PDA

View Full Version : APN representation grounds



webberg
1st May 2015, 11:58
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.

MercladUK
1st May 2015, 12:25
Hi all

I want to challenge my APN's on value.

Does anyone have a template we can use, which stands a better chance of not being discarded by HMRC?

This way if we all use a legitimate template its another headache for HMRC as they will have to respond

webberg
1st May 2015, 12:34
Hi all

I want to challenge my APN's on value.

Does anyone have a template we can use, which stands a better chance of not being discarded by HMRC?

This way if we all use a legitimate template its another headache for HMRC as they will have to respond

With respect, I think that a template rep will lead to a template response.

Better to have the same question asked in 50 different ways?

There is no prescribed means or format for a rep. It can anything from a formal letter to an email. I think just a phone call or meeting is not enough though.

MercladUK
1st May 2015, 13:20
Good point.

Letter it is then

DotasScandal
1st May 2015, 14:35
There is no prescribed means or format for a rep. It can anything from a formal letter to an email. I think just a phone call or meeting is not enough though.

Snail mail always!

lastManStanding
1st May 2015, 16:42
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.



If an "enquiry" letter makes no mention of 9A TMA 1970, is it a correctly opened enquiry that fulfil the grounds for an APN to be issued?

I suppose it may depend on the precise wording of the letter?

webberg
1st May 2015, 17:05
If an "enquiry" letter makes no mention of 9A TMA 1970, is it a correctly opened enquiry that fulfil the grounds for an APN to be issued?

I suppose it may depend on the precise wording of the letter?

Yes. You may be subject to a "compliance check".

If you have any doubt, make the rep and ask HMRC to prove that a compliance check letter can be used to open an enquiry.

This is all about tying up HMRC resource to slow down subsequent APN's but more importantly to force them to the table.

jbryce
4th May 2015, 14:17
If I query my APN value, are HMRC obliged to make a reasonable effort to check it?
The numbers are wrong, but I also wonder if everyone appeals the APN value then HMRC will be very busy indeed......

webberg
4th May 2015, 17:29
If I query my APN value, are HMRC obliged to make a reasonable effort to check it?
The numbers are wrong, but I also wonder if everyone appeals the APN value then HMRC will be very busy indeed......

In my experience challenges on value alone get a short and sharp answer. No harm in trying but I think to be effective, you may have to support this with "real" numbers.

That carries a risk. If (eventually) one of the grounds of challenge to the substantive issues is that HMRC did not have sufficient information and as such acted outside its remit, does giving them data, harm that?

I don't want to say too much here but this is a theme that I am developing for BIG GROUP.

chr16v
4th May 2015, 20:58
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.


i have only ever had 2 letters from HMRC (apart from the settlement opportunity letters. Both letters are for consecative years 05/06 & 06/07 and the only ref on these letters do not include the characters: 9A TMA 1970.
they are something like:
912/COMP4/7XXXXXX81X/PRC(B)/XXX

How can i tell if the year is open for adjustment? Are these letters the enquiry notices you mention?
(the content of the letters look like a template as both years are worded exactly the same

"I am writing to tell you that i intend to enquire into this return. Each year we enquire into some tax returns to check they they are correct, or because we need further information to understand the figures.....bla bla bla".)

webberg
4th May 2015, 22:27
i have only ever had 2 letters from HMRC (apart from the settlement opportunity letters. Both letters are for consecative years 05/06 & 06/07 and the only ref on these letters do not include the characters: 9A TMA 1970.
they are something like:
912/COMP4/7XXXXXX81X/PRC(B)/XXX

How can i tell if the year is open for adjustment? Are these letters the enquiry notices you mention?
(the content of the letters look like a template as both years are worded exactly the same

"I am writing to tell you that i intend to enquire into this return. Each year we enquire into some tax returns to check they they are correct, or because we need further information to understand the figures.....bla bla bla".)

Looks like a compliance check = open.

PM them to me.

Underbase
4th May 2015, 23:05
What about, if I have seen two APN's that have the incorrect Penalty schedule (eg not the one in the legislation?) Surely this is a procedure problem and therefore can be represented against? At least forcing them to reissue?

neil99
5th May 2015, 06:51
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.

