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Sam
Sam, Accountant
Category: UK Tax
Satisfied Customers: 12786
Experience:  26 HMRC expertise, PAYE, Self Assessment ,Residency, Capital Gains, CIS ask for Sam Tax
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Hi. I received some penalty tax notices from 2 different

Customer Question

Hi.
I received some penalty tax notices from 2 different tax years. I only found out in Feb 2013 when I submitted a P85 form after leaving the UK in 2012; they informed me that I was supposed to complete a tax return for 2010/11 and 2011/12 but I had neglected to do so. I had never previously completed self assessment tax returns but my total income changed in 2010/11. I am not sure why i had to complete a 2012 return. After manymonths of waiting for reference numbers, passwords and documents I have only now logged into to the HMRC website and completed them - they were very simple PAYE only and to my delight I found I had overpaid in 2012.

On their website I found the electronic copies of the penalty statements they had sent me in the mail - the first one dated June 2012. They had been sent to an address I had not lived in since September 2009. I wish to appeal my tax penalties based on the fact the statements were sent to an old address and any other factors that may be relevant, such as my ignorance for the need to complete the 2010/2011 return. I would like help to draft the appeal letter to best put forward my case. I would like an expert that has had some work HMRC experience in assessing appeal requests or success in submitting appeals. I can provide more details.
Submitted: 10 months ago.
Category: UK Tax
Expert:  Sam replied 10 months ago.

Hi

 

Thanks for your question

 

Before any assistance can be offered with an appeal, can I ask, did you keep HMRC up to date with your change of address?

Did HMRC advise why for those two tax years, you were required to fall into self assessment ?

Did you owe any money for 2010./2011 ( you advise there was a refund for 2011/2012)

 

Thanks

 

Sam

 

 

Customer: replied 10 months ago.

Hi Sam.


 


Thanks for your response. In regards to my address, I was not aware of the need to update them when I changed address - I guess I have always believed that they get that information from my employer as part of the PAYE scheme. If I am responsible for telling them of my change of address I don't know how they got my old address in the first place. I cannot recall having any past correspondence with the HMRC during the 10 years I lived the UK.


 


The HMRC did not advise me why I had to complete a tax return, only that I had a penalty. After the penalty notice I researched and found that I had just exceeded the PAYE threshold due to an exceptionally large bonus in 2010/2011. After completing my return I found I did owe money for this year. However I owed less than what I overpaid in 2012. I think that shows some kind of credibility that I was not trying to avoid my obligations - I just didn't know I had obligations.


 


There was also quite a delay in completing my returns after receiving the penalty notice because I had moved to Australia. I contacted them immediately but I had to request a UTR, then an online password and a statement of earnings because my documents were not in Australia with me. With postage delays this took several months!


 


If you need anything else please let me know.


 


Regards,


Dion


 

Expert:  Sam replied 10 months ago.

Hi Dion

 

Thanks for your response, apologies for the delay in mine, I was getting my children up for the day.


I am afraid it is entirely your responsibility to keep HMRC informed of your changes of addresses, and whilst changes can be picked up with changes of employer (from a P45 or P46) or when the employer mergers, is bought out (when up to date information is supplied) as a general rule, changes are only affected by the individual informing HMRC.

 

As your pay was increased due to a large bonus in 2010/2011, this would have been the first instance for self assessment being triggered, and I,m sure HMRC are not suggesting that you were avoiding your obligations, but clearly were having no luck or success in fully reviewing the position due to any correspondence being issued, not reaching you.

 

Then clearly the further delay was due to you not being in the UK, and whilst they would fully appreciate, that getting your unique taxpayer reference number, and setting up and activating the HMRC online services, would have taken time, this I am afraid still does not constitute a reason to appeal.

 

For any appeal to be successful, the fault has to be solely HMRCs, and if we look objectively at their position we have to ask

1) Did they have your up to date address from you, and failed to update this - the answer is no

2) Could you have found a quicker method to file the outstanding returns - yes, you could have engaged an accountant to act for you, you could have sent in paper returns, or maybe found a family member/friend in the UK to act for you.

Were further delays caused by HMRCs delay, in dealing with the issue of the appropriate information you needed - in part yes, as the system can be a little slow, but was this solely the reason your tax returns were late - and the answer is no, this just delayed matters further.

 

If there was any chick of possibility that there were strong grounds for appeal, I would certainly advocate this, as there are many times that HMRC are to blame, and when this takes place, then I will offer the appropriate arguments, to secure a successful appeal ( I have worked appeals as an HMRC employee for 26 years, and since I have practiced as an accountant, working many appeals and taking cases to tribunal)

I am sorry to say, that this is an appeal, in my opinion, that cannot be won, but if you feel you wish to appeal anyway - then you have, in essence, nothing to lose.


