Fane v Revenue & Customs [2011] UKFTT 210 (TC)

FTT-Tax
Fane v Revenue & Customs
[2011] UKFTT 210 (TC) · 2011-03-25
[1]This is an appeal against a penalty assessment under Schedule 24 Finance Act 2007 issued on 17 June 2010. The penalty relates to the tax year 2008 -- 2009. There are two issues in this appeal. First, whether the Appellant was careless when he made an error on his 2008 -- 2009 income tax return. The second issue is whether the penalty should be suspended. The facts[2]The evidence consisted of a bundle of documents (including correspondence) prepared by HMRC. In addition, Mr Woodroff (a Higher Officer of HMRC) gave oral evidence.[3]We find the following facts.[4]The Appellant was employed by BNP Paribas ("BNPP") as Head of the Debt Capital Markets Fixed Income Group until his employment was terminated in February 2009.[5]In October 2008 the Appellant received a stock payment from BNPP. The income tax to be deducted under the PAYE system in that month was £40,302. This amount exceeded his gross salary in that month. BNPP therefore made an advance of £30,729.12 to cover this amount and his net pay was reduced to nil. This advance was later deducted from his termination payment paid on 5 March 2009. The Appellant thought that the £30,729.12 deduction made by his employer to cover his PAYE liability was an actual deduction of PAYE.[6]The payslip provided by BNPP to the Appellant for 5 March 2009 was as follows: ALLOWANCES DEDUCTIONS YTD & NET PAY IN LIEU 30,000.00 TAX 49,920.80 TAX 49,920.80 EXGRATIA 6,300.00 NAT INS 2,561.50 NI EES 2,561.50 CIP 219 604.82 ADVANCE 30,729.12 GROSS 249,604.82 EXGRATIA 6,300.00 TOTAL 255,904.82 TOTAL 83,211.42 NET PAY 172,693.40[7]The payslip bore various manuscript comments and figures. We were not able to determine who made these comments or at what time they were made.[8]The Appellant accepted that his income tax return for 2008 -- 2009 was inaccurate, as described above. The inaccuracy was discovered when HMRC conducted an enquiry into the return under section 9A Taxes Management Act 1970 ("TMA").[9]The purpose of the enquiry was to address the issue of a discrepancy in the employment income and tax deduction entries on the Appellant's tax return when compared with the employer's return. The discrepancy was that the employment income, including the termination payment, disclosed on the Appellant's return amounted to £504,605.00 when compared with an amount of £498,306.08 on the employer's return. The Appellant, on his return, showed the amount of tax deducted as £145,778.00 in contrast to the figure returned by the employer of £110,486.80. He had incorrectly assumed that the amount shown as a deduction in respect of the "Advance" on his payslip was a deduction of PAYE.[10]The Appellant believed that the net amount paid to him had had tax already deducted from it in respect of the stock payment. Consequently in his income tax return he overstated the amount of tax deducted from his termination payment giving rise to an additional net tax liability of £30,771.[11]The penalty charged was £4,615.65 (15% x £30,771).[12]There were other errors on the Appellant's return, although much smaller in scale. For example, his employment income was overstated by £6,300. In addition, certain national insurance deductions were incorrectly recorded as income tax deductions.[13]At or around the time that the mistake was made on the income tax return, the Appellant was involved with a stressful legal dispute with BNPP concerning the termination of his employment.[14]HMRC charged the minimum penalty (15%) for a prompted disclosure. The maximum penalty for careless behaviour would have been 30%, but this was reduced to 15% on account of the high level of cooperation received from the Appellant and his advisers.[15]In the course of correspondence with HMRC, the Appellant's advisers applied for suspension of the penalty under paragraph 14 Schedule 24 Finance Act 2007. HMRC refused to suspend the penalty because, in their view, the legislation required compliance with a condition of suspension that would avoid further penalties in similar circumstances. In their view, the Appellant's employment had ceased and the same or similar circumstances were unlikely to rise again.