HMRC and credit where credit's due – eventually

I am very pleased to report that HMRC have allowed my longest standing claim under ESC A19 after five letters, eighteen months, and just before going to the Adjudicator. My previous report on the case was here and I do think it only right to thank Keith Gordon for his campaign and in particular his article in Taxation in October 2012 which provided more ammunition for the fight.

Of course it should not have been a fight. Not all cases have the same merit, but given that my client visited HMRC after her husband's death specifically to make sure that her pensions would be taxed at source correctly, it should have been a simple matter for HMRC to agree to the claim. Of course they did not, but let us be fair and say that they saw the light at last, and be grateful.

In some ways the pleasure I get from this win is more than a case I had a while back when HMRC backed off in an enquiry from unreasonably demanding £250K plus from a client I had just taken on. It is a great feeling to see off an injustice.

HMRC, the stick and the carrot

Can HMRC's aggressive stance towards individual taxpayers be counterproductive?

Frustrated of Essex

It is no secret, especially not on this blog, that I have been frustrated by HMRC's attitude towards those who found out at a late stage that tax had been under-recovered from their pensions etc. and they had a significant tax bill. Even though HMRC has had the power under ESC A19 to “forgive” the tax paid, in the last couple of years they have steadfastly refused claims and appeal which would have been accepted prior to 2011.

We know that HMRC is under extreme pressure to collect as much as possible. I understand that, and let me be clear, I think everyone should pay their fair share according to the law. I wrote last July:

“I would like to see all dishonest tax-dodgers caught. The so-called black economy consisting of people who offer to re-lay your drive or clean your house soffits and fascias for cash and all the other “cash-in-hand” people who knock on your door cost the country billions in lost tax.”

It is just that in some areas, HMRC, and maybe Government, have lost track of what might be fair with regard to honest taxpayers, those who out themselves from the black economy, and others whose tax affairs are in arrears and they seek to get themselves up to date.

My own patch

In my own practice, there are areas of taxation I do not enjoy, do not regard as my strengths, and which I pass to others. No one can gain the experience to be strong in all areas of tax because there just isn't time, whether one is a practitioner in private practice like me, or an employee.

I have two or three favourite areas or niches of tax that I do specialise in. One of those is in helping”delinquent” taxpayers, which usually means those who have not paid tax recently, to get themselves up to date and to negotiate a decent settlement with HMRC.

Those who have been “caught” by HMRC are in worse position from the point of view of the penalty regime than those who come forward voluntarily. That is understandable, but I can still help them in agreeing their back-tax, interest and penalties and getting a settlement with HMRC.

A puzzle

Those making voluntary disclosures should be entitled to better treatment with lower penalties. What has worried me recently is that in one case, where the individual simply did not have the means to pay all his tax (of course his fault) HMRC preferred to make him bankrupt with a lower tax recovery than if they had agreed his offer of payment of a quite significantly greater amount over three years. HMRC preferred less jam today than the more jam they might have had tomorrow, and by making anyone bankrupt they have to join the queue with the other creditors. I thought this was pretty silly.

Late return penalties

Another issue is the new daily penalties regime introduced by HMRC from 2010-11, and I quote them;

“Following a review of HM Revenue and Customs powers new legislation was introduced. Under Schedule 55 Finance Act 2009 the way in which HMRC applies its late filing penalties saw major changes particularly in respect of raising Daily Penalties. This change only applied to Tax returns for 2010-11 onwards with the previous legislation and guidance remaining for 2009-10 and earlier.

Where a customer has not filed a Tax return 3 months from the return due date Daily penalties will start to accrue for a period up to 90 days at a rate of £10.00 per day, the rate is fixed and can not be changed (except by legislation) and in the majority of cases this will be an automatic process. There is no longer a requirement to apply to the Tribunal to charge a Daily Penalty or for a “fixed £100 penalty” to have been charged before applying it. A Revenue Determination can be considered at any time during the period of which a Tax return remains outstanding but it is not a requirement before a Daily Penalty is applied.”

Note the irony of calling someone a customer and then in the same sentence imposing daily penalties.

Disincentive

My concern is that the daily penalties may be a disincentive to comply in some circumstances. Someone more itinerant “self-employed” might, if the penalty notice catches up with them, be less inclined to let HMRC know where they are. Also, not everyone who works in the UK was born here or even has strong ties to the UK. Many, in the face of threats, will melt away whence they came, or to some other jurisdiction. Of course the individual amounts of tax lost each time might be small, but in a fluid situation of cross-border working, I think the penalty regime may be a disincentive to comply, especially if the first a worker knows of her or his obligations is the penalty notice rather than the original notice to complete a tax return.

