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Finance Bill
Schedule 23 — Extension of HMRC powers: Scotland

256

 

Detention and questioning of suspects and witnesses

23M     

Powers relating to suspects and potential witnesses

(1)   

Where an authorised officer has reasonable grounds for suspecting

that a person has committed or is committing, at any place, a

Revenue and Customs offence, the officer may require—

5

(a)   

that person, if found by the officer at that place or at any place

where the officer is entitled to be, to give—

(i)   

the information mentioned in subsection (2) below;

and

(ii)   

an explanation of the circumstances which have given

10

rise to the officer’s suspicion;

(b)   

any other person whom the officer finds at that place or at

any place where the officer is entitled to be and who the

officer believes has information relating to the offence, to give

the information mentioned in subsection (2) below.

15

(2)   

That information is—

(a)   

the person’s name;

(b)   

the person’s address;

(c)   

the person’s date of birth;

(d)   

the person’s place of birth (in such detail as the officer

20

considers necessary or expedient for the purpose of

establishing that person’s identity); and

(e)   

the person’s nationality.

(3)   

The officer may require the person mentioned in paragraph (a) of

subsection (1) above to remain with the officer while the officer (any

25

or all)—

(a)   

subject to subsection (4) below, verifies any information

mentioned in subsection (2) above given by the person;

(b)   

subject to section (5) below, establishes whether the person

may be a person suspected of having committed a Revenue

30

and Customs offence other than the offence in relation to

which the officer made the requirement of that person under

paragraph (a) of subsection (1) above;

(c)   

notes any explanation proffered by the person.

(4)   

The officer shall exercise the power under paragraph (a) of

35

subsection (3) above only where it appears to the officer that such

verification can be obtained quickly.

(5)   

The officer shall exercise the power under paragraph (b) of

subsection (3) above only where—

(a)   

the person mentioned in paragraph (a) of subsection (1)

40

above has given a name and address; and

(b)   

it appears to the officer that establishing the matter

mentioned in paragraph (b) of subsection (3) above can be

achieved quickly.

(6)   

The officer may use reasonable force to ensure that the person

45

mentioned in paragraph (a) of subsection (1) above remains with that

officer.

 

 

Finance Bill
Schedule 23 — Extension of HMRC powers: Scotland

257

 

(7)   

The officer shall inform a person, when making a requirement of that

person under—

(a)   

paragraph (a) of subsection (1) above, of the officer’s

suspicion and of the general nature of the offence which the

officer suspects that the person has committed or is

5

committing;

(b)   

paragraph (b) of subsection (1) above, of the officer’s

suspicion, of the general nature of the offence which the

officer suspects has been or is being committed and that the

reason for the requirement is that the officer believes the

10

person has information relating to the offence;

(c)   

subsection (3) above, why the person is being required to

remain with the officer;

(d)   

any of the said subsections, that failure to comply with the

requirement may constitute an offence.

15

23N     

Fingerprinting of persons suspected of offences

(1)   

An authorised officer may, if the person mentioned in section

23M(1)(a) of this Act gives a name and address, require that person

to provide—

(a)   

that person’s fingerprints; or

20

(b)   

a record, created by an approved device, of the skin on that

person’s fingers.

(2)   

Such fingerprints or record may be used only for the purposes of—

(a)   

verifying the name and address given by the person;

(b)   

establishing whether the person may be a person who is

25

suspected of having committed any other Revenue and

Customs offence,

   

and all record of such fingerprints or record shall be destroyed as

soon as possible after they have fulfilled those purposes.

(3)   

The officer shall inform a person, when making a requirement of that

30

person under subsection (1) above—

(a)   

of the existence of the power to make the requirement and

why the officer proposes to exercise it in the person’s case;

and

(b)   

that failure to comply with the requirement may constitute

35

an offence.

(4)   

In subsection (1)(b) above, an “approved device” is any device

approved by the Scottish Ministers under section 13(8) of the

Criminal Procedure (Scotland) Act 1995.

23P     

Offences arising from breach of requirements under sections 23M and

40

23N

(1)   

A person mentioned in paragraph (a) of subsection (1) of section 23M

of this Act who, having been required—

(a)   

under that subsection to give the information mentioned in

subsection (2) of that section;

45

(b)   

under subsection (3) of that section to remain with an officer;

or

 

 

Finance Bill
Schedule 23 — Extension of HMRC powers: Scotland

258

 

(c)   

under subsection (1) of section 23N of this Act to provide that

person’s fingerprints or a record such as is mentioned in

paragraph (b) of that subsection,

   

fails, without reasonable excuse, to do so, shall be guilty of an offence

and liable on summary conviction to a fine not exceeding level 3 on

5

the standard scale.

(2)   

A person mentioned in paragraph (b) of subsection (1) of section 23M

of this Act who, having been required under that subsection to give

the information mentioned in subsection (2) of that section, fails,

without reasonable excuse, to do so, shall be guilty of an offence and

10

liable on summary conviction to a fine not exceeding level 2 on the

standard scale.

