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Finance Bill
Schedule 14 — Stamp duty land tax: determination of penalties and related appeals

    233

 

          (4)      A penalty determined under this paragraph is due and payable at the end of

the period of 30 days beginning with the date of issue of the notice of

determination.

          (5)      Where an officer of the Board has decided to impose a penalty, and has taken

all other decisions needed for arriving at the amount of the penalty, he may

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entrust to any other officer of the Board responsibility for completing the

determination procedure, whether by means involving the use of a

computer or otherwise, including responsibility for serving notice of the

determination.

Alteration of penalty determination

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  3       (1)      After notice has been served of the determination of a penalty, the

determination cannot be altered except in accordance with this paragraph or

on appeal.

          (2)      If it is discovered by an authorised officer that the amount of the penalty is

or has become insufficient, the officer may make a determination in a further

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amount so that the penalty is set at the amount which in the officer’s opinion

is correct or appropriate.

          (3)      If in the case of a tax-related penalty it is discovered by an authorised officer

that the amount taken into account as the amount of tax is or has become

excessive, he may revise the determination so that the penalty is set at the

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amount that is correct.

                   Where more than the correct amount has already been paid the appropriate

amount shall be repaid.

          (4)      In this paragraph an “authorised officer” means an officer of the Board

authorised by the Board for the purposes of this paragraph.

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Liability of personal representatives

  4        If a person liable to a penalty has died—

              (a)             any determination that could have been made in relation to that

person may be made in relation to his personal representatives, and

              (b)             any penalty imposed on them is a debt due from and payable out of

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the person’s estate.

Appeal against penalty determination

  5       (1)      An appeal lies to the General or Special Commissioners against the

determination of a penalty.

          (2)      Notice of appeal must be given in writing to the officer of the Board by

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whom the determination was made within 30 days of the date of issue of the

notice of determination.

          (3)      The notice of appeal must specify the grounds of appeal, but on the hearing

of the appeal the Commissioners may allow the appellant to put forward a

ground not specified in the notice of appeal, and take it into consideration,

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if satisfied that the omission was not deliberate or unreasonable.

          (4)      On an appeal under this paragraph the Commissioners may—

              (a)             if it appears to them that no penalty has been incurred, set the

determination aside;

 

 

Finance Bill
Schedule 14 — Stamp duty land tax: determination of penalties and related appeals

    234

 

              (b)             if the amount determined appears to them to be appropriate, confirm

the determination;

              (c)             if the amount determined appears to them to be excessive, reduce it

to such other amount (including nil) as appears to them to be

appropriate;

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              (d)             if the amount determined appears to them to be insufficient, increase

it to such amount, not exceeding the permitted maximum, as they

consider appropriate.

Further appeal

  6       (1)      An appeal lies against the amount of a penalty determined by the

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Commissioners on an appeal under paragraph 5, at the instance of the

person liable to the penalty—

              (a)             to the High Court, or

              (b)             in Scotland, to the Court of Session sitting as the Court of Exchequer.

          (2)      On an appeal under this paragraph the court has the same powers as are

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conferred on the Commissioners by paragraph 5(4) above.

          (3)      The right of appeal under this paragraph is in addition to any right of appeal

conferred by regulations under paragraph 9 of Schedule 17 (general power

to provide for appeals on points of law).

Penalty proceedings before the court

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  7       (1)      Where in the opinion of the Board the liability of a person for a penalty arises

by reason of his fraud, or the fraud of another person, proceedings for the

penalty may be brought—

              (a)             in the High Court, or

              (b)             in Scotland, in the Court of Session sitting as the Court of Exchequer.

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          (2)      Proceedings under this paragraph in England and Wales shall be brought—

              (a)             by and in the name of the Board as an authorised department for the

purposes of the Crown Proceedings Act 1947 (c. 44), or

              (b)             in the name of the Attorney General.

