Closing date for furlough applications

neilmcl

LilElvis said:

neilmcl said:

unholyangel said:

leitmotif said:

unholyangel said:

You are only considered furloughed for the purposes of CJRS starting on the day you & your employer agree to the furlough in writing. 

6.7 An employee has been instructed by the employer to cease all work in relation to their employment only if the employer and employee have agreed in writing (which may be in an electronic form such as an email) that the employee will cease all work in relation to their employment.

You cannot retrospectively furlough yourself. You are either not required to be available for work or you are required to be available for work (even if no work comes in). 

See above. One-man limited company. I'm both employer and employee.

I know this, but the rules on the furlough start date are the same. There's no special consideration for one man bands. 

The point he's making is that as an ltd company director, he's in a position to produce back dated documentation stating that he was furloughed from the 1st of March, or whenever. The HMRC wont know whether it was backdated or not.

Unholyangel is right - HMRC will, over the coming years, be scrutinising these claims. Unlike normal investigations they will be focused on a very narrow timescale and will be totally aware of what infractions will have been perpetrated. I was an auditor for many years - mainly small and medium sized businesses like the OPs - and had the joy of dealing with the fallout from tax investigations whilst the clients were faced with repaying the underpaid tax (often NIC too), penalties, interest and our fees. In my last full-time job as payroll and benefits manager for a FTSE company I spent what felt like half my time dealing with auditors and HMRC - I even had my own dedicated Inspector who kindly visited me two or three times a year because of the nature of the payroll and particularly the benefits and the eye-watering amounts of additional tax due. This scheme is going to have to be paid for at some point and it is a reasonable assumption that the government would rather do so by clawing back wrongful claims than raising taxation on employees and companies. 

So again, how would the HMRC know if he's not been working whether he wrote the furlough "letter" at the beginning of his furlough period or whether he simply wrote at the end of the period and backdated it? The fact is a lot of us have had to "back date" our official furlough notification due to the scheme not being announced until late March/April if we wanted to claim from the 1st of march onward.

neilmcl

pleasedelete said:

You cant furlough from the 11th- the earliest is the 21st- the government didnt launch the scheme until the 20th March. You didn't make yourself redundant prior to the 20th March. 

Wrong. Claims can be made from March 1st.

neilmcl

unholyangel said:

leitmotif said:

unholyangel said:

The point we've been making is that one man bands are going to be subject to higher scrutiny. There are high risk areas for fraud and this is one of them for exactly the reason you mention..

I've presented a solution to the potential fraud issue (open-ended letter) above, but if (hypothetically) one did go down the route of amending a date retrospectively, it would be utterly undetectable.

It would be detectable. Just whether it would be worth the expense/effort of detecting it is another matter. 

But hmrc don't operate as normal. LilElvis said either on this thread or another about HMRC investigations and they were bang on the money. 

They come back to you in 12 years asking you to prove your income and you don't have the records? Thats okay, they'll just guess and then you have to prove them wrong. It's not a case of them having to prove it or you just holding up your hands and saying "sorry, can't help you". They just need to have suspicion and then can request access to all sorts of information to help them while still putting the burden on you to disprove their suspicions.

It's definitely not something I'd ever want to be on the receiving end of. 

Again, I think you're all missing the point. Leitmotif isn't trying to defraud HMRC by saying he's on furlough when he's not, all he was saying was whether he could simply wait until he chose to make a claim, say for example at the end of May, and claim that he was legitimately on Furlough for the past 3 months and write a backdated letter or company memorandum to document this fact. If he happens to get some work in the intervening period then he'd just claim for the period when he wasn't working, adjusting the date of his furlough letter, accordingly.

Personally I don't see the point as why he wouldn't want to simply put himself on official furlough as of 1st March until such time he gets some work, as long as he doesn't actively start looking for business that is.

unholyangel

neilmcl said:

unholyangel said:

leitmotif said:

unholyangel said:

The point we've been making is that one man bands are going to be subject to higher scrutiny. There are high risk areas for fraud and this is one of them for exactly the reason you mention..

I've presented a solution to the potential fraud issue (open-ended letter) above, but if (hypothetically) one did go down the route of amending a date retrospectively, it would be utterly undetectable.

It would be detectable. Just whether it would be worth the expense/effort of detecting it is another matter. 

But hmrc don't operate as normal. LilElvis said either on this thread or another about HMRC investigations and they were bang on the money. 

They come back to you in 12 years asking you to prove your income and you don't have the records? Thats okay, they'll just guess and then you have to prove them wrong. It's not a case of them having to prove it or you just holding up your hands and saying "sorry, can't help you". They just need to have suspicion and then can request access to all sorts of information to help them while still putting the burden on you to disprove their suspicions.

It's definitely not something I'd ever want to be on the receiving end of. 

Again, I think you're all missing the point. Leitmotif isn't trying to defraud HMRC by saying he's on furlough when he's not, all he was saying was whether he could simply wait until he chose to make a claim, say for example at the end of May, and claim that he was legitimately on Furlough for the past 3 months and write a backdated letter or company memorandum to document this fact. If he happens to get some work in the intervening period then he'd just claim for the period when he wasn't working, adjusting the date of his furlough letter, accordingly.

Personally I don't see the point as why he wouldn't want to simply put himself on official furlough as of 1st March until such time he gets some work, as long as he doesn't actively start looking for business that is.

