Finance Act 2021

Section 62

SCHEDULE 11 Plastic packaging tax: reviews and appeals

PART 1 Appealable decisions etc

Appealable decisions etc

1 (1) A person may appeal against a decision of the Commissioners or an officer of HMRC in respect of any of the following matters—

(a) whether or not a person is liable to pay an amount of plastic packaging tax;

(b) the amount of plastic packaging tax payable by a person;

(c) the registration, or cancellation of registration, of a person under this Part for the purposes of plastic packaging tax;

(d) the issuing of a secondary liability and assessment notice under paragraph 2 of Schedule 9;

(e) a refusal to revoke a secondary liability and assessment notice under paragraph 5 of Schedule 9;

(f) the issuing of a joint and several liability notice under paragraph 10 of Schedule 9;

(g) a refusal to revoke a joint and several liability notice under paragraph 13 or 14 of Schedule 9;

(h) a decision about the date on which the revocation of a joint and several liability notice is to have effect in accordance with a notification given under paragraph 13 of Schedule 9;

(i) a person’s entitlement to a tax credit, the withdrawal of a tax credit, the amount of a tax credit or the period for which a tax credit is to be brought into account under regulations under section 53;

(j) a decision to require any security under regulations under section 65 or as to its amount;

(k) whether the Commissioners are liable to repay an amount to a person under paragraph 7(2) of Schedule 10 or the amount of such a repayment;

(l) whether or not the repayment of an amount under that paragraph is excessive (see paragraph 11 of that Schedule);

(m) the amount that a person is liable to pay the Commissioners in pursuance of an obligation imposed by regulations under paragraph 10(3)(b), (c) and (e) of that Schedule;

(n) whether or not a person is liable to a penalty under this Part or in respect of this Part or the amount of such a penalty;

(o) the period by reference to which payments of plastic packaging tax are to be made.

(2) A person may also appeal against the following determinations and directions of the Commissioners or an officer of HMRC—

(a) a determination that a packaging component—

(i) is a plastic packaging component;

(ii) is chargeable;

(b) a direction under section 63(4);

(c) a determination or direction by the Commissioners under regulations under section 69—

(i) that a person must appoint a tax representative;

(ii) not to approve the appointment of a tax representative;

(iii) withdrawing their approval of a tax representative;

(iv) requiring the replacement of a tax representative;

(d) the giving of a direction or supplementary direction by the Commissioners under section 72(2) or (4);

(e) a determination in respect of an application under regulations under section 74 or 75;

(f) a direction given to the person under paragraph 2(4)(b) or 10(4)(b) of Schedule 9;

(g) a determination on an application under Schedule 13 for group treatment or a determination by the Commissioners to terminate group treatment under that Schedule.

2 In Parts 2 and 3 of this Schedule, references to a decision include references to a determination and a direction.

PART 2 Reviews

Offer of review

3 (1) HMRC must offer a person (P) a review of a decision that has been notified to P if an appeal in respect of the decision may be brought under paragraph 1.

(2) The offer of the review must be made by notice given to P at the same time as the decision is notified to P.

(3) This paragraph does not apply to the notification of the conclusions of a review.

Right to require review

4 (1) Any person (other than P) who has the right of appeal under paragraph 1 against a decision may require HMRC to review that decision if the person has not appealed to the appeal tribunal under that paragraph.

(2) A notification that such a person requires a review must be made within the period of 30 days beginning with the day on which that person became aware of the decision.

Review by HMRC

5 (1) HMRC must review a decision if—

(a) they have offered a review of the decision under paragraph 3, and

(b) P notifies HMRC accepting the offer within the period of 30 days beginning with the date of the document notifying P of the decision.

(2) But P may not notify acceptance of the offer if P has already appealed to the appeal tribunal under paragraph 1.

(3) HMRC must also review a decision if a person other than P notifies them under paragraph 4.

(4) HMRC may not review a decision if P, or another person, has appealed to the appeal tribunal under paragraph 1 in respect of the decision.

Extensions of time for requiring review

6 (1) If under paragraph 3 HMRC have offered P a review of a decision, HMRC may within the period for requiring a review notify P that that period is extended.

(2) If under paragraph 4 another person may require HMRC to review a matter, HMRC may within the period for requiring a review notify the other person that that period is extended.

(3) If notice is given the period for requiring a review is extended to the end of the period of 30 days beginning with—

(a) the date of the notice, or

(b) any other date set out in the notice or a further notice.

(4) In this paragraph, “period for requiring a review” means—

(a) the period of 30 days referred to in—

(i) paragraph 5(1)(b)(in a case falling within sub-paragraph (1)), or

(ii) paragraph 4(2) (in a case falling within sub-paragraph (2)), or

(b) if notice has been given under sub-paragraph (1) or (2), that period as extended (or as most recently extended) in accordance with sub-paragraph (3).

Review out of time

7 (1) This paragraph applies if—

(a) HMRC have offered a review of a decision under paragraph 3 and P does not accept the offer within the time allowed under paragraph 5(1)(b) or 6(3), or

(b) a person who requires a review under paragraph 4 does not notify HMRC within the time allowed under paragraph 4(2) or 6(3).

(2) HMRC must review the decision under paragraph 5 if—

(a) after the time allowed, P, or the other person, notifies HMRC in writing requesting a review out of time,

(b) HMRC are satisfied that P, or the other person, had a reasonable excuse for not accepting the offer or requiring a review within the time allowed, and

(c) HMRC are satisfied that P, or the other person, made the request without unreasonable delay after the excuse had ceased to apply.

