Clause
90
Consequential
amendments
Amendments
made: No. 241, in clause 90, page 63, line 2, leave out subsection
(1) and insert
(1) In
section 9(2) of TMA 1970 (returns to include
self-assessment)
(a) in
paragraph (a) for 30th September substitute
31st October,
and
(b) in paragraph (b) for
31st July substitute 31st
August..
No.
242, in
clause 90, page 63, line 11, at
end insert
(2A) In section
9A(6) of TMA 1970 (notice of enquiry: the filing date)
for the words from means to the end substitute
means, in relation to a return, the last day for delivering it
in accordance with section 8 or 8A..[John
Healey.]
Clause
90, as amended, ordered to stand part of the
Bill.
Clause 91
ordered to stand part of the
Bill.
Clause
92
Mandatory
electronic filing of
returns
Question
proposed, That the clause stand part of the
Bill.
6.30
pm
John
Healey:
The previous five clauses all dealt with Lord
Carters recommendations on self-assessment tax returns. The
next clauses complete the package of legislative changes needed to
implement his other recommendations. Together, they will mean that both
business and HMRC will achieve the benefits that he
envisaged.
Clause
92 extends HMRCs powers to require the use of electronic
communications for the delivery of information to all taxes and duties
for which it is responsible. In line with Lord Carters
recommendations, the revised power will enable HMRC to make
recommendations to require companies to file their company tax returns
online, to require employers to file their in-year forms online and to
require VAT traders to file their VAT returns online. Those
requirements will be phased in from April 2009, in line with the
revised timetable that we announced in the Budget. That timetable will
give businesses the time that they need to prepare for the
changes.
I am happy
to put it on the record again that none of those requirements will be
introduced until the services have been thoroughly tested and proven to
operate effectively. That is in line with the principles set out by
Carter. Both the Treasury and HMRC take that point very seriously. That
is one reason why HMRC is investing £170 million in its online
services over the coming yearsto ensure that it will be
able to perform to the level and capacity that we require. I commend
the clause to the
Committee.
Julia
Goldsworthy:
The Institute of Chartered Accountants has
expressed concerns about this matter and sought reassurance that there
are no plans for the compulsory electronic filing of income tax returns
or the compulsory electronic payment of income tax liabilities. I think
that the Minister has just given that reassurance, so I shall simply
flag up a few issues.
We have talked about vulnerable
groups filing self-assessment returns; there are also concerns about
the ability of businesses to submit electronic tax returns. According
to the regulatory impact assessment, Revenue and Customs estimates that
up to 250,000 businesses will be required to file tax returns online.
That is a significant number of businesses. I can think of many small
businesses in my constituency that work on a subsistence basis. They
might have to deal with the issues that I mentioned earlier, such as
low skill levels, and might therefore have low computer literacy as
well as any other kind of literacy. I seek reassurance from the
Minister that the proposals will not be pushed forward at a rate that
will preclude those businesses from being able to take part or that
will cause them excessive difficulty or expense in
co-operating.
Mr.
Dunne:
I echo the hon. Ladys sentiments. I did not
anticipate that I would be able to bring my experience from the Public
Accounts Committee so directly to bear in this Committee, but I alert
hon. Members to another session that we had recently with the chairman
of HMRC on filing VAT and company tax returns, because it is directly
relevant to this clause. It became apparent from our discussions that
the proportion of companies that file their tax returns online has
increased from 2 per
cent. in the year ending March 2006 to 7 per cent. in the year ending
March 2007. HMRCs target for company tax returns for March 2008
is 35 per cent. The chairman acknowledged that increasing performance
regarding company tax returns in the next 12 months would be a tough
act.
On VAT, the
proportion of companies that filed their returns online in the year to
March 2006 was 5 per cent. That performance improved to 9 per cent. for
the year ending March 2007, but the target for the year ending March
2008 is 50 per cent. and the target for March 2010 is 100 per cent.
HMRCs performance in achieving its targets for online returns
has, by its own admission, been modest at best.
The clause will give HMRC the
ability to encourage companies to file online returns by law, but I add
my voice to that of the hon. Member for Falmouth and Camborne to urge
the Financial Secretary not to take advantage of the mandatory powers
introduced by the Bill until such time as HMRC can cope with
returns.
