10% reduction in penalty abatement

Has anyone managed to get HMRC to agree to maximum abatement in this situation?

Didn't find your answer?

I have a client who is under enquiry for undeclared overseas rental income. Goes back to 2008/09, so penalties are under Sch Sch 24 FA 2007.

HMRC have agreed maximum penalty abatement for 'telling, helping and giving', however they are restricitng this by 10% because the default was for longer than 3 years. (I note that various HMRC Factsheets refer to this 10% abatement restriction, although this is only shown in more recent versions).

Does anyone have experince of this, in particular have they got full abatement in cases where the default has lasted for longer than 3 years?

Thanks.

Replies (16)

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By SteveHa
16th Oct 2019 15:39

Given that, in the time he's had the income they've had the let property campaign and the Lichtenstein disclosure facility, so plenty of opportunities to come clean, I'm surprised he got that much abatement.

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By mail.taxperfect.co.uk
16th Oct 2019 16:14

SteLacca wrote:

Given that, in the time he's had the income they've had the let property campaign and the Lichtenstein disclosure facility, so plenty of opportunities to come clean, I'm surprised he got that much abatement.

Thanks, and you're quite correct, nonetheless he has and I was just wondering about the 10% restriction and if anyone had had any practical experience of this.

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Red Leader
By Red Leader
16th Oct 2019 17:31

Sorry to be ignorant, but why are HMRC able to assess as far back as 2008/09? I have a client with an unprompted overseas disclosure where HMRC are saying for that year they can only invite voluntary restitution rather than demand it.

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By Red Leader
16th Oct 2019 17:36

EDIT: I meant PROMPTED not unprompted!

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By mail.taxperfect.co.uk
16th Oct 2019 17:56

This was an in-date S9A enquiry which uncovered the undisclosed income, hence HMRC are assessing previous years under Discovery (asserting Deliberate behaviour, hence can go back upto 20 years). It's not under the Overseas Disclosure regime.

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By unearned luck
16th Oct 2019 23:22

I don't, but I do recall the fuss in the prof press when this change was announced. There was concern that it might put people off from putting up their hands and is arbitrary and would be, on those grounds, contrary to public policy. Of course, HMRC can't be sure that FTT judges would go along with this change, so indicate nicely that you are prepared to go to the tribunal (as a matter of principle - not (just) for the amount at stake). Consider the LSS.

I don't think that ADR would work as the officer is applying departmental policy (it is the policy that is misguided). For the same reason internal review would also be bootless.

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By mail.taxperfect.co.uk
23rd Oct 2019 10:46

unearned luck wrote:

I don't, but I do recall the fuss in the prof press when this change was announced. There was concern that it might put people off from putting up their hands and is arbitrary and would be, on those grounds, contrary to public policy. Of course, HMRC can't be sure that FTT judges would go along with this change, so indicate nicely that you are prepared to go to the tribunal (as a matter of principle - not (just) for the amount at stake). Consider the LSS.

I don't think that ADR would work as the officer is applying departmental policy (it is the policy that is misguided). For the same reason internal review would also be bootless.

Thanks. You mention "change". Before the 10% restriction was announced, was there no such restriction? HMRC are trying to tell me that it's always been the case, but I'm wondering if they're just trying to pull the wool over my eyes. Cheers.

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By unearned luck
24th Oct 2019 00:22

Now that you have caught-out HMRC getting things wrong, perhaps they will be more sympathetic and understanding with regard to your client’s errors. See John 8:7.

From the current text of CH82444:

"General approach to timing of telling

"Normally the maximum reduction for the timing of telling is only earned if all the telling occurs immediately after the opportunity to tell begins.

"Where a person has taken a significant period to correct their non-compliance in relation to either an onshore or offshore matter, or they would previously have been able to make a disclosure through one of HMRC’s offshore disclosure facilities, they can no longer expect HMRC to give them the full reduction for the quality of disclosure. A ‘significant period‘ is normally considered to be over 3 years but may be less where the overall disclosure covers a longer period."

https://www.gov.uk/hmrc-internal-manuals/compliance-handbook/ch82444

From the version extant on 4/6/14 as preserved on the National Archives website:

"General approach to timing of telling

"The time that has passed between the date when the inaccuracy arose and the date of the telling is not important. What is important is the stage in the check at which the person starts to make the disclosure."

https://webarchive.nationalarchives.gov.uk/20140604014435/http://www.hmr...

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By unearned luck
24th Oct 2019 00:30

repeat deleted.

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By mail.taxperfect.co.uk
24th Oct 2019 11:05

unearned luck wrote:

Now that you have caught-out HMRC getting things wrong, perhaps they will be more sympathetic and understanding with regard to your client’s errors. See John 8:7.

From the current text of CH82444:

"General approach to timing of telling

"Normally the maximum reduction for the timing of telling is only earned if all the telling occurs immediately after the opportunity to tell begins.

"Where a person has taken a significant period to correct their non-compliance in relation to either an onshore or offshore matter, or they would previously have been able to make a disclosure through one of HMRC’s offshore disclosure facilities, they can no longer expect HMRC to give them the full reduction for the quality of disclosure. A ‘significant period‘ is normally considered to be over 3 years but may be less where the overall disclosure covers a longer period."

https://www.gov.uk/hmrc-internal-manuals/compliance-handbook/ch82444

From the version extant on 4/6/14 as preserved on the National Archives website:

"General approach to timing of telling

"The time that has passed between the date when the inaccuracy arose and the date of the telling is not important. What is important is the stage in the check at which the person starts to make the disclosure."

https://webarchive.nationalarchives.gov.uk/20140604014435/http://www.hmr...

Thank you very much. The statement on the previous version of CH82444 is quite clear that there is no 3 year, etc. restriction. I'll give it a go. Thanks again.

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By More unearned luck
01st May 2023 13:01

What was outcome?

See Richard Thomas' comment here: https://www.accountingweb.co.uk/tax/hmrc-policy/what-you-dont-know-about...

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By mail.taxperfect.co.uk
01st May 2023 15:57

More unearned luck wrote:

What was outcome?

See Richard Thomas' comment here: https://www.accountingweb.co.uk/tax/hmrc-policy/what-you-dont-know-about...

We won at the FTT on the basis that the behaviour was a) not deliberate and b) the 10% penalty abatement restriction was not valid. So, a good day all-round, thanks I should add to the enormous assistance of a very clever barrister.

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By mail.taxperfect.co.uk
24th Oct 2019 11:29

unearned luck wrote:

Consider the LSS.

I don't think that ADR would work as the officer is applying departmental policy (it is the policy that is misguided). For the same reason internal review would also be bootless.

Excuse my ignorance, but what is LSS? Thanks.

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By unearned luck
02nd Dec 2020 00:14
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By Software Seeker
01st Dec 2020 10:15

Hi all, just looking at this thread and I notice that Factsheet CC/FS13 dated 10/15 does NOT make reference to the 10% restriction, then CC/FS13 dated 10/18 DOES make reference to it, then the latest CC/FS13 dated 03/20 has taken it out again! Does anyone know what HMRC's position is on this currently, given that they appear to be changing their public guidance every couple of years? Have they rescinded on the 10% restriction? Thanks.

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By unearned luck
02nd Dec 2020 00:50

Do you have a link to the 10/18 version? But since FS13 is about publishing details of serious defaulters it might have been removed as irrelevant. It's still in FS7a.

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