18. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not found any indications that something has gone wrong.
Underpayment 19. Mr D is unhappy that HMRC and AO deny HMRC made any mistake which led to the underpayment. Our enquiries with HMRC have established how Mr D’s new employment came to be recorded in HMRC’s records with an estimated income of £5,000 and an interim basic rate tax code.
20. HMRC received a notification of Mr D’s new employment on 25 May 2021 from his employer. His employment was marked on the checklist as a second job. As this was a few days before his pay date of 31 May 2021 no income figure was available. Under HMRC’s PAYE13090 guidance ‘Coding: coding: general principles: estimated pay’, if there is no income figure available for a secondary source of income, a default estimated pay figure of £5,000 is used, and an interim tax code of basic rate set based on this.
21. This is initial tax code setting is an automated process based on the forms submitted to HMRC. We note there was no available earnings figures to set a tax code by. The employment also was marked as a secondary, not primary, source of income. Following HMRC’s notification of a new tax code, responsibility for alerting HMRC to any inaccuracy is placed on the taxpayer and employer.
22. We have not seen any indication that HMRC’s action was an error on its part as, what happened is in line with what should happen based on the information provided to HMRC. The origin of the estimated income amount and the interim tax code was due to the timing of the notification to HMRC, not maladministration on the part of HMRC.
23. Mr D makes the argument that HMRC would have had enough information in his historical tax records and subsequent Real Time Information (RTI – the system through which payroll information is submitted by employers to HMRC when paying employees). He says RTI figures received form his employer should have alerted HMRC that he should not have been paying basic rate tax.
24. AO correctly explained that under HMRC’s PAYE95055 guidance ‘Reconcile individual: HMRC delay: ESC A19: information from the employer’, does not automatically use in-year RTI information to update a customer’s tax code. This means HMRC had no duty to monitor Mr D’s tax and earnings following the initial code setting in order to identify potential issues.
25. HMRC’s PAYE5025 guidance ‘Background: real time information (RTI): submission types’ sets out how HMRC reconcile the collected RTI information. This is collected in an End of Year Record (EOYR), at the end of the tax year and processed later. It was this scheduled review of its financial data for Mr D that revealed the underpayment after the end of the tax year, which led to him being notified.
26. We see that, in the absence of any prompt from Mr D or his employer, there was no requirement for HMRC to have taken action sooner than it did regarding the information it was receiving. We recognise that HMRC is required to process millions of taxpayer’s tax liabilities. Its policies reflect the practical limitations on its ability to manually monitor and check individuals tax affairs more frequently unless prompted by the taxpayer.
27. HMRC appears to have complied with the responsibilities set out in its policies and procedures in how this underpayment arose, and how long it took to identify it. We have not seen indications of any errors contributing to this happening. While HMRC used a default figure due to initially receiving limited information, this was not maladministration.
Consideration of appeal to write off 28. While we appreciate Mr D’s frustration at an income tax underpayment occurring, the outcome he seeks (of having the sum collected by HMRC written off and reimbursed to him) would be dependent on certain specific conditions being met. In lay terms this would be when the taxpayer had fulfilled all their statutory duties, and the underpayment only occurred because of maladministration on the part of HMRC.
29. Mr D argues that HMRC’s (ESC) A19 policy should allow him to have his underpaid tax written off due to HMRC maladministration. ESC A19 sets out that HMRC must write off the underpayment if:
• it had the information needed to get the tax right • it failed to use it • and the taxpayer reasonably believed their tax affairs were correct.
30. As set out earlier in this statement HMRC did not initially have the information it needed to get the tax code right. As it didn’t have earning figures and under its policies it used an estimated default figure until it could notify Mr D and his employer and prompt correction if this was not the right earnings figure or tax code. HMRC was also informed the employment was secondary, which is incorrect, and would signal to HMRC to expect the earnings from this may be quite low.
31. While HMRC did later receive earning information which could be used to get the tax right, it was not required to review this until after the end of the tax year, which it did. HMRC therefore did not fail to use the information once it had it. Therefore, our view is the first two conditions of ESC A19 would not apply.
32. Additionally, as we understand it, Mr D would not meet the final condition, of reasonableness. On this alone ESC A19 would not apply be regardless of the other conditions. We set out our reasons for this view below.
