|
| |
|
| |
43 (1) | Liability to a penalty under paragraph 37 or 38 does not arise if the person |
| |
satisfies HMRC or (on appeal) the First-tier Tribunal that there is a |
| |
reasonable excuse for the failure or the obstruction of an officer of Revenue |
| |
| 5 |
(2) | For the purposes of this paragraph— |
| |
(a) | an insufficiency of funds is not a reasonable excuse unless |
| |
attributable to events outside the person’s control, |
| |
(b) | where the person relies on any other person to do anything, that is |
| |
not a reasonable excuse unless the first person took reasonable care |
| 10 |
to avoid the failure or obstruction, and |
| |
(c) | where the person had a reasonable excuse for the failure or |
| |
obstruction but the excuse has ceased, the person is to be treated as |
| |
having continued to have the excuse if the failure is remedied, or the |
| |
obstruction stops, without unreasonable delay after the excuse |
| 15 |
| |
Assessment of standard penalty or daily default penalty |
| |
44 (1) | Where a person becomes liable for a penalty under paragraph 37 or 38, |
| |
| |
(a) | assess the penalty, and |
| 20 |
| |
(2) | An assessment of a penalty under paragraph 37 or 38 must be made within |
| |
12 months of the relevant date. |
| |
(3) | In sub-paragraph (2), “the relevant date” means— |
| |
(a) | in a case involving an information notice against which a person may |
| 25 |
| |
(i) | the end of the period in which notice of an appeal against the |
| |
information notice could have been given, and |
| |
(ii) | if notice of an appeal against the information notice is given, |
| |
the date on which the appeal is determined or withdrawn, |
| 30 |
| |
(b) | in any other case, the date on which the person became liable to the |
| |
| |
Right to appeal against standard penalty or daily default penalty |
| |
45 | A person may appeal to the First-tier Tribunal against any of the following |
| 35 |
decisions of an officer of Revenue and Customs— |
| |
(a) | a decision that a penalty is payable by that person under paragraph |
| |
| |
(b) | a decision as to the amount of such a penalty. |
| |
Procedure on appeal against standard penalty or daily default penalty |
| 40 |
46 (1) | Notice of an appeal under paragraph 45 must be given— |
| |
| |
(b) | before the end of the period of 30 days beginning with the date on |
| |
which the notification under paragraph 44 was issued, and |
| |
|
| |
|
| |
|
| |
(2) | Notice of an appeal under paragraph 45 must state the grounds of appeal. |
| |
(3) | On an appeal under paragraph 45(a), the First-tier Tribunal may confirm or |
| |
| |
(4) | On an appeal under paragraph 45(b), the First-tier Tribunal may— |
| 5 |
(a) | confirm the decision, or |
| |
(b) | substitute for the decision another decision that the officer of |
| |
Revenue and Customs had power to make. |
| |
(5) | Subject to this paragraph and paragraph 47, the provisions of Part 5 of TMA |
| |
1970 relating to appeals have effect in relation to appeals under this Part of |
| 10 |
this Schedule as they have effect in relation to an appeal against an |
| |
assessment to income tax. |
| |
Enforcement of standard penalty or daily default penalty |
| |
47 (1) | A penalty under paragraph 37 or 38 must be paid— |
| |
(a) | before the end of the period of 30 days beginning with the date on |
| 15 |
which the notification under paragraph 44 was issued, or |
| |
(b) | if a notice of an appeal against the penalty is given, before the end of |
| |
the period of 30 days beginning with the date on which the appeal is |
| |
| |
(2) | A penalty under paragraph 37 or 38 may be enforced as if it were income tax |
| 20 |
charged in an assessment and due and payable. |
| |
| |
48 (1) | This paragraph applies where— |
| |
(a) | a person becomes liable to a penalty under paragraph 37, |
| |
(b) | the failure or obstruction continues after a penalty is imposed under |
| 25 |
| |
(c) | an officer of Revenue and Customs has reason to believe that, as a |
| |
result of the failure or obstruction, the amount of tax that the person |
| |
