Background

The parties

(a)        MoD – the vendor.

(b)        The Appellant – the purchaser, a company incorporated in Guernsey and which is now resident in Jersey. It is a special purpose acquisition subsidiary brought into existence for the purpose of acquiring the Property.

(c)        Qatari Bank Masraf al Rayan ("MAR") – a Qatari financial institution, specialising in Islamic finance, which provided and syndicated the finance for the purchase of the Property.

(a)        Qatari Diar Real Estate Investment Company ("QD") – a Qatari incorporated and resident company owned by Qatari Investment Authority, a sovereign wealth fund owned by the Qatari government (and ultimately, therefore, by the Qatari ruling family).  As we shall see, QD was a founding minority shareholder in MAR.

(b)        CPC Group Limited ("CPC") – a partner in the joint-venture with QD, but otherwise unrelated to it.

(c)        Roseglen Limited ("Roseglen") – a Guernsey Inc and resident company: a member of the Project Blue group.

(d)        Project Blue Guernsey Holdings Limited ("PBGHL") – a Guernsey Inc and resident joint-venture company within the Project Blue group.

Transaction steps in outline

(1)        the Appellant sub-sold the freehold of the Property to MAR ("Step 2")

(2)        MAR agreed to lease the Property back to the Appellant for the finance period ("Step 3").

(1)        MAR and the Appellant entered into put and call options respectively requiring or entitling the Appellant to repurchase the freehold of the Property at the end of the finance period ("Step 4").

(2)        The MOD conveyed the freehold of the Property to the Appellant ("Step 5").

(3)        At the same time as, and in connection with Step 5, the Appellant conveyed the freehold in the Property to MAR ("Step 6").

(4)        Immediately after Step 6, MAR leased the Property back to the Appellant for the required finance period ("Step 7").

Outline of the dispute

(1)         sub-sale relief under section 45(3) FA 2003 applied to Steps 1, 2, 5 and 6 above;

(2)        alternative finance relief under section 71A FA 2003 applied to the transactions at Steps 2, 3, 6 and 7 above.

(3)        Section 75A FA 2003 applied to none of the above Steps.

The Appeal

"I have amended your SDLT return to reflect my conclusion.

·        It previously showed that you were due to pay £0 tax.

·        It now shows that you are due to pay £38,360,000.

·        The difference is £38,360,000."

The evidence

The relevant statutory provisions

The transactions in detail

(1)        the Appellant entered into a contract with MAR (the "Sale Agreement") for the sale of the Property for a price of US $2,467,875,000 to be paid as set out in clause 4 of the contract, part being payable to the MoD at the request and direction of the Appellant and the remainder to the Appellant itself. The First Tranche of US dollars 757,341,480 was payable on completion date, the Second Tranche of US $378,670,740 was payable on 2 February 2009, the Third Tranche of US $378,670,740 was payable on 1 February 2010 and the Fourth Tranche of US $378,670,740 was payable on 31 January 2011. In addition, there was an SDLT Tranche of US $75,813,120 to be paid at the Appellant's request to discharge any SDLT liability of the Appellant and an Additional Payment Tranche of US $498,708,180 payable at the request of the Appellant in respect of the rent due under the leaseback, fees, transaction costs and professional costs. Clause 7.3.3 provided that MAR was only liable to make future payments if, when such payments fell due, “neither a valid Sale Undertaking Notice nor a valid Purchase Undertaking Notice” had been served. Although the price was expressed in US Dollars, the SDLT1 submitted in respect of the transaction records the consideration payable as being £1.25 billion. The Appellant was not required to transfer the Property otherwise than to MAR and MAR agreed not to sub-sell the Property prior to completion. This transaction was not subject SDLT as it was not substantially performed (section 44 (2) FA 2003).

(2)        The Appellant entered into an agreement for lease (the "agreement for lease") under which MAR would immediately grant a lease back to the Appellant. The form of the lease was set out in a schedule to the agreement. The term of the lease was 999 years and two days ("the financing period") and was to commence on the date of the transfer of the Property by the Appellant to MAR (clause 7). This transaction was not subject SDLT as it was not substantially performed (section 44(2) FA 2003).

