The Tax Avoidance Schemes (Prescribed Descriptions of Arrangements) Regulations 2006

• Citation: S.I. 2006/1543
• Sections: 23

Section 1 Citation, commencement and effect

(1) These Regulations may be cited as the Tax Avoidance Schemes (Prescribed Descriptions of Arrangements) Regulations 2006, and shall come into force on 1st August 2006.

(2) These Regulations do not have effect—

(a) for the purposes of section 308(1) of FA 2004 (duties of promoter relating to any notifiable proposal), if the relevant date falls before 1st August 2006;

(b) for the purposes of section 308(3) of FA 2004 (duties of promoter relating to any notifiable arrangements), if the date on which the promoter first becomes aware of any transaction forming part of notifiable arrangements falls before 1st August 2006;

(c) for the purposes of section 309(1) of FA 2004 (duty of person dealing with promoter outside United Kingdom), and of section 310 of that Act (duty of parties to notifiable arrangements not involving promoter) if the date on which any transaction forming part of notifiable arrangements is entered into falls before 1st August 2006.

(3) In paragraph (2)(a) “the relevant date” has the meaning given by section 308(2) of FA 2004.

Section 2 Interpretation : general

(1) This paragraph gives the meaning of the abbreviated references to Acts used in these Regulations—

“CAA 2001” means the Capital Allowances Act 2001 ;

“CTA 2009” means the Corporation Tax Act 2009;

“CTA 2010” means the Corporation Tax Act 2010;

“FA 2004” means the Finance Act 2004;

“ICTA” means the Income and Corporation Taxes Act 1988 ;

“ITA 2007” means the Income Tax Act 2007;

“ITEPA 2003” means the Income Tax (Earnings and Pensions) Act 2003 ;

“ITTOIA 2005” means the Income Tax (Trading and Other Income) Act 2005 ;

“TCGA 1992” means the Taxation of Chargeable Gains Act 1992 .

(2) In these Regulations—

“business” has the meaning given by regulation 3;

“generally accepted accounting practice” has the meaning given by section 1127 of CTA 2010;

“HMRC” means Her Majesty’s Revenue and Customs

“the Information Regulations” means the Tax Avoidance Schemes (Information) Regulations 2004 ;

“the material date” means whichever of the following is applicable—

for a proposal notifiable under section 308(1) of FA 2004, the relevant date (as defined in section 308(2) of FA 2004);

for arrangements notifiable under section 308(3) of FA 2004, the date the promoter first becomes aware of any transaction forming part of the notifiable arrangements; or

for arrangements notifiable under section 309 or 310 of FA 2004, the date the person enters into any transaction forming part of the notifiable arrangements;

...

“plant or machinery lease” has the meaning given by section 70K CAA 2001 ;

“the Promoters Regulations” means the Tax Avoidance Schemes (Promoters and Prescribed Circumstances) Regulations 2004 ;

“small or medium-sized enterprise” has the meaning given by regulation 4;.

(3) For the purposes of these Regulations section 839 of ICTA applies to determine whether persons are connected.

Section 3 Meaning of “business”

In these Regulations “business” means—

(a) a company;

(b) a partnership; or

(c) any person whose profits are charged to income tax, otherwise than by virtue of his being a partner—

(i) as trading income under Part 2 of ITTOIA 2005 (trading income), or

(ii) as property income under section 268 of ITTOIA 2005 (charge to tax on profits of a property business).

Section 4 Meaning of “small or medium-sized enterprise”

(1) For the purposes of these Regulations a “small or medium-sized enterprise” means a micro, small or medium-sized enterprise as defined in the Recommendation.

(2) In this regulation—

“the Recommendation” means the Commission Recommendation of 6th May 2003, and

“the Annex” means the Annex to the Recommendation.

(3) Paragraph (1) is subject to the following provisions.

(4) If a company (“C”) is a micro, small or medium-sized enterprise, disregarding any partner enterprise or linked enterprise, and, taken alone, it would satisfy the employee limit and at least one of the financial limits, but—

(a) the number of employees, annual turnover or annual balance sheet total (as the case may be) of a partner enterprise or linked enterprise to which it is related has been taken into account in determining whether the employee limits or the financial limits have been exceeded, and

(b) a partner enterprise or linked enterprise to which C is related would, disregarding the number of employees, and the annual turnover and annual balance sheet totals of C, exceed the employee limit, or either of the financial limits,

Article 4(2) of the Annex is to be disregarded in determining whether C is a small or medium-sized enterprise for an accounting period in which it exceeds the employee or financial limits.

