|
| |
|
(2) | “Relevant claim” means a claim within paragraph 3(2)(a) of Schedule 1AB to |
| |
| |
(a) | is made before 1 April 2012 by a person other than a company, and |
| |
(b) | satisfies sub-paragraph (3). |
| |
(3) | A claim satisfies this sub-paragraph if notice requiring the return (or, if more |
| 5 |
than one, the first return) mentioned in paragraph 3(2)(a) of Schedule 1AB |
| |
to TMA 1970 was not given within one year of the end of the tax year to |
| |
which the return relates. |
| |
Saving for petroleum revenue tax |
| |
11 | The amendments of TMA 1970 made by this Part of this Schedule do not |
| 10 |
have effect for the purposes of that Act as applied by paragraph 1 of |
| |
Schedule 2 to OTA 1975 (management and collection of petroleum revenue |
| |
| |
| |
| 15 |
Claims for recovery of overpaid tax etc |
| |
12 | Schedule 18 to FA 1998 (company tax returns, assessments and related |
| |
matters) is amended as follows. |
| |
13 | For paragraph 51 (and the heading before that paragraph) substitute— |
| |
“Claim for relief for overpaid tax etc |
| 20 |
51 (1) | This paragraph applies where— |
| |
(a) | a person has paid an amount by way of tax but believes |
| |
that the tax was not due, or |
| |
(b) | a person has been assessed as liable to pay an amount by |
| |
way of tax, or there has been a determination or direction |
| 25 |
to that effect, but the person believes that the tax is not due. |
| |
(2) | The person may make a claim to the Commissioners for Her |
| |
Majesty’s Revenue and Customs for repayment or discharge of the |
| |
| |
(3) | Paragraph 51A makes provision about cases in which the |
| 30 |
Commissioners for Her Majesty’s Revenue and Customs are not |
| |
liable to give effect to a claim under this paragraph. |
| |
(4) | The following make further provision about making and giving |
| |
effect to claims under this paragraph— |
| |
(a) | paragraphs 51B to 51F and Part 7 of this Schedule, and |
| 35 |
(b) | Schedule 1A to the Taxes Management Act 1970 (which is |
| |
| |
(5) | Paragraph 51G makes provision about the application of this |
| |
paragraph and paragraphs 51A to 51F to amounts paid under |
| |
| 40 |
|
| |
|
| |
|
(6) | The Commissioners for Her Majesty’s Revenue and Customs are |
| |
not liable to give relief in respect of a case described in sub- |
| |
paragraph (1)(a) or (b) except as provided— |
| |
(a) | by this Schedule and Schedule 1A to the Taxes |
| |
Management Act 1970 (following a claim under this |
| 5 |
| |
(b) | by or under another provision of the Corporation Tax Acts. |
| |
(7) | For the purposes of this paragraph and paragraphs 51A to 51G, an |
| |
amount paid by one person on behalf of another is treated as paid |
| |
| 10 |
Cases in which Commissioners not liable to give effect to a claim |
| |
51A (1) | The Commissioners for Her Majesty’s Revenue and Customs are |
| |
not liable to give effect to a claim under paragraph 51 if or to the |
| |
extent that the claim falls within a case described in this paragraph |
| |
(see also paragraph 51C(5)). |
| 15 |
(2) | Case A is where the amount paid, or liable to be paid, is excessive |
| |
| |
(a) | a mistake in a claim, election or a notice, |
| |
(b) | a mistake consisting of making or giving, or failing to make |
| |
or give, a claim, election or notice, |
| 20 |
(c) | a mistake in allocating expenditure to a pool for the |
| |
purposes of the Capital Allowances Act or a mistake |
| |
consisting of making, or failing to make, such an |
| |
| |
(d) | a mistake in bringing a disposal value into account for the |
| 25 |
purposes of that Act or a mistake consisting of bringing, or |
| |
failing to bring, such a value into account. |
| |
(3) | Case B is where the claimant is or will be able to seek relief by |
| |
taking other steps under the Corporation Tax Acts. |
| |
(4) | Case C is where the claimant— |
| 30 |
(a) | could have sought relief by taking such steps within a |
| |
period that has now expired, and |
| |
(b) | knew, or ought reasonably to have known, before the end |
| |
