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Energy Bill [HL]


Energy Bill [HL]
Schedule 8 — Pensions
Part 4 — Other transfers

194

 

reference to which paragraph 9(7) will apply to him immediately

before the relevant time; and

(b)   

in other cases, the scheme by reference to which paragraph 9(7)

applied to him immediately before the time that was the relevant

time in relation to him on the first occasion on which he was owed

5

such a duty;

           

and the reference, in relation to such a person, to the provisions of that

scheme is a reference to its provisions as in force immediately before the

time specified in sub-paragraph (7).

      (7)  

That time is—

10

(a)   

in a case falling within sub-paragraph (6)(a), the relevant time; or

(b)   

in a case falling within sub-paragraph (6)(b), the relevant time in

relation to the person on the first occasion on which he was owed a

duty under either sub-paragraph (2) or paragraph 11(3).

      (8)  

Where a person—

15

(a)   

is a participant in a non-nuclear pension scheme by virtue of the

exercise of an option in a case in which the Secretary of State

discharged his duty to that person under sub-paragraph (2) by

reference to that option, or

(b)   

is or will become entitled to exercise an option to become a

20

participant in such a pension scheme in a case in which the Secretary

of State discharged his duty to that person under sub-paragraph (2)

by reference to that entitlement,

           

this Part of this Schedule shall have effect in relation to that person as if that

scheme were a nuclear pension scheme.

25

      (9)  

Sub-paragraph (8) does not apply in relation to a person to whom paragraph

9(5)(d)(ii) applied when the Secretary of State discharged his duty to that

person under sub-paragraph (2) unless the person’s employer exercises the

entitlement mentioned in paragraph 9(5)(d)(ii).

     (10)  

In this paragraph “relevant time” has the same meaning as in paragraph 9.

30

Protection on a transfer in accordance with transfer arrangements

11    (1)  

It shall be the duty of the NDA to secure that provision is made for ensuring

that consultation with the persons specified in sub-paragraph (2) takes place

before any transfer arrangements in relation to which persons are entitled to

pension protection take effect.

35

      (2)  

Those persons are—

(a)   

the NDA itself;

(b)   

the Secretary of State;

(c)   

the Treasury;

(d)   

persons appearing to the NDA to represent persons who will be

40

entitled to pension protection in relation to the arrangements.

      (3)  

Before such transfer arrangements take effect, the NDA must satisfy itself

that every person entitled to pension protection in relation to the

arrangements will be entitled, by virtue of the employment that he will hold

after the relevant time—

45

(a)   

to exercise an option of becoming a participant in an appropriate

pension scheme; or

 

 

Energy Bill [HL]
Schedule 8 — Pensions
Part 4 — Other transfers

195

 

(b)   

in the case of a person to whom paragraph 9(7)(c) will apply

immediately before the relevant time, to exercise such an option on

or before attaining the age or fulfilling the condition in question.

      (4)  

The NDA’s duty under sub-paragraph (3) is owed to every person who is

entitled to pension protection in relation to the transfer arrangements.

5

      (5)  

In the case of a person to whom paragraph 9(5)(d)(ii) applies, the references

in sub-paragraph (3) to a person being entitled to exercise an option are to

be construed as references to a person being entitled to exercise an option if

his employer exercises the entitlement mentioned in paragraph 9(5)(d)(ii).

      (6)  

For the purposes of sub-paragraph (3), a pension scheme is an appropriate

10

pension scheme in relation to a person if the NDA is satisfied that—

(a)   

taking into account the other benefits (if any) that are conferred on or

made available to him as a result of the employment that he will hold

after the relevant time, and

(b)   

taking the benefits that are available under the provisions of that

15

pension scheme as a whole,

           

the benefits that are available under those provisions are no less favourable

than the benefits available under the provisions (taken as a whole) of the

nuclear pension scheme in respect of which he is entitled to protection under

this Part of this Schedule.

20

      (7)  

In sub-paragraph (6) the reference to the scheme in respect of which a person

is entitled to protection under this Part of this Schedule is a reference to—

(a)   

in the case of a person who has not previously been owed a duty

under either sub-paragraph (3) or paragraph 10(2), the scheme by

reference to which paragraph 9(7) will apply to him immediately

25

before the relevant time; and

(b)   

in other cases, the scheme by reference to which paragraph 9(7)

applied to him immediately before the time that was the relevant

time in relation to him on the first occasion on which he was owed

such a duty;

30

           

and the reference, in relation to such a person, to the provisions of that

scheme is a reference to its provisions as in force immediately before the

time specified in sub-paragraph (8).

