Cox v HMRC: Upper Tribunal clarifies penalty suspension criteria

The Upper Tribunal has dismissed an appeal concerning HMRC's refusal to suspend penalties for careless inaccuracies, clarifying the circumstances in which suspension may be appropriate under Schedule 24 to the Finance Act 2007.

Philip and Debra Cox were shareholders in David Williams IFA Holdings Ltd who disposed of their shares in 2019. Prior to disposal, they gifted shares to other shareholders, reducing their individual holdings below the 5% threshold required for entrepreneurs' relief (now business asset disposal relief). Despite this, they claimed the relief in their 2019/20 self-assessment returns.

HMRC assessed penalties for careless inaccuracies totalling over £32,000, applying the minimum 15% rate after maximum mitigation. The appellants requested suspension, proposing various conditions including commitments to seek independent advice and hold formal meetings with their accountant to review returns before submission.

HMRC refused suspension on the grounds that no future careless errors could be identified that would be avoided by setting conditions. The officer noted the inaccuracy arose from a one-off event and there was no underlying weakness in the appellants' record-keeping systems. The First-tier Tribunal upheld this decision.

The Upper Tribunal granted permission to appeal on four grounds, primarily challenging whether HMRC had unreasonably fettered its discretion by applying internal guidance requiring conditions to meet "SMART" criteria (specific, measurable, achievable, realistic, and time-bound), and whether this effectively precluded suspension for one-off errors.

Judges Zaman and Dean acknowledged that paragraph 14 of Schedule 24 does not require a link between the type of inaccuracy giving rise to the penalty and future potential inaccuracies. The legislation focuses on whether compliance with conditions would help the taxpayer avoid future penalties for careless inaccuracy, emphasising behavioural improvement rather than similarity of errors.

However, the tribunal found this legal principle did not assist the appellants. HMRC's decision was not based on requiring similar future inaccuracies but on the inability to identify any future careless errors that suspension conditions could prevent. The tribunal emphasised that paragraph 14(3) envisages scenarios where no appropriate condition can be specified.

The factual context proved decisive. For two decades, the appellants had accurately completed tax returns using established procedures with their accountant. The proposed condition of holding face-to-face meetings merely replicated their existing electronic communication method. HMRC had identified no systemic weaknesses requiring remediation.

The tribunal rejected the argument that conditions need only bring careless taxpayers up to the standard of reasonable and prudent taxpayers. Whilst paragraph 14 aims to improve behaviour, it requires identifying specific actions addressing the causes of the original carelessness. General commitments to exercise greater care, even if more formally structured, do not satisfy the statutory test where existing practices were already adequate.

The Upper Tribunal distinguished earlier cases including Eastman v HMRC, noting that suspension remained possible for one-off events where genuine behavioural improvements could be identified. The appellants' error resulted from not seeking updated advice following changed circumstances, but their established practice of obtaining professional advice meant the proposed conditions offered no meaningful improvement.

The decision reinforces that HMRC's discretion to suspend penalties must be exercised by reference to the particular taxpayer's circumstances and the specific causes of their carelessness. Where historical compliance has been satisfactory and no identifiable weakness exists, suspension may be inappropriate regardless of how conditions are formulated. The tribunal confirmed that applying SMART criteria to assess whether conditions meaningfully address future risk does not constitute an unreasonable fetter on HMRC's discretion.

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