(3)        MAR, the Appellant, QD, PBGHL, Roseglen, four arranging banks (BNP Paribas, Calyon Credit Agricole CIB, HSBC Bank Middle East Limited, MAR and Qatar National Bank), HSBC Bank PLC entered into a Common Terms Agreement. Under that agreement the Appellant indemnified, inter-alia, MAR against any SDLT in respect of any Transaction Document (which included the sale and leaseback arrangements i.e. the Shari’a-compliant financing). The Common Terms Agreement contained an acknowledgment by the parties that the Transaction Documents were consistent with Shari’a principles.

(1)        the Appellant entered into to purchase undertakings entitling MAR to sell the Property back to the Appellant at the end of the financing period (the "Put Option") or on the occurrence of certain events (equivalent to a loan default); and

(2)        MAR entered into a sale undertaking, entitling the Appellant to buy back the Property at the end of the financing period or at any time if the notice was given, provided that notice had not already been given by MAR under one of the purchase undertakings (the "Call Option"). The effect of the Call Option was that, in order for the Appellant to acquire the freehold reversion from MAR, it would have to pay a sum equal to the price paid to date by MAR.

(1)        MAR transferred US $789,735,642.50 to the Appellant's Guernsey bank account. Of this amount, US $757,341,480 included the sum that was used by the Appellant to make the first instalment due from the Appellant to the MoD on 31 January 2008. US $27.2 million represented certain fees and other professional expenses; and

(2)        the Appellant paid £191.8 million to the MoD.

"No SDLT is payable by B [the Appellant] on the sale from S [the MoD] by virtue of sub-sale relief under section 45 (3) Finance Act 2003. No SDLT is payable by FI [MAR] on the sale of the Property from B [the Appellant] to FI [MAR] by virtue of alternative property finance relief under section 71A (2) Finance Act 2003."

“In this Part “notifiable arrangements” means any arrangements which—

(a)     fall within any description prescribed by the Treasury by regulations,

(b)     enable, or might be expected to enable, any person to obtain an advantage in relation to any tax that is so prescribed in relation to arrangements of that description, and

(c)     are such that the main benefit, or one of the main benefits, that might be expected to arise from the arrangements is the obtaining of that advantage.”

Land transaction returns

(1)        307388936MC – this return, filed on behalf of the Appellant, related to the completion on 31 January 2008 of the contract between the MoD and the Appellant dated 5 April 2007. The return related to a transaction which was completed at the same time as and in connection with the completion of the contract between the Appellant and MAR and the Appellant considered that no liability to SDLT arose by virtue of section 45(3) FA 2003.

Since HMRC had not prescribed a form of return which catered for the intermediate transaction in a sub-sale, the Appellant filed the SDLT 307388936MC and claimed "other relief" in Box 9.

This was the return that was amended by HMRC's letter of 13 July 2011.

(2)        308727994ME – this return, filed on behalf of MAR, related to the completion on 31 January 2008 of the sale agreement between the Appellant and MAR dated 29 January 2008. Box 10 set out the total consideration for the transaction as £1,250,000,000, which we assume is the sterling equivalent of US $2,467,875,000 as specified in the Sale Agreement.

In Box 9 MAR claimed "Alternative Property Finance Relief" under section 71A FA 2003.

(3)        308876820MQ – this return related to the grant of the lease by MAR to PBDL on 31 January 2008. Box 24 set out the net present value of the rent reserved by the lease, being £1,640,799,863.

In Box in 9 the Appellant claimed "Alternative Property Finance Relief" under section 71 A (3) FA 2003.

(4)        308727494 MV and 308727495MA – the lease  put and call options from the Appellant to PBDL.

