APN representation grounds

[webberg]

Thanks for the below.
The APN representation (Notice of assessment) in question is regarding the prerequisites of APN issuance covered in your ‘Open Year’ thread where either a Tax enquiry or Discovery Assessment needs to be send before sending an APN. This fact may still remain regardless of the outcome of the Judicial Review. Would you agree?


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Yes I would agree, but with respect, I fear you are conflating a number of related but separate issues.

There are certain conditions that need to be met in order for an APN to be issued.

In brief:

a. A tax enquiry is in progress
b. An appeal has been made that is not yet determined
c. The arrangements are DOTAS arrangements

If you have met a or b above, the year is "open". HMRC will refer to such a year as "protected".

There are also some variations where a GAAR notice or a Follower Notice has been issued. I'll assume that these are not relevant here.

Tax enquiry means that HMRC has opened an enquiry, usually by virtue of section 9a TMA 1970. If that is the case, you will have a letter saying that.

An appeal made but not yet determined is usually a discovery assessment (s 29 TMA 1970) which was issued by HMRC and appealed by you.

DOTAS means that it has been disclosed or in some instances, has not been but should have been.

If you have the above, then you can have an Accelerated Payment Notice served on you. That will identify the advantage you claim and which HMRC thinks should be denied. It will ask you to pay the amount demanded.

You can make a representation against that notice within 90 days of its issue. If so, payment is not required until 30 days after HMRC has responded.

You cannot appeal an APN. All you can do is make the representation. If you have grounds to say that one or more of the conditions have not been met, then the APN will be withdrawn. If you do not, then the APN remains due and payable.

So, by saying "APN representation (notice of assessment)" you are confusing two separate matters.

An APN representation is made against the APN itself.

A notice of assessment is what you get (usually) at the end of an enquiry or, where HMRC has been too late to open an enquiry, as a discovery assessment.

[Redbrick]

Yes I would agree, but with respect, I fear you are conflating a number of related but separate issues.

There are certain conditions that need to be met in order for an APN to be issued.

In brief:

a. A tax enquiry is in progress
b. An appeal has been made that is not yet determined
c. The arrangements are DOTAS arrangements

If you have met a or b above, the year is "open". HMRC will refer to such a year as "protected".

There are also some variations where a GAAR notice or a Follower Notice has been issued. I'll assume that these are not relevant here.

Tax enquiry means that HMRC has opened an enquiry, usually by virtue of section 9a TMA 1970. If that is the case, you will have a letter saying that.

An appeal made but not yet determined is usually a discovery assessment (s 29 TMA 1970) which was issued by HMRC and appealed by you.

DOTAS means that it has been disclosed or in some instances, has not been but should have been.

If you have the above, then you can have an Accelerated Payment Notice served on you. That will identify the advantage you claim and which HMRC thinks should be denied. It will ask you to pay the amount demanded.

You can make a representation against that notice within 90 days of its issue. If so, payment is not required until 30 days after HMRC has responded.

You cannot appeal an APN. All you can do is make the representation. If you have grounds to say that one or more of the conditions have not been met, then the APN will be withdrawn. If you do not, then the APN remains due and payable.

So, by saying "APN representation (notice of assessment)" you are confusing two separate matters.

An APN representation is made against the APN itself.

A notice of assessment is what you get (usually) at the end of an enquiry or, where HMRC has been too late to open an enquiry, as a discovery assessment.

Thanks webberg.
1. I recall from your earlier thread that point c. 'The arrangements are DOTAS arrangements’ alone is not sufficient to raise an APN .One needs to have tax enquiry(a) or a Discovery Assessment(b) as a prerequisite for APN issuance. Does it still stand true?

2. On the second part , I am sorry for the confusion for 'Notice of Assessment’ as this was the only document which I received before the APN issuance and no Tax enquiry or Discovery was send to me ..Most likely due to a fully disclosed SA and P11D for the 2 years.

[webberg]

Thanks webberg.
1. I recall from your earlier thread that point c. 'The arrangements are DOTAS arrangements’ alone is not sufficient to raise an APN .One needs to have tax enquiry(a) or a Discovery Assessment(b) as a prerequisite for APN issuance. Does it still stand true?

2. On the second part , I am sorry for the confusion for 'Notice of Assessment’ as this was the only document which I received before the APN issuance and no Tax enquiry or Discovery was send to me ..Most likely due to a fully disclosed SA and P11D for the 2 years.

1. yes

2. I would guess that the "notice of assessment" you have is a discovery assessment.

"Fully disclosed SA"?

Did you include all the loans you received AS INCOME?

If not, HMRC will not regard the SA as being fully disclosed and WILL raise a discovery assessment.

A P11D is not a part of your statutory obligation to HMRC. The P11D is part of the EMPLOYER'S obligation - not yours. Sending the P11D to HMRC yourself counts for very little.

Further, the P11D treats loans as giving rise to a BIK whereas HMRC believe that the "loans" are income. Hence they issue discovery assessments.

You should contact HMRC and ask them what they think they have issued.

Without seeing all the documents you mention (often with significant confusion over names), there is nothing else I can do.

[Redbrick]

1. yes

2. I would guess that the "notice of assessment" you have is a discovery assessment.

"Fully disclosed SA"?

Did you include all the loans you received AS INCOME?

If not, HMRC will not regard the SA as being fully disclosed and WILL raise a discovery assessment.

A P11D is not a part of your statutory obligation to HMRC. The P11D is part of the EMPLOYER'S obligation - not yours. Sending the P11D to HMRC yourself counts for very little.

Further, the P11D treats loans as giving rise to a BIK whereas HMRC believe that the "loans" are income. Hence they issue discovery assessments.

You should contact HMRC and ask them what they think they have issued.

Without seeing all the documents you mention (often with significant confusion over names), there is nothing else I can do.

2. looks like the 'Notice of assessment' is a 'Discovery Assessment’.However it mentions a generic section 29 TMA 1970 without information whether it was 29(1)- Insufficient information or 29(4) -Careless/deliberate. It seems HMRC do not have evidence to prove what gaps in the SA they are planning to discover. I have requested HMRC to clarify the sub-section 29 TMA in the Notice of Assessment and the evidence ..Awaiting their response but am not sure if HMRC will provide me all the details .

Regarding SA disclosure I did manually fill the SA100, SA101,102 based on advise by the scheme provider .Cant recollect which sections the loan went in. Have raised a SAR request .

[webberg]

2. looks like the 'Notice of assessment' is a 'Discovery Assessment’.However it mentions a generic section 29 TMA 1970 without information whether it was 29(1)- Insufficient information or 29(4) -Careless/deliberate. It seems HMRC do not have evidence to prove what gaps in the SA they are planning to discover. I have requested HMRC to clarify the sub-section 29 TMA in the Notice of Assessment and the evidence ..Awaiting their response but am not sure if HMRC will provide me all the details .

Regarding SA disclosure I did manually fill the SA100, SA101,102 based on advise by the scheme provider .Cant recollect which sections the loan went in. Have raised a SAR request .

Whether it's 29(1) or 29(4) makes little difference except the time allowed to raise the assessment.

HMRC is not obliged at this stage to disclose their "evidence". It could be that they "discovered" that you used a particular scheme and that would be enough to raise the DA.

I have not come across any promoter who would have advised you to include loans as income on a SATR. Usually you would have been told that the loans created a "benefit" but not a liability on the gross value and therefore there was "no need" to disclose anything. Again HMRC could have "discovered" that your return was lacking that data.