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The Pensions Schemes (Application of UK Provisions to Relevant Non-UK Schemes) Regulations 2006

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PART 3U.K.

Modifications to Part 4 of the Finance Act 2004 in respect of relevant non-UK schemesU.K.

5.  Part 4 of the Finance Act 2004 shall be modified in respect of relevant non-UK schemes, within the meaning of paragraph 1(5) of Schedule 34, in accordance with the following provisions of [F1this Part ].

Textual Amendments

F1Words in reg. 5 substituted (with effect in accordance with Sch. 1 para. 96(16)(a) of the amending Act) by Taxation of Pensions Act 2014 (c. 30), Sch. 1 para. 96(2) (with Sch. 1 para. 96(16)(b))

Commencement Information

I1Reg. 5 in force at 6.4.2006, see reg. 1(1)

[F2Modification of section 165U.K.

6.  In section 165 (pension rules)—

(a)in subsection (1), in pension rule 4 omit from “but a scheme pension” to the end, F3...

F3(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

[F4Modification of section 167U.K.

7.  In section 167 (pension death benefit rules)—

(a)in subsection (1), in pension death benefit rule 3 omit from “but a dependants’ scheme pension” to the end, F5...]

F5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Modification of section 227U.K.

F68.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F6Reg. 8 omitted (with effect in accordance with reg. 1(2) of the amending S.I.) by virtue of The Registered Pension Schemes (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/1751), regs. 1(1), 12(2)

Modification of section 231U.K.

9.  In section 231—

[F7(a) in subsection (3) for “the consumer prices index” substitute “the relevant index”; and]

(b)at the end add—

[F8“(4)  In this section “the relevant index” means—

(a)if there is an index of the movement of consumer prices maintained, or officially recognised, by the government of the country or territory in which the recognised overseas scheme is established, that index, or

(b)if there is no such index, the consumer prices index.”].

Textual Amendments

F7Words in reg. 9 substituted (with effect in accordance with reg. 1(7) of the amending S.I.) by The Registered Pension Schemes (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/1751), regs. 1(1), 12(3)(a)

F8Words in reg. 9 substituted (with effect in accordance with reg. 1(7) of the amending S.I.) by The Registered Pension Schemes (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/1751), regs. 1(1), 12(3)(b)

Commencement Information

I2Reg. 9 in force at 6.4.2006, see reg. 1(1)

Modification of section 235U.K.

10.  In section 235—

[F9(a) in subsection (3) for “the consumer prices index” substitute “the relevant index”; and]

(b)at the end of the section add—

[F10“(4)  In this section “the relevant index” means—

(a)if there is an index of the movement of consumer prices maintained, or officially recognised, by the government of the country or territory in which the recognised overseas scheme is established, that index, or

(b)if there is no such index, the consumer prices index.”].

Textual Amendments

F9Words in reg. 10 substituted (with effect in accordance with reg. 1(7) of the amending S.I.) by The Registered Pension Schemes (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/1751), regs. 1(1), 12(4)(a)

F10Words in reg. 10 substituted (with effect in accordance with reg. 1(7) of the amending S.I.) by The Registered Pension Schemes (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/1751), regs. 1(1), 12(4)(b)

Commencement Information

I3Reg. 10 in force at 6.4.2006, see reg. 1(1)

Modification of section 275U.K.

11.—(1) In the heading of section 275 at the end add “and Non-EEA annuity provider”.

(2) At the end of the section add—

“(3) In this Part “non-EEA annuity provider” means a person resident in a country or territory outside the European Economic Area—

(a)whose normal business includes the provision of annuities; and

(b)who is regulated in the conduct of that business—

(i)by the government of that country or territory; or

(ii)a body established under the law of that country or territory for the purpose of regulating such business.”.

Commencement Information

I4Reg. 11 in force at 6.4.2006, see reg. 1(1)

Modification of section 276U.K.

12.  In section 276(2) for “scheme administrator” substitute “scheme manager”.

Commencement Information

I5Reg. 12 in force at 6.4.2006, see reg. 1(1)

Modification of section 279U.K.