John
Healey:
I have made it clear, including in my opening
remarks, that we will move to introduce the requirements only when the
systems necessary for handling them have been properly tested. I say
again to the hon. Member for Falmouth and Camborne that the measures
will be phased in from April 2009. That should give businesses time to
prepare. I would welcome it if she wishes to work with HMRC to ensure
that smaller businesses and others in her constituency are fully aware
of the measures.
Question put and agreed
to.
Clause 92
ordered to stand part of the Bill.
Clause 93 ordered to stand
part of the Bill.
Clause
94
Payment
by
cheque
Question
proposed, That the clause stand part of the
Bill.
Mr.
Francois:
The clause essentially gives commissioners of
HMRC the power to produce orders so that when payments are made by
cheque, the payment
is
treated as made when
the cheque clears
rather
than when it is received, as at present. The measure replaces the
current position under section 70A of the Taxes Management Act
1970.
We appreciate
what the Government are trying to achieve, but it raises potential
problems. For instance, what happens when HMRC receives and
subsequently loses a cheque? What happens when it receives a cheque but
then experiences a delay in clearing it? I have asked Ministers whether
they have performance indicators for the receipt of post from
taxpayers. I received an answer from the Paymaster General on
5 March that probably bears repetition. She stated:
HMRC
does not record performance indicators for the receipt, opening or
acknowledgement of taxpayers correspondence...Through a sampling
exercise, HMRC determines and records the percentage of correspondence
answered correctly and completely at 15 and
40 working days after receipt of the correspondence in the Department.
Validated results are only available
annually.[ Official Report, 5 March
2007; Vol. 457, c. 1676W.]
Will the Financial Secretary
tell us the latest annual results? I ask that question in the context
of an article in The Daily Telegraph on 8 May that was
headlined, Tax offices have 1.5m mail
backlog. It said
that
according to the
Public and Commercial Services
Union,
the
reorganisation currently under way within HMRC, which was referred to
earlier, has left
some
store rooms...packed with mail.
In the same article, Blair
Gibbs, who is campaigns director of the TaxPayers Alliance, was quoted
as saying that:
They tolerate
no delay on our part, but thousands of taxpayers face anxiety and doubt
while HMRC routinely takes weeks and sometimes months to reply to their
letters and settle cases...Ultimately, this backlog is a product
of our hugely complex tax system and a slow, bureaucratic culture in
central government.
Will the Financial Secretary give us an
assurance that no taxpayer will be penalised as a result of HMRC losing
cheques or failing to present them for payment in a timely
manner?
John
Healey:
The hon. Gentlemans questions about cheque
handling are not specific to the clause. No doubt he will hand his file
of correspondence with the Paymaster General and his cuttings and press
releases from the TaxPayers Alliance to his hon. Friend the Member for
South-West Hertfordshire. The clause is designed to remove the
cash-flow advantage to businesses that pay by cheque. I think that hon.
Members appreciate that it is a modest, useful, supporting measure in
the drive to encourage more taxpayers to file online. There is a wide
range of acceptable payment methods, including BACS, CHAPS, bank giro
and direct debit, many of which are cheaper, more efficient and easier
than cheques and therefore save money for the taxpayers who use them. I
hope that the provision will be a useful additional measure that
enhances our ability fully to put into effect Lord Carters
recommendations.
Question
put and agreed
to.
Clause 94
ordered to stand part of the
Bill.
Clauses
95 and 96 ordered to stand part of the
Bill.
Schedule
24
Penalties
for
errors
John
Healey:
I beg to move amendment No. 215, in
schedule 24, page 260, line 33, leave
out HMRC think
that.
The
Chairman:
With this it will be convenient to discuss the
following: Amendment No. 2, in
schedule 24, page 260, line 33, leave
out think and insert
have reasonable grounds for
believing.
Government
amendment No.
216
Amendment No. 3,
in schedule 24, page 262, line 18, leave out think and
insert
have reasonable
grounds for believing.
Government amendments Nos. 217
and 218
Amendment No.
4, in schedule 24, page 262, line 41, leave out think
and insert
have
reasonable grounds for
believing.
Government
amendment No.
