Enough is enough! – making a complaint to HMRC
Last month I submitted two complaints to HMRC. I did so because in both cases I had reached the end of my tether with the Inspector and I didn’t think that either of the Inspectors were being objective in the way they were working their respective cases.
As I thought about what my next blog article was going to be, I started thinking about the cases and what had led up to the decision to make formal complaints. On checking back over the correspondence, I was struck by the amount of thought and effort I had given to each case over the last 12 months, and how much time had been spent dealing with HMRC when the Inspector’s approach had become more unreasonable. I will comment on both of the complaint cases in more detail in my next blog when the results of the complaints are known – but the main point of this blog is to consider the tactical approach of when to complain and how best to do it. Generally speaking, there are three issues to consider:
- Be clear about what you are complaining about
This might sound a straightforward thing to say, but it is worth taking a moment to consider what has happened to make you want to complain. As much as no-one likes receiving a notice of enquiry of a demand for tax that is due, this is itself is not grounds for complaint. It is also quite common for HMRC officers to disagree with explanations or technical arguments put forward by the taxpayer or their agent.
Unless the officer’s approach is unreasonable then these are also not grounds for complaint. Generally speaking, complaints can be made when the Inspector:
- Is requesting information or records that it he is not entitled to
- Is asking for information or records that are not relevant to determining a taxpayer or company’s tax position
- Is acting unreasonably in asking for excessive records or information or not allowing enough time for these to be supplied
- Is not giving due consideration to information already supplied
- Is working the case outside of legal guidelines or is not being reasonable and proportionate
- Is keeping a case open unnecessarily
Obviously, a complaint can be made if the officer is rude or patronising however, I have to say that I have never really found this to be the case with the HMRC officers that I have dealt with. Complaints can also be made about excessive delays on the part of HMRC.
- Consider the timing of your complaint
Most HMRC officers will listen to reason, and if a request for information is incorrect or excessive then it is a good idea to engage with the officer and explain why their request is felt to be unreasonable. When I worked as an Inspector for HMRC I will freely admit that I did not give as much thought as I should have done to consider the time, effort and costs involved in providing the information I wanted to see. The same can be said of many HMRC officers who through no fault of their own have limited experience of working in private industry.
Quite often, an explanation about the scale of an information request will result in HMRC accepting records or information over a sample period rather than asking to see records over a one-year period, or even longer in the case of PAYE and VAT compliance reviews. In my opinion you should never consider making a complaint at such an early stage in the enquiry for reasons that I will talk about shortly. I would also advise against making a complaint until you can demonstrate that all reasonable avenues of discussion have been exhausted.
At this point I am also reminded to refer to a cricket match I played in many years ago when I had been brought back to bowl a second spell. The batsmen had put on a partnership of well over 50 and were well on the way to winning the game. The captain told me to “crank it up” and break the partnership. The first three balls of my spell had struck the batsman on the pads and I had appealed loud and long on each occasion. In truth they were not out decisions although close enough to warrant an appeal. The last ball of my over had the batsman bang to rights as the ball kept low and struck him in front of middle stump. I appealed with joy in my heart, only to see the umpire turn and walk away. I asked the umpire why it wasn’t out and I remember him pausing and looking a little embarrassed. Missing leg stump he said with no conviction whatsoever. He knew he’d made a howler of a decision. After the game one of our wiser older players told me that I’d blown it with the three appeals at the start of the over. “He wasn’t interested after that” he told me.
The same can be said of complaints. Although HMRC have a policy of reviewing and responding to complaints, the most impact can be achieved by complaining at the right time and showing that you have made attempts to be reasonable. It is only natural to expect a HMRC officer looking at the third complaint in an enquiry case to be less sympathetic than reviewing the first.
- What do you want as the outcome?
Again this sounds like an obvious thing to say but what is it that you want to happen. Do you want the officer dealing with the case to start acting more reasonably or do you want them made aware of a particular behaviour that you feel is offensive? Do you feel that there is a personality cash that warrants the case being reassigned to a new officer, or are you just venting?
In my opinion venting is a pointless reason to complain. You are likely to receive a letter from HMRC that acknowledges your concerns and then asks you to carry on as you did before. I would also say that changing officers is not a guaranteed winner either as I’ve seen cases go both ways. The newly appointed officer may want to settle the enquiry at all costs because he doesn’t want any further grief, but equally I’ve seen the new officer come along and be just as tough with a “how dare you complain about my mate” attitude. My personal approach is to wait to complain until such a stage as it can reasonably be suggested that the case is closed.
Disputes early in the enquiry that can’t be resolved by discussion can be taken forward by asking the Inspector to issue information notices which can then be appealed and independently reviewed by an officer not connected with the case. If still unresolved then the case can be taken to the tax tribunal for a ruling. Taking the case to a tribunal does not constitute a complaint and I have gone down this route on quite a few cases.
Sometimes as an agent, you just get a feel for a HMRC officer you know is going to be awkward and unreasonable, and in cases like that, it is worth saving the complaint for later in the enquiry when grounds can be made to have the case closed.
By Neill Staff
Tax Partner and Tax Investigation Specialist
If you need advice regarding responding to a HMRC enquiry, contact our Tax Partner at email@example.com or call him on 020 3146 1605.
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