Traders, IVAs and HMRC – Part 2

Self Assessment Returns

A trader proposing to do an IVA should be aware that HM Revenue & Customs (HMRC) now try and insist on completion of Self Assessment (SA) returns before supporting the proposal.

This is because for self employed debtors, it is unlikely that HMRC will be able to submit a final claim in the IVA much earlier than ten months after the approval of the IVA and in practice it can be much longer than that – up to twenty two months where debtors are tardy in submitting their returns.

HMRC much prefer that the debtor demonstrates his compliance by submitting all returns quickly so that, in turn:

1. the Supervisor of the IVA has an accurate final claim from HMRC instead of a potentially inflated estimate
2. earlier payments of dividends to all creditors may be made
3. no delay occurs in the finalization of the IVA

Summary 

1. HMRC cannot know a debtor’s SA liability until he submits a return.
2. HMRC cannot make a final claim until the debtor has submitted returns relating to the years up to 5th April following the date of approval of the IVA.
3. SA returns do not become overdue for up to twenty two months after the date of approval of the IVA.
4. HMRC cannot estimate the liability until the return is overdue.

Accordingly, where HMRC support an IVA (vote to accept the proposal) either the overdue returns have been submitted prior to approval of the IVA or its approval is conditional on the returns being submitted within three months of the date of approval. This three months window is only permitted in exceptional circumstances. HMRC also expect Income & Expenditure and cash flow forecasts to provide for future tax liabilities and they expect to see a guarantee within the proposal that future returns and payments will be provided on time.

Reviewing Proposals & Improving the Offer

HMRC reserve the right to discuss the content of a proposal and supporting documentation with any listed creditor or any creditor confirmed by the nominee. If a proposal is inadequate, HMRC will ask for the offer to be improved and expect the debtor to change the proposal voluntarily. If this is not forthcoming, HMRC will propose modifications.

Exceptional Reasons for Rejecting IVA Proposals

In the first article we looked at some of the routine reasons where HMRC will reject proposals and the factors which incline HMRC to support proposals. There are also some exceptional reasons which cause proposals to be declined. These are some examples:

1. deliberate default or evasion of statutory liabilities or past association with contrived insolvency
2. operating a policy of withholding payment of Crown money
3. any proposal that requires sale of HMRC debt or does not provide cash
4. failure to meet any obligations under a prior individual voluntary arrangement
5. exclusion of creditors who are entitled to receive the same treatment as all others within their class
6. a purchaser assuming responsibility for payment of some of the debtor’s debts in consideration for the purchase of the debtor’s assets
7. any proposal by any member of any organisation that requires debts owed to its members to be paid in full, whether inside or outside of the arrangement or before or after completion of the arrangement when all other unsecured creditors will become bound to accept a compromise of their debt. Here ‘members’ includes any prescribed associate(s) or other creditor(s) specified by the organisation