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If you ring HMRC you should keep a note of all details of the call in case a later dispute requires proof that a call was made.

Background 

Increasingly, HMRC are encouraging taxpayers and tax credit claimants to deal with them by telephone, often through contact centres. The tax credits helpline is a prime example; claimants can ring up to check entitlement, renew their claims, notify any changes of income or circumstances, or simply ring for advice.

While business by telephone makes HMRC more accessible to the ordinary taxpayer, one of its drawbacks is that a caller might act, or refrain from acting, in reliance on what HMRC said – or, more to the point, on their recollection of what HMRC said. This can become an acute problem for the caller who does not have a professional representative with whom to double-check information and advice they receive from HMRC.

Disputes

The law, as decided by the judges, is little help to an unrepresented taxpayer. According to recently decided cases, a taxpayer who wishes to rely on an assurance given by HMRC must put their question to HMRC in writing, making it clear that they are seeking a considered opinion on which they wish to rely.

Unsurprisingly, disputes do arise. Taxpayers or claimants mis-hear or misunderstand what they are being told, or HMRC can get things wrong. The consequence, if the taxpayer or claimant relies on wrong advice or a misunderstood conversation, can be a tax liability or a tax credit overpayment that need not have occurred, and which it is difficult to displace.

The problem is usually proving that the calls were made and what was said.

It is also vital that taxpayers or claimants do not withhold any relevant information when seeking HMRC’s advice on something. 

What to do

Therefore, when dealing with HMRC by phone, it is essential to keep a careful note of:

• the date of your call;
• the time of your call;
• the name of the officer you spoke to; and
• what each of you said, paying particularly close attention to what the HMRC officer said if you intend to rely on that information.

This applies even if (indeed, especially if) the call is a short one, for example a quick call to the tax credits helpline to tell them about a change of circumstances.

What if HMRC cannot find any record of the call?

It helps if you have independent verification of having made the call – for example, an entry on a telephone bill. But not everyone uses a landline, and there are no records of calls made from pay-as-you-go mobile phones.

If HMRC deny having any recording of your call, and you cannot provide evidence of having made it, you can apply to the Data Protection (SAR) Unit for copies of the information you want – for example, CDs of telephone conversations between certain dates, and any contemporaneous records kept of those calls. These are known as ‘subject access requests’, or SARs. For tax credits, SARs should be made to:

HM Revenue & Customs – Tax Credits
Subject Access Request Team
Floor 1 Area E, St Marks House
Stanley Street
Preston, Lancashire PR1 4AT

It is important to follow up these links, because if HMRC have no record of a call, they will proceed as if there had been no call, and find in their own favour in any dispute that turns on the existence of the call. More worryingly, the Adjudicator’s Office has been known to back HMRC up on this (see below).

It is also a good idea, when disputing, to remind HMRC to listen to all relevant phone calls as Step 9 of their manual guidance requires. (See Calculate and Remit an Overpayment - for Cases Suspended On or After 30/10/06 (AG)).

Tax credits

In tax credits cases, claimants often object to having to repay an overpayment which they think is not their fault. HMRC’s practice in such cases is set out in a code of practice COP26, What Happens if We've Paid You Too Much Tax Credit? That document clearly states that an overpayment can be written off if the claimant has met all of their responsibilities, but HMRC did not meet all of theirs.

A claimant meets his or her responsibilities if, among other things, he or she tells HMRC promptly about any changes of circumstances and notifies them of any mistakes in their award notice.  HMRC fails to meet all of their responsibilities if, for example, they do not process a change in circumstances notified them by the claimant, or the helpline gives wrong or misleading advice.

On page 27 of The Adjudicator's Office Annual Report 2008, the Adjudicator recounts a tax credits case where the claimants were asked to produce telephone bills showing certain calls made to the helpline in 2003/04 and 2004/05, but they were unable to do so. The claimants said that the purpose of the calls had been to update the Tax Credit Office (TCO) about their income, but because the TCO had no records of their calls, the resulting overpayment was fully recoverable. Because the claimants could not produce their telephone bills for the period, the Adjudicator (incorrectly, in our view) upheld HMRC’s view.

During 2006, however, it emerged that during 2003/04 and 2004/05 more than 630,000 calls to the tax credits helpline were re-routed to private operators, who did not keep recordings. (LITRG raised this matter in evidence to the Treasury Sub-Committee of MPs in 2007) This gave rise to calls for HMRC to give the benefit of the doubt to claimants who said they had called the tax credits helpline during that time. In the minutes of the meeting of the Tax Credits Consultation Group on 4 December 2008, HMRC stated their position as follows:

‘Representatives asked about disputes involving telephone calls that were made during the period when not all calls were recorded. For calls made in this period where there is no record held, the claimant should be given the benefit of the doubt and staff dealing with disputes are aware of this.’

Take action

The problem of untraceable or missing telephone recordings has not gone away, and given that a lack of evidence will often tell against the claimant and in favour of HMRC, the need for claimants – and anyone contacting HMRC by phone – to follow the advice in this article is more pressing than ever.

It could be in everyone’s interest if HMRC warned callers to make a note of the call that they are about to make.