Reporting funds: provision of information to HMRC: obligation to provide information - Regulation 107
In order to ensure that the offshore funds regime functions properly HMRC may, from time to time, need to request certain information, particulars or documents from reporting fund managers. As offshore funds are clearly not within any UK jurisdiction, except to the extent that they are required to comply with the reporting fund regulations if they wish to be approved as reporting funds, HMRC cannot use its normal enquiry powers provided by the Tax Acts. Regulation 107 therefore provides HMRC with the necessary powers to require reporting funds to provide information, particulars or documents.
HMRC will only issue a formal notice when a fund or its manager has not adequately responded to an informal request for the information required. Such an ‘initial request’, as it is referred to in regulation 107, must be given to the fund or its manager within a period of one year from the day that the fund provided the information required under regulation 106 (see OFM28100).
When a reporting fund or its manager does not provide all of the information requested under an initial request then HMRC may give notice requiring the fund or its manager to provide such information, particulars or documents in the power or possession of the fund or its manager within a period specified in the notice (this cannot to be less than 42 days, and may be extended by HMRC where they consider it reasonable to do so), that HMRC reasonably require to check whether the fund has met or continues to meet its obligations under the regulations.
Reporting funds and managers have a right of appeal against such notices. A notice of appeal must be given to HMRC within a period of 42 days beginning with the day on which the formal notice was given.
Appeals will be heard by the First-tier Tribunal (or the Upper Tribunal if so determined by Tribunal procedure rules) who may either uphold, vary or quash the notice.
Failure to provide information, particulars or documents
If a reporting fund fails to provide the requested information, particulars or documents within the time specified in the notice issued by HMRC or within such further time as HMRC may agree, it will be considered to have breached the reporting fund requirements set out in the regulations.
Such a breach will be considered to be a serious breach, and will result in HMRC issuing an exclusion notice (regulation 113 - see OFM29100 onwards for details of breaches and their consequences).