Dishonest tax agents: Trouble ahead

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From 1 April dishonest tax agents are liable to civil sanctions. HMRC has yet to write their guidance but John Flood explains the provisions and their scope.

Civil penalties for persons who act dishonestly with a view to bringing about a tax loss while acting as a tax agent will be brought into effect for conduct occurring after 1 April (schedule 38 FA 2012 and 2013 S.I. No.279). Both direct and indirect taxes are covered. Penalties from a £5,000 minimum to £50,000 maximum can be applied.

Misconduct must be by an individual and dishonest, incompetence or gross negligence is not enough. Dishonesty will usually be evidenced by showing the creation or presentation of some kind of false or misleading picture. The help given must be with a view to bringing about a loss of tax revenue whether a loss actually occurs and should involve assistance in the tax affairs of a client.

Both advisory and representational acts are covered. Indirect assistance is also caught if the agent knows or believes that it will, or is likely to be used, in connection with a client’s tax affairs.

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01st Mar 2013 16:22

Why are these not caught by the common law offence of conspiracy to defraud the revenue?

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01st Mar 2013 16:50

Why are these not caught by ?

Thanks for your note. Dishonest Tax Agents still remain liable to the offence you mentioned ( and other offences of dishonesty). The new civil penalties are an alternative to prosecution. Express provisions prevent both criminal and civil liability for the same conduct.  

The conspiracy offence mentioned tends to be reserved for the most serious of conduct. It will be interesting to see what approach HMRC now takes for its cases.

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01st Mar 2013 16:58

Thanks for the info. So these would be penalties imposed by HMRC, but then subject to appeal? How could an appeal process work then? Would an appellant have to show that no reasonable person could have come to the decision that HMRC made?

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02nd Mar 2013 19:17

Sorry for the delay in replying. I thought I had!

To establish a case HMRC have to show that the conduct concerned falls within the statute. A key pre-condition to liability is that the person concerned must have behaved dishonestly. This is not satisfied if you are simply incompetent or even grossly negligent. As the sanctions which can be imposed are serious ECHR cases suggest that HMRC will have to prove misconduct to a criminal standard notwithstanding we are concerned with civil penalties. We must await the first cases to see if this is right.

Once a tribunal has found the allegations proved or the person concerned admits a matter a penalty can be imposed. This too can be the subject of an appeal. HMRC will have to shows that the facts justify the imposition of a penalty and the taxpayer will argue about the amount and mitigation.

I hope this helps.

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01st Mar 2013 17:23

Why?

Why do HMRC get to regulate this?  If someone is dishonest it should be dealt with by the courts.  I appreciate that this is an alternative to the courts, but it should not be operated by HMRC.  If we are to have an alternative, it should be entirely separate from HMRC.  This stinks to me....

 

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02nd Mar 2013 19:31

Reply to Why ?

You suggest that the matter should left to the courts. Although these matters will be investigated by HMRC they will be judged by the First Tier Tribunal and therefore for the most important part,, the question of liability, the taxpayer will have the benefit of an independent tribunal considering issues. The tribunal forms no part of HMRC and is very jealous of its independent status.

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By markfd
03rd Mar 2013 02:13

Do you really believe this?

hjaflood wrote:

...the taxpayer will have the benefit of an independent tribunal considering issues. The tribunal forms no part of HMRC and is very jealous of its independent status.

You only have to read a few decisions of the FTT to come to the view that at least certain of the commissioners are a bit like the magistrates of old ... if the police say it it must be true ... there are hardly any where an HMRC inspector has been criticised or disbelieved.

If my livelihood depended on the impartiality of the FTT I would be very afraid.

[As much more eloquently stated by Hope_Valley above.]

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By chatman
04th Mar 2013 13:22

Magistrates

markfd wrote:
like the magistrates of old ... if the police say it it must be true

of old?

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05th Mar 2013 11:24

Magistrates Courts are Police Courts.

As I have posted elsewhere I have been on the receiving end of Police harassment.

I was trying to protect baby Seagulls being slaughtered in the flats where I live.

Instead of enforcing the Wild Life and Countryside Act 1981 the Police took the side of

the man rersponsible for killing the baby seagulls and the case ended up in the

Police Court where the magistrates believed everything the Police said.

