Records: maintain taxpayer record: HMRC delay in using information
Formerly known as ‘Official Error’, Extra Statutory Concession A19 allows us, as long as certain strict conditions are met, to give up income tax and capital gains tax where HMRC has failed to make proper or timely use of information. Although the concession does not expressly mention Class 4 NIC it should be considered for remission in the same way as the associated income tax. The text of the concession is set out in the PAYE Manual at PAYE95005.
Interaction with SA
‘Process now, check later’ allows HMRC an enquiry window in which to correct mistakes, whether its own (for example, processing errors) or the taxpayer’s. By the same token, the closure of the window (for 2007/08 onwards in most cases 12 months after receipt of the tax return, for earlier years in most cases 22 months after the end of the relevant year) gives the SA taxpayer a measure of statutory protection against belated tax demands. These factors, together with the greater responsibility placed on the taxpayer under SA, mean that ESC A19 will not normally apply in SA cases. However, you may come across a case where you feel that the concession should be given (or where the taxpayer claims it), particularly where the taxpayer is also within PAYE and ‘exceptional circumstances’ apply. In such a case the principles to be followed are in the PAYE Manual at PAYE95000 onwards. In every case bear in mind that to qualify for remission of tax it must be reasonable for the taxpayer to have believed his or her tax affairs were in order.
Delay by HMRC in using information
The main qualifying condition is whether the arrears result from HMRC’s failure to make proper and timely use of relevant information. Timely means that arrears are notified 12 months or less after the end of the tax year in which arrears arose.
If the main criteria are met, officers must then consider whether it is reasonable for the taxpayer to hold the belief that their tax affairs were in order, given the facts and circumstances of the case (see PAYE90581).
Where a return is received late, that is, after the statutory filing date for that return, we must consider whether that failure played any part in the taxpayer being advised of the arrears outside the ESC A19 time test. If that is so, then we may deem the notification as being made by HMRC within 12 months of the end of the tax year in which the arrears arose.
HMRC processes information that was received in January 2015, relevant to income for the year 2015-16. This information leads to arrears identified following receipt of the customers 2015-16 return in May 2017.
The taxpayer was sent a 2015-16 notice to file on 6 April 2016 with a filing date of 31 January 2017. Although HMRC did not make proper use of information, we were prevented from notifying the arrears in a timely manner because the taxpayer failed to submit their tax return by the filing date or subsequently, before 5 April 2017.
In such circumstances the late notification of arrears is solely the result of the taxpayer’s late submission. We should therefore deem the notification as being made by HMRC within 12 months of the end of the tax year in which the arears arose.
The time test is not met and the request under the concession should be refused.
HMRC fail to make proper use of information in 2014-15 and as a result the taxpayer is in arrears for that year. The taxpayer, who completes annual returns, sends us their paper 2014-15 tax return on time but we misplace it.
When we finally process the return we inform the taxpayer of the arrears but not until the 2016-17 tax year, more than 12 months after the year in which the arrears arose. That means we also fail to notify the arrears in a timely manner. The time test will be met and the concession will apply if it was reasonable for the taxpayer to have held the belief that their tax affairs were in order.
Keying errors are discussed and defined in business area ‘Returns’, section ‘View And Amend Return’, subject ‘Correcting Keying Errors Made’ (SAM124050). There is no time limit for us to correct a keying error, but if we do so more that 12 months after the end of the tax year in which we received the return, then ESC A19 may have to be considered. However, in correcting the error we would simply be restoring the return on our records to its original state, as completed by the taxpayer. In most cases it would be difficult for the taxpayer to claim that it was reasonable for him to believe his affairs were in order while the return, as captured, differed from the version he had filed.
Liability already notified
SA liability that is suspended or removed from the taxpayer’s statement in error does not qualify for remission under ESC A19.
General guidance on over-repayments in business area ‘Repayments’ distinguishes between repayments of ‘money’ and repayments of ‘tax’. Many over-repayments of ‘money’ will not qualify for remission under ESC A19 because they do not arise from a failure to make use of information concerning the customer’s tax affairs, for example, a payable order sent to the wrong person or a repayment of a sum exceeding the tax paid.
All other cases should be reviewed using the guidance in the PAYE Manual at PAYE95000 onwards.
Each processing office must keep an electronic, central record entitled ‘HMRC Delay (ESC A19)’ to record for each case the tax given up or the over-repayment recovered. The record should contain three lists marked PR, PW and SA. Lists PR and PW are for non-SA cases only. On list SA the following headings should be used
- Consecutive number
- Taxpayer’s name
- Year(s) - for cases involving more than one year show each year on a separate line with its own consecutive number
- Amount of tax given up in each year
- Amount of Class 4 NIC given up in each year
- Authorised and initials
- DR Reference (where appropriate)
The figure should be totalled annually at the end of each October and reported on LOMR (Office Level Data - Management Statistics) in the following December. Where more than one year’s tax or Class 4 NIC is given up in respect of the same customer, each year should be counted as a ‘case’ for LOMR purposes.
If you decide that SA tax or Class 4 NIC should be remitted under ESC A19 follow the procedure in the Action Guide (SAM101121).