Share this content

HMRC LATE FILING PENALTY FOR P11Db

Is there an automatic penalty for filing P11Db 24hrs late?

Didn't find your answer?

Third party payroll provider has messed up the calculation of the Class1A NI payable on our P11Db

Are HMRC known for an automatic penalty for late filing?

Data has to go through TWO time-zones to reach the provider filing the return.

Replies (14)

Please login or register to join the discussion.

avatar
By IWantToLearn
06th Jul 2022 19:38

Mount_Gay wrote:

Third party payroll provider has messed up the calculation of the Class1A NI payable on our P11Db

Are HMRC known for an automatic penalty for late filing?

Data has to go through TWO time-zones to reach the provider filing the return.

Yes, the penalties are automatic.

You may have grounds to appeal if it really is the fault of the software.

Thanks (1)
Replying to IWantToLearn:
avatar
By Hugo Fair
06th Jul 2022 21:25

"Third party payroll provider has messed up the calculation ..." doesn't sound like it's the fault of the software.

In which case, 3rd-party provider should reimburse the penalty - assuming that this isn't excluded within their T&Cs (in which case I'd move to a different payroll provider)!

Thanks (1)
avatar
By bendybod
07th Jul 2022 11:13

Yes, it should not be beyond the third party payroll provider to know when midnight in the UK is.

Thanks (0)
avatar
By Wycher
07th Jul 2022 12:57

I thought the fines did not actually commence until the 19th July or has that changed.

Thanks (2)
Replying to Wycher:
avatar
By Hugo Fair
07th Jul 2022 13:17

HMRC Employer Bulletin: June 2022 ...
"P11D and P11D(b) filing and payment deadlines.
Do not forget that you need to tell us about any Class 1A National Insurance contributions that you owe for the tax year ending 5 April 2022 by 6 July 2022 at the latest.
You also need to send us any P11D forms due by 6 July 2022. Failure to do so may result in a penalty.
Any Class 1A National Insurance you owe must reach us by 22 July 2022."

Thanks (1)
Replying to Hugo Fair:
avatar
By Wycher
07th Jul 2022 14:11

Key word is may result in a penalty and then later in the document i believe it refers to penalties commencing if not submitted/paid by the 19th July.

Thanks (2)
Replying to Wycher:
avatar
By Hugo Fair
07th Jul 2022 14:23

Can't believe that I fell for HMRC's use of "may" (one of their favourite weasel words) - especially since my brain 'knew' it was 19th July that mattered!

I thought a sign of age was when you seek reference confirmation of what you intrinsically already know ... but it's obviously actually when you let that reference override your knowledge (even when the reference is vague and therefore 'wrong')!

Just as well that I'm now retired.

Thanks (3)
Lone Wolf
By Lone_Wolf
07th Jul 2022 13:55

The late filing penalty is based on the Class 1A NIC unpaid by 19 July. So long as they pay their Class 1A bill on time, the penalty will be nil.

Thanks (0)
Replying to Lone_Wolf:
Lone Wolf
By Lone_Wolf
07th Jul 2022 14:12

Actually I don't think that's quite right. The payment of the Class 1A doesn't seem to come into it.

SI 2001/1004 - Social Security (Contributions) Regulations 2001. s81, specifically s81(2)

"Any person who fails to make a return referred to in paragraph (1) by the date which applies to him under regulation 71(1), 72(2) or 73(2), may be liable—..."

The date referred to in 71(1), 72(2) and 73(2) is the due date for Class 1A payment - so 19th July. Doesn't mention anything about it having to be paid on time. I'm not sure why that bit stuck in my mind, but hey ho.

Thanks (2)
Replying to Lone_Wolf:
avatar
By IWantToLearn
07th Jul 2022 20:36

Lone_Wolf wrote:

Actually I don't think that's quite right. The payment of the Class 1A doesn't seem to come into it.

SI 2001/1004 - Social Security (Contributions) Regulations 2001. s81, specifically s81(2)

"Any person who fails to make a return referred to in paragraph (1) by the date which applies to him under regulation 71(1), 72(2) or 73(2), may be liable—..."

The date referred to in 71(1), 72(2) and 73(2) is the due date for Class 1A payment - so 19th July. Doesn't mention anything about it having to be paid on time. I'm not sure why that bit stuck in my mind, but hey ho.

That's helpful, thank you.

Thanks (0)
avatar
By richard thomas
07th Jul 2022 22:19

This is probably not that helpful, but it is informative.

Lone Wolf’s second thoughts (7 July 1412) are right – it’s regulation 81(2) that imposes the conditions for a penalty to be chargeable.

But there’s nothing “automatic” there, as has been pointed out, and it’s worth elaborating on this as I have no reason to doubt IWantToLearn’s response to the OP’s question, that the penalties are indeed automatically issued.

