Finance Bill - continued        House of Commons
PART II, AGGREGATES LEVY - continued
Review and appeal - continued

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Appeals against reviewed decisions.     41. - (1) Subject to the following provisions of this section, an appeal shall lie to an appeal tribunal with respect to any of the following decisions-
 
 
    (a) any decision by the Commissioners on a review under section 40 above (including a deemed confirmation under subsection (8) of that section);
 
    (b) any decision by the Commissioners on any such review of a decision referred to in section 40(1) above as the Commissioners have agreed to undertake in consequence of a request made after the end of the period mentioned in section 40(3) above.
      (2) Where an appeal under this section relates to a decision (whether or not contained in an assessment) that an amount of aggregates levy is due from any person, that appeal shall not be entertained unless-
 
 
    (a) the amount which the Commissioners have determined to be due has been paid or deposited with them; or
 
    (b) on being satisfied that the appellant would otherwise suffer hardship-
 
      (i) the Commissioners agree, or
 
      (ii) the tribunal decide,
 
    that it should be entertained notwithstanding that that amount has not been so paid or deposited.
      (3) On an appeal under this section relating to a penalty under paragraph 7 of Schedule 6 to this Act (evasion), the burden of proof as to the matters specified in paragraphs (a) to (c) of sub-paragraph (1) of that paragraph shall lie upon the Commissioners.
 
Determinations on appeal.     42. - (1) Where, on an appeal under section 41 above-
 
 
    (a) it is found that an assessment of the appellant made, confirmed or treated as confirmed by the Commissioners on a review under section 40 above ("the original assessment") is an assessment for an amount that is less than it ought to have been, and
 
    (b) the tribunal give a direction specifying the correct amount,
       the assessment shall have effect as an assessment of the amount specified in the direction and (without prejudice to any power under this Part to reduce the amount of interest payable on the amount of an assessment) as if it were an assessment notified to the appellant in that amount at the same time as the original assessment.
 
      (2) On an appeal under section 41 above, the powers of the appeal tribunal in relation to any decision of the Commissioners shall include a power, where the tribunal allow an appeal on the ground that the Commissioners could not reasonably have arrived at the decision, either-
 
 
    (a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct; or
 
    (b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a further review of the original decision.
      (3) Where, on an appeal under section 41 above, the appeal tribunal find that a liability to a penalty or to an amount of interest arises, the tribunal shall not give any direction for the modification of the amount payable in respect of that liability except-
 
 
    (a) in exercise of a power conferred on the tribunal by section 46(1) below (penalties) or paragraph 10(3) or (6) of Schedule 5 to this Act, paragraph 6(6) or (9) of Schedule 8 to this Act or paragraph 5(5) or (8) of Schedule 10 to this Act (penalty interest); or
 
    (b) for the purpose of making the amount payable conform to the amount of the liability imposed by this Part.
      (4) Where, on an appeal under section 41 above, it is found that the whole or part of any amount paid or deposited in pursuance of section 41(2) above is not due, so much of that amount as is found not to be due shall be repaid with interest at such rate as the tribunal may determine.
 
      (5) Where, on an appeal under section 41 above, it is found that the whole or part of any amount due to the appellant by way of any repayment in respect of a tax credit has not been paid, so much of that amount as is found not to have been paid shall be paid with interest at such rate as the tribunal may determine.
 
      (6) Where-
 
 
    (a) an appeal under section 41 above has been entertained notwithstanding that an amount determined by the Commissioners to be payable as aggregates levy has not been paid or deposited, and
 
    (b) it is found on the appeal that that amount is due,
       the tribunal may, if they think fit, direct that that amount shall be paid with interest at such rate as may be specified in the direction.
 
      (7) Sections 85 and 87 of the Value Added Tax Act 1994 (settling of appeals by agreement and enforcement of certain decisions of tribunal) shall have effect as if-
 
 
    (a) the references to section 83 of that Act included references to section 41 above; and
 
    (b) the references to value added tax included references to aggregates levy.
Adjustments of contracts.     43. - (1) Where-
 
 
    (a) an agreement to supply a quantity of aggregate to any person has been entered into at any time before the commencement date, and
 
    (b) on or after that date aggregates levy is charged on that quantity of aggregate,
       so much of the agreement as requires any payment to be made to the supplier at the time when or after the charge to levy on that quantity of aggregate arises shall be adjusted so as to secure that the cost of discharging the liability to pay the levy, to the extent that it would otherwise have been borne by the supplier, is borne by the person making the payment.
 
