12. When we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the event(s) complained about had a negative effect which the organisation has not put right. Having done so we cannot link HMRC’s failing to the negative impact Mr Q has claimed.
13. HMRC’s Customer Charter says that it will help people meet their tax responsibilities and make sure they get any refunds they can claim. HMRC should also reach an appropriate outcome quickly and, if it makes a mistake, will put it right as soon as possible.
14. Mr Q submitted the Corporation Tax return in January 2023. HMRC processed this and issued a refund in June of that year. The AO outlined that HMRC had an eight-week timescale for dealing with Corporation Tax returns in early 2023. There is an acceptance that this was not met, with it taking five months for HMRC to process Mr Q’s return.
15. Given the delay, it seems clear that HMRC did not act in line with its Customer Charter in this instance. The AO explained to Mr Q that HMRC failed to ‘deliver the level of service that [he is] entitled to receive and [HMRC’s] delay in processing [the Corporation Tax] return contributed to [his] detriment.’
16. When we identify indications that something has gone wrong, we look to see if this had an impact on the complainant and whether the organisation has done anything to put this right. Mr Q explains that HMRC’s delay has caused him and his company to be unable to benefit from the refund. He says this has led to financial loss and ongoing stress, uncertainty, upset and inconvenience.
17. We can understand how Mr Q’s inability to process the tax refund means he does not benefit from it and this would be distressing.
18. We note Mr Q’s company was dissolved in April 2023. Because his company ceased to exist before HMRC issued the refund, he is unable to benefit from it. He argues this is due to HMRC’s failings. He says if it had processed the return when it was meant to, he would have received the refund before his company was dissolved. The AO disagreed with this and noted that Mr Q had arranged for the company to be dissolved before all its affairs had been settled.
19. We can understand Mr Q’s position and the frustration he has experienced in trying to resolve this issue. Having given this careful consideration, we are satisfied that HMRC is responsible for only its own actions, not Mr Q’s.
20. The Companies Act explains that ‘when a company is dissolved, all property and rights whatsoever vested in or held on trust for the company immediately before its dissolution […] are deemed to be bona vacantia’.
21. ‘Bona Vacantia’ means vacant goods, and is the term used for ownerless property, which by law passes to the Crown. HMRC’s ‘Bona Vacantia Guidance’ section ‘BVG1030 - Bona Vacantia: Dissolved companies’ explains ‘Once a company is dissolved, it can no longer do or receive anything. In particular, it cannot receive a tax refund.’
22. HMRC’s public guidance ‘Strike off your limited company from the Companies Register’ says ‘You should make sure that any business assets are shared among the shareholders before the company is struck off. Anything that’s left will go to the Crown. This includes any payments your company may receive in future, for example refunds from HMRC. You’ll have to restore the company to get anything back.’
23. Mr Q applied to dissolve the company within days of submitting the Corporation Tax return. He knew that the company was expecting a tax refund. He also likely knew that the company could not receive any assets once it was dissolved. A specific example of a tax refund from HMRC is given in the dissolution information available to the public.
24. Although HMRC processed the refund outside the timescale it provided for this, we see it was Mr Q’s actions in dissolving the company before this was received which has caused him to be unable to benefit from this. We therefore cannot link the impact of being unable to benefit from the refund to HMRC’s delay.
25. Mr Q says he experiences ongoing stress, uncertainty, upset and inconvenience. We appreciate this has been a difficult time for him and can see how the delay will have been inconvenient and upsetting.
26. Our Principles for Remedy say that when things go wrong organisations should aim to put the complainant back in the position they would have been in had it acted as it should. In many cases, an apology and explanation may be a sufficient and appropriate response.
27. HMRC appropriately processed and issued a tax refund to Mr Q. Unfortunately, this was not done in a timely manner. HMRC acknowledged the delay and apologised to Mr Q for the impact of it. We note the AO has also asked HMRC to identify other tax cases like yours to see if it can action these more promptly and learn from its mistake.
28. HMRC also explained that Mr Q remains able to benefit from the refund should he restore the company. This is as the public guidance states and is supported by section1012(2) of the Companies Act which sets out the means to recover an asset after a company has been dissolved is through restoration of the company. For the purposes of the Act, ‘property’ includes money belonging to the company.
29. In view of our decision that HMRC is not responsible for Mr Q’s dissolution action, we are satisfied that HMRC bears no responsibility for any cost he may incur to do this. HMRC has also explained that it cannot re-issue the refund in Mr Q’s name (or that of his ex-business partner). This is because of the Bona Vacantia status of the refund.
30. HMRC has acknowledged the delay it caused and taken appropriate steps to put things right. Its actions are in line with our Principles. It has also offered advice on how Mr Q could ‘own’ the refund. While we acknowledge that Mr Q continues to feel frustrated by his experience with HMRC, we find it has done enough to put it right, in line with our Principles. We hope our explanation is helpful in reassuring Mr Q that HMRC has acted as it should.