[16]Mr Woodroff gave evidence as to the circumstances of the enquiry into the Appellant's tax return. In his witness statement, he expressed the view that the Appellant's behaviour amounted to a failure to take reasonable care. This seemed to us simply to be an expression of opinion. Mr Woodroff was not called as an expert witness but rather as a witness as to fact. We regarded this evidence as inadmissible as to the question whether the Appellant had, in fact, been careless but that it was admissible as to the question whether HMRC had formed the opinion that the Appellant had been careless. It was not disputed that HMRC had formed the opinion that the Appellant's error on his tax return was careless. What was in dispute was whether the Appellant had been careless.[17]Mr Woodroff explained that he considered the Appellant's disclosure was "prompted" because the inaccuracy was discovered as a result of HMRC's enquiry. It was not disputed that the disclosure of error on the Appellant's return was prompted.[18]Mr Woodroff further explained the factors which he had taken into account when deciding not to suspend the penalty pursuant to paragraph 14. In his witness statement he said:
"The possible suspension conditions, in accordance with HMRC Compliance Handbook guidelines were fully considered. I decided that the overriding factor was as indicated in the Handbook at CH 83130, CH 80 3150 and CH 83160., was that conditions needed to be set that, if met, over a set period would help Mr Fane avoid an inaccuracy in his return arising due to similar circumstances as those occurring in his 2008 -- 2009 tax return. My decision included the opinion that there could be no realistic expectation of problems arising in payments relating to a termination of employment, in other words it was a "one-off event", consequently as future conditions can not be set the penalty can not be suspended."
[19]In his oral evidence Mr Woodroff confirmed that he had considered HMRC's Compliance Handbook guidelines. In his view, he could only suspend the penalties under paragraph 14 if appropriate conditions of suspension could be imposed. In particular, the condition(s) would have to prevent similar inaccuracies occurring again. He came to the conclusion that the guidelines had the result that conditions could not be applied to the circumstances which led to this inaccuracy.[20]Mr Woodroff considered that the stock payment and the misunderstanding as to PAYE led to the error on the Appellant's tax return. When cross-examined by Mr Lever, Mr Woodroff stated that he believed that the HMRC guidelines to which he had referred did not allow him to consider imposing conditions. The conditions had to prevent similar inaccuracies.[21]The Appellant appealed on 18 July 2010 on the basis that the he had not been careless and he appealed against the decision not to suspend the penalty. Relevant legislation[22]Penalties may be charged under Schedule 24 Finance Act 2007 ("Schedule 24"). Under paragraph 1(1) (a) a penalty is payable where the taxpayer gives HMRC, inter alia, a return and two further conditions are satisfied. The first condition is the document contains an inaccuracy which amounts to, or leads to an understatement of the taxpayer's liability to tax. The second condition is that the inaccuracy was careless or deliberate.[23]It was common ground that the return in this case contained an inaccuracy which led to an understatement of the Appellant's liability to tax.[24]There is no suggestion that the inaccuracy was deliberate.[25]Paragraph 3 (1) (a) defines an inaccuracy in a document given by the taxpayer to HMRC as "careless" if the inaccuracy is due to failure by the taxpayer to take reasonable care.[26]Paragraph 4 (1) (a) sets the penalty for careless action as 30% of the potential lost revenue ("PLR"). Paragraph 5 defines PLR as the additional amount due or payable in respect of tax as a result of correcting the inaccuracy.[27]Paragraph 9 and 10 permit reductions in a 30% penalty where a disclosure is prompted. It is common ground in this case that the Appellant's disclosure was prompted. Paragraph 10 (2) provides that where a person who would otherwise be liable to a 30% penalty has made a prompted disclosure, HMRC shall reduce the 30% to a percentage, not below 15%, which reflects the quality of the disclosure. In this case, as noted above, the penalty was reduced to 15% to reflect the high quality of the disclosure.