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(4) A penalty determined under this paragraph is due and payable at the end of | |
the period of 30 days beginning with the date of issue of the notice of | |
determination. | |
(5) Where an officer of the Board has decided to impose a penalty, and has taken | |
all other decisions needed for arriving at the amount of the penalty, he may | 5 |
entrust to any other officer of the Board responsibility for completing the | |
determination procedure, whether by means involving the use of a | |
computer or otherwise, including responsibility for serving notice of the | |
determination. | |
Alteration of penalty determination | 10 |
3 (1) After notice has been served of the determination of a penalty, the | |
determination cannot be altered except in accordance with this paragraph or | |
on appeal. | |
(2) If it is discovered by an authorised officer that the amount of the penalty is | |
or has become insufficient, the officer may make a determination in a further | 15 |
amount so that the penalty is set at the amount which in the officer’s opinion | |
is correct or appropriate. | |
(3) If in the case of a tax-related penalty it is discovered by an authorised officer | |
that the amount taken into account as the amount of tax is or has become | |
excessive, he may revise the determination so that the penalty is set at the | 20 |
amount that is correct. | |
Where more than the correct amount has already been paid the appropriate | |
amount shall be repaid. | |
(4) In this paragraph an “authorised officer” means an officer of the Board | |
authorised by the Board for the purposes of this paragraph. | 25 |
Liability of personal representatives | |
4 If a person liable to a penalty has died— | |
(a) any determination that could have been made in relation to that | |
person may be made in relation to his personal representatives, and | |
(b) any penalty imposed on them is a debt due from and payable out of | 30 |
the person’s estate. | |
Appeal against penalty determination | |
5 (1) An appeal lies to the General or Special Commissioners against the | |
determination of a penalty. | |
(2) Notice of appeal must be given in writing to the officer of the Board by | 35 |
whom the determination was made within 30 days of the date of issue of the | |
notice of determination. | |
(3) An appeal may be brought out of time with the consent of the Board or the | |
Commissioners. | |
(4) On an application to them for such consent, the Board— | 40 |
(a) shall give their consent if they are satisfied that there was a | |
reasonable excuse for not bringing the appeal within the time limit, | |
and | |
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(b) if they are not so satisfied, shall refer the matter for determination by | |
the Commissioners. | |
(5) 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 a | |
ground not specified in the notice of appeal, and take it into consideration, | 5 |
if satisfied that the omission was not deliberate or unreasonable. | |
(6) On an appeal under this paragraph the Commissioners may— | |
(a) if it appears to them that no penalty has been incurred, set the | |
determination aside; | |
(b) if the amount determined appears to them to be appropriate, confirm | 10 |
the determination; | |
(c) if the amount determined appears to them to be excessive, reduce it | |
to such other amount (including nil) as appears to them to be | |
appropriate; | |
(d) if the amount determined appears to them to be insufficient, increase | 15 |
it to such amount, not exceeding the permitted maximum, as they | |
consider appropriate. | |
Further appeal | |
6 (1) Section 56A of the Taxes Management Act 1970 (c. 9) (general right of appeal | |
on point of law) applies in relation to a decision of the Commissioners under | 20 |
paragraph 5. | |
(2) Without prejudice to that right of appeal, an appeal lies against the amount | |
of a penalty determined by the Commissioners on an appeal under | |
paragraph 5, at the instance of the person liable to the penalty— | |
(a) to the High Court, or | 25 |
(b) in Scotland, to the Court of Session sitting as the Court of Exchequer. | |
(3) On an appeal under sub-paragraph (2) the court has the same powers as are | |
conferred on the Commissioners by paragraph 5(6) above. | |
Penalty proceedings before the court | |
7 (1) Where in the opinion of the Board the liability of a person for a penalty arises | 30 |
