Taxation (International and Other Provisions) Act 2010

Taking account of foreign tax underlying dividendsU.K.

57Credit in respect of dividend: taking account of underlying taxU.K.

(1)Subsections (2) and (3) apply if, as a result of provision made by the arrangements, underlying tax is to be taken into account in considering whether any and (if so) what credit is to be allowed against corporation tax, income tax or capital gains tax in respect of a dividend.

(2)The amount of underlying tax to be taken into account as a result of the provision is to be calculated—

(a)under section 58 if the dividend is one paid by a company resident outside the United Kingdom to a company resident in the United Kingdom, and

(b)under section 61 if the dividend is not one paid by a company resident outside the United Kingdom to a company resident in the United Kingdom.

(3)No underlying tax is to be taken into account as a result of the provision if, under the law of any territory outside the United Kingdom, a deduction is allowed to a resident of the territory in respect of an amount determined by reference to the dividend.

(4)See also—

(a)section 63 (underlying tax paid in the United Kingdom, or otherwise outside the non-UK territory, treated in some cases as underlying tax paid in the non-UK territory), and

(b)section 65 (underlying tax paid in respect of profits of a company which pays a dividend treated in some cases as underlying tax paid in respect of profits of company to which dividend is paid).

58Calculation if dividend paid by non-resident company to resident companyU.K.

(1)A calculation under this section (see section 57(2)(a)) is as follows—

• Step 1 Calculate the amount of the foreign tax borne on the relevant profits by the company paying the dividend.

• Step 2 Calculate how much of that amount is properly attributable to the proportion of the relevant profits represented by the dividend.

• Step 3 Calculate the amount given by—

  

  where—

  D is the amount of the dividend,

  PA is the amount given by the calculation at Step 2, and

  M is the rate of corporation tax applicable to profits of the recipient for the accounting period in which the dividend is received or, if there is more than one such rate, the average rate over the whole of that accounting period.

• Step 4 If under the law of the non-UK territory the dividend has been increased for tax purposes by an amount to be—

  (a)

  set off against the recipient's own tax under that law, or

  (b)

  paid to the recipient so far as it exceeds the recipient's own tax under that law,

  calculate the amount of the increase.

• Step 5 If the amount given by the calculation at Step 2 is less than the amount given by the calculation at Step 3, UT is the amount given by the calculation at Step 2 but reduced by any amount calculated at Step 4.

• Step 6 If the amount given by the calculation at Step 2 is equal to or more than the amount given by the calculation at Step 3, UT is the amount given by the calculation at Step 3 but reduced by any amount calculated at Step 4.

(2)In this section “UT” means the amount of underlying tax to be taken into account as a result of the provision mentioned in section 57(1).

59Meaning of “relevant profits” in section 58U.K.

(1)This section applies for the purposes of section 58.

(2)“Relevant profits”, if the dividend is within subsection (3), means the profits in respect of which the dividend is treated as paid for the purposes of section 931H of CTA 2009 (dividends derived from transactions not designed to reduce tax).

(3)A dividend is within this subsection if—

(a)it is received in an accounting period of the recipient in which the recipient is not a small company for the purposes of Part 9A of CTA 2009 (company distributions: see section 931S of that Act), and

(b)for the purposes of section 931H of that Act, it is treated as paid in respect of profits other than relevant profits (see subsection (4) of that section).

(4)“Relevant profits”, if the dividend is not within subsection (3) but is paid for a specified period, means—

(a)the distributable profits of that period, plus

(b)if the total dividend exceeds those profits, so much of the distributable profits of preceding periods as is equal to the excess.

(5)“Relevant profits”, if the dividend is not within subsection (3) and is not paid for a specified period, means—

(a)the distributable profits of the last period for which accounts of the company were made up which ended before the dividend became payable, plus

(b)if the total dividend exceeds those profits, so much of the distributable profits of preceding periods as is equal to the excess.

(6)In subsection (4)(b) or (5)(b), the reference to distributable profits of preceding periods does not include—

(a)profits previously distributed, or

(b)profits previously treated as relevant profits for the purposes of [F1section 58 or 61 of this Act], section 799 of ICTA or section 506 of the Income and Corporation Taxes Act 1970.

(7)For the purposes of subsection (4)(b) or (5)(b), the profits of the most recent preceding period are to be taken into account first, then the profits of the next most recent preceding period, and so on.

(8)In this section “distributable profits”, in relation to a company, means the profits available for distribution as shown in accounts relating to the company—

(a)drawn up in accordance with the law of the country or territory under whose law the company is incorporated or formed, and

(b)making no provision for reserves, bad debts, impairment losses or contingencies other than such as is required to be made under the law of that country or territory.

(9)The reference in subsection (6)(b) to section 799 of ICTA is without prejudice to the generality of paragraph 4(1) of Schedule 9 (references to rewritten provisions include references to superseded provisions).

60Underlying tax to be left out of account on claim to that effectU.K.

(1)Subsection (2) applies if—

(a)under the arrangements a company resident in the United Kingdom makes a claim for an allowance by way of credit in accordance with this Chapter, and

(b)the claim relates to a dividend paid to the company by a company resident outside the United Kingdom.

(2)The claim may be framed so as to exclude amounts of underlying tax specified for the purpose in the claim.

(3)Any amounts of underlying tax so excluded are to be left out of account for the purposes of section 57.

61Calculation if section 58 does not applyU.K.

A calculation under this section (see section 57(2)(b)) is as follows—

• Step 1 Calculate the amount of the foreign tax borne on the relevant profits by the body corporate paying the dividend.

• Step 2 Calculate how much of that amount is properly attributable to the proportion of the relevant profits represented by the dividend.

• Step 3 If under the law of the non-UK territory the dividend has been increased for tax purposes by an amount to be—

  • set off against the recipient's own tax under that law, or

  • paid to the recipient so far as it exceeds the recipient's own tax under that law,

  calculate the amount of the increase.

• Step 4 The amount of underlying tax to be taken into account as a result of the provision mentioned in section 57(1) is the amount given by the calculation at Step 2 but reduced by any amount calculated at Step 3.

62Meaning of “relevant profits” in section 61U.K.

(1)This section applies for the purposes of section 61.

(2)“Relevant profits”, if the dividend is paid for a specified period, means—

(a)the profits of that period, plus

(b)if the total dividend exceeds the distributable profits of that period, so much of the distributable profits of preceding periods as is equal to the excess.

(3)“Relevant profits”, if the dividend is not paid for a specified period but is paid out of specified profits, means those profits.

(4)“Relevant profits”, if the dividend is paid neither for a specified period nor out of specified profits, means—

(a)the profits of the last period for which accounts of the body corporate paying the dividend were made up which ended before the dividend became payable, plus

(b)if the total dividend exceeds the distributable profits of that period, so much of the distributable profits of preceding periods as is equal to the excess.

(5)In subsection (2)(b) or (4)(b), the reference to distributable profits of preceding periods does not include—

(a)profits previously distributed, or

(b)profits previously treated as relevant profits for the purposes of [F2section 58 or 61 of this Act], section 799 of ICTA or section 506 of the Income and Corporation Taxes Act 1970.

(6)For the purposes of subsection (2)(b) or (4)(b), the profits of the most recent preceding period are first to be taken into account, then the profits of the next most recent preceding period, and so on.

(7)In this section “distributable profits”, in relation to a period, means profits available for distribution of the period.

(8)The reference in subsection (5)(b) to section 799 of ICTA is without prejudice to the generality of paragraph 4(1) of Schedule 9 (references to rewritten provisions include references to superseded provisions).