Revenue Note for Guidance

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Revenue Note for Guidance

Schedule 22

[Sections 749 and 752]

Dividends Regarded as Paid Out of Profits Accumulated Before Given Date

Overview

Schedule 22 together with Chapter 2 of Part 28 counters a tax avoidance device known as “dividend stripping”. The main effect of the provision is to reduce the purchase price of shares to take account of reserves accumulated before their acquisition. The artificial loss which might otherwise be created on a subsequent disposal of those shares is effectively cancelled. Secondly, it prevents the use of tax credits by exempt persons which might otherwise be available. The Schedule contains provisions for determining whether a dividend is to be treated as paid to any extent out of profits accumulated before the shares were acquired.

Details

par 1(1) The circumstances where dividends are to be regarded as accumulated before acquisition date or deemed acquisition date (referred to as “the relevant date”) are —

  • if the dividend is declared for a period before the relevant date,
  • if there are no profits in the period between the relevant date and the date when the dividend is payable, or
  • if there are no profits available in that period for dividend payments because of other amounts which should be paid on other classes of the company’s shares.

par 1(2) Dividends are to be regarded as far as possible as paid out of post-acquisition profits and only the excess out of pre-acquisition profits.

par 1(3) The dividend is to be divided proportionately where the dividend is declared for a period which straddles the relevant date.

The Schedule contains provisions designed to ensure that the treatment to be accorded is that most favourable to the taxpayer. Any dividend paid within a year of acquisition is to be regarded as paid out of post-acquisition profits if the Appeal Commissioners are satisfied that —

  • the rate is comparable with that of the previous 3 years, or
  • par 2(1) in the case of quoted shares the rate is comparable with other similar shares.

par 2(2) The Appeal Commissioners may make such adjustments as they deem necessary to achieve this fair comparison.

par 3(2) Provision is made for determining how much profits are available for payment of a dividend. These provisions are contained in paragraphs 3 to 6. A deduction of a reasonable amount (as determined by the Appeal Commissioners) to cover dividend payments on other classes of shares is allowed from profits arising between the acquisition date and the date of dividend payment.

par 3(3) If no previous dividend was payable for that period the whole of the company’s profits, less any amount set aside under paragraph 3(2), is to be available for payment of the dividend.

par 3(4) Where a previous dividend was payable in the period between the date of acquisition of the shares and the current dividend payment, a calculation is made to determine firstly how much, if any, of the profits are regarded as being attributable to a pre-acquisition period. The balance, less any reasonable deductions under paragraph 3(2), is deemed to fund that previous dividend and only any excess after that is available to fund the current dividend payment.

par 3(5) The Appeal Commissioners, in determining how much profits are to be set aside for payment of dividends on other classes of shares, may take into account any amounts attributable to a pre-acquisition period.

par 4(1) Paragraphs 4 and 5 provide in effect a set of rules for arriving at what might be regarded as “commercial” profits.

par 4(2) The profits of a company for any given period are specified as the “income” (as determined in accordance with paragraph 5) of the company less —

  • any income tax actually borne by it for any year of assessment (not being a year after the year 1975–76) in that period,
  • any corporation profits tax paid by it in any accounting period in that period,
  • any corporation tax paid by it for any accounting period in that period, or
  • any capital gains tax paid by it for any year of assessment (not being a year after the year 1975–76) in that period.

For this purpose double taxation relief allowed on a credit basis is to be ignored, because while foreign tax of an equivalent amount will have been suffered, it will not have been taken into the above computation.

par 4(3) Provision is made to deal with a situation where an intermediate company is inserted between the two companies and is complementary to clauses (g) and (h) of paragraph 5(3).

par 5(2) The rules for determining the “income” of a company for any “specified period” are set out. The income is computed as the sum of —

  • trading profits for the period in question,
  • any other profits of that period, and
  • any capital profits of that period.

par 5(3) Certain deductions for the period in question are allowed. These are —

  • trading losses of the period in question,
  • group relief given to the company for any accounting period in that period,
  • capital allowances under income or corporation tax for that period,
  • annual payments made or charges on income allowed in that period.

In addition, where an intermediate company is put between the two companies, a dividend received from the interposed company and any part of that dividend which would have been brought in under section 752 in computing the interposed company’s profits had it been a dealing company is to be left out in computing post-acquisition income of the interposed company for the purposes of applying this provision to the dealing company. The corresponding adjustment for the tax applicable to the dividend is in paragraph 4(3).

par 6 Provision is made for an apportionment of profits for accounting periods and years of assessment which overlap the period in question.

Relevant Date: Finance Act 2020