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Postal Services Bill


Postal Services Bill
Schedule 2 — Taxation provisions relating to re-structuring etc

64

 

(b)   

that company is to be treated as if it were a member of the new group

immediately before the disposal or the making of the agreement

mentioned in sub-paragraph (1)(c).

      (3)  

“Relevant assets or chargeable interests” means assets or chargeable

interests in relation to which, but for paragraph 1(3), the degrouping

5

provision in question would have applied by reason of the disposal or

agreement mentioned in sub-paragraph (1)(a).

      (4)  

In this paragraph—

(a)   

references to a group have the same meaning as in the degrouping

provision in question, and

10

(b)   

references to a new group are to a group other than a group of which

the subsidiary was a member immediately before the making of a

disposal or an agreement in relation to which paragraph 1(3)

applied.

Transfers of property, rights and liabilities by transfer schemes

15

3          

In paragraphs 4 to 6—

a “relevant transfer” means a transfer of any property, rights or

liabilities by or under a transfer scheme under section 8, and

“transferor” and “transferee” have the same meaning as in Schedule 1.

4          

For the purposes of the Taxation of Chargeable Gains Act 1992 a disposal

20

constituted by a relevant transfer is to be treated in relation to the transferor

and transferee as made for a consideration such that no gain or loss accrues

to the transferor.

5          

For the purposes of Chapter 4 of Part 5 of the Corporation Tax Act 2009 (loan

relationships: continuity of treatment on transfers within groups or on

25

reorganisations) the transferor and transferee are to be treated in relation to

a relevant transfer as if, for the purposes of the transfer, they were members

of the same group.

6     (1)  

For the purposes of Part 8 of the Corporation Tax Act 2009 (intangible fixed

assets) a relevant transfer of a chargeable intangible asset is to be treated as

30

tax-neutral.

      (2)  

Part 4 of the Taxation (International and Other Provisions) Act 2010 (transfer

pricing) does not apply in relation to a transfer to which sub-paragraph (1)

applies.

      (3)  

For the purposes of section 882 of the Corporation Tax Act 2009 (application

35

of Part 8 to assets created or acquired on or after 1 April 2002) assets acquired

by a transferee on a relevant transfer are to be treated as if they were

acquired from a person who at the time of the acquisition was a related

party.

Transfers of securities of original holding company or its subsidiaries

40

7     (1)  

This paragraph applies where—

(a)   

there is a disposal of securities of the original holding company or

any of its subsidiaries, and

(b)   

immediately before the disposal, the original holding company or (as

the case may be) the subsidiary was a 51% subsidiary of the Crown.

45

 
 

Postal Services Bill
Schedule 2 — Taxation provisions relating to re-structuring etc

65

 

      (2)  

The degrouping provisions are not to apply by reason of the disposal or any

agreement to make the disposal (if they otherwise would).

      (3)  

For the purposes of this paragraph “51% subsidiary” has the same meaning

as it has for the purposes of the Corporation Tax Acts (see Chapter 3 of Part

24 of the Corporation Tax Act 2010), but—

5

(a)   

the Crown is to be treated as a body corporate, and

(b)   

for the purpose of determining beneficial ownership the making of

an agreement to make the disposal is to be ignored.

8     (1)  

This paragraph applies where—

(a)   

paragraph 7 has applied at any time in relation to a disposal or an

10

agreement to make a disposal,

(b)   

there is a subsequent disposal of securities of the original holding

company or any of its subsidiaries in relation to which paragraph 7

does not apply, and

(c)   

immediately before the subsequent disposal or the making of an

15

agreement to make it, the original holding company or (as the case

may be) the subsidiary was a member of a new group.

      (2)  

For the purposes of the application of a degrouping provision in the case of

that disposal or agreement—

(a)   

the company from which the original holding company or (as the

20

case may be) the subsidiary acquired relevant assets or chargeable

interests is to be treated as if it had been a member of the new group

at the time the relevant assets or chargeable interests were acquired,

and

(b)   

that company is to be treated as if it were a member of the new group

25

immediately before the disposal or the making of the agreement

mentioned in sub-paragraph (1)(c).

      (3)  

“Relevant assets or chargeable interests” means assets or chargeable

interests in relation to which, but for paragraph 7, the degrouping provision

in question would have applied by reason of the disposal or agreement

30

mentioned in sub-paragraph (1)(a).

      (4)  

In this paragraph—

(a)   

references to a group have the same meaning as in the degrouping

provision in question, and

(b)   

references to a new group are to a group other than a group of which

35

the original holding company or (as the case may be) the subsidiary

was a member immediately before the making of a disposal or an

agreement in relation to which paragraph 7 applied.

 
 

Postal Services Bill
Schedule 3 — Further provision about access conditions
Part 1 — Provision that may be made by access conditions

66

 

Schedule 3

Sections 37 and 48

 

Further provision about access conditions

Part 1

Provision that may be made by access conditions

Introduction

5

1          

Access conditions imposed on a person may include provision of the kind

mentioned in the following provisions of this Part of this Schedule.

