At the risk of upsetting those who favour a different approach to APN, I've put together a (short) list of grounds for a representation against an APN.
These are NOT looking at the success/failure of a JR which is an entirely separate issue.
These are not going to apply to ALL schemes - you have to be selective.
None of them have been proven to be effective or to cause HMRC to withdraw a notice.
Although I have exercised due care in considering these grounds, I cannot take responsibility for any effects caused by your reliance upon advancing these points to HMRC. You have not engaged me and you are not my client. Please take suitable professional advice.
In other words, you can't sue me if any of the below don't work.
Are the conditions met?
An APN can be issued ONLY where a year is open for adjustment AND the scheme is notifiable under DOTAS.
Open year:
Generally means where a section 9A TMA 1970 enquiry notice has been issued. If you're unsure you've had one - ask HMRC for written evidence. A note on an HMRC file that a notice has been or should have been issued, is not enough. You need to see the hard evidence.
In some cases, a year is open for "compliance". These will generally be later years (2011 onwards) and I'm not sure we've seen APN's for those periods yet.
In some cases, HMRC allege that they have issued an assessment under the discovery provisions - section 29 et seq ibid. Discovery is a massively complicated matter. Generally however if you were honest in your return, included the DOTAS SRN, declared all P11D values, then HMRC are going to struggle. If you are in this position, ask HMRC to evidence their "discovery" and until they do, the APN should be postponed.
Discovery assessments can be raised up to 4 years after the end of the year to which they relate. It is NOT enough that HMRC send a letter saying they "intend" to raise a discovery assessment. They MUST issue the assessment within the 4 years. Ask for evidence.
Notifiable under DOTAS
You can claim that the arrangements you took part in did not meet the hallmarks of the DOTAS rules and as such were not notifiable. The fact that many were disclosed is a matter for the provider and you were not consulted, nor required to consent to disclosure. Your view however is that the main purpose of the arrangement was to meet the contractors terms and conditions (they did not want permanent employees, short term projects, etc) and as such TAX was NOT a main purpose and therefore the arrangement is not notifiable.
(There is unfortunately no common language between DOTAS and APN in relations to disclosure and notification. It's not for you to square that circle and unless HMRC can, they are outside the conditions).
What scheme was disclosed? Was the scheme disclosed in 2004, the same one (exactly) that you joined in 2006? If not, then the SRN from the 2004 scheme should NOT apply to your 2006 version. Ask HMRC why they think the schemes are the same.
Basics:
Right name, address, periods, etc?
Value
HMRC seem to struggle to obtain information. Ask them to prove their numbers. Be especially careful over periods close to the end or beginning of tax years.
You may have received some funds on 7th April, but did they relate to an entitlement from before that time? If so, what is the appropriate year? The same could apply at year ends obviously.
If you don't know, how does HMRC? Ask them to prove it. If they can't absolutely nail it, they arguably can't issue the APN due to inaccurate numbers. In contract law this is called "void for uncertainty" and means that if money is demanded from you it MUST be accurate and have received reasonable care and attention.
Correct person?
There are potential grounds where a DOTAS SRN is for a company or partnership and you are an employee. It is arguably the company/partnership that should get the APN.
HMRC saw this coming for partnerships and have a PPN (Partner Payment Notice). However recent case law (this week) is useful in that it says that the personal tax affairs of partners cannot be taken into account in determining the tax position (in the case published, trading or not) of the partnership. Why then should this principle not apply to APN/PPN. Again, ask HMRC why.
The company/employee divide is interesting as well. I'm not going to explore that more here but may come back to it.
Finally, if you received funds from a trust (a loan) which is a separate tax personality from contractor, intermediate employer etc, AND has not disclosed under DOTAS, arguably there is no DOTAS number and therefore no APN.
As I said a short list. I'm sure the provider's template letters are more elegantly phrased and argued and perhaps have more and better arguments. However where your provider has not done this, consider the above and select which ones you think are most appropriate in making a representation.
I offer no guarantee that any of them will work. If they are successful, then they will create a DELAY only. You still have to deal with the liability and if you don't have the funds, talk to HMRC as soon as possible.
I'm interested in some aspects of this and would appreciate some feedback.
In particular, if you select say three items from the above and make a representation under just one of the grounds and that delays your APN, are you able to advance grounds 2 ONLY when you get the revised APN or are you OBLIGED to make all posisble representations at the same time?
If somebody wants to try that and let me know, I'd be grateful.
Finally, finally - the above is self explanatory and can I think be crafted individually.
There are firms out there who will do this sort of delaying tactic for a fee. The going rate appears to be 0.1% of the APN value per month of delay.
There are also moves to achieve a reduction in APN values. if I'm honest I think the scope for that for contractors is limited. HMRC has not much solid data so where would we begin in proving that the figure should be lower? However where this is possible, the going rate for firms to do this seems to be 1% of the reduction achieved.
Thus a £10k APN delayed 6 months, attracts a fee of 0.6% or £60. Probably have to add VAT to that.
Where a provider gives you a template letter for APN reps, use it because it might work and is free.
Where your provider is dust, feel free to select from the above and construct your own rep. This is also free.
