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Procedures on appeal |
| | 11. - (1) Subject to the following provisions of this paragraph, the following provisions of the Management Act shall apply for the purposes of and in relation to appeals to the Special Commissioners under paragraph 9 above as they apply for the purposes of or in relation to appeals to the Special Commissioners under the Tax Acts, that is to say-
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(a) section 46A (regulations about the jurisdiction of the Special Commissioners); |
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(b) section 54 (settling appeals by agreement); |
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(c) section 56A (appeals from the Special Commissioners); |
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(d) sections 56B to 56D (regulations about practice and procedure etc.). |
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(2) The Special Commissioners (Jurisdiction and Procedure) Regulations 1994 shall have effect, with the necessary modifications, in relation to appeals to the Special Commissioners under this Schedule as they have effect in relation to appeals to the Special Commissioners under the Tax Acts; but this sub-paragraph shall be without prejudice to the power of the Lord Chancellor, by virtue of sub-paragraph (1) above, to modify those regulations as applied by this sub-paragraph.
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(3) Subject to paragraph 5 above and the provisions applied by sub-paragraphs (1) and (2) above, the determination of the Special Commissioners on an appeal under this Schedule shall be final and conclusive.
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(4) Where an appeal has been made to the Special Commissioners against a decision of the Board on a claim under paragraph 8 above, neither the appellant nor the Board shall be entitled, by virtue of anything in sub-paragraph (1) above, to appeal except against so much (if any) of the decision of the Special Commissioners as relates to a point of law arising in connection with the computation in accordance with Schedule 1 to this Act of the amount of the windfall from which any company was benefitting on 2nd July 1997
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(5) Section 53 of the Management Act (appeal against the summary determination of a penalty) shall apply in relation to any summary determination of a penalty pursuant to-
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(a) the regulations applied by sub-paragraph (2) above, or |
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(b) any modification of those regulations made by virtue of this Schedule, |
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as it applies in relation to any other such summary determination as is mentioned in that section.
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(6) Subsections (2B) and (2C) of section 58 of the Management Act (Northern Ireland modifications) shall apply as if the reference to the Taxes Acts included a reference to this Schedule and, accordingly, as if the reference to section 56A of that Act included a reference to that section as applied by this paragraph.
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(7) In the application for the purposes of this Schedule of-
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(a) section 58(2B) and (2C) of the Management Act, and |
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(b) the regulations mentioned in sub-paragraph (2) above, |
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references to proceedings in Northern Ireland shall have effect as references to proceedings on an appeal to the Special Commissioners by a company whose head office or principal place of business is in Northern Ireland.
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(8) Sections 21 and 22 of the Interpretation Act (Northern Ireland) 1954 (rules of court and powers of appellate courts) shall apply as if references in those sections to an enactment included a reference to sub-paragraphs (6) and (7) above.
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Interest |
| | 12. - (1) Where any amount of windfall tax with which a company is charged is not paid before the time by which it is required to be paid under paragraph 3 above, that amount of that tax shall carry interest from that time until payment.
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(2) Sub-paragraph (1) above applies to an amount whether or not the payment of that amount is postponed under section 55 of the Management Act (as applied by paragraph 9(6) above).
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(3) Any amount paid by way of windfall tax which is repayable shall carry interest from whichever is the later of-
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(a) the time by which that amount was required to be paid under paragraph 3 above, and |
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(b) the time when that amount was in fact paid, |
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until the time when that amount is repaid.
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(4) The rate of interest under this paragraph for any period shall be-
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(a) in the case of interest under sub-paragraph (1) above, the rate applicable under section 178 of the Finance Act 1989 for the purposes of section 87A of the Management Act (interest on unpaid corporation tax); and |
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(b) in the case of interest under sub-paragraph (3) above, the rate applicable under section 178 of the Finance Act 1989 for the purposes of section 826 of the Taxes Act 1988 (interest on overpaid corporation tax). |
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(5) Where any amount paid by way of windfall tax is repayable to a person who has paid interest under sub-paragraph (1) above, that person shall be entitled to a repayment of so much of that interest as would represent the interest paid on that amount if, after-
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(a) making an appropriate apportionment of the payments made to the Board between the instalments due from the person making them, and |
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(b) taking account of any previous repayment, |
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it is assumed that the amount repayable is to be equated with the most recent payment or payments made to the Board.
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(6) Interest under sub-paragraph (1) above-
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(a) shall be paid without any deduction of income tax; and |
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(b) shall not be allowed as a deduction in computing income, profits or losses for any of the purposes of the Tax Acts; |
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and interest paid under sub-paragraph (3) above shall be disregarded in computing income, profits or losses for any such purposes.
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Collection of information |
| | 13. - (1) For the purposes of this Part, section 20 of the Management Act (power to call for documents of taxpayer and others), together with sections 20B, 20BB and 20D(3) of that Act so far as they relate to section 20, shall be deemed to apply with the modifications set out in sub-paragraph (2) below.
