“(3) The amendments made by this section are treated as always having been in force” 129. Whilst the wording of section 12D is only concerned with deeming invalid section 8 notices to be valid for the purposes of HMRC enquiries, Parliament requires the same consequences as if section 12D had always been in force. Accordingly for the purposes of Section 9A there is deemed always to have been a valid section 8 notice and so a return was made under section 8 prior to the notices of enquiry being issued under section 9A. It is necessarily implicit in section 12D that the section 9A notices are valid even though they were issued before12 February 2019 . 130. Accordingly, even if I am wrong on either argument 1 or 2 I would, on the basis of section 12D, find that the section 9A notices and the closure notices were valid. Enquiry Argument 4: The notice of enquiry for 2009-10 was sent to the wrong address The appellant’s arguments 131. The notice of enquiry issued by HMRC under section 9A TMA for tax year 2009-10 (but not 2010-11) was sent to the Dorset Address which, for the reasons set out in relation to argument 2, was not an address satisfying the conditions in section 115(2). Accordingly the section 9A notice was invalid. 132. That being the case the closure notice was also invalid. HMRC’s arguments 133. For the reasons set out in respect of argument 2, HMRC argued that the section 9A notice satisfied the obligation on HMRC to give the appellant notice, there being no requirement to comply with section 115(2) where actual notice had been given. 134. The appellant accepted that he had been notified of the enquiry. In his witness statement the appellant said; “I was subsequently informed by an HMRC letter of27 June 2011 that my 2010 Tax return would be inquired into” 135. Accordingly the section 9A notice was valid. Discussion 136. HMRC purported to issue notices of enquiry under section 9A TMA. Section 115 applies to such notices as it does to section 8 notices and neither party suggested any difference arose between the two. 137. Accordingly, for the reasons set out above in relation to argument 2 I find that section 115(2) does not require HMRC to notify a taxpayer under section 9A in accordance with section 115(2). If HMRC does not do so, then it must show the taxpayer had actual notice. Here, the appellant received the notice and so I find that the conditions for notifying the opening of the enquiry under section 9A have been satisfied. 138. However, if required, I find that HMRC did not send the notices to the appellant’s “usual or last known place of residence, or his place of business or employment” for the purposes of section 115(2). The substantive appeal 139. The substantive issue in this appeal concerns the availability and timing of US tax relief to Lloyds underwriters and specifically the timing of such credit under the 1997 Regulations. The appellant’s case is that the 1997 Regulations as they apply to US tax are ultra vires the enabling legislation and that he should obtain relief in accordance with the general provisions in Regulation 4. The substantive appeal: the appellant’s arguments 140. The appellant argues the narrow but important point that Regulation 6 (and the related proviso in Regulation 4) is ultra vires on the grounds that Section 182(1)(d) of the Finance Act 19943 did not give HMRC power to introduce Regulations that provided different relief in different circumstances. This point was developed by the appellant in several arguments. 141. Section 182(1) provides: “(1) The Board may by regulations provide– (a) for the assessment and collection of tax charged in accordance with section 171 above (so far as not provided for by Schedule 19 to this Act); (b) for making, in the event of any changes in the rules or practice of Lloyd's, such amendments of this Chapter as appear to the Board to be expedient having regard to those changes; (c) for modifying the application of this Chapter in cases where a syndicate continues after the end of its closing year or a member dies or otherwise ceases to carry on his underwriting business; (d) for giving credit for foreign tax.” 142. The appellant argued that the only relevant vires granted by Section 182 was to provide “for giving credit for foreign tax”