has paid, or is likely to pay, is significantly less than it would |
| |
| 30 |
(d) | before the end of the period of 12 months beginning with the relevant |
| |
date (within the meaning of paragraph 44), an officer of Revenue and |
| |
Customs makes an application to the Upper Tribunal for an |
| |
additional penalty to be imposed on the person, and |
| |
(e) | the Upper Tribunal decides that it is appropriate for an additional |
| 35 |
| |
(2) | The person is liable to a penalty of an amount decided by the Upper |
| |
| |
(3) | In deciding the amount of the penalty, the Upper Tribunal must have regard |
| |
to the amount of tax which has not been, or is not likely to be, paid by the |
| 40 |
| |
(4) | Where a person becomes liable to a penalty under this paragraph, HMRC |
| |
| |
|
| |
|
| |
|
(5) | Any penalty under this paragraph is in addition to the penalty or penalties |
| |
under paragraph 37 or 38. |
| |
(6) | In the application of the following provisions, no account shall be taken of a |
| |
penalty under this paragraph— |
| |
(a) | section 97A of TMA 1970 (multiple penalties), |
| 5 |
(b) | paragraph 12(2) of Schedule 24 to FA 2007 (interaction with other |
| |
| |
(c) | paragraph 15(1) of Schedule 41 (interaction with other penalties). |
| |
Enforcement of tax-related penalty |
| |
49 (1) | A penalty under paragraph 48 must be paid before the end of the period of |
| 10 |
30 days beginning with the date on which the notification of the penalty is |
| |
| |
(2) | A penalty under paragraph 48 may be enforced as if it were income tax |
| |
charged in an assessment and due and payable. |
| |
| 15 |
50 | A person is not liable to a penalty under this Schedule in respect of anything |
| |
in respect of which the person has been convicted of an offence. |
| |
| |
| |
Concealing etc documents following information notice |
| 20 |
51 (1) | A person is guilty of an offence (subject to sub-paragraph (2)) if— |
| |
(a) | the person is required to produce a document by an information |
| |
| |
(b) | the First-tier Tribunal approved the giving of the notice in |
| |
accordance with paragraph 3 or 5, and |
| 25 |
(c) | the person conceals, destroys or otherwise disposes of, or arranges |
| |
for the concealment, destruction or disposal of, that document. |
| |
(2) | Sub-paragraph (1) does not apply if the person acts after the document has |
| |
been produced to an officer of Revenue and Customs in accordance with the |
| |
information notice, unless an officer of Revenue and Customs has notified |
| 30 |
the person in writing that the document must continue to be available for |
| |
inspection (and has not withdrawn the notification). |
| |
(3) | Sub-paragraph (1) does not apply, in a case to which paragraph 8(1) applies, |
| |
if the person acts after the expiry of the period of 6 months beginning with |
| |
the day on which a copy of the document was so produced unless, before the |
| 35 |
expiry of that period, an officer of Revenue and Customs made a request for |
| |
the original document under paragraph 8(2)(b). |
| |
Concealing etc documents following informal notification |
| |
52 (1) | A person is also guilty of an offence (subject to sub-paragraph (2)) if the |
| |
person conceals, destroys or otherwise disposes of, or arranges for the |
| 40 |
|
| |
|
| |
|
concealment, destruction or disposal of a document after the person has |
| |
been informed by an officer of Revenue and Customs in writing that— |
| |
(a) | the document is, or is likely, to be the subject of an information notice |
| |
addressed to that person, and |
| |
(b) | an officer of Revenue and Customs intends to seek the approval of |
| 5 |
the First-tier Tribunal to the giving of the notice under paragraph 3 |
| |
or 5 in respect of the document. |
| |
(2) | A person is not guilty of an offence under this paragraph if the person acts |
| |
| |
(a) | at least 6 months has expired since the person was, or was last, so |
| 10 |
| |
(b) | an information notice has been given to the person requiring the |
| |
| |
| |
53 | A person who is guilty of an offence under this Part of this Schedule is |
| 15 |
| |
