Joint Committee on Statutory Instruments Sixth Report


Memorandum by Inland Revenue


  1. In his letter dated 15th December 1999 the Commons Clerk of the Joint Committee requested the Inland Revenue to submit a memorandum on the following point:

    Regulation 11 provides for the Board to pay tax credits to employees, in the circumstances there mentioned. Explain what provision of section 6 of the 1999 Act authorises such payments by the Board as distinct from payments by employers (as expressly mentioned in section 6(1) and the opening words of section 6(2)).

  2. It is considered that the authorisation for payments of tax credit by the Board does not fall within section 6 of the Tax Credits Act 1999, but derives from section 5 of the 1999 Act which provides that working families' tax credit and disabled person's tax credit shall be under the care and management of the Board. Section 6 is thus to be seen as an exception to the general principle derived from section 5 that payment of tax credit is the responsibility of the Board and their officers.

  3. This raises the question whether provisions such as section 5 of the 1999 Act, which are not themselves regulatory enabling powers, should be included in the recital of enabling provisions of a statutory instrument. For example it is not clear to the Inland Revenue whether provisions such as section 113(1) of the Taxes Management Act 1970 (returns under the Taxes Acts to be in such form as the Board prescribe) should be included in the recital of powers in a statutory instrument which contains a regulation prescribing the form of a return. It is also not clear to the Inland Revenue whether the words "and of all other powers enabling them in that behalf" (quoted in paragraph 2.23 of Statutory Instrument Practice) are appropriate in circumstances where the provisions in question are not themselves regulatory powers.

  4. However, the Inland Revenue appreciates that this may be considered to be an ambiguous area and that there are arguments in favour of the citing of non-regulatory provisions of primary legislation such as that mentioned in the previous paragraph, or perhaps preferably the use of the words "and of all other powers enabling them in that behalf". The Inland Revenue would be content to adopt this course if the Committee considers it appropriate.

20 December 1999

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