Finance (No. 2) Act 2017

PART 10 Publishing details of persons who have incurred penalties

Power to publish details

46 (1) The Commissioners may publish information about a person where—

(a) the person has incurred a penalty under paragraph 1,

(b) the penalty has become final, and

(c) 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, at the time when the penalty mentioned in sub-paragraph (1) becomes final, 50 or more other penalties which are reckonable penalties have been incurred by the person.

(3) The condition in this sub-paragraph is that—

(a) the amount of the penalty mentioned in sub-paragraph (1), or

(b) the total amount of that penalty and any other penalties incurred by that person which are reckonable penalties,

is more than £25,000.

(4) The information that may be published under this paragraph is—

(a) the person’s name (including any trading name, previous name or pseudonym),

(b) the person’s address (or registered office),

(c) the nature of any business carried on by the person,

(d) the total number of the penalties in question (that is, the penalty mentioned in sub-paragraph (1) and any penalties that are reckonable penalties in relation to that penalty),

(e) the total amount of the penalties in question, and

(f) any other information that the Commissioners consider it appropriate to publish in order to make clear the person’s identity.

(5) The information may be published in any way that the Commissioners consider appropriate.

(6) For the purposes of this Part of this Schedule a penalty becomes “final”—

(a) if the penalty has been assessed and paragraph (b) does not apply, at the time when the period for any appeal or further appeal relating to the penalty expires or, if later, when any appeal or final appeal relating to it is finally determined;

(b) if a contract settlement has been made in relation to the penalty, at the time when the contract is made;

and “contract settlement” here means a contract between the Commissioners and the person under which the Commissioners undertake not to assess the penalty or (if it has been assessed) not to take proceedings to recover it.

(7) “Reckonable penalty” has the meaning given by paragraph 47.

(8) This paragraph is subject to paragraphs 48 to 50.

47 (1) A penalty is a “reckonable penalty” for the purposes of paragraph 46 if—

(a) it is a penalty under paragraph 1 which becomes final at the same time as, or before, the penalty mentioned in paragraph 46(1),

(b) its entry date and the entry date of the penalty mentioned in paragraph 46(1) are not more than 12 months apart, and

(c) it is not a penalty which under paragraph 48(1) is to be disregarded.

(2) For the purposes of this paragraph the “entry date” of a penalty under paragraph 1 is the date (or, if more than one, the latest date) on which the arrangements concerned or any agreement or transaction forming part of those arrangements was entered into by the taxpayer.

(3) In sub-paragraph (2)—

• “the arrangements concerned” means the arrangements to which the penalty relates, and

• “the taxpayer” means the person whose defeat in respect of those arrangements resulted in the penalty being payable.

(4) For the purposes of this paragraph, the entry date of a penalty is not more than 12 months apart from the entry date of another penalty if—

(a) the entry dates of those penalties are the same, or

(b) the period beginning with whichever of the entry dates is the earlier and ending with whichever of the entry dates is the later is 12 months or less.

Restrictions on power

48 (1) In determining at any time whether or what information may be published in relation to a person under paragraph 46, the following penalties incurred by the person are to be disregarded—

(a) a penalty which has been reduced to nil or stayed;

(b) a penalty by reference to which information has previously been published under paragraph 46;

(c) a penalty where—

(i) the arrangements to which the penalty relates (“the arrangements concerned”) are related to other arrangements, and

(ii) the condition in sub-paragraph (3) is not met;

(d) a penalty that relates to arrangements which are related to arrangements that have already been dealt with (within the meaning given by sub-paragraph (4)).

(2) For the purposes of sub-paragraph (1)(c) and (d) arrangements are “related to” each other if they—

(a) implement the same proposal for tax arrangements, and

(b) are substantially the same as each other.

(3) The condition referred to in sub-paragraph (1)(c) is that HMRC reasonably believe that—

(a) defeats have been incurred in the case of all the arrangements that are related to the arrangements concerned (“the related arrangements”), and

(b) each penalty under paragraph 1 which relates to the arrangements concerned or to any of the related arrangements has become final.

(4) For the purposes of sub-paragraph (1)(d) arrangements have “already been dealt with” if information about the person has already been published under paragraph 46 by reference to a penalty that relates to those arrangements.

49 (1) Publication of information under paragraph 46 on the basis of a penalty or penalties incurred by a person may not take place after the relevant time.

(2) In this paragraph “the relevant time” means the end of 12 months beginning with the date on which the penalty became final or, where more than one penalty is involved, the latest date on which any of them became final.

(3) Sub-paragraph (1) is not to be taken to prevent the re-publishing, or continued publishing, after the relevant time of a set of information published under paragraph 46 before that time.

(4) Information published under paragraph 46 may not be re-published, or continue to be published, after the end of 12 months beginning with the date on which it was first published.

(5) Nothing in paragraph 48 applies in relation to determining whether to re-publish (or continue to publish) a set of information already published under paragraph 46.

50 Before publishing information under paragraph 46 the Commissioners must—

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

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

Power to amend

51 The Treasury may by regulations amend this Part of this Schedule so as to alter any of the following—

(a) the figure for the time being specified in paragraph 46(2);

(b) the sum for the time being specified in paragraph 46(3);

(c) any period for the time being specified in paragraph 47(1)(b) or (4).