[28]It is accepted by the Appellant that, if his inaccuracy in his return was careless, he will be liable to a 15% penalty, subject to the issue of suspension.[29]The penalty was charged under paragraph 13.[30]Paragraph 14 enables HMRC to suspend all part of the penalty for a careless inaccuracy. The power to suspend a penalty was a new concept introduced by the Finance Act 2007. Paragraph 14 provides as follows: " Suspension 14(1) HMRC may suspend all or part of a penalty for a careless inaccuracy under paragraph 1 by notice in writing to P. (2) A notice must specify—(a) what part of the penalty is to be suspended,(b) a period of suspension not exceeding two years, and(c) conditions of suspension to be complied with by P. (3) HMRC may suspend all or part of a penalty only if compliance with a condition of suspension would help P to avoid becoming liable to further penalties under paragraph 1 for careless inaccuracy. (4) A condition of suspension may specify— (a) action to be taken, and (b) a period within which it must be taken. (5) On the expiry of the period of suspension— (a) if P satisfies HMRC that the conditions of suspension have been complied with, the suspended penalty or part is cancelled, and (b) otherwise, the suspended penalty or part becomes payable. (6) If, during the period of suspension of all or part of a penalty under paragraph 1, P becomes liable for another penalty under that paragraph, the suspended penalty or part becomes payable.”[31]The relevant extracts from the HMRC Compliance Handbook ("Manual") are set out below. CH 83130 provided as follows:
"In certain circumstances it will not be possible to set suspension conditions to avoid future penalties. This may be because of the nature of the tax that the penalties related to, or because of the capacity in which the person has incurred the penalties. For example 1. Penalties for a careless inaccuracy in an IHT account for a deceased person will not be suitable for suspension in most cases because of the one-off nature of the tax. 2. Jesse incurred a penalty for careless inaccuracy in his return of business profits. However, he retired from business during the course of the compliance check. Suspending the penalty will not help Jesse avoid a similar penalty in the future and so the penalty will be chargeable in full."
[32]Manual extract CH 83150 stated as follows:
"Penalties will not be suspended where… the circumstances mean that the inaccuracy is a one off. For instance an inaccuracy in an Inheritance Tax account for a deceased person, see CH 83130. However, certain types of settlement may have a continuing requirement to make returns. This means that it may be possible to set suspension conditions."
[33]Manual extract CH 83160 provided:
"Penalties for inaccuracies that are not likely to recur, whether because of the nature of the tax or the nature of the understatement, are generally not suitable for suspension because it is not usually possible to set conditions that will avoid careless inaccuracies · in the future, or · during a period of suspension For example A tennis club sells its land to the Local Authority for a road widening scheme. The authority provides land elsewhere to rent to enable the club to continue its activities. The capital gain was omitted from the return and it is accepted that a penalty is due for a careless inaccuracy. As the club is unlikely to have any capital gains in the future there is no condition that could be set to avoid a similar inaccuracy arising in the future. The nature of the tax in question may mean that suspension conditions cannot be set. For instance Inheritance Tax penalties are not suitable for suspension because of the one-off nature of the tax, see CH 83150. The conditions you set must help the future compliance of the person acting in the same capacity. For instance, if the Administrator of an estate only ever needed to make a single return there would be no condition that you could set to avoid a future inaccuracy. However, if the estate needed to make annual returns the Administrator would have an ongoing role in the same capacity. You would then be able to consider whether suspension conditions could be set."
