HMRC is to change its Pay As You Earn (PAYE) system to detect owed deductions on a monthly basis, rather than yearly, in a bid to make the system easier for employers.

Using Real Time Information (RTI), tax and deductions will be transmitted to HMRC each time an employee is paid, meaning employers will no long be required to provide information using forms P35 and P14 after the year end or to send p45/46 when employees start or leave employment.

The phased introduction of RTI will begin in April 2012 with an initial pilot. HMRC hope to increase the number of employers joining RTI during 2012-13 following the scheme’s success.

However some advisors and employers are being a tad nieve about the introduction of this, believing all they read. Please do not fall into this trap, the number of professional bodies that are urging HMRC to delay its introduction is huge but HMRC are beligerantly pushing ahead, which spells a recipe for disaster. Still not convinced, well don’t forget there are now in year business record checks and potential for in year penalties, to encourage you. If you need advice on this and more importantly a review of what you are doing to make sure you can handle this, call us today on 0800 917 9176

During a business records check (BRC) an HMRC officer will view the business records of the current accounting period and assess whether those records are ‘adequate’. In this context ‘adequate’ should mean the records are sufficient to compile accurate tax and VAT returns, but the BRC brief implies the HMRC officer will be looking for the following errors in the business records:

• Understated sales;
• Overstated expenses; and
• Private expenditure claimed as business costs.

If the HMRC officer concludes the business has failed to keep adequate records he can impose a penalty of up to £3,000.

HMRC tested their BRC programme between 4 April and 15 July 2011, during which up to 800 businesses were advised about their records, but no penalties were levied. However, since mid September HMRC has expanded the BRC programme and is increasing the number of HMRC officers involved from 30 to 120. HMRC plan to conduct approximately 12,000 BRC visits before 1 April 2012, and a further 20,000 BRC visits in 2012/13. On those numbers at least one of your clients is likely to be subject to a BRC in the next 18 months.

Business who were visited in the first stage of the BRC programme, and who were judged to have issues with their record keeping, are receiving follow-up letters from HMRC requesting a repeat visit; ‘to check that the appropriate improvements have been made.’ Remember the records under inspection are those raw documents that have not yet been sorted or vetted by someone who understands exactly which expenses can be claimed for tax purpose

In this second stage of the BRC programme HMRC is prepared to impose penalties for serious record keeping failures. However, certain professional bodies, including myself are not convinced of the legal basis for charging such penalties, before the tax return has been submitted.

Employer Annual Returns must be sent to HMRC by the 19 May filing deadline. Failure to do so will almost certainly result in a late-filing penalty. In previous years, an extra-statutory concession gave employers extra time before HMRC charged a penalty, but this has now been withdrawn.

And from this year, employers will be liable to a penalty if they file their annual return on paper (with some very limited exceptions, such as certain individuals who employ their own carer). Last year, no penalty was charged for employers with five or fewer employees, but these transitional arrangements have now ended.Penalties

Very quietly HMRC have announced that there is a new CIS penalty regime being brought in.

From October 2011, the penalties for late or non-filing of a contractor’s monthly return within the Construction Industry Scheme are changing.

The first return falling within the new penalty regime will be the return for the month ending 5 November 2011.

The following penalties will apply to that return and all subsequent months’ returns that are not filed or filed late:

• A fixed penalty of £100 immediately a return is late.
• A second, fixed penalty of £200, two months after the filing date if the return is still outstanding.
• If the return is still outstanding six months after the issue of the first penalty, a tax-geared penalty is charged which is the greater of £300 or 5% of the amount of deductions shown on the return.
• If the return is still outstanding twelve months after the issue of the first penalty, a further tax-geared penalty is charged which is the greater of £300 or 5% of the amount of deductions shown on the return. Higher levels of penalty apply where, as a result of the failure to file the return on time, information has been deliberately withheld.

Interest will be chargeable on any penalty paid late.

The legislation for the change is at schedule 55 Finance Act 2009.

Paragraph 13 of Schedule 55 to Finance Act 2009 introduces a penalty capping provision. The fixed penalties within the capping period will not exceed a maximum of £3,000. The capping period starts on the day of commencement (the date the contractor advises HMRC that they will first pay, or have first paid, a subcontractor) until the date they first file a CIS monthly return. Tax-geared penalties of 5% of the amount of deductions shown on the returns will also apply in the capping period where the return is submitted over 6 and 12 months late. There will be no fixed minimum charge of £300 when the capping period applies.

Mistakes can be expensive so contact EICG on 0800 917 9176 to find out about our Construction Industry Scheme (CIS) reviews

HMRC announced in June that Extra Statuory Concession B46 (ESC B46) allowing a seven-day grace period for late employers’ and contractors’ returns will cease from 31 March 2011.

ESC B46 established the principle that penalties would not be charged when employers and contractors submitting tax returns and CIS forms had taken “all reasonable steps” to file their returns on time, but were not able to do so due to unforeseen circumstances such as postal delays.

With the advent of online filing, which is required for P35s and P14s and will become mandatory for Corporation Tax returns from 1 April, HMRC considers the concession to be “redundant” because the delays it was intended to address will no longer happen. Returns must therefore reach the department by their due date or incur a late filing penalty of £100.

