DP Langan Limited v The Commissioners for HMRC [2025] UKFTT 958 (TC)

[2025] UKFTT 00958 (TC)Case No TC09606
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on: 7 May 2025Date Judgment date: 7 August 2025
By remote video hearing
Appeal reference: TC/2024/01250
INCOME TAX – Coronavirus job retention scheme
Before
TRIBUNAL JUDGE MCGREGORHANNAH DEIGHTON
Between
DP LANGAN LIMITEDAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentMr John Tann of Tann & Co Accountants for AppellantMr Lindsay, counsel for HM Revenue and Customs’ Solicitor’s Office for RespondentsDECISION

Introduction

[1]With the consent of the parties, the form of the hearing was V (video) via Teams. A face to face hearing was not held because a remote hearing was appropriate.[2]The documents to which we were referred are a bundle of 440 pages. Skeleton arguments from both parties were also provided.[3]Prior notice of the hearing had been published on the gov.uk website, with information about how representatives of the media or members of the public could apply to join the hearing remotely in order to observe the proceedings. As such, the hearing was held in public.[4]This was an appeal against three income tax assessments raised in relation to claims under the coronavirus job retention scheme (CJRS).

law

[5]Sections 71 and 76 of the Coronavirus Act 2020 provide the Treasury with the power to direct HMRC’s functions in relation to coronavirus.[6]Under these powers, the Treasury introduced The Coronavirus Act 2020 Functions of Her Majesty’s Revenue and Customs (Coronavirus Job Retention Scheme) Direction, on 15 April 2020, (the “CJRS Direction”) to govern HMRC’s administration of the CJRS. This first CJRS Direction was followed up with a number of further directions as the pandemic progressed and changes were made. However, from a substantive perspective, the relevant parts of the CJRS Direction did not change during the course of the fact pattern in this dispute and therefore we focus on the first CJRS Direction.[7]Under paragraph 3 of the CJRS Direction, an employer could make a claim for support payments under CJRS if they had a PAYE scheme registered on HMRC’s Real Time Information (RTI) system for PAYE by 19 March 2020. This is described as a qualifying employer.[8]Paragraph 5 of the CJRS Direction deals with the qualifying costs that can be claimed: The costs of employment in respect of which an employer may make a claim for payment under CJRS are costs which-(a) relate to an employee- (i) to whom the employer made a payment of earnings in the tax year 2019-20 which is shown in a return under Schedule A1 to the PAYE Regulations that is made on or before a day that is a relevant CJRS day, (ii) in relation to whom the employer has not reported a date of cessation of employment on or before that date, and (iii) who is a furloughed employee (see paragraph 6), and(b) meet the relevant conditions in paragraphs 7.1 to 7.15 in relation to the furloughed employee.[9]Paragraph 6 of the CJRS Direction defines who are furloughed employees.[10]Paragraph 7 of the CJRS Direction is entitled “Qualifying costs - further conditions”. The core relevant parts in this appeal are: (1) paragraph 7.1, which reads as follows:
“7.1 Costs of employment meet the conditions in this paragraph if- (a) they relate to the payment of earnings to an employee during a period in which the employee is furloughed, and (b) the employee is being paid- (i) £2500 or more per month (or, if the employee is paid daily or on some other periodic basis, the appropriate pro-rata), or (ii) where the employee is being paid less than the amounts set out in paragraph 7.1(b)(i), the employee is being paid an amount equal to at least 80% of the employee’s reference salary.” (2) Paragraph 7.2 which deals with the reference salary, but only of those who are not fixed rate employees: 7.2 Except in relation to a fixed rate employee, the reference salary of an employee or a person treated as an employee for the purposes of CJRS by virtue of paragraph 13.3(a) (member of a limited liability partnership) is the greater of- (a) the average monthly (or daily or other appropriate pro-rata) amount paid to the employee for the period comprising the tax year 2019-20 (or, if less, the period of employment) before the period of furlough began, and (b) the actual amount paid to the employee in the corresponding calendar period in the previous year. (3) A fixed rate employee is defined in paragraph 7.6 of the CJRS Direction. (4) Paragraph 7.7 of the CJRS Direction provides that “the reference salary of a fixed rate employee is the amount payable to the employee in the latest salary period ending on or before 19 March 2020”. (5) Paragraph 7.11 provides as follows: “Where paragraph 7.12 applies, the sum of the original payment described in paragraph 7.12(a) and the further amount described in paragraph 7.12(c) must be treated as having been paid at the time of the payment of the original payment for the purposes of paragraph 7.1(b)(ii).” (6) Paragraph 7.12 provides: “This paragraph applies where- (a) in the period beginning on 1 March 2020 and ending on the third day after the making this direction an amount by way of wages or salary is paid in respect of a period of employment (“the original payment”) to an employee, (b) the original payment is less than the amount required by paragraph 7.1(b)(ii) for the purpose of claiming CJRS, (c) before making a CJRS claim in respect of the original payment the employer pays the employee a further amount (“the further amount”) in respect of the period of employment to which the original payment relates, and (d) the sum of the original payment and the further amount meets the requirements of paragraph 7.1(b)(ii).”
[11]Paragraph 8.1 sets out the expenditure of employers that will be reimbursed by the government under the CJRS.[12]Where a CJRS claim is made incorrectly, the recipient of the CJRS payments is liable to income tax on the excess under paragraph 8 of Schedule 16 to Finance Act 2020.[13]Paragraph 9 of the same Schedule gives HMRC the power to make assessments to income tax for amounts chargeable under paragraph 8.

