Finance (No. 2) Bill (HL Bill 156)

except to the extent of the quantified amount, in the making of a relevant
determination.

(3) In sub-paragraph (2) “the quantified amount” means the amount (if any)
which is shown by P to constitute the amount that would appropriately
5compensate P for loss or damage shown by P to have resulted from the
making of the mistaken assumptions.

(4) A “relevant determination” means a determination for the purposes of
paragraph 9(2) as to—

(a) whether or to what extent the repayment of an amount would enrich
10P, or

(b) whether or to what extent an enrichment of P would be unjust.

(5) The reference in sub-paragraph (2) to provision relating to soft drinks
industry levy is a reference to any provision made by or under any
enactment which relates to the levy or to any matter connected with it.

15Reimbursement arrangements

11 (1) The Commissioners may by regulations make provision for reimbursement
arrangements to be disregarded for the purposes of paragraph 9(2) except
where the arrangements—

(a) contain such provision as may be required by the regulations, and

(b) 20are supported by such undertakings to comply with the
arrangements as may be required by the regulations to be given to
the Commissioners.

(2) In this paragraph “reimbursement arrangements” means arrangements for
the purposes of a claim to a repayment of soft drinks industry levy which—

(a) 25are made by a person for the purpose of securing that the person is
not unjustly enriched by the repayment of any amount in pursuance
of the claim, and

(b) provide for the reimbursement of a person who has for practical
purposes borne the whole or any part of the cost of the original
30payment of that amount to the Commissioners.

(3) Regulations under this paragraph may include provision requiring
reimbursement arrangements to contain provision—

(a) requiring a reimbursement for which the arrangements provide to be
made within a specified period after the repayment to which it
35relates;

(b) for the repayment of amounts to the Commissioners where those
amounts are not reimbursed in accordance with the arrangements;

(c) requiring interest paid by the Commissioners on any amount repaid
by them to be treated in the same way as that amount for the
40purposes of any requirement under the arrangements to reimburse
or repay the Commissioners;

(d) requiring records of a specified description relating to the
arrangements to be kept and produced to the Commissioners, or to
an officer of Revenue and Customs;

(e) 45imposing obligations on specified persons for the purposes of
provision made under paragraphs (a) to (d).

(4) Regulations under this paragraph may—

(a) make provision about the form, manner and timing of undertakings
given to the Commissioners in accordance with the regulations, and

(b) provide for those matters to be determined by the Commissioners in
accordance with the regulations.

5Assessment for excessive repayment

12 (1) Sub-paragraph (3) applies where—

(a) an amount has been paid at any time to a person by way of a
repayment of soft drinks industry levy, and

(b) the amount paid exceeded the amount which the Commissioners
10were liable at that time to repay to that person.

(2) Sub-paragraph (3) also applies where a person is liable to pay any amount
to the Commissioners in pursuance of an obligation imposed by regulations
under paragraph 11(3)(b), (c) or (e).

(3) The Commissioners may—

(a) 15to the best of their judgment, assess the amount of the excess (in a
case within sub-paragraph (1)) or the amount due (in a case within
sub-paragraph (2)), and

(b) notify the amount to the person.

(4) Subject to sub-paragraph (5), where—

(a) 20an assessment is made on any person under this paragraph in respect
of a repayment of soft drinks industry levy, and

(b) the Commissioners have power under Part 1 of this Schedule to
make an assessment on that person as to an amount of the levy due
from that person,

25the assessments may be combined and notified to the person as one
assessment.

(5) A notice of a combined assessment under sub-paragraph (4) must separately
identify the amount being assessed in respect of repayments of soft drinks
industry levy.

30Supplementary assessments

13 (1) Sub-paragraph (2) applies where—

(a) an assessment has been notified to a person under paragraph 12, and

(b) it appears to the Commissioners that the amount which ought to
have been assessed as due exceeds the amount that has already been
35assessed.

(2) The Commissioners may—

(a) on or before the last day on which the assessment under paragraph
12 could have been made, make a supplementary assessment of the
amount of soft drinks industry levy due from the person, and

(b) 40notify the amount to that person.

