HMRC being unfair? What next?!

Mark McLaughlin looks at how HMRC’s actions can be challenged if they are considered unfair.
 
Taxpayers sometimes have grievances about HM Revenue and Customs (HMRC), such as mistakes or unreasonable delays. What can be done? 
 
Some possible actions to consider are outlined below.  
 
You have rights!
Disgruntled taxpayers could consider referring HMRC to ‘Your charter’ (www.gov.uk/government/publications/your-charter/your-charter). It applies to the conduct of HMRC officers when interacting with taxpayers (e.g. during tax return enquiries). 
 
The charter comprises seven taxpayer ‘rights’ (e.g. ‘respect you and treat you as honest’ and ‘deal with complaints quickly and fairly’) which HMRC must observe.
 
Make a complaint
The Gov.uk website contains guidance on complaining about HMRC’s service, which provides telephone numbers and postal addresses for complaints, and online forms for those with a government gateway user ID (www.gov.uk/complain-about-hmrc).
 
A different procedure applies in the (unlikely) event of serious misconduct by HMRC staff (www.gov.uk/guidance/complain-about-serious-misconduct-by-hm-revenue-and-customs-staff).
 
Taking it further… 
The Adjudicator’s Office (www.adjudicatorsoffice.gov.uk/) is an independent body that investigates complaints about HMRC maladministration. It has the power to recommend restitution in the form of apologies and (modest) financial payments.
 
An alternative is the Parliamentary and Health Service Ombudsman (https://ombudsman.org.uk). Access is via the taxpayer’s Member of Parliament. It should be noted that a case referred to the Ombudsman cannot later be referred back to the Adjudicator (although the reverse is possible).
 
Let the judges decide 
It may sometimes be appropriate for HMRC’s unfair actions to be drawn to the attention of the tax tribunals.
 
For example, in Revenue and Customs v Ritchie [2019] UKUT 71 (TCC), in January 2007 the taxpayers sold land comprising their house and other buildings. Their tax returns for the year of disposal (prepared by their accountant) contained no reference to the sale. In March 2013, HMRC made a discovery assessment (under TMA 1970, s 29), which assessed the taxpayers to capital gains tax on the disposal, on the basis that the gain was not wholly covered by principal private residence (PPR) relief.
 
The First-tier Tribunal (FTT) ([2017] UKFTT 449 (TC)) held that more PPR relief was due than HMRC allowed. The FTT also considered whether the conditions for a discovery assessment (and the extended time limit provisions in TMA 1970, s 36) were satisfied. One of the conditions was that the loss of tax assessed must be due to the carelessness of the taxpayer or a person acting on their behalf. The FTT held that the provisions of TMA 1970, ss 29 and 36 were satisfied due to carelessness, not by the taxpayers, but their advisers.
 
However, the Upper Tribunal (UT) considered whether evidence advanced by HMRC shortly before the end of the FTT hearing gave the taxpayers adequate notice that HMRC intended to argue that the accountant’s carelessness (rather than the taxpayers’) resulted in the loss of tax for discovery assessment purposes. The UT held that HMRC had not raised this point (i.e. the taxpayers’ representative understood HMRC’s case was that the taxpayers themselves were careless); it was not fair for the point to be taken into consideration. The taxpayers’ appeal was allowed and the assessment discharged.
 
Practical tip
For some insight into how HMRC deals with complaints, see:
 
Complaint handling guidance (www.gov.uk/hmrc-internal-manuals/complaints-handling-guidance);
Complaints and remedy guidance (www.gov.uk/hmrc-internal-manuals/complaints-and-remedy-guidance).