[34]Paragraph 15 of Schedule 24 sets out the rights of appeal in respect of penalties and a refusal of a suspension: Appeal 15(1) P may appeal against a decision of HMRC that a penalty is payable by P. (2) P may appeal against a decision of HMRC as to the amount of a penalty payable by P. (3) P may appeal against a decision of HMRC not to suspend a penalty payable by P. (4) P may appeal against a decision of HMRC setting conditions of suspension of a penalty payable by P. 16 An appeal may be brought to—(a) the General Commissioners, in so far as the penalty relates to direct tax, or(b) a VAT and duties tribunal, in so far as the penalty relates to VAT. 17(1) On an appeal under paragraph 15(1) the appellate tribunal may affirm or cancel HMRC's decision. (2) On an appeal under paragraph 15(2) the appellate tribunal may— (a) affirm HMRC's decision, or (b) substitute for HMRC's decision another decision that HMRC had power to make. (3) If the appellate tribunal substitutes its decision for HMRC's, the appellate tribunal may rely on paragraph 11— (a) to the same extent as HMRC (which may mean applying the same percentage reduction as HMRC to a different starting point), or (b) to a different extent, but only if the appellate tribunal thinks that HMRC's decision in respect of the application of paragraph 11 was flawed. (4) On an appeal under paragraph 15(3)— (a) the appellate tribunal may order HMRC to suspend the penalty only if it thinks that HMRC's decision not to suspend was flawed, and (b) if the appellate tribunal orders HMRC to suspend the penalty— (i) P may appeal to the appellate tribunal against a provision of the notice of suspension, and (ii) the appellate tribunal may order HMRC to amend the notice. (5) On an appeal under paragraph 15(4) the appellate tribunal— (a) may affirm the conditions of suspension, or (b) may vary the conditions of suspension, but only if the appellate tribunal thinks that HMRC's decision in respect of the conditions was flawed. (6) In sub-paragraphs (3)(b), (4)(a) and (5)(b) “flawed” means flawed when considered in the light of the principles applicable in proceedings for judicial review. (7) Paragraph 14 (see in particular paragraph 14(3)) is subject to the possibility of an order under this paragraph. Submissions of the parties[35]Mr Lever submitted that his client had a good compliance record. He had, however, made an error in his 2008 -- 2009 return. The treatment of the stock payment and the clawback of the advance made by his employer resulted in the Appellant making a mistake which was easy to make. It was understandable that the Appellant had believed that the amount deducted by the Appellant's employer was a deduction of PAYE.[36]In the circumstances, Mr Lever argued that the Appellant had not been careless but had made a simple understandable error. Moreover, the error was made at a time when the Appellant was experiencing considerable stress in relation to his litigation with his former employer concerning the circumstances of the termination of his employment.[37]Mr Lever referred to the decision in Blyth v Birmingham Waterworks Co 11 Exch 781, 156 Eng Rep 1047 (1856) in which Baron Alderson said:
"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might be liable to negligence, if, unintentionally, they omitted to do that which a prudent and reasonable person would have done, or did that which a person taking reasonable care would not have done."
[38]In that case the Birmingham Waterworks had installed water mains and five plugs on the street where Mr Blyth lived. After 25 years without problems, an unusually cold frost caused one of the plugs opposite Mr Blyth's house to freeze over. The damaged plug leaked a large quantity of water into Mr Blyth's home. Mr Blyth sued the Birmingham Waterworks for damages, alleging negligence. The Birmingham Waterworks appealed against the jury's award of damages, arguing that the severity of the frost of 1855 was unforeseeable. The court upheld the appeal, stating that a person was not negligent if his conduct and precautions conformed to the standard obeyed by a prudent or reasonable person. A reasonable person would consider the usual temperature range in recent years and act accordingly.[39]Mr Lever submitted that the unusual payslip received by the Appellant was the equivalent in this appeal of the severe frost in the Blyth case. He also referred to the decision of the High Court in Brodt v General Commissioners for Wells [1987] STC 207 where a penalty had been reduced.[40]He drew attention to the statement in HMRC's Compliance Handbook CH 81140:
"People do make mistakes. We do not expect perfection."