                   Any such proceedings shall be deemed to be civil proceedings by the Crown

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within the meaning of Part 2 of the Crown Proceedings Act 1947.

          (3)      Proceedings under this paragraph in Scotland shall be brought in the name

of the Advocate General for Scotland.

          (4)      Proceedings under this paragraph in Northern Ireland shall be brought—

              (a)             by and in the name of the Board as an authorised department for the

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purposes of the Crown Proceedings Act 1947 as for the time being in

force in Northern Ireland, or

              (b)             in the name of the Advocate General for Northern Ireland.

                   Any such proceedings shall be deemed to be civil proceedings within the

meaning of Part 2 of the Crown Proceedings Act 1947 as for the time being

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in force in Northern Ireland.

          (5)      If in proceedings under this paragraph the court does not find that fraud is

proved but considers that the person concerned is nevertheless liable to a

penalty, the court may determine a penalty notwithstanding that, but for the

opinion of the Board as to fraud, the penalty would not have been a matter

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for the court.

 

 

Finance Bill
Schedule 15 — Stamp duty land tax: partnerships
Part 1 — General provisions

    235

 

          (6)      Paragraph 2 (determination of penalty by officer of the Board) does not

apply where proceedings are brought under this paragraph.

          (7)      In relation to any time before the coming into force of section 2(1) of the

Justice (Northern Ireland) Act 2002 (c. 26), the reference in sub-paragraph

(4)(b) to the Advocate General for Northern Ireland shall be read as a

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reference to the Attorney General for Northern Ireland.

Time limit for determination of penalties

  8       (1)      The following time limits apply in relation to the determination of penalties

under this Schedule.

          (2)      The general rule is that—

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              (a)             no penalty may be determined under paragraph 2 (determination by

officer of Board), and

              (b)             no proceedings for a penalty may be brought under paragraph 7

(penalty proceedings before the court),

                   more than six years after the date on which the penalty was incurred or, in

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the case of a daily penalty, began to be incurred.

                   This rule is subject to the following provisions of this paragraph.

          (3)      Where the amount of a penalty is to be ascertained by reference to the tax

chargeable in respect of a transaction, a penalty may be determined under

paragraph 2, or proceedings for a penalty may be begun under paragraph 7,

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at any time within three years after the final determination of the amount of

tax by reference to which the amount of the penalty is to be determined.

          (4)      Sub-paragraph (3) does not apply where a person has died and the

determination would be made in relation to his personal representatives if

the tax was charged in an assessment made more than six years after the

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effective date of the transaction to which it relates.

          (5)      A penalty under section 96 (penalty for assisting in preparation of incorrect

return) may be determined by an officer of the Board, or proceedings for

such a penalty may be commenced before a court, at any time within 20

years after the date on which the penalty was incurred.

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Schedule 15

Section 104

 

Stamp duty land tax: partnerships

Part 1

General provisions

Partnerships

35

  1        In this Part of this Act a “partnership” means—

              (a)             a partnership within the Partnership Act 1890 (c. 39),

              (b)             a limited partnership registered under the Limited Partnerships Act

1907 (c. 24), or

 

 

Finance Bill
Schedule 15 — Stamp duty land tax: partnerships
Part 2 — Ordinary partnership transactions

    236

 

              (c)             a limited liability partnership formed under the Limited Liability

Partnerships Act 2000 (c. 12) or the Limited Liability Partnerships

Act (Northern Ireland) 2002 (c. 12 (N. I.)),

           or a firm or entity of a similar character to any of those mentioned above

formed under the law of a country or territory outside the United Kingdom.

5

Legal personality of partnership disregarded

  2       (1)      For the purposes of this Part of this Act—

              (a)             a chargeable interest held by or on behalf of a partnership is treated

as held by or on behalf of the partners, and

              (b)             a land transaction entered into for the purposes of a partnership is

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treated as entered into by or on behalf of the partners,

                   and not by or on behalf of the partnership as such.