It will be the same when Agents are before the Police Courts.

Magistrates and Police are part of the same corrupt system. 

 

 

 

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01st Mar 2013 23:31

A charter for harassment
Isn't this a charter for HMRC to victimise agents?
If an agent is falsely accused what damages and compensation will be awarded and by who to recompense for distress, loss of earnings etcetera. And what guarantees are there that any agent winning damages won't then find themselves the victim of repeated accusations (throw enough mud and some of it will stick).
There are many recorded examples of individuals being repeatedly falsely targeted by vindictive police officers, I don't think for one moment that HMRC operates to any higher moral standard.
If an agent is accused, bearing in mind the huge potential cost to him, will he be entitled to legal representation, and will this be provided free by Legal Aid if he cannot afford it, or is this a sneaky way of denying agents proper representation and getting them before what will amount to a kangaroo court?

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02nd Mar 2013 19:54

A charter for harassment- Some observations

Firstly, let me declare an interest, I was formerly with HMRC before my retirement. 

I hope I can make some useful comments to set your mind, at least partially. to rest. 

If an agent is falsely accused by an officer acting out of spite then a civil action for misconduct in public office is available although this is a rare civil action. Damages would be recoverable for losses suffered. Making a false case can also amount.to a criminal offence of misconduct in a public office.  The offence covers any holder of a public office and indeed we have seen this offence being prosecuted more often in recent times,although  usually in matters involving police officers.

I am sure that both the police and HMRC do try to operate to a proper moral standard. In the case of repeated vindictive action a complaint through the proper channels should be made and should secure a proper result.

In terms of representation, as any disputed case goes to the FTT the agent may have representation of his choice. This can therefore be not only a lawyer but an accountant or one of the many representatives that provide assistance in tribunal cases. In terms of legal aid I am sorry but without further checking I do not know the present position.. 

I hope this helps.

 

 

 

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05th Mar 2013 11:12

Vindictive and corrupt police

Your reference to vindictive police strikes a chord with me as I have been on

the receiving end of it myself. The control over the police by the  IPCC, Parliament

and others is wholly deficient thereby allowing their corruption, cover ups and fit ups

to go undetected and unpunished.

HMR & C  are rapidly turning into yet another Police with all the systemic corruption and lack

of accountability that that entails.

Its disgraceful. 

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02nd Mar 2013 22:58

Consequences

You have a touching faith in the integrity of tax officers. Unfortunately experience shows me that it is misplaced. There are far too many ill educated petty minded and frankly nasty little bullies working for HMRC.

Similarly I have no faith in the impartiality of  the First Tier Tribunal which is too accustomed to taking the word of HMRC at face value.

I can easily see an accusation progressing from the tribunal through various courts and taking years to be finally resolved. Even if it is resolved in the agent’s favour the fact is that immense damage will already have been done. That agent could have lost his clients, lost his income, and lost his house while the wheels of “justice” slowly grind on.

Serious damage could have been caused to his mental and indeed physical health. Stress is now known to be a cause of many heart attacks.

Whilst his life falls apart around him the agent would be expected to put together a defence to false allegations?

Most people have no concept of what havoc is caused by being subjected to false accusations, be it by the police or by HMRC. I do have knowledge of what it can do as I saw someone close to me falsely accused, they lost their home and their family due to the stress, they had a mental breakdown due to it, they proved their innocence in a court, and 2 hours after leaving the court they blew their brains out due to the ordeal they had suffered for 4 years.

The note they left simply said that now they had lost everything, and proved their innocence, they had nothing left to live for.

I do not consider HMRC or the Tribunal to be competent to deal with people who may well be in that state of mind.

 

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03rd Mar 2013 11:00

Yes...one wonders what the dire consequences will be should the decision to prosecute is made by HMRC. I do hope they put their house in order beforehand especially to those over zealous inspectors - and proper measures are taken to eliminate any miscarriages of justice.

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04th Mar 2013 11:29

Hmm....

Where does this leave S99 TMA 1970?

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04th Mar 2013 12:04

shhsshh

AndyC555 wrote:

Where does this leave S99 TMA 1970?

 

They didn't know that one was there.....

along with forgotten determinations and a whole host of other powers they have never used to ensure compliance with the law.