13.—(1) Section 279(1) shall be modified as follows.

(2) At the appropriate points in the alphabetical list insert—

““applicable pension scheme”, in relation to a pension sharing order in respect of a member’s spouse[F11, ex-spouse, civil partner or former civil partner], means a scheme which is—

(a)

a recognised overseas pension scheme within the meaning of this Part; or

(b)

a scheme which is recognised for tax purposes under the law of either the country or territory in which it is situate or that of the country or territory in which the pension sharing order is made;”;(1) and

““ex-spouse”, in relation to a member, means the other party to a marriage with the member that has been dissolved or annulled;

[F12“former civil partner” in relation to a member means the other party to a civil partnership with the member that has been dissolved or annulled.”];

(3) For the definitions of “pension credit” and “pension debit” substitute—

  • ““pension credit” and “pension debit” mean respectively the amount by which—

    (a)

    the entitlement of a member’s spouse[F13, ex-spouse, civil partner or former civil partner] under an applicable pension scheme, is increased; and

    (b)

    the entitlement of a member under a qualifying recognised overseas pension scheme is decreased,

    pursuant to a pension sharing order;.”.

(4) For the definition of “pension sharing order or provision” substitute—

““pension sharing order” means an order of a court, by virtue of which amounts are transferred from a recognised overseas pension scheme of a member to an applicable pension scheme of that member’s spouse[F14, ex-spouse, civil partner or former civil partner], in or in connection with proceedings relating to the dissolution or annulment of the marriage [F15or civil partnership] of the parties;”.

Textual Amendments

Commencement Information

I6Reg. 13 in force at 6.4.2006, see reg. 1(1)

Modification of Schedule 28U.K.

14.—(1) Schedule 28 is modified as follows.

(2) In paragraph 1—

(a)in sub-paragraph (a) after “registered medical practitioner” insert “or a recognised medical practitioner”;

(b)at the end of the paragraph add—

“In this paragraph “recognised medical practitioner” means a medical practitioner practising outside the United Kingdom who is authorised, licensed or registered to practise medicine in the country or territory, outside the United Kingdom, in which either the scheme or the member is resident.”.

(3) In the following provisions for “scheme administrator” substitute “scheme manager”.

The provisions are—

(a)paragraph 1(a);

(b)paragraph 2 (in each place where the expression occurs);

[F16(ba)paragraphs 8C and 8D (in each place where the expression occurs);]

[F17(c)paragraph 10 (in each place where the expression occurs);]

[F18(ca)paragraph 10A (in each place where the expression occurs);

(cb)paragraph 10B (in each place where the expression occurs);]

(d)paragraph 13(3);

F19(da). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)paragraph 16(1) and (2);

[F20(ea)paragraphs 22C and 22D (in each place where the expression occurs);]

[F21(f)paragraph 24 (in each place where the expression occurs);]

[F22(fa)paragraph 24A (in each place where the expression occurs);

(fb)paragraph 24B (in each place where the expression occurs);]

F23(fc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)paragraph 27(3).

(4) Omit paragraphs 3(1)(b), 6(1)(c), 17(1)(b) and 20(1)(c).

(5) In paragraph 15(2)(b) and (3) omit “, in the opinion of the scheme administrator”.

(6) At the end of the Schedule add—

“PART 3U.K.Relevant Non UK Schemes- interpretation

Construction of references to insurance companies

28.—(1) In this Schedule, in its application to a scheme established in a country or territory outside the European Economic Area, any reference to an insurance company includes a non-EEA annuity provider.

(2) Section 275(3) defines “non-EEA annuity provider”.”.

Textual Amendments

Commencement Information

I7Reg. 14 in force at 6.4.2006, see reg. 1(1)

Modification of Schedule 29U.K.

15.—(1) Schedule 29 is modified as follows.

