|
| |
|
(7) | Where a third party notice or a notice under paragraph 5 is given to one of |
| |
the partners for the purpose of checking the tax position of one or more of |
| |
the other partners, that partner may not appeal against a requirement in the |
| |
notice to produce any document that forms part of that partner’s statutory |
| |
| |
| |
38 | This Schedule (other than Part 8) applies to the Crown, but not to Her |
| |
Majesty in Her private capacity (within the meaning of the Crown |
| |
Proceedings Act 1947 (c. 44)). |
| |
| |
| |
| |
39 (1) | This paragraph applies to a person who— |
| |
(a) | fails to comply with an information notice, or |
| |
(b) | deliberately obstructs an officer of Revenue and Customs in the |
| |
course of an inspection under Part 2 of this Schedule that has been |
| |
approved by the First-tier Tribunal. |
| |
(2) | A person to whom this paragraph applies is liable to a penalty of £300. |
| |
(3) | The reference in this paragraph to a person who fails to comply with an |
| |
information notice includes a person who conceals, destroys or otherwise |
| |
disposes of, or arranges for the concealment, destruction or disposal of, a |
| |
document in breach of paragraph 42 or 43. |
| |
| |
40 (1) | This paragraph applies if the failure or obstruction mentioned in paragraph |
| |
39(1) continues after the date on which a penalty is imposed under that |
| |
paragraph in respect of the failure or obstruction. |
| |
(2) | The person is liable to a further penalty or penalties not exceeding £60 for |
| |
each subsequent day on which the failure or obstruction continues. |
| |
Power to change amount of standard and daily default penalties |
| |
41 (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 for the time being specified in paragraphs 39(2) and 40(2) such other |
| |
sums as appear to them to be justified by the change. |
| |
(2) | In sub-paragraph (1), “relevant date” means— |
| |
(a) | the date on which this Act is passed, and |
| |
(b) | each date on which the power conferred by that sub-paragraph has |
| |
| |
(3) | Regulations under this paragraph do not apply to any failure or obstruction |
| |
which began before the date on which they come into force. |
| |
|
| |
|
| |
|
Concealing, destroying etc documents following information notice |
| |
42 (1) | A person must not conceal, destroy or otherwise dispose of, or arrange for |
| |
the concealment, destruction or disposal of, a document that is the subject of |
| |
an information notice addressed to the person (subject to sub-paragraphs (2) |
| |
| |
(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 |
| |
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 produced in accordance with |
| |
that paragraph unless, before the expiry of that period, an officer of Revenue |
| |
and Customs made a request for the original document under paragraph |
| |
| |
Concealing, destroying etc documents following informal notification |
| |
43 (1) | A person must not conceal, destroy or otherwise dispose of, or arrange for |
| |
the concealment, destruction or disposal of, a document if an officer of |
| |
Revenue and Customs has informed the person that the document is, or is |
| |
likely, to be the subject of an information notice addressed to that person |
| |
(subject to sub-paragraph (2)). |
| |
(2) | Sub-paragraph (1) does not apply if the person acts after— |
| |
(a) | at least 6 months has expired since the person was, or was last, so |
| |
| |
(b) | an information notice has been given to the person requiring the |
| |
| |
Failure to comply with time limit |
| |
44 | A failure by a person to do anything required to be done within a limited |
| |
period of time does not give rise to liability to a penalty under paragraph 39 |
| |
or 40 if the person did it within such further time, if any, as an officer of |
| |
Revenue and Customs may have allowed. |
| |
| |
45 (1) | Liability to a penalty under paragraph 39 or 40 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 |
| |
| |
(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 |
| |
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 |
| |
| |
Assessment of standard penalty or daily default penalty |
| |
46 (1) | Where a person becomes liable for a penalty under paragraph 39 or 40, |
| |
| |
(a) | assess the penalty, and |
| |
| |
(2) | An assessment of a penalty under paragraph 39 or 40 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 |
| |
| |
(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, |
| |
| |
(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 |
| |
47 | A person may appeal to the First-tier Tribunal against any of the following |
| |
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 |
| |
48 (1) | Notice of an appeal under paragraph 47 must be given— |
| |
| |
(b) | before the end of the period of 30 days beginning with the date on |
| |
which the notification under paragraph 46 was issued, and |
| |
| |
(2) | Notice of an appeal under paragraph 47 must state the grounds of appeal. |
| |
(3) | On an appeal under paragraph 47(a), the First-tier Tribunal may confirm or |
| |
| |
(4) | On an appeal under paragraph 47(b), the First-tier Tribunal may— |
| |
(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 49, the provisions of Part 5 of TMA |
| |
1970 relating to appeals have effect in relation to appeals under this Part of |
| |
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 |
| |
49 (1) | A penalty under paragraph 39 or 40 must be paid— |
| |
(a) | before the end of the period of 30 days beginning with the date on |
| |
which the notification under paragraph 46 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 39 or 40 may be enforced as if it were income tax |
| |
charged in an assessment and due and payable. |
| |
| |
50 (1) | This paragraph applies where— |
| |
(a) | a person becomes liable to a penalty under paragraph 39, |
| |
(b) | the failure or obstruction continues after a penalty is imposed under |
| |
| |
(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 |
| |
| |
(d) | before the end of the period of 12 months beginning with the relevant |
| |
date (within the meaning of paragraph 46), 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 |
| |
| |
(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 |
| |
| |
(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 39 or 40. |
| |
(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), |
| |
(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 |
| |
51 (1) | A penalty under paragraph 50 must be paid before the end of the period of |
| |
30 days beginning with the date on which the notification of the penalty is |
| |
| |
|
| |
|
| |
|
(2) | A penalty under paragraph 50 may be enforced as if it were income tax |
| |
charged in an assessment and due and payable. |
| |
| |
52 | 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 |
| |
53 (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 |
| |
(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 |
| |
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 |
| |
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 |
| |
54 (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 |
| |
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 |
| |
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 |
| |
| |
(b) | an information notice has been given to the person requiring the |
| |
| |
|
| |
|
| |
|
| |
55 | A person who is guilty of an offence under this Part of this Schedule is |
| |
| |
(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. |
| |
| |
Miscellaneous provisions and interpretation |
| |
Application of provisions of TMA 1970 |
| |
56 | 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 |
| |
| |
(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 |
| |
57 (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. |
| |
| |
| |
“checking” includes carrying out an investigation or enquiry of any |
| |
| |
“the Commissioners” means the Commissioners for Her Majesty’s |
| |
| |
“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, |
| |
| |
(a) | any building or structure, |
| |
| |
(c) | any means of transport, |
| |
| |
| |
| |
(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). |
| |
Authorised officer of Revenue and Customs |
| |
59 | 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. |
| |
| |
60 (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 |
| |
(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 |
| |
| |
“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 |
| |
| |
(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. |
| |
| |
61 | 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. |
| |
| |
62 (1) | For the purposes of this Schedule, information or a document forms part of |
| |
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— |
| |
(a) | does not relate to the carrying on of a business, and |
| |
|
| |
|