive-Only Earth Stations (Fixed Satellite Service) 406.1–412 MHz
414–422 MHz
Receive-Only Earth Stations (Meteorological Satellite Service) 424–425 MHz
429–430 MHz
606–614 MHz
1400–1427 MHz
1610.6–1613.8 MHz
1660–1670 MHz
1690–1710 MHz
2690–2700 MHz
3400–3480 MHz
3500–3580 MHz
3600–4200 MHz
7750–7850 MHz
10.6–10.7 GHz
15.35–15.40 GHz
22.01–22.50 GHz 22.81–22.86 GHz 23.07–23.12 GHz 23.6–24.0 GHz 31.3–31.8 GHz 42.5–43.5 GHz 48.94–49.04 GHz
PART 7
Column 1 Column 2 Classes Frequency bands Business Radio (Simple UK ) 132–134 kHz Business Radio (Suppliers Light) 146–148 kHz Business Radio (Simple Site) 26.2–87.50 MHz Business Radio (Area Defined) 136–208 MHz Business Radio (Technically Assigned) 425–470 MHz
PART 8
Column 1 Column 2 Class Frequency bands Public Wireless Network 880–915 MHz 925–960 MHz 1710–1781.7 MHz 1805–1876.7 MHz 1899.9–1980 MHz 2110–2170 MHz
PART 9
Column 1 Column 2 Classes Frequency band Coastal Station Radio (International) 137.962–165.043 MHz Coastal Station Radio (International) Area Defined
Coastal Station Radio (Marina)
Coastal Station Radio (UK)
Coastal Station Radio (UK) Area Defined
Coastal Station Radio (Training School)
PART 10
Column 1 Column 2 Class Frequency bands Differential Global Positioning System 283–315 kHz 435–495 kHz 505–526 kHz 1625–1635 kHz 1800–1810 kHz 1850–2025 kHz 2160–2170 kHz 2625–2850 kHz 3155–3230 kHz 3500–3800 kHz
PART 11
Column 1 Column 2 Class Frequency bands Maritime Radio (Suppliers and Demonstration) 283–315 kHz 415–526 kHz 16.06–27.5 MHz 121.5 MHz 121.65 MHz 123.1 MHz 137.962–165.043 MHz 243 MHz 406–406.1 MHz 457.525 MHz 457.537 MHz 457.55 MHz 457.562 MHz 457.575 MHz 467.525 MHz 467.537 MHz 467.55 MHz 467.562 MHz 467.575 MHz 1525–1559 MHz 1626.5–1660.5 MHz
PART 12
Column 1 Column 2 Classes Frequency bands Satellite (Earth Station Network)
Satellite (Earth Station) (Non-Fixed Satellite Service)
137–138 MHz
149–149.9 MHz
2025–2110 MHz
Satellite (Earth Station) (Non-Geostationary) 2200–2290 MHz Satellite (Permanent Earth Station) 3600–4200 MHz Satellite (Transportable Earth Station) 5150–5250 MHz 5725–7075 MHz 10.7–13.25 GHz 13.75–14.5 GHz
17.3–20.2 GHz
27.5–27.8185 GHz
28.4545–28.8265 GHz 29.4625–30 GHz
PART 13
Column 1 Column 2 Class Frequency bands Satellite (Complementary Ground Components of a Mobile Satellite System) 1980–2010 MHz
2170 –2200 MHz
PART 14
Column 1 Column 2 Class Frequency bands Global Navigation Satellite System ( GNSS ) Repeaters 1164–1300 MHz
1559–1610 MHz |
The Medicines (Products for Human Use) (Fees) Regulations 2012
PART 1 General
Citation and commencement
1
These Regulations may be cited as the Medicines (Products for Human Use) (Fees) Regulations 2012 and come into force on 1st April 2012.
Interpretation
2
These Regulations shall be interpreted in accordance with Schedule 1.
PART 2 Capital Fees for Pre-Application Meetings
Interpretation of Part 2
3
In this Part —
“ EU marketing authorization” means —
a United Kingdom marketing authorization granted by the licensing authority under the Marketing Authorisation Regulations ;
a marketing authorization granted by the competent authority of an EEA State other than the United Kingdom in accordance with the 2001 Directive ; or
a European Union marketing authorization; and
“relevant medicinal product” means a medicinal product for human use to which the provisions of the 2001 Directive apply.
Fee for scientific advice: application for, or variation to, EU marketing authorization
4
Unless regulation 5 applies, the fee payable by a person with whom the licensing authority holds a meeting in order to provide scientific advice with a view to that person making an application for an EU marketing authorization or an application for the variation of an EU marketing authorization, is —
a
£2,378, if the advice provided at that meeting consists of advice in connection with —
i
quality development only; or
ii
safety development only;
b
£2,986, if the advice provided at that meeting consists only of advice in connection with clinical development;
c
£3,309, if the advice provided at that meeting consists only of advice in connection with quality and safety development;
d
£3,917, if the advice provided at that meeting consists of advice in connection with —
i
quality and clinical development; or
ii
safety and clinical development;
e
£4,849, if the advice provided at that meeting consists of advice in connection with quality, safety and clinical development.
Fee for scientific advice: classification of a medicinal product
5
1
The fee payable by a person with whom the licensing authority holds a meeting to provide scientific advice in connection with the classification of a relevant medicinal product, is —
a
£2,986, if the advice relates to a product which, if reclassified, will be available on general sale; and
b
£3,917, if the advice relates to a product which, if reclassified, will be available without a prescription from a pharmacy.
2
For the purposes of this regulation, a product is on general sale if it is a medicinal product of a description or falling within a class specified in an Order made under section 51 (general sale lists) of the Act .
Fee for advertising advice
6
The fee payable by the holder of a marketing authorization with whom the licensing authority holds a meeting in order to provide advice before the publication of advertising of a medicinal product by that holder’s undertaking on whether that advertising conforms to the requirements of Title VIII of the 2001 Directive, is £2,378.
Fee for pharmacovigilance advice
7
1
The fee payable by a person with whom the licensing authority holds a meeting in order to provide pharmacovigilance advice is —
a
£3,917, in a case where the time taken by the licensing authority to prepare for and attend the meeting is more than six hours;
b
£3,308, in any other case.
2
The time taken by the licensing authority for the purposes of paragraph (1) shall be the total time spent by each individual engaged in preparing for or attending the meeting on behalf of the licensing authority.
Fee for advice on labelling or leaflets
8
The fee payable by the holder of one or more marketing authorizations with whom the licensing authority holds a meeting in order to provide advice on proposed changes to the labelling or the package leaflets of the medicinal products to which those authorizations relate, is £2,378.
Fee for regulatory advice
9
The fee payable by the holder of a marketing authorization with whom the licensing authority holds a meeting in order to provide regulatory advice to that person, is £2,986.
Fee for advice for other purposes
10
1
Unless paragraph (4) applies, the fee payable by a person specified in paragraph (2) with whom the licensing authority holds a meeting for a purpose specified in paragraph (3) is £4,810.
2
A person who —
a
is, or is to be, a sponsor of a clinical trial;
b
manufactures medicinal products;
c
is, or is to be, responsible for placing medicinal products on the market; or
d
acts on behalf of, or provides advice or assistance to, a person referred to in sub-paragraphs (a) to (c),
is a specified person for the purpose of paragraph (1).
3
A meeting referred to in paragraph (1) is for a specified purpose if it is held to provide advice in relation to —
a
scientific or regulatory issues relating to the development of a medicinal product or a type of medicinal product;
b
the design of pharmaceutical or pre-clinical tests, or clinical trials, for a medicinal product or a type of medicinal product;
c
the management of risk in relation to a medicinal product or a type of medicinal product which is under development, or is being marketed in the European Union; or
d
other scientific or regulatory issues relating to a medicinal product or a type of medicinal product after an EU marketing authorization has been granted for that product or a product of that type.
4
Paragraph (1) does not apply in the case of a meeting where the purpose of such a meeting is to provide only advice specified in regulations 4 to 9.
5
In this regulation —
“Directive 93/42/ EEC ” means Council Directive 93/42/EEC concerning medical devices ;
“medical device” has the same meaning as in Article 1(2)(a) of Directive 93/42/EEC ;
“medicinal product” includes a substance incorporated in a medical device which, if used separately, may be considered to be a medicinal product as defined in Article 1(2) of the 2001 Directive;
“regulatory issues” means issues relating to the application of any EU instrument relating to EU marketing authorizations or to medical devices, or any enactment which implements such an instrument;
“risks” means any risk relating to the quality, safety or efficacy of a medicinal product as regards patients’ health or public health, or any risk of undesirable effects on the environment;
“sponsor” shall be interpreted in accordance with regulation 3 (sponsor of a clinical trial) of the Clinical Trials Regulations ;
and a reference to the development of a medicinal product or a type of medicinal product is a reference to development for the purposes of —
a
obtaining an EU marketing authorization, or making a variation to an EU marketing authorization, for that product or a product of that type; or
b
obtaining a design-examination certificate of the type mentioned in paragraph 4.3 of Annex II to Directive 93/42/EEC or a type-examination certificate of the type mentioned in paragraph 5 of Annex III to that Directive, for a medical device incorporating that product or a product of that type.
Time for payment of fees under regulations 4 to 10
11
All sums payable by way of fees under regulations 4 to 10 must be paid within a period of 14 days, commencing on the date of the written notice issued by the licensing authority requiring payment of those fees.
PART 3 Capital Fees for Applications for Authorizations, Registrations, Licences, Certificates or Authorisations and for Associated Inspections
Fees for applications for authorizations, licences or certificates etc.
12
1
Unless Part 16 of these Regulations (revocations and savings) applies, the application fee for a marketing authorization (other than a European Union marketing authorization), a traditional herbal registration, a manufacturer’s licence, a manufacturing authorisation, a wholesale dealer’s licence or a clinical trial authorisation is —
a
the fee prescribed for that application in Part 2 of Schedule 2; and
b
in respect of an inspection of a site made in connection with that application, the fee payable in accordance with regulations 27 to 32.
2
Unless regulation 28 applies, the fee in paragraph (1) is payable by the applicant.
Fee for applications for copy certificates of good manufacturing practice
13
The fee payable by an applicant for a certified copy of a certificate of good manufacturing practice issued pursuant to Article 111(5) of the 2001 Directive is £67.
Fees for applications for certificates and copy certificates by exporters of medicinal products
14
1
The fee payable by an applicant for a certificate issued under section 50 (export certificates) of the Act , is —
a
£148, if the applicant requests the certificate to be issued within 24 hours of receipt of the application; and
b
£67 in any other case.
2
The fee in paragraph (1)(a) and (b) is for three identical signed certificates.
3
The fee payable by the applicant for a certified copy of the certificate referred to in paragraph (1) is £33.
PART 4 Capital Fees for Assistance in Obtaining Marketing Authorizations in Other EEA States
Meaning of “set of applications”
15
For the purposes of this Part, a “set of applications” means —
a
a number of applications to the licensing authority for regulatory assistance in connection with obtaining recognition according to the procedure laid down in Title III, Chapter 4 of the 2001 Directive of a single United Kingdom marketing authorization in other EEA States, but only if all the applications relate to applications for marketing authorizations in other EEA States that have the same 90 day assessment period for the purposes of Article 28(4) of the 2001 Directive; or
b
a number of applications to competent authorities of other EEA States for marketing authorizations relating to a single United Kingdom marketing authorization, but only if all the applications have the same 90 day assessment period for the purposes of Article 28(4) of the 2001 Directive.
Fees for applications for regulatory assistance under the mutual recognition procedure
16
The fee payable by an applicant to the licensing authority for regulatory assistance in connection with obtaining recognition according to the procedure laid down in Title III, Chapter 4 of the 2001 Directive of a single United Kingdom marketing authorization in another EEA State or in other EEA States, is the fee prescribed in Part 3 of Schedule 2 in connection with the application or set of applications.
Time for payment of fees under regulation 16
17
Unless regulation 46 (applications made by small companies) applies, all sums payable by way of fees under regulation 16 must have been paid at the time when, in connection with the application or set of applications for regulatory assistance, a request is made pursuant to the second sub-paragraph of Article 28(1) of the 2001 Directive for an assessment report to be prepared or updated.
PART 5 Capital Fees for Applications for Variations of Authorizations, Registrations, Licences and Authorisations and for Associated Inspections
Fees for variations of authorizations, registrations, licences and authorisations
18
1
Unless Part 16 of these Regulations (revocations and savings) applies, the fee for an application —
a
under regulation 4 (applications for the grant, renewal or variation of a United Kingdom marketing authorization) of the Marketing Authorisation Regulations for the variation of a United Kingdom marketing authorization;
b
under regulation 6 (consideration and grant or refusal, of an application for, or for renewal or variation of, a traditional herbal registration) of the Herbal Regulations for the variation of a traditional herbal registration;
c
under section 30 (variation of licence on application of holder) of the Act for the variation of a product licence, a manufacturer’s licence or a wholesale dealer’s licence; or
d
under regulation 44 (variation of manufacturing authorisation) of the Clinical Trials Regulations for the variation of a manufacturing authorisation,
is the fee mentioned in paragraph (2).
2
The fee referred to in paragraph (1) is —
a
the fee prescribed in Part 4 of Schedule 2 in connection with the application; and
b
in respect of an inspection of a site made in connection with the application, the fee payable in accordance with regulations 27 to 29 and 31.
3
Unless regulation 28 applies, the fee in paragraph (1) is payable by the applicant.
Fees for amendments to clinical trial authorisations
19
1
A person who sends a valid notice of amendment under regulation 24 (amendments by the sponsor) of the Clinical Trial Regulations relating to amendment of the dossier accompanying a request for authorisation in accordance with paragraph 11 of Part 2 of Schedule 3 (request for authorisation) to those Regulations must pay the fees mentioned in paragraph (2).
2
The fees referred to in paragraph (1) are —
a
the fee prescribed in paragraph 44 of Schedule 2 in connection with that amendment; and
b
in respect of an inspection of a site made in connection with the application, the fee payable in accordance with regulations 27 to 29 and 31.
Applications for multiple variations
20
1
Unless paragraph (3) or (5) applies, a separate fee is payable in respect of each application to vary each term of a marketing authorization.
2
Unless paragraph (5) applies, a separate fee is payable in respect of each variation of each provision of a traditional herbal registration, manufacturing authorisation or licence applied for in any one application.
3
A separate fee is not payable for each application to vary a term of a marketing authorization which —
a
falls within the same type of group application; or
b
the licensing authority —
i
in consultation with other Member States concerned, have agreed, in accordance with Article 7(2)(b) of EC Regulation No. 1234/2008 , should be subject to the procedure for grouping of variations within the meaning of that Article; and
ii
have agreed fall, or should be treated as falling, within the same type of group application.
4
For the purposes of paragraph (3) the reference to a group application means an application which is a —
a
Minor Variation (Type IB) Group Application;
b
Major Variation (Type II) Group Application;
c
Major Variation (Type II) Complex Group Application; or
d
Major Variation (Type II) Extended Complex Group Application.
5
A separate fee is not payable for a variation which is wholly consequential upon another variation of a provision of a marketing authorization, traditional herbal registration, manufacturing authorisation or licence which is applied for in the same application.
6
In a case where a recommendation on the classification of a variation is made in accordance with Article 5 of EC Regulation No. 1234/2008, the fee payable for the application made in respect of that variation shall be the appropriate fee for the classification given to the variation or, as the case may be, the appropriate fee which arises as a consequence of the classification given to the variation.
7
In this regulation and Part 4 of Schedule 2 —
“Major Variation (Type II) Group Application” means an application for several variations to one marketing authorization and —
at least one of the variations is a major variation of type II;
subject to sub-paragraph (c), the variations fall within the scope of Article 7(2)(b) of EC Regulation No. 1234/2008;
the variations do not include a variation —
of a kind referred to in paragraph 1 (extension of the marketing authorisation) or paragraph 3 (minor variation of type IB and consequential variations) of Annex III to EC Regulation No. 1234/2008;
which relates to a change which is referred to in paragraph 23 of Schedule 2 (Type II Complex Variation Application); or
of a marketing authorization so that the medicinal product is indicated for a use referred to in paragraph 9(a) or (b) of Schedule 2 (Extended Type II Complex Variation Application); and
the variations may include one or more minor variations of type IA or one or more minor variations of type IB;
“Major Variation (Type II) Complex Group Application” means an application for several variations to one marketing authorization and —
at least one of the variations relates to one or more of the changes referred to in paragraph 23 of Schedule 2;
subject to sub-paragraph (c), the variations fall within the scope of Article 7(2)(b) of EC Regulation No. 1234/2008;
the variations do not include a variation of —
a kind referred to in paragraph 1 or paragraph 3 of Annex III to EC Regulation No. 1234/2008; or
a marketing authorization so that the medicinal product is indicated for a use referred to in paragraph 9(a) or (b) of Schedule 2; and
the variations may include one or more minor variations of type IA or one or more minor variations of type IB or one or more major variations of type II;
“Major Variation (Type II) Extended Complex Group Application” means an application for several variations to one marketing authorization and —
at least one of the variations is a variation to a marketing authorization so that the medicinal product is indicated for a use referred to in paragraph 9(a) or (b) of Schedule 2;
subject to sub-paragraph (c), the variations fall within the scope of Article 7(2)(b) of EC Regulation No. 1234/2008;
the variations do not include a variation of a kind referred to in paragraph 1 of Annex III to EC Regulation No. 1234/2008; and
the variations may include minor variations of type IA, minor variations of type IB or other major variations of type II or a variation relating to a change referred to in paragraph 23(a), (b) or (c) of Schedule 2;
“major variation of type II” has the meaning given in Article 2(3) of EC Regulation No. 1234/2008;
“Minor Variation (Type IB) Group Application” means an application for several variations to one marketing authorization and —
at least one of the variations is a minor variation of type IB;
subject to sub-paragraph (c), the variations fall within the scope of Article 7(2)(b) of EC Regulation No. 1234/2008;
the variations do not include —
a variation of a kind referred to in paragraph 1 or paragraph 2 of Annex III of EC Regulation No. 1234/2008; or
a major variation of type II; and
the variations may include one or more minor variations of type IA;
“minor variation of type 1A” has the meaning given in Article 2(2) of EC Regulation No. 1234/2008;
“minor variation of type 1B” has the meaning given in Article 2(5) of EC Regulation No. 1234/2008; and
“work sharing” means the work sharing procedure within the meaning of Article 20 of EC Regulation No. 1234/2008.
PART 6 Capital Fees for Assessment of Labels and Leaflets
Meaning of “set of proposed changes”
21
For the purposes of this Part and Part 5 of Schedule 2, a “set of proposed changes” means a number of proposed changes to the labelling or package leaflet of a medicinal product, where —
a
if there is more than one version of the labelling or package leaflet for that product, those changes all relate to the same version; and
b
those changes are submitted to the licensing authority at the same time.
Fees for assessment of a set of proposed changes to labels and leaflets
22
1
Unless paragraph (2) applies, where —
a
a set of proposed changes to the labelling or the package leaflet of a medicinal product which is the subject of a United Kingdom marketing authorization (other than a parallel import licence) is submitted to the licensing authority in accordance with Article 61(3) of the 2001 Directive; or
b
a set of proposed changes to the labelling or the package leaflet of a medicinal product which is the subject of a parallel import licence is submitted to the licensing authority,
the fee payable by the holder of that authorization or licence is the fee prescribed in Part 5 of Schedule 2 in connection with that change.
2
Paragraph (1) does not apply where a change to the labelling or package leaflet of a medicinal product is proposed in connection with an application for the variation of the marketing authorization for that product.
Time for payment of fees under regulation 22
23
All sums payable by way of fees under regulation 22(1) must be paid by the time that the proposed changes are submitted to the licensing authority.
PART 7 Capital Fees for Applications for Renewals of Certain Licences, Authorizations and Registrations and for Associated Inspections
Fees for renewals of certain manufacturer’s licences
24
1
The fee payable by the applicant for an application to renew a manufacturer’s licence which falls within the description in paragraph (2) is £174.
2
The licence referred to in paragraph (1) is one —
a
which is solely for the manufacture of medicinal products the sale or supply of which does not require a marketing authorization or a product licence; and
b
to which article 2(2)(i)(e) (exemptions for certain special manufactured products) of the Medicines (Exemption from Licences) (Special and Transitional Cases) Order 1971 applies.
3
Where an inspection of a site is made in connection with the application referred to in paragraph (1) an inspection fee of £287 is also payable by the applicant.
Fees for renewals in terms which are not identical to the existing authorization, licence or registration
25
Where an applicant applies for renewal of a —
a
marketing authorization (other than a European Union marketing authorization);
b
traditional herbal registration, or
c
manufacturer’s licence,
so as to contain provisions which are not identical to those in the authorization, registration or licence as in force at the date of the application, the fee payable under this Part is increased by an amount equal to the fee which would have been payable under Part 5 of these Regulations had the applicant made a separate application for variation of that authorization, registration or licence in respect of each provision which is not identical.
PART 8 Capital Fees for Regulatory Assistance Given by the United Kingdom Acting as Reference Member State Relating to the Assessment of Applications for the Renewal of Specified Marketing Authorizations
Fees for regulatory assistance for certain marketing authorizations
26
1
Where —
a
an application is made to the licensing authority for the renewal of a United Kingdom marketing authorization for a medicinal product which has been subject to the procedures specified in paragraph (2); and
b
the United Kingdom is to provide regulatory assistance acting as reference Member State in relation to that application,
the fee payable by the applicant is the fee prescribed in Part 6 of Schedule 2 in connection with that regulatory assistance.
2
The procedures referred to in paragraph (1) are —
a
the procedures laid down in Articles 7 and 7a of Council Directive 65/65/EEC on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products and in Articles 17 and 18 of the 2001 Directive;
b
the procedures laid down in Article 9(4) of Directive 75/319/EEC and in Article 28 of the 2001 Directive;
c
the procedures laid down in Articles 10 to 14 of Directive 75/319/EEC and in Articles 29 to 34 of the 2001 Directive;
d
referral to the Committee for Proprietary Medicinal Products in accordance with Council Directive 87/22/EEC on the approximation of national measures relating to the placing on the market of high-technology medicinal products, particularly those derived from biotechnology , if the opinion of the Committee in accordance with Article 4(1) of that Directive was given before 1st January 1995.
3
For the purposes of this regulation and Part 6 of Schedule 2, the United Kingdom provides regulatory assistance acting as reference Member State if —
a
the licensing authority prepares or updates an assessment report in respect of the medicinal product to which the renewal application relates in order to make it available to the competent authorities of another EEA State; and
b
an application to renew the marketing authorization relating to that product has been made in that other EEA State.
PART 9 Capital Fees for Inspections
Fees for inspections
27
1
Unless Part 16 of these Regulations applies, a fee is payable in accordance with —
a
paragraphs 1 to 7 of Schedule 3 for any inspection of a site made in connection with an application for, or during the currency of, a marketing authorization, a traditional herbal registration, a clinical trial authorisation, a manufacturing authorisation, a manufacturer’s licence or a wholesale dealer’s licence, except for an inspection for which a fee is payable under regulation 24 or 30; and
b
paragraphs 1 and 8 of Schedule 3 for any inspection comprising an office-based evaluation and risk assessment of documentation but not involving inspection of a site, in connection with the monitoring of —
i
good manufacturing practice;
ii
good clinical practice;
iii
good pharmacovigilance practice; or
iv
good distribution practice.
2
Unless regulation 28 or 29 applies, the fee in paragraph (1) is payable by the holder of, or as the case may be, applicant for, the authorization, registration, authorisation or licence in relation to which the inspection is made.
Payer of inspection fee (contract laboratories and API manufacturing sites)
28
Where an inspection is made of a contract laboratory or a site used by an API manufacturer the fee is payable by the operator of that laboratory, or as the case may be, that API manufacturer.
Inspections in connection with multiple applications
29
1
Unless paragraph (4) applies, where an inspection is made outside the United Kingdom at a site which is named as a possible site for the manufacture or assembly of a medicinal product, or for the preparation of a substance which is to be used in the manufacture of an immunological product or a blood product —
a
in more than one marketing authorization, clinical trial authorisation, traditional herbal registration; or
b
by more than one applicant for such an authorisation or licence,
the fee for the inspection referred to in regulation 27(1) is payable in equal proportions by the holders of, or as the case may be, applicants for, the authorization, registration, authorisation, or licence.
2
In paragraph (1), the reference to an applicant for a clinical trial authorisation is a reference to a person who sends a valid notice of amendment as mentioned in regulation 19(1).
3
Where an inspection is made in the United Kingdom at a site which is named as a possible site for the manufacture or assembly of a medicinal product, or the preparation of a substance which is to be used in the manufacture of an immunological product or a blood product —
a
in more than one manufacturer’s licence or manufacturing authorisation; or
b
by more than one applicant for such a licence or authorisation,
the fee for the inspection referred to in regulation 27(1) is payable in equal proportions by each applicant.
4
This regulation does not apply if the inspection is made of a contract laboratory or a site used by an API manufacturer.
Fees for inspections relating to good clinical practice in clinical trials
30
A fee in accordance with paragraph 2 of Schedule 3 is payable by a person in respect of an inspection of one or more sites for the purpose of ascertaining whether that person —
a
is —
i
conducting, or has conducted, a clinical trial, or
ii
performing, or has performed, the functions of a sponsor of a clinical trial (whether that person is the sponsor or is acting under arrangements made with that sponsor),
in accordance with good clinical practice, pursuant to regulation 28(1) (good clinical practice and protection of clinical trial subjects) of the Clinical Trials Regulations; or
b
has put and kept in place arrangements for the purpose of ensuring that with regard to a clinical trial the requirements of good clinical practice are satisfied or adhered to, pursuant to regulation 28(2) of those Regulations.
Amount, and time for payment, of inspection fees in respect of an application for a wholesale dealer’s licence
31
1
All sums payable by way of fees in respect of any inspection of a site in connection with an application for a wholesale dealer’s licence under regulation 27(1) must be paid —
a
in advance of an application; or
b
at the time that application is made.
2
Except where paragraph (3) applies, the inspection fee payable as a consequence of paragraph (1) shall be the amount specified in paragraph 5(a) of Schedule 3.
3
In a case where —
a
the site to be inspected falls within the description specified in paragraph 7(1)(a) or (b) of Schedule 3; or
b
the total turnover in respect of sales by way of wholesale dealing in authorised medicinal products of the wholesale dealer does not exceed £35,000 (within the meaning given in paragraph 7(2) of that Schedule),
the inspection fee payable as a consequence of paragraph (1) shall be the amount specified in paragraph 5(b) of Schedule 3.
Adjustment and refund of inspection fees in respect of a wholesale dealer’s licence
32
1
If the inspection in respect of an application for a wholesale dealer’s licence takes —
a
in the case where regulation 31(2) applies, more than 7 hours; or
b
in the case where regulation 31(3) applies, more than 3 hours and 30 minutes,
a further fee of the amount specified in paragraph 5(b) of Schedule 3 for each subsequent period of 3 hours and 30 minutes or less is payable by the applicant.
2
The fee payable under paragraph (1) must be paid within a period of 14 days commencing on the date of the written notice issued by the licensing authority requiring payment of those fees.
3
The licensing authority shall refund the whole of the inspection fee paid where, after an inspection fee is paid as a consequence of regulation 31, the application for a wholesale dealer’s licence is withdrawn —
a
before a date on which the inspection is due to take place is arranged with or notified to the applicant; or
b
in the case where a date on which the inspection is due to take place is fixed, 15 or more days before the date on which that inspection is due to take place.
PART 10 Periodic Fees for Authorizations, Registrations, Licences and Authorisations
Periodic fees
33
1
Unless paragraph (4), (5) or (6) or Part 16 of these Regulations (revocations and savings) applies, the periodic fee must be paid for each fee period during which the marketing authorization, registration, authorisation or licence is in force, even if it is in force for only part of that fee period.
2
For the purposes of paragraph (1), marketing authorizations of a type referred to in Part 3 of Schedule 4 shall be treated as if they were one marketing authorization and only one periodic fee in respect of each relevant fee period is payable in connection with the holding of such authorizations.
3
The periodic fee is the appropriate fee prescribed in Part 3 of Schedule 4 and, for the purposes of that Part, Parts 1 and 2 of that Schedule have effect.
4
No periodic fee is payable in respect of the fee period during which a marketing authorization or a traditional herbal registration is first granted unless the authorization or registration is granted pursuant to —
a
a change of ownership application; or
b
an application for a marketing authorization or traditional herbal registration which —
i
is for a product for which an authorization or registration has expired;
ii
will contain identical provisions to those contained in the expired authorization or registration;
iii
is made by the person who held the expired authorization or registration; and
iv
is made no later than three months after the expiry of the authorization or registration referred to in paragraph (i),
and, in each case, a periodic fee has not been paid in respect of that fee period in connection with the expired marketing authorization or a traditional herbal registration.
5
An authorization, registration, authorisation or licence which is in force is treated for the purposes of this regulation as not being in force during any part of a fee period if —
a
at least three months before the commencement of that fee period, the holder of that authorization, registration, authorisation or licence has given written notice to the licensing authority indicating that he wishes it to cease to have effect before the commencement of that period; and
b
no products are sold, supplied or manufactured pursuant to that authorization, registration authorisation or licence within that fee period.
6
No periodic fee is payable in respect of the fee period during which a manufacturing authorisation, a manufacturer’s licence or wholesale dealer’s licence is first granted unless —
a
that authorisation or licence is granted pursuant to a change of ownership application; and
b
a periodic fee has not been paid in respect of that fee period in connection with the manufacturing authorisation or manufacturer’s licence or wholesale dealer’s licence which is mentioned in that application in the statement of intention to cease activities.
Periodic fees for clinical trial authorisations
34
1
Unless paragraph (3) applies, the holder of a clinical trial authorisation must pay the periodic fee for each fee period during which the authorisation is in force, even if the authorisation is in force for only part of that fee period.
2
The periodic fee is the fee prescribed in paragraph 16 of Part 3 of Schedule 4.
3
No periodic fee is payable in respect of the fee period during which the clinical trial to which the authorisation relates was authorised by the licensing authority in accordance with regulation 18 (authorisation procedure for clinical trials involving general medicinal products), 19 (authorisation procedure for clinical trials involving medicinal products for gene therapy etc.) or 20 (authorisation procedure for clinical trials involving medicinal products with special characteristics) of the Clinical Trials Regulations .
PART 11 Capital Fees For Application For Membership of Good Clinical Practice Accreditation Scheme and for Certificate of Membership
Meaning of “good clinical practice accreditation scheme”
35
In this Part —
“good clinical practice accreditation scheme” means the non-statutory voluntary scheme of accreditation operated by the licensing authority in relation to Phase 1 trials which participants may join following satisfactory completion of a good clinical practice inspection; and
“Phase 1 trials” are clinical trials to study the pharmacology of a medicinal product when administered to humans, where the sponsor and investigator have no knowledge of any evidence that the product has effects likely to be beneficial to the subjects of the trial.
Fees for applications for membership and certificates
36
1
The fee payable by an applicant for membership of the good clinical practice accreditation scheme is £126.
2
The fee payable by an applicant for a certificate of membership of the good clinical practice accreditation scheme is £67.
PART 12 Capital Fee for a Person Appointed Hearing
Fee for a person appointed hearing
37
1
The fee payable by an applicant or holder of an authorization, licence, authorisation or certificate of registration or sponsor or investigator who gives notice, under any of the provisions specified in paragraph (2), of their wish to make further representations to the licensing authority or appear before or be heard by a person appointed by the licensing authority, is £10,000.
2
The specified provisions are —
a
section 21(11) (licence under Part I of the Act where the appropriate committee are consulted), 22(3) (licence under Part I of the Act where the appropriate committee are not consulted or have been consulted but have not given a provisional opinion) or 27(3) (licence of right) of the Act, and paragraph 5 (product licence) or paragraph 6 (licence under Part 2 of the Act other than a product licence) of Schedule 2 to the Act ;
b
paragraph 3 of Schedule 5 (procedural provisions relating to the refusal or amendment of, or imposition of conditions relating to, clinical trial authorisations and the suspension or termination of clinical trails) and paragraph 4 of Schedule 8 (procedural provisions relating proposals to grant, refuse to grant, vary, suspend or revoke manufacturing authorisations) to the Clinical Trials Regulations ;
c
paragraph 12 (traditional herbal registration), paragraph 17 (variation of registration) or paragraph 20 (decision to refer application to the Committee) of Schedule 2 to the Herbal Regulations;
d
paragraph 11 (marketing authorizations) or paragraph 16 (Type II variation applications) of Schedule 2 to the Marketing Authorisation Regulations ; or
e
paragraph 12 of Schedule 5 (procedural provisions relating to the grant, renewal, variation, revocation and suspension of certificates of registration) to the Homoeopathic Regulations .
3
The licensing authority will refund to that person —
a
60% of that fee if the person withdraws the notice two weeks before the commencement of the hearing before the person appointed;
b
100% of that fee if, in respect of the hearing before a person appointed, the decision notified by the licensing authority is —
i
not to revoke, vary, suspend or terminate, as the case may be, the authorization, licence, authorisation or certificate of registration; or
ii
to grant or renew, as the case may be, the authorization, licence, authorisation or certificate of registration.
Time for payment under regulation 37
38
The fee prescribed in regulation 37 is payable at the time the notice is given.
PART 13 Fees in relation to the Medicines (Homoeopathic Medicinal Products for Human Use) Regulations 1994
Interpretation
39
1
In this Part —
“administrative variation” means a variation of the provisions of a certificate of registration which does not require, in the opinion of the licensing authority, medical, scientific or pharmaceutical assessment;
“application” means an application for the grant of a certificate of registration;
“application to the licensing authority for regulatory assistance” in relation to a single certificate of registration means —
a single application of that type, or
a set of applications of that type;
“application for an EC registration in a concerned Member State” in relation to a single certificate of registration means —
a single application of that type, or
a set of applications of that type in a number of concerned Member States;
“decentralised procedure application” means an application relating to a homoeopathic medicinal product in respect of which at the time of the application —
an EC registration has been granted in an EEA State; and
an application for an EC registration has been made in more than one EEA State under Article 28(1) and (3) of the 2001 Directive;
“EC registration” means a registration granted by a competent authority of an EEA State in accordance with the procedure set out in Article 14 of the 2001 Directive;
“formulation” does not include the formulation of homoeopathic stock;
“identical” means —
in relation to the formulation of the product, identical as regards the requirements in respect of composition, preparation and testing; and
in relation to a homoeopathic stock, identical as regards the source, composition and preparation of the stock and the test which it is required to undergo;
“mutual recognition procedure incoming application” means an application relating to a homoeopathic medicinal product in respect of which —
an EC registration has already been granted in another EEA State; and
recognition of that certificate is sought from the licensing authority by way of the grant of a certificate of registration in the United Kingdom, under the procedure in Articles 28 and 29(1) to (3) of the 2001 Directive;
“product” includes a series of products each of which is prepared from identical homoeopathic stocks;
“set of applications” means —
a number of applications to the licensing authority for regulatory assistance in connection with obtaining recognition according to the procedure laid down in Articles 28 and 29(1) to (3) of the 2001 Directive of a single certificate of registration in other EEA States, where those applications to the licensing authority all relate to applications for EC certificates of registration in other EEA States that have the same 90 day assessment period for the purposes of Article 28(4) of the 2001 Directive; or
a number of applications to competent authorities of other EEA States for EC certificates of registration relating to a single certificate of registration, where those applications all have the same 90 day assessment period for the purposes of Article 28(4) of the 2001 Directive; and
“standard variation” means a variation of the provisions of a certificate of registration which, in the opinion of the licensing authority, requires medical, scientific or pharmaceutical assessment and which requires in respect of any homoeopathic medicinal products to which that certificate relates —
the replacement of an excipient used in the manufacture of the product with a comparable excipient;
the replacement of a reagent indirectly associated with the manufacturing process of the product or which disappears from that process with a comparable reagent;
a change to the qualitative composition of the container or other form of packaging immediately in contact with the product;
a minor change to the method of manufacture of a homoeopathic stock included in the product;
a change to the specification of any reagent or excipient used in the manufacture of the product;
a change to the finished product specification of the product;
a change to the test procedure for any raw material used in the manufacture of the product;
a change to the test procedure of the product;
a change to the test procedure for the container or other form of packaging immediately in contact with the product;
a change to comply with a supplement to the European Pharmacopoeia or any national pharmacopoeia of a member State;
a change to the shape of the container in which the product may be placed on the market;
an additional pack size in which the product may be placed on the market;
a change to the approved storage conditions for the product;
a change to the shelf life of an unopened container of the product or to the shelf life of the product after the container has been opened for the first time;
a change to the dimensions of an approved dosage form of the product (for example, tablets) which does not entail a change to the quantitative composition or the mean mass of the product; or
a change following modification to the manufacturing authorisation.
2
In this Part —
a
any expression which is defined in the Act shall have the same meaning which it has in the Act;
b
any expressions which are also used in the 2001 Directive shall have the same meaning as they have in the 2001 Directive and related expressions shall be interpreted accordingly;
c
any reference to doing anything in accordance with a certificate of registration shall be interpreted in accordance with section 132(3) of the Act (general interpretation provisions); and
d
any reference to the holder of a certificate of registration shall be interpreted as a reference to the holder of such a certificate which is for the time being in force.
Fees for applications made at the invitation of the licensing authority
40
No fee shall be payable under this Part in connection with an application for the grant or variation of a certificate of registration under the Homoeopathic Regulations where the application is made at the specific request of the licensing authority.
Fees for applications for certificates
41
1
The fee payable by a person who makes an application for the grant of a certificate of registration under regulation 4 of the Homoeopathic Regulations shall be the fee specified in the Table in Schedule 5 to these Regulations according to the type of application.
2
The fee payable by a person who makes an application or set of applications to the licensing authority for regulatory assistance in connection with obtaining recognition in accordance with the procedure laid down in Articles 28 and 29(1) to (3) of the 2001 Directive of a single certificate of registration in another EEA State, shall be the fee specified in item 4 of the Table in Schedule 5 to these Regulations.
Fees for variations of certificates
42
1
The fee payable by an applicant in connection with an application for an administrative variation of a certificate of registration shall be —
a
where more than one application for an administrative variation is made at the same time by the same applicant and the applications are for identical variations —
i
in respect of the first application considered by the licensing authority, a fee of £133, and
ii
in respect of each other application so considered, a fee of £67;
b
in any other case, a fee of £133.
2
The fee payable by an applicant in connection with an application for a standard variation of a certificate of registration shall be —
a
where more than one application for a standard variation is made at the same time by the same applicant and the applications are for identical variations —
i
in respect of the first application considered by the licensing authority, a fee of £263;
ii
in respect of each other application so considered, where further medical, technical or scientific assessment is required, a fee of £263;
iii
in respect of the second to thirtieth applications so considered, where no further medical, technical or scientific assessment is required, a fee of £133;
iv
in respect of each other application so considered, where no further medical, technical or scientific assessment is required, a fee of £67;
b
in any other case, a fee of £263.
Time for payment of fees
43
1
Any fee payable under regulation 41(1) or 42 shall be payable to the licensing authority —
a
in advance of the application; or
b
at the time the application for grant or variation of the certificate of registration is made.
2
Any fee payable under regulation 41(2) shall be payable to the licensing authority —
a
in advance of any request; or
b
at the time when, in connection with the application or set of applications for regulatory assistance, a request is made under Article 28(2) of the 2001 Directive for an assessment report to be prepared or updated.
PART 14 Administration
Payment of fees to Ministers
44
Any sum payable under these Regulations must be paid to one of the Ministers.
Time for payment of capital fees in connection with applications or inspections
45
1
All capitals fees under these Regulations shall be payable in accordance with —
a
the specified provisions in paragraph (2) where appropriate, and
b
paragraph (3).
2
The specified provisions are —
a
regulation 10 (pre-application meetings);
b
regulation 16 (regulatory assistance);
c
regulation 22 (change to labels and leaflets);
d
regulation 31 (inspections in respect of wholesale dealer’s licence);
e
regulation 37 (person appointed hearings); and
f
regulation 46 (small companies).
3
All fees payable under this regulation —
a
in respect of inspections made either in connection with an application for, or during the currency of, an authorization, licence or certificate must be paid within a period of 14 days commencing on the date of the written notice issued by the licensing authority requiring payment of those fees; and
b
in connection with any application, must have been paid at the time of the application or before.
Time for payment of capital fees – applications made by small companies
46
1
Schedule 6 shall have effect with respect to the capital fee payable in connection with an application made by or on behalf of a small company.
2
For the purpose of these Regulations, a company is a small company if, for the financial year before that in which the application is made, the total value of products it has sold or supplied for the financial year is not more than the amount for the time being specified under the heading “Small company” in item 1 in section 382(3) (qualification of company as small) of the Companies Act 2006 and the conditions in paragraph (3) are met.
3
The conditions for the purposes of paragraph (2) are —
a
the company’s balance sheet total as defined in section 382(5) of the Companies Act 2006 is not more than the amount for the time being specified under the heading “Small company” in section 382(3) of that Act; or
b
the average number of persons employed by the company in the financial year before that in which the application is made (determined on a weekly basis) does not exceed the number for the time being specified under the heading “Small company” in section 382(3) of that Act.
Payment of fees in respect of a traditional herbal registration
47
1
Where an application is made for the grant of a traditional herbal registration —
a
in accordance with regulation 5 (applications for the grant or renewal of a traditional herbal registration) of the Herbal Regulations;
b
on the grounds specified in paragraph (2); and
c
in respect of a medicinal product which falls within the description in paragraph (3),
the fee payable under regulation 12 shall be refunded or, if it has not been paid, shall be waived.
2
For the purposes of paragraph (1), the specified grounds are —
a
that the marketing authorization in respect of the medicinal product in question; or
b
in the case of a corresponding product the marketing authorization relating to product Y (as defined in paragraph (4)),
is to be revoked.
3
A medicinal product falls within this paragraph if —
a
a marketing authorization held by the applicant was granted under the Marketing Authorisation Regulations in respect of that medicinal product; or
b
that medicinal product is a corresponding product.
4
For the purposes of paragraph (3), a corresponding product is a product which is characterised by having —
a
the same active ingredients, irrespective of the excipients used or reduction in the number or quantity of active ingredients;
b
the same or similar intended purpose, equivalent strength and posology; and
c
the same or similar route of administration,
as a medicinal product (“product Y”) in respect of which a marketing authorization held by the applicant was granted under the Marketing Authorisation Regulations.
5
Where the licensing authority determines that the marketing authorizations in respect of the medicinal product in question or the marketing authorization in respect of product Y should not be revoked, the fee payable under regulation 12 which has been refunded or waived shall become payable within a period of 14 days commencing on the date of the written notice issued by the licensing authority requiring payment of those fees.
Time for payment of periodic fees
48
All periodic fees must be paid by the first day of the fee period to which they relate.
Penalty fees for late payment of periodic fees
49
1
Subject to paragraph (2), if a person has failed to pay a periodic fee by the time it has become payable under regulation 48, a penalty fee is payable by that person.
2
A penalty fee is payable only if, after a period of 60 days commencing on the date of the written notice (“the notice”) issued by the licensing authority requiring payment of that fee, the fee remains unpaid.
3
Unless regulation 50 applies, where a periodic fee remains unpaid after 60 days commencing on the date of the notice, the penalty fee is —
a
£100 where the total unpaid fee exceeds £200; or
b
£50 where the total unpaid fee does not exceed £200.
4
In paragraph (3), the “total periodic fee” means the total of all the periodic fees payable by a person in connection with all the authorizations, registrations, authorisations or licences held by that person.
Daily penalty fees for late payment of periodic fees
50
If the periodic fee and penalty fee under regulation 49 (“the outstanding amount”) have not been paid within a period of 90 days commencing on the date of the written notice issued by the licensing authority, the amount of penalty fee payable shall be the amount specified in regulation 49(3) plus £5 for each day of the period which —
a
begins with the day 90 days from the date of the written notice; and
b
ends with the day before that on which payment of the outstanding amount is actually made.
Refund or waiver of fees under regulation 49 or 50
51
The licensing authority may refund or waive payment of the penalty fee, or reduce the amount payable, where it is satisfied that the holder of the authorization, registration, authorisation or licence was not responsible for the failure to pay the periodic fee within the period specified in regulation 49(2) or 50.
Adjustment, waiver, reduction or refund of fees
52
1
If after a capital or periodic fee is paid it becomes apparent that —
a
a lesser fee should have been paid, the excess shall be refunded to the applicant or, as the case may be, the holder of the authorization, registration, authorisation or licence concerned; or
b
a higher fee should have been paid, the balance due shall be payable within a period of 14 days commencing on the date of the written notice issued by the licensing authority to the applicant or, as the case may be, the holder of the authorization, registration, authorisation or licence concerned requiring payment of that balance.
2
The licensing authority shall, to the extent provided in Schedule 7 in relation to capital fees or in Schedule 8 in relation to periodic fees —
a
adjust, waive payment of or reduce any fee or part of a fee otherwise payable under these Regulations; or
b
refund the whole or part of any fee already paid.
Suspension of licences and authorisations
53
1
Where any sum due by way of, or on account of, any fee or any part of a fee payable under these Regulations remains unpaid by the holder of a —
a
product licence or a product licence of right;
b
manufacturer’s licence;
c
manufacturer’s authorisation; or
d
wholesale dealer’s licence,
the licensing authority may serve a written notice on the holder requiring payment of the sum unpaid.
2
If after a period of one month commencing on the date of service of the notice referred to in paragraph (1), or such longer period as the licensing authority may allow, the said sum remains unpaid, the licensing authority may forthwith suspend the licence or, as the case may be, the authorisation until such sum has been paid.
Civil proceedings to recover unpaid fees
54
All unpaid sums due by way of, or on account of, any fees payable under these Regulations shall be recoverable as debts due to the Crown.
PART 15 Consequential Amendments
Amendment of the Medicines for Human Use (Clinical Trials) Regulations 2004
55
1
The Medicines for Human Use (Clinical Trials) Regulations 2004 are amended as follows.
2
In regulation —
a
17(2)(b)(ii) (request for authorisation to conduct a clinical trial),
b
24(10) (amendments by the sponsor),
c
38(3)(b) (application for manufacturing authorisation),
d
44(8) (variation of manufacturing authorisation),
for “Medicines (Products for Human Use) (Fees) Regulations 2010” substitute “Medicines (Products for Human Use) (Fees) Regulations 2012”.
Amendment of the Homoeopathic Regulations
56
The Homoeopathic Regulations are amended by omitting the following definitions in regulation 1(2) (citation, commencement and interpretation) —
a
“administrative variation”,
b
“ the Board ”,
c
“concerned member State”,
d
“set of applications”, and
e
“standard variation”.
PART 16 Revocations and Savings
The Medicines (Products for Human Use) (Fees) Regulations 2010
57
1
Subject to paragraphs (2) to (4), the Medicines (Products for Human Use) (Fees) Regulations 2010 (“the 2010 Regulations ”) are revoked.
2
The savings introduced by regulation 52(2), (3) and (4) of the 2010 Regulations shall continue to apply as if those paragraphs of that regulation had not been revoked.
3
The 2010 Regulations shall continue to apply as if they had not been revoked —
a
in relation to capital fees payable under the 2010 Regulations in respect of any application or inspection made before the date on which these Regulations come into force; and
b
to any periodic fee payable under the 2010 Regulations in relation to a fee period ending before the date on which these Regulations come into force.
4
The revocation of the 2010 Regulations shall not affect any proceedings under those Regulations for the recovery of any fees due as debts to the Crown and for the purposes of those proceedings, the 2010 Regulations shall continue to apply as if they had not been revoked.
The Homoeopathic Regulations
58
1
The Homoeopathic Regulations are revoked to the following extent.
2
In regulation 1 (citation, commencement and interpretation) paragraph (4) is revoked.
3
Regulations 12 to 18, Schedule 2, 2A and 3 are revoked.
4
The Homoeopathic Regulations shall continue to apply as if they had not been revoked to the extent specified under paragraphs (2) and (3) —
a
in relation to any application or inspection made before the date on which these Regulations come into force; and
b
to any fee period ending before the date on which these Regulations come into force.
5
Any revocation under paragraphs (2) or (3) shall not affect any proceedings under the Homoeopathic Regulations for the recovery of any fees due as debts to the Crown and for the purposes of those proceedings, the Homoeopathic Regulations shall continue to apply as if they had not been revoked.
Signed by authority of the Secretary of State for Health.
Earl Howe
Parliamentary Under-Secretary of State,
Department of Health
20th February 2012
Edwin Poots
Minister for Health, Social Services and Public Safety
23rd February 2012
Michael Fabricant
Brooks Newmark
Two of the Lords Commissioners of Her Majesty’s Treasury
22nd February 2012
SCHEDULE 1
INTERPRETATION
Regulation 2
Interpretation
1
In these Regulations, unless the context requires otherwise —
“the 2001 Directive” means Directive 2001/83/EC of the European Parliament and of the Council on the Community code relating to medicinal products for human use ;
“the Act” means the Medicines Act 1968 and, except as provided below, expressions used in these Regulations have the same meaning as in the Act;
“active ingredient” means an ingredient of a medicinal product in respect of which efficacy is claimed (whether therapeutic, diagnostic or otherwise);
“API manufacturer” means a person, other than the holder of a manufacturer’s licence, engaged in the manufacture or assembly of active substances used as starting materials in the manufacture of medicinal products;
“application”, in relation to a clinical trial authorisation, means a request for authorisation to conduct a clinical trial made in accordance with regulation 17 (request for authorisation to conduct a clinical trial) of the Clinical Trials Regulations, and “applicant”, in relation to such authorisation, means the person making the request;
“authorised medicinal product” means a medicinal product in respect of which a marketing authorization has been granted;
“blood product” means any medicinal product derived from human blood or human plasma and includes albumin, coagulating factor and immunoglobulin of human origin;
“the Board” means the Advisory Board on the Registration of Homoeopathic Products;
“capital fee” means any fee, other than a periodic fee, payable under the provisions of these Regulations;
“certificate of registration” means a certificate for the purposes of the Homoeopathic Regulations;
“change of ownership application” means an application —
for —
a marketing authorization for a medicinal product in respect of which another person holds a marketing authorization;
a manufacturing authorisation for activities in respect of which another person holds a manufacturing authorisation;
a traditional herbal registration for a medicinal product in respect of which another person holds a traditional herbal registration;
a manufacturer’s licence for activities in respect of which another person holds a manufacturer’s licence; or
a wholesale dealer’s licence for activities in respect of which another person holds a wholesale dealer’s licence;
which refers to particulars which are in all material respects identical to the particulars of the marketing authorization, manufacturing authorisation, traditional herbal registration, manufacturer’s licence, or wholesale dealer’s licence which is held by that other person; and
which includes a statement to the effect that the other person intends to cease the activities to which the marketing authorization, manufacturing authorisation, traditional herbal registration or licence relates and has consented in writing to the making of the application,
and in this definition particulars do not include particulars relating to the name and address of the applicant, the labelling of any medicinal product or the content of any leaflet relating to such a product;
“clinical development” means the conduct of studies of a medicinal product in human subjects in order to —
discover or verify the effects of such a product;
identify any adverse reaction to such a product; or
study absorption, distribution, metabolism and excretion of such a product,
with the object of ascertaining the safety or efficacy of that product, in accordance with section 5 of Part 1 of Annex I to the 2001 Directive;
“clinical trial” means any investigation in human subjects, other than a non-interventional trial, intended —
to discover or verify the clinical, pharmacological or other pharmacodynamic effects of one or more medicinal products;
to identify any adverse reactions to one or more such products; or
to study absorption, distribution, metabolism and excretion of one or more such products,
with the object of ascertaining the safety or efficacy of those products;
“clinical trial authorisation” means authorisation of the conduct of a clinical trial —
by the licensing authority in accordance with regulation 18 (authorisation procedure for clinical trials involving general medicinal products), 19 (authorisation procedure for clinical trials involving general medicinal products for gene therapy etc.) or 20 (authorisation procedure for clinical trials involving general medicinal products with special characteristics) of the Clinical Trials Regulations; or
which is treated as having been given by the licensing authority by virtue of Schedule 12 to those Regulations;
“Clinical Trials Regulations” means the Medicines for Human Use (Clinical Trials) Regulations 2004 ;
“complex application” has the meaning given in paragraph 5 of Schedule 2;
“concerned Member State” means for the purpose of —
regulation 12 and Part 2 of Schedule 2 (capital fees for Applications for Authorizations, Licences, Registrations and Certificates), an EEA State, the competent authorities of which receive an application to obtain recognition, according to the procedure laid down in Title III, Chapter 4 of the 2001 Directive, of a United Kingdom marketing authorization;
regulation 18 and Part 4 of Schedule 2 (capital fees for applications for variations of authorizations, Licences and Registrations), an EEA State, the competent authority of which has received an application for a variation to the terms of a marketing authorization under the procedure laid down in EC Regulation No. 1234/2008 for a medicinal product in respect of which an authorization was granted by that competent authority, other than the reference Member State;
“contract laboratory” means a laboratory carrying out the examinations and tests referred to in —
paragraph 5A(2) of Schedule 2 (standard provisions for manufacturer’s licences and manufacturer’s licences of right) to the Medicines (Standard Provisions for Licences and Certificates) Regulations 1971 ; and
Article 11(1) of Directive 2003/94/EC ,
on behalf of the holder of a manufacturing authorisation, manufacturer’s licence or wholesale dealer’s licence, pursuant to Article 11(2) of that Directive and Article 20(b) of the 2001 Directive;
“ Council Regulation (EEC) No. 2309/93 ” means Council Regulation (EEC) No. 2309/93 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products ;
“Directive 2003/94/EC” means Commission Directive 2003/94/EC laying down the principles and guidelines of good manufacturing practice in respect of medicinal products for human use and investigational medicinal products for human use ;
“Directive 75/319/EEC” means Council Directive 75/319/EEC on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products ;
“EC Regulation No. 1234/2008” means Commission Regulation (EC) No. 1234/2008 concerning the examination of variations to the terms of marketing authorizations for medicinal products for human use and veterinary medicinal products ;
“EEA State” means a Member State, Norway, Iceland or Liechtenstein;
“European Union marketing authorization” means a marketing authorization granted by the European Commission under Council Regulation (EEC) No. 2309/93 or Regulation (EC) No. 726/2004 ;
“exempt imported product” means a medicinal product, as defined in Article 1(2) of the 2001 Directive, to which paragraph 1 of Schedule 1 (exemptions and exceptions from the provisions of regulation 3) to the Marketing Authorisation Regulations applies, which was not manufactured in the United Kingdom and in relation to which no marketing authorization has been granted;
“fee period” means the period beginning with the first day of April in any year and ending with the last day of March in the following year;
“good clinical practice” means the conditions and principles of good clinical practice specified in Schedule 1 to the Clinical Trials Regulations;
“good distribution practice” means the Guidelines on Good Distribution Practice of Medicinal Products for Human Use (94/C63/03) published by the European Commission pursuant to Article 84 of the 2001 Directive;
“good manufacturing practice” means the principles and guidelines of good manufacturing practice set out in Directive 2003/94/EC;
“good pharmacovigilance practice” means the Guidelines on Pharmacovigilance for Medicinal Products for Human Use published by the European Commission pursuant to Article 106 of the 2001 Directive;
“herbal substances” has the meaning given by Article 1(31) of the 2001 Directive;
“Herbal Regulations” means the Medicines (Traditional Herbal Medicinal Products for Human Use) Regulations 2005 ;
“holder”, in relation to a clinical trial authorisation, means —
in the case of an authorisation treated as having been given by the licensing authority by virtue of Schedule 12 (transitional provisions) to the Clinical Trials Regulations, the person acting as sponsor of the clinical trial for the purposes of those Regulations; or
in any other case, the person who made the request for that authorisation;
“homoeopathic medicinal product” means any medicinal product (which may contain a number of principles) prepared from substances called homoeopathic stocks in accordance with a homoeopathic manufacturing procedure described by the European Pharmacopoeia or by any pharmacopoeia used officially in a Member State;
“homoeopathic marketing authorization” means a marketing authorization granted by the licensing authority in respect of a national homoeopathic medicinal product;
“Homoeopathic Regulations” means the Medicines (Homoeopathic Medicinal Products for Human Use) Regulations 1994 ;
“immunological product” means any medicinal product which is a vaccine, toxin, serum or allergen product;
“licensing authority” shall be interpreted in accordance with section 6 of the Act;
“major application” has the meaning given in paragraph 10 of Schedule 2;
“manufacturer’s licence” means a manufacturer’s licence falling within the meaning of section 8(2) of the Act which relates wholly or partly to medicinal products for human use;
“manufacturing authorisation” means a manufacturing authorisation granted for the purposes of regulation 36 (requirement for authorisation to manufacture or import investigational medicinal products) of the Clinical Trials Regulations;
“marketing authorization” means, except in regulation 3 —
a United Kingdom marketing authorization granted by the licensing authority under the Marketing Authorisation Regulations;
a European Union marketing authorization; or
a product licence, including one which is a licence of right or one which has effect as a marketing authorization by virtue of paragraph 1 of Schedule 6 (transitional provisions) to the Marketing Authorisation Regulations,
which relates to a medicinal product for human use;
“Marketing Authorisation Regulations” means the Medicines for Human Use (Marketing Authorisations Etc.) Regulations 1994 ;
“medicinal product” includes any medicinal product for human use to which the 2001 Directive applies and any substance or article specified in any order for the time being in force made under section 104 (application of the Act to certain articles and substances) or 105(1)(a) (application of the Act to certain other substances which are not medicinal products) of the Act which directs that Part II of the Act or the Clinical Trials Regulations shall have effect in relation to such substance or article;
“national homoeopathic product” means a homoeopathic medicinal product which —
does not satisfy the conditions set out in Article 14(1) of the 2001 Directive; and
is indicated for the relief or treatment of minor symptoms or minor conditions in humans;
“operator”, in relation to a contract laboratory, means the person having control of the contract laboratory;
“orphan medicinal product” has the meaning given in Article 2(b) of Regulation (EC) No. 141/2000 of the European Parliament and of the Council of 16th December 1999 on orphan medicinal products ;
“parallel import licence” means a United Kingdom marketing authorisation granted by the licensing authority under the Marketing Authorisation Regulations in respect of a relevant medicinal product which is imported into the United Kingdom from another EEA State in accordance with the rules of European Union law relating to parallel imports;
“penalty fee” means a fee payable under regulation 49;
“periodic fee” means the fee payable under regulation 33 or 34 by the holder of —
a marketing authorization (other than a European Union marketing authorization), a traditional herbal registration, a manufacturing authorisation, a manufacturer’s licence, a wholesale dealer’s licence; or
a clinical trial authorisation in respect of the holding of the authorization, registration, authorisation or licence;
“Periodic Safety Update Report” means a report prepared to meet the requirements of the 2001 Directive;
“pharmacovigilance advice” means advice, other than scientific advice, which falls within one or more of the descriptions specified in paragraphs (a) and (b) —
the advice is in connection with an application for an EU marketing authorization, or is given with a view to a person making such an application, and relates to —
the obligations that would relate to the holder of such an authorization by virtue of Title IX of the 2001 Directive or Chapter 3 of Title II of Regulation (EC) No. 726/2004 ;
the pharmacovigilance and risk-management systems that the applicant would be required to introduce in accordance with Article 8(3)(ia) of the 2001 Directive; or
a post-authorization safety study protocol;
the advice is given to the holder of a United Kingdom marketing authorization or a European Union marketing authorization and relates to —
compliance with the obligations that relate to him by virtue of Title IX of the 2001 Directive or Chapter 3 of Title II of Regulation (EC) No. 726/2004 ;
the pharmacovigilance and risk-management systems that he has introduced in accordance with Article 8(3)(ia) of the 2001 Directive; or
a post-authorization safety study protocol;
“post-authorization safety study protocol” means a document that describes the objectives, design, methodology, statistical considerations and organisation of a post-authorization safety study;
“product licence” means a product licence falling within the meaning of section 7 of the Act;
“product licence of right” means a product licence within the meaning of section 7 (general provisions as to dealing with medicinal products) of the Act which is a licence of right within the meaning of section 25(4) (entitlement to licence of right) of the Act;
“product range” means one or more medicinal products containing the same active substance in relation to which the same person holds more than one EU marketing authorization;
“quality development” means the chemical, pharmaceutical and biological testing necessary to demonstrate the quality of a relevant medicinal product, in accordance with section 3 of Part 1 of Annex I to the 2001 Directive;
“Regulation (EC) No. 726/2004 ” means Regulation (EC) No. 726/2004 of the European Parliament and of the Council laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency ;
“regulatory advice” means advice, other than scientific advice, in relation to the requirements of the 2001 Directive or Regulation (EC) No. 726/2004 and which falls within one or more of the descriptions specified in sub-paragraphs (a) to (c) —
the advice is in connection with a change to the dates for renewal of one or more EU marketing authorizations relating to a product range pursuant to Article 24 of the 2001 Directive;
the advice is in connection with —
a referral pursuant to Article 30, 31 or 36 of the 2001 Directive; or
the procedure referred to in Article 35(2) of the 2001 Directive,
in relation to a product range; or
the advice is given to a person with a view to that person making —
an application for the variation or renewal of one or more EU marketing authorizations; or
an application to amend the time periods for submitting Periodic Safety Update Reports under Article 104(6) of the 2001 Directive,
in relation to a product range;
“relevant fee period” means any fee period during any part of which a marketing authorization, traditional herbal registration, clinical trial authorisation, manufacturing authorisation or licence in respect of which a periodic fee is payable is in force;
“relevant medicinal product” means a medicinal product for human use to which the provisions of the 2001 Directive apply other than —
a traditional herbal medicinal product; or
a homoeopathic medicinal product that fulfils the conditions laid down in Article 14(1) of the 2001 Directive;
“repeat formulation” means —
the formulation of a product which is identical to the formulation of another product —
in respect of which the applicant holds a certificate of registration or a homoeopathic marketing authorization; or
to which the applicant has, by the holder of the certificate of registration or the homoeopathic marketing authorization which relates to it, been authorised in writing to make reference for the purposes of this application; or
where more than one application is made by the same applicant on the same occasion in respect of products of identical formulations, for the purposes of the second and any subsequent of those applications which the licensing authority considers, the formulation of the product to which the first of those applications which is considered by the licensing authority relates;
“repeat stock” means —
a homoeopathic stock which is identical to another homoeopathic stock which is used in the preparation of a product —
in respect of which the applicant holds a certificate of registration or a homoeopathic marketing authorization; or
in respect of which another person holds a certificate of registration or a homoeopathic marketing authorization to which, for the purposes of his application, the applicant has been authorised in writing to make reference by the person (or if more than one, each of the persons) who supplied information to the licensing authority in connection with the application for the certificate of registration or a homoeopathic marketing authorisation which relates to that product; or
where more than one application is made by the applicant on the same occasion in respect of products prepared from identical homoeopathic stocks, for the purposes of the second and any subsequent of those applications which the licensing authority considers, the homoeopathic stock used in the preparation of the product to which the first of those applications which is considered by the licensing authority relates;
“safety development” means the toxicological and pharmacological testing necessary to demonstrate the safety of a relevant medicinal product, in accordance with section 4 of Part 1 of Annex 1 to the 2001 Directive;
“scientific advice” means advice in connection with the quality, safety or clinical development for a relevant medicinal product;
“special import notice” means a written notice given to the licensing authority in accordance with paragraph 7(2) of Schedule 2 (standard provisions which may be incorporated in a manufacturer’s licence relating to the import of relevant medicinal products from a third country) to, or paragraph 3(2) of Schedule 4 (standard provisions which may be incorporated in a wholesale dealer’s licence) to, the Medicines for Human Use (Manufacturing, Wholesale Dealing and Miscellaneous Amendments) Regulations 2005 ;
“total value” means the gross amount of the total sales made during the period of 12 months preceding the date of the application;
“traditional herbal medicinal product” has the meaning given by Article 1(29) of the 2001 Directive;
“traditional herbal registration” means a registration granted by the licensing authority under the Herbal Regulations;
“turnover” in relation to wholesale dealing means the gross amount of the total sales made during the period of 12 months preceding the date of the application;
“United Kingdom marketing authorization” means a marketing authorization granted by the licensing authority under the Marketing Authorisation Regulations;
“variation” —
in relation to —
a United Kingdom marketing authorization; or
a product licence which has effect as such a marketing authorization by virtue of paragraph 1 of Schedule 6 (transitional provisions) to the Marketing Authorisation Regulations,
means “variation to the terms of a marketing authorization” as defined in Article 2(1) of EC Regulation No. 1234/2008;
in relation to a traditional herbal registration, means a variation of the provisions of a traditional herbal registration;
“wholesale dealer’s licence” means a wholesale dealer’s licence falling within the meaning of section 8(3) of the Act which relates wholly or partly to medicinal products for human use.
2
For the purposes of these Regulations, a clinical trial authorisation is in force unless the licensing authority has —
a
received notification of the conclusion of the clinical trial to which the authorisation relates, in accordance with regulation 27 (conclusion of clinical trial) of the Clinical Trials Regulations; or
b
suspended or terminated the trial at all sites at which that clinical trial was conducted, in accordance with regulation 31 (suspension or termination of clinical trial) of those Regulations .
3
In these Regulations any reference to an application for the variation of a marketing authorization includes a reference to a notification of such a variation and any reference to an applicant for a variation to a marketing authorization includes a reference to a person who submits such a notification.
SCHEDULE 2
CAPITAL FEES FOR APPLICATIONS FOR, AND VARIATIONS TO, MARKETING AUTHORIZATIONS, LICENCES, AUTHORISATIONS, REGISTRATIONS AND CERTIFICATES
Regulations 12(1)(a), 16,18(1), 19(1), 22(1), 26(1)
PART 1 General: interpretation and categories of applications and variations
Interpretation
1
In this Schedule —
“active ingredient from a new source” means an active ingredient in respect of which the application names as manufacturer a manufacturer not previously named as the manufacturer of that active ingredient included in a medicinal product in respect of which a marketing authorization (other than a product licence of right) or a traditional herbal registration has previously been granted;
“EU marketing authorization” means —
a marketing authorization; or
an authorization issued by a competent authority of an EEA State other than the United Kingdom for the purposes of Article 6 of the 2001 Directive;
“the MHRA portal” means the internet-based hosted platform which enables persons to carry out business with the Medicines and Healthcare products Regulatory Agency of the Department of Health electronically, known as the “the MHRA Portal”;
“new active ingredient” means an active ingredient that has not previously been included as an active ingredient in a medicinal product in respect of which a marketing authorization (other than a product licence of right) has previously been granted;
“new excipient” means —
except in Part 2, paragraph 33 and Part 4, any ingredient of a medicinal product, other than an active ingredient, that has not previously been included in a medicinal product —
which is intended to be administered by the same route of administration as the product in question; and
in respect of which a marketing authorization (other than a product licence of right), a certificate of registration or a traditional herbal registration has previously been granted,
except that in the case of a medicinal product intended to be administered orally, the expression does not include any ingredient specified in any enactment (including an enactment comprised in subordinate legislation or in any Directive, Regulation or Decision of the European Union) as an approved ingredient or additive in food or in a food product;
in Part 2, paragraph 33 and Part 4, any ingredient of a medicinal product, other than an active ingredient, that has not previously been included in a medicinal product which is intended to be administered by the same route of administration as the product in question and in respect of which a marketing authorization (other than a product licence of right), a certificate of registration or a traditional herbal registration has previously been granted, except that —
in the case of a medicinal product intended to be administered orally, the expression does not include any ingredient specified in any enactment (including an enactment comprised in subordinate legislation or in any Directive, Regulation or Decision of the European Union) as an approved ingredient or additive in food or in a food product; and
in the case of a medicinal product intended for external use only, the expression does not include any ingredient specified in any enactment (including an enactment comprised in subordinate legislation or in any Directive, Regulation or Decision of the European Union) as an approved ingredient or additive in a cosmetic product;
“Phase I trial” means a clinical trial to study the pharmacology of a medicinal product when administered to humans, where the sponsor and investigator have no knowledge of any evidence that the product has effects likely to be beneficial to the subjects of the trial;
“Phase II or Phase III trial” means a clinical trial, other than a Phase I trial, where the medicinal product being tested —
does not have an EU marketing authorization; or
has an EU marketing authorization, but —
there has been a change —
to the process of manufacture of the product or its active ingredient; or
of manufacturer of that product, or
the product is to be used in the trial other than in accordance with the terms of the summary of product characteristics under that authorization;
“Phase IV trial” means a clinical trial other than a Phase I trial or a Phase II or Phase III trial;
“ TSE risk ingredient from a new source” and “TSE risk excipient from a new source” mean an active ingredient or excipient, respectively, which has been manufactured from raw materials of ruminant origin or which has had raw materials of ruminant origin used in its manufacture and in respect of which —
the application names as manufacturer, a manufacturer not previously named as the manufacturer of that ingredient or excipient included in a medicinal product in respect of which a marketing authorization (other than a product licence of right), a certificate of registration or a traditional herbal registration has previously been granted; and
no European Pharmacopoeia certificate of suitability covering the excipient has been submitted with the application;
“vitamin or mineral from a new source” means a vitamin or mineral in respect of which the application names as manufacturer a manufacturer not previously named as the manufacturer of that vitamin or mineral included in a medicinal product in respect of which a marketing authorization (other than a product licence of right) or a traditional herbal registration has previously been granted.
General: categories of Applications and Variations
2
1
In this Schedule, references to a particular type of application, variation or variation application shall be interpreted in accordance with this paragraph and paragraphs 3 to 23.
2
A reference to a “European reference product application” means an application for a marketing authorization to which the third sub-paragraph of Article 10(1) of the 2001 Directive applies.
Administrative variation application
3
An administrative variation application is an application by a traditional herbal registration holder to vary a traditional herbal registration where the variation applied for falls within one of the following sub-paragraphs —
a
a change of either or both of the name and the address of the holder of the registration;
b
a change of either or both of the name and the address of a manufacturer, assembler, storer or distributor named in the registration where the change has been occasioned by the taking over of an existing business, whether by purchase, merger or otherwise, and any change of address does not involve a change of the site of manufacture, assembly or storage or of the site from which distribution takes place; or
c
the removal from the registration of details of one or more of the sites of manufacture, assembly or storage or of the sites from which distribution takes place.
Extension application
4
An extension application is an application —
a
for an extension of a marketing authorization within the meaning of Article 2(4) of EC Regulation No. 1234/2008; and
b
which includes the result of pre-clinical tests or clinical trials as specified in Article 8(3)(i) of the 2001 Directive.
Complex application
5
A complex application is an application, other than a major application, for a marketing authorization where the application falls within one or more of the following sub-paragraphs —
a
the application relates to a medicinal product which is intended to be used in accordance with an indication for use in respect of a new category of patients or as treatment for a new category of disease;
b
the application relates to a medicinal product containing a new combination of active ingredients that have not previously been included in that combination in a medicinal product in respect of which a marketing authorization (other than a product licence of right) has previously been granted;
c
the application relates to a medicinal product containing a new excipient;
d
the application relates to a medicinal product that is intended to be administered by a route of administration different from that used in relation to any medicinal product which contains the same active ingredient as the product in question and in respect of which a marketing authorization (other than a product licence of right) has previously been granted;
e
the application relates to a medicinal product containing an active ingredient the manufacture of which involves a route of synthesis (or, in the case of a medicinal product not synthetically produced, a method of manufacture) different from that used in the manufacture of the active ingredient of any medicinal product which contains the same active ingredient as the product in question and in respect of which a marketing authorization (other than a product licence of right) has previously been granted;
f
the application relates to a medicinal product which is a controlled release preparation and is not a simple application;
g
the application relates to a sterile medicinal product the manufacture of which involves a method of sterilisation different from that used in the manufacture of any medicinal product which contains the same active ingredient as the product in question and in respect of which a marketing authorization (other than a product licence of right) has previously been granted;
h
the application relates to a sterile medicinal product the container of which is directly in contact with the medicinal product and is made from different material from the container of any medicinal product which contains the same active ingredient as the product in question and in respect of which a marketing authorization (other than a product licence of right) has previously been granted;
i
unless a European Pharmacopoeia certificate of suitability covering the active ingredient has been submitted with the application, the application names as manufacturer of the active ingredient of the medicinal product in question a different manufacturer from the manufacturer of that active ingredient included in a medicinal product in respect of which a marketing authorization (other than a product licence of right) has previously been granted;
j
the application relates to a medicinal product which is an influenza vaccine and in respect of which the manufacturer or the manufacturing process is different from that specified in any other marketing authorization which the applicant holds in respect of that product;
k
the application is for the grant of a marketing authorization for a medicinal product which is an influenza vaccine, except where it relates only to an influenza vaccine containing a different strain or strains from that specified in any other marketing authorization which the applicant holds;
l
the application is for the grant of a marketing authorization for a medicinal product which is to be delivered by way of a metered dose inhaler;
m
the application is for the grant of a marketing authorization for a medicinal product which is in a powdered form and is to be delivered by way of inhalation;
n
the application relates to a medicinal product —
i
which is administered to the site of action or absorption by a method which has not previously been authorised in relation to any authorised medicinal product which contains the same active ingredient as the product in question; and
ii
in respect of that other product, a marketing authorization (other than a product licence of right) has previously been granted;
o
the application is an application for a marketing authorization to which Article 10(3) of the 2001 Directive applies;
p
the application is an application where the sole or primary evidence for the safety and efficacy of the medicinal product consists of published scientific literature;
q
the application is an extension application;
r
the application —
i
is not an application in accordance with Article 10, 10a or 10c of the 2001 Directive; and
ii
includes the results of pre-clinical tests or clinical trials as specified in Article 8(3)(i) of the 2001 Directive; or
s
the application is an application for a marketing authorization to which the first sub-paragraph of paragraph 3 of Part II of Annex I to the 2001 Directive applies.
Complex registration application
6
A complex registration application is an application for a traditional herbal registration relating to a medicinal product containing an active ingredient that has not previously been included as an active ingredient in a medicinal product in respect of which a marketing authorization (other than a product licence of right) or a traditional herbal registration has previously been granted.
Complex variation application
7
A complex variation application is an application by a traditional herbal registration holder to vary a traditional herbal registration which relates to a change in the formulation of a medicinal product comprising one or more of the following changes —
a
a change in that product’s active ingredients which involves the addition of one or more active ingredients which are active ingredients from a new source;
b
a change in that product’s excipients which involves the addition of one or more TSE risk excipients from a new source; or
c
a change which involves the addition of one or more vitamins or minerals which are vitamins or minerals from a new source where no European Pharmacopoeia certificate of suitability covering those vitamins or minerals has been submitted with the application.
Decentralised procedure application
8
A decentralised procedure application is a major application, a complex application, a standard application or a simple application for a marketing authorization for a medicinal product in respect of which at the time of the application —
a
a marketing authorization has not been granted in any EEA State; and
b
an application for a marketing authorization has been made in more than one EEA State pursuant to the procedure in Title III, Chapter 4 of the 2001 Directive.
Extended Type II Complex Variation Application
9
An Extended Type II Complex Variation Application is an application by a marketing authorization holder to vary a marketing authorization (not being a parallel import licence) so that the medicinal product is indicated for use —
a
in a therapeutic area for which the product was not previously indicated for use; or
b
in respect of an organ, or any other part, of the human body for which the product was not previously indicated for use, if the application is supported by data which comprises or includes the results of clinical trials or physico-chemical, microbiological or pharmacological and toxicological tests.
Major application
10
A major application is an application for a marketing authorization made to the licensing authority on the grounds that a medicinal product contains a new active ingredient.
Mutual recognition procedure incoming application
11
A mutual recognition procedure incoming application is a major application, a complex application or a standard application for a marketing authorization for a medicinal product in respect of which —
a
a marketing authorization has already been granted in another EEA State; and
b
recognition of that marketing authorization is sought from the licensing authority by way of the grant of a marketing authorization in the United Kingdom, pursuant to the procedure in Title III, Chapter 4 of the 2001 Directive.
New excipient variation application
12
A new excipient variation application is an application, other than a complex variation application, by a traditional herbal registration holder to vary a traditional herbal registration which relates to a change in the formulation of the medicinal product to add a new excipient.
New indication variation application
13
A new indication variation application is an application to vary a marketing authorization for a national homoeopathic product, so that product is indicated for a therapeutic use not previously covered by that authorization.
Parallel Import Licence application
14
1
An application for a Simple Parallel Import licence means an application for a parallel import licence in respect of a proposed importation of a medicinal product (“P”) which is similar to a medicinal product (“R”) in respect of which a marketing authorisation has already been granted in the United Kingdom.
2
For the purposes of sub-paragraph (1) “similar” means —
a
the manufacturer of P and the manufacturer of R are either the same company or belong to the same group of companies or, in the case of independent companies, agreements have been concluded with the same licensor; and
b
product P and R are manufactured according to the same formulation, using the same active ingredients, have the same pharmaceutical form and have no differences that will result in a difference in the therapeutic effect.
3
An application for a Complex Parallel Import licence means an application for a parallel import licence which is not a Simple Parallel Import licence and the application is in respect of a medicinal product —
a
containing a new excipient;
b
containing an active ingredient the manufacture of which involves a route of synthesis (or, in the case of a medicinal product not synthetically produced, a method of manufacture) different from that used in the manufacture of the active ingredient of any medicinal product which contains the same active ingredient as the product in question and in respect of which a marketing authorization (other than a product licence of right) has previously been granted;
c
which is a controlled release preparation;
d
which is a sterile medicinal product the manufacture of which involves a method of sterilisation different from that used in the manufacture of any medicinal product which contains the same active ingredient as the product in question and in respect of which a marketing authorization (other than a product licence of right) has previously been granted;
e
which is a sterile medicinal product the container of which is directly in contact with the medicinal product and is made from different material from the container of any medicinal product which contains the same active ingredient as the product in question and in respect of which a marketing authorization (other than a product licence of right) has previously been granted;
f
containing an active ingredient which, unless that active ingredient is covered by a European Pharmacopoeia certificate of suitability, is not manufactured by a manufacturer of the active ingredient which is included in the medicinal product in respect of which a marketing authorization (other than a product licence of right) has previously been granted;
g
which is an influenza vaccine;
h
which is to be delivered by way of a metered dose inhaler;
i
which is in powder form and is to be delivered by inhalation;
j
which falls within the description of the medicinal product set out in Article 10(3) of the 2001 Directive;
k
where the sole or primary evidence for the safety and efficacy of that product consists of published scientific literature;
l
in respect of which a marketing authorization has not been made pursuant to Article 10, 10a or 10c of the 2001 Directive by the competent authority in the Member State of exportation, and the application includes the results of pre-clinical tests or clinical trials within the meaning of Article 8(3)(i) of the 2001 Directive; or
m
in respect of which a marketing authorization to which the first sub-paragraph of paragraph 3 of Part II of Annex I to the 2001 Directive applied in the Member State of exportation.
4
An application for a Standard Parallel Import licence means an application for a parallel import licence which is not a Complex Parallel Import licence or a Simple Parallel Import licence.
5
An application shall not fall within the meaning of sub-paragraph (1), (3) or (4) where the applicant and the holder of the marketing authorization in the Member State of exportation in respect of which the medicinal product in question relates are a parent undertaking and subsidiary undertaking within the meaning of section 1162 (taken together with section 1161 of, and Schedule 7 to) the Companies Act 2006 .
Reclassification variation application
15
A reclassification variation application is an application for variation of a marketing authorization which has the effect that a medicinal product to which that authorization relates —
a
is to be available only from a pharmacy or on general sale, where previously it was available only on prescription; or
b
is to be available on general sale, where previously it was available only from a pharmacy.
Reduced registration application
16
1
A reduced registration application category I is an application other than a complex registration application for a traditional herbal registration relating to a medicinal product which is presented in the form of a herbal tea.
2
A reference to a reduced registration application category II means an application, other than a complex registration application, or a traditional herbal registration where the application falls within one of the descriptions specified in sub-paragraphs (a) to (d) as follows —
a
the application relates to a medicinal product which is presented in the form of a herbal tincture;
b
the application relates to a medicinal product which is presented in the form of an essential oil;
c
the application relates to a medicinal product which is presented in the form of a fatty oil; or
d
the application relates to a medicinal product which contains only herbal substances in a capsule.
Simple application
17
A simple application is an application —
a
for a marketing authorization to which Article 10c of the 2001 Directive applies; or
b
made no later than three months after the expiry of a marketing authorization, which is for a marketing authorization containing identical provisions to those contained in the expired authorization and which is made by the person who held the expired authorization.
Standard application
18
A standard application is any application for the grant of a marketing authorization which is not a major application, a complex application, a simple application, a change of ownership application or an application for a parallel import licence.
Standard registration application
19
A standard registration application means any application for the grant of a traditional herbal registration which is not a complex registration application, a reduced registration application category I, a reduced registration application category II or a change of ownership application.
Standard variation application
20
A standard variation application is an application by a traditional herbal registration holder to vary a traditional herbal registration which is not a complex variation application, a new excipient variation application or an administrative variation application.
Standard variation application for a homoeopathic medicinal product
21
A standard variation application for a homoeopathic medicinal product is an application for a variation of a marketing authorization for a national homoeopathic product which requires —
a
the replacement of an excipient used in the manufacture of the product;
b
the replacement of a reagent indirectly associated with the manufacturing process of the product or which disappears from that process with a comparable reagent;
c
a change to the qualitative composition of the container or other form of packaging immediately in contact with the product;
d
a change to the method of manufacture of a homoeopathic stock included in the product;
e
a change to the specification of any reagent or excipient used in the manufacture of the product;
f
a change to the finished product specification of the product;
g
a change to the test procedure for any raw material used in the manufacture of the product;
h
a change to the test procedure for the product;
i
a change to the test procedure for the container or other form of packaging immediately in contact with the product;
j
a change to comply with a supplement to the European Pharmacopoeia or any national pharmacopoeia of a Member State;
k
a change to the shape of the container in which the product may be placed on the market;
l
an additional pack size in which the product may be placed on the market;
m
a change to the approved storage conditions for the product;
n
a change to the shelf life of an unopened container of the product after the container has been opened for the first time;
o
a change to the dimensions of an approved dosage form of the product (for example, tablets); or
p
a change following modification to the manufacturing authorization referred to in Article 40 of the 2001 Directive.
Type IB and Type II Applications
22
1
A Type IB Application is an application by a marketing authorization holder to vary a marketing authorization (not being a parallel import licence) which is a “minor variation of type IB” within the meaning of Article 2(5) of EC Regulation No. 1234/2008.
2
A Type II Application is an application by a marketing authorization holder to vary a marketing authorization (not being a parallel import licence) which is not —
a
a reclassification variation;
b
a Type IA Application;
c
a Type IB Application;
d
a Type II Complex Variation Application;
e
an Extended Type II Complex Variation Application; or
f
an application for an extension of a marketing authorization within the meaning of Article 2(4) of EC Regulation No. 1234/2008.
3
For the purposes of sub-paragraph (2)(b), a “Type IA Application” means an application by a marketing authorization holder to vary a marketing authorization (not being a parallel import licence) which is a “minor variation of type IA” within the meaning of Article 2(2) of EC Regulation No. 1234/2008.
Type II Complex Variation Application
23
A Type II Complex Variation Application is an application for a variation of a marketing authorization, other than an Extended Type II Complex Variation Application, which relates to a change —
a
in the formulation of a medicinal product comprising one or more of the following changes, other than a change to which paragraph 1 (changes to active substances) or paragraph 2 (changes to strength, pharmaceutical form and route of administration) of Annex I to EC Regulation No. 1234/2008 applies —
i
a change which necessitates in-vivo bioavailability studies to be performed on that product;
ii
a change in that product’s preservative system; or
iii
a change in that product’s excipients which significantly affects the pharmaceutical or the therapeutic properties of that product; or
b
which is considered a “major variation of type II” within the meaning of Article 2(3) of EC Regulation No. 1234/2008 and which is —
i
supported by data which comprises or includes the results of clinical trials or physicochemical, biological, microbiological or pharmacological and toxicological tests; or
ii
accompanied by evidence relating to post-marketing experience which is information of any type described in paragraph 5.2.6 of Part I of Annex I to the 2001 Directive (clinical documentation); or
c
in the composition, manufacture or use of a medicinal product to which —
i
sub-paragraph (c), (e), (g), (h), (j) or (n) of the definition of complex application in paragraph 5 of this Schedule would apply where an application for a marketing authorization is made in respect of a medicinal product; or
ii
sub-paragraph (i) of that definition would so apply and the change is not a minor variation of type IA or a minor variation of type IB within the meaning of EC Regulation No. 1234/2008.
PART 2 Capital Fees for Applications for Authorizations, Licences, Registrations and Certificates
Marketing authorizations
24
1
Unless paragraphs 25, 26, 28 or 29 apply, the fee payable under regulation 12(1)(a) in connection with an application for a marketing authorization of a kind described in column 1 of the following table is the fee specified in the corresponding entry in column 2 of that table.
Fees for marketing authorization applications
Column 1
Kind of application
Column 2
Fee payable
1. Major application (a) in respect of an application relating to an orphan medicinal product to which point 6 of Part 2 of Annex 1 to the 2001 Directive applies £32,135
(b) which is a mutual recognition procedure incoming application £67,468
(c) which is a European reference product application £67,468 (d) which is a decentralised procedure application where the United Kingdom is a concerned Member State £96,797
(e) which is a decentralised procedure application where the United Kingdom is a reference Member State £139,235
(f) in any other case £100,252 2. Complex application (a) which is a mutual recognition procedure incoming application £18,732
(b) which is a European reference product application £18,732
(c) which is a decentralised procedure application where the United Kingdom is a concerned Member State £26,762 (d) which is a decentralised procedure application where the United Kingdom is a reference Member State £40,780
(e) in any other case £27,716 3. Standard application (a) which is a mutual recognition procedure incoming application £6,864
(b) which is a European reference product application £6,864
(c) which is a decentralised procedure application where the United Kingdom is a concerned Member State £9,812 (d) which is a decentralised procedure application where the United Kingdom is a reference Member State £17,920
(e) in any other case £10,162 4. Simple application (a) which is a decentralised procedure application where the United Kingdom is a concerned Member State £2,771
(b) which is a decentralised procedure application where the United Kingdom is a reference Member State £9,275 (c) in any other case £2,771 5. Parallel import licence applications (a) in respect of a simple parallel import licence £1,937 (b) in respect of a standard parallel import licence £7,201 (c) in respect of a complex parallel import licence £19,650 6. Change of ownership application £478
2
Each reference in paragraphs 25, 27 and 28 to an amount payable under paragraph 24 in respect of an application refers to the amount payable under that paragraph in respect of an application of the kind in question.
Fees where application includes reclassification
25
1
Unless paragraph 27 applies, where an application, other than a major application, includes a reclassification element and —
a
the reclassification falls within the category of application described in paragraph 15(a), an amount of £12,961 is payable in addition to the amount payable under paragraph 24 in respect of that application; or
b
the reclassification falls within the category of application described in paragraph 15(b), an amount of £8,822 is payable in addition to the amount payable under paragraph 24 in respect of that application.
2
For the purposes of this paragraph, an application includes a reclassification element if —
a
in the case of an application falling within the category described in paragraph 15(a), the medicinal product in question is to be available in the United Kingdom only from a pharmacy, unless there is an analogous medicinal product available in the United Kingdom only from a pharmacy or on general sale; or
b
in the case of an application falling within the category described in paragraph 15(b), the medicinal product in question is to be available in the United Kingdom on general sale, unless there is an analogous medicinal product also so available.
3
For the purposes of this paragraph, an analogous medicinal product is a medicinal product which has a United Kingdom marketing authorization or a European Union marketing authorization and which —
a
has the same active ingredient, route of administration and use,
b
has the same strength or a higher strength,
c
has the same dosage or daily dosage, or a higher dosage or daily dosage, and
d
is for sale or supply at the same quantity or a greater quantity,
as the medicinal product in relation to which the application is made.
Fees where person holds clinical trial certificate
26
Where a major application is made by a person who holds a clinical trial certificate for a medicinal product which contains the same active ingredient as the medicinal product in respect of which the marketing authorization is applied for, the fee payable under regulation 12(1)(a) in connection with the application is reduced by the amount of the application fee paid for the clinical trial certificate.
Joint development
27
1
In this paragraph —
“joint development” means the development by two or more applicants for marketing authorizations relating to medicinal products —
each of which contains the same new active ingredient or combination of new active ingredients but with different proprietary names and which does not require separate consideration by a committee established under section 4 (establishment of committees) of the Act or by the Commission;
the development of which has been notified to the licensing authority at or before the time the application is submitted, as being a joint development undertaken by those applicants; and
in respect of which applications for marketing authorizations have been received by the licensing authority within one month of each other;
“primary applicant” means —
that party to a joint development who first makes an application for a marketing authorization relating to a new active ingredient which was the subject of that joint development; or
that party to a joint development who first makes an application for a marketing authorization relating to a different dosage form or strength of that new active ingredient;
“secondary applicant” means any party to a joint development, other than the primary applicant, who makes an application for a marketing authorization relating to the same new active ingredient as that which was the subject of the application made by the primary applicant.
2
Unless sub-paragraph (3) applies, where a joint development relates to a medicinal product and two or more applications for marketing authorizations are submitted to the licensing authority by parties to the joint development, the fee payable under regulation 12(1)(a) is the amount payable in respect of a major application under paragraph 24 plus —
a
in respect of the first or only marketing authorization applied for by that secondary applicant, the amount payable in respect of a complex application under paragraph 24;
b
in respect of each additional marketing authorization applied for by that secondary applicant which relates to a medicinal product of the same dosage form, the amount payable in respect of a standard application under paragraph 24;
c
in respect of the first additional marketing authorization applied for by that secondary applicant relating to that medicinal product which is of a different dosage form, the amount payable in respect of a complex application under paragraph 24 and in respect of any other such application by that secondary applicant, the amount payable in respect of a standard application under paragraph 24.
3
Where a joint development relates to a medicinal product and an application for an additional marketing authorization is submitted by both the primary applicant and the secondary applicant, both or all of which applications relate to identical dosage forms and strengths of the product —
a
where the amount payable by the primary applicant is that in respect of a complex application, the fee payable under regulation 12(1)(a) by the secondary application is that in respect of a standard application under paragraph 24;
b
where the amount payable by the primary applicant is that in respect of a standard application, the fee payable under regulation 12(1)(a) by the secondary applicant is that in respect of a simple application under paragraph 24.
Application for multiple authorizations
28
1
Unless sub-paragraph (2), (3) or (4) applies, where an application for a marketing authorization is for more than one such authorization each relating to a medicinal product containing the same active ingredient or combination of ingredients, the fee payable under regulation 12(1)(a) is an amount equal to the total of the amounts payable under paragraph 24 in respect of a separate application for each such authorization.
2
If the application is a major application, the amount payable is the amount payable in respect of a major application under paragraph 24 and —
a
in respect of each additional marketing authorization applied for which relates to a medicinal product of a different dosage form with a different route of administration, the amount payable in respect of a complex application under paragraph 24;
b
in respect of each additional marketing authorization applied for which relates to a medicinal product of a different dosage form but with the same route of administration, the amount payable in respect of a standard application under paragraph 24; and
c
in respect of each additional marketing authorization applied for which relates to a medicinal product of the same dosage form but of a different strength of active ingredient or different combination of active ingredients, the amount payable in respect of a standard application under paragraph 24.
3
If the application is a complex application, the amount payable is the amount payable in respect of a complex application under paragraph 24 plus —
a
in respect of each additional marketing authorization applied for which relates to a medicinal product of a different dosage form with a different route of administration, the amount payable in respect of a complex application under paragraph 24;
b
in respect of each additional marketing authorization applied for which relates to a medicinal product of a different dosage form but with the same route of administration, the amount payable in respect of a standard application under paragraph 24; and
c
in respect of each additional marketing authorization applied for which relates to a medicinal product of the same dosage form but of a different strength of active ingredient or different combination of active ingredients, the amount payable in respect of a standard application under paragraph 24.
4
If the application includes any applications for marketing authorizations that include a reclassification element, the amount payable is the amount payable in accordance with sub-paragraphs (1) to (3) and —
a
in respect of the first marketing authorization applied for that includes a reclassification element, the additional amount payable in respect of the relevant category of reclassification variation application under paragraph 25(1); and
b
in respect of each other marketing authorization applied for that includes a reclassification element, £794.
5
For the purposes of sub-paragraph (4), a “reclassification element” has the meaning given in paragraph 25(2).
Authorisation for a national homoeopathic product
29
1
In this paragraph —
“formulation” does not include the formulation of a homoeopathic stock;
“identical” means —
in relation to the formulation of the product, identical as regards the requirements in respect of composition, preparation and testing; and
in relation to a homoeopathic stock, identical as regards the source, composition and preparation of the stock and the test which it is required to undergo;
“product” includes a series of products each of which is prepared from identical homoeopathic stocks.
2
This paragraph does not apply to an application which is a mutual recognition procedure incoming application or a decentralised procedure application.
3
In connection with an application for a marketing authorization for a national homoeopathic product prepared from not more than 5 homoeopathic stocks, the fee payable under regulation 12(1)(a) is the amount set out in column 2 in the table below opposite the description in column 1 appropriate to that application.
4
In connection with any other application for a marketing authorization for a national homoeopathic product, the fee payable under regulation 12(1)(a) shall be the amount set out in column 3 in the table below opposite the description in column 1 appropriate to that application.
Fees for homoeopathic marketing authorization applications
Column 1 Column 2 Column 3 Description of application Fee for applications in respect of products prepared from not more than 5 homoeopathic stocks Fee for other applications
1. An application in respect of a product which is both prepared solely from repeat stocks and is of a repeat formulation £558 £791 2. An application in respect of a product which is either — £874 £1,096 (a) prepared solely from repeat stocks; or (b) is of a repeat formulation 3. Any other application £1,176 £1,418
5
Each reference in sub-paragraphs (6) to (8) to an amount payable under sub-paragraph (3) or (4) in respect of an application refers to the amount payable under that sub-paragraph in respect of an application of the kind in question.
6
Where an application relates to a national homoeopathic product which is manufactured using a method of sterilisation —
a
not used in the manufacture of a medicinal product in respect of which a marketing authorization (other than a product licence of right), a certificate of registration or a traditional herbal registration has previously been granted; and
b
not referred to in the European Pharmacopoeia or any national pharmacopoeia of a Member State,
an amount of £2,328 is payable in addition to the amount payable under sub-paragraph (3) or (4) in respect of that application.
7
Where an application relates to a national homoeopathic product which contains one or more new excipients, an amount of £7,766 is payable in addition to the amount payable under sub-paragraph (3) or (4) in respect of that application.
8
Where an application relates to a national homoeopathic product which contains one or more TSE risk ingredients from a new source or TSE risk excipients from a new source, an amount of £686 is payable in addition to the amount payable under sub-paragraph (3) or (4) in respect of that application.
Manufacturer’s licences and authorisations
30
1
The fee payable under regulation 12(1)(a) in connection with an application for a manufacturer’s licence or a manufacturing authorisation is —
a
£178 in a case to which sub-paragraph (2) applies;
b
£335 in the case of a change of ownership application; and
c
£3,057 in any other case.
2
This sub-paragraph applies to the case of an application for a manufacturer’s licence which is limited solely to the manufacture or assembly of medicinal products which are to be sold or supplied in circumstances to which article 2(2)(i)(e) (exemptions for certain special manufactured products) of the Medicines (Exemption from Licences) (Special and Transitional Cases) Order 1971 applies.
Wholesale dealer’s licences
31
1
Unless sub-paragraph (2) or (5) applies, the fee payable under regulation 12(1)(a) in connection with an application for a wholesale dealer’s licence is £1,754.
2
Where this sub-paragraph applies, the fee payable under regulation 12(1)(a) is £751.
3
Subject to sub-paragraph (4), sub–paragraph (2) applies where an application for a wholesale dealer’s licence —
a
relates to anything done in a registered pharmacy by or under the supervision of a pharmacist and amounts to wholesale dealing, where such dealing constitutes no more than 15% of the total turnover of the sale of authorised medicinal products carried on at that pharmacy;
b
does not relate to anything done in a registered pharmacy but where the total turnover of the sale by way of wholesale dealing of authorised medicinal products does not exceed £35,000; or
c
relates only to medicinal products falling within a description or class specified in an Order which is for the time being in force made under section 51(1) (general sale lists) of the Act .
4
Sub-paragraph (2) does not apply where the applicant has not held a wholesale dealer’s licence during the 12 month period preceding the date of the application unless at the time of making the application it is reasonable for the applicant to believe —
a
in the case of an application for a wholesale dealer’s licence which relates to anything done in a registered pharmacy by or under the supervision of a pharmacist and which amounts to wholesale dealing, that such dealing will constitute no more than 15% of the gross amount of the total sales of authorised medicinal products likely to be made in the period of 12 months following the grant of the licence, or
b
in the case of an application for a wholesale dealer’s licence which does not relate to anything done in a registered pharmacy, that the gross amount of total sales of authorised medicinal products likely to be made in the period of 12 months following the grant of the licence will not exceed £35,000,
and that applicant so informs the licensing authority when the application is made.
5
The fee payable under regulation 12(1)(a) in connection with a change of ownership application is £388.
Clinical trial authorisations
32
1
Unless sub-paragraphs (3) and (4) apply, the fee payable under regulation 12(1)(a) in connection with an application for a clinical trial authorisation for a clinical trial of a kind described in column 1 of the following table is the fee specified in the corresponding entry in column 2 of that table.
Fees for clinical trial authorisation applications
Column 1
Kind of clinical trial
Column 2
Fee payable
Phase I trial £2,255 Phase II or Phase III trial where the medicinal product being tested is unknown to the licensing authority £4,244 Phase II or Phase III trial where the product being tested is known to the licensing authority £3,448 Phase IV trial £265
2
For the purposes of that table, a medicinal product is known to the licensing authority if —
a
the product has an EU marketing authorization; or
b
the product does not have an EU marketing authorization, but where —
i
another pharmaceutical form or strength of that product has an EU marketing authorization and the medicinal product is supplied for the purposes of the clinical trial by the holder of that authorization;
ii
another medicinal product containing the same active substance has an EU marketing authorization and the medicinal product is supplied for the purposes of the clinical trial by the manufacturer of that other product; or
iii
a clinical trial in which that product is, or was, being tested or used has been authorised by the licensing authority in accordance with Directive 2001/20/EC of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the implementation of good clinical practice in the conduct of clinical trials on medicinal products for human use .
3
Where the application is in relation to a clinical trial in which the medicinal products being tested or used are the same as those being tested or used in a clinical trial —
a
in respect of which the applicant made a request for authorisation; and
b
which has been authorised by the licensing authority for the purposes of the Clinical Trials Regulations,
the fee payable in connection with that application is £265.
4
Where —
a
the medicinal product to be tested in the clinical trial to which the application relates has been used in another clinical trial that has been authorised, or is to be treated as having been authorised, by the licensing authority for the purposes of the Clinical Trials Regulations; and
b
the sponsor of that other trial authorises the licensing authority to refer to the dossier submitted in relation to that product in accordance with paragraph 11 of Schedule 3 to those Regulations,
the fee payable in connection with that application is £265.
Traditional herbal registrations
33
1
Subject to sub-paragraphs (3) to (6), the fee payable under regulation 12(1)(a) in connection with an application for a traditional herbal registration of a kind described in column 1 of the following table is the fee specified in the corresponding entry in column 2 of that table.
Fee for application for traditional herbal registration
Column 1 Column 2 Kind of application Fee payable
1. Complex registration application (a) in respect of a medicinal product containing a single active ingredient £5,237 (b) in any other case £7,857 2. Standard registration application (a) in respect of a medicinal product containing 3 or fewer active ingredients £2,619 (b) in any other case £3,928 3. Reduced registration application category II (a) in respect of a medicinal product containing 3 or fewer active ingredients £873 (b) in any other case £1,310 4. Reduced registration application category I (a) in respect of a medicinal product containing 3 or fewer active ingredients £583 (b) in any other case £873 5. Change of ownership application £478
2
Each reference in sub-paragraphs (3) to (6) to an amount payable under sub-paragraph (1) in respect of an application refers to the amount payable under that sub-paragraph in respect of an application of the kind in question.
3
Where an application relates to a medicinal product which contains one or more vitamins or minerals which are vitamins or minerals from a new source, a fee of —
a
£1,164, if European Pharmacopoeia certificates of suitability covering all the vitamins or minerals which are a vitamin or mineral from a new source have been submitted with the application; or
b
£2,328, in any other case,
is payable in addition to the amount payable under sub-paragraph (1) in respect of that application.
4
Where an application relates to a medicinal product which contains one or more new excipients, an amount of £7,767 is payable in addition to the amount payable under sub-paragraph (1) in respect of that application.
5
Where an application relates to a medicinal product which contains one or more TSE risk excipients from a new source, an amount of £690 is payable in addition to the amount payable under sub-paragraph (1) in respect of that application.
6
Where an application relates to a medicinal product which is a sterile medicinal product, an amount of £2,328 is payable in addition to the amount payable under sub-paragraph (1) in respect of that application.
PART 3 Capital Fees for Assistance in Obtaining Marketing Authorizations in Other EEA States
Outgoing mutual recognition applications
34
1
The fee payable under regulation 16 (application to the licensing authority for regulatory assistance in connection with obtaining recognition according to the procedure laid down in Title III, Chapter 4 of the 2001 Directive of a single United Kingdom marketing authorization in another EEA State or in other EEA States) is the fee specified in sub-paragraphs (2) to (5).
2
In the case where the application to the licensing authority relates to a medicinal product for which a marketing authorization was granted in the United Kingdom (the application relating to that authorization is referred to in this paragraph as the “original application”) and the original application had been a major application or would fall within the meaning of a major application, in respect of —
a
the first application for regulatory assistance (“the first application”), the fee is £44,934;
b
any other application for regulatory assistance meeting the condition in sub-paragraph (6) and made at the same time as the first application, the fee is £2,769;
c
each subsequent application for regulatory assistance (“subsequent application”), the fee is £29,516; and
d
any other application for regulatory assistance meeting the condition in sub-paragraph (6) and made at the same time as any subsequent application, the fee is £2,769.
3
In the case where the application to the licensing authority relates to a medicinal product for which a marketing authorization was granted in the United Kingdom and the original application had been a complex application or would fall within the meaning of a complex application, in respect of —
a
the first application for regulatory assistance (“the first application”), the fee is £11,623;
b
any other application for regulatory assistance meeting the condition in sub-paragraph (6) and made at the same time as the first application, the fee is £2,769;
c
each subsequent application for regulatory assistance (“subsequent application”), the fee is £7,709; and
d
any other application for regulatory assistance meeting the condition in sub-paragraph (6) and made at the same time as any subsequent application, the fee is £2,769.
4
In the case where the application to the licensing authority relates to a medicinal product for which a marketing authorization was granted in the United Kingdom and the original application had been a standard application or would fall within the meaning of a standard application, in respect of —
a
the first application for regulatory assistance (“the first application”), the fee is £4,628;
b
any other application for regulatory assistance meeting the condition in sub-paragraph (6) and made at the same time as the first application, the fee is £2,769;
c
each subsequent application for regulatory assistance (“subsequent application”), the fee is £3,855; and
d
any other application for regulatory assistance meeting the condition in sub-paragraph (6) and made at the same time as any subsequent application, the fee is £2,769.
5
In the case where the application to the licensing authority relates to a medicinal product for which a marketing authorization was granted in the United Kingdom and the original application had been a simple application or would fall within the meaning of a simple application, in respect of —
a
the first application for regulatory assistance (“the first application”), the fee is £2,769;
b
any other application for regulatory assistance meeting the condition in sub-paragraph (6) and made at the same time as the first application, the fee is £2,769;
c
each subsequent application for regulatory assistance (“subsequent application”), the fee is £2,769; and
d
any other application for regulatory assistance meeting the condition in sub-paragraph (6) and made at the same time as any subsequent application, the fee is £2,769.
6
The condition referred to in sub-paragraphs (2) to (5) is that all applications fall within the meaning given to a set of applications in regulation 15.
PART 4 Capital Fees for Applications for Variations of Authorizations, Licences and Registrations
Marketing authorizations
35
1
Subject to paragraphs 36 to 39 and 46 to 48, the fee payable under regulation 18(1) in connection with an application for a variation to the terms of a marketing authorization of a kind described in column 1 of the appropriate table is the fee specified in the corresponding entry in column 2 of the appropriate table.
2
In sub-paragraph (1), the appropriate table is —
a
in respect of an application for a variation of a marketing authorization which is within the scope of EC Regulation No. 1234/2008 , Table 1;
b
in respect of a UK national variation application, Table 2;
c
in respect of a reclassification variation application, Table 3.
3
In Table 1, “reference authority” has the meaning given in Article 20(2)(b) of EC Regulation No. 1234/2008.
4
In Table 2, “UK national variation application” means a variation to a notification of, or an application for, a variation to the terms of a marketing authorization which is not within the scope of EC Regulation No. 1234/2008 and which —
a
is a change set out in the document entitled “UK National MA Variations Guidance” published by the licensing authority and available on its website on 30th November 2009 ; and
b
complies with the procedures and conditions to be fulfilled as set out in that document,
and the expressions “National Type 1B Application”, “National Type II Application”, “National Type II Complex Variation Application”, “National Type II Extended Complex Variation Application”, “National Type IB Minor Variation Group Application”, “National Type II Major Variation Group Application” and “National Type II Major Variation Complex Group Application” shall be interpreted accordingly.
Table 1
Fees for applications for variations of marketing authorizations falling within the scope of EC Regulation No. 1234/2008
Column 1
Kind of variation
Column 2
Fee payable
1. Application for a single kind variation (a) Type IB Application where — (i) the UK is a concerned Member State £300
(ii) the UK is the reference Member State or the licensing authority is the reference authority for work sharing £594
(b) Type II Application where — (i) the UK is a concerned Member State £794
(ii) the UK is the reference Member State or the licensing authority is the reference authority for work sharing £962 (c) Type II Complex Variation Application where — (i) the UK is a concerned Member State £8,981
(ii) the UK is the reference Member State or the licensing authority is the reference authority for work sharing £15,571
(d) Extended Type II Complex Variation Application where — (i) the UK is a concerned Member State £27,716
(ii) the UK is the reference Member State or the licensing authority is the reference authority for work sharing
£38,744 2. Applications for a Group (a) Minor Variation (Type IB) Group Application where — (i) the UK is a concerned Member State £672
(ii) the UK is the reference Member State or the licensing authority is the reference authority for work sharing £1,324
(b) Major Variation (Type II) Group Application where — (i) the UK is a concerned Member State £1,786
(ii) the UK is the reference Member State or the licensing authority is the reference authority for work sharing £2,158 (c) Major Variation (Type II) Complex Group Application where — (i) the UK is a concerned Member State £9,738
(ii) the UK is the reference Member State or the licensing authority is the reference authority for work sharing £16,465
(d) Major Variation (Type II) Extended Complex Group Application where — (i) the UK is a concerned Member State £28,401
(ii) the UK is the reference Member State or the licensing authority is the reference authority for work sharing £39,693
Table 2
Fees for UK national variation applications
Column 1
Kind of national variation
Column 2
Fee payable
1. National Type 1B Application £300 2. National Type II Application £794 3. National Type II Complex Variation Application £8,981 4. National Type II Extended Complex Variation Application £27,716 5. National Type IB Minor Variation Group Application £672 6. National Type II Major Variation Group Application £1,786 7. National Type II Major Variation Complex Group Application £9,738 8. National Type II Major Variation Extended Complex Group Application £28,401
Table 3
Fees for reclassification variation applications
Column 1
Kind of reclassification variation
Column 2
Fee payable
Application falling within the category described in — (a) paragraph 15(a) £12,961 (b) paragraph 15(b) £8,822
Variation of marketing authorizations
36
1
Subject to sub-paragraph (3), if an application to vary a marketing authorization of a kind described in sub-paragraph (2) is —
a
the first application to vary a marketing authorization;
b
made within 5 years of the date of grant of the marketing authorization; and
c
an application to authorise use of the medicinal product in a new therapeutic area,
the fee payable for that application is the fee payable under regulation 18(1) together with the difference between that fee and the fee which would have been payable if the application had been a major application.
2
In this paragraph a marketing authorization is one which has been granted in accordance with an application to which point 6 of Part II of Annex I to the 2001 Directive applies or which is in respect of an orphan medicinal product.
3
Sub-paragraph (1) and (2) shall not apply where the first application for variation of the marketing authorization relates to a therapeutic area, in respect of which the applicant would be entitled (had the applicant not already held a marketing authorization) to apply for a marketing authorization to which point 6 of Part II of Annex I to the 2001 Directive applies or which is in respect of an orphan medicinal product.
Reclassification of marketing authorizations
37
1
Where an application is a reclassification variation application to which this paragraph applies, the fee payable under regulation 18(1) in connection with the application for variation of a marketing authorization is £794.
2
This paragraph applies to a reclassification variation application which would have the effect that a medicinal product to which the marketing authorization relates —
a
is to be available only from a pharmacy (where previously it was available only on prescription), if an analogous medicinal product is available only from a pharmacy or on general sale; or
b
is to be available on general sale (where previously it was available only on prescription or only from a pharmacy), if an analogous medicinal product is available on general sale.
3
For the purposes of this paragraph, an analogous medicinal product is a medicinal product which has a United Kingdom marketing authorization or a European Union marketing authorization and which —
a
has the same active ingredient, route of administration and use;
b
has the same strength or a higher strength;
c
has the same dosage or daily dosage, or a higher dosage or daily dosage; and
d
is for sale or supply at the same quantity or a greater quantity,
as the medicinal product in relation to which the variation application is made.
Variation of marketing authorization: national homoeopathic products
38
The fee payable under regulation 18(1) in connection with an application for a variation of a marketing authorization in respect of a national homoeopathic product is —
a
£263 where the application is a standard variation application for a homoeopathic medicinal product;
b
£408 where the application is a new indication variation application; and
c
£133 for any other application.
Variation of parallel import licence
39
1
The fee payable under regulation 18(1) in connection with an application for variation of a parallel import licence is —
a
£13,595 if, were the marketing authorization not a parallel import licence, the application for the variation would be a reclassification variation application falling within paragraph 15(a) and to which paragraph 37 of this Schedule does not apply;
b
£9,252 if, were the marketing authorization not a parallel import licence, the application for the variation would be a reclassification variation application falling within paragraph 15(b) and to which paragraph 37 of this Schedule does not apply; and
c
£386, in any other case other than where the variation applied for is an administrative variation.
2
For the purposes of sub-paragraph (1)(c) an application for an administrative variation is where the variation applied for falls within one of the following paragraphs —
a
a change of either or both of the name and the address of the holder of the licence;
b
a change of either or both of the name and the address of a manufacturer, assembler, storer or distributor named in the licence where the change has been occasioned by the taking over of an existing business, whether by purchase, merger or otherwise, and any change of address does not involve a change of the site of manufacture, assembly or storage or of the site from which distribution takes place;
c
the removal from the licence of details of one or more of the sites of manufacture, assembly or storage or of the sites from which distribution takes place;
d
the removal from the licence of details of any of the activities to which the licence relates;
e
the removal from the licence of details of any of the medicinal products which the holder of the licence is authorized to import;
f
the addition or deletion of the name and address of the suppliers of the medicinal product to which the licence relates, or a change in the name, the address, or both the name and address, of the suppliers of that product; or
g
unless paragraph 8 of Schedule 6 applies, a change consequential upon any or any combination of the following —
i
a change of ownership of the United Kingdom marketing authorization in respect of which the parallel import licence was granted,
ii
a change to the number of the United Kingdom marketing authorization in respect of which the parallel import licence was granted,
iii
a change to the name of the holder of the United Kingdom marketing authorization in respect of which the parallel import licence was granted,
iv
a change to the address of the holder of the United Kingdom marketing authorization in respect of which the parallel import licence was granted,
v
a change to the number of the marketing authorization for the product in the country where the product originates,
vi
a change of ownership of the marketing authorization for the product in the country where the product originates,
vii
a change to the name of the holder of the marketing authorization for the product in the country where the product originates, or
viii
a change to the address of the holder of the marketing authorization for the product in the country where the product originates,
where the change has been occasioned by the taking over of an existing business, whether by purchase, merger or otherwise, if the marketing authorization was not a parallel import licence, the application for that variation would be a reclassification variation application to which paragraph 38 of this Schedule applies.
Manufacturer’s authorisations and licences
40
Unless the fee in paragraph 41 is payable or paragraph 46 applies, the fee payable under regulation 18(1)(c) or (d) in connection with an application for variation of a manufacturing authorisation or a manufacturer’s licence is —
a
£250 in the case of a manufacturer’s licence referred to in paragraph 30(2); and
b
£500 in any other case.
Variation of manufacturer’s authorisations and licences
41
The fee payable under regulation 18(1)(c) or (d) in connection with an application for variation of a manufacturing authorisation or a manufacturer’s licence is £250 in respect of each variation applied for which constitutes a change to the authorisation or licence not requiring an inspection or medical, scientific or pharmaceutical assessment.
Wholesale dealer’s licences
42
Unless the fee in paragraph 43 is payable or paragraph 46 applies, the fee payable under regulation 18(1)(c) in connection with an application for a variation of a wholesale dealer’s licence is £473.
Variation of wholesale dealer’s licence
43
The fee payable under regulation 18(1)(c) in connection with an application for variation of a wholesale dealer’s licence is £250 in respect of each variation applied for which consists of a change to the licence not requiring an inspection or medical, scientific or pharmaceutical assessment.
Clinical trial authorisations
44
1
The fee payable under regulation 19(1) in connection with a notice of amendment relating to amendment to the dossier accompanying a request for authorisation to conduct a clinical trial is —
a
£265 if the amendments relate to one of the parts of the dossier specified in sub-paragraph (2) only;
b
£530 if the amendments relate to two parts of the dossier specified in sub-paragraph (2) only; or
c
£795 if the amendments relate to all three parts of the dossier specified in sub-paragraph (2) only.
2
The parts of the dossier specified in sub-paragraph (1) are —
a
the part containing the summaries of the chemical, pharmaceutical and biological data relating to the medicinal product tested or used in the trial;
b
the part containing the summaries of the non-clinical, pharmacological and toxicology data on that product; and
c
the part containing the summaries of the available data from previous clinical trials of, and human experience with, that product.
Traditional herbal registrations
45
Unless paragraph 46 applies, the fee payable under regulation 18(1) in connection with an application for variation of a traditional herbal registration is —
a
£260 if the application is a standard variation application;
b
£687 if the application is a complex variation application;
c
£7,767 if the application is a new excipient variation application; and
d
£164 if the application is an administrative variation application.
Identical variations
46
1
Unless paragraph 47 or 48 applies, where more than one application —
a
of a type referred to in sub-paragraph (2) is made at the same time by the same marketing authorization holder and all of the applications are for identical kinds of variations; or
b
by the same applicant is made at the same time for a traditional herbal registration, a manufacturer’s licence, or a wholesale dealer’s licence and where the applications are for identical variations,
the fee payable under regulation 18(1) is that specified in sub-paragraph (3).
2
The type of application referred to in sub-paragraph (1) is a —
a
Type IB Application;
b
Type II Application;
c
Minor Variation (Type IB) Group Application; or
d
Major Variation (Type II) Group Application.
3
The fee referred to in sub-paragraph (1) —
a
in connection with the first application considered by the licensing authority is the appropriate amount specified in this Part of this Schedule; and
b
in connection with each of the other applications is 50% of that amount.
Complex Variation Applications
47
1
Where more than one application of a type referred to in sub-paragraph (2) is made at the same time by the same marketing authorization holder and all of the applications are for identical kinds of variations, the fee payable under regulation 18(1) —
a
in connection with the first application considered by the licensing authority is the appropriate amount specified in this Part of the Schedule; and
b
in connection with each of the other applications in respect of which no further medical, scientific or pharmaceutical assessment is required, is the amount which would be payable if the application was a Type II Application.
2
The type of application referred to in sub-paragraph (1) is a —
a
Type II Complex Variation Application;
b
Extended Type II Complex Variation Application;
c
Major Variation (Type II) Complex Group Application; or
d
Major Variation (Type II) Extended Complex Group Application.
Multiple reclassification variation applications
48
Where more than one reclassification variation application is made at the same time by the same applicant, each relating to medicinal products which have the same active ingredient or combination of ingredients, the fee payable under regulation 18(1) —
a
if one or more of the applications is an application to which paragraph 37 does not apply —
i
in connection with the first application to which paragraph 37 does not apply, is the appropriate amount specified in this Part of the Schedule;
ii
in connection with each other application to which paragraph 37 does not apply, the fee payable is £794; and
iii
in connection with each other application to which paragraph 37 does apply, the fee payable is £397; and
b
in any other case —
i
in connection with the first application, is the appropriate amount specified in this Part of the Schedule; and
ii
in connection with each other application, the fee payable is £397.
PART 5 Capital Fees for Assessment of Labels and Leaflets
A set of changes
49
1
Unless paragraph 50 applies, the fee payable under regulation 22(1) in connection with a set of proposed changes to the labelling or the package leaflet of a medicinal product is —
a
£559, in respect of a product which is the subject of a United Kingdom marketing authorization (other than a parallel import licence); and
b
£354, in respect of a product which is the subject of a parallel import licence.
2
If the proposed changes in respect of a product to which the fee in sub-paragraph (1)(a) applies are submitted in accordance with the National Guidance on labels and leaflets self-certification, the fee payable under regulation 22(1) is £201.
3
For the purpose of this paragraph —
a
changes are submitted in accordance with the National Guidance on labels and leaflets self-certification if they are of a type described in the National Guidance on labelling and patient information leaflets for self-certification and comply with the conditions set out in relation to those changes in that Guidance; and
b
the “National Guidance on labelling and patient information leaflets for self-certification” means the documents entitled “Guidance on changes to labelling and patient information for self-certification” and “Guidance on changes to labelling for self certification – compliance with article 56(a) – inclusion of Braille on the labelling” published by the licensing authority and available on its website .
More than one set of changes proposed
50
1
In this paragraph, “clinical particulars” means the clinical particulars contained in the Summary of Product Characteristics for that product as specified in paragraph 4 of Article 11 of the 2001 Directive.
2
This paragraph applies where more than one set of proposed changes falling within regulation 22(1) is submitted by the same marketing authorization holder at the same time and where —
a
the sets of proposed changes consist of identical changes to the labelling or package leaflets of products with the same active ingredient or combination of ingredients, dosage form and clinical particulars; or
b
the sets of proposed changes consist of identical changes to different versions of the labelling or package leaflet of the same product.
3
Where this paragraph applies, the fee payable under regulation 22(1) is —
a
in connection with the first set of proposed changes considered by the licensing authority, the appropriate amount specified in paragraph 49; and
b
in connection with each of the other sets of proposed changes, 50% of that amount.
PART 6 Capital Fees for Regulatory Assistance Given by the United Kingdom Acting as Reference Member State Relating to the Assessment of Applications for the Renewal of Specified Marketing Authorizations
Regulatory assistance
51
Unless paragraph 52 applies, the fee payable under regulation 26(1) in connection with regulatory assistance provided by the United Kingdom acting as reference Member State where an application is made to the licensing authority for the renewal of a United Kingdom marketing authorization in relation to a medicinal product which has been subject to the procedures specified in regulation 26(2), is —
a
£10,465 if the application for renewal relates to a medicinal product which, at the time the United Kingdom marketing authorization was granted, contained a new active ingredient and that renewal is the first renewal in relation to which the United Kingdom is to provide regulatory assistance acting as reference Member State; or
b
£807 in any other case.
Regulatory assistance – same manufacturer
52
1
This paragraph applies if more than one application falling within regulation 26(1) is made by the same applicant at the same time, each of which relates to medicinal products which have the same active ingredient or combination of ingredients, dosage form, therapeutic indications and Periodic Safety Update Reports, and the United Kingdom marketing authorizations for those products have the same date for renewal.
2
The fee payable under regulation 26(1) for applications to which sub-paragraph (1) applies is —
a
if the applications fall within paragraph 51(a) —
i
£10,465 for the first application considered by the licensing authority; and
ii
£807 for each other application;
b
if the applications fall within paragraph 51(b) —
i
£807 for the first application considered by the licensing authority; and
ii
£405 for each other application.
SCHEDULE 3
FEES FOR INSPECTIONS
Regulations 27(1), 30,31(2), 32(1)
General provisions relating to fees for inspections
1
1
In this Schedule, a reference to 1 day means a period of 7 hours.
2
For the purposes of paragraphs 3(2)(c), 4(2)(c), 6(2)(c) and 8, in calculating the number of days taken to make an inspection, any part day shall be calculated as a whole day.
3
Where an inspection is made at a site which is outside the United Kingdom, the fee for the inspection shall be increased by an amount equal to the travelling and subsistence costs of the inspector relating to the inspection and any additional costs (such as interpreters’ fees) reasonably incurred by the inspector in respect of that inspection as a result of its being at a site outside the United Kingdom.
4
If an inspection is made by more than one inspector, the time taken by the licensing authority to make an inspection is the total amount of time spent by each inspector in making the inspection.
Fees: general
2
1
The fee for an inspection made at a site is —
a
£2,583, if the time taken to make the inspection is not more than 1 day; and
b
thereafter, £1,292 for every additional period of 3 hours and 30 minutes or less taken to make the inspection.
2
Sub-paragraph (1) does not apply if the inspection is one for which a fee is payable under paragraphs 3 to 7.
Traditional herbal medicinal products
3
1
Sub–paragraph (2) applies if the site inspected is wholly concerned with the manufacture, assembly or import from a third country of traditional herbal medicinal products.
2
If this sub-paragraph applies, the fee payable in respect of an inspection of a site in connection with the grant, variation or renewal of a manufacturer’s licence or during the currency of such a licence, is —
a
£967 if the time taken to make the inspection is not more than 3 hours;
b
£1,571 if the time taken to make the inspection is more than 3 hours but not more than 1 day; and
c
if the time taken to make the inspection is more than 1 day, the amount calculated by multiplying the total number of days taken to make the inspection by £1,571.
Sites concerned with starting materials for traditional herbal medicinal products
4
1
Sub-paragraph (2) applies if the site inspected is wholly concerned with the manufacture or assembly of starting material for use in the manufacture of traditional herbal medicinal products.
2
If this sub-paragraph applies, the fee payable in respect of an inspection of an API manufacturer pursuant to Article 111(1)(a) of the 2001 Directive, is —
a
£967 if the time taken to make the inspection is not more than 3 hours;
b
£1,571 if the time taken to make the inspection is more than 3 hours but not more than 1 day; and
c
if the time taken to make the inspection is more than 1 day, the amount calculated by multiplying the total number of days to make the inspection by £1,571.
Wholesale dealer’s licence: general
5
Except in the case of an inspection falling within paragraphs 6 or 7, the fee for an inspection of a site made in connection with the grant, variation or renewal of a wholesale dealer’s licence or during the currency of such a licence, is —
a
if the time taken to make the inspection is not more than 1 day, £1,882; and
b
if the time taken is 1 day or more, £1,882 for the first day and £941 for every subsequent period of 3 hours and 30 minutes or less taken to make the inspection.
Wholesale dealer’s licence: traditional herbal medicinal products
6
1
Sub–paragraph (2) applies if the site inspected is wholly concerned with the wholesale dealing of traditional herbal medicinal products.
2
If this sub-paragraph applies, the fee payable in respect of an inspection of a site in connection with the grant, variation or renewal of a wholesale dealer’s licence or during the currency of such a licence is —
a
£724 if the time taken to make the inspection is not more than 3 hours;
b
£1,330 if the time taken to make the inspection is more than 3 hours but not more than 1 day; and
c
if the time taken to make the inspection is more than 1 day, the amount calculated by multiplying the total number of days taken to make the inspection by £1,330.
Wholesale dealer’s licences: inspection of short duration
7
1
Sub-paragraph (4) applies if the time taken to make the inspection is not more than 3 hours and 30 minutes, and
a
the site is that of a wholesale dealer whose licence is limited to dealing only in medicinal products falling within a description or class specified in an Order made under section 51(1) (general sale lists) of the Act;
b
the site relates to a registered pharmacy as referred to in paragraph 31(3) of Part 2 of Schedule 2; or
c
the total turnover in respect of sales by way of wholesale dealing in authorised medicinal products of the wholesale dealer does not exceed £35,000.
2
If paragraph (c) of sub-paragraph (1) applies because the applicant has not held a wholesale dealer’s licence during the 12 month period preceding the date of the application, sub–paragraph (1) does not apply unless at the time of making the application —
a
it is reasonable for the applicant to believe that the gross amount of total sales of authorised medicinal products likely to be made in the period of 12 months following the grant of the licence will not exceed £35,000; and
b
the applicant so informs the licensing authority.
3
If this sub-paragraph applies, the fee payable in respect of an inspection of a site made in connection with the grant, variation or renewal of a wholesale dealer’s licence is £941.
Office-based inspections
8
The fee for an inspection comprising an office-based evaluation and risk assessment of documentation but not involving inspection of a site, in connection with the monitoring of —
a
good manufacturing practice, good clinical practice or good pharmacovigilance practice, is £1,812 per day;
b
good distribution practice, is £1,317 per day.
SCHEDULE 4
PERIODIC FEES FOR LICENCES
Regulation 33(2) and (3), 34(2)
PART 1 Interpretation
1
In this Schedule —
“anthroposophic product” means a medicinal product prepared in accordance with the methods of anthroposophic medicine which is sold or supplied as an anthroposophic product and is so described by the person who sells or supplies that medicinal product;
“derivative”, in relation to a limited use drug or a new active substance, means a medicinal product —
which contains the same active ingredient or combination of active ingredients as that drug or substance but which is either —
a different dosage form of that drug or substance; or
of the same dosage form as, but of a different strength of active ingredient to, or of a different combination of active ingredients to, that drug or substance; and
in respect of which an application for a marketing authorization was made before the determination of the application for the marketing authorization for that drug or substance;
“general sale list medicine” means a medicinal product (not being an anthroposophic product, a herbal remedy or a homoeopathic medicinal product) of a description or falling within a class specified in an Order made under section 51(1) (general sale lists) of the Act;
“limited use drug” means a medicinal product in respect of which an application for a marketing authorization has been submitted, to which point 6 of Part II of Annex I to the 2001 Directive applies or which is in respect of an orphan medicinal product;
“lower fee” means the periodic fee payable —
where the medicinal product has not been manufactured or imported into the United Kingdom during the period of 12 months preceding the commencement of the relevant fee period; or
in relation to a medicinal product that has been manufactured or imported into the United Kingdom during the period referred to in (a) above, where the value of the product sold or supplied during that period did not exceed £1,000; and
in relation to a prescription only product, where the authorization holder has notified the licensing authority that the medicinal product to which the marketing authorization relates, is not expected to be manufactured, or imported into the United Kingdom during the relevant fee period; or
in relation to a pharmacy medicine or a general sale list medicine, the periodic fee payable during the relevant fee period;
“new active substance” means a medicinal product which is not a limited use drug and which contains an active ingredient which has not previously been included as an active ingredient in a medicinal product in respect of which a marketing authorization (other than a product licence of right) has been granted in the five years preceding 31st December in the fee period preceding the relevant fee period;
“pharmacy medicine” means a medicinal product (not being an anthroposophic product, a herbal remedy or a homoeopathic medicinal product) which is neither a prescription only medicine nor a general sale list medicine;
“prescription only medicine” means a medicinal product (not being an anthroposophic product, a herbal remedy, a homoeopathic product, a new active substance or a derivative of a new active substance) of a description or falling within a class specified in an Order made under section 58(1) (medicinal products on prescription only) of the Act;
“reduced rate fee” means the periodic fee payable in relation to a prescription only medicine where the total value of the product which is sold or supplied in the relevant fee period does not exceed £35,000;
“standard fee” means the periodic fee payable in relation to a prescription only medicine where the total value of the product which is sold or supplied in the relevant fee period exceeds £35,000; and
“total value of the product” means the amount calculated in accordance with Part 2 of this Schedule.
PART 2 Value of the Product Sold or Supplied
Determining the total value of the product
2
For the purposes of this Schedule, the “total value of the product” means, the gross value at manufacturer’s prices of all medicinal products to which the authorization relates that are sold or supplied in the United Kingdom by the holder of that authorization during a period of 12 months preceding the commencement of the relevant fee period.
Manufacturer’s prices
3
For the purposes of paragraph 2 manufacturer’s prices means —
a
for products manufactured or obtained, sold or supplied by the authorization holder to wholesalers or to distributors or assemblers named in the marketing authorization, which that holder has manufactured or obtained from the manufacturer, the prices charged for the supply;
b
for products sold or supplied by the authorization holder to retailers, which that holder has manufactured or obtained from the manufacturer, the prices which, in the opinion of the licensing authority, the authorization holder would have charged, in accordance with the practice prevailing during the relevant year, to a wholesaler of the product; or
c
for products sold or supplied by the authorization holder which that holder has neither manufactured nor obtained from the manufacturer, the price which he paid for the supply.
Information requirements
4
1
The authorisation holder shall determine the total value of product sold or supplied in accordance with paragraphs 2 and 3 and provide such information to the licensing authority if required to do so.
2
The licensing authority may additionally require an auditor’s certificate verifying the authorisation holder’s determination of the value of products sold or supplied.
3
If an auditor’s certificate has not been provided to the licensing authority within one month of it being required, or such longer period that the authority may allow, the periodic fee shall be calculated in accordance with sub-paragraph (4).
4
The periodic fees for the relevant fee period in question shall be equal to the fee provided for in paragraphs 10 and 13 of Part 3 of this Schedule or, such lesser sum as the licensing authority may specify in a written notice served on the authorization holder.
PART 3 Periodic Fees for Marketing Authorizations and Licences
Marketing authorizations
5
Unless paragraphs 6 to 10 apply, the fee payable under regulation 33(3) in connection with the holding of a marketing authorization relating to a medicinal product of a kind described in column 1 of the following table is the applicable fee specified in the corresponding entry in column 2 of that table.
Periodic fees for holding marketing authorization
Column 1
Type of Medicinal Product
Column 2
Fee payable
1. New Active Substance £23,025 2. Parallel Import £300 3. Others (a) Any product (not being a derivative of a new active substance) in respect of which a marketing authorization has been granted in consequence of a complex application submitted on or after 1st April 1989 £9,481 (b) Prescription Only Medicine (i) Standard Fee £2,371 (ii) Reduced Rate Fee £1,183 (iii) Lower Fee £300 (c) Pharmacy £300 (d) General Sale List £300 (e) Herbal remedy £75 (f) Traditional herbal registrations £75 (g) National homoeopathic product £75 (h) Homoeopathic or anthroposophic product which is the subject of a licence of right £75
Marketing authorization: where Part 2 of the Act applies
6
In the case of an article or substance to which Part II of the Act applies by virtue of the Medicines (Surgical Materials) Order 1971 , the fee payable under regulation 33(3) in connection with the holding of a marketing authorization or licence is £300.
Marketing authorization: derivatives
7
Unless paragraph 8 applies, where a marketing authorization is held in respect of a derivative of a new active substance, the fee payable under regulation 33(3) is —
a
£9,481 where the medicinal product to which the authorization relates has a different route of administration from that of the new active substance; or
b
£6,400 in any other case.
Number of fee periods
8
1
The fee specified in —
a
paragraph 5 for a new active substance; and
b
in paragraph 7 for a derivative of a new active substance,
is only payable for the five relevant fee periods following that in which the marketing authorization is granted.
2
The fee payable in accordance with entry 3(a) of the table set out in paragraph 5 is only payable for the three relevant fee periods following the year beginning 1st April during which the marketing authorization is granted.
3
Where a marketing authorization is surrendered and at the same time another marketing authorization held by the authorization holder is varied so as to include in that other authorization the provisions of the first authorization, the fee payable —
a
for the five relevant fee periods following the fee period during which the marketing authorization is granted is the fee specified at entry 1 of the table set out in paragraph 5, where the first authorization relates to a new active substance;
b
in all other cases, for each fee period mentioned in sub-paragraph (2), is the fee specified at entry 3(a) of that table.
4
In respect of fee periods following those referred to in sub-paragraphs (1) to (3) of this paragraph, the periodic fees are the appropriate fees for the kind of medicinal product in question specified in entries 3(b), (c) or (d) of the table set out in paragraph 5.
5
In connection with the holding of a marketing authorization in respect of a limited use drug or a derivative of a limited use drug —
a
where the total value of the product sold or supplied exceeds £200,000, until the expiry of the five relevant fee periods following the fee period during which the marketing authorization was granted, the periodic fee payable is the fee that would be payable if the drug were, respectively, a new active substance or a derivative of a new active substance;
b
where the total value of the product sold or supplied does not exceed £200,000 or where a periodic fee has been payable in respect of the limited use drug or derivative of a limited use drug for five relevant fee periods following the fee period during which the marketing authorization was granted, the periodic fee payable is the fee payable in respect of a prescription only medicine in accordance with entry 3(b)(i) of the table set out in paragraph 5.
Authorisation for two or more kinds of medicinal product
9
Where a marketing authorization relates to any two or more medicinal products of a kind described in entries 3(b), (c) or (d) of column 1 of the table in paragraph 5, the fee payable under regulation 33(3) shall be the lower of the fee specified as corresponding to those entries in column 2 of that table.
Reduced fees
10
Where a reduced rate fee or a lower fee may be payable in respect of any relevant fee period and an authorization holder does not submit information about the total value of the product sold or supplied in relation to the relevant calendar year to the satisfaction of the licensing authority, the periodic fee payable shall, where applicable, be the standard fee for each description of medicinal product in respect of which a marketing authorization is held by the authorization holder.
Manufacturer’s licences or manufacturing authorisations
11
1
Unless sub-paragraph (3) applies, the fee payable under regulation 33(3) in connection with the holding of a manufacturer’s licence is £457.
2
The fee payable under regulation 33(3) in connection with the holding of a manufacturing authorisation is £457.
3
The fee payable under regulation 33(3) in connection with the holding of a manufacturer’s licence which relates to the import of exempt imported products from a third country is the fee payable in accordance with sub-paragraph (1) and an additional amount calculated in accordance with paragraph 15.
Wholesale dealer’s licences
12
1
Subject to sub-paragraph (2) and to paragraphs 13 and 16, the fee payable under regulation 33(3) in connection with the holding of a wholesale dealer’s licence is £281.
2
The fee payable under regulation 33(3) is £168 where the wholesale dealer’s licence —
a
relates to anything done in a registered pharmacy by or under the supervision of a pharmacist and amounts to wholesale dealing, where such dealing constitutes no more than 15% of the total value of the sale of authorised medicinal products carried on at that pharmacy;
b
does not relate to anything done in a registered pharmacy, where the total value of the sale by way of wholesale dealing in authorised medicinal products does not exceed £35,000; or
c
relates to general sale list medicines only.
3
For the purposes of sub-paragraph (2), the total value shall be calculated in accordance with Part 2 of this Schedule and the references to “marketing authorization” and “authorization holder” in Part 2 shall be interpreted as if they were references to “wholesale dealer’s licence” and “licence holder”, respectively.
Wholesale dealer’s licences: evidence
13
Where in respect of any relevant fee period, the holder of a wholesale dealer’s licence does not submit evidence of turnover in relation to the relevant fee period to the satisfaction of the licensing authority, the periodic fee payable shall be the fee prescribed in paragraph 12(1).
Wholesale dealer’s licences: exempt imported products
14
The fee payable under regulation 33(3) in connection with the holding of a wholesale dealer’s licence which relates to exempt imported products is the fee payable in accordance with paragraphs 12 and 13 and an additional amount calculated in accordance with paragraph 15.
Additional amount for manufacturer’s licences and wholesale dealer’s licences which relate to exempt imported products
15
1
The additional amount referred to in paragraph 11(3) and 14 in relation to any fee period shall be the fee specified in the entry in column 2 of the following table corresponding to the estimated number of special import notices for that fee period specified in column 1.
Additional periodic fee in connection with exempt imported products
Column 1
Number of special import notices
Column 2
Additional amount
1 to 20 £126 21 to 100 £505 101 to 1,000 £2,020 1,001 to 5,000 £10,100 5,001 to 20,000 £25,250 20,001 to 50,000 £50,500 50,001 to 100,000 £101,000 100,001 or more £151,500
2
For the purposes of this paragraph, the estimated number of special import notices for any fee period shall be the number notified in writing to the licence holder by the licensing authority before the start of that fee period as the number of such notices which the authority estimate will be given by the holder during the fee period.
Clinical trial authorisations
16
The fee payable under regulation 34(2) in connection with the holding of a clinical trial authorisation is £342.
Traditional herbal registrations
17
The fee payable under regulation 33(3) in connection with the holding of a traditional herbal registration is £75.
PART 4 Types of Marketing Authorization for which only One Periodic Fee is Payable
Parallel import licences
18
In a case where a parallel import licence has been granted by the licensing authority the periodic fee relating to that licence is payable once only.
SCHEDULE 5
FEES FOR CERTIFICATES OF REGISTRATION
Regulation 42(1) and (2)
Column (1) Column 2 Column 3
Type of application Fees for applications in respect of products prepared from not more than 5 homoeopathic stocks Fees for other applications 1 An application in respect of a product which is both prepared solely from repeat stocks and is of a repeat formulation. £172 £425 2 An application in respect of a product which is either — £517 £761 (a) prepared solely from repeat stocks; or (b) is of a repeat formulation. 3 A mutual recognition procedure incoming application. £542 £690 4 A mutual recognition outgoing application (regulatory assistance). £310 £405 5 A decentralised procedure application where the UK is a concerned Member State. £465 £608 6 A decentralised procedure application where the UK is the reference Member State. £930 £1,217 7 Any other application. £854 £1,118
SCHEDULE 6
TIME FOR PAYMENT OF CAPITAL FEES: SMALL COMPANIES
Regulation 46(1)
Interpretation
1
In this Schedule a reference to an application is to an application made by or on behalf of a small company.
Major application
2
In connection with a major application for a marketing authorization for which the fee payable is that specified in entry 1(f) of the table in paragraph 24 of Part 2 of Schedule 2, the fee payable under regulation 12(1)(a) shall, if the applicant so requests in writing, be payable as to 25% at the time of the application and as to 75% within 30 days following written notice from the licensing authority that the application has been determined.
Complex application
3
In connection with a complex application for a marketing authorization, the fee payable under regulation 12(1)(a) shall, if the applicant so requests in writing, be payable —
a
as to 50% at the time of the application; and
b
as to 50% within 30 days following written notice from the licensing authority that the application has been determined.
Multiple application
4
In connection with an application to which paragraph 28 of Part 2 of Schedule 2 applies, the fee payable under regulation 12(1)(a) shall, if the applicant so requests in writing, be payable —
a
as to 50% of the total payable in accordance with that paragraph at the time of the application; and
b
as to 50% of that total within 30 days following written notice from the licensing authority that the application has been determined.
Outgoing mutual recognition application
5
As regards the fee payable under regulation 16 in connection with an application —
a
to which paragraph 34(2) of Part 3 of Schedule 2 applies —
i
25% of that fee shall be payable at the time when, in connection with the application or set of applications for regulatory assistance, a request is made pursuant to the second sub-paragraph of Article 28(1) of the 2001 Directive for an assessment report to be prepared or updated; and
ii
75% of that fee shall become payable within 30 days following written notice from the licensing authority that the regulatory assistance is at an end;
b
to which paragraph 34(3), (4) or (5), of Part 3 of Schedule 2 applies —
i
50% of that fee shall be payable at the time when, in connection with the application or set of applications for regulatory assistance, a request is made pursuant to the second sub-paragraph of Article 28(1) of the 2001 Directive for an assessment report to be prepared or updated, and
ii
50% of that fee shall become payable within 30 days following written notice from the licensing authority that the regulatory assistance is at an end,
if the applicant so requests in writing.
Application for traditional herbal registration
6
In connection with an application for a traditional herbal registration, the fee payable under regulation 12(1)(a) shall, if the applicant so requests in writing, be payable as to 50% at the time of the application and as to 50% within 12 months after that time.
Traditional herbal registration: complex variation
7
In connection with a complex variation application or a new excipient variation application to vary a traditional herbal registration, the fee payable under regulation 18(1) shall, if the applicant so requests in writing, be payable as to 50% at the time of the application and as to 50% within 12 months after that time.
Application for manufacturer’s licence, manufacturing authorisation or wholesale dealer’s licence
8
In connection with an application for a manufacturer’s licence, manufacturing authorisation or a wholesale dealer’s licence the fee payable under regulation 12(1)(a) shall, if the applicant so requests in writing, be payable as to 50% at the time of the application and as to 50% within 12 months after that time.
Inspection fees in connection with applications
9
In connection with an application for a marketing authorization, traditional herbal registration, manufacturer’s licence or manufacturing authorisation, the fee payable in respect of an inspection at any site other than one named as a possible site for manufacture of a medicinal product by three or more applicants shall, if the applicant so requests in writing, be payable as to 50% within the period of 14 days referred to in regulation 45(1)(b) and as to 50% within 12 months after that date.
SCHEDULE 7
WAIVER, REDUCTION OR REFUND OF CAPITAL FEES
Regulation 52(2)
Interruptions of manufacture, assembly, sale or supply
1
Where the manufacture, assembly, sale or supply of medicinal products of a particular class or description will be, or is likely to be, interrupted for a period and in consequence thereof the health of the community will be, or is likely to be, put at risk, any capital fees payable under these Regulations in connection with an application for the grant of a marketing authorization or a manufacturer’s licence relating to a medicinal product falling within that class or description and made during that period or, if the period will, or is likely to, exceed 3 months of that period, shall be waived.
Reclassification
2
1
Where —
a
an application for a marketing authorization includes a reclassification element within the meaning of paragraph 25 of Part 2 of Schedule 2; and
b
the licensing authority is satisfied that the reclassification element does not require consideration by a committee established under section 4 (establishment of committees) of the Act or by the Commission established under section 2A (establishment of the Commission on Human Medicines) of the Act ,
50% of the additional amount payable under paragraph 25(1)(a) or (b) or 28(4)(a) of Part 2 of that Schedule shall be refunded, or if it has not yet been paid, shall be waived.
2
Where —
a
an application for variation of a marketing authorization is a reclassification variation application (not being an application falling within paragraph 37 of Part 4 of Schedule 2); and
b
the licensing authority is satisfied that the application does not require consideration by a committee established under section 4 (establishment of committees) of the Act or by the Commission established under section 2A (establishment of the Commission on Human Medicines) of the Act,
50% of the fee payable under paragraph 35 of Schedule 2 and entry 1(c)(i) of Table 1 referred to in that paragraph or of the fee payable under paragraph 48(a)(i) of Part 4 of Schedule 2 shall be refunded, or if it has not yet been paid, shall be waived.
3
Where —
a
an application for variation of a parallel import licence falls within paragraph 39(1)(a) of Part 4 of Schedule 2; and
b
the licensing authority is satisfied that the application does not require consideration by a committee established under section 4 (establishment of committees) of the Act or by the Commission established under section 2A (establishment of the Commission on Human Medicines) of the Act,
50% of the fee payable under that paragraph shall be refunded, or if it has not yet been paid, shall be waived.
4
For the purposes of sub-paragraphs (1) to (3), a reclassification element or, as the case may be, a variation application does not require consideration by a committee established under section 4 (establishment of committees) of the Act or by the Commission established under section 2A (establishment of the Commission on Human Medicines) of the Act where —
a
the licensing authority is satisfied that the application does not require consideration by such a committee or the Commission; and
b
the committee or the Commission are consulted only by virtue of, or in accordance with, paragraph 5 of Schedule 2 to the Marketing Authorisation Regulations (procedural provisions relating to the grant, renewal, variation, revocation and suspension of United Kingdom marketing authorizations).
Variation of a traditional herbal registration
3
Where at the specific written request of the licensing authority, or in response to the imposition of an urgent safety restriction under regulation 8 of the Herbal Regulations, an application is made for the variation of a traditional herbal registration so as to —
a
restrict any one or more of the indications, dosage or target population; or
b
add a new contraindication or a warning or both of these,
as a consequence of new information having a bearing on the safe use of the product, the fee payable under regulation 18(1) shall be refunded or, if it has not yet been paid, shall be waived.
Withdrawal of application in relation to marketing authorization, traditional herbal registration or clinical trial authorisation
4
1
Subject to sub-paragraph (2), where an application for the grant of, or for a variation to, a marketing authorization or traditional herbal registration, or, an application for a clinical trial authorisation or a notice of amendment to a clinical trial authorisation is withdrawn before determination by the licensing authority, the following percentage of the fee otherwise payable under regulations 12(1)(a), 18(1) or 19(1) in connection with that application or notice shall be refunded or, if it has not yet been paid, shall be waived —
a
if the application or notice has been received but no medical, scientific or pharmaceutical assessment thereof has begun, 90%;
b
except in a case to which sub-paragraph (c) applies, if medical, scientific or pharmaceutical assessment has begun but not been completed, 50%;
c
if a request for further information in connection with the application has been made by the licensing authority under section 44(1) (provision of information to licensing authority) of the Act or in pursuance of a European Union provision which applies to applications for marketing authorizations or traditional herbal registrations, 25%.
2
If an application for the grant of, or for a variation to, a marketing authorization or traditional herbal registration, or an application for a clinical trial authorisation or a notice of amendment to a clinical trial authorisation, is withdrawn either after medical, scientific and pharmaceutical assessment has been completed or following consideration of that application by a committee established under section 4 (establishment of committees) of the Act or by the Commission established under section 2A (establishment of the Commission on Human Medicines) of the Act, no refund or waiver of the fee payable under regulation 12(1)(a), 18(1) or 19(1) in connection with that application or notice shall be made under this paragraph.
Withdrawal of application in relation to a certificate of registration
5
Where a person withdraws an application for the grant of a certificate of registration before it has been determined by the licensing authority the following percentage of the fee otherwise payable under regulation 41 of these Regulations shall be refunded, or if it has not yet been paid, shall be waived —
a
if the application has been received but no medical, scientific or pharmaceutical assessment of the application has begun, 90%;
b
if medical, scientific or pharmaceutical assessment of the application has begun but has not been completed, 50%;
c
if medical, scientific or pharmaceutical assessment or consideration by the Board of the application has been completed, no refund or waiver of the fee shall be made.
Withdrawal of application in relation to manufacturing authorisation, wholesale dealer’s licence or manufacturer’s licence
6
Where an application for the grant of, or for a variation to, a manufacturing authorisation, a manufacturer’s licence or a wholesale dealer’s licence is withdrawn before determination by the licensing authority, the following percentage of the fee otherwise payable under regulation 12(1)(a) or 18(1) in connection with that application shall be refunded or, if it has not yet been paid, shall be waived —
a
if the application is withdrawn before any inspection in connection with that application has been made, 90%; or
b
if such an inspection has been made, 50%.
Refusal of application for grant of marketing authorization, traditional herbal registration or clinical trial authorisation
7
Where an application for the grant of a marketing authorization or traditional herbal registration, or an application for a clinical trial authorisation is refused by the licensing authority and —
a
the information contained in it, or submitted with it, was not sufficient to enable a full medical, scientific or pharmaceutical assessment to be undertaken; and
b
if the applicant had withdrawn it before it was refused, part of the fee payable in respect of it would have been refunded or waived under paragraph 3,
there shall be refunded or waived the amount which would have been refunded or waived if the application had been withdrawn before it was refused by the licensing authority.
Parallel import licence
8
The fee payable for an application to vary a parallel import licence shall be waived if the application is made only —
a
because of a change to the number of an authorization granted pursuant to the provisions of the 2001 Directive by another Member State for a product to which the licence relates; and
b
so that the number of that authorization shown on the licence can be changed.
Surrender of marketing authorization at same time as a variation application
9
1
Subject to sub-paragraphs (2) and (3), where an applicant applies to vary a marketing authorization in the circumstances set out in paragraph 8(3) of Part 3 of Schedule 4, the fee payable under regulation 18(1) shall be refunded or waived.
2
Subject to sub-paragraph (3), where an applicant on the same occasion submits more than one such application which relates to medicinal products containing the same active ingredients but no other active ingredient, sub-paragraph (1) shall apply only to one of those applications.
3
Where in respect of any two or more of the applications mentioned in sub-paragraph (2) provision is made for fees of different amounts by paragraphs 46 and 47 of Part 4 of Schedule 2, sub-paragraph (1) shall apply to the application in respect of which of those paragraphs make provision for the higher or highest fee.
Clinical trial authorisation
10
1
In relation to an application for a clinical trial authorisation in relation to a Phase I trial or a Phase II or Phase III trial, the fee payable in respect of such an application may be reduced in accordance with the following sub-paragraphs.
2
Where the licensing authority is satisfied that the investigational medicinal product dossier submitted in accordance with paragraph 11 of Schedule 3 to the Clinical Trials Regulations does not require a full medical, scientific or pharmaceutical assessment, the fee may be reduced by an amount which the authority considers to be the cost of the assessment work which is not required.
3
The fee payable may not be reduced below £100.
4
Where the fee has been reduced by the licensing authority but the applicant has paid the full fee, the amount by which the fee has been reduced shall be refunded.
5
In this paragraph, “Phase I trial” and “Phase II or Phase III trial” have the same meaning as in paragraph 1 of Schedule 2.
Scientific advice: paediatric indications
11
1
Where the licensing authority holds a meeting referred to in regulation 4 in order to provide scientific advice with a view to a person making an application other than a major application or an application for a paediatric use marketing authorisation the fee shall be waived if —
a
sub-paragraphs (2) or (3) apply to the application; and
b
the meeting is held solely for the purpose of providing advice in relation to the application.
2
This sub-paragraph applies to the application if —
a
the application relates to a medicinal product which is intended to be used in accordance with an authorisation for a paediatric indication; and
b
no other product which has the same active ingredient and is intended to be used in accordance with the same indication and for the same part of the paediatric population as the product in question has previously been granted a marketing authorization.
3
This sub-paragraph applies to the application if —
a
the application relates to a medicinal product which is intended to be used in accordance with an authorisation for a paediatric indication;
b
as a result of the application the medicinal product will be available in a formulation which the licensing authority considers to be of significant benefit to that population in comparison to other medicinal products on the market in the United Kingdom; and
c
no other product which has the same active ingredient and is in the same formulation as proposed for the product in question has previously been granted a marketing authorization.
4
In this paragraph —
a
a medicinal product is authorised for a paediatric indication if it is authorised for use in part or all of that part of the population aged between birth and 18 years and the details of the authorised indication are specified in the summary of characteristics drawn up in accordance with Article 11 of the 2001 Directive ;
b
“paediatric use marketing authorization” means a marketing authorization granted in respect of a medicinal product for human use which is not protected by a supplementary protection certificate or by a patent which qualifies for the granting of such a certificate, covering exclusively therapeutic indications which are relevant for use in the paediatric population, or subsets thereof, including the appropriate strength, pharmaceutical form or route of administration for that product; and
c
“supplementary protection certificate” means a certificate granted under Council Regulation (EC) No. 469/2009 concerning the creation of a supplementary protection certificate for medicinal products and a patent qualifies for the granting of such a certificate if the provisions of that Regulation so provide.
Refunds: treated as having been paid on account
12
Any sums payable to the applicant by way of refund of any fees under the provisions of this Schedule may be treated as having been paid on account of any other fee which the applicant is liable to pay (whether by instalments or otherwise) under the provisions of these Regulations.
SCHEDULE 8
ADJUSTMENT, REDUCTION OR REFUND OF PERIODIC FEES
Regulation 52(2)
Refund on surrender or revocation of authorization, registration or licence
1
Where, after payment of a periodic fee payable in accordance with the provisions of these Regulations, the marketing authorization, traditional herbal registration or licence in respect of which such a fee has been paid is either —
a
surrendered at the specific written invitation of the licensing authority; or
b
revoked by the licensing authority on a date earlier than the date of expiry stated in the marketing authorization, traditional herbal registration or licence,
the licensing authority shall refund the whole or any part of the difference between such periodic fee as has been paid and the amount of the periodic fee payable on the basis of the actual duration of the marketing authorization, traditional herbal registration or licence up to the date of such surrender or revocation.
Adjustment and refund: licences relating to exempt imported products
2
1
This paragraph applies to periodic fees payable in connection with a manufacturer’s licence or a wholesale dealer’s licence which relates to exempt imported products.
2
If during a fee period the number of special import notices given by a licence holder is greater than the estimated number notified by the licensing authority in accordance with paragraph 15 of Part 3 of Schedule 4, the periodic fee payable in relation to that period shall be increased by the difference, if any, between the amount payable in accordance with that paragraph and the amount which would have been payable if the estimated number notified by the licensing authority for that fee period had been the same as the actual number of notices given during that year.
3
If during a fee period the number of special import notices given by a licence holder is less than the estimated number notified by the licensing authority in accordance with paragraph 15 of Part 3 of Schedule 4, the licensing authority shall refund the difference, if any, between the amount payable in accordance with that paragraph and the amount which would have been payable if the estimated number notified by the licensing authority for that fee period had been the same as the actual number of notices given during that year.
Refunds: treated as having been paid on account
3
Any sums payable to the applicant by way of refund of any fees under the provisions of this Schedule may be treated as having been paid on account of any other fee which the applicant is liable to pay (whether by instalments or otherwise) under the provisions of these Regulations. |
The Consumer Credit (Total Charge for Credit) (Amendment) Regulations 2012
The Secretary of State makes these Regulations in exercise of the powers conferred by sections 20 and 182(2) of the Consumer Credit Act 1974 .
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Consumer Credit (Total Charge for Credit) (Amendment) Regulations 2012.
2
These Regulations shall come into force on 1st January 2013.
3
In these Regulations —
“the 2010 Regulations ” means the Consumer Credit (Total Charge for Credit) Regulations 2010 ;
“ the Act ” means the Consumer Credit Act 1974;
“credit advertisement” means an advertisement to which Part 4 of the Act applies by virtue of it falling within section 43(1)(a), or which falls within section 151(1) of the Act in so far as section 44 is applied to such an advertisement; and
“the EU Directive ” means Commission Directive 2011/90/ EU of 14th November 2011 amending Part II of Annex I to Directive 2008/48/ EC of the European Parliament and of the Council providing additional assumptions for the calculation of the annual percentage rate of charge .
Amendments to the 2010 Regulations
2
The 2010 Regulations are amended as specified in regulations 3 to 5.
3
In regulation 2 (interpretation) after paragraph (2)(b) insert —
c
a reference to an open-end consumer credit agreement is to a consumer credit agreement of no fixed duration and includes credits which must be repaid in full within or after a period but, once repaid, become available to be drawn down again.
.
4
For regulation 6 (assumptions for calculation) substitute —
Assumptions for calculation
6
For the purposes of calculating the total charge for credit and the annual percentage rate of charge —
a
it shall be assumed that the consumer credit agreement is to remain valid for the period agreed and that the creditor and the debtor will fulfil their obligations under the terms and by the dates specified in that agreement;
b
in the case of a consumer credit agreement allowing variations in —
i
the rate of interest, or
ii
where applicable, charges contained in the annual percentage rate of charge,
where these cannot be quantified at the time of calculation, it shall be assumed that they will remain at the initial level and will be applicable for the duration of the agreement;
c
where not all rates of interest are determined in the consumer credit agreement, a rate of interest shall be assumed to be fixed only for the partial periods for which the rate of interest is determined exclusively by a fixed specific percentage agreed when the agreement is made;
d
where the duration of the consumer credit agreement cannot be determined at the date of calculation and where different rates of interest and charges are to be offered for limited periods during that agreement, the rate of interest and the charge shall be assumed to be at the highest level for the duration of the agreement;
e
where there is a fixed rate of interest agreed in relation to an initial period under a consumer credit agreement, at the end of which a new rate of interest is determined and subsequently periodically adjusted according to an agreed indicator, it shall be assumed that, at the end of the period of the fixed rate of interest, the rate of interest is the same as at the time of making the calculation, based on the value of the agreed indicator at that time;
f
where the consumer credit agreement gives the debtor freedom of drawdown, the total amount of credit shall be assumed to be drawn down immediately and in full;
fa
where the consumer credit agreement imposes, amongst the different ways of drawdown, a limitation with regard to the amount of credit and period of time, the amount of credit shall be assumed to be the maximum amount provided for in the agreement and to be drawn down on the earliest date provided for in the agreement;
g
where the consumer credit agreement provides different ways of drawdown with different charges or rates of interest, the total amount of credit shall be assumed to be drawn down at the highest charge and rate of interest applied to the most common drawdown mechanism for the credit product to which the agreement relates;
h
for the purposes of paragraph (g), the most common drawdown mechanism for a particular credit product shall be assessed on the basis of the volume of transactions for that product in the preceding 12 months, or expected volumes in the case of a new credit product;
i
in the case of an overdraft facility, the total amount of credit shall be assumed to be drawn down in full and for the entire duration of the consumer credit agreement;
j
for the purposes of paragraph (i) if the duration of the overdraft facility is not known it shall be assumed that the duration of the facility is three months;
k
in the case of an open-end consumer credit agreement, other than an overdraft facility, it shall be assumed that the credit is provided for a period of one year starting from the date of the initial drawdown, and that the final payment made by the debtor clears the balance of capital, interest and other charges, if any;
l
for the purposes of paragraph (k) —
i
the capital is repaid by the debtor in equal monthly payments, commencing one month after the date of initial drawdown;
ii
in cases where the capital must be repaid in full, in a single payment, within or after each payment period, successive drawdowns and repayments of the entire capital by the debtor shall be assumed to occur over the period of one year;
iii
interest and other charges shall be applied in accordance with those drawdowns and repayments of capital and as provided for in the consumer credit agreement;
m
in the case of a consumer credit agreement, other than an overdraft facility, or an open-end consumer credit agreement —
i
where the date or amount of a repayment of capital to be made by the debtor cannot be ascertained, it shall be assumed that the repayment is made at the earliest date provided for under the consumer credit agreement and is for the lowest amount for which the consumer credit agreement provides;
ii
where it is not known on which date the consumer credit agreement is made, the date of the initial drawdown shall be assumed to be the date which results in the shortest interval between that date and the date of the first payment to be made by the debtor;
n
where the date or amount of a payment to be made by the debtor cannot be ascertained on the basis of the consumer credit agreement or the assumptions set out in paragraphs (i) to (m), it shall be assumed that the payment is made in accordance with the dates and conditions required by the creditor and, when these are unknown —
i
interest charges are paid together with repayments of capital;
ii
a non-interest charge expressed as a single sum is paid on the date of the making of the consumer credit agreement;
iii
non-interest charges expressed as several payments are paid at regular intervals, commencing with the date of the first repayment of capital, and if the amount of such payments is not known they shall be assumed to be equal amounts;
iv
the final payment clears the balance of capital, interest and other charges, if any;
o
in the case of an agreement for running-account credit, where the credit limit applicable to the credit is not yet known, that credit limit shall be assumed to be £1,200.
.
5
In paragraph 3(g) of the Schedule to the 2010 Regulations (calculation of the annual percentage rate of charge) for “l to n” substitute “l to k”.
Transitional provisions
6
1
Subject to paragraph (2), a person shall not be guilty of an offence under section 47(1) or 167 of the Act for contravention of these Regulations in respect of a credit advertisement that would have complied with the requirements of the 2010 Regulations had those Regulations not been amended by virtue of regulation 4 of these Regulations.
2
Paragraph (1) only applies to —
a
credit advertisements published in a catalogue, diary or work of reference comprising at least 50 printed pages —
i
copies of which are first published, or made available for publication in the ordinary course of business before 1st February 2013, and
ii
which, in a reasonably prominent position either contains the date of its first publication or specifies a period, being a calendar or seasonal period, throughout which it is intended to have effect;
b
other credit advertisements —
i
which are first published before 1st January 2013, and
ii
which cease to be published before 1st February 2013.
Review
7
1
Before the end of each review period, the Secretary of State must —
a
carry out a review of regulations 3 and 4,
b
set out the conclusions of the review in a report, and
c
lay the report before Parliament.
2
In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how the Annex to the EU Directive (which is implemented by means of regulations 3 and 4) has been implemented in other member States.
3
The report must in particular —
a
set out the objectives intended to be achieved by those regulations,
b
assess the extent to which those objectives are achieved, and
c
assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
4
“Review period” means —
a
the period of five years beginning with the day on which regulations 3 and 4 come into force, and
b
subject to paragraph (5), each successive period of five years.
5
If a report under this regulation is laid before Parliament before the last day of the review period to which it relates, the following review period is to begin with the day on which that report is laid.
Norman Lamb
Parliamentary Under Secretary of State for Employment Relations, Consumer and Postal Affairs
Department for Business, Innovation and Skills
5th July 2012 |
The Infrastructure Planning (Environmental Impact Assessment) (Amendment) Regulations 2012
The Secretary of State for Communities and Local Government, being a designated Minister for the purposes of section 2(2) of the European Communities Act 1972 in relation to the environment, in exercise of the powers conferred by that section, makes the following Regulations:
Citation and commencement
1
These Regulations may be cited as the Infrastructure Planning (Environmental Impact Assessment) (Amendment) Regulations 2012 and shall come into force on 13th April 2012.
Amendment of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009
2
The Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 are amended in accordance with the following regulations.
Amendment to regulation 3 – prohibition on granting consent without consideration of environmental information
3
For regulation 3(2) and (3), substitute —
2
Where this regulation applies, the Secretary of State or relevant authority (as the case may be) must not (in the case of the Secretary of State) make an order granting development consent or (in the case of the relevant authority) grant subsequent consent unless it has first taken the environmental information into consideration, and it must state in its decision that it has done so.
Amendment to regulation 5 – when development is EIA development: directions by the Secretary of State
4
For regulation 5(2)(b), substitute —
b
either —
i
of the Secretary of State’s own volition; or
ii
if requested to do so in writing by any person.
Amendment to regulation 6 – procedure for establishing whether environmental impact assessment is required
5
1
In regulation 6(2), for “must” substitute “may”.
2
After regulation 6(3)(b), insert “and”.
3
After regulation 6(4)(a), insert —
aa
an explanation of the likely effects on the environment which were not identified at the time the order granting development consent was made; and
.
4
In regulation 6(7), omit “to the effect that development is EIA development,”.
Amendment to regulation 8 – application for a scoping opinion
6
After regulation 8(4)(a), insert —
aa
an explanation of the likely effects on the environment which were not identified at the time the order granting development consent was made; and
.
Amendment to regulation 14 –certifying compliance with regulation 13
7
Omit regulation 14(2).
Amendment to regulation 16 – accepted application – effect of screening opinion not taking account of all relevant information
8
In regulation 16 —
a
in paragraph (5)(b)(vii), for “the date referred to” substitute “the deadline referred to”.
b
omit paragraph (7).
Amendment to regulation 17 – accepted application – effect of environmental statement being inadequate
9
In regulation 17 —
a
in paragraph (3)(b)(vii), for “the date referred to” substitute “the deadline referred to”.
b
omit paragraph (4).
Amendment to regulation 18 – subsequent application for EIA development
10
In regulation 18 —
a
in paragraph (3)(a)(vii), for “the date referred to” substitute “the deadline referred to”.
b
omit paragraph (4).
Substitution of regulation 19 – subsequent application not complying with EIA requirements
11
For regulation 19, substitute —
Subsequent application where environmental information previously provided
18A
1
This regulation applies where —
a
a relevant authority is dealing with a subsequent application;
b
the applicant has not notified the relevant authority in accordance with regulation 6(2)(b); and
c
the application is not accompanied by a statement referred to by the applicant as an updated environmental statement for the purposes of these Regulations.
2
Where it appears to the relevant authority that the environmental information already before it is adequate to assess the environmental effects of the development, it must take that information into consideration in its decision as to subsequent consent.
3
Where it appears to the relevant authority that the environmental information already before it is not adequate to assess the environmental effects of the development —
a
the relevant authority must issue a written statement giving clearly and precisely the full reasons for that conclusion;
b
the applicant must comply with the requirements of regulation 18(2); and
c
the relevant authority must suspend consideration of the application until the requirements of regulation 18(2) are complied with.
Subsequent application not complying with EIA requirements
19
1
This regulation applies where —
a
the relevant authority is dealing with a subsequent application;
b
the applicant has submitted a statement referred to by the applicant as an updated environmental statement for the purposes of these Regulations; and
c
the relevant authority is of the opinion that the statement should contain further information.
2
Where paragraph (1) applies, the relevant authority must —
a
issue a written statement giving clearly and precisely the full reasons for the conclusion in paragraph (1)(c); and
b
suspend consideration of the application until the requirements of paragraph (3) are met.
3
Where paragraph (1) applies, the applicant must —
a
provide the relevant authority with the further information;
b
publish (in accordance with sub–paragraph (c)) a notice which sets out the following information —
i
the name and address of the applicant;
ii
that the applicant is making an application for approval of a matter in pursuance of a requirement imposed by an order granting development consent for EIA development;
iii
the reference number of the order granting development consent;
iv
a summary of the main proposals, specifying the location or route of the proposed development;
v
that consideration of the application has been suspended until additional information required for the updated environmental statement has been provided and publicised;
vi
that the further information, the updated environmental statement and supporting documents are available for inspection free of charge at the places (including at least one address in the vicinity of the proposed development) and times set out in the notice;
vii
the latest date on which those documents will be available for inspection (being a date not earlier than the deadline referred to in sub–paragraph (x) below);
viii
whether a charge will be made for copies of any of those documents and the amount of any charge;
ix
details of how to respond to the publicity; and
x
a deadline for receipt of responses being not less than 28 days following the date when the notice is last published;
c
publish, post and serve the notice in the same manner as prescribed in regulation 17(3)(c) to (e);
d
serve on any person of whom the applicant has been notified under regulation 9(1)(c) a notice containing the information specified in sub–paragraph (b), except that the date specified as the latest date on which the documents will be available for inspection must not be less than 28 days following the date on which the notice is first served;
e
send to the consultation bodies the further information and a notice setting out the information specified in sub–paragraph (b)(i) to (v);
f
inform those bodies —
i
how and to whom they may make representations;
ii
of the deadline for making representations which must be not less than 28 days later than the last date on which the further information was sent in accordance with sub–paragraph (e); and
g
certify to the relevant authority in the form set out in certificate 5 in Schedule 5 that the applicant has complied with the requirements of sub–paragraphs (b) to (f).
Substitution of regulation 20 – availability of copies of environmental statements
12
For regulation 20, substitute —
20
An applicant who submits in connection with an application a statement which the applicant refers to as an environmental statement or an updated environmental statement must ensure that a reasonable number of copies of the statement are available at the address set out in the notices published or posted pursuant to these Regulations as the address at which copies may be obtained.
Amendment to Schedule 5 – certificates
13
In Certificate 5 —
a
for “regulation 19(5)(b) and (c)” substitute “regulation 19(3)(b) and (c)”; and
b
for “regulations 19(5)(e) and (f)” substitute “regulation 19(3)(e) and (f)”.
Signed on behalf of the Secretary of State for Communities and Local Government
Bob Neill
Parliamentary Under Secretary of State
Department for Communities and Local Government
12th March 2012 |
The Income Tax (Pay As You Earn) (Amendment No. 2) Regulations 2012
The Commissioners for Her Majesty’s Revenue and Customs make the following Regulations in exercise of the powers conferred by section 136 of the Finance Act 2002 and section 684 of the Income Tax (Earnings and Pensions) Act 2003 and now exercisable by them :
Citation, commencement and effect
1
1
These Regulations may be cited as the Income Tax (Pay As You Earn) (Amendment No. 2) Regulations 2012 and come into force on 9th August 2012.
2
These Regulations have effect in relation to relevant payments made on and after 1st September 2012.
3
In paragraph (2), “relevant payments” has the meaning given in regulation 4 of the Income Tax (Pay As You Earn) Regulations 2003 .
Amendment of the Income Tax (Pay As You Earn) Regulations 2003
2
The Income Tax (Pay As You Earn) Regulations 2003 are amended by the insertion after regulation 67C of the following —
Notifications of relevant payments to and by providers of certain electronic payment methods
67CA
1
A Real Time Information employer who makes a relevant payment using an approved method of electronic communications which falls to be included in a return under regulation 67B must —
a
generate a reference under paragraph (3) and include it in that return,
b
notify the service provider that the payment is a relevant payment, and
c
generate a sub-reference under paragraph (3) in respect of the relevant payment and notify the service provider of that sub-reference.
2
A service provider who receives a notification under paragraph (1)(b) must notify HMRC of the information it holds that is required for generating a reference under paragraph (3) in relation to the relevant payment.
3
A reference and sub-reference under this paragraph is to be generated using the method specified by the Commissioners for Her Majesty’s Revenue and Customs in a direction.
4
In paragraphs (1) and (2), “service provider” means the provider of the approved method of electronic communications using which the payment is made.
5
For the purposes of paragraphs (1) and (4), an “approved method of electronic communications” is any method of electronic communications which has been approved for the purposes of regulation 199 (large employers required to make specified payments electronically).
6
A direction under paragraph (3) may also —
a
specify circumstances in which paragraphs (1) and (2) are not to apply, and
b
specify the form and manner of the notifications required by paragraphs (1)(b) and (c) and (2).
.
Mike Eland
Dave Hartnett
Two of the Commissioners for Her Majesty’s Revenue and Customs
18th July 2012 |
The Port Security (Port of Tees and Hartlepool) Designation Order 2012
The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to port security, measures relating to the safety of ships and the health and safety of persons on them, and maritime transport .
Citation and commencement
1
This Order may be cited as the Port Security (Port of Tees and Hartlepool) Designation Order 2012 and comes into force on 19th November 2012.
Port boundary
2
1
For the purposes of regulation 3(2) of the Port Security Regulations 2009 the boundary of the Port of Tees and Hartlepool —
a
is shown on the landward side of the broken line on the key plan in Schedule 1 —
i
by the continuous red line on that plan; and
ii
as respects the areas known as Seal Sands Teesport, Port Clarence, Able Seaton, Bamflets Wharf, Simon Storage and Cochrane’s Wharf, is more particularly shown by red lines on the plans in that Schedule marked with the names of those places; and
b
on the seaward side follows the seaward limits of “the harbour” as defined by section 3 and Schedule 2 to the Tees and Hartlepools Port Authority Act 1966 .
2
Where the red line runs along a beach or foreshore, the boundary runs along the edge of the land on that beach or foreshore which is below the level of mean high water springs.
The Tees and Hartlepool Port Security Authority
3
1
For the purposes of the Port Security Regulations 2009, the Tees and Hartlepool Port Security Authority is designated as the port security authority for the port of Tees and Hartlepool.
2
Schedule 2 has effect with respect to the Tees and Hartlepool Port Security Authority.
Review
4
1
The Secretary of State must from time to time —
a
carry out a review of this Order,
b
set out the conclusions of the review in a report, and
c
publish the report.
2
In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how Directive 2005/65/ EC of the European Parliament and of the Council of 26th October 2005 (which is implemented by means of the Port Security Regulations 2009 ) is implemented in other member States.
3
The report must in particular —
a
set out the objectives intended to be achieved by the regulatory system established by those Regulations and this Order,
b
assess the extent to which those objectives are achieved, and
c
assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
4
The first report under this article must be published before 1st January 2014.
5
Reports under this article are afterwards to be published at intervals not exceeding five years.
Signed by authority of the Secretary of State for Transport
Stephen Hammond
Parliamentary Under Secretary of State
Department for Transport
15th October 2012
SCHEDULE 1
Boundary of the Port of Tees and Hartlepool
Article 2(1)
SIMON STORAGE
SCHEDULE 2
The Tees and Hartlepool Port Security Authority
Article 3(2)
Members
1
1
The Tees and Hartlepool Port Security Authority (in this Schedule called “the Authority”) is to consist of three or more members, each of them appointed by the Secretary of State.
2
Subject to the following provisions of this paragraph, each member of the Authority —
a
holds and vacates office in accordance with the terms of the member’s appointment; and
b
on ceasing to be a member is eligible for re-appointment.
3
A member of the Authority may resign the office of member by giving notice to that effect to the Secretary of State and will cease to hold office —
a
on the date specified for the purpose in the notice; or
b
if that date falls before the expiration of the period of 21 days beginning with the date on which the notice is served, on the date immediately following the expiration of that period.
4
The Secretary of State may give notice to a member to the effect that the member will cease to hold office on a date specified for the purpose in the notice.
5
A notice under subparagraph (4) may be given only in one or more of the following circumstances —
a
the member has failed to attend four or more consecutive meetings of the Authority without the permission of the Secretary of State;
b
the member has a financial interest and it appears to the Secretary of State that the interest is likely to influence or to be capable of being seen as influencing the performance of the member’s functions;
c
the member has been adjudged bankrupt, the member’s estate has been sequestrated or the member has made a composition with creditors or granted a trust deed for creditors;
d
there has been misconduct on the part of the member relevant to that individual’s position as a member of the Authority; or
e
the member is unable or unfit to perform the functions of the office.
6
It is the duty of every member of the Authority, so far as is reasonably practicable, to attend all meetings of the Authority.
7
If it be impracticable for a member to attend a meeting, the member must appoint another member to act as a proxy.
8
A proxy must speak and vote at the meeting on behalf of the absent member as that member may direct.
Proceedings of the Authority
2
1
The Authority must hold at least two meetings in any 12-month period.
2
Subject to the provisions of this Order, it is for the Authority to regulate its own procedure (including quorum).
3
The Authority must appoint one of its members as chair of the Authority.
4
The person appointed remains the chair of the Authority until that person —
a
is replaced as chair by another member; or
b
ceases to be a member of the Authority, in which case it becomes the duty of the Authority to appoint a new chair as soon as reasonably practicable.
5
The validity of any proceedings of the Authority is not affected by a vacancy amongst the members or by a defect in the appointment of a member.
6
Other than in exceptional circumstances which require a meeting of the Authority to be held at short notice, the Authority must give the Secretary of State at least three days clear notice of a meeting of the Authority together with a copy of the agenda for the meeting.
7
A representative of the Secretary of State may attend any meeting as an observer.
8
Minutes must be kept of the proceedings of the Authority.
9
The Authority must provide the Secretary of State with a copy of the minutes of a meeting before the end of the period of thirty days beginning with the day of the meeting.
Members’ interests
3
1
A member who has any pecuniary interest, direct or indirect, in any matter that is brought up for consideration at a meeting of the Authority (which expression in this paragraph includes any committee or subcommittee of the Authority) must disclose the nature of the interest to the meeting.
2
Where such a disclosure is made —
a
the disclosure must be recorded in the minutes of the meeting;
b
the member must not take any part in any deliberation or decision of the Authority with respect to that matter; and
c
the member may be excluded from the meeting whilst the matter is under consideration.
3
For the purposes of this paragraph, a general notification given at a meeting of the Authority by a member to the effect that the member —
a
is a member, director or employee of, or partner in, a specified company or firm, and
b
is to be regarded as interested in any matter involving that company or firm,
is a sufficient disclosure of the member’s interest in any such matter for the purposes of any meeting where the matter comes up for discussion.
4
A member need not attend in person at a meeting of the Authority in order to make a disclosure required to be made under this paragraph, provided that the member takes reasonable steps to secure that the disclosure is made by a notice which is read and considered at the meeting.
5
Subject to sub-paragraph (6), a member of the Authority is to be treated for the purposes of this paragraph as having an indirect pecuniary interest in a contract, proposed contract or other matter if —
a
the member, or a proxy of the member, is a director of a company or other body (not being a public body) with which the contract was made or is proposed to be made or which has a direct pecuniary interest in the other matter under consideration, or
b
the member is in partnership with, or is in the employment of, a person with whom the contract was made or is proposed to be made or who has a direct pecuniary interest in the other matter under consideration,
and in the case of two persons living together as a couple (whether married or not) an interest of one, if known to the other, is deemed for the purposes of this paragraph also to be an interest of the other.
6
A member is not to be treated as having a pecuniary interest in any contract, proposed contract or other matter by reason only —
a
of membership of a company or other body if the member has no beneficial interest in the securities of that company or other body; or
b
of an interest which is so remote or insignificant that it cannot reasonably be regarded as likely to influence the member in the consideration or discussion of, or voting on, any question with respect to that matter.
7
The Secretary of State may, subject to such conditions as appear to the Secretary of State to be appropriate, remove any prohibition imposed by virtue of this paragraph in any case where the prohibition is impeding or likely to impede the ability of the Authority to perform its functions under this Order or under the Port Security Regulations 2009.
8
The power of the Secretary of State under subparagraph (7) includes power to remove, either indefinitely or for any period, a prohibition which would otherwise attach to any member, or members of any description, by reason of such interests and in respect of such matters, as may be specified or described by the Secretary of State.
9
Nothing in this paragraph precludes any member from taking part in the consideration or discussion of, or voting on, any question whether an application should be made to the Secretary of State for the exercise of the power conferred by subparagraph (7).
10
Any person who fails to comply with the provisions of subparagraph (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.
11
A person shall not be convicted of an offence under subparagraph (10) if it is proved that that person did not know that the contract, proposed contract or other matter in which that person had a pecuniary interest was the subject of consideration at the meeting concerned.
The Crown
4
The Authority is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown and its property is not to be regarded as property of, or held on behalf of, the Crown. |
The Constitutional Reform and Governance Act 2010 (Commencement No. 7) Order 2012
The Secretary of State makes the following Order in exercise of the powers conferred by section 52(2) of the Constitutional Reform and Governance Act 2010 :
Citation and interpretation
1
1
This Order may be cited as the Constitutional Reform and Governance Act 2010 (Commencement No. 7) Order 2012.
2
In this Order, “the 2010 Act ” means the Constitutional Reform and Governance Act 2010.
Provisions of the 2010 Act coming into force on the day after the day on which this Order is made
2
The following provisions of the 2010 Act shall come into force on the day after the day on which this Order is made —
a
section 45(2) to (5) (transfer of records to Public Record Office); and
b
section 46(2) to (5) (freedom of information).
Provisions of the 2010 Act coming into force on 1st January 2013
3
1
The following provisions of the 2010 Act shall come into force on 1st January 2013 —
a
section 45(1), except for the purpose specified in paragraph (2); and
b
section 46(1) and Schedule 7 (amendments of Freedom of Information Act 2000), so far as they are not already in force.
2
The purpose referred to in paragraph (1)(a) is the transfer in accordance with section 3(4) of the Public Records Act 1958 of records of a description set out in the Schedule to this Order.
Tom McNally
Minister of State
Ministry of Justice
29th November 2012
SCHEDULE
Descriptions of Records
Article 3(2)
Records of a prison, remand centre, secure training centre or young offender institution.
Records of a coroner’s court.
Records of the Environment Agency, except board minutes or records which relate to the formulation or development of policy governing the work of the Environment Agency.
Records of a Family Practitioner Committee for localities in England.
Records of a Family Practitioner Committee for localities in Wales.
Records of the Forestry Commission, except board minutes or records which relate to the formulation or development of policy governing the work of the Forestry Commission.
Records of a health service hospital within the meaning of the National Health Service Act 1977 , in England.
Records of a health service hospital within the meaning of the National Health Service (Wales) Act 2006 .
Records of the Homes and Communities Agency that were formerly records of the Commission for New Towns or the Urban Regeneration Agency, except board minutes or records which relate to the formulation or development of policy governing the work of the Commission for New Towns or the Urban Regeneration Agency.
Records of a magistrates’ court.
Records of the Maritime and Coastguard Agency.
Records of a National Health Authority including a Primary Care Trust, a National Health Service trust and a NHS foundation trust other than local health authorities and Authorities for districts or localities in Wales, or for areas in or consisting of Wales including National Health Service trusts all of whose hospitals, establishments and facilities are situated in Wales.
Records of a National Health Authority for districts or localities in Wales, or for areas in or consisting of Wales, including National Health Service trusts all of whose hospitals, establishments and facilities are situated in Wales.
Records of Natural England, except board minutes or records which relate to the formulation or development of policy governing the work of Natural England.
Records of any Rent Tribunal or Local Valuation Court. |
The Social Security (Information-sharing in relation to Welfare Services etc.) Regulations 2012
In respect of provisions in these Regulations relating to housing benefit, the Secretary of State has consulted with organisations appearing to him to be representative of the authorities concerned .
PART 1 GENERAL
Citation and commencement
1
These Regulations may be cited as the Social Security (Information-sharing in relation to Welfare Services etc.) Regulations 2012 and come into force on 2nd July 2012.
Interpretation
2
In these Regulations —
“the 2012 Act ” means the Welfare Reform Act 2012;
“the benefit cap” means the benefit cap (if any) which is provided for in regulations under section 96 of the 2012 Act;
“the Contributions and Benefits Act ” means the Social Security Contributions and Benefits Act 1992 ;
“disabled person’s badge” means a badge issued under section 21 of the Chronically Sick and Disabled Persons Act 1970 (badges for display on motor vehicles used by disabled persons) ;
“housing benefit” means housing benefit under section 130 of the Contributions and Benefits Act;
“housing benefit claimant” means a person who has made a claim for or is in receipt of housing benefit;
“the Housing Benefit Regulations ” means the Housing Benefit Regulations 2006 ;
“the Housing Benefit (State Pension Credit) Regulations ” means the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 ;
“housing support services” means —
in England, non-statutory assistance;
in Wales, services provided under the supporting people programme in Wales;
in Scotland, services of a type falling within the Schedule to the Housing (Scotland) Act 2001 (Housing Support Services) Regulations 2002 ;
“landlord” includes a person to whom rent allowance is payable under the Housing Benefit Regulations or regulation 76 of the Housing Benefit (State Pension Credit) Regulations (circumstances in which payment is to be made to a landlord), as the case may require;
“non-statutory assistance” means assistance provided by a local authority in England, in the form of the funding, planning, monitoring or delivery of housing-related support services for the purpose of enabling people aged 16 or over to overcome barriers to participation in society by assisting such people to live more independently within their home or community, but does not include the grant of a tenancy or the provision of accommodation;
“regulations relating to under-occupation” means regulations (if any) that have been made under section 130A of the Contributions and Benefits Act which restrict, by reference to the number of bedrooms in relation to the number of people occupying the dwelling as their home, the amount of housing benefit available to housing benefit claimants whose landlord is a social landlord or local authority;
“rent” is to be construed in accordance with regulation 2(1) of the Housing Benefit Regulations or regulation 2(1) of the Housing Benefit (State Pension Credit) Regulations, as the case may require;
“residential care” means —
in England and Wales, the provision of accommodation together with nursing and personal care in a care home as defined in section 3 of the Care Standards Act 2000 ;
in Scotland, the provision of accommodation together with nursing, personal care or personal support by a care home service as defined in paragraph 2 of Schedule 12 to the Public Services Reform (Scotland) Act 2010 ;
“social landlord” means a landlord falling within regulation 13C(5)(a)(i), (ii) or (iii) of the Housing Benefit Regulations or regulation 13C(5)(a)(i), (ii) or (iii) of the Housing Benefit (State Pension Credit) Regulations , as the case may require;
“the supporting people programme in Wales” means the programme of assistance provided by local authorities in Wales, in the form of the funding, planning, monitoring or delivery of housing-related support services for the purpose of enabling people aged 16 or over to overcome barriers to participation in society by assisting such people to live more independently within their home or community, other than through the grant of a tenancy or the provision of accommodation;
“the troubled families programme” means the programme of assistance provided by local authorities in England, for the purpose of engaging with households who face multiple disadvantages (such as crime, worklessness, truancy and anti-social behaviour), in the form of the funding, planning, monitoring or delivery of support services which assist members of such households to obtain employment, education or training, improve school attendance, or address crime and anti-social behaviour.
PART 2 INFORMATION-SHARING IN RELATION TO PROVISION OF OVERNIGHT CARE ETC. UNDER SECTION 130 OF THE 2012 ACT
Prescribed information
3
1
The information prescribed under section 130(2)(c) of the 2012 Act (information held by a local authority) is —
a
whether a resident is meeting in full the cost of the provision to them of residential care and if so the date this commenced and the period over which the cost is intended to be met;
b
whether the local authority is funding or has funded in full or in part the cost of the provision to a resident of residential care and if so —
i
the date from which the funding commenced and the period covered or intended to be covered by it;
ii
the date when the funding stopped or is intended to stop;
iii
the enactment under which the funding is being or was provided;
iv
whether there exists any agreement enabling the local authority to recover the cost of the funding on the sale of the resident’s home and if so, whether that recovery has commenced or when it is intended to commence; and
v
whether the local authority has entered into a deferred payment agreement with the resident and if so the date this commenced and the period the agreement is intended to cover.
2
In this regulation —
a
“deferred payment agreement” has the meaning given in section 55(3) of the Health and Social Care Act 2001 or (in Scotland) section 6(2) of the Community Care and Health (Scotland) Act 2002 ;
b
“resident” means a recipient of residential care.
Prescribed benefits
4
The benefits prescribed under section 130(7)(d) of the 2012 Act are —
a
attendance allowance under section 64 of the Contributions and Benefits Act ;
b
disability living allowance under section 71 of the Contributions and Benefits Act
c
income-based jobseeker’s allowance within the meaning given in section 1(4) of the Jobseekers Act 1995 ;
d
income-related employment and support allowance payable in accordance with section 1(2)(b) of the Welfare Reform Act 2007 ;
e
income support under section 124 of the Contributions and Benefits Act ; and
f
state pension credit under section 1 of the State Pension Credit Act 2002 .
PART 3 INFORMATION-SHARING IN RELATION TO WELFARE SERVICES ETC. UNDER SECTIONS 131 TO 133 OF THE 2012 ACT
Supply of relevant information by the Secretary of State
5
1
The purposes prescribed under section 131(1) of the 2012 Act (purposes for which the Secretary of State or a person providing services to the Secretary of State may supply relevant information to a qualifying person) are —
a
determining a person’s eligibility or continued eligibility for a disabled person’s badge;
b
determining whether to make to any person any grant or payment listed in paragraph (2) and if so the amount of any such grant or payment;
c
determining whether a person applying for or receiving a welfare service listed in paragraph (3) is liable to contribute towards the cost of that service and if so the amount of that contribution; and
d
where the qualifying person is a local authority in England, identifying households eligible for support under the troubled families programme and providing appropriate types of advice, support and assistance to members of such households under that programme.
2
The grants and payments referred to in paragraph (1)(b) are —
a
a disability adaptation grant;
b
a disabled facilities grant;
c
a discretionary housing payment.
3
The welfare services referred to in paragraph (1)(c) are —
a
housing support services;
b
the provision of domiciliary care;
c
the provision of residential care.
4
In this regulation —
a
“disability adaptation grant” means a grant paid under Part 2 of the Housing (Scotland) Act 2006 to assist with the adaptation of a house for a disabled person to make it suitable for the accommodation, welfare or employment of that person;
b
“disabled facilities grant” means a grant paid under Chapter 1 of Part 1 of the Housing Grants, Construction and Regeneration Act 1996 ;
c
“discretionary housing payment” means a payment made pursuant to regulation 2(1) of the Discretionary Financial Assistance Regulations 2001 ;
d
“domiciliary care” means care or assistance of any description provided to an adult person by reason of their age, health or any disability, whether provided continuously or not and whether or not provided at a place where they live, but excludes care or assistance provided to a person in residential care.
Holding purposes
6
1
The purposes prescribed under section 131(3) of the 2012 Act as purposes for which relevant information must be held by a qualifying person in order for them to use or supply it as set out in that subsection, are any of the following —
a
determining a person’s eligibility or continued eligibility for a disabled person’s badge or for housing support services;
b
determining whether to make to any person any grant or payment listed in regulation 5(2) and if so the amount of any such grant or payment;
c
determining whether a person applying for or receiving a welfare service listed in regulation 5(3) is liable to contribute towards the cost of that service and if so the amount of that contribution;
d
where the qualifying person is a local authority in England, identifying households eligible for support under the troubled families programme and providing appropriate types of advice, support and assistance to members of such households under that programme;
e
discharging any functions under Part 7 of the Housing Act 1996 or (in Scotland) Part 2 of the Housing (Scotland) Act 1987 ;
f
determining whether a person is in receipt of housing benefit;
g
determining the size of a dwelling occupied by a housing benefit claimant and the number of persons occupying that dwelling as their home;
h
identifying housing benefit claimants who are or may be affected by regulations relating to under-occupation, and providing appropriate types of advice, support and assistance to such persons;
i
identifying housing benefit claimants who are or may be affected by the benefit cap, and providing appropriate types of advice, support and assistance to such persons;
j
determining the amount of housing benefit payable to a housing benefit claimant by reference to the local housing allowance;
k
determining whether a person is in receipt of council tax benefit under section 131 of the Contributions and Benefits Act ;
l
determining whether a housing benefit claimant is likely to have difficulty in managing their financial affairs;
m
determining the probability that a housing benefit claimant will pay their rent;
n
determining whether the landlord of a housing benefit claimant —
i
was to provide qualifying welfare services to that housing benefit claimant but has not done so, or
ii
is to provide qualifying welfare services to that housing benefit claimant but is unlikely to do so;
o
determining whether —
i
the landlord of a housing benefit claimant is a social landlord,
ii
a housing benefit claimant occupies as their home a dwelling which is exempt accommodation,
iii
the tenancy of a housing benefit claimant is an excluded tenancy,
iv
a housing benefit claimant occupies as their home a houseboat, caravan or mobile home, or
v
a housing benefit claimant resides in a hostel.
2
In this regulation —
a
“excluded tenancy” means a tenancy of a type falling within any of paragraphs 4 to 11 of Schedule 2 to the Housing Benefit Regulations or paragraphs 4 to 11 of Schedule 2 to the Housing Benefit (State Pension Credit) Regulations, as the case may require;
b
“exempt accommodation” has the meaning given in paragraph 4(10) of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 (transitional and savings provision);
c
“hostel” has the meaning given in regulation 2(1) of the Housing Benefit Regulations or regulation 2(1) of the Housing Benefit (State Pension Credit) Regulations, as the case may require;
d
“local housing allowance” means an allowance determined in accordance with paragraph 2 of Schedule 3B to the Rent Officers Order ;
e
“Rent Officers Order” means the Rent Officers (Housing Benefit Functions) Order 1997 or (in Scotland) the Rent Officers (Housing Benefit Functions) (Scotland) Order 1997 ;
Using purposes connected with welfare services and housing benefit
7
1
This regulation applies to relevant information held by a qualifying person for any purpose listed in regulation 6 except the purpose listed in regulation 6(d).
2
The purposes set out in paragraph (3) are prescribed —
a
under section 131(3)(a) of the 2012 Act as purposes for which the information may be used by that qualifying person; and
b
subject to regulation 11, under section 131(3)(b) of the 2012 Act as purposes for use in relation to which the information may be supplied by that qualifying person to another qualifying person.
3
The purposes are any purposes connected with —
a
the purposes referred to in regulation 6(a), (b), (c) or (e);
b
applying any of the following regulations —
i
regulation 13C(5) of the Housing Benefit Regulations (cases where a maximum rent (LHA) is not to be determined);
ii
regulation 96(3) or (3A) of the Housing Benefit Regulations (circumstances in which payment may be made to a landlord);
iii
regulation 13C(5) of the Housing Benefit (State Pension Credit) Regulations (cases where a maximum rent (LHA) is not to be determined);
iv
regulation 77(3) or (3A) of the Housing Benefit (State Pension Credit) Regulations (circumstances in which payment may be made to a landlord);
c
determining whether the qualifying person who uses the information or to whom it is supplied holds other relevant information about a housing benefit claimant for any purpose prescribed in regulation 6.
Using purposes connected with the troubled families programme
8
1
This regulation applies to relevant information held by a qualifying person which is a local authority in England for the purpose listed in regulation 6(d) or the purpose listed in regulation 6(i).
2
The purposes set out in paragraph (3) are prescribed —
a
under section 131(3)(a) of the 2012 Act as purposes for which the information may be used by that qualifying person; and
b
under section 131(3)(b) of the 2012 Act as purposes for use in relation to which the information may be supplied by that qualifying person to another qualifying person.
3
The purposes are any purposes connected with the troubled families programme.
4
This regulation permits relevant information to be supplied to another qualifying person only where that other qualifying person is also a local authority in England.
Using purposes connected with under-occupation and benefit cap
9
1
This regulation applies to relevant information held by a qualifying person for any purpose listed in regulation 6(f) to (i).
2
The purposes set out in paragraph (3) are prescribed —
a
under section 131(3)(a) of the 2012 Act as purposes for which the information may be used by that qualifying person; and
b
under section 131(3)(b) of the 2012 Act as purposes for use in relation to which the information may be supplied by that qualifying person to another qualifying person.
3
The purposes are any purposes connected with —
a
identifying housing benefit claimants who are or may be affected by regulations relating to under-occupation, and providing appropriate types of advice, support and assistance to such persons;
b
identifying housing benefit claimants who are or may be affected by the benefit cap, and providing appropriate types of advice, support and assistance to such persons.
Qualifying persons
10
1
For the purpose of regulation 6(f) to (i) and regulation 9, a social landlord is prescribed to be a qualifying person under section 131(11)(g) of the 2012 Act.
2
The provisions of section 132 of the 2012 Act (offence of unlawful disclosure) apply to social landlords and persons associated with them by reason of the person’s office or employment or otherwise.
Excepted matters
11
1
Regulation 7(2)(b) does not permit relevant information held by a Welsh body or a Scottish body for a purpose listed in regulation 6(a), (b), (c) or (e) to be supplied by that body to another qualifying person for use in relation to the same or any other such purpose.
2
This regulation does not apply if the information was supplied by, or is derived from information supplied to another person by, the Secretary of State or a person providing services to the Secretary of State or a person engaged in the administration of housing benefit.
Signed by authority of the Secretary of State for Work and Pensions
Steve Webb
Minister of State,
Department for Work and Pensions
8th June 2012 |
The NHS Bodies (Transfer of Trust Property) Order (No. 2) 2012
The Secretary of State for Health makes the following Order in exercise of the powers conferred by sections 213, 217(2) and 272(7) and (8) of the National Health Service Act 2006 , having regard to changes in the functions of NHS bodies other than NHS foundation trusts.
Citation, commencement and interpretation
1
1
This Order may be cited as the NHS Bodies (Transfer of Trust Property) Order (No. 2) 2012 and comes into force on 17th December 2012.
2
In this Order —
“the relevant new Trust” means in relation to any relevant old Trust listed in column 1 of the Schedule (which Schedule has effect), the body which is listed adjacent to it in column 2 of that Schedule;
“the relevant old Trust” means a body listed in column 1 of the Schedule;
“the trust property” means the property specified in a schedule of trust property prepared and agreed by the relevant old Trust and the relevant new Trust and signed on behalf of —
the relevant old Trust on the date specified in column 3 of the Schedule; and
the relevant new Trust on the date specified in column 4 of the Schedule.
Transfer of trust property
2
1
On the date that this Order comes into force the trust property, and any rights and liabilities arising from that property, shall be transferred from the relevant old Trust to the relevant new Trust.
2
Following the transfers in paragraph (1), any reference in any instrument relating to the trust property, to the trustees of the trust property or to the relevant old Trust shall be construed as a reference to the relevant new Trust, its property or its trustees (as appropriate).
Signed by authority of the Secretary of State for Health.
Earl Howe
Parliamentary Under-Secretary of State for Health,
Department of Health
1st November 2012
SCHEDULE
Article 1(2)
Relevant old Trust Relevant new Trust Date schedule signed by relevant old Trust Date schedule signed by relevant new Trust
Bolton Teaching Primary Care Trust Bolton NHS Foundation Trust 28th September 2012 26th September 2012 Hinchingbrooke Health Care National Health Service Trust Cambridgeshire and Peterborough NHS Foundation Trust 1st November 2012 28th September 2012 Northamptonshire Teaching Primary Care Trust Northampton General Hospital National Health Service Trust 23rd August 2012 23rd August 2012 North Yorkshire and York Primary Care Trust Leeds and York Partnership NHS Foundation Trust 10th September 2012 5th September 2012 |
The Local Digital Television Programme Services Order 2012
In accordance with section 244(9) of that Act a draft of this instrument has been laid before Parliament and approved by a resolution of each House of Parliament.
Citation and commencement
1
This Order may be cited as the Local Digital Television Programme Services Order 2012 and comes into force on the day after the day on which it is made.
Interpretation
2
In this Order —
“the 1996 Act” means the Broadcasting Act 1996 ;
“the 2003 Act” means the Communications Act 2003;
“digital programme service” has the meaning given in section 1(4) of the 1996 Act;
“local digital television programme service” has the meaning given by article 3.
Description of a local digital television programme service
3
1
A local digital television programme service is a digital programme service of the following description —
a
it is provided in digital form with a view to its being included in a television multiplex service; and
b
it falls within paragraphs (2) and (5).
2
A service falls within this paragraph if it is a service in relation to which all of the following conditions are satisfied —
a
it is intended for reception only within a particular area or locality;
b
its provision meets, or would meet, the needs of the area or locality where it is received;
c
its provision is or would be likely to broaden the range of television programmes available for viewing by persons living or working in that area or locality; and
d
its provision is or would be likely to increase the number and range of the programmes about that area or locality that are available for such viewing, or to increase the number of programmes made in that area or locality that would be so available.
3
A service is to be taken for the purposes of paragraph (2) to meet the needs of an area or locality if, and only if —
a
its provision brings social or economic benefits to that area or locality, or to different categories of persons living or working in that area or locality; or
b
it caters for the tastes, interests and needs of some or all of the different descriptions of persons living or working in the area or locality (including, in particular, tastes, interests and needs that are of special relevance in the light of the descriptions of persons who do so live and work).
4
In paragraphs (2) and (3) the references to persons living or working in an area or locality include a reference to persons undergoing education or training in that area or locality.
5
A service falls within this paragraph if it includes or would include a range of programmes which–
a
facilitate civic understanding and fair and well-informed debate through coverage of local news and current affairs;
b
reflect the lives and concerns of communities and cultural interests and traditions in that area or locality; and
c
include content that informs, educates and entertains and is not otherwise available through a digital television programme service which is available across the United Kingdom.
Application of broadcasting legislation
4
The provisions of Part 1 of the 1996 Act and Part 3 of the 2003 Act have effect in relation to a local digital television programme service with the modifications set out in the Schedule.
Jeremy Hunt
Secretary of State
Department for Culture, Media and Sport
13th February 2012
SCHEDULE
Modification of legislation in relation to local digital television programme services
Article 4
PART 1 Modifications of the 1996 Act
Introductory
1
This Part contains the modifications of Part 1 of the 1996 Act referred to in article 4.
Definitions and general
2
Section 1 has effect as if after subsection (4A) there were inserted —
4B
In this Part —
“local multiplex service” means a multiplex service for the broadcast of local digital television programme services, and
“local digital television programme service” has the meaning given by article 3 of the Local Digital Television Programme Services Order 2012.
.
3
Sections 7 to 9 and 12 have effect as if before “multiplex licence”, in each place it occurs, there were inserted “local”.
Local Multiplex Service Licence
4
Section 7 (multiplex licences) has effect as if–
a
in subsection (1), before “multiplex service”, there were inserted “local”,
b
in subsection (4), paragraphs (c) to (e) were omitted,
c
in that subsection, for paragraph (f) there were substituted–
f
the applicant’s proposals for supporting local digital television programme services,
, and
d
subsections (5) and (8)(a)(ii) (but not the “and” after it) were omitted.
5
Section 8 (award of multiplex licences) has effect as if–
a
in subsection (1), for “the development of digital television broadcasting in the United Kingdom otherwise than by satellite” there were substituted “local digital television programme services in the United Kingdom”,
b
in subsection (2), in paragraph (b), the words “and (d)” were omitted,
c
in that subsection, after paragraph (c), there were inserted “and” ,
d
in that subsection, for paragraph (d) there were substituted —
d
any proposals by the applicant for promoting local digital television programme services.
, and
e
subsections (2)(e) to (f) and (3) were omitted.
6
Section 9 (power to require two or more multiplex licences to be granted to one person) has effect as if subsection (3) (c) were omitted.
7
Section 12 (conditions attached to multiplex licence) has effect as if —
a
in subsection (1), in paragraph (b), “(c), (d), (e) or” were omitted,
b
in that subsection, the “and” at the end of paragraph (g) were omitted,
c
in that subsection, for paragraph (h) there were substituted —
h
that while the licence is in force the licence holder uses such portion of digital capacity on the multiplex as OFCOM may specify in the licence for such local digital television programme services as OFCOM may so specify,
i
that the licence holder carries such local digital television programme services at such places as are specified by OFCOM in the licence,
j
that the licence holder does not charge an amount for carrying a local digital television programme service specified by OFCOM in the licence which exceeds such sum as is sufficient to recover the net operating costs, that sum being determined by OFCOM in the event of dispute between the licence holder and the holder of the licence for the local digital television programme service,
k
that the licence holder co-operates, with persons notified to the licence holder by OFCOM, in order to facilitate the provision of local digital television programme services,
l
that the licence holder, if notified to do so by OFCOM, participates in or facilitates (as OFCOM sees fit) the formation of a legal entity which is intended to facilitate the provision of local digital television programme services,
m
that, subject to paragraph (n), the licence holder facilitates the objective of a provider of a local digital television programme service carried on the multiplex to increase the coverage area for that service set out in the technical plan submitted by the licence holder under section 7(4)(b), and
n
that any obligation imposed by virtue of paragraph (m) applies only if the provider of the local digital television programme service in question has undertaken to pay the costs reasonably incurred by the licence holder for increasing the coverage area beyond that set out in the technical plan and is not in breach of that undertaking.
,
d
for subsection (1A), there were substituted —
1A
In subsection (1)(j), “net operating costs”, in relation to a local digital television programme service, means the operating costs reasonably incurred by the licence holder for the broadcast of that service, so far as those costs are not met by funding made available to the licence holder by the BBC for the support of the provision of local digital television programme services.
, and
e
subsections (3), (4), (4A), (5) and (6) were omitted.
8
Section 16 (duration and renewal of multiplex licences) has effect as if —
a
for subsection (1) there were substituted —
1
A local multiplex licence (subject to the provisions of this Part) continues in force for the period specified by OFCOM in the licence, such period not to exceed twelve years.
, and
b
the remainder of that section were omitted.
Local digital television programme services
9
Part 1 has effect as if for section 18 there were substituted —
Licensing of local digital television programme services
18
1
Where OFCOM propose to grant a licence to provide a local digital television programme service they must publish, in such manner as they consider appropriate, a notice —
a
stating that they propose to grant such a licence and its likely duration,
b
specifying which digital capacity reserved by OFCOM will be reserved for local digital television programme services,
c
specifying the area or locality for which the service is to be provided and that only one licence will be granted in respect of each such area or locality,
d
inviting applications for the licence and specifying the closing date for such applications, and
e
specifying the fee payable on any application.
2
An application for a local digital television programme service licence must be in writing and accompanied by —
a
the fee specified pursuant to subsection (1)(e),
b
details of the local digital television programme service the applicant proposes to provide,
c
details of the timetable according to which the applicant proposes to begin providing the service,
d
a detailed explanation of how the character of the service, as proposed in the application, is to be maintained for the period for which the licence would be in force,
e
such information as OFCOM may reasonably require as to the applicant’s present and projected financial position during the period for which the licence would be in force, and
f
such other information as OFCOM may reasonably require for the purpose of considering the application.
3
At any time after receiving such an application and before determining it, OFCOM may require the applicant to furnish such additional information as they consider necessary for the purpose of considering the application.
4
Any information to be furnished to OFCOM under this section must, if they so require, be in such form or verified in such manner as they may specify.
5
Where an application for a local digital television programme service licence is made to OFCOM in accordance with the provisions of this section, they may grant the licence unless precluded from doing do by section 3(3)(a) or 5(1).
6
OFCOM must, in determining whether and to whom to grant a local digital television programme service licence have regard to the following factors —
a
the extent to which any proposed service–
i
meets, or would meet, the needs of the area or locality where it is received,
ii
would be likely to broaden the range of television programmes available for viewing by persons living or working in that area or locality, and
iii
would be likely to increase the number and range of the programmes about that area or locality that are available for such viewing and to increase the number of programmes made in that area or locality that would be so available, and
b
the ability of the applicant for the licence to maintain, throughout the period for which the licence would be in force, the proposed service.
7
A service shall be taken for the purposes of subsection (6)(a)(i) to meet the needs of an area or locality if, and only if —
a
its provision brings social or economic benefits to the area or locality, or to different categories of persons living or working in that area or locality, or
b
it caters for the tastes, interests and needs of some or all of the different descriptions of persons living or working in the area or locality (including, in particular, tastes, interests and needs that are of special relevance in the light of the descriptions of persons who do so live and work).
8
In subsections (6) and (7) the references to persons living or working in an area or locality include a reference to persons undergoing education or training in that area or locality.
10
Section 19 (duration and conditions of digital programme licence) has effect as if —
a
for subsection (1) there were substituted–
1
A local digital television programme service licence (subject to the provisions of this Part) continues in force until the earlier of —
a
the end of the period specified by OFCOM in the licence, being a period not exceeding twelve years, or
b
the time it is surrendered by its holder.
,
b
after subsection (3) there were inserted–
3A
A local digital television programme service licence must also include such conditions as appear to OFCOM to be appropriate for securing that —
a
the service is provided in the location specified by OFCOM,
b
charges on persons in respect of reception of the service in the United Kingdom are prohibited,
c
the character of the licensed service, as proposed by the licence holder when making the application, is maintained for the duration of the licence,
d
the service is at all times offered as available (subject to the need to agree terms) to be broadcast –
i
by means of the multiplex licensed for the carriage of a local digital television programme service in the location specified by OFCOM pursuant to section 12(1)(i), and
ii
in such technical format or in accordance with such technical instructions as OFCOM may specify,
e
the service does not contain any pornographic material (within the meaning of section 19A),
f
the service does not contain any advertising falling within section 19B,
g
the licence holder co-operates with holders of local digital television programme service licences and holders of local multiplex licences to facilitate the provision of local digital television programme services in the United Kingdom,
h
the licence holder, if notified to do so by OFCOM, participates in the formation of a legal entity which is intended to facilitate the provision of local digital television programme services,
i
the licence holder seeks (in co-operation with the legal entity mentioned in paragraph (h)) to measure the number of viewers of the service, and
j
the licence holder encourages the legal entity mentioned in paragraph (h) to apply for a local multiplex licence which OFCOM propose to grant under section 7(1) or to negotiate for a local multiplex licence which otherwise becomes available.
3B
Conditions included in a licence under subsection (3A)(c) may authorise OFCOM to consent to a departure from the character of the licensed service if they are satisfied —
a
that the departure would not substantially alter the character of the service,
b
that the departure would not unacceptably reduce, the number and range of the programmes about the area or locality for which the service is licensed,
c
that the departure would not unacceptably reduce, the number of programmes made in the area or locality for which the service is licensed, and
d
that the service would continue to meet the needs of the area or locality for which the service is licensed.
3C
Before deciding whether to consent to a departure from the character of a licensed service on any of the grounds specified in subsection (3B)(b) to (d) , OFCOM must publish a notice specifying —
a
the proposed departure, and
b
the period in which representations may be made to OFCOM about the proposal.
3D
That period must end later than 28 days after the publication of the notice.
3E
The notice must be published in such manner as appears to OFCOM to be appropriate for bringing it to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the departure.
3F
OFCOM —
a
are not required to publish a notice under this section, or
b
may specify in such a notice a period shorter than that required by subsection (3D),
if they consider that the publication of the notice, or allowing a longer period for representations, would result in a delay that would be likely prejudicially to affect the interests of the licence holder.
3G
OFCOM are not required under this section– —
a
to publish any matter that is confidential in accordance with subsections (3H) or (3I), or
b
to publish anything that it would not be reasonably practicable to publish without disclosing such a matter.
3H
A matter is confidential under this subsection if– —
a
it relates specifically to the affairs of a particular body, and
b
its publication would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.
3I
A matter is confidential under this subsection if —
a
it relates specifically to the private affairs of an individual, and
b
its publication would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.
.
11
Part 1 has effect as if after section 19 there were inserted —
Pornographic material
19A
1
For the purposes of section 19(3A)(e), material is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.
2
Where the material forms part of a series of images and that series is such as to be capable of providing a context for the material, the question whether the material is “pornographic” is to be determined by reference to —
a
the material itself, and
b
the context provided by the series of images.
3
So, for example, where —
a
the material forms an integral part of a narrative constituted by a series of images, and
b
having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal,
the material may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.
Prohibition of certain advertising content
19B
1
For the purposes of section 19(3A)(f), advertising falls within this section if it is —
a
of a duration of at least 3 minutes, and
b
for a chat service made available for purchase by means of a premium rate service.
2
In this section–
“chat service” means a service offering two-way communication in sound or vision (or both) between the purchaser and another individual;
“premium rate service” means a service falling within section 120(7) of the Communications Act 2003 .
Definitions applicable in Part 1
12
Section 39 (interpretation of Part 1) has effect as if after the definition of “licence” there were inserted —
“local digital television programme service” has the meaning given in section 1(4B) and “local digital television programme service licence” means a licence to provide such a service;
“local multiplex service” has the meaning given in section 1(4B) and “local multiplex licence” means a multiplex licence to provide such a service;
.
PART 2 Modifications of Part 3 of the 2003 Act
13
This Part contains the modifications of Part 3 of the 2003 Act referred to in Article 4.
14
Section 333 (party political broadcasts) has effect as if —
a
in subsection (1) after “licensed public service channel,” there were added “every local digital television programme service”, and
b
in subsection (6), after the definition of “designated organisation”, there were inserted —
“local digital television programme service” has the meaning given in article 3 of the Local Digital Television Programme Services Order 2012;
. |
The Dover Harbour Revision Order 2012
The Secretary of State, in exercise of the powers conferred by that section and now vested in her , makes the following Order: —
PART 1 PRELIMINARY
Citation and commencement
1
1
This Order may be cited as the Dover Harbour Revision Order 2012 and shall come into force on 16th March 2012.
2
The Dover Harbour Acts and Orders 1954 to 2006 and this Order may be cited together as the Dover Harbour Acts and Orders 1954 to 2012.
Interpretation
2
1
In this Order —
“the 1954 Act ” means the Dover Harbour Consolidation Act 1954 ;
“ the Board ” means the Dover Harbour Board;
“deposited plans, sections and elevations” means the plans, sections and elevations which are bound together and signed in duplicate by the Deputy Director, Maritime Commerce and Infrastructure in the Department for Transport with reference to this Order and marked “The Dover Harbour Revision Order 2012 Plans, Sections and Elevations” of which one copy is deposited at the offices of the Secretary of State for Transport and one copy is deposited at the office of the Board and a reference to a numbered sheet is a reference to that numbered sheet bound in the deposited plans, sections and elevations;
“harbour” means Dover Harbour and has the meaning assigned to it by section 4 of the 1954 Act;
“land” includes land covered by water, any interest in land and any right in, to or over land;
“level of high water” means the level of mean high-water springs;
“limits of deviation” means the limits of deviation shown on the deposited plans;
“tidal work” means so much of any work authorised by this Order as in on, under or over tidal waters or tidal lands below the level of high water;
“Trinity House” means the Corporation of Trinity House of Deptford Strond;
“the undertaking” has the meaning given by section 4 of the 1954 Act;
“works” means the works authorised by article 4 (power to construct works) of this Order.
2
All points, directions lengths, areas and other measurements stated in this Order (other than the limits of deviation) shall be construed as if the words “or thereabouts” were inserted after each such point, direction, length, area or other measurement.
3
Reference points specified in this Order shall be construed as references to Ordnance Survey National Grid reference points.
Limits of harbour
3
The limits of the harbour shall be the area of land the limits of which are shown edged by a red line on sheet number 26 and, accordingly, there shall be substituted for the definition of “the harbour” in section 4 of the 1954 Act, the following definition —
“the harbour” means Dover Harbour the limits of which are shown edged by a red line on sheet number 26 of the deposited plans being the deposited plans defined as such by article 2 of the Dover Harbour Revision Order 2012.
PART 2 WORKS PROVISIONS
Power to construct works
4
1
Subject to the provisions of this Order, the Board may in the lines and situations and upon the lands delineated on the deposited plans, sections and elevations and within the limits of deviation and according to the levels shown on the deposited plans, sections and elevations, construct and maintain the following works with all necessary connected works and conveniences —
Work No. 1 ─ A retaining wall to be constructed across the Wick Channel commencing at a point on the South Pier at TR3210840351from there proceeding in a straight line and terminating at a point on the North Pier at TR3222540347 and the infilling and reclamation of so much of the Wick Channel and Tidal Basin as lies behind that wall together with the infilling and reclamation of Granville Dock comprising in part, the site of Works Nos. 12, 18(A), 20, 21, 23, 24, 25, 26, 27, 28, 29, 30 and 31 and as to the remainder as hardstanding for the parking and marshalling of vehicles, the location of which is shown on sheet no. 2 and sections of which are shown on sheet no. 11.
Work No. 2 ─ A retaining wall to be constructed across the Hoverport apron commencing at a point on the North Pier at TR3224240362 from there proceeding in a straight line and terminating at a point on the Prince of Wales Pier at TR3232840489 and the raising and levelling of so much of the Hoverport apron as lies behind that wall comprising in part, the site of Work No. 10, 11 and 32 and as to remainder as hardstanding for the parking and marshalling of vehicles, the location of which is shown on sheet no. 2 and sections of which are shown on sheet no. 11.
Work No. 3 ─ A quay wall faced in part with wave attenuation materials extending into the bed of the Outer Harbour and incorporating part of the Prince of Wales Pier and enclosing an area of 4.5 hectares of the bed of the Outer Harbour commencing at a point on the foreshore of the Outer Harbour at TR3193540822, extending for a distance of 890 metres and terminating at a point on the Prince of Wales Pier at TR3257140336; the enclosed area comprising in part, the site of Works Nos. 7, 8, 9, 11 18(A) and 32 and as to the remainder as hardstanding for the parking and marshalling of vehicles, the location of which is shown on sheet no. 3 and sections of which are shown on sheet no. 12.
Work No. 4 ─ A pier partly of solid construction commencing by a junction with Work No. 3 at a point on that work at TR3240340590 extending for a distance of 330 metres in a north easterly direction into the Outer Harbour and terminating at a point at TR3268340766; comprising in part, the site of Works Nos. 38, 39 and 40; to be used on the south eastern side as a berth for ferry vessels and on the north western side in part as berths for tugs, dredgers and other large work boats and as to the remainder as a fuel berth for vessels comprising piled moorings with a pontoon system connected to that side of the proposed pier by a link bridge, the location of which is shown on sheet no. 3 and the section of which is shown on sheet no. 13.
Work No. 4A ─ A pier partly of solid construction forming a spur off Work No. 4 commencing at a point on that work at TR3264840745 extending for a distance of 110 metres in a north westerly direction into the Outer Harbour and terminating at a point at TR3258940835 comprising in part, the site of Work No. 38; and including the relocation and reconstruction on the north west end of the proposed pier of the lighthouse from the east end of the Prince of Wales Pier, the location of which is shown on sheet no. 3 and the section of which is shown on sheet no. 13.
Work No. 5 ─ A pier partly of solid construction commencing by a junction with Work No. 3 at a point on that work at TR3254540471 extending for a distance of 320 metres in a north easterly direction into the Outer Harbour and terminating at a point at TR3281240644, the location of which is shown on sheet no. 3 and the section of which is shown on sheet no. 13.
Work No. 6 ─ The provision of sheet piled toe protection and abutments to support fenders on the south side of part of the Prince of Wales Pier and an elevated concrete deck (partly supported on those abutments) over part of the Prince of Wales Pier commencing at a point on the Prince of Wales Pier at TR3238540454 and extending for a distance of 290 metres along that pier and terminating at a point at TR3262240293; and the provision of a new roundhead at the eastern end of the remaining part of the Prince of Wales Pier, the location of which is shown on sheet no. 3 and the section of which is shown on sheet no. 13.
Work No. 7 ─ Mechanically and hydraulically operated double deck bridgeworks with a stair and lift tower and elevated passenger walkway together with a series of dolphins forming a berthing and mooring line to provide access to and egress from vessels commencing at a point on Work No. 3 at TR3242640567 extending for a distance of 113 metres in a north easterly direction into the Outer Harbour and terminating at a point at TR3251940628, the location of which is shown on sheet no. 3 and the section of which is shown on sheet no. 14.
Work No. 8 ─ Mechanically and hydraulically operated double deck bridgeworks with a stair and lift tower and elevated passenger walkway together with a series of dolphins forming a berthing and mooring line to provide access to and egress from vessels commencing at a point on Work No. 3 at TR3252040487 extending for a distance of 117 metres in a north easterly direction into the Outer Harbour and terminating at a point at TR3261840551, the location of which is shown on sheet no. 3 and the section of which is shown on sheet no. 14.
Work No. 9 ─ Mechanically and hydraulically operated double deck bridgeworks with a stair and lift tower and elevated passenger walkway together with a series of dolphins forming a berthing and mooring line to provide access to and egress from vessels commencing at a point on Work No. 3 at TR3255040441 extending for a distance of 117 metres in a north easterly direction into the Outer Harbour and terminating at a point at TR3264840505, the location of which is shown on sheet no. 3 and the section of which is shown on sheet no. 14.
Work No. 10 ─ Mechanically and hydraulically operated double deck bridgeworks with a stair and lift tower and elevated passenger walkway together with a series of dolphins forming a berthing and mooring line to provide access to and egress from vessels commencing at a point on Work No. 2 at TR3231040478 extending for a distance of 125 metres in a south easterly direction into the Inner Harbour and terminating at a point at TR3241440407, the location of which is shown on sheet no. 3 and the section of which is shown on sheet nos. 14.
Work No. 11 ─ An elevated four lane road to be constructed on land forming part of the sites of Work Nos. 2 and 3 to provide egress from Work No. 3 commencing at a point on Work No. 2 at TR3221540396 and terminating at a point on Work No. 3 at TR3252140428, the location of which is shown on sheet no. 4 and sections of which are shown on sheet no. 15.
Work No. 12 ─ An elevated four lane road to be constructed on land forming part of the site of Work No. 1 to provide access to and egress from that Work commencing at a point at TR3176440508 and terminating at a point at TR3191740567, the location of which is shown on sheet no. 4 and sections of which are shown on sheet no. 16.
Work No. 13 ─ A marina comprising-
a pier of solid construction commencing on the foreshore of the Outer Harbour at a point at TR3195340856, extending for a distance of 532 metres in an easterly direction into the Outer Harbour and terminating at a point at TR3246440709 to be used in part as the site of Works Nos. 35, 36, and 37 and including the relocation and reconstruction on the western end of the pier of the Clock Tower and Clock Tower Building following the removal of that tower and building from the west end of the Prince of Wales Pier, the location of which is shown on sheet no. 5 and the section of which is shown on sheet no. 17; and
piled moorings with a pontoon system connected to the south face of that pier by a series of link bridges.
Work No. 14 ─ A retaining wall to be constructed at the Union Street end of the Wellington Dock commencing at a point on Commercial Quay at TR3186540850 from there proceeding in a straight line and terminating at a point on Esplanade Quay at TR3197840817 and the infilling and reclamation of the small portion of the Wellington Dock that lies behind that wall to be used as roadways for vehicles and footpaths for pedestrians, the location of which is shown on sheet no. 5 and section of which is shown on sheet no. 17.
Work No. 15 ─ A retaining wall commencing on the Spur Pier at a point at TR3212940270 from there extending in a straight line to a point at TR3211240282 from there extending in a straight line to a point at TR3211840290 from there extending in a straight line to a point at TR3209540306 and from there extending in a straight line and terminating at a point on the Dunkirk Jetty at TR3209440312 and the infilling and reclamation of so much of the Spur Pier Basin as lies behind that wall to provide hardstanding for a boatyard and the provision of an enclosed area of water with a boat hoist, the location of which is shown on sheet no. 2 and sections of which are shown on sheet no. 17.
Work No. 16 ─ A channel to be used by vessels navigating to and from the Wellington Dock commencing at a point on Esplanade Quay at TR3172140852 from there proceeding in a straight line and terminating at a point on the foreshore of the Outer Harbour at TR3184440815 having lock gates and an opening bridge over the channel, the location of which is shown on sheet no. 5 and the sections of which are shown on sheet no. 18.
Work No. 17 ─ An extension of solid construction of the Admiralty Pier commencing at a point at the eastern end of that pier at TR3303339948 and extending for a distance of 105 metres in an easterly direction and terminating at a point at TR3313839947 including the relocation and reconstruction on the east end of the proposed extension of the lighthouse following the removal of that lighthouse from the east end of the Admiralty Pier, the location of which is shown on sheet no. 6 and the section of which is shown on sheet no. 18.
Work No. 18 ─ Security fences comprising-
a fence to comply with TRANSEC requirements, intercepted by Works Nos. 11, 12, 23, 32 and 38, having a height not exceeding 3.25m to be constructed along the lines shown on sheet no. 7, and an elevation of which is shown on sheet no. 19, and
a fence (intercepted by a building comprising Work No.23) having a height not exceeding 2.75m to be constructed along the lines shown on sheet no. 8, and an elevation of which is shown on sheet no. 19.
Work No. 19 ─ The removal of the Prince of Wales roundabout and the construction in its place of an at grade signalised junction between Union Street, the A20 Snargate Street and the A20 Limekiln Street, the location of which is shown on sheet no. 9.
Work No. 20 ─ Six single storey buildings with a canopy over to be used for outbound border control and security checks, the location of which is shown on sheet no. 10 and the plan and elevations of which are shown on sheet no. 19.
Work No. 21 ─ A single storey building to be used for security checks of tourist vehicles and passengers, the location of which is shown on sheet no. 10 and the plan and elevations of which are shown on sheet no. 20.
Work No. 22 ─ A single storey building to be used for security checks of freight vehicles and occupants, the location of which is shown on sheet no. 10 and the plan and elevations of which are shown on sheet no. 20.
Work No. 23 ─ Seven single storey buildings with a canopy over to be used for security checks of outbound freight and tourist vehicles and bicycles, the location of which is shown on sheet no. 10 and the plan and elevations of which are shown on sheet no. 21.
Work No. 24 ─ A single storey building to be used as a drivers’ reception facility, the location of which is shown on sheet no. 10 and the plans and elevations of which are shown on sheet no. 20.
Work No. 25 ─ A single storey building to be used for border control and security checks of tourist vehicles, the location of which is shown on sheet no. 10 and the plan and elevations of which are shown on sheet no. 20.
Work No. 26─ A single storey building to be used for border control and security checks of coach passengers, the location of which is shown on sheet no. 10 and the plan and elevations of which are shown on sheet no. 21.
Work No. 27 ─ A single storey building to be used for border control and security checks of tourist vehicles, the location of which is shown on sheet no. 10 and the plan and elevations of which are shown on sheet no. 22.
Work No. 28 ─ A single storey building to be used for border control and security checks of freight vehicles, the location of which is shown on sheet no. 10 and the plan and elevations of which are shown on sheet no. 20.
Work No. 29 ─ A single storey building to be used for border control and security checks of freight vehicles, the location of which is shown on sheet no. 10 and the plan and elevations of which are shown on sheet no. 21.
Work No. 30 ─ A single storey building to be used for scanning vehicles, the location of which is shown on sheet no. 10 and the plan and elevations of which are shown on sheet no. 22.
Work No. 31 ─ A single storey building for border control and security checks including the offloading of freight vehicles, the location of which is shown on sheet no. 10 and the plan and elevations of which are shown on sheet no. 23.
Work No. 32 ─ A double storey terminal building to be used for passenger and baggage handling, management offices and for the provision of retail, refreshments and toilet facilities for passengers and other members of the public, the location of which is shown on sheet no. 10 and the plan and elevations of which are shown on sheet no. 23.
Work No. 33 ─ A single storey building to be used for the customs clearance of goods, the location of which is shown on sheet no.10 and the plan and elevations of which are shown on sheet no. 24.
Work No. 34 ─ A two storey building to be used as the machinery house and control room for the operation of the lock gates and opening bridge forming part of Work No. 16, the location of that building is shown on sheet no. 10 and the plan and elevations of which are shown on sheet no. 24.
Work No. 35 ─ A two storey building comprising a marina office, facilities for the users of the proposed marina (Work No. 13) and the general public to be constructed on the proposed pier comprising Work No. 13(A), the location of which is shown on sheet no. 5 and the plan and elevations of which are shown on sheet no. 24.
Work No. 36 ─ A two storey building comprising retail, refreshment and toilet facilities for members of the general public to be constructed on the proposed pier comprising Work No. 13(A), the location of which is shown on sheet no. 5 and the plan and elevations of which are shown on sheet no. 25.
Work No. 37 ─ A two storey building comprising facilities for use as a lifeboat station to be constructed on the proposed pier comprising Work No. 13(A), the location of which is shown on sheet no.5 and the plan and elevations of which are shown on sheet no.25.
Work No. 38 ─ A two storey building comprising a workshop, offices and stores to be constructed on the parts of the proposed piers comprising Works Nos. 4 and 4(A), the location of which is shown on sheet no.3 and the plan and elevations of which are shown on sheet no.25.
Work No. 39 ─ A single storey building to be used as an office and pump house to be constructed on the proposed pier comprising Work No. 4, the location of which is shown on sheet no. 3 and the plan and elevations of which are shown on sheet no. 25.
Work No. 40 – A two storey building and lifeboat davit to be used as a safety training facility to be constructed on the proposed pier comprising Work No. 4, the location of which is shown on sheet no. 3 and the plan and elevations of which are shown on sheet no. 25.
Work No. 41─ The removal of the existing York Street roundabout and the construction in its place of an at grade signalised junction between the A256 York Street, the A20 Townwall Street and the A20 Snargate Street, the location of which is shown on sheet no. 9.
2
Subject to the provisions of this Order, the Board may, for the purposes of the works authorised by paragraph (1), demolish and remove any structures or apparatus and level any surface lying within the limits of deviation (including, and without prejudice to the generality of the foregoing, so much of the Prince of Wales Pier as may be deemed necessary or convenient) and enclose and reclaim so much of the bed of the harbour and of the foreshore as lies within the limits of deviation and may hold and use the same as part of the undertaking.
3
Subject to the provisions of this Order, the Board may, within the limits of deviation, reconstruct, extend, enlarge, replace or relay the works and may maintain those works as so reconstructed, extended, enlarged, replaced or relaid.
Power to deviate
5
1
Subject to the provisions of this Order, in carrying out the works, other than Work Nos. 18(A) and 18(B), the Board may deviate laterally from the lines or situations as shown on the deposited plans, sections and elevations to any extent not exceeding the limits of deviation and may deviate vertically from the levels of the works as shown on the deposited plans, sections and elevations to any extent not exceeding 3 metres upwards and to such extent downwards as may be found necessary or convenient.
2
In carrying out Work Nos. 18(A) and 18(B), the Board may deviate vertically up to 0.5 metres above the height specified in article 4 (power to construct works) and laterally from the lines or situations shown on the deposited plans, sections and elevations to any extent not exceeding 10 metres in any direction.
Subsidiary works
6
1
The Board may from time to time within the limits of deviation provide and operate such dock facilities, together with works ancillary to those facilities, as may be necessary or convenient for the construction of the works or the operation of the undertaking, and for this purpose the Board may construct and maintain roads, buildings, sheds, offices, workshops, depots, walls, foundations, fences, gates, tanks, pumps, conduits, pipes, drains, wires, mains, cables, electrical substations, signals, conveyors, cranes, lifts, hoists, lighting columns, weighbridges, stairs, ladders, stages, platforms, dolphins, mooring posts, pontoons, catwalks, equipment, signage, machinery and appliances and such other works and conveniences (including levelling of surfaces) as may be necessary or expedient.
2
Without prejudice to paragraph (1) the Board may within the limits of deviation carry out and maintain such other works as may be necessary or convenient for the purposes of, or in connection with or in consequence of, the construction, maintenance or use of the works including —
a
works for the accommodation or convenience of vessels or for the loading and unloading of goods and the embarking and loading of passengers; and
b
works to alter the position of apparatus, including mains, sewers, drains, pipes, conduits, cables, electrical substations and electrical lines.
Period for completion of works
7
1
Subject to paragraph (2), if the works are not completed within ten years from the coming into force of this Order or such extended time as the Secretary of State may on the application of the Board allow, then on the expiration of that period or such extended time (as the case may be) the powers granted by this Order to the Board for making and maintaining the works shall cease except as to so much of them as is then substantially commenced.
2
Nothing in paragraph (1) shall apply to any works carried out under paragraph (3) of article 4 (power to construct works) or article 6 (subsidiary works).
Operational land for purposes of the Town and Country Planning Act 1990
8
The planning permission granted by article 3 of the Town and Country Planning (General Permitted Development) Order 1995 for the development authorised by this Order shall be treated as specific planning permission for the purposes of section 264(3)(a) of the Town and Country Planning Act 1990 (cases in which land is to be treated as operational land for the purposes of that Act).
Obstruction of work
9
Any person who —
a
intentionally obstructs any person acting under the authority of the Board in setting out the lines of or in constructing the works; or
b
without reasonable excuse interferes with, moves or removes any pole, stake, station point or bench mark established for the purpose of such setting out,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Tidal works not to be executed without approval of Secretary of State
10
1
Unless its construction has commenced within ten years of the coming into force of this Order, a tidal work shall not be demolished, constructed, reconstructed, extended, enlarged, replaced or relaid except in accordance with plans and sections approved by the Secretary of State and subject to any conditions and restrictions imposed by the Secretary of State before the work is begun.
2
If a tidal work is constructed, reconstructed, extended, enlarged, replaced or relaid in contravention of this article or of any condition or restriction imposed under this article —
a
the Secretary of State may by notice in writing require the Board at their own expense to remove the tidal work or any part of it and restore the site to its former condition; and if on the expiration of 30 days from the date when the notice is served upon the Board they have failed to take reasonable steps to comply with the requirements of the notice, the Secretary of State may execute the works specified in the notice; or
b
if it appears to the Secretary of State urgently necessary to do so, the Secretary of State may remove the tidal work, or part of it, and restore the site to its former condition;
and any expenditure incurred by the Secretary of State in so doing shall be recoverable from the Board.
Lights on tidal works during construction
11
1
The Board shall at or near a tidal work during the whole time of the demolition, construction, reconstruction, extension, enlargement, replacement or relaying thereof, exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to navigation as the Secretary of State shall from time to time direct.
2
If the Board fail to comply in any respect with any direction given under this article, they shall be guilty of an offence and liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine.
Permanent lights on tidal works
12
1
After the completion of a tidal work the Board shall at the outer extremity of that work exhibit every night from sunset to sunrise such lights, if any, and take such other steps, if any, for the prevention of danger to navigation as Trinity House shall from time to time direct.
2
If the Board fail to comply in any respect with a direction given under this article they shall be guilty of an offence and liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine.
Provision against danger to navigation
13
1
In case of injury to or destruction or decay of a tidal work or any part of it the Board shall as soon as reasonably practicable notify Trinity House and shall lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as Trinity House shall from time to time direct.
2
If the Board fail to comply in any respect with the provisions of this article they shall be guilty of an offence and liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine.
Survey of tidal works
14
If the Secretary of State deems it expedient to do so, the Secretary of State may order a survey and examination of a tidal work or of the site upon which it is proposed to construct the work, and any expenditure incurred by the Secretary of State in such a survey and examination shall be recoverable from the Board.
Abatement of works abandoned or decayed
15
1
Where a tidal work is abandoned, or has fallen into decay, the Secretary of State may by notice in writing require the Board at their own expense either to repair and restore the work or any part of it, or to remove the work and restore the site of the tidal works to its former condition, to such an extent and within such limits as the Secretary of State thinks proper.
2
Where a work consisting partly of a tidal work and partly of works on or over land above the level of high water is abandoned or has fallen into decay and that part of the work on or over land above the level of high water is in such condition as to interfere or to cause reasonable apprehension that it may interfere with the right of navigation or other public rights over the foreshore, the Secretary of State may include that part of the work, or any portion of it, in any notice under this article.
3
If, on the expiration of 30 days from the date when a notice under this article is served upon the Board, they have failed to comply with the requirements of the notice, the Secretary of State may execute the works specified in the notice and any expenditure incurred by the Secretary of State in so doing shall be recoverable from the Board as a debt.
PART 3 MISCELLANEOUS AND GENERAL
Defence to proceedings in respect of statutory nuisance
16
1
Where proceedings are brought under section 82(1) of the Environmental Protection Act 1990 (summary proceedings by person aggrieved by statutory nuisance) in relation to a nuisance falling within paragraph (g) of section 79(1) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance) no order shall be made, and no fine may be imposed, under section 82(2) of that Act if the defendant shows —
a
that the nuisance relates to premises used by the Board for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to the construction or maintenance of the work; and
b
that the nuisance is attributable to the carrying out of works which are being carried out in accordance with a notice served under section 60 (control of noise on construction site), or a consent given under section 61 (prior consent for work on construction site) or 65 (noise exceeding registered level), of the Control of Pollution Act 1974 ; or
c
that the nuisance is a consequence of the construction, maintenance or use of the work and that it cannot reasonably be avoided.
2
The following provisions of the Control of Pollution Act 1974, namely —
a
section 61(9) (consent for work on construction site to include statement that it does not of itself constitute a defence to proceedings under section 82 of the Environmental Protection Act 1990); and
b
section 65(8) (corresponding provision in relation to consent for registered noise level to be exceeded);
shall not apply where the consent relates to the use of premises by the Board for the purposes of or in connection with the exercise of the powers conferred by this Order with respect to the construction or maintenance of the work.
Defence of due diligence
17
1
In proceedings for an offence under any provision of this Order mentioned in paragraph (2) it shall be a defence for the Board to prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence.
2
The provisions referred to in paragraph (1) are —
article 11 (lights on tidal works during construction);
article 12 (permanent lights on tidal works); and
article 13 (provision against danger to navigation).
3
If in any case the defence provided by paragraph (1) involves the allegation that the commission of the offence was due to the act or default of another person, the Board shall not, without leave of the court, be entitled to rely on that defence unless, within a period of seven clear days before the hearing, they have served on the prosecutor a notice in writing giving such information identifying, or assisting in the identification of, that other person as was then in their possession.
Saving for Trinity House
18
Nothing in this Order shall prejudice or derogate from any of the rights, duties or privileges of Trinity House.
Crown rights
19
1
Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown and, in particular, nothing in this Order authorises the Board to take, use, enter upon or in any manner interfere with, any land, hereditaments, or rights of whatsoever description (including any part of the shore or bed of the sea or any river, channel, creek, bay or estuary) —
a
belonging to Her Majesty in right of Her Crown and forming part of the Crown Estate, without the consent in writing of the Crown Estate Commissioners;
b
belonging to Her Majesty in right of the Crown and not forming part of the Crown Estate without the consent in writing of the government department having the management of that land; or
c
belonging to a government department, or held in trust for Her Majesty for the purposes of a government department, without the consent in writing of that government department.
2
A consent under paragraph (1) may be given unconditionally or subject to terms and conditions and shall be deemed to have been given in writing where it is sent electronically.
Saving for other consents, etc.
20
The carrying out of any works or operations pursuant to this Order is subject to the Board obtaining any consent, permission or licence required under any other enactment.
For protection of Secretary of State for Transport
21
The provisions of the Schedule to this Order shall have effect.
Signed by authority of the Secretary of State for Transport
Richard Bennett
Deputy Director
Department for Transport
16th February 2012
SCHEDULE
FOR PROTECTION OF SECRETARY OF STATE FOR TRANSPORT
Article 21
1
The provisions of this Schedule shall, unless otherwise agreed in writing between the Board and the Highways Agency (“ the Agency ”), acting on behalf of the Secretary of State for Transport, have effect for the protection of the Secretary of State.
2
Where any consent, approval or agreement is required to be given by the Agency pursuant to this Schedule, it shall not be unreasonably withheld or delayed.
3
Before the Board commences the construction of Works Nos. 19 and 41 the Board must first notify the Agency in writing.
4
During the development and construction of Works Nos. 19 and 41 and any other works that have a material impact on the integrity or operation of the A20 Trunk Road, the Board shall at all times comply with all reasonable requirements of the Agency as to public safety, standards of construction and traffic management and shall construct Works Nos.19 and 41 under the supervision (if given) of the Agency.
5
For the purposes of Works Nos. 19 and 41, or of complying with the requests of the Agency pursuant to paragraph 4, the Board may act as an agent of the Agency.
6
The Board and the Agency shall enter into agreements with respect to the construction of the whole or any part of Works Nos. 19 and 41 and those agreements will (without limitation on the scope of this paragraph) —
a
make provision for the Board or the Agency to carry out any functions under this Order which relate to Works Nos. 19 and 41 and for those purposes section 278 of the Highways Act 1980 (“the 1980 Act ”) shall be construed as permitting the Board or those authorised on its behalf to carry out works in the public highway;
b
provide for the vesting (when completed) of the whole or any part of Works Nos. 19 and 41 in the Agency; and
c
contain such terms as to funding or otherwise as the parties consider appropriate.
7
Nothing in this Order shall prevent the Agency at its own cost from constructing pursuant to its existing powers under the 1980 Act the whole or any part of Works Nos. 19 and 41.
8
The Board must reimburse to the Agency the reasonable costs incurred by the Agency for any supervision by the Agency of the Board pursuant to paragraph 4.
9
This Schedule is without prejudice to the operation of section 278 of the 1980 Act. |
The Plant Protection Products (Sustainable Use) Regulations 2012
These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972. It appears to the Secretary of State that it is expedient for references in these Regulations to Directive 2009/128/ EC of the European Parliament and of the Council establishing a framework for Community action to achieve the sustainable use of pesticides to be construed as including references to Annexes I to IV of that Directive as amended from time to time.
Citation, commencement and extent
1
1
These Regulations may be cited as the Plant Protection Products (Sustainable Use) Regulations 2012 and, subject to paragraph (2), come into force on 18th July 2012.
2
The following regulations come into force on the dates specified —
a
regulation 9 comes into force on 26th November 2015, except paragraph (4) which comes into force on 18th July 2012; and
b
regulation 13 comes into force on 26th November 2013.
3
Any amendment made by Schedule 5 has the same extent as that of the enactment to which it relates.
4
Any revocation made by regulation 32(3) has the same extent as the enactment to which it relates.
Interpretation
2
1
In these Regulations —
“aerial spraying” means the application of plant protection products from an aircraft (plane or helicopter) and “aerial spray” shall be construed accordingly;
“aerial spraying permit” means a permit issued by the appropriate United Kingdom competent authority authorising aerial spraying;
“agriculture” includes —
the production of any consumable produce which is grown for sale or for consumption or other use for the purposes of a trade or business or of any other undertaking (whether carried on for profit or not);
dairy-farming;
the use of land as grazing, meadow or pasture land or orchard or osier land or woodland or for market gardens or nursery grounds; and
the preparation and maintenance of land for any such uses;
and “agricultural” shall be construed accordingly;
“the appropriate United Kingdom competent authority” means —
in relation to England and Wales, the Secretary of State;
in relation to Scotland, the Scottish Ministers; and
in relation to Northern Ireland, the Department;
“authorised person” means a person authorised in accordance with regulation 20(1);
“the Department” means the Department of Agriculture and Rural Development in Northern Ireland;
“Directive 1999/45/EC ” means Directive 1999/45/EC of the European Parliament and of the Council concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations ;
“the Directive” means Directive 2009/128/EC of the European Parliament and of the Council establishing a framework for Community action to achieve the sustainable use of pesticides, of which Annexes I to IV are as amended from time to time;
“distributor” means any person who makes a plant protection product available on the market, including wholesalers, retailers, vendors and suppliers;
“environment” means waters (including groundwaters, surface water, transitional waters, coastal waters and marine waters), sediment, soil, air, land, flora and fauna (indigenous or not), and any interrelationship between them, and any relationship with other living organisms;
“groundwater” means all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil;
“inspected” means inspected under a system implemented by a body designated pursuant to Article 8(6);
“Ministers” means the Secretary of State, the Scottish Ministers or the Welsh Ministers;
“plant protection product” has the same meaning as in Article 2(1) of Regulation 1107/2009 ;
“plant protection product application equipment” means any apparatus specifically designed for the application of plant protection products, including accessories that are essential for the effective operation of such equipment, such as nozzles, manometers, filters, strainers and cleaning devices for tanks;
“premises” includes any place and, in particular, includes —
any vehicle, vessel, aircraft, hovercraft or marine structure; and
any tent to moveable structure;
“professional user” means any person who uses plant protection products in the course of their work activities, including operators, technicians, employers and self-employed people, both in the farming and other sectors and “professional use” shall be construed accordingly;
“Regulation 1107/2009” means Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market and repealing Council Directives 79/117/ EEC and 91/414/EEC ;
“specified certificate” means —
a certificate of competence relating to plant protection products recognised by Ministers having been published in a list by Ministers before 18th July 2012, for the purposes of paragraph 4 or 5 of Schedule 2, or paragraphs 7 or 8 of Schedule 3, to the Control of Pesticides Regulations 1986 ;
a certificate of competence relating to plant protection products recognised by the Department, having been published in a list by the Department before 18th July 2012 for the purposes of paragraph 4 or 5 of Schedule 2, or paragraphs 7 or 8 of Schedule 3, to the Control of Pesticides Regulations (Northern Ireland) 1987 ;
a certificate of competence recognised by Ministers having been published in a list by Ministers before 18th July 2012, for the purposes of paragraph 3 or 4 of Schedule 2, or paragraph 7 or 8 of Schedule 3, to the Plant Protection Product (Basic Conditions) Regulations 1997 ;
a certificate of competence recognised by the Department, having been published in a list by the Department before 18th July 2012, for the purposes of paragraph 3 or 4 of Schedule 2, or paragraph 7 or 8 of Schedule 3, to the Plant Protection Product (Basic Conditions) Regulations (Northern Ireland) 1997 ;
a certificate that was deemed to be a “specified certificate” pursuant to regulation 31(3) and is included in a list referred to in regulation 5(11); or
a certificate issued by a body that has been designated pursuant to regulation 5(2) and is included in a list referred to in regulation 5(11);
“surface water” means —
inland waters, except groundwater;
transitional waters; and
coastal waters;
“transitional waters” means bodies of surface water in the vicinity of river mouths which are partly saline in character as a result of their proximity to coastal waters but which are substantially influenced by freshwater flows;
“under supervision” means under the direct and personal supervision, and in the presence, of a person who holds a specified certificate, where such supervision is being provided for the purposes of training.
2
For the purposes of regulations 8, 9(7), 10(4)(b) and 31(1) and (2) “authorised” means authorised in accordance with Regulation 1107/2009.
3
In these Regulations any reference to an Article by number alone is to be construed as a reference to the Article so numbered in the Directive.
4
Expressions in the Directive shall have the same meaning in these Regulations as they have in the Directive except where a definition in this regulation ascribes a different meaning.
Review
3
1
The Secretary of State must from time to time —
a
carry out a review of regulations 2 and 4 to 32;
b
set out the conclusions of the review in a report; and
c
publish the report.
2
The review shall relate to the operation of these Regulations as they have effect in relation to England and Wales only.
3
In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how the Directive which is implemented by means of regulations 2 and 4 to 32 is implemented in other Member States.
4
The report must in particular —
a
set out the objectives intended to be achieved by the regulatory system established by those regulations;
b
assess the extent to which those objectives are achieved; and
c
assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
5
The first report under this regulation must be published before the end of the period of five years beginning with 18th July 2012.
6
Reports under this regulation are afterwards to be published at intervals not exceeding five years.
National Action Plan
4
The Secretary of State, the Scottish Ministers and the Department must jointly —
a
adopt a National Action Plan in accordance with Article 4 and revise it as necessary;
b
list plant protection product application equipment to which regulation 12(1) applies in the National Action Plan in accordance with Article 8(3)(a); and
c
describe in the National Action Plan, for the purposes of Article 14(4), how they will ensure that the general principles of integrated pest management as set out in Annex III to the Directive are to be implemented by all professional users by 1st January 2014.
Designation of authorities (training and certification)
5
1
The appropriate United Kingdom competent authority shall ensure, by 26th November 2013, that systems are established which enable distributors, advisors and professional users to have access to appropriate training by bodies deemed to be designated under paragraph (10) and to obtain certificates which, as a minimum, provide evidence of sufficient knowledge of the subjects listed in Annex I to the Directive either by undergoing training or by other means (“certification systems”).
2
Before 26th November 2016, for the purposes of Article 5(2), the appropriate United Kingdom competent authority must designate, by including their names on a list published by that authority, bodies responsible for the implementation of certification systems (“awarding bodies”) and that authority may update that list from time to time.
