IEIM740030 - Meaning of Made Available

An arrangement can be made available to a reportable taxpayer in many different ways. A taxpayer could approach a promoter seeking advice or ideas, and the promoter could make available an arrangement in response to that request. Equally, an arrangement could be made available in the course of other work between an intermediary and a client, if, for example, the intermediary identifies a potential need, and suggests the arrangement as a solution. Equally, an arrangement could be proactively made available to prospective clients through a marketing campaign.

Normally, the design of an arrangement will be final before the arrangement can be said to be made available for implementation. For example, consider an intermediary who, in response to a request from a client, provides a high level outline of five different possible solutions to a problem. The solutions provide an outline of the structure of the arrangements, but a lot of the details are not yet known, and would depend on the client’s particular circumstances, and more detailed analysis of the relevant laws and regulations to ensure the arrangement works as intended. At this point, the arrangements are not being made available for implementation, as they could not reasonably be implemented at this point.

Building on this example, imagine that the client rules out two of the options, but asks to see more details about the other three. The intermediary works with the client to tailor the arrangements to the client’s particular circumstances and carries out further analysis of the legal position. However, the full tax analysis from the other jurisdiction has not yet been completed. It is reasonable to conclude that there may still be material changes to the proposed arrangements, depending on the outcome of that analysis. Again, at this point the arrangements have not been made available to the client for implementation, as there are still material factors that are still subject to change.

In response the client rejects one of the remaining options, but is interested in the other two, and commissions the intermediary to finalise the designs and identify potential sources of funding for the arrangement. The intermediary identifies a number of funding options and engages with potential lenders to finalise the two options that are confirmed as viable, although final agreement has not yet been reached, as the client has still not decided which option to proceed with. The designs are finalised and the tax analysis from the other jurisdiction is received. Although there could still be some tweaks to the design, it is unlikely that they will be material. At this stage, when the options are presented to the client, they are being made available for implementation, as the client could now pick an option and proceed to implement it.

For the purposes of reporting to HMRC, a person will not be treated as having had an arrangement made available to them if they have not expressed any interest in or engagement with the arrangement being offered. This is because they could not reasonably be expected to then implement the arrangement. For example, a person who sees an advertisement for an arrangement, but does not follow up on it, will not have had the arrangement made available to them for implementation because they could not then go ahead and implement the arrangement without further steps to understand the detail of the proposal, consider whether it was right for their particular situation and so on. That person would therefore not have any obligation to report the arrangement as a reportable taxpayer. Similarly, the promoter of such an arrangement would not have to report details of a person in that position as a reportable taxpayer in its report of the arrangement for the same reason.