The Insurance Companies (Taxation of Re-insurance Business) Regulations 2018

PART 1 Introduction

Citation and commencement

1.  These Regulations may be cited as the Insurance Companies (Taxation of Re-insurance Business) Regulations 2018 and come into force on 1st June 2018.

Interpretation

2.  In these Regulations—

“the Act” means the Finance Act 2012;

“90% subsidiary” means a body corporate where 90% or more of its ordinary share capital is owned directly, or indirectly, by another body corporate;

“backing assets” means the assets which back the liabilities(1) of those policies or contracts which are referable to BLAGAB and are the subject of a re-insurance arrangement;

“non-investment risk arrangement” means a re-insurance arrangement which wholly concerns the re-insurance of risk other than risk in respect of the investment return;

“re-insurance arrangement” means an arrangement by which an insurance company re-insures any risk in respect of a policy or contract attributable to its basic life assurance and general annuity business (“BLAGAB”).

Application to new re-insurance arrangements

3.  These Regulations apply to any re-insurance arrangement which is entered into on or after 1st June 2018.

PART 2 Section 57 of the Act and excluded business

Section 57 of the Act and excluded business

4.  Except where regulation 13(2) applies, the descriptions of “excluded business” in this Part have effect for the purposes of section 57 of the Act(2).

Excluded business: group companies in the UK

5.—(1) Subject to paragraphs (5) and (6), life assurance business being re-insured is “excluded business” where conditions 1 to 3 are satisfied.

(2) Condition 1 is satisfied where—

(a) the cedant (“C”) is a 90% subsidiary of the re-insurer (“R”);

(b) R is a 90% subsidiary of C; or

(c) C and R are both 90% subsidiaries of the same body corporate.

(3) Condition 2 is satisfied where—

(a) C is resident in the UK; or

(b) C is resident outside of the UK and—

(i) the re-insurance is effected by C through a permanent establishment of C situated in the UK; and

(ii) that permanent establishment is within the charge to corporation tax by virtue of section 5(2) of the Corporation Tax Act 2009(3) in respect of the business being re-insured.

(4) Condition 3 is satisfied where the business being re-insured is BLAGAB in the hands of C.

(5) Business being re-insured by a non-investment risk arrangement which would be excluded business by virtue of conditions 1 to 3 being satisfied is not excluded business.

(6) Business being re-insured is not excluded business by virtue of this regulation where condition 2 in regulation 8(3) is satisfied in relation to that business.

Excluded business: overseas companies

6.—(1) Life assurance business being re-insured is “excluded business” where conditions 1 and 2 are satisfied.

(2) Condition 1 is satisfied where the cedant—

(a) is resident outside of the UK;

(b) does not have a permanent establishment situated in the UK; and

(c) is not within the charge to corporation tax by virtue of section 5(2) of the Corporation Tax Act 2009 in respect of the business being re-insured.

(3) Condition 2 is satisfied where the business being re-insured—

(a) is not overseas life assurance business(4) in the hands of the cedant; and

(b) is business where the benefits provided for under each policy or contract are determined by reference to the value of matched assets(5) which consist wholly or substantially of land in the United Kingdom.

(4) In paragraph (3)(b), “land” includes—

(a) buildings and other structures;

(b) land covered with water;

(c) any estate, interest, easement, servitude, right or licence in or over land.

PART 3 Section 90 of the Act – tax treatment of the cedant - prescribed arrangements

Section 90 of the Act – tax treatment of the cedant - prescribed arrangements

7.  Except where regulation 13(2) applies, the re-insurance arrangements prescribed in this Part are excluded from the operation of section 90 of the Act(6).

Excluded and non-excluded business

8.—(1) A re-insurance arrangement is prescribed where condition 1 or 2 is satisfied in relation to the arrangement.

(2) Condition 1 is satisfied where the business being re-insured is excluded business by virtue of regulation 5 and—

(a) in cases where the re-insurer is resident in the UK, where section 68 of the Act applies to the re-insurer in respect of the investment return; or

(b) in cases where the re-insurer is resident outside of the UK and the re-insurance arrangement is effected by the re-insurer through a permanent establishment situated in the UK, where section 68 of the Act applies to the permanent establishment in respect of the investment return.

(3) Condition 2 is satisfied where—

(a) section 68 of the Act applies to the cedant in respect of the investment return on the backing assets; and

(b) if an amount is due by the cedant to the re-insurer in return for the cedant having use of the backing assets, none of the amount reduces the I minus E profit of the cedant.

Cedant and re-insurer being group companies: re-insurer not resident in the UK

9.—(1) A re-insurance arrangement is prescribed where conditions 1 to 5 are satisfied in relation to the arrangement.