Preliminary issues

HMRC's application to amend Statement of Case

Our decision on HMRC's application

The Appellant's application to amend its Notice of Appeal

Our decision on the Appellant's application

Arguments for the Appellant

HMRC amended the wrong return

Section 75A only applies to avoidance transactions

"Although the marginal note to a section cannot control the language used in the section, it is permissible to have regard to it in considering what is the general purpose of the section and the mischief at which it is aimed."

If section 75A applies, is the Appellant the right target?

"By reason only of section 71A"

"This section [section 75A] does not apply where subsection (1) (c) is satisfied only by reason of –

(a) section 71A to 73…

(b)…."

Arguments for HMRC

How did section 75A apply in this case?

Is section 75A engaged?

"I must accept that on my construction of the section, the side note reading "Artificial transactions in land" may, in some cases, be somewhat misleading. I would accept that the transactions involved in the present case cannot on the evidence fairly be described as artificial. Nevertheless, as Lord Upjohn pointed out in R v Schildkamp [1971] AC 1 at 28, "a side-note is a very brief précis of the section and therefore forms a most unsure guide to the construction of the enacting section…"

"It is plain from the authorities... That, although it may be legitimate to look at the side note, nevertheless a side note is a very poor guide and will very rarely throw light on the intention of Parliament. The argument of counsel for the trustees really goes so far as to pray in aid a side note to limit, even qualify, the natural meaning of the words of the subsection. This is seeking, in my judgment, to derive from the side note more than can legitimately be derived from it as a matter of construction."

Identifying P and V

"the acquisition by P of a lease deriving from a freehold owned or formerly owned by V…."

"By reason only of section 71 A"

Was the right return amended?

Appellant's Reply

Discussion

Burden of proof

(1)     In this paragraph any reference to an appeal means an appeal under paragraphs 33(4) or 35(1).

(2)     If, on an appeal notified to the tribunal, the tribunal decides—

(a)     that the appellant is overcharged by a self-assessment; or

(b)     that the appellant is overcharged by an assessment other than a self-assessment,

the assessment shall be reduced accordingly, but otherwise the assessment shall stand good.

(3)     If, on appeal it appears to the tribunal—

(a)     that the appellant is undercharged to stamp duty land tax by a self-assessment; or

(b)     that the appellant is undercharged by an assessment other than a self-assessment,

the assessment shall be increased accordingly.

“AH2135 - ITSA Appeals: Assessments, Amendments and Enquiries: Onus of proof: self-assessment, assessment or partnership statement inadequate

Under TMA70/S50(7) the Commissioners have both the power and the duty to increase a self- assessment or HMRC assessment on appeal where it appears to them that it is inadequate (see Cain v Schofield 34TC364). Similarly, they may increase the amounts contained in a partnership statement if they consider them insufficient.

The statute does not specify who has to show that the assessment etc is inadequate. It follows that the onus of proving that the assessment etc is inadequate must lie on the party who asserts that inadequacy. Usually it will be HMRC who assert that an assessment etc is inadequate. It will therefore be for you to show that the assessment etc should be increased. You will also have to produce evidence as to the amount by which the assessment etc needs to be increased.”

Some general principles of construction relevant to section 75A

1) Purposive or literal construction?

2) Statutory context

"This clause amends Finance Act… 2003 so as to counter schemes which attempt to avoid stamp duty land tax (SDLT)."

"This clause has been introduced to counter avoidance schemes which have been developed to avoid payment of SDLT."

"The clause inserts three new sections after section 75 of FA 2003. The first new section, section 75 A, describes how the anti-avoidance measure works and what sort of transaction it applies to, in particular what sort of scheme transactions it seeks to prevent."

3) Does HMRC have a discretion to levy tax?

"Section 75 A is an anti-avoidance provision. [HMRC] therefore takes the view that it applies only where there is avoidance of tax. On that basis, HMRC will not seek to apply section 75A where it considers transactions have already been taxed appropriately."

"Taxes are imposed on subjects by Parliament. A citizen cannot be taxed unless he is designated in clear terms by a taxing Act as a taxpayer, and the amount of his liability is clearly defined.

