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STATUTORY INSTRUMENTS


2005 No. 2082

CORPORATION TAX

The Finance Act 2002, Schedule 26, Parts 2 and 9 (Amendment No. 2) Order 2005

  Made 27th July 2005 
  Laid before House of Commons 27th July 2005 
  Coming into force in accordance with Article 1[a]

The Treasury, in exercise of the powers conferred upon them by paragraph 13 of Schedule 26 to the Finance Act 2002[1] and paragraph 52 of Schedule 4 to the Finance Act 2005, make the following Order:

Citation, commencement and effect
     1. —(1) This Order may be cited as the Finance Act 2002, Schedule 26, Parts 2 and 9 (Amendment No. 2) Order 2005.

    (2) Subject to paragraph (5), this Order shall come into force on 17th August 2005.

    (3) Subject to paragraphs (4) to (6), this Order has effect in relation to periods of account beginning on or after 1st January 2005 and ending on or after 17th August 2005.

    (4) Articles 3, 5, 7, 8, 9, 12, 13, 14, 15, 16, 19, 21, 22 and 23 have effect in relation to periods of account beginning on or after 1st January 2005 and ending on or after 16th March 2005.

    (5) Article 6—

    (6) Articles 2 and 10 have effect accordingly.

Amendment of Part 2 of Schedule 26 to the Finance Act 2002
    
2. Part 2 of Schedule 26 to the Finance Act 2002 is amended as follows.

    
3. In paragraph 2(4) for "Schedule 26" substitute "this Schedule".

    
4. —(1) Amend paragraph 3 as follows.

    (2) In sub-paragraph (1)(a) omit "or".

    (3) After sub-paragraph (1)(a) insert—

    (4) In sub-paragraph (1)(c) after "paragraph (a)" insert "or (b)".

    (5) In sub-paragraph (3) for "which used the relevant" substitute "which used a relevant".

    (6) After sub-paragraph (3) insert—

    (7) In sub-paragraph (5) for the words preceding paragraph (a) substitute "In this paragraph "relevant accounting standard" means—".

    
5. —(1) Amend paragraph 4 as follows.

    (2) In sub-paragraph (2)(b)—

    (3) In sub-paragraph (2A)—

    (4) In sub-paragraph (2B)—

    (5) After sub-paragraph (2B) insert—

     6. After paragraph 4A insert—

     7. In paragraph 11(1) for "In this Part of this Schedule" substitute "In this Schedule".

    
8. —(1) Amend paragraph 12 as follows.

    (2) In sub-paragraph (1) after paragraph (b) insert—

    (3) For sub-paragraph (12) substitute—

    (4) After sub-paragraph (16) insert—

Amendment of Part 4 of Schedule 26 to the Finance Act 2002
     9. In Part 4 of Schedule 26 to the Finance Act 2002 omit paragraph 21.

Amendment of Part 9 of Schedule 26 to the Finance Act 2002
    
10. Part 9 of Schedule 26 to the Finance Act 2002 is amended as follows.

    
11. —(1) Amend paragraph 44 as follows.

    (2) For sub-paragraph (1) substitute—

    (3) After sub-paragraph (2) insert—

     12. In paragraph 45C(1)(d)[5] for "does" substitute—

     13. —(1) Amend paragraph 45D[6] as follows.

    (2) In sub-paragraph (2)—

    (3) After sub-paragraph (3) insert—

    (4) In sub-paragraph (4) insert the following definition at the appropriate place—

    (5) For sub-paragraph (8) substitute—

    (6) After sub-paragraph (8) insert—

     14. In paragraph 45E[7] omit sub-paragraph (5).

     15. —(1) Amend paragraph 45F as follows.

    (2) After sub-paragraph (2)(e) insert—

    (3) In sub-paragraph (7) after "this paragraph" insert—

    (4) For sub-paragraph (8) substitute—

     16. After paragraph 45F[8] insert—

     17. After paragraph 45G[9] insert—

     18. —(1) Amend paragraph 45J[11] as follows.

    (2) In sub-paragraph (3)(a) for "14(3) (non-trading" substitute "14(2) and (3) (trading and non-trading".

    (3) For sub-paragraph (4) substitute—

    (4) For sub-paragraph (5) substitute—

    (5) In sub-paragraph (8)—

    (6) For sub-paragraph (9) substitute—

     19. After paragraph 45J insert—

     20. —(1) Amend paragraph 45K[12] as follows.

    (2) For sub-paragraph (1)(d) substitute—

    (3) In sub-paragraph (2) after paragraph (d) insert—

    (4) In sub-paragraph (3)—

    (5) After sub-paragraph (3) insert—

     21. —(1) Amend paragraph 45L[13] as follows.

    (2) In sub-paragraph (1)—

    (3) For sub-paragraph (2) substitute—

    (4) After sub-paragraph (2) insert—

     22. —(1) Amend paragraph 45M[14] as follows.

    (2) In sub-paragraph (1)—

    (3) In sub-paragraph (2)(a) omit "which is a zero coupon bond".

    (4) Omit sub-paragraph (3).

    (5) After sub-paragraph (4) insert—

     23. Omit paragraph 48A[15].


Vernon Coaker

Tom Watson
Two of the Lords of Her Majesty's Treasury

27th July 2005



EXPLANATORY NOTE

(This note is not part of the Order)


This Order amends Schedule 26 (derivative contracts) to the Finance Act 2002 (c. 23).

Article 1 provides for the citation, commencement and effect of the Order.

Article 2 introduces the amendments to Part 2 of Schedule 26.

