It means that HMRC has no cause to issue an APN - at the moment.
If the scheme has been disclosed but the number has been missed from the initial list, a revised list is due out in October. If it's on that list, then an APN may be on its way.
If the scheme was disclosed but HMRC has withdrawn the SRN I think again, they are unable to issue an APN unless they manage to reinstate a SRN (and as far as I'm aware there is no mechanism for that).
If the scheme has not been disclosed then (subject to the caveat below) one of the key conditions required for an APN to be issued is not present and therefore APN's cannot be issued until either a Follower Notice was issued, or some action taken under the GAAR.
It's difficult to see that a Follower Notice is appropriate as there are no cases that seem close enough in fact pattern and which have become final in Court.
GAAR is untested. To my knowledge there are no cases sufficiently advanced for GAAR counteraction and I can't see that this scheme would be the headline first target that HMRC want.
The caveat is that HMRC are making noises about schemes that are "notifiable" rather than "notified". It's not clear whether they will seek to make more of this difference but again if they do, I can foresee some form of legal challenge.
In summary - no APN until some further action is taken by HMRC.
This does not preclude HMRC from issuing an assessment to users. However an assessment can be appealed against and a request made for the tax to be postponed pending settlement of the technical/legal issues. That appeal and postponement is not available against APN's. It also means that the time required to collate information, calculate and issue an assessment is considerably longer than that needed for an APN. (In a recent case it took HMRC 5 years from becoming aware that a taxpayer used a particular scheme where they had the financial data to issue an assessment).
If the scheme has been disclosed but the number has been missed from the initial list, a revised list is due out in October. If it's on that list, then an APN may be on its way.
If the scheme was disclosed but HMRC has withdrawn the SRN I think again, they are unable to issue an APN unless they manage to reinstate a SRN (and as far as I'm aware there is no mechanism for that).
If the scheme has not been disclosed then (subject to the caveat below) one of the key conditions required for an APN to be issued is not present and therefore APN's cannot be issued until either a Follower Notice was issued, or some action taken under the GAAR.
It's difficult to see that a Follower Notice is appropriate as there are no cases that seem close enough in fact pattern and which have become final in Court.
GAAR is untested. To my knowledge there are no cases sufficiently advanced for GAAR counteraction and I can't see that this scheme would be the headline first target that HMRC want.
The caveat is that HMRC are making noises about schemes that are "notifiable" rather than "notified". It's not clear whether they will seek to make more of this difference but again if they do, I can foresee some form of legal challenge.
In summary - no APN until some further action is taken by HMRC.
This does not preclude HMRC from issuing an assessment to users. However an assessment can be appealed against and a request made for the tax to be postponed pending settlement of the technical/legal issues. That appeal and postponement is not available against APN's. It also means that the time required to collate information, calculate and issue an assessment is considerably longer than that needed for an APN. (In a recent case it took HMRC 5 years from becoming aware that a taxpayer used a particular scheme where they had the financial data to issue an assessment).
Comment