I wish the response was more favourable for you.

 

Thanks

 

Sam .

 

Customer: replied 10 months ago.

The expert did not believe I have grounds for appeal and so did not offer to fulfill my request. Sam is probably correct and I appreciate her explanation but it's not what I asked for. I have received other assistance now.

Expert:  Sam replied 10 months ago.

Hi

 

Thanks for your response and your poor rating

 

Its not a question of belief., but knowledge that leads me to advise you do not have grounds for appeal, and I just hope you are not taking paid representation, as this would be in essence throwing money at a problem, that has no grounds for successful appeal.

 

I would not be doing my job properly if I gave you false hope here, as the initial issue lay solely with you, not updating your address.

 

I worked for HMRC for 26 years (dealing with appeals amongst other duties) and have practised as a tax adviser since 2009, and I have won many (too many to count) cases at HMRC level, and 15 at tribunal, all on grounds where there is a case to argue, hence the success rate! If there were any grounds for appeal I would happily draft you an appeal letter, but there are no grounds you can win with.

Would you rather me have lied and given you false hope?

If so, then please leave the poor rating as it is, but if you felt I dealt with you with honesty and integrity, then please do review the rating you gave me.

 

Much appreciated

 

Thanks


Sam

 

Customer: replied 10 months ago.

Hi Sam,


 


Thanks for your reply. I appreciate your honest and balanced opinion and would not ask you to lie.


 


Perhaps I was not very clear about what i was asking / hoping for which was to get an idea of what circumstances have been successfully used for appeal and how they might apply to me. A letter would be composed of the elements most likely to get a positive response.


 


For instance, I have been fined the maximum amount, thousands of pounds, for not submitting 2 tax returns. I think it is excessive for what was a small underpayment and a large overpayment. Are the values relevant? Is there some leeway around proportionality?


 


Also, the reason I didn't fill in the returns was because I wasn't aware I had to - having never done one before and not receiving a return in the mail. Has there ever been a case where an appeal has been successful on similar grounds? You bring up my responsibility to notify HMRC of my change of address. Where does the burden of proof lie to show whether this was done? With me or HMRC? It was over 4 years ago and I don't remember every time I call a service provider - HMRC, utilities, banks - do you? Would it even make a difference if I could prove that I had notified them?


 


You say I could have completed my returns earlier. Well the HMRC became aware of my address in Australia in January (approx). They posted a letter in February. It arrived at the end of April. I had no documentation and had to request a statement of earnings and contact old employers. I wasn't informed I could complete a paper return only a online one. What an accountant could do for me without my earnings or benefit statements - I was told they would only post them to me. What date is reasonable to expect me to complete the return? What factors could be argued for a delay?


 


If the HMRC


1) will always say that its my responsibility to know when I have to complete returns regardless of circumstances


2) they have no compassion or incentive to be reasonable


 


then you are right and there is no point continuing.


 


 


However I have also read "An excuse is likely to be reasonable "where the taxpayer acts in the same way someone who seriously intends to honour their tax liabilities and obligations would act," the tribunal's presiding member Anne Redston wrote.


 


Regards,


Dion


 

Expert:  Sam replied 10 months ago.

HI Dion

 

Thanks for responding.

 

If you had changed your address, then the fault would lie entirely with HMRC, as this whole business would have lay as a burden they has caused, and my advise regarding the appeal would be to argue the position fully.

This is why I asked a few questions regarding the circumstances.

 

The burden of proof will lie with you to prove this factor, and copies of letters, or a note written down with a date of a phone call etc are sometimes information that individuals keep as records for themselves (although I do appreciate that not all individuals keep records of the contacts they make)

 

Whilst there were delays in

1) The tax returns being issued and

2) The information being sent to you so you could compete the forms

Those delays only existed due to the fact that the address was not changed at an appropriate time, so that the original forms could be issued to you for completion (they initially would be issued after each 5th April and for each one you would have had until 31st Oct, to send back a paper return, or until 31st Jan if filing the return through HMRC free online services.

I have NEVER seen an appeal succeed when the initial fault lay on the taxpayer, who failed to update address details. Because if the first occasion fails, then no further consideration is made to other factors.

 

Had you engaged and accountant and given them authority to act for you, they would have approached HMRC directly for the information, that they held, but I take on board your comments that it took the time it did, for that information to be at your disposal to complete the tax returns fully.

