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The Lending SPV [i. All repayments of the SPV Loan shall be made out of distributions made by the LLP to its members and such payments shall not be due until such distributions are made. This Opinion dealt, among other matters, with the proposal that MCashback would ultimately secure the loan to be taken out by the LLP members. Counsel said that he saw no difficulty in the commerciality of such an arrangement, provided that it was properly implemented and the purpose of the arrangement was to enable the purchaser to pay MCashback the appropriate purchase price for the software.
After briefly discussing various House of Lords authorities, counsel continued in paragraph of his Opinion:. There was undisputed evidence that this was a standard commercial finance leasing transaction … The LLP will produce appropriate evidence in this regard from the banks. Although I cannot see any distinction in principle between a blocked funds arrangement and a loan by the vendor to the purchaser on non-recourse terms where there is a bona fide belief that the loan will be repaid one clearly has to avoid that structure.
The loan was interest-free, apart from default interest chargeable in the event of failure to pay any sums due on the due date. It can therefore be seen that the borrowing by Mr Donaldson, and the other participating members, was on limited recourse terms, and that in practice the lender had no rights against the members apart from a right to enforce the security given by them over their shares in the LLP. The necessary arrangements involving the two banks were eventually put in place by three agreements, namely:.
However, clause 7. Furthermore, clause 7. Clause 5 provided for a corresponding release and repayment from the deposit account when Janus received payment of any principal under the Loan Agreement from the borrower. By clause 6. However, he noted in paragraph 52 that completion of the contracts with LLP 1 and LLP 2 took place in January , and I was informed by counsel for the taxpayers that the date of completion was in fact 11 January.
I do not understand this to be disputed by HMRC. Furthermore, although the Special Commissioner was evidently concerned about many features of the scheme, it seems fairly clear to me that he accepted the reality of the transactions which had ostensibly taken place, and was not prepared to hold that any of them were sham. I will need to return to the concerns expressed by the Special Commissioner later in this judgment, but for now I draw attention to what he said in paragraphs and following:.
Nothing in the previous paragraphs is dependent on disregarding any transactions that have been undertaken. My analysis is not that the actual transactions should be disregarded and that there should instead be deemed to be loan backs directly from MCashback, or indeed that the transaction should be treated as an instalment sale.
I entirely accept that what was, in substance, an instalment sale was actually implemented as an outright sale, accompanied by a loan back that was non-recourse, and ultimately to be discharged by the lenders, all filtered through two banks for no real purpose other than to try to disguise the reality of what was happening.
It thus follows that I accept that, in so far as the borrowers bore the cost of interest payable to the banks, nothing detracts from the technicality that the members had borrowed from banks and indeed paid interest to those banks.
I find it difficult to decide whether the transaction in the present case was a sham or not. I naturally accept that software was sold, and I also accept that, in the fullness of time, the software might become very valuable and successful, generating high revenues. I also accept that the people who produced the business case figures might have done so honestly, albeit very optimistically, and there was certainly no actual evidence to suggest that there was a conspiracy to ramp up the value of the asset in order to increase the available allowances.
I do however consider it clear that the parties paid no attention to verifying the real figures, because everyone knew that the non-recourse loans would make everyone indifferent to whether the figures were correct or not. It accordingly follows that in my view the figure given as price was appreciated to be a figure that no one would have considered paying outright; it was appreciated that in economic reality no one was paying the price outright, and it was appreciated that the higher figure would simply increase the up front allowances.
However, those facts formed part of a larger scheme devised by BZW, which was itself another company in the Barclays group. The key features of that scheme are summarised in paragraphs 14 to Lord Nicholls continued at It had to remain on deposit with Deepstream [the Jersey company] and be paid out, year by year, partly in the form of A payments to discharge the liability for rent under the lease and partly in the form of B and C payments for the benefit of BGE.
There was no challenge to that finding. However, the circularity of the payments was not an essential part of the scheme, because the security arrangements might have been provided by a bank other than Barclays. Lord Nicholls said at Likewise, the terms upon which Barclays Bank provided the guarantee were ordinary commercial terms.
It could have been provided by a different bank without affecting the way in which the scheme worked. In fact, however, the payments did circulate within the Barclays group.
