HMRC announces trustees, NOT agents, will be liable for penalties

HMRCUpdate 23 March: HMRC has updated its guidance to clarify that if a penalty is payable for late registration, it will be the burden of the lead trustee and not the agent.

We received the following communication from HMRC on 5 March 2018:

‘On 8 December 2017, HMRC announced that while the 31 January 2018 deadline for making a Trust Registration Service (TRS) return would remain in place, we would not charge a penalty if the lead trustees failed to register their trust on the TRS before 31 January 2018 but no later than 5 March 2018.

HMRC will not automatically charge penalties for late TRS returns. Instead we will take a pragmatic and risk-based approach to charging penalties, particularly where it is clear that trustees have made every reasonable effort to meet their obligations under the regulations. We will also take into account that this is the first year in which trustees have had to meet the registration obligations.

While our information suggests that most TRS returns have been filed, if you have not yet completed your TRS registration(s), you should do so as soon as possible.

When penalties can be issued

Penalties can be charged for administrative offences relating to a relevant requirement.

These are:

• a requirement to register using the TRS by the due date of 31 January after the end of the tax year in which the trustees pay tax on trust assets or income and
• a requirement to notify any change of information by the due date of 31 January after the end of the tax year in which the trustees pay tax on trust assets or income.

The administrative offences penalty

HMRC will charge a fixed penalty to reflect the period of delay:
• Registration made up to three months from the due date – £100 penalty
• Registration made three to six months after the due date – £200 penalty
• Registration more than six months late – either 5% of the tax liability or £300 penalty, whichever is the greater sum.

There is currently no facility to notify HMRC of any change of information online and, as such, we will not charge penalties for a contravention of this requirement until the online function is available.

A penalty will not be payable if we are satisfied you took reasonable steps to comply with the regulations.

HMRC also has the power to apply a penalty for money laundering offences under the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017/692.

These offences are more serious than administrative offences. HMRC will not bring these penalties in immediately. HMRC will consult on the structure of these penalties later this year, to ensure the penalty regime is fair and proportionate whilst cracking down on money laundering offences.’

It had been unclear, following this communication, whether the penalties would apply to the person dealing with the trust’s registration affairs, whether that be the lead trustee or the agent. HMRC has now confirmed that the lead trustee will become liable for the penalty, and not the agent.

HMRC has also confirmed to STEP that in scenarios where trusts have an income tax or CGT liability for previous years but are not registered for self-assessment then trustees do not need a Unique Tax Reference for this process, and HMRC recommends that the trustees submit an IHT100 as soon as possible.

Emily Deane TEP is STEP Technical Counsel

One thought on “HMRC announces trustees, NOT agents, will be liable for penalties

  1. I could only get on to the register towards the end of February (despite repeated contact with HMRC and just before I was out of the office for a week), thanks to an on the ball HMRC person who spotted straight away what the problem was (postcode they had was for one of partners home addresses, not our office one). Given that I had advised on paper of the two entities with a liability for 2017, there is clearly no risk of tax loss (and no other risk I can see) from the rest of our trusts which already have UTRs not being registered by 5 March. I sincerely hope HMRC will not just issue blanket penalties and leave us to appeal – time consuming and costly, but somehow I can’t see them looking at each case before they press the penalty notice button!

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