Particularly with the taxation of individuals I believe HMRC should take a more pragmatic approach to collecting tax, by which I mean adopting methods to collect more through negotiation, rather than less tax through preferring the stick over the carrot.

Of course everyone should meet their tax obligations under the law. Punishing especially those who have come clean or have just got behind with their tax affairs, at the expense of lowering the overall tax take, seems rather foolish.

Common sense?

I believe there is a case for removing most of the penalties imposed for late submission of Returns once they are submitted, with perhaps HMRC raising their interest rate charge for late-paid tax. I also think more common sense should be applied where an individual simply cannot meet their tax obligations. I would not want to encourage anyone to dodge their responsibilities; rather I would hope they should face up to them with more encouragement.

How do you feel about HMRC's aggressive stance? Do you believe it is counterproductive?

Disingenuous HMRC

Last June I mentioned a lady on whose behalf I had made a claim under ESC A19. She had visited the local office of HMRC, back when they had one, to ensure that her tax would be dealt with correctly following the recent death of her husband. Her claim for relief from a quite considerable amount of back tax owing as a result of HMRC's failure to act following her visit was turned down.

On behalf of my client at the end of May 2012 I appealed against the decision. At this stage it was by making a formal complaint given that the relief requested is actually discretionary as far as HMRC is concerned.

I had heard nothing from HMRC by September so I telephoned and was advised that the matter had been “brought forward” which is Civil Service speak for not actually having done anything but not yet lost the file or record. I called subsequently without getting news of further progress, and again after the January tax return rush was over. I was then told by the call centre that I would get a call back from the relevant office within five working days.

I did get a call back within two days from a Complaints Officer. The conversation went something like this:

Complaints Officer (CO) “We replied to your letter of 30^th May last July. Did you not receive it?”

Me: “No.”

CO: I think it was probably never sent. I will fax you a copy. You won't be surprised to learn that your request for relief (under ESC A19) has been turned down again”.

Me: “Why was I told in September that the record had been brought forward if a letter had been sent?”

CO: “Because your client has complained to her MP so we kept it open.”

So I received the faxed letter with the date “July 2012” but no actual day typed or written in, so it is fair to assume that the letter was indeed never sent and that Royal Mail are not to blame.

The reasons the further request for relief have been turned down include that the end-of-year pension providers' PAYE Returns submitted in May each year do not count as information HMRC could reasonably have used although they “appreciate how tempting it is to assume these immediately become available for ESC A19's purposes.” Well, blow me, if someone send me an email, letter or fax that I actually receive (unlike HMRC's letter) I have the information and it is my fault if I neglect to do anything with it.

The seven-month-old letter goes on to stress that the information they receive allows them up to four years to review the tax position. Well, we know that. It's the law. It has nothing to do with whether HMRC acted properly and whether they should give up the tax they did not collect in accordance with a long-established concession and precedent.

They at least concede that my client is not a liar and accept she did visit the tax office after her husband died. However according to HMRC she could not apparently have “reasonably believed” her tax affairs were in order following the issue of an incorrect coding. That assumes she would have had some knowledge of tax (something HMRC unreasonably wishes to impute on all taxpayers in a recent consultation on the concession) and that her understanding was not skewed in the trauma of bereavement.

My client and I are not leaving it there and we will return to the fray. We have further grounds for complaint in their not sending the letter and not mentioning it over the telephone two months after it had been typed and left on file, unsigned. Of course the whole letter is complete and utter nonsense arguing in the face of what would have been a simple case of allowing the relief if a request had been made in 2010 or earlier.

There is no doubt that HMRC has sent round a memo instructing that all claims be turned down on whatever grounds. Their correspondence is disingenuous and frankly, they might as well abolish the concession altogether rather than just change it, if they are intending to turn down all future claims.

HMRC need not be afraid of one bad write-up in the Daily Mail if they even get one. After all, the politicians and the public have too much fun bashing the multi-nationals for sensible tax planning, and for whatever reason this tax abuse of small taxpayers who are mostly pensioners is being largely ignored by the media. It seems that politicians who count in this matter are not going to help.

Isn't it all a disgrace?

HMRC's review of Extra-Statutory Concession A19

Her Majesty's Revenue & Customs (HMRC) office, Wellington Place, Belfast, Northern Ireland, October 2010 (Photo credit: Wikipedia by Ardfern)

As you may know, HMRC is currently resisting all claims under Extra-Statutory Concession (ESC) A19, which for the uninitiated is a concessional treatment for taxpayers, usually unrepresented and who have not been required to submit tax returns, who find themselves with tax liabilities where PAYE codes have been issued incorrectly.

HMRC has issued a consultation document which is here. 

This is the response I am sending to HMRC. It is based on my own experience with no cribbing from anyone else.