A proposition that whether a subject is to be taxed or not, or that, if he is, the amount of his liability is to be decided (even though within a limit) by an administrative body, represents a radical departure from constitutional principle. It may be that the Revenue could persuade Parliament to enact such a proposition in such terms that the courts would have to give effect to it; but unless it has done so, the courts, acting on constitutional principles, not only should not, but cannot validate it.

… When Parliament imposes a tax, it is the duty of the commissioners to assess and levy it on and from those who are liable by law. Of course they may, indeed should, act with administrative common sense. To expend a large amount of tax payers' money in collecting, or attempting to collect, small sums would be an exercise in futility; and no one is going to complain if they bring humanity to bear in hard cases. I accept also that they cannot, in the absence of clear power, tax any given income more than once. But all of this falls far short of saying that so long as they do not exceed a maximum they can decide that beneficiary A is to bear so much tax and no more, or that beneficiary B is to bear no tax.

This would be taxation by self-asserted administrative discretion and not by law. As the judge [Walton J] well said, 'One should be taxed by law, and not be untaxed by concession.' "

4) Section 75C (11) and (12) Finance Act 2003

Construction of Section 75A: specific issues

(a) Relevance of motive

(b) Identifying V and P

"75A Anti-avoidance

(1) This section applies where–

(a) one person (V) disposes of a chargeable interest and another person (P) acquires either it or a chargeable interest deriving from it,

(b) a number of transactions (including the disposal and acquisition) are involved in connection with the disposal and acquisition ("the scheme transactions"), and

(c) the sum of the amounts of stamp duty land tax payable in respect of the scheme transactions is less than the amount that would be payable on a notional land transaction effecting the acquisition of V´s chargeable interest by P on its disposal by V."

(c) Transactions “involved in connection with” the disposal and acquisition

(1)        the comparison transactions taking into account in subsection (1) (c) in determining whether less SDLT has been paid on the notional transaction between V and P;

(2)        the "disregard" of scheme transactions under section 75A(4); and

(3)        the transactions taken into account under section 75A(5) to determine the chargeable consideration on the notional transaction.

(d) Is the SDLT on the scheme transactions less than that payable on the notional transaction by reason only of section 71A?

 "…does not apply where subsection (1) (c) is satisfied only by reason of

 (a) sections 71A to 73…."

The notional land transaction

Chargeable consideration on the notional land transaction

"(a) given by or under half of any one person by way of consideration for the scheme transactions, or

(b) received by or on behalf of V… by way of consideration for the scheme transactions."

"The chargeable consideration for a transaction is, except as otherwise expressly provided, any consideration in money or money's worth given for the subject-matter of the transaction, directly or indirectly by the purchaser or a person connected to him."

Article 14 of the Convention on Human Rights

Have HMRC amended the wrong land transaction return?

"Tax in respect of a land transaction must be paid not later than the filing date for the land transaction return relating to the transaction."

"An enquiry extends to anything contained in the return, or required to be contained in the return, that relates –

(a) to the question whether tax is chargeable in respect of the transaction, or to the amount of tax so chargeable…."

Section 83 Finance Act 2003 – mistakes, defects and omissions

Summary of conclusions

(1)        the Appellant was chargeable to SDLT under section 75A FA 2003 in respect of a notional land transaction;

(2)        the chargeable consideration in respect of the notional land transaction was £1.25 billion;

(3)        the Appellant has not established that its treatment is contrary to Article 14 of the Convention; and

(4)        HMRC did not err in amending the Appellant's land transaction return to reflect the notional land transaction.

Decision

Costs

GUY BRANNAN

TRIBUNAL JUDGE

RELEASE DATE:  5 July 2013

APPENDIX

RELEVANT STATUTORY PROVISIONS

Section 45 Finance Act 2003

Contract and conveyance: effect of transfer of rights

(1) This section applies where—

(a) a contract for a land transaction (“the original contract”) is entered into under which the transaction is to be completed by a conveyance, . . .