My accountant has written to my local tax office asking for copies of the letter sent :

"I am unsure which years HMRC may have issued section 9A TMA 1970 notices for and whether they remain unresolved. Please advise which years remain open and forward copies of the relevant notices."

(thanks webberg for the wording)

That was 6 weeks ago and no response. I've not had any of the above notices sent to me or my accountant since 2009 that I recall or have! I left the schemes in 2008.

So still waiting! Would 9A TMA 1970 notices go to my accountant as well as me ?

Do you see any advantage in asking HMRC for settlement calculations yet ?

BTW there are a few of us in this confusing situation where we need some hand holding and are not getting specific help from scheme providers on chasing up these matters.

I've exhanged a few messages with folks here and they've been saying 'find a tax advisor'. I've called the IPSE tax people and they suggested following up the settlement route. But I've been advised that the settlement office won't have specific proof of the 9A TMA 1970 notices being actually sent! So stuck in limbo until and if APNs land.

neil99
5th May 2015, 07:33
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.


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.

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.

Which firms are offering this ? A list would be really useful.

chr16v
5th May 2015, 10:11
My accountant has written to my local tax office asking for copies of the letter sent :

"I am unsure which years HMRC may have issued section 9A TMA 1970 notices for and whether they remain unresolved. Please advise which years remain open and forward copies of the relevant notices."

Do you see any advantage in asking HMRC for settlement calculations yet ?


I think there is no harm in requesting a calculation (i have) because one of the benefits is they will send copies of the inquiry letters (on file) they would have sent you and this will answer your question about which years...

neil99
5th May 2015, 10:44
I think there is no harm in requesting a calculation (i have) because one of the benefits is they will send copies of the inquiry letters (on file) they would have sent you and this will answer your question about which years...

Ahh. That's news to me. Did they send the copies to you ? Anyone else ?

chr16v
5th May 2015, 11:54
Ahh. That's news to me. Did they send the copies to you ? Anyone else ?

I asked for the settlement calculation over the phone to at least know what numbers they were talking about. Bundled with their postal reply they sent the enquiry letters relating to 05/06 & 06/07 which matched my 2 years using an EBT.

squirrel
5th May 2015, 12:00
they sent the enquiry letters relating to 05/06 & 06/07 which matched my 2 years using an EBT.

I'm sure you've been through this already but are they copies of letters that HMRC sent you back in 2008 / 2009 or are these letters you've never seen before but just happen to coincide with the dates they have conveniently found on your tax returns?

chr16v
5th May 2015, 12:11
I'm sure you've been through this already but are they copies of letters that HMRC sent you back in 2008 / 2009 or are these letters you've never seen before but just happen to coincide with the dates they have conveniently found on your tax returns?

Yes, they were copies of the only 2 letters i have ever had from HMRC relating to this fiasco. one for each of those years.
I have the origional letters locked away and HMRC did not attach anything else to the settlement calculation letter, so i had no surprises in terms of which years were under inquiry.

neil99
5th May 2015, 13:12
Yes, they were copies of the only 2 letters i have ever had from HMRC relating to this fiasco. one for each of those years.
I have the origional letters locked away and HMRC did not attach anything else to the settlement calculation letter, so i had no surprises in terms of which years were under inquiry.

I Called the settlement line about 2 months ago and asked for my calculations. Nothing has come through. I'll fill in the form they have and try it that way.

lastManStanding
5th May 2015, 13:19
I Called the settlement line about 2 months ago and asked for my calculations. Nothing has come through. I'll fill in the form they have and try it that way.

I sent the d03 form to hmrc in December 2014 and still have not had my calculations. I have chased them twice in the intervening period and each time I am told that they are being handled by a case officer who would contact me shortly.

So far, nothing......

slatt
5th May 2015, 13:22
I Called the settlement line about 2 months ago and asked for my calculations. Nothing has come through. I'll fill in the form they have and try it that way.

I would just keep waiting if I were you, two months is nothing to HMRC!

I asked for a calculation back in Oct 2014 and only got a reply about two weeks ago

Yes that's right, 6 months to give me two numbers!

And I bet they'll still be complaining about how we've been dragging our feet....

neil99
5th May 2015, 13:28
I would just keep waiting if I were you, two months is nothing to HMRC!