(2) In paragraph 1 after sub-paragraph (4) insert—

[F24“(4A)  In determining whether all or part of the member’s lifetime allowance is available—

(a)there shall be disregarded any amount treated as crystallising by virtue of a relevant BCE; but

(b)the amount of the allowance available shall be reduced by the amount determined in accordance with sub-paragraph (4B) or (4C), as the case may require.

(4B) Where benefit crystallisation event 8 has occurred, the member’s lifetime allowance that is available shall be reduced by the aggregate of—

(a)the referable portion of any previous pension commencement lump sum paid to or in respect of the member by a recognised overseas pension scheme;

[F25(aa)the referable portion of any previous uncrystallised funds pension lump sum paid to or in respect of the member by a recognised overseas pension scheme;] and

(b)the referable portion of the amount which would have crystallised by virtue of the member becoming entitled to a pension, had the scheme paying it been a registered pension scheme [F26and disregarding paragraph 2 of Schedule 32.]

(4C) Where the paragraph 15 BCE has occurred, the member’s lifetime allowance that is available shall be reduced by the aggregate of—

(a)the referable portion of any previous pension commencement lump sum to which the member became entitled under a relevant non-UK scheme since the paragraph 15 BCE occurred;

[F27(aa)the referable portion of any previous uncrystallised funds pension lump sum to which the member became entitled under a relevant non-UK scheme since the paragraph 15 BCE occurred;] and

(b)in respect of any pension to which the member has become entitled since the paragraph 15 BCE occurred, the referable portion of the amount which would have crystallised by virtue of the member’s becoming entitled to the pension, had the scheme paying it been a registered pension scheme [F28and disregarding paragraph 2 of Schedule 32.”].]

(3) In paragraph 2—

(a)in sub-paragraph (6) for the definition of AAC substitute—

[F29“AAC is the aggregate of—

(a) the amounts crystallised by each benefit crystallisation event (other than a relevant BCE) which has occurred in relation to the member before the member becomes entitled to the lump sum on each occasion on which entitlement to a pension arises[F30, as adjusted under sub-paragraph (7)]; and

(b)if a relevant BCE has occurred, RP.]

[F31RP is the referable portion of the amount which would have crystallised, had the scheme paying it been a registered pension scheme and disregarding paragraphs 2 and 15A of Schedule 32, in respect of any previous pension commencement lump sum [F32or previous uncrystallised funds pension lump sum] or pension to which the member became entitled since the relevant BCE occurred, as adjusted under sub-paragraph (7) (but excluding any amount included in paragraph (a)).]  ”;

[F33(aa)in sub-paragraph (7) for “the relevant amount” substitute “the amount which is, or would have, crystallised”;]

(b)[F34after sub-paragraph (7)] insert—

[F35“(7ZA)] The member’s becoming entitled to a pension commencement lump sum, [F36or to an uncrystallised funds pension lump sum,] or to a pension, as mentioned in [F37the definition of RP] in [F38sub-paragraph (6)] shall be treated as a benefit crystallisation event for the purposes of sub-paragraph (7).”.

[F39(c)after sub-paragraph (7A) insert—

“(7B) But sub-paragraph (7A)(b) does not apply to anything which, but for paragraph 2 or 15A of Schedule 32, would have constituted a relevant BCE.”]

[F40(3A) In paragraph 3, after sub-paragraph (7) insert—

“(7ZA) Where a relevant BCE has occurred in relation to the member, sub-paragraph (6) has effect as if for the definition of “AC” in sub-paragraph (7) there were substituted—

““AC” is —

(a)

in a case where the member becomes entitled to the pension before reaching the age of 75, the referable portion of the amount that, had the scheme been a registered pension scheme, would have crystallised by reason of the member becoming entitled to the pension, disregarding paragraph 3 of Schedule 32, and

(b)

in a case where the member becomes entitled to the pension after reaching that age, the referable portion of the amount that would have been so crystallised (disregarding that paragraph) but for paragraph 2 of that Schedule, had the scheme been a registered pension scheme. ””]

(4) In paragraph 4—

(a)in sub-paragraph (1)(a) after “registered medical practitioner” insert “or a recognised medical practitioner”;

(b)at the end of the paragraph add—

“(4) In sub-paragraph (1) “recognised medical practitioner” means a medical practitioner practising outside the United Kingdom who is authorised, licensed or registered to practise medicine in the country or territory, outside the United Kingdom, in which either the scheme or the member is resident.

