(1) If a person (“N”) is notified of a promoter reference number under section 250, 251 or 252, N must report the number to the Commissioners if N expects to obtain a tax advantage from relevant arrangements in relation to which the monitored promoter to whom the reference number relates (whether that is N or another person) is the promoter.
(2) A report under this section—
(a) must be made in (or, if prescribed circumstances exist, submitted with) each tax return made by N for a period that is or includes a period for which the arrangements enable N to obtain a tax advantage (whether in relation to the tax to which the return relates or another tax);
(b) if no tax return falls within paragraph (a), or in the case mentioned in subsection (3), must contain such information, and be made in such form and manner and within such time, as is prescribed.
(3) The case is that the tax return in which the report would (apart from this subsection) have been made is not submitted—
(a) by the filing date, or
(b) if there is no filing date in relation to the tax return concerned, by such other time that the tax return is required to be submitted by or under any enactment.
(4) Where N expects to obtain the tax advantage referred to in subsection (1) in respect of inheritance tax, stamp duty land tax, stamp duty reserve tax or petroleum revenue tax—
(a) subsection (2) does not apply in relation to that tax advantage, and
(b) a report under this section in respect of that tax must be in such form and manner and contain such information and be made within such time as is prescribed.
(5) Where the relevant arrangements referred to in subsection (1) give rise to N making a claim under section 261B of TCGA 1992 (treating trade loss as CGT loss) or for loss relief under Part 4 of ITA 2007 and that claim is not contained in a tax return, a report under this section must also be made in that claim.
(6) In this section “tax return” means any of the following—
(a) a return under section 8 of TMA 1970 (income tax and capital gains tax: personal return);
(b) a return under section 8A of TMA 1970 (income tax and capital gains tax: trustee's return);
(c) a return under section 12AA of TMA 1970 (income tax and corporation tax: partnership return);
(d) a company tax return under paragraph 3 of Schedule 18 to the FA 1998 (company tax return);
(da) a return under regulations made under section 105 of FA 2016 (apprenticeship levy);
(e) a return under section 159 or 160 of FA 2013 (returns and further returns for annual tax on enveloped dwellings).
254 Meaning of “monitored proposal” and “monitored arrangements”
(1) For the purposes of this Part a relevant proposal in relation to which a person (“P”) is a promoter is a “monitored proposal” in relation to P if any of the following dates fell on or after the date on which a monitoring notice took effect—
(a) the date on which P first made a firm approach to another person in relation to the relevant proposal;
(b) the date on which P first made the relevant proposal available for implementation by any other person;
(c) the date on which P first became aware of any transaction forming part of the proposed arrangements being entered into by any person.
(2) For the purposes of this Part relevant arrangements in relation to which a person (“P”) is a promoter are “monitored arrangements” in relation to P if—
(a) P was by virtue of section 235(2)(b) or (c) a promoter in relation to a relevant proposal which was implemented by the arrangements and any of the following fell on or after the date on which the monitoring notice took effect—
(i) the date on which P first made a firm approach to another person in relation to the relevant proposal;
(ii) the date on which P first made the relevant proposal available for implementation by any other person;
(iii) the date on which P first became aware of any transaction forming part of the proposed arrangements being entered into by any person,
(b) the date on which P first took part in designing, organising or managing the arrangements fell on or after the date on which a monitoring notice took effect, or
(c) the arrangements enable, or are likely to enable, the person who has entered into transactions forming them to obtain the tax advantage by reason of which they are relevant arrangements, at any time on or after the date on which a monitoring notice took effect.
(1) An authorised officer, or an officer of Revenue and Customs with the approval of an authorised officer, may by notice in writing require any person (“P”) to whom this section applies—
(a) to provide information, or
(b) to produce a document,
if the information or document is reasonably required by the officer for any of the purposes in subsection (3).
(2) This section applies to—
(a) any person who is a monitored promoter, and
(b) any person who is a relevant intermediary in relation to a monitored proposal of a monitored promoter,
and in either case that monitored promoter is referred to below as “the relevant monitored promoter”.
(3) The purposes mentioned in subsection (1) are—
(a) considering the possible consequences of implementing a monitored proposal of the relevant monitored promoter for the tax position of persons implementing the proposal,
(b) checking the tax position of any person who the officer reasonably believes has implemented a monitored proposal of the relevant monitored promoter, or
(c) checking the tax position of any person who the officer reasonably believes has entered into transactions forming monitored arrangements of the relevant monitored promoter.
(4) A person is a “relevant intermediary” in relation to a monitored proposal if the person meets the conditions in section 236(a) to (c) (meaning of “intermediary”) in relation to the proposal at any time after the person has been notified of a promoter reference number of a person who is a promoter in relation to the proposal.
(5) In this section “checking” includes carrying out an investigation or enquiry of any kind.
(6) In this section “tax position”, in relation to a person, means the person's position as regards any tax, including the person's position as regards—
(a) past, present and future liability to pay any tax,
(b) penalties and other amounts that have been paid, or are or may be payable, by or to the person in connection with any tax,
(c) claims, elections, applications and notices that have been or may be made or given in connection with the person's liability to pay any tax,
(d) deductions or repayments of tax, or of sums representing tax, that the person is required to make—
(i) under PAYE regulations, or
(ii) by or under any other provision of the Taxes Acts, and
(e) the withholding by the person of another person's PAYE income (as defined in section 683 of ITEPA 2003).
(7) In this section the reference to the tax position of a person—
(a) includes the tax position of a company that has ceased to exist and an individual who has died, and
(b) is to the person's tax position at any time or in relation to any period.
(8) A notice under subsection (1) which is given for the purpose of checking the tax position of a person mentioned in subsection (3)(b) or (c) may not be given more than 4 years after the person's death.
(9) A notice under subsection (1) may specify or describe the information or documents to be provided or produced.
(10) Information or a document required as a result of a notice under subsection (1) must be provided or produced within—
(a) the period of 10 days beginning with the day on which the notice was given, or
(b) such longer period as the officer who gives the notice may direct.
256 Tribunal approval for certain uses of power under section 255
(1) An officer of Revenue and Customs may not, without the approval of the tribunal, give a notice under section 255 requiring a person (“A”) to provide information or produce a document which relates (in whole or in part) to a person who is neither A nor an undertaking in relation to which A is a parent undertaking.
(2) An officer of Revenue and Customs may apply to the tribunal for the approval required by subsection (1); and an application for approval may be made without notice.
(3) The tribunal may approve the giving of the notice only if—
(a) the application for approval is made by, or with the agreement of, an authorised officer,
(b) the tribunal is satisfied that, in the circumstances, the officer giving the notice is justified in doing so,
(c) the person to whom the notice is to be given has been informed that the information or documents referred to in the notice are required and given a reasonable opportunity to make representations to an officer of Revenue and Customs, and
(d) the tribunal has been given a summary of any representations made by that person.
(4) Where a notice is given under section 255 with the approval of the tribunal, it must state that it is given with that approval.
(5) Paragraphs (c) and (d) of subsection (3) do not apply to the extent that the tribunal is satisfied that taking the action specified in those paragraphs might prejudice the assessment or collection of tax.
