CG40245 | Capital loss anti-avoidance rule: Tax advantage - choice of commercial options

The existence of a tax advantage, such as obtaining a deduction for tax purposes, is not enough in itself to show that the arrangements have a main purpose of obtaining a tax advantage.

Where there is evidence that a group considered two ways to achieve a commercial objective and chose on commercial grounds to pursue one of them, the fact that there was a beneficial difference in tax treatment for the chosen route would not meet the main purpose test. Where the potential tax treatment was a factor in choosing between alternative arrangements, then it would still be necessary that securing a tax advantage was a main purpose to the arrangements. There may be situations where the tax advantage secured through undertaking one arrangement rather than another is so significant that this indicates that achieving a tax advantage was a main purpose. This is unlikely to bethe case where the arrangements chosen do not involve additional, complex or costly steps included solely to secure or enhance a tax advantage.

It will be relevant to draw a comparison in order to consider whether, in the absenceof the tax considerations:

• the transaction giving rise to the advantage would have taken place at all;

• if so, whether the tax advantage would have been of the same amount; and

• whether the transaction would have been made under the same terms and conditions.