|
| |
| |
| the proceedings may be continued as if they were proceedings for the |
| |
recovery of so much of the tax charged by the self assessment as is due and |
| |
payable and has not yet been paid. |
| |
| |
| 5 |
Assessment where loss of tax discovered |
| |
21 (1) | Sub-paragraph (2) applies if an officer of Revenue and Customs discovers |
| |
| |
(a) | an amount of tax that ought to have been assessed under this Part of |
| |
this Act as tax chargeable on a person for a chargeable period with |
| 10 |
respect to a single-dwelling interest has not been assessed, |
| |
(b) | an assessment of the tax chargeable on a person for a chargeable |
| |
period in respect of a single-dwelling interest is or has become |
| |
| |
(c) | relief has been given that is or has become excessive. |
| 15 |
(2) | An officer of Revenue and Customs may make an assessment (a “discovery |
| |
assessment”) in the amount or further amount that ought in the officer’s |
| |
opinion to be charged in order to make good to the Crown the loss of tax. |
| |
(3) | The functions of an officer of Revenue and Customs under this paragraph |
| |
are also exercisable by the Commissioners for Her Majesty’s Revenue and |
| 20 |
| |
Assessment to recover excessive repayment of tax |
| |
22 (1) | If an amount of tax has been, but ought not to have been, repaid to a person |
| |
that amount may be assessed and recovered as if it were unpaid tax. |
| |
(2) | If the repayment was made with interest, the amount assessed and |
| 25 |
recovered may include the amount of interest that ought not to have been |
| |
| |
References to “the taxpayer” |
| |
23 | In paragraphs 24 to 27 “taxpayer” means— |
| |
(a) | in relation to an assessment under paragraph 21, the chargeable |
| 30 |
| |
(b) | in relation to an assessment under paragraph 22, the person |
| |
mentioned in paragraph 22(1). |
| |
Conditions for making assessment where return has been delivered |
| |
24 (1) | If the taxpayer has delivered a return in respect of the interest in question for |
| 35 |
the chargeable period in question, an assessment under paragraph 21 or 22 |
| |
may only be made in the two cases specified in sub-paragraphs (2) and (3). |
| |
| See also the further restriction in sub-paragraph (7). |
| |
(2) | The first case is where the situation mentioned in paragraph 21(1) or 22(1) |
| |
was brought about carelessly or deliberately by— |
| 40 |
| |
| |
| |
|
| |
| |
(b) | a person acting on behalf of the taxpayer, or |
| |
(c) | a person who was a partner of the taxpayer at the relevant time. |
| |
(3) | The second case is where it could not reasonably have been expected that an |
| |
officer of Revenue and Customs in possession of the information made |
| |
available to HMRC before the relevant time would be aware at the relevant |
| 5 |
time of the situation mentioned in paragraph 21(1) or 22(1). |
| |
(4) | In sub-paragraph (3) “the relevant time” means the time HMRC— |
| |
(a) | ceased to be entitled to give a notice of enquiry into the return, or |
| |
(b) | completed their enquiries into the return. |
| |
(5) | For this purpose information is regarded as made available to HMRC if— |
| 10 |
(a) | it is contained in a return delivered by the taxpayer, |
| |
(b) | it is contained in any documents produced or information provided |
| |
to an officer of Revenue and Customs for the purposes of an enquiry |
| |
| |
(c) | it is information the existence and relevance of which officers of |
| 15 |
Revenue and Customs could reasonably have been expected to infer |
| |
from information made available as mentioned in paragraph (a) or |
| |
| |
(d) | it is information the existence and relevance of which was notified to |
| |
an officer of Revenue and Customs by the taxpayer or a person acting |
| 20 |
on the taxpayer’s behalf. |
| |
(6) | In sub-paragraph (5)(c) and (d) “relevance” means relevance as regards the |
| |
situation mentioned in paragraph 21(1) or 22(1). |
| |
(7) | No assessment may be made under paragraph 21 or 22 if— |
| |
(a) | the situation mentioned in paragraph 21(1) or 22(1) is attributable to |
| 25 |
a mistake in the return as to the basis on which the tax liability ought |
| |
to have been calculated, and |
| |
(b) | the return was in fact made on the basis prevailing, or in accordance |
| |
with the practice generally prevailing, at the time it was made. |
| |
Time limit for assessments |
| 30 |
25 (1) | The general rule is that no assessment may be made more than 4 years after |
| |
the end of the chargeable period to which the assessment relates. |
| |
(2) | An assessment of a person to tax in a case involving a loss of tax brought |
| |
about carelessly by the taxpayer or a related person may be made up to 6 |