(2) Condition 1 is satisfied where—

(a) the cedant (“C”) is a 90% subsidiary of the re-insurer (“R”);

(b) R is a 90% subsidiary of C; or

(c) C and R are both 90% subsidiaries of the same body corporate.

(3) Condition 2 is satisfied where—

(a) C is resident in the UK; or

(b) C is resident outside of the UK and the re-insurance arrangement is effected by C through a permanent establishment of C situated in the UK.

(4) Condition 3 is satisfied—

(a) in cases where the re-insurance arrangement is not effected with a permanent establishment of R, where—

(i) R is resident in an EEA state (other than the UK where the UK is a member of the EEA); and

(ii) R is chargeable to tax under the laws of the territory in which it is resident in respect of the investment return; or

(b) in cases where the re-insurance arrangement is effected with a permanent establishment of R, where—

(i) R is resident in an EEA state (other than the UK where the UK is a member of the EEA);

(ii) the permanent establishment of R is not situated in the UK; and

(iii) the permanent establishment of R is chargeable to tax under the laws of the territory in which it is situated in respect of the investment return.

(5) Condition 4 is satisfied where none of the obligations of R under the re-insurance arrangement are subject to a further re-insurance arrangement.

(6) Condition 5 is satisfied where—

(a) the charge to tax on the investment return is on a basis equivalent to that of the I minus E rule; and

(b) the rate of tax on the investment return is no less than the policyholder’s rate of tax(7).

Non-investment risk arrangements

10.  A non-investment risk arrangement is prescribed.

Re-insurance of protection business and of immediate needs annuities

11.  A re-insurance arrangement is prescribed where the business being re-insured—

(a) is protection business, within the meaning given by section 62 of the Act but as if subsection (2)(b) referred to a contract made before 1st January 2013; or

(b) is business which consists of the effecting or carrying out of immediate needs annuities, referred to in section 57(2)(d) of the Act.

PART 4 Investment returns

Section 90(4) - amount of investment returns

12.—(1) For the purposes of section 90(4) of the Act the amount of the investment return that is treated as accruing to the cedant is the amount determined under the Schedule.

(2) Paragraph (1) does not apply to policies or contracts which are BLAGAB where those policies or contracts are negligible in comparison to the other policies or contracts which are the subject of the re-insurance arrangement.

(3) Where the cedant is not subject to section 68 of the Act by virtue of the application of section 67 of the Act, paragraph (1) does not apply to a re-insurance arrangement entered into by the cedant.

(4) This regulation is subject to the application of regulation 13(2).

PART 5 Reducing the I minus E profit

Reducing the I minus E profit

13.—(1) Subject to paragraph (3), paragraph (2) applies where the main purpose, or one of the main purposes of the cedant or re-insurer—

(a) in entering into a re-insurance arrangement; or

(b) in allowing any change in the composition of the backing assets relating to a re-insurance arrangement,

is to reduce the amount of the I minus E profit, or where the re-insurance arrangement is prescribed by virtue of regulation 9, the equivalent of the I minus E profit, of the BLAGAB carried on by the cedant or re-insurer.

(2) If this paragraph applies—

(a) Parts 2 to 4 do not apply in relation to the arrangement; and

(b) the amount of the investment return that is treated as accruing to the cedant is the amount determined under the Schedule.

(3) Paragraph (2) does not apply to business being re-insured which is excluded business by virtue of regulation 5 where the re-insurer—

(a) is resident in the UK; or

(b) is resident outside of the UK and—

(i) the re-insurance is effected through a permanent establishment of the re-insurer situated in the UK; and

(ii) that permanent establishment is within the charge to corporation tax by virtue of section 5(2) of the Corporation Tax Act 2009 in respect of the business being re-insured.

PART 6 Insurance business transfers

Insurance business transfers

14.—(1) This regulation applies where by virtue of an insurance business transfer scheme(8) of the business of the cedant, a re-insurance arrangement is transferred and—

(a) immediately before the transfer, the amount of the investment return which is referable to BLAGAB that is treated as accruing to the cedant is the amount determined under the Schedule; and

(b) after the transfer, the arrangement is not one prescribed as provided by Part 3.

(2) For the purposes of the Schedule—

(a) the transferor is the cedant until the transfer;

(b) the transferee is the cedant after the transfer and

(c) the policies and contracts to which the Schedule applies are not to be treated as ceasing to be in force by virtue of the transfer.

PART 7 Amendment

Amendment

15.—(1) The Insurance Companies (Taxation of Re-insurance Business) Regulations 1995(9) are amended as follows.

(2) After regulation 1 (citation, commencement and effect) insert—

“1A.   These Regulations do not apply in respect of any re-insurance arrangement which is entered into on or after 1st June 2018.”.

Nick Lodge

Justin Holliday

Two of the Commissioners for Her Majesty’s Revenue and Customs

26th April 2018