GREIT07020 - Breaches of conditions: Company Condition 4 ('not close'): actions of others

A company can become close as a result of the action of its shareholders. Where this is a consequence of a take-over bid, special rules apply (see GREIT07015). Note that during the course of a take-over, it is likely that the board of the target will at some stage recommend shareholders accept the offer. Although this recommendation is the action of the company, the event that triggers the breach of Company Conditions 3 and 4 is the action of the company making the bid to take over the UK-REIT, and the take-over and action of others rules would apply to decide if or when the company or group ceased to be a UK-REIT.

A company can also become close when one shareholder increases their holding so that they and four others control the company, or where two previously unconnected participants become connected and attribution rules result in control by five or fewer. The company would therefore fail Company Condition 4 at the date it becomes ‘close’, and the regime would cease to apply with effect from the end of the previous accounting period.

Note that ‘close’ is more strictly defined for the purposes of UK-REITS than it is in general tax legislation– see GREIT02010.

If the company does become close as a result of the action of others, then the regime can continue to apply to the company provided it is once again not close by the end of the next but one accounting period (regulation 3 SI 2006/2864).

Breaches of Company Condition 4 as a result of the action (other than take-over) of others do count towards the number of times conditions can be breached before being thrown out of the regime (regulation 8 SI 2006/2864).

Example

C is a UK-REIT and makes up its accounts to 31 December. Six shareholders S1 to S6 each own 9% of the ordinary share capital (OSC) of C. None of the other shareholders owns more than 4%. S2 is taken over by S1 (a listed company) on 30 June 2008. On that date, C becomes close since S1, S3, S4, S5 and S6 together own 54% of the OSC (S2’s holding of 9% of the OSC is attributed to S1 since it controls S2). Company Condition 4 is breached on 30 June 2008.

On 1 December 2009, S2 sells its entire holding of C shares. The breach is therefore remedied in time, and C remains in the regime throughout.

If S2 delays selling its shares until 1 February 2010, the breach is not remedied in time and the regime ceases to apply to C on 31 December 2007.