Article 3 amends paragraph 2(4) to correct the reference to the Schedule.

Article 4 amends paragraph 3 extending the types of relevant contracts which are treated as derivative contracts to contracts which are treated for accounting purposes as, or as forming part of, a financial asset or liability.

Article 5 amends paragraph 4 to extend the type of relevant contract which is excluded from being a derivative contract by virtue of its underlying subject matter.

Article 6 inserts two new paragraphs, 4B and 4C, which make transitional provisions in relation to relevant contracts which are chargeable assets but are not derivative contracts.

Article 7 amends paragraph 11 so that paragraph applies to the whole of Schedule 26 of the Finance Act 2002.

Article 8 amends paragraph 12 to include definitions of new terms.

Article 9 omits paragraph 21 of Schedule 26 which is redundant as a consequence of amendments made by Finance Act 2002, Schedule 26, Parts 2 and 9 (Amendment) Order 2005 (S.I. 2005/646).

Article 10 introduces the amendments to Part 9 which are made by articles 11 to 23. The effect of these amendments is to clarify the tax treatment in relation to host contracts and embedded derivatives primarily where the underlying subject matter is shares or rights of a unit holder under a unit trust scheme.

Article 11 makes consequential amendments to paragraph 44 (derivative contracts ceasing to be held for purposes of trade).

Article 12 amends paragraph 45C (derivative contracts relating to land or certain tangible movable property) to exclude derivative contracts which are within paragraph 45K (issuers of securities with embedded derivatives: deemed contracts for differences).

Article 13 amends paragraph 45D (embedded derivatives which are options) in relation to life assurance business and to exclude existing assets (i.e. an asset representing a creditor relationship of a company to which section 93 (convertible securities etc.: creditor relationships) of the Finance Act 1996 (c. 8) applied).

Article 14 amends paragraph 45E (exclusions from paragraph 45D) in consequence of the omission of paragraph 48A.

Article 15 amends paragraph 45F (creditor relationships: embedded derivative which are exactly tracking contracts for differences) to exclude existing assets (i.e. an asset representing a creditor relationship of a company to which section 93 (relationships linked to the value of chargeable assets) of the Finance Act 1996 (c. 8) applied).

Article 16 inserts a new paragraph 45FA to provide for the treatment of existing assets excluded from paragraphs 45D and 45F.

Article 17 inserts a new paragraph 45H to provide for the treatment of net gains and losses on the terminal exercise of an option comprised in a derivative contract and a new paragraph 45HA to provide for the treatment of credits and debits on the terminal exercise of an equity option.

Article 18 amends paragraph 45J (issuers of securities with embedded derivatives: deemed options) in relation to the treatment of deemed options.

Article 19 inserts a new paragraph 45JA to provide for the treatment of an issuer of convertible debt securities which are treated for accounting purposes as equity instruments.

Article 20 amends paragraph 45K (issuers of securities with embedded derivatives: deemed contracts for differences) to exclude existing liabilities owed by a company.

Article 21 amends paragraph 45L (derivatives not embedded in a loan relationship) to introduce an election for this paragraph not to apply.

Article 22 amends paragraph 45M (treatment of host contract as a loan relationship) to clarify the treatment of a host contract which is not itself a loan relationship.

Article 23 omits paragraph 48A (embedded derivatives in connected party loans) so embedded derivatives in connected party loans may be taxed on a chargeable gains basis.

This Order does not impose any new costs on business.


Notes:

[1] 2002 c. 23. Paragraph 13 is amended by paragraph 2 of Schedule 9 to the Finance Act 2004 (c. 12) and paragraph 52 of Schedule 4 to the Finance Act 2005 (c. 7).back

[2] Sections 91A and 91B were inserted by paragraph 10(1) and (2) of Schedule 7 to the Finance (No. 2) Act 2005 (c. 22).back

[3] 1996 c. 8. Section 94A was inserted by section 52 of and paragraph 13 of Schedule 10 to the Finance Act 2004 (c. 12).back

[4] 1986 c. 41.back

[5] Paragraph 45C was inserted by article 15 of S.I. 2004/2201.back

[6] Paragraph 45D was inserted by article 15 of S.I. 2004/2201 and amended by articles 5 and 6 of S.I. 2004/3270.back

[7] Paragraph 45E was inserted by article 15 of S.I. 2004/2201.back

[8] Paragraph 45F was inserted by article 15 of S.I. 2004/2201 and amended by articles 5 and 7 of S.I. 2004/3270.back

[9] Paragraph 45G was inserted by article 15 of S.I. 2004/2201 and amended by articles 5 and 8 of S.I. 2004/3270.back

[10] 1992 c. 12.back

[11] Paragraph 45J was inserted by articles 5 and 10 of S.I. 2004/3270 and amended by articles 13 and 16 of S.I. 2005/646.back

[12] Paragraph 45K was inserted by articles 5 and 10 of S.I. 2004/3270 and amended by articles 13 and 17 of S.I. 2005/646.back

[13] Paragraph 45L was inserted by articles 5 and 10 of S.I. 2004/3270.back

[14] Paragraph 45M was inserted by articles 13 and 18 of S.I. 2005/646.back

[15] Paragraph 48A was inserted by articles 5 and 11 of S.I. 2004/3270.back


[a] Amended by Correction Slip. Page 1, above the preamble; "Coming into force in accordance with regulation 1" should read "Coming into force in accordance with article 1". back




ISBN 0 11 073191 3


 © Crown copyright 2005

Prepared 3 August 2005


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