EM5252 - Penalties: determination procedures: form 394

The penalty determination form 394 (IT/CT) is a SEES document. You can access the form through SEEs Forms and Letters. Type ‘394’ in the top left hand corner text box after ‘find form’ and select the search option.

1. Complete the SEES template to show

• the taxpayer’s name, address and postcode. For partnership cases you should send a determination to each relevant partner who is liable to a penalty, see for example EM4820 and EM4585
• the tax reference
• the authorised agent’s name and address details as appropriate.

2. Select

• the taxpayer type. Where you select Partnership you will have to enter the partnership name
• the penalty offence. The wording for the appropriate penalty provision will be automatically entered on the printed form except for Other penalties. EM5253 explains how to complete the rest of the form in these cases. Note that you cannot amend the taxpayer type once you have selected the penalty offence.

You may be asked to choose from

• fraudulently or negligently, or negligently
• one year only or more than one year
• allowances, deductions or reliefs
• income tax or capital gains tax.

3. You can’t make an entry in the Total amount payable (under this determination) box. This box will be completed automatically.

4. The Date of Issue box will show today’s date. If the determination won’t be issued today, amend it to the actual date of issue.

5. Select the Tax and NIC Details tab at the top left hand corner of the screen to access the table where you can enter details of the penalty amount. You should enter

• each year (for individuals or partners) or period ended (for companies)
• the Tax/Tax Difference and NIC/NIC Difference. The Total Column will be completed automatically
• the amount of the penalty for that year or period ended rounded to the nearest full pound.

For example

Year	Tax Difference	NIC difference	Total	Penalty
2006	1546.23	569.11	2115.34	423
2007	5639.88	2009.34	7649.22	1530
2008	3687.56	1693.25	5380.81	1076

6. If there is more than one penalty offence you must complete a separate 394 as above for each type of offence.

7. Issue the penalty determination notice with a covering letter to the taxpayer. Your letter should explain

• that you are enclosing a formal notice imposing a penalty
• how the penalty should be paid (EM5254 explains what action you need to take)
• that if it is an SA penalty, interest will be charged if it is paid late
• any other points or issues that are outstanding
• you should also include a copy of factsheet HMRC1 - ‘HMRC decisions - what to do if you disagree’.

8. If you have not already done so, you should also explain

• the facts that you believe give rise to the penalty
• how we calculated the penalty, and
• issue factsheet CC/FS9 - The Human Rights Act and penalties’, and if relevant, factsheet CC/FS15 - ‘Self Assessment and old penalty rules’.

9. A copy should be sent to an agent (if acting) with a covering letter.