facts

[14]The following facts were not in dispute.[15]DP Langan Limited (DPL) is a company providing electrical services through its director, Dermot Langan.[16]DPL also employed an administrator, whom we will refer to as Ms G.[17]In the periods prior to March 2020, Mr Langan had been paid £100 per week, and Ms G had been paid £191.23 per week.[18]On 11 April 2020, DPL increased their salaries, such that Mr Langan was now earning £576.93 per week, and Ms G was now earning £239.04 per week.[19]DPL made 15 claims under CJRS through its agent, John Tann & Co Accountants, for the period covering March 2020 to June 2021. These claims were made based on the higher salaries.[20]The first claim was submitted on 20 April 2020 and covered the period from 1 March 2020 to 18 April 2020. The remaining claims were made once a month and covered, approximately, a month each.[21]On 20 September 2022, HMRC opened a compliance check into DPL’s CJRS claims and enclosed a list of questions.[22]After a series of further information requests and correspondence, HMRC raised income tax assessments on 28 August 2023. The amounts assessed were:(1) £20,830.57 in respect of the tax year ending 5 April 2021; and(2) £1,705.85 in respect of the tax year ending 5 April 2022 in relation to accounting period ending 30 April 2021; and(3) £3,658.19 in respect of the tax year ending 5 April 2022 in relation to accounting period ending 30 April 2022.(4) Leading to a total of £26,194.61.[23]On 15 September 2023, DPL appealed to HMRC and requested an internal review.[24]On 27 September 2023, HMRC issued their view of the matter letter.[25]On 5 January 2024, HMRC issued their review conclusion letter, which revised the first assessment, for the year ending 5 April 2021, upwards to £21,054.22. This was due to an incorrect percentage having been used for one of the months in the original assessment. The total due after such amendment was £26,418.26.[26]On 2 February 2024, DPL made an appeal to this Tribunal. parties arguments Appellant’s arguments

parties arguments

[27]Mr Tann submitted that the claims made under CJRS were correct and that therefore no overclaims were made and no income tax assessments can be raised.[28]This was on the basis of a speech made by the Chancellor of the Exchequer on 20 March 2020 when CJRS was announced. This speech included the following statements:
“Government grants will cover 80% of the salary of retained workers up to a total of £2,500 a month – that’s above the median income. And, of course, employers can top up salaries further if they choose to. That means workers in any part of the UK can retain their job, even if their employer cannot afford to pay them, and be paid at least 80% of their salary.”
[29]Mr Tann submits that this speech showed that the Chancellor intended that employers could “top up” their employees’ salaries in order to be able to make higher claims under the CJRS for grants.[30]He further submitted that this was then made possible through the mechanism in paragraph 7.12 of the first CJRS direction:(1) The “original payment” is whatever you pay the staff between 1 March and 19 March;(2) The lower amount was paid to them between 7 March and 4 April and this amount was less than “the amount required by paragraph 7.1(b)(ii)”;(3) The higher amount was paid from 11 April, as is apparent from the PAYE submissions made to HMRC and this was the topped-up amount.[31]Mr Tann referred to the decision in Bandstream Media and Corporate Communications Limited v HMRC [2024] UKFTT 00011, where the judge referred to paragraph 7.12 needing to be used for correcting a claim and that it cannot be used for “topping up”. He submits that this conclusion was wrong.[32]Mr Tann submits that both HMRC and he agree that paragraph 7.12 can be used for “topping up”.