They held that the purpose of the expenditure was not to acquire the pipeline, but rather to obtain capital allowances which would result ultimately in a profit to BGE and fees payable to BMBF and BZW. The judge went so far as to say that the existence of the pipeline and the amount of the consideration were irrelevant.
Because of the circularity of the payments, the scheme would have worked just as well whatever price had been named in the documents and whether there had actually been a pipeline or not.
I will, however, quote the final paragraphs, in which Lord Nicholls stated the conclusions of the House as follows:. The object of granting the allowance is, as we have said, to provide a tax equivalent to the normal accounting deduction from profits for the depreciation of machinery and plant used for the purposes of a trade.
Consistently with this purpose, section 24 1 requires that a trader should have incurred capital expenditure on the provision of machinery or plant for the purposes of his trade. When the trade is finance leasing, this means that the capital expenditure should have been incurred to acquire the machinery or plant for the purpose of leasing it in the course of the trade.
In such a case, it is the lessor as owner who suffers the depreciation in the value of the plant and is therefore entitled to an allowance against the profits of his trade.
These statutory requirements, as it seems to us, are in the case of a finance lease concerned entirely with the acts and purposes of the lessor. The Act says nothing about what the lessee should do with the purchase price, how he should find the money to pay the rent or how he should use the plant.
So far as the lessor is concerned, all the requirements of section 24 1 were satisfied. Mr Boobyer, a director of BMBF, gave unchallenged evidence that from its point of view the purchase and leaseback was part of its ordinary trade of finance leasing. Indeed, if one examines the acts and purposes of BMBF, it would be very difficult to come to any other conclusion. But these matters do not affect the reality of the expenditure by BMBF and its acquisition of the pipeline for the purposes of its finance leasing trade.
If the lessee chooses to make arrangements, even as a preordained part of the transaction for the sale and lease back, which result in the bulk of the purchase price being irrevocably committed to paying the rent, that is no concern of the lessor. From his point of view, the transaction is exactly the same. No one disputes that BMBF had acquired ownership of the pipeline or that it generated income for BMBF in the course of its trade in the form of rent chargeable to corporation tax.
The circularity of payments which so impressed Park J and the special commissioners arose because BMBF, in the ordinary course of its business, borrowed the money to buy the pipeline from Barclays Bank and Barclays happened to be the bank which provided the cash collateralised guarantee to BMBF for the payment of the rent.
None of these transactions, whether circular or not, were necessary elements in creating the entitlement to the capital allowances. For these reasons, which are substantially the same as those of the Court of Appeal, we would dismiss this appeal. He then said:. It therefore requires one to look only at what the taxpayer did. To the test posed in section 24 it is immaterial how the trader acquires the funds to incur the expenditure or what the vendor of the provided plant or machinery does with the consideration received.
The express reference in section 75 1 c [now section ] to the disallowance of a first-year allowance where the sole or main benefit that might have been expected to accrue was the obtaining of an allowance suggests that save in a case to which that provision applies, the expectation of, or the intention to obtain, such benefit is not a reason for denying the capital allowances. On any view, those are real transactions with lasting consequences in the real world. However, once one accepts the transfer of ownership, it is difficult to question the reality of the expenditure by which the purchase price was discharged.
Furthermore, BMBF gave evidence that it financed the purchase price in the normal way by a loan from its parent bank, in accordance with its standard drawing facility, and that it was not concerned with the security arrangements made by the bank.
There is no indication that this evidence was disbelieved. In any event, there seems to me a close analogy with the issue, which was decided by the House of Lords in MacNiven.
This was explained succinctly by Lord Nicholls of Birkenhead … at :. Does it make a difference when the payment is made with money borrowed for the purpose from the very person to whom the arrears of interest are owed?
In principle, I think not. Leaving aside sham transactions, a debt may be discharged and replaced with another even when the only persons involved are the debtor and creditor. Once that is accepted, as I think it must be, I do not see it can matter that there was no business purpose other than gaining a tax advantage.
A genuine discharge of a genuine debt cannot cease to qualify as payment for the purpose of section by reason only that it was made solely to secure a tax advantage. There is nothing in the language or context of section to suggest that the purpose for which a payment of interest is made is material. I can only conclude that he must have misunderstood, or at least failed to appreciate the significance of, the principles of law which were so clearly established by BMBF.
