Landfill tax return

Mr Cross made this Rhyddid Gwybodaeth request to Cyllid a Thollau Ei Mawrhydi

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Roedd y cais yn rhannol lwyddiannus.

Dear HM Revenue and Customs,
I am writing to request information under the Environmental Information Regulations 2004 and where relevant the Freedom of Information Act 2000.

(1) Please can you provide me with a complete and unredacted copy of "LFT8010 - Disclosure of information: Disclosing information related to Landfill Tax" a redacted copy appears here: http://www.hmrc.gov.uk/manuals/lftmanual.... If you cannot please explain which exemptions apply.

(2) Please can you provide me under EIR with the names of the ten entities who declared the highest 'total weight of waste landfilled' on returns covering the quarter to 31 March 2012 together with copies of the relevant Landfill Tax Return Forms.

(3) Please also provide a copy of any spreadsheet HMRC already holds or can readily generate from an existing database showing the data entered in boxes 1 to 20 for each entity submitting a Landfill Tax Return Form for the four quarters in the year to 31 December 2011.

Yours faithfully,

Mr Cross

Cyllid a Thollau Ei Mawrhydi

FOI 2827/12

 

Dear Mr Cross

 

Thank you for your communication of 3 November 2012 which has been passed
to HMRC’s Freedom of Information Team. 

 

We have allocated the above reference which you should quote if you need
to contact us. 

 

The Team will arrange for a reply to be sent to you which will either
comply with HMRC’s obligations under Freedom of Information Act or, if we
think it’s an enquiry that we don’t need to address under the terms of the
Act, let you know why.  If it is the latter we will, if possible, pass it
on to a more appropriate part of the Department for answer. 

 

HMRC

Freedom of Information Team

 

dangos adrannau a ddyfynnir

Cyllid a Thollau Ei Mawrhydi

1 Atodiad

Mr Cross

 

Please find the response to your Freedom of Information request attached.

 

HMRC

Freedom of Information Team

 

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be subject to legal professional privilege. Unless you are the intended
recipient or his/her representative you are not authorised to, and must
not, read, copy, distribute, use or retain this message or any part of it.
If you are not the intended recipient, please notify the sender
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HM Revenue & Customs computer systems will be monitored and communications
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Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

Dear HM Revenue and Customs,
Please pass this on to the person who conducts Environmental Information Regulations ("EIR") reviews.

I am writing to request an internal review of HM Revenue and Customs's handling of my EIR request 'Landfill tax return'.

I would ask the internal reviewer to consider the following points in relation to the way my request was handled. My arguments mainly relate to what you refer to as question 2, the request for landfill tax returns.

***EIR 12(9) is engaged***
HMRC has withheld landfill tax returns citing exception 12(5)(d) and 12(5)(e) of EIR. 12(9) of EIR states that "To the extent that the environmental information to be disclosed relates to information on emissions, a public authority shall not be entitled to refuse to disclose that information under an exception referred to in paragraphs (5)(d) to (g)."

The wording here is absolutely critical 12(9) is not simply concerned with information about emissions but more broadly with information that relates to information about emissions. This broad approach is confirmed by the ICO policy statement LTT153.

As explained in ICO policy statement LTT99: "The ICO view is that the emissions referred to at 12(9) are not limited to emissions that have already taken place and could include past, present and future emissions."

Information about the nature and quantity of waste sent to landfill is information relating to information about emissions because it is relevant understanding emissions into land, the air and water.

The problem of landfill gases is a serious one. The management of landfill gas at permitted landfills
is covered by no less that three pieces of European legislation:[1]
● Waste Framework Directive (75/442/EEC as
amended)
● Landfill Directive (1999/31/EC)
● Integrated Pollution Prevention and Control (IPPC)
Directive (96/61/EC).

Landfill also results in emissions into Groundwater and Surface Water. As explained further in Environment Agency guidance[2] "Landfill leachate is a potentially polluting liquid, which unless managed and/or treated, and eventually returned to the environment in a carefully controlled manner, may cause harmful effects on the groundwater and surface water that surround a
landfill site."