| |
years after the end of the chargeable period to which the assessment relates. |
| 35 |
(3) | An assessment to which this sub-paragraph applies may be made up to 20 |
| |
years after the end of the chargeable period to which the assessment relates. |
| |
(4) | Sub-paragraph (3) applies to an assessment of a person in any case involving |
| |
| |
(a) | brought about deliberately by the taxpayer or a related person, |
| 40 |
(b) | attributable to a failure by the taxpayer to comply with obligations |
| |
under section 157(1) or 158(1) (duty to make annual tax on enveloped |
| |
dwellings return or return of adjusted chargeable amount), or |
| |
(c) | attributable to arrangements in respect of which the person has |
| |
failed to comply with an obligation under section 309, 310 or 313 of |
| 45 |
| |
| |
|
| |
| |
FA 2004 (obligation of parties to tax avoidance schemes to provide |
| |
| |
(5) | An assessment under paragraph 22 (assessment to recover excessive |
| |
repayment of tax) is not out of time if it is made— |
| |
(a) | while an enquiry is in progress into a relevant return, or |
| 5 |
(b) | within the period of one year beginning with the date on which the |
| |
repayment in question was made. |
| |
(6) | In sub-paragraph (5)— |
| |
“in progress” is to be read in accordance with paragraph 11(4); |
| |
“relevant return” means a return delivered by the taxpayer and relating |
| 10 |
to the chargeable period and the interest in question. |
| |
(7) | If the taxpayer has died— |
| |
(a) | any assessment on the personal representatives must be made within |
| |
4 years after the death, and |
| |
(b) | an assessment is not to be made by virtue of sub-paragraph (2) in |
| 15 |
respect of a chargeable period that ended more than 6 years before |
| |
| |
(8) | Any objection to the making of an assessment on the ground that the time |
| |
limit for making it has expired can only be made on an appeal against the |
| |
| 20 |
(9) | In this paragraph “related person”, in relation to the taxpayer, means— |
| |
(a) | a person acting on the taxpayer’s behalf, or |
| |
(b) | a person who was the partner of the taxpayer at the relevant time. |
| |
Losses brought about carelessly or deliberately |
| |
26 (1) | This paragraph applies for the purposes of paragraphs 24 and 25. |
| 25 |
(2) | A loss of tax is brought about carelessly by a person if the person fails to take |
| |
reasonable care to avoid bringing about that loss. |
| |
(3) | Sub-paragraph (4) applies where— |
| |
(a) | information is provided to HMRC, |
| |
(b) | the person who provided the information, or the person on whose |
| 30 |
behalf the information was provided, discovers some time later that |
| |
the information was inaccurate, and |
| |
(c) | that person fails to take reasonable steps to inform HMRC. |
| |
(4) | Any loss of tax brought about by the inaccuracy is to be treated as having |
| |
been brought about carelessly by that person. |
| 35 |
(5) | References to a loss of tax brought about deliberately by a person include a |
| |
loss of tax brought about as a result of a deliberate inaccuracy in a document |
| |
given to HMRC by or on behalf of that person. |
| |
| |
27 (1) | Notice of an assessment must be served on the taxpayer. |
| 40 |
(2) | The notice must state— |
| |
| |
| |
| |
|
| |
| |
(b) | the date on which the notice is issued, and |
| |
(c) | the time within which any appeal against the assessment must be |
| |
| |
(3) | After notice of the assessment has been served on the taxpayer, the |
| |
assessment may not be altered except in accordance with the express |
| 5 |
provisions of this Part of this Act. |
| |
(4) | Where an officer of Revenue and Customs has decided to make an |
| |
assessment to tax, and has taken all other decisions needed for arriving at the |
| |
amount of the assessment, the officer may entrust to some other officer of |
| |
Revenue and Customs the responsibility for completing the assessing |
| 10 |
procedure, whether by means involving the use of a computer or otherwise, |
| |
including responsibility for serving notice of the assessment. |
| |
| |
Relief in case of overpaid tax or excessive assessment |
| |
Relief in case of double assessment |
| 15 |
28 (1) | A person who believes that tax has been assessed on that person more than |
| |
once in respect of the same matter may make a claim to the Commissioners |
| |
for Her Majesty’s Revenue and Customs for relief against any double |
| |
| |
(2) | Schedule 11A to FA 2003 (claims not included in returns) applies in relation |
| 20 |
to a claim under sub-paragraph (1) as it applies to a claim such as is |
| |
mentioned in paragraph 1 of that Schedule. |
| |
