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You are here: BAILII >> Databases >> United Kingdom Statutory Instruments >> The Recovery of Duties and Taxes Etc. Due in Other Member States (Corresponding UK Claims, Procedure and Supplementary) Regulations 2004 No. 674 URL: http://www.bailii.org/uk/legis/num_reg/2004/20040674.html

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(a) "the Act" means the Finance Act 2002;

(b) "applicant authority" means an authority in a member State which makes a request for assistance under the Mutual Assistance Recovery Directive;

(c) "authorised official" means an official of an applicant authority authorised by that authority to make requests for assistance in accordance with the Mutual Assistance Recovery Directive;

(d) "the Board" means the Commissioners of Inland Revenue;

(e) "Commission" means the Commission of the European Communities;

(f) "Commissioners" means the Commissioners of Customs and Excise;

(g) "consolidated claim" means several foreign claims recoverable from the same person;

(h) "contested" means an action contesting a foreign claim or the instrument permitting enforcement brought by an interested party before the competent body of the member State in which the applicant authority is situated in accordance with the laws in force there;

(i) "a corresponding UK claim" means a claim in the United Kingdom corresponding to the foreign claim;

(j) "costs" includes fees, charges, disbursements, expenses and remuneration;

(k) "Council Directive 77/388/EEC"[3] means that directive as amended and as last amended by Council Directive 2002/93[4];

(l) "the Directive" means Commission Directive 2002/94/EC[5] laying down detailed rules for implementing certain provisions of the Mutual Assistance Recovery Directive;

(m) "electronic means" has the same meaning as in Article 2(1) of the Directive;

(n) "enforcement action" means action to enforce a foreign claim by way of legal proceedings, distress, diligence or otherwise as might be taken to enforce a corresponding UK claim;

(o) "export duties" has the same meaning as in Article 3 of the Mutual Assistance Recovery Directive;

(p) "instrument permitting enforcement" means - 


(i) any instrument issued by an applicant authority in any member State in relation to a sum claimed by that authority within the jurisdiction of that State; or

(ii) a decision on that claim given in favour of that authority by a court or tribunal or other competent body in that State which permits recovery of that claim in that State or part thereof;



(q) "import duties" has the same meaning as in Article 3 of the Mutual Assistance Recovery Directive;

(r) "precautionary measures" means measures taken, or to be taken, in order to secure recovery of a foreign claim;

(s) "request for assistance" means a request for information, notification, recovery or precautionary measures within the meaning of the Mutual Assistance Recovery Directive.

    (7) An applicant authority may in writing at any time withdraw a request made under this regulation.

Requests for notification of instruments
     5.  - (1) A request for notification of an instrument shall - 

(a) be made in writing in duplicate in the form specified in Annex II to the Directive;

(b) bear the official stamp of the applicant authority;

(c) be signed by an authorised official of that authority;

(d) be accompanied by two copies of the instrument to be notified.

    (2) A request for notification shall relate to a person specified in regulation 4(2).

    (3) The relevant UK authority shall - 

(a) acknowledge receipt of a request for notification in writing not later than seven days after the date of such receipt;

(b) take the necessary measures to effect notification immediately upon receipt of the request for notification in accordance with the law applicable to notification of similar instruments in that part of the UK in which notification is given;

(c) confirm to the applicant authority, as soon as reasonably practicable, the date the instrument was notified to the person concerned by returning a copy of the request form with the certificate on the reverse completed;

(d) not question the validity of the instrument.

    (4) The relevant UK authority may request additional information from the applicant authority for the purposes of effecting notification.

    (5) For the purposes of this regulation "instrument" means any document or decision including those of a judicial nature which emanate from the member State in which the applicant authority is situated and which relate to a foreign claim.

Requests for recovery or precautionary measures
     6.  - (1) A request for recovery or precautionary measures shall - 

(a) be made in writing in the form specified in Annex III to the Directive including a declaration that the conditions of the Mutual Assistance Recovery Directive for initiating a request have been fulfilled;

(b) bear the official stamp of the applicant authority;

(c) be signed by an authorised official of that authority;

(d) relate to a person specified in regulation 4(2); and

(e) be accompanied by an instrument permitting enforcement.

    (2) The amount of the foreign claim stated in the request shall be stated in UK sterling and the currency of the member State in which the applicant authority is situated using the exchange rate specified in regulation 15(2).

