F1PART 9AControlled foreign companies
C1Chapter 5The CFC charge gateway: non-trading finance profits
Pt. 9A Ch. 5 applied (with modifications) by 2009 c. 4, s. 18HC (as substituted (with effect in accordance with Sch. 20 para. 55(2) of the amending Act) by Finance Act 2012 (c. 14), Sch. 20 para. 6)
371EAThe basic rule
1
The CFC's profits falling within this Chapter for the purposes of step 2 in section 371BB(1) (the CFC charge gateway) are its non-trading finance profits so far as they fall within any of sections 371EB to 371EE.
2
In this Chapter references to the CFC's non-trading finance profits are to be read in accordance with section 371CB(2) and, so far as applicable, section 371CB(8).
371EBUK activities
1
To determine the extent to which the CFC's non-trading finance profits fall within this section, take steps 1 to 5 and 7 in section 371DB(1) as if references in section 371DB to the CFC's assumed total profits were references to its non-trading finance profits.
2
Non-trading finance profits fall within this section so far as they would be included in the provisional Chapter 4 profits as determined on the basis mentioned in subsection (1).
371ECCapital investment from the UK
1
Non-trading finance profits fall within this section so far as they arise from relevant UK funds or other assets.
2
Subsection (3) applies in relation to any profits which (apart from subsection (3)) would fall within this section if—
a
an amount of expenditure incurred by the CFC in managing the relevant UK funds or other assets itself was brought into account in calculating the profits, and
b
it is reasonable to suppose that the amount of expenditure is less than the fee which a company not connected with the CFC would charge the CFC for carrying out the same management activities.
3
There is to be deducted from the profits an amount representing what it is reasonable to suppose the difference between the amount of expenditure and the fee would be.
4
“Relevant UK funds or other assets” means—
a
funds or other assets which represent, or derive (directly or indirectly) from, any capital contribution to the CFC made (directly or indirectly) by a UK connected company (whether in relation to an issue of shares in the CFC or otherwise),
b
funds or other assets which represent, or derive (directly or indirectly) from, any amounts included in the CFC's chargeable profits for any earlier accounting period in relation to which the CFC charge is charged,
c
funds or other assets which represent, or derive (directly or indirectly) from, any amounts which, by virtue of section 174 (transfer pricing: claims by disadvantaged person), are left out of account in determining the CFC's assumed total profits for the accounting period or any earlier accounting period, or
d
funds or other assets—
i
which represent, or derive (directly or indirectly) from, any funds or other assets received by the CFC (directly or indirectly) from a UK connected company, and
ii
which are not covered by paragraphs (a) to (c).
5
In subsection (4)(d)(i) the reference to funds or other assets received by the CFC does not include funds or other assets received—
a
in exchange for goods or services provided by the CFC, or
b
by way of a loan.
6
“UK connected company” means—
a
a UK resident company connected with the CFC, or
b
a non-UK resident company connected with the CFC acting through a UK permanent establishment.
371EDArrangements in lieu of dividends etc to UK resident companies etc
1
Non-trading finance profits fall within this section so far as they arise from an arrangement F2... in relation to which the following condition is met.
2
The condition is that—
a
the arrangement is made by the CFC (directly or indirectly)—
i
with a UK resident company connected with the CFC, or
ii
with a non-UK resident company connected with the CFC for the purposes of a UK permanent establishment of the non-UK resident company, and
b
it is reasonable to suppose—
i
that the arrangement is made as an alternative to the CFC paying dividends or making any other distribution to the other company (directly or indirectly), and
ii
that the main reason, or one of the main reasons, for that is a reason relating to a liability, or potential liability, of any person to tax or duty imposed under the law of any territory.
371EELeases to UK resident companies etc
1
Non-trading finance profits fall within this section so far as they arise from a relevant finance lease in relation to which the following condition is met.
2
The condition is that—
a
the lease is made by the CFC (directly or indirectly)—
i
with a UK resident company connected with the CFC, or
ii
with a non-UK resident company connected with the CFC for the purposes of a UK permanent establishment of the non-UK resident company, and
b
it is reasonable to suppose—
i
that the lease is made as an alternative to the other company purchasing (directly or indirectly) the asset F4(“the relevant asset”) which is the subject of the lease or making (directly or indirectly) an arrangement which would fall within subsection (3) , and
ii
that the main reason, or one of the main reasons, for that is a reason relating to a liability, or potential liability, of any person to tax or duty imposed under the law of any territory.
F33
An arrangement would fall within this subsection if—
a
the arrangement would meet one or both of the following requirements—
i
it would not be a relevant finance lease;
ii
it would not involve the CFC, and
b
under the arrangement the other company would (directly or indirectly) purchase rights to use the relevant asset.
Pt. 9A inserted (17.7.2012) by Finance Act 2012 (c. 14), Sch. 20 para. 1 (with ss. 56-58)