UK and International Tax news
Reform Of Corporation Tax Loss Relief Consultation Issued
Monday 6th June 2016
HMRC has recently issued a consultation document on the reform of rules relating to corporation tax loss relief following the Chancellor’s announcement, in the March 2016 Budget, of proposed changes to loss streaming rules and a limitation to the amount of taxable profits that can be relieved by carried forward losses.
The government has announced that companies should have the ability to carry forward losses and set those losses against the taxable profits of different activities and the taxable profits of group members. This will help to avoid relief for losses incurred from a particular source of income being stranded such that relief may be delayed or denied altogether due to a lack of profitability in that source of income.
This increased flexibility will have a significant impact on the Exchequer, both in terms of accelerating relief for companies’ carried forward losses and providing relief for losses that may otherwise have been unutilised. For this reason, the government has announced that the increased flexibility will only be available for losses incurred from 1 April 2017. Losses that arise prior to this date will remain subject to the existing restrictions over profit that they can be set against.
The current loss relief regime can mean that companies making substantial UK profits can end up not paying corporation tax for many years due to losses incurred from historic events and activities. HMRC points out that limiting the amount of profit that can be relieved with carried forward losses will help to address that, in a way which is consistent with the approaches taken in a number of other G7 countries. The restriction will not change the availability of relief for carried forward losses, but will instead affect the timing of relief. Where a company’s carried forward losses are restricted, it will be able to carry forward any unused losses and set these against profit arising in future periods.
It is proposed that the restriction will apply by reference to the profit against which carried forward losses are eligible to be set. This means that relief for carried forward trading losses arising before 1 April 2017 will be restricted to 50% of trading profit, whereas relief for carried forward trading losses arising after 1 April 2017 will effectively be restricted to 50% of profit across the group.
The government does not believe that the restriction should, in isolation, have the effect of requiring groups to pay corporation tax in years of loss. It will therefore ensure that in-year losses can be surrendered against profit exposed by the restriction in a way that avoids this outcome arising.
The government intends for the restriction not to apply to the carry back of losses, given the importance of loss carry back in providing cash flow support to businesses in periods of financial stress. This will also help to reduce the impact of the restriction where companies display short term volatility in profit.
The government has said that it also wants to ensure that the restriction only impacts companies making substantial profits. It has therefore announced that the 50% restriction will only apply where more than £5 million of carried forward losses are being used across a group of companies in a given year.
The government believes that this result can be achieved by allowing each group an annual allowance enabling up to £5 million of taxable profits to be relieved in full by carried forward losses. It is proposed that groups have full discretion over where the allowance is used within the group.
The amount of profit that banks can relieve with certain carried forward losses arising before 1 April 2015 is already restricted to 50%. This was designed to reduce the impact on corporation tax receipts of carried forward losses relating to the financial crisis and subsequent misconduct payments. The government now believes that the exceptional treatment of banks’ pre April 2015 carried forward losses should be maintained in the context of the wider changes being made to the treatment of carried forward losses. It has therefore announced that the amount of profit that banks can relieve with these losses will be restricted to 25% from 1 April 2016.
The government will consider how this exceptional restriction on banks’ historic losses is integrated with the wider loss relief regime legislation being amended as part of the consultation.
The government is now seeking views on the detailed design and implementation of the new rules, with the consultation being open until 18 August 2016 and draft legislation will be included in the 2017 Finance Bill.
If you would like more information on the condoc, please contact Keith Rushen on 0207 486 2378.
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