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Finance Act 2010

Details of the Schedule

Part 1 – The Tax

2.Part 1 sets out the circumstances in which the charge to BPT arises, defines key terms and sets out anti-avoidance provisions.

3.Paragraph 1 imposes the charge to BPT. BPT arises on the aggregate of the amounts of chargeable “relevant remuneration” (defined in paragraph 4) “awarded” (defined in paragraph 6) during “the chargeable period” (defined in paragraph 8) to or in respect of “relevant banking employees” (defined in paragraph 9) of a “taxable company” (defined in paragraph 3) by reason of their employment as relevant banking employees. Relevant remuneration is “chargeable” only to the extent that it exceeds £25,000.

4.Paragraph 2 sets the rate of BPT at 50 per cent.

5.Paragraph 3 defines a “taxable company”. Taxable companies will include banks resident in the UK and relevant foreign banks trading in the UK. Members of banking groups will also be taxable companies if they are investment companies resident in the UK or financial trading companies, as will building societies and UK resident investment companies or UK resident financial trading companies of a building society group. Part 3 of the Schedule defines the terms used in paragraph 3.

6.Paragraph 4 defines “relevant remuneration”. Relevant remuneration includes anything that constitutes earnings under section 62 of the Income Tax (Earnings and Pensions) Act 2003 (ITEPA) in relation to the employee’s employment by the taxable company as a relevant banking employee or benefits which do not themselves constitute earnings provided by reason of that employment but does not include “excluded remuneration”. The employee’s income tax position is irrelevant for the purposes of determining whether or not anything is relevant remuneration.

7.Paragraph 5 defines “excluded remuneration”.

8.Paragraph 5(1) provides that “excluded remuneration” means: any regular salary, wages or benefits; anything where a contractual obligation to pay or provide it to the employee arose before 12.30 pm on 9 December 2009; shares awarded under an approved share incentive plan and share options granted under a Save As You Earn (SAYE) option.

9.Paragraph 5(2) defines the meaning of “regular” in relation to salary, wages or benefits. Regular means the amount of salary, wages or benefits that cannot change because of the performance of the employee, the company or the business of any person connected with the taxable company.

10.Paragraphs 5(3) and (4) set out that a contractual obligation entered into prior to 9 December 2009 to pay or provide something to the employee will not be taken to arise for the purposes of BPT until the amount to be paid or provided becomes fixed. A contractual obligation is taken to arise even if payment or provision is dependent on compliance with any condition.

11.Paragraph 6 defines “awarded”.

12.Paragraph 6(1) provides that relevant remuneration is awarded when either a contractual obligation to pay or provide it arises during the chargeable period or that the relevant remuneration is paid or provided during the chargeable period without any such obligation having arisen during that period, subject to paragraph 6(3).

13.Paragraph 6(2) provides that paragraph 5(3)(a) (which sets out when a contractual obligation to pay or provide something will be deemed to arise for the purposes of BPT) applies for the purposes of paragraph 6(1) as it applies for the purposes of paragraph (5)(1)(b).

14.Paragraph 6(3) provides that relevant remuneration is not to be taken to be awarded during the chargeable period if: it is required to be paid or provided at intervals, is in respect of performance or similar considerations relating to times after the chargeable period and where payment is not being made to reduce the liability to BPT.

15.Paragraph 6(4) provides that paragraph 5(4) (which provides that a contractual obligation to pay or provide something is taken to arise even if it depends on the employee complying with any conditions) applies for the purposes of paragraph 6 as it applies for the purposes of paragraph (5)(1)(b).

16.Paragraph 7 defines the “amount” of remuneration.

17.Paragraph 7(1) provides, subject to paragraphs 7(2) to 7(4), how the amount of relevant remuneration is to be established.

18.Paragraph 7(2) provides for a situation in which relevant remuneration is awarded to the employee under a contractual obligation and the amount is not fixed at the time of the award. In these circumstances, a reasonable assumption should be made at the time the award is made as to what the amount will be when it is paid or provided.

19.Paragraph 7(3) provides that, where the market value of any relevant remuneration at the time of award exceeds or would exceed what would otherwise be its amount, the market value figure should be used in calculating the amount of relevant remuneration.

