The clause inserts an unallowable purpose, anti-avoidance clause in the financial instrument rules and mirrors the existing rule for corporate debt purposes, the paragraph 13 rule. There is a general acceptance that that rule is unclear and untested in the courts. We propose that a statutory clearance procedure should be included in the legislation as an option to give companies certainty when entering into complicated commercial arrangements.
The unallowable purpose rule in the corporate debt legislation has been the subject of widespread criticism. Introducing a mirror image rule in the financial instruments legislation will, potentially, exacerbate rather than ease the situation. The Institute of Directors has made the point that
''This new rule amounts to a general anti-avoidance rule within its limited field. A general anti-avoidance rule ranging over the whole of income tax and corporation tax was carefully considered in 1998. It was decided not to introduce such a rule, for perfectly good reasons. We do not believe that comparable rules should be introduced in limited fields: they generate uncertainty and allow the Revenue to block new tax planning measures retrospectively.''
Ideally, the whole clause should be amended to target the tax avoidance schemes that the Treasury regards as unacceptable. Given that the Treasury does not publish details of such schemes, it is not possible to suggest an amendment that covers that. We therefore suggest that, at the very least, the Treasury should offer advance clearance of the transaction to give certainty to business.
When we suggested that a statutory clearance procedure be included in the substantial shareholdings legislation, the Minister told us that it would be inappropriate for the Inland Revenue to provide a
statutory clearance mechanism due to cost and that businesses would not want it if there was one. That was said to be because the rules on substantial shareholdings had been subject to extensive consultation and we were told that the Inland Revenue guidance notes would clarify any uncertainties.
Throughout the consultation process on substantial shareholdings, there were repeated calls for advance clearance procedures, and the same point applies to this clause. Taking first the cost argument and the suggestion that many clearances are obtained simply because the facility exists rather than because there is serious uncertainty, we do not think that that would be the case with the clearance arrangements that we propose. The amendment asks specifically for confirmation that the contract does not have an unallowable purpose--that is, that it meets the requirements of the legislation.
The clearance procedures contained in section 707 of the Income and Corporation Taxes Act 1988 and section 138 of the Taxation on Chargeable Gains Act 1992, the two most widely used Inland Revenue clearances, give the taxpayer certainty on whether a transaction is being carried out for what the Treasury consider to be bona fide commercial reasons, not whether the transaction meets the requirements of clearly worded and tested legislation. Clearly, there is a difference between a clearance that comments on the motivation for the transaction as a whole and one that gives certainty on the imposition of inherently ambiguous and untested legislation. If existing clearances are obtained unnecessarily, perhaps the Treasury should consider the problems with them, rather than dismissing out of hand the need for new clearance procedures in other parts of the tax law.
The Minister also stated that one of the reasons for excessive costs is that the position might change and the facts might be different when the transaction takes place. However, one of the conditions of the clearance is that the facts are unchanged. If they are not, taxpayers lose their certainty. That is not in the interest of taxpayers, and it is difficult to imagine why a taxpayer who went to the effort of obtaining a clearance would choose to change the facts. If that were a real concern, an additional condition could be included in the clearance procedure that the onus is on the taxpayer to notify the Treasury about any changes in facts or circumstances.
Finally, there is the argument that the legislation has been widely consulted on. I draw the Committee's attention to the response of the Chartered Institute of Taxation, which was submitted to the Inland Revenue last October:
''The total disregard of the unanimous opposition to extension of Sch 9 para 13 FA 1996 is regrettable. It is no doubt correct that most of the objections were based on dissatisfaction with para 13 itself. This is because these objections are well-founded. The provision is so obscurely drafted as to be unpredictable in its application. A retrospective application of the provision back to the beginning of the accounting period containing 26 July 2001 is unreasonable. Some transactions would not have been entered into with such legislation in place, not because they were tax avoidance transactions in any reasonable sense of the word, but
because they might have come within some interpretations of the section because a reduction in tax was a consequence of real business expenditure. At the very least the section should not affect any losses or expenses arising before 26 July 2001. Further we consider that it will be essential for the Inland Revenue to be in a position to offer advance transaction guidance to taxpayers as is proposed in the consultative document.''
That is, manifestly, the purpose of our amendment.
Given the above comments, it is clear that just because there is a consultation process, it neither means that the resulting legislation will be perfect nor that the Treasury will actually listen to all the consultation responses. The Minister said that there were informal methods of obtaining guidance. That is agreed and accepted, but how often a taxpayer would be prepared to bring his tax inspector into discussions when he is considering entering into a complicated commercial arrangement on an informal basis is debatable for obvious reasons. Surely, a statutory clearance procedure would help the Treasury help the Revenue, because it would have the full facts in advance, and it would help businesses and taxpayers by providing certainty.