As part of the E-marketplaces disclosure campaign HMRC has issued information requests under old provisions - they carry no right to appeal.
In March 2012, at the start of its E-marketplaces disclosure campaign, HMRC issued online auction sites with information request notices under Section 18A(2) TMA 1970 to provide details of their member lists. The move is significant: if it had waited until April 2012, it would have to use different powers.
So what is the issue?
There is no right of appeal to a tribunal under s18A – so a recipient of such a notice would have to apply for judicial review if it objects. Conversely, HMRC’s new data gathering powers under Schedule 23 FA 2011 apply from 1 April 2012, on which date s18A is repealed. Sch 23 does carry a right of appeal.
Using a s18A(2) information request notices HMRC is trying to request details of the names and addresses of any persons whose details are retained on a register.
What is a register?
The term “register” in s18A is not defined and so it takes its normal meaning. Online auction sites will maintain lists of members and users, whether a list is quite the same as a register is something that the online sites may wish to argue about via judicial review.
S18A is more commonly used by HMRC to obtain details of licence holders, such as market traders from councils.
For a s18A notice to be valid it must in the inspector’s reasonable opinion be relevant to any tax liability to which a person is or may be subject or the amount of any such liability.
There is no appeal against a s18A notice, and failure to act will result in a penalty of £300 plus daily penalties of up to £60 if the failure persists.
Information gleaned from a register under s18A notice is not required for an entry which ceased to subsist:
a) before 6 April 1988, or
b) in a year of assessment ending more than three years before the date of the giving of the notice.So this limits the data gathered in some case to the years 2008/09 and later.