Intangible assets: company reorganisations: transfer of UK trade between EU residents: further conditions
As mentioned in CIRD42030, there are three further conditions to be satisfied before tax neutral treatment under FA02/SCH29/PARA85 is due:
- A claim for the tax neutral treatment has to be made by both transferor and transferee company.
- The intangible assets transferred must be chargeable intangible assets (CIRD20035) immediately before and after the transfer in the hands of the respective companies.
- The transfer must be undertaken for bona fide commercial reasons, and must not form part of a scheme or arrangements where the main (or one of the main) purposes is avoidance of liability to CT, CG tax or income tax - see points to note below.
Commercial purpose test - points to note
There is a provision for companies to seek advance clearance that the third condition above (the commercial purpose test) is satisfied. The Anti-Avoidance Group(Intelligence), Clearance and Counteraction Team deals with all clearance applications and the procedure is described in CIRD42100.
Where a company submits tax computations on the basis that tax neutral treatment under paragraph 85 is available and there is no record of a clearance application, inspectors should send a report and the file to the Anti-Avoidance Group (Intelligence), Clearance and Counteraction Team.