An alternative approach to recover unpaid duties is for the inspector to make a reg. 80 determination (Income Tax (Pay As You Earn) Regulations 2003 (SI 2003/2682)). If it appears to the inspector that tax which is due to the collector under reg. 68 has not been paid and the collector has not certified that tax under reg. 77 or any other regulation, he may determine to the best of his judgment the amount due and serve a notice of determination on the employer. Although the determination relates only to income tax, NICO will be notified of the determination and that department will pursue the collection of NIC.
For the purposes of the procedures relating to assessments, appeals and the collection and recovery of tax, a reg. 80 determination is to be treated as if it were an assessment and TMA 1970, s. 61, 65 and 66 will apply to the recovery of the tax due. However, it should be noted that s. 55 (recovery of tax not postponed) does not apply so that, on an appeal against a reg. 80 assessment, all the tax should be held over from collection. However, interest is chargeable under TMA 1970, s. 86 in respect of reg. 80 determinations, so the employer may wish to make a payment on account to avoid this.
If the tax is unpaid 30 days after the reg. 80 determination has become final and conclusive, HMRC may resort to the employee for recovery under reg. 81 if the Board consider that a direction could have been made under reg. 72(4) (employee receiving earnings knowing that his employer wilfully failed to apply PAYE correctly). The employee must have had actual knowledge, e.g. a director/shareholder in a private company who draws remuneration gross leaving the PAYE debt in an insolvent company.
The inspector’s power under reg. 80 is part of HMRC’s managerial discretion (Wright v Field (HMIT)  BTC 20) and it is a defence against a reg. 80 determination to show that the employer was someone else (Andrews v King (HMIT)  BTC 338).