Further provision about assessments under paragraphs 12 and 13

14 (1) Where an amount has been assessed and notified to a person under
paragraph 12 or 13, it is recoverable on the basis that it is an amount of soft
drinks industry levy due from that person.

(2) But sub-paragraph (1) does not have effect if, or to the extent that, the
assessment has been withdrawn or reduced.

Time limits for assessments

15 An assessment under paragraph 12 or 13 may not be made more than 2 years
5after evidence of facts sufficient in the opinion of the Commissioners to
justify making the assessment comes to their knowledge.

Part 3 Further provision about notices etc.

Notifications to a person’s representative

16 (1) 10A notice of an assessment under paragraph 2, 5, 12 or 13 given to a person’s
representative is to be treated for the purposes of this Schedule as a notice
given to the person in relation to whom the representative acts.

(2) In sub-paragraph (1), “representative”, in relation to a person, means—

(a) any of that person’s personal representatives,

(b) 15that person’s trustee in bankruptcy, interim or permanent trustee or
liquidator;

(c) any person holding office as receiver in relation to that person or any
of that person’s property;

(d) any other person acting in a representative capacity in relation to that
20person.

Service of notices

17 A notice under this Schedule may be given to a person by sending it to that
person by post, addressed to the person’s last known address.

Section 99

SCHEDULE 21 25Soft drinks industry levy: requirements to keep records etc: penalties

Part 1 Penalties

Sections 94(2) and 99(1): requirements imposed by regulations

1 (1) A person who fails to comply with a requirement imposed by regulations
30under section 94(2) or 99(1)(a) is liable to a penalty.

(2) The amount of the penalty is equal to the relevant amount multiplied by the
number of days on which the failure continues (up to a maximum of 100
days) or, if it is greater, to a penalty of £50.

(3) In relation to a failure by a person to comply with the requirement, the
35amount of the penalty is to be determined by reference to the number of

occasions in the period of 2 years preceding the beginning of the failure on
which the person has previously failed to comply with that requirement.

(4) But—

(a) a continuing failure to comply with a requirement is to be regarded
5as one occasion of failure occurring on the date on which the failure
began;

(b) if the same omission gives rise to a failure to comply with more than
one such requirement, it is to be regarded as the occasion of only one
failure.

(5) 10The relevant amount is—

(a) if there has been no previous occasion of failure in the period
mentioned in sub-paragraph (3), £5;

(b) if there has been only one such occasion in that period, £10; and

(c) in any other case, £15.

(6) 15A person who fails to comply with a requirement to preserve records
imposed by regulations under section 99(1)(b) is liable to a penalty of £500.

(7) If by reason of conduct falling within sub-paragraph (1) or (6) a person is
assessed to a penalty for a deliberate inaccuracy under Schedule 24 to FA
2007, that conduct does not also give rise to a penalty under this paragraph.

20Section 99(2): requirements imposed by directions

2 (1) A person who fails to comply with a requirement imposed under section
99(2)(a) is liable to a penalty.

(2) The amount of the penalty is equal to £200 multiplied by the number of days
on which the failure continues (up to a maximum of 30 days).

(3) 25A person who fails to comply with a requirement imposed under section
99(3)(b) is liable to a penalty of £500.

(4) If by reason of conduct falling within sub-paragraph (1) or (3) a person is
assessed to a penalty for a deliberate inaccuracy under Schedule 24 to FA
2007, that conduct does not also give rise to a penalty under this paragraph.

30Power to alter amounts specified in paragraphs 1 and 2

3 (1) If it appears to the Treasury that there has been a change in the value of
money since the last relevant date, they may by regulations substitute for the
sums specified in paragraph 1(2), (5)(a) to (c) and (6) and paragraph 2(2) and
(3) such other sums as appear to them to be justified by the change.

(2) 35But regulations under sub-paragraph (1) may not apply to a failure which
began before the date on which the regulations come into force.