Confirming the new penalty regime HMRC explained: “Any customers filing a return late will, as now, be able to request us to remove any penalty, if they believe they had a reasonable excuse for the delay in filing. We will consider every case on its own merits. Customers can also appeal against the penalty to a Tribunal.”

The Budget announced a welcome break for new businesses outside the South East, that of a National Insurance Holiday giving new companies the chance to take on employees, the first 10 of which will not have employers NIC due for the first 12 months, giving a potential saving of £50,000 BUT and it is a big but for new businesses. The Budget statements have been released and alluded to the fact that new businesses from 22 June 2010 would potentially qualify but the scheme itself was unlikely to be ready until September – so immediate confusion caused – qualifying companies from 22 June but scheme not ready until September so many new businesses are thinking that the NIC holiday will apply to them if they set up business after 22 June – yes and no – not all companies will qualify (exclusions on fishing, agriculture and mining already mentioned) but the NIC holiday CAN’T start until the scheme officially starts, so even if you set up a company (and are trading) in the period 22 June to official scheme start up you CAN’T apply the NIC holiday, you need to operate the “normal” NIC rules and this may catch out a lot of new businesses. The NIC holiday will start when the scheme officially starts whether it be September of another future date. It is important that companies do not fall foul of this rule as penalties are drachonian. If you are in any doubt contact the employment tax expert

It has now been a year since HMRC introduced the internal review system which was intended to be a bridge between the case worker and the First Tier Tribunal in cases such as tax investigations, employment status cases and HMRC penalties to name but a few areas. Initially viewed with suspicion, and still to a certain extent, HMRC have published figures on the process to date.

Unrepresented tax payers have been relatively enthusiastic to use the system, probably on the basis of what have they got to lose – this made up 81% of those using the system. There are however strong distinctions to be drawn between automatic penalty cases where approximately half were cancelled compared with those that are far more substantiative. Even the latter category showed that about 25% were either cancelled or varied – so there is a definite moral here – don’t reject the internal review system out of hand it can be a useful process if dealt with correctly you just need to make sure the person dealing with your case understands the process. So, if you need advice call us today on 0800 917 9176

HMRC have recently published details of their internal review of tax enquiries, employer compliance reviews, tax investigations etc in relation to cases that have occurred since 1 April 2009 which does make for interesting reading:

“Outcomes excluding penalty cases 3,443 cases out of 18,526

Upheld: review complete – 2,603 (76 per cent)
Deemed Upheld: time limit expired – 20 (1 per cent)
Varied – 349 (10 per cent)
HMRC decision cancelled – 471 (14 per cent)

Outcomes penalty cases 15,083 cases out of 18,526

Upheld: review complete – 6,281 (42 per cent)
Deemed upheld: time limit expired – 48 (0 per cent)
Varied – 793 (5 per cent)
HMRC notice cancelled – 7,961 (53 per cent)”

In basic english this means that 24% of non penalty cases were varied or cancelled and a staggering 58% of penalty cases were varied or cancelled

The results clearly show that it is in your interest whether you are an individual or a company (where there is reason to doubt HMRC’s assessment) to complain. We would also add that it is advisable to obtain specialist help when HMRC comes a calling, it’s not a time to dabble so give us a call on 0800 917 9176

It’s obviously the season for HMRC penalty madness, whether it be in respect of the Construction Industry with CIS late filing penalties or self assessment penalties, half a rain forest is being wasted in incorrect paper penalties. However, HMRC have stated that it is no longer the computer that is at fault (I always mistakenly thought a human had to programme/operate a computer but no, they have a mind and life all of their own!), instead it is human error caused by a lack of following procedure. Now anywhere else and you would be questioning a) the training and b) the ability for a complete non review process before these penalties are sent out.

How bad can it be, well one poor sole in Cambridge obviously has an obsessive stalker in the form of HMRC as he received 52 envelopes from HMRC, each containing 4 letters demanding sums ranging from £100 to £3,000 (grand total £39,000).

The taxpayer is appealing the fines, which have been suspended pending a final decision.

HMRC told the Cambridge News:

“Incorrectly issued penalties are not the result of a system problem but failure to correctly follow procedure – this is being put right.“

How many of you have actually looked at the drachonian penalty regime attached to the Construction Industry? Quite frankly if you’re sad enough to sit down and work out the completely disproptionate level of penalties that can be charged for minor infringements then it is absolutely staggering that this regime was allowed in the first place but a challenge is going to be heard because of the case of  SKG (London) Ltd v HMRC. Judgement was handed down on 3 December 2009, in which the Tribunal for the first time analysed the new scheme in light of safeguards in European Law which protect against arbitrary or disproportionate penalties.  The Judges in the case ruled that: “…the Tribunal is left in doubt as to whether or not the statutory provisions for the penalty for late filing of a return…satisfy the requirements of the Human Rights law principle of proportionality”.

Neither side appointed Counsel for the hearing, so the Tribunal has not yet had the benefit of detailed legal submissions and has adjourned its final decision until further legal arguments have been considered – this should be sometime between March and July 2010.  So, watch this space, as it seems that HMRC could be in for a difficult time and the entire new late filing penalty regime could be under threat.