Memorandum by Inland Revenue
1999 (S.I. 1999/3219)
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
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