EM3260 - Reopening Earlier Years: Discovery in SA Years: Made Available

TMA70/S29(6) & (7)

FA98/SCH18/PARA 44(2)

‘Made available' in respect of any year of assessment (accounting period for CTSA) is defined as

1. contained in a relevant return or any accounts, statements or documents accompanying a relevant return
2. contained in any relevant claim or accompanying accounts, statements or documents
3. contained in any documents, accounts or particulars supplied in connection with an enquiry into any relevant returns or claims
4. information whose existence could be reasonably expected to be inferred from information available under items (a) to (c) above or information notified in writing to HMRC by the taxpayer.

Relevant returns and claims are the taxpayer’s returns and claims for the year of assessment and each of the two immediately preceding years of assessment (accounting periods for CTSA).

Information “made available” does not include information that the officer might have been expected to have sought through an enquiry into the return or otherwise .

In Langham v Veltema TL3717, Auld LJ considered two issues relating to s.29(6)

The first issue was “whether awareness or inference of actual insufficiency is required to negative the condition, or would awareness that it was questionable do”

The second issue was “what is the relevant information before the Inspector on the basis of which he could be said to have been reasonably expected to be aware of an insufficiency”.

First issue

In addressing this Auld LJ concluded:

“..it is plain from the wording of the statutory test in s.29 (5) that it is concerned….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 s. 29 (1), namely an actual insufficiency in the assessment….

It is a mark of the way in which the subsection provides an objective test of awareness of insufficiency, expressed as a negative condition in the form that an officer “could not have been reasonably expected…to be aware of the insufficiency. It also allows as s.29 (6) expressly does, for constructive awareness of insufficiency, that is, for something less than an awareness of an insufficiency, in the form of an inference of insufficiency.”.

Second issue

Auld LJ considered:

“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 in question.”