|
| |
|
(c) | the merging companies are not all resident in the same State, |
| |
(d) | in the course of the merger a company resident in the United |
| |
Kingdom (“company A”) transfers to a company resident in |
| |
another member State (“company B”) all assets and liabilities |
| |
relating to a business which company A carried on in a member |
| 5 |
State other than the United Kingdom through a permanent |
| |
| |
(e) | the aggregate of the chargeable gains accruing to company A on |
| |
the transfer exceeds the aggregate of any allowable losses so |
| |
| 10 |
(2) | Where this section applies, for the purposes of this Act— |
| |
(a) | the allowable losses accruing to company A on the transfer shall |
| |
be set off against the chargeable gains so accruing, and |
| |
(b) | the transfer shall be treated as giving rise to a single chargeable |
| |
gain equal to the aggregate of those gains after deducting the |
| 15 |
aggregate of those losses. |
| |
(3) | Where this section applies, section 815A of the Taxes Act shall also |
| |
| |
(4) | Subsections (6) and (7) of section 140E apply for the purposes of this |
| |
section as they apply for the purposes of that section. |
| 20 |
140G | Treatment of securities issued on merger |
| |
(1) | This section applies where— |
| |
(a) | an SE is formed by the merger of two or more companies in |
| |
accordance with Articles 2(1) and 17(2)(a) or (b) of Council |
| |
Regulation (EC) 2157/2001 on the Statute for a European |
| 25 |
Company (Societas Europaea), |
| |
(b) | each merging company is resident in a member State, |
| |
(c) | the merging companies are not all resident in the same State, |
| |
| |
(d) | the merger does not constitute or form part of a scheme of |
| 30 |
reconstruction within the meaning of section 136. |
| |
(2) | Where this section applies, the merger shall be treated for the purposes |
| |
of section 136 as if it were a scheme of reconstruction. |
| |
(3) | Where section 136 applies by virtue of subsection (2) above section |
| |
136(6) (and section 137) shall not apply. |
| 35 |
(4) | Subsections (6) and (7) of section 140E apply for the purposes of this |
| |
section as they apply for the purposes of that section.” |
| |
(2) | Subsection (1) shall have effect in relation to the formation of an SE which |
| |
occurs on or after 1st April 2005. |
| |
153 | Intangible fixed assets |
| 40 |
(1) | After paragraph 85 of Schedule 29 to FA 2002 (intangible fixed assets: gains and |
| |
losses: transfer of trade) insert— |
| |
“Formation of SE by merger |
| |
85A (2) | This paragraph applies where— |
| |
|
| |
|
| |
|
(a) | an SE is formed by the merger of two or more companies in |
| |
accordance with Articles 2(1) and 17(2)(a) or (b) of Council |
| |
Regulation (EC) 2157/2001 on the Statute for a European |
| |
Company (Societas Europaea), |
| |
(b) | each merging company is resident in a member State, |
| 5 |
(c) | the merging companies are not all resident in the same State, |
| |
| |
(d) | paragraph 84 above does not apply to any qualifying |
| |
| |
(3) | Where this paragraph applies a transfer of qualifying transferred |
| 10 |
assets is treated for the purposes of this Schedule as tax-neutral (see |
| |
| |
(4) | For the purposes of sub-paragraphs (1) and (2) an asset is a |
| |
qualifying transferred asset if— |
| |
(a) | it is transferred as part of the process of the merger, |
| 15 |
(b) | it is a chargeable intangible asset in relation to the transferor |
| |
immediately before the transfer, and |
| |
(c) | it is a chargeable intangible asset in relation to the transferee |
| |
immediately after the transfer. |
| |
(5) | Sub-paragraph (2) shall apply in relation to the formation of an SE by |
| 20 |
| |
(a) | it is effected for bona fide commercial reasons, and |
| |
(b) | it does not form part of a scheme or arrangements of which |
| |
the main purpose, or one of the main purposes, is avoiding |
| |
liability to corporation tax, capital gains tax or income tax. |
| 25 |
(6) | Paragraph 84(6) (and therefore paragraph 88) shall apply, with any |
| |
necessary modifications, in relation to sub-paragraph (4) above as in |
| |
relation to paragraph 84(5). |
| |
(7) | For the purposes of this paragraph a company is resident in a |
| |
| 30 |
(a) | it is within a charge to tax under the law of the State as being |
| |
resident for that purpose, and |
| |
