SCHEDULES

Section 8

SCHEDULE 1 Transfer schemes

Introduction

1 5In this Schedule—

• “transfer scheme” means a transfer scheme under section 8,

• “transferee”—

  (a)

  in relation to a transfer scheme, means a person to whom
  property, rights or liabilities are transferred in accordance
  10with the scheme, and

  (b)

  in relation to particular property, rights or liabilities
  transferred or created in accordance with a transfer scheme,
  means the person to whom that property or those rights or
  liabilities are transferred or in whose favour, or in relation to
  15whom, they are created,

• “transferor”—

  (a)

  in relation to a transfer scheme, means a person from whom
  property, rights or liabilities are transferred in accordance
  with the scheme, and

  (b)

  20in relation to particular property, rights or liabilities
  transferred or created in accordance with a transfer scheme,
  means the person from whom that property or those rights or
  liabilities are transferred or the person who or whose
  property is subject to the interest or right created by the
  25scheme or for whose benefit the liability is created, and

• “third party”, in relation to a transfer scheme, means any person other
  than a transferor or transferee.

Identification of property etc to be transferred

2 (1) A transfer scheme may identify the property, rights and liabilities to be
30transferred by specifying or describing them.

(2) A transfer scheme may provide for the way in which property, rights or
liabilities of any description are to be identified.

Property, rights and liabilities that may be transferred

3 (1) A transfer scheme may transfer—

(a) 35property situated in any part of the world,

(b) rights and liabilities arising (in any way) under the law of any
country or territory.

(2) The property, rights and liabilities that may be transferred by a transfer
scheme include—

(a) property, rights and liabilities acquired or arising after the scheme
has been made but before the time specified under paragraph 6(1),

(b) 5rights and liabilities arising after that time in respect of matters
occurring before that time,

(c) property, rights and liabilities that would not otherwise be capable
of being transferred or assigned.

(3) The transfers to which effect may be given by a transfer scheme include ones
10that are to take effect as if there were no such contravention, liability or
interference with any interest or right as there would otherwise be by reason
of any provision having effect in relation to the terms on which the
transferor is entitled or subject to anything to which the transfer relates.

(4) In sub-paragraph (3) the reference to any provision is a reference to any
15provision, whether under an enactment or agreement or otherwise.

(5) Sub-paragraph (3) has effect where shares in a subsidiary of the transferor
are transferred as if the reference to the terms on which the transferor is
entitled or subject to anything to which the transfer relates included a
reference to the terms on which the subsidiary is entitled or subject to
20anything immediately before the transfer takes effect.

Dividing and modifying transferor’s property, rights and liabilities

4 (1) A transfer scheme may contain provision—

(a) for the creation, in favour of a transferor or transferee, of an interest
or right in or in relation to property or rights transferred in
25accordance with the scheme,

(b) for giving effect to a transfer by the creation, in favour of the
transferee, of an interest or right in or in relation to property or rights
retained by a transferor, and

(c) for the creation of new rights and liabilities (including rights of
30indemnity and duties to indemnify) as between different transferees
and as between a transferee and a transferor.

(2) A transfer scheme may contain provision for the creation of rights and
liabilities for the purpose of converting arrangements between different
parts of a transferor’s undertaking into a contract—

(a) 35between different transferees, or

(b) between a transferee and a transferor.

(3) A transfer scheme may contain provision—

(a) for rights and liabilities to be transferred so as to be enforceable by or
against more than one transferee or by or against both the transferee
40and the transferor, and

(b) for rights and liabilities enforceable against more than one person in
accordance with provision falling within paragraph (a) to be
enforceable in different or modified respects by or against each or
any of them.

(4) 45A transfer scheme may contain provision for interests, rights or liabilities of
third parties in relation to anything to which the scheme relates to be
modified in the manner set out in the scheme.

(5) Paragraph 3(2)(c) and (3) apply to the creation of interests and rights as they
apply to the transfer of interests and rights.

