Accountant failure in duty of care / professional negligence?

ITContractor9

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Jul 22, 2024
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Sorry to bring up such a big issue in my first post. But I believe my accountant has been negligent, in not informing me of tax changes that, based on previous year's accounting trends, would have affect me, as well as not offering ways of mitigating tax through employer pension contributions.

I have operated a limited company since 2012, 90% of which is IT contracting, where I am the sole employee/director. I have been with the same accountant for 8 years. I'm 53 years old, so anyone knowing my position would be mindful of pension contributions.

Last year I made a pre-tax profit of £99k, and also took £18k as a *personal* contribution to my SIPP (after taking a dividend from the company.

This year my pre-tax profit was £130k. My accountant just did the numbers, and told me the corporation tax bill was £31k. I discovered that 6k of this tax was due to Jeremy Hunt's changes in corporation tax rates over £50k introduced on 1 April 2023 (which coincides exactly with my company financial year). I was not aware of this tax change, and complained to my accountant that he had not informed me, prior to the end of this tax year, that had I known this, I would have taken action to mitigate it by paying a lot more into my pension instead of the money sitting in a business savings account. He said "you never contacted me to tell me your change in position". Well he just did my accounts and saw that I DID in fact make £100k last year, so there wasn't a change in position - it would definitely have been a matter to highlight, as, if continued would have led to me paying the higher corporation tax rate this year.

He also only just told me that it was usually more tax efficient to pay into a SIPP directly from the company as an Employer Contribution. Why didn't he tell me this last year, when he saw I was doing it the "wrong" way (through personal contribution after taking dividends then claiming back the higher rate in my Self Assessment)? It is estimated that the £20k SIPP payment I made this year would have saved me £1,700 had I done it the Employer contribution route.

Apart from responding to my emails during the time of doing my accounts and filings, he didn't contact me at any other time of the year, and especially did not in Feb/Mar as a "check up" before the end of the financial year.

So, on these two points, the lack of warning about higher corporation tax rates, and the lack of advice on method of SIPP payments, I am now down approximately £7.700 in additional tax that could have been avoided had I been forewarned.

Was my accountant professionally negligent or did he fail in his duty of care to alert me of the impending tax changes, and advice on how to better make SIPP payments? Or am I expected to contact him on a regular basis with intangible questions about things I can't be expected to know, since I'm not an accounting professional?

Is this a common scenario that others have had? Is there recourse to receive compensation if it can be somehow "proved" that he failed in his duty of care?
 

Frank the Insurance guy

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    Hi @ITContractor9 ,

    You need to check what the letter of engagement was for - have a look as it should state what services they will provide.

    If they purely relate to dealing with the end of year accounts filing and tax calculations then I doubt you can do anything. If it includes ongoing personal tax advice then you may be in a good position.

    You mention you have a SIPP and pension contributions - What advise did your financial advisor provide, as they would also provide some background regarding personal tax and pension contributions etc.
     
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    WaveJumper

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    Welcome to the UKBF, I am going to leave the accountants on here to answer you main question about whether you have a "case" or not, but I would add with regards to the numbers your talking about why you are not having regular meetings with your accountant beats me. If i was not in regular contact throughout the year with mine I would be rather concerned.

    As a general thought being self-employed / or running a Ltd I certainly would be keeping one eye on any changes to our lovely tax system especially if i thought it was effecting my savings in any shape or form. We might not understand what a particular implication might be but it alerts us to a change and the need to ask a question.

    Maybe you do need to seek another accountant be interesting to see what others think, but if you can't pick up the phone or have regular meetings I would not be sleeping at night ...... I even get news updates from mine especially if changes are made to the tax system.

    Another thought to hold (i am sure others will have something to say about this statement) an accountant might not be the best person to offer you overall tax advice and many will recommend someone they work closely with.
     
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    As @Frank the Insurance guy says, it's all down to the scope of your arrangement- the letter of engagement

    To ruffle a few accountants' feathers, they frequently aren't great communicators and may not fully describe things like service levels in relation to cost - hence business owners frequently take the lowest cost option (ie do the books and filing) unaware that that doesn't include ongoing personal used advice.
     
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    TidyM

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    May 31, 2024
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    As @Frank the Insurance guy stated, a lot will depend on what is in your engagement letter.

    If you have not engaged and aren't paying for tax advice then i'd say you don't have much of a case.