[F41(5) In determining whether all or part of the member’s lifetime allowance is available—

(a)there shall be disregarded any amount treated as crystallising by virtue of a relevant BCE; but

(b)the amount of the allowance available shall be reduced by the amount determined in accordance with [F42sub-paragraph (6) or (7)], as the case may require.

(6) Where benefit crystallisation event 8 has occurred, the member’s lifetime allowance that is available shall be reduced by the aggregate of—

(a)the referable portion of any previous pension commencement lump sum paid to or in respect of the member by a recognised overseas pension scheme;

[F43(aa)the referable portion of any previous uncrystallised funds pension lump sum paid to or in respect of the member by a recognised overseas pension scheme;]and

(b)the referable portion of the amount which would have crystallised by virtue of the member becoming entitled to a pension, had the scheme paying it been a registered pension scheme.

(7) Where the paragraph 15 BCE has occurred, the member’s lifetime allowance that is available shall be reduced by the aggregate of—

(a)the referable portion of any earlier pension commencement lump sum to which the member became entitled under a relevant non-UK scheme since the paragraph 15 BCE occurred;

[F44(aa)the referable portion of any earlier uncrystallised funds pension lump sum to which the member became entitled under a relevant non-UK scheme since the paragraph 15 BCE occurred;] and

(b)in respect of any pension to which the member has become entitled since the paragraph 15 BCE occurred, the referable portion of the amount which would have crystallised by virtue of the member’s becoming entitled to the pension, had the scheme paying it been a registered pension scheme [F45and disregarding paragraph 2 of Schedule 32.”].]

[F46(4A) In paragraph 4A (uncrystallised funds pension lump sums) after sub-paragraph (2) insert—

“(2A) In determining for the purposes of sub-paragraph (1)(b) whether all or part of the member's lifetime allowance is available—

(a)disregard any amount treated as crystallising by virtue of a relevant BCE, and

(b)the amount of the allowance available is reduced by the amount determined in accordance with sub-paragraph (2B) or (2C), as the case may require.

(2B) Where benefit crystallisation event 8 has occurred, the member's lifetime allowance that is available is reduced by the aggregate of—

(a)the referable portion of any previous pension commencement lump sum paid to or in respect of the member by a recognised overseas pension scheme,

(b)the referable portion of any previous uncrystallised funds pension lump sum paid to or in respect of the member by a recognised overseas pension scheme, and

(c)the referable portion of the amount which would have crystallised by virtue of the member becoming entitled to a pension, had the scheme paying it been a registered pension scheme and disregarding paragraph 2 of Schedule 32.

(2C) Where the paragraph 15 BCE has occurred, the member's lifetime allowance that is available is reduced by the aggregate of—

(a)the referable portion of any earlier pension commencement lump sum to which the member became entitled under a relevant non-UK scheme since the paragraph 15 BCE occurred,

(b)the referable portion of any earlier uncrystallised funds pension lump sum to which the member became entitled under a relevant non-UK scheme since the paragraph 15 BCE occurred, and

(c)in respect of any pension to which the member has become entitled since the paragraph 15 BCE occurred, the referable portion of the amount which would have crystallised by virtue of the member's becoming entitled to the pension, had the scheme paying it been a registered pension scheme and disregarding paragraph 2 of Schedule 32.”]

(5) In paragraph 5(1)(c) after “benefit crystallisation event” insert—

  • [F47“, other than an event which constitutes a relevant BCE,”].

(6) At the end of paragraph 7 add—

[F48“(6)  In determining whether all or part of the member’s lifetime allowance is available—

(a)there shall be disregarded any amount treated as crystallising by virtue of a relevant BCE; but

(b)the amount of the allowance available shall be reduced by the amount determined in accordance with sub-paragraph (7) or (8), as the case may require [F49and disregarding paragraph 2 of Schedule 32.]