(a) | on summary conviction, to a fine not exceeding the statutory |
| |
| |
(b) | on conviction on indictment, to imprisonment for a term not |
| |
exceeding 2 years or to a fine, or both. |
| 20 |
| |
Miscellaneous provisions and interpretation |
| |
Application of provisions of TMA 1970 |
| |
54 | Subject to the provisions of this Schedule, the following provisions of TMA |
| |
1970 apply for the purposes of this Schedule as they apply for the purposes |
| 25 |
| |
(a) | section 108 (responsibility of company officers), |
| |
(b) | section 114 (want of form), and |
| |
(c) | section 115 (delivery and service of documents). |
| |
Regulations under this Schedule |
| 30 |
55 (1) | Regulations made by the Commissioners or the Treasury under this |
| |
Schedule are to be made by statutory instrument. |
| |
(2) | A statutory instrument containing regulations under this Schedule is subject |
| |
to annulment in pursuance of a resolution of the House of Commons. |
| |
| 35 |
| |
“checking” includes carrying out an investigation or enquiry of any |
| |
| |
“the Commissioners” means the Commissioners for Her Majesty’s |
| |
| 40 |
“document” includes a part of a document (except where the context |
| |
| |
|
| |
|
| |
|
“enactment” includes subordinate legislation (within the meaning of |
| |
the Interpretation Act 1978 (c. 30)), |
| |
“HMRC” means Her Majesty’s Revenue and Customs, |
| |
| |
| 5 |
| |
(c) | TCGA 1992 and all other enactments relating to capital gains |
| |
| |
“taxpayer”, in relation to a taxpayer notice or a third party notice, has |
| |
the meaning given in paragraph 1(1) or 2(1) (as appropriate). |
| 10 |
Authorised officer of Revenue and Customs |
| |
57 | A reference in a provision of this Schedule to an authorised officer of |
| |
Revenue and Customs is a reference to an officer of Revenue and Customs |
| |
who is, or is a member of a class of officers who are, authorised by the |
| |
Commissioners for the purpose of that provision. |
| 15 |
| |
58 (1) | In this Schedule (subject to regulations under this paragraph), references to |
| |
carrying on a business include— |
| |
(a) | the letting of property, |
| |
(b) | the activities of a charity, and |
| 20 |
(c) | the activities of a government department, a local authority, a local |
| |
authority association and any other public authority. |
| |
(2) | In sub-paragraph (1)— |
| |
“charity” means a body of persons or trust established for charitable |
| |
| 25 |
“local authority” has the meaning given in section 999 of ITA 2007, and |
| |
“local authority association” has the meaning given in section 1000 of |
| |
| |
(3) | The Commissioners may by regulations provide that for the purposes of this |
| |
| 30 |
(a) | the carrying on of an activity specified in the regulations, or |
| |
(b) | the carrying on of such an activity (or any activity) by a person |
| |
specified in the regulations, |
| |
| is or is not to be treated as the carrying on of a business. |
| |
| 35 |
59 | In this Schedule, “chargeable period” means— |
| |
(a) | in relation to income tax or capital gains tax, a tax year, and |
| |
(b) | in relation to corporation tax, an accounting period. |
| |
| |
60 (1) | For the purposes of this Schedule, information or a document forms part of |
| 40 |
a person’s statutory records if it is information or a document which the |
| |
person is required to keep and preserve under or by virtue of— |
| |
| |
|
| |
|
| |
|
(b) | VATA 1994 or any other enactment relating to value added tax |
| |
charged in accordance with that Act, |
| |
| subject to the following provisions of this paragraph. |
| |
(2) | To the extent that any information or document that is required to be kept |
| |
and preserved under or by virtue of the Taxes Acts— |
| 5 |
(a) | does not relate to the carrying on of a business, and |
| |
(b) | is not also required to be kept or preserved under or by virtue of |
| |
VATA 1994 or any other enactment relating to value added tax, |
| |
| it only forms part of a person’s statutory records to the extent that the |
| |
chargeable period or periods to which it relates has or have ended. |
