Consequential and other amendments
8For Part 3 of the Schedule (understatements and overstatements of UK VAT) substitute—
“PART 3Special schemes: collection etc of UK VAT
Assessments: general modifications of section 73
16(1)For the purposes of this Schedule, section 73 (assessments: incorrect returns etc) is to be read as if—
(a)the reference in subsection (1) of that section to returns required under this Act included relevant special scheme returns, and
(b)references in that section to a prescribed accounting period included a tax period.
(2)See also the modifications in paragraph 16A.
(3)In this Schedule “relevant special scheme return” means a special scheme return that is required to be made (wholly or partly) in respect of supplies of scheme services that are treated as made in the United Kingdom.
Assessment in connection with increase in consideration
16A(1)Sub-paragraphs (2) to (4) make modifications of sections 73 and 76 which—
(a)have effect for the purposes of this Schedule, and
(b)are in addition to any other modifications of those sections made by this Schedule.
(2)Section 73 has effect as if the following were inserted after subsection (3) of that section—
“(3A)Where a person has failed to make an amendment or notification that the person is required to make under paragraph 16K of Schedule 3B in respect of an increase in the consideration for a UK supply (as defined in paragraph 16K(7)), the Commissioners may assess the amount of VAT due from the person as a result of the increase to the best of their judgement and notify it to the person.
(3B)An assessment under subsection (3A)—
(a)is of VAT due for the tax period mentioned in paragraph 16K(1)(a) of Schedule 3B;
(b)must be made within the time limits provided for in section 77, and must not be made after the later of—
(i)2 years after the end of the tax period referred to in paragraph 16K(1)(a);
(ii)one year after evidence of facts sufficient in the opinion of the Commissioners to justify making the assessment comes to their knowledge.
(3C)Subject to section 77, where further evidence such as is mentioned in subsection (3B)(b)(ii) comes to the Commissioners’ knowledge after they have made an assessment under subsection (3A), another assessment may be made under that subsection, in addition to any earlier assessment.”
(3)The reference in section 73(9) to subsection (1) of that section is taken to include a reference to section 73(3A) (as inserted by sub-paragraph (2)).
(4)Section 76 (assessment of amounts due by way of interest etc) is to be read as if the reference in subsection (5) of that section to section 73(1) included a reference to section 73(3A) (as inserted by sub-paragraph (2)).
Assessments: consequential modifications
16BReferences to prescribed accounting periods in the following provisions are to be read in accordance with the modifications made by paragraphs 16 and 16A—
(a)section 74 (interest on VAT recovered or recoverable by assessment);
(b)section 76 (assessment of amounts due by way of penalty, interest or surcharge);
(c)section 77 (assessment: time limits).
Deemed amendments of relevant special scheme returns
16C(1)Where a person who has made a relevant special scheme return makes a claim under paragraph 16I(7)(b) (overpayments) in relation to an error in the return, the relevant special scheme return is taken for the purposes of this Act to have been amended by the information in the claim.
(2)Where a person who has made a relevant special scheme return gives the Commissioners a notice relating to the return under paragraph 16K(2)(b) (increase or decrease in consideration), the relevant special scheme return is taken for the purposes of this Act to have been amended by that information.
(3)Where (in a case not falling within sub-paragraph (1) or (2)) a person who has made a relevant special scheme return notifies the Commissioners (after the expiry of the period during which the non-UK return may be amended under Article 61 of the Implementing Regulation) of a change that needs to be made to the return to correct an error, or rectify an omission, in it, the relevant special scheme return is taken for the purposes of this Act to have been amended by that information.
(4)The Commissioners may by regulations—
(a)specify within what period and in what form and manner notice may be given under sub-paragraph (3);
(b)require notices to be supported by documentary evidence described in the regulations.
Interest on VAT: “reckonable date”
16D(1)Sub-paragraph (2) states the “reckonable date” for the purposes of section 74(1) and (2) for any case where an amount carrying interest under that section—
(a)is an amount assessed under section 73(2) (refunds etc) in reliance on paragraph 16, or that could have been so assessed, and
(b)was correctly paid or credited to the person, but would not have been paid or credited to the person had the facts been as they later turn out to be.
(2)The “reckonable date” is the first day after the end of the tax period in which the events occurred as a result of which the Commissioners were authorised to make the assessment (that was or could have been made) under section 73(2).