(6) In subsection (1) “parent undertaking” and “undertaking” have the same meaning as in the Companies Acts (see section 1161 and 1162 of, and Schedule 7 to, the Companies Act 2006).
(7) A decision of the tribunal under this section is final (despite the provisions of sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007).
257 Ongoing duty to provide information following HMRC notice
(1) An authorised officer, or an officer of Revenue and Customs with the approval of an authorised officer, may give a notice to a person (“P”) in relation to whom a monitoring notice has effect.
(2) A person to whom a notice is given under subsection (1) must provide prescribed information and produce prescribed documents relating to—
(a) all the monitored proposals and all the monitored arrangements in relation to which the person is a promoter at the time of the notice, and
(b) all the monitored proposals and all the monitored arrangements in relation to which the person becomes a promoter after that time.
(3) The duty under subsection (2)(b) does not apply in relation to any proposals or arrangements in relation to which the person first becomes a promoter after the monitoring notice ceases to have effect.
(4) A notice under subsection (1) must specify the time within which information must be provided or a document produced and different times may be specified for different cases.
258 Duty of person dealing with non-resident monitored promoter
(1) This section applies where a monitored promoter who is resident outside the United Kingdom has failed to comply with a duty under section 255 or 257 to provide information about a monitored proposal or monitored arrangements.
(2) An authorised officer, or an officer of Revenue and Customs with the approval of an authorised officer, may give a notice to a relevant person which—
(a) specifies or describes the information which the monitored promoter has failed to provide, and
(b) requires the person to provide the information.
(3) A “relevant person” means—
(a) any person who is an intermediary in relation to the monitored proposal concerned, ...
(aa) any person who falls within the case described in paragraph 3 of Schedule 33A by virtue of acting under the instruction or guidance of the monitored promoter, and
(b) any person (“A”) to whom the monitored promoter has made a firm approach in relation to the monitored proposal concerned with a view to making the proposal available for implementation by a person other than A.
(4) If an authorised officer is not aware of any person to whom a notice could be given under subsection (2) the authorised officer, or an officer of Revenue and Customs with the approval of the authorised officer, may give a notice to any person who has implemented the proposal which—
(a) specifies or describes the information which the monitored promoter has failed to provide, and
(b) requires the person to provide the information.
(5) If the duty mentioned in subsection (1) relates to monitored arrangements an authorised officer, or an officer of Revenue and Customs with the approval of an authorised officer, may give a notice to any person who has entered into any transaction forming part of the monitored arrangements concerned which—
(a) specifies or describes the information which the monitored promoter has failed to provide, and
(b) requires the person to provide the information.
(6) A notice under this section may be given only if the officer giving the notice reasonably believes that the person to whom the notice is given is able to provide the information requested.
(7) Information required as a result of a notice under this section must be provided within—
(a) the period of 10 days beginning with the day on which the notice was given, or
(b) such longer period as the officer who gives the notice may direct.
259 Monitored promoters: duty to provide information about clients
(1) An authorised officer, or an officer of Revenue and Customs with the approval of an authorised officer, may give notice to a person in relation to whom a monitoring notice has effect (“the monitored promoter”).
(2) A person to whom a notice is given under subsection (1) must, for each relevant period, give the officer who gave the notice the information set out in subsection (9) in respect of each person who was its client with reference to that relevant period (see subsections (5) to (8)).
(3) Each of the following is a “relevant period”—
(a) the calendar quarter in which the notice under subsection (1) was given but not including any time before the monitoring notice takes effect,
(b) the period (if any) beginning with the date the monitoring notice takes effect and ending immediately before the beginning of the period described in paragraph (a), and
(c) each calendar quarter after the period described in paragraph (a) but not including any time after the monitoring notice ceases to have effect.
(4) Information required as a result of a notice under subsection (1) must be given—
(a) within the period of 30 days beginning with the end of the relevant period concerned, or
(b) in the case of a relevant period within subsection (3)(b), within the period of 30 days beginning with the day on which the notice under subsection (1) was given if that period would expire at a later time than the period given by paragraph (a).
(5) A person (“C”) is a client of the monitored promoter with reference to a relevant period if—
(a) the promoter did any of the things mentioned in subsection (6) in relation to C at any time during that period, or
(b) the person falls within subsection (7).
(6) Those things are that the monitored promoter—
(a) made a firm approach to C in relation to a relevant proposal with a view to the promoter making the proposal available for implementation by C or another person;
(b) made a relevant proposal available for implementation by C;
(c) took part in the organisation or management of relevant arrangements entered into by C.
(7) A person falls within this subsection if the person has entered into transactions forming part of relevant arrangements and those arrangements—
(a) enable the person to obtain a tax advantage either in that relevant period or a later relevant period, and
(b) are either relevant arrangements in relation to which the monitored promoter is or was a promoter, or implement a relevant proposal in relation to which the monitored promoter was a promoter.
(8) But a person is not a client of the monitored promoter with reference to a relevant period if—
(a) the person has previously been a client of the monitored promoter with reference to a different relevant period,
(b) the promoter complied with the duty in subsection (2) in respect of the person for that relevant period, and
(c) the information provided as a result of complying with that duty remains accurate.
(9) The information mentioned in subsection (2) is—
(a) the person's name and address, and
(b) such other information about the person as may be prescribed.
(10) Where the monitoring notice mentioned in subsection (1) is a replacement monitoring notice, subsection (5)(b) does not impose a duty on the monitored promoter concerned to provide information about a person who has entered into transactions forming part of relevant arrangements (as described in subsection (7)) if the monitored promoter reasonably believes that information about that person has, in relation to those arrangements, already been provided under the original monitoring notice.
260 Intermediaries etc: duty to provide information about clients
(1) An authorised officer, or an officer of Revenue and Customs with the approval of an authorised officer, may give notice to
(a) a person (“the intermediary”) who is an intermediary in relation to a relevant proposal which is a monitored proposal of a person in relation to whom a monitoring notice has effect (“the monitored promoter”);
(b) a person who falls within the case described in paragraph 3 of Schedule 33A by virtue of acting under the instruction or guidance of the monitored promoter.
(2) A person to whom a notice is given under subsection (1) must, for each relevant period, give the officer who gave the notice the information set out in subsection (7) in respect of each person who was its client with reference to that relevant period (see subsections (5) to (6)).
(3) Each of the following is a “relevant period”—
(a) the calendar quarter in which the notice under subsection (1) was given but not including any time before the person to whom the notice is given was first notified under section 250, 251 or 252 of the promoter reference number of the monitored promoter,
(b) the period (if any) beginning with the date of the notification under section 250, 251 or 252 and ending immediately before the beginning of the period described in paragraph (a), and
(c) each calendar quarter after the period described in paragraph (a) but not including any time after the monitoring notice mentioned in subsection (1) ceases to have effect.
(4) Information required as a result of a notice under subsection (1) must be given—
(a) within the period of 30 days beginning with the end of the relevant period concerned, or
(b) in the case of a relevant period within subsection (3)(b), within the period of 30 days beginning with the day on which the notice under subsection (1) was given if that period would expire at a later time than the period given by paragraph (a).
