ASA Adjudications

HM Revenue & Customs
Room 60
1st Floor, New Wing
Somerset House
Strand
London
WC2R 1LB
Number of complaints: 2
Date:4 July 2007
Media:Television
Sector:Non-commercial
Agency:Miles Calcraft Briginshaw Duffy (MCBD)

Ad
A TV ad from HM Revenue & Customs, for Self Assessment tax returns, showed TV presenter Adam Hart-Davis in a giant hourglass.  As the sand trickled through the glass, he said "Time is running out.  Send in your Self Assessment tax return by 31 January or you'll get a £100 penalty and start getting charged interest on anything you owe.  You need to do it now".  He then cried out as he began to fall into the hourglass sand.  The ad closed with a voice-over and on-screen text that stated "self assessment  tax doesn't have to be taxing".
Issue
Two complainants, a tax consultant and a chartered accountant, believed the ad:

1.  was misleading, because it implied all individuals who failed to return their tax return before 31 January would receive a fine of £100 and

2.  used an undue appeal to fear to encourage consumers to submit their tax return before the deadline date.


BCAP TV Advertising Code: 5.1;6.4

Response
HM Revenue & Customs (HMRC) explained that, if a Self Assessment tax return was received later than the deadline of 31 January, an automatic penalty of £100 was applied.  They said that was the implication of the ad and the reality of the relevant legislation and asserted that it was their duty to make consumers aware of it.  They said, in addition, interest was charged on any late payments and the penalty for very late filing of returns could be anything up to £60 per day.

They asserted that a £100 penalty applied to all those who submitted their tax return after the deadline date.  They explained, however, that if a late respondent had no tax liability, or any liability owed was less than £100, the penalty was cancelled or capped at the amount of the liability due, respectively, at a later date.  They said the actual amount payable would be calculated once the late return was processed and the appropriate penalty allocated against liabilities at that point.  They said, if a refund was due, it was either automatically paid (if the respondent had requested this on their return) or kept until either a claim was made or the money was allocated against other liabilities owed.

HMRC explained that their research indicated that clear, no-nonsense messages about the tax deadline were both expected and appreciated by the public and added that the January campaign continued to improve public perceptions of the department.  They apologised to our complainants, who had found the ad's tone distressing and its message confusing, but said broadcast in previous years and regular research indicated that that reaction was atypical; they said their reports showed that the ad was received particularly well.

HMRC said the ad's message was relevant only in January, so they had no plans to use it at any other time throughout the year; they pointed out, however, that it had been broadcast in previous years without complaint.

The Broadcasting Advertising Clearance Centre (BACC) said, prior to the ad's broadcast, they had sought confirmation that a £100 penalty applied to anyone who submitted a tax return after the deadline and added that the ad had first been approved in 2005.  They argued that the hourglass concept was justified to alert the public to the impending deadline for submission of tax returns and, although they acknowledged that the ad was direct in approach, they believed there was no undue appeal to fear.  They said the ad's message was clear and simple; it helped consumers avoid penalty charges by highlighting when a fine would be imposed.
Assessment
1.  Not upheld
The ASA understood that HMRC applied an automatic £100 penalty to those who submitted their Self Assessment tax returns after the deadline date of 31 January.  We also noted, however, if there was no tax liability on behalf of the late respondent, the penalty would later be cancelled, and similarly, if the respondent's tax liability was less than £100, the penalty would later be restricted to the amount of that liability.  Under those circumstances, the full £100 penalty would be charged initially, but rectified at a later date.  

We considered that the claim "Send in your Self Assessment tax return by 31 January or you'll get a £100 penalty ..." implied everyone who submitted their tax return after the deadline date would receive a penalty of £100.  While we noted the complainants' concern that not everyone who submitted a late return would ultimately have to pay the full penalty, we considered that, because the fine was automatically generated and applied in every circumstance of late submission, there was no consumer detriment in alerting viewers to it.  We concluded that, by pointing out that a £100 penalty would apply to those who submitted their tax return after the deadline, the ad was unlikely to mislead.

On this point, we investigated the ad under CAP (Broadcast) TV Advertising Standards Code rule 5.1 (Misleading advertising) but did not find it in breach.

2.  Not upheld
We considered that the claim "Time is running out.  Send in your Self Assessment tax return by 31 January or you'll get a £100 penalty and start getting charged interest on anything you owe. You need to do it now", in conjunction with the image of the presenter falling with sand through an hourglass, created an impression of urgency and encouraged recipients of a Self Assessment tax return to respond before the deadline date.  We also considered, however, that the approach used in the ad was not extreme or disproportionate in view of its intention to encourage viewers to avoid penalty charges or interest, where applicable, by submitting their tax returns before the deadline date.  We concluded that the ad did not use an undue appeal to fear and was unlikely to cause serious distress to viewers.

On this point, we investigated the ad under CAP (Broadcast) TV Advertising Standards Code rule 6.4 (Harm and offence - Personal distress) but did not find it in breach.   
Action
No action required.



Adjudication of the ASA Council (Broadcast)

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