(b) there is an assignment, subsale or other transaction (relating to the whole or part of the subject-matter of the original contract) as a result of which a person other than the original purchaser becomes entitled to call for a conveyance to him, and

(c) paragraph 12B of Schedule 17A (assignment of agreement for lease) does not apply.

References in the following provisions of this section to a transfer of rights are to any such assignment, subsale or other transaction, and references to the transferor and the transferee shall be read accordingly.

 (2) The transferee is not regarded as entering into a land transaction by reason of the transfer of rights, but section 44 (contract and conveyance) has effect in accordance with the following provisions of this section.

(3) That section applies as if there were a contract for a land transaction (a “secondary contract”) under which—

(a) the transferee is the purchaser, and

(b) the consideration for the transaction is—

(i) so much of the consideration under the original contract as is referable to the subject-matter of the transfer of rights and is to be given (directly or indirectly) by the transferee or a person connected with him, and

(ii) the consideration given for the transfer of rights.

The substantial performance or completion of the original contract at the same time as, and in connection with, the substantial performance or completion of the secondary contract shall be disregarded except in a case where the secondary contract gives rise to a transaction that is exempt from charge by virtue of subsection 3 of section 73 (alternative property finance: land sold to financial institution and re-sold to individual).

Section 51 Finance Act 2003

 Contingent, uncertain or unascertained consideration

(1) Where the whole or part of the chargeable consideration for a transaction is contingent, the amount or value of the consideration shall be determined for the purposes of this Part on the assumption that the outcome of the contingency will be such that the consideration is payable or, as the case may be, does not cease to be payable.

(2) Where the whole or part of the chargeable consideration for a transaction is uncertain or unascertained, its amount or value shall be determined for the purposes of this Part on the basis of a reasonable estimate.

(3) In this Part—

“contingent”, in relation to consideration, means—

(a) that it is to be paid or provided only if some uncertain future event occurs, or

(b) that it is to cease to be paid or provided if some uncertain future event occurs; and

“uncertain”, in relation to consideration, means that its amount or value depends on uncertain future events.

(4) This section has effect subject to—

section 80 (adjustment where contingency ceases or consideration is ascertained), and

section 90 (application to defer payment in case of contingent or uncertain consideration).

(5) This section applies in relation to chargeable consideration consisting of rent only to the extent that it is applied by paragraph 7 of Schedule 17A.

Section 71 A Finance Act 2003

Alternative property finance: land sold to financial institution and leased to person

(1) This section applies where arrangements are entered into between a person and a financial institution under which—

(a) the institution purchases a major interest in land or an undivided share of a major interest in land (“the first transaction”),

(b) …,

(c) the institution… grants to the person out of the major interest a lease (if the major interest is freehold) …(“the second transaction”), and

(d) the institution and the person enter into an agreement under which the person has a right to require the institution or its successor in title to transfer to the person (in one transaction or a series of transactions) the whole interest purchased by the institution under the first transaction.

(2) The first transaction is exempt from charge if the vendor is—

(a) the person, or

(b) another financial institution by whom the interest was acquired under arrangements of the kind mentioned in subsection (1) entered into between it and the person.

(3) The second transaction is exempt from charge if the provisions of this Part relating to the first transaction are complied with (including the payment of any tax chargeable).

(4) Any transfer to the person that results from the exercise of the right mentioned in subsection (1)(d) (“a further transaction”) is exempt from charge if—

(a) the provisions of this Part relating to the first and second transactions are complied with, and

(b) at all times between the second transaction and the further transaction—

(i) the interest purchased under the first transaction is held by a financial institution so far as not transferred by a previous further transaction, and

(ii) the lease or sub-lease granted under the second transaction is held by the person.

(5) The agreement mentioned in subsection (1)(d) is not to be treated—

(a) as substantially performed unless and until the whole interest purchased by the institution under the first transaction has been transferred (and accordingly section 44(5) does not apply), or

(b) as a distinct land transaction by virtue of section 46 (options and rights of pre-emption).