Claim for relief for overpaid tax etc |
| |
29 (1) | This paragraph applies where— |
| |
(a) | a person has paid an amount by way of tax but believes the tax was |
| 25 |
| |
(b) | a person has been assessed as chargeable to an amount of tax, or a |
| |
determination has been made that a person is chargeable to an |
| |
amount of tax but the person believes the tax is not chargeable. |
| |
(2) | The person may make a claim to the Commissioners for Her Majesty’s |
| 30 |
Revenue and Customs for the amount to be repaid or discharged. |
| |
(3) | Where this paragraph applies, the Commissioners for Her Majesty’s |
| |
Revenue and Customs are not liable to give relief, except as provided in this |
| |
Schedule or by or under any other provision of this Part of this Act. |
| |
(4) | For the purposes of this paragraph and paragraphs 30 to 34, an amount paid |
| 35 |
by one person on behalf of another is treated as paid by the other person. |
| |
Cases in which Commissioners are not liable to give effect to a claim |
| |
30 (1) | The Commissioners for Her Majesty’s Revenue and Customs are not liable |
| |
to give effect to a claim under paragraph 29 if or to the extent that the claim |
| |
falls within a case described in this paragraph. |
| 40 |
(2) | Case A is where the amount of tax paid, or liable to be paid, is excessive |
| |
| |
| |
| |
|
| |
| |
(a) | a mistake in a claim, or |
| |
(b) | a mistake consisting of making, or failing to make, a claim. |
| |
(3) | Case B is where the claimant is or will be able to seek relief by taking other |
| |
steps under this Part of this Act. |
| |
(4) | Case C is where the claimant— |
| 5 |
(a) | could have sought relief by taking such steps within a period that has |
| |
| |
(b) | knew or ought reasonably to have known, before the end of that |
| |
period, that such relief was available. |
| |
(5) | Case D is where the claim is made on grounds that— |
| 10 |
(a) | have been put to a court or tribunal in the course of an appeal by the |
| |
claimant relating to the amount paid or liable to be paid, or |
| |
(b) | have been put to HMRC in the course of an appeal by the claimant |
| |
relating to that amount that is treated as having been determined by |
| |
a tribunal by virtue of paragraph 46 (settling of appeals by |
| 15 |
| |
(6) | Case E is where the claimant knew, or ought reasonably to have known, of |
| |
the grounds for the claim before the latest of the following— |
| |
(a) | the date on which a relevant appeal in the course of which the |
| |
ground could have been put forward was determined by a court or |
| 20 |
tribunal (or is treated as having been so determined); |
| |
(b) | the date on which the claimant withdrew a relevant appeal to a court |
| |
| |
(c) | the end of the period in which the claimant was entitled to make a |
| |
relevant appeal to a court or tribunal. |
| 25 |
| In this sub-paragraph “relevant appeal” means an appeal by the claimant |
| |
relating to the amount paid or liable to be paid. |
| |
(7) | Case F is where the amount in question was paid or is liable to be paid— |
| |
(a) | in consequence of proceedings enforcing the payment of that |
| |
amount brought against the claimant by HMRC, or |
| 30 |
(b) | in accordance with an agreement between the claimant and HMRC |
| |
settling such proceedings. |
| |
| |
(a) | the amount paid, or liable to be paid, is excessive by reason of a |
| |
mistake in calculating the claimant’s liability to tax, and |
| 35 |
(b) | liability was calculated in accordance with the practice generally |
| |
| |
(9) | Case G does not apply where the amount paid, or liable to be paid, is tax |
| |
which has been charged contrary to EU law. |
| |
(10) | For the purposes of sub-paragraph (9), an amount of tax is charged contrary |
| 40 |
to EU law if, in the circumstances in question, the charge to tax is contrary |
| |
| |
(a) | the provisions relating to the free movement of goods, persons, |
| |
services and capital in Titles II and IV of Part 3 of the Treaty on the |
| |
Functioning of the European Union, or |
| 45 |
(b) | the provisions of any subsequent treaty replacing the provisions |
| |
mentioned in paragraph (a). |
| |
| |
| |
|
| |
| |
| |
31 (1) | A claim under paragraph 29 must be made within the period of 4 years after |
| |
the end of the chargeable period to which the payment by way of tax, or the |
| |
assessment or determination, relates. |
| |
(2) | A claim under paragraph 29 may not be made by being included in a return. |
| 5 |
(3) | Schedule 11A to FA 2003 (claims not included in returns) applies in relation |
| |
to a claim under paragraph 29 as it applies to a claim such as is mentioned |
| |
in paragraph 1 of that Schedule. |
| |
