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Finance Act 2012

Chapter 7: Supplementary

216.New section 357G sets out the procedure for making an election under new section 357A.

217.New sections 357G(1) and (2) require a company to provide a notice of election that specifies the first accounting period for which the rules are to apply.

218.New section 357G(3) sets out the latest date by which an election can be made for any particular accounting period. This is the date by which an amended corporation tax return for that period must have been submitted in accordance with paragraph 15 of Schedule 18 to Finance Act 1998.

219.New section 357G(4) ensures that the election applies to all the trades carried on by the company, so that it is not possible to make an election in respect of only some of a company’s trades.

220.New subsection 357G(5) ensures that an election made under new section 357A need only be made once, and that the election will continue to have effect until it is revoked.

221.New section 357GA sets out the terms under which a company may revoke an election it has made under new section 357A.

222.New sections 357GA(1) and (2) require a company to give a notice revoking the election, which specifies the first accounting period for which the rules are to cease to apply.

223.New section 357GA(3) sets out the latest date by which an election can be revoked for any particular accounting period. This is the date by which an amended corporation tax return for that period must have been submitted in accordance with paragraph 15 of Schedule 18 to Finance Act 1998.

224.New section 357GA(4) specifies that the revoking of an election has effect for all future accounting periods of the company, until and unless the company makes a new valid election under new section 357A.

225.New section 357GA(5) specifies that a new election under new section 357A can only have effect after five years have elapsed since the company revoked a previous election.

226.New sections 357GB(1) and (2) introduce the amendments that are made to the rules in order for them to apply to a company that carries on a trade in partnership with other persons.  In brief, the provisions of the regime are to be applied to the firm as a whole in similar way as they apply to a single company carrying on a trade, subject to the modifications set out in new sections 357GB(3) to (9).  A partnership may include both corporate and non-corporate partners, and any deduction to be made in consequence of an election under new section 357A is made only for the purposes of determining the share of a member who is liable to corporation tax.

227.New section 357GB(3) sets out the procedure for a corporate partner to make or revoke an election for the Patent Box, and the effect of its doing so.  Any corporate partner in a firm may choose to make or revoke an election under new section 357A.  The effect of the election is that the partner’s share in the profits (or losses) of the firm is computed as if the election had been made or revoked by the firm.  An election made or revoked by one partner has no effect on the shares of any other partner.

228.New section 357GB(4) ensures that references to the time limits applying to the making or revoking of an election are those relevant to the corporate partner rather than the firm.

229.New section 357GB(5) applies the rules in section 1261 of the CTA 2009 for determining accounting periods of the firm where there is a corporate partner.

230.New section 357GB(6) ensures the firm must meet the active ownership condition, even though it is not a member of a group.

231.New sections 357GB(7) and (8) sets out that a firm meets the development condition in respect of an IP right where either the partnership itself, or a corporate partner with at least a 40 per cent share in the partnership has carried out qualifying development in relation to that right.

232.New section 357GB(9) applies the rules in new section 357BD that determine whether the development condition is met by a company that is at some time a member of a group to a firm.

233.New sections 357GB (10) amends condition B of the active ownership condition where it is to be applied to a corporate partner.

234.New section 357GB(11) modifies the provision for a small claims election, so that it is appropriate to claims made by a corporate partner.

235.New sections 357GB(12) & (13) ensure that any corporate partner who is party to an arrangement designed to secure a return from the firm that is economically equivalent to the receipt of interest is treated as if they had not made an election under new section 357A.

236.New section 357GC sets out how the Patent Box regime is to be applied to a company that is a member of a cost-sharing arrangement.

237.New section 357GC(1) defines a cost-sharing arrangement.  This is an arrangement between several parties where one party holds a qualifying IP right, or an exclusive licence over such a right. The arrangement leads to the creation or development of an invention to which each party makes a contribution in terms of funding or other activity.  All the parties are entitled to a share of the income attributable to that right proportionate to their participation in the arrangement, or have rights in respect of the invention.

238.New section 357GC(2) treats a company, which is party to the cost-sharing arrangement but which does not hold the qualifying IP rights created or developed under the arrangement, as if it did hold those qualifying IP rights.

239.However, new section 357GC(3) prevents this treatment where the income received by the company in respect of its contributions to the arrangement is economically equivalent to interest.

240.New section 357GC(4) ensures that cost-sharing arrangements which lead to the development of new ways to use or apply an invention are included in the same way as those which seek to develop the invention itself.

241.New section 357GD defines a group for the purposes of the Patent Box regime.  This is a company, A, and any other company that is associated with company A. For this purpose, a company (company B) is associated with company A at any time during an accounting period of company A if any one of following five conditions is met.

242.The first condition is that the financial results of company A and company B meet the consolidation condition. The consolidation condition is defined in new section 357GD(9).

243.The second condition is that company A and company B are connected. Sections 466 to 471 of CTA 2009 apply for the purposes of establishing connection.

244.The third condition is that company A has a major interest in company B or vice-versa. Major interest has the same meaning as in sections 473 and 474 of CTA 2009.

245.The fourth condition is that company A and a third company meet the consolidation condition and that third company has a major interest in company B.

246.The fifth condition is that company A and a third company are connected and that that third company has a major interest in company B.

247.New section 357GD(9) defines the consolidation condition in terms of the financial results of any two companies which :

  • Are required to be fully consolidated into group accounts;

  • if they are not required to be fully consolidated in such accounts, then this is due to a specific exemption; or

  • whether or not there is a requirement for them to be fully consolidated, are actually fully comprised in group accounts.

248.New section 357GD(10) specifies that group accounts means accounts prepared under section 399 of the Companies Act 2006 or any corresponding provision of the law of a territory outside of the UK.

249.New section 357GE provides information on the interpretation of Part 8A.

250.New section 357GE(1) defines ‘invention’, ‘item’, ‘the OECD Model Tax Convention’, ‘the OECD Transfer Pricing Guidelines’ and ‘qualifying residual profit’.

251.New section 357GE(2) ensures that references to the calculations of the profits (or losses) of the trade for a company are to be read as calculations of profit or loss for corporation tax purposes.

252.New section 357GE(4) amends the index of defined expressions in Schedule 4 to the Corporation Tax Act 2010 to include expressions that are defined in part 8A.

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