“ (6) Any power to make regulations conferred by this section includes power to make— (a) different provision for different cases or different purposes (b) ….” 145. Regulations 6 and 7 represent “ different provision for different cases or different purposes” and so had the 1997 Regulations been laid after6 April 2006 when section 182(6) took effect for income tax purposes, there would have been no question of their being ultra vires . Enacting section 182(6) would have been entirely unnecessary had the earlier version of the legislation implicitly permitted different provisions for different cases or different purposes. Given the principle that Parliament does not legislate in vain, this points towards the limited scope of the vires as they stood in 1997. 146. This point had been anticipated when the regulations were being contemplated. In a letter of11 July 1996 obtained by the appellant under the FoI request, one official is noted as saying: I can see that we might get away with this, and no doubt [REDACTED] will know what advice we have received in the past about the scope of the powers that this Section gives to the Board. My only concern is that we should not get too far down the road towards being committed to a particular solution before we are sure we can actually implement it, and my own inclination would still be to check the position with East Wing [Solicitors Office] sooner rather than later” 147. Later on advice from Solicitors Office was sought and the advice given was that section 182(2)(d) was wide enough but the opinion obtained was concise and necessarily irrelevant to this Tribunal. 148. However, the fact that the Regulations replaced but did not change an existing informal agreement does not determine the question as to whether those Regulations were ultra vires . That can only be determined by reference to the provisions in section 182(1)(d) as properly construed using the standard tools of interpretation including context. 149. The appellant relied upon the general principles of interpretation as summarised in the standard works Bennion on Statutory Interpretation and Craies on Legislation and in particular the following passages from Craies: “subordinate legislation maybe challenged on the grounds that it was not an exercise of the kind that was contemplated when the relevant powers conferred” [3.4.1] “it is common for power to legislate to be conferred in terms permitting the making of the incidental or supplemental provision… As a general rule it can be expected that anything at all significant, and certainly anything involving significant intrusion on the liberty of the subject, will not reliably be effected in reliance on a mere power to make incidental or supplemental provision’ [3.4.10] “even where Parliament does not fetter a discretion that it confers by reference to express considerations, constraints and limitations arise both from the rule of administrative law and also from the requirements to construe a broad discretion and the context in which it is conferred” [12.2.6] “Just because a power is drafted in broad terms does not mean one can assume that anything that falls within the literal meaning of the words used to confer that power will be considered within it. Indeed, the more apparently wide a power is, the more the courts will feel obliged to impose some kind of limitation based on the context and probable legislative intent… it is therefore common to find statutory powers drafted in very broad terms with a provision following to the effect that ‘in particular’ the power may be relied upon to do a specified list of things, which on examination will turn out to be a list not of the most important or likely things the recipient of the power is likely to want to do with it, but a list of the things which, because they are the most tangential or because they interfere particularly with individual rights, might otherwise be doubted” [12.2.7.2] 150. The appellant relied also upon two decisions, both cited by Caries. Stuart-Smith LJ in the Court of Appeal in R (oao Spath Holme Ltd) v Secretary of State for the Environment, Transport and the Regions[2000] 3 WLR 141 at [30]: “statutory power is conferred for public purposes as it were on trust, not absolutely - that is to say, it can validly be used only in the right and proper way which Parliament, when conferring it, is presumed to have intended. Although the Crown’s lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms.” 151. Lord Browne-Wilkinson in R v Secretary of State for the Home Department, ex parte Pierson[1998] AC 539 at 573G: “I consider first whether there is any principle of construction which requires the court, in certain cases, to construe general words contained in the statute as being impliedly limited. In my judgement that is such a principle.” 152. The relevant question is what Parliament had envisaged by the use of the words found in the Finance Act. Lord Nicholls in Spath Holme said: “Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the 'intention of Parliament' is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning 'cannot be what Parliament intended', they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A G[1975] AC591 , 613: 'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.' 153. The appellant submits it is clear that before6 April 2006 , the operative date for section 182(6), there was no legislative authority allowing for different provisions for different cases such as to deal differently with tax paid in North America from tax paid in other countries. Accordingly the special provision in regulations 6 and 7 is ultra vires. The substantive appeal: HMRC’s arguments 154. HMRC argued that regulation 6 was not ultra vires . 