(7) Where benefit crystallisation event 8 has occurred, the member’s lifetime allowance that is available shall be reduced by the aggregate of—

(a)the referable portion of any previous pension commencement lump sum paid to or in respect of the member by a recognised overseas pension scheme; and

[F50(aa)the referable portion of any previous uncrystallised funds pension lump sum paid to or in respect of the member by a recognised overseas pension scheme;]

(b)the referable portion of the amount which would have crystallised by virtue of the member becoming entitled to a pension, had the scheme paying it been a registered pension scheme [F51and disregarding paragraph 2 of Schedule 32.]

(8) Where the paragraph 15 BCE has occurred, the member’s lifetime allowance that is available shall be reduced by the aggregate of—

(a)the referable portion of any earlier pension commencement lump sum to which the member became entitled under a relevant non-UK scheme since the paragraph 15 BCE occurred; and

[F52(aa)the referable portion of any earlier uncrystallised funds pension lump sum to which the member became entitled under a relevant non-UK scheme since the paragraph 15 BCE occurred;]

(b)in respect of any pension to which the member has become entitled since the paragraph 15 BCE occurred, the referable portion of the amount which would have crystallised by virtue of the member’s becoming entitled to the pension, had the scheme paying it been a registered pension scheme [F53and disregarding paragraph 2 of Schedule 32.”].]

(7) At the end of paragraph 10 add—

[F54“(4)  In determining whether all or part of the member’s lifetime allowance is available—

(a)there shall be disregarded any amount treated as crystallising by virtue of a relevant BCE; but

(b)the amount of the allowance available shall be reduced by the amount determined in accordance with sub-paragraph (5) or (6), as the case may require.

(5) Where benefit crystallisation event 8 has occurred, the member’s lifetime allowance that is available shall be reduced by the aggregate of—

(a)the referable portion of any previous pension commencement lump sum paid to or in respect of the member by a recognised overseas pension scheme;

[F55(aa)the referable portion of any previous uncrystallised funds pension lump sum paid to or in respect of the member by a recognised overseas pension scheme;] and

(b)the referable portion of the amount which would have crystallised by virtue of the member becoming entitled to a pension, had the scheme paying it been a registered pension scheme [F56and disregarding paragraph 2 of Schedule 32.]

(6) Where the paragraph 15 BCE has occurred, the member’s lifetime allowance that is available shall be reduced by the aggregate of—

(a)the referable portion of any earlier pension commencement lump sum to which the member became entitled under a relevant non-UK scheme since the paragraph 15 BCE occurred;

[F57(aa)the referable portion of any earlier uncrystallised funds pension lump sum to which the member became entitled under a relevant non-UK scheme since the paragraph 15 BCE occurred;] and

(b)in respect of any pension to which the member has become entitled since the paragraph 15 BCE occurred, the referable portion of the amount which would have crystallised by virtue of the member’s becoming entitled to the pension, had the scheme paying it been a registered pension scheme [F58and disregarding paragraph 2 of Schedule 32.”].]

(8) In paragraph 11 after sub-paragraph (b) insert—

[F59“(bb) it is not paid from the relevant transfer fund of a qualifying recognised overseas pension scheme,

(bc)it is not paid from the UK tax-relieved fund of a relevant non-UK scheme,”].

(9) In paragraph 4(1)(a), and paragraph 19(1)(d) and (2)(e) for “scheme administrator” substitute “scheme manager”.

[F60(9A) In paragraph 12 (interpretation of Part 1), after sub-paragraph (1A) insert—

“(1B) But sub-paragraph (1A)(b) does not apply to anything which, but for paragraph 2 of Schedule 32, would have constituted a relevant BCE.”]

[F61(10) After paragraph 12 add—

“Interpretation of Part 1 – Non-UK Schemes

12A.—(1) The referable portion of a lump sum, pension or an amount which is or would have been crystallised is—

(a)in a case where benefit crystallisation event 8 has occurred, the extent to which it is referable to the member’s relevant transfer fund; or

(b)in a case where the paragraph 15 BCE has occurred, the extent to which it is referable to the member’s UK tax-relieved fund.