Terms of access

2          

An access condition imposed on a person may include provision—

(a)   

requiring the terms and conditions on which the person is willing to

10

offer access to include such terms and conditions as may be specified

or described in the condition, or

(b)   

requiring the person to make such modifications as OFCOM may

direct of any offer which sets out the terms and conditions on which

the person is willing to offer access.

15

Price controls etc.

3     (1)  

An access condition imposed on a person may include provision imposing

on the person—

(a)   

such price controls as OFCOM may direct in relation to matters

connected with the giving of access (“access matters”),

20

(b)   

rules made by OFCOM in relation to access matters about the

identification of costs and cost orientation,

(c)   

rules made by OFCOM for those purposes about the use of cost

accounting systems,

(d)   

obligations to have compliance with those systems audited annually

25

by a qualified independent auditor, and

(e)   

obligations to adjust prices in accordance with directions given by

OFCOM.

      (2)  

An obligation within sub-paragraph (1)(d) may require the person to meet

the costs of the audit.

30

      (3)  

In sub-paragraph (1)(d) “qualified independent auditor” means a person

who—

(a)   

is eligible for appointment as a statutory auditor under Part 42 of the

Companies Act 2006, and

(b)   

if the appointment were an appointment as a statutory auditor,

35

would not be prohibited from acting by section 1214 of that Act

(independence requirement).

4          

An access condition may include provision requiring the application of

presumptions in the fixing and determination of costs and charges for the

purposes of the price controls, rules and obligations referred to in paragraph

40

3.

 
 

Postal Services Bill
Schedule 3 — Further provision about access conditions
Part 1 — Provision that may be made by access conditions

67

 

5     (1)  

If an access condition imposes rules on any person about the use of cost

accounting systems, OFCOM may secure that the condition also imposes an

obligation on the person to make arrangements for a description to be made

available to the public of the cost accounting system used.

      (2)  

If OFCOM impose an obligation on a person under sub-paragraph (1), the

5

description of information to be made available must include details of—

(a)   

the main categories under which costs are brought into account for

the purposes of that system, and

(b)   

the rules applied for the purposes of that system with respect to the

allocation of costs.

10

Arrangements for provision of services by others

6     (1)  

This paragraph applies if—

(a)   

services are provided to a postal operator pursuant to arrangements

made between the operator and another person (“B”),

(b)   

an access condition requires the operator to secure that those services

15

are also provided to a third person (“C”), and

(c)   

the provisions of the arrangements are such that the operator cannot

secure that the services are provided to C without B’s agreement.

      (2)  

The access condition may include—

(a)   

provision in relation to the giving of agreement by B (including

20

provision for agreement to be deemed to be given in circumstances

specified in the condition), and

(b)   

provision for determining the terms and conditions on which B is to

secure the provision of the services to C.

      (3)  

Provision may not be included in an access condition as a result of this

25

paragraph if it would have the effect of requiring a person who provides

services pursuant to the arrangements to do more than the person could be

required to do pursuant to the arrangements as they have effect before the

condition is imposed.

Separation for accounting purposes

30

7          

An access condition requiring a separation for accounting purposes between

different matters may include provision—

(a)   

requiring the separation to be maintained in relation to different

services, facilities or products or in relation to services, facilities or

products provided in different areas, and

35

(b)   

requiring particular accounting methods to be used in maintaining

the separation.

Restriction on use of information obtained in connection with giving access

8          

An access condition imposed on a person may include provision requiring

the person not to use information which—

40

(a)   

is obtained in connection with the giving of access, and

(b)   

relates to the provision of postal services by any person to whom

access is given,

           

for any purpose other than the purpose of the access given by the condition.

 
 

Postal Services Bill
Schedule 3 — Further provision about access conditions
Part 2 — Resolution of access disputes by OFCOM

68

 

Periods for compliance

9          

An access condition imposed on a person may include provision for

securing that obligations contained in the condition are complied with

within the periods or at the times required by or under the condition.

Dealing with requests for access

5

10         

An access condition imposed on a person may include provision for

securing fairness and reasonableness in the way in which requests for access

are made and responded to.

Non-discrimination

11         

An access condition imposed on a person may include provision requiring

10

the person not to discriminate unduly against particular persons, or against

a description of persons, in relation to access matters.

Transparency

12         

An access condition imposed on a person may include provision requiring

the person—

15

(a)   

to publish all such information as OFCOM may direct (in such

manner as they may direct) for the purpose of securing transparency

in relation to access matters, or

(b)   

to publish (in such manner as OFCOM may direct) the terms and

conditions on which the person is willing to offer access.

20

Part 2

Resolution of access disputes by OFCOM

Reference of disputes to OFCOM

13    (1)  

Any one or more parties to an access dispute may refer the dispute to

OFCOM.

25

      (2)  

In this paragraph “access dispute” means a dispute between postal

operators, or between a postal operator and a user of postal services, about

the terms and conditions (including those as to price) on which access,

required by virtue of an access condition to be given—

(a)   

is to be or may be provided,

30

(b)   

is being provided, or

(c)   

has been provided.

      (3)  

A reference under this paragraph must be made in such manner as OFCOM

require.

