Unauthorised disposals and Landfill Disposals Tax

Landfill Disposals Tax (LDT) is chargeable on taxable disposals.

Part 2 of the Landfill Disposals Tax (Wales) Act 2017 (LDTA) governs what’s to be treated as a taxable disposal.

The following should be read in conjunction with our guidance on taxable disposals (LDTA/2010 to LDTA/2020).

A disposal of material as waste made after 1 April 2018 may be liable to LDT regardless of whether the disposal is made at an authorised landfill site or elsewhere.

Part 4 of the LDTA(sections 46 to 53) establishes liability to LDT for a disposal made outside of an authorised landfill site (an unauthorised disposal).

This liability arises where we at the Welsh Revenue Authority are satisfied the charging condition is met and issue a charging notice. These provisions bring a wide range of activities within the scope of LDT, such as:

• large-scale organised disposal sites run outside the relevant environmental and waste regulatory framework
• lower level ad hoc fly-tipping

The separate tax rate for unauthorised disposals, is aimed primarily at deterring these disposals than raising tax revenue. We’re responsible for determining the level of compliance and enforcement activity we undertake in relation to unauthorised disposals.

A person may become liable to LDT on an unauthorised disposal either where either:

• they made the disposal
• they knowingly caused or knowingly permitted the disposal to be made

Usually, it’ll be for us to establish a person made or knowingly caused /permitted the disposal to be made. Or for that person to inform us, they did so.

In some cases, it’ll be presumed a person knowingly caused /permitted the disposal. This is where, at the time of the disposal:

• a person controlled or was in a position to control a motor vehicle or trailer from which the disposal was made, or
• a person was the owner, lessee or occupier of the land on which the disposal was made.

If the above are established, we do not need to show the person did, in fact, knowingly cause/permit the disposal to be made. The charging condition will be presumed to be met. Unless the person satisfies us (or the tribunal) otherwise.

We’ll consider several factors in whether a person has overturned the presumption that they meet the charging condition.

Including (but not exhaustive) whether the person:

• took reasonable efforts to prevent the waste from being dumped on their land (for example, sturdy fencing)
• took reasonable efforts to have the waste removed (for example, contacted a registered waste carrier to arrange removal)
• actively assisted in any (potential) enforcement action against the offenders (for example, contacted the police, local authority or Natural Resources Wales about the waste / helped them in their investigations)
• Did not know of the waste disposal, and could not reasonably have known (for example, given where waste was deposited, size of estate)
• were ill or otherwise incapacitated when the disposal was made.

We’ll consider the full circumstances of a disposal and available evidence in deciding whether it’s satisfied that the presumption is overturned in any individual case.

Usually, there are 2 stages for establishing liability to LDT for unauthorised disposals:

1. Preliminary notice.
2. Charging notice.

However, in some cases, we may, issue a charging notice without issuing a preliminary notice. If we issue a charging notice, whether or not preceded by a preliminary notice, the liability to LDT is established as set out in that notice.

Preliminary notice

We may issue a preliminary notice to a person where it appears that:

• one or more unauthorised disposals have been made, and
• the person meets the charging condition

The preliminary notice must do the following:

• identify the land where the taxable disposal appears to have been made
• describe the circumstances of the disposal and the nature of the material being disposed of as far as possible
• state when the disposal was made or how we’ve estimated when it was made
• explain why we feel that the person meets the charging conditions
• state the amount of the proposed tax due and how we’ve calculated it
• state that, after 45 days (beginning on the day after the notice is issued), we may issue a charging notice, but that the person can:
  • ask for this period to be extended, or
  • make any written representations before the charging notice is issued

A preliminary notice may relate to either:

• more than one taxable disposal
• an unascertained number of disposals

It can be issued up to 4 years after we became aware of any of the taxable disposals referred to in the notice. However in some circumstances we have up to 20 years to issue a notice.

Charging notice following a preliminary notice

Where a preliminary notice has been issued, after 45 days (or another deadline if we agree to extend the deadline ), we must either:

• issue a charging notice, or
• inform the person that we do not intend to issue a charging notice, about the disposals identified in the preliminary notice

We may only issue a charging notice where were satisfied that:

• an unauthorised disposal has been made, and
• the person meets the charging condition

We must consider any written representations received by the person following receipt of the preliminary notice in determining whether to issue a charging notice.

The charging notice must do the following:

• give details of the taxable disposals
• explain why we are satisfied that the person meets the charging conditions
• state the amount of tax due and how that amount has been calculated
• inform the person of their right to request a review or to appeal the decision

Charging notice without a preliminary notice

We may issue a charging notice without having first issued a preliminary notice where:

• it’s satisfied that an unauthorised disposal has been made, and
• the person meets the charging condition; and
• we think there’s likely to be a loss of tax if we issue a preliminary notice

When we issue a charging notice without issuing a preliminary notice first, we must provide our reasons for doing so.

A charging notice without a preliminary notice can be issued up to 4 years after we became aware of any of the taxable disposals referred to in the notice. However in some circumstances we have up to 20 years to issue a notice.

Calculating the taxable weight of material

We’ll review all information about a disposal. Including assessing:

• type of material disposed
• method of disposal, for example, burning

We use this to choose a calculation method we think appropriate to determine the taxable weight of the material disposed.

Where accurate and reliable records are maintained, these may be used to determine the weight or volume of material disposed.

If records are not available, we’ll use other calculation methods, including but not limited to:

• maximum load weight of the vehicle or the maximum capacity for a skip used to make the disposal, and number of visits the vehicle made to the site where the disposal was made
• on site measurements, including using standard geometry to measure the dimensions of a disposal
• measuring 1 unit and multiplying this by total number of units for a stacked or stored disposal
• aerial surveys such as light detection and ranging (LIDAR) and other technologies

When using another calculation method to records, we’ll allocate a European Waste Code (or more than one code where we identify more than one type of material) to a disposal. Then we use a corresponding waste conversion factor to convert the volume of the material into tonnes.

We’ll include all constituents of the disposal and will not discount any contents, such as water weight.

The unauthorised rate applies without distinction to all material disposed of. Even if that material would otherwise be subject to the standard or lower tax rates at an authorised landfill site.

Exemptions and reliefs for authorised landfill do not apply to unauthorised disposals.

Calculating the tax amount

In calculating the amount of tax due on an unauthorised disposal, we’ll multiply the taxable weight by the unauthorised disposals tax rate.

Payment of the tax

Where we issue a charging notice, the person it’s addressed to is liable to pay the amount of LDT stated in it within 30 days. Beginning with the day on which the notice is issued.

Joint and Several liability

If charging notices are issued to more than one taxpayer for the same unauthorised disposal, all those taxpayers are jointly and severally liable for the tax charged.

This means the whole tax amount is enforceable against anyone charged the tax.

If part of the tax is paid, we can pursue anyone charged the tax for the outstanding amount. Late payment penalties will apply to each person sent a charging notice if the tax charged is not paid in full, 30 days after the date on a charging notice. Daily interest continues to be added to any outstanding tax amount.

Disagreement with our decision

If any taxpayers disagree with our decision to charge the tax, they have the option to request a review or appeal to the tax tribunal.