Finance Act 2012

6 U.K. For sections 18G to 18I substitute—

“18G Anti-diversion rule

(1) This section applies for the purposes of this Chapter for any relevant accounting period (“period X”) of a company (“company X”) in relation to a territory outside the United Kingdom (“territory X”) if—

(a) there is an adjusted relevant profits amount in relation to territory X for period X,

(b) the adjusted relevant profits amount includes diverted profits (see section 18H), and

(c) none of the exemptions mentioned in section 18I applies for period X.

(2) The diverted profits are to be left out of the adjusted relevant profits amount.

(3) For the purposes of this Chapter “adjusted”, in relation to a relevant profits amount, is what the relevant profits amount would be if it were determined without reference to gains or losses which are chargeable gains or allowable losses for corporation tax purposes.

18H What are “diverted profits”?

(1) In section 18G(1)(b) “diverted profits” means so much of company X's total profits of period X as pass through the diverted profits gateway.

(2) To determine the extent to which company X's total profits of period X pass through the diverted profits gateway, apply—

(a) section 371BB of TIOPA 2010 (controlled foreign companies: the CFC charge gateway), and

(b) except Chapter 8 of Part 9A of that Act, the other provisions referred to in that section,

as if references to the CFC charge gateway were references to the diverted profits gateway.

(3) In applying section 371BB of TIOPA 2010 and the other provisions referred to in it assume—

(a) that company X is a CFC resident in territory X,

(b) that period X is the CFC's accounting period, and

(c) that company X's total profits of period X are the CFC's assumed total profits for the accounting period.

(4) Subsection (3)(a) does not require it to be assumed that there is any change in the place or places at which company X carries on its activities.

(5) Section 371BB of TIOPA 2010 and the other provisions referred to in it are also to be applied subject to sections 18HA to 18HE below.

(6) In this section—

(a) references to company X's total profits of period X are to those profits ignoring this Chapter and step 2 in section 4(3) of CTA 2010, and

(b) references to section 371BB of TIOPA 2010 are to that section omitting subsection (2)(b).

18HA Modification of Chapter 3 of Part 9A of TIOPA 2010

Chapter 3 of Part 9A of TIOPA 2010 (the CFC charge gateway: determining which of Chapters 4 to 8 applies) applies for the purposes of section 18H(2) with the omission of—

(a) section 371CA(10)(a),

(b) in section 371CB(2), the words “or Chapter 8 (solo consolidation)”,

(c) section 371CC(1)(b), (3)(b) and (c), (4) to (7), (9) and (10),

(d) section 371CD,

(e) section 371CE(2) to (9), and

(f) section 371CG.

18HB Modification of Chapter 4 of Part 9A of TIOPA 2010

(1) Chapter 4 of Part 9A of TIOPA 2010 (the CFC charge gateway: profits attributable to UK activities) applies for the purposes of section 18H(2) with the following modifications.

(2) The modifications are—

(a) section 371DA(3)(g)(i) is to be omitted, and

(b) in section 371DH(4), after “the accounting period”, in the second place it occurs, there is to be inserted “ or the United Kingdom ”.

(3) Section 371VF(3) of TIOPA 2010 (definition of “related” person) is to be applied as relevant with the omission of paragraphs (b) and (c).

18HC Modification of Chapter 5 of Part 9A of TIOPA 2010

Chapter 5 of Part 9A of TIOPA 2010 (the CFC charge gateway: non-trading finance profits) applies for the purposes of section 18H(2) with the omission of—

(a) in section 371EA(1), the words from “so far as” to the end, and

(b) sections 371EB to 371EE.

18HD Modification of Chapter 7 of Part 9A of TIOPA 2010

Chapter 7 of Part 9A of TIOPA 2010 (the CFC charge gateway: captive insurance business) applies for the purposes of section 18H(2) with the omission of section 371GA(6)(b).

18HE Modification of Chapter 9 of Part 9A of TIOPA 2010

(1) Chapter 9 of Part 9A of TIOPA 2010 (exemptions for profits from qualifying loan relationships) applies for the purposes of section 18H(2) with the following modifications.

(2) In section 371IA(2) and (11) the reference to a chargeable company is to be read as a reference to company X (as is the reference in section 371CB(8)); and references elsewhere in Chapter 9 to company C are to be read as references to company X.

(3) For section 371IA(5) there is to be substituted—

“(5) 75% of the profits of each qualifying loan relationship are “exempt” under this Chapter.”

(4) In section 371IA(9)(a) the words “or Chapter 8 (solo consolidation)” are to be omitted.

(5) Sections 371IB to 371IE are to be omitted.

(6) Section 371IH(11)(a) is to be read ignoring the modification in section 18HC(b) above.

