Visitor Levy (Scotland) Act 2024

Chapter 3 Penalties

Power to impose penalties

46 Power of local authorities to impose penalties

A relevant local authority may impose penalties on a person in accordance with this Chapter.

Penalty for failure to make returns

47 Penalty for failure to make returns

(1) A penalty is payable by a liable person (“P”) where P fails to make a return in accordance with section 26.

(2) P is liable to a penalty under this section as determined by a relevant local authority.

(3) In sections 48, 49 and 50 “penalty date”, in relation to a return, means the day after the day on which a return must be made under section 26.

48 Three month penalty for failure to make return

(1) P is liable to a penalty under this section if—

(a) P's failure continues after the end of the period of 3 months beginning with the penalty date,

(b) the relevant local authority decides that such a penalty should be payable, and

(c) the relevant local authority gives notice to P specifying the date from which the penalty is payable.

(2) The penalty under this section is to be determined by a relevant local authority for each day that the failure continues during the period of 90 days beginning with the date specified in the notice given under subsection (1)(c).

(3) The date specified in the notice under subsection (1)(c)—

(a) may be earlier than the date on which the notice is given, but

(b) may not be earlier than the end of the period mentioned in subsection (1)(a).

49 Six month penalty for failure to make return

(1) P is liable to a penalty under this section if P's failure continues after the end of the period of 6 months beginning with the penalty date.

(2) The penalty under this section is to be determined by a relevant local authority.

50 Twelve month penalty for failure to make return

(1) P is liable to a penalty under this section if P's failure continues after the end of the period of 12 months beginning with the penalty date.

(2) Where, by failing to make the return, P deliberately withholds information which would enable or assist a relevant local authority to assess P's liability to pay the levy, the penalty under this section is to be determined by a relevant local authority.

(3) In any case not falling within subsection (2), the penalty under this section is to be determined by a relevant local authority.

51 Reasonable excuse for failure to make return

(1) If P satisfies the relevant local authority that there is a reasonable excuse for a failure to comply with section 26, liability to a penalty under sections 47 to 50 does not arise in relation to that failure.

(2) For the purposes of subsection (1)—

(a) an insufficiency of funds is not a reasonable excuse unless attributable to events outside P's control,

(b) where P relies on any other person to do anything, that is not a reasonable excuse unless P took reasonable care to avoid the failure, and

(c) where P had a reasonable excuse for the failure but the excuse has ceased, P is to be treated as having continued to have the excuse if the failure is remedied without unreasonable delay after the excuse ceased.

Penalty for failure to pay levy

52 Penalty for failure to pay levy

(1) A penalty is payable by a liable person (“P”) where—

(a) P fails to pay the total amount of the levy payable in accordance with section 29(2),

(b) the local authority has reminded P that payment is due, and

(c) the period of 14 days beginning with the day on which the reminder is given expires without payment having been made.

(2) P is liable to a penalty as determined by a relevant local authority.

(3) If any amount of the levy remains unpaid after the end of the period of 5 months beginning with the penalty date, P is liable to an additional penalty as determined by a relevant local authority.

(4) If any amount of the levy remains unpaid after the end of the period of 11 months beginning with the penalty date, P is liable to an additional penalty as determined by a relevant local authority.

(5) In this section, “penalty date”, in relation to an amount of the levy, means the day after the day on which the period mentioned in subsection (1)(c) expired.

53 Reasonable excuse for failure to pay levy

(1) If P satisfies the relevant local authority that there is a reasonable excuse for a failure to comply with section 29, liability to a penalty under section 52 does not arise in relation to that failure.

(2) For the purposes of subsection (1)—

(a) an insufficiency of funds is not a reasonable excuse unless attributable to events outside P's control,

(b) where P relies on any other person to do anything, that is not a reasonable excuse unless P took reasonable care to avoid the failure, and

(c) where P had a reasonable excuse for the failure but the excuse has ceased, P is to be treated as having continued to have the excuse if the failure is remedied without unreasonable delay after the excuse ceased.

Penalty for failure to keep and preserve records

54 Penalty for failure to keep and preserve records

(1) A person (“P”) who fails to comply with section 28 in relation to a return is liable to a penalty as determined by a relevant local authority, subject to the following exception.