          (2)      Sub-paragraph (1) applies notwithstanding that the partnership is regarded

as a legal person, or as a body corporate, under the law of the country or

territory under which it is formed.

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Continuity of partnership

  3        For the purposes of this Part of this Act a partnership is treated as the same

partnership notwithstanding a change in membership if any person who

was a member before the change remains a member after the change.

Partnership not to be regarded as unit trust scheme etc

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  4        A partnership is not to be regarded for the purposes of this Part of this Act

as a unit trust scheme or an open ended investment company.

Part 2

Ordinary partnership transactions

Introduction

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  5       (1)      This Part of this Schedule applies to transactions entered into as purchaser

by or on behalf of the members of a partnership, other than transactions

within Part 3 of this Schedule (transactions excluded from stamp duty land

tax).

Responsibility of partners

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  6       (1)      Anything required or authorised to be done under this Part of this Act by or

in relation to the purchaser under the transaction is required or authorised

to be done by or in relation to all the responsible partners.

          (2)      The responsible partners in relation to a transaction are—

              (a)             the persons who are partners at the effective date of the transaction,

35

and

              (b)             any person who becomes a member of the partnership after the

effective date of the transaction.

          (3)      This paragraph has effect subject to paragraph 8 (representative partners).

 

 

Finance Bill
Schedule 15 — Stamp duty land tax: partnerships
Part 3 — Transactions excluded from stamp duty land tax

    237

 

Joint and several liability of responsible partners

  7       (1)      Where the responsible partners are liable—

              (a)             to make a payment of tax or to interest on unpaid tax,

              (b)             to make a payment in accordance with an assessment under

paragraph 29 of Schedule 10 (recovery of excessive repayment), or

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              (c)             to a penalty under this Part of this Act or to interest on such a

penalty,

                   the liability is a joint and several liability of those partners.

          (2)      No amount may be recovered by virtue of sub-paragraph (1)(c) from a

person who did not become a responsible partner until after the relevant

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time.

          (3)      The relevant time for this purpose is—

              (a)             in relation to so much of a penalty as is payable in respect of any day,

or to interest on so much of a penalty as is so payable, the beginning

of that day;

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              (b)             in relation to any other penalty, or interest on such a penalty, the time

when the act or omission occurred that caused the penalty to become

payable.

Representative partners

  8       (1)      Anything required or authorised to be done by or in relation to the

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responsible partners may instead be done by or in relation to any

representative partner or partners.

          (2)      This includes making the declaration required by paragraph 1(1)(c) of

Schedule 10 or paragraph 2(1)(c) of Schedule 11 (declaration that return or

self-certificate is complete and correct).

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          (3)      A representative partner means a partner nominated by a majority of the

partners to act as the representative of the partnership for the purposes of

this Part of this Act.

          (4)      Any such nomination, or the revocation of such a nomination, has effect only

after notice of the nomination, or revocation, has been given to the Inland

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Revenue.

Part 3

Transactions excluded from stamp duty land tax

Introduction

  9       (1)      This Part of this Schedule excludes from stamp duty land tax—

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              (a)             the transfer of an interest in land into a partnership (paragraph 10),

              (b)             the acquisition of an interest in a partnership (paragraph 11), or

              (c)             the transfer of an interest in land out of a partnership (paragraph 12).

          (2)      In this Part of this Schedule—

              (a)             references to an interest in land include any interest or right that

40

would be a chargeable interest but for being excluded from stamp

duty land tax, and

              (b)             references to the transfer of an interest in land include—

 

 

Finance Bill
Schedule 15 — Stamp duty land tax: partnerships
Part 3 — Transactions excluded from stamp duty land tax

    238

 

                    (i)                   the grant or creation of an interest in land,

                    (ii)                  the variation of an interest in land, and

                    (iii)                 the surrender or release of an interest in land.