33. Section 7 of the Taxes Management Act 1970 (TMA 1970) requires individuals to notify HMRC if they become chargeable to income tax and HMRC has not otherwise been informed. This includes situations where HMRC has issued an incorrect tax code and, as a result, not enough tax is being collected. Even though PAYE normally collects tax automatically, if the taxpayer knows that the code is wrong and that underpayment will result, they must notify HMRC so the correct tax can be collected.
34. HMRC's public guidance set out on the GOV.UK website ‘Tax Codes: Overview’ explicitly tells taxpayers to check their tax code and report errors. While this is regularly updated, the principles of the taxpayer’s role in ensuring correct taxation remain constant. This information would also have been in place at the time of the events in question and easily obtained. We believe Mr D should have been aware of his statutory responsibilities in ensuring the right amount of tax would be paid to HMRC.
35. Key points from this guidance are that taxpayers must check and update the information HMRC holds if the tax code is wrong. The guidance also informed that incorrect or missing information is usually the cause of a wrong code, and the taxpayer must correct it. This is HMRC’s interpretation of the taxpayer’s responsibility under TMA 1970.
36. HMRC and AO correctly explained to Mr D that he has a statutory duty to check a tax code when notified of one being applied and to inform HMRC if it is not correct.
37. Mr D was notified by HMRC of being on a BR tax code twice. Firstly, when he commenced employment with the airline in May 2021, and secondly, when HMRC notified him of an update to its records in September 2021 to resolve there being informed he had two secondary incomes and no primary. Mr D was therefore prompted, more than once, to check and alert HMRC if any of this information was inaccurate.
38. We also considered how Mr D would have been receiving regular payments from his employer. He was paying significantly less income tax and receiving much more money than he should expect from employment of £75,000. This continued over a significant period of time. Even if he had not noticed the tax code that had been applied in HMRC’s notifications, we believe it is reasonable to have expected Mr D to have enough of a grasp of his own personal finances to notice he was paying half the amount of tax he was previously before his break from the airline job.
39. Mr D does not question that the amount sought was correct to ensure has paid the right amount of tax for his level of income, only that he should not be asked to pay this as he feels it is unfair to collect it later.
40. The indications are that AO have rightly identified that HMRC have applied ESC A19 properly, and Mr D would not qualify for consideration to waive his overdue tax under ESC A19. We recognise this will be disappointing news to Mr D. In the absence of ESC A19 applying, HMRC are required to collect outstanding tax, and it does not have discretion to write off the overdue amount. We have found no indications of maladministration in consideration of Mr D’s appeal over his tax debt.
Writing off interest on the overdue tax 41. Mr D complains that it was unreasonable to also add interest on to the underpaid tax debt. He says the reason for this being added was him not meeting the statutory dates for repayment, but this was due to maladministration on the part of HMRC preventing him settling the debt.
42. We see that HMRC has accepted it unreasonably delayed responding to his complaints about the overpayment (which contained his appeal to have it written off). HMRC awarded £75 in redress for this. HMRC does not accept that this delayed Mr D settling the debt as, regardless of whether he was challenging it, HMRC had not notified him it had suspended collection of the debt and so Mr D should still have settled it.
43. HMRC’s DMBM405020 guidance ‘Interest: Interest Review Unit (IRU): General principles: Overview’ covers how HMRC should manage objections to interest charges. It sets out that ‘the sums HMRC seeks to collect are due under law...and all taxpayers are expected to make full payment by the due date.’, and ‘a case will not normally be considered before the underlying tax has been paid and the interest charged’.
44. HMRC has accepted there was delay in responding to his objections and offered remedy for this. However, the failing does not link to the injustice claimed. Mr D was still obliged, by law, to settle his outstanding tax bill by a specific date or interest would be applied. HMRC is also required to not consider an appeal against a tax debt until it has been settled. HMRC therefore correctly followed its policies in relation to this, and AO correctly identified there was no error in applying them.
45. Unfortunately for Mr D, he appears to have made an error in delaying payment while attempting to have the debt written off. We have seen no evidence he came to this conclusion due to incorrect advice from HMRC as it appears it made his responsibilities clear to him on when he needed to settle his tax bill by.
46. We have seen no indication of maladministration in the handling of Mr D’s request to write off the interest. He did not settle his debt in time and so incurred interest, and HMRC’s policies do not allow discretion to write this off if he did not pay due to wanting to resolve his challenge to the debt first.