(3) The “relevant date”, in relation to a specified sum, means—

(a) the date on which this Act is passed, and

(b) each date on which the power conferred by sub-paragraph (1) has
40been exercised in relation to that sum.

Reasonable excuse

4 (1) A failure by any person to comply with any requirement mentioned in
paragraph 1 or 2 does not give rise to a liability to a penalty under this
Schedule if the person concerned satisfies—

(a) 5the Commissioners, or

(b) on appeal, a tribunal,

that there is a reasonable excuse for the failure.

(2) A failure for which there is a reasonable excuse is to be disregarded for the
purposes of paragraph 1(5).

(3) 10For the purposes of this paragraph, in the case of a person (P)—

(a) an insufficiency of funds is not a reasonable excuse unless
attributable to events outside P’s control;

(b) where P relies on another person to do anything, that is not a
reasonable excuse unless P took reasonable care to avoid the relevant
15failure;

(c) where P had a reasonable excuse for the failure but the excuse has
ceased, P is to be treated as having continued to have the excuse if the
failure is remedied without unreasonable delay after the excuse
ceased.

20Part 2 Assessments

Power to make assessments

5 (1) Where a person becomes liable for a penalty under this Schedule—

(a) the Commissioners may assess the penalty, and

(b) 25if they do so, they must notify the amount to that person.

(2) Where a person is liable to a penalty under paragraph 1 for failure to comply
with a requirement imposed by regulations under section 94(2) or 99, no
assessment of the penalty may be made under this paragraph unless—

(a) the Commissioners have given the person written notice of the
30consequences of a continuing failure to comply with that
requirement, and

(b) the notice has been given during the period of 2 years preceding the
assessment.

(3) A notice under sub-paragraph (1) must specify a date, being not later than
35the date of the notice, to which the amount of the penalty is calculated.

(4) If the penalty continues to accrue after that date, a further assessment or
assessments may be made under this paragraph in respect of the accrued
amounts.

(5) If, within such period as may be notified by the Commissioners to the person
40liable to a penalty, the failure to comply with a requirement imposed by
regulations under section 94(2), or by regulations or a direction under 99, is
remedied, it is to be treated as remedied on the date specified under sub-
paragraph (3).

Supplementary assessments

6 (1) Sub-paragraph (2) applies where—

(a) an assessment has been notified to a person under paragraph 5, and

(b) it appears to the Commissioners that the amount which ought to
5have been assessed as due exceeds the amount that has already been
assessed.

(2) The Commissioners may—

(a) make a supplementary assessment of the amount due from the
person, and

(b) 10notify the amount to that person.

Further provision about assessments under this Schedule

7 (1) Where an amount has been assessed and notified to a person under
paragraph 5 or 6, it is recoverable on the basis that it is an amount of soft
drinks industry levy due from that person.

(2) 15But sub-paragraph (1) does not have effect if, or to the extent that, the
assessment has been withdrawn or reduced.

Time limits for assessments

8 (1) An assessment under paragraph 5 may not be made after the end of the
relevant period.

(2) 20Except in a case within sub-paragraph (3), the relevant period is the period
of 4 years from the end of the accounting period to which the assessment
relates.

(3) Where an assessment of an amount due from a person in a case involving
loss of soft drinks industry levy—

(a) 25brought about deliberately by the person, or

(b) attributable to a failure by the person to comply with a requirement
imposed by regulations under section 99 (records),

the relevant period is the period of 20 years from the end of the accounting
period to which the assessment relates.

(4) 30In sub-paragraph (3)(a) the reference to loss brought about deliberately by a
person includes a reference to a loss brought about as a result of the
deliberate inaccuracy in a document given to HMRC by the person.

(5) In sub-paragraphs (3) and (4) references to a loss brought about by a person
include references to a loss brought about by another person acting on behalf
35of that person.

Further provision about notices

9 (1) A notice of an assessment under paragraph 5 or 6 given to a person’s
representative is to be treated for the purposes of this Schedule as a notice
given to the person in relation to whom the representative acts.