Yes he is, because he is talking about backdating his furlough/retrospectively declaring himself as furloughed which cannot be done. You are only eligible for costs of employees who have been furloughed. You have only been furloughed at the point you & your employer have agreed that you are furloughed. Drawing up a document with falsified information afterwards so you could be eligible would be fraud. 

You're either not required to be available for work or you are. You can't be available for work and then decide that because no work came in you were actually unavailable. 

Leitmotif - I did see your question asking how it could be detected but I hope you understand why I'm not going to answer that question. It would be irresponsible of me.

LilElvis

There's already at least one easily proveable instance that the OP isn't currently furloughed - he has consulted with his accountant.

leitmotif

neilmcl said:

Personally I don't see the point as why he wouldn't want to simply put himself on official furlough as of 1st March until such time he gets some work, as long as he doesn't actively start looking for business that is.

I'll answer that with a quote from someone on the first page of this thread:

'if you need to return to work before the three week minimum period has elapsed, you can do so, the business just forfeits the ability to claim from the Government scheme for that period.'

If that's true, then a retrospective claim would be better, because it doesn't risk such a forfeit.

leitmotif

unholyangel said:

Yes he is, because he is talking about backdating his furlough/retrospectively declaring himself as furloughed which cannot be done. You are only eligible for costs of employees who have been furloughed. You have only been furloughed at the point you & your employer have agreed that you are furloughed. Drawing up a document with falsified information afterwards so you could be eligible would be fraud.

If you submitted an application on 20 April from, say, 1 March until 30 April, that would be a backdated claim. The company won't have drawn up a furlough agreement for the employee on 1 March, so the agreement will need to be backdated. The hypothetical situation I've outlined is not substantially different.

unholyangel said:

You're either not required to be available for work or you are. You can't be available for work and then decide that because no work came in you were actually unavailable.

The wording is 'an employee cannot undertake work for, or on behalf, of the organisation or any linked or associated organisation'. Availability doesn't come in to it. Waiting for a customer order = available. Acting on a customer order = undertaking work.

unholyangel said:

Leitmotif - I did see your question asking how it could be detected but I hope you understand why I'm not going to answer that question. It would be irresponsible of me.

Yes, I understand that, though not answering has the concomitant advantage of not having to acknowledge that it is utterly undetectable (not least because whatever methods of detection you might be imagining, besides being extreme, are easily covered).

leitmotif

LilElvis said:

There's already at least one easily proveable instance that the OP isn't currently furloughed - he has consulted with his accountant.

My accountant is a personal friend. He offers advice free of charge outside of working hours. There's no record of that advice and nothing to tie it to me. I might even be posting all of this here for a friend's company, to make it untraceable to him/her, or using a false e-mail address and VPN. Etc.

unholyangel

leitmotif said:

unholyangel said:

Yes he is, because he is talking about backdating his furlough/retrospectively declaring himself as furloughed which cannot be done. You are only eligible for costs of employees who have been furloughed. You have only been furloughed at the point you & your employer have agreed that you are furloughed. Drawing up a document with falsified information afterwards so you could be eligible would be fraud.

If you submitted an application on 20 April from, say, 1 March until 30 April, that would be a backdated claim. The company won't have drawn up a furlough agreement for the employee on 1 March, so the agreement will need to be backdated. The hypothetical situation I've outlined is not substantially different.

unholyangel said:

You're either not required to be available for work or you are. You can't be available for work and then decide that because no work came in you were actually unavailable.

The wording is 'an employee cannot undertake work for, or on behalf, of the organisation or any linked or associated organisation'. Availability doesn't come in to it. Waiting for a customer order = available. Acting on a customer order = undertaking work.

unholyangel said:

Leitmotif - I did see your question asking how it could be detected but I hope you understand why I'm not going to answer that question. It would be irresponsible of me.

Yes, I understand that, though not answering has the concomitant advantage of not having to acknowledge that it is utterly undetectable (not least because whatever methods of detection you might be imagining, besides being extreme, are easily covered).

I said you were attempting to backdate the furlough, not attempting to backdate the claim. The claim can be backdated, the furlough can't. The backdating the government referred to (being able to do it to the 1st march) was where employees had already effectively been furloughed (even if by a different name before the scheme was ever announced) and was speaking about backdating the claim, not the furlough. There are some lines of work where the furlough concept is well established and is not new like it is to everyone else with CJRS. 

Making yourself available for work (ie being "on call") is working time! That is a well established principle of employment law and is defined by the working time regulations which state that working time is any time you are at your employer's disposal. There is also case law on it showing that the courts define working time as time you are available to work even if you are not actively performing any duties at the time. Likewise there was also a decision that a period of time not spent working could not retrospectively be designated as a rest break just because after the fact, it became apparent they had done no work. 

Many solicitors and accountants have been highlighting the issues PSCs/sole directors are faced with trying to furlough. Some have not and have been advising clients that they can continue to work because there's no one else to do the work (despite this conflicting quite clearly with the directions & guidance) but then they have PI insurance they can rely on if they're wrong. What do you have to rely on if you're wrong? 

As for the detection, some of the methods I had in mind might be imagined but some are real - which is why I won't disclose them. I appreciate me not disclosing them draws doubt on what I said but that's something I accept. I might be quite outspoken in my opinions but I'm not interested in point scoring or getting one over on someone  

neilmcl

LilElvis said:

There's already at least one easily proveable instance that the OP isn't currently furloughed - he has consulted with his accountant.

Consulting with your accountant is well within the remit of office holder duties, which you are permitted to carry out whilst furloughed.