Finance (No. 2) Act 2017

PART 1 Duties to disclose avoidance schemes etc

Preliminary: application of definitions

1 The definitions in paragraphs 2, 3, and 7 to 10 apply for the purposes of this Schedule.

“Indirect tax”

2 (1) “Indirect tax” means any of the following—

• VAT

• insurance premium tax

• general betting duty

• pool betting duty

• remote gaming duty

• machine games duty

• gaming duty

• lottery duty

• bingo duty

• air passenger duty

• hydrocarbon oils duty

• tobacco products duty

• duties on spirits, beer, wine, made-wine and cider

• soft drinks industry levy

• aggregates levy

• landfill tax

• climate change levy

• customs duties.

(2) The Treasury may by regulations amend the list in sub-paragraph (1) by adding, varying or omitting an entry for a tax.

“Notifiable arrangements” and “notifiable proposal”

3 (1) “Notifiable arrangements” means any arrangements not excluded by sub-paragraph (2) which—

(a) fall within any description prescribed by the Treasury by regulations,

(b) enable, or might be expected to enable, any person to obtain a tax advantage in relation to any indirect tax that is so prescribed in relation to arrangements of that description, and

(c) are such that the main benefit, or one of the main benefits, that might be expected to arise from the arrangements is the obtaining of that tax advantage.

(2) Arrangements that meet the requirements in paragraphs (a) to (c) of sub-paragraph (1) are not notifiable arrangements if they implement a proposal which is excluded from being a notifiable proposal by sub-paragraph (4).

(3) “Notifiable proposal” means a proposal for arrangements which, if entered into, would be notifiable arrangements (whether the proposal relates to a particular person or to any person who may seek to take advantage of it).

(4) A proposal is not a notifiable proposal if any of the following occur before 1 January 2018—

(a) a promoter first makes a firm approach to another person in relation to the proposal,

(b) a promoter makes the proposal available for implementation by any other person, or

(c) a promoter first becomes aware of any transaction forming part of arrangements implementing the proposal.

4 (1) HMRC may apply to the tribunal for an order that—

(a) a proposal is notifiable, or

(b) arrangements are notifiable.

(2) An application must specify—

(a) the proposal or arrangements in respect of which the order is sought, and

(b) the promoter.

(3) On an application the tribunal may make the order only if satisfied that paragraph 3(1)(a) to (c) applies to the relevant arrangements and that they are not excluded from being notifiable by paragraph 3(2).

5 (1) HMRC may apply to the tribunal for an order that—

(a) a proposal is to be treated as notifiable, or

(b) arrangements are to be treated as notifiable.

(2) An application must specify—

(a) the proposal or arrangements in respect of which the order is sought, and

(b) the promoter.

(3) On an application the tribunal may make the order only if satisfied that HMRC—

(a) have taken all reasonable steps to establish whether the proposal or arrangements are notifiable, and

(b) have reasonable grounds for suspecting that the proposal or arrangements may be notifiable.

(4) Reasonable steps under sub-paragraph (3)(a) may (but need not) include taking action under paragraph 29 or 30.

(5) Grounds for suspicion under sub-paragraph (3)(b) may include—

(a) the fact that the relevant arrangements fall within a description prescribed under paragraph 3(1)(a),

(b) an attempt by the promoter to avoid or delay providing information or documents about the proposal or arrangements under or by virtue of paragraph 29 or 30,

(c) the promoter’s failure to comply with a requirement under or by virtue of paragraph 29 or 30 in relation to another proposal or other arrangements.

(6) Where an order is made under this paragraph in respect of a proposal or arrangements, the relevant period for the purposes of sub-paragraph (1) of paragraph 11 or 12 in so far as it applies by virtue of the order is the period of 11 days beginning with the day on which the order is made.

(7) An order under this paragraph in relation to a proposal or arrangements is without prejudice to the possible application of any of paragraphs 11 to 15, other than by virtue of this paragraph, to the proposal or arrangements.

