Clause 583: Charge to tax on income from disposals of know-how

834.     Clauses 583 to 586 all relate to consideration received for the disposal of know-how. Clause 583 charges to tax the proceeds of certain disposals of know-how. It is based on section 531 of ICTA. Under the source legislation, income from disposals of know-how is charged to tax under Schedule D Case VI.

835.     Section 531(6) of ICTA, which categorises a charge under section 531(4) of ICTA as "earned income", is repealed in this Bill and rewritten in new section 833(5A) of ICTA. The concept of "earned income" in the context of know-how will now only be relevant for the purposes of section 282A of ICTA (jointly held property).

836.     Subsection (1) imposes the tax charge. Subsection (1)(b) is based on section 531(8) of ICTA but the words "whether absolute or qualified" have been omitted since they are superfluous. The word "profits" has been used here as it more accurately describes the sum which, after deduction of certain expenditure, is chargeable to tax.

837.     Subsection (5) defines "mineral deposits" for the purposes of this Chapter. This restores, for income tax purposes, a definition of "mineral deposit" that applied before CAA was enacted. See Change 51 in Annex 1.

Clause 584: Exceptions to charge under section 583

838.     This clause sets out the exceptions to the charge under clause 583. It is based on section 531 of ICTA.

839.     For the purposes of subsections (4) and (5), of the clause, "control" is defined (through clause 878(6)) by reference to section 840 of ICTA. The ICTA definition of "control" is identical in effect to that in section 574 of CAA. But as the relevance of "control" in this Bill goes wider than this Chapter, the ICTA definition is used here.

Clause 585: Income charged under section 583

840.     This clause sets out the amount charged to tax under clause 583. It is based on sections 69 and 531 of ICTA. There is no exclusion for sums calculated under the remittance basis by clause 832 because, under the source legislation, income from the disposal of know-how is charged under Schedule D Case VI (to which the remittance basis does not apply).

841.     Subsection (3) ensures that expenditure may be deducted only once under this clause and does not permit a deduction if relief has been obtained for the expenditure elsewhere (for example, as trading expenditure or by way of an allowance under CAA).

842.     Subsection (4) contains a signpost to clause 603 which deals with contributions to expenditure. This is necessary because section 532 of ICTA treats section 531 of ICTA as if it had been contained in CAA.

Clause 586: Person liable for tax under section 583

843.     This clause states who is liable for any tax charged under clause 583. It is based on section 531 of ICTA. The specific rules in section 531 of ICTA override the general "person chargeable" rule for Schedule D in section 59(1) of ICTA.

Clause 587: Charge to tax on income from sales of patent rights

844.     Clauses 587 to 599 deal with sales of patent rights. Clause 587 charges to tax capital sums from the sale of patent rights. It is based on section 524 of ICTA. The charge under this clause applies equally to both traders and non-traders.

845.     Section 529 of ICTA, which categorises certain income patent rights as "earned income", is repealed in this Bill and rewritten in new section 833(5B) to (5E) of ICTA.

846.     Subsection (1) taxes "profits" from the sales of patent rights. The word "profits" has been used here as it more accurately describes the sum which, after deduction of certain expenditure, is chargeable to tax.

847.     Subsection (2) contains a special rule providing that non-UK residents are taxed only on profits from the sale of United Kingdom patent rights. UK residents are taxed on profits from the sale of patent rights granted under the laws of the United Kingdom or any other country or territory.

848.     Subsection (3) provides that tax is not charged where the seller is a non-UK resident company chargeable to corporation tax (for example, trading in the United Kingdom through a branch or agency). Section 524(5) of ICTA sets out which persons are chargeable to income tax and which to corporation tax under section 524(3) of ICTA. This is necessary because sections 6 and 11 of ICTA, which generally deal with the income tax/corporation tax split, are drafted in terms of "income". Section 524(5) of ICTA explains how the split is to work in the case of the capital sums charged to tax under section 524(3) of ICTA. Subsection (3) of this clause makes it clear that a non-UK resident company chargeable to corporation tax is not chargeable to income tax in respect of capital sums from the sale of patent rights.

