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I have received a request (from a new client)  to review HMRC assesments for 2008/09 to 2010/11 which show a total liability of over £7,000. These were issued in October & November 2012. They have also sent tax returns for completion for the 4 years to April 5th 2012

I claimed relief under ESCA19 which has been refused because HMRC state  "we have no record of any information sent by your client or a third party which we failed to act on. If your client thinks that we have overlooked information that has been sent to us please let us know

1 What information was provided

2 When it was sent to us

3 Who sent it" .

The letter continues that receipt of end of year pay and tax details sent to us by their employer is not classed as information for the purposes of ESC A19.

I have then referred to the HMRC manual under reference PAYE95005 to PAYE95095 .

PAYE95055 provides details of the type of documents that an employer may submit and would be acceptable for considering relief under ESC A19 and confirms (under "Other Information") that the receipt of  forms  P35 or P14 are not included.

My client continued working after he commenced drawing his occupational pension in June 2008. The employing company used a large pension outsourcing company to administer the pension. They used a code of 522L in June 2008 (appears to be the personal allowance for a  code for 2007/08) and this was increased to 582L in September 2008. (no idea why!!)

As the outsourcing company was replaced by a different outsourcing company in  April 2012 I have not yet been able to find out the reason for the above 2 code numbers  or whether a P46 (PEN) was submitted to HMRC.

Full personal allowances continued to be given against the employment income.

My client therefore received 2 sets of personal allowance and the combination of his employed and occupational  pension income results in 40% tax being due on a proportion of the total income.

HMRC state that in their decision letter "We only became aware that this additional pension income had started when the P14 was submitted at the end of the year". 

HMRC then issued coding notices  in March 2010 being a BR code for the Pension and amended the employment code of 47L to include an "adjustment to basic rate". This should recover the estimated higher rate tax.

The P14 for 2008/09 would have been received in April 2009 so it took about 10 months for HMRC to issue new codes and then not for 2009/10 but to start in April 2010.Just 20 days later they reissued the Pension BR code and eliminated the "adjustment to basic rate restriction" on the employment code and therefor no higher rate tax was collected in 2010/11

Finally the codes issued in February 2011 for 2011/12 were correct and the correct tax was therefore paid for 2011/12

My questions are

1 Under PAYE95011 it states that " If HMRC discover that the underpaid tax has occurred because of an employer error , and not because of  HMRC failure to make proper & timely use of information,then the employer should be pursued for payment of tax.Assuming that the P46(PEN) was not submitted by the outsourcing company has anyone been successful in getting HMRC to eliminate the whole or part of the underpayment as far as the employee is concerned? If so has HMRC tried to tax the employee on the "benefit" of his employer paying the tax ?

2 I have no idea why HMRC changed the code for 2010/11 which resulted in a further underpayment. They must have had some information to initially issue a code BR on the pension  & one to recover the higher rate tax on the employment code.Do you think there is a valid claim for elimination of the 2010/11 liability as HMRC amended the code incorrectly? 

3 As self assessments have been issued will interest be charged by HMRC if the tax is not written off under ESC A19?

Very many thanks for any comments


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By Mallock
27th Feb 2013 18:47

HMRC changed the wording of their own guidance (a couple of years ago I think) which basically resulted in them abdicating all responsiblity should they not deal properly with information provided to them on P14 and other end of year returns.

I have just finished a lengthy discussion with HMRC on a similar issue and they refused to budge. Nothing is their fault and therefore covered by ESC A19 unless the information was provided by the taxpayer.

In my opinion a very underhand method of sidestepping a thorny issue - especially when HMRC can make up or change the rules to suit themselves.

In my experience I see little chance of success I am afraid.

Thanks (1)
27th Feb 2013 20:27

Go the distance

Go all the way to adjudication with this.  Go to the moneysavingexpert site, you'll see there that the majority of Esc A19 cases result in:

1.  HMRC caving in.

2.  A favourable adjudication.


In cases like these, that is, where it is just blatant incompetence on the part of HMRC.


Thanks (1)
27th Feb 2013 21:25

Have a look at

And the link back to Keith Gordon's FOI

HMRC need pressing on the P14 issue, but it is clear they are on the back foot.

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to brumsub
27th Feb 2013 23:01


Grateful thanks for the link provided girlofwight. Unfortunately I cannot access taxation article as not a subscriber but will pursue this


I think that the refusal of HMRC  to accept a P14 when 2  PAYE sources are shown is scandalous.


