RSTP7004 - Claim for tax to be repaid or discharged if an order changing the tax basis is not approved

You can make a claim to us for an amount of tax (and any related penalties or interest) to be repaid or discharged where a ‘relevant order’ (see the table further below) which takes effect immediately ceases to have effect because it is not approved by the Scottish Parliament within 28 days of it being made, and either:

• the amount you have paid (including under a contract settlement – see RSTP5002) would not have been payable but for the order; or
• we have made an assessment or determination against you in relation to that amount, and the amount would not have been chargeable but for the order.

A penalty or interest is related to the amount of tax in the claim to the extent that it is both attributable to the amount and it would not have been incurred but for the relevant order.

Any claim for repayment made in this instance which relates to an amount paid under a contract settlement must be made by the person who is liable to pay under the contract settlement (the claimant), whether or not this was the person whose tax liability was covered by the agreement (the taxpayer).

Where such a claim is made which then gives us grounds to make an assessment against the taxpayer (see RSTP1008), any amount repaid to the claimant can be set-off against any amount payable by the taxpayer as a result of the assessment. The obligations of both us and the taxpayer are discharged to the extent (but only the extent) that one liability is offset by the other.

Making the claim for an amount to be repaid or discharged

You can make the claim by writing to us (clearly marking the letter with ‘Claim for tax to be repaid/discharged' – whichever applies) at the  contact address provided on our website.

You must:

• make the claim within two years of either the filing date (see RSTP1000) or the date on which you made the tax return in question, if it was made after the filing date;
• provide a declaration that all the particulars given in your claim are correctly stated to the best of your information and belief; and
• keep and preserve certain records which may be needed to make a correct and complete claim (see LBTT9001 and SLfT8001). If you fail to keep and preserve these records as required you may be liable to a penalty (see RSTP3002).

Your claim should also:

• state that you are making a claim under section 108 of the Revenue Scotland and Tax Powers Act 2014;
• state the tax and amount that you are seeking to be repaid or discharged;
• state the grounds on which you believe that the you believe that the overpayment has occurred or the amount in the assessment or determination is not chargeable; and
• provide supporting statements, documents and any other information which we might reasonably require to determine whether and, if so, the extent to which the claim is correct.

You can amend your claim by notifying us as above, but also stating the grounds on which you are amending the original claim. No amendment may be made:

• more than 12 months after the day on which the original claim was made; or
• if we give you a notice of enquiry (see RSTP7007), during the period beginning with the day on which that notice is given and ending with the day on which the enquiry is completed.

If we accept your claim, we will:

• repay or discharge the amount as soon as is practicable; and
• if you had already paid the amount which is the subject of the claim, we will repay the amount with interest (see RSTP4004).

We will not accept a claim for repayment of tax unless you provide documentary evidence that the tax has been paid. We can also reject your claim in other circumstances, for example where we believe that to repay the amount would unjustifiably enrich you (see RSTP7005). If we reject your claim, you can give a notice of review (see RSTP6006) or appeal (see RSTP6008) against our decision.   

Once we have received your claim we may decide to:

• open an enquiry in relation to your claim (or amendment of a claim) - see RSTP7007; or
• correct the claim for an obvious error or omission – see RSTP7008.

If the claim contains a careless or deliberate inaccuracy which amounts to, or leads to, a false or inflated claim for relief or repayment then you may be liable to a penalty. See RSTP3011 for further guidance.

Special rules regarding partnerships

If the amount of tax in question was originally paid by a person acting in the capacity of a responsible partner or representative partner, a claim for repayment of that amount can only be made by a responsible partner who is nominated to do so by all of the responsible partners who would have been liable to pay the amount had it been due.

If we made the assessment or determination in relation to a person acting in the capacity of a responsible partner or representative partner, any claim for an amount of tax to be discharged can only be made by a responsible partner who is nominated to do so by all of the responsible partners who would have been liable to pay the amount had the assessment or determination been correctly made.

RSTPA 2014 section 116

Relevant orders applying to this type of claim

All of the relevant orders in the table above make changes to the tax basis set out in the order, and are subject to the provisional affirmative procedure. This means the order takes effect immediately once it is made, which as a result may change your tax liability immediately. If the proposed changes in the order are not approved by the Scottish Parliament within 28 days, then the order falls.

RSTPA 2014 section 108

RSTPA 2014 section 118