Tax – when the irresistible force meets the immoveable object
Tax – when the irresistible force meets the immoveable object
(or how to succeed before the First Tier Tax Tribunal)
You have been involved in a protracted struggle with HMRC for what seems like an age. You are racking up costs with your accountant and little or no progress seems to have been made. You don’t want to give in because you feel that you are in the right but there seems nowhere left to go.
Why not give the First Tier Tax Tribunal a try? It has a number of advantages for the taxpayer:
• It is free;
• Costs are rarely awarded except in exceptional cases;
• The tribunal is independent;
• It is an informal process and barrister representation is not required;
• The Tribunal approaches matters in a common sense way;
• Any findings of fact by the Tribunal are normally binding so the only avenue of appeal from the Tribunal is on points of law (if there are any);
• It may provide finality quicker than continuing with correspondence and negotiation.
However, those who are not familiar with the process will be at a significant disadvantage when faced with an HMRC presenting officer who deals with the Tribunals on a regular basis. It is important to understand which lines of attack are likely to succeed and, just as importantly, which ones will not.
Here are some of the approaches which will fall on stony ground:
• It is unfair;
• This is my first mistake;
• I didn’t know I had to ……;
• I was only a few days late;
• My accountant/bookkeeper let me down;
• I paid late because I am having cashflow problems at the moment;
• I can’t afford to pay a penalty of this size;
• I promise it won’t happen again;
• We have put processes in place to ensure it won’t re-occur;
• I thought I didn’t need to send it because it was a nil return;
• HMRC have not replied to correspondence and have been generally inefficient;
• I thought I’d submitted it successfully on-line;
• I didn’t know internet payments take 3 days to clear.
Approaches which may well work are too diverse and variable to include in a short article like this but prerequisites for success are:
• Understanding the tax law concerned;
• Assembling a body of supporting evidence;
• Concentrating on the most promising lines of defence;
• Spotting weaknesses in HMRC’s case;
• Presenting the case clearly, logically and forcefully.
Many cases before Tribunals deal with the concept of reasonable excuse. However this is not “reasonable” in the common sense meaning of the word. Instead it is a legal construct which has evolved following a number of decided cases and can be a deceptively tricky area.
So my advice, as an accountant with extensive involvement with the Tribunal system over a number of years, is to bear in mind the possibility of opting for the Tribunal approach. But careful preparation and a professional approach are vital.
How much should you pay?
If you pay between £30 and £500 per month into a pension from age 21 to age 65 and increase those monthly contributions by 5% compound each year, the table below shows the sort of pension you might expect if growth in real terms (i.e. stripping out the effect of inflation) is either 2 or 3% and the rate of tax relief the payments attract is between 20% and 50%:
| With 20% tax relief | With 40% tax relief | With 50% tax relief | ||||
| 2% real | 3% real | 2% real | 3% real | 2% real | 3% real | |
| Pay pcm | growth | growth | growth | growth | growth | growth |
| 30 | 4910 | 5854 | 6547 | 7805 | 7857 | 9366 |
| 50 | 8184 | 9756 | 10912 | 13009 | 13094 | 15610 |
| 100 | 16368 | 19513 | 21824 | 26017 | 26189 | 31220 |
| 250 | 40920 | 48782 | 54560 | 65043 | 65472 | 78051 |
| 500 | 81839 | 97564 | 109119 | 130085 | 130943 | 156102 |
In reality, you will probably pay nothing until you have to and/or start panicking and the level of contributions is likely to go up in a non-linear way as promotions happen, mortgages are paid off and kids leave home. Rates of tax relief will also vary. But you can probably see that, to get a £30,000 pension at age 65, you will probably need to contribute an average over your working life of about £150 per month (i.e. the amount actually paid out of the bank) assuming you get a mixture of 20/40% relief on the contributions and that annuity rates stay at around current levels.
Who should you pay it to?
Advice on pension providers is tightly regulated so it is not possible to go into specifics. But it is true to say that the two main factors which will affect the value of your pension pot at retirement are charges applied to the fund and investment performance. Sometimes there is a link between the two but not always.