(2) No penalty is incurred if the relevant local authority is satisfied that any facts that it reasonably requires to be proved, and that would have been proved by the records, are proved by other documentary evidence provided to the authority.

55 Reasonable excuse for failure to keep and preserve records

(1) If P satisfies the relevant local authority that there is a reasonable excuse for a failure to comply with section 28, liability to a penalty under section 54 does not arise in relation to that failure.

(2) For the purposes of subsection (1)—

(a) an insufficiency of funds is not a reasonable excuse unless attributable to events outside P's control,

(b) where P relies on any other person to do anything, that is not a reasonable excuse unless P took reasonable care to avoid the failure, and

(c) where P had a reasonable excuse for the failure but the excuse has ceased, P is to be treated as having continued to have the excuse if the failure is remedied without unreasonable delay after the excuse ceased.

Penalties for failure to comply or obstruction

56 Penalties for failure to comply or obstruction

(1) This section applies to a person who—

(a) fails to comply with an information notice, or

(b) deliberately obstructs an authorised officer or a person authorised by the officer in the course of an inspection.

(2) The person is liable to a penalty as determined by a relevant local authority.

(3) The reference to a person who fails to comply with an information notice includes a person who conceals, destroys or otherwise disposes of (or arranges for the concealment, destruction or disposal of) a document in breach of section 60 or section 61.

57 Daily default penalties for failure to comply or obstruction

(1) This section applies if the failure or obstruction mentioned in section 56(1) continues after the date on which a penalty is imposed under that section in respect of the failure or obstruction.

(2) The person is liable to a further penalty or penalties as determined by a relevant local authority for each subsequent day on which the failure or obstruction continues.

58 Reasonable excuse for failure to comply or obstruction

(1) Liability to a penalty under section 56 or 57 does not arise if the person satisfies the relevant local authority that there is a reasonable excuse for the failure or the obstruction of an authorised officer or of a person authorised by the officer.

(2) For the purposes of this section—

(a) an insufficiency of funds is not a reasonable excuse unless attributable to events outside the person's control,

(b) where the person relies on another person to do anything, that is not a reasonable excuse unless the first person took reasonable care to avoid the failure or obstruction, and

(c) where the person had a reasonable excuse for the failure or obstruction but the excuse has ceased, the person is to be treated as having continued to have the excuse if the failure is remedied, or the obstruction stops, without unreasonable delay after the excuse ceased.

Penalties for inaccurate information or documents

59 Penalties for inaccurate information or documents

(1) This section applies if—

(a) in complying with an information notice, a person provides inaccurate information or produces a document that contains an inaccuracy, and

(b) condition A, B or C is met.

(2) Condition A is that the inaccuracy is careless or deliberate.

(3) An inaccuracy is careless if it is due to a failure by the person to take reasonable care.

(4) Condition B is that the person knows of the inaccuracy at the time the information is provided or the document produced but does not inform the relevant local authority at that time.

(5) Condition C is that the person—

(a) discovers the inaccuracy some time later, and

(b) fails to take reasonable steps to inform the relevant local authority.

(6) The person is liable to a penalty as determined by a relevant local authority.

(7) Where the information or document contains more than one inaccuracy, a penalty is payable for each inaccuracy.

Concealing, destroying etc. documents

60 Concealing, destroying etc. documents following information notice

(1) A person must not conceal, destroy or otherwise dispose of (or arrange for the concealment, destruction or disposal of) a document that is the subject of an information notice addressed to the person, unless subsection (2) or (3) applies.

(2) Subsection (1) does not apply if the person acts after the document has been produced to an authorised officer in accordance with the information notice, unless an authorised officer has notified the person that the document must continue to be available for inspection (and has not withdrawn the notification).

(3) Subsection (1) does not apply, in a case to which section 33 applies, if the person acts after the expiry of the period of 6 months beginning with the day on which a copy of the document was produced in accordance with that section unless, before the expiry of that period, an authorised officer made a request for the original document under section 33(2)(b).

