I am currently discussing the above matter with a fellow professional and we appear to have a differing view as to the level of disclosure required in order to limit the possibility of HMRC raising a discovery assessment.
My view is that taxpayers will not be protected unless they comply with the HMRC guidance i.e. there must be a clear statement that one has taken a view that differs from HMRC’s published view.
The other adviser believes that HMRC can not raise a discovery assessment if the arrangements were not within the disclosure regime (for example the arrangements were identiacl to those offered pre 1st April 2010). Unfortuantely, I am not able to find any guidance that confirms this? Any suggestions?
Barrie, in principle I agree with your view. The two sets of rules have different purposes. The DOTAS rules are there to alert HMRC to the use of a new and innovative tax scheme. The discovery rules are intended to give the taxpayer the comfort of finality after (in SDLT) 9 months if he has made an honest return and clearly alerted HMRC to a situation where HMRC might think that insufficient tax has been paid. Therefore if such comfort is required, a disclosue would need to accompany the return even when there is no disclosure obligation under DOTAS. Such disclosures are of course a voluntary matter unlike those where DOTAS applies.