20.Paragraph 7(4) provides that where relevant remuneration is subject to any restrictions; the amount of remuneration is calculated as if the restrictions did not exist.

21.Paragraph 7(5) defines “restriction” as any condition, restriction or other provision that causes the value of the relevant remuneration to be reduced.

22.Paragraph 8 defines the “chargeable period”. The chargeable period begins at 12.30 pm on 9 December 2009 and ends on 5 April 2010.

23.Paragraph 9 defines “relevant banking employee”.

24.Paragraph 9(1) provides, subject to paragraph 9(7), that an employee of a taxable company is a relevant banking employee if they are employed in “banking employment” and resident in the UK in the 2009-10 tax year, or their banking employment duties are performed wholly or partly in the UK in that year.

25.Paragraph 9(2) defines “banking employment”. It is employment which is wholly or mainly concerned, directly or indirectly, with activities to which paragraph 9(3) applies.

26.Paragraph 9(3) applies to activities that are “listed regulated activities” or consist of the lending of money or of dealing in currency or commodities as principal.

27.Paragraph 9(4) defines what is meant by “listed regulated activities” by reference to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.

28.Paragraph 9(5) provides that an activity is not a listed regulated activity in relation to an employee of a taxable company in two situations. First, where the taxable company is an insurance company or a member of the same group as an insurance company and the activity is carried on wholly on behalf of the insurance company. Second, where the activity is such an activity by virtue of article 21 or 25 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (dealing in investments as agent or arranging deals in investments) and is carried out as part of, or wholly in support of, the taxable company or a company within the same group as a taxable company and the activities consist of being a discretionary investment manager (defined in the Handbook of Rules and Guidance made by the Financial Services Authority (“FSA Handbook”)) for clients who are not linked entities. “Linked entity” is defined by paragraph 44(11).

29.Paragraph 9(6) exempts an employee of a taxable company who spends no more than 60 days in the UK in the 2009-10 tax year from the definition of relevant banking employee of the taxable company for the purposes of BPT.

30.Paragraphs 9(7) and (8) set out whether or not any particular day should be included when calculating whether or not the individual has been present in the UK for no more than 60 days.

31.Paragraph 10 applies to a situation in which an employee has multiple employments.

32.Paragraph 10(1) provides that the £25,000 limit that applies to chargeable relevant remuneration applies whether or not the employee has more than one relevant employment with a taxable company.

33.Paragraph 10(2) provides that where relevant remuneration is awarded to a relevant banking employee during the chargeable period by a number of “associated taxable companies” the £25,000 threshold is to be divided by the number of taxable companies. This prevents employers splitting the contracts of employees in order to reduce liability to BPT.

34.Paragraph 10(3) defines what is meant by “associated taxable companies”.

35.Paragraph 11 covers payments made to intermediaries. It applies where an individual personally performs banking services (services wholly or mainly concerned (directly or indirectly) with activities to which paragraph 9(3) applies) for a taxable company, but the contract for these services involves another person (“the intermediary”). If the individual would be a relevant banking employee if the contract were with the taxable company, the individual will be treated as such and any award of relevant remuneration will be chargeable to BPT.

36.Paragraph 12 applies to arrangements for future payments. If an arrangement is made during the chargeable period by reason of the employee’s employment as a relevant banking employee of the taxable company for money or other benefit to be paid or provided after the chargeable period which would be relevant remuneration awarded to the employee if it were paid or provided during the chargeable period, the making of the arrangement is to be regarded as the awarding of relevant remuneration.

37.Paragraph 13 makes provisions in relation to loans. It applies where a “relevant loan” (one made to reduce a liability to BPT, any other tax, or national insurance contributions) is provided during the chargeable period to or in respect of a relevant banking employee. It also applies where a contractual obligation to provide such a loan arises during the chargeable period. In these circumstances, the amount of the loan, or the amount that is reasonable to assume will be loaned, is treated as relevant remuneration. This is an anti-avoidance measure to prevent loans being given to employees in place of a bonus.

38.Paragraph 14 sets out anti-avoidance provisions. These apply where “relevant arrangements” (either making a payment or providing a benefit outside of the chargeable period or providing any reward that equates in substance to relevant remuneration) are entered into during the chargeable period and the main purpose, or one of the main purposes of doing so is a “relevant tax avoidance purpose” (one designed to reduce the charge to BPT). In these circumstances liability to BPT is to be determined as if the amount involved were paid or provided during the chargeable period, or as if the reward were given in the form of relevant remuneration during the chargeable period.

