I’m sure you have all seen the HMRC guidance note, “Deemed Consent Procedures”, but what does it actually mean? I have asked HMRC and received some answers.
The guidance note can be found at: https://www.icaew.com/-/media/corporate/files/regulations/regulatory-news/april-2022-deemed-consent-procedures-update.ashx (amongst other places).
“Deemed Consent Procedures” only?
R3 notified members of the guidance note under the heading, “HMRC Insolvency Guidance – Deemed consent procedures”. Similarly, the IPA piece read: “HMRC update: we draw your attention to an update from HMRC on deemed consent procedures” and the ICAEW news heading was “April 2022: Deemed consent procedures update”. The emphasis on the deemed consent process in the R3/RPB emails was not surprising given the title of the HMRC note, but does this reflect HMRC’s message?
Firstly of course I think it can be assumed that HMRC was not writing about all deemed consent process notices, e.g. notices proposing to extend an administration. The note’s contents make clear that it applies only to “initial notification of a CVL”, by which I assume they mean the pre-CVL S100 notice, not the initial notification after the CVL has begun.
But did HMRC intend the change to affect only S100 deemed consent notices? Nowhere in the HMRC note was any mention made of virtual or physical meeting notices.
A changed email address?
The original Dear IP article (chapter 8 article 26) and corresponding R3/RPB bulletins that notified us of the HMRC request to email S100 notices gave an email address of firstname.lastname@example.org, whereas the latest guidance note gives a different address: email@example.com (and incorrectly states that this was the email address that was given in January 2018).
Has HMRC got the email address in its new guidance note wrong? Or have they changed the email address? At present, the old one works.
After a couple of attempts, HMRC responded to my queries as follows:
Our recent comms note should have reflected the same instruction as the Dear IP article, with the only difference being that we now want IPs to stop using the mailbox where there is a compliance interest (as defined in our recent comms note). HMRC would like all S100 notices to be delivered in the same manner and to a compliance caseworker or the mailbox where there is no active interest.
Thank you. So we can ignore the misleading title of the HMRC guidance note: all S100 notices – for virtual or physical meetings and for deemed consent processes – should be emailed to their mailbox or, where there is a compliance matter, delivered to the HMRC caseworker. I also gather from this response that the email address is the one described in the Dear IP article.
What is the practical effect of the change?
Ok, setting aside my gripes about the wording of the note, what change is HMRC looking for?
With effect from 1 June 2022, as quoted above, on prospective CVLs where there is an HMRC compliance interest, HMRC would like the S100 notice to be sent to the compliance caseworker, not emailed to their mailbox.
This will mean some more diligence when preparing for a S100 to establish whether there is a compliance interest and, if so, to get the details of the HMRC caseworker.
The HMRC note states that a compliance matter “could be an ongoing compliance check or other correspondence regarding determination of the amount of any of the company’s tax liabilities”. The words “could be” suggest to me that this is not an all-encompassing definition, but it seems to me that you could use this wording as a prompt in any questionnaire to directors to supply details of the caseworker where such a matter exists.
What if you don’t get full information from the directors? Surely, all you can do is ask.
Will there be an update to Dear IP?
At present, the original Jan-18 HMRC request remains in the online Dear IP bank, at https://www.insolvencydirect.bis.gov.uk/insolvencyprofessionandlegislation/dearip/dearipmill/chapter8.htm#26. I asked HMRC if they would please publish an update to this article (and/or withdraw this obsolete article) also via Dear IP, preferably making absolutely clear what HMRC now wishes.
What about a central bank for HMRC guidance notes?
While we’re on the subject, do you find it as frustrating as I do that there is no central bank for all these HMRC guidance notes? I now have a folder dedicated to all these missives, which seem quite randomly produced on all sorts of subjects. HMRC also appears to rely on the RPBs and R3 to notify members of new notes, who then often need to relay these to staff members to action.
Wouldn’t it be better if there were a dedicated free-access web space for all these notes especially for future reference, much like Dear IP?