|
| |
|
Stamp duty and stamp duty reserve tax |
| |
50 | Power to extend exceptions relating to recognised exchanges |
| |
(1) | The Treasury may by regulations extend the application of the provisions |
| |
mentioned in subsection (2) to any market (specified by name or by |
| |
| 5 |
(a) | is not a recognised exchange, but |
| |
(b) | is a multilateral trading facility (or, assuming compliance with the |
| |
provisions of Title II of the Directive (authorisation and operating |
| |
conditions), would be such a facility). |
| |
(2) | The provisions referred to in subsection (1) are— |
| 10 |
(a) | sections 80A and 80C of FA 1986 (stamp duty: exceptions for sales to |
| |
intermediaries and for repurchases and stock lending), and |
| |
(b) | sections 88A and 89AA of that Act (stamp duty reserve tax: exceptions |
| |
for intermediaries and for repurchases and stock lending). |
| |
| 15 |
“the Directive” means Directive 2004/39/EC of the European Parliament |
| |
and of the Council of 21 April 2004 on markets in financial instruments; |
| |
“multilateral trading facility” has the same meaning as in the Directive |
| |
| |
“recognised exchange” means any of the following— |
| 20 |
| |
(b) | a recognised foreign exchange, |
| |
(c) | a recognised foreign options exchange, |
| |
within the meaning of the provisions mentioned in subsection (2). |
| |
(4) | Regulations under this section may provide for the application of the |
| 25 |
provisions mentioned in subsection (2) subject to any adaptations appearing to |
| |
the Treasury to be necessary or expedient. |
| |
(5) | In subsection (1)(b) the words “(or, assuming compliance with the provisions |
| |
of Title II of the Directive (authorisation and operating conditions), would be |
| |
such a facility)” shall cease to have effect on such day as the Treasury may by |
| 30 |
| |
(6) | Section 117 of FA 2002 (power to extend the exceptions in subsection (2) to any |
| |
market prescribed by order under section 118(3) of the Financial Services and |
| |
Markets Act 2000) shall cease to have effect on such day as the Treasury may |
| |
| 35 |
(7) | The power to make regulations or an order under this section is exercisable by |
| |
| |
(8) | A statutory instrument containing— |
| |
(a) | regulations under this section, or |
| |
(b) | an order under subsection (5), |
| 40 |
| shall be subject to annulment in pursuance of a resolution of the House of |
| |
| |
|
| |
|
| |
|
| |
| |
| |
(1) | After section 140D of TCGA 1992 (transfer of non-UK trade) insert— |
| |
“Formation of SE by merger |
| 5 |
140E | Merger leaving assets within UK tax charge |
| |
(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 |
| 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, |
| |
| |
(d) | section 139 does not apply to any qualifying transferred assets. |
| 15 |
(2) | Where this section applies, qualifying transferred assets shall be treated |
| |
for the purposes of corporation tax on chargeable gains as if acquired |
| |
by the SE for a consideration resulting in neither gain nor loss for the |
| |
| |
(3) | For the purposes of subsections (1) and (2) an asset is a qualifying |
| 20 |
| |
(a) | it is transferred to the SE as part of the process of the merger |
| |
| |
(b) | subsections (4) and (5) are satisfied in respect of it. |
| |
(4) | This subsection is satisfied in respect of a transferred asset if— |
| 25 |
(a) | the transferor is resident in the United Kingdom at the time of |
| |
| |
(b) | any gain that would have accrued to the transferor, had it |
| |
disposed of the asset immediately before the time of the |
| |
transfer, would have been a chargeable gain forming part of the |
| 30 |
transferor’s chargeable profits in accordance with section 10B. |
| |
(5) | This subsection is satisfied in respect of a transferred asset if— |
| |
(a) | the transferee SE is resident in the United Kingdom on |
| |
| |
(b) | any gain that would accrue to the transferee SE were it to |
| 35 |
dispose of the asset immediately after the transfer would be a |
| |
chargeable gain forming part of the SE’s chargeable profits in |
| |
accordance with section 10B. |
| |
(6) | For the purposes of this section a company is resident in a member State |
| |
| 40 |
(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. |
| |
(7) | This section does not apply to the formation of an SE by merger if— |
| |
(a) | it is not effected for bona fide commercial reasons, or |
| 5 |
(b) | it forms 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; |
| |
| and section 138 (clearance in advance) shall apply to this subsection as |
| |
it applies to section 137 (with any necessary modifications). |
| 10 |
140F | Merger not leaving assets within UK tax charge |
| |
(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 |
| 15 |
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) | in the course of the merger a company resident in the United |
| |
Kingdom (“company A”) transfers to a company resident in |
| 20 |
another member State (“company B”) all assets and liabilities |
| |
relating to a business which company A carried on in a member |
| |
State other than the United Kingdom through a permanent |
| |
| |
(e) | the aggregate of the chargeable gains accruing to company A on |
| 25 |
the transfer exceeds the aggregate of any allowable losses so |
| |
| |
(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 |
| 30 |
(b) | the transfer shall be treated as giving rise to a single chargeable |
| |
gain equal to the aggregate of those gains after deducting the |
| |
aggregate of those losses. |
| |
(3) | Where this section applies, section 815A of the Taxes Act shall also |
| |
| 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. |
| |
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 |
| 40 |
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, |