I asked for a calculation back in Oct 2014 and only got a reply about two weeks ago

Yes that's right, 6 months to give me two numbers!

And I bet they'll still be complaining about how we've been dragging our feet....

Did you get a copy of the 9A TMA 1970 notices - enquiry notices ?

webberg
5th May 2015, 14:10
What about, if I have seen two APN's that have the incorrect Penalty schedule (eg not the one in the legislation?) Surely this is a procedure problem and therefore can be represented against? At least forcing them to reissue?

I think the answer is "yes" but I'm not clear what you mean by "penalty schedule".

webberg
5th May 2015, 14:16
So still waiting! Would 9A TMA 1970 notices go to my accountant as well as me ?

Do you see any advantage in asking HMRC for settlement calculations yet ?

BTW there are a few of us in this confusing situation where we need some hand holding and are not getting specific help from scheme providers on chasing up these matters.

I've exhanged a few messages with folks here and they've been saying 'find a tax advisor'. I've called the IPSE tax people and they suggested following up the settlement route. But I've been advised that the settlement office won't have specific proof of the 9A TMA 1970 notices being actually sent! So stuck in limbo until and if APNs land.

1. Only if your accountant was your authorised adviser at the time of issue. Failure to copy to an adviser is not failure to deliver.

2. Asking for a calculation ties up resources, so do it. The APN teams and the settlement teams are separate so getting a calculation and spending time discussing it with possible APN repercussions ties up two teams

3. Most scheme providers are probably not obliged to help and are certainly not retained as your advisers. Take what you can but don't expect them to remain there.

4. IPSE are not tax advisers and you should treat their thoughts as opinion. Get an adviser. Google is your friend. If in doubt go to the CIOT website and find an adviser.

5. The HMRC teams on settlement should be able to check whether you have an open year or not. If they say they can't (or won't) you politely request an extension of time until your case officer confirms or denies the notices.

webberg
5th May 2015, 14:18
Which firms are offering this ? A list would be really useful.

These firms are competitors of mine and one of the reasons for publishing the first post here was to show that you don't really need them and their fees.

I will therefore decline to name names.

Underbase
6th May 2015, 08:50
I think the answer is "yes" but I'm not clear what you mean by "penalty schedule".

I know I am now arguing with them that they didn't include enough penalties however I am in the situation where I can actually pay, but would like to make sure they get thier own procedures correct and are somewhat held to account.

They have only outlined 2 sets of penalties, (also calling them surcharges) one for 28 days after the due date and one for 6 months. If I am correct and I am no expert this is from an old internal procedure for some other surcharges, but not the correct ones for an APN. Is this enough to make a representation to that effect?

webberg
6th May 2015, 10:27
I know I am now arguing with them that they didn't include enough penalties however I am in the situation where I can actually pay, but would like to make sure they get thier own procedures correct and are somewhat held to account.

They have only outlined 2 sets of penalties, (also calling them surcharges) one for 28 days after the due date and one for 6 months. If I am correct and I am no expert this is from an old internal procedure for some other surcharges, but not the correct ones for an APN. Is this enough to make a representation to that effect?

Unfortunately "no".

It seems that because the regime for penalties changed in April 2009, liabilities arising (via an APN) for periods prior to then carry a "surcharge". These are payable 28 days post non payment, 6 months and 12 months, each at 5%.

Periods after that carry a non payment penalty starting on the due date and then at 5 and 11 months, again at 5% each.

I confess that it's not clear to me at the moment if the above is correct and in particular I don't know why a liability falling after April 2009 should attract this treatment when the regime is based on assessment years. When I have a chance I will investigate further.

Underbase
6th May 2015, 11:21
Unfortunately "no".

It seems that because the regime for penalties changed in April 2009, liabilities arising (via an APN) for periods prior to then carry a "surcharge". These are payable 28 days post non payment, 6 months and 12 months, each at 5%.

Periods after that carry a non payment penalty starting on the due date and then at 5 and 11 months, again at 5% each.

I confess that it's not clear to me at the moment if the above is correct and in particular I don't know why a liability falling after April 2009 should attract this treatment when the regime is based on assessment years. When I have a chance I will investigate further.