HMRC arguments

[33]HMRC submits that DPL received excessive amounts under the CJRS in relation to two employees, Mr Langan and Ms G.[34]The amounts claimed were excessive because they were not claimed in accordance with paragraphs 3, 5, 7 and 8 of the CJRS Direction.[35]HMRC accepts that:(1) DPL was a qualifying employer; and(2) The two employees were furloughed employees.[36]HMRC consider that the claims were made for amounts in excess of the qualifying costs under paragraphs 5 and 7 of the CJRS Direction.[37]HMRC submit that Mr Langan and Ms G were “fixed rate employees” because they were in receipt of fixed rate weekly salaries prior to 19 March 2020.[38]Under Paragraph 7.7 of the CJRS Direction, the reference salary to be used is the amount that was payable to the employee in the last salary period prior to 19 March 2020 and that these were the lower amounts of £100 for Mr Langan and £191.23 for Ms G.[39]HMRC submit that the increases to the higher amounts were not submitted to HMRC until 11 April 2020, which is after the employees’ relevant reference day of 19 March 2020.[40]HMRC submit that for these employees the relevant reference salary is calculated under paragraph 7.1(b)(ii), because both employees were receiving less than £2500 a month. HMRC submit that both employees were receiving an amount “equal to at least 80% of the employee’s reference salary” because they were receiving all of their reference salary, being the lower amount they were being paid as at 19 March 2020.[41]HMRC submit that for paragraph 7.12 to be relevant, the employee would have to first have been paid less than 80% of the amount which he was required to have been paid under paragraph 7.1(b)(ii). However, this condition was not met, because they were being paid all of their reference salary.[42]HMRC submits their view that Paragraph 7.12 allows a claim to be made if initially an employer could not afford to or did not pay the employee the minimum amount required (80% of the reference pay) in the latest salary period prior to 19 March 2020 but rectifies this by making a further payment within the specified time limit. Therefore, this paragraph ensured that a fair reference pay of what was payable/paid ‘normally’ to the employee would be maintained.[43]HMRC argues that Bandstream Media supports their case, in particular paragraphs 23 to 26.[44]Applying the same reasoning, HMRC contend that Paragraph 7.12 cannot be used to increase the reference salary after 19 March 2020 for the purpose of CJRS.[45]HMRC consider that they have raised a valid assessment within the relevant time limits, namely within 4 years of the first claim that was made on 19 April 2020.[46]HMRC contend that the assessment for the tax year ended 5 April 2021 should be increased because CJRS grants were reduced to 60% of the reference salary for CJRS claims in October 2020, however the decision making officer used 70% in the calculations. In addition, the reviewing officer found that the first three claims from 19 April to 31 July included the cost of employer NICs and as the Appellant claimed employment allowance, they could not claim for these amounts under the CJRS in accordance with Paragraph 8.4 of the first CJRS Direction: 8.4 The total amount to be paid to reimburse any employer national insurance contributions must not exceed the total amount of employer’s contributions actually paid by the employer for the period of the claim.