(b) | it is not regarded for the purposes of any double taxation |
| |
relief arrangements to which the State is a party, as resident |
| |
in a territory not within a member State.” |
| 35 |
(2) | Subsection (1) shall have effect in relation to the formation of an SE which |
| |
occurs on or after 1st April 2005. |
| |
| |
(1) | After paragraph 12A of Schedule 9 to FA 1996 (loan relationships: gains and |
| |
losses: continuity of treatment for groups) insert— |
| 40 |
“Formation of SE by merger |
| |
12B (1) | This paragraph applies where— |
| |
(a) | an SE is formed by the merger of two or more companies in |
| |
accordance with Articles 2(1) and 17(2)(a) or (b) of Council |
| |
|
| |
|
| |
|
Regulation (EC) 2157/2001 on the Statute for a European |
| |
Company (Societas Europaea), |
| |
(b) | each merging company is resident in a member State, |
| |
(c) | the merging companies are not all resident in the same State, |
| |
| 5 |
| |
(i) | immediately after formation the SE is resident in the |
| |
United Kingdom and within the charge to |
| |
corporation tax in accordance with section 6 of the |
| |
| 10 |
(ii) | immediately after formation the SE is not resident in |
| |
the United Kingdom but is within the charge to |
| |
corporation tax in accordance with section 11 of the |
| |
| |
(2) | Where this paragraph applies, the transfer in the course of the |
| 15 |
merger of an asset or liability which represents a loan relationship |
| |
shall be disregarded except— |
| |
(a) | for the purpose of determining the debits or credits to be |
| |
brought into account in respect of exchange gains or losses |
| |
and identifying the company which is to bring them into |
| 20 |
| |
(b) | for the purpose of identifying the company in whose case a |
| |
debit or credit which does not relate to the transfer is to be |
| |
| |
(3) | Where this paragraph applies, the transferor and the transferee |
| 25 |
companies of an asset or liability which represents a loan |
| |
relationship shall be deemed, except for the purposes specified in |
| |
sub-paragraph (2)(a) and (b), to be the same company. |
| |
(4) | Paragraph 12(2A) shall have effect (with any necessary |
| |
modifications) in relation to this paragraph as in relation to |
| 30 |
| |
(5) | Sub-paragraphs (2) and (3) shall apply in relation to the formation of |
| |
| |
(a) | it is effected for bona fide commercial reasons, and |
| |
(b) | it does not form part of a scheme or arrangements of which |
| 35 |
the main purpose, or one of the main purposes, is avoiding |
| |
liability to corporation tax, capital gains tax or income tax. |
| |
(6) | But sub-paragraph (5) shall not have the effect of preventing sub- |
| |
paragraphs (2) and (3) from applying if before the merger the Inland |
| |
Revenue have on the application of the merging companies notified |
| 40 |
them that the Inland Revenue are satisfied that sub-paragraph (5) |
| |
will not have that effect. |
| |
(7) | For the purposes of this paragraph a company is resident in a |
| |
| |
(a) | it is within a charge to tax under the law of the State as being |
| 45 |
resident for that purpose, and |
| |
(b) | it is not regarded for the purposes of any double taxation |
| |
relief arrangements to which the State is a party, as resident |
| |
in a territory not within a member State.” |
| |
|
| |
|
| |
|
(2) | Subsection (1) shall have effect in relation to the formation of an SE which |
| |
occurs on or after 1st April 2005. |
| |
| |
(1) | After paragraph 30A of Schedule 26 to FA 2002 (derivative contracts: profits: |
| |
| 5 |
“Formation of SE by merger |
| |
30B (1) | This paragraph applies where— |
| |
(a) | an SE is formed by the merger of two or more companies in |
| |
accordance with Articles 2(1) and 17(2)(a) or (b) of Council |
| |
Regulation (EC) 2157/2001 on the Statute for a European |
| 10 |
Company (Societas Europaea), |
| |
(b) | each merging company is resident in a member State, |
| |
(c) | the merging companies are not all resident in the same State, |
| |
| |
| 15 |
(i) | immediately after formation the SE is resident in the |
| |
United Kingdom and within the charge to |
| |
corporation tax in accordance with section 6 of the |
| |
| |
(ii) | immediately after formation the SE is not resident in |
| 20 |
the United Kingdom but is within the charge to |
| |
corporation tax in accordance with section 11 of the |
| |
| |
