Key Facts
- •Delphi Derivatives Limited appealed two penalty assessments issued by HMRC under Schedule 24 of the Finance Act 2007.
- •The penalties related to inaccuracies in Delphi's Pay As You Earn (PAYE) returns, stemming from participation in a tax planning scheme (the 'Scheme').
- •The Scheme involved contributions to an Employee Benefit Trust (EBT) via a service provider, with allocations to sub-trusts for loans to directors.
- •HMRC found a 'careless' inaccuracy in the 2008-09 return and a 'deliberate' inaccuracy in the 2009-10 return.
- •The total penalties under appeal were £1,572,260.16.
- •The Scheme was designed to obtain corporation tax relief while avoiding PAYE and National Insurance Contributions (NICs).
- •Delphi's accountant, Peter Tucker, reviewed the Scheme and issued a letter highlighting potential risks, including the possibility of retrospective legislation and HMRC challenges.
Legal Principles
Schedule 24 FA 2007 penalty regime for inaccuracies in taxpayer's documents.
Schedule 24, Finance Act 2007
Definition of 'careless' and 'deliberate' inaccuracies under Schedule 24.
Paragraph 3, Schedule 24, Finance Act 2007
Standard of reasonable care for taxpayers, judged objectively but considering the taxpayer's circumstances.
Case law (e.g., Collis v HMRC [2011] UKFTT 588 (TC))
Burden of proof rests on HMRC to establish the statutory conditions for a penalty.
Case law (e.g., Brady v Group Lotus [1987] 3 All ER 1050)
Agency: A company is liable for penalties even if the inaccuracy was caused by its agent, unless the company took reasonable care to avoid inaccuracy.
Paragraph 18, Schedule 24, Finance Act 2007
Definition of 'deliberate' inaccuracy: conscious action with full intention or set purpose.
Case law (e.g., Clynes v HMRC [2016] UKFTT 369 (TC), Auxilium Project Management Ltd v HMRC [2016] UKFTT 249 (TC))
Outcomes
Appeal dismissed.
HMRC successfully demonstrated that the inaccuracies in Delphi's P35 returns were 'careless' for the 2008-09 tax year and 'deliberate' for the 2009-10 tax year. Delphi failed to take reasonable care by not following its accountant's advice to seek independent counsel, and in the case of tranche 4, deliberately manipulated the scheme to increase tax savings.