 

The penalties for 2010/2011 onwards are based on

Penalties for missing the tax return deadline

Length of delay


Penalty you will have to pay


1 day late


A penalty of £100. This applies even if you have no tax to pay or have paid
the tax you owe.


3 months late


£10 for each following day - up to a 90 day maximum of £900. This is as well
as the fixed penalty above.


6 months late


£300 or 5% of the tax due, whichever is the higher. This is as well as the
penalties above.

12 months late£300 or 5% of the tax due, whichever is the higher.
In serious cases you
may be asked to pay up to 100% of the tax due instead.
These are as well as
the penalties above.

 

So you can see the penalties for the 201/2011 has accrued due to the on going delay. whereas the 2011/2012 penalty will be lesser.

 

 

I also note your comments as written by Anne Redston, however you fail the reasonable excuse from the first instance, as it was solely due to the failure to let HMRC know your new address that the problem arose, and whilst I am sure even HMRC would agree that there was no an intent on your part to NOT fulfill your obligations, HMRC will state that you took that ability away from them, by not ensuring the information they held for you was accurate and up to date.

So reasonable excuse, is

1) Sudden illness of the taxpayer or the accountant or close family member

2) Fire destroys documents

3) Postage strike

4) Failure for HMRC to act in a timely fashion

and so on.

But you cannot argue reasonable excuse, when, but for the fact, HMRC did not have your new address, as they issued the papers at the appropriate time initially, and you had the same time limits as everyone else, but the papers went to an address that you no longer lived at.

 

DO feel free to ask follow up questions, I would be more than happy to write a letter of appeal for you, if you still wish this. But I know from my vast experience and having seen every reason for delays that could exist, what is likely to be considered and what is not, and whilst I understand how you feel, in terms of the cost of the penalties, these are set, and its all or nothing with the charges set.

 

The bottom line is, if there is no way to prove that you did in fact keep HMRC up to date with your change of addresses, then there is no way HMRC can consider the appeal for anything that occurred thereafter.

 

Thanks

 

Sam

 

 

 

 

 

 

 

Customer: replied 10 months ago.

Hi Sam.


 


If you read through my first reply I said 'I cannot recall having any past correspondence with the HMRC'. This does not mean I did not call or write to them. I cannot remember contacting the DVLA either but I can see that my driving license was updated. What is likely is that I looked up instructions on the internet, followed them and continued on with all the other things you do after moving. However the fact the address wasn't changed makes me think twice about it - do telephone operators make mistakes?



In my mind there has to be some element of trust. Is it reasonable to expect someone to keep hand written records of telephone conversations for 4 years? Is there a precedent for this? Can the HMRC show that I did not call?



This was the crux of my appeal which I have already submitted. You insist that I have no reasonable excuse when there is doubt as to who was at fault in the first instance. This was why I gave you a poor rating and I hope you can see where your approach, which seems very much the way the HMRC would operate, is not necessarily in my best interests.



Regards,


Dion


Expert:  Sam replied 10 months ago.

Hi

 

Thanks for your response

 

Only you (and HMRC) will know whether you had any past correspondence with them,and I can advise every contact made to HMRC by telephone has to result in a logged entry into that call as well as security checks undertaken, and a logged note of what the call was about.

So you should first establish with HMRC whether you did ring them and advise them of your updated address, and you can either do this by

1) ringing and just asking OR

2) Ask for entries from the notes screen on your tax records (both self assessment and PAYE) under the Freedom of Data Act ( which will take a little longer but at least will allow you to see for yourself, what, if any communication was made by you to HMRC)

So yes HMRC can show you did not call, as everything is logged, just be virtue of security checks carried out to allow them the initial access to your records.

 

Its not a question of whether you kept hand written records - its whether HMRC can verify evidence of your attempt to contact them - either through your records or theirs, but yes it is reasonable to keep records, I do with everything, as I guess I know the importance of such matters, and I accept we all be more organised and aware with hindsight!

 

I do not dispute that my expertise opinion of whether your appeal would be successful is NOT in your best interests, as its not what you want to hear, but I also am a pragmatic and honest person, and would never wish to offer any customer, that I have dealings with, a course of action that could be time wasting (allowing interest and penalties on taxed owed to increase) and just to line my own pockets (so taking on work I know is not going to have any chance of being effective to the cost of that customer)

 

My advise is to

1) Rule out the fact that you did or did not advise HMRC of a change of address

2) If you did indeed inform them, then you have an appeal worth pursuing successfully.

 

If you wish to have help with any letter under the Freedom f Data act, then I would be happy to do this for you (its a very straight forward letter) as I really would like to have this poor rating lifted to one that reflects the amount of work and help I have offered.

 

Thanks

 

Sam

 

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