The Loan Relationships and Derivative Contracts (Disregard and Bringing into Account of Profits and Losses) Regulations 2004

• (5) Where paragraph (4) applies, the amount of loss to be brought into account is to be apportioned between each of the contracts on a just and reasonable basis.

• (6) For the purposes of this regulation, the termination of a derivative contract shall be regarded as having occurred on the earlier of—

• (a) the day on which the contract is terminated, or

• (b) the last day of the first accounting period which ends on or after 10th March 2009.

• (7) The amount to be brought into account for the purposes of section 598(1)(c) of the Corporation Tax Act 2009 is nil in a case where—

• (a) no exchange loss arises to the company on the termination of the derivative contract;

• (b) there is more than one derivative contract to which regulation 7A applies in relation to the same hedged item and no aggregate net exchange loss arises to the company on the termination of those contracts; or

• (c) there is more than one derivative contract to which regulation 7A applies in relation to the same hedged item and no aggregate net exchange loss would have arisen to the company in relation to those contracts had an accounting period ended on 9th March 2009.

Application of regulations 7, 8 and 9 in relation to derivative contracts where fair value accounting applies

Election to apply regulations 7, 8 or 9

6A

• (1) An election for the purposes of regulation 6(1)(a) must be made by a company by notice in writing to an officer of Revenue and Customs and applies regulations 7, 8 and 9 unless the notice states which of those regulations apply to the company’s derivative contracts.

• (2) The election has effect—

• (a) in the case of a new adopter where the election is made on or before the later of the dates set out in paragraph (3), in relation to derivative contracts held in the first relevant period and any subsequent period, and

• (b) in any other case, in relation to derivative contracts entered into on or after a date specified in the election which must be later than the date the election is made, and in the case of a new adopter cannot be before two years after the end of the first relevant period.

• (3) The dates referred to in paragraph (2)(a) are—

• (a) the date six months after the start of the first relevant period,

• (b) the date six months after the date the company first enters into a relevant derivative contract which the company measures at fair value, and

• (c) in the case of a company which is not a qualifying company for the purposes of Schedule 46 to the Finance Act 2009, the date 12 months after the end of the first relevant period.

• (4) An election may be amended or revoked by notice in writing to an officer of Revenue and Customs—

• (a) in the case of an election made by a new adopter within paragraph (2)(a), before the later of the applicable dates set out in paragraph (3), or

• (b) either —

• (i) before the election has effect, or

• (ii) after the election has effect, in relation to derivative contracts entered into on or after a date specified in the notice which must be later than the date the notice is given, and in the case of a new adopter cannot be before two years after the end of the first relevant period.

• (5) For the purposes of this regulation—

• (a) a “new adopter” is a company which measures a relevant derivative contract at fair value for the first time on or after 1st January 2015,

• (b) “the first relevant period” is the first accounting period in which a company measures a relevant derivative contract at fair value (but see paragraph (6)),

• (c) a “relevant derivative contract” is a derivative contract which satisfies the conditions in regulation 7(1)(a), 8(1)(a) or 9(1).

• (6) For the purposes of the definition of “the first relevant period” an accounting period of a company is to be ignored if—

• (a) the accounting period begins solely as a result of a disposal of an asset by the company, and

• (b) any gain accruing to the company on the disposal would be chargeable to corporation tax as a result of section 2B(4) of the Taxation of Chargeable Gains Act 1992.

Effect of elections on transfers within groups

6B

• (1) This regulation applies if—

• (a) one company replaces another as party to a derivative contract in relation to which regulation 7 or 8 applies, in circumstances in which section 625 of CTA 2009 applies or would apply but for section 628 of that Act,

• (b) the transferee (within the meaning of section 625 of CTA 2009) meets the conditions in regulation 7(1)(a)(i) and (ii) or 8(1)(a)(i) and (ii), as the case may be, in relation to the contract, and

• (c) the hedged item in relation to the derivative contract remains the same before and after the change of party.

• (2) Where this regulation applies—

• (a) section 628 applies (and accordingly section 625 does not apply),

• (b) regulation 7 or 8, as the case may be, applies in respect of the contract in relation to the transferee, and

• (c) regulation 10(9) applies.

Fair value profits or losses arising from derivative contracts which are currency contracts

Exchange gains or losses arising from derivative contracts hedging anticipated or future proceeds from certain issues of shares

Profits or losses arising from derivative contracts which are commodity contracts or debt contracts

Profits or losses arising from derivative contracts which are interest rate contracts

Profits or losses arising from designated cash flow hedges

Bringing fair value profits or losses into account on currency and commodity contracts

Bringing exchange gains into account on contracts to which regulation 7A applies

Profits and losses arising from loan relationships with embedded derivatives

Loan relationships as permanent as equity

12A

• (1) The amounts described in paragraph (3) are not brought into account for the purposes of Part 5 of the Corporation Tax Act 2009 in relation an asset representing a loan relationship of a company which is denominated in a currency which is not, or was not, the company’s functional currency, if there is a relevant change of accounting policy.

