The transferable tax history rules are now law.
However, any seller of a licence interest who has a Decommissioning Relief Deed in place cannot make an election to transfer tax history unless the Deed contains a provision to ensure the seller cannot make a Deed claim that effectively relies upon tax history that has been transferred.
Specifically, the Deed must provide that the total transferred amount of tax history is removed from the calculation of the “reference amount”; which is the amount effectively guaranteed by the Deed.
This means that current Deed wording is incompatible with transferring tax history and must be changed. Given that elections to transfer tax history must be made within 90 days of the sale and we do not know how long Treasury officials will take to make amendments, groups should consider initiating the changes sooner rather than waiting for a potential sale.
There should be no downside from making the changes to the Deed, although we have not yet seen the final wording to be incorporated into the Deed. The effect of the Deed change should simply remove the transferred tax history from the guaranteed relief offered by the Treasury, as would be expected since the transferee will be able to use that tax history.