The draft UK Finance Bill clauses contain some, but not all, of the provisions to implement the new restrictions on deductions for financing costs which represent the UK’s response to Action 4 of the OECD BEPS Project. For example, much of the detail for the new group ratio rule - which will operate as an alternative to the fixed ratio rule capping finance deductions to 30% of UK taxable EBITDA – is missing. You will also search high and low - but not find – any provisions setting out how the new rules will interact with the UK’s CFC regime.
We are promised more draft clauses to complete the job before the new rules take effect on 1 April 2017.
On the CFC point, the likely answer is to be found in HMRC’s response to the May 2016 consultation, which was published in December. The response document suggests that the new rules (when we see them) will not include the earnings, interest receipts and finance expense that form part of the chargeable profits of a CFC in the calculations of interest expense and UK taxable EBITDA of the UK parent group for the purposes of the interest barrier rules (although CFC chargeable profits will be included in the calculations of group EBITDA for the purpose of the group ratio rule).
The justification given in the consultation and the response document is that the CFC charge is an anti-avoidance rule and so there is no need to make an adjustment. That approach seems a little counter-intuitive. After all, CFC chargeable profits are subject to UK tax (albeit not UK corporation tax) and so you might expect items that are reflected in the chargeable profits of CFCs to appear. Furthermore, this approach is contrary to the recommended approach set out in the OECD BEPS Action 4 Report (paragraphs 202- 204, if you’re looking).
I’ve commented previously on the UK’s implementation of the Action 4 Report (and others) going further than is strictly required by either the Report itself or the equivalent provisions in the EU Anti-Tax Avoidance Directive. Here’s another (perhaps minor) example of UK gold-plating. There’s not much sign yet of the UK tailoring its tax system for a post-Brexit world.