      (2) Where-
 
 
    (a) an agreement with regard to any sum payable in respect of the use of land (whether the sum is called rent or royalty or otherwise) provides that the amount of the sum is to be calculated by reference to-
 
      (i) the turnover of a business, or
 
      (ii) the price received for minerals extracted from the land,
 
    (b) the agreement was entered into before commencement date, and
 
    (c) the circumstances are such that (had the agreement been made on or after that date) it might reasonably be expected that it would have provided that aggregates levy charged in particular circumstances be ignored in calculating the turnover or price,
       the agreement shall be taken to provide that aggregates levy charged in those circumstances shall be ignored in calculating the turnover or, as the case may be, price.
 
 
General provisions
Destination of receipts.     44. All money and securities for money collected or received for or on account of aggregates levy shall-
 
 
    (a) if collected or received in Great Britain, be placed to the general account of the Commissioners kept at the Bank of England under section 17 of the Customs and Excise Management Act 1979; and
 
    (b) if collected or received in Northern Ireland, be paid into the Consolidated Fund of the United Kingdom in such manner as the Treasury may direct.
Regulations and orders.     45. - (1) The powers of the Commissioners under this Part to make regulations shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of the House of Commons.
 
      (2) Where regulations made under this Part impose a relevant requirement on any person, they may provide that if the person fails to comply with the requirement he shall be liable, subject to subsection (3) below, to a penalty of £250.
 
      (3) Where by reason of any conduct-
 
 
    (a) a person is convicted of an offence (whether under this Act or otherwise), or
 
    (b) a person is assessed to a penalty under paragraph 7 of Schedule 6 to this Act,
       that person shall not by reason of that conduct be liable also to a penalty under any regulations under this Part.
 
      (4) In subsection (2) above "relevant requirement" means any requirement other than one the penalty for a contravention of which is specified in section 25(3) or 33(3) above or in paragraph 2 of Schedule 7 to this Act.
 
      (5) Subject to subsection (6) below, a power under this Part to make any provision by order or regulations-
 
 
    (a) may be exercised so as to apply the provision only in such cases as may be described in the order or regulations;
 
    (b) may be exercised so as to make different provision for different cases or descriptions of case; and
 
    (c) shall include power by the order or regulations to make such supplementary, incidental, consequential or transitional provision as the Treasury or, as the case may be, the Commissioners may think fit.
      (6) Subsection (5) above does not apply to an order under section 16(6) or 24(10) above.
 
Civil penalties.     46. - (1) Where a person is liable to a civil penalty imposed by or under this Part-
 
 
    (a) the Commissioners or, on appeal, an appeal tribunal may reduce the penalty to such amount (including nil) as they think proper; but
 
    (b) on an appeal relating to any penalty reduced by the Commissioners, an appeal tribunal may cancel the whole or any part of the Commissioners' reduction.
      (2) In determining whether a civil penalty should be, or should have been, reduced under subsection (1) above, no account shall be taken of any of the following matters, that is to say-
 
 
    (a) the insufficiency of the funds available to any person for paying any aggregates levy due or for paying the amount of the penalty;
 
    (b) the fact that there has, in the case in question or in that case taken with any other cases, been no or no significant loss of aggregates levy;
 
    (c) the fact that the person liable to the penalty or a person acting on his behalf has acted in good faith.
      (3) For the purposes of any provision made by or under this Part under which liability to a civil penalty does not arise in respect of conduct for which there is shown to be a reasonable excuse-
 
 
    (a) an insufficiency of funds available for paying any amount is not a reasonable excuse; and
 
    (b) where reliance has been placed on any other person to perform any task, neither the fact of that reliance nor any conduct of the person relied upon is a reasonable excuse.
      (4) Schedule 10 to this Act (which makes provision about the assessment of civil penalties imposed and about interest on such penalties) shall have effect.
 
      (5) If it appears to the Treasury that there has been a change in the value of money since the time when the amount of a civil penalty provided for by this Part was fixed, they may by order made by statutory instrument substitute, for the amount for the time being specified as the amount of that penalty, such other sum as appears to them to be justified by the change.
 
      (6) In subsection (5) above the reference to the time when the amount of a civil penalty was fixed is a reference-
 
 
    (a) in the case of a penalty which has not previously been modified under that subsection, to the time of the passing of this Act; and
 
    (b) in any other case, to the time of the making of the order under that subsection that made the most recent modification of the amount of that penalty.
      (7) An order under subsection (5) above-
 
 
    (a) shall not be made unless a draft of the order has been laid before Parliament and approved by resolution of the House of Commons; and
 
    (b) shall not apply to the penalty for any conduct before the coming into force of the order.
      (8) In this section "civil penalty" means any penalty liability to which arises otherwise than in consequence of a person's conviction for a criminal offence.
 
 
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