Clause 588: Income charged under section 587

849.     This clause sets out the amount charged to tax on profits from the sale of patent rights under clause 587. It is subject to the spreading rules in clause 590 to clause 594. The clause is based on section 524 of ICTA.

850.     There is no exclusion for sums calculated under the remittance basis under clause 832 because, under the source legislation, profits from the sale of patent rights are charged to tax under Schedule D Case VI (to which the remittance basis does not apply).

851.     Subsection (1) provides that the profits are the proceeds of sale less the deductible costs. The reference to "net proceeds of the sale" in section 524(3) of ICTA implies that some deduction is available, but the source legislation does not further specify which amounts are deductible. The clause makes it clearer what amounts may be deducted.

852.     Subsection (2) defines deductible costs as the capital cost of the rights sold plus any incidental expenses of sale. The clause makes it explicit that such expenses may be deducted. The types of expenses which may be allowed under this clause are not listed. Incidental expenses which relate to both capital sale proceeds and other sums not chargeable to tax under clause 587 are effectively apportioned under the rules about net proceeds of sale in clause 606.

853.     Subsection (5) contains a signpost to clause 603 which deals with contributions to expenditure. This is necessary because section 532 of ICTA treats section 524 of ICTA as if it had been contained in CAA. There is also a signpost here to the special rules giving relief from tax on patent income in clause 600.

Clause 589: Person liable for tax under section 587

854.     This clause states who is liable for any tax charged under clause 587. It is based on section 524 of ICTA. The specific rules in section 524 of ICTA override the general "person chargeable" rule for Schedule D in section 59(1) of ICTA.

Clause 590: UK resident sellers: spreading rules

855.     This clause sets out the spreading rules where the person chargeable under clause 587 is resident in the United Kingdom. It is based on section 524 of ICTA.

856.     Section 524 of ICTA imposes a charge to tax where a person sells all or any part of any patent rights and the net proceeds of sale consist wholly or partly of a capital sum. There are separate charges for sellers who are resident in the United Kingdom (this clause) and non-resident sellers of UK patent rights (clause 591 and clause 592).

857.     For both residents and non-residents, tax is charged (depending on whether or not an election is made) either:

• in respect of the whole sum, in the tax year in which it is received, or

• on one sixth of the sum in that year and in each of the next five tax years.

858.     A "sum" to which the above rules apply could be either the whole sale proceeds or an instalment of the proceeds. So, for instance, where a UK resident seller has not elected otherwise, any receipt of an instalment of sale proceeds charged under the source legislation (section 524(1) of ICTA) would trigger the start of a six year period over which the charge for that instalment would be spread.

859.     In this Chapter, the way in which the rules on the timing of the tax charge apply to instalments is dealt with expressly.

860.     Subsection (3) allows the person chargeable to elect to be taxed on the whole amount in the first tax year, subject to the time limit for the normal self-assessment filing date for the tax year concerned (see also subsection(6)).

861.     Subsection (6) contains the time limit for elections under this clause. The source legislation refers to "an officer of the Board" and the effect of this is maintained by clause 878(4) which draws attention to the rules in TMA, which apply for the purposes of this Bill. Those rules require elections to be made to "an officer of the Board".

Clause 591: Non-UK resident sellers: election for spreading

862.     This clause sets out how non-UK residents are taxed on capital sums from the sale of patent rights where the sale proceeds are not received in instalments. It is based on sections 524 and 69 of ICTA.

863.     Subsection (1) provides that the whole amount chargeable is taxed in the tax year in which the proceeds are received. This is subject to an election for spreading in subsection (2).

864.     Subsection (2) enables the person chargeable to elect to be taxed over six tax years beginning with the tax year in which the proceeds of sale are received. This has been brought into line with clause 590 which covers UK residents. Section 524(3) of ICTA provides that if a non-UK resident chargeable to tax makes an election, the proceeds received are treated as if they were chargeable to tax over six years and the liability is calculated as though the sum were spread over six years. But the effect is the same and there is no reason why the wording in these two clauses should not be consistent. However, the source legislation would have been interpreted in this way so this clarification does not amount to a change in the law.

