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Every penalty falls into one of two types as regards its amount: 鈥渇ixed鈥� or 鈥渕aximum鈥�. The distinction is important because each type is quantified and handled in its own way.

(i) Fixed-amount penalties

TMA70/S100B(2)(a) refers to such a penalty as one 鈥渞equired to be of a particular amount鈥�. In other words the wording of the relevant penalty provision fixes the amount

• either at a specified sum, 拢x (e.g. TMA70/S93(2) 拢100) or
• by a formula, and that formula may be

• tax-gearing (e.g. FA98/SCH18/PARA18)
• or not (e.g. TMA70/S98A(2)(a)).

Because Parliament has fixed the amount, this type of penalty is never abated (never reduced for Disclosure, Co-operation, Seriousness).

The 鈥渁uthorised officer鈥�, EM5320+, TMA70/S100(1), determines the penalty at the 鈥渃orrect鈥� amount, i.e. the amount specified by the particular penalty provision.

On appeal, the review officer (after consulting the Authorising Officer) or the tribunal can

• discharge the penalty if they find there was no offence
• confirm the penalty if it appears to them to be correct, or correct the authorised officer鈥檚 figure if it is not as specified in the statute.

However the review officer or tribunal cannot vary the amount of the penalty to an amount that they think more appropriate. TMA70/S100B(2)(a).

For information on the reviewing officer, refer to the Appeals, Reviews and Tribunals Guidance at ARTG1030 and ARTG4080.

(ii) Maximum-amount penalties

TMA70/S100B(2)(b) refers to these as 鈥渁ny other penalty鈥�, but they are invariably enacted as 鈥渁n amount not exceeding鈥� a stated maximum.

That maximum may be set

• either at a specified sum, 拢x (e.g. TMA70/S98(2) 拢3000)
• or by a formula, and that formula may be

• tax-gearing (e.g. TMA70/S95)
• or not (e.g. FA98/SCH18/PARA29(1)(b)).

Because Parliament has only specified a maximum, this type of penalty is always abated (always reduced for Disclosure, Co-operation, Seriousness). The abatement exercise is simply HMRC鈥檚 method of arriving at the appropriate level of penalty, within the statutory maximum, in the circumstances of the particular case.

The 鈥渁uthorised officer鈥�, EM5320+, TMA70/S100(1), determines the penalty at the 鈥渁ppropriate鈥� amount.

On appeal, the review officer (after consulting the Authorising Officer) or the tribunal can

• discharge the penalty if they find there was no offence
• confirm the penalty if they think it appropriate
• reduce that figure if they think it too high
• or increase it if they think it too low: TMA70/S100B(2)(b).