Commentary

A6.704 Discovery—what is meant by the term discover?

Administration and compliance

A6.704 Discovery—what is meant by the term discover?

A6.704 Discovery—what is meant by the term discover?

The discovery provisions allow an HMRC officer to make an assessment to recover a loss of tax where certain conditions are met1. A discovery assessment is often used if the time limit to open an enquiry into the matter has passed. For details of the conditions, see A6.703.

The commentary below discusses the meaning of 'discovery', as the HMRC officer must have made a discovery in order for the assessment to be valid.

Note that the commentary below refers only to the legislation as it applies to individuals, but unless otherwise stated, it can be assumed that it also applies to partnerships and companies. For specific commentary on discovery for partnerships and companies, see A6.715 and A6.716 respectively.

Meaning of 'discover'

As noted at A6.703, there are three concepts which are fundamental to discovery, the most important of which is the meaning of the word 'discover' itself.

Although the term discover has been part of tax law since 1803 it has never been defined in statute. It has however been the subject of considerable case law.

The case law can broadly be considered to have concluded that:

  1.  

    (a)     no new facts have to have come to light for there to be a discovery—a new interpretation of existing known facts is sufficient

  2.  

    (b)     however, when a discovery is made, the HMRC officer at the time must have had a belief that tax had been under-assessed and that belief must have been reasonable

Point (a) is discussed in

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