Response begins:

5. Summary of Consultation Questions

Taxpayer responsibilities

5.1 Do you agree with the removal of 'reasonable belief' to be replaced with an objective test based around 'taxpayer responsibilities'?

No. Most taxpayers under PAYE are not tax specialists and have no need to employ agents since their affairs should be simple. Many claims under ESC A19 arise where individuals have two or more small occupational pensions. With modern software they are entitled to believe HMRC will get their tax liabilities right even if they have no concept of the automated system. A majority of such taxpayers will believe reasonably that their affairs are in order even if they are not.

HMRC responsibilities

5.2 Do you think that the introduction of HMRC responsibilities makes it clearer in regard to what information HMRC must act on? Has HMRC identified the correct responsibilities and/or are there others that should be included?

It is important that HMRC does take responsibility for taking action in relation to all information received and this should include all P14 and other end-of-year information. It is inexcusable that HMRC even resists currently claims under ESC A19 where it is clear they had relevant information as per Forms P14 received from employers and pension providers, which should have been deal with timeously.

'Exceptional Circumstances' test

5.3 Do you agree that the 'Exceptional Circumstances' section is now redundant and can be removed from ESC A19? If not, for what circumstances do you think it should be retained?

This question is slanted in itself. Low income taxpayers could endure serious hardship if information not properly used by HMRC involves notice of further liability less than 12 months after the relevant period or which had built up over two years.

Capital gains tax

5.4 Can you identify any issues with the removal of CGT from ESC A19? HMRC would be particularly interested to hear examples of where a recent request has been made in relation to CGT and ESC A19.

It is less likely that a claim would be necessary in relation to capital gains issues since most taxpayers should be aware of the tax.

Time limit for requesting HMRC looks at ESC A19

5.5 Do you agree with introducing a time limit for individuals to contact HMRC? Can you identify any issues with HMRC adopting this approach?

The time limit should be a fixed period of at least nine months after receiving Form P800, in the interest of fairness. To change the dates in HMRC's example:

“HMRC notifies Mrs Smith of an underpayment for the tax year 2015-16 by sending her a P800 Tax Calculation on 15^th March 2018. Mrs Smith considers it was HMRC’s failure to deal with information which led to the underpaid tax. Mrs Smith should contact HMRC: as soon as possible after receiving the P800, or, upon receiving her Tax Code Notice for 2018-19, but in any case, before 6 April 2018.”

This would leave Mrs Smith three weeks to notify HMRC of her claim, which would be unfair. Theoretically on HMRC's proposed change Mrs. Smith might have no real time to notify at all. Surely nine months is a fair and reasonable period to make a claim?

Other considerations

5.6 HMRC plans to issue supporting guidance alongside the revised wording. What format would be most appropriate for this? For example, online guidance, a Question and Answer document or updates in the PAYE Online Manual.

5.7 Are there any terms within the revised concession which you feel require further explanation or expansion?

On-line information should always be available, but a paper Question and Answer Document should be available for all taxpayers should they need it.

However HMRC has not demonstrated that there is any need to amend the current guidance on operation of ESC A19. Clearly the present Concession has been reinterpreted in HMRC's favour in the last two years with even very excellent and one would have thought irrefutable claims being denied, requiring taxpayers to make formal complaints.

HMRC should view the Concession not as a drain on Treasury revenue, but as it was formerly; to bring justice to taxpayers who can ill-afford late and unexpected tax demands when HMRC should have properly collected the tax at the time the relevant income was received.

End of response

I am very unhappy both about the proposed revision of ESC A19 and agree with Keith Gordon that there is no need for any change. If you have not done so already, please hurry to sign Keith's petition against the change. 

Related articles

• HMRC errors and the older taxpayer

HMRC errors and the older taxpayer

Post-modernism

Recently I was looking on-line for the first time at the record of a taxpayer who has been retired for thirty years. As one would expect, he isn't exactly in the first flush of youth, and although very much “on the ball” to the extent of doing his supermarket delivery order on-line, I don't expect him to be well up with our modern tax system.

Modern is a term I should use loosely. Of course I mean “current” in that the system creaks badly because HMRC relies too much on automation and their computer systems, and have extracted the human element too much or too early.

Mystery

My older taxpayer's record showed that he had had £1,500 tax coded out from his pension in 2011-12. That is quite a lot, and I could not see where this previous apparent underpayment of tax had arisen. The on-line details were not sufficiently specific.

We asked for an explanation from HMRC over the telephone, but the agent could not help and said he would arrange for a letter of explanation to be sent.

To HMRC's credit, that letter arrived within two weeks. However it explained that the underpayment of tax had arisen in 2005-06 but had been collected in 2008-09 so it hadn't needed to be collected again.

