The vast majority of UK taxpayers pay what they owe in full and on time. Her Majesty’s Revenues and Customs (HMRC) thinks that a persistent minority choose not to pay which provides an undeserved advantage to those who are wilfully seeking to play the system, and creates costs which are ultimately borne by the compliant majority.

The Chancellor announced in the 2014 Budget a proposal for the Direct Recovery of Debts (DRD), which HMRC thought would be an important tool in helping to level the playing field between those who pay what they owe, when they owe it, and those who do not. The resulting outcry from professionals and debt charities led to HMRC issuing a consultation which closed in July 2014. HMRC’s response to the DRC consultation has now been published. In short, HMRC is proceeding with the power, but is making what appear to be aesthetic tweaks to the way in which HMRC conducts itself (and how it reports back) – presumably in an attempt to alleviate concerns that this power is akin to using a sledge hammer to crack a nut.

New Safeguards

In response to what they heard during the consultation, the Government is introducing:

  • a guaranteed face-to-face visit for every debtor who is considered for debt recovery through this measure;
  • additional support for vulnerable customers;
  • strengthened governance processes; and
  • a new appeal route for debtors to take their case to a County Court.

Insolvency aspects

There is some specific comment on the impact of DRD and insolvencies, namely: 

  • A number of respondents raised concerns about the potential interaction of DRD with insolvency proceedings. Some believed that HMRC could exercise its DRD power directly before, or during, an insolvency. In the process, it would gain an advantageous position over other creditors. Some respondents described this as “Crown Preference by stealth”, a reference to the situation pre-2002 where some tax debts received preferential status in the event of insolvency.
  • Members of the banking community were concerned that these proposals could affect their own position in insolvencies. Banks and building societies often hold fixed charges such as mortgages. These are paid ahead of unsecured creditors. They were concerned that this may impact a bank’s right of set-off as well as where a lender’s facilities may run across groups of companies with cross default provisions.
  • The Government is clear that this is not the intention of DRD, but acknowledges respondents’ concerns that HMRC could inadvertently find itself in such a position. It is therefore committing to ensure that HMRC does not receive any advantage during insolvencies through its use of DRD. It will continue to work with experts to make sure the legislation achieves this outcome.

General points to note

The response also states that “the Government is absolutely clear that this policy is aimed at the ‘can pay, won’t pay’ population of debtors” and is therefore guaranteeing that every debtor will receive a face-to-face visit from HMRC’s agents before their debts are considered for recovery through DRD.  In addition, the document states that HMRC will:

  • establish a new vulnerable customers unit;
  • apply DRD to a “smaller number” of cases in the first year of its operation;
  • extend the window for debtors to object to HMRC from 14 days to 30 days;
  • introduce an option for debtors to appeal against HMRC’s decision to a County Court on specified grounds, including hardship and third party rights;
  • have its governance procedures strengthened, including oversight by the Commissioners of HMRC;
  • publish statistics on the number of times DRD is used and appeals that are raised in the Tax Assurance Commissioner’s Report;
  • conduct a full review of DRD, covering its implementation and impact on customers after the policy has been operational for two years, and lay this report before Parliament; and
  • not implement the requirement for banks to provide 12 months of data on a debtor’s account history under DRD.

Draft legislation will be published in due course for consultation- possibly part of the Autumn Statement scheduled for release on 10 December 2014.