Taxation (International and Other Provisions) Act 2010

Taxation (International and Other Provisions) Act 2010

2010 CHAPTER 8

Commentary on Sections

Part 4: Transfer pricing

Chapter 4: Position, if only one affected person potentially advantaged, of other affected person

Section 174: Claim by the affected person who is not potentially advantaged

358. This section allows the affected person who is not potentially advantaged to make a claim to calculate profits in accordance with the arm’s length provision imposed on the advantaged person. It is based on paragraphs 6(1) and (2) and 6A(1) of Schedule 28AA to ICTA and paragraph 5(1) of Schedule 2 to CTA 2009.

359. “For the purposes of this paragraph” in paragraph 6(2) of Schedule 28AA has not been rewritten on the grounds that it was unnecessary to do so since the person making the claim can be expected to identify the purpose for which the claim is made. This omission is consistent with the approach taken in paragraph 6C(2) of Schedule 28AA to ICTA.

360. Paragraph 6(2) of Schedule 28AA makes a claim subject to paragraph 8 of the Schedule. Subsection (4) of this section recognises that paragraph 8 is rewritten Parts 5 (loan relationships) and 7 (derivative contracts) of CTA 2009.

361. Subsection (4) provides that subsection (2) is subject to section 180 (which rewrites the trading stock rules in paragraph 6A of Schedule 28AA). Although paragraph 6A was not listed in the opening words of paragraph 6(2) of Schedule 28AA, the opening words of paragraph 6A achieve the same result as would have been achieved by such listing.