40Recovery of top-up payments in other casesU.K.
(1)If—
(a)a top-up payment is made into a childcare account, and
(b)the account-holder is not entitled to the top-up payment,
the account-holder is liable to pay HMRC an amount equal to the amount of the top-up payment.
(2)If—
(a)a person who holds a childcare account causes or permits a prohibited payment to be made from the account, and
(b)at the time of the payment the person knew, or ought to have known, that the payment was a prohibited payment,
the person is liable to pay HMRC an amount not exceeding the top-up element of the prohibited payment.
(3)If a person fails to make a payment in accordance with a requirement imposed by subsections (1) to (3) of section 23 (refunds of payments made from childcare accounts), the person is liable to pay HMRC the top-up element of the payment.
(4)If a prohibited payment is made to a person from a childcare account as a result of the dishonesty of that or some other person, each of those persons is liable to pay HMRC the top-up element of the prohibited payment.
(5)Where—
(a)a body corporate is liable under subsection (3) or (4) to pay an amount to HMRC, and
(b)the liability is attributable (wholly or partly) to the dishonesty of a person falling within subsection (6),
that person (as well as the body corporate) is liable to pay that amount to HMRC.
(6)The persons are—
(a)a director, manager, secretary or similar officer of the body corporate;
(b)any person who was purporting to act in such a capacity.
(7)Where the affairs of a body corporate are managed by its members, subsection (5) applies in relation to the acts and defaults of a member, in connection with that management, as if the member were a director of the body corporate.
(8)Where—
(a)a Scottish firm is liable under subsection (3) or (4) to pay an amount to HMRC, and
(b)the liability is attributable (wholly or partly) to the dishonesty of a partner of the firm or a person purporting to act as such a partner,
that person (as well as the firm) is liable to pay that amount to HMRC.
(9)For provision about calculating the top-up element of a payment, see section 21.
Commencement Information
I1S. 40 in force at 14.11.2016 for the purposes of the trial by S.I. 2016/1083, reg. 2(f)
I2S. 40 in force at 21.4.2017 in so far as not already in force by S.I. 2017/578, reg. 3(d)