This will be much the same (lots of law ,no policing)

Just make it slightly complicated and you will get away with it.(too much effort before home time)

HMRC have become a joke.

 

actually there is a prospective s.99 omission from the 2012 FA

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09th Mar 2013 12:30

Reply: What happens to S99 TMA ?

Andy 

Good question. The answer lies in paragraph 45 (c) of Schedule 38 FA 2012. This paragraph repeals S.99 from April 1.

John Flood  

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04th Mar 2013 12:01

Civil or Criminal? Nasty? Biased?

Firstly I think that the graphic with the original article is a tad inappropriate.  Handcuffs are not I think a normal part of a civil process.  I accept they might feature in someone's private life.

Secondly I think that the FTT is being wrongly tainted here with some of the weaknesses of the old General Commissioners (who had strengths as well, let it be said).

FTT members are likely to be people with an appropriate legal and professional background.  They probably know the rules of evidence and they probably understand concepts like the onus of proof.  An accusation of bias on the basis of reports of cases where you didn't attend and hear all the evidence is not really justified.  It's rather like making your mind up about a government solely on the basis of what the Daily Mail/Guardian (delete which ever one you like) says about them.

Finally I am shocked and appalled to learn that: 'There are far too many ill educated petty minded and frankly nasty little bullies working for HMRC.'  Surely just one ill-educated petty-minded and frankly nasty little bully is too many?  But I don't think you'll find a large organisation or company or professional association that doesn't have one somewhere.  That of course is a good reason for having independent appeal bodies.

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04th Mar 2013 12:05

Yes Hmmmmmm

I think this is the latest in a long line of ill thought out actions, which are piggy backing on the general feeling of revulsion which the general public feels towards tax evasion.

However it does nothing to address what can only be described as the complete incompetence of the average day to day work of the Revenue, which now appears to be staffed by mainly poorly trained staff with boxes to tick, who know nothing whatsoever about the taxation system, tax law, or even have the capacity to apply basic common sense.

It seems a real rarity nowadays to find an HMRC employee who actually knows what they are talking about, and possibly here specialist units excepted.

I too have little faith that the FTT will form any part of an independent judgment organisation, as someone has already stated you only have to read a few of their decisions to realise that's it's like a Victorian magistrates court.

Do I want dishonest tax practitioners take out of circulation?, Yes of course, but by the existing court systems which will at least give some faith to the rest of us that that even basic common law will apply to the methodology.

FTT as judge, jury and executioner?, be afraid be very afraid.

 

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04th Mar 2013 21:26

Yes Hmmmmmmmm

I totally agree. We have very little faith at all with the 1st Tier.

 

We defended a case and asked for a summons to have records brought forward by HMRC which could prove the Taxpayer's innocence. The summons was granted. HMRC subsequently stated that all records had been "lost" and that only the limited evidence supplied to make the case against the Taxpayer could be used. We calculated, and put forward to the Tribunal, that the odds of all records being lost by HMRC from all 10 locations listed were at least ten thousand million to one against. The 1st Tier Tribunal stated that the actions of HMRC were acceptable and we lost the case.

And they're supposed to be unbiased!

Our view is that only points of law will support an appeal at the 1st Tier. Whatever HMRC puts forward, no matter how absurd, is believed. And the same will apply to Agents. If HMRC say we are dishonest it will be a massive uphill battle to show otherwise.

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07th Mar 2013 10:05

Trouble is

Metrobrit wrote:

I think this is the latest in a long line of ill thought out actions, which are piggy backing on the general feeling of revulsion which the general public feels towards tax evasion.

 

the general public have this revulsion right up to the point you discuss, IR35, claiming for the Dog, T.V, lunch and holidays and work clothes...then it does not apply to them, only starbucks and greedy banks

Trouble is this will have the reverse effect of what we think might be the original intentions of this legislation were. (are they really that stupid)

I predict the results will be to bury the legitimate in mounds of A*se covering paperwork and courses making us less cost effective therefore driving once reluctant compliant taxpayers into the hands of the cheaper man in the pub, thus expanding the tax evasion problem. (It may well be that fair taxation is for everyone to pay no tax.)

