A6.706 Discovery—who makes the discovery?
Note that this commentary 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.
Following on from the considerations at A6.704 and A6.705, the final point to be made about TMA 1970, s 29(1) is that the reference to the officer is to the actual HMRC officer making the assessment. This contrasts, as will be seen later at A6.710, with the reference to what has become known as the 'hypothetical' officer against whom the test of knowledge is made for the purposes of TMA 1970, s 29(5).
Case law has shown that it is important to consider how that actual HMRC officer came to raise a discovery assessment.
There is a long discussion of what constitutes a discovery in Anderson1.
This was a case about a loss relating to a trade of football development. HMRC did not enquire into the relevant return within the time limit and therefore sought to