If your business goes bust, will HM Revenue & Customs ask you for a deposit in any new phoenix?
The recent Aerospace Tooling Limited case (click here for link HMRC Deposit) has given further guidance on the circumstances where it is reasonable for HM Revenue & Customs to insist on a phoenix operation giving a deposit.
The case shows that not only is it reasonable for HMRC to take into account the accounting and payment history of the directors in the earlier, failed, business, but factors such as the failure by the phoenix to submit returns or payments on time or to give HMRC details of its finances can also be taken into account. This seems to be common sense to me as it is unreasonable to expect HMRC, as an involuntary creditor, to undergo more than normal commercial risk of non-payment.
Directors of a company considering going into any formal insolvency, who wish to continue in business should consider the cash implications of any HMRC deposit on the phoenix as they can be very significant, even to the extent of altering the course for resolving the old company’s financial problems or forcing the closure of the phoenix operation before it really gets off the ground.