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2019 review: the tax compliance and disputes landscape

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2019 has been characterised by an intensifying compliance burden on corporates, the continued expansion of HMRC powers, and a reminder of the importance of the role of the courts in maintaining a balance between the interests of HMRC and taxpayers. Tackling tax non-compliance remains extremely high on the government’s agenda and has been a feature of each of the main political parties’ tax pledges for the forthcoming general election.

From the tax risk and compliance perspective, 2019 has seen a continuation and expansion of many of the principal trends that have emerged in this space in recent years. In this article, we review some of the key developments which have occurred in compliance and enforcement this year and look ahead to what taxpayers should expect in 2020.

Readers will not be surprised to learn that 2019 has seen an increase in both the tax regulatory burden placed on taxpayers and HMRC’s powers to investigate and enforce non-compliance. However, the courts have played an important role in upholding taxpayers’ rights and safeguards in a number of important decisions, indicating that perhaps, in some cases, the tide is starting to turn against the imbalance of powers currently enjoyed by HMRC.

Corporate compliance

A notable feature of the current tax landscape is the onerous burden on corporates to self-regulate and report. 2017 and 2018 saw corporate taxpayers devote significant time and resource to the design and implementation of prevention procedures to counter the risks of facilitation of tax evasion. For some corporates this task remains ongoing: in March 2019, HMRC commissioned a survey to evaluate the impact of the new corporate criminal offences; the report found that there were low levels of awareness of the offences, with only 24% of all businesses having undertaken a risk assessment almost one year after the offences were introduced.

2019 has seen the compliance burden intensify further, as corporates prepare for the implementation of measures such as DAC 6 and the off-payroll working rules, as outlined further below.


Although the new regime will only go live in the UK on 1 July 2020, it will be back-dated to include reporting of cross-border arrangements in which the first step was taken after 25 June 2018.

Many businesses are now incurring significant time and resource in preparing for the regime, through the design of systems and policies to facilitate compliance. Yet, in the absence of the final UK regulations and guidance, there remains a high degree of uncertainty over which arrangements may be caught. It is hoped that, when the final UK regulations are published, the government will have produced something that is clear and workable in practice.

Off-payroll working rules (IR35)

The proposed extension of the off-payroll working rules to the private sector is another example of HMRC shifting the compliance burden onto corporates. Many companies are currently engaged in detailed and individual assessments of the status of all contractors with whom they engage, but they are doing so in the absence of any clear guidance. Whilst the effect of the new regime, once enacted, will be to assist HMRC’s enforcement efforts, the proposals have been met with concern by contractors and some ‘end-user’ firms and preparation for compliance is an expensive and time-intensive exercise.

Are such concerns being heard? At the time of writing, each of the main political parties have pledged that they will review the proposed reforms following the election. However, whether any such review will lead to action, such as the delayed introduction, amendment or withdrawal of the reforms, remains to be seen.

HMRC guidance

In the absence of adequate published guidance from HMRC, a question arises as to how corporates can best prepare for the introduction of DAC 6 and/or the off-payroll working rules in an efficient way, whilst ensuring they are fully compliant? Clear guidance is critical in providing certainty as to the scope of new measures and transparency as to implementation. Both are crucial to ensuring there is an appropriate balance between the interests of HMRC and the taxpayer. In another context, HMRC’s approach to guidance has been criticised earlier this year following the House of Commons Treasury Committee’s Conduct of tax enquiries and the resolution of tax disputes inquiry in August 2019. It is hoped that this will be addressed by HMRC in 2020.

HMRC powers

Taxpayers, advisers and commentators have long been concerned at the extension of HMRC powers which alters the crucial balance between HMRC’s statutory duty to collect taxes and the safeguards required to ensure that these powers are used correctly.

Since 2010, the government has introduced over 100 measures to tackle tax non-compliance, including the general anti-abuse rule, ‘naming and shaming’ powers, tougher penalties for offshore evasion, new criminal and civil sanctions for intermediaries participating in offshore tax avoidance or evasion, and the highly controversial loan charge, to name but a few. HMRC now considers that tax non-compliance covers the full spectrum of taxpayer behaviour, from innocent error through avoidance to evasion, and states that its powers will be used accordingly.

The HM Treasury and HMRC paper, Tackling tax avoidance, evasion, and other forms of non-compliance (March 2019), states that ‘at any one time, HMRC has around half of the UK’s largest businesses under investigation’. A pattern appears to be developing whereby HMRC is opening some investigations on a fairly exploratory basis, and without any real grounds for suspecting there may have been an under-assessment of tax. This is in part the result of the increased attention being given by the media, politicians and tax activists to tax compliance, and the political pressure on HMRC to fulfil its duty as a tax collection authority, and to ensure that everyone must pay ‘their fair share of tax’. In the House of Commons Treasury Committee’s report, Disputing tax (July 2019), the Committee supports HMRC’s approach, stating ‘it is HMRC’s responsibility to protect public funds from tax avoidance, and Parliament requires HMRC to fulfil that responsibility assiduously’.