Obligation to effect transfers etc

5 (1) A transfer scheme may impose on a transferee or transferor an obligation—

(a) 5to enter into an agreement (specified or described in the scheme)
with another person on whom a corresponding obligation is, could
be or has been imposed as a result of this paragraph (whether in the
same or a different scheme), or

(b) to execute an instrument (specified or described in the scheme) in
10favour of such a person.

(2) A transfer scheme that imposes such an obligation may provide that
paragraph 3(3) applies (to the extent specified in the scheme) in relation to—

(a) a transfer made by or under an agreement or instrument made in
pursuance of the obligation, and

(b) 15interests or rights created by or under such an agreement or
instrument.

(3) Subject to that, nothing in paragraph 3 enables—

(a) an agreement or instrument made in pursuance of such an
obligation, or

(b) 20anything done under such an agreement or instrument,

to give effect to a transfer, or to create an interest or right, that could not
otherwise have been made or created by or under the agreement or
instrument.

(4) An obligation imposed as a result of sub-paragraph (1) may be enforced by
25the person with, or in favour of, whom the agreement or instrument is to be
entered into or executed, in proceedings for any of the following—

(a) an injunction,

(b) specific performance of a statutory duty under section 45 of the
Court of Session Act 1988,

(c) 30any other appropriate remedy or relief.

Effect of transfer scheme: general

6 (1) At the time specified in the scheme—

(a) the property, rights and liabilities to be transferred in accordance
with the scheme, and

(b) 35the interests, rights and liabilities to be created in accordance with
the scheme,

are, as a result of this sub-paragraph, to vest in the transferee.

(2) Sub-paragraph (1) is subject to any provision of the scheme that provides
that the transfer or creation of any property, interests, rights or liabilities is
40to be effected by or under an agreement or instrument entered into or
executed in pursuance of an obligation imposed by virtue of paragraph 5(1).

Effect of transfer scheme on right to terminate or modify interest etc

7 (1) This paragraph applies where a person would otherwise be entitled, in
consequence of anything done or likely to be done by or under this Act in
connection with a transfer scheme—

(a) 5to terminate, modify, acquire or claim an interest or right, or

(b) to treat an interest or right as modified or terminated.

(2) The entitlement—

(a) is not enforceable in relation to the interest or right until after the
transfer of the interest or right by the scheme, and

(b) 10after that transfer, is enforceable in relation to the interest or right
only in so far as the scheme contains provision for the interest or
right to be transferred subject to whatever confers the entitlement.

(3) Where shares in a subsidiary of the transferor are transferred, sub-
paragraph (2) has effect in relation to an interest or right of the subsidiary as
15if the references to the transfer of the interest or right included a reference to
the transfer of the shares.

(4) A transfer scheme that (as a result of paragraph 5(1)) contains an obligation
to enter into or execute an agreement or instrument may provide for sub-
paragraphs (1) to (3) to apply to interests or rights affected by—

(a) 20the agreement or instrument, or

(b) a proposal for the agreement or for the execution of the instrument.

(5) Where the scheme does so provide, sub-paragraphs (1) to (3) apply in
relation to the interests or rights as if references there to the transfer scheme
included the agreement or instrument.

25Supplementary provisions of schemes

8 (1) A transfer scheme may—

(a) contain incidental, supplementary, consequential, transitional,
transitory or saving provision, and

(b) make different provision for different cases or circumstances.

(2) 30Nothing in paragraphs 9 to 13 limits sub-paragraph (1).

(3) In those paragraphs any reference to a transfer in accordance with a transfer
scheme includes the creation in accordance with a transfer scheme of an
interest, right or liability.

9 (1) A transfer scheme may provide, in relation to transfers in accordance with
35the scheme—

(a) for a transferee to be treated as the same person in law as the
transferor,

(b) for agreements made, transactions effected or other things done by
or in relation to the transferor to be treated, so far as may be
40necessary for the purposes of or in connection with the transfers, as
made, effected or done by or in relation to a transferee,

(c) for references in any document to the transferor, or to an employee
or office holder of the transferor, to have effect, so far as may be
necessary for the purposes of or in connection with any of the
45transfers, with such modifications as are specified in the scheme, and

(d) for proceedings commenced by or against the transferor to be
continued by or against a transferee.