      (8)  

That time is—

(a)   

in a case falling within sub-paragraph (7)(a), the relevant time; or

35

(b)   

in a case falling within sub-paragraph (7)(b), the relevant time in

relation to the person on the first occasion on which he was owed a

duty under either sub-paragraph (3) or paragraph 10(2).

      (9)  

Where a person—

(a)   

is a participant in a non-nuclear pension scheme by virtue of the

40

exercise of an option in a case in which the NDA discharged its duty

to that person under sub-paragraph (3) by reference to that option, or

(b)   

is or will become entitled to exercise an option to become a

participant in such a pension scheme in a case in which the NDA

discharged its duty to that person under sub-paragraph (3) by

45

reference to that entitlement,

           

this Part of this Schedule shall have effect in relation to that person as if that

scheme were a nuclear pension scheme.

     (10)  

Sub-paragraph (9) does not apply in relation to a person to whom paragraph

9(5)(d)(ii) applied when the NDA discharged its duty to that person under

50

 

 

Energy Bill [HL]
Schedule 8 — Pensions
Part 5 — UKAEA pensions for employees of designated BNFL companies

196

 

sub-paragraph (3) unless the person’s employer exercises the entitlement

mentioned in paragraph 9(5)(d)(ii).

     (11)  

In this paragraph “relevant time” has the same meaning as in paragraph 9.

Modification of NDA schemes

12    (1)  

The Secretary of State shall have power by direction to make such

5

modifications of an NDA pension scheme as he considers appropriate for

the purpose of securing—

(a)   

in relation to any proposed transfer, or

(b)   

in relation to transfers that he considers may occur,

           

that the scheme will be an appropriate pension scheme for the purposes of

10

paragraph 10 or 11.

      (2)  

The NDA shall also have power by direction to make such modifications of

an NDA pension scheme as it considers appropriate for the purpose of

securing—

(a)   

in relation to any proposed transfer, or

15

(b)   

in relation to transfers that it considers may occur,

           

that the scheme will be an appropriate pension scheme for the purposes of

paragraph 10 or 11.

      (3)  

Before making a modification under this paragraph the Secretary of State

must consult—

20

(a)   

the NDA; and

(b)   

such persons as appear to him to represent the employees likely to be

affected by the modification.

      (4)  

Before making a modification under this paragraph the NDA must—

(a)   

consult such persons as appear to it to represent the employees likely

25

to be affected by the modification; and

(b)   

obtain the consent of the Secretary of State to the modification.

Part 5

UKAEA pensions for employees of designated BNFL companies

13    (1)  

A UKAEA pension scheme may apply to employees of a designated BNFL

30

company which is publicly controlled as it applies to persons to whom it

applies apart from this paragraph.

      (2)  

The Secretary of State may, by direction, require the UKAEA to make such

modifications of a UKAEA pension scheme as the Secretary of State

considers appropriate in respect of the participation in such a scheme of

35

employees of a designated BNFL company which is publicly controlled.

      (3)  

The Secretary of State may also, by direction, require the UKAEA to make

such modifications of a UKAEA pension scheme as the Secretary of State

considers appropriate for applying the provisions of such a scheme to

persons—

40

(a)   

who are directors, or other officers, of a designated BNFL company

which is publicly controlled; and

(b)   

who are not employees of that company.

 

 

Energy Bill [HL]
Schedule 9 — Taxation provisions relating to nuclear transfer schemes
Part 1 — Transfers to the NDA or a subsidiary of the NDA

197

 

      (4)  

A direction under this paragraph may require the UKAEA to make such

supplemental, consequential and transitional provision modifying a

UKAEA pension scheme as the Secretary of State considers appropriate.

      (5)  

Before giving a direction under this paragraph, the Secretary of State must

consult—

5

(a)   

the UKAEA;

(b)   

the designated BNFL company in question;

(c)   

the Treasury; and

(d)   

such persons as appear to him to represent the employees, or

directors or other officers, likely to be affected by the direction.

10

      (6)  

The power of the Secretary of State to give directions under this paragraph—

(a)   

is in addition to the powers of the Secretary of State to give directions

to the UKAEA under paragraphs 5 and 6 of this Schedule or section

3 of the Atomic Energy Authority Act 1954 (c. 32); and

(b)   

is to be disregarded in construing those powers.

15

      (7)  

A designated BNFL company must pay such amounts to the UKAEA in

respect of the participation in a pension scheme by virtue of this paragraph

of employees of the company, or of any of its directors or other officers, as

are—

(a)   

agreed between the company and the UKAEA; or

20

(b)   

in the absence of such agreement, determined by the Secretary of

State.