He discusses this aspect of the case at great length, and returns to it a number of times, expressing his conclusions in colourful and sometimes contradictory terms. Two points in particular appear to have impressed him.
That is the effect of the relevant wording in sections 4 , 11 and 52 of CAA , including in particular section 11 4 a which says that expenditure is qualifying expenditure if it is capital expenditure on the provision of plant. The legislation only introduces a restriction on the amount of the allowance by reference to the market value of the plant in cases where the anti-avoidance provisions in sections to apply, dealing respectively with transactions between connected persons, transactions where obtaining an allowance is the sole or main benefit in prospect, and as in BMBF transactions where there is a sale and leaseback.
In those cases, FYAs are excluded by section , and section also provides that any expenditure in excess of the market value of the plant or machinery is to be left out of account. It has never been suggested in the present case that any of these anti-avoidance provisions apply. Accordingly, as I have said, the market value of the software is irrelevant, save in so far as it may throw light on the contention that the money was in fact paid for something other than the software.
Mr Brewer was not asked to predict the future income stream that would be derived from the MRewards system. That was the function of the Business Report, and he was instructed to take those figures as his starting point. In the course of his valuation Mr Brewer applied a number of variables, including a discount for risk.
I do not propose to deal with this question in any detail, since as I have explained I consider the question of valuation to be irrelevant to the Expenditure Issue. However, I should record that I agree with the submission of counsel for the LLPs that the approach adopted by the Special Commissioner in paragraphs 74 to 76 of the Decision is fundamentally misconceived.
Those approaches were stated by him as follows I will again substitute numbered sub-paragraphs for his bullet points :. The Special Commissioner was, however, again led to reject it by his view that the price paid was far in excess of the value of the software: see paragraphs and He discussed it at considerable length in paragraphs to , before turning in paragraphs to to considering whether the authorities precluded him from adopting it.
Despite the length of this discussion, however, I have to say that I find it very difficult indeed to understand his reasoning. Yet he was not prepared to disregard any of the actual transactions, and he accepted rightly that the transaction was not in fact structured as an instalment sale see paragraph In those circumstances the nature of the supposed underlying reality of the transaction seems to me entirely elusive, and the use of colourful but imprecise metaphors to describe it obscures rather than illuminates the issue see in particular paragraphs , and In order to say that the wrong label has been attached to a transaction, it is first necessary to identify with clarity the transaction which is said to have been misdescribed.
In my respectful judgment the Special Commissioner nowhere succeeds in doing that. He was in my judgment fully entitled, having heard and considered the oral evidence, to conclude that the reasons advanced for the inclusion of the banks were of no substance see paragraphs 66 and 67 , and that they were in fact interposed for tax reasons see paragraph It is indeed a fairly obvious inference from the tax advice given by Mr Soares see paragraph 48 above that this was the reason for involving the banks, because it was thought desirable to avoid a direct loan-back of part of the proceeds of sale.
However, it does not follow from this, as the Special Commissioner seems to have assumed in paragraph , that the involvement of the banks should therefore be disregarded, or that the underlying reality of the transaction had thereby been disguised. In some statutory contexts, the Ramsay approach may, as a matter of construction of the relevant provisions, enable artificially inserted steps to be disregarded in the process of applying the relevant legislation to the facts.
But the legislation relating to capital allowances, as expounded by the House of Lords in BMBF , is resistant to such an approach, because it focuses attention solely on the position of the purchaser, and the wider financing arrangements are irrelevant so long as the purchaser actually incurs expenditure on acquiring the plant for the purposes of his trade.
He argued that the banks had been inserted into the chain in the present case for tax reasons, and pointed out that no evidence had been adduced from the banks as to the commerciality of the arrangements, even though Mr Soares had recommended this in paragraph of his Opinion.
I accept that there are distinctions between the facts of the present case and those of BMBF , and I would agree that in the absence of evidence from the banks the Special Commissioner was entitled to be sceptical about the commerciality of the arrangements into which they entered. An analogy may be drawn at this point with the facts of MacNiven , in the context of the closely comparable question whether the taxpayer in that case had made a payment of the interest which it owed to its parent.
The transaction by which it was put in funds to make the payment could hardly have been more uncommercial. The taxpayer was a heavily insolvent company, and it was lent the money to make the payment by its parent, which was the creditor to whom the debt was owed. Nevertheless, these features did not detract from the fact that the interest in question was paid, and for the purposes of the relevant statutory provision section of ICTA that was all that mattered.
