[2011] UKFTT 814 (TC) – TC01650
The facts of the case are as under:
Mrs H was the proprietor of a business until 13 March 2010 (tax year 2009-10) employing around 90 employees. She sold the business to Mr W on 13 March 2010 when all the computer records and other information were also handed over to Mr W. Mrs H did not file the annual year-end employer P35 return. On 27 September 2010, HMRC issued a penalty, calculated at £200 per month (the business had more than 50 employees) as P35 return was not filed for the year 2009-10.
HMRC stated that the first notification they received about the transfer of the business from Mrs H was dated 3 February 2011, 11 months after the event. HMRC also contended that “regardless of the fact that a company has closed down it is still responsible for submitting the End of Year return on time.” Mrs H employed personnel during 2009-10 and so a P35 was due by 19 May 2010. It was Mrs H’s responsibility as employer to file the P35 and she could not transfer this to another person.
The tribunal observed that HMRC’s guidance, correctly reflecting the regulations, puts the responsibility for the P35 on the successor to the business. Accordingly, the obligation to complete and submit the 2009-10 P35 rested with Mr W and not with Mrs H. HMRC do clearly advise that proprietors should inform them when they sell their business, so as to prevent HMRC from sending demands or bills that one wasn’t liable for. Mrs H did not inform HMRC, a failure which appears to have been caused by her ill-health and difficulties with her accountant at the time. There is, however, no penalty for a failure to inform HMRC that a business has been sold. The penalties under appeal are for not submitting the P35, and these penalties cannot be charged on Mrs H, as she was not “the employer” when the P35 was due to be filed.
