Other tax rules on corporate debt: group mismatch schemes: application of the conditions
The tests in condition A and B are both carried out at the outset of the scheme, by reference to:
- a company’s initial purpose in being party to a scheme, or
- what at the outset, that scheme is practically certain to achieve.
- Hindsight cannot be used to determine whether the scheme is a GMS.
A scheme that, in fact, does not produce a relevant tax advantage may still be a GMS. Equally a scheme which does ultimately produce a relevant tax advantage may not be a GMS.
It is unlikely that a standard intra-group loan or derivative would meet either condition A or B. Where UK GAAP is the measure of taxable profits then companies within a group are likely to bring amounts into account symmetrically. Where this is not the case, for instance because the group companies use different functional currencies, it is just as possible that any asymmetries would produce a tax disadvantage as a tax advantage.
If profits or losses are computed using specific tax rules that require departure from UK GAAP, for example, for the write off and release of a connected party loan, then in standard cases these rules are also likely to give rise to symmetrical credits and debits. Where this is not the case, it is just as possible that any asymmetries would produce a tax disadvantage as a tax advantage.