3
The appropriate United Kingdom competent authority may only designate an awarding body if —
a
the authority is satisfied that the body has the necessary capability to implement a certification system; and
b
its awards are accredited by a regulator in the United Kingdom or it is subject to independent review by a regulator in the United Kingdom.
4
An awarding body will no longer be designated if the appropriate United Kingdom competent authority removes its name from its published list of awarding bodies.
5
The appropriate United Kingdom competent authority may remove the name of an awarding body from its published list of awarding bodies if the awarding body no longer satisfies the criteria set out in paragraph (3).
6
A specified certificate provides evidence of sufficient knowledge of the subjects listed in Annex I to the Directive acquired by professional users, distributors and advisors either by undergoing training or by other means.
7
Where the holder of a specified certificate is convicted of an offence under these Regulations, under the Plant Protection Products Regulations 2011 , or under the Plant Protection Products Regulations (Northern Ireland) 2011 that certificate is deemed to be withdrawn immediately on receipt of a notice in writing notifying him or her of that fact served by the appropriate United Kingdom competent authority.
8
A person whose certificate is deemed to be withdrawn pursuant to paragraph (7) may, by satisfying the relevant criteria, obtain another certificate.
9
If the holder of a certificate deemed to be withdrawn pursuant to paragraph (7) successfully appeals against his or her conviction, his or her certificate is no longer deemed to be withdrawn.
10
For the purposes of Article 5(1), the bodies designated by awarding bodies are deemed to be those bodies that offer training on the subjects listed in Annex I to the Directive leading to an accredited award in relation to plant protection products.
11
Before 26th November 2013, the appropriate United Kingdom competent authority must publish a list of certificates, updated from time to time, that provide evidence of sufficient knowledge of the subjects listed in Annex I to the Directive acquired either by undergoing training or by other means.
12
In this regulation —
“accredited award” means an award accredited by a regulator in the United Kingdom or an award that is offered by a body that is subject to independent review by a regulator in the United Kingdom;
“advisor” means any person who has acquired adequate knowledge of and advises on pest management and the safe use of plant protection products, in the context of a professional capacity or commercial service, including private, self-employed and public advisory services, commercial agents, food producers and retailers where applicable;
“awarding body” means a body responsible for implementing a certification system;
“a regulator in the United Kingdom” means —
in relation to England, the Quality Assurance Agency or the Office of Qualifications and Examinations Regulation;
in relation to Wales, the Welsh Ministers or the Quality Assurance Agency (Wales);
in relation to Scotland, the Quality Assurance Agency (Scotland) or the Scottish Qualifications Authority;
in relation to Northern Ireland, the Northern Ireland Council for Curriculum Examinations and Assessment or the Office of Qualifications and Examinations Regulation.
Designation of authorities (inspection of equipment in use)
6
1
For the purposes of Article 8(6), the appropriate United Kingdom competent authority must designate the bodies responsible for implementing inspection systems for plant protection product application equipment (“implementing bodies”) by including their names on a list published by that authority.
2
The appropriate United Kingdom competent authority must designate implementing bodies if it is of the opinion that those bodies implement inspection systems which comply with the requirements for inspections set out in Annex II to the Directive.
3
The appropriate United Kingdom competent authority may remove the name of an implementing body from its published list of implementing bodies if it is of the opinion that it no longer satisfies the criterion set out in paragraph (2).
4
Implementing bodies must keep a register of inspectors who carry out inspections of plant protection product application equipment, such inspections being carried out in order to ascertain whether such equipment meets the relevant requirements set out in Annex II to the Directive (“the register”).
5
Where an inspector on the register (“registered inspector”) is satisfied that plant protection product application equipment meets the relevant requirements listed in Annex II to the Directive, such equipment will pass inspection and “passed inspection” in this regulation shall be construed accordingly.
6
Implementing bodies must ensure that the systems implemented by them require registered inspectors to provide the owner or lessee of plant protection product application equipment that has passed inspection with an inspection certificate.
7
An inspection certificate issued by a registered inspector pursuant to paragraph (6), or by a body responsible for implementing inspection systems for plant protection product application equipment in another Member State is evidence that the plant protection product application equipment to which the certificate relates has passed inspection.
8
In this regulation, “inspection certificate” means evidence in writing that plant protection product application equipment has passed inspection.
Designation of authorities (aerial spraying)
7
1
For the purposes of Article 9, the appropriate United Kingdom competent authority is the competent authority for —
a
authorising aerial spraying;
b
establishing the specific conditions under which aerial spraying may be carried out;
c
examining requests pursuant to Article 9(4); and
d
making information public in accordance with Article 9(3).
2
For the purposes of Article 9(2)(d), the Civil Aviation Authority is the competent authority responsible for issuing certificates referred to in Schedule 2, paragraph (7)(e).
Requirements for specified certificates
8
1
No person shall use a plant protection product authorised for professional use unless they hold a specified certificate or work under supervision.
2
No person shall cause or permit any other person to use a plant protection product authorised for professional use unless the person using the product holds a specified certificate or works under supervision.
3
This regulation does not apply to any person who uses a plant protection product authorised for professional use if —
a
he or she was born on or before 31st December 1964; and
b
he or she uses plant protection products authorised for professional use on crops, land, produce, buildings, or the contents of buildings, materials or other areas intended to be treated which are owned or occupied by himself or herself or by his or her employer and he or she is competent to use such products.
4
Paragraph (3) ceases to have effect on 25th November 2015.
Requirements for sales and purchases of plant protection products
9
1
Subject to Schedule 1 (exemption for micro-distributors), distributors who sell to end-users must ensure that sufficient staff holding specified certificates are available at the time of the sale of plant protection products to provide adequate information to customers as regards use, health and environmental risks and safety instructions to manage those risks for the products in question.
2
This regulation does not oblige any distributor to employ staff, but any distributor to which the exemption for micro-distributors in paragraph 1 of Schedule 1 does not apply and who does not employ staff must hold a specified certificate.
3
Schedule 1 has effect.
4
Distributors who sell plant protection products to persons other than professional users must provide general information regarding the risks for human health and the environment of plant protection product use, in particular on hazards, exposure, proper storage, handling, application and safe disposal in accordance with European Union legislation on waste, as well as regarding low-risk alternatives.
5
A person (P) must not purchase, or cause another person to purchase, a professional product for use by any individual (including P) unless that individual holds a specified certificate or, if that individual does not hold a certificate, either of the conditions set out in paragraph (6) is satisfied.
6
The conditions referred to in paragraph (5) are —
a
where a professional product is purchased for use by P, P intends to work under supervision; or
b
where a professional product is purchased for use by an individual other than P, P must reasonably believe that such an individual will use that product under supervision.
7
In this regulation, “professional product” means a plant protection product authorised for professional use.
Use of plant protection products
10
1
A person who uses, or causes or permits an individual to use, a plant protection product must ensure —
a
that all reasonable precautions are taken to protect human health and the environment;
b
that the application of the plant protection product is confined to the crop, land, produce, buildings, contents of buildings, materials or other areas intended to be treated; and
c
when the product is used in any of the places listed in paragraph (2), that the amount used and the frequency of use are as low as reasonably practicable.
2
The places referred to in paragraph (1)(c) are —
a
areas used by the general public or by vulnerable groups;
b
areas in the close vicinity of healthcare facilities;
c
protected areas of the type referred to in paragraph 1(v) of Annex IV to Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy (“Directive 2000/60/EC ”) or other areas identified for the purposes of establishing the necessary conservation measures in accordance with the provisions in Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds and Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ;
d
areas recently treated with a plant protection product and used by or accessible to agricultural workers;
e
on or along roads, railway lines, very permeable surfaces, or other infrastructure close to surface water or groundwater; or
f
on sealed surfaces with a high risk of run-off into surface water or sewage systems.
3
A person who uses, or causes or permits an individual to use a plant protection product in the circumstances set out in paragraph (4) must, so far as is reasonably practicable, use or cause or require the use of a plant protection product not classified as dangerous for the aquatic environment pursuant to Directive 1999/45/EC nor containing priority hazardous substances as referred to in Article 16(3) of Directive 2000/60/EC (“priority hazardous substances”).
4
The circumstances referred to in paragraph (3) are —
a
the use of the plant protection product represents a risk to the aquatic environment or drinking water; and
b
there is a product authorised for use in the particular situation which is neither classified as dangerous for the aquatic environment pursuant to Directive 1999/45/EC nor containing priority hazardous substances.
5
Where necessary in order to protect non-target aquatic organisms, the appropriate United Kingdom competent authority must include in authorisations and permits granted under Regulation 1107/2009 a requirement for an appropriately sized buffer zone.
6
In this regulation —
a
“areas used by the general public” includes public parks and gardens, sports and recreation grounds, school grounds and children’s playgrounds;
b
“sealed surfaces” means surfaces that do not allow liquid to pass through them;
c
“vulnerable groups” means persons needing specific consideration when assessing the acute and chronic health effects of plant protection products, including pregnant and nursing women, the unborn, infants and children, the elderly and workers and residents subject to high plant protection product exposure over the long term.
Inspection of specified plant protection product application equipment
11
1
This regulation applies in relation to the following plant protection product application equipment in professional use (“specified equipment”) —
a
spraying equipment mounted on trains or aircraft;
b
boom sprayers longer than 3 metres, including boom sprayers mounted on sowing equipment and variable geometry booms; and
c
vehicle-mounted or drawn sprayers which broadcast spray droplets, in an air stream produced by forced air, which carry upwards and outwards from the source of the spray.
2
A person who owns or leases specified equipment that was purchased for the first time on or before 26th November 2011 must ensure that it is inspected before 26th November 2016.
3
Paragraph (2) ceases to have effect on 26th November 2016.
4
A person who owns or leases specified equipment that was purchased for the first time after 26th November 2011 and is less than five years old starting with the date of first purchase must ensure that it is inspected before the fifth anniversary of the date of first purchase.
5
A person who owns or leases specified equipment that is more than five years old starting with the date of first purchase must ensure that —
a
prior to 26th November 2020 such equipment is inspected at least once every five years;
b
after 26th November 2020 such equipment is inspected at least once every three years.
6
Where by 26th November 2020 specified equipment that is more than five years old starting with the date of first purchase has not been inspected for three years, the person who owns or leases that equipment must ensure that it is inspected by that date.
Inspection of other plant protection product application equipment
12
1
This regulation applies in relation to plant protection product application equipment in professional use other than —
a
plant protection product application equipment to which regulation 11(1) applies;
b
handheld equipment; and
c
knapsack sprayers.
2
A person who owns or leases other equipment that was purchased for the first time on or before 26th November 2011 must ensure that it is inspected before 26th November 2016.
3
Paragraph (2) ceases to have effect on 26th November 2016.
4
A person who owns or leases other equipment that was purchased for the first time after 26th November 2011 and is less than five years old starting with the date of first purchase must ensure that it is inspected before the fifth anniversary of the date of first purchase.
5
A person who owns or leases other equipment that is more than five years old starting with the date of first purchase must ensure that it is inspected at least once every six years.
6
In this regulation, “other equipment” means plant protection product application equipment to which this regulation applies.
Inspection by professional user
13
Professional users must conduct regular calibrations and technical checks of the plant protection product application equipment they use having regard to the nature of the equipment and in accordance with the training referred to in regulation 5(1).
Use of equipment
14
1
A person who owns or leases plant protection product application equipment must ensure that such equipment is not used by a professional user unless it has passed inspection conducted in accordance with the requirements of regulation 11 or 12 (as the case may be).
2
In this regulation “passed inspection” has the same meaning as in regulation 6(5).
Aerial spraying
15
1
Subject to paragraph (2), no person shall carry out aerial spraying or cause or permit another person to carry out aerial spraying.
2
A person may carry out aerial spraying or cause or permit another person to carry out aerial spraying if such spraying is authorised by an aerial spraying permit.
3
Schedule 2 (aerial spraying permits) has effect.
4
The pilot carrying out the aerial spraying must comply with the conditions set out in the aerial spraying permit which are identified as being for the pilot.
5
The holder of the aerial spraying permit (“permit holder”) must —
a
comply with the conditions set out in the aerial spraying permit which are identified as being for the permit holder; and
b
take all reasonable precautions to ensure that the pilot complies with the conditions set out in the aerial spraying permit which are identified as being for the pilot.
6
The appropriate United Kingdom competent authority must —
a
keep records of the applications for aerial spraying permits and the information accompanying those applications which is required by paragraph 3 of Schedule 2; and
b
make available to the public information contained in those records such as the area to be sprayed, the provisional day and time of spraying and the type of plant protection product in accordance with its national law or European Union law.
Applications for aerial spraying permits: provision of information
16
1
A person making an application for an aerial spraying permit must not —
a
make a statement which that person knows to be false in a material particular;
b
recklessly make a statement which is false in a material particular; or
c
intentionally fail to disclose any material particular.
2
A person must not cause or permit any person, in relation to an application for an aerial spraying permit, to make a statement which the former knows to be false in a material particular.
Handling and storage of plant protection products and treatment of their packaging and remnants
17
1
A professional user or distributor who carries out any of the operations set out in paragraph (2) must take all reasonable precautions to ensure that such operations do not endanger human health or the environment.
2
The operations referred to in paragraph (1) are —
a
the storing, handling, diluting or mixing of plant protection products before application;
b
the handling of the packaging and remnants of plant protection products;
c
the disposal of tank mixtures remaining after the application of plant protection products;
d
the cleaning of plant protection product application equipment after the application of that product;
e
the recovering or disposing of plant protection product remnants and their packaging.
3
No person shall combine or mix for use two or more plant protection products which are anticholinesterase compounds unless such a combination or mixture is expressly authorised or permitted by —
a
the conditions of an authorisation or permit granted in accordance with Regulation 1107/2009 given in relation to at least one of those plant protection products; or
b
the labelling of the container in which at least one of those plant protection products has been sold, supplied or otherwise marketed to that person.
4
No person shall combine or mix for use two or more plant protection products unless —
a
all of the conditions of the authorisation or the permit given in relation to each of those plant protection products; and
b
the conditions on the label of the container in which each of those plant protection products has been sold, supplied or otherwise marketed to that person
are complied with.
5
A person who stores plant protection products for professional use must ensure that such products are stored in areas that are constructed in such a way as to prevent unwanted releases.
6
A person must not store a plant protection product, or cause or permit another person to do so, unless storage of that product is authorised or permitted under a valid authorisation or permission granted in accordance with Regulation 1107/2009.
Code of practice
18
1
The appropriate United Kingdom competent authority may from time to time, for the purpose of providing practical guidance in respect of any requirements in these Regulations or Regulation 1107/2009 —
a
prepare and issue such codes of practice as are in its opinion suitable for that purpose; and
b
revise any such code by revoking, amending or adding to the provision of the code.
2
The appropriate United Kingdom competent authority must not issue or revise a code of practice under paragraph (1) without having consulted such persons, government departments and bodies that appear to it to be appropriate.
3
Where a code of practice is issued or revised by the appropriate United Kingdom competent authority under paragraph (1), that authority must issue a notice identifying the code in question and stating the date on which it, or the revision, is to take effect.
4
The appropriate United Kingdom competent authority may withdraw a code issued under paragraph (1) or any part of it and, if it does so, it must issue a notice identifying the code in question or relevant part of it and stating the date on which it, or the relevant part of it, is to cease to have effect.
5
A failure on the part of any person to follow any guidance contained in a code issued under paragraph (1) shall not render that person liable to proceedings of any kind.
6
In all civil and criminal proceedings any code issued under this regulation shall be admissible in evidence and if the failure to follow any guidance in such a code appears to the court conducting the proceedings to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question.
Enforcement
19
1
These Regulations are enforced by —
a
the Secretary of State in relation to England;
b
the Welsh Ministers in relation to Wales;
c
the Scottish Ministers in relation to Scotland; and
d
the Department in relation to Northern Ireland.
2
The Secretary of State may delegate to the Director of Public Prosecutions functions in relation to the prosecution of offences under these Regulations in so far as those functions relate to offences committed in England.
Powers of authorised persons
20
1
The Secretary of State (in relation to England), the Welsh Ministers (in relation to Wales), the Scottish Ministers (in relation to Scotland) and the Department (in relation to Northern Ireland) may authorise any person to exercise the powers set out in Schedule 3.
2
An authorised person, if so authorised by the person authorising him or her, may prosecute before a magistrates’ court in England and Wales proceedings for an offence under these Regulations.
3
A person may be authorised for specified purposes.
4
An authorisation must be evidenced in writing.
5
The Secretary of State and the Welsh Ministers acting jointly in relation to local authority officers in England and Wales, and the Scottish Ministers in relation to local authority officers in Scotland, may specify descriptions of local authority officers who may be authorised to exercise enforcement powers and may direct that an officer of a particular description may only be appointed to exercise them for a specified purpose.
6
Any specification or direction under paragraph (5) must be in writing.
7
If the Secretary of State and Welsh Ministers or the Scottish Ministers specify a description of local authority officers under paragraph (5), a local authority may authorise any of its officers falling within that description to exercise enforcement powers.
8
Schedule 3 (powers of authorised persons) has effect.
9
In this regulation “enforcement powers” means the powers set out in Schedule 3.
10
In this regulation “local authority” means —
a
in relation to England —
i
where there is a unitary authority, within the meaning of the Local Government Changes for England Regulations 1994 , that authority;
ii
where there is not a unitary authority —
aa
in a metropolitan district, the council of that district;
bb
in a non-metropolitan district, the council of that county or the council of a district within the county area;
cc
in each London borough, the council of that borough;
iii
in the City of London, the Common Council; or
iv
the Council of the Isles of Scilly;
b
in relation to Wales, a county council or a county borough council; and
c
in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 .
Evidence of authorisation
21
1
An authorised person performing functions under these Regulations must produce, on request, evidence of his or her authorisation.
2
An authorised person shall state, if requested —
a
his or her name;
b
the functions to be performed; and
c
the grounds for proposing to perform those functions.
Non-compliance with notices
22
1
A person must comply with the provisions of a notice served under paragraph 6(1) or 7(1) or (3) of Schedule 3.
2
An authorised person may make arrangements to ensure that the requirements in a notice issued by them are complied with if the person on whom the notice was served fails to comply with the requirements in the notice.
3
Any costs reasonably incurred by any authorised person in ensuring that the requirements of a notice are complied with may be recovered, on demand, from the person on whom the notice was served.
Obstruction of an authorised person
23
1
A person —
a
must not intentionally obstruct any authorised person performing his or her functions under these Regulations; and
b
must comply with any requirement imposed by an authorised person performing his or her functions under these Regulations.
2
A person purporting to give information required by an authorised person performing his or her functions under these Regulations must not —
a
make a statement which they know to be false in a material particular;
b
recklessly make a statement which is false in a material particular; or
c
intentionally fail to disclose any material particular.
Offence
24
A person who contravenes or fails to comply with —
a
regulation 8(1) or (2);
b
regulation 9(1), (2), (4) or (5);
c
regulation 10(1) or (3);
d
regulation 11(2), (4), (5) or (6);
e
regulation 12(2), (4) or (5);
f
regulation 13;
g
regulation 14(1);
h
regulation 15(1), (4) or (5);
i
regulation 16(1) or (2);
j
regulation 17(1), (3), (4), (5) or (6);
k
regulation 22(1);
l
regulation 23(1) or (2); or
m
regulation 31(1)
is guilty of an offence.
Offences by bodies corporate
25
1
Where a body corporate is guilty of an offence under these Regulations, and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of —
a
any director, manager, secretary or other similar officer of the body corporate; or
b
any person who was purporting to act in any such capacity,
he or she, as well as the body corporate, shall be guilty of the offence and be liable to be proceeded against and punished accordingly.
2
In paragraph (1) “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.
3
Where an offence under these Regulations is committed in Scotland by a Scottish partnership and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of a partner or any person who was purporting to act in any such capacity, he or she as well as the partnership shall be guilty of the offence and liable to be proceeded against and punished accordingly.
Defences
26
1
In any proceedings for an offence under these Regulations, other than in relation to regulation 23(1)(a) or (2), it is a defence for the person charged to prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
2
A person is to be taken to have established the defence provided by paragraph (1) if they prove —
a
that they acted under instructions given to them by their employer; or
b
that they acted in reliance on information supplied by another person without any reason to suppose that the information was false or misleading,
and in either case that they took all such steps as were reasonably open to them to ensure that no offence would be committed.
3
If, in any case, the defence provided by paragraph (1) involves an allegation that the commission of the offence was due to —
a
an act or omission by another person, other than the giving of instructions to the person charged with the offence by their employer; or
b
reliance on information supplied by another person,
the person charged shall not, without the permission of the court, be entitled to rely on that defence unless within a period ending seven clear days before the hearing, they have served on the prosecutor a notice giving such information identifying or assisting in the identification of that other person as was then in their possession.
Penalties
27
1
A person guilty of an offence under these Regulations, other than for contravention of or failure to comply with regulation 22(1) or 23(1)(b) is liable —
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to a fine.
2
A person guilty of an offence for contravention of or failure to comply with regulation 22(1) or 23(1)(b) is liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale.
3
For the purposes of the jurisdiction of a court to try offences under these Regulations, any offence under these Regulations may be treated as having been committed in any place in the United Kingdom.
Service of documents
28
Schedule 4 (service of documents) has effect.
Agency arrangements
29
1
The Scottish Ministers may arrange, with the agreement of the Secretary of State, for any of their functions under or for the purposes of the Directive and these Regulations to be exercised on their behalf by the Secretary of State.
2
An arrangement under these Regulations in respect of any functions may include provisions for any fees and charges payable to the Scottish Ministers pursuant to regulation 6 of the Plant Protection Product (Fees and Charges) Regulations 2011 in respect of that function to be collected by the Secretary of State on behalf of the Scottish Ministers.
3
An arrangement under these Regulations shall be in writing and be signed by, or on behalf of, the Scottish Ministers and the Secretary of State and such an arrangement may be subject to such conditions (including conditions as to the costs) as may be agreed.
Application to the Crown
30
1
Subject to paragraph (2), an authorised person may perform any of his or her functions under these Regulations in relation to land in which there is a Crown interest or Duchy interest.
2
An authorised person shall not perform any functions —
a
in relation to land in which there is no interest other than a Crown interest or Duchy interest; or
b
in relation to land which is exclusively in Crown occupation.
3
In this regulation —
“Crown interest” means any interest belonging to Her Majesty in right of the Crown or belonging to a government department or an office holder in the Scottish Administration or held in trust for Her Majesty for the purposes of a government department or the Scottish Administration;
“Crown occupation” means occupation by Her Majesty in right of the Crown or occupation by a government department or the Scottish Administration; and
“Duchy interest” means an interest belonging to Her Majesty in right of the Duchy of Lancaster, or belonging to the Duchy of Cornwall.
Transitional provisions
31
1
No person shall sell, supply or otherwise market to an end-user a plant protection product authorised for agricultural use unless that person —
a
has obtained a specified certificate; or
b
sells or supplies that plant protection product under supervision.
2
In this regulation, “plant protection product authorised for agricultural use” means a plant protection product (other than a plant protection product with methyl bromide or chloropicrin as one of its active substances) authorised for one or more of the following uses —
a
agriculture;
b
horticulture (including amenity horticulture);
c
forestry
d
use in or near water other than for amateur, public hygiene or anti-fouling uses;
e
use as an industrial herbicide, including weed-killers for use on land not intended for the production of any crop.
3
A certificate issued before 26th November 2013 which evidences knowledge of the safe use of plant protection products acquired by undergoing training or by other means, other than —
a
a certificate referred to in paragraphs (a) to (d) in the definition of “specified certificate” in regulation 2(1); and
b
a certificate issued by a body that has been designated under regulation 5(2),
is deemed to be a specified certificate until 26th November 2013 when it ceases to be a specified certificate for the purposes of these Regulations unless it appears in a list referred to in regulation 5(11).
4
Paragraphs (1) and (2) cease to have effect after midnight on 25th November 2015.
5
Any consent —
a
under the Plant Protection Products (Basic Conditions) Regulations 1997 granted by, or on behalf of, the Secretary of State or the Scottish Ministers; or
b
under the Plant Protection Products (Basic Conditions) Regulations (Northern Ireland) 1997 granted by or on behalf of the Department,
which is valid on 18th July 2012 is deemed to be an authorisation in accordance with Regulation 1107/2009 and any conditions in that consent are deemed to be requirements imposed under Regulation 1107/2009.
Amendments and revocations
32
1
The enactments specified in the Table in Schedule 5 are amended to the extent specified in the Table.
2
Schedule 5 shall have effect.
3
The following Regulations are revoked —
a
the Plant Protection Products (Basic Conditions) Regulations 1997; and
b
the Plant Protection Products (Basic Conditions) Regulations (Northern Ireland) 1997.
Richard Benyon
Parliamentary Under Secretary of State
Department for Environment, Food and Rural Affairs
20th June 2012
SCHEDULE 1
Exemption for micro-distributors
Regulation 9(3)
The exemption
1
Regulation 9(1) does not apply in relation to a distributor —
a
if the distributor was a micro-distributor in its preceding financial year and the accounts for that period are closed;
b
if the distributor had an annual turnover which did not exceed 2 million euros in its preceding financial year; and
c
if the only plant protection products offered for sale by that distributor are for non-professional use and are not formulations classified as toxic, very toxic, carcinogenic, mutagenic or toxic for reproduction pursuant to Directive 1999/45/EC .
Micro-distributor
2
A distributor is a micro-distributor in a financial year if the number of weeks when the distributor has fewer than 10 employees is greater than the number of weeks when the distributor has 10 or more employees.
Number of employees of a distributor
3
A distributor has fewer than 10 employees in a week if the total number of hours for which all the employees of the distributor are contracted to work in that week is less than 375.
Employees
4
1
“Employee” means an individual who has entered into or works under a contract of employment.
2
In paragraph (1) “contract of employment” means a contract of service, whether express or implied, and (if it is express) whether oral or in writing.
Franchises
5
A distributorship that is carried on pursuant to a franchise agreement is treated as part of the distributorship of the franchisor (and not as a separate distributorship carried on by the franchisee).
Interpretation
6
1
“Annual turnover” means the amounts derived from the provision of goods and services falling within the distributor’s ordinary activities, after deduction of —
a
trade discounts,
b
value added tax, and
c
any other taxes based on the amounts so derived.
2
“Financial year” means the period of twelve months for which the income of the distributor is computed for the purposes of the tax legislation that applies to it.
3
“Preceding financial year” means the financial year immediately preceding the distributor’s current financial year.
4
References to an amount in euros includes references to an equivalent amount in sterling, and the equivalent amount in sterling is calculated using the London closing exchange rate for sterling and the euro on the last day of the distributor’s preceding financial year.
5
Paragraphs 2 to 5 and this paragraph apply in relation to the interpretation of the exemption in paragraph 1.
SCHEDULE 2
Aerial spraying permits
Regulation 15(3)
1
An application for an aerial spraying permit must be made to the appropriate United Kingdom competent authority.
2
The appropriate United Kingdom competent authority must publish the deadlines by which applications for aerial spraying must be submitted to the competent authorities and the deadlines by which the competent authorities must communicate their decisions on applications for aerial spraying to the applicants.
3
An application for an aerial spraying permit must be accompanied by the following (“the required information”) —
a
a request for approval of an application plan or confirmation that an application plan has already been approved by the appropriate United Kingdom competent authority;
b
information about the provisional time of spraying and the amount and type of plant protection product or products to be applied; and
c
evidence to show that the conditions set out in paragraph 7, other than at sub-paragraph (b), are satisfied.
4
If an applicant for an aerial spraying permit —
a
has been informed by the appropriate United Kingdom competent authority that the application plan accompanying that application has been approved; but
b
has not received confirmation that an aerial spraying permit covering all or part of the applications referred to in that plan has been granted before the published deadline for the appropriate United Kingdom competent authority to communicate that decision,
the application for that aerial spraying permit is deemed to be approved.
5
If the application for an aerial spraying permit —
a
is not accompanied by the required information; or
b
has not been submitted by the relevant deadline established under paragraph 2,
the relevant United Kingdom competent authority must inform the applicant of that fact by a notice in writing and need not consider the application.
6
Where an application for an aerial spraying permit is not accompanied by the required information, the application is only treated as being submitted when the last piece of that information is submitted to the appropriate United Kingdom competent authority.
7
An aerial spraying permit must not be issued unless the application plan is approved and the following conditions are met —
a
there must be no viable alternatives, or there must be clear advantages in terms of reduced impacts on human health and the environment as compared with land-based application of plant protection products;
b
the application contains information about the provisional time of spraying and the amounts and type of plant protection product or products to be applied;
c
the plant protection product or products to be used must be explicitly authorised for aerial spraying by the appropriate United Kingdom competent authority following a specific assessment addressing the risks from aerial spraying;
d
the application contains the reference numbers of the specified certificates of all individuals who will be carrying out the aerial spraying or any part of it;
e
every aircraft to be used for aerial spraying must be identified in an aerial application certificate granted by the Civil Aviation Authority under article 131(2) of the Air Navigation Order 2009 and held by the operator of such aircraft;
f
the area to be sprayed must not be in close proximity to any residential area; and
g
after 31st December 2012, the aircraft is equipped with accessories that constitute the best available technology to reduce spray drift.
8
The appropriate United Kingdom competent authority must specify in each aerial spraying permit it issues —
a
the conditions under which aerial spraying must be carried out;
b
the conditions which apply to the individual carrying out the aerial spraying (“the pilot”) or the holder of the aerial spraying permit (“the permit holder”) or to both;
c
specific risk management measures to ensure that there are no adverse effects on the health of bystanders if the area to be sprayed by way of aerial spraying is in close proximity to areas open to the public; and
d
the necessary measures to be taken by the permit holder for warning residents and bystanders in due time, and the measures necessary to protect the environment in the vicinity of the area sprayed.
9
A United Kingdom competent authority may withdraw or amend an aerial spraying permit it has issued where —
a
any of the conditions in paragraph 7, other than sub-paragraph (b), are not or are no longer satisfied;
b
false or misleading information was supplied concerning the facts on the basis of which the permit was granted;
c
a condition in the permit has not been met;
d
on the basis of developments in scientific and technical knowledge, the manner of use of the plant protection product or products referred to in the permit or the amounts used or both can be amended; or
e
the permit holder or the pilot has contravened or has failed to comply with any of the obligations imposed upon them under these Regulations, the Plant Protection Products Regulations 2011 or the Plant Protection Products Regulations (Northern Ireland) 2011 .
10
The appropriate United Kingdom competent authority may withdraw or amend an aerial spraying permit it has issued at the request of the permit holder.
11
If the permit holder requests that the permit be amended or withdrawn by the appropriate United Kingdom competent authority, that person must state the reasons for the request.
12
If the appropriate United Kingdom competent authority withdraws or amends an aerial spraying permit it has issued in accordance with paragraph 9 or 10, it shall immediately inform the permit holder.
SCHEDULE 3
Powers of authorised persons
Regulation 20(8)
Powers of entry
1
1
An authorised person may enter any premises (except any premises used wholly or mainly as a private dwelling) if he or she has reasonable grounds to believe that any plant protection product is being, or has been, applied to or stored on or in them, transported on or applied by means of them and that it is necessary to enter for the purpose of ensuring that these Regulations are complied with.
2
An authorised person must exercise powers of entry at a reasonable hour unless it appears to the authorised person that there are grounds for suspecting that the exercise of the power of entry may be frustrated if he or she seeks to exercise them at a reasonable hour.
3
An authorised person who enters any unoccupied premises must leave them as effectively secured against unauthorised entry as they were before his or her entry.
Search warrants
2
1
A justice of the peace in England and Wales, a lay magistrate in Northern Ireland, or a sheriff, stipendiary magistrate or justice of the peace in Scotland may issue a warrant permitting an authorised person to enter any premises if necessary by reasonable force for the purposes of the enforcement of these Regulations, if satisfied that the authorised person has reasonable grounds for requiring entry and any of the conditions set out in sub-paragraph (2) are satisfied.
2
The conditions referred to in sub-paragraph (1) are that —
a
admission has been refused, or a refusal is expected, and (in either case) that notice to apply for a warrant has been given to the occupier;
b
asking for admission, or the giving of such a notice, would defeat the object of the entry;
c
the case is one of urgency; or
d
the premises are unoccupied or the occupier is temporarily absent.
3
Where an authorised person applies for a warrant under sub-paragraph (1), he or she must state —
a
the grounds upon which the application is made;
b
that the warrant would be issued under this Schedule; and
c
what is being sought.
4
An application for a warrant under sub-paragraph (1) must be supported by an information in writing, in England and Wales; on sworn complaint in writing in Northern Ireland; or by evidence on oath in Scotland.
5
An application for a warrant under sub-paragraph (1), where the condition satisfied is set out in sub-paragraph (2)(a), must be made on notice, and where the condition satisfied is set out in sub-paragraph(2)(b), (c) or (d), must be made without notice.
6
The authorised person shall answer on oath any question that the justice of the peace, lay magistrate, sheriff or stipendiary magistrate hearing the application asks him or her.
7
A warrant shall authorise entry on one occasion only.
8
A warrant shall specify —
a
the name of the person who applies for it;
b
the date on which it is issued;
c
that it is issued under this Schedule; and
d
the address of the premises to be entered and searched;
and shall identify, so far as is practicable, what is to be sought.
9
The court shall provide two copies of the warrant certified as such.
Execution of warrants
3
1
Entry and search under a warrant must be within three months from the date of its issue.
2
Where the occupier of the premises to be entered and searched is present at the time when an authorised person seeks to execute a warrant to enter and search them, the authorised person shall —
a
identify himself or herself to the occupier and shall produce to the occupier evidence of his or her authority;
b
produce the warrant to the occupier; and
c
supply the occupier with a certified copy of it.
3
Where the occupier of the premises is not present at the time when an authorised person seeks to execute such a warrant, but some other person who appears to the authorised person to be in charge of the premises is present, sub-paragraph (2) shall have effect as if any reference to the occupier were a reference to that other person.
4
If there is no person present who appears to the authorised person to be in charge of the premises, the authorised person must leave a copy of the warrant in a prominent place on the premises.
5
A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued.
6
An authorised person executing a warrant shall make an endorsement on it stating whether what was sought was found.
7
A warrant shall be returned to the designated officer for the local justice area in which the justice of the peace, lay magistrate, sheriff or stipendiary magistrate was acting when the warrant was issued —
a
when it has been executed; or
b
in the case of a warrant which has not been executed, upon the expiry of three months from the date of its issue or sooner.
8
In Scotland the designated officer is the sheriff clerk if the warrant was issued by a sheriff, and the clerk of the justice of the peace’s court if the warrant was issued by a justice of the peace or stipendiary magistrate.
9
In Northern Ireland the designated officer is the clerk of the court for the area in which the lay magistrate was acting when the warrant was issued.
10
A warrant which is returned under sub-paragraph (7) shall be retained for 12 months from its return by the designated officer for the local justice area.
11
If during the period for which a warrant is to be retained the occupier of the premises to which it relates asks to inspect it, such inspection shall be allowed.
General powers
4
1
An authorised person exercising powers of entry pursuant to paragraph 1(1), or in accordance with a warrant granted under paragraph 2(1), may —
a
search for any item, if necessary using reasonable force;
b
open or examine, or both, anything that is on, attached to or otherwise forms part of the premises, if necessary using reasonable force;
c
take with him or her any persons and equipment or materials he or she considers necessary for the enforcement of these Regulations;
d
open any container, if necessary using reasonable force;
e
carry out any searches, inspections, measurements and tests;
f
take samples;
g
have access to, and inspect and copy any documents, books or records (in whatever form they are held) which the authorised person has reason to believe may be relevant in connection with the enforcement of these Regulations and remove them to enable them to be copied;
h
photograph or copy anything which the authorised person has reasonable cause to believe may be relevant in connection with the enforcement of these Regulations; and
i
seize any computers and associated equipment for the purpose of copying documents provided that they are returned as soon as practicable.
2
Any person who accompanies an authorised person in accordance with sub-paragraph (1)(c) may perform any of the authorised person’s functions but only under the supervision of that authorised person.
3
Where an authorised person takes samples under sub-paragraph (1)(f) he or she may only take an amount that is reasonably needed for the performance of his or her functions under these Regulations.
4
Nothing in sub-paragraph (1)(g), (h) or (i) shall be taken to compel the production by any person of a document which he or she would be entitled to refuse to produce on grounds of legal professional privilege in proceedings in the High Court in England and Wales, or Northern Ireland, or on grounds of confidentiality of communications in proceedings in the Court of Session in Scotland.
5
An authorised person may require any person to give him or her information as to the formulation, effects or use of any substance.
6
An authorised person performing functions under these Regulations may require a person whom he or she has reasonable cause to believe is able to give information which will assist in the execution of these Regulations —
a
to answer such questions as the authorised person thinks it appropriate to ask; and
b
to sign a declaration of the truth of the answers provided.
7
Any person to whom questions are put under sub-paragraph (6) may nominate a person to be with him or her when he or she answers.
8
When a person answers any such questions the only other persons who may be present, apart from the questioner, are —
a
the person (if any) nominated under sub-paragraph (7); and
b
any person authorised by the authorised person to be present.
9
No answer given by a person in pursuance of a requirement imposed under sub-paragraph (6) shall be admissible in evidence in the United Kingdom against that person, his or her spouse, or his or her civil partner in proceedings for any offence.
Protection of authorised persons
5
An authorised person shall not be liable in any civil or criminal proceedings for anything done in the purported performance of his or her functions as an authorised person if the court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it.
Seizure and disposal of products and requirements to recover
6
1
If an authorised person is of the opinion that a person is committing, has committed or is likely to commit an offence contrary to these Regulations, the authorised person has the power to —
a
seize or dispose of a plant protection product or both, or serve a notice on the holder of any approval, authorisation or permission relating to the plant protection product, the owner of the plant protection product or any other person appearing to be in charge of it requiring him or her to dispose of it; or
b
seize or dispose of anything treated with a plant protection product (“treated item”) or both, or serve a notice on any person appearing to the authorised person to be the owner or the person in charge of anything so treated requiring him or her to dispose of it; or
c
serve a notice on the holder of any approval, authorisation or permission relating to the plant protection product, the owner of the plant protection product or any other person appearing to the authorised person to be in charge of it requiring him or her to take such remedial action as appears to the authorised person to be necessary, including recovery of the plant protection product from the market in the United Kingdom.
2
If an authorised person has exercised his or her power under sub-paragraph (1)(a) or (b) to seize or dispose, or both, he or she must serve a notice on the relevant person informing that person that the power has been exercised.
3
A notice served under this paragraph must be in writing.
4
A notice served under sub-paragraph (1) must give a time limit for compliance with the notice.
5
A notice served under sub-paragraph (1) or (2) must —
a
state that the authorised person is of the opinion that a person is committing, has committed or is likely to commit an offence contrary to these Regulations and specify the offence;
b
specify why the authorised person is of that opinion;
c
identify any plant protection product or treated item to which the notice relates; and
d
state the quantity of any plant protection product or treated item to which the notice relates.
6
An authorised person may withdraw a notice served under this paragraph at any time.
7
An authorised person may serve a person with a notice under this paragraph even if a previous notice served on that person has been withdrawn.
8
In sub-paragraph (2) “relevant person” means —
a
in relation to the seizure, disposal or both of a plant protection product —
i
the holder of any approval, authorisation or permit relating to that plant protection product; or
ii
the owner of the plant protection product; or
iii
any other person appearing to the authorised person to be in charge of it; and
b
in relation to the seizure, disposal or both of a treated item —
i
any person appearing to the authorised person to be the owner of that treated item; or
ii
the person appearing to the authorised person to be in charge of that treated item.
Enforcement notices
7
1
If an authorised person is of the opinion that a person —
a
is committing an offence under regulation 24 by contravening or failing to comply with any paragraph of regulations 8 to 17 or regulation 31; or
b
has committed such an offence in circumstances that make it likely that the offence will be repeated,
he or she may serve on that person a notice that he or she is of that opinion, specifying the offence as to which he or she is of that opinion and directing them to take either of the steps set out in sub-paragraph (2).
2
A notice under sub-paragraph (1) may direct —
a
that any premises on or in which it appears that the offence was being committed or anything which is on or in them, shall be left undisturbed (whether generally or in particular respects) for as long as it appears to be reasonably necessary; or
b
that specific remedial or preventative measures shall be taken.
3
If an authorised person is of the opinion that a person is committing, or is likely to commit, an offence under regulation 24 by contravening or failing to comply with any paragraph of regulations 8 to 17, or regulation 31 he or she may serve on that person a notice —
a
stating that opinion;
b
specifying why he or she is of that opinion; and
c
requiring that person to act in accordance with these Regulations or prohibiting that person from acting in contravention of these Regulations.
4
A notice served under sub-paragraph (1) or (3) must be in writing and must give a time limit for compliance with the notice.
5
An authorised person may withdraw a notice served under sub-paragraph (1) or (3) at any time.
6
An authorised person may serve a person with a notice under sub-paragraph (1) or (3) even if a previous notice served on that person has been withdrawn.
SCHEDULE 4
Service of documents
Regulation 28
1
The provisions of this Schedule apply to the service of a notice or requirement in writing under these Regulations.
2
A notice or requirement may be served on, or given to, a person by —
a
delivering it to that person in person;
b
leaving it at that person’s proper address; or
c
sending it by post or electronic means to that person’s proper address.
3
In the case of a body corporate, a notice or requirement may be served on, or given to, a director of that body.
4
In the case of a partnership, a notice or requirement may be served on, or given to, a partner or a person having control or management of the partnership business.
5
If a person to be served with, or given, a notice or requirement has specified an address in the United Kingdom (other than that person’s proper address) at which that person or someone on that person’s behalf will accept service, that address must also be treated as that person’s proper address.
6
For the purposes of this Schedule, “proper address” means —
a
in the case of a body corporate or its director —
i
the registered or principal office of that body; or
ii
the email address of the secretary or clerk of that body;
b
in the case of a partnership, a partner or person having control or management of the partnership business —
i
the principal office of the partnership; or
ii
the email address of a partner or a person having that control or management;
c
in any other case, a person’s last known address, which includes an email address.
7
In this Schedule, “partnership” includes a Scottish partnership.
SCHEDULE 5
Amendments
Regulation 32(2)
Regulations to be amended Regulation or Schedule to be amended Amendments to be made
The Plant Protection Products Regulations (Northern Ireland) 2011 Regulation 2 After the definition of “the Department” insert —
“premises” includes any place and, in particular, includes —
any vehicle, vessel, aircraft, hovercraft or marine structure; and
any tent or moveable structure;
Schedule 1 paragraph 1(1) For the word “land” substitute —
premises (except any premises used wholly or mainly as a private dwelling)
.
For the words “stored on it” substitute —
stored on or in them or transported or applied by means of them
.
Schedule 1 paragraph 1(2) and 1(3) Omit. Schedule 1 paragraph 1 Sub-paragraph (4) of that Schedule is renumbered as sub-paragraph (2). Schedule 1 paragraph 1 Sub-paragraph (5) of that Schedule is renumbered as sub-paragraph (3). Schedule 1 paragraph 1(3) as renumbered For the word “land” substitute —
premises
.
Schedule 1 paragraph 2(1) Substitute —
1
A lay magistrate may issue a warrant permitting an authorised person to enter any premises if necessary by reasonable force for the purposes of the enforcement of these Regulations if satisfied that the authorised person has reasonable grounds for requiring entry and any of the conditions set out in sub-paragraph 2(1A) are satisfied.
.
Schedule 1 paragraph 2 After paragraph 2(1) insert —
1A
The conditions referred to in paragraph 2(1) are that —
a
admission has been refused, or a refusal is expected, and (in either case) that notice to apply for a warrant has been given to the occupier;
b
asking for admission, or the giving of such a notice, would defeat the object of the entry;
c
the case is one of urgency; or
d
the premises are unoccupied or the occupier is temporarily absent.
Schedule 1 paragraph 2(3) Substitute —
3
An application for a warrant under paragraph 2(1), where the condition satisfied is set out at paragraph 2(1A)(a), must be made on notice and on sworn complaint in writing and, where the condition satisfied is set out in paragraph 2(1A)(b), (c) or (d), must be made without notice on sworn complaint in writing.
Schedule 1 paragraph 2(5)(d) Substitute —
the address of the premises to be entered and searched; and
.
Schedule 1 paragraph 3(2) For the words “private dwelling which is” substitute —
premises
.
Schedule 1 paragraph 3(3), 3(4) and 3(9) Each time the words “private dwelling” appear, substitute —
premises
.
Schedule 1 paragraph 3(3) and 3(4) Each time the word “land” appears, substitute —
premises
.
Schedule 1 paragraph 4(1) Substitute —
1
An authorised person exercising powers of entry pursuant to paragraph 1(1), or in accordance with a warrant granted under paragraph 2(1), may —
a
search for any item, if necessary using reasonable force;
b
open or examine, or both, anything that is on, attached to or otherwise forms part of the premises, if necessary using reasonable force;
c
take with him or her any persons and equipment or materials he or she considers necessary for the enforcement of these Regulations;
d
open any container, if necessary using reasonable force;
e
carry out any searches, inspections, measurements and tests;
f
take samples;
g
have access to, and inspect and copy any documents, books or records (in whatever form they are held) which the authorised person has reason to believe may be relevant in connection with the enforcement of these Regulations and remove them to enable them to be copied;
h
photograph or copy anything which the authorised person has reasonable cause to believe may be relevant in connection with the enforcement of these Regulations; and
i
seize any computers and associated equipment for the purpose of copying documents provided that they are returned as soon as practicable.”
Schedule 1 paragraph 4(2) For “paragraph 4(1)(a)” substitute —
paragraph 4(1)(c)
.
Schedule 1 paragraph 4(3) For “paragraph 4(1)(d)” substitute —
paragraph 4(1)(f)
.
Schedule 1 paragraph 4(4) For “paragraph 4(1)(e), (f) or (g)” substitute —
paragraph 4(1)(g), (h) or (i)
.
Schedule 1 paragraph 5 Omit. Schedule 1 paragraph 8(2)(a) For the words “land, vehicle, vessel, aircraft, hovercraft or marine structure” substitute —
premises
.
The Plant Protection Products Regulations 2011 Regulation 2(1) After the definition of “authorised person” insert —
“premises” includes any place and, in particular, includes —
any vehicle, vessel, aircraft, hovercraft or marine structure; and
any tent or moveable structure;.
Regulation 6 Regulation 6 is renumbered as paragraph (1) of that regulation.
After paragraph (1) as so renumbered insert —
2
The Secretary of State may delegate to the Director of Public Prosecutions functions in relation to the prosecution of offences under these Regulations in so far as those functions relate to offences committed in England.
.
Schedule 1 paragraph 1(1) For the word “land” substitute —
premises (except any premises used wholly or mainly as a private dwelling)
For the words “stored on it” insert —
stored on or in them or transported on or applied by means of them
.
Schedule 1 paragraph 1(2) and 1(3) Omit. Schedule 1 paragraph 1 Sub-paragraph (4) of that Schedule is renumbered as sub-paragraph (2). Schedule 1 paragraph 1 Sub-paragraph (5) of that Schedule is renumbered as sub-paragraph (3). Schedule 1 paragraph 1(3) as renumbered For the word “land” substitute —
premises
.
Schedule 1 paragraph 2(1) Substitute —
1
A justice of the peace in England and Wales, or a sheriff, stipendiary magistrate or justice of the peace in Scotland, may issue a warrant permitting an authorised person to enter any premises if necessary by reasonable force, for the purposes of the enforcement of these Regulations if satisfied that the authorised person has reasonable grounds for requiring entry and any of the conditions set out in paragraph 2(1A) are satisfied.
.
After paragraph 2(1) insert —
1A
The conditions referred to in sub-paragraph (1) are that —
a
admission has been refused, or a refusal is expected, and (in either case) that notice to apply for a warrant has been given to the occupier;
b
asking for admission, or the giving of such a notice, would defeat the object of the entry;
c
the case is one of urgency; or
d
the premises are unoccupied or the occupier is temporarily absent.
.
Schedule 1 paragraph 2(4) Substitute —
4
An application for a warrant under paragraph 2(1), where the condition satisfied is set out at paragraph 2(1A)(a), must be made on notice and, where the condition satisfied is set out in paragraph 2(1A)(b), (c) or (d), must be made without notice.
Schedule 1 paragraph 2(7)(d) Substitute —
the address of the premises to be entered and searched; and
.
Schedule 1 paragraph 3(2) For the words “private dwelling which is” substitute —
premises
Schedule 1 paragraph 3(3), 3(4) and 3(10) Each time the words “private dwelling” appear, substitute —
premises
.
Schedule 1 paragraph 3(3) and 3(4) Each time the word “land” appears, substitute —
premises
.
Schedule 1 paragraph 4(1) Substitute —
1
An authorised person exercising powers of entry pursuant to paragraph 1(1), or in accordance with a warrant granted under paragraph 2(1), may —
a
search for any item, if necessary using reasonable force;
b
open or examine, or both, anything that is on, attached to or otherwise forms part of the premises, if necessary using reasonable force;
c
take with him or her any persons and equipment or materials he or she considers necessary for the enforcement of these Regulations;
d
open any container, if necessary using reasonable force;
e
carry out any searches, inspections, measurements and tests;
f
take samples;
g
have access to, and inspect and copy any documents, books or records (in whatever form they are held) which the authorised person has reason to believe may be relevant in connection with the enforcement of these Regulations and remove them to enable them to be copied;
h
photograph or copy anything which the authorised person has reasonable cause to believe may be relevant in connection with the enforcement of these Regulations; and
i
seize any computers and associated equipment for the purpose of copying documents provided that they are returned as soon as practicable.”
Schedule 1 paragraph 4(2) For “paragraph 4(1)(a)” substitute —
paragraph 4(1)(c)
.
Schedule 1 paragraph 4(3) For “paragraph4(1)(d)” substitute —
paragraph 4(1)(f)
.
Schedule 1 paragraph 4(4) For “paragraph 4(1)(e), (f) or (g)” substitute —
paragraph 4(1)(g), (h) or (i)
.
Schedule 1 paragraph 5 Omit. Schedule 1 paragraph 8(1)(a) and 8(3) For the words “under regulations 9 to 19” substitute —
under regulation 23 by contravening or failing to comply with any paragraph of regulations 9 to 19
.
Schedule 1 paragraph 8(1)(b) For the word “unlikely” substitute —
likely
.
Schedule 1 paragraph 8(2)(a) For the words “land, vehicle, vessel, aircraft, hovercraft or marine structure” substitute —
premises
. |
Finance Act 2012
W E, Your Majesty’s most dutiful and loyal subjects, the Commons of the United Kingdom in Parliament assembled, towards raising the necessary supplies to defray Your Majesty’s public expenses, and making an addition to the public revenue, have freely and voluntarily resolved to give and to grant unto Your Majesty the several duties hereinafter mentioned; and do therefore most humbly beseech Your Majesty that it may be enacted, and be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: —
PART 1
Income tax, corporation tax and capital gains tax
CHAPTER 1
Income tax and corporation tax charges and rate bands
Income tax
Charge for 2012-13 and rates for 2012-13 and subsequent tax years
1
1
Income tax is charged for the tax year 2012-13, and for that tax year —
a
the basic rate is 20%,
b
the higher rate is 40%, and
c
the additional rate is 50%.
2
For the tax year 2013-14 —
a
the basic rate is 20%,
b
the higher rate is 40%, and
c
the additional rate is 45%.
3
In Chapter 2 of Part 2 of ITA 2007 (rates at which income tax is charged) —
a
in section 8(3) (dividend additional rate), for “42.5%” substitute “37.5%”,
b
in section 9(1) (trust rate), for “50%” substitute “45%”, and
c
in section 9(2) (dividend trust rate), for “42.5%” substitute “37.5%”.
4
In section 394 of ITEPA 2003 (charge on relevant benefits provided under employer-financed retirement benefits scheme), in subsection (4) for “50%” substitute “45%”.
5
In section 640 of ITTOIA 2005 (capital sums treated as income of the settlor: grossing-up of deemed income), in subsection (6)(b) —
a
omit the “and” at the end of sub-paragraph (ii),
b
in sub-paragraph (iii) for “or any subsequent tax year.” substitute “, 2011-12 or 2012-13, and”, and
c
after that sub-paragraph insert —
iv
45%, if the relevant year is the year 2013-14 or any subsequent tax year.
6
The amendments made by subsections (3) to (5) have effect for the tax year 2013-14 and subsequent tax years.
Basic rate limit for 2012-13
2
1
For the tax year 2012-13 the amount specified in section 10(5) of ITA 2007 (basic rate limit) is replaced with “£34,370”.
2
Accordingly section 21 of that Act (indexation of limits), so far as relating to the basic rate limit, does not apply for that tax year.
Personal allowance for 2012-13 for those aged under 65
3
1
For the tax year 2012-13 the amount specified in section 35(1) of ITA 2007 (personal allowance for those aged under 65) is replaced with “£8,105”.
2
Accordingly section 57 of that Act (indexation of allowances), so far as relating to the amount specified in section 35(1) of that Act, does not apply for that tax year.
Personal allowances from 2013
4
1
Chapter 2 of Part 3 of ITA 2007 (personal allowance etc) is amended in accordance with subsections (2) to (6).
2
In section 35 (personal allowance for those aged under 65) —
a
in subsection (1), for paragraph (a) substitute —
a
was born after 5 April 1948, and
, and
b
in the heading for “ aged under 65 ” substitute “ born after 5 April 1948 ”.
3
In section 36 (personal allowance for those aged 65 to 74) —
a
for subsection (1) substitute —
1
An individual who makes a claim is entitled to a personal allowance of £10,500, or (if greater) the section 35 amount, for a tax year if the individual —
a
was born after 5 April 1938 but before 6 April 1948, and
b
meets the requirements of section 56 (residence etc).
,
b
in subsection (2) —
i
for “For” substitute “If the allowance under subsection (1) is greater than the section 35 amount, for”,
ii
in paragraph (a), for “half the excess” substitute “an amount equal to half of that excess income”, and
iii
in paragraph (b), for the words from “amount” to the end substitute “section 35 amount.”,
c
after that subsection insert —
2A
In this section “the section 35 amount” means the amount of any allowance to which the individual would be entitled under section 35 for the tax year if the individual had been born after 5 April 1948.
, and
d
in the heading for “ aged 65 to 74 ” substitute “ born after 5 April 1938 but before 6 April 1948 ”.
4
In section 37 (personal allowance for those aged 75 and over) —
a
for subsection (1) substitute —
1
An individual who makes a claim is entitled to a personal allowance of £10,660, or (if greater) the section 35 amount, for a tax year if the individual —
a
was born before 6 April 1938, and
b
meets the requirements of section 56 (residence etc).
,
b
in subsection (2) —
i
for “For” substitute “If the allowance under subsection (1) is greater than the section 35 amount, for”,
ii
in paragraph (a), for “half the excess” substitute “an amount equal to half of that excess income”, and
iii
in paragraph (b), for the words from “amount” to the end substitute “section 35 amount.”,
c
after that subsection insert —
2A
In this section “the section 35 amount” means the amount of any allowance to which the individual would be entitled under section 35 for the tax year if the individual had been born after 5 April 1948.
, and
d
in the heading for “ aged 75 and over ” substitute “ born before 6 April 1938 ”.
5
In section 41 (allowances in year of death), omit subsections (2) and (3).
6
In section 57 (indexation of allowances) —
a
in subsection (1) —
i
in paragraph (a) for “aged under 65” substitute “born after 5 April 1948”, and
ii
omit paragraphs (b) and (c), and
b
in subsection (3)(a), for “, 36(1), 37(1),” substitute “and”.
7
In section 508A of ICTA (contemplative religious communities: profits exempt from corporation tax), in subsections (5) and (9)(b) for “under 65” substitute “born after 5 April 1948”.
8
The amendments made by this section have effect for the tax year 2013-14 and subsequent tax years.
Corporation tax
Main rate of corporation tax for financial year 2012
5
1
In section 5(2)(a) of FA 2011 (main corporation tax rate for financial year 2012 on profits other than ring fence profits), for “25%” substitute “24%”.
2
The amendment made by this section is treated as having come into force on 1 April 2012.
Charge and main rate for financial year 2013
6
1
Corporation tax is charged for the financial year 2013.
2
For that year the rate of corporation tax is —
a
23% on profits of companies other than ring fence profits, and
b
30% on ring fence profits of companies.
3
In subsection (2) “ring fence profits” has the same meaning as in Part 8 of CTA 2010 (see section 276 of that Act).
Small profits rate and fractions for financial year 2012
7
1
For the financial year 2012 the small profits rate is —
a
20% on profits of companies other than ring fence profits, and
b
19% on ring fence profits of companies.
2
For the purposes of Part 3 of CTA 2010, for that year —
a
the standard fraction is 1/100th, and
b
the ring fence fraction is 11/400ths.
3
In subsection (1) “ring fence profits” has the same meaning as in Part 8 of that Act (see section 276 of that Act).
CHAPTER 2
Income tax: general
Child benefit
High income child benefit charge
8
Schedule 1 contains provision for and in connection with a high income child benefit charge.
Anti-avoidance
Post-cessation trade or property relief: tax-generated payments or events
9
1
Part 4 of ITA 2007 (loss relief) is amended as follows.
2
In section 96(7) (post-cessation trade relief), after paragraph (b) insert —
ba
section 98A (denial of relief for tax-generated payments or events),
.
3
After section 98 insert —
Denial of relief for tax-generated payments or events
98A
1
Post-cessation trade relief is not available to a person in respect of a payment or an event which is made or occurs directly or indirectly in consequence of, or otherwise in connection with, relevant tax avoidance arrangements (and, accordingly, no section 261D claim may be made in respect of the payment or event).
2
For this purpose “relevant tax avoidance arrangements” means arrangements —
a
to which the person is a party, and
b
the main purpose, or one of the main purposes, of which is the obtaining of a reduction in tax liability as a result of the availability of post-cessation trade relief (whether by making a claim for that relief or a section 261D claim).
3
In this section —
a
“arrangements” includes any agreement, understanding, scheme, transaction or series of transactions (whether or not legally enforceable), and
b
“section 261D claim” means a claim under section 261D of TCGA 1992.
4
In section 125(6) (post-cessation property relief), after paragraph (b) insert —
ba
section 98A (denial of relief for tax-generated payments or events),
.
5
The amendments made by subsections (2) and (3) have effect in relation to —
a
payments which are made on or after 12 January 2012 except where they are made pursuant to an unconditional obligation in a contract made before that date, or
b
events which occur on or after that date.
6
The amendment made by subsection (4) has effect in relation to —
a
payments which are made on or after 13 March 2012 except where they are made pursuant to an unconditional obligation in a contract made before that date, or
b
events which occur on or after that date.
7
In subsections (5)(a) and (6)(a) “an unconditional obligation” means an obligation which may not be varied or extinguished by the exercise of a right (whether under the contract or otherwise).
8
For the purposes of subsections (5)(b) and (6)(b) section 98 of ITA 2007 applies for determining when an event occurs.
Property loss relief against general income: tax-generated agricultural expenses
10
1
Chapter 4 of Part 4 of ITA 2007 (losses from property businesses) is amended as follows.
2
In section 117(3) (overview of Chapter), for “section 127A” substitute “sections 127A and 127B”.
3
In section 120(7) (deduction of property losses from general income), at the end insert “and section 127B (no relief for tax-generated agricultural expenses)”.
4
After section 127A insert —
No relief for tax-generated agricultural expenses
127B
1
This section applies if —
a
in a tax year a person makes a loss in a UK property business or overseas property business (whether carried on alone or in partnership),
b
the business has a relevant agricultural connection for the purposes of section 120 (see section 123(3) to (7)), and
c
any allowable agricultural expenses deducted in calculating the loss arise directly or indirectly in consequence of, or otherwise in connection with, relevant tax avoidance arrangements.
2
No property loss relief against general income may be given to the person for so much of the applicable amount of the loss as is attributable to expenses falling within subsection (1)(c) .
3
For the purposes of subsection (2) , the applicable amount of the loss is to be treated as attributable to expenses falling within subsection (1)(c) before anything else.
4
In subsection (1) “relevant tax avoidance arrangements” means arrangements —
a
to which the person is a party, and
b
the main purpose, or one of the main purposes, of which is the obtaining of a reduction in tax liability by means of property loss relief against general income.
5
In subsection (4) “arrangements” includes any agreement, understanding, scheme, transaction or series of transactions (whether or not legally enforceable).
6
In this section “the applicable amount of the loss” has the meaning given by section 122 and “allowable agricultural expenses” has the meaning given by section 123.
5
The amendments made by this section have effect in relation to expenses arising directly or indirectly in consequence of, or otherwise in connection with —
a
arrangements which are entered into on or after 13 March 2012, or
b
any transaction forming part of arrangements which is entered into on or after that date.
6
But those amendments do not have effect where the arrangements are, or any such transaction is, entered into pursuant to an unconditional obligation in a contract made before that date.
7
“An unconditional obligation” means an obligation which may not be varied or extinguished by the exercise of a right (whether under the contract or otherwise).
Gains from contracts for life insurance etc
11
1
In Chapter 9 of Part 4 of ITTOIA 2005 (gains from contracts for life insurance etc), after section 473 insert —
Connected policies or contracts treated as single policy or contract
473A
1
Policies or contracts which are connected with each other are treated as a single policy or contract for the purposes of this Chapter.
2
A policy or contract is “connected” with another policy or contract if —
a
they meet the condition in subsection (3) in relation to each other, and
b
the terms on which either of them is issued are significantly more or less favourable than would reasonably be expected if the other were ignored or any policy or contract meeting the condition in that subsection in relation to either of them were ignored.
3
A policy or contract meets the condition in this subsection in relation to another policy or contract if —
a
they are at any time simultaneously in force, and
b
either of them is issued with reference to the other or with a view to enabling the other to be issued on particular terms or facilitating its being issued on those terms.
4
If —
a
there is a policy or contract (“A”) with which two or more other policies or contracts are connected as a result of subsection (2) , but
b
the other policies or contracts are not connected with each other as a result of that subsection,
A and the other policies or contracts are (as a result of this subsection) to be regarded as “connected” with each other.
2
In section 491(2) of that Act (calculating gains from contracts for life insurance etc: general rules), in the definition of “PG”, at the end insert “but only in so far as those gains have been, or fall to be, taken into account in calculating the total income of a person as a result of this Chapter or Chapter 2 of Part 13 of ITA 2007”.
3
In section 552 of ICTA (information: duty of insurers), for subsection (13) substitute —
13
For the purposes of this section —
a
section 491(2) of ITTOIA 2005 is taken to have effect as if, in the definition of “PG”, the words from “but” to the end were omitted, and
b
no account is to be taken of the effect of section 541A of that Act.
4
The amendments made by this section have effect in relation to —
a
any policy issued in respect of an insurance made on or after 21 March 2012, or
b
any contract made on or after that date.
5
The amendments made by this section also have effect in the case of any insurance or contract made before 21 March 2012 if on or after that date —
a
the policy or contract is varied with the result that there is an increase in the benefits secured,
b
there is an assignment of rights, or a share of the rights, conferred by the policy or contract (whether or not for money’s worth), or
c
some or all of the rights conferred by the policy or contract become held as security for a debt.
6
For the purposes of subsection (5)(a) —
a
an exercise of rights conferred by a policy or contract is to count as a variation of the policy or contract, and
b
the reference to an increase in the benefits secured by a policy or contract includes an increase in the benefits secured by another policy or contract with which the policy or contract is connected (within the meaning given by section 473A of ITTOIA 2005, as inserted by subsection (1) ).
Settlements: income originating from settlors other than individuals
12
1
ITTOIA 2005 is amended as follows.
2
In section 627 (income where settlor retains an interest: exceptions), at the end insert —
4
The rule in section 624(1) does not apply in relation to income which —
a
arises under a settlement, and
b
originates from any settlor who was not an individual.
3
In section 645 (property or income originating from settlor), in subsection (2), for “section 644” substitute “sections 627 and 644”.
4
The amendments made by this section have effect in relation to income arising on or after 21 March 2012.
Reliefs
Champions League final 2013
13
1
No liability to income tax arises in respect of any income from the 2013 Champions League final that arises to a person who is —
a
an employee or contractor of an overseas team that competes in the final, and
b
non-UK resident at the time of the final.
2
The reference in subsection (1) to income from the 2013 Champions League final is to income related to duties or services performed by the person in the United Kingdom in connection with the final.
3
The exemption under subsection (1) does not apply to —
a
income that arises as a result of a contract entered into after the final, or of any amendment, after the final, of a contract entered into before the end of the final, or
b
income that is the subject of tax avoidance arrangements.
4
Income is the subject of tax avoidance arrangements if —
a
arrangements have been made which, but for subsection (3)(b), would result in a person obtaining an exemption under subsection (1) for the income, and
b
those arrangements, or other arrangements of which they form part, have as their main purpose, or one of their main purposes, the obtaining of that exemption.
5
Section 966 of ITA 2007 (deduction of sums representing income tax) does not apply to any payment or transfer which gives rise to income benefiting from the exemption under subsection (1).
6
In this section —
“the 2013 Champions League final” means the final of the UEFA Champions League 2012/2013 competition held in England in 2013;
“contractor”, in relation to an overseas team, means an individual who is not an employee of the team but who performs services for the team —
under the terms of a contract with the team, or
under the terms of a contract, or that individual’s employment, with a company which is a member of the same group of companies as the team (within the meaning given by section 152 of CTA 2010);
“employee” and “employment” are to be read in accordance with section 4 of ITEPA 2003;
“income” means employment income or profits of a trade, profession or vocation (including profits treated as arising as a result of section 13 or 14 of ITTOIA 2005);
“overseas team” means a football club which is not a member of the Football Association, the Scottish Football Association, the Football Association of Wales or the Irish Football Association.
Cars: security features not to be regarded as accessories
14
1
ITEPA 2003 is amended as follows.
2
In section 125 (meaning of “accessory” and related terms) after subsection (3) insert —
3A
Subsection (2) needs to be read with section 125A (security features not to be regarded as accessories).
3
After that section insert —
Security features not to be regarded as accessories
125A
1
This section applies where a car made available to an employee has a relevant security feature.
2
The relevant security feature is not an accessory for the purposes of this Chapter if it is provided in order to meet a threat to the employee’s personal physical security which arises wholly or mainly because of the nature of the employee’s employment.
3
In this section “relevant security feature” means —
a
armour designed to protect the car’s occupants from explosions or gunfire,
b
bullet-resistant glass,
c
any modification to the car’s fuel tank designed to protect the tank’s contents from explosions or gunfire (including by making the tank self-sealing), and
d
any modification made to the car in consequence of anything which is a relevant security feature by virtue of paragraph (a), (b) or (c).
4
The Treasury may by regulations amend the definition of “relevant security feature” in subsection (3).
4
In Part 2 of Schedule 1 (index of defined expressions), in the entry for “accessory”, in the second column for “section 125(2)” substitute “sections 125(2) and 125A(2)”.
5
The amendments made by this section have effect for the tax year 2011-12 and subsequent tax years.
Termination payments to MPs ceasing to hold office
15
1
In section 291 of ITEPA 2003 (exemptions: termination payments to MPs and others ceasing to hold office), for subsection (2)(a) substitute —
a
made under section 5(1) of the Parliamentary Standards Act 2009 in connection with a person’s ceasing to be a member of the House of Commons,
.
2
The amendment made by this section has effect in relation to grants and payments made on or after 1 April 2012.
Employment income exemptions: armed forces
16
1
Chapter 8 of Part 4 of ITEPA 2003 (exemptions: special kinds of employees) is amended as follows.
2
In section 297A (exemption for Operational Allowance), in subsection (2), for “by the Secretary of State” substitute “under a Royal Warrant made under section 333 of the Armed Forces Act 2006”.
3
In section 297B (exemption for Council Tax Relief), in subsection (2), for “by the Secretary of State” substitute “under a Royal Warrant made under section 333 of the Armed Forces Act 2006”.
4
After that section insert —
Armed forces: Continuity of Education Allowance
297C
1
No liability to income tax arises in respect of payments of the Continuity of Education Allowance to or in respect of members of the armed forces of the Crown during their employment under the Crown or after their deaths.
2
The Continuity of Education Allowance is an allowance designated as such under a Royal Warrant made under section 333 of the Armed Forces Act 2006.
5
The amendments made by this section have effect in relation to payments made on or after 6 April 2012.
Other provisions
Taxable benefits: “the appropriate percentage” for cars for 2014-15
17
1
In section 139 of ITEPA 2003 (car with a CO 2 emissions figure: the appropriate percentage), for subsections (2) and (3) substitute —
2
If the car’s CO 2 emissions figure is less than the relevant threshold for the year, the appropriate percentage for the year is —
a
if the car’s CO 2 emissions figure for the year does not exceed 75 grams per kilometre driven, 5%, and
b
otherwise, 11%.
3
If the car’s CO 2 emissions figure is equal to the relevant threshold for the year, the appropriate percentage for the year is 12% (“the threshold percentage”).
2
The amendment made by this section has effect for the tax year 2014-15 and subsequent tax years.
Qualifying time deposits
18
1
In section 866 of ITA 2007 (qualifying time deposits), in subsection (1), after “deposit” insert “made before 6 April 2012”.
2
The amendment made by this section is treated as having come into force on 6 April 2012.
CHAPTER 3
Corporation tax: general
Support for business
Profits arising from the exploitation of patents etc
19
Schedule 2 contains provision about the treatment for corporation tax purposes of profits arising from the exploitation of patents etc.
Relief for expenditure on R&D
20
Schedule 3 contains provision about corporation tax relief for expenditure on research and development.
Real estate investment trusts
21
Schedule 4 amends Part 12 of CTA 2010 (real estate investment trusts).
Anti-avoidance
Treatment of the receipt of manufactured overseas dividends
22
1
Part 17 of CTA 2010 (manufactured payments and repos) is amended as follows.
2
In section 793 (company receiving manufactured overseas dividend from UK resident etc: amount treated as withheld on account of overseas tax), after subsection (7) insert —
8
If, in accordance with this section, the amount mentioned in section 792(3)(b) is not the amount deducted under section 922(2) of ITA 2007, nothing in the Tax Acts is to be read as having the effect that, in relation to the persons mentioned in section 792(2) for the purposes mentioned there, the difference between those amounts is to be regarded as an amount on account of income tax.
3
In section 812 (deemed manufactured payments: stock lending arrangements), after subsection (5) insert —
5A
Where section 792 or 794 has effect in accordance with subsection (4) or (5), nothing in the Tax Acts is to be read as having the effect that, in relation to the persons mentioned in section 792(2) or 794(2) for the purposes mentioned there, the amount that would otherwise have been treated as an amount withheld on account of overseas tax is to be regarded as an amount on account of income tax.
4
The amendments made by this section have effect in relation to overseas dividends (within the meaning of Part 17 of CTA 2010) paid on or after 15 September 2011.
Loan relationships: debts becoming held by connected company
23
1
Chapter 6 of Part 5 of CTA 2009 (loan relationships: connected companies and impairment losses and releases of debt) is amended as follows.
2
In section 362 (parties becoming connected where creditor’s rights subject to impairment adjustment) —
a
in subsection (1) —
i
omit paragraph (c) (impairment in pre-connection carrying value of creditor’s loan relationship), and
ii
omit the “and” before that paragraph and, at the end of paragraph (a), insert “and”,
b
for subsections (3) and (4) substitute —
3
The amount treated as released is the amount (if any) by which the pre-connection carrying value in D’s accounts exceeds the pre-connection carrying value in C’s accounts.
4
In subsection (3) —
“the pre-connection carrying value in D’s accounts” means the amount that would be the carrying value of the liability representing the loan relationship in D’s accounts if a period of account had ended immediately before C and D became connected, and
“the pre-connection carrying value in C’s accounts” means —
in any case where C was a party to the loan relationship as creditor on the last day of the period of account ending immediately before the one in which C and D became connected, the cost of the asset representing the loan relationship which would be given on that day on an amortised cost basis of accounting, and
in any other case, the amount or value of any consideration given by C for the acquisition of the asset representing the loan relationship.”, and
c
in subsection (5) —
i
in the opening words, for “the carrying value is determined taking no account of — ” substitute “no account is to be taken of — ”,
ii
at the end of paragraph (a) insert “or”, and
iii
omit paragraph (c) (together with the “or” before that paragraph), and
d
in the heading, at the end insert “ etc ”.
3
After section 363 insert —
Arrangements for avoiding section 361 or 362
363A
1
This section applies in any case where arrangements are entered into and the main purpose, or one of the main purposes, of any party in entering into them (or any part of them) is —
a
to avoid an amount being treated as released under section 361 or 362, or
b
to reduce the amount which is treated as released under section 361 or 362.
2
The arrangements (or part of the arrangements) are not to achieve that effect (so that an amount, or a greater amount, falls to be treated as released under section 361 or 362).
3
In this section “arrangements” includes any agreement, understanding, scheme, transaction or series of transactions (whether or not legally enforceable).
4
The amendments made by subsection (2) have effect as follows —
a
the amendments made by paragraphs (a) , (b) and (d) have effect in relation to any case where the companies become connected on or after 27 February 2012, but if the companies become connected on or after that date but before 1 April 2012 section 362 of CTA 2009 has effect as if the following were substituted for subsections (3) and (4) of that section —
3
The amount treated as released is whichever is the greater of the following amounts —
a
the amount (if any) that the pre-connection carrying value in C’s accounts would have been adjusted for impairment if a period of account had ended immediately before the companies became connected, and
b
the amount (if any) by which the pre-connection carrying value in D’s accounts exceeds the pre-connection carrying value in C’s accounts.
4
In subsection (3) “the pre-connection carrying value”, in relation to C’s accounts or D’s accounts, means the amount that would be the carrying value of the asset or liability representing the loan relationship in the accounts if a period of account had ended immediately before the companies became connected.”, and
b
the amendments made by paragraph (c) have effect in relation to any case where the companies become connected on or after 1 April 2012,
and section 363 of CTA 2009 applies for the purposes of this subsection as it applies for the purposes of sections 361 to 362 of that Act.
5
The amendment made by subsection (3) has effect in relation to —
a
arrangements entered into on or after 27 February 2012, or
b
arrangements entered into before that date where the amount is treated as released, or would have been treated as released, on or after that date.
6
But subsection (5)(b) does not apply if the amount is treated as released, or would have been treated as released, pursuant to an unconditional obligation in a contract made before 27 February 2012.
7
An “unconditional” obligation is one which may not be varied or extinguished by the exercise of a right (whether under the contract or otherwise).
8
The conditions in section 361(1)(a) to (c) of CTA 2009 are treated as met (and the remaining provisions of that section have effect accordingly) in any case where —
a
arrangements are entered into by any party at any time,
b
directly or indirectly in consequence of, or otherwise in connection with, those arrangements a company (“C”) becomes a party to a loan relationship as creditor,
c
the time at which C becomes a party to the loan relationship falls on or after 1 December 2011 but before 27 February 2012,
d
directly or indirectly in consequence of, or otherwise in connection with, those arrangements C subsequently becomes connected with another company (“D”) which is a party to the loan relationship as debtor, and
e
that subsequent time falls before 27 February 2012.
9
For the purposes of subsection (8) —
a
“arrangements” includes any agreement, understanding, scheme, transaction or series of transactions (whether or not legally enforceable), and
b
the reference to C becoming connected with D is to be read in accordance with section 363 of CTA 2009.
10
Subsections (8) and (9) are to have effect as if they were contained in Part 5 of CTA 2009 (and the cases in which section 361 of CTA 2009 has effect in accordance with subsection (8) include any case where C or D is a member of a firm which becomes or is a party to the loan relationship and in that case references to C or D (other than references to the connection which C or D has with a company) are references to the firm).
11
For the purpose of applying section 361 of CTA 2009 in accordance with subsection (8) no account is to be taken of anything done on or after 27 February 2012.
12
If section 361 of CTA 2009 has effect in accordance with subsection (8) , section 362 of that Act does not apply.
Companies carrying on businesses of leasing plant or machinery
24
1
CTA 2010 is amended as follows.
2
In section 385 (sales of lessors: no carry back of the expense) —
a
for subsections (2) and (3) substitute —
2
No part of a loss may be deducted under section 37(3)(b) (relief for trade losses against total profits of earlier accounting periods) from so much of the company’s total profits as derive from the income.
3
For the purpose of determining how much of those profits derive from the income, those profits are to be calculated on the basis that the income is the final amount to be added.
, and
b
in the heading, for “ No carry back of the expense ” substitute “ No carry back of loss against the income ”.
3
In section 392 (sales of lessors: “relevant change in relationship”), at the end insert “or section 394ZA (company joining tonnage tax group)”.
4
After section 394 insert —
Company joining tonnage tax group
394ZA
There is a relevant change in the relationship between A and a principal company of A on any day if —
a
on that day A becomes a member of a tonnage tax group for the purposes of Schedule 22 to FA 2000 without entering tonnage tax on that day, or
b
the day ends immediately before the day on which, for the purposes of that Schedule, A both becomes a member of a tonnage tax group and enters tonnage tax.
5
In section 394A (sales of lessors: “qualifying change of ownership”) —
a
the existing text becomes subsection (1), and
b
after that subsection insert —
2
If the qualifying change of ownership would (but for this subsection) occur on any day as a result of —
a
section 393 or 394ZA, or
b
section 394 or 394ZA,
it is treated instead for the purposes of the sales of lessors Chapters as occurring on that day solely as a result of section 394ZA.
6
In section 427 (sales of lessors: no carry back of the expense) —
a
for subsections (2) and (3) substitute —
2
No part of a loss may be deducted under section 37(3)(b) (relief for trade losses against total profits of earlier accounting periods) from so much of the company’s total profits as derive from the income.
3
For the purpose of determining how much of those profits derive from the income, those profits are to be calculated on the basis that the income is the final amount to be added.
, and
b
in the heading, for “ No carry back of the expense ” substitute “ No carry back of loss against the income ”.
7
In section 950 (transfers of trade without a change of ownership: transfers of trade involving business of leasing plant or machinery), after subsection (3) insert —
3A
For the purposes of subsection (2)(a) the principal company or companies of the predecessor immediately before the transfer are not to be regarded as the same as the principal company or companies of the successor immediately afterwards (so far as they would otherwise have been so regarded) if —
a
there is a relevant change in the relationship between the successor and a principal company of the successor within section 394ZA (company joining tonnage tax group), and
b
that change occurs on or before the transfer day (whether the change occurs on or after 21 March 2012 or before that date).
8
In Schedule 22 to FA 2000 (tonnage tax), after paragraph 79 insert —
79A
1
This paragraph applies if —
a
a balancing charge under this Part of this Schedule arises to the company on the disposal of any plant or machinery, and
b
the plant or machinery is taken into account in calculating income that the company is treated as receiving under section 383 or 417 of the Corporation Tax Act 2010 (sales of lessors) as a result of section 394ZA of that Act (company joining tonnage tax group).
2
The balancing charge is to be reduced by the relevant part of the sales of lessors expense so far as relief has not previously been given for that expense (whether under this sub-paragraph or otherwise).
3
“The sales of lessors expense” means —
a
the expense which the company is treated as incurring under section 383 or 417 of the Corporation Tax Act 2010 as a result of section 394ZA of that Act, or
b
if section 386 or 419 of that Act applies or has applied, the expense which derives from the expense within paragraph (a).
4
If the sales of lessors expense is incurred at a time when the company is in tonnage tax, the “relevant part” of that expense is so much of it as, on a just and reasonable basis, is attributable to the matters set out in paragraph 56(1)(a) or (b).
5
If —
a
the sales of lessors expense is not incurred at a time when the company is in tonnage tax,
b
that expense is taken into account in calculating a loss made by the company in a trade, and
c
the loss is one to which paragraph 56 applies,
the “relevant part” of the sales of lessors expense is so much of the apportioned loss as, on a just and reasonable basis, is derived from the sales of lessors expense.
6
The reference here to the apportioned loss is to the loss that is attributable to the matters set out in paragraph 56(1)(a) or (b).
9
The amendments made by subsections (2) and (6) have effect —
a
where the income arises as a result of a company becoming a member of a tonnage tax group on or after 21 March 2012 and entering tonnage tax at the same time,
b
where the income arises as a result of a company becoming a member of a tonnage tax group on or after 23 April 2012 without entering tonnage tax at the same time, or
c
where the relevant day is on or after 21 March 2012 (in any case not within paragraph (a) or (b)).
10
The amendments made by subsections (3) to (5) and (8) have effect —
a
where a company becomes a member of a tonnage tax group on or after 21 March 2012 and enters tonnage tax at the same time, or
b
where a company becomes a member of a tonnage tax group on or after 23 April 2012 without entering tonnage tax at the same time.
11
The amendment made by subsection (7) has effect —
a
except in a case within paragraph (b), where the transfer day is on or after 21 March 2012, and
b
in a case where the relevant change in the relationship occurs as a result of a company becoming a member of a tonnage tax group without entering tonnage tax at the same time, where the transfer day is on or after 23 April 2012.
Insurance
Corporate members of Lloyd’s: stop-loss insurance and quota share contracts
25
1
In section 225 of FA 1994 (corporate members of Lloyd’s: stop-loss and quota share insurance), after subsection (3B) insert —
3C
Subsection (3D) applies to any premium which is payable by a corporate member under a stop-loss insurance taken out in respect of its underwriting business and in relation to which section 220(2)(a) does not apply.
3D
The premium is to be treated for the purposes of the Corporation Tax Acts —
a
as an amount that arises to the member directly from its membership of the syndicate or syndicates in relation to the activities of which the stop-loss insurance was taken out, and
b
as if it were payable in the underwriting year in which the profits or losses arising to the member directly from its membership of the syndicate or syndicates concerned are declared.
3E
If a premium is payable under a stop-loss insurance in respect of two or more underwriting years, the amount of the premium treated, as a result of subsection (3D)(b) , as payable in each of those years is to be determined on a just and reasonable basis.
3F
If —
a
a corporate member enters into a quota share contract, and
b
the main purpose, or one of the main purposes, of entering into it was to secure that amounts payable by the member under the contract were not dealt with on the basis set out in subsection (3G) ,
the contract is treated for the purposes of subsections (3C) to (3E) as if it were a stop-loss insurance (and, accordingly, the amounts payable under it are treated for those purposes as premiums).
3G
Amounts are dealt with on the basis set out in this subsection if they are treated as payable in the underwriting year in which the profits or losses arising to a corporate member directly from its membership of one or more syndicates are declared.
2
The amendment made by this section has effect in relation to —
a
any stop-loss insurance (as defined by section 230(1) of FA 1994) taken out on or after 6 December 2011, or
b
any quota share contract (as defined by section 225(4) of FA 1994) entered into on or after that date.
3
If before 6 December 2011 a corporate member enters into a multi-year contract —
a
insurance is to be regarded for the purposes of subsection (2)(a) as taken out on the anniversary date of the contract which falls on or after the day on which this Act is passed, and
b
premiums payable under the insurance in respect of an underwriting year beginning on or after that day are premiums falling to be dealt with in accordance with the amendment made by this section.
4
For this purpose —
“multi-year contract” means a contract which (unless cancelled) operates in respect of successive underwriting years, and
“the anniversary date of the contract” means the date which is the anniversary of the date on which the contract was entered into.
5
If —
a
before 6 December 2011 a corporate member enters into a contract for insurance in respect of an underwriting year, and
b
on or after 6 December 2011 the contract is renewed in respect of a further underwriting year (whether as a result of the exercise of an option conferred by the contract or otherwise),
insurance is to be regarded for the purposes of subsection (2)(a) as taken out on the date of the renewal.
Abolition of relief for equalisation reserves: general insurers
26
1
Sections 444BA to 444BD of ICTA (equalisation reserves) are repealed.
2
In consequence of the repeal of those sections, omit —
a
in TMA 1970, in the second column of the table in section 98, the entry relating to regulations under section 444BB of ICTA and the entry relating to regulations under section 444BD of ICTA,
b
in FA 1996, section 166 and Schedule 32,
c
in FA 2003, in section 153(1)(a), the reference “444BB(3)(b),”,
d
in CTA 2009, paragraphs 155 and 156 of Schedule 1, and
e
in TIOPA 2010, paragraph 9 of Schedule 8.
3
The amendments made by this section have effect in relation to accounting periods ending on or after such day (“the specified day”) as is specified in an order made by the Treasury (and different days may be specified for different cases).
4
In the case of an insurance company’s existing equalisation or equivalent reserve —
a
an amount equal to one-sixth of the amount of the reserve is to be treated as a receipt of the company’s business in the calendar year in which the specified day falls, and
b
an amount equal to one-sixth of the amount of the reserve is to be treated as a receipt of the company’s business in each of the next five calendar years.
5
If there are different accounting periods falling in a calendar year, a receipt arising as a result of subsection (4) is apportioned between those periods in proportion to the number of days of the calendar year falling in those periods.
6
If —
a
the company ceases to carry on the business in a calendar year, and
b
an amount would otherwise have been treated as a result of subsection (4) as a receipt of the company’s business in a later calendar year,
any amount within paragraph (b) is treated instead as a receipt of the company’s business in the accounting period in which the company ceased to carry on the business.
7
For the purposes of this section —
a
“equalisation reserve”, in relation to an insurance company, means the equalisation reserve in respect of a business which the company was required, by virtue of equalisation reserves rules (within the meaning of section 444BA of ICTA), to maintain,
b
“equivalent reserve” means an equivalent reserve (within the meaning of section 444BD of ICTA) in relation to which section 444BA of ICTA applied,
c
a company’s “existing” equalisation or equivalent reserve means the equalisation or equivalent reserve as it stood immediately before the first accounting period of the company (“the relevant accounting period”) in relation to which the amendments made by this section have effect (but see subsection (8) ), and
d
references in this section to the company’s business are to the business in respect of which the equalisation or equivalent reserve was maintained.
8
If —
a
an insurance company has made an election under section 444BA(4) of ICTA in relation to an accounting period ending before the specified day, and
b
an amount would, but for this section, have been carried forward to the relevant accounting period of the company as a deductible amount,
that amount is not to be carried forward to that period as a deductible amount but is instead to be deducted from the amount of the equalisation or equivalent reserve as it stood immediately before that period.
9
References in this section to section 444BA of ICTA include that section as modified by regulations made under section 444BB or 444BC of that Act.
Election to accelerate receipts under s.26 (4)
27
1
An insurance company may make an election in relation to a calendar year (“the relevant year”) for all of the amounts that would, as a result of section 26 (4) , otherwise be treated as arising in later calendar years as receipts of a business carried on by the company to be treated instead as receipts of the business arising in the relevant year.
2
An election under this section —
a
must be made by notice to an officer of Revenue and Customs within 2 years from the end of the relevant year, and
b
is irrevocable.
3
A company which makes an election under section 29 as the transferor or the transferee may make an election under this section but not in relation to the calendar year in which the transfer takes place.
Deemed receipts under s.26 (4) : double taxation relief
28
1
This section applies if —
a
a receipt is treated as arising to an insurance company’s business in an accounting period as a result of section 26 (4) ,
b
the company carries on business through a permanent establishment outside the United Kingdom by reference to which double taxation relief is afforded in respect of any income or gains, and
c
the permanent establishment is one in relation to which regulation 10(2) of the Insurance Companies (Reserves) (Tax) Regulations 1996 previously applied.
2
For the purpose of calculating the profits or losses by reference to which double taxation relief is afforded for the accounting period, only the appropriate proportion (if any) of the receipt is to be taken into account.
3
The appropriate proportion of the receipt is —
a
equal to the mean of each proportion found for each relevant period (if any), or
b
equal to such other proportion as the company may determine on a just and reasonable basis.
4
For the purposes of subsection (3)(a) a proportion for a relevant period is the proportion which the PE’s premium income for the period bears to the company’s premium income for the period.
5
For the purposes of subsections (3)(a) and (4) —
“the company’s premium income”, in relation to a relevant period, means the amount of net premiums written by reference to which the calculation under section 444BA(2)(a) or (b) of ICTA was made for the period,
“the PE’s premium income”, in relation to a relevant period, means so much of the company’s premium income for the period as is attributable to the permanent establishment, and
a “relevant period” means an accounting period of the company in relation to which each of the following conditions is met —
section 444BA of ICTA has applied in relation to the accounting period,
the business mentioned in subsection (1)(a) has been carried on through the permanent establishment in the accounting period, and
the accounting period is the company’s last accounting period in relation to which section 444BA of ICTA applied or is one that falls wholly or partly in the period of six years ending with the day on which that last accounting period ended.
6
In subsection (5) —
a
“net premiums written” means gross premiums written net of reinsurance premiums payable under reinsurance ceded, and
b
references to section 444BA of ICTA include that section as modified by regulations made under that Act.
Transfer of whole or part of the business
29
1
If —
a
an insurance company carries on a business,
b
amounts fall to be treated as receipts of the business as a result of section 26 (4) (“deemed receipts”), and
c
under an insurance business transfer scheme there is a transfer of the whole or part of the business to another insurance company within the charge to corporation tax,
the transferor and the transferee may jointly make an election for those deemed receipts to be allocated between them in accordance with the following provisions.
2
If the transfer is a transfer of the whole of the business or substantially the whole of the business —
a
section 26 (6) does not apply in relation to the transferor (if it would otherwise have applied),
b
the deemed receipt which, on the assumption that there had been no transfer, would have arisen in the transfer year is apportioned between the transferor and the transferee in accordance with subsection (5) , and
c
the remaining deemed receipts (if any) which, on that assumption, would have arisen in subsequent calendar years are treated as receipts of the transferee (and not as receipts of the transferor).
3
If the transfer is a transfer of a part of the business and subsection (2) does not apply —
a
the appropriate portion of the deemed receipt arising in the transfer year is apportioned between the transferor and the transferee in accordance with subsection (5) , and
b
the appropriate portions of the remaining deemed receipts (if any) are treated as receipts of the transferee (and the receipts of the transferor are reduced accordingly).
4
The appropriate portion of a deemed receipt is to be determined on a just and reasonable basis.
5
An apportionment under subsection (2)(b) or (3)(a) is to be made in proportion to the number of days of the calendar year falling before the day of the transfer and the number of days of the calendar year falling on or after the day of transfer.
6
A deemed receipt which is treated as a receipt of the transferee as a result of this section is treated as a receipt of the business of the transferee which consists of or includes the transferred business, and, accordingly, section 26 (4) and (6) have effect in relation to the transferee —
a
as if references to the company were references to the transferee, and
b
as if references to the business were references to the business of the transferee which consists of or includes the transferred business.
7
An election under this section —
a
must be made by notice to an officer of Revenue and Customs within 28 days from the end of the day on which the transfer takes place,
b
must be accompanied by an explanation as to the way in which the transferor and the transferee have determined any issue falling to be determined for the purposes of this section, and
c
is irrevocable.
8
In this section —
“the transferred business” means so much of the business as is transferred to the transferee, and
“the transfer year” means the calendar year in which the transfer takes place.
9
If a company makes an election under this section as the transferee, this section has effect for the purposes of any subsequent elections made by the company under this section as the transferor as if references to the business were references to the activities in respect of which deemed receipts are treated as arising to it.
Abolition of relief for equalisation reserves: Lloyd’s corporate members etc
30
1
Regulations made by the Treasury under section 47 of FA 2009 (equalisation reserves for Lloyd’s corporate and partnership members) that revoke previous regulations made under that section may include provision corresponding to the provision made by sections 26 (4) to (8) and 27, subject to such modifications as may be made in the regulations.
2
Section 47 of FA 2009 is repealed.
3
That repeal has effect in relation to accounting periods ending on or after such day (“the specified day”) as is specified in an order made by the Treasury (and different days may be specified for different cases).
4
Subsections (2) and (3) are not to affect the operation of any transitional or saving provision included (whether as a result of this section or otherwise) in regulations made under section 47 of FA 2009 that revoke previous regulations made under that section so far as the provision remains capable of having effect in relation to times falling on or after the specified day.
Miscellaneous
Tax treatment of financing costs and income
31
Schedule 5 contains provision about the tax treatment of financing costs and income.
Group relief: meaning of “normal commercial loan”
32
1
CTA 2010 is amended as follows.
2
In section 162(2)(c) (meaning of “normal commercial loan”), after “securities in” insert “a quoted unconnected company (see section 164(2A)) or in”.
3
In section 164 (sections 160 and 162: supplementary), in subsection (2)(c), after “securities in” insert “a quoted unconnected company (see subsection (2A)) or in”.
4
After subsection (2) of that section insert —
2A
For the purposes of this section and section 162 a company is a quoted unconnected company if (and only if) —
a
its ordinary shares are listed on a recognised stock exchange, and
b
it is not connected with the relevant company.
5
In subsection (4) of that section —
a
for “If the candidate company’s” substitute “In the case of a company whose”, and
b
for “subsection (3)(c) is” substitute “subsections (2A)(a) and (3)(c) are”.
6
In subsection (5) of that section, for “subsections (3) and (4)” substitute “this section”.
7
The amendments made by this section have effect in relation to loans made on or after 21 March 2012.
Company distributions
33
1
Part 23 of CTA 2010 (company distributions) is amended as follows.
2
Section 1002 (exceptions for certain transfers of assets or liabilities between a company and its members) is repealed.
3
In section 1020 (transfers of assets or liabilities treated as distributions) —
a
in subsection (2), omit from “But” to the end, and
b
after that subsection insert —
2A
But the company is not treated as making a distribution under subsection (2) if the transfer of assets or liabilities —
a
is a distribution by virtue of paragraph B in section 1000(1), or
b
would be such a distribution in the absence of sub-paragraph (a) of that paragraph (distribution representing repayment of capital on the shares).
4
Section 1021 (transfers of assets or liabilities treated as distributions: exceptions) is repealed.
5
In consequence of the repeal made by subsection (2) —
a
omit section 194(2) of CTA 2010,
b
in section 998(3) of that Act, for “1002” substitute “1003”,
c
in section 1001 of that Act, in the third column of the table, omit “Section 1002 (exception for certain transfers of assets and liabilities)”, and
d
omit paragraph 1(2) of Schedule 3 to F(No.3)A 2010.
6
The amendments made by this section have effect in relation to distributions made on or after the day on which this Act is passed.
CHAPTER 4
Capital gains
Annual exempt amount
34
1
TCGA 1992 is amended as follows.
2
In section 3 (annual exempt amount), for the figure specified in subsection (2) substitute “£10,600”.
3
In that section —
a
in each of subsections (3), (3A), (3B) and (4), for “RPI” substitute “CPI”, and
b
in subsection (3A), for “retail prices index” substitute “consumer prices index”.
4
In section 288 (interpretation), after subsection (2) insert —
2A
In this Act “consumer prices index” means the all items consumer prices index published by the Statistics Board.
5
The amendment made by subsection (2) has effect for the tax year 2012-13 and subsequent tax years.
6
Section 3(3) of TCGA 1992 (indexation) does not apply in relation to the tax year 2012-13.
7
The amendments made by subsections (3) and (4) have effect for the tax year 2013-14 and subsequent tax years.
Foreign currency bank accounts
35
1
TCGA 1992 is amended as follows.
2
In section 13 (attribution of gains to members of non-resident companies), in subsection (5), omit paragraph (c).
3
In section 251 (debts: general provisions), after subsection (5) insert —
5A
References in this section to the disposal of a debt include the disposal of an interest in a debt (and, in the case of an interest in a debt, the reference in subsection (3) to the amount of the debt is to the amount of the person’s interest in the debt).
4
For section 252 substitute —
Foreign currency bank accounts
252
1
Section 251(1) does not apply in relation to a gain accruing to a person on a disposal of a foreign currency debt (or an interest in such a debt) unless that person is —
a
an individual,
b
the trustees of a settlement, or
c
the personal representatives of a deceased person.
2
A “foreign currency debt” is a debt —
a
owed by a bank in a currency other than sterling, and
b
represented by a sum standing to the credit of an account-holder in an account in that bank.
5
Omit section 252A and Schedule 8A (foreign currency bank accounts).
6
The amendments made by this section have effect in relation to disposals occurring on or after 6 April 2012.
Collective investment schemes: chargeable gains
36
1
TCGA 1992 is amended as follows.
2
In section 99A(2) (treatment of umbrella schemes), after “subsection (1)” insert “and section 103C”.
3
After section 103B insert —
Power to make regulations about collective investment schemes
103C
1
The Treasury may by regulations make provision about the treatment of participants in collective investment schemes for the purposes of this Act.
2
The regulations may, in particular, specify descriptions of collective investment scheme in relation to which they are to apply.
3
Regulations under this section may make different provision for different cases or different purposes.
4
Regulations under this section —
a
may modify this Act or any other enactment or instrument (whenever passed or made), and
b
may include incidental, consequential, supplementary or transitional provision.
5
A statutory instrument containing regulations under this section must be laid before the House of Commons after being made.
6
The regulations cease to have effect at the end of the period of 40 days beginning with the day on which the instrument is made unless before the end of that period the instrument is approved by a resolution of the House of Commons.
7
After an instrument containing regulations under this section has been approved under subsection (6), subsections (5) and (6) do not apply to any subsequent such instrument (and accordingly section 287(3) applies to any such instrument).
8
If regulations cease to have effect as a result of subsection (6), that does not —
a
affect anything previously done under the regulations, or
b
prevent the making of new regulations to the same or similar effect.
9
In calculating the period of 40 days for the purposes of subsection (6), no account is to be taken of any time during which Parliament is dissolved or prorogued or during which the House of Commons is adjourned for more than 4 days.
10
In this section —
“modify” includes amend, repeal or revoke, and
“participant”, in relation to a collective investment scheme, is to be read in accordance with section 235 of the Financial Services and Markets Act 2000.
Roll-over relief
37
1
In section 155 of TCGA 1992 (roll-over relief: relevant classes of assets), in the entry for Class 7A, for “Council Regulation (EC) No. 1782/2003 ” substitute “Council Regulation (EC) No 73/2009 ”.
2
In section 86 of FA 1993, for subsection (2) (power to add to classes specified in section 155 of TCGA 1992) substitute —
2
The Treasury may by order made by statutory instrument amend section 155 of the Taxation of Chargeable Gains Act 1992 (roll-over relief: relevant classes of assets) so as to add to or amend the classes of assets specified in that section.
2A
But an order under subsection (2) may not restrict the assets which fall within a class listed in that section (whether by virtue of subsection (2) or otherwise).
2B
An order under subsection (2) may make such consequential amendments of section 156ZB of, or Schedule 7AB to, the Taxation of Chargeable Gains Act 1992 as appear to the Treasury to be appropriate.
3
Accordingly, section 43(3) of FA 2002 is repealed.
4
The amendment made by subsection (1) has effect where the disposal of the old assets (or an interest in them) or the acquisition of the new assets (or an interest in them) is on or after 1 January 2009.
CHAPTER 5
Miscellaneous
Enterprise incentives
Seed enterprise investment scheme
38
Schedule 6 contains provision for and in connection with the seed enterprise investment scheme (including provision for re-investment relief under TCGA 1992).
Enterprise investment scheme
39
Schedule 7 contains provision about the enterprise investment scheme (including provision about deferral relief under Schedule 5B to TCGA 1992).
Venture capital trusts
40
Schedule 8 contains provision about venture capital trusts.
Capital allowances
Plant and machinery: restricting exception for manufacturers and suppliers
41
1
In section 230 of CAA 2001 (exception for manufacturers and suppliers), in subsection (1), for “restrictions in sections 217 and 218 do” substitute “restriction in section 218 does”.
2
The amendment made by subsection (1) has effect in relation to expenditure of B’s that is incurred on or after 12 August 2011 (regardless of when the relevant transaction was entered into).
3
But, in relation to any such expenditure that is incurred before the next amendment date, the restriction in section 217 of CAA 2001 does not apply (despite subsection (1)) if B can show that the condition in subsection (4) is met.
4
The condition is that, had the amendments made by paragraphs 1 to 7 of Schedule 9 had effect in relation to the expenditure, the restriction in section 217 would not have applied.
5
“The next amendment date” means the date defined in paragraph 9 of Schedule 9 as the start date.
Plant and machinery allowances: anti-avoidance
42
Schedule 9 contains provision to counter abuse of Part 2 of CAA 2001.
Plant and machinery allowances: fixtures
43
Schedule 10 contains provision about plant and machinery allowances in respect of fixtures.
Expenditure on plant and machinery for use in designated assisted areas
44
Schedule 11 contains provision about first-year allowances in respect of expenditure on plant and machinery for use in designated assisted areas.
Allowances for energy-saving plant and machinery
45
1
Part 2 of CAA 2001 (plant and machinery allowances) is amended as follows.
2
In section 45A (expenditure on energy-saving plant or machinery), after subsection (1) insert —
1A
This section is subject to section 45AA (payments under Energy Act 2008 schemes).
3
After that section insert —
Section 45A exclusion: payments under Energy Act 2008 schemes
45AA
1
Expenditure incurred on or after the relevant date on plant or machinery is to be treated as never having been first-year qualifying expenditure under section 45A if —
a
a payment is made, or another incentive is given, under a scheme established by virtue of section 41 of the Energy Act 2008 (feed-in tariffs) in respect of electricity generated by the plant or machinery, or
b
a payment is made, or another incentive is given, under a scheme established by regulations under section 100 of that Act (renewable heat incentives) in respect of heat generated, or gas or fuel produced, by the plant or machinery.
2
All such assessments and adjustments of assessments are to be made as are necessary to give effect to subsection (1).
3
If a person who has made a tax return becomes aware that, after making it, anything in it has become incorrect because of the operation of this section, the person must give notice to an officer of Revenue and Customs specifying how the return needs to be amended.
4
The notice must be given within 3 months beginning with the day on which the person first became aware that anything in the return had become incorrect because of the operation of this section.
5
Except as provided by subsection (6), the relevant date is —
a
for corporation tax purposes, 1 April 2012, and
b
for income tax purposes, 6 April 2012.
6
In the case of expenditure incurred on a combined heat and power system, the relevant date in relation to subsection (1)(b) is —
a
for corporation tax purposes, 1 April 2014, and
b
for income tax purposes, 6 April 2014.
4
In section 104A (special rate expenditure) —
a
in subsection (1), omit the “and” after paragraph (e), and after paragraph (f) insert
, and
g
expenditure incurred on or after the third relevant date on the provision of solar panels.
, and
b
after subsection (3) insert —
3A
The third relevant date is —
a
for corporation tax purposes, 1 April 2012, and
b
for income tax purposes, 6 April 2012.
Plant and machinery: long funding leases
46
1
Section 70E of CAA 2001 (disposal events and disposal values) is amended as follows.
2
In subsection (2A), for the definition of “R” substitute —
R is the sum of —
any relevant rebate (see subsections (2F) and (2G)), and
any other relevant lease-related payment (see subsections (2FA) and (2G)).
3
After subsection (2F) insert —
2FA
Relevant lease-related payment” means any payment which —
a
is payable at any time for the benefit (directly or indirectly) of the lessee or a person connected with the lessee,
b
is connected with the long funding lease, or with any arrangement connected with that lease, and
c
is not —
i
an initial payment or any other payment made to the lessor by the lessee under the lease,
ii
a payment made to the lessor by the lessee under a guarantee of any residual amount (as defined in section 70YE),
iii
an initial payment or any other payment made under a relevant superior lease to the person who is the lessor under that lease by the person who is the lessee under that lease, or
iv
a payment to the seller of the proceeds of a sale of the plant or machinery to which subsection (2FC) applies,
if, and to the extent that, the payment is not otherwise brought into account for tax purposes as income or a disposal receipt by the person for whom the benefit is payable (or would not be if that person were within the charge to tax).
2FB
For the purposes of subsection (2FA) —
“payment” includes the provision of any benefit, the assumption of any liability and any other transfer of money’s worth (and “payable” is to be construed accordingly);
“relevant superior lease” means any lease of the plant or machinery to which the long funding lease mentioned in subsection (1)(a) is inferior.
2FC
This subsection applies to a sale of the plant or machinery if —
a
a person has entered into a relevant transaction with another person in respect of the plant or machinery for the purposes of Chapter 17 of this Part (see section 213) and the sale is within section 213(1)(a),
b
the plant or machinery is within section 216(1)(b) (sale and lease back), and
c
the conditions in section 227(2) are met.
4
For subsection (2G) substitute —
2G
In the case of a lease that is not a transaction at arm’s length, “relevant rebate” and “relevant lease-related payment” include any amount that would reasonably be expected to have fallen within subsection (2F) or, as the case may be, (2FA) if the lease had been such a transaction.
5
The amendments made by this section have effect in relation to cases where the relevant event occurs on or after 21 March 2012.
Foreign income and gains
Foreign income and gains
47
Schedule 12 contains provision about the taxation of foreign income and gains.
Pensions
Employer asset-backed pension contributions etc
48
Schedule 13 contains —
a
provision relating to employers who pay contributions under registered pension schemes and arrangements for which their contributions are used (directly or indirectly), and
b
provision amending Chapter 5B of Part 13 of ITA 2007 and Chapter 2 of Part 16 of CTA 2010 (finance arrangements).
Charitable giving etc
Gifts to the nation
49
Schedule 14 contains provision for a person’s tax liability to be reduced in return for giving pre-eminent property to the nation.
Gift aid: giving through self-assessment return
50
1
Section 429 of ITA 2007 (gift aid: giving through self-assessment return) is repealed.
2
The following repeals are made in consequence of subsection (1) —
a
in section 426 of ITA 2007 (election by donor: gift treated as made in previous tax year), omit subsection (8),
b
in section 538 of that Act (requirement to make claim), omit subsection (3),
c
in section 133 of FA 2008 (set-off etc where right to be paid a sum has been transferred), in subsection (8)(a), omit the words from “except” to the end,
d
in section 472 of CTA 2010 (gifts qualifying for gift aid relief: corporation tax liability and exemption), omit subsection (5), and
e
in section 475 of that Act (gifts qualifying for gift aid relief: income tax treated as paid and exemption), omit subsection (7).
3
Accordingly, the following provisions are also repealed —
a
section 130(9) of FA 2008, and
b
paragraph 3(4) of Schedule 8 to FA 2010.
4
The repeals made by this section are treated as having come into force on 6 April 2012.
Relief for gift aid and other income of charities etc
51
Schedule 15 contains provision about relief in respect of gifts qualifying for gift aid relief and other income of charities and other bodies.
Meaning of “community amateur sports club”
52
1
In section 658 of CTA 2010 (meaning of “community amateur sports club”), for subsection (1) substitute —
1
A club is entitled to be registered as a community amateur sports club if conditions A and B are met.
1A
Condition A is that the club is, and is required by its constitution to be, a club which —
a
is open to the whole community (see section 659),
b
is organised on an amateur basis (see section 660), and
c
has as its main purpose the provision of facilities for, and the promotion of participation in, one or more eligible sports (see section 661).
1B
Condition B is that the club meets —
a
the location condition (see section 661A), and
b
the management condition (see section 661B).
2
In consequence of the amendment made by subsection (1), omit paragraph 31 of Schedule 6 to FA 2010.
3
The amendments made by this section are treated as having come into force on 6 April 2010.
Other provisions
Site restoration payments
53
1
In section 168 of ITTOIA 2005 (site restoration payments), at the beginning of subsection (2) insert “Subject to subsection (3A),”.
2
For subsection (3) of that section substitute —
3
The deduction is allowed —
a
(if the payment is made, whether directly or indirectly, to a connected person) for the period of account in which that part of the restoration work to which the payment relates is completed, or
b
(in any other case) for the period of account in which the payment is made.
3A
But no deduction is allowed if the payment arises from arrangements —
a
to which the person carrying on the trade is a party, and
b
the main purpose, or one of the main purposes, of which is to obtain a deduction under this section.
3
At the end of that section insert —
7
Arrangements” includes any agreement, understanding, scheme, transaction or series of transactions (whether or not legally enforceable).
4
In section 145 of CTA 2009 (site restoration payments), at the beginning of subsection (2) insert “Subject to subsection (3A),”.
5
For subsection (3) of that section substitute —
3
The deduction is allowed —
a
(if the payment is made, whether directly or indirectly, to a connected person) for the period of account in which that part of the restoration work to which the payment relates is completed, or
b
(in any other case) for the period of account in which the payment is made.
3A
But no deduction is allowed if the payment arises from arrangements —
a
to which the company carrying on the trade is a party, and
b
the main purpose, or one of the main purposes, of which is to obtain a deduction under this section.
6
At the end of that section insert —
7
Arrangements” includes any agreement, understanding, scheme, transaction or series of transactions (whether or not legally enforceable).
7
The amendments made by this section have effect in relation to any site restoration payment made on or after 21 March 2012, other than a payment made pursuant to an unconditional obligation in a contract made before 21 March 2012.
8
An unconditional obligation is an obligation which may not be varied or extinguished by the exercise of a right (whether or not under the contract).
Changes of accounting policy
54
1
In section 227 of ITTOIA 2005 (adjustment on change of accounting basis: income tax) —
a
in subsection (3)(a) for “relevant change of accounting approach” substitute “change of accounting policy”, and
b
for subsection (4) substitute —
4
A “change of accounting policy” includes, in particular —
a
a change from using UK generally accepted accounting practice to using generally accepted accounting practice with respect to accounts prepared in accordance with international accounting standards, and
b
a change from using generally accepted accounting practice with respect to accounts prepared in accordance with international accounting standards to using UK generally accepted accounting practice.
2
In section 180 of CTA 2009 (adjustment on change of accounting basis: corporation tax) —
a
in subsection (3)(a) for “relevant change of accounting approach” substitute “change of accounting policy”, and
b
for subsection (4) substitute —
4
A “change of accounting policy” includes, in particular —
a
a change from using UK generally accepted accounting practice to using generally accepted accounting practice with respect to accounts prepared in accordance with international accounting standards, and
b
a change from using generally accepted accounting practice with respect to accounts prepared in accordance with international accounting standards to using UK generally accepted accounting practice.
3
Corresponding amendments are to be treated as having been made in section 64 of FA 2002.
4
In consequence of the amendment made by subsection (1)(b), omit paragraph 2 of Schedule 6 to F(No.2)A 2005.
5
The amendments made by this section have effect in relation to a change of basis if the new basis —
a
is adopted for a period of account which begins on or after 1 January 2012, or
b
is adopted for a period of account which begins before 1 January 2012 and the adoption is in consequence of the issue, revocation, amendment or recognition of, or withdrawal of recognition from, an accounting standard by an accounting body on or after 1 January 2012.
6
In this section —
“accounting body” means the International Accounting Standards Board, the Accounting Standards Board, or a successor body to either of those Boards;
“accounting standard” includes any statement of practice, guidance or other similar document.
PART 2
Insurance companies carrying on long-term business
CHAPTER 1
Introductory
Outline of provisions of Part
Overview
55
1
This Part makes special provision for corporation tax purposes in relation to life assurance business and other long-term business carried on by insurance companies.
2
Chapter 1 explains some of the key concepts for the purposes of this Part, including the concept of basic life assurance and general annuity business (abbreviated to “BLAGAB”).
3
Chapter 2 —
a
provides for the profits of BLAGAB to be subject to a charge to corporation tax on the I - E basis as the profits of a separate business, and
b
provides for the profits of other long-term business to be charged to corporation tax under section 35 of CTA 2009 as the profits of a single trade.
4
Chapter 3 sets out the rules applicable to the I - E charge (which operate in part by reference to the calculation of an insurance company’s BLAGAB trade profit or loss).
5
Chapter 4 sets out rules for determining for the purposes of the I - E charge how to apportion items to an insurance company’s basic life assurance and general annuity business.
6
Chapter 5 —
a
provides for the policyholders’ share of the I - E profit to be charged at the policyholders’ rate (the basic rate of income tax), and
b
provides for policyholder tax to be taken into account in calculating an insurance company’s BLAGAB trade profit or loss.
7
Chapter 6 contains special rules that are to apply for the purpose of calculating an insurance company’s BLAGAB trade profit or loss or the profits of an insurance company’s other long-term business.
8
Chapter 7 sets out rules for determining for the purposes of that calculation how to allocate items between BLAGAB and other long-term business.
9
The remainder of the Part contains —
a
provision in relation to assets held for the purposes of an insurance company’s long-term business (see Chapter 8),
b
provision for relieving BLAGAB trade losses and restrictions in relation to the policyholders’ share of an I - E profit (see Chapter 9),
c
provision in relation to the transfer of BLAGAB or other long-term business (see Chapter 10), and
d
definitions and other supplementary material (see Chapters 11 and 12).
Meaning of “life assurance business”
Meaning of “life assurance business”
56
1
This section defines for the purposes of this Part what is meant by “life assurance business”.
2
Business is “life assurance business” if —
a
it consists of the effecting or carrying out of contracts of insurance which fall within paragraph I, II, III or VII(b) of Part 2 of Schedule 1 to the FISMA (Regulated Activities) Order 2001, or
b
it is capital redemption business (see subsection (3) ).
3
Business is “capital redemption business” if it consists of the effecting on the basis of actuarial calculations, and the carrying out, of contracts under which, in return for one or more fixed payments, a sum of a specified amount (or a series of sums of a specified amount) become payable at a future time or over a period.
Meaning of “basic life assurance and general annuity business”
Meaning of “basic life assurance and general annuity business”
57
1
This section defines for the purposes of this Part what is meant by “basic life assurance and general annuity business”.
2
“Basic life assurance and general annuity business” means life assurance business other than —
a
pension business (which is defined for the purposes of this section by section 58),
b
child trust fund business (which is defined for the purposes of this section by section 59),
c
individual savings account business (which is defined for the purposes of this section by section 60),
d
business which consists of the effecting or carrying out of immediate needs annuities (within the meaning of section 725 of ITTOIA 2005),
e
re-insurance of life assurance business other than excluded business,
f
overseas life assurance business (which is defined for the purposes of this section by section 61), or
g
protection business (which is defined for the purposes of this section by section 62).
3
In subsection (2)(e) “excluded business” means business of any description excluded for the purposes of this section by regulations made by HMRC Commissioners.
Section 57: meaning of “pension business”
58
1
This section defines for the purposes of the definition of “basic life assurance and general annuity business” given by section 57 what is meant by “pension business”.
2
Life assurance business is “pension business” if —
a
it consists of the effecting or carrying out of contracts entered into for the purposes of a registered pension scheme, or
b
it is the re-insurance of business within paragraph (a) .
3
Subsection (4) applies if the pension scheme ceases to be a registered pension scheme as a result of the withdrawal of its registration under section 157 of FA 2004.
4
The company’s life assurance business that was pension business when the scheme was a registered pension scheme is treated as ceasing to be pension business at the beginning of the company’s period of account in which the scheme so ceases to be a registered pension scheme.
5
If —
a
immediately before 6 April 2006 an annuity contract fell within any of the descriptions of contracts specified in section 431B(2) of ICTA as it had effect immediately before that date, but
b
the contract does not fall to be regarded for the purposes of this section as having been entered into for the purposes of a registered pension scheme,
the contract is treated for the purposes of this section as having been entered into for those purposes.
Section 57: meaning of “child trust fund business”
59
1
This section defines for the purposes of the definition of “basic life assurance and general annuity business” given by section 57 what is meant by “child trust fund business”.
2
Life assurance business is “child trust fund business” if it consists of the effecting or carrying out of child trust fund policies.
3
But the re-insurance of business consisting of the effecting or carrying out of child trust fund policies is not “child trust fund business”.
4
In this section “child trust fund policy” means a policy of life insurance which is an investment under a child trust fund (within the meaning of the Child Trust Funds Act 2004).
Section 57: meaning of “individual savings account business”
60
1
This section defines for the purposes of the definition of “basic life assurance and general annuity business” given by section 57 what is meant by “individual savings account business”.
2
Life assurance business is “individual savings account business” if it consists of the effecting or carrying out of individual savings account policies.
3
But the re-insurance of business consisting of the effecting or carrying out of individual savings account policies is not “individual savings account business”.
4
In this section “individual savings account policy” means a policy of life insurance which is an investment of a kind specified in regulations made as a result of section 695(1) of ITTOIA 2005.
Section 57: meaning of “overseas life assurance business”
61
1
This section defines for the purposes of the definition of “basic life assurance and general annuity business” given by section 57 what is meant by “overseas life assurance business”.
2
Life assurance business is “overseas life assurance business” if —
a
it consists of the effecting or carrying out of contracts with policyholders or annuitants who are not resident in the United Kingdom, and
b
it does not consist of excluded business,
but the re-insurance of business that meets the conditions in paragraphs (a) and (b) is not “overseas life assurance business”.
3
For this purpose “excluded business” means —
a
business which is pension business within the meaning of section 58,
b
business which is child trust fund business within the meaning of section 59,
c
business which is individual savings account business within the meaning of section 60, or
d
business of any description excluded by regulations made by HMRC Commissioners.
4
HMRC Commissioners may by regulations —
a
make provision as to the circumstances in which a trustee who is a policyholder or annuitant residing in the United Kingdom is to be treated for the purposes of this section as not residing there, and
b
provide that nothing in Chapter 9 of Part 4 of ITTOIA 2005 is to apply to a policy or contract which constitutes overseas life assurance business as a result of provision made under paragraph (a) .
5
HMRC Commissioners may by regulations make provision for giving effect to this section.
6
Regulations under subsection (5) may —
a
provide that, in prescribed circumstances, any prescribed issue as to whether business is, or is not, overseas life assurance business (or overseas life assurance business of a particular kind) is to be determined by reference to prescribed matters,
b
require companies to obtain certificates, undertakings, information or declarations from any person for the purposes of the regulations,
c
make provision for dealing with cases where any issue within paragraph (a) is (for any reason) wrongly determined, including provision allowing for charges to tax to be imposed (with or without limits on time) on the insurance company concerned or on the policyholders or annuitants concerned,
d
require companies to supply information and make available books, documents and other records for inspection by officers of Revenue and Customs, and
e
make provision (including provision imposing penalties) for contravention of, or non-compliance with, the regulations.
7
The matters that may be prescribed under subsection (6)(a) include —
a
the giving of certificates or undertakings,
b
the giving or possession of information, and
c
the making of declarations.
8
Regulations under this section may —
a
make different provision for different cases or circumstances, and
b
contain incidental, supplementary, consequential, transitional, transitory or saving provision (including provision amending any enactment or instrument made under any enactment).
Section 57: meaning of “protection business”
62
1
This section defines for the purposes of the definition of “basic life assurance and general annuity business” given by section 57 what is meant by “protection business”.
2
Life assurance business is “protection business” if it consists of the effecting or carrying out of any contract of long-term insurance in relation to which the following conditions are met —
a
the benefits payable cannot exceed the amount of premiums paid except on death or in respect of incapacity due to injury, sickness or other infirmity, and
b
the contract is made on or after 1 January 2013.
3
For the purposes of subsection (2)(a) ignore —
a
any benefit (other than a payment of money) that, when the contract is entered into, is provided as an inducement for entering into the contract and that is not repayable (to any extent) in any circumstances,
b
any case where the amount by which the benefits can exceed the amount of premiums paid is an insignificant proportion of those premiums, and
c
any case which a reasonable person, as the policyholder under the policy effected by the contract, can reasonably regard as highly unlikely to arise.
4
If at any time —
a
a contract is varied otherwise than as a result of the operation of, or the exercise of rights conferred by, provisions forming part of the contract or a connected arrangement, and
b
as a result of the variation the contract becomes, or ceases to be, one in respect of which the condition in subsection (2)(a) is met,
the contract is to be treated for the purposes of this section as ending at that time and a new contract (on the varied terms) is to be treated for those purposes as being made immediately after that time.
5
For this purpose a “connected arrangement”, in relation to a contract, means any agreement or other arrangement entered into in connection with the making of the contract.
6
If —
a
a contract (“the new contract”) is made on or after 1 January 2013 as a result of the operation of, or the exercise of rights conferred by, provisions of a contract (“the old contract”) made before that date, and
b
the provisions of the new contract were (or could have been) determined by reference to provisions of the old contract when the old contract was made,
the new contract is to be regarded for the purposes of this section as if it were made before 1 January 2013.
Meaning of “long-term business” and “PHI business”
Meaning of “long-term business” and “PHI business”
63
1
For the purposes of this Part “long-term business” means —
a
life assurance business, or
b
other business which consists of the effecting or carrying out of contracts of long-term insurance.
2
For the purposes of this Part “PHI business” means the other business mentioned in subsection (1)(b) .
Meaning of contract of “insurance” or “long-term insurance” and “insurance company”
Meaning of “contract of insurance” and “contract of long-term insurance”
64
For the purposes of this Part —
“contract of insurance” has the meaning given by article 3(1) of the FISMA (Regulated Activities) Order 2001, and
“contract of long-term insurance” means a contract which falls within Part 2 of Schedule 1 to that Order.
Meaning of “insurance company”
65
1
This section defines for the purposes of this Part what is meant by an “insurance company”.
2
A person who carries on the activity of effecting or carrying out contracts of insurance is an “insurance company” if —
a
the person has permission under Part 4 of FISMA 2000 to carry on that activity,
b
the person is of the kind mentioned in paragraph 5(d) or (da) of Schedule 3 to FISMA 2000 (EEA passport rights) and carries on that activity in the United Kingdom through a permanent establishment there, or
c
the person qualifies for authorisation under Schedule 4 to FISMA 2000 (Treaty rights) and carries on that activity in the United Kingdom through a permanent establishment there.
3
The above definition is subject to the following qualifications —
a
a friendly society within the meaning of Part 3 is not an insurance company, and
b
an insurance special purpose vehicle (see section 139) is an insurance company only if, in addition to falling within subsection (2)(a) , (b) or (c) , it is a BLAGAB group re-insurer.
4
A person is a “BLAGAB group re-insurer” if for an accounting period —
a
the person carries on basic life assurance and general annuity business,
b
it is not the case that substantially all of the person’s long-term business is long-term business other than basic life assurance and general annuity business, and
c
all of its life assurance business is re-insurance business of a description which is excluded business for the purposes of section 57 (2)(e) .
CHAPTER 2
Charge to tax on I - E basis etc
Separate businesses etc
Separate businesses for BLAGAB and other long-term business
66
1
If an insurance company carries on —
a
basic life assurance and general annuity business, and
b
other long-term business,
the general rule is that business within paragraphs (a) and (b) is to be treated for corporation tax purposes as two separate businesses carried on by the company.
2
One of the separate businesses is to consist of the basic life assurance and general annuity business.
3
The other separate business is to be regarded for corporation tax purposes as a single trade consisting of the other long-term business.
4
If an insurance company carries on —
a
life assurance business none of which is basic life assurance and general annuity business, and
b
PHI business,
the company is to be treated for corporation tax purposes as carrying on a single trade consisting of the businesses within paragraphs (a) and (b) .
5
For the purposes of this Part “non-BLAGAB long-term business” means —
a
a single trade within subsection (3) or (4) , or
b
in a case where an insurance company carries on life assurance business none of which is basic life assurance and general annuity business but does not carry on other long-term business, that life assurance business.
6
If an insurance company carries on short-term insurance business, that business is to be regarded for corporation tax purposes as a separate trade.
7
For this purpose “short-term insurance business” means any insurance business which is not long-term business.
Exception where BLAGAB small part of long-term business
67
1
There is an exception to the general rule set out in section 66 (1) if for an accounting period of an insurance company substantially all of its long-term business is not basic life assurance and general annuity business.
2
In that case, there is for the accounting period to be no separate business consisting of the company’s basic life assurance and general annuity business.
3
There is instead to be one business that is to be regarded for corporation tax purposes as a single trade of the company consisting of its long-term business.
4
That single trade is to be regarded as “non-BLAGAB long-term business” for the purposes of this Part.
5
Accordingly, references in this Part (apart from in section 66 and this section) to a company’s basic life assurance and general annuity business do not include any business which, as a result of this section, is regarded as non-BLAGAB long-term business.
BLAGAB taxed on I - E basis
Charge to tax on I - E profit
68
1
The charge to corporation tax applies to the I - E profit of the basic life assurance and general annuity business carried on by an insurance company.
2
For the meaning of “I - E profit”, see section 73.
Exclusion of charge under s.35 of CTA 2009 etc
69
The charge to corporation tax under section 68 has effect instead of —
a
the charge to corporation tax on income under section 35 of CTA 2009 (charge to tax on trade profits),
b
any other charge to corporation tax on income under any other provision of the Corporation Tax Acts that would otherwise have applied, and
c
the charge to corporation tax on chargeable gains so far as referable, in accordance with Chapter 4, to the company’s basic life assurance and general annuity business.
Rules for calculating I - E profit or excess BLAGAB expenses
70
1
The rules set out in Chapter 3 determine whether for an accounting period an insurance company carrying on basic life assurance and general annuity business has an I - E profit or excess BLAGAB expenses (and, if so, the amount of the profit or expenses).
2
Those rules are referred to in this Part as “the I - E rules”.
3
The calculation of the I - E profit or excess BLAGAB expenses is to operate by reference to the amounts that are credited or debited in the accounts of the company for a period of account drawn up in accordance with generally accepted accounting practice.
4
But, in the case of amounts of a particular description, that is subject to any provision which (whether expressly or by implication) provides for that calculation to operate by reference to something else.
5
For the meaning of “excess BLAGAB expenses”, see section 73.
Non-BLAGAB long-term business
Charge to tax on profits of non-BLAGAB long-term business
71
1
The charge to corporation tax on income under section 35 of CTA 2009 (charge to tax on trade profits) applies to the profits of non-BLAGAB long-term business carried on by an insurance company.
2
The rules for calculating those profits are subject to the provision made by —
a
Chapter 6 (trade calculation rules applying to long-term business),
b
Chapter 7 (trading apportionment rules), and
c
section 131 (transfers of business).
3
Subsection (1) does not apply if the business is mutual business, and in that case no other provision of the Corporation Tax Acts has effect to charge the income of the business to corporation tax.
PHI only business
Companies carrying on only PHI business
72
Nothing in —
a
this Part, or
b
any other provision of the Corporation Tax Acts that makes special provision in relation to, or by reference to, long-term business carried on by insurance companies,
is to apply in relation to a company which carries on long-term business which consists wholly of PHI business.
CHAPTER 3
The I - E basis
Introduction
The I - E basis
73
This section sets out rules, in relation to the basic life assurance and general annuity business carried on by an insurance company, for determining whether the company has an I - E profit or excess BLAGAB expenses for an accounting period (and, if so, the amount of the profit or expenses).
Step 1
Calculate the income chargeable for the accounting period that is referable, in accordance with Chapter 4, to the company’s basic life assurance and general annuity business.
The meaning here of “income” is given by section 74.
Step 2
Calculate the BLAGAB chargeable gains of the company for the accounting period as adjusted for allowable losses (see section 75).
Step 3
Calculate so much of the amount (or the total amount) of any I - E receipt under section 92 or 93 (5)(a) as is not taken into account in the calculation required by step 1 or 2.
Step 4
Add together the amounts given by the calculations required by steps 1 to 3.
Reduce the total of those amounts (but not below nil) by the amount of any non-trading deficit which the company has for the accounting period under section 388 of CTA 2009 (loan relationships and derivative contracts).
The result is “I”.
Step 5
Calculate the adjusted BLAGAB management expenses of the company for the accounting period (see section 76).
The result is “E”.
Step 6
Subtract E from I (which, if E is a negative figure, would have the effect of increasing the result of the calculation).
If the result is a positive amount, that is (subject to section 95) the amount for the accounting period chargeable to corporation tax under section 68.
That amount is referred to in this Part as an “I - E profit”.
If the result is a negative amount, that amount is to be carried forward by the company as an expense to its next accounting period to be used in accordance with step 5 of section 76.
That amount is referred to in this Part as “excess BLAGAB expenses”
Definitions of expressions comprising “I”
Meaning of “income”
74
1
In section 73 “income”, in relation to an insurance company, means the following income or credits so far as arising from the company’s long-term business —
a
income of the company chargeable under Chapter 3 of Part 4 of CTA 2009 in respect of any separate UK property business or overseas property business within section 86 (4) ,
b
credits in respect of any loan relationships of the company,
c
credits in respect of any derivative contracts of the company,
d
credits brought into account by the company under Part 8 of CTA 2009 (intangible fixed assets),
e
income of the company chargeable under Part 9A of CTA 2009 (company distributions),
f
income of the company chargeable under Chapter 5 of Part 10 of CTA 2009 (distributions from unauthorised unit trusts),
g
income of the company chargeable under Chapter 6 of Part 10 of CTA 2009 (sale of foreign dividend coupons),
h
income of the company chargeable under Chapter 7 of Part 10 of CTA 2009 (annual payments not otherwise charged),
i
income of the company arising from a source outside the United Kingdom which is chargeable under Chapter 8 of Part 10 of CTA 2009 (income not otherwise charged), and
j
income of the company chargeable under any provision to which section 1173 of CTA 2010 (miscellaneous charges) applies other than section 752 of CTA 2009 (non-trading gains on intangible fixed assets).
2
The reference in subsection (1)(a) to income chargeable under Chapter 3 of Part 4 of CTA 2009 includes income chargeable under that Chapter in respect of distributions treated by section 548(5) of CTA 2010 as profits of a UK property business carried on by the company.
3
References in subsection (1)(b) to (d) to credits need to be read with section 88 (3) and (4) .
4
The reference in subsection (1)(j) to income chargeable as mentioned there needs to be read with section 89 (1) .
5
For the purposes of this section references to income or credits that are chargeable or brought into account under any provision are to income or credits that, but for sections 68 and 69, would be chargeable or brought into account under that provision.
6
For the purposes of this section no account is to be taken of income which arises from an asset forming part of the long-term business fixed capital of the company (see section 137).
Meaning of “BLAGAB chargeable gains” etc
75
1
This section explains for the purposes of section 73 how to calculate the BLAGAB chargeable gains of the company for the accounting period as adjusted for allowable losses.
Step 1
First, calculate the chargeable gains —
that accrue to the company in the accounting period from the disposal of assets held for the purposes of the company’s long-term business, and
that are referable, in accordance with Chapter 4, to its basic life assurance and general annuity business.
Step 2
Then, deduct from the amount of those gains —
any allowable losses that accrue to the company in the accounting period from the disposal of assets held for the purposes of the company’s long-term business and that are so referable, and
so far as not previously deducted from any chargeable gains, any allowable losses that accrued to the company in a previous accounting period from the disposal of assets held for the purposes of the company’s long-term business and that were so referable.
The resulting amount is the amount of the BLAGAB chargeable gains of the company for the accounting period as adjusted for allowable losses.
2
The deduction at step 2 may reduce an amount to nil but no further.
3
For the purposes of this section no account is to be taken of a chargeable gain or allowable loss accruing to the company on a disposal for the purposes of TCGA 1992 of an asset that forms part of the long-term business fixed capital of the company.
4
References in this section to chargeable gains or allowable losses are references to those gains or losses as calculated in accordance with the rules contained in TCGA 1992.
Definitions of expressions comprising “E”
Meaning of “adjusted BLAGAB management expenses”
76
This section explains for the purposes of section 73 how to calculate the adjusted BLAGAB management expenses of the company for the accounting period.
Step 1
Calculate the ordinary BLAGAB management expenses of the company referable to the accounting period (see sections 77, 81 and 82).
In making the calculation ignore so much of those expenses as is deductible under other relevant rules (see section 78 (2) ).
If the company is an overseas life insurance company, see also section 96.
Step 2
If the expenses calculated in accordance with step 1 include acquisition expenses for the purposes of section 79, reduce the amount given by step 1 in accordance with the rules in that section (which, in the typical case, provide for six-sevenths of the adjusted amount of those expenses to be disallowed for the accounting period and relieved instead as deemed BLAGAB management expenses for the next six accounting periods).
Step 3
Calculate the total amount of any deemed BLAGAB management expenses for the accounting period (see section 78 (3) ).
For this purpose ignore any amounts that have already been included in step 1.
Step 4
Find the basic amount by adding together the amount given by the calculation required by step 1 (adjusted, where relevant, in accordance with step 2) and the amount given by the calculation required by step 3.
Adjust the basic amount by deducting from it any expenses reversed in the accounting period (see section 78 (4) ) and any BLAGAB trade loss relieved for the accounting period (see section 78 (5) ).
Step 5
Add together any amounts carried forward as expenses from the previous accounting period to the accounting period as a result of section 73 or 93 to give the carried-forward amount.
Add the carried-forward amount to the basic amount or, as the case may be, the basic amount adjusted in accordance with step 4.
The resulting amount is the amount of adjusted BLAGAB management expenses of the company for the accounting period.
Section 76: meaning of “ordinary BLAGAB management expenses” etc
77
1
This section explains for the purposes of section 76 what is meant by the “ordinary BLAGAB management expenses of the company referable to the accounting period”.
2
Amounts are “ordinary BLAGAB management expenses” of the company if —
a
they are, in accordance with generally accepted accounting practice, debited in accounts drawn up by the company for a period of account (but see subsection (3) ),
b
they are expenses of management of the company’s long-term business that are referable, in accordance with Chapter 4, to its basic life assurance and general annuity business, and
c
they are not excluded amounts (see subsections (4) to (7) ).
3
In a case where acquisition expenses (within the meaning of section 80) incurred in the accounting period fall to be debited in successive accounts drawn up for successive periods of account, those expenses are treated instead as if they were all debited in the accounts drawn up for the first of those periods of account.
4
The following are “excluded amounts” —
a
amounts of a capital nature,
b
re-insurance premiums,
c
refunds of premiums,
d
profit commissions and profit participations (however described),
e
a liability of the company to pay an amount of commission or other expenses so far as exceeding the amount which it could reasonably be expected to pay if sections 68 and 69 were not applicable,
f
non-commercial amounts payable by the company,
g
amounts payable in connection with a policy or contract to a policyholder or annuitant under the policy or contract or to any other person entitled to receive benefits under the policy or contract.
5
For the purposes of subsection (4)(f) expenses or other amounts are “non-commercial amounts” payable by the company so far as the company’s purpose in incurring the liability to make the payment is not a business or other commercial purpose of the company.
6
Amounts payable as mentioned in paragraph (g) of subsection (4) include —
a
amounts payable to any person acting on behalf of a person within that paragraph, and
b
amounts payable to the personal representatives of a deceased person who was (or acted on behalf of a person who was) within that paragraph.
7
Amounts payable as mentioned in subsection (4)(g) do not include amounts payable to an insurance company which is a policyholder under the policy.
8
In the case of ordinary BLAGAB management expenses in respect of a period of account which coincides with or falls wholly in an accounting period of the company, all of those expenses are “referable to” the accounting period.
9
In the case of ordinary BLAGAB management expenses in respect of any other period of account —
a
those expenses are to be apportioned to the accounting period of the company in accordance with section 1172 of CTA 2010, and
b
the apportioned amount of those expenses is “referable to” the accounting period.
Section 76: meaning of other expressions
78
1
This section explains for the purposes of section 76 what is meant by —
“other relevant rules”,
“deemed BLAGAB management expenses for the accounting period”,
“expenses reversed in the accounting period”, and
“BLAGAB trade loss relieved for the accounting period”.
2
An expense is deductible under another “relevant rule” if —
a
it is deductible as a result of section 92 (3) ,
b
it is deductible in calculating, for corporation tax purposes, the profits of a property business, or
c
it is deductible as a result of section 272 of CTA 2009 in calculating income from the letting of rights to work minerals in the United Kingdom.
3
An amount is a “deemed BLAGAB management expense for the accounting period” if it is treated as such for the purposes of section 76 as a result of —
section 79 or paragraph 33(2) of Schedule 17 (spreading of acquisition expenses),
section 83 (general annuity business),
section 87 (3) (losses from property businesses where land held for purposes of long-term business),
section 88 (6) (excess of debits in respect of intangible fixed assets),
section 89 (2) (excess of miscellaneous losses),
paragraph 16(1) of Schedule 7 to FA 1991 (transitional relief for old general annuity contracts),
section 256(2)(a) of CAA 2001 (allowances in respect of plant or machinery consisting of management asset),
section 391(3) of CTA 2009 (loan relationships: carry forward of surplus to next accounting period),
section 1080(2) of CTA 2009 (additional relief for expenditure on research and development),
section 1162 of CTA 2009 (additional relief for remediation of contaminated or derelict land), or
section 783(6), 785(4) or 791(6) of CTA 2010 (manufactured dividends).
4
“Expenses reversed in the accounting period” means the total amount of the expenses —
a
which were relieved in any previous accounting period in accordance with step 1 (as read with step 2) or step 3 of section 76, but
b
which are subsequently reversed in the accounting period.
5
A “BLAGAB trade loss relieved for the accounting period” means so much of a BLAGAB trade loss of the company for the accounting period for which relief is given under —
a
section 37 of CTA 2010 (relief for trade losses against total income), as applied by section 123, or
b
Chapter 4 of Part 5 of that Act (group relief), as applied by section 125.
Spreading of acquisition expenses
79
1
This section applies if the ordinary BLAGAB management expenses of an insurance company referable to an accounting period for the purposes of section 76 include acquisition expenses (as defined by section 80) incurred in the accounting period.
2
In the case of the acquisition expenses —
a
a reduction is to be made at step 2 in section 76 so as to secure that only one-seventh of the adjusted amount of those expenses counts as ordinary BLAGAB management expenses of the company referable to the accounting period, and
b
the remainder of that adjusted amount is to be relieved as deemed BLAGAB management expenses for succeeding accounting periods in accordance with the following provisions.
3
References in this section to the adjusted amount of the acquisition expenses are to —
a
the amount of those expenses calculated as mentioned in step 1 of section 76 (and see, in particular, section 77 (3) ), less
b
any amount of re-insurance commission or any repayment or refund (in whole or in part) that forms part of an I - E receipt of the company for the accounting period as a result of section 92.
4
The remainder of the adjusted amount of the acquisition expenses is relieved as follows.
5
One-seventh of the adjusted amount of the acquisition expenses is treated for the purposes of section 76 as a deemed BLAGAB management expense for each succeeding accounting period.
6
But, if a succeeding accounting period is less than a year, the fraction of that amount to be relieved for that period is proportionately reduced.
7
The reliefs operate until the whole of the adjusted amount of the acquisition expenses has been used up (and, accordingly, the rules in subsections (5) and (6) have effect subject to this subsection).
8
The treatment of any part of the adjusted amount of the acquisition expenses as a deemed BLAGAB management expense for an accounting period (“the period concerned”) as set out in subsections (5) to (7) is subject to the following restriction.
9
If expenses are reversed in the period concerned or any preceding accounting period, any acquisition expenses included in those expenses are not to count as deemed BLAGAB management expenses for the period concerned.
Section 79: meaning of “acquisition expenses”
80
1
This section explains for the purposes of section 79 what is meant by “acquisition expenses”.
2
The following are “acquisition expenses” —
a
commissions (however described) other than commissions for persons who collect premiums from house to house,
b
any other expenses payable solely for the purpose of the acquisition of business, and
c
so much of any other expenses payable partly for that purpose, and partly for other purposes, as are properly attributable to the acquisition of business.
3
The exclusion from paragraph (a) of subsection (2) of commissions for persons who collect premiums from house to house does not prevent their counting as expenses under another paragraph of that subsection.
4
For the purposes of that subsection “the acquisition of business” includes —
a
the securing of the payment of increased or additional premiums in respect of a policy of insurance issued in respect of an insurance already made, and
b
the securing of the payment of increased or additional consideration in respect of an annuity contract already made.
Amounts treated as ordinary BLAGAB management expenses
81
1
This section applies in relation to amounts which meet the conditions in section 77 (2)(a) and (b) .
2
The relevant permissive rules apply for the purpose of treating the amounts as ordinary BLAGAB management expenses for the purposes of section 76 as they apply for the purpose of treating amounts as expenses of management for the purposes of Chapter 2 of Part 16 of CTA 2009 (companies with investment business).
3
The following provisions of CTA 2009 are “relevant permissive rules” —
a
section 1000 (costs of setting up employee share ownership trust),
b
section 1234 (payments for restrictive undertakings),
c
section 1235 (employees seconded to charities and educational establishments),
d
section 1237 (counselling and other outplacement expenses),
e
section 1238(1) to (3) (retraining courses),
f
sections 1239 to 1242 (redundancy payments and approved contractual payments),
g
section 1243 (payments made by the Government), and
h
section 1244 (contributions to local enterprise organisations or urban regeneration companies).
4
If —
a
an employer’s liability to corporation tax for an accounting period is determined on the assumption that a deduction for expenditure is allowed as a result of the application by this section of section 1238(1) to (3) of CTA 2009, and
b
the deduction would not otherwise have been allowed,
section 75(2) to (4) of CTA 2009 (retraining courses: recovery of tax) apply.
5
If —
a
an amount is treated as an ordinary BLAGAB management expense as a result of the application by this section of section 1242 of CTA 2009, and
b
the amount would otherwise be regarded as an acquisition expense for the purposes of section 79,
the expense is not to be so regarded.
6
Section 1253 of CTA 2009 (contributions to local enterprise organisations or urban regeneration companies: disqualifying benefits) applies in the case of amounts treated, as a result of the application by this section of section 1244 of that Act, as ordinary BLAGAB management expenses as it applies in the case of amounts for which a deduction has been made under section 1219 of that Act as a result of section 1244 of that Act.
7
For the purposes of this section —
a
references in any relevant permissive rule to a company carrying on business that consists wholly or partly of making investments or to a company with investment business are to be read as references to a company carrying on basic life assurance and general annuity business,
b
references in any relevant permissive rule to an amount being deductible under section 1219 of CTA 2009 are to be read as references to an amount being deductible as an ordinary BLAGAB management expense,
c
section 1239 of CTA 2009 is to be treated as having effect with the omission of subsection (1)(c),
d
the reference in section 1240(4) of CTA 2009 to sections 1224 to 1227 of that Act is to be read as a reference to section 77 (8) and (9) of this Act, and
e
section 1243 of CTA 2009 is to be treated as having effect with the omission of subsection (1)(c).
8
An amount is treated as an ordinary BLAGAB management expense as a result of this section only so far as it would not otherwise be regarded as an ordinary BLAGAB management expense.
Restrictions in relation to ordinary BLAGAB management expenses
82
1
This section applies in relation to an amount which is (or, but for this section, would be) regarded for the purposes of section 76 as an ordinary BLAGAB management expense of an insurance company.
2
Section 1249(1) and (2) of CTA 2009 (unpaid remuneration) apply for the purpose of determining the period of account for which the amount is debited in the accounts of the company for the purposes of section 77; but this subsection is subject to the operation of section 79.
3
Section 1249(1) and (3) of CTA 2009 apply for the purpose of determining whether the amount is to be regarded as an ordinary BLAGAB management expense of the company.
4
Section 1251(1) and (2) of CTA 2009 (car hire) apply for the purpose of determining the amount of the ordinary BLAGAB management expense of the company.
5
For the purposes of subsections (2) to (4) —
a
references in section 1249 or 1251 of CTA 2009 to a company with investment business are to be read as references to a company carrying on basic life assurance and general annuity business (and, accordingly, the reference in section 1251(1) to total profits is to be read as a reference to profits of basic life assurance and general annuity business), and
b
references in section 1249 or 1251 of CTA 2009 to an amount being deductible under section 1219 of CTA 2009 are to be read as references to an amount being deductible as an ordinary BLAGAB management expense.
6
If —
a
an amount is reduced as a result of subsection (4) or a corresponding rule,
b
subsequently there is a rebate (however described) of the hire charges, and
c
an amount representing the rebate is deductible as a reversed expense or taken into account in calculating the amount of an I - E receipt under section 92,
the amount that would otherwise be so deductible or taken into account is reduced by 15%.
7
If —
a
an amount is reduced as a result of subsection (4) or a corresponding rule,
b
subsequently a debt in respect of any of the hire charges is released otherwise than as part of a statutory insolvency arrangement, and
c
an amount representing the release is deductible as a reversed expense,
the amount that would otherwise be so deductible is reduced by 15%.
8
For the purposes of subsections (6) and (7) —
“corresponding rule” means section 56(2) or 1251(2) of CTA 2009 or section 48(2) of ITTOIA 2005,
“deductible as a reversed expense” means deductible at step 4 in section 76 as an expense reversed in an accounting period, and
“statutory insolvency arrangement” has the meaning given by section 1319(1) of CTA 2009.
General annuity business
83
1
This section applies if an insurance company pays qualifying BLAGAB annuities in an accounting period.
2
An amount equal to the difference between —
a
the total amount of those annuities paid by the company in the accounting period, and
b
the total of the amounts exempt under section 717 of ITTOIA 2005 (exemption for part of purchased life annuity payments) contained in those annuities so paid,
is treated for the purposes of section 76 as a deemed BLAGAB management expense for the accounting period.
3
An annuity is a “qualifying BLAGAB annuity” if —
a
it is referable to the company’s basic life assurance and general annuity business, and
b
it is paid under a contract made by the company in an accounting period beginning on or after 1 January 1992 (but see section 85).
4
For the purposes of this section the amounts exempt under section 717 of ITTOIA 2005 are so much of the payments under the qualifying BLAGAB annuities as would be within the exemption under that section if —
a
section 718 of ITTOIA 2005 were omitted, and
b
the exemption under section 717 of ITTOIA 2005 applied in relation to companies as well as individuals.
5
If a qualifying BLAGAB annuity (“the actual annuity”) is a steep-reduction annuity, the calculations required by subsection (2)(a) and (b) are to be made as if —
a
the contract for the actual annuity provided instead for the annuities identified below (“the deemed annuities”), and
b
the consideration for each of the deemed annuities were equal to an apportionment of the consideration for the actual annuity on a just and reasonable basis.
6
The deemed annuities are —
a
an annuity the payments in respect of which are confined to payments in respect of the actual annuity that fall to be made at the earliest time for the making in respect of that annuity of a reduced payment within section 84 (1)(c) , and
b
an annuity the payments in respect of which are all the payments in respect of the actual annuity other than those mentioned in paragraph (a) .
7
If a deemed annuity within subsection (6)(b) (“the later annuity”) would itself be a steep-reduction annuity, the deemed annuities —
a
do not include the later annuity, but
b
include instead the annuities which would be identified by subsection (6) (with as many further applications of this subsection as may be necessary for securing that none of the deemed annuities is a steep-reduction annuity) if references in that subsection to the actual annuity were to the later annuity.
8
This section needs to be read with section 84 (meaning of “steep-reduction annuity” etc).
General annuity business: meaning of “steep-reduction annuity” etc
84
1
For the purposes of section 83 an annuity is a “steep-reduction annuity” if —
a
the amount of any payment in respect of it (but not its term) depends on a contingency other than the duration of a human life or lives,
b
the annuitant is entitled to payments of different amounts at different times, and
c
the payments include a payment (“a reduced payment”) of an amount which is substantially smaller than the amount of at least one of the earlier payments.
2
If there are different intervals between the payments, it is to be assumed for the purposes of subsection (1)(b) and (c) —
a
that the annuitant’s entitlement, after the first payment, to payments is an entitlement to payments at yearly intervals on the anniversary of the first payment, and
b
that the amount to which the annuitant is assumed to be entitled is equal to the annuitant’s assumed entitlement for the year ending with the anniversary in question.
3
For this purpose the annuitant’s assumed entitlement for a year is determined as follows —
a
the annuitant’s entitlement to each payment is taken to accrue at a constant rate during the interval between the previous payment and that payment, and
b
the annuitant’s assumed entitlement for a year is taken to be equal to the total amount which, in accordance with paragraph (a) , is treated as accruing in the year.
4
In the case of an annuity to which subsection (2) applies, the reference in section 83 (6)(a) to the making of a reduced payment is to be read as a reference to the making of a payment which (applying subsection (3)(a) ) is taken to accrue at a rate that is substantially less than the rate at which at least one of the earlier payments is taken to accrue.
5
If —
a
a question arises whether a payment is substantially smaller than, or accrues at a rate substantially less than, an earlier payment, and
b
the annuitant or (as the case may be) every annuitant is an individual who is beneficially entitled to all the rights conferred on him or her as such an annuitant,
the question is determined without regard to so much of the difference between the amounts or rates as is referable to a reduction falling to be made as a result of a death.
6
If the amount of any one or more of the payments depends on a contingency, the annuitant’s entitlement to the payments is determined for the purposes of section 83 and this section according to whatever is the most likely outcome in relation to the contingency (applying any relevant actuarial principles).
7
If an agreement or other arrangement has effect for varying the rights of the annuitant in relation to a payment, the payment is taken for the purposes of section 83 and this section to be a payment of the amount to which the annuitant is entitled in accordance with the agreement or other arrangement.
8
For the purposes of this section references to a contingency include a contingency consisting wholly or partly in the exercise of an option.
General annuity business: payments made in pre-1992 accounting periods
85
1
If —
a
a payment in respect of an annuity is made by an insurance company under a group annuity contract made in a pre-1992 accounting period, and
b
the company’s liabilities first include an amount in respect of that annuity in a post-1992 accounting period,
the payment is treated for the purposes of section 83 (3)(b) as if the contract had been made in a post-1992 accounting period.
2
If —
a
a payment in respect of an annuity is made by a re-insurer under a re-insurance treaty made in a pre-1992 accounting period, and
b
the re-insurer’s liabilities first include an amount in respect of that annuity in a post-1992 accounting period,
the payment is, as respects the re-insurer, treated for the purposes of section 83 (3)(b) as if the treaty had been made in a post-1992 accounting period.
3
In this section —
“a pre-1992 accounting period” means an accounting period beginning before 1 January 1992,
“a post-1992 accounting period” means an accounting period beginning on or after 1 January 1992,
“group annuity contract” means a contract under which the insurance company undertakes to become liable to pay annuities to or in respect of persons who may subsequently be specified or otherwise ascertained under or in accordance with the contract (whether or not annuities under the contract are also payable to or in respect of persons who are specified or ascertained at the time the contract is made), and
“re-insurance treaty” means a contract under which one insurance company is obliged to cede, and another (referred to in this section as a “re-insurer”) to accept, the whole or part of a risk of a class or description to which the contract relates.
Special rules applying to I - E basis
Separate property businesses for BLAGAB etc
86
1
This section modifies the rules in sections 208 and 209 of CTA 2009 (basic meaning of UK and overseas property business) for the purpose of applying the I - E rules in relation to an insurance company.
2
The company is treated as carrying on separate UK property businesses or overseas property businesses in accordance with the following provisions.
3
The exploitation of land held otherwise than for the purposes of the company’s long-term business is treated as a separate business from the exploitation of land held for those purposes.
4
In the case of the exploitation of land held for the purposes of the company’s long-term business, each of the following is treated as a separate business —
a
the exploitation of land which is matched to BLAGAB liabilities of the company,
b
the exploitation of land which is matched to other long-term business liabilities of the company, and
c
the exploitation of land so far as it is not matched to long-term business liabilities of the company.
5
In the case of land part of which is matched to a BLAGAB liability or other long-term business liability, only the part of the land in question is to count for the purposes of this section as matched to the liability in question.
6
In this section “land” means any estate, interest or right in or over land.
Losses from property businesses where land held for long-term business
87
1
This section applies for the purpose of applying the I - E rules in relation to an insurance company if, in an accounting period, the company makes a loss in any of its separate UK property businesses or overseas property businesses within section 86 (4) .
2
The provisions of Chapter 4 of Part 4 of CTA 2010 (loss relief: property businesses) do not apply to the loss.
3
So far as the loss is referable, in accordance with Chapter 4, to the company’s basic life assurance and general annuity business, it is treated for the purposes of section 76 as a deemed BLAGAB management expense for the accounting period.
4
If the company has two or more separate property businesses within section 86 (4) , then for the purposes of subsection (3) the loss in question is taken to be the total net loss after —
a
setting the losses from the businesses which are referable, in accordance with Chapter 4, to the company’s basic life assurance and general annuity business, against
b
the profits from the businesses which are so referable.
Loan relationships, derivative contracts and intangible fixed assets
88
1
This section applies if an insurance company has —
a
credits or debits in respect of any loan relationships,
b
credits or debits in respect of any derivative contracts, or
c
credits or debits brought into account by the company under Part 8 of CTA 2009 (intangible fixed assets),
that are referable, in accordance with Chapter 4, to its basic life assurance and general annuity business.
2
In the application of the I - E rules in relation to the company’s basic life assurance and general annuity business —
a
the loan relationship rules,
b
the derivative contract rules, and
c
the intangible fixed asset rules,
have effect as if the activities carried on by the company in the course of its basic life assurance and general annuity business did not constitute the whole or any part of a trade or of a property business.
3
In the application of the I - E rules for an accounting period in relation to the company’s basic life assurance and general annuity business —
a
BLAGAB credits in respect of its loan relationships for the period are to count as income for the purposes of those rules only in so far as they exceed BLAGAB debits in respect of its loan relationships for the period, and
b
BLAGAB credits brought into account by the company under Part 8 of CTA 2009 for the period are to count as income for the purposes of those rules only in so far as they exceed BLAGAB debits brought into account by the company under that Part for the period.
4
References in subsection (3)(a) to BLAGAB credits or BLAGAB debits in respect of a company’s loan relationships include, as a result of subsection (2) and section 574 of CTA 2009, BLAGAB credits or BLAGAB debits in respect of the company’s derivative contracts.
5
If for an accounting period the BLAGAB debits mentioned in subsection (3)(a) exceed the BLAGAB credits mentioned there, the excess is dealt with in accordance with sections 388 to 391 of CTA 2009.
6
If for an accounting period the BLAGAB debits mentioned in subsection (3)(b) exceed the BLAGAB credits mentioned there, the excess —
a
is carried forward to the next accounting period, and
b
is treated for the purposes of section 76 as a deemed BLAGAB management expense for that period.
7
In this section —
“BLAGAB credits”, in relation to a company, means credits arising from the company’s long-term business that are referable, in accordance with Chapter 4, to its basic life assurance and general annuity business,
“BLAGAB debits”, in relation to a company, means debits arising from the company’s long-term business that are referable, in accordance with Chapter 4, to its basic life assurance and general annuity business,
“the loan relationship rules” means the rules set out in Part 5 of CTA 2009 (including provisions of other enactments by reference to which amounts are to be brought into account for the purposes of that Part),
“the derivative contract rules” means the rules set out in Part 7 of CTA 2009, and
“the intangible fixed asset rules” means the rules set out in Part 8 of CTA 2009.
Miscellaneous income and losses
89
1
In the application of the I - E rules for an accounting period in relation to an insurance company’s basic life assurance and general annuity business, BLAGAB miscellaneous income of the company for the period is to count as income for the purposes of those rules only in so far as it exceeds BLAGAB miscellaneous losses of the company for the period.
2
If for an accounting period the BLAGAB miscellaneous losses exceed the BLAGAB miscellaneous income, the excess —
a
is carried forward to the next accounting period, and
b
is treated for the purposes of section 76 as a deemed BLAGAB management expense for that period.
3
In this section —
“BLAGAB miscellaneous income”, in relation to a company, means income of the company arising from its long-term business which —
is chargeable under any provision to which section 1173 of CTA 2010 (miscellaneous charges) applies other than section 752 of CTA 2009 (non-trading gains on intangible fixed assets), and
is referable, in accordance with Chapter 4, to the company’s basic life assurance and general annuity business, and
“BLAGAB miscellaneous losses”, in relation to a company, means losses of the company arising from its long-term business which —
arise from miscellaneous transactions, and
are referable, in accordance with Chapter 4, to the company’s basic life assurance and general annuity business.
4
For the purposes of subsection (3) a transaction is a “miscellaneous transaction” if income arising from it would be chargeable under any provision to which section 1173 of CTA 2010 applies other than —
a
section 752 of CTA 2009, or
b
regulation 18(4) of the Offshore Funds (Tax) Regulations 2009 (offshore income gains).
5
For the purposes of this section references to income that is chargeable under any provision to which section 1173 of CTA 2010 applies are to income that, but for sections 68 and 69, would be chargeable under that provision.
Investment return where risk in respect of policy or contract re-insured
90
1
This section applies if an insurance company re-insures any risk in respect of a policy or contract attributable to its basic life assurance and general annuity business.
2
For the purposes of the I - E rules the investment return on the policy or contract is treated as accruing to the company while the risk remains re-insured by the company under the re-insurance arrangement.
3
The investment return that is treated as accruing to the company —
a
is treated for the purposes of those rules as income that is referable, in accordance with Chapter 4, to the company’s basic life assurance and general annuity business, and
b
is, accordingly, brought into account for the purposes of those rules at step 1 in section 73.
4
HMRC Commissioners may make provision by regulations as to the amount of investment return that is treated as accruing in each accounting period during which the re-insurance arrangement is in force.
5
HMRC Commissioners may by regulations exclude from the operation of this section —
a
such descriptions of insurance company,
b
such descriptions of policies or contracts, and
c
such descriptions of re-insurance arrangement,
as may be prescribed by the regulations.
6
Nothing in this section applies in relation to the re-insurance of a policy or contract where the policy or contract was made, and the re-insurance arrangement effected, before 29 November 1994.
Regulations under section 90 (4) : supplementary provision
91
1
This section applies to regulations under section 90 (4) .
2
The regulations may provide for the calculation of the investment return treated as accruing to a company in respect of a policy or contract in an accounting period to be made by reference to —
a
the total amount of sums paid (by way of premium or otherwise) by the company to the re-insurer during the accounting period and any earlier accounting periods,
b
the total amount of sums paid (by way of commission or otherwise) by the re-insurer to the company during the accounting period and any earlier accounting periods,
c
the total amount of the net investment return treated as accruing to the company in any earlier accounting periods, that is to say, net of tax at such rate as may be prescribed by the regulations, and
d
such percentage rate of return as may be prescribed by the regulations.
3
The regulations may make provision dealing with the transfer of the re-insurance arrangement from one insurance company to another.
4
The regulations must provide that the amount of investment return treated as accruing in respect of a policy or contract in the final accounting period during which the policy or contract is in force is the amount, ascertained in accordance with the regulations, by which the overall profit exceeds the total amount treated as accruing in earlier accounting periods.
5
“The overall profit” means the profit over the whole period during which the policy or contract, and the re-insurance arrangement, were in force.
6
If the overall profit is less than the total amount treated as accruing in earlier accounting periods, the difference —
a
must be set off against amounts treated as a result of section 90 as accruing in the final accounting period from other policies or contracts, and
b
if not fully set off as mentioned in paragraph (a) , may be carried forward for set-off against amounts treated as a result of that section as accruing in subsequent accounting periods.
7
The regulations may —
a
make different provision for different cases or circumstances, and
b
contain incidental, supplementary, consequential, transitional, transitory or saving provision.
8
An example of the kind of supplementary provision within subsection (7)(b) is provision requiring payments made during an accounting period to be treated as made on such date or dates as may be prescribed by the regulations.
Deemed I - E receipts
Certain BLAGAB trading receipts to count as deemed I - E receipts
92
1
This section applies if —
a
an insurance company has receipts that are taken into account in calculating its BLAGAB trade profit or loss (see section 136) for an accounting period,
b
the receipts would not fall within the charge to corporation tax apart from this section, and
c
the receipts are not excluded receipts.
2
The appropriate amount of the receipts is an I - E receipt of the company for the accounting period.
3
The “appropriate amount” of the receipts is found by deducting expenses from the receipts so far as is necessary for calculating the full amount of the profits.
4
Chapter 1 of Part 20 of CTA 2009 (general rules for restricting deductions) is to apply to that calculation.
5
The following receipts are “excluded” receipts —
a
premiums,
b
sums received under re-insurance contracts (but see subsection (6) for exceptions),
c
sums which do not fall within the charge to corporation tax because of an exemption,
d
payments received under the Financial Services Compensation Scheme, and
e
payments received from other insurance companies to enable the company to meet its obligations to policyholders.
6
A sum received under a re-insurance contract is not an excluded receipt if —
a
it is a re-insurance commission (however described), or
b
it is a sum calculated to any extent by reference to the ordinary BLAGAB management expenses of the company referable to the accounting period (within the meaning of section 77).
Minimum profits charge
Minimum profits test
93
1
This section applies if an insurance company has a BLAGAB trade profit for an accounting period.
2
A comparison must be made between —
a
the I - E profit or excess BLAGAB expenses for the accounting period, and
b
the BLAGAB trade profit for the accounting period,
adjusted as need be in accordance with sections 94 and 124.
3
In making the calculation required by subsection (2)(a) , it is to be assumed that this Chapter has effect with the omission of subsection (5)(a) (but, apart from that, all the other rules in this Chapter have effect for the purposes of that calculation).
4
If there are excess BLAGAB expenses for the accounting period, the amount of the excess is treated for the purposes of this section as a negative figure equal to that amount.
5
If, for the accounting period, the adjusted BLAGAB trade profit exceeds the adjusted I - E profit or excess BLAGAB expenses —
a
an amount equal to the difference is an I - E receipt of the company for the accounting period (see section 73), and
b
the same amount is carried forward to the company’s next accounting period as an expense (see section 76).
Adjustment of I - E profit or excess BLAGAB expenses
94
1
This section applies if the BLAGAB trade profit for the accounting period includes non-taxable distributions receivable by the company in that period that are referable, in accordance with Chapter 7, to the company’s basic life assurance and general annuity business.
2
For the purposes of section 93 (5) (the comparison of the BLAGAB trade profit with the I - E profit or excess BLAGAB expenses), the calculation required by section 73 is performed again but adding to the amount of “I” found by step 4 the total amount of the non-taxable distributions receivable by the company in the accounting period that are so referable.
3
Accordingly, once an adjustment is made in accordance with subsection (2) , an amount of excess BLAGAB expenses for the accounting period might become an adjusted I - E profit for that period.
4
For the purposes of this Part “non-taxable distributions” means distributions that are exempt for the purposes of Part 9A of CTA 2009 (company distributions).
5
For the purposes of this Part the amount of a non-taxable distribution does not include any amount withheld from it on account of tax payable under the laws of a territory outside the United Kingdom.
Non-BLAGAB allowable losses
Use of non-BLAGAB allowable losses to reduce I - E profit
95
1
This section applies if —
a
an insurance company has an I - E profit for an accounting period, and
b
non-BLAGAB allowable losses have accrued to the company that are available for deduction in accordance with section 210A(2) of TCGA 1992 from the shareholders’ share of BLAGAB chargeable gains that have accrued to the company.
2
Those losses may be deducted from those gains in accordance with that provision so as to reduce the amount of the I - E profit for the accounting period to nil but no further.
3
For the purposes of subsection (1)(a) , assume that non-BLAGAB allowable losses cannot be deducted from any BLAGAB chargeable gains (and, accordingly, ignore the effect of this section).
Overseas life insurance companies
Expenses referable to exempt FOTRA profits
96
1
This section applies if the profits for an accounting period of the basic life assurance and general annuity business carried on by an overseas life insurance company in the United Kingdom consist of or include exempt FOTRA profits.
2
In making the calculation required by step 1 of section 76 for the accounting period, ignore so much of the ordinary BLAGAB management expenses of the company as are referable to exempt FOTRA profits.
3
The relevant proportion of those expenses is to be regarded for the purposes of this section as referable to exempt FOTRA profits.
4
The relevant proportion is —
FOTRA FOTRA + 1
where —
FOTRA is the amount of the exempt FOTRA profits arising in the accounting period, and
I is the amount of I found by the calculations required by step 4 in section 73 in relation to the company’s basic life assurance and general annuity business for the accounting period.
5
In this section “exempt FOTRA profits” means profits in respect of which no liability to corporation tax arises as a result of section 1279 of CTA 2009.
CHAPTER 4
Apportionment rules for I - E charge
Introduction
Application of Chapter
97
1
This Chapter applies in the case of an insurance company that carries on —
a
basic life assurance and general annuity business, and
b
other business.
2
This Chapter contains rules for determining for the purposes of Chapter 3 —
a
the credits or other income, the debits or other losses and the expenses that are referable to the company’s basic life assurance and general annuity business, and
b
the chargeable gains and allowable losses accruing on the disposal of assets (or parts of assets) that are referable to the company’s basic life assurance and general annuity business.
Allocation of income, losses and expenses
Commercial allocation
98
1
This section makes provision for determining —
a
the credits or other income and the debits or other losses arising from the company’s long-term business, and
b
the expenses incurred in the course of the company’s long-term business,
that, for the purposes of Chapter 3, are to be regarded as referable to its basic life assurance and general annuity business.
2
Those items are to be determined in accordance with an acceptable commercial method adopted by the company for the period of account in which the income or losses arise or the expenses are incurred.
3
A method is an “acceptable commercial method” if, in all the circumstances, it can reasonably be regarded as providing a fair method for the purposes of Chapter 3 for determining for a period of account what is referable to the company’s basic life assurance and general annuity business.
4
The Treasury may make regulations for the purposes of this section —
a
prescribing cases in which a method is, or is not, to be regarded as an acceptable commercial method, and
b
prescribing cases in which the only acceptable commercial method is to be a method prescribed, or of a description prescribed, in the regulations.
5
Subject to any provision made by regulations under subsection (4) , the method adopted for the purposes of this section for a period of account —
a
must be consistent with the method adopted for the purposes of section 115 for that period, and
b
in the case of an overseas life insurance company, must also be consistent with the method for that period for attributing assets in accordance with the provision made by or under Chapter 4 of Part 2 of CTA 2009 to its permanent establishment in the United Kingdom.
6
In this section “debits or other losses” means —
a
losses in any separate UK property business carried on by the company which is within section 86 (4) ,
b
losses in any separate overseas business carried on by the company which is within section 86 (4) ,
c
debits in respect of any loan relationships of the company,
d
debits in respect of any derivative contracts of the company,
e
debits brought into account by the company under Part 8 of CTA 2009 (intangible fixed assets), and
f
losses of the company which arise from miscellaneous transactions (as defined by section 89 (4) ).
Allocation of chargeable gains and allowable losses on disposals of assets
Application of sections 100 and 101
99
1
Sections 100 and 101 apply for determining the chargeable gains or allowable losses that, for the purposes of Chapter 3, are to be regarded as referable to a company’s basic life assurance and general annuity business whenever it disposes of assets held for the purposes of its long-term business (including cases where, as a result of Chapter 8 or any other provision of the Corporation Tax Acts, it is deemed to make a disposal).
2
Expressions that are used in sections 100 and 101 and in TCGA 1992 have the same meaning in those sections as they have for the purposes of that Act.
Assets wholly or partly matched to BLAGAB liabilities
100
1
If, immediately before the disposal, the whole of the asset was matched to a BLAGAB liability, the whole of the gain or loss is referable to the company’s basic life assurance and general annuity business.
2
If, immediately before the disposal, a part of the asset was matched to a BLAGAB liability, the appropriate portion of the gain or loss is referable to the company’s basic life assurance and general annuity business.
3
“The appropriate proportion” means the proportion equal to the proportion of the asset matched to the BLAGAB liability.
4
If, as a result of Chapter 8, there is a disposal of a part of an asset where the part concerned is matched to a BLAGAB liability, the whole of the gain or loss is referable to the company’s basic life assurance and general annuity business.
5
The concept of the whole or a part of an asset being matched to a BLAGAB liability is explained by section 138.
Commercial allocation for disposals not wholly dealt with by section 100
101
1
This section applies if, in the case of the disposal —
a
no part of the gain or loss is dealt with by section 100, or
b
section 100 deals with only a proportion of the gain or loss.
2
The gain or loss, or (as the case may be) the remaining proportion of the gain or loss, which is referable to the company’s basic life assurance and general annuity business is determined in accordance with an acceptable commercial method adopted by the company for the period of account in which the disposal is made.
3
A method is an “acceptable commercial method” if it secures that gains or losses are referable to the company’s basic life assurance and general annuity business in a way that fairly represents the contribution that the assets in question have made to that business during the period in which they have been held for the purposes of the company’s long-term business.
4
The Treasury may make regulations for the purposes of this section —
a
prescribing cases in which a method is, or is not, to be regarded as an acceptable commercial method, and
b
prescribing cases in which the only acceptable commercial method is to be a method prescribed, or of a description prescribed, in the regulations.
5
Subject to any provision made by regulations under subsection (4) , the method adopted for the purposes of this section for a period of account —
a
must be consistent with the method adopted for the purposes of section 98 for that period and the method adopted for the purposes of section 115 for that period, and
b
in the case of an overseas life insurance company, must also be consistent with the method for that period for attributing assets in accordance with the provision made by or under Chapter 4 of Part 2 of CTA 2009 to its permanent establishment in the United Kingdom.
CHAPTER 5
I - E profit: policyholders’ rate of tax
Tax rate on policyholders’ share of I - E profit
Policyholders’ rate of tax on policyholders’ share of I - E profit
102
1
This section applies if an insurance company has an I - E profit for an accounting period.
2
The rate of corporation tax chargeable for a financial year on the policyholders’ share (if any) of the I - E profit is the policyholders’ rate of tax.
3
The policyholders’ rate of tax is the rate at which income tax at the basic rate is charged for the tax year that begins on 6 April in the financial year.
4
The policyholders’ share of the I - E profit is determined in accordance with section 103.
5
The policyholders’ share of the I - E profit for an insurance company’s accounting period is to be left out of account in determining for the purposes of Part 3 of CTA 2010 (companies with small profits) —
a
the augmented profits of the company for the accounting period, and
b
the taxable total profits of the company for the accounting period.
Rules for determining policyholders’ share of I - E profit
103
1
This section determines for the purposes of section 102 the policyholders’ share of the I - E profit of an insurance company for an accounting period.
2
If the basic life assurance and general annuity business of the company carried on by the company in the accounting period is mutual business, the policyholders’ share of the I - E profit is the whole of that profit.
3
In any other case, the policyholders’ share of the I - E profit is determined as follows.
4
The first step is to calculate whether the company has a BLAGAB trade profit for the accounting period, and, if so, its amount.
5
If the company does not have a BLAGAB trade profit for that period, the policyholders’ share of the I - E profit is the whole of that profit.
6
If —
a
the company has a BLAGAB trade profit for that period, and
b
the adjusted amount of the BLAGAB trade profit is less than the amount of the I - E profit for that period,
the difference between those amounts represents the policyholders’ share of the I - E profit.
7
If —
a
the company has a BLAGAB trade profit for that period, and
b
the adjusted amount of the BLAGAB trade profit is equal to or more than the amount of the I - E profit,
there is no policyholders’ share of the I - E profit.
8
References to the adjusted amount of the BLAGAB trade profit are to be read in accordance with section 104.
Meaning of “the adjusted amount”
104
1
This section explains for the purposes of section 103 what is meant by the adjusted amount of the BLAGAB trade profit.
2
The following adjustments are to be made to the amount of the BLAGAB trade profit.
3
If relief is available under section 124 (carry forward of BLAGAB trade losses against subsequent profits), the BLAGAB trade profit is to be reduced as mentioned in that section.
4
If, as a result of relief given under that section, the BLAGAB trade profit is reduced to nil, then the adjusted amount of the BLAGAB trade profit for the purposes of section 103 is nil.
5
If —
a
the BLAGAB trade profit is not reduced to nil as a result of relief given under section 124 or no relief is available under that section, and
b
in the accounting period BLAGAB non-taxable distributions are receivable by the company,
the BLAGAB trade profit is reduced or further reduced (but not below nil) by subtracting from it an amount equal to the shareholders’ share of those distributions.
6
The BLAGAB trade profit as so reduced or further reduced is the adjusted BLAGAB trade profit for the purposes of section 103.
Meaning of “BLAGAB non-taxable distributions” and “shareholders’ share”
105
1
This section explains for the purposes of section 104 what is meant by —
“BLAGAB non-taxable distributions”, and
“the shareholders’ share” of BLAGAB non-taxable distributions.
2
Non-taxable distributions are “BLAGAB” non-taxable distributions if they are referable, in accordance with Chapter 7, to the company’s basic life assurance and general annuity business.
3
The “shareholders’ share” of the BLAGAB non-taxable distributions receivable by the company in the accounting period is the relevant proportion of those distributions.
4
The relevant proportion is —
BTP BNTD + 1
where —
BTP is the amount of the BLAGAB trade profit of the company for the accounting period,
BNTD is the amount of the BLAGAB non-taxable distributions receivable by the company in the accounting period, and
I is the total of the amounts given by the calculations required by steps 1 to 3 in section 73 (I - E basis: income referable to BLAGAB) in relation to the company’s basic life assurance and general annuity business for the accounting period.
5
If BTP exceeds BNTD + I, the shareholders’ share of the BLAGAB non-taxable distributions receivable by the company in the accounting period is the whole of those distributions.
Policyholder tax and calculation of BLAGAB trade profit or loss
Deduction for current policyholder tax
106
1
This section applies for the purpose of calculating the BLAGAB trade profit or loss for an accounting period of any basic life assurance and general annuity business carried on by an insurance company in a case where the company has an I - E profit for that period.
2
In calculating the profit or loss for the accounting period, a deduction is allowed for an amount equal to the amount of corporation tax charged at the policyholders’ rate of tax on the policyholders’ share of the company’s I - E profit for that period.
Expenses or receipts for deferred policyholder tax
107
1
This section applies for the purpose of calculating the BLAGAB trade profit or loss for a period of account of any basic life assurance and general annuity business carried on by an insurance company.
2
In calculating the profit or loss, an amount is brought into account that is equal to —
a
the closing deferred policyholder tax balance for the period of account, less
b
the closing deferred policyholder tax balance for the previous period of account.
3
The amount —
a
is brought into account as an expense, if it is a negative figure, and
b
is brought into account as a receipt, if it is a positive figure.
4
The amount is brought into account under this section only if, in accordance with generally accepted accounting practice, it is debited or credited in accounts drawn up by the company for the period of account.
5
If the closing deferred policyholder tax balance for a period of account is a liability, the amount of the balance is taken to be a negative figure for the purposes of this section.
6
If the closing deferred policyholder tax balance for a period of account is an asset, the amount of the balance is taken to be a positive figure for the purposes of this section.
7
Section 108 applies for determining the closing deferred policyholder tax balance for a period of account.
Meaning of “the closing deferred policyholder tax balance” etc
108
1
For the purposes of section 107 “the closing deferred policyholder tax balance for a period of account” means so much of the closing amount shown, in accordance with generally accepted accounting practice, in the accounts of the company for that period in respect of deferred tax as is wholly attributable to policyholder tax.
2
Provision forming part of the closing amount is “wholly attributable to policyholder tax” if —
a
the provision is made in respect of a BLAGAB matter (see subsection (3) ), and
b
anything included in the closing amount in respect of that matter is calculated wholly by reference to the policyholders’ rate of tax chargeable on the policyholders’ share of the company’s I - E profit for any accounting period.
3
A “BLAGAB matter” means —
a
an amount of excess BLAGAB expenses,
b
an amount of acquisition expenses falling to be relieved in the future in accordance with section 79,
c
an amount of expenses otherwise falling to be taken into account in the future under the I - E rules,
d
an amount of BLAGAB allowable loss (within the meaning of section 210A of TCGA 1992) carried forward for future use,
e
an amount to which section 213 of TCGA 1992 applies (spreading of gains and losses under section 212), or
f
an amount in respect of the future disposal (or part disposal) of an asset which would fall to be taken into account in accordance with section 75.
4
If —
a
for a period of account of the company the provision made in respect of a BLAGAB matter is taken into account for the purposes of section 107, and
b
for a subsequent period of account of the company the provision made in respect of that matter is no longer wholly attributable to policyholder tax because the condition in subsection (2)(b) ceases to be met,
there is to be a reversal in the subsequent period of account in respect of the provision (so far as section 107 does not otherwise apply in relation to the case).
5
The reversal in the subsequent period of account is to be made as follows —
a
if the provision was an amount which for accounting purposes was regarded as an asset, a negative amount equal to that amount is to be taken into account in calculating the closing deferred policyholder tax balance for that period for the purposes of section 107, and
b
if the provision was an amount which for accounting purposes was regarded as a liability, a positive amount equal to that amount is to be taken into account in calculating the closing deferred policyholder tax balance for that period for the purposes of section 107.
6
The Treasury may by order amend the definition of a “BLAGAB matter”.
7
An order under subsection (6) may contain incidental, supplementary, consequential, transitional, transitory or saving provision.
CHAPTER 6
Trade calculation rules applying to long-term business
Application of Chapter
109
1
The rules contained in this Chapter have effect for the purpose of —
a
calculating the BLAGAB trade profit or loss of any basic life assurance and general annuity business carried on by an insurance company, and
b
calculating for corporation tax purposes the profits of any non-BLAGAB long-term business carried on by an insurance company,
but, in the case of section 112, see also subsection (6) of that section.
2
In this Chapter references to the calculation of the profits are, in the case of the calculation of the BLAGAB trade profit or loss, to be read as references to the calculation of that profit or loss.
3
See also section 47 of CTA 2009 (losses calculated on same basis as profits).
4
In the case of the calculation of the BLAGAB trade profit or loss, see also sections 106 to 108.
Allocations to policyholders
110
1
In calculating the profits for an accounting period, a deduction is allowed for any amount which is allocated to policyholders or annuitants in respect of the accounting period.
2
But there is no deduction for an amount of a capital nature that —
a
is allocated to holders of with-profits policies, and
b
has not been funded from an amount credited in accounts of the business drawn up in accordance with generally accepted accounting practice (whether drawn up by the company or another company).
3
For this purpose a payment made in connection with the reattribution of inherited estate is to be regarded as an amount of a capital nature.
4
“With-profits policies” means policies under which the holders are eligible to participate in surplus.
Dividends and other distributions
111
1
Dividends or other distributions —
a
which are receivable by the company, and
b
which are referable, in accordance with Chapter 7, to the business concerned,
are to be brought into account as receipts in calculating the profits.
2
This rule —
a
applies whether or not the distributions are exempt for the purposes of Part 9A of CTA 2009 or would otherwise be dealt with under that Part, but
b
does not apply in the case of distributions that are of a capital nature.
Index-linked gilt-edged securities
112
1
If, for an accounting period, a company has a loan relationship which is represented by an index-linked gilt-edged security, sections 400 to 400C of CTA 2009 (adjustments for changes in index) are not to apply in calculating the profits for the accounting period.
2
But subsection (1) does not apply to loan relationships of the company that are qualifying PHI loan relationships.
3
A loan relationship is a “qualifying PHI loan relationship” if
a
the loan relationship is identified in the records of the company as an asset held for the purposes of index-linked PHI business carried on by the company, and
b
none of the credits or debits in respect of the loan relationship are referable to BLAGAB,
but see subsection (5) for a case in which a loan relationship meeting the conditions in paragraphs (a) and (b) is not a qualifying PHI loan relationship.
4
Credits or debits are referable to BLAGAB if —
a
they are referable, in accordance with Chapter 4, to any basic life assurance and general annuity business of the company, or
b
they are taken into account in calculating the profit or loss that is, in accordance with Chapter 7, allocated to any basic life assurance and general annuity business of the company.
5
A loan relationship which, but for this subsection, would be a qualifying PHI loan relationship of the company is not a qualifying PHI loan relationship if the value of the loan relationship when added to the value of qualifying PHI loan relationships of the company exceeds the value of the liabilities incurred by the company for the purposes of its index-linked PHI business.
6
A loan relationship of the company which at any time is a qualifying PHI loan relationship is to be regarded for the purposes of this Part as an asset which is held at that time for the purposes of the company’s long-term business but which is not matched to its long-term business liabilities or held by it for the purposes of any with-profits funds.
7
In this section —
“index-linked gilt-edged security” has the same meaning as it has in sections 400 to 400C of CTA 2009 (see section 399(4) of that Act), and
“index-linked PHI business” means PHI business so far as consisting of the effecting or carrying out of contracts of long-term insurance under which the benefits payable are linked to an index of prices published by the Statistics Board.
Receipts or expenses relating to long-term business fixed capital
113
Receipts or expenses which arise from an asset forming part of the long-term business fixed capital of the company are to be left out of account in calculating the profits.
CHAPTER 7
Trading apportionment rules
Application of Chapter
114
1
This Chapter applies in the case of an insurance company which, as a result of section 66, has —
a
a business consisting of basic life assurance and general annuity business, and
b
a non-BLAGAB long-term business.
2
The rules contained in this Chapter determine —
a
how to allocate between those two businesses the profits or loss of the long-term business calculated in accordance with generally accepted accounting practice, and
b
how to allocate the tax adjustments in making the calculations mentioned in subsection (5)(a) and (b) .
3
The amount of the profits or loss mentioned in subsection (2)(a) is referred to in this Chapter as the “accounting profit or loss”.
4
For the purposes of this Chapter “the tax adjustments” means the adjustments required or authorised by law in calculating for corporation tax purposes the profits of the long-term business (applying the same rules as apply to the calculation for those purposes of the profits of non-BLAGAB long-term business).
5
The rules contained in this Chapter have effect for the purpose of —
a
calculating the BLAGAB trade profit or loss of the company, and
b
calculating for corporation tax purposes the profits of the non-BLAGAB long-term business carried on by the company.
Commercial allocation of accounting profit or loss and tax adjustments
115
1
The accounting profit or loss, and the tax adjustments, are to be allocated between the two separate businesses in accordance with an acceptable commercial method adopted by the company.
2
A method is an “acceptable commercial method” if it secures that the accounting profit or loss, and the tax adjustments, are allocated to the two separate businesses in a way that fairly represents the contribution made by those businesses to the accounting profit or loss as adjusted to take into account the tax adjustments.
3
The Treasury may make regulations for the purposes of this section —
a
prescribing cases in which a method is, or is not, to be regarded as an acceptable commercial method, and
b
prescribing cases in which the only acceptable commercial method is to be a method prescribed, or of a description prescribed, in the regulations.
4
Subject to any provision made by regulations under subsection (3) , the method adopted for the purposes of this section for a period of account —
a
must be consistent with the method adopted for the purposes of section 98 for that period, and
b
in the case of an overseas life insurance company, must also be consistent with the method for that period for attributing assets in accordance with the provision made by or under Chapter 4 of Part 2 of CTA 2009 to its permanent establishment in the United Kingdom.
CHAPTER 8
Assets held for purposes of long-term business
Transfers of assets from different categories
UK life insurance companies
116
1
If, at any time in a period of account of a UK life insurance company, an asset (or a part of an asset) held by the company —
a
ceases to be within one of the long-term business categories, and
b
comes within another of those categories,
the company is treated for the purposes of corporation tax on chargeable gains as if it had disposed of and immediately re-acquired the asset (or part) at that time for a consideration equal to the fair value of the asset (or part) at that time.
2
The long-term business categories in question are —
a
assets which are matched to BLAGAB liabilities of the company,
b
assets which are matched to other long-term business liabilities of the company,
c
assets which are held by the company for the purposes of any with-profits fund but which are not matched to its long-term business liabilities, and
d
assets which are held for the purposes of the company’s long-term business but which are not matched to its long-term business liabilities or held by it for the purposes of any with-profits funds.
3
If the company has more than one with-profits fund within subsection (2)(c) , the assets which are held by it for the purposes of a particular fund but which are not matched to its long-term business liabilities are treated as assets within a separate long-term business category.
4
Subsection (1) does not apply if all the income of the company’s long-term business is chargeable to corporation tax on income under section 35 of CTA 2009.
5
If, at any time in a period of account of a UK life insurance company, an asset (or a part of an asset) held by the company —
a
ceases to be within a category set out in subsection (6) , and
b
comes within the other category set out there,
the company is treated for the purposes of corporation tax as if it had disposed of and immediately re-acquired the asset (or part) for a consideration equal to the fair value of the asset (or part) at that time.
6
The categories in question are —
a
assets which are held for the purposes of the company’s long-term business, and
b
other assets.
Overseas life insurance companies: rule corresponding to s.116
117
1
If, at any time in a period of account of an overseas life insurance company, an asset (or a part of an asset) held by the company —
a
ceases to be within one of the UK long-term business categories, and
b
comes within another of those categories,
the company is treated for the purposes of corporation tax on chargeable gains as if it had disposed of and immediately re-acquired the asset (or part) at that time for a consideration equal to the fair value of the asset (or part) at that time.
2
The UK long-term business categories in question are —
a
UK assets which are matched to BLAGAB liabilities of the company,
b
UK assets which are matched to other long-term business liabilities of the company,
c
UK assets which are held by the company for the purposes of any with-profits fund but which are not matched to its long-term business liabilities, and
d
UK assets which are held for the purposes of the company’s long-term business but which are not matched to its long-term business liabilities or held by it for the purposes of any with-profits funds.
3
If the company has more than one with-profits fund within subsection (2)(c) , the UK assets which are held by it for the purposes of a particular fund but which are not matched to its long-term business liabilities are treated as assets within a separate UK long-term business category.
4
Subsection (1) does not apply if all the income of the company’s long-term business is chargeable to corporation tax on income under section 35 of CTA 2009.
5
If, at any time in a period of account of an overseas life insurance company, an asset (or a part of an asset) held by the company —
a
ceases to be within a category set out in subsection (6) , and
b
comes within another category set out there,
the company is treated for the purposes of corporation tax as if it had disposed of and immediately re-acquired the asset (or part) for a consideration equal to the fair value of the asset (or part) at that time.
6
The categories in question are —
a
UK assets which are held for the purposes of the company’s long-term business,
b
other UK assets, and
c
assets which are held by the company but which are not UK assets.
7
For the purposes of this section and section 118, assets (whether situated in the United Kingdom or elsewhere) are “UK assets” of an overseas life insurance company if, in accordance with the provision made by or under Chapter 4 of Part 2 of CTA 2009, they fall to be attributed to the permanent establishment in the United Kingdom through which the company carries on life assurance business.
Transfers of business and transfers within a group
118
1
If —
a
as a result of an insurance business transfer scheme transferring long-term business, a UK life insurance company or an overseas life insurance company acquires an asset, and
b
the asset (or part of it) is within one of the applicable categories at the time immediately before the acquisition but is not within that category immediately after that time,
the transferor is treated for the purposes of corporation tax on chargeable gains as if it had disposed of and immediately re-acquired the asset (or part) at the time immediately before the acquisition.
2
The consideration for this deemed disposal and re-acquisition is equal to the fair value of the asset (or part) at that time.
3
If the transferor or the transferee is an overseas life insurance company, an asset (or part of an asset) is taken as being in the same category immediately before and after the acquisition if the asset (or part) —
a
was within one category immediately before the acquisition, and
b
was within a corresponding category immediately after the acquisition.
4
Subsections (1) to (3) do not apply if all the income of the long-term business of either the transferor or the transferee is chargeable to corporation tax on income under section 35 of CTA 2009.
5
For the purposes of subsections (1) to (3) “the applicable categories” means —
a
in the case of a UK life insurance company, the long-term business categories or a category of assets which are not held for the purposes of its long-term business, and
b
in the case of an overseas life insurance company, the UK long-term business categories, a category of UK assets which are not held for the purposes of its long-term business or a category of assets which are held by it but which are not UK assets.
6
If —
a
a UK life insurance company or an overseas life insurance company disposes of or acquires an asset (or part of an asset),
b
immediately before or after doing so, the asset (or part) is within the applicable category, and
c
section 171 or 173 of TCGA 1992 (transfers within a group) would, but for this subsection, apply to the disposal or acquisition,
that section does not apply to the disposal or acquisition.
7
For the purposes of subsection (6) “the applicable category” means —
a
in the case of a UK life insurance company, the category of assets which are held for the purposes of its long-term business, and
b
in the case of an overseas life insurance company, the category of UK assets which are held for the purposes of its long-term business.
Share pooling rules
UK life insurance companies
119
1
If the assets of a UK life insurance company include securities of a class all of which would, but for this section, be regarded as one holding for the purposes of corporation tax on chargeable gains, the following pooling rules apply instead for those purposes —
a
so many of the securities so far as matched to BLAGAB liabilities of the company are treated as a separate holding,
b
so many of the securities so far as matched to other long-term business liabilities of the company are treated as a separate holding,
c
so many of the securities as are held by the company for the purposes of any with-profits fund but are not matched to its long-term business liabilities are treated as a separate holding,
d
so many of the securities as are held for the purposes of the company’s long-term business but are not matched to its long-term business liabilities or held by it for the purposes of any with-profits funds are treated as a separate holding, and
e
any remaining securities are treated as a separate holding which is held otherwise than for the purposes of the company’s long-term business.
2
If the company has more than one with-profits fund within subsection (1)(c) , so many of the securities as are held by it for the purposes of a particular fund but are not matched to its long-term business liabilities are treated as a separate holding for the purposes of corporation tax on chargeable gains.
3
Subsection (1) does not apply if all the income of the company’s long-term business is chargeable to corporation tax on income under section 35 of CTA 2009.
4
In that case, if the company’s assets include securities of a class all of which would, but for this section, be regarded as one holding for the purposes of corporation tax on chargeable gains, the following pooling rules apply instead for those purposes —
a
so many of the securities as are held for the purposes of its long-term business are treated as a separate holding, and
b
any remaining securities are treated as a separate holding which is held otherwise than for the purposes of its long-term business.
Overseas life insurance companies: rule corresponding to s.119
120
1
If the assets of an overseas life insurance company include securities of a class all of which would, but for this section, be regarded as one holding for the purposes of corporation tax on chargeable gains, the following pooling rules apply instead for those purposes —
a
so many of the securities so far as UK securities matched to BLAGAB liabilities of the company are treated as a separate holding,
b
so many of the securities so far as UK securities matched to other long-term business liabilities of the company are treated as a separate holding,
c
so many of the securities as are UK securities held by the company for the purposes of any with-profits fund but not matched to its long-term business liabilities are treated as a separate holding,
d
so many of the securities as are UK securities held for the purposes of the company’s long-term business but not matched to its long-term business liabilities or held by it for the purposes of any with-profits funds are treated as a separate holding,
e
any remaining UK securities are treated as a separate holding which is held otherwise than for the purposes of the company’s long-term business, and
f
any securities which are held by the company but which are not UK securities are treated as a separate holding.
2
If the company has more than one with-profits fund within subsection (1)(c) , so many of the securities as are UK securities held by it for the purposes of a particular fund but are not matched to its long-term business liabilities are treated as a separate holding for the purposes of corporation tax on chargeable gains.
3
Subsection (1) does not apply if all the income of the company’s long-term business is chargeable to corporation tax on income under section 35 of CTA 2009.
4
In that case, if the company’s assets include securities of a class all of which would, but for this section, be regarded as one holding for the purposes of corporation tax on chargeable gains, the following pooling rules apply instead for those purposes —
a
so many of the securities as are UK securities held for the purposes of its long-term business are treated as a separate holding,
b
any remaining UK securities are treated as a separate holding which is held otherwise than for the purposes of its long-term business, and
c
any securities which are held by the company but which are not UK securities are treated as a separate holding.
5
For the purposes of this section, securities (whether situated in the United Kingdom or elsewhere) are “UK securities” of an overseas life insurance company if, in accordance with the provision made by or under Chapter 4 of Part 2 of CTA 2009, they fall to be attributed to the permanent establishment in the United Kingdom through which the company carries on life assurance business.
Sections 119 and 120: supplementary
121
1
The applicable pooling rules also apply if the assets of the company in question include securities of a class and but for this section —
a
some of them would be regarded as a 1982 holding for the purposes of corporation tax on chargeable gains, and
b
the rest of them would be regarded as a section 104 holding for those purposes.
2
“The applicable pooling rules” means —
a
the pooling rules set out in section 119 (1)(a) to (e) and (4)(a) and (b) , or
b
the pooling rules set out in section 120 (1)(a) to (f) and (4)(a) to (c) .
3
In applying the applicable pooling rules in a case within subsection (1) —
a
the reference in any of the paragraphs in section 119 (1) or (4) or 120 (1) or (4) to a separate holding is to be read, where necessary, as a reference to a separate 1982 holding and a separate section 104 holding, and
b
the questions whether that reading is necessary for a paragraph and, if it is, how many securities falling within the paragraph constitute each of the two holdings are determined in accordance with paragraph 12 of Schedule 6 to FA 1990 and the identification rules applying on any subsequent acquisitions and disposals.
4
If the applicable pooling rules apply, section 105 of TCGA 1992 has effect as if securities regarded as included in different holdings as a result of those rules were securities of different classes.
5
In this section —
“1982 holding” has the same meaning as in section 109 of TCGA 1992, and
“section 104 holding” has the same meaning as in section 104(3) of TCGA 1992.
6
In this section and sections 119 and 120 “securities” means —
a
shares,
b
securities of a company, and
c
any other assets where they are of a nature to be dealt in without identifying the particular assets disposed of or acquired.
Long-term business fixed capital
Assets forming part of long-term business fixed capital
122
For the purposes of this Chapter assets that form part of the long-term business fixed capital of an insurance company are to be regarded as assets held by the company otherwise than for the purposes of its long-term business.
CHAPTER 9
Relief for BLAGAB trade losses etc
The reliefs
Relief for BLAGAB trade losses against total profits
123
1
Section 37 of CTA 2010 (relief for trade losses against total profits) is to apply in relation to a BLAGAB trade loss for an accounting period as it applies in relation to any other loss made in a trade for an accounting period.
2
Subsection (1) applies despite the fact that, had there been a BLAGAB trade profit for the accounting period, that profit would not have been charged to tax under section 35 of CTA 2009 and the I - E rules would have been applicable instead.
Carry forward of BLAGAB trade losses against subsequent profits
124
1
This section applies if an insurance company carrying on basic life assurance and general annuity business makes a BLAGAB trade loss for an accounting period.
2
Relief is available under this section for that part of the BLAGAB trade loss (“the unrelieved loss”) for which no relief is given under section 37 of CTA 2010 (as applied by section 123).
3
The relief for the unrelieved loss is to be given as follows.
4
The unrelieved loss is to be carried forward to subsequent accounting periods (so long as the company continues to carry on basic life assurance and general annuity business).
5
For the purposes of —
a
section 93 (minimum profits charge), and
b
section 104 (policyholders’ rate of tax),
the BLAGAB trade profit of any such period is reduced by the unrelieved loss so far as that loss cannot be used under this subsection to reduce the BLAGAB trade profit of an earlier period.
6
Relief under this section is subject to restriction or modification in accordance with section 137(7) of CTA 2010 and other applicable provisions of the Corporation Tax Acts.
Group relief
125
1
Part 5 of CTA 2010 (group relief) is to apply in relation to a BLAGAB trade loss for an accounting period as it applies in relation to any other loss made in a trade for an accounting period.
2
Subsection (1) applies despite the fact that, had there been a BLAGAB trade profit for the accounting period, that profit would not have been charged to tax under section 35 of CTA 2009 and the I - E rules would have been applicable instead.
3
If for an accounting period an insurance company has —
a
an I - E profit, and
b
losses or other amounts within section 99(1)(d) to (g) of CTA 2010,
the company’s gross profits of the accounting period for the purposes of section 105 of that Act (restriction on surrender of those amounts) are not to include the policyholders’ share of the I - E profit (as determined for the purposes of section 102).
Restrictions
Restrictions in respect of non-trading deficit
126
1
The amount of a BLAGAB trade loss for an accounting period of an insurance company that is available for relief under —
a
section 37 of CTA 2010 (as applied by section 123), or
b
Part 5 of CTA 2010 (group relief) (as applied by section 125),
is to be reduced by the amount of any relevant non-trading deficit which the company has for the accounting period.
2
The reference to a relevant non-trading deficit for an accounting period is a reference to the non-trading deficit which the company would have under section 388 of CTA 2009 (loan relationships and derivative contracts) if credits and debits given in respect of the company’s creditor relationships (within the meaning of Part 5 of that Act) were ignored.
No relief against policyholders’ share of I - E profit
127
1
This section applies in the case of an insurance company carrying on basic life assurance and general annuity business.
2
None of the following reliefs are to be given against the policyholders’ share of any I - E profit of the company for any accounting period (as determined for the purposes of section 102).
3
The reliefs in question are —
a
relief under section 37 of CTA 2010 (including as applied by section 123),
b
relief under Chapter 2 or 4 of Part 4 of CTA 2010 (loss relief),
c
relief under Part 5 of CTA 2010 (group relief) (including as applied by section 125),
d
relief in respect of any qualifying charitable donation,
e
relief in respect of any amount representing a non-trading deficit on the company’s loan relationships calculated otherwise than by reference to debits and credits referable, in accordance with Chapter 4, to its basic life assurance and general annuity business.
4
If the company’s basic life assurance and general annuity business is mutual business, subsection (3)(d) does not apply.
CHAPTER 10
Transfers of long-term business
Transfers of BLAGAB
Relief for transferee in respect of transferor’s BLAGAB expenses
128
1
This section applies if, under an insurance business transfer scheme, there is a transfer of basic life assurance and general annuity business (or any part of that business) from one insurance company to another.
2
Acquisition expenses relief is to be given to the transferee for any acquisition expenses for which, on the assumptions set out below, that relief would have been given to the transferor for an accounting period starting after the date of the transfer.
3
“Acquisition expenses relief” means relief given, in accordance with section 79 (spreading of acquisition expenses), at step 3 in section 76.
4
For the transferee’s first accounting period ending after the date of the transfer, acquisition expenses relief for the acquisition expenses within subsection (2) is to be determined as if that period had started with the date after the date of the transfer.
5
Relief at step 5 in section 76 is to be given to the transferee for any excess BLAGAB expenses for which, on the assumptions set out below, that relief would have been given to the transferor for an accounting period starting after the date of the transfer.
6
For the purposes of this section it is to be assumed that —
a
the transferor had continued to carry on the transferred business after the transfer, and
b
the transferor had an accounting date ending with the date of the transfer (if that would not otherwise be the case).
7
If the transfer is a transfer of part of the business, references in this section to any expenses are to be read as references to the appropriate part of the expenses.
8
Any relief given to the transferee as a result of this section is instead of any relief that would otherwise have been given to the transferor.
Intra-group transfers and demutualisation
129
1
This section applies if —
a
under an insurance business transfer scheme, there is a transfer of basic life assurance and general annuity business (or any part of that business) from one insurance company to another, and
b
the transfer is a relevant intra-group transfer or is in connection with a demutualisation.
2
A transfer is a “relevant intra-group transfer” if —
a
the transferor and transferee are members of the same group of companies when the transfer occurs, and
b
the transferee is within the charge to corporation tax in relation to the transfer.
3
A transfer is “in connection with a demutualisation” if —
a
it is for the purposes of the conversion of a company (under the law of any territory) from one without share capital to one with share capital (without any change of legal personality), or
b
it is a transfer by a mutual life insurance company of all, or substantially all, of its basic life assurance and general annuity business to an insurance company which is not a mutual life insurance company,
and for the purposes of paragraph (b) a “mutual life insurance company” means an insurance company which carries on mutual life assurance business.
4
For the purpose of calculating the BLAGAB trade profit or loss of the transferor for any accounting period, any amount in respect of the transfer that is debited or credited in accounts drawn up by the transferor in accordance with generally accepted accounting practice is to be ignored.
5
For the purpose of calculating the BLAGAB trade profit or loss of the transferee for any accounting period, any amount in respect of the transfer that is debited or credited in accounts drawn up by the transferee in accordance with generally accepted accounting practice is to be ignored.
6
But if there is a difference between —
a
the net amount recognised by the transferee in respect of the transfer of contracts of long-term insurance or contracts made in the course of capital redemption business, and
b
the net amount recognised by the transferor in respect of the transfer of those contracts,
the amount of the difference is to be taken into account for the purpose of calculating the BLAGAB trade profit or loss of the transferee for the accounting period in which those contracts are transferred.
7
The difference is to be taken into account —
a
as a receipt (if, when added to the net amount in subsection (6)(b) , the result is the net amount in subsection (6)(a) ), and
b
as an expense (if, when subtracted from the net amount in subsection (6)(b) , the result is the net amount in subsection (6)(a) ).
8
The net amount recognised by an insurance company in respect of the transfer of the contracts is determined by subtracting —
a
the total amount in respect of liabilities relating to the contracts that is or would be recognised for the purposes of a balance sheet drawn up at the relevant time by the company in accordance with generally accepted accounting practice, from
b
the total amount in respect of assets relating to the contracts that is or would be recognised for those purposes,
and “the relevant time” means the time immediately before the transfer (in the case of the transferor) and the time immediately after it (in the case of the transferee).
9
The Treasury may by order amend any of subsections (6) to (8) .
10
This section does not apply to any amount that arises in respect of a transfer so far as the transfer consists of a with-profits fund transfer.
The reference here to a with-profits fund transfer is a reference to —
a
a transfer of business from a with-profits fund to a fund that is not a with-profits fund, or
b
a transfer of business from a fund that is not a with-profits fund to a with-profits fund.
11
If this section applies, the provisions of Part 4 of TIOPA 2010 (transfer pricing) do not apply.
Transfers between non-group companies: present value of in-force business
130
1
This section applies if —
a
under an insurance business transfer scheme, there is a transfer of basic life assurance and general annuity business (or any part of that business) from one insurance company to another,
b
either the transferor and transferee are not members of the same group of companies when the transfer occurs or, if they are, the transfer consists of or includes a with-profits fund transfer within the meaning of section 129 (10) ,
c
the accounts of the transferee drawn up in accordance with generally accepted accounting practice include an asset that represents, as at the time of the transfer, the value of future profits arising from the relevant transferred business, and
d
the asset is not one to which Part 8 of CTA 2009 (intangible fixed assets) applies.
2
Amounts in respect of the asset that are debited or credited in accounts drawn up by the transferee in accordance with generally accepted accounting practice are to be taken into account in calculating the BLAGAB trade profit or loss of the transferee.
3
In subsection (1)(c) “the relevant transferred business” means —
a
if the transferor and transferee are not members of the same group of companies when the transfer occurs, the business (or part of the business) transferred under the insurance business transfer scheme, and
b
if the transfer consists of or includes a with-profits fund transfer, the business transferred by the with-profits fund transfer.
4
For the purposes of subsection (1)(c) no account is to be taken of an asset so far as it is regarded for accounting purposes as internally-generated.
5
This section does not apply so far as section 129 (5) applies in relation to the transfer.
6
Nothing in this section is to apply in relation to transfers taking place before 1 January 2013.
Transfers of non-BLAGAB long-term business
Application of ss. 129 and 130 to transfers of non-BLAGAB long-term business
131
1
This section applies if, under an insurance business transfer scheme, there is a transfer of non-BLAGAB long-term business (or any part of that business) from one insurance company to another.
2
If, for the purposes of section 129, the transfer —
a
is a relevant intra-group transfer, or
b
is in connection with a demutualisation,
section 129 applies for the purpose of calculating for corporation tax purposes the profits of the non-BLAGAB long-term business of the transferor or transferee for any accounting period.
3
If the conditions in section 130 (1)(b) to (d) are met in the case of the transfer, section 130 applies for the purpose of calculating for corporation tax purposes the profits of the non-BLAGAB long-term business of the transferee for any accounting period.
Transfers of long-term business: anti-avoidance
Anti-avoidance
132
1
This section applies if —
a
under an insurance business transfer scheme, there is a transfer on or after 1 January 2013 from one insurance company to another of basic life assurance and general annuity business (or any part of that business) or non-BLAGAB long-term business (or any part of that business), and
b
the main purpose, or one of the main purposes, of a company (“C”) in entering into one or more of the arrangements included in the insurance business transfer arrangements is an unallowable purpose.
2
The “insurance business transfer arrangements” consist of —
a
the insurance business transfer scheme under which the transfer is made, and
b
any arrangement entered into on or after 1 January 2013 with a connection (direct or indirect) to that scheme.
3
A purpose is an “unallowable purpose” if —
a
it consists of securing a tax advantage for C or any other company, or
b
it is not amongst C’s business or other commercial purposes.
4
There are to be made such adjustments of any income or gains chargeable to corporation tax as are required to negate any tax advantage arising to C or any other company so far as referable to the unallowable purpose on a just and reasonable apportionment.
5
For the purposes of this section —
a
“arrangement” includes any agreement, scheme, transaction or understanding (whether or not legally enforceable), and
b
section 1139 of CTA 2010 (meaning of “tax advantage”) applies, but reading references to tax as references to corporation tax.
6
If C is not within the charge to corporation tax in respect of a part of its activities, C’s business or other commercial purposes for the purposes of this section do not include the purposes of that part of its activities.
Clearance procedure
133
1
Section 132 does not apply if, on an application by C, HMRC Commissioners give a notice under this section stating that they are satisfied —
a
that C’s main purpose in entering into the arrangements included in the insurance business transfer arrangements is not an unallowable purpose or none of C’s main purposes in entering into those arrangements is an unallowable purpose, or
b
that the transferor and the transferee are members of the same group of companies when the transfer occurs and that the transfer produces no tax advantage for the group.
2
For this purpose the transfer produces no tax advantage for the group if —
a
as a result of the insurance business transfer arrangements, there is an increase in the liability to corporation tax of one or more companies which are members of the group, and
b
the amount (or total amount) of that increase is at least equal to the amount (or total amount) of the reduction in the liability to corporation tax of the transferor or the transferee that arises as a result of those arrangements.
Section 133: supplementary
134
1
An application under section 133 must —
a
be in writing, and
b
contain particulars of the insurance business transfer arrangements.
2
HMRC Commissioners may by notice require C to provide further particulars in order to enable them to determine the application.
3
A requirement may be imposed under subsection (2) within 30 days of the receipt of the application or of any further particulars required under that subsection.
4
If a notice under that subsection is not complied with within 30 days or such longer period as HMRC Commissioners may allow, they need not proceed further on the application.
5
HMRC Commissioners must give notice to C of their decision on an application under section 133 —
a
within 30 days of receiving the application, or
b
if they give a notice under subsection (2) , within 30 days of that notice being complied with.
6
If any particulars provided under this section do not fully and accurately disclose all facts and considerations material for the decision of HMRC Commissioners, any resulting notice under section 133 is void.
Interpretation
Meaning of “group” of companies
135
For the purposes of this Chapter whether or not at any time companies are members of the same group of companies is to be determined in accordance with section 170(2) to (11) of TCGA 1992.
CHAPTER 11
Definitions
Meaning of “BLAGAB trade profit” and “BLAGAB trade loss”
136
1
In relation to the carrying on by an insurance company of basic life assurance and general annuity business, this section explains for the purposes of this Part what is meant by —
a
the “BLAGAB trade profit” of the company, and
b
the “BLAGAB trade loss” of the company.
2
The company has a “BLAGAB trade profit” for an accounting period if, calculated in accordance with the ordinary trading rules, there are profits of that business for the accounting period that, but for sections 68 and 69, would be chargeable to corporation tax on income under section 35 of CTA 2009 (charge to tax on trade profits).
3
The amount of the BLAGAB trade profit is the amount of those profits that, but for those sections, would be so chargeable.
4
The company has a “BLAGAB trade loss” for an accounting period if, calculated in accordance with the ordinary trading rules, the company makes a loss in that business for the accounting period in a case where, had there been profits, they would, but for those sections, have been so chargeable.
5
The ordinary trading rules have effect for the purpose of calculating the company’s BLAGAB trade profit or loss subject to the provision made by —
a
sections 106 to 108 (policyholder tax),
b
Chapter 6 (trade calculation rules applying to long-term business),
c
Chapter 7 (trading apportionment rules), and
d
sections 129 and 130 (transfers of BLAGAB).
6
For the purposes of this section “the ordinary trading rules” means the rules for calculating the profits of a trade for the purposes of the charge to corporation tax on income under section 35 of CTA 2009.
Meaning of “the long-term business fixed capital”
137
1
This section explains for the purposes of this Part what is meant by an asset forming part of “the long-term business fixed capital” of an insurance company.
2
An asset forms part of “the long-term business fixed capital” of the company if —
a
it is held for the purposes of its long-term business, and
b
it is a structural asset of that business.
3
The reference to a structural asset of a company’s long-term business includes shares, debts and loans which —
a
are held by the company in a fund that is not a with-profits fund, and
b
are of a kind that, if they had been held on 31 December 2012, their value would have been required to be entered in lines 21 to 24 of Form 13 in the periodical return of the company for the period ending immediately before 1 January 2013 (UK insurance dependants and other insurance dependants).
4
For the purposes of subsection (3)(b) “periodical return” has the same meaning as it has in Chapter 1 of Part 12 of ICTA.
5
The Treasury may make regulations providing for assets of a company’s long-term business which are of a description specified in the regulations to be regarded for the purposes of this section as being, or as not being, structural assets of that business.
Meaning of assets that are “matched to” liabilities
138
1
This section —
a
defines for the purposes of this Part what is meant by an asset that is matched to a BLAGAB liability or other long-term business liability and what is meant by the whole or a part of an asset being matched, and
b
explains for those purposes how to work out the part of an asset that is matched to a BLAGAB liability or other long-term business liability.
2
An asset is matched to a BLAGAB liability if, in accordance with the applicable method, some or all of the income or other return arising from that particular asset is specifically referable to the company’s basic life assurance and general annuity business.
3
An asset is matched to another long-term business liability if, in accordance with the applicable method, some or all of the income or other return arising from that particular asset is specifically referable to the company’s non-BLAGAB long-term business.
4
The whole of an asset is matched to a BLAGAB liability if, in accordance with the applicable method, the whole of the income or other return arising from that particular asset is specifically referable to the company’s basic life assurance and general annuity business.
5
A part of an asset is matched to a BLAGAB liability or other long-term business liability if, in accordance with the applicable method, part of the income or other return arising from that particular asset is specifically referable to the company’s basic life assurance and general annuity business or (as the case may be) its non-BLAGAB long-term business.
6
A part of an asset is matched to a BLAGAB liability or other long-term business liability in proportion to the income or other return arising from that particular asset that, in accordance with the applicable method, is specifically referable to the company’s basic life assurance and general annuity business or (as the case may be) its non-BLAGAB long-term business.
7
For the purposes of this section “the applicable method” —
a
in relation to the company’s basic life assurance and general annuity business, means the method adopted for the purposes of section 98 which has effect in relation to the period of account in which the income or other return arises, and
b
in relation to the company’s non-BLAGAB long-term business, means the method adopted for the purposes of section 115 which has effect in relation to the period of account in which the income or other return arises.
8
For the purposes of this section any income or other return arising from an asset is to be regarded as specifically referable to a category of business in accordance with the applicable method in so far as that method is adopted in relation to the income or other return in consequence of a contractual requirement imposed on the company relating to the category of business in question.
Minor definitions
139
1
In this Part —
“closing”, in relation to a period of account, means the position at the end of the period of account,
“derivative contract” has the same meaning as in Part 7 of CTA 2009,
“fair value” —
in relation to money, means its amount, and
in relation to other assets, means the amount which an independent person selling the assets would get,
“HMRC Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs,
“insurance business transfer scheme” means —
a scheme falling within section 105 of FISMA 2000, including an excluded scheme falling within Case 2, 3, 4 or 5 of subsection (3) of that section, or
a scheme which would fall within that subsection but for subsection (1)(b) of that section,
“insurance special purpose vehicle” means an undertaking which —
assumes risks from insurance or re-insurance undertakings, and
fully funds its exposures to those risks through the proceeds of a debt issue or other financing mechanism where the repayment rights of the providers of the mechanism are subordinated to the re-insurance obligations of the undertaking,
“liabilities”, in relation to an insurance company, means —
the mathematical reserves of the company as determined in accordance with section 1.2 of the Insurance Prudential Sourcebook, and
liabilities of the company (whose value falls to be determined in accordance with section 1.3 of the General Prudential Sourcebook) which arise from deposit back arrangements,
“overseas life insurance company” means an insurance company which is not resident in the United Kingdom but which carries on life assurance business in the United Kingdom through a permanent establishment there,
“re-insurance” includes retrocession,
“UK life insurance company” means an insurance company other than an overseas life insurance company,
“with-profits fund” has the meaning given by the Prudential Sourcebook (Insurers).
2
In this Part any reference to the debiting or crediting of an amount in accounts drawn up by an insurance company is a reference to bringing in the amount as a debit or credit in —
a
the company’s profit and loss account, income statement or statement of comprehensive income (or other comprehensive income),
b
a statement of total recognised gains and losses, or
c
any other statement of items used in calculating the company’s income or gains, or its losses or expenses, for accounting purposes,
irrespective of how any account or statement within any of paragraphs (a) to (c) is described or otherwise referred to.
3
For this purpose —
“credit” means an amount which for accounting purposes increases or creates a profit, or reduces a loss, for a period of account, and
“debit” means an amount which for accounting purposes reduces a profit, or increases or creates a loss, for a period of account.
4
In this section —
“deposit back arrangements” means arrangements by which an amount is deposited by the re-insurer under a contract of re-insurance with the cedant,
“the Insurance Prudential Sourcebook” means the Insurance Prudential Sourcebook made by the Financial Services Authority under FISMA 2000,
“the General Prudential Sourcebook” means the General Prudential Sourcebook made by the Financial Services Authority under FISMA 2000, and
“the Prudential Sourcebook (Insurers)” means the Interim Prudential Sourcebook for Insurers made by the Financial Services Authority under FISMA 2000.
Abbreviations
140
1
In this Part —
“FISMA 2000” means the Financial Services and Markets Act 2000, and
“FISMA (Regulated Activities) Order 2001” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.
2
For abbreviations of other Acts, see section 228.
Index of defined terms, etc
141
1
In this Part the following expressions are defined or otherwise explained by the provisions indicated —
Expression Where explained
basic life assurance and general annuity business (abbreviated to “BLAGAB”) sections 57 and 67 (5) BLAGAB trade loss section 136 BLAGAB trade profit section 136 closing section 139 (1) contract of insurance section 64 contract of long-term insurance section 64 debiting or crediting an amount in accounts drawn up by a company section 139 (2) and (3) derivative contract section 139 (1) excess BLAGAB expenses section 73 fair value section 139 (1) HMRC Commissioners section 139 (1) I - E profit section 73 the I - E rules section 70 (1) and (2) insurance business transfer scheme section 139 (1) insurance company section 65 insurance special purpose vehicle section 139 (1) liabilities section 139 (1) life assurance business section 56 long-term business section 63 (1) long-term business fixed capital section 137 matched (in case of assets matched to a BLAGAB liability or other long-term business liability) section 138 non-BLAGAB long-term business sections 66 and 67 non-taxable distributions section 94 (4) and (5) overseas life insurance company section 139 (1) PHI business section 63 (2) re-insurance section 139 (1) UK life insurance company section 139 (1) with-profits fund section 139 (1)
2
The expressions in the above table have the same meaning in any other provision of the Corporation Tax Acts that makes special provision in relation to —
a
insurance companies,
b
any category of life assurance business carried on by insurance companies, or
c
long-term business carried on by insurance companies.
CHAPTER 12
Supplementary
Powers conferred on Treasury or HMRC Commissioners
Power to amend Part 2 etc
142
1
If, in consequence of the exercise of any power under FISMA 2000, they consider it expedient to do so, the Treasury may by order amend —
a
this Part, or
b
any other provision of the Corporation Tax Acts that makes special provision in relation to insurance companies, any category of life assurance business carried on by insurance companies or long-term business carried on by insurance companies.
2
An order under subsection (1) may be made so as to have effect in relation to —
a
any period ending on or before the day on which the order is made, or
b
any period beginning before and ending after that day,
but only if the power under FISMA 2000 is exercised so as to have effect in relation to the period.
3
An order under subsection (1) may —
a
make different provision for different cases or circumstances, and
b
contain incidental, supplementary, consequential, transitional, transitory or saving provision.
Power to amend definition of “insurance business transfer scheme” etc
143
1
If, in consequence of any amendment of section 105 of FISMA 2000 (insurance business transfer schemes), they consider it expedient to do so, the Treasury may by order amend —
a
the definition of “insurance business transfer scheme” given by section 139, or
b
any other provision of the Corporation Tax Acts that makes special provision in relation to insurance companies, any category of life assurance business carried on by insurance companies or long-term business carried on by insurance companies.
2
An order under subsection (1) may be made so as to have effect in relation to —
a
any period ending on or before the day on which the order is made, or
b
any period beginning before and ending after that day,
but only if the amendment of section 105 of FISMA 2000 has effect in relation to that period.
3
An order under subsection (1) may —
a
make different provision for different cases or circumstances, and
b
contain incidental, supplementary, consequential, transitional, transitory or saving provision.
Power to modify provisions applying to overseas life insurance companies
144
1
The Treasury may by regulations provide for the Corporation Tax Acts to have effect in relation to overseas life insurance companies subject to such exceptions and other modifications as may be prescribed by the regulations.
2
The power under subsection (1) includes power to make provision in place of, and in consequence to repeal or revoke, any provision in relation to overseas life insurance companies which is made by or under —
a
this Part, or
b
any other provision of the Corporation Tax Acts.
3
Regulations under subsection (1) may be made so as to have effect in relation to any period ending on or after the day on which the regulations are made.
4
Regulations under subsection (1) may —
a
make different provision for different cases or circumstances, and
b
contain incidental, supplementary, consequential, transitional, transitory or saving provision.
5
The power to make consequential provision conferred by subsection (4)(b) includes power to amend any provision made by or under any Act.
Orders and regulations
145
1
Any power of the Treasury or HMRC Commissioners to make any order or regulations under this Part is exercisable by statutory instrument.
2
Any statutory instrument containing any order or regulations made by the Treasury or HMRC Commissioners under this Part is subject to annulment in pursuance of a resolution of the House of Commons.
3
Nothing in this Part that authorises the inclusion of any particular kind of provision in any order or regulations under this Part is to be read as restricting the generality of the provision that may be included in the order or regulations.
Minor and consequential amendments and transitional provision
Minor and consequential amendments
146
Schedule 16 contains minor and consequential amendments.
Transitional provision
147
Schedule 17 contains transitional provision in connection with the coming into force of this Part.
Commencement etc
Commencement
148
1
The provisions of this Part (other than section 149) have effect in relation to accounting periods of companies beginning on or after 1 January 2013.
2
Subsection (1) is subject to the operation of any provision of Schedule 17 in relation to times before that date.
Accounting periods straddling 1 January 2013
149
1
If, apart from this section, an insurance company would have had an accounting period beginning before 1 January 2013 and ending on or after that date, the accounting period of the company is to end instead on 31 December 2012.
2
Accordingly, the rules in section 10 of CTA 2009 (end of accounting period) are subject to this section.
PART 3
Friendly societies carrying on long-term business
Outline of provisions of Part
Overview
150
1
This Part makes special provision for corporation tax purposes in relation to long-term and other business carried on by friendly societies.
2
Sections 151 and 152 contain provision for applying provisions of the Corporation Tax Acts relating to insurance companies so that they also apply to friendly societies, subject to provision made by regulations.
3
Sections 153 to 163 make provision for, and in connection with, a special exemption from corporation tax for BLAGAB or eligible PHI business.
4
Sections 164 to 169 make provision for, and in connection with, a further exemption from corporation tax for other business.
5
The remainder of the Part contains —
a
provision in relation to certain transfer schemes (see section 170),
b
provision for an exemption from corporation tax for unregistered friendly societies (see section 171), and
c
definitions and other supplementary material (see sections 172 to 179).
Long-term business rules to apply to friendly societies
Friendly societies subject to same basic rules as mutual insurers
151
1
The Corporation Tax Acts apply to —
a
life assurance business carried on by friendly societies, and
b
other long-term business carried on by friendly societies,
in the same way as they apply respectively to mutual life assurance business carried on by insurance companies and other long-term business carried on by insurance companies.
2
Subsection (1) does not apply to business which is exempt BLAGAB or eligible PHI business.
3
The Treasury may by regulations provide that the Corporation Tax Acts as applied by subsection (1) have effect subject to such exceptions or other modifications as may be prescribed by the regulations.
4
The regulations may require any part of any business to be treated as a separate business.
5
The regulations may make provision having retrospective effect.
6
The regulations may —
a
make different provision for different cases or circumstances, and
b
contain incidental, supplementary, consequential, transitional, transitory or saving provision.
Friendly societies subject to transfer of business rules
152
1
In this section “the transfer of business rules” means —
a
Chapter 10 of Part 2, and
b
any other provisions of the Corporation Tax Acts that apply on the transfer from an insurance company to another insurance company of the whole or part of its life assurance business or of its other long-term business.
2
The transfer of business rules apply in the same way —
a
on the transfer of the whole or part of the business of a friendly society to another friendly society,
b
on the amalgamation of friendly societies,
c
on the transfer of the whole or part of the business of a friendly society to a company which is not a friendly society,
d
on the conversion of a friendly society into a company which is not a friendly society, and
e
on the transfer of the whole or part of the business of an insurance company to a friendly society.
3
The Treasury may by regulations provide that the transfer of business rules as applied by subsection (2) have effect subject to such exceptions or other modifications as may be prescribed by the regulations.
4
The regulations may make provision having retrospective effect.
5
The regulations may —
a
make different provision for different cases or circumstances, and
b
contain incidental, supplementary, consequential, transitional, transitory or saving provision.
Exempt BLAGAB or eligible PHI business
Exemption for certain BLAGAB or eligible PHI business
153
1
A friendly society is not liable to pay corporation tax (whether on income or chargeable gains) on its profits arising from exempt BLAGAB or eligible PHI business.
2
The exemption applies only if the society makes a claim.
3
For the meaning of “BLAGAB or eligible PHI business”, see section 154.
4
For the meaning of “exempt” BLAGAB or eligible PHI business, see section 155.
Meaning of “BLAGAB or eligible PHI business”
154
1
In this Part “BLAGAB or eligible PHI business” means —
a
basic life assurance and general annuity business, and
b
any PHI business so far as consisting of the effecting or carrying out of qualifying contracts,
but see subsections (3) and (4) for some qualifications.
2
A contract is a “qualifying” contract if —
a
it is made before 1 September 1996, or
b
it is made on or after that date and it also falls within paragraph I, II or III of Part 2 of Schedule 1 to the FISMA (Regulated Activities) Order 2001.
3
A contract made before 1 September 1996 which effects a policy affording provision for injury, sickness or other infirmity is to be regarded for the purposes of this Part as forming part of “BLAGAB or eligible PHI business” only if —
a
the policy also affords assurance for a gross sum independent of injury, sickness or other infirmity,
b
at least 60% of the total premiums are attributable to the provision afforded during injury, sickness or other infirmity, and
c
there is no bonus or addition which may be declared or accrue upon the assurance of the gross sum.
4
Business is not to be regarded as “BLAGAB or eligible PHI business” of a friendly society for the purposes of this Part so far as it consists of the assurance of any annuity the consideration for which consists of sums obtainable —
a
on the maturity, or
b
on the surrender,
of any other policy of assurance issued by the society which forms part of its exempt BLAGAB or eligible PHI business.
Meaning of “exempt” BLAGAB or eligible PHI business
155
1
In this Part “exempt” BLAGAB or eligible PHI business means BLAGAB or eligible PHI business other than non-qualifying business.
2
Business is “non-qualifying” so far as it consists of —
a
the assurance of gross sums, or the granting of annuities, which meet the conditions set out in the following table (which vary according to the date on which the contracts in question were made), or
b
the effecting or carrying out of contracts for the assurance of gross sums which are made on or after 20 March 1991 and which are expressed at the outset not to be made in the course of exempt BLAGAB or eligible PHI business.
3
This is the table mentioned above —
Contracts to which assurance or annuities relate Applicable limit for premiums or gross sums Applicable limit for annuities
Contracts made on or after 1 May 1995 Assurance of gross sums under contracts under which the total premiums payable in any period of 12 months exceed £270 Granting of annuities of annual amounts exceeding £156 Contracts made on or after 25 July 1991 but before 1 May 1995 Assurance of gross sums under contracts under which the total premiums payable in any period of 12 months exceed £200 Granting of annuities of annual amounts exceeding £156 Contracts made on or after 1 September 1990 but before 25 July 1991 Assurance of gross sums under contracts under which the total premiums payable in any period of 12 months exceed £150 Granting of annuities of annual amounts exceeding £156 Contracts made on or after 1 September 1987 but before 1 September 1990 Assurance of gross sums under contracts under which the total premiums payable in any period of 12 months exceed £100 Granting of annuities of annual amounts exceeding £156 Contracts made on or after 14 March 1984 but before 1 September 1987 Assurance of gross sums exceeding £750 Granting of annuities of annual amounts exceeding £156 Contracts made before 14 March 1984 Assurance of gross sums exceeding £500 Granting of annuities of annual amounts exceeding £104
4
In applying the limits in the above table in relation to the total premiums payable in any period of 12 months (in the case of contracts made on or after 1 September 1987) —
a
if the premiums are payable more frequently than annually, ignore an amount equal to 10% of the premiums, and
b
ignore so much of any premium as is charged on the ground that an exceptional risk of death or disability is involved.
5
In applying the limits in the above table in the case of contracts made on or after 1 September 1987, ignore any bonus or addition declared upon an annuity.
6
In applying the limits in the above table in the case of contracts made before 1 September 1987, ignore any bonus or addition which —
a
is declared upon the assurance of a gross sum or annuity, or
b
accrues upon the assurance of a gross sum or annuity by reference to an increase in the value of any investments.
7
In the case of a contract for the assurance of a gross sum under exempt BLAGAB or eligible PHI business made on or after 1 September 1987 but before 1 May 1995, there is a special rule if the amount payable by way of premium under the contract is increased as a result of a variation made —
a
in the period beginning with 25 July 1991 and ending with 31 July 1992, or
b
in the period beginning with 1 May 1995 and ending with 31 March 1996.
8
The rule is that, in relation to any profits relating to the contract as varied, the contract is to be treated for the purposes of the above table as made at the time of the variation.
Societies with no provision for assuring gross sums exceeding £2,000 etc
156
1
This section applies to a friendly society if its rules make no provision for it to carry on BLAGAB or eligible PHI business, or other long-term business, consisting of —
a
the assurance of gross sums exceeding £2,000, or
b
the granting of annuities of annual amounts exceeding £416.
2
The table in section 155 applies in relation to a friendly society to which this section applies as if, in the final row of that table —
a
the reference to £500 were a reference to £2,000, and
b
the reference to £104 were a reference to £416.
3
If at any time a friendly society to which this section applies amends its rules so as to cease to be such a friendly society, any part of its BLAGAB or eligible PHI business which —
a
relates to contracts made before that time, and
b
immediately before that time was exempt BLAGAB or eligible PHI business,
continues to be exempt BLAGAB or eligible PHI business for the purposes of this Part.
4
If at any time a friendly society to which this section does not apply amends its rules so as to become a friendly society to which this section applies, any part of its BLAGAB or eligible PHI business which —
a
relates to contracts made before that time, and
b
immediately before that time was not exempt BLAGAB or eligible PHI business,
continues not to be exempt BLAGAB or eligible PHI business for the purposes of this Part.
5
If at any time a friendly society to which this section does not apply acquires by way of transfer of engagements or amalgamation from another friendly society any BLAGAB or eligible PHI business which —
a
relates to contracts made before that time, and
b
immediately before that time was exempt BLAGAB or eligible PHI business,
that business continues to be exempt BLAGAB or eligible PHI business for the purposes of this Part.
6
If at any time a friendly society to which this section applies acquires by way of transfer of engagements or amalgamation from another friendly society any BLAGAB or eligible PHI business which —
a
relates to contracts made before that time, and
b
immediately before that time was not exempt BLAGAB or eligible PHI business,
that business continues not to be exempt BLAGAB or eligible PHI business for the purposes of this Part.
Transfers to friendly societies
157
1
If at any time an insurance business transfer scheme transfers any long-term business to a friendly society, any BLAGAB or eligible PHI business which relates to contracts included in the transfer is subsequently not to be capable of being exempt BLAGAB or eligible PHI business for the purposes of this Part.
2
This rule does not apply in relation to business relating to contracts to which section 158 applied immediately before the transfer had effect.
Transfers from friendly societies to insurance companies etc
158
1
If at any time an insurance company acquires by way of transfer of engagements from a friendly society any BLAGAB or eligible PHI business which —
a
relates to contracts made before that time, and
b
immediately before that time was exempt BLAGAB or eligible PHI business,
that business continues to be exempt from corporation tax (whether on income or chargeable gains) on profits arising from it.
2
If at any time a friendly society ceases as a result of section 91 of FSA 1992 (conversion into company) to be registered under that Act, any part of its BLAGAB or eligible PHI business which —
a
relates to contracts made before that time, and
b
immediately before that time was exempt BLAGAB or eligible PHI business,
continues to be exempt from corporation tax (whether on income or chargeable gains) on profits arising from it.
3
If contracts constituting or forming part of the business of a company covered by this section are varied during an accounting period of the company so as to increase the premiums payable under them, the business relating to those contracts is not exempt from corporation tax for that or any subsequent accounting period.
4
For the purposes of the Corporation Tax Acts any part of a company’s business which is exempt from corporation tax as a result of this section is to be treated as a separate business from any other business carried on by the company.
5
The Treasury may by regulations provide that, where any part of the business of a company is exempt from corporation tax as a result of this section, the Corporation Tax Acts have effect subject to such exceptions or other modifications as they consider appropriate.
6
The regulations may make provision having retrospective effect.
7
The regulations may —
a
make different provision for different cases or circumstances, and
b
contain incidental, supplementary, consequential, transitional, transitory or saving provision.
Exception in case of breach of maximum benefits payable to members
159
1
The exemption from corporation tax afforded by section 153, 156 (3) or (5) or 158 does not apply in relation to so much of the profits arising to a friendly society or insurance company from any business as is attributable to a policy which —
a
is not a qualifying policy as a result of sub-paragraph (2) of paragraph 6 of Schedule 15 to ICTA and is not an excluded policy, and
b
would not be a qualifying policy as a result of that sub-paragraph if all excluded policies were ignored.
2
A policy is an excluded policy if —
a
it is held otherwise than with the friendly society or insurance company, or
b
the person who has the contract effecting the policy acquired the rights under it on an assignment otherwise than for money or money’s worth.
3
This section does not withdraw the exemption from corporation tax afforded by section 153, 156 (3) or (5) or 158 in relation to profits arising from any part of a business relating to contracts made on or before 3 May 1966.
Exempt BLAGAB or eligible PHI business: benefits payable by friendly societies etc
Maximum benefits payable to members
160
1
This section imposes restrictions on the entitlement of a person to have at any time outstanding contracts with any one or more friendly societies, registered branches or insurance companies (“relevant persons”) which are —
a
for the assurance of gross sums under business which is afforded exemption from corporation tax under section 153, 156 (3) or (5) or 158 (see subsections (2) and (3) ), or
b
for the assurance by way of annuity under business which is afforded exemption from corporation tax under any of those provisions (see subsection (4) ).
2
In the case of contracts for the assurance of gross sums made before 1 September 1987, a person is not entitled to have outstanding at any time with relevant persons contracts which, taking them all together, are for the assurance of more than £750 (but see subsection (9) ).
3
In the case of contracts for the assurance of gross sums at least one of which was made on or after that date, a person is not entitled to have outstanding at any time with relevant persons —
a
contracts under which the total premiums payable in any period of 12 months exceed £270,
b
contracts made before 1 May 1995 under which the total premiums payable in any period of 12 months exceed £200,
c
contracts made before 25 July 1991 under which the total premiums payable in any period of 12 months exceed £150, or
d
contracts made before 1 September 1990 under which the total premiums payable in any period of 12 months exceed £100.
4
In the case of contracts for the assurance by way of annuity, a person is not entitled to have at any time outstanding with relevant persons contracts which, taking them all together, are for the assurance of more than £156 (but see subsection (9) ).
5
In applying the limits in this section in relation to the total premiums payable in any period of 12 months —
a
if the premiums are payable more frequently than annually, ignore an amount equal to 10% of the premiums, and
b
ignore so much of any premium as is charged on the ground that an exceptional risk of death or disability is involved.
6
In applying the limits in this section, ignore —
a
any bonus or addition which is declared upon an assurance of a gross sum or annuity or which accrues upon an assurance of a gross sum or annuity by reference to an increase in the value of any investments,
b
any policy of insurance or annuity contract by means of which the benefits to be provided under an occupational pension scheme (within the meaning of section 150(5) of FA 2004) are secured,
c
any annuity contract which constitutes, or is issued or held in connection with, a registered pension scheme other than one within paragraph (b) , and
d
any increase in a benefit under a friendly society contract (within the meaning given by section 6 of the Decimal Currency Act 1969) resulting from the adoption of a scheme prescribed or approved under subsection (3) of that section.
7
In the case of a contract for the assurance of a gross sum made on or after 1 September 1987 but before 1 May 1995, there is a special rule if the amount payable by way of premium under the contract is increased as a result of a variation made —
a
in the period beginning with 25 July 1991 and ending with 31 July 1992, or
b
in the period beginning with 1 May 1995 and ending with 31 March 1996.
8
The rule is that, in relation to times when the contract has effect as varied, the contract is to be treated for the purposes of this section as made at the time of variation.
9
If a person’s outstanding contracts with relevant persons were contracts which were all made before 14 March 1984 —
a
subsection (2) has effect as if the reference to £750 were a reference to £2,000, and
b
subsection (4) has effect as if the reference to £156 were a reference to £416.
Section 160: supplementary
161
1
This section makes further provision for the purposes of section 160 the application of which depends on whether or not a friendly society is an old society.
2
For the purposes of this Part an “old society” means —
a
a registered friendly society which was registered before 4 February 1966,
b
a registered friendly society which was registered in the period beginning with that date and ending with 3 May 1966 and which on or before 3 May 1966 carried on any life or endowment business (within the meaning of section 29 of FA 1966), or
c
an incorporated friendly society which, before its incorporation, was a registered friendly society within paragraph (a) or (b) .
3
In applying the limits in section 160 (3) in relation to the total premiums payable in any period of 12 months, ignore £10 of the premiums payable under any contract made before 1 September 1987 by an old society.
4
In applying the limits in section 160 (3) , the premiums under any contract for an annuity which was made before 1 June 1984 by a friendly society other than an old society are to be dealt with as if the contract were for the assurance of a gross sum.
5
In applying the limits in section 160 in any case where a person has outstanding with relevant persons one or more contracts made after 13 March 1984 and one or more contracts made on or before that date, any contract for an annuity which was made before 1 June 1984 by a friendly society other than an old society is to be regarded —
a
as a contract for the annual amount concerned, and
b
as a contract for the assurance of a gross sum equal to 75% of the total premiums which would be payable under the contract if it were to run for its full term or, as the case may be, if the member concerned were to die at the age of 75.
Section 160: statutory declarations
162
A friendly society, registered branch or insurance company may require a person to make and sign a statutory declaration —
a
that the total amount assured under outstanding contracts entered into by that person with any one or more friendly societies, registered branches or insurance companies (taken together) does not exceed the limits set out in section 160, and
b
that the total premiums under those contracts do not exceed those limits.
Exempt BLAGAB or eligible PHI business: directions to old societies
Directions given to old societies
163
1
HMRC Commissioners may give a direction under this section to an old society.
2
The Commissioners may give the direction if —
a
the society begins to carry on exempt BLAGAB or eligible PHI business or, in their opinion, begins to carry on exempt BLAGAB or eligible PHI business on an enlarged scale or of a new character, and
b
it appears to them, having regard to the restrictions placed on qualifying policies issued by friendly societies other than old societies by paragraphs 3(1)(b) and 4(3)(b) of Schedule 15 to ICTA, that for the protection of the revenue it is expedient to give the direction.
3
The direction is that (and has the effect that) the society is to be treated for the purposes of this Part and Schedule 15 to ICTA as a friendly society other than an old society with respect to business carried on after the date of the direction.
4
The society may appeal against the direction on the ground that —
a
it has not begun to carry on business as mentioned in subsection (2)(a) , or
b
the direction is not necessary for the protection of the revenue.
5
The appeal must be made within 30 days of the date on which the direction is given.
6
If a registered friendly society in respect of which a direction is in force under this section becomes an incorporated friendly society, the direction continues to have effect, so that for the purposes of this Part and Schedule 15 to ICTA it is treated as a friendly society other than an old society.
Exemption for other business
Societies registered before 1 June 1973, etc
164
1
A registered friendly society which is a qualifying society is not liable to pay corporation tax (whether on income or chargeable gains) on its profits other than those arising from —
a
life assurance business, or
b
PHI business comprised in BLAGAB or eligible PHI business.
2
A registered friendly society is a qualifying society if —
a
it was registered before 1 June 1973 (but see section 168 for circumstances in which it ceases to be a qualifying society),
b
it is registered on or after that date and its business is limited to the provision, in accordance with its rules, of benefits for or in respect of employees of a particular employer or such other group of persons as is for the time being approved for the purposes of this section by HMRC Commissioners, or
c
it is registered on or after that date but before 27 March 1974 and its rules limit the total amount which may be paid by a member by way of contributions and deposits to not more than £1 per month or such greater amount as HMRC Commissioners may authorise for the purposes of this section.
3
For the purposes of this section a registered friendly society formed on the amalgamation of two or more friendly societies is treated as registered before 1 June 1973 if, at the time of amalgamation, each of the societies amalgamated was a qualifying society (but otherwise is treated as registered at that time).
4
The exemption applies only if the society makes a claim.
Incorporated friendly societies
165
1
An incorporated friendly society which is a qualifying society is not liable to pay corporation tax (whether on income or chargeable gains) on its profits other than those arising from —
a
life assurance business, or
b
PHI business comprised in BLAGAB or eligible PHI business.
2
An incorporated friendly society is a qualifying society if it falls within any of cases A to C (but see section 168 for circumstances in which it ceases to be a qualifying society).
3
Case A is that, immediately before its incorporation, it was a registered friendly society which was a qualifying society within the meaning of section 164.
4
Case B is that —
a
it was formed otherwise than by the incorporation of a registered friendly society or the amalgamation of two or more friendly societies, and
b
its business is limited to the provision, in accordance with its rules, of benefits for or in respect of employees of a particular employer or such other group of persons as is for the time being approved for the purposes of this section by HMRC Commissioners.
5
Case C is that —
a
it was formed by the amalgamation of two or more friendly societies, and
b
at the time of the amalgamation each of the societies being amalgamated was a qualifying society within the meaning of section 164 or this section.
6
The exemption applies only if the society makes a claim.
7
The exemption does not apply to any profits arising or accruing to the society from, or by reason of its interest in, a body corporate —
a
which is a subsidiary of the society (within the meaning of FSA 1992), or
b
of which the society has joint control (within the meaning of FSA 1992).
Transfers from friendly societies to insurance companies etc
166
1
For the purposes of this Part “relevant other business” means any business other than —
a
life assurance business, or
b
PHI business comprised in BLAGAB or eligible PHI business.
2
If —
a
at any time an insurance company acquires by way of transfer of engagements from a friendly society any relevant other business, and
b
immediately before that time the society was exempt from corporation tax on profits arising from that business as a result of section 164 or 165,
the insurance company is exempt from corporation tax on its profits arising from the relevant other business so far as relating to contracts made before that time.
3
If a friendly society —
a
at any time ceases as a result of section 91 of FSA 1992 (conversion into company) to be registered under that Act, and
b
immediately before that time the society was, as a result of section 164 or 165, exempt from corporation tax on profits arising from any relevant other business carried on by it,
the company into which the society is converted is exempt from corporation tax on its profits arising from the relevant other business so far as relating to contracts made before that time.
4
If during an accounting period of a company there is an increase in the scale of benefits which it undertakes to provide in the course of carrying on relevant other business relating to contracts made before the time of transfer or conversion, the company is not exempt from corporation tax as a result of this section for that or any subsequent accounting period.
5
For the purposes of the Corporation Tax Acts any part of a company’s business which is exempt from corporation tax as a result of this section is to be treated as a separate business from any other business carried on by the company.
6
The Treasury may by regulations provide that, where any part of the business of a company is exempt from corporation tax as a result of this section, the Corporation Tax Acts have effect subject to such exceptions or other modifications as they consider appropriate.
7
The regulations may make provision having retrospective effect.
8
The regulations may —
a
make different provision for different cases or circumstances, and
b
contain incidental, supplementary, consequential, transitional, transitory or saving provision.
Transfers between friendly societies
167
1
If —
a
at any time a friendly society acquires by way of transfer of engagements or amalgamation from another friendly society any relevant other business, and
b
immediately before that time the transferor was exempt from corporation tax on profits arising from that business as a result of section 164 or 165,
the transferee is exempt from corporation tax on its profits arising from the relevant other business so far as relating to contracts made before that time.
2
If during an accounting period of the transferee there is an increase in the scale of benefits which it undertakes to provide in the course of carrying on relevant other business relating to contracts made before that time, the transferee is not exempt from corporation tax as a result of this section for that or any subsequent accounting period.
3
If —
a
at any time a friendly society acquires by way of transfer of engagements or amalgamation from another friendly society any relevant other business, and
b
immediately before that time the transferor was not exempt from corporation tax on profits arising from that business as a result of section 164 or 165,
the transferee is not exempt from corporation tax on its profits arising from the relevant other business so far as relating to contracts made before that time.
4
The Treasury may by regulations provide that, where any part of the business of a friendly society is, or is not, exempt from corporation tax as a result of this section, the Corporation Tax Acts have effect subject to such exceptions or other modifications as they consider appropriate.
5
The regulations may make provision having retrospective effect.
6
The regulations may —
a
make different provision for different cases or circumstances, and
b
contain incidental, supplementary, consequential, transitional, transitory or saving provision.
7
Nothing in this section applies in relation to transfers or amalgamations taking place before 21 July 2008.
Withdrawal of qualifying status
168
1
HMRC Commissioners may give a direction under this section to —
a
a registered friendly society which is a qualifying society for the purposes of section 164 as a result of its registration before 1 June 1973, or
b
an incorporated friendly society which is a qualifying society for the purposes of section 165 as a result of falling within case A or C and whose business and rules are not of a kind mentioned in section 164 (2)(b) or (c) .
2
The Commissioners may give the direction if —
a
the society begins to carry on relevant other business or, in their opinion, begins to carry on relevant other business on an enlarged scale or of a new character, and
b
it appears to them, having regard to the restrictions imposed by section 164 on registered friendly societies registered on or after 1 June 1973, that for the protection of the revenue it is expedient to give the direction.
3
The direction is that (and has the effect that) the society ceases to be a qualifying society as from the date of the direction.
4
The society may appeal against the direction on the ground that —
a
it has not begun to carry on business as mentioned in subsection (2)(a) , or
b
the direction is not necessary for the protection of the revenue.
5
The appeal must be made within 30 days of the date on which the direction is given.
Payments by non-qualifying societies treated as qualifying distributions
169
1
This section applies if —
a
a friendly society which is not a qualifying society makes a payment to a member in respect of the member’s interest in the society,
b
the payment is made in the course of relevant other business, and
c
the payment exceeds the total amount of any sums paid by the member to the society by way of contributions or deposits after deducting from that total any relevant previous payment and any relevant earlier repayment.
2
The excess is treated for the purposes of corporation tax and income tax as a qualifying distribution.
3
In this section —
a
the reference to a relevant previous payment is to the amount of any previous payment made by the society to the member in respect of the member’s interest in the society, and
b
the reference to a relevant earlier repayment is to the amount of any earlier repayment of sums paid by the member to the society by way of contributions or deposits.
4
In the case of an incorporated friendly society which, immediately before its incorporation, was a registered friendly society which was not a qualifying society —
a
references in this section to payments (or repayments) to or from the society include payments (or repayments) to or from the registered friendly society, but
b
subsection (3)(a) does not apply to a payment made before 27 March 1974 or, if the registered friendly society was previously a qualifying society but ceased to be one as a result of a direction given to it under section 168 (1)(a) , a payment made on or before such later date as was specified in the direction.
5
In the case of any other incorporated friendly society which was previously a qualifying society but ceased to be one as a result of a direction given to it under section 168 (1)(b) , subsection (3)(a) does not apply to a payment made on or before the date specified in the direction.
6
In the case of a registered friendly society, subsection (3)(a) does not apply to —
a
a payment made before 27 March 1974, or
b
if the society was previously a qualifying society but ceased to be one as a result of a direction given to it under section 168 (1)(a) , a payment made on or before such later date as was specified in the direction.
7
For the purposes of this section —
a
a registered friendly society is not a qualifying society at any time if, at that time, it is not a qualifying society within the meaning of section 164, and
b
an incorporated friendly society is not a qualifying society at any time if, at that time, it is not a qualifying society within the meaning of section 165.
Miscellaneous
Transfer schemes under s.6(5) of FSA 1992
170
1
This section applies if assets of a branch of a registered friendly society have been identified in a scheme under section 6(5) of FSA 1992 (property, rights etc excluded from transfer to the society on its incorporation).
2
In relation to any time after the incorporation of the society, the assets are to be treated for the purposes of the Tax Acts as assets of the society (and, accordingly, any corporation tax or income tax liability arising in respect of them is a liability of the society rather than of the branch).
3
If, as a result of this section, corporation tax or income tax in respect of any of the assets becomes chargeable on and is paid by the society, the society may recover from the trustees in whom those assets are vested the amount of the tax paid.
Exemption for unregistered friendly societies
171
1
A friendly society which is neither a registered friendly society nor an incorporated friendly society is not liable to pay corporation tax (whether on income or chargeable gains) on its profits if its income does not exceed £160 a year.
