Featured documents
This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
Most recent Practice notes
What is principal private residence relief? Principal private residence ( PPR) relief is a relief from capital gains tax ( CGT). It may apply to the gain arising on the disposal of a dwelling house, or land occupied and enjoyed with it, where the property is, or has at any time during ownership been, the owner’s only or main residence. The residence can be in the UK or overseas, subject to specific conditions linked to the taxpayer’s residence status. If the property has not been the only or main residence for the full period of ownership (subject to certain permitted absences), or if the owner has not been resident in the same territory as the property for part of that time, the relief will only reduce a corresponding part of the gain. The relief applies to disposals by individuals, trustees and personal...
Companies that constitute a group for capital gains purposes can move assets between themselves without incurring corporation tax on chargeable gains. Each company remains a distinct legal person for tax purposes, so, without a specific rule, an intra-group transfer of a capital asset between companies would amount to a disposal and would give rise to chargeable capital gains (or allowable losses). Transactions between connected persons (a term that covers companies within the same tax group) are ordinarily regarded as occurring otherwise than at arm’s length, with the consequence that, in the absence of the grouping rules, the consideration for the transfer would be deemed to equal the market value of the asset irrespective of any actual price paid (see Practice Note: Capital gains for connected persons). Further special provisions are also found in other branches of tax law (in...
Practice Note This Practice Note explains how to determine whether companies belong to the same group for corporation tax on chargeable gains. In substance, a corporate group often functions as a single economic enterprise. Consequently, from a tax policy standpoint, it is sensible to distinguish dealings between group entities from transactions between parties with no connection. Accordingly, groups of companies are recognised across numerous parts of the tax system, including the regime for taxing a company’s capital gains (that is, chargeable gains). For the purposes of corporation tax on chargeable gains, companies that are treated as a group are called, in this Practice Note, a capital gains group. The principal advantage of belonging to a capital gains group is that assets may pass between members without corporation tax on chargeable gains arising (see Practice Note: Capital...
This Practice Note This Practice Note outlines the key legal issues an employer should weigh up where an employee, engaged by and working for the benefit of a UK entity, performs their role remotely from outside the UK. Requests to work from home are increasing; however, asking to work remotely from a different country carries additional considerations. This Practice Note addresses some employment and tax matters that may arise from such a request, over and above any practical challenges linked to operating across multiple time zones. For employers to evaluate these points, they must be aware of any such arrangements, so the first step is to make it clear to employees that these working patterns require prior approval. Employers should consider introducing a policy that sets out when approval is needed and the process for seeking it. Various factors can influence the...
A company is liable to corporation tax on the profits arising from its trade or trades under the rules in sections 34–201 of the Corporation Tax Act 2009 (ie Part 3). It is therefore essential for any company to establish whether it is actually undertaking a trade and to determine which parts of its operations fall within that trade. A company may run more than one trade, and the profit or loss of each must be worked out separately. Where any of a company’s activities are not trading in nature, they may instead fall to be taxed under other provisions, such as corporation tax on capital gains, which follow different rules. An individual is chargeable to income tax on the profits of their trade, profession or vocation in line with the rules in sections 3–259 of the Income Tax ( Trading and Other Income) Act 2005 (ie...
The EBT as a trust An employee benefit trust ( EBT) is a type of trust. A trust is the legal arrangement created by a settlor when assets are placed under the control of a trustee for the benefit of a beneficiary, or to achieve a specified purpose. A trust (including an EBT) typically has these characteristics: the assets form a separate fund and do not belong to the trustee’s own estate legal title to the trust property is held in the name of the trustee the trustee has the power and duty, for which it is accountable, to manage, apply, or dispose of the assets in line with the trust terms and the special obligations imposed by law As a general rule, a trust (including an EBT) must have certainty of objects, and for non-charitable trusts such as an EBT, there must be someone in whose favour the court can...
A long-term incentive plan ( LTIP) An LTIP is widely used by listed companies to denote executive share arrangements where senior employees receive share-based awards that vest after at least three years. To meet institutional shareholder voting requirements where approval is needed, such awards are generally conditional on achieving stated performance targets. With particularly rigorous performance conditions, an LTIP is often labelled a performance share plan ( PSP). In the past, where a particular style of LTIP award was used, some companies called it a restricted share plan. For companies listed in the equity shares (commercial companies) category of the London Stock Exchange, the Financial Conduct Authority ( FCA) handbook provides a specific definition of long-term incentive scheme. See Specific definitions below. The term LTIP is also employed more broadly to describe any incentive arrangement lasting more than one year, including cash bonus...
