Information and inspection powers: Schedule 36 FA 2008: transitional - use of new powers in pre-existing enquiries
Schedule 36 gives HMRC some powers which it did not have before. You should not use one of these new powers to ask for information or documents if you were in a position to ask for them before 1 April 2009, but could not do so because you did not have the legal power until Sch 36 came into effect.
Guidance can be found at CH21050 and this instruction expands on that guidance, and offers a further example.
The phrase ‘in a position to ask’ means that you could have justified asking for the information, on the basis of the evidence held by you, and that you probably would have done so, given the progress of your enquiry, if you had had legal coverage.
If you open an enquiry into another return, after 1 April 2009, it is treated as a new enquiry, even if your action is part of a single investigation.
You are investigating an avoidance scheme with several users. You want information and documents from the promoter (a third party). Before Sch 36 came into effect, you could not seek information from a third party using formal powers.
You issued a s20(3) TMA notice to the promoter on 15 March 2009, seeking documents but not information. You would have included information requests if you had had legal coverage. You may not now use Sch 36 to request information.
At 31 March 2009 you had enough evidence to justify asking the promoter for information and documents, but you were awaiting the results of first-party enquiries before going to the third party. This could enable you to draw up a more limited and focused notice for the third party. You received replies from first parties during April. You may now use Sch 36 to request information as well as documents.
You issued a documents-only notice on 15 March 2009, as in Example 1. On 1 May 2009, you opened an ITSA enquiry into the return of another user of the scheme. You may now use Sch 36 to ask the promoter for information, because the request can be justified entirely in terms of the new ITSA enquiry.