(3)   

An authorised officer may arrest without warrant any person whom

the officer has reasonable grounds for suspecting has committed an

offence under subsection (1) or (2) above.”

15

4          

In section 24 (detention and questioning by customs officers)—

(a)   

in subsection (1)—

(i)   

for “an offence punishable by imprisonment relating to an

assigned matter” substitute “a Revenue and Customs offence

punishable by imprisonment”,

20

(ii)   

for “a customs office” substitute “an office of Revenue and

Customs”, and

(iii)   

for “customs office”, in the second place, substitute “office of

Revenue and Customs”,

(b)   

in subsection (5), for “customs office” (in both places) substitute

25

“office of Revenue and Customs”,

(c)   

in subsection (8)—

(i)   

for “his name and address” substitute “the information

mentioned in subsection (8A) below”, and

(ii)   

for “customs office” substitute “office of Revenue and

30

Customs”,

(d)   

after that subsection insert—

“(8A)   

That information is—

(a)   

the person’s name;

(b)   

the person’s address;

35

(c)   

the person’s date of birth;

(d)   

the person’s place of birth (in such detail as the officer

considers necessary or expedient for the purpose of

establishing that person’s identify); and

(e)   

the person’s nationality.”,

40

(e)   

omit subsection (9), and

(f)   

the heading accordingly becomes “Detention and questioning at

office of Revenue and Customs”.

5         

In section 25(1) (right to have someone informed of the fact of detention)—

(a)   

for “a customs office” substitute “an office of Revenue and Customs”,

45

and

(b)   

for “customs office”, in the second and third places, substitute “office

of Revenue and Customs”.

 

 

Finance Bill
Schedule 23 — Extension of HMRC powers: Scotland

259

 

6         

In section 26 (detention in connection with drug smuggling offences), for “a

customs office” (in both places) substitute “an office of Revenue and

Customs”.

7          

After that section insert—

“Power of arrest

5

26A     

Power of arrest

   

Where an authorised officer has reasonable grounds for suspecting

that a Revenue and Customs offence has been or is being committed,

the officer may arrest without warrant any person whom the officer

has reasonable grounds for suspecting to be guilty of the offence.

10

General provisions

26B     

Interpretation of Part 3 etc

(1)   

In this Part of this Act—

“authorised officer” means an officer acting with the authority

(which may be general or specific) of the Commissioners for

15

Her Majesty’s Revenue and Customs;

“office of Revenue and Customs” means premises wholly or

partly occupied by Her Majesty’s Revenue and Customs; and

“officer” means an officer of Revenue and Customs.

(2)   

In any proceedings (whether civil or criminal) under or arising from

20

this Part of this Act, a certificate of the Commissioners for Her

Majesty’s Revenue and Customs that an officer had authority to

exercise a power or function conferred by a provision of this Part

shall be conclusive proof of that fact.”

Criminal Procedure (Scotland) Act 1995 (c. 46)

25

8          

Section 307 of the Criminal Procedure (Scotland) Act 1995 (interpretation) is

amended as follows.

9          

In subsection (1), in the definition of “officer of law”, for paragraph (ba)

substitute—

“(ba)   

subject to subsection (1A) below, an officer of Revenue and

30

Customs acting with the authority (which may be general

or specific) of the Commissioners for Her Majesty’s

Revenue and Customs;”.

10         

After that subsection insert—

“(1A)   

The inclusion of officers of Revenue and Customs as “officers of law”

35

shall not have effect in relation to any matter specified in—

(a)   

section 54(4)(b) or (f) of; or

(b)   

paragraphs 3, 7, 10, 13 to 15, 19 or 24 to 29 of Schedule 1 to,

   

the Commissioners for Revenue and Customs Act 2005 (former

Inland Revenue matters).

40

(1B)   

In any proceedings (whether civil or criminal) under or arising from

this Act, a certificate of the Commissioners for Her Majesty’s

 

 

Finance Bill
Schedule 24 — Penalties for errors
Part 1 — Liability for penalty

260

 

Revenue and Customs that an officer of Revenue and Customs had

the authority to exercise a power or function conferred by a

provision of this Act shall be conclusive evidence of that fact.”

Criminal Justice and Police Act 2001 (c. 16)

11         

The Criminal Justice and Police Act 2001 is amended as follows.

5

12         

In section 63(2) (powers to obtain hard copies etc of information stored in

electronic form), after paragraph (g) insert—

“(ga)   

section 23E(5)(b) (as read with section 23K(2)) of the Criminal

Law (Consolidation) (Scotland) Act 1995;”.

13         

In Schedule 1—

10

(a)   

in Part 1, after paragraph 59 insert—

“Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39)

59A        

The power of seizure conferred by section 23E(3) of the

Criminal Law (Consolidation) (Scotland) Act 1995 (seizure

of evidence of Revenue and Customs offences).”, and

15

(b)   

in Part 2, after paragraph 81 insert—

“Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39)

81A        

The power of seizure conferred by section 23E(3) (as read

with section 23E(5)(c)) of the Criminal Law

(Consolidation) (Scotland) Act 1995 (seizure of evidence of

20

Revenue and Customs offences).”

