VAT: Accountant made deliberate error

Multiple invoices
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The court found an experienced accountant’s decision to leave three sales invoices off a VAT return was a ‘deliberate error’ which attracted higher penalties.

Here is a key question to consider with this case: when does a sales invoice become a valid legal document?

  1. When it is raised by the supplier.
  2. When the information is entered on the customer’s computer system.
  3. When it is issued to the customer.
  4. When the goods or services shown on the invoice have been delivered to and received by a satisfied customer.

The answer to the above multiple-choice question is 3. when the invoice is given to the customer (VAT Notice 700, para 16.2.1). The customer then has scope to claim input tax (subject to usual conditions) and the supplier will account for output tax, assuming that neither party is on the cash accounting scheme.

Case facts

Promo International Ltd (TC06787) raised three sales invoices on its computer in June 2014 but claimed that the invoices were never issued to the customer and that no goods had been supplied because the customer had cash flow problems and subsequently became insolvent.

A manual adjustment was made to reverse the output tax of £50,641 on these invoices from its June 2014 return. HMRC provided the court with details of subsequent credit notes that partly reduced the invoiced amounts and because these credits were for damaged goods, this indicated that the invoices and goods must have been received by the customer. There was also evidence of payment having been made.

Penalty

HMRC decided that the VAT omission was a deliberate error which was not concealed and that the error had been discovered by a visiting officer rather than declared by the taxpayer – ie a prompted disclosure.

The company was liable to a penalty of between 35% and 70% of the tax at stake (potential lost revenue). The court had to decide whether output tax was due on the invoices and, if so, whether the behaviour of the taxpayer was deliberate.

Onus of proof

The onus of proof is on HMRC when it comes to issuing penalties for deliberate behaviour and the tribunal supported HMRC, based on the balance of probabilities. The court also decided the tax was due on the invoices in question – ie supplies had been made by the company and paid for by the customer.  

A key factor with the penalty outcome was that the VAT return had been completed by an “experienced accountant” who had “made a conscious decision to omit the invoices from the return, and made a manual adjustment to exclude them”.

Learning points

Many businesses have a number of big transactions in a VAT quarter that either involve large amounts of output tax or input tax. These are the transactions that require care and attention and are also most likely to be queried by HMRC. It is important to ensure the VAT paid or claimed is correct.

These are my top three VAT risk areas concerning invoices.

Buying fixed assets

Make sure the purchase invoice details are correct and there are no hidden traps, eg assets on lease/hire purchase where finance is involved. In that case, the VAT may instead be claimable on the monthly lease instalments instead of at the time when the asset is first acquired.

Property deals

If the business is buying commercial property and is being charged VAT by the seller, make sure that the seller proves he opted to tax the building and has issued a valid VAT invoice. Also, consider what the business will use the property for and whether the business may need to opt to tax the building as well.

Major sales invoices

Is the amount of VAT correct (check there is no incorrect zero-rating) and has it been properly declared on the VAT return?

In summary, the Promo directors should have been completely sure of their ground before leaving these three sales invoices off the VAT return. That did not appear to have happened, hence the heavy penalty the company incurred.

About Neil Warren

Neil Warren

Neil Warren is an independent VAT consultant and author who worked for Customs and Excise for 14 years until 1997.

Replies

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27th Nov 2018 10:07

Nice article, I like how you linked the case and learning points so we readers can be conscious of these bullet points when performing work in our daily lives.

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27th Nov 2018 12:23

Not to be pedantic, but if it's deliberate, it isn't an error, it's fraud.

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to SteLacca
28th Nov 2018 09:50

My old maths teacher used to say "that was my deliberate mistake".

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28th Nov 2018 10:53

To be even more pedantic, what is the correct answer from answer 1,2, 3 or 4. Answer is 'c'!!
Also there is answer 5, when the customer pays you which is another option.

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to Ben Alligin
28th Nov 2018 11:22

As in the building trade you have a "request for payment". Then when customer pays a VAT invoice is issued.

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By cricket
to Ben Alligin
28th Nov 2018 15:49

therefore presumably neil means 3

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28th Nov 2018 11:22

Extract above
'this indicated that the invoices and goods must have been received by the customer. There was also evidence of payment having been made.'

What a berk, however vat is a messy horrible tax, I have been told by an accountant a client of his is on the cash accounting scheme, but his bank statements are not always available on -line, dont ask something to do with Barclays, and the ones sent to him go missing, (based on a trading estate), so his vat records are written up to the 15th of the last month in the quarter and not the last day of the quarter (though the 16th to the end of the month go on the next Vat return, nothing drops out), what would HMRC say, is that an error, emission ????

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to AndrewV12
28th Nov 2018 12:35

Customs are pretty lenient where VAT is concerned. In your example there would be no penalty because whatever error there was, was put right in the following quarter. However on a visit there might just be some interest to pay.

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By Dandan
28th Nov 2018 12:55

Am I missing something here ? The decision seems to be wishy-washy. Why say "on the balance of probabilities" ?

Either goods have been delivered and payment made OR goods not delivered. Surely , it is a matter of fact and not probability.

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By cricket
28th Nov 2018 15:46

I assume Neil means 3 not C?

Mr Cricket

Thanks (1)
to cricket
29th Nov 2018 07:21

I've amended so it now reads 3 not C. The alphabetical list was changed in the sub-editing

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28th Nov 2018 17:29

Perhaps the accountant should have issued credit notes to cancel the invoices, then re-invoiced in the next quarter when the matter of delivery had been made clear.
The visiting Customs officer would be unlikely to have spotted this

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28th Nov 2018 18:53

This was irregular accounting and blatant fraud. I am amazed at the boldness of this accountant. No one upsets Vatman. This cape crusader wants output tax handed over and any input reductions must be legitimate.
In my book there is no place for unscrupulous accountants.

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to Mrbailey
29th Nov 2018 22:31

If you read the original case though, it is acknowledged that there was no incentive nor personal gain (http://bkp2.telng.com/ftt/judgmentfiles/j9628/TC05654.pdf).

Tempted to believe it's more a case of reckless incompetence and indifference to the rules than bold dishonesty.

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29th Nov 2018 09:51

Was the "experienced" accountant qualified? If so, perhaps his/her accounting body should be made aware of the case.

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06th Dec 2018 18:51

Another common error is for either the seller to overlook the VAT due on a deposit paid by the customer and account for the balance on the final invoice or for the customer to claim the VAT on the deposit and then claim input tax on the full amount of the asset value on the final invoice.

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