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(2) Those modifications are as follows-
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(a) references to a tax liability shall be deemed to be references to a liability to pay an amount of windfall tax; |
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(b) references to an inspector shall be deemed to be references to any officer of the Board and references to the Taxes Acts shall be deemed to be references to this Part; |
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(c) in sections 20(7) and (8H) and 20B(1B) and (6)(b), the words "General or" shall be deemed to be omitted. |
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(3) For the purposes of this Part subsection (1) of section 98 of the Management Act (failure to comply with notice) shall apply as if this paragraph were included in the reference in column 1 of the Table in that section to Part III of that Act.
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Penalties for furnishing false information |
| | 14. - (1) Where a chargeable company fraudulently or negligently delivers an incorrect return in response to a requirement under paragraph 1 above, that company shall be liable to a penalty of an amount not exceeding the understated amount.
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(2) In sub-paragraph (1) above "the understated amount", in relation to a return delivered by a chargeable company, means the amount (if any) by which the amount of windfall tax with which that company is charged exceeds the amount set out in the return as the amount with which it is charged.
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(3) For the purposes of this Part-
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(a) subsection (2) of section 98 of the Management Act (penalties for furnishing incorrect information etc.) shall apply as if the provisions of this Schedule (except paragraph 1) were specified in one of the columns of the Table in that section; and |
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(b) section 99 of that Act (penalty for assisting in preparation of incorrect return) shall apply as if the reference in paragraph (a) of that section to tax included a reference to windfall tax. |
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(4) Section 97(1) of the Management Act (obligation to correct incorrect return) shall apply for the purposes of this paragraph in relation to a return delivered in response to a requirement under paragraph 1 above as it applies for the purposes of section 96 of that Act in relation to such a return as is mentioned in that section.
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Recovery of tax |
| | 15. - (1) The provisions of the Management Act which are set out in sub-paragraph (2) below (which all relate to the recovery of tax) shall apply, subject to the modifications set out in sub-paragraph (3) below, in relation to-
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(a) amounts of windfall tax due from any company, |
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(b) any penalty under this Schedule, or |
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(c) any interest for which a company is liable under paragraph 12 above or 17(5)(g) below, |
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as they apply in relation to sums charged by way of tax; and, in the case of amounts falling within paragraph (b) or (c) above, those provisions shall so apply as if those amounts were amounts of tax due and payable under an assessment.
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(2) The provisions applied by sub-paragraph (1) above are-
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(a) section 61 (distraint); |
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(b) sections 63 and 63A (recovery in Scotland); |
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(c) sections 66 to 68 (court proceedings for the recovery of tax); |
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(d) section 70(1) (certificate of non-payment); and |
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(e) section 70A (payment by cheque). |
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(3) The modifications mentioned in that sub-paragraph are as follows-
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(a) in all those provisions references to the collector shall be deemed to include references to any other officer of the Board; |
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(b) in section 63, the words "under section 60 of this Act" in subsection (1)(b) shall be deemed to be omitted and so shall subsections (3) and (4); and |
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(i) the reference in subsection (1) to the purposes of the Management Act and the provisions mentioned in subsection (2) of that section shall be deemed to be a reference to the purposes of this Part; and
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(ii) subsection (2) shall be deemed to be omitted.
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Recovery against other group members |
| | 16. - (1) Subject to sub-paragraph (3) below, where any amount of windfall tax with which a company is charged is not paid before the end of the period of six months beginning with the time by which it was required to be paid under paragraph 3 above ("the six month period"), any company falling within sub-paragraph (2) below may be assessed (in the name of the chargeable company) to all or any part of the unpaid windfall tax with which the chargeable company is charged.
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(2) A company falls within this sub-paragraph if it is one or other or both of the following, that is to say-
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(a) a member of the same group as the chargeable company at the end of the six month period; or |
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(b) a company which has been a member of the same group as the chargeable company at some time on or after 2nd July 1997 and before the end of the six month period. |
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(3) A company shall not be assessed under sub-paragraph (1) above to any amount of windfall tax at any time more than two years after that company first became assessable to that amount under that sub-paragraph.
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(4) This Schedule shall have effect for the purposes of, and in relation to, an assessment under sub-paragraph (1) above as if the amount to which a company is assessable under this paragraph were an amount of windfall tax with which that company is charged.
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(5) Where, by virtue of this paragraph, any company ("the group member") pays any amount of windfall tax with which another company ("the charged company") is charged-
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(a) that payment shall discharge the liability of the charged company to pay that amount of windfall tax; but |
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(b) the group member shall be entitled to recover from the charged company the whole amount paid, together with any interest paid by the group member on that amount by virtue of paragraph 12 above. |
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General provisions about penalties etc. |
| | 17. - (1) Where a company which has become liable to a tax-geared penalty subsequently becomes liable to another such penalty, the amount or, as the case may be, maximum amount of the subsequent penalty shall be treated as reduced so that the aggregate of the tax-geared penalties to which the company has become liable does not exceed the greater or greatest of them.
