“In our view the further steps that it took, namely to seek legal advice on the arguments raised by Portland, did amount to an enquiry within the ordinary meaning of that term. In essence, the question is one of degree and in our view the further steps taken indicate the undertaking of an “examination”, “investigation” or “scrutiny” of the return.”
“a notice of enquiry need not be in any particular form, the only requirement being that it gives notice of an intention to enquire into a land transaction return. In our view the letter of6 September 2012 achieved that. In our view consistent with the policy in section 83(2) FA 2003, a communication should be regarded as giving notice of an intention to enquire provided the intended effect is reasonably ascertainable by the person to whom it is directed. In our view Portland would clearly ascertain from HMRC’s letter that there was an intention to enquire further into the return in the light of the further submissions made by Portland’s solicitors.”
“There can be no enquiry into a claim without HMRC giving the notice required by paragraph 5. Whether the letter or other communication in question gave the necessary notice depends on whether it would be read by a reasonable recipient in the position of the taxpayer as doing so. The same is true of any document said to be a closure notice. These are questions of law.”
“a rejection by HMRC of a claim on the grounds that it is out of time, by reference to no more than the claim itself and a calculation of the applicable time limit, does not involve any use by HMRC of their statutory powers to enquire into the claim nor does it constitute notice of an intention to do so.”
“The statute is clear: once a decision is taken to open an enquiry, the HMRC officer must give notice to the taxpayer of his intention to enquire into the claim. Under the scheme of these provisions, the notice precedes the enquiry under paragraph 5 and alerts the taxpayer to the start of a formal process with its attendant statutory powers available to HMRC. 50. I conclude therefore that HMRC’s letter in this case could not serve both as a notice under paragraph 5 and as a closure notice under paragraph 7. I find it difficult to think that the same document could ever serve as both but, as not every circumstance can be foreseen, I do not express a concluded view.”
“Thank you for your letter dated3 July 2018 . I received this letter on6 July 2018 .Section 58D of the Finance Act 2003 states that claims for Multiple Dwellings Relief (MDR) must be made in a land transaction return or in an amendment to a return. Under Paragraph 6 of Schedule 10 to theFinance Act 2003 , an amendment can be made no later than 12 months after the filing date for the return. The filing date for a land transaction return is 30 days after the effective date of the transaction. The filing date for this transaction was24 June 2016 . The deadline for an amendment to the return was24 June 2017 . As your request was received after this date I am unable to process it as an amendment. There is no right of appeal against a refusal to process a late amendment. As a claim for MDR can only be made in a return or an amendment to the return I cannot consider your request under any other part of the SDLT legislation. Therefore,£109,500 Stamp Duty Land Tax (SDLT) remains outstanding on this account.”
“I am prepared to withhold further enforcement proceedings for a period of 3 months to allow you time to submit a formal MDR application to the stamp duty office and for you to receive a formal decision letter of response from them. As discussed this has the possibility of two outcomes. Your debt balance may be reduced or you will receive confirmation that you are out of time to make a claim. If the latter formal decision is delivered from the stamp duty office and you disagree with the decision you can then submit an appeal application to the Tribunal Court. This would mean that HMRC would not be able to proceed with enforcement action until your tribunal case has been heard and a decision delivered. Please note if you do appeal and the tribunal office does not accept your application because you have not completed the application correctly or your case does not fulfil the appeal criteria HMRC would then recommence their enforcement action. To avoid this, payment in full would need to be made or an effective repayment plan negotiated and agreed within 14 days.”
“50. Nor can I see any rational reason why Parliament would have wished to dispense altogether with the generally applicable time limit in paragraph 6(3), enabling taxpayers to make claims for repayment without any time limit, even decades later when memories may have faded and documents relating to the original land transaction may have been lost. There is nothing inconsistent in Parliament providing a right to reclaim tax paid as a safeguard for innocent taxpayers caught by the widely worded charge in section 44(4), but at the same time making that right subject to clear procedural rules, including time limits on the right to reclaim payment. It is of the essence of a self-assessment system that tax effects can be undone by administrative failure and merely meeting the substantive conditions for the grant of a relief is rarely enough to secure that a taxpayer receives the relief in question. Where the relief requires a claim, and the claim is not made in accordance with any procedural requirements, the taxpayer will not be given the relief. 51. Moreover, hard-edged time limits are a common feature of the self-assessment scheme. Where they govern the availability of a relief, they have the inevitable potential to cause hardship. In the case of section 44(9), a balance between the competing objectives of preventing tax avoidance on the one hand, and relieving innocent transactions caught by section 44(4) on the other, was clearly intended by Parliament. Since the longer the period of substantial performance lasts without completion of the contract, the more likely it is the purchaser will have obtained benefits under the contract in a way that justifies maintaining the SDLT charge, it was rational to strike that balance with a time limit of 13 months for amending the return from the effective date of the transaction giving rise to substantial performance (in other words, 12 months after the filing date). This limits the scope for avoidance but is simple to operate (for both HMRC and taxpayers). I can see no good reason why the unambiguous, hard-edged time limit in paragraph 6(3) should yield to section 44(9) as Mr Thomas contended. The consequence of Mr Thomas’ construction is to dispense with certainty and finality in the sound administration of SDLT. That would be a surprising result.”
“53. Accordingly, in my judgment the word “afterwards” does not provide an (otherwise unarticulated) exception to the time limit generally applied by paragraph 6(3) for making amendments. It has nothing to do with time limits at all. Once the duty to repay arises, the second sentence of section 44(9) requires a claim to be made by way of amendment of the original return. That can only be done in the period specified by paragraph 6(3). 54. I recognise that the consequence of this conclusion is that the words in paragraph 6(3) “Except as otherwise provided” had no substantive effect on enactment. The presumption that all words in a statutory provision should have substantive effect is a presumption that can be displaced. In any event Mr Thomas does not dispute that those words could have been intended to be forward looking only, to account for future amendments. While that may be regarded as an odd drafting technique since a future amendment could have inserted those words when a subsequent exception was introduced, I agree with the UT that the words are likely to have been included in Part 4 FA 2003 as a helpful aid to the reader, to point out for the future, that the generally applicable time limit might be countermanded elsewhere.”