(3)Sub-paragraph (4) states the “reckonable date”, for any other case where an amount carrying interest under section 74 is assessed under section 74(1) or (2) in reliance on paragraph 16, or could have been so assessed.
(4)The “reckonable date” is taken to be the latest date by which a non-UK return was required to be made for the tax period to which the amount assessed relates.
(5)Where section 74(1) or (2) (interest on VAT recovered or recoverable by assessment) applies in relation to an amount assessed under section 73(3A) (as inserted by paragraph 16A(2)), the “reckonable date” for the purposes of section 74(1) or (2) is taken to be the day after the end of the tax period referred to in paragraph 16K(2).
Default surcharge: notice of special surcharge period
16E(1)A person who is required to make a relevant special scheme return for a tax period is regarded for the purposes of this paragraph and paragraph 16F as being in default in respect of that period if either—
(a)conditions 1A and 2A are met, or
(b)conditions 1B and 2B are met;
(but see also paragraph 16G).
(2)For the purposes of sub-paragraph (1)(a)—
(a)condition 1A is that the tax authorities for the administering member State have not received the return by the deadline for submitting it;
(b)condition 2A is that those tax authorities have, in accordance with Article 60a of the Implementing Regulation, issued a reminder of the obligation to submit the return.
(3)For the purposes of sub-paragraph (1)(b)—
(a)condition 1B is that, by the deadline for submitting the return, the tax authorities for the administering member State have received the return but have not received the amount of VAT shown on the return as payable by the person in respect of the tax period;
(b)condition 2B is that those tax authorities have, in accordance with Article 60a of the Implementing Regulation, issued a reminder of the VAT outstanding.
(4)The Commissioners may serve on a person who is in default in respect of a tax period a notice (a “special surcharge liability notice”) specifying a period—
(a)ending on the first anniversary of the last day of that tax period, and
(b)beginning on the date of the notice.
(5)A period specified under sub-paragraph (4) is a “special surcharge period”.
(6)If a special surcharge liability notice is served in respect of a tax period which ends at or before the end of an existing special surcharge period, the special surcharge period specified in that notice must be expressed as a continuation of the existing special surcharge period (so that the existing period and its extension are regarded as a single special surcharge period).
Further default after service of notice
16F(1)If a person on whom a special surcharge liability notice has been served—
(a)is in default in respect of a tax period ending within the special surcharge period specified in (or extended by) that notice, and
(b)has outstanding special scheme VAT for that tax period,
the person is to be liable to a surcharge of the amount given by sub-paragraph (2).
(2)The surcharge is equal to whichever is the greater of—
(a)£30, and
(b)the specified percentage of the person’s outstanding special scheme VAT for the tax period.
(3)The specified percentage depends on whether the tax period is the first, second or third etc in the default period in respect of which the person is in default and has outstanding special scheme VAT, and is—
(a)for the first such tax period, 2%;
(b)for the second such tax period, 5%;
(c)for the third such tax period, 10%;
(d)for each such tax period after the third, 15%.
(4)“Special scheme VAT”, in relation to a person, means VAT that the person is liable to pay to the tax authorities for the administering member State under a special scheme in respect of supplies of scheme services treated as made in the United Kingdom.
(5)A person has “outstanding special scheme VAT” for a tax period if some or all of the special scheme VAT for which the person is liable in respect of that period has not been paid by the deadline for the person to submit a special scheme return for that period (and the amount unpaid is referred to in sub-paragraph (2)(b) as “the person’s outstanding special scheme VAT” for the tax period).
Default surcharge: exceptions for reasonable excuse etc
16G(1)A person who would otherwise have been liable to a surcharge under paragraph 16F(1) is not to be liable to the surcharge if the person satisfies the Commissioners or, on appeal, the tribunal that, in the case of a default which is material to the surcharge—
(a)the special scheme return or, as the case may be, the VAT shown on that return, was despatched at such a time and in such manner that it was reasonable to expect that it would be received by the tax authorities for the administering member State within the appropriate time limit, or
(b)there is a reasonable excuse for the return or the VAT not having been so despatched.
(2)Where sub-paragraph (1) applies to a person—
(a)the person is treated as not having been in default in respect of the tax period in question, and
(b)accordingly, any special surcharge liability notice the service of which depended on that default is regarded as not having been served.