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(2) In sub-paragraph (1) above "tax-geared penalty" means (subject to sub-paragraph (3) below)-
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(a) a penalty under paragraph 2(1) or 14(1) above; or |
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(b) a penalty under paragraph 2(2) above falling within paragraph 2(3)(b) or (c) above. |
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(3) Where a company has become liable to both-
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(a) a penalty falling within paragraph 2(3)(b) above; and |
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(b) a penalty falling within paragraph 2(3)(c) above, |
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the aggregate of those penalties shall be treated as only one tax-geared penalty for the purposes of sub-paragraph (1) above.
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(4) The provisions of the Management Act set out in sub-paragraph (5) below shall apply, subject to the modifications set out in sub-paragraph (6) below, in relation to penalties under this Schedule as they apply in relation to the penalties mentioned in those provisions.
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(5) The provisions applied by sub-paragraph (4) above are-
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(a) section 100 (determination of penalties); |
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(b) section 100A(2) and (3) (provision supplementary to section 100); |
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(c) section 100C (penalty proceedings before Commissioners); |
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(d) section 100D (penalty proceedings before courts); |
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(e) section 102 (mitigation of penalties); |
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(f) section 103 (time limit for penalty proceedings); and |
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(g) section 103A (interest on penalties). |
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(6) The modifications mentioned in that sub-paragraph are-
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(a) in section 100(2), for the words from "a penalty" onwards there shall be deemed to be substituted a reference to a penalty by virtue of paragraph 13(3) above; |
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(b) subsection (6) of section 100 shall be deemed to be omitted; |
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(c) in section 100A(3), the reference to tax shall be deemed to be a reference to windfall tax; |
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(d) in section 100C(1), the words "General or" shall be deemed to be omitted; and |
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(e) in section 103, the references to tax in subsection (1) shall be deemed to be references to windfall tax, and subsection (2) shall be deemed to be omitted. |
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(7) An appeal may be brought against any determination under section 100 of the Management Act of a penalty under this Schedule.
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(8) Subject to sub-paragraph (9) below, the provisions of this Schedule relating to an appeal against an assessment to windfall tax shall apply (with the necessary modifications) in relation to any appeal under sub-paragraph (7) above.
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(9) Paragraph 10 above shall not apply to an appeal under sub-paragraph (7) above and the powers of the Special Commissioners on an appeal under that sub-paragraph shall be those set out in section 100B(2)(a) and (b) of the Management Act.
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(10) Subsection (3) of section 100B of the Management Act (further appeals) shall apply where there has been an appeal under sub-paragraph (7) above as it applies where there has been an appeal under subsection (1) of that section.
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(11) The liabilities of any person under this Part shall be without prejudice to any criminal liability arising in relation to the same matter.
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Miscellaneous applications |
| | 18. - (1) The provisions of the Management Act which are set out in sub-paragraph (2) below shall apply for the purposes of this Schedule-
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(a) as they apply for the purposes of the enactments for the purposes of which they have effect apart from this paragraph; but |
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(b) as if any reference in those provisions to a tax included a reference to windfall tax. |
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(2) Those provisions are-
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(a) section 75 (receivers); |
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(b) section 105 (evidence in cases of fraudulent conduct); |
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(c) section 108 (company officers); |
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(d) section 112 (lost documents etc.); |
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(e) section 113(3) (prescription of form of assessments, penalty determinations); |
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(f) section 114 (provision for errors not to invalidate an assessment); |
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(g) section 115 (delivery and service of documents) and the regulations made under that section; and |
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(h) section 118(2) and (4) (extensions of time, reasonable excuse for delay and finality of assessments). |
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Interpretation |
| | 19. - (1) In this Schedule-
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"the Board" means the Commissioners of Inland Revenue; |
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"chargeable company" means a company which, on 2nd July 1997, was benefitting from a windfall from the flotation of an undertaking whose privatisation involved the imposition of economic regulation; |
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"group" means a parent undertaking (within the meaning of the Companies Act 1985 or the Companies (Northern Ireland) Order 1986), together with all of its subsidiary undertakings; |
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"the Management Act" means the Taxes Management Act 1970; |
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"notice" means notice in writing; |
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"Special Commissioners" has the same meaning as in the Tax Acts. |
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(2) In this Schedule references to the repayment of an amount of windfall tax include references to making an allowance by way of set-off of an amount of windfall tax against any liability.
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(3) References in this Schedule to a penalty under this Schedule include references to a penalty under a provision of the Management Act as applied by this Schedule.
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