Finance (No. 2) Act 2023

Penalties for errors U.K.

5 (1) Schedule 24 to FA 2007 (penalties for errors) is amended as follows.

(2) In Part 1 (liability for penalty), after paragraph 3B insert—

“Errors related to transfer pricing records

3C (1) This paragraph applies where—

(a) a document of a kind listed in the Table in paragraph 1 relating to a relevant tax period is given to HMRC by a person (“P”),

(b) the document contains an inaccuracy—

(i) which falls within paragraph 1(2), and

(ii) which involves the calculation of profits or losses in accordance with Part 4 of TIOPA 2010 (transfer pricing) for the purposes of that period, and

(c) the relevant person (whether or not P) failed to comply, in relation to specified relevant transfer pricing records that relate to the inaccuracy, with one or more of—

(i) section 12B of TMA 1970 (records to be kept for the purposes of returns),

(ii) paragraph 21 of Schedule 18 to FA 1998 (duty to keep and preserve records), and

(iii) an information notice (within the meaning of Schedule 36 to FA 2008 (information and inspection powers)).

(2) It is to be presumed that the inaccuracy was careless, within the meaning of paragraph 3, unless—

(a) the inaccuracy was deliberate on P’s part, or

(b) P satisfies HMRC or (on an appeal notified to the tribunal) the tribunal that P took reasonable care to avoid the inaccuracy.

(3) Sub-paragraphs (4) to (6) apply for the purposes of this paragraph.

(4) “Relevant person”, in relation to a document of a kind listed in the Table in paragraph 1, means—

(a) the person to whose tax liability the document relates,

(b) in the case of a return under section 8A of TMA 1970 (trustee's return), a relevant trustee (within the meaning of that Act), or

(c) in the case of a partnership return, or a statement, declaration or accounts in connection with a partnership return, a person who was required by a notice under section 12AA of TMA 1970 (partnership return) to make and deliver a return in respect of relevant tax period.

(5) “Relevant tax period” means a tax period—

(a) in respect of which—

(i) the person mentioned in sub-paragraph (4)(a),

(ii) in the case mentioned in sub-paragraph (4)(b), the trustees of the trust concerned, or

(iii) in the case mentioned in sub-paragraph (4)(c), the partnership to which the partnership return relates,

together with one or more other enterprises, constitutes an MNE Group within the meaning of the Taxes (Base Erosion and Profit Shifting) (Country-by-Country Reporting) Regulations 2016 (S.I. 2016/237) (see regulation 2(3) of those Regulations), and

(b) in respect of which the MNE Group meets the threshold requirement within the meaning of those Regulations (see regulations 3(2) to (4) of those Regulations).

(6) Records are “specified relevant transfer pricing records” if—

(a) they are relevant transfer pricing records specified, or of a description specified, in regulations under section 12B of TMA 1970 or paragraph 21 of Schedule 18 to FA 1998 (duties to keep and preserve records), and

(b) the relevant person is required to keep and preserve those records under either or both of those provisions.”

(3) In Part 4 (miscellaneous), in paragraph 18 (agency), in sub-paragraph (6)—

(a) for “Paragraph 3A applies” substitute “Paragraphs 3A and 3C apply”;

(b) for “it applies” substitute “they apply”.