Inland Revenue 34
March 17 1998
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CAPITAL GAIN BUYING: AVOIDANCE BY GROUPS OF COMPANIES
As part of the Chancellor's determination to stamp out
avoidance, measures were introduced today to counter the use
of artificial "gain buying" schemes by groups of companies.
These schemes aim to avoid tax on capital gains by contriving
to bring a company with gains into a group that has capital
losses. The new rules will make capital gains taxation
fairer by restricting the losses that a company can set
against its gains in the accounting period in which it joins
a group. Accompanying proposals will address other avoidance
risks for companies with capital gains.
The new rules will apply to companies joining a group on or
after Budget day. They are expected to yield 100 million
pounds a year and to prevent a much greater loss of tax in
the future.
DETAILS
1. A group of companies for capital gains purposes
comprises, broadly speaking, a parent company and all its 75
per cent subsidiaries, together with any 75 per cent
subsidiaries of those subsidiaries and so on.
2. When assets are transferred between companies in the same
capital gains group, any gain or loss is usually deferred
until the assets are sold outside the group. Groups of
companies often make use of this facility to bring their
assets together in one group company before they are sold.
This allows the group's gains to be reduced by its losses so
that tax is only paid on the net amount. These rules
effectively enable a group to be treated for these purposes
as a single economic entity.
Gain buying
3. The use of "gain buying" avoidance schemes has grown over
recent years. Under these schemes, a group arranges for the
company with the realised gain to be acquired by an unrelated
group of companies that has unrealised losses. The assets on
which the losses will arise are then transferred to the
company with the gain before the losses are realised.
Provided everything happens within the same accounting period,
the losses can be set off against the gain, so reducing the
tax payable.
4. Gain buying brings together gains and losses that have
arisen while the assets in question were in unrelated
economic ownership. The transactions are carried out in
order to achieve a tax advantage. Typically, the old and the
new owners of the company with the gain will arrange to share
between them the benefit of the tax saving.
5. The new rules will identify any capital gains that have
been realised before a company joins a group of companies,
and will restrict the capital losses that can be set off
against them. The only losses which will be allowed against
these earlier gains are:
- losses that arise before the company joins the new
group; and
- losses that arise after that time on assets that it
held when it entered the group.
Where two or more companies leave one group and join another
group together, this approach will apply to assets that were
held by any of those companies at that time. This will
reflect commercial reality by effectively treating the
companies concerned as if they were a single company.
6. Special rules will apply to companies carrying on life
assurance business, in relation to the deemed disposal of
certain holdings in unit trusts and offshore funds at the end
of each accounting period.
Other avoidance risks
7. The Chancellor's proposals address two other schemes for
avoiding tax on capital gains in groups of companies. The
first of these concerns the transfer of assets within a group
to a company that is, or will become, exempt from tax on its
capital gains. If no action were taken to block this device,
a significant leakage of tax could result. The types of
company concerned are investment trusts and Venture Capital
Trusts (VCTs).
8. The rules will also apply where there is a scheme of
reconstruction or amalgamation involving the transfer of a
business.
9. The second device involves the charge to tax when a
company that has acquired an asset from a fellow group member
subsequently leaves the group with the asset. Where the two
companies leave the group together to become members of a
second group, the current rules bring any deferred gain into
charge in certain circumstances. These circumstances depend
upon common control of the two groups being exercised by a
company. This rule will be broadened so that it applies
whenever there is common control by any person or persons.
The change will have effect when a company leaves the second
of the two groups on or after Budget day.
NOTES FOR EDITORS
1. Avoidance involving the setting off of capital gains and
losses within groups is not a new problem. Earlier schemes
involved the purchase of companies' losses, and legislation
to counter this was introduced in Finance Act 1993.
Avoidance using gain buying schemes has emerged only since the
legislation against loss buying was introduced.
2. The loss buying legislation is now in section 177A and
Schedule 7A of the Taxation of Chargeable Gains Act 1992.
Until this was introduced, groups which were expecting to
have chargeable gains could purchase companies with
unrelieved capital losses, and arrange to set these losses off
against their gains for tax purposes. The legislation
counters this by identifying the capital losses that are
available to a company when it joins a group and by
restricting the gains against which they can be set.
3. The proposed gain buying legislation adopts a similar
approach. The rules will, however, be simpler than those
against loss buying and will not apply to accounting periods
after the one in which a company joins a group. There is no
need for this because subsequent capital losses cannot be
carried back and set against gains in earlier periods.
4. The yield from the new rules is expected to be 10 million
pounds in 1998-99 and 100 million pounds in a full year. In
addition a much greater amount of revenue will be protected
in the future.
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