Finance Act 2003 (c. 14)

SCHEDULES

SCHEDULE 23 U.K. Corporation tax relief for employee share acquisition

Part 3 U.K. Grant of option

Introduction U.K.

11 (1) The provisions of this Part of this Schedule apply in the case of the grant of an option to acquire shares. U.K.

[F1 (2) Where the shares acquired pursuant to the option are restricted shares, the provisions of this Part have effect subject to the provisions of Part 4 of this Schedule.

(3) Where the shares acquired pursuant to the option are convertible shares, the provisions of this Part have effect subject to the provisions of Part 4A of this Schedule.]

Textual Amendments

F1 Sch. 23 para. 11(2)(3) substituted for Sch. 23 para. 11(2) (with effect in accordance with Sch. 22 paras. 68(2), 69(2) of the amending Act) by Finance Act 2003 (c. 14), Sch. 22 para. 62; S.I. 2003/1997, art. 2

The company whose shares are acquired U.K.

12 U.K. The company whose shares are acquired [F2 pursuant to] the option must be—

(a) the employing company; or

(b) a company that, at the time the option is granted, is a parent company in relation to the employing company; or

(c) a company that, at that time, is a member of a consortium that owns the employing company or a company within paragraph (b); or

(d) where, at that time, the employing company or a company within paragraph (b) is a member of a consortium that owns another company (C), a company that, at that time—

(i) is a member of the consortium or a parent company in relation to a member of the consortium, and

(ii) is also a member of the same commercial association of companies as C; or

(e) a qualifying successor company (see paragraph 13).

Textual Amendments

F2 Words in Sch. 23 para. 12 substituted (with effect in accordance with Sch. 22 paras. 68(2), 69(2) of the amending Act) by Finance Act 2003 (c. 14), Sch. 22 para. 63; S.I. 2003/1997, art. 2

Takeover of company whose shares are subject of option U.K.

13 (1) This paragraph applies where— U.K.

(a) there is a takeover of a company whose shares are the subject of a qualifying option,

(b) the holder of the option, by agreement with the acquiring company, releases his rights under that option (“the old option”) in consideration of the grant to him of another option (“the new option”), and

(c) the new option relates to shares in a qualifying company.

(2) Where those conditions are met—

(a) the company whose shares are the subject of the new option is a qualifying successor company for the purposes of paragraph 12 (requirement as to company whose shares are acquired),

(b) shares acquired [F3 pursuant to] the new option are treated for the purposes of this Schedule as if they had been acquired [F3 pursuant to] the old option, and

[F4 (c) in determining the amount of relief—

(i) any consideration given in respect of the grant of the new option is treated as if it had been given in respect of the grant of the old option, and

(ii) any consideration given in respect of the acquisition of shares pursuant to the new option is treated as if it had been given in respect of the acquisition of shares pursuant to the old option.]

(3) For the purposes of this paragraph—

(a) there is a takeover of a company where another company (“the acquiring company”) acquires control of it; and

(b) an option is a “qualifying option” if the requirements of paragraph 12 would be met in relation to [F5 the shares acquired pursuant to it].

(4) The following are qualifying companies for the purposes of this paragraph—

(a) the acquiring company;

(b) a company that, at the time of the takeover, is a parent company in relation to the acquiring company;

(c) a company that, at that time, is a member of a consortium that owns the acquiring company or a company within paragraph (b);

(d) where, at that time, the acquiring company or a company within paragraph (b) is a member of a consortium that owns another company (C), a company that, at that time—

(i) is a member of the consortium or a parent company in relation to a member of the consortium, and

(ii) is also a member of the same commercial association of companies as C.

Textual Amendments

F3 Words in Sch. 23 para. 13(2)(b) substituted (1.9.2003) by Finance Act 2003 (c. 14), Sch. 22 para. 64(2)(5); S.I. 2003/1997, art. 2

F4 Sch. 23 para. 13(2)(c) substituted (1.9.2003) by Finance Act 2003 (c. 14), Sch. 22 para. 64(3)(5); S.I. 2003/1997, art. 2

F5 Words in Sch. 23 para. 13(3)(b) substituted (1.9.2003) by Finance Act 2003 (c. 14), Sch. 22 para. 64(4)(5); S.I. 2003/1997, art. 2

[F6 Income tax position of the employee U.K.

Textual Amendments

F6 Sch. 23 para. 14 and crossheading substituted (1.9.2003) by Finance Act 2003 (c. 14), Sch. 22 para. 65; S.I. 2003/1997, art. 2

14 (1) It must be the case that the acquisition of shares pursuant to the option— U.K.