How will they ever prove any of this behaviour?.....on the odd occasion that we pick up a repentant sinner from one of these rogue firms there is always a distinct lack of working papers.....where did the figures come from? Don't know I can't remember and I can't find my workings? In the absence of any evidence of wrong doing we will have to let you off as we will default to careless mistake.

There will be no policing as usual...look at all the fuss about money laundering and all the time that wasted for no effect.

Why oh why did they not use the rules they had instead of giving the criminals a get out of jail free card.....It's as if they are really saying Tax Evasion is O.K. so long as you don't use a legitimate accountant.

 

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04th Mar 2013 12:08

Minefield

I feel this could be a bit of a minefield for agents and HMRC alike.  I'm all in favour of rooting out the bad apples in both practice and HMRC, but this could destroy innocent lives.

I also feel the penalties are both too high and too low.  Too high a starting point (£5,000) to cover small agents and smaller cases and too low (£50,000) to cover larger cases.

Let's take an example: practitioner falsely inflates (more likely is he adds in something that later proves to be too high after an enquiry, based on previous information supplied by a client) a claim for expenses on one client, and the Revenue decide to go for the new penalty, on the assumption that 'they did it once, they must do it all the time'.  The lost tax is £200.  Further enquiries into other clients show no other evidence of any inflated figures. Was the £5,000 penalty justified?

On the other end of the spectrum, ACME big accountancy firm falsely produces a tax loss of £10m, and ends up with a penalty of £50,000 (when they received fees of £500k+).

They need to scale the penalty to the tax loss and with a view to the fees charged.

They also need to tread VERY carefully with this one and any decision to go for such a penalty needs to be taken at a senior level in HMRC- not by a local compliance officer.

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By norstar
04th Mar 2013 12:13

Time to retire

What with RTI and now this, it's starting to feel that HMRC are doing everything they can to make the position of the agent untenable and the level of risk faced unacceptable.

It's all well and good if your client profile is that of relatively few educated and successful clients with big fees who will listen to your advice and follow it, but firms with lots of smaller clients are facing an uphill struggle. We already do what we can to keep them in line, but if we're now facing penalties for their failures, well, time to retire.

And anyway, at what point does advice re: tax avoidance become advising clients "in the course of business leading to a loss of tax revenue"?

Some great comments here and for my tuppence worth, I concur with the comment about Inspectors not always being fair, let alone their own independent review services. I rarely see a complaint upheld - even when it's utterly obvious the inspector is in the wrong.

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04th Mar 2013 12:30

Dishonest Tax Agents

I know for a fact that there are accountants who make up the accounts. I will be very pleased to see these people stopped. But that means the clients tax return needs to be audited by HMRC.

Alot of this is not taking place.

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04th Mar 2013 12:34

@phil there are

unfortunately dishonest people in all walks of life... that isn't going to change whatever you do (and these penalties are unlikely to change that)

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By Tosie
04th Mar 2013 12:35

norstar

You are so right. I am sure most accountants are honest but the plain fact is that sometimes we make decisions that can be challenged and proved to be wrong.

We have a starting date of 1st April but does this mean that only actions after that date are to be the subject.

I think we will have to do full audits on every client and not make any assumptions of any kind.

 

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04th Mar 2013 12:50

Black Knight

"actually there is a prospective s.99 omission from the 2012 FA" 

 

So there is. Well spotted. 

It's all very odd.  Why couldn't they have just tacked a '0' on the end of the £3,000 fine of S99?

I suppose they want to be seen to be doing something. Why don't they just get a jury (the first Vicky Price jury perhaps?) to decide how much tax someone ought to pay on the basis of what they look like? Anyone pretending they can't afford to pay can be publicly flogged by Margaret Hodge.

 

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04th Mar 2013 12:52

For whom the bell tolls

In my view anyone who "Makes Up " the figures for either his own business or for any alleged client is conducting a fraud on the banks, The Revenue and the customer. He is also calling into judgement any other business decisions advice or activity they are involved in.

There are on the other side genuine lost or mislaid records cases where the proper process is to sit down with the client and obtain a position that is recorded and is the client's best  recollection of the income and costs+ expenditures that the client will then instruct the accountant to use.

There is risk in doing this but the client should be briefed and warned of the possible consequences and a proper letter of representation taken signed by the client and retained as evidence.