865.     Subsection (3) sets out the time limit for making an election under subsection (2) to the Inland Revenue. The reference in section 524(4) of ICTA to "the Board" has not been reproduced. Clause 878(4) draws attention to the rules in TMA, which apply for the purposes of this Bill. Those rules require elections to be made to "an officer of the Board". See Change 149 in Annex 1.

866.     Section 524(10) of ICTA is not rewritten. Section 524 of ICTA prescribes particular tax treatments with alternatives available by election. Section 524(10) of ICTA requires claims for relief under that provision to be made to the Board. The claim referred to in subsection (10) relates to capital sums received from the sale of patent rights to be spread over six years for the purposes of charging the sum to tax. As spreading is automatic for UK residents, the claim can only be relevant to non-UK residents. However, section 524(1) of ICTA refers to "a claim" and section 524(4) of ICTA, which deals with "spreading" rules for non-UK residents, refers to "the election". Section 524(10) of ICTA is, therefore, superfluous.

Clause 592: Further provision about elections for spreading: instalments

867.     This clause sets out how non-UK residents are taxed on capital sums from the sale of patent rights where the sale proceeds are received in instalments. It is based on sections 69 and 524 of ICTA.

868.     Subsection (2) sets out the rule for making an election for spreading where sale proceeds are received in instalments. This makes explicit in the clause what was implicit in the source legislation.

869.     Subsection (3) contains the time limit for making an election under subsection (2). The reference in section 524(4) of ICTA to "the Board" has not been reproduced. Clause 878(4) draws attention to the rules in TMA, which apply for the purposes of this Bill. Those rules require elections to be made to "an officer of the Board". See Change 149 in Annex 1.

Clause 593: Death of seller

870.     This clause deals with the case where a seller of patent rights dies before the end of the six year spreading period under clauses 590, 591 or 592. It is based on section 525 of ICTA.

871.     Subsection (2) provides that personal representatives may elect for a reduction in the tax charged under subsection (1) based on "the lifetime tax years". The term "personal representatives" is now defined in clause 878(1).

872.     Subsection (3) defines "lifetime tax years" for the purposes of subsection (2). The subsection also deals with sale proceeds which are received in instalments. This makes explicit in the clause what was implicit in the source legislation.

873.     Subsection (4) contains the time limit for making an election under subsection (2). The reference in section 525(2) of ICTA to "the inspector" has not been reproduced. Clause 878(4) draws attention to the rules in TMA, which apply for the purposes of this Bill. Those rules require elections to be made to "an officer of the Board". See Change 149 in Annex 1.

874.     The time limit in section 525(2) of ICTA has been changed to fit in with the normal self-assessment filing date for the year in which the death occurs. See Change 104 in Annex 1.

Clause 594: Winding up of a body corporate

875.     This clause deals with a body corporate which is chargeable to income tax under clause 587 where the body corporate commences to be wound up. It is based on section 525 of ICTA.

876.     The clause applies where, for example, a company not resident in the United Kingdom (and not trading in the United Kingdom through a branch or agency) disposes of UK patent rights, makes an election for spreading under clause 591 or clause 592 and is subsequently wound up before the expiry of the six year spreading period.

877.     Subsection (2) also deals with amounts arising to the corporate body in a fiduciary or representative capacity (for example, corporate trustees) which would have been chargeable to income tax in later tax years under clause 590(2) or (4).

Clause 595: Deduction of tax from payments to non-UK residents

878.     This clause contains rules relating to the deduction of tax from payments to non-UK residents where a charge arises under clause 587 on profits from the sale of the whole or any part of any patent rights. It is based on section 524 of ICTA.

879.     Subsection (2) provides that the capital costs in clause 588 shall not affect the amount of income tax to be deducted under section 349(1) of ICTA and assessed under section 350 of ICTA. The reference in section 524(9) of ICTA to "section 349(1) and (3)" was clearly intended to read "sections 349(1) and 350". This has been corrected in the consequential amendment which inserts section 349ZA into ICTA.

