25(1)After section 808A of the Taxes Act 1988 insert—U.K.
“808B Royalties: special relationship.
(1)Subsection (2) below applies where any arrangements having effect by virtue of section 788—
(a)make provision, whether for relief or otherwise, in relation to royalties (as defined in the arrangements), and
(b)make provision (the special relationship provision) that where owing to a special relationship the amount of the royalties paid exceeds the amount which would have been paid in the absence of the relationship, the provision mentioned in paragraph (a) above shall apply only to the last-mentioned amount.
(2)The special relationship provision shall be construed as requiring account to be taken of all factors, including—
(a)the question whether the agreement under which the royalties are paid would have been made at all in the absence of the relationship,
(b)the rate or amounts of royalties and other terms which would have been agreed in the absence of the relationship, and
(c)where subsection (3) below applies, the factors specified in subsection (4) below.
(3)This subsection applies if the asset in respect of which the royalties are paid, or any asset which that asset represents or from which it is derived, has previously been in the beneficial ownership of—
(a)the person who is liable to pay the royalties,
(b)a person who is, or has at any time been, an associate of the person who is liable to pay the royalties,
(c)a person who has at any time carried on a business which, at the time when the liability to pay the royalties arises, is being carried on in whole or in part by the person liable to pay those royalties, or
(d)a person who is, or has at any time been, an associate of a person who has at any time carried on such a business as is mentioned in paragraph (c) above.
(4)The factors mentioned in subsection (2)(c) above are—
(a)the amounts which were paid under the transaction, or under each of the transactions in the series of transactions, as a result of which the asset has come to be an asset of the beneficial owner for the time being,
(b)the amounts which would have been so paid in the absence of a special relationship, and
(c)the question whether the transaction or series of transactions would have taken place in the absence of such a relationship.
(5)The special relationship provision shall be construed as requiring the taxpayer to show—
(a)the absence of any special relationship, or
(b)the rate or amount of royalties that would have been payable in the absence of the relationship,
as the case may be.
(6)The requirement on the taxpayer to show in accordance with subsection (5)(a) above the absence of any special relationship includes a requirement—
(a)to show that no person of any of the descriptions in paragraphs (a) to (d) of subsection (3) above has previously been the beneficial owner of the asset in respect of which the royalties are paid, or of any asset which that asset represents or from which it is derived, or
(b)to show the matters specified in subsection (7) below,
as the case may be.
(7)Those matters are—
(a)that the transaction or series of transactions mentioned in subsection (4)(a) above would have taken place in the absence of a special relationship, and
(b)the amounts which would have been paid under the transaction, or under each of the transactions in the series of transactions, in the absence of such a relationship.
(8)Subsection (2) above does not apply where the special relationship provision expressly requires regard to be had to the use, right or information for which royalties are paid in determining the excess royalties (and accordingly expressly limits the factors to be taken into account).
(9)For the purposes of this section one person (“person A”) is an associate of another person (“person B”) at a given time if—
(a)person A was, within the meaning of Schedule 28AA, directly or indirectly participating in the management, control or capital of person B at that time, or
(b)the same person was or same persons were, within the meaning of Schedule 28AA, directly or indirectly participating in the management, control or capital of person A and person B at that time.”
(2)This paragraph has effect in relation to royalties (as defined in the arrangements) payable on or after the day on which this Act is passed.