“Tax advantage” in relation to VAT

6 (1) A person (P) obtains a tax advantage in relation to VAT if—

(a) in any prescribed accounting period, the amount by which the output tax accounted for by P exceeds the input tax deducted by P is less than it would otherwise be;

(b) P obtains a VAT credit when P would otherwise not do so, or obtains a larger credit or obtains a credit earlier than would otherwise be the case;

(c) in a case where P recovers input tax as a recipient of a supply before the supplier accounts for the output tax, the period between the time when the input tax is recovered and the time when the output tax is accounted for is greater than would otherwise be the case;

(d) in any prescribed accounting period, the amount of P’s non-deductible tax is less than it otherwise would be;

(e) P avoids an obligation to account for tax.

(2) In sub-paragraph (1)(d) “non-deductible tax”, in relation to a taxable person, means—

(a) input tax for which the person is not entitled to credit under section 25 of VATA 1994,

(b) any VAT incurred by the person which is not input tax and in respect of which the person is not entitled to a refund from the Commissioners by virtue of any provision of VATA 1994.

(3) For the purposes of sub-paragraph (2)(b), the VAT “incurred” by a taxable person is—

(a) VAT on the supply to the person of any goods or services,

(b) VAT on the acquisition by the person from another member State of any goods,

(c) VAT paid or payable by the person on the importation of any goods from a place outside the member States.

(4) A person who is not a taxable person obtains a tax advantage in relation to VAT if that person’s non-refundable tax is less that it otherwise would be.

(5) In sub-paragraph (4) “non-refundable tax” means—

(a) VAT on the supply to the person of any goods or services,

(b) VAT on the acquisition by the person from another member State of goods,

(c) VAT paid or payable by the person on the importation of any goods from a place outside the member States,

but excluding (in each case) any VAT in respect of which the person is entitled to a refund from the Commissioners by virtue of any provision of VATA 1994.

(6) Terms used in this paragraph which are defined in section 96 of VATA 1994 have the meanings given by that section.

“Tax advantage” in relation to taxes other than VAT

7 “Tax advantage”, in relation to an indirect tax other than VAT, means—

(a) relief or increased relief from tax,

(b) repayment or increased repayment of tax,

(c) avoidance or reduction of a charge to tax, an assessment of tax or a liability to pay tax,

(d) avoidance of a possible assessment to tax or liability to pay tax,

(e) deferral of a payment of tax or advancement of a repayment of tax, or

(f) avoidance of an obligation to deduct or account for tax.

“Promoter”

8 (1) This paragraph describes when a person (P) is a promoter in relation to a notifiable proposal or notifiable arrangements.

(2) P is a promoter in relation to a notifiable proposal if, in the course of a relevant business, P—

(a) is to any extent responsible for the design of the proposed arrangements,

(b) makes a firm approach to another person (C) in relation to the proposal with a view to P making the proposal available for implementation by C or any other person, or

(c) makes the proposal available for implementation by other persons.

(3) P is a promoter in relation to notifiable arrangements if—

(a) P is by virtue of sub-paragraph (2)(b) or (c) a promoter in relation to a notifiable proposal which is implemented by the arrangements, or

(b) if in the course of a relevant business, P is to any extent responsible for—

(i) the design of the arrangements, or

(ii) the organisation or management of the arrangements.

(4) In this paragraph “relevant business” means any trade, profession or business which—

(a) involves the provision to other persons of services relating to taxation, or

(b) is carried on by a bank or securities house.

(5) In sub-paragraph (4)(b)—

• “bank” has the meaning given by section 1120 of CTA 2010, and

• “securities house” has the meaning given by section 1009(3) of that Act.

(6) For the purposes of this paragraph anything done by a company is to be taken to be done in the course of a relevant business if it is done for the purposes of a relevant business falling within sub-paragraph (4)(b) carried on by another company which is a member of the same group.

(7) Section 170 of the TCGA 1992 has effect for determining for the purposes of sub-paragraph (6) whether two companies are members of the same group, but as if in that section—

(a) for each of the references to a 75 per cent subsidiary there were substituted a reference to a 51 per cent subsidiary, and

(b) subsection (3)(b) and subsections (6) to (8) were omitted.

(8) A person is not to be treated as a promoter by reason of anything done in prescribed circumstances.

(9) In the application of this Schedule to a proposal or arrangements which are not notifiable, a reference to a promoter is a reference to a person who would be a promoter under this paragraph if the proposal or arrangements were notifiable.