    It may be the accountant could have sent out some info re the tax changes however the changes weren't exactly small news. They were widely publicised in media and tv reports for months and were mentioned a lot again in the run up to the election.

    You as the business owner must take some responsibility for keeping up with current affairs as part and parcel of running the business.

    If on the other hand, you are paying for tax advice services, you may have a case to ask why the employers pension contributions and tax changes weren't mentioned.
     
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    Lisa Thomas

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    Just playing Devil's advocate here - How was the accountant supposed to know your profit was £130k unless and until they produced the accounts?
     
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    MyAccountantOnline

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    My view as an accountant - it's very disappointing your accountant didn't advise you of the tax changes but negligent - unlikely, although it will depend on the exact nature of the services your accountant provides for you/your company.

    If you want to pursue a negliegence claim I'd check your letter of engagement first.
     
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    MyAccountantOnline

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    Just playing Devil's advocate here - How was the accountant supposed to know your profit was £130k unless and until they produced the accounts?

    I think the point the OP makes is that his company profits for the earlier year already exceeded the small profits rate threshold so the accountant could/should have expected the change to apply to his company.
     
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    ITContractor9

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    Jul 22, 2024
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    Thanks all for the replies so far - I didn't expect so much engagement so quickly!

    Alas I cannot find the letter of engagement - it was 8 years ago that I first took on his services, so it seems to be lost now. I just spoke to another contractor colleague, and he basically said the same thing. It is a spectrum of services that accountants have to offer, from simple "just file it for me" to full on tax advice. This, to my knowledge was never established with my accountant, and so it appears to be in question that I can hold him "accountable" (pun intended) for any oversight or omission in advice.

    Yes, it would have been smart for him, knowing my previous tax year profits well exceeded the threshold, to have reminded me about the corporation tax changes. How exactly I missed the news is one I'm still scratching my head about. The nature of my work tends to mean I have laser-focused attention instead of a shotgun, if that makes any sense.

    One of you asked why I'm not having regular conversations with my accountant about the progress throughout the year and the answer is, rather brutally, I've never really gotten on with him at a personal level, as he's quite abrasive and direct as a person and have rather avoided discussions with him. So it is my own laziness of not switching to someone else that has meant I've stuck with him for so long (that and also find it hard to find a new accountant who I can trust). And now I've paid a rather hefty price as a result.

    So it looks like I ultimately have to accept the responsibility in this, even though, as some have said, it would have been beneficial to have given a heads-up on the matters I've raised, that he was probably not obliged to do so.
     
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    Sep 18, 2013
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    Looks like the Accountant client relationship has broken down - change advisers.

    Have you looked at making an pension contribution now then shortening the accounting period to establish a trading loss ( as a result of the pension contribution) which then can be carried back to the previous accounting period to generate a ctax refund.
     
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    ITContractor9

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    Jul 22, 2024
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    Looks like the Accountant client relationship has broken down - change advisers.

    Have you looked at making an pension contribution now then shortening the accounting period to establish a trading loss ( as a result of the pension contribution) which then can be carried back to the previous accounting period to generate a ctax refund.
    Thank God I posted on this forum. I would have never thought of this idea myself! This is exactly what I need to do! I have a lot of money sitting in a business savings account, and I could take a large employer's pension contribution now (never taken one before so it could be bigger than the £60k annual limit and use carry over from unused previous years) if the accounting period was extended. I believe the limit is 18 months? So I could extend until 30 September (was 30 March). Thank you! Thank you! Thank you!

    And yes, I agree, the relationship isn't good. But I can have him do this one last thing, and once filed, switch to a new one.
     
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    ITContractor9

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    Jul 22, 2024
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    yes 18 months max - will be split into 12 month & 6 month period for ctax accounting periods. the loss in the 6 months period c/back to year to 30/03/24
    Regarding this detail, I thought that one couldn't make employer pension contributions if it would result in a trading loss for that accounting period. Or is this about whether the company has the funds to do so? (It does, by the way - lots of cash in the account).
     
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    Letter of Engagement looks to be key to establish the services to be supplied.
     
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    Lisa Thomas

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    Happy to recommend a new accountant - feel free to DM me.
     
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    TheSkyisGray

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    Jul 4, 2022
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    We usually have annual tax planning meetings with our clients and send updates after each budget. It sounds like you are not a good fit so I would file these accounts and move to a better fit.

