My ex appealed the January 2021 CMS decision on the basis the wrong income figure had been used. The appeal was heard end of March 2022 and was allowed even though the CMS had provided a very thorough explanation of where the income figures came from and the applicable law.
The tribunal has ruled that the 2019/2020 tax return figures should be used from September 2020 onwards when the challenge was first made by ex. However, the 2019/2020 tax return had not been completed and filed with HMRC until January 2021. So, how can the tribunal rule that figures which were not available at the time of appeal shall be used?
I get the feeling that the tribunal has not read the CMS documents as they explained that as of September 2020 the most recent Tax Return available with HMRC was for the tax year 2018/2019. However, by the time the appeal was heard in March 2022 the tax return 2019/2020 was available, but that seems to be inconsistent with the following regulation.
Meaning of “latest available tax year”
4.—(1) In these Regulations “latest available tax year” means the tax year which, on the date on which the Secretary of State requests information from HMRC for the purposes of regulation 35 (historic income) or regulation 69 (non-resident parent with unearned income), is the most recent relevant tax year for which HMRC have received the information required to be provided in relation to the non-resident parent under the PAYE Regulations or in a self-assessment return.
(2) In this regulation a “relevant tax year” is any one of the 6 tax years immediately preceding the date of the request for information referred to in paragraph (1).
The amount to be paid does not change much, but what is the point of regulations if they are not correctly applied? I have formally asked the tribune to explain their decision, but so far no reply.
I think you can appeal the tribunal's decision, and I would say that you are doing so on the basis of an incorrect application of the law, not simply because you don't like the decision - that should give you a better chance of success. I'm not up to date with the appeal process, but it may be time limited, so I would check on this. It is (or used to be) a painfully slow process.
I replied within 2 days (I remember the time was 30 days) on the basis of incorrect application of the meaning "latest available tax year". The Judge who made the decision is meant to reply within 30 days too I remember, but so far has not. The time limit will be up in a few days unless they make some excuse about the long easter weekend has to be taken into account.
Meanwhile the CMS have not changed anything and the weekly payments remain the same since last year.
Will be interested to hear how you get on, I really cannot see how they can justify their decision.
The 30 days time limit for the tribune to reply has passed and I have not heard anything. They acknowledged receipt of my request by email the same day. I also sent a hard copy by recorded delivery and have receipt for that too.
CMS calculation remains the same as before.
@world-traveller - is there a complaints process? If they aren't sticking to their own timelines, you must have grounds.
Can I just jump in with a query about the 'latest available tax year' ?
My annual review date was 11th November 2021, and I had submitted my Self Assessment tax return 8 days previous to this on 3rd November 2021, with the intention that it be used in the imminent annual review. However it wasn't despite the fact that it was 'available' from HMRC within a day or so of my submission and certainly by the annual review date. However going from the wording of the regulation provided by World Traveller, it seems to be defined as :-
“latest available tax year” means the tax year which, on the date on which the Secretary of State requests information from HMRC for the purposes of regulation 35 (historic income) or regulation 69 (non-resident parent with unearned income), is the most recent relevant tax year for which HMRC have received the information required to be provided in relation to the non-resident parent under the PAYE Regulations or in a self-assessment return.
So - it seems that 'latest available' means as at the time the DWP request the information and NOT as at the date of the annual review itself ?
My understanding is that CMS begin to collect income information one month before they actually make their annual review.
So, in your case it is likely that CMS had already received income data and began to prepare their review before you submitted details on 3 November 2021.
Yes that seems to be the case.
However I was of the view that it was the latest available tax return as at the annual review date. This understanding was informed by the relevant statement on my annual review letter, eg. for my most recent annual review it states "Your next annual review will be on 11 November 2022. This is when we will use your latest available income information given to HMRC ....".
It is entirely understandable that I was led to believe by the CMS's own statements that the relevant date is the date of the annual review and not some earlier date unknown to me when the CMS actually ask for the information.
The Tribunal eventually came back to me after 10 weeks, but I am non the wiser. The document provided was not a transcript of the hearing, but a recording of the advise given by CMS and some legal/accounting expert to the judge.
Both CMS and expert confirmed that CMS shall prepare their calculations based on the information (tax returns) that is available to HMRC at the time of CMS review. At the time of review in Jan 2021, the latest available tax return was 2018/2019. So, CMS used income data from 2018/2019 when calculating income in September 2020.
By the time the appeal was heard in March 2022, the Tax return for 2019/2020 was available. CMS advised that 2019/2020 data was used for the Jan 2022 review, but this was not the subject of the appeal.
The recording stops at this point. So. how the judge ruled that the 2019/2020 data, which was not available until late Jan 2021, should become effective from 10 September 2020 remains a mystery.
I have asked the tribune again to answer my question and check if there are any more recordings.
My ex is taking me to a tribunal for diversion of income.
I have nearly 50/50 custody that I won after 14 long hard months in court, my ex got an extra over night stay. Even though I have my children that extra day she has to sleep, I have to return home for bedtime! I pay for half of everything. I’m on a mortgage with her which I pay half of and have been trying come off for years but every time she would stop me seeing my kids.
I have over paid her for years and now she can’t stop me from seeing my children I have adjusted maintenance which was in line with the government calculator. After changing the maintenance she applied back to court to vacate the decision. Obviously down to the maintenance!
I set up a limited company with my fiancé, I do the work and she does everything else, we want to build a business, we have 5 kids between us, 2 with my ex my fiancé has 2 and we have 1 together.
I am paid minimum wage, my fiancé takes the dividend, as we thought that would be better rather than putting her through the books. We wanting to sort all the details of the business out in January, I had a massive tax bill the year before, due to me getting 3 government grants. And first payments were taken in Jan. on advise from account. I got a letter from CMS saying my ex was enquiring about maintenance, so I called them the day I got the letter.
but they are saying there is a discrepancy with the date, a cross over with dates. From when we set up the business to when they sent out the letter. We had waited a month and a half until the child proceedings were over!
I was pissed off, as I’ve always paid above and beyond for my kids.
so I set the payments low initially, hence I was sorting the details out in January. But stupid me, and I should of know this she applied to a tribunal!!
I got a letter from Courts saying she was taking me to a tribunal.
So now iam in a real sticky position, I’ve not dared do anything with the business, but my finance on the books as working which she is! Or increased money I’m been paid.
my fiancé not been able to try and win contracts, she’s not been able to take on some lads.
Never heard of diversion of income, nor my account!!
Not sure what I can do!
my fiancée said we should of just done what we was originally going to do in January now. But I think it looks suspicious! I just don’t know what to do for the best.
HELP