“41 (1) If [an officer of Revenue and Customs][discovers] as regards an accounting period of a company that— (a) an amount which ought to have been assessed to tax has not been assessed, or (b) an assessment to tax is or has become insufficient, or (c) relief has been given which is or has become excessive, [he] may make an assessment (a “discovery assessment") in the amount or further amount which ought in [his] opinion to be charged in order to make good to the Crown the loss of tax.” (a) an amount which ought to have been assessed to tax has not been assessed, or (b) an assessment to tax is or has become insufficient, or (c) relief has been given which is or has become excessive, [he] may make an assessment (a “discovery assessment") in the amount or further amount which ought in [his] opinion to be charged in order to make good to the Crown the loss of tax.”
“44 (1) A discovery assessment for an accounting period for which the company has delivered a company tax return, or a discovery determination, may be made if at the time when [an officer of Revenue and Customs]— (a) ceased to be entitled to give a notice of enquiry into the return, … [he] could not have been reasonably expected, on the basis of the information made available to [him] before that time, to be aware of the situation mentioned in paragraph 41(1) or (2). (2) For this purpose information is regarded as made available to [an officer of Revenue and Customs] if— (a) it is contained in a relevant return by the company or in documents accompanying any such return, or (b) it is contained in a relevant claim made by the company or in any accounts, statements or documents accompanying any such claim, or (c) it is contained in any documents, accounts or information produced or provided by the company to [an officer of Revenue and Customs] for the purposes of an enquiry into any such return or claim, or (d) it is information the existence of which, and the relevance of which as regards the situation mentioned in paragraph 41(1) or (2)— (i) could reasonably be expected to be inferred by [an officer of Revenue and Customs] from information falling within paragraphs (a) to (c) above, or (ii) are notified in writing to [an officer of Revenue and Customs] by the company or a person acting on its behalf. (3) In sub-paragraph (2)— “relevant return” means the company’s company tax return for the period in question or either of the two immediately preceding accounting periods, and “relevant claim” means a claim made by or on behalf of the company as regards the period in question [or an application undersection 751A of the Taxes Act 1988 made by or on behalf of the company which affects the company's tax return for the period in question].” (a) ceased to be entitled to give a notice of enquiry into the return, … [he] could not have been reasonably expected, on the basis of the information made available to [him] before that time, to be aware of the situation mentioned in paragraph 41(1) or (2). (2) For this purpose information is regarded as made available to [an officer of Revenue and Customs] if— (a) it is contained in a relevant return by the company or in documents accompanying any such return, or (b) it is contained in a relevant claim made by the company or in any accounts, statements or documents accompanying any such claim, or (c) it is contained in any documents, accounts or information produced or provided by the company to [an officer of Revenue and Customs] for the purposes of an enquiry into any such return or claim, or (d) it is information the existence of which, and the relevance of which as regards the situation mentioned in paragraph 41(1) or (2)— (i) could reasonably be expected to be inferred by [an officer of Revenue and Customs] from information falling within paragraphs (a) to (c) above, or (ii) are notified in writing to [an officer of Revenue and Customs] by the company or a person acting on its behalf. (3) In sub-paragraph (2)— “relevant return” means the company’s company tax return for the period in question or either of the two immediately preceding accounting periods, and “relevant claim” means a claim made by or on behalf of the company as regards the period in question [or an application undersection 751A of the Taxes Act 1988 made by or on behalf of the company which affects the company's tax return for the period in question].”
“126. Patten LJ, with whom Briggs and Simon LJJ agreed, summarised principles relating to section 29 of the TMA in these terms in Sanderson v Revenue and Customs Commissioners[2016] EWCA Civ 19 ,[2016] 4 WLR 67 , at paragraph 17: “The power of HMRC to make an assessment under section 29(1) following the discovery of what, for convenience, I shall refer to as an insufficiency in the self-assessment depends upon whether an officer ‘could not have been reasonably expected, on the basis of the information made available to him before that time, to be aware of the insufficiency’. It is clear as a matter of authority: (1) that the officer is not the actual officer who made the assessment … but a hypothetical officer; (2) that the officer has the characteristics of an officer of general competence, knowledge or skill which a reasonable knowledge and understanding of the law: see HMRC v Lansdowne Partners LLP[2012] STC 544 ; (3) that where the law is complex even adequate disclosure by the taxpayer may not make it reasonable for the officer to have discovered the insufficiency on the basis of the information disclosed at the time: see Lansdowne at [69]; (4) that what the hypothetical officer must have been reasonably expected to be aware of is an actual insufficiency: see Langham v Veltema[2004] STC 544 per Auld LJ at [33]–[34]: ‘33. More particularly, it is plain from the wording of the statutory test in section 29(5) that it is concerned, not with what an Inspector could reasonably have been expected to do, but with what he could have been reasonably expected to be aware of. It speaks of an Inspector’s objective awareness, from the information made available to him by the taxpayer, of ‘the situation’ mentioned in section 29(1), namely an actual insufficiency in the assessment, not an objective awareness that he should do something to check whether there is such an insufficiency …; (5) that the assessment of whether the officer could reasonably have been expected to be aware of the insufficiency falls to be determined on the basis of the types of available information specified in section 29(6). These are the only sources of information to be taken into account for that purpose: see Langham v Veltema, at [36]: ‘The answer to the second issue - as to the source of the information for the purpose of section 29(5) though distinct from, may throw some light on, the answer to the first issue. It seems to me that the key to the scheme is that the Inspector is to be shut out from making a discovery assessment under the section only when the taxpayer or his representatives, in making an honest and accurate return or in responding to a section 9A enquiry, have clearly alerted him to the insufficiency of the assessment, not where the Inspector may have some other information, not normally part of his checks, that may put the sufficiency of the assessment in question. If that other information when seen by the Inspector does cause him to