2
The exemption applies only if the society makes a claim.
Interpretation
Minor definitions
172
1
In this Part —
“friendly society”, without qualification, means (except in section 171) a registered friendly society or an incorporated friendly society,
“incorporated friendly society” means a society incorporated under FSA 1992,
“policy”, in relation to BLAGAB or eligible PHI business, includes an instrument evidencing a contract to pay an annuity upon human life,
“registered branch” has the same meaning as in FSA 1992 (and includes any branch that as a result of section 96(3) of FSA 1992 is treated as a registered branch), and
“registered friendly society” has the same meaning as in FSA 1992 (and includes any society that as a result of section 96(2) of FSA 1992 is treated as a registered friendly society).
2
Any other expression which is used in this Part and in Part 2 has the same meaning in this Part as in that Part.
3
References in this Part to a friendly society include, in the case of a registered friendly society, references to any branch of that society.
4
It is declared that for the purposes of this Part (except where provision to the contrary is made) a friendly society formed on the amalgamation of two or more friendly societies is treated as different from the amalgamated societies.
5
A registered friendly society formed on the amalgamation of two or more friendly societies is treated for the purposes of this Part as registered not later than 3 May 1966 if at the time of the amalgamation —
a
all the societies amalgamated were registered friendly societies eligible for the exemption conferred by section 153, and
b
at least one of them was an old society,
or, if the amalgamation took place before 19 March 1985, the society was treated as registered not later than 3 May 1966 as a result of the proviso to section 337(4) of the Income and Corporation Taxes Act 1970.
6
An incorporated friendly society formed on the amalgamation of two or more friendly societies is treated for the purposes of this Part as a society which, before its incorporation, was a registered friendly society registered not later than 3 May 1966 if at the time of the amalgamation —
a
all the societies amalgamated were registered friendly societies eligible for the exemption conferred by section 153, and
b
at least one of them was an old society.
Abbreviations
173
1
In this Part —
“FSA 1992” means the Friendly Societies Act 1992, and
“FISMA (Regulated Activities) Order 2001” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.
2
For abbreviations of other Acts, see section 228.
Index of defined terms
174
In this Part the following expressions are defined or otherwise explained by the provisions indicated —
Expression Where explained
basic life assurance and general annuity business (abbreviated to “BLAGAB”) sections 57, 67 (5) and 172 (2) BLAGAB or eligible PHI business section 154 contract of insurance sections 64 and 172 (2) exempt BLAGAB or eligible PHI business section 155 friendly society section 172 (1) HMRC Commissioners sections 139 (1) and 172 (2) incorporated friendly society section 172 (1) insurance business transfer scheme sections 139 (1) and 172 (2) insurance company sections 65 and 172 (2) life assurance business sections 56 and 172 (2) long-term business sections 63(1) and 172 (2) old society section 161 (2) PHI business sections 63 (2) and 172 (2) policy section 172 (1) registered section 172 (5) and (6) registered branch section 172 (1) registered friendly society section 172 (1) and (3) relevant other business section 166 re-insurance sections 139 (1) and 172 (2)
Regulations
Regulations
175
1
Any power of the Treasury to make any regulations under this Part is exercisable by statutory instrument.
2
Any statutory instrument containing any regulations made by the Treasury under this Part is subject to annulment in pursuance of a resolution of the House of Commons.
3
Nothing in this Part that authorises the inclusion of any particular kind of provision in any regulations under this Part is to be read as restricting the generality of the provision that may be included in the regulations.
Consequential amendments and transitional provision
Consequential amendments
176
Schedule 18 contains consequential amendments.
Transitional provision
177
Schedule 19 contains transitional provision in connection with the coming into force of this Part.
Commencement etc
Commencement
178
The provisions of this Part (other than section 179) have effect in relation to accounting periods of companies beginning on or after 1 January 2013.
Accounting periods straddling 1 January 2013
179
1
If, apart from this section, a friendly society would have had an accounting period beginning before 1 January 2013 and ending on or after that date, the accounting period of the society is to end instead on 31 December 2012.
2
Accordingly, the rules in section 10 of CTA 2009 (end of accounting period) are subject to this section.
PART 4
Controlled foreign companies and foreign permanent establishments
Controlled foreign companies and foreign permanent establishments
180
Schedule 20 makes —
a
provision for and in connection with a charge on UK resident companies which have interests in non-UK resident companies controlled by UK resident persons, and
b
provision about foreign permanent establishments of UK resident companies.
PART 5
Oil
Transfers within a group by companies carrying on ring fence trade
181
1
Section 171A of TCGA 1992 (election to reallocate gain or loss to another member of group) is amended as follows.
2
In subsection (4), at the end insert “(but see subsection (4A))”.
3
After subsection (4) insert —
4A
An election may not be made under this section to transfer the whole or part of a ring fence chargeable gain from a company carrying on a ring fence trade to a company not carrying on such a trade.
4B
In subsection (4A) —
“ring fence chargeable gain”, in relation to a company, means —
a chargeable gain accruing to the company on a material disposal within the meaning of section 197 (disposals of interests in oil fields etc: ring fence provisions), or
a chargeable gain treated as accruing to the company by virtue of section 197(4);
“ring fence trade” has the same meaning as in Part 8 of CTA 2010 (see section 277 of that Act).
4
The amendments made by this section have effect in relation to chargeable gains accruing, or treated by virtue of section 197(4) of TCGA 1992 as accruing, in chargeable periods ending on or after 6 December 2011 (but see also subsection (5)).
5
In relation to a chargeable period of a company beginning before 6 December 2011 and ending on or after that date (“the straddling period”), the amendments made by this section have effect as if, for the purposes of section 197 of TCGA 1992, so much of the straddling period as falls before 6 December 2011, and so much of that period as falls on or after that date, were separate chargeable periods.
Supplementary charge
182
1
In section 330 of CTA 2010 (supplementary charge in respect of ring fence trades), in subsection (2), for “profits of the company’s ring fence trade” substitute “company’s ring fence profits”.
2
This section is treated as having come into force on 6 December 2011.
Relief in respect of decommissioning expenditure
183
Schedule 21 contains provision about the relief available in respect of decommissioning expenditure.
Reduction of supplementary charge for certain oil fields
184
Schedule 22 contains provision extending the availability of field allowances for oil fields.
PART 6
Excise duties
Tobacco products duty
Rates of tobacco products duty
185
1
For the table in Schedule 1 to TPDA 1979 substitute —
TABLE
1. Cigarettes An amount equal to 16.5 per cent of the retail price plus £167.41 per thousand cigarettes 2. Cigars £208.83 per kilogram 3. Hand-rolling tobacco £164.11 per kilogram 4. Other smoking tobacco and chewing tobacco £91.81 per kilogram
.
2
The amendment made by this section is treated as having come into force at 6 pm on 21 March 2012.
Alcoholic liquor duties
Rates of alcoholic liquor duties
186
1
ALDA 1979 is amended as follows.
2
In section 5 (rate of duty on spirits), for “£25.52” substitute “£26.81”.
3
In section 36(1AA) (rates of general beer duty) —
a
in paragraph (za) (rate of duty on lower strength beer), for “£9.29” substitute “£9.76”, and
b
in paragraph (a) (standard rate of duty on beer), for “£18.57” substitute “£19.51”.
4
In section 37(4) (rate of high strength beer duty), for “£4.64” substitute “£4.88”.
5
In section 62(1A) (rates of duty on cider) —
a
in paragraph (a) (rate of duty per hectolitre on sparkling cider of a strength exceeding 5.5 per cent), for “£233.55” substitute “£245.32”,
b
in paragraph (b) (rate of duty per hectolitre on cider of a strength exceeding 7.5 per cent which is not sparkling cider), for “£53.84” substitute “£56.55”, and
c
in paragraph (c) (rate of duty per hectolitre in any other case), for “£35.87” substitute “£37.68”.
6
For the table in Schedule 1 substitute —
Table of rates of duty on wine and made-wine
PART 1
Wine or made-wine of a strength not exceeding 22 per cent
Description of wine or made-wine Rates of duty per hectolitre £
Wine or made-wine of a strength not exceeding 4 per cent 78.07 Wine or made-wine of a strength exceeding 4 per cent but not exceeding 5.5 per cent 107.36 Wine or made-wine of a strength exceeding 5.5 per cent but not exceeding 15 per cent and not being sparkling 253.39 Sparkling wine or sparkling made-wine of a strength exceeding 5.5 per cent but less than 8.5 per cent 245.32 Sparkling wine or sparkling made-wine of a strength of 8.5 per cent or of a strength exceeding 8.5 per cent but not exceeding 15 per cent 324.56 Wine or made-wine of a strength exceeding 15 per cent but not exceeding 22 per cent 337.82
PART 2
Wine or made-wine of a strength exceeding 22 per cent
Description of wine or made-wine Rates of duty per litre of alcohol in wine or made-wine £
Wine or made-wine of a strength exceeding 22 per cent 26.81
.
7
The amendments made by this section are treated as having come into force on 26 March 2012.
Repeal of drawback on British compounds and spirits of wine
187
1
Section 22 of ALDA 1979 (drawback on British compounds and spirits of wine) is repealed.
2
In consequence of the provision made by subsection (1), omit the following provisions —
a
in Schedule 1 to the Isle of Man Act 1979, paragraph 29;
b
in Schedule 8 to FA 1981, paragraph 16;
c
in Schedule 4 to FA 1994, paragraph 24;
d
in Schedule 5 to that Act, paragraph 3(1)(ha);
e
in Schedule 42 to FA 2008, paragraph 2(2).
Hydrocarbon oil etc duties
Rates of duty and rebates from 1 August 2012 to 31 December 2012
188
In relation to products charged with duty under HODA 1979 on or after 1 August 2012 but before 1 January 2013, that Act has effect as if the amendments made by section 20 of FA 2011 had never been made.
Rebated fuel: private pleasure craft
189
1
In section 14E of HODA 1979 (rebated heavy oil and bioblend: private pleasure craft), after subsection (7) insert —
7A
A relevant declaration must include an acknowledgement that nothing in this section or done under it (including the making of the declaration) affects any restriction or prohibition under the law of a member State other than the United Kingdom on the use of the heavy oil or bioblend as fuel for propelling craft outside United Kingdom waters (as defined in section 1(1) of the Management Act).
2
The amendment made by this section has effect in relation to supplies made on or after 1 April 2012.
Air passenger duty
Air passenger duty
190
Schedule 23 amends, and makes amendments connected with, Chapter 4 of Part 1 of FA 1994 (air passenger duty).
Gambling duties
Machine games duty
191
Schedule 24 contains provision replacing amusement machine licence duty with a new excise duty and making related changes to VATA 1994.
Amusement machine licence duty
192
1
In section 23(2) of BGDA 1981 (amount of duty payable on amusement machine licence), for the table substitute —
TABLE
Months for which licence granted Category A Category B1 Category B2 Category B3 Category B4 Category C £ £ £ £ £ £
1 555 280 220 220 200 85 2 1105 555 435 435 395 165 3 1655 830 655 655 595 250 4 2205 1105 870 870 790 330 5 2755 1380 1085 1085 985 410 6 3305 1655 1305 1305 1185 495 7 3860 1930 1520 1520 1380 575 8 4410 2205 1740 1740 1575 655 9 4960 2485 1955 1955 1775 740 10 5510 2760 2170 2170 1970 820 11 6060 3035 2390 2390 2170 900 12 6295 3150 2480 2480 2250 935
.
2
The amendment made by this section has effect in relation to cases where the application for the amusement machine licence is received by the Commissioners for Her Majesty’s Revenue and Customs after 4 pm on 23 March 2012.
Rates of gaming duty
193
1
In section 11(2) of FA 1997 (rates of gaming duty), for the table substitute —
TABLE
Part of gross gaming yield Rate
The first £2,175,000 15 per cent The next £1,499,500 20 per cent The next £2,626,000 30 per cent The next £5,542,500 40 per cent The remainder 50 per cent
.
2
The amendment made by this section has effect in relation to accounting periods beginning on or after 1 April 2012.
Remote gambling: double taxation relief
194
Schedule 25 contains provision for double taxation relief in respect of remote gambling.
Vehicle excise duty
VED rates for light passenger vehicles, light goods vehicles, motorcycles etc
195
1
Schedule 1 to VERA 1994 (annual rates of duty) is amended as follows.
2
In paragraph 1 (general) —
a
in sub-paragraph (2) (vehicle not covered elsewhere in Schedule otherwise than with engine cylinder capacity not exceeding 1,549cc), for “£215” substitute “£220”, and
b
in sub-paragraph (2A) (vehicle not covered elsewhere in Schedule with engine cylinder capacity not exceeding 1,549cc), for “£130” substitute “£135”.
3
In paragraph 1B (graduated rates of duty for light passenger vehicles) —
a
for the tables substitute —
Table 1
Rates payable on first vehicle licence for vehicle
CO 2 emissions figure Rate (1) (2) (3) (4) Exceeding Not exceeding Reduced rate Standard rate g/km g/km £ £
130 140 110 120 140 150 125 135 150 165 160 170 165 175 265 275 175 185 315 325 185 200 450 460 200 225 590 600 225 255 805 815 255 — 1020 1030
Table 2
Rates payable on any other vehicle licence for vehicle
CO 2 emissions figure Rate (1) (2) (3) (4) Exceeding Not exceeding Reduced rate Standard rate g/km g/km £ £
100 110 10 20 110 120 20 30 120 130 90 100 130 140 110 120 140 150 125 135 150 165 160 170 165 175 185 195 175 185 205 215 185 200 240 250 200 225 260 270 225 255 450 460 255 — 465 475
;
b
in the sentence immediately following the tables, for paragraphs (a) and (b) substitute —
a
in column (3), in the last two rows, “260” were substituted for “450” and “465”, and
b
in column (4), in the last two rows, “270” were substituted for “460” and “475”.
4
In paragraph 1J (VED rates for light goods vehicles) —
a
in paragraph (a), for “£210” substitute “£215”, and
b
in paragraph (b), for “£130” substitute “£135”.
5
In paragraph 2(1) (VED rates for motorcycles) —
a
in paragraph (b), for “£35” substitute “£36”,
b
in paragraph (c), for “£53” substitute “£55”, and
c
in paragraph (d), for “£74” substitute “£76”.
6
The amendments made by this section have effect in relation to licences taken out on or after 1 April 2012.
PART 7
Value added tax
Changes to the categorisation of supplies
196
1
Schedule 26 contains provision about the categorisation of supplies for the purposes of value added tax.
2
Schedule 27 contains provision for an anti-forestalling charge to value added tax related to changes in the descriptions of exempt or zero-rated supplies.
Exempt supplies
197
1
In Part 1 of Schedule 9 to VATA 1994 (index to exempt supplies of goods and services), at the appropriate place in the table insert —
Supplies of services by groups involving cost sharing Group 16
.
2
In Part 2 of that Schedule (the groups), at the end insert —
GROUP 16 — SUPPLIES OF SERVICES BY GROUPS INVOLVING COST SHARING
Item No
1
The supply of services by an independent group of persons where each of the following conditions is satisfied —
a
each of those persons is a person who is carrying on an activity (“the relevant activity”) which is exempt from VAT or in relation to which the person is not a taxable person within the meaning of Article 9 of Council Directive 2006/112/EC ,
b
the supply of services is made for the purpose of rendering the members of the group the services directly necessary for the exercise of the relevant activity,
c
the group merely claims from its members exact reimbursement of their share of the joint expenses, and
d
the exemption of the supply is not likely to cause distortion of competition.
3
In section 31 of that Act (exempt supplies and acquisitions), after subsection (2) insert —
3
The Treasury may by regulations make an exemption of a group 16 supply of a description specified in the regulations subject to conditions.
4
Regulations under subsection (3) may —
a
make different provision for different cases, and
b
make consequential or transitional provision (including provision amending this Act).
5
In subsection (3) “group 16 supply” means a supply falling within Group 16 of Schedule 9.
Supply of goods or services by public bodies
198
1
VATA 1994 is amended as follows.
2
In section 41 (application to the Crown) —
a
omit subsection (2), and
b
in subsection (3)(b) for “a direction under subsection (2) above,” substitute “section 41A,”.
3
After that section insert —
Supply of goods or services by public bodies
41A
1
This section applies where goods or services are supplied by a body mentioned in Article 13(1) of the VAT Directive (status of public bodies as taxable persons) in the course of activities or transactions in which it is engaged as a public authority.
2
If the supply is in respect of an activity listed in Annex I to the VAT Directive (activities in respect of which public bodies are to be taxable persons), it is to be treated for the purposes of this Act as a supply in the course or furtherance of a business unless it is on such a small scale as to be negligible.
3
If the supply is not in respect of such an activity, it is to be treated for the purposes of this Act as a supply in the course or furtherance of a business if (and only if) not charging VAT on the supply would lead to a significant distortion of competition.
4
In this section “the VAT Directive” means Council Directive 2006/112/EC on the common system of value added tax.
Relief from VAT on low value goods: restriction relating to Channel Islands
199
1
In Schedule 2 to the Value Added Tax (Imported Goods) Relief Order 1984 ( S.I. 1984/746 ) (reliefs for goods of certain descriptions), Group 8 (articles sent for miscellaneous purposes) is amended as follows.
2
The existing Note becomes Note (1) (and accordingly “ Note ” in Group 8 becomes “ Notes ”).
3
After that Note insert —
2
Item 8 does not apply in relation to any goods sent from the Channel Islands under a distance selling arrangement.
3
For the purposes of Note (2) —
“distance selling arrangement”, in relation to any goods, means any transaction, or series of transactions, under which the person to whom the goods are sent receives them from a supplier without the simultaneous physical presence of the person and the supplier at any time during the transaction or series of transactions, and
“supplier” means any person who is acting in a commercial or professional capacity.
4
The amendment of that Schedule by this section is without prejudice to any power to amend that Schedule by subordinate legislation.
5
The amendments made by this section have effect in relation to goods imported on or after 1 April 2012.
Group supplies using an overseas member
200
1
VATA 1994 is amended as follows.
2
In section 43 (groups of companies), in subsection (2C)(c), after “above” insert “and paragraph 8A of Schedule 6”.
3
In section 83 (appeals), in subsection (1)(v) for “or 2” substitute “, 2 or 8A”.
4
In section 97(4) (orders requiring Parliamentary approval within 28 days of being made), in paragraph (f), after “1A(7)” insert “or 8A(7)”.
5
Schedule 6 (valuation: special cases) is amended as follows.
6
In paragraph 1 (cases where Commissioners may direct value is open market value), in sub-paragraph (5), after “paragraph”, in the second place it occurs, insert “8A or”.
7
After paragraph 8 insert —
8A
1
This paragraph applies where —
a
a supply (“the intra-group supply”) made by a member of a group (“the supplier”) to another member of the group is, by virtue of section 43(2A), excluded from the supplies disregarded under section 43(1)(a), and
b
the representative member of the group satisfies the Commissioners as to the value of each bought-in supply.
2
“Bought-in supply”, in relation to the intra-group supply, means a supply of services to the supplier to which section 43(2A)(c) to (e) refers, so far as that supply is used by the supplier for making the intra-group supply.
3
The value of the intra-group supply shall be taken to be the total of the relevant amounts in relation to the bought-in supplies.
4
The relevant amount in relation to a bought-in supply is the value of the bought-in supply, unless a direction is made under sub-paragraph (5).
5
If the value of a bought-in supply is less than its open market value, the Commissioners may direct that the relevant amount in relation to that supply is its open market value.
6
A direction under this paragraph must be given by notice in writing to the representative member, but no direction may be given more than 3 years after the time of the intra-group supply.
7
The Treasury may by order vary the provision made by this Schedule about the value of supplies of the kind mentioned in sub-paragraph (1)(a).
8
An order under sub-paragraph (7) may include incidental, supplemental, consequential or transitional provision (including provision amending section 43 or 83).
8
The amendments made by this section have effect in relation to supplies made on or after the day on which this Act is passed.
Face-value vouchers
201
1
In Schedule 10A to VATA 1994 (face-value vouchers), after paragraph 7 insert —
Exclusion of single purpose vouchers
7A
Paragraphs 2 to 4, 6 and 7 do not apply in relation to the issue, or any subsequent supply, of a face-value voucher that represents a right to receive goods or services of one type which are subject to a single rate of VAT.
2
The amendment made by subsection (1) has effect in relation to supplies of face-value vouchers issued on or after 10 May 2012.
3
Subsection (4) applies where —
a
a face-value voucher issued before 10 May 2012 is used on or after that date to obtain goods or services,
b
paragraphs 2 to 4, 6 and 7 of Schedule 10A to VATA 1994 would not have applied in relation to the issue, or any subsequent supply, of the voucher because of paragraph 7A of that Schedule if the voucher had been issued on or after 10 May 2012, and
c
VAT is not payable under the law of another member State on the supply of the voucher to the user.
4
The use of the voucher is to be treated for the purposes of VATA 1994 as a supply of the goods or services by the person from whom they are obtained to the user of the voucher.
Power to require notification of arrival of means of transport in UK
202
In Schedule 11 to VATA 1994 (administration, collection and enforcement), in paragraph 2 (accounting for VAT and payment of VAT), after sub-paragraph (5) insert —
5A
Regulations under this paragraph may make provision —
a
for requiring the relevant person to give to the Commissioners such notification of the arrival in the United Kingdom of goods consisting of a means of transport, at such time and in such form and manner, as may be specified in the regulations or by the Commissioners in accordance with the regulations, and
b
where notification of the arrival of a means of transport acquired from another member State, or imported from a place outside the member States, is required by virtue of paragraph (a), for requiring any VAT on the acquisition or importation to be paid at such time and in such manner as may be specified in the regulations.
5B
The provision that may be made by regulations made by virtue of sub-paragraph (5A) includes —
a
provision for a notification required by virtue of that sub-paragraph to contain such particulars relating to the notified arrival of the means of transport and any VAT chargeable on its acquisition or importation as may be specified in the regulations or by the Commissioners in accordance with the regulations,
b
provision for such a notification to be given by a person who is not the relevant person and is so specified, or is of a description so specified,
c
provision for such a notification to contain a declaration, given in such form and by such person as may be so specified, as to the information contained in the notification, and
d
supplementary, incidental, consequential or transitional provision (including provision amending any provision made by or under this Act or any other enactment).
5C
Subsection (3) of section 97 (orders subject to Commons approval) applies to a statutory instrument containing any regulations made by virtue of sub-paragraph (5A) which amend an enactment as it applies to an order within subsection (4) of that section.
5D
For the purposes of sub-paragraph (5A) —
“means of transport” has the same meaning as it has in this Act in the expression “new means of transport” (see section 95);
“relevant person”, in relation to the arrival of a means of transport in the United Kingdom, means —
where the means of transport has been acquired in the United Kingdom from another member State, the person who so acquires it,
where it has been imported from a place outside the member States, the person liable to pay VAT on the importation, and
in any other case —
the owner of the means of transport at the time of its arrival in the United Kingdom, or
where it is subject to a lease or hire agreement, the lessee or hirer of the means of transport at that time.
Non-established taxable persons
203
Schedule 28 contains provision about non-established taxable persons.
Administration of VAT
204
Schedule 29 contains provision about the administration of VAT.
PART 8
Other taxes
Landfill tax
Standard rate of landfill tax
205
1
In section 42(1)(a) and (2) of FA 1996 (amount of landfill tax) for “£64” substitute “£72”.
2
The amendments made by this section have effect in relation to disposals made (or treated as made) on or after 1 April 2013.
Landfill sites in Scotland
206
The following provisions are to be treated as having come into force, in so far as they extend to Scotland, on 21 March 2000 —
a
paragraph 19 of Schedule 2 to the Pollution Prevention and Control Act 1999 (which inserts paragraph (ba) into section 66 of FA 1996 (landfill sites)), and
b
section 6(1) of the Pollution Prevention and Control Act 1999, so far as relating to paragraph 19 of that Schedule.
Climate change levy
Climate change levy
207
The following Schedules amend, or make amendments connected with, Schedule 6 to FA 2000 (climate change levy) —
a
Schedule 30 (reduced-rate supplies, rates etc);
b
Schedule 31 (climate change agreements);
c
Schedule 32 (supplies subject to the carbon price support rates and combined heat and power stations).
Inheritance tax
Indexation of rate bands
208
1
Section 8 of IHTA 1984 (indexation of rate bands) is amended as follows.
2
In subsection (1), for “retail prices index for the month of September in 1993 or any later year” substitute “consumer prices index for the month of September in any year”.
3
In subsection (2), for “retail prices index” substitute “consumer prices index”.
4
For subsection (3) substitute —
3
In this section, “consumer prices index” means the all items consumer prices index published by the Statistics Board.
5
The amendments made by this section have effect for the purposes of chargeable transfers made on or after 6 April 2015.
Gifts to charities etc
209
Schedule 33 contains provision for a lower rate of inheritance tax to be charged on transfers made on death that include sufficient gifts to charities or registered clubs.
Settled property: effect of certain arrangements
210
1
IHTA 1984 is amended as follows.
2
In section 48 (settled property: excluded property) —
a
in subsection (1), after paragraph (c) insert
or,
d
in a case where paragraphs (a) , (b) and (d) of section 74A (1) are satisfied —
i
it is a reversionary interest, in the relevant settled property, to which the individual is beneficially entitled, and
ii
the individual has or is able to acquire (directly or indirectly) another interest in that relevant settled property.
Terms used in paragraph (d) have the same meaning as in section 74A .
,
b
in subsection (3), for “subsection (3B)” substitute “subsections (3B) and (3D)”, and
c
after subsection (3C) insert —
3D
Where paragraphs (a) to (d) of section 74A (1) are satisfied, subsection (3)(a) above does not apply at the time they are first satisfied or any later time to make the relevant settled property (within the meaning of section 74A ) excluded property.
3
After section 74 insert —
Arrangements involving acquisition of interest in settled property etc
74A
1
This section applies where —
a
one or more persons enter into arrangements,
b
in the course of the arrangements —
i
an individual (“the individual”) domiciled in the United Kingdom acquires or becomes able to acquire (directly or indirectly) an interest in property comprised in a settlement (“the relevant settled property”), and
ii
consideration in money or money’s worth is given by one or more of the persons mentioned in paragraph (a) (whether or not in connection with the acquisition of that interest or the individual becoming able to acquire it),
c
there is a relevant reduction in the value of the individual’s estate, and
d
condition A or condition B is met.
2
Condition A is that —
a
the settlor was not domiciled in the United Kingdom at the time the settlement was made, and
b
the relevant settled property is situated outside the United Kingdom at any time during the course of the arrangements.
3
Condition B is that —
a
the settlor was not an individual or a close company at the time the settlement was made, and
b
condition A is not met.
4
Subsection (6) applies if all or a part of a relevant reduction (“amount A”) is attributable to the value of the individual’s section 49(1) property being less than it would have been in the absence of the arrangements.
5
“The individual’s section 49(1) property” means settled property to which the individual is treated as beneficially entitled under section 49(1) by reason of the individual being beneficially entitled to an interest in possession in the property.
6
Where this subsection applies —
a
a part of that interest in possession is deemed, for the purposes of section 52, to come to an end at the relevant time, and
b
that section applies in relation to the coming to an end of that part as if the reference in subsection (4)(a) of that section to a corresponding part of the whole value of the property in which the interest in possession subsists were a reference to amount A.
7
Subsection (8) applies to so much (if any) of a relevant reduction as is not amount A (“amount B”).
8
Tax is to be charged as if the individual had made a transfer of value at the relevant time and the value transferred by it had been equal to amount B.
Section 74A: supplementary provision
74B
1
A transfer of value arising by virtue of section 74A is to be taken to be a transfer which is not a potentially exempt transfer.
2
For the purposes of section 74A —
a
when determining the value transferred by a transfer of value arising by virtue of that section, no account is to be taken of section 3(2),
b
nothing in section 10(1) applies to prevent such a transfer, and
c
nothing in sections 102 to 102C of the Finance Act 1986 applies in relation to such a transfer.
3
Where, ignoring this subsection, a transfer of value would arise by virtue of section 74A (“the current transfer”), the value transferred by a relevant related transfer is to be treated as reducing the value transferred by the current transfer.
But this subsection does not apply if and to the extent that the relevant related transfer has already been applied to reduce another transfer of value arising by virtue of that section.
4
“Relevant related transfer” means —
a
where the arrangements consist of a series of operations, any transfer of value constituted by one or more of those operations which occur before or at the same time as the current transfer, other than a transfer of value arising by virtue of section 74A, and
b
where the arrangements consist of a single operation, any transfer of value which arises from that operation, other than a transfer of value arising by virtue of section 74A.
5
Section 268(3) does not apply to a transfer of value arising by virtue of section 74A.
6
Where —
a
a transfer of value has arisen by virtue of section 74A,
b
in the course of the arrangements the individual acquires an interest in possession in settled property, and
c
section 5(1B) applies to the interest in possession so that it forms part of the individual’s estate,
this Act has effect as if that transfer of value had never arisen.
Interpretation of sections 74A and 74B
74C
1
Subsections (2) to (4) have effect for the purposes of sections 74A and 74B .
2
An individual has an interest in property comprised in a settlement if —
a
the property, or any derived property, is or will or may become payable to, or applicable for the benefit of —
i
the individual,
ii
the individual’s spouse or civil partner, or
iii
a close company in relation to which the individual or the individual’s spouse or civil partner is a participator or a company which is a 51% subsidiary of such a close company,
in any circumstances whatsoever, or
b
a person within sub-paragraph (i) , (ii) or (iii) of paragraph (a) enjoys a benefit deriving (directly or indirectly) from the property or any derived property.
3
A “relevant reduction” in the value of the individual’s estate occurs —
a
if and when the value of the individual’s estate first becomes less than it would have been in the absence of the arrangements, and
b
on each subsequent occasion when the value of that estate becomes less than it would have been in the absence of the arrangements and that difference in value is greater than the sum of any previous relevant reductions.
4
The amount of a relevant reduction is —
a
in the case of a reduction within subsection (3)(a) , the difference between the value of the estate and its value in the absence of the arrangements, and
b
in the case of a reduction within subsection (3)(b) , the amount by which the difference in value mentioned in that provision exceeds the sum of any previous relevant reductions.
5
In sections 74A and 74B and this section —
“arrangements” includes any scheme, transaction or series of transactions, agreement or understanding, whether or not legally enforceable, and any associated operations;
“close company” has the meaning given in section 102;
“derived property”, in relation to any property, means —
income from that property,
property directly or indirectly representing —
proceeds of that property, or
proceeds of income from that property, or
income from property which is derived property by virtue of paragraph (b);
“operation” includes an omission;
“participator” has the meaning given in section 102;
“the relevant time” means —
the time the relevant reduction occurs, or
if later, the time section 74A first applied;
“51% subsidiary” has the same meaning as in the Corporation Tax Acts (see Chapter 3 of Part 24 of the Corporation Tax Act 2010).
4
In section 201 (liability for tax: settled property), after subsection (4) insert —
4A
Where —
a
a charge to tax arises under or by virtue of section 74A, or
b
in a case where paragraphs (a) to (d) of section 74A are satisfied, a charge to tax arises under section 64 or 65 in respect of the relevant settled property (within the meaning of section 74A),
subsection (1) of this section has effect as if the persons listed in that subsection included the individual mentioned in section 74A(1)(b)(i).
5
The amendments made by this section are treated as having come into force on 20 June 2012 and have effect in relation to arrangements entered into on or after that day.
Bank levy
The bank levy
211
Schedule 34 contains provision about the bank levy.
Stamp duty land tax, stamp duty reserve tax and stamp duty
Prevention of avoidance: subsales etc
212
1
In section 45 of FA 2003 (contract and conveyance: effect of transfer of rights), after subsection (1) insert —
1A
The reference in subsection (1)(b) to an assignment, subsale or other transaction does not include the grant or assignment of an option.
2
The amendment made by this section has effect in relation to grants or assignments of options on or after 21 March 2012.
Rate in respect of residential property where consideration over £2m
213
1
In section 55(2) of FA 2003 (amount of SDLT chargeable), in Table A (bands and percentages for residential property), for the final entry (cases where consideration is more than £1,000,000 to be chargeable at 5%) substitute —
More than £1,000,000 but not more than £2,000,000 5% More than £2,000,000 7%
.
2
The amendment made by this section has effect in relation to any land transaction of which the effective date is on or after 22 March 2012.
3
But that amendment does not have effect in relation to any transaction —
a
effected in pursuance of a contract entered into and substantially performed before 22 March 2012, or
b
effected in pursuance of a contract entered into before that date and not excluded by subsection (4).
4
A transaction effected in pursuance of a contract entered into before 22 March 2012 is excluded by this subsection if —
a
there is any variation of the contract, or assignment (or assignation) of rights under the contract, on or after 22 March 2012,
b
the transaction is effected in consequence of the exercise on or after that date of any option, right of pre-emption or similar right, or
c
on or after that date there is an assignment (or assignation), subsale or other transaction relating to the whole or part of the subject-matter of the contract as a result of which a person other than the purchaser under the contract becomes entitled to call for a conveyance.
Higher rate for certain transactions
214
Schedule 35 contains provision about the amount of tax chargeable on certain transactions involving higher threshold interests in dwellings.
Disclosure of stamp duty land tax avoidance schemes
215
In section 308 of FA 2004 (duties of promoter), after subsection (5) insert —
6
The Treasury may by regulations provide for this section to apply with modifications in relation to proposals or arrangements that —
a
enable, or might be expected to enable, a person to obtain an advantage in relation to stamp duty land tax, and
b
are of a description specified in the regulations.
Health service bodies
216
1
In Part 4 of FA 2003 (stamp duty land tax), after section 67 insert —
Acquisitions by certain health service bodies
67A
1
A land transaction is exempt from charge if the purchaser is any of the following —
a
the National Health Service Commissioning Board;
b
a clinical commissioning group established under section 14D of the National Health Service Act 2006;
c
an NHS foundation trust;
d
a Local Health Board established under section 11 of the National Health Service (Wales) Act 2006;
e
a National Health Service trust established under section 18 of that Act;
f
a Health and Social Services trust established under the Health and Personal Social Services (Northern Ireland) Order 1991.
2
Any relief under this section must be claimed in a land transaction return or an amendment of such a return.
2
The following provisions are repealed —
a
section 61(3) to (3C) of the National Health Service and Community Care Act 1990 (stamp duty and stamp duty land tax reliefs for health service bodies);
b
section 58 of the National Health Service Act 2006 (which applies those stamp duty and stamp duty land tax reliefs to NHS foundation trusts);
c
paragraphs 132 and 133 of Schedule 1 to the National Health Service (Consequential Provisions) Act 2006.
3
The repeals in subsection (2), to the extent that they relate to stamp duty, have effect in relation to any instrument executed on or after the day on which this Act is passed.
4
Subject to that, the amendments made by this section have effect in relation to any land transaction of which the effective date is on or after the day on which this Act is passed.
5
Until such time as bodies of a kind mentioned in subsection (6) are abolished under the Health and Social Care Act 2011, section 67A of FA 2003 has effect as if the list in that section included bodies of that kind.
6
Those bodies are —
a
a National Health Service trust established under section 25 of the National Health Service Act 2006, and
b
a Primary Care Trust.
Collective investment schemes: stamp duty and stamp duty reserve tax
217
1
The Treasury may by regulations confer an exemption or other relief from stamp duty or stamp duty reserve tax for transactions relating to collective investment schemes.
2
The regulations may, in particular —
a
specify descriptions of collective investment scheme in relation to which the exemption or relief is available, and
b
specify the cases in which the exemption or relief is available.
3
Regulations under this section may make different provision for different cases or different purposes.
4
Regulations under this section —
a
may modify any enactment or instrument (whenever passed or made), and
b
may include incidental, consequential, supplementary or transitional provision.
5
Regulations under this section are to be made by statutory instrument.
6
A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of the House of Commons.
7
In this section —
“collective investment scheme” has the meaning given by section 235 of the Financial Services and Markets Act 2000, and
“modify” includes amend, repeal or revoke.
PART 9
Miscellaneous matters
International matters
Agreement between UK and Switzerland
218
1
Schedule 36 contains provision giving effect to —
a
an agreement signed on 6 October 2011 between the United Kingdom and the Swiss Confederation on co-operation in the area of taxation, as amended by a protocol signed by them on 20 March 2012 and by a mutual agreement signed by them on 18 April 2012 implementing article XVIII of that protocol, and
b
the joint declaration (concerning a tax finality payment) forming an integral part of that protocol.
2
Schedule 36 comes into force on the day on which the agreement of 6 October 2011 enters into force.
3
In section 23 of the Constitutional Reform and Governance Act 2010, after subsection (2A) insert —
2B
Section 20 does not apply to any treaty referred to in section 218(1) of the Finance Act 2012.
Penalties: offshore income etc
219
In paragraph 21A of Schedule 24 to FA 2007 (classification of territories), in sub-paragraph (4) —
a
omit “and” at the end of paragraph (b), and
b
at the end of paragraph (c) insert —
d
the existence of any other arrangements between the UK and that territory for co-operation in the area of taxation, and
e
the quality of any such other arrangements (in particular, the extent to which the co-operation provided for in them assists or is likely to assist in the protection of revenue raised from taxation in the UK).
International military headquarters, EU forces, etc
220
Schedule 37 contains provision about the tax treatment of international military headquarters, EU forces, etc.
Financial sector regulation
Tax consequences of financial sector regulation
221
1
The Treasury may by regulations make provision about the tax consequences in relation to securities of any regulatory requirement imposed by any EU legislation (whenever adopted) or enactment on —
a
persons who are authorised persons for the purposes of the Financial Services and Markets Act 2000 (see section 31 of that Act), or
b
parent undertakings (as defined in section 420 of that Act) of such persons.
2
Regulations under this section may, in particular, make provision —
a
charging any tax or granting, withdrawing or restricting an exemption or other relief from any tax, and
b
about the treatment of arrangements the purpose, or one of the main purposes, of which is to secure a tax advantage.
3
Regulations under this section may provide that a reference in the regulations —
a
to any EU legislation or enactment,
b
to any document, or
c
to any provision of any EU legislation, enactment or document
is to be construed as a reference to that legislation, enactment, document or provision as amended from time to time.
4
Regulations under this section —
a
may apply (with or without modifications) or disapply any enactment,
b
may modify, amend, repeal or revoke any enactment,
c
may make different provision for different cases or different purposes, and
d
may include incidental, consequential, supplementary or transitional provision.
5
Regulations under this section are to be made by statutory instrument.
6
No regulations may be made under this section unless a draft of the statutory instrument containing them has been laid before and approved by a resolution of the House of Commons.
7
In this section —
“arrangements” includes any arrangements, scheme or understanding of any kind, whether or not legally enforceable and whether involving a single transaction or two or more transactions;
“enactment” includes an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978), and includes an enactment whenever passed or made;
“tax” includes stamp duty;
“tax advantage” means —
a relief from tax (including a tax credit) or increased relief from tax,
a repayment of tax or increased repayment of tax,
the avoidance, reduction or delay of a charge to tax or an assessment to tax, or
the avoidance of a possible assessment to tax.
Incapacitated persons and minors
Removal of special provision for incapacitated persons and minors
222
1
In TMA 1970 omit —
a
section 42(8) (procedure for making claims etc on behalf of incapacitated persons),
b
section 72 (trustees, guardians, etc of incapacitated persons), and
c
section 73 (further provision as to infants).
2
In Part 4 of FA 2003 (stamp duty land tax), omit section 106(1) and (2) (persons acting in a representative capacity on behalf of incapacitated persons and minors).
3
Accordingly, incapacitated persons are (and minors remain) assessable and chargeable to the taxes in question.
4
In consequence of the amendments made by subsections (1) and (2) —
a
in section 118(1) of TMA 1970, omit the definitions of “incapacitated person” and “infant”,
b
omit paragraphs 33 and 34 of Schedule 1 to the Age of Legal Capacity (Scotland) Act 1991,
c
in paragraph 5 of Schedule 2 to the Social Security Contributions and Benefits Act 1992 —
i
omit paragraph (a) (and the “or” after it), and
ii
in paragraph (b), for “such” substitute “Class 4”,
d
in paragraph 5 of Schedule 2 to the Social Security Contributions and Benefits (Northern Ireland) Act 1992 —
i
omit paragraph (a) (and the “or” after it), and
ii
in paragraph (b), for “such” substitute “Class 4”, and
e
in section 81B(4) of FA 2003, omit paragraph (b) (and the “or” before it).
5
The amendments made by subsections (1) and (4)(a) to (d) have effect for the tax year 2012-13 and subsequent tax years.
6
The amendments made by subsections (2) and (4)(e) have effect in relation to land transactions of which the effective date is on or after the day on which this Act is passed.
Administration
Tax agents: dishonest conduct
223
1
Schedule 38 contains provision about tax agents who engage in dishonest conduct.
2
That Schedule comes into force on such day as the Treasury may by order appoint.
3
An order under subsection (2) —
a
may make different provision for different purposes, and
b
may include transitional provision and savings.
4
The Treasury may by order make any incidental, supplemental, consequential, transitional or saving provision in consequence of Schedule 38.
5
An order under subsection (4) may —
a
make different provision for different purposes, and
b
make provision amending, repealing or revoking any provision made by or under an Act (whenever passed or made).
6
An order under this section is to be made by statutory instrument.
7
A statutory instrument containing an order under subsection (4) is subject to annulment in pursuance of a resolution of the House of Commons.
Information powers
224
1
Schedule 36 to FA 2008 (information and inspection powers) is amended as follows.
2
After paragraph 5 insert —
Power to obtain information about persons whose identity can be ascertained
5A
1
An authorised officer of Revenue and Customs may by notice in writing require a person to provide relevant information about another person (“the taxpayer”) if conditions A to D are met.
2
Condition A is that the information is reasonably required by the officer for the purpose of checking the tax position of the taxpayer.
3
Condition B is that —
a
the taxpayer’s identity is not known to the officer, but
b
the officer holds information from which the taxpayer’s identity can be ascertained.
4
Condition C is that the officer has reason to believe that —
a
the person will be able to ascertain the taxpayer’s identity from the information held by the officer, and
b
the person obtained relevant information about the taxpayer in the course of carrying on a business.
5
Condition D is that the taxpayer’s identity cannot readily be ascertained by other means from the information held by the officer.
6
“Relevant information” means all or any of the following —
a
name,
b
last known address, and
c
date of birth (in the case of an individual).
7
This paragraph applies for the purpose of checking the tax position of a class of persons as for the purpose of checking the tax position of a single person (and references to “the taxpayer” are to be read accordingly).
3
In paragraph 6 (notices), in sub-paragraph (1), for “or 5” substitute “, 5 or 5A”.
4
In paragraph 31 (right to appeal against notice given under paragraph 5), after “paragraph 5” insert “or 5A”.
5
Accordingly, in the heading immediately before paragraph 31, at the end insert “ or 5A ”.
6
In section 18D of TMA 1970 (savings income: content of regulations under section 18B), in subsection (1), for “sections 17 and 18” substitute “paragraph 1 of Schedule 23 to the Finance Act 2011 (data-gathering powers)”.
7
The amendments made by subsections (1) to (5) apply for the purpose of checking the tax position of a taxpayer as regards periods or tax liabilities whenever arising (whether before, on or after the day on which this Act is passed).
8
The amendment made by subsection (6) is treated as having come into force on 1 April 2012.
PAYE regulations: information
225
1
Section 684 of ITEPA 2003 (PAYE regulations) is amended as follows.
2
In the list in subsection (2) —
a
after item 4 insert —
4ZA
Provision —
a
for authorising or requiring a person who provides with respect to payments of or on account of PAYE income a service that is specified or of a specified description (“a relevant payment service”) to supply to Her Majesty’s Revenue and Customs information about payments with respect to which the service is provided, or any information the Commissioners may request about features of the service provided or to be provided with respect to particular payments;
b
for conferring power on the Commissioners to specify by directions circumstances in which provision made by virtue of paragraph (a) or subsection (4ZB) is not to apply in relation to a payment;
c
for securing that a supply of information that is authorised by regulations under paragraph (a) is not treated as breaching any obligation of confidence owed in respect of the information by the person supplying it;
d
for prohibiting or restricting the disclosure, otherwise than to Her Majesty’s Revenue and Customs, of information by a person to whom it was supplied pursuant to a requirement imposed by virtue of subsection (4ZB);
e
for requiring a person who provides, or is to provide, a relevant payment service to take steps (including any steps that may be specified, or further specified, in accordance with item 8A(b)) for facilitating the meeting by persons making payments of obligations imposed by virtue of subsection (4ZB).
, and
b
after item 8 insert —
8A
Provision requiring compliance with any directions the Commissioners may give —
a
about the form and manner in which any information is to be provided under the regulations;
b
specifying, or further specifying, steps for the purposes of item 4ZA(e);
c
specifying information that a person making payments of or on account of PAYE income must provide about the method by which the payments are made.
3
After subsection (3B) insert —
3C
References in items 4ZA and 8A of the above list to directions include directions making different provision for different cases.
4
After subsection (4) insert —
4ZA
Item 8A in the above list does not prejudice the power of the Commissioners under subsection (1) to make provision in PAYE regulations about the matters mentioned in that item.
4ZB
The persons to whom PAYE information regulations may require information to be supplied include, in the case of information about a payment, a person who provides, or is to provide, with respect to the payment a service such as is mentioned in item 4ZA(a) in the above list.
4ZC
In subsection (4ZB) “PAYE information regulations” means PAYE regulations that require information to be supplied for any purpose authorised by subsections (1) and (2).
High value residential property or dwellings
New tax on ownership of high-value residential properties or dwellings
226
The Commissioners for Her Majesty’s Revenue and Customs may incur expenditure in preparing for the introduction of a new tax to be charged in respect of high-value residential properties or dwellings owned otherwise than by individuals.
Miscellaneous reliefs etc
Repeals of miscellaneous reliefs etc
227
Schedule 39 contains repeals of miscellaneous reliefs etc.
PART 10
Final provisions
Interpretation
228
1
In this Act —
“ALDA 1979” means the Alcoholic Liquor Duties Act 1979,
“BGDA 1981” means the Betting and Gaming Duties Act 1981,
“CAA 2001” means the Capital Allowances Act 2001,
“CEMA 1979” means the Customs and Excise Management Act 1979,
“CRCA 2005” means the Commissioners for Revenue and Customs Act 2005,
“CTA 2009” means the Corporation Tax Act 2009,
“CTA 2010” means the Corporation Tax Act 2010,
“F(No.3)A 2010” means the Finance (No. 3) Act 2010,
“HODA 1979” means the Hydrocarbon Oil Duties Act 1979,
“ICTA” means the Income and Corporation Taxes Act 1988,
“IHTA 1984” means the Inheritance Tax Act 1984,
“ITA 2007” means the Income Tax Act 2007,
“ITEPA 2003” means the Income Tax (Earnings and Pensions) Act 2003,
“ITTOIA 2005” means the Income Tax (Trading and Other Income) Act 2005,
“OTA 1975” means the Oil Taxation Act 1975,
“PRTA 1980” means the Petroleum Revenue Tax Act 1980,
“TCGA 1992” means the Taxation of Chargeable Gains Act 1992,
“TIOPA 2010” means the Taxation (International and Other Provisions) Act 2010,
“TMA 1970” means the Taxes Management Act 1970,
“TPDA 1979” means the Tobacco Products Duty Act 1979,
“VATA 1994” means the Value Added Tax Act 1994, and
“VERA 1994” means the Vehicle Excise and Registration Act 1994.
2
In this Act —
“FA”, followed by a year, means the Finance Act of that year;
“F(No.2)A”, followed by a year, means the Finance (No. 2) Act of that year.
Short title
229
This Act may be cited as the Finance Act 2012.
SCHEDULES
SCHEDULE 1
High income child benefit charge
Section 8
The high income child benefit charge
1
In Part 10 of ITEPA 2003 (social security benefits), after Chapter 7 insert —
CHAPTER 8
High income child benefit charge
High income child benefit charge
681B
1
A person (“P”) is liable to a charge to income tax for a tax year if —
a
P’s adjusted net income for the year exceeds £50,000, and
b
one or both of conditions A and B are met.
2
The charge is to be known as a “high income child benefit charge”.
3
Condition A is that —
a
P is entitled to an amount in respect of child benefit for a week in the tax year, and
b
there is no other person who is a partner of P throughout the week and has an adjusted net income for the year which exceeds that of P.
4
Condition B is that —
a
a person (“Q”) other than P is entitled to an amount in respect of child benefit for a week in the tax year,
b
Q is a partner of P throughout the week, and
c
P has an adjusted net income for the year which exceeds that of Q.
The amount of the charge
681C
1
The amount of the high income child benefit charge to which a person (“P”) is liable for a tax year is the appropriate percentage of the total of —
a
any amounts in relation to which condition A is met, and
b
any amounts in relation to which condition B is met.
For conditions A and B, see section 681B.
2
“The appropriate percentage” is —
a
100%, or
b
if less, the percentage determined by the formula —
ANI – L X %
Where —
ANI is P’s adjusted net income for the tax year;
L is £50,000;
X is £100.
3
If —
a
the total of the amounts mentioned in paragraphs (a) and (b) of subsection (1), or the amount of the charge determined under that subsection, is not a whole number of pounds, or
b
the percentage determined under subsection (2)(b) is not a whole number,
it is to be rounded down to the nearest whole number.
Extension of charge in cases where child not living with claimant
681D
1
This section applies where —
a
a person (“R”) is entitled to an amount in respect of child benefit for a child for a week in a tax year by virtue of section 143(1)(b) of SSCBA 1992 or section 139(1)(b) of SSCB(NI)A 1992 (persons contributing to the cost of providing for a child),
b
neither R, nor any person who is a partner of R throughout that week, is liable for a charge to income tax in respect of that amount under section 681B, and
c
there is another person (“S”) who, for the purposes of section 143(1)(a) of SSCBA 1992 or section 139(1)(a) of SSCB(NI)A 1992 (persons with whom child is living), is a person who has the child living with him or her in that week.
2
Section 681B applies as if S were entitled to the amount of child benefit mentioned in subsection (1)(a).
3
Where there is more than one person to whom subsection (1)(c) applies in relation to an amount of child benefit for a week, subsection (2) applies only to the one with the highest adjusted net income for the tax year.
4
For the purposes of subsection (1)(a), an amount of child benefit to which R is entitled for a week is to be ignored if —
a
the period (which includes that week) for which R is entitled to child benefit by virtue of section 143(1)(b) of SSCBA 1992 or section 139(1)(b) of SSCB(NI)A 1992 in respect of the same child does not exceed 52 weeks, and
b
R is entitled to child benefit in respect of the child for the week immediately before and the week immediately after that period by virtue of section 143(1)(a) of SSCBA 1992 or section 139(1)(a) of SSCB(NI)A 1992.
5
In this section “child” means —
a
a child within the meaning of section 142 of SSCBA 1992 or section 138 of SSCB(NI)A 1992, or
b
a qualifying young person within the meaning of either of those sections.
Special cases
681E
1
The following amounts are to be disregarded for the purposes of this Chapter —
a
amounts to which a person is entitled but in respect of which an election under section 13A of the Social Security Administration Act 1992 or section 11A of the Social Security Administration (Northern Ireland) Act 1992 (election for payment of child benefit not to be made if high income child benefit charge would be triggered) has effect;
b
amounts to which a person is entitled by virtue of section 145A of SSCBA 1992 or section 141A of SSCB(NI)A 1992 (entitlement to child benefit after death of child or qualifying young person).
2
Subsection (3) applies if —
a
a person (“T”) is entitled to an amount in respect of child benefit for a week in a tax year or is treated as so entitled by virtue of section 681D(2),
b
two or more other persons are partners of T throughout the week, and
c
two or more of those persons would, apart from subsection (3), each be liable to a charge under section 681B(1) in relation to that amount.
3
Only one of those persons is liable, namely the person with the highest adjusted net income for the tax year.
Alteration of income limit etc by Treasury order
681F
1
The Treasury may by order —
a
substitute another amount for the amount for the time being specified in section 681B(1)(a) and defined as “L” in section 681C(2), or
b
substitute another amount for the amount defined as “X” in section 681C(2).
2
An order under this section has effect for tax years beginning after the order is made.
3
A statutory instrument containing an order under this section which increases any person’s liability to income tax may not be made unless a draft of it has been laid before and approved by a resolution of the House of Commons.
Meaning of “partner”
681G
1
For the purposes of this Chapter a person is a “partner” of another person at any time if any of conditions A to D is met at that time.
2
Condition A is that the persons are a man and a woman who are married to each other and are neither —
a
separated under a court order, nor
b
separated in circumstances in which the separation is likely to be permanent.
3
Condition B is that the persons are a man and a woman who are not married to each other but are living together as husband and wife.
4
Condition C is that the persons are two men, or two women, who are civil partners of each other and are neither —
a
separated under a court order, nor
b
separated in circumstances in which the separation is likely to be permanent.
5
Condition D is that the persons are two men, or two women, who are not civil partners of each other but are living together as if they were civil partners.
Other interpretation provisions
681H
1
This section applies for the purposes of this Chapter.
2
“Adjusted net income” of a person for a tax year means the person’s adjusted net income for that tax year as determined under section 58 of ITA 2007.
3
“Week” means a period of 7 days beginning with a Monday; and a week is in a tax year if (and only if) the Monday with which it begins is in the tax year.
Consequential amendments
2
In section 7 of TMA 1970 (notice of liability to income tax and capital gains tax), in subsection (3), for the words from “his total income” to the end substitute
—
a
the person’s total income consists of income from sources falling within subsections (4) to (7) below,
b
the person has no chargeable gains, and
c
the person is not liable to a high income child benefit charge.
3
After section 13 of the Social Security Administration Act 1992 insert —
Election not to receive child benefit
13A
1
A person (“P”) who is entitled to child benefit in respect of one or more children may elect for all payments of the benefit to which P is entitled not to be made.
2
An election may be made only if P reasonably expects that, in the absence of the election, P or another person would be liable to a high income child benefit charge in respect of the payments to which the election relates made for weeks in the first tax year.
3
An election has effect in relation to payments made for weeks beginning after the election is made.
4
But where entitlement to child benefit is backdated, an election may have effect in relation to payments for weeks beginning in the period of three months ending immediately before the claim for the benefit was made.
5
An election may be revoked.
6
A revocation has effect in relation to payments made for weeks beginning after the revocation is made.
7
But if —
a
P makes an election which results in all payments, in respect of child benefit, to which P is entitled for one or more weeks in a tax year not being paid, and
b
had no election been made, neither P nor any other person would have been liable to a high income child benefit charge in relation to the payments,
P may, no later than two years after the end of the tax year, revoke the election so far as it relates to the payments.
8
Subsections (2) to (7) are subject to directions under subsection (9).
9
The Commissioners for Her Majesty’s Revenue and Customs may give directions as to —
a
the form of elections and revocations under this section, the manner in which they are to be made and the time at which they are to be treated as made, and
b
the circumstances in which, if child benefit is not being paid to a person at the full rate or the Commissioners are satisfied that there are doubts as to a person’s entitlement to child benefit for a child, an election or revocation is not to have effect or its effect is to be postponed.
10
For the purposes of this section —
“child” includes a qualifying young person;
“first tax year”, in relation to an election, means the tax year in which the first week beginning after the election is made falls;
“week” means a period of 7 days beginning with a Monday; and a week is in a tax year if (and only if) the Monday with which it begins is in the tax year.
4
After section 11 of the Social Security Administration (Northern Ireland) Act 1992 insert —
Election not to receive child benefit
11A
1
A person (“P”) who is entitled to child benefit in respect of one or more children may elect for all payments of the benefit to which P is entitled not to be made.
2
An election may be made only if P reasonably expects that, in the absence of the election, P or another person would be liable to a high income child benefit charge in respect of the payments to which the election relates made for weeks in the first tax year.
3
An election has effect in relation to payments made for weeks beginning after the election is made.
4
But where entitlement to child benefit is backdated, an election may have effect in relation to payments for weeks beginning in the period of three months ending immediately before the claim for the benefit was made.
5
An election may be revoked.
6
A revocation has effect in relation to payments made for weeks beginning after the revocation is made.
7
But if —
a
P makes an election which results in all payments, in respect of child benefit, to which P is entitled for one or more weeks in a tax year not being paid, and
b
had no election been made, neither P nor any other person would have been liable to a high income child benefit charge in relation to the payments,
P may, no later than two years after the end of the tax year, revoke the election so far as it relates to the payments.
8
Subsections (2) to (7) are subject to directions under subsection (9).
9
The Commissioners for Her Majesty’s Revenue and Customs may give directions as to —
a
the form of elections and revocations under this section, the manner in which they are to be made and the time at which they are to be treated as made, and
b
the circumstances in which, if child benefit is not being paid to a person at the full rate or the Commissioners are satisfied that there are doubts as to a person’s entitlement to child benefit for a child, an election or revocation is not to have effect or its effect is to be postponed.
10
For the purposes of this section —
“child” includes a qualifying young person;
“first tax year”, in relation to an election, means the tax year in which the first week beginning after the election is made falls;
“week” means a period of 7 days beginning with a Monday; and a week is in a tax year if (and only if) the Monday with which it begins is in the tax year.
5
1
ITEPA 2003 is amended as follows.
2
In section 1 (overview of contents of Act) —
a
in subsection (1)(c), after “see” insert “Chapters 1 to 7 of”, and
b
in subsection (3), after paragraph (a) insert —
aa
makes provision for the high income child benefit charge (see Chapter 8 of Part 10),
.
3
In section 655 (structure of Part 10), in subsection (1), at the end insert —
Chapter 8 makes provision for the high income child benefit charge.
4
In section 684 (PAYE regulations), in subsection (2), after Item 2 insert —
2ZA Provision —
for deductions to be made, if and to the extent that the payee does not object, with a view to securing that income tax payable for a tax year by the payee by virtue of section 681B (high income child benefit charge) is deducted from PAYE income of the payee paid during that year,
for repayments to be made in a tax year, if and to the extent that the payee does not object, in respect of any amounts overpaid on account of income tax under that section for that tax year, and
as to the circumstances and manner in which a payee may object to the making of deductions or repayments.
5
In section 685 (tax tables), in subsection (2)(b), after “2” insert “, 2ZA”.
6
In section 717 (orders and regulations made by Treasury or Commissioners), in subsection (4), after “companies)” insert “or to which section 681F(3) (variation of income limit etc for high income child benefit charge: orders increasing liability to tax) applies”.
7
In Part 2 of Schedule 1 (index of defined expressions), insert at the appropriate places —
adjusted net income (in Chapter 8 of Part 10) section 681H ” “partner (in Chapter 8 of Part 10) section 681G ” “week (in Chapter 8 of Part 10) section 681H
6
1
ITA 2007 is amended as follows.
2
In section 1 (overview of the Income Tax Acts), in subsection (1)(a), after “social security income” insert “and makes provision for the high income child benefit charge”.
3
In section 30 (additional tax), in subsection (1), after “section 809ZO (tainted charity donations by trustees: charge to tax),” insert —
Chapter 8 of Part 10 of ITEPA 2003 (high income child benefit charge),
.
Commencement
7
1
The amendments made by this Schedule have effect for the tax year 2012-13 and subsequent tax years.
2
In relation to the tax year 2012-13, references in section 681B of ITEPA 2003 (as inserted by paragraph 1) to an amount to which a person is entitled in respect of child benefit for a week in the tax year do not include any amount to which the person is entitled in respect of child benefit for a week beginning before 7 January 2013.
3
In sub-paragraph (2), “week” means a period of 7 days beginning with a Monday.
SCHEDULE 2
Profits arising from the exploitation of patents etc
Section 19
PART 1
Amendments of CTA 2010
1
1
In CTA 2010, after Part 8 insert —
PART 8A
Profits arising from the exploitation of patents etc
CHAPTER 1
Reduced corporation tax rate for profits from patents etc
Election for special treatment of profits from patents etc
357A
1
A company may elect that any relevant IP profits of a trade of the company for an accounting period for which it is a qualifying company are chargeable at a lower rate of corporation tax.
2
An election under subsection (1) is to be given effect by allowing a deduction to be made in calculating for corporation tax purposes the profits of the trade for the period.
3
The amount of the deduction is —
RP × ( MR – IPR MR )
where —
RP is the relevant IP profits of the trade of the company,
MR is the main rate of corporation tax, and
IPR is the special IP rate of corporation tax.
4
The special IP rate of corporation tax is 10%.
5
Chapter 2 specifies when a company is a qualifying company.
6
Chapter 3 makes provision for determining the relevant IP profits or relevant IP losses of a trade.
7
Chapter 4 makes provision for an alternative way of determining the relevant IP profits or losses of a trade known as “streaming”.
8
Chapter 5 makes provision in relation to the relevant IP losses of a trade.
9
Chapter 6 contains anti-avoidance provisions.
10
Chapter 7 contains supplementary provision.
CHAPTER 2
Qualifying companies
Meaning of “qualifying company”
357B
1
A company is a qualifying company for an accounting period if —
a
condition A or B is met, and
b
in the case of a company that is a member of a group, condition C is met.
2
Condition A is that, at any time during the accounting period, the company —
a
holds any qualifying IP rights, or
b
holds an exclusive licence in respect of any qualifying IP rights.
For the meaning of “exclusive licence”, see section 357BA.
3
Condition B is that —
a
the company has held a qualifying IP right or an exclusive licence in respect of such a right,
b
the company has received income in respect of an event which occurred in relation to the right or licence, or any part of which so occurred, at a time when —
i
the company was a qualifying company, and
ii
an election under section 357A had effect in relation to it, and
c
the income falls to be taxed in the accounting period.
4
A right is a qualifying IP right for the purposes of this Part if —
a
it is a right to which this Part applies (see section 357BB), and
b
the company meets the development condition in relation to the right (see section 357BC).
5
Condition C is that the company meets the active ownership condition for the accounting period (see section 357BE).
Meaning of “exclusive licence”
357BA
1
In this Part “exclusive licence”, in relation to a right (“the principal right”), means a licence which —
a
is granted by the person who holds either the principal right or an exclusive licence in respect of the principal right (“the proprietor”), and
b
confers on the person holding the licence (“the licence-holder”), or on the licence-holder and persons authorised by it, the rights in respect of the principal right that are listed in subsection (2).
2
The rights are —
a
one or more rights conferred to the exclusion of all other persons (including the proprietor) in one or more countries or territories, and
b
the right —
i
to bring proceedings without the consent of the proprietor or any other person in respect of any infringement of the rights within paragraph (a), or
ii
to receive the whole or the greater part of any damages awarded in respect of any such infringement.
3
Where the licence-holder has any right within subsection (2)(b) by virtue of any enactment or rule of law, the right is to be regarded for the purposes of this section as conferred by the licence.
4
Where —
a
a company (“C”) that is a member of a group holds either a right to which this Part applies or an exclusive licence in respect of such a right, and
b
C confers on another company that is a member of the group all of the rights held by C in respect of the invention,
that other company is to be treated for the purposes of this Part as holding an exclusive licence in respect of that right.
5
For the purposes of subsection (4) it does not matter if the rights conferred by C do not include the right to enforce, assign or grant a licence of any of those rights.
Rights to which this Part applies
357BB
1
This Part applies to the following rights —
a
a patent granted under the Patents Act 1977,
b
a patent granted under the European Patent Convention,
c
a right of a specified description which corresponds to a right within paragraph (a) or (b) and is granted under the law of a specified EEA state,
d
a supplementary protection certificate,
e
any plant breeders’ rights granted in accordance with Part 1 of the Plant Varieties Act 1997,
f
any Community plant variety rights granted under Council Regulation (EC) No 2100/94 .
2
Where —
a
directions are in force under section 22 of the Patents Act 1977 (information prejudicial to national security or safety of public) with respect to an application for a patent under that Act, and
b
the person making the application has been notified under section 18(4) of that Act that the application complies with the requirements of the Act and the rules,
the person is to be treated for the purposes of this Part as if the person had been granted the patent under that Act.
3
Where —
a
a person holds a marketing authorisation in respect of a product in accordance with any EU legislation, and
b
the product benefits from marketing protection (see subsection (4)) or data protection (see subsection (5)),
the person is to be treated for the purposes of this Part as having been granted a right to which this Part applies in respect of the product.
4
For the purposes of this section a product benefits from marketing protection if —
a
the product benefits from marketing protection by virtue of Article 14.11 of Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human use, or
b
any of the following prohibitions is in force —
i
the prohibition on placing on the market a generic of the product imposed by Article 10.1 of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use,
ii
the prohibition imposed by Article 8.1 of Regulation (EC) No 141/2000 of the European Parliament and of the Council of 16 December 1999 on orphan medicinal products, and
iii
the prohibition on placing on the market a generic of the product imposed by Article 13.1 of Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products.
5
For the purposes of this section a product benefits from data protection if —
a
the product benefits from the data exclusivity conferred by Article 10.5 of Directive 2001/83/EC of the European Parliament and of the Council,
b
the prohibition on referring to the results of tests or trials in relation to the product imposed by Article 74a of that Directive is in force, or
c
data relating to the product benefits from data protection under Article 59 of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market.
6
The reference to data in subsection (5)(c) does not include a study necessary for the renewal or review of a marketing authorisation granted in respect of the product in accordance with Regulation (EC) No 1107/2009 .
7
In this section —
“European Patent Convention” means the Convention on the Grant of European Patents,
“rules” means rules made under section 123 of the Patents Act 1977,
“specified” means specified in an order made by the Treasury, and
“supplementary protection certificate” means a certificate issued under —
Council Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products, or
Regulation (EC) No 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products.
8
The Treasury may by order —
a
amend this section so as to make provision about the circumstances in which a product benefits from marketing or data protection for the purposes of this section;
b
make such provision amending any reference in this section to EU legislation as appears to them appropriate in consequence of any EU legislation amending or replacing that EU legislation.
9
An order made under this section may make any incidental, supplemental, consequential, transitional or saving provision, including provision amending or modifying this Part.
The development condition
357BC
1
A company meets the development condition in relation to a right if condition A, B, C or D is met.
Section 357BD (meaning of “qualifying development”) applies for the purposes of this section.
2
Condition A is that —
a
the company has at any time carried out qualifying development in relation to the right, and
b
the company has not ceased to be, or become, a controlled member of a group since that time.
3
Condition B is that —
a
the company has at any time carried out qualifying development in relation to the right,
b
the company has ceased to be, or become, a controlled member of a group since that time,
c
the company has, for a period of 12 months beginning with the day on which it ceased to be, or became, a controlled member of the group, performed activities of the same description as those that constituted the qualifying development, and
d
the company remains a member of that group or (as the case may be) does not become a controlled member of any other group.
4
Condition C is that —
a
the company is a member of a group,
b
another company that is or has been a member of the group has carried out qualifying development in relation to the right, and
c
that other company was a member of the group at the time it carried out the qualifying development.
5
Condition D is that —
a
the company is a member of a group,
b
another company that is or has been a member of the group has carried out qualifying development in relation to the right,
c
that other company (“T”) or, where another member of the group begins to carry on the trade which T carried on immediately before becoming a member of the group, either or both of those companies have, while carrying on that trade as a member of the group, performed activities of the same description as those that constituted the qualifying development, and
d
those activities of those companies, taken together, have been performed for a period of 12 months beginning with the day on which T became a member of the group.
6
For the purposes of conditions A and B, a company becomes a controlled member of a group at any time if —
a
another company (“P”) either becomes the holder of a major interest in the company, or begins to control the company, at that time, and
b
immediately before that time the company was not associated with P or with any company associated with P immediately before that time.
7
For the purposes of conditions A and B, a company ceases to be a controlled member of a group at any time if —
a
every other company which immediately before that time held a major interest in, or controlled, the company ceases to do so, and
b
as a result the company ceases to be associated with any of those companies.
8
Where —
a
a company ceases to be a controlled member of a group at any time, and
b
at that time the company holds a major interest in, or controls, any other company,
that other company is to be treated for the purposes of conditions A and B as also having ceased to be a controlled member of the group at that time.
9
In subsections (6) and (7) “associated” is to be read in accordance with section 357GD(3).
10
The following provisions apply for the purposes of subsections (6) to (8) —
section 472 of CTA 2009 (meaning of “control”), and
sections 473 and 474 of CTA 2009 (meaning of “major interest”).
11
A company that meets the development condition in relation to a right by virtue of the performance of the activities mentioned in subsection (3) or (5) for the period of 12 months so mentioned is to be regarded as meeting that condition in relation to the right during that period (as well as at any other time when the company meets the condition).
Meaning of “qualifying development”
357BD
1
A company carries out “qualifying development” in relation to a right if —
a
it creates, or significantly contributes to the creation of, the invention, or
b
it performs a significant amount of activity for the purposes of developing the invention or any item or process incorporating the invention.
2
The reference in subsection (1)(b) to developing the invention includes developing ways in which the invention may be used or applied.
3
For the purposes of section 357BC it does not matter whether the qualifying development was carried out before or after —
a
the company, or
b
where the company is a member of a group, any member of the group,
became the holder of the right or (as the case may be) an exclusive licence in respect of the right.
The active ownership condition
357BE
1
A company meets the active ownership condition for an accounting period if all or almost all of the qualifying IP rights held by the company in that accounting period are rights in respect of which condition A or B is met.
2
Condition A is that during the accounting period the company performs a significant amount of management activity in relation to the rights.
3
In subsection (2) “management activity”, in relation to any qualifying IP rights, means formulating plans and making decisions in relation to the development or exploitation of the rights.
4
Condition B is that the company meets the development condition in relation to the rights by virtue of section 357BC(2) or (3).
5
Any reference in this section to a qualifying IP right held by the company includes a reference to a qualifying IP right in respect of which the company holds an exclusive licence.
CHAPTER 3
Relevant IP profits
Steps for calculating relevant IP profits of a trade
Relevant IP profits
357C
1
To determine the relevant IP profits of a trade of a company for an accounting period —
Step 1
Calculate the total gross income of the trade for the accounting period (see section 357CA).
Step 2
Calculate the percentage (“X%”) given by the following formula —
RIPI TI × 100
where —
“RIPI” is so much of the total gross income of the trade for the accounting period as is relevant IP income (see sections 357CC and 357CD), and
“TI” is the total gross income of the trade for the accounting period.
Step 3
Calculate X% of the profits of the trade for the accounting period.
If there are no such profits, calculate X% of the losses of the trade (expressed as a negative figure) for the accounting period.
In calculating the profits of the trade for the purposes of this step, make any adjustments required by section 357CG (and references in this step to the profits or losses of the trade are to be read subject to any such adjustments).
Step 4
Deduct from the amount given by Step 3 the routine return figure (see section 357CI).
The amount given by this step is the “qualifying residual profit”.
If the amount of the qualifying residual profit is not greater than nil, go to Step 7.
Step 5
If the company has elected for small claims treatment, calculate the small claims amount in relation to the trade (see section 357CM).
If the company has not, go to Step 6.
Step 6
Deduct from the qualifying residual profit the marketing assets return figure (see section 357CN).
Step 7
If the company has made an election under section 357CQ (which provides in certain circumstances for profits arising before the grant of a right to be treated as relevant IP profits), add to the amount given by Step 5 or 6 (or, if the amount of the qualifying residual profit was not greater than nil, Step 4) any amount determined in accordance with subsection (3) of that section.
2
If the amount given by subsection (1) is greater than nil, that amount is the relevant IP profits of the trade for the accounting period.
3
If the amount given by subsection (1) is less than nil, that amount is the relevant IP losses of the trade for the accounting period (see Chapter 5).
Total gross income of trade
Total gross income of a trade
357CA
1
For the purposes of this Part the “total gross income” of a trade of a company for an accounting period is the aggregate of the amounts falling within the Heads set out in —
a
subsection (3) (revenue),
b
subsection (5) (compensation),
c
subsection (6) (adjustments),
d
subsection (7) (proceeds from intangible fixed assets),
e
subsection (8) (profits from patent rights).
2
But the total gross income of the trade does not include any finance income (see section 357CB).
3
Head 1 is any amounts which —
a
in accordance with generally accepted accounting practice (“GAAP”) are recognised as revenue in the company’s profit and loss account or income statement for the accounting period, and
b
are brought into account as credits in calculating the profits of the trade for the accounting period.
4
Where the company does not draw up accounts for an accounting period in accordance with GAAP, the reference in subsection (3)(a) to any amounts which in accordance with GAAP are recognised as revenue in the company’s profit and loss account or income statement for the accounting period is to be read as a reference to any amounts which would be so recognised if the company had drawn up such accounts for that accounting period.
5
Head 2 is any amounts of damages, proceeds of insurance or other compensation (so far as not falling within Head 1) which are brought into account as credits in calculating the profits of the trade for the accounting period.
6
Head 3 is any amounts (so far as not falling within Head 1) which are brought into account as receipts under section 181 of CTA 2009 (adjustment on change of basis) in calculating the profits of the trade for the accounting period.
7
Head 4 is any amounts (so far as not falling within Head 1) which are brought into account as credits under Chapter 4 of Part 8 of CTA 2009 (realisation of intangible fixed assets) in calculating the profits of the trade for the accounting period.
8
Head 5 is any profits from the sale by the company of the whole or part of any patent rights held for the purposes of the trade which are taxed under section 912 of CTA 2009 in the accounting period.
Finance income
357CB
1
For the purposes of this Part “finance income”, in relation to a trade of a company, means —
a
any credits which are treated as receipts of the trade by virtue of —
i
section 297 of CTA 2009 (credits in respect of loan relationships), or
ii
section 573 of CTA 2009 (credits in respect of derivative contracts),
b
any amount which in accordance with generally accepted accounting practice falls to be recognised as arising from a financial asset, and
c
any return, in relation to an amount, which —
i
is produced for the company by an arrangement to which it is party, and
ii
is economically equivalent to interest.
2
In subsection (1) —
“economically equivalent to interest” is to be construed in accordance with section 486B(2) and (3) of CTA 2009, and
“financial asset” means a financial asset as defined for the purposes of generally accepted accounting practice.
3
For the purposes of subsection (1)(c), the amount of a return is the amount which by virtue of the return would, in calculating the company’s chargeable profits, be treated under section 486B of CTA 2009 (disguised interest to be regarded as profit from loan relationship) as a profit arising to the company from a loan relationship.
But, in calculating that profit for the purposes of this subsection, sections 486B(7) and 486C to 486E of that Act are to be ignored.
Relevant IP income
Relevant IP income
357CC
1
For the purposes of this Part “relevant IP income” means income falling within any of the Heads set out in —
a
subsection (2) (sales income),
b
subsection (6) (licence fees),
c
subsection (7) (proceeds of sale etc),
d
subsection (8) (damages for infringement),
e
subsection (9) (other compensation).
This is subject to section 357CE (excluded income).
2
Head 1 is income arising from the sale by the company of any of the following items —
a
items in respect of which a qualifying IP right held by the company has been granted (“qualifying items”);
b
items incorporating one or more qualifying items;
c
items that are wholly or mainly designed to be incorporated into items within paragraph (a) or (b).
3
For the purposes of this Part an item and its packaging are not to be treated as a single item, unless the packaging performs a function that is essential for the use of the item for the purposes for which it is intended to be used.
4
In subsection (3) “packaging”, in relation to an item, means any form of container or other packaging used for the containment, protection, handling, delivery or presentation of the item, including by way of attaching the item to, or winding the item round, some other article.
5
In a case where a qualifying item and an item that is designed to incorporate that item (“the parent item”) are sold together as, or as part of, a single unit for a single price, the reference in subsection (2)(b) to an item incorporating a qualifying item includes a reference to the parent item.
6
Head 2 is income consisting of any licence fee or royalty which the company receives under an agreement granting another person any of the following rights only —
a
a right in respect of any qualifying IP right held by the company,
b
any other right in respect of a qualifying item or process, and
c
in the case of an agreement granting any right within paragraph (a) or (b), a right granted for the same purposes as those for which that right was granted.
In this subsection “qualifying process” means a process in respect of which a qualifying IP right held by the company has been granted.
7
Head 3 is any income arising from the sale or other disposal of a qualifying IP right or an exclusive licence in respect of such a right.
8
Head 4 is any amount received by the company in respect of an infringement, or alleged infringement, of a qualifying IP right held by the company at the time of the infringement or alleged infringement.
9
Head 5 is any amount of damages, proceeds of insurance or other compensation, other than an amount in respect of an infringement or alleged infringement of a qualifying IP right, which is received by the company in respect of an event and —
a
is paid in respect of any items that fell within subsection (2) at the time of that event, or
b
represents a loss of income which would, if received by the company at the time of that event, have been relevant IP income.
10
But income is not relevant IP income by virtue of subsection (8) or (9) unless the event in respect of which the income is received, or any part of that event, occurred at a time when —
a
the company was a qualifying company, and
b
an election under section 357A had effect in relation to it.
11
In a case where the whole of that event does not occur at such a time, subsection (8) or (9) (as the case may be) applies only to so much of the amount received by the company in respect of the event as on a just and reasonable apportionment is properly attributable to such a time.
12
Any reference in this section to a qualifying IP right held by the company includes a reference to a qualifying IP right in respect of which the company holds an exclusive licence.
Notional royalty
357CD
1
This section applies where —
a
a company, for the purposes of any trade of the company, holds any rights mentioned in paragraph (a), (b) or (c) of section 357BB(1) (rights to which this Part applies) or an exclusive licence in respect of any such rights, and
b
the rights are relevant qualifying IP rights.
2
For the purposes of this section a qualifying IP right is a “relevant qualifying IP right” in relation to an accounting period if —
a
the total gross income of the trade of the company for the accounting period includes any income arising from things done by the company that involve the exploitation by the company of that right, and
b
that income is not relevant IP income or excluded income.
Such income is referred to in this section as “IP-derived income”.
3
The company may elect that the notional royalty in respect of the trade for the accounting period is to be treated for the purposes of this Part as if it were relevant IP income.
4
The notional royalty in respect of a trade of a company for an accounting period is the appropriate percentage of the IP-derived income for that accounting period.
5
The “appropriate percentage” is the proportion of any IP-derived income for an accounting period which the company would pay another person (“P”) for the right to exploit the relevant qualifying IP rights in that accounting period if the company were not otherwise able to exploit them.
6
For the purposes of determining the appropriate percentage under this section, assume that —
a
the company and P are dealing at arm’s length,
b
the company, or the company and persons authorised by it, will have the right to exploit the relevant qualifying IP rights to the exclusion of any other person (including P),
c
the company will have the same rights in relation to the relevant qualifying IP rights as it actually has,
d
the relevant qualifying IP rights are conferred on the relevant day,
e
the appropriate percentage for the accounting period is determined at the beginning of the accounting period,
f
the appropriate percentage for the accounting period will apply for each succeeding accounting period for which the company will have the right to exploit the relevant qualifying IP rights, and
g
no income other than IP-derived income will arise from anything done by the company that involves the exploitation by the company of the relevant qualifying IP rights.
7
In subsection (6)(d) “the relevant day”, in relation to a relevant qualifying IP right or a licence in respect of such a right, means —
a
the first day of the accounting period, or
b
if later, the day on which the company first began to hold the right or licence.
8
In determining the appropriate percentage, the company must act in accordance with —
a
Article 9 of the OECD Model Tax Convention, and
b
the OECD transfer pricing guidelines.
9
In this section “excluded income” means any income falling within any of the Heads in section 357CE.
Excluded income
357CE
1
For the purposes of this Part income falling within any of the Heads set out in the following subsections is not relevant IP income —
a
subsection (2) (ring fence income),
b
subsection (3) (income attributable to non-exclusive licences).
2
Head 1 is income arising from oil extraction activities or oil rights.
In this subsection “oil extraction activities” and “oil rights” have the same meaning as in Part 8 (see sections 272 and 273).
3
Head 2 is income which on a just and reasonable apportionment is properly attributable to a licence (a “non-exclusive licence”) held by the company which —
a
is a licence in respect of an item or process, but
b
is not an exclusive licence in respect of a qualifying IP right.
4
In a case where —
a
a company holds an exclusive licence in respect of a qualifying IP right, and
b
the licence also confers on the company (or on the company and persons authorised by it) any right in respect of the invention otherwise than to the exclusion of all other persons,
the licence is to be treated for the purposes of this Part as if it were two separate licences, one an exclusive licence that does not confer any such rights, and the other a non-exclusive licence conferring those rights.
Mixed sources of income
357CF
1
This section applies to any income that —
a
is mixed income, or
b
is paid under a mixed agreement.
2
“Mixed income” means the proceeds of sale in a case where an item falling within subsection (2) of section 357CC and an item not falling within that subsection are sold together as, or as part of, a single unit for a single price.
3
A “mixed agreement” is an agreement providing for —
a
one or more of the matters in paragraphs (a) to (c) of subsection (4), and
b
one or more of the matters in paragraphs (d) to (g) of that subsection.
4
The matters are —
a
the sale of an item falling within section 357CC(2),
b
the grant of any right falling within paragraph (a), (b) or (c) of section 357CC(6),
c
a sale or disposal falling within section 357CC(7),
d
the sale of any other item,
e
the grant of any other right,
f
any other sale or disposal,
g
the provision of any services.
5
So much of the income as on a just and reasonable apportionment is properly attributable to —
a
the sale of an item falling within section 357CC(2),
b
the grant of any right falling within paragraph (a), (b) or (c) of section 357CC(6), or
c
a sale or disposal falling within section 357CC(7),
is to be regarded for the purposes of this Part as relevant IP income.
6
But where the amount of income that on such an apportionment is properly attributable to any of the matters in paragraphs (d) to (g) of subsection (4) is a trivial proportion of the income to which this section applies, all of that income is to be regarded for the purposes of this Part as relevant IP income.
Calculating profits of trade
Adjustments in calculating profits of trade
357CG
1
This section applies for the purposes of determining the relevant IP profits of a trade of a company for an accounting period.
2
In calculating the profits of the trade for the accounting period —
a
there are to be added the amounts in subsection (3), and
b
there are to be deducted the amounts in subsection (4).
3
The amounts to be added are —
a
the amount of any debits which are treated as expenses of the trade by virtue of —
i
section 297 of CTA 2009 (debits in respect of loan relationships), or
ii
section 573 of CTA 2009 (debits in respect of derivative contracts), and
b
the amount of any additional deduction for the accounting period obtained by the company under Part 13 of CTA 2009 for expenditure on research and development in relation to the trade.
4
The amounts to be deducted are any amounts of finance income brought into account in calculating the profits of the trade for the accounting period.
(For the meaning of “finance income”, see section 357CB.)
5
In a case where there is a shortfall in R&D expenditure in relation to the trade for a relevant accounting period (see section 357CH), the amount of R&D expenditure brought into account in calculating the profits of the trade for that accounting period is to be increased by the amount mentioned in section 357CH(2).
6
For the purposes of subsection (5) —
“R&D expenditure” means expenditure on research and development in relation to the trade,
“relevant accounting period”, in relation to a company, means —
the first accounting period for which —
the company is a qualifying company, and
an election under section 357A has effect in relation to it, and
each accounting period that begins before the end of the period of 4 years beginning with that accounting period, and
“research and development” means activities, other than oil and gas exploration and appraisal, that fall to be treated as research and development in accordance with generally accepted accounting practice.
Shortfall in R&D expenditure
357CH
1
There is a shortfall in R&D expenditure in relation to a trade of a company for a relevant accounting period if the actual R&D expenditure of the trade for the accounting period (as adjusted under subsections (8) to (11)) is less than 75% of the average amount of R&D expenditure.
2
The amount that is to be added to the actual R&D expenditure for the purposes of section 357CG(5) is an amount equal to the difference between —
a
75% of the average amount of R&D expenditure, and
b
the actual R&D expenditure, as adjusted under subsections (8) to (11).
3
In this section —
a
the “actual R&D expenditure” of a trade of a company for an accounting period is the amount of R&D expenditure that (ignoring section 357CG(5)) is brought into account in calculating the profits of the trade for the accounting period, and
b
“R&D expenditure” and “relevant accounting period” have the meaning given by section 357CG(6).
4
The average amount of R&D expenditure is —
E N × 365
where —
E is the amount of R&D expenditure that —
has been incurred by the company during the relevant period, and
has been brought into account in calculating the profits of the trade for any accounting period ending before the first relevant accounting period, and
N is the number of days in the relevant period.
5
The relevant period is the shorter of —
a
the period of 4 years ending immediately before the first relevant accounting period, and
b
the period beginning with the day on which the company begins to carry on the trade and ending immediately before the first relevant accounting period.
6
For a relevant accounting period of less than 12 months, the average amount of R&D expenditure is proportionately reduced.
7
Subsections (8) to (11) apply for the purposes of determining —
a
whether there is a shortfall in R&D expenditure for a relevant accounting period, and
b
if there is such a shortfall, the amount to be added by virtue of subsection (2).
8
If the amount of the actual R&D expenditure for a relevant accounting period is greater than the average amount of R&D expenditure, the difference between the two amounts is to be added to the actual R&D expenditure for the next relevant accounting period.
9
If —
a
there is not a shortfall in R&D expenditure for a relevant accounting period, but
b
in the absence of any additional amount, there would be a shortfall in R&D expenditure for that accounting period,
the remaining portion of the additional amount is to be added to the actual R&D expenditure for the next relevant accounting period.
10
For the purposes of this section —
“additional amount”, in relation to a relevant accounting period, means any amount added to the actual R&D expenditure for that accounting period by virtue of subsection (8), (9) or (11), and
“the remaining portion” of an additional amount is so much of that amount as exceeds the difference between —
the actual R&D expenditure for the relevant accounting period in the absence of the additional amount, and
75% of the average amount of R&D expenditure.
11
If —
a
there is not a shortfall in R&D expenditure for a relevant accounting period, and
b
there would not be a shortfall in R&D expenditure for that accounting period in the absence of any additional amount,
the additional amount is to be added to the actual R&D expenditure for the next relevant accounting period (in addition to any additional amount so added by virtue of subsection (8)).
Routine return figure
Routine return figure
357CI
1
To determine the routine return figure in relation to a trade of a company for an accounting period —
Step 1
Take the aggregate of any routine deductions made by the company in calculating the profits of the trade for the accounting period.
For the meaning of “routine deductions”, see sections 357CJ and 357CK.
Step 2
Multiply that amount by 0.1.
Step 3
Calculate X% of the amount given by Step 2.
“X%” is the percentage given by Step 2 in section 357C(1).
2
In a case where —
a
the company (“C”) is a member of a group,
b
another member of the group incurs expenses on behalf of C,
c
had they been incurred by C, C would have made a deduction in respect of the expenses in calculating the profits of the trade for the accounting period, and
d
the deduction would have been a routine deduction,
C is to be treated for the purposes of subsection (1) as having made such a routine deduction.
3
Where expenses are incurred by any member of the group on behalf of C and any other member of the group, subsection (2) applies in relation to so much of the amount of the expenses as on a just and reasonable apportionment may properly be regarded as incurred on behalf of C.
Routine deductions
357CJ
1
For the purposes of section 357CI “routine deductions” means deductions falling within any of the Heads set out in —
a
subsection (2) (capital allowances),
b
subsection (3) (costs of premises),
c
subsection (4) (personnel costs),
d
subsection (5) (plant and machinery costs),
e
subsection (6) (professional services),
f
subsection (7) (miscellaneous services).
This is subject to section 357CK (deductions that are not routine deductions).
2
Head 1 is any allowances under CAA 2001.
3
Head 2 is any deductions made by the company in respect of any premises occupied by the company.
4
Head 3 is any deductions made by the company in respect of —
a
any director or employee of the company, or
b
any externally provided workers.
5
Head 4 is any deductions made by the company in respect of any plant or machinery used by the company.
6
Head 5 is any deductions made by the company in respect of any of the following services —
a
legal services, other than IP-related services;
b
financial services, including —
i
insurance services, and
ii
valuation or actuarial services;
c
services provided in connection with the administration or management of the company’s directors and employees;
d
any other consultancy services.
7
Head 6 is any deductions made by the company in respect of any of the following services —
a
the supply of water, fuel or power;
b
telecommunications services;
c
computing services, including computer software;
d
postal services;
e
the transportation of any items;
f
the collection, removal and disposal of refuse.
8
In this section —
“externally provided worker” has the same meaning as in Part 13 of CTA 2009 (see section 1128 of that Act),
“IP-related services” means services provided in connection with —
any application for a right to which this Part applies, or
any proceedings relating to the enforcement of any such right,
“premises” includes any land,
“telecommunications service” means any service that consists in the provision of access to, and of facilities for making use of, any telecommunication system (whether or not one provided by the person providing the service), and
“telecommunication system” means any system (including the apparatus comprised in it) which exists for the purpose of facilitating the transmission of communications by any means involving the use of electrical or electro-magnetic energy.
9
The Treasury may by order amend this section.
Deductions that are not routine deductions
357CK
1
For the purposes of section 357CI a deduction is not a “routine deduction” if it falls within any of the Heads set out in —
a
subsection (2) (loan relationships and derivative contracts),
b
subsection (3) (R&D expenses),
c
subsection (4) (capital allowances for R&D or patents),
d
subsection (5) (R&D-related employee share acquisitions).
2
Head 1 is any debits which are treated as expenses of the trade by virtue of —
a
section 297 of CTA 2009 (debits in respect of loan relationships), or
b
section 573 of CTA 2009 (debits in respect of derivative contracts).
3
Head 2 is —
a
the amount of any expenditure on research and development in relation to the trade for which an additional deduction for the accounting period is obtained by the company under Part 13 of CTA 2009, and
b
the amount of that additional deduction.
4
Head 3 is any allowances under —
a
Part 6 of CAA 2001 (research and development allowances), or
b
Part 8 of CAA 2001 (patent allowances).
5
Head 4 is the appropriate proportion of any deductions allowed under Part 12 of CTA 2009 (relief for employee share acquisitions) in a case where —
a
shares are acquired by an employee or another person because of the employee’s employment by the company, and
b
the employee is wholly or partly engaged directly and actively in relevant research and development (within the meaning of section 1042 of CTA 2009).
6
In subsection (5) “the appropriate proportion”, in relation to a deduction allowed in respect of an employee, is the proportion of the staffing costs in respect of the employee which are attributable to relevant research and development for the purposes of Part 13 of CTA 2009 (see section 1124 of that Act).
“Staffing costs” has the same meaning as in that Part (see section 1123 of that Act).
7
Subsections (5) and (6) of section 1124 of CTA 2009 apply for the purposes of subsection (5)(b) as they apply for the purposes of that section.
8
The Treasury may by order amend this section.
Election for small claims treatment
Companies eligible to elect for small claims treatment
357CL
1
A company may elect for small claims treatment for an accounting period if condition A or B is met in relation to the accounting period.
2
Condition A is that the aggregate of the amounts of qualifying residual profit of each trade of the company for the accounting period does not exceed £1,000,000.
3
Condition B is that —
a
the aggregate of the amounts of qualifying residual profit of each trade of the company for the accounting period does not exceed the relevant maximum, and
b
the company did not take Step 6 in section 357C(1) or 357DA(1) for the purpose of calculating the relevant IP profits of any trade of the company for any previous accounting period beginning within the relevant 4-year period.
4
In subsection (3)(b) “the relevant 4-year period” means the period of 4 years ending immediately before the accounting period mentioned in subsection (3)(a).
5
If the company has no associated company in the accounting period, the relevant maximum is £3,000,000.
6
If the company has one or more associated companies in the accounting period, the relevant maximum is —
£ 3,000,000 1 + N
where N is the number of those associated companies in relation to which an election under section 357A has effect for the accounting period.
7
For an accounting period of less than 12 months, the relevant maximum is proportionately reduced.
8
Any amount of qualifying residual profit of a trade of the company that is not greater than nil is to be disregarded for the purposes of this section.
9
Sections 25 to 30 (definition of “associated companies”) have effect for the purposes of this section.
Small claims amount
357CM
1
This section applies where a company elects for small claims treatment for an accounting period.
2
The small claims amount in relation to each trade of the company for the accounting period is —
a
if the amount in subsection (3) is lower than the small claims threshold, 75% of the qualifying residual profit of the trade for the accounting period;
b
in any other case, the amount given by —
SCT T
where —
SCT is the small claims threshold, and
T is the number of trades of the company.
3
The amount referred to in subsection (2)(a) is —
0.75 × Q R P
where QRP is the aggregate of the amounts of qualifying residual profit of each trade of the company for the accounting period (but see subsection (4)).
4
Any amount of qualifying residual profit of a trade of the company that is not greater than nil is to be disregarded for the purposes of subsection (3).
5
If the company has no associated company in the accounting period, the small claims threshold is £1,000,000.
6
If the company has one or more associated companies in the accounting period, the small claims threshold is —
£ 1,000,000 1 + N
where N is the number of those associated companies in relation to which an election under section 357A has effect for the accounting period.
7
For an accounting period of less than 12 months, the small claims threshold is proportionately reduced.
8
Sections 25 to 30 (definition of “associated companies”) have effect for the purposes of this section.
Marketing assets return figure
Marketing assets return figure
357CN
1
The marketing assets return figure in relation to a trade of a company for an accounting period is —
NMR − AMR
where —
NMR is the notional marketing royalty in respect of the trade for the accounting period (see section 357CO), and
AMR is the actual marketing royalty in respect of the trade for the accounting period (see section 357CP).
2
Where —
a
AMR is greater than NMR, or
b
the difference between NMR and AMR is less than 10% of the qualifying residual profit of the trade for the accounting period,
the marketing assets return figure is nil.
Notional marketing royalty
357CO
1
The notional marketing royalty in respect of a trade of a company for an accounting period is the appropriate percentage of the relevant IP income for that accounting period.
In this section “relevant IP income”, in relation to a trade of a company for an accounting period, means so much of the total gross income of the trade for the accounting period as is relevant IP income.
2
The “appropriate percentage” is the proportion of any relevant IP income for an accounting period which the company would pay another person (“P”) for the right to exploit the relevant marketing assets in that accounting period if the company were not otherwise able to exploit them.
3
For the purposes of this section a marketing asset is a “relevant marketing asset” in relation to an accounting period if the relevant IP income of the trade of the company for the accounting period includes any income arising from things done by the company that involve the exploitation by the company of that marketing asset.
4
For the purposes of determining the appropriate percentage under this section, assume that —
a
the company and P are dealing at arm’s length,
b
the company, or the company and persons authorised by it, will have the right to exploit the relevant marketing assets to the exclusion of any other person (including P),
c
the company will have the same rights in relation to the relevant marketing assets as it actually has,
d
the right to exploit the relevant marketing assets is conferred on the relevant day,
e
the appropriate percentage for the accounting period is determined at the beginning of the accounting period,
f
the appropriate percentage for the accounting period will apply for each succeeding accounting period for which the company will have the right to exploit the relevant marketing assets, and
g
no income other than relevant IP income will arise from anything done by the company that involves the exploitation by the company of the relevant marketing assets.
5
In subsection (4)(d) “the relevant day”, in relation to a relevant marketing asset, means —
a
the first day of the accounting period, or
b
if later, the day on which the company first acquired the relevant marketing asset or the right to exploit the asset.
6
In determining the appropriate percentage, the company must act in accordance with —
a
Article 9 of the OECD Model Tax Convention, and
b
the OECD transfer pricing guidelines.
7
In this section “marketing asset” means any of the following (whether or not capable of being transferred or assigned) —
a
anything in respect of which proceedings for passing off could be brought, including a registered trade mark (within the meaning of the Trade Marks Act 1994),
b
anything that corresponds to a marketing asset within paragraph (a) and is recognised under the law of a country or territory outside the United Kingdom,
c
any signs or indications (so far as not falling within paragraph (a) or (b)) which may serve, in trade, to designate the geographical origin of goods or services, and
d
any information which relates to customers or potential customers of the company, or any other member of a group of which the company is a member, and is intended to be used for marketing purposes.
Actual marketing royalty
357CP
1
The actual marketing royalty in respect of a trade of a company for an accounting period is X% of the aggregate of any sums which —
a
were paid by the company for the purposes of acquiring any relevant marketing assets, or the right to exploit any such assets, and
b
were brought into account as debits in calculating the profits of the trade for the accounting period.
2
In this section —
“relevant marketing assets” has the same meaning as in section 357CO, and
“X%” is the percentage given by Step 2 in section 357C(1).
Profits arising before grant of right
Profits arising before grant of right
357CQ
1
This section applies where a company —
a
holds a right mentioned in paragraph (a), (b) or (c) of section 357BB(1) (rights to which this Part applies) or an exclusive licence in respect of such a right, or
b
would hold such a right or licence but for the fact that the company disposed of any rights in the invention or (as the case may be) the licence before the right was granted.
2
The company may elect that, for the purposes of determining the relevant IP profits of a trade of the company for the accounting period in which the right is granted, there is to be added the amount determined in accordance with subsection (3) (the “additional amount”).
3
The additional amount is the difference between —
a
the aggregate of the relevant IP profits of the trade for each relevant accounting period, and
b
the aggregate of what the relevant IP profits of the trade for each relevant accounting period would have been if the right had been granted on the relevant day.
4
For the purposes of determining the additional amount, the amount of any relevant IP profits to which section 357A does not apply by virtue of Chapter 5 (relevant IP losses) is to be disregarded.
5
In this section “relevant accounting period” means —
a
the accounting period of the company in which the right is granted, and
b
any earlier accounting period of the company which meets the conditions in subsection (6).
6
The conditions mentioned in subsection (5)(b) are —
a
that it is an accounting period for which an election made by the company under section 357A has effect,
b
that it is an accounting period for which the company is a qualifying company, and
c
that it ends on or after the relevant day.
7
In this section “the relevant day” is the later of —
a
the first day of the period of 6 years ending with the day on which the right is granted, or
b
the day on which —
i
the application for the grant of the right was filed, or
ii
in the case of a company that holds an exclusive licence in respect of the right, the licence was granted.
8
Where the company would be a qualifying company for an accounting period but for the fact that the right had not been granted at any time during that accounting period, the company is to be treated for the purposes of this section as if it were a qualifying company for that accounting period.
9
Where the company would be a qualifying company for the accounting period in which the right was granted but for the fact that the company disposed of the rights or licence mentioned in subsection (1)(b) before the right was granted, the company is to be treated for the purposes of section 357A as if it were a qualifying company for that accounting period.
CHAPTER 4
Streaming
Alternative method of calculating relevant IP profits: “streaming”
357D
1
A company may elect to apply section 357DA (instead of section 357C) for the purposes of determining the relevant IP profits of any trade of the company for an accounting period.
2
An election made under subsection (1) is known as a “streaming election”.
3
A streaming election has effect —
a
for the accounting period for which it is made, and
b
for each subsequent accounting period.
This is subject to section 357DB.
4
If any of the mandatory streaming conditions in section 357DC is met in relation to a trade of a company for an accounting period, the company must apply section 357DA (instead of section 357C) for the purposes of determining the relevant IP profits of the trade for that accounting period.
Relevant IP profits
357DA
1
To determine the relevant IP profits of a trade of a company for an accounting period in accordance with this section —
Step 1
Take any amounts which are brought into account as credits in calculating the profits of the trade for the accounting period, other than any amounts of finance income (see section 357CB), and divide them into two “streams”, amounts of relevant IP income (see sections 357CC and 357CD) and amounts that are not amounts of relevant IP income.
The stream consisting of relevant IP income is “the relevant IP income stream”.
Step 2
Take any amounts which are brought into account as debits in calculating the profits of the trade for the accounting period, other than any amounts referred to in section 357CG(3), and allocate them on a just and reasonable basis between the two streams.
(See also section 357CG(5).)
Step 3
Deduct from the relevant IP income stream the amounts allocated to that stream under Step 2.
Step 4
Deduct from the amount given by Step 3 the routine return figure (see subsection (4)).
The amount given by this step is the “qualifying residual profit”.
If the amount of the qualifying residual profit is not greater than nil, go to Step 7.
Step 5
If the company has elected for small claims treatment, calculate the small claims amount in relation to the trade (see section 357CM).
If the company has not, go to Step 6.
Step 6
Deduct from the qualifying residual profit the marketing assets return figure (see section 357CN and subsection (6)).
Step 7
If the company has made an election under section 357CQ (which provides in certain circumstances for profits arising before the grant of a right to be treated as relevant IP profits), add to the amount given by Step 5 or 6 (or, if the amount of the qualifying residual profit was not greater than nil, Step 4) any amount determined in accordance with subsection (3) of that section.
2
If the amount given by subsection (1) is greater than nil, that amount is the relevant IP profits of the trade for the accounting period.
3
If the amount given by subsection (1) is less than nil, that amount is the relevant IP losses of the trade for the accounting period (see Chapter 5).
4
The routine return figure, in relation to a trade of a company for an accounting period, is 10% of the aggregate of any routine deductions which —
a
have been made by the company in calculating the profits of the trade for the accounting period, and
b
have been allocated to the relevant IP income stream under Step 2.
In this subsection “routine deductions” is to be read in accordance with sections 357CJ and 357CK.
5
Subsections (2) and (3) of section 357CI have effect for the purposes of subsection (4) of this section as they have effect for the purposes of that section.
6
For the purposes of determining the marketing assets return figure in Step 6, section 357CP (actual marketing royalty) has effect as if the reference to X% of the aggregate of any sums falling within subsection (1) of that section were a reference to the aggregate of any such sums which have been allocated to the relevant IP income stream under Step 2.
Method of allocation
357DB
1
In this section “method of allocation” means the method of allocating, for the purposes of Step 2 in section 357DA(1), the amounts mentioned in that step.
2
A company that applies section 357DA for the purposes of determining the relevant IP profits of a trade of the company for an accounting period must use the same method of allocation in relation to the trade for that accounting period as it used in the last accounting period of the company for which it applied that section for the purposes of determining the relevant IP profits of the trade.
3
But subsection (2) does not apply if there is a change of circumstances relating to the trade which makes the use of that method of allocation in relation to the trade for the accounting period inappropriate.
4
In such a case, the company may —
a
use a different method of allocation in relation to the trade for the accounting period (and subsection (2) applies accordingly for subsequent accounting periods), or
b
elect not to apply section 357DA for the purposes of determining the relevant IP profits of the trade for the accounting period.
5
Subsection (4)(b) does not prevent the company making a fresh streaming election in relation to the trade for any subsequent accounting period.
The mandatory streaming conditions
357DC
1
Mandatory streaming condition A is met in relation to a trade of a company for an accounting period if —
a
any amount brought into account as a credit in calculating the profits of the trade for the accounting period is not fully recognised as revenue for the accounting period, and
b
the amount, or the aggregate of any such amounts, is substantial.
2
An amount is a “substantial” amount for the purposes of this section if it is greater than —
a
£2,000,000, or
b
20% of the total gross income of the trade for the accounting period,
whichever is the lower.
3
But an amount is not a substantial amount for the purposes of this section if it does not exceed £50,000.
4
The reference in subsection (1)(a) to an amount brought into account as a credit includes a reference to any amount brought into account by virtue of section 147 of TIOPA 2010 (basic transfer-pricing rule).
5
Mandatory streaming condition B is met in relation to a trade of a company for an accounting period if the total gross income of the trade for the accounting period includes —
a
relevant IP income, and
b
a substantial amount of licensing income that is not relevant IP income.
6
In subsection (5) “licensing income” means income consisting of any licence fee, royalty or other payment which the company has received under an agreement granting another person any right in respect of any intellectual property held by the company.
“Intellectual property” has the meaning given by section 712(3) of CTA 2009.
7
Mandatory streaming condition C is met in relation to a trade of a company for an accounting period if the total gross income of the trade for the accounting period includes —
a
income that is not relevant IP income, and
b
a substantial amount of relevant Head 2 income.
8
Income is “relevant Head 2 income” for the purposes of subsection (7) if —
a
it is relevant IP income received under an agreement falling within subsection (6) of section 357CC, and
b
every qualifying IP right —
i
in respect of which a right within paragraph (a) of that subsection is granted by the agreement, or
ii
which is granted in respect of an invention in respect of which a right within paragraph (b) of that subsection is granted by the agreement,
is a right in respect of which the company holds an exclusive licence.
9
In a case where —
a
relevant IP income is received under an agreement falling within section 357CC(6), but
b
the condition in paragraph (b) of subsection (8) above is not met,
so much of the relevant IP income as on a just and reasonable apportionment is attributable to any qualifying IP right falling within that paragraph is relevant Head 2 income for the purposes of subsection (7).
CHAPTER 5
Relevant IP losses
Company with relevant IP losses: set-off amount
357E
Where a company would be entitled to make a deduction under section 357A(2) in calculating the profits of a trade of the company for an accounting period but for the fact that there are relevant IP losses of the trade for the accounting period, there is a “set-off amount” in relation to the trade of the company for the accounting period which is equal to the amount of the relevant IP losses.
Effect of set-off amount on company with more than one trade
357EA
1
This section applies where —
a
there is a set-off amount in relation to a trade of a company for an accounting period, and
b
the company carries on any other trade.
2
The set-off amount is to be reduced (but not to below nil) by any relevant IP profits of that other trade for the accounting period.
3
Section 357A does not apply in relation to so much of the amount of relevant IP profits of that other trade for the accounting period as is equal to the amount by which the set-off amount is reduced under subsection (2).
Allocation of set-off amount within a group
357EB
1
This section applies where —
a
there is a set-off amount in relation to a trade of a company for an accounting period,
b
the company is a member of a group, and
c
the set-off amount has not been reduced to nil by the operation of section 357EA(2).
2
The set-off amount (or so much of it as remains after the operation of section 357EA(2)) is to be reduced (but not to below nil) by any relevant IP profits of a trade of a relevant group member for the relevant accounting period.
3
For the purposes of this section —
a
“relevant group member” means another member of the group that has made an election under section 357A and is a qualifying company for the relevant accounting period, and
b
“relevant accounting period”, in relation to a company, means the accounting period of the company in or at the end of which the accounting period mentioned in subsection (1)(a) ends.
4
Section 357A does not apply in relation to so much of the amount of relevant IP profits of the trade of the relevant group member for the relevant accounting period as is equal to the amount by which the set-off amount (or so much of it as remains after the operation of section 357EA(2)) is reduced under subsection (2).
5
Where there is more than one relevant group member, the relevant group members may jointly determine the order in which subsection (2) is to apply to them.
6
If no determination is made under subsection (5), subsection (2) is to apply first to the trade that has the greatest amount of relevant IP profits of any trade of any of the relevant group members for a relevant accounting period, then to the trade that has the second greatest amount of relevant IP profits of any of those trades for such a period, and so on.
Carry-forward of set-off amount
357EC
1
This section applies where —
a
there is a set-off amount in relation to a trade of a company for an accounting period, and
b
the set-off amount has not been reduced to nil by the operation of section 357EA(2) or 357EB(2).
2
The set-off amount (or so much of it as remains after the operation of section 357EA(2) or 357EB(2)) is to be reduced (but not to below nil) by the amount of any relevant IP profits of the trade of the company for the current accounting period.
The “current accounting period” is the accounting period immediately following the accounting period mentioned in subsection (1)(a).
3
Section 357A does not apply in relation to so much of the amount of relevant IP profits of the trade of the company for the current accounting period as is equal to the amount by which the set-off amount (or so much of it as remains after the operation of section 357EA(2) or 357EB(2)) is reduced under subsection (2).
4
If any portion of the set-off amount remains after the operation of subsection (2), that portion (“the remaining portion”) is to be treated as the set-off amount in relation to the trade of the company for the current accounting period (and the provisions of this Chapter apply accordingly).
5
If there are relevant IP losses of the trade of the company for the current accounting period, the set-off amount in relation to the trade of the company for that accounting period is the aggregate of the remaining portion and an amount equal to the amount of those relevant IP losses (and the provisions of this Chapter apply accordingly).
Company ceasing to carry on trade, etc
357ED
1
This section applies where —
a
there is a set-off amount in relation to a trade of a company for an accounting period, and
b
at any time in the accounting period immediately following that accounting period, the company meets any of the conditions in subsection (2).
2
The conditions are —
a
that the company ceases to carry on the trade,
b
that the company ceases to be within the charge to corporation tax in respect of the trade, or
c
that any election made by the company under section 357A ceases to have effect.
3
Sections 357EA to 357EC continue to have effect in relation to the set-off amount subject to the following provisions of this section.
4
Section 357EB has effect as if —
a
the reference in subsection (1)(b) to the company being a member of a group were a reference to the company having been a member of the group at the time referred to in subsection (1)(b) of this section,
b
for subsection (2) there were substituted —
2
The set-off amount (or so much of it as remains after the operation of section 357EA(2)) is to become, or be added to, the set-off amount in relation to a trade of a relevant group member for the relevant accounting period.
,
c
subsection (4) were omitted,
d
for the words after “determine” in subsection (5) there were substituted “the relevant group member to which subsection (2) is to apply”, and
e
for subsection (6) there were substituted —
6
If no determination is made under subsection (5), subsection (2) is to apply to the trade that has the greatest amount of relevant IP profits of any trade of any of the relevant group members for a relevant accounting period.
7
If there is no relevant group member with any relevant IP profits of a trade for the relevant accounting period, subsection (2) is to apply to the trade that has the greatest set-off amount in relation to any trade of any of the relevant group members for a relevant accounting period.
5
Sections 357EA to 357EC cease to have effect in relation to the set-off amount in relation to the trade of the company for an accounting period if —
a
the company is not carrying on any other trade in that accounting period, and
b
in the case of a company that was a member of a group at the time referred to in subsection (1)(b) of this section, none of the members of the group is a relevant group member (within the meaning of section 357EB).
6
In such a case, the set-off amount (so far as remaining after the operation of those sections) is to be reduced to nil.
Transfer of a trade between group members
357EE
1
This section applies where —
a
there is a set-off amount in relation to a trade of a company for an accounting period,
b
the company is a member of a group,
c
the company ceases to carry on the trade, and
d
another company (“the transferee”) that is a member of the group begins to carry on that trade.
2
For the purposes of this Chapter an amount equal to the set-off amount is to become, or be added to, the set-off amount in relation to the trade of the transferee for the accounting period in which the transferee begins to carry on the trade.
Payments between group members in consequence of section 357EB
357EF
1
This section applies if —
a
there is a set-off amount in relation to a trade of a company for an accounting period,
b
subsection (2) of section 357EB has effect in relation to a relevant group member for the relevant accounting period (within the meaning of that section),
c
the company and the relevant group member have an agreement between them in relation to the relevant IP losses of the company, and
d
as a result of the agreement the company makes a payment to the relevant group member that does not exceed the reduction in the relevant IP profits of the relevant group member arising under section 357EB(4).
2
The payment —
a
is not to be taken into account in determining the profits or losses of either company for corporation tax purposes, and
b
is not for any purposes of the Corporation Tax Acts to be regarded as a distribution.
3
In a case where section 357ED applies (company ceasing to carry on trade, etc), the reference in subsection (1)(d) to the reduction in the relevant IP profits of the relevant group member is to be read as a reference to the amount that becomes, or is added to, the set-off amount in relation to a trade of the relevant group member for the relevant accounting period under section 357EB(2).
CHAPTER 6
Anti-avoidance
Licences conferring exclusive rights
Licences conferring exclusive rights
357F
A licence that confers any right in respect of a qualifying IP right to the exclusion of all other persons is not to be regarded as an exclusive licence if the main purpose, or one of the main purposes, of conferring the right is to secure that the licence is an exclusive licence for the purposes of this Part.
Incorporation of qualifying items
Incorporation of qualifying items
357FA
1
Income arising from the sale of any item that incorporates a qualifying item is not relevant IP income if the main purpose, or one of the main purposes, of incorporating the qualifying item is to secure that income arising from any such sale is relevant IP income.
2
“Qualifying item” has the same meaning as in section 357CC(2).
Tax advantage schemes
Tax advantage schemes
357FB
1
This section applies where —
a
a company is entitled to make a deduction under section 357A(2) in calculating the profits of a trade of the company for an accounting period,
b
the company is or has at any time been a party to a scheme, and
c
the main purpose, or one of the main purposes, of the company or, where the company is a member of a group, any member of the group in being a party to the scheme is (or was) to obtain the chance of securing a relevant tax advantage.
2
There is a “relevant tax advantage” for the purposes of this section if —
a
(apart from this section) there would be an increase in the amount of any deduction made under section 357A(2) in calculating the profits of a trade of the company or (as the case may be) any other member of the group for any accounting period, and
b
the increase would arise from —
i
the avoidance of the operation of any provision of this Part,
ii
artificially inflating the amount of relevant IP income brought into account in calculating those profits (see subsection (3)), or
iii
a mismatch between relevant IP income and expenditure (see subsection (4)).
3
The reference in subsection (2)(b) to artificially inflating the amount of relevant IP income brought into account in calculating the profits mentioned in subsection (2)(a) is a reference to doing any of the following —
a
bringing into account in calculating those profits an amount of relevant IP income that wholly or substantially corresponds to an increase in the amounts brought into account as debits in calculating those profits;
b
bringing into account in calculating those profits an additional amount of relevant IP income that wholly or substantially corresponds to a decrease in the amount of income that is not relevant IP income which is brought into account in calculating those profits.
4
For the purposes of this section there is a mismatch between relevant IP income and expenditure if —
a
any relevant IP income brought into account in calculating the profits mentioned in subsection (2)(a) is attributable to any qualifying IP right or an exclusive licence in respect of any such right, and
b
any expenditure incurred in relation to that right is brought into account in calculating the profits of a trade of the company or (as the case may be) any other member of the group for an accounting period for which an election under section 357A did not have effect.
5
The amount of the deduction which may be made by the company for the accounting period mentioned in subsection (1)(a) is the amount that would secure that no relevant tax advantage arises (and may be nil).
6
In this section “scheme” includes any scheme, arrangements or understanding of any kind whatever, whether or not legally enforceable, involving a single transaction or two or more transactions.
CHAPTER 7
Supplementary
Elections under section 357A
Making of election under section 357A
357G
1
An election made by a company under section 357A is made by giving notice to an officer of Revenue and Customs.
2
The notice must specify the first accounting period of the company for which the election is to have effect.
3
The notice must be given on or before the last day on which an amendment of the company’s tax return for that accounting period could be made under paragraph 15 of Schedule 18 to FA 1998.
4
The election has effect in relation to each trade carried on by the company.
5
Subject to section 357GA, the election has effect for the accounting period specified in the notice and all subsequent accounting periods of the company.
Revocation of election made under section 357A
357GA
1
A company may revoke an election made by it under section 357A by giving notice to an officer of Revenue and Customs.
2
The notice must specify the first accounting period of the company for which the revocation is to have effect.
3
The notice must be given on or before the last day on which an amendment of the company’s tax return for that accounting period could be made under paragraph 15 of Schedule 18 to FA 1998.
4
The revocation has effect in relation to the accounting period specified in the notice and all subsequent accounting periods of the company.
5
An election made under section 357A by a company that has given notice under this section does not have effect in relation to any accounting period of the company that begins before the end of the period of 5 years beginning with the day after the last day of the accounting period specified in the notice.
Partnerships
Application of this Part in relation to partnerships
357GB
1
This section applies if a firm (within the meaning of CTA 2009) carries on a trade and any partner in the firm is a company within the charge to corporation tax.
Such a partner is referred to in this section as a “corporate partner”.
2
Subject to the following provisions of this section, this Part applies in relation to the firm as it applies in relation to a company.
3
Any election under this Part —
a
may be made or revoked not by the firm but instead by any one or more of the corporate partners (whether jointly or otherwise), and
b
has effect in relation to each corporate partner making or revoking it as if made or revoked by the firm.
4
Accordingly, any reference in section 357G(3) or 357GA(3) (time limit for making or revoking elections under section 357A) to the company making or revoking the election is to be read as a reference to the corporate partner so doing.
5
Section 1261 of CTA 2009 (accounting periods of firms) applies for the purposes of this Part as it applies for the purposes of Part 17 of that Act.
6
Section 357B (meaning of “qualifying company”) has effect as if in subsection (1) the words “in the case of a company that is a member of a group” were omitted.
7
For the purposes of this Part the firm meets the development condition in relation to a right to which this Part applies if —
a
the firm has at any time carried out qualifying development in relation to the right, or
b
there is a relevant corporate partner in the firm who meets the development condition in relation to the right.
8
A “relevant corporate partner” is a corporate partner who is entitled to a share of at least 40% of the profits or losses of the firm for any accounting period of the firm.
9
Section 357BD applies for the purposes of subsection (7)(a) of this section as it applies for the purposes of section 357BC.
10
Section 357BE (active ownership condition) has effect as if the reference in subsection (4) to section 357BC(2) or (3) included a reference to subsection (7)(a) of this section.
11
Sections 357CL and 357CM (election for small claims treatment) have effect as if —
a
any reference to a company having one or more associated companies were a reference to any corporate partner in relation to which an election under section 357CL has effect having one or more associated companies, and
b
any reference to a company having no associated company were a reference to each such corporate partner having no associated company.
12
Subsection (13) applies where a corporate partner is a party to an arrangement at any time during an accounting period of the firm which produces for the corporate partner a return within section 357CB(1)(c).
13
For the accounting period of the firm the corporate partner’s share of a profit or loss of a trade carried on by the firm is determined for corporation tax purposes as if no election under section 357A had effect in relation to the trade.
Cost-sharing arrangements
Application of this Part in relation to cost-sharing arrangements
357GC
1
This section applies where a company is a party to an arrangement under which —
a
one of the parties to the arrangement holds a qualifying IP right or an exclusive licence in respect of such a right,
b
each of the parties to the arrangement is required to contribute to the cost of, or perform activities for the purpose of, creating or developing the invention or any item or process incorporating the invention,
c
under the arrangement each of those parties —
i
is entitled to a share of any income attributable to the right or licence, or
ii
has one or more rights in respect of the invention, and
d
the amount of any income received by each of those parties is proportionate to its participation in the arrangement as described in paragraph (b).
2
The company is to be treated for the purposes of this Part as if it held the qualifying IP right or (as the case may be) the exclusive licence in respect of the qualifying IP right.
3
But this section does not apply where the arrangement produces for the company a return within section 357CB(1)(c).
4
The reference in subsection (1)(b) to developing the invention includes developing ways in which the invention may be used or applied.
Interpretation
Meaning of “group”
357GD
1
For the purposes of this Part a company (“company A”) is a member of a group at any time if any other company is at that time associated with company A.
2
The group consists of company A and each company in relation to which the condition in subsection (1) is met.
3
For the purposes of this section a company (“company B”) is associated with company A at a time (“the relevant time”) if any of the following five conditions is met.
4
The first condition is that the financial results of company A and company B, for a period that includes the relevant time, meet the consolidation condition.
5
The second condition is that there is a connection between company A and company B for the accounting period of company A in which the relevant time falls.
6
The third condition is that, at the relevant time, company A has a major interest in company B or company B has a major interest in company A.
7
The fourth condition is that —
a
the financial results of company A and a third company, for a period that includes the relevant time, meet the consolidation condition, and
b
at the relevant time the third company has a major interest in company B.
8
The fifth condition is that —
a
there is a connection between company A and a third company for the accounting period of company A in which the relevant time falls, and
b
at the relevant time the third company has a major interest in company B.
9
In this section, the financial results of any two companies for any period meet “the consolidation condition” if —
a
they are required to be fully comprised in group accounts,
b
they would be required to be fully comprised in such accounts but for the application of an exemption, or
c
they are in fact fully comprised in such accounts.
10
In subsection (9) “group accounts” means accounts prepared under —
a
section 399 of the Companies Act 2006, or
b
any corresponding provision of the law of a country or territory outside the United Kingdom.
11
The following provisions apply for the purposes of this section —
sections 466 to 471 of CTA 2009 (companies connected for accounting period), and
sections 473 and 474 of CTA 2009 (meaning of “major interest”).
Other interpretation
357GE
1
In this Part —
“invention”, in relation to a right to which this Part applies, means the item or process in respect of which the right is granted,
“item” includes any substance,
“the OECD Model Tax Convention” means —
the version of the Model Tax Convention on Income and on Capital published in July 2010 by the Organisation for Economic Co-operation and Development (“the OECD”), or
such other document approved and published by the OECD in place of that (or a later) version or in place of that Convention as is designated for the time being by order made by the Treasury,
“the OECD transfer pricing guidelines” means —
the version of the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations published in July 2010 by the OECD, or
such other document approved and published by the OECD in place of that (or a later) version or in place of those Guidelines as is designated for the time being by order made by the Treasury,
including, in either case, such material published by the OECD as part of (or by way of update or supplement to) the version or other document concerned as may be so designated, and
“qualifying residual profit” of a trade, in relation to any accounting period, is the amount obtained by the application of Steps 1 to 4 in section 357C or (as the case may be) section 357DA in relation to the trade for the accounting period.
2
Any reference in this Part to calculating the profits of a trade of a company for an accounting period is a reference to calculating those profits for corporation tax purposes (and any reference to the profits or losses of a trade of a company for an accounting period is to be read accordingly).
2
In Schedule 4 to CTA 2010 (index of defined expressions), at the appropriate place insert —
exclusive licence (in Part 8A) section 357BA
;
finance income (in Part 8A) section 357CB
;
group (in Part 8A) section 357GD
;
invention (in Part 8A) section 357GE
;
item (in Part 8A) section 357GE
;
the OECD Model Tax Convention (in Part 8A) section 357GE
;
the OECD transfer pricing guidelines (in Part 8A) section 357GE
;
qualifying company (in Part 8A) section 357B
;
qualifying IP right (in Part 8A) section 357B(4)
;
qualifying residual profit of a trade (in Part 8A) section 357GE
;
relevant IP income (in Part 8A) section 357CC
;
total gross income of a trade (in Part 8A) section 357CA
.
PART 2
Amendments of TIOPA 2010
2
In Part 4 of TIOPA 2010 (transfer pricing), Chapter 3 (exemptions from basic rule) is amended as follows.
3
In section 166 (exemption for small and medium-sized enterprises), in subsection (2)(a), for “section 167” substitute “sections 167 and 167A”.
4
After section 167 insert —
Small enterprises: exception from exemption: transfer pricing notice
167A
1
Section 166(1) does not apply in relation to any provision made or imposed if —
a
the potentially advantaged person is a small enterprise for the chargeable period,
b
the person meets the condition in subsection (2), and
c
the Commissioners for Her Majesty’s Revenue and Customs give that person a notice requiring the person to calculate the profits and losses of that chargeable period in accordance with section 147(3) or (5) in the case of that provision.
2
A person meets the condition referred to in subsection (1)(b) if —
a
provision has been made or imposed as between the person and any other person by means of a transaction or series of transactions,
b
the basic pre-condition in section 147 is met in respect of the provision, and
c
the transaction, or one or more of the series of transactions, is taken into account in calculating, for the purposes of Part 8A of CTA 2010 (profits arising from the exploitation of patents etc), the relevant IP profits of a trade of a person who is or was a party to the transaction or transactions.
3
A notice under subsection (1) is referred to in this Chapter as a transfer pricing notice.
5
In section 170 (appeals against transfer pricing notices), in subsection (1), for the words from “on the ground that” to the end substitute
on one of the following grounds —
a
that the condition in section 167A(1)(b) is not met, or
b
that the condition in section 168(1)(a) is not met.
6
In section 171 (tax returns where transfer pricing notice given), in subsection (3)(a), before “medium-sized” insert “small or”.
PART 3
Commencement and transitional provision
Application
7
1
The amendments made by this Schedule have effect in relation to accounting periods beginning on or after 1 April 2013 for which an election under section 357A of CTA 2010 has effect.
2
Sub-paragraph (3) applies where a company has an accounting period beginning before 1 April 2013 and ending on or after that date (“the straddling period”).
3
For the purposes of Part 8A of CTA 2010 —
a
so much of the straddling period as falls before 1 April 2013, and so much of that period as falls on or after that date, are treated as separate accounting periods, and
b
any amounts brought into account for the purposes of calculating for corporation tax purposes the profits of any trade of the company for the straddling period are apportioned to the two separate accounting periods on such basis as is just and reasonable.
Special treatment of profits from patents etc to be phased in
8
1
In each of the financial years in the Table below, the reference to RP in the formula in section 357A(3) of CTA 2010 is to be read as a reference to the percentage of RP given for that year —
Financial year Percentage of RP
2013 60% 2014 70% 2015 80% 2016 90%
2
Sub-paragraph (3) applies where there is a set-off amount in relation to any trade of a company for an accounting period falling wholly or partly within a financial year mentioned in the Table in sub-paragraph (1) (“the relevant year”) and —
a
section 357EB of CTA 2010 (allocation of set-off amount within group) applies in relation to the set-off amount (or so much of it as remains after the operation of section 357EA(2) of that Act) for a relevant accounting period falling wholly or partly within the financial year following the relevant year, or
b
section 357EC of that Act (carry-forward of set-off amount) applies in relation to the set-off amount (or so much of it as remains after the operation of section 357EA(2) or 357EB(2) of that Act).
3
For the purposes of section 357EB or (as the case may be) 357EC of CTA 2010 there is to be deducted from the relevant amount an amount equal to the appropriate fraction of that amount.
“The relevant amount” is the amount in relation to which that section applies as mentioned in sub-paragraph (2).
4
The appropriate fraction is —
10 % P
where P is —
the percentage given as the percentage of RP by that Table for the financial year following the relevant year, or
where the relevant year is the financial year 2016, 100%.
5
If a company’s accounting period falls within more than one financial year —
a
the amount of any relevant IP profits of a trade of the company for the accounting period, and
b
where sub-paragraph (3) applies, the relevant amount (within the meaning of that sub-paragraph),
must for the purposes of this paragraph be apportioned between the financial years in which the accounting period falls on such basis as is just and reasonable.
6
In this paragraph —
“relevant accounting period” has the meaning given by section 357EB(3) of CTA 2010,
“relevant IP profits”, in relation to a trade of a company for an accounting period, has the same meaning in this paragraph as in Part 8A of that Act, and
“set-off amount”, in relation to a trade of a company for an accounting period, is to be read in accordance with Chapter 5 of that Act.
SCHEDULE 3
Relief for expenditure on R&D
Section 20
Introductory
1
Part 13 of CTA 2009 (additional relief for expenditure on research and development) is amended as follows.
Amount of relief for expenditure on R&D by small or medium-sized enterprises (“SMEs”)
2
1
Chapter 2 (relief for SMEs: cost of R&D incurred by SME) is amended as follows.
2
In section 1044 (additional deduction in calculating profits of trade), in subsection (8), for “100%” substitute “125%”.
3
In section 1045 (alternative treatment for pre-trading expenditure: deemed trading loss), in subsection (7), for “200%” substitute “225%”.
4
In section 1055 (tax credit: meaning of “Chapter 2 surrenderable loss”), in subsection (2)(b), for “200%” substitute “225%”.
5
In section 1058 (amount of tax credit), in subsection (1)(a), for “12.5%” substitute “11%”.
Removal of R&D threshold
3
1
Chapter 2 (relief for SMEs: cost of R&D incurred by SME) is amended as follows.
2
In section 1043 (overview of Chapter), in subsection (3), omit paragraph (e) (but not the “and” after it).
3
In section 1044 (additional deduction in calculating profits of trade), omit subsection (3).
4
In section 1045 (alternative treatment for pre-trading expenditure: deemed trading loss) —
a
in subsection (1), omit “, B”, and
b
omit subsection (3).
5
Omit section 1050 (R&D threshold).
4
1
Chapter 3 (relief for SMEs: R&D sub-contracted to SME) is amended as follows.
2
In section 1063 (additional deduction in calculating profits of trade) —
a
in subsection (1), omit “, B”, and
b
omit subsection (3).
3
Omit section 1064 (R&D threshold).
5
1
Chapter 4 (relief for SMEs: subsidised and capped expenditure on R&D) is amended as follows.
2
In section 1068 (additional deduction in calculating profits of trade) —
a
in subsection (1), omit “, B”, and
b
omit subsection (3).
3
Omit section 1069 (R&D threshold).
6
1
Chapter 5 (relief for large companies) is amended as follows.
2
In section 1074 (additional deduction in calculating profits of trade) —
a
in subsection (1), omit “, B”, and
b
omit subsection (3).
3
Omit section 1075 (R&D threshold).
7
1
Chapter 7 (relief for SMEs and large companies: vaccine research etc) is amended as follows.
2
In section 1085 (overview of Chapter), in subsection (5), omit paragraph (c).
3
In section 1087 (deduction in calculating profits of trade) —
a
in subsection (1), omit “, B”, and
b
omit subsection (3).
4
In section 1092 (SMEs: deemed trading loss for pre-trading expenditure), omit subsection (3).
5
Omit section 1097 (R&D threshold).
8
In consequence of the amendments made by paragraphs 3 to 7, in Schedule 4 to CTA 2009 omit each of the entries for “R&D threshold”.
Company not a going concern when in administration or liquidation
9
Chapter 2 (relief for SMEs: cost of R&D incurred by SME) is amended as follows.
10
1
Section 1046 (relief only available where company is going concern) is amended as follows.
2
At the end of subsection (2) insert —
This is subject to subsection (2A).
3
After subsection (2) insert —
2A
A company is not a going concern at any time if it is in administration or liquidation at that time.
2B
For the purposes of this section a company is in administration if —
a
it is in administration under Part 2 of the Insolvency Act 1986 or Part 3 of the Insolvency (Northern Ireland) Order 1989 ( S.I. 1989/2405 (N.I. 19) ), or
b
a corresponding situation under the law of a country or territory outside the United Kingdom exists in relation to the company.
2C
For the purposes of this section a company is in liquidation if —
a
it is in liquidation within the meaning of section 247 of that Act or Article 6 of that Order, or
b
a corresponding situation under the law of a country or territory outside the United Kingdom exists in relation to the company.
11
1
Section 1057 (tax credit only available where company is going concern) is amended as follows.
2
At the end of subsection (4) insert —
This is subject to subsection (4A).
3
After subsection (4) insert —
4A
A company is not a going concern at any time if it is in administration or liquidation at that time.
4B
For the purposes of this section a company is in administration if —
a
it is in administration under Part 2 of the Insolvency Act 1986 or Part 3 of the Insolvency (Northern Ireland) Order 1989 ( S.I. 1989/2405 (N.I. 19) ), or
b
a corresponding situation under the law of a country or territory outside the United Kingdom exists in relation to the company.
4C
For the purposes of this section a company is in liquidation if —
a
it is in liquidation within the meaning of section 247 of that Act or Article 6 of that Order, or
b
a corresponding situation under the law of a country or territory outside the United Kingdom exists in relation to the company.
12
Chapter 7 (relief for SMEs and large companies: vaccine research etc) is amended as follows.
13
1
Section 1094 (relief only available to SME where company is going concern) is amended as follows.
2
At the end of subsection (2) insert —
This is subject to subsection (2A).
3
After subsection (2) insert —
2A
A company is not a going concern at any time if it is in administration or liquidation at that time.
2B
For the purposes of this section a company is in administration if —
a
it is in administration under Part 2 of the Insolvency Act 1986 or Part 3 of the Insolvency (Northern Ireland) Order 1989 ( S.I. 1989/2405 (N.I. 19) ), or
b
a corresponding situation under the law of a country or territory outside the United Kingdom exists in relation to the company.
2C
For the purposes of this section a company is in liquidation if —
a
it is in liquidation within the meaning of section 247 of that Act or Article 6 of that Order, or
b
a corresponding situation under the law of a country or territory outside the United Kingdom exists in relation to the company.
14
1
Section 1106 (tax credit only available where company is going concern) is amended as follows.
2
At the end of subsection (4) insert —
This is subject to subsection (4A).
3
After subsection (4) insert —
4A
A company is not a going concern at any time if it is in administration or liquidation at that time.
4B
For the purposes of this section a company is in administration if —
a
it is in administration under Part 2 of the Insolvency Act 1986 or Part 3 of the Insolvency (Northern Ireland) Order 1989 ( S.I. 1989/2405 (N.I. 19) ), or
b
a corresponding situation under the law of a country or territory outside the United Kingdom exists in relation to the company.
4C
For the purposes of this section a company is in liquidation if —
a
it is in liquidation within the meaning of section 247 of that Act or Article 6 of that Order, or
b
a corresponding situation under the law of a country or territory outside the United Kingdom exists in relation to the company.
Removal of limit on amount of tax credit based on PAYE and NIC liabilities
15
1
Chapter 2 (relief for SMEs: cost of R&D incurred by SME) is amended as follows.
2
In section 1058 (amount of tax credit), in subsection (1), omit paragraph (b) (and the “or” before it).
3
Omit section 1059 (total amount of company’s PAYE and NIC liabilities).
Abolition of vaccine research relief for SMEs
16
1
Section 1039 (overview of Part 13) is amended as follows.
2
In subsection (6), for the words from “companies” to “companies)” substitute “large companies”.
3
In subsection (7) —
a
for “Chapters 2 and 7 also provide” substitute “Chapter 2 also provides”, and
b
in paragraph (a), omit “or 7”.
17
In section 1042 (“relevant research and development”), in subsection (3), omit “SMEs and”.
18
In section 1046 (relief only available where company is going concern), in subsection (2)(b), omit “or Chapter 7”.
19
In section 1057 (tax credit only available where company is going concern), in subsection (4)(b), omit “or Chapter 7”.
20
Chapter 7 (relief for SMEs and large companies: vaccine research etc) is amended as set out in paragraphs 21 to 30.
21
1
Section 1085 (overview of Chapter) is amended as follows.
2
In subsection (1), for the words from “companies” to “companies)” substitute “large companies”.
3
For subsection (3) substitute —
3
The relief available is a deduction under section 1087 (the amount of which is determined under section 1091).
4
Omit subsection (4).
5
For subsection (5) substitute —
5
Sections 1098 to 1102 contain provision about when a company’s expenditure is “qualifying Chapter 7 expenditure” for the purposes of obtaining relief and when such expenditure is “for” an accounting period.
6
Omit subsection (6).
7
In subsection (7), omit “or R&D tax credits”.
22
1
Section 1087 (deduction in calculating profits of trade) is amended as follows.
2
In subsection (1), for “and C” substitute “, C and D”.
3
After subsection (4) insert —
4A
Condition D is that the company is a large company throughout the period.
4
For subsection (7) substitute —
7
For the amount of the deduction see section 1091.
5
In subsection (9) —
a
in paragraph (a), omit “large”,
b
omit paragraph (b), and
c
in paragraph (d), for “sections 1099 and 1100” substitute “section 1100”.
23
1
In section 1088 (large companies: declaration about effect of relief), in subsection (1), omit “large”.
2
Accordingly, the heading of that section becomes “ Declaration about effect of relief ”.
24
Omit sections 1089 and 1090 (which relate only to SMEs).
25
1
In section 1091 (large companies: amount of deduction), in subsection (1), omit paragraph (b) (and the “and” before it).
2
Accordingly, the heading of that section becomes “ Amount of deduction ”.
26
Omit sections 1092 to 1096 and 1099 (which relate only to SMEs).
27
1
In section 1100 (large companies: qualifying expenditure “for” an accounting period), for subsection (1) substitute —
1
A company’s qualifying Chapter 7 expenditure is “for” an accounting period if it is allowable as a deduction in calculating for corporation tax purposes the profits for the period of a trade carried on by the company.
2
Accordingly, the heading of that section becomes “ Qualifying expenditure “for” an accounting period ”.
28
Omit sections 1103 to 1111 (tax credits).
29
1
Section 1112 (artificially inflated claims for relief or tax credit) is amended as follows.
2
In subsection (1), for “the purposes mentioned in subsection (2)” substitute “the purpose of determining for an accounting period relief to which a company is entitled under this Chapter”.
3
Omit subsection (2).
4
In subsection (3) —
a
at the end of paragraph (a) insert “or”, and
b
omit paragraphs (c) and (d).
5
Accordingly, the heading of that section becomes “ Artificially inflated claims for relief ”.
30
The heading of Chapter 7 becomes “ Relief for large companies: vaccine research etc ”.
31
1
Chapter 8 (cap on aid for R&D) is amended as follows.
2
In section 1113 (cap on R&D aid under Chapter 2 or 7), in subsection (4)(b), omit “SMEs and”.
3
In section 1115 (“the tax credits”), in subsection (1), omit “or 7”.
32
In consequence of the amendments made by paragraphs 16 to 31 —
a
in Schedule 4 to CTA 2009 (index of defined expressions), omit the entry for “Chapter 7 surrenderable loss”,
b
in Schedule 1 to CTA 2010, omit paragraphs 672 to 674, and
c
in section 43 of FA 2011, omit subsections (7) to (11).
Qualifying expenditure on externally provided workers
33
Chapter 9 (supplementary) is amended as follows.
34
1
Section 1128 (“externally provided worker”) is amended as follows.
2
In subsection (7), for “the staff provider” substitute “a person other than the company (the “staff controller”)”.
3
After subsection (8) insert —
9
In sections 1129 to 1131 references to “staff controller” are to be read in accordance with subsection (7).
35
1
Section 1129 (connected persons) is amended as follows.
2
In subsection (1), for paragraphs (b) and (c) substitute —
b
the company, the staff provider and (if different) the staff controller (or staff controllers) are all connected, and
c
in accordance with generally accepted accounting practice —
i
the whole of the staff provision payment has been brought into account in determining the staff provider’s profit or loss for a relevant period, and
ii
all of the relevant expenditure of each staff controller has been brought into account in determining the staff controller’s profit or loss for a relevant period.
3
In subsection (2)(b), for “the staff provider’s relevant expenditure” substitute “the aggregate of the relevant expenditure of each staff controller”.
4
In subsection (3) —
a
for “of the staff provider” substitute “, in relation to a staff controller,”, and
b
in paragraph (a), for “staff provider” substitute “staff controller”.
5
In subsection (4) —
a
after ““Relevant period”” insert “, in relation to a person,”, and
b
in paragraph (a), for “staff provider” substitute “person”.
6
In subsection (5) —
a
for “the staff provider’s expenditure” substitute “the expenditure of a staff controller”, and
b
for “the staff provider” substitute “a staff controller”.
7
In subsection (7), for “staff provider” substitute “a staff controller”.
36
1
Section 1130 (election for connected persons treatment) is amended as follows.
2
For subsection (1) substitute —
1
If —
a
a company makes a staff provision payment, and
b
the company, the staff provider and (if different) the staff controller (or staff controllers) are not all connected,
they may jointly elect that section 1129 is to apply to them as if they were all connected.
3
In subsection (2), for “must be made” substitute “has effect”.
37
In section 1131 (qualifying expenditure on externally provided workers: other cases), in subsection (1), for paragraph (b) (but not the “and” following it) substitute —
b
the company, the staff provider and (if different) the staff controller (or staff controllers) are not all connected,
.
Application
38
The amendments made by paragraphs 2 and 16 to 37 have effect in relation to expenditure incurred on or after 1 April 2012.
39
The amendments made by paragraphs 3 to 8 and 15 have effect in relation to accounting periods ending on or after 1 April 2012.
40
The amendments made by paragraphs 9 to 14 have effect in relation to claims or elections made on or after 1 April 2012.
SCHEDULE 4
Real estate investment trusts
Section 21
Introduction
1
Part 12 of CTA 2010 (real estate investment trusts) is amended as follows.
Being a UK REIT: conditions for company - close companies
2
1
Section 525 (becoming a UK REIT: supplementary provision) is amended as follows.
2
In subsection (1)(c) for “the conditions” substitute “conditions A, B, C, E and F”.
3
In subsection (4)(a) omit “D,”.
4
Omit subsections (5) to (8).
3
In section 527 (being a UK REIT in relation to an accounting period) after subsection (4) insert —
5
Subsections (2)(a) and (3)(a) are also subject to subsections (6) to (8).
6
If the accounting period ends during the first 3-year period, condition D in section 528 does not have to be met.
7
If the accounting period begins, but does not end, during the first 3- year period, condition D in section 528 only has to be met throughout the part of the accounting period falling after the end of the first 3- year period.
8
In subsections (6) and (7) “the first 3-year period” means the period of 3 years beginning with the date specified in the notice given under section 523 or 524.
4
1
Section 528 (conditions for company) is amended as follows.
2
In subsection (4)(b) for the words from “a limited partnership” to the end substitute “an institutional investor”.
3
After subsection (4) insert —
4A
Institutional investor” means any of the following persons —
a
the trustee or manager of —
i
an authorised unit trust scheme (as defined in section 237(3) of FISMA 2000), or
ii
a unit trust scheme (as defined in section 237(1) of FISMA 2000) which is authorised under the law of a territory outside the United Kingdom in a way which makes it, under that law, the equivalent of an authorised unit trust scheme (as defined in section 237(3) of that Act);
b
a company —
i
which is an open-ended investment company (as defined in section 236(1) of FISMA 2000) incorporated by virtue of regulations under section 262 of that Act, or
ii
which is incorporated under the law of a territory outside the United Kingdom and is, under that law, the equivalent of an open-ended investment company (as defined in section 236(1) of FISMA 2000);
c
a person acting on behalf of a limited partnership which is a collective investment scheme (as defined in section 235 of FISMA 2000);
d
the trustee or manager of a pension scheme (as defined in section 150(1) of FA 2004);
e
a person acting in the course of a long-term insurance business (that is, the activity of effecting or carrying out contracts of long-term insurance within the meaning of the Financial Services and Markets (Regulated Activities) Order 2001 ( S.I. 2001/544 )) who —
i
is authorised under FISMA 2000 to carry on such business, or
ii
has an equivalent authorisation under the law of a territory outside the United Kingdom to carry on such business;
f
a charity;
g
a person registered under any of the following provisions (which provide for registers of social landlords) —
i
in England, section 111 of the Housing and Regeneration Act 2008;
ii
in Scotland, section 20 of the Housing (Scotland) Act 2010 (asp 17) ;
iii
in Wales, section 1 of the Housing Act 1996;
iv
in Northern Ireland, Article 14 of the Housing (Northern Ireland) Order 1992 ( S.I. 1992/1725 (N.I. 15) );
h
a person who cannot be liable for corporation tax or income tax (as relevant) on the ground of sovereign immunity.
4B
The Treasury may by regulations amend the definition of “institutional investor” by inserting, omitting or amending a description of person in subsection (4A).
5
In section 558 (demergers: disposal of asset) in subsections (3) and (6) for “C to F” substitute “C, E and F”.
6
In section 559 (demergers: company leaving group UK REIT) in subsections (6) and (9) for “C to F” substitute “C, E and F”.
7
In section 561 (notice of breach of relevant Chapter 2 condition) after subsection (4) insert —
5
The following subsections apply in relation to condition D in section 528.
6
In accordance with section 527(6) and (7), a notification does not have to be given under subsection (1) or (2) if condition D ceases to be met during the first 3-year period.
7
If condition D is not met at the start of the first day after the end of the first 3-year period, for the purposes of subsections (1) to (4) condition D is treated as having ceased to be met at the start of that day.
8
In subsections (6) and (7) “the first 3-year period” has the meaning given by section 527(8).
8
1
Section 562 (breach of conditions C and D in section 528) is amended as follows.
2
In the heading for “ conditions C and D ” substitute “ condition C ”.
3
In subsection (1) for the words from “or D” to “conditions)” substitute “in section 528”.
4
In subsection (2) —
a
for “both conditions C and D are” substitute “condition C is”, and
b
for “breaches are” substitute “breach is”.
5
Omit subsections (3) and (4).
6
In subsection (5) —
a
in paragraph (a) for “either condition C or D” substitute “condition C”, and
b
in paragraph (b) omit “or (3)”.
9
After section 562 insert —
Breach of condition D in section 528 (conditions for company)
562A
1
This section makes provision about cases relating to breaches of condition D in section 528 in relation to —
a
the principal company of a group UK REIT, or
b
a company UK REIT.
2
In accordance with section 527(6) and (7), a breach of condition D during the first 3-year period is to be ignored.
3
If condition D is not met at the start of the first day after the end of the first 3-year period, the group or company (as the case may be) is to be treated as having ceased to be a UK REIT at the end of the first 3-year period.
4
If condition D is not met at any time after the start of the day mentioned in subsection (3), the group or company (as the case may be) is to be treated as having ceased to be a UK REIT at —
a
the end of the accounting period preceding the accounting period in which the breach began, or
b
if later, the end of the first 3-year period.
5
Neither subsection (3) nor subsection (4) applies if condition D is not met as a result of —
a
the principal company of a group UK REIT becoming a member of another group UK REIT, or
b
a company UK REIT becoming a member of a group UK REIT,
and, accordingly, the breach is to be ignored.
6
Subsection (4) does not apply if —
a
condition D is not met as a result of anything done (or not done) by a person other than the company in question, and
b
the company remedies the breach not later than the end of the accounting period after that in which the breach began,
and, accordingly, the breach is to be ignored.
7
But if, in a case within subsection (6) , the breach of condition D is not remedied by the time mentioned in that subsection, the group or company (as the case may be) is treated as having ceased to be a UK REIT at the end of the accounting period in which the breach began.
8
In this section “the first 3-year period” has the meaning given by section 527(8).
10
1
Section 572 (termination by notice given by HMRC) is amended as follows.
2
In subsection (2) after “573,” insert “573A,”.
3
After subsection (5) insert —
5A
Subsection (4)(a) has effect subject to section 573A(8).
11
After section 573 insert —
Notice under section 572: condition D in section 528 not met
573A
1
An officer of Revenue and Customs may give a notice under section 572(1) if —
a
at any time during the first 3-year period, condition D in section 528 is not met, and
b
as at that time, subsection (2) has applied to a member of the group or the company (as the case may be) for a period exceeding 3 years or for a number of periods which in total exceed 3 years.
2
This subsection applies to a company at any time when —
a
the company is, or is a member of, a UK REIT,
b
condition D in section 528 is not met in relation to the UK REIT, and
c
the first 3-year period in relation to the UK REIT has not ended.
3
Neither subsection (1)(a) nor subsection (2)(b) covers cases in which condition D in section 528 is not met as a result of —
a
the principal company of a group UK REIT becoming a member of another group UK REIT, or
b
a company UK REIT becoming a member of a group UK REIT.
4
Subsection (5) applies if —
a
a company ceases to carry on a business (“the transferred business”) which it carried on at a time (“the relevant time”) when subsection (2) applied to the company, and
b
another company (“company X”) begins to carry on the transferred business.
In paragraph (a) the reference to a business includes a part of a business.
5
Subsection (2) is to be taken to have applied at the relevant time to the following companies —
a
company X, and
b
if company X subsequently ceases to carry on the transferred business (or any part of it), any other companies which from time to time carry on the transferred business (or any part of it).
6
In this section “the first 3-year period” has the meaning given by section 527(8).
7
If a notice is given under section 572(1) in a case within this section, subsection (8) applies instead of section 572(4)(a).
8
The group or company (as the case may be) is to be taken to have ceased to be a UK REIT on —
a
the first day of accounting period 1, or
b
such later day as may be specified by the officer of Revenue and Customs in the notice.
12
1
Section 577 (multiple breaches of conditions in Chapter 2) is amended as follows.
2
In subsection (5)(a) for “section 562(2) and (3)” substitute “section 562A(6)”.
3
In subsection (7) —
a
in paragraph (b) omit “or D” and “or (5) to (7)”, and
b
in paragraph (c) for “C to F” substitute “C, E and F”.
4
After subsection (7) insert —
8
In accordance with section 527(6) and (7), a breach of condition D in section 528 during the first 3-year period (as defined in section 527(8)) is also to be ignored for the purposes of this section.
13
1
The amendments made by paragraph 2 have effect in relation to notices given under section 523 or 524 specifying a date which is on or after the day on which this Act is passed.
2
The amendments made by paragraphs 3 to 12 have effect in relation to —
a
groups of companies in respect of which notices are given under section 523 specifying a date which is on or after the day on which this Act is passed, and
b
companies which give notices under section 524 specifying a date which is on or after the day on which this Act is passed.
3
The amendments made by paragraph 4 also have effect in relation to —
a
groups of companies in respect of which notices are given under section 523 specifying a date which is before the day on which this Act is passed, and
b
companies which give notices under section 524 specifying a date which is before the day on which this Act is passed,
for accounting periods beginning on or after the day on which this Act is passed (including, in relation to a breach beginning in an accounting period beginning before that day, for the purpose of determining under section 562(3) whether the breach is remedied in an accounting period beginning on or after that day).
Being a UK REIT: conditions for company - trading of shares on recognised stock exchange
14
In section 527 (being a UK REIT in relation to an accounting period) in subsections (2) and (3) after paragraph (a) insert —
aa
the condition in section 528A (further condition relating to shares) must be met in relation to the period,
.
15
In section 528 (conditions for company) in subsection (3) for “listed” substitute “admitted to trading”.
16
After section 528 insert —
Further condition relating to shares
528A
1
In the case of a group UK REIT, the condition in this section is met in relation to an accounting period if —
a
throughout the accounting period, the shares forming the principal company’s ordinary share capital meet the requirement of section 1137(2)(b) (definition of “listed” in relation to shares), or
b
during the accounting period, shares forming part of the principal company’s ordinary share capital are traded on a recognised stock exchange.
2
In the case of a company UK REIT, the condition in this section is met in relation to an accounting period if —
a
throughout the accounting period, the shares forming the company’s ordinary share capital meet the requirement of section 1137(2)(b) (definition of “listed” in relation to shares), or
b
during the accounting period, shares forming part of the company’s ordinary share capital are traded on a recognised stock exchange.
3
This section is subject to section 528B.
Relaxation of section 528A condition for accounting periods 1 to 3
528B
1
This section relaxes the requirements of section 528A in relation to accounting period 1, accounting period 2 and accounting period 3.
2
In the case of a group UK REIT, the condition in section 528A is met in relation to accounting period 1, accounting period 2 and accounting period 3 if —
a
at the end of the relevant period, the shares forming the principal company’s ordinary share capital meet the requirement of section 1137(2)(b) (definition of “listed” in relation to shares), or
b
during the relevant period, shares forming part of the principal company’s ordinary share capital are traded on a recognised stock exchange.
3
In the case of a company UK REIT, the condition in section 528A is met in relation to accounting period 1, accounting period 2 and accounting period 3 if —
a
at the end of the relevant period, the shares forming the company’s ordinary share capital meet the requirement of section 1137(2)(b) (definition of “listed” in relation to shares), or
b
during the relevant period, shares forming part of the company’s ordinary share capital are traded on a recognised stock exchange.
4
In this section —
“accounting period 2” means the accounting period following accounting period 1,
“accounting period 3” means the accounting period following accounting period 2, and
“the relevant period” means the period consisting of accounting period 1, accounting period 2 and accounting period 3.
17
In section 561 (notice of breach of relevant Chapter 2 condition) in subsection (3) before “conditions A and B in section 529” insert —
the condition in section 528A (further condition relating to shares),
.
18
Before section 563 insert —
Breach of further condition relating to shares
562B
1
Subsection (2) applies if the condition in section 528A (further condition relating to shares) is not met in relation to an accounting period.
2
The group or company (as the case may be) is to be treated as having ceased to be a UK REIT at the end of the previous accounting period.
3
But subsection (2) does not apply if the condition is not met as a result of —
a
the principal company of a group UK REIT becoming a member of another group UK REIT, or
b
a company UK REIT becoming a member of a group UK REIT,
and, accordingly, the breach is to be ignored.
4
This section is subject to section 562C.
Breach of further condition relating to shares in accounting periods 1, 2 and 3
562C
1
Subsection (2) applies if the condition in section 528A, as relaxed by section 528B, is not met in relation to accounting period 1, accounting period 2 and accounting period 3.
2
The group or company (as the case may be) is to be treated as having ceased to be a UK REIT at the end of accounting period 2.
3
But subsection (2) does not apply if the condition, as relaxed, is not met as a result of —
a
the principal company of a group UK REIT becoming a member of another group UK REIT, or
b
a company UK REIT becoming a member of a group UK REIT,
and, accordingly, the breach is to be ignored.
4
In this section “accounting period 2” and “accounting period 3” have the same meaning as in section 528B.
19
1
Section 572 (termination by notice given by HMRC) is amended as follows.
2
In subsection (2) before “574” insert “573B,”.
3
Before subsection (6) insert —
5B
Subsection (4)(a) has effect subject to section 573B(9).
20
Before section 574 insert —
Notice under section 572: further condition relating to shares not met
573B
1
In the case of a group UK REIT, an officer of Revenue and Customs may give a notice under section 572(1) if —
a
the condition in section 528A (further condition relating to shares) would not be met in relation to an accounting period (“the relevant accounting period”) but for section 528B, and
b
subsection (2) applies to a company which is a member of the group at any time during the relevant accounting period.
2
This subsection applies to a company if it has benefited from the relaxation of the condition in section 528A in relation to 3 or more accounting periods (apart from the relevant accounting period).
3
In the case of a company UK REIT, an officer of Revenue and Customs may give a notice under section 572(1) if —
a
the condition in section 528A (further condition relating to shares) would not be met in relation to an accounting period (“the relevant accounting period”) but for section 528B, and
b
the company has benefited from the relaxation of the condition in section 528A in relation to 3 or more accounting periods (apart from the relevant accounting period).
4
For the purposes of this section a company benefits from the relaxation of the condition in section 528A if —
a
it is a member of a group UK REIT at any time during an accounting period in relation to which the condition in section 528A would not be met but for section 528B, or
b
at any time it is a company UK REIT and the condition in section 528A would not be met in relation to an accounting period but for section 528B,
and the accounting period “in relation to” which the company benefits from the relaxation of the condition in section 528A is the accounting period mentioned in paragraph (a) or (b) (as the case may be).
5
None of subsections (1)(a) , (3)(a) , (4)(a) and (4)(b) covers cases in which the condition in section 528A would not be met as a result of —
a
the principal company of a group UK REIT becoming a member of another group UK REIT, or
b
a company UK REIT becoming a member of a group UK REIT.
6
Subsection (7) applies if —
a
a company ceases to carry on a business (“the transferred business”) which it carried on at any time during an accounting period in relation to which the company benefits from the relaxation of the condition in section 528A, and
b
another company (“company X”) begins to carry on the transferred business.
In paragraph (a) the reference to a business includes a part of a business.
7
The following companies are to be taken to benefit from the relaxation of the condition in section 528A in relation to the accounting period in question —
a
company X, and
b
if company X subsequently ceases to carry on the transferred business (or any part of it), any other companies which from time to time carry on the transferred business (or any part of it).
8
If a notice is given under section 572(1) in a case within this section, subsection (9) applies instead of section 572(4)(a).
9
The group or company (as the case may be) is to be taken to have ceased to be a UK REIT on —
a
the first day of accounting period 1, or
b
such later day as may be specified by the officer of Revenue and Customs in the notice.
21
1
Subject to what follows, the amendments made by paragraphs 14 to 20 have effect for accounting periods beginning on or after the day on which this Act is passed.
2
Sections 528B, 562C and 573B have no effect in relation to —
a
groups of companies in respect of which notices are given under section 523 specifying a date which is before the day on which this Act is passed, or
b
companies which give notices under section 524 specifying a date which is before the day on which this Act is passed.
Being a UK REIT: condition as to distribution of profits
22
In section 530 (condition as to distribution of profits) in subsection (6D) for “three” substitute “6”.
23
After section 530 insert —
Condition as to distribution of profits: increase in profits after delivery of tax return
530A
1
Section 530(1) applies subject to subsection (2) below in relation to an accounting period if —
a
the principal company of the group delivered with its tax return for the period the financial statement under section 532(2)(b) showing the amount of the UK profits of the group arising in the period, and
b
as at the relevant date, those profits have been increased from the amount originally shown in the statement.
2
Any distribution of those profits made by the principal company before the end of the relevant period is to be treated as having been made within the deadline set by section 530(1)(c).
3
But the total amount of profits that may be treated as having been distributed within that deadline by virtue of subsection (2) is limited to 90% of the amount of the increase in profits.
4
In subsections (1) and (2) (and this subsection) —
“the relevant date” means the date on which the principal company’s tax return can no longer be amended,
“the relevant period” means the period of 3 months beginning with the relevant date, and
“UK profits” has the meaning given by section 530(2).
5
Section 530(4) applies subject to subsection (6) below in relation to an accounting period if —
a
the company delivered its tax return for the period showing the amount of the profits of its property rental business arising in the period as calculated in accordance with section 599, and
b
as at the relevant date, those profits have been increased from the amount originally shown in the return.
6
Any distribution of those profits made before the end of the relevant period is to be treated as having been made within the deadline set by section 530(4)(b).
7
But the total amount of profits that may be treated as having been distributed within that deadline by virtue of subsection (6) is limited to 90% of the amount of the increase in profits.
8
In subsections (5) and (6) (and this subsection) —
“the relevant date” means the date on which the company’s tax return can no longer be amended, and
“the relevant period” means the period of 3 months beginning with the relevant date.
9
In this section “distribution” is to be read in accordance with section 530(6A) and (6B).
24
In section 564 (breach of condition as to distribution of profits) omit subsections (5) to (8).
25
1
Section 565 (which defines the amount to be charged to corporation tax where there is a breach of the condition in section 530) is amended as follows.
2
In subsections (2) and (3), in the definition of “D” —
a
for “on or before” substitute “within”,
b
in paragraph (a) for “filing date referred to in” substitute “deadline set by”, and
c
in paragraph (b) for “date specified” substitute “deadline set”.
3
After subsection (3) insert —
4
The definition of “D” in subsections (2) and (3) needs to be read with section 530A (so far as applicable).
26
1
The amendment made by paragraph 22 has effect in relation to distributions made on or after the day on which this Act is passed.
2
The amendments made by paragraphs 23 to 25 have effect for accounting periods beginning on or after the day on which this Act is passed.
Being a UK REIT: conditions as to balance of business
27
1
Section 531 (conditions as to balance of business) is amended as follows.
2
For subsection (5) substitute —
5
Condition B is that at the beginning of the accounting period the sum of —
a
the value of the assets relating to property rental business, and
b
the value of the assets relating to residual business so far as consisting of cash,
is at least 75% of the total value of assets held by the group or company (as the case may be).
3
In subsection (6)(b) after “business” insert “(and the amount of the group’s cash is to be determined accordingly)”.
4
After subsection (7) insert —
8
In this section “cash” means —
a
money held on deposit (whether or not in sterling),
b
stocks or bonds of any description included in Part 1 of Schedule 11 to FA 1942 (gilts), or
c
money held in any other way, or any investment of any other form, specified in regulations made by the Commissioners for Her Majesty’s Revenue and Customs.
28
In section 547 (funds awaiting reinvestment) omit subsection (3).
29
1
Section 566 (breach of condition B in section 531 in accounting period 1) is amended as follows.
2
In subsection (2) omit the words from “but an amount of income” to the end.
3
Omit subsections (3) to (6).
30
Omit section 567 (breach of condition B in section 531 in accounting period 1: meaning of “the notional amount”).
31
In section 568 (breach of balance of business conditions after accounting period 1) in subsection (2)(b) for “value of the assets involved in property rental business of the UK REIT in question” substitute “sum of the values mentioned in section 531(5)(a) and (b)”.
32
1
The amendments made by paragraphs 27 , 28 and 31 have effect for accounting periods beginning on or after the day on which this Act is passed.
2
The amendments made by paragraphs 29 and 30 have effect in relation to a breach of condition B in section 531 if accounting period 1 begins on or after the day on which this Act is passed.
Abolition of entry charge
33
1
Omit sections 538 to 540 (entry charge).
2
Sub-paragraph (1) does not affect the application of section 540 in relation to a company if the date of entry is before the day on which this Act is passed.
34
1
In section 545 (cancellation of tax advantage) in subsection (5) omit the words from “(and includes,” to “538)”.
2
Sub-paragraph (1) does not affect the powers of an officer of Revenue and Customs under section 545 in cases in which a company which is, or is a member of, a UK REIT tries before the day on which this Act is passed to obtain a tax advantage.
35
1
In section 556 (disposal of assets) omit subsection (4).
2
Sub-paragraph (1) does not affect the application of subsection (4) in relation to a company if entry is before the day on which this Act is passed.
36
1
In section 558 (demergers: disposal of asset) in subsection (4) omit “and section 538 (entry charge)”.
2
Sub-paragraph (1) has no effect in relation to cases in which the date specified in the notice under section 523(1) is before the day on which this Act is passed.
37
In section 559 (demergers: company leaving group UK REIT) in subsection (8) omit “section 538 (entry charge),”.
38
In section 583 (overview of Chapter 10 relating to joint ventures) omit subsection (4)(b).
39
Omit sections 595 to 597 (additional entry charges in cases involving joint ventures) and the italic heading before section 595.
Financing cost ratio
40
1
Section 543 (financing cost ratio) is amended as follows.
2
In subsection (1) after “period” insert “(unless it is nil or a negative amount)”.
3
For subsection (3) substitute —
3
The excess is charged to corporation tax in relation to the accounting period under the charge to corporation tax on income.
3A
“The excess” means —
a
the amount equal to —
i
PFC, minus
ii
the property financing costs which would cause the calculation in subsection (2) to equal 1.25 for the accounting period, or
b
if less, the amount equal to 20% of PP.
41
1
Section 544 (meaning of “property financing costs” etc) is amended as follows.
2
In subsection (5) for “include” and paragraphs (a) to (e) substitute
are —
a
interest payable on borrowing,
b
amortisation of discounts relating to borrowing,
c
amortisation of premiums relating to borrowing,
d
the financing expense implicit in payments made under finance leases, and
e
alternative finance return (as defined in sections 511 to 513 of CTA 2009).
3
After subsection (5) insert —
6
The Treasury may by regulations amend the list of matters in subsection (5) by inserting, omitting or amending a description of a matter.
42
The amendments made by paragraphs 40 and 41 have effect for accounting periods beginning on or after the day on which this Act is passed.
Disposal of assets
43
1
Section 556 (disposal of assets) is amended as follows.
2
In subsection (1) —
a
omit the “and” after paragraph (a), and
b
after paragraph (b) insert
, and
c
if the company is a member of a UK REIT, the disposal is not to another member of the UK REIT.
3
In subsection (3) —
a
omit the “and” after paragraph (b), and
b
after paragraph (c) insert
, and
d
if the company is a member of a UK REIT, the disposal is not to another member of the UK REIT.
44
The amendments made by paragraph 43 have effect in relation to disposals occurring on or after the day on which this Act is passed.
SCHEDULE 5
Tax treatment of financing costs and income
Section 31
1
Part 7 of TIOPA 2010 (tax treatment of financing costs and income) is amended as follows.
2
In section 262 (UK net debt of worldwide group for period of account of worldwide group), in subsection (4), for “dormant (within the meaning of section 1169 of the Companies Act 2006)” substitute “a dormant company”.
3
In section 276 (disallowance of deductions: appointment of authorised company for relevant period of account), after subsection (2) insert —
2A
In subsection (2), the reference to each company to which this Chapter applies does not include a company that is a dormant company throughout the relevant period of account.
4
In section 280 (statement of allocated disallowances: requirements), after subsection (5) insert —
5A
An amount may not be specified in relation to a company under subsection (4)(b) if it accrues at a time at which the company is not a relevant group company.
5
In section 288 (exemption of financing income: appointment of authorised company for relevant period of account), after subsection (2) insert —
2A
In subsection (2), the reference to each company to which this Chapter applies does not include a company that is a dormant company throughout the relevant period of account.
6
In section 292 (statement of allocated exemptions: requirements), after subsection (5) insert —
5A
An amount may not be specified in relation to a company under subsection (4)(b) if it accrues at a time at which the company is not a UK group company.
7
In section 296 (failure of reporting body to submit statement of allocated exemptions), after subsection (2) insert —
2A
Subsection (2) does not apply to a financing income amount if it accrues to the company in question at a time when it is not a UK group company.
8
In Chapter 6 (tax avoidance), before section 306 insert —
Schemes preventing this Part applying to a large group
305A
1
This section applies in relation to a period of account of a large group of entities if, apart from this section, this Part would not apply in relation to that period because of a failure by the group to meet the requirement of section 337(1)(b) (the worldwide group must contain one or more relevant group companies) throughout that period.
2
If conditions A and B are met, this Part applies to the group as it would have applied had the scheme mentioned in condition A not been entered into.
3
Condition A is that —
a
at or before the end of the period of account, a scheme is entered into, and
b
the main purpose, or one of the main purposes, for which a person becomes or is party to the scheme is to secure that the requirement of section 337(1)(b) is not met by the group throughout that period.
4
Condition B is that the scheme is not an excluded scheme.
9
1
Section 313 (the financing expense amounts of a company) is amended as follows.
2
In subsection (6), for “the same proportion” substitute “such proportion as is just and reasonable”.
3
After that subsection insert —
6A
An amount may be reduced to nil under subsection (6).
10
1
Section 314 (the financing income amounts of a company) is amended as follows.
2
In subsection (6), for “the same proportion” substitute “such proportion as is just and reasonable”.
3
After that subsection insert —
6A
An amount may be reduced to nil under subsection (6).
11
In section 316 (group treasury companies), omit subsection (4).
12
1
Section 329 (the tested expense amount) is amended as follows.
2
In subsection (3), for “arises as a result of a transaction that takes place” substitute “accrues”.
3
After subsection (5) insert —
6
But subsection (5) does not apply if an election under section 331ZA has effect for the period of account.
13
1
Section 330 (the tested income amount) is amended as follows.
2
In subsection (3), for “arises as a result of a transaction that takes place” substitute “accrues”.
3
After subsection (5) insert —
6
But subsection (5) does not apply if an election under section 331ZA has effect for the period of account.
14
After section 331 insert —
Elections disapplying sections 329(5) and 330(5)
331ZA
1
The relevant reporting body of the worldwide group may elect that sections 329(5) and 330(5) are not to apply in relation to the group.
2
The election must specify —
a
the first period of account of the worldwide group in relation to which it has effect, and
b
the name and tax reference of —
i
each company that is a UK group company at the time the election is made, and
ii
any other company that was a UK group company at any time during the period beginning at the same time as that period of account and ending when the election is made.
3
An election has effect for the specified period of account and subsequent periods of account of the worldwide group (unless withdrawn under subsection (4) or replaced by a further election made in relation to the group).
4
The relevant reporting body of the worldwide group may withdraw an election with effect from the beginning of the period of account specified in the withdrawal.
5
“The relevant reporting body” means —
a
if an appointment under section 288 has effect in relation to the specified period of account, the company appointed under that section, and
b
if such an appointment does not have effect, the companies which are UK group companies at the relevant time, acting jointly.
But the companies within paragraph (b) do not include any company that is a dormant company throughout the specified period of account.
6
An election or withdrawal must —
a
be made by notice in writing to an officer of Revenue and Customs, and
b
be received by HMRC within 12 months of the end of the specified period of account.
7
The notice must be signed —
a
in a case within paragraph (a) of subsection (5), by the appropriate person in relation to the company appointed under section 288, and
b
in a case within paragraph (b) of that subsection, by the appropriate person in relation to each company within that paragraph.
8
For the purposes of this section —
“the appropriate person”, in relation to a company, means —
the proper officer of the company, or
such other person as may for the time being have the express, implied or apparent authority of the company to act on its behalf for the purposes of this Part,
and subsections (3) and (4) of section 108 of TMA 1970 (responsibility of company officers: meaning of “proper officer”) apply as they apply for the purposes of that section;
“relevant time” means —
in the case of an election, the time the election is made, and
in the case of a withdrawal of an election, the time the withdrawal is made;
“specified period of account” means —
in the case of an election, the period specified under subsection (2)(a), and
in the case of a withdrawal of an election, the period specified under subsection (4).
15
1
Section 337 (meaning of “the worldwide group”) is amended as follows.
2
The existing provision becomes subsection (1).
3
After that subsection insert —
2
For the purposes of subsection (1), section 345(3) to (7) (meaning of “relevant group company”) has effect as if references to the worldwide group were to the group of entities mentioned in subsection (1).
16
1
In section 339 (meaning of “ultimate parent”), subsection (1) is amended as follows.
2
In paragraph (b)(i) —
a
for “not” substitute “neither”, and
b
after “applies” insert “nor an entity formed under the law of a territory outside the United Kingdom which would be a partnership if formed under the law of any part of the United Kingdom”.
3
In paragraph (c) omit the words from “or an entity that would be a collective investment scheme but for the fact that it is a body corporate”.
17
In section 348 (non-existent financial statements of the worldwide group), after subsection (5) insert —
6
Subsection (7) applies if —
a
financial statements of the worldwide group are drawn up in respect of a period (“the whole period”), but
b
the worldwide group was in existence for only part of that period (“the relevant part”).
7
For the purposes of this Part (other than subsection (7)) —
a
those statements are to be ignored, and
b
subsections (2) to (5) apply to the relevant part as they apply to the relevant period,
(and, accordingly, neither the whole period nor the remainder of it is to be treated as a period of account of the worldwide group to which this Part applies).
18
After section 348 insert —
Financial statements: business combinations to which the worldwide group is a party
348A
1
Subsection (2) applies where —
a
a business combination or demerger occurs to which the worldwide group is party (“the relevant event”),
b
as a result of the relevant event, there is a change in the identity of the ultimate parent of —
i
the worldwide group, or
ii
any other group which is party to the relevant event, and
c
financial statements of the worldwide group are drawn up, or (in the absence of this section) would be treated as drawn up under section 348, for a period which begins before and ends after the relevant event (“the straddling period”).
2
This Part (apart from this section) applies as if —
a
no financial statements of the worldwide group had been drawn up for the straddling period,
b
section 348 did not apply to that period, and
c
IAS financial statements had been drawn up in respect of each of the following —
i
the period beginning at the same time as the straddling period and ending immediately before the relevant event, and
ii
the period beginning with the relevant event and ending at the same time as the straddling period.
3
For the purposes of this section —
a
“demerger” means a transaction by which one or more groups cease to be members of a group,
b
a group is party to a business combination or demerger if the business combination or demerger affects one or more members of the group, and
c
the reference to “IAS financial statements” is to be construed in accordance with section 348(5).
19
In section 351 (expressions taking their meaning from international accounting standards), in subsection (1), before the entry for “effective interest method” insert —
“business combination”,
.
20
In section 353 (other expressions), at the appropriate place insert —
“dormant company” means —
a company that is “dormant” within the meaning of section 1169 of the Companies Act 2006, or
a company of an equivalent description which is incorporated outside the United Kingdom,
other than, in the case of paragraph (a), a company in respect of which adjustments fall to be made under section 147(3) or (5) (transfer pricing: tax calculations to be based on arm’s length not actual provision),
.
21
After section 353A insert —
Power to make regulations where accounting standards change
353AA
1
The Treasury may by regulations amend this Part to take account of any relevant accounting change resulting from a change in accounting standards.
2
“Relevant accounting change” means a change in the way in which a company is permitted or required for accounting purposes to present, or disclose amounts in, consolidated financial statements of an ultimate parent of a group and its subsidiaries.
3
“Change in accounting standards” means the issue, revocation, amendment or recognition of, or withdrawal of recognition from, an accounting standard by an accounting body.
4
Regulations under this section may make provision subject to an election or other specified circumstances.
5
Regulations under this section may apply to a pre-commencement period if they make provision in relation to a relevant accounting change which may or must be adopted, for accounting purposes, for a period of account, or part of a period of account, which coincides with that pre-commencement period.
6
A statutory instrument containing regulations under this section to which subsection (7) applies may not be made unless a draft of the instrument has been laid before and approved by a resolution of the House of Commons.
7
This subsection applies if the regulations contain any provision which has or may have the effect of increasing any person’s liability to tax.
8
Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of the House of Commons.
9
In this section —
“accounting body” means the International Accounting Standards Board or the Accounting Standards Board, or a successor body to either of those Boards;
“accounting standard” includes any statement of practice, guidance or other similar document;
“pre-commencement period”, in relation to regulations, means an accounting period, or part of an accounting period, which begins before the regulations are made.
22
1
The amendment made by paragraph 21 has effect in relation to any change in accounting standards made on or after the day on which this Act is passed.
2
The other amendments made by this Schedule have effect in relation to periods of account of the worldwide group ending on or after the day on which this Act is passed.
SCHEDULE 6
Seed enterprise investment scheme
Section 38
PART 1
The scheme
1
In ITA 2007, after Part 5 (enterprise investment scheme) insert —
PART 5A
Seed enterprise investment scheme
CHAPTER 1
Introduction
SEIS relief
Meaning of “SEIS relief” and commencement
257A
1
This Part provides for SEIS income tax relief (“SEIS relief”), that is, entitlement to tax reductions in respect of amounts subscribed by individuals for shares in companies carrying on new businesses.
2
In this Part “SEIS” stands for the seed enterprise investment scheme.
3
This Part has effect only in relation to shares issued —
a
on or after 6 April 2012, but
b
before 6 April 2017.
4
The Treasury may by order substitute a later date for the date for the time being specified in subsection (3)(b).
Eligibility for SEIS relief
257AA
An individual (“the investor”) is eligible for SEIS relief in respect of an amount subscribed by the investor on the investor’s own behalf for an issue of shares in a company (“the issuing company”) if —
a
the shares (“the relevant shares”) are issued to the investor,
b
the investor is a qualifying investor in relation to the relevant shares (see Chapter 2),
c
the general requirements (including requirements as to the purpose of the issue of shares and the use of money raised) are met in respect of the relevant shares (see Chapter 3), and
d
the issuing company is a qualifying company in relation to the relevant shares (see Chapter 4).
Form and amount of SEIS relief
257AB
1
If an individual —
a
is eligible for SEIS relief in respect of any amount subscribed for shares, and
b
makes a claim in respect of all or some of the shares included in the issue,
the individual is entitled to a tax reduction for the tax year in which the shares were issued (“the current tax year”).
This is subject to the provisions of this Part.
2
The amount of the tax reduction to which the individual is entitled is the amount equal to tax at the SEIS rate for the current tax year on —
a
the amount or, as the case may be, the sum of the amounts subscribed for shares issued in that year in respect of which the individual is eligible for and claims SEIS relief, or
b
if less, £100,000.
3
In this Part “the SEIS rate” means 50%.
4
The tax reduction is given effect at Step 6 of the calculation in section 23.
5
If in the case of any issue of shares —
a
which are issued in the current tax year, and
b
in respect of the amount subscribed for which the individual is eligible for SEIS relief,
the individual so claims, subsections (1) and (2) apply as if, in respect of such part of that issue as may be specified in the claim, the shares had been issued in the preceding tax year, and the individual’s liability to tax for both tax years is determined accordingly.
Miscellaneous
Meaning of “period A” and “period B”
257AC
1
This section applies for the purposes of this Part in relation to any shares issued by a company.
2
“Period A” means the period —
a
beginning with the incorporation of the company, and
b
ending immediately before the termination date relating to the shares.
3
“Period B” means the period —
a
beginning with the issue of the shares, and
b
ending immediately before the termination date relating to the shares.
4
In this section “the termination date”, in relation to the shares, means the third anniversary of the date on which the shares are issued.
Overview of other Chapters of Part
257AD
In this Part —
a
Chapter 5 provides for the attribution of SEIS relief to shares and the making of claims for such relief,
b
Chapter 6 provides for SEIS relief to be withdrawn or reduced in the circumstances mentioned in that Chapter,
c
Chapter 7 makes provision with respect to the procedure for the withdrawal or reduction of SEIS relief, and
d
Chapter 8 contains supplementary and general provisions.
CGT reliefs relating to SEIS
257AE
1
Section 150E of TCGA 1992 makes provision about gains or losses on the disposal of shares to which SEIS relief is attributable.
2
Schedule 5BB to that Act provides relief in respect of the re-investment under SEIS of the proceeds of assets disposed of in circumstances where there would otherwise be a chargeable gain.
CHAPTER 2
The investor
Introduction
Overview of Chapter
257B
The investor is a qualifying investor in relation to the relevant shares if the requirements of this Chapter are met as to —
a
no employee investors (see section 257BA ),
b
no substantial interest in the issuing company (see section 257BB ),
c
no related investment arrangements (see section 257BC ),
d
no linked loans (see section 257BD ), and
e
no tax avoidance (see section 257BE ).
The requirements
The no employee investors requirement
257BA
1
Neither the investor nor an associate of the investor may, at any time during period B, be an employee of the issuing company or of any qualifying subsidiary of that company.
2
For this purpose a person is not to be treated as an employee of the issuing company, or of any qualifying subsidiary of that company, at any time when the person is a director of that company.
The no substantial interest in the issuing company requirement
257BB
The investor must not have a substantial interest in the issuing company at any time during period A.
The no related investment arrangements requirement
257BC
The investor (“P”) must not subscribe for the relevant shares as part of an arrangement which provides for another person to subscribe for shares in another company in which P, or any other individual who is party to the arrangement, has a substantial interest.
The no linked loan requirement
257BD
1
No linked loan is to be made by any person, at any time in period A, to the investor or an associate of the investor.
2
In this section “linked loan” means any loan which —
a
would not have been made, or
b
would not have been made on the same terms,
if the investor had not subscribed for the relevant shares, or had not been proposing to do so.
3
References in this section to the making by any person of a loan to the investor or an associate of the investor include a reference —
a
to the giving by that person of any credit to the investor or any associate of the investor, and
b
to the assignment to that person of a debt due from the investor or any associate of the investor.
The no tax avoidance requirement
257BE
The relevant shares must be subscribed for by the investor for genuine commercial reasons, and not as part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax.
Meaning of substantial interest in a company
Persons with a substantial interest in a company
257BF
1
An individual has a substantial interest in a company if the individual directly or indirectly possesses or is entitled to acquire more than 30% of —
a
the ordinary share capital of the company or any subsidiary of the company,
b
the issued share capital of the company or any such subsidiary, or
c
the voting power in the company or any such subsidiary.
2
An individual has a substantial interest in a company if the individual directly or indirectly possesses or is entitled to acquire such rights as would —
a
in the event of the winding up of the company or any subsidiary of the company, or
b
in any other circumstances,
entitle the individual to receive more than 30% of the assets of the company or subsidiary (“the company in question”) which would then be available for distribution to equity holders of the company in question.
3
For the purposes of subsection (2) —
a
the persons who are equity holders of the company in question, and
b
the percentage of the assets of the company in question to which the individual would be entitled,
are determined in accordance with Chapter 6 of Part 5 of CTA 2010.
4
In making that determination —
a
references in section 166 of that Act to company A are to be read as references to an equity holder, and
b
references in that section to a winding up are to be read as including a reference to any other circumstances in which assets of the company in question are available for distribution to its equity holders.
5
An individual does not have a substantial interest in a company merely because one or more shares in the company are held by the individual or by an associate of the individual, at a time when the company —
a
has not issued any shares other than subscriber shares, and
b
has not begun to carry on, or make preparations for carrying on, any trade or business.
6
An individual has a substantial interest in a company if the individual has control of the company or any subsidiary of that company.
7
For the purposes of this section —
a
an individual is treated as entitled to acquire anything which the individual is entitled to acquire at a future date or will at a future date be entitled to acquire, and
b
there is attributed to any individual any rights or powers of any other person who is an associate of the individual.
8
In this section “subsidiary”, in relation to a company, means a company which at any time in period A is a 51% subsidiary of the company, whether or not it is such a subsidiary while the individual concerned has, or is entitled to acquire, such capital, voting power, rights or control as are mentioned in this section.
CHAPTER 3
General requirements
Introduction
Overview of Chapter
257C
The general requirements are met in respect of the relevant shares if the requirements of this Chapter are met as to —
a
the shares (see section 257CA ),
b
the purpose of the issue (see section 257CB ),
c
the spending of the money raised (see section 257CC ),
d
no pre-arranged exits (see section 257CD ),
e
no tax avoidance (see section 257CE ), and
f
no disqualifying arrangements (see section 257CF).
The requirements
The shares requirement
257CA
1
The relevant shares must meet —
a
the requirements of subsection (2), and
b
unless they are bonus shares, the requirements of subsection (4).
2
Shares meet the requirements of this subsection if they are ordinary shares which do not, at any time during period B, carry —
a
any present or future preferential right to dividends that is within subsection (3),
b
any present or future preferential right to a company’s assets on its winding up, or
c
any present or future right to be redeemed.
3
A preferential right to dividends carried by a share in a company is within this subsection if —
a
the amount of any dividends payable pursuant to the right, or the date or dates on which they are payable, depend to any extent on a decision of the company, the holder of the share or any other person, or
b
the amount of any dividends that become payable at any time pursuant to the right includes any amount that became payable at any earlier time pursuant to the right but has not been paid.
4
Shares meet the requirements of this subsection if they —
a
are subscribed for wholly in cash, and
b
are fully paid up at the time they are issued.
5
Shares are not fully paid up for the purposes of subsection (4)(b) if there is any undertaking to pay cash to any person at a future date in respect of the acquisition of the shares.
The purpose of the issue requirement
257CB
1
The relevant shares (other than any of them which are bonus shares) must be issued in order to raise money for the purposes of a qualifying business activity carried on, or to be carried on, by the issuing company or a qualifying 90% subsidiary of that company.
2
For the meaning of “qualifying business activity” see section 257HG .
The spending of the money raised requirement
257CC
1
The requirement of this section is that before the end of period B all of the money raised by the issue of the relevant shares (other than any of them which are bonus shares) is spent for the purposes of the qualifying business activity for which it was raised.
2
Spending money on the acquisition of shares or stock in a company does not of itself amount to spending the money for the purposes of a qualifying business activity.
3
This requirement does not fail to be met merely because an amount of money which is not significant is spent for another purpose or remains unspent at the end of period B.
The no pre-arranged exits requirement
257CD
1
The issuing arrangements for the relevant shares must not include —
a
arrangements with a view to the subsequent repurchase, exchange or other disposal of those shares or of other shares in or securities of the issuing company,
b
arrangements for or with a view to the cessation of any trade which is being or is to be or may be carried on by the issuing company or a person connected with that company,
c
arrangements for the disposal of, or of a substantial amount (in terms of value) of, the assets of the issuing company or of a person connected with that company, or
d
arrangements the main purpose of which, or one of the main purposes of which, is (by means of any insurance, indemnity or guarantee or otherwise) to provide partial or complete protection for persons investing in shares in the issuing company against what would otherwise be the risks attached to making the investment.
2
The arrangements referred to in subsection (1)(a) do not include any arrangements with a view to such an exchange of shares, or shares and securities, as is mentioned in section 257HB (1).
3
The arrangements referred to in subsection (1)(b) and (c) do not include any arrangements applicable only on the winding up of a company except in a case where —
a
the issuing arrangements include arrangements for the company to be wound up, or
b
the arrangements are applicable to the winding up of the company otherwise than for genuine commercial reasons.
4
The arrangements referred to in subsection (1)(d) do not include any arrangements which are confined to the provision —
a
for the issuing company itself, or
b
if the issuing company is a parent company that meets the trading requirement in section 257DA (2)(b), for the issuing company itself, for the issuing company itself and one or more of its subsidiaries or for one or more of its subsidiaries,
of any such protection against risks arising in the course of carrying on its business as might reasonably be expected to be provided in normal commercial circumstances.
5
In this section “the issuing arrangements” means —
a
the arrangements under which the shares are issued to the individual,
b
any arrangements made, before the shares were issued, in relation to or in connection with the issue, and
c
if before the shares were issued information on pre-arranged exits was made available to any prospective subscribers for shares in the issuing company, any arrangements made during period B.
6
For the purposes of subsection (5)(c) “information on pre-arranged exits” means any information indicating the possibility of making, during period B, arrangements of the kind described in paragraph (a), (b), (c) or (d) of subsection (1).
The no tax avoidance requirement
257CE
The relevant shares must be issued for genuine commercial reasons, and not as part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax.
The no disqualifying arrangements requirement
257CF
1
The relevant shares must not be issued, nor any money raised by the issue spent, in consequence or anticipation of, or otherwise in connection with, disqualifying arrangements.
2
Arrangements are “disqualifying arrangements” if —
a
the main purpose, or one of the main purposes, of the arrangements is to secure —
i
that a qualifying business activity is or will be carried on by the issuing company or a qualifying 90% subsidiary of that company, and
ii
that one or more persons (whether or not including any party to the arrangements) may obtain relevant tax relief in respect of shares issued by the issuing company which raise money for the purposes of that activity or that such shares may comprise part of the qualifying holdings of a VCT,
b
that activity is the relevant qualifying business activity, and
c
one or both of conditions A and B are met.
3
Condition A is that, as a (direct or indirect) result of the money raised by the issue of the relevant shares being spent as required by section 257CC , an amount representing the whole or the majority of the amount raised is, in the course of the arrangements, paid to or for the benefit of a relevant person or relevant persons.
4
Condition B is that, in the absence of the arrangements, it would have been reasonable to expect that the whole or greater part of the component activities of the relevant qualifying business activity would have been carried on as part of another business by a relevant person or relevant persons.
5
For the purposes of this section it is immaterial whether the issuing company is a party to the arrangements.
6
In this section —
“component activities” means —
if the relevant qualifying business activity is activity A (see section 257HG (2)), the carrying on of a qualifying trade, or preparing to carry on such a trade, which constitutes that activity, and
if the relevant qualifying business activity is activity B (see section 257HG (4)), the carrying on of research and development which constitutes that activity;
“qualifying holdings”, in relation to the issuing company, is to be construed in accordance with section 286 (VCTs: qualifying holdings);
“relevant person” means a person who is a party to the arrangements or a person connected with such a party;
“relevant qualifying business activity” means the activity for the purposes of which the issue of the relevant shares raised money;
“relevant tax relief”, in respect of shares, means one or more of the following —
SEIS relief in respect of the shares;
EIS relief in respect of the shares;
relief under Chapter 6 of Part 4 (losses on disposal of shares) in respect of the shares;
relief under section 150A or 150E of TCGA 1992 (enterprise investment scheme) in respect of the shares;
relief under Schedule 5B to that Act (enterprise investment scheme: re-investment) in consequence of which deferral relief is attributable to the shares (see paragraph 19(2) of that Schedule);
relief under Schedule 5BB to that Act (seed enterprise investment scheme: re-investment) in consequence of which SEIS re-investment relief is attributable to the shares (see paragraph 4 of that Schedule).
CHAPTER 4
The issuing company
Introduction
Overview of Chapter
257D
The issuing company is a qualifying company in relation to the relevant shares if the requirements of this Chapter are met as to —
a
trading (see section 257DA ),
b
the issuing company’s carrying on of the qualifying business activity (see section 257DC ),
c
UK permanent establishment (see section 257DD ),
d
financial health (see section 257DE ),
e
unquoted status (see section 257DF ),
f
control and independence (see 257DG ),
g
no partnerships (see section 257DH ),
h
gross assets (see section 257DI ),
i
number of employees (see section 257DJ ),
j
no previous other risk capital scheme investments (see section 257DK ),
k
the amount raised through the SEIS (see section 257DL ),
l
qualifying subsidiaries (see section 257DM ), and
m
property managing subsidiaries (see section 257DN ).
The requirements
The trading requirement
257DA
1
The issuing company must meet the trading requirement throughout period B.
2
The trading requirement is that —
a
the company, ignoring any incidental purposes, exists wholly for the purpose of carrying on one or more new qualifying trades (see section 257HF ), or
b
the company is a parent company and the business of the group does not consist wholly or as to a substantial part in the carrying on of non-qualifying activities.
3
If the company intends that one or more other companies should become its qualifying subsidiaries with a view to their carrying on one or more new qualifying trades —
a
the company is treated as a parent company for the purposes of subsection (2)(b), and
b
the reference in subsection (2)(b) to the group includes the company and any existing or future company that will be its qualifying subsidiary after the intention in question is carried into effect.
This subsection does not apply at any time after the abandonment of that intention.
4
For the purpose of subsection (2)(b) the business of the group means what would be the business of the group if the activities of the group companies taken together were regarded as one business.
5
For the purpose of determining the business of a group, activities are ignored so far as they are activities carried on by a mainly trading subsidiary otherwise than for its main purpose.
6
For the purposes of determining the business of a group, activities of a group company are ignored so far as they consist in —
a
the holding of shares in or securities of a qualifying subsidiary of the parent company,
b
the making of loans to another group company,
c
the holding and managing of property used by a group company for the purpose of one or more qualifying trades carried on by a group company, or
d
the holding and managing of property used by a group company for the purpose of research and development from which it is intended —
i
that a qualifying trade to be carried on by a group company will be derived, or
ii
that a qualifying trade carried on or to be carried on by a group company will benefit.
7
Any reference in subsection (6)(d)(i) or (ii) to a group company includes a reference to any existing or future company which will be a group company at any future time.
8
Where period B begins after the incorporation of the company, the requirement of subsection (2) must have been complied with since its incorporation; but for the purposes of that subsection any interval between the incorporation of the company and the time when it commenced business is to be ignored.
9
In this section —
“incidental purposes” means purposes having no significant effect (other than in relation to incidental matters) on the extent of the activities of the company in question;
“mainly trading subsidiary” means a qualifying subsidiary which, apart from incidental purposes, exists wholly for the purpose of carrying on one or more qualifying trades, and any reference to the main purpose of such a subsidiary is to be read accordingly;
“non-qualifying activities” means —
excluded activities (within the meaning of sections 192 to 199), and
activities (other than research and development) carried on otherwise than in the course of a trade;
“qualifying trade” has the same meaning as in Part 5 (see sections 189 and 192 to 200).
Ceasing to meet trading requirement: administration etc
257DB
1
A company is not regarded as ceasing to meet the trading requirement merely because of anything done in consequence of the company or any of its subsidiaries being in administration or receivership.
This is subject to subsections (2) and (3).
2
Subsection (1) applies only if —
a
the entry into administration or receivership, and
b
everything done as a result of the company concerned being in administration or receivership,
is for genuine commercial reasons, and is not part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax.
3
A company ceases to meet the trading requirement if before the end of period B —
a
a resolution is passed, or an order is made, for the winding up of the company or any of its subsidiaries (or, in the case of a winding up otherwise than under the Insolvency Act 1986 or the Insolvency (Northern Ireland) Order 1989, any other act is done for the like purpose), or
b
the company or any of its subsidiaries is dissolved without winding up.
This is subject to subsection (4).
4
Subsection (3) does not apply if the winding up or dissolution is for genuine commercial reasons, and is not part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax.
The issuing company to carry on the qualifying business activity
257DC
1
The requirement of this section is met in relation to the issuing company if, at no time in period B, is any of the following —
a
the relevant new qualifying trade,
b
relevant preparation work (if any), and
c
relevant research and development (if any),
carried on by a person other than the issuing company or a qualifying 90% subsidiary of that company.
2
Subsection (3) has effect for the purpose of determining whether the requirement of this section is met in relation to the issuing company in a case where relevant preparation work is carried out by that company or a qualifying 90% subsidiary of that company.
3
The carrying on of the relevant new qualifying trade by a company other than the issuing company or a subsidiary of that company is to be ignored if it takes place at any time in period B before the issuing company or any qualifying 90% subsidiary of that company begins to carry on that trade.
4
The requirement of this section is not regarded as failing to be met in relation to the issuing company if, merely because of any act or event within subsection (5), the relevant new qualifying trade —
a
ceases to be carried on in period B by the issuing company or any qualifying 90% subsidiary of that company, and
b
is subsequently carried on in that period by a person who is not at any time in period A connected with the issuing company.
5
The following are acts and events within this subsection —
a
anything done as a consequence of the issuing company or any other company being in administration or receivership, and
b
the issuing company or any other company being wound up, or dissolved without being wound up.
6
Subsection (4) applies only if —
a
the entry into administration or receivership, and everything done as a consequence of the company concerned being in administration or receivership, or
b
the winding up or dissolution,
is for genuine commercial reasons, and is not part of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax.
7
In this section —
“the relevant new qualifying trade” means the new qualifying trade which is the subject of that qualifying business activity;
“relevant preparation work” means preparations within section 257HG (2)(b) which are the subject of the qualifying business activity mentioned in section 257CB ;
“relevant research and development” means —
research and development within section 257HG (3) which is the subject of that qualifying business activity, and
any other preparations for the carrying on of the new qualifying trade which is the subject of that activity.
The UK permanent establishment requirement
257DD
1
The issuing company must meet the UK permanent establishment requirement throughout period B.
2
The UK permanent establishment requirement is that the issuing company has a permanent establishment in the United Kingdom.
The financial health requirement
257DE
1
The issuing company must meet the financial health requirement at the beginning of period B.
2
The financial health requirement is that the issuing company is not in difficulty.
3
The issuing company is “in difficulty” if it is reasonable to assume that it would be regarded as a firm in difficulty for the purposes of the Community Guidelines on State Aid for Rescuing and Restructuring Firms in Difficulty (2004/C 244/02).
The unquoted status requirement
257DF
1
At the beginning of period B —
a
the issuing company must be an unquoted company,
b
there must be no arrangements in existence for the issuing company to cease to be an unquoted company, and
c
there must be no arrangements in existence for the issuing company to become a subsidiary of another company (“the new company”) by virtue of an exchange of shares, or shares and securities, if —
i
section 257HB applies in relation to the exchange, and
ii
arrangements have been made with a view to the new company ceasing to be an unquoted company.
2
In this section “unquoted company” means a company none of whose shares, stocks, debentures or other securities are marketed to the general public.
3
For the purposes of subsection (2), shares, stock, debentures or other securities are marketed to the general public if they are —
a
listed on a recognised stock exchange,
b
listed on a designated exchange in a country outside the United Kingdom, or
c
dealt in outside the United Kingdom by such means as may be designated.
4
In subsection (3)(b) and (c) “designated” means designated by an order made by the Commissioners for Her Majesty’s Revenue and Customs for the purposes of that provision.
5
An order made for the purposes of subsection (3)(b) may designate an exchange by name, or by reference to any class or description of exchanges, including a class or description framed by reference to any authority or approval given in a country outside the United Kingdom.
6
The arrangements referred to in subsection (1)(b) and (c)(ii) do not include arrangements in consequence of which any shares, stocks, debentures or other securities of the company are at any subsequent time —
a
listed on a stock exchange that is a recognised stock exchange by virtue of an order made under section 1005(1)(b), or
b
listed on an exchange, or dealt in by any means, designated by an order made for the purposes of subsection (3)(b) or (c),
if the order was made after the beginning of period B.
The control and independence requirement
257DG
1
The control element of the requirement is that —
a
the issuing company must not at any time in period A control (whether on its own or together with any person connected with it) any company which is not a qualifying subsidiary of the issuing company, and
b
no arrangements must be in existence at any time in that period by virtue of which the issuing company could fail to meet paragraph (a) (whether during that period or otherwise).
2
The independence element of the requirement is that —
a
the issuing company must not at any time in period A be under the control of any other company (whether on its own or together with any person connected with it), and
b
no arrangements must be in existence at any time in that period by virtue of which the issuing company could fail to meet paragraph (a) (whether during that period or otherwise).
3
This section is subject to section 257HB (4) (exchange of shares).
The no partnerships requirement
257DH
1
Neither the issuing company nor any qualifying 90% subsidiary of that company may, at any time during period A, be a member of a partnership.
2
“Partnership” includes —
a
a limited liability partnership, and
b
an entity established under the law of a territory outside the United Kingdom of a similar character to a partnership,
and “member”, in relation to a partnership, is to be read accordingly.
The gross assets requirement
257DI
1
In the case of relevant shares issued by a single company, the value of the company’s assets must not exceed £200,000 immediately before the relevant shares are issued.
2
In the case of relevant shares issued by a parent company, the value of the group assets must not exceed £200,000 immediately before the relevant shares are issued.
3
For the purposes of this section the value of the group assets is the sum of the values of the gross assets of each of the members of the group, ignoring any that consist in rights against, or shares in or securities of, another member of the group.
The number of employees requirement
257DJ
1
If the issuing company is a single company, the full-time equivalent employee number for it must be less than 25 when the relevant shares are issued.
2
If the issuing company is a parent company, the sum of —
a
the full-time equivalent employee number for it, and
b
the full-time equivalent employee numbers for each of its qualifying subsidiaries,
must be less than 25 when the relevant shares are issued.
3
The full-time equivalent employee number for a company is calculated as follows —
Step 1
Find the number of full-time employees of the company.
Step 2
Add, for each employee of the company who is not a full-time employee, such fraction as is just and reasonable.
The result is the full-time equivalent employee number.
4
In this section references to an employee —
a
include a director, but
b
do not include —
i
an employee on maternity or paternity leave, or
ii
a student on vocational training.
No previous other risk capital scheme investments
257DK
1
The requirement of this section is that —
a
no EIS investment or VCT investment is or has been made in the issuing company on or before the day on which the relevant shares are issued, and
b
no EIS investment or VCT investment has been made on or before that day in a company which at the time the relevant shares are issued is a qualifying subsidiary of the issuing company.
2
An “EIS investment” is made in the company if the company —
a
issues shares (money having been subscribed for them), and
b
(at any time) provides a compliance statement under section 205 in respect of the shares;
and the EIS investment is regarded as made when the shares are issued.
3
A “VCT investment” is made in the company if an investment (of any kind) in the company is made by a VCT.
The amount raised through the SEIS
257DL
1
The sum of the following amounts must not exceed £150,000 —
a
the amount of the SEIS investment made in the issuing company which includes the relevant shares (“the current investment”),
b
the amount of other SEIS investments made in the issuing company on the same day as the current investment,
c
the amount of any SEIS investments made in the issuing company during the period of 3 years ending immediately before that day, and
d
the total of any other aid which —
i
is granted to the issuing company on the day the current investment is made or during that period, and
ii
disregarding any SEIS investment within paragraph (a) or (b), would be de minimis aid.
2
An “SEIS investment” is made in a company if —
a
the company issues shares (money having been subscribed for them), and
b
(at any time) the company provides a compliance statement under section 257ED in respect of the shares;
and an SEIS investment is made on the day when the shares are issued, and the amount of the investment is the amount subscribed for the shares.
3
“De minimis aid” means de minimis aid within the meaning of Article 2 of Commission Regulation (EC) No 1998/2006 (de minimis aid).
The amount of the aid is the amount of the grant, or if the aid is not in the form of a grant, the gross grant equivalent amount (within the meaning of that Regulation).
4
Subsection (5) applies where, in relation to the current investment —
a
the sum of the amounts mentioned in subsection (1) exceeds £150,000, but
b
the sum of the amounts in paragraphs (c) and (d) of that subsection does not exceed £150,000.
5
In the case of the current investment and each other SEIS investment made in the issuing company on the same day (if any) —
a
the appropriate proportion of the shares in the issue constituting the investment and the remainder are to be treated as two separate issues for the purposes of this Part, and
b
the requirement in subsection (1) is to be treated as met in respect of the issue comprised of the appropriate proportion of the shares in the issue, but not in respect of the issue comprised of the remaining shares.
6
“The appropriate proportion” of the shares is —
A − B C
where —
A is £150,000,
B is the sum of the amounts in paragraphs (c) and (d) of subsection (1), and
C is the sum of the amounts in paragraphs (a) and (b) of that subsection.
The qualifying subsidiaries requirement
257DM
Any subsidiary that the issuing company has at any time in period B must be a qualifying subsidiary of the company.
The property managing subsidiaries requirement
257DN
1
Any property managing subsidiary that the issuing company has at any time in period B must be a qualifying 90% subsidiary of the company.
2
“Property managing subsidiary” means a subsidiary of the company whose business consists wholly or mainly in the holding or managing of land or any property deriving its value from land.
3
In subsection (2) references to property deriving its value from land include —
a
any shareholding in a company deriving its value directly or indirectly from land,
b
any interest in settled property deriving its value directly or indirectly from land, and
c
any option, consent or embargo affecting the disposition of land.
CHAPTER 5
Attribution and claims for SEIS relief
Attribution
Attribution of SEIS relief to shares
257E
1
References in this Part, in relation to any individual, to the SEIS relief attributable to any shares or issue of shares are to be read as references to any reduction made in the individual’s liability to income tax that is attributed to those shares or that issue in accordance with this section.
This is subject to the provisions of Chapters 6 and 7 providing for the withdrawal or reduction of SEIS relief.
2
If an individual’s liability to income tax is reduced in any tax year, then —
a
if the reduction is obtained because of one issue of shares, the amount of the tax reduction is attributed to that issue, and
b
if the reduction is obtained because of two or more issues of shares, the amount of the reduction —
i
is apportioned between those issues in the same proportions as the amounts claimed by the individual in respect of each issue, and
ii
is attributed to those issues accordingly.
3
If under this section an amount of any reduction of income tax is attributed to an issue of shares (“the original issue”), a proportionate part of that amount is attributed to each share in respect of which the claim is made.
4
If corresponding bonus shares are issued to the individual in respect of any shares (“the original shares”) to which SEIS relief is attributed —
a
a proportionate part of the total amount attributed to the original shares immediately before the bonus shares are issued is attributed to each of the shares in the holding comprising the original shares and the bonus shares, and
b
after the issue of the bonus shares, this Part applies as if the original issue had included those shares.
5
In subsection (4) “corresponding bonus shares” means bonus shares which are in the same company, of the same class, and carry the same rights as the original shares.
6
If section 257AB (1) and (2) applies in the case of any issue of shares as if part of the issue had been issued in a previous tax year, this section has effect as if that part and the remainder were separate issues of shares (and that part had been issued on a day in the previous tax year).
7
If, at a time when SEIS relief is attributable to, or to any part of, any issue of shares, the relief falls to be withdrawn or reduced under Chapters 6 and 7 —
a
if it falls to be withdrawn, the relief attributable to each of the shares in question is reduced to nil, and
b
if it falls to be reduced by any amount, the relief attributable to each of the shares in question is reduced by a proportionate part of that amount.
Claims: general
Time for making claims for SEIS relief
257EA
1
A claim for SEIS relief in respect of shares issued by a company in any tax year may not be made later than the fifth anniversary of the normal self-assessment filing date for the tax year.
2
If section 257AB (1) and (2) applies in the case of any issue of shares as if part of the issue had been issued in a previous tax year, this section has effect as if that part and the remainder were separate issues of shares (and that part had been issued on a day in the previous tax year).
Entitlement to claim
257EB
1
The investor is entitled to make a claim for SEIS relief in respect of the amount subscribed by the investor for the relevant shares if the investor has received from the issuing company a compliance certificate in respect of those shares.
2
For the purposes of PAYE regulations no regard is to be had to SEIS relief unless a claim for it has been duly made.
3
No application may be made under section 55(3) or (4) of TMA 1970 (application for postponement of payment of tax pending appeal) on the ground that the investor is eligible for SEIS relief unless a claim for the relief has been duly made by the investor.
Claims: supporting documents
Compliance certificates
257EC
1
A “compliance certificate” is a certificate which —
a
is issued by the issuing company in respect of the relevant shares,
b
states that, except so far as they fall to be met by or in relation to the investor, the requirements for SEIS relief (see section 257AA ) are for the time being met in relation to those shares, and
c
is in such form as the Commissioners for Her Majesty’s Revenue and Customs may direct.
2
Before issuing a compliance certificate in respect of the relevant shares, the issuing company must provide an officer of Revenue and Customs with a compliance statement in respect of the issue of shares which includes the relevant shares.
3
The issuing company must not issue a compliance certificate without the authority of an officer of Revenue and Customs.
4
If the issuing company, or a person connected with the issuing company, has given notice to an officer of Revenue and Customs under section 257GF , a compliance certificate must not be issued unless the authority is given or renewed after the receipt of the notice.
5
If an officer of Revenue and Customs —
a
has been requested to give or renew an authority to issue a compliance certificate, and
b
has decided whether or not to do so,
the officer must give notice of the officer’s decision to the issuing company.
Compliance statements
257ED
1
A “compliance statement” is a statement, in respect of an issue of shares, to the effect that, except so far as they fall to be met by or in relation to the individuals to whom shares included in that issue have been issued, the requirements for SEIS relief (see section 257AA ) —
a
are for the time being met in relation to the shares to which the statement relates, and
b
have been so met at all times since the shares were issued.
2
In determining for the purposes of subsection (1) whether the requirements for SEIS relief are met at any time in relation to the issue of shares, references in this Part to the relevant shares are read as references to the shares included in the issue.
3
A compliance statement must not be made in respect of an issue of shares before at least one of the following conditions is met —
a
at least 70% of the money raised by the issue has been spent for the purposes of the qualifying business activity for which it was raised;
b
the new qualifying trade which constitutes the qualifying business activity or to which that activity relates has been carried on by the issuing company or a qualifying 90% subsidiary of that company for at least 4 months.
4
A compliance statement must be in such form as the Commissioners for Her Majesty’s Revenue and Customs direct and must —
a
state which of the conditions in subsection (3) is met at the time the statement is made,
b
contain such additional information as the Commissioners reasonably require, including in particular information relating to the persons who have requested the issue of compliance certificates,
c
contain a declaration that the statement is correct to the best of the issuing company’s knowledge and belief, and
d
contain such other declarations as the Commissioners may reasonably require.
Appeal against refusal to authorise compliance certificate
257EE
For the purposes of the provisions of TMA 1970 relating to appeals, the refusal of an officer of Revenue and Customs to authorise the issue of a compliance certificate is taken to be a decision disallowing a claim by the issuing company.
Penalties for fraudulent certificate or statement etc
257EF
The issuing company is liable to a penalty not exceeding £3,000 if —
a
it issues a compliance certificate, or provides a compliance statement, which is made fraudulently or negligently, or
b
it issues a compliance certificate in contravention of section 257EC (3) or (4).
Power to amend sections 257EC and 257ED
257EG
1
The Treasury may by order make such amendments of sections 257EC and 257ED as they consider appropriate.
2
An order under this section may include incidental, supplemental, consequential and transitional provision and savings.
CHAPTER 6
Withdrawal or reduction of SEIS relief
Introduction
Overview of Chapter
257F
This Chapter provides for SEIS relief to be withdrawn or reduced under —
a
section 257FA (disposal of shares),
b
section 257FC (call options),
c
section 257FD (put options),
d
section 257FE (value received by the investor),
e
section 257FP (acquisition of a trade or trading asset),
f
section 257FQ (acquisition of share capital), and
g
section 257FR (relief subsequently found not to have been due).
Disposal of shares
257FA
1
This section applies if —
a
the investor disposes of any of the relevant shares,
b
the disposal takes place before period B ends, and
c
SEIS relief is attributable to the shares.
2
If the disposal is not made by way of a bargain made at arm’s length, the SEIS relief attributable to the shares must be withdrawn.
3
If the disposal is made by way of a bargain made at arm’s length, the SEIS relief attributable to the shares must —
a
if it is greater than the amount given by the formula set out below, be reduced by that amount, and
b
in any other case, be withdrawn.
The formula is —
R × SEISR
where —
R is the amount or value of the consideration received by the investor for the shares, and
SEISR is the SEIS rate.
4
This section does not apply to a disposal of shares to which an amount of SEIS relief is attributable if —
a
the disposal was made by an individual (“A”) to another individual (“B”), and
b
A and B were married to, or were civil partners of, each other and living together at the time of the disposal.
5
Section 257HA contains rules for determining which shares of any class are treated as disposed of for the purposes of this section if the investor disposes of some but not all of the shares of that class which are held by the investor.
6
Nothing in this section applies to a disposal of shares occurring as a result of the investor’s death.
Cases where maximum SEIS relief not obtained
257FB
1
If the investor’s liability to income tax is reduced for any tax year in respect of any issue of shares and —
a
the amount of the reduction (“A”), is less than
b
the amount (“B”) which is equal to tax at the SEIS rate on the amount on which the investor claims SEIS relief in respect of the shares,
section 257FA (3) has effect in relation to a disposal of any of the shares as if the amount or value referred to as “R” were reduced by multiplying it by the fraction —
A B
2
If section 257AB (1) and (2) applies in the case of any issue of shares as if part of the issue had been issued in a previous tax year, subsection (1) has effect as if that part and the remainder were separate issues of shares (and that part had been issued on a day in the previous tax year).
3
If the amount of SEIS relief attributable to any of the relevant shares has been reduced before the SEIS relief was obtained, the amount referred to in subsection (1) as A is to be treated for the purposes of that subsection as the amount that it would have been without that reduction.
4
Subsection (3) does not apply to a reduction of SEIS relief by virtue of section 257E (4) (attribution of SEIS relief if there is a corresponding issue of bonus shares).
Call options
257FC
1
This section applies if the investor grants an option which, if exercised, would bind the investor to sell any of the relevant shares.
2
The grant of the option is treated for the purposes of section 257FA as a disposal of the shares to which the option relates.
3
Nothing in this section prejudices section 257CD (no pre-arranged exits).
Put options
257FD
1
This section applies if, at any time in period A, a person grants the investor an option which, if exercised, would bind the grantor to purchase any of the relevant shares.
2
Any SEIS relief attributable to the shares to which the option relates must be withdrawn.
3
For the purposes of subsection (2) the shares to which an option relates are those which, if —
a
the option were exercised immediately after the grant, and
b
any shares in the issuing company acquired by the investor after the grant were disposed of immediately after being acquired,
would be treated for the purposes of section 257FA as disposed of in pursuance of the option.
Value received by investor
Value received by the investor
257FE
1
This section applies if the investor receives any value from the issuing company at any time in period A relating to the relevant shares.
2
Any SEIS relief attributable to the shares must —
a
if it is greater than the amount given by the formula set out below, be reduced by that amount, and
b
in any other case, be withdrawn.
The formula is —
R × SEISR
where —
R is the amount of the value received by the investor, and
SEISR is the SEIS rate.
3
This section is subject to the following sections —
a
section 257FF (value received: receipts of insignificant value),
b
section 257FJ (value received where there is more than one issue of shares),
c
section 257FK (value received where part of share issue treated as made in previous tax year),
d
section 257FL (cases where maximum SEIS relief not obtained),
e
section 257FM (receipts of value by and from connected persons etc), and
f
section 257FN (receipt of replacement value).
Sections 257FJ to 257FL are to be applied in the order in which they appear in this Part.
4
Value received is to be ignored, for the purposes of this section, to the extent to which SEIS relief attributable to the shares has already been withdrawn or reduced on its account.
5
For the purposes of this section and sections 257FF to 257FO , an individual who acquires any relevant shares on such a transfer as is mentioned in section 257H (spouses or civil partners) is treated as the investor.
Value received: receipts of insignificant value
257FF
1
Section 257FE (2) does not apply if the receipt of value is a receipt of insignificant value.
This is subject to subsection (2).
2
If —
a
value is received (“the relevant receipt”) by the investor from the issuing company at any time in period A relating to the relevant shares,
b
the investor has received from the issuing company one or more receipts of insignificant value at a time or times —
i
during that period, but
ii
not later than the time of the relevant receipt, and
c
the total value of the receipts within paragraphs (a) and (b) is not an amount of insignificant value,
the investor is treated for the purposes of this Chapter as if the relevant receipt had been a receipt of an amount of value equal to that total amount.
3
A receipt does not fall within subsection (2)(b) if it has previously formed part of a total amount falling within subsection (2)(c).
Meaning of “a receipt of insignificant value”
257FG
1
This section applies for the purposes of section 257FF .
2
“A receipt of insignificant value” means a receipt of an amount of insignificant value, that is, an amount of value which —
a
is not more than £1,000, or
b
if it is more than £1,000, is insignificant in relation to the amount subscribed by the investor for the relevant shares.
This is subject to subsection (3).
3
If at any time in the period —
a
beginning 12 months before the issue of the relevant shares, and
b
ending at the end of the issue date,
repayment arrangements are in existence, no amount of value received by the investor is treated as a receipt of insignificant value.
4
For this purpose “repayment arrangements” means arrangements which provide for the investor to receive, or to be entitled to receive, any value from the issuing company at any time in period A relating to the relevant shares.
5
For the purposes of this section —
a
the references in this section to the investor include a reference to any person who at any time in period A relating to the relevant shares is an associate of the investor (whether or not that person is such an associate at the material time), and
b
the reference in subsection (4) to the issuing company includes a reference to a person who at any time in period A relating to the relevant shares is connected with that company (whether or not that person is so connected at the material time).
When value is received
257FH
1
This section applies for the purposes of sections 257FE (value received by the investor) and 257FJ (value received where there is more than one issue).
2
The investor receives value from the issuing company at any time when the issuing company —
a
repays, redeems or repurchases any of its share capital or securities which belong to the investor or makes any payment to the investor for giving up the investor’s right to any of the issuing company’s share capital or any security on its cancellation or extinguishment,
b
repays, in pursuance of any arrangements for or in connection with the acquisition of the shares in respect of which SEIS relief is claimed, any debt owed to the investor other than a debt which was incurred by the company —
i
on or after the date of issue of those shares, and
ii
otherwise than in consideration of the extinguishment of a debt incurred before that date,
c
makes to the investor any payment for giving up on its extinguishment the investor’s right to any debt, other than a debt in respect of a payment of the kind mentioned in subsection (3)(a) or (f) or an ordinary trade debt,
d
releases or waives any liability of the investor to the issuing company or discharges or undertakes to discharge any liability of the investor to a third person,
e
makes a loan or advance to the investor which has not been repaid in full before the issue of the shares in respect of which SEIS relief is claimed,
f
provides a benefit or facility for the investor,
g
transfers an asset to the investor for no consideration or for consideration less than its market value or acquires an asset from the investor for consideration greater than its market value, or
h
makes to the investor any other payment except —
i
an excluded payment, or
ii
a payment in discharge of an ordinary trade debt.
3
“Excluded payment” means —
a
any payment or reimbursement of travelling or other expenses, exclusively and necessarily incurred by the investor or an associate of the investor in the performance of the investor’s or associate’s duties as a director,
b
any interest which represents no more than a reasonable commercial return on money lent to the issuing company or any person connected with that company,
c
any dividend or other distribution which does not exceed a normal return on the investment,
d
any payment for the supply of goods which does not exceed their market value,
e
any payment of rent for any property occupied by the issuing company or a person connected with that company which does not exceed a reasonable and commercial rent for the property, and
f
any necessary and reasonable remuneration which meets the conditions in subsection (4).
4
The conditions are that the remuneration —
a
is paid for services rendered to the issuing company or a person connected with that company in the course of a trade or profession (not being secretarial or managerial services or services of a kind provided by the person to whom they are rendered), and
b
is taken into account in calculating for tax purposes the profits of that trade or profession.
5
For the purposes of subsection (2)(d) the issuing company is to be treated as having released or waived a liability if the liability is not discharged within 12 months of the time when it ought to have been discharged.
6
For the purposes of subsection (2)(e) the following is to be treated as if it were a loan made by the issuing company to the investor —
a
the amount of any debt (other than an ordinary trade debt) incurred by the investor to the issuing company, and
b
the amount of any debt due from the investor to a third party which has been assigned to the issuing company.
7
The investor also receives value from the issuing company if —
a
in respect of ordinary shares held by the investor any payment or asset is received in a winding up or in connection with a dissolution of the company, and
b
the winding up or dissolution falls within section 257DB (4) (no tax avoidance).
8
The investor also receives value from the issuing company if a person within subsection (9) —
a
purchases any of its share capital or securities which belong to the investor, or
b
makes any payment to the investor for giving up any right in relation to any of the company’s share capital or securities.
9
Those persons are —
a
any person who has a substantial interest in the company within the meaning of section 257BB ;
b
any employee of the issuing company;
c
any director of the issuing company.
10
If because of the investor’s disposal of shares in a company any SEIS relief attributable to those shares is withdrawn or reduced under section 257FA , the investor is not to be treated as receiving value from the company in respect of the disposal.
11
The investor is not to be treated as receiving value from the issuing company merely because of the payment to the investor, or any associate of the investor, of any remuneration for services rendered to that company as a director if the remuneration is reasonable remuneration.
12
For the purposes of subsection (11) —
a
the reference in that subsection to the payment of remuneration includes a reference to the provision of any benefit or facility, and
b
in the case of an individual who is both a director and an employee of a company, the reference in that subsection to services rendered to that company as a director includes a reference to services rendered to that company as an employee.
13
In this section —
a
“ordinary trade debt” means any debt for goods or services supplied in the ordinary course of a trade or business if any credit given —
i
is for not more than 6 months, and
ii
is not longer than that normally given to customers of the person carrying on the trade or business, and
b
any reference to a payment to an individual includes a payment made to the individual indirectly or to the individual’s order or for the individual’s benefit.
The amount of value received
257FI
In a case falling within a provision listed in column 1 of the following table, the amount of value received for the purposes of sections 257FE and 257FJ is given by the corresponding entry in column 2 of the table.
Provision The amount of value received
Section 257FH (2)(a), (b) or (c) The amount received by the investor or, if greater, the market value of the shares, securities or debt Section 257FH (2)(d) The amount of the liability Section 257FH (2)(e) The amount of the loan or advance, less the amount of any repayment made before the issue of the relevant shares Section 257FH (2)(f) The cost to the issuing company of providing the benefit or facility, less any consideration given for it by the investor Section 257FH (2)(g) The difference between the market value of the asset and the consideration (if any) given for it Section 257FH (2)(h) The amount of the payment Section 257FH (7) The amount of the payment or the market value of the asset Section 257FH (8) The amount received by the investor or, if greater, the market value of the shares or securities
Value received where there is more than one issue
257FJ
1
This section applies if —
a
two or more issues of shares in the issuing company have been made to the investor which include shares in respect of which the investor obtains SEIS relief, and
b
value is received by the investor at any time in the applicable periods for two or more of those issues.
2
Section 257FE (2) has effect in relation to the shares included in each of the issues referred to in subsection (1)(b) as if the amount of value referred to as “R” were reduced by multiplying it by the fraction —
A B
where —
A is the amount on which the investor obtains SEIS relief in respect of the shares included in the issue in question, and
B is the sum of that amount and the corresponding amount or amounts in respect of the other issue or issues.
3
For the purposes of subsection (1) “the applicable period” for an issue of shares is period A in relation to those shares.
Value received where part of issue treated as made in previous tax year
257FK
1
This section applies if —
a
section 257FE (2) applies to an issue of shares, and
b
section 257AB (1) and (2) (form and amount of SEIS relief) applies in the case of that issue as if part of the issue had been issued in a previous tax year.
2
This subsection explains how the calculation under section 257FE (2) is to be made.
Step 1
Apportion the amount referred to as “R” between the tax year in which the shares were issued and the previous tax year by multiplying that amount by the fraction —
A B
where —
A is the amount on which the investor obtains SEIS relief in respect of the shares treated as issued in the tax year in question, and
B is the sum of that amount and the corresponding amount in respect of the shares treated as issued in the other tax year.
Step 2
In relation to each of the amounts (“R1” and “R2”) so apportioned to the two tax years, calculate the amounts (“X1” and “X2”) that would be given by the formula if there were separate issues of shares in those tax years.
In calculating amounts X1 and X2, apply section 257FL if appropriate but do not apply section 257FJ .
Step 3
Add amounts X1 and X2 together.
The result is the required amount.
Cases where maximum SEIS relief not obtained
257FL
1
If the investor’s liability to income tax is reduced for any tax year in respect of any issue of shares and —
a
the amount of the reduction (“A”), is less than
b
the amount (“B”) which is equal to income tax at the SEIS rate on the amount on which the investor claims SEIS relief in respect of the shares,
section 257FE (2) has effect in relation to any value received as if the amount referred to as “R” were reduced by multiplying it by the fraction —
A B
2
If the amount of SEIS relief attributable to any of the relevant shares has been reduced before the SEIS relief was obtained, the amount referred to in subsection (1) as A is to be treated for the purposes of that subsection as the amount that it would have been without that reduction.
3
Subsection (2) does not apply to a reduction of SEIS relief by virtue of section 257E (4) (attribution of SEIS relief where there is a corresponding issue of bonus shares).
Receipts of value by and from connected persons etc
257FM
In sections 257FE , 257FF and 257FH to 257FJ —
a
any reference to a payment or transfer to the investor includes a reference to a payment or transfer made to the investor indirectly or to the investor’s order or for the investor’s benefit,
b
any reference to the investor includes a reference to an associate of the investor, and
c
any reference to the issuing company includes a reference to a person who at any time in period A relating to the relevant shares is connected with that company (whether or not that person is so connected at the material time).
Receipt of replacement value
257FN
1
If —
a
any SEIS relief attributable to the relevant shares would, in the absence of this section, be reduced or withdrawn under section 257FE because of a receipt of value within section 257FH (2), (7) or (8) (“the original value”),
b
the original supplier receives value (“replacement value”) from the original recipient and the receipt is a qualifying receipt, and
c
the amount of the replacement value is at least the amount of the original value,
section 257FE does not, because of the receipt of value, have effect to reduce or withdraw the SEIS relief.
This is subject to section 257FO (1) and (2).
2
For the purposes of this section —
“the original recipient” means the person who receives the original value;
“the original supplier” means the person from whom that value was received.
3
If the amount of the original value is, by virtue of section 257FJ , treated as reduced for the purposes of section 257FE (2) as it applies in relation to the relevant shares in question, the reference in subsection (1)(c) to the amount of the original value is to be read as a reference to the amount of that value ignoring the reduction.
4
A receipt of the replacement value is a qualifying receipt for the purposes of subsection (1) if it arises —
a
because of the original recipient doing one or more of the following —
i
making a payment to the original supplier, other than a payment within paragraph (c) or a payment to which subsection (5) applies,
ii
acquiring any asset from the original supplier for a consideration the amount or value of which is more than the market value of the asset,
iii
disposing of any asset to the original supplier for no consideration or for a consideration the amount or value of which is less than the market value of the asset,
b
if the receipt of the original value was within section 257FH (2)(d), because of an event the effect of which is to reverse the event which constituted the receipt of the original value, or
c
if the receipt of the original value was within section 257FH (8), because of the original recipient repurchasing the share capital or securities in question, or (as the case may be) re-acquiring the right in question, for a consideration the amount or value of which is at least the amount of the original value.
5
This subsection applies to —
a
any payment for any goods, services or facilities, provided (whether in the course of trade or otherwise) by —
i
the original supplier, or
ii
any other person who, at any time in period A relating to the relevant shares, is an associate of, or is connected with, that supplier (whether or not the other person is such an associate, or is so connected, at the material time),
which is reasonable in relation to the market value of those goods, services or facilities,
b
any payment of any interest which represents no more than a reasonable commercial return on any money lent to —
i
the original recipient, or
ii
any person who, at any time in period A relating to the relevant shares, is an associate of that recipient (whether or not the person is such an associate at the material time),
c
any payment for the acquisition of an asset which does not exceed its market value,
d
any payment, as rent for any property occupied by —
i
the original recipient, or
ii
any person who, at any time in period A relating to the relevant shares, is an associate of that recipient (whether or not the person is such an associate at the material time),
of an amount not exceeding a reasonable and commercial rent for the property,
e
any payment in discharge of an ordinary trade debt, and
f
any payment for shares in or securities of any company in circumstances that do not fall within subsection (4)(a)(ii).
6
For the purposes of this section, the amount of the replacement value is —
a
in a case within paragraph (a) of subsection (4), the sum of —
i
the amount of any payment within sub-paragraph (i) of that paragraph, and
ii
the difference between the market value of any asset to which sub-paragraph (ii) or (iii) of that paragraph applies and the amount or value of the consideration (if any) received for it,
b
in a case within subsection (4)(b), the same as the amount of the original value, and
c
in a case within subsection (4)(c), the amount or value of the consideration received by the original supplier.
Section 257FI applies for the purpose of determining the original value.
7
In this section —
a
any reference to a payment to a person (however expressed) includes a reference to a payment made to the person indirectly or to the person’s order or for the person’s benefit, and
b
“ordinary trade debt” has the meaning given by section 257FH (13).
Section 257FN: supplementary
257FO
1
The receipt of the replacement value by the original supplier is ignored for the purposes of section 257FN (1) to the extent to which it has previously been set (under that section) against a receipt of value to prevent any reduction or withdrawal of SEIS relief under section 257FE .
2
The receipt of the replacement value by the original supplier (“the event”) is ignored for the purposes of section 257FN if —
a
the event occurs before period A relating to the relevant shares,
b
if the event occurs after the time the original recipient receives the original value, it does not occur as soon after that time as is reasonably practicable in the circumstances, or
c
if an appeal has been brought by the investor against an assessment to withdraw or reduce any SEIS relief attributable to the relevant shares because of the receipt of the original value, the event occurs more than 60 days after the day on which the amount of relief which falls to be withdrawn has been finally determined.
But nothing in section 257FN or this section requires the replacement value to be received after the original value.
3
This subsection applies if —
a
the receipt of the replacement value by the original supplier is a qualifying receipt for the purposes of section 257FN (1),
b
in consequence of the receipt, any receipts of value are ignored for the purposes of section 257FE as that section applies in relation to the shares in question or any other shares subscribed for by the investor, and
c
the event which gives rise to the receipt is (or includes) a subscription for shares by —
i
the investor, or
ii
any person who at any time in period A relating to the relevant shares is an associate of the investor (whether or not the person is such an associate at the material time).
4
If subsection (3) applies, the person who subscribes for the shares is not to be eligible for any SEIS relief in relation to those shares or any other shares in the same issue.
5
In this section “the original recipient”, “the original supplier” and “replacement value” have the same meaning as in section 257FN .
Miscellaneous
Acquisition of trade or trading assets
257FP
1
Any SEIS relief attributable to any shares in a company held by an individual is withdrawn if —
a
at any time in period A, the company or any qualifying subsidiary —
i
begins to carry on as its trade, or as part of its trade, a trade which was previously carried on at any time in that period otherwise than by the company or any qualifying subsidiary, or
ii
acquires the whole, or the greater part, of the assets used for the purposes of a trade previously so carried on, and
b
the individual is a person, or one of a group of persons, to whom subsection (2) or (3) applies.
2
This subsection applies to any person or group of persons —
a
to whom an interest amounting in total to more than a half share in the trade (as previously carried on) belonged at any time in period A, and
b
who is a person or group of persons to whom such an interest in the trade carried on by the company belongs or has, at any such time, belonged.
3
This subsection applies to any person or group of persons who —
a
controls or, at any time in period A, has controlled the company, and
b
at any such time, controlled another company which previously carried on the trade.
4
For the purposes of subsection (2) —
a
for the purposes of determining the person to whom a trade belongs and, if a trade belongs to two or more persons, their respective shares in that trade —
i
apply section 941(6) of CTA 2010, and
ii
an interest in a trade belonging to a company may be treated in accordance with any of the options set out in section 942 of that Act, and
b
any interest, rights or powers of a person who is an associate of another person are treated as those of that other person.
5
In this section “trade” includes any business or profession, and references to a trade previously carried on include references to part of such a trade.
Acquisition of share capital
257FQ
1
Any SEIS relief attributable to any shares in a company held by an individual is withdrawn if —
a
the company comes to acquire all of the issued share capital of another company at any time in period A, and
b
the individual is a person, or one of a group of persons, to whom subsection (2) applies.
2
This subsection applies to any person or group of persons who —
a
controls or, at any time in period A, has controlled the company, and
b
at any such time, controlled the other company.
Relief subsequently found not to have been due
257FR
1
Any SEIS relief obtained by the investor which is subsequently found not to have been due must be withdrawn.
2
SEIS relief obtained by the investor in respect of the relevant shares may not be withdrawn on the ground —
a
that the requirements of sections 257CB and 257CC (the purpose of the issue and use of money raised requirements) are not met in respect of the shares, or
b
that the issuing company is not a qualifying company in relation to the shares (see Chapter 4),
unless the requirements of subsection (3) are met.
3
The requirements of this subsection are met if either —
a
the issuing company has given notice under section 257GF (information to be provided by issuing company etc) in relation to the relevant issue of shares, or
b
an officer of Revenue and Customs has given notice to that company stating the officer’s opinion that, because of the ground in question, the whole or any part of the SEIS relief obtained by any individual in respect of shares included in the relevant issue of shares was not due.
4
In this section “the relevant issue of shares” means the issue of shares in the issuing company which includes the relevant shares.
CHAPTER 7
Withdrawal or reduction of SEIS relief: procedure
Assessments and appeals
Assessments for the withdrawal or reduction of SEIS relief
257G
If any SEIS relief which has been obtained falls to be withdrawn or reduced under Chapter 6, it must be withdrawn or reduced by the making of an assessment to income tax for the tax year for which the relief was obtained.
Appeals against section 257FR(3)(b) notices
257GA
For the purposes of the provisions of TMA 1970 relating to appeals, the giving of notice by an officer of Revenue and Customs under section 257FR (3)(b) is taken to be a decision disallowing a claim by the issuing company.
Time limits for assessments
257GB
1
An officer of Revenue and Customs may —
a
make an assessment for withdrawing or reducing the SEIS relief attributable to any of the relevant shares, or
b
give a notice under section 257FR (3),
at any time not more than 6 years after the end of the relevant tax year.
2
In subsection (1) “the relevant tax year” means —
a
the tax year in which period B ends, or
b
the tax year in which the event which causes the SEIS relief to be withdrawn or reduced occurs,
whichever is the later.
3
Subsection (1) is without prejudice to section 36(1A) of TMA 1970 (loss of tax brought about deliberately etc).
Cases where assessments not to be made
257GC
1
No assessment for withdrawing or reducing SEIS relief in respect of shares issued to an individual may be made because of an event occurring after the individual’s death.
2
Subsection (3) applies if an individual has, by a disposal or disposals to which section 257FA (3) applies, disposed of all shares which —
a
have been issued to the individual by the issuing company, and
b
are shares —
i
to which SEIS relief is attributable, or
ii
in relation to which period A has not come to an end.
3
No assessment for withdrawing or reducing SEIS relief in respect of those shares may be made because of any subsequent event unless the event occurs at a time when the individual —
a
has a substantial interest in the company within the meaning of section 257BB ,
b
is an employee of the issuing company, or
c
is a director of the issuing company.
Interest
Date from which interest is chargeable
257GD
1
In its application to an assessment made by virtue of section 257G in the case of relief withdrawn or reduced by virtue of a provision listed in subsection (2), section 86 of TMA 1970 (interest on overdue income tax) has effect as if the relevant date were 31 January next following the tax year in which the assessment is made.
2
The provisions are —
a
section 257BB (no substantial interest in the issuing company),
b
section 257BD (no linked loan requirement),
c
sections 257DA to 257DN (Chapter 4 requirements),
d
section 257FA (disposal of shares),
e
section 257FD (put options),
f
section 257FE (receipt of value by the investor),
g
section 257FP (acquisition of a trade or trading asset),
h
section 257FQ (acquisition of share capital).
Information
Information to be provided by the investor
257GE
1
This section applies if the investor has obtained SEIS relief in respect of the relevant shares, and an event occurs as a result of which —
a
the investor is not a qualifying investor in relation to the shares,
b
the SEIS relief falls to be withdrawn or reduced by virtue of section 257BD (no linked loans requirement),
c
the SEIS relief falls to be withdrawn or reduced under —
i
section 257FA (disposal of shares),
ii
section 257FC (call options), or
iii
section 257FD (put options), or
d
the SEIS relief falls to be withdrawn or reduced under section 257FE (receipt of value by the investor), or would fall to be so withdrawn or reduced but for section 257FN (receipt of replacement value).
2
The investor must within 60 days of coming to know of the event give a notice to an officer of Revenue and Customs containing particulars of the event.
3
If the investor —
a
is required under this section to give notice of a receipt of value which is within section 257FE , or would be within that section but for section 257FN , and
b
has knowledge of any replacement value received (or expected to be received) because of a qualifying receipt,
the notice must include particulars of that receipt of replacement value (or expected receipt).
4
In subsection (3) “qualifying receipt” and “replacement value” are to be read in accordance with section 257FN .
Information to be provided by the issuing company etc
257GF
1
This section applies if the issuing company has provided an officer of Revenue and Customs with a compliance statement in respect of an issue of shares and an event occurs as a result of which —
a
the requirement of section 257CC (spending of the money raised) is not met in respect of any of the shares included in the issue, or would not be met if SEIS relief had been obtained in respect of the shares in question,
b
any provision of Chapter 4 has effect to prevent the issuing company being a qualifying company in relation to any of the shares included in the issue, or would have such an effect if SEIS relief had been obtained in respect of the shares in question, or
c
any of the provisions of Chapter 6 mentioned in subsection (2) has effect to cause any SEIS relief attributable to any of the shares included in the issue to be withdrawn or reduced, or —
i
would have such an effect if SEIS relief had been obtained in respect of the shares in question, or
ii
in the case of section 257FE , would have such an effect but for section 257FN (receipt of replacement value).
2
The provision are —
a
section 257FE (value received by the investor),
b
section 257FP (acquisition of a trade or trading asset), and
c
section 257FQ (acquisition of share capital).
3
If this section applies —
a
the issuing company, and
b
any person connected with the issuing company who has knowledge of the matters mentioned in subsection (1),
must give a notice to an officer of Revenue and Customs containing particulars of the event.
4
Any notice required to be given by the issuing company under subsection (3)(a) must be given —
a
within 60 days of the event, or
b
if the event is a receipt of value within section 257FH (2) from a person connected with the company (see section 257FM ), within 60 days of the company coming to know of the event.
5
Any notice required to be given by a person under subsection (3)(b) must be given within 60 days of the person coming to know of the event.
6
If a person —
a
is required under this section to give notice of a receipt of value which is within section 257FE , or would be within that section but for section 257FN , and
b
has knowledge of any replacement value received (or expected to be received) because of a qualifying receipt,
the notice must include particulars of that receipt of replacement value (or expected receipt).
7
In subsection (6) “qualifying receipt” and “replacement value” are to be read in accordance with section 257FN .
Power to require information where section 257GE or 257GF applies or could have applied
257GG
1
This section applies if an officer of Revenue and Customs has reason to believe that a person —
a
has not given a notice which the person is required to give under section 257GE or 257GF in respect of any event, or
b
has given or received value within the meaning of section 257FH (2) or (8) which, but for the fact that the amount given or received was an amount of insignificant value, would have triggered a requirement to give such a notice.
2
The officer may by notice require the person concerned to supply the officer, within such time as the officer may specify in the notice, with such information relating to the event as the officer may reasonably require for the purposes of this Part.
3
The period specified in a notice under subsection (2) must be at least 60 days.
4
In subsection (1)(b), the reference to an amount of insignificant value is construed in accordance with section 257FG (2).
Power to require information in other cases
257GH
1
Subsection (2) applies if SEIS relief is claimed in respect of shares in a company, and an officer of Revenue and Customs has reason to believe that it may not be due because of any such arrangements or scheme as is mentioned in —
a
section 257BC (no related investment arrangements),
b
section 257BE or 257DB (2) or (4) (no tax avoidance),
c
section 257CD (1) (no pre-arranged exits),
d
section 257CF (no disqualifying arrangements),
e
section 257DB (4) (winding up, administration etc), or
f
section 257DG (1) or (2) (conditions ceasing to be met).
2
The officer may by notice require any person concerned to supply the officer within such time as may be specified in the notice with —
a
a declaration in writing stating whether or not, according to the information which that person has or can reasonably obtain, any such arrangement or scheme exists or has existed, and
b
such other information as the officer may reasonably require for the purposes of the provision in question and as that person has or can reasonably obtain.
3
The period specified in a notice under subsection (2) must be at least 60 days.
4
For the purposes of subsection (2), in a case falling within a provision listed in column 1 of the following table, the person concerned is given by the corresponding entry in column 2 of the table.
Provision The person concerned
Subsection (1)(a) The claimant, the company and any person controlling the company Subsection (1)(b) The claimant Subsection (1)(c) The claimant, the company and any person connected with the company Subsection (1)(d) The claimant, the company, any person controlling the company and any person who an officer of Revenue and Customs has reason to believe may be a party to the arrangements in question Subsection (1)(e) The claimant, the company, any other company in question and any person controlling the company or any other company in question Subsection (1)(f) The company and any person controlling the company
References in this subsection to the claimant include references to any person to whom the claimant appears to have made such a transfer as is mentioned in section 257H (spouses or civil partners) of any of the shares in question.
5
If SEIS relief has been obtained in respect of shares in a company —
a
any person who receives from the company any payment or asset which may constitute value received (by the person or another) for the purposes of section 257FE , and
b
any person on whose behalf such a payment or asset is received,
must, if so required by an officer of Revenue and Customs, state whether the payment or asset so received is received on behalf of any other person and, if so, the name and address of that other person.
6
If SEIS relief has been claimed in respect of shares in a company —
a
any person who holds or has held shares in the company, and
b
any person on whose behalf any such shares are or were held,
must, if so required by an officer of Revenue and Customs, state whether the shares so held are or were held on behalf of any other person and, if so, the name and address of that other person.
Obligations of secrecy
257GI
No obligation of secrecy imposed by statute or otherwise prevents an officer of Revenue and Customs from disclosing to a company that SEIS relief has been obtained or claimed in respect of a particular number or proportion of its shares.
CHAPTER 8
Supplementary and general
Disposals of shares
Transfers between spouses or civil partners
257H
1
This section applies if —
a
shares to which an amount of SEIS relief is attributable were issued to an individual (“A”),
b
A transferred the shares to another individual (“B”) during their lives,
c
A was married to, or was the civil partner of, B at the time of the transfer, and
d
section 257FA (disposal of shares) does not apply to the transfer.
2
This Part has effect, in relation to any subsequent disposal or other event, as if —
a
B were the individual who had subscribed for the shares,
b
the amount that B had subscribed for the shares were the amount that A had subscribed for them,
c
B’s liability to income tax had been reduced in respect of the shares for the same tax year as that for which A’s was so reduced,
d
the amount by which B’s liability to income tax had been reduced in respect of the shares were the same as that by which A’s liability to income tax had been so reduced, and
e
that amount of SEIS relief had continued to be attributable to the shares despite the transfer.
3
If the amount of SEIS relief attributable to the shares had been reduced before the relief was obtained by A —
a
this Part has effect, in relation to any subsequent disposal or other event, as if the amount of SEIS relief attributable to the shares transferred to B had been correspondingly reduced before the relief was obtained by B, and
b
sections 257FB (3) and 257FL (2) apply in relation to B as they would have applied in relation to A.
4
If, because of any such disposal or other event, an assessment for reducing or withdrawing SEIS relief is to be made, the assessment is to be made on B.
Identification of shares on a disposal
257HA
1
The rules in subsections (2) and (3) are for determining which shares of any class are treated as disposed of for the purposes of —
a
section 257FA (disposal of shares), or
b
section 257H (spouses or civil partners),
if the investor disposes of some but not all of the shares of that class which the investor holds in a company.
2
Shares acquired on an earlier day are treated as disposed of before shares acquired on a later day.
3
Shares acquired on the same day are treated as disposed of in the following order —
a
first any to which no SEIS relief is attributable,
b
next any to which SEIS relief (but not SEIS re-investment relief) is attributable, and
c
next any to which SEIS relief and SEIS re-investment relief are attributable.
4
Any shares to which SEIS relief is attributable and which were transferred to an individual as mentioned in section 257H are treated for the purposes of subsections (2) and (3) as acquired by the individual on the day on which they were issued.
5
In a case to which section 127 of TCGA 1992 applies (including the case where that section applies by virtue of an enactment relating to chargeable gains), shares included in the new holding are treated for the purposes of subsections (2) and (3) as acquired when the original shares were acquired.
6
In this section —
“new holding” and “original shares” have the same meaning as in section 127 of TCGA 1992 (or, as the case may be, that section as applied by the enactment concerned);
“SEIS re-investment relief” means relief under Schedule 5BB to TCGA 1992.
Acquisition of issuing company
Continuity of SEIS relief where issuing company is acquired by new company
257HB
1
This section applies if —
a
a company (“the new company”) in which the only issued shares are subscriber shares acquires all the shares (“old shares”) in another company (“the old company”),
b
the consideration for the old shares consists wholly of the issue of shares (“new shares”) in the new company,
c
the consideration for the new shares of each description consists wholly of old shares of the corresponding description,
d
new shares of each description are issued to the holders of old shares of the corresponding description in respect of and in proportion to their holdings,
e
at some time before the issue of the new shares —
i
the old company issued shares which meet the requirements of section 257CA (2) , and
ii
a compliance certificate in respect of those shares was issued by that company for the purposes of subsection (1) of section 257EB and in accordance with section 257EC , and
f
before the issue of the new shares the Commissioners for Her Majesty’s Revenue and Customs have, on the application of the new company or the old company, notified that company that they are satisfied that the exchange of shares —
i
will be effected for genuine commercial reasons, and
ii
will not form part of any such scheme or arrangements as are mentioned in section 137(1) of TCGA 1992 (schemes with avoidance purposes).
In this subsection references to shares, except in the expressions “subscriber shares” and “shares which meet the requirements of section 257CA (2) “, include securities.
2
Subsection (2) of section 138 of TCGA 1992 (procedure for advance clearance) applies for the purposes of subsection (1)(f) as it applies for the purposes of subsection (1) of that section.
3
For the purposes of this Part —
a
the exchange of shares is not regarded as involving any disposal of the old shares or any acquisition of the new shares, and
b
any SEIS relief which is attributable to any old shares is attributable instead to the new shares for which they are exchanged.
4
Nothing in section 257DG (the control and independence requirement) applies in relation to such an exchange of shares, or shares and securities, as is mentioned in subsection (1), or arrangements with a view to such an exchange.
5
For the purposes of this section old shares and new shares are of a corresponding description if, on the assumption that they were shares in the same company, they would be of the same class and carry the same rights.
6
References in sections 257HC and 257HD to “old shares”, “new shares”, “the old company” and “the new company” are to be read in accordance with this section.
Carry over of obligations etc where SEIS relief attributed to new shares
257HC
1
This section applies if, under section 257HB , any SEIS relief which is attributable to any old shares becomes attributable instead to any new shares.
2
This Part has effect as if anything which under —
a
section 257EB (1) (entitlement to claim),
b
section 257FR (3) (relief subsequently found not to be due), or
c
sections 257GF to 257GH (information to be provided),
has been done, or is required to be done, by or in relation to the old company had been done, or were required to be done, by or in relation to the new company.
3
Any appeal brought by the old company against a notice under section 257FR (3)(b) may be prosecuted by the new company as if it had been brought by that company.
Substitution of new shares for old shares
257HD
1
Subsection (2) applies if, in the case of any new shares held by an individual to which SEIS relief becomes attributable under section 257HB , the old shares for which they were exchanged were subscribed for by and issued to the individual.
2
This Part has effect as if —
a
the new shares had been subscribed for by the individual at the time when, and for the amount for which, the old shares were subscribed for by the individual,
b
the new shares had been issued to the individual by the new company at the time when the old shares were issued to the individual by the old company,
c
the claim for SEIS relief made in respect of the old shares had been made in respect of the new shares, and
d
the individual’s liability to income tax had been reduced in respect of the new shares for the same tax year as that for which the individual’s liability was so reduced in respect of the old shares.
3
Subsection (4) applies if, in the case of any new shares held by an individual to which SEIS relief becomes so attributable under section 257HB , the old shares for which they were exchanged were transferred to the individual as mentioned in section 257H .
4
This Part has effect in relation to any subsequent disposal or other event as if —
a
the new shares had been subscribed for by the individual at the time when, and for the amount for which, the old shares were subscribed for,
b
the new shares had been issued by the new company at the time when the old shares were issued by the old company,
c
the claim for SEIS relief made in respect of the old shares had been made in respect of the new shares, and
d
the individual’s liability to income tax had been reduced in respect of the new shares for the same tax year as that for which the liability of the individual who subscribed for the old shares was so reduced in respect of those shares.
Nominees etc
Nominees and bare trustees
257HE
1
Shares subscribed for, issued to, held by or disposed of for an individual by a nominee are treated for the purposes of this Part as subscribed for, issued to, held by or disposed of by the individual.
2
If shares have been issued to a bare trust for two or more beneficiaries, this Part has effect (with the necessary modifications) as if —
a
each beneficiary had subscribed as an individual for all of those shares, and
b
the amount subscribed by each beneficiary was equal to the total amount subscribed on the issue of those shares divided by the number of beneficiaries.
3
In subsection (2) “shares” means shares which meet the requirements of section 257CA (2).
Interpretation
Meaning of “new qualifying trade”
257HF
1
For the purposes of this Part a qualifying trade carried on by the issuing company or a qualifying 90% subsidiary of that company (“the relevant company”) is a “new qualifying trade” if (and only if) —
a
the trade does not begin to be carried on (whether by the relevant company or any other person) before the two year pre-investment period, and
b
at no time before the relevant company begins to carry on the trade was any other trade being carried on by the issuing company or by any company that was a 51% subsidiary of the issuing company at the time in question.
2
In this section —
“qualifying trade” has the same meaning as in Part 5 (see sections 189 and 192 to 200);
“two year pre-investment period” means the period of 2 years ending immediately before the day on which the relevant shares are issued.
Meaning of “qualifying business activity”
257HG
1
In this Part “qualifying business activity”, in relation to the issuing company, means —
a
activity A, or
b
activity B,
if it is carried on by the company or a qualifying 90% subsidiary of the company.
This is subject to subsection (3).
2
Activity A is —
a
the carrying on of a new qualifying trade which, on the date the relevant shares are issued, the company or a qualifying 90% subsidiary of the company is carrying on, or
b
the activity of preparing to carry on (or preparing to carry on and then carrying on) a new qualifying trade —
i
which, on that date, is intended to be carried on by the company or such a subsidiary, and
ii
which is begun to be carried on by the company or such a subsidiary.