“Introducer”

9 (1) A person is an introducer in relation to a notifiable proposal if the person makes a marketing contact with another person in relation to the proposal.

(2) A person is not to be treated as an introducer by reason of anything done in prescribed circumstances.

(3) In the application of this Schedule to a proposal or arrangements which are not notifiable, a reference to an introducer is a reference to a person who would be an introducer under this paragraph if the proposal or arrangements were notifiable.

“Makes a firm approach” and “marketing contact”

10 (1) A person makes a firm approach to another person in relation to a notifiable proposal if the person makes a marketing contact with the other person in relation to the proposal at a time when the proposed arrangements have been substantially designed.

(2) A person makes a marketing contact with another person in relation to a notifiable proposal if—

(a) the person communicates information about the proposal to the other person,

(b) the communication is made with a view to that other person, or any other person, entering into transactions forming part of the proposed arrangements, and

(c) the information communicated includes an explanation of the tax advantage that might be expected to be obtained from the proposed arrangements.

(3) For the purposes of sub-paragraph (1) proposed arrangements have been substantially designed at any time if by that time the nature of the transactions to form part of them has been sufficiently developed for it to be reasonable to believe that a person who wished to obtain the tax advantage mentioned in sub-paragraph (2)(c) might enter into—

(a) transactions of the nature developed, or

(b) transactions not substantially different from transactions of that nature.

Duties of promoter in relation to notifiable proposals or notifiable arrangements

11 (1) A person who is a promoter in relation to a notifiable proposal must, within the relevant period, provide HMRC with prescribed information relating to the proposal.

(2) In sub-paragraph (1) “the relevant period” is the period of 31 days beginning with the relevant date.

(3) In sub-paragraph (2) “the relevant date” is the earliest of the following—

(a) the date on which the promoter first makes a firm approach to another person in relation to the proposal,

(b) the date on which the promoter makes the proposal available for implementation by any other person, or

(c) the date on which the promoter first becomes aware of any transaction forming part of notifiable arrangements implementing the proposal.

12 (1) A person who is a promoter in relation to notifiable arrangements must, within the relevant period after the date on which the person first becomes aware of any transaction forming part of the arrangements, provide HMRC with prescribed information relating to the arrangements.

(2) In sub-paragraph (1) “the relevant period” is the period of 31 days beginning with that date.

(3) The duty under sub-paragraph (1) does not apply if the notifiable arrangements implement a proposal in respect of which notice has been given to HMRC under paragraph 11(1).

13 (1) This paragraph applies where a person complies with paragraph 11(1) in relation to a notifiable proposal for arrangements and another person is—

(a) also a promoter in relation to the proposal or is a promoter in relation to a notifiable proposal for arrangements which are substantially the same as the proposed arrangements (whether they relate to the same or different parties), or

(b) a promoter in relation to notifiable arrangements implementing the proposal or notifiable arrangements which are substantially the same as notifiable arrangements implementing the proposal (whether they relate to the same or different parties).

(2) Any duty of the other person under paragraph 11(1) or 12(1) in relation to the notifiable proposal or notifiable arrangements is discharged if—

(a) the person who complied with paragraph 11(1) has notified the identity and address of the other person to HMRC or the other person holds the reference number allocated to the proposed notifiable arrangements under paragraph 22(1), and

(b) the other person holds the information provided to HMRC in compliance with paragraph 11(1).

14 (1) This paragraph applies where a person complies with paragraph 12(1) in relation to notifiable arrangements and another person is—

(a) a promoter in relation to a notifiable proposal for arrangements which are substantially the same as the notifiable arrangements (whether they relate to the same or different parties), or

(b) also a promoter in relation to the notifiable arrangements or notifiable arrangements which are substantially the same (whether they relate to the same or different parties).

(2) Any duty of the other person under paragraph 11(1) or 12(1) in relation to the notifiable proposal or notifiable arrangements is discharged if—

(a) the person who complied with paragraph 12(1) has notified the identity and address of the other person to HMRC or the other person holds the reference number allocated to the notifiable arrangements under paragraph 22(1), and

(b) the other person holds the information provided to HMRC in compliance with paragraph 12(1).

