How to survive the enforcement powers

Although some of the penalties for VAT infringements have been less severe in recent years, there is still an alarming array of enforcement powers to trap the unwary. By being aware of the problem areas and planning carefully, it should be possible to avoid becoming an unwitting victim of the system.

Late registration

You must notify HMRC of your liability to register for VAT if your taxable turnover has exceeded £85,000 in the last twelve months, or if you believe it will exceed £85,000 in the next thirty days alone (ignoring past turnover).

Where notification is late a failure to notify penalty will be charged unless there is a reasonable excuse for the delay. The penalty is a percentage of the VAT unpaid. It will be:

• 5% if you registered no more than nine months late
• 10% if you registered between nine and 18 months late
• 15% if you registered more than 18 months late.

Each of the above penalties can be mitigated at HMRC's discretion, with the levels of mitigation depending on the circumstances of each case.

However, if the penalty is chargeable at 30% it will be cancelled if the trader notifies HMRC within 12 months after his required registration date.

After registration

Every VAT registered business needs to ensure that it is organised to deal with VAT correctly and on time:

• Is there someone in your business who controls VAT accounting and ensures that new products, services etc. are properly dealt with for VAT purposes?
• Do your business systems ensure that all output tax and input tax are properly recorded?
• Are systems in force to ensure that proper evidence is obtained to support VAT input tax claims?
• Where VAT is not charged on supplies made, is this correct in law and is proper evidence retained?
• Are there systems in force to ensure that non-deductible input tax is not reclaimed, e.g. most VAT on motor cars, business entertaining, or attributable to exempt supplies?
• Is VAT always considered before contracts are made?

Default surcharge

A default occurs if HMRC has not received a return or all of the VAT due on a return by the due date. Now that all VAT-registered businesses must file returns and pay any VAT due online, the due date is 7 days after the end of the month following the VAT period end. For example, if the VAT return covered the quarter to 31 March, the due date would be 7 May.

Consequence of default

You receive a warning after the first default - the Surcharge Liability Notice (SLN). Do not ignore this notice. If you fail to pay the VAT due by the due date for any returns due within the next year, the surcharge will be 2% of the outstanding tax. The surcharge increases to 5% for the next default, and then by 5% increments to a maximum of 15%. Lower rate (2% and 5%) surcharge assessments will not be issued for less than £400. At rates of 10% and 15% the surcharge liability becomes subject to a minimum charge of £30.

Each default, whether it is late submission of the return or late payment, extends the surcharge liability period, but only late payment incurs a surcharge. You only return to the beginning of the surcharge cycle when you have submitted and paid a whole year's worth of VAT returns on time since the previous default.

Special arrangements for small businesses

Businesses with qualifying turnover up to £150,000 will be sent a letter offering help and support following the first default rather than a SLN. This arrangement is intended to allow extra time to sort out any short-term difficulties before formally entering the default surcharge system. Any further default within twelve months will result in the issue of a SLN.

Late payment penalties (but not late filing) will be avoided if the taxpayer has agreed a time to pay arrangement with HMRC.

Proposed repeal of the default surcharge system

It is understood that from a date yet to be decided the default surcharge is due to be replaced by a new system, which will penalise late payment of VAT and late-filing of returns separately. However, no commencement date has been announced for these changes which were legislated several years ago.

Disclosures of errors in previous returns

The manner of notification to the VAT office depends on the quantum of the error.

Cumulative net VAT errors of £10,000 or less discovered during a VAT period may be included in the VAT return for the next VAT period, as may net errors between £10,000 and £50,000, which do not exceed 1% of the Box 6 figure for the same VAT period. Net errors exceeding those limits must be notified separately by completing form VAT 652 or by writing to HMRC. Deliberate VAT understatements must always be notified on form 652.

Inaccuracy penalties

• The inaccuracy penalty, applies where there is an understatement of a VAT liability (or a false or inflated repayment claim), and
• The inaccuracy must be careless, deliberate or deliberate and concealed
• There is a further penalty if HMRC issues a VAT assessment which understates the tax due, and the taxpayer does not take reasonable steps to notify HMRC of the error within 30 days.

The penalty does not apply where the taxpayer has, in the view of HMRC, taken reasonable care in filing returns but makes an innocent mistake. Where it does apply, it is calculated as a percentage of 'potential lost revenue' (PLR) as follows:

• Lack of reasonable care errors – up to 30% of PLR
• Deliberate errors – between 20% and 70% of PLR
• Deliberate and concealed errors – between 30% and 100% of PLR

Where a penalty is due because of an under-assessment in the absence of a return, it is at 30% of PLR.

