HMRC has issued factsheet CC/FS9 on the individual rights of taxpayers who are facing penalties for non-compliance with tax rules, focusing on article 6 of the European Convention on Human Rights
Factsheet CC/FS9 sets out the individual’s rights when HMRC demands information about potential tax evasion and the extent of HMRC’s powers to levy penalties.
Article 6 gives individuals certain rights when HMRC is considering whether to charge various penalties, including the right not to answer questions posed by the tax authority, although this does not cover information or documents that already exist.
The HMRC guidance states: ‘When we’re considering penalties you’ve the right under Article 6 not to answer our questions. This is sometimes called the right not to self-incriminate or the right to silence. This right doesn’t cover information or documents that already exist. This means that you must give us the information or documents that already exist, if we’ve a legal right to ask for them.
‘In making a decision about how much you’re going to co-operate with us, you’ve the right to get help from a professional adviser. If you don’t already have an adviser, you may want to consider consulting one.’
As is standard practice with HMRC, it stresses that any matters surrounding penalties will be dealt with ‘without unreasonable delay’. Generally, penalties are issued once HMRC has agreed the tax position with the taxpayer, but then they fail to pay.
In the event that the tax position cannot be agreed, HMRC will send an amendment or assessment of any additional tax due.
If HMRC decides that a penalty is also due, an assessment of the penalty, based on the additional tax, will be sent to the taxpayer.
There are also various rights when a penalty is issued. ‘If we charge you a penalty, you’ve the right to ask for a review or to appeal. You also have the right to ask for your review or appeal against both the tax and the penalty decisions to be considered together.’
Factsheet HMRC1, HM Revenue and Customs decisions – what to do if you disagree, explains what to do if you want to ask for a review, or to appeal.
Tax cases are heard initially at the First Tier Tribunal (FTT). There is the possibility of applying for Legal Aid in certain circmstances.
HMRC guidance, Compliance checks: The Human Rights Act and penalties - CC/FS9
Report by Sara White