(2) In this Part—

“the paragraph 15 BCE” means the benefit crystallisation event treated as occurring by virtue of paragraph 15 of Schedule 34;

“relevant BCE” means—

(a)

benefit crystallisation event 8; or

(b)

the paragraph 15 BCE;

“relevant transfer fund” shall be construed in accordance with paragraph 4(2) of Schedule 34;

“UK tax-relieved fund” shall be construed in accordance with paragraph 3(2) of Schedule 34.”].

Textual Amendments

F25Words in reg. 15(2) inserted (with effect in accordance with Sch. 1 para. 96(16)(a) of the amending Act) by Taxation of Pensions Act 2014 (c. 30), Sch. 1 para. 96(4) (with Sch. 1 para. 96(16)(b))

F27Words in reg. 15(2) inserted (with effect in accordance with Sch. 1 para. 96(16)(a) of the amending Act) by Taxation of Pensions Act 2014 (c. 30), Sch. 1 para. 96(5) (with Sch. 1 para. 96(16)(b))

F32Words in reg. 15(3)(a) inserted (with effect in accordance with Sch. 1 para. 96(16)(a) of the amending Act) by Taxation of Pensions Act 2014 (c. 30), Sch. 1 para. 96(6) (with Sch. 1 para. 96(16)(b))

F36Words in reg. 15(3)(b) inserted (with effect in accordance with Sch. 1 para. 96(16)(a) of the amending Act) by Taxation of Pensions Act 2014 (c. 30), Sch. 1 para. 96(7) (with Sch. 1 para. 96(16)(b))

F43Words in reg. 15(4)(b) inserted (with effect in accordance with Sch. 1 para. 96(16)(a) of the amending Act) by Taxation of Pensions Act 2014 (c. 30), Sch. 1 para. 96(8) (with Sch. 1 para. 96(16)(b))

F44Words in reg. 15(4)(b) inserted (with effect in accordance with Sch. 1 para. 96(16)(a) of the amending Act) by Taxation of Pensions Act 2014 (c. 30), Sch. 1 para. 96(9) (with Sch. 1 para. 96(16)(b))

F46Reg. 15(4A) inserted (with effect in accordance with Sch. 1 para. 96(16)(a) of the amending Act) by Taxation of Pensions Act 2014 (c. 30), Sch. 1 para. 96(10) (with Sch. 1 para. 96(16)(b))

F50Words in reg. 15(6) inserted (with effect in accordance with Sch. 1 para. 96(16)(a) of the amending Act) by Taxation of Pensions Act 2014 (c. 30), Sch. 1 para. 96(11) (with Sch. 1 para. 96(16)(b))

F52Words in reg. 15(6) inserted (with effect in accordance with Sch. 1 para. 96(16)(a) of the amending Act) by Taxation of Pensions Act 2014 (c. 30), Sch. 1 para. 96(12) (with Sch. 1 para. 96(16)(b))

F55Words in reg. 15(7) inserted (with effect in accordance with Sch. 1 para. 96(16)(a) of the amending Act) by Taxation of Pensions Act 2014 (c. 30), Sch. 1 para. 96(13) (with Sch. 1 para. 96(16)(b))

F57Words in reg. 15(7) inserted (with effect in accordance with Sch. 1 para. 96(16)(a) of the amending Act) by Taxation of Pensions Act 2014 (c. 30), Sch. 1 para. 96(14) (with Sch. 1 para. 96(16)(b))

Commencement Information

I8Reg. 15 in force at 6.4.2006, see reg. 1(1)

Modification of Schedule 32U.K.

16.  In paragraph 11(6) of Schedule 32—

(a)for “the retail prices index” (in both places) substitute “a relevant index”; and

(b)at the end add—

“Here “relevant index” means—

(a)

an index of the movement of retail prices maintained, or officially recognised, by the government of the country or territory in which the recognised overseas scheme is established; or

(b)

if there is no such index as is mentioned in paragraph (a) of this definition, the retail prices index.”.