• (2) A relevant change of accounting policy is a change of accounting policy in drawing up a company’s accounts from one period of account to the next where in accordance with generally accepted accounting practice—

• (a) in the earlier period the loan relationship is treated (in accordance with SSAP 20) as permanent as equity and either—

• (i) the loan relationship was brought into account at an historic rate, or

• (ii) debits and credits in relation to the loan relationship were not brought into account by virtue of section 328(3) of the Corporation Tax Act 2009, and

• (b) in the later period the loan relationship was brought into account at a spot rate of exchange.

• (3) The amounts are—

• (a) debits and credits representing the difference between the carrying value of the loan relationship recognised for accounting purposes at the end of the earlier period and the value recognised at the beginning of the later period to the extent the debits or credits are attributable to the different rates of exchange, and

• (b) debits and credits representing exchange gains and losses arising in the later period and subsequent accounting periods in relation to the loan relationship.

• (4) But an amount is not within paragraph (3)(b) to the extent that in any period —

• (a) the loan relationship is a hedged item under a hedging relationship where the hedging instrument is a liability representing a loan relationship of the company or an obligation of the company under a derivative contract to pay in exchange for one currency an amount in a second currency, or

• (b) regulation 3(5) applies in relation to the loan relationship.

• (5) For the purposes of this regulation—

• (a) where there is a change of accounting policy in drawing up a company’s accounts from one period of account to the next, the “earlier period” is the first of those periods of account and the “later period” is the next period;

• (b) “functional currency” means the currency of the primary economic environment in which a company operates;

• (c) “historic rate” and “as permanent as equity” have the same meaning as for accounting purposes;

• (d) “SSAP 20” means Statement of Standard Accounting Practice No.20 on Foreign Currency Translation, issued by the Accounting Standards Board on 1st April 1983.

Transitional provision: exchange losses arising from contracts to which regulation 7A applies

Net investment hedge of foreign operations

5A

• (1) For the purposes of sections 328(4) and 606(4) of CTA 2009 there is prescribed an exchange gain or loss arising to a company in an accounting period in relation to a liability representing a loan relationship or derivative contract of the company where—

• (a) the loan relationship or derivative contract is a designated hedge of a net investment in a foreign operation of the company, and

• (b) amounts representing exchange gains or losses in respect of the loan relationship or derivative contract have, in accordance with generally accepted accounting practice, been recognised in the company’s accounts as items of other comprehensive income.

• (2) In determining what amounts fall within paragraph (1)(b) at any time in an accounting period, it is to be assumed that the accounting policy applied in drawing up the company’s accounts for the period was also applied in previous accounting periods.

• (3) But if the company’s accounts for the period are, in accordance with generally accepted accounting practice, drawn up on an assumption as to the accounting policy in previous accounting periods which differs from that mentioned in paragraph (2), that different assumption applies in determining what amounts fall within paragraph (1)(b) at the time in question.

Application of regulations 7, 8 and 9 in relation to derivative contracts where fair value accounting applies

Election to apply regulations 7, 8 or 9

Effect of elections on group member replacing another as party to derivative contract: regulations 7 and 8

Effect of elections on transfers within groups: regulation 9

6C

• (1) This regulation applies if—

• (a) one company replaces another as party to a derivative contract in relation to which regulation 9 applies, in circumstances in which section 625 of CTA 2009 applies or would apply but for section 628 of that Act,

• (b) the transferee (within the meaning of section 625 of CTA 2009) meets the conditions in regulation 9(1)(a) and (b) in relation to the contract, and

• (c) the hedged item in relation to the derivative contract is the same before and after the change of party.

• (2) Where this regulation applies—

• (a) section 628 does not apply (and accordingly section 625 applies),

• (b) regulation 9 applies for the purposes of determining the carrying value of the contract for the purposes of section 702 of CTA 2009 as that regulation applies for the purposes of determining the debits and credits to be brought into account under Part 7 of that Act, and

• (c) regulation 9 applies in respect of the contract in relation to the transferee.

Transfers within groups where no election under regulation 6A

6D

• (1) This regulation applies if—

• (a) one company replaces another as party to a derivative contract in relation to which no election under regulation 6A has effect in circumstances in which section 625 of CTA 2009 applies or would apply but for section 628 of that Act,

• (b) the transferee (within the meaning of section 625 of CTA 2009) meets the conditions in regulation 7(1)(a)(i) and (ii), 8(1)(a)(i) and (ii) or 9(1)(a) and (b), as the case may be, in relation to the contract, and

• (c) the hedged item in relation to the derivative contract is the same before and after the change of party.

• (2) Where this regulation applies, any election made by the transferee under regulation 6A has no effect in relation to the contract.