by reason of his fraud, or the fraud of another person, proceedings for the | |
penalty may be brought— | |
(a) in the High Court, or | |
(b) in Scotland, in the Court of Session sitting as the Court of Exchequer. | |
(2) Proceedings under this paragraph in England and Wales shall be brought— | 35 |
(a) by and in the name of the Board as an authorised department for the | |
purposes of the Crown Proceedings Act 1947 (c. 44), or | |
(b) in the name of the Attorney General. | |
Any such proceedings shall be deemed to be civil proceedings by the Crown | |
within the meaning of Part 2 of the Crown Proceedings Act 1947. | 40 |
(3) Proceedings under this paragraph in Scotland shall be brought in the name | |
of the Advocate General for Scotland. | |
(4) Proceedings under this paragraph in Northern Ireland shall be brought— | |
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(a) by and in the name of the Board as an authorised department for the | |
purposes of the Crown Proceedings Act 1947 (c. 44) as for the time | |
being in force in Northern Ireland, or | |
(b) in the name of the Advocate General for Northern Ireland. | |
Any such proceedings shall be deemed to be civil proceedings within the | 5 |
meaning of Part 2 of the Crown Proceedings Act 1947 as for the time being | |
in force in Northern Ireland. | |
(5) If in proceedings under this paragraph the court does not find that fraud is | |
proved but considers that the person concerned is nevertheless liable to a | |
penalty, the court may determine a penalty notwithstanding that, but for the | 10 |
opinion of the Board as to fraud, the penalty would not have been a matter | |
for the court. | |
(6) Paragraph 2 (determination of penalty by officer of the Board) does not | |
apply where proceedings are brought under this paragraph. | |
(7) In relation to any time before the coming into force of section 2(1) of the | 15 |
Justice (Northern Ireland) Act 2002 (c. 26), the reference in sub-paragraph | |
(4)(b) to the Advocate General for Northern Ireland shall be read as a | |
reference to the Attorney General for Northern Ireland. | |
Time limit for determination of penalties | |
8 (1) The following time limits apply in relation to the determination of penalties | 20 |
under this Schedule. | |
(2) The general rule is that— | |
(a) no penalty may be determined under paragraph 2 (determination by | |
officer of Board), and | |
(b) no proceedings for a penalty may be brought under paragraph 7 | 25 |
(penalty proceedings before the court), | |
more than six years after the date on which the penalty was incurred or, in | |
the case of a daily penalty, began to be incurred. | |
This rule is subject to the following provisions of this paragraph. | |
(3) Where the amount of a penalty is to be ascertained by reference to the tax | 30 |
chargeable in respect of a transaction, a penalty may be determined under | |
paragraph 2, or proceedings for a penalty may be begun under paragraph 7, | |
at any time within three years after the final determination of the amount of | |
tax by reference to which the amount of the penalty is to be determined. | |
(4) Sub-paragraph (3) does not apply where a person has died and the | 35 |
determination would be made in relation to his personal representatives if | |
the tax was charged in an assessment made more than six years after the | |
effective date of the transaction to which it relates. | |
(5) A penalty under section 96 (penalty for assisting in preparation of incorrect | |
return) may be determined by an officer of the Board, or proceedings for | 40 |
such a penalty may be commenced before a court, at any time within 20 | |
years after the date on which the penalty was incurred. | |
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Schedule 15 | |
Section 104 | |
Stamp duty land tax: partnerships | |
Part 1 | |
General provisions | |
Partnerships | 5 |
1 In this Part of this Act a “partnership” means— | |
(a) a partnership within the Partnership Act 1890 (c. 39), | |
(b) a limited partnership registered under the Limited Partnerships Act | |
1907 (c. 24), or | |
(c) a limited liability partnership formed under the Limited Liability | 10 |
Partnerships Act 2000 (c. 12) or the Limited Liability Partnerships | |
Act (Northern Ireland) 2002 (c. 12 (N. I.)), | |
or a firm or entity of a similar character to any of those mentioned above | |
formed under the law of a country or territory outside the United Kingdom. | |