For the reasons which he gave in paragraphs 88 to 97 of the Decision, the Special Commissioner concluded that LLP 1 had not commenced any trade by that date. It was enough that the trade began to be carried on at some point during the year. Other examples of qualifying activities are an ordinary Schedule A business, a profession or vocation, the management of an investment company, and an employment or office. Each such activity is, however, subject to the proviso at the end of section 15 1 which reads:.
The legislation therefore expressly envisages that a person may incur expenditure on the provision of plant or machinery for the purposes of a trade or other qualifying activity that he intends, but has not yet begun, to carry on.
In those circumstances the prospective trader does not forfeit entitlement to capital allowances, but is treated as if he had incurred the expenditure on the first day when he begins to carry on the activity. This provision seems to me to be important for three reasons. First, it recognises that there may be a distinction, at least in some cases, between the acquisition of plant or machinery by way of preparation for a trade or other qualifying activity which is to be carried on in the future, and the actual carrying on of the trade of activity.
Thirdly, section 12 appears to me to reflect an underlying principle of fiscal symmetry, whereby relief should not in general be given for capital expenditure on plant or machinery until it is actually being used for the purposes of an activity which will, at least potentially, generate taxable income or gains: compare the proviso at the end of section 15 1.
In the context of a trade, it seems to me that a person cannot normally be said to be carrying it on within the meaning of section 11 if he is not yet in a position to start turning the business to account, or operating it, in a way that is designed at least ultimately to yield a profit. Accordingly, the question is whether LLP 1 began to carry on its trade in the course of the seven days between its incorporation on 30 March and the end of the tax year on 5 April.
In return, LLP 1 would become entitled from the date of completion to 0. It is important to note that there was never any question of the code generation software being exploited by itself, or by LLP 1 alone.
Neither the software licensed to the four LLPs nor the software retained by MCashback could function independently, and the proposed business model was for the joint exploitation and development of the technology under the direction and management of a committee with members appointed both by the LLPs and by MCashback.
However, these agreements had not progressed beyond draft stage by 6 April , and the Collaboration Agreement was not in fact signed until more than one year later, on 16 May Furthermore, completion of the SLA itself was also delayed and did not take place until 12 January The entry into the SLA was a step preparatory to the carrying on of a trade. It was not a step taken in the course of a trade which had already begun, nor was it a step which itself marked the commencement of trading.
Until terms had been agreed, it could not in my view be said that LLP 1 was in a position to start turning the licensed software to account, or that it had in any meaningful sense started to trade.
He went on to say that by operational activities he meant dealings with third parties immediately and directly related to the supplies to be made which it is hoped will give rise to the expected profits, and which involve the trader putting money at risk.
Every case will turn on its own facts, but in general the test presupposes that the framework or structure for the trade will have to be set up or established before any operational activity can begin.
Mr Hellier gave as examples of setting up a trade such matters as the purchase of plant, and organisation of the decision making structures, the management and the financing see paragraph In my judgment a similar approach is helpful in answering the question whether a trade is being carried on for the purposes of CAA section 11 , and the present case falls clearly on the pre-trading side of the line because the SLA amounted to no more than a contract for the acquisition of plant at a time before any decision-making, financial or management structure for the intended trade had been put in place.
First, the activities in question discussions with Mr Gildersleeve of Tesco about how the LLPs could assist MCashback in promoting the system, and some discussions in California at a time when Tower was also promoting some film schemes must have taken place before LLP 1 was incorporated — at any rate, there is no evidence that any of them took place in the week after its incorporation and before the end of the tax year.
A corporate entity cannot trade, or indeed do anything, before it has a separate legal existence. This evidence was not fleshed out in cross-examination, and whether taken alone or in conjunction with the entry into the SLA it does not in my judgment begin to provide a solid foundation for the contention that LLP 1 had started trading before 6 April However, none of these decisions was concerned with the legislation which I now have to construe, and for the reasons which I have given I feel no doubt that the Special Commissioner was correct to conclude that LLP 1 had not begun trading before 6 April , despite the optimistic assertion to that effect in its first set of accounts for the period to 5 April The question is whether LLP 1 and LLP 2 came under an unconditional obligation to pay the consideration due under their respective SLAs on the date when they were entered into, namely 31 March , or whether their obligation was conditional upon the prior performance by MCashback of the obligations which it undertook to perform prior to completion.
