SAM101120 - Records: maintain taxpayer record: HMRC delay in using information

Formerly known as ‘Official Error’, Extra-Statutory Concession A19 (ESC A19) allows us, as long as certain 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 or the High Income Child Benefit Charge (HICBC), they should be considered for remission in the same way as the associated income tax. The principles of the concession, Policy intent and the text of the concession are set out in the PAYE Manual at PAYE95000 onwards.

Interaction with SA
Delay by HMRC in using information
Keying errors
Liability already notified
Over-repayment
Office record
Procedures

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 requests it), particularly where the taxpayer is also within PAYE. 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, the relevant year.

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 PAYE95081).

Where a return is received late, that is, after the statutory filing date for that return, or the return contains incorrect entries, we must consider whether the taxpayer’s failure or oversight played any part in them being advised of the arrears outside the ESC A19 time limits.

For ESC A19 to be met, it must be HMRC failure to make proper and timely use of information, not the taxpayers.

If the taxpayer has played a part in the actual arrears being notified late, then we may deem the notification as being made by HMRC within 12 months of the end of the relevant tax year, the year in which the arrears arose.

Example 1

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 taxpayers 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 untimely 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 concession should be refused, irrespective of when the relevant information was received that we failed to act on.

Example 2

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 concession will apply if it was reasonable for the taxpayer to have held the belief that their tax affairs were in order.

Keying errors

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 than 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.

Over-repayment

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 taxpayer’s 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.

Office record

Each processing office must keep an electronic, central record entitled ‘HMRC Delay (ESC A19)’ to record each case where the tax (including any over-repayment) has been given up.

Procedures

If you decide that SA tax, the HICBC or Class 4 NIC should be remitted under ESC A19 follow the procedure in the Action Guide (SAM101121).