219
Amendment No. 5,
in schedule 24, page 265, line 22, leave out think and
insert
have reasonable
grounds for
believing.
Government
amendments Nos. 220 and
221
Amendment No. 6,
in schedule 24, page 265, line 26, leave out think and
insert
have reasonable
grounds for
believing.
Government
amendments Nos. 222 and
223
Amendment No. 7,
in schedule 24, page 265, line 30, leave out think and
insert
have reasonable
grounds for
believing.
Government
amendments Nos. 224 and
225
Amendment No. 8,
in schedule 24, page 265, line 34, leave out think and
insert
have reasonable
grounds for
believing.
Government
amendments Nos. 226 and
227
Amendment No. 9,
in schedule 24, page 265, line 38, leave out think and
insert
have reasonable
grounds for
believing.
Government
amendments Nos. 228 and
229
Amendment No. 10,
in schedule 24, page 265, line 42, leave out
think and insert
have reasonable grounds for
believing.
Government
amendment No.
230
Amendment No. 11,
in schedule 24, page 266, line 2, leave out think it
right and insert
have reasonable grounds for
believing it to be
necessary.
Government
amendment No.
231
Amendment No. 12,
in schedule 24, page 267, line 10, leave out think and
insert
have reasonable
grounds for
believing.
Government
amendment No.
232
Amendment No. 13,
in schedule 24, page 267, line 19, leave out
think and insert
have reasonable grounds for
believing.
Government
amendment No.
233
Amendment No. 14,
in schedule 24, page 269, line 9, leave out think and
insert
have reasonable
grounds for
believing.
John
Healey:
There is a great deal in this group and I have a
great deal of briefing for it, but I think that I can boil it down to
its essentials. Clause 96 and schedule 24 contain a couple of important
features, because together they provide a single new penalty regime for
incorrect returns for income tax, corporation tax, PAYE, national
insurance contributions and VAT. They will replace the
separateand very differentregimes that we currently
have for each of those elements.
The penalty will be determined
by the amount of tax understated, the nature of the behaviour giving
rise to the understatement, and the extent of disclosure by the
taxpayer. There will be a right of appeal against all penalties. The
penalties will be set as a percentage of
the understated tax. For failing to take reasonable care, the penalty
will be 30 per cent.; for deliberate action, 70 per cent., and
for deliberate and concealed action, 100 per cent. Importantly, the
legislation lays down substantial reductions for prompted or unprompted
disclosure. In special circumstances, HMRC will have discretion to
reduce the penalty further.
A different measure of penalty
will apply where inaccuracy results in tax being declared late rather
than not at all. In addition, a new concept of suspended penalties will
be introduced, so that HMRC may suspend all or part of a penalty for
careless inaccuracies. The significance of that is to prevent the
penalties from becoming a barrier to people coming forward when things
have gone wrong.
There will therefore also be
substantial reductions for unprompted disclosure by taxpayers,
including down to nil. Disclosure means telling HMRC about the
inaccuracy, taking active steps to correct it and giving HMRC access to
check the details. To encourage taxpayers to work with HMRC to
establish the correct tax position, there are also reductions to
penalties for prompted disclosure, when a disclosure is made in
response to a challenge from HMRC. Setting out the penalty and
reduction levels, and the approach, in this way in statute for the
first time is a major step towards making the regime more visible,
effective and
transparent.
6.45
pm
I come now to
the Government amendments, which I pay tribute to the hon. Member for
Falmouth and Camborne for prompting. We discussed the issue in
Committee of the whole House and I undertook to consider the matter
further and to return with my own amendments, which are set out on the
amendment paper. She and others reflected a concern about the phrase
HMRC think, which occurs in a number of places in
schedule 24. The Government amendments remove that phrase without
replacing it in each instance. Let us be clear. The meaning and effect
of the schedule are not changed by the amendments, but they have helped
to reassure certain representative bodies, and the CIOT made it clear
that it would welcome such an
amendment.
There is
one place where we consider that the word think should
be retained, which is paragraph 11(1), which
states:
If
they think it right because of special circumstances, HMRC may reduce a
penalty.
The distinction
is that this is a discretionary measure and therefore different from
the other places where we are making the amendment. The word
think remains appropriate in that place in the
schedule.
