For business owners, it is important that they can identify and record every bank deposit where possible. Inevitably however, human error can cause the odd unidentified bank receipt to be overlooked. If this has been paid into a ‘mixed’ account, i.e. an account used for both business and private purposes, or even a personal account, then this can cause a major headache when HMRC start to poke their nose into the tax affairs of the business.
Where bank receipts that have not been declared on the tax return because they were non-taxable in the first place but have not been properly substantiated as such, then HMRC will seek to tax that income on the basis that it is undeclared business income. So, what might have been a gift or a loan from a family member or friend but was forgotten about during the passage of time, could cost the poor old taxpayer a fair amount of money in back tax, interest and even penalties. It doesn’t end there however, because the Revenue may assume that similar errors occurred in other tax years based on the ‘presumption of continuity’. This principle was established following the 1973 case of Jonas v Bamford, in which the judge stated:
“Once the Inspector comes to the conclusion that, on the facts which he has discovered, [the appellant] has additional income beyond that which he has so far declared to the Inspector, then the usual presumption of continuity will apply. The situation will be presumed to go on until there is some change in the situation, the onus of proof which is clearly upon the taxpayer.”
Thankfully the courts and tribunals have not always agreed this approach and therefore even if HMRC refuse to accept a taxpayer’s account of previously unexplained bank receipts, the department cannot rely on the tax tribunal agreeing with them. This was demonstrated in the First-Tier Tax Tribunal case of Bekoe v HMRC .
Edwin Bekoe was originally from Ghana but came to live and work in the UK as an IT specialist. During the year ended 5th April 2010 he had a full-time job with a large IT company and also worked as a consultant for his former employer, also a big IT company.
Mr Bekoe had two brothers who lived in London and one of them held an account with Barclays to which Edwin Bekoe was given access to on a non-exclusive basis for his self-employed activities in 2009/10. HMRC concluded that this was a business account and that two cash deposits of £6,740 and £14,160 were undeclared taxable trading income. Mr Bekoe disputed this on the grounds that the monies were in fact loans from family and friends.
Bekoe’s mother-in-law was a teacher who had decided to set up a school in Ghana in 2009. Bekoe contributed £21,000 towards the costs of setting up the school, of which £14,160 had been loaned to him by a contact of his wife and which was subsequently repaid by his father.
The lack of certainty about the sources of the Barclays deposits meant that the monies must be treated as trading income. However, not only did HMRC decide that further tax was due for 2009/10 but, applying the principle of continuity, they made discovery assessments for 2008/09, 2010/11 and 2011/12, presuming that Bekoe’s behaviour had not changed from 2009/10.
The tribunal disagreed with HMRC’s view and concluded that Bekoe had demonstrated, on the balance of probabilities, that the deposits totalling £20,900 were not undeclared earnings. The judge also took the view that the presumption of continuity must depend on an established pattern of behaviour or circumstances, which may be assumed to continue because they formed a predictable pattern. Such a pattern was not evident to the tribunal and Mr Bekoe’s appeal was therefore allowed.
Had Mr Bekoe lost his appeal he would have been looking at tax and penalties of just over £45,200.
It is imperative that all business owners keep robust records and evidence that details and supports any non-business receipt, to prevent HMRC from assuming and arguing that such receipts are taxable income. Failure to do so could be catastrophic.