Ahh, but what I am saying is they have left out the final 12 month 5% so there is only 2 "surcharges" not three mentioned.

webberg
6th May 2015, 16:52
Ahh, but what I am saying is they have left out the final 12 month 5% so there is only 2 "surcharges" not three mentioned.

I'll do some checking elsewhere.

Underbase
12th May 2015, 11:20
I am nearing the time I need to pay, so I was thinking of writing a letter saying that the penalties are incorrect, did anyone have any thoughts on this?

LandRover
12th May 2015, 13:03
I am nearing the time I need to pay, so I was thinking of writing a letter saying that the penalties are incorrect, did anyone have any thoughts on this?

Look back at post #25 and item 2.

Request a calculation of the APN demand if you think it's incorrect.

Underbase
13th May 2015, 07:40
Look back at post #25 and item 2.

Request a calculation of the APN demand if you think it's incorrect.

My point was for this that I thought the penalties procedure is incorrect then I could appeal it. I will probably just chance it anyway.

MercladUK
22nd May 2015, 07:48
Asking HMRC to evidence their discovery assessment.

What exactly does this mean?

webberg
22nd May 2015, 08:59
Asking HMRC to evidence their discovery assessment.

What exactly does this mean?

HMRC has to

a) tell you that a discovery assessment under the provisions of sec 29 TMA 1970 is to be issued. This is usually a letter and HMRC has to prove that it was posted.

b) they make an assessment. In days of yore this was a paper form with a liability. under SA it's likely to be a statement and a liability appearing for a particular year.

c) they have to give you the ability to appeal it. If you had an assessment and appealed it, you can see it on your HMRC account.

You need ALL of the above.

If HMRC stumble on (a) chances are they're now too late.

MrMaggieMay
28th May 2015, 15:45
May I ask for some advise on my particular situation. I have recieved two APNs recently for two consecutive tax years. I am going through the process of getting my tax returns but it would appear that HMRC have quoted an incorrect scheme provider reference. The scheme reference number seems to relate to a scheme I never had any involvement with. I was however involved with a similar scheme for those tax years.

What could I expect as a best/worst case outcome?

I am thinking;

Worst case - APN withdrawn, new amended APN recieved some time later?
Best case - APN withdrawn, ?

DonkeyRhubarb
28th May 2015, 16:24
May I ask for some advise on my particular situation. I have recieved two APNs recently for two consecutive tax years. I am going through the process of getting my tax returns but it would appear that HMRC have quoted an incorrect scheme provider reference. The scheme reference number seems to relate to a scheme I never had any involvement with. I was however involved with a similar scheme for those tax years.

What could I expect as a best/worst case outcome?

I am thinking;

Worst case - APN withdrawn, new amended APN recieved some time later?
Best case - APN withdrawn, ?

It wouldn't be the deGraaf DTA scheme would it? We've seen quite a few instances where the SRN on the APN doesn't match the one on the tax return.

The wording NTRT have provided our members to send to HMRC for "wrong scheme number" is:

Thank you for your letter dated <insert date> where you include an “Accelerated Payment Notice”. On checking the notice, I find that it refers to a scheme with the Scheme Reference Number <insert scheme reference number (SRN) from APN>.

I did not participate in a scheme with this reference number. As the APN does not comply with section 219(4)(b) of Finance Act 2014, I would be grateful if you could now withdraw it.

At the moment we don't know what effect this will have.

foobar
16th September 2015, 20:13
When you make the representation to HMRC that the figures are insane and if you do provide the actual loan figures - Surely HMRC are then obliged to reissue the APN with the correct figures?

This article suggests that only 1 in 8 demands are reduced??

APNs bring in £1bn for HMRC | Economia (http://economia.icaew.com/news/september-2015/apns-bring-in-1bn-for-hmrc)

webberg
17th September 2015, 15:22
When you make the representation to HMRC that the figures are insane and if you do provide the actual loan figures - Surely HMRC are then obliged to reissue the APN with the correct figures?

This article suggests that only 1 in 8 demands are reduced??

APNs bring in £1bn for HMRC | Economia (http://economia.icaew.com/news/september-2015/apns-bring-in-1bn-for-hmrc)

The article is propaganda and based on data from 6 weeks ago and before a lot of contractor representations had made it through the system.