15 Where a person is a promoter in relation to two or more notifiable proposals or sets of notifiable arrangements which are substantially the same (whether they relate to the same parties or different parties) the person need not provide information under paragraph 11(1) or 12(1) if the person has already provided information under either of those paragraphs in relation to any of the other proposals or arrangements.

Duty of promoter: supplemental information

16 (1) This paragraph applies where—

(a) a promoter (P) has provided information in purported compliance with paragraph 11(1) or 12(1), but

(b) HMRC believe that P has not provided all the prescribed information.

(2) HMRC may apply to the tribunal for an order requiring P to provide specified information about, or documents relating to, the notifiable proposal or arrangements.

(3) The tribunal may make an order under sub-paragraph (2) in respect of information or documents only if satisfied that HMRC have reasonable grounds for suspecting that the information or documents—

(a) form part of the prescribed information, or

(b) will support or explain the prescribed information.

(4) A requirement by virtue of sub-paragraph (2) is to be treated as part of P’s duty under paragraph 11(1) or 12(1).

(5) In so far as P’s duty under sub-paragraph (1) of paragraph 11 or 12 arises out of an order made by virtue of sub-paragraph (2) above the relevant period for the purposes of that sub-paragraph (1) is—

(a) the period of 11 days beginning with the date of the order, or

(b) such longer period as HMRC may direct.

Duty of person dealing with promoter outside United Kingdom

17 (1) This paragraph applies where a person enters into any transaction forming part of any notifiable arrangements in relation to which—

(a) a promoter is resident outside the United Kingdom, and

(b) no promoter is resident in the United Kingdom.

(2) The person must, within the relevant period, provide HMRC with prescribed information relating to the arrangements.

(3) In sub-paragraph (2) “the relevant period” is the period of 6 days beginning with the day on which the person enters into the first transaction forming part of the arrangements.

(4) Compliance with paragraph 11(1) or 12(1) by any promoter in relation to the arrangements discharges the person’s duty under sub-paragraph (1).

Duty of parties to notifiable arrangements not involving promoter

18 (1) This paragraph applies to any person who enters into any transaction forming part of notifiable arrangements as respects which neither that person nor any other person in the United Kingdom is liable to comply with paragraph 11(1), 12(1) or 17(2).

(2) The person must at the prescribed time provide HMRC with prescribed information relating to the arrangements.

Duty to provide further information requested by HMRC

19 (1) This paragraph applies where—

(a) a person has provided the prescribed information about notifiable proposals or arrangements in compliance with paragraph 11(1), 12(1), 17(2) or 18(2), or

(b) a person has provided information in purported compliance with paragraph 17(2) or 18(2) but HMRC believe that the person has not provided all the prescribed information.

(2) HMRC may require the person to provide—

(a) further specified information about the notifiable proposals or arrangements (in addition to the prescribed information under paragraph 11(1), 12(1), 17(2) or 18(2));

(b) documents relating to the notifiable proposals or arrangements.

(3) Where HMRC impose a requirement on a person under this paragraph, the person must comply with the requirement within—

(a) the period of 10 working days beginning with the day on which HMRC imposed the requirement, or

(b) such longer period as HMRC may direct.

20 (1) This paragraph applies where HMRC—

(a) have required a person to provide information or documents under paragraph 19, but

(b) believe that the person has failed to provide the information or documents required.

(2) HMRC may apply to the tribunal for an order requiring the person to provide the information or documents required.

(3) The tribunal may make an order imposing such a requirement only if satisfied that HMRC have reasonable grounds for suspecting that the information or documents will assist HMRC in considering the notifiable proposals or arrangements.

(4) Where the tribunal makes an order imposing such a requirement, the person must comply with the requirement within—

(a) the period of 10 working days beginning with the day on which the tribunal made the order, or

(b) such longer period as HMRC may direct.

Duty of promoters to provide updated information

21 (1) This paragraph applies where—

(a) information has been provided under paragraph 11(1), or 12(1) about any notifiable arrangements, or proposed notifiable arrangements, to which a reference number is allocated under paragraph 22, and

(b) after the provision of the information, there is a change in relation to the arrangements of a kind mentioned in sub-paragraph (2).

