Andrew McQueen
As well as charging interest on tax paid late, HMRC may also levy a penalty where there is an error in a tax return. These penalties may be judged as careless or deliberate, and the level of penalty will also depend upon whether or not;
- the taxpayer has been upfront, making unprompted disclosures to correct the error;
- the error was deliberate; and
- the error was concealed from HMRC.
This matter is topical following the recent sacking of the former Chancellor of the Exchequer and Chairman of the Conservative Party, Nadeem Zahawi, who was adjudged to have been careless in reporting capital gains and allegedly received a 30% penalty.
The amount of the penalty is based on the Potential Lost Revenue (PLR), and the range of penalties is set out in the table below:
| Behaviour | Disclosure by taxpayer | Penalty range |
| Careless | Unprompted | 0% to 30% |
| Careless | Prompted | 15% to 30% |
| Deliberate but not concealed | Unprompted | 20% to 70% |
| Deliberate but not concealed | Prompted | 35% to 70% |
| Deliberate and concealed | Unprompted | 30% to 100% |
| Deliberate and concealed | Prompted | 50% to 100% |
Higher maximum penalties may apply when offshore matters are involved.
Where HMRC issue the taxpayer with a “nudge” letter that would be regarded as a prompt from the department and thus potentially increases the level of penalty that might be imposed.
The law defines ‘careless’ as a failure to take reasonable care and needs to have consideration of the taxpayer’s abilities and circumstances. In HMRC’s view, it is reasonable to expect a person who encounters a transaction or other event with which they are unfamiliar to take care to find out about the correct tax treatment or seek appropriate advice. A taxpayer who can demonstrate that they acted on professional advice from a person with the proper expertise will normally be able to prove they take reasonable care.
HMRC may reduce or mitigate the penalty depending on the quality of the disclosure. Still, any such reduction will not take the penalty percentage below the bottom of the stated range. The disclosure quality is based on three factors – ‘telling’, ‘helping’, and ‘allowing access to records’.
HMRC may also suspend a penalty if it can be demonstrated that controls can and will be implemented to prevent the matter from occurring again.