Goalpost shifting

All this is a bit worrying. In an era where HMRC wants to move the goalposts further than they have already done informally with regard to ESC A19 because they say they are better at end-of-year reconciliation of liabilities, I cannot see how they would have picked up this error from way back if someone like me hadn’t picked it up.

Crying foul

We expect HMRC to hold errant taxpayers to account. We expect them to collect “the right amount of tax” by which I mean the amount properly due under the law. Unfortunately we as taxpayers do not seem to be able to hold HMRC to account over their errors.

I am going to ask for interest on the refund due as a consequence over and above the generous 0% currently prescribed. I will be wasting my time no doubt, but my older pensioner has been deprived of a not inconsiderable amount of money over twelve months. He should be entitled to compensation, don't you think?

HMRC loses the plot over ESC A19

HM Revenue and Customs seen from Parliament Square (Whitehall, London, England). Photographed by Adrian Pingstone in June 2005 and placed in the public domain. (Photo credit: Wikipedia)

The Concession

For those not familiar with Extra Statutory Concession A19, here is HMRC's own commentary on the subject. To quote the beginning:

“If you think that HM Revenue & Customs (HMRC) should have already collected the tax due in your Tax Calculation (P800) because the information had already been provided to it and HMRC have failed or delayed to use this information, then in some limited circumstances HMRC may agree not to collect it.

An 'Extra Statutory Concession' (ESC A19) allows HMRC to do this and it only applies to individual taxpayers who owe Income Tax and Capital Gains Tax. It does not apply in any other circumstances where amounts owing to HMRC are in dispute.

The circumstances are that HMRC should have used the information provided within 12 months after the end of the tax year in which it is received to notify the taxpayer of any arrears.”

As it says on the tin, the relief is concessional and therefore discretionary. So what am I complaining about?

Recent history

Back in the summer of 2010 HMRC had improved their software for finding overpayments and underpayments of tax mainly in respect of the majority of people taxed under PAYE who are not required to submit tax returns under Self Assessment. These differences covered a number of years generally from 2006-07 onwards though I believe there were an odd few from a year or so earlier.

If HMRC were not fairly quick in recovering what tax they thought they were owed, they would have been statute-barred from collecting it. So they set about sending out calculations of tax generally outstanding for the previous three or four years.

Many of the people caught out were pensioners with usually more than one occupational pension, though the pensions themselves are often quite modest. Obviously there was a furore and a campaign in the newspapers, many of which drew attention to ESC A19. Individuals with unexpected tax demands of often £5,000 - £6,000 made claims under ESC A19 and many, possibly most of the claims by pensioners in this situation were allowed. Great, and it seems only fair that people of modest income with almost none from savings (with such low interest rates) should not be landed with such an unexpected tax burden.

However, not all the underpayments of tax (yes, and some overpayments) were found in the first wave. HMRC have continued to run their program, many more differences have been found, and calculations sent to unsuspecting taxpayers including many more pensioners.

A sad tale

Consider the case of one lady, who following the death of her husband a few years back, actually visited an HMRC office back in the days when one could, and went through her income sources requesting that HMRC made sure her tax affairs would be in order. Four-and-a-half years later (at the end of 2011) she received a demand from HMRC for more than £6,000. Apparently she had been given allowances against more than one occupational pension.

She made a claim under ESC A19, which has been refused and her appeal turned down. Yet all pension providers must have advised HMRC by 19th May annually of the amounts paid to their pensioners in the previous tax year. Surely “HMRC... failed to use information received about a source of income, within 12 months after the end of the tax year in which the information is received” especially when you consider the lady visited HMRC's office back in 2007.

Yet HMRC says the lady fails the “reasonable belief” test. Presumably because the HMRC officer she saw in 2007 did nothing following her visit and did not type a note into the computer system, HMRC is prepared to call the lady a liar.

Patent unfairness

HMRC seems to be resisting every ESC A19 claim now. I suppose there has been an internal memo that to much tax was being lost or leaked because of the claims made.

Yes, we are dealing with a concession. Yet the current attitude of HMRC is patently unfair as I have no doubt that if the initial claim had been made in December 2010 rather than December 2011 it would have been allowed and the tax written off. It is hardly the lady's fault that HMRC took an extra year to re-calculate her tax liabilities and certainly not her fault that HMRC failed to act following her visiting their office in 2007 at her own initiative. Except, as I said, that they seem to be calling her a liar.

In my view it is patently unfair that almost identical claims made a year apart have been treated entirely differently. I have no doubt that back in 2010 some more extreme claims were allowed by mistake.

I do not think it unreasonable to expect that HMRC should be even-handed in dealing with similar cases where taxpayers really were entitled to believe that HMRC had all relevant information. Internal directives (yes, there must have been one) should not mean that one British taxpayer should be treated differently from another.

What is your experience?