Eligible expenditure: apportionments: ‘fair and reasonable’
S1216AH, S1216CG Corporation Tax Act 2009
The amount of Television Tax Relief (TTR) to which a Television Production Company (TPC) is entitled in respect of a television programme trade is determined by the amount of core expenditure (see TPC50010) which is used or consumed in the UK.
Where a programme is partly produced in the UK and partly overseas, such as in an international co-production, it will follow that some goods and services will be used or consumed in more than one country. In such cases, it will be necessary to make an apportionment of the relevant core expenditure between UK and non-UK expenditure.
This applies in the case of goods and services used or consumed throughout core expenditure stages. That is, it applies to expenditure incurred during pre-production, principal photography and post-production.
The method for making an apportionment is not fixed and can be determined on a case by case basis. The key criterion is that it must be done on a fair and reasonable basis.
More than one fair and reasonable basis
There will often be more than one ‘fair and reasonable’ basis. The requirement is not that the apportionment must be made using the fairest and most reasonable basis, but simply that it must be made on a basis that is fair and reasonable.
Two principal actors, Mr A and Ms B, are respectively paid fees of £100k and £50k for performing in a programme. The scenes are filmed partly in the UK and partly overseas.
The actors commit to filming for two weeks in the UK and two weeks overseas. Both actors commit to making themselves available throughout these periods. However, they are not required for the full length of time.
|Mr A||Ms B|
|Time available for filming in the UK||14||14|
|Time available for filming overseas||14||14|
|Actual filming days UK||10||3|
|Actual filming days overseas||5||9|
From this information, it is possible to apportion using two fair and reasonable methods.
It would be reasonable to apportion the actors’ fees between the UK and overseas territory based on the time that each has made themselves available for filming in the respective locations. That is, 50% in the UK and 50% overseas.
Total fees apportioned to UK expenditure would be £75k.
It would also be reasonable to apportion the actors’ fees between the UK and overseas territory based on the time that each spent on location actually filming. In that case, the respective proportions of Mr A and Ms B’s fees attributed to the UK would be 67% and 25%.
Total fees apportioned to the UK would be £79.2k.
Each method may be used. However, it should be used consistently where possible. It would not be fair to ‘cherry pick’ and apportion Mr A’s fees by reference to filming days and apportioning Ms B’s fee by availability.
Use of allocation keys
It may be that expenditure cannot be easily apportioned between particular locations or that considerable effort is required to do so. Where this is the case, it may be fair and reasonable to base the apportionment on other expenditure that is considered to be related. This should provide a fair and reasonable approximation.
For example, in the above example, concerning Mr A and Ms B, it may be fair and reasonable to allocate the costs of camera operators on the same basis used for Mr A and Ms B.
Impact of the result
What is a fair and reasonable method of apportionment in any particular case should have regard to the likely impact of the result.
Where the method used involves larger costs, or is used as an allocation key for a larger cost, more consideration is required as to what is fair and reasonable.