(5) A person (“C”) is a client of the person to whom the notice under subsection (1) is given (“R”) with reference to a relevant period if during that period—
(a) R communicated information to C about a monitored proposal in the course of a business, and
(b) the communication was made with a view to C, or any other person, entering into transactions forming part of the proposed arrangements.
(6) But a person is not a client of R with reference to a relevant period if—
(a) the person has previously been a client of R with reference to a different relevant period,
(b) R complied with the duty in subsection (2) in respect of the person for that relevant period, and
(c) the information provided as a result of complying with that duty remains accurate.
(7) The information mentioned in subsection (2) is—
(a) the person's name and address, and
(b) such other information about the person as may be prescribed.
261 Enquiry following provision of client information
(1) This section applies where—
(a) a person (“the notifying person”) has provided information under section 259 or 260 about a person who was a client of the notifying person with reference to a relevant period (within the meaning of the section concerned) in connection with a particular relevant proposal or particular relevant arrangements, and
(b) an authorised officer suspects that a person in respect of whom information has not been provided under section 259 or 260—
(i) has at any time been, or is likely to be, a party to transactions implementing the proposal, or
(ii) is a party to a transaction forming (in whole or in part) particular relevant arrangements.
(2) The authorised officer may by notice in writing require the notifying person to provide prescribed information in relation to any person whom the notifying person might reasonably be expected to know—
(a) has been, or is likely to be, a party to transactions implementing the proposal, or
(b) is a party to a transaction forming (in whole or in part) the relevant arrangements.
(3) But a notice under subsection (2) does not impose a requirement on the notifying person to provide information which the notifying person has already provided to an authorised officer under section 259 or 260.
(4) The notifying person must comply with a requirement under subsection (2) within—
(a) 10 days of the notice, or
(b) such longer period as the authorised officer may direct.
If, on the last day of a calendar quarter, a monitoring notice has effect in relation to a person (“the monitored promoter”) the monitored promoter must within 30 days of the end of the calendar quarter inform an authorised officer of its current address.
264 Failure to provide information: application to tribunal
(1) This section applies where—
(a) a person (“P”) has provided information or produced a document in purported compliance with section 255, 257, 258, 259, 260, 261 or 262, but
(b) an authorised officer suspects that P has not provided all the information or produced all the documents required under the section concerned.
(2) The authorised officer, or an officer of Revenue and Customs with the approval of the authorised officer, may apply to the tribunal for an order requiring P to—
(a) provide specified information about persons who are its clients for the purposes of the section to which the application relates,
(b) provide specified information, or information of a specified description, about a monitored proposal or monitored arrangements,
(c) produce specified documents relating to a monitored proposal or monitored arrangements.
(3) The tribunal may make an order under subsection (2) in respect of information or documents only if satisfied that the officer has reasonable grounds for suspecting that the information or documents—
(a) are required under section 255, 257, 258, 259, 260, 261 or 262 (as the case may be), or
(b) will support or explain information required under the section concerned.
(4) A requirement by virtue of an order under subsection (2) is to be treated as part of P's duty under section 255, 257, 258, 259, 260, 261 or 262 (as the case may be).
(5) Information or a document required as a result of subsection (2) must be provided, or the document produced, within the period of 10 days beginning with the day on which the order under subsection (2) was made.
(6) An authorised officer may, by direction, extend the 10 day period mentioned in subsection (5).
265 Duty to provide information to monitored promoter
(1) This section applies where a person has been notified of a promoter reference number—
(a) under section 250 by reason of being a person falling within subsection (2)(b) of that section, or
(b) under section 251 or 252.
(2) The person notified (“C”) must within 10 days notify the person whose promoter reference number it is of—
(a) C's national insurance number (if C has one), and
(b) C's unique tax reference number (if C has one).
(3) If C has neither a national insurance number nor a unique tax reference number, C must within 10 days inform the person whose promoter reference number it is of that fact.
(4) A unique tax reference number is an identification number allocated to a person by HMRC.
(5) Subsection (2) or (3) does not impose a duty on C to provide information which C has already provided to the person whose promoter reference number it is.
266 Appeals against notices imposing information etc requirements
(1) This section applies where a person is given a notice under section 255, 257, 258, 259, 260, 261 or 262.
(2) The person to whom the notice is given may appeal against the notice or any requirement under the notice.
(3) Subsection (2) does not apply—
(a) to a requirement to provide any information or produce any document that forms part of the person's statutory records, or
(b) if the tribunal has approved the giving of the notice under section 256.
(4) For the purposes of this section, 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—
(a) the Taxes Acts, or
(b) any other enactment relating to a tax.
(5) Information and documents cease to form part of a person's statutory records when the period for which they are required to be preserved by the enactments mentioned in subsection (4) has expired.
(6) Notice of appeal must be given—
(a) in writing to the officer who gave the notice, and
(b) within the period of 30 days beginning with the day on which the notice was given.
(7) The notice of appeal must state the grounds of the appeal.
(8) On an appeal that is notified to the tribunal, the tribunal may—
(a) confirm the notice or a requirement under the notice,
(b) vary the notice or such a requirement, or
(c) set aside the notice or such a requirement.
(9) Where the tribunal confirms or varies the notice or a requirement, the person to whom the notice was given must comply with the notice or requirement—
(a) within such period as is specified by the tribunal, or
(b) if the tribunal does not specify a period, within such period as is reasonably specified in writing by an officer of Revenue and Customs following the tribunal's decision.
(10) A decision of the tribunal on an appeal under this section is final (despite the provisions of sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007).
(11) Subject to this section, the provisions of Part 5 of TMA 1970 relating to appeals have effect in relation to an appeal under this section.
(1) The Commissioners may specify the form and manner in which information required to be provided or documents required to be produced by sections 255 to 264 must be provided or produced if the provision is to be complied with.
(2) The Commissioners may specify that a document must be produced for inspection—
(a) at a place agreed between the person and an officer of Revenue and Customs, or
(b) at such place (which must not be a place used solely as a dwelling) as an officer of Revenue and Customs may reasonably specify.
(3) The production of a document in compliance with a notice under this Part is not to be regarded as breaking any lien claimed on the document.
(1) Where the effect of a notice under section 255, 257 or 262 is to require a person to produce a document, the person may comply with the requirement by producing a copy of the document, subject to any conditions or exceptions that may be prescribed.
(2) Subsection (1) does not apply where—
(a) the effect of the notice is to require the person to produce the original document, or
(b) an authorised officer, or an officer of Revenue and Customs with the approval of an authorised officer, subsequently makes a request in writing to the person for the original document.
(3) Where an officer requests a document under subsection (2)(b), the person to whom the request is made must produce the document—
(a) within such period, and
(b) at such time and by such means,
as is reasonably requested by the officer.
269 Exception for certain documents or information
(1) Nothing in this Part requires a person to provide or produce—
(a) information that relates to the conduct of a pending appeal relating to tax or any part of a document containing such information,
(b) journalistic material (as defined in section 13 of the Police and Criminal Evidence Act 1984) or information contained in such material, or
(c) personal records (as defined in section 12 of the Police and Criminal Evidence Act 1984) or information contained in such records (but see subsection (2)).
(2) A notice under this Part may require a person—
(a) to produce documents, or copies of documents, that are personal records, omitting any information whose inclusion (whether alone or with other information) makes the original documents personal records (“personal information”), and
(b) to provide any information contained in such records that is not personal information.