There has
been extensive consultation, as part of the wider HMRC powers and
penalties review, on the provisions. They have met with broad approval,
in principle and, largely, in detail, too. The legislative framework in
the Bill is only the first stage of the work. Work will continue to
develop the guidance required to underpin it, in consultation with
interested groups. We will ensure that that is then widely published
and communicated. In due course, people will look back on this aspect
of the Finance Bill as a significant reform of our penalties
regime.
Mr.
Francois:
The background to the Government amendments to
schedule 24 is the now somewhat infamous wording of HMRC
think. Those words as included in the Bill would have given
HMRC the power to penalise a taxpayer in cases in which it thought that
they had done something wrong. Those highly controversial words were,
in characteristic fashion, buried in the small print of the Budget and,
despite a prior period of consultation on wider issues, took the
accountancy profession somewhat by surprise when they were included in
the
Bill.
John
Whiting, the respected PricewaterhouseCoopers tax expert, said in
Financial Director magazine on 5 April that everyone
had objected to the wording and expected that changes would have been
made to the Bill. He
said:
The
worry is HMRC think is far too loose and
arbitrary.
John
Cullinane, the then president of the Chartered Institute of Taxation,
followed that in a CIOT press release, dated 10 April and entitled,
Alice in Wonderland Tax Penalties, which
argued:
When
this was first suggested by HMRC, the CIOT objected, as did other
bodies. On Budget day HMRC admitted that there was almost universal
disquiet about the statutory formula If HMRC
think...Despite objections to this subjective clause, it
remains in the draft legislation. The CIOT recognises that HMRC have
engaged in constructive consultation over many issues. We are doubly
disappointed that in this instance they do not appear to be
listening.
The
Institute of Chartered Accountants in England and Wales also raised
serious concerns. In its Committee briefing for the Finance Bill, it
says:
Paragraph
1(1) includes the phrase HMRC think. The Explanatory
Notes to the Schedule suggest this is little more than the use of modem
language. We
disagree.
The ICAEW went
on to
argue:
HMRC
thinks does not suggest that HMRC are using their best
judgement or taking a reasonable approach. We believe this phrase will
lead to confusion and court cases to determine its true
meaning.
For good
measure, the London Society of Chartered Accountants, which is
affiliated to ICAEW, simply said this about HMRC
think:
This
is at best otiose and at worst adds an unnecessary
ambiguity.
It
appears that Ministers picked up on the weight of professional
opposition to their proposal and a climbdown began. In the debate on
HMRC powers in Committee of the whole House, the Financial Secretary
dropped a broad hint that some reversal would be forthcoming when he
told the House:
In recognition of the
anxiety that has been expressed and in response to those
representations that have been made, I intend to table an amendment in
the Public Bill Committee to clause 96 and to schedule 24 on civil
penalties.
He did
better than that; he tabled more than a dozen. As the Financial
Secretary may recall, I welcomed his comments
at the time
by saying in the next
column:
As the
Minister mentioned it, may I say quickly that Conservative members
welcome his admission that there has been concern on clause 96. We have
received representations on the matter and we look forward to seeing
his amendment in due course. [Official Report, 1
May 2007; Vol. 459, c. 1460-61.]
Now that we have the amendments before
the Committee, in the same spirit, I welcome what the Minister is
doing. Conservative Members think that he
has done the right thing and that he has listened to the weight of
professional opinion on the matter. Therefore, we support his
amendments as they will improve the Bill.
As I understand it, there is
one example in the schedule where the wording HMRC
think will remain in the Bill. That is at paragraph 11(1),
entitled special reduction, which will allow HMRC
discretion in special circumstances to reduce the
penalty but not to increase it. I think that the Minister said that
that interpretation is correct and, if it is, will he briefly give some
simple examples of what those sorts of special circumstances might
be?
Finally,
before concluding my discussion of the amendments, it would clearly be
desirable to prevent such a situation from arising again. It would have
been better if the Government had not gone there in the first place,
so, with that in mind, will the Minister say how the situation came
about? Were the words inserted on the insistence of Ministers, on the
advice of parliamentary draftsmen, or did someone just get out of bed
the wrong side one morning? What actually happened and how can we
prevent it from happening again?