The idea of ordinary share capital carries weight for UK tax purposes. This Practice Note outlines the principal tax reliefs that commonly hinge on ‘ordinary share capital’ (regardless of whether the issuer is a UK company), namely: no gain/no loss treatment on intragroup transfers corporation tax group relief substantial shareholdings exemption share for share exchanges and schemes of reconstruction business asset disposal relief (formerly entrepreneurs’ relief) and investors’ relief relief for employee share acquisitions, and enterprise investment scheme ( EIS) and seed enterprise investment scheme ( SEIS) relief This Practice Note then considers how ‘ordinary share capital’ is defined for UK tax purposes. No gain/no loss treatment on intragroup transfers Where companies are within the charge to UK corporation tax and form a 75% group, assets can pass between them without triggering tax on any profits or gains. For more...
What is the mutual agreement procedure? The mutual agreement procedure ( MAP), also referred to as the competent authority ( CA) procedure ( CAP), is an administrative route designed to settle issues that arise from: double taxation imposed on taxpayers contrary to the terms of a specific double tax treaty or convention ( DTT), and the way DTTs are applied and interpreted. Article 25 of the Organisation for Economic Co-operation and Development ( OECD) Model Tax Convention ( OECD MTC) outlines the principal rules for running the MAP between treaty partners, though countries may modify Article 25 in their bilateral DTTs. In 2017, Article 25 was extensively revised following recommendations from Action 14 (‘ Making dispute resolutions mechanisms more efficient’) of the OECD’s Base Erosion and Profit Shifting ( BEPS) project. Under the Action 14 report, countries are required, as a minimum...
The use of malus and clawback The concept that performance-based cash or share awards for executives and senior employees can be reduced (malus) or recovered (clawback) when a material adverse event occurs or later comes to light is now widely accepted and embedded in market practice. Although rooted in the financial services industry, malus and clawback are now standard elements of incentive plans operated by companies listed in the equity shares (commercial companies) category in the UK. This development flows directly from the Financial Reporting Council’s ( FRC) 2014 revisions to the UK Corporate Governance Code in response to the global financial crisis, together with the subsequent expectations of the UK’s major institutional shareholders. The Department for Business, Energy & Industrial Strategy’s ( BEIS) March 2021 consultation on modernising the UK’s audit and corporate governance regime further reinforces that deploying malus and clawback within...
Types of LTIP awards Under a long-term incentive plan ( LTIP), the forms of awards most frequently granted include the following awards: conditional share awards (which are sometimes also known as restricted stock units ( RSUs)) nil-cost options forfeitable shares, which are sometimes described as restricted stock share appreciation rights ( SARs) A standard LTIP now commonly contains both a vesting period, typically lasting three years, and an additional retention period of two years, and this Practice Note addresses the tax implications for LTIP awards that have holding periods in place. For more information on each type of award, see Practice Note: Structure of a long-term incentive plan— Types of awards......
What is a long-term incentive plan? As set out in the Practice Note: What is a long-term incentive plan?, the awards most frequently delivered under a long-term incentive plan ( LTIP) typically comprise: conditional share awards (often referred to in the US as restricted stock units ( RSUs)) nil-cost options share appreciation rights ( SARs) forfeitable shares, sometimes described as restricted stock A brief summary outline of the likely capital gains tax ( CGT) treatment on disposals of shares obtained on the vesting of each LTIP award type is set out below. For more detail and background on the different award types available under an LTIP, see Practice Note: Structure of a long-term incentive plan— Types of awards for further guidance. Please note that this Practice Note proceeds on the basis that, at acquisition of the shares or otherwise on vesting of the LTIP awards, the employee has been fully subject to...
This Practice Note: sets out the key UK tax rules that apply when a fixed charge receiver disposes of assets owned by a company, and addresses the principal questions that may arise when such steps are contemplated This Practice Note considers: the function of a fixed charge receiver matters around appointment and the receiver’s accounting periods that the company under receivership continues to bear tax liabilities withholding tax implications for the receiver whether the receiver’s fees and costs are tax-deductible VAT treatment for a company in receivership points arising where the company in receivership is non- UK tax resident, and practical considerations In this Practice Note: fixed charge receivers are referred to simply as receivers the company means the company whose charged assets are being sold the appointor denotes the creditor (or mortgagee) appointing the receiver, and it is assumed the receiver, the company and the appointor are unconnected and there is no tax avoidance...
Background— EU law in the UK Pre-exit day The European Communities Act 1972 ( ECA 1972) was enacted to implement the United Kingdom’s obligations, as a Member State, under the relevant EU treaties and to ensure adherence to EU law. Under ECA 1972, s 2(1), certain EU rights and obligations intended to have direct effect applied in the UK without the need for additional domestic legislation. This encompassed rights under the EU Treaties and EU regulations setting out detailed legal rules. Other forms of EU law took effect via UK regulations made under ECA 1972, s 2(2), or, in some circumstances, through separate Acts of Parliament. This pathway covered EU directives, which stipulate overarching aims or frameworks while leaving each Member State to make its own provision to secure the required legal outcome. In its operation within Member States, EU law is...
