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Procedure.Tax
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G9: Excise duty assessments
General power to assess
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"(1) Subject to subsection (4) below, where it appears to the Commissioners—
(a) that any person is a person from whom any amount has become due in respect of any duty of excise; and
(b) that there has been a default falling within subsection (2) below,
the Commissioners may assess the amount of duty due from that person to the best of their judgement and notify that amount to that person or his representative." (FA 1994, s.12(1))
"(1A) Subject to subsection (4) below, where it appears to the Commissioners—
(a) that any person is a person from whom any amount has become due in respect of any duty of excise; and
(b) that the amount due can be ascertained by the Commissioners,
the Commissioners may assess the amount of duty due from that person and notify that amount to that person or his representative." (FA 1994, s.12(1A))
Specified defaults
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"(2) The defaults falling within this subsection are—
(a) any failure by any person to make, keep, preserve or produce as required or directed by or under any enactment any returns, accounts, books, records or other documents;
(b) any omission from or inaccuracy in any returns, accounts, books, records or other documents which any person is required or directed by or under any enactment to make, keep, preserve or produce;
(c) any failure by any person to take or permit to be taken any step which he is required under Schedule … 3 to the Betting and Gaming Duties Act 1981 or Schedule 1 to the Finance Act 1997 or Part 1 of Schedule 24 to the Finance Act 2012 or Part 3 of the Finance Act 2014 to take or to permit to be taken;
(ca) any failure by any person to comply with a requirement to which he is made subject by or under Schedule 2A to the Alcoholic Liquor Duties Act 1979 (duty stamps);
(d) any unreasonable delay in performing any obligation the failure to perform which would be a default falling within this subsection.
(2A) In subsection (2)(a) and (b) above “enactment” includes directly applicable Community provision." (FA 1994, s.12)
Representative
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(8) In this section “representative”, in relation to a person appearing to the Commissioners to be a person from whom any amount has become due in respect of any duty of excise, means his personal representative, trustee in bankruptcy or interim or permanent trustee any receiver or liquidator appointed in relation to that person or any of his property or any other person acting in a representative capacity in relation to that person.
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Time limit
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"(4) An assessment of the amount of any duty of excise due from any person shall not be made under this section at any time after whichever is the earlier of the following times, that is to say—
(a) subject to subsection (5) below, the end of the period of 4 years beginning with the time when his liability to the duty arose; and
(b) the end of the period of one year beginning with the day on which evidence of facts, sufficient in the opinion of the Commissioners to justify the making of the assessment, comes to their knowledge;
but this subsection shall be without prejudice, where further evidence comes to the knowledge of the Commissioners at any time after the making of an assessment under this section, to the making of a further assessment within the period applicable by virtue of this subsection in relation to that further assessment." (FA 1994, s.12(4))
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“The time limit for HMRC to make an assessment is the earlier of three years from the time the liability to pay the duty arose or one year from the date on which evidence of the facts sufficient in HMRC’s opinion to justify the making of the assessment came to their knowledge.” (TDG (UK) Limited v. HMRC [2015] UKUT 167 (TC), §12, Rose J).
See further G10: Time limits (indirect tax)
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- Time when liability arose
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"(6) The reference in subsection (4) above to the time when a person's liability to a duty of excise arose are references—
(a) in the case of a duty of excise on goods, to the excise duty point; and
(b) in any other case, to the time when the duty was charged." (FA 1994, s.12)
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- Deliberate behaviour of tax: 20 years
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"(5) Subsection (4) above shall have effect as if the reference in paragraph (a) to 4 years were a reference to twenty years in any case falling within subsection (5A)(a) or (b).