(2) In sub-paragraph (1)(c) “document” includes an agreement or instrument,
but does not include an enactment.

10 (1) 5A transfer scheme may contain provision about—

(a) the transfer of foreign property, rights and liabilities,

(b) the creation of foreign rights, interests and liabilities.

(2) For the purposes of this paragraph property, or a right, interest or liability,
is “foreign” if an issue relating to it arising in any proceedings would (in
10accordance with the rules of private international law) be determined under
the law of a country or territory outside the United Kingdom.

11 (1) A transfer scheme may contain provision for and in connection with the
payment of compensation to third parties whose property, rights, interests
or liabilities have been affected by (or as a result of) a transfer scheme.

(2) 15The provision may provide for the appointment of an arbitrator to
determine disputes about compensation.

12 A transfer scheme may make provision for disputes as to the effect of the
scheme—

(a) between different transferees, or

(b) 20between a transferee and a transferor,

to be referred to such arbitration as may be specified in or determined under
the scheme.

13 (1) This paragraph applies if, in consequence of a transfer scheme, a person
(“P”) is entitled to possession of a document relating in part to the title to, or
25to the management of, land or other property.

(2) If the land or other property is in England and Wales—

(a) the scheme may provide for P to be treated as having given another
person an acknowledgement in writing of the other person’s right to
production of the document and to delivery of copies of it, and

(b) 30section 64 of the Law of Property Act 1925 (production and safe
custody of documents) is to apply to the acknowledgement and is to
apply on the basis that the acknowledgement does not contain an
expression of contrary intention.

(3) If the land or other property is in Scotland, section 16(1) of the Land
35Registration (Scotland) Act 1979 (omission of certain clauses in deeds) has
effect in relation to the transfer as if—

(a) the transfer had been effected by deed, and

(b) the words “unless specially qualified” were omitted from that
subsection.

(4) 40If the land or other property is in Northern Ireland—

(a) the scheme may provide for P to be treated as having given another
person an acknowledgement in writing of the other person’s right to
production of the document and to delivery of copies of it, and

(b) section 9 of the Conveyancing Act 1881 (which corresponds to
45section 64 of the 1925 Act) is to apply to the acknowledgement and is
to apply on the basis that the acknowledgement does not contain an
expression of contrary intention.

Proof of title by certificate

14 A certificate issued by the Secretary of State to the effect that any property,
interest, right or liability vested (in accordance with a transfer scheme) in a
person specified in the certificate at a time so specified is conclusive
5evidence of the matters so specified.

Staff

15 The Transfer of Undertakings (Protection of Employment) Regulations 2006
apply to a transfer (under a transfer scheme) of rights and liabilities under a
contract of employment (whether or not the transfer would otherwise be a
10relevant transfer for the purposes of those regulations).

16 If an employee of the transferor becomes an employee of a transferee as a
result of a transfer scheme—

(a) a period of employment with the transferor is to be treated as a
period of employment with the transferee, and

(b) 15the transfer to the transferee is not to be treated as a break in service.

Modification of scheme

17 (1) If—

(a) before the end of the period of 3 years beginning with the time
specified under paragraph 6(1), the transferor and transferee agree in
20writing that the scheme is to be treated as having come into force at
that time with such modifications as are specified in the agreement,
and

(b) the Secretary of State, with the consent of the Treasury, approves the
agreement,

25the scheme as modified is to be treated for all purposes as having come into
force at that time.

(2) An agreement under this paragraph may, in connection with giving effect to
modifications to the scheme—

(a) contain incidental, supplementary, consequential, transitional,
30transitory or saving provision, and

(b) make different provision for different cases or circumstances.

Disapplication of certain company law provisions etc

18 Nothing in—

(a) Part 23 of the Companies Act 2006 (distributions), or

(b) 35any rule of law relating to distributions by companies or the
maintenance of capital by companies,

applies in relation to a transfer of property, rights or liabilities, or the
creation of rights or interests, by or under a transfer scheme.

