CH301150 - The Human Rights Act and penalties: The Human Rights Act and deceased persons

There are some circumstances when we cannot issue a penalty after a person has died for something they did, or failed to do, when they were alive.

This is because, in these circumstances, the deceased person is presumed to be innocent and a criminal charge cannot be inherited.

You must not impose a penalty on the personal representatives of the deceased person for offences committed by the deceased before the date of death, if all the following circumstances apply

• the penalty is of the type that are classified as ‘criminal’ for the purposes of the European Convention on Human Rights, see CH300200, and
• it is necessary to establish the persons behaviour for them to be liable to a penalty, or that they did not have a reasonable excuse, and
• they would have been personally liable for the penalty.

This does not apply to companies or other organisations where the rights of that person apply through the individuals who are authorised to act on their behalf, see CH300550. This also means when a penalty is issued to a company and HMRC have also issued a Personal Liability Notice {PLN}, see CH75500, CH84600, or CEP4500. If the company officer has died then the PLN cannot be maintained. However, it does not mean that the company cannot be held liable for the underlying penalty.

Behaviour established before death

There may be exceptional circumstances where an individual’s liability to a penalty has been clearly established and agreed with the person before they died. Where there is no doubt about this then you should issue the agreed penalty or PLN on the personal representative. You will need to bear in mind that under these circumstances the onus is on HMRC to demonstrate that the taxpayer had agreed to the penalty before they died.

Where the penalty has been agreed in principle but you have not fully established the penalty position or obtained the person’s agreement to every aspect of the penalty, for example the amount of the penalty or the behaviour, you should not proceed with the penalty or PLN. Even in cases where an agreement has been reached, you will need to take particular care if the person’s agreement, or disclosure may have been made when their judgment was affected by illness. Where there is evidence of this, you should not charge the penalty.

Remember, nothing prevents us from pursuing the company for the penalty where the evidence of the deceased shows that it was deliberate behaviour, taking into account the nature of evidence. Your evaluation of the evidence must take into account the possibility that further evidence is missing in the context of the “balance of probabilities” test.

Appeals

Where a penalty has been appealed by the person before the person’s death or is subsequently appealed by the personal representative, you should not automatically withdraw the penalty. The action to take will depend on the nature of the appeal and the strength of the evidence we hold to support the penalty decision. (This content has been withheld because of exemptions in the Freedom of Information Act 2000)

Other Issues

Where an inaccuracy, failure, wrongdoing or dishonest conduct in respect of the deceased person’s estate is attributable to the personal representatives after the person’s date of death, you should impose any penalty on the personal representative in the normal way.