39.Paragraph 15 provides that BPT is not deductible when computing profits or losses for income tax or corporation tax purposes.

Part 2 – Collection and Management of Tax

40.Paragraph 16 provides that the Commissioners for HM Revenue & Customs (HMRC) are responsible for the collection and management of BPT.

41.Paragraph 17 provides that BPT is payable on or before 31 August 2010.

42.Paragraph 18 imposes an obligation on a taxable company to deliver a return to HMRC for the purposes of BPT on or before 31 August 2010.

43.Paragraph 19 provides that HMRC may publish requirements as to the content, form and manner of delivery of a return and requirements as to the documents to be delivered with the return. The return must include a self-assessment of the BPT payable by the taxable company and a declaration by the person making the return that to the best of their knowledge the return is correct and complete.

44.Paragraph 20 provides that where a return does not include a self-assessment, HMRC can make an assessment on the taxable company’s behalf based on the information in the return. Any such assessment is to be treated as a self-assessment and as included in the return.

45.Paragraphs 21(1)-(3) provide that taxable companies may amend their returns. Amendments are to be made by notice to HMRC in such form and containing such information as HMRC may reasonably require. The deadline for amendments is 31 August 2011.

46.Paragraph 21(4) provides that paragraph 21(1) does not allow a taxable company to correct its return merely because an amount determined under paragraph 7(2), 12(2) or 13(3) differs from the amount actually paid, provided or loaned.

47.Paragraph 22 provides for HMRC to amend a return to correct obvious errors or mistakes in the return by a notice to the taxable company (although the company can reject this notice within 30 days of the date notice was given). A correction may not be made more than nine months after the day on which the return was delivered, or if a correction is made under paragraph 21, the date of the amendment made under that paragraph.

48.Paragraph 23 provides that HMRC may commence an enquiry into a return on or before 31 August 2011 (if the return is submitted on or before 31 August 2010) or up to and including the 31 January, 30 April, 31 July or 31 October next following the first anniversary of the day on which the return was delivered, if it is submitted after 31 August 2010. The enquiry extends to anything contained in the return, or required to be contained in the return and certain provisions of Schedule 18 to the Finance Act (FA) 1998 apply for the purposes of an enquiry into a return as they do for an enquiry into a company tax return.

49.Paragraph 24 provides for HMRC to make a determination of the amount of BPT payable if a taxable company has not made a return on or before 31 August 2010. This must be served on the taxable company stating the date on which it is given and will be the amount payable by the taxable company unless it is superseded by a relevant assessment. If HMRC have started proceedings for recovery of BPT before the determination is superseded by a relevant assessment the proceedings may continue for the recovery of the amount of tax shown on the assessment which has not been paid. A relevant assessment is one included in a return delivered by the taxable company within 12 months of the date of the determination, or made by HMRC under paragraph 20 following delivery of a return. A determination may not be made after 31 August 2013.

50.Paragraphs 25 to 28 provide for HMRC to make a discovery assessment.

51.Paragraph 25 applies where HMRC discovers, in respect of a taxable company, that an amount of BPT that should have been assessed has not been assessed, that an assessment is insufficient or that a repayment has been made that should not have been repaid. In these circumstances, HMRC may make an assessment (a “discovery assessment”) of the amount that in their opinion should be charged to make good the loss of BPT. A discovery assessment may only be made where condition A (see paragraph 25(4)) or condition B (see paragraph 24(5)) is met.

52.Paragraph 26 provides that a discovery assessment must be served on the taxable company and must include the date that it is given and the time limit for an appeal.

53.Paragraphs 27(1)-(4) provide that a discovery assessment may not be made after the relevant deadline. This is:

  • 5 April 2030 if the situation resulted from deliberate action or careless failure to deliver a return on or before 31 August 2010;

  • 5 April 2016 if the situation resulted from the company acting carelessly (subject to paragraph 27(2)(b)); and

  • 5 April 2014 in all other cases.

