Finance (No. 2) Act 2017

PART 3 “Defeat” in respect of abusive tax arrangements

“Defeat” in respect of abusive tax arrangements

4 T (within the meaning of paragraph 1) incurs a “defeat” in respect of abusive tax arrangements entered into by T (“the arrangements concerned”) if—

(a) Condition A (in paragraph 5) is met, or

(b) Condition B (in paragraph 6) is met.

Condition A

5 (1) Condition A is that—

(a) T, or a person on behalf of T, has given HMRC a document of a kind listed in the Table in paragraph 1 of Schedule 24 to FA 2007 (returns etc),

(b) the document was submitted on the basis that a tax advantage (“the relevant tax advantage”) arose from the arrangements concerned,

(c) the relevant tax advantage has been counteracted, and

(d) the counteraction is final.

(2) For the purposes of this paragraph the relevant tax advantage has been “counteracted” if adjustments have been made in respect of T’s tax position on the basis that the whole or part of the relevant tax advantage does not arise.

(3) For the purposes of this paragraph a counteraction is “final” when the adjustments in question, and any amounts arising from the adjustments, can no longer be varied, on appeal or otherwise.

(4) In this paragraph “adjustments” means any adjustments, whether by way of an assessment, the modification of an assessment or return, the amendment or disallowance of a claim, a payment, the entering into of a contract settlement or otherwise.

Accordingly, references to “making” adjustments include securing that adjustments are made by entering into a contract settlement.

(5) Any reference in this paragraph to giving HMRC a document includes—

(a) communicating information to HMRC in any form and by any method;

(b) making a statement or declaration in a document.

(6) Any reference in this paragraph to a document of a kind listed in the Table in paragraph 1 of Schedule 24 to FA 2007 includes—

(a) a document amending a document of a kind so listed, and

(b) a document which—

(i) relates to national insurance contributions, and

(ii) is a document in relation to which that Schedule applies.

Condition B

6 (1) Condition B is that (in a case not falling within Condition A)—

(a) HMRC have made an assessment in relation to tax,

(b) the assessment counteracts a tax advantage that it is reasonable to assume T expected to obtain from the arrangements concerned (“the expected tax advantage”), and

(c) the counteraction is final.

(2) For the purposes of this paragraph an assessment “counteracts” the expected tax advantage if the assessment is on a basis which prevents T from obtaining (or obtaining the whole of) the expected tax advantage.

(3) For the purposes of this paragraph a counteraction is “final”—

(a) when a relevant contract settlement is made, or

(b) if no contract settlement has been made, when the assessment in question and any amounts arising from the assessment can no longer be varied, on appeal or otherwise.

(4) In sub-paragraph (3) a “relevant contract settlement” means a contract settlement on a basis which prevents T from obtaining (or obtaining the whole of) the expected tax advantage.