155. HMRC cited the following passage from Bennion at p.303: “delegated legislation is presumed to be valid unless and until held to be invalid by a court with competence to deal with that question. To be effective, such a declaration must be by a court possessing the necessary jurisdiction. The burden is on the party asserting invalidity to establish it on balance of probabilities” 156. From this passage HMRC drew three conclusions; (1) There is a presumption of validity (2) The burden of proof rests with the appellant in this matter (3) The Tribunal must satisfy itself that it has jurisdiction to hear a claim for legislation being ultra vires 157. On the question of jurisdiction HMRC referred to the decision of Judge Mosedale in this Tribunal in Gui Hui Dong v National Crime Agency[2014] UKFTT 369 at [42]: “I have to satisfy myself that I have jurisdiction to grant permission to appeal and therefore I have to consider whether paragraph 34(8) is actually ultra vires its enabling Act” 158. On the question of interpretation HMRC also relied on Craies on Legislation: “subordinate legislation maybe challenged on the grounds that it was not an exercise of the kind that was contemplated when the relevant powers conferred” [3.4.1] 159.The Finance Act 1993 confers a general power for the assessment and collection of tax charged. The power conferred bysection 182(1)(d) Finance Act 1993 is clear and unequivocal in conferring a power for the provision of regulations to give credit relief for foreign tax. 160. Regulations 6 and 7 simply put on a legislative platform an already existing practice of double taxation relief. Special provisions applied to the US and Canadian foreign tax relief because by their nature and application they are different to the other foreign taxes. This is precisely the type of legislation that would have been envisaged when the powers conferred. It is specific and unique to the Lloyds insurance market. The provisions are not broad and wide ranging but specific and discrete. 161. HMRC also relied upon the observations of Stuart-Smith LJ in the Court of Appeal in Spath Holme at [30]: “statutory power is conferred for public purposes as it were on trust, not absolutely - that is to say, it can validly be used only in the right and proper way which Parliament, when conferring it, is presumed to have intended.” 162. It is a testament to the correct approach adopted by HMRC that they have not received any other challenges relating to the application of these provisions. HMRC have fulfilled their obligation to validly use the power conferred in a just and fair way. 163. Lloyd’s were consulted over the regulations and their agreement sought prior to implementation. 164. HMRC did not accept that the amendment to section 182(1) introduced by theFinance (No.2) Act 1995 is proof that the vires for Regulations 6 and 7 did not previously exist.Finance (No2) Act 1995 introduced several changes for both individual and corporate members and these changes required provisions to cater for different types of members and to allow the regulations to adapt to future changes. 165. Further, as the appellant is aware, Lloyd’s insurance market is fraught with risk where the wins and losses can be significant. This risky activity is primarily the appellant’s predicament not the inability to have double taxation relief. 166. Although not expressly stated, the appellant’s objections are based on perceived unfairness. However the appellant was given tax relief by way of deduction for the 2010/11 resulting in a reduced liability to£106,681.69 . 167. Furthermore, in R v Secretary of State for the Home Department, Ex Parte Pierson,[1998] AC 539 Lord Browne-Wilkinson said: “There is no general principle yet established that the courts have any right to quash administrative decisions on the simple ground that the decision is unfair. The wide words of the statutory discretion are not to be cut down further than is necessary to conform to the generally accepted principles of the general law. Parliament having chosen to confer wide powers on the Secretary of State intends those powers to be exercised by him in accordance with his standards. If the courts seek to limit the ambit of such powers so as to accord with the individual judge's concepts of fairness they will be indirectly arrogating to the court a right to veto a decision conferred by Parliament on the Secretary of State. Only if it can be shown that a general principle of the law would be infringed by giving the statutory words their literal meaning is it legitimate for the courts to construe the statutory words as being impliedly limited.” 168. Here the statutory provisions are not ambiguous and there is no need for the Tribunal to grapple with statutory interpretation so there is no need for a purposive approach. 169. Further, there is no mischief necessary to be remedied but the purpose of the regulations was clear as set out in Ms Wilton’s evidence to ensure equality and fairness when the transition to self-assessment came into force. 