|
| |
|
(d) | a mistake in bringing a disposal value into account for the |
| |
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 Income Tax Acts or an enactment |
| 5 |
relating to the taxation of capital gains. |
| |
(4) | Case C is where the claimant— |
| |
(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 |
| 10 |
of that period that such relief was available. |
| |
(5) | Case D is where the claim is made on grounds that— |
| |
(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 |
| |
| 15 |
(b) | have been put to Her Majesty’s Revenue and Customs in |
| |
the course of an appeal by the claimant relating to that |
| |
amount that is treated as having been determined by a |
| |
tribunal (by virtue of section 54 (settling of appeals by |
| |
| 20 |
(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 |
| |
| |
(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 |
| 25 |
ground could have been put forward (a “relevant appeal”) |
| |
was determined by a court or tribunal (or is treated as |
| |
having been so determined), |
| |
(b) | the date on which the claimant withdrew a relevant appeal |
| |
to a court or tribunal, and |
| 30 |
(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 |
| |
| |
(a) | in consequence of proceedings enforcing the payment of |
| 35 |
that amount brought against the claimant by Her Majesty’s |
| |
| |
(b) | in accordance with an agreement between the claimant |
| |
and Her Majesty’s Revenue and Customs settling such |
| |
| 40 |
| |
(a) | the amount paid, or liable to be paid, is excessive by reason |
| |
of a mistake in calculating the claimant’s liability to |
| |
income tax or capital gains tax (other than a mistake in a |
| |
PAYE assessment or PAYE calculation), and |
| 45 |
(b) | liability was calculated in accordance with the practice |
| |
generally prevailing at the time. |
| |
| |
|
| |
|
| |
|
(a) | the amount paid, or liable to be paid, is excessive by reason |
| |
of a mistake in a PAYE assessment or PAYE calculation, |
| |
| |
(b) | the assessment or calculation was made in accordance |
| |
with the practice generally prevailing at the end of the |
| 5 |
period of 12 months following the tax year for which the |
| |
assessment or calculation was made. |
| |
(10) | For the purposes of Cases G and H— |
| |
(a) | “PAYE assessment” means an assessment on the claimant |
| |
made in accordance with section 709 of ITEPA 2003 |
| 10 |
(assessment in connection with PAYE deductions), and |
| |
(b) | “PAYE calculation” means a calculation of the amount of a |
| |
deduction or repayment made or to be made under PAYE |
| |
regulations in respect of tax estimated to be payable by the |
| |
| 15 |
| |
3 (1) | A claim under this Schedule may not be made more than 4 years |
| |
after the end of the relevant tax year. |
| |
(2) | In relation to a claim made in reliance on paragraph 1(1)(a), the |
| |
| 20 |
(a) | where the amount paid, or liable to be paid, is excessive by |
| |
reason of a mistake in a return or returns under section 8, |
| |
8A or 12AA of this Act, the tax year to which the return (or, |
| |
if more than one, the first return) relates, and |
| |
(b) | otherwise, the tax year in respect of which the payment |
| 25 |
| |
(3) | In relation to a claim made in reliance on paragraph 1(1)(b), the |
| |
relevant tax year is the tax year to which the assessment, |
| |
determination or direction relates. |
| |
(4) | A claim under this Schedule may not be made by being included |
| 30 |
in a return under section 8, 8A or 12AA of this Act. |
| |
The claimant: one person accountable for amounts payable by another etc |
| |
4 (1) | Sub-paragraph (2) applies where, under a relevant enactment, a |
| |
person (“P”) is accountable to the Commissioners for— |
| |
(a) | an amount representing income tax or capital gains tax |
| 35 |
that is or is estimated to be payable by another person |
| |
| |
(b) | any other amount that, under a relevant enactment, has |
| |
been or is to be set off against a liability of T. |
| |
(2) | A claim under this Schedule in respect of the amount may be made |
| 40 |
| |
(3) | Sub-paragraph (4) applies where— |
| |
(a) | a person (“P”) has paid an amount described in sub- |
| |
paragraph (1)(a) or (b) in the belief that P was accountable |
| |
to the Commissioners for the amount under a relevant |
| 45 |
| |
|
| |
|
| |
|
(b) | P was not so accountable. |
| |
(4) | A claim under this Schedule in respect of the amount may be made |
| |
| |
(5) | The Commissioners are not liable to give effect to a claim under |
