36(1)In this paragraph “enabler penalty proceedings” means proceedings before a court or tribunal in connection with a penalty under paragraph 1.U.K.
(2)In determining in enabler penalty proceedings any question whether tax arrangements to which the penalty relates were abusive, the court or tribunal—
(a)must take into account the relevant Panel opinion, and
(b)may also take into account any matter mentioned in sub-paragraph (4).
(3)In sub-paragraph (2)(a) “the relevant Panel opinion” means the opinion of the GAAR Advisory Panel which under this Part of this Schedule was required to be considered by a designated HMRC officer in deciding whether the penalty should be assessed.
(4)The matters mentioned in sub-paragraph (2)(b) are—
(a)guidance, statements or other material (whether of HMRC, a Minister of the Crown or anyone else) that was in the public domain at the time the arrangements were entered into, and
(b)evidence of established practice at that time.