Tax and the unrepresented: some reflections on tax, social justice and the rule of law

What do we mean when we talk about the ‘rule of law’?

Professor Brian Tamanaha captured the great variety of views on the subject when he said “everyone is for it, but have contrasting convictions about what it is”. To me, the most concise and convincing summary was formulated by Thomas Fuller in 1772:

“Be you never so high, the law is above you”.

Applied to taxation, this surely means that there is one law which is above the taxpayer and above the revenue authority. Both are equally bound by it. The CIOT motto encapsulates this sentiment: “fairness between State and citizen”.

One ingredient of the rule of law, according to the late Tom Bingham (The Rule of Law 2010), is that it should be accessible –

“The law must be accessible and so far as possible intelligible, clear and predictable”.

That principle seems particularly appropriate in the field of taxation. As Adam Smith said 250 years ago:

“The tax which each individual has to pay ought to be certain and not arbitrary. The time of payment, the amount to be paid ought all to be clear and plain to the contributor and to every other person.”

Accessibility

Yet tax law has over the years become highly complex and almost impossible for the majority of taxpayers to understand. Where tax rules are inaccessible, unintelligible, unclear, unpredictable, uncertain or arbitrary, everybody suffers, but those who suffer most are those who do not have professional experts to represent them because they cannot afford the fees.

In a society as sophisticated as ours, it is practically inevitable that tax complexity increases as it tries to cope with the growing complexities in society itself. So how does one ensure that the complex tax system we are bound to create can nevertheless be made “accessible, intelligible, clear and predictable”? Rail travel, for example, is underpinned by all sorts of complex things – timetabling, the mechanics of the train’s engine and its smooth progress along the tracks, the points system, the intricacies of the corporate structure of the rail companies and their franchises – but all the consumer has to do is buy a ticket and turn up at the right platform and time. The consumer does not have to know how to fix an engine that breaks down or correct a malfunctioning set of points.

To some extent this is also true of tax. The PAYE system, for example, ensures that most people don’t have to worry about tax at all – for the most part, broadly the right amount is deducted from our wages or pensions and paid over to HMRC, and if by the end of the year we have paid too much or too little, appropriate repayments or coding adjustments are made. Of course, it can go wrong, and then – unlike rail travel – it pays to know something about the mechanics. And that is something that advisers can help their clients with, but unrepresented taxpayers are essentially on their own.   

So returning to the question, how does one make tax accessible, in particular to unrepresented taxpayers? The PAYE system, admirable though it is in many ways, is a creation of the 1940s and is not only creaking under the weight of all that it is now expected to do, but is not well adjusted to modern ways of working or drawing pensions.

Tax volunteering

In 1998 when I first joined the Low Incomes Tax Reform Group (LITRG) as a volunteer, we studied the impact of the tax system on older people on low incomes, and soon found that PAYE complications lay at the root of most of the problems older people experienced. The particular difficulties older people face are excellently set forth in Professor Jane Frecknall-Hughes’s study. In very brief summary:

• Older people often have to deal with their own tax affairs for the first time in their lives when they retire, having up to then been able to rely on their works payroll department.
• They tend to worry a lot about doing something wrong, particularly as their faculties – sight, hearing, cognitive faculties – dwindle with age.
• Pensioners typically have multiple sources of income – the state retirement pension (taxable but not subject to PAYE), other pensions (sometimes inherited), some savings income or remuneration from a part-time job – which the PAYE system often mishandles so that the taxpayers can end up in self-assessment to collect often nugatory amounts of tax.

The challenge LITRG faced then was how to make tax accessible, intelligible and clear to those older taxpayers who were financially unsophisticated but anxious to do the right thing – naturally compliant. Looking across the Atlantic we saw that both the USA and Canada operated publicly funded volunteer networks at tax filing time, and thought that a similar scheme should be trialled in the UK. So LITRG set up pilot schemes funded by the CIOT and Nuffield Foundation to test whether there was a need among older people on low incomes for free tax help and advice from professionals. By March 2002 it became clear that the need existed, so willing volunteers were recruited from the professional bodies, both public and private funding secured, and Tax Help for Older People became a nationwide charity alongside TaxAid, which had already been helping working-age individuals on low incomes with their tax since David Brodie set it up in 1994.