Are HMRC "obliged" to reduce the APN? No. If their best knowledge and belief is that their figure is correct (even if it is based on a multiple of salary) then they are not required to reduce it.

Remember you are not required to supply "better" information, rather HMRC is required to defend their number.

topgazza
18th September 2015, 21:28
And I assume they would have to produce facts, such as amount of loan received, PAYE already taken into account and not just "their belief " ? They surely are obliged to reduce it if counter figures are produced such as bank statements etc showing the liability is less ?

The calculation will need to show total amount of "income", less tax free amount for that year and then banding of amounts for taxation 10%, 20% 45% etc ?

webberg
19th September 2015, 09:31
And I assume they would have to produce facts, such as amount of loan received, PAYE already taken into account and not just "their belief " ? They surely are obliged to reduce it if counter figures are produced such as bank statements etc showing the liability is less ?

The calculation will need to show total amount of "income", less tax free amount for that year and then banding of amounts for taxation 10%, 20% 45% etc ?

Most APN's come with a comprehensive calculation of how the tax has been worked out but is less forthcoming about how the loan has been calculated. A lot of them are "salary x 4/5/6". Questionable.

topgazza
19th September 2015, 10:20
Being new to this and not wishing to go over ground I guess has been covered, I'll read more later, but the appeal if you like would be based on accuracy of the numbers and as I have read, not the APN itself. Again if the contractor can show via bank statements loans and salaries received for a more accurate calculation of PAYE ?

neil99
20th September 2015, 11:40
Being new to this and not wishing to go over ground I guess has been covered, I'll read more later, but the appeal if you like would be based on accuracy of the numbers and as I have read, not the APN itself. Again if the contractor can show via bank statements loans and salaries received for a more accurate calculation of PAYE ?

You are right. Perhaps take advantage of the Big Group APN checking service. They can help you with all this.

IF you have P11D and bank statements then I'd assume the APN people would accept these as a basis to calculate the correct charges?

topgazza
20th September 2015, 13:07
With the lack of any evidence from their side I would hope they would accept bank statements in lieu of any payslips or P60. The only evidence of any loan payments after all are bank statements if their is no P11D/P60 which they should have copies of anyway. If they can't find them at least bank statements are better than guessing. I guess most people will at least be able to demonstrate regular and consistent payments into their bank of both salary and any loan payments which would demonstrate that. I have only a couple of P11D and P60s from recent years and I would think thats the same for most. I normally keep everything but after 4 years or so things get lost which is not unreasonable.

be interesting to see if anyone has offered bank statements and detailed spreadsheets showing what they have received.

Wibble1
3rd December 2015, 09:15
http://forums.contractoruk.com/hmrc-scheme-enquiries/106146-apn-representation-grounds.html


None of them have been proven to be effective or to cause HMRC to withdraw a notice.

Since writing this are you aware of any success from this approach taken by individuals?

Also, I'm sure I read in another post that WTT had been having some success resulting in some APN's being withdrawn and I'm guessing they will be on technicality grounds. I'd be interested to know which schemes you've had success with and the reason for the withdrawal.

I'm looking to make representation against APN's received whilst using Edge.

Wibble1
3rd December 2015, 09:34
http://forums.contractoruk.com/hmrc-scheme-enquiries/106146-apn-representation-grounds.html



Since writing this are you aware of any success from this approach taken by individuals?

Also, I'm sure I read in another post that WTT had been having some success resulting in some APN's being withdrawn and I'm guessing they will be on technicality grounds. I'd be interested to know which schemes you've had success with and the reason for the withdrawal.

I'm looking to make representation against APN's received whilst using Edge.

Actually, it was not on a post here that I saw a statement about success resulting in some APN's being removed, it was on the WTT website where it states...

"To date we have achieved a number of APN withdrawals and many reductions. For further information or to speak to one of the team please contact us here."

webberg
3rd December 2015, 10:15
Actually, it was not on a post here that I saw a statement about success resulting in some APN's being removed, it was on the WTT website where it states...

"To date we have achieved a number of APN withdrawals and many reductions. For further information or to speak to one of the team please contact us here."