      (8)  

In this paragraph “designated BNFL company” has the same meaning as in

Schedule 7.

Schedule 9

25

Section 47

 

Taxation provisions relating to nuclear transfer schemes

Part 1

Transfers to the NDA or a subsidiary of the NDA

Trading losses: transfer of company carrying on exempt activities

1     (1)  

This paragraph applies for the purposes of corporation tax where—

30

(a)   

in consequence of a section 39 scheme, a company which is not an

NDA company becomes an NDA company falling within section

27(4)(a); and

(b)   

the company carried on exempt activities before the coming into

force of the scheme.

35

      (2)  

Trading losses attributable to the exempt activities carried on by the

company before the coming into force of the scheme shall be treated, in

relation to accounting periods beginning at or after that time, as

extinguished.

      (3)  

For the purpose of determining the extent to which trading losses incurred

40

by a company are attributable to exempt activities, such apportionments of

receipts, expenses, assets and liabilities shall be made as may be just.

 

 

Energy Bill [HL]
Schedule 9 — Taxation provisions relating to nuclear transfer schemes
Part 1 — Transfers to the NDA or a subsidiary of the NDA

198

 

Trading losses: transfer of undertaking carrying on exempt activities

2     (1)  

This paragraph applies for the purposes of corporation tax where—

(a)   

a company (“the transferor company”) which is not an NDA

company is carrying on a trade which consists in or includes exempt

activities; and

5

(b)   

in consequence of a section 39 scheme—

(i)   

the transferor company ceases to carry on that trade or a part

of it which consists in or includes such activities; and

(ii)   

the NDA or an NDA company begins to carry on that trade

or that part of it.

10

      (2)  

Trading losses attributable to so much of the trade or part of a trade as

consists in exempt activities carried on by the transferor company before the

time when the NDA or the NDA company begins to carry on the trade or

that part of it shall be treated, in relation to accounting periods ending after

that time, as extinguished.

15

      (3)  

Subsections (3), (4A), (7) to (9) and (11) of section 343 of the Taxes Act

(company reconstruction without change of ownership) shall apply in

relation to an unextinguished loss sustained by the transferor company in

carrying on the trade or the part of it in question as if—

(a)   

the case were a case falling within subsection (1) of that section;

20

(b)   

the transferor company were the predecessor; and

(c)   

the NDA or the NDA company in question were the successor.

Chargeable gains: assets to be treated as disposed without a gain or a loss

3     (1)  

This paragraph applies for the purposes of the 1992 Act where there is a

transfer of an asset to the NDA or a subsidiary of the NDA in accordance

25

with a section 39 scheme.

      (2)  

The asset shall be treated as disposed of to the NDA or (as the case may be)

to its subsidiary for a consideration of such amount as would secure that, on

the disposal, neither a gain nor a loss accrues to the transferor.

      (3)  

This paragraph has effect subject to paragraph 4.

30

      (4)  

This paragraph does not apply in relation to a transfer to the NDA or to a

subsidiary of the NDA in accordance with a nuclear transfer scheme of

securities of a company, in consequence of which that company ceases to be

a relevant site licensee.

      (5)  

In this paragraph “relevant site licensee” has the same meaning as in

35

subsection (4) of section 27 (see subsection (5)).

Chargeable gains: assets treated as acquired at nil cost

4     (1)  

This paragraph applies for the purposes of the 1992 Act where the NDA or

a subsidiary of the NDA disposes of an asset which—

(a)   

was acquired by the NDA or that subsidiary in accordance with a

40

section 39 scheme or a section 40 scheme; and

(b)   

is not an asset which, immediately before its transfer to the NDA or

that subsidiary, was comprised in the Nuclear Liabilities Investment

Portfolio.

 

 

Energy Bill [HL]
Schedule 9 — Taxation provisions relating to nuclear transfer schemes
Part 1 — Transfers to the NDA or a subsidiary of the NDA

199

 

      (2)  

No amount shall be allowable as a deduction under section 38(1)(a) or (b) of

the 1992 Act (acquisition and enhancement costs) in the computation of the

gain accruing on the disposal.

      (3)  

Accordingly, in a case where the disposal is one which under any enactment

is treated as a disposal on which neither a gain nor a loss accrues to the NDA

5

or its subsidiary, the consideration for the disposal shall be treated as equal

to the amount allowable as a deduction from that consideration under

section 38(1)(c) of the 1992 Act (incidental costs of disposal).

      (4)  

This paragraph does not apply in the case of a disposal which under

paragraph 29 is to be treated as a disposal on which neither a gain nor a loss

10

accrues to the NDA or a subsidiary of the NDA.