In this paragraph references to the employee limit and the financial limits are to the limits respectively on the number of employees, and the annual turnover and balance sheet totals, contained in Article 2(1) of the Annex.

Section 5 Prescribed descriptions of arrangements

(1) The following arrangements are prescribed for the purposes of Part 7 of the FA 2004 (disclosure of tax avoidance schemes)—

(a) in relation to income tax, corporation tax and capital gains tax, any arrangements which fall within any description specified in a provision of these Regulations listed in paragraph (2);

(b) in relation to inheritance tax, any arrangements which fall within any description specified in a provision of these Regulations listed in paragraph (2)(a) or (c);

(c) in relation to the apprenticeship levy, any arrangements which fall within any description specified in a provision of these Regulations listed in paragraph (2)(a), (b), (c) or (e).

(2) The provisions are—

(a) regulation 6 (description 1: confidentiality in cases involving a promoter);

(b) regulation 7 (description 2: confidentiality in cases not involving a promoter);

(c) regulation 8 (description 3: premium fee);

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) regulation 10 (description 5: standardised tax products);

(f) regulation 12 (description 6: loss schemes); ...

(g) regulation 13 (description 7: leasing arrangements) ; ...

(h) regulation 18 (description 8: employment income provided through third parties) and

(i) regulation 19 (description 9: financial products).

(3) For the purpose only of determining whether arrangements are prescribed by regulations 6, 7, 8 and 13 of these Regulations, regulation 6 of the Promoters Regulations (persons not to be treated as promoters: legal professional privilege) shall be disregarded.

Section 6 Description 1: Confidentiality where promoter involved

(1) Arrangements are prescribed if—

(a) any element of the arrangements (including the way in which the arrangements are structured) gives rise to the tax advantage expected to be obtained under the arrangements; and

(b) it might reasonably be expected that a promoter would wish the way in which that element of those arrangements secures, or might secure, a tax advantage to be kept confidential from any other promoter at any time following the material date.

(2) Arrangements are prescribed if it might reasonably be expected that a promoter would , but for the requirements of these Regulations, wish to keep the way in which any element of those arrangements (including the way in which the arrangements are structured) that secures, or might secure, the tax advantage confidential from HMRC at any time following the material date, and a reason for doing so is to facilitate repeated or continued use of the same element, or substantially the same element, in the future.

(2A) Cases where arrangements will be prescribed under paragraph (2) include, but are not limited to, where—

(a) a promoter does not provide to the user of the arrangements (“the user”), or prevents or discourages the user from retaining, any promotional materials, data or written professional advice relating to those arrangements; and

(b) it might reasonably be expected that the reason for doing so is to keep the arrangements confidential from HMRC in order to facilitate repeated or continued use of any element of those arrangements.

(3) In a case where—

(a) by virtue of regulation 6 of the Promoters Regulations (persons not to be treated as promoters: legal professional privilege), no person is to be treated as the promoter in relation to the arrangements; or

(b) by virtue of section 309(1) of FA 2004 (duty of person dealing with promoter outside United Kingdom), a user of the arrangements has a duty to provide prescribed information,

for paragraph (2) substitute—

(2) Arrangements are prescribed if it might reasonably be expected that the user of the arrangements would, but for the requirements of these regulations, wish to keep the way in which any element of those arrangements (including the way in which the arrangements are structured) that secures the tax advantage confidential from HMRC at any time following the material date.

