Paragraph 2 Transfer pricing notice where participation condition not otherwise met

After section 148 insert—

“Participation condition treated as met: transfer pricing notice

148A

(1)

Subsection (3) applies where—

(a)

the basic pre-condition would be met, if the participation condition in section 148 were met,

(b)

as a result of the application of sections 157 to 161, the participation condition is not met, and

(c)

either (ignoring those sections, which give particular meanings to the following words for the purposes of section 148)—

(i)

one of the affected persons was, at the time of the making or imposition of the actual provision, directly or indirectly participating in the management, control or capital of the other, or

(ii)

the same person or persons was or were, at that time, directly or indirectly participating in the management, control or capital of each of the affected persons.

(2)

Whether a person was directly or indirectly participating in the management, control or capital of another person is, for the purposes of subsection (1)(c), to be determined having regard to all of the circumstances.

(3)

The Commissioners for His Majesty's Revenue and Customs may give the potentially advantaged person a notice under this section.

(4)

The effect of the notice is that the participation condition is to be treated as met for the purposes of applying this Part in relation to the chargeable period in which it is given and subsequent chargeable periods.

(5)

Where the Commissioners consider that a particular case is analogous to a case that would meet the participation condition only as a result of section 161 (actual provision relates, to any extent, to financing arrangements)—

(a)

the Commissioners must state that in the notice, and

(b)

subsections (1)(d), (2)(b), (3), (4)(b) and (5) of section 147 have effect in relation to that case as if reference to “the actual provision” were to the actual provision so far as relating to the financing arrangements concerned.

(6)

A notice under subsection (3) is referred to in Chapter 3 as a transfer pricing notice.

(7)

Sections 169 to 171 in that Chapter make general provision about the giving of, and effect of, transfer pricing notices.

(8)

But neither section 169(3) (no transfer pricing notice before notice of enquiry given) nor section 171 (tax returns where transfer pricing notice given) applies to a transfer pricing notice under this section.”

In section 157 (direct participation), in subsection (1)(a), after “Part” insert “(other than for the purposes of section 148A(1)(c))”.

In section 164(1)(a) (Part to be interpreted in accordance with OECD principles), after “148” insert “, 148A”.

In section 170 (appeals against transfer pricing notices)—