(2) The changes referred to in sub-paragraph (1)(b) are—

(a) a change in the name by which the notifiable arrangements, or proposed notifiable arrangements, are known;

(b) a change in the name or address of any person who is a promoter in relation to the arrangements or, in the case of proposed arrangements, the notifiable proposal.

(3) A person who is a promoter in relation to the notifiable arrangements or, in the case of proposed notifiable arrangements, the notifiable proposal must inform HMRC of the change mentioned in sub-paragraph (1)(b) within 30 days after it is made.

(4) Sub-paragraphs (5) and (6) apply for the purposes of sub-paragraph (3) where there is more than one person who is a promoter in relation to the notifiable arrangements or proposal.

(5) If the change in question is a change in the name or address of a person who is a promoter in relation to the notifiable arrangements or proposal, it is the duty of that person to comply with sub-paragraph (3).

(6) If a person provides information in compliance with sub-paragraph (3), the duty imposed by that sub-paragraph on any other person, so far as relating to the provision of that information, is discharged.

Arrangements to be given reference number

22 (1) Where a person (P) complies or purports to comply with paragraph 11(1), 12(1), 17(2) or 18(2) in relation to any notifiable proposal or notifiable arrangements, HMRC may within 90 days allocate a reference number to the notifiable arrangements or, in the case of a notifiable proposal, to the proposed notifiable arrangements.

(2) If HMRC do so it must notify the number to P and (where the person is one who has complied or purported to comply with paragraph 11(1) or 12(1)), to any other person—

(a) who is a promoter in relation to—

(i) the notifiable proposal (or arrangements implementing the notifiable proposal), or

(ii) the notifiable arrangements (or proposal implemented by the notifiable arrangements), and

(b) whose identity and address has been notified to HMRC by P.

(3) The allocation of a reference number to any notifiable arrangements (or proposed notifiable arrangements) is not to be regarded as constituting any indication by HMRC that the arrangements would or could as a matter of law result in the obtaining by any person of a tax advantage.

(4) In this Part of this Schedule “reference number”, in relation to any notifiable arrangements, means the reference number allocated under this paragraph.

Duty of promoter to notify client of number

23 (1) This paragraph applies where a person who is a promoter in relation to notifiable arrangements is providing (or has provided) services to any person (“the client”) in connection with the arrangements.

(2) The promoter must, within 30 days after the relevant date, provide the client with prescribed information relating to any reference number (or, if more than one, any one reference number) that has been notified to the promoter (whether by HMRC or any other person) in relation to—

(a) the notifiable arrangements, or

(b) any arrangements substantially the same as the notifiable arrangements (whether involving the same or different parties).

(3) In sub-paragraph (2) “the relevant date” means the later of—

(a) the date on which the promoter becomes aware of any transaction which forms part of the notifiable arrangements, and

(b) the date on which the reference number is notified to the promoter.

(4) But where the conditions in sub-paragraph (5) are met the duty imposed on the promoter under sub-paragraph (2) to provide the client with information in relation to notifiable arrangements is discharged

(5) Those conditions are—

(a) that the promoter is also a promoter in relation to a notifiable proposal and provides services to the client in connection with them both,

(b) the notifiable proposal and the notifiable arrangements are substantially the same, and

(c) the promoter has provided to the client, in a form and manner specified by HMRC, prescribed information relating to the reference number that has been notified to the promoter in relation to the proposed notifiable arrangements.

(6) HMRC may give notice that, in relation to notifiable arrangements specified in the notice, promoters are not under the duty under sub-paragraph (2) after the date specified in the notice.

Duty of client to notify parties of number

24 (1) In this paragraph “client” means a person to whom a person who is a promoter in relation to notifiable arrangements or a notifiable proposal is providing (or has provided) services in connection with the arrangements or proposal.

(2) Sub-paragraph (3) applies where the client receives prescribed information relating to the reference number allocated to the arrangements or proposed arrangements,

(3) The client must, within the relevant period, provide prescribed information relating to the reference number to any other person—

(a) who the client might reasonably be expected to know is or is likely to be a party to the arrangements or proposed arrangements, and

(b) who might reasonably be expected to gain a tax advantage in relation to any relevant tax by reason of the arrangements or proposed arrangements.

