Finance Act 2009 Explanatory Notes

Section 98 and Schedule 50: Record-Keeping

Summary

1.Section 98 and Schedule 50 amend existing legislation to align the record-keeping rules for environmental taxes (aggregates levy, climate change levy and landfill tax), insurance premium tax (IPT) and stamp duty land tax (SDLT). The section also provides for the Schedule to come into force on a day appointed by Treasury order.

Details of the Schedule

2.Paragraph 1(1) introduces the amendments to paragraph 1 of Schedule 7 to the Finance Act 1994 (FA) 1994. This contains the record–keeping rules for IPT.

3.Paragraph 1(2)(a) inserts new paragraphs 1(3)(a) to (c) into Schedule 7 to FA 1994. This makes clear that HM Revenue & Customs (HMRC) may reduce the period for which records must be retained for IPT. Different reduced retention periods may be specified for different cases.

4.Paragraph 1(3) replaces paragraphs 1(4) to (6) of Schedule 7 to FA 1994 with a new sub-paragraph (4). The effect is to replace the existing power for HMRC to approve preservation of information instead of records with a general rule that such preservation is acceptable, subject to any conditions and exceptions set by HMRC in writing.

5.Paragraph 2 repeals a provision which is no longer required.

6.Paragraph 3 introduces the amendments to Part 4 of FA 2003. This contains the record-keeping rules for SDLT.

7.Paragraph 5(3) inserts new paragraph 9(2A) into Schedule 10 to FA 2003, which defines “the relevant day”. This is either the sixth anniversary of the effective date of the transaction, or an earlier day specified by HMRC. This allows HMRC to reduce the period for which records must be retained by specifying this in writing. Different reduced retention periods may be specified for different cases.

8.Paragraph 5(4) inserts new paragraphs 9(4)-(6) into Schedule 10 to FA 2003. New paragraph 9(4) introduces a new power for HMRC to specify by regulation the records and supporting documents that must be kept.

9.New paragraph 9(5) contains provision about the scope of regulations under paragraph 9 of Schedule 10 to FA 2003. It allows for the possibility of tertiary legislation to specify records.

10.Paragraph 6 substitutes a new paragraph 10 into Schedule 10 to FA 2003. This restates existing law which allows the preservation of information in any form and there is a new power for HMRC to specify, in writing, conditions and exceptions to this general rule.

11.Paragraph 9(2) substitutes a new paragraph 4(2) into Schedule 11 to FA 2003. This restates the current six year retention period but now allows HMRC to reduce the period for which records must be retained by specifying this in writing. Different reduced retention periods may be specified for different cases.

12.Paragraph 9(4) inserts new paragraphs 4(4)-(6) into Schedule 11 to FA 2003. New sub-paragraph (4) introduces a new power for HMRC to specify by regulation the records and supporting documents that must be kept.

13.New sub-paragraph (5) contains provision about the scope of regulations under paragraph 4 of Schedule 11 to FA 2003. It allows for the possibility of tertiary legislation to specify records.

14.Paragraph 10 substitutes a new paragraph 5 in Schedule 11 to FA 2003. This restates existing law which allows the preservation of information in any form and there is a new power for HMRC to specify conditions and exceptions to this general rule in writing.

15.Paragraph 11 makes a consequential change.

16.Paragraph 13(2) repeals paragraph 3(3) and (4) of Schedule 11A to FA 2003 which contains provisions about evidence of records that are required to be preserved. These are no longer needed.

17.Paragraph 13(3) inserts new sub-paragraphs (4A) to (4C) into paragraph 3 of Schedule 11A to FA 2003.

18.New sub-paragraph (4A) introduces a new power for HMRC to specify by regulation the records and supporting documents that must be kept.

19.New sub-paragraph (4B) contains provision about the scope of regulations under paragraph 3 of Schedule 11A to FA 2003. It allows for the possibility of tertiary legislation to specify records.

20.Paragraph 14 inserts new paragraph 3A into Schedule 11A to FA 2003. This restates existing law which allows the preservation of information in any form and there is a new power for HMRC to specify conditions and exceptions to this general rule in writing.

21.Paragraph 15 introduces the amendments to Schedule 7 to FA 2001. That Schedule includes record-keeping rules for aggregates levy.

22.Paragraph 16(2) replaces paragraphs 2(4) and (5) of Schedule 7 to FA 2003 with new sub-paragraph (4). The effect is to replace the existing power for HMRC to approve preservation of information instead of records with a general rule that such preservation is acceptable, subject to any conditions and exceptions set by HMRC in writing.

23.Paragraph 16(3) makes consequential amendments.

24.Paragraph 17 repeals paragraph 3 of Schedule 7 to FA 2003 which contains provisions about evidence of records that are required to be preserved. This is no longer needed.

25.Paragraph 18 introduces amendments to Schedule 6 to FA 2000. This contains the record-keeping rules for climate change levy.

26.Paragraph 19(2) replaces paragraphs 125(4) and (5) with new sub–paragraph (4). The effect is to replace the existing power for HMRC to approve preservation of information instead of records with a general rule that such preservation is acceptable, subject to any conditions and exceptions set by HMRC in writing.

27.Paragraph 19(3) makes consequential amendments to paragraph 125(9) of Schedule 6.

28.Paragraph 20 omits paragraph 126 of Schedule 6 to FA 2000 which contained provisions about evidence of records that are required to be preserved. This is no longer needed.

29.Paragraph 21 replaces paragraphs 2(4) to (7) of Schedule 5 to FA 1996 with a new sub-paragraph (4). That Schedule includes record-keeping rules for landfill tax. The effect is to replace the existing power for HMRC to approve preservation of information instead of records with a general rule that such preservation is acceptable, subject to any conditions and exceptions set by HMRC in writing. This paragraph also has the effect of omitting existing provisions about admissibility of documents in proceedings which are no longer needed.

Background Note

30.Schedule 37 to FA 2008 introduced a common format for rules about keeping records for income tax, capital gains tax (CGT), corporation tax (CT) and VAT. It introduced a new flexibility for HMRC to shorten the periods for which records need to be retained for income tax, CGT and CT. It also introduced new regulation-making powers for HMRC in relation to specifying records and formats which can also be exercised by tertiary legislation. Regulations can be made when there is a need for legislative certainty on particular records. Schedule 37 aligned the rules about preserving information instead of records and preserving information in any form and means, providing HMRC with flexibility to adapt to change, particularly with the increasing use of technology for keeping records.

31.The provisions of this Schedule make corresponding changes, from a day to be appointed, to the record-keeping requirements that apply to environmental taxes (aggregates levy, climate change levy and landfill tax), insurance premium tax and stamp duty land tax.

32.The changes in this Schedule also support the new compliance checking powers for these taxes and allow for a cross-tax approach to be taken by HMRC.

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