Section 7 Description 2: Confidentiality where no promoter involved

(1) Arrangements are prescribed if—

(a) no person is a promoter in relation to them;

(b) the intended user of the arrangements is a business which is not a small or medium-sized enterprise;

(c) any element of the arrangements (including the way in which the arrangements are structured) gives rise to the tax advantage expected to be obtained under the arrangements;

(d) it might reasonably be expected that a user would , but for the requirements of these Regulations, wish to keep the way in which that element secures the advantage confidential from HMRC at any time following the material date; and

(e) a reason for the user’s wishing to keep the element confidential from HMRC is—

(i) to facilitate repeated or continued use of the same element, or substantially the same element, in the future; or

(ii) to reduce the risk of HMRC using that information to open an enquiry into any return or account which a person is required by or under any enactment to deliver to HMRC; or

(iii) to reduce the risk of HMRC using that information to withhold payment of all or part of an amount claimed separately from a return under—

(aa) section 261B of the Taxation of Chargeable Gains Act 1992 (treating trade loss etc as CGT loss); or

(bb) Part 4 of the ITA 2007 (loss relief).

(2) Arrangements are also prescribed if—

(a) paragraphs (1)(a) to (c) are met; and

(b) if there had been a promoter in relation to the arrangements, it might reasonably have been expected that they would, but for the requirements of these Regulations, wish to have kept the way in which any element of the arrangements (including the way in which the arrangements were structured) that secured the tax advantage confidential from HMRC at any time following the material date, and a reason for doing so would be to facilitate repeated or continued use of the same element, or substantially the same element, in the future.

Section 8 Description 3: Premium Fee

(1) Arrangements are prescribed if they are such that it might reasonably be expected that a promoter or a person connected with a promoter of arrangements that are the same as, or substantially similar to, the arrangements in question, would, but for the requirements of these Regulations, be able to obtain a premium fee from a person experienced in receiving services of the type being provided.

But arrangements are not prescribed by this regulation if—

no person is a promoter in relation to them; and

the tax advantage which may be obtained under the arrangements is intended to be obtained by an individual or a business which is a small or medium-sized enterprise.

(2) For the purposes of paragraph (1), and in relation to any arrangements, a “premium fee” is a fee chargeable by virtue of any element of the arrangements (including the way in which they are structured) from which the tax advantage expected to be obtained arises, and which is—

(a) to a significant extent attributable to that tax advantage, or

(b) to any extent contingent upon the obtaining of that tax advantage as a matter of law .

Section 9 Description 4: Off market terms

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Section 10 Description 5: standardised tax products

(1) Subject to regulation 11, arrangements are prescribed if a promoter makes the arrangements available for implementation by more than one person and the conditions in paragraph (2) are met.

(2) The conditions are that an informed observer (having studied the arrangements and having regard to all relevant circumstances) could reasonably be expected to conclude that—

(a) the arrangements have standardised, or substantially standardised, documentation—

(i) the purpose of which is to enable a person to implement the arrangements;

(ii) the form of which is determined by the promoter; and

(iii) the substance of which does not need to be tailored, to any material extent, to enable a person to implement the arrangements;

(b) a person implementing the arrangements must enter into a specific transaction or series of specific transactions;

(c) the transaction or series of transactions is standardised, or substantially standardised, in form; and

(d) either the main purpose of the arrangements is to enable a person to obtain a tax advantage or the arrangements would be unlikely to be entered into but for the expectation of obtaining a tax advantage.

Section 11 Arrangements excepted from Description 5

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The following arrangements are excepted from being prescribed under regulation 10 —

(a) arrangements which consist solely of one or more plant or machinery leases ...;

(b) an enterprise investment scheme ( Part 5 of ITA 2007 and Schedule 5B to TCGA 1992);

(c) arrangements using a venture capital trust (see Part 6 of ITA 2007 and Schedule 5C to TCGA 1992);

(d) arrangements qualifying under the corporate venturing scheme (see Schedule 15 to the Finance Act 2000);

(e) arrangements qualifying for community investment tax relief (see Schedules 16 and 17 to the Finance Act 2002);

(f) an account which satisfies the conditions in the Individual Savings Account Regulations 1998 ;

(g) an approved share incentive plan (see Chapter 6 of Part 7 of, and Schedule 2 to, ITEPA 2003);

(h) an approved share option scheme (see Chapter 7 of Part 7 of, and Schedule 3 to, ITEPA 2003);

(i) an approved CSOP scheme (see Chapter 8 of Part 7 of, and Schedule 4 to, ITEPA 2003);

(j) the grant of one or more qualifying options which meet the requirements of Schedule 5 to ITEPA 2003 (enterprise management incentives)—

(i) together only with such other steps as are reasonably necessary in all the circumstances for the purposes of facilitating it, or

