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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.
@actd
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.
@actd
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.
@actd
I have sent a copy of my request to the tribune to CMS to see if they can shed any light.
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