I will also consider the possibility of getting recompense from  the Pension outsourcing company who may have failed to  provide a P46(PEN)


Many thanks again for your input


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By refs8
27th Feb 2013 23:28

They are resisting a case of ours that is now with adjudicators office thinking about using the data proctection act and see what happens any thoughts - just seen something on accounting web

Apparently there is no charge

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to martin.curtis
28th Feb 2013 11:23

Thanks refs8 for your input. Not sure how the DPA is relevant. Where is this mentioned on accounting web? I could not find any relevant article through the accounting web search facility

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04th Mar 2013 12:15

Mixed success

We've had mixed success with ESC A19.

Two very similar cases where one had three employers and the other two.  The one with two employers they rejected initially but then accepted the claim and wrote off all the tax on the second letter.  The one with three employers for many, many years we went all the way to the adjudicator and it still got rejected.  HMRC stuck by their P14's not sufficient to claim and even though they had written to one employer for conformation of how much he earned etc many years ago (and not got a reply and not chased it up) they still maintained that as the taxpayer had not contacted them himself A19 didn't apply.  Adjudicator basically said that it was not their job to see if the rule on P14's was fair or reasonable, just to see if HMRC had followed the rule. 

On another where the taxpayer started to receive a state pension and tax codes were issued but not correctly used by the employer we managed to get them to chase the employer instead.


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By refs8
04th Mar 2013 12:29

Think we need to keep fighting this

I think we should need to keep fighting this, even if it costs us time for our clients. This is no longer for me about making fees, it is in fact the HMRC are just wrong. We have one in with Adjudicators office and three or four more will follow. 

I personally intend to keep fighting this.

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By koatzy
04th Mar 2013 12:53

ESC A19 refusals

Might be an idea to have a look at SI 2003 No 2682 regulation 72 as this seems to get a quicker result than ESC A19 claim

There are limited circumstances where HMRC can transfer the liabilities from the employer to the employee. Although receipt of a completed return is one such circumstance


Thanks (0)
04th Mar 2013 13:16

Adjudicators office - long wait....

I submitted one to the Adjudicators office having exhausted HMRC's remedies, that was 10th Aug 2012. Other than an acknowledgement a few weeks later I've heard nothing. Probably a reflection of how many such cases they have rec'd.


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By Wardle
04th Mar 2013 13:47


I had a very similar case, same circumstances and similar amounts involved, and did eventually manage to win under ESC A19. I was persistent and it took 16 months to be resolved. I put my case forward twice to HMRC and was declined twice. They then told me I had no further right of appeal which is actually incorrect - I then wrote to the Adjudicators Office in London and they sent the case back to the HMRC PAYE Complaints Service stating HMRC hadn't followed procedures and hey presto, I eventually got the result I believed was correct. I used the following exceptional circumstance justifications:


a.    HMRC have not made timely use of the information they have received by way of P14 records from employers / pension providers

b.    My client believed that, as he had always been paid under our PAYE system, his tax affairs were in order

c.    For 2006-2010, HMRC has notified him of the underpayment more than 12 months after the end of the relevant tax year

d.    HMRC has allowed these tax arrears to build up over more than two whole tax years in succession

e.    HMRC failed more than once to make proper use of information received about a source of income from employers / pension providers

Don't give up!

Thanks (0)
04th Mar 2013 13:56

Data Protection Act

I have an ongoing ESCA19 claim and requested my client's file under the DPA.  It was in fact very enlightening.  It shows that there has been a lack of recording of telephone calls by HMRC and it also shows when they became aware that the combination of salary and pension would have exceeded the higher rate tax brackets.

As it is a free service I cannot see why you would not make the application where there is a matter under dispute.  You can at least see everything HMRC are looking at.

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to Portia Nina Levin
16th Mar 2013 09:26


Hi - I asked for this and all they provided me with was a computer print out of the National Insurance record - should I have received letters and phone call details?





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By refs8
05th Mar 2013 12:33

Paula thanks for the update, I may very do this with shortly. 

Thanks (0)
By K81
05th Mar 2013 13:49


at the risk of playing devils advocate...

if the assessments are correct why shouldn't someone pay the tax that they owe?

Thanks (1)
05th Mar 2013 14:04

At the risk

of playing devil's advocate - why would you advise a client to pay his wife a salary for assisting with the business?  Because there are rules that permit it and I would be doing my client a disservice if I did not raise the subject

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By refs8
06th Mar 2013 12:56

Because HMRC seem to want to move the goalposts when it suits them - most of the cases are genuine HMRC errors and taxpayers suffer.!