(6) . . .

(7) A further transaction that is exempt from charge by virtue of subsection (4) is not a notifiable transaction unless the transaction involves the transfer to the [person] of the whole interest purchased by the institution under the first transaction, so far as not transferred by a previous further transaction.

(8) In this section "financial institution" has the meaning given by section 46 of the Finance Act 2005 (alternative finance arrangements).

(9) ...,

(10) ….

Section 75A – C Finance Act 2003

75A Anti-avoidance

(1) This section applies where–

(a) one person (V) disposes of a chargeable interest and another person (P) acquires either it or a chargeable interest deriving from it,

(b) a number of transactions (including the disposal and acquisition) are involved in connection with the disposal and acquisition ("the scheme transactions"), and

(c) the sum of the amounts of stamp duty land tax payable in respect of the scheme transactions is less than the amount that would be payable on a notional land transaction effecting the acquisition of V´s chargeable interest by P on its disposal by V.

(2) In subsection (1) "transaction" includes, in particular–

(a) a non-land transaction,

(b) an agreement, offer or undertaking not to take specified action,

(c) any kind of arrangement whether or not it could otherwise be described as a transaction, and

(d) a transaction which takes place after the acquisition by P of the chargeable interest.

(3) The scheme transactions may include, for example–

(a) the acquisition by P of a lease deriving from a freehold owned or formerly owned by V;

(b) a sub-sale to a third person;

(c) the grant of a lease to a third person subject to a right to terminate;

(d) the exercise of a right to terminate a lease or to take some other action;

(e) an agreement not to exercise a right to terminate a lease or to take some other action;

(f) the variation of a right to terminate a lease or to take some other action.

(4) Where this section applies–

(a) any of the scheme transactions which is a land transaction shall be disregarded for the purposes of this Part, but

(b) there shall be a notional land transaction for the purposes of this Part effecting the acquisition of V´s chargeable interest by P on its disposal by V.

(5) The chargeable consideration on the notional transaction mentioned in subsections (1)(c) and (4)(b) is the largest amount (or aggregate amount)–

(a) given by or on behalf of any one person by way of consideration for the scheme transactions, or

(b) received by or on behalf of V (or a person connected with V within the meaning of section 839 of the Taxes Act 1988) by way of consideration for the scheme transactions.

(6) The effective date of the notional transaction is–

(a) the last date of completion for the scheme transactions, or

(b) if earlier, the last date on which a contract in respect of the scheme transactions is substantially performed.

(7) This section does not apply where subsection (1)(c) is satisfied only by reason of–

(a) sections 71A to 73, or

(b) a provision of Schedule 9.

75B Anti-avoidance: incidental transactions

(1) In calculating the chargeable consideration on the notional transaction for the purposes of section 75A(5), consideration for a transaction shall be ignored if or in so far as the transaction is merely incidental to the transfer of the chargeable interest from V to P.

(2) A transaction is not incidental to the transfer of the chargeable interest from V to P–

(a) if or in so far as it forms part of a process, or series of transactions, by which the transfer is effected,

(b) if the transfer of the chargeable interest is conditional on the completion of the transaction, or

(c) if it is of a kind specified in section 75A(3).

(3) A transaction may, in particular, be incidental if or in so far as it is undertaken only for a purpose relating to–

(a) the construction of a building on property to which the chargeable interest relates,

(b) the sale or supply of anything other than land, or

(c) a loan to P secured by a mortgage, or any other provision of finance to enable P, or another person, to pay for part of a process, or series of transactions, by which the chargeable interest transfers from V to P.

(4) In subsection (3)–

(a) paragraph (a) is subject to subsection (2)(a) to (c),

(b) paragraph (b) is subject to subsection (2)(a) and (c), and

(c) paragraph (c) is subject to subsection (2)(a) to (c).