170. It is HMRC’s case thatFinance Act 1993 had clearly defined the parameters and HMRC has stayed within the bounds of those limited powers. Discussion on the substantive issue 171. The substantive issue in this appeal is whether Regulation 6 of the 1997 Regulations is ultra vires as being beyond the scope of the powers delegated to HMRC undersection 182(1)(d) Finance Act 1993 . The Tribunal’s jurisdiction 172. The first issue to be determined is whether I have jurisdiction to consider whether regulation 6 is ultra vires . The appellant has not raised the point, and in bringing the appeal presumably asserts by implication that I do. HMRC only made passing reference to the passage in Bennion at page 303 and the decision of Judge Mosedale in Dong . 173. I n Dong Judge Mosedale reviewed the Tribunal’s powers to consider the vures of delegated legislation including the judgements of the House of Lords in Foster v Chief Adjudication Officer [1993] CA 753 and the Court of Appeal in EN (Serbia)[2009] EWCA Civ 630 . 174. In EN (Serbia) Stanley Burnton LJ (with whom the other Lord Justices agreed) in the Court of Appeal said: “[84] Does it follow that the tribunal…erred in law? The conventional view used to be that a subordinate judicial body, and especially an administrative tribunal, did not have jurisdiction to question the validity of delegated legislation…. [86]….It seems to me that both the decision of the House of Lords in Boddington’s case, as well as that in Foster’s case, point powerfully to the conclusion that a tribunal decision that depends on the lawfulness of the ultra vires subordinate legislation is ‘not in accordance with the law’, and is liable to be set aside on appeal or reconsideration. …. [87] However, a tribunal cannot quash delegated legislation. Its decision is not binding on the courts. It may not command universal agreement. Where a tribunal considers that there is a real prospect of a statutory instrument being ultra vires or unlawful, it should give serious consideration to adjourning its proceedings in order to give the party challenging its lawfulness an opportunity to issue judicial review proceedings before the Administrative Court, if necessary seeking an expedited hearing. It is far more appropriate that such issues be litigated before and decided by the courts. However, this is likely to change if and when the AIT become part of the new tribunal structure….” 175. Judge Mosedale concluded at [42]: “For these reasons, I consider that, rather than adjourning, the most appropriate course is for me to determine the lawfulness of paragraph 34(8) for the purpose of this application for permission of appeal. I recognise I have no jurisdiction to quash the legislation” 176. The decision in Dong is not binding on me but it follows the Court of Appeal decision in EN Serbia and I agree. This Tribunal, whilst it cannot quash such legislation, should not apply unlawful secondary legislation and it is appropriate for me to consider whether the legislation is unlawful. Whether Regulation 6 is ultra vires 177. Whether Regulation 6 is ultra vires depends on the proper construction of section 182(1)(d): “(1) The Board may by regulations provide– … (d) for giving credit for foreign tax.” 178. As set out by Lord Nicholls in Spath Holme in construing legislation an objective test must be applied: “Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the 'intention of Parliament' is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning 'cannot be what Parliament intended', they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A G[1975] AC591 , 613: 'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.' 179. However, the burden of proof in this matter must be on the appellant to show why enacted regulations should be disapplied. Lord Browne-Wilkinson in R v Secretary of State for the Home Department, Ex Parte Pierson, said: “Only if it can be shown that a general principle of the law would be infringed by giving the statutory words their literal meaning is it legitimate for the courts to construe the statutory words as being impliedly limited.” 180. Superficially, the 1997 Regulations as a whole provides for “giving credit for foreign tax” as permitted by section 182(1)(d) and so, HMRC argue, that is what HMRC have done. Furthermore, the history of foreign tax credits for underwriters and all of the context points towards section 182(1)(d) being intended to allow HMRC to provide in regulations for a scheme of foreign tax credit that reflected the previous non statutory arrangements and so treated US and Canadian tax differently. 181. However, the appellant’s argument is that Regulation 6 goes too far. Only if Section 128(1)(d) has wording as was later introduced in 1995 is HMRC empowered to introduce a regime which treats US and Canadian tax differently. Adopting the test of Lord Nicholls in Spath Holme, the words of section 182(1)(d) “cannot reasonably be taken as used by Parliament with that meaning”. 