Legal personality of partnership disregarded | 15 |
2 (1) For the purposes of this Part of this Act— | |
(a) a chargeable interest held by or on behalf of a partnership is treated | |
as held by or on behalf of the partners, and | |
(b) a land transaction entered into for the purposes of a partnership is | |
treated as entered into by or on behalf of the partners, | 20 |
and not by or on behalf of the partnership as such. | |
(2) Sub-paragraph (1) applies notwithstanding that the partnership is regarded | |
as a legal person, or as a body corporate, under the law of the country or | |
territory under which it is formed. | |
Continuity of partnership | 25 |
3 For the purposes of this Part of this Act a partnership is treated as the same | |
partnership notwithstanding a change in membership if any person who | |
was a member before the change remains a member after the change. | |
Partnership not to be regarded as unit trust scheme etc | |
4 A partnership is not to be regarded for the purposes of this Part of this Act | 30 |
as a unit trust scheme or an open ended investment company. | |
Part 2 | |
Ordinary partnership transactions | |
Introduction | |
5 (1) This Part of this Schedule applies to transactions entered into as purchaser | 35 |
by or on behalf of the members of a partnership, other than transactions | |
within Part 3 of this Schedule (transactions excluded from stamp duty land | |
tax). | |
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Responsibility of partners | |
6 (1) Anything required or authorised to be done under this Part of this Act by or | |
in relation to the purchaser under the transaction is required or authorised | |
to be done by or in relation to all the responsible partners. | |
(2) The responsible partners in relation to a transaction are— | 5 |
(a) the persons who are partners at the effective date of the transaction, | |
and | |
(b) any person who becomes a member of the partnership after the | |
effective date of the transaction. | |
(3) This paragraph has effect subject to paragraph 8 (representative partners). | 10 |
Joint and several liability of responsible partners | |
7 (1) Where the responsible partners are liable— | |
(a) to make a payment of tax or to interest on unpaid tax, | |
(b) to make a payment in accordance with an assessment under | |
paragraph 29 of Schedule 10 (recovery of excessive repayment), or | 15 |
(c) to a penalty under this Part of this Act or to interest on such a | |
penalty, | |
the liability is a joint and several liability of those partners. | |
(2) No amount may be recovered by virtue of sub-paragraph (1)(c) from a | |
person who did not become a responsible partner until after the relevant | 20 |
time. | |
(3) The relevant time for this purpose is— | |
(a) in relation to so much of a penalty as is payable in respect of any day, | |
or to interest on so much of a penalty as is so payable, the beginning | |
of that day; | 25 |
(b) in relation to any other penalty, or interest on such a penalty, the time | |
when the act or omission occurred that caused the penalty to become | |
payable. | |
Representative partners | |
8 (1) Anything required or authorised to be done by or in relation to the | 30 |
responsible partners may instead be done by or in relation to any | |
representative partner or partners. | |
(2) This includes making the declaration required by paragraph 1(1)(c) of | |
Schedule 10 or paragraph 2(1)(c) of Schedule 11 (declaration that return or | |
self-certificate is complete and correct). | 35 |
(3) A representative partner means a partner nominated by a majority of the | |
partners to act as the representative of the partnership for the purposes of | |
this Part of this Act. | |
(4) Any such nomination, or the revocation of such a nomination, has effect only | |
after notice of the nomination, or revocation, has been given to the Inland | 40 |
Revenue. | |
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Part 3 | |
Transactions excluded from stamp duty land tax | |
Introduction | |
9 (1) This Part of this Schedule excludes from stamp duty land tax— | |
(a) the transfer of an interest in land into a partnership (paragraph 10), | 5 |
(b) the acquisition of an interest in a partnership (paragraph 11), or | |
(c) the transfer of an interest in land out of a partnership (paragraph 12). | |
(2) In this Part of this Schedule— | |
(a) references to an interest in land include any interest or right that | |