Withholding tax on UK source interest payments The obligation to deduct tax from UK‑source interest (ie withholding tax) is a key issue to weigh up when launching a bond in the UK. Where a deduction must be made, the impact is: at best, a cash flow timing drawback, ie the UK tax withheld can be credited against other UK or foreign tax due on the interest; and at worst, a permanent cost, ie the bondholder either has no liability, or a lower liability than the amount withheld, and cannot reclaim it. Accordingly, in both cases a bondholder would prefer to receive interest gross (ie with no deductions). Consequently, whether tax withholding will apply to a bond is a critical consideration for the issuer and for the managers or arrangers seeking subscribers. In the context of retail bonds (ie where the bond is issued to consumer...
From 1 April 2018, land transaction tax ( LTT) replaced stamp duty land tax ( SDLT) in Wales. This Practice Note outlines the principal administrative and compliance aspects of LTT, covering: filing returns and payment management and collection of LTT by the Welsh Revenue Authority ( WRA) amendment and correction of returns enquiries assessments penalties Where appropriate, distinctions between LTT and SDLT are noted. This Practice Note expands on the essentials in Practice Note: Wales: Land transaction tax ( LTT)—the basics. The legislative framework for LTT is the Land Transaction Tax and Anti-avoidance of Devolved Taxes ( Wales) Act 2017 ( LTTADT( W) A 2017). Unless stated otherwise, statutory references are to the LTTADT( W) A 2017. Administration LTT is overseen by the WRA. The WRA is a non-ministerial department of Welsh Government with its own board and staff, and its...
ARCHIVED: This Practice Note is archived and is no longer maintained. It covers the Finance Act 2018 ( FA 2018), which received Royal Assent on 15 March 2018. Kept for historical interest, it traces the Bill’s route through Parliament and summarises each measure in the Act, with relevant links. This Practice Note is divided into two parts: Progress of FA 2018 FA 2018—measure by measure For detailed tracking of the consultations referenced, see: Tax—consultation and legislation tracker. Progress of FA 2018 This section sets out how FA 2018 progressed through Parliament. 13 September 2017 — Draft legislation published ( Draft) 25 October 2017 — Consultation on draft legislation closed 22 November 2017 — Autumn Budget 28 November 2017 — First reading and approval of Budget Resolutions 1 December 2017 — Finance Bill 2018 published ( Bill as...
ARCHIVED This Practice Note has been archived and is not maintained. It covers the Finance ( No 2) Act 2017 ( F( No 2) A 2017), which obtained Royal Assent on 16 November 2017. Kept for historic interest, it traces the legislation’s journey through Parliament and provides an outline, with relevant links, of each measure in the Act. F( No 2) A 2017 was published on 8 September 2017. It includes provisions removed from the first Finance Bill 2017—published on 20 March 2017 and enacted as the Finance Act 2017 on 27 April 2017—following the announcement of the 2017 general election. For further background on F( No 2) A 2017, see News Analyses: Government withdraws majority of Finance Bill 2017, Amended provisions for second Finance Bill of 2017 and Publication of second Finance Bill 2017. There was no single, standard title for the...
This Practice Note outlines the main tax implications where a company implements a company voluntary arrangement ( CVA) under Part I of the Insolvency Act 1986 ( IA 1986) A CVA might come after a formal insolvency procedure—typically an administration and, in some cases, a liquidation—acting as a route out of that procedure, or it can proceed in parallel while the insolvency continues. For further detail on tax issues arising in an administration, see Practice Note: Key tax consequences of an administration. For guidance on insolvent liquidations, see Practice Note: Key tax consequences of an insolvent liquidation. An arrangement can alternatively be agreed on an informal basis, by contract, between the creditor and the debtor......
ARCHIVED: This Practice Note is archived and no longer maintained. This Practice Note addresses frequently asked questions on the DAC in the UK, covering its application up to 31 December 2020. From Implementation Period ( IP) completion day, the DAC no longer applies in the UK. The International Tax Compliance ( Amendment) ( No 2) ( EU Exit) Regulations 2020, SI 2020/1300, remove references to the DAC from the UK’s implementing rules for DAC 2 and CRS, alter the source of certain definitions, and preserve the effect of specified DAC dates after IP completion day. Accordingly, the end of the DAC’s application has no practical impact on the exchange of financial account information. What is the directive for administrative cooperation ( DAC)? In 2011, the European Council—comprising the heads of state or government of all EU countries, the President of the European Council, and the President of the...
Popular documents
When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
Discover more from LexisNexis
