Section 259CB | Hybrid or otherwise impermissible deduction/non-inclusion mismatches and their extent

(1)There is a “hybrid or otherwise impermissible deduction/non-inclusion mismatch”, in relation to a payment or quasi-payment, if either or both of case 1 or 2 applies.

(2)Case 1 applies where—

(a)the relevant deduction exceeds the sum of the amounts of ordinary income that, by reason of the payment or quasi-payment, arise to each payee for a permitted taxable period, and

(b)all or part of that excess arises by reason of the terms, or any other feature, of the financial instrument.

(3)So far as the excess arises—

(a)by reason of a relevant debt relief provision, or

(b)in relevant debt relief circumstances,

it is to be taken not to arise by reason of the terms, or any other feature, of the financial instrument (whether or not it would have arisen by reason of the terms, or any other feature, of the financial instrument regardless).

(3A)So far as the excess arises by reason of an interest distribution designation, it is to be taken not to arise by reason of the terms, or any other feature, of the financial instrument (whether or not it would have arisen by reason of the terms, or any other feature, of the financial instrument regardless of that designation).

(4)Subject to subsections (3), (3A) and (9), for the purposes of subsection (2)(b)—

(a)it does not matter whether the excess or part arises for another reason as well as the terms, or any other feature, of the financial instrument (even if it would have arisen for that other reason regardless of the terms, or any other feature, of the financial instrument), and

(b)an excess or part of an excess is to be taken to arise by reason of the terms, or any other feature, of the financial instrument (so far as would not otherwise be the case) if, on making such of the relevant assumptions in relation to each payee as apply in relation to that payee (see subsections (5) and (6)), it could arise by reason of the terms, or any other feature, of the financial instrument.

(5)These are the “relevant assumptions”—

(a)where a payee is not within the charge to a tax under the law of a payee jurisdiction because the payee benefits from an exclusion, immunity, exemption or relief (however described) under that law, assume that the exclusion, immunity, exemption or relief does not apply;

(b)where an amount of income is not included in the ordinary income of a payee for the purposes of a tax charged under the law of a payee jurisdiction because the payment or quasi-payment is not made in connection with a business carried on by the payee in that jurisdiction, assume that the payment or quasi-payment is made in connection with such a business;

(c)where a payee is not within the charge to a tax under the law of any territory because there is no territory where the payee is—

(i)resident for the purposes of a tax charged under the law of that territory, or

(ii)within the charge to a tax under the law of that territory as a result of having a permanent establishment in that territory,

assume that the payee is a company that is resident for tax purposes, and carries on a business in connection with which the payment or quasi-payment is made, in the United Kingdom.

(6)Where the relevant assumption in subsection (5)(c) applies in relation to a payee the following provisions are to be disregarded in relation to that payee for the purposes of subsection (4)(b)—

(a)section 441 of CTA 2009 (loan relationships for unallowable purposes);

(b)section 690 of that Act (derivative contracts for unallowable purposes);

(c)Part 4 (transfer pricing);

(d)this Part;

(e)Part 10 (corporate interest restriction).

(7)Case 2 applies where there are one or more amounts of ordinary income (“under-taxed amounts”) that—

(a)arise, by reason of the payment or quasi-payment, to a payee for a permitted taxable period, and

(b)are under taxed by reason of the terms, or any other feature, of the financial instrument.

(8)Subject to subsection (9), for the purposes of subsection (7)(b) it does not matter whether an amount of ordinary income is under taxed for another reason as well as the terms, or any other feature, of the financial instrument (even if it would have been under taxed for that other reason regardless of the terms, or any other feature, of the financial instrument).

(9)For the purposes of this section disregard—

(a)any excess or part of an excess mentioned in subsection (2), and

(b)any under-taxed amount,

that arises as a result of a payee being a relevant investment fund (see section 259NA).

(10)Where case 1 applies, the amount of the hybrid or otherwise impermissible deduction/non-inclusion mismatch is equal to the excess that arises as mentioned in subsection (2)(b).

(11)Where case 2 applies, the amount of the hybrid or otherwise impermissible deduction/non-inclusion mismatch is equal to the sum of the amounts given in respect of each under-taxed amount by—

(12)Where cases 1 and 2 both apply, the amount of the hybrid or otherwise impermissible deduction/non-inclusion mismatch is the sum of the amounts given by subsections (10) and (11).

(13)See section 259CC for the meaning of “permitted taxable period”, “relevant debt relief provision” and “under taxed”.