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04th Mar 2013 13:40

the worry is for the

good practitioner who advise his client on options to save tax, what he can claim, where estimates are justifiable etc...oh that is probably most 'trusted' advisers....it appears we are becoming (already are?!) an extension of the Revenue and putting the Revenue's interpretation of legislation first and only considering the client (who lets not forget pays us) second....

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04th Mar 2013 16:03

Rogue tax agents

This is a pathetic little bit of legislation that makes me laugh and laugh, bearing in mind that some of the biggest banks have been running the best and largest tax avoidance scams since Williams the Conquerer.

What the Revenue are saying is that the current situation is that it's alright to advise big corporations to book all their profiits through shell companies which end up in the Cayman Islands, whilst Joe Soak who makes Fred the Plumber minimise his tax liability is a thunderous cad and rogue and will appear in the magistrates court.

Truly this silly little country gets madder by the minute. Thank God I am not in tax anymore and only do an occasional bit as part of my voluntary welfare rights work. Otherwise I would go plain up the wall with all this barking nonsense.

 

 

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04th Mar 2013 16:24

Let's be realistic

Accountants minimising the tax paid by clients legally are not dishonest.

I assumed (maybe incorrectly) that this will only apply to accountants who have acted dishonestly, which is very different to the scare stories that they will be chasing accontanst that use normally accepted means of avoidance.

It wouldn't bother me if they went after accountants promoting the aggressive avoidance schemes, but even they couldn't be classed as dishonest if the accountant believed them to be within the law.

Maybe HMRC won't be fair, and the FTT may not be impartial, but like everything else we get thrown at us ... we won't get a say or choice in the matter ... maybe the Big 4 will have a little influence, but they seem to be immune anyway.

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04th Mar 2013 16:40

the worry is how

close the revenue's interpretation of presenting misleading/false information is to a client where you have estimated the private use, or calculated the use of home etc etc (and inevitably some inspectors will lose all touch of reality when looking at this).

 

At the other end of the scale are client's who for whatever reason have no/little records and essentially we have to 'make it up' based upon best info - clearly the client is not trying to evade tax (if he was he wouldn't complete a return) - but in the absence of records i wonder how the revenue would approach this (even if the net profit % etc looked 'about right' for that business).

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04th Mar 2013 16:49

Don't worry so @justsotax

If that is to be the criteria then every accountant in the country will be landed with civil penalties, or we will all be out of business. I can't believe that would benefit HMRC, or anyone else, even if they did have the manpower to achieve it.

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04th Mar 2013 17:03

I try not too....

but you can imagine.....(having been witness to an enquiry where a £10 cash withdrawal in a clients account was queried i do wonder sometimes where the revenue priorities lie)....

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04th Mar 2013 17:57

Time will tell

justsotax wrote:

but you can imagine.....(having been witness to an enquiry where a £10 cash withdrawal in a clients account was queried i do wonder sometimes where the revenue priorities lie)....

Can I just say that in another life I can recall a £400K case arising from a question in relation to a credit card payment of under £10 but that is another story.

 

The main safegaurd I see is that any proof will have to be to criminal standard even though the penalty if it is ultimately established will be  a civil one. It would appear therefore that decisions will have to be made at a very senior level and also potentially include the HMRC "eagle beagles".

However as in all new things it is only time that will tell and the profession will have to watch this one with careful eyes......

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By 7555775
06th Mar 2013 12:18

Saw this the other day, I thought this was intended to catch those guilty of stealing repayments etc. It seems that mission creep has set in and as others have said isn't what is being proposed already covered elsewhere. Stealing repayments is just theft anyway isn't it?

This certainly makes me want to give up having my own clients, another nail in the coffin of the small practitioner.

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By Old Greying Accountant
06th Mar 2013 23:37

There is no such thing ...

... as a sea gull per se!

Lesser Black-Backed Gulls can be killed under general licence in force under W&CA 1981

http://www.naturalengland.org.uk/Images/wml-gl04_tcm6-24149.pdf

As can the Herring Gull

http://www.naturalengland.org.uk/Images/wml-gl05_tcm6-24150.pdf

I would assume this was done on the grounds of public health

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07th Mar 2013 13:33

I know..

I used the term Seagull as a generic term because that , to most people on this site, is what Gulls are.

