Arbitrage: legislation and principles: procedures: Clearance procedures
HM Revenue and Customs will consider requests for advice about the legislation, including whether it will apply to a planned series of transactions that may constitute a scheme, and wherever possible will give a decision whether any notice will be issued in respect of the disclosed transactions. The only circumstances where it will not be possible to give a clearance are those where the company seeking the clearance has not provided all the relevant information necessary for HMRC to come to a view as to whether the legislation is applicable.
Following the introduction of new procedures for dealing with clearance requests, all applications for clearance in respect of TIOPA10/Part 6 should be sent to the Customer Compliance Manager (CCM) or Customer Co-ordinator (CC) for the company or group.
Where the company or group does not have an appointed CCM or CC, applications as well as general queries regarding the clearance procedures should continue to be sent to the specialist unit in Business Assets & International.
HMRC will aim to work to a 28 day turnaround target from receipt of the application, provided all relevant information is included. If there is a particular need for a clearance decision to be given by a specific date, applicants should specify this in their application. HMRC will do their best to meet these requests.
The information that the application should contain will depend to some extent on the nature and characteristics of each case although certain information will be required in all cases (see INTM596560 and INTM596570).
Contact details for the specialist unit in Business Assets & International:
HM Revenue & Customs
Business Assets & International
100 Parliament Street
Telephone: 03000 517495
A clearance will state the terms on which it is given, including the term for which it will apply provided the relevant underlying facts and legislation remain unchanged. HMRC will consider itself bound by a clearance as long as:
- all the relevant facts are accurately given; and
- (where the clearance is given in advance of the execution of the relevant scheme) the scheme is executed in accordance with the proposals set out in the clearance application.
Where a clearance cannot be given, HMRC will state the reasons. If a company disagrees with HMRC’s’ view on a clearance, it is entitled to make its self assessment on its own understanding of the law and how this applies to the facts given in the clearance application. Should a notice under this legislation subsequently be issued, the company can appeal in the normal way against any amendment to the self assessment which HMRCs may make.
The continued application of the clearance may be reviewed by the company’s local office to ensure that the facts and circumstances remain the same. However, a company should notify its local office if there have been any material changes to the facts or proposals in the original application for clearance which may have a bearing on the continued existence of the clearance. Failure to do so may result in penalties under FA07/SCH24/PARA1 if a return is submitted which relies on a clearance which, because of significant changes in the facts or the law, is no longer appropriate.
Precisely what information and supporting material the application should contain will depend on the relevant facts and circumstances and on the nature of the clearance requested. It is not therefore possible to list the information required in all circumstances. Diagrammatic charts and step by step details of the transactions are particularly useful, together with explanations of the purposes of the scheme and reconciliation of how funds are used.
Exchange of Information
The UK has certain international obligations to exchange information about rulings issued by HMRC. These obligations arise out of bilateral treaties, the EU Directive on Administrative Cooperation in the field of Taxation (the DAC), and Action 5 of the OECD’s Base Erosion and Profit Shifting (BEPS) project. Statutory and non-statutory clearances are agreements made between a tax authority and a customer, upon which the customer can rely. This makes them “rulings” for international taxation purposes, meaning they are very likely to be exchangeable with another jurisdiction:
- automatically, under BEPS Action 5;
- automatically, under the DAC; or
- spontaneously, where it would be foreseeably relevant to advise another jurisdiction.
For more information, including whether, when, and how to exchange such rulings: please consult IEIM500000+ onwards. There may be information that you will need to collect from the customer, so it is important that you review the guidance on sharing rulings before you reply.