19 For the purposes of any enactment none of the following persons are to be
40regarded as shadow directors of a transferor or transferee in relation to
anything done by or under a transfer scheme—

(a) the Secretary of State or the Treasury (or a nominee of either of them),
or

(b) a person employed by, or acting on behalf of, anyone within
paragraph (a).

Section 10

SCHEDULE 2 Taxation provisions relating to re-structuring etc

5Transfer of securities of subsidiaries of original holding company to Crown etc

1 (1) This paragraph applies where—

(a) there is a disposal of securities of a subsidiary of the original holding
company to the Secretary of State or the Treasury (or a nominee of
either of them) or to a company wholly owned by the Crown, and

(b) 10immediately before the disposal, the subsidiary was wholly owned
by the original holding company.

(2) For the purposes of the Taxation of Chargeable Gains Act 1992 the disposal
is to be treated in relation to—

(a) the person making the disposal, and

(b) 15the person to whom the disposal is made,

as made for a consideration such that no gain or loss accrues to the person
making the disposal.

(3) The degrouping provisions are not to apply by reason of the disposal or any
agreement to make the disposal (if they otherwise would).

(4) 20In this Schedule a “degrouping provision” means—

(a) section 179 of the Taxation of Chargeable Gains Act 1992 (company
ceasing to be member of group), or

(b) paragraph 3 of Schedule 7 to the Finance Act 2003 (withdrawal of
SDLT group relief).

(5) 25Stamp duty is not chargeable on the instrument effecting the disposal.

(6) This paragraph applies whether or not the disposal is made by or under a
transfer scheme under section 8.

2 (1) This paragraph applies where—

(a) paragraph 1(3) has applied at any time in relation to a disposal or an
30agreement to make a disposal,

(b) there is a subsequent disposal of securities of the subsidiary in
relation to which paragraph 1(3) does not apply, and

(c) immediately before the subsequent disposal or the making of an
agreement to make it, the subsidiary was a member of a new group.

(2) 35For the purposes of the application of a degrouping provision in the case of
that disposal or agreement—

(a) the company from which the subsidiary acquired relevant assets or
chargeable interests is to be treated as if it had been a member of the
new group at the time the relevant assets or chargeable interests
40were acquired, and

(b) that company is to be treated as if it were a member of the new group
immediately before the disposal or the making of the agreement
mentioned in sub-paragraph (1)(c).

(3) “Relevant assets or chargeable interests” means assets or chargeable
5interests in relation to which, but for paragraph 1(3), the degrouping
provision in question would have applied by reason of the disposal or
agreement mentioned in sub-paragraph (1)(a).

(4) In this paragraph—

(a) references to a group have the same meaning as in the degrouping
10provision in question, and

(b) references to a new group are to a group other than a group of which
the subsidiary was a member immediately before the making of a
disposal or an agreement in relation to which paragraph 1(3)
applied.

15Transfers of property, rights and liabilities by transfer schemes

3 In paragraphs 4 to 6—

• a “relevant transfer” means a transfer of any property, rights or
  liabilities by or under a transfer scheme under section 8, and

• “transferor” and “transferee” have the same meaning as in Schedule 1.

4 20For the purposes of the Taxation of Chargeable Gains Act 1992 a disposal
constituted by a relevant transfer is to be treated in relation to the transferor
and transferee as made for a consideration such that no gain or loss accrues
to the transferor.

5 For the purposes of Chapter 4 of Part 5 of the Corporation Tax Act 2009 (loan
25relationships: continuity of treatment on transfers within groups or on
reorganisations) the transferor and transferee are to be treated in relation to
a relevant transfer as if, for the purposes of the transfer, they were members
of the same group.

6 (1) For the purposes of Part 8 of the Corporation Tax Act 2009 (intangible fixed
30assets) a relevant transfer of a chargeable intangible asset is to be treated as
tax-neutral.

(2) Part 4 of the Taxation (International and Other Provisions) Act 2010 (transfer
pricing) does not apply in relation to a transfer to which sub-paragraph (1)
applies.

