Section 438A | Application of section 438: certain creditors treated as qualifying infrastructure companies

(1)This section applies where—

(a)a company (“C”), at a time in the period mentioned in subsection (1) of section 438—

(i)is a member of the worldwide group of which the qualifying infrastructure company mentioned in that subsection is a member, but

(ii)is not a UK group company; and

(b)C is a creditor in relation to an amount which—

(i)is a relevant loan relationship debit (as defined in section 383) for the debtor company, or

(ii)would be a relevant loan relationship debit if the debtor company were UK resident.

(2)For the purposes of section 438, C is treated in relation to the amount mentioned in subsection (1)(b) (the “relevant loan amount”) as a qualifying infrastructure company if—

(a)throughout the period mentioned in section 438(1), C—

(i)meets the public infrastructure income test for the accounting period (see subsections (2) to (4) of section 433) and subsection (3) of this section), and

(ii)meets the public infrastructure assets test for the accounting period (see subsections (5) to (10) of that section and subsection (4) of this section),

(but does not satisfy the conditions in subsection (1)(c) and (d) of section 433);

(b)the loan to which the relevant loan amount relates (the “relevant loan”) is fully funded by another loan (the “corresponding loan”) made to C for that purpose and on substantially the same terms as the relevant loan; and

(c)amounts arising to C in respect of the corresponding loan would, if section 438(2) applied to C, qualify as “exempt amounts” within the meaning of that subsection.

(3)For the purposes of subsection (2)(a)(i), C is also treated as meeting the public infrastructure income test for an accounting period if all, or all but an insignificant proportion, of its income for the period derives from—

(a)anything listed in any of paragraphs (a) to (c) of section 433(2),

(b)shares in, or debt issued by, a company that meets the test in section 433(2) for that period,

(c)shares in or debt issued by a company that is treated as meeting the public infrastructure income test for that period by reason of this subsection.

(4)For the purposes of subsection (2)(a)(ii), C is also treated as meeting the public infrastructure assets test for an accounting period if all, or all but an insignificant proportion, of the total value of the company's assets recognised in an appropriate balance sheet on each day in that period derives from—

(a)anything listed in any of paragraphs (a) to (e) of section 433(5),

(b)shares in, or debt issued by, a company that meets the test in section 433(5) for that period,

(c)shares in or debt issued by a company that is treated as meeting the public infrastructure assets test for that period by reason of this subsection.

(5)For the purposes of determining whether amounts arising to C would qualify as exempt amounts under section 438(2) (for the purposes of subsection (2)(c) of this section), the recourse of a creditor is treated as being limited to relevant infrastructure matters if, in the event that C fails to perform its obligations in question, the recourse of the creditor is limited to—

(a)anything listed in paragraphs (a) to (c) of section 438(4),

(b)shares in or debt issued by a company whose income and assets consist wholly of income and assets within those paragraphs,

(c)shares in or debt issued by a company whose income and assets consist wholly of income and assets within paragraphs (a) or (b) of this subsection, or

(d)shares in or debt issued by a company whose income and assets consists wholly of income and assets within paragraphs (a) to (c) of this subsection, and so on.

(6)For the purposes of subsection (5), in determining whether a company’s income and assets consists wholly of income and assets of a particular description, any source of income or any asset is ignored if, having regard to all the circumstances, it is reasonable to regard as insignificant the amount of income arising from the source, or (as the case may be) the value of the asset recognised, in the accounting period.