Fair value profits or losses arising from derivative contracts which are currency contracts

Exchange gains or losses arising from derivative contracts hedging anticipated or future proceeds from certain issues of shares

Profits or losses arising from designated cash flow hedges

Bringing fair value profits or losses into account on currency and commodity contracts

Bringing exchange gains into account on contracts to which regulation 7A applies

Profits and losses arising from loan relationships with embedded derivatives

Loan relationships as permanent as equity

Transitional provision: exchange losses arising from contracts to which regulation 7A applies

Derivatives hedging acquisitions and disposals of shareholdings

5ZA

• (1) For the purposes of sections 598(1)(a) and 606(4) of CTA 2009, any relevant amount arising to a company in relation to a derivative contract is an excluded amount in an accounting period if and to the extent that—

• (a) the underlying subject matter of the contract includes currency, and

• (b) there is a relevant hedging relationship between the derivative contract (or part of the derivative contract) and a forecast transaction or firm commitment (“the hedged item”) relating to the anticipated future acquisition or disposal of a relevant shareholding (“the anticipated transaction”).

• (2) There is a relevant hedging relationship if, and to the extent that—

• (a) the contract (or part of the contract) is intended to hedge the economic risk to the company in relation to—

• (i) the anticipated acquisition cost, together with any incidental costs of the acquisition, of the anticipated transaction,

• (ii) the disposal proceeds of, and any relevant dividend in relation to the relevant shareholding paid as part of, the anticipated transaction, or

• (iii) where paragraph (3) applies, the subscription of shares in, or entering into a creditor relationship with, another company for the purpose of financing the anticipated acquisition cost, together with any incidental costs of the acquisition, of the anticipated transaction, and

• (b) the economic risk is attributable to fluctuations in exchange rates between the currency in which the forecast transaction or firm commitment is denominated and the company’s relevant currency or the currency in which the debt or equity financing relating to the anticipated transaction is denominated.

• (3) This paragraph applies where the company entering into the hedging relationship has a substantial shareholding in the company making the anticipated acquisition or will have a substantial shareholding in that company before the anticipated acquisition.

• (4) In paragraph (1)—

• (a) “relevant amount” means—

• (i) where the derivative contract is an option or a deal contingent forward contract, any profit or loss arising to the company in relation to the derivative contract, and

• (ii) in any other case, any exchange gain or loss arising to the company in relation to the derivative contract;

• (b) “relevant shareholding” means—

• (i) except where paragraph (ii) applies, a shareholding in another company which is, at the date the derivative contract is entered into, a substantial shareholding, and

• (ii) where the company entering into the relevant hedging relationship is a qualifying asset holding company, a holding of qualifying shares within paragraph 53 of Schedule 2 to the Finance Act 2022.

• (5) In paragraph (2)(a)(ii), a dividend is a “relevant dividend” if it is exempt from corporation tax under Part 9A of CTA 2009 or would be exempt apart from an election under section 931R of CTA 2009.

• (6) If there is a hedging relationship between part of the derivative contract and the hedged item, the proportion of the relevant amount in relation to the contract that is an excluded amount must be determined on a just and reasonable basis having regard to the proportion of the contract which is in the relevant hedging relationship.

• (7) This regulation does not apply—

• (a) to a derivative contract which is entered into with a person (“A”) to whom the company is connected unless—

• (i) a person who is connected to the company enters into a derivative contract with a person who is not connected with the company, and

• (ii) that contract confers rights or imposes liabilities which are equivalent to those of A under the contract which A entered with the company,

• (b) to a derivative contract that meets the accounting condition in section 579(1)(b) of CTA 2009,

• (c) where the anticipated transaction is between connected companies, or

• (d) where the company enters into a hedging relationship as part of a trade that consists of or includes dealing in shares or entering into creditor relationships.

• (8) Section 466 of CTA 2009 (companies connected for an accounting period) applies for the purposes of paragraph (7)(c).

• (9) In this regulation—

• “creditor relationship” has the same meaning as in section 302(5) of CTA 2009;

• “deal contingent forward contract” means a derivative contract which is contingent on completion of the anticipated transaction;

• “incidental costs” in relation to an acquisition mean incidental costs allowable under section 38(2) of TCGA 1992;

• “qualifying asset holding company” is defined in section 14 of, and Schedule 2 to, the Finance Act 2022;

• “relevant currency” has the same meaning as in section 9C(2) and (3) of CTA 2010;

• “substantial shareholding” has the same meaning as in paragraph 8 of Schedule 7AC to TCGA 1992, but for the purposes of paragraph (3) paragraph 8(1) and (1)(a) of Schedule 7AC are to be read as if after “it”, in the first two places it appears, there were inserted “directly or indirectly” in both places.

Net investment hedge of foreign operations

Application of regulations 7, 8 and 9 in relation to derivative contracts where fair value accounting applies

Election to apply regulations 7, 8 or 9

Effect of elections on group member replacing another as party to derivative contract: regulations 7 and 8

Effect of elections on transfers within groups: regulation 9

Transfers within groups where no election under regulation 6A

Exchange gains or losses arising from derivative contracts hedging anticipated or future proceeds from certain issues of shares

Profits or losses arising from derivative contracts which are interest rate contracts

Profits or losses arising from designated cash flow hedges

Bringing fair value profits or losses into account on currency and commodity contracts

Bringing exchange gains into account on contracts to which regulation 7A applies

Profits and losses arising from loan relationships with embedded derivatives

Loan relationships as permanent as equity

Transitional provision: exchange losses arising from contracts to which regulation 7A applies