Finance (No. 2) Bill (HC Bill 190)

(5) In subsection (3)(c) “specified disclosure provision” means a disclosure
provision that is specified in the notice; and for this purpose “disclosure
provision” means any of the following—

(a) 40section 308 of FA 2004 (disclosure of tax avoidance schemes: duties of
promoter);

(b) section 312 of FA 2004 (duty of promoter to notify client of number);

(c) sections 313ZA and 313ZB of FA 2004 (duties to provide details of
clients and certain others);

(d) 45Part 1 of Schedule 36 to FA 2008 (duties to provide information and
produce documents).

(6) In subsection (4)(b) “fail”, in relation to arrangements or proposed
arrangements, means not result in a tax advantage which the arrangements or
(as the case may be) proposed arrangements might be expected to result in.

(7) The Treasury may by regulations amend the definition of “disclosure
provision” in subsection (5).

232 Section 231: supplementary

(1) In section 231 the following expressions are to be interpreted as follows.

(2) 5“Adequate” means adequate having regard to what it might be reasonable for
a client or (as the case may be) an intermediary to expect; and “adequacy” is to
be interpreted accordingly.

(3) A person (“C”) is a “client” of a promoter, if at any time when a conduct notice
has effect, the promoter—

(a) 10makes a firm approach to C in relation to a relevant proposal with a
view to the promoter making the proposal available for
implementation by C or another person;

(b) makes a relevant proposal available for implementation by C;

(c) takes part in the organisation or management of relevant arrangements
15entered into by C.

(4) The recipient of a conduct notice “promotes” a relevant proposal if it—

(a) takes part in designing the proposal,

(b) makes a firm approach to a person in relation to the proposal with a
view to making the proposal available for implementation by that
20person or another person, or

(c) makes the proposal available for implementation by persons (other
than the recipient).

(5) The recipient of a conduct notice “promotes” relevant arrangements if it takes
part in designing, organising or managing the arrangements.

233 25Amendment or withdrawal of conduct notice

(1) This section applies where a conduct notice has been given to a person.

(2) An authorised officer may at any time amend the notice.

(3) An authorised officer—

(a) may withdraw the notice if the officer thinks it is not necessary for it to
30continue to have effect, and

(b) in considering whether or not that is necessary must take into account
the person’s record of compliance, or failure to comply, with the
conditions in the notice.

234 Duration of conduct notice

(1) 35A conduct notice has effect from the date specified in it as its commencement
date.

(2) A conduct notice ceases to have effect—

(a) at the end of the period of two years beginning with its commencement
date, or

(b) 40if an earlier date is specified in it as its termination date, at the end of
that day.

(3) A conduct notice ceases to have effect if withdrawn by an authorised officer
under section 233.

(4) A conduct notice ceases to have effect in relation to a person when a
monitoring notice takes effect in relation to that person.

5Monitoring notices: procedure and publication

235 Monitoring notices: duty to apply to tribunal

(1) If—

(a) a conduct notice has effect in relation to a person who is carrying on a
business as a promoter, and

(b) 10an authorised officer determines that the person has failed to comply
with one or more conditions in the notice,

the authorised officer must apply to the tribunal for approval to give the
person a monitoring notice.

(2) An application under subsection (1) must include a draft of the monitoring
15notice.

(3) Subsection (1) does not apply if—

(a) the condition (or all the conditions) mentioned in subsection (1)(b) were
imposed under subsection (3)(a), (b) or (c) of section 231, and

(b) the authorised officer considers that the failure to comply with the
20condition (or all the conditions, taken together) is such a minor matter
that it should be disregarded for the purposes of this section.

(4) Where an authorised officer makes an application to the tribunal under
subsection (1), the officer must at the same time give notice to the person to
whom the application relates.

(5) 25The notice under subsection (4) must state which condition (or conditions) the
authorised officer has determined under subsection (1)(b) that the person has
failed to comply with and the reasons for that determination.

236 Monitoring notices: tribunal approval

(1) On an application under section 235, the tribunal may approve the giving of a
30monitoring notice only if—

(a) the tribunal is satisfied that, in the circumstances, the authorised officer
would be justified in giving the monitoring notice, and

(b) the person to whom the monitoring notice is to be given (“the affected
person”) has been given a reasonable opportunity to make
35representations to the tribunal.

(2) The tribunal may amend the draft notice included with the application under
section 235.

(3) If the representations that the affected person makes to the tribunal include a
statement that in the affected person’s view it was not reasonable to include the
40condition mentioned in section 235(1)(b) in the conduct notice, the tribunal
must refuse to approve the giving of the monitoring notice if it is satisfied that
it was not reasonable to include that condition (but see subsection (4)).

(4) If the representations made to the tribunal include the statement described in
subsection (3) and the determination under section 235(1)(b) is a determination
that there has been a failure to comply with more than one condition in the
conduct notice—

(a) 5subsection (3) does not apply, but

(b) in deciding whether or not to approve the giving of the monitoring
notice, the tribunal is to assume, in the case of any condition that the
tribunal considers it was not reasonable to include in the conduct
notice, that there has been no failure to comply with that condition.

237 10Monitoring notices: content and issuing

(1) Where the tribunal has approved the giving of a monitoring notice, the
authorised officer must give the notice to the person to whom it relates.

(2) A monitoring notice given under subsection (1) or paragraph 9 or 10 of
Schedule 32 must—

(a) 15explain the effect of the monitoring notice and specify the date from
which it takes effect;

(b) inform the recipient of the right to request the withdrawal of the
monitoring notice under section 238.

(3) In addition, a monitoring notice must—

(a) 20if given under subsection (1), state which condition (or conditions) it
has been determined the person has failed to comply with and the
reasons for that determination;

(b) if given under paragraph 9 or 10 of Schedule 32, state the date of the
original monitoring notice and name the partnership to which that
25notice was given.

(4) The date specified under subsection (2)(a) must not be earlier than the date on
which the monitoring notice is given.

(5) In this Part, a person in relation to whom a monitoring notice has effect is called
a “monitored promoter”.

238 30Withdrawal of monitoring notice

(1) A person in relation to whom a monitoring notice has effect may, at any time
after the end of the period of 12 months beginning with the end of the appeal
period, request that the notice should cease to have effect.

(2) The “appeal period” means—

(a) 35the period during which an appeal could be brought against the
approval by the tribunal of the giving of the monitoring notice, or

(b) where an appeal mentioned in paragraph (a) has been brought, the
period during which that appeal has not been finally determined,
withdrawn or otherwise disposed of.

(3) 40A request under this section is to be made in writing to an authorised officer.

(4) Where a request is made under this section, an authorised officer must within
30 days beginning with the day on which the request is received determine
either—

(a) that the monitoring notice is to cease to have effect, or