3
Activity B is the carrying on of research and development —
a
which, on the date the relevant shares are issued, the company or a qualifying 90% subsidiary of the company is carrying on, or which the company or such a subsidiary begins to carry on immediately afterwards, and
b
from which, on that date, it is intended —
i
that a new qualifying trade which the company or such a subsidiary will carry on will be derived, or
ii
that a new qualifying trade which the company or such a subsidiary is carrying on, or will carry on, will benefit.
4
For the purposes of subsection (3)(a), when research and development is begun to be carried on by a qualifying 90% subsidiary of the issuing company, any carrying on of the research and development by it before it became such a subsidiary is ignored.
5
References in subsection (2)(b)(i) or (3)(b) to a qualifying 90% subsidiary of the issuing company include references to any existing or future company which will be such a subsidiary at any future time.
Meaning of “disposal of shares”
257HH
1
In this Part references to a disposal of shares include a reference to a disposal of an interest or right in or over shares.
2
An individual is to be treated, for the purposes of this Part, as disposing of any shares which the individual is treated by virtue of section 136 of TCGA 1992 as exchanging for other shares.
Meaning of “issue of shares”
257HI
1
In this Part —
a
references (however expressed) to an issue of shares in any company are to such of the shares in the company as are of the same class and issued on the same day, and
b
references (however expressed) to an issue of shares in any company to an individual are to such of the shares in the company as are of the same class and are issued to the individual in one capacity on the same day.
2
Subsection (1)(b) has effect subject to sections 257E (6), 257EA (2), 257FB (2) and 257FK (1).
Minor definitions
257HJ
1
In this Part —
“arrangements” includes any scheme, agreement, understanding, transaction or series of transactions (whether or not legally enforceable);
“associate” has the same meaning as in Part 5 (see section 253);
“bonus shares” means shares which are issued otherwise than for payment (whether in cash or otherwise);
“director” is read in accordance with section 452 of CTA 2010;
“EIS relief” means relief under Part 5;
“group” means a parent company and its qualifying subsidiaries;
“group company”, in relation to a group, means the parent company or any of its qualifying subsidiaries;
“ordinary shares” means shares forming part of a company’s ordinary share capital;
“parent company” means a company that has one or more qualifying subsidiaries, and “single company” means a company that does not;
“permanent establishment” has the same meaning as in Part 5 (see section 191A);
“qualifying subsidiary” has the same meaning as in Part 5 (see section 191);
“qualifying 90% subsidiary” has the same meaning as in Part 5 (see section 190);
“research and development” has the meaning given by section 1006.
2
Section 252 (meaning of a company being “in administration” or “in receivership”) applies for the purposes of this Part.
3
Section 995 (control) does not apply for the purposes of the following provisions —
a
section 257DG (1)(a),
b
section 257FP ,
c
section 257FQ ,
d
section 257GH (4);
and in those provisions “control” is to be read in accordance with sections 450 and 451 of CTA 2010.
4
In this Part —
a
references in any provision to the reduction of any SEIS relief attributable to any shares include a reference —
i
to the reduction of the relief to nil, and
ii
if no relief has yet been obtained, to the reduction of the amount which apart from that provision would be the SEIS relief, and
b
references to the withdrawal of SEIS relief in respect of any shares are —
i
to the withdrawal of the SEIS relief attributable to those shares, or
ii
if no relief has yet been obtained, to ceasing to be eligible for SEIS relief in respect of those shares.
5
For the purposes of this Part shares in a company are not treated as being of the same class unless they would be so treated if dealt in on a recognised stock exchange.
6
For the purposes of this Part the market value at any time of any asset is the price which it might reasonably be expected to fetch on a sale at that time in the open market free from any interest or right which exists by way of security in or over it.
7
In this Part —
a
references to SEIS relief obtained by an individual in respect of any shares include a reference to SEIS relief obtained by the individual in respect of those shares at any time after the individual has disposed of them, and
b
references to the withdrawal or reduction of SEIS relief obtained by an individual in respect of any shares include a reference to the withdrawal or reduction of SEIS relief obtained by the individual in respect of those shares at any time.
8
In the case of requirements that cannot be met until a future date, references in this Part to requirements being met for the time being are to nothing having occurred to prevent their being met.
PART 2
Relief for capital gains
Introductory
2
TCGA 1992 is amended as follows.
Disposal of shares to which SEIS relief is attributable
3
Before section 151 insert —
Seed enterprise investment scheme
150E
1
For the purpose of determining the gain or loss on any disposal of shares by an individual where —
a
an amount of SEIS relief is attributable to the shares, and
b
apart from this subsection there would be a loss,
the consideration given by the individual for the shares is to be treated as reduced by the amount of the relief.
2
Where —
a
shares are disposed of by an individual after the end of the period referred to in section 257AC(2) of ITA 2007,
b
an amount of SEIS relief is attributable to the shares, and
c
(apart from this subsection) there would be a gain,
the gain is not a chargeable gain.
3
Despite section 16(2), subsection (2) does not apply to a disposal on which a loss accrues.
4
Subsection (5) applies where —
a
an individual’s liability to income tax has been reduced (or treated by virtue of section 257H of ITA 2007 (spouses and civil partners) as reduced) for any tax year under section 257AB of that Act in respect of an issue of shares,
b
the amount of the reduction (“R”) is less than the amount (“T”) which is equal to tax at the SEIS rate on the amount subscribed for the issue, and
c
R is not within paragraph (b) solely by virtue of section 29(2) and (3) of ITA 2007.
5
If there is a disposal of the shares on which there is a gain, subsection (2) applies only to so much of the gain as is found by multiplying it by the fraction —
R T
6
Any question as to —
a
which of any shares that —
i
are acquired by an individual at different times, and
ii
are shares to which SEIS relief is attributable,
a disposal relates to, or
b
whether a disposal relates to shares to which SEIS relief is attributable,
is to be determined for the purposes of capital gains tax as for the purposes of section 257HA of ITA 2007.
Chapter 1 of this Part has effect subject to this subsection.
7
Sections 104, 105 and 106A do not apply to shares to which SEIS relief is attributable.
8
Where —
a
an individual holds shares (“the existing holding”) which form part of the ordinary share capital of a company,
b
there is, by virtue of any such allotment for payment as is mentioned in section 126(2)(a), a reorganisation affecting the existing holding, and
c
immediately following the reorganisation, SEIS relief is attributable to the existing holding or the allotted shares,
sections 127 to 130 do not apply in relation to the existing holding.
9
Sections 135 and 136 do not apply in respect of shares to which SEIS relief is attributable.
10
Subsection (9) does not have effect to disapply section 135 or 136 where —
a
the new holding consists of new ordinary shares carrying no present or future preferential right to dividends or to a company’s assets on its winding up and no present or future right to be redeemed,
b
the new shares are issued after the end of the relevant period, and
c
the condition in subsection (11) is satisfied.
11
The condition is that at some time before the issue of the new shares —
a
the company issuing them issued eligible shares, and
b
a certificate in relation to those eligible shares was issued by the company for the purposes of section 257EB(1) of ITA 2007 and in accordance with sections 257EC and 257ED of that Act.
12
All such adjustments of capital gains tax are to be made, whether by way of assessment or by way of discharge or repayment of tax, as may be required in consequence of the SEIS relief being given or withdrawn.
13
Where shares to which SEIS relief is attributable are exchanged for other shares in circumstances such that section 257HB of ITA 2007 (acquisition of share capital by new company) applies —
a
subsection (9) above does not have effect to disapply section 135, and
b
sections 257HB (3)(b), 257HC (2)(a) and 257HD of ITA 2007 apply for the purposes of this section as they apply for the purposes of Part 5A of that Act.
14
For the purposes of this section —
“eligible shares” means shares that meet the requirements of section 257CA(2);
“new holding” is to be construed in accordance with sections 126, 127, 135 and 136;
“ordinary share capital” has the meaning given in section 989 of ITA 2007;
“ordinary shares”, in relation to a company, means shares forming part of its ordinary share capital;
“relevant period” means the period found by applying section 257AC(2) of ITA 2007 by reference to the company issuing the shares referred to in subsection (9) and by reference to those shares;
“the SEIS rate” has the meaning given by section 257AB(3) of ITA 2007;
“SEIS relief” means relief under Part 5A of ITA 2007 (seed enterprise investment scheme);
and that Part applies to determine whether SEIS relief is attributable to any shares and, if so, the amount of SEIS relief so attributable.
Seed enterprise investment scheme: reduction of relief
150F
1
This section has effect where —
a
section 150E(2) applies on a disposal of shares, and
b
before the disposal, value is received in circumstances where SEIS relief attributable to the shares is reduced by an amount under section 257FE(2)(a) of ITA 2007.
2
If section 150E(2) applies on the disposal but section 150E(5) does not, section 150E(2) applies only to so much of the gain as remains after deducting so much of it as is found by multiplying it by the fraction —
A B
where —
A is the amount by which the SEIS relief attributable to the shares is reduced as mentioned in subsection (1), and
B is the amount of the relief attributable to the shares.
3
If section 150E(2) and (5) apply on the disposal, section 150E(2) applies only to so much of the gain as is found by —
a
taking the part of the gain found under section 150E(5), and
b
deducting from that part so much of it as is found by multiplying it by the fraction mentioned in subsection (2) above.
4
Where the SEIS relief attributable to the shares is reduced as mentioned in subsection (1) by more than one amount, “A” in subsection (2) is to be taken to be equal to the aggregate of the amounts.
5
The amount which is “B” in subsection (2) is to be found without regard to any reduction mentioned in subsection (1).
6
For the purposes of this section, Part 5A of ITA 2007 (seed enterprise investment scheme) applies to determine whether SEIS relief is attributable to any shares and, if so, the amount of SEIS relief so attributable.
Seed enterprise investment scheme: re-investment relief
4
After section 150F (inserted by paragraph 3 of this Schedule) insert —
Seed enterprise investment scheme: re-investment
150G
Schedule 5BB to this Act (which provides relief in respect of re-investment under the seed enterprise investment scheme in the tax year 2012-13) has effect.
5
After Schedule 5B insert —
SCHEDULE 5BB
Seed enterprise investment scheme: re-investment
SEIS re-investment relief
1
1
Sub-paragraph (5) applies where conditions A to C are met in relation to an individual (“the investor”).
2
Condition A is that —
a
there would (ignoring sub-paragraphs (5) and (6)) be a chargeable gain (“the original gain”) accruing to the investor at any time in the tax year 2012-13, and
b
the original gain is one accruing on the disposal of an asset by the investor at any time (“the disposal time”) in that year.
3
Condition B is that —
a
the investor is eligible for SEIS relief for the tax year 2012-13 in respect of an amount subscribed for an issue of shares in a company made to the investor in that year,
b
the investor makes a claim for and obtains SEIS relief for that year in respect of all or some of those shares (“the relevant SEIS shares”), and
c
if the relevant SEIS shares, or any corresponding bonus shares in relation to those shares, were issued before the disposal time, they are still held by the investor at the disposal time.
4
Condition C is that —
a
the investor has made a claim under this paragraph for relief in relation to the original gain, and
b
the claim is in respect of the amount on which SEIS relief is claimed by the investor in respect of the relevant SEIS shares (“the SEIS expenditure”) or part of that amount.
5
So much of the SEIS expenditure as —
a
is specified in the claim,
b
is unused, and
c
does not exceed so much of the original gain as is unmatched,
is to be set against a corresponding amount of the original gain.
6
Where an amount of the SEIS expenditure is set against the whole or part of the original gain under sub-paragraph (5), so much of that gain as is equal to that amount is to be treated as not being a chargeable gain.
7
For the purposes of this paragraph —
a
the SEIS expenditure is unused to the extent that it has not already been set under sub-paragraph (5) or paragraph 2(1) of Schedule 5B against the whole or any part of a chargeable gain, and
b
the original gain is unmatched, in relation to the SEIS expenditure, to the extent that it has not had any other expenditure set against it under sub-paragraph (5) or paragraph 2(1) of Schedule 5B.
Restrictions on relief under paragraph 1
2
1
Sub-paragraph (2) applies if the investor’s tax reduction under section 257AB of ITA 2007 for the tax year 2012-13 is limited by subsection (2)(b) of that section (calculation of tax reduction where claim made for amounts subscribed for shares which exceed £100,000).
2
Paragraph 1(5) to (7) has effect as if references to the SEIS expenditure were references to so much of that expenditure as is given by the formula —
SA TSA × £ 100,000
where —
SA means the SEIS expenditure (ignoring this paragraph);
TSA means the total of the amounts subscribed for shares issued in the tax year 2012-13 in respect of which the investor is eligible for and claims SEIS relief for that tax year.
3
Sub-paragraph (4) applies if the amount of SEIS relief attributable to any of the relevant SEIS shares has been reduced under Chapter 6 of Part 5A of ITA 2007 before the SEIS relief was obtained (otherwise than by virtue of corresponding bonus shares being issued in respect of those shares).
4
Paragraph 1(5) to (7) has effect as if the SEIS expenditure were the amount found by multiplying that expenditure by the fraction —
R 1 R 2
where —
“R1” means the amount of SEIS relief attributable to the relevant SEIS shares when the relief is obtained;
“R2” means the amount of SEIS relief which would have been so attributable in the absence of the reduction.
5
In a case where sub-paragraphs (2) and (4) both apply, sub-paragraph (2) is to be applied before sub-paragraph (4).
Claims
3
1
Section 257EA of ITA 2007 (time for making claims for SEIS relief) applies in relation to a claim made by the investor for the purposes of paragraph 1 in relation to the SEIS expenditure as it applies in relation to a claim for SEIS relief in respect of that expenditure.
2
Nothing in paragraph 1(3) prevents a claim being made by the investor under paragraph 1 before SEIS relief has actually been obtained by the investor in relation to the SEIS relief.
Attribution of SEIS re-investment relief to relevant SEIS shares
4
1
References in this Schedule to the SEIS re-investment relief attributable to any shares are to be read as references to the total amount attributed to those shares in accordance with this paragraph.
2
Sub-paragraph (3) applies where the whole or part of the SEIS expenditure is set off against a chargeable gain under paragraph 1(5).
3
A proportionate part of the expenditure which is so set off is attributed to each of the relevant SEIS shares.
4
Sub-paragraph (5) applies if corresponding bonus shares are issued in respect of all or some of the relevant SEIS shares (“the original shares”) to which relief is attributed under this paragraph.
5
A proportionate part of the total amount attributed to the original shares immediately before those bonus shares are issued is attributed to each of the shares in the holding comprising the original shares and those bonus shares.
Removal or reduction of the relief
5
1
This paragraph applies where in respect of shares issued to an individual —
a
SEIS relief is attributable to the shares,
b
SEIS re-investment relief is also attributable to the shares, and
c
the SEIS relief which is attributable to the shares is withdrawn or reduced under Chapters 6 and 7 of Part 5A of ITA 2007.
2
A chargeable gain accrues to the individual in the tax year 2012-13 on a disposal made in that tax year.
3
The amount of that gain is —
a
in a case where the SEIS relief is withdrawn, the amount of SEIS re-investment relief which is attributable to the shares immediately before the withdrawal, and
b
in a case where the SEIS relief is reduced, the appropriate fraction of that amount.
4
In a case where the SEIS re-investment relief is withdrawn, the SEIS re-investment relief ceases to be attributable to the shares.
5
In a case where the SEIS relief is reduced, the appropriate fraction of the SEIS re-investment relief ceases to be attributable to the shares.
6
“The appropriate fraction” is —
R 1 − R 2 R 1
where —
“R1” is the total amount of the SEIS relief attributable to those shares immediately before the reduction, and
“R2” is the total amount of the SEIS relief attributable to those shares immediately after the reduction.
Transfers of shares to spouses and civil partners
6
1
This paragraph applies if —
a
shares to which an amount of SEIS relief is attributable were issued to an individual (“A”),
b
A transferred the shares to another individual (“B”) during their lives,
c
A was married to, or was the civil partner of, B at the time of the transfer, and
d
subsection (4) of section 257FA of ITA 2007 (provision about disposals of shares disapplied where disposal between spouses or civil partners) prevented that section applying to the transfer.
2
Any chargeable gain which accrues by virtue of paragraph 5(2), as a result of SEIS relief attributable to the shares being withdrawn or reduced after the shares are transferred, is to accrue to B (instead of to A).
Adjustment of capital gains tax liability
7
1
All such adjustments of capital gains tax are to be made, whether by way of assessment or by way of discharge or repayment of tax, as may be required in consequence of relief being obtained, or a gain accruing, under this Schedule.
2
In its application to an assessment made by virtue of this paragraph, section 86 of TMA 1970 (interest on overdue capital gains tax) has effect as if the relevant date were 31 January next following the tax year in which the assessment is made.
Interpretation etc
8
1
In this Schedule —
“bonus shares” means shares which are issued otherwise than for payment (whether in cash or otherwise);
“corresponding bonus shares”, in relation to any shares (“the original shares”), means bonus shares which are in the same company, of the same class, and carry the same rights as the original shares;
“SEIS relief” has the same meaning as in Part 5A of ITA 2007.
2
In this Schedule, references (however expressed) to an issue of shares in any company to an individual are to such of the shares in the company as are of the same class and are issued to the individual in one capacity and on the same day.
This is subject to sub-paragraph (3).
3
If section 257AB(1) and (2) of ITA 2007 applies, in the case of any issue of shares made to an individual, as if part of the issue had been issued in a previous tax year, this Schedule has effect as if that part and the remainder were separate issues of shares (and that part had been issued on a day in the previous tax year).
4
Part 5A of ITA 2007 applies, for the purposes of this Schedule, to determine whether SEIS relief is attributable to any shares and, if so, the amount of relief so attributable.
PART 3
Consequential amendments
ITA 2007
6
ITA 2007 is amended as follows.
7
In section 2 (overview of Act), after subsection (5) insert —
5A
Part 5A is about relief under the seed enterprise investment scheme.
8
In section 26 (tax reductions), in subsection (1)(a), after the entry for Chapter 1 of Part 5, insert —
Chapter 1 of Part 5A (SEIS relief),
.
9
In section 27 (order of deducting tax reductions: individual), in subsection (5), after the entry for “Chapter 1 of Part 5 (EIS relief)” insert —
Chapter 1 of Part 5A (SEIS relief),
.
10
In section 169 (directors qualifying for relief despite connection), in subsection (4), for the words after “before” substitute
—
a
the termination date relating to the latest issue of shares which met that condition, or
b
if that issue is an issue in respect of which the investor is eligible for SEIS relief (within the meaning of Part 5A), before the date specified in section 257AC(4) in relation to the shares.
11
In section 172 (overview of Chapter 3), after paragraph (aa) insert —
ab
the spending of money raised by SEIS investments (see section 173B),
.
12
In section 173A (enterprise investment scheme: maximum amount raised annually through risk capital schemes requirement), in subsection (3)(b), after sub-paragraph (i) (and the “or” at the end of it) insert —
ia
a compliance statement under section 257ED (seed enterprise investment scheme).
13
After that section insert —
The spending of money raised by SEIS investment requirement
173B
1
The requirement of this section is that, if an SEIS investment has been made in the issuing company, at least 70% of the money raised by the investment has been spent as mentioned in section 257CC (seed enterprise investment scheme: spending of the money raised requirement) before the relevant shares are issued.
2
An “SEIS investment” is made in a company if the company issues shares (money having been subscribed for them), and (at any time) the company provides a compliance statement under section 257ED (seed enterprise investment scheme).
14
1
Section 246 (identification of shares on a disposal) is amended as follows.
2
In subsection (3) —
a
in paragraph (a) for “neither EIS relief nor deferral relief” substitute “no EIS relief, deferral relief or SEIS relief”, and
b
after that paragraph insert —
aa
next any to which SEIS relief is attributable,
.
3
In subsection (7), at the end insert —
“SEIS relief” means relief under Part 5A (seed enterprise investment scheme).
15
In section 286 (qualifying holdings: introduction), in subsection (3), after paragraph (ea) insert —
eb
the spending of money raised by SEIS investment (see section 292B),
.
16
In section 292A (venture capital trusts: maximum amount raised annually through risk capital schemes requirement), in subsection (3)(b), after sub-paragraph (i) (and the “or” at the end of it) insert —
ia
a compliance statement under section 257ED (seed enterprise investment scheme).
17
After that section insert —
The spending of money raised by SEIS investment requirement
292B
1
The requirement of this section is that, if an SEIS investment has been made in the relevant company, at least 70% of the money raised by the investment has been spent as mentioned in section 257CC (seed enterprise investment scheme: the spending of the money raised requirement) before the issue of the relevant holding.
2
An “SEIS investment” is made in a company if the company issues shares (money having been subscribed for them), and (at any time) the company provides a compliance statement under section 257ED (seed enterprise investment scheme).
18
1
Schedule 4 (index of defined expressions) is amended as follows.
2
Insert the following entries at the appropriate places —
arrangements (in Part 5A) section 257HJ(1)
associate (in Part 5A) section 257HJ(1)
bonus shares (in Part 5A) section 257HJ(1)
compliance certificate (in Part 5A) section 257EC(1)
compliance statement (in Part 5A) section 257ED(1)
director (in Part 5A) section 257HJ(1)
disposal of shares (in Part 5A) section 257HH
EIS relief (in Part 5A) section 257HJ(1)
group (in Part 5A) section 257HJ(1)
group company (in Part 5A) section 257HJ(1)
issue of shares (in Part 5A) section 257HI
market value (in Part 5A) section 257HJ(6)
new qualifying trade (in Part 5A) section 257HF
ordinary shares (in Part 5A) section 257HJ(1)
parent company (in Part 5A) section 257HJ(1)
period A, period B (in Part 5A) section 257AC
permanent establishment (in Part 5A) section 257HJ(1)
qualifying business activity (in Part 5A) section 257HG
qualifying subsidiary (in Part 5A) section 257HJ(1)
qualifying 90% subsidiary (in Part 5A) section 257HJ(1)
research and development (in Part 5A) section 257HJ(1)
SEIS (in Part 5A) section 257A(2)
single company (in Part 5A) section 257HJ(1)
3
In the entry for “control”, in the second column, after “257(3),” insert “257HJ(3),”.
TCGA 1992
19
TCGA 1992 is amended as follows.
20
1
Section 150A (enterprise investment scheme) is amended as follows.
2
For “relief”, in each place it occurs (except subsections (6)(c) and (10)), substitute “EIS relief”.
3
In subsection (6) —
a
omit the “and” at the end of paragraph (b) and after that paragraph insert —
ba
shares to which SEIS relief is attributable; and
,
b
in paragraph (c), for “relief is not” substitute “neither EIS nor SEIS relief is”, and
c
after “paragraph (a), (b)” insert “, (ba)”.
4
In subsection (10), for “the relief” substitute “EIS relief”.
5
In subsection (10A), at the appropriate place, insert —
“EIS relief” means relief under Chapter 3 of Part 7 of the Taxes Act or Part 5 of ITA 2007;
, and
“SEIS relief” means relief under Part 5A of ITA 2007.
21
1
Section 150B (enterprise investment scheme: reduction of relief) is amended as follows.
2
For “relief”, in each place it occurs, substitute “EIS relief”.
3
After subsection (5) insert —
5A
In this section “EIS relief” means relief under Chapter 3 of Part 7 of the Taxes Act or Part 5 of ITA 2007.
22
In Schedule 5B (enterprise investment scheme: re-investment), in paragraph 2 (postponement of original gain) —
a
in sub-paragraph (3)(b), after “Schedule” insert “or paragraph 1(5) of Schedule 5BB”, and
b
in sub-paragraph (4), after “this Schedule” insert “or paragraph 1(5) of Schedule 5BB”.
TMA 1970
23
In section 98 of TMA 1970 (special returns, etc) —
a
in the first column of the Table, after the entry for “sections 242 and 243(1) and (2) of ITA 2007” insert —
sections 257GG and 257GH (1) and (2) of ITA 2007;
, and
b
in the second column of that Table, after the entry for “sections 240 and 241 of ITA 2007” insert —
sections 257GE and 257GF of ITA 2007;
.
PART 4
Commencement
24
1
Subject to sub-paragraphs (2) and (3), the amendments made by this Schedule have effect in relation to shares issued on or after 6 April 2012.
2
The amendments made by paragraphs 15 to 17 have effect for the purpose of determining whether shares or securities issued on or after 6 April 2012 are to be regarded as comprised in a company’s qualifying holdings.
3
Sub-paragraph (1) does not apply to the amendments made by paragraphs 4 , 5 and 22 .
SCHEDULE 7
Enterprise investment scheme
Section 39
PART 1
Enterprise investment scheme
Introduction
1
Part 5 of ITA 2007 (enterprise investment scheme) is amended as follows.
Minimum subscription
2
In section 157 (eligibility for EIS relief), omit subsections (2) and (3).
Increase in amount of relief
3
1
In section 158 (form and amount of EIS relief), in subsection (2)(b) for “£500,000” substitute “£1 million”.
2
Accordingly, section 31 of FA 2008 is repealed.
Loan capital
4
In section 170 (person interested in capital etc of company) —
a
in subsection (1)(b), omit “loan capital and”, and
b
omit subsections (8) and (10).
Overview of Chapter 3
5
In section 172 (overview of Chapter 3), omit the “and” at the end of paragraph (e) and after paragraph (f) insert
, and
g
no disqualifying arrangements (see section 178A).
Relaxation of the shares requirement
6
1
Section 173 (the shares requirement) is amended as follows.
2
In subsection (2), for paragraph (a) (but not the “or” after it) substitute —
a
any present or future preferential right to dividends that is within subsection (2A),
aa
any present or future preferential right to a company’s assets on its winding up,
3
After that subsection insert —
2A
A preferential right to dividends carried by a share in a company is within this subsection if —
a
the amount of any dividends payable pursuant to the right, or the date or dates on which they are payable, depend to any extent on a decision of the company, the holder of the share or any other person, or
b
the amount of any dividends that become payable at any time pursuant to the right includes any amount that became payable at any earlier time pursuant to the right, but has not been paid.
Increase in the maximum amount permitted to be raised annually
7
1
Section 173A (the maximum amount raised annually through risk capital schemes requirement) is amended as follows.
2
In subsection (1) for “£2 million” substitute “£5 million”.
3
In subsection (3) —
a
in paragraph (b), omit sub-paragraph (ii), and
b
after that paragraph insert
, or
c
any other investment is made in the company which is aid received by it pursuant to a measure approved by the European Commission as compatible with Article 107 of the Treaty on the Functioning of the European Union in accordance with the principles laid down in the Community Guidelines on Risk Capital Investments in Small and Medium-sized Enterprises (as those guidelines may be amended or replaced from time to time).
Acquisition of shares or stock
8
In section 175 (the use of the money raised requirement), after subsection (1) insert —
1A
Employing money on the acquisition of shares or stock in a company does not of itself amount to employing the money for the purposes of a qualifying business activity.
No disqualifying arrangements requirement
9
After section 178 insert —
The no disqualifying arrangements requirement
178A
1
The relevant shares must not be issued, nor any money raised by the issue employed, in consequence or anticipation of, or otherwise in connection with, disqualifying arrangements.
2
Arrangements are “disqualifying arrangements” if —
a
the main purpose, or one of the main purposes, of the arrangements is to secure —
i
that a qualifying business activity is or will be carried on by the issuing company or a qualifying 90% subsidiary of that company, and
ii
that one or more persons (whether or not including any party to the arrangements) may obtain relevant tax relief in respect of shares issued by the issuing company which raise money for the purposes of that activity or that such shares may comprise part of the qualifying holdings of a VCT,
b
that activity is the relevant qualifying business activity, and
c
one or both of conditions A and B are met.
3
Condition A is that, as a (direct or indirect) result of the money raised by the issue of the relevant shares being employed as required by section 175, an amount representing the whole or the majority of the amount raised is, in the course of the arrangements, paid to or for the benefit of a relevant person or relevant persons.
4
Condition B is that, in the absence of the arrangements, it would have been reasonable to expect that the whole or greater part of the component activities of the relevant qualifying business activity would have been carried on as part of another business by a relevant person or relevant persons.
5
For the purposes of this section it is immaterial whether the issuing company is a party to the arrangements.
6
In this section —
“component activities” means —
if the relevant qualifying business activity is activity A (see section 179(2)), the carrying on of a qualifying trade or preparing to carry on such a trade, which constitutes that activity, and
if the relevant qualifying business activity is activity B (see section 179(4)), the carrying on of research and development which constitutes that activity;
“qualifying holdings”, in relation to the issuing company, is to be construed in accordance with section 286 (VCTs: qualifying holdings);
“relevant person” means a person who is a party to the arrangements or a person connected with such a party;
“relevant qualifying business activity” means the activity for the purposes of which the issue of the relevant shares raised money;
“relevant tax relief”, in respect of shares, means one or more of the following —
EIS relief in respect of the shares;
SEIS relief under Part 5A in respect of the shares;
relief under Chapter 6 of Part 4 (losses on disposal of shares) in respect of the shares;
relief under section 150A or 150E of TCGA 1992 (enterprise investment scheme) in respect of the shares;
relief under Schedule 5B to that Act (enterprise investment scheme: reinvestment) in consequence of which deferral relief is attributable to the shares (see paragraph 19(2) of that Schedule);
relief under Schedule 5BB to that Act (seed enterprise investment scheme: re-investment) in consequence of which SEIS re-investment relief is attributable to the shares (see paragraph 4 of that Schedule).
Meaning of “qualifying business activity”
10
In section 179 (meaning of “qualifying business activity”), in subsection (1) omit “This is subject to subsections (3) and (5).”
Increase in the gross assets limits
11
In section 186 (the gross assets requirement) —
a
in subsections (1)(a) and (2)(a), for “£7 million” substitute “£15 million”, and
b
in subsections (1)(b) and (2)(b), for “£8 million” substitute “£16 million”.
Relaxation of restriction on number of employees
12
In section 186A (the number of employees requirement), in subsections (1) and (2), for “50” substitute “250”.
Subsidised generation or export of electricity
13
1
Section 192 (meaning of “excluded activities”) is amended as follows.
2
In subsection (1), omit “and” at the end of paragraph (k) and after that paragraph insert —
ka
the subsidised generation or export of electricity, and
.
3
In subsection (2), omit the “and” at the end of paragraph (e) and after paragraph (f) insert
, and
g
section 198A (subsidised generation or export of electricity).
14
After section 198 insert —
Excluded activities: subsidised generation or export of electricity
198A
1
This section supplements section 192(1)(ka).
2
Electricity is exported if it is exported onto a distribution system or transmission system (within the meaning of section 4 of the Electricity Act 1989).
3
The generation of electricity is “subsidised” if a person receives a FIT subsidy in respect of the electricity generated.
4
The export of electricity is “subsidised” if a person receives a FIT subsidy in respect of the electricity exported.
5
But the generation or export of electricity is not to be taken to fall within section 192(1)(ka) if Condition A, B or C is met.
6
Condition A is that the generation or export is carried on by —
a
a community interest company,
b
a co-operative society,
c
a community benefit society, or
d
a NI industrial and provident society.
7
Condition B is that the plant used for the generation of the electricity relies wholly or mainly on anaerobic digestion.
8
Condition C is that the electricity is hydroelectric power.
9
For the purposes of this section —
“anaerobic digestion” means the bacterial fermentation of organic material in the absence of free oxygen (excluding anaerobic digestion of sewage or material in a landfill);
“community benefit society” means —
a society registered under the Co-operative and Community Benefit Societies and Credit Unions Act 1965 as a community benefit society, or
a pre-2010 Act society (as defined at section 4A(1) of that Act) which meets the condition in section 1(3) of that Act;
“co-operative society” means —
a society registered under the Co-operative and Community Benefit Societies and Credit Unions Act 1965 as a co-operative society, or
a pre-2010 Act society (as defined at section 4A(1) of that Act) which meets the condition in section 1(2) of that Act;
“FIT subsidy” means —
a financial incentive under a scheme established by virtue of section 41 of the Energy Act 2008 (powers to amend licence conditions etc: feed-in tariffs) to encourage small-scale low-carbon generation of electricity, or
a financial incentive under a similar scheme established in a territory outside the United Kingdom to encourage small-scale low-carbon generation of electricity;
“NI industrial and provident society” means a society registered under the Industrial and Provident Societies Act (Northern Ireland) 1969 (c. 24 (N.I.)) ;
“small-scale low-carbon generation” has the meaning given by section 41(4) of the Energy Act 2008.
15
In section 199 (excluded activities: provision of services or facilities for another business), in subsection (1)(a), for “(k)” substitute “(ka)”.
Powers to amend
16
In section 200 (power to amend by Treasury order), the existing provision becomes subsection (1) and after that subsection insert —
2
An order under this section may —
a
make different provision for different cases or purposes, or
b
include such transitional provision as the Treasury consider appropriate.
Disposal of shares
17
In section 209 (disposal of shares), after subsection (5) insert —
6
Nothing in this section applies to a disposal of shares occurring as a result of the investor’s death.
Date from which interest is chargeable
18
In section 239 (date from which interest is chargeable), in subsection (2) for “sections 181 to 188” substitute “sections 180A to 188”.
Information
19
In section 243 (power to require information in other cases) —
a
in subsection (1), omit the “or” at the end of paragraph (d) and after that paragraph insert —
da
section 178A (no disqualifying arrangements), or”, and
b
in subsection (4), at the appropriate place in the table, insert —
Subsection (1)(da) The claimant, the company, any person controlling the company and any person whom an officer of Revenue and Customs has reason to believe may be a party to the arrangements in question
Approved investment fund as nominee
20
In section 251 (approved investment fund as nominee), omit subsection (3).
Interpretation
21
In section 257 (minor definitions etc), in subsection (1), for the definition of “arrangements” substitute —
“arrangements” includes any scheme, agreement, understanding, transaction or series of transactions (whether or not legally enforceable);
.
Commencement and transitional provision
22
1
The amendments made by paragraphs 2 to 6 , 7(1) and (3) , 8 , 9 , 10 and 19 have effect in relation to shares issued on or after 6 April 2012.
2
But —
a
for the purposes of paragraphs 5 , 9 and 19 it does not matter whether the disqualifying arrangements were entered into before or on or after 6 April 2012, and
b
nothing in sub-paragraph (1) prevents shares issued before that date constituting a “relevant investment” (by virtue of the amendment made by paragraph 7(3)(b) of this Schedule) for the purposes of determining whether the requirement of section 173A(1) of ITA 2007 is met in relation to shares issued on or after that date.
23
1
The amendments made by paragraphs 7(2) , 11 and 12 come into force on such day as the Treasury may by order appoint.
2
Those amendments have effect in relation to shares issued on or after 6 April 2012.
24
1
Subject to sub-paragraph (2), the amendments made by paragraphs 13 to 15 have effect in relation to shares issued on or after 23 March 2011.
2
Those amendments do not have effect in relation to shares issued before 6 April 2012 if the issuing company, or a qualifying 90% subsidiary of that company, first began to carry on activities of the kind mentioned in section 192(1)(ka) of ITA 2007 before that day.
3
Until such time as section 1 of the Co-operative and Community Benefit Societies and Credit Unions Act 2010 comes into force, section 198A(6) of ITA 2007 (inserted by paragraph 12 of this Schedule) has effect as if for paragraphs (b) and (c) there were substituted —
b
a society registered under the Industrial and Provident Societies Act 1965,
.
25
1
The amendment made by paragraphs 18 and 21 are to be treated as having come into force on 6 April 2012.
PART 2
Enterprise investment scheme: chargeable gains
Introduction
26
TCGA 1992 is amended as follows.
Disposal of shares to which EIS relief is attributable
27
In section 150A (disposal of shares to which EIS relief is attributable) —
a
in subsection (3), in paragraph (b) for “basic rate” substitute “EIS original rate”, and
b
after that subsection insert —
3A
In subsection (3) “EIS original rate” has the meaning given by section 256A of ITA 2007, except that where the year mentioned in subsection (3)(b) is the tax year 2007-08 or an earlier year, it means 20%.
28
Accordingly, in Schedule 1 to FA 2008, paragraph 48 is repealed.
Maximum annual investment
29
In paragraph 1 of Schedule 5B to the TCGA 1992 (EIS re-investment relief: application of Schedule), in sub-paragraph (2)(da), for “£2 million” substitute “£5 million”.
No disqualifying arrangements
30
After paragraph 11 insert —
Disqualifying arrangements
11A
1
Where an individual subscribes for eligible shares (“the shares”) in a company (“the company”), the shares are to be treated as not being eligible shares for the purposes of this Schedule if the shares are issued, nor any money raised by the issue employed, in consequence or anticipation of, or otherwise in connection with, disqualifying arrangements.
2
Arrangements are “disqualifying arrangements” if —
a
the main purpose, or one of the main purposes, of the arrangements is to secure —
i
that a qualifying business activity is or will be carried on by the company or a qualifying 90% subsidiary of the company, and
ii
that one or more persons (whether or not including any party to the arrangements) may obtain relevant tax relief in respect of shares issued by the company which raise money for the purposes of that activity or that such shares may comprise part of the qualifying holdings of a venture capital trust,
aa
that activity is the relevant qualifying business activity, and
b
one or both of conditions A and B are met.
3
Condition A is that, as a (direct or indirect) result of the money raised by the issue of the shares being employed as required by paragraph 1(2)(g), an amount representing the whole or the majority of the amount raised is, in the course of the arrangements, paid to or for the benefit of a relevant person or relevant persons.
4
Condition B is that, in the absence of the arrangements, it would have been reasonable to expect that the whole or greater part of the component activities of the relevant qualifying business activity would have been carried on as part of another business by a relevant person or relevant persons.
5
For the purposes of this paragraph, it is immaterial whether the company is a party to the arrangements.
6
In this paragraph —
“component activities” means —
if the relevant qualifying business activity is activity A (see section 179(2) of ITA 2007), the carrying on of a qualifying trade, or preparing to carry on such a trade, which constitutes that activity, and
if the relevant qualifying business activity is activity B (see section 179(4) of that Act), the carrying on of research and development which constitutes that activity;
“qualifying holdings”, in relation to the issuing company, is to be construed in accordance with section 286 of ITA 2007 (VCTs: qualifying holdings);
“qualifying 90% subsidiary” has the meaning given by section 190 of ITA 2007;
“relevant person” means a person who is a party to the arrangements or a person connected with such a party;
“relevant qualifying business activity” means the activity for the purposes of which the issue of the shares raised money;
“relevant tax relief”, in respect of shares, means one or more of the following —
relief under this Schedule in consequence of which deferral relief is attributable to the shares;
relief under section 150A or 150E (enterprise investment scheme or seed enterprise investment scheme) in respect of the shares;
relief under Schedule 5BB (seed enterprise investment scheme: re-investment) in consequence of which SEIS re-investment relief is attributable to the shares (see paragraph 4 of that Schedule);
relief under Chapter 6 of Part 4 of ITA 2007 (losses on disposal of shares) in respect of the shares;
EIS relief (within the meaning of Part 5 of that Act) in respect of the shares;
SEIS relief (within the meaning of Part 5A of that Act) in respect of the shares.
Information
31
In paragraph 16 (information) —
a
in sub-paragraph (6), for “or 11(1)” substitute “, 11(1) or 11A”,
b
in sub-paragraph (7), omit the “and” at the end of paragraph (b) and after that paragraph insert —
ba
in relation to paragraph 11A, the claimant, the company, any person controlling the company and any person whom an officer of Revenue and Customs has reason to believe may be a party to the arrangements in question; and
, and
c
in that sub-paragraph, for “and (b)” substitute “, (b) and (ba)”.
Meaning of “arrangements”
32
In paragraph 19 (interpretation), in sub-paragraph (1) for the definition of “arrangements” substitute —
“arrangements” includes any scheme, agreement, understanding, transaction or series of transactions (whether or not legally enforceable);
.
Commencement
33
1
The amendment made by paragraph 29 comes into force on such day as the Treasury may by order appoint.
2
That amendment has effect in relation to shares issued on or after 6 April 2012.
34
1
The amendments made by paragraphs 27 , 28 , 30 and 31 have effect in relation to shares issued on or after 6 April 2012.
2
For the purposes of those paragraphs it does not matter whether the disqualifying arrangements were entered into before or on or after that date.
35
The amendment made by paragraph 32 is treated as having come into force on 6 April 2012.
SCHEDULE 8
Venture capital schemes
Section 40
Introduction
1
Part 6 of ITA 2007 (venture capital trusts) is amended in accordance with paragraphs 2 to 13.
VCT approvals
2
1
Section 274 (requirements for the giving of approval) is amended as follows.
2
In subsection (2), in the list of conditions, at the end insert —
The investment limits condition The company has not made and will not make an investment, in the relevant period, in a company which breaches the permitted investment limits
3
In subsection (3), omit the “and” at the end of paragraph (d), and after paragraph (e) insert
, and
f
the investment limits condition by section 280B.
3
After section 280A insert —
The investment limits condition
280B
1
This section applies for the purposes of the investment limits condition.
2
Where a company (“the investor”) makes an investment (“the current investment”) in another company (“the relevant company”), that investment breaches the permitted investment limits if the total annual investment in the relevant company exceeds the amount for the time being specified in section 292A(1).
3
The total annual investment in the relevant company is the sum of —
a
the amount of the current investment, and
b
the total amount of other relevant investments made in the relevant company (whether or not by the investor) in the year ending with the day on which the current investment is made.
4
A “relevant investment” is made in a company if —
a
an investment (of any kind) in the company is made by a VCT,
b
the company issues shares (money having been subscribed for them), and (at any time) the company provides —
i
a compliance statement under section 205 (enterprise investment scheme), or
ii
a compliance statement under section 257ED (seed enterprise investment scheme),
in respect of the shares, or
c
any other investment is made in the company which is aid received by it pursuant to a measure approved by the European Commission as compatible with Article 107 of the Treaty on the Functioning of the European Union in accordance with the principles laid down in the Community Guidelines on Risk Capital Investments in Small and Medium-sized Enterprises (as those guidelines may be amended or replaced from time to time).
5
For the purposes of subsections (2) and (3), an investment within subsection (4)(b) is regarded as made when the shares are issued.
Qualifying holdings: introduction
4
In section 286 (qualifying holdings: introduction), in subsection (3), omit the “and” at the end of paragraph (k) and after paragraph (l) insert
, and
m
no disqualifying arrangements (see section 299A).
Relaxation of maximum qualifying investment requirement
5
1
Section 287 (maximum qualifying investment requirement) is amended as follows.
2
In subsection (1), after “that” insert “, if the condition in subsection (1A) is met,”.
3
After that subsection insert —
1A
The condition is that —
a
at the time of the issue of the relevant holding the relevant company or any of its qualifying subsidiaries was a member of a partnership or a party to a joint venture,
b
the trade which meets the requirement of section 291 was at that time being carried on, or to be carried on, by those partners in partnership or by the parties to the joint venture, and
c
the other partners or parties to the joint venture include at least one other company.
4
In subsection (2) —
a
for “Subject to subsection (7), the” substitute “The”, and
b
after “exceeds” insert “the relevant fraction of”.
5
After that subsection insert —
2A
The relevant fraction is —
1 N
where “N” is the number of companies (including the relevant company) which, at the time when the relevant holding was issued were members of the partnership or, as the case may be, parties to the joint venture.
6
Omit subsections (6) and (7).
Increase in the maximum amount permitted to be raised annually
6
1
Section 292A (the maximum amount raised annually through risk capital schemes requirement) is amended as follows.
2
In subsection (1) for “£2 million” substitute “£5 million”.
3
In subsection (3) —
a
in paragraph (b), omit sub-paragraph (ii), and
b
after that paragraph insert
, or
c
any other investment is made in the company which is aid received by it pursuant to a measure approved by the European Commission as compatible with Article 107 of the Treaty on the Functioning of the European Union in accordance with the principles laid down in the Community Guidelines on Risk Capital Investments in Small and Medium-sized Enterprises (as those guidelines may be amended or replaced from time to time).
4
In subsection (5) omit “or paragraph 42 of Schedule 15 to FA 2000”.
Acquisition of shares
7
In section 293 (the use of the money raised requirement), after subsection (5) insert —
5A
Employing money on the acquisition of shares in a company does not of itself amount to employing the money for the purposes of a relevant qualifying activity.
Increase in the gross assets limits
8
In section 297 (the gross assets requirement) —
a
in subsections (1)(a) and (2)(a), for “£7 million” substitute “£15 million”, and
b
in subsections (1)(b) and (2)(b), for “£8 million” substitute “£16 million”.
Relaxation of restriction on number of employees
9
In section 297A (the number of employees requirement), in subsections (1) and (2), for “50” substitute “250”.
No disqualifying arrangements requirement
10
After section 299 insert —
The no disqualifying arrangements requirement
299A
1
The relevant holding must not have been issued, nor any money raised by the issue employed, in consequence or anticipation of, or otherwise in connection with, disqualifying arrangements.
2
Arrangements are “disqualifying arrangements” if —
a
the main purpose, or one of the main purposes, of the arrangements is to secure —
i
that a qualifying activity is or will be carried on by the relevant company or a qualifying 90% subsidiary of that company, and
ii
that shares or securities issued by the relevant company may be comprised in any company’s qualifying holdings or that one or more persons may obtain relevant tax relief in respect of such shares which raise money for the purposes of that qualifying activity,
b
that qualifying activity is the relevant qualifying activity by reference to which the requirement in section 293(1)(b) (money raised to be employed within two years for relevant qualifying activity) is met in relation to the relevant holding, and
c
one or both of conditions A and B are met.
3
Condition A is that, as a (direct or indirect) result of the money raised by the issue of the relevant holding being employed as required by section 293(1)(b), an amount representing the whole or the majority of the amount raised is, in the course of the arrangements, paid to or for the benefit of a relevant person or relevant persons.
4
Condition B is that, in the absence of the arrangements, it would have been reasonable to expect that the whole or greater part of the component activities of the relevant qualifying activity would have been carried on as part of another business by a relevant person or relevant persons.
5
For the purposes of this section it is immaterial whether the relevant company is a party to the arrangements.
6
In this section —
“component activities” means —
if the relevant qualifying activity is within section 291(2), the carrying on of a qualifying trade which constitutes that activity, and
if the relevant qualifying activity is within section 291(3), the preparations to carry on a qualifying trade which constitute that activity;
“arrangements” includes any scheme, agreement, understanding, transaction or series of transactions (whether or not legally enforceable);
“relevant person” means a person who is a party to the arrangements or a person connected with such a party;
“qualifying activity” has the same meaning as in section 291;
“relevant tax relief”, in respect of shares, means one or more of the following —
relief under Chapter 6 of Part 4 (losses on disposal of shares) in respect of the shares;
EIS relief (within the meaning of Part 5) in respect of the shares;
SEIS relief (within the meaning of Part 5A) in respect of the shares;
relief under section 150A or 150E of TCGA 1992 (enterprise investment scheme and seed enterprise investment scheme) in respect of the shares;
relief under Schedule 5B to that Act in consequence of which deferral relief is attributable to the shares;
relief under Schedule 5BB to that Act (seed enterprise investment scheme: re-investment) in consequence of which SEIS re-investment relief is attributable to the shares (see paragraph 4 of that Schedule).
Subsidised generation or export of electricity
11
1
Section 303 (meaning of “excluded activities”) is amended as follows.
2
In subsection (1), omit “and” at the end of paragraph (k) and after that paragraph insert —
ka
the subsidised generation or export of electricity, and
.
3
In subsection (2), omit the “and” at the end of paragraph (e) and after paragraph (f) insert
, and
g
section 309A (subsidised generation or export of electricity).
12
After section 309 insert —
Excluded activities: subsidised generation or export of electricity
309A
1
This section supplements section 303(1)(ka).
2
Electricity is exported if it is exported onto a distribution system or transmission system (within the meaning of section 4 of the Electricity Act 1989).
3
The generation of electricity is “subsidised” if a person receives a FIT subsidy in respect of the electricity generated.
4
The export of electricity is “subsidised” if a person receives a FIT subsidy in respect of the electricity exported.
5
But the generation or export of electricity is not to be taken to fall within section 303(1)(ka) if Condition A, B or C is met.
6
Condition A is that the generation or export is carried on by —
a
a community interest company,
b
a co-operative society,
c
a community benefit society, or
d
a NI industrial and provident society.
7
Condition B is that the plant used to generate the electricity relies wholly or mainly on anaerobic digestion.
8
Condition C is that the electricity is hydroelectric power.
9
For the purposes of this section —
“anaerobic digestion” means the bacterial fermentation of organic material in the absence of free oxygen (excluding anaerobic digestion of sewage or material in a landfill);
“community benefit society” means —
a society registered under the Co-operative and Community Benefit Societies and Credit Unions Act 1965 as a community benefit society, or
a pre-2010 Act society (as defined at section 4A(1) of that Act) which meets the condition in section 1(3) of that Act;
“co-operative society” means —
a society registered under the Co-operative and Community Benefit Societies and Credit Unions Act 1965 as a co-operative society, or
a pre-2010 Act society (as defined at section 4A(1) of that Act) which meets the condition in section 1(2) of that Act;
“FIT subsidy” means —
a financial incentive under a scheme established by virtue of section 41 of the Energy Act 2008 (powers to amend licence conditions etc: feed-in tariffs) to encourage small-scale low-carbon generation of electricity, or
a financial incentive under a similar scheme established in a territory outside the United Kingdom to encourage small-scale low-carbon generation of electricity;
“NI industrial and provident society” means a society registered under the Industrial and Provident Societies Act (Northern Ireland) 1969 (c. 24 (N.I.)) ;
“small-scale low-carbon generation” has the meaning given by section 41(4) of the Energy Act 2008.
13
In section 310 (excluded activities: provision of services or facilities for another business), in subsection (1)(a), for “(k)” substitute “(ka)”.
Powers to amend
14
In section 311 (power to amend Chapter by Treasury order), the existing provision becomes subsection (1) and after that subsection insert —
2
An order under this section may —
a
make different provision for different cases or purposes, or
b
include such transitional provision as the Treasury consider appropriate.
Information
15
After section 312 insert —
Power to require information relating to disqualifying arrangements
312A
1
Subsection (2) applies if an officer of Revenue and Customs has reason to believe that the relevant company has issued the relevant holding to the investing company in consequence of or, or otherwise in connection with, disqualifying arrangements (within the meaning of section 299A(2)).
2
The officer may by notice require any person concerned to supply the officer within such time as may be specified in the notice with —
a
a declaration in writing stating whether or not, according to the information which that person has or can reasonably obtain, such arrangements exist or have existed, and
b
such other information as the officer may reasonably require for the purposes of section 299A and as that person has or can reasonably obtain.
3
The period specified in a notice under subsection (2) must be at least 60 days.
4
A “person concerned” means —
a
the relevant company,
b
the investing company,
c
any person connected with either of those companies, and
d
any person whom the officer has reason to believe is or was a party to the arrangements in question.
16
In section 313 (interpretation of Chapter 4), in subsection (5), after “Chapter” insert “(other than section 312A)”.
Consequential amendment
17
In section 98 of TMA 1970 (special returns, etc), in the first column of the Table, before the entry for “regulations under Chapter 5 of Part 6 of ITA 2007” insert —
section 312A of ITA 2007;
.
Commencement and transitional provision
18
1
The amendments made by paragraphs 2 and 3 have effect in relation to investments made on or after the day on which this Act is passed.
2
But nothing in sub-paragraph (1) prevents investments made before that day constituting a “relevant investment” for the purposes of section 280B of ITA 2007 (as inserted by paragraph 3 ) for the purposes of determining whether the investment limits condition in section 274 of that Act is breached by an investment made on or after that day.
19
1
The amendments made by paragraphs 4 , 5 , 6(1) and (3) , 10 , 15 and 16 have effect for the purpose of determining whether shares or securities issued on or after 6 April 2012 are to be regarded as comprised in a company’s qualifying holdings.
2
But for the purposes of paragraphs 4 , 10 , 15 and 16 it does not matter whether the disqualifying arrangements were entered into before or on or after 6 April 2012.
20
1
The amendments made by paragraphs 6(2) , 8 and 9 come into force on such day as the Treasury may by order appoint.
2
Those amendments have effect for the purpose of determining whether shares or securities issued on or after 6 April 2012 are to be regarded as comprised in a company’s qualifying holdings.
21
1
Paragraph 7 is to be treated as having come into force on 6 April 2012.
2
The amendments made by that paragraph do not have effect in relation to an investment made by a VCT of protected money.
3
“Protected money” means —
a
money raised by the issue before 6 April 2012 of shares in or securities of the VCT, and
b
money derived from the investment of such money.
22
1
Subject to sub-paragraph (2), the amendments made by paragraphs 11 to 13 have effect in relation to a relevant holding issued on or after 23 March 2011.
2
Those amendments do not have effect in relation to any relevant holding issued before 6 April 2012 if the relevant company, or a qualifying 90% subsidiary of that company, first began to carry on activities of the kind mentioned in section 303(1)(ka) of ITA 2007 before that day.
3
Until such time as section 1 of the Co-operative and Community Benefit Societies and Credit Unions Act 2010 comes into force, section 309A(6) of ITA 2007 (as inserted by paragraph 10 of this Schedule) has effect as if for paragraphs (b) and (c) there were substituted —
b
a society registered under the Industrial and Provident Societies Act 1965,
.
SCHEDULE 9
Capital allowances for plant and machinery: anti-avoidance
Section 42
Transactions to obtain allowances
1
For section 215 of CAA 2001 substitute —
Transactions to obtain tax advantages
215
1
Allowances under this Part are restricted under the applicable sections if B enters into a relevant transaction with S that either —
a
has an avoidance purpose, or
b
is part of, or occurs as a result of, a scheme or arrangement that has an avoidance purpose.
2
Subsection (1)(b) may be satisfied —
a
whether the scheme or arrangement was made before or after the relevant transaction was entered into, and
b
whether or not the scheme or arrangement is legally enforceable.
3
A transaction, scheme or arrangement has an “avoidance purpose” if the main purpose, or one of the main purposes, of a party in entering into the transaction, scheme or arrangement is to enable a person to obtain a tax advantage under this Part that would not otherwise be obtained.
4
The reference in subsection (3) to obtaining a tax advantage that would not otherwise be obtained includes obtaining an allowance that is in any way more favourable to a person than the one that would otherwise be obtained.
5
If the tax advantage is of a kind described in subsection (7), “the applicable sections” are sections 217 and 218ZA(5).
6
Otherwise, “the applicable sections” are sections 217 and 218ZA(1) or, as the case may be, 218ZA(3).
7
The kinds of tax advantage are —
a
that an allowance to which B is entitled for a chargeable period is calculated using a percentage rate that is higher than the one that would otherwise be used, or
b
that B is entitled to an allowance in respect of an amount of capital expenditure sooner than B would otherwise be entitled to it.
8
If a transaction, scheme or arrangement involves —
a
a tax advantage of a kind described in subsection (7), and
b
a tax advantage not of such a kind,
subsections (5) and (6) have effect separately in relation to each tax advantage.
Restrictions on writing-down allowances
2
In section 57(3) of CAA 2001 (available qualifying expenditure), after “section 218(1),” insert “218ZA(1) or (3),”.
3
In section 214 of that Act (connected persons), after “218” insert “(or, as the case may be, 218ZA(3))”.
4
In section 216 of that Act (sale and leaseback, etc), in subsection (1), after “218” insert “(or, as the case may be, 218ZA(3))”.
5
1
Section 218 of that Act (restriction on B’s qualifying expenditure) is amended as follows.
2
In subsection (1), for “section 214, 215 or 216” substitute “section 214 or 216”.
3
At the end insert —
5
This section is subject to section 218ZA(3).
4
Accordingly, in the heading of that section, insert at the end “ : section 214 or 216 ”.
6
After section 218 of that Act insert —
Restrictions on writing-down allowances: section 215
218ZA
1
If this subsection applies as a result of section 215, all or part of B’s expenditure under the relevant transaction is to be left out of account in determining B’s available qualifying expenditure.
2
The amount of expenditure to be left out of account is —
a
such amount as would or would in effect cancel out the tax advantage mentioned in section 215 (whether that advantage is obtained by B or another person and whether it relates to the relevant transaction or something else), or
b
if the amount found under paragraph (a) exceeds the whole of B’s expenditure under the relevant transaction, the whole of that expenditure.
3
But if subsection (1) applies as a result of section 215 and —
a
section 218 also applies as a result of section 214 or 216, or
b
section 228 also applies by virtue of an election under section 70I(11) or 227,
the amount of expenditure to be left out of account is the greater of X and Y.
4
For the purposes of subsection (3) —
“X” is the amount found under subsection (2), and
“Y” is the amount by which B’s expenditure under the relevant transaction exceeds D (as defined in section 218 or, as the case may be, section 228).
5
If this subsection applies as a result of section 215 —
a
the allowance mentioned in subsection (7)(a) of that section is to be calculated using the rate that would be used without the tax advantage, or (as the case may be)
b
the entitlement mentioned in subsection (7)(b) of that section is to be available as and when it would be available without the tax advantage.
6
Subsection (5) applies whether or not section 218 also applies as a result of section 214 or 216, or section 228 also applies by virtue of an election under section 70I(11) or 227.
Restriction of exception for manufacturers and suppliers
7
1
Section 230 of CAA 2001 (exception for manufacturers and suppliers), as amended by section 41 of this Act, is amended as follows.
2
For subsection (1) substitute —
1
The restrictions in sections 217 and 218 do not apply in relation to any plant or machinery if —
a
the relevant transaction is within section 213(1)(a) or (b),
b
the case does not fall within section 215, and
c
the conditions in subsection (3) are met.
3
Omit subsection (2).
Relevant transactions
8
After section 268D of CAA 2001 insert —
Meaning of “assigns”
268E
1
For the purposes of this Part —
a
a person (“A”) is taken to assign the benefit of a contract, or rights under a contract, to another person (“B”) whenever B becomes entitled, and A ceases to be entitled, to the benefit or rights (whether by assignment, novation, variation or replacement of the contract, by operation of law or otherwise), and
b
references to an assignment are to be read accordingly.
2
Any reference in this Part to the benefit of a contract or to rights under a contract includes a reference to part of the benefit of a contract or to part of the rights under a contract.
Commencement
9
1
The amendments made by paragraphs 1 to 7 of this Schedule have effect in relation to expenditure of B’s that is incurred on or after the start date (regardless of when the relevant transaction was entered into).
2
The amendment made by paragraph 8 of this Schedule has effect in relation to expenditure that is incurred on or after the start date.
3
The start date is —
a
1 April 2012, for corporation tax purposes, and
b
6 April 2012, for income tax purposes.
SCHEDULE 10
Plant and machinery allowances: fixtures
Section 43
Introductory
1
CAA 2001 is amended as follows.
Changes in ownership
2
After section 187 insert —
Effect of changes in ownership of a fixture
187A
1
This section applies if —
a
a person (“the current owner”) is treated as the owner of a fixture as a result of incurring capital expenditure (“new expenditure”) on its provision for the purposes of a qualifying activity carried on by the current owner,
b
the plant or machinery is treated as having been owned at a relevant earlier time by a person as a result of incurring other capital expenditure (“historic expenditure”) on its provision for the purposes of a qualifying activity carried on by that person,
c
the plant or machinery is within paragraph (b) otherwise than as a result of section 538 (contribution allowances for plant and machinery), and
d
a person mentioned in paragraph (b) was entitled to claim an allowance under this Part in respect of the historic expenditure.
2
In this section —
“the past owner” means —
the person mentioned in paragraph (d) of subsection (1), or
if there is more than one amount of historic expenditure in respect of which a person was entitled to claim as mentioned in that paragraph, the person by whom expenditure was incurred most recently;
“relevant earlier time” has the meaning given by section 187B(4) and (5).
3
In determining the current owner’s qualifying expenditure, the new expenditure is to be treated as nil if —
a
the pooling requirement is not satisfied,
b
the fixed value requirement applies but is not satisfied, or
c
the disposal value statement requirement applies but is not satisfied,
in relation to the past owner.
4
The pooling requirement is that —
a
the historic expenditure has been allocated to a pool in a chargeable period beginning on or before the day on which the past owner ceases to be treated as the owner of the fixture, or
b
a first-year allowance has been claimed in respect of that expenditure (or any part of it).
5
The fixed value requirement applies if the past owner is or has been required (as a result of having made a claim in respect of the historic expenditure) to bring the disposal value of the plant or machinery into account in accordance with item 1, 5 or 9 of the Table in section 196.
6
The fixed value requirement is that either —
a
a relevant apportionment of the apportionable sum has been made, or
b
the current owner has obtained the statements mentioned in subsection (8), or copies of them, (directly or indirectly) from the persons who made them and the case is one where the purchaser from the past owner or, as the case may be, lessee was not entitled to claim an allowance under this Part in respect of capital expenditure incurred on the fixture.
7
For the purposes of subsection (6)(a) a relevant apportionment of the apportionable sum is made if —
a
the tribunal determines the part of the apportionable sum that constitutes the disposal value, on an application made by one of the affected parties before the end of the relevant 2 year period, or
b
an election is made, in respect of the apportionable sum, by the affected parties jointly —
i
before the end of the relevant 2 year period, or
ii
if an application is made as mentioned in paragraph (a) and not determined or withdrawn by the end of that period, before that application is determined or withdrawn.
8
The statements referred to in subsection (6)(b) are —
a
a written statement made by the purchaser from the past owner or, as the case may be, lessee, that the requirement of subsection (6)(a) has not been met and is no longer capable of being met, and
b
a written statement made by the past owner of the amount of the disposal value that the past owner has in fact brought into account.
9
In subsections (6) to (8) —
a
in a case falling within item 1 or 9 of the Table in section 196 —
“affected parties” means the past owner and the purchaser from the past owner;
“apportionable sum” means the sale price;
“election” means an election under section 198;
“relevant 2 year period” means the period of 2 years beginning with the date when the purchaser from the past owner acquires the qualifying interest;
b
in a case falling within item 5 of that Table —
“affected parties” means the past owner and the lessee;
“apportionable sum” means the capital sum given by the lessee for the lease;
“election” means an election under section 199;
“relevant 2 year period” means the period of 2 years beginning with the date when the lessee is granted the lease.
10
The disposal value statement requirement applies if the past owner is or has been required (as a result of having made a claim in respect of the historic expenditure) to bring the disposal value of the plant or machinery into account in accordance with item 2 or 3 of the Table in section 196 or in accordance with item 7 of the Table in section 61.
11
The disposal value statement requirement is —
a
that the past owner has, no later than 2 years after the date when the past owner ceased to own the plant or machinery, made a written statement of the amount of the disposal value that the past owner is or has been required to bring into account, and
b
the current owner has obtained that statement or a copy of it (directly or indirectly) from the past owner.
Section 187A: supplementary provision
187B
1
It is for the current owner to show —
a
whether the fixed value requirement applies and, if so, is satisfied, and
b
whether the disposal value statement requirement applies and, if so, is satisfied,
and, for this purpose, to provide an officer of Revenue and Customs, on request, with a copy of any tribunal decision, election or statement by reason of which a requirement mentioned in paragraph (a) or (b) is satisfied.
2
Where —
a
the fixed value requirement applies and is met by reason of section 187A(6)(b) being satisfied, or
b
the disposal value requirement applies,
subsections (2) and (4) of section 200 apply in relation to the making of a statement within section 187A(8)(b) or (11)(a) and an amount specified in such a statement, as they apply in relation to an election and an amount specified in an election.
3
For the purposes of section 187A, the current owner and the past owner may be the same person.
4
In that section “relevant earlier time” means (subject to subsection (5)) any time which falls before the earliest time when the current owner is treated as owning the plant or machinery as a result of incurring the new expenditure.
5
If, before the earliest time when the current owner is treated as owning the plant or machinery as a result of incurring the new expenditure —
a
any person has ceased to own the plant or machinery as a result of a sale,
b
the sale was not a sale of the plant or machinery as a fixture, and
c
the buyer and seller were not connected persons at the time of the sale,
the relevant earlier time does not include any time before the seller ceased to own the plant or machinery.
6
Nothing in section 187A(3) affects the disposal value (if any) which falls to be brought into account by the past owner (as a result of having made a claim in respect of the historic expenditure).
7
Expressions used in this section have the same meaning as in section 187A.
3
In section 198 (election to apportion sale price on sale of qualifying interest) —
a
in subsection (1), after “item 1” insert “or 9”, and
b
in subsection (2)(a), after “item 1” insert “or (as the case may be) 9”.
4
1
Section 201 (elections under sections 198 and 199: procedure) is amended as follows.
2
In subsection (1), at the end insert —
But this is subject to subsection (1A).
3
After that subsection insert —
1A
Where —
a
the requirement of subsection (6) of section 187A (effect of changes in ownership of fixture: fixed value requirement) applies, or may in future apply by reason of a person being required to bring the disposal value of plant and machinery into account in accordance with item 1, 5 or 9 of the Table in section 196,
b
an application is made to the tribunal for the purposes of section 187A(7)(a), and
c
that application is not determined before the end of the period mentioned in subsection (1) of this section,
subsection (1) does not apply and an election within section 187A(7)(b) may be made by notice to an officer of Revenue and Customs at any time before the tribunal determines the application or the application is withdrawn.
4
For subsection (3)(f) substitute —
f
in relation to each of the persons making the election —
i
that person’s Unique Taxpayer Reference, or
ii
that the person does not have a Unique Taxpayer Reference.
5
1
In section 563 (procedure for determining certain questions affecting two or more persons), in subsection (1)(a) for “two” substitute “one”.
2
Accordingly, in the heading for that section for “ two ” substitute “ one ”.
Fixtures on which business premises renovation allowance has been made
6
After section 186 insert —
Fixtures on which a business premises renovation allowance has been made
186A
1
This section applies if —
a
a person (“the past owner”) has at any time claimed an allowance to which that person was entitled under Part 3A (business premises renovation allowances) in respect of qualifying expenditure under that Part incurred in respect of a qualifying building (“Part 3A expenditure”),
b
there has been a balancing event within section 360N(1) as a result of which an asset representing the whole or part of the Part 3A expenditure (“the Part 3A asset”) ceased to be owned by the past owner,
c
the Part 3A asset was or included plant or machinery, and
d
the current owner makes a claim under this Part in respect of expenditure (“new expenditure”) incurred —
i
on the provision of the plant or machinery, and
ii
at a time when it is a fixture.
2
If the new expenditure exceeds the maximum allowable amount, the excess is to be left out of account in determining the current owner’s qualifying expenditure.
3
If the proceeds from the balancing event mentioned in subsection (1)(b) exceed R, the maximum allowance amount is —
F T × R
where —
F is so much of the proceeds from the balancing event as are attributable to the fixture,
T is the total amount of the proceeds from the balancing event, and
R is the qualifying expenditure incurred by the past owner on the Part 3A asset less the net Part 3A allowances in respect of that asset.
4
Where subsection (3) does not apply, the maximum allowable amount is so much of the proceeds from the balancing event as are attributable to the fixture.
5
For the purposes of subsection (3) the “net Part 3A allowances” in respect of the Part 3A asset means —
a
the total of any allowances made under Part 3A in respect of the past owner’s qualifying expenditure, less
b
the total of any balancing charges made under that Part in respect of that expenditure.
6
For the purposes of this section, the current owner of the plant or machinery is —
a
the person who acquired the Part 3A asset from the past owner, or
b
any person who is subsequently treated as the owner of the plant or machinery.
7
In section 9 (interaction between fixtures claims and other claims), in subsection (2) —
a
in paragraph (a), after “Part 3” insert “, 3A”, and
b
in paragraph (b), after “section 186(2)” insert “, 186A(2)”.
8
In section 57 (available qualifying expenditure), in subsection (3), after “section 186(2)” insert “, 186A(2)”.
9
In section 198 (election to apportion sale price on sale of qualifying interest), for subsection (5)(a) substitute —
a
sections 186, 186A and 187 (fixtures on which industrial buildings allowance, business premises renovation allowance or research and development allowance has been made),
.
10
In section 199 (election to apportion capital sum given by lessee on grant of lease), for subsection (5)(a) substitute —
a
sections 186, 186A and 187 (fixtures on which industrial buildings allowance, business premises renovation allowance or research and development allowance has been made),
.
Commencement and transitionals
11
The amendments made by paragraphs 2 to 5 have effect —
a
for income tax purposes, in relation to new expenditure incurred on or after 6 April 2012, and
b
for corporation tax purposes, in relation to new expenditure incurred on or after 1 April 2012.
12
The amendments made by paragraph 6 to 10 have effect —
a
for income tax purposes, in relation to balancing events which occur on or after 6 April 2012, and
b
for corporation tax purposes, in relation to balancing events which occur on or after 1 April 2012.
13
1
Where (ignoring this sub-paragraph) plant or machinery would be treated for the purposes of subsection (1)(b) of section 187A of CAA 2001 as having been owned by a person for a period which began and ended before the commencement date, that period of ownership is, for those purposes, to be regarded as not occurring at a relevant earlier time.
2
Section 187A(3)(a) of CAA 2001 (imposition of the pooling requirement) does not apply if the period for which the plant or machinery is treated as having been owned by the past owner as a result of incurring the historic expenditure ends no later than the end of the period of 2 years beginning with the commencement date.
3
“The commencement date” means —
a
for income tax purposes, 6 April 2012, and
b
for corporation tax purposes, 1 April 2012.
SCHEDULE 11
Expenditure on plant and machinery for use in designated assisted areas
Section 44
1
CAA 2001 is amended as follows.
2
In section 39 (first-year allowances available for certain types of qualifying expenditure only), at the appropriate place in the list insert —
section 45K expenditure on plant and machinery for use in designated assisted areas.
3
After section 45J insert —
Expenditure on plant and machinery for use in designated assisted areas
45K
1
Expenditure is first-year qualifying expenditure if —
a
it is incurred by a company on the provision of plant or machinery for use primarily in an area which at the time the expenditure is incurred is a designated assisted area,
b
it is incurred in the period of 5 years beginning with 1 April 2012,
c
Conditions A to E are met.
2
“Designated assisted area” means an area which —
a
is designated by an order made by the Treasury, and
b
falls wholly within an assisted area.
3
An area may be designated by an order under subsection (2)(a) only if at the time the order is made —
a
the area falls wholly within an enterprise zone, and
b
a memorandum of understanding, in respect of the area, relating to the availability of allowances in respect of expenditure to which this section applies has been entered into by the Treasury and the responsible authority for the area.
4
An order made under subsection (2)(a) may provide that an area designated by the order is to be treated as having been so designated at times falling before the order is made.
5
But where an area has previously been designated by an order under subsection (2)(a), section 14 of the Interpretation Act 1978 does not apply, by virtue of subsection (4), so as to imply a power to make an order (“the new order”) treating that area (or any part of it) as if it were not so designated at times falling before the new order is made.
6
Condition A is that the company is within the charge to corporation tax.
7
Condition B is that the expenditure is incurred for the purposes of a qualifying activity within section 15(1)(a) or (f).
8
Condition C is that the expenditure is incurred for the purposes of —
a
a business of a kind not previously carried on by the company,
b
expanding a business carried on by the company, or
c
starting up an activity which relates to a fundamental change in a product or production process of, or service provided by, a business carried on by the company.
9
Condition D is that the plant or machinery is unused and not second-hand.
10
Condition E is that the expenditure is not replacement expenditure.
11
“Replacement expenditure” means expenditure incurred on the provision of plant or machinery (“new plant or machinery”) intended to perform the same or a similar function, for the purposes of the qualifying activity of the company, as other plant or machinery (“replaced plant or machinery”) —
a
on which the company has previously incurred qualifying expenditure, and
b
which has been superseded by the new plant or machinery.
12
But if and to the extent that —
a
the expenditure is incurred on the provision of new plant or machinery that is capable of and intended to perform a significant additional function, when compared to the replaced plant or machinery, and
b
the additional function enhances the capacity or productivity of the qualifying activity in question,
so much of the expenditure as is attributable to the additional function is not to be regarded as replacement expenditure.
13
The part of the expenditure attributable to the additional function is to be determined on a just and reasonable basis.
14
In this section —
“assisted area” means —
an area specified as a development area under section 1 of the Industrial Development Act 1982, or
Northern Ireland;
“enterprise zone” means an area recognised by the Treasury as an area in respect of which there is a special focus on economic development and identified on a map published by the Treasury for the purposes of this section;
“the responsible authority”, for an area, means —
if the area is in England, a local authority for all or part of the area or two or more such local authorities,
if the area is in Scotland, the Scottish Ministers,
if the area is in Wales, the Welsh Ministers, and
if the area is in Northern Ireland, the Department of Enterprise, Trade and Investment in Northern Ireland.
15
The Treasury may by order amend the definition of “assisted area” in subsection (14) in consequence of any changes made to the areas in the United Kingdom granted assisted area status by virtue of Article 107(3) of the Treaty on the Functioning of the European Union.
16
This section is subject to —
section 45L (plant or machinery partly for use outside designated assisted areas),
section 45M (exclusions from section 45K allowances),
section 45N (effect of plant or machinery subsequently being primarily used in an area other than a designated assisted area), and
section 46 (general exclusions).
Exclusion of plant or machinery partly for use outside designated assisted areas
45L
1
Expenditure on plant or machinery is not first-year qualifying expenditure under section 45K if —
a
at the time when it is incurred, the company incurring it intends the plant or machinery to be used partly in a non-designated area, and
b
the main purpose, or one of the main purposes, for which any person is a party to the relevant arrangements is the obtaining of a first-year allowance, or a greater first-year allowance, in respect of the part of the expenditure that is attributable to that intended use in a non-designated area.
2
For the purposes of subsection (1)(b), the part of the expenditure that is attributable to that intended use in a non-designated area is to be determined on a just and reasonable basis.
3
In this section —
“non-designated area” means an area which is not a designated assisted area within the meaning of section 45K;
“the relevant arrangements” means —
the transaction under which the expenditure is incurred, and
any scheme or arrangements of which that transaction forms part.
Exclusions from allowances under section 45K
45M
1
Expenditure incurred by a person is not first-year qualifying expenditure under section 45K if it is within subsection (2), (4), (6) or (7).
2
Expenditure is within this subsection if, at the time a claim is made under section 3 for a section 45K allowance in respect of the expenditure, the person who incurred the expenditure is, or forms part of, an undertaking within subsection (3).
3
An undertaking is within this subsection if one or both of the following conditions are met —
a
it is reasonable to assume that the undertaking would be regarded as a firm in difficulty for the purposes of the Community Guidelines on State Aid for Rescuing and Restructuring Firms in Difficulty (2004/C 244/02);
b
the undertaking is subject to an outstanding recovery order made by virtue of Article 108(2) of the Treaty on the Functioning of the European Union (Commission Decision declaring aid illegal and incompatible with the common market).
4
Expenditure is within this subsection if it is incurred for the purposes of a qualifying activity —
a
in the fishery or aquaculture sector, as covered by Council Regulation (EC) No 104/2000 ,
b
in the coal sector, steel sector, shipbuilding sector or synthetic fibres sector,
c
relating to the management of waste of undertakings, or
d
relating to —
i
the primary production of agricultural products,
ii
on-farm activities necessary for preparing an animal or plant product for the first sale, or
iii
the first sale of agricultural products by a primary producer to wholesalers, retailers or processors, in circumstances where that sale does not take place on separate premises reserved for that purpose.
5
In subsection (4)(c) the reference to waste of undertakings does not include waste of the person who incurred the expenditure or of any other person forming part of the same undertaking as that person.
6
Expenditure is within this subsection if it is incurred on a means of transport or transport equipment for the purposes of a qualifying activity in the road freight sector or the air transport sector.
7
Expenditure is within this subsection if a relevant grant or relevant payment is made towards —
a
that expenditure, or
b
any other expenditure which is incurred by any person in respect of the same designated assisted area, and on the same single investment project, as that expenditure.
8
A section 45K allowance made in respect of first-year qualifying expenditure is to be withdrawn if —
a
after it is made, a relevant grant or relevant payment is made towards that expenditure, or
b
within the period of 3 years beginning when that expenditure was incurred, a relevant grant or relevant payment is made towards any other expenditure which is incurred by any person in respect of the same designated assisted area, and on the same single investment project, as that expenditure.
9
All such assessments and adjustments of assessments are to be made as are necessary to give effect to subsection (8).
10
If a person who has made a return becomes aware that, after making it, anything in it has become incorrect because of the operation of this section, that person must give notice to an officer of Revenue and Customs specifying how the return needs to be amended.
11
The notice must be given within 3 months beginning with the day on which the person first became aware that anything in the return had become incorrect because of the operation of this section.
12
In this section —
“agricultural product”, “coal sector”, “steel sector”, “shipbuilding sector” and “synthetic fibres sector” have the same meaning as in the General Block Exemption Regulation;
“General Block Exemption Regulation” means Commission Regulation (EC) No 800/2008 (General block exemption Regulation);
“management” and “waste” have the meaning given by Article 1 of Directive 2006/12/EC of the European Parliament and of the Council;
“relevant grant or relevant payment” means a grant or payment which is —
a State aid, other than an allowance under this Part, or
a grant or subsidy, other than a State aid, which the Treasury by order declares to be relevant for the purposes of the witholding of a section 45K allowance;
“section 45K allowance” means a first-year allowance in respect of expenditure that is first-year qualifying expenditure under section 45K;
“single investment project” has the same meaning as in the General Block Exemption Regulation;
“undertaking” means —
an autonomous enterprise, or
an enterprise (not within paragraph (a)) and its partner enterprises (if any) and its linked enterprises (if any),
and for this purpose “enterprise”, “autonomous enterprise”, “partner enterprises” and “linked enterprises” have the meaning given by Annex 1 to the General Block Exemption Regulation.
13
Nothing in this section limits references to “State aid” to State aid which is required to be notified to and approved by the European Commission.
14
For the purposes of this section references to expenditure incurred in respect of a designated assisted area includes expenditure incurred on the provision of things for use primarily in that area or on services to be provided primarily in that area.
15
The Treasury may by order make such provision amending this section as appears to them appropriate for the purpose of giving effect to any future amendments of or instruments replacing —
a
the General Block Exemption Regulation,
b
the Community Guidelines on State Aid for Rescuing and Restructuring Firms in Difficulty (2004/C 244/02),
c
Council Regulation (EC) No 104/2000 ,
d
Directive 2006/12/EC of the European Parliament and of the Council, or
e
the Treaty on the Functioning of the European Union.
Effect of plant or machinery subsequently being primarily for use outside designated assisted areas
45N
1
Expenditure on the provision of plant or machinery is to be treated as never having been first-year qualifying expenditure under section 45K if, at any relevant time —
a
the primary use to which the plant and machinery is put is other than in an area which was a designated assisted area within the meaning of section 45K at the time the expenditure was incurred, or
b
the plant or machinery is held for use otherwise than primarily in an area which was such a designated assisted area at that time.
2
“Relevant time” means a time which —
a
falls within the relevant period, and
b
is a time when the plant or machinery is owned by —
i
the person who incurred the expenditure, or
ii
a person who is, or at any time in that period has been, connected with that person.
3
“The relevant period” means the period of 5 years beginning with —
a
the day on which the plant or machinery in question is first brought into use for the purposes of a qualifying activity carried on by the company, or
b
if earlier, the day on which it is first held for such use.
4
All such assessments and adjustments of assessments are to be made as are necessary to give effect to subsection (1).
5
If a person who has made a return becomes aware that, after making it, anything in it has become incorrect because of the operation of this section, that person must give notice to an officer of Revenue and Customs specifying how the return needs to be amended.
6
The notice must be given within 3 months beginning with the day on which the person first became aware that anything in the return had become incorrect because of the operation of this section.
4
In section 46 (general exclusions applying to first-year qualifying expenditure), in subsection (1), at the appropriate place in the list insert —
section 45K (expenditure on plant and machinery for use in designated assisted areas).
5
1
Section 52 (first-year allowances) is amended as follows.
2
In subsection (3), at the appropriate place in the Table insert —
Expenditure qualifying under section 45K (expenditure on plant and machinery for use in designated assisted areas) 100%
3
In subsection (5) —
a
omit the “and” at the end of the entry for section 212T, and
b
after that entry insert —
section 212U (cap on first-year allowances: expenditure on plant and machinery for use in designated assisted areas), and
.
6
In section 52A (prevention of double relief) for the words after “not” substitute
claim —
a
an annual investment allowance and a first-year allowance in respect of the same expenditure, or
b
first-year allowances under two or more of the provisions listed in section 39 in respect of the same expenditure.
7
1
In Chapter 16B (cap on first-year allowances: zero-emission goods vehicles), after section 212T insert —
Cap on first-year allowances: expenditure on plant and machinery for use in designated assisted areas
212U
1
A section 45K allowance is not available in respect of expenditure (“the current expenditure”) incurred by a person (“the investor”) in respect of a particular designated assisted area —
a
if section 45K allowances have previously been made to any person in respect of P&M expenditure of 125 million euros incurred in respect of that area and on the same single investment project as the current expenditure, or
b
(where paragraph (a) does not apply) if, and to the extent that, the aggregate of —
i
the P&M expenditure incurred by any person in respect of that area, and on the same single investment project as the current expenditure, in respect of which section 45K allowances have previously been made, and
ii
the current expenditure,
exceeds 125 million euros.
2
For the purposes of subsection (1), any reference to P&M expenditure incurred in respect of a designated assisted area is a reference to expenditure incurred on the provision of plant or machinery for use primarily in that area.
3
For the purposes of subsection (1), expenditure incurred in a currency other than the euro is to be converted into its equivalent in euros using the spot rate of exchange for the day on which the expenditure is incurred.
4
The Treasury may by regulations increase the amount specified in subsection (1)(a) and (b).
5
In this section —
“designated assisted area” has the meaning given by section 45K;
“section 45K allowance” means a first-year allowance in respect of expenditure that is first-year qualifying expenditure under section 45K;
“single investment project” has the same meaning as in Commission Regulation (EC) No 800/2008 (General block exemption Regulation).
2
Accordingly, in the heading for that Chapter omit “ : zero-emission goods vehicles ”.
8
The amendments made by this Schedule have effect for chargeable periods ending on or after 1 April 2012.
SCHEDULE 12
Foreign income and gains
Section 47
PART 1
Increased remittance basis charge
Increased charge
1
Chapter A1 of Part 14 of ITA 2007 (remittance basis) is amended as follows.
2
1
Section 809C (claim for remittance basis by long-term UK resident: nomination of foreign income and gains to which section 809H(2) is to apply) is amended as follows.
2
In subsection (1), for paragraph (b) substitute —
b
meets the 12-year residence test or the 7-year residence test for that year.
3
After that subsection insert —
1A
An individual meets the 12-year residence test for a tax year if the individual has been UK resident in at least 12 of the 14 tax years immediately preceding that year.
1B
An individual meets the 7-year residence test for a tax year if the individual —
a
does not meet the 12-year residence test for that year, but
b
has been UK resident in at least 7 of the 9 tax years immediately preceding that year.
4
In subsection (4), for “£30,000” substitute
—
a
for an individual who meets the 12-year residence test for that year, £50,000;
b
for an individual who meets the 7-year residence test for that year, £30,000.
3
1
Section 809H (claim for remittance basis by long-term UK resident: charge) is amended as follows.
2
In subsection (1), for paragraph (c) substitute —
c
the individual meets the 12-year residence test or the 7-year residence test for the relevant tax year.
3
After that subsection insert —
1A
See section 809C(1A) and (1B) for when an individual meets the 12-year residence test or the 7-year residence test for a tax year.
4
In subsection (4), for “£30,000”, in each place it occurs, substitute “the applicable amount”.
5
After subsection (5A) insert —
5B
The applicable amount” is —
a
if the individual meets the 12-year residence test for the relevant tax year, £50,000;
b
if the individual meets the 7-year residence test for the relevant tax year, £30,000.
4
For section 809V substitute —
Money paid to the Commissioners
809V
1
Subsection (2) applies to income or chargeable gains of an individual if —
a
the income or gains would (but for subsection (2)) be regarded as remitted to the United Kingdom by virtue of the bringing of money to the United Kingdom,
b
the money is brought to the United Kingdom by way of one or more direct payments to the Commissioners, and
c
the payments are made in relation to a tax year to which section 809H applies as regards the individual.
2
The income or chargeable gains are to be treated as not remitted to the United Kingdom to the extent that the payments do not exceed the applicable amount (as defined in section 809H).
3
Subsection (2) does not apply to payments if or to the extent that they are repaid by the Commissioners.
Application of Part 1
5
The amendments made by this Part of this Schedule have effect for the tax year 2012-13 and subsequent tax years.
PART 2
Remittance for investment purposes
Relief for investments
6
For the italic heading preceding section 809V substitute “ Relief for money used to pay tax etc ”.
7
After section 809V insert —
Business investment relief
Money or other property used to make investments
809VA
1
Subsection (2) applies if —
a
a relevant event occurs,
b
but for subsection (2), income or chargeable gains of an individual would be regarded as remitted to the United Kingdom by virtue of that event, and
c
the individual makes a claim for relief under this section.
2
The income or gains are to be treated as not remitted to the United Kingdom.
3
A “relevant event” occurs if money or other property —
a
is used by a relevant person to make a qualifying investment, or
b
is brought to or received in the United Kingdom in order to be used by a relevant person to make a qualifying investment.
4
Subsection (1)(b) includes a case where income or gains would be treated under section 809Y as remitted to the United Kingdom by virtue of the relevant event.
5
Subsection (2) applies by virtue of subsection (3)(b) to the extent only that the investment is made within the period of 45 days beginning with the day on which the money or other property is brought to or received in the United Kingdom.
6
Where some but not all of the money or other property is used to make the investment within that 45-day period, the part of the income or gains to which subsection (2) applies is to be determined on a just and reasonable basis.
7
Subsection (2) does not apply if the relevant event occurs, or the investment is made, as part of or as a result of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax.
8
A claim for relief under this section must be made on or before the first anniversary of the 31 January following the tax year in which the income or gains would, but for subsection (2), be regarded as remitted to the United Kingdom by virtue of the relevant event.
Failure to invest within 45 days
809VB
1
This section applies to any portion of the income or gains to which section 809VA(2) does not apply because the investment was not made within the period mentioned in section 809VA(5) (“the 45-day period”).
2
That portion is to be treated as not remitted to the United Kingdom to the extent that the remaining money or other property is taken offshore within the 45-day period.
3
Where some but not all of the remaining money or other property is taken offshore within the 45-day period, the part of the income or gains to which subsection (2) applies is to be determined on a just and reasonable basis.
4
If any remaining money or other property is taken offshore within the 45-day period, nothing in subsection (2) prevents anything subsequently done in relation to it (or anything deriving from it) from counting as a remittance of the underlying income or gains to the United Kingdom at the time when the thing is subsequently done.
5
A reference to the “remaining” money or other property is to so much of the money or other property brought to or received in the United Kingdom as is not used within the 45-day period to make the investment (which may in some cases be all of it).
Qualifying investments
809VC
1
For the purposes of section 809VA, a person makes an investment if —
a
shares in a company are issued to the person, or
b
the person makes a loan (secured or unsecured) to a company.
2
The company is referred to as “the target company”.
3
The shares or the person’s rights under the loan (or both) forming the subject of the investment are referred to as “the holding”.
4
The investment counts as a “qualifying investment” if conditions A and B are met when the investment is made.
5
Conditions A and B are defined in sections 809VD and 809VF.
6
A reference in this section to “shares” includes any securities.
7
If a loan agreement authorises a company to draw down amounts of a loan over a period of time —
a
entry into the agreement does not count for the purposes of this section as the making of a loan, but
b
a separate loan is to be treated as made each time an amount is drawn down under the agreement.
8
Accordingly —
a
a separate investment is treated as made each time an amount is drawn down under the agreement, and
b
the reference in subsection (3) to the person’s rights under the loan applies only to so much of the person’s rights as relate to the drawdown of that particular amount.
Condition A
809VD
1
Condition A is that the target company is —
a
an eligible trading company,
b
an eligible stakeholder company, or
c
an eligible holding company.
2
A company is an “eligible trading company” if —
a
it is a private limited company,
b
it carries on one or more commercial trades or is preparing to do so within the next 2 years, and
c
carrying on commercial trades is all or substantially all of what it does (or of what it is reasonably expected to do once it begins trading).
3
A company is an “eligible stakeholder company” if —
a
it is a private limited company,
b
it exists wholly for the purpose of making investments in eligible trading companies (ignoring any minor or incidental purposes), and
c
it holds one or more such investments or is preparing to do so within the next 2 years.
4
The reference in subsection (3) to making investments is to be read in accordance with section 809VC.
5
A company is an “eligible holding company” if —
a
it is a member of an eligible trading group or of an eligible group that is reasonably expected to become an eligible trading group within the next 2 years,
b
an eligible trading company in the group is a 51% subsidiary of it, and
c
if the ordinary share capital that it owns in the eligible trading company is owned indirectly, each intermediary in the series is also a member of the group.
6
“Group” means a parent company and its 51% subsidiaries.
7
“Parent company” means a company that —
a
has one or more 51% subsidiaries, but
b
is not itself a 51% subsidiary of any company.
8
A group is an “eligible group” if the parent company and each of its 51% subsidiaries are private limited companies.
9
A group is an “eligible trading group” if —
a
it is an eligible group, and
b
carrying on commercial trades is all or substantially all of what the group does (taking the activities of its members as a whole).
10
The reference in subsection (5) to owning ordinary share capital indirectly is to be read in accordance with section 1155 of CTA 2010.
11
A company is a “private limited company” if —
a
it is a body corporate whose liability is limited,
b
it is not a limited liability partnership, and
c
none of its shares are listed on a recognised stock exchange.
Commercial trades
809VE
1
Section 809VD is to be read in accordance with this section.
2
A reference to a “trade” also includes —
a
anything that is treated for corporation tax purposes as if it were a trade, and
b
a business carried on for generating income from land (as defined in section 207 of CTA 2009).
3
A trade is a “commercial trade” if it is conducted on a commercial basis and with a view to the realisation of profits.
4
The carrying on of activities of research and development from which it is intended that a commercial trade will be derived, or will benefit, is to be treated as the carrying on of a commercial trade.
5
But preparing to carry on activities within subsection (4) is not to be treated as the carrying on of a commercial trade.
Condition B
809VF
1
Condition B is that no relevant person has (directly or indirectly) obtained or become entitled to obtain any related benefit, and no relevant person expects to obtain any such benefit.
2
A “benefit” —
a
includes the provision of anything that would not be provided to the relevant person in the ordinary course of business, or would be provided but on less favourable terms, but
b
does not include the provision of anything provided to the relevant person in the ordinary course of business and on arm’s length terms.
3
A benefit is “related” if —
a
it is directly or indirectly attributable to the making of the investment (whether it is obtained before or after the investment is made), or
b
it is reasonable to assume that the benefit would not be available in the absence of the investment.
4
For the purposes of subsection (2) —
a
a reference to the provision of anything is to the provision of anything in money or money’s worth, including property, capital, goods or services of any kind, and
b
“provision” includes any arrangement that allows a person to enjoy or benefit from the thing in question (whether temporarily or permanently).
Income or gains treated as remitted following certain events
809VG
1
Subsection (2) applies if —
a
income or chargeable gains are treated under section 809VA(2) as not remitted to the United Kingdom as a result of a qualifying investment,
b
a potentially chargeable event occurs after the investment is made, and
c
the appropriate mitigation steps are not taken within the grace period allowed for each step.
2
The affected income or gains are to be treated as having been remitted to the United Kingdom immediately after the end of the relevant grace period.
3
Where the step required by section 809VI(2)(a) is not taken within the grace period allowed for that step, “the relevant grace period” is the grace period allowed for that step.
4
Otherwise, “the relevant grace period” is the grace period allowed for the step required by section 809VI(1) or (2)(b).
5
“The affected income or gains” means such portion of the income or gains mentioned in subsection (1)(a) as reflects the portion of the investment affected by the potentially chargeable event.
6
The portion of the investment affected is —
a
if the potentially chargeable event is a disposal of a part of the holding (or a part of the remaining holding), a portion equal to the portion of the holding (or remaining holding) being disposed of, and
b
otherwise, the whole of the investment.
7
Sections 809VN (order of disposals etc) and 809VO (investments made from mixed funds) make further provision for the purposes of this section.
8
If a qualifying investment is made using the money or other property mentioned in section 809VA(3) together with other funds —
a
that investment is to be treated as two separate investments, one made using the money or other property mentioned in section 809VA(3) and one made using the other funds, and
b
references in the business investment provisions to “the investment” and “the holding” relate only to the investment made using the money or other property mentioned in section 809VA(3).
9
If the potentially chargeable event mentioned in subsection (1)(b) is not the first such event to affect the investment, the income or gains mentioned in subsection (1)(a) do not include, as respects that investment —
a
any part already treated under subsection (2) as remitted to the United Kingdom as a result of an earlier event,
b
any part contained in amounts already taken offshore or re-invested by way of appropriate mitigation steps following an earlier event, or
c
any part contained in amounts already used to make a tax deposit without which an amount mentioned in paragraph (b) would not have been enough to satisfy section 809VI(1) or (2)(b) (see section 809VK).
Meaning of “potentially chargeable event”
809VH
1
For the purposes of section 809VG, a “potentially chargeable event” occurs if —
a
the target company is for the first time neither an eligible trading company nor an eligible stakeholder company nor an eligible holding company,
b
the relevant person who made the investment (“P”) disposes of all or part of the holding,
c
the extraction of value rule is breached, or
d
the 2-year start-up rule is breached.
2
The extraction of value rule is breached if —
a
value (in money or money’s worth) is received by or for the benefit of P or another relevant person,
b
the value is received —
i
from an involved company, or
ii
from anyone else but in circumstances that are directly or indirectly attributable to the investment or to any other investment made by a relevant person in an involved company, and
c
the value is received other than by virtue of a disposal that is itself a potentially chargeable event.
3
But the extraction of value rule is not breached merely because a relevant person receives value that —
a
is treated for income tax or corporation tax purposes as the receipt of income or would be so treated if that person were liable to such tax, and
b
is paid or provided to the person in the ordinary course of business and on arm’s length terms.
4
Each of the following is an “involved company” —
a
the target company,
b
if the target company is an eligible stakeholder company, any eligible trading company in which it has made or intends to make an investment,
c
if the target company is an eligible holding company, any eligible trading company that is a 51% subsidiary of it, and
d
any company that is connected with a company within paragraph (a), (b) or (c).
5
The 2-year start-up rule is breached if —
a
immediately after the end of the period of 2 years beginning with the day on which the investment was made, the target company is non-operational, or
b
at any time after the end of that period, the target company becomes non-operational.
6
The target company is “non-operational” at any time when —
a
it is an eligible trading company but is not trading,
b
it is an eligible stakeholder company but —
i
it holds no investments in eligible trading companies, or
ii
none of the eligible trading companies in which it holds investments is trading, or
c
it is an eligible holding company but —
i
the group of which it is a member is not an eligible trading group, or
ii
none of its 51% subsidiaries in the eligible trading group of which it is a member is an eligible trading company that is trading.
7
In subsection (6), “trading” means carrying on one or more commercial trades (including the carrying on of any activities treated under section 809VE(4) as the carrying on of a commercial trade).
8
If consideration for a disposal of all or part of the holding is or is to be paid in instalments, the disposal is to be treated for the purposes of this section as if it were separate disposals, one for each instalment (and each giving rise to a separate potentially chargeable event).
9
An event listed in subsection (1) does not count as a potentially chargeable event if it is due to an insolvency step taken for genuine commercial reasons (but this does not prevent the extraction of any value in connection with the insolvency step from counting as a potentially chargeable event).
10
For the purposes of subsection (9), an insolvency step is taken if —
a
the target company enters into administration or receivership or is wound up or dissolved,
b
the target company is an eligible stakeholder company and any eligible trading company in which it holds an investment enters into administration or receivership or is wound up or dissolved,
c
the target company is an eligible holding company and any eligible trading company in the group that is a 51% subsidiary of it enters into administration or receivership or is wound up or dissolved, or
d
a similar step is taken in relation to a company mentioned in paragraph (a), (b) or (c) under the law of a country or territory outside the United Kingdom.
The appropriate mitigation steps
809VI
1
If the potentially chargeable event is a disposal of all or part of the holding, the appropriate mitigation steps are regarded as taken if the whole of the disposal proceeds have been taken offshore or re-invested.
2
For any other case, the appropriate mitigation steps are regarded as taken if —
a
P has disposed of the entire holding (or so much of it as P retains when the potentially chargeable event occurs), and
b
the whole of the disposal proceeds have been taken offshore or re-invested.
3
But if the disposal proceeds exceed X, subsections (1) and (2)(b) apply only to so much of the proceeds as is equal to X.
4
“X” is —
a
the sum originally invested, less
b
so much of that sum as has, on previous occasions involving the same investment —
i
been taken into account in determining the affected income or gains under section 809VG(2),
ii
been taken offshore or re-invested in order to avoid the application of that section, or
iii
been used to make a tax deposit without which the amount actually taken offshore or re-invested would not have been enough to satisfy subsection (1) or (2)(b) (see section 809VK).
5
“The sum originally invested” means the amount of the money, or the market value of the other property, used to make the investment.
6
Market value is to be assessed for these purposes as at the date of the relevant event (see section 809VA).
7
Proceeds are “re-invested” if a relevant person uses them to make another qualifying investment (or the proceeds are themselves a qualifying investment) whether in the same or a different company.
8
In cases where a breach of the extraction of value rule occurs in connection with the winding-up or dissolution of the target company —
a
subsection (2)(a) does not apply,
b
the reference in subsection (2)(b) to the disposal proceeds is to the value received, and
c
references in this section and in succeeding provisions of the business investment provisions to the disposal proceeds are to be read as references to the value received.
The grace period allowed for the appropriate mitigation steps
809VJ
1
The grace period allowed for the step mentioned in section 809VI(2)(a) is the period of 90 days beginning —
a
if the potentially chargeable event is a breach of the extraction of value rule, with the day on which the value is received, and
b
otherwise, with the day on which a relevant person first became aware or ought reasonably to have become aware of the potentially chargeable event.
2
The grace period allowed for the step mentioned in section 809VI(1) and (2)(b) is the period of 45 days beginning with the day on which the disposal proceeds first became available for use by or for the benefit of P or any other relevant person.
3
An officer of Revenue and Customs may agree in a particular case to extend the grace period allowed for an appropriate mitigation step in exceptional circumstances.
4
An officer of Revenue and Customs may agree in a particular case to extend the grace period allowed for an appropriate mitigation step in circumstances specified in regulations made by the Commissioners.
5
Regulations under subsection (4) may have effect in relation to investments made before the day on which the regulations are made.
6
Nothing in subsection (4) or in regulations made under it limits the power conferred by subsection (3).
7
The powers conferred on officers of Revenue and Customs by subsections (3) and (4) include power to agree to extend a grace period for a length of time that is indefinite but is capable of becoming definite by means identified in the agreement (such as the satisfaction of conditions).
Retention of funds to meet CGT liabilities
809VK
1
This section applies if —
a
there is a disposal of all or part of the holding,
b
the disposal counts as a potentially chargeable event or is part of the appropriate mitigation steps taken in consequence of a potentially chargeable event,
c
a chargeable gain (but not a loss) accrues to P on the disposal,
d
P is chargeable to capital gains tax (but not corporation tax) in respect of that gain, and
e
the actual disposal proceeds are less than Y.
2
The difference between the actual disposal proceeds and Y is referred to in this section as “the shortfall”.
3
“The actual disposal proceeds” means the disposal proceeds but disregarding section 809Z8(4).
4
“Y” is the sum of —
a
the amount (if any) that would, but for this section, be required to be taken offshore or re-invested in order to satisfy section 809VI(1) or (2)(b), and
b
the amount found by applying the highest potential CGT rate to the amount (computed in accordance with TCGA 1992) of the chargeable gain accruing to P on the disposal.
5
The highest potential CGT rate is —
a
if the chargeable gain accrues to P as the trustees of a settlement or accrues to the personal representatives of P, the rate specified in section 4(3) of TCGA 1992, and
b
otherwise, the rate specified in section 4(4) of that Act (regardless of the rate at which income tax is chargeable in respect of P’s income).
6
If this section applies, the amount that is required to be taken offshore or re-invested in order to satisfy section 809VI(1) or (2)(b) is reduced by the permitted amount.
7
“The permitted amount” is so much of the shortfall as is used, within the grace period allowed for taking the disposal proceeds offshore or re-investing them, to make a deposit in respect of which a certificate of tax deposit is issued to P under section 12 of the National Loans Act 1968.
8
A reduction may not be made under subsection (6) unless —
a
when details of the deposit are confirmed to Her Majesty’s Revenue and Customs, the confirmation letter states that this section is intended to apply to the deposit, and
b
the amount of the deposit is no greater than the shortfall.
Effect of taking appropriate mitigation steps within grace period
809VL
1
This section explains the effect for the purposes of this Chapter in cases where section 809VG(2) does not apply because the appropriate mitigation steps were taken within the grace period allowed for each step.
2
If disposal proceeds were taken offshore as part of those steps, nothing in section 809VA(2) prevents anything subsequently done in relation to those proceeds (or anything deriving from them) from counting as a remittance of the underlying income or gains to the United Kingdom at the time when the thing is subsequently done.
3
If disposal proceeds were re-invested as part of those steps —
a
the underlying income or gains continue to be treated under section 809VA(2) as not remitted to the United Kingdom, and
b
the business investment provisions apply to the re-investment as they apply to the original investment.
4
In the application of the business investment provisions to the re-investment —
a
treat the potentially chargeable event mentioned in section 809VG(1)(b) as the relevant event,
b
treat the underlying income or gains as the income or gains treated under section 809VA(2) as not remitted to the United Kingdom as a result of the re-investment, and
c
treat the amount used to make the re-investment as the sum originally invested.
5
If the re-investment is made using more than the minimum amount of disposal proceeds required to satisfy section 809VI(1) or (2)(b) —
a
that investment is to be treated as two separate investments, one made using the minimum amount of disposal proceeds and one made using the excess, and
b
references in the business investment provisions to “the investment” and “the holding” relate only to the investment made using the minimum amount of disposal proceeds.
6
“The underlying income or gains” means the affected income or gains (within the meaning of section 809VG) or, if one part of the disposal proceeds is taken offshore and the other part re-invested, a corresponding proportion of the affected income or gains.
7
A further claim must be made in accordance with section 809VA in respect of the re-investment and, if no such claim is made on or before the first anniversary of the 31 January following the tax year in which the re-investment was made, section 809VG(2) applies, as respects the original investment, as if the appropriate mitigation steps had not been taken within the grace period allowed for each step.
8
Section 809VM makes further provision in cases involving a tax deposit.
Cases involving tax deposits
809VM
1
This section applies in cases where —
a
section 809VG(2) did not apply because the appropriate mitigation steps were taken within the grace period allowed for each step,
b
the amount required to be taken offshore or re-invested in order to satisfy section 809VI(1) or (2)(b) had been reduced under section 809VK, and
c
but for that reduction, the amount that was actually taken offshore or re-invested would not have been enough to satisfy section 809VI(1) or (2)(b).
2
The tax deposit that gave rise to the reduction is referred to in this section as “the tax deposit”.
3
Use of the tax deposit to pay the relevant tax liability does not count as remitting the underlying income or gains to the United Kingdom (and, accordingly, section 809VA(2) continues to apply to the income or gains).
4
If any of the CTD conditions is breached, the underlying income or gains are to be treated as having been remitted to the United Kingdom immediately after the day on which the breach occurs.
5
“The underlying income or gains” means such portion of the affected income or gains (within the meaning of section 809VG) as is —
a
represented by the payment, in the case of subsection (3), or
b
affected by the breach, in the case of subsection (4).
6
The CTD conditions are as follows —
a
the tax deposit must not be used to pay a tax liability other than the relevant tax liability,
b
if any of the tax deposit is withdrawn by the depositor, the amount withdrawn must be taken offshore or re-invested within the period of 45 days beginning with the day on which the withdrawal was made, and
c
any part of the tax deposit that has been neither used to pay a tax liability nor withdrawn by the due date must be withdrawn by the depositor and taken offshore or re-invested within the period of 45 days beginning with that date.
7
Where the CTD conditions were not breached because the requisite amount was taken offshore or re-invested within the 45-day period mentioned in subsection (6)(b) or (c) —
a
section 809VL applies to the amount taken offshore or re-invested as it applies to disposal proceeds, but
b
read the reference in section 809VL(4)(a) to the potentially chargeable event as a reference to —
i
the withdrawal, in a case within subsection (6)(b), and
ii
the due date, in a case within subsection (6)(c).
8
For the purposes of this section —
a
“the relevant tax liability” means P’s liability to capital gains tax for the tax year in which the disposal took place,
b
“the due date” means the date by which the relevant tax liability is required to be paid,
c
“re-invested” has the meaning given in section 809VI(7), and
d
references to withdrawal include repayment for whatever reason.
Order of disposals etc
809VN
1
Subsection (2) applies if at any time income or chargeable gains of an individual are treated under section 809VA as not remitted to the United Kingdom as a result of —
a
more than one qualifying investment made in the same target company,
b
more than one qualifying investment made in companies in the same eligible trading group, or
c
qualifying investments made in an eligible trading company and in an eligible stakeholder company that holds investments in that trading company.
2
In the application of section 809VG at that time —
a
treat the investments and holdings as if they were a single qualifying investment and a single holding, and
b
assume that a disposal of all or part of that deemed single holding affects the deemed single investment in the order in which the qualifying investments were made (that is to say, on a first in, first out basis).
3
Subsection (4) applies if at any time —
a
income or chargeable gains of an individual are treated under section 809VA as not remitted to the United Kingdom as a result of one or more qualifying investments,
b
in addition to that investment or those investments, a relevant person holds at least one other investment in the same target company, the same eligible trading group or a related eligible company, and
c
that other investment is not a qualifying investment.
4
In the application of section 809VG at that time —
a
treat the investments and holdings as if they were a single investment and a single holding, and
b
assume that a disposal of all or part of that deemed single holding is a disposal of a holding from a qualifying investment until the holdings from all the qualifying investments have been disposed of.
5
The reference to a “related eligible company” —
a
in relation to an eligible trading company, is to an eligible stakeholder company that holds investments in that company, and
b
in relation to an eligible stakeholder company, is to an eligible trading company in which that company holds investments.
6
Subsections (2) and (4) apply whether the investments in question are held by the same relevant person or different ones.
Investments made from mixed funds
809VO
1
This section applies if —
a
but for section 809VA(2), income or gains would have been remitted to the United Kingdom by virtue of a relevant event, and
b
section 809Q (transfers from mixed funds) would have applied in determining the amount that would have been so remitted.
2
The relevant event counts as an offshore transfer for the purposes of section 809R(4).
3
The holding is to be treated as containing a proportion of each kind of income and capital contained in the invested property equal to the fixed proportion.
4
“The fixed proportion” is the proportion of that kind of income or capital contained in the invested property by virtue of subsection (2).
5
“The invested property” means the money or other property used to make the investment.
6
Subsection (7) applies in cases where —
a
section 809VG(2) does not apply because an amount is taken offshore, re-invested or used to make a tax deposit, or
b
section 809VM(4) does not apply because an amount is taken offshore or re-invested.
7
The amount taken offshore, re-invested or used to make a tax deposit is treated, immediately after that step, as containing the fixed proportion of each kind of income and capital contained in the holding.
8
In cases where section 809VG(2) applies —
a
the affected income or gains are so much of the fixed amount of each kind of income or gain mentioned in subsection (1)(a) as reflects the portion of the investment affected by the potentially chargeable event (see section 809VG(6)),
b
“the fixed amount” is the amount of that kind of income or gain that the holding is treated as containing by virtue of subsection (3), and
c
section 809Q does not apply in determining the affected income or gains.
9
Section 809R(2) and (3) and section 809S apply for the purposes of this section.
8
After the sections inserted by paragraph 7 insert the heading “ Relief for certain UK services ”.
9
Immediately before section 809X insert the heading “ Exempt property relief” .
Formerly exempt property used to make investment
10
In section 809Y (property that ceases to be exempt property treated as remitted), after subsection (5) insert —
6
Subsection (1) does not apply to property that ceases to be exempt property if —
a
the property, or anything into which it is converted, is used by a relevant person to make a qualifying investment within the period of 45 days beginning with the day on which it ceased to be exempt property, and
b
the remittance basis user makes a claim for relief under this subsection on or before the first anniversary of the 31 January following the tax year in which the property ceases to be exempt property.
7
The reference in subsection (6)(a) to anything into which property is converted is —
a
if the property is disposed of, the disposal proceeds, and
b
if the property is converted into money in some other way, the money into which it is converted,
(including where the disposal or conversion occurs after the property ceases to be exempt property).
8
If subsection (1) does not apply by virtue of subsection (6) —
a
the property (or thing into which it was converted) used to make the investment is to be treated as containing or deriving from an amount of each kind of income and gain mentioned in section 809Q(4)(a) to (h) equal to the fixed amount,
b
the income or gains treated under section 809X as not remitted to the United Kingdom continue to be treated as not remitted to the United Kingdom even though the property has ceased to be exempt property, and
c
the business investment provisions apply to the income and gains as they apply to income or gains treated under section 809VA(2) as not remitted to the United Kingdom.
9
“The fixed amount” is the amount of that kind of income or gain contained in the property when it was brought to, or received or used in, the United Kingdom (as mentioned in section 809X).
10
If the investment is made using more than just the property (or thing into which it was converted), treat only the part made using the property (or thing into which it was converted) as “the investment” for the purposes of the business investment provisions.
11
In section 809Z2 (personal use rule), in subsection (2), omit paragraph (a) (including the word “and” at the end of it).
12
In section 809Z4 (temporary importation rule), in subsection (3) —
a
omit “or” at the end of paragraph (b),
b
insert “or” at the end of paragraph (c), and
c
after that paragraph insert —
d
all or any part of the income or chargeable gains contained in the property (or from which the property derives) is treated, or continues to be treated, under section 809VA(2), 809Y(8)(b) or 809YC(2) as not remitted to the United Kingdom.
Interpretation provisions
13
In section 809M (meaning of “relevant person”), in subsection (1), for “sections 809L, 809N and 809O” substitute “this Chapter”.
14
In section 809Z7 (interpretation of Chapter), omit subsection (7).
15
For the heading of that section substitute “ Meaning of “foreign income and gains” etc ”.
16
After that section insert —
Meaning of “the disposal proceeds”
809Z8
1
In this Chapter, in relation to a sale or other disposal, “the disposal proceeds” means —
a
the consideration for the disposal, less
b
any agency fees that are deducted before the consideration is paid or otherwise made available to or for the benefit of the person making the disposal (“the transferor”) or any other relevant person.
2
The following rules apply in determining the consideration for the disposal.
3
If the consideration is provided in the form of anything other than money, the amount of the consideration is the market value of the thing at the time of the disposal.
4
If the disposal is made other than by way of a bargain made at arm’s length, the disposal is deemed to be made for a consideration equal to the market value, immediately before the disposal, of the thing being disposed of.
5
Without limiting the generality of subsection (4), a disposal made to another relevant person or to a person connected with a relevant person is treated in all cases as made other than by way of a bargain at arm’s length.
6
In subsection (1), “agency fees” means fees and other incidental costs of the disposal that are charged to the transferor by any person by or through whom the disposal is effected, but excluding any such fees or costs that —
a
are charged to the transferor by another relevant person, or
b
are to be passed on to or otherwise applied for the benefit of a relevant person.
7
The exclusion mentioned in subsection (6) does not apply to the extent that the fees or costs —
a
relate to a service actually provided by the relevant person to the transferor in connection with effecting the disposal, and
b
do not exceed the amount that would be charged for that service if it were provided in the ordinary course of business and on arm’s length terms.
Taking proceeds etc offshore or investing them
809Z9
1
This section applies to a provision of this Chapter that is satisfied if something (for example, disposal proceeds) is taken offshore or used by a relevant person to make a qualifying investment.
2
Things are to be regarded as “taken offshore” if (and only if) they are taken outside the United Kingdom such that, on leaving the United Kingdom, they cease to be available —
a
to be used or enjoyed in the United Kingdom by or for the benefit of a relevant person, or
b
to be used or enjoyed in any other way that would count as remitting income or gains to the United Kingdom.
3
If —
a
the thing required to be taken offshore or invested is money, and
b
it is paid temporarily into an account pending satisfaction of the provision,
the provision is satisfied only if the money actually taken offshore or invested is taken from the same account.
4
If the thing required to be taken offshore or invested is something in money’s worth, the provision may be satisfied —
a
by taking the thing offshore or investing it, or
b
by taking offshore or investing money or other property of the equivalent value.
5
“The equivalent value” is the market value of the thing in money’s worth, assessed as at the date of the sale or other disposal in relation to which the provision is triggered.
6
If the consideration for a disposal is deemed under section 809Z8(4), the provision may be satisfied by taking offshore or investing money or other property of a value equal to —
a
the amount of the deemed consideration, less
b
any agency fees (within the meaning of section 809Z8) that are deducted before the actual consideration is paid or otherwise made available to or for the benefit of a relevant person.
7
Subsections (4)(b) and (6) do not apply in the case of other property of the equivalent value if the other property is —
a
exempt property under section 809X,
b
consideration for the disposal of any such exempt property, or
c
consideration for the disposal of all or part of the holding (see section 809VC) relating to a qualifying investment.
8
Money or other property taken offshore or invested in accordance with subsection (4)(b) or (6) is to be treated for the purposes of this Chapter —
a
as deriving from the thing required to be taken offshore or invested, and
b
as having the same composition of kinds of income and capital as that thing.
9
A provision to which this section applies may be satisfied —
a
by taking the whole thing offshore or investing the whole thing, or
b
by taking one part offshore and investing the other part.
10
References in this section to something being “invested” are to something being used by a relevant person to make a qualifying investment.
11
The provisions to which this section applies include section 809VB(2) but in that case —
a
disregard references in this section to investment, and
b
the assessment date for the purposes of subsection (5) is the date of the relevant event (see section 809VA(3)(b)).
General interpretation
809Z10
In this Chapter —
“the business investment provisions” means sections 809VA to 809VO;
“the Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs;
“market value” has the same meaning as in TCGA 1992 (see in particular sections 272 and 273 of that Act);
“qualifying investment” has the meaning given by section 809VC (and references to making a qualifying investment are to be read in accordance with that section);
“relevant person” has the meaning given by section 809M;
“the remittance basis user”, in relation to income or chargeable gains of an individual, means that individual.
Application of Part 2
17
The amendments made by this Part of this Schedule have effect where the relevant event (as defined in section 809VA of ITA 2007) or the ceasing to be exempt property (as defined in section 809Y of that Act) occurs on or after 6 April 2012.
PART 3
Sales of exempt property
Relief from deemed remittance rule
18
After section 809Y of ITA 2007 (property that ceases to be exempt property treated as remitted) insert —
Exception to section 809Y: proceeds taken offshore or invested
809YA
1
Section 809Y(1) does not apply to property if —
a
it ceases to be exempt property because the whole of it is sold whilst it is in the United Kingdom, and
b
conditions A to F are met.
2
Condition A is that the sale is to a person other than a relevant person.
3
Condition B is that the sale is by way of a bargain made at arm’s length.
4
Condition C is that, once the sale is completed, no relevant person —
a
has any interest in the property,
b
is able or entitled to benefit from the property by virtue of any interest, right or arrangement, or
c
has any right (whether conditional or unconditional) to acquire any interest mentioned in paragraph (a) or ability or entitlement mentioned in paragraph (b).
5
Condition D is that the whole of the disposal proceeds are released (whether in one go or in instalments) on or before the final deadline.
6
“The final deadline” is the first anniversary of the 5 January following the tax year in which the property ceases to be exempt property (within the meaning of section 809Y).
7
Condition E is that —
a
the whole of the disposal proceeds are taken offshore or used by a relevant person to make a qualifying investment within the period of 45 days beginning with the day on which the proceeds are released, or
b
if the disposal proceeds are paid in instalments, each instalment is taken offshore or used by a relevant person to make a qualifying investment within the period of 45 days beginning with the day on which the instalment is released.
8
But if any of the disposal proceeds are released in the period of 45 days ending with the final deadline, Condition E is satisfied, as respects those proceeds, only if they are taken offshore or used by a relevant person to make a qualifying investment on or before the final deadline.
9
Condition F is that, if Condition E is satisfied wholly or in part by using disposal proceeds to make a qualifying investment, the remittance basis user makes a claim for relief under section 809YC(2) on or before the first anniversary of the 31 January following the tax year in which the property is sold.
10
For the purposes of this section, proceeds or instalments are “released” on the day on which they first become available for use by or for the benefit of any relevant person.
11
This section does not apply if the sale is made as part of or as a result of a scheme or arrangement the main purpose or one of the main purposes of which is the avoidance of tax.
Condition E: supplementary
809YB
1
An officer of Revenue and Customs may agree in a particular case to extend any period within which disposal proceeds (or instalments) must be taken offshore or used by a relevant person to make a qualifying investment in order to satisfy Condition E.
2
The power to agree to an extension is exercisable only in exceptional circumstances and only if the remittance basis user requests such an extension.
Effect of disapplying section 809Y
809YC
1
This section has effect if section 809Y(1) does not apply to property by virtue of section 809YA.
2
The income and gains treated under section 809X as not remitted to the United Kingdom continue to be treated after the sale as not remitted to the United Kingdom even though the property has ceased to be exempt property.
3
But nothing in subsection (2) prevents anything done in relation to any part of the disposal proceeds after that part is taken offshore (or used to make a qualifying investment) from counting as a remittance of the underlying income or gains to the United Kingdom at the time when the thing is done.
4
Treat the disposal proceeds as containing or deriving from an amount of each kind of income and gain mentioned in section 809Q(4)(a) to (h) equal to the amount of that kind of income or gain contained in the exempt property when it was brought to, or received or used in, the United Kingdom (as mentioned in section 809X).
5
Where Condition E was met by using the disposal proceeds to make a qualifying investment —
a
the business investment provisions apply to the income and gains that continue, by virtue of subsection (2), to be treated as not remitted as they apply to income or gains that are treated under section 809VA(2) as not remitted, and
b
if the investment was made using more than just the disposal proceeds, treat only the part of the investment made using the disposal proceeds as “the investment” for the purposes of those provisions.
Chargeable gains accruing on sales of exempt property
809YD
1
This section applies to an individual (“P”) if —
a
a chargeable gain (but not a loss) accrues to a person on a sale of exempt property,
b
but for section 809YA, section 809Y(1) would have applied to the property by virtue of the sale, and
c
P is either —
i
the person to whom the gain accrues, or
ii
a person to whom a part of the gain is treated as accruing under section 13 of TCGA 1992 (members of non-resident companies).
2
The relevant UK gain is to be treated for the purposes of this Chapter as if —
a
it were a foreign chargeable gain of P, and
b
in the case of section 809E, it were not part of P’s UK income and gains.
3
Accordingly, if section 809F applies to P for the applicable tax year and P is not domiciled in the United Kingdom in that year, the relevant UK gain is charged in accordance with section 12 of TCGA 1992 as if it were a foreign chargeable gain.
4
The relevant UK gain is —
a
in a case falling within subsection (1)(c)(i), the gain accruing to P,
b
in a case falling within subsection (1)(c)(ii), the part of the gain treated as accruing to P.
5
The applicable tax year is —
a
if section 10A of TCGA 1992 (temporary non-residents) applies in P’s case and the relevant UK gain is within subsection (2) of that section, the year of return as defined in that section,
b
otherwise, the tax year in which the relevant UK gain accrues.
6
In applying this Chapter to the relevant UK gain —
a
treat the amount of any gains mentioned in section 809Q(4)(e) contained in the disposal proceeds by virtue of section 809YC(4) as increased by the amount of the relevant UK gain,
b
disregard section 809U, and
c
anything done in relation to any part of the disposal proceeds before the part is taken offshore or used to make a qualifying investment (or both) does not count as a remittance to the United Kingdom of any of the relevant UK gain.
7
The relevant UK gain is to be treated for the purposes of the following provisions of TCGA 1992 as if it fell within the definition of foreign chargeable gains in section 12(4) of that Act —
a
section 10A,
b
section 12,
c
section 14A, and
d
sections 16ZB to 16ZD.
8
This section has effect despite section 14A(2) of TCGA 1992.
9
This section does not apply with respect to a chargeable gain if P gives notice to Her Majesty’s Revenue and Customs under this subsection.
10
A notice under subsection (9) —
a
must be in writing and must identify the gain in question,
b
must be given on or before the first anniversary of the 31 January following the applicable tax year, and
c
may not be revoked after that first anniversary.
Application of Part 3
19
The amendment made by this Part of this Schedule has effect in relation to exempt property that is sold on or after 6 April 2012 (including property sold pursuant to a contract entered into before that date so long as the contract only becomes unconditional on or after that date).
PART 4
Nominated income
Disapplication of ordering rules
20
1
Section 809I of ITA 2007 (remittance basis charge: income and gains treated as remitted) is amended as follows.
2
In subsection (1) —
a
omit “and” at the end of paragraph (a), and
b
at the end of paragraph (b) insert
, and
c
the £10 test is met for that year.
3
In subsection (3), after “earlier tax year” insert “(each such year for which the individual has made a nomination under that section being referred to as a “nomination year”)”.
4
After subsection (4) insert —
5
The £10 test is met for the tax year mentioned in subsection (1)(a) (“year X”) if, taking each nomination year separately, the cumulative total as respects at least one nomination year exceeds £10.
6
In relation to a nomination year —
a
“the cumulative total” means the sum, for all the tax years in aggregate up to and including year X, of the amounts of relevant income and gains remitted to the United Kingdom in those tax years from that nomination year, and
b
“relevant income and gains” means the income and chargeable gains nominated by the individual under section 809C for that nomination year.
Application of Part 4
21
The amendments made by this Part of this Schedule have effect for determining whether section 809I of ITA 2007 applies for the tax year 2012-13 or any subsequent tax year.
SCHEDULE 13
Employer asset-backed pension contributions etc
Section 48
PART 1
Denial of relief for contributions paid during period 29 November 2011 to 21 February 2012
1
In Chapter 4 of Part 4 of FA 2004 (registered pension schemes: tax reliefs and exemptions) after section 196A insert —
Employer asset-backed contributions: denial of relief (1)
196B
1
An employer (“E”) is not to be given relief in respect of a contribution (“E’s contribution”) paid by E under a registered pension scheme if conditions A, B and C are met.
2
Condition A is that —
a
under an arrangement (“the asset-backed arrangement”) —
i
a person (“the borrower”) receives money or another asset (“the advance”) from another person (“the lender”),
ii
the borrower, or a person connected with the borrower, makes a disposal of an asset (“the security”) to or for the benefit of the lender or a person connected with the lender, and
iii
the lender, or a person connected with the lender, is entitled to payments in respect of the security,
b
the borrower is E or a person connected with E, and
c
the advance is (wholly or partly) paid or provided by the lender out of E’s contribution (directly or indirectly),
and the case is not one in relation to which either condition A in section 196C or condition A in section 196D is met.
3
For the purposes of subsection (2)(a)(iii) it does not matter if an entitlement of the lender, or a person connected with the lender, is subject to any condition.
4
Condition B is that the asset-backed arrangement is not a structured finance arrangement.
5
Condition C is that it is reasonable to suppose that the amount of one or more of the payments mentioned in subsection (2)(a)(iii) has been, or is to be, determined (wholly or partly) on the basis that, in essence, the whole or a part of the advance represents a loan which is (wholly or partly) to be repaid by way of one or more of those payments.
6
For the purposes of subsection (5) it does not matter —
a
that the repayment of the loan might be subject to any condition, or
b
that the accounts of any person do not record a financial liability in respect of the whole or a part of the advance or that the whole or a part of the advance is not otherwise treated as representing a loan for the purposes of the accounts of any person,
but, subject to that, all relevant circumstances are to be taken into account in order to get to the essence of the matter.
7
For the purposes of this section —
a
the borrower and the lender are not connected with one another if that would otherwise be the case,
b
if the borrower is not E, references to a person connected with the borrower include a person connected with E who would not otherwise be connected with the borrower, and
c
“loan” includes any advance of money.
Employer asset-backed contributions: denial of relief (2)
196C
1
An employer (“E”) is not to be given relief in respect of a contribution (“E’s contribution”) paid by E under a registered pension scheme if conditions A and B are met.
2
Condition A is that —
a
under an arrangement (“the asset-backed arrangement”) a person (“the transferor”) makes a disposal of an asset (“the security”) to a partnership,
b
the transferor is E or a person connected with E,
c
the transferor, or a person connected with the transferor, is a member of the partnership immediately after the disposal (whether or not a member immediately before it),
d
under the asset-backed arrangement the partnership receives money or another asset (“the advance”) from a person (“the lender”) other than the transferor,
e
the advance is (wholly or partly) paid or provided by the lender out of E’s contribution (directly or indirectly),
f
there is a relevant change in relation to the partnership (see section 196E ), and
g
under the asset-backed arrangement the share in the partnership’s profits of the person involved in the relevant change (see section 196E ) is determined by reference (wholly or partly) to payments in respect of the security.
3
If the transferor is not E, for the purposes of this section references to a person connected with the transferor include a person connected with E who would not otherwise be connected with the transferor.
4
For the purposes of subsection (2)(g) it does not matter if any determination of the share in the partnership’s profits of the person involved in the relevant change as mentioned is subject to any condition.
5
Condition B is that the asset-backed arrangement is not a structured finance arrangement.
Employer asset-backed contributions: denial of relief (3)
196D
1
An employer (“E”) is not to be given relief in respect of a contribution (“E’s contribution”) paid by E under a registered pension scheme if conditions A and B are met.
2
Condition A is that —
a
a partnership holds an asset (“the security”) at any time before an arrangement (“the asset-backed arrangement”) is made,
b
under the asset-backed arrangement the partnership receives money or another asset (“the advance”) from another person (“the lender”),
c
the advance is (wholly or partly) paid or provided by the lender out of E’s contribution (directly or indirectly),
d
there is a relevant change in relation to the partnership (see section 196E ), and
e
under the asset-backed arrangement the share in the partnership’s profits of the person involved in the relevant change (see section 196E ) is determined by reference (wholly or partly) to payments in respect of the security.
3
For the purposes of subsection (2)(e) it does not matter if any determination of the share in the partnership’s profits of the person involved in the relevant change as mentioned is subject to any condition.
4
Condition B is that the asset-backed arrangement is not a structured finance arrangement.
What is a “relevant change in relation to the partnership” etc?
196E
1
For the purposes of sections 196C and 196D there is a relevant change in relation to the partnership if condition X or Y is met.
2
Condition X is that, in connection with the asset-backed arrangement, the lender or a person connected with the lender becomes a member of the partnership at any time.
3
Condition Y is that —
a
in connection with the asset-backed arrangement, there is at any time a change in a member’s share in the partnership’s profits, and
b
the member is the lender or a person connected with the lender or a person who in connection with the asset-backed arrangement becomes at any time connected with the lender.
4
For the purposes of subsections (2) and (3) an event occurs in connection with the asset-backed arrangement if it occurs directly or indirectly in consequence of it or otherwise in connection with it.
5
For the purposes of sections 196C and 196D references to the person involved in the relevant change are —
a
if it is condition X that is met, to the lender or the person connected with the lender (as the case may be), and
b
if it is condition Y that is met, to the member of the partnership in whose share in the partnership’s profits there is a change.
Employer asset-backed contributions: anti-avoidance
196F
1
This section applies if —
a
an employer (“E”) pays a contribution (“E’s contribution”) under a registered pension scheme,
b
conditions A and C in section 196B are met or condition A in section 196C or 196D is met,
c
the asset-backed arrangement is a structured finance arrangement and, accordingly, condition B in section 196B , 196C or 196D (as the case may be) is not met,
d
at any time (“the relevant time”) E, or a person connected with E, enters into an arrangement (“the avoidance arrangement”), and
e
the main purpose, or one of the main purposes, of E or the person connected with E in entering into the avoidance arrangement is to secure that the total amount of the relevant payments will be less than the amount of E’s contribution.
2
If the relevant time is the same as the time at which the advance is received or earlier, section 196B , 196C or 196D (as the case may be) applies in relation to E’s contribution as if condition B in that section were met.
3
Otherwise, the amount of the relevant financial liability as at the relevant time is treated as follows as relevant —
a
for corporation tax purposes, the amount is treated as if it were a profit which E has in respect of E’s loan relationships chargeable to corporation tax under section 299 of CTA 2009 for E’s accounting period in which the relevant time falls, or
b
for income tax purposes, the amount is treated as if it were an amount of income of E chargeable to income tax under Chapter 8 of Part 5 of ITTOIA 2005 for the tax year in which the relevant time falls.
4
The amount treated as profit or income by subsection (3)(a) or (b) is not to exceed the total amount of relief given in respect of E’s contribution.
5
For the purposes of this section —
a
“the advance” and “the asset-backed arrangement” have the same meaning as in section 196B , 196C or 196D (as the case may be),
b
“the relevant financial liability” means the financial liability mentioned in section 809BZA(3), 809BZF(3) or 809BZJ(3) of ITA 2007 or section 758(3), 763(3) or 767(3) of CTA 2010 (as the case may be) in respect of the advance,
c
“the relevant payments” means the payments which reduce that liability as so mentioned, and
d
the amount of the relevant financial liability as at the relevant time is to be determined in accordance with generally accepted accounting practice.
Employer asset-backed contributions: reduction of financial liability under structured finance arrangement
196G
1
This section applies if —
a
an employer (“E”) pays a contribution (“E’s contribution”) under a registered pension scheme,
b
conditions A and C in section 196B are met or condition A in section 196C or 196D is met,
c
the asset-backed arrangement is a structured finance arrangement and, accordingly, condition B in section 196B , 196C or 196D (as the case may be) is not met, and
d
there occurs an event (“the relevant event”) —
i
which is not the making of a relevant payment, but
ii
by virtue of which, in accordance with generally accepted accounting practice, the amount of the relevant financial liability is reduced to nil or in part.
2
If the relevant financial liability is reduced to nil, Chapter 5B of Part 13 of ITA 2007 or Chapter 2 of Part 16 of CTA 2010 (as the case may be) is no longer to apply in relation to the asset-backed arrangement from when the relevant event occurs.
3
But no person is, by virtue of subsection (2) , to be placed in a position which is more advantageous than the position in which the person would have been had this section never applied; and, in order to give effect to this principle, such assessments to tax or adjustments to any assessment to tax as are just and reasonable are to be made.
4
In any case, the amount of the reduction of the relevant financial liability mentioned in subsection (1)(d) is treated as follows as relevant —
a
for corporation tax purposes, the amount is treated as if it were a profit which E has in respect of E’s loan relationships chargeable to corporation tax under section 299 of CTA 2009 for E’s accounting period in which the relevant event occurs, or
b
for income tax purposes, the amount is treated as if it were an amount of income of E chargeable to income tax under Chapter 8 of Part 5 of ITTOIA 2005 for the tax year in which the relevant event occurs.
5
The amount treated as profit or income by subsection (4)(a) or (b) is not to exceed the total amount of relief given in respect of E’s contribution.
6
For the purposes of this section —
a
“the advance” and “the asset-backed arrangement” have the same meaning as in section 196B , 196C or 196D (as the case may be),
b
“the relevant financial liability” means the financial liability mentioned in section 809BZA(3), 809BZF(3) or 809BZJ(3) of ITA 2007 or section 758(3), 763(3) or 767(3) of CTA 2010 (as the case may be) in respect of the advance,
c
“relevant payment” means a payment which reduces that liability as so mentioned, and
d
the amount of the relevant financial liability before its reduction by virtue of the relevant event and the amount of the reduction are to be determined in accordance with generally accepted accounting practice.
Employer asset-backed contributions: extension of section 196G
196H
1
This section applies if —
a
an employer (“E”) pays a contribution (“E’s contribution”) under a registered pension scheme,
b
conditions A and C in section 196B are met or condition A in section 196C or 196D is met,
c
the asset-backed arrangement is a structured finance arrangement and, accordingly, condition B in section 196B , 196C or 196D (as the case may be) is not met, and
d
after the beginning of 21 March 2012, an event (“the relevant event”) listed in subsection (4) occurs.
2
Section 196G applies as if the relevant event were an event (other than the making of a relevant payment) by virtue of which, in accordance with generally accepted accounting practice, the amount of the relevant financial liability is reduced to nil.
3
For this purpose, in section 196G (4) references to E’s accounting period, or the tax year, in which the relevant event occurs are to be read as references to E’s accounting period, or the tax year, in which falls the time immediately before the occurrence of the relevant event.
4
The events are —
a
if E is a company within the charge to corporation tax when E’s contribution is paid, E ceases to be within that charge;
b
if E is a limited liability partnership in relation to which section 863(1) of ITTOIA 2005 or section 1273(1) of CTA 2009 applies when E’s contribution is paid, that provision ceases to apply in relation to E;
c
if E is a firm for the purposes of ITTOIA 2005 (see section 847) or CTA 2009 (see section 1257) (other than a limited liability partnership) when E’s contribution is paid, the partnership ceases to carry on the trade, profession or business in question;
d
in any case —
i
if E is a company, E enters administration or the winding up of E starts;
ii
if E is a partnership, the partnership is dissolved;
iii
if E is an individual, E dies.
5
Sections 10(3) and 12(7) of CTA 2009 apply for the purposes of subsection (4)(d)(i) .
Employer asset-backed contributions: “advances” under structured finance arrangements
196I
1
This section applies if —
a
an employer pays a contribution under a registered pension scheme,
b
condition A in section 196B , 196C or 196D is met,
c
the asset-backed arrangement is a structured finance arrangement and, accordingly, condition B in section 196B , 196C or 196D (as the case may be) is not met, and
d
the advance gives rise to a loan within the meaning of Chapter 3 (see section 162).
2
Section 180(4) does not prevent the advance from being a scheme administration employer payment (if it would otherwise do so).
3
For the purposes of this section “the advance” and “the asset-backed arrangement” have the same meaning as in section 196B , 196C or 196D (as the case may be).
Employer asset-backed contributions: supplementary
196J
1
This section applies for the purposes of sections 196B to 196I .
2
References to relief being given in respect of a contribution paid by an employer under a registered pension scheme are references to relief being given by way of —
a
the contribution being deducted in computing the amount of the employer’s profits for the purposes of Part 2 of ITTOIA 2005 or Part 3 of CTA 2009 (trading income),
b
the contribution being treated as an expense of management of the employer for the purposes of Chapter 2 of Part 16 of CTA 2009 (expenses of management: companies with investment business), or
c
the contribution being brought into account at Step 1 in section 76(7) of ICTA (expenses of insurance companies) in respect of the employer.
3
Whether a person is connected with another person is determined in accordance with section 1122 of CTA 2010.
4
“Structured finance arrangement” means an arrangement which is a type 1, type 2 or type 3 finance arrangement for the purposes of Chapter 5B of Part 13 of ITA 2007 or Chapter 2 of Part 16 of CTA 2010 (structured finance arrangements).
5
Sections 774 to 776 of CTA 2010 apply as they apply for the purposes of Chapter 2 of Part 16 of that Act.
2
In section 280(1) of FA 2004 (abbreviations) —
a
omit the “and” after the definition of “ITA 2007”, and
b
after the definition of “CTA 2009” insert
, and
“CTA 2010” means the Corporation Tax Act 2010
.
3
1
The amendment made by paragraph 1 above has effect in accordance with sub-paragraphs (2) to (6) ; and the amendments made by paragraph 2 above have effect accordingly.
2
Sections 196B to 196J of FA 2004 have effect in relation to contributions paid by employers on or after 29 November 2011 but before 22 February 2012.
3
Section 196G of FA 2004 also has effect in relation to contributions paid by employers before 29 November 2011 where the event mentioned in section 196G (1)(d) occurs on or after that date (and, for the purpose of applying section 196G in relation to such contributions, assume that sections 196B to 196D also have effect in relation to such contributions).
4
In cases where the relevant event occurs before 21 March 2012, section 196G has effect as if subsection (3) were omitted.
5
Section 196H of FA 2004 also has effect in relation to contributions paid by employers before 29 November 2011 (and, for the purpose of applying section 196H in relation to such contributions, assume that sections 196B to 196D also have effect in relation to such contributions).
6
Section 196I of FA 2004 also has effect in relation to contributions paid by employers before 29 November 2011 (and, for the purpose of applying section 196I in relation to such contributions, assume that sections 196B to 196D also have effect in relation to such contributions).
PART 2
Transitional provision relating to Part 1
Application and interpretation
4
1
This Part of this Schedule applies if —
a
before 29 November 2011, an employer (“E”) pays a contribution (“E’s contribution”) under a registered pension scheme (“the relevant scheme”),
b
at any time, relief is given in respect of E’s contribution,
c
if the reference in paragraph 3(2) above to 29 November 2011 were instead a reference to the date on which E’s contribution is paid, E would have no entitlement to relief in respect of E’s contribution by virtue of section 196B , 196C or 196D of FA 2004, and
d
the asset-backed arrangement is not completed before 29 November 2011.
2
For the purposes of sub-paragraph (1)(c) section 196F of FA 2004 is to be ignored.
5
For the purposes of this Part of this Schedule —
a
terms used in section 196B , 196C or 196D of FA 2004 (as the case may be) have the same meaning as in that section, and
b
as necessary, assume that section 196B , 196C or 196D of FA 2004 (as the case may be) has effect in relation to E’s contribution.
6
1
This paragraph applies for the purposes of this Part of this Schedule.
2
Sub-paragraph (3) applies if the section which would have applied as mentioned in paragraph 4(1)(c) above is section 196B of FA 2004.
3
The asset-backed arrangement is “completed” when neither the lender nor any person connected with the lender is any longer entitled under the asset-backed arrangement (conditionally or unconditionally) to payments in respect of the security.
4
Sub-paragraph (5) applies if the section which would have applied as mentioned in paragraph 4(1)(c) above is section 196C or 196D of FA 2004.
5
The asset-backed arrangement is “completed” —
a
when the share in the partnership’s profits of the person involved in the relevant change is no longer to be determined under the asset-backed arrangement (conditionally or unconditionally) by reference (wholly or partly) to payments in respect of the security, or
b
if earlier, when no responsible authority is any longer entitled (conditionally or unconditionally) to any payments in connection with the asset-backed arrangement.
6
In sub-paragraph (5)(b) the reference to payments are to payments of any type including drawings or distributions from a partnership, payments in respect of the security and other payments in respect of an asset (as read in accordance with section 776(4)(b) of CTA 2010).
7
“Responsible authority” means —
a
the persons who from time to time are the trustees of the relevant scheme, or
b
the persons who from time to time are the persons controlling the management of the relevant scheme,
in their capacity as such.
8
A responsible authority is entitled to a payment “in connection with” the asset-backed arrangement if it is entitled to the payment directly or indirectly in consequence of the arrangement or otherwise in connection with the arrangement.
7
1
In this Part of this Schedule “the completion day” means the earliest of the following —
a
the day on which the asset-backed arrangement is to be completed determined as at the beginning of 29 November 2011;
b
the day on which the asset-backed arrangement is actually completed;
c
the day on which a completion event occurs (see sub-paragraphs (2) to (5) );
d
if an event falling within paragraph 8 occurs, the day on which falls the time immediately before the occurrence of the event.
2
To determine if a completion event occurs for the purposes of sub-paragraph (1)(c) first determine, as at the beginning of 22 February 2012, the following —
a
the number of payments to be made after the beginning of 22 February 2012 to which a responsible authority is entitled in connection with the asset-backed arrangement,
b
what the amounts of those payments are to be, and
c
the times at which those payments are to be made.
3
A completion event occurs for the purposes of sub-paragraph (1)(c) if, after the beginning of 22 February 2012 —
a
whether as a result of a term of the asset-backed arrangement or another arrangement or otherwise —
i
there is a change in the number of payments to be made from that determined under sub-paragraph (2) ,
ii
there is a significant change in the amount of a payment to be made from that so determined, or
iii
there is a significant change in the time at which a payment is to be made from that so determined,
b
a payment determined under sub-paragraph (2) is not made,
c
a payment determined under sub-paragraph (2) is made but its amount is significantly different from the amount so determined for the payment, or
d
a payment determined under sub-paragraph (2) is made but is made at a time significantly different from the time so determined for the payment.
4
In sub-paragraphs (2) and (3) references to payments are to payments of any type including drawings or distributions from a partnership, payments in respect of the security and other payments in respect of an asset (as read in accordance with section 776(4)(b) of CTA 2010).
5
For the purposes of sub-paragraph (3)(b) to (d) it does not matter if the event in question is authorised by a term of the asset-backed arrangement or any other arrangement or results from the occurrence or non-occurrence of another event which is so authorised.
8
1
The events falling within this paragraph are those listed in sub-paragraph (2) .
But an event falls within this paragraph only if it occurs after the beginning of 21 March 2012.
2
The events are —
a
if E is a company within the charge to corporation tax when E’s contribution is paid, E ceases to be within that charge;
b
if E is a limited liability partnership in relation to which section 863(1) of ITTOIA 2005 or section 1273(1) of CTA 2009 applies when E’s contribution is paid, that provision ceases to apply in relation to E;
c
if E is a firm for the purposes of ITTOIA 2005 (see section 847) or CTA 2009 (see section 1257) (other than a limited liability partnership) when E’s contribution is paid, the partnership ceases to carry on the trade, profession or business in question;
d
in any case —
i
if E is a company, E enters administration or the winding up of E starts;
ii
if E is a partnership, the partnership is dissolved;
iii
if E is an individual, E dies.
3
Sections 10(3) and 12(7) of CTA 2009 apply for the purposes of sub-paragraph (2)(d)(i) .
Certain tax consequences not to have effect
9
1
This paragraph applies if —
a
the section which would have applied as mentioned in paragraph 4(1)(c) above is section 196B of FA 2004, and
b
the asset-backed arrangement would have the relevant effect (ignoring this paragraph).
2
The asset-backed arrangement is not to have the relevant effect.
3
The relevant effect is that —
a
an amount of income on which the borrower or a person connected with the borrower would otherwise have been charged to tax is not so charged,
b
an amount which would otherwise have been brought into account in calculating for tax purposes any income of the borrower or of a person connected with the borrower is not so brought into account, or
c
the borrower or a person connected with the borrower becomes entitled to deduct an amount —
i
in calculating income for tax purposes, or
ii
from total income or total profits (as the case may be).
4
But if the borrower is a partnership the relevant effect is that —
a
an amount of income on which a member of the partnership would otherwise have been charged to tax is not so charged,
b
an amount which would otherwise have been brought into account in calculating for tax purposes any income of a member of the partnership is not so brought into account, or
c
a member of the partnership becomes entitled to deduct an amount —
i
in calculating income for tax purposes, or
ii
from total income or total profits (as the case may be).
5
In sub-paragraphs (3) and (4) “amount” means an amount which arises on or after 29 November 2011 but on or before the completion day.
10
1
This paragraph applies if —
a
the section which would have applied as mentioned in paragraph 4(1)(c) above is section 196C of FA 2004, and
b
any relevant change in relation to the partnership would have the relevant effect (ignoring this paragraph).
2
In such a case —
a
Part 9 of ITTOIA 2005 or sections 1259 to 1265 of CTA 2009 (as the case may be) is or are to have effect in relation to the transferor, or any person connected with the transferor, as if the relevant change in relation to the partnership had not occurred, and
b
accordingly, the asset-backed arrangement is not to have the relevant effect.
3
The relevant effect is that —
a
an amount of income on which the transferor, or the person connected with the transferor, would otherwise have been charged to tax is not so charged,
b
an amount which would otherwise have been brought into account in calculating for tax purposes any income of the transferor, or the person connected with the transferor, is not so brought into account, or
c
the transferor, or the person connected with the transferor, becomes entitled to deduct an amount —
i
in calculating income for tax purposes, or
ii
from total income or total profits (as the case may be).
4
In sub-paragraph (3) “amount” means an amount which arises on or after 29 November 2011 but on or before the completion day.
5
In deciding whether sub-paragraph (1)(b) is met assume that amounts of income equal to the payments mentioned in section 196C (2)(g) of FA 2004 were payable to the partnership before the relevant change in relation to it occurred.
11
1
This paragraph applies if —
a
the section which would have applied as mentioned in paragraph 4(1)(c) above is section 196D of FA 2004, and
b
any relevant change in relation to the partnership would have the relevant effect (ignoring this paragraph).
2
The relevant effect is that —
a
an amount of income on which a relevant member would otherwise have been charged to tax is not so charged,
b
an amount which would otherwise have been brought into account in calculating for tax purposes any income of a relevant member is not so brought into account, or
c
a relevant member becomes entitled to deduct an amount —
i
in calculating income for tax purposes, or
ii
from total income or total profits (as the case may be).
3
A relevant member is a person who —
a
was a member of the partnership immediately before the relevant change in relation to it occurred, and
b
is not the lender.
4
In sub-paragraph (2) “amount” means an amount which arises on or after 29 November 2011 but on or before the completion day.
5
If this paragraph applies —
a
Part 9 of ITTOIA 2005 or sections 1259 to 1265 of CTA 2009 (as the case may be) is or are to have effect in relation to any relevant member as if the relevant change in relation to the partnership had not occurred, and
b
accordingly, the asset-backed arrangement is not to have the relevant effect.
6
In deciding whether sub-paragraph (1)(b) is met assume that amounts of income equal to the payments mentioned in section 196D (2)(e) of FA 2004 were payable to the partnership before the relevant change in relation to it occurred.
Adjustments
12
1
For the purposes of paragraphs 13 and 14 —
a
amount A is the total amount of relief given in respect of E’s contribution,
b
amount B is the total of the following amounts —
i
any amounts of income which are charged to tax by virtue of paragraph 9 , 10 or 11 above (as the case may be),
ii
any amounts brought into account in calculating income for tax purposes by virtue of paragraph 9 , 10 or 11 above (as the case may be) (so far as not reflected in sub-paragraph (i) ), and
iii
any amounts stopped from being the subject of an income deduction by virtue of paragraph 9 , 10 or 11 above (as the case may be) (so far as not reflected in sub-paragraph (i) or (ii) ), and
c
subject to sub-paragraph (7) , amount C is the amount of the payment mentioned in sub-paragraph (4) or (6) (as the case may be) so far as the payment —
i
is made under the asset-backed arrangement on the completion day,
ii
is not reflected in amount B,
iii
is not the subject of an income deduction, and
iv
is not a contribution paid by E under the relevant scheme but nevertheless becomes (directly or indirectly) part of the sums held for the purposes of the relevant scheme.
2
In sub-paragraph (1) “income deduction” means a deduction to which any person is entitled —
a
in calculating income for tax purposes, or
b
from total income or total profits.
3
Sub-paragraph (4) applies if the section which would have applied as mentioned in paragraph 4(1)(c) above is section 196B of FA 2004.
4
The payment referred to in sub-paragraph (1)(c) is the payment (if any) which the borrower, or a person connected with the borrower, makes to the lender, or a person connected with the lender, in order to acquire —
a
the security, or
b
any asset substituted for the security under the asset-backed arrangement.
5
Sub-paragraph (6) applies if the section which would have applied as mentioned in paragraph 4(1)(c) above is section 196C or 196D of FA 2004.
6
The payment referred to in sub-paragraph (1)(c) is the payment (if any) which E, or a person connected with E, makes —
a
to the lender, or a person connected with the lender, in order to reverse the relevant change in relation to the partnership, or
b
otherwise to a responsible authority in order to buy out the authority’s interest in any partnership involved in the asset-backed arrangement.
7
Amount C is to be taken to be nil if —
a
the completion day is on or after 22 February 2012,
b
on or before the completion day, a commitment (whether or not legally enforceable and whether or not subject to any conditions) is given (directly or indirectly) to a relevant person, and
c
the commitment —
i
is a commitment to secure that a person receives money or another asset, and
ii
is linked (directly or indirectly) to the making of the payment covered by amount C.
8
In sub-paragraph (7)(b) “relevant person” means —
a
E;
b
a person connected with E;
c
a person acting (directly or indirectly) at the direction or request, or with the agreement, of E or a person connected with E;
d
a person chosen (directly or indirectly) by E or a person connected with E;
e
a person within a class of person chosen (directly or indirectly) by E or a person connected with E;
f
a partnership.
9
But “relevant person” does not include a responsible authority.
13
1
This paragraph applies if amount A exceeds the sum of amounts B and C.
2
The amount of the excess is treated as follows as relevant —
a
for corporation tax purposes, the amount is treated as if it were a profit which E has in respect of E’s loan relationships chargeable to corporation tax under section 299 of CTA 2009 for E’s accounting period in which the beginning of the completion day falls, or
b
for income tax purposes, the amount is treated as if it were an amount of income of E chargeable to income tax under Chapter 8 of Part 5 of ITTOIA 2005 for the tax year in which the beginning of the completion day falls.
14
If the sum of amounts B and C exceeds amount A —
a
E is to be treated as having paid a contribution under the relevant scheme in respect of any individual of an amount equal to the excess,
b
the contribution is to be treated as having been paid at the beginning of the completion day, and
c
E is to be given relief as provided for by section 196 of FA 2004 accordingly.
PART 3
Denial of relief for contributions paid on or after 22 February 2012
15
In Chapter 4 of Part 4 of FA 2004 (registered pension schemes: tax reliefs and exemptions) after section 196A insert —
Employer asset-backed contributions: denial of relief (1)
196B
1
An employer (“E”) is not to be given relief in respect of a contribution (“E’s contribution”) paid by E under a registered pension scheme if conditions A, B and C are met.
2
Condition A is that —
a
under an arrangement (“the asset-backed arrangement”) —
i
a person (“the borrower”) receives money or another asset (“the advance”) from another person (“the lender”),
ii
the borrower, or a person connected with the borrower, makes a disposal of an asset (“the security”) to or for the benefit of the lender or a person connected with the lender, and
iii
the lender, or a person connected with the lender, is entitled to payments in respect of the security,
b
the borrower is E or a person connected with E, and
c
the advance is (wholly or partly) paid or provided by the lender out of E’s contribution (directly or indirectly),
and the case is not one in relation to which either condition A in section 196D or condition A in section 196F is met.
3
For the purposes of subsection (2)(a)(iii) it does not matter if an entitlement of the lender, or a person connected with the lender, is subject to any condition.
4
Condition B is that the asset-backed arrangement is not an acceptable structured finance arrangement (see section 196C ).
5
Condition C is that it is reasonable to suppose that the amount of one or more of the payments mentioned in subsection (2)(a)(iii) has been, or is to be, determined (wholly or partly) on the basis that, in essence, the whole or a part of the advance represents a loan which is (wholly or partly) to be repaid by way of one or more of those payments.
6
For the purposes of subsection (5) it does not matter —
a
that the repayment of the loan might be subject to any condition, or
b
that the accounts of any person do not record a financial liability in respect of the whole or a part of the advance or that the whole or a part of the advance is not otherwise treated as representing a loan for the purposes of the accounts of any person,
but, subject to that, all relevant circumstances are to be taken into account in order to get to the essence of the matter.
7
For the purposes of this section —
a
the borrower and the lender are not connected with one another if that would otherwise be the case,
b
if the borrower is not E, references to a person connected with the borrower include a person connected with E who would not otherwise be connected with the borrower, and
c
“loan” includes any advance of money.
Employer asset-backed contributions: “acceptable structured finance arrangement” (1)
196C
1
For the purposes of section 196B the asset-backed arrangement is an “acceptable structured finance arrangement” if conditions M to Q are met.
2
Condition M is that —
a
in accordance with generally accepted accounting practice, the borrower’s accounts for the period in which the advance is received record a financial liability (“the recorded financial liability”) in respect of the advance, and
b
the asset-backed arrangement is a type 1 finance arrangement for the purposes of Chapter 5B of Part 13 of ITA 2007 or Chapter 2 of Part 16 of CTA 2010 (finance arrangements).
3
Condition N is that —
a
the lender is a responsible authority,
b
the advance is money which is paid by the lender directly to the borrower wholly and directly out of E’s contribution, and
c
the advance and the recorded financial liability (as originally recorded) are both of an amount equal to the amount of E’s contribution.
4
Condition O is that, as at the time the advance is paid, the position of the lender is as follows —
a
it is the lender (and not any person connected with the lender) who is entitled to the payments mentioned in section 196B (2)(a)(iii) ,
b
those payments are to arise at times which have been fixed and fall at intervals of no more than one year (but allowing for payments otherwise due to arise on a non-working day to arise on the next working day),
c
the lender is to receive each payment no later than 3 months after the day on which the payment arises (but allowing for payments otherwise due to be received on a non-working day to be received on the next working day),
d
on receipt by the lender, each payment is directly to become part of the sums held for the purposes of the registered pension scheme,
e
the payments are all to be of the same amount,
f
the total amount of the payments is not to be less than the amount of E’s contribution, and
g
all the payments are to be received by the lender within a period (“the payment period”) ending no later than the end of the period of 25 years beginning with the day on which E’s contribution is paid.
5
For the purposes of subsection (4)(b) the first payment is to arise no later than one year after the day on which the advance is paid.
6
For the purposes of subsection (4)(e) the following are to be ignored —
a
negligible differences in the amounts of payments;
b
differences in the amounts of payments which would be caused by a term of the asset-backed arrangement that requires the amounts of all outstanding payments to be increased periodically by a percentage which cannot be higher than the highest of the following —
i
the percentage increase in the consumer prices index for the reference period, being a period determined, in relation to each periodic increase, under the term of the asset-backed arrangement in question;
ii
the percentage increase in the retail prices index for the reference period;
iii
the percentage for the reference period which corresponds to 5% per annum.
7
For the purposes of subsection (4) , in determining the lender’s position, regard must be had (in particular) to any arrangements connected (directly or indirectly) to the asset-backed arrangement.
8
Condition P is that, as at the time the advance is paid, in accordance with generally accepted accounting practice the recorded financial liability is to be reduced to nil by the end of the payment period by (and only by) the payments mentioned in section 196B (2)(a)(iii) .
9
Condition Q is that, as at the time the advance is paid, no commitment to which subsection (10) applies has been given.
10
This subsection applies to a commitment (whether or not legally enforceable and whether or not subject to any conditions) if —
a
it is given (directly or indirectly) to a relevant person,
b
it is a commitment to secure that a person receives money or another asset, and
c
it is linked (directly or indirectly) to the receipt by the lender of a payment mentioned in section 196B (2)(a)(iii) .
11
In subsection (10)(a) “relevant person” means —
a
E;
b
a person connected with E;
c
a person acting (directly or indirectly) at the direction or request, or with the agreement, of E or a person connected with E;
d
a person chosen (directly or indirectly) by E or a person connected with E;
e
a person within a class of person chosen (directly or indirectly) by E or a person connected with E;
f
a partnership;
but does not include a responsible authority.
12
In this section “responsible authority” means —
a
the persons who from time to time are the trustees of the registered pension scheme, or
b
the persons who from time to time are the persons controlling the management of the registered pension scheme,
in their capacity as such.
Employer asset-backed contributions: denial of relief (2)
196D
1
An employer (“E”) is not to be given relief in respect of a contribution (“E’s contribution”) paid by E under a registered pension scheme if conditions A and B are met.
2
Condition A is that —
a
under an arrangement (“the asset-backed arrangement”) a person (“the transferor”) makes a disposal of an asset (“the security”) to a partnership,
b
the transferor is E or a person connected with E,
c
the transferor, or a person connected with the transferor, is a member of the partnership immediately after the disposal (whether or not a member immediately before it),
d
under the asset-backed arrangement the partnership receives money or another asset (“the advance”) from a person (“the lender”) other than the transferor,
e
the advance is (wholly or partly) paid or provided by the lender out of E’s contribution (directly or indirectly),
f
there is a relevant change in relation to the partnership (see section 196H ), and
g
under the asset-backed arrangement the share in the partnership’s profits of the person involved in the relevant change (see section 196H ) is determined by reference (wholly or partly) to payments in respect of the security.
3
If the transferor is not E, for the purposes of this section references to a person connected with the transferor include a person connected with E who would not otherwise be connected with the transferor.
4
For the purposes of subsection (2)(g) it does not matter if any determination of the share in the partnership’s profits of the person involved in the relevant change as mentioned is subject to any condition.
5
Condition B is that the asset-backed arrangement is not an acceptable structured finance arrangement (see section 196E ).
Employer asset-backed contributions: “acceptable structured finance arrangement” (2)
196E
1
For the purposes of section 196D the asset-backed arrangement is an “acceptable structured finance arrangement” if conditions M to Q are met.
2
Condition M is that —
a
in accordance with generally accepted accounting practice, the partnership’s accounts for the period in which the advance is received record a financial liability (“the recorded financial liability”) in respect of the advance, and
b
the asset-backed arrangement is a type 2 finance arrangement for the purposes of Chapter 5B of Part 13 of ITA 2007 or Chapter 2 of Part 16 of CTA 2010 (finance arrangements).
3
Condition N is that —
a
the lender is a responsible authority,
b
the advance is money which is paid by the lender directly to the partnership wholly and directly out of E’s contribution, and
c
the advance and the recorded financial liability (as originally recorded) are both of an amount equal to the amount of E’s contribution.
4
Condition O is that, as at the time the advance is paid, the position of the lender is as follows —
a
it is the lender (and not any person connected with the lender) who is or is to be the person involved in the relevant change in relation to the partnership,
b
the lender’s share in the partnership’s profits is to be determined wholly by reference to the payments mentioned in section 196D (2)(g) ,
c
determinations of the lender’s share in the partnership’s profits are to be made at times which have been fixed and fall at intervals of no more than one year (but allowing for determinations otherwise due to be made on a non-working day to be made on the next working day),
d
no later than 3 months after the day on which a determination of the lender’s share in the partnership’s profits is made, the lender is to make a drawing from the partnership on account of its determined share (but allowing for drawings otherwise due to be made on a non-working day to be made on the next working day),
e
on its making, each drawing is directly to become part of the sums held for the purposes of the registered pension scheme,
f
the drawings are all to be of the same amount,
g
the total amount of the drawings is not to be less than the amount of E’s contribution, and
h
all of the lender’s share in the partnership’s profits is to be drawn by the lender from the partnership within a period (“the drawing period”) ending no later than the end of the period of 25 years beginning with the day on which E’s contribution is paid.
5
For the purposes of subsection (4)(c) the first determination is to be made no later than one year after the day on which the advance is paid.
6
For the purposes of subsection (4)(f) the following are to be ignored —
a
negligible differences in the amounts of drawings;
b
differences in the amounts of drawings which would be caused by a term of the asset-backed arrangement that requires the amounts of all outstanding drawings to be increased periodically by a percentage which cannot be higher than the highest of the following —
i
the percentage increase in the consumer prices index for the reference period, being a period determined, in relation to each periodic increase, under the term of the asset-backed arrangement in question;
ii
the percentage increase in the retail prices index for the reference period;
iii
the percentage for the reference period which corresponds to 5% per annum.
7
In determining the lender’s position for the purposes of subsection (4) , regard must be had (in particular) to any arrangements connected (directly or indirectly) to the asset-backed arrangement.
8
Condition P is that, as at the time the advance is paid, in accordance with generally accepted accounting practice the recorded financial liability is to be reduced to nil by the end of the drawing period by (and only by) the payments mentioned in section 196D (2)(g) .
9
Condition Q is that, as at the time the advance is paid, no commitment to which subsection (10) applies has been given.
10
This subsection applies to a commitment (whether or not legally enforceable and whether or not subject to any conditions) if —
a
it is given (directly or indirectly) to a relevant person,
b
it is a commitment to secure that a person receives money or another asset, and
c
it is linked (directly or indirectly) to any determination of the lender’s share in the partnership’s profits or any drawing from the partnership on account of that share.
11
In subsection (10)(a) “relevant person” means —
a
E;
b
a person connected with E;
c
a person acting (directly or indirectly) at the direction or request, or with the agreement, of E or a person connected with E;
d
a person chosen (directly or indirectly) by E or a person connected with E;
e
a person within a class of person chosen (directly or indirectly) by E or a person connected with E;
f
a partnership;
but does not include a responsible authority.
12
In this section —
a
“responsible authority” means —
i
the persons who from time to time are the trustees of the registered pension scheme, or
ii
the persons who from time to time are the persons controlling the management of the registered pension scheme,
in their capacity as such, and
b
references to the making of drawings from the partnership include references to the receiving of distributions from the partnership.
Employer asset-backed contributions: denial of relief (3)
196F
1
An employer (“E”) is not to be given relief in respect of a contribution (“E’s contribution”) paid by E under a registered pension scheme if conditions A and B are met.
2
Condition A is that —
a
a partnership holds an asset (“the security”) at any time before an arrangement (“the asset-backed arrangement”) is made,
b
under the asset-backed arrangement the partnership receives money or another asset (“the advance”) from another person (“the lender”),
c
the advance is (wholly or partly) paid or provided by the lender out of E’s contribution (directly or indirectly),
d
there is a relevant change in relation to the partnership (see section 196H ), and
e
under the asset-backed arrangement the share in the partnership’s profits of the person involved in the relevant change (see section 196H ) is determined by reference (wholly or partly) to payments in respect of the security.
3
For the purposes of subsection (2)(e) it does not matter if any determination of the share in the partnership’s profits of the person involved in the relevant change as mentioned is subject to any condition.
4
Condition B is that the asset-backed arrangement is not an acceptable structured finance arrangement (see section 196G ).
Employer asset-backed contributions: “acceptable structured finance arrangement” (3)
196G
1
For the purposes of section 196F the asset-backed arrangement is an “acceptable structured finance arrangement” if conditions M to Q are met.
2
Condition M is that —
a
in accordance with generally accepted accounting practice, the partnership’s accounts for the period in which the advance is received record a financial liability (“the recorded financial liability”) in respect of the advance, and
b
the asset-backed arrangement is a type 3 finance arrangement for the purposes of Chapter 5B of Part 13 of ITA 2007 or Chapter 2 of Part 16 of CTA 2010 (finance arrangements).
3
Condition N is that —
a
the lender is a responsible authority,
b
the advance is money which is paid by the lender directly to the partnership wholly and directly out of E’s contribution, and
c
the advance and the recorded financial liability (as originally recorded) are both of an amount equal to the amount of E’s contribution.
4
Condition O is that, as at the time the advance is paid, the position of the lender is as follows —
a
it is the lender (and not any person connected with the lender) who is or is to be the person involved in the relevant change in relation to the partnership,
b
the lender’s share in the partnership’s profits is to be determined wholly by reference to the payments mentioned in section 196F (2)(e) ,
c
determinations of the lender’s share in the partnership’s profits are to be made at times which have been fixed and fall at intervals of no more than one year (but allowing for determinations otherwise due to be made on a non-working day to be made on the next working day),
d
no later than 3 months after the day on which a determination of the lender’s share in the partnership’s profits is made, the lender is to make a drawing from the partnership on account of its determined share (but allowing for drawings otherwise due to be made on a non-working day to be made on the next working day),
e
on its making, each drawing is directly to become part of the sums held for the purposes of the registered pension scheme,
f
the drawings are all to be of the same amount,
g
the total amount of the drawings is not to be less than the amount of E’s contribution, and
h
all of the lender’s share in the partnership’s profits is to be drawn by the lender from the partnership within a period (“the drawing period”) ending no later than the end of the period of 25 years beginning with the day on which E’s contribution is paid.
5
For the purposes of subsection (4)(c) the first determination is to be made no later than one year after the day on which the advance is paid.
6
For the purposes of subsection (4)(f) the following are to be ignored —
a
negligible differences in the amounts of drawings;
b
differences in the amounts of drawings which would be caused by a term of the asset-backed arrangement that requires the amounts of all outstanding drawings to be increased periodically by a percentage which cannot be higher than the highest of the following —
i
the percentage increase in the consumer prices index for the reference period, being a period determined, in relation to each periodic increase, under the term of the asset-backed arrangement in question;
ii
the percentage increase in the retail prices index for the reference period;
iii
the percentage for the reference period which corresponds to 5% per annum.
7
In determining the lender’s position for the purposes of subsection (4) , regard must be had (in particular) to any arrangements connected (directly or indirectly) to the asset-backed arrangement.
8
Condition P is that, as at the time the advance is paid, in accordance with generally accepted accounting practice the recorded financial liability is to be reduced to nil by the end of the drawing period by (and only by) the payments mentioned in section 196F (2)(e) .
9
Condition Q is that, as at the time the advance is paid, no commitment to which subsection (10) applies has been given.
10
This subsection applies to a commitment (whether or not legally enforceable and whether or not subject to any conditions) if —
a
it is given (directly or indirectly) to a relevant person,
b
it is a commitment to secure that a person receives money or another asset, and
c
it is linked (directly or indirectly) to any determination of the lender’s share in the partnership’s profits or any drawing from the partnership on account of that share.
11
In subsection (10)(a) “relevant person” means —
a
E;
b
a person connected with E;
c
a person acting (directly or indirectly) at the direction or request, or with the agreement, of E or a person connected with E;
d
a person chosen (directly or indirectly) by E or a person connected with E;
e
a person within a class of person chosen (directly or indirectly) by E or a person connected with E;
f
a partnership;
but does not include a responsible authority.
12
In this section —
a
“responsible authority” means —
i
the persons who from time to time are the trustees of the registered pension scheme, or
ii
the persons who from time to time are the persons controlling the management of the registered pension scheme,
in their capacity as such, and
b
references to the making of drawings from the partnership include references to the receiving of distributions from the partnership.
Employer asset-backed contributions: “relevant change in relation to the partnership” and “person involved in the relevant change”
196H
1
For the purposes of sections 196D and 196F there is a relevant change in relation to the partnership if condition X or Y is met.
2
Condition X is that, in connection with the asset-backed arrangement, the lender or a person connected with the lender becomes a member of the partnership at any time.
3
Condition Y is that —
a
in connection with the asset-backed arrangement, there is at any time a change in a member’s share in the partnership’s profits, and
b
the member is the lender or a person connected with the lender or a person who in connection with the asset-backed arrangement becomes at any time connected with the lender.
4
For the purposes of subsections (2) and (3) an event occurs in connection with the asset-backed arrangement if it occurs directly or indirectly in consequence of it or otherwise in connection with it.
5
For the purposes of sections 196D to 196G references to the person involved in the relevant change in relation to the partnership are —
a
if it is condition X that is met, to the lender or the person connected with the lender (as the case may be), and
b
if it is condition Y that is met, to the member of the partnership in whose share in the partnership’s profits there is a change.
Employer asset-backed contributions: change in lender’s original position under acceptable structured finance arrangement etc
196I
1
This section applies if —
a
an employer (“E”) pays a contribution (“E’s contribution”) under a registered pension scheme,
b
conditions A and C in section 196B are met or condition A in section 196D or 196F is met,
c
the asset-backed arrangement is an acceptable structured finance arrangement for the purposes of section 196B , 196D or 196F (as the case may be) and, accordingly, condition B in that section is not met, and
d
at any time (“the relevant time”) after the advance is paid —
i
the lender’s position changes from the lender’s original position in any respect (whether as a result of a term of the asset-backed arrangement or another arrangement or otherwise),
ii
an event occurs or does not occur and the occurrence or non-occurrence of the event does not accord with the lender’s original position in any respect,
iii
in accordance with generally accepted accounting practice, the recorded financial liability is reduced to nil other than by a payment mentioned in section 196B (2)(a)(iii) , 196D (2)(g) or section 196F (2)(e) (as the case may be),
iv
a commitment to which section 196C (10) , 196E (10) or 196G (10) (as the case may be) applies is given, or
v
an event falling within section 196J occurs.
2
This section also applies if —
a
the requirements of subsection (1)(a) to (c) are met, and
b
at any time (“the relevant time”) after the advance is paid, in accordance with generally accepted accounting practice, the recorded financial liability is reduced in part other than by a payment mentioned in section 196B (2)(a)(iii) , 196D (2)(g) or section 196F (2)(e) (as the case may be).
3
Subject to subsection (4) , the relevant amount is treated as follows as relevant —
a
for corporation tax purposes, the relevant amount is treated as if it were a profit which E has in respect of E’s loan relationships chargeable to corporation tax under section 299 of CTA 2009 for E’s accounting period in which the relevant time falls, or
b
for income tax purposes, the relevant amount is treated as if it were an amount of income of E chargeable to income tax under Chapter 8 of Part 5 of ITTOIA 2005 for the tax year in which the relevant time falls.
4
The amount treated as profit or income by subsection (3)(a) or (b) , together with any amounts so treated on any previous applications of this section in relation to the asset-backed arrangement, is not to exceed the total amount of relief given in respect of E’s contribution.
5
If this section applies by virtue of subsection (1) , from the relevant time Chapter 5B of Part 13 of ITA 2007 or Chapter 2 of Part 16 of CTA 2010 (as relevant) is no longer to apply in relation to the asset-backed arrangement.
6
But no person is, by virtue of subsection (5) , to be placed in a position which is more advantageous than the position in which the person would have been had this section never applied; and, in order to give effect to this principle, such assessments to tax or adjustments to any assessment to tax as are just and reasonable are to be made.
7
Subsection (1)(d)(i) and (ii) does not cover —
a
cases in which the lender’s change in position, or the occurrence or non-occurrence of the event, is the direct result of a mere administrative error, so long as the consequences of the error are remedied promptly, or
b
mere changes in the persons who are the trustees of the registered pension scheme or in the persons who control the management of the registered pension scheme.
8
For the purposes of subsection (1)(d)(ii) it does not matter if the occurrence or non-occurrence of the event is authorised by a term of the asset-backed arrangement or results from the occurrence or non-occurrence of another event which is so authorised.
9
If this section applies by virtue of subsection (1)(d)(v) , in subsection (3) references to the relevant time are to be read as references to the time immediately before the relevant time.
10
In this section —
“the advance” and “the asset-backed arrangement” have the same meaning as in section 196B , 196D or 196F (as the case may be),
“the lender’s original position” means the lender’s position as at the time the advance is paid set out in the paragraphs of section 196C (4) , 196E (4) or 196G (4) (as the case may be),
“the recorded financial liability” has the same meaning as in section 196C , 196E or 196G (as the case may be), and
“the relevant amount” means —
if this section applies by virtue of subsection (1) , the outstanding amount of the recorded financial liability immediately before the relevant time determined in accordance with generally accepted accounting practice, or
if this section applies by virtue of subsection (2) , the amount of the reduction of the recorded financial liability.
Employer asset-backed contributions: further events which cause section 196I to apply
196J
1
The events falling within this section are those listed in subsection (2) .
2
The events are —
a
if E is a company within the charge to corporation tax when E’s contribution is paid, E ceases to be within that charge;
b
if E is a limited liability partnership in relation to which section 863(1) of ITTOIA 2005 or section 1273(1) of CTA 2009 applies when E’s contribution is paid, that provision ceases to apply in relation to E;
c
if E is a firm for the purposes of ITTOIA 2005 (see section 847) or CTA 2009 (see section 1257) (other than a limited liability partnership) when E’s contribution is paid, the partnership ceases to carry on the trade, profession or business in question;
d
in any case —
i
if E is a company, E enters administration or the winding up of E starts;
ii
if E is a partnership, the partnership is dissolved;
iii
if E is an individual, E dies.
3
Sections 10(3) and 12(7) of CTA 2009 apply for the purposes of subsection (2)(d)(i) .
Employer asset-backed contributions: “advances” under acceptable structured finance arrangements
196K
1
This section applies if —
a
an employer pays a contribution under a registered pension scheme,
b
condition A in section 196B , 196D or 196F is met,
c
the asset-backed arrangement is an acceptable structured finance arrangement for the purposes of section 196B , 196D or 196F (as the case may be) and, accordingly, condition B in that section is not met, and
d
the advance gives rise to a loan within the meaning of Chapter 3 (see section 162).
2
Section 180(4) does not prevent the advance from being a scheme administration employer payment (if it would otherwise do so).
3
In this section “the advance” and “the asset-backed arrangement” have the same meaning as in section 196B , 196D or 196F (as the case may be).
Employer asset-backed contributions: supplementary
196L
1
This section applies for the purposes of sections 196B to 196K .
2
References to relief being given in respect of a contribution paid by an employer under a registered pension scheme are references to relief being given by way of —
a
the contribution being deducted in computing the amount of the employer’s profits for the purposes of Part 2 of ITTOIA 2005 or Part 3 of CTA 2009 (trading income),
b
the contribution being treated as an expense of management of the employer for the purposes of Chapter 2 of Part 16 of CTA 2009 (expenses of management: companies with investment business), or
c
the contribution being brought into account at Step 1 in section 76(7) of ICTA (expenses of insurance companies) in respect of the employer.
3
Whether a person is connected with another person is determined in accordance with section 1122 of CTA 2010.
4
Sections 774, 775 and 776(2) and (4) of CTA 2010 apply as they apply for the purposes of Chapter 2 of Part 16 of that Act.
5
A reference to a disposal of an asset includes —
a
anything constituting a disposal of an asset for the purposes of TCGA 1992, and
b
so far as not covered by paragraph (a) , the taking of any step by virtue of which a person receives an asset.
6
Section 776(2) of CTA 2010 applies for the purposes of subsection (5)(b) .
7
“Non-working day” means —
a
a Saturday or Sunday,
b
a Christmas Eve, Christmas Day or Good Friday, or
c
a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom,
and “working day” is to be read accordingly.
16
In section 280(1) of FA 2004 (abbreviations) —
a
omit the “and” after the definition of “ITA 2007”, and
b
after the definition of “CTA 2009” insert
, and
CTA 2010” means the Corporation Tax Act 2010
.
17
1
Subject to what follows, the amendments made by paragraphs 15 and 16 above have effect in relation to contributions paid by employers on or after 22 February 2012.
2
In cases where the relevant time falls before 21 March 2012, section 196I of FA 2004 has effect as if subsection (6) were omitted.
3
An event falls within section 196J of FA 2004 only if it occurs after the beginning of 21 March 2012.
PART 4
Transitional provision relating to Part 3
Application and interpretation
18
1
This Part of this Schedule applies if —
a
before 22 February 2012, an employer (“E”) pays a contribution (“E’s contribution”) under a registered pension scheme (“the relevant scheme”),
b
Part 2 of this Schedule does not apply in relation to E’s contribution,
c
at any time, relief is given in respect of E’s contribution,
d
if the reference in paragraph 17 above to 22 February 2012 were instead a reference to the date on which E’s contribution is paid, E would have no entitlement to relief in respect of E’s contribution by virtue of section 196B , 196D or 196F of FA 2004, and
e
the asset-backed arrangement is not completed before 22 February 2012.
2
For the purposes of sub-paragraph (1)(d) assume that Parts 1 and 2 of this Schedule were never enacted.
3
For the purposes of sub-paragraph (1)(d) , in sections 196C (5) , 196E (5) and 196G (5) the reference to one year is to be read as a reference to 18 months.
19
For the purposes of this Part of this Schedule —
a
terms used in section 196B , 196D or 196F of FA 2004 (as the case may be) have the same meaning as in that section, and
b
as necessary, assume that section 196B , 196D or 196F of FA 2004 (as the case may be) has effect in relation to E’s contribution.
20
1
This paragraph applies for the purposes of this Part of this Schedule.
2
Sub-paragraph (3) applies if the section which would have applied as mentioned in paragraph 18(1)(d) above is section 196B of FA 2004.
3
The asset-backed arrangement is “completed” when neither the lender nor any person connected with the lender is any longer entitled under the asset-backed arrangement (conditionally or unconditionally) to payments in respect of the security.
4
Sub-paragraph (5) applies if the section which would have applied as mentioned in paragraph 18(1)(d) above is section 196D or 196F of FA 2004.
5
The asset-backed arrangement is “completed” when the share in the partnership’s profits of the person involved in the relevant change is no longer to be determined under the asset-backed arrangement (conditionally or unconditionally) by reference (wholly or partly) to payments in respect of the security.
21
1
In this Part of this Schedule “the completion day” means the earliest of the following —
a
the day on which the asset-backed arrangement is to be completed determined as at the beginning of 22 February 2012;
b
the day on which the asset-backed arrangement is actually completed;
c
the day which is the last day of the period of 25 years beginning with the day on which E’s contribution is paid;
d
the day on which a completion event occurs (see sub-paragraphs (2) to (11) );
e
if an event falling within paragraph 22 occurs, the day on which falls the time immediately before the occurrence of the event.
2
Sub-paragraphs (3) and (4) apply if the section which would have applied as mentioned in paragraph 18(1)(d) above is section 196B of FA 2004.
3
To determine if a completion event occurs for the purposes of sub-paragraph (1)(d) first determine, as at the beginning of 22 February 2012, the following —
a
the number of payments to be made after the beginning of 22 February 2012 to which the lender or a person connected with the lender is entitled in connection with the asset-backed arrangement,
b
what the amounts of those payments are to be, and
c
the times at which those payments are to be made.
4
A completion event occurs for the purposes of sub-paragraph (1)(d) if, after the beginning of 22 February 2012 —
a
whether as a result of a term of the asset-backed arrangement or another arrangement or otherwise —
i
there is a change in the number of payments to be made from that determined under sub-paragraph (3) ,
ii
there is a significant change in the amount of a payment to be made from that so determined, or
iii
there is a significant change in the time at which a payment is to be made from that so determined,
b
a payment determined under sub-paragraph (3) is not made,
c
a payment determined under sub-paragraph (3) is made but its amount is significantly different from the amount so determined for the payment, or
d
a payment determined under sub-paragraph (3) is made but is made at a time significantly different from the time so determined for the payment.
5
Sub-paragraphs (6) and (7) apply if the section which would have applied as mentioned in paragraph 18(1)(d) above is section 196D or 196F of FA 2004.
6
To determine if a completion event occurs for the purposes of sub-paragraph (1)(d) first determine, as at the beginning of 22 February 2012, the following —
a
what the amount of the share in the partnership’s profits of the person involved in the relevant change is to be so far as the share is to be determined under the asset-backed arrangement by reference to payments made after the beginning of 22 February 2012,
b
the number of drawings to be made from the partnership on account of the amount determined under paragraph (a) and the number of any other payments to be made after the beginning of 22 February 2012 to which the person involved in the relevant change, the lender or any other person connected with the lender is entitled in connection with the asset-backed arrangement,
c
what the amounts of those drawings or other payments are to be, and
d
the times at which those drawings or other payments are to be made.
7
A completion event occurs for the purposes of sub-paragraph (1)(d) if, after the beginning of 22 February 2012 —
a
whether as a result of a term of the asset-backed arrangement or another arrangement or otherwise —
i
there is a change in the number of drawings or other payments to be made from that determined under sub-paragraph (6) ,
ii
there is a significant change in the amount of a drawing or other payment to be made from that so determined, or
iii
there is a significant change in the time at which a drawing or other payment is to be made from that so determined,
b
a drawing or other payment determined under sub-paragraph (6) is not made,
c
a drawing or other payment determined under sub-paragraph (6) is made but its amount is significantly different from the amount so determined for the drawing or other payment, or
d
a drawing or other payment determined under sub-paragraph (6) is made but is made at a time significantly different from the time so determined for the drawing or other payment.
8
In sub-paragraphs (3) and (4) and (6) and (7) references to payments are to payments of any type including drawings or distributions from a partnership, payments in respect of the security and other payments in respect of an asset (as read in accordance with section 776(4)(b) of CTA 2010).
9
In sub-paragraphs (6) and (7) references to the making of drawings from the partnership include references to the receiving of distributions from the partnership.
10
For the purposes of sub-paragraphs (3)(a) and (6)(b) a person is entitled to a payment “in connection with” the asset-backed arrangement if the person is entitled to the payment directly or indirectly in consequence of the arrangement or otherwise in connection with the arrangement.
11
For the purposes of sub-paragraphs (4)(b) to (d) and (7)(b) to (d) it does not matter if the event in question is authorised by a term of the asset-backed arrangement or any other arrangement or results from the occurrence or non-occurrence of another event which is so authorised.
22
1
The events falling within this paragraph are those listed in sub-paragraph (2) .
But an event falls within this paragraph only if it occurs after the beginning of 21 March 2012.
2
The events are —
a
if E is a company within the charge to corporation tax when E’s contribution is paid, E ceases to be within that charge;
b
if E is a limited liability partnership in relation to which section 863(1) of ITTOIA 2005 or section 1273(1) of CTA 2009 applies when E’s contribution is paid, that provision ceases to apply in relation to E;
c
if E is a firm for the purposes of ITTOIA 2005 (see section 847) or CTA 2009 (see section 1257) (other than a limited liability partnership) when E’s contribution is paid, the partnership ceases to carry on the trade, profession or business in question;
d
in any case —
i
if E is a company, E enters administration or the winding up of E starts;
ii
if E is a partnership, the partnership is dissolved;
iii
if E is an individual, E dies.
3
Sections 10(3) and 12(7) of CTA 2009 apply for the purposes of sub-paragraph (2)(d)(i) .
Certain tax consequences not to have effect
23
1
This paragraph applies if —
a
the section which would have applied as mentioned in paragraph 18(1)(d) above is section 196B of FA 2004, and
b
the asset-backed arrangement would have the relevant effect (ignoring this paragraph).
2
The asset-backed arrangement is not to have the relevant effect.
3
The relevant effect is that —
a
an amount of income on which the borrower or a person connected with the borrower would otherwise have been charged to tax is not so charged,
b
an amount which would otherwise have been brought into account in calculating for tax purposes any income of the borrower or of a person connected with the borrower is not so brought into account, or
c
the borrower or a person connected with the borrower becomes entitled to deduct an amount —
i
in calculating income for tax purposes, or
ii
from total income or total profits (as the case may be).
4
But if the borrower is a partnership the relevant effect is that —
a
an amount of income on which a member of the partnership would otherwise have been charged to tax is not so charged,
b
an amount which would otherwise have been brought into account in calculating for tax purposes any income of a member of the partnership is not so brought into account, or
c
a member of the partnership becomes entitled to deduct an amount —
i
in calculating income for tax purposes, or
ii
from total income or total profits (as the case may be).
5
In sub-paragraphs (3) and (4) “amount” means an amount which arises on or after 22 February 2012 but on or before the completion day.
24
1
This paragraph applies if —
a
the section which would have applied as mentioned in paragraph 18(1)(d) above is section 196D of FA 2004, and
b
any relevant change in relation to the partnership would have the relevant effect (ignoring this paragraph).
2
In such a case —
a
Part 9 of ITTOIA 2005 or sections 1259 to 1265 of CTA 2009 (as the case may be) is or are to have effect in relation to the transferor, or any person connected with the transferor, as if the relevant change in relation to the partnership had not occurred, and
b
accordingly, the asset-backed arrangement is not to have the relevant effect.
3
The relevant effect is that —
a
an amount of income on which the transferor, or the person connected with the transferor, would otherwise have been charged to tax is not so charged,
b
an amount which would otherwise have been brought into account in calculating for tax purposes any income of the transferor, or the person connected with the transferor, is not so brought into account, or
c
the transferor, or the person connected with the transferor, becomes entitled to deduct an amount —
i
in calculating income for tax purposes, or
ii
from total income or total profits (as the case may be).
4
In sub-paragraph (3) “amount” means an amount which arises on or after 22 February 2012 but on or before the completion day.
5
In deciding whether sub-paragraph (1)(b) is met assume that amounts of income equal to the payments mentioned in section 196D (2)(g) of FA 2004 were payable to the partnership before the relevant change in relation to it occurred.
25
1
This paragraph applies if —
a
the section which would have applied as mentioned in paragraph 18(1)(d) above is section 196F of FA 2004, and
b
any relevant change in relation to the partnership would have the relevant effect (ignoring this paragraph).
2
The relevant effect is that —
a
an amount of income on which a relevant member would otherwise have been charged to tax is not so charged,
b
an amount which would otherwise have been brought into account in calculating for tax purposes any income of a relevant member is not so brought into account, or
c
a relevant member becomes entitled to deduct an amount —
i
in calculating income for tax purposes, or
ii
from total income or total profits (as the case may be).
3
A relevant member is a person who —
a
was a member of the partnership immediately before the relevant change in relation to it occurred, and
b
is not the lender.
4
In sub-paragraph (2) “amount” means an amount which arises on or after 22 February 2012 but on or before the completion day.
5
If this paragraph applies —
a
Part 9 of ITTOIA 2005 or sections 1259 to 1265 of CTA 2009 (as the case may be) is or are to have effect in relation to any relevant member as if the relevant change in relation to the partnership had not occurred, and
b
accordingly, the asset-backed arrangement is not to have the relevant effect.
6
In deciding whether sub-paragraph (1)(b) is met assume that amounts of income equal to the payments mentioned in section 196F (2)(e) of FA 2004 were payable to the partnership before the relevant change in relation to it occurred.
26
1
This paragraph applies if, apart from this Part of this Schedule, a relevant charging provision applies in relation to the asset-backed arrangement.
2
The relevant charging provision is to apply in relation to the asset-backed arrangement instead of paragraph 23 , 24 or 25 above (as the case may be) to the extent of any overlap.
3
In this paragraph “relevant charging provision” means —
a
section 809BZB, 809BZC, 809BZH or 809BZK of ITA 2007, or
b
section 759, 760, 765 or 768 of CTA 2010.
27
1
This paragraph applies if, apart from this Part of this Schedule —
a
a relevant interest provision applies in relation to the asset-backed arrangement, and
b
as a result of the application of the relevant interest provision in relation to the asset-backed arrangement, an amount is or may be treated as interest under that provision.
2
Without prejudice to the generality of paragraphs 23(3) and (4) , 24(3) and 25(2) , the amount is not to be treated as interest if the amount arises on or after 22 February 2012 but on or before the completion day.
3
In this paragraph “relevant interest provision” means —
a
section 809BZD, 809BZE, 809BZI or 809BZL of ITA 2007, or
b
section 761, 762, 766 or 769 of CTA 2010.
28
1
Section 196G of FA 2004 (as inserted by paragraph 1 above) does not apply in relation to E’s contribution (if it would otherwise do so) if the relevant event occurs on or after 22 February 2012.
2
Section 196H of FA 2004 (as inserted by paragraph 1 above) does not apply in relation to E’s contribution at all (if it would otherwise do so).
Adjustments
29
1
For the purposes of paragraphs 30 and 31 —
a
amount A is the total amount of relief given in respect of E’s contribution,
b
amount B is the total of the following amounts —
i
any amounts of income which are charged to tax by virtue of a relevant provision,
ii
any amounts brought into account in calculating income for tax purposes by virtue of a relevant provision (so far as not reflected in sub-paragraph (i) ), and
iii
any amounts stopped from being the subject of an income deduction by virtue of a relevant provision (so far as not reflected in sub-paragraph (i) or (ii) ), and
c
subject to sub-paragraph (9) , amount C is the amount of the payment mentioned in sub-paragraph (6) or (8) (as the case may be) so far as the payment —
i
is made under the asset-backed arrangement on the completion day,
ii
is not reflected in amount B,
iii
is not the subject of an income deduction, and
iv
is not a contribution paid by E under the relevant scheme but nevertheless becomes (directly or indirectly) part of the sums held for the purposes of the relevant scheme.
2
In sub-paragraph (1)(b) “relevant provision” means —
a
paragraph 23 , 24 or 25 above (as the case may be);
b
a relevant charging provision (as defined in paragraph 26 above) as applied in relation to the asset-backed arrangement for amounts arising on or before the completion day;
c
paragraph 27 above (if applicable).
3
No amount is to be included in amount B by virtue of sub-paragraph (2)(c) so far as it is reflected in an amount included in amount B by virtue of sub-paragraph (2)(a) or (b) .
4
In sub-paragraph (1) “income deduction” means a deduction to which any person is entitled —
a
in calculating income for tax purposes, or
b
from total income or total profits.
5
Sub-paragraph (6) applies if the section which would have applied as mentioned in paragraph 18(1)(d) above is section 196B of FA 2004.
6
The payment referred to in sub-paragraph (1)(c) is the payment (if any) which the borrower, or a person connected with the borrower, makes to the lender, or a person connected with the lender, in order to acquire —
a
the security, or
b
any asset substituted for the security under the asset-backed arrangement.
7
Sub-paragraph (8) applies if the section which would have applied as mentioned in paragraph 18(1)(d) above is section 196D or 196F of FA 2004.
8
The payment referred to in sub-paragraph (1)(c) is the payment (if any) which E, or a person connected with E, makes to the lender, or a person connected with the lender, in order to reverse the relevant change in relation to the partnership.
9
Amount C is to be taken to be nil if —
a
on or before the completion day, a commitment (whether or not legally enforceable and whether or not subject to any conditions) is given (directly or indirectly) to a relevant person, and
b
the commitment —
i
is a commitment to secure that a person receives money or another asset, and
ii
is linked (directly or indirectly) to the making of the payment covered by amount C.
10
In sub-paragraph (9)(a) “relevant person” means —
a
E;
b
a person connected with E;
c
a person acting (directly or indirectly) at the direction or request, or with the agreement, of E or a person connected with E;
d
a person chosen (directly or indirectly) by E or a person connected with E;
e
a person within a class of person chosen (directly or indirectly) by E or a person connected with E;
f
a partnership.
11
But “relevant person” does not include —
a
the persons who from time to time are the trustees of the relevant scheme, or
b
the persons who from time to time are the persons controlling the management of the relevant scheme,
in their capacity as such.
30
1
This paragraph applies if amount A exceeds the sum of amounts B and C.
2
The amount of the excess is treated as follows as relevant —
a
for corporation tax purposes, the amount is treated as if it were a profit which E has in respect of E’s loan relationships chargeable to corporation tax under section 299 of CTA 2009 for E’s accounting period in which the beginning of the completion day falls, or
b
for income tax purposes, the amount is treated as if it were an amount of income of E chargeable to income tax under Chapter 8 of Part 5 of ITTOIA 2005 for the tax year in which the beginning of the completion day falls.
31
If the sum of amounts B and C exceeds amount A —
a
E is to be treated as having paid a contribution under the relevant scheme in respect of any individual of an amount equal to the excess,
b
the contribution is to be treated as having been paid at the beginning of the completion day, and
c
E is to be given relief as provided for by section 196 of FA 2004 accordingly.
PART 5
Other provision relating to finance arrangements
Chapter 5B of Part 13 of ITA 2007
32
Chapter 5B of Part 13 of ITA 2007 (finance arrangements) is amended as follows.
33
In section 809BZA (type 1 finance arrangements: definition) after subsection (2) insert —
2A
For the purposes of subsection (2)(c) it does not matter if an entitlement of the lender or a person connected with the lender is subject to any condition.
34
1
Section 809BZF (type 2 finance arrangements: definition) is amended as follows.
2
In subsection (2)(b) after “transferor” insert “or a person connected with the transferor”.
3
After subsection (2) insert —
2A
For the purposes of subsection (2)(e) it does not matter if any determination of the share in the partnership’s profits of the person involved in the relevant change as mentioned is subject to any condition.
35
In section 809BZH (type 2 finance arrangements: certain tax consequences not to have effect) after “transferor” (wherever occurring) insert “or the person connected with the transferor”.
36
In section 809BZJ (type 3 finance arrangements: definition) after subsection (2) insert —
2A
For the purposes of subsection (2)(d) it does not matter if any determination of the share in the partnership’s profits of the person involved in the relevant change as mentioned is subject to any condition.
Chapter 2 of Part 16 of CTA 2010
37
Chapter 2 of Part 16 of CTA 2010 (finance arrangements) is amended as follows.
38
In section 758 (type 1 finance arrangements: definition) after subsection (2) insert —
2A
For the purposes of subsection (2)(c) it does not matter if an entitlement of the lender or a person connected with the lender is subject to any condition.
39
1
Section 763 (type 2 finance arrangements: definition) is amended as follows.
2
In subsection (2)(b) after “transferor” insert “or a person connected with the transferor”.
3
After subsection (2) insert —
2A
For the purposes of subsection (2)(e) it does not matter if any determination of the share in the partnership’s profits of the person involved in the relevant change as mentioned is subject to any condition.
40
In section 765 (type 2 finance arrangements: certain tax consequences not to have effect) after “transferor” (wherever occurring) insert “or the person connected with the transferor”.
41
In section 767 (type 3 finance arrangements: definition) after subsection (2) insert —
2A
For the purposes of subsection (2)(d) it does not matter if any determination of the share in the partnership’s profits of the person involved in the relevant change as mentioned is subject to any condition.
Commencement
42
1
Subject to what follows, the amendments made by paragraphs 32 to 41 above have effect in relation to arrangements whenever made.
2
In relation to arrangements made before 21 March 2012, an amount is by virtue of the amendments —
a
to be charged to tax, or
b
to be brought into account in calculating any income for tax purposes or deducted from any income for tax purposes,
only if the amount arises on or after 21 March 2012.
3
The amendments have no effect for the purposes of section 196J (4) of FA 2004 inserted by paragraph 1 above.
4
The amendments have no effect for the purposes of section 196C (2)(b) , 196E (2)(b) or 196G (2)(b) of FA 2004 inserted by paragraph 15 above if the asset-backed arrangement is made before 21 March 2012.
SCHEDULE 14
Gifts to the nation
Section 49
PART 1
Introduction
Qualifying gifts
1
1
For the purposes of this Schedule, a person makes a “qualifying gift” if the person makes a gift in the circumstances described in sub-paragraph (2).
2
The circumstances are —
a
the person offers to give pre-eminent property to be held for the benefit of the public or the nation,
b
the person is legally and beneficially entitled to the property and the property is not owned jointly (or in common) with others,
c
the offer is made in accordance with a scheme set up by the Secretary of State for the purposes of this Schedule,
d
the offer is registered in accordance with the scheme,
e
the offer, or a part of the offer, is accepted in accordance with the scheme, and
f
the gift is made pursuant to the offer, or the part of the offer, accepted.
3
In this Schedule —
a
“the agreed terms” means the terms on which acceptance is agreed, as recorded in the manner prescribed by the scheme, and
b
“the offer registration date” means the date when the offer was registered in accordance with the scheme.
PART 2
Income tax and capital gains tax
Taxes affected
2
1
This Part applies to an individual’s liability to income tax and capital gains tax.
2
It does not apply to any liability arising as a trustee or personal representative.
3
Subject to sub-paragraph (2) —
a
a reference in this Part to an individual’s “tax liability” is to the individual’s liability to income tax and capital gains tax, and
b
references to an amount of or on account of “tax” are to be read accordingly.
The basic rule
3
1
If an individual (“N”) makes a qualifying gift, a portion of N’s tax liability for each relevant tax year is to be treated as satisfied, as if N had paid that portion when it became due (or on the offer registration date, if the portion became due before that date).
2
A “relevant tax year” is a tax year identified in the agreed terms as a tax year to which this paragraph is to apply.
3
Up to 5 tax years may be identified in the agreed terms, but each one must be either —
a
the tax year in which the offer registration date falls, or
b
one of the 4 tax years following that tax year.
The portion treated as satisfied
4
1
The portion of N’s tax liability for a relevant tax year that is to be treated as satisfied is an amount equal to the smaller of —
a
the tax reduction figure allocated to that tax year, and
b
the amount of N’s tax liability for that tax year less any portion of that amount that is treated as satisfied in consequence of any qualifying gift made by N on a previous occasion.
2
The amount determined under sub-paragraph (1) may be nil.
3
The tax reduction figure allocated to a tax year is such part of the total tax reduction figure as is expressed in the agreed terms to be allocated to that tax year.
4
The figures allocated to the relevant tax years must in total add up to no more than the total tax reduction figure.
5
“The total tax reduction figure” is 30% of the value set out in the agreed terms as the agreed value of the property forming the subject of the qualifying gift.
6
The Treasury may by order substitute a different percentage for the percentage specified for the time being in sub-paragraph (5).
Order in which benefit is applied
5
1
If the tax reduction figure allocated to a relevant tax year is less than the amount determined under paragraph 4(1)(b) for that tax year, the benefit of paragraph 3(1) is to be applied to N’s tax liability in the order specified in the agreed terms.
2
If no order is specified, the order is —
a
first, to N’s liability to income tax for that year, and
b
then, to N’s liability to capital gains tax for that year.
Effect of basic rule on interest and penalties
6
1
This paragraph explains the effect of paragraph 3(1) as regards late payment interest and late payment penalties.
2
The effect is that liability to pay amounts specified in sub-paragraph (3) ceases when the qualifying gift is made, as if the liability had never arisen.
3
The amounts are —
a
any late payment interest that accrued on the relevant portion during the negotiation period, and
b
any late payment penalty to which N became liable in the negotiation period for failing to pay the relevant portion (together with any interest on such a penalty).
4
“The relevant portion” is the portion of N’s tax liability for a relevant tax year that is treated under paragraph 3 as satisfied.
5
In determining for the purposes of sub-paragraph (2) whether or to what extent —
a
late payment interest accruing on an amount of or on account of N’s tax liability for the relevant tax year is attributable to the relevant portion, or
b
a late payment penalty incurred for failing to pay an amount of or on account of N’s tax liability for the relevant tax year is attributable to the relevant portion,
any attribution or apportionment is to be done in the way that maximises the relief obtained by N by virtue of this paragraph.
6
“The negotiation period” is the period —
a
beginning with the offer registration date, and
b
ending with the day on which the qualifying gift is made.
7
Nothing in this paragraph affects any late payment interest that accrued, or any late payment penalty to which N became liable, before the offer registration date.
Changes to N’s tax liability
7
1
If the amount of N’s tax liability for a relevant tax year is revised at any time, the portion of that liability that is treated under paragraph 3(1) as satisfied is to be re-calculated.
2
But nothing in this paragraph permits any revision of the agreed terms.
Gifts set aside etc
8
If a qualifying gift is set aside or declared void after it is made —
a
the portion of N’s tax liability for each relevant tax year that is treated as satisfied ceases to be treated as satisfied,
b
the effect described in paragraph 6 is negated, and
c
N is required to pay the portion due for each relevant tax year, together with any late payment interest and late payment penalties in respect of it, by the later of —
i
the end of the period of 30 days beginning with the day on which the gift was set aside or declared void, and
ii
the day by which N would have been required to pay those amounts but for this Schedule.
Suspension pending negotiations
9
1
An individual who makes an offer in the circumstances described in paragraph 1 (a “potential donor”) may make a request under this paragraph if —
a
the offer is registered in accordance with the scheme,
b
the offer includes a proposal (“the donor proposal”) of what should be in the agreed terms,
c
the potential donor will be required to pay an amount of or on account of tax for a relevant tax year by a certain date, and
d
the negotiations are not expected to conclude before that date (referred to as “the due date”).
2
For the purposes of this paragraph, the negotiations “conclude” when —
a
a qualifying gift is made pursuant to the offer,
b
the offer is withdrawn by the potential donor, or
c
the offer is rejected.
3
A request under this paragraph is a request that the potential donor’s obligation to pay the amount by the due date be suspended until the negotiations conclude.
4
But the running total of amounts for which suspension may be requested under this paragraph in respect of the same offer and the same relevant tax year must not exceed the proposed tax reduction figure for that tax year.
5
“The proposed tax reduction figure” for a tax year is the amount shown in the donor proposal as the proposed tax reduction figure for that year.
6
A request under this paragraph —
a
must be made in writing to HMRC at least 45 days before the due date, and
b
must be accompanied by a copy of the donor proposal and such other information as an officer of Revenue and Customs may reasonably require.
7
In considering whether or to what extent to agree to a request, HMRC must have regard to all the circumstances of the case (including, for example, the creditworthiness of the potential donor).
8
HMRC may impose conditions with respect to the suspension.
10
1
Suspension under paragraph 9 of a potential donor’s obligation to pay an amount of or on account of tax stops the donor from becoming liable to late payment penalties for or in connection with the failure to pay that amount by the due date.
2
But it does not stop late payment interest from accruing on that amount from the due date.
3
HMRC may by notice in writing to the potential donor withdraw its agreement to the suspension with effect from such date, before conclusion of the negotiations, as may be specified in the notice.
4
If it does so, the potential donor must pay the amount, together with any late payment interest that has accrued on it since the due date, by the end of the period of 30 days beginning with the date specified in the notice.
5
The last day of that 30-day period is to be treated for the purposes of any enactment relating to late payment penalties as the date on or before which the amount must be paid.
6
Paragraph 11 explains what happens once the negotiations conclude (depending on the outcome of the negotiations).
Conclusion of negotiations
11
1
This paragraph applies if a potential donor’s obligation to pay an amount of or on account of tax remains suspended under paragraph 9 when the negotiations conclude (within the meaning of that paragraph).
2
The potential donor must pay the amount, together with any late payment interest that has accrued on it since the due date, within the period of 30 days beginning with the day on which the negotiations concluded.
3
The last day of that 30-day period is to be treated for the purposes of any enactment relating to late payment penalties as the date on or before which the amount must be paid.
4
But if the negotiations conclude because a qualifying gift is made pursuant to the offer or a part of the offer —
a
sub-paragraph (2) is to be read subject to paragraph 3(1) (and its effect as described in paragraph 6), and
b
accordingly, the potential donor is only required to pay so much as is not treated as satisfied under paragraph 3(1).
5
If the negotiations conclude in relation to a part only of the offer —
a
this paragraph is to be given effect as far as reasonably practicable in relation to that part, and
b
on receipt of a revised copy of the donor proposal, HMRC may give effect to paragraph 9 in relation to the part of the offer that remains under negotiation.
PART 3
Corporation tax
Taxes affected
12
1
This Part applies to a company’s liability to corporation tax.
2
A reference in this Part to a company’s “tax liability” is to the company’s liability to corporation tax.
3
References to an amount of or on account of “tax” are to be read accordingly.
The basic rule
13
1
If a company (“C”) makes a qualifying gift, a portion of C’s tax liability for the relevant accounting period is to be treated as satisfied, as if C had paid that portion when it became due (or on the offer registration date, if the portion became due before that date).
2
“The relevant accounting period” is the accounting period of C’s in which the offer registration date falls.
The portion treated as satisfied
14
1
The portion of C’s tax liability for the relevant accounting period that is to be treated as satisfied is an amount equal to the smaller of —
a
the tax reduction figure, and
b
the amount of C’s tax liability for that period less any portion of that amount that is treated as satisfied in consequence of any qualifying gift made by C on a previous occasion.
2
The amount determined under sub-paragraph (1) may be nil.
3
The tax reduction figure is —
a
20% of the value set out in the agreed terms as the agreed value of the property forming the subject of the qualifying gift, or
b
such lower figure as may be specified in the agreed terms as the tax reduction figure.
4
The Treasury may by order substitute a different percentage for the percentage specified for the time being in sub-paragraph (3)(a).
Effect of basic rule on interest and penalties
15
1
This paragraph explains the effect of paragraph 13 as regards late payment interest and late payment penalties.
2
The effect is that liability to pay amounts specified in sub-paragraph (3) ceases when the qualifying gift is made, as if the liability had never arisen.
3
The amounts are —
a
any late payment interest that accrued on the relevant portion during the negotiation period, and
b
any late payment penalty to which C became liable in the negotiation period for failing to pay the relevant portion (together with any interest on such a penalty).
4
“The relevant portion” is the portion of C’s tax liability for the relevant accounting period that is treated under paragraph 13 as satisfied.
5
In determining for the purposes of sub-paragraph (2) whether or to what extent —
a
late payment interest accruing on an amount of or on account of C’s tax liability for the relevant accounting period is attributable to the relevant portion, or
b
a late payment penalty incurred for failing to pay an amount of or on account of C’s tax liability for the relevant accounting period is attributable to the relevant portion,
any attribution or apportionment is to be done in the way that maximises the relief obtained by C by virtue of this paragraph.
6
“The negotiation period” is the period —
a
beginning with the offer registration date, and
b
ending with the day on which the qualifying gift is made.
7
Nothing in this paragraph affects any late payment interest that accrued, or any late payment penalty to which C became liable, before the offer registration date.
Changes to C’s tax liability
16
1
If the amount of C’s tax liability for the relevant accounting period is revised at any time, the portion of that liability that is treated under paragraph 13 as satisfied is to be re-calculated.
2
But nothing in this paragraph permits any revision of the agreed terms.
Gifts set aside etc
17
If a qualifying gift is set aside or declared void after it is made —
a
the portion of C’s tax liability for the relevant accounting period treated as satisfied ceases to be treated as satisfied,
b
the effect described in paragraph 15 is negated, and
c
C is required to pay the portion due, together with any late payment interest and late payment penalties in respect of it, by the later of —
i
the end of the period of 30 days beginning with the day on which the gift was set aside or declared void, and
ii
the day by which C would have been required to pay those amounts but for this Schedule.
Suspension pending negotiations
18
1
A company that makes an offer in the circumstances described in paragraph 1 (a “potential donor”) may make a request under this paragraph if —
a
the offer is registered in accordance with the scheme,
b
the offer includes a proposal (“the donor proposal”) of what should be in the agreed terms,
c
the potential donor will be required to pay an amount of or on account of tax for the relevant accounting period by a certain date, and
d
the negotiations are not expected to conclude before that date (referred to as “the due date”).
2
For the purposes of this paragraph, the negotiations “conclude” when —
a
a qualifying gift is made pursuant to the offer,
b
the offer is withdrawn by the potential donor, or
c
the offer is rejected.
3
A request under this paragraph is a request that the potential donor’s obligation to pay the amount by the due date be suspended until the negotiations conclude.
4
But the running total of amounts for which suspension may be requested under this paragraph in respect of the same offer must not exceed the proposed tax reduction figure.
5
“The proposed tax reduction figure” is the amount shown in the donor proposal as the proposed tax reduction figure.
6
A request under this paragraph —
a
must be made in writing to HMRC at least 45 days before the due date, and
b
must be accompanied by a copy of the donor proposal and such other information as an officer of Revenue and Customs may reasonably require.
7
In considering whether or to what extent to agree to a request, HMRC must have regard to all the circumstances of the case (including, for example, the creditworthiness of the potential donor).
8
HMRC may impose conditions with respect to the suspension.
19
1
Suspension under paragraph 18 of a potential donor’s obligation to pay an amount of or on account of tax stops the donor from becoming liable to late payment penalties for or in connection with the failure to pay that amount by the due date.
2
But it does not stop late payment interest from accruing on that amount from the due date.
3
HMRC may by notice in writing to the potential donor withdraw its agreement to the suspension with effect from such date, before conclusion of the negotiations, as may be specified in the notice.
4
If it does so, the potential donor must pay the amount, together with any late payment interest that has accrued on it since the due date, by the end of the period of 30 days beginning with the date specified in the notice.
5
The last day of that 30-day period is to be treated for the purposes of any enactment relating to late payment penalties as the date on or before which the amount must be paid.
6
Paragraph 20 explains what happens once the negotiations conclude (depending on the outcome of the negotiations).
Conclusion of negotiations
20
1
This paragraph applies if a potential donor’s obligation to pay an amount of or on account of tax remains suspended under paragraph 18 when the negotiations conclude (within the meaning of that paragraph).
2
The potential donor must pay the amount, together with any late payment interest that has accrued on it since the due date, within the period of 30 days beginning with the day on which the negotiations concluded.
3
The last day of that 30-day period is to be treated for the purposes of any enactment relating to late payment penalties as the date on or before which the amount must be paid.
4
But if the negotiations conclude because a qualifying gift is made pursuant to the offer or a part of the offer —
a
sub-paragraph (2) is to be read subject to paragraph 13 (and its effect as described in paragraph 15), and
b
accordingly, the potential donor is only required to pay so much as is not treated as satisfied under paragraph 13.
5
If the negotiations conclude in relation to a part only of the offer —
a
this paragraph is to be given effect as far as reasonably practicable in relation to that part, and
b
on receipt of a revised copy of the donor proposal, HMRC may give effect to paragraph 18 in relation to the part of the offer that remains under negotiation.
PART 4
General provision
Orders
21
1
An order under Part 2 or 3 of this Schedule is to be made by statutory instrument.
2
It may include transitional and saving provisions.
3
A statutory instrument containing an order under Part 2 or 3 of this Schedule is subject to annulment in pursuance of a resolution of the House of Commons.
Pre-eminent property
22
1
In this Schedule, “pre-eminent property” means —
a
any picture, print, book, manuscript, work of art, scientific object or other thing that the relevant Minister is satisfied is pre-eminent for its national, scientific, historic or artistic interest,
b
any collection or group of pictures, prints, books, manuscripts, works of art, scientific objects or other things if the relevant Minister is satisfied that the collection or group, taken as a whole, is pre-eminent for its national, scientific, historic or artistic interest, or
c
any object that is or has been kept in a significant building if it appears to the relevant Minister desirable for the object to remain associated with the building.
2
A “significant building” is any building falling within section 230(3)(a) to (d) of IHTA 1984 (acceptance of property in lieu of tax).
3
“National interest” includes interest within any part of the United Kingdom.
4
In determining whether an object or collection or group of objects is pre-eminent, regard is to be had to any significant association of the object, collection or group with a particular place.
The relevant Minister
23
1
For the purposes of paragraph 22, “the relevant Minister” is —
a
for items with a purely Scottish interest, the Scottish Ministers,
b
for items with some Scottish interest but with no Northern Irish interest and no Welsh interest, the Secretary of State and the Scottish Ministers concurrently,
c
for items with a purely Northern Irish interest, the Northern Ireland Department of Culture, Arts and Leisure,
d
for items with some Northern Irish interest but with no Scottish interest and no Welsh interest, the Secretary of State and the Northern Ireland Department of Culture, Arts and Leisure concurrently,
e
for items with a purely Welsh interest, the Welsh Ministers,
f
for items with some Welsh interest but with no Scottish interest and no Northern Irish interest, the Secretary of State and the Welsh Ministers concurrently, and
g
for any other items, the Secretary of State.
2
If an item within sub-paragraph (1)(g) has more than one devolved interest, the Secretary of State must consult the appropriate Minister for each such interest before making a decision under paragraph 22 affecting the item.
3
An item has a purely Scottish interest if —
a
it is located in Scotland, and
b
the offer contains —
i
no wish about where the item is to be displayed, or
ii
a wish that it is to be displayed in Scotland.
4
An item has some Scottish interest if it does not have a purely Scottish interest but —
a
it is located in Scotland, or
b
the offer contains a wish that it is to be displayed in Scotland.
5
An item has no Scottish interest if it does not have a purely Scottish interest and it does not have some Scottish interest.
6
References to items with a purely Northern Irish or purely Welsh interest, to items with some Northern Irish or some Welsh interest and to items with no Northern Irish interest or no Welsh interest are to be read in accordance with sub-paragraphs (3) to (5), but replacing references to Scotland with references to Northern Ireland or, as the case may be, Wales.
7
A “devolved interest” is some Scottish interest, some Northern Irish interest or some Welsh interest.
8
“The appropriate Minister” is —
a
if the item has some Scottish interest, the Scottish Ministers,
b
if the item has some Northern Irish interest, the Northern Ireland Department of Culture, Arts and Leisure, and
c
if the item has some Welsh interest, the Welsh Ministers.
9
“Item” means an object or collection or group of objects.
General interpretation
24
In this Schedule —
“the Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs;
“company” has the meaning given in section 992 of ITA 2007;
“corporation tax” includes any amount assessable or chargeable as if it were corporation tax;
“HMRC” means Her Majesty’s Revenue and Customs;
“late payment interest” means interest under section 101 of FA 2009, or under or by virtue of Part 9 of TMA 1970, on amounts payable to HMRC;
“late payment penalty” means a penalty under Schedule 56 to FA 2009.
25
Nothing in this Schedule is to give rise to any right or expectation that an offer made as mentioned in paragraph 1 will be accepted.
PART 5
Related changes
IHTA 1984
26
IHTA 1984 is amended as follows.
27
In section 25 (gifts for national purposes etc), after subsection (2) insert —
3
A transfer of value is an exempt transfer to the extent that the value transferred by it is attributable to property that is being transferred in the circumstances described in paragraph 1 of Schedule 14 to the Finance Act 2012 (gifts to the nation).
28
In section 26A (potentially exempt transfer of property subsequently held for national purposes etc), in paragraph (b), after “below” insert “or in the circumstances described in paragraph 1 of Schedule 14 to the Finance Act 2012 (gifts to the nation)”.
29
1
Section 32 (conditionally exempt transfers: chargeable events) is amended as follows.
2
In subsection (3), for “subsections (4) and (5)” substitute “subsections (4), (4A) and (5)”.
3
After subsection (4) insert —
4A
A death or disposal is not a chargeable event with respect to any property if —
a
in the case of a death, a person who became beneficially entitled to the property on the death disposes of it in the circumstances described in paragraph 1 of Schedule 14 to the Finance Act 2012 (gifts to the nation) within 3 years of the death, or
b
in the case of a disposal, the disposal is made in the circumstances described in paragraph 1 of that Schedule,
and a death or disposal of the property after such a disposal as is mentioned in paragraph (a) or (b) is not a chargeable event with respect to the property unless there has again been a conditionally exempt transfer of it after that disposal.
30
1
Section 32A (associated properties) is amended as follows.
2
After subsection (5) insert —
5A
The death of a person beneficially entitled to property, or the disposal of property, is not a chargeable event if —
a
in the case of a death, a person who became beneficially entitled to the property on the death disposes of it in the circumstances described in paragraph 1 of Schedule 14 to the Finance Act 2012 (gifts to the nation) within 3 years of the death, or
b
in the case of a disposal, the disposal is made in the circumstances described in paragraph 1 of that Schedule.
3
In subsection (7), after “(5)(a) or (b)” insert “or (5A)(a) or (b)”.
31
In section 33 (amount of charge under section 32), in subsection (6) —
a
for “section 32(4)” substitute “section 32(4) or (4A)”, and
b
for “section 32A(5)”, in both places it appears, substitute “section 32A(5) or (5A)”.
32
In section 34 (reinstatement of transferor’s cumulative total), in subsection (4) —
a
for “section 32(4)” substitute “section 32(4) or (4A)”, and
b
for “section 32A(5)”, in both places it appears, substitute “section 32A(5) or (5A)”.
Estate duty etc
33
1
This paragraph applies if a person makes a qualifying gift and as a result —
a
estate duty becomes chargeable under section 40 of FA 1930 (exemption from death duties of objects of national etc interest), or
b
tax becomes chargeable under Schedule 5 to IHTA 1984 (conditional exemption: deaths before 7 April 1976).
2
Despite any other enactment, the amount of duty or tax that becomes so chargeable as a result of the gift is to be limited to the amount (if any) by which A exceeds B.
3
For these purposes —
“A” is the amount of duty or tax that becomes so chargeable as a result of the gift (absent this paragraph), and
“B” is what that amount would be if the effective rate at which the duty or tax is charged were the highest rate specified in column 3 of the Table in Schedule 1 to IHTA 1984.
4
References in this paragraph to the amount of duty or tax that becomes so chargeable are to the amount before applying any credit allowable against it under section 33(7) of IHTA 1984.
5
Nothing in this paragraph entitles a person to any repayment of inheritance tax if the amount of any such credit exceeds the amount (if any) chargeable in accordance with sub-paragraph (2).
6
In the application of this paragraph to Northern Ireland, for the reference to section 40 of FA 1930 substitute a reference to section 2 of the Finance Act (Northern Ireland) 1931.
TCGA 1992
34
In section 258 of TCGA 1992 (works of art etc), before subsection (2) insert —
1A
A gain is not a chargeable gain if it accrues on a disposal made in the circumstances described in paragraph 1 of Schedule 14 to the Finance Act 2012 (gifts to the nation).
ITA 2007
35
In Chapter A1 of Part 14 of ITA 2007 (income tax: remittance basis), after section 809YD (inserted by Schedule 12 to this Act) insert —
Exception to section 809Y: gifts to the nation
809YE
1
Section 809Y(1) does not apply to property if —
a
it ceases to be exempt property in the second case mentioned in that section, and
b
by no later than the time when it ceases to be exempt property, it has been donated in the circumstances described in paragraph 1 of Schedule 14 to FA 2012 (gifts to the nation).
2
Where section 809Y(1) does not apply to property by virtue of this section, the property is to continue to be treated as not remitted to the United Kingdom even though it no longer meets any of the relevant rules.
PART 6
Commencement
36
1
Parts 2 and 3 of this Schedule have effect in relation to liabilities for tax years and accounting periods beginning on or after such day as the Treasury may by order appoint.
2
The power of the Treasury under sub-paragraph (1) includes power to appoint a day that is earlier than the day on which the order is made, but no earlier than 1 April 2012.
3
An order under this paragraph is to be made by statutory instrument.
SCHEDULE 15
Relief in respect of gift aid and other income
Section 51
Claims by charitable trusts etc
1
1
In Part 10 of ITA 2007 (special rules about charitable trusts etc), section 538A (claims in relation to gift aid relief) is amended as follows.
2
Before subsection (1) insert —
A1
This section applies to claims for —
a
repayment of income tax treated as having been paid by virtue of section 520(4) (gift aid relief: income tax treated as paid by trustees of charitable trust), or
b
repayment of income tax deducted at source from income to which any of the following applies —
i
section 532 (exemption for savings and investment income),
ii
section 533 (exemption for public revenue dividends),
iii
section 536 (exemption for certain miscellaneous income), or
iv
section 537 (exemption for income from estates in administration).
3
In subsection (1) —
a
before “applies” insert “also”, and
b
for the words after “tax” substitute
by virtue of —
a
section 521(4) (gifts entitling donor to gift aid relief: charitable trusts), or
b
any of the provisions mentioned in subsection (A1)(b).
4
Accordingly, in the heading, after “ relief ” insert “ etc ”.
Claims by charitable companies etc
2
Part 11 of CTA 2010 (charitable companies etc) is amended as follows.
3
1
In Chapter 2 (gifts and other payments), section 477A (claims in relation to gift aid relief) is amended as follows.
2
Before subsection (1) insert —
A1
This section applies to claims for repayment of income tax treated as having been paid by virtue of —
a
section 471 (gifts qualifying for gift aid relief: charitable companies), or
b
section 475 (gifts qualifying for gift aid relief: eligible bodies).
3
In subsection (1), before “applies” insert “also”.
4
In Chapter 3 (other exemptions), after section 491 insert —
Claims
Claims in relation to certain reliefs
491A
1
Subsections (2) to (5) of section 477A (claims in relation to gift aid relief) apply to —
a
claims for amounts to be exempt from tax by virtue of a provision listed in subsection (2), and
b
claims for repayment of income tax deducted at source from income which is exempt from tax by virtue of such a provision,
as they apply to claims to which that section applies.
2
The provisions are —
a
section 486 (investment income and non-trading profits from loan relationships),
b
section 487 (public revenue dividends),
c
section 488 (certain miscellaneous income), and
d
section 489 (income from estates in administration).
Community amateur sports clubs: gift aid and other income
5
Chapter 9 of Part 13 of CTA 2010 (special types of company etc: community amateur sports clubs) is amended as follows.
6
After section 661C insert —
Gifts qualifying for gift aid relief
Tax treatment of gifts qualifying for gift aid relief
661D
1
This section applies if a gift is made to a registered club by an individual and the gift is a qualifying donation for the purposes of Chapter 2 of Part 8 of ITA 2007 (gift aid).
2
The club is treated as receiving, under deduction of income tax at the basic rate for the tax year in which the gift is made, a gift of an amount equal to the grossed up amount of the gift.
3
The income tax treated as deducted is treated as income tax paid by the club.
4
The grossed up amount of the gift is treated as an amount in respect of which the club is chargeable to corporation tax, under the charge to corporation tax on income.
But this is subject to section 664 (exemption for interest and gift aid income).
5
References in this section to the grossed up amount of the gift are to the amount of the gift grossed up by reference to the basic rate for the tax year in which the gift is made.
7
After section 665 insert —
Claims
Claims in relation to interest and gift aid income
665A
1
This section applies to —
a
claims for repayment of income tax treated as having been paid by virtue of section 661D (tax treatment of gifts qualifying for gift aid relief),
b
claims for amounts to be exempt from tax by virtue of section 664 (exemption for interest and gift aid income), and
c
claims for repayment of income tax deducted at source from interest income (within the meaning of that section) which is exempt from tax by virtue of that section.
2
A claim to which this section applies may be made —
a
to an officer of Revenue and Customs, or
b
by being included in the claimant’s company tax return.
3
In this section —
“free-standing claim” means a claim made as mentioned in subsection (2)(a), and
“tax return claim” means a claim made as mentioned in subsection (2)(b).
4
The Commissioners for Her Majesty’s Revenue and Customs may by regulations make provision —
a
limiting the number of free-standing claims that may be made by a person in a tax year, or
b
requiring a claim for an amount below an amount specified in the regulations to be made as a tax return claim.
5
The regulations may make different provision for different cases or purposes.
8
In consequence of the provision made by paragraph 6, in section 413 of ITA 2007 (overview of gift aid relief), after subsection (5) insert —
6
For related reliefs for community amateur sports clubs see Chapter 9 of Part 13 of CTA 2010.
Treatment of income tax deducted or repaid
9
In section 59B of TMA 1970 (payment of income tax and capital gains tax), in subsection (7), at the end insert —
But such a reference does not include income tax repaid on a claim for repayment of income tax which —
a
is treated as having been paid by virtue of section 520(4) of ITA 2007 (gift aid relief: income tax treated as paid by trustees of charitable trust), or
b
has been deducted at source from income to which section 532, 533, 536 or 537 of that Act (certain sources of income exempt from income tax) applies.
10
1
Section 967 of CTA 2010 (set-off of income tax deductions against corporation tax: payments received by UK resident companies) is amended as follows.
2
After subsection (4) insert —
5
The reference in subsection (1) to a payment received by a company does not include a reference to a payment which is exempt from tax by virtue of any of the following —
section 472 (gifts qualifying for gift aid relief: charitable companies);
section 475 (gifts qualifying for gift aid relief: eligible bodies);
section 664 (exemption for interest and gift aid income: community amateur sports clubs).
3
In subsection (5) (as inserted by sub-paragraph (2)), after the entry for section 475 insert —
section 486 (investment income and non-trading profits from loan relationships);
section 487 (public revenue dividends);
section 488 (certain miscellaneous income);
section 489 (income from estates in administration);
.
Administration of claims under ITA 2007
11
1
Section 42 of TMA 1970 (procedure for making claims etc) is amended as follows.
2
In subsection (2), for “and (3ZA)” substitute “to (3ZB)”.
3
In subsection (3ZA), for the words from “by virtue of” to the end substitute
by virtue of —
a
section 521(4) of ITA 2007 (gifts entitling donor to gift aid relief: charitable trusts),
b
section 532 of that Act (exemption for savings and investment income),
c
section 533 of that Act (exemption for public revenue dividends),
d
section 536 of that Act (exemption for certain miscellaneous income), or
e
section 537 of that Act (exemption for income from estates in administration).
4
After subsection (3ZA) insert —
3ZB
Subsection (2) also does not apply in relation to any claim for repayment of an amount of income tax which —
a
is treated as having been paid by virtue of section 520(4) of ITA 2007 (gift aid relief: income tax treated as paid by trustees of charitable trust), or
b
has been deducted at source from income to which any of the provisions mentioned in paragraphs (b) to (e) of subsection (3ZA) applies.
12
In consequence of the amendments made by paragraph 11, in Schedule 8 to FA 2010 omit paragraph 4(2).
Administration of claims under CTA 2010
13
Schedule 18 to FA 1998 (company tax returns, assessments and related matters) is amended as follows.
14
1
Paragraph 9 (claims that cannot be made without a return) is amended as follows.
2
In sub-paragraph (2), at the end insert —
This is subject to sub-paragraphs (2A) and (2B).
3
For sub-paragraph (2A) substitute —
2A
This paragraph does not apply to a claim by a company for repayment of income tax treated as having been paid by virtue of —
a
section 471 of the Corporation Tax Act 2010 (gifts qualifying for gift aid relief: charitable companies),
b
section 475 of that Act (gifts qualifying for gift aid relief: eligible bodies), or
c
section 661D of that Act (gifts qualifying for gift aid relief: community amateur sports clubs).
2B
This paragraph also does not apply to a claim by a company for repayment of income tax deducted at source from income which is exempt from tax by virtue of —
a
section 486 of the Corporation Tax Act 2010 (investment income and non-trading profits from loan relationships),
b
section 487 of that Act (public revenue dividends),
c
section 488 of that Act (certain miscellaneous income),
d
section 489 of that Act (income from estates in administration), or
e
section 664 of that Act (interest and gift aid income: community amateur sports clubs).
15
1
Paragraph 57 (claims or elections affecting a single accounting period) is amended as follows.
2
In sub-paragraph (1), at the end insert —
This is subject to sub-paragraphs (1A) to (1C).
3
For sub-paragraph (1A) substitute —
1A
This paragraph does not apply to a claim by a company for repayment of income tax treated as having been paid by virtue of —
a
section 471 of the Corporation Tax Act 2010 (gifts qualifying for gift aid relief: charitable companies),
b
section 475 of that Act (gifts qualifying for gift aid relief: eligible bodies), or
c
section 661D of that Act (gifts qualifying for gift aid relief: community amateur sports clubs).
1B
This paragraph also does not apply to a claim by a company for repayment of income tax deducted at source from income which is exempt from tax by virtue of —
a
section 486 of the Corporation Tax Act 2010 (investment income and non-trading profits from loan relationships),
b
section 487 of that Act (public revenue dividends),
c
section 488 of that Act (certain miscellaneous income),
d
section 489 of that Act (income from estates in administration), or
e
section 664 of that Act (interest and gift aid income: community amateur sports clubs).
1C
This paragraph also does not apply to a claim by a company for an amount to be exempt from tax by virtue of —
a
section 472 of the Corporation Tax Act 2010 (gifts qualifying for gift aid relief: charitable companies),
b
section 475 of that Act (gifts qualifying for gift aid relief: eligible bodies), or
c
any of the provisions mentioned in sub-paragraph (1B).
16
In consequence of the amendments made by paragraphs 14 and 15, in Schedule 8 to FA 2010 omit paragraph 6.
Application
17
1
The amendments made by paragraphs 1 to 4 and 7 are treated as having come into force on 8 April 2010.
2
The amendments made by paragraphs 6, 8 and 10 are treated as having effect —
a
for corporation tax purposes, for accounting periods ending on or after 1 April 2010, and
b
for income tax purposes, for the tax year 2010-11 and subsequent tax years.
3
The amendment made by paragraph 9 has effect in relation to income tax repaid on gifts made or income received on or after 6 April 2006.
Accordingly, any reference in that amendment to a provision of ITA 2007 is to be read as including a reference to any corresponding earlier enactment which was rewritten in that provision.
4
An amendment corresponding to that made by paragraph 10(2) is to be treated as having been made in ICTA and having had effect in relation to —
a
gifts made by individuals to charitable companies and eligible bodies on or after 6 April 2000 which were not covenanted payments,
b
covenanted payments falling to be made by individuals to charitable companies and eligible bodies on or after that date, and
c
payments made to community amateur sports clubs on or after 6 April 2002.
5
An amendment corresponding to that made by paragraph 10(3) is to be treated as having been made in ICTA and having had effect in relation to payments of income made on or after 1 April 2006.
6
The amendments made by paragraphs 11 to 16 have effect in relation to claims whenever made.
SCHEDULE 16
Part 2: minor and consequential amendments
Section 146
PART 1
Amendments of ICTA
1
ICTA is amended as follows.
2
Omit section 76 (expenses of insurance companies).
3
Omit section 76ZA (payments for restrictive undertakings).
4
Omit section 76ZB (seconded employees).
5
Omit sections 76ZC to 76ZE (counselling and retraining expenses).
6
Omit sections 76ZF to 76ZJ (redundancy payments etc).
7
Omit section 76ZK (contributions to local enterprise organisations or urban regeneration companies).
8
Omit sections 76ZL and 76ZM (unpaid remuneration).
9
Omit section 76ZN (car hire).
10
In section 95ZA(3) (taxation of UK distributions received by insurance companies), for “life assurance business” substitute “business in relation to which section 111 of the Finance Act 2012 applies”.
11
Omit section 431 (interpretative provisions relating to insurance companies).
12
Omit section 431ZA (election for assets not be foreign business assets).
13
Omit section 431A (amendment of Chapter etc).
14
Omit section 431B (meaning of “pension business”).
15
Omit section 431BA (meaning of “child trust fund business”).
16
Omit section 431BB (meaning of “individual savings account business”).
17
Omit section 431C (meaning of “life reinsurance business”).
18
Omit sections 431D and 431E (meaning of “overseas life assurance business” etc).
19
Omit section 431EA (meaning of “gross roll-up business”).
20
Omit section 431F (meaning of “basic life assurance and general annuity business”).
21
Omit section 431G (company carrying on life assurance business).
22
Omit section 431H (company carrying on life assurance business and other insurance business).
23
Omit section 432YA (PHI business — adjustment consequent of change in Insurance Prudential Sourcebook).
24
Omit section 432ZA (linked assets).
25
Omit section 432A (apportionment of income and gains).
26
Omit section 432AA (property businesses).
27
Omit section 432AB (losses from property businesses).
28
Omit sections 432B to 432G (apportionment of receipts brought into account).
29
Omit section 434 (franked investment income etc).
30
Omit section 434A (computation of losses and limitation on relief).
31
Omit sections 434AZA to 434AZC (reduced loss relief for additions to non-profit funds).
32
Omit section 436A (gross roll-up business: separate charge on profits).
33
Omit section 436B (gains referable to gross-roll up business not to be chargeable gains).
34
Omit sections 437 and 437A (general annuity business).
35
Omit section 438 (pension business: exemption from tax).
36
Omit section 440 (transfers of assets etc).
37
Omit section 440A (securities).
38
Omit section 440B (modifications where tax charged under s.35 of CTA 2009).
39
Omit section 440C (modifications for change of tax basis).
40
Omit section 440D (modifications in relation to BLAGAB group reinsurers).
41
Omit section 442 (overseas business of UK companies).
42
Omit section 442A (taxation of investment return where risk reinsured).
43
Omit sections 444A to 444AED (transfers of business).
44
Omit sections 444AF to 444AL (surpluses of mutual and former mutual businesses).
45
In Schedule 15 (qualifying policies), in paragraph 24(3)(a), for “section 431(2)” substitute “section 56 of the Finance Act 2012”.
46
Omit Schedule 19ABA (modifications in relation to BLAGAB group reinsurers).
PART 2
Amendments of FA 1989
47
FA 1989 is amended as follows.
48
In section 67(2) (employee share ownership trusts), for paragraph (b) (and the “or” before that paragraph) substitute —
b
if the company is an investment company, shall be treated as expenses of management, or
c
if the company is a company in relation to which the I - E rules apply and the sum is referable, in accordance with Chapter 4 of Part 2 of the Finance Act 2012, to the company’s basic life assurance and general annuity business, shall be treated for the purposes of section 76 of that Act as ordinary BLAGAB management expenses of the company.
49
Omit section 82 (calculation of profits: bonuses etc).
50
Omit section 82A (calculation of profits: policy holders’ tax).
51
Omit section 82B (unappropriated surplus on valuation).
52
Omit sections 82D to 82F (treatment of profits: life assurance — adjustment consequent on change in Insurance Prudential Sourcebook).
53
Omit section 83 (receipts to be taken into account).
54
Omit section 83XA (structural assets).
55
Omit sections 83YA and 83YB (changes in value of assets brought into account: non-profit companies).
56
Omit sections 83YC to 83YF (FAFTS).
57
Omit section 83A (meaning of “brought into account”).
58
Omit section 83B (changes in recognised accounts: attribution of amounts carried forward under s.432F of ICTA).
59
Omit section 85 (charge of certain receipts of basic life assurance business).
60
Omit section 85A (excess adjusted life assurance trade profits).
61
Omit section 86 (spreading of relief for acquisition expenses).
62
Omit section 88 (corporation tax: policy holders’ share of profits).
63
Omit section 89 (policy holders’ share of profits).
PART 3
Amendments of other Acts
Finance Act 1950
64
FA 1950 is amended as follows.
65
In section 39(3)(b)(ii) (treatment for taxation purposes of enemy debts etc written off during the war), for “an expenses deduction for the purposes of Step 1 of section 76(7) of the Income and Corporation Taxes Act 1988” substitute “ordinary BLAGAB management expenses for the purposes of section 76 of the Finance Act 2012”.
Taxes Management Act 1970
66
TMA 1970 is amended as follows.
67
1
Section 98 (special returns) is amended as follows.
2
In the first column of the Table —
a
omit the entry relating to regulations under section 431E(1) of ICTA, and
b
at the end insert —
regulations under section 61 (5) of the Finance Act 2012
.
3
In the second column of the Table —
a
omit the entry relating to section 76ZE(4) of ICTA,
b
omit the entry relating to regulations under section 431E(1) of ICTA, and
c
at the end insert —
regulations under section 61 (5) of the Finance Act 2012
.
Inheritance Tax Act 1984
68
IHTA 1984 is amended as follows.
69
In section 59(3)(b) (qualifying interest in possession), for “Chapter I of Part XII of the Taxes Act 1988” substitute “Part 2 of the Finance Act 2012”.
Finance Act 1991
70
FA 1991 is amended as follows.
71
In paragraph 16(1) of Schedule 7 (transitional relief for old general annuity contracts), for the words from “computation” to “1988” substitute “application of the I - E rules in relation to an accounting period of an insurance company, an amount equal to the lesser of the following amounts is to be treated (if it is not nil) for the purposes of section 76 of the Finance Act 2012 as a deemed BLAGAB management expense for the accounting period”.
Taxation of Chargeable Gains Act 1992
72
TCGA 1992 is amended as follows.
73
In section 10B (non-resident company with United Kingdom permanent establishment), after subsection (3) insert —
3A
This section applies to an overseas life insurance company in the case of its long-term business with the omission from subsection (1)(b) of the words “situated in the United Kingdom and”.
74
In section 100(2B)(a) (exemption for authorised unit trusts etc), for “section 431 of the Taxes Act” substitute “section 65 of the Finance Act 2012”.
75
In section 140C (transfer or division of non-UK business), omit subsection (8).
76
In section 151I(1) (meaning of “financial institution”) —
a
in paragraph (g), for “section 431(2) of ICTA” substitute “section 65 of the Finance Act 2012”, and
b
in paragraph (h), for “section 431(2) of ICTA” substitute “section 139 (1) of the Finance Act 2012”.
77
1
Section 171C (elections under s.171A: insurance companies) is amended as follows.
2
In subsection (2), for “section 440(3) of the Taxes Act” substitute “section 118 of the Finance Act 2012”.
3
In subsection (3)(b), for “part of that company’s long-term insurance fund” substitute “held for the purposes of the company’s long-term business”.
4
In subsection (4), for the words from “as arising” to the end substitute “for the purposes of section 210A (ring-fencing of losses) as a non-BLAGAB chargeable gain or (as the case may be) a non-BLAGAB allowable loss”.
5
Omit subsection (5).
78
In section 185 (deemed disposal of assets on company ceasing to be UK resident), after subsection (4) insert —
4A
Subsection (4) applies to an overseas life insurance company in the case of its long-term business with —
a
the omission from paragraph (a) of the words “are situated in the United Kingdom and”; and
b
the omission from paragraph (b) of the words “are so situated and”.
79
In section 204(10)(a) (policies of insurance and non-deferred annuities), for “Chapter 1 of Part 12 of the Taxes Act” substitute “section 56 (3) of the Finance Act 2012”.
80
1
Section 210A (ring-fencing of losses) is amended as follows.
2
For subsection (2) substitute —
2
Non-BLAGAB allowable losses accruing to an insurance company are allowable as a deduction from the shareholders’ share (if any) of the BLAGAB chargeable gains accruing to the company (but are not otherwise allowable as a deduction from the BLAGAB chargeable gains accruing to the company).
3
For subsections (10) and (10A) substitute —
10
For the purposes of this section the “shareholders’ share” of BLAGAB chargeable gains or BLAGAB allowable losses accruing to an insurance company in an accounting period is determined as follows.
10A
If the company has an I - E profit for the accounting period —
a
find the percentage (including, if applicable, nil) of the I - E profit that is not represented by the policyholders’ share of that profit as determined in accordance with section 103 of the Finance Act 2012, and
b
then multiply that percentage by the amount of the BLAGAB chargeable gains or BLAGAB allowable losses.
The result is the shareholder’s share of the BLAGAB chargeable gains or BLAGAB allowable losses.
10B
If the company does not have an I - E profit for the accounting period, the shareholders’ share of the BLAGAB chargeable gains or BLAGAB allowable losses is nil.
10C
In determining for the purposes of subsections (10A) and (10B) whether or not the company has an I - E profit for an accounting period, assume that non-BLAGAB allowable losses cannot be deducted to any extent from BLAGAB chargeable gains (and, accordingly, assume that section 95 is not included in the Finance Act 2012).
4
In subsection (11) —
a
for “the policy holders’ share” substitute “the shareholders’ share”, and
b
for “subsection (10)” substitute “subsections (10) to (10C)”.
5
Omit subsection (12).
6
In subsection (13) —
a
in the definitions of “BLAGAB allowable losses” and “BLAGAB chargeable gains”, for “(in accordance with section 432A of the Taxes Act)” substitute “, in accordance with Chapter 4 of Part 2 of the Finance Act 2012,”, and
b
omit the definitions of “the relevant profits” and “the policy holders’ share of the relevant profits” (together with the “and” before the definition of “the relevant profits”).
81
1
Section 210B (disposal and acquisition of section 440A securities) is amended as follows.
2
In subsection (1) —
a
in the opening words, for “section 440A securities” (in both places) substitute “section 119 or 120 securities”, and
b
in paragraphs (a) and (b), for “chargeable section 440A holding” substitute “chargeable section 119 or 120 holding”.
3
In subsection (7)(a), for “linked assets” substitute “assets wholly matched to BLAGAB liabilities and the assets are”.
4
For subsection (8) substitute —
8
In this section —
“BLAGAB internal linked fund” means an internal linked fund all the assets appropriated to which are matched wholly to BLAGAB liabilities,
“chargeable section 119 or 120 holding” means a holding which is a separate holding as a result of section 119 (1)(a) , (c) or (d) or section 120 (1)(a) , (c) or (d) of the Finance Act 2012 (and section 121 (1) and (2) of that Act),
“internal linked fund”, in relation to an insurance company, means an account —
to which assets matched to the company’s life assurance liabilities are appropriated by the company, and
which may be divided into units the value of which is determined by the company by reference to the value of those assets, and
“section 119 or 120 securities” means securities within the meaning of section 119 or 120 of the Finance Act 2012 (see section 121 (6) ).
5
In the heading, for “ section 440A securities ” substitute “ section 119 or 120 securities ”.
82
In section 210C(2) (losses on disposal of authorised investment fund assets to connected manager), in the definition of “authorised investment fund assets”, for “of the company’s long-term insurance fund consisting of” substitute “held by the company for the purposes of its long-term business that consist of”.
83
1
Section 211 (transfers of business) is amended as follows.
2
In subsection (2) —
a
in paragraph (a), for “of the transferor’s long-term insurance fund” substitute “held by the transferor for the purposes of its long-term business”, and
b
in paragraph (b), for “of the transferee’s long-term insurance fund” substitute “held by the transferee for the purposes of its long-term business”.
3
In subsection (2A), for “structural assets within the meaning of section 83XA of the Finance Act 1989” substitute “assets which formed part of the long-term business fixed capital of the company in question”.
4
After subsection (3) insert —
4
Subsection (2) does not apply in relation to assets which are referable to the long-term business of the transferor if all the income of the transferor’s long-term business is chargeable to corporation tax on income under section 35 of CTA 2009.
84
In section 211ZA(10) (transfers of business: transfer of unused losses), for “(in accordance with section 432A of the Taxes Act)” substitute “, in accordance with Chapter 4 of Part 2 of the Finance Act 2012,”.
85
1
Section 212 (annual deemed disposal of holdings of unit trusts etc) is amended as follows.
2
In subsection (1), for “of an insurance company’s long-term insurance fund” substitute “held by an insurance company for the purposes of its long-term business”.
3
Omit subsection (2).
4
At the end insert —
9
This section applies to an overseas life insurance company as if references in subsection (1) to assets were to such of the assets concerned as are UK assets.
10
Assets (whether situated in the United Kingdom or elsewhere) are “UK assets” if, in accordance with the provision made by or under Chapter 4 of Part 2 of CTA 2009, they fall to be attributed to the permanent establishment in the United Kingdom through which the company carries on life assurance business.
86
1
Section 213 (spreading of gains and losses under section 212) is amended as follows.
2
In subsection (1A), for “(in accordance with section 432A of the Taxes Act)” substitute “, in accordance with Chapter 4 of Part 2 of the Finance Act 2012,”.
3
After subsection (4) insert —
4ZA
Subsection (4) applies in relation to an overseas life insurance company with the insertion after “long-term business” of the words “in the United Kingdom through a permanent establishment”.
87
After section 213 insert —
Power to modify ss.212 and 213 etc in case of CFCs that are offshore funds
213A
1
The Treasury may make regulations for the purpose mentioned in subsection (2) in any case where —
a
an insurance company to which the I - E rules apply is deemed to make a disposal under section 212 of an interest in an offshore fund,
b
the offshore fund is a CFC, and
c
there is (or, but for the regulations, would be) a CFC charge on the insurance company referable to its relevant interest in the CFC for the accounting period in which the disposal is deemed to have been made.
2
The regulations are to be made for the purpose of modifying the operation of —
a
section 212 or 213,
b
the CFC rules, or
c
the I - E rules,
in relation to any accounting period of the insurance company so as to reduce the charge to tax.
3
The regulations may —
a
make different provision for different cases or circumstances, and
b
contain incidental, supplementary, consequential, transitional, transitory or saving provision.
4
The provision that may be made as a result of subsection (3)(b) includes provision modifying any other provision of the Corporation Tax Acts.
5
In this section —
“CFC” and “CFC charge” have the same meanings as in Part 9A of TIOPA 2010 (see section 371VA),
“the CFC rules” means the rules contained in that Part, and
“offshore fund” has the meaning given by section 355 of TIOPA 2010.
88
1
Schedule 7AC (exemptions for disposals by companies with substantial shareholdings) is amended as follows.
2
In paragraph 6(1)(c), for “section 440(1) or (2) of the Taxes Act” substitute “any of sections 116 to 118 of the Finance Act 2012”.
3
Paragraph 17 is amended as follows.
4
In sub-paragraph (2), for “of its long-term insurance fund” substitute “held by it for the purposes of its long-term business”.
5
In sub-paragraph (3)(b), for “of its long-term insurance fund” substitute “for the purposes of its long-term business”.
6
In sub-paragraph (4), for “as assets of its long-term insurance fund” substitute “for the purposes of its long-term business”.
7
In sub-paragraph (4A) —
a
for “of the investing company’s long-term insurance fund” substitute “held by the investing company for the purposes of its long-term business”,
b
for “as assets of its long-term insurance fund” substitute “for the purposes of its long-term business”, and
c
for “a structural asset, or structural assets, within the meaning of section 83XA of the Finance Act 1989” substitute “an asset or assets which formed part of the long-term business fixed capital of the company in question”.
8
In the italic heading before that paragraph, for “ insurance company’s long-term insurance fund ” substitute “ insurance company held for the purposes of its long-term business ”.
89
In paragraph 1 of Schedule 7AD (gains of insurance company from venture capital investment partnership), for “the assets of the long-term insurance fund of an insurance company (“the company”)” substitute “the assets held by an insurance company (“the company”) for the purposes of its long-term business”.
Finance Act 1993
90
FA 1993 is amended as follows.
91
In section 91 (deemed disposals of unit trusts by insurance companies), omit subsection (2).
Finance Act 1999
92
FA 1999 is amended as follows.
93
In section 81(8) (acquisitions disregarded under insurance companies concession), in the definition of “insurance company”, for “meaning of Chapter I of Part XII of the Taxes Act 1988” substitute “meaning given by section 65 of the Finance Act 2012”.
Capital Allowances Act 2001
94
CAA 2001 is amended as follows.
95
In section 19(5) (special leasing of plant or machinery), for “life assurance business” substitute “long-term business”.
96
In the italic heading before section 254, for “ Life assurance ” substitute “ Long-term ”.
97
In section 254(1) (introductory), for “life assurance business” substitute “long-term business”.
98
For section 255 substitute —
Apportionment of allowances and charges
255
1
This section applies if the long-term business of the company consists of —
a
basic life assurance and general annuity business, and
b
non-BLAGAB long-term business.
2
In that case —
a
any allowance to which the company is entitled for a chargeable period in respect of a management asset, and
b
any charge to which it is liable for a chargeable period in respect of a management asset,
must be apportioned between the businesses in accordance with Chapter 7 of Part 2 of FA 2012.
99
1
Section 256 (different giving effect rules for different categories of business) is amended as follows.
2
In subsection (1)(b) —
a
for “under the I minus E basis” substitute “in accordance with the I - E rules”, and
b
for “its life assurance business” substitute “that business”.