of that period that such relief was available. |
| |
(5) | Case D is where the claim is made on grounds that— |
| 35 |
(a) | have been put to a court or tribunal in the course of an |
| |
appeal by the claimant relating to the amount paid or liable |
| |
| |
(b) | have been put to Her Majesty’s Revenue and Customs in |
| |
the course of an appeal by the claimant relating to that |
| 40 |
amount that is treated as having been determined by a |
| |
tribunal (by virtue of section 54 of the Taxes Management |
| |
Act 1970 (settling of appeals by agreement)). |
| |
(6) | Case E is where the claimant knew, or ought reasonably to have |
| |
known, of the grounds for the claim before the latest of the |
| 45 |
| |
|
| |
|
| |
|
(a) | the date on which an appeal by the claimant relating to the |
| |
amount paid, or liable to be paid, in the course of which the |
| |
ground could have been put forward (a “relevant appeal”) |
| |
was determined by a court or tribunal (or is treated as |
| |
having been so determined), |
| 5 |
(b) | the date on which the claimant withdrew a relevant appeal |
| |
to a court or tribunal, and |
| |
(c) | the end of the period in which the claimant was entitled to |
| |
make a relevant appeal to a court or tribunal. |
| |
(7) | Case F is where the amount in question was paid or is liable to be |
| 10 |
| |
(a) | in consequence of proceedings enforcing the payment of |
| |
that amount brought against the claimant by Her Majesty’s |
| |
| |
(b) | in accordance with an agreement between the claimant |
| 15 |
and Her Majesty’s Revenue and Customs settling such |
| |
| |
| |
(a) | the amount paid, or liable to be paid, is excessive by reason |
| |
of a mistake in calculating the claimant’s liability to |
| 20 |
| |
(b) | liability was calculated in accordance with the practice |
| |
generally prevailing at the time. |
| |
| |
51B (1) | A claim under paragraph 51 may not be made more than 4 years |
| 25 |
after the end of the relevant accounting period. |
| |
(2) | In relation to a claim made in reliance on paragraph 51(1)(a), the |
| |
relevant accounting period is— |
| |
(a) | where the amount paid, or liable to be paid, is excessive by |
| |
reason of a mistake in a company tax return or returns, the |
| 30 |
accounting period to which the return (or, if more than |
| |
one, the first return) relates, and |
| |
(b) | otherwise, the accounting period in respect of which the |
| |
| |
(3) | In relation to a claim made in reliance on paragraph 51(1)(b), the |
| 35 |
relevant accounting period is the accounting period to which the |
| |
assessment, determination or direction relates. |
| |
(4) | A claim under paragraph 51 may not be made by being included |
| |
| |
The claimant: one person accountable for amounts payable by another |
| 40 |
51C (1) | Sub-paragraph (2) applies where a person (“P”) is accountable to |
| |
the Commissioners for Her Majesty’s Revenue and Customs |
| |
under a relevant enactment for an amount that has been or is to be |
| |
set off against a liability of another person (“T”) under a relevant |
| |
| 45 |
|
| |
|
| |
|
(2) | A claim under paragraph 51 in respect of the amount may be made |
| |
| |
(3) | Sub-paragraph (4) applies where— |
| |
(a) | a person (“P”) has paid an amount described in sub- |
| |
paragraph (1) in the belief that P was accountable to the |
| 5 |
Commissioners for the amount under a relevant |
| |
| |
(b) | P was not so accountable. |
| |
(4) | A claim under paragraph 51 in respect of the amount may be made |
| |
| 10 |
(5) | The Commissioners for her Majesty’s Revenue and Customs are |
| |
not liable to give effect to a claim under sub-paragraph (4) if or to |
| |
the extent that the amount has been repaid to T or set against |
| |
amounts payable to the Commissioners by T. |
| |
(6) | “Relevant enactment” means— |
| 15 |
(a) | Chapter 3 of Part 3 of the Finance Act 2004 or regulations |
| |
under that Chapter (construction industry scheme), or |
| |
(b) | any other provision of or made under the Taxes Acts. |
| |
The claimant: partnerships |