Julia
Goldsworthy:
I will perhaps be more generous to the
Minister than the hon. Member for Rayleigh because my view is that the
explanatory notes were clear that there was never any intention to
introduce a new spectrum of subjectivity to how penalties would be
applied. However, genuine concerns were expressed by the various
representative bodies that contacted the Minister about how the law
would be interpreted. There was a real fear that we would see the
introduction of a more subjective test to whether penalties would
apply, rather than an objective one. I will not raise everything from
the debate on the Floor of the House, which was not in relation to the
schedule but to earlier clauses that also used the word
think.
Essentially,
by withdrawing the phrase HMRC think, the
Governments amendments achieve the same result as my
amendments, which try to introduce a more objective sense to the use of
particular language. That is clearly an improvement and allows the
representative bodies to welcome the rationalisation more broadly than
they were initially able to.
In addition to the points made
by the hon. Member for Rayleigh, I would appreciate the Minister
clarifying the following matter. I notice from the Ministers
letter that the meaning and effect of the schedule will not be changed
by the amendments. If the intention was, as I am assuming, to try and
make the legislation more straightforward, what impact has the little
exchange between representative organisations had on the drafting of
future legislation? We know from the Financial Secretarys
letter to the Committee on 22 May
that
think
is used in over 3,000 instances in other statutes, including in Finance
Bills.
Will there be a
policy change from now on? Are we going to see HMRC officers, or anyone
else, thinking about future Finance Bills and other
legislation?
John
Healey:
For future drafting, we will use the formula of
HMRC think when we think that it is appropriate. As the
hon. Lady said, that formula is well
established in legislation, in Finance Bills and more widely. Where
appropriate, it seems sensible to use it. In this case, we took the
view that it was clearer and more transparent to have HMRC
think in the original drafting. We put it out to consultation
on that basis and many were persuaded of our point of view, but some
were not. There are still concerns out there, however, which is why we
have responded with these amendments. As I explained, in our view, the
practical effect of the clause and the schedule will be unaffected by
the amendments. I hope that hon. Members feel that they have played an
important part and are satisfied with the reframing of the
Bill.
On specific
examples of special circumstances, the Bill is designed not to reflect
circumstances of which we are aware already, otherwise we would have
framed the provisions in the clause and schedule in order to deal with
that. In a sense, it is a safety valve should such unforeseen
circumstances arise where a further reduction is required.
If I may ask your indulgence,
Mr. Illsley, I must apologise and provide some clarification
to the Committee about something that I mentioned earlier concerning
clause 87 and the capacity of the white space on the self-assessment
tax form. Having checked the capacity, I find that it is not about
30,000 characters, but 9,180. I apologise to the Committee for that
misleading information earlier. I say simply that that figure is still
sufficient to contain a short speech by the hon. Member for
Rayleigh.
Rob
Marris:
I welcome the amendments, which do not change the
meaning of the Bill. As the hon. Member for Falmouth and Camborne said,
the Financial Secretarys letter said that there are 3,000
instances elsewhere in legislation where that drafting is used. In
respect of remarks that I made earlier, I note that the meaning and
effect of various other parts of the Bill would not be affected if the
word but was removed. If I am foolish enough to serve
on another Finance Bill Committee, I do not want to get a letter saying
that but starts 3,000 subsections elsewhere because we
did not clean that up in this
Bill.
Amendment
agreed
to.
Amendments
made: No. 216, in schedule 24, page 262, line 18, leave
out HMRC think
that.
No. 217,
in
schedule 24, page 262, line 18, leave
out them, and insert
HMRC,.[John
Healey.]
The
Chairman:
We now come to amendment No. 248. I
call Theresa
Villiers.
Mr.
Francois:
I beg to move amendment No. 248, in
schedule 24, page 262, line 19, leave
out 30 and insert
60.
Interesting
to finish my career shadowing the Treasury with a sex change. Paragraph
2 of schedule 24 is designed to give HMRC the power to penalise a
taxpayer if they
have
failed to take
reasonable steps to notify them, within the period of 30 days beginning
with the date of the assessment, that it is an
under-assessment.