(3) 35For the purposes of section 882 of the Corporation Tax Act 2009 (application
of Part 8 to assets created or acquired on or after 1 April 2002) assets acquired
by a transferee on a relevant transfer are to be treated as if they were
acquired from a person who at the time of the acquisition was a related
party.

40Transfers of securities of original holding company or its subsidiaries

7 (1) This paragraph applies where—

(a) there is a disposal of securities of the original holding company or
any of its subsidiaries, and

(b) immediately before the disposal, the original holding company or (as
45the case may be) the subsidiary was a 51% subsidiary of the Crown.

(2) The degrouping provisions are not to apply by reason of the disposal or any
agreement to make the disposal (if they otherwise would).

(3) For the purposes of this paragraph “51% subsidiary” has the same meaning
as it has for the purposes of the Corporation Tax Acts (see Chapter 3 of Part
524 of the Corporation Tax Act 2010), but—

(a) the Crown is to be treated as a body corporate, and

(b) for the purpose of determining beneficial ownership the making of
an agreement to make the disposal is to be ignored.

8 (1) This paragraph applies where—

(a) 10paragraph 7 has applied at any time in relation to a disposal or an
agreement to make a disposal,

(b) there is a subsequent disposal of securities of the original holding
company or any of its subsidiaries in relation to which paragraph 7
does not apply, and

(c) 15immediately before the subsequent disposal or the making of an
agreement to make it, the original holding company or (as the case
may be) the subsidiary was a member of a new group.

(2) For the purposes of the application of a degrouping provision in the case of
that disposal or agreement—

(a) 20the company from which the original holding company or (as the
case may be) the subsidiary acquired relevant assets or chargeable
interests is to be treated as if it had been a member of the new group
at the time the relevant assets or chargeable interests were acquired,
and

(b) 25that company is to be treated as if it were a member of the new group
immediately before the disposal or the making of the agreement
mentioned in sub-paragraph (1)(c).

(3) “Relevant assets or chargeable interests” means assets or chargeable
interests in relation to which, but for paragraph 7, the degrouping provision
30in question would have applied by reason of the disposal or agreement
mentioned in sub-paragraph (1)(a).

(4) In this paragraph—

(a) references to a group have the same meaning as in the degrouping
provision in question, and

(b) 35references to a new group are to a group other than a group of which
the original holding company or (as the case may be) the subsidiary
was a member immediately before the making of a disposal or an
agreement in relation to which paragraph 7 applied.

Sections 38 and 50

SCHEDULE 3 Further provision about access conditions

Part 1 Provision that may be made by access conditions

5Introduction

1 Access conditions imposed on a person may include provision of the kind
mentioned in the following provisions of this Part of this Schedule.

Terms of access

2 An access condition imposed on a person may include provision—

(a) 10requiring the terms and conditions on which the person is willing to
offer access to include such terms and conditions as may be specified
or described in the condition, or

(b) requiring the person to make such modifications as OFCOM may
direct of any offer which sets out the terms and conditions on which
15the person is willing to offer access.

Price controls etc.

3 (1) An access condition imposed on a person may include provision imposing
on the person—

(a) such price controls as OFCOM may direct in relation to matters
20connected with the giving of access (“access matters”),

(b) rules made by OFCOM in relation to access matters about the
identification of costs and cost orientation,

(c) rules made by OFCOM for those purposes about the use of cost
accounting systems,

(d) 25obligations to have compliance with those systems audited annually
by a qualified independent auditor, and

(e) obligations to adjust prices in accordance with directions given by
OFCOM.

(2) An obligation within sub-paragraph (1)(d) may require the person to meet
30the costs of the audit.

(3) In sub-paragraph (1)(d) “qualified independent auditor” means a person
who—

(a) is eligible for appointment as a statutory auditor under Part 42 of the
Companies Act 2006, and

(b) 35if the appointment were an appointment as a statutory auditor,
would not be prohibited from acting by section 1214 of that Act
(independence requirement).

4 An access condition may include provision requiring the application of
presumptions in the fixing and determination of costs and charges for the
40purposes of the price controls, rules and obligations referred to in paragraph
3.