3
In subsection (2)(a), for the words from “as expenses payable” to “section 76(7) of ICTA” substitute “for the purposes of section 76 of FA 2012 as deemed BLAGAB management expenses for the chargeable period in question”.
4
Omit subsections (3) and (4).
5
In the heading, for “ different categories of business ” substitute “ BLAGAB ”.
100
In section 257(2) (supplementary), for paragraphs (a) and (b) substitute —
a
section 93 (5) of FA 2012 (minimum profits test), or
b
section 103 of FA 2012 (rules for determining policyholders’ share of I - E profit).
101
1
Section 261 (special leasing: life assurance business) is amended as follows.
2
For “life assurance business” substitute “long-term business”.
3
In the heading, for “ life assurance business ” substitute “ long-term business ”.
102
In the heading for Chapter 1 of Part 12, for “LIFE ASSURANCE” substitute “LONG-TERM”.
103
1
Section 544 (management assets) is amended as follows.
2
In subsections (1) and (2), for “life assurance business” substitute “long-term business”.
3
Omit subsection (3).
104
1
Section 545 (investment assets) is amended as follows.
2
In subsection (1), for “life assurance business” substitute “long-term business”.
3
For subsections (3) to (5) substitute —
3
No allowance in respect of an investment asset is to be taken into account in calculating for corporation tax purposes the profits of any non-BLAGAB long-term business carried on by the company.
105
1
Section 560 (transfer of insurance company business) is amended as follows.
2
In subsection (1)(b)(ii), omit the words from “within” to the end.
3
In subsection (5), after paragraph (d) insert —
e
qualifying overseas transfer” means so much of a transfer of the whole or any part of the business of an overseas life insurance company carried on through a permanent establishment in the United Kingdom as takes place in accordance with an authorisation granted outside the United Kingdom for the purposes of Article 14 of the Council Directive of 5 November 2002 concerning life assurance ( 2002/83/EC ).
106
1
Schedule A1 (first-year tax credits) is amended as follows.
2
In paragraph 7 —
a
in sub-paragraph (2), for the words from “which is treated” to the end substitute “which, as a result of section 87 (3) of FA 2012, is treated for the purposes of section 76 of that Act as a deemed BLAGAB management expense for an accounting period”, and
b
in sub-paragraph (3), for “section 432AA” substitute “section 86” and for “section 432AB(4)” substitute “section 87 (4) ”.
3
In paragraph 9 —
a
in sub-paragraph (1), for “life assurance business” substitute “basic life assurance and general annuity business” and for “under the I minus E basis” substitute “in accordance with the I - E rules”, and
b
in sub-paragraph (2), for “section 76(12) of ICTA” substitute “section 73 of FA 2012”.
4
In paragraph 14 —
a
in sub-paragraph (2), for “section 76(12) of ICTA” substitute “section 73 of FA 2012”,
b
in sub-paragraph (3), for “section 76(12)” substitute “section 73”,
c
in sub-paragraph (5), for “section 76(12) of ICTA” substitute “section 73 of FA 2012”, and
d
for sub-paragraph (6) substitute —
6
Disregard any amounts brought forward from an earlier chargeable period which fall to be taken into account in calculating for the purposes of section 73 of FA 2012 the amount of adjusted BLAGAB management expenses of the company for the period in question as a result of —
a
the previous application of section 73 or 93 of FA 2012, or
b
the carry forward to the period in question of an amount under section 391(3) of CTA 2009 (loan relationship deficit carried forward).
5
In paragraph 16 —
a
in sub-paragraph (1), for “life assurance business” substitute “basic life assurance and general annuity business” and for “under the I minus E basis” substitute “in accordance with the I - E rules”, and
b
for sub-paragraph (3) substitute —
3
For this purpose, no account is to be taken of any amounts brought forward from an earlier chargeable period which fall to be taken into account in calculating for the purposes of section 73 of FA 2012 the amount of adjusted BLAGAB management expenses of the company for the period in question as a result of —
a
the previous application of section 73 or 93 of FA 2012, or
b
the carry forward to the period in question of an amount under section 391(3) of CTA 2009 (loan relationship deficit carried forward).
6
In paragraph 21 —
a
in sub-paragraph (1)(a), for the words from “treated” to the end substitute “which, as a result of section 87 (3) of FA 2012, is treated for the purposes of section 76 of that Act as a deemed BLAGAB management expense for the chargeable period”,
b
in sub-paragraph (1)(b), for “section 76(12) of that Act” substitute “section 73 of FA 2012”, and
c
in sub-paragraph (2), for “section 76(12) of ICTA” substitute “section 73 of FA 2012”.
7
In paragraph 22 —
a
in sub-paragraph (1), for “life assurance business” substitute “basic life assurance and general annuity business” and for “under the I minus E basis” substitute “in accordance with the I - E rules”, and
b
for sub-paragraph (2) substitute —
2
For the purposes of those rules, the total amount which may —
a
be carried forward under section 73 of FA 2012 from a chargeable period in which the company claims a first-year tax credit, and
b
be brought into account for the next chargeable period in accordance with step 5 in section 76 of FA 2012,
is treated as reduced by the amount of the loss surrendered.
107
1
Part 2 of Schedule 1 (index of defined expressions) is amended as follows.
2
Omit the entry for “life assurance business”.
3
Insert the following entries at the appropriate places —
basic life assurance and general annuity business sections 57 and 67 (5) of FA 2012 (as applied by section 141 (2) of that Act)
I - E rules section 70 (1) and (2) of FA 2012 (as applied by section 141 (2) of that Act)
insurance company section 65 of FA 2012 (as applied by section 141 (2) of that Act)
long-term business section 63(1) of FA 2012 (as applied by section 141 (2) of that Act)
non-BLAGAB long-term business sections 66 and 67 of FA 2012 (as applied by section 141 (2) of that Act)
Finance Act 2003
108
FA 2003 is amended as follows.
109
Omit section 156 (overseas life insurance companies).
Income Tax (Earnings and Pensions) Act 2003
110
ITEPA 2003 is amended as follows.
111
In section 357(3) (business entertainment and gifts: exception where employer’s expenses disallowed), for paragraph (b) substitute —
b
the ordinary BLAGAB management expenses of the employer for the purposes of section 76 of FA 2012.
Finance Act 2004
112
FA 2004 is amended as follows.
113
In section 196(4) (relief for employers in respect of contributions paid) —
a
in the opening words, for “section 76 of ICTA” substitute “section 76 of FA 2012”, and
b
in paragraph (a), for “brought into account at Step 1 in subsection (7) of that section to the extent that they otherwise would not be” substitute “treated as meeting the conditions in section 77 (2)(a) and (c) of that Act to the extent that they would otherwise not meet them”.
114
In section 196A(4)(c) (power to restrict relief), for “brought into account at Step 1 in section 76(7) of ICTA (expenses of insurance companies) in respect of the employer” substitute “ordinary BLAGAB management expenses of the employer for an accounting period for the purposes of section 76 of FA 2012”.
115
In section 196L(2) (employer asset-backed contributions: supplementary), as inserted by Part 3 of Schedule 13 to this Act, for paragraph (c) substitute —
c
the contribution being ordinary BLAGAB management expenses of the employer for an accounting period for the purposes of section 76 of FA 2012.
116
In section 197(10)(b) (spreading of relief), for “section 76 of ICTA” substitute “section 76 of FA 2012”.
117
In section 199 (deemed contributions), for subsection (5) substitute —
5
And, for the purposes of section 76 of FA 2012, it is to be treated as meeting the conditions in section 77 (2)(a) and (c) of that Act to the extent that it would otherwise not meet them.
118
In section 199A(10)(c) (indirect contributions), for “brought into account at Step 1 in section 76(7) of ICTA (expenses of insurance companies) in respect of E” substitute “ordinary BLAGAB management expenses of E for an accounting period for the purposes of section 76 of FA 2012”.
119
In section 200 (no other relief for employers in connection with contributions), for paragraph (c) substitute —
c
are to count as ordinary BLAGAB management expenses of the employer for an accounting period for the purposes of section 76 of FA 2012,
.
120
1
Section 246 (restriction of deduction for non-contributory provision) is amended as follows.
2
In subsection (2), for paragraph (c) substitute —
c
are not to count as ordinary BLAGAB management expenses of the employer for an accounting period for the purposes of section 76 of FA 2012.
3
In subsection (3)(b), for “section 76 of ICTA” substitute “section 76 of FA 2012”.
121
In section 246A(4)(c) (case where no relief for provision by an employer), for “brought into account at Step 1 in section 76(7) of ICTA (expenses of insurance companies) in respect of the employer” substitute “ordinary BLAGAB management expenses of the employer for an accounting period for the purposes of section 76 of FA 2012”.
122
In section 280(1) (abbreviations) —
a
omit the “and” before the definition of “CTA 2009”, and
b
after that definition insert —
“FA 2012” means the Finance Act 2012.
Finance (No.2) Act 2005
123
F(No.2)A 2005 is amended as follows.
124
In section 18(3)(b) (specific powers relating to authorised unit trusts and open-ended investment companies), for sub-paragraph (iii) (but not the “or” at the end of it) substitute —
iii
by an insurance company (within the meaning of section 65 of FA 2012) as assets for the purposes of its long-term business (within the meaning of section 63 of that Act),
.
Income Tax (Trading and Other Income) Act 2005
125
ITTOIA 2005 is amended as follows.
126
In section 48(4A) (car hire) —
a
at the end of paragraph (a) insert “or”,
b
in paragraph (b), after “management),” insert “including as applied by section 82 (4) of FA 2012.”, and
c
omit paragraph (c) (together with the “or” before that paragraph).
127
In section 473(2) (policies and contracts to which Chapter 9 of Part 4 applies: general), in the definition of “capital redemption policy”, for “within the meaning of Chapter 1 of Part 12 of ICTA” substitute “within the meaning given by section 56 (3) of FA 2012”.
128
In section 476(3) (special rules: foreign policies), in the definition of “overseas life assurance business”, for “same meaning as in Part 12 of ICTA (see section 431D of that Act)” substitute “meaning given by section 61 of FA 2012”.
129
In section 504(7) (part surrenders: payments under guaranteed income bonds etc), in the definition of “pension business”, for “section 431B of ICTA” substitute “section 58 of FA 2012”.
130
1
Section 531 (gains from contracts for life insurance etc: cases where income tax not treated as paid) is amended as follows.
2
In subsection (3), after paragraph (b) insert —
ba
a contract the effecting or carrying out of which constitutes protection business within the meaning of section 62 of FA 2012,
bb
a contract which is not within paragraph (ba) but which, as a result of subsection (4) of that section, is treated for the purposes of that section as being made at any time,
.
3
In subsection (4), in the definition of “basic life assurance and general annuity business”, for “Chapter 1 of Part 12 of ICTA (see section 431F)” substitute “Part 2 of FA 2012 (see sections 57 and 67 (5) )”.
131
In paragraph 118(2) of Schedule 2 (pre-1 January 2005 contracts for immediate needs annuities: income tax treated as paid), for the words from “means” to the end substitute “means the application of section 57 (2)(d) of FA 2012”.
Income Tax Act 2007
132
ITA 2007 is amended as follows.
133
In section 564B(1) (meaning of “financial institution”) —
a
in paragraph (g), for “section 431(2) of ICTA” substitute “section 65 of FA 2012”, and
b
in paragraph (h), for “section 431(2) of ICTA” substitute “section 139 (1) of FA 2012”.
134
In section 681DP (relevant tax relief), for paragraph (c) substitute —
c
a deduction of an amount which for the purposes of section 73 of FA 2012 is adjusted BLAGAB management expenses of an insurance company for an accounting period,
.
Corporation Tax Act 2009
135
CTA 2009 is amended as follows.
136
In section A1(2) (overview of the Corporation Tax Acts) —
a
omit paragraph (a), and
b
omit the “and” before paragraph (j) and after that paragraph insert —
k
Part 2 of FA 2012 (insurance companies carrying on long-term business),
.
137
1
Section 18Q (UK resident insurance companies: profits of foreign permanent establishments) is amended as follows.
2
In subsection (1), omit “(as defined in section 431(2) of ICTA)”.
3
Omit subsections (2) and (3).
138
For section 24 substitute —
Application to insurance companies
24
1
This section makes provision in a case where the non-UK resident company mentioned in subsection (1) of section 21 is an insurance company.
2
In accordance with the principle in that subsection, the permanent establishment is treated as holding —
a
the same or a similar quantity of assets, and
b
assets of the same or similar description,
as would have been held by a distinct and separate enterprise acting as mentioned in paragraphs (a) and (b) of that subsection.
3
The assets which the permanent establishment is treated as holding in accordance with the principle in that subsection may include a proportion of assets held by the company.
4
Nothing in subsection (2) or (3) is to be read as preventing the application of similar principles to those provided for by that subsection in a case where the non-UK resident company mentioned in section 21(1) is not an insurance company.
5
The Commissioners for Her Majesty’s Revenue and Customs may by regulations make other provision about the application of section 21(1) in a case where the non-UK resident company mentioned there is an insurance company.
6
The regulations may, in particular, make provision in place of section 21(2)(b) as to the basis on which, in the case of an insurance company, capital is to be attributed to a permanent establishment in the United Kingdom.
139
In section 36(3) (farming and market gardening), for “of the company’s long-term insurance fund” substitute “held by the company for the purposes of its long-term business”.
140
In section 38(3)(d) (commercial occupation of land other than woodlands), for “of the company’s long-term insurance fund” substitute “held by the company for the purposes of its long-term business”.
141
In section 39(5)(a) (profits of mines, quarries and other concerns), for “of the company’s long-term insurance fund” substitute “held by the company for the purposes of its long-term business”.
142
In section 46(3)(a) (generally accepted accounting practice), omit sub-paragraph (ii) (together with the “or” before it).
143
In section 56(5) (car hire) —
a
at the end of paragraph (a), insert “including as applied by section 82 (4) of FA 2012, or”, and
b
omit paragraph (c) (together with the “or” before that paragraph).
144
In section 130(1)(a) (insurers receiving distributions etc), for “life assurance business” substitute “business in relation to which section 111 of FA 2012 applies”.
145
In section 201 (priority rules: provisions which must be given priority over Part 3 of Act), after subsection (1) insert —
1A
Subsection (1) does not apply in the case of the long-term business of an insurance company.
146
In section 203(4) (property businesses) —
a
for “section 432AA of ICTA” substitute “section 86 of FA 2012”, and
b
for “in the case of” substitute “for the purpose of applying the I - E rules in relation to”.
147
1
Section 298 (meaning of trade and purposes of trade) is amended as follows.
2
In subsection (3) —
a
at the end of paragraph (a), insert “or”, and
b
omit paragraph (c) (together with the “or” before it).
3
After subsection (5) insert —
6
In the case of activities carried on by a company in the course of any basic life assurance and general annuity business, provision corresponding to that made by subsection (3) is made by section 88 of FA 2012 for the purpose of applying the I - E rules.
148
1
Section 336 (transfers of loans on group transactions) is amended as follows.
2
In subsection (4), for “is within one of the categories set out in section 440(4)(a), (d) and (e) of ICTA (assets held for certain categories of long-term business)” substitute “is held for the purposes of a company’s long-term business”.
3
After that subsection insert —
4A
For the purposes of subsection (4) —
a
in the case of an overseas life insurance company, ignore transfers in relation to assets which are not UK assets (within the meaning of section 117 of FA 2012), and
b
section 122 of that Act applies as it applies for the purposes of Chapter 8 of Part 2 of that Act.
149
1
Section 337 (transfers of loans on insurance business transfers) is amended as follows.
2
After subsection (3) insert —
3A
In subsection (3)(b) “qualifying overseas transfer” means so much of a transfer of the whole or any part of the business of an overseas life insurance company carried on through a permanent establishment in the United Kingdom as takes place in accordance with an authorisation granted outside the United Kingdom for the purposes of Article 14 of the Council Directive of 5 November 2002 concerning life assurance ( 2002/83/EC ).
3
In subsection (4)(a), for “the categories set out in section 440(4) of ICTA” substitute “the applicable categories”.
4
After subsection (4) insert —
4A
For the purposes of subsection (4)(a) “the applicable categories” means —
a
in the case of a UK life insurance company, the long-term business categories or a category of assets which are not held for the purposes of its long-term business, and
b
in the case of an overseas life insurance company, the UK long-term business categories, a category of UK assets which are not held for the purposes of its long-term business or a category of assets which are held by it but which are not UK assets.
4B
For the purposes of subsection (4A) —
a
“the long-term business categories” has the same meaning as in section 116 of FA 2012,
b
“the UK long-term business categories” and “UK assets” have the same meanings as in section 117 of that Act, and
c
section 122 of that Act applies as it applies for the purposes of Chapter 8 of Part 2 of that Act.
150
1
Section 386 (overview of Chapter 10 of Part 5 (insurance companies)) is amended as follows.
2
In subsection (2) —
a
in paragraph (a), after “apply” insert “for the purposes of the I - E rules” and at the end insert “and”, and
b
omit paragraph (c) (together with the “and” before it).
3
In subsection (3) —
a
in paragraph (a), omit “or of BLAGAB”,
b
in paragraph (a), after “trade)” insert “and section 88 of FA 2012 (equivalent rule for activities carried on in the course of BLAGAB)”, and
c
in paragraph (f), for “as expenses of insurance companies at Step 1 of section 76(7) of ICTA” substitute “as ordinary BLAGAB management expenses”.
151
In section 387(1) (treatment of deficit on BLAGAB: introduction), after “apply” insert “for the purposes of the I - E rules”.
152
In section 388(3) (basic rule: deficit set off against income and gains of deficit period), for “before any expenses deduction under section 76 of ICTA (expenses of insurance companies)” substitute “in accordance with step 4 in section 73 of FA 2012 (that is to say, before any deduction for the adjusted BLAGAB management expenses of the company for the deficit period)”.
153
In section 389 (claim to carry back deficit), after subsection (2) insert —
2A
If any of the claim amount is carried back in accordance with this section to an accounting period, the amount which is so carried back is to be left out of account for the purpose of applying section 93 of FA 2012 in the case of that period.
154
1
Section 390 (meaning of “available profits”) is amended as follows.
2
In subsection (4), for the words from “which is” to the end substitute “of the BLAGAB credits in respect of the company’s loan relationships that count as income for the purposes of the I - E rules for that period (as determined by section 88 (3) and (4) of FA 2012)”.
3
In subsection (5) —
a
in step 1(a), for “so much of the expenses deduction for the period given by Step 8 in section 76(7) of ICTA (expenses of insurance companies) as is referable to BLAGAB” substitute “the amount for the purposes of section 73 of FA 2012 of the adjusted BLAGAB management expenses of the company for the period”,
b
in step 1(b), for “so referable” substitute “referable to BLAGAB”,
c
in step 2, for paragraph (a) (together with the “and” at the end of it) substitute —
a
so much of the amount for the purposes of section 73 of FA 2012 of the adjusted BLAGAB management expenses of the company for the period as, on the assumption that the company had no BLAGAB non-trading loan relationships profits for the period, could be subtracted at step 6 under that section without producing a negative amount, and
, and
d
in step 2(b), for “so referable” substitute “referable to BLAGAB”.
4
For subsection (6) substitute —
6
In the case of any claim under section 389, references in subsection (5) to the amount for the purposes of section 73 of FA 2012 of the adjusted BLAGAB management expenses of the company for the period are references to that amount as determined on the assumptions in subsections (7) and (8).
155
In section 391 (carry forward of surplus deficit to next accounting period), for subsection (3) substitute —
3
Any deficit so carried forward is treated for the purposes of section 76 of FA 2012 as a deemed BLAGAB management expense for the next period.
156
Omit sections 393 and 394 (insurance companies: determination of questions requiring apportionments) and the italic heading before those sections.
157
In section 399 (index-linked gilt-edged securities), at the end insert —
6
In the case of insurance companies, the application of sections 400 to 400C is subject to section 112 of FA 2012.
158
In section 464(3) (list of exceptions to general rule that Part 5 (loan relationships) has priority for corporation tax purposes), omit paragraph (h) (but not the “and” at the end of that paragraph).
159
In section 471(3) (connections between persons: creditors who are insurance companies carrying on BLAGAB), for “is linked for that period to that business” substitute “is matched for that period to a BLAGAB liability”.
160
In section 472(4)(b) (meaning of “control”), for “of an insurance company’s long-term insurance fund” substitute “held by an insurance company for the purposes of its long-term business”.
161
In section 473(3)(b) (meaning of “major interest”), for “of an insurance company’s long-term insurance fund” substitute “held by an insurance company for the purposes of its long-term business”.
162
In section 486(4) (exclusion of exchange gains and losses in respect of tax debts etc), for paragraph (c) substitute —
c
as ordinary BLAGAB management expenses within the meaning of section 77 of FA 2012 (insurance companies carrying on basic life assurance and general annuity business).
163
In section 502(1) (meaning of “financial institution”) —
a
in paragraph (g), for “section 431(2) of ICTA” substitute “section 65 of FA 2012”, and
b
in paragraph (h), for “section 431(2) of ICTA” substitute “section 139 (1) of FA 2012”.
164
In section 560(4) (investment life insurance contracts: introduction) —
a
in paragraph (a), for “section 431(2) of ICTA” substitute “section 65 of FA 2012” and for “that section” substitute “section 63 of that Act”, and
b
in paragraph (b), for the words from “but” to the end substitute “if subsection (3)(a) were omitted from section 65 of that Act.”
165
In section 561(2) (meaning of “investment life insurance contract”), in the definition of “capital redemption policy”, for “section 431(2ZF) of ICTA” substitute “section 56 (3) of FA 2012”.
166
In section 563(6)(a) (increased non-trading credits for BLAGAB and EEA taxed contracts), for “section 88(1) of FA 1989” substitute “section 102 (3) of FA 2012”.
167
1
Section 591 (conditions A to E mentioned in section 589(5)) is amended as follows.
2
In subsection (2)(a), for “life assurance business” substitute “long-term business”.
3
In subsection (2)(b), after “Sourcebook” insert “(within the meaning given by section 139 (4) of FA 2012)”.
168
1
Section 634 (insurance companies) is amended as follows.
2
The existing text becomes subsection (1) of that section.
3
In that subsection, omit paragraph (b) (together with the “or” before it).
4
After that subsection insert —
2
In the case of activities carried on by a company in the course of any basic life assurance and general annuity business, provision corresponding to that made by subsection (1) is made by section 88 of FA 2012 for the purpose of applying the I - E rules.
169
1
Section 635 (creditor relationships of insurance companies: embedded derivatives which are options) is amended as follows.
2
In subsection (1)(a), for “life assurance business” substitute “basic life assurance and general annuity business”.
3
In subsection (2), for “This Part” substitute “For the purpose of applying the I - E rules, this Part”.
170
1
Section 636 (insurance companies: modifications of Chapter 5 (continuity of treatment on transfers within groups)) is amended as follows.
2
In subsection (3), after the subsection (2B) which is treated as if it were inserted in section 626 insert —
2C
In subsection (2B) “qualifying overseas transfer” means so much of a transfer of the whole or any part of the business of an overseas life insurance company carried on through a permanent establishment in the United Kingdom as takes place in accordance with an authorisation granted outside the United Kingdom for the purposes of Article 14 of the Council Directive of 5 November 2002 concerning life assurance (No. 2002/83/EC ).
3
In subsection (4), for the words from “the asset was within one of the categories set out in section 440(4)(a), (d) and (e) of ICTA” to the end substitute “, immediately before or after the transfer, the asset was held for the purposes of a company’s long-term business (but, in the case of an overseas life insurance company, ignoring assets which are not UK assets (within the meaning of section 117 of FA 2012)).”
4
In subsection (5)(a), for “the categories set out in section 440(4) of ICTA (transfers of assets etc)” substitute “the applicable categories”.
5
After subsection (5) insert —
5A
For the purposes of subsection (5)(a) “the applicable categories” means —
a
in the case of a UK life insurance company, the long-term business categories or a category of assets which are not held for the purposes of its long-term business, and
b
in the case of an overseas life insurance company, the UK long-term business categories, a category of UK assets which are not held for the purposes of its long-term business or a category of assets which are held by it but which are not UK assets.
6
After subsection (7) insert —
8
For the purposes of this section —
a
“the long-term business categories” has the same meaning as in section 116 of FA 2012, and “the UK long-term business categories” and “UK assets” have the same meanings as in section 117 of FA 2012, and
b
section 122 of FA 2012 applies as it applies for the purposes of Chapter 8 of Part 2 of that Act.
171
In section 699(3) (list of exceptions to general rule that Part 7 (derivative contracts) has priority for corporation tax purposes) —
a
at the end of paragraph (a) insert “and”, and
b
omit paragraph (c) (together with the “and” before it).
172
In section 710 (derivative contracts: other definitions) —
a
in the definition of “capital redemption policy”, for “section 431(2ZF) of ICTA” substitute “section 56 (3) of FA 2012”,
b
in the definition of “contract of insurance”, for “section 431(2) of ICTA” substitute “section 64 of FA 2012”, and
c
in the definition of “contract of long-term insurance”, for “section 431(2) of ICTA” substitute “section 64 of FA 2012”.
173
In section 746(2)(c) (“non-trading credits” and “non-trading debits”), for “section 901(3)” substitute “section 901”.
174
In section 800(3) (excluded assets: introduction), omit paragraph (b) (together with the “and” before it).
175
In section 806(3) (assets excluded from Part 8 (intangible fixed assets): financial assets), after paragraph (c) (but before the “and” at the end of that paragraph) insert —
ca
assets so far as they are derived from, or are referable to, contracts or policies of insurance or capital redemption policies,
.
176
In section 810 (mutual trade or business), omit subsection (2).
177
In section 815 (election to exclude capital expenditure on software), omit subsection (8).
178
In section 855(4) (further provision about regulations under section 854), omit “or section 902”.
179
For section 901 substitute —
Effect of application of the I - E basis: non-trading amounts
901
In the application of the I - E rules in relation to a company’s basic life assurance and general annuity business, the provisions of this Part need to be read with section 88 of FA 2012 (which provides for the activities carried on by the company in the course of that business not to constitute the whole or any part of a trade or of a property business).
180
Omit sections 902 (excluded assets) and 903 (elections to exclude capital expenditure on computer software) and the italic heading before those sections.
181
Omit section 904 (transfers of life assurance business: transfers of assets treated as tax-neutral).
182
In section 906(3) (list of exceptions to general rule that Part 8 has priority for corporation tax purposes), omit paragraph (b) (but not the “and” at the end of that paragraph).
183
In section 931S(3) (company distributions: meaning of “small company”), in the definition of “insurance company”, for “section 431 of ICTA” substitute “section 65 of FA 2012”.
184
In section 931W (provisions which must be given priority over Part 9A), omit subsection (3).
185
In section 985 (references to a deduction being allowed to a company), for subsection (4) substitute —
4
If —
a
the company is a company in relation to which the I - E rules apply, and
b
the expenses are referable, in accordance with Chapter 4 of Part 2 of FA 2012, to the company’s basic life assurance and general annuity business,
the expenses are treated for the purposes of section 76 of that Act as ordinary BLAGAB management expenses of the company.
186
In section 999 (deduction for costs of setting up SAYE option scheme or CSOP scheme), for subsection (5) substitute —
5
If —
a
the company is a company in relation to which the I - E rules apply, and
b
the expenses are referable, in accordance with Chapter 4 of Part 2 of FA 2012, to the company’s basic life assurance and general annuity business,
the expenses are treated for the purposes of section 76 of that Act as ordinary BLAGAB management expenses of the company.
187
1
Section 1000 (deduction for costs of setting up employee share ownership trust) is amended as follows.
2
In subsection (2), for “subsections (3) and (4)” substitute “subsection (3)”.
3
Omit subsection (4).
188
In section 1013 (relief if shares acquired by employee or other person: how relief is given), for subsection (4) substitute —
4
If —
a
the employing company is a company in relation to which the I - E rules apply, and
b
the relief is referable, in accordance with Chapter 4 of Part 2 of FA 2012, to the employing company’s basic life assurance and general annuity business,
the amount of relief is treated for the purposes of section 76 of that Act as ordinary BLAGAB management expenses of the company referable to the accounting period.
189
In section 1021 (relief if employee or other person obtains option to acquire shares: how relief is given), for subsection (4) substitute —
4
If —
a
the employing company is a company in relation to which the I - E rules apply, and
b
the relief is referable, in accordance with Chapter 4 of Part 2 of FA 2012, to the employing company’s basic life assurance and general annuity business,
the amount of relief is treated for the purposes of section 76 of that Act as ordinary BLAGAB management expenses of the company referable to the accounting period.
190
1
Section 1080 (entitlement to relief: I minus E basis) is amended as follows.
2
In subsection (1), for “under the I minus E basis in respect of its life assurance business” substitute “in respect of its basic life assurance and general annuity business in accordance with the I - E rules”.
3
For subsection (2) substitute —
2
If any additional deduction to which the company would otherwise be entitled under section 1074 is referable, in accordance with Chapter 4 of Part 2 of FA 2012, to the company’s basic life assurance and general annuity business, it is to be treated for the purposes of section 76 of that Act as a deemed BLAGAB management expense for the accounting period in question.
4
Omit subsections (3) and (4).
191
In section 1083 (refunds of expenditure treated as income chargeable to tax), omit subsections (4) and (5).
192
In section 1143(4) (overview of Part 14) —
a
in paragraph (a), for “life assurance business” substitute “basic life assurance and general annuity business”, and
b
in paragraph (b), for ““life assurance company tax credits”” substitute ““BLAGAB tax credits””.
193
1
Section 1153 (land remediation tax credit: amount of a loss which is “unrelieved”) is amended as follows.
2
In subsection (3), for the words from “, as a result of section 432AB(3) of ICTA,” to the end substitute “, as a result of section 87 (3) of FA 2012, the loss is treated for the purposes of section 76 of that Act as a deemed BLAGAB management expense for the relevant accounting period.”
3
In subsections (4) to (6), for “section 76(12) of ICTA” substitute “section 73 of FA 2012”.
4
In subsection (7), for paragraph (b) substitute —
b
taken into account in calculating for the purposes of section 73 of FA 2012 the amount of adjusted BLAGAB management expenses of the company for the relevant accounting period as a result of —
i
the previous application of section 73 or 93 of FA 2012, or
ii
the carry forward to the relevant accounting period of an amount under section 391 of this Act (surplus deficit).
5
In subsection (8) —
a
in paragraph (b), for “section 432AA of ICTA” substitute “section 86 of FA 2012”, and
b
in the words after that paragraph, for “section 432AB(4) of ICTA” substitute “section 87 (4) of FA 2012”.
194
1
Section 1158 (restriction on losses carried forward where tax credit claimed) is amended as follows.
2
In subsection (3) —
a
for paragraph (a) substitute —
a
as a result of section 87 (3) of FA 2012, a company’s UK property business loss is treated for the purposes of section 76 of that Act as a deemed BLAGAB management expense for the accounting period,
and
b
in paragraph (b), for “section 76(12) of ICTA” substitute “section 73 of FA 2012”.
3
In subsection (4), for “section 76(12) of ICTA” substitute “section 73 of FA 2012”.
195
In the heading for Chapter 4 of Part 14, for “LIFE ASSURANCE BUSINESS” substitute “BLAGAB”.
196
Omit section 1159 (limitation on relief under Chapter 2 of Part 14: insurance companies) and the italic heading before that section.
197
In section 1160 (provision in respect of I minus E basis) —
a
for “The remaining provisions of this Chapter apply” substitute “This Chapter applies”, and
b
for “under the I minus E basis in respect of its life assurance business” substitute “in respect of its basic life assurance and general annuity business in accordance with the I - E rules”.
198
1
Section 1161 (relief in respect of I minus E basis: expenses payable) is amended as follows.
2
In subsection (6), for “section 76(7) of ICTA” substitute “section 76 of FA 2012”.
3
In subsection (7)(a), for “life assurance business” substitute “basic life assurance and general annuity business”.
199
1
Section 1162 (additional relief) is amended as follows.
2
In subsection (3), for the words from “as expenses payable” to the end substitute “for the purposes of section 76 of FA 2012 as deemed BLAGAB management expenses for the accounting period”.
3
In subsection (4)(b), for the words from “which” to the end substitute “of the expenditure which, for the purposes of section 76 of FA 2012, is not an ordinary BLAGAB management expense of the company referable to the accounting period as a result of the application of section 77 (2)(b) of that Act”.
200
In the italic heading before section 1164, for “ Life assurance ” substitute “ BLAGAB ”.
201
1
Section 1164 (entitlement to tax credit) is amended as follows.
2
In subsections (1) and (2) —
a
for “a life assurance company tax credit” substitute “a BLAGAB tax credit”, and
b
for “qualifying life assurance business loss” substitute “qualifying BLAGAB loss”.
3
In subsections (3) and (4), for “a life assurance company tax credit” substitute “a BLAGAB tax credit”.
202
1
Section 1165 (meaning of “qualifying life assurance business loss”) is amended as follows.
2
In subsection (1) —
a
in the opening words, for ““qualifying life assurance business loss”” substitute ““qualifying BLAGAB loss””, and
b
in paragraph (b), for “section 76(12) of ICTA (unrelieved expenses carried forward)” substitute “section 73 of FA 2012 as excess BLAGAB expenses”.
3
In subsection (2), for “section 76(12) of ICTA” substitute “section 73 of FA 2012 as excess BLAGAB expenses”.
4
In subsection (3), for paragraph (b) substitute —
b
taken into account in calculating for the purposes of section 73 of FA 2012 the amount of adjusted BLAGAB management expenses of the company for the relevant accounting period as a result of —
i
the previous application of section 73 or 93 of FA 2012, or
ii
the carry forward to the relevant accounting period of an amount under section 391 of this Act (surplus deficit).
5
In subsection (4), for “qualifying life assurance business loss” substitute “qualifying BLAGAB loss”.
6
In the heading, for “ “qualifying life assurance business loss” ” substitute “ “qualifying BLAGAB loss” ”.
203
In section 1166(1) (amount of tax credit) —
a
for “life assurance company tax credit” substitute “BLAGAB tax credit”, and
b
for “qualifying life assurance business loss” substitute “qualifying BLAGAB loss”.
204
In section 1167(1) and (3)(a) (payment of tax credit etc), for “a life assurance company tax credit” substitute “a BLAGAB tax credit”.
205
1
Section 1168 (restriction on carrying forward expenses payable where tax credit claimed) is amended as follows.
2
In subsection (1), for “a life assurance company tax credit” substitute “a BLAGAB tax credit”.
3
In subsection (2) —
a
for “section 76 of ICTA” substitute “section 73 of FA 2012”,
b
for “subsection (12) of that section” substitute “that section as excess BLAGAB expenses”, and
c
for “Step 7 in subsection (7) of that section” substitute “step 5 in section 76 of FA 2012”.
4
In subsection (3), for “qualifying life assurance business loss” substitute “qualifying BLAGAB loss”.
206
In section 1169(2) (artificially inflated claims for relief or tax credit) —
a
in paragraph (c), for “life assurance business” substitute “basic life assurance and general annuity business”, and
b
in paragraph (d), for “life assurance company tax credits” substitute “BLAGAB tax credits”.
207
After section 1223 insert —
Exception for basic life assurance and general annuity business
1223A
1
Sections 1219 to 1223 do not apply in relation to an accounting period of an insurance company with investment business so far as the business consists of basic life assurance and general annuity business.
2
See instead the rules set out in Chapter 3 of Part 2 of FA 2012.
208
1
Section 1251 (car hire) is amended as follows.
2
In subsection (3), after “subsection (2)” insert “(including as applied by section 82 (4) of FA 2012)”.
3
In subsection (5) —
a
at the end of paragraph (a) insert “or”, and
b
omit paragraph (c) (together with the “or” before that paragraph).
209
In section 1288(4) (unpaid remuneration) —
a
in paragraph (a), after “business),” insert “including as applied by section 82 of FA 2012”, and
b
omit paragraph (b) (together with the “and” before it).
210
1
Section 1297 (life assurance business) is amended as follows.
2
In subsection (1), for “section 76 of ICTA applies (expenses of companies carrying on life assurance business)” substitute “the I - E rules apply”.
3
In subsection (2), for “section 86 of FA 1989” substitute “section 79 of FA 2012”.
4
In subsection (4) —
a
for “purposes of section 86 of FA 1989” substitute “purpose of calculating the adjusted BLAGAB management expenses of the company for the purposes of section 73 of FA 2012”, and
b
for “payable for that period which fall to be included at Step 1 in section 76(7) of ICTA” substitute “debited, in accordance with generally accepted accounting practice, in the accounts drawn up by the company for that period”.
5
In subsection (5)(a), for “an amount being brought into account under section 76 of ICTA as expenses payable” substitute “an amount constituting ordinary BLAGAB management expenses of the company for the purposes of section 76 of FA 2012”.
6
For the heading substitute “ Basic life assurance and general annuity business ”.
211
In section 1298(2) (business entertainment and gifts), for paragraph (c) substitute —
c
expenses to which this section applies are not to be regarded as constituting ordinary BLAGAB management expenses of the company for the purposes of section 76 of FA 2012.
212
In section 1304 (crime-related payments), for subsection (3) substitute —
3
Expenses to which subsection (4) or (5) applies are not to be regarded as constituting ordinary BLAGAB management expenses of a company for the purposes of section 76 of FA 2012.
213
1
Schedule 2 (transitionals and savings) is amended as follows.
2
In paragraph 139 —
a
in sub-paragraph (3), for the words from “Section 76ZE” to “section 75)” substitute “Section 81 (4) of FA 2012 (which, in the case of companies carrying on basic life assurance and general annuity business, applies section 75(2) to (4))”,
b
in that sub-paragraph, for “condition in subsection (1) of that section” substitute “conditions in paragraphs (a) and (b) of that subsection”, and
c
in sub-paragraph (4), for “and section 76ZE of ICTA” substitute “(including as applied by section 81 (4) of FA 2012)”.
3
In paragraph 140(1)(b), for “section 76ZL of ICTA” substitute “the application by section 82 of FA 2012 of section 1249(1) to (3) of this Act”.
214
In Schedule 4 (index of defined expressions) —
a
in the entry for “basic life assurance and general annuity business”, for “section 431F of ICTA (as applied by section 431(2) of that Act)” substitute “sections 57 and 67 (5) of FA 2012 (as applied by section 141 (2) of that Act)”,
b
omit the entry for “deposit back arrangements”,
c
omit the entry for “gross roll-up business”,
d
in the entry for “the I minus E basis”, for “I minus E basis” substitute “I - E rules” and for “section 431(2) of ICTA” substitute “section 70 (1) and (2) of FA 2012 (as applied by section 141 (2) of that Act)”,
e
in the entry for “insurance business transfer scheme”, for “section 431(2) of ICTA” substitute “section 139 (1) of FA 2012 (as applied by section 141 (2) of that Act)”,
f
in the entry for “insurance company”, for “section 431(2) of ICTA” substitute “section 65 of FA 2012 (as applied by section 141 (2) of that Act)”,
g
omit the entry for “the Insurance Prudential Sourcebook”,
h
in the entry for “life assurance business”, for “section 431(2) of ICTA” substitute “section 56 of FA 2012 (as applied by section 141 (2) of that Act)”,
i
omit the entry for “linked assets”,
j
in the entry for “long-term business”, for “section 431(2) of ICTA” substitute “section 63 of FA 2012 (as applied by section 141 (2) of that Act)”,
k
omit the entry for “long-term insurance fund”,
l
in the entry for “overseas life insurance company”, for “section 431(2) of ICTA” substitute “section 139 (1) of FA 2012 (as applied by section 141 (2) of that Act)”, and
m
omit the entry for “qualifying overseas transfer”.
Corporation Tax Act 2010
215
CTA 2010 is amended as follows.
216
In section 17(3) (interpretation of Chapter: meaning of “carried-forward amount”) —
a
in paragraph (f), for “section 76(12) or (13) of ICTA (certain expenses of insurance companies)” substitute “section 73 or 93 of FA 2012 for use at step 5 in section 76 of that Act (the I - E basis for insurance companies)”, and
b
omit paragraph (g).
217
In section 54(2) (non-UK resident company: receipts of interest, dividends or royalties), for the words from “any of these provisions — ” to the end substitute “section 37 or 45”.
218
In Chapter 4 of Part 4 (property losses), after section 67A insert —
Insurance companies
Exclusion in the case of property businesses of insurance companies
67B
1
This Chapter does not apply for the purpose of applying the I - E rules in relation to a loss made by an insurance company in any of its separate UK property businesses or overseas property businesses within section 86 (4) of FA 2012.
2
But in the case of a loss which is referable, in accordance with Chapter 4 of Part 2 of that Act, to the company’s basic life assurance and general annuity business, see section 87 (3) and (4) of that Act.
219
In section 606(5) (groups), in the definition of “insurance company”, for “section 431(2) of ICTA” substitute “section 65 of FA 2012”.
220
1
Section 783 (treatment of payer of manufactured dividend) is amended as follows.
2
In subsection (6), for the words from “as if” to the end substitute “for the purposes of section 76 of FA 2012 as a deemed BLAGAB management expense for the accounting period in which it is paid.”
3
In subsection (7) —
a
in paragraph (a), for “under section 432A of ICTA” substitute “in accordance with Chapter 4 of Part 2 of FA 2012”, and
b
in paragraph (b), for “under section 432A of ICTA” substitute “in accordance with that Chapter”.
221
1
Section 785 (treatment of payer: REITs) is amended as follows.
2
In subsection (4), for the words from “as if” to the end substitute “for the purposes of section 76 of FA 2012 as a deemed BLAGAB management expense for the accounting period in which it is paid.”
3
In subsection (5)(b), for “under section 432A of ICTA” substitute “in accordance with Chapter 4 of Part 2 of FA 2012”.
222
1
Section 791 (treatment of payer of manufactured overseas dividend) is amended as follows.
2
In subsection (6), for the words from “as if” to the end substitute “for the purposes of section 76 of FA 2012 as a deemed BLAGAB management expense for the accounting period in which it is paid.”
3
In subsection (7) —
a
in paragraph (a), for “under section 432A of ICTA” substitute “in accordance with Chapter 4 of Part 2 of FA 2012”, and
b
in paragraph (b), for “under section 432A of ICTA” substitute “in accordance with that Chapter”.
223
In section 799(5) (manufactured payments under arrangements with unallowable purpose), for paragraph (a) substitute —
a
section 77 (4)(e) or (f) of FA 2012 (ordinary BLAGAB management expenses: excluded amounts),
.
224
In section 835(2) (transferor or associate becomes liable for payment of rent), for paragraph (c) substitute —
c
a deduction is allowed for the payment by taking it into account in the calculation at step 1 of section 76 of FA 2012 (management expenses of insurance companies carrying on basic life assurance and general annuity business).
225
In section 836(2) (transferor or associate becomes liable for payment other than rent), for paragraph (c) substitute —
c
a deduction is allowed for the payment by taking it into account in the calculation at step 1 of section 76 of FA 2012 (management expenses of insurance companies carrying on basic life assurance and general annuity business).
226
1
Section 839 (deduction under section 76 of ICTA not to exceed commercial rent) is amended as follows.
2
In subsection (1), for “the deduction under section 76 of ICTA allowed for” substitute “the amount to be taken into account as mentioned in section 835(2)(c) or 836(2)(c) in respect of”.
3
In subsection (3), for “The deduction” substitute “The amount of the payment to be taken into account”.
4
In the heading, omit “ under section 76 of ICTA ”.
227
1
Section 840 (carrying forward parts of payments) is amended as follows.
2
In subsection (2), for “allowed as a deduction under section 76 of ICTA is not allowed” substitute “taken into account as mentioned in section 835(2)(c) or 836(2)(c) is not taken into account”.
3
In subsection (4), for “a deduction under section 76 of ICTA” substitute “the calculation at step 1 of section 76 of FA 2012”.
4
In subsection (5), for “allowed as a deduction under section 76 of ICTA” substitute “taken into account in the calculation at step 1 of section 76 of FA 2012”.
228
In section 860 (relevant corporation tax relief), for paragraph (d) (but not the “and” at the end of that paragraph) substitute —
d
a deduction of an amount which for the purposes of section 73 of FA 2012 is an amount of adjusted BLAGAB management expenses of an insurance company for an accounting period,
.
229
In section 886 (relevant tax relief), for paragraph (c) substitute —
c
a deduction of an amount which for the purposes of section 73 of FA 2012 is an amount of adjusted BLAGAB management expenses of an insurance company for an accounting period,
.
230
In section 1171(2) (powers under orders and regulations excluded from general provision) —
a
omit the “and” before paragraph (g), and
b
after that paragraph insert
, and
h
Parts 2 and 3 of FA 2012.
231
In section 1173(2) (miscellaneous charges), in Part 3 of the table, omit —
a
the entry relating to section 436A(1) of ICTA,
b
the entry relating to section 442A(1) of ICTA,
c
the entry relating to section 85(1) of FA 1989, and
d
the entry relating to section 85A(1) of FA 1989.
Taxation (International and Other Provisions) Act 2010
232
TIOPA 2010 is amended as follows.
233
In section 43(7) (profits attributable to permanent establishments for purposes of section 42(2)), omit “(within the meaning given by section 431(2) of ICTA)”.
234
In section 72(2) (application of section 73(1)), omit paragraph (b) (together with the “or” before it).
235
In section 96(1) (companies with overseas branches: restriction of credit) —
a
omit “or section 436A of ICTA”,
b
omit “, calculated in accordance with the provisions applicable for the purposes of section 35 of CTA 2009,” and
c
for “life assurance business or gross roll-up business” substitute “non-BLAGAB long-term business”.
236
For section 97 substitute —
Companies with more than one category of business: restriction of credit
97
1
This section applies if —
a
an insurance company carries on more than one category of long-term business in an accounting period, and
b
there arises to the company in that period any income or gain (“the relevant income”) in respect of which credit for foreign tax is to be allowed under the arrangements.
2
The amount of the credit for foreign tax which, under the arrangements, is allowable against corporation tax in respect of so much of the relevant income as is referable, in accordance with Part 2 of FA 2012, to a particular category of business must not exceed the fraction of the foreign tax which, in accordance with subsection (3) , is attributable to that category of business.
3
The fraction of the foreign tax that is attributable to the category of business in question is the fraction given by —
RPRI TRI
where —
RPRI is the amount of the relevant income referable to the category of business in question in accordance with section 97A, and
TRI is the total amount of the relevant income.
Commercial allocation of relevant income to different categories of long-term business
97A
1
The amount of the relevant income that, for the purposes of section 97, is to be regarded as referable to a category of business is to be determined in accordance with an acceptable commercial method adopted by the company for the period of account in which the relevant income arises.
2
A method is an “acceptable commercial method” if, in all the circumstances, it can reasonably be regarded as providing a fair method for the purposes of section 97 for determining for a period of account the amount of any income or gain arising in the period that is referable to a particular category of long-term business carried on by the company.
3
The Treasury may make regulations for the purposes of this section —
a
prescribing cases in which a method is, or is not, to be regarded as an acceptable commercial method, and
b
prescribing cases in which the only acceptable commercial method is to be a method prescribed, or of a description prescribed, in the regulations.
4
Subject to any provision made by regulations under subsection (3) , the method adopted for the purposes of this section for a period of account must be consistent with the method adopted for the purposes of section 98 or 115 of FA 2012 for that period.
237
Omit section 98 (attribution for section 97 purposes if category is gross roll-up business).
238
In section 99(7) (allocation of expense etc in calculations under section 35 of CTA 2009), for “98” substitute “97A”.
239
Omit section 102 (interpreting sections 99 to 101 for life assurance or gross roll-up business).
240
1
Section 103 (interpreting sections 99 to 101 for other insurance business) is amended as follows.
2
In subsection (1), omit the words from “if” to the end.
3
In the heading, omit “ for other insurance business ”.
241
In section 104(3) (interpreting sections 100 and 101: amounts referable to category of business), for “98” substitute “97A”.
242
In section 269(6) (insurance activities and insurance-related activities), in the definition of “contract of insurance”, for “has the same meaning as in Chapter 1 of Part 12 of ICTA” substitute “has the meaning given by section 64 of FA 2012”.
243
In section 310(2) (meaning of “carried-forward amount”) —
a
in paragraph (a), for “section 76(12) or (13) of ICTA (certain expenses of insurance companies)” substitute “section 73 or 93 of FA 2012 for use at step 5 in section 76 of that Act (the I - E basis for insurance companies)”, and
b
omit paragraph (b).
244
In Part 1 of Schedule 11 (index of defined expressions used in Parts 2 and 3 of Act), insert the following entries at the appropriate places —
insurance company section 65 of FA 2012 (as applied by section 141 (2) of that Act)
long-term business section 63 of FA 2012 (as applied by section 141 (2) of that Act)
Finance Act 2011
245
FA 2011 is amended as follows.
246
In paragraph 73(2) of Schedule 19 (bank levy: meaning of “excluded entity”), for “meaning given by section 431(2) of ICTA” substitute “meanings given by sections 65 and 139 of FA 2012 respectively”.
PART 4
Consequential repeals
247
In consequence of the amendments made by Parts 1 to 3 of this Schedule (or previous amendments made by other enactments), omit the following provisions —
a
in FA 1989 —
i
section 84(4), and
ii
Schedule 8,
b
in FA 1990 —
i
sections 41 and 42,
ii
section 45(1) to (7) and (9) to (11),
iii
section 48,
iv
paragraphs 1, 4 and 8 of Schedule 6,
v
Schedule 7, and
vi
paragraphs 4 and 7 of Schedule 9,
c
in FA 1991 —
i
paragraphs 5 and 12 of Schedule 7, and
ii
paragraph 15 of Schedule 15,
d
in TCGA 1992, paragraph 14(22) to (24) of Schedule 10,
e
in FA 1993, section 103(1) and (3),
f
in FA 1995 —
i
section 51,
ii
Schedule 8, and
iii
paragraph 1 of Schedule 9,
g
in FA 1996 —
i
section 163,
ii
section 167(3) and (10),
iii
section 168(2),
iv
paragraph 23 of Schedule 14,
v
Schedule 31, and
vi
Schedule 33,
h
in FA 1997, section 67,
i
in FA 1998 —
i
section 123(5)(a), and
ii
paragraph 39 of Schedule 5,
j
in FA 2000, sections 108 and 109,
k
in FA 2003, paragraphs 1, 2, 5, 8, 10, 12, 20, 22 to 24 and 29 of Schedule 33,
l
in FA 2004 —
i
sections 40 and 41,
ii
section 44,
iii
Schedule 6,
iv
paragraphs 5, 8 and 9(2) of Schedule 7, and
v
paragraph 20 of Schedule 35,
m
in F(No.2)A 2005, paragraphs 1 to 3, 5, 10, 12 to 15, 17 and 18 of Schedule 9,
n
in ITTOIA 2005, paragraphs 176 and 178 of Schedule 1,
o
in FA 2006 —
i
section 86, and
ii
Schedule 11,
p
in FA 2007 —
i
paragraphs 3, 6, 8 to 14, 16, 17, 19, 21 to 23, 25, 26, 31 to 33, 35 to 38, 57 to 59 and 80 to 84 of Schedule 7,
ii
paragraphs 2 to 6, 8, 9, 11 to 16, 28 and 29 of Schedule 8,
iii
paragraphs 1(1) and (3), 3(1) and (3), 4 to 8, 10, 11(3), 12, 15 and 16 of Schedule 9, and
iv
paragraphs 2(1), 4, 11 to 13 and 15(1) to (3) of Schedule 10,
q
in FA 2008 —
i
paragraph 2 of Schedule 14, and
ii
paragraphs 1, 2, 4 to 6, 8, 9(2) and (3), 10, 11, 17, 18, 20 to 22, 26, 28(3) and (4), 31 to 34 and 37 of Schedule 17,
r
in CTA 2009, paragraphs 30 to 44, 126 to 154, 282, 307(3)(a) and 341 to 351 of Schedule 1,
s
in FA 2009 —
i
section 46,
ii
paragraph 24 of Schedule 7,
iii
paragraph 60 of Schedule 11, and
iv
paragraphs 1 to 7 of Schedule 23,
t
in CTA 2010, paragraphs 9, 10, 42 to 51, 213 and 214 of Schedule 1,
u
in FA 2010, section 47,
v
in F(No.2)A 2010, section 9,
w
in F(No.3)A 2010, section 15,
x
in TIOPA 2010, paragraph 34 of Schedule 8, and
y
in FA 2011, section 56.
SCHEDULE 17
Part 2: transitional provision
Section 147
PART 1
Deemed receipts or expenses
General outline of the provision of this Part of this Schedule
1
1
This Part of this Schedule makes provision, by reference to the 2012 balance sheet and the 2012 periodical return of an insurance company (see paragraphs 2 to 4 ), for deeming amounts to be receipts or expenses of basic life assurance and general annuity business, or non-BLAGAB long-term business, carried on by the company (see paragraphs 9(1) and (2) and 10(1) and (2) ).
2
Those amounts are determined in accordance with provision made by or under paragraphs 5 to 8 .
3
The deeming is to have effect for the purpose of calculating the BLAGAB trade profit or loss or (as the case may be) for the purpose of calculating for corporation tax purposes the profits of the non-BLAGAB long-term business (see paragraphs 9(3) and 10(3) ).
4
The general rule is that, subject to exceptions, the receipts or expenses are treated as arising over a 10-year period (see paragraphs 11 to 15 ).
5
Special provision is made in relation to the operation of sections 83YC to 83YF of FA 1989 (see paragraph 16 ).
6
Anti-avoidance provision is made by paragraphs 17 to 19 .
7
Provision in relation to overseas life insurance companies is made by paragraph 20 .
Basic concepts
2
In this Part of this Schedule —
“the 2012 balance sheet”, in relation to an insurance company, means —
an actual balance sheet of the company drawn up as at the end of 31 December 2012 in accordance with generally accepted accounting practice, or
a deemed balance sheet of the company under paragraph 3 , and
“the 2012 periodical return”, in relation to an insurance company, means —
an actual periodical return of the company covering a period ending immediately before 1 January 2013, or
a deemed periodical return of the company under paragraph 4 .
3
1
This paragraph applies if an insurance company does not have a balance sheet drawn up as at the end of 31 December 2012 in accordance with generally accepted accounting practice.
2
For the purposes of this Part of this Schedule the company is deemed to have drawn up a balance sheet as at the end of 31 December 2012 in accordance with generally accepted accounting practice.
3
For the purposes of this Part of this Schedule the entries shown in this deemed balance sheet are deemed to be those entries which would have been shown in an actual balance sheet of the company drawn up as mentioned in sub-paragraph (1) .
4
The generally accepted accounting practice that is to be applicable for the purposes of sub-paragraphs (2) and (3) is the practice that is actually adopted for the accounts of the company drawn up for the period in which 31 December 2012 falls.
4
1
This paragraph applies if an insurance company does not have a periodical return covering a period ending immediately before 1 January 2013.
2
For corporation tax purposes the company is deemed to have a periodical return covering the period —
a
beginning immediately after the last period ending before 1 January 2013 that is covered by a periodical return of the company, and
b
ending immediately before 1 January 2013.
3
This deemed periodical return is deemed to contain such entries as would be included in an actual periodical return of the company covering the period beginning and ending as mentioned in sub-paragraph (2)(a) and (b) .
4
For corporation tax purposes the period beginning and ending as mentioned in sub-paragraph (2)(a) and (b) is deemed to be a period of account of the company.
The comparison etc
5
1
In the case of an insurance company, a comparison must be made between —
a
the amount attributed to shareholders as at 31 December 2012 (see sub-paragraphs (2) to (4) ), and
b
the cumulative taxed surplus as at 31 December 2012 (see sub-paragraph (5) and (6) ).
2
The amount attributed to shareholders as at 31 December 2012 is —
a
the amount shown in line 75 of Form 14 of the 2012 periodical return in respect of the whole of the company’s long-term business, less
b
the amount (if any) shown in the 2012 balance sheet of the company in respect of the fund for future appropriations or unallocated divisible surplus.
3
In prescribed cases the amount attributed to shareholders as at 31 December 2012 is to be found by making prescribed adjustments to the amount found by sub-paragraph (2)(a) and (b) .
4
In sub-paragraph (3) “prescribed” means prescribed, or of a description prescribed, by regulations made by the Treasury.
The regulations may be made so as to have effect in relation to any period beginning before but ending on or after the day on which the regulations are made (as well as in relation to periods no part of which falls before that day).
5
The cumulative taxed surplus as at 31 December 2012 is found by adding together the amounts (if any) found by the following paragraphs —
a
the amount shown in line 13 of Form 14 of the 2012 periodical return in respect of the whole of the company’s long-term business but excluding the amount representing any undistributed demutualisation surplus of the company for the period of account ending immediately before 1 January 2013, and
b
the total amount brought into account for any period of account of the company as a result of section 83YA(3) of FA 1989 less the total amount brought into account for any period of account as a result of section 83YA(4) of FA 1989 (changes in value of assets brought into account: non-profit companies).
6
In sub-paragraph (5)(a) “undistributed demutualisation surplus” means the undistributed demutualisation surplus of the company for the period of account in question for the purposes of section 444AF of ICTA.
7
The difference between the amount attributed to shareholders as at 31 December 2012 and the cumulative taxed surplus as at 31 December 2012 is referred to in this Part of this Schedule as “the total transitional difference”.
8
If the amount attributed to shareholders as at 31 December 2012 exceeds the cumulative taxed surplus as at 31 December 2012, the total transitional difference is a positive figure.
9
If the cumulative taxed surplus as at 31 December 2012 exceeds the amount attributed to shareholders as at 31 December 2012, the total transitional difference is a negative figure.
6
1
The insurance company —
a
must, by comparing amounts shown in the 2012 periodical return with amounts shown in the 2012 balance sheet, determine the particular items that, when taken together, result in the total transitional difference, and
b
must allocate a positive or negative amount to each of those items.
2
The positive or negative amounts allocated to those items in accordance with this paragraph must, when added together, equal the total transitional difference.
3
The Treasury may make regulations prescribing —
a
the way in which the comparison or determination under sub-paragraph (1)(a) must be done, and
b
the method for making the allocation under sub-paragraph (1)(b) .
4
The provision that may be made by regulations under sub-paragraph (3)(a) includes provision prescribing descriptions of amounts which are, or are not, to be compared with each other.
7
1
Each of the items determined in accordance with paragraph 6(1)(a) is a “relevant computational item” for the purposes of this Part of this Schedule except in so far as it consists of an excluded item.
2
An item is “an excluded item” in so far as it —
a
represents an amount forming part of the company’s deferred acquisition costs which is included in its 2012 balance sheet and which has been taken into account in calculating its life assurance trade profits,
b
represents an amount which is included in the company’s 2012 balance sheet as an asset in respect of the value of future profits arising from a business (or part of a business) transferred to the company (but excluding an asset so far as it is regarded for accounting purposes as internally-generated),
c
represents an outstanding contingent loan or an outstanding re-insurance amount,
d
represents an asset to which Part 8 of CTA 2009 (intangible fixed assets) applies for an accounting period of the company beginning on or after 1 January 2013, or
e
falls within a description of item excluded for the purposes of this paragraph by regulations made by the Treasury.
3
In sub-paragraph (2) (c) “outstanding contingent loan” means the total amount of the credits brought into account by the company as part of total income —
a
for the period of account ending immediately before 1 January 2013, or
b
for any earlier period of account,
in respect of money debts so far as those debts have not been repaid before that date.
4
In sub-paragraph (2) (c) “outstanding re-insurance amount” means the total of the amounts which would (but for section 83YF(2) of FA 1989) have been taken into account in calculating the company’s life assurance trade profits —
a
for the period of account ending immediately before 1 January 2013, or
b
for any earlier period of account,
in respect of the re-insurance of relevant liabilities (within the meaning of section 83YC of FA 1989) to the extent that they have not ceased to be re-insured before that date.
5
In this paragraph “life assurance trade profits” means profits arising from life assurance business calculated in accordance with the provisions applicable for the purposes of the taxation of such profits under section 35 of CTA 2009 (charge on trade profits).
6
For any accounting period beginning on or after 1 January 2013, an amount is not to be taken into account —
a
in calculating the BLAGAB trade profit or loss of any basic life assurance and general annuity business, or
b
in calculating for corporation tax purposes the profits of non-BLAGAB long-term business,
in so far as the amount consists of an excluded item as a result of falling within sub-paragraph (2) (a) to (d) or, in a case where the regulations provide for the application of this sub-paragraph, within sub-paragraph (2) (e) .
8
1
Each relevant computational item must be apportioned between —
a
any basic life assurance and general annuity business carried on by the company as at 31 December 2012,
b
any gross roll-up business carried on by the company as at that date, and
c
any PHI business carried on by the company as at that date.
2
The Treasury may make regulations for apportioning for the purposes of this Part of this Schedule relevant computational items between those businesses (including provision for the whole amount of a relevant computational item to be apportioned to one of those businesses).
3
A relevant computational item (or a part of a relevant computational item) allocated in accordance with this paragraph to the company’s basic life assurance and general annuity business or gross roll-up business is dealt with in accordance with paragraph 9 or 10 .
4
But a relevant computational item (or a part of a relevant computational item) allocated in accordance with this paragraph to the company’s PHI business is ignored in the application of the remaining provisions of this Part of this Schedule.
Deemed receipts or expenses of BLAGAB or non-BLAGAB long-term business
9
1
If a relevant computational item (or a part of a relevant computational item) allocated in accordance with paragraph 8 to the company’s basic life assurance and general annuity business is a positive amount, the item (or part of the item) is to be treated as a receipt of that business.
2
If a relevant computational item (or a part of a relevant computational item) allocated in accordance with paragraph 8 to the company’s basic life assurance and general annuity business is a negative amount, the item (or part of the item) is to be treated as an expense of that business.
3
Receipts and expenses within this paragraph are to be taken into account, in accordance with the provisions of this Part of this Schedule, in calculating the BLAGAB trade profit or loss of that business for accounting periods beginning on or after 1 January 2013.
4
Receipts within this paragraph are to count as excluded receipts for the purposes of section 92.
10
1
If a relevant computational item (or a part of a relevant computational item) allocated in accordance with paragraph 8 to the company’s gross roll-up business is a positive amount, the item (or part of the item) is to be treated as a receipt of the company’s non-BLAGAB long-term business.
2
If a relevant computational item (or a part of a relevant computational item) allocated in accordance with paragraph 8 to the company’s gross roll-up business is a negative amount, the item (or part of the item) is to be treated as an expense of the company’s non-BLAGAB long-term business.
3
Receipts and expenses within this paragraph are to be taken into account, in accordance with the provisions of this Part of this Schedule, in calculating for corporation tax purposes the profits of the company’s non-BLAGAB long-term business for accounting periods beginning on or after 1 January 2013.
Period over which deemed receipts or expenses arise
11
1
A receipt or expense within paragraph 9 or 10 is to be treated as arising over the period of 10 years beginning with 1 January 2013.
2
The amount of the receipt or expense apportioned to (and treated as arising in) any accounting period falling wholly or partly in that 10-year period is to be determined in proportion to the number of days of the accounting period falling within that 10-year period.
3
This paragraph does not apply to a receipt which consists of a relevant court-protected item within the meaning of paragraph 12 .
4
This paragraph is subject to paragraphs 13 to 15 (transfers and cessation of business etc).
12
1
For the purposes of this paragraph a “relevant court-protected item” means a relevant computational item that relates to an excess of assets over liabilities held in a non-profit fund in respect of which an order made by a court is in force preventing the distribution of the excess (in any circumstances whatever) before the end of a period specified in the order.
2
A receipt within paragraph 9 or 10 consisting of a relevant court-protected item is to be treated as arising over the period of 10 years beginning with the relevant day.
3
The relevant day is whichever of the following days occurs first —
a
the day on which the court order ceases to be in force, or
b
1 January 2015.
4
The amount of the receipt apportioned to (and treated as arising in) any accounting period falling wholly or partly in that 10-year period is to be determined in proportion to the number of days of the accounting period falling within that 10-year period.
5
This paragraph is subject to paragraphs 13 to 15 (transfers and cessation of business etc).
13
1
This paragraph applies if —
a
under an insurance business transfer scheme, there is a transfer from one insurance company to another of basic life assurance and general annuity business (or any part of that business) or non-BLAGAB long-term business (or any part of that business),
b
the transfer is a relevant intra-group transfer, and
c
the transfer occurs at a time when the full amount of the receipts or expenses within paragraph 9 or 10 of the business the whole or part of which is transferred has not been treated as arising.
2
A transfer is a “relevant intra-group transfer” for the purposes of this paragraph if —
a
the transferor and the transferee are members of the same group of companies when the transfer occurs (as determined in accordance with section 170(2) to (11) of TCGA 1992), and
b
the transferee is within the charge to corporation tax in relation to the transfer.
3
The receipts or expenses are to continue to be dealt with in accordance with the provisions of this Schedule, but are treated as arising to the transferee over so much of the 10-year period in question as falls on or after the date on which the transfer takes place.
4
If only part of a business is transferred —
a
the appropriate proportion of the receipts or expenses is treated as arising to the transferee over so much of the 10-year period in question as falls on or after the date on which the transfer takes place, and
b
the remainder of the receipts or expenses is treated as arising to the transferor over so much of that period.
5
The appropriate proportion of the receipts or expenses of a business is equal to the proportion which the value of the liabilities relating to the part of the business transferred bears to the total value of the liabilities of the whole of the business.
6
For the purposes of this paragraph and paragraphs 11 and 12 the accounting periods of the transferor and the transferee in which the transfer takes place are deemed to end immediately before the transfer takes place.
14
1
This paragraph applies if —
a
under an insurance business transfer scheme, there is a transfer from one insurance company to another of basic life assurance and general annuity business (or any part of that business) or non-BLAGAB long-term business (or any part of that business),
b
the transfer is not a relevant intra-group transfer for the purposes of paragraph 13 , and
c
the transfer occurs at a time when the full amount of the deemed receipts or expenses of the relevant business has not been treated as arising to the transferor.
2
The remaining amount of the deemed receipts or expenses of the relevant business is to be treated as arising to the transferor in the accounting period in which the transfer takes place.
3
In this paragraph references to the deemed receipts or expenses of the relevant business —
a
are references to the receipts or expenses within paragraph 9 or 10 of the business the whole or part of which is transferred, but
b
do not include references to so much of those receipts or expenses as fall (or have fallen) to be treated as arising to a company other than the company which is the transferor for the purposes of this paragraph.
15
1
This paragraph applies if —
a
an insurance company ceases at any time to carry on basic life assurance and general annuity business or non-BLAGAB long-term business otherwise than as a result of a transfer under an insurance business transfer scheme, and
b
at that time the full amount of the deemed receipts or expenses of the business concerned has not been treated as arising to the company.
2
The remaining amount of the deemed receipts or expenses of the business concerned is to be treated as arising to the company in the accounting period in which it ceases to carry on the business concerned.
3
For the purposes of this paragraph an insurance company is to be regarded as ceasing to carry on a business at any time if, at that time, it ceases to be within the charge to corporation tax in relation to the business.
4
In this paragraph references to the deemed receipts of the business concerned —
a
are references to the receipts or expenses within paragraph 9 or 10 of the business concerned, but
b
do not include references to so much of those receipts or expenses as fall (or have fallen) to be treated as arising to a company other than the company concerned.
Financing-arrangement-funded transfers to shareholders in relation to non-profit funds
16
1
This paragraph applies if, as at 1 January 2013, an insurance company has an unrelieved charge under subsection (3) of section 83YC of FA 1989 (FAFTS: charge in relevant period of account).
2
An insurance company has, as at that date, an unrelieved charge under that subsection if either —
a
that subsection has operated in the case of the company for the period of account ending immediately before that date (“the 2012 period of account”), or
b
that subsection has operated in the case of the company for one or more earlier periods of account, and the total of the amounts which are the relevant amount for the 2012 period of account or those earlier periods under section 83YD of FA 1989 does not exceed the amount which is the taxed amount under that section.
3
The appropriate amount of the unrelieved charge is to be treated for the purposes of this Part of this Schedule as if it were a relevant computational item of a negative amount.
4
The appropriate amount of the unrelieved charge is whichever is the smaller of —
a
in a case within sub-paragraph (2)(a) , the amount brought into account under section 83YC(3) of FA 1989, or, in a case within sub-paragraph (2)(b) , the amount by which the taxed amount mentioned there exceeds the relevant amount mentioned there, and
b
the sum of the outstanding debt amount and the outstanding re-insurance amount.
5
“The outstanding debt amount” means the total amount of the credits brought into account by the company in relation to a non-profit fund for the purposes of section 83YC of FA 1989 as part of total income —
a
for the 2012 period of account, or
b
for any earlier period of account,
in respect of relevant money debts to the extent that they have not been repaid before that date.
6
“The outstanding re-insurance amount” means the total of the amounts which would (but for section 83YF(2) of FA 1989) have been taken into account in calculating the profits of the company’s life assurance business in accordance with the life assurance trade profits provisions —
a
for the 2012 period of account, or
b
for any earlier period of account,
in respect of the re-insurance of relevant liabilities to the extent that they have not ceased to be re-insured before that date.
7
Any expression which is used in this paragraph and in section 83YC of FA 1989 has the same meaning in this paragraph as in that section.
8
In this paragraph references to sections 83YC and 83YD of FA 1989 include references to those sections as they have effect in accordance with paragraph 4(2) to (6) of Schedule 17 to FA 2008.
Anti-avoidance
17
1
This paragraph applies if —
a
on or after 21 March 2012 an insurance company (“C”) enters into any arrangements or does any other thing directly or indirectly for the purposes of, or in connection with, the operation of the transitional rules, and
b
the main purpose, or one of the main purposes, of C in entering into the arrangements or doing the other thing is an unallowable purpose.
2
A purpose is an “unallowable purpose” if —
a
it consists of securing a tax advantage for C or any other company which is connected to the operation of the transitional rules, or
b
it is not amongst C’s business or other commercial purposes.
3
If a tax advantage connected to the operation of the transitional rules arises to C, an officer of Revenue and Customs may make such adjustments as are required to negate the tax advantage so far as referable to the unallowable purpose on a just and reasonable apportionment.
4
If a tax advantage connected to the operation of the transitional rules arises to a company other than C, an officer of Revenue and Customs may make such adjustments as are required to negate the tax advantage.
5
The power to make adjustments under this paragraph includes power to make adjustments by any of the following means —
a
an amendment of the company’s tax return under paragraph 34(2) or (2A) of Schedule 18 to FA 1998 (amendment after enquiry),
b
an assessment,
c
the nullifying of a right to repayment,
d
the requiring of the return of a repayment already made, and
e
the calculation or recalculation of profits or gains or liability to corporation tax.
6
Nothing in this paragraph authorises the making of an assessment later than 6 years after the accounting period to which the tax advantage relates.
7
For the purposes of this paragraph —
a
“arrangement” includes any agreement, scheme, transaction or understanding (whether or not legally enforceable),
b
the reference to the operation of the transitional rules is a reference to the operation of any provision made by or under this Part of this Schedule,
c
one example (among others) of entering into arrangements or otherwise doing something for the purposes of, or in connection with, the operation of those rules is entering into the arrangements or otherwise doing the thing to secure that an item is, or is not, taken into account in calculating the total transitional difference, and
d
section 1139 of CTA 2010 (meaning of “tax advantage”) applies, but reading references to tax as references to corporation tax.
8
If C is not within the charge to corporation tax in respect of a part of its activities, C’s business or other commercial purposes for the purposes of this paragraph do not include the purposes of that part of its activities.
9
This paragraph does not apply in any case if section 132 applies in that case.
18
1
Paragraph 17 does not apply if, on an application by C, HMRC Commissioners give a notice under this paragraph stating that they are satisfied that the doing of the relevant things is or will be such that no action ought to be taken by an officer of Revenue and Customs under that paragraph.
2
The reference here to the doing of the relevant things is a reference to the entering into of any arrangements, or the doing of any other thing, directly or indirectly for the purposes of, or in connection with, the operation of the transitional rules (within the meaning of paragraph 17 ).
19
1
An application under paragraph 18 must —
a
be in writing, and
b
contain particulars of the arrangements or the thing done or proposed to be done.
2
HMRC Commissioners may by notice require C to provide further particulars in order to enable them to determine the application.
3
A requirement may be imposed under sub-paragraph (2) within 30 days of the receipt of the application or of any further particulars required under that sub-paragraph.
4
If a notice under that sub-paragraph is not complied with within 30 days or such longer period as HMRC Commissioners may allow, they need not proceed further on the application.
5
HMRC Commissioners must give notice to C of their decision on an application under paragraph 18 —
a
within 30 days of receiving the application, or
b
if they give a notice under sub-paragraph (2) , within 30 days of that notice being complied with or within such longer period as may be agreed with C.
6
If any particulars provided under this paragraph do not fully and accurately disclose all facts and considerations material for the decision of HMRC Commissioners, any resulting notice under paragraph 18 is void.
Overseas life insurance companies
20
Receipts or expenses are not to be treated as arising under this Part of this Schedule in a case where —
a
an overseas life insurance company has, in accordance with international accounting standards, prepared accounts for a period which includes 31 December 2012, and
b
parts of the income statements included in those accounts are recognised for the purposes of sections 82A to 83ZA of FA 1989 as a result of provision made by regulation 24 of the Overseas Life Insurance Companies Regulations 2006.
PART 2
Specific transitional provisions
Insurance company with BLAGAB consisting wholly of protection business
21
1
This paragraph applies if —
a
in its first accounting period to which this Part applies an insurance company carries on business which, under the old law, would have been basic life assurance and general annuity business,
b
the business in question consists wholly of the effecting or carrying out of contracts of long-term insurance in relation to which the condition in section 62 (2)(a) is met, and
c
some or all of the contracts are made before 1 January 2013.
2
On or before the filing date for that accounting period, the company may make an election for the contracts made before that date to be treated for the purposes of section 62 as if they were made on or after that date.
3
Accordingly, no relief is available for any amount that, but for the election, would have constituted excess BLAGAB expenses for that accounting period.
4
The election has effect for the first accounting period of the company to which this Part applies and all subsequent accounting periods.
5
The election is irrevocable.
6
In this paragraph —
“the filing date”, in relation to an accounting period of an insurance company, means the date which, for the purposes of paragraph 14 of Schedule 18 to FA 1998, is the filing date for the company’s tax return for that period, and
“the old law” means the law as it had effect immediately before the day on which this Act is passed.
Disregard of amounts previously taken into account for tax purposes
22
1
This paragraph applies if, for an accounting period ending before 1 January 2013, an amount is taken into account in calculating the profits of an insurance company arising from life assurance business in accordance with the provisions applicable for the purposes of the taxation of such profits under section 35 of CTA 2009 (charge on trade profits).
2
For any accounting period beginning on or after 1 January 2013 —
a
the amount is not to be taken into account in calculating the BLAGAB trade profit or loss of any basic life assurance and general annuity business carried on by the company, and
b
the amount is not to be taken into account in calculating for corporation tax purposes the profits of any non-BLAGAB long-term business carried on by the company.
23
For the purposes of section 76 an expense is to be treated as deductible under another relevant rule so far as it was brought into account at Step 1 in section 76(7) of ICTA as an expense referable to an accounting period ending before 1 January 2013.
Intangible fixed assets
24
1
This paragraph applies to assets —
a
which, under the old law, were assets excluded from Part 8 of CTA 2009 (intangible fixed assets), and
b
which, as a result of provision made by this Part of this Act, become assets which are not excluded from Part 8 of that Act.
2
Any expenditure incurred before 1 January 2013 on an asset to which this paragraph applies is to be left out of account in determining any amount to be brought into account under Part 8 of CTA 2009.
3
Section 780 of CTA 2009 (company ceasing to be member of group: deemed realisation and re-acquisition at market value) is not to apply in relation to any asset to which this paragraph applies.
4
For the purposes of this paragraph references to an asset’s exclusion from Part 8 of CTA 2009 includes its exclusion from that Part except as respects royalties.
5
In this paragraph “the old law” means the law as it had effect immediately before the day on which this Act is passed.
Assets held for purposes of long-term business
25
1
The rules in sections 116 to 118 apply in relation to anything occurring on or after 1 January 2013 (and the rules in section 440 of ICTA, including as modified, apply in relation to anything occurring before that date).
2
Accordingly, the replacement of the rules in section 440 of ICTA with the different rules in sections 116 to 118 is not by itself sufficient to give rise to a deemed disposal and re-acquisition for the purposes of corporation tax on chargeable gains.
26
1
The rules in sections 119 to 121 apply in relation to securities held on or after 1 January 2013 (and the rules in section 440A of ICTA, including as modified, apply in relation to securities held before that date).
2
The replacement of the separate holdings given by section 440A of ICTA (including as modified) with the separate holdings given by sections 119 to 121 is, for the purposes of corporation tax on chargeable gains, not to be treated as involving a disposal or acquisition that gives rise to a chargeable gain or allowable loss.
3
But see paragraph 27 for provision for carrying forward the base cost of the old holdings into the base cost of the new holdings.
27
1
This paragraph applies if —
a
immediately before 1 January 2013 securities are treated, as a result of section 440A of ICTA (including as modified), as separate holdings of a company for the purposes of corporation tax, and
b
the securities that are comprised in those separate holdings (the “old holdings”) are, as at 1 January 2013, comprised in separate holdings of the company as determined by the rules in sections 119 to 121 (the “new holdings”).
2
Each new holding is treated for the purposes of corporation tax on chargeable gains as if it were a holding of the company with a base cost and an indexation allowance as at 1 January 2013 equal to the total of the base costs and indexation allowances of the old holdings that are carried into the new holding.
3
In the case of securities (“new securities”) comprised in a new holding, the amount of the base cost or indexation allowance of an old holding that is carried into the new holding is equal to the proportion which the new securities derived from the old holding bear to all of the securities comprised in the old holding.
4
For the purpose of calculating the indexation allowance of a new holding in respect of any period falling on or after 1 January 2013, it is to be assumed that, on that date, there had been a disposal of the holding for a consideration of such amount as would secure that on the disposal neither a gain nor a loss would accrue to the company.
5
For the purposes of this paragraph —
a
references to a base cost are —
i
in the case of a section 104 holding, references to the amount of qualifying expenditure within the meaning of section 110 of TCGA 1992, and
ii
in the case of a 1982 holding, references to the amount of expenditure that would fall to be deducted if the holding were disposed of,
b
references to an indexation allowance are —
i
in the case of a section 104 holding, references to the indexation allowance as found in accordance with section 110 of TCGA 1992, and
ii
in the case of a 1982 holding, references to the indexation allowance within the meaning of Chapter 4 of Part 2 of that Act,
c
the base cost and the indexation allowance of an old holding are calculated on the assumption that the holding is disposed of immediately before 1 January 2013,
d
“section 104 holding” has the same meaning as in section 104(3) of TCGA 1992, and
e
“1982 holding” has the same meaning as in section 109 of that Act.
28
1
This paragraph applies in a case where —
a
section 210B(2) to (4) of TCGA 1992 would, but for this Part of this Act, have applied in relation to a disposal and acquisition of section 440A securities, and
b
the identification in accordance with those subsections of the section 440A securities disposed of with the section 440A securities acquired would have involved —
i
identifying securities disposed of before 1 January 2013 with securities acquired on or after that date, or
ii
identifying securities acquired before 1 January 2013 with securities disposed of on or after that date.
2
The securities disposed of are to be identified with the securities acquired (if necessary applying the rules in section 210B(3) and (4) of TCGA 1992 and subject to section 105(1) of that Act), and —
a
in a case within sub-paragraph (1)(b)(i) , the securities acquired are not therefore to be comprised in a separate holding of securities within any of sections 119 to 121 of this Act, and
b
in a case within sub-paragraph (1)(b)(ii) , the securities acquired are not therefore to be regarded as comprised in a separate holding of securities within section 440A of ICTA (including as applied).
3
In this paragraph “section 440A securities” has the same meaning as in section 210B of TCGA 1992.
Carry-forward of trading losses and excess management expenses
29
1
Any unused losses arising to an insurance company in an accounting period ending before 1 January 2013 from gross roll-up business may be relieved in subsequent accounting periods in accordance with section 45 of CTA 2010 (carry forward of trade loss against subsequent trade profits) as if they were losses that had arisen from non-BLAGAB long-term business.
2
For this purpose a loss is “unused” so far as no relief has been given for it under —
a
section 436A of ICTA (including as applied by any provision of Part 2 of Schedule 7 to FA 2007), or
b
any other provision of the Corporation Tax Acts.
30
1
Any unused losses arising to an insurance company in an accounting period ending before 1 January 2013 from PHI business may be relieved in subsequent accounting periods in accordance with section 45 of CTA 2010 as if they were losses that had arisen from non-BLAGAB long-term business.
2
For this purpose a loss is “unused” so far as, but for this Part of this Act, it would have been available for carry forward under section 45 of CTA 2010 for use in relation to profits of the PHI business for subsequent accounting periods.
31
1
The appropriate part of any unused life assurance trade losses arising to an insurance company in an accounting period ending before 1 January 2013 is to be treated for the purposes of section 124 as if it were the unrelieved loss available for relief in subsequent accounting periods in accordance with that section.
2
A “life assurance trade loss” means a loss arising to an insurance company from life assurance business which is calculated in accordance with the life assurance trade profits provisions.
3
A life assurance trade loss is “unused” so far as no relief is given for it under —
a
section 85A or 89 of FA 1989, or
b
any other provision of the Corporation Tax Acts.
4
The “appropriate” part of any unused life assurance trade losses is the amount (if any) by which —
a
the amount of the unused life assurance trade losses, exceeds
b
the amount of unused losses arising to an insurance company in an accounting period ending before 1 January 2013 from gross roll-up business (with the definition of “unused” in paragraph 29(2) applying here).
32
1
This paragraph applies if, but for this Part of this Act, an amount would have been carried forward to an accounting period of an insurance company under section 76(12) or (13) of ICTA (expenses of insurance companies).
2
The amount is to be treated for the purposes of step 5 of section 76 as an expense from a previous accounting period carried forward as a result of section 73 to the accounting period of the company beginning on 1 January 2013.
33
1
This paragraph applies if, but for this Part of this Act, any amount of expenses would, as a result of section 86(8) and (9) of FA 1989 (relief for fraction of acquisition expenses for earlier accounting periods), have been relieved in an accounting period of an insurance company beginning on or after 1 January 2013.
2
Relief is to continue to be given for the expenses in question as follows —
a
the amount of the relief for each accounting period is to be determined in accordance with section 86(8) and (9) of FA 1989 (despite their repeal by this Part of this Act), and
b
the relief is to be given by treating the amount of the expenses as deemed BLAGAB management expenses for the accounting periods in question for the purposes of section 76.
3
But relief is not to be given as a result of sub-paragraph (2) for any expenses for any accounting period (“the period concerned”) if the expenses are reversed in the period concerned or any preceding accounting period.
Relief for BLAGAB trade losses for accounting period beginning on or after 1 January 2013
34
1
This paragraph applies if —
a
an insurance company carries on basic life assurance and general annuity business in an accounting period beginning on or after 1 January 2013, and
b
the company has a BLAGAB trade loss for the accounting period.
2
For the purposes of section 37(6) of CTA 2010 (as applied by section 123) the company is to be treated as carrying on that business in a previous accounting period if the company carried on life assurance business in that period.
Assets of the shareholder fund
35
1
This paragraph applies in relation to assets of an insurance company carrying on life assurance business which were assets of the shareholder fund of the company for the period of account ending immediately before 1 January 2013.
2
Those assets are, in relation to times on or after that date, to be regarded for the purposes of this Part as assets forming part of the long-term business fixed capital of the company (whether or not they would otherwise be so regarded).
3
An asset is an “asset of the shareholder fund of an insurance company for the period of account ending immediately before 1 January 2013” if it is shown in any of lines 11 to 102 of Form 13 in the company’s periodical return ending immediately before that date in respect of assets other than those of its long-term business.
4
But an asset is not to be regarded as an asset of the shareholder fund for that period of account if for any accounting period ending before 1 January 2013 —
a
income arising from the asset was, or chargeable gains or allowable losses accruing on any part disposal of the asset for the purposes of TCGA 1992 were, taken into account for the purposes of the charge to corporation tax on the I minus E basis, or
b
income arising from the asset was taken into account in calculating the profits of the company in respect of its life assurance business in accordance with the provisions applicable for the purposes of the taxation of such profits under section 35 of CTA 2009 (charge on trade profits).
PART 3
Supplementary
General transitional provision in relation to provisions re-enacted in Part 2 of this Act
36
1
This paragraph applies where any provision of this Part of this Act re-enacts (with or without modification) an enactment repealed by this Part of this Act.
2
The repeal and re-enactment does not affect the continuity of the law.
3
Any subordinate legislation or other thing which —
a
has been made or done, or has effect as if made or done, under or for the purposes of the repealed provision, and
b
is in force or effective in relation to accounting periods of insurance companies ending on 31 December 2012,
has effect in relation to subsequent accounting periods of insurance companies as if made or done under or for the purposes of the corresponding provision of this Part of this Act.
4
Any reference (express or implied) in any enactment, instrument or document to a provision of this Part of this Act is to be read as including, in relation to times, circumstances or purposes in relation to which the corresponding repealed provision had effect, a reference to that corresponding provision.
This sub-paragraph applies only so far as the context permits.
5
Any reference (express or implied) in any enactment, instrument or document to a repealed provision is to be read, in relation to times, circumstances or purposes in relation to which the corresponding provision of this Part of this Act has effect, as a reference or (as the context may require) as including a reference to that corresponding provision.
This sub-paragraph applies only so far as the context permits.
6
This paragraph is subject to any specific transitional, transitory or saving provision made by or under this Schedule.
7
The generality of this paragraph is not to be affected by specific transitional, transitory or saving provision made by or under this Schedule.
8
This paragraph has effect instead of section 17(2) of the Interpretation Act 1978.
Power to make supplementary transitional provision etc
37
1
The Treasury may by regulations make further transitional, transitory or saving provision in connection with the coming into force of any of the provisions of this Part of this Act.
2
The provision that may be made by the regulations includes provision (whether by way of textual amendment or otherwise) altering or supplementing the effect of any provision made by or under this Schedule.
3
The regulations may be made so as to have effect in relation to any period beginning before but ending on or after the day on which the regulations are made (as well as in relation to periods no part of which falls before that day).
38
Any regulations made by the Treasury under any provision of this Schedule may —
a
make different provision for different cases or circumstances, and
b
contain incidental, supplementary, consequential, transitional, transitory or saving provision.
Interpretation
39
The following expressions have the same meaning in this Schedule as they have in Chapter 1 of Part 12 of ICTA —
“brought into account” (except in paragraph 24 ),
“gross roll-up business”,
“the I minus E basis”,
“the life assurance trade profits provisions”,
“non-profit fund”,
“period of account”,
“periodical return”, and
“PHI business”.
SCHEDULE 18
Part 3: consequential amendments
Section 176
Income and Corporation Taxes Act 1988
1
ICTA is amended as follows.
2
Omit section 459 (unregistered friendly societies: exemption from tax).
3
Omit section 460 (exemption from tax in respect of life or endowment business).
4
Omit section 461 (taxation in respect of other business).
5
Omit sections 461A to 461C (taxation in respect of other business: incorporated friendly societies qualifying for exemption).
6
Omit section 461D (transfers of business).
7
Omit section 462 (conditions for tax exempt business).
8
Omit section 463 (long-term business of friendly societies: application of Corporation Tax Acts).
9
Omit section 464 (maximum benefits payable to members).
10
Omit section 465 (old societies).
11
Omit section 465A (assets of branch of registered friendly society to be treated as assets of society after incorporation).
12
Omit section 466 (interpretation of Chapter 2 of Part 12).
13
1
Schedule 15 (qualifying policies) is amended as follows.
2
In paragraph 3 —
a
in sub-paragraphs (1) and (4)(c), for “tax exempt life or endowment business” substitute “exempt BLAGAB or eligible PHI business”,
b
in sub-paragraph (8)(b)(i), for “a new society” substitute “a society other than an old society”, and
c
in sub-paragraph (8)(b)(ii), for “a society other than a new society” substitute “an old society”.
3
In paragraph 4(3)(b)(ii), for “a new society” substitute “a society other than an old society”.
4
Omit paragraph 5.
5
In paragraph 6 —
a
in sub-paragraph (1) —
i
omit “(as defined in section 466)” in both places, and
ii
for “tax exempt life or endowment business” substitute “exempt BLAGAB or eligible PHI business”, and
b
in sub-paragraph (2), for “section 464” substitute “section 160 of the Finance Act 2012”.
6
After paragraph 6 insert —
6A
Any expression —
a
which is used in any provision made by any of paragraphs 3 to 6, and
b
which is used in Part 3 of the Finance Act 2012,
has the same meaning in that provision as it has in that Part.
Taxation of Chargeable Gains Act 1992
14
TCGA 1992 is amended as follows.
15
In section 100(2B)(b) (exemption for authorised unit trusts etc), for “section 466(2) of the Taxes Act” substitute “section 172 of the Finance Act 2012”.
16
In section 171(5) (transfers within a group: general provisions), for “section 461B of the Taxes Act” substitute “section 165 of the Finance Act 2012”.
Income Tax (Trading and Other Income) Act 2005
17
ITTOIA 2005 is amended as follows.
18
1
Section 531 (gains from contracts for life insurance etc: cases where income tax not treated as paid) is amended as follows.
2
In subsection (3)(a), for “tax exempt life or endowment business” substitute “exempt BLAGAB or eligible PHI business”.
3
In subsection (4), for the definition of “tax exempt life or endowment business” substitute —
“exempt BLAGAB or eligible PHI business” has the same meaning as in Part 3 of FA 2012 (see sections 154 and 155).
Corporation Tax Act 2009
19
CTA 2009 is amended as follows.
20
In section A1(2) (overview of the Corporation Tax Acts), after paragraph (k) (as inserted by paragraph 136(b) of Schedule 16 to this Act) insert
, and
l
Part 3 of that Act (friendly societies carrying on long-term business).
21
In section 564(1) (section 563: interpretation), for “section 460 of ICTA” substitute “section 158 of FA 2012”.
22
In section 931S(3) (company distributions: meaning of “small company”), in the definition of “friendly society”, for “section 466(2) of ICTA” substitute “section 172 of FA 2012”.
Consequential repeals
23
In consequence of the amendments made by this Schedule, omit the following provisions —
a
in FA 1990 —
i
section 49(1) to (4),
ii
section 50, and
iii
paragraph 6 of Schedule 9,
b
in FA 1991, paragraphs 1 to 3 of Schedule 9,
c
in FA 1995, paragraphs 1 and 2 of Schedule 10,
d
in FA 1996, section 171,
e
in FA 2007 —
i
section 44,
ii
paragraphs 40 and 43 of Schedule 7, and
iii
Schedule 12, and
f
in FA 2008 —
i
section 44, and
ii
Schedule 18.
SCHEDULE 19
Part 3: transitional provision
Section 177
Approvals given for purposes of section 461 or 461C of ICTA
1
Anything which, as a result of section 461(11) or 461A(4) of ICTA, is treated as having been done by HMRC Commissioners on a particular date under a provision of ICTA repealed by this Act is to continue to be treated as having been done by them on that date under the provision of this Part corresponding to that repealed provision, despite the fact that neither section 461(11) nor section 461A(4) of ICTA is rewritten in this Act.
General transitional provision in relation to provisions re-enacted in Part 3 of this Act
2
1
This paragraph applies where any provision of this Part of this Act re-enacts (with or without modification) an enactment repealed by this Part of this Act.
2
The repeal and re-enactment does not affect the continuity of the law.
3
Any subordinate legislation or other thing which —
a
has been made or done, or has effect as if made or done, under or for the purposes of the repealed provision, and
b
is in force or effective in relation to accounting periods of friendly societies ending on 31 December 2012,
has effect in relation to subsequent accounting periods of friendly societies as if made or done under or for the purposes of the corresponding provision of this Part of this Act.
4
Any reference (express or implied) in any enactment, instrument or document to a provision of this Part of this Act is to be read as including, in relation to times, circumstances or purposes in relation to which the corresponding repealed provision had effect, a reference to that corresponding provision.
This sub-paragraph applies only so far as the context permits.
5
Any reference (express or implied) in any enactment, instrument or document to a repealed provision is to be read, in relation to times, circumstances or purposes in relation to which the corresponding provision of this Part of this Act has effect, as a reference or (as the context may require) as including a reference to that corresponding provision.
This sub-paragraph applies only so far as the context permits.
6
This paragraph is subject to any specific transitional, transitory or saving provision made by or under this Schedule.
7
The generality of this paragraph is not to be affected by specific transitional, transitory or saving provision made by or under this Schedule.
8
This paragraph has effect instead of section 17(2) of the Interpretation Act 1978.
SCHEDULE 20
Controlled foreign companies and foreign permanent establishments
Section 180
PART 1
Controlled foreign companies
1
After Part 9 of TIOPA 2010 insert —
PART 9A
Controlled foreign companies
Chapter 1
Overview
Overview of Part
371AA
1
A charge (“the CFC charge”) is charged under this Part on UK resident companies which have certain interests in CFCs.
2
The CFC charge is charged by reference to the chargeable profits of CFCs.
3
A “CFC” is a non-UK resident company which is controlled by a UK resident person or persons (but see subsection (6) ).
4
Chapter 2 sets out the basic details of the CFC charge, including —
a
the CFC charge gateway (through which profits of a CFC must pass in order to be chargeable profits), and
b
the steps to be taken for charging the CFC charge.
5
Chapter 2 is supplemented by Chapters 3 to 17; in particular —
a
Chapter 3 sets out how to determine which (if any) of Chapters 4 to 8 apply in relation to the profits of a CFC,
b
so far as applicable, Chapters 4 to 8 set out how to determine which profits (if any) of a CFC pass through the CFC charge gateway, with —
i
Chapter 4 dealing with profits attributable to UK activities,
ii
Chapter 5 dealing with non-trading finance profits,
iii
Chapter 6 dealing with trading finance profits,
iv
Chapter 7 dealing with profits derived from captive insurance business, and
v
Chapter 8 dealing with cases involving solo consolidation,
c
Chapter 9 sets out exemptions for profits from qualifying loan relationships,
d
Chapters 10 to 14 set out full exemptions from the CFC charge,
e
Chapter 15 sets out how to determine the persons whose interests in a CFC are relevant to the charging of the CFC charge,
f
Chapter 16 sets out how to determine the creditable tax of CFCs (for which credit is given against chargeable profits), and
g
Chapter 17 sets out how to apportion a CFC’s chargeable profits and creditable tax among the persons who have relevant interests in the CFC.
6
Chapter 18 explains the concept of “control” and also sets out certain cases in which a non-UK resident company is to be taken to be a CFC even though it is not controlled by a UK resident person or persons.
7
Chapter 19 explains the concepts of “assumed taxable total profits”, “assumed total profits” and “the corporation tax assumptions” which are referred to in this Part.
8
Chapter 20 contains rules for determining the territory in which a CFC is resident for the purposes of this Part.
9
Chapter 21 contains provision about the management of the CFC charge, including the collection of sums charged.
10
Chapter 22 contains supplementary provision, including definitions of terms used in this Part.
11
Nothing in this Part affects —
a
the liability to corporation tax of a non-UK resident company in accordance with section 5(2) and (3) of CTA 2009 (non-UK resident companies within the charge to corporation tax), or
b
the determination of such a company’s chargeable profits for corporation tax purposes in accordance with Chapter 4 of Part 2 of CTA 2009.
12
This Part is part of the Corporation Tax Acts.
Chapter 2
The CFC charge
Introduction to the CFC charge
371BA
1
The CFC charge is charged in relation to accounting periods of CFCs in accordance with section 371BC .
2
Section 371BC applies in relation to a CFC’s accounting period if (and only if) —
a
the CFC has chargeable profits for the accounting period, and
b
none of the exemptions set out in Chapters 10 to 14 applies for the accounting period.
3
A CFC’s chargeable profits for an accounting period are its assumed taxable total profits for the accounting period determined on the basis —
a
that the CFC’s assumed total profits for the accounting period are limited to only so much of those profits as pass through the CFC charge gateway, and
b
that amounts are to be relieved against the assumed total profits at step 2 in section 4(2) of CTA 2010 only so far as it is just and reasonable for them to be so relieved having regard to paragraph (a) .
4
“The CFC charge gateway” is explained in section 371BB .
5
Subsection (3) is subject to section 371SB (7) and (8) (which relates to settlement income included in a CFC’s chargeable profits).
The CFC charge gateway
371BB
1
Take the following steps to determine the extent to which a CFC’s assumed total profits for an accounting period pass through the CFC charge gateway.
Step 1
In accordance with Chapter 3, determine which (if any) of Chapters 4 to 8 apply for the accounting period.
If none of those Chapters applies, none of the CFC’s assumed total profits pass through the CFC charge gateway and step 2 is not to be taken.
Step 2
Determine the extent to which the CFC’s assumed total profits fall within any of the Chapters which applies for the accounting period.
The CFC’s assumed total profits pass through the CFC charge gateway so far as they fall within any of those Chapters.
2
Subsection (1) is subject to —
a
Chapter 9 (exemptions for profits from qualifying loan relationships), and
b
section 371JE (which provides for adjustments of profits which would otherwise pass through the CFC charge gateway linked to the exemption set out in Chapter 10).
Charging the CFC charge
371BC
1
Take the following steps if, as provided for by section 371BA (2) , this section applies in relation to a CFC’s accounting period.
Step 1
In accordance with Chapter 15, determine the persons (“the relevant persons”) who have relevant interests in the CFC at any time during the accounting period.
If none of the relevant persons is a company which meets the UK residence condition (see subsection (2)), the CFC charge is not charged in relation to the accounting period and no further steps are to be taken.
Step 2
In accordance with Chapter 16, determine the CFC’s creditable tax for the accounting period.
Step 3
In accordance with Chapter 17, apportion the CFC’s chargeable profits and creditable tax among the relevant persons.
Step 4
Take each relevant person which is a company meeting the UK residence condition and, in accordance with section 371BD , determine if the company is a chargeable company.
If there are no chargeable companies, the CFC charge is not charged in relation to the accounting period and step 5 is not to be taken.
Step 5
The CFC charge is charged on each chargeable company as follows.
A sum equal to —
corporation tax at the appropriate rate on P% of the CFC’s chargeable profits, less
Q% of the CFC’s creditable tax,
is charged on the chargeable company as if it were an amount of corporation tax charged on the company for the relevant corporation tax accounting period.
This step is subject to sections 371BG and 371BH.
2
A company meets the UK residence condition if it is UK resident at a time during the accounting period when it has a relevant interest in the CFC.
3
For the purpose of taking step 5 in subsection (1) in relation to a chargeable company (“CC”) —
“the appropriate rate”, subject to section 371BH , means —
the rate of corporation tax applicable to CC’s profits of the relevant corporation tax accounting period on which corporation tax is chargeable (see section 4(1) and (2) of CTA 2010), or
if there is more than one such rate, the average rate over the whole of the relevant corporation tax accounting period,
“P%” means the percentage of the CFC’s chargeable profits apportioned to CC,
“Q%” means the percentage of the CFC’s creditable tax apportioned to CC, and
“the relevant corporation tax accounting period” means CC’s accounting period for corporation tax purposes during which the CFC’s accounting period ends.
Chargeable companies
371BD
1
A company (“C”) which meets the UK residence condition is a chargeable company for the purposes of step 4 in section 371BC (1) if the total of the following percentages is at least 25% —
a
the percentage of the CFC’s chargeable profits apportioned to C at step 3 in section 371BC (1) , and
b
the percentages (if any) of those profits which are apportioned at that step to relevant persons who, at any time during the accounting period, are connected or associated with C.
2
Subsection (1) is subject to sections 371BE and 371BF .
Companies which are managers of offshore funds etc
371BE
1
A company (“C”) is not a chargeable company for the purposes of step 4 in section 371BC (1) if —
a
the CFC is an offshore fund (as defined in section 355),
b
the genuine diversity of ownership condition set out in regulation 75 of the Offshore Funds (Tax) Regulations 2009 ( S.I. 2009/3001 ) is met in relation to the fund,
c
C meets the fund management condition, and
d
apart from this section, a sum of no more than £500,000 would be charged on C as a chargeable company at step 5 in section 371BC (1) .
2
In applying regulation 75 of the 2009 Regulations for the purposes of subsection (1)(b) , the reference in paragraph (1) to the period of account is to be read as a reference to the accounting period.
3
C meets the fund management condition if at all times during the accounting period when C has relevant interests in the offshore fund —
a
the assets of the offshore fund are managed by C or a person connected with C,
b
C or the person connected with C receives out of those assets fees for managing those assets, and
c
C holds its relevant interests only or mainly for the purpose of attracting participants (as defined in section 362) to the fund who are not connected with C.
4
If the accounting period is less than 12 months, the amount specified in subsection (1)(d) is to be reduced proportionately.
Companies which are participants in offshore funds
371BF
1
A company (“C”) is not a chargeable company for the purposes of step 4 in section 371BC (1) if —
a
the CFC is an offshore fund (as defined in section 355),
b
at the relevant time and at all subsequent relevant times, C reasonably believes that the requirement of section 371BD (1) will not be met in relation to it, and
c
the meeting of that requirement in relation to C is in no way attributable to any step —
i
which was taken by C or any person connected or associated with C, and
ii
which, at the time it was taken, could reasonably have been expected to cause that requirement to be met.
2
“The relevant time” means —
a
the beginning of the accounting period, or
b
if C has no relevant interests in the offshore fund at the beginning of the accounting period, the time when C first has a relevant interest during the accounting period.
3
“Subsequent relevant time” means any time during the accounting period at which there is an increase or some other change in the relevant interests in the offshore fund which C has.
Companies holding shares as trading assets etc
371BG
1
Subsection (2) applies if conditions A to C are met in relation to a relevant interest, or a part of a relevant interest, which a chargeable company (“CC”) has in the CFC at all times during the CFC’s accounting period.
2
Step 5 in section 371BC (1) is to be taken in relation to CC on the following basis.
3
That basis is —
a
so much of P% as is attributable to CC having the relevant interest, or the part of a relevant interest, during the CFC’s accounting period is to be left out of P%, and
b
so much of Q% as is so attributable is to be left out of Q%.
4
Condition A is that, at all times during the CFC’s accounting period, CC has the relevant interest, or the part of a relevant interest, by virtue of its holding shares (“the relevant shares”) in the CFC (directly or indirectly).
5
Condition B is that any increase in the value of the relevant shares at any time during the relevant corporation tax accounting period is (or would be) income, or brought into account in determining any income, of CC chargeable to corporation tax for that period.
6
Condition C is that any dividend or other distribution received at any time during the relevant corporation tax accounting period by CC from the CFC (directly or indirectly) by virtue of its holding the relevant shares is (or would be) income, or brought into account in determining any income, of CC chargeable to corporation tax for that period.
7
Subsection (8) applies if —
a
CC has the relevant interest, or the part of a relevant interest, by virtue of section 371OB (3) or (4) ,
b
the CFC is an offshore fund (as defined in section 355) which does not meet the qualifying investments test in section 493 of CTA 2009, and
c
conditions B and C would be met but for the offshore fund not meeting that test.
8
Conditions B and C are to be taken to be met.
9
This section is subject to section 371BH .
Companies carrying on BLAGAB
371BH
1
Subsection (2) applies in relation to a chargeable company (“CC”) if —
a
CC carries on basic life assurance and general annuity business during the relevant corporation tax accounting period,
b
the I-E rules apply to CC for the relevant corporation tax accounting period, and
c
the following are met in relation to a relevant interest, or a part of a relevant interest, which CC has in the CFC at all times during the CFC’s accounting period —
i
condition D,
ii
condition E or F (or both), and
iii
condition G.
2
An additional sum is charged on CC at step 5 in section 371BC (1) and, for this purpose, step 5 is to be taken on the following basis.
3
That basis is —
a
in paragraph (a) at step 5, the reference to the appropriate rate is to be read as a reference to —
i
the policyholders’ rate of tax under section 102 of FA 2012 applicable to the I-E profit for the relevant corporation tax accounting period, or
ii
if there is more than one such rate, the average rate over the whole of the relevant corporation tax accounting period, and
b
any reduction of P% or Q% under section 371BG (3) by reference to any relevant interest of CC is to be ignored, but —
i
P% is to be reduced so that it represents only the policyholders’ share of the BLAGAB component of the apportioned profit (see subsections (10) to (12) ), and
ii
Q% is to be reduced by the same proportion as P% is reduced under sub-paragraph (i).
4
Condition D is that, at all times during the CFC’s accounting period, CC has the relevant interest, or the part of a relevant interest, by virtue of its holding shares (“the relevant shares”) in the CFC (directly or indirectly).
5
Condition E is met if the following requirement is met in relation to a time during the relevant corporation tax accounting period.
6
The requirement is that any increase (or any part of any increase) in the value of the relevant shares which occurs at that time is not (or would not be) brought into account at step 1 in section 73 of FA 2012 in determining whether CC has an I-E profit for the relevant corporation tax accounting period.
7
Condition F is met if the following requirement is met in relation to a time during the relevant corporation tax accounting period.
8
The requirement is that any dividend or other distribution (or any part of any dividend or other distribution) received at that time by CC from the CFC (directly or indirectly) by virtue of its holding the relevant shares is not (or would not be) brought into account at step 1 in section 73 of FA 2012 in determining whether CC has an I-E profit for the relevant corporation tax accounting period.
9
Condition G is that the assets which represent the relevant interest, or the part of a relevant interest, during the CFC’s accounting period are (to any extent) assets held by CC for the purposes of CC’s long-term business.
10
“The apportioned profit” means so much of P% as is attributable to CC having the relevant interest, or the part of a relevant interest, during the CFC’s accounting period.
11
Take the following steps to determine the “BLAGAB component” of the apportioned profit.
Step 1
Assume that the apportioned profit is income falling within section 74(1)(j) of FA 2012 paid to CC at the end of the CFC’s accounting period.
Step 2
Calculate how much of that income would be referable, in accordance with Chapter 4 of Part 2 of FA 2012, to CC’s basic life assurance and general annuity business.
That amount is the “BLAGAB component” of the apportioned profit.
12
The “policyholders’ share” of the BLAGAB component of the apportioned profit is equal to the policyholders’ share of the I - E profit for the relevant corporation tax accounting period as determined in accordance with the rules contained in Chapter 5 of Part 2 of FA 2012.
Chapter 3
The CFC charge gateway: determining which (if any) of Chapters 4 to 8 applies
Does Chapter 4 apply?
371CA
1
Chapter 4 (profits attributable to UK activities) applies for a CFC’s accounting period unless condition A, B, C or D is met.
2
Condition A is that, at no time during the accounting period, does the CFC hold assets or bear risks under an arrangement to which both subsections (3) and (4) apply.
3
This subsection applies to an arrangement if —
a
the main purpose, or one of the main purposes, of the arrangement is to reduce or eliminate any liability of any person to tax or duty imposed under the law of the United Kingdom, and
b
in consequence of the arrangement, at any time the CFC expects its business to be more profitable than it would otherwise be (other than negligibly so).
4
This subsection applies to an arrangement if —
a
there is an expectation that, as a consequence of the arrangement, one or more persons will have liabilities to tax or duty imposed under the law of any territory reduced or eliminated, and
b
it is reasonable to suppose that, but for that expectation, the arrangement would not have been made.
5
Condition B is that, at no time during the accounting period, does the CFC have any UK managed assets or bear any UK managed risks (see subsection (9) ).
6
Condition C is that, at all times during the accounting period, the CFC has itself the capability to ensure that the CFC’s business would be commercially effective were —
a
the UK managed assets of the CFC, and
b
the UK managed risks borne by the CFC,
to stop being UK managed.
7
In subsection (6) the reference to the capability of the CFC includes (in particular) its capability to select persons not connected with it to provide it with goods or services and to manage the transactions it has with persons not connected with it.
8
In determining if the requirements of subsection (6) are met at any time (“the relevant time”) during the accounting period, assume —
a
that the CFC would continue to carry on the same business as it is actually carrying on at the relevant time, and
b
that no relevant UK activities (see subsection (10) ) by which any asset or risk was UK managed would be replaced —
i
by activities carried on by any person connected with the CFC at any time, or
ii
in any other way which relies to any extent upon the CFC receiving (directly or indirectly) resources or other assistance from a person connected with it at any time.
9
An asset or risk is “UK managed” if —
a
the acquisition, creation, development or exploitation of the asset, or
b
the taking on, or bearing, of the risk,
is managed or controlled to any significant extent by way of relevant UK activities.
10
“Relevant UK activities” means activities carried on in the United Kingdom —
a
by the CFC, otherwise than through a UK permanent establishment, or
b
by companies connected with the CFC under arrangements which would not, it is reasonable to suppose, be entered into by companies not connected with each other.
11
Condition D is that the CFC’s assumed total profits consist only of one or both of the following —
a
non-trading finance profits;
b
property business profits.
Does Chapter 5 apply?
371CB
1
Subject to sections 371CC and 371CD , Chapter 5 (non-trading finance profits) applies for a CFC’s accounting period if (and only if) the CFC has non-trading finance profits.
2
In this section and Chapter 5 references to the CFC’s non-trading finance profits are to those profits excluding any profits falling within subsection (3) or (4) or Chapter 8 (solo consolidation).
3
Profits fall within this subsection so far as they arise from the investment of funds held by the CFC for the purposes of a trade —
a
which is carried on by the CFC, and
b
no trading profits of which pass through the CFC charge gateway for the accounting period.
4
Profits fall within this subsection so far as they arise from the investment of funds held by the CFC for the purposes of a UK property business or overseas property business carried on by the CFC.
5
Neither subsection (3) nor subsection (4) applies in relation to funds —
a
held only or mainly because of a prohibition or restriction on the CFC paying dividends or making other distributions imposed under —
i
the law of the territory in which the CFC is incorporated or formed,
ii
the articles of association or other document regulating the CFC, or
iii
any arrangement entered into by or in relation to the CFC,
b
held with a view to paying dividends or making other distributions at a time after the end of the relevant 12 month period,
c
held with a view to acquiring shares in any company or making any capital contribution to a person,
d
held with a view to acquiring, developing or otherwise investing in land at a time after the end of the relevant 12 month period,
e
held only or mainly for contingencies, or
f
held only or mainly for the purpose of reducing or eliminating a liability of any person to tax or duty imposed under the law of any territory.
6
Subsection (5)(a) does not cover a prohibition or restriction which ceases to have effect before the end of the relevant 12 month period.
7
“The relevant 12 month period” means the period of 12 months after the end of the accounting period.
8
In the case of a chargeable company which makes a claim under Chapter 9, in this section and Chapter 5 references to the CFC’s non-trading finance profits are to those profits excluding also the CFC’s qualifying loan relationship profits (as defined in Chapter 9).
Incidental non-trading finance profits: the 5% rule
371CC
1
This section applies in relation to a CFC’s accounting period if one or both of the following requirements is met —
a
the CFC has trading profits or property business profits (or both);
b
the CFC has exempt distribution income and, at all times during the accounting period, a substantial part of its business is the holding of shares or securities in companies which are its 51% subsidiaries.
2
Chapter 5 does not apply for the accounting period if the CFC’s non-trading finance profits are no more than 5% of the relevant amount.
3
“The relevant amount” is —
a
if the requirement of subsection (1)(a) is met, the total of the CFC’s trading profits and property business profits determined before deduction of interest or any tax or duty imposed under the law of any territory,
b
if the requirement of subsection (1)(b) is met, the total of the CFC’s exempt distribution income, or
c
if both those requirements are met, the sum of the totals given by paragraphs (a) and (b) .
4
Subsection (5) applies for the purposes of subsection (2) if —
a
the requirement of subsection (1)(b) is met (whether or not the requirement of subsection (1)(a) is also met),
b
at any time during the accounting period, a 51% subsidiary of the CFC (“the CFC subsidiary”) is also a CFC, and
c
the CFC subsidiary has relevant non-trading finance profits as determined in accordance with subsection (6) or (7) .
5
The CFC subsidiary’s relevant non-trading finance profits are to be added to the CFC’s non-trading finance profits.
6
If —
a
the CFC subsidiary has an accounting period (“the relevant period”) which is the same as the CFC’s accounting period or otherwise falls wholly within the CFC’s accounting period, and
b
by virtue of this section or section 371CD , Chapter 5 does not apply (in the case of the CFC subsidiary) for the relevant period,
the CFC subsidiary’s “relevant non-trading finance profits” are its non-trading finance profits for the relevant period.
7
If —
a
the CFC subsidiary has an accounting period (“the relevant period”) which otherwise overlaps with the CFC’s accounting period, and
b
by virtue of this section or section 371CD , Chapter 5 does not apply (in the case of the CFC subsidiary) for the relevant period,
the CFC subsidiary’s “relevant non-trading finance profits” are a just and reasonable proportion of its non-trading finance profits for the relevant period.
8
In this section references to the CFC’s trading profits are to those profits excluding any of them which pass through the CFC charge gateway for the accounting period.
9
“Exempt distribution income” means any dividends or other distributions which are not brought into account in determining the CFC’s assumed total profits on the basis that they would be exempt for the purposes of Part 9A of CTA 2009 (company distributions).
10
This section needs to be read with section 371CD .
Incidental non-trading finance profits: the further 5% rule
371CD
1
This section applies in relation to a CFC’s accounting period if —
a
the requirements of section 371CC (1)(a) and (b) are both met, but
b
the CFC’s non-trading finance profits (as added to under section 371CC (5) if applicable) are more than 5% of the relevant amount for the purposes of section 371CC (2) .
2
Chapter 5 does not apply for the accounting period if the CFC’s adjusted non-trading finance profits are no more than 5% of the total of the CFC’s exempt distribution income (as defined in section 371CC (9) ).
3
The CFC’s “adjusted non-trading finance profits” are its non-trading finance profits excluding any profits falling within section 371CB (3) or (4) .
4
Subsection (5) applies if any CFC subsidiary’s relevant non-trading finance profits are added under section 371CC (5) to the CFC’s non-trading finance profits for the purposes of section 371CC (2) .
5
The CFC subsidiary’s relevant non-trading finance profits are also to be added to the CFC’s adjusted non-trading finance profits for the purposes of subsection (2) above.
Does Chapter 6 apply?
371CE
1
Subject to what follows, Chapter 6 (trading finance profits) applies for a CFC’s accounting period if (and only if) —
a
the CFC has trading finance profits, and
b
at any time during the accounting period, the CFC has funds or other assets which derive (directly or indirectly) from UK connected capital contributions.
2
The CFC’s trading finance profits are to be treated for the purposes of this Part as if they were non-trading finance profits (and, accordingly, Chapter 6 cannot apply for the accounting period) if —
a
the CFC is a group treasury company in the accounting period, and
b
a notice is given to an officer of Revenue and Customs requesting that the CFC’s trading finance profits be treated as if they were non-trading finance profits.
3
Profits treated as non-trading finance profits under subsection (2) are not to be taken to fall within section 371CB (3) or (4) .
4
Section 316(5) to (11) (group treasury companies) applies for the purpose of determining if a CFC is a “group treasury company” as if references to the relevant period were to the accounting period.
5
For this purpose, section 337(1) (definition of “the worldwide group”) applies with the omission of paragraph (a).
6
A notice under subsection (2)(b) —
a
may be given only by a company or companies determined under subsection (7) or (8) , and
b
must be given —
i
within 20 months after the end of the accounting period, or
ii
within such longer period as an officer of Revenue and Customs may allow.
7
A company may give a notice if —
a
the company would be a chargeable company were section 371BC (charging the CFC charge) to apply in relation to the accounting period, and
b
the percentage of the CFC’s chargeable profits which would be apportioned to the company at step 3 in section 371BC (1) would represent more than half of X%.
8
Two or more companies may together give a notice if —
a
the companies would all be chargeable companies were section 371BC (charging the CFC charge) to apply in relation to the accounting period, and
b
the percentage of the CFC’s chargeable profits which would be apportioned to the companies, taken together, at step 3 in section 371BC (1) would represent more than half of X%.
9
In subsections (7) and (8) “X%” means the total percentage of the CFC’s chargeable profits which would be apportioned to chargeable companies at step 3 in section 371BC (1) were section 371BC (charging the CFC charge) to apply in relation to the accounting period.
Does Chapter 7 apply?
371CF
1
Chapter 7 (captive insurance business) applies for a CFC’s accounting period if (and only if) —
a
at any time during the accounting period, the main part of the CFC’s business is insurance business, and
b
the CFC’s assumed total profits include amounts falling within subsection (2) .
2
An amount falls within this subsection if it derives (directly or indirectly) from —
a
a contract of insurance which is entered into with —
i
a UK resident company connected with the CFC, or
ii
a non-UK resident company connected with the CFC acting through a UK permanent establishment, or
b
a contract of insurance which —
i
is entered into with a UK resident person, and
ii
is linked (directly or indirectly) to the provision of goods or services to the UK resident person by a UK connected company.
3
In subsection (2)(b)(ii) —
“services” does not include services provided as part of insurance business, and
“UK connected company” means —
a UK resident company connected with the CFC, or
a non-UK resident company connected with the CFC acting through a UK permanent establishment.
Does Chapter 8 apply?
371CG
1
Chapter 8 (solo consolidation) applies for a CFC’s accounting period if (and only if) condition A or B is met.
2
Condition A is that, at any time during the accounting period —
a
the CFC is a subsidiary undertaking which is the subject of a solo consolidation waiver under section BIPRU 2.1 of the FSA Handbook, and
b
the CFC’s parent undertaking in relation to that waiver is a UK resident company.
3
Condition B is that, at any time during the accounting period —
a
the CFC is controlled (either alone or with other persons) by a UK resident bank which holds shares in the CFC,
b
the UK resident bank must meet requirements of the FSA Handbook in relation to its capital,
c
any fall in the value of the shares held in the CFC would be (wholly or mainly) ignored for the purpose of determining if the UK resident bank meets those requirements of the FSA Handbook, and
d
the main purpose, or one of the main purposes, of the UK resident bank in holding the shares in the CFC is to obtain a tax advantage for itself or any company connected with it.
4
In this section —
“the FSA Handbook” means the Handbook of Rules and Guidance made by the Financial Services Authority (as that Handbook has effect from time to time), and
“UK resident bank” means a UK resident person carrying on banking business.
5
The Treasury may by regulations amend this Chapter or Chapter 8 as they consider appropriate to take account of —
a
any changes to the FSA Handbook, or
b
any relevant document published by the Financial Services Authority from time to time.
6
“Relevant document” means —
a
a document which replaces the FSA Handbook, or
b
a document which changes or replaces a document falling within paragraph (a) or a document which is a relevant document by virtue of this paragraph.
Chapter 4
The CFC charge gateway: profits attributable to UK activities
Introduction to Chapter
371DA
1
Take the steps set out in section 371DB (1) to determine the CFC’s profits falling within this Chapter for the purposes of step 2 in section 371BB (1) (the CFC charge gateway).
2
In this Chapter references to the CFC’s assumed total profits are to those profits excluding its non-trading finance profits and property business profits (if any).
3
For the purposes of this Chapter —
a
“the OECD Report” means the Report on the Attribution of Profits to Permanent Establishments of the Organisation for Economic Co-operation and Development (“OECD”) dated 22 July 2010,
b
terms used which are also used in the OECD Report have the same meaning as they have in the OECD Report,
c
“the CFC group” means the CFC taken together with the companies with which it is connected as those companies may change from time to time,
d
“the provisional Chapter 4 profits” has the meaning given at step 7 in section 371DB (1) ,
e
“the relevant assets and risks” has the meaning given at step 1 in section 371DB (1) , subject to any exclusions at step 2 or 6,
f
“SPF” means a significant people function or a key entrepreneurial risk-taking function,
g
an SPF is a “UK SPF” so far as the SPF is carried out in the United Kingdom —
i
by the CFC, otherwise than through a UK permanent establishment, or
ii
by a company connected with the CFC, and
h
an SPF is a “non-UK SPF” so far as it is not a UK SPF.
4
The Treasury may by regulations amend this Chapter as they consider appropriate to take account of any relevant document published by OECD from time to time.
5
“Relevant document” means —
a
a document which replaces, updates or supplements the report mentioned in subsection (3)(a) , or
b
a document which replaces, updates or supplements a document falling within paragraph (a) or a document which is a relevant document by virtue of this paragraph.
The steps
371DB
1
Here are the steps referred to in section 371DA (1) .
The steps are to be taken in accordance with the principles set out in the OECD Report (so far as relevant).
Step 1
Identify the assets which the CFC has or has had, and the risks which the CFC bears or has borne, and from which amounts included in the CFC’s assumed total profits have arisen.
The identified assets and risks are called “the relevant assets and risks”
Step 2
Exclude from the relevant assets and risks any asset or risk to which subsection (2) applies (subject to subsections (3) and (4) ).
Step 3
Identify the SPFs carried out by the CFC group which are relevant to —
the economic ownership of the assets included in the relevant assets and risks, or
the assumption and management of the risks included in the relevant assets and risks.
For this purpose, assume that the CFC group is a single company.
Step 4
Determine the extent to which the SPFs identified at step 3 are UK SPFs and the extent to which they are non-UK SPFs.
If none of the SPFs is a UK SPF to any extent, then no profits fall within this Chapter and no further steps are to be taken.
Step 5
Assume that the UK SPFs determined at step 4 are carried out by a permanent establishment which the CFC has in the United Kingdom and, accordingly, determine the extent to which the assets and risks included in the relevant assets and risks would be attributed to the permanent establishment.
For this purpose, assume that the non-UK SPFs determined at step 4 are all carried out by the CFC itself (if that is not otherwise the case).
Step 6
Exclude from the relevant assets and risks any asset or risk, or any assets or risks taken together, to which section 371DC applies.
Step 7
Re-determine the CFC’s assumed total profits on the basis that the CFC —
does not hold, or has not held, the assets included in the relevant assets and risks, and
does not bear, or has not borne, the risks included in the relevant assets and risks,
so far as they would be attributed to the permanent establishment mentioned at step 5.
“The provisional Chapter 4 profits” are the CFC’s assumed total profits so far as they are left out of the re-determined profits.
Step 8
Exclude from the provisional Chapter 4 profits any amounts which are required to be excluded by section 371DD , 371DE or 371DF .
The remaining profits (if any) fall within this Chapter.
2
This subsection applies to an asset or risk if the CFC’s assumed total profits are only negligibly higher than what they would be if the CFC —
a
did not hold, or had not held, the asset to any extent at all, or
b
did not bear, or had not borne, the risk to any extent at all.
3
The total number of assets and risks which may be excluded at step 2 in subsection (1) is limited as follows.
4
As well as applying to each asset and risk separately, subsection (2) must also apply to all the assets and risks included in the total number taken together.
Exclusion: UK activities a minority of total activities
371DC
1
For the purposes of step 6 in section 371DB (1) , this section applies to an asset or risk included in the relevant assets and risks if amount A is no more than 50% of amount B.
2
Amount A is the total of —
a
the gross amounts (that is, the amounts before deduction of expenses or transfers to or from reserves) of the CFC’s income which would not have become receivable during the accounting period had the CFC —
i
not held the asset, or
ii
not borne the risk,
so far as it would be attributed to the permanent establishment mentioned at step 5 in section 371DB (1) , and
b
the additional expenses which the CFC would have incurred during the accounting period had the CFC —
i
not held the asset, or
ii
not borne the risk,
so far as it would be so attributed.
3
Amount B is the total of —
a
the gross amounts (that is, the amounts before deduction of expenses or transfers to or from reserves) of the CFC’s income which would not have become receivable during the accounting period had the CFC —
i
not held the asset to any extent at all, or
ii
not borne the risk to any extent at all, and
b
the additional expenses which the CFC would have incurred during the accounting period had the CFC —
i
not held the asset to any extent at all, or
ii
not borne the risk to any extent at all.
4
Subsection (5) applies if it is not reasonably practicable to separate a number of assets or risks included in the relevant assets and risks for the purpose of determining amounts A and B in relation to each of those assets or risks separately.
5
In subsections (1) to (3) references to an asset or risk are to be read as references to those assets or risks taken together.
Exclusion: economic value
371DD
1
Subsection (2) applies if —
a
an asset or risk is included in the relevant assets and risks,
b
the SPFs which are relevant to the economic ownership of the asset, or the assumption and management of the risk, are wholly or partly UK SPFs as determined at step 4 in section 371DB (1) , and
c
as a result of that determination, an amount is included in the provisional Chapter 4 profits.
2
The amount is to be excluded from the provisional Chapter 4 profits if —
a
the net economic value to the CFC group which results from the holding of the asset, or the bearing of the risk, exceeds what that value would have been had the asset been held, or the risk been borne, solely by UK resident companies connected with the CFC, and
b
the relevant non-tax value is a substantial proportion of the excess value mentioned in paragraph (a) .
3
“Net economic value” does not include any value which derives (directly or indirectly) from the reduction or elimination of any liability of any person to tax or duty imposed under the law of any territory outside the United Kingdom.
4
“The relevant non-tax value” is the excess value mentioned in subsection (2)(a) so far as it does not derive (directly or indirectly) from the reduction or elimination of any liability of any person to tax or duty imposed under the law of the United Kingdom.
5
Subsection (6) applies if —
a
there are SPFs which are relevant to the economic ownership of a number of assets, or the assumption and management of a number of risks, included in the relevant assets and risks, and
b
it is not reasonably practicable to separate those assets or risks for the purpose of determining the extent to which the SPFs are relevant to the economic ownership of each of those assets, or the assumption and management of each of those risks, separately.
6
In subsections (1) and (2) references to an asset or risk are to be read as references to those assets or risks taken together.
Exclusion: independent companies’ arrangements
371DE
1
Subsection (2) applies if —
a
an asset or risk is included in the relevant assets and risks,
b
the SPFs which are relevant to the economic ownership of the asset, or the assumption and management of the risk, are wholly or partly UK SPFs as determined at step 4 in section 371DB (1) ,
c
as a result of that determination, an amount is included in the provisional Chapter 4 profits, and
d
the UK SPFs are carried out by companies connected with the CFC under arrangements made between the CFC and those companies.
2
The amount is to be excluded from the provisional Chapter 4 profits if it is reasonable to suppose that, were the SPFs which are UK SPFs not to be carried out by companies connected with the CFC, the CFC would enter into arrangements with companies not connected with the CFC which —
a
would be structured in the same way as the arrangements mentioned in subsection (1)(d) , and
b
would, in relation to the CFC’s business, have the same commercial effect as those arrangements.
3
Subsection (4) applies if —
a
there are SPFs which are relevant to the economic ownership of a number of assets, or the assumption and management of a number of risks, included in the relevant assets and risks, and
b
it is not reasonably practicable to separate those assets or risks for the purpose of determining the extent to which the SPFs are relevant to the economic ownership of each of those assets, or the assumption and management of each of those risks, separately.
4
In subsection (1) references to an asset or risk are to be read as references to those assets or risks taken together.
Exclusion: trading profits (the basic rule)
371DF
1
All trading profits are to be excluded from the provisional Chapter 4 profits if the following conditions are met —
a
the business premises condition (see section 371DG ),
b
the income condition (see section 371DH ),
c
the management expenditure condition (see section 371DI ),
d
the IP condition (see section 371DJ ), and
e
the export of goods condition (see section 371DK ).
2
Trading profits are also to be excluded from the provisional Chapter 4 profits in accordance with section 371DI (7) and (8) (so far as applicable).
3
This section is subject to section 371DL (anti-avoidance).
Exclusion: trading profits (business premises condition)
371DG
1
This section applies for the purposes of section 371DF (1)(a) .
2
The business premises condition is met if, at all times during the accounting period, the CFC has in the territory in which it is resident for the accounting period premises —
a
which are, or are intended to be, occupied and used with a reasonable degree of permanence, and
b
from which the CFC’s activities in that territory are wholly or mainly carried on.
3
“Premises” means —
a
an office, shop, factory or other building or part of a building,
b
a mine, an oil or gas well, a quarry or other place of extraction of natural resources, or
c
a building site or the site of a construction or installation project, but only if the building work or project has a duration of at least 12 months.
Exclusion: trading profits (income condition)
371DH
1
This section applies for the purposes of section 371DF (1)(b) .
2
The income condition is met if no more than 20% of the CFC’s relevant trading income derives (directly or indirectly) from —
a
UK resident persons, or
b
UK permanent establishments of non-UK resident companies.
3
For the purposes of subsection (2) the CFC’s “relevant trading income” is its trading income, excluding any income arising from the sale in the United Kingdom of goods produced by the CFC in the territory in which it is resident for the accounting period.
4
Subsection (5) applies instead of subsection (2) if, at any time during the accounting period, the CFC’s main business is banking business in relation to which the CFC is regulated in the territory in which it is resident for the accounting period.
5
The income condition is met if the CFC’s relevant UK trading income is no more than 10% of the CFC’s trading income.
6
The CFC’s “relevant UK trading income” is its trading income so far as it derives (directly or indirectly) from —
a
UK resident persons, or
b
UK permanent establishments of non-UK resident companies,
but excluding interest received from UK resident companies which are connected or associated with the CFC.
7
Neither subsection (2)(a) nor subsection (6)(a) covers income deriving (directly or indirectly) from a UK resident company if —
a
the company has made an election under section 18A of CTA 2009 (exemption for profits or losses of foreign permanent establishments), and
b
an expense corresponding to the income is brought into account for the purpose of determining any exemption adjustment in relation to the company under that section.
Exclusion: trading profits (management expenditure condition)
371DI
1
This section applies for the purposes of section 371DF (1)(c) .
2
The management expenditure condition is met if the UK related management expenditure is no more than 20% of the total related management expenditure.
3
“The total related management expenditure” is the total of the following expenditure incurred during the accounting period by the CFC —
a
expenditure incurred in the employment of any member of the CFC’s staff who carries out relevant management functions,
b
expenditure incurred in the engagement (directly or indirectly) of any individual who is not a member of the CFC’s staff but who carries out relevant management functions in consequence of an arrangement between the individual and the CFC, and
c
expenditure incurred in the engagement (directly or indirectly) of any company related to the CFC so far as the expenditure represents expenditure incurred by the related company in —
i
the employment of any member of the related company’s staff who carries out relevant management functions, or
ii
the engagement by the related company (directly or indirectly) of any individual who is not a member of the related company’s staff but who carries out relevant management functions in consequence of an arrangement between the individual and the related company.
4
“The UK related management expenditure” is the total related management expenditure so far as it relates to members of staff or other individuals who carry out relevant management functions in the United Kingdom.
5
A person carries out a “relevant management function” if the person manages or controls any assets or risks included in the relevant assets and risks.
6
This covers (for example) a person who formulates plans or makes decisions in relation to —
a
the acquisition, creation, development or exploitation of such assets, or
b
the taking on, or bearing, of such risks.
7
Subsection (8) applies if —
a
the conditions mentioned in section 371DF (1)(a) , (b) , (d) and (e) are met but the management expenditure condition is not met,
b
there is an asset or risk which is included in the relevant assets and risks and to which any part of the total related management expenditure relates,
c
the 50% condition is met in relation to that asset or risk, and
d
trading profits arising from that asset or risk are included in the provisional Chapter 4 profits.
8
The trading profits are to be excluded from the provisional Chapter 4 profits.
9
The 50% condition is met in relation to an asset or risk if the UK related management expenditure so far as relating to the asset or risk is no more than 50% of the total related management expenditure so far as relating to the asset or risk.
10
Subsection (11) applies if —
a
any part of the total related management expenditure relates to a number of assets or risks included in the relevant assets and risks, and
b
it is not reasonably practicable to separate those assets or risks for the purpose of determining the extent to which the total related management expenditure relates to each of those assets or risks separately.
11
Subsections (7) to (9) apply in relation to those assets or risks taken together and references to an asset or risk are to be read accordingly.
Exclusion: trading profits (IP condition)
371DJ
1
This section applies for the purposes of section 371DF (1)(d) .
2
The IP condition is met unless —
a
the CFC’s assumed total profits include amounts arising from intellectual property held by the CFC (“the exploited IP”),
b
all or parts of the exploited IP were —
i
transferred (directly or indirectly) to the CFC by persons related to the CFC at times during the relevant period, or
ii
otherwise derived (directly or indirectly) at times during that period out of or from intellectual property held at times during that period by persons related to the CFC,
c
as a result of those transfers or other derivations, the value of the intellectual property held by those persons related to the CFC, taken together, has been significantly reduced from what it would otherwise have been, and
d
if only parts of the exploited IP were so transferred or derived, the significance condition is met.
3
The significance condition is met if —
a
the parts of the exploited IP (“the UK derived IP”) which were transferred or otherwise derived as mentioned in subsection (2)(b) are, taken together, a significant part of the exploited IP, or
b
as a result of the transfers or other derivations of the UK derived IP, the CFC’s assumed total profits are significantly higher than what they would otherwise have been.
4
In relation to a non-UK resident person who is related to the CFC, in this section references to the transfer or holding of intellectual property by a person related to the CFC are limited to, as the case may be —
a
the transfer of intellectual property which before the transfer was held by the non-UK resident person (wholly or partly) for the purposes of a permanent establishment which the person has in the United Kingdom, or
b
the holding of intellectual property by the non-UK resident person (wholly or partly) for those purposes.
5
“The relevant period” means the period covering the accounting period and the 6 years before the accounting period.
Exclusion: trading profits (export of goods condition)
371DK
1
This section applies for the purposes of section 371DF (1)(e) .
2
The export of goods condition is met if no more than 20% of the CFC’s trading income arises from goods exported from the United Kingdom, excluding goods exported from the United Kingdom to the territory in which the CFC is resident for the accounting period.
Exclusion: trading profits (anti-avoidance)
371DL
1
This section applies if —
a
a condition mentioned in section 371DF (1) is met, or
b
the 50% condition mentioned in section 371DI is met in relation to an asset or risk (or a number of assets or risks taken together),
but it is reasonable to suppose that that would not be the case apart from an arrangement falling within subsection (3) .
2
The condition is to be taken not to be met or (as the case may be) not to be met in relation to the asset or risk (or the assets or risks taken together).
3
An arrangement falls within this subsection if —
a
the arrangement involves the CFC group organising (or reorganising) a significant part of its business in a particular way, and
b
the main purpose, or one of the main purposes, of that organising (or reorganising) is to secure that —
i
one or more of the conditions mentioned in section 371DF (1) are met, or
ii
the 50% condition mentioned in section 371DI is met in relation to one or more assets or risks.
Chapter 5
The CFC charge gateway: non-trading finance profits
The basic rule
371EA
1
The CFC’s profits falling within this Chapter for the purposes of step 2 in section 371BB (1) (the CFC charge gateway) are its non-trading finance profits so far as they fall within any of sections 371EB to 371EE .
2
In this Chapter references to the CFC’s non-trading finance profits are to be read in accordance with section 371CB (2) and, so far as applicable, section 371CB (8) .
UK activities
371EB
1
To determine the extent to which the CFC’s non-trading finance profits fall within this section, take steps 1 to 5 and 7 in section 371DB (1) as if references in section 371DB to the CFC’s assumed total profits were references to its non-trading finance profits.
2
Non-trading finance profits fall within this section so far as they would be included in the provisional Chapter 4 profits as determined on the basis mentioned in subsection (1) .
Capital investment from the UK
371EC
1
Non-trading finance profits fall within this section so far as they arise from relevant UK funds or other assets.
2
Subsection (3) applies in relation to any profits which (apart from subsection (3) ) would fall within this section if —
a
an amount of expenditure incurred by the CFC in managing the relevant UK funds or other assets itself was brought into account in calculating the profits, and
b
it is reasonable to suppose that the amount of expenditure is less than the fee which a company not connected with the CFC would charge the CFC for carrying out the same management activities.
3
There is to be deducted from the profits an amount representing what it is reasonable to suppose the difference between the amount of expenditure and the fee would be.
4
“Relevant UK funds or other assets” means —
a
funds or other assets which represent, or derive (directly or indirectly) from, any capital contribution to the CFC made (directly or indirectly) by a UK connected company (whether in relation to an issue of shares in the CFC or otherwise),
b
funds or other assets which represent, or derive (directly or indirectly) from, any amounts included in the CFC’s chargeable profits for any earlier accounting period in relation to which the CFC charge is charged,
c
funds or other assets which represent, or derive (directly or indirectly) from, any amounts which, by virtue of section 174 (transfer pricing: claims by disadvantaged person), are left out of account in determining the CFC’s assumed total profits for the accounting period or any earlier accounting period, or
d
funds or other assets —
i
which represent, or derive (directly or indirectly) from, any funds or other assets received by the CFC (directly or indirectly) from a UK connected company, and
ii
which are not covered by paragraphs (a) to (c) .
5
In subsection (4)(d)(i) the reference to funds or other assets received by the CFC does not include funds or other assets received —
a
in exchange for goods or services provided by the CFC, or
b
by way of a loan.
6
“UK connected company” means —
a
a UK resident company connected with the CFC, or
b
a non-UK resident company connected with the CFC acting through a UK permanent establishment.
Arrangements in lieu of dividends etc to UK resident companies etc
371ED
1
Non-trading finance profits fall within this section so far as they arise from an arrangement (other than a relevant finance lease) in relation to which the following condition is met.
2
The condition is that —
a
the arrangement is made by the CFC (directly or indirectly) —
i
with a UK resident company connected with the CFC, or
ii
with a non-UK resident company connected with the CFC for the purposes of a UK permanent establishment of the non-UK resident company, and
b
it is reasonable to suppose —
i
that the arrangement is made as an alternative to the CFC paying dividends or making any other distribution to the other company (directly or indirectly), and
ii
that the main reason, or one of the main reasons, for that is a reason relating to a liability, or potential liability, of any person to tax or duty imposed under the law of any territory.
Leases to UK resident companies etc
371EE
1
Non-trading finance profits fall within this section so far as they arise from a relevant finance lease in relation to which the following condition is met.
2
The condition is that —
a
the lease is made by the CFC (directly or indirectly) —
i
with a UK resident company connected with the CFC, or
ii
with a non-UK resident company connected with the CFC for the purposes of a UK permanent establishment of the non-UK resident company, and
b
it is reasonable to suppose —
i
that the lease is made as an alternative to the other company purchasing (directly or indirectly) the asset which is the subject of the lease, and
ii
that the main reason, or one of the main reasons, for that is a reason relating to a liability, or potential liability, of any person to tax or duty imposed under the law of any territory.
Chapter 6
The CFC charge gateway: trading finance profits
The basic rule
371FA
1
Take the following steps to determine the CFC’s profits falling within this Chapter for the purposes of step 2 in section 371BB (1) (the CFC charge gateway).
This is subject to regulations under section 371FD or 371FE .
Step 1
Determine if, during the accounting period, the CFC’s free capital exceeds what it is reasonable to suppose its free capital would be were it a company which is not the 51% subsidiary of any other company.
If there is excess free capital, “the step 1 amount” is —
the excess free capital, or
if less, the CFC’s free capital so far as deriving (directly or indirectly) from UK connected capital contributions.
Step 2
This step applies only if the CFC carries on insurance business during the accounting period; if it does not, go straight to step 3.
Determine if, during the accounting period when the CFC is carrying on insurance business, the CFC’s free assets exceeds what it is reasonable to suppose its free assets would be were it a company which is not the 51% subsidiary of any other company.
If there is excess free assets, “the step 2 amount” is —
the excess free assets, or
if less, the CFC’s free assets so far as deriving (directly or indirectly) from UK connected capital contributions.
Step 3
If no excesses are determined at steps 1 and 2, no profits fall within this Chapter.
Otherwise, the profits falling within this Chapter are the CFC’s trading finance profits so far as it is reasonable to suppose that those profits arise from the investment or other use of the step 1 amount or the step 2 amount (or both
2
For the purposes of step 1 in subsection (1) the CFC’s “free capital” is the funding it has for its business so far as the funding does not give rise to debits which are brought into account in determining the CFC’s non-trading finance profits or trading finance profits.
3
For the purposes of step 2 in subsection (1) the CFC’s “free assets” is the amount by which the value of its assets exceeds its loan capital.
4
Subsections (2) and (3) are subject to sections 371FB and 371FC and subsection (3) is also subject to subsection (6) .
5
Subsection (6) applies if —
a
the CFC, acting outside its insurance business, gives a guarantee against losses of an insurance business of another company which is connected with the CFC,
b
the guarantee is necessary for the purpose of meeting regulatory requirements applicable to the other company’s insurance business,
c
in consequence of having given the guarantee, the CFC is required by regulatory requirements applicable to its insurance business to hold more assets than it would otherwise be required to hold, and
d
during the accounting period, the CFC holds assets solely for the purpose of meeting that requirement for more assets.
6
The value of the assets held by the CFC as mentioned in subsection (5)(d) is to be deducted from the CFC’s free assets.
7
For the purposes of this section the “value” of an asset is the amount which it is reasonable to suppose the CFC would obtain for the transfer of all the CFC’s rights in respect of the asset from a person not connected with the CFC.
Qualifying loan relationships
371FB
1
Subsection (2) applies if, during the CFC’s accounting period, the CFC is the ultimate debtor in relation to a qualifying loan relationship (within the meaning of Chapter 9) of another CFC (“the creditor CFC”).
2
E% of the principal outstanding during the CFC’s accounting period on the loan which is the subject of the qualifying loan relationship is to be added to the CFC’s free capital or free assets (as the case may be).
3
“E%” is given by the following formula —
100 % × EP P
where —
EP is the total amount of the profits of the qualifying loan relationship which are exempt, and
P is the total amount of the profits of the qualifying loan relationship.
4
For the purposes of subsection (3) —
a
references to the profits of the qualifying loan relationship are to the profits of the qualifying loan relationship for accounting periods of the creditor CFC which fall wholly or partly in the CFC’s accounting period,
b
the profits of the qualifying loan relationship for an accounting period of the creditor CFC are to be determined in accordance with Chapter 9,
c
the steps in subsection (5) are to be taken to determine the amount of the profits of the qualifying loan relationship for an accounting period of the creditor CFC which are “exempt”, and
d
the profits of the qualifying loan relationship for an accounting period of the creditor CFC which falls only partly in the CFC’s accounting period, and the amount of those profits which are exempt, are to be apportioned between —
i
the part of the creditor CFC’s accounting period which falls in the CFC’s accounting period, and
ii
the part which does not,
with only those profits, and the amount of exempt profits, apportioned to the part mentioned in sub-paragraph (i) being included in P or EP (as the case may be).
5
Here are the steps referred to in subsection (4)(c) .
The steps are to be taken separately in relation to each chargeable company which makes a claim under Chapter 9 in relation to the creditor CFC’s accounting period.
The amount of the profits of the qualifying loan relationship for the creditor CFC’s accounting period which are exempt is the total of the amounts given by step 2.
Step 1
Determine the amount of the profits of the qualifying loan relationship for the accounting period which, in the case of the chargeable company, are exempt under Chapter 9.
Step 2
Multiply the amount determined at step 1 by P% (as defined in section 371BC (3) , ignoring sections 371BG (3)(a) and 371BH (3)(b) ).
Loans from foreign permanent establishments of UK resident companies
371FC
1
Subsection (2) applies if —
a
there is a company (“C”) which has made an election under section 18A of CTA 2009 (exemption for profits or losses of foreign permanent establishments),
b
during a relevant accounting period of C which begins on or after 1 January 2013, C has a creditor relationship which, applying the assumptions set out in section 18H(3) of CTA 2009 in relation to C for the relevant accounting period, would be a qualifying loan relationship (within the meaning of Chapter 9 of this Part) of C in relation to which the CFC would be the ultimate debtor,
c
in the application of section 18H(2) of CTA 2009 for the relevant accounting period, C makes a claim under Chapter 9 of this Part (as applied by section 18H(2)), and
d
the relevant accounting period falls wholly or partly in the CFC’s accounting period.
2
75% of the principal outstanding during the CFC’s accounting period on the loan which is the subject of the qualifying loan relationship is to be added to the CFC’s free capital or free assets (as the case may be).
3
Terms used in this section which are defined in section 18A of CTA 2009 have the meaning given by that section.
Exclusion: banking business
371FD
1
The HMRC Commissioners may by regulations provide that, if specified conditions are met, step 3 in section 371FA (1) is not to apply in relation to the CFC’s trading finance profits so far as they arise from banking business, or banking business of a specified description, carried on by the CFC.
2
Regulations under subsection (1) may (in particular) make provision by reference to —
a
the territory in which a CFC is resident or any territory in which its banking business is regulated or carried on, or
b
the regulatory requirements imposed from time to time in any territory in relation to banking business.
Exclusion: insurance business
371FE
1
The HMRC Commissioners may by regulations provide that, if specified conditions are met, step 3 in section 371FA (1) is not to apply in relation to the CFC’s trading finance profits so far as they arise from insurance business, or insurance business of a specified description, carried on by the CFC.
2
In subsection (1) “insurance business” does not include insurance business so far as consisting of the effecting or carrying out of contracts of insurance covered by section 371GA (2) (UK insurance contracts), including the investment of premiums received from such contracts.
3
Regulations under subsection (1) may (in particular) make provision by reference to —
a
the territory in which a CFC is resident or any territory in which its insurance business is regulated or carried on, or
b
the regulatory requirements imposed from time to time in any territory in relation to insurance business.
Chapter 7
The CFC charge gateway: captive insurance business
The basic rule
371GA
1
The CFC’s profits falling within this Chapter for the purposes of step 2 in section 371BB (1) (the CFC charge gateway) are any amounts included in its assumed total profits so far as they —
a
arise from the CFC’s insurance business,
b
fall within subsection (2) , and
c
fall within subsection (7) where applicable.
2
An amount falls within this subsection if it derives (directly or indirectly) from —
a
a contract of insurance which is entered into with —
i
a UK resident company connected with the CFC, or
ii
a non-UK resident company connected with the CFC acting through a UK permanent establishment, or
b
a contract of insurance which —
i
is entered into with a UK resident person, and
ii
is linked (directly or indirectly) to the provision of goods or services to the UK resident person by a UK connected company.
3
In subsection (2)(b)(ii) —
“services” does not include services provided as part of insurance business, and
“UK connected company” means —
a UK resident company connected with the CFC, or
a non-UK resident company connected with the CFC acting through a UK permanent establishment.
4
Subsection (2)(a)(i) does not cover a premium paid under a contract of insurance if —
a
the UK resident company has made an election under section 18A of CTA 2009 (exemption for profits or losses of foreign permanent establishments), and
b
the premium is wholly brought into account for the purpose of determining any exemption adjustment in relation to the company under that section.
5
Subsection (2)(a) covers a contract of reinsurance only so far as the original contract of insurance would fall within subsection (2)(a) .
6
Subsection (7) applies in relation to an amount if —
a
the CFC is resident in an EEA state for the accounting period, and
b
the amount does not arise from the activities of a permanent establishment which the CFC has in a territory which is not an EEA state.
7
An amount falls within this subsection so far as it derives (directly or indirectly) from a contract of insurance if —
a
the insured has no significant UK non-tax reason for entering into the contract of insurance, or
b
if the contract of insurance is a contract of reinsurance, the original insured has no significant UK non-tax reason for entering into the original contract of insurance.
8
“UK non-tax reason” means a reason other than one relating to a liability, or potential liability, of any person to tax or duty imposed under the law of the United Kingdom.
9
In this section “original contract of insurance”, in relation to a contract of reinsurance which is one in a chain of contracts of reinsurance, means the original contract of insurance reinsured by the first contract in the chain; and in subsection (7)(b) the reference to the original insured is to be read accordingly.
Chapter 8
The CFC charge gateway: solo consolidation
The basic rule
371HA
1
The CFC’s profits falling within this Chapter for the purposes of step 2 in section 371BB (1) (the CFC charge gateway) are any amounts included in its assumed total profits which are not also included in the CFC’s relevant profits amount.
2
The CFC’s “relevant profits amount” is what the relevant profits amount would be for the purposes of Chapter 3A of Part 2 of CTA 2009 (see section 18A(6) of that Act) in relation to the CFC were that amount to be determined as if —
a
the CFC were a permanent establishment in a territory outside the United Kingdom of the UK resident company mentioned in section 371CG (2)(b) or the UK resident bank mentioned in section 371CG (3) , and
b
the CFC’s accounting period were a relevant accounting period of that UK resident company or UK resident bank for the purposes of that Chapter.
Chapter 9
Exemptions for profits from qualifying loan relationships
The basic rule
371IA
1
This Chapter applies if —
a
apart from this Chapter, Chapter 5 (non-trading finance profits) would apply for a CFC’s accounting period,
b
the CFC’s non-trading finance profits include qualifying loan relationship profits, and
c
the business premises condition set out in section 371DG is met.
2
A chargeable company (“company C”) in relation to the accounting period may make a claim to an officer of Revenue and Customs for step 2 in section 371BB (1) (the CFC charge gateway) to be taken, in the case of company C only, subject to this Chapter.
3
If company C makes a claim, in the case of company C only, the CFC’s qualifying loan relationship profits pass through the CFC charge gateway so far as (and only so far as) they are not exempt under this Chapter.
4
The CFC’s “qualifying loan relationship profits” are the profits of all its qualifying loan relationships taken together.
5
The extent to which those profits are “exempt” is to be determined —
a
firstly, by applying either section 371IB or section 371ID to each of the CFC’s qualifying loan relationships, and
b
secondly, by applying section 371IE (if relevant).
6
Section 371IF sets out how to determine the profits of a qualifying loan relationship.
7
Sections 371IG to 371II define “qualifying loan relationship” etc.
8
Section 371IJ contains provision about claims under this Chapter.
9
In this Chapter references to the CFC’s non-trading finance profits are to those profits excluding any profits —
a
falling within section 371CB (3) or (4) or Chapter 8 (solo consolidation), or
b
arising from a relevant finance lease.
10
In this Chapter —
a
“loan relationship” has the meaning given by section 302(1) of CTA 2009 (and does not include anything which, although not falling within section 302(1), is treated for any purpose as if it were a loan relationship), and
b
other terms used which are defined in Part 5 of CTA 2009 are to be read accordingly.
11
See section 371CB (8) which deals with the interaction between this Chapter and section 371CB and Chapter 5 in the case of a chargeable company which makes a claim under this Chapter.
Loans funded out of qualifying resources
371IB
1
This section applies to a qualifying loan relationship if company C’s claim under this Chapter states that this section is to apply to the qualifying loan relationship.
2
X% of the profits of the qualifying loan relationship are exempt if company C’s claim establishes —
a
that, at all times during the relevant period, at least X% of the principal outstanding on the relevant loan (as that may vary from time to time during the relevant period) is funded by the CFC wholly out of qualifying resources, and
b
that the ultimate debtor in relation to the qualifying loan relationship (see section 371IG (2) to (7) ) is resident at all times during the relevant period in one territory only and that its territory of residence does not change at any time during the relevant period.
3
“X%” is the percentage specified in company C’s claim for the purposes of this section in relation to the qualifying loan relationship (which may be 100%).
4
“The relevant period” means —
a
the accounting period, or
b
if for any part of the accounting period no principal is outstanding on the relevant loan, the part of the accounting period during which there is principal outstanding.
5
“The relevant loan” means the loan which is the subject of the qualifying loan relationship.
6
“Qualifying resources” means —
a
profits of the CFC’s business so far as it consists of the making of loans to relevant members of the CFC group which are used solely for the purposes of the business of the CFC group in the relevant territory, or
b
funds or other assets received by the CFC in relation to shares held by the CFC in, or issued by the CFC to, members of the CFC group.
7
Funds or other assets received by the CFC fall within subsection (6)(b) only so far as they derive (directly or indirectly) from —
a
profits of the business of the CFC group in the relevant territory,
b
the qualifying value of relevant pre-acquisition funds or other assets (see section 371IC ), or
c
an issue of shares which meets the following requirements —
i
the shares are shares in a member of the CFC group (“the parent member”) which is not the 75% subsidiary of any company,
ii
the shares are ordinary shares which are not redeemable, and
iii
the shares are issued to persons who are not members of the CFC group.
8
Subsection (9) applies if the qualifying loan relationship is made under, or is otherwise connected (directly or indirectly) with, an arrangement under which a member of the CFC group incurs a debt in the United Kingdom to —
a
a non-UK resident person, or
b
a UK resident person who is not a member of the CFC group.
9
It is to be assumed for the purposes of subsection (2) that, at all times during the relevant period, the amount of funds or other assets —
a
out of which the principal outstanding on the relevant loan is funded by the CFC, and
b
which are not qualifying resources,
is no less than the amount of the debt mentioned in subsection (8) .
10
For the purposes of this section and section 371IC —
a
subject to subsections (11) and (12) , “the CFC group”, as at any time, means the CFC taken together with the companies with which it is connected at that time,
b
a member of the CFC group is “relevant” if it is resident in the relevant territory and no other territory,
c
“the relevant territory” means the territory of residence of the ultimate debtor mentioned in subsection (2)(b) ,
d
references to the business of the CFC group in the relevant territory do not include the making of loans to persons resident outside the relevant territory,
e
references to the profits of the business of the CFC group in the relevant territory do not include —
i
profits arising (directly or indirectly) from funds or other assets received by relevant members of the CFC group in relation to shares held by them in members of the CFC group which are not relevant members, or
ii
so far as not covered by sub-paragraph (i) , profits arising (directly or indirectly) from the business of the CFC group in any territory outside the relevant territory, and
f
section 931U of CTA 2009 (definitions of “ordinary share” and “redeemable”) applies as it applies for the purposes of Part 9A of CTA 2009 (company distributions).
11
If the CFC is controlled by one UK resident company only (“the controller”), in relation to any time before the CFC came to be controlled by the controller, except in subsection (6) , references to the CFC group include references to the controller taken together with any companies with which it is connected at that time.
12
If the CFC is controlled by two or more UK resident companies which are all connected with each other (“the controllers”), in relation to any time —
a
before which the CFC came to be controlled by the controllers, and
b
at which the controllers (or those of the controllers which exist at that time) are all connected with each other,
except in subsection (6) , references to the CFC group include references to the controllers (or those of the controllers which exist) taken together with any other companies with which they are all connected at that time.
What is the “qualifying value” of “relevant pre-acquisition funds or other assets”?
371IC
1
This section applies for the purposes of section 371IB (7)(b) .
2
It applies if —
a
a member of the CFC group acquires shares in a company (“the target company”) from persons who are not members of that group (“the unconnected persons”),
b
in consideration for the acquisition of the shares, a member of the CFC group (“the parent member”) which is not the 51% subsidiary of any company issues shares to the unconnected persons, and
c
the value of the consideration given for the acquisition of the shares by the parent member and any other members of the CFC group represents wholly or partly the value or a part of the value of any funds or other assets held by the target company.
3
Those funds or other assets are “relevant pre-acquisition funds or other assets” and, subject to what follows, their value or the part of their value represented by the value of the consideration is their “qualifying value”.
4
The qualifying value is to be reduced by Y% if one or both of the following paragraphs applies —
a
the issue of shares by the parent member to the unconnected persons represents only part of the consideration given for the acquisition of the shares in the target company;
b
in connection with the acquisition of the shares in the target company, an extraordinary distribution is made to persons holding shares in the parent member.
5
“Y%” is given by the following formula —
100 % × B A + B
where —
A is the value of the consideration which is in the form of the issue of shares by the parent member to the unconnected persons, and
B is, as the case may be —
the value of the consideration which is not in the form of the issue of shares by the parent member to the unconnected persons,
the value of the extraordinary distribution, or
the total of the values given by paragraphs (a) and (b) .
The 75% exemption
371ID
1
This section applies to a qualifying loan relationship if section 371IB does not apply to the qualifying loan relationship.
2
75% of the profits of the qualifying loan relationship are exempt.
Matched interest
371IE
1
This section applies if —
a
there are profits of qualifying loan relationships (“the leftover profits”) which are not exempt after either section 371IB or section 371ID has been applied to each qualifying loan relationship,
b
the relevant corporation tax accounting period (as defined in section 371BC (3) ) in relation to company C is a relevant accounting period of company C in relation to a period of account of the worldwide group,
c
the CFC’s accounting period ends in that period of account, and
d
apart from this section —
i
the charging of a sum on company C at step 5 in section 371BC (1) would cause section 314A (financing income amounts of chargeable companies) to apply in the case of company C, and
ii
the relevant finance profits (see section 314A (1)(d) ) would include the leftover profits.
2
All the leftover profits are exempt if, ignoring the relevant amounts, the tested income amount for the period of account is equal to or exceeds the tested expense amount for that period.
3
Otherwise, Z% of the leftover profits are exempt if the relevant amounts would cause the tested income amount for the period of account to exceed the tested expense amount for that period.
4
“Z%” is given by the following formula —
100 % × E I + R
where —
E is the amount of the excess which would be caused by the relevant amounts,
I is the amount of any increase in the tested income amount which would be caused by the relevant amounts, and
R is the amount of any reduction in the tested expense amount which would be caused by the relevant amounts.
5
“The relevant amounts” are —
a
the financing income amount for the period of account which company C would have as a result of the application of section 314A as mentioned in subsection (1)(d) so far as it would include the leftover profits, and
b
any other financing income amounts for the period of account corresponding to the amount given by paragraph (a) which members of the worldwide group who make claims under this Chapter in relation to any CFC would have.
6
For the purposes of subsection (5)(a) assume that company C’s financing income amount would include P% of the leftover profits.
7
“P%” has the meaning given by section 371BC (3) , subject to sections 371BG (3)(a) and 371BH (3)(b) .
8
Subject to what follows, terms used in this section which are defined in Part 7 (tax treatment of financing costs and income) have the same meaning as they have in Part 7.
9
In subsections (2) to (4) references to the tested income amount or the tested expense amount are to that amount determined without regard to any debits, credits or other amounts arising from UK banking business or insurance business.
10
But subsection (9) does not apply for the purpose of determining any financing income amount under section 314A or affect the way in which any such amount is to be taken into account in determining the tested income amount or the tested expense amount.
11
“UK banking business or insurance business” means banking business or insurance business carried on by —
a
a UK resident company, or
b
a non-UK resident company acting through a UK permanent establishment.
12
Part 7 has effect for the purposes of this section with the following modifications.
13
In section 261 (application of Part 7) the following are to be omitted —
a
in subsection (1), the words from “for which” to the end, and
b
subsections (2) to (5).
14
Section 337(1)(a) (which limits “the worldwide group” to “large” groups) is to be omitted.
Determining the profits of a qualifying loan relationship
371IF
Take the following steps to determine the profits of a qualifying loan relationship for the purposes of this Chapter.
Step 1
Determine the credits from the qualifying loan relationship which are brought into account in determining the CFC’s non-trading finance profits.
The result is “the step 1 credits”.
Step 2
Determine the credits and debits which are brought into account in determining the CFC’s non-trading finance profits so far as they —
are from any derivative contract or other arrangement (other than a qualifying loan relationship) entered into by the CFC as a hedge of risk in connection with the qualifying loan relationship, and
are attributable to the hedge of risk.
If the credits exceed the debits add the excess to the step 1 credits and if the debits exceed the credits subtract the deficit from the step 1 credits.
The result is “the step 2 credits”.
Step 3
Allocate to the qualifying loan relationship a just and reasonable proportion of the credits from the CFC’s relevant debtor relationships which are brought into account in determining the CFC’s non-trading finance profits (so far as not reflected in the step 2 credits).
Add the credits to the step 2 credits.
The result is “the step 3 credits”.
A debtor relationship of the CFC is “relevant” if the loan which is the subject of it is used by the CFC to fund the loan which is the subject of the qualifying loan relationship
Step 4
Allocate to the qualifying loan relationship a just and reasonable proportion of the credits and debits which are brought into account in determining the CFC’s non-trading finance profits so far as they —
are from any derivative contract or other arrangement (other than a qualifying loan relationship or a relevant debtor relationship) entered into by the CFC as a hedge of risk in connection with a relevant debtor relationship, and
are attributable to the hedge of risk.
If the credits exceed the debits add the excess to the step 3 credits and if the debits exceed the credits subtract the deficit from the step 3 credits.
The result is “the step 4 credits”.
Step 5
Allocate to the qualifying loan relationship a just and reasonable proportion of —
the debits from the CFC’s loan relationships which are brought into account in determining the CFC’s non-trading finance profits (so far as not reflected in the step 4 credits), and
any amounts set off under Chapter 16 of Part 5 of CTA 2009 (non-trading deficits) against amounts which, apart from the set off, would be included in the CFC’s non-trading finance profits.
Reduce the step 4 credits accordingly to give the profits of the qualifying loan relationship.
What is a “qualifying loan relationship”?
371IG
1
In this Chapter “qualifying loan relationship” means a creditor relationship of the CFC —
a
the ultimate debtor in relation to which is a qualifying company, and
b
which is not prevented from being a qualifying loan relationship by section 371IH .
2
In this Chapter “the ultimate debtor”, in relation to a creditor relationship of the CFC, means the debtor in relation to the creditor relationship.
This is subject to what follows.
3
Subsection (4) or (5) (as the case may be) applies if —
a
there is a loan (“loan A”) which is the subject of a creditor relationship of the CFC,
b
loan A, or a part of loan A, is made and used to fund (directly or indirectly) another loan (“loan B”) to a person (“P”), and
c
loan B, or a part of loan B, is not made and used to fund (directly or indirectly) a further loan to any person.
4
If all of loan A is made and used to fund (directly or indirectly) loan B, the ultimate debtor in relation to the CFC’s creditor relationship mentioned in subsection (3)(a) is P.
5
If only part of loan A is made and used to fund (directly or indirectly) loan B —
a
that part of loan A is to be treated for the purposes of this Chapter as a separate loan giving rise to a separate creditor relationship of the CFC, and
b
the ultimate debtor in relation to that separate creditor relationship is P.
6
If the requirement of subsection (3)(c) is met in relation to a part of loan B only, in subsections (4) and (5) references to loan B are to be read as references to that part of loan B only.
7
But neither subsection (4) nor subsection (5) applies if —
a
the debtor (“D”) in relation to the CFC’s creditor relationship is a qualifying company the main business of which is banking business or insurance business,
b
the use of loan A, or the part of loan A, as mentioned in subsection (3)(b) occurs in the ordinary course of D’s banking business or insurance business (as the case may be), and
c
P is not a UK resident qualifying company.
8
In this section “qualifying company” means a company which —
a
is connected with the CFC, and
b
is controlled by the UK resident person or persons who control the CFC.
Exclusions from definition of “qualifying loan relationship”
371IH
1
If the ultimate debtor in relation to a creditor relationship of the CFC is a non-UK resident company, the creditor relationship cannot be a qualifying loan relationship so long as some or all of the company’s debits —
a
are being brought into account for the purposes of Chapter 4 of Part 2 of CTA 2009 (UK permanent establishments of non-UK resident companies) in determining the company’s profits which are attributable to a UK permanent establishment, or
b
are being brought into account for the purposes of Part 3 of ITTOIA 2005 (property income) in determining the company’s profits of a UK property business.
2
If the ultimate debtor in relation to a creditor relationship of the CFC is a UK resident company, the creditor relationship can be a qualifying loan relationship only so long as —
a
an election under section 18A of CTA 2009 (exemption for profits or losses of foreign permanent establishments) is in effect in relation to the company, and
b
all the company’s debits are being brought into account for the purpose of determining exemption adjustments in relation to the company under that section.
3
If the ultimate debtor in relation to a creditor relationship of the CFC is another CFC, the creditor relationship cannot be a qualifying loan relationship so long as —
a
some or all of the other CFC’s debits are relevant to the application of Chapters 3 to 8 or Chapter 12 in the case of the other CFC, and
b
as a result of that, the CFC charge is not being charged in relation to the other CFC’s accounting periods or any sums charged are less than what they would otherwise have been.
4
In subsections (1) to (3) references to the debits of the company which is the ultimate debtor in relation to a creditor relationship of the CFC are references to —
a
the ultimate debtor’s debits in relation to the loan which is the subject of the CFC’s creditor relationship, or
b
if the ultimate debtor is determined in accordance with section 371IG (4) or (5) , the ultimate debtor’s debits in relation to loan B.
5
A creditor relationship of the CFC cannot be a qualifying loan relationship if it is, or is connected (directly or indirectly) to, an arrangement the main purpose, or one of the main purposes, of which is for the ultimate debtor in relation to the creditor relationship to provide (directly or indirectly) funding for —
a
a loan to another person, or
b
so far as not covered by paragraph (a), an arrangement intended to produce for any person a return in relation to any amount which it is reasonable to suppose would be a return by reference to the time value of that amount of money.
6
Subsection (5) does not apply if —
a
the main business of the ultimate debtor is banking business or insurance business, and
b
the funding for the loan or arrangement would be provided in the ordinary course of the ultimate debtor’s banking business or insurance business (as the case may be).
7
A creditor relationship of the CFC cannot be a qualifying loan relationship if —
a
the main business of the ultimate debtor in relation to the creditor relationship is banking business or insurance business, and
b
the creditor relationship is, or is connected (directly or indirectly) to, an arrangement the main purpose, or one of the main purposes, of which is for the ultimate debtor to provide (directly or indirectly) funding for a loan or arrangement as mentioned in subsection (5)(a) or (b) in order to obtain a tax advantage for the ultimate debtor.
8
A creditor relationship of the CFC cannot be a qualifying loan relationship if the loan which is the subject of the creditor relationship is made to any extent (other than a negligible one) out of funds received by the CFC (directly or indirectly) —
a
from a relevant UK connected company other than by way of a loan, or
b
as a result of an arrangement which gives rise to a deduction in the calculation of the profits of a trade of a relevant UK connected company (apart from the ultimate debtor) for the purposes of Part 3 of CTA 2009 (trading income).
9
For the purposes of subsection (8) a company is “relevant UK connected” if —
a
the company is a UK resident company connected with the CFC,
b
the company’s main business is banking business or insurance business, and
c
the company’s banking business or insurance business (as the case may be) is a trade.
10
A creditor relationship of the CFC cannot be a qualifying loan relationship if —
a
the CFC receives relevant UK funds or other assets for the purpose of funding the loan which is the subject of the CFC’s creditor relationship,
b
the provision of the relevant UK funds or other assets is itself funded (wholly or partly and directly or indirectly) by a loan made to a UK connected company by —
i
a non-UK resident person, or
ii
a UK resident person who is not connected with the CFC,
c
the relevant loan is wholly or mainly used to repay wholly or partly another loan made to the ultimate debtor by a person not connected with the ultimate debtor, and
d
the events mentioned in paragraphs (a) to (c) take place under, or are otherwise connected (directly or indirectly) with, an arrangement the main purpose, or one of the main purposes, of which is to obtain a tax advantage for any person.
11
In subsection (10) —
a
“relevant UK funds or other assets” and “UK connected company” have the same meaning as in section 371EC , and
b
in paragraph (c) “the relevant loan” means —
i
the loan which is the subject of the CFC’s creditor relationship, or
ii
if the ultimate debtor is determined in accordance with section 371IG (4) or (5) , loan B.
12
In subsections (4)(b) and (11)(b)(ii) references to loan B do not include any part of loan B —
a
which loan A is not made and used to fund, or
b
in relation to which the requirement of section 371IG (3)(c) is not met.
Power to amend definitions
371II
The HMRC Commissioners may by regulations amend this Chapter —
a
so as to amend the definition of “qualifying resources” for the purposes of section 371IB , or
b
so as to amend the definition of “qualifying loan relationship” or “ultimate debtor” for the purposes of this Chapter.
Claims
371IJ
1
A claim under this Chapter must be made by being included in company C’s company tax return for the relevant corporation tax accounting period (as defined in section 371BC (3) ).
2
The claim may be included in the return originally made or by amendment.
3
The claim may be amended or withdrawn by company C only by amending the return.
4
A claim under this Chapter may be made, amended or withdrawn at any time up to whichever is the last of the following dates —
a
the first anniversary of the filing date for company C’s company tax return for the relevant corporation tax accounting period under paragraph 14 of Schedule 18 to FA 1998;
b
if notice of enquiry is given into that return under paragraph 24 of that Schedule, 30 days after the enquiry is completed;
c
if after such an enquiry an officer of Revenue and Customs amends the return under paragraph 34(2) of that Schedule, 30 days after notice of the amendment is issued;
d
if an appeal is brought against such an amendment, 30 days after the date on which the appeal is finally determined.
5
A claim under this Chapter may be made, amended or withdrawn at a later time if an officer of Revenue and Customs allows it.
6
In any event, if after a claim under this Chapter is made there is a change of circumstances affecting the tested income amount or the tested expense amount mentioned in section 371IE (2) , the claim may be amended at any time within the period of 12 months after the change of circumstances for the purpose of taking account of the change of circumstances.
7
The time limits otherwise applicable to amendment of a company tax return do not apply to an amendment to the extent that it makes, amends or withdraws a claim under this Chapter within the time allowed by or under this section.
8
In subsection (4) references to an enquiry into a company tax return do not include an enquiry restricted to a previous amendment making, amending or withdrawing a claim under this Chapter.
9
An enquiry is so restricted if —
a
the scope of the enquiry is limited as mentioned in paragraph 25(2) of Schedule 18 to FA 1998, and
b
the amendment giving rise to the enquiry consisted of the making, amending or withdrawing of a claim under this Chapter.
Chapter 10
The exempt period exemption
Introduction to Chapter
371JA
1
This Chapter sets out an exemption called “the exempt period exemption” for the purposes of section 371BA (2)(b) .
2
Section 371JE also provides for adjustments of profits which would otherwise pass through the CFC charge gateway (see section 371BB (2)(b) ) linked to the exempt period exemption.
The basic rule
371JB
1
The exempt period exemption applies for a CFC’s accounting period if —
a
the accounting period ends during an exempt period of the CFC (see sections 371JC and 371JD ),
b
the subsequent period condition is met, and
c
the chargeable company condition is met.
2
The subsequent period condition is met if —
a
the CFC does not cease to be a CFC before having at least one accounting period which begins after the end of the exempt period, and
b
section 371BC (charging the CFC charge) does not apply in relation to the CFC’s first accounting period to begin after the end of the exempt period (see section 371BA (2) ).
3
The chargeable company condition is met if, at all times during the relevant period —
a
the charging condition in section 371JC is met, and
b
each company which would be a chargeable company for the purposes of that condition is an original chargeable company or is connected with an original chargeable company.
4
In subsection (3) —
“original chargeable company” means a company which, for the purposes of the charging condition in section 371JC , would be a chargeable company at the beginning of the exempt period, and
“the relevant period” means the period which —
begins immediately after the beginning of the exempt period, and
ends at the end of the CFC’s first accounting period to begin after the end of the exempt period.
5
This section is subject to section 371JF (anti-avoidance).
When does an exempt period begin?
371JC
1
An exempt period of a CFC begins at any time (“the relevant time”) during an accounting period of the CFC if —
a
the initial condition is met,
b
the charging condition is met at the relevant time, and
c
at no time during the relevant preceding period (if there is one) is the charging condition met.
2
The initial condition is met if —
a
immediately before the relevant time, the company (“C”) which is the CFC is carrying on a business, or
b
if the relevant time is the time at which C is incorporated or formed, C is incorporated or formed by one or more persons for the purpose of controlling one or more companies in circumstances where it is expected that an exempt period will begin in relation to one or more of those companies when C begins to control the company or companies.
3
To determine if the charging condition is met at any time, assume —
a
that the company which is the CFC is a CFC at the time in question if that is not otherwise the case,
b
that the time in question is itself an accounting period of the CFC, and
c
that section 371BC (charging the CFC charge) applies in relation to the assumed accounting period.
4
The charging condition is met at the time in question if, as a result of steps 1, 3 and 4 in section 371BC (1) , there would be one or more chargeable companies in relation to the assumed accounting period.
5
“The relevant preceding period” means the period of 12 months ending immediately before the relevant time, excluding any part of that period during which the company which is the CFC does not exist.
How long is an exempt period?
371JD
1
Subject to what follows, an exempt period of a CFC lasts 12 months.
2
Subsection (3) applies if a notice is given to an officer of Revenue and Customs requesting that the length of an exempt period of a CFC be extended (or further extended).
3
An officer of Revenue and Customs may extend (or further extend) the length of the exempt period.
4
A notice under subsection (2) must be given no later than the end of the exempt period (as it stands at the time the notice is given).
5
A notice under subsection (2) may be given only by a company which, at the time the notice is given, would be a chargeable company for the purposes of the charging condition in section 371JC .
Adjustment of profits passing through the CFC charge gateway
371JE
1
This section applies for a CFC’s accounting period if —
a
the accounting period begins, but does not end, during an exempt period of the CFC, and
b
the subsequent period condition and the chargeable company condition in section 371JB are both met.
2
The CFC’s assumed total profits which would otherwise pass through the CFC charge gateway are to be adjusted to ensure that no profits which arise in the exempt period, as determined on a just and reasonable basis, pass through the CFC charge gateway.
3
This section is subject to section 371JF (anti-avoidance).
Anti-avoidance
371JF
1
The exempt period exemption does not apply for a CFC’s accounting period (“the relevant accounting period”) if condition A or B is met.
2
Condition A is that —
a
an arrangement is entered into at any time,
b
the main purpose, or one of the main purposes, of the arrangement is to secure a tax advantage for any person,
c
the arrangement is linked to the exempt period exemption applying or being expected to apply (apart from this section) —
i
for the relevant accounting period, or
ii
for that period and one or more other accounting periods of the CFC, and
d
the arrangement involves one or both of the following —
i
the CFC holding assets which give rise to non-trading finance profits or trading finance profits of the CFC, or
ii
the CFC holding intellectual property which gives rise to any income of the CFC.
3
Condition B is that —
a
an arrangement is entered into at any time,
b
in consequence of the arrangement, the length of any accounting period of the CFC is less than 12 months, and
c
the main purpose, or one of the main purposes, of the arrangement is to secure that the exempt period exemption applies —
i
for the relevant accounting period, or
ii
for that period and one or more other accounting periods of the CFC.
4
In this section references to the exempt period exemption include references to section 371JE .
Amendment of company tax returns
371JG
1
This section applies in relation to a company’s company tax return for a corporation tax accounting period if an exempt period of a CFC falls (wholly or partly) in the corporation tax accounting period.
2
Any amendment of the return which relates to the application (or non-application) of the exempt period exemption or section 371JE for an accounting period of the CFC may be made by the company at any time no later than 12 months after the relevant filing date.
3
“The relevant filing date” means the date which is the filing date under paragraph 14 of Schedule 18 to FA 1998 for the company’s company tax return for its corporation tax accounting period in which ends the CFC’s first accounting period to begin after the end of the exempt period.
4
“Corporation tax accounting period” means an accounting period for corporation tax purposes.
Chapter 11
The excluded territories exemption
Introduction to Chapter
371KA
This Chapter sets out an exemption called “the excluded territories exemption” for the purposes of section 371BA (2)(b) .
The basic rule
371KB
1
The excluded territories exemption applies for a CFC’s accounting period if —
a
the CFC is resident (see section 371KC ) in an excluded territory for the accounting period,
b
the total of the following amounts is no more than the threshold amount for the accounting period (see section 371KD ) —
i
the CFC’s category A income (if any) for the accounting period (see sections 371KE and 371KF ),
ii
the CFC’s category B income (if any) for the accounting period (see section 371KG ),
iii
the CFC’s category C income (if any) for the accounting period (see section 371KH ), and
iv
the CFC’s category D income (if any) for the accounting period (see section 371KI ),
c
the IP condition is met (see section 371KJ ), and
d
the CFC is not, at any time during the accounting period, involved in an arrangement the main purpose, or one of the main purposes, of which is to obtain a tax advantage for any person.
2
In this Chapter “excluded territory” means a territory specified as such in regulations made by the HMRC Commissioners.
3
The HMRC Commissioners may also by regulations, in relation to CFCs resident in a specified excluded territory or to other specified cases, do one or more of the following —
a
provide that one or both of the requirements set out in subsection (1)(b) and (c) does not have to be met in order for the excluded territories exemption to apply;
b
modify one or both of those requirements, including by modifying any provision of this Chapter mentioned in subsection (1)(b) or (c) ;
c
specify further requirements which must be met in order for the excluded territories exemption to apply.
4
If an amount is included in more than one of the categories of income mentioned in subsection (1)(b)(i) to (iv) , the amount is to be counted only once in determining if the threshold amount is exceeded.
How to determine the territory in which a CFC is resident
371KC
1
For the purposes of this Chapter the territory in which a CFC is resident for an accounting period is to be determined in accordance with this section; and in this Chapter “the CFC’s territory” means that territory as so determined.
2
The CFC is taken to be resident in the territory determined in accordance with section 371TA .
3
But section 371TA (1)(b) is to be applied only if, at all times during the accounting period, the CFC or persons with interests in the CFC are liable under the law of the territory in question to tax on the CFC’s income.
4
If, as a result of subsection (3) , no territory of residence can be determined, the excluded territories exemption cannot apply for the accounting period.
What is “the threshold amount”?
371KD
1
The threshold amount for a CFC’s accounting period is —
a
10% of the CFC’s accounting profits for the accounting period, or
b
if more, £50,000.
2
If the accounting period is less than 12 months, the amount specified in subsection (1)(b) is to be reduced proportionately.
3
In this Chapter references to a CFC’s accounting profits for an accounting period are to be read ignoring section 371VD (7) and (8) .
Category A income: the basic rule
371KE
1
A CFC’s category A income for an accounting period consists of any gross amounts (that is, amounts before deduction of expenses or transfers to or from reserves) of any relevant income to which subsection (3) , (4) or (5) applies.
This is subject to section 371KF .
2
“Relevant income” means any income of the CFC which —
a
is brought into account in determining the CFC’s accounting profits for the accounting period, or
b
is not so brought into account but arises in the accounting period.
3
This subsection applies to any relevant income (apart from any dividend or other distribution of a company) so far as it is exempt from tax in the CFC’s territory.
4
This subsection applies to any relevant income so far as the tax which falls to be paid in respect of the relevant income in the CFC’s territory is at a reduced rate by virtue of a provision having effect under the law of that territory the purpose of which is (wholly or mainly) to encourage (directly or indirectly) investment in that territory.
5
This subsection applies to any relevant income if —
a
any tax falls to be paid in respect of the relevant income in the CFC’s territory,
b
under the law of that territory, the CFC, any person who has an interest in the CFC or any person connected with the CFC is entitled to any repayment of tax or any payment in respect of a credit for tax, and
c
that repayment or payment —
i
is directly or indirectly in respect of the whole or part of the tax mentioned in paragraph (a) , but
ii
is not a form of relief in respect of losses incurred by the CFC.
Category A income: permanent establishments in excluded territories
371KF
1
This section applies if —
a
a CFC’s category A income for an accounting period would include (apart from this section) the gross amount of any relevant income which arises from the activities of a permanent establishment (“PE”) which the CFC has in a territory outside the CFC’s territory, and
b
the territory in which PE is established is an excluded territory.
2
The gross amount of that relevant income is to be included in the CFC’s category A income only so far as it would also have been included had the references in section 371KE (3) to (5) to the CFC’s territory instead been references to the territory in which PE is established.
Category B income
371KG
1
A CFC’s category B income for an accounting period consists of any notional interest which —
a
is deducted from any of the CFC’s relevant income for tax purposes under the law of the CFC’s territory or any territory in which the CFC has a permanent establishment, but
b
is not deducted in determining the CFC’s assumed taxable total profits for the accounting period.
2
But the CFC’s category B income is not to exceed its relevant non-local income.
3
“Notional interest” means an amount representing a notional interest expense or other financing charge calculated by reference to any of the CFC’s equity or debt.
4
“Relevant income” has the same meaning as in section 371KE .
5
“Relevant non-local income” means the gross amount (that is, the amount before deduction of expenses or transfers to or from reserves) of any non-trading income —
a
which is included in the CFC’s relevant income, and
b
which is received (directly or indirectly) from —
i
a person resident outside the CFC’s territory, or
ii
a permanent establishment which a person resident in the CFC’s territory (apart from the CFC itself) has in a territory outside the CFC’s territory.
Category C income
371KH
A CFC’s category C income for an accounting period is the total of the following amounts —
a
amounts included in the CFC’s accounting profits for the period which fall within section 371VD (4)(a) (whether or not those amounts would have been included in those profits apart from section 371VD (4)(a) ), and
b
amounts included in those profits by virtue only of section 371VD (4)(b) .
Category D income
371KI
1
A CFC’s category D income for an accounting period consists of the gross amounts (that is, the amounts before deduction of expenses or transfers to or from reserves) of any income which —
a
is brought into account in determining the CFC’s accounting profits for the accounting period, and
b
is to be included in the CFC’s category D income in accordance with subsection (3) or (4) .
2
Subsection (3) applies if —
a
income arises from any provision made or imposed by means of an arrangement as between the CFC and any company connected with the CFC,
b
in the CFC’s territory, the income is reduced by an amount (“the relevant amount”) for tax purposes on the basis that the income is more than what it would have been had the company connected with the CFC not been connected with the CFC, and
c
there is not in any territory a corresponding increase for tax purposes in the income of a company connected with the CFC.
3
The relevant amount is to be included in the CFC’s category D income.
4
Income is to be included in the CFC’s category D income so far as the tax which falls to be paid in respect of the income in the CFC’s territory is at a reduced rate by virtue of a ruling or other decision or an arrangement made in relation to the CFC by a governmental authority in that territory.
The IP condition
371KJ
1
This section applies for the purposes of section 371KB (1)(c) .
2
The IP condition is met unless —
a
the CFC’s assumed total profits for the accounting period include amounts arising from intellectual property held by the CFC (“the exploited IP”),
b
all or parts of the exploited IP were —
i
transferred (directly or indirectly) to the CFC by persons related to the CFC at times during the relevant period, or
ii
otherwise derived (directly or indirectly) at times during that period out of or from intellectual property held at times during that period by persons related to the CFC,
c
as a result of those transfers or other derivations, the value of the intellectual property held by those persons related to the CFC, taken together, has been significantly reduced from what it would otherwise have been, and
d
if only parts of the exploited IP were so transferred or derived, the significance condition is met.
3
The significance condition is met if —
a
the parts of the exploited IP (“the UK derived IP”) which were transferred or otherwise derived as mentioned in subsection (2)(b) are, taken together, a significant part of the exploited IP, or
b
as a result of the transfers or other derivations of the UK derived IP, the CFC’s assumed total profits for the accounting period are significantly higher than what they would otherwise have been.
4
In relation to a non-UK resident person who is related to the CFC, in this section references to the transfer or holding of intellectual property by a person related to the CFC are limited to, as the case may be —
a
the transfer of intellectual property which before the transfer was held by the non-UK resident person (wholly or partly) for the purposes of a permanent establishment which the person has in the United Kingdom, or
b
the holding of intellectual property by the non-UK resident person (wholly or partly) for those purposes.
5
“The relevant period” means the period covering the accounting period and the 6 years before the accounting period.
Chapter 12
The low profits exemption
Introduction to Chapter
371LA
This Chapter sets out an exemption called “the low profits exemption” for the purposes of section 371BA (2)(b) .
The basic rule
371LB
1
The low profits exemption applies for a CFC’s accounting period if subsection (2) , (3) , (4) or (5) applies.
2
This subsection applies if the CFC’s accounting profits for the accounting period are no more than £50,000.
3
This subsection applies if the CFC’s assumed taxable total profits for the accounting period are no more than £50,000.
4
This subsection applies if —
a
the CFC’s accounting profits for the accounting period are no more than £500,000, and
b
the amount of those profits representing non-trading income is no more than £50,000.
5
This subsection applies if —
a
the CFC’s assumed taxable total profits for the accounting period are no more than £500,000, and
b
the amount of those profits representing non-trading income is no more than £50,000.
6
If the accounting period is less than 12 months, the amounts specified in subsections (2) , (3) , (4)(a) and (b) and (5)(a) and (b) are to be reduced proportionately.
Anti-avoidance
371LC
1
The low profits exemption does not apply for a CFC’s accounting period (“the relevant accounting period”) if condition A or B is met.
2
Condition A is that —
a
an arrangement is entered into at any time,
b
in consequence of the arrangement, the low profits exemption would (apart from this section) apply for the relevant accounting period, and
c
the main purpose, or one of the main purposes, of the arrangement is to secure that the low profits exemption applies —
i
for the relevant accounting period, or
ii
for that period and one or more other accounting periods of the CFC.
3
Condition B is that, at any time during the relevant accounting period, the CFC’s business is, wholly or mainly, the provision of UK intermediary services.
4
For the purposes of subsection (3) the CFC provides “UK intermediary services” if —
a
a UK resident individual (“the service provider”) personally performs, or is under an obligation personally to perform, services in the United Kingdom for a person (“the client”), and
b
the services are provided not under a contract directly between the service provider and the client but under an arrangement involving the CFC.
5
The low profits exemption does not apply for a CFC’s accounting period by virtue of section 371LB (2) or (4) if condition C is met.
6
Condition C is that, in determining the CFC’s assumed taxable total profits for the accounting period, Part 21B of CTA 2010 (group mismatch schemes) has effect so as to exclude an amount from being brought into account as a debit or credit for the purposes of Part 5 of CTA 2009 (loan relationships) or Part 7 of that Act (derivative contracts).
Chapter 13
The low profit margin exemption
Introduction to Chapter
371MA
This Chapter sets out an exemption called “the low profit margin exemption” for the purposes of section 371BA (2)(b) .
The basic rule
371MB
1
The low profit margin exemption applies for a CFC’s accounting period if the CFC’s accounting profits for the period are no more than 10% of the CFC’s relevant operating expenditure.
2
In this section references to the CFC’s accounting profits are to those profits as determined before any deduction for interest.
3
The CFC’s “relevant operating expenditure” is its operating expenditure brought into account in determining its accounting profits for the accounting period, excluding —
a
the cost of goods purchased by the CFC, other than goods used by the CFC in the territory in which it is resident for the accounting period, and
b
any expenditure which gives rise, directly or indirectly, to income of a person related to the CFC.
Anti-avoidance
371MC
The low profit margin exemption does not apply for a CFC’s accounting period (“the relevant accounting period”) if —
a
an arrangement is entered into at any time,
b
in consequence of the arrangement, the low profit margin exemption would (apart from this section) apply for the relevant accounting period, and
c
the main purpose, or one of the main purposes, of the arrangement is to secure that the low profit margin exemption applies —
i
for the relevant accounting period, or
ii
for that period and one or more other accounting periods of the CFC.
Chapter 14
The tax exemption
Introduction to Chapter
371NA
This Chapter sets out an exemption called “the tax exemption” for the purposes of section 371BA (2)(b) .
The basic rule
371NB
1
Take the following steps to determine if the tax exemption applies for a CFC’s accounting period.
Step 1
Applying section 371TB , determine the territory (“the CFC’s territory”) in which the CFC is resident for the accounting period.
If no territory of residence can be determined by applying section 371TB, the tax exemption cannot apply and no further steps are to be taken.
Step 2
Determine the amount of tax (“the local tax amount”) which is paid in the CFC’s territory in respect of the CFC’s local chargeable profits arising in the accounting period (applying section 371NC so far as relevant).
If the local tax amount is determined under designer rate tax provisions (see section 371ND), the tax exemption cannot apply and step 3 is not to be taken.
Step 3
In accordance with section 371NE , determine the amount of the corresponding UK tax for the accounting period.
The tax exemption applies if the local tax amount is at least 75% of the corresponding UK tax.
2
Subsection (3) applies if an amount of tax is paid in the CFC’s territory by a person (whether or not the CFC) in respect of any of the CFC’s local chargeable profits arising in the accounting period taken together with other amounts.
3
For the purposes of step 2 in subsection (1) the amount of tax is to be apportioned between the CFC’s local chargeable profits in question and the other amounts on a just and reasonable basis.
4
In this Chapter references to the CFC’s local chargeable profits are to its profits as determined for tax purposes under the law of the CFC’s territory, ignoring any capital gains or losses.
Reductions to “the local tax amount”
371NC
1
This section applies for the purposes of step 2 in section 371NB (1) .
2
The local tax amount is to be reduced to what it would have been —
a
had any income, or any income and expenditure (where the income exceeds the expenditure), to which subsection (3) applies not been brought into account in determining the CFC’s local chargeable profits arising in the accounting period in respect of which tax is paid in the CFC’s territory, and
b
had any expenditure to which subsection (4) applies been brought into account in determining those profits.
3
This subsection applies to any income, or any income and expenditure, of the CFC —
a
which is brought into account in determining the CFC’s local chargeable profits arising in the accounting period in respect of which tax is paid in the CFC’s territory, but
b
which does not fall to be brought into account in determining the CFC’s assumed taxable total profits for the accounting period.
4
This subsection applies to any expenditure of the CFC —
a
which is not brought into account in determining the CFC’s local chargeable profits arising in the accounting period in respect of which tax is paid in the CFC’s territory, but
b
which does fall to be brought into account in determining the CFC’s assumed taxable total profits for the accounting period.
5
Subsection (6) applies if —
a
in the CFC’s territory any tax falls to be paid in respect of the CFC’s local chargeable profits arising in the accounting period,
b
under the law of that territory, any repayment of tax, or any payment in respect of a credit for tax, is made to any person, and
c
that repayment or payment is directly or indirectly in respect of the whole or part of the tax mentioned in paragraph (a) .
6
The local tax amount is to be reduced (or further reduced after any reduction under subsection (2) ) by the amount of that repayment or payment.
What are “designer rate tax provisions”?
371ND
1
For the purposes of step 2 in section 371NB (1) “designer rate tax provisions” means provisions —
a
which appear to the HMRC Commissioners to be designed to enable companies to exercise significant control over the amount of tax which they pay, and
b
which are specified in regulations made by the HMRC Commissioners.
2
Regulations under subsection (1) may make different provision for different cases or with respect to different territories.
How to determine “the corresponding UK tax”
371NE
1
For the purposes of step 3 in section 371NB (1) “the corresponding UK tax” is the amount of corporation tax which, applying the corporation tax assumptions, would be charged in respect of the CFC’s assumed taxable total profits for the accounting period.
2
In determining that amount of corporation tax —
a
ignore any relief from corporation tax attributable to the local tax amount which would be given to the CFC by virtue of Part 2 (double taxation relief) in respect of any income, and
b
deduct from what would otherwise be that amount of corporation tax —
i
any amount which, applying the corporation tax assumptions, would be set off against corporation tax on the CFC’s assumed taxable total profits by virtue of section 967 of CTA 2010 (cases in which a company receives a payment bearing income tax), and
ii
any amount of income tax or corporation tax actually charged in respect of any income included in the CFC’s assumed taxable total profits.
3
In subsection (2)(b) the references to an amount being set off or an amount actually charged do not include so much of any such amount as has been or falls to be repaid to the CFC whether on the making of a claim or otherwise.
Chapter 15
Relevant interests in a CFC
Introduction
Application of Chapter
371OA
This Chapter applies for the purpose of determining the persons who have “relevant interests” in a CFC for the purposes of step 1 in section 371BC (1) .
Provision about interpretation
371OB
1
This section applies for the purposes of this Chapter.
2
A person’s interest in a company is an “indirect” interest so far as the person has the interest by virtue of having an interest in another company; and references to a “direct” interest in a company are to be read accordingly.
3
An interest held by an open-ended investment company within the meaning of Chapter 2 of Part 13 of CTA 2010 (see sections 613 and 615) is treated as held by the company’s shareholders in proportion to their shareholdings.
4
An interest held by the trustees of an authorised unit trust is treated as held by the persons who have rights under the trust in proportion to their rights.
5
An interest held by a bare trustee or nominee (including by virtue of subsection (3) or (4) ) is treated as held by the person or persons for whom the bare trustee or nominee holds the interest.
6
“Bare trustee” means a person acting as trustee for —
a
a person absolutely entitled as against the trustee,
b
two or more persons who are so entitled,
c
a person who would be so entitled but for being a minor or otherwise lacking legal capacity, or
d
two or more persons who would be so entitled but for all or any of them being a minor or otherwise lacking legal capacity.
7
Subsection (8) applies in a case not covered by subsection (5) if —
a
an interest is held in a fiduciary or representative capacity (including by virtue of subsection (3) or (4) ), and
b
there are one or more identifiable beneficiaries.
8
The interest is taken to be held by that beneficiary or, as the case may be, apportioned between those beneficiaries on a just and reasonable basis.
What is a “relevant interest” in a CFC?
“Relevant interests” of UK resident companies
371OC
1
A UK resident company’s interest in a CFC is a “relevant interest”, except so far as subsection (2) applies to it.
2
This subsection applies to the interest so far as it is an indirect interest which the UK resident company has by virtue of having an interest in another UK resident company.
“Relevant interests” of persons related to UK resident companies
371OD
1
This section applies if, by virtue of section 371OC , a UK resident company (“UKRC”) has a relevant interest in a CFC.
2
A related person’s interest in the CFC is a “relevant interest”, except so far as subsection (4) or (5) applies to it.
3
“Related person” means a person, other than a UK resident company, who is connected or associated with UKRC.
4
This subsection applies to the related person’s interest so far as it is an indirect interest which the related person has by virtue of having an interest in a UK resident company or another related person.
5
This subsection applies to the interest so far as it is the same as UKRC’s relevant interest in the CFC by virtue of UKRC having an interest in the related person.
Other “relevant interests”
371OE
1
This section applies if a person (“P”) has a direct interest in a CFC which is not a relevant interest by virtue of section 371OC or 371OD .
2
P’s direct interest is a “relevant interest”, except so far as subsection (3) applies to it.
3
This subsection applies to P’s direct interest so far as it is the same as another person’s relevant interest in the CFC by virtue of the other person having an interest in P.
4
In subsection (3) the reference to another person’s relevant interest is to another person’s relevant interest by virtue of section 371OC or 371OD .
Chapter 16
Creditable tax of a CFC
What is “creditable tax”?
371PA
1
For the purposes of step 2 in section 371BC (1) a CFC’s creditable tax for an accounting period is the total of —
a
the amount of any relief from corporation tax attributable to any foreign tax which, applying the corporation tax assumptions, would be given to the CFC by virtue of Part 2 (double taxation relief) in respect of any income included or represented in the CFC’s chargeable profits for the accounting period,
b
any amount of relevant income tax which, applying the corporation tax assumptions, would be set off against corporation tax on the CFC’s chargeable profits for the accounting period by virtue of section 967 of CTA 2010 (cases in which a company receives a payment bearing income tax),
c
any amount of income tax or corporation tax actually charged in respect of any income included or represented in the CFC’s chargeable profits for the accounting period, and
d
any amount of a foreign CFC charge paid in respect of any income included or represented in the CFC’s chargeable profits for the accounting period.
2
In subsection (1)(a) “foreign tax” means —
a
the local tax amount, or
b
any tax under the law of a relevant foreign territory.
3
In subsection (1)(b) “relevant income tax” means income tax which the CFC bears by deduction on a payment so far as the payment is included or represented in the CFC’s chargeable profits.
4
In subsection (1)(d) “foreign CFC charge” means a charge under the law of a relevant foreign territory (by whatever name known) which is similar to the CFC charge.
5
In subsection (1)(b) to (d) references to an amount being set off, an amount actually charged or an amount paid do not include so much of any such amount as has been or falls to be repaid to the CFC or any other person whether on the making of a claim or otherwise.
6
“Relevant foreign territory” means a territory outside the United Kingdom other than the territory in which the CFC is resident for the accounting period.
Chapter 17
Apportionment of a CFC’s chargeable profits and creditable tax
Introduction
Application of Chapter
371QA
This Chapter applies for the purpose of apportioning a CFC’s chargeable profits and creditable tax for an accounting period among the relevant persons as required by step 3 in section 371BC (1) .
Provision about interpretation
371QB
1
This section applies for the purposes of this Chapter.
2
Section 371OB applies as it applies for the purposes of Chapter 15.
3
“Ordinary shares”, in relation to any company, means shares of a single class, however described, which is the only class of share issued by the company.
4
For the purposes of subsection (3) —
a
“share” includes a fraction of a share, and
b
shares issued by a company which are paid up to different amounts are not to be taken to be of a single class.
5
A person (“P”) holds ordinary shares in the CFC “indirectly” if P directly holds ordinary shares in a company which is share-linked to the CFC.
6
A company is “share-linked” to the CFC if it has an interest in the CFC only by virtue of it holding directly —
a
ordinary shares in the CFC, or
b
ordinary shares in another company which is share-linked to the CFC (whether by virtue of paragraph (a) or this paragraph),
and “share-linked company” means a company which is share-linked to the CFC.
How are the apportionments to be made?
The basic rules
371QC
1
If conditions X to Z are met, the CFC’s chargeable profits and creditable tax are to be apportioned among the relevant persons in accordance with section 371QD .
2
If not, the percentage of the chargeable profits and the percentage of the creditable tax to be apportioned to each relevant person is to be determined on a just and reasonable basis.
3
Condition X is that the relevant persons all have their relevant interests by virtue only of their holding, directly or indirectly, ordinary shares in the CFC.
4
Condition Y is that each relevant person meets the requirement that the person is either —
a
UK resident at all times during the accounting period, or
b
non-UK resident at all times during the accounting period.
5
Condition Z is that no company which has an intermediate interest in the CFC at any time in the accounting period has that interest otherwise than by virtue of holding, directly or indirectly, ordinary shares in the CFC.
6
A company (“C”) has an “intermediate interest” in the CFC if —
a
C has an interest in the CFC, and
b
one or more of the relevant persons have relevant interests in the CFC by virtue of having an interest in C.
Apportionments to be made in proportion to shareholding
371QD
1
If conditions X to Z in section 371QC are met, apply subsections (2) and (3) to each relevant person.
2
Determine the percentage (“P%”) of the issued ordinary shares in the CFC represented by the relevant person’s relevant interest.
3
P% of the CFC’s chargeable profits and P% of the CFC’s creditable tax is then apportioned to the relevant person.
4
This section is supplemented by sections 371QE and 371QF .
Indirect shareholdings
371QE
1
This section applies to the relevant interest of a relevant person (“R”) so far as R has that interest by virtue of holding, indirectly, ordinary shares in the CFC (“the relevant shares”).
2
The percentage of the issued ordinary shares in the CFC represented by R’s relevant interest (so far as this section applies to it) is given by the following formula —
P × S
where —
P is the product of the appropriate fractions of R and each of the share-linked companies through which R indirectly holds the relevant shares, other than the share-linked company which directly holds the relevant shares, and
S is the percentage of the issued ordinary shares in the CFC which the relevant shares represent.
3
“The appropriate fraction”, in relation to any person who directly holds ordinary shares in a share-linked company, means that fraction of the issued ordinary shares in the share-linked company which the holding represents.
4
If R has different indirect holdings of shares in the CFC (as in the case where different shares are held through different share-linked companies) —
a
apply subsection (2) separately in relation to each holding (reading references to the relevant shares accordingly), and
b
then add the separate results together to give the total percentage of the issued ordinary shares in the CFC represented by R’s relevant interest (so far as this section applies to it).
Variable shareholdings
371QF
1
This section applies if the percentage of the issued ordinary shares in the CFC represented by a relevant person’s relevant interest varies during the accounting period.
2
That percentage is taken to be the percentage equal to the sum of the relevant percentages for each holding period.
3
“Holding period” means a part of the accounting period during which the percentage of the issued ordinary shares in the CFC represented by the relevant person’s relevant interest remains the same.
4
“Relevant percentage”, in relation to a holding period, means the percentage given by the following formula —
P × H A
where —
P is the percentage of the issued ordinary shares in the CFC represented by the relevant person’s relevant interest during the holding period,
H is the number of days in the holding period, and
A is the number of days in the accounting period.
Anti-avoidance
371QG
1
This section applies in relation to an accounting period (“the relevant accounting period”) of a CFC if —
a
at any time an arrangement is entered into, and
b
the main purpose, or one of the main purposes, of the arrangement is to obtain for any person a tax advantage within section 1139(2)(da) of CTA 2010 in relation to —
i
the relevant accounting period, or
ii
that period and one or more other accounting periods of the CFC.
2
The CFC’s chargeable profits and creditable tax for the relevant accounting period are to be apportioned in accordance with section 371QC (2) (and not section 371QD if that section would otherwise apply).
3
The apportionments must (in particular) be made in a way which, so far as practicable, counteracts the effects of the arrangement mentioned in subsection (1)(a) so far as those effects are referable to the purpose mentioned in subsection (1)(b) .
Chapter 18
Control etc
Overview of Chapter
371RA
1
Sections 371RB and 371RE set out how to determine for the purposes of this Part if a company is “controlled” by another person or persons.
2
Section 371RC sets out certain cases in which a non-UK resident company which would not otherwise be a CFC is to be taken to be a CFC for the purposes of this Part.
Legal and economic control
371RB
1
A person (“P”) “controls” a company (“C”) if —
a
by means of the holding of shares or the possession of voting power in or in relation to C or any other company, or
b
by virtue of any powers conferred by the articles of association or other document regulating C or any other company,
P has the power to secure that the affairs of C are conducted in accordance with P’s wishes.
2
A person (“P”) “controls” a company (“C”) if it is reasonable to suppose that P would —
a
if the whole of C’s share capital were disposed of, receive (directly or indirectly and whether at the time of the disposal or later) over 50% of the proceeds of the disposal,
b
if the whole of C’s income were distributed, receive (directly or indirectly and whether at the time of the distribution or later) over 50% of the distributed amount, or
c
in the event of the winding-up of C or in any other circumstances, receive (directly or indirectly and whether at the time of the winding-up or other circumstances or later) over 50% of C’s assets which would then be available for distribution.
3
For the purposes of subsection (2) any rights which P has as a relevant bank are to be ignored.
4
In subsection (2) —
a
in paragraph (a) the reference to C’s share capital is to C’s share capital excluding any share capital held by relevant banks,
b
in determining for the purposes of paragraph (b) the percentage of the distributed amount which it is reasonable to suppose P would receive, ignore any rights of a relevant bank which would entitle the bank directly to receive a percentage of the distributed amount at the time of the distribution, and
c
in determining for the purposes of paragraph (c) the percentage of C’s assets which it is reasonable to suppose P would receive, ignore any rights of a relevant bank which would entitle the bank directly to receive a percentage of C’s assets at the time of the winding-up or other circumstances.
5
“Relevant bank” means a person (“RB”) who —
a
carries on banking business which is regulated in the territory in which RB is resident, and
b
is acting, in the ordinary course of that business, in relation to money lent to C by RB in the ordinary course of that business.
6
In subsections (2) and (4) references to P receiving any proceeds, amount or assets include references to the proceeds, amount or assets being applied (directly or indirectly) for P’s benefit.
7
If two or more persons, taken together, meet the requirement of subsection (1) or (2) for controlling a company, those persons are taken to control the company.
Legal and economic control: the 40% rule
371RC
1
This section applies to a non-UK resident company (“C”) if —
a
in accordance with section 371RB (7) , two persons (“the controllers”) control C, and
b
one of the controllers is UK resident and the other is non-UK resident.
2
If conditions X and Y are met, C is to be taken to be a CFC (if C would not otherwise be).
3
Condition X is that the UK resident controller has interests, rights and powers representing at least 40% of the holdings, rights and powers in respect of which the controllers fall to be taken as controlling C.
4
Condition Y is that the non-UK resident controller has interests, rights and powers representing —
a
at least 40%, but
b
no more than 55%,
of the holdings, rights and powers in respect of which the controllers fall to be taken as controlling C.
Legal and economic control: supplementary provision
371RD
1
Subsection (2) applies for the purpose of —
a
determining, in accordance with section 371RB , if a person, or two or more persons, control a company, or
b
determining if condition X or Y in section 371RC is met in relation to two persons who control a company.
2
There is to be attributed to each person all the rights and powers mentioned in subsection (3) (so far as they would not otherwise be attributed to the person).
3
The rights and powers referred to in subsection (2) are —
a
rights and powers which the person (“P”) is entitled to acquire at a future date or which P will, at a future date, become entitled to acquire,
b
rights and powers of other persons so far as they fall within subsection (4) ,
c
if P is UK resident, rights and powers of any UK resident person who is connected with P, and
d
if P is UK resident, rights and powers which would, in accordance with subsection (2) , be attributed to a UK resident person (“Q”) who is connected with P if Q were P (including rights and powers which would be attributed to Q by virtue of this paragraph).
4
Rights and powers fall within this subsection so far as they —
a
are required, or may be required, to be exercised in one or more of the following ways —
i
on behalf of P,
ii
under the direction of P, or
iii
for the benefit of P, and
b
are not confined, in a case where a loan has been made by one person to another, to rights and powers conferred in relation to property of the borrower by the terms of any security relating to the loan.
5
In subsections (3)(b) to (d) and (4) references to a person’s rights and powers include references to any rights or powers which the person —
a
is entitled to acquire at a future date, or
b
will, at a future date, become entitled to acquire.
6
In determining for the purposes of this section whether one person is connected with another, section 1122(4) of CTA 2010 (as applied by section 371VF (2)(b) ) is to be ignored.
7
In this section and sections 371RB and 371RC references to —
a
rights and powers of a person, or
b
rights and powers which a person is or will become entitled to acquire,
include references to rights and powers which are exercisable by that person, or (when acquired by that person) will be exercisable, only jointly with one or more other persons.
Control determined by reference to accounting standards
371RE
1
A person (“P”) “controls” a company (“C”) at any time when P is C’s parent undertaking.
2
But C is not to be taken to be a CFC by virtue of subsection (1) at the time in question unless the 50% condition is met at that time.
3
To determine if the 50% condition is met at the time in question, assume —
a
that C is a CFC at that time,
b
that that time is itself an accounting period of the CFC, and
c
that section 371BC (charging the CFC charge) applies in relation to the assumed accounting period.
4
The 50% condition is met at the time in question if, as a result of steps 1 and 3 in section 371BC (1) , at least 50% of the CFC’s chargeable profits would be apportioned to P taken together with its UK resident subsidiary undertakings (if any).
5
“Parent undertaking” and “subsidiary undertaking” are to be read in accordance with Financial Reporting Standard 2 issued in July 1992 by the Accounting Standards Board, as from time to time modified, amended or revised.
6
For the purposes of this section it does not matter if P does not prepare, or is not required to prepare, consolidated financial statements in accordance with Financial Reporting Standard 2 (but see section 371RF (3) ).
Power to amend section 371RE etc
371RF
1
The Treasury may by regulations amend section 371RE as they consider appropriate to take account of —
a
any modification, amendment or revision of Financial Reporting Standard 2, or
b
any relevant document.
2
“Relevant document” means —
a
a document which replaces Financial Reporting Standard 2, or
b
a document which replaces, modifies, amends or revises a document falling within paragraph (a) or a document which is a relevant document by virtue of this paragraph.
3
The Treasury may by regulations make provision corresponding to section 371RE —
a
which operates by reference to any other accounting standard dealing with consolidated financial statements, and
b
which is to apply, instead of section 371RE , to determine if a person “controls” a company where that person prepares, or is required to prepare, consolidated financial statements in accordance with that standard.
4
The Treasury may by regulations provide that, if specified conditions are met, a company is not to be taken to be a CFC by virtue of —
a
section 371RE , or
b
provision corresponding to section 371RE contained in regulations under subsection (3) .
5
In subsections (3) and (4) references to section 371RE are to that section as amended from time to time by regulations under subsection (1) .
Chapter 19
Assumed taxable total profits, assumed total profits and the corporation tax assumptions
Overview
Overview of Chapter
371SA
This Chapter explains the concepts of “assumed taxable total profits” and “assumed total profits” (see section 371SB ) and “the corporation tax assumptions” (see section 371SC ) which are referred to in this Part.
“Assumed taxable total profits” and “assumed total profits”
What are “assumed taxable total profits” and “assumed total profits”?
371SB
1
For the purposes of this Part a CFC’s “assumed taxable total profits” for an accounting period are what, applying the corporation tax assumptions, would be the CFC’s taxable total profits of the accounting period for corporation tax purposes.
2
“Taxable total profits” has the meaning given by section 4(2) of CTA 2010 (calculation of taxable total profits).
3
But, for this purpose, in section 4(3) of CTA 2010 —
a
step 1 is to be applied subject to subsections (4) to (6) below, and
b
step 2 is to be ignored.
4
Any income which accrues during the accounting period to the trustees of a settlement in relation to which the CFC is a settlor or a beneficiary is to be added to the income determined at step 1.
5
If there is more than one settlor or beneficiary in relation to the settlement, the income is to be apportioned between the CFC and the other settlors or beneficiaries on a just and reasonable basis.
6
If by virtue of subsection (4) any income (“the settlement income”) is added to the income determined at step 1, any dividend or other distribution which derives from the settlement income is to be excluded from the income determined at step 1.
7
Subsection (8) applies if there is any income which, by virtue of subsection (4) , would (apart from subsection (8) ) be included in —
a
the chargeable profits for an accounting period of a CFC which is a beneficiary in relation to a settlement, and
b
the chargeable profits for an accounting period of a CFC which is a settlor in relation to the settlement.
8
If the CFC charge is charged in relation to the beneficiary’s accounting period, the income is not to be included in the settlor’s chargeable profits.
9
For the purposes of this Part a CFC’s “assumed total profits” for an accounting period are its assumed taxable total profits for the period before taking step 2 in section 4(2) of CTA 2010.
“The corporation tax assumptions”
What are “the corporation tax assumptions”?
371SC
1
In this Part “the corporation tax assumptions” means the assumptions set out in sections 371SD to 371SR .
2
The corporation tax assumptions are to be applied in determining the following for an accounting period (“the relevant accounting period”) of a CFC —
a
the CFC’s assumed taxable total profits in accordance with section 371SB (1) ,
b
the corresponding UK tax in accordance with section 371NE , and
c
the CFC’s creditable tax in accordance with Chapter 16.
UK residence etc
371SD
1
Assume —
a
that the CFC is UK resident at all times during the relevant accounting period,
b
if the relevant accounting period is not the CFC’s first accounting period, that the CFC has been UK resident from the beginning of the CFC’s first accounting period, and
c
except where the CFC ceases to be a CFC at the end of the relevant accounting period, that the CFC will continue to be UK resident until it ceases to be a CFC,
and that the CFC is, has been and will continue to be within the charge to corporation tax, and that its accounting periods (as determined in accordance with section 371VB ) are accounting periods for corporation tax purposes, accordingly.
2
Subsection (1) —
a
does not require it to be assumed that there is any change in the place or places at which the CFC carries on its activities, and
b
requires (in particular) that it be assumed that the CFC does not get the benefit of section 1279 of CTA 2009 (exemption for profits from securities free of tax to residents abroad).
3
If the CFC is (actually) UK resident immediately before the beginning of its first accounting period, assume that its UK residence from the beginning of that accounting period (as assumed in accordance with subsection (1) ) is not continuous with its (actual) UK residence before the beginning of that accounting period.
4
Except where the relevant accounting period is the CFC’s first accounting period, assume that a determination of the CFC’s assumed taxable total profits has been made for all previous accounting periods back to (and including) the CFC’s first accounting period.
5
Subsection (4) applies (in particular) for the purpose of applying any relief which is relevant to two or more accounting periods.
6
In this section references to the CFC’s first accounting period are to the CFC’s accounting period which begins when it becomes a CFC.
Close company
371SE
Assume that the CFC is not a close company.
Claims and elections
371SF
1
In relation to any relief under the Corporation Tax Acts which is dependent upon the making of a claim or election, assume the CFC —
a
to have made that claim or election which would give the maximum amount of relief, and
b
to have made that claim or election within any applicable time limit.
2
Subsection (1) does not cover (so far as it would otherwise do so) a claim or election under —
a
section 18A of CTA 2009 (exemption for profits or losses of foreign permanent establishments),
b
section 1275 of CTA 2009 (relief for unremittable income),
c
section 9A of CTA 2010 (designated currency of a UK resident investment company), or
d
regulations made under paragraph 16 of Schedule 8 to FA 2006 (election for lease to be treated as long funding lease).
3
Subsection (1) is also subject to section 371SK (5) .
Disapplication of assumption in section 371SF (1)
371SG
1
This section applies if a notice is given to an officer of Revenue and Customs requesting that the CFC be assumed —
a
not to have made for the relevant accounting period a specified claim or election otherwise covered by section 371SF (1) ,
b
to have made for the relevant accounting period a specified claim or election, being different from one assumed by section 371SF (1) but being one which (subject to compliance with any applicable time limit) could have been made by a company within the charge to corporation tax, or
c
to have disclaimed or required the postponement, in whole or in part, of a specified allowance for the relevant accounting period if (subject to compliance with any applicable time limit) a company within the charge to corporation tax could have disclaimed the allowance or required such a postponement (as the case may be).
2
In determining for the purposes of section 371BA (3) the CFC’s assumed total profits and the amounts to be relieved against those profits at step 2 in section 4(2) of CTA 2010 —
a
the assumption set out in the notice under subsection (1) is to be applied so far as relevant, and
b
the assumption set out in section 371SF (1) is to be disapplied to the extent necessary as a consequence.
3
In determining the CFC’s creditable tax —
a
the assumption set out in the notice under subsection (1) is to be applied so far as relevant, and
b
the assumption set out in section 371SF (1) is to be disapplied to the extent necessary as a consequence.
4
The claims which may be specified in a notice under subsection (1) by virtue of paragraph (b) include claims under the provision mentioned in section 371SF (2)(b) or 371SK (5) .
5
A notice under subsection (1) —
a
may be given only by a company or companies determined under subsection (6) or (7) , and
b
must be given —
i
within 20 months after the end of the relevant accounting period, or
ii
within such longer period as an officer of Revenue and Customs may allow.
6
A company may give a notice if —
a
the company would be a chargeable company were section 371BC (charging the CFC charge) to apply in relation to the relevant accounting period, and
b
the percentage of the CFC’s chargeable profits which would be apportioned to the company at step 3 in section 371BC (1) would represent more than half of X%.
7
Two or more companies may together give a notice if —
a
the companies would all be chargeable companies were section 371BC (charging the CFC charge) to apply in relation to the relevant accounting period, and
b
the percentage of the CFC’s chargeable profits which would be apportioned to the companies, taken together, at step 3 in section 371BC (1) would represent more than half of X%.
8
In subsections (6) and (7) “X%” means the total percentage of the CFC’s chargeable profits which would be apportioned to chargeable companies at step 3 in section 371BC (1) were section 371BC (charging the CFC charge) to apply in relation to the relevant accounting period.
Elections under section 9A of CTA 2010
371SH
1
This section applies if —
a
during the relevant accounting period or any earlier accounting period of the CFC, a notice is given to an officer of Revenue and Customs requesting that the CFC be assumed to have made an election under section 9A of CTA 2010 (designated currency of a UK resident investment company) in the form specified in the notice, and
b
the time at which the notice is given is a time at which, applying the corporation tax assumptions apart from this section, the CFC would have been able to make an election under that section in the form specified in the notice (see, in particular, section 9A(2)).
2
Assume —
a
that an election under section 9A of CTA 2010 has been made by the CFC in the form specified in the notice under subsection (1) at the time in question, and
b
that, accordingly, sections 9A and 9B of that Act apply to determine the effect (if any) of that election.
3
Subsection (2)(b) does not apply if —
a
a notice is given to an officer of Revenue and Customs revoking the notice under subsection (1) , and
b
the time at which the notice revoking the notice under subsection (1) is given is a time at which, applying the corporation tax assumptions apart from this section and the assumption in subsection (2)(a) , the CFC would have been able to revoke its assumed election under section 9A of CTA 2010.
4
A notice under subsection (1) or (3) may be given only by a company or companies determined under subsection (5) or (6) .
5
A company may give a notice if —
a
the company would be likely to be a chargeable company in relation to the applicable accounting period were section 371BC (charging the CFC charge) to apply in relation to that period, and
b
the percentage of the CFC’s chargeable profits for the applicable accounting period which would be likely to be apportioned to the company at step 3 in section 371BC (1) would represent more than half of X%.
6
Two or more companies may together give a notice if —
a
the companies would all be likely to be chargeable companies in relation to the applicable accounting period were section 371BC (charging the CFC charge) to apply in relation to that period, and
b
the percentage of the CFC’s chargeable profits for the applicable accounting period which would be likely to be apportioned to the companies, taken together, at step 3 in section 371BC (1) would represent more than half of X%.
7
In subsections (5) and (6) (and this subsection) —
“the applicable accounting period” means the accounting period of the CFC during which the notice under subsection (1) or (3) (as the case may be) is given, and
“X%” means the total percentage of the CFC’s chargeable profits for the applicable accounting period which would be likely to be apportioned to chargeable companies at step 3 in section 371BC (1) were section 371BC (charging the CFC charge) to apply in relation to the applicable accounting period.
Modification of sections 6 and 7 of CTA 2010
371SI
1
This section applies if —
a
in accordance with section 371SH , the CFC is assumed to have made an election under section 9A of CTA 2010, but
b
applying the corporation tax assumptions apart from this section, section 6 or 7 of CTA 2010 could not apply in relation to the CFC for a period of account because the CFC does not prepare its accounts in accordance with generally accepted accounting practice.
2
If sterling is the CFC’s designated currency for the period of account, assume that section 6 of CTA 2010 applies in relation to the CFC as if the words “in accordance with generally accepted accounting practice” were —
a
omitted from subsection (1A)(a), and
b
in subsection (2), inserted after “its accounts in sterling”.
3
If the CFC’s designated currency for the period of account is a currency other than sterling, assume that section 7 of CTA 2010 applies in relation to the CFC as if the words “in accordance with generally accepted accounting practice” were —
a
omitted from subsection (1A)(a), and
b
at step 1 in subsection (2), inserted after “that currency”.
Elections for leases to be treated as long funding leases
371SJ
1
This section applies if —
a
a notice is given to an officer of Revenue and Customs requesting that the CFC be assumed to have made a long funding lease election in the form specified in the notice, and
b
the time at which the notice is given is a time at which, applying the corporation tax assumptions apart from this section, the CFC would have been able to make a long funding lease election in the form specified in the notice.
2
Assume —
a
that a long funding lease election has been made by the CFC in the form specified in the notice under subsection (1) at the time in question, and
b
that, accordingly, regulation 2(5) of the 2007 Regulations applies to determine the effect (if any) of that election.
3
Subsection (2)(b) does not apply if —
a
a notice is given to an officer of Revenue and Customs withdrawing the notice under subsection (1) , and
b
the time at which the notice withdrawing the notice under subsection (1) is given is a time at which, applying the corporation tax assumptions apart from this section and the assumption in subsection (2)(a) , the CFC would have been able to withdraw its assumed long funding lease election.
4
A notice under subsection (1) or (3) may be given only by a company or companies determined under subsection (5) or (6) .
5
A company may give a notice if —
a
the company would be likely to be a chargeable company in relation to the applicable accounting period were section 371BC (charging the CFC charge) to apply in relation to that period, and
b
the percentage of the CFC’s chargeable profits for the applicable accounting period which would be likely to be apportioned to the company at step 3 in section 371BC (1) would represent more than half of X%.
6
Two or more companies may together give a notice if —
a
the companies would all be likely to be chargeable companies in relation to the applicable accounting period were section 371BC (charging the CFC charge) to apply in relation to that period, and
b
the percentage of the CFC’s chargeable profits for the applicable accounting period which would be likely to be apportioned to the companies, taken together, at step 3 in section 371BC (1) would represent more than half of X%.
7
In this section —
a
“the 2007 Regulations” means the Long Funding Leases (Elections) Regulations 2007 ( S.I. 2007/304 ),
b
terms defined in the 2007 Regulations have the same meaning as they have in the 2007 Regulations,
c
“the applicable accounting period” means the CFC’s accounting period in which falls the effective date specified in the notice under subsection (1) , and
d
“X%” means the total percentage of the CFC’s chargeable profits for the applicable accounting period which would be likely to be apportioned to chargeable companies at step 3 in section 371BC (1) were section 371BC (charging the CFC charge) to apply in relation to the applicable accounting period.
8
The Treasury may by regulations amend this section as they consider appropriate to take account of any regulations made by them from time to time under paragraph 16 of Schedule 8 to FA 2006 (elections for leases to be treated as long funding leases).
Intangible fixed assets
371SK
1
This section applies for the purpose of applying Part 8 of CTA 2009 (intangible fixed assets).
2
Assume that any intangible fixed asset acquired or created by the CFC before its first accounting period was acquired or created by the CFC at the beginning of that accounting period at a cost equal to its value recognised for accounting purposes at that time.
3
In subsection (2) references to the CFC’s first accounting period are to the CFC’s accounting period which begins when it becomes a CFC.
4
The assumption in subsection (2) does not affect the determination of the question whether Part 8 of CTA 2009 applies to an asset in accordance with section 882 of that Act (application of Part 8 to assets created or acquired on or after 1 April 2002).
5
Assume also that the CFC —
a
has not claimed any relief under Chapter 7 of Part 8 of CTA 2009 (roll-over relief in case of reinvestment), or
b
made any provisional declaration of entitlement to such relief.
6
Subsection (5) is subject to section 371SG (4) .
Group relief etc
371SL
1
Assume that the CFC is neither a member of a group of companies nor a member of a consortium for the purposes of any provision of the Tax Acts.
2
Subsection (3) applies if —
a
under Part 5 of CTA 2010 (group relief) the CFC actually surrenders any relief which is allowed to another company by way of group relief, but
b
applying the corporation tax assumptions apart from subsection (3) , the relief would reduce the CFC’s assumed taxable total profits for the relevant accounting period.
3
Assume that the relief is to be ignored in determining the CFC’s assumed taxable total profits for the relevant accounting period.
Capital allowances
371SM
1
This section applies if, before the CFC’s first accounting period, the CFC incurred any capital expenditure on the provision of plant or machinery for the purposes of its trade.
2
For the purposes of Part 2 of CAA 2001 (plant and machinery allowances) assume that the plant or machinery —
a
was provided for purposes wholly other than those of the trade, and
b
was not brought into use for the purposes of the trade until the beginning of the CFC’s first accounting period,
and that section 13 of CAA 2001 (use for qualifying activity of plant or machinery provided for other purposes) applies accordingly.
3
In this section references to the CFC’s first accounting period are to the CFC’s accounting period which begins when it becomes a CFC.
4
This section is to be read as if it were contained in Part 2 of CAA 2001.
Unremittable overseas income
371SN
1
For the purposes of Part 18 of CTA 2009 (unremittable overseas income) assume that in section 1274(1)(a), (3) and (4) of that Act references to the United Kingdom are references to the relevant territories.
2
“The relevant territories” means —
a
the United Kingdom,
b
the territory in which the CFC is taken to be resident for the relevant accounting period as determined under Chapter 20, and
c
any other territory in which the CFC is in fact resident at any time during the relevant accounting period.
Tax advantages
371SO
1
This section applies if there is an arrangement or other conduct a purpose of which is to obtain a tax advantage within section 1139(2)(da) of CTA 2010 by obtaining by any means what would, applying the corporation tax assumptions apart from this section, be a tax advantage within section 1139(2)(a) to (d) of that Act.
2
So far as they would not otherwise do so, the Corporation Tax Acts are to be assumed to apply in relation to the arrangement or other conduct in the same way as they would apply were the purpose of obtaining a tax advantage within section 1139(2)(da) of CTA 2010 the purpose of obtaining an actual tax advantage within section 1139(2)(a) to (d) of that Act by the means in question.
Disguised interest: application of Chapter 2A of Part 6 of CTA 2009
371SP
1
This section applies if —
a
applying the corporation tax assumptions apart from this section, Chapter 2A of Part 6 of CTA 2009 (disguised interest) would, but for section 486D(1) of that Act, apply in relation to a return produced for the CFC by an arrangement to which the CFC is a party, and
b
it is reasonable to assume that the main purpose, or one of the main purposes, of the CFC being a party to the arrangement is to obtain a tax advantage within section 1139(2)(da) of CTA 2010 for any person by obtaining what would, applying the corporation tax assumptions apart from this section, be a relevant tax advantage in relation to the CFC.
2
Chapter 2A of Part 6 of CTA 2009 is to be assumed to apply in relation to the return.
3
In subsection (1)(b) the reference to obtaining what would be a relevant tax advantage is to be read in accordance with section 486D(4) of CTA 2009.
4
This section is without prejudice to the generality of section 371SO .
Shares accounted for as liabilities: application of section 521C of CTA 2009
371SQ
1
This section applies if —
a
applying the corporation tax assumptions apart from this section, section 521C of CTA 2009 (shares accounted for as liabilities) would, but for section 521C(1)(f) of that Act, apply to a share held by the CFC, and
b
the main purpose, or one of the main purposes, for which the CFC holds the share is to obtain a tax advantage within section 1139(2)(da) of CTA 2010 for any person by obtaining what would, applying the corporation tax assumptions apart from this section, be a relevant tax advantage in relation to the CFC.
2
Section 521C of CTA 2009 is to be assumed to apply to the share.
3
In subsection (1)(b) the reference to obtaining what would be a relevant tax advantage is to be read in accordance with section 521E(4) of CTA 2009.
4
This section is without prejudice to the generality of section 371SO .
Double taxation relief: counteraction notices
371SR
1
This section applies if it is reasonable to suppose that, applying the corporation tax assumptions apart from this section, each of conditions A to D of section 82 (double taxation relief: conditions to be met for giving of counteraction notice) would or might be met in relation to the CFC in relation to the relevant accounting period.
2
Assume that such adjustments are to be made as are necessary for counteracting what, applying the corporation tax assumptions apart from this section, would be the effects of the scheme or arrangement in question in the relevant accounting period that would be referable to the purpose referred to in condition B of section 82.
Chapter 20
Residence of CFCs
The basic rule
371TA
1
For the purposes of this Part a CFC is taken to be resident for an accounting period (“the relevant accounting period”) in —
a
the territory determined by applying section 371TB , or
b
if no territory can be determined by applying that section —
i
if subsection (2) applies, the territory in which the CFC is taken to be resident under the double taxation arrangements in question, or
ii
otherwise, the territory in which the CFC is incorporated or formed.
2
This subsection applies if the CFC is incorporated or formed in the United Kingdom but is taken to be non-UK resident by virtue of section 18 of CTA 2009 (companies treated as non-UK resident under double taxation arrangements).
3
This section is subject to section 371KC and step 1 in section 371NB (1) .
How to determine the territory in which the CFC is resident
371TB
1
The CFC is taken to be resident in the territory under the law of which, at all times during the relevant accounting period, the CFC is liable to tax by reason of domicile, residence or place of management.
2
If there are two or more territories (each of which is called an “eligible territory”) falling within subsection (1) , the CFC is taken to be resident in only one of the eligible territories.
3
To determine that territory, go through the following subsections.
If two or more subsections apply, the earlier or earliest subsection takes precedence.
4
If an election or designation under subsection (8) or (9) has effect for the relevant accounting period by virtue of section 371TC (9)(b) , the CFC is taken to be resident in the eligible territory which is the subject of the election or designation.
5
If, at all times during the relevant accounting period, the CFC’s place of effective management is situated in one of the eligible territories only, the CFC is taken to be resident in that territory.
6
If —
a
at all times during the relevant accounting period, the CFC’s place of effective management is situated in two or more of the eligible territories, and
b
immediately before the end of the relevant accounting period, over 50% of the amount of the CFC’s assets is situated in one of those eligible territories,
the CFC is taken to be resident in the territory in which over 50% of the amount of the CFC’s assets is situated.
For this purpose, the amount of the CFC’s assets is determined by reference to their market value immediately before the end of the relevant accounting period.
7
If, immediately before the end of the relevant accounting period, over 50% of the amount of the CFC’s assets is situated in one of the eligible territories, the CFC is taken to be resident in that territory.
For this purpose, the amount of the CFC’s assets is determined by reference to their market value immediately before the end of the relevant accounting period.
8
If, in accordance with section 371TC (1) , an election specifying an eligible territory is made, the CFC is taken to be resident in that territory.
9
If an officer of Revenue and Customs designates an eligible territory on a just and reasonable basis (see section 371TC (6) to (8) ), the CFC is taken to be resident in that territory.
Elections and designations about residence
371TC
1
An election under section 371TB (8) —
a
may be made only by a company or companies determined under subsection (2) or (3) ,
b
must be made by notice to an officer of Revenue and Customs,
c
must be made no later than 12 months after the end of the relevant accounting period,
d
must state, in relation to each company making the election, the percentage of the CFC’s chargeable profits for the relevant accounting period which would be likely to be apportioned to the company at step 3 in section 371BC (1) were section 371BC (charging the CFC charge) to apply in relation to the relevant accounting period,
e
must be signed on behalf of each company making the election, and
f
is irrevocable.
2
A company may make an election if it is likely that, were section 371BC (charging the CFC charge) to apply in relation to the relevant accounting period, the company would be a chargeable company whose apportioned percentage of the CFC’s chargeable profits for the relevant accounting period would represent more than half of X%.
3
Two or more companies may together make an election if it is likely that, were section 371BC (charging the CFC charge) to apply in relation to the relevant accounting period, the companies would all be chargeable companies whose apportioned percentage of the CFC’s chargeable profits for the relevant accounting period would, taken together, represent more than half of X%.
4
In subsections (2) and (3) “X%” means the total percentage of the CFC’s chargeable profits for the relevant accounting period which would be likely to be apportioned to chargeable companies were section 371BC (charging the CFC charge) to apply in relation to the relevant accounting period.
5
In subsections (2) to (4) references to apportioned percentages of the CFC’s chargeable profits for the relevant accounting period are to the percentages apportioned at step 3 in section 371BC (1) .
6
A designation under section 371TB (9) is irrevocable.
7
An officer of Revenue and Customs must give notice of a designation to each company which the officer considers would be likely to be a chargeable company were the CFC charge to be charged in relation to the relevant accounting period.
8
The notice must specify —
a
the date on which the designation was made,
b
the CFC’s name,
c
the relevant accounting period, and
d
the territory designated.
9
An election or designation has effect in relation to —
a
the relevant accounting period, and
b
each successive accounting period of the CFC until subsection (10) applies to an accounting period,
regardless of any change in the persons who have interests in the CFC or any change in those interests.
10
This subsection applies to an accounting period (“the later period”) if —
a
one or more of the territories which were eligible territories in relation to the relevant accounting period does not fall within section 371TB (1) in relation to the later period, or
b
some other territory also falls within section 371TB (1) in relation to the later period.
Chapter 21
Management
Introduction to Chapter
371UA
1
The HMRC Commissioners are responsible for the management of the CFC charge, including the collection of sums charged.
2
In this Chapter —
“closure notice” means a notice under paragraph 32 of Schedule 18 to FA 1998 (completion of enquiry and statement of conclusions),
“discovery assessment” means a discovery assessment or discovery determination under paragraph 41 of that Schedule (including an assessment by virtue of paragraph 52 of that Schedule), and
“the Taxes Acts” has the same meaning as in TMA 1970.
Application of the Taxes Acts to the CFC charge
371UB
1
The provision of step 5 in section 371BC (1) relating to the charging of a sum as if it were an amount of corporation tax is to be taken as applying all enactments applying generally to corporation tax.
2
This is subject to —
a
the provisions of the Taxes Acts, and
b
any necessary modifications.
3
The enactments referred to in subsection (1) include —
a
those relating to returns of information and the supply of accounts, statements and reports,
b
those relating to the assessing, collecting and receiving of corporation tax,
c
those conferring or regulating a right of appeal, and
d
those concerning administration, penalties, interest on unpaid tax and priority of tax in cases of insolvency under the law of any part of the United Kingdom.
4
In particular, TMA 1970 is to have effect as if —
a
any reference to corporation tax included a reference to a sum charged at step 5 in section 371BC (1) as if it were an amount of corporation tax, and
b
any reference to profits of a company included, in the case of a chargeable company in relation to a CFC’s accounting period, references to the percentage of the CFC’s chargeable profits in respect of which the company is charged at step 5 in section 371BC (1) .
5
Nothing in —
a
paragraph 10 of Schedule 18 to FA 1998 (claims or elections in company tax returns), or
b
Schedule 1A to TMA 1970 (claims or elections not included in returns),
applies to an election under section 371TB (8) .
Just and reasonable apportionments
371UC
1
This section applies if —
a
an apportionment of a CFC’s chargeable profits and creditable tax is to be made in accordance with section 371QC (2) , and
b
a company tax return is made or amended using for the apportionment a particular basis adopted by the company making the return.
2
An officer of Revenue and Customs may determine that another basis is to be used for the apportionment; and matters are then to proceed as if that were the only basis allowed by the Taxes Acts.
3
The officer’s determination may be questioned on an appeal against an amendment of the company’s tax return made under paragraph 30 or 34 of Schedule 18 to FA 1998.
4
But it may be questioned only on the ground that the basis of apportionment determined by the officer is not just and reasonable.
Relief against sum charged
371UD
1
Subsection (2) applies if (apart from subsection (2) ) a chargeable company in relation to a CFC’s accounting period is entitled, or on the making of a claim would be entitled, to a deduction in respect of a relevant allowance for the relevant corporation tax accounting period.
2
The company may make a claim under this subsection for relief in respect of the relevant allowance.
3
If the company makes a claim, the relief is given by setting off the relevant sum against the sum charged on the company at step 5 in section 371BC (1) .
4
“The relevant sum” is the sum equal to corporation tax at the appropriate rate on so much of the relevant allowance as is specified in the claim.
5
So much of the relevant allowance as is specified in the claim is to be taken for the purposes of the Tax Acts as having been allowed as a deduction in accordance with the appropriate provision of those Acts.
6
No other relief is available against a sum charged on a company at step 5 in section 371BC (1) .
7
In this section —
a
“the appropriate rate” and “the relevant corporation tax accounting period” have the meaning given by section 371BC (3) , and
b
“relevant allowance” means —
i
any loss to which section 37 or 62(1) to (3) of CTA 2010 applies,
ii
any qualifying charitable donation,
iii
any expenses of management to which section 1219(1) of CTA 2009 applies,
iv
any adjusted BLAGAB management expenses for the purposes of section 73 of FA 2012,
v
any excess to which section 260(3) of CAA 2001 applies,
vi
any amount available to the company by way of group relief, or
vii
any non-trading deficit on the company’s loan relationships.
8
But, in relation to a sum charged on a company by virtue of section 371BH (2) , in this section —
a
“the appropriate rate” means the rate given by section 371BH (3)(a) , and
b
“relevant allowance” means any adjusted BLAGAB management expenses for the purposes of section 73 of FA 2012.
Appeals affecting more than one person
371UE
1
This section applies if —
a
a relevant appeal involves any question concerning the application of this Part in relation to a particular person, and
b
the resolution of that question is likely to affect the liability under this Part of any other person in relation to the CFC concerned.
2
Each of the following is a “relevant appeal” —
a
an appeal under paragraph 34(3) of Schedule 18 to FA 1998 against an amendment of a company tax return, and
b
an appeal under paragraph 48 of that Schedule against a discovery assessment.
3
The appeal is to be conducted as follows.
4
Each of the persons whose liability under this Part is likely to be affected by the resolution of the question is entitled to be a party to the proceedings.
5
The tribunal must determine the question separately from any other questions in the proceedings.
6
The tribunal’s determination on the question is to have effect as if made in an appeal to which each of those persons was a party.
Recovery of sum charged from other UK resident companies
371UF
1
This section applies if a sum charged on a company (“the defaulting company”) at step 5 in section 371BC (1) as if it were an amount of corporation tax is not fully paid before the date on which it is due and payable in accordance with the Taxes Acts.
2
An officer of Revenue and Customs may give a notice of liability to another UK resident company which holds or has held (directly or indirectly) the whole or any part of the same interest in the CFC concerned as is or was held by the defaulting company.
3
If such a notice is given to a company (“the responsible company”), the following are payable by the responsible company —
a
the whole or, as the case may be, the corresponding part of the sum charged so far as it is unpaid as at the time the notice is given,
b
the whole or, as the case may be, the corresponding part of any unpaid interest due on the sum charged as at the time the notice is given, and
c
any interest accruing on the sum charged after the notice is given so far as referable to the sum payable by the responsible company under paragraph (a) .
4
Subsection (5) applies if any sum payable by the responsible company under subsection (3) is not fully paid by the end of the period of 3 months starting with the date on which the notice is given.
5
Without affecting the right of recovery from the responsible company, the outstanding amount may be recovered from the defaulting company.
Chapter 22
Supplementary provision
Definitions
371VA
In this Part —
“accounting period”, in relation to a CFC, is to be read in accordance with section 371VB ,
“accounting profits”, in relation to a CFC, is to be read in accordance with sections 371VC and 371VD ,
“arrangement” includes —
any agreement, scheme, transaction or understanding (whether or not legally enforceable), and
a series of arrangements or a part of an arrangement,
“assumed taxable total profits”, in relation to a CFC, is to be read in accordance with section 371SB (1) to (6) ,
“assumed total profits”, in relation to a CFC, is to be read in accordance with section 371SB (9) , subject to section 371DA (2) ,
“banking business” means the business of —
banking, deposit-taking, money-lending or debt-factoring, or
any activity similar to an activity falling within paragraph (a) ,
“CFC” is to be read in accordance with section 371AA (3) , subject to sections 371RC and 371RE (2) and regulations under section 371RF (4) ,
“the CFC charge” is to be read in accordance with section 371AA (1) ,
“chargeable company”, in relation to a CFC’s accounting period, means a company which is a chargeable company for the purposes of step 4 in section 371BC (1) ,
“chargeable profits”, in relation to a CFC, is to be read in accordance with section 371BA (3) ,
“company” is to be read subject to section 371VE ,
“company tax return” means a return required to be made under Schedule 18 to FA 1998,
“contract of insurance” has the meaning given by article 3(1) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001,
“control” is to be read in accordance with sections 371RB and 371RE , subject to section 371RF ,
“the corporation tax assumptions” is to be read in accordance with section 371SC ,
“creditable tax”, in relation to a CFC, is to be read in accordance with section 371PA ,
“the HMRC Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs,
“insurance business” means the business of effecting or carrying out of contracts of insurance, including the investment of premiums received,
“intellectual property” means —
any patent, trade mark, registered design, copyright or design right, or
any licence or other right in relation to anything falling within paragraph (a) ,
“interest”, as in an interest in a company, is to be read in accordance with section 371VH ,
“the local tax amount”, in relation to a CFC, means the amount of tax determined at step 2 in section 371NB (1) ,
“non-trading finance profits” is to be read in accordance with section 371VG ,
“non-trading income” means income which is not trading income,
“property business profits” is to be read in accordance with section 371VI ,
“relevant finance lease” means —
a long funding lease for the purposes of Part 2 of CAA 2001 (plant and machinery allowances), or
a short lease for the purposes of that Part which meets the finance lease test in section 70N of that Act,
and includes a part of such a lease,
“relevant interest” is to be read in accordance with Chapter 15,
“tax advantage” has the meaning given by section 1139 of CTA 2010,
“trading finance profits” is to be read in accordance with section 371VG ,
“trading income”, in relation to a CFC, means income brought into account in determining the CFC’s trading profits for the accounting period in question,
“trading profits”, in relation to a CFC, means any profits included in the CFC’s assumed total profits for the accounting period in question on the basis that they would be chargeable to corporation tax under Part 3 of CTA 2009 (trading income),
“UK connected capital contribution”, in relation to a CFC, means any capital contribution to the CFC made (directly or indirectly) by a UK resident company connected with the CFC (whether in relation to an issue of shares in the CFC or otherwise), and
“UK permanent establishment”, in relation to a non-UK resident company, means a permanent establishment which the company has in the United Kingdom and through which it carries on a trade in the United Kingdom.
Accounting periods
371VB
1
This section applies for the purposes of this Part.
2
An accounting period of a CFC begins —
a
when the CFC becomes a CFC, or
b
immediately after the end of the previous accounting period of the CFC, if the CFC is still a CFC.
3
An accounting period of a CFC comes to an end on the occurrence of any of the following —
a
the CFC ceasing to be a CFC,
b
the CFC becoming, or ceasing to be, liable to tax in a territory by reason of domicile, residence or place of management,
c
the CFC ceasing to have any source of income at all, or
d
a company which has a relevant interest in the CFC ceasing to have any relevant interest in the CFC at all or ceasing to be within the charge to corporation tax.
4
Without affecting subsections (2) and (3) , sections 10(1)(a) to (d), (i) and (j) and (5), 11(1) and (2) and 12 of CTA 2009 (corporation tax accounting periods) apply as they apply for corporation tax purposes.
5
Subsection (6) applies if it appears to an officer of Revenue and Customs that the beginning or end of a CFC’s accounting period is uncertain.
6
An officer of Revenue and Customs may by notice specify as an accounting period of the CFC such period not exceeding 12 months as the officer considers appropriate.
7
Subsection (8) applies if after the giving of a notice under subsection (6) —
a
further facts come to the knowledge of an officer of Revenue and Customs, and
b
as a result of that, it appears to an officer of Revenue and Customs that any accounting period specified in the notice is not the true accounting period.
8
An officer of Revenue and Customs must by notice amend the notice under subsection (6) so as to specify what appears to the officer to be the true accounting period.
9
A notice under subsection (6) or (8) must be given to each company which the officer of Revenue and Customs considers would be likely to be a chargeable company were the CFC charge to be charged in relation to the CFC’s accounting period in question.
Accounting profits
371VC
1
This section and section 371VD (with which this section needs to be read) apply for the purposes of this Part.
2
A CFC’s accounting profits for an accounting period are its pre-tax profits for the period.
3
If financial statements for the CFC are prepared for the accounting period in accordance with an acceptable accounting practice, the CFC’s pre-tax profits are to be determined by reference to the amounts disclosed in those statements (subject to subsections (4) and (5) ).
4
Subsection (5) applies if —
a
the CFC’s financial statements for the accounting period (or any aspect of them) are not prepared in accordance with an acceptable accounting practice, or
b
no financial statements are prepared at all for the CFC for the accounting period within 12 months after the end of that period.
5
The CFC’s pre-tax profits are to be determined by reference to the amounts which would have been disclosed had financial statements for the accounting period been prepared for the CFC in accordance with —
a
the acceptable accounting practice in accordance with which financial statements for the CFC are normally prepared, or
b
if paragraph (a) cannot be applied, international accounting standards.
6
Each of the following is an “acceptable accounting practice” —
a
international accounting standards,
b
UK generally accepted accounting practice, and
c
accounting practice which is generally accepted in the territory in which the CFC is resident for the accounting period.
7
In this section references to amounts disclosed in financial statements include amounts comprised in amounts so disclosed.
8
If the CFC’s accounting profits (or any amounts included in them) are determined in a currency other than sterling, they are to be translated into their sterling equivalent using the average rate of exchange for the accounting period calculated from daily spot rates.
Adjustments to accounting profits
371VD
1
This section applies for the purpose of determining a CFC’s accounting profits for an accounting period.
2
The following are to be ignored in determining the profits —
a
any dividend or other distribution which is not brought into account in determining the CFC’s assumed total profits for the accounting period on the basis that it would be exempt for the purposes of Part 9A of CTA 2009 (company distributions),
b
any property business profits or property business losses, and
c
any capital profits or losses.
3
In subsection (2)(b) “property business losses” means any losses of a UK property business or overseas property business of the CFC; such losses are to be determined in a way corresponding to the way in which property business profits are determined.
4
The profits are to include —
a
any amount which accrues during the accounting period to the trustees of a settlement in relation to which the CFC is a settlor or beneficiary, and
b
the CFC’s share of any income which accrues during the accounting period to a partnership of which the CFC is a partner, as determined by apportioning that income between the partners on a just and reasonable basis.
5
If there is more than one settlor or beneficiary in relation to a settlement covered by subsection (4)(a) , the income is to be apportioned between the CFC and the other settlors or beneficiaries on a just and reasonable basis.
6
In subsection (4)(b) “partnership” includes an entity established under the law of a territory outside the United Kingdom of a similar character to a partnership; and “partner” is to be read accordingly.
7
Part 4 (transfer pricing) applies as it applies in relation to the determination of the CFC’s assumed taxable total profits for the accounting period.
8
But subsection (7) is to be ignored if the difference made in the amount of the profits as a result of its application would not be more than £50,000.
Cell companies etc
371VE
1
This Part applies in relation to unincorporated cells and incorporated cells as if they were non-UK resident companies.
2
An “unincorporated cell” is an identifiable part (by whatever name known) of a non-UK resident company which meets the following condition.
3
The condition is that, under the law under which the non-UK resident company is incorporated or formed, under the articles of association or other document regulating the non-UK resident company or under any arrangement entered into by or in relation to the non-UK resident company —
a
assets and liabilities of the non-UK resident company may be wholly or mainly allocated to the part of the company in question,
b
liabilities so allocated are to be met wholly or mainly out of assets so allocated, and
c
there are members of the non-UK resident company who have rights in relation to the company’s assets which cover only or mainly assets so allocated.
