CG45731 - ETMD: anti avoidance provisions
UK legislation includes anti avoidance provisions which prevent abuse of the no gain/no loss and rollover rules at TCGA 1992 sections 140A - K. These anti-avoidance provisions are consistent with the anti avoidance provisions within the ETMD.
| Principal statute | Related anti-avoidance provision | Notes |
|---|---|---|
| TCGA92/S140A | TCGA92/S140B | - |
| TCGA92/S140C | TCGA92/S140D | - |
| TCGA92/S140E | TCGA92/S140E(8) | - |
| TCGA92/S140F | TCGA92/S140E(8) | Imported by s140F(5) |
| TCGA92/S140G | TCGA92/S140E(8) | Imported by s140G(5) |
| TCGA92/S140H | TCGA92/S137 | - |
| TCGA92/S140I | TCGA92/S140 | S140I depends on the transfer being of a kind mentioned in s140A(1) or (1A); if s140B applies then the transfer cannot be of such a kind |
| TCGA92/S140J | TCGA92/S140E(8) | S140J depends on the transfer being of a kind mentioned in s140E(1); if s140E(8) applies then the transfer cannot be of such a kind |
| TCGA92/S140K | TCGA92/S140B and TCGA92/S140E(8) | S140K(1)(c) requires that there be a merger or transfer to which s140E or S140A(1A) apply: those sections are prevented from applying where avoidance is present |
The anti avoidance provisions include two independent tests. If either one of those tests is failed then the effect of the anti avoidance provision is that the section concerned does not apply.
The tests are
- that the transaction is effected for bona fide commercial reasons,
- that the transaction does not form part of a scheme or arrangements of which the main purpose or one of the main purposes is avoidance of liability to income tax, corporation tax or capital gains tax.
An example would be where one of the tests in section 140B was in point in which case section 140A would not apply.
Note the second test in section 137 is different. Section 137 does not include a reference to income tax.
All decisions on whether the anti avoidance provisions as listed above operate to prevent sections 140A, C, E etc. from applying are taken in Capital Gains Technical Group. You should not express an opinion on the possible operation of the anti avoidance provisions without instructions from Capital Gains Technical Group.