(7) In section 371IJ references to the relevant corporation tax accounting period are to be read as references to period X and subsection (6) is to be omitted.

18I Exemptions from anti-diversion rule

(1) The exemptions referred to in section 18G(1)(c) are the exemptions set out in Chapters 11 to 14 of Part 9A of TIOPA 2010 (controlled foreign companies: exemptions from the CFC charge).

(2) In applying those Chapters for the purposes of section 18G(1)(c)—

(a) references to section 371BA(2)(b) of TIOPA 2010 are to be read as references to section 18G(1)(c),

(b) the assumptions set out in subsection (3) are to be made, and

(c) section 371VF(3) of TIOPA 2010 (definition of “related” person) is to be read with the omission of paragraphs (b) and (c).

(3) For the purposes of subsection (2)(b), assume—

(a) that the permanent establishment which company X has in territory X is a separate company from company X,

(b) that the separate company is a CFC resident in territory X,

(c) that period X and company X's other accounting periods for corporation tax purposes are accounting periods of the CFC for the purposes of Part 9A of TIOPA 2010,

(d) that the CFC's assumed total profits for period X are the adjusted relevant profits amount,

(e) that the CFC's assumed taxable total profits for period X are the same as the CFC's assumed total profits for period X,

(f) that the CFC is connected with company X and is also connected or associated with any person with whom company X is connected or associated, and

(g) that any person who has an interest in company X also has an interest in the CFC.

(4) Chapters 11 to 14 of Part 9A of TIOPA 2010 are also to be applied subject to sections 18IA to 18ID below.

18IA The excluded territories exemption

(1) Chapter 11 of Part 9A of TIOPA 2010 (controlled foreign companies: the excluded territories exemption) applies for the purposes of section 18G(1)(c) with the following modifications.

(2) Sections 371KB(1)(b)(iii) and 371KH are to be omitted.

(3) Section 371KC is to be omitted and the assumption set out in section 18I(3)(b) above in relation to the CFC's residence is to be applied instead; and references to “the CFC's territory” are to be read accordingly.

(4) Section 371KD(3) is to be omitted and references to a CFC's accounting profits for an accounting period are to be read as references to the adjusted relevant profits amount.

(5) Section 371KE(2)(b) is to be omitted.

(6) Section 371KF is to be omitted.

(7) In section 371KG(3) the reference to the CFC's equity or debt is to be read as a reference to company X's equity or debt (ignoring the assumption in section 18I(3)(a) above).

(8) Section 371KI(2) and (3) is to be omitted.

(9) In section 371KJ—

(a) in subsection (2)(a), the reference to intellectual property held by the CFC is to be read as a reference to intellectual property held by company X (ignoring the assumption in section 18I(3)(a) above), and

(b) in subsections (2)(b) and (c) and (4), references to the CFC are to be read as references to company X (ignoring that assumption).

18IB The low profits exemption

Chapter 12 of Part 9A of TIOPA 2010 (controlled foreign companies: the low profits exemption) applies for the purposes of section 18G(1)(c) with the omission of section 371LB(2) and (4) and section 371LC(5) and (6).

18IC The low profit margin exemption

(1) Chapter 13 of Part 9A of TIOPA 2010 (controlled foreign companies: the low profit margin exemption) applies for the purposes of section 18G(1)(c) with the following modifications.

(2) In section 371MB—

(a) subsection (2) is to be omitted, and

(b) references to the CFC's accounting profits for an accounting period are to be read as references to the adjusted relevant profits amount determined before any deduction for interest.

18ID The tax exemption

(1) Chapter 14 of Part 9A of TIOPA 2010 (controlled foreign companies: the tax exemption) applies for the purposes of section 18G(1)(c) with the following modifications.

(2) At step 1 in section 371NB(1)—

(a) in the first paragraph, the reference to section 371TB of TIOPA 2010 is to be read as a reference to the assumption in section 18I(3)(b) above relating to the CFC's residence, and

(b) the second paragraph is to be omitted.

(3) References to the CFC's local chargeable profits arising in the accounting period are to be read as references to the adjusted relevant profits amount and, accordingly, sections 371NB(4) and 371NC(2) to (4) are to be omitted.

(4) For the purposes of step 3 in section 371NB(1) the amount of the corresponding UK tax for the accounting period is to be determined in accordance with subsection (5) below; and section 371NE is to be omitted accordingly.

(5) “The corresponding UK tax” is the amount of corporation tax which would be payable in respect of the adjusted relevant profits amount if it were subject in full to corporation tax, ignoring any credit which would be allowed against it under section 18(3) of TIOPA 2010 and assuming, where there is more than one rate of corporation tax applicable to period X, that it were chargeable at the average rate over period X.”