182. I cannot accept the appellant’s arguments. Applying the objective test set out by Lord Nicholls, the appellant’s arguments are not sufficient to displace the plain meaning of the words of section 182(1)(d). There may well be arbitrary or otherwise unacceptable schemes for providing credit for foreign taxes but in my view the 1997 Regulations do not cross that line. 183. I have come to this conclusion based on a construction of the legislation without any consideration of the wider context. However, the history of the Simplified Basis and the clear evidence of HMRC seeking to codify that practice in the 1997 Regulations reinforces my conclusion that the intention of Parliament was for HMRC to enact a regime as set out in the 1997 Regulations which preserved a different treatment for relief for US and Canadian tax. 184. I do not accept the appellant’s references to Craies affects the position. In my view the 1997 Regulations were precisely “contemplated” by Parliament (Craies at [3.4.1]) and it is not appropriate to “impose some kind of limitation based on the context and probable legislative intent” (Craies at [12.2.7.2]). Indeed, the evidence shows that applying the context and probable intent of Parliament leads in my view to treating the 1997 Regulations as entirely within the vires ofsection 182(1)(d) Finance Act 1993 . 185. For completeness it is convenient to deal separately with a number of detailed arguments raised by the parties: (1) I do not accept HMRC’s argument that it is relevant that no other taxpayers have challenged the application of Regulation 6 or 7. (2) Further I do not accept HMRC’s point that being an underwriter is risky, that the appellant was aware of that and that the consequences of these risks are the real source of the appellant’s predicament. (3) I do not accept the appellant’s argument that Regulation 3 and 4 provide for giving credit for foreign tax and therefore, by implication, Regulations 6 and 7 are not necessary. This sets up the proposition that necessarily only the simplest regime can be intra vires even if a longer or more detailed regime would be more effective, reasonable or coherent . In my view Parliament cannot be taken to have meant that. (4) Further, I do not accept the appellant’s argument that section 182(1) provided at paragraphs (a) to (c) for differential treatment so that necessarily the draftsman did not intend for a differential regime for regulations introduced under paragraph (d). That is not apparent from the wording of those preceding paragraphs and the appellant has not made good this argument with any illustration of the point. The other paragraphs are longer and more descriptive but do not clearly show that they permit differentiating regulations in a way paragraph (d) does not. (5) The appellant seeks to argue that, as Parliament does not legislate in vain, the insertion of section 182(6) byFinance (No2) Act 1995 , expressly allowing for “different provision for different cases or different purposes”, points towards the original section 182 providing limited vires to HMRC. The task is to construe section 182 as drafted at the time of the making of the 1997 Regulations. That later amendments clarified the position does not mean that the original wording should be construed to provide the later amendments with substantive effect. Parliament’s intention in 1995 may simply have been to put the point beyond doubt. 186. For the reasons set out above I therefore reject the appellant’s argument and find that Regulation 6 of the 1997 Regulations is lawful and applies to the appellant. decision 187. In respect of the Enquiries Arguments I find as follows: (1) Argument 1: the section 8 notices were issued by HMRC as required by section 8 as interpreted in the light ofsection 103 Finance Act 1993 (2) Argument 2: the section 8 notices were received by the appellant and so notified to the appellant as required by section 8 notwithstanding that they were not sent to the appellant’s last known address as required by section 115(2) TMA for the purposes of deemed notice (3) Argument 3: as I have found that the appellant does not succeed in argument 1 or 2 then the tax returns were submitted in response to a valid section 8 notice, were not submitted voluntarily and so the enquiries under section 9A TMA and the consequent closure notices under section 28A were valid. Even if I am wrong on either argument 1 or 2, section 12D TMA deems the section 8 notice and the notices of enquiry to be valid. (4) Argument 4: as regards the 2009-10 tax year, for the same reasons as argument 2, the section 9A enquiry notice was properly notified to the appellant notwithstanding that, as I find, it was sent to the wrong address. 188. I therefore dismiss the appellant’s Enquiries Arguments. 189. On the Substantive Argument I reject the appellant’s argument that Regulation 6 of the 1997 Regulations is ultra vires . Regulation 6 is lawful and applies to the appellant. 