Which is true.

Reasons vary from personal circumstances to incompetent administration.

We have also put down markers to challenge "discovery" and we would expect more success there in due course.

Frustrating the will of Parliament is not what we're doing. The legal basis of the APN regime is enshrined in law and the JR's running seem to be more about the competence of HMRC to act as judge, jury and executioner of the terms. I'm not a lawyer and have no opinion as to the merits or otherwise of that argument.

We base our strategy on the practical rather than the theoretical.

We can and do achieve significant delays in payment dates (3 to 6 months +) and in agreeing instalment plans. We have had some APN's withdrawn as above.

I understand that Edge has a JR running already but you may now be too late to join that. (I'm sure other Edge users can confirm/deny that).

Most Edge APN's for periods up to 2010/11 have been issued now and are beyond their 90 day representation period. Check carefully those time limits before paying any fees.

Wibble1
3rd December 2015, 10:27
Which is true.

Reasons vary from personal circumstances to incompetent administration.

We have also put down markers to challenge "discovery" and we would expect more success there in due course.

Frustrating the will of Parliament is not what we're doing. The legal basis of the APN regime is enshrined in law and the JR's running seem to be more about the competence of HMRC to act as judge, jury and executioner of the terms. I'm not a lawyer and have no opinion as to the merits or otherwise of that argument.

We base our strategy on the practical rather than the theoretical.

We can and do achieve significant delays in payment dates (3 to 6 months +) and in agreeing instalment plans. We have had some APN's withdrawn as above.

I understand that Edge has a JR running already but you may now be too late to join that. (I'm sure other Edge users can confirm/deny that).

Most Edge APN's for periods up to 2010/11 have been issued now and are beyond their 90 day representation period. Check carefully those time limits before paying any fees.

Fortunately my APN's for the period ending 2010/11 were never received by me and so HMRC agreed to reissue with a revised 90 day deadline which is up just before xmas. Hence me exploring options for representation with a view to getting at least another 30 days.

It would be great it I was able to get details of the Edge JR in progress which I have to admit I did not know about even though I've been following this space closely for a couple of years.

Whilst I've still to join the Big Group before the end of the year, I'm wondering if it's too late for WTT to review my 3 APN's now with a view to delaying payment dates with HMRC or weather I should use some of the reasons above and pursue myself.

I site firmly within the camp of I will not pay. What I did was not wrong and was done within the rules at the time. When these rules around EBT changed post 2010 I stopped using EBTs. As far as I'm concerned that should be that. HMRC should see that as a victory (stopping people using them) but not punish someone for driving 30 mph when the speed limit was still 30 mph.

webberg
3rd December 2015, 11:07
Fortunately my APN's for the period ending 2010/11 were never received by me and so HMRC agreed to reissue with a revised 90 day deadline which is up just before xmas. Hence me exploring options for representation with a view to getting at least another 30 days.

It would be great it I was able to get details of the Edge JR in progress which I have to admit I did not know about even though I've been following this space closely for a couple of years.

Whilst I've still to join the Big Group before the end of the year, I'm wondering if it's too late for WTT to review my 3 APN's now with a view to delaying payment dates with HMRC or weather I should use some of the reasons above and pursue myself.

I site firmly within the camp of I will not pay. What I did was not wrong and was done within the rules at the time. When these rules around EBT changed post 2010 I stopped using EBTs. As far as I'm concerned that should be that. HMRC should see that as a victory (stopping people using them) but not punish someone for driving 30 mph when the speed limit was still 30 mph.

Well, my view is obviously BIASED in favour of getting opinion/help from a professional and preferably WTT. You should therefore bear that in mind when reading the following.

Making a valid representation gains you a delay of more than 30 days. You wait until say a week before they are due, make a rep and HMRC will write back to say that they will consider it by xx/xxx/2016. Once they send you the result of that consideration you have 30 days from that date to pay.

the delay might be therefore several months.

As to not paying on principle, be careful.

Non payment will result in a penalty which can climb to 15% of the APN. It is common sense that if the APN is eventually reduced to NIL, then 15% of NIL = NIL. However the rules may not be interpreted like that. It may be that if there is even a small liability eventually agreed arising from the arrangement, the penalty is still based on the original APN value.

