BIM75500 - Trade losses: types of relief: carry forward of losses

ITA07/S83

Where a person (individual, partner or trustee) makes a loss in a trade, profession or vocation and relief for that loss has not been given under another taxation provision the loss can be carried forward under ITA07/S83. Such a loss can only be set off against profits arising from the same trade, profession or vocation.

Where the loss exceeds the profit (or there is no profit) the remaining loss (or the loss) can be set off against interest or dividends (including any tax credits) which would be regarded as trading receipts if they were not taxed under other provisions (ITA07/S85 (and for 2006-07 and earlier years ICTA88/S385 (4) and ICTA88/S458 (2)). See BIM40800 onwards for circumstances in which interest and dividends may be treated as trading receipts.

Such losses must be set off against the first year in which a profit arises and any balance must then be set off in the next year in which a profit arises.

No carry-forward is allowable except so far as the ownership and identity of the business during the tax years for which the allowance is claimed remain the same as during the period in which the loss was made (see Batty v Baron Schroder [1939] 23TC1, United Steel Companies Ltd v Cullington (No.2) [1940] 23TC91, Goff v Osborne & Co (Sheffield) Ltd, [1953] 34TC441 and Rolls-Royce Motors Ltd v Bamford [1976] 51TC319).

ITA07/S86

ITA07/S86 allows for the carry-forward of losses in cases where the proprietor or partners in a private business take all the shares in a company to which the business is transferred. It also applies where such a company additionally issues other shares, and where two or more private businesses are amalgamated to form a company. The shares must be taken as the sole or main consideration for the transfer of the business to the company.

Where the consideration is expressed in the vending agreement to be cash, but the whole amount is subscribed for shares in the company, the shares may, for the purposes of the relief, be regarded as the consideration.

The income against which the carry-forward is allowable includes dividends (including any tax credits), interest, remuneration or rent received from the company, see BIM40800 onwards.

The carry-forward is to be set first against any income from the company which is the subject of direct assessment on the shareholder (for example directors' fees or other remuneration).

ITA07/S86 relief is not available for a tax year unless:

the individual retained all the allocated shares and

the company carried on the transferred trade

at 5 April in that year. In practice, relief should not be refused so long as the individual keeps shares which represent more than 80% of the consideration received for the business.

ICTA88/S387

S387 has been repealed. The following applies for 2006-07 and earlier years only.

The loss to be carried forward under ICTA88/S387 (1) is the amount assessed under ICTA88/S350 in so far as tax has been paid thereon. Accordingly, relief in respect of such loss should not be given until payment of the relevant tax charged on the assessment under ICTA88/S350 has been checked.

The guidance above for ITA07/S83 losses also applies to losses carried forward under ICTA88/S387 (1).

Certain classes of payment resulting in liability under ICTA88/S350 in which the assessment is

not available for carry-forward under ICTA88/S387 (1) are set out in subsection (3):

• Any payment falling within section ICTA88/S349 (2);
• Any capital sum paid in respect of any patent rights assessed under ICTA88/S349 (1) by virtue of ICTA88/S524;
• Any payment of, or on account of, copyright royalties to which ICTA88/S536 applies, or royalties in respect of a right in a design to which ICTA88/S537B applies.

Information on ICTA/S350 is at BIM75485.