190. I therefore dismiss this appeal. Right to apply for permission to appeal 191. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of theTribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 . The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. IAN HYDE TRIBUNAL JUDGE Release date:17 OCTOBER 2020 Appendix 1 Summary of taxation of Lloyd’s syndicate and US tax relief Calendar year 2007 2008 2009 2010 2011 US calendar tax year 2007 2008 2009 2010 2011 UK tax year 2007-08 2008-09 2009-10 2010-11 2011-12 2007 YoA syndicate Write insurance Claims Claims Declare in May taxation Taxed in US Taxed in US Taxed in US Taxed in UK Relief available against UK tax 2007 US tax relieved against UK tax 2008 US tax relief relieved against UK tax 2008 YoA syndicate Write insurance Claims Claims Declare in May taxation Taxed in US Taxed in US Taxed in US Taxed in UK Relief available against UK tax 2008 US tax relieved against UK tax 2009 US tax relieved against UK tax Appendix 2 A. legislation and regulations relevant to the Substantive Arguments 1.Section 182(1) of the Finance Act 1993 provides as follows: “182(1) The Board may by regulations provide– (a) for the assessment and collection of tax charged in accordance with section 171 above (so far as not provided for by Schedule 19 to this Act); (b) for making, in the event of any changes in the rules or practice of Lloyd's, such amendments of this Chapter as appear to the Board to be expedient having regard to those changes; (c) for modifying the application of this Chapter in cases where a syndicate continues after the end of its closing year or a member dies or otherwise ceases to carry on his underwriting business; (d) for giving credit for foreign tax. …. 2.The Lloyd’s Underwriter’s (Double Taxation Relief) Regulations 1997 provides insofar as relevant as follows: “Citation, commencement and effect 1(1) These Regulations may be cited as theLloyd's Underwriters (Double Taxation Relief) Regulations 1997 and shall come into force on14th March 1997 . (2) These Regulations shall have effect for the year 1996-97 and subsequent years of assessment. Interpretation 2(1) In these Regulations- "Canadian tax" means the appropriate income tax or income taxes imposed by the Government of Canada; "final year of assessment" shall be construed in accordance with section 179(2 ) ; "foreign tax" means tax chargeable under the law of a territory outside the United Kingdom; "member" means a member of Lloyd's who is an individual and who is or has been an underwriting member; "Part XVIII" means Part XVIII of the Taxes Act; "the Taxes Act" means theIncome and Corporation Taxes Act 1988 ; "United States tax" means the appropriate Federal income tax or Federal income taxes of the United States of America imposed by the Internal Revenue Code. (2) For the purposes of these Regulations an underwriting year and a year of assessment shall be deemed to correspond to each other if the underwriting year ends in the year of assessment. (3) References to a section, without more, are references to that section of theFinance Act 1993 . Pooled foreign tax 3(1) For the purposes of Part XVIII foreign tax paid in respect of profits or losses arising from a member's underwriting business in a year of assessment shall be taken into account in accordance with paragraph (2). (2) Foreign tax paid as mentioned in paragraph (1) shall be taken into account by reference to the aggregate amount of such amounts of foreign tax as are paid (whether or not under the law of more than one territory outside the United Kingdom) in respect of income that is taken into account in computing the profits or losses of the member's underwriting business; and accordingly the provisions of Part XVIII shall apply as if- (a) references, however expressed, to tax paid under the law of a territory outside the United Kingdom were references to that aggregate amount paid as a single payment in respect of a single source of income, and (b) references to United Kingdom tax chargeable in respect of any income were references to United Kingdom tax chargeable in respect of the total profits of the member's underwriting business. Allocation of foreign tax to United Kingdom years of assessment-syndicate profits 4(1) For the purposes of regulation 3, foreign tax referred to in that regulation that is paid in respect of income specified in paragraph (2), other than foreign tax to which regulation 6 or 7 applies, shall be allocated to the year of assessment specified in paragraph (3). (2) The income specified is the income that is taken into account in computing the profits or losses of the member's underwriting business falling within section 172(1)(a) or (b). (3) The year of assessment specified is the same year of assessment as the year of assessment to which, by virtue of section 172, the profits or losses referred to in paragraph (2) relate. Allocation of foreign tax to United Kingdom years of assessment-non-syndicate profits 