The First-tier Tribunal have not granted an application for a late appeal against several discovery assessments in respect of CGT on certain property purchases and disposals (Cenkci v HMRC  UKFTT 270 (TC)).
On 23 April 2021 the taxpayer’s agent had forwarded to HMRC an appeal letter dated 27 July 2020. HMRC had no record of receiving it before that date.
The tribunal judge first considered whether an appeal had been made on 27 July 2020 and concluded that “I do agree with HMRC, that the burden here is on the Appellant to show that an appeal was made on 27 July 2020. I find that the Appellant has not met that burden. The first evidence of the existence of the letter was on 9 February 2021 when Ms Nihat spoke to the DMB unit.”
The tribunal judge then had to consider whether the subsequent application for the late appeal should be granted. Applying the three stage test in Martland v HMRC  UKUT 178 she judged that:
- Length of delay – There were two periods of delay, one between the date of the appeal letter and the date that this was alerted to HMRC, the second between the date HMRC advised they would not accept the late appeal to the the date of the application to the tribunal – “Both of these periods exceed 5 months. There is no doubt that taken either on their own or together, these periods are both serious and significant.”
- Reason(s) for default – “it is the burden of the Appellant, through his agent, Ms Nihat, to show that the reason for the delay in making the appeal to the Tribunal was because the Appellant (or his agent) was under the impression that investigations were ongoing in HMRC. That burden has not been met.”
- An evaluation of “all the circumstances of the case” – This involves a balancing exercise which essentially assesses the merits of the reason(s) given for the delay and the prejudice that would be caused to both parties by granting or refusing permission – “Taking all the relevant circumstances that I have set out into account, I find that the factors against granting permission outweight the factors in support of granting permission.”
She concluded – “I therefore refuse permission for an appeal to be made late.”
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In Tax Appeals – Law and Practice at the FTT, tax barrister Keith Gordon analyses some 500 precedents to show how the FTT rules are applied in practice, and how taxpayers may use the tribunal system for appealing against tax decisions.