After winning a case on behalf of a client in which HM Revenue & Customs (HMRC) was forced to back down and write-off more than £2,000 of previously demanded tax, Elaine Clark of CheapAccounting.co.uk has accused the tax office of not applying its own rules correctly.
“This is a terrible case. [The taxpayer] receives incapacity benefit as well as an NHS pension,” Elaine said. “HMRC was informed of the two sources of income by the Benefits Agency and the NHS, but did not act on the information provided.”
Elaine claimed under the provisions of Extra Statutory Concession A19. The full version of the concession is quite lengthy, but basically it says the tax office must waive tax owed in certain circumstances if it makes a mistake. You could claim if:
(If the tax office made more than one error, the time limit may not apply.)
If you have been sent a bill and you feel this applies to you, then you may wish to seek further advice. Alternatively, there are a number of draft letters available online. (Search for “Sample letter ESC A19”.)
HMRC correctly said it could not comment on individual cases and that the concession would in all likelihood apply only to a small number of cases.
The problem arises because our tax laws place the onus squarely with the individual. Basically, if your tax is wrong, it’s your fault – even if you were not aware of the situation or if the tax office made mistakes. This is clearly ludicrous, especially given the complexities of our tax laws.
Which is why we have ESC A19. It is an incredibly powerful clause – without it HMRC would be almost unaccountable. Six million people could be affected by recent mistakes by the tax office, through no fault of their own, so the usual rules should not apply. Television programmes such as Panorama and cases such as this have highlighted the problem.
Elaine is right – HMRC is failing to instigate the concession when it could do. It is an Extra Statutory Concession that is being debated, so surely it is not beyond HMRC’s remit to introduce a temporary measure – something as simple as sending out a slip inviting a claim, with space for the relevant details perhaps.
Ethically, this would be the right thing to do, but it would of course cost HMRC and by default the government.
Julian Shaw, Founder of The Practice Hub
Amazingly, a change in policy means that if Companies House compulsorily closes your company you could avoid paying any Corporation Tax you owe.
How? It seems that Companies House has adopted a new approach to closing a limited company (by a process known as “striking off”) if that company does not complete an annual return.
An annual return, of course, is a snapshot of certain company information at the made-up date (ie address of registered office, details of directors etc). It is different to the company accounts and does not contain any financial data about the company’s performance.
There are no fines for filing the annual return late, unlike if you file your accounts late, where fines start at £150 and rise to £1,500 for private companies.
For clarification, I telephoned the Companies House helpline and was told: “We changed this in about August 2009. If companies do not reply to our letters, we begin the ‘strike-off’ after about two to three months. The change was as a result of a policy decision – not a change in law.”
As a result of the action by Companies House to close the company, technically, the company no longer exists. And a company that no longer exists cannot pay Corporation Tax.
Because Companies House took this action, the directors or shareholders have not avoided their duties to inform creditors.
So let’s just say you have a company that has traded, made a profit but for whatever reason has been compulsorily closed down by Companies House, then you could just start another one and do the same again.
It seems that while HMRC is told of these compulsory closures, it is not doing anything about them.
It could easily stop the close down until it has the final accounts and tax paid by the limited company.
Why doesn’t HMRC do something about it? That’s the question I would love to have answered.
Should HMRC do something? Well in my opinion – yes. At the moment, in this regard, HMRC is avoiding collecting taxes. Mind you – should we be surprised about another HMRC fiasco?
While I totally disagree with the ethics behind owners of companies taking advantage of this loophole, it is legal and done with full knowledge of Companies House and HMRC. So who am I to question it?
Caution – if the company is closed the business bank account will be closed and the money belongs to the Crown, as will any other company assets.
There may also be other reasons for not wishing your company to be closed down. However, I’m sure there will be a few who will enjoy making use of this loophole.
Elaine Clark, www.cheapaccounting.co.uk