5(1) For the purposes of regulation 3, foreign tax referred to in that regulation that is paid in respect of income specified in paragraph (2), other than foreign tax to which regulation 6 or 7 applies, shall be allocated to the year of assessment specified in paragraph (3). (2) The income specified is the income that is taken into account in computing the profits or losses of the member's underwriting business falling within section 172(1)(c). (3) The year of assessment specified is the same year of assessment as the year of assessment to which, by virtue of section 172, the profits or losses referred to in paragraph (2) relate. Allocation of foreign tax to United Kingdom years of assessment-United States tax 6(1) This regulation applies to foreign tax that is United States tax paid by Lloyd's in accordance with a United States tax return rendered by them for a calendar year in respect of income that is taken into account in computing the profits or losses of the member's underwriting business. (2) For the purposes of regulation 3 and subject to paragraph (3), United States tax paid as mentioned in paragraph (1) shall be allocated to the year of assessment next but one following the year of assessment to which the underwriting year for which the return is made corresponds. (3) Where the member's final year of assessment is the year 1996/97, United States tax paid as mentioned in paragraph (1) which under paragraph (2) would have been eligible for relief in a later year of assessment had not the member's final year of assessment been the year 1996/97 and which has not been used for relief in an earlier year of assessment, shall be allocated to the year 1996/97. Allocation of foreign tax to United Kingdom years of assessment-Canadian tax 7(1) This regulation applies to foreign tax that is Canadian tax paid by Lloyd's in accordance with a Canadian tax return rendered by them for a calendar year in respect of income that is taken into account in computing the profits or losses of the member's underwriting business. (2) For the purposes of regulation 3 and subject to paragraph (3), Canadian tax paid as mentioned in paragraph (1) shall be allocated to the year of assessment next following the year of assessment to which the underwriting year for which the return is made corresponds. (3) Where the member's final year of assessment is the year 1996/97, Canadian tax paid as mentioned in paragraph (1) which under paragraph (2) would have been eligible for relief in a later year of assessment had not the member's final year of assessment been the year 1996/97 and which has not been used for relief in an earlier year of assessment, shall be allocated to the year 1996/97….” 3.The Finance (No.2) Act 1995 provides insofar as relevant as follows: “45(1) Omit section 173 of, and Schedule 19 to, FA 1993 (Lloyd's underwriters: assessment and collection of tax). (2) In section 182 of that Act (regulations) in subsection (1)(a) (power of Commissioners for Her Majesty's Revenue and Customs to make regulations providing for assessment and collection of tax charged in accordance with section 171 of FA 1993, so far as not provided for by Schedule 19 to that Act) omit “(so far as not provided for by Schedule 19 to this Act)”. (3) In that section, at the end insert— “ (6) Any power to make regulations conferred by this section includes power to make— (a) different provision for different cases or different purposes, and (b) incidental, supplemental or transitional provision and savings. ” . (4) … .”
“8(1) For the purpose of establishing the amounts in which a person is chargeable to income tax and capital gains tax for a year of assessment, and the amount payable by him by way of income tax for that year, he may be required by a notice given to him by an officer of the Board— (a) to make and deliver to the officer, a return containing such information as may reasonably be required in pursuance of the notice; and (b) to deliver with the return such accounts, statements and documents, relating to information contained in the return, as may reasonably be so required.” 2. Section 9A TMA provides insofar as relevant as follows “(1) An officer of the Board may enquire into a return under section 8 or 8A of this Act if he gives notice of his intention to do so (“notice of enquiry”)— (a) to the person whose return it is (“the taxpayer”), (b) within the time allowed….” 3. Section 28A TMA provides insofar as relevant as follows “(1) An enquiry under section 9A(1) of this Act is completed when an officer of the Board by notice (a “closure notice”) informs the taxpayer that he has completed his enquiries and states his conclusions. In this section “the taxpayer” means the person to whom notice of enquiry was given….” 