We were recently successful in challenging HMRC penalties for late filing in relation to annual Employment Related Securities (ERS) reporting. In the case in question, a company had submitted an online ERS return the previous year relating to a one-off share event, being an acquisition of shares by an employee.
Quite reasonably, the company did not appreciate that HMRC expected an ERS return to be submitted the following year, bearing in mind there was no share scheme and no events had taken place. Without providing the company with a reminder that a return would be due, HMRC proceeded to raise late filing penalties when the return was not submitted.
HMRC argued that a nil return was due for all subsequent years regardless of whether there were any share events. The manner of the penalty was concerning in that it provided no details of which legislative provisions it was based on, even after the penalty had been appealed.
According to HMRC, annual returns are to be submitted on or before 6th July each year and returns, including nil returns, “must be submitted for any and all schemes that have been registered on the Employment Related Securities online service.”
They argued that, “A return is required even if you have:
- Have made an appeal/Had an appeal allowed
- Rely on a third party to submit the return
- Ceased the scheme by entering a final event date
- Registered the scheme in error
- Registered a duplicate scheme
- Did not receive a reminder
- Have changed accountant/agent/staff
Once a scheme or arrangement has been registered on the service and remains live, you have a continuing annual obligation to submit an electronic end of year return by the deadline.”
The actual legislation states that a return is required for each tax year falling in the personʼs “reportable event period”. A personʼs “reportable event period” is defined under s.421JA(3) as:
- beginning when the first reportable event occurs in relation to which the person is a responsible person, and
- ending when the person will no longer be a responsible person in relation to reportable events.
Clearly the legislation is somewhat unclear, however there was a strong argument that where no future reportable events were envisaged they would no longer be within a reportable event period.
We were able to get HMRC to withdraw the penalties on the basis that there was no employee share scheme, and therefore no ongoing obligation under the actual legislation to file returns. One suspects HMRC will not be changing their policy in this regard, but it does highlight the importance of challenging them where they apply policies that go further than the actual law.