We consider below some of the key developments in HMRC’s powers, including how HMRC has used its powers to challenge taxpayers’ positions during 2019.

‘Nudge’ letters

This year, HMRC has continued with its policy of sending ‘nudge’ letters to groups of taxpayers which it believes meet certain criteria, presumably on the basis that this strategy may flush out instances of undeclared, or under-declared tax more quickly and cost effectively than were HMRC required to review every case. Recent examples of this include:

  • letters to a subset of taxpayers, whose tax affairs are dealt with by HMRC’s Wealthy & Mid-Sized Business Unit and who HMRC believes hold interests in offshore funds, asking the recipients to check that they have correctly declared money received from offshore collective investment funds; and
  • letters to owners or occupiers of UK properties owned by non-resident entities which are purportedly to check compliance with the non-resident landlord scheme (NRLS) and/or to check that the annual tax on enveloped dwellings (ATED) has been correctly paid. These letters typically request a large amount of information which is not directly relevant to compliance with NRLS or ATED, but which could be used much more widely by HMRC. For example, where the property is held by a trust, the letters have requested details of the settlor, trustees and beneficiaries.

Some of these ‘nudge’ letters have been sent as a result of information which HMRC has received from other jurisdictions through the automatic exchange of information required by the common reporting standard (CRS). Some are simply targeted at taxpayers whose affairs are dealt with by HMRC specialist units (for example, HMRC’s High Net Worth Unit and the Wealthy & Mid-Sized Business Unit).

Information gathering

HMRC has reported that 5.67m accounts were reported to it under the CRS last year, relating to around 3m UK taxpayers with offshore financial interests. HMRC has also reported that the requirement to correct rule led to more than 17,000 disclosures, which it says has so far resulted in around £122m being recovered through the worldwide disclosure facility. This is another example of the strategy of requiring taxpayers to approach HMRC on their own initiative rather than HMRC having to investigate or start an enquiry. This strategy is not restricted to individual taxpayers: on the corporate tax side, 2019 saw the introduction of the diverted profits tax compliance facility, but it is not yet clear how much uptake there has been.

It has also been reported that information requests made by HMRC to overseas authorities have increased by more than 20% in the last year; and requests made to the UK from overseas authorities rose by more than 40% from 2017 to 2018. The question, of course, remains whether HMRC has the resources to deal with all of the additional information it is receiving; it has admitted recently that it is behind where it should be on opening investigations into taxpayers with offshore assets.

Civil information powers

It is clear that HMRC considers its information gathering powers critical to its ability to challenge tax non-compliance. At the time of writing, we await HMRC’s response to the consultation on its proposed extension to third party information powers under FA 2008 Sch 36. Aspects of these proposals raise concerns as to the erosion of taxpayer safeguards, in particular as HMRC intends to remove the requirement for HMRC to obtain approval from the tribunal or the taxpayer before issuing a third-party notice.

In the meantime, HMRC received a number of boosts in relation to its information gathering powers in 2019 as follows:

  • In R (on the application of Jimenez) v HMRC [2019] EWCA Civ 51, the Court of Appeal permitted HMRC to issue an information notice to a non-UK resident individual under FA 2008 Sch 36 para 1, finding that the issue of such information notices was not subject to any territorial limitation. The Court of Appeal held that a taxpayer notice could be served on any UK taxpayer wherever resident, reinforcing another of HMRC’s areas of focus, namely to pursue complex multi-jurisdictional cases involving offshore interests.
  • In Mr and Mrs PQ v HMRC [2019] UKFTT 371 (TC), the First-tier Tribunal held that HMRC is entitled to serve third party information notices on non-UK residents under FA 2008 Sch 36 para 2 where a ‘sufficient connection’ exists between the intended recipient and the information sought to be obtained.

It is expected that the number of information requests issued to non-residents will increase in 2020 as HMRC makes use of its enhanced extra-territorial powers.

Directors’ liability in insolvency

The draft Finance Bill 2019/20 introduced a new measure extending HMRC’s powers to tackle tax abuse in insolvency. Broadly, the draft rules make provision for a person to be held jointly and severally liable for amounts payable to HMRC by a company in certain circumstances involving insolvency or potential insolvency, where that person is a director of the company. This reinforces HMRC’s recent focus on corporate abuse of the insolvency regime to avoid tax.

Given that the scope of these measures is potentially very wide, there are a number of questions as to how these new rules will apply. There is currently no clarity as to the threshold required for individuals to be deemed ‘responsible’ for the relevant behaviour and there is also no clarity as to when HMRC will consider there to be a ‘serious possibility’ that the tax liability may not be paid by the company.

The courts

The role of the courts in resolving disputes between taxpayers and HMRC is critical in addressing the balance between HMRC’s powers and duties, and taxpayers’ rights. Although the threshold for bringing an application for judicial review remains high, and such actions are expensive and time-consuming for taxpayers, reported data indicates that there continue to be relatively high numbers of cases brought by taxpayers seeking to challenge HMRC’s use of its powers.