4. Section 115 TMA provides insofar as relevant as follows; “(1) A notice or form which is to be served under the Taxes Acts on a person may be either delivered to him or left at his usual or last known place or residence. (2) Any notice or other document to be given, sent, served or delivered under the Taxes Acts may be served by post, and, if to be given, sent, served or delivered to or on any person by HMRC may be so served addressed of that person— (a) at his usual or last known place of residence, or his place of business or employment, or (b) in the case of a company, at any other prescribed place, and in the case of a liquidator of a company, at his address for the purposes of the liquidation or any other prescribed place. (3) In subsection (2) above “ prescribed ” means prescribed by regulations made by the Board, and the power of making regulations for the purposes of that subsection shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of the House of Commons.” 5.Section 87 Finance Act 2019 (inserting Section 12D into the TMA) provides insofar as relevant as follows; “(1) In Part 2 of TMA 1970 (returns of income and gains), after section 12C insert— “ Voluntary returns 12D Returns made otherwise than pursuant to a notice (1)This section applies where— (a) a person delivers a purported return (“the relevant return”) under section 8, 8A or 12AA (“the relevant section”) for a year of assessment or other period (“the relevant period”), (b) no notice under the relevant section has been given to the person in respect of the relevant period, and (c) HMRC treats the relevant return as a return made and delivered in pursuance of such a notice. (2) For the purposes of the Taxes Acts— (a) treat a relevant notice as having been given to the person on the day the relevant return was delivered, and (b) treat the relevant return as having been made and delivered in pursuance of that notice (and, accordingly, treat it as if it were a return under the relevant section). (3) “Relevant notice” means— (a) in relation to section 8 or 8A, a notice under that section in respect of the relevant period; (b) in relation to section 12AA, a notice under section 12AA(3) requiring the person to deliver a return in respect of the relevant period, on or before the day the relevant return was delivered (or, if later, the earliest day that could be specified under section 12AA). (4) In subsection (1)(a) “purported return” means anything that— (a) is in a form, and is delivered in a way, that a corresponding return could have been made and delivered had a relevant notice been given, and (b) purports to be a return under the relevant section. (5) Nothing in this section affects sections 34 to 36 or any other provisions of the Taxes Acts specifying a period for the making or delivering of any assessment (including self-assessment) to income tax or capital gains tax. ” (2)….. (3) The amendments made by this section are treated as always having been in force. (4) However, those amendments do not apply in relation to a purported return delivered by a person if, before29 October 2018 — (a) the person made an appeal under the Taxes Acts, or a claim for judicial review, and (b) the ground (or one of the grounds) for the making of the appeal or claim was that the purported return was not a return under section 8, 8A or 12AA of TMA 1970 or paragraph 3 of Schedule 18 to FA 1998 because no relevant notice was given. (5) The Treasury may by regulations— (a) make such amendments of relevant tax legislation as they consider appropriate in consequence of subsection (1) or (2); (b) make such amendments of section 12D of TMA 1970 (inserted by subsection (1) of this section) as they consider appropriate in connection with the coming into force of section 61 of, and Schedule 14 to, F(No.2)A 2017 (digital reporting and record keeping for income tax etc). (6) In subsection (5)(a) “ relevant tax legislation ” means— (a) TMA 1970, (b) Schedule 18 to FA 1998, or (c) any other enactment relating to income tax, corporation tax or capital gains tax. (7) Regulations under this section are to be made by statutory instrument. (8) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of the House of Commons.” 6.Section 103 of the Finance Act 2020 provides insofar as relevant as follows: “(1) Anything capable of being done by an officer of Revenue and Customs by virtue of a function conferred by or under an enactment relating to taxation may be done by HMRC (whether by means involving the use of a computer or otherwise). (2) Accordingly, it follows that HMRC may (among other things)— (a) give a notice under section 8, 8A or 12AA of TMA 1970 (notice to file personal, trustee or partnership return); (b)…. (3) Anything done by HMRC in accordance with subsection (1) has the same effect as it would have if done by an officer of Revenue and Customs (or, where the function is conferred on an officer of a particular kind, an officer of that kind). (4) In this section— “HMRC” means Her Majesty’s Revenue and Customs; references to an officer of Revenue and Customs include an officer of a particular kind, such as an officer authorised for the purposes of an enactment. (5) This section is treated as always having been in force. (6) …...”