Transfer of interest in land into a partnership

  10      (1)      This paragraph applies to a transaction by which—

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              (a)             a partner transfers an interest in land to a partnership, or

              (b)             a person transfers an interest in land to a partnership in return for an

interest in the partnership,

                   whether in connection with the formation of the partnership or in a case

where the partnership already exists.

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          (2)      There is a transfer of an interest in land to a partnership in any case where

an interest in land that was not partnership property becomes partnership

property.

          (3)      A transaction to which this paragraph applies is excluded from stamp duty

land tax.

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Acquisition of partnership interest

  11       An acquisition of an interest in a partnership is excluded from stamp duty

land tax.

Transfer of interest in land out of a partnership

  12      (1)      This paragraph applies to a transaction by which an interest in land is

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transferred from a partnership to a person in consideration of his ceasing to

be a member of the partnership or reducing his interest in the partnership.

          (2)      There is a transfer of an interest in land from a partnership in any case where

an interest in land that was partnership property ceases to be partnership

property.

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          (3)      For the purposes of this paragraph property that was partnership property

before the partnership was dissolved or otherwise ceased to exist shall be

treated as remaining partnership property until it is distributed.

          (4)      A transaction to which this paragraph applies is excluded from stamp duty

land tax.

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Effect of exclusion of transaction from stamp duty land tax

  13      (1)      A transaction that is excluded from stamp duty land tax by this Part of this

Schedule shall be treated for the purposes of this Part of this Act as if it were

not a land transaction.

          (2)      Nothing in section 125 (abolition of stamp duty except in relation to stock or

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marketable securities), or in Part 2 of Schedule 20 (amendments and repeals

consequential on that section), affects the application of the enactments

relating to stamp duty in relation to an instrument effecting a transaction

that is excluded from stamp duty land tax by this Part of this Schedule.

          (3)      In Part 1 of Schedule 20 (provisions supplementing that section) references

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to stock or marketable securities shall be read as including any property that

 

 

Finance Bill
Schedule 16 — Stamp duty land tax: trusts and powers

    239

 

is the subject-matter of a transaction excluded from stamp duty land tax by

this Part of this Schedule.

Construction of references to partnership property

  14       Any reference in this Part of this Schedule to partnership property is to an

interest or right held by or on behalf of a partnership, or the members of a

5

partnership, for the purposes of the partnership business.

Schedule 16

Section 105

 

Stamp duty land tax: trusts and powers

Meaning of “settlement” and “bare trust”

  1       (1)      In this Part “settlement” means a trust that is not a bare trust.

10

          (2)      In this Part a “bare trust” means a trust under which property is held by a

person as trustee—

              (a)             for a person who is absolutely entitled as against the trustee, or who

would be so entitled but for being a minor or other person under a

disability, or

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              (b)             for two or more persons who are or would be jointly so entitled,

                   and includes a case in which a person holds property as nominee for

another.

          (3)      In sub-paragraph (2)(a) and (b) the references to a person being absolutely

entitled to property as against the trustee are references to a case where the

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person has the exclusive right, subject only to satisfying any outstanding

charge, lien or other right of the trustee, to resort to the property for payment

of duty, taxes, costs or other outgoings or to direct how the property is to be

dealt with.

          (4)      In sub-paragraph (2) “minor”, in relation to Scotland, means a person under

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legal disability by reason of nonage.

Interests of beneficiaries under certain trusts

  2        Where property is held in trust under the law of Scotland, or of a country or

territory outside the United Kingdom, on terms such that, if the trust had

effect under the law of England and Wales, a beneficiary would be regarded

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as having an equitable interest in the trust property—

              (a)             that beneficiary shall be treated for the purposes of this Part as

having such an interest notwithstanding that no such interest is

recognised by the law of Scotland or, as the case may be, the country

or territory outside the United Kingdom, and

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              (b)             an acquisition of the interest of a beneficiary under the trust shall

accordingly be treated as involving the acquisition of an interest in

the trust property.

 

 

 
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