I am well aware of the differences between various sub species of Gull, including Lesser Backed  Gulls, Herring Gulls,

Greater Black Backed Gulls, Common Gulls etc  etc etc as I am a trustee of a charity that looked after injured and orphaned Gulls of

all types.

These so called public health and safety get outs are being used by so called BIrd "Control" companies to kill Gulls

for such reasoons as noise and dive bombing,. both of which incidentally are prohibited reasons for

slaughter.

I am hoping to bring a prosecution of the Bird Control Company where I live as a test case.

By the way ..Old Greying Accountant.. you don't live in Peacehaven in Sussex do you?.

 

 

 

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07th Mar 2013 14:49

Seagulls.....

I do remember listening a couple of years ago to a radio report one morning from the Glastonbury music festival and they went over to the reporter who said he was on site and that because it was early in the morning he was there on his own except for a flock of seagulls and I thought he meant A Flock of Seagulls was there but he really did mean a flock of seagulls and there was a bit of confusion between the reporter and the studio as the people in the studio made the same mistake as I had, which I thought was mildly amusing but when I went into the office and recounted the story to one of the junior members of staff he just looked at me blankly.

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07th Mar 2013 14:56

excellent!

although it's got me lost.

are Seagulls taxable or just down right dishonest? are they even resident?

When I first read it I thought it was an Eric Cantona moment?

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By taxinfo
07th Mar 2013 15:32

seriously though...

The only answer to this - barring the legislation being removed completely - is that proper independent checks and balances must be put in place all through the process.

I see reports here of bad experiences with the FTT, HMRC staff et al so surely someone outside of the tax system must be given the power to police this.

After all, the HMRC keep saying they want to work with agents as they can't run the tax system without us so why alienate all of us? It serves no purpose.

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07th Mar 2013 18:52

i bumped into Mike Score

last year , he was the lead siger , i think , with A Flock of Seagulls , i ran ....

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By Old Greying Accountant
08th Mar 2013 13:51

No, I don't live in Peacehaven ...

... and I don't shoot, trap, poison or do any other method of control on gulls, I rather quite like them. It is just when you said the gulls were in the flats I thought that probably would be a health hazard. 

However, I do appreciate that on a small heavily populated island some control is needed. Over population by any species is not good, the LASC loonies have proven that with their farcical deer "sanctuary". It is better to have a smaller, healthy poulation of any animal type than a large unhealthy one. I would sometimes rather wish they would put hoodies on the general licence though (and I'm not referring to types of corvid)!

Funny thing though, there always seems to be more "seagulls" in the countryside than on the coast, especially round landfill. You don't need to be Einstein to work out if we weren't such a dirty species gulls wouldn't be wanting live so close! 

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19th Mar 2013 08:53

All Gull numbers are falling

My use of the word "in" may have been loose. I meant that the Gulls were nesting on the roofs of the blocks.

Residents then complained that the Gulls were noisy and they "dive bombed" them.

The reference to "dive bombing" by residents and the Tory MP for Gloucester is an insult to all those like my parents, who I am still lucky enough.

to have, who remember the V1, and V2 bombs hitting London in  1945,and to to the residents of Syria who are dive bombed by Assad's

air force.

Gulls do not kill and maim! I saw three baby Herring Gulls dumped into a bag by the slaughterers where I live in front of the destraught

and terrified parent Gulls. When I complained to the Police , I was told me that was "alright" for people to kill Gulls who "assaulted" them or disturbed

their sleep.

Herring Gull numbers are in drastic decline. So much so that they are on the RSPB Red LIst. Their numbers do not need controlling.

Instead the laws that the People's elected representatives have seen fit to pass protecting our Gulls and other wildlife need to be enforced

vigorously.

 

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18th Mar 2013 21:31

Dishonest Tax Agents Trouble Ahead

Where the accounting practice is a limited company, are the potential penalties the responsibility of the limited company or the individual e.g. a director of that company?

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18th Mar 2013 22:55

Penalties whee accounting practice a limited company ?

Dear Wayne

Thansk for your question

Paragraph 2 of schedule 38 provides that tax agents are "individuals". This precludes a limited company being a tax agent and this is sensible in that the aim is to impose a penalty because of personal misconduct.

I hope this helps.

John flood

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