Depositary receipt and clearance services: alternative clearance service charge: election FA86 / S97A
The provisions of FA86/S97A permit an operator of a clearance service to enter into an arrangement with the Commissioners for HM Revenue & Customs under which the clearance service will be accountable for a Stamp Duty Reserve Tax (SDRT) charge of 0.5 per cent (FA86/S87) arising on all agreements to transfer chargeable securities to, and traded between members of, the clearance service, rather than be accountable for a 1.5 per cent charge under FA86/S70 or FA86/S96.
The details of any such arrangement will depend on the particular circumstances involved, but some of the fundamental issues to be included in any election application that an operator must consider in seeking Commissioners’ approval are:-
- ensuring an adequate internal procedure is operated for accounting for SDRT inside or outside any electronic share settlement system, comparable with the CREST system operated by Euroclear UK & Ireland;
- ensuring that all chargeable securities are reported to the clearance system by its members and tax paid;
- considering how higher rate charges and any reliefs will be administered;
- ensuring a flow of information is available for HMRC Excise & Stamp Taxes audit purposes that is accessible in the United Kingdom;
- adequate internal procedures and controls are in place to prevent members of the clearance service from operating clearance services under cover of the arrangement;
- if the clearance service is not resident in the United Kingdom, the need to appoint a fiscal representative in the United Kingdom;
Any transfer (on sale or otherwise) of chargeable securities or relevant securities from an approved and elected clearance service (or its nominee), to a clearance service (or its nominee) which does not have a current section 97A election in place, or to a depositary receipt scheme, is subject to a 1.5 per cent charge.
An election under FA86/S97A takes its effect on a date notified to the operator by the Commissioners for HMRC when approval is given and will continue until it is terminated, either by 30 days’ notice by the operator or the Commissioners, or if there has been a breach of its terms, by the Commissioners on giving notice or at a later time. Upon termination of an election, the issue, transfer (on sale or otherwise) of chargeable securities in United Kingdom companies will be subject to a 1.5 per cent charge by reason of FA86/S96.