Circumstances under which a referral can be made or withdrawn
If an enquiry into your tax return is in progress (that is, a notice of enquiry has been given and the enquiry has not been completed), any question arising from the subject-matter of your return can be referred to an appropriate tribunal for determination providing you and we agree.
More than one notice of referral to the appropriate tribunal can be given during an enquiry, and either you or we can withdraw the notice of referral at any time.
In most cases the notice of referral must be given to the Tax Chamber of the First-tier Tribunal for Scotland, unless it is determined by or under tribunal rules that the notice is to be given to the Upper Tribunal for Scotland. If the referred question relates to the market value of any land, the notice of referral must be given instead to the Lands Tribunal for Scotland.
Further guidance on how to jointly notify the appropriate tribunal about a referral during an enquiry is available on the Scottish Tribunals website, or you can email the Scottish Tribunals at: email@example.com.
RSTPA 2014 sections 88-89 and 92
Effect of a referral on an enquiry
While proceedings on a referral are in progress (that is, a notice of referral to the tribunal has been given and has not been withdrawn, and the referred question has not been finally determined):
- we cannot give a closure notice in relation to the enquiry (see RSTP1006); and
- you cannot make an application for a direction to give a closure notice (see RSTP1006).
A question is ‘finally determined’ when it has been determined by the appropriate tribunal and there is no further possibility of the determination being varied or set aside (disregarding any power of the tribunal to grant permission for you to give a notice of appeal outside of the normal time limit – see RSTP6008).
RSTPA 2014 section 90
Effect of a determination by the tribunal
A determination by the tribunal on the referred question is binding on both you and us in the same way, and to the same extent, as a decision on a preliminary plea in an appeal. A preliminary plea is a plea-in-law that raises a legal issue that does not relate to the merits of the proceedings but if sustained could result in the proceedings (or a part of them) being dismissed.
We must take the determination into account both in reaching our conclusions on the enquiry, and in formulating any amendments of your tax return that may be required to give effect to these conclusions.
The question which has been determined may not be reopened on an appeal, except to the extent that it could be reopened if it had been determined as a preliminary plea (see above) in that appeal.