This is unclear. HMRC don't know the answer. I'd like to think that the answer is that a penalty will be based on actual final value, but I cannot find a definitive logic that says that.

DMB (HMRC's collection arm) appear to be moving slowly and softly in terms of collecting unpaid APN's. Their usual process is pretty much standard with written demands, telephone calls, personal visits, reports on ability to pay etc, Court action, possible bankruptcy action. To date I've not seen any actions going to Court. Perhaps we're too early in the process?

We have had some anecdotal evidence that DMB is reluctant to press ahead in Court with a disputed amount. I have seen NOTHING official on this and cannot therefore confirm that is correct.

If you choose not to pay however, be aware of the potential cost to your stress levels, your family's stress levels, your credit rating and if you work in financial services, potentially your ability to continue.

Wibble1
3rd December 2015, 14:30
Well, my view is obviously BIASED in favour of getting opinion/help from a professional and preferably WTT. You should therefore bear that in mind when reading the following.

Thanks webberg. Your advice as always is sensible and well grounded and appreciated.
Question. I'd like to contact WTT to discuss, if I did who would I be speaking with. I've followed you on this forum for sometime and it would be good if it was you.

LandRover
3rd December 2015, 19:33
Thanks webberg. Your advice as always is sensible and well grounded and appreciated.
Question. I'd like to contact WTT to discuss, if I did who would I be speaking with. I've followed you on this forum for sometime and it would be good if it was you.

Join BIG GROUP WTT Big Group (http://www.wttbiggroup.co.uk/)

or WTT Consulting | Tax Enquiry Specialists | London (http://www.wttconsulting.co.uk/#!big-group/ci09)

dmuk
13th February 2017, 11:02
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.

..

Has anyone has success with making representation? What was the result?
What happens if you do not receive a response / revised settlement date within the 90 days? Do you pay to avoid penalties or don't pay? How is a revised payment date communicated?

I am preparing a representation based on a few points but primarily value. The calculation has been based on multiplying a figure supplied on a historical SA. :bang:

"The adjustment figure has been arrived by multiplying the PAYE figure from <XYZ> as per the SA return for 20XX, which is £XXX (£XXX x X = £YYY). An amount of £ZZZ has been removed from the calculation so the final adjustment figure reflects the cash equivalent figure of beneficial loans received as declared in your 20XX tax return."

DotasScandal
13th February 2017, 11:08
Has anyone has success with making representation? What was the result?
What happens if you do not receive a response / revised settlement date within the 90 days? Do you pay to avoid penalties or don't pay? How is a revised payment date communicated?


That's not how it works. Did you eve read what you've been sent?
You make a representation, and your APN is put on hold while they consider it. It might take anything from 1 week to 6 months.
Following representation, either HMRC withdraws your APN or corrects the value. If the latter, you'll be given an updated deadline to pay.
You don't pay anything while your representation is being considered.

DotasScandal
13th February 2017, 11:10
I am preparing a representation based on a few points but primarily value. The calculation has been based on multiplying a figure supplied on a historical SA. :bang:

You're new at this, it seems?
Just so you know, this is standard procedure from HMRC to "maximize the amount of tax collected". They've been doing this for two years.

dmuk
13th February 2017, 11:42
That's not how it works. Did you eve read what you've been sent?
You make a representation, and your APN is put on hold while they consider it. It might take anything from 1 week to 6 months.
Following representation, either HMRC withdraws your APN or corrects the value. If the latter, you'll be given an updated deadline to pay.
You don't pay anything while your representation is being considered.

Thanks for the clarity. I was only asking in the context that it appears from others that HMRC do not acknowledge written correspondence for months or at all.


You're new at this, it seems?
Just so you know, this is standard procedure from HMRC to "maximize the amount of tax collected". They've been doing this for two years.

I know I am not alone in that method of calculation. Was just venting in disbelief they were still applying that approach in 2017.

zal
14th February 2017, 09:03
I was wondering if someone can help.

I'll be getting a LoR from my provider which I'll send to HMRC. Does that constitute a 'Corrective Action'?