(5) The exclusion required by subsection (1) shall be effected by way of just and reasonable apportionment if necessary.

(6) In this section a reference to the transfer of a chargeable interest from V to P includes a reference to a disposal by V of an interest acquired by P.

75C Anti-avoidance: supplemental

(1) A transfer of shares or securities shall be ignored for the purposes of section 75A if but for this subsection it would be the first of a series of scheme transactions.

(2) The notional transaction under section 75A attracts any relief under this Part which it would attract if it were an actual transaction (subject to the terms and restrictions of the relief).

(3) The notional transaction under section 75A is a land transaction entered into for the purposes of or in connection with the transfer of an undertaking or part for the purposes of paragraphs 7 and 8 of Schedule 7, if any of the scheme transactions is entered into for the purposes of or in connection with the transfer of the undertaking or part.

(4) In the application of section 75A(5) no account shall be taken of any amount paid by way of consideration in respect of a transaction to which any of sections 60, 61, 63, 64, 65, 66, 67, 69, 71, 74 and 75, or a provision of Schedule 6A or 8, applies.

(5) In the application of section 75A(5) an amount given or received partly in respect of the chargeable interest acquired by P and partly in respect of another chargeable interest shall be subjected to just and reasonable apportionment.

(6) Section 53 applies to the notional transaction under section 75A.

(7) Paragraph 5 of Schedule 4 applies to the notional transaction under section 75A.

(8) For the purposes of section 75A–

(a) an interest in a property-investment partnership (within the meaning of paragraph 14 of Schedule 15) is a chargeable interest in so far as it concerns land owned by the partnership, and

(b) where V or P is a partnership, Part 3 of Schedule 15 applies to the notional transaction as to the transfer of a chargeable interest from or to a partnership.

(9) For the purposes of section 75A a reference to an amount of consideration includes a reference to the value of consideration given as money´s worth.

(10) Stamp duty land tax paid in respect of a land transaction which is to be disregarded by virtue of section 75A(4)(a) is taken to have been paid in respect of the notional transaction by virtue of section 75A(4)(b).

(11) The Treasury may by order provide for section 75A not to apply in specified circumstances.

(12) An order under subsection (11) may include incidental, consequential or transitional provision and may make provision with retrospective effect."

(2) The amendment made by subsection (1) has effect in respect of disposals and acquisitions if the disposal mentioned in new section 75A(1)(a) (inserted by that subsection) takes place on or after 6th December 2006.

(3) But–

(a) the transitional provisions of sub-paragraphs (2) to (5) of paragraph 1 of the Schedule to the Stamp Duty Land Tax (Variation of the Finance Act 2003) Regulations 2006 (S.I. 2006/3237) continue to have effect in relation to this section as in relation to that paragraph, and

(b) a provision of new section 75C (inserted by subsection (1) above) shall not have effect where the disposal mentioned in new section 75A(1)(a) took place before the day on which this Act is passed, if or in so far as the provision would make a person liable for a higher amount of tax than would have been charged in accordance with those regulations.

Section 76 Finance Act 2003

 Duty to deliver land transaction return

(1) In the case of every notifiable transaction the purchaser must deliver a return (a “land transaction return”) to the Inland Revenue before the end of the period of 30 days after the effective date of the transaction.

(2) The Inland Revenue may by regulations amend subsection (1) so as to require a land transaction return to be delivered before the end of such shorter period after the effective date of the transaction as may be prescribed or, if the regulations so provide, on that date.

(3) A land transaction return in respect of a chargeable transaction must—

(a) include an assessment (a “self-assessment”) of the tax that, on the basis of the information contained in the return, is chargeable in respect of the transaction, . . .

(b) . . ..