The claimant: partnerships |
| |
32 (1) | This paragraph is about the application of paragraph 29 in a case where |
| 10 |
| |
(a) | (in a case falling within sub-paragraph (1)(a) of that paragraph) the |
| |
person paid the amount in question in the capacity of a responsible |
| |
partner or representative partner, or |
| |
(b) | (in a case falling within sub-paragraph (1)(b) of that paragraph) the |
| 15 |
assessment was made on, or the determination related to the liability |
| |
of, the person in such a capacity. |
| |
(2) | In such a case, only a relevant person who has been nominated to do so by |
| |
all of the relevant persons may make a claim under paragraph 29 in respect |
| |
of the amount in question. |
| 20 |
(3) | The relevant persons are all the persons who would have been liable as |
| |
responsible partners to pay the amount in question had the payment been |
| |
due or (in a case falling within sub-paragraph (1)(b)) had the assessment or |
| |
determination been correctly made. |
| |
Assessment of claimant in connection with claim |
| 25 |
33 (1) | This paragraph applies where— |
| |
(a) | a claim is made under paragraph 29 (relief for overpaid tax etc), |
| |
(b) | the grounds for giving effect to the claim also provide grounds for a |
| |
discovery assessment on the claimant in respect of single-dwelling |
| |
| 30 |
(c) | such an assessment could be made but for a relevant restriction. |
| |
(2) | In a case falling within paragraph 32(1)(a) or (b), the reference to the |
| |
claimant in sub-paragraph (1)(b) of this paragraph includes any relevant |
| |
person (as defined in paragraph 32(3)). |
| |
(3) | The following are relevant restrictions— |
| 35 |
(a) | the restrictions in paragraph 24 (assessment where return has been |
| |
| |
(b) | the expiry of a time limit for making a discovery assessment. |
| |
(4) | Where this paragraph applies— |
| |
(a) | the relevant restrictions are to be disregarded, and |
| 40 |
(b) | the discovery assessment is not out of time if it is made before the |
| |
final determination of the claim. |
| |
| |
| |
|
| |
| |
(5) | A claim is not finally determined until it, or the amount to which it relates, |
| |
can no longer be varied (whether on appeal or otherwise). |
| |
| |
34 (1) | In paragraph 29(1)(a) the reference to an amount paid by a person by way of |
| |
tax includes an amount paid by a person under a contract settlement in |
| 5 |
connection with tax believed to be due. |
| |
(2) | Sub-paragraphs (3) to (6) apply if the person who paid the amount under the |
| |
contract settlement (“the payer”) and the person from whom the tax was due |
| |
(“the taxpayer”) are not the same person. |
| |
(3) | In relation to a claim under paragraph 29 in respect of that amount— |
| 10 |
(a) | the references to the claimant in paragraph 30(5), (6) and (7) (Cases |
| |
D, E and F) have effect as if they included the taxpayer, |
| |
(b) | the reference to the claimant in paragraph 30(8) (case G) has effect as |
| |
if it were a reference to the taxpayer, |
| |
(c) | the reference to the claimant in paragraph 33(1)(b) has effect as if it |
| 15 |
were a reference to the taxpayer, and |
| |
(d) | references to tax in Schedule 11A to FA 2003 (as it applies to a claim |
| |
under paragraph 29) include the amount paid under the contract |
| |
| |
(4) | Sub-paragraph (5) applies where the grounds for giving effect to a claim by |
| 20 |
the payer in respect of the amount also provide grounds for a discovery |
| |
assessment on the taxpayer in respect of any single-dwelling interest. |
| |
(5) | The Commissioners for Her Majesty’s Revenue and Customs may set any |
| |
amount repayable to the payer as a result of the claim against any amount |
| |
payable by the taxpayer as a result of the assessment. |
| 25 |
(6) | The obligations of the Commissioners for Her Majesty’s Revenue and |
| |
Customs and the taxpayer are discharged to the extent of any set-off under |
| |
| |
(7) | “Contract settlement” means an agreement made in connection with any |
| |
person’s liability to make a payment to the Commissioners for Her Majesty’s |
| 30 |
Revenue and Customs under or by virtue of an enactment. |
| |
| |
| |
| |
35 (1) | An appeal may be brought against— |
| 35 |
(a) | an amendment of a self assessment under paragraph 10 (amendment |
| |
during enquiry to prevent loss of tax), |
| |
(b) | a conclusion stated or amendment made by a closure notice (see |
| |
| |
(c) | an HMRC determination under paragraph 18 (determination of tax |
| 40 |
chargeable if no return delivered), |
| |
(d) | a discovery assessment (see paragraph 21), or |
| |
(e) | an assessment under paragraph 22 (assessment to recover excessive |
| |
| |
| |
| |
|