880.     Subsection (3) provides that sections 349ZA and 350 of ICTA are not affected by any election under this Chapter for spreading provisions to apply. The reference to instalments makes explicit in the clause what was implicit in the source legislation.

Clause 596: Adjustments where tax has been deducted

881.     This clause contains rules relating to adjustments which may be necessary where tax has been deducted from payments to a non-UK resident under subsection (2) of clause 595. It is based on section 524 of ICTA.

882.     Subsection (2) provides that, where an election for spreading has been made, the necessary adjustments are to be made by treating one sixth of the sum deducted from the proceeds of sale or instalment as income tax paid for each of the six years. The reference to instalments makes explicit in the clause what was implicit in the source legislation.

Clause 597: Licences connected with patents

883.     This clause provides some definitions connected with patents which extend the meaning of patent rights for the purposes of clause 587 to clause 596. The definitions relate to licences and are based on section 533 of ICTA.

Clause 598: Rights to acquire future patent rights

884.     This clause deals with the sale of rights to acquire patent rights in the future, before the patent has been granted. It is based on section 533 of ICTA.

885.     Subsection (1) provides that a sum paid to obtain an option to acquire future patent rights is to be treated as the purchase of patent rights in the hands of the payer and a sale of patent rights in the hands of the recipient. Any capital sum received is therefore chargeable under clause 587 on the recipient and the payer may obtain relief for the expenditure under clause 588 when the rights acquired are disposed of.

886.     The clause makes it more explicit than the source legislation that there is a deemed sale of patent rights where an option to acquire future patent rights is sold or granted and also clarifies the position regarding the costs of such options. However, the clause does not change the law since the source legislation would have to be read in this way.

Clause 599: Sums paid for Crown use etc. treated as paid under licence

887.     This clause provides that sums paid for Crown use, or by a government of a country outside the United Kingdom, in certain circumstances are to be treated as having been paid under a licence. It is based on section 533 of ICTA.

888.     Subsection (1) sets out the conditions under which sums paid in respect of an invention which is the subject of a patent and used in the service of the Crown, or the government of a country outside the United Kingdom, are be treated as having been paid under a licence. The treatment of licences connected with patents is dealt with in clause 597.

889.     The reference in section 533(4) of ICTA to "sections 46 to 49 of the Patents Act 1949" has not been reproduced in this clause. This is because patents granted under these provisions have ceased to have effect so it is unnecessary to reproduce this reference. The removal of this unnecessary material follows the line adopted in section 482 of CAA.

890.     The words "used" and "use" in this clause (which correspond with the relieving legislation in section 482 of CAA) are intended to be read widely and cover "make" and "sell".

Clause 600: Relief for expenses: patent income

891.     This clause provides relief for certain expenditure in connection with patents. The clause sets out the nature of the expenditure for which relief may be given under clause 601. It is based on sections 526 and 528 of ICTA. The deduction is on the basis of expenses incurred. This relaxes any requirement in the source legislation that fees have to be paid before a deduction can be made.

892.     Subsection (2) defines "inventor's expenses" for the purpose of this clause. To the extent that relief is not given elsewhere (for example, as a deduction, where appropriate, in calculating trade profits) a claim may be made under this clause for such expenses to be relieved against income from patents.

893.     The word "net" in "the net amount of any expenses" in section 526(2) of ICTA has not been reproduced. This word is superfluous having regard to subsection (6) of the clause which contains a signpost to clause 603 (contributions to expenditure).

894.     Subsection (3) defines "patent application and maintenance expenses" for the purposes of this clause. Relief for such expenses is excluded from the scope of this clause if the expenditure is incurred for the purposes of a trade carried on by the payer. This is because there is a similar provision in clause 89 for trading expenses connected with patents.

895.     Subsection (5) excludes from the scope of this clause expenditure for which relief is given elsewhere. Section 526(2) of ICTA applies this rule only to expenditure incurred by the inventor and now covered by subsection (1)(a) of this clause. Section 526(2) of ICTA provides that relief could not be given more than once for expenditure incurred in devising an invention for which a patent has been granted. There is no such explicit double deduction prohibition in section 526(1) of ICTA which deals with expenditure incurred in the grant, extension etc of a patent. To avoid any possible confusion, however, the clause prevents a double allowance in respect of all relevant expenditure. This makes clear the implicit rule that the legislation does not enable such expenses to be relieved twice.