| 45 |
| |
|
| |
|
| |
|
(d) | the merger does not constitute or form part of a scheme of |
| |
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 |
| 5 |
136(6) (and section 137) shall not apply. |
| |
(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. |
| 10 |
52 | Intangible fixed assets |
| |
(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 (1) | This paragraph applies where— |
| 15 |
(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, |
| 20 |
(c) | the merging companies are not all resident in the same State, |
| |
| |
(d) | paragraph 84 above does not apply to any qualifying |
| |
| |
(2) | Where this paragraph applies a transfer of qualifying transferred |
| 25 |
assets is treated for the purposes of this Schedule as tax-neutral (see |
| |
| |
(3) | 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, |
| 30 |
(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. |
| |
(4) | Sub-paragraph (2) shall apply in relation to the formation of an SE by |
| 35 |
| |
(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. |
| 40 |
(5) | 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). |
| |
|
| |
|
| |
|
(6) | 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 |
| 5 |
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. |
| |
53 | Intangible fixed assets: permanent establishment in another member State |
| 10 |
(1) | After paragraph 87 of Schedule 29 to FA 2002 (intangible fixed assets: gains and |
| |
losses: transfer of non-UK trade) insert— |
| |
“Formation of SE by merger: transfer of non-UK trade |
| |
87A (1) | This paragraph applies where— |
| |
(a) | an SE is formed by the merger of two or more companies in |
| 15 |
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, |
| 20 |
(d) | in the course of the merger a company resident in the United |
| |
Kingdom (“the transferor”) transfers to a company resident |
| |
in another member State (“the transferee”) the whole or part |
| |
of a trade that, immediately before the transfer, the transferor |
| |
carried on in a member State other than the United Kingdom |
| 25 |
through a permanent establishment, |
| |
(e) | the transfer includes the whole of the assets of the transferor |
| |
used for the purposes of the trade or part, |
| |
(f) | the transfer includes intangible fixed assets— |
| |
(i) | that are chargeable intangible assets in relation to the |
| 30 |
transferor immediately before the transfer, and |
| |
(ii) | in the case of one or more of which the proceeds of |
| |
realisation exceed the cost recognised for tax |
| |
| |
(g) | no claim is made under paragraph 86 above in relation to |
| 35 |
| |
(2) | Where tax would, but for the Mergers Directive, have been |
| |
chargeable in the member State in which the permanent |
| |
establishment is located, Part 18 of the Taxes Act 1988 (double |
| |
taxation relief), including any arrangements having effect by virtue |
| 40 |
of section 788 (double taxation agreements), shall have effect as if the |
| |
amount of tax that would, but for the Mergers Directive, have been |
| |
charged in respect of the transfer of the chargeable intangible assets, |
| |
had actually been charged. |
| |
(3) | In this paragraph “the Mergers Directive” has the same meaning as |
| 45 |
| |
|
| |
|
| |
|
(4) | 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 |
| 5 |
relief arrangements to which the State is a party, as resident |
| |
in a territory not within a member State. |
| |
(5) | This paragraph does not apply to the formation of an SE by merger |
| |
| |
(a) | it is not effected for bona fide commercial reasons, or |
| 10 |
(b) | it forms 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. |
| |
(6) | Sub-paragraph (5) shall not affect the operation of this paragraph in |
| |
any case where, before the transfer, Her Majesty’s Revenue and |
| 15 |
Customs have, on the application of the transferor, notified the |
| |
transferor that they are satisfied that the merger will be effected for |
| |
bona fide commercial reasons and will not form part of any such |
| |
scheme or arrangements as are mentioned in sub-paragraph (5)(b). |
| |
(7) | An application under sub-paragraph (6) must be made in accordance |
| 20 |
| |
(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 |
| 25 |
losses: continuity of treatment for groups) insert— |
| |
“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 |
| 30 |
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, |
| |
| 35 |
| |
(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 |
| |
| 40 |
(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 |
| |
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 |
| 5 |
and identifying the company which is to bring them into |
| |
| |
(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 |
| |
| 10 |
(3) | Where this paragraph applies, the transferor and the transferee |
| |
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 |
| 15 |
modifications) in relation to this paragraph as in relation to |
| |
| |
(5) | Sub-paragraphs (2) and (3) shall apply in relation to the formation of |
| |
| |
(a) | it is effected for bona fide commercial reasons, and |
| 20 |
(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. |
| |
(6) | But sub-paragraph (5) shall not have the effect of preventing sub- |
| |
paragraphs (2) and (3) from applying if before the merger Her |
| 25 |
Majesty’s Revenue and Customs have on the application of the |
| |
merging companies notified them that Her Majesty’s Revenue and |
| |
Customs are satisfied that sub-paragraph (5) will not have that effect. |
| |
(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 30A of Schedule 26 to FA 2002 (derivative contracts: profits: |
| |
| 40 |
“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 |
| 45 |
Company (Societas Europaea), |
| |
|
| |
|