| |
51D (1) | This paragraph applies where— |
| 20 |
(a) | a trade, profession or business is carried on by two or more |
| |
| |
(b) | an amount is paid, or liable to be paid, by one or more of |
| |
those persons in accordance with a self-assessment, and |
| |
(c) | the amount is excessive by reason of a mistake in a |
| 25 |
| |
(2) | A claim under paragraph 51 in respect of the amount— |
| |
(a) | may be made by the relevant partner nominated to make |
| |
the claim by all of the relevant partners, and |
| |
(b) | may not be made by any other person. |
| 30 |
(3) | In relation to such a claim, references in paragraphs 51A to 51F to |
| |
the claimant are to any of the relevant partners. |
| |
(4) | “Relevant partner” means— |
| |
(a) | a person who was a partner in the partnership at any time |
| |
during the period in respect of which the partnership |
| 35 |
| |
(b) | the personal representative of such a person. |
| |
Assessment of claimant in connection with claim |
| |
51E (1) | This paragraph applies where— |
| |
(a) | a claim is made under paragraph 51, |
| 40 |
(b) | the grounds for giving effect to the claim also provide |
| |
grounds for a discovery assessment or discovery |
| |
determination on the claimant in respect of any accounting |
| |
| |
|
| |
|
| |
|
(c) | such an assessment or determination could be made but |
| |
for a relevant restriction. |
| |
(2) | The following are relevant restrictions— |
| |
(a) | the restrictions in paragraphs 42 to 45, and |
| |
(b) | the expiry of a time limit for making a discovery |
| 5 |
assessment or discovery determination. |
| |
(3) | Where this paragraph applies— |
| |
(a) | the relevant restrictions are to be disregarded, and |
| |
(b) | the discovery assessment or discovery determination is not |
| |
out of time if it is made before the final determination of |
| 10 |
| |
(4) | A claim is not finally determined until it, or the amount to which |
| |
it relates, can no longer be varied (whether on appeal or |
| |
| |
Amendment of partnership return etc in connection with claim |
| 15 |
51F (1) | This paragraph applies where— |
| |
(a) | a claim is made under paragraph 51, |
| |
(b) | the claimant is one of two or more persons carrying on a |
| |
trade, profession or business in partnership, |
| |
(c) | the grounds for giving effect to the claim also provide |
| 20 |
grounds for amending, under section 30B(1) of the Taxes |
| |
Management Act 1970 (discovery of loss of tax from |
| |
partnership), a return made by the partnership or any of |
| |
the partners in respect of any period, and |
| |
(d) | such an amendment could be made but for a relevant |
| 25 |
| |
(2) | The following are relevant restrictions— |
| |
(a) | the conditions in section 30B(4) to (6) of the Taxes |
| |
| |
(b) | the expiry of a time limit for making an assessment under |
| 30 |
| |
(3) | Where this paragraph applies— |
| |
(a) | the relevant conditions are to be disregarded, and |
| |
(b) | the amendment is not out of time if it is made before the |
| |
final determination of the claim. |
| 35 |
(4) | A claim is not finally determined until it, or the amount to which |
| |
it relates, can no longer be varied (whether on appeal or |
| |
| |
| |
51G (1) | In paragraph 51(1)(a), the reference to an amount paid by a |
| 40 |
company by way of tax includes an amount paid by a person |
| |
under a contract settlement in connection with tax believed to be |
| |
| |
|
| |
|
| |
|
(2) | Sub-paragraphs (3) to (6) apply if the person who paid the amount |
| |
under the contract settlement (“the payer”) and the person from |
| |
whom the tax was due (“the taxpayer”) are not the same person. |
| |
(3) | In relation to a claim under paragraph 51 in respect of that |
| |
| 5 |
(a) | the references to the claimant in paragraph 51A(5) to (7) |
| |
(Cases D, E and F) have effect as if they included the |
| |
| |
(b) | the reference to the claimant in paragraph 51A(8) (Case G) |
| |
has effect as if it were a reference to the taxpayer, |
| 10 |
(c) | the references to the claimant in paragraphs 51E(1)(b) and |