Reductions are available for unprompted disclosures, assistance given to HMRC and allowing full access to records, and some penalties for careless errors could be suspended on the condition that certain improvements are made, such as to record-keeping. The amount of the reduction is at the discretion of HMRC, but maximum reductions are as follows:

For unprompted disclosures:

• Careless errors - can be reduced from 30% to a minimum of 0%
• Deliberate errors - from 70% to 20%
• Deliberate and concealed errors - from 100% to 30%

For prompted disclosures:

• Careless errors - can be reduced from 30% to a minimum of 15%
• Deliberate errors - from 70% to 35%
• Deliberate and concealed errors - from 100% to 50%

Wrongdoing penalty

An additional penalty is also applicable to the unauthorised issue of VAT invoices, e.g. where a person not registered for VAT issues an invoice showing an amount purporting to be VAT. HMRC will be able to recover the amount shown as if it were VAT, and apply a penalty as follows:

• Not deliberate and unprompted – maximum penalty 30%, minimum 10%
• Not deliberate and prompted – maximum penalty 30%, minimum 20%
• Deliberate and unprompted – maximum penalty 70%, minimum 20%
• Deliberate and prompted – maximum penalty 70%, minimum 35%
• Deliberate, concealed and unprompted - maximum penalty 100%, minimum penalty 30%
  Deliberate, concealed and prompted - maximum penalty 100%, minimum penalty 50%

Retention of records

The period for retaining records is six years. There can be a fixed penalty of £500 for breaching this requirement or £250 for businesses in the first year of trading. A penalty of £3,000 can apply if records have been deliberately destroyed, which can be reduced to £1,500 if only some records are destroyed.

Breaches of regulations

The amount of the penalty varies with the type and frequency of the breach involved. The basic penalty is £5 per day while the breach continues. This is increased to £10 per day if there has been an earlier breach of the same regulation within the previous two years, and £15 per day if there has been more than one earlier breach.

In some cases, this basic daily penalty is increased to a daily percentage of the tax involved, if this is greater. The penalty is raised up to a maximum limit of 100 days for each period of failure and will be the greater of the sum of the daily penalties or £50.

Default interest

Interest on tax will arise in certain circumstances, including cases where:

• An assessment is made to recover extra tax for a period for which a return has already been made (this includes errors voluntarily disclosed) but not those corrected on a VAT return as an assessment will be necessary
• An invoice purporting to include VAT has been issued by a person not authorised to issue tax invoices
• A person has failed to render a VAT return for any period, and instead accepted a central assessment which is later found to be too low; or
• A voluntarily disclosure is submitted where the net error underdeclaration exceeds £10,000 and 1% of the Box 6 figure for the relevant return.

Where an assessment covers a period exceeding three months, HMRC is required to break it down into return periods. This is necessary to establish the period for which interest is to be charged. Normally, interest accrues from the due date for submission of the return for the period concerned. However, the maximum period is three years, although interest will continue to run on assessments remaining unpaid after thirty days from the date of issue.

The rate of interest is set by the Treasury and is broadly in line with commercial rates of interest.

Appeals

Appeals against assessments, penalties and the amount of interest charged may be made. The first appeal is for a local, independent review by HMRC, then if needs be, to the First-tier Tribunal. HMRC offices and the tribunal have powers of mitigation in appropriate circumstances. Where the appeal is against the imposition of interest, penalties, or surcharge, the tax (but not the penalty, interest or surcharge) must usually be paid before an appeal can be heard, unless the appellant can demonstrate that paying it would cause financial hardship.

The tribunal is given the authority to increase assessments that are established as being for amounts less than they should have been.

A formal procedure is now established for appeals to be settled by agreement. This agreement must be in writing, and there is a thirty-day cooling off period during which the taxpayer may cancel the agreement.

Access to information

HMRC has extensive powers to obtain information. It can enter premises and gain access to computer systems and remove documents.

A walking possession agreement can arise where distress is levied against a person's goods.

The sting in the tail

None of the above penalties or interest is allowable as a deduction when computing income for corporation or income tax purposes.

Action points

• Remember that net errors discovered between £10,000 and £50,000, which are also more than 1% of the Box 6 figure for the relevant return; and all net errors exceeding £50,000 must be separately disclosed by letter or on form VAT 652, and not incorporated in the VAT return
• Default interest applies to such errors and the inaccuracy penalty may apply if you do not declare errors voluntarily before you have reason to believe that HMRC is making enquiries into your affairs
• If you receive a VAT assessment (because you have not submitted a return), you must check it and notify HMRC within thirty days if it understates your liability
• Make sure your systems and records are adequate to enable you to establish the correct amount of tax relating to a VAT period. The preparation of annual accounts cannot be regarded as a safeguard against penalties
• Make sure you get your VAT return and payment in on time. Retain your electronic receipt in case of dispute.
• Some of these penalties may not apply if there is a reasonable excuse, but the scope is limited and should not be relied upon

If in doubt, contact us. It is important that you seek professional advice as early as possible. We can help you!