Finance (No. 2) Act 2017

PART 2 Approval of a qualifying loan etc.

Application to HMRC

20 (1) The liable person in relation to a qualifying loan may make an application to the Commissioners for Her Majesty’s Revenue and Customs for approval of the loan.

(2) An officer of Revenue and Customs may grant such an application if satisfied that, in relation to the loan—

(a) the qualifying payments condition is met (see paragraph 21), or

(b) the commercial terms condition is met (see paragraph 22).

(3) Subject to sub-paragraph (4), an application may be made in 2018.

(4) An application may be made after 2018 if an officer of Revenue and Customs considers it is reasonable in all the circumstances for the liable person to make a late application.

(5) An application for an approval must be made in such form and manner, and contain such information, as may be specified by, or on behalf of, the Commissioners for Her Majesty’s Revenue and Customs.

(6) An officer of Revenue and Customs must notify the applicant of the decision on an application.

(7) Where on an application under this paragraph a loan is approved, the approval may be revoked by an officer of Revenue and Customs if the officer considers that—

(a) information provided in making the application contained an inaccuracy, and

(b) the inaccuracy was deliberate on the applicant’s part.

(8) Where approval is revoked under sub-paragraph (7), approval is to be treated as having been refused at the outset.

(9) In this paragraph “liable person”, in relation to a loan, means the person who is liable for any tax on the value of the relevant step in relation to the loan under paragraph 1.

Qualifying payments condition

21 (1) The qualifying payments condition is met in relation to a qualifying loan if, during the relevant period—

(a) payments have been made to the lender in respect of the repayment of the principal of the loan, and

(b) the payments have been made at intervals not exceeding 53 weeks.

(2) The “relevant period” in relation to a loan is the period beginning with the making of the loan and ending with the making of the application.

Commercial terms condition

22 (1) The commercial terms condition is met in relation to a qualifying loan if—

(a) either—

(i) it is reasonable to assume that, had the qualifying loan been made in the ordinary course of a lending business, loans on terms comparable to those of the qualifying loan would have been available to members of the public, or

(ii) the qualifying loan was made in the ordinary course of a lending business, and

(b) the borrower has, in all material respects, complied with the terms of the loan.

(2) For the purposes of sub-paragraph (1), a loan is made in the ordinary course of a lending business if it is made by a person in the ordinary course of a business carried on by the person which includes—

(a) the lending of money, or

(b) the supplying of goods or services on credit.

Accelerated payments

23 (1) Paragraph 24(1) applies where—

(a) a person (“P”) would (ignoring paragraph 24) be treated as taking a relevant step within paragraph 1 by reason of making a loan, or a quasi-loan, to a relevant person,

(b) an accelerated payment notice, or a partner payment notice, relating to a relevant charge (the “accelerated payment notice”) has been given under Chapter 3 of Part 4 of FA 2014,

(c) the relevant person makes a payment (the “accelerated payment”) in respect of the understated or disputed tax to which the notice relates,

(d) the accelerated payment is made on or before the relevant date, and

(e) the amount of the loan or quasi-loan that, at the end of the relevant date, is outstanding for the purposes of paragraph 1 (see paragraphs 3 to 18) is equal to or less than the amount of the accelerated payment.

(2) In sub-paragraph (1)(b), “relevant charge” means a charge to tax arising by reason of a step taken pursuant to the relevant arrangement concerned.

(3) The reference in sub-paragraph (2) to the relevant arrangement concerned is a reference to the relevant arrangement in pursuance of which, or in connection with which, the loan or quasi-loan mentioned in sub-paragraph (1)(a) is made.

(4) In sub-paragraph (1)(d) and (e), “the relevant date” means—

(a) the approved repayment date, if P has made a loan which is an approved fixed term loan on 5 April 2019, or

(b) 5 April 2019, in any other case.

(5) In sub-paragraphs (1)(c) and (2)—

(a) the reference to tax includes a reference to relevant contributions, and

(b) the reference to a charge to tax includes a reference to a liability to pay relevant contributions;

and for those purposes “relevant contributions” has the same meaning as in Schedule 2 to the National Insurance Contributions Act 2015 (application of Part 4 of FA 2014 to national insurance contributions).

(6) If more than one notice relating to a particular relevant charge has been given—

(a) the reference in sub-paragraph (1)(e) to the amount of the accelerated payment is to be treated as a reference to the aggregate of the amounts of each accelerated payment in respect of which the conditions in sub-paragraph (1)(c) and (d) are met, and

(b) the reference in paragraph 24(2) to the accelerated payment notice is to be treated as a reference to the accelerated payment notices or any of them.

24 (1) The relevant person may make an application to the Commissioners for Her Majesty’s Revenue and Customs for P to be treated—

(a) as taking the relevant step only if the condition in sub-paragraph (2) is met, and

(b) as doing so not at the time given by paragraph 1(2) but immediately before—

(i) the end of the 30 days beginning with the date on which the condition in sub-paragraph (2) becomes met, or

(ii) if later, the end of 5 April 2019.

(2) The condition is that, on the withdrawal of the accelerated payment notice or on the determination of an appeal, any part of the accelerated payment is repaid.

(3) Subject to sub-paragraph (4), an application under sub-paragraph (1) may be made in 2018.

(4) An application may be made after 2018 if an officer of Revenue and Customs considers it is reasonable in all the circumstances for the relevant person to make a late application.

(5) An application must be made in such form and manner, and contain such information, as may be specified by, or on behalf of, the Commissioners for Her Majesty’s Revenue and Customs.

(6) An officer of Revenue and Customs must notify the applicant of the decision on an application under this paragraph.

(7) A favourable decision on an application under this paragraph may be revoked by an officer of Revenue and Customs if the officer considers that—

(a) information provided in making the application contained an inaccuracy, and

(b) the inaccuracy was deliberate on the applicant’s part.

(8) Where the decision on an application is revoked under sub-paragraph (7), the application is to be treated as having been refused at the outset.