| |
51F(1)(b) have effect as if they were references to the |
| |
| |
(d) | references to tax in Schedule 1A to the Taxes Management |
| |
Act 1970 (as it applies to a claim under this Part of this |
| 15 |
Schedule) include such an amount. |
| |
(4) | Sub-paragraph (5) applies where the grounds for giving effect to a |
| |
claim by the payer in respect of the amount also provide grounds |
| |
for a discovery assessment or discovery determination on the |
| |
taxpayer in respect of any chargeable period. |
| 20 |
(5) | The Commissioners for Her Majesty’s Revenue and Customs may |
| |
set any amount repayable to the payer by virtue of the claim |
| |
against any amount payable by the taxpayer by virtue of the |
| |
assessment or determination. |
| |
(6) | The obligations of the Commissioners for Her Majesty’s Revenue |
| 25 |
and Customs and the taxpayer are discharged to the extent of any |
| |
set-off under sub-paragraph (5). |
| |
(7) | “Contract settlement” means an agreement made in connection |
| |
with any person’s liability to make a payment to the |
| |
Commissioners for Her Majesty’s Revenue and Customs under or |
| 30 |
by virtue of an enactment.” |
| |
14 | Accordingly, in the heading of Part 6, at the beginning insert “Overpaid |
| |
| |
15 (1) | Paragraph 62 (consequential claims etc that may be made) is amended as |
| |
| 35 |
(2) | After sub-paragraph (1) insert— |
| |
“(1A) | This paragraph applies to a claim under paragraph 51 relating to |
| |
the accounting period in respect of which the amendment or |
| |
| |
(3) | In sub-paragraph (2), for “a claim” substitute “any other claim”. |
| 40 |
16 | In paragraph 88 (conclusiveness of amounts stated in return), insert at the |
| |
| |
“(8) | Nothing in this paragraph affects a power of the company making |
| |
the return to make a claim under paragraph 51 (claim for relief for |
| |
| 45 |
|
| |
|
| |
|
| |
17 | In Schedule 1A to TMA 1970 (claims etc not included in returns), in |
| |
paragraph 1, in the definition of “partnership claim”, after “Act” insert “or |
| |
paragraph 51D of Schedule 18 to the Finance Act 1998 (claims for overpaid |
| |
| 5 |
| |
| |
| |
| |
Special provision: amount carrying late payment interest |
| |
Payments on account and balancing payment |
| 10 |
1 (1) | This paragraph applies where as regards a tax year— |
| |
(a) | payments on account are payable by a person (“P”), |
| |
(b) | P makes a claim under section 59A(3) or (4) of TMA 1970 (reduction |
| |
of payments on account) in respect of those amounts, and |
| |
(c) | a balancing payment becomes payable by P. |
| 15 |
(2) | Late payment interest is to be calculated as if each of the payments on |
| |
account had been equal to the lesser of the following amounts— |
| |
(a) | the aggregate of that payment on account and 50% of the balancing |
| |
| |
(b) | the amount which would have been payable as a payment on |
| 20 |
account if the claim under section 59A(3) or (4) had not been made. |
| |
(3) | In determining for the purposes of this paragraph what amount (if any) is |
| |
payable by P as a balancing payment— |
| |
(a) | it is to be assumed that both of the payments on account have been |
| |
| 25 |
(b) | no account is to be taken of any amount which has been paid on |
| |
account otherwise than under section 59A(2) of TMA 1970, and |
| |
(c) | no account is to be taken of any amount which is payable by way of |
| |
| |
| 30 |
“balancing payment” means an amount payable— |
| |
(a) | in accordance with section 59B(3), (4) or (5) of TMA 1970, or |
| |
(b) | in accordance with section 59B(6) of that Act in respect of |
| |
income tax assessed under section 29 of that Act; |
| |
“payment on account” means an amount payable in accordance with |
| 35 |
section 59A(2) of TMA 1970. |
| |
Payments on account and overpayment |
| |
2 (1) | This paragraph applies where as regards any person (“P”) and a tax year— |
| |
(a) | payments on account become payable by P, and |
| |
(b) | an overpayment becomes repayable to P. |
| 40 |
|
| |
|