By Mark Blayney,
a business rescue expert,
Carrshield, Newcastle, U.K.

help at turnaroundhelp co uk
http://www.turnaroundanswers.co.uk

HM Revenue and Customs (HMR&C) have lost their old rights in insolvencies to rank as preferential creditors, so standing first in line for some of the funds available. Nowadays they are now broadly treated like any other creditor. So, if you are having difficulty paying VAT or PAYE on time they will be more at risk than they used to be and have to be more careful to ensure they are paid. But it is still possible to obtain support from the taxman if you have arrears and this article covers how to do so.

HMR&C position

HMR&C has always seen itself as having a duty to act fairly between tax payers as a matter of public policy. In some cases this translated into a view that HMR&C cannot can be seen to give businesses which are not paying their taxes, any form of advantage over those that are.

HMR&C also sees itself as an involuntary creditor in that it does not choose to provide your business with credit in the same way as a supplier which, for example, can decide not to supply you unless you pay up front. Since they cannot 'put you on stop until you pay', their traditional route for ensuring payment has been to use strict rules about when payments are to be made, enforced with high charges for failure and aggressive recovery action for non payment, from seizing goods for sale through distraint, to petitioning to have the company wound up.

Failing to pay your ongoing PAYE or VAT liabilities is therefore regarded by HMR&C as not only a failure to comply with your legal requirements, but also as a clear signal of your potential insolvency, which is now an even more serious issue for them since the loss of their preferential status.

HMR&C has however always been prepared to negotiate time to pay agreements where appropriate, and it is also subject to the will of the Government. Through the recent recession HMR&C has had to deal with a wave of requests from companies in difficulties for time to pay agreements through its Business Payments Support Service. Statistics quoted vary but it seems that agreements had been reached with over 250,000 companies on payment plans by early 2010.

Given the number of requests for help being received, HMR&C's ability to screen the proposals coming in was limited and inevitably therefore many of these plans are not performing as promised.

As a result, HMR&C are now starting to become more aggressive, both in chasing these companies for the sums due and in negotiating any new agreements, and for example, from 1 April 2010 they are requiring that an independent report be prepared on any new deal seeking to defer a liability of over £1 million.

What to do if you have VAT or PAYE arrears

The first thing to say is that you cannot 'do nothing', as HMR&C is well practiced in taking recovery action and will do so if nothing else is done.

If arrears of tax are building up then it is best to be proactive and to seek a manageable time to pay agreement. You need to carefully prepare a reasonable cash flow forecast giving you have a clear and realistic picture of what you are going to be able to afford to pay in respect of the arrears. When preparing your forecast, bear in mind that a condition of HMR&C agreement will normally be that all future sums will be paid strictly on the date they fall due.

If you don't think you are going to have enough cash to trade through then you need to be taking insolvency advice immediately.

Remember that this will, to an extent, be a negotiation, so HMR&C may ask for some initial upfront payment as a condition of the deal, or may ask for payment over a shorter period than you propose. Many insolvency, turnaround and other finance professionals have extensive experience of negotiating deals of this type with the taxman and you may find it useful to employ such an expert to negotiate on your behalf.

And once you have a plan agreed, the first rule is keep to it, and the second is, if you can't keep to it speak to HMR&C before you default to let them know and to tell them how you plan to catch up, not after.

Consider using insolvency rescue procedures

If you are not in a position where you can look to trade through the situation using a time to pay agreement, for example if HMR&C want payment more quickly than you think you can afford, then you may need to consider using some of the protection mechanisms provided by insolvency legislation.

A Company Voluntary Arrangement (or 'CVA') can be used to agree a binding deal with creditors including HMR&C and is usually used where a company is currently insolvent but has a fundamental underlying viability. The proposal may be to pay off the debt over time, or making a part payment as a full and final settlement, and it allows you to remain in control of your business.

An Administration can be used as a shield by the company to protect it against legal actions while a CVA is put in place. It can also be used to allow the sale of the business to you or another party. If you buy it back from the Administrator, be warned that HMR&C may then ask you to pay a bond against future tax liabilities.

Are you risking personal liability?

With any loss to creditors in an eventual insolvency, where you continued to trade after the point where you should have known to stop then you can potentially be held personally liable for wrongful trading.

This principle applies as much to tax debts as to any other and being seen to trade using 'Crown monies' is also a factor that the authorities will consider if looking at taking disqualification proceedings against you as a director.

So, if you have tax arrears building up you must keep careful notes on the decisions you make, the discussions you have with HMR&C and seek appropriate professional advice.

Of course the information contained in an article like this can never be a full statement of the legal position as the relevant laws are complex and liable to change. This article is only a general guide as to the issues involved and you must always seek your own appropriate professional advice on your particular circumstances before taking any action.

Mark Blayney is a UK Institute for Turnaround accredited business rescue expert specialising in owner managed businesses. For more information on difficulty paying VAT; a free copy of his 13 Key Steps Guide to managing a crisis and a turnaround; or a free referral to a local expert, contact him at: http://www.turnaroundanswers.co.uk

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Published - August 2010