Our
amendment is simply designed to increase the period that a taxpayer has
to 60 days. The amendment is necessary because, in the words of the
ICAEW,
The 30 day time limit
looks unreasonable, particularly given that the 30 days starts from the
date that is on the assessment rather than the date it is received by
the taxpayer. We think it would be more reasonable to give a 60 day
period.
The point about
the time that it takes to receive the assessment after the 30-day clock
has already started ticking seems valid, not least because the taxpayer
could be on holiday when the assessment arrives. Similarly, any
disruption to the postal service, say as a result of industrial action,
could eat into a good part of the 30-day period. That seems pertinent
in light of the stand-off between Royal Mail and the trade unions,
which could lead to the first national postal strike in many
years.
In addition,
the assessment in the case of a complicated return might take some time
to check, and the taxpayer might be reliant on their adviser to do it
for them and to communicate the information to them. That can all take
time. I would be grateful if the Minister could clarify whether the
clause is intended to be used in all cases of HMRC errors that lead to
an underassessment or, as I believe has been suggested to some members
of the professions, it is likely to be used in practice only in cases
of default assessments issued in the absence of a completed tax return.
Subject to the answer to my question, we believe that it would be
reasonable to extend the period that the taxpayer has to receive and
check their assessment from 30 to 60 days. I commend the amendment to
the Committee.
7
pm
John
Healey:
It is indeed a provision that relates to the
default responsibility of HMRC to raise an assessment when no return
has been made by the taxpayer at all. In relation to holidays, the
provisions of the clause will come into effectbecause this is
where the process startsonly in relation to a taxpayer who
fails to make any return at all. To make it clear, any taxpayer who
sends their return on time will not receive such assessments because
they will have self-assessed and so the penalty will not
apply.
Some coverage
has suggested that somehow taxpayers will be penalised for HMRC errors.
That is not the case. I accept that some confusion has arisen from the
rubric for paragraph 2 of schedule 24, which was entitled Error
in HMRC assessment. I am making steps to change that to a more
appropriate and accurate Underassessment by HMRC. The
taxpayer knows the facts or is in a position to find them out, and they
should decide whether an HMRC assessment is too low. All they have to
do within 30 days is to tell HMRC that an assessment might be too low.
They can take longer to work it out, correct the figures or file a
correct return. Extending the period in this way would be out of line
with similar obligations in the Taxes Act 1988. I urge the
hon. Gentleman not to press the amendment.
Mr.
Francois:
As the Minister rightly admitted, there has been
some confusion about this matter with regard to the rubric. I hope that
we have performed some small service in tabling the amendment by
getting that explanation on the record. I am grateful to the Minister
for that commitment, and I hope that it helps to clarify the point.
Before I go to the Foreign Office, I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Amendments made: No.
218, in
schedule 24, page 262, line 41, leave
out HMRC think
that.
No. 219,
in
schedule 24, page 265, line 22, leave
out HMRC think
that.
No. 220,
in
schedule 24, page 265, line 24, leave
out HMRC
think.
No.
221, in
schedule 24, page 265, line 26, leave
out HMRC think
that.
No. 222,
in
schedule 24, page 265, line 28, leave
out HMRC
think.
No.
223, in
schedule 24, page 265, line 30, leave
out HMRC think
that.
No. 224,
in
schedule 24, page 265, line 32, leave
out HMRC
think.
No.
225, in
schedule 24, page 265, line 34, leave
out HMRC think that.
No. 226, in
schedule 24, page 265, line 36, leave
out HMRC
think.
No.
227, in
schedule 24, page 265, line 38, leave
out HMRC think
that.
No. 228,
in
schedule 24, page 265, line 40, leave
out HMRC
think.
No.
229, in
schedule 24, page 265, line 42, leave
out HMRC think
that.
No. 230,
in
schedule 24, page 265, line 44, leave
out HMRC
think.
No.
231, in
schedule 24, page 267, line 10, leave
out HMRC think
that.
No. 232,
in
schedule 24, page 267, line 19, leave
out they think
that.
No. 233,
in
schedule 24, page 269, line 9, leave
out HMRC think.[John
Healey.]
Schedule
24, as amended, agreed to.
Further
consideration adjourned.[Kevin
Brennan.]
Adjourned
accordingly at three minutes past Seven oclock till Thursday 7
June at Nine
oclock.
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