The value of the tax charities lies in the advocacy they provide for the taxpayer, which HMRC cannot do for obvious reasons. However good HMRC’s customer service to vulnerable taxpayers through the Needs Enhanced Service, and however dedicated the specialist HMRC support for tax volunteers may be, HMRC officials cannot – with the best will – jeopardise their position as government agents by acting also as taxpayer advocates.

Public understanding

Going back to Adam Smith, the principle of certainty means that every taxpayer must know what they have to pay and when. It “ought to be plain to the contributor and every other person”. A vital task in which LITRG has been engaged for the last two decades is to enhance the public understanding of tax. It does so through a series of popular websites which explain aspects of the tax system of most interest to the majority of individuals in plain English, and in a way that people can easily navigate by means of their own situation and what is happening to them, such as in question-and-answer format (“I am a carer – how do I get working tax credit?” “I am a pensioner with a state pension and an occupational pension – how do I check the tax I am paying is correct?”). Proof that this approach is effective can be found in the nearly 5 million visitors a year which the LITRG sites attract. This suggests that the method and approach they use succeeds in answering the questions unrepresented individuals are actually asking about their tax affairs.

The limits of digital inclusion

Mention of the web raises another question about the accessibility of tax law. In a country where, to use HMRC’s own data from 2015, 15 per cent of the general population is digitally excluded and 37 per cent can only access the web with assistance, how do we ensure that everyone has equal access to information about their tax when all official information, and most other sources, are online? LITRG get around the problem by providing fact sheets in a format that can be easily downloaded and printed, such as the factsheet about tax on bereavement which has proved immensely popular in printed form with local registrars’ offices (the distribution costs, in case you were wondering, are dealt with by volunteers trudging the streets with sackfuls of leaflets!). But there is no longer any official printed guidance.

One of LITRG’s more enduring successes was supporting the three appellants who won their appeal against HMRC’s notice that they must file their VAT returns online and pay electronically. After an eight day hearing the judge held, in a 953 paragraph judgment, that legislation requiring online filing and payment by people who were unable to use computers or access the internet because of age, disability or remoteness of location was a breach of their human rights (LH Bishop Electrical Co Ltd and others v R&C Commrs [2013] UKFTT 522 (TC)). That was an important victory which would have been impossible had barrister Anne Redston not been prepared to take the case pro bono, and it led to a new category of exemption which has been replicated in the legislation for Making Tax Digital. The next step is for the tax authority to ensure that nobody is unable to access information about their tax obligations and entitlements simply because they cannot use computers or the internet, and that is a much bigger task, one which should best be undertaken in conjunction with the tax profession and the academic world.

Conclusion

Reflecting on my 15 years running LITRG on the CIOT staff, and my time before and after that as a volunteer, I have enormous admiration for the people who are prepared to put their time, expertise and effort at the service of individuals who encounter the tax system in their daily lives, and are challenged, baffled, even frightened by it. The tax profession now has a fine pro bono tradition, and through the tax charities the poorest and most vulnerable have access to advisers who apply the highest professional standards. The next stage will be for the tax profession, including the academic world, and HMRC to work together on ensuring that tax law is as accessible, intelligible, clear and predictable as it can possibly be, so that people’s understanding of what they must do and when is not compromised by their inability to afford professional advice.

Robin Williamson was technical director of LITRG between 2003 and 2015. He is now a part-time senior policy adviser at the Office of Tax Simplification.

Robin will be discussing these and similar topics in a presentation to the Taxation and Social Policy Association on 24 May 2019 at 30 Monck Street, Westminster, SW1. The other speakers will be Adam Corlett, Senior Economic Analyst of the Resolution Foundation, and Karen Rowlingson, Professor of Social Policy, University of Birmingham and Chair designate of the Social Policy Association. For more information click here.