Commencement Information

I9Reg. 16 in force at 6.4.2006, see reg. 1(1)

Modification of Schedule 34U.K.

17.  In Schedule 34 after paragraph 19 add—

“Revenue and Customs discretion

19A.—(1) Sub-paragraph (2) applies to—

(a)the member payment provisions to a payment made (or treated by this Part as made) to or in respect of—

(i)a relieved member of a relevant non-UK scheme, or

(ii)a transfer member of such a scheme;

(b)the annual allowance provisions in relation to an individual who is a currently-relieved member of a currently-relieved non-UK scheme; and

(c)the lifetime allowance provision charge in relation to an individual who is a relieved member of a relieved non-UK pension scheme.

(2) If it appears to an officer of Revenue and Customs that, by reason of some non-compliance with the requirements set out in this Part, which in the officer’s view does not materially affect the nature of a payment, the payment, or the member in respect of whom it is payable, would be treated less favourably by the strict application of the provisions mentioned in paragraph (1) than in the officer’s view is appropriate, sub-paragraph (3) applies.

(3) If this sub-paragraph applies, an officer of Revenue and Customs—

(a)may decide, and

(b)if requested to do so by a member falling within any of the descriptions in paragraphs (a) to (c) of sub-paragraph (1), shall decide,

whether, notwithstanding the non-compliance referred to in sub-paragraph (2), the treatment which, but for that non-compliance, would have applied under this Part should apply to the payment or the member (as the case may be).

This is subject to the qualification in sub-paragraph (4).

(4) An officer of Revenue and Customs shall not make a decision under sub-paragraph (3) that, notwithstanding the difference referred to in sub-paragraph (2), the provisions of this Part shall apply to the payment or the member unless—

(a)it appears to the officer that the effect of the decision would be to reduce the total cumulative tax liability in respect of the charges mentioned in subparagraph (1) of the member whose tax liability would be affected by it, taking one year with another;

(b)the officer has first given at least 28 days' notice of his intention to make the decision to the member whose tax liability would by affected by it; and

(c)the member has—

(i)consented to the making of the decision; or

(ii)failed to respond to the notice within the period specified in paragraph (b).

(5) If an officer of Revenue and Customs decides under sub-paragraph (3) that—

(a)the conditions for the exercise of his discretion under that paragraph are not met; or

(b)the conditions for its exercise are met, but that it is otherwise inappropriate for him to exercise it in favour of the member,

the member may appeal against the decision.

(6) Subsections (3) to (5) of section 170 apply for the purposes of a decision by an officer of Revenue and Customs under sub-paragraph (3) as they apply to a decision under section 169(5).

(7) The Commissioners before whom an appeal under paragraph (5) is brought must consider—

(a)whether the conditions for the exercise of the discretion of an officer of Revenue and Customs have been met; and

(b)if they are satisfied that those conditions have been met, whether the discretion ought to have been exercised in favour of the member.

(8) If they decide that the conditions for the exercise of that discretion have not been met, they must dismiss the appeal.

(9) If they decide that the conditions for the exercise of that discretion have been met, they must decide whether the discretion ought to have been exercised in favour of the member.

(10) If they decide that although the conditions are met, the discretion ought not to have been exercised in favour of the member, they must dismiss the appeal.

(11) If they decide that the discretion ought to have been exercised in favour of the member they may so decide and the provisions of this Part shall apply accordingly to the member or the payment in question (as the case may be).

(12) A decision under sub-paragraph (8) or (10) is final but subject to any further appeal or any determination on, or in consequence of, a case stated.”.

Commencement Information

I10Reg. 17 in force at 6.4.2006, see reg. 1(1)

(1)

See, in relation to overseas schemes recognised for the purposes of Part 4, the Pension Schemes (Categories of Country and Requirements for Overseas Pension Schemes and Recognised Overseas Pension Schemes) Regulations 2004.

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