    If you are going to consistently make £130k profits then are you really going to put £80k a year into your pension? Or was last year a one-off? Pay the tax and minimise future years since the rate is here to stay I would imagine.

    Optimising profit extraction is very complicated at the moment. Bespoke calculations are required.

    Pension planning does tend to be for financial advisers. The remuneration package has to be commensurate with your duties to obtain a corporation tax deduction. There are also annual allowances which you refer to above.

    Does the accountant also do your personal tax returns? Did they know about the prior year contribution and that you wanted tax minimisation advice? Have you discussed involving your partner in the business?

    How much are you paying to help answer your question regarding expectations?

    In summary, there is still time to put in strategies prospectively.
     
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    Ian Md

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    Oct 13, 2023
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    Sorry to bring up such a big issue in my first post. But I believe my accountant has been negligent, in not informing me of tax changes that, based on previous year's accounting trends, would have affect me, as well as not offering ways of mitigating tax through employer pension contributions.

    I have operated a limited company since 2012, 90% of which is IT contracting, where I am the sole employee/director. I have been with the same accountant for 8 years. I'm 53 years old, so anyone knowing my position would be mindful of pension contributions.

    Last year I made a pre-tax profit of £99k, and also took £18k as a *personal* contribution to my SIPP (after taking a dividend from the company.

    This year my pre-tax profit was £130k. My accountant just did the numbers, and told me the corporation tax bill was £31k. I discovered that 6k of this tax was due to Jeremy Hunt's changes in corporation tax rates over £50k introduced on 1 April 2023 (which coincides exactly with my company financial year). I was not aware of this tax change, and complained to my accountant that he had not informed me, prior to the end of this tax year, that had I known this, I would have taken action to mitigate it by paying a lot more into my pension instead of the money sitting in a business savings account. He said "you never contacted me to tell me your change in position". Well he just did my accounts and saw that I DID in fact make £100k last year, so there wasn't a change in position - it would definitely have been a matter to highlight, as, if continued would have led to me paying the higher corporation tax rate this year.

    He also only just told me that it was usually more tax efficient to pay into a SIPP directly from the company as an Employer Contribution. Why didn't he tell me this last year, when he saw I was doing it the "wrong" way (through personal contribution after taking dividends then claiming back the higher rate in my Self Assessment)? It is estimated that the £20k SIPP payment I made this year would have saved me £1,700 had I done it the Employer contribution route.

    Apart from responding to my emails during the time of doing my accounts and filings, he didn't contact me at any other time of the year, and especially did not in Feb/Mar as a "check up" before the end of the financial year.

    So, on these two points, the lack of warning about higher corporation tax rates, and the lack of advice on method of SIPP payments, I am now down approximately £7.700 in additional tax that could have been avoided had I been forewarned.

    Was my accountant professionally negligent or did he fail in his duty of care to alert me of the impending tax changes, and advice on how to better make SIPP payments? Or am I expected to contact him on a regular basis with intangible questions about things I can't be expected to know, since I'm not an accounting professional?

    Is this a common scenario that others have had? Is there recourse to receive compensation if it can be somehow "proved" that he failed in his duty of care
    Hi i have just had exactly the same thing happen to me now looking for a proactive accountant as responses are i should have been aware myself
     
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    WaveJumper

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    I have said this on many a thread now, when looking for an accountant view it like interviewing for a member of staff, who do you think is going to be the best fit, who are you going to get on with, who do you think understands your requirements the best etc etc don't just settle on the first one you come across and certainly don't think getting it done on the cheap is going to be the best for your future bank balance.

    As people find out there is more to it than just filing some numbers with HMRC and as once said quite famously "assumption is the mother of all f**** ups"
     
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    WaveJumper

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    Yep know one wants to pay more tax than they have too, and unless you have your the finger on the pulse and know the "ropes' i can pretty much guarantee you are going to need an accountant and a tax advisor to steer you down the right path.

    And waiting to the end of a financial year and suddenly realising you need to take "evasive" action to limit your tax burden in my book is not good business planning you need to be looking at your books, if not weekly, monthly, and continually looking ahead and planning for the "what ifs"
     
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    Lisa Thomas

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    Hi i have just had exactly the same thing happen to me now looking for a proactive accountant as responses are i should have been aware myself
    Feel free to dm me for a recommendation
     
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    ITContractor9

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    Jul 22, 2024
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    We usually have annual tax planning meetings with our clients and send updates after each budget. It sounds like you are not a good fit so I would file these accounts and move to a better fit.