More generally, there has been a number of important decisions in relation to tax administration, procedural and enforcement challenges. Whilst HMRC continues to have a reasonably high success rate, there have been several important decisions in favour of the taxpayer. These indicate that the higher courts, in particular, are starting to take a more robust approach to countering aspects of HMRC’s conduct.

Notable decisions in favour of taxpayers

One emerging line of case law involves challenges to the ever-increasing delays by HMRC in progressing or resolving disputes with the taxpayer. The courts appear to have recognised that, where HMRC has made a discovery of an under-assessment of tax but fails to act promptly in issuing an assessment, such a discovery may become ‘stale’, rendering the assessment invalid.

The concept of ‘staleness’ was upheld by the courts in a number of cases, including Beagles v HMRC [2018] UKUT 380 (TCC), Hargreaves v HMRC [2019] UKFTT 244 (TC), HMRC v Tooth [2019] EWCA Civ 826 (although the ‘staleness’ question was not directly in issue) and, most recently, Jafari v HMRC [2019] UKFTT 692 (TC).

In Jafari, the First-tier Tribunal was extremely critical of HMRC for failing to address ‘staleness’ in its pleadings; the judge said that this amounted to a failure by HMRC ‘to meet its obligation to "help the Tribunal to further the overriding objective" of dealing with cases fairly and justly’. This decision reinforces the critical role of the courts in protecting taxpayer safeguards against inappropriate or unfair decisions made by HMRC. It is likely that cases regarding delays will increase in 2020 as HMRC continues to receive an increased volume of data without adequate resources to progress its enquiries.

Since 2014, HMRC has issued over 81,000 accelerated payment notices (APNs) which has resulted in a yield of over £8.7bn. As there is no right of appeal against an APN, any challenges to HMRC’s powers in this regard must be brought by way of judicial review. 2019 saw some notable successes for taxpayers who brought such challenges: in R (on the application of Haworth) v HMRC [2019] EWCA Civ 747, the Court of Appeal quashed follower notices on the ground that HMRC had been wrong in considering that a judicial ruling had been relevant to the arrangements. Further, in R (on the application of Locke) v HMRC [2019] EWCA Civ 1909, the Court of Appeal quashed another follower notice; this was the second set of follower notices quashed by the Court of Appeal in six months. The Court of Appeal said ‘caution … must be used to ensure that the serious consequences for the taxpayer of HMRC’s power to issue follower notices and accelerated payments notices mean that that power must be kept within narrow bounds’. This demonstrates the crucial role of the court in ensuring that HMRC exercises its powers in a fair and proportionate way.

Finally, in R (on the application of Derry) v HMRC [2019] UKSC 19, the Supreme Court found in favour of the taxpayer, reinforcing the importance of HMRC complying with the correct enquiry procedure in accordance with the legislation.

Notable decisions in favour of HMRC

Whilst there are some positive signs that the tide may be starting to turn, unsurprisingly there were also some decisions this year which raise alarm bells from the taxpayer perspective. An example of this is Cliff v HMRC [2019] UKFTT 564. Here, the First-tier Tribunal interpreted ‘deliberate’ as ‘a conscious choice to act in a certain way’, concluding that there was no requirement to show an intention not to pay tax or to act without good faith, thereby eroding the behavioural distinction between ‘careless’ and ‘deliberate behaviour’. This could mean that taxpayers who take a bona fide view of the law and act with care may still be subject to the sanctions that attach to ‘deliberate’ behaviour.

It remains a high hurdle for a taxpayer to establish that it has a legitimate expectation as to its tax position on the basis of HMRC guidance or statement. In R (on the application of Aozora GMAC Investment) v HMRC [2019] EWCA Civ 1643, the Court of Appeal concluded that a statement in HMRC’s International Manual could in theory establish a legitimate expectation but that the taxpayer had failed to show that HMRC departing from its published guidance would be ‘so unfair as to amount to an abuse of power’. However, this can be contrasted with the decision in R (on the application of Cobalt Data Centre 2 LLP and Cobalt Data Centre 3 LLP) v HMRC [2019] UKUT 342 (TCC), where the Upper Tribunal found in favour of the taxpayer, concluding that there was a legitimate expectation formed on the basis of HMRC practice set out in correspondence between HMRC and an industry body.


Looking ahead, although tax is a policy battleground between the main political parties on the eve of the general election, each party has indicated that it will introduce measures to tackle tax avoidance and evasion. Therefore, whilst the precise scope of such measures differs according to each party, whatever the outcome of the election, we can expect that the next government will introduce further clampdowns on tax non-compliance. For UK taxpayers, the tax regulatory burden and the increased prospects of an HMRC investigation are here to stay.

The authors thank Alison Cartin, associate director in the private client team at BCLP, for her contribution to this article.