Commentary Transfer of property etc Section 26: Transfer schemes
114.Section 26(1) provides for the making of a scheme, or schemes, by the Commissioners for the transfer of specified property, rights or liabilities ─ or for property, rights or liabilities of a specified description ─ between the Commissioners or officers of Revenue and Customs and the Secretary of State, the Director or designated customs officials.
115.Subsection (2) provides that a scheme made under subsection (1) may, in particular, create interests or rights, or impose liabilities, in relation to the transferred property, rights or liabilities. Subsection (2) further provides that any such scheme may apportion property, rights or liabilities between a transferor and a transferee.
116.Subsection (3) enables a scheme made under subsection (1) to provide for anything done by or in relation to a transferor in connection with anything transferred to have effect as if done by or in relation to a transferee and to permit anything, including legal proceedings, relating to anything transferred by the scheme which is in the process of being done by or in relation to a transferor when the transfer takes effect to be continued by or in relation to a transferee. Under subsection (3) any such scheme may also provide for references to a transferor in any agreement, instrument or document relating to anything transferred by the scheme to be treated as references to a transferee and may make other incidental, supplementary, consequential, transitional or transitory provision or savings.
117.Subsection (4) provides that a scheme made under subsection (1) may provide for a transfer of property, rights or liabilities whether or not they would otherwise be capable of being transferred, without any instrument or other formality being required, and irrespective of any requirement for consent that would otherwise apply. Subsection (5) enables the Commissioners to make a scheme providing for any specified thing or anything of a specified description done by or in relation to the Commissioners or an officer of Revenue and Customs in connection with a relevant function to have effect as if done by the Secretary of State, the Director or a designated customs official. Under subsection (5) a scheme may also provide for any specified thing or anything of a specified description (including any legal proceedings) relating to a relevant function done by or in relation to the Commissioners or an officer of Revenue and Customs to be continued by or in relation to the Secretary of State, the Director or a designated customs official. This will enable, for example, ongoing legal proceedings and liability for certain matters to be transferred from HMRC and customs officers to the Secretary of State, the Director or a designated customs official as appropriate.
118.Subsection (6) makes provision in respect of the coming into force of any scheme and provides that such a scheme may be revoked or amended. Subsection (7) defines the terms “relevant function” and “specified” for the purposes of section 26.