(2) 40In this paragraph “representative”, in relation to a person, has the meaning
given by paragraph 16(2) of Schedule 20.

10 A notice under this Schedule may be given to a person by sending it to that
person by post, addressed to the person’s last known address.

Section 101

SCHEDULE 22 Soft drinks industry levy: appeals and reviews

5Part 1 Appealable decisions

Appealable decisions

1 A person may appeal against a decision of the Commissioners or an officer
of Revenue and Customs in respect of any of the following matters—

(a) 10whether or not a person is liable to pay an amount of soft drinks
industry levy;

(b) whether or not the Commissioners are liable to repay an amount to a
person under paragraph 8(2) of Schedule 20 (overpaid levy);

(c) whether or not the repayment of an amount under that paragraph is
15excessive (see paragraph 12 of that Schedule);

(d) whether or not a person is liable to pay an amount to the
Commissioners in pursuance of an obligation imposed by
regulations under paragraph 11(3)(b), (c) or (e) of Schedule 20
(reimbursement arrangements);

(e) 20whether or not a person is liable to a penalty under paragraph 1(1) or
(6) or 2(1) or (3) of Schedule 21 (requirements to keep records etc:
penalties);

(f) the amount of soft drinks industry levy payable by a person;

(g) the amount that the Commissioners are liable to repay to a person
25under paragraph 8(2) of Schedule 20;

(h) where repayment of an amount under that paragraph is excessive,
the amount of the excess;

(i) the amount that a person is liable to pay to the Commissioners in
pursuance of an obligation imposed by regulations under paragraph
3011(3)(b), (c) and (e) of Schedule 20;

(j) the amount of a penalty payable under paragraph 1(1) or (6) or 2(1)
or (3) of Schedule 21;

(k) the determination of a dilution ratio under section 73(2)(b);

(l) the registration, or cancellation of registration, of a person under this
35Part for the purposes of soft drinks industry levy;

(m) the period by reference to which payments of soft drinks industry
levy are to be made;

(n) a person’s entitlement to a tax credit, the withdrawal of a tax credit,
the amount of a tax credit or the period for which a tax credit is to be
40brought into account under regulations under section 85;

(o) the giving of a direction by the Commissioners under section 99(2)
(keeping and preserving records).

Part 2 Reviews

Offer of review

2 (1) HMRC must offer a person (P) a review of a decision that has been notified
5to P if an appeal in respect of the decision may be brought under paragraph
1.

(2) The offer of the review must be made by notice given to P at the same time
as the decision is notified to P.

(3) This paragraph does not apply to the notification of the conclusions of a
10review.

Right to require review

3 (1) Any person (other than P) who has the right of appeal under paragraph 1
against a decision may require HMRC to review that decision if that person
has not appealed to the appeal tribunal.

(2) 15A notification that such a person requires a review must be made within 30
days of that person becoming aware of the decision.

Review by HMRC

4 (1) HMRC must review a decision if—

(a) they have offered a review of the decision under paragraph 2, and

(b) 20P notifies HMRC accepting the offer within 30 days from the date of
the document containing the notification of the offer.

(2) But P may not notify acceptance of the offer if P has already appealed to the
appeal tribunal under paragraph 1.

(3) HMRC must review a decision if a person other than P notifies them under
25paragraph 3.

(4) HMRC may not review a decision if P, or another person, has appealed to
the appeal tribunal under paragraph 1 in respect of the decision.

Extensions of time

5 (1) If under paragraph 2 HMRC have offered P a review of a decision, HMRC
30may within the relevant period notify P that the relevant period is extended.

(2) If under paragraph 3 another person may require HMRC to review a matter,
HMRC may within the relevant period notify the other person that the
relevant period is extended.

(3) If notice is given the relevant period is extended to the end of 30 days from—

(a) 35the date of the notice, or

(b) any other date set out in the notice or a further notice.

