Residence: outward company migration: guidance notes for migrating companies
Notice and arrangements for payment of tax
1) TMA70/S109B requires a company to notify HMRC of its intention to cease to be resident in the UK and to obtain HMRC’s approval of arrangements for payment of the company’s tax liabilities. These notes explain the procedure to be followed, the information required in support of a request for approval and the arrangements that will normally be acceptable to HMRC.
2.1) A notice under TMA70/S109B (2) should be sent to:
Business, Assets & International
Foreign Profits Team
100 Parliament Street
The notice should give the intended date of migration (see paragraph 5 below). The information required by Conditions C and D of TMA70/S109B, liabilities and proposed arrangements, should normally be sent with the notice - see 3 (d) and (e) below).
2.2) As HMRC will have to check the statement of tax payable with the company’s tax office, a copy of the notice and of the tax computation should ideally be sent there by the company at the same time.
3) Information to be supplied
- The name of the company, its address in the UK and its place of incorporation.
- Its unique reference number.
- A copy of the latest available accounts.
- A detailed statement of all tax liabilities which are or will be due for periods commencing before the date of migration. The statement should cover corporation tax and, if relevant, all taxes mentioned in TMA70/S109F (1) and any accrued interest on tax (TMA70/S109F (2)). It should include any charges that arise as a consequence of the migration itself, for example, under CTA09/S41 and TCGA92/S185. (If an unlimited guarantee is to be offered - see paragraph 4.3 - the statement can be restricted to a brief summary of the tax position.)
- The company’s proposals for securing the payment of tax liabilities. These should include the name and address of the proposed attorney and of the proposed guarantor (see paragraph 4.1 and 4.2).
- If a corporate guarantor other than a bank is proposed (see paragraph 4.2), a copy of its constitutional documents (articles).
4) Arrangements for securing payment of tax
4.1 a) It will normally be necessary to appoint an attorney to act for the company in tax matters, for example, to receive notices of assessment. The attorney must be resident in the UK and will usually be an individual who is professionally qualified, for example, as a solicitor or accountant. HMRC will need to be satisfied that the migrating company has power to appoint an attorney. Further information and drafts of the power of attorney in a form approved by HMRC are available from the above address.
4.1.b) The capacity of a migrating company to appoint an attorney may be demonstrated by the opinion of a lawyer qualified in the appropriate local law upon the following matters:
i) That the company has power by its constitution and/or by appropriate local law to appoint an attorney in the terms of the draft power of attorney (see paragraph 4.1.a. above).
ii) To know what formalities, if any, are required for a valid exercise of the power to appoint an attorney.
iii) How the deed in the form of the draft power of attorney should be executed and whether execution should be notary attested.
4.2) The precise form of the arrangements will vary from case to case. Normally they will take the form of a guarantee from a company, which must be either resident in the UK or a UK branch of a foreign bank. A guarantor company must have power to act as such and a copy of its constitutional documents (articles) is required to satisfy HMRC of this. The documents should be certified by a solicitor or an officer of the company to be the version currently in force and as filed with the Registrar of Companies.
4.3) The guarantee may be unlimited or limited to a specified sum. An unlimited guarantee is given for the total tax liabilities without specifying the amount. Where the migrating company has an associated UK resident company of sufficient substance HMRC will normally look for an unlimited guarantee from that company. Where the guarantee is given by a company not associated with the migrating company, usually by a bank, HMRC understand that the guarantor will require the guarantee to be limited to a specified sum. Under TMA70/S109B (6) any dispute as to the amount can be referred to the First Tier Tribunal.
4.4) Where it is not possible for a guarantee in one of the forms indicated above to be provided, other arrangements may be acceptable. Further information is available from the above address.
5) Date of migration
5.1) HMRC will act as speedily as possible to approve the arrangements but the time required will depend on several factors. If possible the intended date of migration should be not less than two months from the date of the notice. If it is necessary to agree values of assets in order to estimate tax liabilities, the time required may be longer and companies should take this into account. However, where an unlimited guarantee is proposed, it will not usually be necessary to estimate the tax liabilities in detail and it may then be possible to approve the arrangements well within two months of the notice.
5.2) A company may decide to change the intended date of migration either for its own reasons or because, for example, the arrangements will clearly not be approved in time to meet the original date. It should then give notice of the amended date and provide details of any consequential changes in either the amount of tax and interest to be included in the arrangements or the nature of the arrangements themselves.
Where a company migrates without the requirements of TMA70/S109B being met, the persons responsible, including individual directors, may be liable for substantial penalties under TMA70/S109C and S109D. Where tax liabilities of a migrating company remain unpaid those liabilities may also be recovered from related companies, or from certain directors, under TMA70/S109E.
7) Telephone enquiries
An initial enquiry may be made to Business, Assets & International, Foreign Profits Team on 03000 534690.