Assessments to excise duty: meaning of ascertained
Ascertained is not defined in legislation and so takes on its normal everyday meaning. According to the Oxford Dictionary ascertain means “to find out by making enquiries.” On that definition there may be any number of enquiries that might be made and it is possible that some lines of enquiries on the same facts may lead to different conclusions as to the amount of duty ascertained to be due.
Therefore whilst the ascertained power does not provide specifically for the exercising of best judgement, see EAIG13000, even for ‘ascertained’ assessments, judgement has to be applied when ascertaining the amount of excise duty to be assessed.
Consequently so long as that judgement has been exercised in a Wednesbury reasonable manner and is based on the case specific facts, then the assessing officer will have made that assessment in accordance with the s12(1A) power.
A s12(1A) assessment would fail the Wednesbury reasonable test if the decision to assess was so unreasonable that no reasonable authority could ever have come to it. That would be the case where there did not exist some material for taking the action which is relevant (the assessment) and where the assessing officer has deliberately omitted or ignored other relevant material.
The section 12(1A) assessment power should be used in circumstances where there has not been a default and section 12(1) does not apply. There will not have been a default if, for example, there is no statutory requirement for a person to make a declaration by a given date.
In brief, the circumstances where this power may be used will normally have the following characteristics:
- an excise duty point has been created
- the person liable to pay the duty can be identified
- an amount of excise duty is due and can be ascertained, but
- there has been no default.