4
Subsection (1) does not affect the status of the non-UK resident company mentioned in subsection (2) as a company for the purposes of this Part; but its assets and liabilities are to be apportioned between it and the unincorporated cell (and any other unincorporated cells which are part of the company) on a just and reasonable basis.
5
An “incorporated cell” is an entity (by whatever name known) established under the articles of association or other document regulating a non-UK resident company —
a
which, under the law under which the non-UK resident company is incorporated or formed, has a legal personality distinct from that of the non-UK resident company, but
b
which is not itself a company (ignoring this section).
6
Subsection (1) does not affect the status of the non-UK resident company mentioned in subsection (5) as a company for the purposes of this Part.
7
The Treasury may by regulations provide for this Part to apply in relation to —
a
parts of companies falling within specified descriptions, or
b
other entities falling within specified descriptions which are not themselves companies (ignoring this section),
as if they were non-UK resident companies.
8
Regulations under subsection (7) may add to, repeal or otherwise amend subsections (1) to (6) .
Connected persons etc
371VF
1
This section applies for the purposes of this Part.
2
The following provisions of CTA 2010 apply —
a
section 882(2) to (7) (“associated” persons), and
b
section 1122 (“connected” persons).
3
A person is “related” to a CFC if —
a
the person is connected or associated with the CFC,
b
at least 25% of the CFC’s chargeable profits would be apportioned to the person at step 3 in section 371BC (1) were that step required to be taken in relation to the accounting period in question, or
c
if the CFC is a CFC by virtue of section 371RC , the person is connected or associated with either or both of the controllers.
Finance profits
371VG
1
In this Part “non-trading finance profits”, in relation to a CFC, means any amounts —
a
which are included in the CFC’s assumed total profits for the accounting period in question on the basis that they would be chargeable to corporation tax under —
i
section 299 of CTA 2009 (charge to tax on non-trading profits from loan relationships), or
ii
Part 9A of that Act (company distributions), or
b
which —
i
are included in the CFC’s assumed total profits for the accounting period in question on the basis that they arise from an arrangement which would be a relevant finance lease, but
ii
are not trading profits.
2
Subsection (1) is subject to subsection (3) and sections 371CB (2) and (8) , 371CE (2) and 371IA (9) .
3
Any credits or debits which are to be brought into account in determining the CFC’s property business profits for the accounting period in question in accordance with section 371VI (2) are not to be brought into account in determining the CFC’s non-trading finance profits.
4
In this Part “trading finance profits”, in relation to a CFC, means any amounts included in the CFC’s assumed total profits for the accounting period in question —
a
which are trading profits by virtue of section 297, 573 or 931W of CTA 2009, or
b
which are trading profits arising from an arrangement which would be a relevant finance lease.
5
Subsection (4) is subject to section 371CE (2) .
Interests in companies
371VH
1
This section applies for the purposes of this Part.
2
The following persons have an “interest” in a company —
a
any person who has, or is entitled to acquire, share capital or voting rights in the company,
b
any person who has, or is entitled to acquire, a right to receive or participate in distributions of the company,
c
any person who is entitled —
i
to direct how income or assets of the company are to be applied,
ii
to have such income or assets applied on the person’s behalf, or
iii
otherwise to secure that such income or assets will be applied (directly or indirectly) for the person’s benefit, and
d
any other person who, either alone or together with other persons, has control of the company.
3
In subsection (2) references to a person being entitled to do anything cover cases in which —
a
a person is presently entitled to do it at a future date, or
b
a person will at a future date be entitled to do it.
4
In subsection (2)(c) references to a person being entitled to do anything also cover cases in which it is reasonable to suppose that a person is presently able, or will at a future date become able, to do the thing (even though the person presently has, or will have, no entitlement to do the thing).
5
Subsection (6) applies if a person’s entitlement (or supposed ability) to do anything mentioned in subsection (2)(c) is (or would be) contingent upon a default of the company or any other person under any agreement.
6
The person is not to have an interest in the company under subsection (2)(c) by virtue of that entitlement (or supposed ability) unless the default has occurred.
7
Rights which a person has as a loan creditor of a company are to be ignored for the purposes of subsection (2) .
8
In subsection (7) —
“loan creditor” has the meaning given by section 453 of CTA 2010, but ignoring subsection (4) of that section, and
“rights” does not include any rights excluded from subsection (7) by subsection (10) .
9
Subsection (10) applies if, in accordance with generally accepted accounting practice, a loan creditor divides its rights and liabilities under a loan relationship to which it is a party as mentioned in section 415(1) of CTA 2009 (loan relationships with embedded derivatives).
For this purpose, if a loan creditor does not prepare its accounts in accordance with generally accepted accounting practice, assume that it prepares IAS accounts (within the meaning of section 1127 of CTA 2010).
10
Any rights falling within section 415(1)(b) of CTA 2009 are to be excluded from subsection (7) .
11
Subsections (12) and (13) apply if —
a
apart from subsection (12) , a person has, or two or more persons together have, an interest in a company (“company 1”), and
b
company 1 has an interest in another company (“company 2”).
(In paragraph (b) “interest” includes an interest by virtue of subsection (12) .)
12
The person or persons mentioned in subsection (11)(a) are to be taken to have an interest in company 2 (and references to a person’s interest in a company are to be read accordingly).
13
For the purposes of references to one person’s interest in a company being the same as another person’s interest —
a
the person mentioned in subsection (11)(a) , or
b
each of the persons so mentioned,
is to be taken as having, to the extent of that person’s interest in company 1, the same interest as company 1 has in company 2.
14
If two or more persons jointly have an interest in a company otherwise than in a fiduciary or representative capacity, they are taken to have the interest in equal shares.
Property business profits
371VI
1
Subject to what follows, in this Part “property business profits”, in relation to a CFC, means any profits included in the CFC’s assumed total profits for the accounting period in question on the basis that they would be chargeable to corporation tax under Part 4 of CTA 2009 (property income).
2
Any credits or debits —
a
which are brought into account under Part 5 of CTA 2009 in determining the CFC’s assumed total profits for the accounting period, and
b
which fall within subsection (3) or (5) ,
are to be brought into account in determining the CFC’s property business profits.
3
Credits and debits fall within this subsection so far as they are from a debtor relationship of the CFC where the loan which is the subject of the debtor relationship —
a
is made and used solely for the purposes of a relevant property business, and
b
is not used to any extent for the purpose of funding (directly or indirectly) —
i
a loan to any other person, or
ii
so far as not covered by sub-paragraph (i), an arrangement intended to produce for any person a return in relation to any amount which it is reasonable to suppose would be a return by reference to the time value of that amount of money.
4
In subsection (3) “debtor relationship” has the meaning given by section 302(6) of CTA 2009 (and does not include anything which, although not falling within section 302(1) of that Act, is treated for any purpose as if it were a debtor relationship); and “loan” is to be read accordingly.
5
Credits and debits fall within this subsection so far as they —
a
are from any derivative contract or other arrangement entered into by the CFC as a hedge of risk in connection with a relevant property business, and
b
are attributable to that hedge of risk.
6
“Relevant property business” means a UK property business or overseas property business of the CFC, profits of which are included in the CFC’s property business profits apart from subsection (2) .
Regulations
371VJ
Regulations under this Part may contain incidental, supplemental, consequential and transitional provision and savings.
PART 2
Foreign permanent establishments
Main provision
2
Chapter 3A of Part 2 of CTA 2009 (foreign permanent establishments of UK resident companies) is amended as follows.
3
In section 18A(1) omit “UK resident”.
4
After section 18C insert —
Income arising from immovable property
18CA
The references in section 18A(6) to profits which would be taken to be attributable to the permanent establishment of a company in a territory include any income arising from immovable property which has been used for the purposes of the business carried on by the company through the permanent establishment in the territory (to such extent as is appropriate having regard to the extent to which it has been so used); and the references to losses in section 18A(7) are to be construed accordingly.
Profits and losses from investment business
18CB
1
In determining any relevant profits amount or relevant losses amount under section 18A(6) or (7) in relation to a company, there are to be left out of account any profits or losses of any part of the company’s business which consists of the making of investments.
2
Subsection (1) does not apply to profits or losses arising from assets so far as the assets are effectively connected with any part of the permanent establishment through which a trade or overseas property business of the company is carried on in the territory.
3
In subsection (2) “effectively connected” is to be given the same meaning as it would be given for the purposes of the OECD model were subsection (2) contained in the OECD model.
5
1
Section 18F is amended as follows.
2
In subsection (1)(a) for “subsection (6)” substitute “subsections (6) to (8)”.
3
For subsection (2) substitute —
2
The relevant day”, in relation to an election made by a UK resident company, means —
a
the day on which, at the time of the election, the company’s accounting period following that in which the election is made is expected to begin, or
b
if the election is made before the company’s first accounting period, the day on which that accounting period begins.
2A
“The relevant day”, in relation to an election made by a non-UK resident company, means the day on which the company becomes UK resident.
4
In subsection (6) for “The election can be revoked” substitute “An election can be revoked by the company which made it”.
5
After subsection (6) insert —
7
An election made by a UK resident company is revoked if the company ceases to be UK resident.
8
An election made by a non-UK resident company is revoked if, having become UK resident, the company ceases to be UK resident.
6
For sections 18G to 18I substitute —
Anti-diversion rule
18G
1
This section applies for the purposes of this Chapter for any relevant accounting period (“period X”) of a company (“company X”) in relation to a territory outside the United Kingdom (“territory X”) if —
a
there is an adjusted relevant profits amount in relation to territory X for period X,
b
the adjusted relevant profits amount includes diverted profits (see section 18H ), and
c
none of the exemptions mentioned in section 18I applies for period X.
2
The diverted profits are to be left out of the adjusted relevant profits amount.
3
For the purposes of this Chapter “adjusted”, in relation to a relevant profits amount, is what the relevant profits amount would be if it were determined without reference to gains or losses which are chargeable gains or allowable losses for corporation tax purposes.
What are “diverted profits”?
18H
1
In section 18G (1)(b) “diverted profits” means so much of company X’s total profits of period X as pass through the diverted profits gateway.
2
To determine the extent to which company X’s total profits of period X pass through the diverted profits gateway, apply —
a
section 371BB of TIOPA 2010 (controlled foreign companies: the CFC charge gateway), and
b
except Chapter 8 of Part 9A of that Act, the other provisions referred to in that section,
as if references to the CFC charge gateway were references to the diverted profits gateway.
3
In applying section 371BB of TIOPA 2010 and the other provisions referred to in it assume —
a
that company X is a CFC resident in territory X,
b
that period X is the CFC’s accounting period, and
c
that company X’s total profits of period X are the CFC’s assumed total profits for the accounting period.
4
Subsection (3)(a) does not require it to be assumed that there is any change in the place or places at which company X carries on its activities.
5
Section 371BB of TIOPA 2010 and the other provisions referred to in it are also to be applied subject to sections 18HA to 18HE below.
6
In this section —
a
references to company X’s total profits of period X are to those profits ignoring this Chapter and step 2 in section 4(3) of CTA 2010, and
b
references to section 371BB of TIOPA 2010 are to that section omitting subsection (2)(b) .
Modification of Chapter 3 of Part 9A of TIOPA 2010
18HA
Chapter 3 of Part 9A of TIOPA 2010 (the CFC charge gateway: determining which of Chapters 4 to 8 applies) applies for the purposes of section 18H (2) with the omission of —
a
section 371CA (10)(a) ,
b
in section 371CB (2) , the words “or Chapter 8 (solo consolidation)”,
c
section 371CC (1)(b) , (3)(b) and (c) , (4) to (7) , (9) and (10) ,
d
section 371CD ,
e
section 371CE (2) to (9) , and
f
section 371CG .
Modification of Chapter 4 of Part 9A of TIOPA 2010
18HB
1
Chapter 4 of Part 9A of TIOPA 2010 (the CFC charge gateway: profits attributable to UK activities) applies for the purposes of section 18H (2) with the following modifications.
2
The modifications are —
a
section 371DA (3)(g)(i) is to be omitted, and
b
in section 371DH (4) , after “the accounting period”, in the second place it occurs, there is to be inserted “or the United Kingdom”.
3
Section 371VF (3) of TIOPA 2010 (definition of “related” person) is to be applied as relevant with the omission of paragraphs (b) and (c) .
Modification of Chapter 5 of Part 9A of TIOPA 2010
18HC
Chapter 5 of Part 9A of TIOPA 2010 (the CFC charge gateway: non-trading finance profits) applies for the purposes of section 18H (2) with the omission of —
a
in section 371EA (1) , the words from “so far as” to the end, and
b
sections 371EB to 371EE .
Modification of Chapter 7 of Part 9A of TIOPA 2010
18HD
Chapter 7 of Part 9A of TIOPA 2010 (the CFC charge gateway: captive insurance business) applies for the purposes of section 18H (2) with the omission of section 371GA (6)(b) .
Modification of Chapter 9 of Part 9A of TIOPA 2010
18HE
1
Chapter 9 of Part 9A of TIOPA 2010 (exemptions for profits from qualifying loan relationships) applies for the purposes of section 18H (2) with the following modifications.
2
In section 371IA (2) and (11) the reference to a chargeable company is to be read as a reference to company X (as is the reference in section 371CB (8) ); and references elsewhere in Chapter 9 to company C are to be read as references to company X.
3
For section 371IA (5) there is to be substituted —
5
75% of the profits of each qualifying loan relationship are “exempt” under this Chapter.
4
In section 371IA (9)(a) the words “or Chapter 8 (solo consolidation)” are to be omitted.
5
Sections 371IB to 371IE are to be omitted.
6
Section 371IH (11)(a) is to be read ignoring the modification in section 18HC (b) above.
7
In section 371IJ references to the relevant corporation tax accounting period are to be read as references to period X and subsection (6) is to be omitted.
Exemptions from anti-diversion rule
18I
1
The exemptions referred to in section 18G (1)(c) are the exemptions set out in Chapters 11 to 14 of Part 9A of TIOPA 2010 (controlled foreign companies: exemptions from the CFC charge).
2
In applying those Chapters for the purposes of section 18G (1)(c) —
a
references to section 371BA (2)(b) of TIOPA 2010 are to be read as references to section 18G (1)(c) ,
b
the assumptions set out in subsection (3) are to be made, and
c
section 371VF (3) of TIOPA 2010 (definition of “related” person) is to be read with the omission of paragraphs (b) and (c) .
3
For the purposes of subsection (2)(b) , assume —
a
that the permanent establishment which company X has in territory X is a separate company from company X,
b
that the separate company is a CFC resident in territory X,
c
that period X and company X’s other accounting periods for corporation tax purposes are accounting periods of the CFC for the purposes of Part 9A of TIOPA 2010,
d
that the CFC’s assumed total profits for period X are the adjusted relevant profits amount,
e
that the CFC’s assumed taxable total profits for period X are the same as the CFC’s assumed total profits for period X,
f
that the CFC is connected with company X and is also connected or associated with any person with whom company X is connected or associated, and
g
that any person who has an interest in company X also has an interest in the CFC.
4
Chapters 11 to 14 of Part 9A of TIOPA 2010 are also to be applied subject to sections 18IA to 18ID below.
The excluded territories exemption
18IA
1
Chapter 11 of Part 9A of TIOPA 2010 (controlled foreign companies: the excluded territories exemption) applies for the purposes of section 18G (1)(c) with the following modifications.
2
Sections 371KB (1)(b)(iii) and 371KH are to be omitted.
3
Section 371KC is to be omitted and the assumption set out in section 18I (3)(b) above in relation to the CFC’s residence is to be applied instead; and references to “the CFC’s territory” are to be read accordingly.
4
Section 371KD (3) is to be omitted and references to a CFC’s accounting profits for an accounting period are to be read as references to the adjusted relevant profits amount.
5
Section 371KE (2)(b) is to be omitted.
6
Section 371KF is to be omitted.
7
In section 371KG (3) the reference to the CFC’s equity or debt is to be read as a reference to company X’s equity or debt (ignoring the assumption in section 18I (3)(a) above).
8
Section 371KI (2) and (3) is to be omitted.
9
In section 371KJ —
a
in subsection (2)(a) , the reference to intellectual property held by the CFC is to be read as a reference to intellectual property held by company X (ignoring the assumption in section 18I (3)(a) above), and
b
in subsections (2)(b) and (c) and (4) , references to the CFC are to be read as references to company X (ignoring that assumption).
The low profits exemption
18IB
Chapter 12 of Part 9A of TIOPA 2010 (controlled foreign companies: the low profits exemption) applies for the purposes of section 18G (1)(c) with the omission of section 371LB (2) and (4) and section 371LC (5) and (6) .
The low profit margin exemption
18IC
1
Chapter 13 of Part 9A of TIOPA 2010 (controlled foreign companies: the low profit margin exemption) applies for the purposes of section 18G (1)(c) with the following modifications.
2
In section 371MB —
a
subsection (2) is to be omitted, and
b
references to the CFC’s accounting profits for an accounting period are to be read as references to the adjusted relevant profits amount determined before any deduction for interest.
The tax exemption
18ID
1
Chapter 14 of Part 9A of TIOPA 2010 (controlled foreign companies: the tax exemption) applies for the purposes of section 18G (1)(c) with the following modifications.
2
At step 1 in section 371NB (1) —
a
in the first paragraph, the reference to section 371TB of TIOPA 2010 is to be read as a reference to the assumption in section 18I (3)(b) above relating to the CFC’s residence, and
b
the second paragraph is to be omitted.
3
References to the CFC’s local chargeable profits arising in the accounting period are to be read as references to the adjusted relevant profits amount and, accordingly, sections 371NB (4) and 371NC (2) to (4) are to be omitted.
4
For the purposes of step 3 in section 371NB (1) the amount of the corresponding UK tax for the accounting period is to be determined in accordance with subsection (5) below; and section 371NE is to be omitted accordingly.
5
“The corresponding UK tax” is the amount of corporation tax which would be payable in respect of the adjusted relevant profits amount if it were subject in full to corporation tax, ignoring any credit which would be allowed against it under section 18(3) of TIOPA 2010 and assuming, where there is more than one rate of corporation tax applicable to period X, that it were chargeable at the average rate over period X.
7
After section 18P(2) insert —
3
Subsection (2) does not apply in relation to —
a
a chargeable gain accruing on the disposal of an asset used, and used only, for the purposes of a trade so far as carried on by the company in the relevant foreign territory through the company’s permanent establishment there, or
b
a chargeable gain accruing on the disposal of currency or of a debt within section 252(1) of TCGA 1992 where the currency or debt is or represents money in use for the purposes of a trade so far as carried on by the company in the relevant foreign territory through the company’s permanent establishment there.
Lloyd’s underwriters
8
In Chapter 5 of Part 4 of FA 1994 (Lloyd’s underwriters) after section 227B insert —
Exemption for profits or losses of foreign permanent establishments
227C
1
This section applies for the purposes of section 18A(6) and (7) of the Corporation Tax Act 2009 (exemption for profits or losses of foreign permanent establishments: “relevant profits amount” and “relevant losses amount”).
2
Any regulations made under section 229(1)(d) below are to be ignored.
3
Profits or losses which are taken to arise to a corporate member in an underwriting year from its membership of one or more syndicates are to be left out of account in relation to any relevant accounting period so far as they are profits or losses of a previous underwriting year which began before the relevant day (as defined in section 18F of the 2009 Act (effect of election under section 18A)).
4
Profits or losses arising to a corporate member from assets forming part of a premium trust fund which are taken to be profits or losses of an underwriting year are to be left out of account in relation to any relevant accounting period so far as they are allocated under the rules or practice of Lloyds to a previous underwriting year which began before the relevant day (as defined in section 18F of the 2009 Act).
Plant and machinery allowances
9
In section 15 of CAA 2001 (plant and machinery allowances: qualifying activities) after subsection (2A) insert —
2B
Subsection (2A) does not apply to the business so far as it consists of a plant or machinery lease under which the company is a lessor if any profits or losses arising from the lease are to be left out of account as mentioned in section 18C(3) of CTA 2009.
PART 3
Other amendments
TMA 1970
10
TMA 1970 is amended as follows.
11
In section 55 (recovery of tax not postponed) in subsection (1) omit paragraph (d).
12
In section 59E (provision about when corporation tax due and payable) in subsection (11) for paragraph (b) substitute —
b
to any sum charged on a company at step 5 in section 371BC (1) of TIOPA 2010 (controlled foreign companies) as if it were an amount of corporation tax;
.
13
In section 59F (arrangements for paying tax on behalf of group members) in subsection (6) for paragraph (b) and the “and” after it substitute —
b
a sum charged on a company at step 5 in section 371BC (1) of TIOPA 2010 (controlled foreign companies) as if it were an amount of corporation tax, and
.
ICTA
14
In ICTA omit Chapter 4 of Part 17 (controlled foreign companies).
FA 1998
15
FA 1998 is amended as follows.
16
In section 32 (unrelieved surplus advance corporation tax) for subsection (5) substitute —
5
The provision which may be made by regulations under this section includes provision for or in connection with enabling unrelieved surplus advance corporation tax to be set against liability to a sum charged at step 5 in section 371BC (1) of the Taxation (International and Other Provisions) Act 2010 (controlled foreign companies) as if it were an amount of corporation tax for an accounting period.
17
1
Schedule 18 (company tax returns) is amended as follows.
2
In paragraph 1 for “section 747(4)(a) of the Taxes Act 1988 (tax on profits of controlled foreign company)” substitute “step 5 in section 371BC (1) of the Taxation (International and Other Provisions) Act 2010 (controlled foreign companies)”.
3
In paragraph 8(1), in the third step, for paragraph 2 substitute —
Any sum charged at step 5 in section 371BC (1) of the Taxation (International and Other Provisions) Act 2010 (controlled foreign companies).
FA 2000
18
Schedule 22 to FA 2000 (tonnage tax) is amended as follows.
19
1
Paragraph 54 is amended as follows.
2
In sub-paragraph (1) —
a
for “under section 747 of the Taxes Act 1988” substitute “at step 5 in section 371BC (1) of the Taxation (International and Other Provisions) Act 2010 (“TIOPA 2010”)”,
b
for “controlled foreign company” (in both places) substitute “CFC”, and
c
at the end insert “; and, accordingly, the tonnage tax company is not to be a chargeable company for the purposes of Part 9A of TIOPA 2010 in relation to the CFC’s accounting period in question.”
3
For sub-paragraphs (2) to (5) substitute —
2
In relation to a CFC which —
a
is a member of a tonnage tax group, and
b
is a tonnage tax company by virtue of the group’s tonnage tax election, or would be if it were within the charge to corporation tax,
the corporation tax assumptions within the meaning of Part 9A of TIOPA 2010 are to be taken to include the following assumption.
3
The CFC is to be assumed to be a single company that is a tonnage tax company.
4
Nothing in section 371SL (1) of TIOPA 2010 affects sub-paragraphs (2) and (3) above.
5
In this paragraph “CFC” has the same meaning as in Part 9A of TIOPA 2010.
20
1
Paragraph 57 is amended as follows.
2
In sub-paragraph (1)(b) for the words from “controlled” to the end substitute “CFC apportioned to the company at step 3 in section 371BC (1) of the Taxation (International and Other Provisions) Act 2010.”
3
For sub-paragraph (4) substitute —
4
For the purposes of sub-paragraph (1)(b) —
a
“tonnage profits” means so much of the CFC’s chargeable profits for its accounting period in question as, applying the corporation tax assumptions, are calculated in accordance with paragraph 4 of this Schedule; and
b
so much of those chargeable profits as are tonnage profits shall be treated as apportioned at step 3 in section 371BC (1) of the Taxation (International and Other Provisions) Act 2010 in the same proportions as those profits (taken generally) are apportioned.
4A
In sub-paragraphs (1)(b) and (4) terms defined in Part 9A of the Taxation (International and Other Provisions) Act 2010 have the same meaning as in that Part.
FA 2002
21
In FA 2002 omit section 90 (controlled foreign companies and treaty non-resident companies).
ITA 2007
22
1
Section 725 of ITA 2007 (transfer of assets abroad: reduction in amount charged where controlled foreign company involved) is amended as follows.
2
For subsection (1) substitute —
1
This section applies if —
a
under Part 9A of TIOPA 2010 (controlled foreign companies), the CFC charge is charged in relation to a CFC’s accounting period, and
b
apart from this section, the amount of income treated as arising to an individual under section 721 for a tax year would be or include a sum forming part of the CFC’s chargeable profits for that accounting period.
3
In subsection (2) —
a
for “controlled foreign company’s” (in both places) substitute “CFC’s”, and
b
in the definition of “CA” for “chargeable amount” substitute “CFC’s chargeable profits for that accounting period so far as apportioned to chargeable companies at step 3 in section 371BC (1) of TIOPA 2010”.
4
For subsection (3) substitute —
3
Terms used in this section which are defined in Part 9A of TIOPA 2010 have the same meaning as in that Part.
FA 2007
23
1
Paragraph 3 of Schedule 11 to FA 2007 (technical provision made by insurers) is amended as follows.
2
In sub-paragraph (1) for paragraph (b) and the “or” after it substitute —
b
a CFC (within the meaning of Part 9A of the Taxation (International and Other Provisions) Act 2010) which carries on general business, or
.
3
In sub-paragraph (2) for paragraph (b) substitute —
b
a company which for the purposes of Part 9A of the Taxation (International and Other Provisions) Act 2010 has an interest in a CFC (within the meaning of that Part) which carries on general business.
CTA 2009
24
CTA 2009 is amended as follows.
25
In section A1 (overview of the Corporation Tax Acts) in subsection (2) —
a
omit paragraph (b), and
b
before paragraph (k) (as inserted by paragraph 136 of Schedule 16 to this Act) insert —
ja
Part 9A of that Act (controlled foreign companies),
.
26
In section 486D (disguised interest: arrangement with no tax avoidance purpose) omit subsections (5) and (6).
27
1
Section 486E (disguised interest: excluded shares) is amended as follows.
2
In subsection (7)(c) for “relevant controlled foreign company” substitute “CFC within the meaning of Part 9A of TIOPA 2010”.
3
For subsections (9) and (10) substitute —
9
For the purposes of subsection (7)(b) a company (“C”) is a relevant joint venture company if —
a
the holding company is one of two persons who, taken together, control C,
b
the holding company has interests, rights and powers representing at least 40% of the holdings, rights and powers in respect of which the holding company and the second person fall to be taken as controlling C, and
c
the second person has interests, rights and powers representing —
i
at least 40%, but
ii
no more than 55%,
of the holdings, rights and powers in respect of which the holding company and the second person fall to be taken as controlling C.
10
For the purposes of subsection (9) —
a
section 371RB of TIOPA 2010 (read with section 371RD of that Act) applies for the purpose of determining if two persons, taken together, control a company, and
b
section 371RD of that Act applies for the purpose of determining if the requirements of paragraphs (b) and (c) are met in any case.
4
Omit subsection (11).
28
In section 521E (unallowable purpose) omit subsections (5) and (6).
29
Omit section 870 (intangible fixed assets: assumptions to be made in the case of a controlled foreign company) and the cross-heading before it.
30
In Chapter 2 of Part 9A (exemption of distributions received by small companies) after section 931C insert —
Further exemption where distribution received from CFC
931CA
1
Subsection (2) applies if —
a
under Part 9A of TIOPA 2010 (controlled foreign companies), the CFC charge is charged in relation to a CFC’s accounting period,
b
a dividend or other distribution of the CFC is received in an accounting period (for corporation tax purposes) of the recipient in which the recipient is a small company,
c
the whole or a part of the distribution is paid in respect of profits which are chargeable profits of the CFC for its accounting period mentioned in paragraph (a), and
d
the requirements of section 931B(b) to (d) are met in relation to the distribution.
2
The distribution is exempt.
3
If part of the distribution is not paid in respect of chargeable profits —
a
for the purposes of this Part and Part 2 of TIOPA 2010 that part of the distribution is treated as a separate distribution, and
b
subsection (2) does not apply to that separate distribution.
4
In this section references to chargeable profits of the CFC are limited to chargeable profits so far as apportioned to chargeable companies at step 3 in section 371BC (1) of TIOPA 2010.
31
In section 931E (distributions from controlled companies) for subsections (3) to (5) substitute —
3
Condition B is that —
a
the recipient is one of two persons who, taken together, control the payer,
b
the recipient has interests, rights and powers representing at least 40% of the holdings, rights and powers in respect of which the recipient and the second person fall to be taken as controlling the payer, and
c
the second person has interests, rights and powers representing —
i
at least 40%, but
ii
no more than 55%,
of the holdings, rights and powers in respect of which the recipient and the second person fall to be taken as controlling the payer.
4
Section 371RB of TIOPA 2010 (read with section 371RD of that Act) applies for the purposes of this section.
5
Section 371RD of TIOPA 2010 applies for the purpose of determining if the requirements of subsection (3)(b) and (c) are met in any case.
6
In subsections (4) and (5) references to section 371RD of TIOPA 2010 are to that section omitting subsection (3)(c) and (d) .
FA 2009
32
Part 2 of Schedule 16 to FA 2009 (amendment of exempt activities exemption) is amended as follows.
33
In paragraph 12 —
a
in sub-paragraph (2) omit paragraph (b) and the “and” before it, and
b
after sub-paragraph (2) insert —
3
The amendments made by this Part have no effect in relation to a qualifying holding company.
34
Omit paragraph 15.
35
In paragraph 16 —
a
in paragraph (a) after “2009” insert “but before 1 January 2013”, and
b
omit paragraph (b) and the “and” before it.
36
In the cross-heading before paragraph 17 for “ during three years before 1 July 2012 ” substitute “ from 1 July 2009 ”.
CTA 2010
37
CTA 2010 is amended as follows.
38
In section 398D (restriction on use of losses) for subsection (6) substitute —
6
Subsection (6A) applies if A is a CFC within the meaning of Part 9A of TIOPA 2010 and the CFC charge is charged in relation to the accounting period ending with the relevant day.
6A
No sum may be set off under section 371UD of TIOPA 2010 against the sum charged on a chargeable company so far as the sum charged is attributable to the CFC’s chargeable profits so far as, in turn, attributable to the carrying on of the relevant activity.
39
1
Section 938M (group mismatch schemes: controlled foreign companies) is amended as follows.
2
In subsection (1) for the words from the beginning to “company” substitute “Section 371SL(1) of TIOPA 2010 (assumption that a CFC”.
3
In subsection (2) —
a
for “chargeable profits” substitute “assumed taxable total profits”, and
b
for “Chapter 4 of Part 17 of ICTA” substitute “Part 9A of TIOPA 2010”.
40
In section 1139 (definition of “tax advantage”) in subsection (2) —
a
omit the “or” after paragraph (d), and
b
after paragraph (d) insert —
da
the avoidance or reduction of a charge or assessment to a charge under Part 9A of TIOPA 2010 (controlled foreign companies), or
.
TIOPA 2010
41
TIOPA 2010 is amended as follows.
42
1
Section 179 (compensating payment if advantaged person is controlled foreign company) is amended as follows.
2
For subsection (1) substitute —
1
Subsection (2) applies if —
a
the actual provision is provision made or imposed in relation to a CFC,
b
for the purpose of determining the CFC’s assumed taxable total profits for an accounting period, the CFC’s profits and losses are to be calculated in accordance with section 147(3) or (5) in the case of that provision,
c
in relation to the accounting period, sums are charged on chargeable companies at step 5 in section 371BC (1) , and
d
in consequence of the application of section 147(3) or (5) as mentioned in paragraph (b), the total of those sums is more than it would otherwise be.
3
In subsection (2) for “controlled foreign company” substitute “CFC”.
4
In subsection (3) —
a
in paragraph (a) for “companies mentioned in subsection (1)(c)” substitute “chargeable companies on which a sum is charged”, and
b
in paragraph (b) for “tax chargeable under section 747(4) of ICTA” substitute “the CFC charge”.
5
For subsection (4) substitute —
4
In this section terms which are defined in Part 9A have the same meaning as they have in that Part.
5
For the purposes of subsections (1)(c) and (d) and (3)(a) assume that any claims made under Chapter 9 of Part 9A for the accounting period were not made.
43
In Chapter 4 of Part 7 (exemption for financing income) after section 298 insert —
Application of Chapter to financing income amounts determined under section 314A
298A
1
The Commissioners may by regulations amend this Chapter —
a
to enable a financing income amount determined in accordance with section 314A for the relevant period of account (or a proportion of such an amount so determined) to be specified in a statement of allocated exemptions under section 292(4)(b), and
b
to require, where a financing income amount so determined (or a proportion of such an amount so determined) is specified in such a statement, the sum charged on the company as mentioned in section 314A (1)(a) to be re-determined at step 5 in section 371BC (1) on the basis set out in subsection (2) below.
2
The basis referred to in subsection (1)(b) is —
a
the relevant finance profits (see section 314A (1)(d) ) are to be left out of the CFC’s chargeable profits mentioned in paragraph (a) at step 5 in section 371BC (1) , and
b
the CFC’s creditable tax mentioned in paragraph (b) at that step is to be reduced so far as it is just and reasonable for it to be reduced having regard to the amounts left out of the CFC’s chargeable profits.
3
For a case where only a proportion (“X%”) of a financing income amount is specified in a statement of allocated exemptions under section 292(4)(b), in subsection (2)(a) the reference to the relevant finance profits is to be read as a reference to X% of those profits.
4
The Commissioners may by regulations amend this Chapter to require, where a financing income amount determined in accordance with section 314A for the relevant period of account is reduced under section 296, the sum charged on the company as mentioned in section 314A (1)(a) to be re-determined in accordance with provision made by regulations under subsection (1)(b) as if the proportion of the financing income amount represented by the amount of the reduction were specified in a statement of allocated exemptions under section 292(4)(b).
5
The Commissioners may by regulations amend this Part or Part 9A in consequence of provision made by regulations under subsection (1) or (4) .
44
1
Section 314 (financing income amounts) is amended as follows.
2
In subsection (1) after “D” insert “or that is determined in accordance with section 314A”.
45
After section 314 insert —
The financing income amounts of a chargeable company under Part 9A
314A
1
This section applies if —
a
a sum is charged on a company at step 5 in section 371BC (1) (controlled foreign companies: charging the CFC charge),
b
the relevant corporation tax accounting period (as defined in section 371BC (3) ) is a relevant accounting period of the company in relation to a period of account of the worldwide group,
c
the CFC’s accounting period in relation to which the sum is charged ends in the period of account of the worldwide group, and
d
the CFC’s chargeable profits mentioned in paragraph (a) at step 5 in section 371BC (1) include amounts (“the relevant finance profits”) which fall only within Chapter 5 or 6 of Part 9A or which are qualifying loan relationship profits within the meaning of Chapter 9 of Part 9A.
2
An amount equal to P% of the relevant finance profits is to be taken to be a financing income amount of the company for the period of account of the worldwide group.
3
“P%” has the meaning given by section 371BC (3) , subject to sections 371BG (3)(a) and 371BH (3)(b) .
4
In subsection (1)(d) the reference to amounts which fall within Chapter 5 or 6 of Part 9A or which are qualifying loan relationship profits is limited to amounts —
a
which so fall or which are such profits by virtue of section 297 or 299 of CTA 2009 (but not, in the case of section 299, as applied by section 574 of that Act), and
b
which are not excluded credits (as defined in section 314(3) above).
Insurance Companies (Reserve) (Tax) Regulations 1996 ( S.I. 1996/2991 )
46
The Insurance Companies (Reserve) (Tax) Regulations 1996 ( S.I. 1996/2991 ) are amended as follows.
47
1
Regulation 8A is amended as follows.
2
In paragraph (1) —
a
in sub-paragraph (a) for “controlled foreign company” substitute “CFC (within the meaning of Part 9A of the Taxation (International and Other Provisions) Act 2010)”, and
b
in sub-paragraph (b) for “controlled foreign company” substitute “CFC”.
3
In paragraph (4) —
a
for “controlled foreign company’s” substitute “CFC’s”, and
b
for “the company” substitute “the CFC”.
48
In regulation 8B for “controlled foreign company” substitute “CFC (within the meaning of Part 9A of the Taxation (International and Other Provisions) Act 2010)”.
PART 4
Commencement provision
Commencement provision relating to controlled foreign companies etc
49
1
The CFC charge is charged in relation to accounting periods of CFCs beginning on or after 1 January 2013.
2
The first accounting period of a company which is a CFC at the beginning of 1 January 2013 begins at that time.
3
Sub-paragraph (2) is subject to paragraph 50 below.
4
This paragraph is to be read as if contained in Part 9A of TIOPA 2010.
50
1
The repeal of Chapter 4 of Part 17 of ICTA by paragraph 14 above has no effect for accounting periods within the meaning of that Chapter (see section 751) beginning before 1 January 2013.
2
Sub-paragraphs (3) and (4) apply to a company which —
a
has an accounting period within the meaning of Chapter 4 of Part 17 of ICTA beginning before 1 January 2013 but ending on or after that date, and
b
is not, at the end of 31 December 2012, a life assurance subsidiary.
3
The company is not to have an accounting period within the meaning of Part 9A of TIOPA 2010 before its accounting period mentioned in sub-paragraph (2)(a) ends.
4
If the company is a CFC immediately after the end of its accounting period mentioned in sub-paragraph (2)(a) , its first accounting period within the meaning of Part 9A of TIOPA 2010 begins at that time.
5
Sub-paragraph (6) applies to a company which —
a
apart from sub-paragraph (6) , would have an accounting period within the meaning of Chapter 4 of Part 17 of ICTA beginning before 1 January 2013 but ending on or after that date, and
b
is, at the end of 31 December 2012, a life assurance subsidiary.
6
The company’s accounting period mentioned in sub-paragraph (5)(a) ends at the end of 31 December 2012 (and, accordingly, paragraph 49(2) above applies in relation to the company if it is a CFC at the beginning of 1 January 2013).
7
“Life assurance subsidiary” means a company in which a life assurance company has a relevant interest as determined in accordance with Chapter 15 of Part 9A of TIOPA 2010.
8
“Life assurance company” means a company carrying on life assurance business within the meaning of Part 2 of this Act (see section 56).
9
The amendments made by paragraphs 11 , 12 , 13 , 16 , 17 , 19 , 20 , 21 , 22 , 23 , 25 , 26 , 27(2) and (4) , 28 , 29 , 38 , 39 , 42 , 47 and 48 above are to be ignored so far as appropriate in consequence of the sub-paragraphs above.
51
The amendment made by paragraph 27(3) above has no effect for relevant periods beginning before 1 January 2013 (and the relevant provisions of Chapter 4 of Part 17 of ICTA continue to have effect accordingly notwithstanding the repeal of that Chapter by paragraph 14 above).
52
The amendment made by paragraph 30 above has no effect in relation to dividends or other distributions received before 1 January 2013.
53
The amendment made by paragraph 31 above has no effect in relation to dividends or other distributions received before 1 January 2013 (and the relevant provisions of Chapter 4 of Part 17 of ICTA continue to have effect accordingly notwithstanding the repeal of that Chapter by paragraph 14 above).
54
The amendments made by paragraphs 33 to 36 above are treated as having come into force on 30 June 2012.
Commencement provision relating to foreign permanent establishments
55
1
The amendments made by paragraphs 3 , 5 and 9 above come into force on 1 January 2013; but the amendment made by paragraph 5(3) above has no effect in relation to elections made before that date.
2
The amendments made by paragraphs 4 and 6 to 8 above have effect for relevant accounting periods beginning on or after 1 January 2013.
PART 5
Transitional provision
First accounting periods
56
1
This paragraph applies in relation to a CFC the first accounting period of which is determined in accordance with paragraph 49(2) or 50(4) above.
2
For the purposes of sections 371SD (6) , 371SK (3) and 371SM (3) of TIOPA 2010, assume that the CFC became a CFC at the time mentioned in paragraph 49(2) or 50(4) (as the case may be).
Elections under section 9A of CTA 2010
57
1
This paragraph applies if —
a
during a company’s accounting period within the meaning of Chapter 4 of Part 17 of ICTA a notice is given in relation to the company under paragraph 4(2C) of Schedule 24 to ICTA,
b
as a result of that, the company is to be assumed under paragraph 4(2C) of Schedule 24 to ICTA to have made an election under section 9A of CTA 2010,
c
the assumed election —
i
does not cease to have effect before the end of the company’s last accounting period within the meaning of Chapter 4 of Part 17 of ICTA to begin before 1 January 2013, and
ii
apart from the repeal of that Chapter by paragraph 14 above, would not have ceased to have effect at the end of that period, and
d
the company is a CFC immediately after the end of its last accounting period mentioned in paragraph (c) and its first accounting period within the meaning of Part 9A of TIOPA 2010 begins at that time accordingly.
2
In the application of Part 9A of TIOPA 2010 in relation to the company as a CFC, the assumption mentioned in sub-paragraph (1)(b) is to continue to be made as if it were required to be made by section 371SH (2) of TIOPA 2010.
Exempt periods
58
1
This paragraph applies if —
a
there is an exempt period in relation to a company under Part 3A of Schedule 25 to ICTA (cases in which section 747(3) of ICTA does not apply) which begins before 1 January 2013,
b
the exempt period —
i
does not end before the end of the company’s last accounting period within the meaning of Chapter 4 of Part 17 of ICTA to begin before 1 January 2013, and
ii
apart from the repeal of that Chapter by paragraph 14 above, would not have ended at the end of that period, and
c
the company is a CFC immediately after the end of its last accounting period mentioned in paragraph (b) and its first accounting period within the meaning of Part 9A of TIOPA 2010 begins at that time accordingly.
2
The remainder of the exempt period is to be treated as an exempt period of the company for the purposes of Chapter 10 of Part 9A of TIOPA 2010.
3
The remainder of the exempt period is to be determined in accordance with paragraph 15F of Schedule 25 to ICTA and, for this purpose, assume that Chapter 4 of Part 17 of ICTA continues to apply in relation to the company as if that Chapter had not been repealed by paragraph 14 above; and section 371JD of TIOPA 2010 is to be ignored accordingly.
4
Section 371JB of TIOPA 2010 applies in relation to the exempt period as if subsection (1)(b) and (c) were omitted.
5
Section 371JE of TIOPA 2010 applies in relation to the exempt period as if subsection (1)(b) were omitted.
6
Section 371JF of TIOPA 2010 does not affect the application of the exempt period exemption or section 371JE of TIOPA 2010 by virtue of this paragraph.
Designer rate tax provisions
59
1
The Controlled Foreign Companies (Designer Rate Tax Provisions) Regulations 2000 ( S.I. 2000/3158 ) are to have effect for the purposes of section 371ND of TIOPA 2010 as if they had been made by the HMRC Commissioners under that section.
2
The power of the HMRC Commissioners to make regulations under that section includes power to revoke or amend the 2000 Regulations for the purposes of that section.
SCHEDULE 21
Relief in respect of decommissioning expenditure
Section 183
Restriction of relief available in respect of decommissioning expenditure
1
Part 8 of CTA 2010 (oil activities) is amended as follows.
2
In section 330 (supplementary charge in respect of ring fence trades), at the end of subsection (2) insert —
See also sections 330A and 330B (which provide for the amount of adjusted ring fence profits to be further adjusted where decommissioning expenditure has been taken into account).
3
After section 330 insert —
Decommissioning expenditure taken into account in calculating ring fence profits
330A
1
This section applies where —
a
any decommissioning expenditure is taken into account in calculating the amount mentioned in paragraph (a) of subsection (3) of section 330 or the amount mentioned in paragraph (b) of that subsection, and
b
if that expenditure were not so taken into account, the amount of the adjusted ring fence profits of the company for the accounting period would be greater than nil.
2
In calculating for the purposes of section 330(1) the amount of the adjusted ring fence profits of the company for the accounting period, there is to be added an amount equal to the appropriate fraction of the used-up amount of that expenditure.
3
For the purposes of this section —
“the appropriate fraction” is
SC – 20 % SC
where SC is the percentage specified in section 330(1) for the accounting period, and
“the used-up amount”, in relation to any expenditure, is the difference between —
the adjusted ring fence profits of the company for the accounting period determined in the absence of this section (which may be nil), and
what the adjusted ring fence profits of the company for that accounting period would be if that expenditure were not taken into account as mentioned in subsection (1).
4
In determining for the purposes of this section whether, and to what extent, any losses which have been taken into account as mentioned in subsection (1) are attributable to decommissioning expenditure —
a
assume that any amounts of any other expenditure which could be taken into account in calculating those losses are taken into account before any amounts of decommissioning expenditure, and
b
where any losses have been surrendered in accordance with Part 5, the company must specify, in accordance with a basis determined jointly by the company, the surrendering company (if different) and any other claimant company, whether any of those losses is attributable to decommissioning expenditure.
5
But if paragraph (a) of subsection (4) would work unfavourably in the company’s case, the company may elect for that paragraph not to apply in relation to it and for any amounts of expenditure which could be taken into account in calculating those losses instead to be taken into account in the order specified in the election.
6
In determining for the purposes of this section the used-up amount of decommissioning expenditure, assume that any other amounts that could be deducted in calculating the adjusted ring fence profits of the company for the accounting period have already been so deducted.
7
But if subsection (6) would work unfavourably in the company’s case, the company may elect for that subsection not to apply in relation to it and for any amounts that could be deducted in calculating those adjusted ring fence profits instead to be deducted in the order specified in the election.
8
For the purposes of this section, any deduction made under section 330B is to be disregarded.
9
This section does not apply in relation to any accounting period for which the percentage specified in section 330(1) is less than or equal to 20% (including any accounting period beginning before 24 March 2011 and ending on or after that date).
10
In this section —
“claimant company” and “surrendering company” are to be read in accordance with Part 5 (see section 188), and
“decommissioning expenditure” has the meaning given by section 330C.
Decommissioning expenditure taken into account for PRT purposes
330B
1
This section applies where —
a
any decommissioning expenditure is taken into account in calculating the assessable profit accruing to a participator in any chargeable period from an oil field, and
b
if that expenditure were not so taken into account, the amount of petroleum revenue tax with which the participator would be chargeable in respect of the field for the chargeable period would be greater than nil.
2
In calculating for the purposes of section 330(1) the amount of the participator’s adjusted ring fence profits for the relevant accounting period, there is to be deducted an amount equal to the appropriate fraction of the PRT difference.
3
For the purposes of this section —
“the appropriate fraction” is
SC – 20 % SC
where SC is the percentage specified in section 330(1) for the relevant accounting period, and
“the PRT difference” is the difference between —
the amount of petroleum revenue tax with which the participator is chargeable for the chargeable period (which may be nil), and
the amount of petroleum revenue tax with which the participator would be chargeable for that chargeable period if the decommissioning expenditure were not taken into account as mentioned in subsection (1).
4
In determining for the purposes of this section whether, and to what extent, any allowable losses which have been taken into account as mentioned in subsection (1) are attributable to decommissioning expenditure, assume that any amounts of any other expenditure which could be taken into account in calculating those losses are taken into account before any amounts of decommissioning expenditure.
5
But if subsection (4) would work unfavourably in the participator’s case, the participator may elect for that subsection not to apply in relation to it and for any amounts of expenditure which could be taken into account in calculating those losses instead to be taken into account in the order specified in the election.
6
This section does not apply in relation to any accounting period for which the percentage specified in section 330(1) is less than or equal to 20% (including any accounting period beginning before 24 March 2011 and ending on or after that date).
7
In this section —
“assessable profit” and “allowable loss” have the same meaning as in Part 1 of OTA 1975 (see section 2 of that Act),
“decommissioning expenditure” has the meaning given by section 330C, and
“the relevant accounting period” —
in a case where section 301 applies, is to be construed in accordance with subsection (7) of that section, and
in any other case, means the accounting period for which a deduction in respect of any petroleum revenue tax with which the participator may be chargeable for the chargeable period mentioned in subsection (1) would be made under section 299(2) (deduction of PRT in calculating income for corporation tax purposes).
Meaning of “decommissioning expenditure”
330C
1
In sections 330A and 330B “decommissioning expenditure” means expenditure incurred in connection with —
a
demolishing any plant or machinery,
b
preserving any plant or machinery pending its reuse or demolition,
c
preparing any plant or machinery for reuse,
d
arranging for the reuse of any plant or machinery, or
e
the restoration of any land.
2
It is immaterial for the purposes of subsection (1)(b) whether the plant or machinery is reused, is demolished or is partly reused and partly demolished.
3
It is immaterial for the purposes of subsection (1)(c) and (d) whether the plant or machinery is in fact reused.
4
In subsection (1)(e) “restoration” includes landscaping.
5
The Treasury may by order amend this section.
6
An order under subsection (5) may include transitional provision and savings.
4
In section 7 of FA 2011 (increase in rate of supplementary charge), in subsection (6), at the end insert —
See also sections 330A and 330B of CTA 2010 (which have effect in relation to the separate accounting period consisting of so much of the straddling period as falls on or after 24 March 2011).
Extension of loss relief available in respect of decommissioning expenditure
5
1
In Chapter 2 of Part 4 of CTA 2010 (relief for trade losses), section 40 (ring fence trades: extension of periods for which relief may be given) is amended as follows.
2
In subsection (1)(b), for the words from “for which” to the end substitute “for which any allowances under section 164 or 403 of CAA 2001 are made to the company in respect of decommissioning expenditure”.
3
In subsection (3) —
a
for “the allowance” substitute “the sum of the allowances”, and
b
for “that allowance” substitute “that amount”.
4
After that subsection insert —
3A
In this section “decommissioning expenditure” has the meaning given by section 330C.
Application
6
1
The amendments made by this Schedule have effect in relation to expenditure incurred in connection with decommissioning carried out on or after 21 March 2012.
2
In sub-paragraph (1) “decommissioning” means anything falling within any of paragraphs (a) to (e) of section 330C(1) of CTA 2010 (as inserted by this Schedule).
SCHEDULE 22
Reduction of supplementary charge for certain oil fields
Section 184
Amendments of Chapter 7 of Part 8 of CTA 2010
1
In Part 8 of CTA 2010 (oil activities), Chapter 7 (reduction of supplementary charge for certain new oil fields) is amended as follows.
2
In section 334 (company’s pool of field allowances), for “new oil fields” substitute “eligible oil fields”.
3
1
Section 337 (initial licensee to hold a field allowance) is amended as follows.
2
In subsection (1) —
a
for “an initial licensee in a new oil field” substitute “a licensee in an additionally-developed oil field or a new oil field (an “eligible oil field”) on the authorisation day”, and
b
at the end insert “(and accordingly may hold more than one field allowance for the field at the same time)”.
3
In subsection (2), omit “initial”.
4
The heading of that section becomes “ Licensee to hold field allowance ”.
4
In section 338 (holding a field allowance on acquisition of equity share), for “a new oil field” substitute “an eligible oil field”.
5
In section 339 (unactivated amount of field allowance), in subsections (1) and (3), for “a new oil field” substitute “an eligible oil field”.
6
1
Section 340 (introduction to section 341) is amended as follows.
2
In subsection (1), for “a new oil field” substitute “an eligible oil field”.
3
In subsection (5), for “the new oil field” substitute “the field”.
7
1
Section 341 (activation of field allowance) is amended as follows.
2
In subsection (1), for “the new oil field” substitute “the eligible oil field”.
3
After subsection (3) insert —
4
Subsection (5) applies for the purpose of determining the amount of a company’s field allowance for an eligible oil field (“the relevant field allowance”) to be activated in a case where —
a
the company holds one or more other field allowances for the field, and
b
at the time when the company began to hold the relevant field allowance, the company already held one or more of those other field allowances (an “earlier field allowance”).
5
The amount of the company’s relevant income from the field in the accounting period is to be reduced (but not to below nil) by the amount of any earlier field allowance activated in respect of the accounting period.
6
In a case where the company began to hold two or more field allowances at the same time, the company may determine the order in which the company is to be regarded for the purposes of this section as having begun to hold them.
8
In section 342 (introduction to sections 343 and 344), in subsections (1) and (6), for “a new oil field” substitute “an eligible oil field”.
9
In section 343 (reference periods), in subsection (3), for “the new oil field” substitute “the eligible oil field”.
10
1
Section 344 (activation of field allowance) is amended as follows.
2
In subsection (1), for “the new oil field” substitute “the eligible oil field”.
3
In subsection (4), for “the new oil field” substitute “the field”.
4
After that subsection insert —
5
Subsection (6) applies for the purpose of determining the amount of a company’s field allowance for an eligible oil field (“the relevant field allowance”) to be activated in a case where —
a
the company holds one or more other field allowances for the field, and
b
at the time when the company began to hold the relevant field allowance, the company already held one or more of those other field allowances (an “earlier field allowance”).
6
The amount of the company’s relevant income from the field in the reference period is to be reduced (but not to below nil) by the amount of any earlier field allowance activated in respect of the reference period.
7
In a case where the company began to hold two or more field allowances at the same time, the company may determine the order in which the company is to be regarded for the purposes of this section as having begun to hold them.
11
1
Section 345 (introduction to sections 346 and 347) is amended as follows.
2
In subsection (2) —
a
for “a new oil field” substitute “an eligible oil field”, and
b
for “the new oil field” substitute “the field”.
3
In subsections (3) and (4), for “the new oil field” substitute “the field”.
4
In subsection (6), for “a new oil field” substitute “an eligible oil field”.
12
1
Section 346 (reduction of field allowance if equity disposed of) is amended as follows.
2
In subsection (1), for “the new oil field” (in the first place it occurs) substitute “the eligible oil field”.
3
In the definitions of “E1” and “E2”, for “the new oil field” substitute “the field”.
13
1
Section 347 (acquisition of field allowance if equity acquired) is amended as follows.
2
In subsection (1), for “the new oil field” substitute “the eligible oil field”.
3
In subsection (2) —
a
for “the new oil field” (in the first place it occurs) substitute “the eligible oil field”, and
b
for “the new oil field” (in the second place it occurs) substitute “the field”.
4
In subsection (4), for “the new oil field” substitute “the field”.
14
1
Section 349 (orders) is amended as follows.
2
In subsection (1), before “qualifying oil fields” insert “additionally-developed oil fields or”.
3
In subsection (2), for “new oil field” (in both places) substitute “eligible oil field”.
4
After subsection (2) insert —
2A
The Commissioners for Her Majesty’s Revenue and Customs may by order make provision about the meaning of any term used in this Chapter.
5
For subsection (3) substitute —
3
The provision that may be made by an order under this section includes —
a
provision amending this Chapter,
b
provision that has effect in relation to times before the order is made and does not increase any person’s liability to tax, and
c
incidental, supplemental, consequential, transitional or saving provision, including provision amending, repealing or revoking any provision made by or under this Act.
15
Before section 350 insert —
Additionally-developed oil field”
349A
1
In this Chapter an oil field is an “additionally-developed oil field” if —
a
a national authority has authorised a project described in an addendum to the consent for development for the oil field, and
b
the project meets such conditions as may be specified in an order made by the Commissioners for Her Majesty’s Revenue and Customs.
2
In this section —
“consent for development”, in relation to an oil field, does not include consent which is limited to the purpose of testing the characteristics of an oil-bearing area,
“development”, in relation to an oil field, means winning oil from the field otherwise than in the course of searching for oil or drilling wells, and
“national authority” means —
the Secretary of State, or
a Northern Ireland department.
3
An order under this section may include provision having effect in relation to times before it is made, provided that it does not increase any person’s liability to tax.
4
No order may be made under this section unless a draft of the statutory instrument containing it has been laid before and approved by a resolution of the House of Commons.
16
1
Section 357 (other definitions) is amended as follows.
2
For the definition of “authorisation day” substitute —
“authorisation day” means —
in relation to an additionally-developed oil field, the day when the project mentioned in section 349A(1) is authorised, and
in relation to a new oil field, the day when development of the field is authorised as mentioned in section 350(1)(b),
.
3
After that definition insert —
“eligible oil field” means an oil field which is an additionally-developed oil field or a new oil field,
.
4
Omit the definition of “initial licensee”.
5
In the definition of “relevant income”, for “a new oil field” substitute “an eligible oil field”.
17
The heading of the Chapter becomes “ REDUCTION OF SUPPLEMENTARY CHARGE FOR ELIGIBLE OIL FIELDS ”.
Consequential amendments
18
1
Part 8 of CTA 2010 (oil activities) is amended as follows.
2
In section 270 (overview of Part) —
a
in subsection (7), for “certain new oil fields” substitute “eligible oil fields”, and
b
in subsection (8), for paragraph (c) substitute —
c
eligible oil field”, see section 357.
3
In section 330 (supplementary charge in respect of ring fence trades), in subsection (5), for “certain new oil fields” substitute “eligible oil fields”.
19
1
Schedule 4 to CTA 2010 (index of defined expressions) is amended as follows.
2
At the appropriate place insert —
eligible oil field (in Chapter 7 of Part 8) section 357
;
“additionally-developed oil field (in Chapter 7 of Part 8) section 349A
.
3
Omit the entry relating to “initial licensee (in Chapter 7 of Part 8)”.
20
In section 63 of FA 2011 (reduction of supplementary charge for new oil fields), omit subsection (3).
Commencement
21
1
The amendments made by paragraphs 14, 15 and 16(3) come into force on the day on which this Act is passed.
2
The other amendments made by this Schedule come into force in accordance with provision contained in an order made by the Treasury.
3
An order made under sub-paragraph (2) may —
a
make different provision for different purposes;
b
provide for such amendments to have effect in relation to times before the order is made.
22
1
The Commissioners for Her Majesty’s Revenue and Customs may by order make any incidental, supplemental, consequential, transitional or saving provision in consequence of the amendments made by this Schedule.
2
An order under this paragraph may —
a
amend, repeal or revoke any provision made by or under CTA 2010;
b
include provision having effect in relation to times before it is made, provided that it does not increase any person’s liability to tax.
SCHEDULE 23
Air passenger duty
Section 190
PART 1
Northern Ireland long haul rates of duty from 1 November 2011 to 31 March 2012
1
In section 30 of FA 1994 (air passenger duty: rates of duty) after subsection (4A) insert —
4B
Subsection (4C) applies if —
a
the passenger’s journey is a relevant Northern Ireland journey, and
b
apart from subsection (4C), subsection (2) would not apply to the journey.
4C
The applicable rate in subsection (2) applies to the journey instead of the applicable rate in subsection (3), (4) or (4A) (as the case may be).
4D
A passenger’s journey is a “relevant Northern Ireland journey” —
a
in the case of a journey which has only one flight, if the flight begins in Northern Ireland, and
b
in any other case, if the first flight of the journey —
i
begins in Northern Ireland, and
ii
is not followed by a connected flight beginning at a place in the United Kingdom or a territory specified in Part 1 of Schedule 5A.
2
In article 3 of the Air Passenger Duty (Connected Flights) Order 1994 ( S.I. 1994/1821 ) for “section 30(6), or section 31(3),” substitute “Chapter 4 of Part 1”.
3
The amendments made by this Part of this Schedule have effect in relation to the carriage of passengers beginning on or after 1 November 2011 but before 1 April 2012.
PART 2
Rates of duty from 1 April 2012
4
1
Section 30 of FA 1994 (air passenger duty: rates of duty) is amended as follows.
2
In subsection (2) —
a
in paragraph (a) for “£12” substitute “£13”, and
b
in paragraph (b) for “£24” substitute “£26”.
3
In subsection (3) —
a
in paragraph (a) for “£60” substitute “£65”, and
b
in paragraph (b) for “£120” substitute “£130”.
4
In subsection (4) —
a
in paragraph (a) for “£75” substitute “£81”, and
b
in paragraph (b) for “£150” substitute “£162”.
5
In subsection (4A) —
a
in paragraph (a) for “£85” substitute “£92”, and
b
in paragraph (b) for “£170” substitute “£184”.
6
After subsection (4A) insert —
4B
Subsection (4C) applies if —
a
the passenger’s journey is a relevant Northern Ireland journey, and
b
apart from subsection (4C), subsection (2) would not apply to the journey.
4C
The applicable rate in subsection (2) applies to the journey instead of the applicable rate in subsection (3), (4) or (4A) (as the case may be).
4D
A passenger’s journey is a “relevant Northern Ireland journey” —
a
in the case of a journey which has only one flight, if the flight begins in Northern Ireland, and
b
in any other case, if the first flight of the journey —
i
begins in Northern Ireland, and
ii
is not followed by a connected flight beginning at a place in the United Kingdom or a territory specified in Part 1 of Schedule 5A.
5
In article 3 of the Air Passenger Duty (Connected Flights) Order 1994 ( S.I. 1994/1821 ) for “section 30(6), or section 31(3),” substitute “Chapter 4 of Part 1”.
6
The amendments made by this Part of this Schedule have effect in relation to the carriage of passengers beginning on or after 1 April 2012.
PART 3
Devolution of Northern Ireland long haul rates of duty
7
Chapter 4 of Part 1 of FA 1994 (air passenger duty) is amended as follows.
8
1
Section 30 (rates of duty) is amended as follows.
2
After subsection (1) insert —
1A
Subsection (1) does not apply to the carriage of a chargeable passenger to which section 30A below (Northern Ireland long haul rates of duty) applies.
3
Omit subsections (4B) to (4D) (as inserted by paragraph 4(6) above).
4
The amendments made by this paragraph have effect in relation to the carriage of passengers beginning on or after the relevant day as defined in section 30A of FA 1994 (as inserted by paragraph 9 below).
9
After section 30 insert —
Northern Ireland long haul rates of duty
30A
1
This section applies to the carriage of a chargeable passenger if —
a
the carriage begins on or after the relevant day,
b
the only flight, or the first flight, of the passenger’s journey begins at a place in Northern Ireland,
c
the passenger’s journey does not end at a place in the United Kingdom or a territory specified in Part 1 of Schedule 5A, and
d
if the passenger’s journey has more than one flight, the first flight is not followed by a connected flight beginning at a place in the United Kingdom or a territory specified in Part 1 of Schedule 5A.
2
Air passenger duty is chargeable on the carriage of the chargeable passenger at the rate determined as follows.
3
If the passenger’s journey ends at a place in a territory specified in Part 2 of Schedule 5A —
a
if the passenger’s agreement for carriage provides for standard class travel in relation to every flight on the passenger’s journey, the rate is the rate set by an Act of the Northern Ireland Assembly for the purposes of this paragraph, and
b
in any other case, the rate is the rate set by an Act of the Northern Ireland Assembly for the purposes of this paragraph.
4
If the passenger’s journey ends at a place in a territory specified in Part 3 of Schedule 5A —
a
if the passenger’s agreement for carriage provides for standard class travel in relation to every flight on the passenger’s journey, the rate is the rate set by an Act of the Northern Ireland Assembly for the purposes of this paragraph, and
b
in any other case, the rate is the rate set by an Act of the Northern Ireland Assembly for the purposes of this paragraph.
5
If the passenger’s journey ends at any other place —
a
if the passenger’s agreement for carriage provides for standard class travel in relation to every flight on the passenger’s journey, the rate is the rate set by an Act of the Northern Ireland Assembly for the purposes of this paragraph, and
b
in any other case, the rate is the rate set by an Act of the Northern Ireland Assembly for the purposes of this paragraph.
6
The rate of £0 may be set for the purposes of any paragraph.
7
The same rate may be set for the purposes of two or more paragraphs.
8
Subsections (5) to (7) and (10) to (12) of section 30 apply for the purposes of this section as they apply for the purposes of that section.
9
“The relevant day” means the day appointed as such by an order.
10
Section 42(4) and (5) does not apply to an order under subsection (9) .
11
None of the following applies to any matter in respect of which this section authorises provision to be made by an Act of the Northern Ireland Assembly —
a
any paragraph of Schedule 2 or 3 to the Northern Ireland Act 1998 (excepted and reserved matters);
b
section 63 of that Act (financial acts of the Assembly).
12
A Bill containing provision authorised by this section may not be passed by the Northern Ireland Assembly except in pursuance of a recommendation which —
a
is made by the Minister of Finance and Personnel, and
b
is signified to the Assembly by the Minister or on the Minister’s behalf.
13
A Bill containing provision authorised by this section may not be passed by the Northern Ireland Assembly without cross-community support (as defined in section 4(5) of the Northern Ireland Act 1998).
14
“Passed”, in relation to a Bill, means passed at the final stage (at which the Bill can be passed or rejected but not amended).
15
Duty paid to the Commissioners in respect of the carriage of chargeable passengers to which this section applies must be paid by the Commissioners into the Consolidated Fund of Northern Ireland.
10
1
Section 33 (registration of aircraft operators) is amended as follows.
2
After subsection (2) insert —
2A
If the Commissioners decide to keep a register under section 33A below, an operator of a chargeable aircraft does not become liable to be registered under this section just because the aircraft is used for the carriage of chargeable passengers to which section 30A above applies.
3
In subsection (3)(b) after “passengers” insert “or, if the Commissioners have decided to keep a register under section 33A below, that no chargeable aircraft which he operates will be used for the carriage of chargeable passengers apart from the carriage of chargeable passengers to which section 30A above applies”.
4
In subsection (4) after “registered” (in both places) insert “under this section”.
5
In subsection (7) after “section” insert “or section 33A below”.
11
After section 33 insert —
Registration of Northern Ireland long haul aircraft operators
33A
1
The Commissioners may under this section keep a register of aircraft operators.
2
If the Commissioners decide to keep a register under this section, the operator of a chargeable aircraft becomes liable to be registered under this section if the aircraft is used for the carriage of chargeable passengers to which section 30A above applies.
3
A person who has become liable to be registered under this section ceases to be so liable if the Commissioners are satisfied at any time —
a
that he no longer operates any chargeable aircraft, or
b
that no chargeable aircraft which he operates will be used for the carriage of chargeable passengers to which section 30A above applies.
4
A person who is not registered under this section and has not given notice under this subsection shall, if he becomes liable to be registered under this section at any time, give written notice of that fact to the Commissioners not later than the end of the prescribed period beginning with that time.
5
Notice under subsection (4) above shall be in such form, be given in such manner and contain such information as the Commissioners may direct.
12
In section 34 (fiscal representatives) in subsection (5) —
a
omit “under section 33 above”, and
b
in paragraph (a) for “that section” substitute “section 33 or 33A above”.
13
After section 41 insert —
Northern Ireland long haul rates of duty: disclosure of information
41A
1
An officer of Revenue and Customs may disclose to the Secretary of State, the Treasury or the Department of Finance and Personnel in Northern Ireland any information for purposes connected with the setting of rates of duty under section 30A above, including (in particular) to enable the setting of rates under that section to be taken into account for the purposes of section 58 of the Northern Ireland Act 1998 (payments by Secretary of State into Consolidated Fund of Northern Ireland).
2
Information disclosed under subsection (1) above may not be further disclosed without the consent of the Commissioners (which may be general or specific).
3
In section 19 of the Commissioners for Revenue and Customs Act 2005 (wrongful disclosure) references to section 18(1) of that Act are to be read as including a reference to subsection (2) above.
14
In section 44 of CRCA 2005 (payment into Consolidated Fund) after subsection (2)(c) insert —
ca
sums required by section 30A(15) of the Finance Act 1994 (air passenger duty: Northern Ireland long haul rates of duty) to be paid into the Consolidated Fund of Northern Ireland,
.
15
In column 2 of the Table in paragraph 1 of Schedule 41 to FA 2008 (penalties for failure to notify), in the entry relating to air passenger duty, after “33(4)” insert “or 33A(4)”.
PART 4
Other provision
16
Chapter 4 of Part 1 of FA 1994 (air passenger duty) is amended as follows.
17
In section 28 (introduction to air passenger duty) for subsection (3) substitute —
3
Sections 29 and 29A below set out how to determine if an aircraft is a chargeable aircraft for the purposes of this Chapter.
18
1
Section 29 (chargeable aircraft) is amended as follows.
2
For subsection (1) substitute —
1
For the purposes of this Chapter an aircraft is a chargeable aircraft if —
a
it is a fixed-wing aircraft designed or adapted to carry persons in addition to the flight crew,
b
its authorised take-off weight is not less than 5.7 tonnes, and
c
it is fuelled by kerosene (as defined in section 1(8) of the Hydrocarbon Oil Duties Act 1979).
3
In subsection (2) for “ten” (wherever occurring) substitute “5.7”.
4
Omit subsection (3).
19
After section 29 insert —
Chargeable aircraft: exceptions
29A
1
This section applies for the purposes of this Chapter.
2
An aircraft is not a chargeable aircraft whenever its operation falls within an exemption set out in sub-paragraph (b), (c), (f) or (g) under the category of activity “Aviation” in Annex I to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 (as amended by Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008).
3
Those exemptions are to be read in accordance with paragraphs 2.2 to 2.5 of the Annex to Commission Decision 2009/450/EC of 8 June 2009.
4
An aircraft is not a chargeable aircraft whenever it is being operated under a public service obligation imposed under Article 16 of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 (common rules for the operation of air services).
20
In section 30 (rate of duty) before subsection (5) insert —
4E
In relation to the carriage of a chargeable passenger on an aircraft to which subsection (4F) applies —
a
if the rate which (apart from this subsection) would apply is the rate in subsection (2)(a) or (b), a rate equal to twice the rate in subsection (2)(b) is to apply instead,
b
if the rate which (apart from this subsection) would apply is the rate in subsection (3)(a) or (b), a rate equal to twice the rate in subsection (3)(b) is to apply instead,
c
if the rate which (apart from this subsection) would apply is the rate in subsection (4)(a) or (b), a rate equal to twice the rate in subsection (4)(b) is to apply instead, and
d
if the rate which (apart from this subsection) would apply is the rate in subsection (4A)(a) or (b), a rate equal to twice the rate in subsection (4A)(b) is to apply instead.
4F
This subsection applies to an aircraft if —
a
its authorised take-off weight is not less than 20 tonnes, but
b
it is not authorised to seat more than 18 persons (excluding members of the flight crew and cabin attendants).
4G
In subsection (4F)(a) “take-off weight” is to be read in accordance with section 29(2) but as if “20” were substituted for “5.7” wherever occurring.
4H
For the purposes of subsection (4F)(b) an aircraft is authorised to seat more than 18 persons (excluding members of the flight crew and cabin attendants) if —
a
there is a certificate of airworthiness (as defined in section 29(4)) in force in respect of the aircraft showing that the maximum number of persons who may be seated on the aircraft (excluding members of the flight crew and cabin attendants) is more than 18, or
b
the Commissioners are satisfied that the aircraft is designed or adapted to seat more than 18 persons (excluding members of the flight crew and cabin attendants) or the aircraft belongs to a class or description of aircraft in respect of which the Commissioners are so satisfied.
21
In section 30A (as inserted by paragraph 9 above) after subsection (5) insert —
5A
In relation to the carriage of a chargeable passenger on an aircraft to which section 30(4F) applies —
a
if the rate which (apart from this subsection) would apply is the rate set for the purposes of subsection (3)(a) or (b), the following rate is to apply instead —
i
the rate set by an Act of the Northern Ireland Assembly for the purposes of this paragraph, or
ii
if no rate is so set for the purposes of this paragraph, a rate equal to twice the rate set for the purposes of subsection (3)(b),
b
if the rate which (apart from this subsection) would apply is the rate set for the purposes of subsection (4)(a) or (b), the following rate is to apply instead —
i
the rate set by an Act of the Northern Ireland Assembly for the purposes of this paragraph, or
ii
if no rate is so set for the purposes of this paragraph, a rate equal to twice the rate set for the purposes of subsection (4)(b), and
c
if the rate which (apart from this subsection) would apply is the rate set for the purposes of subsection (5)(a) or (b), the following rate is to apply instead —
i
the rate set by an Act of the Northern Ireland Assembly for the purposes of this paragraph, or
ii
if no rate is so set for the purposes of this paragraph, a rate equal to twice the rate set for the purposes of subsection (5)(b).
22
1
Section 43 (interpretation) is amended as follows.
2
In subsection (1) for the definition of “passenger” substitute —
“passenger”, in relation to any aircraft, means any person carried on the aircraft other than —
a member of the flight crew,
a cabin attendant, or
a person who is not carried for reward and who satisfies such other requirements as may be prescribed.
3
After subsection (1) insert —
1A
The agreements and arrangements covered by the definition of “agreement for carriage” in subsection (1) include informal agreements or arrangements between, for example, members of a family or friends.
23
The amendments made by this Part of this Schedule have effect in relation to the carriage of passengers beginning on or after 1 April 2013.
SCHEDULE 24
Machine games duty
Section 191
PART 1
Imposition of duty
The duty
1
A duty of excise, to be known as machine games duty, is to be charged on the playing of dutiable machine games in the United Kingdom.
Dutiable machine games
2
1
A “machine game” is a game (whether of skill or chance or both) played on a machine for a prize.
2
A machine game is “dutiable” if —
a
the prize or at least one of the prizes that can be won from playing the game on the machine is or includes cash, and
b
the maximum amount of cash that a player can win from playing the game on the machine exceeds the lowest charge payable for playing the game on the machine.
3
“Cash” means money or anything that may reasonably be considered to equate to money, including —
a
anything that can be used in the same way as if it were money, and
b
anything that allows a person to obtain money on demand or otherwise represents a promise to pay a person money on demand.
4
The things mentioned in sub-paragraph (3) include —
a
anything of an intangible nature (such as points), and
b
anything that a person has as a result of the taking of any step by someone else (such as the crediting of an account).
5
If an adult would reasonably assume that a machine game satisfies the tests in sub-paragraph (2)(a) and (b) (taking into account the way in which the game is presented and all the other circumstances of the case), the game is taken to be a dutiable machine game, whether or not it does in fact satisfy those tests.
6
In identifying for the purposes of this paragraph the lowest charge payable for playing a game, any offer that waives or permits a player to pay less than the charge that the player would be required to pay without the offer is disregarded.
7
Paragraph 3 makes further provision about what counts as a dutiable machine game for the purposes of this Schedule.
3
1
A game that would otherwise be a dutiable machine game does not count as one if —
a
it involves betting on future real events,
b
bingo duty is charged on the playing of it,
c
lottery duty is charged on the taking of a ticket or chance in it, or
d
it is a real game of chance and playing it —
i
amounts to dutiable gaming for the purposes of section 10 of FA 1997, or
ii
would do so but for subsection (3), (3B) or (4) of that section.
2
A “real game of chance” is a game of chance (within the meaning of BGDA 1981) that is non-virtual.
3
A game consisting of several stages counts as a dutiable machine game if —
a
at least one stage would (if played on its own) be a dutiable machine game, or
b
the stages (taken together) amount to a dutiable machine game.
4
If more than one game can be played on a given machine, each game is to be considered separately in deciding whether it is a dutiable machine game.
4
The Treasury may by order specify criteria to be taken into account in deciding —
a
whether a particular game (or class of game) falls within the definitions in paragraph 2(1) and (2), and
b
what counts as a single go at playing a particular game (or class of game).
Types of machine
5
1
Machines are divided into two types for the purposes of machine games duty.
2
A machine is a “type 2 machine” if it can be demonstrated that —
a
the highest charge payable for playing a dutiable machine game on the machine does not exceed 10p, and
b
the maximum amount of cash that can be won from playing a dutiable machine game on the machine does not exceed £8.
3
Any other machine is a “type 1 machine”.
4
The Treasury may by order substitute for a sum for the time being specified in sub-paragraph (2)(a) or (b) such higher sum as may be specified in the order.
How the duty is charged
6
1
Machine games duty is charged on a taxable person’s total net takings in an accounting period for each type of machine.
2
The amount of the duty is found by —
a
applying the standard rate to the person’s total net takings in the accounting period for type 1 machines,
b
applying the lower rate to the person’s total net takings in the accounting period for type 2 machines, and
c
aggregating the results.
3
This is subject to paragraph 10 (negative amounts of duty).
4
The person’s “total net takings” in the accounting period for a type of machine are the sum of the person’s net takings in the period for all the relevant machines of that type.
5
The person’s “net takings” in the period for each relevant machine are determined in accordance with paragraphs 7 and 8.
6
If any of the relevant machines changes type during the accounting period —
a
the net takings in the part of the period before the change and the net takings in the part after the change are to be allocated separately in calculating the person’s total net takings in the period for each type of machine, and
b
if it is not possible to identify the part of a period to which an amount relates, the amount is to be apportioned on a just and reasonable basis.
7
For the meaning of “relevant machine” in relation to a taxable person and an accounting period, see paragraph 50.
Net takings per machine
7
1
A taxable person’s net takings in an accounting period for a relevant machine are —
a
the takings, less
b
the payouts.
2
The takings are the charges that become due at any material time from players for playing dutiable machine games on that machine (irrespective of when the games are played or the prizes are paid out).
3
The payouts are the prizes (whether cash or non-cash) that are paid out at any material time to players as a result of playing dutiable machine games on that machine (irrespective of when the games are played or the charges become due).
4
Sub-paragraph (3) does not include prizes paid out to —
a
a person who is a registrable person in respect of the premises where the machine is located,
b
a representative or employee of such a person at those premises, or
c
a person acting for or at the direction of a person within paragraph (a).
5
Sub-paragraph (3) does not include prizes paid out unlawfully (for example, a prize paid out to a child or young person in breach of a condition attached to an operating licence by virtue of section 83(1)(b) of the Gambling Act 2005).
6
If it is not reasonably practicable to attribute charges and prizes to dutiable machine games or to apportion them between dutiable machine games and other games or other activities, any attribution or apportionment is to be done on a just and reasonable basis.
7
“Material time” means any time in the accounting period when the person is liable for machine games duty in respect of the machine.
8
The Commissioners may by regulations make provision about the point in time at which a charge is taken to become due, or a prize is taken to be paid out, for the purposes of this paragraph.
9
If a machine game is played in pursuance of an offer that permits the player to pay nothing or less than the charge that the player would be required to pay without the offer, the charge (if any) is treated as becoming due when the player plays the game.
10
A prize that is paid out using a system involving redemption tickets, points or anything similar is taken to be paid out when the prize is redeemed (rather than when the means of redemption is issued or communicated to the winner).
11
Sub-paragraphs (9) and (10) do not limit the power in sub-paragraph (8).
8
1
In calculating the takings and the payouts under paragraph 7, the following amounts are to be left out of account —
a
amounts arising from playing dutiable machine games on a domestic occasion, and
b
amounts arising in any other circumstances specified by the Treasury by order.
2
The power in sub-paragraph (1)(b) —
a
may be exercised generally or in relation to particular cases or kinds of case, and
b
may include provision requiring specified conditions to be met before amounts are left out of account.
The rates
9
1
The standard rate is 20%.
2
The lower rate is 5%.
3
If a rate changes during an accounting period —
a
the old rate is to be applied to the person’s total net takings in the part of the period before the change, and
b
the new rate is to be applied to the person’s total net takings in the part of the period after the change.
4
If it is not possible to identify for the purposes of sub-paragraph (3) the part of the period to which an amount relates, it is to be apportioned on a just and reasonable basis.
Negative amounts of duty
10
1
If the calculation of the amount of machine games duty for which a taxable person is liable for an accounting period results in a negative amount (“amount X”) —
a
the amount of machine games duty for which that person is liable for that period is treated as nil, and
b
the amount of duty for which that person is liable for the next accounting period is to be reduced by amount X.
2
Sub-paragraph (1) applies to an accounting period whether or not amount X results wholly or partly from the previous application of that sub-paragraph.
3
Subject to any reduction required by sub-paragraph (1)(b), the person is not entitled to any repayment or refund of machine games duty in respect of amount X.
Who is liable
11
1
A person is liable for machine games duty in respect of a machine at any time if at the time —
a
the person is responsible for the premises where the machine is located (see paragraph 12),
b
the machine is available there for use by others for playing dutiable machine games on it, and
c
the machine is not an excluded dual-use machine (see paragraph 13).
2
If, at any time, there is more than one person who satisfies sub-paragraph (1)(a) to (c) in respect of a machine, each of them is jointly and severally liable for the duty.
3
A person who is liable for machine games duty in accordance with this paragraph is referred to as a “taxable person”.
Responsible for premises
12
1
This paragraph sets out who is “responsible” for premises for the purposes of paragraph 11.
2
If a person is registered in respect of premises, that person is responsible for the premises.
3
A person is “registered” at any time in respect of premises if at the time there is an entry in force for that person in the MGD register in respect of those premises.
4
If no-one is registered in respect of premises, any person who is a registrable person in respect of the premises or a representative of such a person is responsible for the premises.
5
Paragraphs 20 to 24 make further provision about registration and registrable persons.
Excluded dual-use machines
13
1
A machine is an “excluded dual-use machine” if —
a
it is capable of being used both for playing machine games and for some other purpose that is not related to playing machine games, and
b
condition A or B is met.
2
Condition A is that the machine is not designed, adapted or presented in such a way as to —
a
facilitate its use for playing dutiable machine games, or
b
draw attention to the possibility of its use for playing such games.
3
Condition B is that the machine is so designed, adapted or presented but the person mentioned in paragraph 11(1) does not know, and could not reasonably be expected to know, that it is.
4
References to a machine being “adapted” include a machine to which anything has been done, including the installation of computer software on it.
5
The Commissioners may by order specify criteria to be taken into account in deciding whether a machine falls within the definition in sub-paragraph (1).
6
The Treasury may by order amend this paragraph.
Accounting periods
14
1
An accounting period for machine games duty is a period of 3 consecutive months.
2
The first day of an accounting period is such day as HMRC may direct.
3
A direction under sub-paragraph (2) may apply generally or only to a particular case or class of case.
4
HMRC may agree with a registered person to make either or both of the following changes for the purposes of that person’s liability to machine games duty —
a
to treat specified periods (whether longer or shorter than 3 months) as accounting periods,
b
to begin accounting periods on days other than those applying by virtue of sub-paragraph (2).
5
HMRC may by direction make transitional arrangements for periods (whether of 3 months or otherwise) to be treated as accounting periods where —
a
a person becomes or ceases to be registered, or
b
an agreement under sub-paragraph (4) begins or ends.
6
If there is reason to believe that a person who is liable for machine games duty may not discharge that liability as it falls due from time to time —
a
HMRC may by direction specify shorter periods to be treated as accounting periods for the purposes of that person’s liability to machine games duty,
b
any such direction continues to have effect until it is withdrawn by HMRC (unless otherwise specified in the direction), and
c
withdrawal of a direction does not prevent the giving of further directions in respect of the same person.
Valuing prizes
15
1
This paragraph applies in valuing prizes for the purposes of this Schedule (including in determining the maximum amount of cash that can be won from playing a machine game).
2
The value of a prize includes any portion that —
a
represents a refund of the charge payable for playing the game, or
b
is calculated by reference to the amount of any such charge.
3
The value of a prize in the form of something that is reasonably considered to equate to money is equal to the amount of money to which the thing is reasonably considered to equate.
4
For a prize in the form of a currency other than sterling or in the form of something that is reasonably considered to equate to such a currency —
a
the value of the prize is, in relation to any day, the sterling equivalent of that currency determined by reference to the London closing rate for that currency for the previous day, and
b
for the purposes of paragraph 7(3), the day in relation to which the value is assessed is the last day of the relevant accounting period.
5
The value of a prize other than cash depends on the person (“A”) from whom the person paying out the prize (“B”) obtained it —
a
if A was not connected with B when B obtained the prize from A, the value is the cost to B of obtaining the prize from A,
b
if A was connected with B when B obtained the prize from A, the value is the smaller of —
i
the cost to B of obtaining the prize from A, and
ii
the amount that it would have cost B, at the time B obtained the prize, to obtain it from a person not connected with B.
6
Whether A is connected with B is to be determined in accordance with section 1122 of CTA 2010.
7
If the value of a prize other than cash cannot reasonably be determined in accordance with sub-paragraph (5), the value of the prize is such amount as is just and reasonable.
8
For the purposes of sub-paragraph (5), an amount paid by way of value added tax on the acquisition of a thing is to be treated as part of its cost (whether or not the amount is taken into account for the purpose of a credit or refund).
9
The Commissioners may by regulations make further provision about the way in which prizes are to be valued for the purposes of this Schedule.
10
This paragraph applies to a part of a prize as it applies to a whole prize, and references to a prize are to be read accordingly.
Valuing charges
16
1
This paragraph applies in determining for the purposes of this Schedule the amount of a charge (or the highest or lowest charge) payable or due for playing a machine game.
2
If the amount of a charge in money’s worth cannot be determined, it is assumed to be such amount as is just and reasonable.
3
If a composite charge is payable or due for the opportunity to play a machine game more than once, the amount of the charge payable or due for each individual go is to be determined on a just and reasonable basis.
4
If a composite charge is payable or due for the opportunity to play a machine game and for something else, the amount of the charge payable or due for playing the game is to be determined on a just and reasonable basis.
5
The Commissioners may by regulations make further provision about the way in which the amount of charges is to be determined for the purposes of this Schedule.
6
Sub-paragraph (7) applies if —
a
a dutiable machine game is played in pursuance of an offer that permits the player to pay nothing or less than the charge that the player would have been required to pay without the offer,
b
the offer was made available to the player by way of winnings from an activity in respect of which another duty of excise or value added tax is charged, and
c
the value of the offer is deductible in calculating the amount of that other duty or value added tax payable in respect of that activity.
7
The amount of the charge due from the player for playing the dutiable machine game is taken for the purposes of paragraph 7 to be the amount that the player would have been required to pay without the offer.
8
Regulations under sub-paragraph (5) may include provision extending or modifying the circumstances in which sub-paragraph (7) applies.
Collection and management
17
The Commissioners are responsible for the collection and management of machine games duty.
Returns
18
1
The Commissioners may make regulations requiring registrable persons to make returns to HMRC in respect of relevant machines.
2
Regulations under this paragraph may in particular make provision about —
a
liability to make a return,
b
timing,
c
form,
d
content,
e
method of making (including provision requiring returns to be made electronically),
f
declarations,
g
authentication, and
h
when a return is to be treated as made.
Assessment and payment
19
1
The Commissioners may make regulations about payment of machine games duty.
2
The regulations may in particular make provision about —
a
timing,
b
instalments,
c
methods of payment (including provision requiring payments to be made electronically),
d
when payment is to be treated as made, and
e
the process and effect of assessments by HMRC of amounts due.
3
Subject to regulations under this paragraph, section 12 of FA 1994 (assessment) applies in relation to liability to pay machine games duty.
Registration
20
1
The Commissioners must maintain a register of those responsible for premises where relevant machines are located.
2
The register is to be known as the MGD register.
3
A person must not make a relevant machine available for use by others for playing dutiable machine games on it unless a registrable person (whether that person or someone else) is registered in respect of the premises where the machine is located.
4
Paragraph 21 identifies who is a registrable person in respect of premises.
5
This paragraph does not apply in relation to a relevant machine if it is reasonable to expect that the only takings and the only payouts in respect of the machine would be amounts that would be left out of account by virtue of paragraph 8.
Registrable persons
21
1
If a person holds a relevant licence or permit in respect of premises, that person is a registrable person in respect of those premises.
2
But if the premises are leased to a person (“T”) for the purposes of an activity for which an alcohol licence is required and the alcohol licence in respect of the premises is held by someone else, T (and not the licence-holder) is a registrable person in respect of those premises.
3
If the premises are a stall at a travelling fair, each of the following is a registrable person in respect of the premises —
a
the holder of the stall, and
b
the person in charge of the fair.
4
For premises not falling within any of the preceding sub-paragraphs, each person listed in sub-paragraph (5) is a registrable person in respect of the premises.
5
The persons are —
a
a person required to hold a relevant licence or permit in respect of the premises,
b
an owner, lessee or occupier of the premises,
c
a person who is responsible to the owner, lessee or occupier for the management of the premises,
d
a person who is responsible for controlling the use of machines that are made available on the premises for use by others for playing dutiable machine games on them, and
e
a person who is responsible for controlling the admission of persons to the premises or for providing persons resorting to the premises with goods or services.
6
“Relevant licence or permit” is defined in paragraph 22.
7
“Alcohol licence” means —
a
a premises licence issued under Part 3 of the Licensing Act 2003 that authorises the supply of alcohol for consumption on the licensed premises,
b
a premises licence issued under Part 3 of the Licensing (Scotland) Act 2005, except where such a licence only applies to the sale of alcohol for consumption off the premises, and
c
a licence issued under the Licensing (Northern Ireland) Order 1996 ( S.I. 1996/3158 (N.I. 22) ), except where such a licence only applies to the sale of intoxicating liquor by retail for consumption off the premises.
8
“Travelling fair” means a fair —
a
consisting wholly or principally of the provision of amusements,
b
provided wholly or principally by persons who travel from place to place for the purpose of providing such fairs, and
c
held at a place no part of which has been used for the provision of such a fair on more than 27 days in the same calendar year.
22
1
A “relevant licence or permit” is —
a
a licence issued under Part 8 of the Gambling Act 2005,
b
a family entertainment centre gaming machine permit as defined in section 247 of that Act,
c
a club gaming permit as defined in section 271 of that Act,
d
a club machine permit as defined in section 273 of that Act,
e
a prize gaming permit as defined in section 289 of that Act,
f
an on-premises alcohol licence or a relevant Scottish licence as defined, in each case, in section 277 of that Act but only if a licence or permit listed above is not held in respect of the same premises,
g
a club premises certificate granted under Part 4 of the Licensing Act 2003 but only if a licence or permit listed above is not held in respect of the same premises,
h
a certificate of registration within the meaning of the Betting, Gaming Lotteries and Amusements (Northern Ireland) Order 1985 ( S.I. 1985/1204 (N.I. 11) ),
i
a bookmaking office licence within the meaning of that Order,
j
a bingo club licence within the meaning of that Order,
k
an amusement permit within the meaning of that Order,
l
a certificate of registration within the meaning of the Registration of Clubs (Northern Ireland) Order 1996 ( S.I. 1996/3159 (N.I. 23) ), or
m
a licence issued under the Licensing (Northern Ireland) Order 1996 ( S.I. 1996/3158 (N.I. 22) ) but only if a licence, permit or certificate listed above is not held in respect of the same premises.
2
In sub-paragraph (1), “listed above” means listed in any of the preceding provisions of that sub-paragraph.
3
The Treasury may by order amend this paragraph to add to, vary or restrict the list in sub-paragraph (1).
Compulsory registration
23
1
Sub-paragraph (2) applies if —
a
it appears to HMRC that a relevant machine is being made available by anyone at premises for use by others for playing dutiable machine games on it, and
b
no-one is registered in respect of the premises.
2
HMRC may give a notice under this paragraph to any person they believe to be a registrable person in respect of the premises.
3
The notice is referred to as a “registration notice”.
4
A person to whom a registration notice is given may appeal to an appeal tribunal against the notice.
5
The appeal may be made on either or both of the following grounds —
a
that the person is not a registrable person in respect of the premises,
b
that relevant machines are not being made available at the premises for use by others for playing dutiable machine games on them.
6
The appeal must be made within the period of 30 days beginning with the date of the registration notice.
7
If —
a
no appeal is made within that period, or
b
an appeal made within that period is dismissed or withdrawn,
HMRC may proceed to register the person in respect of the premises (unless another person has since become registered in respect of them).
8
Registration under this paragraph is treated as made with effect from the date of the registration notice.
Procedure for registration, de-registration etc
24
1
The Commissioners may make regulations about registration.
2
Regulations under this paragraph may in particular make provision about —
a
the procedure for applying for registration (including provision requiring applications to be made electronically),
b
the timing of applications,
c
the information to be provided,
d
the giving of registration notices and the making of appeals against them,
e
the procedure for compulsory registration under paragraph 23,
f
notification of changes to the register,
g
de-registration, and
h
re-registration after a person ceases to be registered.
3
The regulations may permit HMRC to make registration, or continued registration, subject to conditions.
4
Those conditions may in particular require —
a
the provision of security for the payment of machine games duty, and
b
(in the case of a foreign person) the appointment of a United Kingdom representative with responsibility for discharging liability to machine games duty.
5
In sub-paragraph (4) “foreign person” means a person who —
a
in the case of an individual, is not usually resident in the United Kingdom,
b
in the case of a body corporate, does not have an established place of business in the United Kingdom, and
c
in any other case, does not include an individual who is usually resident in the United Kingdom.
6
The regulations may include provision for the registration of groups of persons; and may provide for the modification of the provisions of this Part of this Schedule in their application to groups.
7
The modifications may, for example, include a modification ensuring that, where a representative member of a group is registered in place of the members, each member will be jointly and severally liable for the duty payable by the representative member on behalf of the group.
Publication of register
25
1
The MGD register is to contain such details of those who are entered on the register and of the premises in respect of which they are registered as the Commissioners think fit.
2
The Commissioners may publish the register (or a part of it).
3
If they choose not to publish it or they choose to publish only a part of it, the Commissioners must nonetheless make arrangements for the provision of a copy of an entry in the register (or the unpublished part of it) to a member of the public on request.
4
But the Commissioners may refuse a request under sub-paragraph (3) if the person making the request does not pay a fee specified by the Commissioners.
5
The fee must not exceed the reasonable cost (including any indirect cost) of meeting the request.
Profit-sharers
26
1
Sub-paragraph (2) applies if —
a
it appears to HMRC that machine games duty may be chargeable in respect of a machine,
b
no-one is registered in respect of the premises where the machine is located, and
c
either —
i
HMRC do not know the identity of any of those responsible for the premises (see paragraph 12), or
ii
HMRC do know the identity of one or more such persons but none of them is in the United Kingdom.
2
HMRC may give a notice under this paragraph to any person they believe to be beneficially entitled to a share of the machine’s takings.
3
The notice must inform the person to whom it is given (“P”) that P will become liable to pay a share of the duty in accordance with this paragraph unless, within the specified period —
a
P provides HMRC with sufficient information to identify a person in the United Kingdom who is responsible for the premises, or
b
P satisfies HMRC that, when P became beneficially entitled to a share of the machine’s takings, P took all reasonable steps to ascertain that a registrable person was registered in respect of the premises.
4
The specified period is —
a
such period of 30 days or more as is specified in the notice, or
b
such other period as may be agreed between HMRC and P.
5
If P fails to satisfy sub-paragraph (3)(a) or (b) within the specified period, HMRC may assess to the best of their judgement an amount equal to P’s share of the machine games duty that would have been due in respect of the machine for an accounting period on the assumptions set out in sub-paragraph (6).
6
The assumptions are —
a
that P had been liable for machine games duty in respect of the machine in the accounting period in accordance with paragraph 11,
b
that the machine had been the only machine in respect of which P was so liable, and
c
that the dutiable machine games in respect of which P is beneficially entitled to a share of the takings had been the only dutiable machine games played on the machine.
7
P’s share is a percentage equal to the share of the machine’s takings to which P is beneficially entitled.
8
An assessment under this paragraph may relate to more than one machine, more than one set of premises and more than one accounting period.
9
But it may not relate to a period that began more than 4 years before the date of the assessment.
10
An amount assessed under this paragraph is deemed to be an amount of machine games duty assessed under section 12 of FA 1994 and due from P in accordance with regulations under paragraph 19 of this Schedule.
11
P is not entitled to any repayment from HMRC of an amount assessed under this paragraph if HMRC subsequently identify a person responsible for the premises.
12
But if, after P has paid such an amount, HMRC make an assessment under section 12 of FA 1994 of an amount of machine games duty due from another person in respect of the same takings from the same machine for the same accounting period, account must be taken in that assessment of the amount paid by P.
Reviews and appeals
27
1
The decisions mentioned in sub-paragraph (2) are to be treated as if they were listed in subsection (2) of section 13A of FA 1994 (customs and excise reviews and appeals: meaning of “relevant decision”) and, accordingly, as if they were relevant decisions for the purposes mentioned in subsection (1) of that section.
2
The decisions are —
a
a decision of HMRC to refuse a request for an agreement under paragraph 14,
b
a decision to give a direction under that paragraph,
c
a decision not to give such a direction,
d
a decision of HMRC under regulations by virtue of paragraph 24(2),
e
a decision of HMRC about security by virtue of paragraph 24(4)(a), and
f
a decision of HMRC about the appointment of a United Kingdom representative by virtue of paragraph 24(4)(b).
Interest
28
1
This paragraph applies if an order is made under section 104(3) of FA 2009 appointing a day on which sections 101 to 103 of that Act are to come into force for the purposes of machine games duty.
2
Interest charged under section 101 of that Act on an amount of machine games duty (or an amount enforceable as if it were machine games duty) may be enforced as if it were an amount of machine games duty payable by the person liable for the amount on which the interest is charged.
Penalties and enforcement
29
In Schedule 24 to FA 2007 (penalties for errors), in the Table in paragraph 1, after the entry relating to remote gaming duty insert —
Machine games duty Return under regulations under paragraph 18 of Schedule 24 to FA 2012.
30
In Schedule 41 to FA 2008 (penalties: failure to notify and certain VAT and excise wrongdoing), in the Table in paragraph 1, after the entry relating to remote gaming duty insert —
Machine games duty Obligation under paragraph 20(3) of Schedule 24 to FA 2012 (obligation to register in respect of premises).
31
In Schedule 55 to FA 2009 (penalty for failure to make returns etc), in the Table in paragraph 1, after item 28 insert —
29 Machine games duty Return under regulations under paragraph 18 of Schedule 24 to FA 2012
.
32
In that Schedule, in each of the following provisions, for “28” substitute “29” —
a
paragraph 2(1)(b),
b
paragraph 13A(1), and
c
paragraph 13F(1).
33
In Schedule 56 to FA 2009 (penalty for failure to make payments on time), in the Table in paragraph 1, after item 11M insert —
11N Machine games duty Amount payable under paragraph 6 of Schedule 24 to FA 2012 (except an amount falling within item 17A, 23 or 24) The date determined by or under regulations under paragraph 19 of Schedule 24 to FA 2012 as the date by which the amount must be paid
.
34
In that Schedule, in each of the following provisions, for “11M” substitute “11N” —
a
items 17A, 23 and 24 of the Table in paragraph 1,
b
paragraph 2(c),
c
paragraph 3(1)(b),
d
paragraph 8A(1), and
e
paragraph 8F(1).
35
1
Contravention of a provision mentioned in sub-paragraph (2) attracts a penalty under section 9 of FA 1994 (penalties) and also attracts daily penalties under that section.
2
The provisions are —
a
any provision of regulations made under paragraph 18,
b
any provision of regulations made under paragraph 19,
c
paragraph 20(3), and
d
any provision of regulations made under paragraph 24.
Forfeiture
36
1
A machine is liable to forfeiture if —
a
an officer of Revenue and Customs finds it on any premises,
b
the officer is satisfied that it is being, has been or is about to be made available on the premises for use by others for playing dutiable machine games on it, and
c
condition A or B is met.
2
Condition A is that —
a
no-one is registered in respect of the premises, and
b
there is a serious risk that any machine games duty chargeable in respect of the machine would not be paid.
3
Condition B is that the officer is satisfied that an amount of machine games duty has become due and payable in respect of the machine, but has not been paid.
Offences
37
1
A person commits an offence if the person is knowingly concerned in, or in the taking of steps with a view to, the fraudulent evasion (by that person or any other person) of any machine games duty.
2
A person guilty of an offence under this paragraph is liable —
a
on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine, or both;
b
on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the maximum amount, or both.
3
The maximum amount is the greater of —
a
the statutory maximum, and
b
three times the duty or other amount that is unpaid or the payment of which is sought to be avoided.
4
In the application of this paragraph —
a
in England and Wales, in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, or
b
in Northern Ireland,
the reference in sub-paragraph (2)(b) to 12 months is to be read as a reference to 6 months.
5
Section 27 of BGDA 1981 (offences by bodies corporate) has effect for the purposes of any offence under this paragraph as it has effect for the purposes of the offences mentioned in that section.
Protection of officers
38
Section 31 of BGDA 1981 applies in relation to machine games duty as it applies in relation to remote gaming duty.
Orders and regulations
39
1
This paragraph applies to orders and regulations under this Part of this Schedule.
2
Orders and regulations —
a
may make provision that applies generally or only for specified purposes,
b
may make different provision for different purposes, and
c
may include transitional provision and savings.
3
Regulations may confer a discretion on HMRC.
4
Orders and regulations are to be made by statutory instrument.
5
For the purposes of making an order under paragraph 8(1)(b) —
a
the statutory instrument containing the order must be laid before the House of Commons, and
b
the order ceases to have effect at the end of the period of 28 days beginning with the day on which it was made unless, during that period, it is approved by a resolution of the House of Commons.
6
In reckoning the 28-day period, no account is to be taken of any time during which —
a
Parliament is dissolved or prorogued, or
b
the House of Commons is adjourned for more than 4 days.
7
An order ceasing to have effect by virtue of sub-paragraph (5)(b) does not affect —
a
anything previously done under the order, or
b
the making of a new order.
8
A statutory instrument containing an order under paragraph 13(6) or 22(3) may not be made unless a draft of the instrument has been laid before and approved by a resolution of the House of Commons.
9
Subject to sub-paragraphs (5) and (8), a statutory instrument containing an order or regulations is subject to annulment in pursuance of a resolution of the House of Commons.
Transitional provision
40
1
The Commissioners may by notice direct that regulations under paragraph 24 (procedure for registration, de-registration etc) are to apply in relation to the period before the go-live date with the modifications specified in the notice.
2
A notice under sub-paragraph (1) must be published by the Commissioners.
3
For a person who, on the go-live date, is responsible for premises where a relevant machine is located, the first accounting period is to be the period beginning with that day and ending with —
a
the day before the day on which the next accounting period is to begin by virtue of a direction given under paragraph 14(2), or
b
such other day as is necessary to give effect to an agreement made under paragraph 14(4).
Consequential amendments
41
1
Section 1(1) of CEMA 1979 (interpretation) is amended as follows.
2
In the definition of “the revenue trade provisions of the customs and excise Acts”, at the end insert —
f
the provisions of Part 1 of Schedule 24 to the Finance Act 2012;
.
3
In the definition of “revenue trader”, in paragraph (a) —
a
omit “or” at the end of sub-paragraph (ic),
b
after that sub-paragraph insert —
id
being responsible for premises where relevant machines are located (within the meaning of Part 1 of Schedule 24 to the Finance Act 2012); or
, and
c
in sub-paragraph (ii), for “or (ic)” substitute “, (ic) or (id)”.
42
1
For section 118BC of that Act (inspection powers: gaming duty) substitute —
Inspection powers: gaming duty and machine games duty
118BC
1
Subsection (2) applies to premises if an officer has reasonable cause to believe that —
a
section 10 gaming is taking place, has taken place or is about to take place on the premises, or
b
machines are located on the premises in respect of which a person is, has been or is about to become liable for machine games duty.
2
The officer may at any reasonable time enter and inspect the premises and inspect —
a
accounts, records and other documents in the custody or control of any relevant person, and
b
any relevant equipment.
3
Subsection (1) does not permit an officer to enter or inspect a particular part of premises if —
a
the officer has no reasonable cause to believe that paragraph (a) or, as the case may be, (b) of that subsection is satisfied with respect to that particular part, and
b
the part is used solely as a dwelling.
4
An officer may at any reasonable time (whether or not as part of an inspection under subsection (2)) require a relevant person or anyone acting on such a person’s behalf —
a
to open relevant equipment, and
b
to carry out any other operation that may be necessary to enable the officer to ascertain whether any gaming duty or machine games duty is payable in respect of it and, if so, how much.
5
A “relevant person” is —
a
in relation to gaming duty, a person who is engaging, or whom the officer reasonably suspects of engaging, in section 10 gaming or in any activity by reason of which the person is or may become liable to gaming duty, and
b
in relation to machine games duty, a person who is, has been or is about to become liable to machine games duty or whom the officer reasonably suspects of being, having been or being about to become so liable.
6
“Relevant equipment” is —
a
in relation to gaming duty, equipment that is being, or the officer reasonably suspects of having been or of being intended to be, used on the premises for or in connection with section 10 gaming, and
b
in relation to machine games duty, any equipment that is, or the officer reasonably suspects of being, a machine in respect of which a person is, has been or may become liable to machine games duty and any other equipment used in connection with such a machine.
7
In this section —
a
“section 10 gaming” means gaming to which section 10 of the Finance Act 1997 applies, and
b
a reference to premises where a machine is located is to be read in accordance with Part 1 of Schedule 24 to the Finance Act 2012.
2
In section 118G of that Act (offences under Part 9A), in subsection (1), for “or section 118B” substitute “, 118B or 118BC(4)”.
43
In section 2 of BGDA 1981 (bookmakers: general bets), in subsection (2), omit paragraph (d).
44
1
Section 26H of BGDA 1981 (exemptions from remote gaming duty) is amended as follows.
2
After subsection (2A) insert —
2B
Subsection (2) does not apply in cases where the other gambling tax is machine games duty.
3
In subsection (3), before paragraph (b) insert —
aa
machine games duty,
.
45
In Schedule A1 to BGDA 1981 (betting duties: double taxation relief), in paragraph 7, after paragraph (c) insert —
ca
machine games duty,
.
46
In Schedule 4B to BGDA 1981 (remote gaming duty: double taxation relief), in paragraph 7, after paragraph (c) insert —
ca
machine games duty,
.
47
In section 12 of FA 1994 (assessment to excise duty), in subsection (2)(c), after “1997” insert “or Part 1 of Schedule 24 to the Finance Act 2012”.
48
In section 10 of FA 1997 (gaming duty), for subsection (3AA) substitute —
3AA
This section does not apply to the playing of a game in respect of which —
a
bingo duty or lottery duty is chargeable, or would be chargeable but for an express exception, or
b
machine games duty is chargeable.
49
In section 7 of the Borders, Citizenship and Immigration Act 2009 (Customs revenue functions of the director), in subsection (2)(e) —
a
omit “and” at the end of sub-paragraph (vi), and
b
at the end of sub-paragraph (vii) insert
and
viii
machine games duty;
.
Interpretation
50
In this Part of this Schedule —
“appeal tribunal” means the First-tier Tribunal or, where determined by or under Tribunal Procedure Rules, the Upper Tribunal;
“cash” has the meaning given in paragraph 2 (and “non-cash” is to be read accordingly);
“charge”, in relation to a game, means a charge or deduction in money or money’s worth, however it is described or levied and whether it becomes due before or after the game is played;
“the Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs;
“dutiable machine game” has the meaning given in paragraph 2, subject to paragraphs 3 and 4;
“game” does not include a sport;
“the go-live date” is defined in paragraph 66(5);
“HMRC” means Her Majesty’s Revenue and Customs;
“machine” means any apparatus that uses or applies mechanical power, electrical power or both;
“machine game” has the meaning given in paragraph 2;
“MGD register” has the meaning given in paragraph 20;
“money” means money in sterling or any other currency;
“payouts” means prizes paid out to players as a result of playing dutiable machine games on a machine;
“the payouts”, in relation to a particular taxable person and accounting period, has the meaning given in paragraph 7;
“premises” includes any place, any means of transport and any stall or other moveable structure;
“prize”, in relation to a game —
means a prize in the form of cash or non-cash (or both), however it is described or paid out and whether it is a prize provided by a person making the game available or is winnings of money staked, but
a benefit consisting of nothing more than the opportunity to play the game again does not count as a prize;
“registered” has the meaning given in paragraph 12 (and “registration” is to be read accordingly);
“registrable person” has the meaning given in paragraph 21;
“relevant machine” means —
a machine in respect of which machine games duty is or will be chargeable, or
in relation to a particular taxable person and accounting period, a machine in respect of which that person is liable for machine games duty in that period;
“representative” means a personal representative, trustee in bankruptcy, receiver or liquidator or any other person acting in a representative capacity;
“specified” includes described;
“takings” means charges due from players for playing dutiable machine games on a machine;
“the takings”, in relation to a particular taxable person and accounting period, has the meaning given in paragraph 7;
“taxable person” has the meaning given in paragraph 11;
“total net takings” has the meaning given in paragraph 6;
“United Kingdom” includes the territorial sea of the United Kingdom.
51
1
This Part of this Schedule is to be read in accordance with this paragraph.
2
A person “plays” a game if the person participates in the game —
a
whether or not there are other participants in the game, and
b
whether or not a computer generates images or data taken to represent the actions of other participants in the game.
3
A reference to the charge (or the lowest or highest charge) payable for playing a machine game —
a
is a reference to the charge (or the lowest or highest charge) payable for a single go at playing the game, and
b
includes any charge that entitles the person paying it to play a machine game or to play it at a reduced rate (even if the charge is ostensibly a charge for something else).
4
A reference to “paying” a charge is to be read, in the case of a charge in money’s worth, as a reference to the provision of the thing, or performance of the service, in money’s worth.
5
A reference to a prize (or the maximum amount of cash) that can be won from playing a machine game is a reference to a prize (or the maximum amount of cash) that can be won from a single go at playing the game.
6
A reference to “paying out” a prize is to be read, in the case of a prize in money’s worth, as a reference to the provision of the thing, or performance of the service, in money’s worth.
7
A reference to the premises where a machine is located or made available includes, in the case of a portable machine, the premises where the machine is issued to those wanting to play dutiable machines games on it.
52
The imposition or payment of machine games duty does not make lawful anything that is otherwise unlawful.
PART 2
Removal of amusement machine licence duty
Amendment of BGDA 1981
53
The following provisions of BGDA 1981 are omitted —
a
sections 21 to 26,
b
section 26H(3)(a),
c
section 26N(3) and (4), and
d
Schedules 4 and 4A.
54
1
Part 3 of that Act (general) is amended as follows.
2
In section 27 (offences by bodies corporate), for the words from “section 24” to “Schedule 4” substitute “paragraph 13(1) or (3) or 14(1) of Schedule 1 or paragraph 16 of Schedule 3”.
3
In section 31 (protection of officers), for “remote gaming duty or the duty on amusement machine licences” substitute “or remote gaming duty”.
4
In section 33 (interpretation), in subsection (2), for “remote gaming duty or the duty on amusement machine licences” substitute “or remote gaming duty”.
Amendment of other enactments
55
In section 102 of CEMA 1979, in subsection (3)(a), omit “or an amusement machine licence”.
56
In section 10 of FA 1997 (gaming duty), omit subsection (3A).
57
In Schedule 41 to FA 2008 (penalties: failure to notify and certain VAT and excise wrongdoing), in the Table in paragraph 1, omit the entry relating to amusement machine licence duty.
58
In section 7 of the Borders, Citizenship and Immigration Act 2009 (Customs revenue functions of the director), in subsection (2)(e), omit sub-paragraph (i).
Transitional provision and savings
59
1
If a licence granted under section 21 of BGDA 1981 is to expire on or after the go-live date, the holder of the licence is entitled to repayment of an amount of duty.
2
That amount is the difference between —
a
the amount of duty actually paid on the licence before the go-live date in accordance with section 23 of that Act, and
b
the amount (if less) determined in accordance with sub-paragraph (3).
3
The amount is to be determined as follows —
Step 1
Calculate the amount of duty that would have been paid if the period for which the licence was granted had been the number of complete months beginning with the date on which the licence was granted and ending immediately before the go-live date. The day immediately following the end of that period of complete months is referred to as “day X”.
Step 2
Add to the amount calculated under Step 1 an amount representing the duty payable for the period of days beginning with day X and ending with the day before the go-live date. The duty payable for each such day in that period is to be calculated as 1/365th of the amount of duty payable for a licence of 12 months for a machine of the relevant category.
4
If —
a
duty is being paid on the licence in accordance with arrangements made under paragraph 7A of Schedule 4 to BGDA 1981 (payment of duty by instalments), and
b
the amount of duty actually paid on the licence before the go-live date in accordance with section 23 of that Act is less than the amount determined in accordance with sub-paragraph (3),
the difference between those amounts is to be treated under that Act as unpaid duty.
5
If a person entitled to a repayment of more than £10 under this paragraph has not received the repayment within the period of 90 days beginning with the go-live date —
a
the person may give notice to HMRC of that fact,
b
the Commissioners must pay interest to the person on the amount of the repayment for the period from the end of that 90-day period until the day on which the repayment is made, and
c
any such interest accrues at the rate under section 197 of FA 1996 (rates of interest) that is applicable for Parts 2 and 3 of Schedule 3 to FA 2001 (excise duty payment by Commissioners in case of error or delay).
60
1
If a licence granted or to be granted under section 21 of BGDA 1981 would expire within the period of 30 days ending with the go-live date, a person may apply —
a
for the licence to be treated as extended for the necessary period, or
b
for a new amusement machine licence to be treated as granted in its place under Schedule 4 to that Act for the necessary period.
2
The necessary period is the period from expiry of the licence until immediately before the go-live date.
3
An application under this paragraph may be made before or after the licence is granted but, if made after the licence is granted, it must be made before the day on which the licence is to expire.
4
The application must be made to HMRC in such form and manner as HMRC may require.
5
HMRC must grant the application once it has received payment of an amount of duty payable on the licence (or new licence) in respect of the necessary period.
6
The amount of duty payable in respect of the necessary period is to be the sum of the amounts payable for each day in that period, each such amount being 1/365th of the duty payable for a licence of 12 months for a machine of the relevant category.
7
Schedule 4 to BGDA 1981 and any regulations made under that Schedule apply (subject to any modifications specified by the Commissioners in a notice published for the purposes of this paragraph) to an amount of duty payable in accordance with this paragraph as to an amount of duty payable in accordance with section 23 of that Act.
8
Nothing in this paragraph affects the operation of that Act with respect to the provision of amusement machines in the necessary period in a case where no application is made under this paragraph or an application is not granted.
9
But if a default licence is granted under Schedule 4A to BGDA 1981 for the necessary period, the amount of duty that may be assessed under paragraph 4 of that Schedule is limited to the amount that would have been payable if an application had been made for a licence under this paragraph.
61
1
This paragraph applies to licences to be granted under section 21 of BGDA 1981 on or after 2 January 2013 (a “final month licence”).
2
Section 21(3) of that Act has effect as if —
a
the requirement to grant amusement machine licences for a period of one or more whole months were omitted, and
b
the power to grant amusement machine licences for a period not exceeding 12 months were a power to grant such licences for a period ending with a day that is no later than the day before the go-live date.
3
The requirement in section 21(4) of that Act to grant special amusement machine licences for a period of 12 months has effect in relation to a final month licence as if it were a requirement to grant a licence for the period beginning with the date of grant and ending with the day before the go-live date.
4
The amount of duty payable on a final month licence is to be calculated in the manner described in paragraph 60(6).
5
The Commissioners may by notice direct that Schedules 4 and 4A to BGDA 1981 and any regulations made under those Schedules are to apply to a final month licence with such modifications as may be specified in the notice.
6
A notice under sub-paragraph (5) must be published by the Commissioners.
62
1
The enactments repealed by this Part of this Schedule continue to have effect on and after the go-live date in relation to the provision of amusement machines before that date.
2
Enactments continuing to have effect by virtue of sub-paragraph (1) are to be read with any necessary modifications.
3
Without prejudice to the generality of sub-paragraph (2), paragraph 4 of Schedule 4A to BGDA 1981 (assessment of amount equivalent to duty) is to be read as if the reference in sub-paragraph (3) to the due date were a reference to the day before the go-live date.
PART 3
VAT exemption
Amendment of VATA 1994
63
For section 23 of VATA 1994 substitute —
Value of supplies involving relevant machine games
23
1
If a person plays a relevant machine game, then for the purposes of VAT the amount paid by the person is to be treated as consideration for a supply of services to that person.
2
“Relevant machine game” is defined in section 23A.
3
The value to be taken as the value of supplies made by a person (“the supplier”) in the circumstances mentioned in subsection (1) in any period is to be determined as if the consideration for the supplies were reduced by an amount equal to X.
4
X is the amount (if any) paid out in that period by way of winnings in respect of relevant machine games made available by the supplier (whether the games were played in the same period or an earlier one).
5
X does not include any winnings paid out to the supplier or a person acting on the supplier’s behalf.
6
Inserting a token into a machine on which a relevant machine game is played is to be treated for the purposes of subsection (1) as the payment of an amount equal to that for which the token can be obtained.
7
Providing a specified kind of token by way of winnings is to be treated for the purposes of subsection (4) as the payment out of an amount by way of winnings equal to the value of the token.
8
A specified kind of token is —
a
a token that can be inserted into the same machine to enable games to be played on the machine, or
b
a token that is not of such a kind but can be exchanged for money.
9
The value of a specified kind of token is —
a
for a token within subsection (8)(a), an amount equal to that for which the token can be obtained, and
b
for a token within subsection (8)(b), an amount equal to that for which the token can be exchanged.
10
If it is not reasonably practicable to attribute payments and winnings to relevant machine games or to apportion them between relevant machine games and other games or other activities, any attribution or apportionment is to be done on a just and reasonable basis.
11
For the purposes of this section, a person plays a game if the person participates in the game —
a
whether or not there are other participants in the game, and
b
whether or not a computer generates images or data taken to represent the actions of other participants in the game.
Meaning of “relevant machine game”
23A
1
A “relevant machine game” is a game (whether of skill or chance or both) that —
a
is played on a machine for a prize, and
b
is not excluded by subsection (2).
2
A game is excluded by this subsection if —
a
takings and payouts in respect of it are taken into account in determining any charge to machine games duty,
b
it involves betting on future real events,
c
bingo duty is charged on the playing of it or would be so charged but for paragraphs 1 to 5 of Schedule 3 to the Betting and Gaming Duties Act 1981 (exemptions from bingo duty),
d
lottery duty is charged on the taking of a ticket or chance in it or would be so charged but for an express exception,
e
it is a real game of chance and playing it amounts to dutiable gaming for the purposes of section 10 of the Finance Act 1997 or would do so but for subsection (3), (3B) or (4) of that section, or
f
playing it amounts to remote gaming within the meaning of section 26A of the Betting and Gaming Duties Act 1981 (remote gaming duty: interpretation).
3
In this section —
“game” does not include a sport;
“machine” means any apparatus that uses or applies mechanical power, electrical power or both;
“prize”, in relation to a game, does not include the opportunity to play the game again;
“real game of chance” means a game of chance (within the meaning of the Betting and Gaming Duties Act 1981) that is non-virtual.
4
The Treasury may by order amend this section.
64
1
In Part 2 of Schedule 9 to that Act (exemptions: the groups), the provisions of Group 4 are amended as follows.
2
After Item 1 insert —
1A
The provision of any facilities for the playing of dutiable machine games (as defined in Part 1 of Schedule 24 to the Finance Act 2012) but only to the extent that —
a
the facilities are used to play such games, and
b
the takings and payouts in respect of those games are taken into account in determining the charge to machine games duty.
3
In Note (1) —
a
for “Item 1 does” substitute “Items 1 and 1A do”, and
b
omit paragraph (d) and the word “or” immediately preceding that paragraph.
4
After Note (1) insert —
1A
Item 1 does not apply to the provision of facilities to the extent that the facilities are used to play a relevant machine game (as defined in section 23A).
5
Accordingly —
a
in Part 2 of Schedule 9, in the heading of Group 4, after “GAMING” insert “, DUTIABLE MACHINE GAMES”, and
b
in Part 1 of that Schedule, in the Index, for “Betting, gaming and lotteries” substitute “Betting, gaming, dutiable machine games and lotteries”.
65
1
Paragraph 9 of Schedule 11 to that Act (administration, collection and enforcement) is amended as follows.
2
For paragraph (a) substitute —
a
to open any machine on which relevant machine games (as defined in section 23A) are capable of being played; and
.
3
In paragraph (b), for “subsection (2) of that section” substitute “section 23(3)”.
4
Accordingly, in the heading immediately before paragraph 9, for “ gaming machines ” substitute “ machines on which relevant machine games are played ”.
PART 4
Miscellaneous
Application
66
1
The provisions of this Schedule have effect as follows.
2
Part 1 has effect in relation to the playing of machine games on or after 1 February 2013 (and Schedules 55 and 56 to FA 2009, as amended by Part 1 of this Schedule, are taken to have come into force for the purposes of machine games duty on that date).
3
Part 2 has effect in relation to the provision of amusement machines on or after 1 February 2013.
4
Part 3 has effect in relation to supplies made on or after that date.
5
A reference in this Schedule to the “go-live date” is to 1 February 2013.
67
1
The Treasury may by regulations make transitional or saving provision in connection with the removal of amusement machine licence duty and the introduction of machine games duty.
2
The power in sub-paragraph (1) is without prejudice to —
a
the provision made by Part 2 of this Schedule, and
b
any power in this Schedule apart from this paragraph to make transitional or saving provision in connection with the matters mentioned in sub-paragraph (1).
3
Regulations under this paragraph are to be made by statutory instrument.
4
A statutory instrument containing regulations under this paragraph is subject to annulment in pursuance of a resolution of the House of Commons.
SCHEDULE 25
Remote gambling: double taxation relief
Section 194
Unilateral relief
1
BGDA 1981 is amended as follows.
2
After section 5D insert —
Double taxation relief
5E
1
This section applies if a person (“P”) is liable to pay a qualifying foreign tax in respect of bets in respect of which P is also liable to pay general betting duty under a provision of sections 2 to 4 or section 5AB (“the relevant provision”).
2
Bets in respect of which P is liable to pay both general betting duty under the relevant provision and the qualifying foreign tax are referred to as “eligible bets”.
3
Credit may be allowed for all or part of the qualifying foreign tax paid by P.
4
Whether any credit is allowed is determined in accordance with Schedule A1.
5
If credit is allowed for an accounting period, P is entitled to claim a repayment of so much of the duty actually paid as is equal to the amount of credit allowed.
6
Total repayments to P for that accounting period in respect of bets of the applicable class (taking into account all qualifying foreign taxes) must not, in aggregate, exceed the duty actually paid.
7
“The applicable class” means the class of bets to which the relevant provision applies.
8
“The duty actually paid” means the general betting duty paid by P for that accounting period in respect of bets of the applicable class.
9
A bet does not count as an “eligible bet” if it was made by or on behalf of P.
3
After section 8 insert —
Double taxation relief
8ZA
1
This section applies if a person (“P”) is liable to pay a qualifying foreign tax in respect of bets in respect of which P is also liable to pay pool betting duty.
2
Bets in respect of which P is liable to pay both pool betting duty and the qualifying foreign tax are referred to as “eligible bets”.
3
Credit may be allowed for all or part of the qualifying foreign tax paid by P.
4
Whether any credit is allowed is determined in accordance with Schedule A1.
5
If credit is allowed for an accounting period, P is entitled to claim a repayment of so much of the duty actually paid as is equal to the amount of credit allowed.
6
Total repayments to P for that accounting period (taking into account all qualifying foreign taxes) must not, in aggregate, exceed the duty actually paid.
7
“The duty actually paid” means the pool betting duty paid by P for that accounting period.
8
A bet does not count as an “eligible bet” if it was made by or on behalf of P.
4
After section 10 insert —
Definition of qualifying foreign tax
10A
1
For the purposes of general betting duty or pool betting duty, a “qualifying foreign tax” is a foreign tax specified by the Commissioners in relation to that duty (“the relevant duty”).
2
“Specified” means specified in a notice published by the Commissioners, as revised or replaced from time to time.
3
The Commissioners must specify a foreign tax under this section if they are satisfied that —
a
it is a gambling tax,
b
the activities on which it is charged include betting,
c
the bets in respect of which it is charged include bets in respect of which the relevant duty is also charged, and
d
the charge in respect of such bets is based on betting by persons in or deemed to be in the country or territory where the tax is imposed.
4
The following factors indicate that a tax is a gambling tax —
a
that it is charged on activities involving betting or gaming (rather than activities generally), and
b
that it goes towards meeting general public expenditure (rather than being ring-fenced for a particular purpose).
5
A notice specifying a foreign tax may provide that the tax is to be treated as having been specified with effect from a date that is earlier than the date of the notice.
5
After section 26I insert —
Double taxation relief
26IA
1
This section applies if —
a
P is liable to pay remote gaming duty on the provision of facilities for remote gaming, and
b
P is also liable to pay a qualifying foreign tax in respect of remote gaming using those facilities.
2
The remote gaming using those facilities in respect of which the qualifying foreign tax is charged is referred to as “eligible gaming”.
3
Credit may be allowed for all or part of the qualifying foreign tax paid by P.
4
Whether any credit is allowed is determined in accordance with Schedule 4B.
5
If credit is allowed for an accounting period, P is entitled to claim a repayment of so much of the duty actually paid as is equal to the amount of credit allowed.
6
Total repayments to P for that period (taking into account all qualifying foreign taxes) must not, in aggregate, exceed the duty actually paid.
7
“The duty actually paid” means the remote gaming duty paid by P for that accounting period.
8
Remote gaming does not count as “eligible gaming” if one of the participants in the game in question is P or someone acting on P’s behalf.
Definition of qualifying foreign tax
26IB
1
For the purposes of remote gaming duty, a “qualifying foreign tax” is a foreign tax specified by the Commissioners in relation to remote gaming duty.
2
“Specified” means specified in a notice published by the Commissioners, as revised or replaced from time to time.
3
The Commissioners must specify a foreign tax under this section if they are satisfied that —
a
it is a gambling tax,
b
the activities on which it is charged include remote gaming,
c
the remote gaming on which it is charged includes remote gaming using facilities in respect of which remote gaming duty is also charged, and
d
the charge is based on remote gaming by persons in or deemed to be in the country or territory where the tax is imposed.
4
The following factors indicate that a tax is a gambling tax —
a
that it is charged on activities involving betting or gaming (rather than activities generally), and
b
that it goes towards meeting general public expenditure (rather than being ring-fenced for a particular purpose).
5
A notice specifying a foreign tax may provide that the tax is to be treated as having been specified with effect from a date that is earlier than the date of the notice.
Regulations about claims for double taxation relief
26IC
1
The Commissioners may make regulations about —
a
claims for repayment under section 26IA, and
b
the making of repayments under that section.
2
Regulations under this section may in particular include provision about —
a
the time within which claims may be made,
b
the form, content and delivery of claims,
c
the evidence required to satisfy the Commissioners of the validity of claims, and
d
the investigation and processing of claims.
6
In section 33 (interpretation) —
a
in subsection (1), after the definition of “the Commissioners” insert —
“foreign tax” means a tax, including any sort of duty or levy, imposed in a country or territory outside the United Kingdom (see also subsection (1B));
, and
b
after subsection (1A) insert —
1B
A reference in this Act to a foreign tax does not include any penalty, interest, surcharge or other such cost arising in connection with the tax (whether or not recoverable as if it were that tax).
7
Before Schedule 1 insert —
SCHEDULE A1
Betting duties: double taxation relief
Introduction
1
This Schedule sets out the rules for determining whether credit is allowed under section 5E or 8ZA for qualifying foreign tax paid by P.
Definitions
2
1
This Schedule is to be read as follows.
2
“The applicable class” —
a
in the case of section 5E, has the meaning given in that section, and
b
in the case of section 8ZA, means dutiable pool bets.
3
A “reconciliation period” is —
a
if P has monthly accounting periods, a period consisting of 12 consecutive accounting periods,
b
if P has quarterly accounting periods, a period consisting of 4 consecutive accounting periods, and
c
if P has any other length of accounting period, a period consisting of such number of consecutive accounting periods as would produce a period as near as possible to 365 days.
4
In relation to an accounting period, a reference to “the reconciliation period” is to the reconciliation period in which that accounting period falls.
Credit allowed
3
1
To determine whether credit is allowed for an accounting period —
a
calculate the notional UK liability and the notional foreign liability for the accounting period, and
b
compare the two figures.
2
No credit is allowed if either figure is nil or both figures are nil.
3
Subject to that, credit is allowed of an amount equal to the smaller of the two figures (or, if they are the same, of an amount equal to that figure).
Notional UK liability
4
The notional UK liability for an accounting period is calculated as follows —
Step 1
If the applicable class is a class to which a provision of sections 2 to 4 applies, calculate P’s net stake receipts for the period in accordance with section 5 but by reference to eligible bets (rather than bets of the applicable class).
If the applicable class is the class to which section 5AB applies, calculate the commission charges in accordance with that section relating to eligible bets determined in the period (rather than bets to which that section applies).
If the applicable class is dutiable pool bets, calculate P’s net pool betting receipts for the period in accordance with section 7A but by reference to eligible bets (rather than dutiable pool bets).
In calculating P’s net stake receipts or net pool betting receipts for the purposes of this Step, do not carry forward to the period any losses in respect of eligible bets that arose in an accounting period before the start of the reconciliation period.
Step 2
If the amount calculated under Step 1 is nil or a negative amount, the notional UK liability for the period is nil.
Otherwise, apply the appropriate rate to the amount calculated under Step 1. The result is the notional UK liability for the period.
“The appropriate rate” is the percentage specified in whichever of section 2(3), 3(3)(a), 3(3)(b), 4(3), 5AB(4) or 7(2) applies to the applicable class, as in force for the accounting period in question.
Notional foreign liability
5
The notional foreign liability for an accounting period is calculated as follows —
Step 1
Calculate the amount of qualifying foreign tax that would be payable by P for the accounting period if the tax were charged solely in respect of eligible bets and accounted for by reference to periods corresponding to P’s accounting periods.
Any apportionment needed for this calculation is to be done on a just and reasonable basis.
If the law under which the qualifying foreign tax is imposed provides for losses to be carried forward, do not carry forward to the period any losses (in respect of eligible bets) that arose before the start of the reconciliation period.
Step 2
If the amount calculated under Step 1 is nil, the notional foreign liability for the period is nil.
Otherwise, calculate the sterling equivalent of the amount calculated under Step 1. The result is the notional foreign liability for the period.
The sterling equivalent is to be calculated using the London closing exchange rate for the last day of the accounting period.
Clawback
6
1
This paragraph applies if in respect of the applicable class of bets —
a
P receives a repayment under section 5E or 8ZA for one or more accounting periods in a reconciliation period, and
b
the amount calculated under Step 1 in paragraph 4 for the final accounting period in that reconciliation period is a negative amount.
2
P is liable to repay all or part of the repayment or repayments received.
3
The amount that P is liable to repay is the smallest of —
a
the loss multiplied by the rate at which the qualifying foreign tax is charged in respect of eligible bets,
b
the loss multiplied by the appropriate rate (as defined in paragraph 4) for the applicable class of bets, and
c
the repayment (or the sum of the repayments) made to P for the reconciliation period.
4
“The loss” means the negative amount mentioned in sub-paragraph (1)(b) but expressed as a positive number.
5
If there is more than one rate at which the qualifying foreign tax is charged in respect of eligible bets, each rate is to be applied to an appropriate portion of the loss in order to arrive at the amount under sub-paragraph (3)(a).
6
If all or part of the qualifying foreign tax is calculated other than on a net receipts basis, sub-paragraph (3) has effect as if paragraph (a) were omitted.
7
Any amount due from P under this paragraph is to be treated as if it were an amount of unpaid general betting duty or, as the case may be, pool betting duty.
Breach of return obligations
7
The Commissioners are not required to make a repayment under section 5E or 8ZA if P is in breach of any obligation to deliver a return with respect to —
a
general betting duty,
b
pool betting duty,
c
bingo duty,
d
remote gaming duty,
e
gaming duty, or
f
lottery duty.
Reduction etc in foreign tax paid
8
1
Sub-paragraphs (2) to (4) apply if any of the following events take place —
a
the way in which a qualifying foreign tax is charged or calculated is changed retrospectively,
b
a tax authority waives or refunds all or part of an amount of qualifying foreign tax due from P, or
c
as a result of being liable to pay an amount of qualifying foreign tax, P or a connected person is entitled to any kind of tax deduction or relief calculated by reference to the amount of qualifying foreign tax.
2
P must notify the Commissioners of the event on becoming aware of it.
3
If the event is a retrospective change in the way in which the qualifying foreign tax is charged or calculated, the amount for which credit is allowed under section 5E or 8ZA is to be recalculated in accordance with this Schedule.
4
In any other case, the amount for which credit is allowed under section 5E or 8ZA is to be reduced by a just and reasonable sum to reflect the amount of tax waived or refunded or the deduction or relief given.
5
If it transpires (on account of this paragraph or otherwise) that a repayment or part of a repayment under section 5E or 8ZA should not have been made, P is liable for the amount that should not have been repaid, as if it were unpaid general betting duty or, as the case may be, pool betting duty.
6
Section 1122 of the Corporation Tax Act 2010 (connected persons) applies for the purposes of sub-paragraph (1)(c).
8
1
Schedule 1 (betting duties) is amended as follows.
2
In paragraph 2, after sub-paragraph (4) insert —
5
Regulations under this paragraph may also in particular include provision about claims for repayment under section 5E and about the making of any such repayment, including provision about —
a
the time within which claims may be made,
b
the form, content and delivery of claims,
c
the evidence required to satisfy the Commissioners of the validity of claims, and
d
the investigation and processing of claims.
3
In paragraph 2A, after sub-paragraph (3) insert —
4
Regulations under sub-paragraph (2) may also include provision about claims for repayment under section 8ZA and about the making of any such repayment, including provision about anything mentioned in paragraph 2(5)(a) to (d).
9
After Schedule 4A insert —
SCHEDULE 4B
Remote gaming duty: double taxation relief
Introduction
1
This Schedule sets out the rules for determining whether credit is allowed under section 26IA for qualifying foreign tax paid by P.
Reconciliation periods
2
1
For the purposes of this Schedule, a “reconciliation period” is —
a
if P has quarterly accounting periods, a period consisting of 4 consecutive accounting periods, and
b
if P has any other length of accounting period, a period consisting of such number of consecutive accounting periods as would produce a period as near as possible to 365 days.
2
In relation to an accounting period, a reference to “the reconciliation period” is to the reconciliation period in which that accounting period falls.
Credit allowed
3
1
To determine whether credit is allowed for an accounting period —
a
calculate the notional UK liability and the notional foreign liability for the accounting period, and
b
compare the two figures.
2
No credit is allowed if either figure is nil or both figures are nil.
3
Subject to that, credit is allowed of an amount equal to the smaller of the two figures (or, if they are the same, of an amount equal to that figure).
Notional UK liability
4
The notional UK liability for an accounting period is calculated as follows —
Step 1
Calculate P’s remote gaming profits for the period in accordance with section 26C(2) but by reference to the use of the facilities provided by P for eligible gaming (rather than remote gaming generally).
In calculating P’s remote gaming profits for the purposes of this Step, do not carry forward to the period any losses (in respect of the use of the facilities for eligible gaming) that arose in an accounting period before the start of the reconciliation period.
Step 2
If the amount calculated under Step 1 is nil or a negative amount, the notional UK liability for the period is nil.
Otherwise, apply the appropriate rate to the amount calculated under Step 1. The result is the notional UK liability for the period.
“The appropriate rate” is the percentage specified in section 26C(1) as in force for the accounting period in question.
Notional foreign liability
5
The notional foreign liability for an accounting period is calculated as follows —
Step 1
Calculate the amount of qualifying foreign tax that would be payable by P for the accounting period if the tax were charged in respect of eligible gaming and were accounted for by reference to periods corresponding to P’s accounting periods.
Any apportionment needed for this calculation is to be done on a just and reasonable basis.
If the law under which the qualifying foreign tax is imposed provides for losses to be carried forward, do not carry forward to the period any losses (in respect of eligible gaming) that arose before the start of the reconciliation period.
Step 2
If the amount calculated under Step 1 is nil, the notional foreign liability for the period is nil.
Otherwise, calculate the sterling equivalent of the amount calculated under Step 1. The result is the notional foreign liability for the period.
The sterling equivalent is to be calculated using the London closing exchange rate for the last day of the accounting period.
Clawback
6
1
This paragraph applies if in respect of eligible gaming —
a
P receives a repayment under section 26IA for one or more accounting periods in a reconciliation period, and
b
the amount calculated under Step 1 in paragraph 4 for the final accounting period in that reconciliation period is a negative amount.
2
P is liable to repay all or part of the repayment or repayments received.
3
The amount that P is liable to repay is the smallest of —
a
the loss multiplied by the rate at which the qualifying foreign tax is charged in respect of eligible gaming,
b
the loss multiplied by the appropriate rate (as defined in paragraph 4), and
c
the repayment (or the sum of the repayments) made to P for the reconciliation period.
4
“The loss” means the negative amount mentioned in sub-paragraph (1)(b) but expressed as a positive number.
5
If there is more than one rate at which the qualifying foreign tax is charged in respect of eligible gaming, each rate is to be applied to an appropriate portion of the loss in order to arrive at the amount under sub-paragraph (3)(a).
6
If all or part of the qualifying foreign tax is calculated other than on a net receipts basis, sub-paragraph (3) has effect as if paragraph (a) were omitted.
7
Any amount due from P under this paragraph is to be treated as if it were an amount of unpaid remote gaming duty.
Breach of return obligations
7
The Commissioners are not required to make a repayment under section 26IA if P is in breach of any obligation to deliver a return with respect to —
a
general betting duty,
b
pool betting duty,
c
bingo duty,
d
remote gaming duty,
e
gaming duty, or
f
lottery duty.
Reduction etc in foreign tax paid
8
1
Sub-paragraphs (2) to (4) apply if any of the following events take place —
a
the way in which a qualifying foreign tax is charged or calculated is changed retrospectively,
b
a tax authority waives or refunds all or part of an amount of qualifying foreign tax due from P, or
c
as a result of being liable to pay an amount of qualifying foreign tax, P or a connected person is entitled to any kind of tax deduction or relief calculated by reference to the amount of qualifying foreign tax.
2
P must notify the Commissioners of the event on becoming aware of it.
3
If the event is a retrospective change in the way in which the qualifying foreign tax is charged or calculated, the amount for which credit is allowed under section 26IA is to be recalculated in accordance with this Schedule.
4
In any other case, the amount for which credit is allowed under that section is to be reduced by a just and reasonable sum to reflect the amount of tax waived or refunded or the deduction or relief given.
5
If it transpires (on account of this paragraph or otherwise) that a repayment or part of a repayment under section 26IA should not have been made, P is liable for the amount that should not have been repaid, as if it were unpaid remote gaming duty.
6
Section 1122 of the Corporation Tax Act 2010 (connected persons) applies for the purposes of sub-paragraph (1)(c).
Consequential amendments
10
In section 13A(2) of FA 1994 (meaning of “relevant decision”), after paragraph (g) insert —
ga
any decision by HMRC as to whether or not any person is entitled to any repayment under section 5E, 8ZA or 26IA of the Betting and Gaming Duties Act 1981 (double taxation relief), or the amount of the repayment to which any person is so entitled;
.
11
1
The Table in paragraph 1 of Schedule 41 to FA 2008 (penalties: failure to notify and certain VAT and excise wrongdoing) is amended as follows.
2
In the second column of the entry for general betting duty, for “paragraph 4(1) to (3) of Schedule 1 to BGDA 1981” substitute “paragraph 8(2) of Schedule A1 to BGDA 1981 (obligation to notify reduction etc in qualifying foreign tax) or paragraph 4(1) to (3) of Schedule 1 to that Act”.
3
In the second column of the entry for pool betting duty, for “paragraphs 4(2) and 5(1) of Schedule 1 to BGDA 1981” substitute “paragraph 8(2) of Schedule A1 to BGDA 1981 (obligation to notify reduction etc in qualifying foreign tax) or paragraphs 4(2) and 5(1) of Schedule 1 to that Act”.
4
In the second column of the entry for remote gaming duty, for “to register under regulations under section 26J of BGDA 1981” substitute “to notify under paragraph 8(2) of Schedule 4B to BGDA 1981 (reduction etc in qualifying foreign tax) and obligation to register under regulations under section 26J of that Act”.
Commencement
12
The amendments made by this Schedule have effect in relation to accounting periods ending on or after 1 April 2012 (and, accordingly, the first reconciliation period begins with the first accounting period in relation to which the amendments have effect).
SCHEDULE 26
Categorisation of supplies
Section 196
PART 1
Zero-rated supplies
Introductory
1
Part 2 of Schedule 8 of VATA 1994 (zero-rating) is amended as follows.
Food
2
1
Group 1 (food) is amended as follows.
2
After excepted item 4 insert —
4A
Sports drinks that are advertised or marketed as products designed to enhance physical performance, accelerate recovery after exercise or build bulk, and other similar drinks, including (in either case) syrups, concentrates, essences, powders, crystals or other products for the preparation of such drinks.
3
In Note (3), omit the words from “and for the purposes of paragraph (b) above” to the end.
4
After that Note insert —
3A
For the purposes of Note (3), in the case of any supplier, the premises on which food is supplied include any area set aside for the consumption of food by that supplier’s customers, whether or not the area may also be used by the customers of other suppliers.
3B
“Hot food” means food which (or any part of which) is hot at the time it is provided to the customer and —
a
has been heated for the purposes of enabling it to be consumed hot,
b
has been heated to order,
c
has been kept hot after being heated,
d
is provided to a customer in packaging that retains heat (whether or not the packaging was primarily designed for that purpose) or in any other packaging that is specifically designed for hot food, or
e
is advertised or marketed in a way that indicates that it is supplied hot.
3C
For the purposes of Note (3B) —
a
something is “hot” if it is at a temperature above the ambient air temperature, and
b
something is “kept hot” after being heated if the supplier stores it in an environment which provides, applies or retains heat, or takes other steps to ensure it remains hot or to slow down the natural cooling process.
3D
In Notes (3B) and (3C), references to food being heated include references to it being cooked or reheated.
Protected buildings
3
1
Group 6 (protected buildings) is amended as follows.
2
Omit items 2 and 3 (approved alterations and building materials).
3
In Note (3), for “(12) to (14) and (22) to (24)” substitute “and (12) to (14)”.
4
For Note (4) substitute —
4
For the purposes of item 1, a protected building is not to be regarded as substantially reconstructed unless, when the reconstruction is completed, the reconstructed building incorporates no more of the original building (that is to say, the building as it was before the reconstruction began) than the external walls, together with other external features of architectural or historic interest.
5
In Note (5), in paragraphs (a), (b) and (c) omit “or other supply”.
6
Omit Notes (6) to (11).
Caravans
4
1
Group 9 (caravans and houseboats) is amended as follows.
2
For item 1 substitute —
1
Caravans which exceed the limits of size of a trailer for the time being permitted to be towed on roads by a motor vehicle having a maximum gross weight of 3,500 kilogrammes and which —
a
were manufactured to standard BS 3632:2005 approved by the British Standards Institution, or
b
are second hand, were manufactured to a previous version of standard BS 3632 approved by that Institution and were occupied before 6 April 2013.
3
In item 3 for “5(3)” substitute “5(4)”.
4
In the Note for “item 3” substitute “item 4”.
PART 2
Exempt supplies
Land: self storage and facilities to supply hairdressing services
5
1
In Part 2 of Schedule 9 to VATA 1994 (exemptions), Group 1 (land) is amended as follows.
2
In item 1, after paragraph (k) insert —
ka
the grant of facilities for the self storage of goods;
.
3
In that item, omit “and” at the end of paragraph (m) and after that paragraph insert —
ma
the grant of facilities to a person who uses the facilities wholly or mainly to supply hairdressing services; and
.
4
In that item, in paragraph (n), for “(m)” substitute “(ma)”.
5
After Note (15) insert —
15A
In paragraph (ka) —
“facilities for the self storage of goods” means the use of a relevant structure for the storage of goods by the person (or persons) to whom the grant of facilities is made, and
“goods” does not include live animals.
15B
For the purposes of Note (15A), use by a person with the permission of the person (or any of the persons) to whom the grant of facilities is made counts as use by the person (or persons) to whom that grant is made.
15C
A grant of facilities for the self storage of goods does not fall within paragraph (ka) if —
a
the person making the grant (“P”) —
i
is doing so in circumstances where the relevant structure used is, or forms part of, a relevant capital item, and
ii
is connected with any person who uses that relevant structure for the self storage of goods,
b
the grant is made to a charity which uses the relevant structure solely otherwise than in the course of a business, or
c
in a case where the relevant structure is part of a building, its use for the storage of goods by the person (or persons) to whom the grant is made is ancillary to other use of the building by that person (or those persons).
15D
In Notes (15A) and (15C) “relevant structure” means the whole or part of —
a
a container or other structure that is fully enclosed, or
b
a unit or building.
15E
In Note (15C)(a)(i) “relevant capital item” means a capital item which —
a
is subject to adjustments of input tax deduction by P under regulations made under section 26(3), and
b
has not yet reached the end of its prescribed period of adjustment.
6
After Note (16) insert —
17
Paragraph (ma) does not apply to a grant of facilities which provides for the exclusive use, by the person to whom the grant is made, of a whole building, a whole floor, a separate room or a clearly defined area, unless the person making the grant or a person connected with that person provides or makes available (directly or indirectly) services related to hairdressing for use by the person to whom the grant is made.
18
For the purposes of Note (17) —
a
“services related to hairdressing” means the services of a hairdresser’s assistant or cashier, the booking of appointments, the laundering of towels, the cleaning of the facilities subject to the grant, the making of refreshments and other similar services typically used in connection with hairdressing, but does not include the provision of utilities or the cleaning of shared areas in a building, and
b
it does not matter if the services related to hairdressing are shared with other persons.
19
For the purposes of Notes (15C) and (17) any question whether a person is connected with any other person is to be determined in accordance with section 1122 of the Corporation Tax Act 2010 (connected person).
PART 3
Supplies chargeable at reduced rate
6
1
Schedule 7A to VATA 1994 (charge at reduced rate) is amended as follows.
2
In Part 1 (index to reduced-rate supplies of goods and services), at the appropriate place insert —
Caravans Group 12
.
3
In Part 2 (the groups), at the end insert —
GROUP 12
CARAVANS
Item No
1
Supplies of caravans which exceed the limits of size of a trailer for the time being permitted to be towed on roads by a motor vehicle having a maximum gross weight of 3,500 kilogrammes.
2
The supply of such services as are described in paragraph 1(1) or 5(4) of Schedule 4 in respect of a caravan within item 1.
NOTE:
This Group does not include —
removable contents other than goods of a kind mentioned in item 4 of Group 5 of Schedule 8, or
the supply of accommodation in a caravan.
PART 4
Commencement and transitional provision
7
1
Subject to sub-paragraphs (2) and (3), the amendments made by this Schedule come into force on 1 October 2012.
2
Paragraphs 4 and 6 come into force on 6 April 2013.
3
Paragraph 3(2) to (6) comes into force, in relation to relevant supplies, on 1 October 2015.
4
A supply is “relevant” if it is —
a
a supply of any services, other than excluded services, which is made —
i
in the course of an approved alteration of a protected building, and
ii
pursuant to a written contract entered into, or a relevant consent applied for, before 21 March 2012, or
b
a supply of building materials which is made —
i
to a person to whom the supplier is supplying services within paragraph (a) which include the incorporation of the materials into the building (or its site) in question, and
ii
pursuant to a written contract entered into, or a relevant consent applied for, before 21 March 2012.
5
In relation to supplies made on or after 1 October 2012 but before 1 October 2015, Group 6 has effect as if, for the purposes of item 1 of that Group, a protected building were also regarded as substantially reconstructed if sub-paragraph (6) or (7) applies.
6
This sub-paragraph applies if at least three-fifths of the works carried out to effect the reconstruction (measured by reference to cost) are of such a nature that the supply of services (other than excluded services), materials and other items to carry out the works would, if supplied by a taxable person, be relevant supplies.
7
This sub-paragraph applies if —
a
at least 10% (measured by reference to cost) of the reconstruction of the protected building was completed before 21 March 2012, and
b
at least three-fifths of the works carried out to effect the reconstruction (measured by reference to cost) are of such a nature that the supply of services (other than excluded services), materials and other items to carry out the works would, if supplied by a taxable person, be relevant supplies but for the requirement for a written contract to have been entered into or relevant consent to have been applied for before that date.
8
For the purposes of sub-paragraph (4), works carried out that are not within the scope of the written contract entered into, or the relevant consent applied for, as it stood immediately before 21 March 2012, are not a supply made pursuant to that contract or relevant consent.
9
In this paragraph —
“excluded services” means the services of an architect, surveyor or other person acting as consultant or in a supervisory capacity;
“Group 6” means Group 6 of Part 2 of Schedule 8 to VATA 1994 (protected buildings);
“relevant consent” means —
in the case of an ecclesiastical building to which section 60 of the Planning (Listed Buildings and Conservation Areas) Act 1990 applies, consent for the approved alterations by a competent body with the authority to approve alterations to such buildings, or
in any other case, consent under any provision of —
Part 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990,
Part 1 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997,
Part 5 of the Planning (Northern Ireland) Order 1991,
Part 1 of the Ancient Monuments and Archaeological Areas Act 1979, or
Part 2 of the Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995.
10
The Notes of Group 6 apply in relation to this paragraph as they apply in relation to that Group, except that in applying Notes (9), (10) and (11), references to item 2 are to be read as references to sub-paragraph (4) of this paragraph.
SCHEDULE 27
Anti-forestalling charge to VAT
Section 196
PART 1
Anti-forestalling charge to VAT
Introductory
1
In this Schedule —
“date of the VAT change” means 1 October 2012;
“pre-change supply” means a supply of a description specified in paragraph 3 which —
is treated as taking place before the date of the VAT change, and
if it had been treated as taking place on that date, would have been charged to VAT at the standard rate as a result of the amendments made by Schedule 26.
The charge
2
1
There is an anti-forestalling charge to value added tax on any pre-change supply which —
a
is treated as taking place on or after 21 March 2012, and
b
is a supply linked to the post-change period (see paragraph 4).
2
“Chargeable pre-change supply” means a supply to which sub-paragraph (1) applies.
3
An anti-forestalling charge to value added tax under this Schedule is to be treated for all purposes as if it were value added tax charged in accordance with VATA 1994.
The supplies
3
1
The descriptions of supplies are —
a
the supply, in the course of an approved alteration of a protected building, of any services, other than the services of an architect, surveyor or any person acting as consultant or in a supervisory capacity,
b
the supply of building materials to a person to whom the supplier is supplying services within paragraph (a) which include the incorporation of the materials into the building (or its site),
c
the grant of facilities for the self storage of goods, or
d
the grant of a right to receive a supply within paragraph (c).
2
The Notes to Group 6 in Schedule 8 to VATA 1994 have effect for the purposes of sub-paragraph (1)(a) and (b) as they had effect for the purposes of items 1 to 3 of that Group on 21 March 2012.
3
For the purposes of this Schedule a right to receive a supply includes —
a
any option to receive that supply, and
b
any interest deriving from such an option.
Supplies linked to the post-change period
4
1
A supply of services within paragraph 3(1)(a) or (c) is linked to the post-change period if, and to the extent that, the services are carried out or provided on or after the date of the VAT change.
2
A supply of goods within paragraph 3(1)(b) is linked to the post-change period if, and to the extent that, the goods are incorporated into the building concerned (or its site) on or after that date.
3
A supply within paragraph 3(1)(d) is linked to the post-change period if, and to the extent that, the services to which the grant relates are carried out or provided on or after that date.
Power to modify this Schedule
5
1
The Treasury may by order modify this Schedule for the purposes of preventing an anti-forestalling charge from arising, in the circumstances specified in the order, in relation to any description of supplies specified in the order.
2
An order under this paragraph may contain provision having retrospective effect.
3
An order under this paragraph is to be made by statutory instrument.
4
A statutory instrument containing an order under this paragraph is subject to annulment in pursuance of a resolution of the House of Commons.
PART 2
Liability and amount
Liability
6
1
An anti-forestalling charge under this Schedule on a chargeable pre-change supply —
a
is a liability of the supplier (subject to sub-paragraph (2)), and
b
becomes due on the date of the VAT change (rather than at the time of supply).
2
If, on the date on which the anti-forestalling charge becomes due, the person who would be liable to pay the charge under sub-paragraph (1) —
a
is not a taxable person, but
b
is treated as a member of a group under sections 43A to 43D of VATA 1994,
the anti-forestalling charge is a liability of the representative member of the group.
Amount
7
1
The amount of the anti-forestalling charge on a chargeable pre-change supply is the amount of VAT that would be chargeable on the supply if it were subject to VAT at 20%.
This is subject to any reduction under sub-paragraph (2).
2
If the chargeable pre-change supply is not wholly linked to the post-change period, the anti-forestalling charge is the relevant proportion of that amount.
3
The relevant proportion is —
P W
where —
P is so much of the consideration for the chargeable supply as is attributable, on a just and reasonable basis, to that part of the supply (or, in the case of a grant of a right, that part of the supply to which the right relates) which is linked to the post-change period;
W is the whole of the consideration for the chargeable pre-change supply.
PART 3
Administration and interpretation
Person ceasing to be taxable person before anti-forestalling charge due
8
1
This paragraph applies if, on the date on which an anti-forestalling charge under this Schedule becomes due (“the due date”), the person who is liable to pay the charge under paragraph 6 is not a taxable person.
2
The anti-forestalling charge must be accounted for by that person in accordance with VATA 1994 (and regulations made under that Act) as if it were VAT due in the last period for which the person was required to make a return by or under VATA 1994.
3
If an amount assessed as due by way of an anti-forestalling charge under this Schedule would (in the absence of this sub-paragraph) carry interest from a date earlier than the due date, it is to be treated as only carrying interest from the due date.
Adjustment of contracts following the VAT change
9
1
This paragraph applies where —
a
a contract for the supply of goods or services is made before the date of the VAT change, and
b
there is an anti-forestalling charge under this Schedule on the supply.
2
The consideration for the supply is to be increased by an amount equal to the anti-forestalling charge, unless the contract provides otherwise.
Invoices
10
Regulations under paragraph 2A of Schedule 11 to VATA 1994 (VAT invoices) may make provision about the provision, replacement or correction of invoices in connection with an anti-forestalling charge under this Schedule.
Interpretation: general
11
1
Expressions used in this Schedule and in VATA 1994 have the same meaning in this Schedule as in that Act.
2
In this Schedule “treated as taking place” means treated as taking place for the purposes of the charge to VAT.
SCHEDULE 28
Non-established taxable persons
Section 203
New Schedule 1A
1
In VATA 1994, after Schedule 1 insert —
SCHEDULE 1A
Registration in respect of taxable supplies: non-uk establishment
Liability to be registered
1
1
A person becomes liable to be registered under this Schedule at any time if conditions A to D are met.
2
Condition A is that —
a
the person makes taxable supplies, or
b
there are reasonable grounds for believing that the person will make taxable supplies in the period of 30 days then beginning.
3
Condition B is that those supplies (or any of them) are or will be made in the course or furtherance of a business carried on by the person.
4
Condition C is that the person has no business establishment, or other fixed establishment, in the United Kingdom in relation to any business carried on by the person.
5
Condition D is that the person is not registered under this Act.
2
1
A person does not become liable to be registered by virtue of paragraph 1(2)(b) if the reason for believing that taxable supplies will be made in the 30-day period mentioned there is that a business, or part of a business, carried on by a taxable person is to be transferred to the person as a going concern in that period.
2
But if the transfer takes place, the transferee becomes liable to be registered under this Schedule at the time of the transfer if conditions A to D in paragraph 1 are met in relation to the transferee at that time.
3
In determining for the purposes of sub-paragraph (2) whether condition B is met, the reference in paragraph 1(3) to a business is to be read as a reference to the business, or part of the business, that is transferred to the transferee.
3
A person is treated as having become liable to be registered under this Schedule at any time when the person would have become so liable under paragraph 1 or 2 but for any registration that is subsequently cancelled under —
a
paragraph 11,
b
paragraph 13(3) of Schedule 1,
c
paragraph 6(2) of Schedule 2,
d
paragraph 6(3) of Schedule 3, or
e
paragraph 6(2) of Schedule 3A.
4
1
A person does not cease to be liable to be registered under this Schedule except in accordance with sub-paragraph (2).
2
A person who has become liable to be registered under this Schedule ceases to be so liable at any time if the Commissioners are satisfied that —
a
the person has ceased to make taxable supplies in the course or furtherance of a business carried on by the person, or
b
the person is no longer a person in relation to whom condition C in paragraph 1 is met.
Notification of liability and registration
5
1
A person who becomes liable to be registered by virtue of paragraph 1(2)(a) or 2(2) must notify the Commissioners of the liability before the end of the period of 30 days beginning with the day on which the liability arises.
2
The Commissioners must register any such person (whether or not the person so notifies them) with effect from the beginning of the day on which the liability arises.
6
1
A person who becomes liable to be registered by virtue of paragraph 1(2)(b) must notify the Commissioners of the liability before the end of the period by reference to which the liability arises.
2
The Commissioners must register any such person (whether or not the person so notifies them) with effect from the beginning of the period by reference to which the liability arises.
Notification of end of liability
7
1
A person registered under paragraph 5 or 6 who, on any day, ceases to make or have the intention of making taxable supplies in the course or furtherance of a business carried on by that person must notify the Commissioners of that fact within 30 days beginning with that day.
2
But the person need not notify the Commissioners if on that day the person would otherwise be liable or entitled to be registered under this Act (disregarding for this purpose the person’s registration under this Schedule and any enactment that prevents a person from being liable to be registered under different provisions at the same time).
Cancellation of registration
8
1
The Commissioners must cancel a person’s registration under this Schedule if —
a
the person satisfies them that the person is not liable to be registered under this Schedule, and
b
the person requests the cancellation.
2
The cancellation is to be made with effect from —
a
the day on which the request is made, or
b
such later day as may be agreed between the Commissioners and the person.
3
But the Commissioners must not cancel the registration with effect from any time unless they are satisfied that it is not a time when the person would be subject to a requirement to be registered under this Act.
9
1
The Commissioners may cancel a person’s registration under this Schedule if they are satisfied that the person has ceased to be liable to be registered under this Schedule.
2
The cancellation is to be made with effect from —
a
the day on which the person ceased to be so liable, or
b
such later day as may be agreed between the Commissioners and the person.
3
But the Commissioners must not cancel the registration with effect from any time unless they are satisfied that it is not a time when the person would be subject to a requirement, or entitled, to be registered under this Act.
10
In determining for the purposes of paragraphs 8 and 9 whether a time is a time when a person would be subject to a requirement, or entitled, to be registered under this Act, so much of any provision of this Act as prevents a person from becoming liable or entitled to be registered when the person is already registered or when the person is so liable under any other provision must be disregarded.
11
1
The Commissioners may cancel a person’s registration under this Schedule if they are satisfied that the person was not liable to be registered under this Schedule on the day on which the person was registered.
2
The cancellation is to be made with effect from the day on which the person was registered.
12
Paragraphs 8 to 11 are subject to paragraph 18 of Schedule 3B (cancellation of registration under this Schedule of persons seeking to be registered under that Schedule etc).
Exemption from registration
13
1
The Commissioners may exempt a person from registration under this Schedule if the person satisfies them that the taxable supplies that the person makes or intends to make —
a
are all zero-rated, or
b
would all be zero-rated if the person were a taxable person.
2
The power in sub-paragraph (1) is exercisable only if the person so requests and the Commissioners think fit.
3
If there is a material change in the nature of the supplies made by a person exempted under this paragraph, the person must notify the Commissioners of the change —
a
within 30 days beginning with the day on which the change occurred, or
b
if no particular day is identifiable as that day, within 30 days of the end of the quarter in which the change occurred.
4
If it appears to the Commissioners that a request under this paragraph should no longer be acted upon on or after any day or has been withdrawn on any day, they must register the person who made the request with effect from that day.
5
A reference in this paragraph to supplies is to supplies made in the course or furtherance of a business carried on by the person.
Supplementary
14
Any notification required under this Schedule must be made in such form and manner and must contain such particulars as may be specified in regulations or by the Commissioners in accordance with regulations.
Other amendments of VATA 1994
2
VATA 1994 is amended as follows.
3
In section 7 (place of supply of goods), in subsection (4)(c)(ii), after “Schedule 1” insert “or 1A”.
4
In section 54 (farmers etc), in subsection (2), after “Schedule 1” insert “or is, has become or has ceased to be liable to be registered under Schedule 1A”.
5
In section 55 (customers to account for tax on supplies of gold etc), in subsection (1) —
a
for “Schedule 1” substitute “Schedules 1 and 1A”, and
b
for “that Schedule” substitute “Schedule 1”.
6
In section 55A (customers to account for tax on supplies of goods or services of a kind used in missing trader intra-community fraud), in subsection (3), for “Schedule 1” substitute “Schedules 1 and 1A”.
7
In section 69 (breaches of regulatory provisions), in subsection (1)(a), after “Schedule 1,” insert “paragraph 7 of Schedule 1A,”.
8
In section 73 (failure to make returns etc), in subsection (3)(b), after “Schedule 1,” insert “paragraph 9 or 11 of Schedule 1A,”.
9
In section 74 (interest on VAT recovered or recoverable by assessment), in subsection (1)(c), after “Schedule 1,” insert “under paragraph 13 of Schedule 1A,”.
10
In section 77 (assessments: time limits and supplementary assessments), in subsection (4C), after paragraph (a) insert —
aa
paragraph 5, 6 or 13(3) of Schedule 1A,
.
11
1
Paragraph 1 of Schedule 1 (registration in respect of taxable supplies) is amended as follows.
2
In sub-paragraph (1) —
a
in paragraph (a), after “if” insert “the person is UK-established and”, and
b
in paragraph (b), after “if” insert “the person is UK-established and”.
3
In sub-paragraph (2), for “and the transferee is not registered under this Act at the time of the transfer” substitute “, the transferee is UK-established at the time of the transfer and the transferee is not registered under this Act at that time”.
4
After sub-paragraph (2) insert —
2A
In determining the value of a person’s supplies for the purposes of sub-paragraph (1)(a) or (2)(a), supplies are to be taken into account (subject to sub-paragraphs (3) to (7)) whether or not the person was UK-established when they were made.
5
In sub-paragraph (4)(a), after “below,” insert “paragraph 11 of Schedule 1A,”.
6
In sub-paragraph (5), after “below,” insert “paragraph 11 of Schedule 1A,”.
7
At the end insert —
10
A person is “UK-established” if the person has a business establishment, or some other fixed establishment, in the United Kingdom in relation to a business carried on by the person.
12
In paragraph 3 of that Schedule, at the end of paragraph (b) insert
; or
c
is not at that time UK-established (see paragraph 1(10)).
13
Accordingly, in the heading of that Schedule, at the end insert “ : uk establishment ”.
14
In paragraph 1 of Schedule 2 (registration in respect of supplies from other member States) —
a
in sub-paragraph (1)(b), after “Schedule 1” insert “or 1A”, and
b
in sub-paragraph (4), after “Schedule 1,” insert “paragraph 11 of Schedule 1A,”.
15
In paragraph 1 of Schedule 3 (registration in respect of acquisitions from other member States) —
a
in sub-paragraph (1)(b), after “Schedule 1” insert “, 1A”, and
b
in sub-paragraph (3), after “Schedule 1,” insert “paragraph 11 of Schedule 1A,”.
16
In paragraph 1 of Schedule 3A (registration in respect of disposals of assets for which a VAT repayment is claimed) —
a
in sub-paragraph (1), after “Schedule 1,” insert “1A,”, and
b
in sub-paragraph (2), after “Schedule 1,” insert “paragraph 11 of Schedule 1A,”.
17
In paragraph 18 of Schedule 3B (supply of electronic services in member States: special accounting scheme) —
a
after “Schedule 1”, in the first place it occurs, insert “or 1A”, and
b
after “Schedule 1”, in the second place it occurs, insert “or, as the case may be, 1A”.
Amendments of other Acts
18
In Schedule 41 to FA 2008 (penalties: failure to notify and certain VAT and excise wrongdoing), in the Table in paragraph 1, after the entry for the obligations under Schedule 1 to VATA 1994 insert the following entry —
Value added tax Obligations under paragraphs 5, 6 and 13(3) of Schedule 1A to VATA 1994 (obligations to notify liability to register and notify material change in nature of supplies made by person exempted from registration).
Application
19
The amendments made by this Schedule have effect in relation to supplies made or to be made on or after 1 December 2012.
SCHEDULE 29
Administration of VAT
Section 204
1
VATA 1994 is amended as follows.
2
1
Section 18B (fiscally warehoused goods: relief) is amended as follows.
2
In subsection (1)(d) omit “be in such form and”.
3
In subsection (2)(d) omit “in such form as the Commissioners may by regulations specify”.
4
After subsection (2) insert —
2A
A certificate under subsection (1)(d) or (2)(d) must be in such form as may be specified by regulations or by the Commissioners in accordance with regulations.
3
1
Section 18C (warehouses and fiscal warehouses: services) is amended as follows.
2
In subsection (1)(c) omit “, in such a form as the Commissioners may by regulations specify,”.
3
After subsection (1) insert —
1A
A certificate under subsection (1)(c) must be in such form as may be specified by regulations or by the Commissioners in accordance with regulations.
4
In section 35(2) (refund of VAT to persons constructing certain buildings), for the words following paragraph (c) substitute —
as may be specified by regulations or by the Commissioners in accordance with regulations.
5
1
Section 39(3) (repayment of VAT to those in business overseas) is amended as follows.
2
Before paragraph (a) insert —
za
for claims to be made in such form and manner as may be specified in the scheme or by the Commissioners in accordance with the scheme;
.
3
For paragraph (c) substitute —
c
for generally regulating —
i
the time by which claims must be made, and
ii
the methods by which the amount of any repayment is to be determined and the repayment is to be made.
6
1
Section 48 (VAT representatives) is amended as follows.
2
For subsection (1B)(c) substitute —
c
Council Regulation (EC) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax.
3
After subsection (4) insert —
4A
Regulations under subsection (4) may require a notification under that subsection to be made in such form and manner, and to contain such particulars, as may be specified in the regulations or by the Commissioners in accordance with the regulations.
7
In section 54(6)(a) (farmers etc) —
a
omit “the form and manner in which”, and
b
for “is to be made” substitute “to be made in the form and manner specified in the regulations or by the Commissioners in accordance with the regulations”.
8
In Schedule 1 (registration in respect of taxable supplies), in paragraph 17 (notifications) —
a
after “form” insert “and manner”, and
b
for “as the Commissioners may by regulations prescribe” substitute “as may be specified in regulations or by the Commissioners in accordance with regulations.”
9
In Schedule 2 (registration in respect of supplies from other member States), in paragraph 9 (notifications) —
a
after “form” insert “and manner”, and
b
for “as the Commissioners may by regulations prescribe” substitute “as may be specified in regulations or by the Commissioners in accordance with regulations.”
10
In Schedule 3 (registration in respect of acquisitions from other member States), in paragraph 10 (notifications) —
a
after “form” insert “and manner”, and
b
for “as the Commissioners may by regulations prescribe” substitute “as may be specified in regulations or by the Commissioners in accordance with regulations.”
11
In Schedule 3A (registration in respect of disposals of assets for which a VAT repayment is claimed), in paragraph 8 (notifications) —
a
after “form” insert “and manner”, and
b
for “as the Commissioners may by regulations prescribe” substitute “as may be specified in regulations or by the Commissioners in accordance with regulations.”
12
1
Paragraph 2 of Schedule 11 (accounting for VAT and payment of VAT) is amended as follows.
2
In sub-paragraph (1) (keeping accounts and making returns), insert at the end “or by the Commissioners in accordance with the regulations.”
3
In sub-paragraph (3) (statements containing particulars of certain transactions) —
a
for paragraph (b) substitute —
b
specified by the Commissioners in accordance with the regulations,
, and
b
for “prescribed” substitute “so specified”.
4
In sub-paragraph (3A) (statements containing particulars of certain supplies) —
a
for paragraph (b) substitute —
b
specified by the Commissioners in accordance with the regulations,
, and
b
for “prescribed” substitute “so specified”.
5
In sub-paragraph (3B) (notification of certain events), for “determined by the Commissioners in accordance with powers conferred by the regulations” substitute “by the Commissioners in accordance with the regulations”.
6
In sub-paragraph (4) (notification of acquisition of certain goods), insert at the end “or (in the case of the notification requirement) by the Commissioners in accordance with the regulations”.
7
In sub-paragraph (5)(a) (further provision about notifications), after “regulations” insert “or by the Commissioners in accordance with the regulations”.
13
In consequence of the amendments made by this Schedule —
a
in FA 1996, omit section 30(2), and
b
in FA 2009, omit section 77(2)(d).
SCHEDULE 30
Climate change levy
Section 207
PART 1
Reduced-rate supplies on or after 1 April 2011: deemed supply
1
1
In paragraph 45A(2)(b) of Schedule 6 to FA 2000 (reduced-rate supplies: deemed supply) for “80” substitute “65”.
2
The amendment made by this paragraph has effect in relation to a deemed supply if the actual supply in question was treated as taking place on or after 1 April 2011.
PART 2
Taxable supplies on or after 1 April 2012 for use in recycling processes
2
Schedule 6 to FA 2000 (climate change levy) is amended as follows.
3
In paragraph 4(2)(b) (definition of taxable supply) for “45A” substitute “43B”.
4
In paragraph 5(3) (taxable supplies: deemed supplies of electricity) for “45A” substitute “43B”.
5
In paragraph 6(2A) (taxable supplies: deemed supplies of gas) for “45A” substitute “43B”.
6
In paragraph 14(3A)(a) (use of electricity in an “exemption-retaining” way) for “, 18 and 18A” substitute “and 18”.
7
Omit paragraph 18A (exemption: supply for use in recycling processes).
8
In paragraph 34 (time of supply of commodities other than gas and electricity: deemed supplies) —
a
in sub-paragraph (1)(b), for “45A” substitute “43B”, and
b
in sub-paragraph (4), for “45A” substitute “43B”.
9
In paragraph 39(1)(c) (regulations as to time of supply) for “45A” substitute “43B”.
10
In paragraph 42 (amount payable by way of levy) —
a
in sub-paragraph (1) —
i
in paragraph (a) after “supply” (in the second place it occurs) insert “or a supply for use in scrap metal recycling”,
ii
in paragraph (c) for “were not a reduced-rate supply.” substitute “were a supply to which paragraph (a) applies;”, and
iii
after paragraph (c) insert —
d
if the supply is a supply for use in scrap metal recycling, 20 per cent of the amount that would be payable if the supply were a supply to which paragraph (a) applies.
, and
b
after that sub-paragraph insert —
1ZA
If a taxable supply is both a reduced-rate supply and a supply for use in scrap metal recycling, the amount payable by way of levy on the supply under sub-paragraph (1) is the lower of the two amounts provided for that supply under that sub-paragraph.
11
Before the cross-heading before paragraph 44 insert —
Supplies for use in scrap metal recycling
43A
1
For the purposes of this Schedule, a taxable supply is a supply for use in scrap metal recycling if —
a
the person to whom the taxable commodity is supplied intends to cause the commodity to be used as fuel in a process (“the recycling process”) to be carried out by that person which is the shredding (or fragmentation), pre-treatment and melting of scrap metal for recycling, and
b
the condition in sub-paragraph (2) is satisfied.
2
The condition is that there is another process (“the competing process”) that —
a
uses taxable commodities otherwise than as fuel,
b
produces a product of the same kind as one produced by the recycling process,
c
uses a greater amount of energy than the recycling process to produce a given quantity of that product, and
d
involves a lesser charge to levy for a given quantity of that product than would, but for paragraph 42(1)(d), be the case for the recycling process.
3
For the purposes of sub-paragraph (2)(a), taxable commodities are used “otherwise than as fuel” only if the supplies of those commodities to the person using them are exempted from the levy by virtue of paragraph 18.
4
Sub-paragraphs (5) and (6) apply where the recycling process or the competing process, as well as producing a product of the same kind as one produced by the other process (“the corresponding product”), also produces one or more products that are not (“different products”).
5
If the production of the different products is merely incidental to the production of the corresponding product, the different products are to be treated for the purposes of sub-paragraph (2)(c) and (d) as being of the same kind as the corresponding product.
6
If the production of the different products is not merely incidental to the production of the corresponding product —
a
the amounts of energy referred to in sub-paragraph (2)(c), and the amounts of the charge to levy referred to in sub-paragraph (2)(d), are to be determined on a just and reasonable apportionment, and
b
in calculating the amount payable by way of levy on the taxable supply, only the proportion of the supply that is the same as the proportion of the energy used by the recycling process to produce the corresponding product (as determined for the purposes of paragraph (a)) is to be treated as being a supply for use in scrap metal recycling.
7
In this paragraph —
“melting” means —
the pre-heating and first melting of scrap metal before casting into items (“intermediates”) for further processing or re-melting, or
the heating of scrap metal as part of the recycling process before any solidification and re-melting,
but excluding the melting of any metal which is not scrap but which is added at any stage to improve the quality or adjust the composition of the recycled metal or intermediates, and
“metal” means aluminium or steel.
8
The Commissioners may by regulations make provision for giving effect to this paragraph.
9
Regulations under this paragraph may, in particular, include provision for determining whether or not a taxable supply is a supply for use in scrap metal recycling (to any extent).
Supplies for use in scrap metal recycling and reduced-rate supplies: deemed supply
43B
1
This paragraph applies where —
a
a taxable supply (“the original supply”) has been made to any person (“the recipient”),
b
the original supply was made on the basis that it was, to any extent, a supply for use in scrap metal recycling or a reduced-rate supply,
c
it is later determined that the original supply was (or was to some extent) a different kind of supply, and
d
the amount payable on the supply on the basis mentioned in paragraph (b) is less than the amount payable on the supply on the basis of the later determination.
2
For the purposes of this Schedule —
a
the recipient is deemed to make a taxable supply to itself of the taxable commodity, and
b
the amount payable by way of levy on that deemed supply is —
i
the amount payable on the original supply on the basis of the later determination mentioned in sub-paragraph (1)(c), less
ii
the amount payable on the original supply on the basis mentioned in sub-paragraph (1)(b).
3
This paragraph does not apply where a supply is treated as not being a reduced-rate supply by virtue of paragraph 45B.
12
Omit paragraph 45A (reduced-rate supplies: deemed supply).
13
After paragraph 62(1)(c) (tax credits) insert —
ca
after a taxable supply has been made on the basis that it was not a supply for use in scrap metal recycling, it is determined that the supply was (to any extent) a supply for use in scrap metal recycling;
cb
after a taxable supply has been made on the basis that it was (to any extent) a supply for use in scrap metal recycling, it is determined that the supply was such a supply to a greater extent than previously determined;
.
14
In paragraph 101(2)(a) (penalty for incorrect notification) —
a
in sub-paragraph (ii) omit “, 18A”,
b
omit the “or” after sub-paragraph (ii), and
c
before sub-paragraph (iv) insert —
iiia
a supply (or supplies) for use in scrap metal recycling, or
.
15
In paragraph 146(3) (regulations subject to affirmative resolution procedure) omit “18A,”.
16
In paragraph 147 (interpretation) —
a
in the definition of “prescribed”, omit “, 18A”, and
b
insert at the appropriate place —
“supply for use in scrap metal recycling” has the meaning given by paragraph 43A(1);
.
17
Omit section 188 of FA 2003 (climate change levy: exemption for fuel used in recycling process).
18
1
FA 2011 is amended as follows.
2
In section 79 (which provides for a lower rate of climate change levy for Northern Ireland gas supplies treated as taking place before 1 November 2013), in subsection (2) —
a
omit the “and” after paragraph (b), and
b
after that paragraph insert —
ba
the supply is not a supply for use in scrap metal recycling (within the meaning of that Schedule (see paragraph 147)), and
.
3
Omit section 80 (power to suspend exemption for supplies used in recycling process).
19
The amendments made by paragraphs 2 to 18 have effect in relation to supplies of taxable commodities so far as the commodities are actually supplied on or after 1 April 2012.
PART 3
Rates of climate change levy for supplies on or after 1 April 2013
20
In paragraph 42(1) of Schedule 6 to FA 2000 (amount payable by way of levy) (as amended by paragraph 10(a) above) —
a
before paragraph (c) insert —
ba
if the supply is a reduced-rate supply of electricity, 10 per cent of the amount that would be payable if the supply were a supply to which paragraph (a) applies;
,
b
in paragraph (c), for “a” (in the first place it occurs) substitute “any other”, and
c
for the table substitute —
TABLE
Taxable commodity supplied Rate at which levy payable if supply is not a reduced-rate supply or a supply for use in scrap metal recycling
Electricity £0.00524 per kilowatt hour Gas supplied by a gas utility or any gas supplied in a gaseous state that is of a kind supplied by a gas utility £0.00182 per kilowatt hour Any petroleum gas, or other gaseous hydrocarbon, supplied in a liquid state £0.01172 per kilogram Any other taxable commodity £0.01429 per kilogram
.
21
In paragraph 43B(1) of Schedule 6 to FA 2000 (supplies for use in scrap metal recycling and reduced-rate supplies: deemed supply) (as inserted by paragraph 11 above), for paragraph (b) substitute —
b
the original supply was made on the basis that it was, to any extent —
i
a supply for use in scrap metal recycling,
ii
a reduced-rate supply of electricity, or
iii
a reduced-rate supply of any other taxable commodity,
.
22
In section 79 of FA 2011 (which provides for a lower rate of climate change levy for Northern Ireland gas supplies treated as taking place before 1 November 2013), in subsection (3)(a), for “£0.00062” substitute “£0.00064”.
23
The amendments made by paragraphs 20 to 22 have effect in relation to supplies treated as taking place on or after 1 April 2013.
SCHEDULE 31
Climate change levy: climate change agreements
Section 207
1
Schedule 6 to FA 2000 (climate change levy) is amended as follows.
2
In paragraph 44(1)(a), (2A) and (2C) (definition of “reduced-rate” supply) for “Secretary of State” substitute “Administrator”.
3
In paragraph 45(1) (variation of certificates under paragraph 44) for “Secretary of State” substitute “Administrator”.
4
In paragraph 45B(2) and (6) (removal of reduced rate) for “Secretary of State” (wherever occurring) substitute “Administrator”.
5
In the cross-heading before paragraph 47 omit “ with Secretary of State ”.
6
In paragraph 47(1) (definition of “climate change agreement”: direct agreements) —
a
in paragraph (a), for “Secretary of State” substitute “Administrator”,
b
omit the “and” after paragraph (f),
c
in paragraph (g) —
i
for “five-yearly” substitute “seven-yearly”, and
ii
after “Secretary of State” insert “or the Administrator”, and
d
after paragraph (g) insert
, and
h
containing any terms required by regulations falling within paragraph 52E .
7
1
Paragraph 48 (definition of “climate change agreement”: combination of umbrella and underlying agreements) is amended as follows.
2
In sub-paragraph (3)(c) —
a
for “five-yearly” substitute “seven-yearly”, and
b
after “Secretary of State” insert “or the Administrator”.
3
In sub-paragraph (4) —
a
in paragraph (a), for “Secretary of State” substitute “Administrator”,
b
omit the “and” after paragraph (c), and
c
after paragraph (d) insert
, and
e
containing any terms required by regulations falling within paragraph 52E .
4
In sub-paragraph (5) —
a
for paragraph (b) substitute —
b
entered into with the Administrator,
,
b
omit paragraph (c),
c
omit the “and” after paragraph (d), and
d
after paragraph (e) insert
, and
f
containing any terms required by regulations falling within paragraph 52E .
8
1
Paragraph 49 (supplemental provision relating to climate change agreements) is amended as follows.
2
In sub-paragraph (3) for “Secretary of State” (wherever occurring) substitute “Administrator”.
3
In sub-paragraph (7) for “paragraphs 47 and 48 and this paragraph” substitute “this Part of this Schedule”.
4
In sub-paragraph (8) —
a
for “Secretary of State” substitute “Administrator”,
b
after paragraph (a) insert “or”, and
c
omit paragraph (c) and the “or” before it.
9
After paragraph 52 insert —
The Administrator etc
52A
1
In this Part of this Schedule references to “the Administrator” are to the body appointed as such by regulations made by the Secretary of State.
2
The body appointed must be a body established by an enactment (as defined in section 97 of the Climate Change Act 2008).
3
Different bodies may be appointed in relation to facilities in different parts of the United Kingdom.
52B
1
The Administrator is responsible for administering the scheme set out in paragraphs 44 to 52.
2
This covers (in particular) the administration of climate change agreements.
3
In this Part of this Schedule “administrative function” means —
a
the Administrator’s function imposed by sub-paragraph (1) , or
b
any other power or duty of the Administrator conferred or imposed by or under a provision of this Part of this Schedule.
52C
1
The Administrator may require persons falling within sub-paragraph (2) to pay to the Administrator such charges as may from time to time be specified to cover any costs incurred by the Administrator in carrying out any administrative function.
2
The persons falling within this sub-paragraph are parties or potential or former parties to agreements falling within paragraph 47 or to umbrella or underlying agreements within the meaning of paragraph 48.
3
In sub-paragraph (1) “specified” means specified in, or determined in accordance with, a scheme made by the Administrator for the purposes of this paragraph.
4
A scheme may provide for the times at which, and the manner in which, charges are to be paid.
5
Paragraph 146(7) applies in relation to the Administrator’s power to make a scheme under this paragraph as it applies in relation to a power to make regulations under this Schedule.
6
A scheme may revoke or vary any previous scheme.
7
A scheme may be made only with the consent of the Secretary of State.
8
Charges received by the Administrator must be paid to the Secretary of State who must pay them into the Consolidated Fund.
9
Sub-paragraph (8) does not apply if the Administrator is the Environment Agency.
52D
1
The Secretary of State may by regulations make provision about the administration of the scheme set out in paragraphs 44 to 52.
2
Sub-paragraph (1) covers (in particular) —
a
provision about climate change agreements, and
b
provision about how the Administrator is to carry out any administrative function.
3
Without prejudice to the generality of sub-paragraphs (1) and (2), regulations may contain any provision falling within paragraph 52E or 52F .
4
Regulations may —
a
require the Administrator to obtain the Secretary of State’s consent to any course of action,
b
confer or impose other powers or duties on the Secretary of State or the Administrator, or
c
confer or impose powers or duties on other persons.
5
The Secretary of State may give directions to the Administrator about how the Administrator is to carry out any administrative function (and this power to give directions includes power to vary or revoke directions previously given).
6
The Secretary of State may issue guidance to the Administrator about how the Administrator is to carry out any administrative function; and the Administrator must have regard to any guidance issued.
52E
1
Regulations may —
a
specify terms which must be included in agreements falling within paragraph 47 or in umbrella or underlying agreements within the meaning of paragraph 48, and
b
confer power on the Administrator to vary such agreements to take account of any changes in the terms specified under paragraph (a) from time to time.
2
The terms which may be specified under sub-paragraph (1)(a) include (in particular) terms falling within paragraph 49(4) under which the absence (or partial absence) of any progress towards meeting any targets for a facility may be made up for by the payment to the Administrator of a sum specified in, or determined in accordance with, the regulations.
3
Sums received by the Administrator must be paid to the Secretary of State who must pay them into the Consolidated Fund.
52F
1
Regulations may confer power on the Administrator —
a
to impose a financial penalty of a specified amount on a person who, as a representative of a facility to which a climate change agreement applies, contravenes a term of the agreement, and
b
to terminate, with effect from a specified date, the agreement so far as it applies to the facility if —
i
the financial penalty is not paid to the Administrator within a specified period, or
ii
the contravention is not remedied to the Administrator’s satisfaction within a specified period.
2
Regulations may also confer power on the Administrator to terminate, with effect from a specified date and without first imposing a financial penalty, a climate change agreement so far as it applies to a facility if there is a contravention of the agreement by a person who is a representative of the facility.
3
Neither sub-paragraph (1)(a) nor sub-paragraph (2) covers a failure to meet, or to make progress towards meeting, any targets set for a facility under a climate change agreement.
4
If regulations falling within sub-paragraph (1) or (2) are made, the regulations must also —
a
confer rights of appeal against a decision taken by the Administrator to impose a financial penalty or to terminate a climate change agreement (as the case may be), and
b
specify the court, tribunal or person who is to hear and determine the appeal.
5
The Secretary of State may be specified for the purposes of sub-paragraph (4)(b) .
6
Penalties received by the Administrator must be paid to the Secretary of State who must pay them into the Consolidated Fund.
7
Regulations may confer power on the Administrator to terminate, with effect from a specified date, a climate change agreement so far as it applies to a facility in specified circumstances not involving a contravention of the agreement.
8
In sub-paragraphs (1) to (7) —
“representative” has the meaning given by paragraph 47(2), and
“specified” means specified in, or determined in accordance with, the regulations.
9
Sub-paragraph (10) or (11) (as the case may be) applies if a climate change agreement is terminated in respect of a facility before the start of, or during, a period specified for the facility in such a certificate as is mentioned in paragraph 44(1).
10
If the termination is before the start of the specified period, the Administrator must, in respect of the facility, give a variation certificate within paragraph 45(1)(a) in relation to the specified period.
11
If the termination is during the specified period, the Administrator must, in respect of the facility, give a variation certificate within paragraph 45(1)(b) in relation to the specified period specifying the day of the termination.
10
In paragraph 137(1) (disclosure of information) after paragraph (f) insert —
fa
the Administrator (within the meaning of Part 4 of this Schedule);
.
11
The amendments made by this Schedule have no effect in relation to climate change agreements entered into with the Secretary of State before the day on which this Act is passed.
SCHEDULE 32
Climate change levy: supplies subject to the carbon price support rates and combined heat and power stations
Section 207
PART 1
Main provision
Amendments to Schedule 6 to FA 2000
1
Schedule 6 to FA 2000 (climate change levy) is amended as follows.
2
In paragraph 4(2)(b) (definition of “taxable supply”) after “24” insert “, 42C, 42D”.
3
1
Paragraph 6 (supplies of gas) is amended as follows.
2
In sub-paragraph (1A) for “but not sub-paragraph” substitute “or”.
3
In sub-paragraph (2A) after “24” insert “, 42C, 42D”.
4
After paragraph 14(5) (exemption: supplies to electricity producers) insert —
6
A supply of a taxable commodity other than electricity to a person is exempt from the levy if —
a
the commodity is to be used by that person in producing electricity in a generating station,
b
the generating station is neither a fully exempt combined heat and power station nor a partly exempt combined heat and power station, and
c
the capacity of the generating station for producing electricity is no more than 2 megawatts.
7
If the generating station mentioned in sub-paragraph (6)(a) is one of a number of generating stations (which may include fully or partly exempt combined heat and power stations) which —
a
are situated in the United Kingdom, and
b
are owned by P or persons connected with P,
the reference to the capacity of the generating station in sub-paragraph (6)(c) is to be read as a reference to the capacity of all those generating stations taken together.
8
For the purposes of sub-paragraph (7)(b) —
a
“P” is the person who owns the generating station mentioned in sub-paragraph (6)(a), and
b
section 1122 of the Corporation Tax Act 2010 (“connected” persons) applies.
9
A supply of coal to a person is exempt from the levy if —
a
the coal is to be used by that person in producing electricity in a generating station which is neither a fully exempt combined heat and power station nor a partly exempt combined heat and power station, and
b
the coal has a gross calorific value of no more than 15 gigajoules per tonne.
5
1
Paragraph 15 (exemption: supplies to combined heat and power stations) is amended as follows.
2
In sub-paragraph (1) —
a
for “a taxable commodity” substitute “electricity”,
b
in paragraph (a), for “commodity” substitute “electricity”, and
c
omit the final sentence.
3
In sub-paragraph (2) —
a
in paragraph (a), for “a taxable commodity” substitute “electricity”, and
b
in paragraph (b), for “commodity” substitute “electricity”.
4
In sub-paragraph (3) for “a taxable commodity” substitute “electricity”.
5
After sub-paragraph (3) insert —
3A
A supply of a taxable commodity other than electricity to a person is exempt from the levy if —
a
that person intends to cause the commodity to be used in —
i
a fully exempt combined heat and power station, or
ii
a partly exempt combined heat and power station,
in producing any outputs of the station, and
b
the capacity of the station for producing electricity is no more than 2 megawatts.
3B
If the station mentioned in sub-paragraph (3A)(a) is one of a number of generating stations (which may include stations which are neither fully exempt combined heat and power stations nor partly exempt combined heat and power stations) which —
a
are situated in the United Kingdom, and
b
are owned by P or persons connected with P,
the reference to the capacity of the station in sub-paragraph (3A)(b) is to be read as a reference to the capacity of all those generating stations taken together.
3C
For the purposes of sub-paragraph (3B)(b) —
a
“P” is the person who owns the station mentioned in sub-paragraph (3A)(a), and
b
section 1122 of the Corporation Tax Act 2010 (“connected” persons) applies.
3D
A supply of coal to a person is exempt from the levy if —
a
that person intends to cause the coal to be used in —
i
a fully exempt combined heat and power station, or
ii
a partly exempt combined heat and power station,
in producing any outputs of the station, and
b
the coal has a gross calorific value of no more than 15 gigajoules per tonne.
6
Before sub-paragraph (4)(a) insert —
za
outputs” has the meaning given by paragraph 148(9);
.
6
After paragraph 15 insert —
15A
1
This paragraph applies to a supply of a taxable commodity mentioned in sub-paragraph (2) to a person if that person intends to cause the commodity to be used in —
a
a fully exempt combined heat and power station, or
b
a partly exempt combined heat and power station,
in producing any outputs of the station.
For this purpose “outputs” has the meaning given by paragraph 148(9).
2
The taxable commodities referred to in sub-paragraph (1) are —
a
gas supplied by a gas utility or any gas supplied in a gaseous state that is of a kind supplied by a gas utility;
b
any petroleum gas, or other gaseous hydrocarbon, supplied in a liquid state;
c
coal which has a gross calorific value of more than 15 gigajoules per tonne.
3
The Treasury may by regulations provide that the non-electricity part of a supply to which this paragraph applies is exempt from the levy to the extent determined in accordance with the regulations.
4
In sub-paragraph (3) the reference to “the non-electricity part” of a supply is to the supply excluding so much of it as is referable to the production of electricity in the station, as determined in accordance with regulations under paragraph 42A(5B).
5
Regulations under sub-paragraph (3) may, in particular, include —
a
provision in respect of the calculations, measurements, data and procedures to be made or used in determining the extent to which a supply is exempt;
b
provision that, so far as framed by reference to any document, is framed by reference to that document as from time to time in force.
6
The first regulations made under sub-paragraph (3) may have retrospective effect.
7
If the exemption of a supply to any extent under this paragraph is part of an aid scheme within Article 25 of Commission Regulation (EC) No. 800/2008 , paragraph 42(4) cites the title and publication reference of that Regulation for the purpose of complying with Article 3(1) of that Regulation.
7
After paragraph 24(4) (deemed supplies) insert —
4A
Sub-paragraph (4B) applies if the supply mentioned in sub-paragraph (1A) or (1B) (or a part of the supply) would have been, or is determined to have been, a taxable supply subject to the carbon price support rates (see paragraph 42A).
4B
The deemed taxable supply under sub-paragraph (3) (or the deemed taxable supply so far as it covers the part in question of the supply mentioned in sub-paragraph (1A) or (1B)) is to be subject to the carbon price support rates.
8
After paragraph 26(3) (electricity or gas: supply when climate change levy accounting document issued) insert —
3A
Sub-paragraphs (2) and (3) are subject to paragraph 28A.
9
After paragraph 28 insert —
Gas: supply when actually supplied
28A
1
This paragraph applies to supplies of gas where —
a
the gas is supplied in a gaseous state and is of a kind supplied by a gas utility,
b
the supply by which the gas is supplied is a taxable supply, and
c
the person liable to account for the levy on that supply is the person to whom the supply is made.
2
Where this paragraph applies, a supply is treated as taking place when the gas is actually supplied to that person.
10
After paragraph 29(7) (electricity or gas: special utility schemes) insert —
8
This paragraph does not apply in relation to supplies of gas where paragraph 28A applies.
11
In paragraph 34 (other commodities: deemed supplies) —
a
in sub-paragraph (1)(b), after “24” insert “, 42C, 42D”, and
b
in sub-paragraph (4), after “paragraph” insert “42C, 42D or”.
12
In paragraph 39(1)(c) (regulations as to time of supply), after “24” insert “, 42C, 42D”.
13
1
Paragraph 40 (persons liable to account for levy) is amended as follows.
2
In sub-paragraph (1) for “(2) or (3)” substitute “(2), (3), (4) or (5)”.
3
After sub-paragraph (3) insert —
4
In the case of a taxable supply subject to the carbon price support rates (see paragraph 42A), the person liable to account for the levy charged on the supply is the person to whom the supply is made.
5
In the case of a taxable supply to a person who intends to cause the commodity supplied to be used in —
a
a fully exempt combined heat and power station, or
b
a partly exempt combined heat and power station,
in producing any outputs of the station, the person liable to account for the levy charged on the supply is the person to whom the supply is made.
For this purpose “outputs” has the meaning given by paragraph 148(9).
14
1
Paragraph 42A (supplies subject to the carbon price support rates) is amended as follows.
2
In sub-paragraph (2)(a) for “, apart from electricity,” substitute “mentioned in the Table in sub-paragraph (5)”.
3
After sub-paragraph (2) insert —
2A
A supply within sub-paragraph (3) is subject to the carbon price support rates so far as it is referable to the production of electricity in the station.
4
In sub-paragraph (3) after “taxable commodity” insert “mentioned in the Table in sub-paragraph (5)”.
5
In sub-paragraph (5), in the Table —
a
in the first column of the final row, for “Any other taxable commodity (apart from electricity)” substitute “Coal”, and
b
in the second column of that row, for “£0.01188 per kilogram” substitute “£0.44264 per gigajoule”.
6
After sub-paragraph (5) insert —
5A
Sub-paragraph (4) needs to be read with paragraph 42B.
5B
For the purposes of sub-paragraph (2A) the extent to which a supply is referable to the production of electricity in a station is to be determined in accordance with regulations made by the Treasury.
5C
Regulations under sub-paragraph (5B) may, in particular, include —
a
provision in respect of the calculations, measurements, data and procedures to be made or used;
b
provision that, so far as framed by reference to any document, is framed by reference to that document as from time to time in force.
7
In sub-paragraph (6) after “paragraph” insert “and paragraph 42B”.
8
For sub-paragraph (7) substitute —
7
Regulations under sub-paragraph (6) may, in particular, include provision —
a
for determining whether or not a taxable supply is subject to the carbon price support rates,
b
if the supply is subject to those rates, for determining whether or not paragraph 42B(2) applies in relation to the supply, and
c
if paragraph 42B(2) applies in relation to the supply, for determining the reduction in the relevant carbon price support rate.
15
After paragraph 42A insert —
42B
1
Sub-paragraph (2) applies for the purposes of paragraph 42A(4) if —
a
the taxable supply is a supply of a taxable commodity to be used for producing electricity in a generating station, and
b
in the calendar year in which the supply is made, carbon capture and storage technology is operated in relation to carbon dioxide generated by the generating station in producing electricity.
2
In relation to the supply, only C% of the relevant carbon price support rate is to be applied (instead of the full rate).
3
“C%” is 100% minus the generating station’s carbon capture percentage for the calendar year.
4
The generating station’s “carbon capture percentage” for the calendar year is the percentage of the station’s generated carbon dioxide for that year which, through the operation of the carbon capture and storage technology, is —
a
captured, and
b
then disposed of by way of permanent storage.
5
The generating station’s “generated carbon dioxide” for the calendar year is the amount of carbon dioxide generated in the year by the station in producing electricity through the burning of taxable commodities mentioned in the Table in paragraph 42A(5).
6
In this paragraph “carbon capture and storage technology” and “carbon dioxide” have the meaning given by section 7(3) and (4) of the Energy Act 2010.
7
Sub-paragraph (8) applies for the purposes of sub-paragraph (4) in relation to any carbon dioxide if —
a
the carbon dioxide is captured but then leaks out and therefore is not disposed of by way of permanent storage, but
b
the leak does not occur —
i
on the land on which the generating station is situated,
ii
on any other land under the control of the station’s operator or a person connected with the station’s operator, or
iii
from any pipeline or other facility or installation which is operated by the station’s operator or a person connected with the station’s operator.
Section 1122 of the Corporation Tax Act 2010 (“connected” persons) applies for the purposes of paragraph (b) .
8
The carbon dioxide is to be treated as if it had been disposed of by way of permanent storage.
9
If the percentage mentioned in sub-paragraph (4) is not a whole number, it is to be rounded to the nearest whole number (taking 0.5% as nearest to the next whole number).
42C
1
This paragraph applies if —
a
a taxable supply (“the original supply”) subject to the carbon price support rates has been made to any person (“the recipient”),
b
the original supply was made on the basis that paragraph 42B(2) applied in relation to the original supply, and
c
it is later determined —
i
that paragraph 42B(2) did not apply in relation to the original supply, or
ii
that the reduction given, by virtue of paragraph 42B(2) , in the amount payable by way of levy on the original supply was too much.
2
For the purposes of this Schedule —
a
the recipient is deemed to make a taxable supply to itself of the taxable commodity in question, and
b
the amount payable by way of levy on that deemed supply is —
i
the total amount payable on the original supply on the basis of the later determination mentioned in sub-paragraph (1)(c) , less
ii
the amount previously determined to be payable on the original supply.
42D
1
This paragraph applies if —
a
a taxable supply (“the original supply”) is made to a person (“the recipient”) on the basis that it is, or is to some extent, a taxable supply subject to the carbon price support rates, and
b
it is later determined that that basis was incorrect and, in consequence, the amount previously determined to be payable by way of levy on the original supply was too low.
2
For the purposes of this Schedule —
a
the recipient is deemed to make a taxable supply to itself of the taxable commodity in question, and
b
the amount payable by way of levy on that deemed supply is —
i
the total amount payable on the original supply on the basis of the later determination mentioned in sub-paragraph (1)(b) , less
ii
the amount previously determined to be payable on the original supply.
16
After paragraph 62(1)(b) (tax credits) insert —
ba
after a taxable supply subject to the carbon price support rates (see paragraph 42A) is made on the basis that paragraph 42B(2) does not apply in relation to the supply, it is determined that paragraph 42B(2) does apply;
bb
after a taxable supply subject to the carbon price support rates is made on the basis that paragraph 42B(2) applies in relation to the supply, it is determined that the reduction given, by virtue of paragraph 42B(2) , in the amount payable by way of levy on the supply was too little;
bc
after a taxable supply is made on the basis that it is, or is to some extent, subject to the carbon price support rates, it is determined that that basis was incorrect and, in consequence, the amount previously determined to be payable by way of levy on the supply was too much;
.
Provision relating to Schedule 20 to FA 2011
17
The amendment of paragraph 101(2) of Schedule 6 to FA 2000 (civil penalties: incorrect certificates) made by paragraph 7 of Schedule 20 to FA 2011 is not to have effect; and paragraph 7 of Schedule 20 to FA 2011 is omitted.
18
1
Paragraph 8 of Schedule 20 to FA 2011 (commencement) is amended as follows.
2
In sub-paragraphs (1) and (3), for “7” substitute “6”.
3
In sub-paragraph (2), omit paragraph (b) and the “and” before it.
Commencement
19
1
Paragraph 8 of Schedule 20 to FA 2011 (as amended by paragraph 18 above) applies in relation to the amendments made by paragraphs 1 to 16 above as it applies in relation to the amendments made by paragraphs 1 to 6 of that Schedule.
2
In paragraph 9(1)(c) of Schedule 20 to FA 2011 the reference to paragraph 42A of Schedule 6 to FA 2000 is to be read as a reference to paragraph 42A as amended by paragraph 14 above.
3
In relation to a supply within paragraph 42A(3) of Schedule 6 of FA 2000 (as amended by paragraph 14 above), paragraph 9(5) of Schedule 20 to FA 2011 applies as if for “23 March 2011” there were substituted “21 March 2012”.
PART 2
Carbon price support rates from 1 April 2014
20
1
In paragraph 42A(5) of Schedule 6 to FA 2000 (supplies subject to the carbon price support rates) (as amended by paragraph 14 above) —
a
for “£0.00091 per kilowatt hour” substitute “£0.00175 per kilowatt hour”,
b
for “£0.01460 per kilogram” substitute “£0.02822 per kilogram”, and
c
for “£0.44264 per gigajoule” substitute “£0.85489 per gigajoule”.
2
The amendments made by this paragraph have effect in relation to supplies treated as taking place on or after 1 April 2014.
PART 3
Electricity produced in combined heat and power stations
21
1
Paragraph 20A of Schedule 6 to FA 2000 (climate change levy: exemption in relation to electricity produced in combined heat and power stations) is amended as follows.
2
In sub-paragraph (1) —
a
omit the “and” after paragraph (c), and
b
after paragraph (d) insert
; and
e
the electricity is actually supplied before 1 April 2018.
3
In sub-paragraph (4)(a) —
a
in sub-paragraph (i), after “station” insert “before 1 April 2013”, and
b
in sub-paragraph (ii), after “station”, in the first place it occurs, insert “before 1 April 2013”.
22
1
The following repeals are made in consequence of paragraph 21 .
2
In Schedule 6 to FA 2000 —
a
in paragraph 5(3), omit “20B(6)(a),”,
b
omit paragraphs 20A and 20B,
c
in paragraph 24(2) —
i
omit “or 20A,”
ii
omit “or in combined heat and power stations”, and
iii
omit “or 20B”, and
d
omit paragraph 149A.
3
Omit sections 123 and 124 of FA 2002.
4
Omit section 193(3) and (5) of FA 2003.
5
The repeals made by this paragraph come into force on the day appointed by the Treasury by order made by statutory instrument.
SCHEDULE 33
Inheritance tax: gifts to charities etc
Section 209
Reduced rate of inheritance tax
1
After Schedule 1 to IHTA 1984 insert —
SCHEDULE 1A
Gifts to charities etc: tax charged at lower rate
Application of this Schedule
1
1
This Schedule applies if —
a
a chargeable transfer is made (under section 4) on the death of a person (“D”), and
b
all or part of the value transferred by the chargeable transfer is chargeable to tax at a rate other than nil per cent.
2
The part of the value transferred that is chargeable to tax at a rate other than nil per cent is referred to in this Schedule as “TP”.
The relief
2
1
If the charitable giving condition is met —
a
the tax charged on the part of TP that qualifies for the lower rate of tax is to be charged at the lower rate of tax, and
b
the tax charged on any remaining part of TP is to be charged at the rate at which it would (but for this Schedule) have been charged on the whole of TP in accordance with section 7.
2
For the purposes of this paragraph, the charitable giving condition is met if, for one or more components of the estate (taking each component separately), the donated amount is at least 10% of the baseline amount.
3
Paragraph 3 defines the components of the estate.
4
Paragraphs 4 and 5 explain how to calculate the donated amount and the baseline amount for each component.
5
The part of TP that “qualifies for the lower rate of tax” is the part attributable to all the property in each of the components for which the donated amount is at least 10% of the baseline amount.
6
The lower rate of tax is 36%.
The components of the estate
3
1
For the purposes of paragraph 2, the components of the estate are —
a
the survivorship component,
b
the settled property component, and
c
the general component.
2
The survivorship component is made up of all the property comprised in the estate that, immediately before D’s death, was joint (or common) property liable to pass on D’s death —
a
by survivorship (in England and Wales or Northern Ireland),
b
under a special destination (in Scotland), or
c
by or under anything corresponding to survivorship or a special destination under the law of a country or territory outside the United Kingdom.
3
The settled property component is made up of all the settled property comprised in the estate in which there subsisted, immediately before D’s death, an interest in possession to which D was beneficially entitled immediately before death.
4
The general component is made up of all the property comprised in the estate other than —
a
property in the survivorship component,
b
property in the settled property component, and
c
property that forms part of the estate by virtue of section 102(3) of the Finance Act 1986 (gifts with reservation).
The donated amount
4
The donated amount, for a component of the estate, is so much of the value transferred by the relevant transfer as (in total) is attributable to property that —
a
forms part of that component, and
b
is property in relation to which section 23(1) applies.
The baseline amount
5
The baseline amount, for a component of the estate, is the amount calculated in accordance with the following steps —
Step 1
Determine the part of the value transferred by the chargeable transfer that is attributable to property in that component.
Step 2
Deduct from the amount determined under Step 1 the appropriate proportion of the available nil-rate band.
“The appropriate proportion” is a proportion equal to the proportion that the amount determined under Step 1 bears to the value transferred by the chargeable transfer as a whole.
“The available nil-rate band” is the amount (if any) by which —
the nil-rate band maximum (increased, where applicable, in accordance with section 8A), exceeds
the sum of the values transferred by previous chargeable transfers made by D in the period of 7 years ending with the date of the relevant transfer.
Step 3
Add to the amount determined under Step 2 an amount equal to so much of the value transferred by the relevant transfer as (in total) is attributable to property that —
forms part of that component, and
is property in relation to which section 23(1) applies.
The result is the baseline amount for that component.
Rules for determining whether charitable giving condition is met
6
1
For the purpose of calculating the donated amount and the baseline amount, any amount to be arrived at in accordance with section 38(3) or (5) is to be arrived at assuming the rate of tax is the lower rate of tax (see paragraph 2(6)).
2
For the purpose of calculating the donated amount, section 39A does not apply to a specific gift of property in relation to which section 23(1) applies (but that section does apply to such a gift for the purpose of calculating the baseline amount).
3
Subject to sub-paragraphs (1) and (2), the provisions of this Act apply for the purpose of calculating the donated amount and the baseline amount as for the purpose of calculating the tax to be charged on the value transferred by the chargeable transfer.
Election to merge parts of the estate
7
1
An election may be made under this paragraph if, for a component of the estate, the donated amount is at least 10% of the baseline amount.
2
That component is referred to as “the qualifying component”.
3
The effect of the election is that the qualifying component and one or more eligible parts of the estate (as specified in the election) are to be treated for the purposes of this Schedule as if they were a single component.
4
Accordingly, if the donated amount for that deemed single component is at least 10% of the baseline amount for it, the property in that component is to be included in the part of TP that qualifies for the lower rate of tax.
5
In relation to the qualifying component —
a
each one of the other two components of the estate is an “eligible part” of the estate, and
b
all the property that forms part of the estate by virtue of section 102(3) of the Finance Act 1986 (gifts with reservation) is also an “eligible part” of the estate.
6
The election must be made by all those who are appropriate persons with respect to the qualifying component and each of the eligible parts to be treated as a single component.
7
“Appropriate persons” means —
a
with respect to the survivorship component, all those to whom the property in that component passes on D’s death (or, if they have subsequently died, their personal representatives),
b
with respect to the settled property component, the trustees of all the settled property in that component,
c
with respect to the general component, all the personal representatives of D or, if there are none, all those who are liable for the tax attributable to the property in that component, and
d
with respect to property within paragraph (b) of sub-paragraph (5), all those in whom the property within that paragraph is vested when the election is to be made.
Opting out
8
1
If an election is made under this paragraph in relation to a component of the estate, this Schedule is to apply as if the donated amount for that component were less than 10% of the baseline amount for it (whether or not it actually is).
2
The election must be made by all those who are appropriate persons (as defined in paragraph 7(7)) with respect to the component.
Elections: procedure
9
1
An election under this Schedule must be made by notice in writing to HMRC within two years after D’s death.
2
An election under this Schedule may be withdrawn by notice in writing to HMRC given —
a
by all those who would be entitled to make such an election, and
b
no later than the end of the period of two years and one month after D’s death.
3
An officer of Revenue and Customs may agree in a particular case to extend the time limit in sub-paragraph (1) or (2)(b) by such period as the officer may allow.
General interpretation
10
In this Schedule, in relation to D —
“the chargeable transfer” means the chargeable transfer mentioned in paragraph 1(1);
“the estate” means D’s estate immediately before death;
“the relevant transfer” means the transfer of value that D is treated (under section 4) as having made immediately before death.
Consequential amendments
2
IHTA 1984 is amended as follows in consequence of paragraph 1.
3
In section 7 (rates), in subsection (1), after “(4) and (5) below” insert “and to Schedule 1A”.
4
In section 33 (amount of charge under section 32), after subsection (2) insert —
2ZA
In determining for the purposes of subsection (1)(b)(ii) the rate or rates that would have applied in accordance with subsection (1) of section 7, the effect of Schedule 1A (if it would have applied) is to be disregarded.
5
In section 78 (conditionally exempt occasion), in subsection (3), for “33(3)” substitute “33(2ZA)”.
6
In section 128 (rate of charge: woodlands) —
a
the existing provisions become subsection (1) of that section, and
b
after that subsection insert —
2
In determining for the purposes of subsection (1) the rate or rates at which tax would have been charged on the amount determined under section 127, the effect of Schedule 1A (if it would have applied) is to be disregarded.
7
After section 141 insert —
Apportionment of relief under section 141
141A
1
This section applies if any part of the value transferred by the later transfer qualifies for the lower rate of tax in accordance with Schedule 1A.
2
The amount of the reduction made under section 141(1) is to be apportioned in accordance with this section.
3
For each qualifying component, the tax chargeable on so much of the value transferred by the later transfer as is attributable to property in that component (“the relevant part of the tax”) is to be reduced by the appropriate proportion of the amount calculated in accordance with section 141(3).
4
“The appropriate proportion” is a proportion equal to the proportion that —
a
the relevant part of the tax, bears to
b
the tax chargeable on the value transferred by the later transfer as a whole.
5
If parts of an estate are treated under Schedule 1A as a single component, subsection (3) applies to the single component (and not to individual components forming part of the deemed single component).
6
If, after making the reductions required by subsection (3), there remains any part of the tax chargeable on the value transferred by the later transfer that has not been reduced, the remaining part of the tax is to be reduced by so much of the amount calculated in accordance with section 141(3) as has not been used up for the purposes of making the reductions required by subsection (3).
7
In this section —
“component” means a component of the estate, as defined in paragraph 3 of Schedule 1A;
“the later transfer” has the meaning given in section 141(1);
“qualifying component” means a component (or deemed single component) for which the donated amount is at least 10% of the baseline amount, as determined in accordance with Schedule 1A.
8
In Schedule 4 (maintenance funds for historic buildings etc), in paragraph 14, after sub-paragraph (2) insert —
2A
In determining for the purposes of sub-paragraph (2) the effective rate or rates at which tax would have been charged on the amount in accordance with section 7(1), the effect of Schedule 1A (if it would have applied) is to be disregarded.
Instruments of variation to be notified to charities etc
9
In section 142 of IHTA 1984 (alteration of dispositions taking effect on death), after subsection (3) insert —
3A
Subsection (1) does not apply to a variation by virtue of which any property comprised in the estate immediately before the person’s death becomes property in relation to which section 23(1) applies unless it is shown that the appropriate person has been notified of the existence of the instrument of variation.
3B
For the purposes of subsection (3A) “the appropriate person” is —
a
the charity or registered club to which the property is given, or
b
if the property is to be held on trust for charitable purposes or for the purposes of registered clubs, the trustees in question.
Commencement
10
1
The Schedule inserted by paragraph 1 has effect in cases where D’s death occurs on or after 6 April 2012 (and the amendments made by paragraphs 3 to 8 are to be read accordingly).
2
The amendment made by paragraph 9 has effect in cases where the person’s death occurs on or after 6 April 2012.
SCHEDULE 34
Bank levy
Section 211
Introductory
1
Schedule 19 to FA 2011 (bank levy) is amended as follows.
Rates 2012
2
In paragraph 6 (steps for determining the amount of the bank levy), in sub-paragraph (2) —
a
for “0.039%” substitute “0.044%”, and
b
for “0.078%” substitute “0.088%”.
3
In paragraph 7 (special provision for chargeable periods falling wholly or partly before 1 January 2012), in sub-paragraph (2) —
a
for “0.039%” substitute “0.044%”, and
b
for “0.078%” substitute “0.088%”.
4
The amendments made by paragraphs 2 and 3 are treated as having come into force on 1 January 2012.
Rates from 2013
5
In paragraph 6 (steps for determining the amount of the bank levy), in sub-paragraph (2) —
a
for “0.044%” substitute “0.0525%”, and
b
for “0.088%” substitute “0.105%”.
6
1
In paragraph 7 (special provision for chargeable periods falling wholly or partly before 1 January 2012) for sub-paragraphs (1) and (2) substitute —
1
Paragraph 6(2) applies subject to this paragraph if some or all of the chargeable period falls before 1 January 2013.
2
For Step 7 there is substituted —
Step 7
Determine the proportion (“P%”) (if any) of the chargeable period which falls within each of the periods (“rate periods”) specified in column 1 of the following table.
In relation to each rate period —
charge P% of the amount of the long term chargeable equity and liabilities at the rate specified, in relation to the rate period concerned, in the second column of the table, and
charge P% of the amount of the short term chargeable liabilities at the rate specified, in relation to the rate period concerned, in the third column of the table.
Add together the results for each rate period in which some or all of the chargeable period falls to give the amount of the bank levy.
Rate period Rate for long term chargeable equity and liabilities Rate for short term chargeable liabilities
1 January 2011 to 28 February 2011 0.025% 0.05% 1 March 2011 to 30 April 2011 0.05% 0.1% 1 May 2011 to 31 December 2011 0.0375% 0.075% 1 January 2012 to 31 December 2012 0.044% 0.088% Any time on or after 1 January 2013 0.0525% 0.105%
2
Accordingly, in the italic heading immediately before that paragraph for “2012” substitute “2013”.
7
The amendments made by paragraphs 5 and 6 come into force on 1 January 2013.
Joint ventures
8
1
Paragraph 43 (calculation of chargeable equity and liabilities where relevant group has an interest in a joint venture) is amended as follows.
2
In sub-paragraph (1), for paragraphs (d) and (e) substitute
, and
d
in the absence of this paragraph, none of the liabilities taken into account in determining the amount of the chargeable equity and liabilities of the relevant group would include the JV liabilities.
3
For sub-paragraph (2) substitute —
2
For the purposes of determining the chargeable equity and liabilities of the relevant group under paragraph 17 or 19 (as the case may be) the joint venture is to be treated as if —
a
it were a member of the group in relation to —
i
the liabilities of the joint venture which consist of the JV liabilities, and
ii
the assets of the joint venture so far as determined by the relevant interest, and
b
it were not a member of the group in relation to the remaining liabilities and assets of the joint venture.
9
In paragraph 44 (chargeable equity and liabilities of joint venture: prevention of double charge), in sub-paragraph (7)(b), for the words from “liabilities for” to “27(2)(a)” substitute “taken into account in calculating the chargeable equity and liabilities of V (or where sub-paragraph (6) applies, A)”.”
10
The amendments made by paragraphs 8 and 9 have effect in relation to chargeable periods ending on or after 1 January 2012.
Double taxation relief
11
1
In paragraph 66 (double taxation arrangements), after sub-paragraph (9) insert —
9A
If arrangements specified in an order under this paragraph provide for relief from the bank levy for periods before the order is made, regulations under this paragraph which are made on the same day as the order, and come into force on the same day as the order, may make provision in relation to those periods.
2
After paragraph 67 insert —
Disclosure of information to foreign tax authorities etc
67A
1
If the Treasury by order declares that —
a
international tax enforcement arrangements which are specified in the order have been made in relation to any territory or territories outside the United Kingdom in association with double taxation arrangements specified under paragraph 66 in the same or a previous order, and
b
it is expedient that those international tax enforcement arrangements have effect,
those arrangements have effect, and do so in spite of anything in any enactment or instrument.
2
“International tax enforcement arrangements” means arrangements which relate to one or both of the following —
a
the exchange of information foreseeably relevant to the administration, enforcement or recovery of the bank levy or any equivalent foreign levy to which the double taxation arrangements relate;
b
the service of documents relating to the bank levy or any such equivalent foreign levy.
3
An order under this paragraph revoking an earlier order may contain transitional provisions that appear to the Treasury to be necessary or expedient.
4
Subsections (4) and (5) of section 173 of FA 2006 (international tax enforcement arrangements: disclosure of information) apply to arrangements which have effect under this paragraph as they apply to arrangements which have effect under that section.
5
Orders under this paragraph are to be made by statutory instrument.
6
A statutory instrument containing an order under this paragraph is subject to annulment in pursuance of a resolution of the House of Commons.
3
Accordingly, the italic heading before paragraph 68 is omitted.
Transitional provision
12
1
This paragraph applies where —
a
an amount of the bank levy is treated as if it were an amount of corporation tax chargeable on an entity (“E”) for an accounting period of E,
b
the chargeable period in respect of which the amount of the bank levy is charged falls (or partly falls) on or after 1 January 2012, and
c
under the Instalment Payment Regulations, one or more instalment payments, in respect of the total liability of E for the accounting period, were treated as becoming due and payable before the commencement date (“pre-commencement instalment payments”).
2
Paragraphs 2 to 10 are to be ignored for the purpose of determining the amount of any pre-commencement instalment payment.
3
If there is at least one instalment payment, in respect of the total liability of E for the accounting period, which under the Instalment Payment Regulations is treated as becoming due and payable on or after the commencement date (“post-commencement instalment payments”), the amount of that instalment payment, or the first of them, is to be increased by the adjustment amount.
4
If there are no post-commencement instalment payments, a further instalment payment, in respect of the total liability of E for the accounting period, of an amount equal to the adjustment amount is to be treated as becoming due and payable at the end of the period of 30 days beginning with the commencement date.
5
“The adjustment amount” is the difference between —
a
the aggregate amount of the pre-commencement instalments determined in accordance with sub-paragraph (2), and
b
the aggregate amount of those instalment payments determined ignoring sub-paragraph (2) (and so taking account of paragraphs 2 to 10 ).
6
In the Instalment Payment Regulations —
a
in regulations 6(1)(a), 7(2), 8(1)(a) and (2)(a), 9(5), 10(1), 11(1) and 13, references to regulation 4A, 4B, 4C, 4D, 5, 5A or 5B of those Regulations are to be read as including a reference to sub-paragraphs (1) to (5) (and in regulation 7(2) “the regulation in question”, and in regulation 8(2) “that regulation”, are to be read accordingly), and
b
in regulation 9(3), the reference to those Regulations is to be read as including a reference to sub-paragraphs (1) to (5).
7
In section 59D of TMA 1970 (general rule as to when corporation tax is due and payable), in subsection (5), the reference to section 59E is to be read as including a reference to this paragraph.
8
In this paragraph —
“the chargeable period” is to be construed in accordance with paragraph 4 or (as the case may be) 5 of Schedule 19 to FA 2011;
“the commencement date” means the day on which this Act is passed;
“the Instalment Payment Regulations” means the Corporation Tax (Instalment Payments) Regulations 1998 ( S.I. 1998/3175 );
and references to the total liability of E for an accounting period are to be construed in accordance with regulation 2(3) of the Instalment Payment Regulations.
SCHEDULE 35
Stamp duty land tax: higher rate for certain transactions
Section 214
Introductory
1
Part 4 of FA 2003 (stamp duty land tax) is amended in accordance with paragraphs 2 to 9.
Higher rate of tax: main provisions
2
1
Section 55 (amount of tax chargeable: general) is amended as follows.
2
In subsection (1), after “chargeable transaction” insert “to which this section applies”.
3
After that subsection insert —
1A
This section applies to any chargeable transaction other than a transaction to which paragraph 3 of Schedule 4A or step 4 of section 74(1A) (higher rate for certain transactions) applies.
4
In subsection (2), for “That percentage” substitute “The percentage mentioned in subsection (1)”.
5
In subsection (5), for “74” substitute “74(2) and (3)”.
6
In subsection (7), after “this section” insert “, step 4 of section 74(1A) or paragraph 3 of Schedule 4A”.
3
After section 55 insert —
Amount of tax chargeable: higher rate for certain transactions
55A
Schedule 4A provides for the calculation of the tax chargeable in respect of certain transactions involving higher threshold interests in dwellings.
4
After Schedule 4 insert —
SCHEDULE 4A
Stamp duty land tax: higher rate for certain transactions
Meaning of “higher threshold interest”
1
1
In this paragraph “interest in a single dwelling” means so much of the subject-matter of a chargeable transaction as consists of a chargeable interest in or over a single dwelling (together with appurtenant rights).
2
An interest in a single dwelling is a higher threshold interest for the purposes of this Schedule if chargeable consideration of more than £2,000,000 is attributable to that interest.
Transactions involving a higher threshold interest
2
1
Sub-paragraphs (2) to (8) apply to a chargeable transaction whose subject-matter consists of or includes a higher threshold interest.
2
If the main subject-matter of the transaction consists entirely of higher threshold interests, the transaction is a high-value residential transaction for the purposes of paragraph 3.
3
If the main subject-matter of the transaction includes a chargeable interest other than a higher threshold interest, the transaction (“the primary transaction”) is to be treated for the relevant purposes as two separate chargeable transactions as follows —
a
a transaction whose subject-matter is all the higher threshold interests, together with any appurtenant rights;
b
a transaction whose subject-matter is the remainder of the subject-matter of the primary transaction.
4
For those purposes, the chargeable consideration for a transaction treated as occurring under sub-paragraph (3) is so much of the chargeable consideration for the primary transaction as is attributable to that transaction.
5
The transaction mentioned in sub-paragraph (3)(a) is a high-value residential transaction for the purposes of paragraph 3.
6
“Relevant purposes” means the purposes of —
a
paragraphs 3 and 5 of this Schedule,
b
section 55 (amount of tax chargeable: general),
c
Schedule 5 (amount of tax chargeable: rent),
d
Schedule 6B (transfers involving multiple dwellings), and
e
any other provision of this Part, so far as it is necessary because of any of paragraphs (a) to (d) to treat the purposes in question as relevant purposes.
7
If a transaction treated under sub-paragraph (3) as two separate transactions is notifiable, each of the separate transactions (but not the primary transaction) is also treated as a separate, and notifiable, transaction for the purposes of section 76 (duty to deliver land transaction return).
8
The provisions relating to land transaction returns are to be read with any adjustments that may be necessary as a result of sub-paragraph (7).
9
The reference in sub-paragraph (1) to a chargeable transaction does not include a transaction to which section 74 (exercise of collective rights by tenants of flats) or section 75 (crofting community right to buy) applies.
Amount of tax chargeable: higher rate for certain transactions
3
1
Where this paragraph applies to a chargeable transaction —
a
the amount of tax chargeable in respect of the transaction is 15% of the chargeable consideration for the transaction, and
b
the transaction is not taken to be linked to any other transaction for the purposes of section 55(4).
2
This paragraph applies to a chargeable transaction if —
a
the transaction is a high-value residential transaction, and
b
the condition in sub-paragraph (3) is met.
3
The condition is that —
a
the purchaser is a company,
b
the acquisition is made by or on behalf of the members of a partnership one or more of whose members is a company, or
c
the acquisition is made for the purposes of a collective investment scheme.
4
References in sub-paragraph (3) to a company do not include a company acting in its capacity as trustee of a settlement.
5
If there are two or more purchasers acting jointly, the condition in sub-paragraph (3) is treated as met if it is met in relation to at least one of those purchasers.
6
In relation to a transfer of an interest in a partnership that is a chargeable transaction by virtue of paragraph 17(2) of Schedule 15, sub-paragraph (3) has effect as if the following were substituted for paragraph (b) of that sub-paragraph —
b
the purchasers (see paragraph 17(3) of Schedule 15) include a company, or
.
7
In relation to an event that is a chargeable transaction by virtue of paragraph 17A(4) of that Schedule, sub-paragraph (3) has effect as if the following were substituted for paragraph (b) of that sub-paragraph —
b
the purchasers (see paragraph 17A(5) of Schedule 15) include a company, or
.
8
For the purposes of sub-paragraph (3), paragraph 3 of Schedule 16 (bare trustees) applies as if sub-paragraphs (2) and (3) of that paragraph were omitted.
9
In the case of a transaction for which the whole or part of the chargeable consideration is rent, this paragraph has effect subject to section 56 and Schedule 5 (amount of tax chargeable: rent).
10
The Treasury may by order amend this paragraph for the purpose of limiting the circumstances in which the condition in sub-paragraph (3) is to be treated as met.
Acquisitions of interests in the same dwelling through different transactions
4
1
Sub-paragraphs (2) and (3) apply if —
a
the subject-matter of a chargeable transaction includes a chargeable interest in or over a dwelling,
b
one or more land transactions, the subject-matter of each of which includes a chargeable interest in or over the dwelling, are linked to that chargeable transaction, and
c
the total consideration attributable to the interests mentioned in paragraphs (a) and (b) (and to any appurtenant rights, but disregarding any rent) is more than £2,000,000.
2
Each of those chargeable interests is treated as a higher threshold interest for the purposes of this Schedule.
3
If the condition in paragraph 3(3) is met in the case of the transaction mentioned in sub-paragraph (1)(a), it is also treated as met in the case of each transaction mentioned in sub-paragraph (1)(b) that is a chargeable transaction.
4
The transactions referred to in this paragraph do not include any transaction to which section 74 (exercise of collective rights by tenants of flats) or section 75 (crofting community right to buy) applies.
Property developers
5
1
A company is treated as not being a company for the purposes of paragraph 3(3)(a) if —
a
the company acquires the subject-matter of the chargeable transaction in the course of a bona fide property development business and for the sole purpose of developing and reselling the land, and
b
the company has carried on that business for at least two years before the effective date of the transaction.
2
Where the subject-matter of a chargeable transaction is acquired by or on behalf of the members of a partnership, those members are taken not to include a company for the purposes of paragraph 3(3)(b) if —
a
that subject-matter is acquired in the course of a bona fide property development business and for the sole purpose of developing and reselling the land, and
b
the partnership has carried on that business for at least two years before the effective date of the transaction.
3
In relation to a transfer of an interest in a partnership that is a chargeable transaction by virtue of paragraph 17(2) of Schedule 15 (“the partnership transfer”) the purchasers are treated as not including a company for the purposes of paragraph 3(3)(b) (as modified by paragraph 3(6)) if —
a
the acquisition effected by the land transfer referred to in paragraph 17(1)(a) of that Schedule was made in the course of a bona fide property development business, and for the sole purpose of developing and reselling the land, and
b
the partnership is continuing to carry on that business at the effective date of the partnership transfer, and has carried it on for at least two years before that date.
4
In relation to an event that is a chargeable transaction by virtue of paragraph 17A(4) of Schedule 15 (“the qualifying event”) the purchasers are treated as not including a company for the purposes of paragraph 3(3)(b) (as modified by paragraph 3(7)) if —
a
the acquisition effected by the land transfer referred to in paragraph 17A(1)(a) of that Schedule was made in the course of a bona fide property development business, and for the sole purpose of developing and reselling the land, and
b
the partnership is continuing to carry on that business at the effective date of the qualifying event, and has carried it on for at least two years before that date.
5
A property development business is a business that consists of or includes buying, and redeveloping for resale, residential property.
6
For the purposes of sub-paragraph (1)(b) a property development business is treated as having been carried on by the company at any time when it was carried on by a company which is a member of the same group as the company.
7
Companies are members of the same group for the purposes of this paragraph if they are members of the same group for the purposes of group relief (see paragraph 1 of Schedule 7).
Partnerships: application of paragraph 2 to certain transactions
6
1
Sub-paragraphs (2) and (3) apply where the subject-matter of a transaction to which Part 3 of Schedule 15 applies consists of or includes a higher threshold interest.
2
The transaction is not to be treated as a high-value residential transaction by virtue of paragraph 2(2) unless the chargeable consideration for the transaction is more than £2,000,000.
3
Paragraph 2(3) to (8) does not apply to the transaction if —
a
the subject-matter of the transaction includes a chargeable interest other than a higher threshold interest, and
b
the result of applying paragraph 2(3) and (4) would be that chargeable consideration of £2,000,000 or less would be attributable to the separate transaction mentioned in paragraph 2(3)(a).
4
For the purposes of sub-paragraph (1) and paragraph 2, the subject-matter (and the main subject-matter) of a transfer of an interest in a partnership that is a chargeable transaction by virtue of sub-paragraph (2) of paragraph 14 of Schedule 15 is —
a
if the transfer is a Type A transfer, the relevant partnership property as defined in sub-paragraph (5) of that paragraph, or
b
if the transfer is a Type B transfer, the relevant partnership property as defined in sub-paragraph (5A) of that paragraph.
5
For the purposes of sub-paragraph (1) and paragraph 2, the subject-matter (and the main subject-matter) of a transfer of an interest in a partnership that is a chargeable transaction by virtue of sub-paragraph (2) of paragraph 17 of Schedule 15 is the subject-matter of the land transfer referred to in sub-paragraph (1)(a) of that paragraph.
6
For the purposes of sub-paragraph (1) and paragraph 2, the subject-matter (and the main subject-matter) of a chargeable transaction that is treated as occurring by virtue of sub-paragraph (4) of paragraph 17A of Schedule 15 is the subject-matter of the land transfer referred to in sub-paragraph (1)(a) of that paragraph.
Meaning of “dwelling”
7
1
This paragraph sets out rules for determining what counts as a dwelling for the purposes of this Schedule.
2
A building or part of a building counts as a dwelling if —
a
it is used or suitable for use as a single dwelling, or
b
it is in the process of being constructed or adapted for such use.
3
Land that is, or is to be, occupied or enjoyed with a dwelling as a garden or grounds (including any building or structure on such land) is taken to be part of that dwelling.
4
Land that subsists, or is to subsist, for the benefit of a dwelling is taken to be part of the dwelling.
5
The subject-matter of a transaction is also taken to include an interest in a dwelling if —
a
substantial performance of a contract constitutes the effective date of that transaction by virtue of a relevant deeming provision,
b
the main subject-matter of the transaction consists of or includes an interest in a building, or a part of a building, that is to be constructed or adapted under the contract for use as a single dwelling, and
c
construction or adaptation of the building, or part of the building, has not begun by the time the contract is substantially performed.
6
In sub-paragraph (5) “contract”, “relevant deeming provision” and “substantially performed” have the same meaning as in paragraph 7(5) of Schedule 6B.
7
A building or part of a building used for a purpose specified in section 116(2) or (3) is not used as a dwelling for the purposes of sub-paragraph (2) or (5).
8
Where a building or part of a building is used for a purpose mentioned in sub-paragraph (7), no account is to be taken for the purposes of sub-paragraph (2) of its suitability for any other use.
8
1
The Treasury may by order amend paragraph 7 so as to specify cases where use of a building is to be use of a building as a dwelling for the purposes of sub-paragraph (2) or (5) of that paragraph.
2
The reference in section 116(8)(a) (power to amend section 116(2) and (3)) to “the purposes of subsection (1)” includes a reference to the purposes of paragraph 7(2) and (5).
Interpretation
9
In this Schedule —
“appurtenant rights”, in relation to a chargeable interest that is, or is part of, the subject-matter of a transaction, means any rights or interests appurtenant or pertaining to the chargeable interest that are acquired with it;
“attributable” means attributable on a just and reasonable basis;
“collective investment scheme” has the same meaning as in Part 17 of the Financial Services and Markets Act 2000 (see section 235 of that Act);
“company” means a body corporate other than a partnership.
Higher rate of tax: exercise of collective rights by tenants of flats
5
1
Section 74 (exercise of collective rights by tenants of flats) is amended as follows.
2
After subsection (1) insert —
1A
The rate of tax is determined as follows.
Step 1
Determine the fraction of the relevant consideration produced by dividing the total amount of that consideration by the number of qualifying flats contained in the premises.
Step 2
If the amount produced by step 1 is £2,000,000 or less, determine the rate of tax and the tax chargeable in accordance with subsections (2) and (3).
Step 3
If the amount produced by step 1 is more than £2,000,000 and the condition in paragraph 3(3) of Schedule 4A is not met with respect to the transaction, determine the rate of tax and the tax chargeable in accordance with subsections (2) and (3).
Step 4
If the amount produced by step 1 is more than £2,000,000 and the condition in paragraph 3(3) of Schedule 4A is met with respect to the transaction, subsections (2) and (3) do not apply, and the amount of tax chargeable in respect of the transaction is 15% of the chargeable consideration for the transaction.
3
For subsection (2) substitute —
2
The rate of tax is determined under section 55 by reference to the fraction of the relevant consideration calculated under step 1 of subsection (1A).
Minor and consequential amendments
6
1
Section 109 (general power to vary Part 4 of FA 2003 by regulations) is amended as follows.
2
After subsection (2) insert —
2A
The power under subsection (2)(b) includes power to alter the conditions for the application to a chargeable transaction of paragraph 3 of Schedule 4A (higher rate for certain transactions), other than the condition that the transaction must be a high-value residential transaction.
3
In subsection (3) —
a
for “subsection (2)(b),” substitute “subsections (2)(b) and (2A),”,
b
omit the “or” at the end of paragraph (a), and
c
after that paragraph insert —
aa
section 74(1A) (exercise of collective rights by tenants of flats),
ab
Schedule 4A (amount of tax chargeable: high-value interests in dwellings), or
.
7
1
Schedule 5 (amount of tax chargeable: rent) is amended as follows.
2
In paragraph 9 —
a
in sub-paragraph (4) —
i
after “section 55” insert “or 74(1A)”, and
ii
after “Schedule” (in the second place it occurs) insert “4A or”, and
b
in sub-paragraph (5) —
i
for “that section” substitute “section 55”, and
ii
after “Schedule” (in the second place it occurs) insert “6B”.
3
In paragraph 9A(1), for “where there is chargeable consideration other than rent.” substitute
where —
a
there is chargeable consideration other than rent, and
b
section 55 (amount of tax chargeable: general) applies to the transaction (whether as a result of paragraph 2 of Schedule 4A or otherwise).
8
In paragraph 2(4) of Schedule 6B (transfers involving multiple dwellings) —
a
omit the “or” at the end of paragraph (a), and
b
after that paragraph insert —
aa
paragraph 3 of Schedule 4A applies to it, or
.
9
1
Schedule 15 (partnerships) is amended as follows.
2
In paragraphs 11(2C) and 19(2C), in the substituted sub-paragraph (4) —
a
after “section 55” insert “or 74(1A)”, and
b
after “Schedule” (in the second place it occurs) insert “4A or”.
3
In paragraph 30(2) —
a
for “either or both” substitute “one or more”, and
b
after paragraph (a) insert —
aa
paragraph 3 of Schedule 4A applies to the transaction;
.
Application of amendments
10
1
Except as mentioned in sub-paragraph (2), the amendments made by this Schedule have effect in relation to any land transaction of which the effective date is on or after 21 March 2012.
2
Those amendments do not have effect in relation to any transaction that is —
a
effected in pursuance of a contract entered into and substantially performed before 21 March 2012,
b
effected in pursuance of a contract entered into before that date and not excluded by sub-paragraph (3), or
c
excepted by sub-paragraph (4).
3
A transaction effected in pursuance of a contract entered into before 21 March 2012 is excluded by this sub-paragraph if —
a
there is any variation of the contract, or assignment (or assignation) of rights under the contract, on or after 21 March 2012,
b
the transaction is effected in consequence of the exercise on or after that date of any option, right of pre-emption or similar right, or
c
on or after that date there is an assignment (or assignation), subsale or other transaction relating to the whole or part of the subject-matter of the contract as a result of which a person other than the purchaser under the contract becomes entitled to call for a conveyance.
4
A transaction treated as occurring under paragraph 17(2) or 17A(4) of Schedule 15 to FA 2003 (partnerships) is excepted by this sub-paragraph if the effective date of the land transfer referred to in sub-paragraph (1)(a) of the paragraph concerned is before 21 March 2012.
SCHEDULE 36
Agreement between UK and Switzerland
Section 218
PART 1
Introduction
The Agreement and the Joint Declaration
1
In this Schedule —
a
“the Agreement” means the agreement signed on 6 October 2011 between the United Kingdom and the Swiss Confederation on co-operation in the area of taxation, as amended by a protocol signed by them on 20 March 2012 and by a mutual agreement signed by them on 18 April 2012 implementing article XVIII of that protocol,
b
“the Joint Declaration” means the joint declaration (concerning a tax finality payment) forming an integral part of that protocol,
c
“the start date” is the date on which the Agreement enters into force in accordance with its terms (see Article 44), and
d
references to a numbered Article are to the Article of that number in the Agreement.
PART 2
The past
Taxes affected
2
1
The taxes affected by this Part are —
a
income tax,
b
capital gains tax,
c
inheritance tax, and
d
VAT.
2
Accordingly, this Part affects —
a
amounts of income on which income tax is charged,
b
chargeable gains,
c
the value of property forming part of the value transferred by a chargeable transfer, and
d
the value of supplies on which VAT is charged.
3
An amount falling within one (or more) of those descriptions is referred to as a “taxable amount” and, in relation to such an amount, “tax” means whichever of the taxes mentioned in sub-paragraph (1) is (or are) charged on it.
Application of this Part
3
1
This Part applies if —
a
a one-off payment is levied in accordance with Part 2 of the Agreement,
b
a certificate is issued under Article 9(4) to a person (“P”) in respect of that payment, and
c
the certificate is approved by P or considered approved by virtue of that Article.
2
The certificate is referred to in this Part as “the Part 2 certificate”.
Qualifying amounts
4
1
The Part 2 certificate applies to taxable amounts in respect of which the conditions in sub-paragraph (2) are met.
2
The conditions are —
a
P is liable to tax on the amount,
b
the amount is untaxed,
c
the taxable event took place before the start date, and
d
the necessary link with the certificate can be demonstrated.
3
The necessary link is —
a
in a case falling within Article 9(3) (non-UK domiciled individuals opting for self-assessment method), that the amount is included in the omitted taxable base by reference to which the one-off payment was calculated, and
b
in any other case, that the amount forms part of or is represented by the assets comprised in the relevant capital by reference to which the one-off payment was calculated (referred to in the Agreement as C r ).
4
For the purposes of sub-paragraph (3)(b), amounts are assumed to be attributed to assets in the way that produces the most beneficial outcome for P.
5
Paragraph 11 makes further provision about the interpretation of sub-paragraph (2).
6
Amounts to which the Part 2 certificate applies in accordance with this paragraph are referred to in this Part as “qualifying amounts”.
Eligibility for clearance
5
1
The effect of the Part 2 certificate depends on whether P is eligible for clearance.
2
P is “eligible for clearance” if —
a
none of the circumstances listed in Article 9(13)(a) to (e) apply (tax investigations etc), and
b
Article 12(1) does not apply (wrongful behaviour in relation to non-UK domiciled status).
3
Otherwise, P is “not eligible for clearance”.
Effect if P eligible for clearance
6
1
This paragraph sets out the effect of the Part 2 certificate if P is eligible for clearance.
2
P ceases to be liable to tax on qualifying amounts.
3
Sub-paragraph (2) does not apply to a qualifying amount if —
a
the amount was held in the United Kingdom,
b
at some point during the period beginning with 6 October 2011 and ending immediately before the start date, it ceased to be held in the United Kingdom, and
c
after that point (but before the start date) it began to be held in Switzerland.
4
Instead, such part of the one-off payment as is attributable (on a just and reasonable basis) to the qualifying amount is to be treated as if it were a credit allowable against the tax due from P taking account of that amount.
5
The meaning of tax due “taking account of” an amount is explained in Part 5 of this Schedule.
6
The form in which a qualifying amount was held in the United Kingdom is irrelevant (so references in sub-paragraph (3) to the amount include an asset representing the amount).
7
The total qualifying amounts to which sub-paragraphs (2) and (4) can apply as a result of the Part 2 certificate is limited to X.
8
If the total exceeds X, the particular qualifying amounts to which those sub-paragraphs apply are assumed to be those that would produce the most beneficial outcome for P.
9
X is —
a
in a case falling within Article 9(3), the value of the omitted taxable base by reference to which the one-off payment was calculated, and
b
in any other case, the value shown in the Part 2 certificate as the value of the relevant capital (C r ).
Ceasing to be liable to tax
7
1
The result of “ceasing to be liable” to tax on a qualifying amount depends on the tax (or taxes) in respect of which the amount is untaxed.
2
For income tax or capital gains tax, the result is that the amount is no longer liable to be brought into account in assessing the income tax or capital gains tax due from P for the tax year in which the amount would otherwise be liable to be brought into account.
3
For inheritance tax, the result is that any inheritance tax due from P in respect of the chargeable transfer and attributable to the property whose value is included in the amount is no longer due from P.
4
For VAT, the result is that P is no longer required to account for output tax on the amount in determining the VAT payable by P for the prescribed accounting period in which P would otherwise be required to account for output tax on the amount.
5
But —
a
ceasing to be liable to tax on a qualifying amount does not affect P’s liability to tax on any other amount, and
b
P’s liability to tax on any other amount remains what it would have been, had the qualifying amount been brought into account in calculating that liability.
6
Accordingly, if the qualifying amount were ever to be brought into account and it were found that the tax assessed on any other amount should have been higher as a result, P would remain liable for the extra tax due on that other amount and for any associated ancillary charge.
7
For the purposes of sub-paragraphs (5) and (6), the qualifying amount is assumed to form the top slice of the total sum on which P is liable to tax.
Effect if P not eligible for clearance
8
1
This paragraph sets out the effect of the Part 2 certificate if P is not eligible for clearance.
2
The one-off payment is to be treated as if it were a credit allowable against the tax due from P taking account of qualifying amounts.
3
The one-off payment is to be applied for the purposes of sub-paragraph (2) —
a
in the order specified in sub-paragraph (4), and
b
subject to that, in the way that produces the most beneficial outcome for P.
4
The order is —
a
first, for VAT,
b
then, for income tax,
c
then, for capital gains tax, and
d
finally, for inheritance tax.
Interest, penalties etc
9
1
Where, by virtue of this Part, P ceases to be liable to tax on a qualifying amount, P also ceases to be liable to any ancillary charge directly connected with that amount.
2
Where, by virtue of this Part, all or part of a one-off payment is treated as if it were a credit allowable against the tax due from P taking account of a qualifying amount, the credit may also be used to offset any ancillary charge directly connected with that amount.
3
Sub-paragraph (4) applies in the case of a qualifying amount that is part only of —
a
an amount of income on which income tax is charged,
b
a chargeable gain,
c
the value of property forming part of the value transferred by a chargeable transfer, or
d
the value of a supply on which VAT is charged.
4
The amount of any ancillary charge directly connected with that qualifying amount is determined by apportioning the ancillary charge directly connected with the income, gain or value on a just and reasonable basis.
Repayments
10
Nothing in this Part entitles any person to a repayment or refund of tax, save for any repayment or refund to which P may be entitled by virtue of paragraph 6(4) or 8(2) if the credit allowable under that paragraph exceeds the total amount of tax against which the credit is allowable.
Paragraph 4: supplementary provision
11
1
This paragraph explains how paragraph 4(2) is to be read for each description of taxable amount.
2
For income and chargeable gains —
a
the reference to P being “liable to tax” includes a case where P would be so liable if the income or gain were to be remitted to the United Kingdom,
b
“the taxable event” takes place when the income arises or the gain accrues (whether or not, in a remittance basis case, it is remitted to the United Kingdom), and
c
the income or gain is “untaxed” if it has not been brought into account in an assessment to income tax or, as the case may be, capital gains tax for the tax year in which it is required to be brought into account.
3
For the value of property forming part of the value transferred by a chargeable transfer —
a
“the taxable event” takes place when the chargeable transfer is made (or, in the case of a potentially exempt transfer, when death occurs), and
b
the value of the property is “untaxed” if it has not been brought into account in determining the value transferred by the chargeable transfer.
4
For the value of supplies on which VAT is charged —
a
“the taxable event” takes place when P makes the supply, and
b
the value of the supply is “untaxed” if output tax on the supply has not been accounted for in determining the VAT payable by P for the prescribed accounting period in which P is required to account for output tax on the supply.
5
Paragraph 4(2)(a) is not satisfied in a case where P is liable to tax only because the liability has been transferred to P as a result of action taken by HMRC (for example, as a result of a notice given under section 77A of VATA 1994 or a direction given under regulation 81 of the Income Tax (PAYE) Regulations 2003 ( S.I. 2003/2682 )).
Refund of one-off payment
12
If a one-off payment is refunded by HMRC in accordance with Article 15(3), this Part ceases to apply with respect to that payment.
PART 3
The future: income tax and capital gains tax
Taxes affected
13
The taxes affected by this Part are —
a
income tax, and
b
capital gains tax.
Application of this Part
14
1
This Part applies if —
a
a sum is levied under Article 19 on an amount of income or a gain of a person, and
b
a certificate is issued to the person under Article 30(1) in respect of the levying of that sum (or sums that include that sum).
2
This Part also applies if —
a
a retention is made under EUSA from an amount of income or a gain of a person,
b
a tax finality payment, as contemplated by the Joint Declaration, is made on the same income or gain, and
c
a certificate is issued to the person under the Joint Declaration in respect of the making of that payment (or payments that include that payment).
3
In this Part —
a
the person is referred to as “P”,
b
the certificate is referred to as “the relevant certificate”,
c
the amount of income, or the gain, is referred to as “the cleared amount”,
d
the account or deposit (within the meaning of the Agreement) to which the certificate relates (or to which certificates relate that include the certificate) is referred to as “the underlying account”, and
e
the sum levied under Article 19 on the cleared amount or, as the case may be, the tax finality payment made on it is referred to as “the transferred sum”.
Effect of relevant certificate
15
1
The effect of the relevant certificate depends on whether P makes an election under paragraph 16 in respect of the underlying account for the applicable year.
2
“The applicable year” is the tax year for which P is liable to income tax or, as the case may be, capital gains tax on the cleared amount.
3
If P makes an election, the transferred sum is to be treated as if it were a credit allowable against the income tax or, as the case may be, capital gains tax due from P for the applicable year.
4
If P does not make an election, P ceases to be liable to income tax or, as the case may be, capital gains tax on the cleared amount.