(ii) which fall to be notified to the Board in accordance with Part 7 of that Schedule;

(k) a registered pension scheme (see section 150(2) of FA 2004);

(l) an overseas pension scheme in respect of which tax relief is granted in the United Kingdom under section 615 of ICTA (exemption from tax for superannuation payments in respect of persons not resident in the United Kingdom or in respect of trades carried on wholly or partly outside the United Kingdom);

(m) a pension scheme which is a relevant non-UK pension scheme within the meaning given by paragraph 1(5) of Schedule 34 to FA 2004;

(n) a scheme to which section 731 of ITTOIA 2005 applies (periodical payments of personal injury damages);

(o) arrangements which would be prescribed by regulation 19 but for regulation 21.

Section 12 Description 6: Loss schemes

Arrangements are prescribed if—

(a) the promoter expects more than one individual to implement the same, or substantially the same, arrangements; and

(b) an informed observer (having studied the arrangements and having regard to all relevant circumstances) could reasonably be expected to conclude that—

(i) the main benefit or one of the main benefits which could be expected to accrue to some or all of the individuals participating in the arrangements is the provision of losses, and

(ii) the arrangements (including the way they are structured) contain an element which is, or elements which are, unlikely to have been entered into by the individuals concerned were it not for the provision of those losses, and

(iii) those individuals would be expected to use those losses to reduce their liability to income tax or capital gains tax.

Section 13 Description 7: Leasing arrangements

(1) Arrangements are prescribed if—

(a) the arrangements include a plant or machinery lease ...;

(b) one of the additional conditions is met (see regulation 15);

(c) the relevant value condition is met (see regulation 16); and

(d) the lease is not a short-term lease (see regulation 17).

(2) But arrangements are not prescribed by this regulation if—

(a) no person is a promoter in relation to them; and

(b) the tax advantage which may be obtained under the arrangements is intended to be obtained by an individual or a business which is a small or medium-sized enterprise.

Section 14 Meaning of “plant or machinery lease”

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Section 15 The additional conditions

(1) The first additional condition is that the arrangements are designed in such a way that one or more of the plant or machinery leases, comprised in the arrangements, are or would be entered into by—

(a) one party who has or would have a right or entitlement to claim capital allowances under Part 2 of CAA 2001 (plant and machinery allowances) in respect of the expenditure incurred on the plant or machinery, and

(b) another party who is not, or would not be, within the charge to corporation tax.

(2) A lease satisfies this condition if sub-paragraphs (a) and (b) of paragraph (1) are met, regardless of whether there are or would be (in addition to the parties mentioned in those sub-paragraphs) other parties to the lease who satisfy neither of those conditions.

(3) A party who acts merely as a guarantor under the lease is to be disregarded for the purposes of paragraph (1)(b).

(4) The second additional condition is that the arrangements include provision designed to—

(a) remove from the lessor the whole, or the greater part, of any risk, which would otherwise fall directly or indirectly upon the lessor, of sustaining a loss if payments due under the lease are not made in accordance with its terms, and

(b) do so by the provision of money or a money debt.

For the purposes of this paragraph “money” and “money debt” have the same meanings as they have in section 702(6) of ITEPA 2003.

(5) The third additional condition is that the arrangements are designed to consist of, or include—

(a) a sale and finance leaseback arrangement (within the meaning of section 221 of CAA 2001), or

(b) a lease and finance leaseback (within the meaning of section 228A(2) of CAA 2001).

The third additional condition is subject to the following paragraphs of this regulation.

(6) In a case falling within paragraph (5)(a) the third additional condition does not apply if the arrangements are designed in such a way that—

(a) the assets leased or to be leased under the sale and finance leaseback are or will be unused and not second-hand at the time when the assets are acquired or created; and

(b) the interval between the acquisition or creation of the asset and the sale of the asset under the sale and finance leaseback arrangement is not more than four months.

(7) The third additional condition does not apply if plant or machinery which is, or which the promoter expects to become, a fixture, is leased with relevant land, unless the plant or machinery is used for storage or production.

