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Avoidance of tax by factoring of business income — Orbitax Tax News & Alerts

The government has announced that legislation, effective from 6 June 2006, will be introduced at the Report Stage (which is normally early in July) of the Finance Bill 2006 to prevent avoidance of tax by the factoring of taxable receipts or the creation of tax-deductible expenses in return for a lump sum that is not taxed as income. Draft legislation was published on 6 June 2006 to enable interested parties to comment, particularly on the scope of the provisions. The draft legislation deals with arrangements which, in economic terms and for accounting purposes, are secured loans, but where the legal form is that of a transfer of an asset subject to arrangements under which the transferor will, if the asset (including a right to income) does not waste to nil, reacquire control of it once payments have been made that equate in substance to the amount needed to repay the consideration for the transfer together with interest.

UK tax law has taken two distinct approaches to such arrangements. Where the asset transferred consists of shares or securities, the arrangement will normally amount to a repo and in such a case the economic substance and the accounting treatment are, in general, followed with the repo price incorporating an interest element. A similar approach is taken for certain "alternative finance" arrangements. On the other hand, where the asset transferred is an interest in land including a right to rents, whether from land or from plant and machinery, the approach taken in Secs. 43A to 43G and Sec. 785A of the Income and Corporation Tax Act 1988 (ICTA) is to treat the transfer as income rather than capital gain.

Avoidance schemes have come to light which involve a person who holds an asset from which income or taxable receipts (such as trade receipts), and disposes of that asset for a lump sum. The sum equates in substance to the receipt of loan finance with the receipts foregone representing repayment of that loan plus interest. It is claimed that the income or receipts are not taxable (or the expense is tax deductible), while the lump sum either gives rise to a capital gain or is not taxable at all. The transaction would be accounted as a loan in accordance with its economic substance (whether in consolidated accounts or individual accounts), but the tax effect the borrower seeks is the obtaining of tax relief not only for the "finance charge" but also the principal of the loan.

The government considers that such arrangements should be taxed in accordance with their economic substance rather than their legal form, and that it should not matter what the nature of the transferred asset is. But in deciding how to tax such transfers, the government was faced with a choice of either the repo route or the rent-factoring route. It considers that the better route is the repo route since that more faithfully reflects the economic substance and accounting treatment of the transactions. It is also somewhat less harsh than the approach taken by the rent-factoring legislation. Consequently, the rent factoring legislation in Secs. 43A to 43G of the ICTA will be subsumed and repealed.

The legislation will ensure that if the arrangement (called a structure finance arrangement in the draft legislation) is accounted for as a loan, the borrower is taxed as if it had entered into a normal loan at interest. Thus, the factored income or receipts will still be treated as arising to the borrower, because the substance is that they are merely security for the loan. Accordingly, the transfer that is in substance by way of security will be disregarded for the purposes of tax on chargeable gains. In the type of scheme where expenses are generated, they will not be allowed for tax purposes. In both cases, a deduction will be allowed for any finance charge shown in the accounts. The effect is to tax the borrower in the same way as if it had taken out a loan of the amount of the lump sum received. The tax treatment of the lender will not be affected.

There is a power in the draft legislation to exclude transactions in addition to repos and alternative finance arrangements, but the government would prefer to know whether there are transactions which ought to be excluded from the legislation before the amendments incorporating the legislation are tabled at the Report Stage. It is therefore interested in knowing whether there are further exclusions that ought to be included in the draft legislation which do not fall within the exclusion for amounts treated wholly as income, or the exclusions for repo and alternative finance arrangements. In particular, the government is anxious to know whether any types of finance lease and transactions (including leases and lease-backs or sales and lease-backs or any kinds of securitization arrangements) ought to be excluded. Any representations in relation to particular types of arrangement should explain why it is considered not appropriate to bring those arrangements within the scope of this legislation, either because those transactions are already taxed in accordance with their economic substance and accounting treatment, or there are good reasons why they should not be.