Chargeable gains: degrouping charges

5     (1)  

This paragraph applies if a company (“the degrouped company”)—

(a)   

acquired an asset from another company at a time when both were

members of the same group of companies (“the old group”); and

15

(b)   

ceases, by virtue of a transfer to the NDA or a subsidiary of the NDA

in accordance with a section 39 scheme, to be a member of the old

group.

      (2)  

Section 179 of the 1992 Act (company ceasing to be member of group) is not

to treat the degrouped company as having by virtue of the transfer sold and

20

immediately reacquired the asset.

      (3)  

Where sub-paragraph (2) has applied to an asset, section 179 of the 1992 Act

is to have effect on and after the first subsequent occasion on which the

degrouped company ceases to be a member of a group of companies (“the

new group”) as if—

25

(a)   

the degrouped company, and

(b)   

the company from which it acquired the asset,

           

had been members of the new group at the time of acquisition.

      (4)  

Expressions used in this paragraph and in section 179 of the 1992 Act have

the same meanings in this paragraph as in that section.

30

Chargeable gains: disposal of debts

6     (1)  

This paragraph applies if—

(a)   

a debt owed to any person is transferred to the NDA or a subsidiary

of the NDA in accordance with a section 39 scheme; and

(b)   

the transferor would (apart from this paragraph) be the original

35

creditor in relation to that debt for the purposes of section 251 of the

1992 Act (disposal of debts).

      (2)  

The 1992 Act is to have effect as if the NDA or (as the case may be) its

subsidiary (and not the transferor) were the original creditor for those

purposes.

40

Capital allowances: transfer of whole trade

7     (1)  

This paragraph applies where—

(a)   

a company (“the transferor company”) which is not a subsidiary of

the NDA is carrying on a trade; and

 

 

Energy Bill [HL]
Schedule 9 — Taxation provisions relating to nuclear transfer schemes
Part 1 — Transfers to the NDA or a subsidiary of the NDA

200

 

(b)   

in consequence of a section 39 scheme, the transferor company ceases

to carry on that trade and the NDA or a subsidiary of the NDA

begins to carry it on.

      (2)  

For the purposes of the allowances and charges provided for by the 2001 Act,

the trade is not to be treated as permanently discontinued, nor a new trade

5

as set up; but sub-paragraphs (3) and (4) of this paragraph are to apply.

      (3)  

There are to be made to or on the NDA or (as the case may be) its subsidiary,

in accordance with the 2001 Act, all such allowances and charges as would,

if the transferor company had continued to carry on the trade, have fallen to

be made to or on that company.

10

      (4)  

The amounts of those allowances and charges are to be computed as if—

(a)   

the NDA or its subsidiary had been carrying on the trade since the

transferor company began to do so; and

(b)   

everything done to or by the transferor company had been done to

or by the NDA or that subsidiary;

15

           

but so that transfers in accordance with the section 39 scheme, so far as they

relate to assets in use for the purposes of the trade, shall not be treated as

giving rise to an allowance or charge.

Capital allowances: transfer of part of a trade

8     (1)  

Where—

20

(a)   

a company (“the transferor company”) which is not a subsidiary of

the NDA is carrying on a trade, and

(b)   

in consequence of a section 39 scheme, the transferor company ceases

to carry on that trade and the NDA or a subsidiary of the NDA

begins to carry on activities of the trade as part of a trade carried on

25

by the NDA or that subsidiary,

           

then that part of the trade carried on by the NDA or its subsidiary shall be

treated for the purposes of paragraph 7 as a separate trade.

      (2)  

Where—

(a)   

a company (“the transferor company”) which is not a subsidiary of

30

the NDA is carrying on a trade, and

(b)   

in consequence of a section 39 scheme, the transferor company ceases

to carry on a part of that trade and the NDA or a subsidiary of the

NDA begins to carry on activities of that part of that trade,

           

then the transferor company shall be treated for the purposes of paragraph

35

7 and sub-paragraph (1) of this paragraph as having carried on that part of

its trade as a separate trade.

      (3)  

Where activities fall to be treated for the purposes of this paragraph as a

separate trade, such apportionments of receipts, expenses, assets and

liabilities shall be made for the purposes of the 2001 Act as may be just.

40

Capital allowances: transfer of plant or machinery

9     (1)  

This paragraph applies where—

(a)   

there is a transfer of property to the NDA or a subsidiary of the NDA

in accordance with a section 39 scheme;

(b)   

the property is plant or machinery; and

45

(c)   

paragraph 7 does not apply in relation to the transfer of the plant or

machinery.

 

 

 
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