54.Paragraph 27(5) defines for the purposes of paragraph 27 that “the situation” means the one discovered by HMRC and provides that a reference to a taxable company is treated as including a reference to a person acting on its behalf.

55.Paragraph 28 provides that a taxable company may appeal against a discovery assessment, in writing to the officer who gave notice and within 30 days of the date the notice of assessment was given and that an objection against a discovery assessment on the grounds that paragraph 25, 26 or 27 was not complied with must be made by an appeal against the assessment.

56.Paragraph 29 provides that HMRC may publish requirements regarding the method or methods to be used by taxable companies for paying BPT and that Part 6 of the Taxes Management Act 1970 (TMA) (collection and recovery) applies for BPT as it applies to corporation tax.

57.Paragraph 30 provides for interest on late payments and repayments.

58.Paragraph 30(1) provides that paragraph 30 will apply if a Treasury order is made to bring sections 101 and 103 of FA 2009 into force. Section 101 sets out the general proposition for applying late payment interest to any sum due under or by virtue of an enactment to HMRC. Section 103 provides that the late payment and repayment rates of interest shall be specified in regulations.

59.Paragraph 30(2) provides that paragraph 4(1) of Schedule 53 to FA 2009 (special provision: late payment interest start date) has effect as if reference were also made to BPT. The interest start date in respect of BPT assessed and recoverable under paragraph 25(1)(c) of this Schedule is 31 August 2010.

60.Paragraph 30(3) provides that interest charged under section 101 of FA 2009 on BPT, may be enforced as if it were an amount of BPT.

61.Paragraph 31 makes provisions for overpaid BPT.

62.Paragraph 31(1)-(3) provide that paragraphs 50 to 51G of Schedule 18 to FA 1998 (overpaid tax) apply to BPT assessable for the chargeable period. The provisions will apply in the same way as they do for corporation tax assessable for an accounting period, with minor modifications to reflect differences between the two taxes. A claim under paragraph 51 of Schedule 18 in respect of BPT may not be made after 31 August 2014 and the relevant restrictions for making a discovery assessment are the conditions and time limits imposed by paragraphs 25(3) and 27 of this Schedule.

63.Paragraph 31(4) provides that that paragraph 31(1) does not allow a taxable company to make a claim under paragraph 51 of Schedule 18 merely because an amount determined under paragraphs 7(2), 12(2) or 13(3) of this Schedule differs from the amount actually paid, provided or loaned.

64.Paragraphs 32 and 33 provide for appeals and other proceedings.

65.Paragraph 32 provides that Part 5 of TMA (appeals and other proceedings) applies to an appeal against a discovery assessment to BPT in the same way as it applies to an appeal against an assessment to corporation tax and that references in Part 5 to tax are to be read as applying to BPT.

66.Paragraph 33 provides that where certain provisions of other Acts are applied by this Part of this Schedule they are to be read in a way that is consistent with the application of BPT to those provisions.

67.Paragraphs 34 and 35 impose an obligation to keep records.

68.Paragraph 34 provides that each taxable company must keep any records that it may need to establish and verify the amount of BPT it is liable to pay and to deliver a correct and complete return. These and any other relevant records (as defined in paragraph 34(2)) must be maintained until 31 August 2016. Records, or the information contained within those records, may be preserved in any form and by any means.

69.Paragraph 35 provides that a taxable company that does not comply with the obligations in paragraph 34 of this Schedule is liable to a penalty not exceeding £3,000. Sections 100 to 102 of TMA apply to a penalty under paragraph 34 of this Schedule as they apply to section 12B(5) of that Act. Sections 100 to 102 TMA set out procedures for determining the amount of any penalty, provide rights of appeal against any penalty and provide a power for HMRC to mitigate penalties in appropriate circumstances.

70.Paragraph 36 applies Schedule 36 to FA 2008 (information and inspection powers) to BPT and provides that references in paragraph 21 of that Schedule to “the chargeable period” and notice of enquiry” are to be read as reference to the corresponding provisions relating to BPT.

71.Paragraphs 37 to 39 provide for penalties.

72.Paragraph 37 provides that the provisions of Schedule 24 to FA 2007 (penalties for errors) apply to BPT and that references in Schedule 24 to a tax period are to be read as a reference to the chargeable period within the meaning of this Schedule.