5
Sub-paragraph (4) is to be read in accordance with paragraph 7.
6
Where P ceases to be liable to tax on the cleared amount, P also ceases to be liable to any ancillary charge directly connected with that amount.
Election
16
1
P may make an election under this paragraph in respect of the underlying account for a tax year if all the affected amounts are included in full in a return (or amended return) made by P under Part 2 of TMA 1970 for that tax year.
2
In relation to a tax year, an amount is an “affected amount” if —
a
a certificate is issued to P under Article 30(1) or the Joint Declaration in respect of the levying of a sum, or the making of a tax finality payment, on that amount,
b
the account or deposit to which the certificate relates is the underlying account, and
c
the amount is required to be brought into account in assessing the income tax or capital gains tax due from P for that tax year.
3
An election under this paragraph must be made in the return or amended return in which the affected amounts are included.
4
An election may only be made under this paragraph if it is accompanied by all the relevant certificates relating to the underlying account.
5
For the purposes of paragraph 15, P is treated as making an election under this paragraph in respect of the underlying account for a tax year if a claim is made under Part 3 of TIOPA 2010 (double taxation relief for special withholding tax) in relation to any of the affected amounts.
6
Section 143 of TIOPA 2010 (taking account of special withholding tax in calculating income or gains) applies with any necessary modifications in relation to a tax finality payment as it applies in relation to special withholding tax.
Other credits to be allowed first
17
Other than a credit allowed under Part 3 of TIOPA 2010, any credit for foreign tax allowed under that Act against the income tax or, as the case may be, capital gains tax due from P for the applicable year is to be allowed before effect is given to paragraph 15(3).
Repayments
18
1
Sub-paragraph (2) applies if the amount of a credit allowable under paragraph 15(3) exceeds the amount of income tax or, as the case may be, capital gains tax due from P for the applicable year (before set-off).
2
The excess is to be set against any amount of the other tax (income tax or capital gains tax) due from P for that year.
3
Nothing in this Part entitles any person to a repayment or refund of tax, save for any repayment to which P may be entitled as a result of paragraph 15(3) if, in relation to a credit allowable under that paragraph, there is any remaining balance after applying —
a
sub-paragraph (2), and
b
section 138(4)(a) or 140(5)(a) of TIOPA 2010, if applicable to the cleared amount.
Relationship with special withholding tax rules
19
The Joint Declaration does not count for the purposes of section 136(6)(b) of TIOPA 2010 (definition of “special withholding tax”) as a corresponding provision of international arrangements.
PART 4
The future: inheritance tax
Taxes affected
20
This Part affects inheritance tax.
Application of this Part
21
1
This Part applies if —
a
an amount is withheld under Article 32(2) in respect of relevant assets of a deceased person (“P”), and
b
a certificate is issued under Article 32(6) in respect of the withholding of that amount.
2
The certificate is referred to in this Part as “the Article 32 certificate”.
3
The relevant assets in relation to which the Article 32 certificate is issued are referred to as “the cleared assets”.
4
Any reference in this Part to “the chargeable transfer” is to the transfer made (under section 4 of IHTA 1984) on P’s death.
Effect of Article 32 certificate
22
1
The cleared assets are to be treated as if they were excluded property in determining the value of P’s estate immediately before P’s death.
2
As a result, any ancillary charge directly connected with those assets is also extinguished.
3
But —
a
treating the cleared assets as if they were excluded property does not affect any liability to inheritance tax on the rest of P’s estate, and
b
that liability remains what it would have been, had the cleared assets not been treated as excluded property.
4
Accordingly, if the cleared assets were ever to be included in an account or further account under section 216 or 217 of IHTA 1984 in respect of the chargeable transfer and it were found that the inheritance tax charged on the value of the property in P’s estate other than the cleared assets should have been higher, the extra tax charged on the value of that other property remains due, together with any associated ancillary charge.
5
For the purposes of sub-paragraphs (3) and (4), the value of the cleared assets is assumed to form the highest part of the value transferred by the chargeable transfer.
Election in respect of Article 32 certificates
23
1
This paragraph applies if the cleared assets for each of the Article 32 certificates issued in respect of P’s death are included in full in an account or further account delivered in respect of P’s death under section 216 or 217 of IHTA 1984 within the time permitted for delivering such an account or further account.
2
The person who delivers the account or further account may elect to disapply paragraph 22.
3
An election under this paragraph must be made in writing at the same time as the account or further account in which all the cleared assets are included, and signed by each person delivering the account or further account.
4
An election may only be made under this paragraph if it is accompanied by each of the Article 32 certificates.
5
If an election is made under this paragraph —
a
paragraph 22 does not apply to the cleared assets for any of the Article 32 certificates issued in respect of P’s death, and
b
the amounts withheld under Article 32(2) are instead to be treated as if they were credits allowable against the inheritance tax due on the value transferred by the chargeable transfer (calculated with the value of all those cleared assets brought into account).
Repayments
24
Nothing in this Part entitles any person to a repayment or refund of tax, save for any repayment to which a person may be entitled as a result of paragraph 23 if the credit allowable under that paragraph exceeds the inheritance tax due from the person on the value transferred by the chargeable transfer.
PART 5
General provisions
Information exchange
25
No obligation of secrecy (whether imposed by statute or otherwise) prevents HMRC from disclosing information pursuant to a request made by virtue of Article 36 (reciprocity measures of the United Kingdom).
Amounts recoverable as if they were VAT
26
1
Part 2 of this Schedule applies to amounts otherwise recoverable under paragraph 5(3) of Schedule 11 to VATA 1994 as a debt due to the Crown (amounts shown on invoices as VAT etc) in the same way as it applies to VAT.
2
But in the application of Part 2 to such amounts —
a
a reference to the value of a supply on which VAT is charged is a reference to the value of the supply shown in the invoice mentioned in paragraph 5(2) of that Schedule,
b
“the taxable event” takes place when the invoice is issued,
c
the value of the supply shown in the invoice is “untaxed” if the amount otherwise recoverable under paragraph 5(3) of that Schedule has not been recovered, and
d
“ceasing to be liable” to tax on the value of that supply means that the amount otherwise recoverable is no longer recoverable.
General interpretation
27
1
In this Schedule —
“ancillary charge” means any interest, penalty, surcharge or other ancillary charge;
“assessment”, in relation to a tax, includes a determination and also includes an amended assessment or determination (and “assess” is to be read accordingly);
“chargeable gain” means a gain that is a chargeable gain for the purposes of TCGA 1992;
“chargeable transfer” has the meaning given in section 2 of IHTA 1984;
“EUSA” means the agreement dated 26 October 2004 between the European Community and the Swiss Confederation providing for measures equivalent to those laid down in Council Directive 2003/48/EC on taxation on savings income in the form of interest payments;
“HMRC” means Her Majesty’s Revenue and Customs;
“qualifying amount” is defined in paragraph 4;
“remitted to the United Kingdom” means remitted to the United Kingdom within the meaning of Chapter A1 of Part 14 of ITA 2007;
“the value transferred”, in relation to a chargeable transfer, has the meaning given in section 3 of IHTA 1984;
“taxable amount” is defined in paragraph 2;
“VAT” means value added tax charged in accordance with VATA 1994.
2
An expression used in relation to a tax has the same meaning as in enactments relating to that tax.
3
A reference to a person being “liable” includes being liable jointly with others.
4
A reference to the most beneficial outcome for P is a reference to the most beneficial outcome for P with respect to P’s liability to tax.
5
A reference to the tax due “taking account of” a qualifying amount is —
a
if the amount is an amount of income or a chargeable gain, a reference to the income tax or capital gains tax due for the tax year in which the amount is required to be brought into account (calculated with that amount brought into account),
b
if the amount is the value of property forming part of the value transferred by a chargeable transfer, a reference to the inheritance tax due on the value transferred by the chargeable transfer (calculated with that amount brought into account),
c
if the amount is the value of a supply on which VAT is charged, a reference to the VAT payable for the prescribed accounting period in which output tax on the supply is required to be brought into account (calculated with that output tax brought into account), and
d
if the amount is the value of a supply to which Part 2 applies by virtue of paragraph 26, a reference to the amount otherwise recoverable under paragraph 5(3) of Schedule 11 to VATA 1994 in respect of that supply.
SCHEDULE 37
International military headquarters, EU forces, etc
Section 220
FA 1960
1
1
Section 74A of FA 1960 (visiting forces and allied headquarters: stamp duty land tax exemptions) is amended as follows.
2
In subsection (4) —
a
for “allied”, in the first place, substitute “international military”, and
b
omit paragraph (c).
3
In subsection (5) —
a
omit paragraph (a),
b
in paragraph (b), after “Council” insert “made for giving effect to an international agreement”, and
c
in paragraph (c), after “detachment of” insert “a”.
4
Accordingly, in the heading for that section for “ allied ” substitute “ international military”.
IHTA 1984
2
In section 6 of IHTA 1984 (excluded property), in subsection (4), after “section 155(1)” insert “or (5A)”.
3
1
Section 155 of that Act (visiting forces and allied headquarters: residence, etc) is amended as follows.
2
In subsection (4) for “allied” substitute “international military”.
3
After subsection (5) insert —
5A
Section 6(4) also applies to —
a
the emoluments paid by the Government of any designated country to a person belonging to the EU civilian staff, not being a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen, and
b
any tangible movable property the presence of which in the United Kingdom is due solely to the presence in the United Kingdom of such a person serving as part of that staff.
5B
A period during which any such person belonging to the EU civilian staff as is referred to in subsection (5A) is in the United Kingdom by reason solely of that person belonging to that staff is not to be treated for the purposes of this Act as a period of residence in the United Kingdom or as creating a change of that person’s residence or domicile.
4
In subsection (6), at the end insert —
“the EU civilian staff” means —
civilian personnel seconded by a member State to an EU institution for the purposes of activities (including exercises) relating to the preparation for, and execution of, tasks mentioned in Article 43(1) of the Treaty on European Union (tasks relating to a common security and defence policy), as amended from time to time, and
civilian personnel (other than locally hired personnel) —
made available to the EU by a member State to work with designated international military headquarters or a force of a designated country, or
otherwise made available to the EU by a member State for the purposes of activities of the kind referred to in paragraph (a).
ITEPA 2003
4
1
Section 303 of ITEPA 2003 (visiting forces and staff of designated allied headquarters: relief from income tax) is amended as follows.
2
In subsection (2)(a) for “allied” substitute “international military”.
3
After subsection (4) insert —
4A
No liability to income tax arises in respect of earnings if —
a
they are paid by the government of a designated country to a person belonging to the EU civilian staff, and
b
that person is not a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen.
4
In subsection (6) —
a
omit the “and” before the definition of “designated”, and
b
after that definition insert
, and
the EU civilian staff” means —
civilian personnel seconded by a member State to an EU institution for the purposes of activities (including exercises) relating to the preparation for, and execution of, tasks mentioned in Article 43(1) of the Treaty on European Union (tasks relating to a common security and defence policy), as amended from time to time, and
civilian personnel (other than locally hired personnel) —
made available to the EU by a member State to work with designated international military headquarters or a force of a designated country, or
otherwise made available to the EU by a member State for the purposes of activities of the kind referred to in paragraph (a).
5
Accordingly, in the heading for that section for “ and staff of designated allied headquarters ” substitute “ etc ”.
ITA 2007
5
1
Section 833 of ITA 2007 (visiting forces and staff of designated allied headquarters: residence, etc) is amended as follows.
2
In subsection (2), in paragraph (a) for “allied” substitute “international military”.
3
After that subsection insert —
2A
This section also applies to an individual within subsection (3) or (3A).
4
In subsection (3), for “This section also applies to an individual who — ” substitute “An individual is within this subsection if the individual — ”.
5
After that subsection insert —
3A
An individual is within this subsection if the individual —
a
belongs to the EU civilian staff,
b
is in the United Kingdom, but only because of serving as part of that staff, and
c
is not a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen.
6
In subsection (7) —
a
omit the “and” before the definition of “designated”, and
b
after that definition insert
, and
the EU civilian staff” means —
civilian personnel seconded by a member State to an EU institution for the purposes of activities (including exercises) relating to the preparation for, and execution of, tasks mentioned in Article 43(1) of the Treaty on European Union (tasks relating to a common security and defence policy), as amended from time to time, and
civilian personnel (other than locally hired personnel) —
made available to the EU by a member State to work with designated international military headquarters or a force of a designated country, or
otherwise made available to the EU by a member State for the purposes of activities of the kind referred to in paragraph (a).
7
Accordingly, in the heading for that section for “ and staff of designated allied headquarters ” substitute “ etc ”.
SCHEDULE 38
Tax agents: dishonest conduct
Section 223
PART 1
Introduction
Overview
1
This Schedule is arranged as follows —
a
this Part explains who is a tax agent and what it means to engage in dishonest conduct,
b
Part 2 sets out the process for establishing whether someone is engaging in or has engaged in dishonest conduct,
c
Part 3 confers power on HMRC to obtain relevant documents,
d
Part 4 sets out sanctions for engaging in dishonest conduct,
e
Part 5 provides for assessment of and appeals against penalties, and
f
Parts 6 and 7 contain miscellaneous provisions and consequential amendments.
Tax agent
2
1
A “tax agent” is an individual who, in the course of business, assists other persons (“clients”) with their tax affairs.
2
Individuals can be tax agents even if they (or the organisations for which they work) are appointed —
a
indirectly, or
b
at the request of someone other than the client.
3
Assistance with a client’s tax affairs includes —
a
advising a client in relation to tax, and
b
acting or purporting to act as agent on behalf of a client in relation to tax.
4
Assistance with a client’s tax affairs also includes assistance with any document that is likely to be relied on by HMRC to determine a client’s tax position.
5
Assistance given for non-tax purposes counts as assistance with a client’s tax affairs if it is given in the knowledge that it will be, or is likely to be, used by a client in connection with the client’s tax affairs.
Dishonest conduct
3
1
An individual “engages in dishonest conduct” if, in the course of acting as a tax agent, the individual does something dishonest with a view to bringing about a loss of tax revenue.
2
It does not matter whether a loss is actually brought about.
3
Nor does it matter whether the individual is acting on the instruction of clients.
4
A loss of tax revenue would be brought about for these purposes if clients were to —
a
account for less tax than they are required to account for by law,
b
obtain more tax relief than they are entitled to obtain by law,
c
account for tax later than they are required to account for it by law, or
d
obtain tax relief earlier than they are entitled to obtain it by law.
5
“Tax” is defined in Part 6 of this Schedule.
6
“Tax relief” includes —
a
any exemption from or deduction or credit against or in respect of tax, and
b
any repayment of tax.
7
A reference in this paragraph to doing something dishonest includes —
a
dishonestly omitting to do something, and
b
advising or assisting a client to do something that the individual knows to be dishonest.
PART 2
Establishing dishonest conduct
Conduct notice
4
1
This paragraph applies if HMRC determine that an individual is engaging in or has engaged in dishonest conduct.
2
An authorised officer (or an officer of Revenue and Customs with the approval of an authorised officer) may notify the individual of that determination.
3
The notice must state the grounds on which the determination was made.
4
For the effect of notifying the individual, see paragraphs 7(2) and 29(2).
5
A notice under this paragraph is referred to as a “conduct notice”.
6
In relation to a conduct notice, a reference to “the determination” is to the determination forming the subject of the notice.
Appeal against determination
5
1
An individual to whom a conduct notice is given may appeal against the determination.
2
Notice of appeal must be given —
a
in writing to the officer who gave the conduct notice, and
b
within the period of 30 days beginning with the day on which the conduct notice was given.
3
It must state the grounds of appeal.
4
On an appeal that is notified to the tribunal, the tribunal may confirm or set aside the determination.
5
Subject to this paragraph, the provisions of Part 5 of TMA 1970 relating to appeals have effect in relation to an appeal under this paragraph as they have effect in relation to an appeal against an assessment to income tax.
6
Setting aside a determination does not prevent a further conduct notice being given in respect of the same conduct if further evidence emerges.
Offence of concealment etc in connection with conduct notice
6
1
A person (“P”) commits an offence if, after a relevant event has occurred, P —
a
conceals, destroys or otherwise disposes of a material document, or
b
arranges for the concealment, destruction or disposal of a material document.
2
A “relevant event” occurs if —
a
a conduct notice is given to an individual, or
b
an individual is informed by an officer of Revenue and Customs that a conduct notice will be or is likely to be given to the individual.
3
A “material document” is any document that could be sought under paragraph 8 as a result of the giving of the conduct notice.
4
If P acts after the event described in sub-paragraph (2)(a), no offence is committed if P acts —
a
after the determination has been set aside,
b
more than 4 years after the conduct notice was given, or
c
without knowledge of that event.
5
If P acts before that event but after the event described in sub-paragraph (2)(b), no offence is committed if P acts —
a
more than 2 years after the individual was, or was last, so informed, or
b
without knowledge of the event described in sub-paragraph (2)(b).
6
P acts without knowledge of an event if P —
a
is not the individual with respect to whom the event has occurred, and
b
does not know, and could not reasonably be expected to know, that the event has occurred.
7
A person guilty of an offence under this paragraph is liable —
a
on summary conviction, to a fine not exceeding the statutory maximum, and
b
on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or both.
PART 3
Power to obtain tax agent’s files etc
Circumstances in which power is exercisable
7
1
The power in paragraph 8 is exercisable only in case A or case B and only with the approval of the tribunal.
2
Case A is where a conduct notice has been given to an individual and either —
a
the time allowed for giving notice of appeal against the determination has expired without any such notice being given, or
b
notice of appeal against the determination was given within that time, but the appeal has been withdrawn or the determination confirmed.
3
Case B is where —
a
an individual has been convicted of an offence relating to tax that involves fraud or dishonesty,
b
the offence was committed after the individual became a tax agent (whether or not the individual was still a tax agent when it was committed and regardless of the capacity in which it was committed),
c
either —
i
the time allowed for appealing against the conviction has expired without any such appeal being brought, or
ii
an appeal against the conviction was brought within that time, but the appeal has been withdrawn or the conviction upheld, and
d
no more than 12 months have elapsed since the date on which paragraph (c) was satisfied.
4
For the purposes of this paragraph, a determination or conviction that is appealed is not considered to have been confirmed or upheld until —
a
the time allowed for bringing any further appeal has expired, or
b
if a further appeal is brought within that time, that further appeal has been withdrawn or determined.
5
In this Schedule, a reference to “the tax agent” is —
a
in a case falling within case A, a reference to the individual mentioned in sub-paragraph (2), and
b
in a case falling within case B, a reference to the individual mentioned in sub-paragraph (3).
6
It does not matter whether the individual is still a tax agent when the power in paragraph 8 is to be exercised.
File access notice
8
1
Subject to paragraph 7, an officer of Revenue and Customs may by notice in writing require any person mentioned in sub-paragraph (2) to provide relevant documents.
2
The persons are —
a
the tax agent, and
b
any other person the officer believes may hold relevant documents.
3
“Relevant documents” is defined in paragraph 9.
4
A notice under this paragraph is referred to as a “file access notice”.
5
The person to whom a file access notice is given is referred to as “the document-holder”.
Relevant documents
9
1
“Relevant documents” means the tax agent’s working papers (whenever acting as a tax agent) and any other documents received, created, prepared or used by the tax agent for the purposes of or in the course of assisting clients with their tax affairs.
2
It does not matter who owns the papers or other documents.
3
The reference in sub-paragraph (1) to clients —
a
includes former clients, and
b
is not limited to the clients with respect to whom the tax agent is engaging in or has engaged in dishonest conduct.
Content of notice
10
1
A file access notice may require the provision of —
a
particular relevant documents specified in the notice, or
b
all relevant documents in the document-holder’s possession or power.
2
A file access notice does not need to identify the clients of the tax agent.
3
A file access notice addressed to anyone other than the tax agent must name the tax agent.
Compliance
11
A file access notice may require documents to be provided —
a
within such period,
b
by such means and in such form, and
c
to such person and at such place,
as is reasonably specified in the notice or in a document referred to in the notice.
12
Unless otherwise specified in the notice, a file access notice may be complied with by providing copies of the relevant documents.
Approval by tribunal
13
1
The tribunal may not approve the giving of a file access notice unless —
a
the application for approval is made by or with the agreement of an authorised officer,
b
the tribunal is satisfied that the case falls within case A or case B (see paragraph 7),
c
the tribunal is satisfied that, in the circumstances, the officer giving the notice is justified in doing so,
d
the document-holder and (where different) the tax agent have been told that relevant documents are to be required and given a reasonable opportunity to make representations to an officer of Revenue and Customs, and
e
the tribunal has been given a summary of any representations so made.
2
Nothing in sub-paragraph (1) requires the tribunal to determine whether an individual is engaging in or has engaged in dishonest conduct.
3
A decision by the tribunal under this paragraph is final (despite the provisions of sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007).
Documents not in person’s possession or power
14
A file access notice only requires the document-holder to provide a document if it is in the document-holder’s possession or power.
Types of information
15
1
A file access notice does not require the document-holder to provide —
a
parts of a document that contain information relating to the conduct of a pending appeal relating to tax, or
b
journalistic material (as defined in section 13 of the Police and Criminal Evidence Act 1984).
2
A file access notice does not require the document-holder to provide personal records (as defined in section 12 of the Police and Criminal Evidence Act 1984).
3
But a file access notice may require the document-holder to provide documents that are personal records, omitting any information whose inclusion (whether alone or with other information) makes the original documents personal records.
Old documents
16
1
A file access notice does not require the document-holder to provide a relevant document if —
a
the whole of the document originated before the back-stop day, and
b
no part of it has a bearing on tax periods ending on or after that day.
2
“The back-stop day” is the first day of the period of 20 years ending with the day on which the file access notice is given.
Privileged communications between professional legal advisers and clients
17
1
A file access notice does not require the document-holder to provide any part of a document that is privileged.
2
For the purposes of this paragraph a document is privileged if it is a document in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications between client and professional legal adviser, could be maintained in legal proceedings.
3
Regulations under paragraph 23 of Schedule 36 to FA 2008 (information powers: privileged communications) apply (with any necessary modifications) to disputes under this paragraph as to whether a document is privileged.
Power to copy documents
18
If a document is provided pursuant to a file access notice, an officer of Revenue and Customs may take copies of or make extracts from the document.
Power to retain documents
19
1
If a document is provided pursuant to a file access notice, HMRC may retain the document for a reasonable period if an officer of Revenue and Customs thinks it necessary to do so.
2
While a document is retained —
a
the document-holder may, if the document is reasonably required for any purpose, request a copy of it, and
b
an officer of Revenue and Customs must comply with such a request without charge.
3
The retention of a document under this paragraph is not to be regarded as breaking any lien claimed on the document.
4
If a document retained under this paragraph is lost or damaged, the Commissioners are liable to compensate the owner of the document for any expenses reasonably incurred in replacing or repairing the document.
Appeal against file access notice
20
1
If the document-holder is a person other than the tax agent, the document-holder may appeal against the file access notice, or any requirement in it, on the ground that it would be unduly onerous to comply with the notice or requirement.
2
Notice of appeal must be given —
a
in writing to the officer by whom the file access notice was given, and
b
within the period of 30 days beginning with the day on which the file access notice was given.
3
It must state the grounds of appeal.
4
On an appeal that is notified to the tribunal, the tribunal may confirm, vary or set aside the file access notice or a requirement in it.
5
If the tribunal confirms or varies the notice or a requirement in it, the document-holder must comply with the notice or requirement —
a
within such period as is specified by the tribunal, or
b
if the tribunal does not specify a period, within such period as is reasonably specified in writing by an officer of Revenue and Customs following the tribunal’s decision.
6
A decision by the tribunal under this paragraph is final (despite the provisions of sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007).
7
Subject to this paragraph, the provisions of Part 5 of TMA 1970 relating to appeals have effect in relation to an appeal under this paragraph as they have effect in relation to an appeal against an assessment to income tax.
Offence of concealment etc in connection with file access notice
21
1
A person (“P”) commits an offence if P —
a
conceals, destroys or otherwise disposes of a required document, or
b
arranges for the concealment, destruction or disposal of a required document.
2
A “required document” is a document within sub-paragraph (3) or sub-paragraph (4).
3
A document is within this sub-paragraph if at the time when P acts —
a
P is required to provide the document by a file access notice, and
b
either —
i
the notice has not been complied with, or
ii
it has been complied with, but P has been notified in writing by an officer of Revenue and Customs that P must continue to preserve the document (and the notification has not been withdrawn).
4
A document is within this sub-paragraph if at the time when P acts —
a
P is not required to provide the document by a file access notice,
b
P has been informed by an officer of Revenue and Customs that P will be or is likely to be so required, and
c
no more than 6 months have elapsed since P was, or was last, so informed.
5
A person guilty of an offence under this paragraph is liable —
a
on summary conviction, to a fine not exceeding the statutory maximum, and
b
on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or both.
Penalty for failure to comply
22
1
A person who fails to comply with a file access notice is liable to a penalty of £300.
2
Failing to comply with a file access notice also includes —
a
concealing, destroying or otherwise disposing of a required document, or
b
arranging for any such concealment, destruction or disposal.
3
“Required document” has the same meaning as in paragraph 21.
Daily penalty for failure to comply
23
If the failure continues after notification of a penalty under paragraph 22 has been issued, the person is liable to a further penalty, for each subsequent day on which the failure continues, of an amount not exceeding £60 for each such day.
Failure to comply with time limit
24
A failure to do anything required to be done within a limited period of time does not give rise to liability to a penalty under paragraph 22 or 23 if the thing was done within such further time (if any) as an officer of Revenue and Customs may have allowed.
Reasonable excuse
25
1
Liability to a penalty under paragraph 22 or 23 does not arise if the person satisfies HMRC or (on an appeal notified to the tribunal) the tribunal that there is a reasonable excuse for the failure.
2
For the purposes of this paragraph —
a
an insufficiency of funds is not a reasonable excuse unless attributable to events outside the person’s control,
b
if the person relies on another person to do anything, that is not a reasonable excuse unless the first person took reasonable care to avoid the failure,
c
if the person had a reasonable excuse for the failure but the excuse has ceased, the person is to be treated as having continued to have the excuse if the failure is remedied without unreasonable delay after the excuse ceased.
PART 4
Sanctions for dishonest conduct
Penalty for dishonest conduct
26
1
An individual who engages in dishonest conduct is liable to a penalty.
2
Subject to paragraph 27, the penalty to which the individual is liable is to be —
a
no less than £5,000, and
b
no more than £50,000.
3
In assessing the amount of the penalty, regard must be had to —
a
whether the individual disclosed the dishonest conduct,
b
whether that disclosure was prompted or unprompted,
c
the quality of that disclosure, and
d
the quality of the individual’s compliance with any file access notice in connection with the dishonest conduct.
4
An individual “discloses” dishonest conduct by —
a
telling HMRC about it,
b
giving HMRC reasonable help in identifying the client or clients concerned and in quantifying the loss of tax revenue (if any) brought about by it, and
c
allowing HMRC access to records for the purpose of ensuring that any such loss is recovered or otherwise properly accounted for.
5
A disclosure is “unprompted” if it is made at a time when the individual has no reason to believe that HMRC have discovered or are about to discover the dishonest conduct.
6
Otherwise, a disclosure is “prompted”.
7
In relation to disclosure or compliance, “quality” includes timing, nature and extent.
Special reduction
27
1
This paragraph applies if HMRC propose to assess an individual to a penalty under paragraph 26 of £5,000.
2
If they think it right because of special circumstances, HMRC may take one or more of the following steps —
a
reduce the penalty to an amount below £5,000 (which may be nil),
b
stay the penalty, or
c
agree a compromise in relation to proceedings for the penalty.
3
“Special circumstances” does not include —
a
ability to pay, or
b
the fact that a loss of tax revenue from a client is balanced by an over-payment by another person (whether or not a client).
Power to publish details
28
1
The Commissioners may publish information about an individual if the individual incurs a penalty under paragraph 26.
2
The information that may be published is —
a
the individual’s name (including any trading name, previous name or pseudonym),
b
the individual’s address,
c
the nature of any business carried on by the individual,
d
the amount of the penalty,
e
the periods or times to which the dishonest conduct relates,
f
any other information the Commissioners consider it appropriate to publish in order to make clear the individual’s identity, and
g
the link (if there is one) between the dishonest conduct and any inaccuracy, failure or action as a result of which information is published under section 94 of FA 2009 (which relates to deliberate tax defaulters).
3
No information may be published under this paragraph if the penalty incurred by the individual is £5,000 or less.
4
Subsections (5) to (9) and (11) of section 94 of FA 2009 apply to publishing information about an individual under this paragraph as they apply to publishing information about a person under that section.
5
If, in acting as a tax agent, the individual works or worked for an organisation, sub-paragraph (2)(f) includes power to publish such information about that organisation as the Commissioners consider appropriate in order to make clear the individual’s identity.
6
Before publishing information about the organisation, the Commissioners must —
a
inform the organisation that they are considering doing so, and
b
afford the organisation reasonable opportunity to make representations about whether it should be published.
PART 5
Penalties: assessment etc
Assessment of penalties
29
1
If a person becomes liable to a penalty under Part 3 or 4 of this Schedule, HMRC may assess the penalty.
2
But, in the case of a penalty under Part 4, they may only do so if a conduct notice has been given to the person and either —
a
the time allowed for giving notice of appeal against the determination has expired without notice of appeal being given, or
b
notice of appeal against the determination was given within the time allowed, but the appeal has been withdrawn or the determination confirmed.
3
Paragraph 7(4) applies for the purposes of sub-paragraph (2)(b).
4
If HMRC assess a penalty, they must notify the person.
30
1
HMRC may not assess a penalty under this Schedule after the applicable deadline.
2
For a penalty under Part 3, the applicable deadline is the end of the period of 12 months beginning with the day on which the person became liable to the penalty.
3
For a penalty under Part 4, the applicable deadline is the end of the period of 12 months beginning with the later of —
a
the first day on which HMRC may assess the penalty (see paragraph 29(2)), and
b
day X.
4
If a loss of tax revenue is brought about by the dishonest conduct, day X is —
a
the day immediately following the end of the appeal period for the assessment or determination of the tax revenue lost (or, if more than one client is involved, the end of the last such period), or
b
if there is no such assessment or determination, the day on which the amount of tax revenue lost is ascertained.
5
Otherwise, day X is the day on which HMRC ascertain that no loss of tax revenue has been brought about by the dishonest conduct.
6
In sub-paragraph (4), “appeal period” means the period during which —
a
an appeal could be brought, or
b
an appeal that has been brought has not been withdrawn or determined.
Appeal against penalty
31
1
A person may appeal against a decision of HMRC —
a
that a penalty is payable under Part 3 of this Schedule, or
b
as to the amount of a penalty payable under Part 3 or 4 of this Schedule.
2
Notice of appeal must be given —
a
in writing to HMRC, and
b
before the end of the period of 30 days beginning with the day on which notification of the penalty was issued.
3
It must state the grounds of appeal.
4
On an appeal under sub-paragraph (1)(a) that is notified to the tribunal, the tribunal may confirm or cancel the decision.
5
On an appeal under sub-paragraph (1)(b) that is notified to the tribunal, the tribunal may —
a
confirm the decision, or
b
substitute for the decision another decision that HMRC had power to make.
6
If, in the case of an appeal against a penalty under Part 4, the tribunal substitutes its decision for HMRC’s, the tribunal may rely on paragraph 27 (special reduction) —
a
to the same extent as HMRC (which may mean applying the same reduction as HMRC to a different starting point), or
b
to a different extent, but only if the tribunal thinks that HMRC’s decision in respect of the application of that paragraph was flawed (when considered in the light of the principles applicable in proceedings for judicial review).
7
Subject to this paragraph and paragraph 32, the provisions of Part 5 of TMA 1970 relating to appeals have effect in relation to an appeal under this paragraph as they have effect in relation to an appeal against an assessment to income tax.
Enforcement of penalty
32
1
A penalty under this Schedule must be paid —
a
before the end of the period of 30 days beginning with the day on which notification of the penalty was issued, or
b
if a notice of appeal under paragraph 31 is given, before the end of the period of 30 days beginning with the day on which the appeal is withdrawn or determined.
2
A penalty under this Schedule may be enforced as if it were income tax charged in an assessment and due and payable.
Double jeopardy
33
A person is not liable to a penalty under this Schedule in respect of anything in respect of which the person has been convicted of an offence.
34
1
A person is not liable to a penalty under this Schedule in respect of anything in respect of which the person is personally liable to a penalty under —
a
Schedule 24 to FA 2007 (penalties for errors),
b
Schedule 41 to FA 2008 (penalties for failure to notify etc), or
c
Schedule 55 to FA 2009 (penalties for failure to make a return etc).
2
Sub-paragraph (1) applies where, for example, the person is personally liable by virtue of section 48(3) of VATA 1994 (VAT representatives).
Power to change amount of penalties
35
1
If it appears to the Treasury that there has been a change in the value of money since the last relevant day, they may by regulations substitute for the sums for the time being specified in paragraphs 22(1), 23, 26(2), 27(1) and (2)(a) and 28(3) such other sums as appear to them to be justified by the change.
2
“Relevant day”, in relation to a specified sum, means —
a
the day on which this Act is passed, and
b
each day on which the power conferred by sub-paragraph (1) has been exercised in relation to that sum.
3
Regulations under this paragraph do not apply to a failure or conduct that began before the day on which they come into force.
4
The power to make regulations under this paragraph is exercisable by statutory instrument.
5
A statutory instrument containing regulations under this paragraph is subject to annulment in pursuance of a resolution of the House of Commons.
PART 6
Miscellaneous provision and interpretation
Application of provisions of TMA 1970
36
Subject to the provisions of this Schedule, the following provisions of TMA 1970 apply for the purposes of this Schedule as they apply for the purposes of the Taxes Acts —
a
section 108 (responsibility of company officers),
b
section 114 (want of form), and
c
section 115 (delivery and service of documents).
Tax
37
1
“Tax” means —
a
income tax,
b
capital gains tax,
c
corporation tax,
d
construction industry deductions,
e
VAT,
f
insurance premium tax,
g
inheritance tax,
h
stamp duty land tax,
i
stamp duty reserve tax,
j
petroleum revenue tax,
k
aggregates levy,
l
climate change levy,
m
landfill tax, and
n
any duty of excise other than vehicle excise duty.
2
“Construction industry deductions” means construction industry deductions under Chapter 3 of Part 3 of FA 2004.
3
“Corporation tax” includes an amount assessable or chargeable as if it were corporation tax.
4
“VAT” means —
a
value added tax charged in accordance with VATA 1994,
b
amounts recoverable under paragraph 5(2) of Schedule 11 to that Act (amounts shown on invoices as VAT), and
c
amounts treated as VAT by virtue of regulations under section 54 of that Act (farmers etc).
General interpretation
38
In this Schedule —
“appointed” includes engaged;
“client” (except in paragraph 17) —
has the meaning given in paragraph 2(1), and
in relation to a particular tax agent, means a client of that tax agent;
“the Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs;
“conduct notice” has the meaning given in paragraph 4;
“the document-holder” has the meaning given in paragraph 8;
“document” includes a copy of a document (see also section 114 of FA 2008);
“file access notice” has the meaning given in paragraph 8;
“HMRC” means Her Majesty’s Revenue and Customs;
“organisation” includes any person or firm carrying on a business;
“specify” includes describe;
“tax period” means a tax year, accounting period or other period in respect of which tax is charged;
“the tribunal” means the First-tier Tribunal or, where determined by or under the Tribunal Procedure Rules, the Upper Tribunal.
39
1
A reference in this Schedule to clients of a tax agent (or to a tax agent’s clients) is a reference to the persons whom the agent assists with their tax affairs.
2
Sub-paragraph (1) applies even if —
a
the agent works for an organisation, and
b
it is the organisation that is appointed to give the assistance.
40
A loss of tax revenue is taken for the purposes of this Schedule to be (or to be capable of being) brought about by dishonest conduct despite the fact that the loss can be recovered or properly accounted for (following discovery of the conduct or otherwise).
41
A reference in this Schedule to working for an organisation includes being a partner or member of an organisation.
42
A reference in a provision of this Schedule to an authorised officer is to an officer of Revenue and Customs who is, or is a member of a class of officers who are, authorised by the Commissioners for the purposes of that provision.
Relationship with other enactments
43
Nothing in this Schedule limits —
a
any liability a person may have under any other enactment in respect of conduct in respect of which a person is liable to a penalty under this Schedule, or
b
any power a person may have under any other enactment to obtain relevant documents.
PART 7
Consequential provisions
TMA 1970
44
TMA 1970 is amended as follows.
45
Omit —
a
section 20A (power to call for papers of tax accountant),
b
section 20B (restrictions on powers under section 20A), and
c
section 99 (assisting in preparation of incorrect return etc).
46
1
Section 20BB (falsification etc of documents) is amended as follows.
2
In subsection (1) —
a
for “subsections (2) to (4)” substitute “subsections (2) and (3)”,
b
in paragraph (a), omit “a notice under section 20A above or”,
c
at the end of that paragraph, omit “or”, and
d
omit paragraph (b).
3
In subsection (2) —
a
in paragraph (a), omit “, the inspector”,
b
at the end of that paragraph, insert “or”,
c
at the end of paragraph (b), omit “or”, and
d
omit paragraph (c).
4
In subsection (3), for the words from “the notice is given” to the end substitute “the order is made, unless before the end of that period an officer of Revenue and Customs has notified the person in writing that the order has not been complied with to the officer’s satisfaction”.
5
Omit subsection (4).
47
In section 20D (interpretation of sections 20 to 20CC) —
a
in subsection (1), for “sections 20A and 20BA” substitute “section 20BA”, and
b
omit subsection (2).
48
In section 103 (time limits for penalties) —
a
omit subsection (3), and
b
in subsection (4), for “neither subsection (1) nor subsection (3) above applies” substitute “subsection (1) does not apply”.
49
In section 103ZA (disapplication of sections 100 to 103) —
a
omit “or” at the end of paragraph (e), and
b
at the end of paragraph (f) insert
, or
g
Schedule 38 to FA 2012 (tax agents: dishonest conduct).
50
In section 118 (interpretation), in the definition of “tax”, omit the words from “except that” to the end.
OTA 1975
51
In Schedule 2 to OTA 1975 (management and collection of petroleum revenue tax), in the Table in paragraph 1(1), omit the entry relating to section 99 of TMA 1970.
IHTA 1984
52
In section 247 of IHTA 1984 (provision of incorrect information), omit subsection (4).
Social Security Contributions and Benefits Act 1992
53
In section 16 of the Social Security Contributions and Benefits Act 1992 (applications of Income Tax Acts and destination of Class 4 contributions), in subsection (1)(c), after “2009” insert “and of Schedule 38 to the Finance Act 2012”.
54
In paragraph 7B of Schedule 1 to that Act (collection of contributions other than through PAYE system), the reference in sub-paragraph (5A) to Part 10 of TMA 1970 includes a reference to this Schedule.
Social Security Contributions and Benefits (Northern Ireland) Act 1992
55
In paragraph 7B of Schedule 1 to the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (collection of contributions other than through PAYE system), the reference in sub-paragraph (5A) to Part 10 of TMA 1970 includes a reference to this Schedule.
Social Security Administration Act 1992
56
In section 110ZA of the Social Security Administration Act 1992 (Class 1, 1A, 1B or 2 contributions: powers to call for documents etc), after subsection (2) insert —
2A
Part 3 of Schedule 38 to the Finance Act 2012 (power to obtain tax agent’s files etc) applies in relation to relevant contributions as in relation to tax and, accordingly —
a
the cases described in paragraph 7 of that Schedule (case A and case B) include cases involving conduct or an offence relating to relevant contributions,
b
(whether the case involves conduct or an offence relating to tax or relevant contributions) the papers and other documents that may be sought under that Part include ones relating to relevant contributions, and
c
the other Parts of that Schedule apply so far as necessary to give effect to the application of Part 3 by virtue of this subsection.
Social Security Administration (Northern Ireland) Act 1992
57
In section 104ZA of the Social Security Administration (Northern Ireland) Act 1992 (Class 1, 1A, 1B or 2 contributions: powers to call for documents etc), after subsection (2) insert —
2A
Part 3 of Schedule 38 to the Finance Act 2012 (power to obtain tax agent’s files etc) applies in relation to relevant contributions as in relation to tax and, accordingly —
a
the cases described in paragraph 7 of that Schedule (case A and case B) include cases involving conduct or an offence relating to relevant contributions,
b
(whether the case involves conduct or an offence relating to tax or relevant contributions) the papers and other documents that may be sought under that Part include ones relating to relevant contributions, and
c
the other Parts of that Schedule apply so far as necessary to give effect to the application of Part 3 by virtue of this subsection.
FA 2003
58
1
FA 2003 is amended as follows.
2
In section 93 (information powers) —
a
in subsection (2), omit the entries relating to Parts 3 and 4 of Schedule 13, and
b
omit subsections (3) to (6).
3
Omit section 96 (penalty for assisting in preparation of incorrect return etc).
4
In Schedule 13 (stamp duty land tax: information powers) —
a
omit Parts 3 and 4, and
b
for paragraph 53 substitute —
53
1
A person commits an offence if the person intentionally —
a
falsifies, conceals, destroys or otherwise disposes of a relevant document, or
b
causes or permits the falsification, concealment, destruction or disposal of a relevant document.
2
A relevant document is a document that the person has been required by an order under Part 6 of this Schedule to deliver.
3
A person does not commit an offence under this paragraph if the person acts —
a
with the written permission of the tribunal or an officer of Revenue and Customs, or
b
after the document has been delivered.
4
A person does not commit an offence under this paragraph if the person acts after the end of the period of 2 years beginning with the date on which the order is made, unless before the end of that period an officer of Revenue and Customs has notified the person in writing that the order has not been complied with to the officer’s satisfaction.
5
A person guilty of an offence under this paragraph is liable —
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or to both.
SCHEDULE 39
Repeal of miscellaneous reliefs etc
Section 227
PART 1
Stamp duty and stamp duty land tax
Nationalisation schemes
1
1
Section 52 of FA 1946 (exemption from stamp duty of documents connected with nationalisation schemes) is repealed.
2
In consequence of the provision made by sub-paragraph (1) —
a
section 67 of that Act (short title, construction, etc) is repealed,
b
in section 41(1) of the Transport Act 1962 (exemptions from stamp duty), omit the words from “, or in section fifty-two” to “schemes),”, and
c
in section 160(1) of the Transport Act 1968 (stamp duty), omit the words from “or in section 52” to “schemes)”.
Visiting forces and allied headquarters
2
Section 74 of FA 1960 (visiting forces and allied headquarters: stamp duty exemptions) is repealed.
Shared ownership transactions
3
1
The following provisions are repealed —
a
section 97 of FA 1980,
b
section 108 of FA 1981, and
c
section 54 of FA 1987.
2
In consequence of the provision made by sub-paragraph (1), omit the following provisions —
a
in Schedule 2 to the Housing (Consequential Provisions) Act 1985, paragraph 43;
b
in FA 1988, section 142(1);
c
in Schedule 14 to FA 1999, paragraph 6.
Instruments subject to duty of fixed amount
4
1
Section 87 of FA 1985 (certificates) is amended as follows.
2
Omit subsection (2) (power to exempt instruments chargeable to stamp duty of a fixed amount).
3
In subsection (5), omit “or Treasury (as the case may be)”.
Acquisitions
5
1
The following provisions are repealed —
a
section 76 of FA 1986 (rate of stamp duty payable on acquisitions), and
b
section 113 of, and Schedule 35 to, FA 2002 (withdrawal of relief for company acquisitions).
2
In consequence of the provision made by sub-paragraph (1), omit the following provisions —
a
in section 98(5) of TMA 1970, in the Table —
i
in the first column, the entry relating to paragraph 11 of Schedule 35 to FA 2002, and
ii
in the second column, the entry relating to paragraph 7 of that Schedule;
b
in Schedule 14 to FA 1999, paragraph 15;
c
in section 127 of FA 2000, subsection (4);
d
in FA 2002, section 112;
e
in FA 2003 —
i
section 127, and
ii
in Schedule 19, paragraph 6(3);
f
in Schedule 21 to the Legal Services Act 2007, paragraph 136;
g
in Schedule 1 to CTA 2010, paragraphs 196, 372 and 376.
Transfers to registered social landlords
6
1
Section 130 of FA 2000 (transfers to registered social landlords etc) is repealed.
2
In consequence of the provision made by sub-paragraph (1), in section 131 of that Act (relief for certain instruments executed before 28 July 2000), omit subsection (1)(b).
Land in disadvantaged areas
7
1
Sections 92 to 92B of, and Schedule 30 to, FA 2001 (exemption for land in disadvantaged areas) are repealed.
2
In consequence of the provision made by sub-paragraph (1), omit the following provisions —
a
in FA 2002, section 110;
b
in Schedule 9 to FA 2005, paragraphs 2, 3 and 5;
c
in Schedule 1 to CTA 2010, paragraph 366.
3
Despite the repeal of section 92 of FA 2001, any regulations made under subsection (4) of that section continue to have effect for the purposes of section 72DA of the Insolvency Act 1986 (exception from prohibition of appointment of administrative receiver in respect of urban regeneration projects).
8
1
Section 57 of, and Schedule 6 to, FA 2003 (disadvantaged areas relief) are repealed.
2
In consequence of the provision made by sub-paragraph (1), omit the following provisions —
a
in section 360C of CAA 2001, subsection (2)(b) (and the “or” before it);
b
in FA 2003 —
i
section 112(2),
ii
in Schedule 15, paragraph 26, and
iii
in paragraph 18A of Schedule 17A, sub-paragraph (5)(b) (and the “or” before it);
c
in FA 2004, section 298(5);
d
in FA 2005 —
i
section 96, and
ii
in Schedule 9, paragraphs 1 and 4;
e
in FA 2008 —
i
section 95(6),
ii
in Schedule 30, paragraph 6, and
iii
in Schedule 31, paragraphs 4 and 9;
f
in Schedule 22 to FA 2011, paragraph 4.
3
In Schedule 15 to FA 2003, in paragraph 25(2), for “paragraphs 26 to 28” substitute “paragraphs 27 and 28”.
Leases granted by registered social landlords
9
1
In Part 5 of FA 2003 (stamp duty), the following provisions are repealed —
a
section 128 (exemption of certain leases granted by registered social landlords);
b
section 129 (relief for certain leases granted before section 128 had effect);
c
in section 130 (registered social landlords: treatment of certain leases granted between 1 January 1990 and 27 March 2000), subsections (3) to (6) and (9).
2
In consequence of the provision made by sub-paragraph (1), in Schedule 4 to CRCA 2005, omit paragraphs 125 to 127.
Application and transitional provision
10
1
The amendments made by paragraphs 1 to 5, 6(1), 7 and 9(1)(a) of this Schedule have effect in relation to instruments executed on or after 6 April 2013.
2
The amendments made by —
a
paragraphs 6(2) and 9(1)(b) of this Schedule, and
b
paragraph 9(1)(c) and (2) of this Schedule, so far as relating to the repeal of section 129 of FA 2003,
have effect in relation to instruments stamped on or after 6 April 2013.
3
The amendments made by paragraph 9(1)(c) and (2), so far as not relating to that repeal, come into force on 6 April 2013.
4
The amendments made by paragraph 8 of this Schedule have effect in relation to transactions of which the effective date is on or after 6 April 2013.
5
This paragraph is subject to paragraphs 11 and 12.
11
The amendments made by paragraph 7 do not have effect in relation to an instrument giving effect to a contract entered into on or before 16 March 2005, unless —
a
the instrument is made in consequence of the exercise after that date of any option, right of pre-emption or similar right, or
b
the instrument transfers the property in question to, or vests it in, a person other than the purchaser under the contract, because of an assignment (or assignation) or further contract made after that date.
12
1
The amendments made by paragraph 8 do not have effect in relation to —
a
any transaction that is effected in pursuance of a contract entered into and substantially performed on or before 16 March 2005, or
b
(subject to sub-paragraph (2)) any other transaction that is effected in pursuance of a contract entered into on or before that date.
2
The exclusion by sub-paragraph (1)(b) of transactions effected in pursuance of any contract entered into on or before 16 March 2005 does not apply if —
a
there is any variation of the contract or assignment of rights under the contract after that date,
b
the transaction is effected in consequence of the exercise after that date of any option, right of pre-emption or similar right, or
c
after that date there is an assignment, subsale or other transaction relating to the whole or part of the subject-matter of the contract as a result of which a person other than the purchaser under the contract becomes entitled to call for a conveyance.
13
1
Any claim for relief under Schedule 6 to FA 2003 (disadvantaged areas relief) which is made in respect of a transaction of which the effective date is on or before 5 April 2013 must be made before 6 May 2014.
2
Sub-paragraph (1) applies —
a
whether or not the claim is made in a land transaction return or an amendment of such a return, and
b
whether the effective date of the transaction is before or after the day on which this Act comes into force.
PART 2
Repeal of harbour reorganisation scheme reliefs
14
Section 45 of FA 1966 (harbour reorganisation schemes: stamp duty) is repealed.
15
Section 221 of TCGA 1992 (harbour reorganisation schemes: transfer of assets) is repealed.
16
Sections 991 to 995 of CTA 2010 (harbour reorganisation schemes) are repealed.
17
In consequence of the provision made by paragraph 15 —
a
in section 288(3A)(a) of TCGA 1992, for “221” substitute “220”, and
b
in Schedule 1 to CTA 2010, omit paragraph 251.
18
1
The amendment made by paragraph 14 has effect in relation to instruments executed on or after 1 April 2013.
2
The amendments made by paragraphs 15 to 17 have effect in relation to any transfer occurring on or after 1 April 2013.
PART 3
Payments relating to reductions in pool betting duty
19
1
Section 126 of FA 1990 (capital allowances and IHT: pools payments for football ground improvements) is repealed.
2
Accordingly, the following are also repealed —
a
paragraph 72 of Schedule 2 to CAA 2001;
b
paragraph 416 of Schedule 1 to ITTOIA 2005.
3
The repeals made by this paragraph —
a
for corporation tax purposes, have effect in relation to payments made on or after 1 April 2013,
b
for income tax purposes, have effect in relation to payments made on or after 6 April 2013, and
c
for inheritance tax purposes, come into force on 6 April 2013 (and have effect in relation to payments whenever made).
20
1
Section 121 of FA 1991 (inheritance tax: pools payments to support games etc) is repealed.
2
The repeal made by this paragraph comes into force on 6 April 2013 (and has effect in relation to payments whenever made).
21
1
In ITTOIA 2005, the following provisions are repealed —
a
section 162 (deductions in respect of payments by persons liable to pool betting duty);
b
section 748 (exemption for payments by persons liable to pool betting duty).
2
Accordingly, section 683(4)(g) of that Act is also repealed.
3
The repeals made by this paragraph have effect in relation to payments made on or after 6 April 2013.
22
1
In CTA 2009, the following provisions are repealed —
a
section 138 (deductions in respect of payments by companies liable to pool betting duty);
b
section 978 (exemption for payments by persons liable to pool betting duty).
2
Accordingly, section 976(1)(b) of that Act (and the “and” before it) are also repealed.
3
The repeals made by this paragraph have effect in relation to payments made on or after 1 April 2013.
PART 4
Life assurance
Abolition of income tax relief for life assurance premiums under section 266 of ICTA
23
Section 266 of ICTA (income tax relief for life assurance premiums paid by eligible individuals) applies in relation to a premium or part of a premium only if the premium or part of a premium —
a
becomes due and payable before 6 April 2015, and
b
is actually paid before 6 July 2015.
24
No claim for relief may be made under paragraph 6 of Schedule 14 to ICTA (provisions ancillary to section 266) after 5 April 2016.
25
1
The Income Tax (Life Assurance Premium Relief) Regulations 1978 ( S.I. 1978/1159 ) (“the 1978 Regulations”) have effect in accordance with this paragraph.
2
Subject to sub-paragraph (3) , an annual claim for the financial year of a life office must be made no later than —
a
the end of the six-year period allowed by regulation 9(1), or
b
if earlier, the end of the relevant 6-month period,
and regulation 9(8) has effect accordingly.
3
An annual claim which a life office is required to make under regulation 9(2) must be made no later than —
a
the end of the one-year period specified in regulation 9(2), or
b
if earlier, the end of the relevant 6-month period,
and regulation 9(6) has effect accordingly.
4
In sub-paragraphs (2) and (3) “the relevant 6-month period” means the period of 6 months after the end of the life office’s first financial year to end after 5 April 2015.
5
The Board must decide all claims made under the 1978 Regulations no later than 5 April 2017.
6
Terms used in this paragraph have the same meaning as they have in the 1978 Regulations.
26
1
In this paragraph —
a
“the 1980 Regulations” means the Friendly Societies (Life Assurance Premium Relief) (Change of Rate) Regulations 1980 ( S.I. 1980/1947 ), and
b
terms have the same meaning as they have in the 1980 Regulations.
2
This paragraph applies in relation to a friendly society which has adopted the prescribed scheme or an approved scheme in accordance with the provisions of the 1977 Regulations.
3
The prescribed scheme or the approved scheme, and the 1977 Regulations and the 1980 Regulations, have effect in relation to the friendly society on the following basis.
4
That basis is —
a
paragraph 23 above does not remove any person’s entitlement to relief under section 266 of ICTA but does change the authorised percentage to 0%,
b
the effective date in relation to that change is 6 April 2015,
c
as well as having effect in relation to gross contributions due and payable on or after 6 April 2015, that change has effect in relation to gross contributions due and payable before that date so far as they are actually paid on or after 6 July 2015 (and, in particular, regulations 3(1) and 4(1) of the 1980 Regulations are to be read accordingly), and
d
a resolution under regulation 3(1) of the 1980 Regulations may be passed in relation to that change at any time before 6 April 2015.
5
For regulation 5 of the 1980 Regulations substitute —
5
1
This regulation applies if a gross contribution is amended under regulation 4.
2
The friendly society may notify the Financial Services Authority of a proposal to amend the sum assured or guaranteed by the contract by an amount determined in accordance with rules which have been certified by an actuary to be fair in relation to the gross contribution payable.
3
The proposed amendment may be made at any time after the expiry of the period of 3 months beginning with the day on which the proposal is notified to the Financial Services Authority.
6
For regulation 8 of the 1980 Regulations substitute —
8
1
This regulation applies if a friendly society adopted an approved scheme under regulation 7 of the 1977 Regulations.
2
The friendly society may notify the Financial Services Authority of a proposal to amend the approved scheme in consequence of any prospective change in the authorised percentage.
3
The proposed amendment —
a
may be made at any time after the expiry of the period of 3 months beginning with the day on which the proposal is notified to the Financial Services Authority, but
b
must be made before 6 April 2015.
27
1
In this paragraph —
a
“the 1980 Regulations” means the Industrial Assurance (Life Assurance Premium Relief) (Change of Rate) Regulations 1980 ( S.I. 1980/1948 ), and
b
terms have the same meaning as they have in the 1980 Regulations.
2
This paragraph applies in relation to an industrial assurance company or collecting society which has adopted the prescribed scheme or an approved scheme in accordance with the provisions of the 1977 Regulations.
3
The prescribed scheme or the approved scheme, and the 1977 Regulations and the 1980 Regulations, have effect in relation to the industrial assurance company or collecting society on the following basis.
4
That basis is —
a
paragraph 23 above does not remove any person’s entitlement to relief under section 266 of ICTA but does change the authorised percentage to 0%,
b
the effective date in relation to that change is 6 April 2015,
c
as well as having effect in relation to gross premiums due and payable on or after 6 April 2015, that change has effect in relation to gross premiums due and payable before that date so far as they are actually paid on or after 6 July 2015 (and, in particular, regulations 3(1) and 4(1) of the 1980 Regulations are to be read accordingly), and
d
a resolution under regulation 3(1) of the 1980 Regulations may be passed in relation to that change at any time before 6 April 2015.
5
For regulation 5 of the 1980 Regulations substitute —
5
1
This regulation applies if a gross premium is amended under regulation 4.
2
The industrial assurance company or collecting society may notify the Financial Services Authority of a proposal to amend the sum assured or guaranteed by the policy or contract by an amount determined in accordance with rules which have been certified by an actuary to be fair in relation to the gross premium payable.
3
The proposed amendment may be made at any time after the expiry of the period of 3 months beginning with the day on which the proposal is notified to the Financial Services Authority.
6
For regulation 8 of the 1980 Regulations substitute —
8
1
This regulation applies if an industrial assurance company or collecting society adopted an approved scheme under regulation 7 of the 1977 Regulations.
2
The industrial assurance company or collecting society may notify the Financial Services Authority of a proposal to amend the approved scheme in consequence of any prospective change in the authorised percentage.
3
The proposed amendment —
a
may be made at any time after the expiry of the period of 3 months beginning with the day on which the proposal is notified to the Financial Services Authority, but
b
must be made before 6 April 2015.
28
1
The following repeals are made in consequence of the provision made by paragraph 23 above.
Act Provision repealed
ICTA Sections 266, 266A and 274. Section 824(2D)(b) and (3)(ad). Schedule 14. In paragraph 8 of Schedule 15, the words from “but” (in the second place it occurs) to the end. FA 1988 Section 29. Paragraph 9 of Schedule 3. FA 1996 Section 167(5) and (6). Paragraph 11 of Schedule 18. Paragraph 20 of Schedule 20. ITEPA 2003 Paragraphs 36 and 119 of Schedule 6. FA 2004 Paragraphs 9 and 10 of Schedule 35. ITA 2007 Section 811(6)(e) and the “and” before it. Paragraph 232 of Schedule 1. FA 2009 Paragraphs 3 to 5 of Schedule 1. Paragraph 9D of Schedule 54.
2
In section 989 of ITA 2007 (definitions for the purposes of the Income Tax Acts) for the definition of “qualifying policy” substitute —
“qualifying policy” is to be read in accordance with Schedule 15 to ICTA,
.
3
The amendments made by sub-paragraphs (1) and (2) come into force on the day appointed by the Treasury by order made by statutory instrument.
4
An order under sub-paragraph (3) may make transitional provision and savings.
5
A statutory instrument containing an order under sub-paragraph (3) is subject to annulment in pursuance of a resolution of the House of Commons.
29
1
This paragraph applies if —
a
a policy which is a qualifying policy (within the meaning of the Income Tax Acts) is varied or another policy is substituted for such a policy, and
b
the variation or substitution is made for the sole purpose of dealing with the consequences of the restrictions placed on relief under section 266 of ICTA by virtue of paragraph 23 above.
2
In the case of a variation, the variation does not itself affect the policy’s status as a qualifying policy.
3
In the case of a substitution, the new policy is to be a qualifying policy.
30
1
In this paragraph “relevant variation” means a variation made for the sole purpose of dealing with the consequences of the restrictions placed on relief under section 266 of ICTA by virtue of paragraph 23 above.
2
A relevant variation of a policy is not to be treated as a variation for the purposes of —
a
paragraph 8(1) or (4) of Schedule 14 to ICTA, or
b
section 485(6) of ITTOIA 2005 (disregard of certain events in relation to qualifying policies).
3
A relevant variation of a policy or contract does not itself cause the breaching of a limit set out in —
a
section 460(2)(c)(iii) or 464 of ICTA, or
b
section 155(3) (so far as relating to contracts made before 14 March 1984) or 160 of this Act.
Removal of claw-backs on relief given under section 266 of ICTA
31
1
In ICTA omit sections 268 to 272 (which provide for the “claw-back” of income tax relief given under section 266 of ICTA).
2
In consequence of the provision made by sub-paragraph (1) , omit —
a
section 824(2D)(a) of ICTA,
b
paragraph 11 of Schedule 35 to FA 2004,
c
paragraph 123 of Schedule 1 to ITTOIA 2005, and
d
paragraph 21 of Schedule 39 to FA 2008.
3
The amendments made by this paragraph have effect in relation to events occurring in relation to policies on or after 6 April 2015.
Abolition of income tax relief relating to certain payments made for benefit of family members etc
32
1
In Chapter 6 of Part 8 of ITA 2007 omit section 459 (which provides income tax relief in relation to certain payments made by individuals for the benefit of family members).
2
In ITA 2007 —
a
in sections 26(1)(a) and 27(5) omit “section 459 of this Act or section 273 of ICTA (payments for benefit of family members),”,
b
in section 423(5) —
i
after paragraph (b) insert “and”, and
ii
omit paragraph (d) (and the “and” before it),
c
in section 460 —
i
omit subsection (1)(b) (and the “or” before it), and
ii
in subsection (4) for “, 458 or 459” substitute “or 458”,
d
in section 809G(2)(c) for “, 458 or 459” substitute “or 458”, and
e
omit section 811(6)(d) (but not the “and” after it).
3
Section 609 of ITEPA 2003 (annuities for the benefit of dependants) is amended as follows.
4
In subsection (1), for the words from the second “which” to the end substitute
—
a
which, in the tax year 2012-13 or an earlier tax year, satisfied the conditions for relief under section 273 of ICTA or section 459 of ITA 2007 (obligatory contributions to secure an annuity for the benefit of dependants), or
b
which fall within subsection (3)
.
5
After subsection (2) insert —
3
A sum falls within this subsection if —
a
in the tax year 2013-14 or a later tax year, the sum is paid by an individual, or is deducted from an individual’s earnings, under an Act or the individual’s terms and conditions of employment,
b
the sum is for the purpose of —
i
securing a deferred annuity after the individual’s death for the individual’s surviving spouse or civil partner, or
ii
making provision after the individual’s death for the individual’s children, and
c
the individual —
i
is UK resident for the tax year in which the sum is paid or deducted, or
ii
at any time in that tax year, falls within any of paragraphs (a) to (f) of section 460(3) of ITA 2007 (matters relating to residence).
4
Subsection (3)(a) does not cover contributions paid by a person under —
a
Part 1 of the Social Security Contributions and Benefits Act 1992, or
b
Part 1 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.
5
In subsection (3)(a) “earnings” has the meaning given by section 62.
6
The amendments made by this paragraph have effect for the tax year 2013-14 and subsequent tax years.
PART 5
Capital allowances
Safety at sports grounds
33
The following provisions of Part 2 of CAA 2001 (plant and machinery allowances) are repealed —
a
section 30 (safety at designated sports grounds),
b
section 31 (safety at regulated stands at sports grounds), and
c
section 32 (safety at other sports grounds).
34
1
In consequence of the provision made by paragraph 33 , CAA 2001 is amended as follows.
2
In section 23(2) (expenditure unaffected by sections 21 and 22), omit —
a
the entry relating to section 30,
b
the entry relating to section 31, and
c
the entry relating to section 32.
3
In section 27 (application of Part 2 to thermal insulation, safety measures, etc) —
a
in subsection (1)(a), for “any of sections 28 to 33” substitute “section 28 or 33”, and
b
in the heading, for “ , safety measures, etc ” substitute “ and personal security ”,
and, in the italic heading before that section, for “ , safety measures, etc ” substitute “ and personal security ”.
35
The amendments made by paragraphs 33 and 34 have effect —
a
for corporation tax purposes, in relation to expenditure incurred on or after 1 April 2013, and
b
for income tax purposes, in relation to expenditure incurred on or after 6 April 2013.
Flat conversion allowances
36
Part 4A of CAA 2001 (flat conversion allowances) does not apply —
a
for corporation tax purposes, in relation to expenditure incurred on or after 1 April 2013, and
b
for income tax purposes, in relation to expenditure incurred on or after 6 April 2013.
37
Part 4A of CAA 2001 is repealed.
38
1
In consequence of the provision made by paragraph 37 , CAA 2001 is amended as follows.
2
In section 1(2) (allowances for which Act provides), omit paragraph (ca).
3
In section 2(3) (giving effect to capital allowances), omit the entry relating to section 393T.
4
In section 567(1) (sales treated as being for alternative amount: introductory), omit “4A,”.
5
In section 570(1) (elections under section 569: supplementary), omit “or 4A”.
6
In section 570A(1) (avoidance affecting proceeds of balancing event), omit “4A,”.
7
In section 573(1) (transfers treated as sales), omit “, 4A”.
8
In Part 2 of Schedule 1 (list of defined expressions), omit the entries for the following defined expressions —
“balancing adjustment (in Part 4A)”,
“balancing event (in Part 4A)”,
“dwelling (in Part 4A)”,
“flat (in Part 4A)”,
“lease and related expressions (in Part 4A)”,
“proceeds from a balancing event (in Part 4A)”,
“qualifying building (in Part 4A)”,
“qualifying flat (in Part 4A)”,
“relevant interest (in Part 4A)”, and
“residue of qualifying expenditure (in Part 4A)”.
9
In Part 2 of that Schedule, in the entry for “sale, transfers under Parts 3A, 4A and 10 treated as”, omit “, 4A”.
39
In consequence of the provision made by paragraphs 37 and 38 , the following provisions are repealed —
a
in FA 2001, section 67 and Schedule 19,
b
in ITTOIA 2005, paragraphs 559 and 560 of Schedule 1, and
c
in CTA 2009, paragraphs 505 to 507 of Schedule 1.
40
1
The amendments made by paragraphs 37 to 39 have effect —
a
for corporation tax purposes, in relation to chargeable periods beginning on or after 1 April 2013, and
b
for income tax purposes, in relation to chargeable periods beginning on or after 6 April 2013.
2
But see also —
a
paragraph 41 (which deals with the case of a company’s chargeable period for corporation tax purposes straddling 1 April 2013), and
b
paragraph 42 (which saves the continued operation of certain provisions).
41
1
This paragraph applies if, for corporation tax purposes, the chargeable period of a company begins before, and ends on or after, 1 April 2013.
2
The company is entitled only to the relevant proportion of any writing-down allowance for that chargeable period to which it would, but for this paragraph, have been entitled under section 393J of CAA 2001.
3
The relevant proportion is —
A B
where —
A is the number of days in the chargeable period falling before 1 April 2013, and
B is the number of days in the chargeable period.
42
1
Nothing in paragraph 37 or 40(1) is to affect the operation of —
a
section 393I of CAA 2001 (withdrawal of allowance if flat not qualifying flat or if relevant interest sold before flat first let), or
b
sections 393M to 393P of CAA 2001 (balancing adjustments),
for chargeable periods beginning on or after the relevant date in relation to expenditure incurred before that date.
2
The relevant date is —
a
for corporation tax purposes, 1 April 2013, and
b
for income tax purposes, 6 April 2013.
PART 6
Mineral leases or agreements
Income tax
43
1
The following provisions of ITTOIA 2005 (which provide for income tax relief in relation to mineral royalties) are repealed —
a
section 157 (mineral royalties included as receipts of a trade),
b
section 319 (mineral royalties included as receipts of a UK property business), and
c
sections 340 to 343 (mineral royalties receivable in connection with mines, quarries and other concerns).
2
In consequence of the provision made by sub-paragraph (1) —
a
in ITTOIA 2005 —
i
in section 337, omit the entry relating to section 340 (and the “and” before that entry), and
ii
in section 339, omit subsection (3), and
b
in CRCA 2005, in Schedule 4, omit paragraph 132(3)(a).
3
The amendments made by this paragraph have effect in relation to mineral royalties which a person is entitled to receive on or after 6 April 2013.
Corporation tax on income
44
1
The following provisions of CTA 2009 (which provide for corporation tax relief on income in relation to mineral royalties) are repealed —
a
section 135 (mineral royalties included as receipts of a trade),
b
section 258 (mineral royalties included as receipts of a UK property business), and
c
sections 273 to 276 (mineral royalties receivable in connection with mines, quarries and other concerns).
2
In consequence of the provision made by sub-paragraph (1)(c), in section 272 of CTA 2009, omit subsection (3).
3
The amendments made by this paragraph have effect in relation to mineral royalties which a company is entitled to receive on or after 1 April 2013.
Chargeable gains
45
1
Section 201 of TCGA 1992 (mineral leases: royalties) is repealed.
2
In consequence of the provision made by sub-paragraph (1), in section 203 of TCGA 1992 —
a
in subsection (1), for “sections 201 and 202” substitute “section 202”, and
b
in the heading, for “ sections 201 and 202 ” substitute “ section 202 ”.
3
The amendments made by this paragraph have effect —
a
for the purposes of capital gains tax, in relation to mineral royalties which a person is entitled to receive on or after 6 April 2013, and
b
for the purposes of corporation tax in respect of chargeable gains, in relation to mineral royalties which a company is entitled to receive on or after 1 April 2013.
46
1
Section 202 of TCGA 1992 (mineral leases: capital losses) is amended as follows.
2
In subsection (1) —
a
after “currency of a mineral lease or agreement” insert “entered into before the relevant date”, and
b
after “in relation to a mineral lease or agreement” insert “entered into before that date”.
3
After that subsection insert —
1A
For the purposes of this section “the relevant date” means —
a
for the purposes of capital gains tax, 6 April 2013; and
b
for the purposes of corporation tax in respect of chargeable gains, 1 April 2013.
4
In subsection (3), after “termination of a mineral lease or agreement” insert “entered into before the relevant date”.
47
In section 203 of TCGA 1992 (provisions supplementary to sections 201 and 202), in subsection (1), for “as they apply for the interpretation of Chapter 7 of Part 4 of CTA 2009” substitute “(despite their repeal by paragraph 44(1)(c) of Schedule 39 to the Finance Act 2012)”.
PART 7
Miscellaneous
Deeply discounted securities: incidental expenses
48
1
In section 455 of ITTOIA 2005 (listed securities held since 26 March 2003: calculating the profit or loss on disposals) —
a
in subsection (1), after “incurred” insert “before 6 April 2015”, and
b
in subsection (3)(b), after “incurred” insert “before 6 April 2015”.
2
The amendments made by this paragraph have effect for the tax year 2015-16 and subsequent tax years.
Grants for giving up agricultural land
49
1
Section 249 of TCGA 1992 (grants for giving up agricultural land) is repealed.
2
Accordingly, the italic heading before that section becomes “ Woodlands ”.
3
The amendments made by this paragraph have effect in relation to disposals made on or after 6 April 2013.
Reduction for meal vouchers
50
1
Section 89 of ITEPA 2003 (reduction for meal vouchers) is repealed.
2
Accordingly, in that Act —
a
in section 87 (benefit of non-cash voucher treated as earnings), omit subsection (6), and
b
in Schedule 7 (transitionals and savings), omit paragraph 18.
3
The amendments made by this paragraph have effect for the tax year 2013-14 and subsequent tax years.
Black beer
51
1
ALDA 1979 is amended as follows.
2
In section 1 (alcoholic liquors dutiable under ALDA 1979) —
a
in subsection (3), omit from “, but” to the end of the subsection, and
b
in subsection (5), omit “black beer,”.
3
In section 4(1) (interpretation), omit the definition of “black beer”.
4
In section 55(5)(b) (made-wine: exception to requirement for excise licence), omit “or black beer”.
5
The amendments made by sub-paragraphs (2) and (3) come into force on 1 April 2013.
6
The amendment made by sub-paragraph (4) has effect in relation to the use on or after 1 April 2013 of ingredients that include black beer.
Angostura bitters
52
1
In ALDA 1979, omit —
a
section 1(7) (angostura bitters deemed not to be spirits), and
b
section 6 (power to exempt angostura bitters from duty).
2
In Schedule 5 to FA 1994 (decisions subject to review and appeal), omit paragraph 3(1)(a).
3
The amendments made by this paragraph come into force on 1 April 2013.
Tax reserve certificates
53
1
The following provisions are repealed —
a
section 750 of ITTOIA 2005 (interest from tax reserve certificates);
b
section 1283 of CTA 2009 (interest from tax reserve certificates).
2
In consequence of the provision made by sub-paragraph (1), in section 369 of ITTOIA 2005 (charge to tax on interest), in subsection (3)(e), omit “tax reserve certificates,”.
3
The repeals made by sub-paragraphs (1)(a) and (2) have effect in relation to tax reserve certificates redeemed on or after 6 April 2013.
4
The repeal made by sub-paragraph (1)(b) has effect in relation to tax reserve certificates redeemed on or after 1 April 2013.
Tax assessors
54
1
Section 62(2) and (3) of FA 1946 (compensation for former land tax assessors and income tax assessors, etc) is repealed.
2
In consequence of the provision made by sub-paragraph (1), in Schedule 2 to the Pensions (Increase) Act 1971 (official pensions), in paragraph 34, omit “or section 62 of the Finance Act 1946”.
3
The amendments made by this paragraph come into force on 6 April 2013. |
The Plant Health (Import Inspection Fees) (England) (Amendment) Regulations 2012
The Secretary of State, with the consent of the Treasury, makes these Regulations in exercise of the powers conferred by section 56(1) and (2) of the Finance Act 1973 .
Title and commencement
1
These Regulations —
a
may be cited as the Plant Health (Import Inspection Fees) (England) (Amendment) Regulations 2012; and
b
come into force on 13th February 2012.
Amendment of the Plant Health (Import Inspection Fees) (England) Regulations 2010
2
For Schedule 2 to the Plant Health (Import Inspection Fees) (England) Regulations 2010 , substitute —
SCHEDULE 2
Import Inspection Fees (Reduced Rates)
Regulation 4(1)(a)(ii) and (2)(b)
Column 1
Genus
Column 2
Quantity
Column 3
Country of Origin
Column 4
Fee for each consignment (daytime working hours) (£)
Column 5
Fee for each consignment (non-daytime working hours) (£)
Cut Flowers Dianthus — up to 20,000 in number Colombia 0.71 1.06 Ecuador 1.42 2.14 Kenya 0.71 1.06 Turkey 3.57 5.35 — for each additional 1,000 units or part thereof Colombia 0.005
Up to a maximum of 5.71
0.007
Up to a maximum of 8.56
Ecuador 0.01
Up to a maximum of 11.42
0.02
Up to a maximum of 17.13
Kenya 0.005
Up to a maximum of 5.71
0.007
Up to a maximum of 8.56
Turkey 0.03
Up to a maximum of 28.57
0.04
Up to a maximum of 42.85
Rosa — up to 20,000 in number Colombia 0.42 0.63 Ecuador 0.42 0.63 Ethiopia 0.71 1.06 Kenya 0.71 1.06 Tanzania 1.42 2.13 Uganda 3.57 5.35 Zambia 3.57 5.35 — for each additional 1,000 units or part thereof Colombia 0.003
Up to a maximum of 3.42
0.004
Up to a maximum of 5.13
Ecuador 0.003
Up to a maximum of 3.42
0.004
Up to a maximum of 5.13
Ethiopia 0.005
Up to a maximum of 5.71
0.007
Up to a maximum of 8.56
Kenya 0.005
Up to a maximum of 5.71
0.007
Up to a maximum of 8.56
Tanzania 0.01
Up to a maximum of 11.42
0.02
Up to a maximum of 17.13
Uganda 0.02
Up to a maximum of 28.57
0.03
Up to a maximum of 42.85
Zambia 0.02
Up to a maximum of 28.57
0.03
Up to a maximum of 42.85
Citrus — up to 25,000 kg in weight Egypt 2.14 3.21 Israel 1.42 2.14 Mexico 2.14 3.21 Morocco 0.71 1.06 Peru 3.57 5.35 Turkey 0.42 0.63 Uruguay 2.14 3.21 USA 2.14 3.21 — for each additional 1,000 kg or part thereof Egypt 0.08 0.12 Israel 0.05 0.08 Mexico 0.08 0.12 Morocco 0.02 0.03 Peru 0.14 0.21 Turkey 0.01 0.02 Uruguay 0.08 0.12 USA 0.08 0.12 Malus — up to 25,000 kg in weight Argentina 1.42 2.13 Brazil 2.14 3.21 Chile 0.71 1.07 China 7.14 10.71 New Zealand 1.42 2.13 South Africa 0.71 1.07 USA 3.57 5.35 — for each additional 1,000 kg or part thereof Argentina 0.05 0.08 Brazil 0.08 0.12 Chile 0.02 0.04 China 0.28 0.42 New Zealand 0.05 0.08 South Africa 0.02 0.04 USA 0.14 0.21 Passiflora — up to 25,000 kg in weight Columbia 1.42 2.13 Kenya 1.42 2.13 South Africa 7.14 10.71 Zimbabwe 4.99 7.48 — for each additional 1,000 kg or part thereof Columbia 0.05 0.08 Kenya 0.05 0.08 South Africa 0.28 0.42 Zimbabwe 0.19 0.28 Phoenix — up to 100 kg in weight Costa Rica 4.99 7.49 — for each additional 100 kg or part thereof Costa Rica 0.49
Up to a maximum of 39.98
0.74
Up to a maximum of 59.97
Prunus — up to 25,000 kg in weight Argentina 4.99 7.48 Chile 1.42 2.13 South Africa 1.42 2.13 Turkey 1.42 2.13 USA 1.42 2.13 — for each additional 1,000 kg or part thereof Argentina 0.19 0.28 Chile 0.05 0.08 South Africa 0.05 0.08 Turkey 0.05 0.08 USA 0.05 0.08 Pyrus — up to 25,000 kg in weight Argentina 1.42 2.13 Chile 3.57 5.35 China 4.99 7.48 South Africa 1.42 2.13 — for each additional 1,000 kg or part thereof Argentina 0.05 0.08 Chile 0.14 0.21 China 0.19 0.28 South Africa 0.05 0.08 Solanummelongena — up to 25,000 kg in weight Turkey 1.42 2.13 — for each additional 1,000 kg or part thereof Turkey 0.05 0.08
.
Taylor of Holbeach
Parliamentary Under Secretary of State
Department for Environment, Food and Rural Affairs
14th December 2011
We consent
Michael Fabricant
Brooks Newmark
Two of the Lords Commissioners of Her Majesty’s Treasury
12th January 2012 |
The Excise Duties (Road Fuel Gas) (Reliefs) Regulations 2012
The Commissioners for Her Majesty’s Revenue and Customs make the following Regulations in exercise of the powers conferred by section 20AA(1)(a) and (2)(a), (b), (c), and (h) of the Hydrocarbon Oil Duties Act 1979 :
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Excise Duties (Road Fuel Gas) (Reliefs) Regulations 2012.
2
These Regulations come into force on 1st January 2013 and only have effect in relation to road fuel gas that is charged with duty on or after that date.
3
In these Regulations, “duty” means the duty of excise charged by section 8(1) or (2) of the Hydrocarbon Oil Duties Act 1979 .
Relief
2
Relief from duty is allowed as follows —
a
in the case of natural road fuel gas, £0.0437 a kilogram is remitted; and
b
in the case of any other road fuel gas, £0.0573 a kilogram is remitted.
Jim Harra
Jennie Grainger
Two of the Commissioners for Her Majesty’s Revenue and Customs
7th December 2012 |
The Health Act 2009 (Commencement No. 6) Order 2012
The Secretary of State for Health makes the following Order in exercise of the powers conferred by section 40(1) of the Health Act 2009 .
Citation
1
This Order may be cited as the Health Act 2009 (Commencement No. 6) Order 2012.
Appointed day
2
31st October 2012 is the day appointed for the coming into force of the following provisions of the Health Act 2009 —
a
section 38 (repeals and revocations), in so far as it relates to the repeals mentioned in paragraph (b); and
b
the entries in Schedule 6 (repeals and revocations) that relate to the Tobacco Advertising and Promotion Act 2002 , in so far as not already in force.
Signed by authority of the Secretary of State for Health.
Anna Soubry
Parliamentary Under-Secretary of State
Department of Health
19th October 2012 |
The Flexible Tenancies (Review Procedures) Regulations 2012
The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 107B(6) and 107E(4) of the Housing Act 1985 :
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Flexible Tenancies (Review Procedures) Regulations 2012 and come into force on 1st April 2012.
2
In these Regulations —
a
“ the Act ” means the Housing Act 1985;
b
“applicant” means a person who has requested a review;
c
“landlord” means a person to whom a request for review is made;
d
“original decision” means a decision of the kind referred to in section 107B(2) or 107E(1) of the Act;
e
“review” means a review of the kind referred to in section 107B(2) (Review of decisions relating to flexible tenancies) or 107E(1) (Review of decision to seek possession) of the Act.
Application
2
An application for a review must be made in writing and must include —
a
the applicant’s name and address;
b
a description of the original decision in respect of which the review is sought including the date on which the decision was made;
c
if the review is requested pursuant to s107B of the Act, a statement of the reasons why, in the applicant’s opinion, the length of the tenancy does not accord with a policy of the landlord as to the length of the terms of the flexible tenancies it grants;
d
in any other case, a statement of the grounds on which the review is sought;
e
a statement to the effect that the applicant does, or does not, require the review to be conducted by way of an oral hearing;
f
a statement to the effect that the applicant does, or does not, agree to receive communications relating to the review by email, and if the former, the email address to which such communications should be sent.
Right to a hearing
3
1
Where an application includes a statement to the effect that the applicant requires the review to be conducted by way of an oral hearing, the review must be conducted in accordance with regulations 6 to 10.
2
In any other case, the review must be conducted in accordance with regulation 5.
Communications
4
1
Where an application includes a statement to the effect that the applicant agrees to receive communications relating to the review by email any notice, document or other communication sent in connection with the review by the landlord by email to the email address referred to in regulation 2(f) is to be taken as having been received by the applicant at the time the email is sent to that address.
2
In any other case, a notice, document or other communication sent in connection with the review by the landlord is to be taken as having been received by the applicant when it is —
a
given to the applicant in person;
b
sent by the landlord by first class post to the address referred to in regulation 2(a); or
c
delivered by hand to the address referred to in regulation 2(a).
Review without a hearing
5
1
Where regulation 3(2) applies, the landlord must send a written notice to the applicant stating that the applicant may make written representations in support of the application before a time specified in the notice.
2
The time specified pursuant to paragraph (1) must not be earlier than five days after the day on which the notice referred to in that paragraph is received by the applicant.
3
In making a decision on the review the person conducting the review must take into account any representations received in accordance with this regulation.
4
The review must be conducted by a person appointed for that purpose by the landlord, who may be an officer or employee of the landlord.
5
A person appointed under paragraph (4) who is an officer or employee of the landlord must be a person of greater seniority than the person who made the original decision.
6
The person referred to in paragraph (4) must not be a person who was involved in the making of the original decision.
Review by way of a hearing
6
1
Where regulation 3(1) applies the landlord must send a written notice to the applicant stating the day on which, and the time and place at which it is proposed that the oral hearing is to take place.
2
The day referred to in paragraph (1) must not be earlier than five days after the day on which the notice referred to in that paragraph is received by the applicant.
3
If at any time before the day on which the hearing is due to take place the applicant so requests, the landlord may postpone the hearing to a later date.
4
The date referred to in paragraph (3) must be no earlier than five days after the day on which the applicant receives notice in writing from the landlord of the new hearing date.
Procedure at hearing
7
1
The hearing must be conducted by a person appointed for that purpose by the landlord, who may be an officer or employee of the landlord.
2
A person appointed under paragraph (1) who is an officer or employee of the landlord must be a person of greater seniority than the person who made the original decision.
3
The person referred to in paragraph (1) must not be a person who was involved in the making of the original decision.
4
The hearing must be conducted with the minimum amount of formality and in accordance with any directions given by the person conducting it.
5
At the hearing the applicant may —
a
make oral or written representations relevant to the decision to be made on the review;
b
be accompanied or represented by another person appointed by the applicant for that purpose (whether that person is professionally qualified or not);
c
call persons to give evidence on any matter relevant to the decision to be made on the review; and
d
put questions to any person who gives evidence at the hearing.
6
The person who made the original decision may attend the hearing and may do any of the things the applicant may do pursuant to paragraph (5).
7
A person appointed as a representative pursuant to paragraph (5)(b) has the same rights and obligations as the applicant (or, as the case may be, the person who made the original decision) for the purposes of the conduct of the hearing.
Absence of applicant at hearing
8
If the applicant fails to attend the hearing, the person conducting it may, having regard to all the circumstances (including any explanation offered for the absence) proceed with the hearing or give such directions with a view to the further conduct of the review as that person may think appropriate.
Adjournment of hearing
9
1
The hearing may be adjourned by the person conducting it (on the application of the applicant or otherwise).
2
Where the hearing is adjourned for more than one day, the person conducting it must specify a date on which the hearing is to be resumed by sending a notice in writing to that effect to the applicant and any other person whose attendance is required at the resumed hearing.
Decision on review
10
Where regulation 3(1) applies the decision on the review must be made by the person who conducted the hearing.
Signed by the authority of the Secretary of State for Communities and Local Government
Grant Shapps
Minister of State
Department for Communities and Local Government
5th March 2012 |
The Cumbria (Electoral Changes) Order 2012
The Local Government Boundary Commission for England has decided to give effect to the recommendations for electoral changes and in exercise of the powers conferred by section 59(1) of the 2009 Act makes the following Order:
Citation
1
This Order may be cited as the Cumbria (Electoral Changes) Order 2012.
Commencement
2
1
Articles 1 to 4 come into force —
a
for the purpose of proceedings preliminary or relating to the elections of councillors for county electoral divisions, on the day after that on which it is made;
b
for all other purposes, on the ordinary day of election of councillors in 2013.
2
Article 8 comes into force —
a
for the purpose of proceedings preliminary or relating to the elections of parish councillors, on 15th October 2013;
b
for all other purposes, on the ordinary day of election of councillors in 2014.
3
Articles 5 to7, 9 to 12 and 14 come into force —
a
for the purpose of proceedings preliminary or relating to the elections of parish councillors, on 15th October 2014;
b
for all other purposes, on the ordinary day of election of councillors in 2015.
4
Article 13 comes into force —
a
for the purposes of proceedings preliminary or relating to the elections of parish councillors, on 15th October 2015;
b
for all other purposes, on the ordinary day of election of councillors in 2016.
Interpretation
3
In this Order —
“map” means the map marked “Map referred to in the Cumbria (Electoral Changes) Order 2012”, of which prints are available for inspection at the principal office of the Local Government Boundary Commission for England;
“ordinary day of election of councillors” has the meaning given by section 37 of the Representation of the People Act 1983 .
Electoral divisions of the county of Cumbria and number of councillors
4
1
The existing electoral divisions of the county of Cumbria are abolished.
2
The county is divided into eighty-four electoral divisions each bearing a name listed in the Schedule.
3
Each electoral division comprises the area designated on the map by reference to the name of the electoral division.
4
One councillor is to be elected for each electoral division.
5
Where a boundary is shown on the map as running along a road, railway line, footway, watercourse or similar geographical feature, it is to be treated as running along the centre line of the feature.
Wards of the parish of Cleator Moor and number of councillors
5
1
The existing wards of the parish of Cleator Moor are abolished.
2
The parish is divided into three wards named respectively —
a
Cleator Moor East;
b
Cleator Moor North;
c
Cleator Moor South.
3
Each ward comprises the area designated on the map by reference to the name of the ward.
4
Five councillors are to be elected for each of the following wards:
a
Cleator Moor North;
b
Cleator Moor South.
5
Two councillors are to be elected for Cleator Moor East ward.
Wards of the parish of Cockermouth and number of councillors
6
1
The existing wards of the parish of Cockermouth are abolished.
2
The parish is divided into five wards named respectively —
a
All Saints;
b
Christchurch;
c
Double Mills;
d
Fitz;
e
South Lodge.
3
Each ward comprises the area designated on the map by reference to the name of the ward.
4
Four councillors are to be elected for All Saints ward.
5
Three councillors are to be elected for Christchurch ward.
6
Two councillors are to be elected for each of the following wards:
a
Double Mills;
b
South Lodge.
7
One councillor is to be elected for Fitz ward.
Wards of the parish of Egremont and number of councillors
7
1
The existing wards of the parish of Egremont are abolished.
2
The parish is divided into four wards named respectively —
a
Egremont Central;
b
Egremont East;
c
Egremont North;
d
Egremont South.
3
Each ward comprises the area designated on the map by reference to the name of the ward.
4
Four councillors are to be elected for Egremont South ward.
5
Three councillors are to be elected for Egremont North ward.
6
Two councillors are to be elected for Egremont Central ward.
7
One councillor is to be elected for Egremont East ward.
Wards of the parish of Kendal and number of councillors
8
1
The existing wards of the parish of Kendal are abolished.
2
The parish is divided into sixteen wards named respectively —
a
Kendal Castle;
b
Kendal Far Cross;
c
Kendal Fell;
d
Kendal Heron Hill;
e
Kendal Highgate;
f
Kendal Kirkland;
g
Kendal Mintsfeet;
h
Kendal Natland;
i
Kendal Nether;
j
Kendal Oxenholme;
k
Kendal Parks;
l
Kendal Romney;
m
Kendal Stainbank;
n
Kendal Stonecross;
o
Kendal Strickland;
p
Kendal Underley.
3
Each ward comprises the area designated on the map by reference to the name of the ward.
4
Two councillors are to be elected for each of the following wards:
a
Kendal Castle;
b
Kendal Far Cross;
c
Kendal Fell;
d
Kendal Heron Hill;
e
Kendal Highgate;
f
Kendal Kirkland;
g
Kendal Mintsfeet;
h
Kendal Nether;
i
Kendal Parks;
j
Kendal Stonecross;
k
Kendal Strickland;
l
Kendal Underley.
5
One councillor is to be elected for each of the following wards:
a
Kendal Natland;
b
Kendal Oxenholme;
c
Kendal Romney;
d
Kendal Stainbank.
Wards of the parish of Maryport and number of councillors
9
1
The existing wards of the parish of Maryport are abolished.
2
The parish is divided into seven wards named respectively —
a
Brooklands;
b
Ellenborough;
c
Ellenfoot;
d
Ewanrigg;
e
Flimby;
f
Glasson;
g
Netherhall.
3
Each ward comprises the area designated on the map by reference to the name of the ward.
4
Five councillors are to be elected for Ewanrigg ward.
5
Four councillors are to be elected for Netherhall ward.
6
Three councillors are to be elected for each of the following wards:
a
Ellenborough;
b
Flimby
7
One councillor is to be elected for each of the following wards:
a
Brooklands;
b
Ellenfoot;
c
Glasson.
Wards of the parish of Millom and number of councillors
10
1
The existing wards of the parish of Millom are abolished.
2
The parish is divided into three wards named respectively —
a
Haverigg;
b
Holborn Hill;
c
Newtown.
3
Each ward comprises the area designated on the map by reference to the name of the ward.
4
Seven councillors are to be elected for Newtown ward.
5
Five councillors are to be elected for Holborn Hill.
6
Three councillors are to be elected for Haverigg ward.
Wards of the parish of St Cuthbert Without and number of councillors
11
1
The parish of St Cuthbert is divided into four wards named respectively —
a
Garlands;
b
Huntsman;
c
St Cuthbert Without;
d
Watermans.
2
Each ward comprises the area designated on the map by reference to the name of the ward.
3
Eight councillors are to be elected for St Cuthbert Without ward.
4
Five councillors are to be elected for Garlands ward.
5
One councillor is to be elected for each of the following wards:
a
Huntsman;
b
Watermans.
Wards of the parish of Stanwix Rural and number of councillors
12
1
The existing wards of the parish of Stanwix Rural are abolished.
2
The parish is divided into five wards named respectively —
a
Crosby and Linstock;
b
Houghton;
c
Pennington;
d
Vallum;
e
Wolsty.
3
Each ward comprises the area designated on the map by reference to the name of the ward.
4
Eight councillors are to be elected for Houghton ward.
5
Four councillors are to be elected for Crosby and Linstock ward.
6
One councillor is to be elected for each of the following wards:
a
Pennington;
b
Vallum;
c
Wolsty.
Wards of the parish of Wetheral and number of councillors
13
1
The existing wards of the parish of Wetheral are abolished.
2
The parish is divided into six wards named respectively —
a
Aglionby;
b
Cumwhinton;
c
Durranhill;
d
Great Corby;
e
Scotby;
f
Wetheral.
3
Each ward comprises the area designated on the map by reference to the name of the ward.
4
Three councillors are to be elected for each of the following wards:
a
Aglionby;
b
Cumwhinton;
c
Great Corby;
d
Wetheral.
5
Two councillors are to be elected for each of the following wards:
a
Scotby.
6
One councillor is to be elected for each of the following wards:
a
Durranhill;
Wards of the parish of Workington and number of councillors
14
1
The existing wards of the parish of Workington are abolished.
2
The parish is divided into eleven wards named respectively —
a
Ellerbeck;
b
Harrington;
c
Iredale;
d
Moorclose;
e
Moss Bay;
f
Northside;
g
St John’s;
h
St Joseph’s;
i
St Michael’s;
j
Salterbeck;
k
Stainburn.
3
Each ward comprises the area designated on the map by reference to the name of the ward.
4
Six councillors are to be elected for each of the following wards:
a
Moorclose;
b
St Michael’s.
5
Four councillors are to be elected for Salterbeck ward.
6
Three councillors are to be elected for each of the following wards:
a
Harrington;
b
St John’s.
7
Two councillors are to be elected for each of the following wards:
a
Moss Bay;
b
Stainburn.
8
One councillor is to be elected for each of the following wards:
a
Ellerbeck;
b
Iredale;
c
Northside;
d
St Joseph’s.
Sealed with the seal of the Local Government Boundary Commission for England on the 17th day of December 2012
Max Caller
Chairman
Local Government Boundary Commission for England
17th December 2012
SCHEDULE
Names of county electoral divisions
Article 4
In Allerdale Borough: Aspatria Bothel and Wharrels Cockermouth North Cockermouth South Dearham and Broughton Harrington Keswick Maryport North Maryport South Moss Bay and Moorclose Seaton St. John’s and Great Clifton St. Michael’s Solway Coast Thursby Wigton In Barrow-in-Furness Borough: Dalton North Dalton South Hawcoat Hindpool Newbarns and Parkside Old Barrow Ormsgill Risedale Roosecote Walney North Walney South In Carlisle City: Belah Belle Vue Botcherby Brampton Castle Corby and Hayton Currock Dalston and Burgh Denton Holme Harraby North Harraby South Houghton and Irthington Longtown Morton Stanwix Urban Upperby Wetheral Yewdale In Copeland Borough: Bransty Cleator Moor East and Frizington Cleator Moor West Egremont Egremont North and St Bees Gosforth Hillcrest and Hensingham Howgate Kells and Sandwith Millom Millom Without Mirehouse In Eden District: Alston and East Fellside Appleby Eden Lakes Greystoke and Hesket Kirkby Stephen Penrith East Penrith North Penrith Rural Penrith West In South Lakeland District: Cartmel Grange High Furness Kendal Castle Kendal Highgate Kendal Nether Kendal South Kendal Strickland and Fell Kent Estuary Lakes Low Furness Lower Kentdale Lyth Valley Sedbergh and Kirkby Lonsdale Ulverston East Ulverston West Upper Kent Windermere |
The NHS Commissioning Board Authority (Abolition and Transfer of Staff, Property and Liabilities) and the Health and Social Care Act 2012 (Consequential Amendments) Order 2012
The Secretary of State has consulted such bodies as the Secretary of State has recognised as representing officers who, in the Secretary of State’s opinion, are likely to be transferred, or affected by transfer, in pursuance of Part 2 of this Order .
PART 1 General
Citation, commencement and extent
1
1
This Order may be cited as the NHS Commissioning Board Authority (Abolition and Transfer of Staff, Property and Liabilities) and the Health and Social Care Act 2012 (Consequential Amendments) Order 2012.
2
This Order comes into force —
a
for the purposes of article 10 and Schedule 4, on 1st October 2012; and
b
for all other purposes, immediately after the coming into force of section 1H(1) of the National Health Service Act 2006 .
3
Subject to paragraph (4), this Order extends to England and Wales only.
4
Any amendment made by Part 3 of this Order has the same extent as the provision amended.
5
The following provisions apply in relation to England only —
a
articles 2 to 8 and Schedule 2;
b
paragraphs 2, 3, 15, 16 and 17 of Schedule 3; and
c
paragraphs 2, 4, 6 to 8, 11, 12, 16, 21, 22 and 23 of Schedule 4.
PART 2 Abolition of the NHS Commissioning Board Authority
Interpretation
2
In this Part —
“ the Act ” means the National Health Service Act 2006;
“ the Authority ” means the NHS Commissioning Board Authority established under article 2 of the NHS Commissioning Board Authority (Establishment and Constitution) Order 2011 ;
“ the Board ” means the National Health Service Commissioning Board ; and
“the transfer date” means the date on which this Part comes into force by virtue of article 1(2).
Abolition of the Authority
3
The Authority is abolished.
Transfer of staff to the Board
4
1
This paragraph applies to any person who —
a
immediately before the transfer date is employed by the Authority; and
b
has been notified in writing by the Authority prior to the transfer date that they are to be transferred to the Board.
2
Any person to whom paragraph (1) applies is, on the transfer date, to be transferred to the employment of the Board.
3
The contract of employment of a person whose employment has transferred to the Board under paragraph (2) —
a
is not terminated by that transfer; and
b
has effect from the transfer date as if originally made between that person and the Board.
4
Without prejudice to paragraph (3) —
a
all the rights, powers, duties and liabilities of the Authority under, or in connection with, the contract of employment of any person whose employment transferred to the Board on the transfer date under paragraph (2), are to transfer to the Board; and
b
any act or omission before the transfer date by, or in relation to, the Authority, in respect of that person or that person’s contract of employment, is deemed to have been an act or omission of, or in relation to, the Board.
5
Paragraphs (2) to (4) do not have effect to transfer the contract of employment of a person to whom paragraph (1) applies, or any rights, powers, duties and liabilities under, or in connection with, that contract, if, before the transfer date, that person informs the Authority that they object to becoming employed by the Board.
6
Where a person to whom paragraph (1) applies has objected to the transfer of that person’s contract of employment to the Board as described in paragraph (5), the transfer operates so as to terminate that person’s contract of employment with the Authority.
7
Subject to paragraph (8), a person whose contract of employment is terminated in accordance with paragraph (6) is not to be treated, for any purpose, as having been dismissed by the Authority.
8
Where the transfer involves or would involve a substantial change in the working conditions to the material detriment of a person whose employment is or would have transferred under paragraph (2), that person may treat the contract of employment as having been terminated, and that person is to be treated for any purpose as having been dismissed.
9
No damages are to be payable by the Authority or the Board as a result of a dismissal falling within paragraph (8) in respect of any failure by the Authority or the Board to pay wages to a person in respect of a notice period which the person has failed to work.
10
Paragraphs (2), (3) and (5) to (8) are without prejudice to any right of a person arising apart from this article to terminate that person’s contract of employment without notice in acceptance of a repudiatory breach of contract by the employer.
Transfer of property and liabilities
5
1
Any property held by the Authority immediately before the transfer date which is identified in Schedule 1 is to transfer, on the transfer date, to the Board.
2
Any other property (including assets, whether tangible or intangible) which is held by the Authority immediately before the transfer date which is not referred to in paragraph (1) is to transfer, on the transfer date, to the Board.
3
All liabilities of the Authority relating to property held by the Authority immediately before the transfer date are to transfer, on the transfer date, to the Board.
4
Any right relating to property held by the Authority immediately before the transfer date that was enforceable by or against the Authority before the transfer date is, on or after that date, to be enforceable by or against the Board.
Transfer of other liabilities and winding up of affairs
6
1
On the transfer date, all liabilities of the Authority not mentioned in articles 4 and 5 are to transfer to the Board.
2
In paragraph (1) “liabilities” —
a
includes the obligation of the Authority to prepare —
i
accounts in accordance with Schedule 15 to the Act in respect of the period beginning 1st April 2012 and ending on the transfer date, and
ii
a report to the Secretary of State under regulation 14 of the NHS Commissioning Board Authority Regulations 2011 in respect of the exercise by the Authority of its functions during that period; and
b
does not include any liability in tort in respect of any claim for damages for death or personal injury caused or alleged to have been caused before the transfer date.
3
Any liability in tort in respect of any claim for damages for death or personal injury caused or alleged to have been caused before the transfer date is to transfer, on the transfer date, to the Secretary of State.
4
For the purposes of paragraph (2)(a)(ii), regulation 14 of the NHS Commissioning Board Authority Regulations 2011 is to remain in force.
5
The Board must take such action as may be necessary for the winding up of the affairs of the Authority.
Supplementary provision
7
1
Any act or omission by, or in relation to, the Authority before the transfer date in respect of —
a
the exercise of any functions of the Authority ;
b
under or in connection with any contract or agreement entered into by the Authority; or
c
in connection with any property or liabilities of the Authority transferred under this Order,
is deemed to have been an act or omission of, or in relation to, the Board.
2
Anything (which may include legal proceedings) which, when this Order takes effect, is in the process of being done by, or in relation to, the Authority in respect of, or in connection with —
a
the exercise by the Authority of any of its functions; or
b
any property or liabilities of the Authority transferred under this Order,
is deemed to have effect as if done by, or in relation to, and may be continued by, or in relation to, the Board.
3
Any reference to the Authority in any agreement (whether written or not), instrument or other document in connection with any functions of the Authority or any property or liabilities transferred under this Order is to be treated as a reference to the Board.
4
No right to terminate or vary a contract, arrangement or instrument is to operate or become exercisable, and no provision of any contract, arrangement or instrument is to operate or become exercisable or be contravened, by reason of the transfer of any property and liabilities under or by virtue of this Order.
5
The transfers of any property, rights and liabilities provided for by this Order are to be made —
a
irrespective of any requirement for consent that would otherwise apply (whether arising under any enactment, instrument, agreement or otherwise); and
b
whether or not they would otherwise be capable of being transferred.
Amendments and revocations consequential on the abolition of the Authority
8
The amendments and revocations in Schedule 2 have effect.
PART 3 Amendments to subordinate legislation consequential on the provisions of the Health and Social Care Act 2012 relating to the National Health Service Commissioning Board and clinical commissioning groups and Monitor
Amendments consequential on provisions relating to the establishment of the National Health Service Commissioning Board and clinical commissioning groups
9
The amendments in Schedule 3 have effect.
Amendments consequential on provisions relating to Monitor
10
The amendments in Schedule 4 have effect.
Signed by authority of the Secretary of State for Health.
Earl Howe
Parliamentary Under-Secretary of State,
Department of Health
21st June 2012
SCHEDULE 1
Property and liabilities transferring to the Board
Part 2, article 5(1)
Furniture, fittings, plant, equipment and machinery
1
1
The property and liabilities which the Authority has in relation to the items specified in sub-paragraph (2) are to transfer to the Board on the transfer date.
2
The items referred to in sub-paragraph (1) are —
a
all computers, mobile telephones, data cards and electronic instruments;
b
all software, data and hardware relating to the National Reporting and Learning System or to the performance by the Authority of any of its functions;
c
all office furniture, including desks, chairs and filing cabinets;
d
all goods, stocks, inventory, stores and raw materials used by or in connection with, or otherwise attributable, to the functions of the Authority;
e
all assets, whether tangible or intangible, purchased through money supplied by the Department of Health in relation to the Authority’s work in preparing for the establishment of the Board.
Contracts and agreements
2
1
The property and liabilities which the Authority has in relation to the contracts and agreements specified in sub-paragraph (2) are to transfer to the Board on the transfer date.
2
The contracts and agreements referred to in sub-paragraph (1) are —
a
all operating leases and maintenance contracts for cars, photocopiers, printers and other electronic equipment used by the Authority;
b
all policies of insurance taken out and maintained by the Authority in relation to any of the functions of the Authority; and
c
all other contracts, agreements, arrangements, engagements, assignments and orders which relate to any of the functions of the Authority.
Intellectual property and records
3
1
The intellectual property and liabilities which the Authority has in relation to the items specified in sub-paragraph (2) are to transfer to the Board on the transfer date.
2
The items referred to in sub-paragraph (1) are —
a
all books, records and other documents created or held by the Authority (including any documents or records that are kept by means of a computer or other electronic device) including —
i
employment records and other data relating to staff employed by the Authority at any time before the transfer date,
ii
financial records,
iii
records relating to the performance by the Authority of the patient safety function or the NRLS oversight function ,
iv
records relating to policy making;
b
all software and IT systems relating to the performance by the Authority of any of its functions;
c
all general correspondence; and
d
all domain names registered by the Authority in respect of the Authority or the Board.
SCHEDULE 2
Amendments and revocations consequential on the abolition of the Authority
Part 2, article 8
The National Health Service Trusts (Membership and Procedure) Regulations 1990
1
In regulation 11(5) of the National Health Service (Membership and Procedure) Regulations 1990 (disqualification for appointment of chairman and non-executive directors), omit sub-paragraph (i).
The Primary Care Trusts (Membership, Procedure and Administration Arrangements) Regulations 2000
2
In Schedule 1 to the Primary Care Trusts (Membership, Procedure and Administration Arrangements) Regulations 2000 (Special Health Authorities of which the Chairman and Members are not disqualified under regulation 5(1)(e)), omit “NHS Commissioning Board Authority”.
The NHS Commissioning Board Authority (Establishment and Constitution) Order 2011
3
The NHS Commissioning Board Authority (Establishment and Constitution) Order 2011 is revoked.
The NHS Commissioning Board Authority Regulations 2011
4
The NHS Commissioning Board Authority Regulations 2011 are revoked save as kept in force by article 6(4).
SCHEDULE 3
Amendments consequential on the establishment of the National Health Service Commissioning Board and clinical commissioning groups
Part 3, article 9
The National Health Service Trusts (Membership and Procedure) Regulations 1990
1
1
The National Health Service Trusts (Membership and Procedure) Regulations 1990 are amended as follows.
2
In regulation 1(2) (interpretation), in the definition of “health service body” —
a
in paragraph (a), after “Special Health Authority,” insert “a clinical commissioning group,”; and
b
after paragraph (b), insert —
ba
the National Health Service Commissioning Board;
.
3
In regulation 11(1) (disqualification for appointment of chairman and non-executive directors) —
a
for sub-paragraph (d), substitute —
d
he is a person whose tenure of office as the chairman, a member, a director or a governor of a health service body other than a clinical commissioning group has been terminated on the grounds —
i
that it was not in the interests of the health service body or of the health service that he should continue to hold the office,
ii
of non-attendance at meetings,
iii
of non-disclosure of a pecuniary interest, or
iv
of misbehaviour, misconduct or failure to carry out his duties;
;
b
after sub-paragraph (d), insert —
da
he is a person who has been removed from office as the chair or a member of the governing body of a clinical commissioning group;
;
c
in sub-paragraph (e), before “an NHS foundation trust” insert “a clinical commissioning group or”; and
d
after sub-paragraph (e) insert —
ea
he is a person who is the chair or a member of the governing body of a clinical commissioning group, or an employee of such a group;
.
4
For regulation 11(3), substitute —
3
For the purposes of paragraph (1)(c), a person shall not be treated as having been in paid employment by reason only of having been —
a
in the case of an NHS foundation trust, the chairman, a governor or a non-executive director of the trust;
b
in the case of a clinical commissioning group, the chair or a member of the governing body of the group; or
c
in the case of any other health service body, the chairman, a member or a director of the health service body in question.
.
The National Health Service Litigation Authority Regulations 1995
2
1
The National Health Service Litigation Authority Regulations 1995 are amended as follows.
2
In regulation 1(2) (interpretation), in the definition of “health service body”, after “Special Health Authority,” insert “the National Health Service Commissioning Board, a clinical commissioning group,”.
3
In regulation 7(1) (disqualification for appointment) —
a
for sub-paragraph (d), substitute —
d
he is a person whose tenure of office as the chairman, a member, a director or a governor of a health service body other than a clinical commissioning group has been terminated on the grounds —
i
that it was not in the interests of the health service body or of the health service that he should continue to hold the office,
ii
of non-attendance at meetings,
iii
of non-disclosure of a pecuniary interest, or
iv
of misbehaviour, misconduct or failure to carry out his duties;
;
b
after sub-paragraph (d) insert —
da
he is a person who has been removed from office as the chair or a member of the governing body of a clinical commissioning group;
; and
c
in sub-paragraph (e), for “or an NHS trust” substitute “, an NHS trust or the National Health Service Commissioning Board or the chair or a member of the governing body of a clinical commissioning group”.
4
For regulation 7(3) (disqualification for appointment – paid employment) substitute —
4
For the purposes of paragraph (1)(c), a person shall not be treated as having been in paid employment by reason only of having been —
a
in the case of an NHS foundation trust, the chairman, a governor or a non-executive director of the trust;
b
in the case of a clinical commissioning group, the chair or a member of the governing body of the group; or
c
in the case of any other health service body, the chairman, a member or a director of the health service body in question.
.
The National Health Service Litigation Authority (Establishment and Constitution) Order 1995
3
In article 1(2) of the National Health Service Litigation Authority (Establishment and Constitution) Order 1995 (interpretation), in the definition of “NHS body”, after “Special Health Authority,” insert “the National Health Service Commissioning Board, a clinical commissioning group,”.
The National Health Service (Clinical Negligence Scheme) Regulations 1996
4
In regulation 3(1) of the National Health Service (Clinical Negligence Scheme) Regulations 1996 (eligible bodies), before sub-paragraph (a), insert —
za
a clinical commissioning group,
zb
the National Health Service Commissioning Board,
.
The National Health Service (Existing Liabilities Scheme) Regulations 1996
5
In regulation 3(a) of the National Health Service (Existing Liabilities Scheme) Regulations 1996 (eligible bodies), after sub-paragraph (iv) insert —
v
the National Health Service Commissioning Board,
.
The National Health Service (Liabilities to Third Parties Scheme) Regulations 1999
6
In regulation 3 of the National Health Service (Liabilities to Third Parties Scheme) Regulations 1999 (eligible bodies) —
a
before paragraph (a), insert —
za
a clinical commissioning group,
zb
the National Health Service Commissioning Board,
; and
b
after paragraph (aa), insert —
ab
the company known as ‘NHS Property Services Limited’, a company registered in England and Wales with company number 7888110,
.
The National Health Service (Property Expenses Scheme) Regulations 1999
7
In regulation 3 of the National Health Service (Property Expenses Scheme) Regulations 1999 (eligible bodies) —
a
before paragraph (a), insert —
za
a clinical commissioning group,
zb
the National Health Service Commissioning Board,
; and
b
after paragraph (aa), insert —
ab
the company known as ‘NHS Property Services Limited’, a company registered in England and Wales with company number 7888110,
.
The Medicines for Human Use (Clinical Trials) Regulations 2004
8
1
The Medicines for Human Use (Clinical Trials) Regulations 2004 are amended as follows.
2
In regulation 2(1) (interpretation), in the definition of “health service body” —
a
in paragraph (b), after “Primary Care Trust” insert “, clinical commissioning group”; and
b
after paragraph (b) insert —
ba
the National Health Service Commissioning Board,
.
3
In Schedule 2 (additional provisions relating to Ethics Committees) —
a
in paragraph 3(5)(b)(iii), at the end of paragraph (bb) insert —
; or
cc
the governing body of a clinical commissioning group
; and
b
in paragraph 6(6)(a)(ii), after “health service body” insert “or the governing body of a clinical commissioning group”.
The NHS Blood and Transplant (Gwaed a Thrawsblaniadau’r GIG) Regulations 2005
9
1
The NHS Blood and Transplant (Gwaed a Thrawsblaniadau’r GIG) Regulations 2005 are amended as follows.
2
In regulation 1(2) (interpretation), in the definition of “health service body” —
a
in paragraph (a), after “Special Health Authority,” insert “clinical commissioning group,”; and
b
after paragraph (f) insert —
fa
the National Health Service Commissioning Board;
.
3
In regulation 3(1) (disqualification for appointment) —
a
sub-paragraph (d), substitute —
d
he is a person whose tenure of office as the chairman, a member, a director or a governor of a health service body other than a clinical commissioning group has been terminated on the grounds —
i
that it was not in the interests of the health service body or of the health service that he should continue to hold the office,
ii
of non-attendance at meetings,
iii
of non-disclosure of a pecuniary interest, or
iv
of misbehaviour, misconduct or failure to carry out his duties;
; and
b
after sub-paragraph (d) insert —
da
he is a person who has been removed from office as the chair or a member of the governing body of a clinical commissioning group;
.
4
For regulation 3(3) (disqualification for appointment – paid employment) substitute —
3
For the purposes of paragraph (1)(c), a person shall not be treated as having been in paid employment by reason only of having been —
a
in the case of an NHS foundation trust, the chairman, a governor or a non-executive director of the trust;
b
in the case of a clinical commissioning group, the chair or a member of the governing body of the group; or
c
in the case of any other health service body, the chairman, a member or a director of the health service body in question.
.
The NHS Business Services Authority (Awdurdod Gwasanaethau Busnes y GIG) Regulations 2005
10
1
The NHS Business Services Authority (Awdurdod Gwasanaethau Busnes y GIG) Regulations 2005 are amended as follows.
2
In regulation 1(2) (interpretation), in the definition of “health service body” —
a
in paragraph (a), after “Special Health Authority,” insert “clinical commissioning group,”; and
b
after paragraph (f) insert —
fa
the National Health Service Commissioning Board;
.
3
In regulation 3(1) (disqualification for appointment) —
a
for sub-paragraph (d), substitute —
d
he is a person whose tenure of office as the chairman, a member, a director or a governor of a health service body other than a clinical commissioning group has been terminated on the grounds —
i
that it was not in the interests of the health service body or of the health service that he should continue to hold the office,
ii
of non-attendance at meetings,
iii
of non-disclosure of a pecuniary interest, or
iv
of misbehaviour, misconduct or failure to carry out his duties;
;
b
after sub-paragraph (d) insert —
da
he is a person who has been removed from office as the chair or a member of the governing body of a clinical commissioning group;
;
c
in sub-paragraph (j), after sub-paragraph (i) insert —
ia
the National Health Service Commissioning Board,
; and
d
after sub-paragraph (j) insert —
ja
he is the chair or a member of the governing body of a clinical commissioning group.
.
4
For regulation 3(3) (disqualification for appointment – paid employment) substitute —
3
For the purposes of paragraph (1)(c), a person shall not be treated as having been in paid employment by reason only of having been —
a
in the case of an NHS foundation trust, the chairman, a governor or a non-executive director of the trust;
b
in the case of a clinical commissioning group, the chair or a member of the governing body of the group; or
c
in the case of any other health service body, the chairman, a member or a director of the health service body in question.
.
The Care Quality Commission (Registration) Regulations 2009
11
1
The Care Quality Commission (Registration) Regulations 2009 are amended as follows.
2
In regulation 16(4) (notification of death of service user), for “the NHS Commissioning Board Authority established under article 2 of the NHS Commissioning Board Authority (Establishment and Constitution) Order 2011”, substitute “the National Health Service Commissioning Board”.
3
After regulation 16(4) insert —
4A
For the purposes of paragraph (4), where a person has reported a death to the NHS Commissioning Board Authority, established under Article 2 of the NHS Commissioning Board Authority (Establishment and Constitution) Order 2011, before the establishment of the National Health Service Commissioning Board (“the Board”), that report is to be treated as having been made to the Board.
.
4
In regulation 18(4) (notification of other incidents), for “the NHS Commissioning Board Authority established under article 2 of the NHS Commissioning Board Authority (Establishment and Constitution) Order 2011”, substitute “the National Health Service Commissioning Board”.
5
After regulation 18(4) insert —
4ZA
For the purposes of paragraph (4), where a person has reported an incident to the NHS Commissioning Board Authority, established under Article 2 of the NHS Commissioning Board Authority (Establishment and Constitution) Order 2011, before the establishment of the National Health Service Commissioning Board (“the Board”), that report is to be treated as having been made to the Board.
.
The Public Health Wales National Health Service Trust (Membership and Procedure) Regulations 2009
12
1
The English text of the Public Health Wales National Health Service Trust (Membership and Procedure) Regulations 2009 is amended as follows.
2
In regulation 1(2) (interpretation), in the definition of “health service body” (“ corff gwasanaeth iechyd ”) —
a
in paragraph (a), after “a Primary Care Trust,” insert “a clinical commissioning group,”; and
b
at the end insert —
e
the National Health Service Commissioning Board;
.
3
In regulation 15 (disqualification for appointment of chair and non-executive directors) —
a
for sub-paragraph (1)(d), substitute —
d
he is a person whose tenure of office as the chairman, a member, a director or a governor of a health service body other than a clinical commissioning group has been terminated on the grounds —
i
that it was not in the interests of the health service body or of the health service that he should continue to hold the office,
ii
of non-attendance at meetings,
iii
of non-disclosure of a pecuniary interest, or
iv
of misbehaviour, misconduct or failure to carry out his duties;
;
b
after sub-paragraph (1)(d), insert —
da
that person is a person who has been removed from office as the chair or a member of the governing body of a clinical commissioning group; or
;
c
in sub-paragraph (1)(e), after “health service body other than”, insert “a clinical commissioning group or an employee of such a group or”;
d
after sub-paragraph (1)(e) insert —
ea
that person is the chair or a member of the governing body of a clinical commissioning group or an employee of the group; or
; and
e
for paragraph (3) substitute —
3
For the purposes of paragraph (1)(c), a person will not be treated as having been in paid employment by reason only of having been —
a
in the case of an NHS foundation trust, the chair, a governor or a non-executive director;
b
in the case of a clinical commissioning group, the chair or a member of the governing body of the group; or
c
in the case of any other health service body, the chair, a member or a director of the health service body in question.
.
4
The Welsh text of the Public Health Wales National Health Service Trust (Membership and Procedure) Regulations 2009 is amended as follows.
5
In regulation 1(2) (dehongli), in the definition of “corff gwasanaeth iechyd” (“health service body” ) —
a
in paragraph (a), after “Gofal Iechyd Sylfaenol”, insert “grŵp comisiynu clinigol,” and
b
at the end insert —
d
Bwrdd Comisiynu’r Gwasanaeth Iechyd Gwladol;
.
6
In regulation 15 (datgymhwyso rhag penodi cadeirydd a chyfarwyddwyr anweithredol) —
a
for sub-paragraph (1)(ch), substitute —
ch
os yw’r person hwnnw yn berson y mae ei ddeiliadaeth swydd fel cadeirydd corff gwasanaeth iechyd, neu fel aelod ohono, neu fel cyfarwyddwr neu lywodraethwr iddo, wedi ei therfynu oherwydd —
i
nad oedd o fudd i’r corff gwasanaeth iechyd neu i’r gwasanaeth iechyd gwladol iddo barhau i ddal y swydd,
ii
nad oedd yn mynychu cyfarfodydd,
iii
nad oedd yn datgelu buddiant ariannol, neu
iv
iddo gamymddwyn, gamweinyddu neu fethu â chyflawni ei ddyletswyddau;
;
b
after sub-paragraph (1)(ch), insert —
cha
os yw’r person hwnnw yn berson a ddiswyddwyd fel cadeirydd neu aelod o gorff llywodraethu grŵp comisiynu clinigol; neu
;
c
for sub-paragraph (1)(d), substitute —
d
os yw’r person hwnnw’n gadeirydd corff gwasanaeth iechyd ac eithrio grŵp comisiynu clinigol neu gyflogai i’r grŵp hwnnw neu ymddiriedolaeth sefydledig GIG, neu os yw’n aelod o’r corff gwasanaeth iechyd hwnnw neu’n gyfarwyddwr neu’n gyflogai iddo; neu
;
d
after sub-paragraph (1)(d) insert —
da
os yw’r person hwnnw’n gadeirydd neu’n aelod o gorff llywodraethu grŵp comisiynu clinigol neu yn gyflogai i’r grŵp; neu
; and
e
for paragraph (3) substitute —
3
At ddibenion paragraff (1)(c), ni thrinnir person fel petai wedi bod mewn cyflogaeth am dâl yn unig oherwydd iddo fod —
a
yn achos ymddiriedolaeth sefydledig GIG, yn gadeirydd, llywodraethwr neu gyfarwyddwr anweithredol;
b
yn achos grŵp comisiynu clinigol, yn gadeirydd neu’n aelod o gorff llywodraethu’r grŵp;
c
yn achos unrhyw gorff gwasanaeth iechyd arall, cadeirydd, neu aelod neu gyfarwyddwr ar y corff gwasanaeth iechyd dan sylw.
.
The Welsh Health Specialised Services Committee (Wales) Regulations 2009
13
1
The English text of the Welsh Health Specialised Services Committee (Wales) Regulations 2009 is amended as follows.
2
In regulation 2 (interpretation), in the definition of “health service body” (“ corff gwasanaeth iechyd ”), for “means a”, substitute “means the National Health Service Commissioning Board, a clinical commissioning group,”.
3
In paragraph 1(2) of Schedule 2 (eligibility requirements) —
a
in sub-paragraph (d), after “health service body” (the first time it appears), insert “other than a clinical commissioning group”; and
b
after sub-paragraph (d) insert —
e
has been removed from office as the chair or member of the governing body of a clinical commissioning group.
.
4
At the end of paragraph 1(4) of Schedule 2, insert “other than a clinical commissioning group, or of having held the position of chair or member of the governing body of a clinical commissioning group”.
5
The Welsh text of the Welsh Health Specialised Services Committee (Wales) Regulations 2009 is amended as follows.
6
In regulation 2 (dehongli), in the definition of “corff gwasanaeth iechyd” ( “health service body” ), after “yw” insert “Bwrdd Comisiynu’r Gwasanaeth Iechyd Gwladol, grŵp comisiynu clinigol,”.
7
In paragraph 1(2) of Schedule 2 (y gofynion cymhwystra) —
a
in sub-paragraph (ch), after “corff gwasanaeth iechyd” (the first time it appears), insert “ac eithrio grŵp comisiynu clinigol”; and
b
after sub-paragraph (ch) insert —
d
wedi ei ddiswyddo fel cadeirydd neu aelod o gorff llywodraethu grŵp comisiynu clinigol.
.
8
At the end of paragraph 1(4) of Schedule 2, insert “ac eithrio grŵp comisiynu clinigol, neu fel un sydd wedi dal swydd cadeirydd neu aelod o gorff llywodraethu grŵp comisiynu clinigol”.
The Local Health Boards (Constitution, Membership and Procedures) (Wales) Regulations 2009
14
1
The English text of the Local Health Boards (Constitution, Membership and Procedures) (Wales) Regulations 2009 is amended as follows.
2
In regulation 2 (interpretation), in the definition of “health service body” (“ corff gwasanaeth iechyd ”), for “means a”, substitute “means the National Health Service Commissioning Board, a clinical commissioning group,”.
3
In paragraph 1(2) of Schedule 2 (eligibility requirements for members and associate members) —
a
in sub-paragraph (d), after “health service body” (the first time it appears), insert “other than a clinical commissioning group”; and
b
after sub-paragraph (d) insert —
e
has been removed from office as the chair or a member of the governing body of a clinical commissioning group.
.
4
At the end of paragraph 1(4) of Schedule 2, insert “other than a clinical commissioning group, or of having held the position of chair or member of the governing body of a clinical commissioning group”.
5
The Welsh text of the Local Health Boards (Constitution, Membership and Procedures) Regulations 2009 is amended as follows.
6
In regulation 2 (dehongli), in the definition of “corff gwasanaeth iechyd” (“ health service body” ), after “yw” insert “Bwrdd Comisiynu’r Gwasanaeth Iechyd Gwladol, grŵp comisiynu clinigol,”.
7
In paragraph 1(2)(ch) of Schedule 2 (y meini prawf cymhwystra ar gyfer aelodau ac aelodau cyswllt) —
a
in sub-paragraph (ch), after “corff gwasanaeth iechyd” (the first time it appears), insert “ac eithrio grŵp comisiynu clinigol”; and
b
after sub-paragraph (ch) insert —
d
wedi’i ddiswyddo fel cadeirydd neu aelod o gorff llywodraethu grŵp comisiynu clinigol.
.
8
At the end of paragraph 1(4) of Schedule 2, insert “ac eithrio grŵp comisiynu clinigol, neu fel un sydd wedi dal swydd cadeirydd neu aelod o gorff llywodraethu grŵp comisiynu clinigol”.
The Health Research Authority Regulations 2011
15
1
The Health Research Authority Regulations 2011 are amended as follows.
2
In regulation 1(2) (interpretation) —
a
the definition of “health service body” —
i
in paragraph (a), after “Special Health Authority,”, insert “a clinical commissioning group,”;
ii
after paragraph (g) insert —
ga
the National Health Service Commissioning Board;
; and
b
in the definition of “member”, for “regulation 2A(1)(d), (2) and (3)” substitute “regulation 2A(1)(d), (da), (2) and (3)”.
3
In regulation 2A (disqualification for appointment) —
a
in paragraph (1)(d), after “health service body” (the first time it appears), insert “other than a clinical commissioning group”;
b
after paragraph (1)(d), insert —
da
that person is a person who has been removed from office as the chair or a member of the governing body of a clinical commissioning group;
;
c
in paragraph (2)(a), after “which is not”, insert “a clinical commissioning group,”; and
d
after paragraph (2)(a) insert —
ab
in the case of a clinical commissioning group, the chair or a member of the governing body of the group;
.
The National Health Service Trust Development Authority Regulations 2012
16
1
The National Health Service Trust Development Authority Regulations 2012 are amended as follows.
2
In regulation 1(2) (interpretation) —
a
the definition of “health service body” —
i
in paragraph (a), after “Special Health Authority,”, insert “a clinical commissioning group,”;
ii
after paragraph (g) insert —
ga
the National Health Service Commissioning Board;
; and
b
in the definition of “member”, for “regulation 3(1)(d) and (h)” substitute “regulation 3(1)(d), (da), (h) and (k)”.
3
In regulation 3 (disqualification for appointment) —
a
in paragraph (1)(d), after “health service body” (the first time it appears), insert “other than a clinical commissioning group”;
b
after paragraph (1)(d), insert —
da
that person is a person who has been removed from office as the chair or a member of the governing body of a clinical commissioning group;
;
c
in paragraph (1)(j), at the end of paragraph (iv), insert —
; or
v
the National Health Service Commissioning Board; or
;
d
after paragraph (l)(j) insert —
k
that person is the chair or a member of the governing body of a clinical commissioning group.
;
e
in paragraph (2)(a), after “which is not”, insert “a clinical commissioning group,”; and
f
after paragraph (2)(a) insert —
ab
in the case of a clinical commissioning group, the chair or a member of the governing body of the group;
.
The Health Education England Regulations 2012
17
1
The Health Education England Regulations 2012 are amended as follows.
2
In regulation 1(2) (interpretation) —
a
the definition of “health service body” —
i
in paragraph (a), after “Special Health Authority,”, insert “a clinical commissioning group,”;
ii
after paragraph (g) insert —
ga
the National Health Service Commissioning Board;
; and
b
in the definition of “member”, for “regulation 3(1)(d) and (3)” substitute “regulation 3(1)(d), (da), (2) and (3)”.
3
In regulation 3 (disqualification for appointment) —
a
in paragraph (1)(d), after “health service body” (the first time it appears), insert “other than a clinical commissioning group”;
b
after paragraph (1)(d), insert —
da
P is a person who has been removed from office as the chair or a member of the governing body of a clinical commissioning group;
;
c
in paragraph (2)(a), after “which is not”, insert “a clinical commissioning group,”; and
d
after paragraph (2)(a) insert —
ab
in the case of a clinical commissioning group, the chair or a member of the governing body of the group;
.
SCHEDULE 4
Amendments consequential on provisions relating to Monitor
Part 3, article 10
The National Health Service Trusts (Membership and Procedure) Regulations 1990
1
1
The National Health Service Trusts (Membership and Procedure) Regulations 1990 are amended as follows.
2
In regulation 1(2) (interpretation) —
a
in the definition of “health service body”, for paragraph (h) substitute —
h
Monitor;
; and
b
omit the definition of “the Independent Regulator of NHS Foundation Trusts”.
3
In regulation 11(1) (disqualification for appointment of chairman and non-executive directors), in sub-paragraph (i) for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”.
The National Health Service Litigation Authority Regulations 1995
2
1
The National Health Service Litigation Authority Regulations 1995 are amended as follows.
2
In regulation 1(2) (interpretation) —
a
in the definition of “health service body”, for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”; and
b
omit the definition of “Independent Regulator of NHS Foundation Trusts”.
3
In regulation 7(1)(g) (disqualification for appointment), for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”.
The Health Authorities (Membership and Procedure) Regulations 1996
3
1
The Health Authorities (Membership and Procedure) Regulations 1996 are amended as follows.
2
In regulation 1(2) (interpretation) —
a
in the definition of “health service body”, for paragraph (f) substitute —
f
Monitor
; and
b
omit the definition of “Independent Regulator of NHS Foundation Trusts”.
3
In regulation 10(1)(m) (disqualification for appointment), for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”.
The National Institute for Clinical Excellence Regulations 1999
4
In regulation 1(2) of the National Institute for Clinical Excellence Regulations 1999 (interpretation) —
a
in the definition of “health service body”, for paragraph (i) substitute —
i
Monitor,
; and
b
omit the definition of “Independent Regulator of NHS Foundation Trusts”.
The Public Interest Disclosure (Prescribed Persons) Order 1999
5
1
In the Schedule to the Public Interest Disclosure (Prescribed Persons) Order 1999 (persons prescribed for the purposes of section 43F of the Employment Rights Act 1996) —
a
for “Independent Regulator of NHS Foundation Trusts”, in each place it occurs, substitute “Monitor”; and
b
in paragraph (b) of the description of matters in respect of which that body is prescribed omit “under the National Health Service Act 2006”.
The Primary Care Trusts (Membership, Procedure and Administration Arrangements) Regulations 2000
6
1
The Primary Care Trusts (Membership, Procedure and Administration Arrangements) Regulations 2000 are amended as follows.
2
In regulation 1(2) (interpretation) —
a
in the definition of “health service body”, for the second paragraph (g) substitute —
ga
Monitor
; and
b
omit the definition of “the Independent Regulator of NHS Foundation Trusts”.
3
In regulation 5(1)(k) (disqualification for appointment: chairman and non-officer members), for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”.
The National Treatment Agency Regulations 2001
7
1
The National Treatment Agency Regulations 2001 are amended as follows.
2
In regulation 1(2) (interpretation) —
a
in the definition of “health service body”, for paragraph (c) substitute —
c
Monitor
; and
b
omit the definition of “Independent Regulator of NHS Foundation Trusts”.
3
In regulation 3(1)(g) (disqualification for appointment), for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”.
The Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002
8
1
The Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002 are amended as follows.
2
In regulation 1(3) (interpretation), in the definition of “authorisation”, for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”.
3
In regulation 4A(1)(a) (consultation of committees by NHS Foundation Trusts), for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”.
The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004
9
In the Annex to Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (list of regulators), for the entry for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”.
The Health Protection Agency Regulations 2005
10
In regulation 1(3) of the Health Protection Agency Regulations 2005 (interpretation), in the definition of “health service body”, for paragraph (j) substitute —
j
Monitor,
.
The Health and Social Care Information Centre Regulations 2005
11
In regulation 3(1)(h) of the Health and Social Care Information Centre Regulations 2005 (disqualification for appointment), for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”.
The NHS Institute for Innovation and Improvement Regulations 2005
12
In regulation 3(1)(h) of the NHS Institute for Innovation and Improvement Regulations 2005 (disqualification for appointment), for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”.
The NHS Business Services Authority (Awdurdod Gwasanaethau Busnes y GIG) Regulations 2005
13
In regulation 3(1)(h) of the NHS Business Services Authority (Awdurdod Gwasanaethau Busnes y GIG) Regulations 2005 (disqualification for appointment), for “the Independent Regulator of NHS foundation trusts” substitute “Monitor”.
NHS Blood and Transplant (Gwaed a Thrawsblaniadau’r GIG) Regulations 2005
14
In regulation 3(1)(h) of the NHS Blood and Transplant (Gwaed a Thrawsblaniadau’r GIG) Regulations 2005 (disqualification for appointment), for “the Independent Regulator of NHS foundation trusts” substitute “Monitor”.
The Care Quality Commission (Membership) Regulations 2008
15
In regulation 1(2) of the Care Quality Commission (Membership) Regulations 2008 (interpretation), in the definition of “NHS body”, for paragraph (c) substitute —
c
Monitor;
.
The National Information Governance Board for Health and Social Care Regulations 2008
16
In regulation 1(3) of the National Information Governance Board for Health and Social Care Regulations 2008 (interpretation), in the definition of “health service body”, for paragraph (h) substitute —
h
Monitor;
.
The Health and Social Care Act 2008 (Commencement No.9, Consequential Amendments and Transitory, Transitional and Saving Provisions) Order 2009
17
1
Schedule 3 to the Health and Social Care Act 2008 (Commencement No.9, Consequential Amendments and Transitory, Transitional and Saving Provisions) Order 2009 (transitory, transitional and saving provisions in relation to the functions of the CHAI and the CSCI under the 2003 Act) is amended as follows.
2
In paragraph 8 —
a
in the heading to that paragraph, for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”; and
b
in sub-paragraph (1)(b), for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”.
The Public Health Wales National Health Service Trust (Membership and Procedure) Regulations 2009
18
1
The English text of the Public Health Wales National Health Service Trust (Membership and Procedure) Regulations 2009 is amended as follows.
2
In regulation 1(2) (interpretation) —
a
in the definition of “health service body” ( “corff gwasanaeth iechyd” ), for paragraph (d) substitute —
d
Monitor;
; and
b
omit the definition of “Independent Regulator of NHS Foundation Trusts” ( “Rheoleiddiwr Annibynnol Ymddiriedolaethau Sefydledig GIG” ).
3
In regulation 15(1)(g) (disqualification for appointment of chair and non-executive directors), for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”.
4
The Welsh text of the Public Health Wales National Health Service Trust (Membership and Procedure) Regulations 2009 is amended as follows.
5
In regulation 1(2) (dehongli) —
a
in the definition of “corff gwasanaeth iechyd” ( “health service body” ), for paragraph (ch) substitute —
ch
Monitor;
; and
b
omit the definition of “Rheoleiddiwr Annibynnol Ymddiriedolaethau Sefydledig GIG” (“ Independent Regulator of NHS Foundation Trusts ”).
6
In regulation 15(1)(e) (datgymhwyso rhag penodi cadeirydd a chyfarwyddwyr anweithredol), for “Rheolydd Annibynnol Ymddiriedolaethau Sefydledig GIG” substitute “Monitor”.
The Medical Profession (Responsible Officers) Regulations 2010
19
In regulation 9(4) of the Medical Profession (Responsible Officers) Regulations 2010 (nomination of responsible officer by the Secretary of State), for “the Independent Regulator of NHS Foundation Trusts” substitute “Monitor”.
The Equality Act 2010 (Specific Duties) Regulations 2011
20
In Schedule 1 to the Equality Act 2010 (Specific Duties) Regulations 2011 (public authorities required to publish information), for the entry for the Independent Regulator of NHS Foundation Trusts substitute “Monitor”.
The Health Research Authority Regulations 2011
21
In regulation 1(2) of the Health Research Authority Regulations 2011 (interpretation), in the definition of “health service body”, for sub-paragraph (f) substitute —
f
Monitor;
.
The National Health Service Trust Development Authority Regulations 2012
22
1
The National Health Service Trust Development Authority Regulations 2012 are amended as follows.
2
In regulation 1(2) (interpretation), in the definition of “health service body”, for sub-paragraph (f) substitute —
f
Monitor;
.
3
In paragraph 3(1)(h) (disqualification for appointment), for “chairman or another member of the Independent Regulator of NHS foundation trusts” substitute “chair or another member of Monitor”.
The Health Education England Regulations 2012
23
In regulation 1(2) of the Health Education England Regulations 2012 (interpretation), in the definition of “health service body”, for paragraph (f) substitute —
f
Monitor;
. |
The Firefighters’ Pension Scheme (Amendment)(England)Order 2012
Citation and commencement
1
1
This Order may be cited as the Firefighters’ Pension Scheme (Amendment)(England) Order 2012.
2
This Order shall come into force on 1st April 2012.
Amendment of the Firemen’s Pension Scheme Order 1992
2
Schedule 2 to the Firemen’s Pension Scheme Order 1992 (in which the Firefighters’ Pension Scheme is set out), as it has effect in England , shall be amended in accordance with articles 3 and 4 of this Order.
3
In rule G2 (pension contributions) —
a
in paragraph (1), for “specified in paragraph (1A)” substitute “specified in the Table in paragraph 3 of Part A1 of Schedule 8;” and
b
omit paragraph (1A).
4
In Schedule 8 for —
PURCHASE OF INCREASED BENEFITS
substitute —
PENSION CONTRIBUTION AND PURCHASE OF INCREASED BENEFITS
PART A1 PENSION CONTRIBUTIONS
1
1
In the case of a whole-time regular firefighter the pension contribution mentioned in rule G2(1) is the percentage of his pensionable pay ascertained from the Table in paragraph 3 by reference to the amount of his pensionable pay in the first column of that Table.
2
For the purposes of sub-paragraph (1) —
a
where there has been a permanent material change to the terms and conditions of a regular firefighter’s employment which affects his pensionable pay, from the date of that change his pensionable pay in the first and second columns shall be calculated by reference to the revised amount;
b
pensionable pay in the first column of the Table in paragraph 3 does not include payments made to a regular firefighter by the fire and rescue authority in respect of his continual professional development, but those payments will be included in his pensionable pay for the purposes of the application of the rate ascertained from that Table.
2
1
In the case of a part-time regular firefighter, the pension contribution mentioned in rule G2(1) is the percentage of his pensionable pay ascertained from the Table in paragraph 3 by reference to the amount of pensionable pay which he would have received had he been a whole-time regular firefighter.
2
For the purposes of sub-paragraph (1) —
a
where there has been a permanent material change to the terms and conditions of a part-time regular firefighter’s employment which affects his pensionable pay, from the date of that change his pensionable pay in the first and second columns shall be calculated by reference to the revised amount;
b
pensionable pay in the first column of the Table in paragraph 3 does not include payments made to a part-time regular firefighter by the fire and rescue authority in respect of his continual professional development, but those payments will be included in his pensionable pay for the purposes of the application of the rate ascertained from that Table.
3
The following Table is that referred to in paragraphs 1 and 2.
Pensionable pay Contribution rate from 1 st April 2012
Up to and including £15,000 11.0% of pensionable pay More than £15,000 and up to and including £30,000 11.6% of pensionable pay More than £30,000 and up to and including £40,000 11.7% of pensionable pay More than £40,000 and up to and including £50,000 11.8% of pensionable pay More than £50,000 and up to and including £60,000 11.9% of pensionable pay More than £60,000 and up to and including £100,000 12.2% of pensionable pay More than £100,000 and up to and including £120,000 12.5% of pensionable pay More than £120,000 13.0% of pensionable pay
Signed by authority of the Secretary of State for Communities and Local Government
Bob Neill
Parliamentary Under Secretary of State
Department for Communities and Local Government
27th March 2012 |
The Closure of Prisons Order 2012
The Secretary of State makes the following Order in exercise of the powers conferred by section 37 of the Prison Act 1952 :
1
This Order may be cited as the Closure of Prisons Order 2012 and comes into force on 8th February 2012.
2
H.M. Prison Lancaster Castle, in Lancashire, is closed.
Signed by authority of the Secretary of State
Crispin Blunt
Parliamentary Under Secretary of State
Ministry of Justice
10th January 2012 |
The Inspectors of Education, Children’s Services and Skills Order 2012
Her Majesty, in exercise of the powers conferred by section 114(1) of the Education and Inspections Act 2006 , is pleased, by and with the advice of Her Privy Council, to order as follows:
Citation and commencement
1
This Order may be cited as the Inspectors of Education, Children’s Services and Skills Order 2012 and comes into force on 18th October 2012.
Appointment of Her Majesty’s Inspectors of Education, Children’s Services and Skills
2
The persons named in the Schedule to this Order are appointed as Her Majesty’s Inspectors of Education, Children’s Services and Skills.
Richard Tilbrook
Clerk of the Privy Council
SCHEDULE
Article 2
Persons appointed as Her Majesty’s Inspectors of Education, Children’s Services and Skills on 18th October 2012
David Carter
Barbara Anne Comiskey
Lesley Claire Cox
Lesley Rosalind Farmer
Sandra Dawn Hayes
Matthew Haynes
Richard David Light
Ruth Love
Charles Gerard Lowry
Marilyn Mottram
Fiona Kathryn Parker
Janet Elizabeth Pearce
Anne Bernadette Seneviratne |
The Education (School Teachers’ Appraisal) (England) Regulations 2012
In accordance with section 131(6) of that Act , the Secretary of State has consulted with such associations of local authorities in England, local authorities in England, bodies representing the interests of governing bodies in England and bodies representing the interests of teachers in England as appeared to the Secretary of State to be appropriate.
Citation, commencement and application
1
1
These Regulations may be cited as the Education (School Teachers’ Appraisal) (England) Regulations 2012 and come into force on 1st September 2012.
2
These Regulations apply in relation to England.
3
Subject to paragraph (4) , these Regulations apply to any teacher employed for one school term or more.
4
These Regulations do not apply to —
a
any teacher whilst that teacher is undergoing an induction period in accordance with the Education (Induction Arrangements for School Teachers) (England) Regulations 2008 ; or
b
any teacher whilst that teacher is the subject of capability procedures.
5
In this regulation “capability procedures” means the procedures established by a governing body pursuant to regulation 8 of the School Staffing (England) Regulations 2009 .
Interpretation
2
1
In these Regulations —
“ the Act ” means the Education Act 2002;
“appraisal period”, in relation to a teacher, means the period determined in relation to that teacher in accordance with regulation 5 ;
“school” means a community, voluntary, foundation, community special or foundation special school or a maintained nursery school;
“teacher” means a school teacher as defined in section 122 of the Act; and
“unattached teacher” means a teacher employed by a local authority who is —
not attached to a particular school, or
employed otherwise than at a school.
2
For the purposes of these Regulations, a teacher is employed at a school if —
a
the teacher is employed by the governing body of that school, or
b
the teacher is employed by the local authority to work in that school.
Duty to make available to teachers a document setting out the appraisal process
3
1
The governing body of a school must adopt and make available to teachers employed at that school a document which sets out the appraisal process for such teachers.
2
A local authority must adopt and make available to unattached teachers employed by that authority a document which sets out the appraisal process for such teachers.
Appointment of external advisers in respect of head teachers
4
The governing body of a school must appoint an external adviser for the purposes of providing it with advice and support in relation to the appraisal of the head teacher.
Appraisal period
5
1
Subject to paragraphs (3) to (5) , the appraisal period in relation to a teacher employed at a school is such period of twelve months as the governing body determines in respect of that teacher.
2
Subject to paragraphs (3) to (6) the appraisal period in relation to an unattached teacher is such period of twelve months as the local authority determines in respect of that teacher.
3
Where a teacher is employed on a fixed term contract of less than twelve months the appraisal period is the period of employment to which the contract relates.
4
Where a teacher begins employment with a relevant body, the relevant body may determine that the initial appraisal period in respect of that teacher is a period shorter or longer than twelve months, and in this paragraph “relevant body” means —
a
in relation to a teacher employed at a school, the governing body of that school, and
b
in relation to an unattached teacher, the local authority by which the unattached teacher is employed.
5
Where a teacher ceases employment other than at the end of the appraisal period applying in relation to that teacher the appraisal period ends with the last day of such employment.
6
Where an unattached teacher transfers from one post in the local authority by which the teacher is employed to another such post other than at the end of the appraisal period applying in relation to that teacher the local authority may determine that the appraisal period in progress at the time of the transfer is to be shorter or longer than twelve months.
Standards and Objectives
6
1
The governing body of a school must, before, or as soon as practicable after, the start of each appraisal period in relation to a head teacher —
a
inform the head teacher of the standards against which the head teacher’s performance in that appraisal period will be assessed; and
b
set objectives for the head teacher in respect of that period.
2
In setting objectives for the head teacher, the governing body of a school must consult the external adviser appointed under regulation 4 .
3
The head teacher of a school must, in respect of every other teacher employed at that school, before, or as soon as practicable after, the start of each appraisal period in relation to a teacher —
a
inform the teacher of the standards against which the teacher’s performance in that appraisal period will be assessed; and
b
set objectives for the teacher in respect of that period.
4
The governing body of a school must exercise its functions so as to secure that the duties set out in paragraph (3) are complied with.
5
The objectives set under paragraph (1)(b) or (3)(b) must be such that, if they are achieved, they will contribute to —
a
improving the education of pupils at that school; and
b
the implementation of any plan of the governing body designed to improve that school’s educational provision and performance.
6
A local authority must, in respect of unattached teachers employed by that authority, before, or as soon as practicable after, the start of the appraisal period in relation to each such teacher —
a
inform the teacher of the standards against which the teacher’s performance in that appraisal period will be assessed; and
b
set objectives for the teacher in respect of that period.
7
The objectives set under paragraph (6)(b) must be such that, if they are achieved, they will contribute to improving the education of pupils in the school or other place at which the teacher is employed.
8
The standards referred to in paragraphs (1)(a) , (3)(a) and (6)(a) in respect of a teacher are —
a
the set of standards contained in the document entitled “Teachers’ Standards” published by the Secretary of State in July 2011; and
b
any other set of standards relating to teachers’ performance published by the Secretary of State as the governing body, head teacher or local authority (as the case may be) determines as being applicable to the performance of that teacher.
Appraisal of teachers
7
1
The governing body of a school must appraise the performance of the head teacher in respect of each appraisal period applying in relation to that head teacher.
2
In appraising the performance of the head teacher, the governing body of a school must consult the external adviser appointed under regulation 4 .
3
The head teacher of a school must appraise the performance of every other teacher employed at that school in respect of each appraisal period applying in relation to the teacher.
4
The governing body of a school must exercise its functions so as to secure that the duty in paragraph (3) is complied with.
5
A local authority must appraise the performance of each unattached teacher employed by that authority in respect of each appraisal period applying in relation to the teacher.
6
In making an appraisal under paragraph (1), (3) or (5) the governing body, head teacher or local authority (as the case may be) must —
a
assess the teacher’s performance of their role and responsibilities during the appraisal period in question against —
i
the standards applicable to that teacher by virtue of regulation 6 ; and
ii
the teacher’s objectives set under regulation 6 ;
b
assess the teacher’s professional development needs and identify any action that should be taken to address them; and
c
where relevant under the Document, include a recommendation relating to the teacher’s pay.
7
In paragraph (6) “the Document” means the document referred to in any order made under section 122 of the Act for the time being in force.
Appraisal report
8
1
As soon as practicable following the end of each appraisal period applying in relation to a teacher, the governing body, head teacher or local authority (as the case may be) must provide the teacher with a written report of the teacher’s appraisal in respect of that appraisal period.
2
A report under paragraph (1) must record the assessments mentioned in regulation 7(6) (a) and (b) and any recommendation under regulation 7(6)(c).
3
The governing body of a school must exercise its functions so as to secure that the duty in paragraph (1) is complied with.
Revocation and saving etc.
9
1
Subject to paragraph (2), the Education (School Teacher Performance Management) (England) Regulations 2006 (“the 2006 Regulations ”) are revoked.
2
The 2006 Regulations continue to apply in relation to any cycle which is in progress at the coming into force of these Regulations.
3
But —
a
a governing body of a school may determine, in relation to any teacher employed at that school, and
b
a local authority may determine, in relation to any unattached teacher it employs,
that the cycle applying in respect of that teacher which is in progress at the coming into force of these Regulations comes to an end earlier than it would have done under the 2006 Regulations.
4
In this regulation “cycle” has the same meaning as in the 2006 Regulations.
Nick Gibb
Minister of State
Department for Education
17th January 2012 |
Live Music Act 2012
Licence review for live music entertainment
1
1
In section 177 of the Licensing Act 2003 (dancing and live music in certain small premises) —
a
in subsections (1) and (2), for “the provision of music entertainment” in each place substitute “dancing”,
b
in subsection (2) omit —
i
paragraph (b) and “and” immediately before it, and
ii
in the words following paragraph (b), the words “, in relation to the provision of that entertainment,”,
c
omit subsections (3) and (4),
d
in subsection (8) —
i
for “music entertainment” substitute “dancing” and in paragraph (a) of that definition omit “(e) or”, and
ii
omit paragraph (b) of that definition and “or” immediately before it, and
e
in the heading omit “and live music”.
2
After that section insert —
Licence review for live music
177A
1
Subsection (2) applies where live music takes place on premises authorised to be used for the supply of alcohol for consumption on the premises by a premises licence or club premises certificate, and —
a
at the time of the live music, the premises are open for the purposes of being used for the supply of alcohol for consumption on the premises,
b
either —
i
the live music is unamplified, or
ii
the live music is amplified and takes place in the presence of an audience of no more than 200 persons, and
c
the live music takes place between 8am and 11pm on the same day (or, where an order under section 172 has effect, between the hours specified in that order).
2
Any condition of the premises licence or club premises certificate which relates to live music does not have effect in relation to the live music, unless it falls within subsection (3) or is added to the licence in accordance with subsection (4).
3
A condition falls within this subsection if, on a review of the premises licence or club premises certificate it is altered so as to include a statement that this section does not apply to it.
4
On a review of a premises licence or club premises certificate a licensing authority may (without prejudice to any other steps available to it under this Act) add a condition relating to live music as if —
a
the live music were regulated entertainment, and
b
the licence or certificate licensed the live music.
5
In this section —
“condition” means a condition —
included in a premises licence by virtue of section 18(2)(a) or (3)(b), 35(3)(b), 52(3) or 167(5)(b),
included in a club premises certificate by virtue of section 72(2)(a) or (3)(b), 85(3)(b) or 88(3),
added to a premises licence by virtue of its inclusion in an application to vary the licence in accordance with section 34 or 41A which is granted under section 35(2) or 41B(3) (as the case may be), or
added to a club premises certificate by virtue of its inclusion in an application to vary the certificate in accordance with section 84 or 86A which is granted under section 85(2) or 86B(3) (as the case may be);
“live music” means entertainment of a description falling within, or of a similar description to that falling within, paragraph 2(1)(e) of Schedule 1;
“supply of alcohol” means —
the sale by retail of alcohol, or
the supply of alcohol by or on behalf of a club to, or to the order of, a member of the club.
Removal of requirement to license the provision of entertainment facilities
2
1
Schedule 1 to the Licensing Act 2003 (c. 17) is amended as follows.
2
For paragraph 1(1) substitute —
1
For the purposes of this Act, the “provision of regulated entertainment” means the provision of entertainment of a description falling within paragraph 2 where the conditions in sub-paragraphs (2) and (3) are satisfied.
3
In paragraph 1(2) omit “, or entertainment facilities are,”.
4
For paragraph 1(3) substitute —
3
The second condition is that the premises on which the entertainment is provided are made available for the purpose, or for purposes which include the purpose, of enabling the entertainment concerned to take place.
5
For paragraph 1(4) substitute —
4
For the purposes of sub-paragraph (2)(c), entertainment is to be regarded as provided for consideration only if any charge —
a
is made by or on behalf of any person concerned in the organisation or management of that entertainment, and
b
is paid by or on behalf of some or all of the persons for whom that entertainment is provided.
6
In paragraph 1(6) omit paragraph (c).
7
Omit paragraph 3.
8
For paragraph 4 substitute —
4
The Secretary of State may by order amend this Schedule for the purposes of modifying the descriptions of entertainment specified in paragraph 2, and for this purpose “modify” includes adding, varying or removing any description.
9
For paragraph 7 substitute —
7
The provision of entertainment consisting of the performance of live music or the playing of recorded music is not to be regarded as the provision of regulated entertainment for the purposes of this Act to the extent that it is incidental to some other activity which is not itself a description of entertainment falling within paragraph 2.
10
In paragraph 8 omit “or entertainment facilities”.
11
In paragraph 9 omit “or entertainment facilities”.
12
In paragraph 10(1) omit “or entertainment facilities”.
13
In paragraph 11 —
a
omit “or entertainment facilities”, and
b
omit sub-paragraph (b).
14
In paragraph 11A omit sub-paragraph (4).
15
In paragraph 12 omit “or entertainment facilities”.
Exemptions for live music entertainment
3
1
Schedule 1 to the Licensing Act 2003 (c. 17) is amended as follows.
2
In paragraph 11(a) for “a performance of unamplified, live music as” substitute “the playing of live or recorded music that forms”.
3
After paragraph 12 insert —
Live music in licensed venues
12A
The provision of entertainment consisting of a performance of live music is not to be regarded as the provision of regulated entertainment for the purposes of this Act on premises authorised to be used for the supply of alcohol for consumption on the premises by a premises licence or club premises certificate, if —
a
the requirements of section 177A(1)(a) to (c) are satisfied, and
b
conditions have not been included in the licence or certificate by virtue of section 177A(3) or (4).
4
After paragraph 12A (as inserted by sub-paragraph (3)) insert —
Live music in workplaces
12B
The provision of entertainment consisting of a performance of live music is not to be regarded as the provision of regulated entertainment for the purposes of this Act, provided that —
a
the place where the performance is provided is not licensed under this Act (or is so licensed only for the provision of late night refreshment) but is a workplace as defined in regulation 2(1) of the Workplace (Health, Safety and Welfare) Regulations 1992,
b
the performance takes place in the presence of an audience of no more than 200 persons, and
c
the performance takes place between 8am and 11pm on the same day.
5
After paragraph 12B (as inserted by sub-paragraph (4)) insert —
Live unamplified music
12C
The provision of entertainment consisting of a performance of live music is not (subject to section 177A(3) and (4)) to be regarded as the provision of regulated entertainment for the purposes of this Act provided that the music —
a
is unamplified; and
b
takes place between 8am and 11pm on the same day.
Short title, commencement and extent
4
1
This Act may be cited as the Live Music Act 2012.
2
This Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint.
3
This Act extends to England and Wales only. |
The Social Security (Categorisation of Earners) (Amendment) Regulations 2012
The Secretary of State concurs in the making of regulation 4 and the Department for Social Development concurs in the making of regulation 8.
Citation and commencement
1
These Regulations may be cited as the Social Security (Categorisation of Earners) (Amendment) Regulations 2012 and shall come into force on 6th April 2012.
Amendment of the Social Security (Categorisation of Earners) Regulations 1978
2
The Social Security (Categorisation of Earners) Regulations 1978 are amended as follows.
3
In regulation 1(2) (citation, commencement and interpretation) omit the definition of “educational establishment”.
4
In Part 1 of Schedule 1 —
a
in column A omit paragraph 4; and
b
in column B omit paragraph 4.
5
In Schedule 3 (employments in respect of which persons are treated as secondary Class 1 contributors) —
a
in column A omit paragraph 6; and
b
in column B omit paragraph 6.
Amendment of the Social Security (Categorisation of Earners) Regulations (Northern Ireland) 1978
6
The Social Security (Categorisation of Earners) Regulations (Northern Ireland) 1978 are amended as follows.
7
In regulation 1(2) (citation, commencement and interpretation) omit the definition of “educational establishment”.
8
In Part 1 of Schedule 1 —
a
in column A omit paragraph 4; and
b
in column B omit paragraph 4.
9
In Schedule 3 (employments in respect of which persons are treated as secondary Class 1 contributors) —
a
in column A omit paragraph 5; and
b
in column B omit paragraph 5.
Michael Fabricant
Brooks Newmark
Two of the Lords Commissioners of Her Majesty’s Treasury
13th March 2012
The Secretary of State concurs.
Signed by the authority of the Secretary of State for Work and Pensions.
Steve Webb
Minister of State
Department for Work and Pensions
10th March 2012
The Department for Social Development concurs.
Sealed with the Official Seal of the Department for Social Development on 5th March 2012
Anne McCleary
Senior Officer of the Department for Social Development
5th March 2012 |
The Housing Benefit (Amendment) Regulations 2012
In accordance with section 176(1) of the Social Security Administration Act 1992 , the Secretary of State has consulted with organisations appearing to him to be representative of the authorities concerned.
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Housing Benefit (Amendment) Regulations 2012.
2
Subject to paragraph (3), these Regulations come into force on 1st January 2013.
3
Regulations 3(2)(a), 4(2)(a), 5 and 6 come into force on 1st April 2013.
4
In these Regulations —
“the Housing Benefit Regulations ” means the Housing Benefit Regulations 2006 ; and
“the Housing Benefit (State Pension Credit) Regulations ” means the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 .
Amendment of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001
2
1
The Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 are amended as follows.
2
In regulation 8 (date from which a decision superseding an earlier decision takes effect) for paragraph (15) substitute —
15
A decision to which regulation 7A(2) applies shall take effect —
a
from 1st April in a case where the claimant’s weekly amount of eligible rent falls to be calculated in accordance with regulation 80(2)(b) or (c) of the Housing Benefit Regulations or, as the case may be, regulation 61(2)(b) or (c) of the Housing Benefit (State Pension Credit) Regulations; and
b
in any other case, from the first Monday in April.
.
Amendment of the Housing Benefit Regulations relating to the determination of the maximum rent ( LHA )
3
1
The Housing Benefit Regulations are amended as follows.
2
In regulation 13C (when a maximum rent (LHA) is to be determined) —
a
in paragraph (2)(d) —
i
at the end of paragraph (ii) omit “or”; and
ii
after paragraph (iii) add —
or
iv
notification of a change of a kind which affects the amount of the claimant’s cap rent as determined in accordance with regulation 13D (determination of a maximum rent (LHA)).
;
b
for paragraph (3) substitute —
3
This paragraph applies on 1st April in any year.
;
c
omit paragraph (4); and
d
in paragraph (6) omit the definition of “the LHA date”.
Amendment of the Housing Benefit (State Pension Credit) Regulations relating to the determination of the maximum rent (LHA)
4
1
The Housing Benefit (State Pension Credit) Regulations are amended as follows.
2
In regulation 13C (when a maximum rent (LHA) is to be determined) —
a
in paragraph (2)(d) —
i
at the end of paragraph (ii) omit “or”; and
ii
after paragraph (iii) add —
or
iv
notification of a change of a kind which affects the amount of the claimant’s cap rent as determined in accordance with regulation 13D (determination of a maximum rent (LHA)).
;
b
for paragraph (3) substitute —
3
This paragraph applies on 1st April in any year.
;
c
omit paragraph (4); and
d
in paragraph (6) omit the definition of “the LHA date”.
Amendment of the Housing Benefit Regulations relating to the determination of the maximum rent (social sector)
5
1
The Housing Benefit Regulations are amended as follows.
2
In regulation 2(1) (interpretation) —
a
in the definition of “eligible rent” , in paragraph (a) after “regulations 12B (eligible rent),” insert “12BA (eligible rent and maximum rent (social sector)),”; and
b
in the definition of “registered housing association” —
i
in paragraph (b) after “Housing Act 1996” add “or a registered social landlord within the meaning of Part 1 of that Act”; and
ii
in paragraph (c) after “Housing (Scotland) Act 2010” add “or a registered social landlord within the meaning of section 165 of that Act”.
3
In regulation 11(1) (eligible housing costs) after sub-paragraph (a) insert —
ab
regulations 12BA (eligible rent and maximum rent (social sector)), A13 (when a maximum rent (social sector) is to be determined) and B13 (determination of a maximum rent (social sector));
.
4
In regulation 12B (eligible rent) for paragraph (1) substitute —
1
The amount of a person’s eligible rent shall be determined in accordance with the provisions of this regulation except where any of the following provisions applies —
a
regulation 12BA (eligible rent and maximum rent (social sector));
b
regulation 12C (eligible rent and maximum rent);
c
regulation 12D (eligible rent and maximum rent (LHA));
d
paragraph 4 of Schedule 3 to the Consequential Provisions Regulations.
.
5
After regulation 12B insert —
Eligible rent and maximum rent (social sector)
12BA
1
This regulation applies where a maximum rent (social sector) has been, or is to be, determined in accordance with regulation A13 (when a maximum rent (social sector) is to be determined).
2
Except where paragraph (3) or (6) applies, the amount of a person’s eligible rent is the maximum rent (social sector).
3
Where the claimant occupies a dwelling which is the same as that occupied by the claimant at the date of death of a linked person, the eligible rent is —
a
the eligible rent which applied on the day before the death occurred; or
b
in a case where no eligible rent applied on that day, an eligible rent determined in accordance with regulation 12B(2),
where that eligible rent is more than the eligible rent determined in accordance with paragraph (2).
4
For the purpose of paragraph (3), a claimant is treated as occupying the dwelling if paragraph (13) of regulation 7 (circumstances in which a person is or is not to be treated as occupying a dwelling as his home) is satisfied and for that purpose paragraph (13) shall have effect as if sub-paragraph (b) of that paragraph were omitted.
5
Where a person’s eligible rent has been determined in accordance with paragraph (3) (protection on death), it shall apply until the first of the following events occurs —
a
the period of 12 months from the date of death has expired;
b
the determination of an eligible rent in accordance with paragraph (3) (protection on death) in relation to a subsequent death;
c
there is a change of circumstances and the relevant authority determines a new eligible rent in accordance with paragraph (2) which is equal to or more than the eligible rent determined in accordance with paragraph (3);
d
there is a change of dwelling; or
e
the determination of an eligible rent under regulation 12B.
6
Where the relevant authority is satisfied that the claimant or a linked person was able to meet the financial commitments for the dwelling when they were entered into, the eligible rent is an eligible rent determined in accordance with regulation 12B(2) where that eligible rent is more than the eligible rent determined in accordance with paragraph (2).
7
Paragraph (6) shall not apply where the claimant or the claimant’s partner was previously entitled to benefit in respect of an award of housing benefit which fell wholly or partly less than 52 weeks before the commencement of the claimant’s current award of housing benefit.
8
Where a person’s eligible rent has been determined in accordance with paragraph (6) (13 week protection), it shall apply until the first of the following events occurs —
a
the first 13 weeks of the claimant’s award of housing benefit have expired;
b
the determination of an eligible rent in accordance with paragraph (3) (protection on death);
c
there is a change of circumstances and the relevant authority determines a new eligible rent in accordance with paragraph (2) which is equal to or more than the eligible rent determined in accordance with paragraph (6);
d
there is a change of dwelling; or
e
the determination of an eligible rent under regulation 12B.
.
6
In regulation 12D (eligible rent and maximum rent (LHA)), in paragraph (7)(a)(iv) and (b)(iv) after “regulation 13” insert “, a maximum rent (social sector) by virtue of regulation A13”.
7
After regulation 12M (transitional protection – reduction in LHA) insert —
When a maximum rent (social sector) is to be determined
A13
1
Subject to paragraph (2), the relevant authority must determine a maximum rent (social sector) in accordance with regulation B13 (determination of a maximum rent (social sector)) where the relevant authority has not determined, and is not required to determine —
a
a maximum rent in accordance with regulation 13 (maximum rent); or
b
a maximum rent (LHA) by virtue of regulation 13C (when a maximum rent (LHA) is to be determined).
2
This regulation does not apply —
a
in a rent allowance case where the tenancy is an excluded tenancy of a type mentioned in any of paragraphs 4 to 11 of Schedule 2 (excluded tenancies) and the landlord is not a registered housing association;
b
in respect of shared ownership tenancies;
c
in respect of mooring charges for houseboats and payments in respect of the site on which a caravan or mobile home stands;
d
where the claimant or the claimant’s partner has attained the qualifying age for state pension credit, or where both have attained that age; or
e
where the dwelling is temporary accommodation.
3
In this regulation “temporary accommodation” means accommodation of a kind listed in paragraph (4) which the relevant authority makes available to the claimant, or which a registered housing association makes available to the claimant in pursuance of arrangements made with it by the authority —
a
to discharge any of the authority’s functions under Part 3 of the Housing Act 1985, Part 7 of the Housing Act 1996 or (in Scotland) Part 2 of the Housing (Scotland) Act 1987; or
b
to prevent the claimant being or becoming homeless within the meaning of Part 7 of the Housing Act 1996 or (in Scotland) Part 2 of the Housing (Scotland) Act 1987.
4
The accommodation referred to in paragraph (3) is —
a
accommodation —
i
provided for a charge, where that charge includes the provision of that accommodation and some cooked or prepared meals which are also cooked or prepared, and consumed, in that accommodation or associated premises; or
ii
provided in a hotel, guest house, lodging house or similar establishment,
but does not include accommodation which is provided in a care home, an independent hospital or a hostel;
b
accommodation which the authority or registered housing association holds on a lease and, in the case of an authority in England, is held outside the Housing Revenue Account on a lease granted for a term not exceeding 10 years;
c
accommodation which the authority or registered housing association has a right to use under an agreement other than a lease with a third party.
Determination of a maximum rent (social sector)
B13
1
The maximum rent (social sector) is determined in accordance with paragraphs (2) to (4).
2
The relevant authority must determine a limited rent by —
a
determining the amount that the claimant’s eligible rent would be in accordance with regulation 12B(2) without applying regulation 12B(4) and (6);
b
where the number of bedrooms in the dwelling exceeds the number of bedrooms to which the claimant is entitled in accordance with paragraph (5), reducing that amount by the appropriate percentage set out in paragraph (3); and
c
where more than one person is liable to make payments in respect of the dwelling, apportioning the amount determined in accordance with sub-paragraphs (a) and (b) between each such person having regard to all the circumstances, in particular, the number of such persons and the proportion of rent paid by each person.
3
The appropriate percentage is —
a
14% where the number of bedrooms in the dwelling exceeds by one the number of bedrooms to which the claimant is entitled; and
b
25% where the number of bedrooms in the dwelling exceeds by two or more the number of bedrooms to which the claimant is entitled.
4
Where it appears to the relevant authority that in the particular circumstances of any case the limited rent is greater than it is reasonable to meet by way of housing benefit, the maximum rent (social sector) shall be such lesser sum as appears to that authority to be an appropriate rent in that particular case.
5
The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant’s dwelling as their home (and each person shall come within the first category only which is applicable) —
a
a couple (within the meaning of Part 7 of the Act);
b
a person who is not a child;
c
two children of the same sex;
d
two children who are less than 10 years old;
e
a child,
and one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care (or in any case where each of them is).
.
8
In Schedule 2 (excluded tenancies) in paragraph 3 —
a
omit sub-paragraph (2)(a); and
b
in sub-paragraph (3) omit “(a) or”.
9
In Part 2 (application of the regulations) of Schedule 10 (former pathfinder authorities) for paragraph 4 substitute —
4
In regulation 12B(1) (eligible rent) after sub-paragraph (c) insert —
ca
any of regulations 12E to 12K (transitional protection for pathfinder cases);
.
.
Amendment of the Housing Benefit (State Pension Credit) Regulations
6
1
The Housing Benefit (State Pension Credit) Regulations are amended as follows.
2
In regulation 2(1) (interpretation) in the definition of “registered housing association” —
a
in paragraph (b) after “Housing Act 1996” add “or a registered social landlord within the meaning of Part 1 of that Act”; and
b
in paragraph (c) after “Housing (Scotland) Act 2010” add “or a registered social landlord within the meaning of section 165 of that Act”.
Signed by authority of the Secretary of State for Work and Pensions.
Freud
Parliamentary Under-Secretary of State,
Department for Work and Pensions
3rd December 2012 |
The Traffic Management (London Borough of Merton) Permit Scheme Order 2012
The Secretary of State for Transport having approved the London Borough of Merton Permit Scheme under section 34(2) of the Traffic Management Act 2004 makes this Order in exercise of the powers conferred by sections 34(4) and (5) and 39(2) of that Act.
Citation and commencement
1
This Order may be cited as the Traffic Management (London Borough of Merton) Permit Scheme Order 2012 and comes into force on 14th January 2013.
Interpretation
2
In this Order —
“the London Borough of Merton Permit Scheme” means the permit scheme set out in the Schedule in terms commonly known as the “London Permit Scheme” which was prepared and submitted to the Secretary of State by the London Borough of Merton and has been approved by the Secretary of State; and
“specified streets” has the meaning given by regulation 8 of the Traffic Management Permit Scheme (England) Regulations 2007 .
Commencement of Permit Scheme
3
The London Borough of Merton Permit Scheme comes into effect on 14th January 2013.
Application of Part 8 of the Traffic Management Permit Scheme (England) Regulations 2007
4
Part 8 of the Traffic Management Permit Scheme (England) Regulations 2007 shall apply to the specified streets within the London Borough of Merton Permit Scheme.
Signed by authority of the Secretary of State for Transport
Norman Baker
Parliamentary Under Secretary of State
Department for Transport
10th December 2012
SCHEDULE
THE LONDON BOROUGH OF MERTONPERMIT SCHEME
Article 2 |
The Pensions Act 2008 (Commencement No. 12) Order 2012
The Secretary of State for Work and Pensions makes the following Order in exercise of the powers conferred by section 149(1) and (6) of the Pensions Act 2008 .
Citation
1
This Order may be cited as the Pensions Act 2008 (Commencement No. 12) Order 2012.
Commencement of provisions
2
1
Section 14 of the Pensions Act 2008 (review of earnings trigger and qualifying earnings band), in so far as it is not already in force, comes into force on 6th March 2012.
2
The following provisions of that Act come into force on 7th March 2012, in so far as they are not already in force —
a
section 15A (power to specify rounded figures), and
b
section 28 (certification that quality requirement or alternative quality requirement is satisfied).
Signed by authority of the Secretary of State for Work and Pensions.
Steve Webb
Minister of State,
Department for Work and Pensions
3rd March 2012 |
The Jobseeker’s Allowance (Members of the Reserve Forces) Regulations 2012
In accordance with section 173(1)(b) of the Social Security Administration Act 1992 , the Secretary of State has obtained the agreement of the Social Security Advisory Committee that proposals in respect of these Regulations should not be referred to it.
Citation and commencement
1
1
These Regulations may be cited as the Jobseeker’s Allowance (Members of the Reserve Forces) Regulations 2012.
2
They come into force on 30th July 2012.
Amendment of the Jobseeker’s Allowance Regulations 1996
2
1
The Jobseeker’s Allowance Regulations 1996 are amended as follows.
2
In regulation 1(3) (citation, commencement and interpretation) , after the definition of “concessionary payment”, insert —
“the Contributions Regulations ” means the Social Security (Contributions) Regulations 2001 ;
.
3
In regulation 14(1) (circumstances in which a person is to be treated as available) , after sub-paragraph (u) add —
v
if he is engaged in annual continuous training as a member of any territorial or reserve force prescribed in Part 1 of Schedule 6 to the Contributions Regulations, for a maximum of 15 days in any calendar year.
.
4
In regulation 19(1) (circumstances in which a person is to be treated as actively seeking employment) , after sub-paragraph (x) add —
y
in any week during which he is engaged for not less than 3 days in annual continuous training as a member of any territorial or reserve force prescribed in Part 1 of Schedule 6 to the Contributions Regulations, for a maximum of 15 days in any calendar year.
.
5
In regulation 30(c) (circumstances in which a claimant is to be regarded as having good cause for failing to comply with a notification under regulation 23 or 23A) , for “(r) to (u)” substitute “(r) to (v)”.
6
In regulation 94 (calculation of earnings derived from employed earner’s employment and income other than earnings) , after paragraph (2B), insert —
2C
Earnings derived by a claimant as a member of any territorial or reserve force prescribed in Part 1 of Schedule 6 to the Contributions Regulations in respect of a period of annual continuous training for a maximum of 15 days in any calendar year, whether paid to the claimant alone or together with other earnings derived from the same source, are to be taken into account —
a
in the case of a period of training exceeding 14 days, over a period of 14 days, or which is equal to the duration of the training period, or
b
in any other case, over a period which is equal to the duration of the training period.
2D
The period referred to in paragraph (2C) over which earnings are to be taken into account shall begin on the date on which they are treated as paid under regulation 96.
.
7
In Schedule 6 (sums to be disregarded in the calculation of earnings), for paragraph 19 substitute —
19
1
In the case of a contribution-based jobseeker’s allowance, where by reason of earnings to which sub-paragraph (3) applies (in aggregate with the claimant’s other earnings (if any) calculated in accordance with this Part) the claimant would (apart from this paragraph) have a personal rate of less than 10 pence, the amount of such earnings but only to the extent that that amount exceeds the claimant’s personal rate less 10 pence.
2
In the case of an income-based jobseeker’s allowance, where earnings to which sub-paragraph (3) applies (in aggregate with the claimant’s other income (if any) calculated in accordance with this Part) exceed the applicable amount less 10 pence, the amount of those earnings corresponding to that excess.
3
This sub-paragraph applies to earnings, in so far as they exceed the amount disregarded under paragraph 9, derived by the claimant from employment as a member of any territorial or reserve force prescribed in Part 1 of Schedule 6 to the Contributions Regulations in respect of a period of annual continuous training for a maximum of 15 days in any calendar year.
4
In sub-paragraph (1), “personal rate” means the rate for the claimant calculated as specified in section 4(1) of the Act.
.
8
In Schedule 6A (sums to be disregarded in the calculation of earnings of members of joint-claim couples) , omit paragraph 5.
Signed by authority of the Secretary of State for Work and Pensions
C. Grayling
Minister for Employment
Department for Work and Pensions
20th June 2012 |
The Rehabilitation Courses (Relevant Drink Offences) Regulations 2012
The Secretary of State for Transport makes the following Regulations in exercise of the powers conferred by sections 34B(3) and (10), 34BA(5) and 34C(4) of the Road Traffic Offenders Act 1988 .
Introductory
Citation, commencement and application
1
1
These Regulations may be cited as the Rehabilitation Courses (Relevant Drink Offences) Regulations 2012.
2
Regulations 1 to 4, 5(1) and (2), 7(1) and (4)(a) and 12, in so far as it relates to regulation 3, come into force on 21st December 2012.
3
All the other regulations, and regulation 12 for remaining purposes, come into force on 24th June 2013.
4
Regulations 2 to 12 apply in relation to England and Scotland only.
Interpretation
2
In these Regulations —
“ the Act ” means the Road Traffic Offenders Act 1988; and
“course” means a course for the purposes of section 34A of the Act in relation to the conviction of a person for a relevant drink offence.
Approval of courses
Applications for approval
3
1
An application for approval of a course must be in writing and be accompanied by such information as the Secretary of State may reasonably require and the fee specified in regulation 5(1).
2
The Secretary of State may refuse to consider an application if the applicant fails to comply with the requirements of paragraph (1).
Secretary of State’s decision
4
1
The Secretary of State must give a decision in writing on each application for approval.
2
Where the Secretary of State decides to refuse to grant approval of a course or to grant approval subject to a condition, the decision must be accompanied by the reasons for the refusal or the imposition of the condition.
Fees
5
1
Except where paragraph (2) applies, the fee payable on an application for approval of a course is £1000.
2
Where an approved course is subject to a condition relating to the area in respect of which that course is to be provided and an application is made for the approval of that course in respect of its provision in another or a different area, the fee payable upon that application is not to exceed the sum of the costs reasonably incurred in carrying out the work to assess the application or £1000, whichever is the lower.
3
If the Secretary of State grants approval of a course a fee (a “continuing approval fee”) calculated in accordance with paragraph (4) is payable by the course provider to the Secretary of State in accordance with paragraph (5) and if not paid is immediately recoverable as a civil debt.
4
The continuing approval fee is an amount equal to £7 multiplied by the number of relevant offenders.
5
The continuing approval fee is payable on the relevant day whilst a course is approved and, where a course ceases to be approved, is payable on the fourteenth day after approval ceases.
6
For the purposes of this regulation —
“relevant day” means the day which falls upon each of the dates of 14th January, 14th April, 14th July and 14th October in any particular year;
“relevant offender” means, in relation to an approved course, a person who has completed that course during the relevant period; and
“relevant period” means the period of three months ending on 31st March, 30th June, 30th September or 31st December which falls immediately before the relevant day.
Withdrawal of approval
6
1
The Secretary of State may withdraw approval of a course if satisfied that the course provider has —
a
failed to observe a condition imposed on approval of the course;
b
disregarded guidance given under section 34C(1) of the Act; or
c
ceased to be an appropriate person to provide the course and to administer its provision efficiently or effectively.
2
If the Secretary of State proposes to withdraw approval of a course, written notice of the proposal must be given to the course provider stating —
a
the reasons for the proposal; and
b
the course provider’s right to make representations concerning it.
3
Where the Secretary of State gives notice to a course provider under paragraph (2) —
a
that person may, not later than the period of 28 days beginning with the day on which notice under paragraph (2) is given, make representations in writing to the Secretary of State concerning the proposal;
b
the Secretary of State must not decide whether or not to withdraw approval until after the expiration of the period referred to in sub-paragraph (a); and
c
if any such representations are made within the period referred to in sub-paragraph (a) the Secretary of State must take those representations into consideration before deciding whether or not to withdraw approval.
4
The Secretary of State must, on making a decision to withdraw the approval of a course, give notice in writing to the course provider and the notice must state —
a
the date, not being less than 14 days after the date on which the notice is given, on which the withdrawal is, subject to regulation 7(3), to take effect;
b
the reasons for the decision to withdraw; and
c
the course provider’s right to appeal to the First-tier Tribunal under regulation 7(2)(a).
5
Paragraphs (2) to (4) do not apply if the Secretary of State —
a
is satisfied that, by reason of serious misconduct on the part of the course provider or a person acting on behalf or under the direction of the course provider, the approval must be withdrawn without delay; and
b
gives notice in writing to the course provider to that effect which states —
i
the nature of the misconduct; and
ii
the course provider’s right to —
aa
appeal to the First-tier Tribunal under regulation 7(2)(b); and
bb
apply to that Tribunal for the reinstatement of approval.
6
A notice under paragraph (2), (4) or (5)(b) may be given by delivering it to a course provider, leaving it at the last known address of a course provider or sending it to the course provider by first class post.
Appeals
7
1
Where a person has made an application for approval of a course and the application —
a
is refused, or
b
is approved subject to conditions,
that person may appeal to the First-tier Tribunal against the Secretary of State’s decision.
2
A course provider may appeal to the First-tier Tribunal against the Secretary of State’s decision where a notice withdrawing approval of a course has been given under —
a
regulation 6(4); or
b
regulation 6(5)(b).
3
Where an appeal is made under paragraph (2)(a) within 14 days of the date on which notice is given under regulation 6(4), the notice of withdrawal of approval is suspended pending the decision of the Tribunal in the matter.
4
On the appeal the First-tier Tribunal may make such order as it thinks fit —
a
if the appeal is under paragraph (1), granting (whether or not subject to conditions) or refusing an application, or
b
if the appeal is under paragraph (2), withdrawing, reinstating or continuing (whether or not subject to conditions) an approval.
Conduct of courses
Fees for courses
8
1
The maximum fee (an “attendance fee”) which a course provider may require a person to pay for attendance on a course is £250.
2
A course provider may require payment of an attendance fee in advance of attendance or in instalments.
3
An attendance fee must be paid in full before a person attending a course has completed it.
Monitoring of courses and course providers
9
1
A course provider must, on a request from the Secretary of State, provide to the Secretary of State —
a
such information concerning the course provider’s administrative arrangements and the conduct of courses as the Secretary of State may reasonably require and in such manner as the Secretary of State may reasonably require; and
b
records or other documents (in whatever form they are held) which are kept for the purposes of compliance with sections 34A to 34C of the Act and these Regulations.
2
Information or documents (as the case may be) requested under paragraph (1) must be provided by the course provider within such time limit as the Secretary of State may reasonably stipulate or, where no time limit is stipulated, as soon as reasonably possible.
Course completion
10
The certificate referred to in section 34B(1) of the Act is one which is in the form set out in Schedule 1.
11
A notice under section 34B(5) of the Act —
a
is one which is in the form set out in Schedule 2; and
b
is to be treated as given to a person if —
i
addressed to that person at that person’s last known address,
ii
sent by post to that address, and
iii
such posting is certified by the carrier,
notwithstanding that it was returned as undelivered or was for any other reason not received by that person.
Publication of information
Information about courses and course providers
12
The Secretary of State may publish information about course providers, the content or cost of courses or the methods by which courses are conducted which was obtained by the Secretary of State as the appropriate national authority whether under regulation 3 or 9 or otherwise.
Revocation
13
The Road Traffic (Courses for Drink-Drive Offenders) Regulations 1992 are revoked.
Signed by authority of the Secretary of State for Transport
Stephen Hammond
Parliamentary Under Secretary of State
Department for Transport
22nd November 2012
SCHEDULE 1
Regulation 10
SCHEDULE 2
Form of Notice of Non-completion of Course
Regulation 11(a) |
The Welfare Reform Act 2012 (Commencement No. 2) Order 2012
The Secretary of State for Work and Pensions makes the following Order in exercise of the powers conferred by section 150(3) and (4)(a) of the Welfare Reform Act 2012 .
Citation and interpretation
1
1
This Order may be cited as the Welfare Reform Act 2012 (Commencement No. 2) Order 2012.
2
In this Order —
a
“ the Act ” means the Welfare Reform Act 2012;
b
“the Administration Act ” means the Social Security Administration Act 1992 ; and
c
“the penalties” means the penalties mentioned in sections 115B(4) (administrative penalties: colluding employers), 115C(4) (incorrect statements etc ) and 115D(4) (failure to disclose information) of the Administration Act .
Appointed days
2
1
10th May 2012 is the day appointed for the coming into force of the following provisions of the Act —
a
section 116(1) (civil penalties for incorrect statements and failures to disclose information) for the purpose only of prescribing amounts under section 115C(2) or 115D(1) or (2) of the Administration Act; and
b
section 116(2).
2
6th June 2012 is the day appointed for the coming into force of sections 122 to 125 of the Act (administration of tax credits).
3
10th June 2012 is the day appointed for the coming into force of the following provisions of the Act —
a
section 44(5) (claimant commitment for jobseeker’s allowance - definition of ‘employment officer’);
b
section 46(1) (sanctions), for the purpose only of exercising any power to make regulations under sections 19 to 19B of the Jobseekers Act 1995; and
c
i
section 46(2) (sanctions), and
ii
section 46(3) (sanctions), for the purpose only of exercising any power to make regulations.
4
1st July 2012 is the day appointed for the coming into force of the following provisions of the Act —
a
section 105(1) (recovery of benefit payments), to the extent that it inserts section 71ZC(1) (deduction from benefit) of the Administration Act, for the purpose only of prescribing under section 71ZC(1) the benefits from which deductions may be made in order to recover the penalties ;
b
section 105(1) to the extent that it inserts section 71ZD (deduction from earnings) of the Administration Act; and
c
section 106 (deductions from earnings: other cases).
5
1st October 2012 is the day appointed for the coming into force of the following provisions of the Act —
a
section 105(1) (recovery of benefit payments) to the extent that it inserts sections 71ZC(1) (deduction from benefit) and 71ZE (recovery by court action) of the Administration Act, for the purpose only of enabling recovery of the penalties to take place by those methods;
b
section 105(4) (amendments to section 115B of the Administration Act); and
c
section 116(1) (civil penalties for incorrect statements and failures to disclose information), in so far as not already in force.
6
14th October 2012 is the day appointed for the coming into force of the following provisions of the Act —
a
section 45 (interviews);
b
section 46 (sanctions), in so far as not already in force;
c
paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 10(1) and (3), 12 and 16(1) and (2)(c) of Schedule 7 (jobseeker’s allowance in interim period: consequential amendment) and section 48 in so far as it relates to those paragraphs; and
d
Part 3 of Schedule 14 (repeals), save for the provision in relation to section 35(1) of the Jobseekers Act 1995.
Signed by authority of the Secretary of State for Work and Pensions.
Freud
Parliamentary Under-Secretary of State,
Department for Work and Pensions
9th May 2012 |
The Copyright (Repeal of the Copyright Act 1911) (Jersey) Order 2012
Accordingly, Her Majesty, by and with the advice of Her Privy Council, in exercise of the powers conferred on Her by section 170 of, and paragraph 36(3) of Schedule 1 to, the Copyright, Designs and Patents Act 1988 makes the following Order:
Citation and Commencement
1
This Order may be cited as the Copyright (Repeal of the Copyright Act 1911) (Jersey) Order 2012 and comes into force on the day on which Part 1 of the Intellectual Property (Unregistered Rights) (Jersey) Law 2011 comes into force in its entirety.
Repeal of the Copyright Act 1911 as it extends to Jersey
2
To the extent that it has effect in the Bailiwick of Jersey, the Copyright Act 1911 is repealed.
Richard Tilbrook
Clerk of the Privy Council |
The Air Passenger Duty (Amendment) Regulations 2012
The Commissioners for Her Majesty’s Revenue and Customs make the following Regulations in exercise of the powers conferred by sections 33(7), 33A(4) and 43(1) of the Finance Act 1994 :
Citation and commencement
1
1
These Regulations may be cited as the Air Passenger Duty (Amendment) Regulations 2012.
2
Apart from regulation 5, which comes into force on 1st April 2013, they come into force on 1st January 2013.
Amendments to the Air Passenger Duty Regulations 1994
2
Amend the Air Passenger Duty Regulations 1994 as follows.
3
In regulation 2 (interpretation) —
a
in paragraph (1), for the definition of “the register” substitute —
“the register” means–
the register of operators which the Commissioners are required to keep by virtue of section 33(1) of the Act; and
if the Commissioners have decided to keep a register of operators under section 33A of the Act, that register.
;
b
in paragraph (2), after “33(4)” insert “or 33A(4)”.
4
In regulation 3 (time for giving notice of liability to register) after “33(4)” insert “or 33A(4)”.
5
In regulation 12 (passengers) —
a
for “(a)(iii)” substitute “(c)”; and
b
for “employee” (in all places it occurs) substitute “person”.
6
In paragraph (e) of Schedule 1 (information to be included in the register) after “33(4)” insert “or 33A(4)”.
Simon Bowles
Nick Lodge
Two of the Commissioners for Her Majesty’s Revenue and Customs
3rd December 2012 |
The Welsh Language (Police Names) Order 2012
The Secretary of State makes the following Order in exercise of the power conferred by section 25(1) of the Welsh Language Act 1993 .
Citation and commencement
1
This Order may be cited as the Welsh Language (Police Names) Order 2012, and comes into force on 22nd November 2012.
Welsh names
2
There are hereby conferred on those police and crime commissioners established under section 1 of the Police Reform and Social Responsibility Act 2011 which are, by virtue of section 1(3) of that Act, known by the names listed in column 1 of Schedule 1 to this Order, the alternative names in Welsh specified in column 2 of that Schedule.
3
There are hereby conferred on those chief constables established under section 2 of the Police Reform and Social Responsibility Act 2011 which are, by virtue of paragraph 3 of Schedule 2 to that Act, known by the names listed in column 1 of Schedule 2 to this Order, the alternative names in Welsh specified in column 2 of that Schedule.
Damian Green
Minister of State
Home Office
12th October 2012
SCHEDULE 1
Column 1
English Name
Column 2
Welsh Name
The Police and Crime Commissioner for Dyfed Powys Comisiynydd yr Heddlu a Throseddu ar gyfer Dyfed Powys The Police and Crime Commissioner for Gwent Comisiynydd yr Heddlu a Throseddu ar gyfer Gwent The Police and Crime Commissioner for North Wales Comisiynydd yr Heddlu a Throseddu ar gyfer Gogledd Cymru The Police and Crime Commissioner for South Wales Comisiynydd yr Heddlu a Throseddu ar gyfer De Cymru
SCHEDULE 2
Column 1
English Name
Column 2
Welsh Name
The Chief Constable of Dyfed Powys Police Prif Gwnstabl Heddlu Dyfed Powys The Chief Constable of Gwent Police Prif Gwnstabl Heddlu Gwent The Chief Constable of North Wales Police Prif Gwnstabl Heddlu Gogledd Cymru The Chief Constable of South Wales Police Prif Gwnstabl Heddlu De Cymru |
The Sexual Offences Act 2003 (Remedial) Order 2012
Accordingly, the Secretary of State makes the following Order in the exercise of the powers conferred by section 10(2) of, and paragraph 1(1)(a), (c) and (d), (2) and (3) of Schedule 2 to, the Human Rights Act 1998:
Citation, commencement, extent and interpretation
1
1
This Order may be cited as the Sexual Offences Act 2003 (Remedial) Order 2012 and shall come into force 14 days after the day on which it is made.
2
This Order extends to England and Wales only.
3
In this Order, “the 2003 Act ” means the Sexual Offences Act 2003.
Amendment of the Sexual Offences Act 2003
2
The 2003 Act is amended in accordance with article 3.
3
After section 91 insert —
Review of indefinite notification requirements: qualifying relevant offender
91A
1
A qualifying relevant offender may apply to the relevant chief officer of police for a determination that the qualifying relevant offender is no longer subject to the indefinite notification requirements (“an application for review”).
2
A qualifying relevant offender means a relevant offender who, on the date on which he makes an application for review, is —
a
subject to the indefinite notification requirements; and
b
not subject to a sexual offences prevention order under section 104(1) or an interim sexual offences prevention order under section 109(3).
3
The “indefinite notification requirements” mean the notification requirements of this Part for an indefinite period by virtue of —
a
section 80(1);
b
section 81(1); or
c
a notification order made under section 97(5).
4
In this Part, the “relevant chief officer of police” means, subject to subsection (5), the chief officer of police for the police area in which a qualifying relevant offender is recorded as residing or staying in the most recent notification given by him under section 84(1) or 85(1).
5
Subsection (6) applies if a qualifying relevant offender is recorded as residing or staying at more than one address in the most recent notification given by him under section 84(1) or 85(1).
6
If this subsection applies, the “relevant chief officer of police” means the chief officer of police for the police area in which, during the relevant period, the qualifying relevant offender has resided or stayed on a number of days which equals or exceeds the number of days on which he has resided or stayed in any other police area.
7
In subsection (6), “the relevant period” means the period of 12 months ending on the day on which the qualifying relevant offender makes an application for review.
Review of indefinite notification requirements: application for review and qualifying dates
91B
1
An application for review must be in writing and may be made on or after the qualifying date or, as the case may be, the further qualifying date.
2
Subject to subsection (7), the qualifying date is —
a
where the qualifying relevant offender was 18 or over on the relevant date, the day after the end of the 15 year period beginning with the day on which the qualifying relevant offender gives the relevant notification; or
b
where the qualifying relevant offender was under 18 on the relevant date, the day after the end of the 8 year period beginning with the day on which the qualifying relevant offender gives the relevant notification.
3
Subject to subsections (4) to (6), the further qualifying date is the day after the end of the 8 year period beginning with the day on which the relevant chief officer of police makes a determination under section 91C to require a qualifying relevant offender to remain subject to the indefinite notification requirements.
4
Subsection (5) applies if the relevant chief officer of police, when making a determination under section 91C to require a qualifying relevant offender to remain subject to the indefinite notification requirements, considers that the risk of sexual harm posed by a qualifying relevant offender is sufficient to justify a continuation of those requirements after the end of the 8 year period beginning with the day on which the determination is made.
5
If this subsection applies, the relevant chief officer of police may make a determination to require a qualifying relevant offender to remain subject to the indefinite notification requirements for a period which may be no longer than the 15 year period beginning with the day on which the determination is made.
6
If subsection (5) applies, the further qualifying date is the day after the end of the period determined under that subsection.
7
The qualifying date must not be earlier than the expiry of the fixed period specified in a notification continuation order made in relation to a qualifying relevant offender in accordance with sections 88A to 88I .
8
The relevant chief officer of police within 14 days of receipt of an application for review —
a
must give an acknowledgment of receipt of the application to the qualifying relevant offender, and
b
may notify a responsible body that the application has been made.
9
Where a responsible body is notified of the application for review under subsection (8)(b) and holds information which it considers to be relevant to the application, the responsible body must give such information to the relevant chief officer of police within 28 days of receipt of the notification.
10
In this section “the relevant notification” means the first notification which the relevant offender gives under section 83, 84 or 85 when he is first released after —
a
being remanded in or committed to custody by an order of a court in relation to the conviction for the offence giving rise to the indefinite notification requirements;
b
serving a sentence of imprisonment or a term of service detention in relation to that conviction;
c
being detained in hospital in relation to that conviction.
11
For the purposes of this Part —
a
“responsible body” means —
i
the probation trust for any area that includes any part of the police area concerned,
ii
in relation to any part of the police area concerned for which there is no probation trust, each provider of probation services which has been identified as a relevant provider of probation services for the purposes of section 325 of the Criminal Justice Act 2003 by arrangements under section 3 of the Offender Management Act 2007 ,
iii
the Minister of the Crown exercising functions in relation to prisons (and for this purpose “prison” has the same meaning as in the Prison Act 1952 ), and
iv
each body mentioned in section 325(6) of the Criminal Justice Act 2003, but as if the references in that subsection to the relevant area were references to the police area concerned;
b
“risk of sexual harm” means a risk of physical or psychological harm to the public in the United Kingdom or any particular members of the public caused by the qualifying relevant offender committing one or more of the offences listed in Schedule 3.
Review of indefinite notification requirements: determination of application for review
91C
1
The relevant chief officer of police must, within 6 weeks of the latest date on which any body to which a notification has been given under section 91B(8)(b) may give information under section 91B(9) —
a
determine the application for review, and
b
give notice of the determination to the qualifying relevant offender.
2
For the purposes of the determination of an application for review under this section, a qualifying relevant offender must satisfy the relevant chief officer of police that it is not necessary for the purpose of protecting the public or any particular members of the public from sexual harm for the qualifying relevant offender to remain subject to the indefinite notification requirements.
3
If the relevant chief officer of police determines under this section that the qualifying relevant offender should remain subject to the indefinite notification requirements, the notice of the determination must —
a
contain a statement of reasons for the determination, and
b
inform the qualifying relevant offender that he may appeal the determination in accordance with section 91E.
4
If the relevant chief officer of police determines under this section that a qualifying relevant offender should not remain subject to the indefinite notification requirements, the qualifying relevant offender ceases to be subject to the indefinite notification requirements on the date of receipt of the notice of determination.
5
The Secretary of State may by order amend the period in subsection (1).
Review of indefinite notification requirements: factors applying to determination under section 91C
91D
1
In determining an application for review under section 91C, the relevant chief officer of police must —
a
have regard to information (if any) received from a responsible body;
b
consider the risk of sexual harm posed by the qualifying relevant offender and the effect of a continuation of the indefinite notification requirements on the offender; and
c
take into account the matters listed in subsection (2).
2
The matters are —
a
the seriousness of the offence in relation to which the qualifying relevant offender became subject to the indefinite notification requirements;
b
the period of time which has elapsed since the qualifying relevant offender committed the offence (or other offences);
c
where the qualifying relevant offender falls within section 81(1), whether the qualifying relevant offender committed any offence under section 3 of the Sex Offenders Act 1997 ;
d
whether the qualifying relevant offender has committed any offence under section 91;
e
the age of the qualifying relevant offender at the qualifying date or further qualifying date;
f
the age of the qualifying relevant offender at the time the offence referred to in paragraph (a) was committed;
g
the age of any person who was a victim of any such offence (where applicable) and the difference in age between the victim and the qualifying relevant offender at the time the offence was committed;
h
any assessment of the risk posed by the qualifying relevant offender which has been made by a responsible body under the arrangements for managing and assessing risk established under section 325 of the Criminal Justice Act 2003;
i
any submission or evidence from a victim of the offence giving rise to the indefinite notification requirements;
j
any convictions or findings made by a court (including by a court in Scotland, Northern Ireland or countries outside the United Kingdom) in respect of the qualifying relevant offender for any offence listed in Schedule 3 other than the one referred to in paragraph (a);
k
any caution which the qualifying relevant offender has received for an offence (including for an offence in Northern Ireland or countries outside the United Kingdom) which is listed in Schedule 3;
l
any convictions or findings made by a court in Scotland, Northern Ireland or countries outside the United Kingdom in respect of the qualifying relevant offender for any offence listed in Schedule 5 where the behaviour of the qualifying relevant offender since the date of such conviction or finding indicates a risk of sexual harm;
m
any other submission or evidence of the risk of sexual harm posed by the qualifying relevant offender;
n
any evidence presented by or on behalf of the qualifying relevant offender which demonstrates that the qualifying relevant offender does not pose a risk of sexual harm; and
o
any other matter which the relevant chief officer of police considers to be appropriate.
3
In this section, a reference to a conviction, finding or caution for an offence committed in a country outside the United Kingdom means a conviction, finding or caution for an act which —
a
constituted an offence under the law in force in the country concerned, and
b
would have constituted an offence listed in Schedule 3 or Schedule 5 if it had been done in any part of the United Kingdom.
Review of indefinite notification requirements: appeals
91E
1
A qualifying relevant offender may appeal against a determination of the relevant chief officer of police under section 91C.
2
An appeal under this section may be made by complaint to a magistrates’ court within the period of 21 days beginning with the day of receipt of the notice of determination.
3
A qualifying relevant offender may appeal under this section to any magistrates’ court in a local justice area which includes any part of the police area for which the chief officer is the relevant chief officer of police.
4
If the court makes an order that a qualifying relevant offender should not remain subject to the indefinite notification requirements, the qualifying relevant offender ceases to be subject to the indefinite notification requirements on the date of the order.
Review of indefinite notification requirements: guidance
91F
1
The Secretary of State must issue guidance to relevant chief officers of police in relation to the determination by them of applications made under section 91B.
2
The Secretary of State may, from time to time, revise the guidance issued under subsection (1).
3
The Secretary of State must arrange for any guidance issued or revised under this section to be published in such manner as the Secretary of State considers appropriate.
Lynne Featherstone
Parliamentary Under-Secretary of State
Home Office
16th July 2012 |
The Industrial Injuries Benefit (Injuries arising before 5th July 1948) Regulations 2012
The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred by section 64(3) of the Welfare Reform Act 2012 .
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Industrial Injuries Benefit (Injuries arising before 5 July 1948) Regulations 2012 and come into force on 5th December 2012.
2
In these Regulations “the Contributions and Benefits Act ” means the Social Security Contributions and Benefits Act 1992
Payment of industrial injuries benefit where compensation or benefits were previously payable under Schedule 8 to the Contributions and Benefits Act
2
Where, before the commencement of section 64 of the Welfare Reform Act 2012 (injuries arising before 5th July 1948),compensation or benefits were payable to any person under a provision of Schedule 8 to the Contributions and Benefits Act (industrial injuries and diseases (old cases)) mentioned in column (1) of the table in the Schedule to these Regulations, the rate or amount of industrial injuries benefit payable to that person is the corresponding rate or amount set out in column (2) of that table.
Claims made but not determined before 5th December 2012
3
Any claim for compensation or benefits that was made in accordance with section 111 of, and Schedule 8 to, the Contributions and Benefits Act but which was not determined before the coming into force of these Regulations, is to be treated as a claim for industrial injuries benefit.
Signed by authority of the Secretary of State for Work and Pensions.
Freud
Parliamentary Under-Secretary of State,
Department for Work and Pensions
1st November 2012
SCHEDULE
Regulation 2
RATES OF INDUSTRIAL INJURIES BENEFIT CORRESPONDING TO COMPENSATION OR BENEFIT PREVIOUSLY PAYABLE UNDER SCHEDULE 8 TO THE CONTRIBUTIONS AND BENEFITS ACT
(1) Compensation or benefit payable before 5th December 2012 under Schedule 8 to the Contributions and Benefits Act (2) Corresponding rate or amount of industrial injuries benefit payable under the Contributions and Benefits Act from 5th December 2012 Incapacity allowance
Major incapacity allowance under paragraph 2(6)(b) of Schedule 8
The rate applicable for 100% degree of disablement as specified in column (2) of the table in Part 5 of Schedule 4 Lesser incapacity allowance under paragraph 2(6)(c) of Schedule 8 payable at the weekly rate of £4.85, £13.15 or £22.05 The rate applicable for 20% degree of disablement as specified in column (2) of the table in Part 5 of Schedule 4 Lesser incapacity allowance under paragraph 2(6)(c) of Schedule 8 payable at the weekly rate of £31.95 or £45.90 The rate applicable for 30% degree of disablement as specified in column (2) of the table in Part 5 of Schedule 4 Lesser incapacity allowance under paragraph 2(6)(c) of Schedule 8 payable at the weekly rate of £58.45 The rate applicable for 40% degree of disablement as specified in column (2) of the table in Part 5 of Schedule 4 Total disablement benefit
Allowance in respect of total disablement under paragraph 6(2)(a) of Schedule 8
The rate applicable for 100% degree of disablement as specified in column (2) of the table in Part 5 of Schedule 4 Partial disablement allowance
Allowance in respect of disablement which is not total under paragraph 6(2)(b) of Schedule 8
The rate applicable for 40% degree of disablement as specified in column (2) of the table in Part 5 of Schedule 4 Unemployability supplement
Unemployability supplement in accordance with paragraph 6(4)(a) or 7(2)(c)(i) of Schedule 8
Unemployability supplement at the rate specified in paragraphs 5 and 6 of Part 5 of Schedule 4 Exceptionally severe disablement allowance
Exceptionally severe disablement allowance in accordance with paragraph 6(4)(b) or paragraph7(2)(c)(iii) of Schedule 8
Exceptionally severe disablement allowance at the rate specified in paragraph 3 of Part 5 of Schedule 4 Constant attendance allowance
Increase of allowance in respect of constant attendance in accordance with paragraph 6(4)(b) or of disablement pension under paragraph 7(2)(c)(iii) of Schedule 8
Constant attendance allowance at the rate specified in paragraph 2 of Part 5 of Schedule 4 Increase of benefit or disablement pension for a child dependant
Increase of benefit for a child dependant in accordance with paragraph 6(4)(c) or of disablement pension for a child dependant in accordance with paragraph 7(2)(ii) of Schedule 8
Child dependency increase at the rate specified in paragraph 7 of Part 5 of Schedule 4 Increase of benefit or disablement pension for an adult dependant
Increase of benefit for an adult dependant in accordance with paragraph 6(5) or of disablement pension for an adult dependant in accordance with paragraph 7(2)(ii) of Schedule 8
Adult dependency increase at the rate specified in paragraph 1(a) of Part 5 of Schedule 4 Payment of a capital sum
Payment of a capital sum or sums in accordance with paragraph 6(6) of Schedule 8
A sum or sums of an amount or aggregate amount not exceeding £300 |
The Merchant Shipping (Carriage of Passengers by Sea) Regulations 2012
Accordingly, the Secretary of State, in exercise of the powers conferred on him by that section, makes the following Regulations:
Citation and commencement
1
1
These Regulations may be cited as the Merchant Shipping (Carriage of Passengers by Sea) Regulations 2012.
2
Regulations 2 and 4 come into force on 31st December 2012 the remaining regulations come into force on 12th January 2013.
Interpretation
2
1
In these Regulations —
“the 2009 Regulation ” means Regulation (EC) No. 392/2009 of the European Parliament and of the Council of 23rd April 2009 on the liability of carriers of passengers by sea in the event of accidents ;
“ the Act ” means the Merchant Shipping Act 1995 ;
“ State Party ” means a country in respect of which the Athens Convention is in force;
“insurance” means insurance or other financial security satisfying the requirements of Article 4 bis of the Athens Convention;
“proper officer” has the meaning ascribed to it in section 313 of the Act;
“United Kingdom ship” means a ship registered in the United Kingdom under Part 2 of the Act.
2
For the purposes of these Regulations expressions used in the 2009 Regulation and in these Regulations have the same meaning as in the 2009 Regulation.
Application
3
1
Subject to regulation 4, these Regulations apply to ships and persons engaged in the carriage of passengers by sea to which the 2009 Regulation applies.
2
These Regulations do not apply to warships, auxiliary warships or other State owned or operated ships used for a non commercial public service.
Disapplication of the 2009 Regulation in respect of carriage by sea within the United Kingdom
4
The 2009 Regulation does not apply to any ship engaged in the carriage of passengers by sea solely within the United Kingdom unless —
a
the ship is a Class A ship and the carriage takes place after 30th December 2016; or
b
the ship is a Class B ship and the carriage takes place after 30th December 2018.
Requirement to have Insurance
5
1
A ship may not enter or leave a port in the United Kingdom, nor if the ship is a United Kingdom ship a port in any other country, unless there is insurance in force, in respect of that ship and a certificate complying with the provisions of regulation 6.
2
The requirement for the ship to have insurance does not apply to any ship —
a
which is not licensed to carry more that 12 passengers; or
b
to which the 2009 Regulation does not apply by virtue of regulation 4 or Article 2.2 of the Athens Convention.
Insurance certificates
6
1
The existence of the insurance required under regulation 5 is to be proved by a certificate in the form prescribed in —
a
the Annex to the Athens Convention; or
b
appendix B of Annex II to the 2009 Regulation,
showing that there is in force in respect of the ship insurance satisfying those requirements.
2
The certificate must be —
a
if the ship is a United Kingdom ship, a certificate issued by the Secretary of State;
b
if the ship is registered in a State Party (other than the United Kingdom), a certificate issued by or under the authority of the government of that State Party;
c
if the ship is registered in a country which is not a State Party, a certificate issued by the Secretary of State or under the authority of any State Party;
d
if the ship is registered in a country which is not a State Party but which is a Member State, a certificate issued by, or under the authority of, that Member State.
3
The certificate must —
a
be carried on onboard the ship; and
b
be produced on demand by the master to —
i
the Secretary of State or to any proper officer where the ship is a United Kingdom ship; or
ii
the Secretary of State in the case of any other ship.
Issue of certificates by the Secretary of State
7
1
Subject to paragraph (2), if the Secretary of State is satisfied on the application for such a certificate as is mentioned in regulation 6 in respect of —
a
a United Kingdom ship; or
b
a ship registered in any country that is not a State Party,
that there will be insurance in force throughout the period for which the certificate is to be issued the Secretary of State may issue such a certificate to the carrier or performing carrier.
2
If the Secretary of State is of the opinion that there is doubt whether —
a
the person providing the insurance will be able to meet their obligations thereunder; or
b
the insurance will not cover the carrier or performing carrier’s liability under the 2009 Regulation;
the Secretary of State may, after taking into account any other matters which appear to be relevant, refuse to issue the certificate.
3
Where, at any time while a certificate is in force, the person to whom the certificate has been issued ceases to be the performing carrier in relation to the ship to which the certificate relates the certificate shall be delivered up forthwith to the Secretary of State or to a proper officer and in such case shall be cancelled by the Secretary of State.
4
Where, at any time while a certificate is in force, it is established that the contract of insurance in respect of which the certificate is issued is or may be treated as invalid the certificate may be cancelled by the Secretary of State and, if so cancelled, shall on demand be delivered up to the Secretary of State by the person to whom it was issued.
5
Where, at any time while a certificate is in force, circumstances arise in relation to the insurer or guarantor named in the certificate (or where more than one is so named, any of them) such that if the certificate were applied for at that time, the Secretary of State would have been entitled to refuse the application under paragraph (2) the certificate may be cancelled by the Secretary of State and if so cancelled the certificate shall on demand be delivered up to the Secretary of State by the person to whom it was issued.
6
The Secretary of State shall send a copy of any certificate issued under this regulation in respect of a United Kingdom ship to the Registrar General of Shipping and Seamen and the Registrar shall make the copy available for public inspection.
Penalties
8
1
A carrier or performing carrier is guilty of an offence if —
a
a relevant ship enters or leaves a port in contravention of regulation 5; or
b
anyone attempts to navigate that ship into or out of a port in contravention of that regulation.
2
The person guilty of an offence under paragraph (1) is liable —
a
on summary conviction, to a fine not exceeding the statutory maximum,
b
on conviction on indictment to a fine.
3
A master who fails to comply with regulation 6(3) is guilty of an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
4
A person required by paragraphs (3) to (5) of regulation 7 to deliver up a certificate who fails to do so shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
5
Any document required or authorised by virtue of any statutory provision to be served on a foreign company for the purposes of or the institution of (or otherwise in connection with the institution of) proceedings for an offence under regulation 5 against the company as owner of the ship is to be treated as served on the company if the document is served on the master of the ship.
6
In this regulation foreign company means a company or body which is not one to which section 1139 of the Companies Act 2006 applies so as to authorise the service of the document in question.
Power to detain
9
1
A ship may be detained if anyone attempts to navigate it out of port in contravention of regulation 5.
2
Section 284 of the Act (which relates to the detention of a ship) is to have effect in relation to the ship, subject to the modification that for —
a
“this Act” there were substituted “the Merchant Shipping (Carriage of Passengers by Sea) Regulations 2012”; and
b
“owner” there were substituted “carrier or performing carrier”.
3
An officer detaining the ship must serve on the master of the ship a detention notice which —
a
states the reason for the detention; and
b
requires the ship to comply with the terms of the detention notice until it is released by a competent authority.
4
Where a ship is detained which is not a United Kingdom ship the Secretary of State must immediately inform, in writing —
a
the ship’s flag state administration; or, if this is not possible,
b
the Consul of the State of the flag administration; or, in the Consul’s absence,
c
the nearest diplomatic representative of the State of the flag administration.
5
The written information referred to in paragraph (4) must set out all the circumstances of the decision to detain the ship.
6
Where paragraph (4) applies the Secretary of State must notify all relevant —
a
nominated surveyors; or
b
recognised organisations;
responsible for the issue of classification certificates.
7
In this regulation “competent authority” means any officer mentioned in section 284(1) of the Act.
Arbitration
10
1
Any question as to whether the matters specified in relation to a ship in a detention notice constituted a valid basis for the officer’s opinion must, if the master of the ship or the carrier or performing carrier so requires by notice given to the officer within 21 days from the service of the detention notice, be referred to a single arbitrator appointed by agreement between the parties for that question to be decided by the arbitrator.
2
Where notice is given by the master of the ship or the carrier or performing carrier in accordance with paragraph (1), the giving of a notice does not suspend operation of the detention notice.
3
The arbitrator may have regard to any matter not specified in the detention notice which appears to the arbitrator to be relevant as to whether or not the ship was or was not liable to be detained.
4
Where the arbitrator decides, as respects a matter to which the reference relates, that in all the circumstances the matter did not constitute a valid basis for the officers opinion, the arbitrator must —
a
cancel the detention notice; or
b
affirm it with such modifications as the arbitrator may in the circumstances think fit.
5
In any case other than one described in paragraph (4) the arbitrator must affirm the detention notice in its original form.
6
The decision of the arbitrator must include a finding whether there was or was not a valid basis for the detention of the ship.
7
To be qualified for appointment as an arbitrator under this regulation a person must be —
a
a person holding a certificate of competency as a master mariner or as a marine engineer officer class 1, or a person holding a certificate equivalent to any such certificate;
b
a naval architect;
c
a person falling within paragraph (8); or
d
a person with special experience of shipping matters, or of activities carried on within ports.
8
For the purposes of a paragraph 7(c) a person falls within this sub-paragraph if that person —
a
satisfies the judicial appointment eligibility condition on a 7 year basis within the meaning of section 50 of the Tribunals, Courts and Enforcement Act 2007 ;
b
is an advocate or solicitor in Scotland of at least 7 years’ standing;
c
is a member of the bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland of at least 7 years’ standing.
9
In the application of this regulation to Scotland any reference to an arbitrator is to be construed as a reference to an arbiter, and the reference in paragraph (1) to a single arbitrator appointed by agreement between the parties is to be construed as a reference to a single arbiter so appointed, or, in default of agreement, appointed by the sheriff.
Compensation for unjustified detention
11
1
If, on a reference under regulation 10 relating to a detention notice, the arbitrator decides that the person making the reference has proved —
a
that the matter complained of did not constitute a valid basis for the officer’s opinion; and
b
that there were no reasonable grounds for the issue of the detention notice;
the arbitrator must award the owner of the ship such compensation in respect of any loss suffered in consequence of the detention of the ship as the arbitrator thinks fit.
2
Any compensation awarded under this regulation is payable by the Secretary of State.
3
In the application of this regulation to Scotland any reference to an arbitrator is to be construed as a reference to an arbiter.
Provision of information to passengers
12
A carrier or performing carrier which fails to supply a passenger with the information specified in article 7 of the 2009 Regulation is guilty of an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Fees
13
The Secretary of State may charge a fee of £31.00 for the issue of a certificate mentioned in regulation 6(1).
Disapplication of section 183 of the Merchant Shipping Act 1995
14
1
Section 183 of the Act (scheduled convention to have force of law) is amended as follows.
2
After subsection (2) insert —
2A
But —
a
subsection (1) does not give the force of law in the United Kingdom to provisions to the extent that they apply to cases in which EC Regulation No. 392/2009 applies; and
b
the provisions of Part 2 of that Schedule do not have effect in such cases.
.
3
In subsection (5) —
a
for the first “or (2)” substitute “, (2) or (2A)”, and
b
for “the said subsection (1) or (2) above” substitute “the subsection”.
4
After subsection (7) insert —
8
In this section “EC Regulation No. 392/2009” means Regulation (EC) No. 329/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents.
.
Review
15
1
The Secretary of State must from time to time —
a
carry out a review of regulations 2 to 13,
b
set out the conclusions of the review in the a report; and
c
publish the report.
2
In carrying out the review the Secretary of State must so far as is reasonable have regard to how the 2009 Regulation is applied in other Member States.
3
The report must in particular —
a
set out the objectives intended to be achieved by the regulatory system established by those regulations,
b
assess the extent to which those objectives are achieved; and
c
assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
4
The first report under this regulation must be published before 12th January 2018.
5
Reports under this regulation are afterwards to be published at intervals not exceeding five years.
Signed by authority of the Secretary of State for Transport
Simon Burns
Minister of State
Department for Transport
19th December 2012 |
The Pensions Act 2008 (Commencement No. 13) Order 2012
The Secretary of State for Work and Pensions makes the following Order in exercise of the powers conferred by sections 144(4) and 149(1) of the Pensions Act 2008 .
Citation
1
1
This Order may be cited as the Pensions Act 2008 (Commencement No. 13) Order 2012.
2
In this Order, “ the Act ” means the Pensions Act 2008.
Commencement of provisions
2
1
The provisions of the Act specified in paragraph (2) come into force on 30th June 2012.
2
The provisions are —
a
those listed in Schedule 1 to this Order, in so far as they are not already in force, and
b
those listed in Schedule 2 to this Order.
Signed by authority of the Secretary of State for Work and Pensions.
Steve Webb
Minister of State
Department for Work and Pensions
28th June 2012
SCHEDULE 1
Provisions of the Act (in so far as they are not already in force) coming into force on 30th June 2012
Article 2(2)(a)
Provisions of the Act Subject matter
Section 2 Continuity of scheme membership Section 3 Automatic enrolment Section 5 Automatic re-enrolment Section 6 Timing of automatic re-enrolment Section 7 Jobholder’s right to opt in Section 8 Jobholder’s right to opt out Section 9 Workers without qualifying earnings Section 10 Information to be given to workers Section 13 Qualifying earnings Section 15 Pay reference period Section 16 Qualifying schemes Section 17 Automatic enrolment schemes Section 18 Occupational pension schemes Section 20 Quality requirement: UK money purchase schemes Section 21
Quality requirement: UK defined benefits schemes Section 22 Test scheme standard Section 24 Quality requirement: UK hybrid schemes Section 26 Quality requirement: UK personal pension schemes Section 29 Transitional periods for money purchase and personal pension schemes Section 30 Transitional period for defined benefits and hybrid schemes Section 32 Power of trustees or managers to modify by resolution Section 33 Deduction of contributions Section 37 Unpaid contributions notices Section 38 Calculation and payment of contributions Section 40 (except paragraph (d) of subsection (1) which is commenced only for the purposes of the exercise of the Regulator’s functions under or by virtue of Part 1 of the Act) Fixed penalty notices Section 41 (except paragraph (d) of subsection (1) which is commenced only for the purposes of the exercise of the Regulator’s functions under or by virtue of Part 1 of the Act) Escalating penalty notices Section 43 Review of notices Section 49 Monitoring of employers’ payments to personal pension schemes Section 52 Penalty notices Section 54 Inducements Section 58 Restrictions on agreements to limit operation of this Part Section 96 Persons working on vessels Section 97 Persons in offshore employment
SCHEDULE 2
Provisions of the Act coming into force on 30th June 2012
Article 2(2)(b)
Provisions of the Act Subject matter
Section 1 Jobholders Section 19 Personal pension schemes Section 31 Effect of freezing order or assessment period Section 34 Effect of failure to comply Section 35 Compliance notices Section 36 Third party compliance notices Section 39 Meaning of “relevant contributions” Section 42 Penalty notices: recovery Section 44 References to First-tier Tribunal or Upper Tier Tribunal Section 45 Offences of failing to comply Section 46 Offences by bodies corporate Section 47 Offences by partnerships and unincorporated associations Section 48 Offences of providing false or misleading information Section 50 Prohibited recruitment conduct Section 51 Compliance notices Section 53 Review of notices and references to First-tier Tribunal or Upper Tribunal Section 55 The right not to suffer detriment Section 56 Enforcement of the right Section 57 (except subsection (3)) Right of employee not to be unfairly dismissed Section 59 Employment Appeal Tribunal Section 61 Powers to require information and to enter premises Section 66 Functions of the Pensions Ombudsman Section 88 “Employer”, “worker” and related expressions Section 89 Agency workers Section 90 Directors Section 91 Crown employment Section 92 Armed forces Section 93 House of Lords staff Section 94 House of Commons staff Section 95 Police Section 127 Review of the initial operation of sections 38A and 38B of the Pensions Act 2004 |
The Financial Services and Markets Act 2000 (Short Selling) Regulations 2012
The Treasury in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 make the following Regulations:
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Financial Services and Markets Act 2000 (Short Selling) Regulations 2012 and come into force on 1st November 2012.
2
In these Regulations —
“ the Act ” means the Financial Services and Markets Act 2000 ;
“ the Authority ” means the Financial Services Authority;
“the short selling regulation ” means Regulation ( EU ) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps .
Amendment of the Act
2
1
The Act is amended as follows.
2
Sections 131B to 131D (short selling rules) (including the italic heading before section 131B) are repealed.
3
In section 131E (power to require information) —
a
in subsection (1) omit “(“P”)”;
b
in subsection (2) for the words from “determining whether P” to the end substitute “the exercise by it of functions under the short selling regulation”;
c
after subsection (5) insert —
5A
The Authority’s powers under this section may be exercised on a request made in the exercise of functions under the short selling regulation by —
a
the competent authority for the purposes of that regulation of an EEA State other than the United Kingdom, or
b
ESMA .
5B
If a request of the kind mentioned in subsection (5A) has been made to the Authority, the Authority must, in deciding whether or not to exercise its powers under this section in response to the request, consider whether it is necessary to do so to comply with the short selling regulation.
;
d
omit subsection (7).
4
In section 131F (power to require information: supplementary) —
a
omit subsection (1);
b
in subsection (6) for paragraphs (a) and (b) substitute —
a
the Authority suspects that P or a member of P’s group has contravened any provision of the short selling regulation;
b
the Authority suspects that the person to whom the obligation of confidence is owed or a member of that person’s group has contravened any provision of the short selling regulation; or
.
5
After section 131F insert —
Investigations in support of EEA regulator”
131FA
1
If so requested by the competent authority of an EEA State other than the United Kingdom (“the EEA regulator”) acting in the exercise of its functions under the short selling regulation, the Authority may appoint one or more competent persons to investigate any matter.
2
In deciding whether to comply with a request falling within subsection (1), the Authority must consider whether it is necessary to do so in order to comply with the short selling regulation.
3
Sections 170 to 177 (which relate to investigations) apply in relation to an investigator appointed under subsection (1) as they apply in relation to an investigator appointed under section 168(5).
4
The Authority may direct an investigator appointed under subsection (1) to permit a representative of the EEA regulator” to attend, and take part in, any interview conducted for the purposes of the investigation.
5
The Authority is not to give a direction under subsection (4) unless it is satisfied that any information obtained by the EEA regulator” as a result of the interview will be subject to safeguards equivalent to those contained in Part 23.
6
The Authority must prepare a statement of its policy with respect to the conduct of interviews in relation to which a direction under subsection (4) has been given.
7
The statement requires the approval of the Treasury.
8
If the Treasury approve the statement, the Authority must publish it.
9
No direction may be given under subsection (4) before the statement has been published.
10
The Authority may at any time alter or replace a statement issued under subsection (6), and subsections (7) and (8) apply to an altered statement or to a replacement statement.
Entry of premises under warrant
131FB
1
A justice of the peace may issue a warrant under this section if satisfied on information on oath given by or on behalf of the Authority that there are reasonable grounds for believing that the conditions in subsection (2) are satisfied.
2
The conditions are —
a
that a relevant person on whom a requirement has been imposed under section 131E or 131F has failed (wholly or in part) to comply with it; and
b
that on the premises specified in the warrant —
i
there are documents which have been required; or
ii
there is information which has been required.
3
A warrant under this section shall authorise a constable —
a
to enter the premises specified in the warrant;
b
to search the premises and take possession of any documents or information appearing to be documents or information of a kind in respect of which a warrant under this section was issued (“the relevant kind”) or to take, in relation to any such documents or information, any other steps which may appear to be necessary for preserving them or preventing interference with them;
c
to take copies of, or extracts from, any documents or information appearing to be of the relevant kind;
d
to require any person on the premises to provide an explanation of any document or information appearing to be of the relevant kind or to state where it may be found; and
e
to use such force as may be reasonably necessary.
4
A warrant under this section may be executed by any constable.
5
The warrant may authorise persons to accompany any constable who is executing it.
6
The powers in subsection (3) may be exercised by a person authorised by the warrant to accompany a constable; but that person may exercise those powers only in the company of, and under the supervision of, a constable.
7
In England and Wales, sections 15(5) to (8) and 16(3) to (12) of the Police and Criminal Evidence Act 1984 (execution of search warrants and safeguards) apply to warrants issued under this section.
8
In Northern Ireland, Articles 17(5) to (8) and 18(3) to (12) of the Police and Criminal Evidence (Northern Ireland) Order 1989 apply to warrants issued under this section.
9
In the application of this section to Scotland —
a
for the reference to a justice of the peace substitute a reference to a justice of the peace or a sheriff; and
b
for the references to information on oath substitute references to evidence on oath.
10
The Authority may give information under subsection (1) or under section 176(1) at the request of an EEA regulator” where the regulator makes the request in the exercise of its functions under the short selling regulation.
11
The Authority must, in deciding whether or not to exercise a power referred to in subsection (10), consider whether the exercise of that power is necessary to comply with an obligation under the short selling regulation.
12
In this section —
“EEA regulator”” means the competent authority of an EEA State other than the United Kingdom for the purposes of the short selling regulation;
“relevant person” means —
an authorised person,
a person who has been an authorised person,
a person who is for the purposes of section 165 connected with an authorised person or with a person within paragraph (b).
Retention of documents taken under section 131FB
131FC
1
Any document of which possession is taken under section 131FB (“a seized document”) may be retained so long as it is necessary to retain it (rather than copies of it) in the circumstances.
2
A person claiming to be the owner of a seized document may apply to a magistrates’ court or (in Scotland) the sheriff for an order for the delivery of the document to the person appearing to the court or sheriff to be the owner.
3
If on an application under subsection (2) the court or (in Scotland) the sheriff cannot ascertain who is the owner of the seized document the court or sheriff (as the case may be) may make such order as the court or sheriff thinks fit.
4
An order under subsection (2) or (3) does not affect the right of any person to take legal proceedings against any person in possession of a seized document for the recovery of the document.
5
Any right to bring proceedings (as described in subsection (4)) may only be exercised within 6 months of the date of the order made under subsection (2) or (3).
.
6
In the italic heading before section 131G, for “rules” substitute “regulation”.
7
In section 131G (power to impose penalty or issue censure), in subsection (1)(a), for “short selling rules” substitute “the short selling regulation”.
8
After section 131K (statement of policy: procedure) insert —
Offences
131L
1
If a relevant person (“A”) fails to comply with a requirement imposed on A under section 131E or 131F the Authority may certify that fact in writing to the court.
2
If the court is satisfied that A failed without reasonable excuse to comply with the requirement, it may deal with A (and where A is a body corporate, any director or officer) as if A (or as the case may be the director or officer) were in contempt; and “officer”, in relation to a limited liability partnership, means a member of the limited liability partnership.
3
A relevant person (“B”) who, in purported compliance with a requirement imposed on B under section 131E or 131F —
a
provides information which B knows to be false or misleading in a material particular, or
b
recklessly provides information which is false or misleading in a material particular,
is guilty of an offence.
4
A person guilty of an offence under subsection (3) is liable —
a
on summary conviction, to imprisonment for a term not exceeding three months or a fine not exceeding the statutory maximum, or both;
b
on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.
5
Any person who intentionally obstructs the exercise of any rights conferred by a warrant under section 131FB is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 5 on the standard scale, or both.
6
In relation to any contravention by a person, the Authority may not exercise both —
a
its powers under section 131G(2), and
b
its powers under subsection (1).
7
In this section —
“court” means —
the High Court;
in Scotland, the Court of Session;
“relevant person” means —
an authorised person,
a person who has been an authorised person,
a person who is for the purposes of section 165 connected with an authorised person or with a person within paragraph (b).
.
9
In section 150 (actions for damages for contravention of rules), in subsection (4), omit paragraph (aa) but not “or” at the end of that paragraph.
10
In section 157 (guidance), in subsection (3A), for “rules under section 131B (short selling rules) to which those persons are subject” substitute “its functions under the short selling regulation”.
11
In section 168 (appointment of persons to carry out investigations in particular cases), in subsection (4) —
a
omit “or” at the end of paragraph (i);
b
at the end of paragraph (j) insert —
; or
k
a person may have contravened any provision of the short selling regulation.
.
12
In section 380 (injunctions), in subsection (6)(a)(i), after “auctioning regulation” insert “or the short selling regulation”.
13
In section 382 (restitution orders), in subsection (9)(a)(i), after “auctioning regulation” insert “or the short selling regulation”.
14
In section 398 (misleading the Authority: residual cases), in subsection (1), after “Act,” insert “or by the short selling regulation,”.
15
In section 417 (definitions), in subsection (1), in the appropriate place insert —
“short selling regulation” means Regulation (EU) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps;
.
16
In Schedule 1, in paragraph 6 (monitoring and enforcement) —
a
in sub-paragraph (1), after “auctioning regulation” insert “or the short selling regulation”;
b
in sub-paragraph (3), after “auctioning regulation,” insert “the short selling regulation,”.
Amendment of the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001
3
1
The Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001 are amended as follows.
2
In regulation 2 in the appropriate place insert —
“short selling regulation information” means confidential information received by the Authority in the course of discharging its functions as a competent authority under the short selling regulation;
.
3
In regulation 12 after paragraph (3) insert —
4
This regulation does not permit disclosure of short selling regulation information to a person specified in the first column in Part 3 of Schedule 1 unless the disclosure is in accordance with article 40 of the short selling regulation or a cooperation arrangement of the kind referred to in article 38 of the short selling regulation.
.
Designation of competent authority
4
The Authority is the competent authority for the purposes of the short selling regulation.
Applications under the short selling regulation
5
1
Any application to the Authority under the short selling regulation must —
a
be made in such manner as the Authority may direct; and
b
contain, or be accompanied by, such other information as the Authority may reasonably require.
2
At any time after receiving an application and before determining it, the Authority may require the applicant to provide it with such further information as it reasonably considers necessary to enable it to determine the application.
3
Different directions may be given, and different requirements imposed, in relation to different applications or categories of application.
4
The Authority may require an applicant to provide information under this regulation in such form, or to verify it in such a way, as the Authority may direct.
5
Section 398 of the Act (misleading the authority: residual cases) applies to a requirement imposed under this regulation as it applies to a requirement imposed by or under the Act.
Notifications under the short selling regulation
6
Any notification to the Authority under Article 17.5, 17.6, 17.9, 17.10, 18.1 or 19.2 of the short selling regulation must be made in such manner as the Authority may direct.
Saving provision
7
1
The repeal of sections 131B to 131D of the Act does not affect the liability of any person to provide disclosure of a disclosable short position for the purposes of the Financial Stability and Market Confidence Sourcebook Instrument 2010 where —
a
that person held the disclosable short position before 1st November 2012, and
b
disclosure is due to be provided on 1st November 2012.
2
In this regulation, “disclosure” has the meaning given by Financial Stability and Market Confidence Sourcebook Instrument 2010 and “disclosable short position” has the meaning given by the Short Selling Instrument 2008 .
Review
8
1
The Treasury must from time to time —
a
carry out a review of regulations 2 to 6,
b
set out the conclusions of the review in a report, and
c
publish the report.
2
In carrying out the review the Treasury must, so far as is reasonable, have regard to how the short selling regulation (which is implemented in part by means of regulations 2 to 6) is implemented in other member States.
3
The report must in particular —
a
set out the objectives intended to be achieved by the regulatory system established by regulations 2 to 6,
b
assess the extent to which those objectives are achieved, and
c
assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
4
The first report under this regulation must be published before the end of the period of five years beginning with the day on which these Regulations come into force.
5
Reports under this regulation are afterwards to be published at intervals not exceeding five years.
David Evennett
Robert Goodwill
Two of the Lords Commissioners of Her Majesty’s Treasury
4th October 2012 |
The Occupational and Personal Pension Schemes (Prescribed Bodies) Regulations 2012
The Secretary of State has consulted such persons as the Secretary of State considers appropriate in accordance with section 185(1) of the Pension Schemes Act 1993, section 120(1) of the Pensions Act 1995 and section, 317(1) of the Pensions Act 2004.
Citation and commencement
1
These Regulations may be cited as the Occupational and Personal Pension Schemes (Prescribed Bodies) Regulations 2012 and shall come into force on 9th August 2012.
Amendment of regulations
2
The Schedule has effect.
Signed by authority of the Secretary of State for Work and Pensions.
Steve Webb
Minister of State,
Department for Work and Pensions
11th July 2012
SCHEDULE
Amendment of Regulations
Regulation 2
1
In regulation 1(2) of the Personal Pension Schemes (Disclosure of Information) Regulations 1987 (interpretation) —
a
omit the definition of “the Board for Actuarial Standards”; and
b
in the definition of “the relevant guidance”, for “the Board for Actuarial Standards” substitute “the Financial Reporting Council Limited ”.
2
In the Occupational Pension Schemes (Contracting-out) Regulations 1996 —
a
in regulation 1(2) (interpretation), omit the definition of “the Board for Actuarial Standards”; and
b
in regulation 23(a) (requirements for meeting the statutory standard), for “the Board for Actuarial Standards” substitute “the Financial Reporting Council Limited”.
3
In the Occupational Pension Schemes (Winding Up) Regulations 1996 —
a
in regulation 1 (interpretation) —
i
in paragraph (4) , omit the definition of “the Board for Actuarial Standards”; and
ii
for paragraph (5) substitute —
5
References in these Regulations to FRC standards are to actuarial standards adopted or prepared, and from time to time revised, by the Financial Reporting Council Limited, which are relevant to the determination, calculation and verification of the amount or value of the liabilities of the scheme to which section 73 applies.
; and
b
in regulation 4(1)(d) (calculation of the value or amount of scheme assets and liabilities), for “BAS standards” substitute “FRC standards”.
4
In the Occupational Pension Schemes (Deficiency on Winding Up etc. ) Regulations 1996 —
a
in regulation 2 (interpretation) —
i
in paragraph (2) , omit the definition of “the Board for Actuarial Standards”; and
ii
in paragraph (5) , for “the Board for Actuarial Standards” substitute “the Financial Reporting Council Limited”; and
b
in Schedule 1 (form of actuary’s certificate), for “the Board for Actuarial Standards” substitute “the Financial Reporting Council Limited”.
5
In regulation 1(2) of the Occupational Pension Schemes (Disclosure of Information) Regulations 1996 (interpretation) —
a
omit the definition of “the Board for Actuarial Standards”; and
b
in the definition of “the relevant guidance”, for “the Board for Actuarial Standards” substitute “the Financial Reporting Council Limited”.
6
In regulation 1(3) of the Stakeholder Pension Schemes Regulations 2000 (interpretation) —
a
omit the definition of “the Board for Actuarial Standards”; and
b
in the definition of “the relevant guidance”, for “the Board for Actuarial Standards” substitute “the Financial Reporting Council Limited”.
7
In the Occupational Pension Schemes (Employer Debt) Regulations 2005 —
a
in regulation 2 (interpretation) —
i
in paragraph (1), omit the definition of “the Board for Actuarial Standards”; and
ii
for paragraph (3) substitute —
3
References in these Regulations to FRC standards are to actuarial standards on winding up and scheme asset deficiency adopted or prepared, and from time to time revised, by the Financial Reporting Council Limited.
;
b
in regulation 5(17) (calculation of the amount of scheme liabilities and value of scheme assets), for “BAS standards” substitute “FRC standards”;
c
in regulation 6(8) (multi-employer schemes: general), for “BAS standards” substitute “FRC standards”; and
d
in Schedules 1 (actuary’s certificate of total difference between scheme assets and liabilities and liability share debt of employer in a multi-employer scheme) and 1D (actuary’s certificate for amount B under a withdrawal arrangement or an approved withdrawal arrangement in a multi-employer scheme), for “BAS standards” substitute “FRC standards”.
8
In the Occupational Pension Schemes (Scheme Funding) Regulations 2005 —
a
in regulation 2(1) (interpretation), omit the definition of “the Board for Actuarial Standards”; and
b
in regulation 15 (guidance relating to actuarial advice), for “the Board for Actuarial Standards” substitute “the Financial Reporting Council Limited”.
9
In the Occupational Pension Schemes (Modification of Schemes) Regulations 2006 —
a
in regulation 1(3) (interpretation), omit the definition of “the Board for Actuarial Standards”; and
b
in regulation 5(2)(b) (calculation of the actuarial value of affected member’s subsisting rights), for “guidance that is” substitute “actuarial standards that are” and for “the Board for Actuarial Standards” substitute “the Financial Reporting Council Limited”. |
The Individual Savings Account (Amendment) Regulations 2012
Citation and commencement
1
These Regulations may be cited as the Individual Savings Account (Amendment) Regulations 2012 and shall come into force on 6th April 2012.
Amendments to the Individual Savings Account Regulations 1998
2
Regulation 4ZA of the Individual Savings Account Regulations 1998 (subscriptions to an account other than a junior ISA account) is amended as follows —
a
in paragraph (1)(a), for “£5,340” substitute “£5,640”; and
b
in paragraph (1)(b), for “£10,680” substitute “£11,280”.
James Duddridge
Jeremy Wright
Two of the Lords Treasury Commissioners of Her Majesty’s Treasury
6th March 2012 |
The Port of Ipswich Harbour Revision Order 2012
The Marine Management Organisation, being satisfied as mentioned in section 14(2)(b) and in exercise of the powers conferred by section 14(1), makes the following Order.
Citation, commencement and duration
1
1
This Order may be cited as the Port of Ipswich Harbour Revision Order 2012 and shall come into force on 15th January 2013.
2
The Ipswich Dock Acts and Orders 1852 to 2006 and this Order may be cited together as the Ipswich Dock Acts and Orders 1852 to 2012.
3
This Order shall cease to have effect if Gasworks Quay and Eagle Wharf cease to be occupied by Anglo-Norden for the discharging of ships.
Interpretation
2
In this Order —
“the advance advisory notice” means a clearly legible and prominently displayed notice placed at the junction of Ship Launch Road and Cliff Road and at the junction of Patteson Road and Cliff Road notifying members of the public that a part of RB 36 will be closed under article 3 and giving details of the closure;
“the advisory notice” means a clearly legible and prominently displayed notice placed at the junction of Ship Launch Road and Cliff Road and at the junction of Patteson Road and Cliff Road notifying members of the public that a part of RB 36 is closed under article 3 and giving details of the closure;
“the alternative route” means a route over land within the confines of RB 36 being 3.5 metres wide from the imaginary line between points C and D specified in the definition of “the Eagle Wharf part” to a point 48 metres northward and from there 1.5 metres wide to the imaginary line between points E and F specified in the definition of “the Gasworks Quay part”;
“Anglo-Norden” means Anglo-Norden Forest Products Limited or its successors in title as owners of Gasworks Quay and Eagle Wharf or either of them;
“calendar quarter” means three months starting on 1st January, 1st April, 1st July or 1st October;
“calendar year” means a year starting on 1st January;
“Eagle Wharf” means the quay in the Ipswich Wet Dock known as Eagle Wharf and shown on the plan in the Schedule;
“the Eagle Wharf part” means that part of RB 36 from an imaginary line drawn between point A (52° 2.8217 N, 1° 9.7973 E) and point B (52° 2.8212 N, 1° 9.8119 E) to an imaginary line drawn between point C (52° 2.8841 N, 1° 9.8010 E) and point D (52° 2.8776 N, 1° 9.8114 E) (based on the WGS 84 datum), shown for identification on the plan in the Schedule;
“Gasworks Quay” means the quay in the Ipswich Wet Dock known as Gasworks Quay and shown on the plan in the Schedule;
“the Gasworks Quay part” means that part of RB 36 from an imaginary line drawn between point A (52° 2.8217 N, 1° 9.7973 E), and point B (52° 2.8212 N, 1° 9.8119 E) to an imaginary line drawn between point E (52° 2.9616 N, 1° 9.7997 E) and point F (52° 2.9617 N, 1° 9.8078 E) (based on the WGS 84 datum), shown for identification on the plan in the Schedule;
“land within the confines of RB 36” means land over which the restricted byway rights of RB 36 would be exercisable when not suspended;
“public holiday” means Christmas Day, Good Friday or a day specified as a bank holiday in England and Wales in Schedule 1 to the Banking and Financial Dealings Act 1971 or a day having effect as a bank holiday in England under section 1(3) of that Act;
“RB 36” means the restricted byway in Helena Road recorded by the Suffolk County Council (County Borough of Ipswich Definitive Map and Statement) (Restricted Byway 36) Modification Order 2009 made under section 53(2)(b) of the Wildlife and Countryside Act 1981 , as confirmed with modification by decision of the Inspector on 4 March 2011 in accordance with paragraphs 7 and 10 of Schedule 15 to that Act;
“restricted byway” and “restricted byway rights” have the meanings given in section 48(4) of the Countryside and Rights of Way Act 2000 ; and
“the WGS 84” means the World Geodetic System, revised in 1984 and further revised in 2004.
Suspension of restricted byway rights over RB 36 by temporary closure
3
Subject to article 4 —
a
Anglo-Norden may close RB 36 along the Gasworks Quay part while discharging a ship on Gasworks Quay; and
b
Anglo-Norden may close RB 36 along the Eagle Wharf part while discharging a ship on Eagle Wharf; and
c
when a part of RB 36 is closed under paragraph (a) or (b) all restricted byway rights over that part of RB 36 are suspended save over the alternative route required by article 4(4) where only the right of way for horse-drawn vehicles is suspended.
Conditions relating to closure of parts of RB 36
4
1
No part of RB 36 may be closed on a Saturday, Sunday or public holiday and the total number of days of closures under article 3 must not exceed 70 days in any calendar year and 25 days in any calendar quarter.
2
When any part of RB 36 is closed under article 3 it must not be closed —
a
on more than two consecutive days; and
b
before 7am or after 6pm.
3
Anglo-Norden must display the advance advisory notice for 24 hours prior to a closure of a part of RB 36 under article 3 and must also display the advisory notice at all times during such a closure.
4
At all times during a closure of the Gasworks Quay part under article 3(a) —
a
Anglo Norden must provide and maintain the alternative route; and
b
the exercise of the power conferred by article 3(a) shall not prevent a person from proceeding along the Gasworks Quay part at any time in order to gain access to or egress from land or premises adjacent to or accessible only from the Gasworks Quay part.
5
At all times during a closure of the Eagle Wharf part under article 3(b) Anglo Norden must do nothing to prevent the use of the full width of Patteson Road at its junction with RB 36.
6
The exercise of the power conferred by article 3(a) or (b) shall not prevent traffic authorised to do so by Associated British Ports as harbour authority for the Port of Ipswich from having access to, or using, RB 36 at any time in connection with the carrying out of its harbour undertaking.
7
The exercise of the power conferred by article 3(a) or (b) shall not prevent access to, or the use of, RB 36 by fire engines, police vehicles or ambulances at any time.
8
Anglo-Norden must ensure that when any part of RB 36 is opened following a closure it is in a condition fit for public use, in particular, but without prejudice to the generality of the foregoing, by the removal of any debris or obstruction or the repair of any damage or deterioration occasioned by operations related to the discharging of ships during the closure.
Signed by authority of the Marine Management Organisation
J. Cross
Chief Executive Officer
An authorised employee of the Marine Management Organisation
18th December 2012
SCHEDULE
PLAN SHOWING PARTS OF RB 36
Article 2 |
The Pension Protection Fund (Miscellaneous Amendments) (No. 2) Regulations 2012
By virtue of section 317(2)(b) of that Act these Regulations were not subject to consultation because in this case it appeared to the Secretary of State that by reason of urgency consultation was inexpedient.
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Pension Protection Fund (Miscellaneous Amendments) (No. 2) Regulations 2012.
2
These regulations come into force as follows —
a
regulations 1(1) and (2) and 9 come into force on 24th January 2013, and
b
all other regulations come into force immediately after regulations 1(1) and (2) and 9.
3
In these Regulations, “ the Act ” means the Pensions Act 2004.
Amendment of the Pension Protection Fund (Multi-employer Schemes) (Modification) Regulations 2005
2
1
The Pension Protection Fund (Multi-employer Schemes) (Modification) Regulations 2005 are amended as follows.
2
In regulation 6(1) (protected liabilities and assessment periods), in paragraph (b) of the substituted section 131(1) of the Act (protected liabilities), for the words “as calculated in the Board ’s valuation of the relevant section of the scheme under section 143” substitute “as determined by the Board or as calculated in the Board’s valuation of the relevant section of the scheme under section 143”.
3
In regulation 8 (valuation of assets) —
a
for paragraph (1), substitute–
1
Section 143 of the Act (Board’s obligation to obtain valuation of assets and protected liabilities) shall be modified in its application to a section of a segregated scheme to which regulation 2 applies so that it shall be read as if–
a
for the words “the scheme” in subsection (2)(b), there were substituted the words “the relevant section of the scheme”; and
b
after subsection (2A), there were inserted the following subsection–
2B
Where the trustees or managers of a segregated scheme receive a copy of a notice under subsection (2A), they must send a copy of that notice as soon as practicable to the trustees or managers of each section of the scheme (if different) and to all the employers in relation to the scheme.
.
; and
b
after paragraph (1), insert–
1A
Section 143A of the Act (determinations under section 143) shall be modified in its application to a section of a segregated scheme to which regulation 2 applies so that it shall be read as if–
a
after subsection (1), there were inserted the following subsection–
1A
Where the trustees or managers of a segregated scheme receive a copy of a determination under subsection (1), they must send a copy of that determination as soon as practicable to the trustees or managers of each section of the scheme (if different) and to all the employers in relation to the scheme.
; and
b
for the words “a scheme” in subsection (3), there were substituted the words “the relevant section of a scheme”.
.
4
In regulation 10(2)(a) ( reconsideration and duty to assume responsibility for a scheme following reconsideration), in paragraph (b) of the substituted section 152(2) of the Act (duty to assume responsibility following reconsideration), for the words “as calculated in the valuation of the relevant section of the scheme” substitute “as determined by the Board or calculated in the valuation of the relevant section of the scheme”.
5
In regulation 11 (closed schemes and requirement to wind up schemes with sufficient assets to meet protected liabilities) after paragraph (4), insert–
5
Section 158 of the Act (duty to assume responsibility for closed schemes) shall be modified in its application to a section of a segregated scheme to which regulation 2 applies so that it shall be read as if, after subsection (3A), there were inserted the following subsection–
3B
Where the trustees or managers of a section of a segregated scheme receive a notice from the Board under subsection (3A), they must send a copy of that notice as soon as practicable to the trustees or managers of each section of the scheme (if different) and to all the employers in relation to the scheme.
.
.
6
In regulation 23 (valuation of assets) —
a
for paragraph (1), substitute–
1
Section 143 of the Act (Board’s obligation to obtain valuation of assets and protected liabilities) shall be modified in its application to a section of a scheme to which regulation 14 applies so that it shall be read as if–
a
for the words “the scheme” in subsection (2)(b), there were substituted the words “the relevant section of the scheme”; and
b
after subsection (2A), there were inserted the following subsection–
2B
Where the trustees or managers of a multi-employer section of a segregated scheme receive a copy of a notice under subsection (2A), they must send a copy of that notice as soon as practicable to all the employers in relation to that section of the scheme and to the trustees or managers of each section of the scheme (if different).
.
; and
b
after paragraph (1), insert–
1A
Section 143A of the Act (determinations under section 143) shall be modified in its application to a section of a scheme to which regulation 14 applies so that it shall be read as if–
a
after subsection (1), there were inserted the following subsection–
1A
Where the trustees or managers of a multi-employer section of a segregated scheme receive a copy of a determination under subsection (1), they must send a copy of that determination as soon as practicable to all the employers in relation to that section of the scheme and to the trustees or managers of each section of the scheme (if different).
; and
b
for the words “a scheme” in subsection (3), there were substituted the words “the relevant section of a scheme”.
.
7
In regulation 25 (reconsideration, closed schemes and requirement to wind up schemes with sufficient assets to meet protected liabilities), after paragraph (6), insert —
7
Section 158 of the Act (duty to assume responsibility for closed schemes) shall be modified in its application to a section of a scheme to which regulation 14 applies so that it shall be read as if, after subsection (3A), there were inserted the following subsection–
3B
Where the trustees or managers of a multi-employer section of a segregated scheme receive a notice from the Board under subsection (3A), they must send a copy of that notice as soon as practicable to all the employers in relation to that section of the scheme and to the trustees or managers of each section of the scheme (if different).