14    (1)  

The amendments made by this Schedule come into force in accordance with

provision made by the Treasury by order.

      (2)  

The power to make an order under this paragraph is exercisable by statutory

instrument.

25

Schedule 24

Section 96

 

Penalties for errors

Part 1

Liability for penalty

Error in taxpayer’s document

30

1     (1)  

A penalty is payable by a person (P) where—

(a)   

P gives HMRC a document of a kind listed in the Table below, and

(b)   

HMRC think that Conditions 1 and 2 are satisfied.

      (2)  

Condition 1 is that the document contains an inaccuracy which amounts to,

or leads to—

35

(a)   

an understatement of P’s liability to tax,

(b)   

a false or inflated statement of a loss by P, or

 

 

Finance Bill
Schedule 24 — Penalties for errors
Part 1 — Liability for penalty

261

 

(c)   

a false or inflated claim to repayment of tax.

      (3)  

Condition 2 is that the inaccuracy was careless or deliberate (within the

meaning of paragraph 3).

      (4)  

Where a document contains more than one inaccuracy, a penalty is payable

for each inaccuracy.

5

 

Tax

Document

 
 

Income tax or capital gains tax

Return under section 8 of TMA 1970

 
  

(personal return).

 
 

Income tax or capital gains tax

Return under section 8A of TMA

 
  

1970 (trustee’s return).

 

10

 

Income tax or capital gains tax

Return, statement or declaration in

 
  

connection with a claim for an

 
  

allowance, deduction or relief.

 
 

Income tax or capital gains tax

Accounts in connection with

 
  

ascertaining liability to tax.

 

15

 

Income tax or capital gains tax

Partnership return.

 
 

Income tax or capital gains tax

Statement or declaration in

 
  

connection with a partnership

 
  

return.

 
 

Income tax or capital gains tax

Accounts in connection with a

 

20

  

partnership return.

 
 

Income tax

Return for the purposes of PAYE

 
  

regulations.

 
 

Construction industry deductions

Return for the purposes of

 
  

regulations under section 70(1)(a) of

 

25

  

FA 2004 in connection with

 
  

deductions on account of tax under

 
  

the Construction Industry Scheme.

 
 

Corporation tax

Company tax return under

 
  

paragraph 3 of Schedule 18 to FA

 

30

  

1998.

 
 

Corporation tax

Return, statement or declaration in

 
  

connection with a claim for an

 
  

allowance, deduction or relief.

 
 

Corporation tax

Accounts in connection with

 

35

  

ascertaining liability to tax.

 
 

VAT

VAT return under regulations made

 
  

under paragraph 2 of Schedule 11 to

 
  

VATA 1994.

 
 

VAT

Return, statement or declaration in

 

40

  

connection with a claim.

 
 

 

Finance Bill
Schedule 24 — Penalties for errors
Part 1 — Liability for penalty

262

 
 

Tax

Document

 
 

Income tax, capital gains tax,

Any document which is likely to be

 
 

corporation tax or VAT

relied upon by HMRC to determine,

 
  

without further inquiry, a question

 
  

about—

 

5

  

(a)   

P’s liability to tax,

 
  

(b)   

payments by P by way of

 
  

or in connection with tax,

 
  

(c)   

any other payment by P

 
  

(including penalties), or

 

10

  

(d)   

repayments, or any other

 
  

kind of payment or credit,

 
  

to P.

 
 

Error in HMRC assessment

2     (1)  

A penalty is payable by a person (P) where—

15

(a)   

an assessment issued to P by HMRC understates P’s liability to tax,

and

(b)   

HMRC think that P has failed to take reasonable steps to notify them,

within the period of 30 days beginning with the date of the

assessment, that it is an under-assessment.

20

      (2)  

In deciding what steps (if any) were reasonable HMRC must consider—

(a)   

whether P knew, or should have known, about the under-

assessment, and

(b)   

what steps would have been reasonable to take to notify HMRC.

      (3)  

In sub-paragraph (1) “tax” means—

25

(a)   

income tax,

(b)   

capital gains tax,

(c)   

corporation tax, and

(d)   

VAT.

Degrees of culpability

30

3     (1)  

Inaccuracy in a document given by P to HMRC is—

(a)   

“careless” if the inaccuracy is due to failure by P to take reasonable

care,

(b)   

“deliberate but not concealed” if the inaccuracy is deliberate but P

does not make arrangements to conceal it, and

35

(c)   

“deliberate and concealed” if the inaccuracy is deliberate and P

makes arrangements to conceal it (for example, by submitting false

evidence in support of an inaccurate figure).

      (2)  

An inaccuracy in a document given by P to HMRC, which was neither

careless nor deliberate when the document was given, is to be treated as

40

careless if HMRC think that P—

(a)   

discovered the inaccuracy at some later time, and

(b)   

did not take reasonable steps to inform HMRC.

 

 

 
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