The case law in this area supports a broad interpretation of 12(9). In Ofcom v ICO and T-Mobile (Para 25) the Information Tribunal reached the view that:
"The 16th recital suggests that the grounds for refusal to disclose should be interpreted in a restrictive way. It follows that any exception to such a ground should be given a broad interpretation."

***reliance on 12(5)(d)***
HMRC cannot rely on 12(5)(d) because 12(9) is engaged as explained in the previous section, it should be noted however that even if 12(9) was not engaged it would still not be possible for HMRC to rely on 12(5)(d) because it is concerned with "the confidentiality of the proceedings of that or any other public authority". The Landfill tax returns are prepared by the corporate tax payers and later provided to HMRC, in no sense are they a proceeding of a public authority. The case law in this area supports my view:

“The EIR contains no definition of “proceedings”. We
consider that “proceedings” would include legal
proceedings. It would also include a formal meeting of the Council at which deliberations take place on matters within the Council’s jurisdiction.”
Benjamin Archer v the Information Commissioner
and Salisbury District Council (EA/2006/0037, 9 May 2007) (para 68)[3]

***public interest***
I have already explained why HMRC cannot rely on 12(5)(d) or (e) because 12(9) is engaged as explained in a previous section. I have also explained that even if 12(9) was not engaged HMRC could not rely on 12(d) because tax returns do not meet the definition of proceedings of a public authority. Even if however either or both of these exemptions were engaged it would not be possible to use these to withhold information because the disclosure of the information is in the public interest.

Regulation 12(2) of the EIRs states that a public
authority should apply a presumption in favour of disclosure. You claim that "HMRC publishes anonymised
data in respect of landfill tax declarations and receipts and we consider that this proactive
publication addresses the public interest in disclosure of environmental information."

This is a very weak argument. HMRC only publishes some of the data (mainly totals) in anonymised form. The names of individual companies for the ten entities with the highest waste totals would:

(i)enable the public to understand and discuss the impact that the actions of named private companies have on the environment.
(ii) enable the public to hold regulators to account for perceived policy failures
(iii) enable informed public participation in decision making

As noted previously, landfill has a major impact on land, air and water. HMRC has failed to take any account of that fact that the ten entities in respect of which I request information are among the largest landfill polluters in the United Kingdom.

***expectation of confidentiality***
HMRC has given undue weight to the view that some tax payers may not expect their information to be released by HMRC. You wrote that:

"Similarly, the expectation that commercially sensitive information provided by our customers to HMRC will
be treated confidentially would be adversely affected by disclosure of the requested information."

The United Kingdom signed the Aarhus Convention on 25 June 1998, from that point onwards it was public knowledge that the UK would put in place a legal framework for the disclosure of environmental information. If a company expects total unconditional confidentiality of their tax return to HMRC then it is simply because is ignorant of a law that has been in place for many years. Major landfill companies can access legal advice on such matters and I fail to see why I should be disadvantaged if they choose not to.

UK Taxpayers in 2012 simply cannot expect complete confidentiality of their tax affairs as has been demonstrated recently before the Public Accounts Committee.

***Sources***

[1] Environment Agency - Guidance on the management
of landfill gas - http://www.environment-agency.gov.uk/sta...

[2] Environment Agency - Guidance on Monitoring of Landfill Leachate, Groundwater and Surface Water - http://www.environment-agency.gov.uk/sta...

[3] Information Commissioner - Detailed Specialist Guidance on Confidentiality of Proceedings http://www.ico.gov.uk/for_organisations/...

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/la...

Yours faithfully,

Mr Cross

Gadawodd Mr Cross anodiad ()

I complained to the ICO today. My complaint is very similar to that used above when requesting an internal review.

Dear HM Revenue and Customs,
Please can you let me know whether you intend to respond to my request for an internal review.

Yours faithfully,

Mr Cross

Cyllid a Thollau Ei Mawrhydi

Dear Mr Cross,

I am sorry that you did not receive an acknowledgment of your review request.

I can confirm that your review request is receiving attention and you should receive a response within the statutory provisions of the EIRs.

