SCHEDULES
C1SCHEDULE 18Serial tax avoidance
PART 2Entry into the regime and basic concepts
F1Condition F
Sch. 18 para. 16A and cross-heading inserted (16.11.2017 for specified purposes, 1.1.2018 in so far as not already in force) by Finance (No. 2) Act 2017 (c. 32), s. 66(4), Sch. 17 para. 55(10)
16A
1
Condition F is that—
a
the arrangements are indirect tax arrangements,
b
P has relied on the arrangements (see sub-paragraph (2),
c
the arrangements have been counteracted, and
d
the counteraction is final.
2
For the purpose of sub-paragraph (1) P relies on the arrangements if—
a
P makes a return, claim, declaration or application for approval on the basis that a relevant tax advantage arises, or
b
P fails to discharge a relevant obligation (“the disputed obligation”) and there is reason to believe that P’s failure to discharge that obligation is connected with the arrangements.
3
For the purposes of sub-paragraph (2) “relevant tax advantage” means a tax advantage which the arrangements might be expected to enable P to obtain.
4
For the purposes of sub-paragraph (2) an obligation is a relevant obligation if the arrangements might be expected to have the result that the obligation does not arise.
5
For the purposes of this paragraph the arrangements are “counteracted” if—
a
adjustments, other than taxpayer emendations, are made in respect of P’s tax position —
i
on the basis that the whole or part of the relevant tax advantage mentioned in sub-paragraph (2)(a) does not arise, or
ii
on the basis that the disputed obligation does (or did) arise, or
b
an assessment to tax is made, or any other action is taken by HMRC, on the basis mentioned in paragraph (a)(i) or (ii) (otherwise than by way of an adjustment).
6
For the purposes of this paragraph a “counteraction” is final when the adjustments, assessment or action in question, and any amounts arising from the adjustments, assessment or action, can no longer be varied, on appeal or otherwise.
7
For the purposes of sub-paragraph (1) the time at which it falls to be determined whether or not the arrangements are disclosable indirect tax arrangements is when the counteraction becomes final.
8
The following are “taxpayer emendations” for the purposes of sub-paragraph (5)—
a
an adjustment made by P at a time when P had no reason to believe that HMRC had begun or were about to begin enquiries into P’s affairs in relation to the tax in question;
b
an adjustment made by HMRC with respect to P’s tax position (whether by way of an assessment or otherwise) as a result of a disclosure by P which meets the conditions in sub-paragraph (9).
9
The conditions are that the disclosure—
a
is a full and explicit disclosure of an inaccuracy in a return or other document or of a failure to comply with an obligation, and
b
was made at a time when P had no reason to believe that HMRC were about to begin enquiries into P’s affairs in relation to the tax in question.
Sch. 18 modified (17.12.2020 for specified purposes, 31.12.2020 in so far as not already in force) by 1994 c. 23, Sch. 9ZA para. 79 (as inserted by Taxation (Post-transition Period) Act 2020 (c. 26), s. 11(1)(e), Sch. 2 para. 2 (with s. 3(4), Sch. 2 para. 7(7)-(10)); S.I. 2020/1642, reg. 9)