Chapter 3: Profits of property businesses: basic rules
Section 209: Charge to tax on profits of a property business
775.This section applies the corporation tax charge to the profits of a property business. It is based on sections 9, 15 and 18 of ICTA.
Section 210: Profits of a property business: application of trading income rules
776.This is the main rule for calculating the profits of a property business. It is based on section 21A of ICTA. The corresponding rule for income tax is in section 272 of ITTOIA.
777.The same basic rules apply to the calculation of both UK and overseas property businesses.
778.From 1998, the profits of a Schedule A business charged to corporation tax are calculated by treating the business as similar to a trade and applying the calculation rules of Schedule D Case I.
779.In the source legislation this is achieved by section 21A of ICTA. But, at the margins, the application of certain of the Case I rules to Schedule A is not altogether clear.
780.First, the relationship of section 21A(2) of ICTA to section 21A(1) of ICTA is uncertain. Section 21A(2) of ICTA refers to provisions that apply “in accordance” with section 21A(1). It is open to debate whether section 21A(2) of ICTA merely contains examples of the Schedule D Case I provisions that apply in accordance with the general rule in section 21A(1) of ICTA or whether it contains an exhaustive list of those provisions. The former appears the better view and the one best reflecting the underlying policy.
781.Second, some Schedule D Case I provisions that are applied to Schedule A are inherently incapable of applying to income from land. The “herd basis” provisions in section 97 of, and Schedule 5 to, ICTA (rewritten in Chapter 8 of Part 3 of this Act) are an example. They are among the provisions of Chapter 5 of Part 4 of ICTA that are applied to Schedule A specifically (subject to stated exceptions) by section 21A(2) of ICTA. But they are not among the exceptions referred to in section 21A(4) of ICTA. On the other hand, some Schedule D Case I provisions outside Chapter 5 of Part 4 of ICTA that seem potentially more relevant, such as the car hire provisions in sections 578A and 578B of ICTA, are not applied specifically.
782.Section 210 clarifies these matters by listing all the trading income provisions in Part 3 of this Act that are relevant to property business profits.
783.Some of the sections in Part 3 of this Act that are applied to a property business contain rewrite changes. Those changes are carried through to property income. Details of those changes are recorded in the Annex 1 notes on the particular sections in Part 3.
784.Subsection (2) lists all the provisions in Part 3 that are relevant to property business income. It reflects the principle that section 21A(1) of ICTA applies all Schedule D Case I calculation provisions to Schedule A unless they are expressly disapplied elsewhere. Provisions that are expressly disapplied in the source legislation are excluded from the list.
785.Also excluded are provisions which are attracted to Schedule A in the source legislation either expressly by section 21A(2) of ICTA or under the general principle expressed in section 21A(1) of ICTA, but which are incapable of applying once carried over to the context of the property business. Exclusion is achieved simply by omitting them from the list of provisions that do apply.
786.The majority of the provisions in Part 3 that can apply to a property business are applied by subsection (2). But in some cases later sections set out the provisions specifically (sections 261 and 262 (adjustment on change of basis) and the sections in Chapter 9 of this Part (post-cessation receipts)).
787.The following sections that are applied by subsection (2) merit specific mention. These are:
sections 56 to 58: expenses of car hire; and
sections 172 to 175: deduction for unremittable amounts.
788.Including these accurately reflects the effect of section 21A(1) of ICTA.
789.Although the list in subsection (2) excludes trading income provisions that are inherently incapable of applying to a property business it does not exclude those that are merely unlikely to apply. This recognises the possibility of certain provisions applying in unusual circumstances. Examples are sections 87 and 88 (scientific research). Although their relevance to a property business is unlikely, it is not inconceivable and they are needed to cater for the possibility of a landlord funding an activity that would qualify as “scientific research”. An example might be research on the decontamination of brown land with a view to building an investment property on it.
Section 211: Loan relationships and derivative contracts
790.This section defines the relationship of the rules in Parts 5 and 7 to those in this Part. It is based on section 15 of ICTA.
791.Subsection (1) drops the words of the source “carried on by a company” in referring to a property business because in the context of corporation tax only legislation, they are redundant.
792.Subsection (2) is based on the premise that, in the source legislation, the second sentence of paragraph 2(3) of Schedule A is really about the relationship between that provision and section 80(5) of FA 1996 and paragraph 1(2) of Schedule 26 to FA 2002. The source makes a wide statement about the relationship between “this Schedule [A]” and Part 4 of FA 1996 and Schedule 26 to FA 2002. This Act disposes of the concept of Schedule A so the rewritten references are necessarily more focussed.
Section 212: Items treated as receipts and expenses
793.This section gives signposts to other relevant rules of calculation. It is new.
794.In particular the CAA rules override the rules against the inclusion of capital items in sections 53 and 93 of this Act (applied to this Part by section 210(2)).
Section 213: Certain amounts brought into account under Part 3
795.This section excludes from the profits of a property business certain income from land that, exceptionally, may be taxed as profits of a trade. It is based on section 15 of ICTA. See Changes 4, 5 and 6 in Annex 1 and the commentary on sections 43, 44 and 45. The corresponding rule for income tax is in section 273 of ITTOIA .
Section 214: Relationship between rules prohibiting and allowing deductions
796.This section determines the interaction between those provisions that prohibit a deduction and those provisions that allow a deduction. It is new. The corresponding rule for income tax is in section 274 of ITTOIA.
797.This section does a similar job in Part 4 to that which section 51 does in Part 3. The general principle is that a rule allowing a deduction takes priority over a rule prohibiting a deduction. But that is subject to the exceptions the section mentions. See Change 7 in Annex 1.
798.Subsection (4) makes it clear that the effect of this priority rule extends to the large number of trading income rules that apply to property income indirectly through section 210.