73.Paragraph 38 provides that the provisions of Schedule 55 to FA 2009 (penalties for failure to make payments on time etc) apply to BPT whether or not that Schedule is in force for other purposes.

74.Paragraph 39 provides that Schedule 56 to FA 2009 (penalty for failure to make payments on time) applies to BPT as if references to BPT were inserted into the relevant place in that Schedule whether or not that Schedule is in force for other purposes.

75.Paragraphs 40 to 42 contain miscellaneous provisions.

76.Paragraph 40(1) provides that the provisions in TMA about the responsibility of company officers; the loss, destruction or damage to assessments, returns, etc; the want of form or errors in assessment not to invalidate assessments, etc; and the delivery and service of documents apply to BPT.

77.Paragraphs 40(2) provides that the application of section 115 of TMA (delivery and service of documents) in relation to the delivery of BPT returns is subject to the requirements of paragraph 19(1) of this Schedule.

78.Paragraph 41 provides that Chapter 6 of Part 22 of the Corporation Tax Act 2010 (collection of tax from UK representatives of non-UK resident companies) applies to Part 2 of this Schedule as it applies to corporation tax.

79.Paragraph 42 provides the sections 118(5) to 118(7) (interpretation) of TMA apply for the purposes of BPT.

Part 3 – Definitions

80.Paragraph 43(1) defines a “UK resident bank” as a company resident in the UK that is not an excluded company (defined in paragraph 44(9)); which is authorised by the Financial Services Authority (FSA) under section 31 of the Financial Services and Markets Act 2000, to carry out regulated activities and which accepts deposits (see paragraph 44(1)(a)) or is both a BIPRU 730k firm and a full scope BIPRU investment firm (terms defined in the FSA Handbook) whose activities consist wholly or mainly of any of the regulated activities described in paragraph 44(1)(b) to (f) and which meets the capital resources condition (as set out in paragraph 44). The relevant regulated activity or activities (as defined in paragraph 44(1)) must be carried on wholly or mainly in the course of trade.

81.Paragraph 43(2) provides that “UK resident bank” also includes a company that is resident in the UK, is not an excluded company and is a member of a partnership which meets the conditions set out in sub-paragraph (1)(b) to (d).

82.Paragraph 43(3) defines “relevant foreign bank” as a company that is not resident in the UK, but which carries on a trade in the UK through a permanent establishment; is not an excluded company; is authorised by the FSA to carry out regulated activities; and which is either a deposit-taker or is both a BIPRU 730k firm and a full scope BIPRU investment firm whose activities consist wholly or mainly of any of the relevant regulated activities described in paragraph 44(1)(b) to (f) and meets the capital resources condition. The relevant regulated activity or activities must be carried on wholly or mainly in the course of the trade.

83.Paragraph 43(4) provides that “relevant foreign bank” also includes a company that is not resident in the UK and is not an excluded company but which is a member of a partnership which meets the conditions in sub-paragraph (1)(b) to (d).

84.Paragraph 44(1) defines “relevant regulated activity” by reference to certain provisions of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001. The relevant regulated activities are accepting deposits, dealing in investments as principal or agent, arranging deals in investments, safeguarding and administering investments and entering into regulated mortgage contracts.

85.Paragraph 44(2) defines the “capital resources condition”. The condition is that a company (or partnership – see paragraph 44(6)) has a capital resources requirement (as defined in the FSA Handbook) of at least £100 million.

86.Paragraph 44(3) defines the “capital resources condition” where the company is a member of a group and there are other companies in that group or partnerships of which companies in that group are members which meet either of the conditions in sub-paragraph (4) and provides an aggregation rule.

87.Paragraph 44(4) sets out the conditions referred to in sub-paragraph (3) which are that the company or partnership is both a BIPRU 730k firm and a full scope BIPRU investment firm; or a company or partnership which carries out any deposit-taking activities in the UK.

88.Paragraph 44(5) provides that the capital resources requirement is that requirement as at the end of the last period of account ending no later than the end of the chargeable period.

89.Paragraph 44(6) provides that where determining whether a company which is a member of a partnership is a UK resident bank or a relevant foreign resident bank references to the company in sub-paragraph (2) are to be read as references to the partnership.