Nothing in this Part requires a person to produce a document—
(a) which is not in the possession or power of that person, or
(b) if the whole of the document originates more than 6 years before the requirement to produce it would, if it were not for this section, arise.
(1) Nothing in this Part requires any person to disclose to HMRC any privileged information.
(2) “Privileged information” means information with respect to which a claim to legal professional privilege by the person who would (ignoring the effect of this section) be required to disclose it, could be maintained in legal proceedings.
(3) In the case of legal proceedings in Scotland, the reference in subsection (2) to legal professional privilege is to be read as a reference to confidentiality of communications.
(1) This section applies where a notice is given under section 258(4) or (5) and the person to whom the notice is given is a tax adviser.
(2) The notice does not require a tax adviser—
(a) to provide information about relevant communications, or
(b) to produce documents which are the tax adviser's property and consist of relevant communications.
(3) Subsection (2) does not have effect in relation to—
(a) information explaining any information or document which the person to whom the notice is given has, as tax accountant, assisted any person in preparing for, or delivering to, HMRC, or
(b) a document which contains such information.
(4) But subsection (2) is not disapplied by subsection (3) if the information in question has already been provided, or a document containing the information has already been produced, to an officer of Revenue and Customs.
(5) In this section—
“relevant communications” means communications between the tax adviser and—
a person in relation to whose tax affairs the tax adviser has been appointed, or
any other tax adviser of such a person,
the purpose of which is the giving or obtaining of advice about any of those tax affairs, and
“tax adviser” means a person appointed to give advice about the tax affairs of another person (whether appointed directly by that person or by another tax adviser of that person).
(1) Schedule 36 to FA 2008 (information and inspection powers) applies for a relevant purpose in relation to a relevant person as it applies for the purpose of checking the tax position of a person as if—
(a) any provisions which can have no application for that purpose were omitted (for example, paragraphs 10A, 11, 12A and 12B);
(b) references to “the taxpayer” were to “the relevant person”;
(c) references to prejudice to the assessment or collection of tax included prejudice to the fulfilment of a relevant purpose;
(d) references to “business documents” included any documents (or copies of documents) in connection with any relevant arrangements or relevant proposal;
(e) references to a pending appeal relating to tax were to a pending appeal by the relevant person under this Part;
(f) in paragraph 13, after “paragraph 39” there were inserted “ of this Schedule and paragraph 2(3A) of Schedule 35 to FA 2014 ”;
(g) paragraphs 21 to 21B were omitted;
(h) paragraph 25 were omitted;
(i) in paragraph 29(1) for “a taxpayer”, in the first place it occurs, there were substituted “ a relevant person ”;
(j) Part 7 (penalties) were omitted (but see Schedule 35 of this Act).
(2) A person is “relevant” if—
(a) the officer suspects that the person carries on, or has in the past carried on, a business as a promoter in relation to a relevant proposal or relevant arrangements and—
(i) the officer suspects that the person has met a threshold condition,
(ii) the officer suspects the person could be given a defeat notice, or
(iii) the officer suspects the person promotes, or has promoted, arrangements, or proposals for such arrangements, of a description that the officer suspects could be specified in a stop notice,
(b) the officer suspects that—
(i) the person made a relevant transfer, or
(ii) the person is a person to whom a relevant transfer was made, or
(c) the person is, or was, subject to a stop notice, conduct notice or monitoring notice.
(3) The following are “relevant purposes” in relation to a relevant person—
(a) determining whether the relevant person carries on or has in the past carried on a business as a promoter in relation to a relevant proposal or relevant arrangements;
(b) determining whether the relevant person has met a threshold condition;
(c) determining whether the relevant person could be given a defeat notice;
(d) determining whether the person has provided false or misleading information or documents in relation to a stop notice, conduct notice or monitoring notice;
(e) determining whether arrangements, or proposals for such arrangements, that an officer suspects are promoted by the relevant person are of a description that could be specified in a stop notice;
(f) enabling HMRC to understand the operation of arrangements, or proposals for such arrangements, that an officer suspects are promoted by the relevant person;
(g) identifying any other person who has a connection with the relevant person that results (whether solely because of that connection or otherwise) in the relevant person being a member of a promotion structure;
(h) determining whether the relevant person made a relevant transfer, and if so to whom;
(i) determining whether a relevant transfer was made to the relevant person, and if so by whom;
(j) monitoring compliance with any stop notice, conduct notice or monitoring notice the relevant person is subject to.
(4) In this section—
(a) reference to compliance with a stop notice, conduct notice or monitoring notice includes compliance with any provisions of this Part that a person subject to such a notice must comply with;
(b) reference to a person “promoting” is to be construed in accordance with section 236A(7);
(c) “relevant transfer” has the meaning it has in paragraph 5 of Schedule 33A (promotion structures).
(1) No duty of confidentiality or other restriction on disclosure (however imposed) prevents the voluntary disclosure by a relevant client or a relevant intermediary to HMRC of information or documents about—
(za) a person subject to a stop notice,
(zb) arrangements or proposals for arrangements of a description specified in a stop notice in relation to which a person subject to a stop notice is a promoter,
(a) a monitored promoter, or
(b) relevant proposals or relevant arrangements in relation to which a monitored promoter is a promoter.
(2) “Relevant client” , in relation to a person mentioned in paragraph (za), (zb), (a) or (b) of subsection (1), means a person in relation to whom the person so mentioned—
(a) has made a firm approach in relation to an applicable proposal with a view to making the proposal available for implementation by that person or another person;
(b) has made an applicable proposal available for implementation by that person;
(c) took part in the organisation or management of applicable arrangements entered into by that person.
(3) “Relevant intermediary” means a person who is an intermediary in relation to an applicable proposal in relation to which the person mentioned in paragraphs (za), (zb), (a) or (b) of subsection (1) is a promoter.
(4) The applicable proposal or applicable arrangements mentioned in subsection (2) or (3) need not be the applicable proposals or applicable arrangements to which the disclosure relates.
(5) Nothing in this section authorises a disclosure of information that would contravene the data protection legislation (but in determining whether a disclosure would do so, take into account this section).
(6) For the purposes of this section, a person mentioned in subsection (1)(za) or (zb) is a promotor of arrangements or a proposal for arrangements if the person would be a promoter of those arrangements or proposal if those arrangements or that proposal were relevant arrangements or a relevant proposal (see section 235(2) to (6) and any regulations made under section 235(6)).
(7) In this section—
“applicable arrangements” means—
in relation to a disclosure falling within subsection (1)(za) or (zb), arrangements falling within the description specified in the stop notice to which the disclosure relates, or
in relation to a disclosure falling within subsection (1)(a) or (b), relevant arrangements;
“applicable proposal” means—
in relation to a disclosure falling within subsection (1)(za) or (zb), a proposal for arrangements falling within the description specified in the stop notice to which the disclosure relates, or
in relation to a disclosure falling within subsection (1)(a) or (b), a relevant proposal;
“the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3(9) of that Act).
