BIM56015 - Film and audio products: introduction: history and purpose of relief
Expenditure on the production or acquisition of an original
master version (that is a master negative, master tape or master
disc) of a film or audio product is generally capital expenditure
on the provision of an item of plant. In the absence of the special
rules for relieving expenditure on the production or acquisition of
films such expenditure would qualify for relief under the capital
allowances code. The exception to this treatment is where the asset
is produced or acquired as an item of trading stock.
In 1982 plant and machinery was subject to a 100% first year
allowance. So all expenditure on the master versions of films and
audio products could be written off immediately, which gave rise to
substantial tax avoidance. To prevent this legislation was
introduced in 1982 that deems the capital expenditure on the
production or acquisition of the original master version of a film
or audio product to be revenue expenditure, to be written off over
the lifetime of the film by matching this expenditure against
income from the film. As a corollary, any sum received from the
sale or other exploitation of the master version is deemed to be an
income receipt. To prevent a detrimental effect on the British film
industry, transitional provisions, subsequently extended, were
enacted to allow British films to remain subject to capital
allowances and thereby to continue to benefit from the first year
allowance, although producers could elect for the revenue matching
treatment if they wished.
However, by 1992 first year allowance for plant had
disappeared and capital allowance treatment on the reducing balance
basis was of little benefit to British film producers. Therefore, a
new relief was introduced to ease the cash flow difficulties often
faced by British film producers. This relief treated expenditure on
the production or acquisition of British films as revenue
expenditure but allowed that expenditure to be written off over
three years rather than matched against income from the film
(F2A92/S42), although producers could opt instead for capital
allowance treatment if they wished (F2A92/S40D). F2A92 also
introduced legislation to give immediate relief for film
development costs (preliminary expenditure on a film –
F2A92/S41).
In 1996 the Advisory Committee on Film Finance was
established under the chairmanship of Sir Peter Middleton. The
Committee recommended that a move to an immediate 100% write-off of
production and acquisition costs would have a beneficial impact on
investment in the film industry, and legislation to do this was
introduced in 1997 (F2A97/S48). This applied to qualifying films
with production expenditure of no more than £15million. This
relief was introduced for an initial period of three years (in
order to kick start investment) but has subsequently been extended
for films on which principal photography starts before 1 April
2006.
The purpose of these reliefs is to encourage investment in
qualifying British films with the aim of building a profitable and
self sustaining industry. While the reliefs have contributed to a
significant increase in the number of British films since 1997, the
accelerated relief of expenditure is rarely accessed directly by
the producer as the producer has no immediate income to set the
relief against. Instead, the reliefs are usually accessed through
third party financiers (banks or partnerships of wealthy
individuals) using tax deferral arrangements involving sale and
lease back or production and licence schemes. These schemes allow
financiers to use the reliefs to shelter other sources of income
from tax while deferring taxable income from the film, thus
creating a tax advantage. Unfortunately, this has been accompanied
by a considerable amount of tax avoidance, where the reliefs have
been used in ways that were not intended.
Since 1997 a number of new measures have been introduced to
tackle tax avoidance using the film reliefs. The main measures are
listed below.
FA00 clarified that relief could only be obtained
on the acquisition of the original master version of a film, and
prevented relief for acquisition of films made before 1992.
FA02
- prevented relief for qualifying British films being claimed on TV programmes,
- limited total relief under F2A97/S48 (films costing less than £15m) to production expenditure paid or payable within 4 months of completion of a film,
- prevented relief for multiple acquisitions on films costing less than £15m.
FA04
- prevented individuals who had used the film reliefs to obtain a tax deferral from turning this into an outright tax gain (‘exit charge’),
- prevented non-active partners in film partnerships which do not use the reliefs for qualifying films from obtaining a tax deferral,
- introduced new rules for partnerships preventing abuse of loss relief by non-active partners (the legislation is not specific to film partnerships but most of the abuse related to films).
FA05
- prevented groups of companies who had used the film reliefs to obtain a tax deferral from turning this into an outright tax gain (‘exit charge’),
- prevented relief under F2A92/S42 (Section 42) or F2A97/S48 (Section 48) being obtained more than once on any qualifying film (‘double dipping’),
- restricted any relief under Section 42 to the total production expenditure on a film, and aligned the rules on when expenditure is incurred with those in Section 48,
- clawed back relief under Section 42 and Section 48 for schemes seeking to defer tax for more than 15 years,
- excluded ‘risk free’ capital contributions to partnerships by individuals when computing the film exit charge or loss relief (the latter is not film specific).
