CIR regime and the regime anti-avoidance rules | KPMG | UK

M&A Matters - CIR and the regime anti-avoidance rules

CIR regime and the regime anti-avoidance rules

The RAAR provides that any ‘tax advantage’ that would arise from ‘relevant avoidance arrangements’ is to be counteracted by the making of such adjustments as are just and reasonable.

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The CIR regime contains what HMRC draft guidance describes as a regime anti-avoidance rule (RAAR) counteracting certain arrangements achieving a better result under the CIR rules than would otherwise be the case. Groups will need to consider whether the RAAR applies to any restructuring transactions that may affect the group’s overall disallowance (or reactivation) of interest under the CIR rules. The RAAR is broadly drafted and, unlike similar anti-avoidance provisions, does not contain a general exclusion for arrangements that are consistent with the principles and policy objectives underlying the CIR rules.

Overview of the RAAR

The RAAR provides that any ‘tax advantage’ that would arise from ‘relevant avoidance arrangements’ is to be counteracted by the making of such adjustments as are just and reasonable. 

Arrangements are ‘relevant avoidance arrangements’ if both:

  • The main purpose, or one of the main purposes, of the arrangements is to enable a company to obtain a tax advantage; and
  • The tax advantage is attributable (or partly attributable) to any company:

- Not having amounts disallowed under the CIR rules that would otherwise have been disallowed (or having lower amounts disallowed or having amounts disallowed in a different accounting period); or

- Reactivating previously disallowed amounts under the CIR rules that would not otherwise have been reactivated (or having greater amounts reactivated or having amounts reactivated in a different accounting period).

When assessing whether there is a tax advantage, ‘tax’ includes any amount chargeable as if it were corporation tax or treated as if it were corporation tax (e.g. controlled foreign companies (CFC) charge and bank levy) and diverted profits tax.

It should be noted that the anti-avoidance rule does not test whether there is a tax advantage solely under the CIR rules but whether there is an overall tax advantage under the taxes within its scope.

Transitional rules

The general rule is that the RAAR applies in relation to arrangements whenever entered into (i.e. including any arrangements entered into before 1 April 2017).

However, three transitional exclusions are available. 

Exclusion 1 – arrangements that accelerate deductions pre-1 April 2017

The RAAR will not apply to arrangements so far as they reduce the amount that would otherwise be disallowed under the CIR rules post-1 April 2017 via paying amounts before 1 April 2017.

HMRC draft guidance says this might involve paying interest which is deductible on a paid basis before the commencement of the CIR rules where this would otherwise be disallowed if paid post-commencement, or paying non-interest expenses, such as pension contributions, before commencement that would otherwise reduce tax-EBITDA and therefore the group’s capacity to deduct interest post-commencement of the CIR rules. 

Exclusion 2 - loans being brought into the UK 

The RAAR will not apply if the tax advantage can reasonably be regarded as arising wholly from arrangements entered into in connection with the commencement of the CIR rules that (but for the CIR rules) would have resulted in significantly more corporation tax becoming payable as a result of one or more loan relationships being brought within the charge to corporation tax.

HMRC draft guidance says this might involve a group transferring interest bearing loans from a CFC to a UK group company. 

Exclusion 3 - arrangements securing CIR reliefs

The RAAR will not apply if the tax advantage that would otherwise be obtained can reasonably be regarded as arising wholly from arrangements entered into in connection with the commencement of the CIR rules that 

  1. (are designed to secure the benefit of a relief expressly conferred by the CIR rules in a way that is wholly consistent with its policy objectives and 
  2. (ii) are effected by taking only ordinary commercial steps in accordance with a generally prevailing commercial practice.

HMRC draft guidance says this might involve a group restructuring so as to 

  1. allow the group to be able to benefit from the public infrastructure rules or 
  2. (ii) refinance debt that would not qualify as “qualifying net group-interest expense” with debt that does qualify (thereby potentially increasing the amount of interest allowable under the group ratio method), e.g. refinancing perpetual debt with debt that has a fixed term of less than 50 years.

Note that even if the RAAR does not appear to apply, other existing anti-avoidance rules may also need to be considered.

Conclusion

Given the broad nature of the RAAR, parties engaging in M&A financing transactions should give consideration to these rules.

Tax Matters Digest “devil is in the detail” series of articles

Further details of the CIR rules are provided in a series of weekly Tax Matters Digest “devil is in the detail” articles which look at aspects of the CIR rules in “bite sized chunks”. Click here to check it out. 

 

For more information please contact:

Rob Norris - Director

Mark Eaton - Director

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