For a subsidiary to qualify as an independent subsidiary, both of the following two conditions must first be satisfied during the period of account.
Per FA88/S86 (1)(a), the whole, or substantially the whole,
of the company's business must be carried on with persons who are
not members of the same group. Business has a very wide meaning
here and is not limited to simple trading transactions. Even if
business carried on with other members of the group is done on arms
length terms it still counts as group business. The meaning of
'substantially the whole' is deliberately not limited by a
particular percentage, so that a reasonable decision can be taken
on whether or not the condition is met, based on the ordinary
meaning of the words in the individual case. However to pass this
test we would expect at least 90 per cent of the business to be
carried on outside the group.
A subsidiary may have a subsidiary company or companies of
its own. Business between a subsidiary and its own subsidiaries
does not normally count as business carried on with other members
of the group. But it
will so count where any member of the subgroup
carries on the whole, or substantially the whole, of its business
with other members of the main group during the period of account
taken as a whole.
FA88/S86 (2) enables a subsidiary which stands at the
head of a subgroup to be an independent subsidiary, but only where
value is not being shifted between the main group and the
'independent' subgroup.
Per FA88/S86 (1)(b), there must either be no increase in
the value of the company as a result of 'intra-group transactions',
or any increase must not exceed 5 per cent of the value of the
company at the beginning of the period. If the period of account is
less than or more than a year a proportionately greater or smaller
percentage is taken.
Per FA88/S86 (3), ‘intra-group transactions' are
transactions carried out between companies in the same group which
are not on the terms that would be expected to be agreed by persons
who were acting at arms length. A payment for group relief is,
however, not to be regarded as an 'intra-group transaction'.
See
ERSM61040 for the two further
conditions that need to be satisfied after the period of
account.