(4) In this paragraph “relevant period” means—

(a) the period of 30 days referred to in—

(i) paragraph 4(1)(b) (in a case falling within sub-paragraph (1)),
or

(ii) paragraph 3(2) (in a case falling within sub-paragraph (2)), or

(b) if notice has been given under sub-paragraph (1) or (2), that period
5as extended (or as most recently extended) in accordance with sub-
paragraph (3).

Review out of time

6 (1) This paragraph applies if—

(a) HMRC have offered a review of a decision under paragraph 2 and P
10does not accept the offer within the time allowed under paragraph
4(1)(b) or 5(3), or

(b) a person who requires a review under paragraph 3 does not notify
HMRC within the time allowed under that paragraph or paragraph
5(3).

(2) 15HMRC must review the decision under paragraph 4 if—

(a) after the time allowed, P, or the other person, notifies HMRC in
writing requesting a review out of time,

(b) HMRC are satisfied that P, or the other person, had a reasonable
excuse for not accepting the offer or requiring review within the time
20allowed, and

(c) HMRC are satisfied that P, or the other person, made the request
without unreasonable delay after the excuse had ceased to apply.

(3) HMRC may not review a decision if P, or another person, has appealed to
the appeal tribunal under paragraph 1 in respect of the decision.

25Nature of review etc.

7 (1) This paragraph applies if HMRC are required to undertake a review under
paragraph 4 or 6.

(2) The nature and extent of the review are to be such as appear appropriate to
HMRC in the circumstances.

(3) 30For the purposes of sub-paragraph (2), HMRC must, in particular, have
regard to steps taken before the beginning of the review—

(a) by HMRC in reaching the decision, and

(b) by any person in seeking to resolve disagreement about the decision.

(4) The review must take account of any representations made by P, or the other
35person, at a stage which gives HMRC a reasonable opportunity to consider
them.

(5) The review may conclude that the decision is to be—

(a) upheld,

(b) varied, or

(c) 40cancelled.

(6) HMRC must give P, or the other person, notice of the conclusions of the
review and their reasoning within—

(a) a period of 45 days beginning with the relevant date, or

(b) such other period as HMRC and P, or the other person, may agree.

(7) In sub-paragraph (6) “relevant date” means—

(a) the date HMRC received P’s notification accepting the offer of a
review (in a case falling within paragraph 2), or

(b) the date HMRC received notification from another person requiring
5review (in a case falling within paragraph 3), or

(c) the date on which HMRC decided to undertake the review (in a case
falling within paragraph 6).

(8) Where HMRC are required to undertake a review but do not give notice of
the conclusions within the period specified in sub-paragraph (6), the review
10is to be treated as having concluded that the decision is upheld.

(9) If sub-paragraph (8) applies HMRC must notify P, or the other person, of the
conclusion which the review is treated as having reached.

Service of notices

8 A notice under this Schedule may be given to a person by sending it to that
15person by post, addressed to the person’s last known address.

Part 3 Appeals

“Appeal tribunal”

9 In this Schedule “appeal tribunal” means the First-tier Tribunal or, where
20determined by or under Tribunal Procedure Rules, the Upper Tribunal.

Bringing of appeals

10 (1) An appeal under paragraph 1 is to be made to the appeal tribunal before—

(a) the end of the period of 30 days beginning with—

(i) in a case where P is the appellant, the date of the document
25notifying the decision to which the appeal relates, or

(ii) in a case where a person other than P is the appellant, the date
that person becomes aware of the decision, or

(b) if later, the end of the relevant period (within the meaning of
paragraph 5).

(2) 30But that is subject to sub-paragraphs (3) to (5).

(3) In a case where HMRC are required to undertake a review under paragraph
4—

(a) an appeal may not be made until the conclusion date, and

(b) any appeal is to be made within the period of 30 days beginning with
35the conclusion date.

(4) In a case where HMRC are requested to undertake a review by virtue of
paragraph 6—

(a) an appeal may not be made to the appeal tribunal—

(i) unless HMRC have notified P, or the other person, as to
40whether or not a review will be undertaken, and

(ii) if HMRC have notified P, or the other person, that a review
will be undertaken, until the conclusion date;