    (3) The relevant UK authority shall - 

(a) within seven days of receipt of a request for recovery or precautionary measures - 


(i) acknowledge receipt of the request in writing to the applicant authority;

(ii) make a request in writing to the applicant authority to complete the request if it does not contain the full or complete information required by Article 7 of the Mutual Assistance Recovery Directive;



(b) where it does not take any enforcement action on a request within three months of receipt, not later than seven days from the end of that period inform the applicant authority in writing of the grounds for its failure to comply with the time limit;

(c) within a reasonable time having regard to the particular case, where all or part of the foreign claim cannot be recovered or precautionary measures cannot be taken, so inform the applicant authority, indicating the reasons therefor;

(d) no later than at the end of each six month period following the date of acknowledgement of receipt of the request, inform the applicant authority in writing of the status or outcome of any enforcement action;

(e) continue, save where prevented by paragraph 4 of Schedule 39 to the Act, any enforcement action or precautionary measures where a request to do so is made by the applicant authority not later than two months from the date of receipt of the notification of the outcome of that action and such request shall be subject to the provisions in these Regulations which applied to the initial request;

(f) inform the applicant authority immediately any enforcement action has been taken on a request.

    (4) For the purpose of this regulation and regulations 8 to 17 and regulations 20 to 26 a single instrument permitting enforcement which covers more than one foreign claim against a person shall be deemed to constitute a single claim.

    (5) A relevant UK authority shall consult the applicant authority where in recovering a foreign claim it intends to allow the debtor time to pay by arrangement or to make payment by instalments (whether or not interest is charged or to be charged on those arrangements).

    (6) Except where an enactment or rule of law applicable to a corresponding UK claim requires otherwise, a relevant UK authority shall not be obliged to recover a foreign claim where to do so would, because of the situation of the debtor, create serious economic or social difficulties in the United Kingdom.

Transfer of sums recovered
     7.  - (1) Subject to paragraph (3) the relevant UK authority shall transfer in UK sterling to the applicant authority any sum recovered in respect of a foreign claim not later than one month from the date upon which recovery was effected.

    (2) For the purposes of this regulation "sum" shall include any interest including interest charged in the UK.

    (3) The relevant UK authority and the applicant authority may agree different arrangements for the transfer of an amount where that amount is less than 1500 Euro.

    (4) For the purpose of satisfying a request for recovery any sum recovered shall be deemed to have been recovered in proportion to the foreign claim as expressed in UK sterling.

Contested recovery
     8.  - (1) Any enactment permitting proceedings for the recovery of or precautionary measures in relation to a corresponding UK claim shall apply to a foreign claim which is contested.

    (2) This regulation shall not apply to agricultural levies of the European Community.

Notice of inability to take action or proceedings upon a request for recovery of a contested claim
     9.  - Where, in accordance with paragraph 4 of Schedule 39 to the Act, the relevant UK authority is not permitted to take action for recovery or for a precautionary measure it shall, in writing, advise the competent authority of the reasons within one month of the receipt of the notification by the applicant authority that the foreign claim or instrument permitting enforcement is contested.

Notice of action contesting recovery
     10.  - The relevant UK authority shall notify the applicant authority in writing of any notice of commencement of action in the UK by a person specified in regulation 4(2) for reimbursement of sums recovered or for compensation in relation to recovery of a contested claim.

Reimbursement of sums recovered and compensation
     11.  - Where the result of contesting a foreign claim or instrument permitting enforcement is favourable to the debtor, the applicant authority shall be liable for the reimbursement of any sums recovered, together with any compensation due, in accordance with any law in force in the relevant part of the UK applicable to the corresponding UK claim.

Reimbursement arrangements
     12.  - Where recovery of a foreign claim poses a specific problem, entails a very large amount in costs or relates to the fight against organised crime the relevant UK authority and the applicant authority may agree reimbursement arrangements specific to the case in question.

Notice of cancellation or payment of a claim
     13.  - Where the relevant UK authority undertakes enforcement action or precautionary measures in relation to that foreign claim it shall, upon receipt of notice in writing from the applicant authority as to - 

(a) payment in satisfaction of that claim; or

(b) cancellation or other reason for termination of that claim;

cease any enforcement action or precautionary measures in relation to that claim.

Adjustment of a foreign claim
     14.  - (1) This regulation applies where the amount of a foreign claim is amended for any reason.

    (2) Where the amendment leads to a reduction in the amount of the foreign claim - 

(a) the relevant UK authority shall continue the action which it has undertaken with a view to recovery or to the taking of precautionary measures, but that action shall be limited to the amount still outstanding;

(b) if at the time the relevant UK authority is informed of the reduction in the amount of the foreign claim, an amount exceeding the amount still outstanding has already been recovered by it but the transfer procedure referred to in regulation 7 has not yet been initiated, the relevant UK authority shall repay the amount overpaid to the person entitled thereto.