discussion

[47]This appeal concerns a narrow point of interpretation of paragraph 7.12 of the CJRS direction.[48]We record the following matters that were not in dispute between the parties, but are necessary pre-cursors to reaching a conclusion on whether there has been an overclaim of CJRS:(1) DPL had a PAYE scheme registered on RTI for PAYE by 19 March 2020 and therefore was a qualifying employer for the purposes of the CJRS claims; and(2) Mr Langan and Ms G were both furloughed employees for the relevant period.[49]We find as a matter of fact that Mr Langan and Ms G were both “fixed rate employees” within the CJRS Direction. We did not understand that Mr Tann was challenging this factual position.[50]This means that their reference salaries must be calculated in accordance with paragraph 7.7 of the CJRS Direction, which provides that this salary is the “amount payable to the employee in the latest salary period ending on or before 19 March 2020”.[51]As set out in the background facts above, both Mr Langan and Ms G were paid on a weekly basis. The RTI submissions for DPL were provided to us. They showed a submission dated 13 March 2020 which showed a payment of £100 for Mr Langan and £191.23 for Ms G that was to be paid on 14 March 2020.[52]On this basis, the reference salary of Mr Langan under paragraph 7.7 of the CJRS Direction was £100 a week and for Ms G it was £191.23 a week.[53]However, this reference salary can be adjusted by virtue of the later parts of paragraph 7 of the CJRS Direction. In this case the relevant adjustment, according to the Appellant, is paragraph 7.12. However, in order to understand 7.12, it is also necessary to consider the starting point in paragraph 7.1.[54]We will first consider our reading of the wording in the CJRS Direction and then consider whether wider commentary and/or other case law sheds any light on this interpretation.[55]Paragraph 7.1 is dealing with what amounts an employer can claim. In particular, 7.1(b) requires that the employee is being paid- “(i) £2500 or more per month (or, if the employee is paid daily or on some other periodic basis, the appropriate pro-rata), or (ii) where the employee is being paid less than the amounts set out in paragraph 7.1(b)(i), the employee is being paid an amount equal to at least 80% of the employee’s reference salary.”[56]The first thing we note is that these are mutually exclusive conditions. If the employee is being paid £2500 or more per month, then there is no need to consider the second limb. Only if the employee is earning less than £2500 per month is it relevant whether they are being paid an amount equal to at least 80% of their reference salary.[57]Turning to 7.11:
“Where paragraph 7.12 applies, the sum of the original payment described in paragraph 7.12(a) and the further amount described in paragraph 7.12(c) must be treated as having been paid at the time of the payment of the original payment for the purposes of paragraph 7.1(b)(ii).”
[58]This is a deeming provision whose only purpose is to deem the timing of the payment of the “further amount” in 7.12(c) to have been paid at the same time as the original payment. We also note that it only deems such a payment to have been paid “for the purposes of paragraph 7.1(b)(ii)”. Therefore the deeming provision is only relevant for those employees who are paid less than £2500 per month.[59]The main provision under consideration is 7.12, which provides:
“This paragraph applies where- (a) in the period beginning on 1 March 2020 and ending on the third day after the making of this direction an amount by way of wages or salary is paid in respect of a period of employment (“the original payment”) to an employee, (b) the original payment is less than the amount required by paragraph 7.1(b)(ii) for the purpose of claiming CJRS, (c) before making a CJRS claim in respect of the original payment the employer pays the employee a further amount (“the further amount”) in respect of the period of employment to which the original payment relates, and (d) the sum of the original payment and the further amount meets the requirements of paragraph 7.1(b)(ii).”
[60]Applying 7.12(a) to our current facts:(1) the period in question is 1 March 2020 until 18 April 2020. This is because the first CJRS Direction was issued on 15 April 2020; and(2) in this period, Mr Langan and Ms G were both paid amounts by way of salary in respect of a period of employment. We find as a matter of fact the following payments to each of them, based on the RTI submissions that were included in the bundle. (a) Mr Langan was paid: (i) £100 on each of 7 March, 14 March, 21 March, 28 March and 4 April, and (ii) £576.93 on 11 April and 18 April 2020; and (b) Ms G was paid: (i) £191.23 on each of 7 March, 14 March, 21 March, 28 March and 4 April, and (ii) £239.04 on 11 April and 18 April 2020;[61]We find that each of these payments were separate “original payments” for the purposes of 7.12(a). This is on the basis that 7.12(a) refers to payments being made in respect of “a period of employment” and both Mr Langan and Ms G were paid weekly in respect of each week’s period of employment.[62]Paragraph 7.12(b) requires that each “original payment” was less than the amount required by paragraph 7.1(b)(ii). The wording of this paragraph is that the person is being paid “an amount equal to at least 80% of the employee’s reference salary”. Therefore, for 7.12(b) to be met, the employee would have to be being paid less than 80% of their “reference salary”. As that reference salary has been determined above as being £100 per week for Mr Langan and £191.23 for Ms G, this condition is not met. Both were being paid 100% of their weekly reference salary until 4 April and in excess of their weekly reference salary thereafter.[63]Paragraph 7.12(c) requires that a further payment is made to the employee in respect of the same period as the original payment. As determined above, the further payments were not made in respect of the original payments made between 1 March 2020 and 18 April 2020. The payments made on 11 and 18 April 2020 were made not as “further payments” in respect of the same periods of employment, but as new “original payments” in respect of two new periods of employment, being the two later weeks in April. Therefore, the requirements of paragraph 7.12(c) are not met.