(4) In sub-paragraph (3) “the relevant period” is the period of 30 days beginning with the later of—

(a) the day on which the client first becomes aware of any transaction forming part of the notifiable arrangements or proposed notifiable arrangements, and

(b) the day on which the prescribed information is notified to the client by the promoter under paragraph 23.

(5) HMRC may give notice that, in relation to notifiable arrangements or a notifiable proposal specified in the notice, persons are not under the duty under sub-paragraph (3) after the date specified in the notice.

(6) The duty under sub-paragraph (3) does not apply in prescribed circumstances.

(7) For the purposes of this paragraph a tax is a “relevant tax”, in relation to arrangements or arrangements proposed in a proposal of any description, if it is prescribed in relation to arrangements or proposals of that description by regulations under paragraph 3(1).

Duty of client to provide information to promoter

25 (1) This paragraph applies where a person who is a promoter in relation to notifiable arrangements has provided a person (“the client”) with the information prescribed under paragraph 23(2).

(2) The client must, within the relevant period, provide the promoter with prescribed information relating to the client.

(3) In sub-paragraph (2) “the relevant period” is the period of 11 days beginning with the later of—

(a) the date the client receives the reference number for the arrangements, and

(b) the date the client first enters into a transaction which forms part of the arrangements.

(4) The duty under sub-paragraph (2) is subject to any exceptions that may be prescribed.

Duty of parties to notifiable arrangements to notify HMRC of number, etc

26 (1) Any person (P) who is a party to any notifiable arrangements must provide HMRC with prescribed information relating to—

(a) any reference number notified to P under paragraph 23 or 24, and

(b) the time when P obtains or expects to obtain by virtue of the arrangements a tax advantage in relation to any relevant tax.

(2) For the purposes of sub-paragraph (1) a tax is a “relevant tax” in relation to any notifiable arrangements if it is prescribed in relation to arrangements of that description by regulations under paragraph 3(1).

(3) Regulations made by the Commissioners may—

(a) in prescribed cases, require the information prescribed under sub-paragraph (1) to be given to HMRC—

(i) in the prescribed manner,

(ii) in the prescribed form,

(iii) at the prescribed time, and

(b) in prescribed cases, require the information prescribed under sub-paragraph (1) and such other information as is prescribed to be provided separately to HMRC at the prescribed time or times.

(4) In sub-paragraph (3) “prescribed” includes being prescribed in a document made under a power conferred by regulations made by the Commissioners.

(5) HMRC may give notice that, in relation to notifiable arrangements specified in the notice, persons are not under the duty under sub-paragraph (1) after the date specified in the notice.

(6) The duty under sub-paragraph (1) does not apply in prescribed circumstances.

Duty of promoter to provide details of clients

27 (1) This paragraph applies where a person who is a promoter in relation to notifiable arrangements is providing (or has provided) services to any person (“the client”) in connection with the arrangements and either—

(a) the promoter is subject to the reference number information requirement, or

(b) the promoter has failed to comply with paragraph 11(1) or 12(1) in relation to the arrangements (or the notifiable proposal for them) but would be subject to the reference number information requirement if a reference number had been allocated to the arrangements.

(2) For the purposes of this paragraph “the reference number information requirement” is the requirement under paragraph 23(2) to provide to the client prescribed information relating to the reference number allocated to the notifiable arrangements.

(3) The promoter must, within the prescribed period after the end of the relevant period, provide HMRC with prescribed information in relation to the client.

(4) In sub-paragraph (3) “the relevant period” means such period (during which the promoter is or would be subject to the reference number information requirement) as is prescribed.

(5) The promoter need not comply with sub-paragraph (3) in relation to any notifiable arrangements at any time after HMRC have given notice under paragraph 23(6) in relation to the arrangements.

Enquiry following disclosure of client details

28 (1) This paragraph applies where—

(a) a person who is a promoter in relation to notifiable arrangements has provided HMRC with information in relation to a person (“the client”) under paragraph 27(3) (duty to provide client details), and

(b) HMRC suspect that a person other than the client is or is likely to be a party to the arrangements.