There is little chance that you will optimise your fund by personally selecting funds (unless you support the Random Walk theory) which postulates that a blindfolded monkey throwing darts at the FT financial pages would probably do as well as expert selection. Interestingly, this experiment is currently being replicated by the owners of Sophie the Shetland sheepdog in the US – tastefully called “Sophie’s choice”. We watch with interest.
For those of a conventional disposition, a good financial adviser is probably the way to go (unless you are in a large group scheme). Factors you should consider when selecting an adviser are:
- Have they been recommended by someone whose opinion you trust?
- How are they remunerated and is it clear what the costs will be?
- Do they seem thorough and efficient?
- Are they independent?
- Have they explained everything to your satisfaction including policy charges?
- How will they monitor your scheme after set up?
- What qualifications and experience do they have?
Alternatives to pensions
Some people, having had bad experience with advisers and/or investment returns, have been turned off pensions. This is a shame as a pension should in theory provide a better net return than an equivalent investment. This is because of the following:
- You get tax relief at your marginal rate on contributions made;
- The pension fund itself is not liable to taxation;
- You can take 25% of the fund out tax free when you reach retirement.
The main drawback is that you normally cannot get access to the whole fund and have to convert 75% of it into some sort of regular payment for life.
Other investments can sit easily alongside pension funding and a spread of risk is good. But most savings portfolios should contain a pensions element for the reasons set out above.
The principle is easy – the practice a little more difficult. As with any other choice, you need to establish some criteria and then apply each of those to the options available.
Some criteria may be deal-breakers i.e. if the criterion is not satisfied it’s a “No”. Others may be on a scale of 1-10 i.e. to what extent is the criterion satisfied? Others may be binary factors but not deal-breakers. Some may be more important than others. Some may be factors rather than criteria i.e. you might just want to hear the response to consider what you think of it.
Here is my suggestion for honing down the options. I have assumed that you are either a potential personal tax or small business client requiring a reasonable range of expertise:
Deal-breaking factors
Exclude those who:
- Do not have a recognised qualification (see my earlier blog on choosing accountants and hotels for details);
- Cannot demonstrate familiarity with any specialist factors which your business may have;
- Cannot deal with the range of services you require;
- Are one of the “Big 4” (they will be far too expensive);
Important factors
- Is there a partner or manager who is a Chartered Tax Adviser?
- Will you have a person who will be your primary point of contact?
- Have you met that person?
- Did you get on with them?
- Are their technical staff qualified (see above) or working towards a professional qualification?
- Do they have a proper website?
Things to consider
- How local are they?
- Have you read a draft “Terms of Business” letter?
- Do they charge extra for any ad hoc queries raised by letter, email or phone?
- Have you received a detailed and fully costed quotation?
- How much was it?
- Do they outsource any of their work e.g. to India?
- Do their offices appear smart and well-staffed?
- Have they been recommended by someone whose opinion you respect?
- How advanced are they from an IT point of view?
- How well was the person you met able to explain the services they would perform and clarify any tax and accounting issues which are likely to be relevant to you?
- How well did they handle any questions you had? Try asking them to explain things like:
- What sort of business entity you should use and why?
- How does VAT work?
- How should you take money out of the business?
- How do Working Tax Credits interact with business profits?
- How do you determine whether someone can be treated as self-employed rather than employed?
- Can you apportion income legally between working and non-working spouses or partners?
- Were they willing to provide references from existing clients of a similar size or nature?
- To what extent did you feel that they would be pro-active rather than re-active?
- If they are in business on their own, what would happen if they were ill or on holiday? Also, were you satisfied that they could handle the work and that they were not too busy with other client commitments?
- How efficient do you think they would be?
- How many times did they say “that’s not a problem” when you queried something?
Decision
I suggest you exclude any candidates who do not pass the deal-breaker test. I would also think seriously about any candidates who did not pass the important factors test. Following that, maybe draw up a table for the things to consider, rank them in order of importance to you and analyse the extent to which each candidate satisfies the criteria. Then apply a bit of “gut feel” and off you go.