275 Failure to comply with Part 7 of the Finance Act 2004
In section 98C of TMA 1970 (notification under Part 7 of FA 2004), after subsection (2E) insert—
(2EA) Where a person fails to comply with—
(a) section 309 of that Act and the promoter for the purposes of that section is a monitored promoter for the purposes of Part 5 of the Finance Act 2014, or
(b) section 310 of that Act and the arrangements for the purposes of that section are arrangements of such a monitored promoter,
then for the purposes of section 118(2) of this Act legal advice which the person took into account is to be disregarded in determining whether the person had a reasonable excuse, if the advice was given or procured by that monitored promoter.
(2EB) In determining for the purpose of section 118(2) of this Act whether or not a person who is a monitored promoter within the meaning of Part 5 of the Finance Act 2014 had a reasonable excuse for a failure to do anything required to be done under a provision mentioned in subsection (2), reliance on legal advice is to be taken automatically not to constitute a reasonable excuse if either—
(a) the advice was not based on a full and accurate description of the facts, or
(b) the conclusions in the advice that the person relied on were unreasonable.
(1) In section 36 of TMA 1970 (loss of tax brought about carelessly or deliberately), in subsection (1A)—
(a) omit the “or” following paragraph (b), and
(b) at the end of paragraph (c) insert
or
(d) attributable to arrangements which were expected to give rise to a tax advantage in respect of which the person was under an obligation to notify the Commissioners for Her Majesty's Revenue and Customs under section 253 of the Finance Act 2014 (duty to notify Commissioners of promoter reference number) but failed to do so,
.
(2) In paragraph 12B of Schedule 2 to OTA 1975 (extended time limits for assessment of petroleum revenue tax)—
(a) in sub-paragraph (1), after “sub-paragraph (2)” insert “ and (2A) ”,
(b) after sub-paragraph (2) insert—
(2A) In a case involving a relevant situation brought about by arrangements which were expected to give rise to a tax advantage in respect of which a participator (or a person acting on behalf of a participator) was under an obligation to notify the Board under section 253 of the Finance Act 2014 (duty to notify Commissioners of promoter reference number) but failed to do so, an assessment (or an amendment of an assessment) on the participator may be made at any time not more than 20 years after the end of the relevant chargeable period.
,
(c) in sub-paragraph (5), for “or (2)” substitute “ , (2) or (2A) ”, and
(d) in sub-paragraph (6), for “or (2)” substitute “ , (2) or (2A) ”.
(3) In section 240 of IHTA 1984 (underpayments)—
(a) in subsection (3) for “and (5)” substitute “ to (5A) ”,
(b) in subsection (5), for “those dates” substitute “ the dates in subsection (2)(a) and (b) ”,
(c) after subsection (5) insert—
(5A) Proceedings in a case involving a loss of tax attributable to arrangements which were expected to give rise to a tax advantage in respect of which a person liable for the tax was under an obligation to make a report under section 253 of the Finance Act 2014 (duty to notify Commissioners of promoter reference number) but failed to do so, may be brought at any time not more than 20 years after the later of the dates in subsection (2)(a) and (b).
, and
(d) in subsection (8), for “, (5) and (6)” substitute “ to (6) ”.
(4) In paragraph 46 of Schedule 18 to FA 1998 (general time limits for assessments to corporation tax), in sub-paragraph (2A)—
(a) omit the “or” following paragraph (b), and
(b) at the end of paragraph (c) insert
or
(d) attributable to arrangements which were expected to give rise to a tax advantage in respect of which the company was under an obligation to notify the Commissioners for Her Majesty's Revenue and Customs under section 253 of the Finance Act 2014 (duty to notify Commissioners of promoter reference number) but failed to do so,
.
(5) In paragraph 31 of Schedule 10 to FA 2003 (time limit for assessment of stamp duty land tax), in sub-paragraph (2A)—
(a) omit the “or” following paragraph (b), and
(b) at the end of paragraph (c) insert
or
(d) attributable to arrangements which were expected to give rise to a tax advantage in respect of which the person was under an obligation to notify the Commissioners for Her Majesty's Revenue and Customs under section 253 of the Finance Act 2014 (duty to notify Commissioners of promoter reference number) but failed to do so,
.
(6) In paragraph 25 of Schedule 33 to FA 2013 (time limit for assessment: annual tax on enveloped dwellings), in sub-paragraph (4)—
(a) omit the “or” following paragraph (b), and
(b) at the end of paragraph (c) insert
, or
(d) attributable to arrangements which were expected to give rise to a tax advantage in respect of which the person was under an obligation to notify the Commissioners for Her Majesty's Revenue and Customs under section 253 of FA 2014 (duty to notify Commissioners of promoter reference number) but failed to do so.
(1) A person who, without reasonable excuse, fails to comply with a duty imposed under section 236B(1) is guilty of an offence.
(2) The recipient of a stop notice (“R”) is guilty of an offence if—
(a) R fails, without reasonable excuse, to comply with a duty imposed under section 236B(3)(a), (4)(a) or (5)(a) to give a copy of the notice to another person (“P”),
(b) P subsequently fails to comply with a duty imposed under section 236B(1) in relation to the notice, and
(c) at the time of P’s failure the stop notice continues to have effect in relation to R.
(3) For the purposes of this section—
(a) an insufficiency of funds is not a reasonable excuse unless attributable to events outside the person's control,
(b) if 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,
(c) if the person had a reasonable excuse for the failure but the excuse has ceased, the person is to be treated as having continued to have the excuse if the failure is remedied without unreasonable delay after the excuse ceased, and
(d) reliance on legal advice is to be taken automatically not to constitute a reasonable excuse where the person is a monitored promoter if either—
(i) the advice was not based on a full and accurate description of the facts, or
(ii) the conclusions in the advice that the person relied on were unreasonable.
277B Liability for offences under section 277A committed by a body
(1) If an offence under section 277A is committed by a body corporate or a partnership and—
(a) is committed with the consent or connivance of a relevant person in relation to the body or partnership, or
(b) is attributable to neglect on the part of such a person,
the person (as well as the body or partnership) commits the offence and is liable to be proceeded against and punished accordingly.
(2) A “relevant person” is—
(a) in relation to a body corporate other than one whose affairs are managed by its members—
(i) a director, manager, secretary or other similar officer of the body, or a person purporting to act in such a capacity, or
(ii) a shadow director within the meaning of section 251 of the Companies Act 2006;
(b) in relation to a limited liability partnership or other body corporate whose affairs are managed by its members—
(i) a member who exercises functions of management with respect to it, or a person purporting to act in such a capacity, or
(ii) in the case of a limited liability partnership, a shadow member within the meaning of regulation 2 of the Limited Liability Partnerships Regulations 2001 (S.I. 2001/1090);
(c) in relation to a partnership, a partner or a person purporting to act in such a capacity.
(1) A person is guilty of an offence if—
(a) the person is required to produce a document by a notice given under section 255,
(b) the tribunal approved the giving of the notice under section 256, and
(c) the person conceals, destroys or otherwise disposes of, or arranges for the concealment, destruction or disposal of, that document.
(2) Subsection (1) does not apply if the person acts after the document has been produced to an officer of Revenue and Customs in accordance with section 255, unless the officer has notified the person in writing that the document must continue to be available for inspection (and has not withdrawn the notification).