61 Concealing, destroying etc. documents following information notification

(1) A person must not conceal, destroy or otherwise dispose of (or arrange for the concealment, destruction or disposal of) a document if an authorised officer has notified the person that the document is to be, or is likely to be, the subject of an information notice addressed to that person, unless subsection (2) applies.

(2) Subsection (1) does not apply if—

(a) at least 6 months has expired since the person was (or was last) so notified, or

(b) an information notice has been given to the person requiring the document to be produced.

Assessment and enforcement of penalties

62 Assessment of penalties

(1) Subsection (2) applies where—

(a) a person becomes liable for a penalty under this Chapter, and

(b) the relevant local authority decides to impose a penalty in respect of that liability.

(2) The relevant local authority must—

(a) assess the penalty, and

(b) notify the person.

(3) An assessment of a penalty under this Chapter must be made within the period of 12 months beginning with the date on which the person became liable to the penalty, subject to subsections (4) and (5).

(4) In a case involving an information notice against which a person may appeal, an assessment of a penalty under section 56 or 57 must be made within the period of 12 months beginning with the latest of the following—

(a) the date on which the person became liable to the penalty,

(b) the end of the period in which notice of an appeal against the information notice could have been given, and

(c) if notice of such an appeal is given, the date on which the appeal is determined or withdrawn.

(5) An assessment of a penalty under section 59 must be made—

(a) within the period of 12 months beginning with the date on which the inaccuracy first came to the attention of an authorised officer, and

(b) within the period of 6 years beginning with the date on which the person became liable to the penalty.

63 Enforcement of penalties

A penalty under this Chapter must be paid before the end of the period of 30 days beginning with the date on which the notification under section 62 was issued.

64 Failure to comply with time limit

A failure by a person to do anything required to be done within a limited period of time, does not give rise to liability to a penalty under section 56 or 57 if the person did it within such further time (if any) as an authorised officer may have allowed.

65 Power of local authorities to reduce, suspend or waive penalties

(1) A relevant local authority may reduce a penalty under this Chapter if it considers it appropriate to do so because of special circumstances.

(2) In subsection (1), “special circumstances” does not include ability to pay.

(3) In subsection (1), the reference to reducing a penalty includes a reference to—

(a) waiving a penalty entirely,

(b) suspending a penalty, and

(c) agreeing a compromise in relation to proceedings for a penalty.

(4) In this section, references to a penalty include references to any interest in relation to the penalty.

Interest

66 Interest on unpaid levy

(1) Interest is payable on the amount of any unpaid levy from the day after the date on which the levy must be paid in accordance with section 29(2).

(2) If an amount is paid to the relevant local authority in respect of the unpaid levy, the amount on which interest is payable is reduced by that amount.

(3) Interest under this section is calculated at the rate specified in provision made under section 68.

67 Interest on penalties

(1) Interest is payable on the amount of any unpaid penalty from the date on which the penalty is due to be paid until it is paid.

(2) Interest under this section is calculated at the rate specified in provision made under section 68.

68 Rate of interest

(1) The rate of interest that applies for the purposes of sections 66 and 67 is the rate specified by the Scottish Ministers in regulations.

(2) Regulations under subsection (1) may—

(a) provide for different rates for different penalties,

(b) provide for circumstances in which alteration of a rate of interest is or is not to take place,

(c) provide that alterations of rates are to have effect for periods beginning on or after a day determined in accordance with the regulations in relation to interest running from before that day, as well as from, or from after, that day.

(3) Regulations under subsection (1) are subject to the negative procedure.

Power to change penalty provisions

69 Power to change penalty provisions

(1) The Scottish Ministers may by regulations make further provision about penalties under this Part.

(2) Provision under subsection (1) includes provision—

(a) about the circumstances in which a penalty is payable,

(b) about the amounts of penalties,

(c) about the procedure for issuing penalties,

(d) about enforcing penalties.

(3) Regulations under subsection (1) may not create criminal offences.

(4) Regulations under subsection (1) may modify any enactment, including this Act.

(5) Regulations under subsection (1) do not apply to a failure which began before the date on which the regulations come into force.

(6) Regulations under subsection (1) are subject to the affirmative procedure.