Finance Act 2021

131 Temporary approvals etc pending review or appeal

(1) In Chapter 2 of Part 1 of FA 1994 (customs and excise: appeals and penalties), after section 16 insert—

“16A Temporary approvals etc pending review or appeal: eligibility

(1) Section 16B applies where HMRC notify P of an approval decision and—

(a) HMRC are required to review the decision under section 15C or 15E, or

(b) the decision, or the decision on a review under that section, has been appealed to an appeal tribunal under section 16.

(2) An approval decision is a decision as to whether or not, and in which respects, any person or place (as the case may be) is to be or is to continue to be—

(a) approved under section 92 of CEMA 1979 (warehousekeepers and owners of warehouses goods regime: approval of excise warehouses);

(b) approved and registered under section 100G of CEMA 1979 by virtue of—

(i) regulation 3 of the Warehousekeepers and Owners of Warehoused Goods Regulations 1999 (S.I. 1999/1278) (authorized warehousekeepers);

(ii) regulation 5 of those Regulations (registered owners);

(iii) regulation 6 of those Regulations (duty representatives);

(iv) regulation 4 of the Hydrocarbon Oil (Registered Dealers in Controlled Oil) Regulations 2002 (S.I. 2002/3057) (registered dealers in controlled oil);

(c) approved and registered to carry on a controlled activity under section 88C ALDA 1979 (alcohol wholesalers registration scheme);

(d) approved to carry on a controlled activity under section 8L of TPDA 1979 (raw tobacco scheme);

(e) approved and registered under section 49 F(No.2)A 2017 (fulfilment houses due diligence scheme);

(f) licensed to carry out a regulated activity under the Tobacco Products Manufacturing Machinery (Licensing Scheme) Regulations 2018 (S.I. 2018/75) (tobacco machinery scheme).

(3) The Commissioners may by regulations made by statutory instrument amend subsection (2) so as to add, vary or remove a paragraph of that subsection.

(4) A statutory instrument containing regulations under subsection (3) is subject to annulment in pursuance of a resolution of the House of Commons.

16B Temporary approvals etc pending review or appeal: process

(1) On an application by P, HMRC may grant temporary approval if they are satisfied that—

(a) P has demonstrated that if temporary approval were not granted the review or appeal in respect of the approval decision, or the appeal from a decision on review of that decision, would be rendered nugatory by virtue of P being unable to continue as a going concern or otherwise, and

(b) it is appropriate in all the circumstances to grant temporary approval (despite the approval decision).

(2) In determining whether it would be appropriate to grant temporary approval, HMRC must have regard to—

(a) the prospect of the review or appeal in respect of the approval decision, or appeal from a decision on review of that decision, being determined in P’s favour;

(b) any alternative steps available to, and taken by, P to protect P’s position pending the final determination of the review or appeal;

(c) whether P has acted expeditiously in requiring the review or in bringing and progressing the appeal.

(3) Subject to any provision made in regulations under section 16C, temporary approval has effect as an approval, registration or licence (as the case may be) under the relevant provision listed in section 16A(2) that—

(a) commences on the day on which the application for temporary approval is granted,

(b) expires on the day determined in accordance with subsection (4), and

(c) is subject to any conditions or restrictions imposed on the temporary approval.

(4) The day on which a temporary approval expires is—

(a) in a case where the approval decision is cancelled on a review, the day on which it is cancelled;

(b) in a case where the approval decision is upheld on a review, the last day on which an appeal could be brought against that decision (ignoring any possibility of an appeal brought out of time with permission), unless paragraph (4)(c) applies;

(c) in a case where an appeal (other than an appeal brought out of time with permission) is brought in respect of an approval decision or a decision on a review of that decision, the day on which the appeal is finally determined.

(5) HMRC may revoke a temporary approval, or vary the conditions or restrictions to which it is subject, if they are satisfied that a change in circumstances justifies doing so.

(6) HMRC may by notice published in such form as HMRC considers appropriate make provision about the timing, form, content and determination of applications under subsection (1).

(7) Subsection (8) applies if HMRC—

(a) refuse an application under subsection (1),

(b) grant an application under that subsection subject to conditions or restrictions,

(c) vary the conditions or restrictions to which a temporary approval is subject, or

(d) revoke a temporary approval, and

the approval decision, or the decision on a review of that decision under section 15C or 15E, has been appealed to an appeal tribunal under section 16.

(8) If, on an application by P, the appeal tribunal decides that HMRC should not have (as the case may be)—

(a) refused the application,

(b) granted the application subject to particular conditions or restrictions,

(c) varied the conditions or restrictions to which the temporary approval is subject, or

(d) revoked the temporary approval,

the appeal tribunal may order HMRC to make any decision that it would have been open to HMRC to make under this section.

(9) If the appeal tribunal makes an order under subsection (8), HMRC or P may apply to the appeal tribunal to vary or revoke that order.

(10) HMRC must notify P of any decision to grant or revoke a temporary approval or to vary the conditions or restrictions to which such approval is subject.

16C Temporary approvals etc pending review or appeal: modifications

(1) The Commissioners may by regulations make such provision as they consider appropriate in consequence of provision made in sections 16A and 16B (including by virtue of regulations under section 16A(3)).

(2) Regulations under this section may amend, repeal, revoke or otherwise modify any enactment.

(3) Regulations under this section are to be made by statutory instrument.

(4) A statutory instrument containing regulations under this section which amend, repeal or modify the application of an Act of Parliament must be laid before the House of Commons after being made and, unless approved by that House before the end of the period of 28 days beginning with the date on which the instrument is made, ceases to have effect at the end of that period.

(5) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of the House of Commons.

(6) The fact that a statutory instrument ceases to have effect as a result of subsection (4) does not affect—

(a) anything previously done under the instrument, or

(b) the making of a new instrument.

(7) In calculating the period of 28 days mentioned in subsection (4), no account is to be taken of any time—

(a) during which Parliament is dissolved or prorogued, or

(b) during which the House of Commons is adjourned for more than four days.

(8) In this section “enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978.”

(2) In section 16A(1) of FA 1994 (inserted by subsection (1) of this section), the reference to HMRC notifying P of an approval decision includes a reference to HMRC having notified P of such a decision before the coming into force of this section.

(3) This section comes into force on such day as the Commissioners may by regulations made by statutory instrument appoint.