.
.
8
In regulation 28(4)(b)(iv) (application and effect), after “administration of the section” insert —
; and
c
Part 2 of the Act shall be read as if section 143A were omitted
.
9
After regulation 37 (Board to act as creditor of the employer), insert —
Ill health pensions
37A
1
Section 141 of the Act (effect of a review) shall be modified in its application to a segregated part to which regulation 28 applies so that it shall be read as if–
a
in subsection (4) the words “a determination under section 143(2)(a) or” were omitted; and
b
in subsection (5)(a) the words “makes a determination under section 143(2)(a) or” were omitted.
2
Section 142(1) of the Act (sections 140 and 141: interpretation) shall be modified in its application to a segregated part to which regulation 28 applies so that it shall be read as if, for the words “143(2)(b)” in the definition of “scheme valuation” there were substituted the word “143”.
.
10
In regulation 38 (valuation of assets) —
a
for paragraph (1)(b), substitute–
b
for subsection (2), there were substituted the following subsection–
2
For the purposes of determining whether the condition in subsection (2)(a) of the section in question is satisfied, the Board must, as soon as reasonably practicable, obtain an actuarial valuation of the section as a whole and of the segregated part as at the relevant time.
;
;
b
after paragraph (1)(b), insert–
ba
subsection (2A) were omitted;
bb
for the words “a determination made under subsection (2)(a) or an actuarial valuation obtained under subsection (2)(b)” in subsection (4), there were substituted the words “this section”;
bc
subsection (5C) were omitted;
bd
in subsection (6), the words “for the purposes of an actuarial valuation obtained under subsection (2)(b)” were omitted;
;
c
in paragraph (1)(c), omit “and”;
d
after paragraph (1)(c), insert–
ca
in subsection (9)–
i
for the words “requires a determination to be made, or an”, there were substituted the words “requires the”, and
ii
the words “the determination or” were omitted;
cb
for the words “requires a determination to be made, or an” in subsection (10), there were substituted the words “requires the”;
;
e
in paragraph (1)(d), after paragraph (i) insert–
ia
the words “makes a determination under subsection (2)(a) or” in paragraph (b)(ii) were omitted; and
;
f
for paragraph (2)(a) substitute —
a
for the words “obtains a valuation in respect of a scheme under section 143(2)(b)” in subsection (1), there were substituted the words “obtains a valuation or a further valuation in respect of the section as a whole and of the segregated part under section 143”; and
; and
g
for paragraph (3)(a), substitute–
a
for the words “a valuation obtained under section 143(2)(b) is not binding” in subsection (1), there were substituted the words “a valuation or a further valuation obtained under section 143 of the section as a whole and of the segregated part is not binding”;
.
11
In regulation 40 (reconsideration) for paragraph (1), substitute —
1
Section 151 of the Act (application for reconsideration) shall be modified in its application to a segregated part to which regulation 28 applies, so that it shall be read as if —
a
for the words “the determination made by the Board or valuation obtained by the Board in respect of the scheme under section 143(2)” in subsections (2)(b) and (3)(b) there were substituted the words “the valuation obtained by the Board under section 143 in respect of the segregated part”;
b
the words “determination or” in paragraphs (a)(ii) and (b)(ii) of subsection (6) were omitted;
c
in the definition of “protected benefits quotation” in subsection (8), from the words “in relation to a scheme” to “the reconsideration time” there were substituted–
in relation to a segregated part of a multi-employer section of a segregated scheme, means a quotation for one or more annuities from one or more insurers, being companies willing to accept payment in respect of the members of the segregated part from the trustees or managers of the scheme, which would provide in respect of each member of the segregated part from the reconsideration time
; and
d
for the words “under section 143(2)(b)” in subsection (10), there were substituted the words “under that section”.
.
12
In regulation 41 (closed schemes, requirement to wind up schemes with sufficient assets and applications and notifications where closed schemes have insufficient assets) —
a
after paragraph (2)(a), insert–
aa
the words “determination made by the Board or” in subsection (5)(b), were omitted;
; and
b
after paragraph (5), insert–
6
Section 158 of the Act (duty to assume responsibility for closed schemes) shall be modified in its application to a segregated part to which regulation 28 applies so that it shall be read as if–
a
for subsection (3), there were substituted the following subsection–
3
For the purposes of determining whether the condition in subsection (1) is satisfied, the Board must, as soon as reasonably practicable, obtain an actuarial valuation (within the meaning of section 143) of the segregated part as at the relevant time.
;
b
subsection (3A) were omitted;
c
in subsection (5)–
i
for the words “a determination made under subsection (3)(a) and a valuation obtained under subsection (3)(b)” there were substituted the words “a valuation obtained under subsection (3);
ii
for the words “a determination made under section 143(2)(a) and a valuation obtained under section 143(2)(b)” there were substituted the words “a valuation obtained under section 143”; and
iii
paragraph (aa) were omitted; and
d
in subsection (6)–
i
“, 143A” were omitted; and
ii
paragraph (aa) were omitted.
.
13
In regulation 42 (transfer notices and assumption of responsibility for a scheme), after paragraph (1)(b) insert —
ba
for the words “determination made or valuation obtained under section 143(2)” in subsection (3), there were substituted the words “valuation obtained under section 143”;
bb
in subsection (4) the words “determination made or” were omitted;
.
14
In regulation 45(4)(b)(iv) (application and effect), after “administration of the segregated part” insert —
; and
c
Part 2 of the Act shall be read as if section 143A were omitted
.
15
After regulation 53 (Board to act as creditor of the employer), insert —
Ill health pensions
53A
1
Section 141 of the Act (effect of a review) shall be modified in its application to a segregated part to which regulation 45 applies so that it shall be read as if–
a
in subsection (4) the words “a determination under section 143(2)(a) or” were omitted; and
b
in subsection (5)(a) the words “makes a determination under section 143(2)(a) or” were omitted.
2
Section 142(1) of the Act (sections 140 and 141: interpretation) shall be modified in its application to a segregated part to which regulation 45 applies, so that it shall be read as if for the words “143(2)(b)” in the definition of “scheme valuation” there were substituted the word “143”.
.
16
In regulation 54 (valuation of assets) —
a
for paragraph (1)(b), substitute–
b
for subsection (2) there were substituted the following subsection–
2
For the purposes of determining whether the condition in subsection (2)(a) of the section in question is satisfied, the Board must, as soon as reasonably practicable, obtain an actuarial valuation of the section as a whole and of the segregated part as at the relevant time.
;
;
b
after paragraph (1)(b), insert —
ba
subsection (2A) were omitted;
bb
for the words “a determination made under subsection (2)(a) or an actuarial valuation obtained under subsection (2)(b)” in subsection (4), there were substituted the words “this section”;
bc
subsection (5C) were omitted;
bd
in subsection (6), the words “for the purposes of an actuarial valuation obtained under subsection (2)(b)” were omitted;
;
c
in paragraph (1)(c), omit “and”;
d
after paragraph (1)(c), insert —
ca
in subsection (9)–
i
for the words “requires a determination to be made, or an”, there were substituted the words “requires the”; and
ii
the words “the determination or” were omitted;
cb
for the words “requires a determination to be made, or an” in subsection (10), there were substituted the words “requires the”;
;
e
in paragraph (1)(d), after paragraph (i) insert–
ia
the words “makes a determination under subsection (2)(a) or” in paragraph (b)(ii) were omitted; and
;
f
for paragraph (2)(a) substitute —
a
for the words “obtains a valuation in respect of a scheme under section 143(2)(b)” in subsection (1), there were substituted the words “obtains a valuation or a further valuation in respect of the section as a whole and of the segregated part under section 143”; and
; and
g
for paragraph (3)(a), substitute–
a
for the words “a valuation obtained under section 143(2)(b) is not binding” in subsection (1), there were substituted the words “a valuation or a further valuation obtained under section 143 of the section as a whole and of the segregated part is not binding”;
.
17
In regulation 56 (reconsideration), for paragraph (1) substitute —
1
Section 151 of the Act (application for reconsideration) shall be modified in its application to a segregated part to which regulation 45 applies so that it shall be read as if —
a
for the words “the determination made by the Board or the valuation obtained by the Board in respect of the scheme under section 143(2)” in subsections (2)(b) and (3)(b), there were substituted the words “the valuation obtained by the Board under section 143 in respect of the segregated part”;
b
the words “determination or” in paragraphs (a)(ii) and (b)(ii) of subsection (6) were omitted;
c
in the definition of “protected benefits quotation” in subsection (8), from the words “in relation to a scheme” to “the reconsideration time” there were substituted–
in relation to a segregated part of a non-segregated scheme, means a quotation for one or more annuities from one or more insurers, being companies willing to accept payment in respect of the members of the segregated part from the trustees or managers of the scheme, which would provide in respect of each member of the segregated part from the reconsideration time
; and
d
for the words “under section 143(2)(b)” in subsection (10), there were substituted “under that section”.
.
18
In regulation 57 (closed schemes, requirement to wind up schemes with sufficient assets and applications and notifications where closed schemes have insufficient assets) —
a
after paragraph (2)(a), insert–
aa
the words “determination made by the Board or” in subsection (5)(b), were omitted;
; and
b
after paragraph (5), insert —
6
Section 158 of the Act (duty to assume responsibility for closed schemes) shall be modified in its application to a segregated part to which regulation 45 applies so that it shall be read as if–
a
for subsection (3), there were inserted the following subsection–
3
For the purposes of determining whether the condition in subsection (1) is satisfied the Board must, as soon as reasonably practicable, obtain an actuarial valuation (within the meaning of section 143) of the segregated part as at the relevant time.
;
b
subsection (3A) were omitted;
c
in subsection (5)–
i
for the words “a determination made under subsection (3)(a) and a valuation obtained under subsection (3)(b)” there were substituted the words “a valuation obtained under subsection (3)”;
ii
for the words “a determination made under section 143(2)(a) and a valuation obtained under section 143(2)(b)” there were substituted the words “a valuation obtained under section 143”; and
iii
paragraph (aa) were omitted; and
d
in subsection (6)–
i
“, 143A” were omitted; and
ii
paragraph (aa) were omitted.
.
19
In regulation 58 (transfer notices and assumption of responsibility for a scheme), after paragraph (1)(b) insert —
ba
for the words “determination made or valuation obtained under section 143(2)” in subsection (3), there were substituted the words “valuation obtained under section 143”;
bb
in subsection (4) the words “determination made or” were omitted;
.
20
In regulation 68 (valuation of assets) after “Sections” insert “143A(4)(c) (Determinations under section 143),”.
Amendment of the Pension Protection Fund (Entry Rules) Regulations 2005
3
1
Regulation 24 of the Pension Protection Fund (Entry Rules) Regulations 2005 is amended as follows.
2
For paragraph (1)(a) substitute —
a
either–
i
a protected benefits quotation in relation to the scheme, or
ii
written evidence which shows that the trustees or managers of the scheme have taken all reasonable steps to obtain a protected benefits quotation but were unable to do so, and
.
3
In paragraph (2) —
a
in sub-paragraph (f), after “binding valuation notice” insert “under section 145(3) or a binding determination notice under section 143A(4)”; and
b
in sub-paragraphs (h) and (i), insert at the beginning “where the application is accompanied by a protected benefits quotation,”.
Amendment of the Pension Protection Fund (Review and Reconsideration of Reviewable Matters) Regulations 2005
4
1
The Pension Protection Fund (Review and Reconsideration of Reviewable Matters) Regulations 2005 are amended as follows.
2
In regulation 3 (time for making an application for a review decision) —
a
in paragraph (1)(a)–
i
after “an application concerning”, insert “the issue of a determination under section 143(2)(a) or”, and
ii
after “trustees or managers of the scheme provide”, insert “a summary of the determination or”;
b
after paragraph (3)(d), insert–
da
the issue of–
i
a determination under section 143(2)(a) (whether condition in section 127(2)(a) or 128(2)(a) satisfied); or
ii
a notice under section 143(2A) (whether Board will make a determination or obtain an actuarial valuation);
;
c
in paragraph (3)(j), omit “or”; and
d
after paragraph (3)(j), insert–
ja
the issue of–
i
a determination under section 158(3)(a) (whether condition in section 158(1) satisfied); or
ii
a notice under section 158(3A) (whether Board will make a determination or obtain an actuarial valuation); or
.
3
In regulation 15(3) (time for making an application to reconsider) —
a
after sub-paragraph (d), insert–
da
the issue of–
i
a determination under section 143(2)(a) (whether condition in section 127(2)(a) or 128(2)(a) satisfied); or
ii
a notice under section 143(2A) (whether Board will make a determination or obtain an actuarial valuation);
;
b
in sub-paragraph (i), omit “or”; and
c
in sub-paragraph (j) after “(closed schemes)”, insert–
; or
k
the issue of–
i
a determination under section 158(3)(a) (whether condition in section 158(1) satisfied); or
ii
a notice under section 158(3A) (whether Board will make a determination or obtain an actuarial valuation).
.
4
In the table in the Schedule (interested person) —
a
after paragraph 7A, insert–
7B Paragraphs 7B and 7C 7B The trustees or managers of the scheme. 7C Paragraph 7D 7C(a) the trustees or managers of the scheme; and
(b) the members of that scheme or, where a member has died, any person entitled to present payment of a pension by reason of rights under the scheme in respect of a deceased member.
;
b
omit paragraph 8; and
c
after paragraph 12, insert–
12A Paragraphs 14A, 14B and 14C 12A The trustees or managers of the scheme.
.
Amendment of the Pension Protection Fund (Valuation) Regulations 2005
5
1
The Pension Protection Fund (Valuation) Regulations 2005 are amended as follows.
2
In regulation 1(2) (commencement, citation and interpretation) —
a
in the definition of “appropriate person”, after “section 143(11)(a)(ii) of the Act” insert “, in the case of a section 143 determination, means the Board”;
b
after the definition of “restricted information”, insert —
“section 143 determination” means a determination by the Board under section 143(2)(a) of the Act;
;
c
for the definition of “section 143 valuation”, substitute —
“section 143 valuation” means an actuarial valuation under section 143(2)(b) of the Act;
; and
d
after the definition of “section 143 valuation”, insert —
“section 152 determination” means a determination by the Board for the purposes of section 152(2B) of the Act;
“section 152(10A) valuation” means a valuation under section 152(10A) of the Act;
“section 158 determination” means a determination by the Board under section 158(3)(a) of the Act;
.
3
After regulation 2 (provision of actuarial valuation to determine scheme underfunding), insert —
Section 143 determinations
2A
1
This regulation applies where the Board is making a section 143 determination in respect of an eligible scheme.
2
The Board must determine the value of the assets and protected liabilities of that scheme —
a
by using the information contained in the most recent section 179 valuation or an appropriate alternative actuarial valuation;
b
by updating that information in accordance with the statement issued by the Board under section 143(5C) of the Act; and
c
in accordance with regulations 3(a) and (c), 4, 6(1)(a) and (2), and 7(1) to (4)(c).
3
In this regulation —
“an appropriate alternative actuarial valuation” means a written valuation of the scheme’s assets and liabilities prepared and signed by the actuary; and
“the actuary” means–
the actuary appointed under section 47(1)(b) of the Pensions Act 1995 (professional advisers) in relation to the scheme, or
a person who is a Fellow of the Institute and Faculty of Actuaries.
.
4
In regulations 3(a) and (c) (excluded assets) and 6(1)(a) (valuation of protected liabilities), after “section 143” insert “determination or section 143”.
5
In regulation 4 (contribution notices, financial support directions and restoration orders) after “prior to the date that” insert “the determination is made or”.
6
In regulation 7 (alternative valuation of assets and protected liabilities in specific cases) —
a
in paragraphs (1) and (2), after “section 143” insert “determination or a section 143”;
b
in paragraph (4) omit “a section 143 valuation”;
c
in paragraph (4)(a), (b) and (c) insert at the beginning “a section 143 determination or a section 143 valuation,”;
d
in paragraph (4)(a) after “in accordance with” insert “the statement issued by the Board under section 143(5C) of the Act or”;
e
in paragraph (4)(b)–
i
after “the date” insert “the determination is made under section 143(2)(a) of the Act or the date”; and
ii
in paragraph (ii) after “section 143” insert “determination or section 143”;
f
in paragraph (4)(c)(ii), after “in accordance with” insert “a statement issued by the Board under section 143(5C) of the Act or”; and
g
in paragraph (4)(d) and (e) insert at the beginning “a section 143 valuation,”.
7
After regulation 7 (alternative valuation of assets and protected liabilities in specific areas), insert —
Application of these regulations to applications for reconsideration and by closed schemes
7A
1
Regulations 2A, 3(a) and (c), 4, 6(1)(a) and (2), and 7(1) to (4)(c) apply in relation to a section 152 determination and a section 158 determination as they apply in relation to a section 143 determination.
2
In the application of regulation 2A to section 152 determinations and section 158 determinations, the reference in paragraph (2)(a) to the most recent section 179 valuation is to be read as a reference to the most recent section 143 or section 179 valuation.
3
Regulations 3 to 7 apply in relation to a section 152(10A) valuation as they apply in relation to a section 143 valuation.
4
In the application of regulations 5 and 7 to section 152(10A) valuations —
a
the references to “relevant accounts” are to be read as references to “audited scheme accounts as defined in section 151(8) of the Act”; and
b
the references to “appropriate person” are to be read as references to “person who is a Fellow of the Institute and Faculty of Actuaries”.
.
8
After regulation 9 (form and content of section 143 valuation and notice), insert —
Form and content of section 143A notice of determination
9A
Where a section 143 determination becomes binding, the notice which the Board must issue under section 143A(4) shall be in writing and shall contain the following information —
a
the name or type of notice issued;
b
the date on which the notice is issued;
c
the name, address and pension scheme registration number of the scheme in respect of which the notice is issued;
d
a statement that the section 143 determination has become binding;
e
the name of the employer in relation to the scheme in respect of which the notice is issued; and
f
whether the notice issued by the Board contains any restricted information and, if so, the nature of the restriction.
.
Amendment of the Pension Protection Fund (Provision of Information) Regulations 2005
6
1
Schedule 2 to the Pension Protection Fund (Provision of Information) Regulations 2005 (information to be provided by trustees or managers) is amended as follows.
2
In paragraph 1(1) —
a
before the definition of “hybrid scheme”, insert —
“determination” means a determination made by the Board under section 143(2)(a);
“determination summary” means, in relation to each member of the scheme, a summary of the determination which contains–
a summary of the overall assets and liabilities of the scheme;
details of how that member’s entitlement to compensation would be calculated if the Board assumed responsibility for the scheme;
details of any information the Board holds on that member’s pensionable service and accrued rights;
where there is a pension in payment to that member at the assessment date, the annual amount of that pension; and
a statement describing how an application may be made to the Board for the review of the determination, how it will be considered and the Board’s powers on making a review decision;
; and
b
in the definition of “valuation”, for “143” substitute “143(2)(b)”.
3
In the table in paragraph 1(2), after the fourteenth row insert–
Where the scheme is not a hybrid scheme, a multi-employer scheme or a partially guaranteed scheme, all members. A copy of the determination summary. The period of 28 days beginning on the day on which the trustees or managers receive a copy of the determination. Where the scheme is a hybrid scheme, all members other than those who receive only money purchase benefits. A copy of the determination summary. The period of 28 days beginning on the day on which the trustees or managers receive a copy of the determination. Where the scheme is a multi-employer scheme, all members who are in the section of the scheme to which the determination relates. A copy of the determination summary. The period of 28 days beginning on the day on which the trustees or managers receive a copy of the determination. Where the scheme is a partially guaranteed scheme, all members who are in the unsecured part of the scheme. A copy of the determination summary. The period of 28 days beginning on the day on which the trustees or managers receive a copy of the determination.
.
Amendment of the Occupational Pension Schemes (Fraud Compensation Payments and Miscellaneous Amendments) Regulations 2005
7
In regulation 1(3) of the Occupational Pension Schemes (Fraud Compensation Payments and Miscellaneous Amendments) Regulations 2005 (citation, commencement and interpretation) , for the definition of “ PPF valuation” substitute —
“PPF valuation” means an actuarial valuation obtained under section 143(2)(b) (valuation of assets and protected liabilities);
.
Amendment of the Pension Protection Fund (Closed Schemes) Regulations 2007
8
In regulation 3(1) of the Pension Protection Fund (Closed Schemes) Regulations 2007 (obtaining of actuarial valuations of closed schemes) —
a
in the definition of “the relevant period”, for “actuarial valuation of the scheme under section 143” substitute “Board’s determination under section 143(2)(a) or actuarial valuation of the scheme under section 143(2)(b)”; and
b
omit the definition of “section 143 valuation”.
Revocation of part of the Pension Protection Fund (Miscellaneous Amendments) Regulations 2012
9
1
In the Pension Protection Fund (Miscellaneous Amendments) Regulations 2012 (“the 2012 Regulations ”), the following regulations are revoked —
a
regulation 1(3) (interpretation);
b
regulation 2 (amendment of the Pension Protection Fund (Multi-employer Schemes) (Modification) Regulations 2005);
c
regulation 3 (amendment of the Pension Protection Fund (Entry Rules) Regulations 2005);
d
regulation 4 (amendment of the Pension Protection Fund (Review and Reconsideration of Reviewable Matters) Regulations 2005);
e
regulation 5 (amendment of the Pension Protection Fund (Valuation) Regulations 2005);
f
regulation 6 (amendment of the Pension Protection Fund (Provision of Information) Regulations 2005);
g
regulation 8 (amendment of the Occupational Pension Schemes (Fraud Compensation Payments and Miscellaneous Amendments) Regulations 2005); and
h
regulation 9 (amendment of the Pension Protection Fund (Closed Schemes) Regulations 2007).
2
The effect of each of the revocations specified in paragraph (1)(b) to (h) on each Statutory Instrument referred to in those sub-paragraphs is that each of those instruments has effect as if the 2012 Regulations had not been made.
Transitional provision
10
Any action taken pursuant to amendments made by the 2012 Regulations before the date these Regulations come into force shall be deemed to have been taken under these Regulations.
Signed by authority of the Secretary of State for Work and Pensions.
Steve Webb
Minister of State,
Department for Work and Pensions
11th December 2012 |
The Insolvency Act 1986 (Disqualification from Parliament) Order 2012
Citation and commencement
1
This Order may be cited as the Insolvency Act 1986 (Disqualification from Parliament) Order 2012 and shall come into force on the day after the day on which it is made.
Amendments to the Insolvency Act 1986
2
The Insolvency Act 1986 has effect subject to the following amendments (which provide for sections 426A and 426B of that Act to have effect in relation to bankruptcy restrictions orders made and undertakings accepted in Northern Ireland and make provision consequential on that effect).
3
In section 426A (disqualification from Parliament (England and Wales)) —
a
in the heading for “(England and Wales)” substitute “(England and Wales and Northern Ireland)”;
b
after subsection (6) insert —
7
If the Department of Enterprise, Trade and Investment for Northern Ireland accepts a bankruptcy restrictions undertaking made by a member of the House of Commons or the House of Lords under Schedule 2A to the Insolvency (Northern Ireland) Order 1989, the Department shall notify the Speaker of that House.
8
In this section a reference to a bankruptcy restrictions order or an interim order includes a reference to a bankruptcy restrictions order or an interim order made under Schedule 2A to the Insolvency (Northern Ireland) Order 1989.
.
4
In section 426B (devolution) —
a
in subsection (1) after “If a court” insert “in England and Wales”;
b
after subsection (1) insert —
1A
If the High Court in Northern Ireland makes a bankruptcy restrictions order or interim order under Schedule 2A to the Insolvency (Northern Ireland) Order 1989 in respect of a member of the Scottish Parliament or the National Assembly for Wales, the Court shall notify the presiding officer of that body.
;
c
at the end insert —
3
If the Department of Enterprise, Trade and Investment for Northern Ireland accepts a bankruptcy restrictions undertaking made by a member of the Scottish Parliament or the National Assembly for Wales under Schedule 2A to the Insolvency (Northern Ireland) Order 1989, the Department shall notify the presiding officer of that body.
.
5
In section 427 (disqualification from Parliament (Scotland and Northern Ireland)) —
a
in the heading omit “and Northern Ireland”;
b
in subsection (1) omit “a court in Northern Ireland adjudges an individual bankrupt or”;
c
in subsection (2) —
i
in paragraph (a) for “the adjudication is annulled or the award recalled” substitute “the award is recalled”;
ii
in paragraph (b) omit “annulment,”;
d
in subsection (4) omit “adjudication or”;
e
in subsection (5) omit “adjudication or” in both places it occurs;
f
in subsection (6) —
i
omit “adjudication or” in each place it occurs;
ii
in each of paragraphs (a) and (b), omit “annulled,”;
g
in subsection (6C) for the words preceding paragraph (a) substitute —
6C
Subsections (4) to (6) have effect in relation to a member of the Northern Ireland Assembly but as if —
.
6
In section 441(1)(a) (extent (Northern Ireland)), after “426, ” insert “426A, 426B,”.
Hugo Swire
Minister of State
Northern Ireland Office
13th June 2012 |
The Police Pensions (Amendment) Regulations 2012
In accordance with section 1(1) of that Act, the Treasury have consented to the making of these Regulations and the Secretary of State has consulted with the Police Negotiating Board for the United Kingdom .
Citation, commencement and extent
1
1
These Regulations may be cited as the Police Pensions (Amendment) Regulations 2012 and shall come into force on 1st April 2012.
2
These Regulations extend to England and Wales.
Amendment to the Police Regulations 1987
2
1
The Police Pensions Regulations 1987 are amended as follows.
2
For regulation G2 (pension contribution payable by regular policeman) substitute —
Pension contribution payable by regular policeman
G2
1
Subject to paragraph (3), a regular policeman whose basic annual salary —
a
is less than £60,000 shall pay to the police pension authority pension contributions at the rate of 1p a week less than —
i
in a case where he is ineligible under regulation G7 or G8 for a pension award payable on the ground of permanent disablement, 8.75 per cent of his pensionable pay; and
ii
in any other case, 12.25 per cent of his pensionable pay;
b
is £60,000 or more shall pay to the police pension authority pension contributions at the rate of 1p a week less than —
i
in a case where he is ineligible under regulation G7 or G8 for a pension award payable on the ground of permanent disablement, 9 per cent of his pensionable pay; and
ii
in any other case, 12.5 per cent of his pensionable pay.
2
The pension contributions payable under paragraph (1) upon each instalment of pay shall fall due at the same time as the instalment and may, without prejudice to any other method of payment, be discharged by way of a reduction of the appropriate amount made by the police pension authority from the said instalment.
3
Paragraph (1) shall not apply in the case of a regular policeman who has made an election under regulation G4(1) which is, for the time being, in effect.
4
For the purposes of this regulation “basic annual salary” means —
a
in the case of a regular policeman in full-time service, the salary payable to that regular policeman in accordance with a determination made by the Secretary of State under regulation 24 or 27 of the Police Regulations 2003 ; and
b
in the case of a regular policeman in part-time service, the salary that would be payable to that regular policeman in accordance with such a determination if he was in full-time service,
and does not include any bonus, weighting or other payment payable to the regular policeman in accordance with such a determination.
.
Amendment to the Police Pensions Regulations 2006
3
1
The Police Pensions Regulations 2006 are amended as follows.
2
For regulation 7 (pension contributions payable by regular police officers) substitute —
Pension contributions payable by regular police officers
7
1
Subject to paragraph (3), a regular police officer whose basic annual salary —
a
is £27,000 or less shall pay to the police pension authority pension contributions at the rate of —
i
in a case where he is ineligible under regulation 8 for a pension award payable on the ground of permanent disablement, 6.6 per cent of his pensionable pay; and
ii
in any other case, 10.1 per cent of his pensionable pay;
b
is more than £27,000 but less than £60,000 shall pay to the police pension authority pension contributions at the rate of —
i
in a case where he is ineligible under regulation 8 for a pension award payable on the ground of permanent disablement, 7 per cent of his pensionable pay; and
ii
in any other case, 10.5 per cent of his pensionable pay;
c
is £60,000 or more shall pay to the police pension authority pension contributions at the rate of —
i
in a case where he is ineligible under regulation 8 for a pension award payable on the ground of permanent disablement, 7.25 per cent of his pensionable pay; and
ii
in any other case, 10.75 per cent of his pensionable pay.
2
The pension contributions payable under paragraph (1) upon each instalment of pay shall fall due at the same time as the instalment and may, without prejudice to any other method of payment that may be agreed by the police pension authority in exceptional circumstances, be discharged by way of a reduction of the appropriate amount made by the police pension authority from the instalment.
3
Paragraph (1) shall not apply in the case of a regular police officer who has made an election under regulation 9 which is, for the time being, in effect.
4
For the purposes of this regulation “basic annual salary” means —
a
in the case of a regular policeman in full-time service, the salary payable to that regular policeman in accordance with a determination made by the Secretary of State under regulation 24 or 27 of the Police Regulations 2003; and
b
in the case of a regular policeman in part-time service, the salary that would be payable to that regular policeman in accordance with such a determination if he was in full-time service,
and does not include any bonus, weighting or other payment payable to the regular policeman in accordance with such a determination.
.
Amendments to the Police Pensions (Purchase of Increased Benefits) Regulations 1987
4
1
The Police Pensions (Purchase of Increased Benefits) Regulations 1987 are amended as follows.
2
In regulation 5 (payment by periodical contributions), for paragraph (5) substitute —
5
Where a policeman elects to make payment under this regulation —
a
the periodical contributions payable by him for any period shall not, when aggregated with any other pension contributions (including additional, further and special contributions, if any) payable by him for that period, exceed (4 + X)% of his pensionable pay, where X is the rate of contributions payable by the policeman under regulation G2(1) of the principal regulations; and
b
where a policeman’s periodical contributions are restricted by sub-paragraph (a), he shall make a lump sum payment of an amount determined by the Government Actuary to be the actuarial equivalent of the difference between the restricted periodical contributions payable and those which would be payable but for that sub-paragraph.
.
3
In Part 1 of the Schedule (payments), omit paragraph 4 (Inland Revenue limits on contributions).
Nick Herbert
Minister of State
Home Office
23rd February 2012
We consent
Michael Fabricant
Angela Watkinson
Two of the Lords Commissioners of Her Majesty’s Treasury
28th February 2012 |
The A282 Trunk Road (Dartford-Thurrock Crossing Charging Scheme) Order 2012
Appropriate persons have been consulted in accordance with section 170(1C) of that Act.
Citation, commencement and period in force
1
1
This Order may be cited as the A282 Trunk Road (Dartford-Thurrock Crossing Charging Scheme) Order 2012;
2
Articles 1, 2, 5 and 6 come into force on 1st October 2012; and
3
Articles 3, 4 and 7 come into force on the 7th October 2012.
Interpretation
2
In this Order —
“charging regime” means the charging regime set out in Schedule 2 that applies to the crossing;
“crossing” means the length of highway set out in Schedule 1 and as indicated on the plan;
“local resident” means a person who permanently resides in the borough of Dartford or Thurrock;
“the plan” means the plan marked “the A282 Trunk Road (Dartford-Thurrock Crossing Charging Scheme) Order 2012”, signed by authority of the Secretary of State for Transport, and deposited at DfT Records Management Branch, Floor 13 (IMD), Ashdown House, St Leonards-on-Sea, Hastings, East Sussex TN37 7GA; and
1
all measurements of distance are measured along the route of the crossing.
Application of charging regime
3
From 0600 hours on 7th October 2012 the crossing is designated as being subject to the charging regime.
Charging regime
4
1
There will be no charge for any motor vehicle from 2200 hours up to, but not including, 0600 hours the following morning.
2
The charging regime applies to all classes of motor vehicles, as defined in the Road User Charging and Workplace Parking Levy (Classes of Motor Vehicles) (England) Regulations 2001 , using the crossing with the exception of those motor vehicles set out in Schedule 3.
3
For the purposes of this Order, classes of motor vehicle to which the charging regime applies, and which are drawing a trailer, will be charged as though they are not drawing a trailer.
Advance payments
5
1
Subject to paragraph (3), the Secretary of State (or the Secretary of State’s agent) may enter into an agreement (“a composition agreement”) with persons under which, on such terms as may be provided by the agreement, charges for a motor vehicle to be used on the crossing may be paid compound in advance.
2
The composition agreement may relate to use on such number of occasions, or during such period, as may be provided by the agreement, and may provide for a reduction to the charges set out in the charging regime.
3
Any composition agreement offered by the Secretary of State (or the Secretary of State’s agent) must be offered on the same terms to all persons seeking to enter into such an agreement.
Advance payments for local residents
6
1
Subject to paragraph (3), the Secretary of State (or the Secretary of State’s agent) may enter into an agreement with local residents (“a local resident’s agreement”) under which, on such terms as may be provided by the agreement, charges for a motor vehicle to be used on the crossing may be paid compound in advance.
2
A local resident’s agreement may relate to use on such number of occasions, or during such period, as may be provided by the agreement, and may provide for a reduction to the charges set out in the charging regime.
3
A local resident’s agreement offered by the Secretary of State (or the Secretary of State’s agent) must be offered on the same terms to all local residents seeking to enter into such an agreement.
Revocation
7
The A282 Trunk Road (Dartford-Thurrock Crossing Charging Scheme) Order 2008 is revoked.
Signed by authority of the Secretary of State for Transport
Fiona C Wilson
Divisional Manager Strategic Roads Division
Department for Transport
14th September 2012
SCHEDULE 1
LENGTH OF HIGHWAY SUBJECT TO THE CHARGING REGIME
Article 3
The length of highway is a length of the A282 trunk road starting at a point below the north face of the bridge carrying Crossways Boulevard University Way (A206) over the trunk road at Junction 1A at Dartford, in the County of Kent, and extending northwards to a point approximately 300 metres north of where it crosses London Road at West Thurrock, in the County of Essex and is labelled A on the plan and carried through twin tunnels beneath the River Thames and on the Queen Elizabeth II bridge over the River Thames.
SCHEDULE 2
THE CHARGING REGIME
Article 4
Item Class of Motor Vehicle and Description Charge for each motor vehicle for a single journey using the crossing
A Classes A(a), B(a), C(a) D(a) and E(a)
Including mopeds, motorcycles, motor tricycles, light quadricycles and quadricycles.
Free B Classes L(a), M1(a)
Including motor caravans, or motor cars with at least four wheels and no more than eight seats in addition to the driver’s seat.
£2.00 C Classes NAB(1)(a) and MAB(1)(a)
Including light goods vehicles, or motor coaches or omnibus with more than eight seats in addition to the driver’s seat, having no more than two axles.
£2.50 D Classes NAB(2)(a), NAB(3)(a), MAB(2)(a) and MAB(3)(a) Including heavy goods vehicles, motor coaches or omnibus with more than eight seats in addition to the driver’s seat, having more than two axles.
£5.00
SCHEDULE 3
DESCRIPTIONS OF MOTOR VEHICLES EXEMPT FROM THE CHARGING REGIME
Article 4(2)
1
The following descriptions of motor vehicles are exempt from the charging regime —
1
a police vehicle, identifiable as such by writing or markings on it or otherwise by its appearance, or being the property of the Service Authority for the National Criminal Intelligence Service or the Service Authority for the National Crime Squad and issued with a Registration Certificate, being used in the execution of duty;
2
a military vehicle, that is, a vehicle used for army, naval or air force purposes, while being driven by persons for the time being subject to the orders of a member of the armed forces of the Crown;
3
a military vehicle of a visiting force, that is, a vehicle used for army, naval or air force purposes, whilst being driven by a person who is part of any unit, contingent or detachment of a visiting force of a country, being present in the United Kingdom on the invitation of Her Majesty’s Government in the United Kingdom;
4
a fire engine as defined by paragraph 4(2) of Schedule 2 of the Vehicle Excise and Registration Act 1994 being used in the execution of duty;
5
a vehicle which is kept by a fire authority as defined by paragraph 5 of that Schedule being used in the execution of duty;
6
an ambulance as defined by paragraph 6(2) of that Schedule being used in the execution of duty;
7
a vehicle which is kept by a health service body as defined by paragraph 7 of that Schedule being used in the execution of duty;
8
invalid carriages as defined by paragraph 18 of that Schedule;
9
vehicles used by or kept for use by or for the purpose of a disabled person as defined by paragraph 19 of that Schedule;
10
vehicles used for the carriage of disabled persons by recognised bodies in accordance with paragraph 20 of that Schedule;
11
an omnibus being used for a local service as defined by section 2 of the Transport Act 1985 ;
12
a vehicle being used in connection with —
a
the collection of charges; or
b
the inspection, safety, maintenance, improvement or renewal of or other dealing with the length of highway described in Schedule 1 or any structure, works or apparatus in, on, under or over that length of highway; and
13
a vehicle used by or escorted by the Vehicle and Operator Service Agency in the execution of duty. |
The Value Added Tax (Consideration for Fuel Provided for Private Use) Order 2012
The Treasury, in exercise of the powers conferred by section 57(4) to (4G) of the Value Added Tax Act 1994 , make the following Order.
Citation, commencement and effect
1
1
This Order may be cited as the Value Added Tax (Consideration for Fuel Provided for Private Use) Order 2012.
2
This Order comes into force on 1st May 2012 and has effect from the beginning of prescribed accounting periods beginning on or after that date.
Amendment of section 57(3) of the Value Added Tax Act 1994
2
1
Section 57(3) of the Value Added Tax Act 1994 (determination of consideration for fuel supplied for private use) is amended as follows.
2
For Table A substitute —
Table A
Description of vehicle:
vehicle’s CO 2 emissions figure
12 month period
£
3 month period
£
1 month period
£
120 or less 665.00 166.00 55.00 125 1,000.00 250.00 83.00 130 1,065.00 266.00 88.00 135 1,135.00 283.00 94.00 140 1,200.00 300.00 100.00 145 1,270.00 316.00 105.00 150 1,335.00 333.00 111.00 155 1,400.00 350.00 116.00 160 1,470.00 366.00 122.00 165 1,535.00 383.00 127.00 170 1,600.00 400.00 133.00 175 1,670.00 416.00 138.00 180 1,735.00 433.00 144.00 185 1,800.00 450.00 150.00 190 1,870.00 467.00 155.00 195 1,935.00 483.00 161.00 200 2,000.00 500.00 166.00 205 2,070.00 517.00 172.00 210 2,135.00 533.00 177.00 215 2,200.00 550.00 183.00 220 2,270.00 567.00 189.00 225 or more 2,335.00 583.00 194.00
.
Angela Watkinson
Michael Fabricant
Two of the Lords Commissioners of Her Majesty’s Treasury
20th March 2012 |
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2012
Citation and Commencement
1
1
These Regulations may be cited as the Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2012.
2
These Regulations shall come into force —
a
on 18th June 2012 for all provisions except regulations 8(4) and 9(2) and (3);
b
on 1st October 2012 for regulation 8(4);
c
on 1st October 2013 for regulation 9(2) and (3).
Amendments to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010
2
The Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 are amended as follows.
Amendment to regulation 4
3
In regulation 4 (requirements where the service provider is an individual or partnership) —
a
for paragraph (3)(b), substitute —
b
a partnership and —
i
each of the partners satisfies the requirements set out in paragraph (5); and
ii
P satisfies the requirement set out in paragraph (6).
;
b
in paragraph (4), for “are that P or, where applicable, each of the partners” substitute “in paragraph 3(a) are that P”; and
c
after paragraph (4), insert —
5
The requirements referred to in paragraph 3(b)(i) are that each of the partners is —
a
of good character;
b
physically and mentally fit to carry on the regulated activity; and
c
able to supply to the Commission, or arrange for the availability of, information relating to themselves specified in Schedule 3.
6
The requirement referred to in paragraph 3(b)(ii) is that, through the combination of the qualifications, skills and experience of the partners, P has the necessary qualifications, skills and experience to carry on the regulated activity.
.
Amendment to regulation 12
4
In regulation 12 (cleanliness and infection control), after paragraph (2), insert —
3
In this regulation, “medical device” has the same meaning as in regulation 2 (interpretation) of the Medical Devices Regulations 2002 .
.
Substitution of regulation 18
5
For regulation 18 (consent to care and treatment) substitute —
18
1
In relation to the care and treatment provided for the service user, the registered person must have suitable arrangements in place for —
a
obtaining, and acting in accordance with, the consent of service users, or the consent of another person who is able lawfully to consent to care and treatment on that service user’s behalf; or
b
where (a) does not apply, establishing, and acting in accordance with, the best interests of the service user.
2
Section 4 of the Mental Capacity Act 2005 (best interests) applies for the purposes of this regulation as it applies for the purposes of that Act.
.
Amendment to regulation 27
6
In regulation 27(4) (offences), for “took all reasonable steps or exercised all due diligence” substitute “took all reasonable steps and exercised all due diligence”.
Insertion of new Part 8: Review
7
After Part 7 (revocation) insert —
PART 8 REVIEW
Review
30
1
Before 1st October 2017, the Secretary of State must —
a
carry out a review of these Regulations;
b
set out the conclusions of the review in a report; and
c
publish the report.
2
The report must in particular —
a
set out the objectives intended to be achieved by the regulatory system established by these Regulations;
b
assess the extent to which those objectives are achieved; and
c
assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
.
Amendments to Schedule 1
8
1
Schedule 1 (regulated activities) is amended as follows.
2
In paragraph 1 (personal care) —
a
for sub-paragraph (3)(c) substitute —
c
the services of a carer employed by an individual or related third party, without the involvement of an undertaking acting as an employment agency or employment business, and working wholly under the direction and control of that individual or related third party in order to meet the individual’s own care requirements; and
; and
b
in sub-paragraph (4), after the definition of “carer” insert —
,
“related third party” means —
an individual with parental responsibility (within the meaning of section 3 of the Children Act 1989 ) for a child to whom personal care services are to be provided;
an individual with power of attorney or other lawful authority to make arrangements on behalf of the person to whom personal care services are to be provided;
a group of individuals mentioned in either of paragraphs (a) and (b) making arrangements on behalf of one or more persons to whom personal care services are to be provided;
a trust established for the purpose of providing services to meet the health or social care needs of a named individual.
.
3
In paragraph 6 (assessment or medical treatment for persons detained under the 1983 Act) —
a
at the beginning of sub-paragraph (1), insert “Subject to sub-paragraph (1A),”;
b
after sub-paragraph (1), insert —
1A
Sub-paragraph (1) does not apply to the assessment or treatment by a registered medical practitioner appointed for the purposes of Part 4 of the 1983 Act in giving a certificate under sections 57 (treatment requiring consent and a second opinion), 58 (treatment requiring consent or a second opinion) or 58A (electro-convulsive therapy) of that Act .
4
In paragraph 7 (surgical procedures), after sub-paragraph (1)(a), insert —
aa
the purpose of sterilisation or reversal of sterilisation;
.
5
In paragraph 8 (diagnostic and screening procedures) —
a
in sub-paragraphs (1) and (2), for “sub-paragraph (3)” substitute “sub-paragraphs (3), (4A) and (4C)”;
b
in sub-paragraph (4) —
i
in paragraph (a)(i), after “pin prick” insert “or from a vein”;
ii
for paragraph (g) substitute —
g
the carrying out of a hearing needs assessment or the supply and fitting of a hearing aid carried out by a hearing aid dispenser or a person acting under the direction or supervision of a hearing aid dispenser where —
i
the patient is aged 19 or over, or
ii
the patient is under 19 years old and the procedure is carried out in, or arranged by, a school or 16 to 19 Academy;
h
the taking of urine samples where it is not necessary to send such samples for analysis to a place which is established for the purposes of carrying out tests or research in relation to samples of bodily cells, tissues or fluids;
i
the taking and analysing of wound swabs, hair samples or nail clippings;
j
the non-ambulatory recording of blood pressure;
k
the use of 12-lead electrocardiography;
l
the use of a peak flow meter to measure peak expiratory flow;
m
pulse oximetry when used for the purpose of spot recording;
n
spirometry when carried out for screening, non-diagnostic or monitoring purposes; and
o
diagnostic and screening procedures carried out by a person in connection with any of the activities listed in Schedule 2 (activities for which licences may be granted) to the Human Fertilisation and Embryology Act 1990 for which a licence has been granted to that person under section 16 (grant of licence) of that Act.
;
c
after sub-paragraph (4), insert —
4A
Where a service provider is registered in respect of an activity listed in any other paragraph of this Schedule, the procedures specified in sub-paragraph (4B), and the analysis and reporting of the results of those procedures, are excepted from sub-paragraphs (1) and (2) of this paragraph.
4B
The procedures referred to in sub-paragraph (4A) are —
a
the taking of blood or urine samples;
b
the analysis of urine or stool samples by means of dip stick or other reagent; and
c
the taking of tissue samples by means of —
i
a swab specimen from any external part of the body or from the mouth, ear, nose or throat, or
ii
skin scrapings.
4C
The carrying out of diagnostic and screening procedures mentioned in sub-paragraph (1) or analysis and reporting of such procedures for research is excepted from sub-paragraphs (1) and (2) where those procedures, or that analysis and reporting, do not form any part of an individual’s care or treatment.
; and
d
in sub-paragraph (5) —
i
before paragraph (a), insert —
za
“16 to 19 Academy” has the same meaning as in section 1B of the Academies Act 2010 ;
; and
ii
after paragraph (a), insert —
aa
“hearing aid dispenser” means a person registered as such with the Health Professions Council pursuant to article 5 of the 2001 Order ;
.
6
In paragraph 9 (management of supply of blood and blood derived products etc. ) —
a
insert “(1)” at the beginning of the existing paragraph;
b
insert at the beginning of sub-paragraph (1), “Subject to sub-paragraph (2),”; and
c
after sub-paragraph (1), insert —
2
Sub-paragraph (1) does not apply to the management of the supply of blood, blood components, tissues and products mentioned in sub-paragraph (1)(a) and (b) where that management does not involve direct physical contact with patients or donors.
3
For the purposes of this paragraph —
“donor” means a person from whom anything mentioned in sub-paragraph (1)(a) or (b) is derived;
“patient” means a person to whom anything mentioned in sub-paragraph (1)(a) or (b) is administered.
.
7
In paragraph 10 (transport services, triage and medical advice provided remotely) —
a
in sub-paragraph (1), at the beginning, insert “Subject to sub-paragraphs (2A) and (2B),”; and
b
after sub-paragraph (2), insert —
2A
Transport services which are provided within the confines of the site or venue being used for an activity or event mentioned in paragraph 5(3)(f) or (g) are excepted from sub-paragraph (1).
2B
The provision of an air ambulance is excepted from sub-paragraph (1) where —
a
the aircraft is registered with the Civil Aviation Authority pursuant to article 6 (aircraft to be registered) of the Air Navigation Order 2009 ; and
b
the person providing the air ambulance does not provide treatment to a patient.
.
Amendments to Schedule 2
9
1
Schedule 2 (regulated activities: general exceptions) is amended as follows.
2
For paragraph 4 substitute —
4
1
Subject to paragraph 5, and except where paragraph 3 applies , the provision of treatment in a surgery or consulting room by a medical practitioner who is (or group of medical practitioners who are) —
a
a service provider in respect of a regulated activity specified in paragraph 5 of Schedule 1 (treatment of disease, disorder or injury) or employed by such a service provider; and
b
either on the medical performers list for a designated body or employed by a service provider that is a designated body.
2
In this paragraph, “designated body” means a body prescribed by regulation 4 of the Medical Profession (Responsible Officers) Regulations 2010 .
.
3
In paragraph 5 —
a
in sub-paragraph (a), after “anaesthesia” insert “(other than local anaesthesia for the purposes of a procedure mentioned in paragraph 7(2) of Schedule 1)”;
b
omit sub-paragraph (b);
c
for sub-paragraph (c) substitute “medical services provided in connection with childbirth;”;
d
for sub-paragraph (g) substitute —
g
endoscopy other than using a device which does not have a lumen or other channel for the purpose or design of passing fluid or instruments through, or removing body tissue or fluid or any other item from, a person’s body;
; and
e
after sub-paragraph (h), insert —
i
intravenous, intrathecal or epidural administration of medicines or diagnostic agents;
j
the therapeutic or diagnostic use of x-rays, radiation, protons or magnetic resonance imaging; or
k
invasive cardiac physiology tests.
.
4
In paragraph 8 —
a
after “Medical” insert “or dental”;
b
after “otherwise than” insert “in conjunction with the provision of accommodation”.
5
In paragraph 10, after “medical”, insert “or dental”.
6
After paragraph 17, insert —
Exemption for the Olympics and Paralympics
18
1
Any activity which is carried on under temporary arrangements in relation to those persons taking part in, or attending, a London Olympic event during the London Olympics period.
2
In this paragraph, “London Olympic event” and “London Olympics period” have the meanings given by section 1 (interpretation of principal terms) of the London Olympic Games and Paralympic Games Act 2006 .
.
Signed by authority of the Secretary of State for Health.
Simon Burns
Minister of State,
Department of Health
12th June 2012 |
The Welsh Language Board (Transfer of Staff, Property, Rights and Liabilities) Order 2012
The Welsh Ministers, in exercise of the powers conferred by sections 146 and 150(5) of, and paragraphs 1 and 2 of Schedule 12 to, the Welsh Language (Wales) Measure 2011 , make the following Order:
Title and commencement
1
1
The title of this Order is the Welsh Language Board (Transfer of Staff, Property, Rights and Liabilities) Order 2012.
2
This Order comes into force on the 1 April 2012.
Interpretation
2
1
In this Order, “transfer date” (“ dyddiad trosglwyddo ”) means 1 April 2012 and references in this Order to —
a
“persons A” (“ personau A ”) are to persons employed by the Board immediately before the transfer date who have been offered and have accepted before that date employment with the Welsh Assembly Government;
b
“persons B” (“ personau B ”) are to persons employed by the Board immediately before the transfer date who have been offered and have accepted before that date employment with the Commissioner;
c
“persons C” (“ personau C ”) are to persons who are or have been employed by the Board at any time before the transfer date and whose employment does not transfer to the Commissioner or Welsh Assembly Government as a result of this Order;
d
“records” (“ cofnodion ”) include written records and records conveying information by any other means.
Transfer of staff
3
1
On the transfer date persons A transfer to the employment of the Welsh Assembly Government.
2
On the transfer date persons B transfer to the employment of the Commissioner.
General transfer of the Board’s property, rights and liabilities
4
1
On the transfer date the property, rights and liabilities specified in the Schedule to which the Board was entitled or subject immediately before that date transfer to the Welsh Ministers.
2
Subject to article 5 all other property, rights and liabilities to which the Board was entitled or subject immediately before the transfer date transfer on that date to the Commissioner.
Other rights and liabilities being transferred etc.
5
1
On the transfer date the rights and liabilities arising under or in connection with the employment contracts of persons C to which the Board was entitled or subject immediately before that date transfer to the Welsh Ministers.
2
Anything done before the transfer date by or in relation to the Board in respect of any person C or that person’s contract of employment is to be treated from that date as having been done by or in relation to the Welsh Ministers.
Access to records
6
1
Where records owned by the Board immediately before the transfer date have transferred to the Commissioner as a result of this Order, the Welsh Ministers may, after providing reasonable notice —
a
inspect those records; and
b
take, or be supplied with, copies of those records or any part of them.
2
The Welsh Ministers' power under paragraph (1) does not apply to records relating to the employment of persons B.
3
Where records owned by the Board immediately before the transfer date have transferred to the Welsh Ministers as a result of this Order, the Commissioner may, after providing reasonable notice —
a
inspect those records; and
b
take, or be supplied with, copies of those records or any part of them.
4
The Commissioner’s power under paragraph (3) does not apply to records that relate to the employment of persons A or C.
5
The powers conferred by this article must be exercised during normal office hours.
General provision
7
The transfers of property, rights and liabilities given effect by this Order are not affected by any provision (of whatever nature) which would otherwise prevent or restrict those transfers.
Leighton Andrews
Minister for Education and Skills, one of the Welsh Ministers
7 March 2012
SCHEDULE
Board property, rights and liabilities transferring to the Welsh Ministers
Article 4
PART 1
Property
1
a
The Enigma S21 chair that bears the model number E760MF and serial number 101562;
b
property which relates exclusively to a relevant Board project; and
c
all records other than records relating exclusively to —
i
grant agreements entered into by the Board with the Association of Welsh Translators and Interpreters;
ii
grant agreements entered into by the Board with Bangor University;
iii
employment by the Board of persons B;
iv
research and data collection undertaken or commissioned by the Board in connection with the use of Welsh;
v
the following Board projects —
aa
'Cymraeg yn y gweithle';
bb
'Iaith Gwaith';
cc
'Mae gen ti ddewis';
dd
'Enwau Lleoedd';
ee
'Estyn Llaw';
ff
the standardisation of Welsh language terminology;
gg
the development and promotion of the use of Welsh language information technology (including on-line dictionaries);
hh
the co-ordination and regulation of the provision of translation services;
vi
work undertaken by the Board to promote the benefits of using Welsh to the voluntary sector and businesses;
vii
relevant Welsh language schemes;
viii
work undertaken by the Board in anticipation of the establishment of the Commissioner’s office; and
ix
requests for information to which the Freedom of Information Act 2000 applies made to the Board regarding any of the matters described in Paragraphs (i) to (viii), above.
Interpretation
2
In this Part —
“relevant Board project” (“ prosiect Bwrdd perthnasol ”) means —
“Twf”;
“Mae dy Gymraeg di'n grêt”;
“Defnydd Cymdeithasol o'r Gymraeg gan bobl ifanc”;
“Cefnogi partneriaid cymunedol y Bwrdd”;
“Cefnogi'r Gymraeg mewn cymunedau sydd angen cymorth”; and
“Cerddoriaeth Gymraeg Gymunedol”;
“relevant Welsh language scheme” (“ cynllun iaith perthnasol ”) means any scheme prepared or adopted in accordance with Part 2 of the 1993 Act which is not a Welsh education scheme;
“request for information” (“ cais am wybodaeth ”) has the same meaning as in section 8 of the Freedom of Information Act 2000; and
“Welsh education scheme” (“ cynllun addysg Gymraeg ”) means any scheme prepared or adopted in accordance with Part 2 of the 1993 Act which deals only with the provision of Welsh medium education.
PART 2
Rights and Liabilities
3
Rights and liabilities arising in relation to —
a
any property transferring as a result of this Order to the Welsh Ministers;
b
any relevant Board project; and
c
any relevant grant agreement.
Interpretation
4
In this Part —
“relevant Board project” (“ prosiect Bwrdd perthnasol ”) has the same meaning as in Part 1; and
“relevant grant agreement” (“ cytundeb grant perthnasol ”) means any grant agreement entered into by the Board to promote and facilitate the use of Welsh that does not fall within any of the following categories of agreement —
agreements relating exclusively to the 'Estyn Llaw' project;
agreements with the Association of Welsh Translators and Interpreters;
agreements with Bangor University. |
The Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) (Amendment) Order 2012
The Secretary of State, in exercise of the powers conferred by section 128(2) of the Serious Organised Crime and Police Act 2005 , makes the following Order:
1
1
This Order may be cited as the Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) (Amendment) Order 2012 and shall come into force on 1st October 2012.
2
This Order extends to England and Wales only.
2
1
The Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) Order 2007 is amended as follows.
2
After article 2(11) insert —
12
So much of the site of Kensington Palace, Kensington Gardens, London W8 4PU, as is within the dotted line that is marked on the map in Schedule 11 (the Kensington Palace Site)
.
3
After Schedule 10 insert —
SCHEDULE 11
The Kensington Palace Site
Article 2(12)
Theresa May
Secretary of State
Home Office
5th July 2012 |
The Education (Exemption from School Inspection) (England) Regulations 2012
The Secretary of State for Education makes the following Regulations in exercise of the powers conferred by sections 5(4A) and 120(2)(a) of the Education Act 2005 .
Citation, commencement and application
1
1
These Regulations may be cited as the Education (Exemption from School Inspection) (England) Regulations 2012 and come into force on 8th June 2012.
2
These Regulations apply in relation to schools in England only.
Interpretation.
2
In these Regulations –
“the 2005 Act ” means the Education Act 2005; and
“the 2010 Act ” means the Academies Act 2010 .
Categories of school prescribed for the purposes of section 5(4A) of the 2005 Act
3
1
The categories of school that are prescribed for the purposes of section 5(4A) of the 2005 Act are those falling within the following subsections of section 5 of that Act —
a
subsection (2)(a) (community, foundation and voluntary schools);
b
subsection (2)(d) (Academy schools) subject to paragraph (2) of this regulation;
c
subsection (2)(e) (city technology colleges); and
d
subsection (2)(f) (city colleges for the technology of the arts).
2
An Academy school is not a prescribed category of school if it is an educational institution of the kind described in section 1A(2) of the 2010 Act .
Circumstances prescribed for the purposes of section 5(4A) of the 2005 Act
4
1
The circumstances prescribed for the purposes of section 5(4A) of the 2005 Act are the circumstances set out in paragraphs (2) and (3).
2
The school’s overall effectiveness was awarded the highest grade in the school’s most recent inspection under section 5 of the 2005 Act.
3
In the case of a school which is an Academy school that has not previously been inspected under section 5 of the 2005 Act and has a predecessor school —
a
its predecessor school’s overall effectiveness was awarded the highest grade in its last inspection under section 5; or
b
if that Academy school has two or more predecessor schools, each predecessor school’s overall effectiveness was awarded the highest grade in its last inspection under section 5.
4
In this regulation —
a
a reference to an inspection under section 5 of the 2005 Act includes a reference to an inspection under section 8 of that Act (other inspections) which has been treated by the Chief Inspector as an inspection under section 5 ; and
b
a reference to an Academy school’s “predecessor school” is a reference to —
i
the school that was discontinued and which that Academy school replaced; or
ii
the maintained school which converted into that Academy school in accordance with section 4 of the 2010 Act .
Nick Gibb
Minister of State
Department for Education
15th May 2012 |
The Forest Law Enforcement, Governance and Trade Regulations 2012
These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Secretary of State that it is expedient for any reference in these Regulations to any of the following EU instruments to be construed as a reference to that instrument as amended from time to time —
Council Regulation (EC) No 2173/2005 on the establishment of a FLEGT licensing scheme for imports of timber into the European Community , and
Commission Regulation (EC) No 1024/2008 laying down detailed measures for the implementation of Council Regulation (EC) No 2173/2005 .
Title, commencement and interpretation
1
1
These Regulations may be cited as the Forest Law Enforcement, Governance and Trade Regulations 2012.
2
They come into force on 20th February 2012.
3
In these Regulations —
“ the Act ” means the Customs and Excise Management Act 1979 ;
“the European Regulations ” means —
the FLEGT Regulation , and
Commission Regulation (EC) No 1024/2008 laying down detailed measures for the implementation of the FLEGT Regulation, as amended from time to time;
“the FLEGT Regulation” means Council Regulation (EC) No 2173/2005 on the establishment of a FLEGT licensing scheme for imports of timber into the European Community, as amended from time to time;
“general customs official” means a general customs official designated under section 3(1) of the Borders, Citizenship and Immigration Act 2009 ;
“premises” includes any vehicle, vessel, aircraft, hovercraft, tent or movable structure;
“wildlife inspector” has the meaning given in regulation 5.
4
Terms used in these Regulations that are also used in the European Regulations have the meaning they bear in those Regulations.
Competent authority
2
The Secretary of State is the competent authority for the purposes of the European Regulations.
General customs officials
3
At a place where goods are subject to customs supervision within the meaning of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code , the European Regulations are to be enforced by a general customs official.
Translation into English
4
A FLEGT licence covering a shipment must be made available to the Secretary of State in English.
Wildlife inspectors
5
The Secretary of State may authorise a person in writing to carry out inspections for the purposes of the European Regulations, and such a person is in these Regulations referred to as a “wildlife inspector”.
Powers of entry
6
1
A wildlife inspector may, on giving reasonable notice, enter premises at any reasonable hour, except premises used wholly or mainly as a private dwellinghouse, for the purpose of enforcing the European Regulations.
2
The requirement to give notice does not apply —
a
where reasonable efforts to agree an appointment have failed;
b
where a wildlife inspector reasonably believes that giving notice would defeat the object of the entry;
c
where a wildlife inspector has a reasonable suspicion of a breach of the European Regulations; or
d
in an emergency.
3
A wildlife inspector must, if requested to do so, produce a duly authenticated authorisation document.
4
Paragraph (6) applies where a justice of the peace is satisfied, on sworn information in writing —
a
that there are reasonable grounds for a constable to enter premises for the purpose of enforcing the European Regulations; and
b
that any of the conditions in paragraph (5) are met.
5
The conditions are —
a
entry to the premises has been, or is likely to be, refused, and notice of the intention to apply for a warrant has been given to the occupier;
b
asking for admission to the premises, or giving such a notice, would defeat the object of the entry;
c
entry is required urgently; or
d
the premises are unoccupied or the occupier is temporarily absent.
6
Where this paragraph applies, a justice of the peace may by signed warrant permit a constable to enter and search the premises in question, and seize any timber product on the premises, if necessary by reasonable force.
7
But the power in paragraph (6) does not extend to premises used wholly or mainly as a private dwellinghouse.
8
A warrant is valid for three months.
9
A constable entering premises under this regulation may —
a
be accompanied by —
i
such other persons as the constable considers necessary,
ii
any representative of the European Commission; and
b
bring on to the premises such equipment as the constable considers necessary.
10
A constable entering any premises which are unoccupied or from which the occupier is temporarily absent must leave them as effectively secured against unauthorised entry as they were before entry.
11
In this regulation —
a
in Scotland, a reference to a justice of the peace includes a sheriff, and the reference to sworn information in writing is a reference to evidence on oath; and
b
in Northern Ireland, a reference to a justice of the peace is a reference to a lay magistrate, and the reference to sworn information in writing is a reference to a sworn complaint in writing.
Further powers of wildlife inspectors
7
1
A wildlife inspector who has entered premises in exercise of a power under regulation 6 may, at any reasonable hour, exercise the following powers for the purpose of enforcing the European Regulations —
a
inspect the premises and any of the following items found on the premises —
i
any plant, machinery or equipment,
ii
any container,
iii
any timber product;
b
have access to, inspect and copy documents or records (in whatever form they are held), and remove them to enable them to be copied;
c
have access to, inspect and check the data on, and operation of, any computer and any associated apparatus used in connection with such documents or records, and require computer records to be produced in a form in which they may be taken away;
d
take samples of timber products;
e
carry out any examination, investigation or test; and
f
take photographs, measurements or recordings.
2
A wildlife inspector may require any person to provide such assistance or information as may be necessary to enable the inspector to exercise any of the powers conferred by regulation 6 or this regulation.
Obstruction of wildlife inspectors
8
Where a wildlife inspector exercises a power under these Regulations, it is an offence —
a
intentionally to obstruct an inspector;
b
without reasonable excuse, to fail to give to an inspector any information or assistance that the inspector may reasonably require;
c
knowingly to give false or misleading information to an inspector; or
d
without reasonable excuse, to fail to produce a record or document when reasonably required to do so by an inspector.
Seized timber products: recovery of costs
9
1
Paragraph (2) applies where, for the purpose of enforcing the European Regulations —
a
a timber product —
i
has been seized by a general customs official under section 139 of the Act, or
ii
has been seized by a constable under section 139 of the Act and delivered to a general customs official under subsection (2) of that section; or
b
a timber product has been seized by a constable (other than as mentioned in sub-paragraph (a)) in exercise of a power conferred by or by virtue of —
i
the Police and Criminal Evidence Act 1984 ,
ii
the Police and Criminal Evidence (Northern Ireland) Order 1989 ,
iii
a warrant granted under any other enactment (including these Regulations) or rule of law, or
iv
any other enactment, or any rule of law, under which the authority of a warrant is not required.
2
Where this paragraph applies, all costs relating to the holding and subsequent disposal of the timber product in question (including costs of removal, transport, storage, donation, sale or destruction) are recoverable as a debt from any person concerned in the importation of the timber product.
3
Such costs are recoverable by —
a
where paragraph (2) applies by virtue of paragraph (1)(a), a general customs official; or
b
where paragraph (2) applies by virtue of paragraph (1)(b), a constable.
4
In proceedings for an offence under the Act in connection with the restriction in Article 4(1) of the FLEGT Regulation, the court may make an order requiring any person concerned in the importation of the timber product in question to pay such of the costs mentioned in paragraph (2) as may be specified by the court.
Power to share information for enforcement purposes
10
1
The Commissioners for Her Majesty’s Revenue and Customs may disclose any information in their possession to the Secretary of State for the purpose of the enforcement of the European Regulations.
2
Paragraph (1) is without prejudice to any other power of the Commissioners to disclose information.
3
No person, including a servant of the Crown, may disclose any information received from the Commissioners under paragraph (1) if —
a
the information relates to a person whose identity is specified in the disclosure or can be deduced from the disclosure;
b
the disclosure is for a purpose other than specified in paragraph (1); and
c
the Commissioners have not given their prior consent to the disclosure.
4
A person who breaches paragraph (3) is guilty of an offence.
5
It is a defence for a person charged with an offence under paragraph (4) to prove that the person reasonably believed —
a
that the disclosure was lawful; or
b
that the information had already and lawfully been made available to the public.
Penalties
11
A person guilty of an offence under regulation 8 or 10(4) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Modification of penalties under the Act
12
In the case of an offence committed in connection with the restriction in Article 4(1) of the FLEGT Regulation, sections 50(4)(b) and 170(3)(b) of the Act have effect as if for “7 years” there were substituted “3 years”.
Review
13
1
The Secretary of State must from time to time —
a
carry out a review of these Regulations;
b
set out the conclusions of the review in a report; and
c
publish the report.
2
In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how the European Regulations are enforced in other member States.
3
The report must in particular —
a
set out the objectives intended to be achieved by these Regulations;
b
assess the extent to which those objectives are achieved; and
c
assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved in a less burdensome way.
4
The first report under this regulation must be published before the end of the period of five years beginning with 20th February 2012.
5
Reports under this regulation are afterwards to be published at intervals not exceeding five years.
Jim Paice
Minister of State
Department for Environment, Food and Rural Affairs
25th January 2012 |
The Pension Protection Fund and Occupational Pension Schemes (Levy Ceiling and Compensation Cap) Order 2012
On a review under section 148(2) of the Social Security Administration Act 1992 , the Secretary of State concluded that the general level of earnings obtaining in Great Britain exceeds by 2.5% the general level at the end of the period taken into account for the last such review under that section.
Citation, commencement and interpretation
1
1
This Order may be cited as the Pension Protection Fund and Occupational Pension Schemes (Levy Ceiling and Compensation Cap) Order 2012.
2
It comes into force —
a
for the purposes of this article and article 2, on 21st March 2012,
b
for the purposes of article 3, on 31st March 2012, and
c
for the purposes of articles 4 and 5, on 1st April 2012.
3
In this Order, “ the Act ” means the Pensions Act 2004.
The earnings percentage
2
For the purposes of section 178(3)(a) of the Act (the levy ceiling), the percentage by which it appears to the Secretary of State that the general level of earnings has increased during the review period is 3%.
The levy ceiling
3
For the purposes of section 177 of the Act (amounts to be raised by the pension protection levies), the levy ceiling for the financial year beginning on 1st April 2012 is £918,854,855.
The compensation cap
4
The amount specified for the purposes of paragraph (a) of the definition of “the compensation cap” in paragraph 26(7) of Schedule 7 to the Act (pension compensation provisions – compensation cap) is £34,049.84.
Revocations
5
The Orders specified in the Schedule are revoked.
Signed by authority of the Secretary of State for Work and Pensions.
Steve Webb
Minister of State,
Department for Work and Pensions
25th February 2012
SCHEDULE
Revocation Schedule
Article 5
Orders revoked References
The Occupational Pension Schemes (Levy Ceiling) Order 2011 S.I. 2011/841 The Pension Protection Fund (Pension Compensation Cap) Order 2011 S.I. 2011/840 The Occupational Pension Schemes (Levy Ceiling – Earnings Percentage Increase) Order 2011 S.I. 2011/169 The Occupational Pension Schemes (Levy Ceiling – Earnings Percentage Increase) Order 2010 S.I. 2010/1 The Occupational Pension Schemes (Levy Ceiling – Earnings Percentage Increase) Order 2009 S.I. 2009/200 The Occupational Pension Schemes (Levy Ceiling – Earnings Percentage Increase) Order 2008 S.I. 2008/217 The Occupational Pension Schemes (Levy Ceiling – Earnings Percentage Increase) Order 2006 S.I. 2006/3105 |
The Flood and Water Management Act 2010 (Commencement No. 7) Order 2012
The Secretary of State and the Welsh Ministers make the following Order.
Citation
1
This Order may be cited as the Flood and Water Management Act 2010 (Commencement No. 7) Order 2012.
Provisions coming into force on 1st August 2012
2
The following provisions of the Flood and Water Management Act 2010 come into force on 1st August 2012 —
a
section 30 (designation of features), so far as not already commenced; and
b
Schedule 1 (risk management: designation of features) so far as not already commenced.
Richard Benyon
Parliamentary Under Secretary of State
Department for Environment, Food and Rural Affairs
30th July 2012
John Griffiths
Minister for Environment and Sustainable Development
one of the Welsh Ministers
29th July 2012 |
The Inheritance Tax (Market Makers and Discount Houses) Regulations 2012
The Commissioners for Her Majesty’s Revenue and Customs make the following Regulations in exercise of powers conferred by sections 106(5) and 107(5) of the Finance Act 1986 and now exercisable by them .
Citation and commencement
1
These Regulations may be cited as the Inheritance Tax (Market Makers and Discount Houses) Regulations 2012 and come into force on 31st December 2012.
Application of these Regulations
2
The day specified for the purposes of sections 106(6) and 107(6) of the Finance Act 1986 for the application of these Regulations is 31st December 2012.
Amendment of the Inheritance Tax Act 1984
3
The Inheritance Tax Act 1984 is amended as follows.
4
In section 105 (relevant business property), after subsection (4) insert —
4A
Subsection (3) above also does not apply to any property if the business concerned is of a description set out in regulations under section 106(5) of the Finance Act 1986.
.
5
In section 234 (interest on instalments), for subsection (3)(c) substitute —
c
any company —
i
whose business is wholly that of a market maker or is that of a discount house and (in either case) is carried on in the United Kingdom, or
ii
which is of a description set out in regulations under section 107(5) of the Finance Act 1986.
.
Description for the purposes of sections 105(4A) and 234(3)(c)(ii) of the Inheritance Tax Act 1984
6
For the purposes of section 105(4A) of the Inheritance Tax Act 1984 the description of a business is a business in an EEA State other than the United Kingdom which —
a
holds itself out at all normal times, in compliance with the rules of a regulated market which has been notified to the European Commission, as willing to buy and sell securities, stocks and shares at a price specified by it, and
b
is recognised as doing so by that regulated market.
7
For the purposes of section 234(3)(c)(ii) of the Inheritance Tax Act 1984 the description of a company is a company in an EEA State other than the United Kingdom which —
a
holds itself out at all normal times, in compliance with the rules of a regulated market which has been notified to the European Commission, as willing to buy and sell securities, stocks and shares at a price specified by it, and
b
is recognised as doing so by that regulated market.
Ruth Owen
Jim Harra
Two of Her Majesty’s Commissioners for Revenue and Customs
19th November 2012 |
The Scallop Fishing (England) Order 2012
The Secretary of State, in exercise of the powers conferred by section 1(3) of the Sea Fish (Conservation) Act 1967 and the Secretary of State for Environment, Food and Rural Affairs and the Secretary of State concerned with the sea fishing industry in Northern Ireland, in exercise of powers conferred by sections 3(1) , (4) and 20(1) of that Act, and now vested in them , make the following Order.
Citation, commencement and application
1
1
This Order may be cited as the Scallop Fishing (England) Order 2012 and comes into force on 1st October 2012.
2
This Order applies in England and within British fishery limits.
3
But British fishery limits do not include —
a
the Northern Ireland zone (within the meaning of section 98(1) of the Northern Ireland Act 1998 );
b
the Scottish zone (within the meaning of section 126(1) & (2) of the Scotland Act 1998 );
c
the Welsh zone (within the meaning of section 158(1) of the Government of Wales Act 2006 ); or
d
the territorial sea adjacent to the Isle of Man, Jersey or Guernsey.
Interpretation
2
1
In this Order —
“baselines” has the same meaning as in the Territorial Sea Act 1987 ;
“British fishing boat” means a fishing boat which is either registered in the United Kingdom under Part II of the Merchant Shipping Act 1995 or is owned wholly by persons qualified to own British ships for the purposes of that Part of that Act;
“scallop” means a shellfish of the species Pecten maximus ;
“scallop dredge” means any appliance with a rigid framed mouth which is towed through the water and is manufactured, adapted, used or intended for use for the purpose of fishing for scallops.
2
For the purposes of this Order, a reference to a specified “ ICES division” is a reference to a statistical division of the International Council for the Exploration of the Sea set out in the Schedule.
Specification of scallop dredges
3
1
No British fishing boat may carry or tow a scallop dredge within British fishery limits unless the dredge conforms to the following specifications.
2
It must —
a
include a functioning, operational and moveable spring-loaded tooth bar and belly bar;
b
not have any part of its frame that exceeds 85 centimetres in width;
c
not contain any attachments;
d
not contain a diving plate or any other similar device;
e
not exceed 150 kilograms in weight including all fittings;
f
not contain more than 1 row of belly rings hanging from either side of the dredge perpendicular to the rings which hang from the belly bar.
3
If the dredge measures 80 centimetres or more in width, it must not have —
a
more than 8 rows of belly rings hanging from the belly bar;
b
more than —
i
9 teeth on the tooth bar, if —
aa
the fishing boat in question is outside the relevant area; or
bb
each tooth measures 12 millimetres or less; or
ii
8 teeth on the tooth bar, if —
aa
the fishing boat in question is inside the relevant area; and
bb
any tooth measures more than 12 millimetres.
4
If the dredge measures less than 80 centimetres in width, it must not have —
a
more than 6 rows of belly rings hanging from the belly bar; or
b
more than 6 teeth on the tooth bar.
5
Each tooth on the tooth bar must measure no more than —
a
22 millimetres if the dredge measures 80 centimetres or more in width; or
b
12 millimetres if the dredge measures less than 80 centimetres in width.
6
For the purposes of this article —
a
the size of the tooth on a tooth bar is its maximum width measured in the direction of the line of the tooth bar; and
b
belly rings and the fastenings that attach the belly rings to each other and to the frame are not attachments.
7
In this article —
“attachment” means anything that is fitted to the scallop dredge (other than something that is used solely to aid the lifting and emptying of the dredge and which in no way obstructs the belly rings or any netting);
“belly bar” means the bar attached to the frame of a scallop dredge which runs parallel to the tooth bar and from which most of the belly rings ultimately hang;
“row of belly rings” means a line of single interconnecting rings, where the ring at one end of the line hangs either from the belly bar or from the main structure of the dredge perpendicular to the belly bar;
“the relevant area” means that part of ICES division VIIa which is north of the line 52° 30′N but outside the Scottish zone, and all of ICES division VIId;
“tooth bar” means the bar to which are attached teeth, the ends of which point downwards and are dragged along the sea bed when the dredge is towed.
Restrictions on number of scallop dredges
4
No British fishing boat may tow at any one time more than 8 scallop dredges from each side of the boat when in waters adjacent to England out to a line drawn 12 nautical miles from baselines.
Carriage of undersized scallops
5
1
For the purposes of section 1(3) of the Sea Fish (Conservation) Act 1967, scallops measuring less than 110 millimetres may not be carried by a British fishing boat that has fished in both ICES division VIId and ICES division VIIe during a single fishing trip.
2
In this article, “single fishing trip” means the time from when a fishing boat departs from a port to the time when it returns to a port.
3
For the purposes of this article, the size of a scallop is measurable in accordance with paragraph 6 of Annex XIII to Council Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juvenile marine organisms.
Revocation
6
The Scallop Fishing Order 2004 is revoked.
Richard Benyon
Parliamentary Under Secretary of State
Department for Environment, Food and Rural Affairs
Date 5th September 2012
Owen Paterson
Secretary of State for Northern Ireland
Northern Ireland Office
Date 3rd September 2012
SCHEDULE
Divisions of the International Council for the Exploration of the Sea
Article 2(2)
ICES division VIIa (Irish Sea)
The waters bounded by a line beginning at a point on the west coast of Scotland at 55° 00′ north latitude then due west to the coast of Northern Ireland; then in a southerly direction along the coasts of Northern Ireland and Ireland to a point on the south-east coast of Ireland at 52° 00′ north latitude; then due east to the coast of Wales; then in a north-easterly and northerly direction along the coasts of Wales, England and Scotland to the point of the beginning.
ICES division VIId (Eastern Channel)
The waters bounded by a line beginning at a point on the west coast of France at 51° 00′ north latitude; then due west to the coast of England; then in a westerly direction along the south coast of England to 2° 00′ west longitude; then south to the coast of France at Cap de la Hague; then in a north-easterly direction along the coast of France to the point of the beginning.
ICES division VIIe (Western Channel)
The waters bounded by a line beginning at a point on the south coast of England at 2° 00′ west; then in a southerly and westerly direction along the coast of England to a point on the south-west coast at 50° 00′ north; then due west to 7° 00′ west; then due south to 49° 30′ north; then due east to 5° 00′ west; then due south to 48° 00′ north; then due east to the coast of France; then in a northerly and north-easterly direction along the coast of France to Cap de la Hague; then due north to the point of the beginning. |
The Food Additives (England) (Amendment) and the Extraction Solvents in Food (Amendment) (England) Regulations 2012
As required by Article 9 of Regulation ( EC ) No. 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety , there has been open and transparent public consultation during the preparation and evaluation of these Regulations.
Title application and commencement
1
These Regulations may be cited as the Food Additives (England) (Amendment) and the Extraction Solvents in Food (Amendment) (England) Regulations 2012, apply in relation to England only and come into force on 23rd May 2012.
Amendment of the Food Additives (England) Regulations 2009
2
1
The Food Additives (England) Regulations 2009 are amended in accordance with paragraphs (2) to (5).
2
In paragraph (1) of regulation 2 (interpretation) —
a
for the definition of “permitted colour” substitute the following definition —
“permitted colour” means —
before 1st December 2012, any colour listed in Annex I to Directive 94/36 which satisfies the specific purity criteria for that colour set out in the Annex to Directive 08/128;
on or after 1st December 2012, any colour listed in Annex I to Directive 94/36 which satisfies the specific purity criteria for that colour set out in the Annex to Regulation 231/2012;
;
b
for the definition of “permitted sweetener” substitute the following definition —
“permitted sweetener” means —
before 1st December 2012 —
any sweetener specified in the second column of the Annex to Directive 94/35 which satisfies the specific purity criteria for that sweetener set out in Annex I to Directive 08/60, or
in the case of E960 steviol glycosides, a sweetener which satisfies the purity criteria for that sweetener set out in the Annex to Regulation 231/2012;
on or after 1st December 2012 —
any sweetener specified in the second column of the Annex to Directive 94/35, or
E960 steviol glycosides
which satisfies the specific purity criteria for that sweetener set out in the Annex to Regulation 231/2012;
;
c
for the definition of “purity criteria” substitute the following definition —
“purity criteria”, in relation to a miscellaneous additive, means —
before 1st December 2012, the purity criteria set out in relation to that additive in Annex I to Directive 08/84 or, in the case of E1205 basic methacrylate copolymer, in the Annex to Regulation 231/2012;
on or after 1st December 2012, the purity criteria set out in relation to that additive in the Annex to Regulation 231/2012;
;
d
at the end of the definition of “Regulation 1333/2008” insert “as read with Regulation 231/2012 ”; and
e
after the definition of “Regulation 1333/2008” insert the following definitions —
“Regulation 1129/2011” means Commission Regulation (EU) No. 1129/2011 amending Annex II to Regulation (EC) No. 1333/2008 of the European Parliament and of the Council by establishing a Union list of food additives, as read with Commission Regulation (EU) No. 1131/2011 amending Annex II to Regulation (EC) No. 1333/2008 of the European Parliament and of the Council with regard to steviol glycosides;
“Regulation 1130/2011” means Commission Regulation (EU) No. 1130/2011 amending Annex III to Regulation (EC) No. 1333/2008 of the European Parliament and of the Council on food additives by establishing a Union list of food additives approved for use in food additives, food enzymes, food flavourings and nutrients;
“Regulation 231/2012” means Commission Regulation (EU) No. 231/2012 laying down specifications for food additives listed in Annexes II and III to Regulation (EC) No 1333/2008 of the European Parliament and of the Council;
.
3
For paragraph (6) of regulation 2, substitute the following —
6
The EU instruments are Directive 94/35, Directive 95/2, Regulation 1333/2008 and Regulation 231/2012.
.
4
In regulation 14 (offences and penalties) —
a
in paragraph (2), after the expression “Article 34 of Regulation 1333/2008,” add “Article 2 of Regulation 1129/2011 and Article 2 of Regulation 1130/2011,”; and
b
omit sub-paragraphs (2)(b) and (2)(c).
5
In the table in the Schedule (specified Regulation 1333/2008 provisions), immediately after the entries relating to Article 4.1 insert the following entries —
Article 4.2 (as read with Articles 12, 13.2 and 18.3) Requirement that only food additives included in the list in Annex III to Regulation 1333/2008 may be used in food additives, food enzymes, food flavourings and nutrients and under the conditions of use specified in that Annex.
Amendment of the Extraction Solvents in Food Regulations 1993
3
1
The Extraction Solvents in Food Regulations 1993 are amended in relation to England in accordance with paragraph (2).
2
In Schedule 1 Part I (permitted extraction solvents) as entry number 22 in Column 1 add “Dimethyl ether”.
Statutory review
4
1
The Food Standards Agency must from time to time —
a
carry out a review of the operation and effect of regulation 2;
b
set out the conclusions of the review in a report; and
c
publish the report.
2
In carrying out the review the Agency must, so far as is reasonable, have regard to how Regulation (EC) No. 1333/2008 of the European Parliament and of the Council on food additives is executed and enforced in other Member States.
3
The report must in particular —
a
set out the objectives intended to be achieved by the regulatory system established by the Food Additives (England) Regulations 2009 as they have been amended by these Regulations;
b
assess the extent to which those objectives are achieved; and
c
assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
4
The first report under this regulation must be published before the end of the period of five years beginning with the day on which these Regulations come into force.
5
Reports under this regulation are afterwards to be published at intervals not exceeding five years.
Signed by authority of the Secretary of State for Health.
Anne Milton
Parliamentary Under-Secretary of State,
Department of Health
25th April 2012 |
The Welfare Reform Act 2012 (Commencement No. 2) (Amendment) Order 2012
The Secretary of State for Work and Pensions makes the following Order in exercise of the powers conferred by section 150(3) of the Welfare Reform Act 2012 .
Citation
1
This Order may be cited as the Welfare Reform Act 2012 (Commencement No. 2) (Amendment) Order 2012.
Amendment of appointed day
2
In article 2(2) of the Welfare Reform Act 2012 (Commencement No. 2) Order 2012 , for “sections 122 to 125” substitute “sections 122, 123 and 125”
Signed by authority of the Secretary of State for Work and Pensions.
Freud,
Parliamentary Under-Secretary of State,
Department for Work and Pensions
31st May 2012 |
The Planning Act 2008 (Commencement No. 2) (England) Order 2012
The Secretary of State, in exercise of the powers conferred by sections 241(3) and (8) of the Planning Act 2008 , makes the following Order:
Citation and interpretation
1
1
This Order may be cited as the Planning Act 2008 (Commencement No.2) (England) Order 2012.
2
In this Order, “ the Act ” means the Planning Act 2008.
Provisions coming into force on 6th April 2012 in relation to England
2
The following provisions of the Act (so far as they are not yet in force) shall come into force, in relation to England, on 6th April 2012 —
a
sections 192 and Schedule 8;
b
section 193; and
c
section 238 and Schedule 13, so far as they give effect to the repeals specified in the Schedule to this Order.
Signed by authority of the Secretary of State for Communities and Local Government
Bob Neill
Parliamentary Under Secretary of State
Department for Communities and Local Government
28th February 2012
SCHEDULE
Repeals (England)
Article 2
Reference Extent of repeal
Forestry Act 1967 (c.10) In paragraph 2 of Schedule 3, the words from “section 77” to “(for Scotland)”, and “the said section 77 or (for Scotland)”.
Town and Country Planning Act 1990 (c.8)
Section 198(3), (4), (6), (8) and (9).
Section 199.
Section 201.
Section 202(3).
Sections 203 to 205.
Section 212(4).
In Schedule 1, paragraph 17.
Planning and Compensation Act 1991 (c.34) In Schedule 18, in Part 1, the entries for sections 203 and 204 of the Town and Country Planning Act 1990.
Planning and Compulsory Purchase Act 2004 (c.5) Section 42(3) |
The Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Regulations 2012
In accordance with section 56(3)(g), (h), (i), (j), (l), (m) and (r) of that Act, the Secretary of State has consulted the Welsh Ministers.
Citation, commencement, interpretation and extent
1
1
These Regulations may be cited as the Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Regulations 2012.
2
Subject to paragraph (3), these Regulations shall come into force on 10th September 2012.
3
Regulations 7 to 9 and 24 to 28 shall come into force on 10th September 2012 immediately after the commencement of section 66 of the Protection of Freedoms Act 2012 .
4
In these Regulations “the 2006 Act ” means the Safeguarding Vulnerable Groups Act 2006.
5
These Regulations extend to England and Wales.
Amendment of the Safeguarding Vulnerable Groups Act 2006 (Barred List Prescribed Information) Regulations 2008
2
The Safeguarding Vulnerable Groups Act 2006 (Barred List Prescribed Information) Regulations 2008 are amended as follows.
3
In regulation 1(2) omit the definition of the “unique identification number accorded to the monitoring application or referral”.
4
In regulation 1(2) for the definition of the “Criminal Records Bureau disclosure number” substitute ““the criminal record certificate number” means the number relating to any criminal record certificate within the meaning of section 113A of the Police Act 1997 or any enhanced criminal record certificate within the meaning of section 113B of the Police Act 1997.”
5
Omit regulation 3(d) and (e).
6
For regulation 3(g) substitute —
g
the criminal record certificate number relating to the individual;
7
In regulation 4(c) for “duty”, in each place where it occurs, substitute “power”.
Amendment of the Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008
8
The Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 are amended as follows.
9
In regulation 2 —
a
in paragraph (1) omit “removal from, or”;
b
in paragraph (5) omit “removal from, or”.
Amendment of the Safeguarding Vulnerable Groups Act 2006 (Prescribed Information) Regulations 2008
10
The Safeguarding Vulnerable Groups Act 2006 (Prescribed Information) Regulations 2008 are amended as follows.
11
In regulation 2(1) in the definition of “employment” omit “or controlled”.
12
In regulation 3 —
a
omit “and responsible persons” in the heading;
b
omit “and (b)”.
13
In regulation 4(2)(e) omit “or controlled activity”.
14
In regulation 4(2)(f)(i), (h) and (i) omit “or controlled”.
15
In regulation 5(1) omit “and (b)”.
16
Omit regulations 6, 8 and 10.
17
In paragraph 1 of the Schedule —
a
at the end of sub-paragraph (e) insert “and”;
b
in sub-paragraph (f) omit “; and”;
c
omit sub-paragraph (g).
18
In paragraph 2 of the Schedule omit “or controlled”.
19
In paragraph 4(h) of the Schedule omit “or controlled”.
20
In paragraph 6 of the Schedule for “35, 36, 39, 41 or 45” substitute “35 or 36”.
21
In paragraph 9 of the Schedule after “such proceedings” insert “, and including proceedings commenced under the Children Act 1989”.
Amendment of the Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Regulations 2009
22
The Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Regulations 2009 are amended as follows.
23
Omit regulations 2 and 4.
Regulated activity relating to vulnerable adults
24
Subject to regulation 26, the conveying of adults who need to be conveyed by reason of age, illness or disability by the following persons in the course of their employment is regulated activity relating to vulnerable adults under paragraph 7(1)(f) of Schedule 4 to the 2006 Act —
a
any person who is employed as a hospital porter;
b
any person who is employed as an emergency care assistant;
c
any person who is employed as an ambulance technician;
d
any driver who is employed in the Patient Transport Service or a person who is employed to assist that driver in carrying out the conveying.
25
Subject to regulation 26, the conveying, or assistance provided in the conveying, of any adult who needs to be conveyed by reason of age, illness or disability is regulated activity relating to vulnerable adults under paragraph 7(1)(f) of Schedule 4 to the 2006 Act in the following circumstances —
a
the conveying is on behalf of an organisation, whether or not the person who does, or assists in, such conveying is employed by that organisation;
b
the conveying is to or from a place in which the adult will receive, or has received, health care (as defined in paragraph 7(2) of Schedule 4 to the 2006 Act ), relevant personal care (as defined in paragraph 7(3B) of Schedule 4 to the 2006 Act ) or relevant social work (as defined in paragraph 7(3C) of Schedule 4 to the 2006 Act ); and
c
the person does, or assists in, such conveying for the purpose of enabling the adult to receive that health care, relevant personal care or relevant social work (as the case may be).
26
Regulations 24 and 25 do not apply to any person who does, or assists in, such conveying in a vehicle which is licensed under —
a
section 37 of the Town Police Clauses Act 1847 ;
b
section 6 of the Metropolitan Public Carriage Act 1869 ;
c
section 48 of the Local Government (Miscellaneous Provisions) Act 1976 ;
d
section 7 of the Private Hire Vehicles (London) Act 1998 ; or
e
an equivalent provision of a local enactment.
27
The provision of psychotherapy or counselling, but not life coaching, to an adult which is related to health care the adult is receiving from, or under the direction or supervision of, a health care professional as defined in paragraph 7(3) of Schedule 4 to the 2006 Act is regulated activity relating to vulnerable adults under paragraph 7(1)(g) of Schedule 4 to the 2006 Act.
Provision of information to the police: prescribed purposes
28
The disclosure of information by the relevant chief officer under section 113B(4) of the Police Act 1997 is prescribed under section 50A(1)(d) of the 2006 Act.
James Brokenshire
Parliamentary Under-Secretary of State
Home Office
14th August 2012 |
The Police Pensions (Amendment No. 2) Regulations 2012
In accordance with section 1(1) of the Act, the Treasury have consented to the making of these Regulations and the Secretary of State has consulted with the Police Negotiating Board for the United Kingdom .
Citation, commencement and extent
1
1
These Regulations may be cited as the Police Pensions (Amendment No. 2) Regulations 2012.
2
These Regulations come into force on 3rd December 2012.
3
These Regulations extend to England and Wales.
Interpretation
2
In these Regulations —
“the 1987 Regulations ” means the Police Pensions Regulations 1987 ;
“the 2006 Regulations ” means the Police Pensions Regulations 2006 .
Compulsory retirement on grounds of efficiency: relevant considerations
3
1
In regulation A19 of the 1987 Regulations (compulsory retirement on grounds of efficiency of the force), after paragraph (2) insert —
3
In making a determination under paragraph (2), a police pension authority shall take account of —
a
the desirability of retaining in the force regular policemen who possess skills or knowledge of particular importance; and
b
the standard or level to which the regular policeman in question has performed the duties of his rank or role.
.
2
In regulation 20 of the 2006 Regulations (compulsory retirement on grounds of efficiency of the force), after paragraph (2) insert —
2A
In making a determination under paragraph (2), a police pension authority shall take account of —
a
the desirability of retaining in the force regular policemen who possess skills or knowledge of particular importance; and
b
the standard or level to which the regular policeman in question has performed the duties of his rank or role.
.
Senior officers: delayed payment of ordinary pension
4
1
The 1987 Regulations are amended as follows.
2
In regulation B1 (policeman’s ordinary pension) —
a
in paragraph (5), omit the words after “of that Schedule”;
b
after paragraph (5) insert —
5A
In the case of a person entitled to reckon less than 30 years’ pensionable service, no payments shall be made on account of an ordinary pension in respect of the period (if any) after his retirement and before he has attained the age of 50 years or, if he sooner becomes permanently disabled and he is not ineligible under regulations G7 and G8 for a pension award payable on the grounds of permanent disablement, before he becomes so disabled.
5B
In the case of a regular policeman above the rank of chief superintendant who gives notice in writing to the police pension authority that he wishes this paragraph to apply to him, no payments shall be made on account of an ordinary pension in respect of the period after his retirement and before he has attained the normal minimum pension age, as defined in section 279(1) of the Finance Act 2004 .
5C
Notice under paragraph (5B) may not be given after retirement and, once given, may not be cancelled.
;
c
in paragraph (7), for “and (5)” substitute “, (5) and (5A)”.
3
In regulation L3(1)(a) (payment and duration of awards), for “B1(5)” substitute “B1(5A)”.
4
In paragraph 1(3)(a) of Part I of Schedule C, for “”B1(5)” substitute “B1(5A) and (5B)”.
5
In Part I of Schedule D —
a
in paragraph 1(5)(b)(i), for “B1(5)” substitute “B1(5A) and (5B)”;
b
in paragraph 3(2)(a), for “B1(5)” substitute “B1(5A) and (5B)”.
6
In Schedule J —
a
in Part I, for paragraph 2 substitute —
2
In the case of a regular policeman who served as such before 8th August 1961, Regulation B1 shall have effect as if paragraph (5A) were omitted.
;
b
in Part IV, in paragraph 8(1C)(a), after “(5)” insert “, (5A)”;
c
in Part VII, in paragraph 5(4)(b)(ii), for “(5)” substitute “(5A)”.
Damian Green
Minister of State
Home Office
29th October 2012
We consent
Anne Milton
Desmond Swayne
Two of the Lords Commissioners of Her Majesty’s Treasury
6th November 2012 |
The Police (Descriptions of Service) Order 2012
In accordance with section 63(3) of the Police Act 1996 , the Secretary of State supplied a draft of this Order to the Police Advisory Board for England and Wales and took their representations into consideration before the Order was made.
Citation, commencement and extent
1
1
This Order may be cited as the Police (Descriptions of Service) Order 2012.
2
This Order comes into force on 21st December 2012.
3
This Order extends to England and Wales.
Amendments to the Police Pensions Act 1976
2
1
The Police Pensions Act 1976 is amended as follows.
2
In section 7(2) (persons eligible for police pensions) after paragraph (d) insert —
e
a person serving as a senior NCA officer;
f
a person serving as Chief Executive of the body known as the College of Policing;
.
3
In section 11 (interpretation) —
a
in subsection (1) (references to membership of a police force etc ), at the end insert —
d
service as a senior NCA officer;
e
service as Chief Executive of the body known as the College of Policing.
;
b
in subsection (2A)(b) (identity of police pension authority and pension supervising authority), for “or (c)” substitute “, (c) or (d)”;
c
at the end of subsection (2A) insert —
i
in relation to any service such as is mentioned in subsection (1)(e) or any service of the kind described in section 97(1)(i) of the Police Act 1996, “police pension authority” or “pension supervising authority” means the body known as the College of Policing.
;
d
in subsection (3) (meaning of “police force”) —
i
in paragraph (b), for “or (c)” substitute “(c), (d) or (e)”;
ii
after “service such as is mentioned in subsection (1)(bh)” insert “or (d)”;
e
in subsection (5), after the definition of “pension rights” insert —
“senior NCA officer” means —
the Director General and Deputy Director General of the body known as the National Crime Agency;
the officers of that body who report directly to the Director General or Deputy Director General; and
the Head of the National Cyber Crime Unit in that body;
;
f
After subsection (8) insert —
8A
References in this Act to a senior NCA officer or the Chief Executive of the body known as the College of Policing, and to service as such, have effect only in relation to cases where the person in question is (immediately before beginning that service) a member, or eligible to be a member, of a pension scheme provided for under section 1 above or section 25(2)(k) or 26(2)(g) of the Police (Northern Ireland) Act 1998 .
.
Amendments to the Police Act 1996
3
1
Section 97 of the Police Act 1996 (police officers engaged on service outside their force) is amended as follows.
2
In subsection (1) (relevant service), at the end insert —
i
temporary service with the body known as the College of Policing on which a person is engaged with the consent of the appropriate authority;
.
3
In subsection (6) (discipline), in paragraph (a), for “or (h)” substitute “, (h) or (i),”.
4
In subsection (8) (office of constable etc), for “or (d)” substitute “, (d) or (i)”.
Amendments to the Police Pensions Regulations 1987
4
1
Schedule A to the Police Pensions Regulations 1987 (glossary of expressions) is amended as follows .
2
In the definition of “member of a police force”, after sub-paragraph (g) insert —
h
a senior NCA officer;
i
the chief executive of the body known as the College of Policing;
.
3
In the definition of “regular policeman”, after sub-paragraph (f) insert —
g
a senior NCA officer;
h
the chief executive of the body known as the College of Policing;
.
4
After the definition of “secured portion” and “unsecured portion”, insert —
“senior NCA officer” means —
the Director General and Deputy Director General of the body known as the National Crime Agency;
the officers of that body who report directly to the Director General or Deputy Director General; and
the Head of the National Cyber Crime Unit in that body;
.
Jeremy Browne
Minister of State
Home Office
26th November 2012 |
The Public Bodies (Abolition of Environment Protection Advisory Committees) Order 2012
Citation and commencement
1
1
This Order may be cited as the Public Bodies (Abolition of Environment Protection Advisory Committees) Order 2012.
2
Article 2 comes into force on the day after the day on which this Order is made.
3
Article 3 comes into force on the day after article 2 comes into force.
Abolition of Environment Protection Advisory Committees
2
1
The Environment Protection Advisory Committees established under section 12 of the Environment Act 1995 are abolished, except the one established pursuant to subsection (6) of that section (“the Welsh Environment Protection Advisory Committee”).
2
The duties of the Environment Agency under subsection (1) of that section cease to have effect, except in relation to the Welsh Environment Protection Advisory Committee.
Repeal in relation to the Public Bodies Act 2011
3
In Schedule 1 to the Public Bodies Act 2011, the entry relating to Environment Protection Advisory Committees is repealed.
Richard Benyon
Parliamentary Under Secretary of State
Department for Environment, Food and Rural Affairs
18th September 2012 |
The Welsh Language Schemes (Public Bodies) Order 2012
Now, therefore, the Welsh Ministers, in exercise of the powers conferred on the Secretary of State by section 6(1)(o) of the Welsh Language Act 1993 and now vested in them hereby make the following Order:
Title and commencement
1
The title of this Order is the Welsh Language Schemes (Public Bodies) Order 2012 and it comes into force on 4 January 2013.
Specification of Public Body
2
The Natural Resources Body for Wales is specified for the purposes of Part II of the Welsh Language Act 1993.
Leighton Andrews
Minister for Education and Skills, one of the Welsh Ministers
13 December 2012 |
The Textile Products (Labelling and Fibre Composition) Regulations 2012
The Secretary of State makes these Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and by paragraph 1A of Schedule 2 to that Act .
Citation and commencement
1
These Regulations may be cited as the Textile Products (Labelling and Fibre Composition) Regulations 2012 and they come into force on 8th May 2012.
Revocation and transitional provision
2
1
The Regulations in Schedule 1 are revoked.
2
An offence will not be committed under regulation 5 in respect of a product which —
a
was placed on the market in the United Kingdom before 8th May 2012,
b
continues to be made available on the market in the United Kingdom until 9th November 2014, and
c
complies with the Regulations listed in Schedule 1.
Interpretation
3
1
In these Regulations —
“business” includes a trade, craft or profession;
“enforcement authority” means a local weights and measures authority in Great Britain (within the meaning of section 69 of the Weights and Measures Act 1985 ) and the Department of Enterprise, Trade and Investment in Northern Ireland;
“ EU Regulation ” means Regulation (EU) No 1007/2011 of the European Parliament and of the Council of 27th September 2011 on textile fibre names and related labelling and marking of the fibre composition of textile products and repealing Council Directive 73/44/EEC and Directives 96/73/EC and 2008/121/EC of the European Parliament and of the Council and a reference in these Regulations to Annex I and Annexes III to IX to that EU Regulation is to be construed as a reference to those Annexes as amended from time to time.
“product” means any textile product (defined in Article 3(1)(a) of the EU Regulation) and includes the products listed in Article 2(2) of the EU Regulation.
2
Any expression used both in these Regulations and in the EU Regulation has the meaning that it bears in the EU Regulation.
Market surveillance of the EU Regulation
4
1
An enforcement authority is a market surveillance authority for the purposes of the EU Regulation.
2
The market surveillance checks to be carried out by a market surveillance authority, referred to in Article 18 of the EU Regulation, are to be carried out in accordance with Articles 19 and 20 and Annexes VII , VIII and IX to the EU Regulation.
Offence
5
1
A person who makes a product available on the market in the United Kingdom in breach of one or more of the provisions of the EU Regulation described in Schedule 2, is guilty of an offence.
2
Paragraph 1 does not apply to —
a
persons described in Article 2(3) of the EU Regulation (persons working in their homes, to whom products are contracted out or independent firms that carry out work from materials supplied without property being transferred for consideration),
b
persons described in Article 2(4) of the EU Regulation (self employed tailors making up customised products).
Penalty for offences
6
A person guilty of an offence under regulation 5 is liable —
a
on summary conviction, to a fine not exceeding the statutory maximum; or
b
on conviction on indictment, to a fine.
Time limit for prosecutions
7
1
No proceedings for an offence under these Regulations are to be commenced after —
a
the end of the period of three years beginning with the date of the commission of the offence; or
b
the end of the period of one year beginning with the date of discovery of the offence by the prosecutor,
whichever is earlier.
2
For the purpose of paragraph 1(b), a certificate signed by or on behalf of the prosecutor and stating the date on which the offence was discovered by the prosecutor is to be conclusive evidence of that fact and a certificate stating that matter and purporting to be so signed is to be treated as so signed unless the contrary is proved.
3
Notwithstanding anything in section 127(1) of the Magistrates’ Courts Act 1980 (limitation of time), an information relating to an offence under these Regulations which is triable by a magistrates’ court in England and Wales may be so tried if it is laid at any time before the end of the period of twelve months beginning with the date of the commission of the offence.
4
Notwithstanding anything in section 136 of the Criminal Procedure (Scotland) Act 1995 (time limit for certain offences) summary proceedings in Scotland for an offence under these Regulations may be commenced at any time before the end of the period of twelve months beginning with the date of the commission of the offence.
5
For the purposes of paragraph (4) section 136(3) of the Criminal Procedure (Scotland) Act 1995 shall apply as it applies for the purposes of that subsection.
6
Notwithstanding anything in Article 19(1) of the Magistrates’ Courts (Northern Ireland) Order 1981 (time within which complaint charging offence must be made to give jurisdiction), a complaint charging an offence under these Regulations which is triable by a magistrates court in Northern Ireland may be so tried if it is made at any time before the end of the period of twelve months beginning with the date of the commission of the offence.
Offences committed by bodies of persons
8
1
Where an offence under these Regulations committed by a body corporate is proved —
a
to have been committed with the consent or connivance of an officer of the body, or
b
to be attributable to any neglect on his part,
the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
2
In paragraph (1) a reference to an officer of a body corporate includes a reference to —
a
a director, manager, secretary or other similar officer; and
b
a person purporting to act as a director, manager, secretary or other similar officer.
3
Where an offence under these Regulations committed by a Scottish partnership is proved —
a
to have been committed with the consent or connivance of a partner, or
b
to be attributable to any neglect on his part,
the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.
4
In paragraph (3) a reference to a partner includes a person purporting to act as a partner.
Offence due to fault of another person
9
1
This regulation applies where a person “X” —
a
commits an offence under regulation 5, or
b
would have committed an offence under that regulation but for the defence under regulation 10,
and the commission of the offence, or of what would have been an offence but for X being able to rely on a defence under regulation 10, is due to the act or default of some other person “Y”.
2
Where this regulation applies Y is guilty of the offence, subject to regulation 10.
3
Y may be charged with and convicted of the offence by virtue of paragraph (2) whether or not proceedings are taken against X.
Due diligence defence
10
1
In any proceedings against a person for an offence under regulation 5 it is a defence for that person to prove —
a
that the commission of the offence was due to —
i
a mistake;
ii
reliance on information supplied to him by another person;
iii
the act or default of another person;
iv
an accident; or
v
another cause beyond his control; and
b
that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control.
2
A person shall not be entitled to rely on the defence provided by paragraph (1) by reason of the matters referred to in paragraph (ii) or (iii) of paragraph (1)(a) without leave of the court unless —
a
he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was in his possession; and
b
the notice is served on the prosecutor at least seven clear days before the date of the hearing.
Duty to enforce
11
1
It shall be the duty of every enforcement authority to enforce the EU Regulation or these Regulations.
2
Where the enforcement authority is a local weights and measures authority the duty to enforce applies to the enforcement of the EU Regulation or these Regulations within the authority’s area.
3
Where the enforcement authority is the Department of Enterprise, Trade and Investment in Northern Ireland the duty to enforce applies to the enforcement of the EU Regulation or these Regulations within Northern Ireland.
4
Nothing in this regulation authorises any enforcement authority to bring proceedings in Scotland for an offence.
Power to make test purchases
12
An enforcement authority may or may authorise any of its officers on its behalf to —
a
make a purchase of a product, or
b
enter into an agreement to secure the provision of a product,
for the purposes of determining whether the EU Regulation or these Regulations are being complied with.
Power of entry and investigation, etc
13
1
A duly authorised officer of an enforcement authority may at all reasonable hours and on giving reasonable notice, exercise the following powers —
a
for the purposes of ascertaining whether a breach of the EU Regulation or these Regulations has been committed, the officer may inspect any products and enter any premises other than premises used wholly or mainly as a private dwelling house;
b
if the officer has reasonable cause to suspect that a breach of the EU Regulation or these Regulations has been committed, he may, for the purpose of ascertaining whether it has been committed, require any person carrying on a business to produce any documents relating to the business and may take copies of, or of any entry in, any such document;
c
if the officer has reasonable cause to suspect that a breach of the EU Regulation or these Regulations has been committed, he may seize and detain any products for the purpose of ascertaining, by testing or otherwise, whether the breach has been committed; and
d
the officer may seize and detain products or documents which he has reason to believe may be required as evidence in proceedings for a breach of the EU Regulation or these Regulations.
2
If and to the extent that it is reasonably necessary to secure that the provisions of the EU Regulation or these Regulations are observed, the officer may for the purpose of exercising his powers under paragraphs (1)(c) and (d) to seize products or documents —
a
require any person having authority to do so to break open any container or open any vending machine; and
b
himself open or break open any such container or open any vending machine where a requirement made under subparagraph (a) in relation to the container or vending machine has not been complied with.
3
An officer seizing any products or documents in exercise of his powers under this regulation shall —
a
inform the person from whom they are seized, and
b
where products are seized from a vending machine, inform —
i
the person whose name and address are stated on the machine as being the proprietor’s; or
ii
if there is no such name and address stated on the machine, the occupier of the premises on which the machine stands or to which it is affixed,
that the products or documents have been so seized.
4
In this regulation “document” includes information recorded in any form.
5
The reference in paragraph 1(b) to the production of documents is, in the case of a document which contains information recorded otherwise than in legible form, a reference to the production of a copy of the information in legible form.
6
An officer seeking to exercise a power under this regulation must produce evidence of his identity and authority to a person (if there is one) who appears to the officer to be the occupier of the premises.
7
Where an officer seizes products or documents in exercise of a power under this regulation, they may not be detained —
a
for longer than 3 months; or
b
where the products or documents are reasonably required by the enforcement authority in connection with the enforcement of the EU Regulation or these Regulations, for longer than they are so required.
8
An officer entering any premises under this regulation may take with him such other persons and such equipment as may appear to him to be necessary.
9
Nothing in this regulation or regulation 15 gives any power to an officer of an enforcement authority —
a
to require any person to produce, or
b
to seize from another person,
any document which the other person would be entitled to refuse to produce in proceedings in the High Court on the grounds of legal professional privilege or (in Scotland) in proceedings in the Court of Session on the grounds of confidentiality of communications.
10
In paragraph (9) “communications” means —
a
communications between a professional legal adviser and his client; or
b
communications made in connection with or in contemplation of legal proceedings and for the purpose of those proceedings.
11
If any person who is not an officer of an enforcement authority purports to act as such under this regulation or under regulation 15 he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Notice
14
1
The requirement to give reasonable notice under regulation 13(1) shall not apply —
a
where the requirement has been waived by the person carrying on the business;
b
in an emergency; or
c
where giving notice would defeat the object of the entry.
2
A notice under regulation 13(1) may be given to a person by —
a
delivering it to the person;
b
leaving it at or sending it by post to the person’s proper address; or
c
sending it by electronic means to an address which that person has specified in accordance with paragraph (4)(a).
3
For the purposes of this regulation the proper address of any person to whom a notice is given is —
a
if the person has given an address, that address; and
b
if no address has been given —
i
in the case of a body corporate, the registered or principal office of that body;
ii
in any case, the person’s last known address at the time the notice is being given.
4
If the notice is transmitted electronically, it is to be treated as given if —
a
the person to whom the notice is to be given has provided an address suitable for that purpose; and
b
the notice is sent to the address provided.
Power to enter premises with a warrant
15
1
If a justice of the peace, by any written information on oath is satisfied —
a
that there are reasonable grounds for believing that Condition A or B is met, and
b
that Condition C, D or E is met,
the justice may by warrant under the hand of the justice authorise an officer of an enforcement authority to enter the premises at all reasonable times, if necessary by force.
2
Condition A is that there are on any premises products or documents which a duly authorised officer of the enforcement authority has power under regulation 13(1) to inspect and that their inspection is likely to disclose evidence of a breach of the EU Regulation or these Regulations.
3
Condition B is that a breach of the EU Regulation or these Regulations has been, is being or is about to be committed on any premises.
4
Condition C is that the admission to the premises has been or is likely to be refused and that notice of intention to apply for a warrant under the regulation has been given to the occupier.
5
Condition D is that an application for admission, or the giving of a notice of intention to apply for a warrant, would defeat the object of the entry.
6
Condition E is that the premises are unoccupied or that the occupier is absent and it might defeat the object of the entry to await his return.
7
A warrant under paragraph (1) —
a
ceases to have effect at the end of the period of one month beginning on the day it is issued;
b
must be produced for inspection to the person (if there is one) who appears to the officer to be the occupier of the premises.
8
An officer entering any premises under this regulation may take with him such other persons and such equipment as may appear to him to be necessary.
9
On leaving any premises which an officer is authorised to enter by warrant under this regulation the officer shall, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against trespassers as they were found by the officer.
10
In its application to Scotland, this regulation has effect as if —
a
the references in paragraph (1) to a justice of the peace included references to a sheriff; and
b
the reference in paragraph (1) to information on oath were a reference to evidence on oath.
11
In its application to Northern Ireland, this regulation has effect as if the references in paragraph (1) to a justice of the peace were references to a lay magistrate.
Obstruction of authorised officers
16
1
Any person who —
a
intentionally obstructs an officer of an enforcement authority acting in pursuance of the EU Regulation or these Regulations,
b
intentionally fails to comply with any requirement properly made of him by such an officer under regulation 13, or
c
without reasonable cause fails to give such an officer any other assistance or information which he may reasonably require of him for the purpose of the performance of his functions under the EU Regulation or these Regulations,
is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
2
Any person who, in giving any information which is required of him under paragraph (1)(c), makes any statement which he knows to be false in a material particular is guilty of an offence and liable —
a
on summary conviction, to a fine not exceeding the statutory maximum; or
b
on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both.
3
Nothing in this regulation is to be construed as requiring a person to answer any question or give any information if to do so might incriminate him.
Notice of test and intended proceedings
17
1
Where products purchased by an officer pursuant to regulation 12 are submitted to a test and the test leads to the institution of any proceedings for a breach of the EU Regulation or these Regulations the officer shall inform —
a
the person from whom the products were purchased, or
b
where the products were sold through a vending machine, the person mentioned in regulation 13 (3) (b),
of the result of the test.
2
Where products seized by an officer pursuant to regulation 13 are submitted to a test then the officer must inform the persons mentioned in regulation 13 (3) of the result of the test.
3
Where, as a result of the test, any proceedings in respect of a breach of the EU Regulation or these Regulations are taken against any person, the officer must allow that person to have the products tested on that person’s behalf if it is reasonably practicable to do so.
Compensation
18
1
Where an officer of an enforcement authority seizes and detains products in exercise of any powers under regulation 13, the enforcement authority is liable to pay compensation to any person having an interest in the products in respect of any loss or damage caused by reason of the exercise of the powers if —
a
there has been no breach of the EU Regulation or these Regulations in relation to the products, and
b
the exercise of that power is not attributable to any neglect or default by that person.
2
Any disputed question as to the right to or the amount of any compensation payable under this regulation shall be determined by arbitration or, in Scotland, by a single arbiter appointed, failing agreement between the parties, by the sheriff.
Crown
19
1
The powers conferred by regulations 13 and 15 are not exercisable in relation to premises occupied by the Crown.
2
The Crown is not criminally liable as a result of any provision of these Regulations.
3
Paragraph (2) does not affect the application of any provision of these Regulations in relation to a person in the public service of the Crown.
Review
20
1
Before the end of each review period, the Secretary of State must —
a
carry out a review of regulations 1 to 19,
b
set out the conclusions of the review in a report, and
c
lay the report before Parliament.
2
In carrying out the review the Secretary of State must, so far as is reasonable, have regard to the rules on penalties applicable to infringements of the provisions of the EU Regulation and the measures taken to implement them in other member States.
3
The report must in particular —
a
set out the objectives intended to be achieved by the rules on penalties applicable to infringements of the provisions of the EU Regulation established by those regulations and the measures taken to implement them,
b
assess the extent to which those objectives are achieved, and
c
assess whether these objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
4
“Review period” means —
a
the period of five years beginning with the day on which regulations 1 to 19 come into force, and
b
subject to paragraph 5, each successive period of five years.
5
If a report under this regulation is laid before Parliament before the last day of the review period to which it relates, the following review period is to begin with the day on which that report is laid.
Norman Lamb
Parliamentary Under Secretary of State for Employment Relations, Consumer and Postal Affairs
Department for Business, Innovation and Skills
17th April 2012
SCHEDULE 1
Revocations
Regulation 2(1)
Title Reference
The Textile Products (Indications of Fibre Content) Regulations 1986 S.I. 1986/26 The Textile Products (Indications of Fibre Content) (Amendment) Regulations 1988 S.I. 1988/1350 The Textile Products (Indications of Fibre Content) (Amendment) Regulations 1994 S.I. 1994/450 Textile Products (Indications of Fibre Content) (Amendment) Regulations 1998 S.I. 1998/1169 Textile Products (Indications of Fibre Content) (Amendment) Regulations 2005 S.I. 2005/1401 The Textile Products (Indications of Fibre Content) (Amendment) Regulations 2008 S.I. 2008/6 The Textile Products (Determination of Composition) Regulations 2008
Regulations 2008
S.I. 2008/15 The Textile Products (Indications of Fibre Content) (Amendment) (No 2) Regulations 2009 S.I. 2009/1034
SCHEDULE 2
Provisions of EU Regulation
Regulation 5(1)
Provision of EU Regulation Description
1. Article 4 Products shall only be made available on the market provided that they are labelled, marked or accompanied with commercial documents complying with the EU Regulation 2. Article 5 Only textile fibre names listed in Annex I to the EU Regulation shall be used for the description of fibre compositions on labels and markings 3. Article 7 Provisions relating to the use of the terms “100%”, “pure” or “all” 4. Article 8 Provisions relating to the labelling or marking of fleece wool or virgin wool products in accordance with the names set out in Annex III 5. Article 9 Provisions relating to labelling or marking of multi fibre products 6. Article 11 Provisions for the labelling of multi component products 7. Article 12 Provisions for the labelling of products containing non textile parts of animal origin 8. Article 13 Provisions for the labelling and marking of products listed in Annex IV to the EU Regulation 9. Article 14 Provisions on labelling and marking of fibre composition whenever products are made available on the market and provisions for types of labels and commercial documents supplementing or replacing labels 10. Article 15 (1) to (4) Obligations to ensure the accuracy of label or marking and information contained therein when placing a product on the market and making a product available on the market 12. Article 16 Provisions on legibility etc of textile fibre names and fibre composition descriptions 13. Article 17 Derogations from the provisions in Articles 11, 14, 15 and 16. Annex V to the EU Regulation setting out the products for which labelling or marking is not mandatory. Annex VI to the EU Regulation describes the products for which inclusive labelling is sufficient. |
The Civil Legal Aid (Family Relationship) Regulations 2012
The Lord Chancellor makes the following Regulations in exercise of the powers conferred by paragraphs 12(8)(b) and 14(8)(b) of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 .
Citation and commencement
1
These Regulations may be cited as the Civil Legal Aid (Family Relationship) Regulations 2012 and come into force on 1st April 2013.
Matters arising out of a family relationship
2
1
For the purposes of paragraph 12(8)(b) of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“ the Act ”), an application for an order under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 is a matter arising out of a family relationship where —
a
there is a family relationship between A and B (who are defined in paragraph 12(1) of Schedule 1 to the Act); and
b
the property which is the subject of the application is or includes property which is or was occupied by A and B as their home.
2
For the purposes of paragraph 14(8)(b) of Part 1 of Schedule 1 to the Act, an application for an order under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 is a matter arising out of a family relationship where —
a
the property which is the subject of the application is or includes property which is or was occupied by the individuals between whom there is a dispute as their home; and
b
there is a family relationship between those individuals.
Signed by authority of the Lord Chancellor
McNally
Minister of State
25th October 2012
Ministry of Justice |
The Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012
In accordance with section 568(3) and (3A) of that Act , a draft of this instrument was laid before, and approved by a resolution of, each House of Parliament.
Citation, commencement and interpretation
1
1
This Order may be cited as the Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012.
2
This Order comes into force on the day after the day on which it is made.
3
In this Order “pilot scheme” means the pilot scheme set out in Schedule 1.
Pilot scheme
2
The pilot scheme, in accordance with which direct payments may be made under section 532A of the Education Act 1996 , has effect.
Pilot scheme: local authorities
3
The local authorities in respect of which the pilot scheme operates are those local authorities specified in Schedule 2.
Pilot scheme: duration
4
The period for which the pilot scheme has effect is the period of two years from the date on which this Order comes into force.
Sarah Teather
Minister of State
Department for Education
29th January 2012
SCHEDULE 1
Pilot Scheme
Article 2
PART 1 General
Interpretation
1
In this Schedule —
“the 1996 Act ” means the Education Act 1996;
“the 2000 Act ” means the Learning and Skills Act 2000 ;
“the 2005 Act ” means the Mental Capacity Act 2005 ;
“agreed provision” in respect of a beneficiary means the qualifying goods and services or that part of those goods and services which it is agreed is to be secured by means of direct payments in accordance with paragraph 10 ;
“college” means the institution attended or to be attended by the beneficiary in relation to an assessment of their learning difficulties arranged in accordance with section 139A of the 2000 Act ;
“local authority” means the local authority that —
maintains a statement of special educational needs under section 324 of the 1996 Act for a beneficiary or is responsible for arranging an assessment of a beneficiary’s learning difficulties in accordance with section 139A of the 2000 Act; or
is responsible for arranging transport or anything else that may be the subject of arrangements under section 508B(1) , 508F(1) or 509AA(7)(b) of the 1996 Act that apply in relation to a beneficiary;
“nominee” means a person nominated in accordance with paragraph 7;
“qualifying goods and services” means any of the goods and services mentioned in section 532A(2) of the 1996 Act that are, in the case of a beneficiary, specified in a statement of special educational needs under section 324 of the 1996 Act, identified in a learning difficulty assessment under section 139A of the 2000 Act, or the subject of arrangements under section 508B(1), 508F(1) or 509AA(7) of the 1996 Act;
“representative” means —
in the case of a parent of a beneficiary —
where a deputy has been appointed by the Court of Protection under section 16(2)(b) of the 2005 Act (powers to appoint deputies) to make decisions on the parent’s behalf in relation to qualifying goods and services, any such deputy;
where the parent has appointed a donee of a lasting power of attorney within the meaning of section 9 of the 2005 Act (lasting powers of attorney) to make decisions on the parent’s behalf in relation to qualifying goods and services, any such donee;
where the parent has created an enduring power of attorney within the meaning of Schedule 4 to the 2005 Act (provisions applying to existing enduring powers of attorney), which is registered in accordance with paragraphs 4 and 13 of that Schedule or in respect of which an application has been made for such registration, any attorney in whom the power is vested;
in the case of a beneficiary who has attained the age of 16, but does not have capacity to consent to the making of direct payments to them, the parent of the beneficiary, or the parent’s representative, as the case may be.
Effect of direct payment
2
1
Goods and services acquired by means of direct payments made in accordance with this scheme are to be treated as goods and services provided or arranged by a local authority in pursuance of the relevant statutory duty.
2
In this paragraph “the relevant statutory duty” means —
a
where the goods and services are the special educational provision specified in a statement of special educational needs under section 324 of the 1996 Act, the duty specified in section 324(5)(a)(i) of that Act;
b
where the services relate to the travel arrangements specified under section 508B of the 1996 Act, the duty specified in section 508B(1) of that Act;
c
where the services relate to the provision of transport or of anything else that may be the subject of arrangements under section 508F of the 1996 Act, the duty specified in section 508F(1) of that Act; and
d
where the services relate to the provision of transport or anything else which may be the subject of arrangements under section 509AA of the 1996 Act, the duty specified in section 509AA(7) (b) of that Act.
PART 2 Circumstances in which direct payments may be made
Request for direct payments
3
1
Where a local authority has —
a
served a copy of a statement or an amended statement of special educational needs in accordance with paragraph 6 of Schedule 27 to the 1996 Act; or
b
carried out an assessment of a beneficiary’s learning difficulties in accordance with section 139A of the 2000 Act, and has prepared the written report referred to in section 139B(3) of the 2000 Act ,
the authority must provide P with information and advice about direct payments under section 532A(1) of the 1996 Act and if P requests the authority to consider making a direct payment under that section, the authority must consider that request.
2
In this paragraph P means —
a
the parent of a beneficiary where the beneficiary has not yet attained the age of 16;
b
the beneficiary where the beneficiary has attained the age of 16 and has capacity to consent to the making of direct payments to them; or
c
a representative.
Goods and services in respect of which direct payments may be made
4
A local authority may make direct payments in respect of any qualifying goods and services.
Persons in respect of whom direct payments may be made
5
Direct payments may be made in respect of a beneficiary.
Persons to whom direct payments may be made
6
1
Subject to sub-paragraph (2), a local authority may make direct payments to a person who is either —
a
the parent of a beneficiary, where the beneficiary has not yet attained the age of 16; or
b
the beneficiary, where the beneficiary has attained the age of 16.
2
Direct payments may only be made to a person falling within sub-paragraph (1) if the person —
a
appears to the local authority to be capable of managing direct payments without assistance or with such assistance as may be available to them;
b
has attained the age of 16;
c
has capacity to consent to the making of direct payments to them; and
d
is not a person described in Part 4.
Nominees
7
1
Subject to sub-paragraph (2), a local authority may make direct payments to a nominee where —
a
the parent of a beneficiary, where the beneficiary has not yet attained the age of 16; or
b
the beneficiary, where the beneficiary has attained the age of 16,
with capacity to consent to the making of direct payments to them, nominates in writing a person (a “nominee”) to receive the direct payments on their behalf.
2
Direct payments may only be made to a nominee where the nominee —
a
agrees in writing to —
i
act on behalf of the parent or beneficiary in relation to the direct payments;
ii
use the direct payments to secure the agreed provision; and
iii
act in the best interests of the beneficiary when securing the agreed provision; and
b
is not a person described in Part 4.
3
If the parent or beneficiary notifies the local authority in writing that they wish to withdraw or change their nomination, the local authority must stop making direct payments to the nominee as soon as reasonably practicable and, where applicable, consider whether to make direct payments to the alternative nominee.
Representatives
8
1
Subject to sub-paragraph (2), a local authority may make direct payments to a representative where —
a
the parent; or
b
the beneficiary who has attained the age of 16,
does not have capacity to consent to the making of direct payments to them.
2
Direct payments may only be made to a representative where the representative —
a
agrees in writing to —
i
act on behalf of the parent or beneficiary in relation to the direct payments;
ii
use the direct payments to secure the agreed provision; and
iii
act in the best interests of the beneficiary in relation to the direct payments; and
b
is not a person described in Part 4.
Transition - beneficiary attains the age of 16
9
1
This paragraph applies where a beneficiary in respect of whom direct payments are already being made attains the age of 16 and is a person falling within paragraph 6(2).
2
Where the beneficiary agrees in writing, the local authority must continue to make direct payments to the parent or the parent’s nominee or representative, as the case may be.
3
Where the beneficiary wishes to receive and manage the direct payments themselves, the local authority must follow the process set out in paragraphs 11 and 12 to determine whether it is appropriate for the beneficiary to receive and manage the direct payments and obtain their consent in writing in accordance with paragraph 10.
4
Where the beneficiary notifies the local authority in writing that they do not consent to the making of direct payments, the authority must stop making the direct payments as soon as reasonably practicable.
Requirement to reach agreement about direct payments and obtain consent
10
1
Before making direct payments, a local authority must —
a
agree with the person to whom the direct payments are to be made the qualifying goods and services or that part of those goods and services which are to be secured by means of direct payments; and
b
obtain the consent in writing of the person to whom the direct payments are to be made; and
c
in a case where a nominee is to receive the direct payments on behalf of the parent or beneficiary, the agreement and the consent in writing of the parent or the beneficiary, as the case may be.
2
The consent referred to in paragraph (1) must specify —
a
the name of the beneficiary in respect of whom the directs payments are to be made;
b
the agreed provision; and
c
the amount of the direct payments and whether to be paid in a lump sum and if so the date of payment of the lump sum or by instalments and if so the intervals at which the instalments are to be paid.
Decision to make direct payments
11
Before deciding whether to make direct payments in respect of a beneficiary the local authority must be satisfied —
a
that the way the person who will receive direct payments proposes to use them to secure the agreed provision is an appropriate way to do so;
b
that where a parent, nominee or representative is to receive direct payments on behalf of a beneficiary, that person will act in the best interests of the beneficiary when securing the agreed provision;
c
that the making of direct payments in respect of the beneficiary will not have an adverse impact on other services which the local authority provides or arranges for children and young people in its area for whom it maintains a statement of special educational needs under section 324 of the 1996 Act or who are subject to a learning difficulty assessment arranged under section 139A of the 2000 Act; and
d
that securing the agreed provision by means of direct payments in the case of that beneficiary is compatible with the authority’s efficient use of its resources.
Permission of school or college
12
A local authority may not make direct payments in respect of goods or services which will be used or provided in a school or college unless the head teacher, principal or the person occupying an equivalent position at the school or college agrees.
Decision not to make direct payments
13
1
Where a local authority decides not to make direct payments, it must —
a
inform P of its decision, in writing, giving reasons and informing P that P has the right to request a review of that decision;
b
where requested, review its decision and in carrying out the review consider any representations made by P; and
c
notify P of the outcome of the review, giving reasons.
2
In this paragraph “P” means the person who wishes to receive direct payments and, if different, the parent, or the beneficiary, where the beneficiary has attained the age of 16.
Amount of direct payments
14
1
The local authority must ensure that the amount of the direct payments is sufficient to secure the full cost of the agreed provision.
2
The local authority may at any time increase or reduce the amount of the direct payments provided that the authority is satisfied that the new amount is sufficient to secure the full cost of the agreed provision.
3
The local authority may reduce the amount of a direct payment for such period as it determines where —
a
direct payments have accumulated and remained unused; and
b
the local authority considers that it is reasonable to offset the monies accumulated against the outstanding amount to be paid for that period.
4
Where the local authority decides to increase or reduce the amount of direct payments it must —
a
give reasonable notice in writing to the person receiving the direct payments; and
b
where it decides to reduce the amount of direct payments in the circumstances described in sub-paragraph (2) or (3), it must give reasons for that reduction in the notice.
Monitoring and review of direct payments
15
1
The local authority must monitor the use of direct payments by persons to whom direct payments are made.
2
The local authority must review the making and use of direct payments whenever any changes are made in relation to the qualifying goods and services and, in any event —
a
at least once within the first three months of direct payments being made in respect of a beneficiary;
b
at the end of the period of one year of direct payments being made; and
c
thereafter at appropriate intervals.
3
Where the local authority is notified or becomes aware of a change in the circumstances of the beneficiary which may affect whether the amount of the direct payments is sufficient to secure the agreed provision, it must consider whether that amount is sufficient.
4
Where the local authority is satisfied that the amount of the direct payments is not sufficient to secure the full cost of the agreed provision, it must increase the amount of the direct payments to ensure that the amount is sufficient to secure the full cost.
5
When carrying out a review under sub-paragraph (2) the local authority must consider whether —
a
it continues to be appropriate to secure the agreed provision by means of direct payments;
b
the direct payments have been used effectively;
c
the amount of the direct payments continues to be sufficient to secure the agreed provision;
d
it is still satisfied as to the matters set out in paragraph 11; and
e
the person receiving the direct payments has complied with the obligations imposed on them under Part 3.
16
1
Following a review, the local authority may —
a
substitute the person receiving the direct payments with a representative, a nominee, a parent or the beneficiary where the beneficiary has attained the age of 16, as appropriate;
b
increase, maintain or reduce the amount of the direct payments;
c
stop making direct payments;
d
require that the person receiving the direct payments complies with either or both of the following conditions —
i
the person must not secure a service from a particular person;
ii
the person must provide such information as the local authority considers necessary;
e
take any other action that the local authority considers appropriate.
2
Where, following a review, the local authority decides to increase the amount of the direct payments, the local authority must notify the person receiving the direct payments.
3
Where, following a review, the local authority decides to reduce the amount of, or stop making, the direct payments, the local authority must give reasonable notice in writing to the person receiving the direct payments, giving reasons.
4
On receipt of a notice under sub-paragraph (2), the person receiving the direct payments may request the local authority to reconsider its decision.
5
The local authority must give written notice to the person receiving the direct payments of the decision on any further reconsideration, giving reasons.
6
The local authority need not undertake more than one reconsideration of a decision under sub-paragraph (2).
Stopping making direct payments
17
The local authority must stop making direct payments if —
a
any consent required under paragraph 10 is withdrawn;
b
the person receiving the direct payments ceases to be a person to whom direct payments may be made in accordance with paragraphs 6 to 8;
c
where the person receiving the direct payments is a nominee or a representative, and the nominee or representative no longer meets all of the conditions set out in paragraph 7 or, as the case may be, paragraph 8;
d
following a review under paragraph 15, it appears to the local authority that the person receiving the direct payments is not using the direct payments to secure the agreed provision;
e
following a review under paragraph 15, it appears to the local authority that the agreed provision can no longer be secured by means of direct payments;
f
at any point the local authority becomes aware that the making of direct payments in respect of a beneficiary is —
i
having an adverse impact on other services which the local authority provides or arranges for children and young people in its area for whom it maintains a statement of special educational needs under section 324 of the 1996 Act or who are subject to a learning difficulty assessment arranged under section 139A of the 2000 Act; or
ii
no longer consistent with the authority’s efficient use of its resources.
Repayment and recovery of direct payments
18
1
Subject to sub-paragraph (2), the local authority may require that all or part of any direct payments must be repaid if it is satisfied that it is appropriate having regard in particular to whether —
a
there has been any change in the qualifying goods and services following a review of the statement of the beneficiary’s special educational needs maintained under section 324 of the 1996 Act, of the educational and training needs identified in the beneficiary’s learning difficulty assessment conducted under section 139A of the 2000 Act or of the arrangements under section 508B, 508F or 509AA of the 1996 Act that apply in relation to the beneficiary;
b
the circumstances of the beneficiary have changed in a way that has an impact on the agreed provision;
c
all or part of the direct payments have not been used to secure the agreed provision;
d
the direct payments have been used otherwise than to secure the agreed provision;
e
an offence has been committed in connection with the direct payments; or
f
the beneficiary has died.
2
The local authority may only seek repayment of any portion of the direct payments that has not already been spent on agreed provision.
3
Where the local authority requires a sum to be repaid, it must give notice in writing to the person receiving the direct payments, stating —
a
the reasons;
b
the amount to be repaid; and
c
the time within which the sum must be repaid.
4
On receipt of a notice under sub-paragraph (3), a person receiving the direct payments may request the local authority to reconsider its decision.
5
The local authority must give written notice to the person receiving the direct payment of the decision on any reconsideration, giving reasons and setting out the amount to be repaid, if any, and the time within which any sum must be repaid.
6
The local authority need not undertake more than one reconsideration of a decision under sub-paragraph (1).
7
The local authority may waive any requirement pursuant to a decision under sub-paragraph (1) or (5) for all or part of any direct payments to be repaid.
8
Where the local authority requires a sum to be repaid pursuant to this paragraph, that sum may be recovered as a debt due to the local authority.
Information, advice and support
19
1
The local authority must make arrangements for a person to or in respect of whom direct payments are made to obtain information, advice or other support in connection with direct payments.
2
The local authority must provide the person receiving direct payments with written information about organisations that may be able to provide advice and assistance in connection with direct payments.
3
Where the information, advice or support is subject to a charge by an organisation, such information, advice or support may be treated as goods or services in respect of which direct payments may be made.
PART 3 Conditions to be complied with by the person receiving direct payments
20
1
The local authority must require the person receiving direct payments (“R”) to comply with the conditions set out in this paragraph.
2
The conditions are that R must —
a
use the direct payments only to secure the agreed provision;
b
notify the local authority if any relevant circumstances of the beneficiary change in a way that would impact on their need for the agreed provision;
c
ensure that the bank account approved by the local authority into which the direct payments are paid is —
i
used only for purposes connected with the direct payments; and
ii
accessible only by R or any other named persons approved in writing by the local authority;
d
keep a record of money paid in and withdrawn from the account mentioned in paragraph (c) and, on request, or at intervals specified by the local authority, provide the local authority with information or evidence relating to —
i
that account; or
ii
the goods or services secured by means of the direct payments.
3
The local authority may impose on R a condition that R must not secure a service from a particular person or provider.
PART 4 Persons to whom direct payments may not be made
21
The following persons may not receive direct payments —
a
a person who is subject to a drug rehabilitation requirement, as defined by section 209 of the Criminal Justice Act 2003 , imposed by a community order within the meaning of section 177 of that Act or by a suspended sentence order within the meaning of section 189 of that Act;
b
a person who is subject to an alcohol treatment requirement, as defined by section 212 of the Criminal Justice Act 2003, imposed by a community order within the meaning of section 177 of that Act or by a suspended sentence order within the meaning of section 189 of that Act;
c
a person who is released on licence under Part 2 of the Criminal Justice Act 1991 , Chapter 6 of Part 12 of the Criminal Justice Act 2003 or Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 subject to a non-standard licence condition requiring the offender to undertake offending behaviour work to address drug-related or alcohol-related behaviour;
d
a person who is required to submit to treatment for their drug or alcohol dependency by virtue of a community rehabilitation order within the meaning of section 41 of the Powers of Criminal Courts (Sentencing) Act 2000 or a community punishment and rehabilitation order within the meaning of section 51 of that Act ;
e
a person who is subject to a drug treatment and testing order imposed under section 52 of the Powers of Criminal Courts (Sentencing) Act 2000 .
SCHEDULE 2
Local Authorities
Article 3
The local authorities in respect of which the pilot scheme operates are —
Brighton and Hove City Council
Calderdale Metropolitan Borough Council
Cornwall Council
Coventry City Council
Darlington Borough Council
Derbyshire County Council
Devon County Council
East Sussex County Council
Essex County Council
Gateshead Metropolitan Borough Council
Gloucestershire County Council
Hampshire County Council
Hartlepool Borough Council
Hertfordshire County Council
Council of the Isles of Scilly
Kent County Council
Leicester City Council
London Borough of Bexley
London Borough of Bromley
London Borough of Greenwich
London Borough of Lewisham
Manchester City Council
Medway Council
Newcastle upon Tyne City Council
Northamptonshire County Council
North Yorkshire County Council
Nottinghamshire County Council
Oldham Metropolitan Borough Council
Rochdale Metropolitan Borough Council
Solihull Metropolitan Borough Council
Southampton City Council
Surrey County Council
Trafford Metropolitan Borough Council
West Sussex County Council
Wiltshire Council
Wigan Metropolitan Borough Council |
The Electoral Registration Data Schemes Order 2012
In accordance with section 35(10) of that Act, a draft of this Order has been laid before and approved by each House of Parliament.
Citation, commencement and interpretation
1
This Order may be cited as the Electoral Registration Data Schemes Order 2012 and comes into force on the day after the day on which it is made.
2
In this Order —
“ the Act ” means the Political Parties and Elections Act 2009;
“area” means —
in England, a district or London borough;
in Wales, a county or county borough;
in Scotland, a local government area;
“the Secretary of State” means the Secretary of State for Work and Pensions.
Authorisation of data schemes
3
Subject to article 4, the Secretary of State may provide to the registration officer for an area mentioned in Part 1 of the Schedule information described in Part 2 of the Schedule which relates to that area.
4
1
The Secretary of State may provide information to a registration officer under article 3 only if —
a
the information is provided before 1st April 2013;
b
the information is provided for the purpose mentioned in section 35(2) of the Act; and
c
the Secretary of State and the registration officer have agreed in writing, in relation to the scheme, requirements as to the processing of information, including requirements as to the transfer, storage, destruction and security of information.
2
An agreement under paragraph (1)(c) must make provision for the consequences of a failure to comply with such requirements, and those consequences may include the suspension or termination of the provision of information by the Secretary of State.
Evaluation date
5
For the purpose of section 36(3) of the Act, the evaluation date for each scheme is 30th June 2013.
Revocation
6
The Electoral Registration Data Schemes Order 2011 is revoked.
Signed by authority of the Lord President of the Council
Mark Harper
Minister for Political and Constitutional Reform
Cabinet Office
17th July 2012
SCHEDULE
Specification of areas and information
Article 3
PART 1 Scheme areas
Ceredigion
Colchester
Conwy
City of Edinburgh, East Lothian, Midlothian and West Lothian
Greenwich
Guildford
Harrow
Manchester
Peterborough
Powys
Renfrewshire, East Renfrewshire and Inverclyde
South Ribble
Southwark
Sunderland
Tower Hamlets
Wigan
Wolverhampton
PART 2 Information authorised to be provided
7
The name, address and date of birth of individuals appearing in databases kept by the Secretary of State —
a
for the purposes of functions relating to social security (including such information kept on behalf of the Department for Social Development ); and
b
relating to working tax credit, child tax credit and child benefit (being information kept on behalf of Her Majesty’s Revenue and Customs ).
8
Any other information contained in the databases mentioned in paragraph 1 which relates to the information mentioned in that paragraph. |
The Ouse and Humber Drainage Board Order 2012
Accordingly, the Secretary of State makes the following Order in exercise of the powers conferred by section 3(5) and (7) of that Act and now vested in the Secretary of State :
Citation and commencement
1
This Order may be cited as the Ouse and Humber Drainage Board Order 2012 and, if confirmed by the Secretary of State in accordance with paragraph 5(1) of Schedule 3 to the Land Drainage Act 1991, comes into force in accordance with that paragraph.
Confirmation of the Scheme
2
1
The Scheme submitted by the Environment Agency is confirmed.
2
The Scheme is set out in the Schedule to this Order.
Secretary of State’s expenses
3
The expenses of the Secretary of State in connection with the making and confirmation of this Order must be borne by the Environment Agency.
Carol Tidmarsh
A Civil Servant, for and on behalf of the
Secretary of State for Environment, Food and Rural Affairs
10th February 2012
SCHEDULE
SCHEME SUBMITTED BY THE ENVIRONMENT AGENCY
Article 2(2)
1
This Scheme comes into force on the day after the day on which the Order confirming this Scheme is confirmed.
2
In this Scheme —
“the abolished boards” means the Market Weighton Drainage Board and the Lower Ouse Internal Drainage Board;
“the commencement date” means the date on which this Scheme comes into force;
“the Lower Ouse Internal Drainage Board” means the internal drainage board reconstituted by the scheme confirmed by the Yorkshire Ouse River Board (Reconstitution of the Lower Ouse Internal Drainage Board) Order 1952 and “the Lower Ouse Internal Drainage District” means the internal drainage district constituted by the Yorkshire Ouse River Board (Lower Ouse Internal Drainage District) Order 1951 , as confirmed, the boundaries of which were altered by the Yorkshire Water Authority (Alteration of Boundaries of the Lower Ouse Internal Drainage District) Order 1989 ;
“the Market Weighton Drainage Board” means the internal drainage board deemed to have been constituted under the Land Drainage Act 1930 and “the Market Weighton Drainage District” means the internal district deemed to have been constituted under that Act, the boundaries of which were altered by the schemes confirmed by the Market Weighton Drainage District (Alteration of Boundaries) Order 1933 and the Market Weighton Drainage District (Alteration of Boundaries) Order 1936 ;
“the new Board” means the internal drainage board constituted by virtue of paragraph 3(3) of this Scheme;
“property” means, in relation to any of the abolished boards, any property which is vested in that board immediately before the commencement date and includes books of account, other books, deeds, maps, papers and other documents, in whatever medium held, and computer and other electronic records;
“rights and obligations” means, in relation to any of the abolished boards, all rights, powers, duties, obligations and liabilities which are vested in or which fall to be discharged by that abolished board immediately before the commencement date.
3
1
The Market Weighton Drainage Board and the Lower Ouse Internal Drainage Board are abolished.
2
The Market Weighton Drainage District and the Lower Ouse Internal Drainage District are amalgamated into, and are constituted as, one internal drainage district to be known as “the Ouse and Humber Drainage District”.
3
A new internal drainage board to be known as “the Ouse and Humber Drainage Board” is constituted for the Ouse and Humber Drainage District.
4
The new Board is to consist of 11 elected members elected in accordance with the provisions made by or under Schedule 1 to the Land Drainage Act 1991.
5
As from the commencement date, all property and rights and obligations of the abolished boards are transferred to and vested in, or fall to be discharged by, the new Board.
6
All arrears of rates levied by the abolished boards before the commencement date in respect of any period ending before the commencement date may be recovered by the new Board, in the same manner as if they had been rates levied by the new Board.
7
This Scheme operates as conclusive evidence of any thing transferred under this Scheme without the necessity of further assignments, conveyance or deed of transfer.
8
The accounts of each of the abolished boards must be made up to the day before the commencement date by the new Board and audited as if this Scheme had not come into force.
Dated 7 July 2011
Confirmation of Order
In accordance with paragraph 4 of Schedule 3 to the Land Drainage Act 1991 (“the 1991 Act ”), the Secretary of State has published the foregoing Order and a notice complying with paragraph 4(2) of Schedule 3 to the 1991 Act.
No memorial relating to the Order has been presented to the Secretary of State.
Paragraph 5(1) of Schedule 3 to the 1991 Act provides for the Order to come into force upon its confirmation by the appropriate Minister, being (by virtue of paragraph 1(3) of that Schedule) the Minister by whom the Order has been made.
Accordingly, the Secretary of State confirms the Order in accordance with paragraph 5(1) of Schedule 3 to the 1991 Act.
Lewis Baker
A Civil Servant, for and on behalf of the
Secretary of State for Environment, Food and Rural Affairs
31st March 2012 |
The Value Added Tax (Amendment) (No. 2) Regulations 2012
The Commissioners for Her Majesty’s Revenue and Customs make the following Regulations in exercise of the powers conferred by sections 3(2) and (4), 18B(2A), 18C(1A), 25(1), 26(3) and (4), 26B(1), 35(2), 39(1) and (3), 48(4), (4A) and (6), 49(2) and 54(1) and (6) of, and paragraph 17 of Schedule 1, paragraph 14 of Schedule 1A, paragraph 9 of Schedule 2, paragraph 10 of Schedule 3, paragraph 8 of Schedule 3A and paragraphs 2(1), (3), (4), (5), (10), 2A and 7(1) of Schedule 11 to, the Value Added Tax Act 1994 , sections 132 and 133 of the Finance Act 1999 , sections 135 and 136 of the Finance Act 2002 and paragraph 10 of Schedule 27 to the Finance Act 2012 .
Citation and commencement
1
These Regulations may be cited as the Value Added Tax (Amendment) (No. 2) Regulations 2012 and come into force in accordance with regulation 2.
2
1
Regulations 1, 2, 3, 9 and 17 come into force on 1st October 2012.
2
The remaining regulations come into force on 15th October 2012.
Amendment to the Value Added Tax Regulations 1995
3
The Value Added Tax Regulations 1995 are amended as follows.
4
In regulation 2 —
a
in the definition of “registered person” in paragraph (1), after “1,” insert “1A,”;
b
in paragraph (3) for “prescribed in Schedule 1 to these Regulations” substitute “specified in a notice published by the Commissioners”.
Electronic communication
5
After regulation 4 (requirement, direction, demand or permission), insert —
Electronic communication
4A
1
A specified communication may be made to the Commissioners using an electronic communications system.
2
Where an electronic communications system is used it must take a form approved by the Commissioners in a specific or general direction.
3
A direction under paragraph (2) may in particular —
a
modify or dispense with any requirement of a form mentioned in regulation 2(3) used to make a specified communication;
b
specify different forms of electronic communications system for different cases; and
c
specify different circumstances in which the electronic communications system may be used, or not used, by or on behalf of the person required to make the communication and specify different circumstances for different cases.
4
An electronic communications system shall incorporate an electronic validation process.
5
Subject to paragraph (6) below and unless the contrary is proved —
a
the use of an electronic communications system shall be presumed to have resulted in the making of a communication to the Commissioners only if this has been successfully recorded as such by the relevant electronic validation process;
b
the time of making a communication to the Commissioners using an electronic communications system shall be presumed to be the time recorded as such by the relevant electronic validation process; and
c
the person delivering a communication to the Commissioners shall be presumed to be the person identified as such by any relevant feature of the electronic communications system.
6
No communication shall be treated as having been made using an electronic communications system unless it is in the form required by paragraph (2).
7
A communication made using an electronic communications system carries the same consequences as a communication made in paper form.
8
In paragraph (2) “direction” refers only to a current direction, and a direction is not current to the extent that it is varied, replaced or revoked by another Commissioners’ direction.
4B
1
A specified communication is —
a
an application under section 43B(1), (2)(d) or (3) of the Act (Groups: applications);
b
a notification under regulation 5(1), (2) or (3) (registration and notification);
c
an application under regulation 6(1)(d) (transfer of a going concern);
d
a notification under regulation 10(1) or (4) ( VAT representatives);
e
an application under regulation 52(1) (annual accounting scheme: eligibility);
f
a notification under regulation 54(2) (annual accounting scheme: termination);
g
a notification under regulation 55(1)(d) (annual accounting scheme: termination);
h
a notification under regulation 55B(1)(a) (flat-rate scheme for small businesses: notification of desire to join the scheme); and
i
a notification under regulation 55Q(1)(e) (flat-rate scheme for small businesses: notification of decision to withdraw from the scheme).
.
Registration and notification
6
In regulation 5 (registration and notification) —
a
in paragraph (1) —
i
after the first use of “Schedule 1,” insert “paragraph 5(1), 6(1) or (13)(3) of Schedule 1A ,” ,
ii
for “in forms numbered 1, 6, 7 and 7A respectively in Schedule 1 to these Regulations and shall be made in those forms” substitute “in the relevant form specified in a notice published by the Commissioners and shall be made in that form”, and
iii
for “the form numbered 2 in that Schedule” substitute “the relevant form specified in a notice published by the Commissioners”;
b
in paragraph (2) —
i
after “Schedule 1,” insert “paragraph 7, 8 or 9(1) of Schedule 1A,”, and
ii
omit “in writing”;
c
in paragraph (3) omit “shall be made in writing to the Commissioners and”; and
d
omit paragraphs (4) to (14).
General amendments
7
In regulation 6 (transfer of a going concern) —
a
in paragraph (1) —
i
in sub-paragraph (b), after “Schedule 1” insert “or 1A”,
ii
in sub-paragraph (c), for “under that Schedule” wherever it occurs substitute “under either Schedule” and for “under paragraph 9 of that Schedule” substitute “under paragraph 9 of Schedule 1 to the Act”,
iii
in sub-paragraph (d) for “the form numbered 3 in Schedule 1 to these Regulations” substitute “the form specified in a notice published by the Commissioners”, and
iv
for “cancel the registration under Schedule 1” to the end substitute “cancel the registration under Schedule 1 or 1A to the Act of the transferor and register the transferee under Schedule 1 or 1A to the Act as appropriate with the registration number previously allocated to the transferor”;
b
in paragraph (2) after “Schedule 1” insert “or paragraph 7 of Schedule 1A”; and
c
in paragraph (3) after “Schedule 1” insert “or 1A”.
8
In regulation 10(1) (VAT representatives) —
a
for “on the form numbered 8 in Schedule 1 to these Regulations” substitute “in the form specified in a notice published by the Commissioners”; and
b
for “in that form” substitute “in that notice”.
9
After regulation 15A, insert —
Change of liability: anti-forestalling invoices
15B
1
Where —
a
an anti-forestalling charge is due under Schedule 27 to the Finance Act 2012 in relation to any supply,
b
the person making the supply (“the supplier”) would have been required to provide the person to whom the supply is made (“the recipient”) with a VAT invoice under regulation 13 in respect of the supply at the time it was made had the supply been subject to the standard rate of VAT at that time, and
c
where the supply has been included in a VAT invoice, the supplier has not included the anti-forestalling charge in that VAT invoice,
the supplier shall, within 45 days after the date when the anti-forestalling charge becomes due, provide the recipient with an invoice headed “Anti-forestalling charge invoice” and containing the particulars specified in paragraph (2) or (3) as appropriate.
2
Where the supply has not been included in a VAT invoice, the particulars are the particulars required in regulation 14.
3
Where the supply has been included in a VAT invoice which does not include the anti-forestalling charge, the particulars are —
a
the identifying number and date of issue of the anti-forestalling charge invoice,
b
the amount of the anti-forestalling charge to VAT,
c
the name, address and registration number of the supplier,
d
the name and address of the recipient, and
e
the identifying number and date of issue of the VAT invoice in which the supply was previously included.
.
10
For regulation 22(2)(a) ( EC sales statements: submission of statements) substitute —
a
be made in the form specified in a notice published by the Commissioners,
.
11
For regulation 22A(2)(a) substitute —
a
made in the form specified in a notice published by the Commissioners,
.
12
For regulation 22C(3)(a) substitute —
a
be made in the form specified in a notice published by the Commissioners,
.
13
In regulation 25 (making of returns) —
a
in paragraph (1)(b), after “Schedules 1,” insert “1A,”; and
b
in paragraph (4)(b), after “Schedule 1” insert “, paragraph 4 of Schedule 2 or paragraph 4 of Schedule 3”.
14
In regulation 25A —
a
in paragraph (2), for “on the form numbered 4 in Schedule 1 to these Regulations (“Form 4”) or, in the case of a final return, on the form numbered 5 in Schedule 1 to these Regulations (“Form 5”)” substitute “or a final return on the relevant form specified in a notice published by the Commissioners”;
b
in paragraph (9) for “must be made on Form 4” to the end substitute “or 25(4) must be made on the relevant form specified in a notice published by the Commissioners”; and
c
in paragraph (10)(a) for “Form 4 or Form 5 (as appropriate)” substitute “the relevant form specified in a notice published by the Commissioners”.
15
In regulation 34 (correction of errors), in paragraph (3) for “see regulation 25 and Schedule 1 Forms 4 and 5” substitute “see regulations 25 and 25A and the relevant forms specified in a notice published by the Commissioners”.
16
In regulation 99 (input tax and partial exemption: interpretation of Part XIV and longer periods) —
a
in paragraph (1)(c)(ii), after “Schedule 1,” insert “1A,”;
b
in paragraph (1)(d)(i), after “Schedule 1,” insert “1A,”; and
c
in paragraph (1)(e), after “Schedule 1,” insert “1A,”.
17
After regulation 113 (adjustments to the deduction of input tax on capital items: capital items to which this Part applies) insert —
113A
1
This regulation applies where —
a
the owner of an item described by regulation 113(2)(a) to (c) (“O”) (or a person to whom O has granted an interest in that item) uses that item to make a grant that falls within item 1(ka) of Group 1 of Schedule 9 to the Act ,
b
apart from this regulation, the item would not be a capital item to which this Part applies,
c
O has, no later than 31st March 2013, decided to treat the item as a capital item for the purposes of this Part, and
d
O has made a written record of that decision specifying the date that it was made.
2
Where this regulation applies, for the item in question —
a
for “£250,000” in regulation 113(4)(a) substitute “£1”, but
b
no adjustment of deductions of input tax shall be made under this Part for any intervals ending before 1st October 2012 that fall within the period of adjustment for the capital item as prescribed in regulation 114.
.
18
In regulation 145B(1) (fiscal warehousing: certificates), for “in the form numbered 17 in Schedule 1 to these Regulations” substitute “in the form specified in a notice published by the Commissioners”.
19
In regulation 145C (fiscal warehousing: certificates connected with services in fiscal or other warehousing regimes), for “in the form numbered 18 in Schedule 1 to these Regulations” substitute “in the form specified in a notice published by the Commissioners”.
20
In regulation 191(1) (repayments to third country traders: method of claiming) —
a
in sub-paragraph (a), for “the form numbered 9 in Schedule 1 to these Regulations” substitute “the form specified in a notice published by the Commissioners”; and
b
in sub-paragraph (b)(i), for “the form numbered 10 in Schedule 1 to these Regulations” substitute “the form specified in a notice published by the Commissioners”.
21
For regulation 201A (refunds to “do-it-yourself” builders: relevant form) substitute —
201A
The relevant form for the purposes of a claim is —
a
form VAT 431NB where the claim relates to works described in section 35(1A)(a) or (b) of the Act ; and
b
form VAT 431C where the claim relates to works described in section 35(1A)(c) of the Act.
.
22
In regulation 203 (flat-rate scheme for farmers: flat-rate scheme), in paragraph (2) after “1” insert “or 1A”.
23
In regulation 204(c) (flat-rate scheme for farmers: admission to the scheme), for “numbered 14 in Schedule 1 to these Regulations” substitute “specified in a notice published by the Commissioners”.
24
In regulation 205 (flat-rate scheme for farmers: certification), after “1” insert “, 1A”.
25
In regulation 206(1)(f) (flat-rate scheme for farmers: cancellation of certificates) after “1” insert “, 1A”.
26
In regulation 208(a) (flat-rate scheme for farmers: further certification) after “1” insert “, 1A”.
27
Omit Schedule 1.
Mike Eland
Dave Hartnett
Two of the Commissioners for Her Majesty’s Revenue and Customs
18th July 2012 |
The Postal Services Act 2011 (Taxation) Regulations 2012
PART 1 Preliminary
Citation, commencement and effect
1
1
These Regulations may be cited as the Postal Services Act 2011 (Taxation) Regulations 2012 and come into force immediately after the coming into force of both —
a
the first order made under section 17(2) (transfer of qualifying accrued rights to new public scheme) of the Act by virtue of an order made under section 25(4) and (5) of the Act (“the specified day order”); and
b
the first order made under section 21(1) (transfer of assets of the RMPP ) of the Act by virtue of the specified day order.
2
Regulation 3 has effect in relation to the accounting period which begins on or before and ends on or after the date on which the first order made under section 17(2) of the Act comes into force by virtue of the specified day order, and subsequent accounting periods.
3
Regulations 4 and 5 have effect in relation to accounting periods beginning on or after the date on which the first order made under section 17(2) of the Act comes into force by virtue of the specified day order.
Interpretation
2
1
In these Regulations —
“accounting period” is to be read in accordance with Chapter 2 of Part 2 of the Corporation Tax Act 2009 (accounting periods);
“Accrued Rights” means the rights transferred from the RMPP to the new public scheme pursuant to an order made under section 17(2) of the Act;
“the Accrued Rights Transfer” means the transfer of Accrued Rights from the RMPP to the new public scheme;
“the Act” means the Postal Services Act 2011;
“the Assets Transfer” means the transfer of assets of the RMPP pursuant to an order made under section 21(1) of the Act;
“excluded contributions” means contributions paid to the RMPP in advance of 31st March 2012 in respect of amounts falling due after that date under the existing Schedule of Contributions of the RMPP;
“the final accounting period” means the accounting period which ended immediately before the first qualifying accounting period;
“the first qualifying accounting period” means the first accounting period which begins on or after the date on which the first order made under section 17(2) of the Act comes into force by virtue of an order made under section 25(4) and (5) of the Act;
“the new public scheme” means the new public scheme established pursuant to an order made under section 17(1) of the Act;
“Part 4” means Part 4 (pension schemes etc ) of the Finance Act 2004 ;
“ POL ” means the Post Office Limited (registered number 02154540);
“ RMGL ” means the Royal Mail Group Limited (registered number 04138203);
“the Transfer” means the Accrued Rights Transfer and the Assets Transfer;
“the Transitional Provisions Order ” means the Taxation of Pension Schemes (Transitional Provisions) Order 2006 ;
a reference to a numbered section or Schedule (without more) is a reference to the section or Schedule bearing that number in the Finance Act 2004; and
expressions which are defined, or are otherwise explained, in section 280 (abbreviations and general index) have the same meaning in these Regulations as they have in Part 4.
2
For the purposes of paragraph (1) “Schedule of Contributions” has the same meaning as in section 227(2) of the Pension Act 2004 .
PART 2 Corporation Tax
De-recognition of the obligations and assets of the RMPP
3
1
Paragraph (2) applies where —
a
RMGL or POL recognises a debit or credit in its accounts, in accordance with generally accepted accounting practice; and
b
the debit or credit is recognised in that company’s accounts as a consequence of —
i
the Accrued Rights Transfer;
ii
the division of the RMPP in accordance with an order made under section 18 of the Act (division of the RMPP into different sections);
iii
an amendment of the RMPP in accordance with an order made under section 19 of the Act (amendments of the RMPP) in connection with an order under section 17 or section 18 of the Act; or
iv
the Assets Transfer.
2
In computing the profits, gains or losses of that company for the purposes of corporation tax, no amount is to be brought into account in respect of the debit or credit.
3
In this regulation —
a
“accounts” has the meaning given by section 17(1) of the Corporation Tax Act 2010 (interpretation); and
b
“generally accepted accounting practice” has the same meaning as in section 1127 of the Corporation Tax Act 2010 (generally accepted accounting practice and related expressions).
Extinguishment of relevant losses of RMGL
4
1
With effect from the first day of the first qualifying accounting period, the relevant losses of RMGL are to be treated for the purposes of corporation tax as extinguished.
2
The amount of the relevant losses that are to be treated as extinguished in accordance with paragraph (1) is the sum of the relevant loss incurred in each accounting period prior to the final accounting period.
3
In this regulation a loss is a relevant loss for an accounting period (“the relevant accounting period”) if —
a
the loss was incurred in the trade carried on by RMGL in the relevant accounting period; and
b
the loss is included in the losses carried forward to the first qualifying accounting period as an unrelieved loss in accordance with section 45 of the Corporation Tax Act 2010 (carry forward of trade loss against subsequent trade profits),
but this paragraph is subject to paragraph (4).
4
A loss is not a relevant loss for the purposes of paragraph (3) to the extent that it is attributable to deductions in the computation of the loss for an accounting period for contributions that are excluded contributions.
5
For the purposes of this regulation —
a
losses incurred by RMGL are the losses computed in accordance with section 47 of the Corporation Tax Act 2009 (losses calculated on the same basis as profits); and
b
a loss is an unrelieved loss for an accounting period if no relief has been given in respect of the loss under section 37 (relief for trade losses against total profits) or Part 5 of the Corporation Tax Act 2010 (group relief).
Extinguishment of trading losses of POL
5
1
With effect from the first day of the first qualifying accounting period, the relevant losses of POL are to be treated for the purposes of corporation tax as extinguished.
2
In this regulation “relevant losses” means the aggregate of the losses incurred in each accounting period prior to the final accounting period calculated in accordance with paragraph (3). This paragraph is subject to paragraph (4).
3
The amount of the loss for each accounting period (“the relevant accounting period”) is found by —
a
calculating —
i
the amount of the loss incurred in the trade carried on by POL in the relevant accounting period which is carried forward to the first qualifying accounting period as an unrelieved loss in accordance with section 45 of the Corporation Tax Act 2010 (“L”); and
ii
the amount of deductions in the computation of the loss for that relevant accounting period for, or in connection with, contributions in respect of qualifying members of the RMPP (“P”); and
b
comparing the figures given by L and P for each accounting period and where —
i
L is greater than P, the relevant loss for that period is the amount equal to P;
ii
L is less than P, the relevant loss for that period is the amount equal to L; and
iii
L and P are the same, the relevant loss for that period is the amount equal to P.
4
A loss is not a relevant loss for the purposes of this regulation to the extent that it is attributable to deductions in the computation of the loss for an accounting period for payments in relation to contributions that are excluded contributions.
5
For the purposes of this regulation —
a
losses incurred by POL are the losses computed in accordance with section 47 of the Corporation Tax Act 2009; and
b
a loss is an unrelieved loss for an accounting period if no relief has been given in respect of the loss under section 37 or Part 5 of the Corporation Tax Act 2010.
Exemption from corporation tax
6
1
BCL is exempt from corporation tax for any accounting period that begins and ends before 1st April 2015.
2
For the purposes of this regulation “BCL” means the private company limited by shares incorporated on 8th February 2012 with the registered number 07941521 and with the name BIS (Postal Services Act 2011) Company Limited.
PART 3 Income Tax
CHAPTER 1
Transfer of Accrued Rights from the RMPP to the new public scheme
New public scheme to be treated as a registered pension scheme
7
The new public scheme is to be treated as a registered pension scheme for the purposes of Part 4.
Transfer to be treated as a recognised transfer
8
1
For the purposes of Part 4, the Transfer is to be treated as a recognised transfer of sums or assets held for the purposes of, or representing accrued rights under, the RMPP in connection with a member of that scheme within the meaning of section 169(1).
2
Paragraph (3) applies where the Accrued Rights Transfer has resulted in the transfer to the new public scheme of Accrued Rights in respect of a scheme pension to which a member of the RMPP has become entitled (“the original scheme pension”).
3
The sums and assets which represented rights in respect of the original scheme pension are to be treated, after the Accrued Rights Transfer, as being applied towards the provision of a scheme pension for the purposes of regulations 3 and 5 of the Registered Pension Schemes (Transfer of Sums and Assets) Regulations 2006 (the “Transfer of Sums and Assets Regulations”).
4
Paragraph (5) applies where the Accrued Rights Transfer has resulted in the transfer to the new public scheme of Accrued Rights in respect of a dependants’ scheme pension to which a dependant of a member of the RMPP has become entitled in respect of the member (“the original dependants’ scheme pension”).
5
The sums and assets which represented rights in respect of the original dependants’ scheme pension are to be treated, after the Accrued Rights Transfer, as being applied towards the provision of a dependants’ scheme pension for the purposes of regulation 8 of the Transfer of Sums and Assets Regulations.
CHAPTER 2
Continued application of “A day” transitional provisions after the Accrued Rights Transfer
“Enhanced protection” to continue after the Accrued Rights Transfer
9
Where the Accrued Rights Transfer has taken place —
a
the Transfer is to be treated as a permitted transfer within the meaning of paragraph 12(7) of Schedule 36 for the purposes of paragraphs 12, 13 and 15 (“enhanced protection”) of that Schedule ; and
b
that permitted transfer is to be treated as falling within paragraph 12(8)(c).
Rights to take benefit before normal minimum pension age to continue after the Accrued Rights Transfer
10
1
Paragraphs (2) and (3) apply where —
a
the RMPP was a protected pension scheme under paragraph 22(2) of Schedule 36 in relation to a member; and
b
the Accrued Rights Transfer has taken place.
2
The Transfer is to be treated as a block transfer within the meaning of paragraph 22(6) of Schedule 36 for the purposes of paragraphs 21 and 22 (rights to take benefit before normal minimum pension age) of that Schedule.
3
In relation to the retirement condition in paragraph 22(7) of Schedule 36 —
a
the requirement in paragraph (a) is to be treated as met if the member becomes entitled to all the benefits payable to the member under arrangements under both the RMPP and the new public scheme (to which the member did not have an actual entitlement on or before 5th April 2006) on the same date; and
b
in respect of the requirement in paragraph (b), direct or indirect references to a sponsoring employer in Condition 1, 2 or 3 in sub-paragraphs (7A), (7B), (7C) or (7E) (as the case may be) are to be read as references to a sponsoring employer of the RMPP.
Entitlement to lump sums exceeding 25% of uncrystallised rights to continue after the Accrued Rights Transfer
11
1
Paragraph (2) applies where —
a
the RMPP was a protected pension scheme under paragraph 31(4) of Schedule 36 in relation to a member; and
b
the Accrued Rights Transfer has taken place.
2
The Transfer is to be treated as a block transfer within the meaning of paragraph 22(6) of Schedule 36 for the purposes of paragraphs 31 to 34 (entitlement to lump sums exceeding 25% of uncrystallised rights) of that Schedule.
Transitional protection for stand-alone lump sums to continue after the Accrued Rights Transfer
12
1
Paragraph (2) applies where —
a
the RMPP was entitled to pay a stand-alone lump sum under article 25(3) (stand-alone lump sums: definition) of the Transitional Provisions Order to an individual which, if it had been paid, would have been a stand-alone lump sum paid in circumstances where article 25B(4) (circumstance C) applied; and
b
the Accrued Rights Transfer has taken place.
2
The Transfer is to be treated as a block transfer within the meaning of paragraph 22(6) of Schedule 36 for the purposes of article 25D(4)(c) of the Transitional Provisions Order.
Transitional protection for continued life cover (75+) to continue after the Accrued Rights Transfer
13
1
Paragraph (2) applies where —
a
the conditions A to C and E in article 6 of the Transitional Provisions Order were satisfied in relation to a member of the RMPP; and
b
the Accrued Rights Transfer has taken place.
2
Conditions A to C and E in article 6 of the Transitional Provisions Order are to be treated as satisfied in respect of the new public scheme and the RMPP.
3
Condition D in article 6 of the Transitional Provisions Order is to be treated as satisfied in respect of the new public scheme where the rules of that scheme in relation to life cover lump sums are the same as the equivalent rules of the RMPP relating to those sums on 10th December 2003.
Transitional protection in relation to dependants’ scheme pension limit to continue after the Accrued Rights Transfer
14
1
Paragraph (2) applies where —
a
a member of the RMPP in respect of whom a dependants’ scheme pension is payable was actually entitled to one or more relevant existing pensions, as defined in paragraph 10(2) of Schedule 36, under that scheme on 5th April 2006; and
b
the Accrued Rights Transfer has taken place.
2
The transitional protection afforded by article 24 (disapplication of dependants’ scheme pension limit) of the Transitional Provisions Order applies to a dependants’ scheme pension payable under the new public scheme in respect of that member.
Transitional provision in relation to serious ill-health lump sums and pension protection lump sum death benefits to continue after the Accrued Rights Transfer
15
1
Paragraphs (3) and (5) appl y where —
a
the Accrued Rights Transfer has taken place; and
b
the requirements in paragraph (2) are met.
2
The requirements are that, in relation to article 33(2) (serious ill-health lump sums, pension protection lump sum death benefits and annuity protection lump sum death benefits) of the Transitional Provisions Order —
a
condition A was met in respect of an individual in relation to the RMPP immediately before the Accrued Rights Transfer; and
b
condition B had been met in respect of that individual in relation to the RMPP.
3
Article 33(3) (modification of paragraph 4(2) of Schedule 29 (serious ill-health lump sum)) of the Transitional Provisions Order is to be treated as applying to the new public scheme subject to the modification in paragraph (4).
4
A pension paid by the new public scheme is to be treated as a relevant existing pension, as defined by paragraph 10(2) of Schedule 36, if it would have been a relevant existing pension had it been paid by the RMPP.
5
Article 33(4) (modification of paragraph 14(3) of Schedule 29 (pension protection lump sum death benefit)) of the Transitional Provisions Order is to be treated as applying to the new public scheme as if it provided as follows —
4
In paragraph 14(3) of Schedule 29 (pension protection lump sum death benefit) —
a
for the definition of “AC” substitute —
AC is the value of the individual’s pre-commencement pension rights under the RMPP as defined in paragraph 20(3) and (5) of Schedule 36
,
b
for the definition of “AP” substitute —
AP is the aggregate of the amounts of pension paid —
a
under the RMPP in respect of the period before the Accrued Rights Transfer, and
b
under the new public scheme in respect of the period on and after the day on which the Accrued Rights Transfer takes place,
between 6th April 2006 and the member’s death.
, and
c
for the definition of TPLS substitute —
TPLS is the total amount of pension protection lump sum death benefit previously paid in respect of the pension paid under —
a
the RMPP in respect of the period before the Accrued Rights Transfer, and
b
the new public scheme in respect of the period on and after the day on which the Accrued Rights Transfer takes place.
.
Transitional protection in relation to payments to children aged 23 or over to continue after the Accrued Rights Transfer
16
1
Paragraph (2) applies where the Accrued Rights Transfer has resulted in the transfer from the RMPP to the new public scheme of Accrued Rights in respect of which article 34 (payments to children aged 23 or over) of the Transitional Provisions Order applied.
2
The Transfer is to be treated as a block transfer within the meaning of article 34B(4) for the purposes of article 34(6).
17
1
Paragraph (2) applies where the Accrued Rights Transfer has resulted in the transfer from the RMPP to the new public scheme of Accrued Rights in respect of which article 34A (payments to financially dependent children aged 23 or over) of the Transitional Provisions Order applied.
2
The Transfer is to be treated as a block transfer within the meaning of article 34B(4) for the purposes of article 34A(5).
18
1
Paragraph (2) applies where —
a
Condition D in article 34A(3) of the Transitional Provisions Order was met in relation to a pension death benefit payable in respect of a member of the RMPP so that article 34A was capable of applying to the payment of a pension death benefit; and
b
the Accrued Rights Transfer has taken place.
2
The Transfer is to be treated as a block transfer within the meaning of article 34B(4) for the purpose of article 34A(5).
Transitional protection in relation to lump sum death benefits to continue after the Accrued Rights Transfer
19
1
Paragraph (2) applies where —
a
the Accrued Rights Transfer has resulted in the transfer from the RMPP to the new public scheme of Accrued Rights in respect of a member; and
b
after the Accrued Rights Transfer a lump sum is paid under the new public scheme in respect of the death of that member which —
i
meets the condition in sub-paragraph (b) of article 40(1) (lump sum death benefits — death of member) in respect of the administrator of the RMPP for the period before the Accrued Rights Transfer and in respect of the administrator of the new public scheme for the period on and after the day on which the Accrued Rights Transfer takes place; and
ii
had the Transfer not taken place, would have met the conditions in sub-paragraphs (a) and (c) to (e) of article 40(1) of the Transitional Provisions Order.
2
Article 40(2) is to be treated as applying to the payment of the lump sum under the new public scheme.
CHAPTER 3
Miscellaneous provisions
Liability of scheme administrator of the new public scheme in respect of an individual’s annual allowance charge for the tax year in which the Accrued Rights Transfer takes place
20
1
Paragraph (2) applies where —
a
the Accrued Rights Transfer has taken place; and
b
the requirements in section 237B(1) (liability of scheme administrator) are met in respect of an individual in relation to the RMPP for the tax year in which the Accrued Rights Transfer took place.
2
The Transfer is to be treated as a transfer of all the sums or assets held for the purposes of, or representing accrued rights under, the RMPP so as to become held for the purposes of, or to represent rights under, the new public scheme within the meaning of section 237B(9).
Transitional protection under paragraph 14 of Schedule 18 to the Finance Act 2011 (“fixed protection”) to continue after the Accrued Rights Transfer
21
1
Paragraphs (2) and (3) apply where —
a
the Accrued Rights Transfer has resulted in the transfer from the RMPP to the new public scheme of Accrued Rights in respect of an individual —
i
who was an active member of the RMPP immediately before the Accrued Rights Transfer; and
ii
to whom paragraph 14 (lifetime allowance charge: transitional provision) of Schedule 18 to the Finance Act 2011 applies.
2
In paragraph 14(13) —
a
paragraph (a) is disapplied; and
b
for paragraph (b) substitute —
b
the percentage by which the retail prices index for the month of September in the previous tax year is higher than it was for the same month in the period of 12 months (or nil per cent if it is not higher).
3
The “retail prices index” means —
a
the general index of retail prices (for all items) published by the Statistics Board; or
b
if that index is not published for the relevant month, any substituted index or index figures published by the Statistics Board.
Calculation of pension input amount where there is an adjustment to benefit entitlement after the Accrued Rights Transfer
22
1
Paragraph (2) applies where —
a
the Accrued Rights Transfer has resulted in the transfer from the RMPP to the new public scheme of Accrued Rights; and
b
as a result of the Transfer there is an adjustment to reduce the entitlement of an individual to benefits under the new public scheme and a corresponding adjustment to increase the entitlement of that individual to benefits under the RMPP.
2
The adjustment and corresponding adjustment referred to in subsection (1)(b) are to be disregarded when arriving at the pension input amount for the RMPP and the new public scheme under sections 234 to 236A (pension input amount: defined benefits arrangements) .
Provision in relation to double taxation relief arrangements
23
1
Paragraph (2) applies where —
a
immediately prior to the Accrued Rights Transfer a member of the RMPP had pensionable service in respect of the period prior to 1st October 1969;
b
at any time after the Accrued Rights Transfer the recipient of a pension in respect of that member is resident outside the United Kingdom in a country which has entered into a double taxation relief arrangement with the United Kingdom; and
c
as a result of the Transfer, there has been a change to the tax treatment of the pension payable in respect of that member in the new scheme under that double taxation relief arrangement.
2
The tax charged under Chapter 5A (pensions under registered pension schemes) of Part 9 of the Income Tax (Earnings and Pensions) Act 2003 in respect of the member’s pension under the new public scheme must not exceed the tax which would have been charged in respect of that pension under that section had the pension been paid by the RMPP.
3
For the purposes of this regulation, a “double taxation relief arrangement” means an arrangement that has effect under section 2(1) of the Taxation (International and Other Provisions) Act 2010 .
Further protection in relation to changes to tax treatment of Accrued Rights as a result of the Transfer
24
1
Paragraph 2 applies where —
a
the Accrued Rights Transfer has resulted in the transfer from the RMPP to the new public scheme of Accrued Rights in respect of a member;
b
as a result of the Transfer, there has been a change to the tax treatment of one or both of the following —
i
those Accrued Rights under the new public scheme;
ii
the member’s rights under the RMPP; and
c
no other provision in these Regulations applies to that change.
2
The tax charged under the provisions in paragraph (3) in respect of the member’s Accrued Rights under the new public scheme and the member’s rights under the RMPP must not exceed the tax which would have been charged under those provisions in respect of those rights had the Transfer not taken place.
3
The provisions are —
a
section 208 (unauthorised payments charge) ;
b
section 209 (unauthorised payments surcharge) in relation to surchargeable unauthorised member payments within the meaning of section 210 ;
c
section 214 (lifetime allowance charge) ;
d
section 227 (annual allowance charge) ; and
e
Chapter 5A of Part 9 of the Income Tax (Earnings and Pensions) Act 2003.
PART 4 Stamp Duty, Stamp Duty Land Tax and Stamp Duty Reserve Tax
Stamp Duty
25
Stamp duty is not chargeable on an instrument making or executing the Assets Transfer.
Stamp Duty Land Tax
26
A land transaction entered into on, or in consequence of, or in connection with, the Assets Transfer is exempt from the charge to stamp duty land tax.
27
A land transaction entered into on, or in consequence of, or in connection with, the Assets Transfer is not a notifiable transaction within the meaning of section 77 of the Finance Act 2003 .
Stamp Duty Reserve Tax
28
Stamp duty reserve tax is not chargeable on an agreement to transfer chargeable securities made in relation to, in connection with, or by or under, the Assets Transfer.
Michael Fabricant
James Duddridge
Two of the Lords Commissioners of Her Majesty’s Treasury
8th March 2012 |
The Sexual Offences Act 2003 (Notification Requirements) (England and Wales) Regulations 2012
In accordance with section 138(2) of that Act, a draft of these Regulations was laid before and approved by a resolution of each House of Parliament.
Citation, commencement and extent
1
1
These Regulations may be cited as the Sexual Offences Act 2003 (Notification Requirements) (England and Wales) Regulations 2012.
2
These Regulations come into force 28 days after the day on which they are made.
3
These Regulations extend to England and Wales only.
Interpretation
2
In these Regulations —
“the 2003 Act ” means the Sexual Offences Act 2003;
“the 2004 Regulations ” means the Sexual Offences Act 2003 (Travel Notification Requirements) Regulations 2004 ;
“banking institution” means a bank, building society or other institution which provides banking services;
“business” includes any trade, profession or vocation;
“child” means a person aged under 18 years;
“credit card” means a card which is a credit-token within the meaning of section 14(1)(b) of the Consumer Credit Act 1974 ;
“credit card provider” means a bank, building society or other institution which provides a credit card;
“debit card” means a card the use of which by its holder to make a payment results in a current account of the holder at a banking institution being debited with the payment;
“identity document” has the same meaning as in the Identity Documents Act 2010 but does not include a stamp or label; and
“relevant household” means a household or other place —
where a child resides or stays, and
to which the public do not have access (whether for payment or not).
Transitional provision: travel notification requirements
3
A relevant offender who intends to leave the United Kingdom for a period of less than three days is not required to give notification in accordance with regulation 5(1) of the 2004 Regulations if his intended date of departure is on or before the date 14 days after these Regulations come into force.
Amendment of the Sexual Offences Act 2003 (Travel Notification Requirements) Regulations 2004
4
The 2004 Regulations are amended in accordance with regulations 5 to 8 of these Regulations.
5
In regulation 5 of the 2004 Regulations —
a
in paragraph (1) omit “for a period of three days or longer”;
b
in paragraph (3) for “24 hours” substitute “12 hours”.
6
For regulation 6 of the 2004 Regulations substitute —
Information to be disclosed in a notification under section 86(2)
6
In addition to the information required by section 86(2)(a) and (b), a relevant offender to whom these Regulations apply must disclose, where he holds such information —
a
where he intends to travel to more than one country outside the United Kingdom, his intended point of arrival in each such additional country,
b
the dates on which he intends to stay in any country to which he intends to travel,
c
details of his accommodation arrangements in any country to which he intends to travel,
d
the identity of any carrier or carriers he intends to use for the purposes of his departure from and return to the United Kingdom, and of travelling to any other point of arrival,
e
in a case in which he intends to return to the United Kingdom on a particular date, that date, and
f
in a case in which he intends to return to the United Kingdom at a particular point of arrival, that point of arrival.
.
7
In regulation 7 of the 2004 Regulations —
a
in paragraph (2) for “24 hours” substitute “12 hours”;
b
after paragraph (2) add —
3
The relevant offender may not give notification under paragraph (2) less than 24 hours before the date of his intended departure unless he has a reasonable excuse for being unable to give such notification before that time.
.
8
In regulation 8 of the 2004 Regulations —
a
in paragraph (3)(a) for “6(d)” substitute “6(e)”;
b
in paragraph (3)(b) for “6(e)” substitute “6(f)”.
Periodic notification of address where there is no sole or main residence
9
For the purposes of section 85(5)(a) of the 2003 Act, the applicable period means the period of seven days.
Notification to be given by relevant offender residing or staying at a relevant household
10
1
The information set out in paragraph (2) is prescribed for the purposes of section 83(5)(h) of the 2003 Act in a case where a relevant offender (R) resides, or stays for a period of at least 12 hours, at a relevant household.
2
The information which R must notify is —
a
the date on which R begins to reside or stay at a relevant household,
b
the address of the relevant household, and
c
where R holds such information, the period or periods for which R intends to reside or stay at the relevant household.
11
1
The changes in circumstances set out in paragraph (2) are prescribed for the purposes of section 84(1)(ca) of the 2003 Act.
2
The changes of circumstance are where the relevant offender (R) —
a
resides, or stays for a period of at least 12 hours, at a relevant household in relation to which there has been no notification under section 83(1);
b
ceases to reside or stay at a relevant household in relation to which there has been a notification under section 83(1).
3
A notification given under section 84(1) of the 2003 Act must disclose the date from which R resides or stays, or the date on which R ceases to reside or stay, at a relevant household.
Notification of information about bank accounts and credit cards
12
1
The information set out in paragraphs (2) to (7) is prescribed for the purposes of section 83(5)(h) of the 2003 Act in a case where a relevant offender (R) holds —
a
an account with a banking institution in R’s name, or in R’s name and the name of another person, and in relation to each such account, the information specified in paragraph (2);
b
an account with a banking institution in the name of an unincorporated business which is run by R, or run by R and another person, and in relation to each such account, the information specified in paragraph (3);
c
a debit card in relation to any account of which notification is given in accordance with sub-paragraph (a) or (b), and in relation to each such debit card, the information specified in paragraph (4);
d
an account with a credit card provider in R’s name, or in R’s name and the name of another person, and in relation to each such account, the information specified in paragraph (5);
e
an account with a credit card provider in the name of an unincorporated business which is run by R, or run by R and another person, and in relation to each such account, the information specified in paragraph (6); or
f
a credit card in relation to any account of which notification is given in accordance with sub-paragraph (d) or (e), and in relation to each such credit card, the information specified in paragraph (7).
2
The information specified for the purposes of paragraph (1)(a) is —
a
the name of each banking institution with which R holds an account;
b
the address of the office at which each account is held and, if that office is outside the United Kingdom, the address of the principal office in the United Kingdom (if any) of the banking institution;
c
the number of each account; and
d
the sort code in relation to each account.
3
The information specified for the purposes of paragraph (1)(b) is —
a
the information specified in paragraph (2); and
b
the name of the business in whose name the account is held.
4
The information specified for the purposes of paragraph (1)(c) is —
a
the card number in relation to each debit card;
b
the validation date of each debit card;
c
the expiry date of each debit card; and
d
the name of the business (if any) in whose name the card is held.
5
The information specified for the purposes of paragraph (1)(d) is —
a
the name of each credit card provider with which R holds an account;
b
the address of the office at which each account is held and, if that office is outside the United Kingdom, the address of the principal office in the United Kingdom (if any) of the credit card provider; and
c
the number of each account.
6
The information specified for the purposes of paragraph (1)(e) is —
a
the information specified in paragraph (5); and
b
the name of the business in whose name the card is held.
7
The information specified for the purposes of paragraph (1)(f) is —
a
the card number in relation to each credit card;
b
the validation date of each credit card;
c
the expiry date of each credit card; and
d
the name of the business (if any) in whose name the card is held.
13
1
The changes in circumstances set out in paragraph (2) are prescribed for the purposes of section 84(1)(ca) of the 2003 Act.
2
The changes of circumstance are where —
a
an account which a relevant offender (R) holds with a banking institution, as specified in regulation 12(1)(a) or (b), has been —
i
opened, or
ii
closed;
b
a debit card R holds in relation to any account specified in regulation 12(1)(a) or (b) —
i
has been obtained by R, or
ii
is no longer held by R;
c
an account R holds with a credit card provider, as specified in regulation 12(1)(d) or (e), has been —
i
opened, or
ii
closed;
d
a credit card R holds in relation to any account specified in regulation 12(1)(d) or (e) —
i
has been obtained by R, or
ii
is no longer held by R;
e
any information previously notified by R under regulation 12(1) has —
i
altered, or
ii
become inaccurate or incomplete.
3
A notification given under section 84(1) of the 2003 Act must include the information specified in regulation 12(2) to (7) in relation to that account, or debit or credit card.
Notification of information about passport or other form of identification
14
1
The information set out in paragraph (2) is prescribed for the purposes of section 83(5)(h) of the 2003 Act in a case where a relevant offender (R) holds any passport, other identity document or (in a case where R does not hold any passport or other identity document) any other document in which R’s full name appears.
2
The information which R must notify is —
a
where R holds any passport, and in relation to each passport R holds —
i
the passport number, and
ii
R’s full name as it appears in the passport;
b
where R does not hold a passport, in relation to any other identity document R holds —
i
the description of the identity document,
ii
the issue number (if any) of the identity document, and
iii
R’s full name as it appears in the identity document;
c
where R does not hold a passport or other identity document, in relation to another document R holds —
i
the description of the document (including the name of any issuing authority),
ii
the issue number (if any) of the document; and
iii
R’s full name as it appears in the document.
15
1
The changes in circumstances set out in paragraph (2) are prescribed for the purposes of section 84(1)(ca) of the 2003 Act.
2
The changes of circumstance are where the relevant offender —
a
obtains a passport, other identity document or other document in relation to which there has been no notification under section 83(1); and
b
ceases to hold a passport, other identity document or other document in relation to which there has been a notification under section 83(1).
Lynne Featherstone
Parliamentary Under Secretary of State
Home Office
16th July 2012 |
The Equality Act 2010 (Amendment) Order 2012
The Secretary of State, being a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to discrimination , makes the following Order in exercise of the powers conferred by that section:
Citation, commencement and extent
1
1
This Order may be cited as the Equality Act 2010 (Amendment) Order 2012.
2
This Order comes into force on 6th April 2012.
3
This Order extends to England and Wales and Scotland.
Amendment of section 147 of the Equality Act 2010
2
1
Section 147 of the Equality Act 2010 (meaning of “qualifying compromise contract”) is amended in accordance with paragraphs (2) and (3).
2
In subsection (5), after “independent adviser” insert “to the complainant”.
3
In subsection (5)(a), after “person” insert “(other than the complainant)”.
Theresa May
Secretary of State for the Home Department
8th February 2012 |
The Easton and Otley College (Government) Regulations 2012
The Secretary of State for Business, Innovation and Skills makes the following Regulations in exercise of the powers conferred by sections 20(2) and 21(1) of, and Schedule 4 to, the Further and Higher Education Act 1992 .
1
These Regulations may be cited as the Easton and Otley College (Government) Regulations 2012 and come into force on 31st July 2012.
2
The instrument of government and articles of government of the further education corporation called Easton and Otley College are set out in Schedules 1 and 2 to these Regulations respectively.
John Hayes
Minister of State for Further Education, Skills and Lifelong Learning
Department for Business, Innovation and Skills
4th July 2012
SCHEDULE 1
INSTRUMENT OF GOVERNMENT
Regulation 2
Contents
1
Interpretation of the terms used
2
Composition of the Corporation
3
Initial Appointments
4
Determination of membership numbers
5
Appointment of the members of the Corporation
6
Appointment of the Chair and Vice-Chair
7
Appointment of the Clerk to the Corporation
8
Persons who are ineligible to be members
9
The term of office of a member
10
Termination of membership
11
Members not to hold interests in matters relating to the institution
12
Meetings
13
Quorum
14
Proceedings of meetings
15
Minutes
16
Public access to meetings
17
Publication of minutes and papers
18
Copies of the Instrument of Government
19
Change of name of the Corporation
20
Application of the seal
Interpretation of the terms used
1
In this Instrument of Government —
a
any reference to “the Principal” shall include a person acting as Principal;
b
“the Clerk” means the Clerk to the Corporation;
c
“the Corporation” means the further education corporation established under the name of “Easton and Otley College”;
d
“the institution” means Easton and Otley College and any institution for the time being conducted by the Corporation in exercise of its powers under the Further and Higher Education Act 1992 (“ the Act ”);
e
“this Instrument” means this Instrument of Government;
f
“meeting” includes a meeting at which the members attending are present in more than one room, provided that by the use of video-conferencing facilities it is possible for every person present at the meeting to communicate with each other;
g
“necessary skills” means skills and experience, other than professional qualifications, specified by the Corporation as appropriate for members to have;
h
“staff member” and “student member” have the meanings given to them in clause 2;
i
“the Secretary of State” means the Secretary of State for Business, Innovation and Skills;
j
“staff matters” means the remuneration, conditions of service, promotion, conduct, suspension, dismissal or retirement of staff;
k
“the students’ union” means any association of students formed to further the educational purposes of the institution and the interests of students, as students;
l
a “variable category” means any category of members whose numbers may vary according to clauses 2 .
Composition of the Corporation
2
1
The Corporation shall consist of —
a
up to sixteen members who appear to the Corporation to have the necessary skills to ensure that the Corporation carries out its functions under article 3 of the Articles of Government;
b
the Principal of the institution, unless the Principal chooses not to be a member;
c
at least one and not more than three members who are members of the institution’s staff and have a contract of employment with the institution and who have been nominated and elected as set out in paragraph (3), (4) or (5) (“staff members”); and
d
at least two and not more than three members who are students at the institution and have been nominated and elected by their fellow students, or if the Corporation so decides, by a recognised association representing such students (“student members”).
2
A person who is not for the time being enrolled as a student at the institution, shall nevertheless be treated as a student during any period of authorised absence from the institution for study, travel or for carrying out the duties of any office held by that person in the institution’s students’ union.
3
Where the Corporation has decided or decides that there is to be one staff member; the member may be a member of the academic staff or the non-academic staff and shall be nominated and elected by all staff.
4
Where the Corporation has decided or decides that there are to be two staff members —
a
one may be a member of the academic staff, nominated and elected only by academic staff; and the other may be a member of the non-academic staff, nominated and elected only by non-academic staff, or
b
each may be a member of the academic or non-academic staff, nominated and elected by all staff.
5
Where the Corporation has decided that there are to be three staff members —
a
all may be members of the academic or non-academic staff, nominated and elected by all staff,
b
one may be a member of the academic or the non-academic staff, nominated and elected by all staff, one may be a member of the academic staff, nominated and elected by academic staff only, and one may be a member of the non-academic staff nominated and elected by non-academic staff only,
c
two may be members of the academic staff, nominated and elected by academic staff only, and one may be a member of the non-academic staff, nominated and elected by non-academic staff only, or
d
one may be a member of the academic staff, nominated and elected by academic staff only, and two may be members of the non-academic staff, nominated and elected by non-academic staff only.
6
The appointing authority, as set out in clause 5, will decide whether a person is eligible for nomination, election and appointment as a member of the Corporation under paragraph (1).
Initial Appointments
3
1
The Secretary of State is the appointing authority for the purpose of this Instrument in relation to the appointment of the first members of the Corporation.
2
In determining the number of members to appoint, he shall secure that that number shall be the number needed for a quorum.
Determination of membership numbers
4
1
The number of members of the Corporation and the number of members of each variable category shall be that decided by the Corporation at its first meeting.
2
The Corporation may at any time vary the determination referred to in paragraph (1) and any subsequent determination under this paragraph.
3
Any determination under paragraphs (1) or (2) must be such that —
a
the number of members of the Corporation shall not be less than twelve or more than twenty; and
b
the numbers of members of each variable category shall be subject to the limit which applies to that category set out in clause 2.
4
No determination under this clause shall terminate the appointment of any person who is already a member of the Corporation at the time when the determination is made.
Appointment of the members of the Corporation
5
1
Subject to paragraph (2) the Corporation is the appointing authority in relation to the appointment of its members at any time after the appointment by the Secretary of State of the first members.
2
If the number of members falls below the number needed for a quorum, the Secretary of State is the appointing authority in relation to the appointment of those members needed for a quorum.
3
The appointing authority may decline to appoint a person as a staff or student member if —
a
it is satisfied that the person has been removed from office as a member of a further education corporation in the previous ten years; or
b
the appointment of the person would contravene any rule or bye-law made under article 23 of the Articles of Government concerning the number of terms of office which a person may serve, provided that such rules or bye-laws make the same provision for each category of members appointed by the appointing authority; or
c
the person is ineligible to be a member of the corporation because of clause 8.
4
Where the office of any member becomes vacant the appointing authority shall as soon as practicable take all necessary steps to appoint a new member to fill the vacancy.
Appointment of the Chair and Vice-Chair
6
1
The members of the Corporation shall appoint a Chair and a Vice-Chair from among themselves.
2
Neither the Principal nor any staff or student member shall be eligible to be appointed as Chair or Vice-Chair or to act as Chair in their absence.
3
If both the Chair and the Vice-Chair are absent from any meeting of the Corporation, the members present shall choose someone from among themselves to act as Chair for that meeting.
4
The Chair and Vice-Chair shall hold office for such period as the Corporation decides.
5
The Chair or Vice-Chair may resign from office at any time by giving notice in writing to the Clerk.
6
If the Corporation is satisfied that the Chair is unfit or unable to carry out the functions of office, it may give written notice, removing the Chair from office and the office shall then be vacant.
7
If the Corporation is satisfied that the Vice-Chair is unfit or unable to carry out the functions of office, it may give written notice, removing the Vice-Chair from office and the office shall then be vacant.
8
At the last meeting before the end of the term of office of the Chair, or at the first meeting following the Chair’s resignation or removal from office, the members shall appoint a replacement from among themselves.
9
At the last meeting before the end of the term of office of the Vice-Chair, or at the first meeting following the Vice-Chair’s resignation or removal from office, the members shall appoint a replacement from among themselves.
10
At the end of their respective terms of office, the Chair and Vice-Chair shall be eligible for reappointment.
11
Paragraph (10) is subject to any rule or bye-law made by the Corporation under article 23 of the Articles of Government concerning the number of terms of office which a person may serve.
Appointment of the Clerk to the Corporation
7
1
The Corporation shall appoint a person to serve as its Clerk, but the Principal may not be appointed as Clerk.
2
In the temporary absence of the Clerk, the Corporation shall appoint a person to serve as a temporary Clerk, but the Principal may not be appointed as temporary Clerk.
3
Any reference in this Instrument to the Clerk shall include a temporary Clerk appointed under paragraph (2).
4
Subject to clause 14, the Clerk shall be entitled to attend all meetings of the Corporation and any of its committees.
5
The Clerk may also be a member of staff at the institution.
Persons who are ineligible to be members
8
1
No one under the age of 18 years may be a member, except as a student member.
2
The Clerk may not be a member.
3
A person who is a member of staff of the institution may not be, or continue as, a member, except as a staff member or in the capacity of Principal.
4
Paragraph (3) does not apply to a student who is employed by the Corporation in connection with the student’s role as an officer of a students’ union.
5
Subject to paragraphs (6) and (7), a person shall be disqualified from holding, or from continuing to hold, office as a member, if that person has been adjudged bankrupt, or is the subject of a bankruptcy restrictions order, an interim bankruptcy restrictions order. or a bankruptcy restrictions undertaking within the meaning of the Insolvency Act 1986 , or if that person has made a composition or arrangement with creditors, including an individual voluntary arrangement.
6
Where a person is disqualified by reason of having been adjudged bankrupt or by reason of being the subject of a bankruptcy restrictions order, an interim bankruptcy restrictions order or a bankruptcy restrictions undertaking, that disqualification shall cease —
a
on that person’s discharge from bankruptcy, unless the bankruptcy order has before then been annulled; or
b
if the bankruptcy order is annulled, at the date of that annulment; or
c
if the bankruptcy restrictions order is rescinded as a result of an application under section 375 of the Insolvency Act 1986, on the date so ordered by the court; or
d
if the interim bankruptcy restrictions order is discharged by the court, on the date of that discharge; or
e
if the bankruptcy restrictions undertaking is annulled, at the date of that annulment.
7
Where a person is disqualified by reason of having made a composition or arrangement with creditors, including an individual voluntary arrangement, and then pays the debts in full, the disqualification shall cease on the date on which the payment is completed and in any other case it shall cease on the expiration of three years from the date on which the terms of the deed of composition, arrangement or individual voluntary arrangement are fulfilled.
8
Subject to paragraph (9), a person shall be disqualified from holding, or from continuing to hold, office as a member if —
a
within the previous five years that person has been convicted, whether in the United Kingdom or elsewhere, of any offence and has received a sentence of imprisonment, whether suspended or not, for a period of three months or more, without the option of a fine; or
b
within the previous twenty years that person has been convicted as set out in sub-paragraph (a) and has received a sentence of imprisonment, whether suspended or not, for a period of more than two and a half years; or
c
that person has at any time been convicted as set out in sub-paragraph (a) and has received a sentence of imprisonment, whether suspended or not, of more than five years.
9
For the purpose of this clause there shall be disregarded any conviction by or before a court outside the United Kingdom for an offence in respect of conduct which, if it had taken place in the United Kingdom, would not have constituted an offence under the law then in force anywhere in the United Kingdom.
10
Upon a member of the Corporation becoming disqualified from continuing to hold office under paragraph (5) or (8), the member shall immediately give notice of that fact to the Clerk.
The term of office of a member
9
1
A member of the Corporation shall hold and vacate office in accordance with the terms of the appointment, but the length of the term of office shall not exceed four years.
2
Members retiring at the end of their term of office shall be eligible for reappointment, and clause 5 shall apply to the reappointment of a member as it does to the appointment of a member.
3
Paragraph (2) is subject to any rule or bye-law made by the Corporation under article 23 of the Articles of Government concerning the number of terms of office which a person may serve.
Termination of membership
10
1
A member may resign from office at any time by giving notice in writing to the Clerk.
2
If at any time the Corporation is satisfied that any member —
a
is unfit or unable to discharge the functions of a member; or
b
has been absent from meetings of the Corporation for a period longer than six consecutive months without the permission of the Corporation,
the Corporation may by notice in writing to that member remove the member from office and the office shall then be vacant.
3
Any person who is a member of the Corporation by virtue of being a member of the staff at the institution, including the Principal, shall cease to hold office upon ceasing to be a member of the staff and the office shall then be vacant.
4
A student member shall cease to hold office —
a
at the end of the student’s final academic year, or at such other time in the year after ceasing to be a student as the Corporation may decide; or
b
if expelled from the institution,
and the office shall then be vacant.
Members not to hold interests in matters relating to the institution
11
1
A member to whom paragraph (2) applies shall —
a
disclose to the Corporation the nature and extent of the interest; and
b
if present at a meeting of the Corporation, or of any of its committees, at which such supply, contract or other matter as is mentioned in paragraph (2) is to be considered, not take part in the consideration or vote on any question with respect to it and not be counted in the quorum present at the meeting in relation to a resolution on which that member is not entitled to vote; and
c
withdraw, if present at a meeting of the Corporation, or any of its committees, at which such supply, contract or other matter as is mentioned in paragraph (2) is to be considered, where required to do so by a majority of the members of the Corporation or committee present at the meeting.
2
This paragraph applies to a member who —
a
has any financial interest in —
i
the supply of work to the institution, or the supply of goods for the purposes of the institution;
ii
any contract or proposed contract concerning the institution; or
iii
any other matter relating to the institution; or
b
has any other interest of a type specified by the Corporation in any matter relating to the institution.
3
This clause shall not prevent the members considering and voting upon proposals for the Corporation to insure them against liabilities incurred by them arising out of their office or the Corporation obtaining such insurance and paying the premium.
4
Where the matter under consideration by the Corporation or any of its committees relates to the pay and conditions of all staff, or all staff in a particular class, a staff member —
a
need not disclose a financial interest; and
b
may take part in the consideration of the matter, vote on any question with respect to it and count towards the quorum present at that meeting, provided that in so doing, the staff member acts in the best interests of the Corporation as a whole and does not seek to represent the interests of any other person or body, but
c
shall withdraw from the meeting if the matter is under negotiation with staff and the staff member is representing any of the staff concerned in those negotiations.
5
The Clerk shall maintain a register of the interests of the members which have been disclosed and the register shall be made available during normal office hours at the institution to any person wishing to inspect it.
Meetings
12
1
The Corporation shall meet at least once in every term, and shall hold such other meetings as may be necessary.
2
Subject to paragraphs (4) and (5) and to clause 13(4), all meetings shall be called by the Clerk, who shall, at least seven calendar days before the date of the meeting, send to the members of the Corporation written notice of the meeting and a copy of the proposed agenda.
3
If it is proposed to consider at any meeting the remuneration, conditions of service, conduct, suspension, dismissal or retirement of the Clerk, the Chair shall, at least seven calendar days before the date of the meeting, send to the members a copy of the agenda item concerned, together with any relevant papers.
4
A meeting of the Corporation, called a “special meeting”, may be called at any time by the Chair or at the request in writing of any five members.
5
Where the Chair, or in the Chair’s absence the Vice-Chair, decides that there are matters requiring urgent consideration, the written notice convening the special meeting and a copy of the proposed agenda may be given within less than seven calendar days.
6
Every member shall act in the best interests of the Corporation and shall not be bound to speak or vote by mandates given by any other body or person.
Quorum
13
1
Until the first determination of the number of members under clause 4, meetings of the Corporation shall be quorate if 8 members are present. Subsequent meetings of the Corporation shall be quorate if the number of members present is at least 40% of the total number of members, determined according to clause 4.
2
If the number of members present for a meeting of the Corporation does not constitute a quorum, the meeting shall not be held.
3
If during a meeting of the Corporation there ceases to be a quorum, the meeting shall be terminated at once.
4
If a meeting cannot be held or cannot continue for lack of a quorum, the Chair may call a special meeting as soon as it is convenient.
Proceedings of meetings
14
1
Every question to be decided at a meeting of the Corporation shall be decided by a majority of the votes cast by members present and entitled to vote on the question.
2
Where, at a meeting of the Corporation, there is an equal division of votes on a question to be decided, the Chair of the meeting shall have a second or casting vote.
3
A member may not vote by proxy or by way of postal vote.
4
No resolution of the members may be rescinded or varied at a subsequent meeting unless consideration of the rescission or variation is a specific item of business on the agenda for that meeting.
5
Except as provided by procedures made pursuant to article 16 of the Articles of Government, a member of the Corporation who is a member of staff at the institution, including the Principal, shall withdraw —
a
from that part of any meeting of the Corporation, or any of its committees, at which staff matters relating solely to that member of the staff, as distinct from staff matters relating to all members of staff or all members of staff in a particular class, are to be considered;
b
from that part of any meeting of the Corporation, or any of its committees, at which that member’s reappointment or the appointment of that member’s successor is to be considered;
c
from that part of any meeting of the Corporation, or any of its committees, at which the matter under consideration concerns the pay or conditions of service of all members of staff, or all members of staff in a particular class, where the member of staff is acting as a representative (whether or not on behalf of a recognised trade union) of all members of staff or the class of staff (as the case may be); and
d
if so required by a resolution of the other members present, from that part of any meeting of the Corporation or any of its committees, at which staff matters relating to any member of staff holding a post senior to that member’s are to be considered, except those relating to the pay and conditions of all staff or all staff in a particular class.
6
A Principal who has chosen not to be a member of the Corporation shall still be entitled to attend and speak, or otherwise communicate, at all meetings of the Corporation and any of its committees, except that the Principal shall withdraw in any case where the Principal would be required to withdraw under paragraph (5).
7
A student member who is under the age of 18 shall not vote at a meeting of the Corporation, or any of its committees, on any question concerning any proposal —
a
for the expenditure of money by the Corporation; or
b
under which the Corporation, or any members of the Corporation, would enter into any contract, or would incur any debt or liability, whether immediate, contingent or otherwise.
8
Except as provided by rules made under article 18(3) of the Articles of Government relating to appeals and representations by students in disciplinary cases, a student member shall withdraw from that part of any meeting of the Corporation or any of its committees, at which a student’s conduct, suspension or expulsion is to be considered.
9
In any case where the Corporation, or any of its committees, is to discuss staff matters relating to a member or prospective member of staff at the institution, a student member shall —
a
take no part in the consideration or discussion of that matter and not vote on any question with respect to it; and
b
where required to do so by a majority of the members, other than student members, of the Corporation or committee present at the meeting, withdraw from the meeting.
10
The Clerk —
a
shall withdraw from that part of any meeting of the Corporation, or any of its committees, at which the Clerk’s remuneration, conditions of service, conduct, suspension, dismissal or retirement in the capacity of Clerk are to be considered; and
b
where the Clerk is a member of staff at the institution, the Clerk shall withdraw in any case where a member of the Corporation is required to withdraw under paragraph (5).
11
If the Clerk withdraws from a meeting, or part of a meeting, of the Corporation under paragraph (10), the Corporation shall appoint a person from among themselves to act as Clerk during this absence.
12
If the Clerk withdraws from a meeting, or part of a meeting, of a committee of the Corporation, the Corporation shall appoint a person from among themselves to act as Clerk to the committee during this absence.
Minutes
15
1
Written minutes of every meeting of the Corporation shall be prepared, and, subject to paragraph (2), at every meeting of the Corporation the minutes of the last meeting shall be taken as an agenda item.
2
Paragraph (1) shall not require the minutes of the last meeting to be taken as an agenda item at a special meeting, but where they are not taken, they shall be taken as an agenda item at the next meeting which is not a special meeting.
3
Where minutes of a meeting are taken as an agenda item and agreed to be accurate, those minutes shall be signed as a true record by the Chair of the meeting.
4
Separate minutes shall be taken of those parts of meetings from which staff members, the Principal, student members or the Clerk have withdrawn in accordance with clause 14(5), (6), (8), (9) or (10) and such persons shall not be entitled to see the minutes of that part of the meeting or any papers relating to it.
Public access to meetings
16
The Corporation shall decide any question as to whether a person should be allowed to attend any of its meetings where that person is not a member, the Clerk or the Principal and in making its decision, it shall give consideration to clause 17(2).
Publication of minutes and papers
17
1
Subject to paragraph (2), the Corporation shall ensure that a copy of —
a
the agenda for every meeting of the Corporation;
b
the draft minutes of every such meeting, if they have been approved by the Chair of the meeting;
c
the signed minutes of every such meeting; and
d
any report, document or other paper considered at any such meeting,
shall as soon as possible be made available during normal office hours at the institution to any person wishing to inspect them.
2
There shall be excluded from any item made available for inspection any material relating to —
a
a named person employed at or proposed to be employed at the institution;
b
a named student at, or candidate for admission to, the institution;
c
the Clerk; or
d
any matter which, by reason of its nature, the Corporation is satisfied should be dealt with on a confidential basis.
3
The Corporation shall ensure that a copy of the draft or signed minutes of every meeting of the Corporation, under paragraph (1), shall be placed on the institution’s website, and shall, despite any rules the Corporation may make regarding the archiving of such material, remain on its website for a minimum period of 12 months.
4
The Corporation shall review regularly all material excluded from inspection under paragraph (2)(d) and make any such material available for inspection where it is satisfied that the reason for dealing with the matter on a confidential basis no longer applies, or where it considers that the public interest in disclosure outweighs that reason.
Copies of the Instrument of Government
18
A copy of this Instrument shall be given free of charge to every member of the Corporation and at a charge not exceeding the cost of copying or free of charge to any other person who so requests a copy, and shall be available for inspection at the institution upon request, during normal office hours, to every member of staff and every student at the institution.
Change of name of the Corporation
19
The Corporation may change its name with the approval of the Secretary of State.
Application of the seal
20
The application of the seal of the Corporation shall be authenticated by —
a
the signature of either the Chair or of some other member authorised either generally or specially by the Corporation to act for that purpose; and
b
the signature of any other member.
SCHEDULE 2
ARTICLES OF GOVERNMENT
Regulation 2
Contents
1
Interpretation of the terms used
2
Conduct of the institution
3
Responsibilities of the Corporation, the Principal and the Clerk
4
The establishment of committees and delegation of functions generally
5
The search committee
6
The audit committee
7
Composition of committees
8
Access to committees by non-members and publication of minutes
9.–11
Delegable and non-delegable functions
12.–13
Appointment and promotion of staff
14
Rules relating to the conduct of staff
15
Academic freedom
16
Grievance, suspension and disciplinary procedures
17
Suspension and dismissal of the Clerk
18
Students
19
Financial matters
20
Co-operation with the CE ’s auditor
21
Internal audit
22
Accounts and audit of accounts
23
Rules and bye-laws
24
Copies of Articles of Government and rules and bye-laws
25
Modification or replacement of the Instrument and Articles of Government
26
Dissolution of the Corporation
Interpretation of the terms used
1
In these Articles of Government —
a
any reference to “the Principal” shall include a person acting as Principal;
b
“these Articles” means these Articles of Government;
c
“Chair” and “Vice-Chair” mean respectively the Chair and Vice-Chair of the Corporation appointed under clause 6 of the Instrument of Government;
d
“the Clerk” has the same meaning as in the Instrument of Government;
e
“the Corporation” has the same meaning as in the Instrument of Government;
f
“the CE” means the Chief Executive of Skills Funding;
g
“the institution” has the same meaning as in the Instrument of Government;
h
“staff member” and “student member” have the same meanings as in the Instrument of Government;
i
“senior post” means the post of Principal and such other senior posts as the Corporation may decide for the purposes of these Articles;
j
“the staff” means all the staff who have a contract of employment with the institution;
k
“the students’ union” has the same meaning as in the Instrument of Government.
Conduct of the institution
2
The institution shall be conducted in accordance with the provisions of the Instrument of Government, these Articles, any rules or bye-laws made under these Articles and any trust deed regulating the institution.
Responsibilities of the Corporation, the Principal and the Clerk
3
1
The Corporation shall be responsible for the following functions —
a
the determination and periodic review of the educational character and mission of the institution and the oversight of its activities;
b
publishing arrangements for obtaining the views of staff and students on the determination and periodic review of the educational character and mission of the institution and the oversight of its activities;
c
approving the quality strategy of the institution;
d
the effective and efficient use of resources, the solvency of the institution and the Corporation and safeguarding their assets;
e
approving annual estimates of income and expenditure;
f
the appointment, grading, suspension, dismissal and determination of the pay and conditions of service of the holders of senior posts and the Clerk, including, where the Clerk is, or is to be appointed as, a member of staff, the Clerk’s appointment, grading, suspension, dismissal and determination of pay in the capacity of a member of staff; and
g
setting a framework for the pay and conditions of service of all other staff.
2
Subject to the responsibilities of the Corporation, the Principal shall be the Chief Executive of the institution, and shall be responsible for the following functions —
a
making proposals to the Corporation about the educational character and mission of the institution and implementing the decisions of the Corporation;
b
the determination of the institution’s academic and other activities;
c
preparing annual estimates of income and expenditure for consideration and approval by the Corporation, and the management of budget and resources within the estimates approved by the Corporation;
d
the organisation, direction and management of the institution and leadership of the staff;
e
the appointment, assignment, grading, appraisal, suspension, dismissal and determination, within the framework set by the Corporation, of the pay and conditions of service of staff, other than the holders of senior posts or the Clerk, where the Clerk is also a member of the staff; and
f
maintaining student discipline and, within the rules and procedures provided for within these Articles, suspending or expelling students on disciplinary grounds or expelling students for academic reasons.
3
The Clerk shall be responsible for the following functions —
a
advising the Corporation with regard to the operation of its powers;
b
advising the Corporation with regard to procedural matters;
c
advising the Corporation with regard to the conduct of its business; and
d
advising the Corporation with regard to matters of governance practice.
The establishment of committees and delegation of functions generally
4
1
The Corporation may establish committees for any purpose or function, other than those assigned in these Articles to the Principal or Clerk and may delegate powers to —
a
such committees;
b
the Chair, or in the Chair’s absence, the Vice-Chair; or
c
the Principal.
2
The number of members of a committee and the terms on which they are to hold and to vacate office, shall be decided by the Corporation.
3
The Corporation may also establish committees under collaboration arrangements made with other further education institutions or maintained schools (or with both), and such joint committees shall be subject to any regulations made under section 166 of the Education and Inspections Act 2006 governing such arrangements.
The search committee
5
1
The Corporation shall establish a committee, to be known as the “search committee”, to advise on —
a
the appointment of members (other than as a staff or student member); and
b
such other matters relating to membership and appointments as the Corporation may ask it to.
2
The Corporation shall not appoint any person as a member (other than as a staff or student member) without first consulting and considering the advice of the search committee.
3
The Corporation may make rules specifying the way in which the search committee is to be conducted. A copy of these rules, together with the search committee’s terms of reference and its advice to the Corporation, other than any advice which the Corporation is satisfied should be dealt with on a confidential basis, shall be published on the institution’s website and shall be made available for inspection at the institution by any person during normal office hours.
4
The Corporation shall review regularly all material excluded from inspection under paragraph (3) and shall make any such material available for inspection where it is satisfied that the reason for dealing with the matter on a confidential basis no longer applies, or where it considers that the public interest in disclosure outweighs that reason.
The audit committee
6
1
The Corporation shall establish a committee, to be known as the “audit committee”, to advise on matters relating to the Corporation’s audit arrangements and systems of internal control.
2
The audit committee shall consist of at least three persons and may include members of staff at the institution with the exception of those in senior posts, and shall operate in accordance with any requirements of the CE.
Composition of committees
7
Any committee established by the Corporation, other than the committee referred to in article 10, may include persons who are not members of the Corporation.
Access to committees by non-members and publication of minutes
8
The Corporation shall ensure that —
a
a written statement of its policy regarding attendance at committee meetings by persons who are not committee members; and
b
the minutes of committee meetings, if they have been approved by the Chair of the meeting,
are published on the institution’s website and made available for inspection at the institution by any person, during normal office hours.
Delegable and non-delegable functions
9
The Corporation shall not delegate the following functions —
a
the determination of the educational character and mission of the institution;
b
the approval of the annual estimates of income and expenditure;
c
the responsibility for ensuring the solvency of the institution and the Corporation and for safeguarding their assets;
d
the appointment of the Principal or holder of a senior post;
e
the appointment of the Clerk, (including, where the Clerk is, or is to be, appointed as a member of staff the Clerk’s appointment in the capacity of a member of staff); and
f
the modification or replacement of these Articles.
10
1
The Corporation may not delegate —
a
the consideration of the case for dismissal, and
b
the power to determine an appeal in connection with the dismissal
of the Principal, the Clerk or the holder of a senior post, other than to a committee of members of the Corporation.
2
The Corporation shall make rules specifying the way in which a committee having functions under paragraph (1) shall be established and conducted.
11
The Principal may delegate functions to the holder of any other senior post other than —
a
the management of budget and resources; and
b
any functions that have been delegated to the Principal by the Corporation.
Appointment and promotion of staff
12
1
Where there is a vacancy or expected vacancy in a senior post, the Corporation shall —
a
advertise the vacancy nationally; and
b
appoint a selection panel consisting of —
i
at least five members of the Corporation including the Chair or the Vice-Chair or both, where the vacancy is for the post of Principal; or
ii
the Principal and at least three other members of the Corporation, where the vacancy is for any other senior post.
2
The members of the selection panel shall —
a
decide on the arrangements for selecting the applicants for interview;
b
interview the applicants; and
c
where they consider it appropriate to do so, recommend to the Corporation for appointment one of the applicants they have interviewed.
3
If the Corporation approves the recommendation of the selection panel, that person shall be appointed.
4
If the members of the selection panel are unable to agree on a person to recommend to the Corporation, or if the Corporation does not approve their recommendation, the Corporation may make an appointment itself of a person from amongst those interviewed, or it may require the panel to repeat the steps specified in paragraph (2), with or without first re-advertising the vacancy.
5
Where there is a vacancy in a senior post or where the holder of a senior post is temporarily absent, until that post is filled or the absent post holder returns, a member of staff —
a
may be required to act as Principal or in the place of any other senior post holder; and
b
if so required, shall have all the duties and responsibilities of the Principal or such other senior post holder during the period of the vacancy or temporary absence.
13
The Principal shall have responsibility for selecting for appointment all members of staff other than —
a
senior post holders; and
b
where the Clerk is also to be appointed as a member of staff, the Clerk in the role of a member of staff.
Rules relating to the conduct of staff
14
After consultation with the staff, the Corporation shall make rules relating to their conduct.
Academic freedom
15
In making rules under article 14, the Corporation shall have regard to the need to ensure that academic staff at the institution have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without putting themselves at risk of losing their jobs or any privileges which they may enjoy at the institution.
Grievance, suspension and disciplinary procedures
16
1
After consultation with staff, the Corporation shall make rules setting out —
a
grievance procedures for all staff;
b
procedures for the suspension of all staff; and
c
disciplinary and dismissal procedures for —
i
senior post holders, and
ii
staff other than senior post holders
and such procedures shall be subject to the provisions of articles 3(1)(f), 3(2)(e), 10(1) and 17.
2
Any rules made under paragraph (1)(b) shall include provision that where a person has been suspended without pay, any appeal against such suspension shall be heard and action taken in a timely manner.
3
Any rules made under paragraph (1)(c) shall include provision that where the Corporation considers that it may be appropriate to dismiss a person, a preliminary investigation shall be conducted to examine and determine the case for dismissal.
Suspension and dismissal of the Clerk
17
1
Where the Clerk is also a member of staff at the institution, the Clerk is to be treated as a senior post holder for the purposes of article 16(c).
2
Where the Clerk is suspended or dismissed under article 16, that suspension or dismissal shall not affect the position of the Clerk in the separate role of Clerk to the Corporation.
Students
18
1
Any students’ union shall conduct and manage its own affairs and funds in accordance with a constitution approved by the Corporation and no amendment to, or rescission of, that constitution, in part or in whole, shall be valid unless approved by the Corporation.
2
The students’ union shall present audited accounts annually to the Corporation.
3
After consultation with representatives of the students, the Corporation shall make rules concerning the conduct of students, including procedures for their suspension and expulsion (including expulsion for an unsatisfactory standard of work or other academic reason).
Financial matters
19
The Corporation shall set the policy by which the tuition and other fees payable to it are determined, subject to any terms and conditions attached to grants, loans or other payments paid or made by the CE.
Co-operation with the CE’s auditor
20
The Corporation shall co-operate with any person who has been authorised by the CE to audit any returns of numbers of students or claims for financial assistance and shall give any such person access to any documents or records held by the Corporation, including computer records.
Internal audit
21
1
The Corporation shall, at such times as it considers appropriate, examine and evaluate its systems of internal financial and other control to ensure that they contribute to the proper, economic, efficient and effective use of the Corporation’s resources.
2
The Corporation may arrange for the examination and evaluation mentioned in paragraph (1) to be carried out on its behalf by internal auditors.
3
The Corporation shall not appoint persons as internal auditors to carry out the activities referred to in paragraph (1) if those persons are already appointed as external auditors under article 22.
Accounts and audit of accounts
22
The Corporation shall —
a
keep proper accounts and proper records in relation to the accounts; and
b
prepare a statement of accounts for each financial year of the Corporation.
2
The statement shall —
a
give a true and fair account of the state of the Corporation’s affairs at the end of the financial year and of its income and expenditure in the financial year; and
b
comply with any directions given by the CE as to the information to be contained in it, the manner in which the information is to be presented, the methods and principles according to which it is to be prepared and the time and manner of publication.
3
The accounts and the statement of accounts shall be audited by external auditors appointed by the Corporation in respect of each financial year.
4
The Corporation shall not appoint persons as external auditors in respect of any financial year if those persons are already appointed as internal auditors under article 21.
5
Auditors shall be appointed and audit work conducted in accordance with any requirements of the CE.
6
The “financial year” means the first financial year and, except as provided for in paragraph (8), each successive period of twelve months.
7
The “first financial year” means the period from the date the Corporation was established up to the second 31st July following that date, or up to some other date which has been chosen by the Corporation with the CE’s approval.
8
If the Corporation is dissolved —
a
the last financial year shall end on the date of dissolution; and
b
the Corporation may decide, with the CE’s approval, that what would otherwise be the last two financial years, shall be a single financial year for the purpose of this article.
Rules and bye-laws
23
The Corporation shall have the power to make rules and bye-laws relating to the government and conduct of the institution and these rules and bye-laws shall be subject to the provisions of the Instrument of Government and these Articles.
Copies of Articles of Government and rules and bye-laws
24
A copy of these Articles, and of any rules and bye-laws, shall be given free of charge to every member of the Corporation and at a charge not exceeding the cost of copying or free of charge, to any other person who requests a copy and shall be available for inspection at the institution upon request, during normal office hours, to every member of staff and every student at the institution.
Modification or replacement of the Instrument and Articles of Government
25
1
Subject to paragraph (2), the Corporation may by resolution of the members modify or replace its instrument and articles of government, after consultation with any other persons who, in the Corporation’s view, are likely to be affected by the proposed changes.
2
The Corporation shall not make changes to the instrument or articles of government that would result in the body ceasing to be a charity.
Dissolution of the Corporation
26
1
The Corporation may by resolution dissolve itself and provide for the transfer of its property, rights and liabilities.
2
The Corporation shall ensure that a copy of the draft resolution to dissolve the corporation on a specified date shall be published at least one month before the proposed date of such resolution. |
The Health and Social Care Act 2012 (Commencement No.1 and Transitory Provision) Order 2012
In accordance with section 307 of that Act , the Secretary of State has consulted the Scottish Ministers.
Citation and interpretation
1
1
This Order may be cited as the Health and Social Care Act 2012 (Commencement No.1 and Transitory Provision) Order 2012.
2
In this Order “ the Act ” means the Health and Social Care Act 2012.
Commencement of provisions
2
1
Insofar as they are not already in force , the following provisions of the Act shall come into force in accordance with this Order.
2
1st June 2012 is the day appointed for the coming into force of the following provisions of the Act —
section 8 (Secretary of State’s duty as to reporting on and reviewing treatment of providers);
section 64(3) to (5) (supplementary provision as to Monitor’s general duties), and section 64(1) insofar as it relates to those subsections, only insofar as section 64(1) and (3) to (5) relate to section 8 of the Act;
section 299 (certificate of consent of community patients to treatment).
3
1st July 2012 is the day appointed for the coming into force of the following provisions of the Act —
section 39 (discharge of patients);
section 42 (transfers to and from special hospitals);
section 44 (patients’ correspondence);
section 59 (repeal of AIDS (Control) Act 1987);
section 61(1) (Monitor);
section 64(3) to (5) (supplementary provision as to Monitor’s general duties), and section 64(1) insofar as it relates to those subsections, insofar as they are not already in force;
section 79 (mergers involving NHS foundation trusts);
section 160 (bodies which may apply for foundation trust status);
section 201 (disclosure of reports etc. by the Health Service Commissioner);
section 207(8) and (10) (control of entry on pharmaceutical lists);
section 227 (appointments to regulatory bodies);
section 231 and Part 4 of Schedule 15 (abolition of the Office of the Health Professions Adjudicator);
section 278 and Part 1 of Schedule 20 (abolition of the Alcohol Education and Research Council);
section 283 (standing advisory committees);
section 288(1) and (2)(a) (Monitor: duty to co-operate with Care Quality Commission);
section 289(2), and section 289(1) insofar as it relates to that subsection (Care Quality Commission: duty to co-operate with Monitor);
section 289(3) insofar as it omits the whole of section 70(2) of the Health and Social Care Act 2008 , and insofar as it substitutes section 70(2)(a) of that Act, and section 289(1) insofar as it relates to section 289(3);
section 289(4)(a) and (6), and section 289(1) insofar as it relates to those subsections;
sections 300 to 302 and Schedules 22 and 23 (transfer schemes), except insofar as they relate to —
the National Health Service Commissioning Board,
a clinical commissioning group,
any person with whom the Secretary of State has made, or has decided to make, an agreement under section 12ZA(1) of the Mental Health Act 1983,
the National Institute for Health and Care Excellence (established under section 232 of the Act), and
the Health and Social Care Information Centre (established under section 252 of the Act);
in Schedule 4, paragraphs 112 and 115 (consequential amendments of the National Health Service Act 2006 in relation to transfer schemes), and section 55(1) insofar as it relates to those paragraphs;
in Schedule 6, paragraph 2(1) (modification of requirements as to consultation), and paragraph 1(4) of that Schedule (interpretation) and section 55(3) (amendments related to Part 1 and transitional provision) insofar as they relate to that paragraph;
in Schedule 13 (minor and consequential amendments in relation to Part 3 of the Act) —
paragraphs 1 to 7,
paragraph 9(1) only insofar as it omits section 31(1) of the National Health Service Act 2006 ,
paragraphs 11 to 13,
paragraph 8 insofar as it relates to paragraphs 9, 11 and 12, and
paragraphs 18 and 19,
and section 150(5) insofar as it relates to those paragraphs.
4
1st August 2012 is the day appointed for the coming into force of the following provisions of the Act —
sections 209 to 211 (power to regulate social workers etc. in England and orders under section 60 of the Health Act 1999);
section 212(2) and (3) (abolition of the General Social Care Council);
sections 213 to 218 (the Health and Care Professions Council);
section 220 (references in enactments to registered health professionals, etc.);
section 221 (functions of the Secretary of State in relation to social care workers);
section 223(1), (2), (5), (9), (10) and (14) (functions of the Professional Standards Authority for Health and Social Care);
section 230, except insofar as subsection (1) relates to Part 3 of Schedule 15, and Parts 1 and 2 of Schedule 15 (consequential provisions and savings, etc. in relation to Part 7 of the Act).
Transitory modification in respect of the commencement of section 227 of the Act
3
From 1st July 2012 until section 222 of the Act (the Professional Standards Authority for Health and Social Care) comes into force, the references to the Professional Standards Authority for Health and Social Care in section 25C of the National Health Service Reform and Health Care Professions Act 2002 are to be read as references to the Council for Healthcare Regulatory Excellence.
Signed by authority of the Secretary of State for Health.
Simon Burns
Minster of State,
Department of Health
17th May 2012 |
The Further Education Teachers’ Continuing Professional Development and Registration (England) (Revocation) Regulations 2012
The Secretary of State for Business, Innovation and Skills makes the following Regulations in exercise of the powers conferred by sections 136(c) and 210(7) of the Education Act 2002 .
Citation and commencement
1
These Regulations may be cited as the Further Education Teachers’ Continuing Professional Development and Registration (England) (Revocation) Regulations 2012 and come into force on 30th September 2012.
Revocation
2
The following Regulations are revoked —
a
the Further Education Teachers’ Continuing Professional Development and Registration (England) Regulations 2007 ; and
b
regulation 3 of the Further Education Teachers’ Qualifications, Continuing Professional Development and Registration (England) (Amendment) Regulations 2012 .
John Hayes
Minister of State for Further Education, Skills and Lifelong Learning
Department for Business, Innovation and Skills
20th August 2012 |
The Housing (Right to Manage) (England) Regulations 2012
The Secretary of State in exercise of the powers conferred by sections 27(4) and (17) and 27AB of the Housing Act 1985 , makes the following Regulations:
PART 1 GENERAL PROVISIONS
Citation, commencement and application
1
1
These Regulations may be cited as the Housing (Right to Manage) (England) Regulations 2012 and shall come into force on 6th August 2012.
2
These Regulations apply in relation to houses and authorities in England only.
Revocation of the Housing (Right to Manage) Regulations 2008
2
Subject to Part 6 of these Regulations, the Housing (Right to Manage) (England) Regulations 2008 are revoked.
Interpretation
3
In these Regulations —
“the 2008 Regulations ” means the Housing (Right to Manage)(England) Regulations 2008;
“acceptance date” means the date on which a tenant management organisation receives a notice under regulation 11(2)(a) that an authority has accepted its proposal notice;
“approved assessor” means a person approved by the Secretary of State for the purposes of assessing the competence of tenant management organisations under regulation 13(1) ;
“approved assessor service” means a person designated by the Secretary of State to appoint an approved assessor on the application of a tenant management organisation under regulation 13(1);
“area” in relation to a tenant management organisation, means the area specified in its constitution in accordance with regulation 4(1)(b);
“authority” means the local housing authority on which a proposal notice is served;
“commencement date” means the date on which these Regulations come into force;
“competence” means the competence of a tenant management organisation to exercise the management functions set out in the offer notice;
“house” includes —
part of a house;
land let together with a house; and
land held for a purpose related to the house;
“management functions” has the same meaning as in section 27 of the Housing Act 1985;
“offer notice” means the offer notice prepared by the authority and TMO under regulation 14;
“proposal notice” means a notice which complies with regulation 9 ;
“support” means the provision or financing by an authority of office accommodation, facilities or training;
“tenant” means a person who holds a secure tenancy (within the meaning of section 79 of the Housing Act 1985), or other tenancy of a house from an authority;
“TMO” means a tenant management organisation; and
“TMO agreement” means an agreement required to be made between an authority and a tenant management organisation under regulation 16 .
Definition and general duties of tenant management organisations
4
1
A tenant management organisation is an organisation which satisfies the following conditions —
a
it has a constitution in written form;
b
its constitution specifies an area in relation to which it seeks to enter into a TMO agreement with an authority;
c
its constitution provides that any tenant of a house in that area may become a member of the TMO;
d
its constitution provides that, in conducting its affairs, the TMO must avoid any unlawful discrimination;
e
its constitution provides that the affairs of the TMO must be conducted either —
i
by the members of the TMO at a general meeting; or
ii
by a committee or board of directors elected by members of the TMO.
2
For the purposes of these Regulations, a TMO —
a
is not disqualified from being a TMO if its constitution contains provision for matters other than those specified in paragraph (1); and
b
does not cease to be a TMO if its constitution is at any time amended to contain such provision.
3
In exercising its functions under these Regulations, a TMO —
a
must act in accordance with the provisions of its constitution relevant to the exercise of its functions under these Regulations; and
b
must have regard to any guidance provided from time to time by the Secretary of State relevant to the exercise of its functions under these Regulations.
Agreement for extension of time
5
Where any person is required or authorised to exercise any function under these Regulations within a specified period, the TMO and the authority concerned may by agreement before the expiry of that period, extend the period for a further specified period.
Security of ballot
6
Any ballot held under these Regulations must be organised so that the vote cast by any individual is kept secret.
Written communications
7
Any requirement under these Regulations to make, prepare, provide or send a notification, request, referral, report, plan, offer or other communication, is a requirement to do so in writing.
Disputes between authorities and TMOs
8
1
Where an authority and a TMO cannot resolve a dispute that has arisen between them concerning the application or interpretation of any provision of these Regulations or the TMO agreement, or a determination made under these Regulations, either party may refer the matter for determination to an arbitrator appointed by agreement between them or, in default of agreement, appointed by the Secretary of State.
2
In making the referral described in paragraph (1), the authority and the TMO must have regard to any guidance provided from time to time by the Secretary of State as to the procedure and conduct of the arbitration.
PART 2 INITIATING THE PROCESS STAGE
Proposal notices
9
1
A notice is a proposal notice if it complies with paragraphs (2) and (4) and is served on an authority by a TMO.
2
The notice must contain the following —
a
a statement that the authority on which it is served should enter into a TMO agreement with the TMO serving the notice;
b
a statement that the subject of the proposed TMO agreement is to be the management of houses within the TMO’s area of which, at the time the notice is served, at least 25 are let under secure tenancies; and
c
a statement that those houses to which the proposed TMO agreement relates are within the TMO’s area.
3
The notice must be accompanied by evidence demonstrating that the requirements in regulation 10 have been complied with.
4
A proposal notice must not contain a proposal relating to houses already included in an existing management agreement between a TMO and an authority unless —
a
all of those houses are included in the proposal and the TMO which serves the notice is a party to that existing management agreement; or
b
the number of houses which are the subject of the existing agreement is greater than 2500.
Consultation and membership requirements relevant to proposal notices
10
A TMO must —
a
before serving a proposal notice on an authority, use its best endeavours to deliver a copy of the notice to every house which is identified in the proposal notice;
b
before serving a proposal notice be satisfied that —
i
a majority of members of the TMO voted in favour of serving the notice at a ballot of all members; or
ii
a majority of members of the TMO in attendance at a properly constituted general meeting voted in favour of a resolution to serve a notice;
c
at the time the notice is served, ensure that the membership of the TMO includes —
i
at least 20% of the tenants; and
ii
at least 20% of the secure tenants,
of the houses identified in the proposal notice.
Acceptance and refusal of proposal notices
11
1
Subject to paragraphs (4) and (5), an authority on which a proposal notice is served must accept it.
2
An authority must notify the TMO within 28 days of receiving the proposal notice —
a
whether it has accepted or refused the proposal notice; and
b
where it has refused, the reasons for the refusal.
3
Where an authority accepts a proposal notice, it must at the time of notification under paragraph (2) —
a
inform the TMO of any other management organisation or person which already exercises management functions in relation to the houses identified in the proposal notice; and
b
provide a copy of the proposal notice to any other such management organisation or person.
4
An authority may refuse to accept a proposal notice if it contains a similar proposal to one contained in a previous proposal notice, and —
a
at least half of the houses identified in the current proposal notice were also identified in the previous proposal notice; and
b
within the two years preceding the date on which the current notice is received, the previous proposal notice was withdrawn voluntarily, by the TMO, or was deemed to be withdrawn as mentioned in —
i
regulation 13(8) (competence of TMO);
ii
regulation 15(4) (refusal of offer to tenants); or
iii
regulation 17 (failure to register TMO).
5
An authority may refuse to accept a proposal notice if it has reasonable grounds for believing that the TMO which served the notice has failed to comply with the requirements of regulation 10(a) or (b), or that the requirements of regulation 10(c) have not been met.
Authority support following proposal notice
12
1
Where an authority has accepted a proposal notice, the TMO which served the notice may make a request to the authority for such support as is specified in the request, being support that is reasonably required for the purposes of pursuing the proposal notice.
2
On receipt of a request under paragraph (1) , the authority must —
a
determine the support which it considers the TMO reasonably requires for the purposes of pursuing the proposal notice; and
b
notify the TMO of the determination within 28 days of its receipt of the request.
3
Subject to paragraphs (7) and (8) the authority must provide support in accordance with the determination under paragraph (2)(a).
4
If a TMO is dissatisfied with an authority’s determination under paragraph (2)(a) it may, within 28 days of being notified of the determination, refer the request to an arbitrator.
5
Where a TMO makes a referral under paragraph (4) it must at the same time give notice of that referral to the authority.
6
Within 28 days of a referral under paragraph (4) the arbitrator must —
a
determine the support which the arbitrator considers the TMO reasonably requires for the purposes of pursuing the proposal notice; and
b
notify the authority and the TMO of the determination.
7
Where a determination has been notified under paragraph (6), the authority must provide support in accordance with that determination.
8
Paragraph (3) does not apply if the proposal notice is withdrawn voluntarily by the TMO, or is deemed to be withdrawn under these Regulations.
PART 3 DEVELOPMENT STAGE
Appointment of approved assessor to assess competence of TMO
13
1
Where an authority has accepted a proposal notice, the TMO must within 3 months of the acceptance date apply to the approved assessor service to appoint an approved assessor to report on the competence of the TMO to exercise the management functions set out in the proposal.
2
The authority must arrange for the approved assessor to produce the report.
3
The report described in paragraph (1) must —
a
state whether or not the approved assessor concludes that the TMO is competent; and
b
if the approved assessor concludes that the TMO is not competent, suggest the action the authority and the TMO should take to ensure that the TMO becomes competent.
4
The approved assessor must, within 15 months of the acceptance date, complete the report and provide it to the authority and the TMO.
5
The authority and the TMO must —
a
use all reasonable efforts to take the action suggested by the approved assessor in accordance with paragraph (3)(b); and
b
jointly agree an action plan to enable them to do so.
6
The authority must notify the approved assessor within 7 days of the action being completed.
7
The approved assessor must within 35 days of receipt of the authority’s notification under paragraph (6) reassess whether or not the TMO is competent and notify the authority and the TMO of his conclusion.
8
The proposal notice is deemed to be withdrawn —
a
if a TMO and authority fail to comply with the requirements of this regulation; or
b
if the approved assessor concludes under paragraph (7) that the TMO is not competent.
Offer Notice
14
1
Within 15 months of the acceptance date, the TMO and the authority must jointly prepare an offer notice.
2
The offer notice must contain a statement describing —
a
the management functions the TMO propose to exercise;
b
the funding or budget to be allocated by the authority to enable the TMO to exercise those functions;
c
the financial accountability and control procedures which the authority and the TMO will have in place; and
d
the management and governance arrangements of the TMO.
3
In preparing the offer notice, the TMO and the authority must have regard to any guidance issued from time to time by the Secretary of State.
Offer to tenants
15
1
Where the approved assessor concludes under regulation 13 that the TMO is competent, the authority must within 3 months of receiving his conclusion, make to the tenants of each house identified in the proposal notice, an offer containing —
a
the offer notice;
b
the conclusion of the approved assessor; and
c
information submitted by the TMO concerning the proposal.
2
The authority must arrange for a ballot to be carried out within 3 months of making the offer, with a view to establishing whether the tenants referred to in paragraph (1) wish to accept the offer.
3
The authority must within 14 days of carrying out the ballot notify the TMO of whether a majority of the tenants who voted and a majority of the secure tenants who voted —
a
accepted the offer; or
b
refused the offer.
4
The proposal notice is deemed to be withdrawn where the offer is refused by —
a
a majority of the tenants who voted in the ballot; or
b
a majority of the secure tenants who voted in the ballot.
PART 4 IMPLEMENTATION STAGE
Duty to enter into TMO agreement
16
1
Subject to regulation 17 , where —
a
a majority of the tenants who voted in the ballot under regulation 15(2), and
b
a majority of the secure tenants who voted in that ballot,
have accepted the offer, the authority must within 9 months of the date of the authority’s notification under regulation 15(3), enter into a TMO agreement with the TMO.
2
That TMO agreement must take into account any guidance issued from time to time by the Secretary of State relating to TMO agreements.
Incorporation of TMO
17
Unless within 9 months of the local authority’s notification under regulation 15(3), the TMO is registered as —
a
an Industrial and Provident Society under the Industrial and Provident Societies Act 1965 ; or
b
a company under the Companies Act 2006 ;
the proposal notice is deemed to be withdrawn and the authority is not required to enter into a TMO agreement.
PART 5 OTHER PROVISIONS RELATING TO TMOS
Guidance by Secretary of State
18
Without prejudice to regulations 4(3)(b), 8(2), 14(3) and 16(2), any person exercising functions under these Regulations must have regard to any guidance given by the Secretary of State relevant to the exercise of those functions.
Break clause in other housing management agreements
19
1
This regulation applies to every agreement made under section 27(1) of the Housing Act 1985 between an authority and a manager after the commencement date, where the agreement relates to —
a
the same houses; and
b
the same management functions in relation to those houses,
that are the subject of a subsequent TMO agreement.
2
An agreement to which this regulation applies must contain the terms to the effect that —
a
that the authority must determine the agreement where it is required to enter into a TMO agreement; and
b
that on the determination of the agreement, the authority and the manager must make arrangements for the transfer of the management functions from the manager to the TMO, if such arrangements are necessary.
3
An agreement to which this regulation applies that, when made, does not contain the terms specified in paragraph (2) and (5), shall be treated as if it had always contained those terms.
4
An authority must determine an agreement to which these regulations apply as soon as reasonably practicable after the date it is required to enter into a TMO agreement under regulation 16.
5
The authority and the manager must make arrangements in accordance with paragraph (2) (b) within 3 months of the determination of such an agreement.
Participation by authority in TMOs
20
Where an authority has, or proposes to enter into a TMO agreement with a TMO, it may, at the invitation of the TMO concerned, nominate one or more persons to be directors or other officers of the TMO.
Agreements entered into voluntarily
21
An authority may enter into a TMO agreement otherwise than in accordance with these Regulations where that agreement satisfies the requirements of section 27.
PART 6 TRANSITIONAL AND SAVING PROVISIONS
General transitional provision
22
Except as mentioned in this Part, any function exercised, step taken or requirement satisfied in accordance with a provision in the 2008 Regulations before the commencement date must be treated on and after that date as a function exercised, step taken or requirement satisfied in accordance with the equivalent provision, where there is such a provision, of these Regulations.
Proposal notices served under the 2008 Regulations
23
1
This regulation applies where before the commencement date —
a
a TMO served a proposal notice pursuant to regulation 9 of the 2008 Regulations (referred to in the following provisions of this Part as a “regulation 9 notice”); and
b
the authority on which the notice was served neither accepted nor declined to accept the proposal notice.
2
The authority may accept the regulation 9 notice on or after the commencement date and where it does so regulations 11(3) and 12 to 17 of these Regulations shall have effect as if the regulation 9 notice were a proposal notice within the meaning of these Regulations.
3
The authority may, in accordance with regulation 11(2), (4) and (5) of the 2008 Regulations, refuse the regulation 9 notice but the authority shall not be treated as having done so unless, within the period specified in regulation 11(2) of those Regulations, it gives notice to that effect, stating its reasons for declining to accept the proposal notice.
Local authority support following proposal notice
24
1
Where, before the commencement date —
a
a TMO requested support under paragraph (1) of regulation 12 of the 2008 Regulations; and
b
the authority did not make the determination referred to in paragraph (2) of that regulation,
the request for support shall be treated as a request made under regulation 12 of these Regulations and regulations 13 to 20 of these Regulations shall have effect as if the regulation 9 notice were a proposal notice within the meaning of these Regulations.
2
Where —
a
on or after the commencement date —
i
the authority agrees to the TMO’s request for support; or
ii
an arbitrator notifies the authority and the TMO under paragraph (6) of regulation 12 of the 2008 Regulations of a determination made in relation to that request; and
b
the authority and the TMO have not commenced preparation of the feasibility study,
the TMO may apply to the approved assessor service to appoint an approved assessor under regulation 13 of these Regulations and the authority and the TMO may prepare an offer in accordance with regulation 14 of these Regulations.
3
Regulations 13 to 20 of these Regulations shall apply in a case to which paragraph (2) applies as if the regulation 9 notice were a proposal notice accepted under regulation 11.
Subsequent procedure in relation to regulation 9 notices
25
1
This regulation shall apply where, before the commencement date, the authority accepted a regulation 9 notice and agreed to provide support but did not enter into a management agreement under the 2008 Regulations.
2
Subject to paragraph (3), regulations 13 to 20 of the 2008 Regulations shall continue to have effect.
3
The 2008 Regulations cease to have effect at the end of the period of 3 years beginning with the date on which these Regulations come into force.
4
A regulation 9 notice is deemed to have been withdrawn where a management agreement under the 2008 Regulations has not been entered into by the date the 2008 Regulations cease to have effect under paragraph (3).
Signed by authority of the Secretary of State for Communities and Local Government
Grant Shapps
Minister of State
Department for Communities and Local Government
10th July 2012 |
The Offshore (Oil and Gas) Installation and Pipeline Abandonment Fees Regulations 2012
In accordance with section 39(5) of that Act the Secretary of State has consulted organisations in the United Kingdom appearing to the Secretary of State to be representative of those persons who will be affected by the Regulations.
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Offshore (Oil and Gas) Installation and Pipeline Abandonment Fees Regulations 2012.
2
They come into force on 20th April 2012.
3
In these Regulations a reference to a section by number alone is to that section of the Petroleum Act 1998.
4
In these Regulations —
“abandonment programme” has the meaning given by section 29(1);
“carbon capture and storage pipeline” means a submarine pipeline —
which is used for the purposes of an activity mentioned in section 17(2)(a), (b) or (c) of the Energy Act 2008 ; or
which is not being used for any purpose but which is intended to be used for the purposes of such an activity;
“carbon storage installation” has the meaning given by section 30(5) of the Energy Act 2008;
“proposal to revise an abandonment programme” means a proposal of any of the kinds referred to in section 34(1);
“section 29 fee” means a fee payable under section 29(5) by a person who submits an abandonment programme to the Secretary of State;
“section 34 fee” means a fee payable under section 34(4) by a person who gives notice of a proposal to revise an abandonment programme.
Application
2
These Regulations apply in relation to any abandonment programme or proposal to revise an abandonment programme, except for such a programme or proposal which relates solely to —
a
a carbon storage installation; or
b
a carbon capture and storage pipeline.
Request to the Secretary of State to determine a fee
3
1
Before a person (“X”) —
a
submits an abandonment programme; or
b
gives notice of a proposal to revise an abandonment programme,
X must make a request to the Secretary of State to determine a section 29 fee or a section 34 fee.
2
A request under paragraph (1) must be in writing and include a draft of the abandonment programme or proposal which X proposes to submit, containing sufficient information to enable the Secretary of State to determine the fee payable.
3
The Secretary of State must as soon as practicable after receiving the request —
a
determine the section 29 fee or the section 34 fee in accordance with regulation 4; and
b
notify X in writing of the determination.
Calculation of fee
4
1
A section 29 fee or section 34 fee is —
A x B
where —
A is the number of days which the Secretary of State estimates will be required to consider an abandonment programme, or proposal to revise an abandonment programme; and
B is the daily rate multiplied by the number of officers which the Secretary of State estimates will be required to consider the abandonment programme, or proposal to revise an abandonment programme.
2
In this regulation —
“daily rate” means £300;
“officer” means a person engaged on behalf of the Secretary of State in carrying out any of the functions for which the fees are payable.
Charles Hendry
Minister of State
Department of Energy and Climate Change
Date 26th March 2012
Michael Fabricant
Angela Watkinson
Two of the Lords Commissioners of
Her Majesty’s Treasury
Date 26th March 2012 |
Subsets and Splits