Commentary

A6.706 Discovery—who makes the discovery?

Administration and compliance

A6.706 Discovery—who makes the discovery?

A6.706 Discovery—who makes the discovery?

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 HMRC officer who makes the discovery.

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.

HMRC officer who makes the assessment

As discussed in A6.703, in order to issue a discovery assessment it is necessary for the HMRC officer to make a discovery. The meaning and timing of discovery is covered in A6.704–A6.705. When considering the HMRC officer making the discovery, a contrast must be drawn with the reference in the legislation 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). See A6.710.

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 Anderson2.

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

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