Deduction of tax: qualifying private placements: the gateway conditions
The Gateway Conditions
ITA07/S888A(2) defines a qualifying private placement as a security which:
- represents a debtor loan relationship of a company;
- is not listed on a recognised stock exchange; and
- meets other conditions specified in regulations.
The term ‘security’ is not specifically defined in ITA07/S888A and can encompass a wide range of debt instruments that are capable of being transferable investments. It does not require that a lender has rights over assets put up as security for the debt, although this will often be the case.
Nor does the term ‘security’ require that the instrument is in a particular form. The private placement market increasingly makes use of standardised documentation. These standard templates may be in the form of notes issued by a borrower, or in the form of a loan. Loan-like agreements are not precluded from the exemption by the use of the term ‘security’ in the gateway condition. The use of different types of instrument is often determined by the differing requirements of lenders in particular territories.
The Qualifying Private Placements Regulations 2015 apply to ‘relevant securities’. See SAIM9330 for more on this.
The private placement must represent a debtor loan relationship of a company. A private placement may be in the form of a loan to a UK company from a non UK-resident intermediary that issues notes to investors, with the payments on the notes secured on the loan to the UK borrowing company or guaranteed by it. Provided the other conditions set out in regulations are met (SAIM9330 onwards), the borrowing company can benefit from the exemption from the duty to deduct income tax from the interest paid to the intermediary.