question the assessment, he has the option of making a section 9A enquiry before the discovery provisions of section 29(5) come into play.’” “The power of HMRC to make an assessment under section 29(1) following the discovery of what, for convenience, I shall refer to as an insufficiency in the self-assessment depends upon whether an officer ‘could not have been reasonably expected, on the basis of the information made available to him before that time, to be aware of the insufficiency’. It is clear as a matter of authority: (1) that the officer is not the actual officer who made the assessment … but a hypothetical officer; (2) that the officer has the characteristics of an officer of general competence, knowledge or skill which a reasonable knowledge and understanding of the law: see HMRC v Lansdowne Partners LLP[2012] STC 544 ; (3) that where the law is complex even adequate disclosure by the taxpayer may not make it reasonable for the officer to have discovered the insufficiency on the basis of the information disclosed at the time: see Lansdowne at [69]; (4) that what the hypothetical officer must have been reasonably expected to be aware of is an actual insufficiency: see Langham v Veltema[2004] STC 544 per Auld LJ at [33]–[34]: ‘33. More particularly, it is plain from the wording of the statutory test in section 29(5) that it is concerned, not with what an Inspector could reasonably have been expected to do, but with what he could have been reasonably expected to be aware of. It speaks of an Inspector’s objective awareness, from the information made available to him by the taxpayer, of ‘the situation’ mentioned in section 29(1), namely an actual insufficiency in the assessment, not an objective awareness that he should do something to check whether there is such an insufficiency …; (5) that the assessment of whether the officer could reasonably have been expected to be aware of the insufficiency falls to be determined on the basis of the types of available information specified in section 29(6). These are the only sources of information to be taken into account for that purpose: see Langham v Veltema, at [36]: ‘The answer to the second issue - as to the source of the information for the purpose of section 29(5) though distinct from, may throw some light on, the answer to the first issue. It seems to me that the key to the scheme is that the Inspector is to be shut out from making a discovery assessment under the section only when the taxpayer or his representatives, in making an honest and accurate return or in responding to a section 9A enquiry, have clearly alerted him to the insufficiency of the assessment, not where the Inspector may have some other information, not normally part of his checks, that may put the sufficiency of the assessment in question. If that other information when seen by the Inspector does cause him to question the assessment, he has the option of making a section 9A enquiry before the discovery provisions of section 29(5) come into play.’”
“41 (1) If [an officer of Revenue and Customs][discovers] as regards an accounting period of a company that— (a) an amount which ought to have been assessed to tax has not been assessed, or (b) an assessment to tax is or has become insufficient, or (c) relief has been given which is or has become excessive, [he] may make an assessment (a “discovery assessment") in the amount or further amount which ought in [his] opinion to be charged in order to make good to the Crown the loss of tax.” (a) an amount which ought to have been assessed to tax has not been assessed, or (b) an assessment to tax is or has become insufficient, or (c) relief has been given which is or has become excessive, [he] may make an assessment (a “discovery assessment") in the amount or further amount which ought in [his] opinion to be charged in order to make good to the Crown the loss of tax.”
“199. Plainly, the greater the level of disclosure, the greater the officer's awareness can reasonably be expected to be. If a disclosure on a tax return includes all material facts and, in complex cases, an adequate explanation of the technical issues raised by those facts and the position taken in relation to those issues, it would be reasonable to expect an officer to be aware of an insufficiency. What constitutes reasonable awareness is linked to the fullness and adequacy of the disclosure – the expertise of the hypothetical officer remains that of general competence, knowledge or skill which includes a reasonable knowledge and understanding of the law. 200. In argument before us Mr Nawbatt came close to suggesting, as we understood it, that a hypothetical officer could not be expected to understand complex or specialist areas of tax law. We disagree. If the disclosure (factual and technical) is adequate in the circumstances of the case, a hypothetical officer can reasonably be expected to be aware of an insufficiency even in a complex case or one involving specialist technical knowledge. …”
“Solutions were not readily available by default due to the nature of SaaS and PaaS cloud services. As stated earlier in this report, the company identified 4 core areas, or technical uncertainties they needed to overcome. The company could not find a readily available single solution ‘off-the-shelf’ which would enable them to address all 4 of these core areas.”
“The company looked at great length for off-the-shelf tools that would do this level of database anonymisation, despite GDPR, no solution was readily available meaning the company’s solution was entirely bespoke. The company spent a lot of time looking for off-the-shelf products to do the trimming and anonymisation that they required, there was nothing that came close to what the company needed. A fully bespoke system was created. Within the implementation, the company had not seen the following elsewhere: ➢ An abstraction layer over different database backends to allow the same functionality to work over mySQL and postgre ➢ The ability to run commands at any level in the hierarchy of database objects, host, database, table, and column.”
“Having the anonymiser consistently anonymise the same piece of information to the same randomised replacement, via backing onto a redis persistence layer, is also something the company had not seen in other anonymisation systems. This was important to the company as some projects are multi database and require PII like email addresses to be consistent across multiple databases.”
“The company wished to analyse and improve their import process to efficiently match new results to the database of users via per event configurable matching criteria. Where third party software was being used, the company looked at how it worked to see if they could produce something better or whether they could implement functionality where they had researched alternative methods to do the same thing, but faster and more efficiently.”
“At the time of writing, the company does not believe there was anything on the market that would allow visualisation and fine grain introspection of billing for AWS services that was provided by the company’s offering. The software created fulfilled the need of the company, the company implemented this as it allowed the company to understand and reduce their bill substantially, in addition to improving client billing.”