14.Mr A has corresponded with us about this matter and has made it clear in his communications with us that he strongly believes this should be resolved by HMRC. He tells us he acted in line with the information he received from HMRC in 2012 and says HMRC should be responsible for paying this penalty of 4,759 Euros.
15.Mr A says that during the telephone call with HMRC in 2012, which took place shortly before he moved to Germany, he asked about his tax liabilities, and he says HMRC advised him he should continue to pay his taxes to HMRC. In his email correspondence, he tells us that he followed the information he was given during the 2012 telephone call and continued to pay his taxes to HMRC.
16.In our role, we look at what should have happened, what did happen and whether any gap between the two is so serious, that it indicates maladministration, or a service failure has occurred. Where there is conflicting evidence or uncertainty about what did happen, we consider whether something is more likely or not to have happened, based on the simple balance of probability.
17.We contacted HMRC to request copies of its telephone records, and specifically the records for the 2012 telephone call. HMRC informed us that the telephone call recording is no longer in existence, in line with its data retention policy.
18.This policy, referenced above under ‘Evidence’, states that the ‘the default retention period for HMRC is 6 years plus current, otherwise known as 6 years +1’. The policy goes on to explain that this may vary depending on the type of record in question. As the call was deleted in line with HMRC’s policy, there are no indications of maladministration here.
19.The call in question is no longer available so, like the AO, we are unable to listen to what Mr A and HMRC discussed during the 2012 telephone call. Therefore, as the call recording no longer exists, we asked to see a copy of the notes from the telephone call.
20.When members of the public contact HMRC, their calls are usually recorded and may be attached to the individual file. However, in addition to the call recording itself, there will usually be call notes on the system which outline what was discussed.
21.HMRC provided us with a copy of the screenshot of the records. We can see entries from between 2010 and 2014. While these are brief, they give an overview of why Mr A contacted HMRC on each occasion.
22.In 2012, there are three entries with one about a review, one about a repayment, and one about an address change. There are no specific references that indicate Mr A asked about his tax liabilities upon moving to Germany. To be clear, that does not mean that Mr A did not raise this during the call, but there is no corroborative evidence which shows that he did.
23.Our Principles of Good Administration state public bodies should ensure customers are clear about their entitlements, do what they say they will do, and behave helpfully. They should also create and maintain reliable records.
24.HMRC appears to have dealt with Mr A’s requests and has been able to provide us with a written record of its interactions with him. While these are brief, there is no reference to tax liabilities being discussed. While not dismissing Mr A’s view, we feel on the balance of probabilities, HMRC did not provide incorrect information in 2012. Therefore, as it acted in line with our principles, there are no indications of maladministration.
25.In addition, Mr A tells us that he contacted MAP about what had happened and his concerns about the 2012 telephone call and states that MAP supported his assertion that he may have received incorrect information in 2012. The email from MAP, sent in October 2022, states that ‘I note that, back in 2012 my colleagues may have given you incorrect advice regarding the taxation of your UK interest’.
26.Like the AO, we have reviewed the limited evidence available in this case. In an email to us, dated 20 February 2022, Mr A stated that ‘I followed instructions given from HMRC in 2012 to continue paying my taxes to UK when coming to live in Germany. I have no written HMRC evidence’.
27.Our Principles of Good Complaint Handling say that organisations should, ‘Be open and honest when accounting for their decisions and actions. They should give clear evidence-based explanations for reasons for their decisions’.
28.Unfortunately, like the AO before us, we have not seen any evidence to show that Mr A was misadvised during the 2012 telephone call. Regrettably, due to the time that has elapsed, the original call recording no longer exists, and the limited call notes available do not indicate that future tax liabilities were discuss.
29.Therefore, on a balance of probabilities we cannot see any indications of maladministration as the only piece of evidence available, does not indicate a service failing by HMRC. We will not be taking any further action at this time.