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HMRC internal manual

PAYE Manual

From
HM Revenue & Customs
Updated
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Appeals and reviews: decision makers and reviewers: decision maker (Action Guide)

This guidance applies from 1 April 2009.

Further guidance on appeals is found in the Appeals Reviews and Tribunals Guidance (ARTG).

As an appeals decision maker, follow steps 1 - 10 below. This guide is presented as follows.

Step 1 - 4

Step 5

Step 6

Step 7 - 10

Initial action

  1. To be valid an appeal must be
  • In writing, and
  • Made within 30 days of the issue of the Notice of Liability

But if you establish that a return is not due then a penalty cannot be charged for failing to submit the return by the relevant date and in these circumstances the formal appeals process is not relevant

If the employer says that he / she has no Employer Annual Return (P35) or P11D(b) Return to make, questions must also be asked to test this statement

P35

Confirm that the employer was not required to maintain any P11 Deductions Working Sheets or equivalent records

  • Ask why the employer did not notify HMRC and refer to HMRC online guidance for No Return To Make
  • Follow the instructions for No Return To Make to check that there is no evidence to indicate that a return is due

If you are satisfied that no return was due, take the action as in PAYE43031 to COYO the year, or PAYE21022 by logging the return as received on the relevant date (19 May). These actions will automatically discharge the penalties. A note should be made on EBS recording the year and reason for accepting the declaration

P11D(b)

Confirm that the employer is no longer providing benefits by asking

  • When were the benefits last provided
  • Why are they no longer provided
  • Why the box on Part 5 of P35 was not ticked to show that no forms P11D were due

If you are satisfied that no return was due, then log the return as received before the relevant date (6 July) and note the reason for accepting the statement and your action on EBS

  1. If the employer has notified their appeal to the Tribunal at this stage, follow the guidance in Appeals, Reviews and Tribunals Guidance (ARTG) at ARTG2210 and ARTG8230. Immediately arrange for the relevant papers to be sent to the Business Review Unit

  2. If the employer has asked for a review at the same time as the initial appeal to HMRC, follow the guidance at ARTG2210. The Decision Maker must send a letter explaining our view of the matter and as soon as this has been done the review time limit begins. The relevant papers should then be sent immediately to the Business Review Unit

  3. Consider the grounds for appeal as follows

E-File penalty appeal - ECSM30080

End of Year (P35, P14) penalty appeal - ECSM31100

P11D(b) penalty appeal - ECSM32100

Further guidance on reasonable excuse can be found in ARTG2250

  • Where you can accept the grounds for appeal go to step 5
  • If you need more information go to step 6
  • If the grounds for appeal do not fit the reasonable excuse criteria and you wish to resist the appeal go to step 7

Grounds for appeal correspond with those in ECSM

  1. Unless there are reasons for suspecting the excuse to be false, uphold the appeal

Note: You would be justifiably suspicious if a customer repeatedly - from year to year - appealed on the grounds of ‘reasonable excuse’.

Using ECS, discharge the penalty(s)

  • A revised penalty determination will be issued automatically to the employer confirming your decision
  • Using ECS Function PENALTY APPEAL access Notes, record the action taken, location of the papers and grounds for appeal
  • Using EBS Function AMEND EMPLOYER SUMMARY access Employer Notes, and record the action taken, location of the papers and grounds for appeal

You need more information

  1. Consider the appeal carefully. If necessary ask the employer for more information / evidence and arrange for the penalties for that year / period to be informally stood over until the appeal is decided

Where after this consideration

  • There is no doubt that the appeal should be upheld, follow action in step 5
  • You have reached a clear conclusion that the appeal should be resisted, follow action in steps 7 - 10
  • If the employer fails to provide further information requested, the appeal should be resisted - follow steps 7 - 10

Grounds for appeal are clearly unacceptable

  1. Issue a letter SA633 (available on SEES) to the employer with a copy to the agent, if applicable, setting out the reasons why the employer’s ‘reasonable excuse’ is not accepted and suggest that the employer reconsiders the matter. This letter offers a review and explains the options available to the employer. You should enclose a request for review form SA634 (available on SEES) if appropriate

Note: The SA633 letter must be sent to the employer with a copy to the agent, even if the appeal was made by the agent on their client’s behalf.

  • Using EBS Function AMEND EMPLOYER SUMMARY access Employer Notes, and record the action taken and the location of the papers
  • B/F for 45 days
  • Using ECS Function SELECT EMPLOYER, update the employer notes and informally stand over the penalties for that year / period until the appeal is decided
  1. If the employer accepts the decision and withdraws the appeal
  • Using ECS, remove the standover and release the penalty
  • A revised penalty determination will be issued automatically to the employer confirming your decision
  • Using ECS Function SELECT EMPLOYER, update the employer notes
  • Using EBS Function AMEND EMPLOYER SUMMARY access Employer Notes, and record the action taken and location of papers
  1. If the employer accepts the offer of a review, and the request for a review is received in the local office

On the day of receipt

  • Acknowledge receipt
  • Immediately forward all papers to the Business Review Unit
  • Using ECS Function SELECT EMPLOYER, update the employer notes
  • Using EBS Function AMEND EMPLOYER SUMMARY access Employer Notes, and record the action taken
  1. If there is no response in the local office after 45 days
  • Check EBS Notes to see if a request for a review has been sent to the Business Review Unit
  • If a review has been requested
    • Ensure that the papers have been sent to the Business Review Unit
    • If not, send the papers directly with a covering note
  • If not, send the papers directly with a covering note
  • If a review has not been requested
    • Issue letter SA636 (Decision Makers deemed determination of appeal) to the employer
    • Using ECS, remove the standover and release the penalty
    • A revised penalty determination will be issued automatically to the employer confirming your decision
    • Using ECS Function SELECT EMPLOYER, update the employer notes
    • Using EBS Function AMEND EMPLOYER SUMMARY access Employer Notes, and record action taken and location of papers