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By Iwazaru
12th Mar 2013 11:24

It seems as if..

HMRC have suddenly tasked a group to chasing things somewhere, judging by the amount of these cases doing the rounds.

Either that or (new) claims for employment related allowances are triggering reviews.

I have a case ongoing where a pension provider messed up by failing to apply notified PAYE codes and several years later HMRC are chasing the underpayment. Taxpayer has no need to complete ITR, nor has ever been asked to.

I haven't yet claimed ESC19, I have thus far done all but claim and have suggested that HMRC goes to the pension provider to obtain the underpaid tax.


Thanks (0)
16th Mar 2013 09:20

P14 Information

How does this work????   I've been issued a demand for £2.7k in relation to 2008/9.  This was last year.  I informed them that I had no reason to believe that things were not up to date etc etc.  

I tried claiming the ESCA19 based on the fact that  employer returns had been submitted.  I also informed them that I had only kept records in line with their record keeping guidance (22 months from end of tax year) document, which meant that I only had to keep the docs for those years if an investigation had been launched, which it had not.

So I've been refused as there is no evidence on record to show that they received an info during the tax year 08/9 which would have enabled them to reduce or eliminate the payment.  They do not regard P14 details as information for the purposes of the concession.  So it's not information but has triggered all of this !!!!, but....

"I note your comments concerning the advice on the HMRC website to retain records for at least a period of 22 months from the end of the tax year in which they relate to.  As you have advised that you no longer have your form p60 and p45 for the tax year 2008-9, I am enclosing a letter giving details of the pay and tax details posted on our records to assist you when completing the return".

So they are happy for me to use their p14 information which is not information!!!

It gets worse though, before Christmas they said theyd be happy to discuss taking it in PAYE coding in a letter, I said if the tax is due and not written off that I would need to do this then in the next letter it becomes no longer possible!

Do I challenge them on the 'information' as this appears to be double standards.  Also, it is apparent that this came about as I received a payment after my p45 during the year that was grossed up, i.e. the employer did not deduct it and remit it to HMRC.  I didn't realise, so in their paragraph above if I was to complete my tax return based on p45/p60 this payment would not be there and they would need to rely on p14?

Thoughts on challenging further or commence payment plan appreciated!





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17th Mar 2013 12:41

please refer earlier posts

Please take a look at my posts on this site - and moneysavingexpert "Cutting Tax" under "chrismac1" on this subject.  If you want to go after this, put your case together and be like a terrier with a bone in asking them for information and pinning them down to details.  Then you can win, in fact you are likely to win.  It will take 6 months to a year, not everyone is up for that.

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18th Mar 2013 09:52

So challenge them on the information concept?

What do you think?

When I request under the data protection act what should I specifically be asking for?


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19th Mar 2013 09:42

This is the request I sent




We are the agents for Mr XXX and request a copy of the records you hold for our client from 2002 onwards, including copies of notes of telephone calls, file notes and emails.

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to Ruddles
19th Mar 2013 11:10

Need Authority

You will need your clients authority to make a request on their behalf.  The 64-8 is not sifficient for DPA.  DPA relates to living individuals making requests for their own personal informaion.


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21st Mar 2013 09:10


I submitted my request with a copy of the 64-8 and it was accepted

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21st Mar 2013 09:19

That's a Breach

As the 64-8 does not refer to the DPA and it does not give you any rights under the DPA.  As a request can only be made by a living person about their own private records it should not disclose those records unless it has that persons specific permission to do so, anything else is a breach of the act.

I just reviewed HMRC's own guidence and it states that 64-8 is not sufficient, seems yet again they are in breach of the rules.


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21st Mar 2013 10:07

DPA - Iam that person

I assume I can just ask for them myself and don't need an Agent?

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21st Mar 2013 10:31

SAR online form

I've just used this form - will this be ok?


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22nd Mar 2013 14:01

Employers Bulletin - issue 43

Interesting issue...


Employers Bulletin issue 43, page 8 - states:

 "Details submitted by employers on forms P14 are used to update employees’ PAYE


"To help us update your employees’ records correctly, please take care when

completing forms P14 for 2012-13"

To me it seems that they are trying to have their cake and eat it - the are saying the P14 doesn't count for A19, and then telling employers they need it to update employee records.

I shall be quoting this back to them when necessary.

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By refs8
23rd Mar 2013 09:54

We have just requested the DPA files on three cases. We are not going away on this one !

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