896.     Subsection (6) contains a signpost to clause 603 which deals with contributions to expenditure. This is necessary because section 532 of ICTA treats section 526 and 528 of ICTA as if those provisions had been contained in CAA.

Clause 601: How relief is given under section 600

897.     This clause sets out how relief is to be given where a claim is made under clause 600 for patent expenses to be set against patent income. It is based on sections 526, 528 and 533 of ICTA.

898.     Subsection (2) allows relief for expenditure against patent income in the tax year in which the expenditure is incurred. However, if the expenses exceed the patent income in the tax year, the surplus expenses cannot be used to create a loss under this clause.

899.     Subsection (3) provides that the excess of eligible expenses over income in a tax year is carried forward and set off against patent income in the next tax year and so on until the expenses have been fully relieved. The carry forward to future years is automatic and no additional claim needs to be made.

900.     Subsection (5) reproduces the ordering rule in section 528(3A) of ICTA. This requires the deduction or set-off of any capital allowances under section 479 of CAA in calculating "income from patents" for the purposes of subsection (4) of this clause.

Clause 602: Payments received after deduction of tax

901.     This clause deals with the position of an individual receiving royalties or other income within this Chapter from which tax has been deducted. It is based on sections 348 and 349 of ICTA. Under section 348(1)(b) of ICTA "a sum representing the amount of income tax thereon" may be deducted from certain annual payments.

902.     The clause reproduces the effect of section 348(1)(d) of ICTA, under which the sum is treated as income tax paid by the person to whom the payment is made. The payer is entitled, but not obliged, to deduct this sum representing tax, which is treated as tax paid by the recipient. The tax treated as paid by the recipient of the annual payment is taken into account, along with any other tax paid by deduction at source and any tax credits, in calculating the tax payable for the tax year.

903.     In so far as this clause covers payments which are not annual payments within section 348(1) of ICTA, the scope of the provision has been made more explicit. Section 348(1)(d) of ICTA applies, in terms, only to annual payments from which any deduction is made under section 348(1)(b) of ICTA, but case law effectively extends it to payments under sections 348(2) and 349 of ICTA. See commentary on clause 426.

Clause 603: Contributions to expenditure

904.     This clause restricts expenditure allowable under clause 585, clause 588 and clause 600 to the extent that the expenditure is met by a public body or someone other than the claimant. It is based on section 532 of ICTA and section 532 of CAA.

905.     Section 532 of ICTA provides that sections 524, 526 and 531 of ICTA are to be treated as if those provisions had been contained in CAA.

906.     Subsection (3) excludes this clause from applying to incidental expenses incurred by the seller of patent rights (see clause 588(2)(b)). This is because section 524 of ICTA only bites in the first place on the net proceeds of a sale.

Clause 604: Contributions not made by public bodies nor eligible for tax relief

907.     This clause provides that contributions not made by public bodies may still be eligible as deductible expenditure in certain circumstances. The clause is based on section 532 of ICTA and section 536 of CAA. It qualifies the general rule in clause 603.

Clause 605: Exchanges

908.     This clause provides an extended definition of sale to include exchange. It is based on section 532 of ICTA and section 572 of CAA.

909.     Section 532 of ICTA provides that section 524 of ICTA (dealing with the sale of patent rights) and section 531 of ICTA (dealing with the disposal of know-how) are to be treated as if they had been contained in CAA.

Clause 606: Apportionment where property sold together

910.     This clause provides for the apportionment of sale proceeds and expenditure on a just and reasonable basis where property within the scope of this Chapter is sold or disclosed together with other property. It is based on section 532 of ICTA and section 562 of CAA.

911.     Section 532 of ICTA provides that section 524 of ICTA (dealing with the sale of patent rights) and section 531 of ICTA (dealing with the disposal of know-how) are to be treated as if they had been contained in CAA.