    If you are going to consistently make £130k profits then are you really going to put £80k a year into your pension? Or was last year a one-off? Pay the tax and minimise future years since the rate is here to stay I would imagine.

    Optimising profit extraction is very complicated at the moment. Bespoke calculations are required.

    Pension planning does tend to be for financial advisers. The remuneration package has to be commensurate with your duties to obtain a corporation tax deduction. There are also annual allowances which you refer to above.

    Does the accountant also do your personal tax returns? Did they know about the prior year contribution and that you wanted tax minimisation advice? Have you discussed involving your partner in the business?

    How much are you paying to help answer your question regarding expectations?

    In summary, there is still time to put in strategies prospectively.
    The £130k was a one off due to me selling a sideline brand of the business. It'll be more like £100k per annum going forward.

    As any IT contractor will tell you, expenses are pretty low, and high expenses would probably raise eyebrows at HMRC anyway. So, it seems tax reduction options are limited these days, unless one goes down the route of pension contributions. My annual personal expenditure rarely goes above £40k - I don't live an extravagant lifestyle. So why not just bank it into a SIPP for my later years?

    Can you expand on what you mean by "The remuneration package has to be commensurate with your duties to obtain a corporation tax deduction."? Do you mean I couldn't keep taking half the annual profit of £100k as pension, year on year?

    He does do my personal returns and was completely aware of my earlier efforts with personal pension contributions. But only just piped up now about employer pension route.

    He gets paid about £1000 + VAT per year for his services. He's really just a filer, and has offered very limited tax mitigation advice in the past. As mentioned, the relationship isn't good. So this will be the last year I'll be using him. I cannot find the letter of engagement, so can't tell you what the terms of the professional relationship are.
     
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    MyAccountantOnline

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    ..

    Can you expand on what you mean by "The remuneration package has to be commensurate with your duties to obtain a corporation tax deduction."? Do you mean I couldn't keep taking half the annual profit of £100k as pension, year on year?

    ...
    In my experience it's not generally an issue for a director such as yourself but HMRC can challenge/seek to disallow costs which aren't wholly and exclusively for the purpose of the trade. Have a read here -

     
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    MyAccountantOnline

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    ...I cannot find the letter of engagement, so can't tell you what the terms of the professional relationship are.

    I'd ask your accountant for a copy.
     
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    DWS

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    Think I need set up a purely AI Practice with a AI version of myself at the helm - its the future for Accountants ..... robots are taking over the compliance side of the profession.
    Hopefully all these robots will have PI insurance in place, because if everyone is going to rely on them who are they going to blame when things go wrong.
    Accountants are here to advise but unless a client actually comes to them and asks for specific advice then I do not see how they can be accountable if the client can not keep up to date with the running of their business.
    An accountant can not be expected to contact every single client about every single change in tax legislation.
     
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    WaveJumper

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    Think I need set up a purely AI Practice with a AI version of myself at the helm - its the future for Accountants ..... robots are taking over the compliance side of the profession.
    I can picture you now on the sun bed cocktail in hand ............ the other maybe clutching your phone watching you banking APP 😎
     
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    ITContractor9

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    Think I need set up a purely AI Practice with a AI version of myself at the helm - its the future for Accountants ..... robots are taking over the compliance side of the profession.
    I have been getting a lot of help from ChatGPT in understanding tax. But it doesn't always give the right answers. And couldn't make the suggestions for solutions that some of you made in this thread.
     
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    ITContractor9

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    Jul 22, 2024
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    Just one additional note on this. I thought for a moment that this could be done even more simply by recording the pension contribution as remuneration before the end of the tax year as an accrual and then making the payment within 9 months of the following year, thus avoiding the complexity of having to do an extended accounting period.

    Well, for whatever reason HMRC say pension contributions are specifically excluded from this type of remuneration accrual method. The reference is in HMRC PTM043200 (added emphasis)

    Changes to the normal rules for deductible expenses​

    The pension tax legislation amends the normal rules for allowable deductions slightly. These changes are as follows.

    Employers carrying on a trade or profession​

    Section 196(2) Finance Act 2004

    When working out the amount of the profits, pension contributions can only be deducted for the period of account in which they were paid. It is not possible to carry the contribution back or forward to other periods.
     
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