Diligence
43.—(1) This regulation applies in respect of Scotland.
(2) Subject to paragraphs (3) and (4) below, where any tax or any sum recoverable as if it were tax is due and has not been paid, the sheriff, on an application by the Commissioners accompanied by a certificate by the Commissioners—
(a)stating that none of the persons specified in the application has paid the tax or other sum due from him;
(b)stating that payment of the amount due from each such person has been demanded from him; and
(c)specifying the amount due from and unpaid by each such person,
shall grant a summary warrant in a form prescribed by Act of Sederunt authorising the recovery by poinding, sale and disposal of proceeds of sale, in accordance with Schedule 5 to the Debtors (Scotland) Act 1987(1), of the amount remaining due and unpaid.
(3) Where—
(a)the amount in relation to which the demand referred to in paragraph (1) above has been made is not an amount assessed under section 56(1) of the Act upon failure to make a return; and
(b)the Commissioners may be required under section 59 of the Act to review a decision which, if that decision were varied or withdrawn, would cause the amount in relation to which the demand has been made to be reduced or extinguished,
no application for a summary warrant under paragraph (2) above shall be made before the last day on which the person who is liable to pay the amount concerned is required, by rules made under paragraph 9 of Schedule 8 to the Value Added Tax Act 1983, to serve a notice of appeal with respect to that decision.
(4) Any application under paragraph (2) above, and any certificate required to accompany such an application, shall be made by a Collector or an officer of rank not below that of Higher Executive Officer.
(5) Subject to paragraph (6) below, and without prejudice to paragraphs 25 to 34 of Schedule 5 to the Debtors (Scotland) Act 1987, the sheriff officer’s fees, together with the outlays necessarily incurred by him, in connection with the execution of a summary warrant shall be chargeable against the debtor.
(6) No fee shall be chargeable by the sheriff officer against the debtor for collecting and accounting to the Commissioners for, sums paid to him by the debtor in respect of the amount owing.
(7) Where, during the course of a poinding and sale in accordance with Schedule 5 to the Debtors (Scotland) Act 1987, the Commissioners are entitled as a creditor to do any act, then any such act, with the exception of the exercise of the power contained in paragraph 18(3) of that Schedule, shall be done by a Collector or an officer of rank not below that of Higher Executive Officer.