(5A The cases are—
(a) a case involving a loss of duty of excise brought about deliberately by the person assessed (P) or by another person acting on P's behalf, and
(b) a case in which P has participated in a transaction knowing that it was part of arrangements of any kind (whether or not legally enforceable) intended to bring about a loss of duty of excise." (FA 1994, s.12)
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Deliberate inaccuracy in document or deliberate failure to comply with obligation
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"(6A) The reference in subsection (5A) to a loss of duty of excise brought about deliberately by P or another person includes a loss that arises as a result of—
(a) a deliberate inaccuracy in a document given to Her Majesty's Revenue and Customs by that person, or
(b) a deliberate failure by that person to comply with an obligation specified in the Table in paragraph 1 of Schedule 41 to the Finance Act 2008 with respect to that duty of excise." (FA 1994, s.12)
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Assessment to recover relief that was not due
"(1) This subsection applies where any relevant excise duty relief other than an excepted relief—
(a) has been given but ought not to have been given, or
(b) would not have been given had the facts been known or been as they later turn out to be.
(2) Where subsection (1) above applies, the Commissioners may assess the amount of the relief given as being excise duty due from the liable person and notify him or his representative accordingly." (FA 1994, s.12A)
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Liable person
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"(3) In section 12A above “the liable person” means—
(a) in the case of excise duty which has been remitted or repaid under section 130 of the Management Act on the basis that goods were lost or destroyed while in a warehouse, the proprietor of the goods or the occupier of the warehouse;
(b) in the case of a rebate which has been allowed on any oil under section 11 of the Hydrocarbon Oil Duties Act 1979, the person to whom the rebate was allowed or the occupier of any warehouse from which the oil was delivered for home use;
(c) in the case of a rebate allowed on any petrol under section 13A of that Act, the person to whom the rebate was allowed or the occupier of any warehouse from which the petrol was delivered for home use;
(d) in any other case, the person mentioned in subsection (1) above to whom the relief in question was given." (FA 1994, s.12B)
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Representative
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""representative”, in relation to any person from whom the Commissioners assess an amount as being excise duty due, means his personal representative, trustee in bankruptcy or interim or permanent trustee, any receiver or liquidator appointed in relation to him or any of his property or any other person acting in a representative capacity in relation to him." (FA 1994, s.12B)
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- Relevant excise duty relief
"(1) For the purposes of section 12A above and this section, relevant excise duty relief has been given if (and only if)—
(a) an amount of excise duty which a person is liable to pay has been remitted or payment of an amount of excise duty which a person is liable to pay has been waived;
(b) an amount of excise duty has been repaid to a person;
(c) an amount by way of drawback of excise duty has been paid to a person;
(d) an allowance of excise duty in any amount has been made to a person;
(e) an amount by way of rebate has been allowed to a person;
(f) the liability of a person to repay an amount paid by way of drawback of excise duty has been waived;
(g) an amount has been paid to a person under section 20(3) of the Hydrocarbon Oil Duties Act 1979 (payments in respect of contaminated or accidentally mixed oil); or
(h) an amount of relief has been allowed to a person by virtue of section 20AA or 20AB of that Act (power to allow reliefs), or in accordance with paragraph 10 of Schedule 3 to that Act (power to make regulations for the purpose of relieving from excise duty oil intended for exportation or shipment as stores);
and the amount of the relief is the amount mentioned in relation to the relief in this subsection." (FA 1994, s.12B)
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- Excepted relief
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"“excepted relief” means any relief which is given by the making of a repayment on a claim made under section 137A of the Management Act;" (FA 1994, s.12B)
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Time limit: assessment for relief not due
"(4) No assessment under any of the provisions referred to in subsection (3) above, or under section 61 or 167 of the Management Act, shall be made at any time after whichever is the earlier of the following times, that is to say—
(a) subject to subsection (6) below, the end of the period of 4 years beginning with the relevant time; and
