The 2020 Finance Act, which received Royal Assent on 22 July, introduced new powers for HMRC to enforce Directors’ personal liability for historic unpaid taxes.
These provisions have been introduced to allow HMRC to make directors liable for tax and other liabilities generated through utilising limited companies for tax avoidance or evasion, or through repeated insolvencies. These provisions are designed to change the behaviour of those who misuse company insolvency to retain the proceeds of their tax avoidance or evasion, or from the facilitation of avoidance or evasion by other persons.
The new regime allows HMRC to issue notices to directors and others connected to a company, making them jointly and severally liable for any amounts that become due to HMRC as a result of the avoidance, evasion, facilitation of avoidance or evasion, or repeated insolvencies. A Members’ Voluntary Liquidation will only be regarded as an insolvency procedure for the purposes of these provisions if the period of 12 months from the commencement of the winding up (being the maximum amount of time set by insolvency legislation for the company to pay its debts) is passed, or the company is wound up, without the company’s debts being paid in full, together with interest.
HMRC may issue a joint liability notice to an individual where it appears that one of the following conditions is met:
- The company has engaged in tax avoidance or tax-evasive conduct.
- The individual has been involved in running at least 3 companies and at least 2 of those have become subject to an insolvency procedure.
- The definition of “Repeated Insolvencies” is that: During the five years prior to the notice, the person had at least two companies which have become subject to an insolvency which had a) TOTAL outstanding amounts due to HMRC of over £10,000 and b) the tax debts represent more than 50% of the total amount due from those companies to their unsecured creditors, and
- The person has a new company which is or has been carrying on a trade similar to that of at least two of the old companies.
The person receiving the notice is jointly and severally liable for:
- Any amounts due to HMRC from the new company at the time when the notice is issued.
- Any amounts due to HMRC from the new company which arise during a period of five years from the issue of the notice.
- Any amounts still due to HMRC from the old companies.
The government is clear that the majority of insolvencies arise as a consequence of genuine financial difficulties, and that this reform is targeted at the minority that seek to misuse insolvency to avoid meeting tax liabilities. Notwithstanding, these provisions will increase the pressure on those running distressed companies and tax diligence expectations.
HMRC reinstated as a preferred creditor.
The 2020 Finance Act has, in addition, reinstated HMRC as a preferential creditor in any insolvency effect from 1 December 2020. The Government argues that currently it loses billions in potential taxes and this is a way for them to re coup some of this.
HMRC have admitted that:
- This measure will impact on secured creditors who hold floating charges, and unsecured creditors that are involved in an insolvency where HMRC is also a creditor and funds would otherwise be available to those creditors. Prioritising the recovery of HMRC’s debt reduces or eliminates the distributions to those creditors.
- This measure will impact on all businesses and civil society organisations who are creditors involved in an insolvency where HMRC receives a dividend on its secondary preferential claim.
- Prioritising the recovery of HMRC’s tax debt could mean that banks, in particular, are affected as they are the main holders of floating charges. They, along with other creditors, could receive a reduced dividend and may change their lending practices as a result of this measure.
The government says that, “The measure will be kept under review through communication with affected taxpayer groups.” However, the government has brought this in against the strongly expressed views of the insolvency profession and there must be doubt as to whether the government will want to be seen to do a U-turn if the impact is as they were warned.
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