(3)A default is “material” to a surcharge if—
(a)it is the default which gives rise to the surcharge, under paragraph 16F(1), or
(b)it is a default which was taken into account in the service of the special surcharge liability notice on which the surcharge depends and the person concerned has not previously been liable to a surcharge in respect of a tax period ending within the special surcharge period specified in or extended by that notice.
(4)A default is left out of account for the purposes of paragraphs 16E(4) and 16F(1) if—
(a)the conduct by virtue of which the person is in default is also conduct falling within section 69(1) (breaches of regulatory provisions), and
(b)by reason of that conduct the person concerned is assessed to a penalty under that section.
(5)If the Commissioners, after consultation with the Treasury, so direct, a default in respect of a tax period specified in the direction is to be left out of account for the purposes of paragraphs 16E(4) and 16F(1).
(6)Section 71(1) (meaning of “reasonable excuse”) applies for the purposes of this paragraph as it applies for the purposes of sections 59 to 70.
Interest in certain cases of official error
16H(1)Section 78 (interest in certain cases of official error) applies as follows in relation to a case where, due to an error on the part of the Commissioners—
(a)a person has accounted, under a special scheme, for an amount by way of UK VAT that was not UK VAT due from the person, and as a result the Commissioners are liable under paragraph 16I to pay (or repay) an amount to the person, or
(b)(in a case not falling within paragraph (a)), a person has paid, in accordance with an obligation under a special scheme, an amount by way of UK VAT that was not UK VAT due from the person and which the Commissioners are in consequence liable to repay to the person.
(2)Section 78 has effect as if the condition in section 78(1)(a) were met in relation to that person.
(3)In the application of section 78 as a result of this paragraph, section 78(12)(b) is read as providing that any reference in that section to a return is to a return required to be made under a special scheme.
(4)In section 78 in its application as a result of this section, “output tax” has the meaning that that expression would have if the reference in section 24(2) to a “taxable person” were to a “person”.
Overpayments
16I(1)A person may make a claim if the person—
(a)has made a special scheme return for a tax period relating wholly or partly to supplies of scheme services treated as made in the United Kingdom,
(b)has accounted to the tax authorities for the administering member State (whether that is the United Kingdom or another member State) for VAT in respect of those supplies, and
(c)in doing so has brought into account as UK VAT due to those authorities an amount (“the overpaid amount”) that was not UK VAT due to them.
(2)A person may make a claim if the person has, as a participant in a special scheme, paid (to the tax authorities for the administering member State or to the Commissioners) an amount by way of UK VAT that was not UK VAT due (“the overpaid amount”), otherwise than in the circumstances mentioned in sub-paragraph (1)(c).
(3)A person who is or has been a participant in a special scheme may make a claim if the Commissioners—
(a)have assessed the person to VAT for a tax period, and
(b)in doing so, have brought into account as VAT an amount (“the amount not due”) that was not VAT due.
(4)Where a person makes a claim under sub-paragraph (1) or (2), the Commissioners must repay the overpaid amount to the person.
(5)Where a person makes a claim under sub-paragraph (3), the Commissioners must credit the person with the amount not due.
(6)Where—
(a)as a result of a claim under sub-paragraph (3) an amount is to be credited to a person, and
(b)after setting any sums against that amount under or by virtue of this Act, some or all of the amount remains to the person’s credit,
the Commissioners must pay (or repay) to the person so much of the amount as remains to the person’s credit.
(7)The reference in sub-paragraph (1) to a claim is to a claim made—
(a)by correcting, in accordance with Article 61 of the Implementing Regulation, the error in the non-UK return mentioned in sub-paragraph (1)(a), or
(b)(after the expiry of the period during which the non-UK return may be amended under Article 61) to the Commissioners.
(8)Sub-paragraphs (1) and (2) do not require any amount to be repaid except so far as that is required by Article 63 of the Implementing Regulation.
Overpayments: supplementary
16J(1)In section 80—
(a)subsections (3) to (3C) (unjust enrichment), and
(b)subsections (4A), (4C) and (6) (recovery by assessment of amounts wrongly credited),
have effect as if a claim under paragraph 16I(1) were a claim under section 80(1), a claim under paragraph 16I(2) were a claim under section 80(1B) and a claim under paragraph 16I(3) were a claim under section 80(1A).
(2)In section 80(3) to (3C), (4A), (4C) and (6), as applied by sub-paragraph (1)—
(a)references to the crediting of amounts are to be read as including the payment of amounts;
(b)references to a prescribed accounting period include a tax period.
