Are we mad? Rely on HMRC? What can we be thinking of?
Bear with us.
A great number of cases coming before the Tribunal concern penalties. Typically the taxpayer is claiming that the penalty in question is not due in law because he has a “reasonable excuse” for failing to do whatever it was that he was required to do. Undoubtedly one “reasonable excuse” for not doing something is having been told unequivocally by a responsible officer of HMRC in possession of all the relevant facts that you don’t need to do it. That was exactly the defence which Mr Kirkman put up. He was not the first to do so, nor do we imagine that he will be the last. Yet Mr Kirkman lost his case. Why?
It seems that Mr Kirkman could not specify the date of the telephone call in which the advice was given and HMRC had no record of it (which might or might not be surprising – we don’t know if HMRC log all calls). Perhaps naively, the Tribunal thought it “unlikely that such advice would be given by [HMRC], principally because such advice would clearly be incorrect” (has the Tribunal judge never called any HMRC helpline, we wondered?). So Mr Kirkman lost because, bluntly, the Tribunal thought he was lying about the call.
We’ve said it before but it’s worth repeating. If you are intending to rely on advice from HMRC, get it in writing. If you can’t (and you often won’t be able to, in HMRC’s rush to streamline and economise) then
- try to make sure you get the advice from someone in HMRC who has relevant knowledge
- make a note there and then of who you called, when and what they said
- send a copy to HMRC: they will probably lose it, of course, but that’s not the point.
By doing all this you will have done all you can to establish the fact that advice was given and what that advice was. Then, if the advice proves to be wrong, you stand some chance of demonstrating that you relied upon it and some chance of avoiding a penalty.
Better still, don’t rely on HMRC. Ask a professional.