In particular, clause 5. In reliance on this provision, counsel for HMRC argued that the obligation of the LLPs to pay the stated purchase price on completion was not an unconditional obligation within the meaning of section 5 1 of CAA In my judgment there was nothing conditional about the obligation of the LLPs to pay the consideration on completion. There was only one contract, and it provided for sequential obligations to be undertaken by each side; but that is not at all the same thing as saying that the obligations, or any of them, were themselves conditional.
The building was duly completed, and the lease was granted in May The question was whether this contract was a conditional contract within paragraph 1 of Schedule 9 to the Finance Act , in the context of the legislation relating to short-term capital gains which preceded the introduction of Capital Gains Tax in It was held by Goff J and the Court of Appeal that the contract was not a conditional contract, and that the land was acquired at the date of the contract.
As Russell LJ said at E:. It is a contract for sale and purchase, or, rather, grant and acceptance of a lease; what is provided for in the contract is not a condition of the contract at all, it is simply a provision that the one party shall carry out certain works in consideration of a promise thereafter to grant a lease, and that the other party, in consideration of those works being carried out, shall thereafter grant the lease.
The third member of the Court, Cairns LJ, agreed with both judgments. However, he was in my judgment quite right to conclude that the contracts entered into on 31 March by LLP 1 and LLP 2 were unconditional. On the true construction of the agreements, that was in my view the only conclusion which he could have reached.
The detailed considerations which led HMRC to form this view do not matter for present purposes, but in broad terms they thought that the plans to test and develop the scheme on a pilot basis with a supermarket group in South East Asia called Hero would necessarily involve granting to Hero a right to use or deal with the software licensed to the LLPs.
I would prefer to have had longer to examine the full records, as they have only been completely made available to me with your letter [of] 24 May. This would enable me to provide your clients with a full list of additional points for their consideration. In the circumstances I have to accept that any additional points that may arise will make no difference to the bottom line that no loss relief is due because of s.
Therefore as your clients are so very anxious to receive closure notices I now enclose copies of those that I have issued today. As previously indicated, my conclusion is:. The Partnership Return for the year ended 5 April is amended as follows. Although there is no tax liability for the partnership for the year my amendments do result in a reduction of losses available to the individual partners for the year ended 5 April The partnership has the right to appeal against this amendment or conclusion within 30 days of the date of this notice.
The letter said:. Mr Marsden identified the first matter to be determined at the appeal as follows:. The question therefore arises whether it was open to HMRC to seek to uphold the closure notices, and the amendments to the partnership tax returns, on any other grounds, including in particular the grounds which give rise to the Expenditure Issue, the Trading Issue and the Conditional Contract Issue.
Section 31A provides, so far as material, that notice of an appeal under section 31 1 b must be given in writing and within 30 days after the date on which the closure notice was issued. The notice of appeal must specify the grounds of appeal, but on the hearing of the appeal the Commissioners may allow the appellant to put forward grounds not specified in the notice, and take them into consideration, if satisfied that the omission was not wilful or unreasonable. In practice, closure notices are usually given by letter, as happened in the present case.
These are the only statutory requirements, and it follows that the closure notice need not be a long or complicated document. What matters at this stage is the conclusion which the officer has reached upon completion of his investigation of the matters in dispute, not the process of reasoning by which he has reached those conclusions. I find confirmation for this view in the statutory provisions relating to appeals.
No provision is made for an appeal against the reasons given by the officer for reaching his conclusions. Because one of the matters that the Commissioners have to consider is whether the taxpayer is undercharged to tax by an assessment or self-assessment, or whether any amounts contained in a partnership statement are insufficient , it would seem to follow that the Commissioners are not confined to an examination of the reasons advanced by HMRC in support of the conclusions set out in a closure notice, and that they are not compelled to treat an amendment to a return under section 28A or 28B as fixing the maximum amount of tax which is recoverable.
Provided that they act fairly, and on the basis of evidence that is properly before them, the Commissioners may take the initiative and apply the law to the facts in the manner that appears to them to be correct, regardless of the arguments advanced by either side. Learn and memorize some of the characteristics of the controlled object to optimize the effect.
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