(3)The Commissioners are not liable to repay the overpaid amount on a claim made—
(a)under paragraph 16I(2),or
(b)as mentioned in paragraph 16I(7)(b),
if the claim is made more than 4 years after the relevant date.
(4)On a claim made under paragraph 16I(3), the Commissioners are not liable to credit the amount not due if the claim is made more than 4 years after the relevant date.
(5)The “relevant date” is—
(a)in the case of a claim under paragraph 16I(1), the end of the tax period mentioned in paragraph 16I(1)(a), except in the case of a claim resulting from an incorrect disclosure;
(b)in the case of a claim under paragraph 16I(1) resulting from an incorrect disclosure, the end of the tax period in which the disclosure was made;
(c)in the case of a claim under paragraph 16I(2), the date on which the payment was made;
(d)in the case of a claim under paragraph 16I(3), the end of the quarter in which the assessment was made.
(6)A person makes an “incorrect disclosure” where—
(a)the person discloses to the tax authorities in question (whether the Commissioners or the tax authorities for the administering member State) that the person has not brought into account for a tax period an amount of UK VAT due for the period (“the disclosed amount”),
(b)the disclosure is made in a later tax period, and
(c)some or all of the disclosed amount is not in fact VAT due.
Increase or decrease in consideration for a supply
16K(1)This paragraph applies where—
(a)a person makes a special scheme return for a tax period (“the affected tax period”) relating (wholly or partly) to a UK supply, and
(b)after the return has been made the amount of the consideration for the UK supply increases or decreases.
(2)The person must, in the tax period in which the increase or decrease is accounted for in the person’s business accounts—
(a)amend the special scheme return to take account of the increase or decrease, or
(b)(if the period during which the person is entitled under Article 61 of the Implementing Regulation to amend the special scheme return has expired) notify the Commissioners of the adjustment needed to the figures in the special scheme return because of the increase or decrease.
(3)Where the change to which an amendment or notice under sub-paragraph (2) relates is an increase in the consideration for a UK supply, the person must pay to the tax authorities for the administering member State (in accordance with Article 62 of the Implementing Regulation) or, in a case falling within sub-paragraph (2)(b), the Commissioners, the difference between—
(a)the amount of VAT that was chargeable on the supply before the increase in consideration, and
(b)the amount of VAT that is chargeable in respect of the whole of the increased consideration for the supply.
(4)Where the change to which an amendment or notice under sub-paragraph (2) relates is a decrease in the consideration for a UK supply, the amendment or notice has effect as a claim; and where a claim is made the Commissioners must repay any VAT paid by the person that would not have been VAT due from the person had the consideration for the supply always been the decreased amount.
(5)The Commissioners may by regulations specify—
(a)the latest time by which, and the form and manner in which, a claim or other notice under sub-paragraph (2)(b) must be given;
(b)the latest time by which, and the form in which, a payment under sub-paragraph (3) must be made in a case within sub-paragraph (2)(b).
(6)A payment made under sub-paragraph (3) in a case within sub-paragraph (2)(a) must be made before the end of the tax period referred to in sub-paragraph (2).
(7)In this paragraph “UK supply” means a supply of scheme services that is treated as made in the United Kingdom.
Bad debts
16LWhere a participant in a special scheme—
(a)has submitted a special scheme return to the tax authorities for the administering member State, and
(b)amends the return to take account of the writing-off as a bad debt of the whole or part of the consideration for a supply of scheme services that is treated as made in the United Kingdom,
the amending of the return may be treated as the making of a claim to the Commissioners for the purposes of section 36(2) (bad debts: claim for refund of VAT).
Penalties for errors: disclosure
16MWhere a person corrects a special scheme return in a way that constitutes telling the tax authorities for the administering member State about—
(a)an inaccuracy in the return,
(b)a supply of false information, or
(c)a withholding of information,
the person is regarded as telling HMRC about that for the purposes of paragraph 9 of Schedule 24 to the Finance Act 2007.
Set-offs
16NWhere a participant in a special scheme is liable to pay UK VAT to the tax authorities for the administering member State in accordance with the scheme, the UK VAT is regarded for the purposes of section 130(6) of the Finance Act 2008 (set-off: England, Wales and Northern Ireland) as payable to the Commissioners.”