(3) But HMRC shall not review a decision if P, or another person, has appealed to the appeal tribunal under paragraph 1 in respect of the decision.

Nature of review etc

8 (1) This paragraph applies if HMRC are required to undertake a review under paragraph 5 or 7.

(2) The nature and extent of the review are to be such as appear appropriate to HMRC in the circumstances.

(3) For the purposes of sub-paragraph (2), HMRC must, in particular, have regard to steps taken before the beginning of the review—

(a) by HMRC in reaching the decision, and

(b) by any person in seeking to resolve disagreement about the decision.

(4) The review must take account of any representations made by P, or the other person, at a stage which gives HMRC a reasonable opportunity to consider them.

(5) The review may conclude that the decision is to be—

(a) upheld,

(b) varied, or

(c) cancelled.

(6) HMRC must give P, or the other person, notice of the conclusions of the review and their reasoning within—

(a) the period of 45 days beginning with the relevant date, or

(b) such other period as HMRC and P, or HMRC and the other person, may agree.

(7) In sub-paragraph (6), “the relevant date” means—

(a) in a case falling within paragraph 3, the date HMRC received P’s notification accepting the offer of a review,

(b) in a case falling within paragraph 4, the date HMRC received notification from another person requiring a review, or

(c) in a case falling within paragraph 7, the date on which HMRC decided to undertake the review.

(8) Where HMRC are required to undertake a review but do not give notice of the conclusions within the period specified in sub-paragraph (6), the review is to be treated as having concluded that the decision is upheld.

(9) If sub-paragraph (8) applies, HMRC must notify P, or the other person, of the conclusion which the review is treated as having reached.

PART 3 Appeals

“Appeal tribunal”

9 In this Schedule “appeal tribunal” means the First-tier Tribunal or, where determined by or under Tribunal Procedure Rules, the Upper Tribunal.

Bringing of appeals

10 (1) An appeal under paragraph 1 is to be made to the appeal tribunal before—

(a) the end of the period of 30 days beginning with—

(i) in a case where P is the appellant, the date of the document notifying P of the decision to which the appeal relates, or

(ii) in a case where a person other than P is the appellant, the day on which that person becomes aware of the decision, or

(b) if later, the end of the period for requiring a review (within the meaning of paragraph 6).

(2) But that is subject to sub-paragraphs (3) to (5).

(3) In a case where HMRC are required to undertake a review under paragraph 5—

(a) an appeal may not be made until the conclusion date, and

(b) any appeal is to be made within the period of 30 days beginning with that date.

(4) In a case where HMRC are requested to undertake a review under paragraph 7—

(a) an appeal may not be made to the appeal tribunal—

(i) unless HMRC have notified P, or the other person, as to whether or not a review will be undertaken, and

(ii) if HMRC have notified P, or the other person, that a review will be undertaken, until the conclusion date;

(b) any appeal where paragraph (a)(ii) applies is to be made within the period of 30 days beginning with the conclusion date;

(c) if HMRC have notified P, or the other person, that a review will not be undertaken, an appeal may be made only if the appeal tribunal gives permission to do so.

(5) In a case where paragraph 8(8) applies, an appeal may be made at any time from the end of the period specified in paragraph 8(6) to the date 30 days after the conclusion date.

(6) An appeal may be made after the end of any period specified in this paragraph if the appeal tribunal gives permission to do so.

(7) In this paragraph, “conclusion date” means the date of the document notifying the conclusions of the review.

Further provision about appeals

11 (1) An appeal relating to a decision that an amount is due from a person may not be considered by the appeal tribunal unless the amount which HMRC have determined to be due has been paid or deposited with HMRC.

(2) But sub-paragraph (1) does not apply if—

(a) HMRC are satisfied or, if HMRC are not satisfied but the appeal tribunal have decided, on the application of the appellant, that the requirement to pay or deposit the amount would cause the appellant to suffer hardship, and

(b) the appellant has paid or deposited such other amount (if any) by way of security as HMRC or, as the case may be, the appeal tribunal consider appropriate.

(3) Notwithstanding the provisions of sections 11 and 13 of the Tribunals, Courts and Enforcement Act 2007, the decision of the appeal tribunal as to the issue of hardship is final.

Determinations on appeal

12 (1) Where, on an appeal under paragraph 1—

(a) it is found that an assessment of the appellant is an assessment for an amount that is less than it ought to have been, and

(b) the appeal tribunal give a direction specifying the correct amount,

the assessment has effect as an assessment of the amount specified in the direction and (without prejudice to any power under this Schedule to reduce the amount of interest payable on the amount of an assessment) as if it were an assessment notified to the appellant in that amount at the same time as the original assessment.

(2) On an appeal under paragraph 1, the powers of the appeal tribunal in relation to any decision of the Commissioners includes a power, where the tribunal allow an appeal on the ground that the Commissioners could not reasonably have arrived at the decision, either—

(a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct, or

(b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a review or a further review of the original decision as appropriate.

(3) Where, on an appeal under paragraph 1, the appeal tribunal find that a liability to a penalty or to an amount of interest arises, the tribunal must not give any direction for the modification of the amount payable in respect of that liability except—

(a) in exercise of a power conferred on the tribunal by section 80(6) (penalties), or

(b) for the purpose of making the amount payable conform to the amount due in accordance with this Part.

(4) Sections 85 and 85B of the Value Added Tax Act 1994 (settling of appeals by agreement and payment of tax where there is a further appeal) have effect as if—

(a) the references to section 83 of that Act included references to paragraph 1 of this Schedule, and

(b) the references to value added tax included references to plastic packaging tax.