23(1)A penalty under paragraph 1 may not be assessed unless—U.K.
(a)the decision that it should be assessed is taken by a designated HMRC officer, and
(b)either the condition in sub-paragraph (2) or the condition in sub-paragraph (3) is met.
(2)The condition in this sub-paragraph is that, when the assessment is made—
(a)a GAAR final decision notice has been given in relation to—
(i)the arrangements to which the penalty relates (“the relevant arrangements”), or
(ii)arrangements that are equivalent to the relevant arrangements,
(b)where a notice is required by paragraph 25 to be given to the person liable to the penalty, that notice has been given and the time allowed for making representations under that paragraph has expired, and
(c)a designated HMRC officer has, in deciding whether the penalty should be assessed, considered—
(i)the opinion of the GAAR Advisory Panel which was considered by HMRC in preparing that GAAR final decision notice, and
(ii)any representations made under paragraph 25.
(3)The condition in this sub-paragraph is that, when the assessment is made—
(a)an opinion of the GAAR Advisory Panel which applies to the relevant arrangements has been given on a referral under paragraph 26,
(b)where a notice is required by paragraph 35 to be given to the person liable to the penalty, that notice has been given and the time allowed for making representations under that paragraph has expired, and
(c)a designated HMRC officer has, in deciding whether the penalty should be assessed, considered—
(i)that opinion of the GAAR Advisory Panel, and
(ii)any representations made under paragraph 35.
(4)Where a notification of a penalty under paragraph 1 is given, the notification must be accompanied by a report prepared by HMRC of—
(a)if the condition in sub-paragraph (2) is met, the opinion of the GAAR Advisory Panel which was considered by HMRC in preparing the GAAR final decision notice;
(b)if the condition in sub-paragraph (3) is met, the opinion of the GAAR advisory panel mentioned in that sub-paragraph.
(5)Paragraph 24 contains definitions of terms used in this paragraph.
24(1)In this Schedule a “GAAR final decision notice” means a notice under—U.K.
(a)paragraph 12 of Schedule 43 to FA 2013 (notice of final decision after considering opinion of GAAR Advisory Panel on referral under Schedule 43),
(b)paragraph 8 or 9 of Schedule 43A to FA 2013 (notice of final decision after considering opinion of GAAR Advisory Panel), or
(c)paragraph 8 of Schedule 43B to FA 2013 (notice of final decision after considering opinion of GAAR Advisory Panel on referral under Schedule 43B).
(2)For the purposes of this Part of this Schedule, where the GAAR Advisory Panel gives an opinion on a referral under paragraph 26 the arrangements to which the opinion “applies” are—
(a)the arrangements in respect of which the referral was made (that is, “the arrangements in question” within the meaning given by paragraph 26(1)), and
(b)any arrangements that are equivalent to those arrangements.
(3)For the purposes of this Part of this Schedule, arrangements are “equivalent” to one another if they are substantially the same as one another having regard to—
(a)their substantive results or intended substantive results,
(b)the means of achieving those results, and
(c)the characteristics on the basis of which it could reasonably be argued, in each case, that the arrangements are abusive tax arrangements.