|
| |
|
(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 |
| |
reconstruction within the meaning of section 136. |
| 5 |
(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. |
| |
(4) | Subsections (6) and (7) of section 140E apply for the purposes of this |
| 10 |
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. |
| |
52 | Intangible fixed assets |
| |
(1) | After paragraph 85 of Schedule 29 to FA 2002 (intangible fixed assets: gains and |
| 15 |
losses: transfer of trade) insert— |
| |
“Formation of SE by merger |
| |
85A (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 |
| 20 |
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, |
| |
| 25 |
(d) | paragraph 84 above does not apply to any qualifying |
| |
| |
(2) | Where this paragraph applies a transfer of qualifying transferred |
| |
assets is treated for the purposes of this Schedule as tax-neutral (see |
| |
| 30 |
(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, |
| |
(b) | it is a chargeable intangible asset in relation to the transferor |
| |
immediately before the transfer, and |
| 35 |
(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 |
| |
| |
(a) | it is effected for bona fide commercial reasons, and |
| 40 |
(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. |
| |
|
| |
|
| |
|
(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 |
| |
| 5 |
(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.” |
| 10 |
(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 |
| |
(1) | After paragraph 87 of Schedule 29 to FA 2002 (intangible fixed assets: gains and |
| |
losses: transfer of non-UK trade) insert— |
| 15 |
“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 |
| |
accordance with Articles 2(1) and 17(2)(a) or (b) of Council |
| |
Regulation (EC) 2157/2001 on the Statute for a European |
| 20 |
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 (“the transferor”) transfers to a company resident |
| 25 |
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 |
| |
through a permanent establishment, |
| |
(e) | the transfer includes the whole of the assets of the transferor |
| 30 |
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 |
| |
transferor immediately before the transfer, and |
| |
(ii) | in the case of one or more of which the proceeds of |
| 35 |
realisation exceed the cost recognised for tax |
| |
| |
(g) | no claim is made under paragraph 86 above in relation to |
| |
| |
(2) | Where tax would, but for the Mergers Directive, have been |
| 40 |
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 |
| |
of section 788 (double taxation agreements), shall have effect as if the |
| |
amount of tax that would, but for the Mergers Directive, have been |
| 45 |
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 |
| |
| |
(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 |
| 5 |
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. |
| |
(5) | This paragraph does not apply to the formation of an SE by merger |
| 10 |
| |
(a) | it is not effected for bona fide commercial reasons, or |
| |
(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. |
| 15 |
(6) | Sub-paragraph (5) shall not affect the operation of this paragraph in |
| |
any case where, before the transfer, Her Majesty’s Revenue and |
| |
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 |
| 20 |
scheme or arrangements as are mentioned in sub-paragraph (5)(b). |
| |
(7) | An application under sub-paragraph (6) must be made in accordance |
| |
| |
(2) | Subsection (1) shall have effect in relation to the formation of an SE which |
| |
occurs on or after 1st April 2005. |
| 25 |
| |
(1) | After paragraph 12A of Schedule 9 to FA 1996 (loan relationships: gains and |
| |
losses: continuity of treatment for groups) insert— |
| |
“Formation of SE by merger |
| |
12B (1) | This paragraph applies where— |
| 30 |
(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, |
| 35 |
(c) | the merging companies are not all resident in the same State, |
| |
| |
| |
(i) | immediately after formation the SE is resident in the |
| |
United Kingdom and within the charge to |
| 40 |
corporation tax in accordance with section 6 of the |
| |
| |
(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 |
| 45 |
| |
|
| |
|
| |
|
(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), |
| |
|
| |
|
| |
|
(b) | each merging company is resident in a member State, |
| |
(c) | the merging companies are not all resident in the same State, |
| |
| |
| |
(i) | immediately after formation the SE is resident in the |
| 5 |
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 |
| |
the United Kingdom but is within the charge to |
| 10 |
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 |
| |
| 15 |
(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 |
| |
| |
(b) | for the purpose of identifying the company in whose case a |
| 20 |
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 |
| |
deemed, except for the purposes specified in sub-paragraph (2)(a) |
| 25 |
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 |
| |
| 30 |
(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. |
| |
(6) | But sub-paragraph (5) shall not have the effect of preventing sub- |
| 35 |
paragraphs (2) and (3) from applying if before the merger Her |
| |
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 |
| 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 |
| 45 |
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. |
| |
|
| |
|