90.Paragraph 44(7) explains how to determine the capital resources requirement where the company or partnership does not prepare its accounts in sterling.

91.Paragraph 44(8) provides that where a company carries on a trade in the UK through a permanent establishment, the capital resources requirement in respect of the UK permanent establishment is to be determined in the same way as capital would be attributed to the permanent establishment for corporation tax purposes (in accordance with Chapter 4 of Part 2 of the Corporation Tax Act 2009).

92.Paragraph 44(9) defines the phrase “excluded company” for the purposes of the BPT. A company will be an excluded company if it comes within only one of sub-paragraphs (a) to (k).

93.Paragraph 44(10) defines “asset management activities” for the purposes of BPT.

94.Paragraph 44(11) defines “linked entity” for the purposes of BPT.

95.Paragraph 44(12) identifies the terms used in paragraphs 43 and 44 which have the same meaning as in the FSA Handbook.

96.Paragraph 44(13) provides that for the purposes of BPT, a company is treated as a BIPRU 730k firm and a full scope BIPRU investment firm if its activities in the UK would qualify it as such a firm if its registered office (or head office as the case may be) were not outside the UK.

97.Paragraph 44(14) to (17) provides that HM Treasury may by order amend paragraph 44 and sets out the procedure in relation to such an order. Any order may have effect in relation to any time after 9 December 2009 and will be subject to the affirmative resolution procedure.

98.Paragraph 45(1) and (2) provides that a company is a “member of a banking group” at any time if it is a member of a group at that time or immediately before the start of the chargeable period, and that group does not meet the exempt activities test (see sub-paragraphs (7) and (8)) and any of the conditions A to C as set out in sub-paragraphs (3) to (5) is met.

99.Paragraph 45(6) defines “holding company” for the purposes of sub-paragraph (5) (that is condition C). The principal company will be a holding company of another company if the principal company is an investment company and that other company is an effective 51 per cent subsidiary of the principal company and is not an effective 51 per cent subsidiary of any company that is not an investment company.

100.Paragraph 45(7) provides that a group meets the exempt activities test if at least 90 per cent of the group’s trading income for the relevant period is derived from exempt activities.

101.Paragraph 45(8) defines “exempt activities” and “the relevant period” and states that “the trading income of the group” for the relevant period is to be calculated in accordance with paragraph 46.

102.Paragraph 45(9) defines “insurance activities”, “lending activities” and “related activities” and provides that “related activities” does not include dealing on own account.

103.Paragraph 45(10) defines “activities” and “regulated insurer” for the purposes of sub-paragraph (9).

104.Paragraph 45(11) provides that a company ceases to be a member of a banking group if it ceases to meet the conditions of sub-paragraph (2) as a result of an arm’s length transaction undertaken for wholly commercial purposes or following a recommendation of a relevant regulatory body.

105.Paragraph 45(12) provides that obtaining a tax advantage is not a commercial purpose.

106.Paragraph 45(13) defines “tax advantage” for the purposes of this Schedule and defines “tax” as including bank payroll and any other tax.

107.Paragraph 45(14) defines “relevant regulatory body” for the purposes of sub-paragraph (11) as the FSA or a comparable body in a foreign jurisdiction.

108.Paragraph 45(15) defines “dealing on own account” for the purposes of paragraph 45.

109.Paragraph 46 applies for the purposes of calculating the trading income of the group for the relevant period and defines a number of terms used within the paragraph.

110.Paragraph 47 defines “investment company” and “UK resident investment company”.

111.Paragraph 48 defines “financial trading company”, “UK resident financial trading company” and “relevant foreign financial trading company”.

112.Paragraph 49(1) contains definitions of terms used in the Schedule.

113.Paragraph 49(2) provides that section 170(2) to (11) of the Taxation of Chargeable Gains Act 1992 applies to the Schedule in respect of the terms used in connection with “group”, “principal company”, “effective 51% subsidiary”, “company” etc. in the same way as it applies to sections 171 to 181 of that Act.

114.Paragraph 49(3) provides that section 993 of the Income Tax Act 2007 applies to the Schedule in respect of the interpretation of “connected person”.

115.Paragraph 49(4) provides that questions of residency for the purposes of the Schedule are to be determined in accordance with the rules relating to corporation tax.

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