couple split up and only 1 member of previous couple returned annual declaration. As other party did not return declaration overpayment of £1200 has been created and they are pursuing party who complied.
Any recourse apart from discretion to waive recovery?

thanks

I suppose it's what you have to expect - always take the easy option!

Have you looked at the new COP26? I think there is a section in there about this sort of situation, but am unsure whether it helps.

Although legally they can go after either party, if the other party is easily traceable (still paying paye, for example) then it is arguable that HMR&C are acting unfairly and irrationally and if you whisper the words judicial review at them then they might be persuaded to go after the other party first.

If the couple split and notified TCO of the seperation before the annual declaration was issued then I would dispute the overpayment completely on behalf of your client, since your client cannot be held responsible for the acts or ommissions of a former partner. The jointly and severally liable rule applies if the couple are still together or were together at the time of the ann. dec. being issued or if they failed to notify of the split. Once a couple has seperated and reported the seperation to the TCO then your client's responsibility is to return the information requested of him/her, which they have done. I've argued this before and won.

I'm not quite sure if this is helpful but you could refer them to their own Compliance Manual.

You can view it from the Toolkit section of this web-site. Have a look at Chapter 8 which says the following:

CCM8270 - Closing the Examination
Who will meet the settlement? - A couple who are jointly responsible for the debt and penalties
Where the couple is jointly and severally liable to repay the overpayment and are both considered to be guilty of fraud or neglect, you will be seeking a joint letter of offer. This will be in both of their names and will be signed by both of them. If this is accepted, the settlement charge (the 94A) will show both of their names and the recovery officer will then pursue either of them or both of them to settle the charge.

I know there is a problem with getting HMRC to consider the Compliance Manual as they seem to regard it as soley related to fraud, but that clearly isn't the case because it clearly states "fraud or neglect".