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TCGA1992/S138

HMRC will not give statutory clearance to arrangements that seek to avoid a criminal, civil or regulatory risk or liability. 听

This is because HMRC consider that the 鈥渂ona fide commercial reasons鈥� test expressly requires genuine, 鈥済ood faith鈥� commercial reasons for undertaking the exchange or scheme of reconstruction. 听

Where an applicant is aware of a specific risk or liability of this nature HMRC consider this to be material information. Failure to disclose this in a clearance application could result in the resulting notification being considered void.听 Whether a clearance given is void is ultimately a matter for the Tribunal, see CG52636.

For example 鈥� the X group has subsidiary Y that faces potential prosecution under Health and Safety legislation.听 The arrangements involve transferring the business of Y to a new company, Z, incorporated by the shareholders of X.听 X and Y will then be liquidated.听 This is potentially a scheme of reconstruction within TCGA92/S136.