(b) the end of the period of one year beginning with the day on which evidence of facts, sufficient in the opinion of the Commissioners to justify the making of the assessment, comes to their knowledge." (FA 1994, s.12A)
Power to make supplemental assessment
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"(5) Subsection (4) above shall be without prejudice, where further evidence comes to the knowledge of the Commissioners at any time after the making the assessment concerned, to the making of a further assessment within the period applicable by virtue of that subsection in relation to that further assessment." (FA 1994, s.12A)
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- Relevant time
"(2) For the purposes of section 12A above the relevant time is—
(a) in the case of an assessment under section 61 of the Management Act, the time when the ship or aircraft in question returned to a place within the United Kingdom;
(b) in the case of an assessment under section 94 of that Act, the time at which the goods in question were warehoused;
(c) in the case of an assessment under that section as it has effect by virtue of section 95 of that Act, the time when the goods in question were lawfully taken from the warehouse;
(d) in the case of an assessment under section 96 of that Act, the time when the goods in question were moved by pipe-line or notified as goods to be moved by pipe-line;
(e) in the case of an assessment under section 167 of that Act—
(i) if the assessment relates to unpaid duty, the time when the duty became payable or, if later, the time when the document in question was delivered or the statement in question was made; and
(ii) if the assessment relates to an overpayment, the time when the overpayment was made;
(ea) in the case of an assessment under section 8 or 10 of the Alcoholic Liquor Duties Act 1979, the time of delivery from warehouse;
(eb) in the case of an assessment under section 11 of that Act, the time when the direction was made;
(ec) in the case of an assessment under section 36G of that Act, the time at which the requirement to pay the duty took effect (which time, in a case where there was an excise duty point for the beer fixed under section 1 of the Finance (No 2) Act 1992, is that excise duty point);
(f) in the case of an assessment under section 10, 13, 13ZB, 13AB, 13AD, 14, 14F or 23 of the Hydrocarbon Oil Duties Act 1979, the time of the action which gave rise to the power to assess;
(g) in the case of an assessment under section 24(4A) or (4B) of that Act, the time when the rebate was allowed or the oil was delivered without payment of duty (as the case may be);
(ga) in the case of an assessment under section 8 of the Tobacco Products Duty Act 1979, the time when the Commissioners are satisfied of a failure to prove as mentioned in subsection (2)(a) or (b) of that section;
(gb) in the case of an assessment under section 2 of the Finance (No 2) Act 1992, the time when the sums were paid or credited in respect of the drawback;
(h) in the case of an assessment under section 12A(2) above, the time when the relevant excise duty relief in question was given." (FA 1994 s.12B)
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- Deliberate behaviour
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"(6) Subsection (4) above shall have effect as if the reference in paragraph (a) to 4 years were a reference to twenty years in any case falling within section 12(5A)(a) or (b).
(7) For the purposes of subsection (6), a reference in section 12(5A) to a loss of duty of excise includes a loss caused by giving relief, allowing a rebate, conferring an entitlement to drawback or repaying an amount that ought not to have been given, allowed, conferred or repaid." (FA 1994, s.12A)
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Assessment deemed to be an amount due
"(3) Where an amount has been assessed as due from any person and notified in accordance with this section, it shall, subject to any appeal under section 16 below, be deemed to be an amount of the duty in question due from that person and may be recovered accordingly, unless, or except to the extent that, the assessment has subsequently been withdrawn or reduced." (FA 1994, s.12(3))
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"(3) Where an amount has been assessed as due from any person under—
(a) subsection (2) above,
(b) section 94 or 96 of the Management Act, …
(bb) section 8, 10 ,11 or 36G of the Alcoholic Liquor Duties Act 1979,
(c) section 10, 13, 13ZB, 13AB,13AD, 14, 14F, 23 or 24 of the Hydrocarbon Oil Duties Act 1979,
(d) section 8 of the Tobacco Products Duty Act 1979, or
(e) section 2 of the Finance (No 2) Act 1992,
and notice has been given accordingly, that amount shall, subject to any appeal under section 16 below, be deemed to be an amount of excise duty due from that person and may be recovered accordingly, unless, or except to the extent that, the assessment has subsequently been withdrawn or reduced." (FA 1994, s.12A(3))
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