| 10 |
(3) | Information and documents cease to form part of a person’s statutory |
| |
records when the period for which they are required to be preserved by the |
| |
enactments mentioned in sub-paragraph (1) has expired. |
| |
| |
61 (1) | In this Schedule, except where the context otherwise requires, “tax” means |
| 15 |
all or any of the following— |
| |
| |
| |
| |
| 20 |
(e) | relevant foreign tax, |
| |
| and references to “a tax” are to be interpreted accordingly. |
| |
(2) | In this Schedule, “corporation tax” includes any amount assessable or |
| |
chargeable as if it were corporation tax. |
| |
(3) | In this Schedule, “VAT” means— |
| 25 |
(a) | value added tax charged in accordance with VATA 1994, and |
| |
(b) | value added tax charged in accordance with the law of another |
| |
| |
| and includes any amount that is recoverable under paragraph 5(2) of |
| |
Schedule 11 to VATA 1994 (amounts shown on invoices as VAT). |
| 30 |
(4) | In this Schedule, “relevant foreign tax” means— |
| |
(a) | a tax of a member State, other than the United Kingdom, which is |
| |
covered by the provisions for the exchange of information under the |
| |
Directive of the Council of the European Communities dated 19 |
| |
December 1977 No. 77/799/EEC (as amended from time to time), |
| 35 |
| |
(b) | any tax or duty which is imposed under the law of a territory in |
| |
relation to which arrangements having effect by virtue of section 173 |
| |
of FA 2006 (international tax enforcement arrangements) have been |
| |
made and which is covered by the arrangements. |
| 40 |
| |
62 (1) | In this Schedule, except as otherwise provided, “tax position”, in relation to |
| |
a person, means the person’s position as regards any tax, including the |
| |
person’s position as regards— |
| |
(a) | past, present and future liability to pay any tax, |
| 45 |
|
| |
|
| |
|
(b) | penalties and other amounts that have been paid, or are or may be |
| |
payable, by or to the person in connection with any tax, and |
| |
(c) | claims, elections, applications and notices that have been or may be |
| |
made or given in connection with any tax, |
| |
| and references to a person’s position as regards a particular tax (however |
| 5 |
expressed) are to be interpreted accordingly. |
| |
(2) | References in this Schedule to a person’s tax position include, where |
| |
appropriate, a reference to the person’s position as regards any deductions |
| |
or repayments of tax, or of sums representing tax, that the person is required |
| |
| 10 |
(a) | under PAYE regulations, |
| |
(b) | under Chapter 3 of Part 3 of FA 2003 or regulations made under that |
| |
Chapter (construction industry scheme), or |
| |
(c) | by or under any other provision of the Taxes Acts. |
| |
(3) | References in this Schedule to the tax position of a person include the tax |
| 15 |
| |
(a) | a company that has ceased to exist, and |
| |
(b) | an individual who has died. |
| |
(4) | References in this Schedule to a person’s tax position are to the person’s tax |
| |
position at any time or in relation to any period, unless otherwise stated. |
| 20 |
| |
| |
| |
63 | TMA 1970 is amended as follows. |
| |
64 | Omit section 19A (power to call for documents for purposes of enquiries). |
| 25 |
65 | Omit section 20 (power to call for documents of taxpayer and others). |
| |
66 (1) | Section 20B (restrictions on powers to call for documents under ss20 and |
| |
20A) is amended as follows. |
| |
(2) | In the heading, for “ss 20 and” substitute “section”. |
| |
| 30 |
(a) | omit “under section 20(1), (3) or (8A), or”, |
| |
(b) | omit “(or, in the case of section 20(3), to deliver or make available)”, |
| |
(c) | omit “, or to furnish the particulars in question”, and |
| |
(d) | omit “section 20(7) or (8A) or, as the case may be,”. |
| |
(4) | Omit subsections (1A) and (1B). |
| 35 |
(5) | In subsection (2), omit from the beginning to “taxpayer;”. |
| |
| |
(a) | omit “under section 20(1) or (3) or”, and |
| |
(b) | omit “section 20(3) and (4) and”. |
| |
| 40 |
(a) | omit “section 20(1) or”, and |
| |
|
| |
|