Here “used for storage or production” means used for the purposes of—

(a) storing, moving or displaying goods to be sold in the course of a trade;

(b) manufacturing goods or materials;

(c) subjecting goods or materials to a process;

(d) storing goods or materials—

(i) which are to be used in the manufacture of other goods or materials;

(ii) which are to be subjected to a process in the course of a trade;

(iii) which having been subjected in the course of a trade to process, manufactured or produced, have not yet been delivered to a purchaser; or

(iv) upon their arrival in the United Kingdom from a place outside it.

(8) But paragraph (7) does not apply (so that, accordingly, the third additional condition is met) if the arrangements are designed in such a way that—

(a) the qualifying expenditure incurred on the fixture referred to in paragraph (7) amounts or will amount to more than 50% of the aggregate value of the assets subject to the lease, and

(b) the rent payable under the lease is directly or indirectly dependent on the availability of capital allowances under Part 2 of CAA 2001 in respect of expenditure on any plant or machinery comprised in the lease.

(9) In determining the value of the assets comprised in the lease the following rules apply.

Rule 1

The value of the land subject to the lease is the market value of the lessor’s interest.

Rule 2

The value of the plant or machinery subject to the lease is to be determined in the same manner as for the purposes of regulation 16(1).

(10) In this regulation—

“fixture” has the meaning given by section 173(1) of CAA 2001;

“relevant land” has the meaning given by section 173(2) of CAA 2001.

Section 16 The relevant value condition

(1) The relevant value condition is met if—

(a) the lower of the cost to the lessor, or the market value, of any one asset forming part of the plant and machinery leased or to be leased under the arrangements is at least £10,000,000; or

(b) the aggregate of the lower of the costs to the lessor, or the market values, of all of the assets forming part of the plant and machinery leased or to be leased under the arrangements is at least £25,000,000.

(2) For the purposes of paragraph (1) the market value of plant or machinery leased or to be leased under the arrangements is to be determined on the assumption of a disposal—

(a) by an absolute owner;

(b) free from all encumbrances; and

(c) in the open market.

(3) “Absolute owner” in the application of paragraph (2)(a) to Scotland, means the owner.

Section 17 Short-term leases

(1) For the purposes of regulation 13(1)(d) a lease whose term is 2 years or less is a short-term lease.

But a lease is not a short-term lease if any of the following Conditions apply.

In those Conditions “L” is the lessee.

(2) Condition A is that the lease contains an option exercisable by L to extend the term so that the total term exceeds 2 years.

(3) Condition B is that at the time of the inception of the lease, other arrangements have been entered into which contemplate the extension of the lease to L which, if carried out, would extend the term of the lease so that it exceeds 2 years.

(4) Condition C is that—

(a) a person leases an asset to L under a lease that would, apart from this paragraph, be a short-term lease,

(b) the inception of that lease is on or after the date on which these Regulations come into force,

(c) at or about the time of the inception of that lease, arrangements are entered into for the asset to be leased to one or more other persons under one or more other leases, and

(d) in the aggregate, the term of the lease to L and the terms of the leases to such of those other persons as are connected with L exceed 2 years.

(5) In this regulation “inception” has the meaning given by section 70YI CAA 2001.

Section 17A Description 8: Pensions

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Section 18 Description 8: Employment income provided through third parties

(1) Arrangements are prescribed if—

(a) Conditions 1 and 2 are met and Condition 3 is not met; or

(b) Conditions 1, 2 and 3 are met and at least one of Conditions 4 and 5 is met.

(2) Condition 1 is met if the arrangements involve at least one of the following—

(a) a relevant third person taking a relevant step under section 554B;

(b) any person taking a relevant step under section 554C or 554D; or

(c) B taking a step under section 554Z18 or 554Z19.

(3) Condition 2 is met if the main benefit, or one of the main benefits, of the arrangements is that an amount that would otherwise count as employment income under section 554Z2(1) is reduced or eliminated.

(4) Condition 3 is met if, by reason of at least one of sections 554E to 554XA or regulations made under section 554Y, Chapter 2 of Part 7A does not apply.

(5) Condition 4 is met if the arrangements involve one or more contrived or abnormal steps without which the main benefit in paragraph (3) would not be obtained.

(6) Condition 5 is met if the arrangements involve—

(a) a relevant step being treated as taking place; and

(b) Chapter 2 of Part 7A applying as a consequence of sub-paragraph (a).