(3) Subsection (1) does not apply, in a case to which section 268(1) applies, if the person acts after the end of the expiry of 6 months beginning with the day on which a copy of the document was produced in accordance with that section unless, before the expiry of that period, an officer of Revenue and Customs makes a request for the original document under section 268(2)(b).
279 Offence of concealing etc documents following informal notification
(1) A person is guilty of an offence if the person conceals, destroys or otherwise disposes of, or arranges for the concealment, destruction or disposal of, a document after an officer of Revenue and Customs has informed the person in writing that—
(a) the document is, or is likely, to be the subject of a notice under section 255, and
(b) the officer of Revenue and Customs intends to seek the approval of the tribunal to the giving of the notice.
(2) A person is not guilty of an offence under this section if the person acts after—
(a) at least 6 months has expired since the person was, or was last, informed as described in subsection (1), or
(b) a notice has been given to the person under section 255, requiring the document to be produced.
(1) A person who is guilty of an offence under section 277A, 278 or 279 is liable—
(a) on summary conviction, to—
(i) in England and Wales, a fine, or
(ii) in Scotland or Northern Ireland, a fine not exceeding the statutory maximum, or
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or both.
(2) In relation to an offence committed before section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force, subsection (1)(a)(i) has effect as if the reference to “a fine” were a reference to “a fine not exceeding the statutory maximum”.
(1) In the provisions mentioned in subsection (2)—
(a) “tax” includes value added tax and other indirect taxes, and
(b) “tax advantage” has the meaning given by section 234(3) and also includes a tax advantage as defined for VAT in paragraph 6, and for other indirect taxes in paragraph 7, of Schedule 17 to FA 2017 (disclosure of tax avoidance schemes: VAT and other indirect taxes).
(2) Those provisions are—
(a) section 237D;
(b) section 241B;
(c) Schedule 34A.
(3) Other references in this Part to “tax” are to be read as including value added tax or other indirect taxes so far as that is necessary for the purposes of sections 237A to 237D, 241A and 241B and Schedule 34A; but “tax” does not include value added tax or other indirect taxes in section 237A(10) or 237B(3).
(4) In this section “indirect tax” has the same meaning as in Schedule 17 to FA 2017.
(1) Regulations under this Part are to be made by statutory instrument.
(2) Apart from an instrument to which subsection (3) applies, a statutory instrument containing regulations made under this Part is subject to annulment in pursuance of a resolution of the House of Commons.
(3) A statutory instrument containing (whether alone or with other provision) regulations made under—
(a) section 238(7),
(b) paragraph 14 of Schedule 34,
(ba) paragraph 31 of Schedule 34A,
(c) paragraph 5(1) of Schedule 35, or
(d) paragraph 21 of Schedule 36,
may not be made unless a draft of the instrument has been laid before and approved by a resolution of the House of Commons.
(4) Regulations under this Part—
(a) may make different provision for different purposes;
(b) may include transitional provision and savings.
(1) In this Part—
“arrangements” has the meaning given by section 234(4);
“the Commissioners” means the Commissioners for Her Majesty's Revenue and Customs;
“calendar quarter” means a period of 3 months beginning with 1 January, 1 April, 1 July or 1 October;
“conduct notice” means a notice of the description in section 238 that is given under—
section 237(7) or (7A),
section 237A(8),
section 237B(1),
section 245(7), or
paragraph 8(2) or (3) or 10(3)(a) or (4)(a) of Schedule 36;
“contract settlement” means an agreement in connection with a person's liability to make a payment to the Commissioners under or by virtue of an enactment;
“defeat” , in relation to arrangements, has the meaning given by paragraph 10 of Schedule 34A;
“defeat notice” has the meaning given by section 241A(7);
“double defeat notice” has the meaning given by section 241A(7);
“final” , in relation to a judicial ruling, is to be interpreted in accordance with section 237D(6);
“HMRC” means Her Majesty's Revenue and Customs;
“firm approach” has the meaning given by section 235(4);
“judicial ruling” means a ruling of a court or tribunal on one or more issues;
“look-forward period”, in relation to a defeat notice, has the meaning given by section 241A(10);
“monitored promoter” has the meaning given by section 244(5);
“monitored proposal” and “monitored arrangements” have the meaning given by section 254;
“monitoring notice” means a notice given under section 244(1) or paragraph 9(2) or (3) or 10(3)(b) or (4)(b) of Schedule 36;
“the original monitoring notice” has the meaning given by paragraph 11(2) of Schedule 36;
“prescribed” means prescribed, or of a description prescribed, in regulations made by the Commissioners;
“promoter reference number” has the meaning given by section 250(5);
“promotion structure” is to be construed in accordance with section 235(1A) and Schedule 33A;
“provisional” , in relation to a conduct notice given under section 237A(8), is to be interpreted in accordance with section 237C;
“related” , in relation to arrangements, is to be interpreted in accordance with paragraph 2 of Schedule 34A;
“relevant arrangements” has the meaning given by section 234(2);
“relevant defeat” , in relation to a person, is to be interpreted in accordance with Schedule 34A;
“relevant proposal” has the meaning given by section 234(1);
“relies on a Case 3 relevant defeat” is to be interpreted in accordance section 237B(5);
“replacement conduct notice” has the meaning given by paragraph 11(1) of Schedule 36;
“replacement monitoring notice” has the meaning given by paragraph 11(1) of Schedule 36;
“single defeat notice” has the meaning given by section 241A(7).
“stop notice” means a notice given under section 236A(1);
“subject to a stop notice” , in relation to a person, is to be construed in accordance with section 236B(2);
“tax” (except in provisions to which section 281A applies) means—
income tax,
capital gains tax,
corporation tax,
petroleum revenue tax,
apprenticeship levy,
inheritance tax,
stamp duty land tax,
stamp duty reserve tax, or
annual tax on enveloped dwellings;
“tax advantage” has the meaning given by section 234(3) (but see also section 281A);
“Taxes Acts” has the same meaning as in TMA 1970 (see section 118(1) of that Act);
“the tribunal” means the First-tier Tribunal or, where determined by or under Tribunal Procedure Rules, the Upper Tribunal.
(2) A reference in a provision of this Part to an authorised officer is 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 purposes of that provision.
(3) A reference in a provision of this Part to meeting a threshold condition is to meeting one of the conditions described in paragraphs 2 to 12 of Schedule 34.
(4) Any reference in this Part to a person's activities as a promoter includes—
(a) if the person falls within the case described in paragraph 2 of Schedule 33A, the activities carried out by the person and other persons by virtue of which the person falls within the case,
(b) if the person falls within the case described in paragraph 3 of that Schedule, activities carried out under the instruction or guidance of a person who carries on business as a promoter,
(c) if the person falls within the case described in paragraph 4 of that Schedule, the activities of the body corporate or partnership that the person controls, and
(d) if the person falls within the case described in paragraph 5 by virtue of sub-paragraph (1)(b) of that paragraph, the activities of the body corporate or partnership that the person controls.
284 Disclosure of tax avoidance schemes: information powers
(1) Part 7 of FA 2004 (disclosure of tax avoidance schemes) is amended as set out in subsections (2) to (4).
