Finance Act 2015

94 Representations

(1) This section applies where a designated HMRC officer gives a preliminary notice, in respect of an accounting period, to a company under section 93 (and that notice is not withdrawn).

(2) The company has 30 days beginning with the day the notice is issued to send written representations to the officer in respect of the notice.

(3) Representations made in accordance with subsection (2) are to be considered by the officer only if they are made on the following grounds—

(a) that there is an arithmetical error in the calculation of the amount of the diverted profits tax or the taxable diverted profits or an error in a figure on which an assumption in the notice is based;

(b) that the small or medium-sized enterprise requirement is not met;

(c) that in a case where the preliminary notice states that section 80 or 81 applies—

(i) the participation condition is not met,

(ii) the 80% payment test is met, or

(iii) the effective tax mismatch outcome is an excepted loan relationship outcome;

(d) that in a case where the preliminary notice states that section 86 applies—

(i) section 87 (exception for companies with limited UK-related sales or expenses) operates to prevent section 86 from applying for the accounting period, or

(ii) the avoided PE is “excepted” within the meaning of section 86(5);

(e) that in a case where the preliminary notice states that section 86 applies and that the mismatch condition (within the meaning of section 86(2)) is met, the condition is not met because—

(i) the participation condition is not met,

(ii) the 80% payment test is met, or

(iii) the effective tax mismatch outcome is an excepted loan relationship outcome (within the meaning of section 109(2)).

(4) But, unless they are representations under subsection (3)(a) in respect of arithmetical errors, nothing in subsection (3) requires the officer to consider any representations if, and to the extent that, they relate to—

(a) any provision of Part 4 of TIOPA 2010 (transfer pricing), or

(b) the attribution of profits of a company to a permanent establishment in the United Kingdom through which the company carries on a trade (including any notional attribution made for the purposes of section 89, 90 or 91).

(5) “The small or medium-sized enterprise requirement” is—

(a) where the notice was issued on the basis that section 80 or 81 applies, the requirement in section 80(1)(g), and

(b) where the notice was issued on the basis that section 86 applies to the company, the requirement in subsection (1)(h) or (2)(f) of that section.

(6) “The participation condition” means—

(a) where the notice was issued on the basis that section 80 or 81 applies, the condition in section 80(1)(c), and

(b) where the notice was issued on the basis that section 86 applies to the company, the condition in subsection (2)(b) of that section.

(7) “The 80% payment test” means the requirement in section 107(3)(d).