(2) | Where this paragraph applies, the transfer in the course of the |
| |
merger of rights or liabilities under a derivative contract shall be |
| 25 |
| |
(a) | for the purpose of determining the debits or credits to be |
| |
brought into account in respect of exchange gains or losses |
| |
and identifying the company which is to bring them into |
| |
| 30 |
(b) | for the purpose of identifying the company in whose case a |
| |
debit or credit which does not relate to the transfer is to be |
| |
| |
(3) | Where this paragraph applies, the transferor and the transferee |
| |
companies of a right or liability under a derivative contract shall be |
| 35 |
deemed, except for the purposes specified in sub-paragraph (3)(a) |
| |
and (b), to be the same company. |
| |
(4) | Paragraph 30 shall apply, with any necessary modifications, in |
| |
relation to this paragraph as in relation to paragraph 28. |
| |
(5) | Sub-paragraphs (2) and (3) shall apply in relation to a merger only |
| 40 |
| |
(a) | it is effected for bona fide commercial reasons, and |
| |
(b) | it does not form part of a scheme or arrangements of which |
| |
the main purpose, or one of the main purposes, is avoiding |
| |
liability to corporation tax, capital gains tax or income tax. |
| 45 |
|
| |
|
| |
|
(6) | But sub-paragraph (5) shall not have the effect of preventing sub- |
| |
paragraphs (2) and (3) from applying if before the merger the Inland |
| |
Revenue have on the application of the merging companies notified |
| |
them that the Inland Revenue are satisfied that sub-paragraph (5) |
| |
will not have that effect. |
| 5 |
(7) | For the purposes of this paragraph a company is resident in a |
| |
| |
(a) | it is within a charge to tax under the law of the State as being |
| |
resident for that purpose, and |
| |
(b) | it is not regarded for the purposes of any double taxation |
| 10 |
relief arrangements to which the State is a party, as resident |
| |
in a territory not within a member State.” |
| |
(2) | Subsection (1) shall have effect in relation to the formation of an SE which |
| |
occurs on or after 1st April 2005. |
| |
| 15 |
(1) | After section 561 of CAA 2001 (transfer of UK trade to company in another |
| |
| |
“561A | Transfer during formation of SE by merger |
| |
(1) | This section applies to the transfer of a qualifying asset as part of the |
| |
process of a merger to which section 140E of TCGA 1992 (formation of |
| 20 |
| |
(2) | Where this section applies to a transfer— |
| |
(a) | the transfer does not give rise to any allowance or charge under |
| |
| |
(b) | anything done to or by the transferor in relation to assets |
| 25 |
transferred is to be treated after the transfer as having been |
| |
done to or by the transferee (with any necessary apportionment |
| |
of expenditure being made in a reasonable manner), and |
| |
(c) | section 343 of ICTA 1988 (company reconstruction without |
| |
change of ownership) shall not apply. |
| 30 |
(3) | In subsection (1) “qualifying asset” has the same meaning as |
| |
“qualifying transferred asset” in section 140E of TCGA 1992.” |
| |
(2) | Subsection (1) shall have effect in relation to a transfer made on or after 1st |
| |
| |
157 | Stamp duty reserve tax |
| 35 |
(1) | At the end of section 99(4) of FA 1986 (stamp duty reserve tax: interpretation: |
| |
chargeable securities) add— |
| |
| |
(d) | they are issued or raised by an SE (whether or not in the course |
| |
of its formation in accordance with Article 2 of Council |
| 40 |
Regulation (EC) 2157/2001 on the Statute for a European |
| |
Company (Societas Europaea)) and, at the time when it falls to |
| |
be determined whether the securities are chargeable securities, |
| |
the SE has its registered office in the United Kingdom. |
| |
|
| |
|
| |
|
(4A) | “Chargeable securities” does not include securities falling within |
| |
paragraph (a), (b) or (c) of subsection (3) above if— |
| |
(a) | they are securities issued or raised by an SE (whether or not in |
| |
the course of its formation in accordance with Article 2 of |
| |
Council Regulation (EC) 2157/2001 on the Statute for a |
| 5 |
European Company (Societas Europaea)), and |
| |
(b) | at the time when it falls to be determined whether the securities |
| |
are chargeable securities, the SE has its registered office outside |
| |
| |
(2) | Subsection (1) shall have effect for the purposes of determining, in relation to |