(2) After section 310 insert—
Duty to provide further information requested by HMRC
310A (1) This section applies where—
(a) a person has provided the prescribed information about notifiable proposals or arrangements in compliance with section 308, 309 or 310, or
(b) a person has provided information in purported compliance with section 309 or 310 but HMRC believe that the person has not provided all the prescribed information.
(2) HMRC may require the person to provide—
(a) further specified information about the notifiable proposals or arrangements (in addition to the prescribed information under section 308, 309 or 310);
(b) documents relating to the notifiable proposals or arrangements.
(3) Where HMRC impose a requirement on a person under this section, the person must comply with the requirement within—
(a) the period of 10 working days beginning with the day on which HMRC imposed the requirement, or
(b) such longer period as HMRC may direct.
Failure to provide information under section 310A: application to the Tribunal
310B (1) This section applies where HMRC—
(a) have required a person to provide information or documents under section 310A, but
(b) believe that the person has failed to provide the information or documents required.
(2) HMRC may apply to the tribunal for an order requiring the person to provide the information or documents required.
(3) The tribunal may make an order under subsection (2) only if satisfied that HMRC have reasonable grounds for suspecting that the information or documents will assist HMRC in considering the notifiable proposals or arrangements.
(4) Where the tribunal makes an order under subsection (2), the person must comply with it within—
(a) the period of 10 working days beginning with the day on which the tribunal made the order, or
(b) such longer period as HMRC may direct.
(3) In section 316(2) (meaning of the “information provisions”), after “310,” insert “ 310A, ”.
(4) In section 318(1) (interpretation of Part 7), at the end insert—
“working day” means a day which is not a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom.
(5) Section 98C of TMA 1970 (notification under Part 7 of FA 2004) is amended as set out in subsections (6) to (10).
(6) In subsection (1)(a)(i), for “or (c)” substitute “ , (c) or (ca) ”.
(7) In subsection (2), after paragraph (c) insert—
(ca) section 310A (duty to provide further information requested by HMRC),
.
(8) In subsection (2ZA), at the end of the table add—
A failure to comply with section 310A | The first day after the end of the period within which the person must comply with section 310A.
(9) In subsection (2ZB)—
(a) in paragraph (a)—
(i) for “person's” substitute “promoter's”;
(ii) after “(3)” insert “ or section 310A ”;
(iii) for “person” substitute “ promoter ”;
(b) in paragraph (b)—
(i) before “person's” insert “ relevant ”;
(ii) for “or 310” substitute “ , 310 or 310A ”;
(iii) before “person” insert “ relevant ”.
(10) After subsection (2ZB) insert—
(2ZBA) In subsection (2ZB)—
(a) “promoter” has the same meaning as in Part 7 of the Finance Act 2004, and
(b) “relevant person” means a person who enters into any transaction forming part of notifiable arrangements within the meaning of that Part.
(11) Section 310A of FA 2004 applies to a person who provides the prescribed information about notifiable proposals or arrangements in compliance or purported compliance with section 308, 309 or 310 on or after the day on which this Act is passed.
285 The Code of Practice on Taxation for Banks: HMRC to publish reports
(1) No later than the end of the calendar year in which a reporting period ends, the Commissioners for Her Majesty's Revenue and Customs must publish a report on the operation during the period of the Code of Practice on Taxation for Banks as published by the Commissioners on 31 May 2013 (“the Code”).
(2) If the Commissioners determine that a group or entity which was a participating group or entity (see section 286) during some or all of a reporting period breached the Code at a time during the period, the Commissioners may name the group or entity in a report under this section.
This subsection is subject to section 287.
(3) If—
(a) the Commissioners determine that there has been a breach of the Code, but
(b) it was not reasonably practicable for information relating to the breach to be included in the report for the reporting period in which the breach occurred,
the information may be included in the first subsequent report in which it is reasonably practicable for the information to be included.
(4) The report for a reporting period must list—
(a) the groups or entities which were participating groups or entities during some or all of the reporting period,
(b) the groups or entities appearing to the Commissioners—
(i) not to be covered by paragraph (a), and
(ii) to be groups or entities in relation to which the bank levy is charged in a case where the chargeable period ends in the reporting period (or would be charged in such a case if it is assumed that any period of account beginning before or in, but ending after, the reporting period ends at the end of the reporting period instead), and
(c) the entities appearing to the Commissioners—
(i) not to be covered by paragraph (a) or (b), and
(ii) to be entities which fell within subsection (2)(b) or (c) of section 991 of ITA 2007 (subject to subsection (3) of that section) during some or all of the reporting period.
(5) In a case where the bank levy is (or would be) charged in relation to a relevant non-banking group (as defined in paragraph 11 of Schedule 19 to FA 2011), any list prepared under subsection (4)(b) is to refer to the group only so far as it consists (or would consist) of—
(a) relevant UK banking sub-groups (as defined in paragraph 19(5) of that Schedule), and
(b) so far as not covered by paragraph (a)—
(i) UK resident banks (as defined in paragraph 80 of that Schedule), and
(ii) relevant foreign banks (as defined in paragraph 78 of that Schedule).
(6) For the purposes of subsection (4)(b)(ii) it does not matter if the amount of the bank levy is (or would be) nil in the case of a group or entity.
(7) The first “reporting period” is the period beginning with 5 December 2013 and ending with 31 March 2015.
(8) After that, each year beginning with 1 April is a “reporting period”.
(9) The report for the first reporting period must list the groups or entities which were participating groups or entities on 5 December 2013.
(10) Subsection (9) does not require the inclusion in the report of any information which has previously been published by the Commissioners, so long as the report makes reference to the previous publication.
(11) If, on or after 31 May 2013, the Commissioners publish a document which states that only Part 1 of the Code is to apply in the case of a group or entity of a specified description, in the case of such a group or entity references to the Code are to be read as references to Part 1 of the Code.
286 The Code of Practice on Taxation for Banks: “participating” groups or entities
(1) This section applies for the purposes of section 285.
(2) A group or entity becomes a “ participating ” group or entity if, on or after 31 May 2013, it notifies the Commissioners in writing that it is unconditionally committed to complying with the Code.
(3) A group or entity ceases to be a “participating” group or entity if it notifies the Commissioners in writing that it is no longer unconditionally committed to complying with the Code.
(4) A group or entity which ceases to be a “participating” group or entity in accordance with subsection (3) becomes a “ participating ” group or entity again if it gives a further written notice of the kind mentioned in subsection (2) (subject to what follows).
(5) Subsections (6) and (7) apply if a group or entity is named in a report under section 285 under subsection (2) of that section.
(6) If the group or entity is a “participating” group or entity immediately before the publication of the report, it ceases to be so on the publication of the report.
(7) In any case, the group or entity cannot be a “participating” group or entity after the publication of the report unless and until—
(a) it gives the Commissioners a further written notice of the kind mentioned in subsection (2), and
(b) the Commissioners are satisfied that it is unconditionally committed to complying with the Code.
287 The Code of Practice on Taxation for Banks: operation & breaches of the Code
(1) The Commissioners must—
(a) publish a protocol, to be called “the Governance Protocol”, setting out how the Commissioners are going to operate the Code and section 285(2), and
(b) follow the Governance Protocol when operating the Code and section 285(2).