What do I do with the 3 part Form:
Part1: first step-agreeing in writing to relinquish the denied advantage
Part2: second step - notification
Part3: Name& address

I'm confused to say the least. I've no idea what to put for Parts1 & 2.

DotasScandal
14th February 2017, 10:06
I was wondering if someone can help.

I'll be getting a LoR from my provider which I'll send to HMRC. Does that constitute a 'Corrective Action'?

What do I do with the 3 part Form:
Part1: first step-agreeing in writing to relinquish the denied advantage
Part2: second step - notification
Part3: Name& address

I'm confused to say the least. I've no idea what to put for Parts1 & 2.

A represenation is not "corrective action".
We don't even know who your provider is...Care to give a bit of context??
And since your provider has provided the LoR, why don't you ask them?

zal
14th February 2017, 13:12
A represenation is not "corrective action".
We don't even know who your provider is...Care to give a bit of context??
And since your provider has provided the LoR, why don't you ask them?

Sorry about that.

It's Montpelier.
I'll get my LoR this Friday.

I'll ask them as well but thought to get the thoughts from here. Thanks.

dmuk
16th February 2017, 16:21
Some more questions on this thread - apologies if this goes over old ground:

1) Open year challenge - Has anyone had HMRC provide hard evidence of an enquiry notice? Or had HMRC withdraw the APN based on their lack of evidence?

2) DOTAS challenge - Is arguing you had no consent or consultation from you provider going to work in many cases?

3) Value challenge - The APN states if you disagree with the calculations you need to provide a correct figure with an explanation. Someone wrote that the onus is on HMRC to defend their number.
What is deemed adequate evidence to challenge value?

4) The 90 day window - I asked this before but maybe wasn't clear enough in the question. Does HMRC confirm receipt of your representation in writing?
If I sent representation on day 80 and hear nothing from HMRC by day 90 - must I pay my APN amount immediately?

webberg
17th February 2017, 17:49
Some more questions on this thread - apologies if this goes over old ground:

1) Open year challenge - Has anyone had HMRC provide hard evidence of an enquiry notice? Or had HMRC withdraw the APN based on their lack of evidence?

2) DOTAS challenge - Is arguing you had no consent or consultation from you provider going to work in many cases?

3) Value challenge - The APN states if you disagree with the calculations you need to provide a correct figure with an explanation. Someone wrote that the onus is on HMRC to defend their number.
What is deemed adequate evidence to challenge value?

4) The 90 day window - I asked this before but maybe wasn't clear enough in the question. Does HMRC confirm receipt of your representation in writing?
If I sent representation on day 80 and hear nothing from HMRC by day 90 - must I pay my APN amount immediately?

1. HMRC withdrew APN's because of lack of notifiability of a scheme. If you have no evidence of an open year ask HMRC to prove their point.

2. No

3. Bank statement, loan statement, P11D value (careful with that one, many are hopelessly inaccurate).

4. No and no. As long as the rep is in then you pay nothing until you hear from HMRC. Do not though try and be clever and send the rep to an address other than the one that issued the APN.

dmuk
30th March 2017, 04:52
Thanks again. Very helpful.

Another few points I have been thinking about. I know these sound pretty desperate but thought I would ask.

1) Leverage success of associations?

For example you utilised X EBT. A fight fund or association reached an agreement or deferral or similar. You are not a member of the association. Can you leverage this at all?

2) Non resident?

I know the Mutual Assistance Recovery Directive (MARD) exists but I don't know if this has been used effectively or widely?

If you leave the UK indefinitely or for an extended period of time - would this be successful in deferring or avoiding the liability?

Is being a non-resident enough? What happens if you have minor/significant assets in the UK but are non-resident?

piebaps
30th March 2017, 09:34
Only a partial replay dmuk - sorry

MARD is a European Directive. Put Mutual Assistance Recovery Directive into good old google and the third hit is an article from Tax Journal, this is quite informative.

Essentially a report is due to go to the EU Commission in January 2018 setting out the details of amounts recovered. Until then we have no way of knowing whether its working and if so which countries are doing best. Of course outside MARD, there may be bilateral treaties between the UK and non-EU countries so depending on whereabouts you are in the world, you could still be caught.

HMRC's Tax Treaties page lists all their arrangements, so you probably need to do a bit more digging.