      (4)  

A requirement under sub-paragraph (3) is to be imposed, withdrawn or

35

modified by OFCOM publishing a notice in such manner as they consider

appropriate for bringing the requirement, withdrawal or modification to the

attention of persons who, in their opinion, are likely to be affected by it.

      (5)  

Different requirements may be imposed for different cases.

 
 

Postal Services Bill
Schedule 3 — Further provision about access conditions
Part 2 — Resolution of access disputes by OFCOM

69

 

OFCOM to decide whether to handle dispute

14    (1)  

This paragraph applies where a dispute has been referred to OFCOM under

paragraph 13.

      (2)  

OFCOM must decide whether it is appropriate for them to handle the

dispute.

5

      (3)  

As soon as possible after they have reached a decision, OFCOM must inform

each of the parties to the dispute of—

(a)   

their decision,

(b)   

the date it was made, and

(c)   

their reasons for it.

10

Resolution of disputes by OFCOM

15    (1)  

This paragraph applies if OFCOM have decided under paragraph 14 that it

is appropriate for them to handle a dispute.

      (2)  

OFCOM must—

(a)   

consider the dispute, and

15

(b)   

make a determination for resolving it.

      (3)  

The determination must be made as soon as reasonably practicable.

      (4)  

A determination binds all of the parties to the dispute.

      (5)  

Where there has been an attempt to resolve the dispute by other means—

(a)   

OFCOM may, in making their determination, take account of

20

decisions made by others in the course of that attempt, and

(b)   

the determination may include provision ratifying any of those

decisions.

Resolution of disputes: OFCOM’s powers

16    (1)  

The powers that may be exercised by OFCOM, on the making of a

25

determination under paragraph 15, are those listed in sub-paragraph (2).

      (2)  

The powers are—

(a)   

to make a declaration setting out the rights and obligations of parties

to the dispute,

(b)   

to give a direction fixing the terms or conditions of transactions

30

between parties to the dispute,

(c)   

to give a direction imposing an obligation, enforceable by the parties,

to enter into a transaction between themselves on the terms and

conditions fixed by OFCOM,

(d)   

to give a direction, enforceable by the party to whom the sums are to

35

be paid, requiring the payment of sums by way of adjustment of an

underpayment or overpayment (but see sub-paragraph (3)),

(e)   

to require a party to the dispute to pay all or part of another party’s

costs and expenses incurred in connection with the dispute,

(f)   

to require a party to pay all or part of OFCOM’s costs of dealing with

40

the dispute (but see sub-paragraph (4)).

      (3)  

A direction under sub-paragraph (2)(d) may be given only for the purpose

of giving effect to a determination by OFCOM of the proper amount of a

 
 

Postal Services Bill
Schedule 3 — Further provision about access conditions
Part 2 — Resolution of access disputes by OFCOM

70

 

charge in respect of which amounts have been paid by one party to the

dispute to another.

      (4)  

A direction under sub-paragraph (2)(f) may be given to a party only if—

(a)   

the party referred the dispute to OFCOM, and

(b)   

OFCOM consider that the reference was frivolous or vexatious or

5

that the party has otherwise abused the right (conferred by

paragraph 13) to refer disputes.

Resolution of disputes: procedure

17    (1)  

The procedure for the consideration and determination of a dispute is the

procedure that OFCOM consider appropriate.

10

      (2)  

That procedure may involve allowing the continuation of a procedure that

has already begun for resolving the dispute by other means.

      (3)  

OFCOM must send a copy of their determination, together with a full

statement of their reasons for it, to every party to the dispute.

      (4)  

OFCOM must publish so much of their determination as (having regard in

15

particular to the need to preserve commercial confidentiality) they consider

it appropriate to publish.

      (5)  

Information published under sub-paragraph (4) must be published in such

manner as OFCOM consider appropriate for bringing it to the attention (to

the extent that they consider appropriate) of members of the public.

20

Reference not to affect legal proceedings or OFCOM’s powers

18    (1)  

A reference under paragraph 13 of a dispute does not prevent any person

from bringing or continuing any civil or criminal proceedings in or before a

court with respect to any of the matters under dispute.

      (2)  

Sub-paragraph (1) is subject to—

25

(a)   

paragraph 15(4) (determination binding on all parties), and

(b)   

any agreement to the contrary.

      (3)  

Any reference of a dispute to OFCOM, or consideration or determination by

OFCOM of a dispute, does not prevent OFCOM from exercising any of their

powers (or from doing anything in connection with the exercise of any of

30

their powers) in relation to the subject-matter of the dispute.

Information

19    (1)  

This paragraph applies where a dispute has been referred under paragraph

13 to OFCOM.

      (2)  

OFCOM may require a person to provide them with specified information,

35

in the specified manner and within the specified period.

           

“Specified” here means specified by OFCOM.

      (3)  

The information that may be specified is information required by OFCOM

for the purpose of—

(a)   

deciding whether it is appropriate for them to handle the dispute, or

40

(b)   

considering the dispute and making a determination under

paragraph 15.

 
 

 
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