| 10 |
anything occurring on or after 1st April 2005, whether securities (whenever |
| |
issued or raised) are chargeable securities for the purposes of Part IV of FA |
| |
| |
158 | Bearer instruments: stamp duty and stamp duty reserve tax |
| |
(1) | In section 90(3C)(a) of FA 1986 (stamp duty reserve tax: bearer instruments) |
| 15 |
after “United Kingdom” insert “(other than an SE which has transferred its |
| |
registered office out of the United Kingdom in accordance with Article 8 of |
| |
Council Regulation (EC) 2157/2001 on the Statute for a European Company |
| |
| |
(2) | In section 90(3E)(a) of FA 1986 (stamp duty reserve tax: bearer instruments) |
| 20 |
after “United Kingdom” insert “(other than an SE which has transferred its |
| |
registered office out of the United Kingdom in accordance with Article 8 of |
| |
Council Regulation (EC) 2157/2001 on the Statute for a European Company |
| |
| |
(3) | In paragraph 11 of Schedule 15 to FA 1999 (bearer instruments) for the |
| 25 |
definition of “UK company” substitute— |
| |
| |
(a) | a company that is formed or established in the United |
| |
Kingdom (other than an SE which has transferred its |
| |
registered office out of the United Kingdom in |
| 30 |
accordance with Article 8 of Council Regulation (EC) |
| |
2157/2001 on the Statute for a European Company |
| |
| |
(b) | an SE which has its registered office in the United |
| |
Kingdom following a transfer in accordance with Article |
| 35 |
| |
(4) | This section shall have effect for the purposes of determining whether or not |
| |
stamp duty or stamp duty reserve tax is chargeable in respect of anything done |
| |
on or after 1st April 2005. |
| |
159 | Consequential amendments |
| 40 |
(1) | In section 815A(1) of ICTA (transfer of a non-UK trade) after “section 140C” |
| |
| |
(2) | In section 35(3)(d)(i) of TCGA 1992 (re-basing to 1982, &c.) after “140A,” insert |
| |
| |
(3) | In section 140A of TCGA 1992 (transfer of UK trade)— |
| 45 |
|
| |
|
| |
|
(a) | in subsection (1)(b) for “securities” substitute “shares or debentures”, |
| |
| |
(b) | in subsection (7) omit the definition of “securities”. |
| |
(4) | In section 140C of TCGA 1992 (transfer of non-UK trade)— |
| |
(a) | in subsection (1)(c) for “securities” substitute “shares or debentures”, |
| 5 |
| |
(b) | in subsection (9) omit the definition of “securities”. |
| |
(5) | In paragraph 88(1) and (5) of Schedule 29 to FA 2002 (intangible fixed assets: |
| |
gains and losses: transferred assets: application for clearance) after “85(5),” |
| |
| 10 |
(6) | In paragraph 127 of that Schedule (acquired assets to be treated as existing |
| |
assets) after sub-paragraph (1)(b)(ii) insert— |
| |
| |
| (iii) section 140E of that Act (transfer on formation of |
| |
| 15 |
(7) | Subsections (3) and (4) shall have effect in relation to an issue effected on or |
| |
| |
| |
(1) | After section 66 of FA 1988 (company residence) insert— |
| |
| 20 |
(1) | This section applies to an SE which transfers its registered office to the |
| |
United Kingdom (in accordance with Article 8 of Council Regulation |
| |
(EC) 2157/2001 on the Statute for a European Company (Societas |
| |
| |
(2) | Upon registration in the United Kingdom the SE shall be regarded for |
| 25 |
the purposes of the Taxes Acts as resident in the United Kingdom; and |
| |
accordingly, if a different place of residence is given by any rule of law, |
| |
that place shall not be taken into account for those purposes. |
| |
(3) | The SE shall not cease to be regarded as resident in the United Kingdom |
| |
by reason only of the subsequent transfer from the United Kingdom of |
| 30 |
| |
(4) | In this section “the Taxes Acts” has the same meaning as in the Taxes |
| |
| |
(2) | In section 249(3) of FA 1994 (certain companies to be treated as non-resident) |
| |
after “resident there)” insert “, by virtue of section 66A of that Act (residence of |
| 35 |
| |
(3) | Subsection (1) shall have effect in relation to the transfer of a registered office |
| |
which occurs on or after 1st April 2005. |
| |
161 | Continuity for transitional purposes |
| |
(1) | If at any time a company ceases to be resident in the United Kingdom in the |
| 40 |
course of the formation of an SE by merger (whether or not the company |
| |
continues to exist after the formation of the SE) the provision specified in |
| |
|
| |
|