    (3) Where the amendment leads to an increase in the amount of the foreign claim - 

(a) the additional request shall as far as possible be dealt with by the relevant UK authority at the same time as the original request;

(b) where, in view of the state of progress of the existing recovery procedure, consolidation of the additional request with the original request is not possible, the relevant UK authority shall be required to comply with the additional request only if it concerns an amount not less than the threshold amount referred to in regulation 15(1).

Minimum amount on requests for assistance
     15.  - (1) A request for assistance shall not be entertained if the foreign claim (whether a single claim or a consolidated claim) is less than 1500 Euro or the sterling equivalent at the time of request.

    (2) The rate of exchange to be used for the purposes of these regulations shall be the latest selling rate recorded on the most representative exchange market or markets of the member State in which the applicant authority is situated on the date when the request for assistance is signed.

Limitation on requests for assistance
     16.  - (1) The relevant UK authority shall not be obliged to entertain a request for assistance if the foreign claim is more than five years old.

    (2) The point for commencement and calculation of a period of five years shall be - 

(a) where a foreign claim is not contested, the date the instrument permitting enforcement was established by the applicant authority in accordance with the law in force in the member State in which that authority is situated; or

(b) where a foreign claim is contested, the date upon which the applicant authority establishes that the claim or instrument permitting recovery is no longer contested.

Acceptance and transmission of communications
     17.  - (1) The relevant UK authority shall, as far as possible, accept and transmit all information required to be communicated in writing for the purposes of the Mutual Assistance Recovery Directive by electronic means.

    (2) Paragraph (1) does not apply to requests for assistance made in accordance with regulations 5 and 6 and the instrument accompanying those requests unless the relevant UK authority and the applicant authority agree to waive paper communication.

Communication of documents and information
     18.  - Documents and information sent to the relevant UK authority pursuant to the Mutual Assistance Recovery Directive may only be communicated by that authority to - 

(a) the person mentioned in the request for assistance;

(b) those persons and authorities responsible for the recovery of the claims, and solely for that purpose; or

(c) the judicial authorities dealing with matters concerning the recovery of claims.

Language requirements
     19.  - (1) Save as otherwise agreed by the relevant UK authority, requests for assistance, the instrument permitting enforcement, and any other relevant document addressed to that authority shall be accompanied by a translation of that document in the English language.

    (2) All information and particulars communicated to an applicant authority by the relevant UK authority in relation to a request for assistance shall be conveyed in the English language or such other language as is agreed by that authority with the applicant authority.

Limitation
     20.  - (1) The period of limitation or prescription in relation to any issue arising on the recovery of any foreign claim shall be that applicable under the laws in force in the member State in which the applicant authority is situated.

    (2) For the purposes of paragraph (1) any step or act taken by the relevant UK authority in recovery of a foreign claim in pursuance of a request for assistance shall be deemed to have been taken in the member State in which the applicant authority is situated where that step or act would, if it had been taken by that applicant authority, have had the effect of suspending or interrupting the period of limitation or prescription in accordance with the laws in force in that member State.

Notice of refusal of requests for assistance
     21.  - (1) Where in accordance with the Mutual Assistance Recovery Directive and the Directive or these Regulations the relevant UK authority decides not to act upon a request for assistance it shall, as soon as practicable after making its decision to refuse a request and any event within three months of the date of acknowledgement of receipt of the request, notify the applicant authority in writing of the reasons for refusal.

    (2) In the cases mentioned in regulations 6(6) and 16 a copy of the reasons for refusal shall also be communicated to the Commission within the period specified in paragraph (1).

(a) the day following the expiry of three months from the date of receipt by the Board of the request for recovery of the foreign claim; and

(b) the date the instrument permitting enforcement of the foreign claim is recognised by the Board as an instrument authorising enforcement of the claim in the United Kingdom.

    (3) Paragraph (1) above applies even if the date of recognition is a non-business day within the meaning of section 92 of the Bills of Exchange Act 1882[7].

    (4) Interest is payable under this regulation without any deduction of income tax.

    (5) For the purposes of this regulation, where - 

(a) any payment is made by cheque to - 


(i) an officer of the Board, or

(ii) the Board, or

(iii) the applicant authority, and



(b) the cheque is paid on its first presentation to the banker on whom it is drawn;

the payment shall be treated as made on the day on which the cheque was received by the officer or the Board or the applicant authority.