| |
sub-paragraph (4) if or to the extent that the amount has been |
| 5 |
repaid to T or set against amounts payable to the Commissioners |
| |
| |
(6) | “Relevant enactment” means— |
| |
| |
(b) | Chapter 3 of Part 3 of the Finance Act 2004 or regulations |
| 10 |
under that Chapter (construction industry scheme), or |
| |
(c) | any other provision of or made under the Taxes Acts. |
| |
The claimant: partnerships |
| |
5 (1) | This paragraph applies where— |
| |
(a) | a trade, profession or business is carried on by two or more |
| 15 |
| |
(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 |
| |
| 20 |
(2) | A claim under this Schedule 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. |
| |
(3) | In relation to such a claim, references in this Schedule to the |
| 25 |
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 |
| |
| 30 |
(b) | the personal representative of such a person. |
| |
Assessment of claimant in connection with claim |
| |
6 (1) | This paragraph applies where— |
| |
(a) | a claim is made under this Schedule, |
| |
(b) | the grounds for giving effect to the claim also provide |
| 35 |
grounds for a discovery assessment or determination on |
| |
the claimant in respect of any chargeable period, and |
| |
(c) | such an assessment or determination could be made but |
| |
for a relevant restriction. |
| |
(2) | “Discovery assessment or determination” means— |
| 40 |
(a) | an assessment under section 29(1), or |
| |
(b) | a discovery assessment or discovery determination under |
| |
Schedule 18 to the Finance Act 1998 (company tax return |
| |
| |
|
| |
|
| |
|
(3) | The following are relevant restrictions— |
| |
(a) | the conditions in section 29(3) to (5), |
| |
(b) | the restrictions in paragraphs 42 to 45 of Schedule 18 to the |
| |
| |
(c) | the expiry of a time limit for making a discovery |
| 5 |
assessment or determination. |
| |
(4) | Where this paragraph applies— |
| |
(a) | the relevant restrictions are to be disregarded, and |
| |
(b) | the discovery assessment or determination is not out of |
| |
time if it is made before the final determination of the |
| 10 |
| |
Amendment of partnership return etc in connection with claim |
| |
7 (1) | This paragraph applies where— |
| |
(a) | a claim is made under this Schedule, |
| |
(b) | the claimant is one of two or more persons carrying on a |
| 15 |
trade, profession or business in partnership, |
| |
(c) | the grounds for giving effect to the claim also provide |
| |
grounds for amending, under section 30B(1) (discovery of |
| |
loss of tax from partnership), a return made by the |
| |
partnership or any of the partners in respect of any period, |
| 20 |
| |
(d) | such an amendment could be made but for a relevant |
| |
| |
(2) | The following are relevant restrictions— |
| |
(a) | the conditions in section 30B(4) to (6), and |
| 25 |
(b) | the expiry of a time limit for making an assessment under |
| |
| |
(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 |
| 30 |
final determination of the claim. |
| |
| |
8 (1) | In paragraph 1(1)(a), the reference to an amount paid by way of |
| |
income tax or capital gains tax includes an amount paid under a |
| |
contract settlement in connection with income tax or capital gains |
| 35 |
tax believed to be due from any person. |
| |
(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 this Schedule in respect of that |
| 40 |
| |
(a) | the references to the claimant in paragraph 2(5) to (7) |
| |
(Cases D, E and F) have effect as if they included the |
| |
| |
|
| |
|
| |
|
(b) | the references to the claimant in paragraph 2(8) and (10) |
| |
(Cases G and H) have effect as if they were references to |
| |
| |
(c) | the references to the claimant in paragraphs 6(1)(b) and |
| |
7(1)(b) have effect as if they were references to the |
| 5 |
| |
(d) | references to tax in Schedule 1A (as it applies to a claim |
| |
under this 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 |
| 10 |
for a discovery assessment or determination on the taxpayer in |
| |
respect of any chargeable period. |
| |
(5) | The Commissioners 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. |
| 15 |
(6) | The obligations of the Commissioners and the taxpayer are |
| |
discharged to the extent of any set-off under sub-paragraph (5). |
| |
| |
“contract settlement” means an agreement made in |
| |
connection with any person’s liability to make a payment |
| 20 |
to the Commissioners under or by virtue of an enactment; |
| |