(2) The Governance Protocol must require the Commissioners, before determining for the purposes of section 285(2) whether a group or entity has breached the Code at a time during a reporting period, to commission a person (an “independent reviewer”) who is independent of the Commissioners and the group or entity to report on—
(a) whether the group or entity has breached the Code, and
(b) whether the group or entity should be named in a report under section 285 were the Commissioners to determine that the group or entity has breached the Code.
(3) The independent reviewer—
(a) must give the group or entity a reasonable opportunity to make representations about the matters being considered by the independent reviewer,
(b) subject to subsection (8), must have regard to the group or entity's representations and may have regard to any other matter which the independent reviewer considers to be relevant,
(c) must give the group or entity a copy of the independent reviewer's report, and
(d) must otherwise follow the Governance Protocol but only so far as it is relevant to the independent reviewer's functions.
(4) The Governance Protocol may provide that, in the case of any conduct of a group or entity to which subsection (5) or (5A) applies, the independent reviewer is to assume that the conduct constitutes a breach of the Code and, accordingly, is to report only on the matter mentioned in subsection (2)(b).
(5) This subsection applies to any conduct—
(a) in relation to which there has been given—
(i) an opinion notice under paragraph 11(3)(b) of Schedule 43 to FA 2013 (GAAR advisory panel: opinion that conduct unreasonable) stating the joint opinion of all the members of a sub-panel arranged under paragraph 10 of that Schedule, or
(ii) one or more such notices stating the opinions of at least two members of such a sub-panel, and
(b) in relation to which there has been given a notice under paragraph 12 of that Schedule or paragraph 8 or 9 of Schedule 43A to that Act (HMRC final decision on tax advantage) stating that a tax advantage is to be counteracted.
(5A) This subsection applies to any conduct—
(a) in relation to which there has been given—
(i) an opinion notice under paragraph 6(4)(b) of Schedule 43B to FA 2013 (GAAR advisory panel: opinion that such conduct unreasonable) stating the joint opinion of all the members of a sub-panel arranged under that paragraph, or
(ii) one or more such notices stating the opinions of at least two members of such a sub-panel, and
(b) in relation to which there has been given a notice under paragraph 8 of that Schedule (HMRC final decision on tax advantage) stating that a tax advantage is to be counteracted.
(5B) For the purposes of subsection (5), any opinions of members of the GAAR advisory panel which must be considered before a notice is given under paragraph 8 or 9 of Schedule 43A to FA 2013 (opinions about the lead arrangements) are taken to relate to the conduct to which the notice relates.
(6) The Governance Protocol must make provision—
(a) for the Commissioners, in determining whether a group or entity has breached the Code or should be named in a report under section 285—
(i) to have regard to the independent reviewer's report, and
(ii) to give the group or entity a reasonable opportunity to make representations about the matters being considered by the Commissioners,
(b) for the Commissioners to notify the group or entity in writing of their determination,
(c) if the Commissioners' determination is different from the independent reviewer's determination, for the Commissioners to include in the notification of their determination to the group or entity their reasons for making a different determination, and
(d) if the Commissioners determine that the group or entity should be named in a report under section 285, for the Commissioners to hold off including in a report under that section any information relating to the breach of the Code—
(i) until the notification of the determination is given to the group or entity, and
(ii) for at least 90 days after the day on which that notification is given.
(7) The Governance Protocol must make provision for the independent reviewer and the Commissioners, in determining whether a group or entity should be named in a report under section 285, to have regard to—
(a) any action taken by the group or entity to remedy the breach of the Code or otherwise to mitigate its effect, and
(b) any exceptional circumstances which might justify not naming the group or entity.
(8) In determining whether a group or entity has breached the Code or should be named in a report under section 285, the independent reviewer and the Commissioners—
(a) may have regard to any conduct of the group or entity occurring on or after 5 December 2013, but
(b) must not have regard to any conduct of the group or entity occurring before that date or at a time when the group or entity is not a participating group or entity.
(9) Subsection (10) applies if the independent reviewer determines—
(a) that a group or entity has not breached the Code, or
(b) that a group or entity should not be named in a report under section 285.
(10) The Commissioners may make a determination which is different from the independent reviewer's determination only if—
(a) the independent reviewer's determination is flawed when considered in the light of the principles applicable in proceedings for judicial review, or
(b) there are other compelling reasons for making a different determination.
(11) If the Commissioners make a different determination in a case where subsection (10) applies—
(a) their reasons notified under subsection (6)(c) must set out (in particular) why the independent reviewer's determination is flawed or (as the case may be) the other compelling reasons,
(b) in any proceedings in which an issue arises as to whether it was lawful for them to make the different determination it is for them to show that it was lawful for them to make the different determination, and
(c) subsection (12) applies in relation to any proceedings for judicial review of the different determination instituted by a member of the group or by the entity.
(12) If the proceedings are instituted no later than the end of the 90 day period mentioned in subsection (6)(d)(ii)—
(a) they are to be treated as having been instituted within any applicable time limit (if that would not otherwise be the case),
(b) the court must give permission or leave for the proceedings to proceed (if the court's permission or leave is required), unless that would lead to multiple proceedings dealing with the same issues, and
(c) any hearing (including any hearing on appeal) must be held in private, unless (having regard to the risk that holding the hearing in public might undermine to any extent the purpose of the instituting of the proceedings) the court is satisfied that there are exceptional circumstances requiring the hearing to be held in public.
(13) If a determination of the Commissioners is different from the independent reviewer's determination, they must mention that fact—
(a) in the report under section 285 for the reporting period in question, or
(b) if it was not reasonably practicable for that fact to be mentioned in that report, in the first subsequent report under section 285 in which it is reasonably practicable for that fact to be mentioned.
(14) In determining for the purposes of section 285(3) or subsection (13)(b) of this section when it is reasonably practicable for any information to be included in a report under section 285, regard must be had (in particular) to the requirements of subsections (1) to (12) of this section.
(15) The Commissioners must disclose to an independent reviewer such information held by them as they consider appropriate to enable the independent reviewer to carry out the independent reviewer's functions.
(16) If the Commissioners disclose information to an independent reviewer under subsection (15), section 18 of CRCA 2005 (confidentiality) applies in relation to the independent reviewer's holding and use of the information as if the independent reviewer were an officer of Revenue and Customs and the independent reviewer's functions were functions of the independent reviewer as such an officer.
288 The Code of Practice on Taxation for Banks: documents relating to the Code
(1) The Commissioners may publish a relevant document, or revoke or modify a relevant document previously published by them, only after—
(a) consultation with such persons as they consider appropriate, and
(b) consideration of any representations made to them in the course of the consultation.
(2) When publishing a relevant document or a modified relevant document or when revoking a relevant document, the Commissioners must also publish—
(a) an account of the representations mentioned in subsection (1)(b), and
(b) their responses to those representations.
(3) In this section “relevant document” means—
(a) the Governance Protocol, or
(b) any document of the kind mentioned in section 285(11).
(4) This section does not apply in relation to the first publication of the Governance Protocol.
(5) This section does not affect any document of the kind mentioned in section 285(11) published before the passing of this Act except where it is to be revoked or modified after the passing of this Act.