[41]As regards suspension of the penalty pursuant to paragraph 14 Schedule 24, Mr Lever argued that HMRC should have suspended the penalty subject to suitable conditions. Mr Lever noted that Mr Woodroff had considered the mistake related to the stock payment, whereas the officer who reviewed Mr Woodroff's decision (Mr Smith) indicated in his letter of 22 October 2010 that the error arose from a failure properly to consider the payslip/remittance note which involved the reimbursement of the employer's advance and the inclusion of national insurance contributions. By submitting self-assessment returns in future (which would include the receipt of rental income) the Appellant would be able to demonstrate his ability to discern the correct treatment of various items of income. Mr Lever argued that HMRC could suspend the penalty on condition, for example, that the Appellant correctly returned rental income in the self-assessment return. This was a measurable and achievable condition and could be monitored over two years.[42]Ms Weare submitted that 15% was the minimum penalty for a prompted careless inaccuracy in a self-assessment income tax return and that this penalty had been correctly imposed.[43]Ms Weare argued that the Appellant had the correct information in the payslip provided by his employer but misinterpreted this information and did not provide his accountants with information concerning the circumstances of the payment. She argued that it was reasonable to expect a person who was unsure would take care to find out the correct position or would draw HMRC's attention to the relevant entries. The transactions were unusual and therefore care was needed to ensure that all transactions were fully understood and that the correct documentation was obtained and provided to the Appellant's advisers.[44]The Appellant had not given evidence, but it was reasonable to suppose from the position that he held that he was an intelligent man.[45]As regards suspension, Ms Weare submitted that the suspension of the penalty was not permitted in this case in accordance with paragraph 14. The Appellant's employment had ceased. The legislation required that compliance with the condition of suspension would avoid further similar penalties. Ms Weare submitted that HMRC could not set conditions where the Appellant would not be acting in the same capacity.[46]Finally, Ms Weare submitted that the onus of proof was on the Respondents to show that the penalty was competent and that the standard of proof was the ordinary civil standard of the balance of probabilities. Discussion[47]There are two separate issues in this appeal. First, was the Appellant careless, within the meaning of paragraph 1 Schedule 24, when he made an error on his 2008 -- 2009 tax return? If the Appellant was careless it was common ground that 15% was the minimum penalty that could be imposed for a prompted disclosure. Secondly, was the decision of HMRC not to suspend the penalty, pursuant to paragraph 14 Schedule 24, flawed?[48]On the first question, paragraph 17 (1) Schedule 24 allows the Tribunal on appeal to affirm or cancel HMRC's decision to charge a penalty. On the second question, the Tribunal may order HMRC to suspend the penalty only if it thinks that HMRC's decision not to suspend was flawed (paragraph 17 (4) (a)). Paragraph 17 (6) states that "flawed" means flawed when considered in the light of the principles applicable to proceedings for judicial review. In addition, if the Tribunal orders HMRC to suspend the penalty the taxpayer may appeal to the Tribunal against a provision of the notice of suspension and the Tribunal may order HMRC to amend the notice (paragraph 17 (4) (b) (i) and (ii)). Careless Inaccuracy[49]On the first question, whether the Appellant was careless we consider this to be a borderline case. The definition of "careless" given by paragraph 3 (1) (a) is a failure by the taxpayer "to take reasonable care". It is an objective test. It is a familiar test used in the context of civil law, particularly tort. It does not require over-elaboration. Elderly cases such as Blyth simply provide illustrations of the principle.[50]In this case we consider that the Appellant failed to exercise reasonable care when he completed his 2008 -- 2009 tax return. In particular, when he misunderstood his payslip and mis-stated the amount of tax deducted he failed to exercise the standard of care expected of a reasonable person. The transactions were unusual, particularly the refund of the advance by his employer, and this should have alerted the Appellant to the need to pay special attention and if necessary seek advice from his adviser or from HMRC. He failed to do this. The error was entirely innocent. It was, however, careless.[51]For these reasons, we have concluded that the 15% penalty was correctly charged. Suspension of Penalty[52]As regards the issue of suspension of the penalty, our jurisdiction is confined to that of judicial review. We cannot substitute our opinion for that of HMRC simply because, if we had been in their shoes, we might have come to a different conclusion. We can only overturn HMRC's decision on suspension if we consider it to be "flawed" in the judicial review sense of that expression: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB and Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 .[53]The first point to make is that HMRC clearly have a discretion in paragraph 14 to suspend all or part of a penalty for careless inaccuracy. In paragraph 14 (1) it is provided that "HMRC may suspend all or part of a penalty" (emphasis added).[54]Secondly, it is necessary to enquire whether HMRC in exercising their discretion have correctly directed themselves on the law.[55]Paragraph 14 (3) provides:
"HMRC may suspend all or part of a penalty only if compliance with a condition of suspension would help [the taxpayer] to avoid becoming liable to further penalties under paragraph 1 for careless inaccuracy."
