The First-tier Tribunal has dismissed an application for a late appeal against certain income tax assessments. With regards to the associated penalties, the tribunal found that “HMRC has failed to establish that a penalty notice was issued on 2 May 2019. Therefore there is no appealable decision on that issue before this Tribunal.” (Vekaria v HMRC  UKFTT 288 (TC)).
The grounds for the late appeal were that:
- HMRC’s letter dated 28 March 2019 (“the March letter”) contained assessments and they were appealed in time in a letter dated 15 April 2019 (“the April letter”).
- HMRC issued two assessments on 29 April 2019 and the April letter, which predated and anticipated them, was an in-time appeal against those assessments; and
- It was reasonable for the appellant to believe that the assessments had been appealed in time and even if it was now held that they were not, then in all the circumstances the tribunal should extend the time limit under TMA 1970, s.49.
However, the tribunal judged that:
- “The March letter is not an assessment and nor does it contain assessments. … ‘assessment particularises the exact sum which a person is liable to pay’ [per Whitney v Commissioners of Inland Revenue  UK HL TC 10 88] … The March letter simply does not do that. It indicates the sum that HMRC think is likely to be due but invites comment and further submissions and says that, effectively, the issue is open for discussion.” As there had been no assessments issued at that point the April letter could not have been a valid appeal.
- “The appeal must be after the issue of the assessment. Furthermore it must be sent to the relevant officer of the board. Accordingly the argument that an appeal can simply be sent to HMRC and it can be expected that it would be forwarded to the correct department cannot be correct. Not only are these issues clear from the wording of statute but it would make a nonsense of the statute if taxpayers could lodge pre-emptive appeals sent to any office of HMRC. … I find that the April letter did not appeal the assessments.”
- Applying Martland v HM Revenue & Customs  UKUT 178 (TCC) it was held that the delay in the application was both serious and significant, there was no explanation for the delay and no other circumstances that justified the acceptance by the tribunal of a late appeal.
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