(2) HMRC may by written notice require the promoter to provide prescribed information in relation to any person other than the client who the promoter might reasonably be expected to know is or is likely to be a party to the arrangements.

(3) The promoter must comply with a requirement under or by virtue of sub-paragraph (2) within—

(a) the relevant period, or

(b) such longer period as HMRC may direct.

(4) In sub-paragraph (3) “the relevant period” is the period of 11 days beginning with the day on which the promoter receives the notice under sub-paragraph (2).

Pre-disclosure enquiry

29 (1) Where HMRC suspect that a person (P) is the promoter or introducer of a proposal, or the promoter of arrangements, which may be notifiable, they may by written notice require P to state—

(a) whether in P’s opinion the proposal or arrangements are notifiable by P, and

(b) if not, the reasons for P’s opinion.

(2) The notice must specify the proposal or arrangements to which it relates.

(3) For the purposes of sub-paragraph (1)(b)—

(a) it is not sufficient to refer to the fact that a lawyer or other professional has given an opinion,

(b) the reasons must show, by reference to this Part of this Schedule and regulations under it, why P thinks the proposal or arrangements are not notifiable by P, and

(c) in particular, if P asserts that the arrangements do not fall within any description prescribed under paragraph 3(1)(a), the reasons must provide sufficient information to enable HMRC to confirm the assertion.

(4) P must comply with a requirement under or by virtue of sub-paragraph (1) within—

(a) the relevant period, or

(b) such longer period as HMRC may direct.

(5) In sub-paragraph (4) “the relevant period” is the period of 11 days beginning with the day on which the notice under sub-paragraph (1) is issued.

Reasons for non-disclosure: supporting information

30 (1) Where HMRC receive from a person (P) a statement of reasons why a proposal or arrangements are not notifiable by P, HMRC may apply to the tribunal for an order requiring P to provide specified information or documents in support of the reasons.

(2) P must comply with a requirement under or by virtue of sub-paragraph (1) within—

(a) the relevant period, or

(b) such longer period as HMRC may direct.

(3) In sub-paragraph (2) “the relevant period” is the period of 15 days beginning with the day on which the order concerned is made.

(4) The power under sub-paragraph (1)—

(a) may be exercised more than once, and

(b) applies whether or not the statement of reasons was received under paragraph 29(1)(b).

Provision of information to HMRC by introducers

31 (1) This paragraph applies where HMRC suspect—

(a) that a person (P) is an introducer in relation to a proposal, and

(b) that the proposal may be notifiable.

(2) HMRC may by written notice require P to provide HMRC with one or both of the following—

(a) prescribed information in relation to each person who has provided P with any information relating to the proposal,

(b) prescribed information in relation to each person with whom P has made a marketing contact in relation to the proposal.

(3) A notice must specify the proposal to which it relates.

(4) P must comply with a requirement under or sub-paragraph(2) within—

(a) the relevant period, or

(b) such longer period as HMRC may direct.

(5) In sub-paragraph (4) “the relevant period” is the period of 11 days beginning with the day on which the notice under sub-paragraph (2) is given.

Legal professional privilege

32 (1) Nothing in this Part of this Schedule requires any person to disclose to HMRC any privileged information.

(2) In this Part of this Schedule “privileged information” means information with respect to which a claim to legal professional privilege, or, in Scotland, to confidentiality of communications, could be maintained in legal proceedings.

Information

33 (1) This paragraph applies where a person is required to provide information under paragraph 23(2) or 24(3).

(2) HMRC may specify additional information which must be provided by that person to the recipients under paragraph 23(2) or 24(3) at the same time as the information referred to in sub-paragraph (1).

(3) HMRC may specify the form and manner in which the additional information is to be provided.

(4) For the purposes of this paragraph “additional information” means information supplied by HMRC which relates to notifiable proposals or notifiable arrangements in general.

34 (1) HMRC may specify the form and manner in which information required to be provided by or under any of the information provisions must be provided if the provision is to be complied with.

(2) The “information provisions” are paragraphs 11(1), 12(1), 17(2), 18(2), 19(2), 21(3), 23(2), 24(3), 26(1) and (3), 27(3), 28(2), 29(1), 31(2) and 33(2).

