Appeal Advice

[Miah]

Hi,

I was wondering if you guys could please help me and provide some advice.

My brother applied to sponsor his wife from abroad. He submitted six months wage slips, six months bank statements and all the relevant paperwork. We only had one problem and because of this problem his application has gone to the appeal stage.

He works as a Manager at a Restaurant with annual salary of £21,000. The Restaurant is new and did not have PAYE registered with HMRC but the businesses Accountant said he would register the PAYE with the HMRC but by the time he sorted everything out. The entry clearance officer had checked on the HMRC system in Dhaka and did not find the sponsor’s name on the HMRC system under the Restaurant.

The entry clearance officer rejected the application and said he did not believe the sponsor worked there. Below are the reasons why there was a delay by the accountant.

1) The owners of the Restaurant changed the company to a Limited company. This name change took a few weeks to register with the HMRC and caused a few weeks of delay.
2) Furthermore, there were delays to the setup of its PAYE due to the director’s national insurance number being incorrect. The director then departed with the company and a new director was appointed, this caused further delays.
His name appeared on the HMRC system after just 3 weeks of the entry clearance officer checking on the HMRC system. His name is now on the HMRC system as working there with Tax and NI paid. I have got a letter from the Accountant and the Restaurant stating why his name was not on the HMRC system and will send it to the judge at the appeal.
I will also send a tax code letter from HMRC with my brother’s name on and the restaurant’s name and a P60.
Is there any advice you can give me please on what I can further do to make my case stronger at the tribunal hearing.

I really appreciate your help.

Thank you

[MPH80]

I'm confused - how can he have been working there 6 months if the restaurant is new?

Please post a timeline here ... when did he start working ... when did he apply ... when did all these changes happen individually?

[Wanderer]

Also every business for the last year at least has an obligation to register PAYE on HMRC's RTI (Real Time Information) system to ensure all payments both to the employee and HMRC are recorded and up to date and in real time.

[Miah]

He started working there April 2013 and we submitted the application in December 2013. The Business Accountant was meant to pay the Tax and NI but delayed it because of the following reasons:

1) The owners of the Restaurant changed the company to a Limited company. This name change took a few weeks to register with the HMRC and caused a few weeks of delay.

2) Furthermore, there were delays to the setup of its PAYE due to the director’s national insurance number being incorrect. The director then departed with the company and a new director was appointed, this caused further delays.

The Accountant set up the PAYE and paid the tax and NI in December 2013 but before it had been processed the British High Commission in Dhaka checked the HMRC system and did not find his name as paying Tax and thats why they refused. His name appeared just 2 weeks after they checked on the HMRC system. Basically the Accountant messed up and took too long to register the PAYE.

[Frontier Mole]

The story given by the accountant is nonsense. It looks like there was problems with ownership and the set up of the business and the net result was that the first legal entity did not register for tax and NI. The second entity that now appears to operate the business looks to have set up their tax affairs properly and have.registered etc.
The bottom line - the ECO's decision was correct at the time as there was no record of tax or NI being paid. The payslips are worthless and any third party explanation by the current entity is of no consequence either.

The only thing that can retrieve the situation is a letter fro HMRC specifically stating that tax and NI has been accounted for from day one of your employment through to the end of your six month period you submitted your payslips..

I have a suspicion that there was no tax and NI accounted for during the initial set up with the first legal entity and when the second legal entity took over the business they would have not accounted for the previous business liabilities.

[MPH80]

It certainly sounds like this employer was in very murky waters. 9 months for a name change and to register as an employer/setup PAYE? No chance. You're supposed to register as an employer before the first payslip of ANY employee and the RTI setup has to be done at the same time.

I agree with Frontier Mole - the only way out of this is confirmation from HMRC that this was the case and that all the back taxes have now been paid and that the tax/NI information as represented in the payslips is correct.

Otherwise I think he's on a hiding to nowhere.

[Miah]

Thanks guys for your advice, the accountant has given me an email from the HMRC stating that there were problems with the registration of the PAYE but he messed me around and kept on lieing for weeks saying he had paid the tax when he hadnt. Thats why it got to that stage. Paying tax was out of my control and he just messed it up for me. Could I not say at the tribunal that the Accountant messed it up and get a witness statement from him to prove it.

[MPH80]

Thanks guys for your advice, the accountant has given me an email from the HMRC stating that there were problems with the registration of the PAYE but he messed me around and kept on lieing for weeks saying he had paid the tax when he hadnt. Thats why it got to that stage. Paying tax was out of my control and he just messed it up for me. Could I not say at the tribunal that the Accountant messed it up and get a witness statement from him to prove it.

I don't think you've got much other option.

[Asma7]