(7) In this regulation—

(a) references to sections or Parts are to those in ITEPA unless otherwise stated;

(b) “B” has the meaning given for Part 7A by sections 554A(1)(a) and 554Z17(7) read together;

(c) “contrived or abnormal” has the same meaning as in section 207 of the Finance Act 2013; and

(d) “relevant third person” has the same meaning as in section 554A(7).

Section 18 Revocations

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Section 19 Description 9: Financial products

(1) Subject to regulation 21, arrangements are prescribed if—

(a) condition 1 is met, and

(b) it would be reasonable to expect an informed observer (having studied the arrangements and having regard to all relevant circumstances) to conclude that—

(i) condition 2 is met, and

(ii) either condition 3 or condition 4 is met.

(2) Condition 1 is that the arrangements include at least one financial product specified in regulation 20(1) (a “specified financial product”).

(3) Condition 2 is that the main benefit, or one of the main benefits, of including a specified financial product in the arrangements is to give rise to a tax advantage.

(4) Condition 3 is that a specified financial product included in the arrangements contains at least one term which is unlikely to have been entered into by the persons concerned were it not for the tax advantage.

(5) Condition 4 is that the arrangements involve one or more contrived or abnormal steps without which the tax advantage could not be obtained.

(6) For the purposes of this regulation condition 3 is treated as not having been met if—

(a) the specified financial product includes a term requiring that it is held for a minimum period of time before it is redeemed and—

(i) section 135 or 136 of TCGA 1992 applies to the specified financial product, and

(ii) condition 3 is met only by virtue of that term; or

(b) the specified financial product includes a term whereby the issuing company can secure that the date for redemption falls before the end of the permitted period and—

(i) but for that term, the specified financial product would be an equity note, and

(ii) condition 3 is met only by virtue of that term.

(7) In paragraph (6)(b) “equity note” and “the permitted period” have the meanings given by section 1016 of CTA 2010.

(8) For the purposes of condition 4 a step is not to be treated as being contrived or abnormal if—

(a) that step involves only the transfer of an asset to which the condition in paragraph 15A(2)(b) of Schedule 7AC to TCGA 1992 applies; or

(b) that step involves only the issue of shares and—

(i) that step is taken to eliminate or substantially reduce the economic risk of holding a loan relationship or a derivative contract, or part of such a loan relationship or a derivative contract, which is attributable to fluctuations in exchange rates, and

(ii) the shares are treated for accounting purposes as a liability of the company in accordance with generally accepted accounting practice.

(9) For the purposes of this regulation, neither condition 3 nor condition 4 is treated as having been met if—

(a) the specified financial product includes a term providing for conversion into, or redemption in, a currency other than sterling, and

(b) both condition 3 and condition 4 are met only by virtue of that term.

Section 20

(1) The financial products specified in this paragraph are—

(a) a loan,

(b) a share,

(c) a derivative contract within the meaning given by section 576 of CTA 2009,

(d) a repo in respect of securities within the meaning given by section 263A(A1) of TCGA 1992,

(e) a creditor repo, creditor quasi-repo, debtor repo or a debtor quasi-repo (within the meanings given by sections 543, 544, 548 and 549 of CTA 2009 respectively),

(f) a stock lending arrangement within the meaning given by section 263B(1) of TCGA 1992,

(g) an alternative finance arrangement within Chapter 6 of Part 6 of CTA 2009 or Part 10A of ITA 2007,

(h) a contract which, whether alone or in combination with one or more other contracts—

(i) is in accordance with generally accepted accounting practice required to be treated as a loan, deposit or other financial asset or obligation, or

(ii) would be required to be so treated by the person entering into the arrangements were that person a company to which the Companies Act 2006 applies.

(2) Paragraph (1) does not specify a financial product held within an account which satisfies the conditions in regulation 4 of the Individual Savings Account Regulations 1998.

Section 21 Arrangements excepted from Description 9

Arrangements are excepted from being prescribed under regulation 19 if—

(a) a promoter is a participating entity, or is part of a participating group, within the meaning of section 286 of the Finance Act 2014; and

(b) HMRC has confirmed, or could reasonably be expected to confirm, to the promoter that the arrangements are acceptable transactions under the Code of Practice on Taxation for Banks (as published by the Commissioners for Her Majesty’s Revenue and Customs on 31st May 2013).