First, regulation 81(2) says ”may” so there is an element of discretion there. Contrast with Schedules 55 and 56 FA 2009 where HMRC “must” make an assessment if the conditions are met.

Second, regulation 81(2)(a) allows HMRC 6 years during which the errant taxpayer is liable, and there is only one penalty “of the relevant monthly amount for each month … during which the failure continues”, which suggests that a series of monthly penalties issued automatically is not what the regulation allows.

Third, regulation 81(5) limits the penalty to the Class 1A NICs bill. That comparison can only be properly made when the return has been filed or the 12 months are up.

Fourth, the penalties under regulation 81(2) are to be determined under section 100 TMA (regulation 82(1)). Section 100 TMA provides that:

“an officer of the Board authorised by the Board for the purposes of this section may make a determination imposing a penalty …. and setting it at such amount as, in his opinion, is correct or appropriate.”

By section 103(1) FA 2021:

“Anything capable of being done by an officer of Revenue and Customs by virtue of a function conferred by or under an enactment relating to taxation may be done by HMRC (whether by means involving the use of a computer or otherwise).”

And by subsection (2):

“Accordingly, it follows that HMRC may (among other things)—

(d) make a determination under section 100 of that Act (determination of penalties)”

And (3):

“Anything done by HMRC in accordance with subsection (1) has the same effect as it would have if done by an officer of Revenue and Customs (or, where the function is conferred on an officer of a particular kind, an officer of that kind).”

What does this mean? It means that HMRC (ie every Commissioner and officer) may make the determination. It is possible that the person making the determination no longer has to be authorised for the purpose, but section 103 is not mandatory but permissive. Who actually makes the determination in this case? Whether or not s 103 is relevant in this case, s 100(1) requires an element of discretion, as it too says “may” and it also requires the officer t(or HMRC) to set the penalty in such amount as is appropriate. That in turn points to an officer making the regulation 81(5) comparison before anything is done.

Fifth, section 100(5) seems to assume that an officer might make a discovery that the penalty is insufficient and may revise to an amount which appears appropriate to them. It can only be insufficient if the cap and comparison with the NICs payable (reg 81(5)) was mistaken about the amount payable. That kind of action is incompatible with an automatic monthly penalty.

This situation is comparable to that for CT penalties for late filing which I addressed in Khan Properties Ltd v HMRC and which has never been overturned (unless s 103 has done so, which I do not believe).

There is also a late payment penalty (as LoneWolf’s first thoughts say) in regulation 67B of SI 2001/1004. This imports Schedule 56 FA 2009 in a very odd way. It equates the NICs payable with an amount shown in a return under s 254(5) FA 2004, a pensions provision, and then requires you to read for that section of that Act the SS(C) Regulations 2001! Thus paragraph 3 Schedule 56 applies and there are 3 penalties of 5% each. After 30 days, 5 months & 30 days and 11 months & 30 days from the due date.

Thanks (2)
Replying to richard thomas:
avatar
By richard thomas
08th Jul 2022 06:40

It's odd that the penalties for failing to file the P11D itself on time are so different, and definitely not automatic (although I realise that there is a difference in that the P11D is merely an information return with the primary obligation being on the employee to pay, unlike Class 1A).

To charge the initial penalty (up to £300) an authorised officer has to start proceedings in the First-tier Tribunal, and the employer is a party to those proceedings (s 100C TMA and COG914185).

Yet daily penalties of up to £60 a day may be imposed under s 100 by an officer. The upside is that no penalties may be imposed after the failure has been remedied.

I've never known the Tribunal to have dealt with the initial penalty.

Thanks (0)
By Charlie Carne
11th Jul 2022 10:53

The short answer is no; there will be no automatic penalty for filing 24 hours late and I have never come across a manual one levied for this either. Per HMRC guidance:

25. Late return penalties
You may be charged penalties for failing to make a return of Class 1A National Insurance contributions and for fraudulently or negligently making an incorrect return.
The filing date for the return is 6 July. If we do not receive the return by 19 July it may attract a penalty of £100 per month or part month of lateness, for every 50 or part-batch of 50 employees provided with benefits.
If the failure continues beyond 12 months there’s an additional penalty not exceeding the amount of the Class 1A National Insurance contributions paid late.
An incorrect return made carelessly or deliberately attracts a penalty not exceeding the difference between the amount of Class 1A National Insurance contributions shown on that return and the amount that should have been shown.

So it seems that, so long as it is filed by 19th July, no penalty will be imposed.

Thanks (1)
avatar
By Stargazer42
11th Jul 2022 11:06

Hi
Lone wolf is correct, provided the Class 1A NIC is paid (cleared funds) with HMRC by 19 July then no penalty is charged by HMRC. Over the years I have filed many P11Ds between 6 and 19 July and never received a penalty notice for any of them.

Thanks (1)
Share this content