Yours sincerely

Teresa Chance
FOI Policy Adviser
Central Policy
Rm 1C/25
100 Parliament Street
London
SW1A 2BQ
Tel: 020 7147 3253
Fax: 020 7147 0666

dangos adrannau a ddyfynnir

Cyllid a Thollau Ei Mawrhydi

Dear Mr Cross,

I apologise for the delay in completing your review. It will be completed by the end of this week.

Yours sincerely

Teresa Chance
FOI Policy Adviser
Central Policy
Rm 1C/25
100 Parliament Street
London
SW1A 2BQ
Tel: 020 7147 3253
Fax: 020 7147 0666

dangos adrannau a ddyfynnir

Cyllid a Thollau Ei Mawrhydi

1 Atodiad

Dear Mr Cross,

Please find attached my internal review of your information request.

Yours sincerely

Teresa Chance
FOI Policy Adviser
Central Policy
Rm 1C/25
100 Parliament Street
London
SW1A 2BQ
Tel: 020 7147 3253
Fax: 020 7147 0666

dangos adrannau a ddyfynnir

Gadawodd Mr Cross anodiad ()

Extract of email to ICO sent today :
**************************************************
Dear ICO
HMRC have finally responded to my request for an internal review.
http://www.whatdotheyknow.com/request/13...

The arguments HMRC have made are weak. My original complain to you
below still stands. I would expect you to review HMRC's response
critically and identify the weaknesses in the arguments made. I point
out the following examples so you can see my perspective on the
internal review carried out:

1. "The public already have the opportunity to be involved in
decisions affecting landfill tax and all other taxes through
correspondence with their MPs and Treasury Ministers and any specific
consultations run by the UK Government or the devolved
administrations."

Would it not therefore be better to disclose the information to the
public so that they well informed when participating in decisions? I
am entitled to write to my MP or any government minister about any
subject matter whatsoever and this is because I live in a democracy.
HMRC is saying that because I live in a democracy my rights to
information from public authorities is reduced - I trust you will see
the irony in this.

2. "Whether the companies that run landfill sites are meeting or
contravening their environmental obligations is not a tax matter but
one for those who regulate them under environmental law"

This is not relevant as requesters can ask for information from any
public authority and in fact have the right to make multiple requests
and compare the information that different bodies provide.

3. "HMRC considers that there is a significant public interest in
protecting the confidentiality which taxpayers expect and this is
supported by the fact that unlawful disclosure of confidential
information relating to an identified person is a criminal offence
under s19 of the CRCA."

EIR includes a special rule "Any enactment or rule of law that would
prevent the disclosure of information in
accordance with these Regulations shall not apply." Parliament quite
deliberately chose to override all other criminal and civil rules when
passing EIR in order to ensure compliance with Aarhus. I fail to see
how a law that does not apply is relevant when handling my request.
Corporate tax payers in the UK cannot have any reasonable expectation
of total confidentiality with regards to tax returns (please see my
compliant below where I refer to the Public Accounts Committee etc),
particularly with regards to environmental information contained on
tax returns held by public authorities in states who are party to the
Aarhus Convention.

4. "There is no explicit reference to emissions in any part of the LTR."

There does not need to be a specific reference to emissions. The
wording here is absolutely critical 12(9) is not simply concerned with
information about emissions but more broadly with information that
relates to information about emissions. This broad approach is
confirmed by the ICO policy statement LTT153.

5. "I note that the ICO guidance on 12(5)(d) states that the
Commissioner interprets “proceedings” as including where a public
authority exercises its statutory decision making powers."

The Landfill tax returns are prepared by the corporate tax payers and
later provided to HMRC, in no sense are they a proceeding of a public
authority. The case law in this area supports my view:

“The EIR contains no definition of “proceedings”. We consider
that“proceedings” would include legal proceedings. It would also
include a formal meeting of the Council at which deliberations take
place on matters within the Council’s jurisdiction.” Benjamin Archer
v the Information Commissioner and Salisbury District Council
(EA/2006/0037, 9 May 2007) (para 68)

Thank you time and consideration in this matter.

regards,
...
**************************************************

Gadawodd Benny Spooner anodiad ()

From HMRC's response it seems to me that they have confused the terms 'a statutory decision making power' and 'a statutory power'.