Where you feel you want help, don't pay through the nose. The values above are where the market is.
These are NOT looking at the success/failure of a JR which is an entirely separate issue.
These are not going to apply to ALL schemes - you have to be selective.
None of them have been proven to be effective or to cause HMRC to withdraw a notice.
Although I have exercised due care in considering these grounds, I cannot take responsibility for any effects caused by your reliance upon advancing these points to HMRC. You have not engaged me and you are not my client. Please take suitable professional advice.
In other words, you can't sue me if any of the below don't work.
Are the conditions met?
An APN can be issued ONLY where a year is open for adjustment AND the scheme is notifiable under DOTAS.
Open year:
Generally means where a section 9A TMA 1970 enquiry notice has been issued. If you're unsure you've had one - ask HMRC for written evidence. A note on an HMRC file that a notice has been or should have been issued, is not enough. You need to see the hard evidence.
In some cases, a year is open for "compliance". These will generally be later years (2011 onwards) and I'm not sure we've seen APN's for those periods yet.
In some cases, HMRC allege that they have issued an assessment under the discovery provisions - section 29 et seq ibid. Discovery is a massively complicated matter. Generally however if you were honest in your return, included the DOTAS SRN, declared all P11D values, then HMRC are going to struggle. If you are in this position, ask HMRC to evidence their "discovery" and until they do, the APN should be postponed.
Discovery assessments can be raised up to 4 years after the end of the year to which they relate. It is NOT enough that HMRC send a letter saying they "intend" to raise a discovery assessment. They MUST issue the assessment within the 4 years. Ask for evidence.
Notifiable under DOTAS
You can claim that the arrangements you took part in did not meet the hallmarks of the DOTAS rules and as such were not notifiable. The fact that many were disclosed is a matter for the provider and you were not consulted, nor required to consent to disclosure. Your view however is that the main purpose of the arrangement was to meet the contractors terms and conditions (they did not want permanent employees, short term projects, etc) and as such TAX was NOT a main purpose and therefore the arrangement is not notifiable.
(There is unfortunately no common language between DOTAS and APN in relations to disclosure and notification. It's not for you to square that circle and unless HMRC can, they are outside the conditions).
What scheme was disclosed? Was the scheme disclosed in 2004, the same one (exactly) that you joined in 2006? If not, then the SRN from the 2004 scheme should NOT apply to your 2006 version. Ask HMRC why they think the schemes are the same.
Basics:
Right name, address, periods, etc?
Value
HMRC seem to struggle to obtain information. Ask them to prove their numbers. Be especially careful over periods close to the end or beginning of tax years.
You may have received some funds on 7th April, but did they relate to an entitlement from before that time? If so, what is the appropriate year? The same could apply at year ends obviously.
If you don't know, how does HMRC? Ask them to prove it. If they can't absolutely nail it, they arguably can't issue the APN due to inaccurate numbers. In contract law this is called "void for uncertainty" and means that if money is demanded from you it MUST be accurate and have received reasonable care and attention.
Correct person?
There are potential grounds where a DOTAS SRN is for a company or partnership and you are an employee. It is arguably the company/partnership that should get the APN.
HMRC saw this coming for partnerships and have a PPN (Partner Payment Notice). However recent case law (this week) is useful in that it says that the personal tax affairs of partners cannot be taken into account in determining the tax position (in the case published, trading or not) of the partnership. Why then should this principle not apply to APN/PPN. Again, ask HMRC why.
The company/employee divide is interesting as well. I'm not going to explore that more here but may come back to it.
Finally, if you received funds from a trust (a loan) which is a separate tax personality from contractor, intermediate employer etc, AND has not disclosed under DOTAS, arguably there is no DOTAS number and therefore no APN.
As I said a short list. I'm sure the provider's template letters are more elegantly phrased and argued and perhaps have more and better arguments. However where your provider has not done this, consider the above and select which ones you think are most appropriate in making a representation.
I offer no guarantee that any of them will work. If they are successful, then they will create a DELAY only. You still have to deal with the liability and if you don't have the funds, talk to HMRC as soon as possible.
I'm interested in some aspects of this and would appreciate some feedback.
In particular, if you select say three items from the above and make a representation under just one of the grounds and that delays your APN, are you able to advance grounds 2 ONLY when you get the revised APN or are you OBLIGED to make all posisble representations at the same time?
If somebody wants to try that and let me know, I'd be grateful.
Finally, finally - the above is self explanatory and can I think be crafted individually.
There are firms out there who will do this sort of delaying tactic for a fee. The going rate appears to be 0.1% of the APN value per month of delay.
There are also moves to achieve a reduction in APN values. if I'm honest I think the scope for that for contractors is limited. HMRC has not much solid data so where would we begin in proving that the figure should be lower? However where this is possible, the going rate for firms to do this seems to be 1% of the reduction achieved.
Thus a £10k APN delayed 6 months, attracts a fee of 0.6% or £60. Probably have to add VAT to that.
Where a provider gives you a template letter for APN reps, use it because it might work and is free.
Where your provider is dust, feel free to select from the above and construct your own rep. This is also free.
Where you feel you want help, don't pay through the nose. The values above are where the market is.
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