In Fastklean Limited v HMRC  TC2004, an employer who filed Employment Intermediaries Returns to please HMRC was successful in claiming reasonable excuse for late filing. Tax counsel had advised that no returns were due.
- The Appellant provides cleaning services to corporate clients and operated a PAYE scheme and registered as a contractor after taking professional tax advice.
- HMRC conducted a check of the employer and Construction Industry Scheme records and discussed its PAYE obligations.
- The Appellant subsequently sought legal advice and was informed that the PAYE provisions were inapplicable, given the manner in which their cleaners provide services, namely that the cleaners were not subject to, or subject to the right of, Supervision, Direction or Control (SDC) by any person.
- HMRC then completed their check and concluded that the Appellant’s obligation to provide returns applied to all supplied workers by virtue of the relevant Employment Intermediaries legislation.
- Despite Counsel’s advice that returns were not required, and in order to comply with HMRC’s request to bring their tax affairs in order, the Appellant submitted the returns for the seven periods in question.
- HMRC then imposed late filing penalties of £5,750 in accordance with Section 98 TMA 1970.
- The taxpayer appealed.
The First Tier Tribunal (FTT) decided that there were two issues in this case:
- Whether or not the Appellant is liable to the penalties imposed by HMRC under section 98(1) TMA 1970 for failure to deliver returns within the statutory time limits?
- Whether or not the Appellant had a reasonable excuse under section 118(2) TMA 1970 for the failure to deliver timely returns?
The FTT did not consider that it had been provided with sufficient tangible evidence to satisfy itself on the issues of supervision, direction or control. As a result, it could not decide whether a filing exemption applied in respect of the intermediaries returns.
In terms of reasonable excuse, the FTT found that the taxpayer was entitled to rely on the tax advice it was given that returns were not required as this was later endorsed by legal advice. That was a reasonable thing to do.
The appeal was allowed.
How daft was that? The UK's PAYE rules are so difficult to interpret that no one in the case could agree whether Employment intermediaries return were actually required.
Agency Workers: At a glance
Freeview summary of the rules
Agency Workers: Employment Intermediaries
A handy summary of the rules and filing requirements for agencies and other intermediaries, including a PAYE reporting tool and details of filing requirements.
Appeals: Grounds for appeal toolkit
What grounds are there to appeal a tax penalty? How can you word a tax appeal? Can you appeal HMRC errors? What is a reasonable excuse?
Grounds for appeal: Taxpayer reasonable excuse
What is considered to be a 'reasonable excuse' when a taxpayer makes an appeal?
Supervision, direction or control (SDC)
There is no legal definition of the meaning of SDC