    (6) Interest payable under this regulation shall be recoverable as if it were interest charged under a provision of the Taxes Management Act 1970[8].

Interest enforced by the Commissioners
     24.  - (1) A foreign claim corresponding to any UK claim - 

(a) mentioned in column 2 of Part I of Schedule 1, or

(b) for insurance premium tax,

shall carry interest in respect of the principal and any penalty claimed at the rate applicable to the corresponding UK claim under section 197 of the Finance Act 1996[9] from the date of recognition until payment.

    (2) In this regulation "the date of recognition" means the earlier of - 

(a) the day following the expiry of three months from the date of receipt by the Commissioners of the request for recovery of the foreign claim; and

(b) the date the instrument permitting enforcement of the foreign claim is recognised by the Commissioners as an instrument authorising enforcement of the claim in the United Kingdom.

    (3) Paragraph (1) above applies even if the date of recognition is a non-business day within the meaning of section 92 of the Bills of Exchange Act 1882.

    (4) Interest is payable under this regulation without any deduction of income tax.

    (5) For the purposes of this regulation, where - 

(a) any payment is made by cheque to - 


(i) an officer of Customs and Excise, or

(ii) the Commissioners, or

(iii) the applicant authority, and



(b) the cheque is paid on its first presentation to the banker on whom it is drawn,

the payment shall be treated as made on the day on which the cheque was received by the officer or the Commissioners or the applicant authority.

    (6) Interest payable under this regulation shall be notified in writing to the person subject to enforcement action in respect of the foreign claim and may be recovered from that person as a debt due to the Crown.

Recovery of import duties interest
     2.  - (1) Subsections (2) to (4) and (6) to (8) of section 126 of the Finance Act 1999[16] shall not apply to duties interest.

    (2) In its application to duties interest subsection (1) of section 126 shall apply as if the reference to determination and recovery of the amount of any interest charged in accordance with Article 232 of the Community Customs Code on arrears of customs duty payable to the Commissioners were a reference to the recovery by the Commissioners of an amount of duties interest for which a request has been made.

    (3) For the purposes of its application to duties interest subsection (5) of section 126 shall apply as if;

(a) the reference to interest the amount of which falls to be determined in accordance with this section were a reference to duties interest to be recovered; and

(b) the reference to interest on an amount so determined were a reference to duties interest to be recovered.

Recovery of VAT interest
     3.  - (1) Subsections (1) to (8) and (10) and the expression "unless, or except to the extent that, the assessment is withdrawn or reduced" in subsection (9) of section 76 of the Value Added Tax Act 1994[17] shall not apply to VAT interest.

    (2) In its application to VAT interest subsection (9) of section 76 shall apply as if the reference to an amount being assessed and notified to a persons under this section were a reference to an amount of VAT interest specified in a request concerning a person specified in regulation 4(2) of these Regulations in relation to whom a request is made.

Recovery of IPT interest
     4.  - (1) Sub-paragraphs (1) to (7) and (9) and the expression "unless or except to the extent that, the assessment is withdrawn or reduced" in sub-paragraph (8) of paragraph 25 of Schedule 7 to the Finance Act 1994[18] shall not apply to IPT interest.

    (2) In its application to IPT interest sub-paragraph (8) of paragraph 25 shall apply as if the reference to an amount being assessed and notified to any person under this paragraph were a reference to an amount of IPT interest specified in a request concerning a person specified in regulation 4(2) of these Regulations in relation to whom a request is made.

[2] Paragraph 2(2) specifies the body upon whom power to make the Regulations is conferred.back

[3] OJ L145, 13.6.77 p. 1.back

[4] OJ L331, 7.12.2002 p. 27.back

[5] OJ L337, 13.12.2002 p. 41.back

[6] 1989 c. 26.back

[7] 1882 c. 61 (45 & 46 Vict).back

[8] 1970 c. 9.back

[9] 1996 c. 8.back

[10] OJ L145, 13.6.77 p. 1.back

[11] 1994 c. 23 subsequent amendments are not relevant to this instrument.back

[12] 1979 c. 7 subsequent amendments are not relevant to this instrument.back

[13] 1979 c. 4 subsequent amendments are not relevant to this instrument.back

[14] 1979 c. 5 subsequent amendments are not relevant to this instrument.back

[15] OJ L336, 27.12.1997, p. 15.back

[16] 1999 c. 16.back

[17] 1994 c. 23.back

[18] 1994 c. 9.back

  © Crown copyright 2004