would be a chargeable interest but for being excluded from stamp | 10 |
duty land tax, and | |
(b) references to the transfer of an interest in land include— | |
(i) the grant or creation of an interest in land, | |
(ii) the variation of an interest in land, and | |
(iii) the surrender or release of an interest in land. | 15 |
Transfer of interest in land into a partnership | |
10 (1) This paragraph applies to a transaction by which— | |
(a) a partner transfers an interest in land to a partnership, or | |
(b) a person transfers an interest in land to a partnership in return for an | |
interest in the partnership, | 20 |
whether in connection with the formation of the partnership or in a case | |
where the partnership already exists. | |
(2) There is a transfer of an interest in land to a partnership in any case where | |
an interest in land that was not partnership property becomes partnership | |
property. | 25 |
(3) A transaction to which this paragraph applies is excluded from stamp duty | |
land tax. | |
Acquisition of partnership interest | |
11 An acquisition of an interest in a partnership is excluded from stamp duty | |
land tax. | 30 |
Transfer of interest in land out of a partnership | |
12 (1) This paragraph applies to a transaction by which an interest in land is | |
transferred from a partnership to a person in consideration of his ceasing to | |
be a member of the partnership or reducing his interest in the partnership. | |
(2) There is a transfer of an interest in land from a partnership in any case where | 35 |
an interest in land that was partnership property ceases to be partnership | |
property. | |
(3) For the purposes of this paragraph property that was partnership property | |
before the partnership was dissolved or otherwise ceased to exist shall be | |
treated as remaining partnership property until it is distributed. | 40 |
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(4) A transaction to which this paragraph applies is excluded from stamp duty | |
land tax. | |
Effect of exclusion of transaction from stamp duty land tax | |
13 (1) A transaction that is excluded from stamp duty land tax by this Part of this | |
Schedule shall be treated for the purposes of this Part of this Act as if it were | 5 |
not a land transaction. | |
(2) Nothing in section 125 (abolition of stamp duty except in relation to stock or | |
marketable securities), or in Part 2 of Schedule 20 (amendments and repeals | |
consequential on that section), affects the application of the enactments | |
relating to stamp duty in relation to an instrument effecting a transaction | 10 |
that is excluded from stamp duty land tax by this Part of this Schedule. | |
(3) In Part 1 of Schedule 20 (provisions supplementing that section) references | |
to stock or marketable securities shall be read as including any property that | |
is the subject-matter of a transaction excluded from stamp duty land tax by | |
this Part of this Schedule. | 15 |
Construction of references to partnership property | |
14 Any reference in this Part of this Schedule to partnership property is to an | |
interest or right held by or on behalf of a partnership, or the members of a | |
partnership, for the purposes of the partnership business. | |
Schedule 16 | 20 |
Section 105 | |
Stamp duty land tax: trusts and powers | |
Meaning of “settlement” and “bare trust” | |
1 (1) In this Part “settlement” means a trust that is not a bare trust. | |
(2) In this Part a “bare trust” means a trust under which property is held by a | |
person as trustee— | 25 |
(a) for a person who is absolutely entitled as against the trustee, or who | |
would be so entitled but for being a minor or other person under a | |
disability, or | |
(b) for two or more persons who are or would be jointly so entitled, | |
and includes a case in which a person holds property as nominee for | 30 |
another. | |
(3) In sub-paragraph (2)(a) and (b) the references to a person being absolutely | |
entitled to property as against the trustee are references to a case where the | |
person has the exclusive right, subject only to satisfying any outstanding | |
charge, lien or other right of the trustee, to resort to the property for payment | 35 |
of duty, taxes, costs or other outgoings or to direct how the property is to be | |
dealt with. | |
(4) In sub-paragraph (2) “minor”, in relation to Scotland, means a person under | |
legal disability by reason of nonage. | |
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