LITRG: Two-tier system for HMRC penalties creates unfairness

In a new paper, Self assessment late filing penalties: improving fairness for unrepresented taxpayers,¹ LITRG also sets out a series of interim steps that could be taken to smooth out the difference between the two regimes if early implementation is not possible. 

A new penalty regime was introduced in April 2024 and is initially being rolled out to volunteers in the Making Tax Digital for Income Tax (MTD for ITSA) programme.² Taxpayers outside of MTD for ITSA will continue under the current penalty regime, as HMRC have been unable to put a timetable on the roll-out of the new regime for these taxpayers. They cite IT limitations as the reason for the delay. 

HMRC have described the new penalty regime as “simpler and fairer”. Under this system, taxpayers face a £200 fixed penalty for missing a tax return deadline, but only if they miss it more than once. 

By contrast, filing late for the first time under the existing penalty regime (introduced in 2010) can attract fines which escalate to at least £1,600 for a 12-month delay. LITRG is concerned that those on lower incomes and those with poor digital literacy skills are likely to remain on this harsher regime for longer. This will include some taxpayers who receive a late filing penalty despite not earning enough to pay income tax.³  

If HMRC cannot overcome their IT limitations and roll out penalty reform to all taxpayers as soon as possible, LITRG has suggested a number of options to help make the existing system fairer. They include: 

• Greater leniency so that first-time missed deadlines do not incur penalties. 
• Easier exit from self assessment for those who no longer need to file a return. 
• Automatic cancellation of late filing penalties for those in self assessment who are found to no longer need to file a return. 
• Replacing self assessment with simple assessment for taxpayers with Pay As You Earn (PAYE) tax debts. 
• Ensuring GOV.UK guidance on self assessment matches the legal requirements for filing a tax return.  

Victoria Todd, Head of LITRG, said: 

"HMRC have acknowledged that their new penalty system will be simpler and fairer compared to the current regime, so it is frustrating that the timetable for its roll-out to all taxpayers is uncertain. 

“Having two different penalty regimes operating at the same time will be confusing. For those remaining on the old regime, it will also be costly, as penalties for the same missed deadline can apply more easily and can be up to 8 times higher than those under the new system. 

“We urge HMRC to bring in the new penalty regime for all taxpayers as soon as they can, but if this is not possible, there are a series of tweaks they could make to the existing regime that will bring it closer to its replacement. 

“These will help mitigate the harshness of the existing regime, the unfairness created by a two-tier penalty regime and, importantly, will offer some protection for low-income taxpayers from the implications from the slow progress of the roll-out." 

Notes for editors 

1. LITRG’s report can be read here.
2. MTD for ITSA is expected to be mandatory from April 2026 for taxpayers with more than £50,000 of gross income from self-employment and property and April 2027 for taxpayers with more than £30,000 of gross income from self-employment and property. 
3. According to a Freedom of Information Request earlier this year, HMRC issued 155,000 late filing penalties in 2021/22, including 95,000 people who had not earned enough to pay income tax. 
   
   This might include sole traders who register for self assessment but whose profits are not high enough to generate a tax liability, or cases where taxpayers file a tax return late despite no longer meeting HMRC’s self assessment criteria for the year. See the news brief, 95,000 with low incomes and no tax liability suffer £100 penalties (RSM UK, 26 June 2024).