Section 77 Finance Act 2003 (substituted by section 94 (1) Finance Act 2008 with effect in relation to transactions with an effective date on or after 12 March 2008)

Notifiable transactions

(1) A land transaction is notifiable if it is—

(a) an acquisition of a major interest in land that does not fall within one or more of the exceptions in section 77A,

(b) an acquisition of a chargeable interest other than a major interest in land where there is chargeable consideration in respect of which tax is chargeable at a rate of 1% or higher or would be so chargeable but for a relief,

(c) a land transaction that a person is treated as entering into by virtue of section 44A(3), or

(d) a notional land transaction under section 75A.

(2) This section has effect subject to—

(a) sections 71A(7) . . ., and

(b) paragraph 30 of Schedule 15.

(3) In this section “relief” does not include an exemption from charge under Schedule 3.

Section 78 Finance Act 2003

Returns, enquiries, assessments and related matters

(1) Schedule 10 has effect with respect to land transaction returns, assessments and related matters.

(2) In that Schedule—

Part 1 contains general provisions about returns;

Part 2 imposes a duty to keep and preserve records;

Part 3 makes provision for enquiries into returns;

Part 4 provides for a Revenue determination if no return is delivered;

Part 5 provides for Revenue assessments;

Part 6 provides for relief in case of excessive assessment; and

Part 7 provides for appeals against Revenue decisions on tax.

(3) The Treasury may by regulations make such amendments of that Schedule, and such consequential amendments of any other provisions of this Part, as appear to them to be necessary or expedient from time to time.

Section 80 Finance Act 2003

Adjustment where contingency ceases or consideration is ascertained

(1) Where section 51 (contingent, uncertain or unascertained consideration) applies in relation to a transaction and—

(a) in the case of contingent consideration, the contingency occurs or it becomes clear that it will not occur, or

(b) in the case of uncertain or unascertained consideration, an amount relevant to the calculation of the consideration, or any instalment of consideration, becomes ascertained,

the following provisions have effect to require or permit reconsideration of how this Part applies to the transaction (and to any transaction in relation to which it is a linked transaction).

(2) If the effect of the new information is that a transaction becomes notifiable . . ., or that additional tax is payable in respect of a transaction or that tax is payable where none was payable before—

(a) the purchaser must make a return to the Inland Revenue within 30 days,

(b) the return must contain a self-assessment of the tax chargeable in respect of the transaction on the basis of the information contained in the return,

(c) the tax so chargeable is to be calculated by reference to the rates in force at the effective date of the transaction, and

[(d) the tax or additional tax payable must be paid not later than the filing date for the return].

(3) The provisions of Schedule 10 (returns, enquiries, assessments and other matters) apply to a return under this section as they apply to a [return under section 76 (general requirement to make land transaction return), subject to the adaptation that references to the effective date of the transaction shall be read as references to the date of the event as a result of which the return is required].

(4) If the effect of the new information is that less tax is payable in respect of a transaction than has already been paid—

(a) the purchaser may, within the period allowed for amendment of the land transaction return, amend the return accordingly;

(b) after the end of that period he may (if the land transaction return is not so amended) make a claim to the Inland Revenue for repayment of the amount overpaid.

(4A) Where the transaction (“the relevant transaction”) is the grant or assignment of a lease, no claim may be made under subsection (4)—

(a) in respect of the repayment (in whole or part) of any loan or deposit that is treated by paragraph 18A of Schedule 17A as being consideration given for the relevant transaction, or

(b) in respect of the refund of any of the consideration given for the relevant transaction, in a case where the refund—

(i) is made under arrangements that were made in connection with the relevant transaction, and

(ii) is contingent on the determination or assignment of the lease or on the grant of a chargeable interest out of the lease.

(5) This section does not apply so far as the consideration consists of rent (see paragraph 8 of Schedule 17A).

Section 83 Finance Act 2003

Formal requirements as to assessments, penalty determinations etc

(1) An assessment, determination, notice or other document required to be used in assessing, charging, collecting and levying tax or determining a penalty under this Part must be in accordance with the forms prescribed from time to time by the Board and a document in the form so prescribed and supplied or approved by the Board is valid and effective.

(2) Any such assessment, determination, notice or other document purporting to be made under this Part is not ineffective—