“discovery assessment or determination” has the same |
| |
meaning as in paragraph 6. |
| |
| |
9 (1) | In this Schedule “the Commissioners” means the Commissioners |
| 25 |
for Her Majesty’s Revenue and Customs. |
| |
(2) | For the purposes of this Schedule, a claim is not finally determined |
| |
until it, or the amount to which it relates, can no longer be varied |
| |
(whether on appeal or otherwise).” |
| |
| 30 |
3 | TMA 1970 is amended as follows. |
| |
4 | For the heading before section 32 substitute “Overpaid tax, excessive |
| |
| |
5 (1) | Section 43A (further assessments etc) is amended as follows. |
| |
(2) | After subsection (2A) insert— |
| 35 |
“(2B) | For the purposes of this section and section 43B below, a claim under |
| |
Schedule 1AB is relevant in relation to an assessment for a year of |
| |
assessment if it relates to that year of assessment.” |
| |
(3) | In subsection (3), for “a claim” substitute “any other claim”. |
| |
6 (1) | In paragraph 1 of Schedule 1A (claims etc not included in returns), in the |
| 40 |
definition of “partnership claim”, after “46(2)(b) of” insert “, or paragraph 5 |
| |
| |
|
| |
|
| |
|
7 (1) | Paragraph 4 of that Schedule (giving effect to claims and amendments) is |
| |
| |
(2) | In sub-paragraph (1)— |
| |
(a) | for “and (4)” substitute “to (5)”, and |
| |
(b) | omit “and to any other provision in the Taxes Acts which otherwise |
| 5 |
| |
(3) | In sub-paragraph (2), for “and (4)” substitute “to (5)”. |
| |
| |
“(5) | This paragraph has effect subject to any provision in the Taxes |
| |
| 10 |
(a) | requires or allows effect to be given to a claim by other |
| |
| |
(b) | provides that an amount is not to be discharged or repaid.” |
| |
8 | In Schedule 3ZA (date by which payment to be made after amendment or |
| |
correction of self-assessment), omit paragraph 10 (amendment following |
| 15 |
claim for error or mistake relief). |
| |
9 (1) | Section 70H of CAA 2001 (lessee: requirement for tax return treating lease as |
| |
long funding lease) is amended as follows. |
| |
(2) | In subsection (2), for “for relief under the error or mistake provisions in |
| |
respect of” substitute “under the recovery provisions for relief in respect of |
| 20 |
an amount paid or liable to be paid that is excessive by reason of”. |
| |
| |
(a) | for ““the error or mistake provisions”” substitute ““the recovery |
| |
| |
(b) | for “section 33 of” substitute “Schedule 1AB to”. |
| 25 |
| |
10 (1) | In relation to a relevant claim, paragraph 3(1) of Schedule 1AB to TMA 1970 |
| |
(inserted by this Part of this Schedule) has effect as if for “more than 4 years |
| |
after” there were substituted “more than 5 years after the 31st January next |
| |
| 30 |
(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 |
| 35 |
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 |
| 40 |
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 |
| |
| |
|
| |
|
| |
|
| |
| |
Claims for recovery of overpaid tax etc |
| |
12 | Schedule 18 to FA 1998 (company tax returns, assessments and related |
| |
matters) is amended as follows. |
| 5 |
13 | For paragraph 51 (and the heading before that paragraph) substitute— |
| |
“Claim for relief for overpaid tax etc |
| |
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 |
| 10 |
(b) | a person has been assessed as liable to pay an amount by |
| |
way of tax, or there has been a determination or direction |
| |
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 |
| 15 |
| |
(3) | Paragraph 51A makes provision about cases in which the |
| |
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 |
| 20 |
effect to claims under this paragraph— |
| |
(a) | paragraphs 51B to 51F and Part 7 of this Schedule, and |
| |
(b) | Schedule 1A to the Taxes Management Act 1970 (which is |
| |
| |
(5) | Paragraph 51G makes provision about the application of this |
| 25 |
paragraph and paragraphs 51A to 51F to amounts paid under |
| |
| |
(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— |
| 30 |
(a) | by this Schedule and Schedule 1A to the Taxes |
| |
Management Act 1970 (following a claim under this |
| |
| |
(b) | by or under another provision of the Corporation Tax Acts. |
| |
(7) | For the purposes of this paragraph and paragraphs 51A to 51G, an |
| 35 |
amount paid by one person on behalf of another is treated as paid |
| |
| |
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 |
| 40 |
extent that the claim falls within a case described in this paragraph |
| |
(see also paragraph 51C(5)). |
| |
|
| |
|