35 No duty of confidentiality or other restriction on disclosure (however imposed) prevents the voluntary disclosure by any person to HMRC of information or documents which the person has reasonable grounds for suspecting will assist HMRC in determining whether there has been a breach of any requirement imposed by or under this Part of this Schedule.

36 (1) HMRC may publish information about—

(a) any notifiable arrangements, or proposed notifiable arrangements, to which a reference number is allocated under paragraph 22;

(b) any person who is a promoter in relation to the notifiable arrangements or, in the case of proposed notifiable arrangements, the notifiable proposal.

(2) The information that may be published is (subject to sub-paragraph (4))—

(a) any information relating to arrangements within sub-paragraph (1)(a), or a person within sub-paragraph (1)(b), that is prescribed information for the purposes of paragraph 11, 12, 17 or 18;

(b) any ruling of a court or tribunal relating to any such arrangements or person (in that person‘s capacity as a promoter in relation to a notifiable proposal or arrangements);

(c) the number of persons in any period who enter into transactions forming part of notifiable arrangements within sub-paragraph (1)(a);

(d) any other information that HMRC considers it appropriate to publish for the purpose of identifying arrangements within sub-paragraph (1)(a) or a person within sub-paragraph (1)(b).

(3) The information may be published in any manner that HMRC considers appropriate.

(4) No information may be published under this paragraph that identifies a person who enters into a transaction forming part of notifiable arrangements within sub-paragraph (1)(a).

(5) But where a person who is a promoter within sub-paragraph (1)(b) is also a person mentioned in sub-paragraph (4), nothing in sub-paragraph (4) is to be taken as preventing the publication under this paragraph of information so far as relating to the person‘s activities as a promoter.

(6) Before publishing any information under this paragraph that identifies a person as a promoter within sub-paragraph (1)(b), HMRC must—

(a) inform the person that they are considering doing so, and

(b) give the person reasonable opportunity to make representations about whether it should be published.

37 (1) This paragraph applies if—

(a) information about notifiable arrangements, or proposed notifiable arrangements, is published under paragraph 36,

(b) at any time after the information is published, a ruling of a court or tribunal is made in relation to tax arrangements, and

(c) HMRC is of the opinion that the ruling is relevant to the arrangements mentioned in paragraph (a)

(2) A ruling is “relevant” to the arrangements if—

(a) the principles laid down, or reasoning given, in the ruling would, if applied to the arrangements, allow the purported advantage arising from the arrangements in relation to tax, and

(b) the ruling is final.

(3) HMRC must publish information about the ruling.

(4) The information must be published in the same manner as HMRC published the information mentioned in sub-paragraph (1)(a) (and may also be published in any other manner that HMRC considers appropriate).

(5) A ruling is “final” if it is—

(a) a ruling of the Supreme Court, or

(b) a ruling of any other court or tribunal in circumstances where—

(i) no appeal may be made against the ruling,

(ii) if an appeal may be made against the ruling with permission, the time limit for applications has expired and either no application has been made or permission has been refused,

(iii) if such permission to appeal against the ruling has been granted or is not required, no appeal has been made within the time limit for appeals, or

(iv) if an appeal was made, it was abandoned or otherwise disposed of before it was determined by the court or tribunal to which it was addressed.

(6) Where a ruling is final by virtue of sub-paragraph (ii), (iii) or (iv) of sub-paragraph (5)(b), the ruling is to be treated as made at the time when the sub-paragraph in question is first satisfied.

(7) In this paragraph “tax arrangements” means arrangements in respect of which it would be reasonable to conclude (having regard to all the circumstances) that the main purpose, or one of the main purposes, was the obtaining of a tax advantage.

Power to vary certain relevant periods

38 The Commissioners may by regulations amend this Part of this Schedule with a view to altering the definition of “the relevant period” for the purposes of—

• paragraph 5(6)

• paragraph 11(1)

• paragraph 12(1)

• paragraph 16(5)

• paragraph 17(2)

• paragraph 24(3)

• paragraph 25(2)

• paragraph 27(3)

• paragraph 28(3)

• paragraph 29(4)

• paragraph 30(2))

• paragraph 31(4).