[56]Paragraph 14 (4) further provides:
"A condition of suspension may specify (a) action to be taken, and (b) a period within which it must be taken."
[57]No authority was cited to us on the meaning of the words in paragraph 14 and we have been unable to find any case-law on this provision. We therefore approach its words afresh, giving them their ordinary and natural meaning, construed purposively and in context.[58]The important feature of paragraph 14 (3) is the link between the condition and the statutory objective: there must be a condition which would help the taxpayer to avoid becoming liable for further careless inaccuracy penalties. In other words, if the circumstances of the case are such that a condition would be unlikely to have the desired effect (e.g. because the taxpayer in question has previously breached other conditions or has a record of repeated non-compliance) HMRC cannot suspend a penalty. The question therefore is whether a condition of suspension would have the required effect.[59]Mr Woodroff explained how he applied HMRC's guidance as mentioned at paragraph 18 above. In particular he considered that a condition of suspension could not properly apply to a “one-off event.”[60]On the face of the wording of paragraph 14 (3) there is no restriction in respect of a "one-off event". Nonetheless, it is clear from the statutory context that a condition of suspension must be more than an obligation to avoid making further returns containing careless inaccuracies over the period of suspension (two years). Paragraph 14 (6) provides:
"If, during the period of suspension of all part of a penalty under paragraph 1, [the taxpayer] becomes liable for another penalty and that paragraph, the suspended penalty or part becomes payable."
[61]If the condition of suspension was simply that, for example, the taxpayer must file tax returns for a period of two years free from material careless inaccuracies, paragraph 14 (6) would be redundant.[62]Moreover, it is difficult to see how a taxpayer could satisfy HMRC that the condition of suspension, if it contained no requirement other than a condition not to submit careless inaccuracies in future tax returns, had been satisfied as required by paragraph 14 (6). This would, effectively, require the taxpayer to prove a negative will require HMRC to conduct a detailed review of the taxpayer's tax returns.[63]For these reasons we do not agree with Mr Lever's suggestion that a suitable condition of suspension would be a requirement that the Appellant correctly returned other income (e.g. rental income) on his tax return for the next two years.[64]A condition of suspension, therefore, must contain something more than just a basic requirement that tax returns should be free from careless inaccuracies. This suggests, therefore, that the condition of suspension must contain a more practical and measurable condition (e.g. improvement to systems) which would help the taxpayer to achieve the statutory objective i.e. the tax returns should be free from errors caused by a failure to exercise reasonable care.[65]Bearing these considerations in mind, HMRC's guidance indicating that a one-off error would not normally be suitable for a suspended penalty is understandable and, in our view, justified.[66]We are fortified in this view by reference to the Explanatory Notes published together with the Finance Bill 2007 in respect of the provisions which were eventually enacted as Schedule 24 Finance Act 2007. The relevant extract from the Explanatory Notes reads as follows:
" Suspended penalties will not be appropriate for one off inaccuracies in returns such as a capital gain or a one off transaction. They are more likely to be appropriate for accounting system or record keeping weaknesses, where the money that may have been spent on the penalty could be used to remedy the defective processes ensuring future returns are accurate."
[67]For these reasons, we consider that Mr Woodroff did not mis-direct himself when deciding that he could not suspend the penalty in this case.[68]In addition, applying the Wednesbury test, we do not consider that HMRC took account of irrelevant (or failed to take account of all relevant) factors in taking its decision not to suspend the penalty. In our view, HMRC's exercise of its discretion could not be said to be unreasonable or irrational. Indeed, in our view, HMRC were correct in thinking that a condition of suspension could not properly be imposed in this case.[69]Accordingly, we dismiss the appeal against HMRC's decision not to suspend the penalty charged on the Appellant. Decision[70]Our decision is that the penalty imposed on the Appellant in respect of the year 2008 -- 2009 was correctly imposed by HMRC and the Appellant's appeal on this point is dismissed. In respect of the Appellant's appeal against HMRC's decision not to suspend the penalty, the appeal is also dismissed.[71]This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. GUY BRANNAN TRIBUNAL JUDGE RELEASE DATE: 25 MARCH 2011

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