(a) is a chargeable event in relation to the employee for the purposes of section 476 of the Income Tax (Earnings and Pensions) Act 2003 (whether or not an amount counts as employment income by virtue of that event), or

(b) would be such a chargeable event in relation to the employee if the conditions specified in sub-paragraph (2) were met.

(2) The conditions mentioned in sub-paragraph (1)(b) are—

(a) that the employee was resident and ordinarily resident in the United Kingdom at all material times, and

(b) that the duties of the employment by reason of which the option was granted were performed in the United Kingdom at all material times.]

Amount of relief U.K.

15 (1) The amount of the relief is equal to the difference between— U.K.

(a) the market value of the shares at the time [F7 they are acquired pursuant to the option], and

(b) the total amount or value of any consideration given, by the recipient or another, in respect of the grant [F8 of the option or the acquisition of the shares pursuant to] the option.

(2) The consideration mentioned in sub-paragraph (1)(b) does not include—

(a) the performance of any duties of, or in connection with, the employee’s employment with the employing company, or

(b) any amount paid or payable by the employee in pursuance of—

(i) an agreement within paragraph 3A(2) of Schedule 1 to the Contributions and Benefits Act (agreement for recovery from earner of secondary Class 1 contributions in respect of share option gain), or

(ii) an election under paragraph 3B of that Schedule (election transferring to earner liability for secondary Class 1 contributions in respect of share option gain).

(3) A just and reasonable apportionment shall be made for the purposes of this paragraph of any consideration given partly in respect of the grant [F9 of the option or the acquisition of the shares pursuant to] the option and partly in respect of other matters.

(4) If the option was granted partly for the purposes of a business meeting the requirements of paragraph 3 (business must be within the charge to corporation tax) and partly for the purposes of a business in relation to which those requirements are not met, the amount of the relief shall be reduced to such extent as is just and reasonable.

Textual Amendments

F7 Words in Sch. 23 para. 15(1) substituted (1.9.2003) by Finance Act 2003 (c. 14), Sch. 22 para. 66(2)(a)(4); S.I. 2003/1997, art. 2

F8 Words in Sch. 23 para. 15(1) substituted (1.9.2003) by Finance Act 2003 (c. 14), Sch. 22 para. 66(2)(b)(4); S.I. 2003/1997, art. 2

F9 Words in Sch. 23 para. 15(3) substituted (1.9.2003) by Finance Act 2003 (c. 14), Sch. 22 para. 66(3)(4); S.I. 2003/1997, art. 2

How relief is given U.K.

16 (1) The amount of the relief is allowed as a deduction in computing for the purposes of corporation tax the profits of the business for the purposes of which the option was granted. U.K.

[F10 (2) If the company carrying on that business is a company with investment business the amount of the relief is treated as expenses of management for the purposes of section 75 of the Taxes Act 1988.]

[F11 (3) If the company carrying on that business is an insurance company carrying on life assurance business, the amount of the relief shall be treated as expenses payable to be brought into account at Step 1 in section 76(7) of the Taxes Act 1988.]

(4) If the option was granted for the purposes of more than one business within the charge to corporation tax, the amount of the deduction must be apportioned between them on a just and reasonable basis.

Textual Amendments

F10 Sch. 23 para. 16(2) substituted (with effect in accordance with art. 1(2) of the amending S.I.) by The Finance Act 2004, Sections 38 to 40 and 45 and Schedule 6 (Consequential Amendment of Enactments) Order 2004 (S.I. 2004/2310), art. 1(2), Sch. para. 70(2)

F11 Sch. 23 para. 16(3) substituted (with effect in accordance with art. 1(2) of the amending S.I.) by The Finance Act 2004, Sections 38 to 40 and 45 and Schedule 6 (Consequential Amendment of Enactments) Order 2004 (S.I. 2004/2310), art. 1(2), Sch. para. 70(3)

Timing of relief U.K.

17 (1) The relief is given for the accounting period in which the shares are acquired [F12 pursuant to] the option. U.K.

(2) The time when the shares are acquired is when the recipient acquires a beneficial interest in the shares and not, if different, the time the shares are conveyed or transferred.

Textual Amendments

F12 Words in Sch. 23 para. 17(1) substituted (1.9.2003) by Finance Act 2003 (c. 14), Sch. 22 para. 67; S.I. 2003/1997, art. 2