[64]Paragraph 7.12(d) requires that the sum of the original payment and the further amount meets the 7.1.(b)(ii) requirements, i.e. the employee is being paid at least 80% of the reference salary. Since we have established that the original payments already met this requirement and that no further payments were made, it is not necessary to consider this condition.[65]Therefore, on the basis of interpreting the clear words of the law, the amount that DPL can claim is not adjusted by virtue of paragraph 7.12 and the appropriate claims would have been for the reference salary, as determined in accordance with paragraph 7.7.[66]Mr Tann invited us to consider that the speech of the Chancellor should be considered in interpreting the wording of the CJRS Direction, particularly because the direction was not issued until 15 April and employers were therefore making decisions on the basis of what was announced before the detail was released in the CJRS Direction.[67]The extent to which external materials such as ministerial announcements can be taken into account in construing legislation was considered by the Supreme Court in R (on the application of O) v Secretary of State for the Home Department [2022] UKSC 3 where Lord Hodge, in the majority decision, said in relation to ministerial statements: 32. In their written case the appellants sought to support their contention … by referring to statements by a Government minister, Timothy Raison, to the Standing Committee … Such references are not a legitimate aid to statutory interpretation unless the three conditions set out by Lord Browne-Wilkinson in Pepper v Hart [1993] AC 593, 640 are met. The three conditions are(i) that the legislative provision must be ambiguous, obscure or, on a conventional interpretation, lead to absurdity;(ii) that the material must be or include one or more statements by a minister or other promoter of the Bill; and(iii) the statement must be clear and unequivocal on the point of interpretation which the court is considering.[68]Having set out above our interpretation of the relevant provisions of the CJRS Direction, we do not consider that they are ambiguous or obscure or that they lead to an absurdity. Mr Tann suggested that the provisions must allow for a person to receive a pay rise. There is nothing in the CJRS Direction that prevents the employer from giving a pay rise, but, due to the definition of a reference salary, the pay rise would not lead to an increase in the amount that the employer can reclaim from the government under the CJRS. We do not consider that this is an absurd conclusion, particularly in the context of a system of grants that was established in a very short time frame in order to provide support to employers for the cost of staff that could not work due to the pandemic. It is undoubtedly the case that this system did not cater for each and every situation, but that doesn’t necessarily render it absurd.[69]Mr Tann made a further argument that, if it is not possible to “top up” under paragraph 7.12, then how would an employer do it? We took that as a suggestion that the provisions interpreted as HMRC suggest would lead to an absurdity. We disagree. Mr Tann’s argument is predicated on his interpretation of the phrase “top up”, which, in his view, must enable an employer to decide to change a person’s salary and claim back the higher amount under the CJRS from the government. We note that the legislation does not use the phrase “top up”, but even if it did, it would need to be read in the context of the legislation, which provides for employers to be able to claim certain specified and restricted amounts from the government during the course of the pandemic. There is nothing in the legislation, either express or implied, that could be read as enabling an employer simply to increase a salary after the date set for determining the reference pay and expect that amount to be claimed from the government.[70]Even if we could consider it, we do not consider that the speech made by the Chancellor is clear and unequivocal to the point under consideration. It is helpful to put the statements that Mr Tann relies on in the speech made by the Chancellor on 20 March 2020 into context:
“Today I can announce that, for the first time in our history, the government is going to step in and help to pay people’s wages. We’re setting up a new Coronavirus Job Retention Scheme. Any employer in the country – small or large, charitable or non-profit - will be eligible for the scheme. Employers will be able to contact HMRC for a grant to cover most of the wages of people who are not working but are furloughed and kept on payroll, rather than being laid off. Government grants will cover 80% of the salary of retained workers up to a total of £2,500 a month – that’s above the median income. And, of course, employers can top up salaries further if they choose to. That means workers in any part of the UK can retain their job, even if their employer cannot afford to pay them, and be paid at least 80% of their salary. The Coronavirus Job Retention Scheme will cover the cost of wages backdated to March 1st and will be open initially for at least three months - and I will extend the scheme for longer if necessary.”
[71]Read in that context, the phrase “employers can top up salaries further if they choose to” clearly refers back to the fact that the scheme being introduced allows employers to “cover most of the wages”. This is further reflected in the fact that the following sentence refers to employers being unable to afford to pay their furloughed staff but being able to continue to pay them 80% due to the availability of the CJRS grants.[72]The Upper Tribunal’s decision refusing permission to appeal in Bandstream Media also supports this conclusion in paragraph 34:
