Groups: alternative collection rights: from 1 April 2000
From 1 April 2000, FA2000/SCH29/PARA9 revised TCGA92/S190 for gains arising on or after this date. This is one of the amendments consequent upon the removal of the residence restriction in the group definition.
The revised TCGA92/S190 operates where a company (“the taxpayer company”) has been charged to corporation tax on a capital gain and all or part of the corporation tax for the accounting period in which the gain accrued is not paid within six months of the tax becoming payable. In these circumstances a notice requiring payment of the unpaid tax up to the amount of the tax on the gain may be served upon
- the principal company of the group at the time the gain accrued (this will be the principal company of the group under the extended group definition following FA2000/SCH29, and therefore may not be resident in the UK), or
- any other company which in the twelve months ending with the time the gain accrued was a member of the group and owned the asset disposed of or any part of it. If the asset is an interest in or right over another asset, the provision extends to any part of either asset.
- If the taxpayer company is a non-resident, and the gain is chargeable by virtue of TCGA92/S10B, any person who is or, during the period of twelve months ending with the time when the gain accrued was, a controlling director of the taxpayer company or of a company which has, or within that period had, control over the taxpayer company.
A notice under TCGA92/S190 (after the changes in FA2000/SCH29/PARA9) must be served within three years of the date on which the amount of Corporation Tax payable for the accounting period is finally determined. The notice must
- state the amount of Corporation Tax which remains unpaid for the accounting period in which the gain accrued, and the date when it became payable
- require the person to pay the relevant amount within 30 days of the service of the notice.
The relevant amount is the lesser of
- the amount which remains unpaid of the Corporation Tax assessed on the taxpayer company for the accounting period in which the gain accrued
- an amount equal to Corporation Tax on the amount of chargeable gain at the rate in force when the gain accrued.
Strictly, `the rate in force’ means the higher rate of Corporation Tax where there is more than one rate. Where the taxpayer company is liable at the lower rate on some or all of the gain, that should be taken into account in determining the relevant amount.
If a person is required to pay an amount by a notice under TCGA92/S190 it may be recovered from him as if it were tax due and duly demanded from him. That person is not entitled to any deduction for any amount paid as a result of that notice for the purposes of computing any income, profits or losses for any tax purpose. The payer is entitled to recover any amount paid from the taxpayer company.
You may receive information from Debt Management that tax is unpaid in a case where the provisions outlined in this paragraph could be applied. If there is plenty of time before the time limit specified above for the issue of a notice is due to expire you should draw these provisions to the attention of the taxpayer company and request that it makes the appropriate payment. If this does not lead to payment being made or if the time limit is approaching a short report should be submitted to Capital Gains Technical Group. This report should indicate from whom you consider the tax may be recoverable and, if time limit considerations permit, both the papers for the taxpayer company and those of the possible alternative payer should be attached. As the notice must be issued by the Board you can take no further action at this stage.