“The reference to employers being able to top up salaries further if they chose to do so, was clearly a reference to making good the 20% of the reference salary which could not be claimed pursuant to paragraph 8 of the Direction.”
[73]In our view, this speech does not provide unequivocal support for the opportunity that Mr Tann thinks he found, i.e. to claim more from the government than was previously being paid to employees by changing the amount payable after the announcement of the CJRS.[74]Mr Tann also invited us to consider that Bandstream Media was wrongly decided in that it concluded that paragraph 7.12 could only be used for correcting a claim, not for topping up, albeit that he was not able to point us to the parts of the decision that he considered to be wrong. He also sought to distinguish this case on the facts, specifically that in Bandstream media the top up payments were made in the same tax year, but in DPL’s case, the top up payments were made in the next tax year.[75]HMRC suggest that Bandstream Media is persuasive authority that supports their position and invite us to follow it. HMRC highlight the following paragraphs:
“23. We were told by HMRC that the purpose of paragraph 7.12 was to cater for situations where an employee was due to be paid a certain amount but as a matter of fact, was paid less than 80% of that amount. So, an employee who was due to be paid £1,000 received only £750 for some reason. Paragraph 7.12 enables the employer to pay the additional £250 and thus calculate a support payment on the basis of the salary of £1,000 rather than being restricted to the £750 which was actually paid to the employee. 24. And paragraph 7.12 certainly caters for this situation. 25. We have based the foregoing interpretation on a literal interpretation of the legislation. And we have arrived at the same conclusion based on a purposive interpretation. This allows us to consider the purpose for which the legislation was introduced, but it must be emphasised, that the question is whether the construction of the statutory provision applies to the facts as found. Words are to be given ordinary meanings, and it is to be presumed that Parliament did not intend that to be either injustice or absurdity when introducing those statutory provisions. 26. It is our view that the purpose of the legislation is, as submitted by HMRC, to cater for the situation which has been suggested by them, at [23] above. It was not intended to allow an employer, after the introduction of the scheme, to inflate an employee’s wages and thus, effectively, have the taxpayer underwrite an employee’s salary. This would drive a coach and horses through the legislation which was designed to fix an employee’s salary to that recorded on the latest RTI submission prior to 19 March 2020. To interpret the legislation otherwise would lead to an injustice.”
[76]As noted above, Bandstream Media, also advised by Mr Tann, applied for permission to appeal against the First-tier tribunal’s decision. The Upper Tribunal refused permission to appeal in a decision published with citation [2024] UKUT 00306 (TCC). The decision rejected Mr Tann’s grounds of appeal relating to the interpretation of paragraphs 7.1 and 7.12. We note in particular the following paragraphs of that decision:
“[22] Bandstream further argues that the FTT’s approach means that Bandstream is not able to give Mr Smith a pay rise. That is not the case. It could give Mr Smith a pay rise, but it would not be able to claim reimbursement of the costs of employment above 80% of the reference salary paid to Mr Smith.” … “[30] I am also satisfied that paragraph 7.12 is not directed towards pay rises. It is clear that paragraph 7.12 applies to amounts paid to employees in the period of uncertainty between 1 March 2020 to 18 April 2020 arising out of the pandemic which for whatever reason were less than an employee’s reference salary. Claimants were then given an opportunity to “top up” the original payment at any time before making a claim so that it met the 80% threshold required by paragraph 7.1(b)(ii). The Direction contains no provision for the reference salary to be re-calculated in the event of an increase in salary.”
[77]We agree with the original reasoning of the First-tier Tribunal in Bandstream Media and that this reasoning was not disturbed by the Upper Tribunal in their decision on permission to appeal. We do not see any rationale for distinguishing DPL from Bandstream Media on the facts since there is nothing in paragraphs 7.1, 7.7 or 7.12 of the CJRS Direction that hangs on whether further payments were made in the same or a different tax year.[78]For the reasons set above, DPL was therefore only entitled to make claims under the CJRS Direction on the basis of the reference salary calculated in accordance with paragraph 7.7. Paragraph 7.12 does not apply to DPL because the conditions in 7.12(b) and (c) are not met.[79]HMRC argued that, in accordance with the review conclusion letter, supported by the witness evidence of the decision-making officer, the assessments should be increased by:(1) £94.68 that represented employer’s NICs that should not have been claimed in May, June and July 2020; and(2) £128.97 that was claimed in respect of October 2020 that was originally calculated based on a claim percentage of 70% but should have been 60% due to a change in the claim rate.[80]DPL did not make any submissions regarding the amount of the assessments, either in relation to the main calculations or the small adjustment upwards based on the varied percentage and the claims for employer’s NICs.[81]On the balance of probabilities, we find that the claims made were excessive in those respects and therefore increase the assessments in accordance with the review conclusion letter.

disposition

[82]For the reasons set out above, we dismiss the taxpayer’s appeal against the assessments, as amended on review.

Right to apply for permission to appeal

[83]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. Release date: 07th AUGUST 2025