First-tier Tribunal (Tax)

[2009] UKFTT 285 (TC)

TC00229                   

 Appeal number: Trans September 697

Appeal against a fixed penalty of £600 for failure to file return online.

FIRST-TIER TRIBUNAL

TAX

                                       CLOVER CHEMICAL LTD                      Appellant

                                                                      - and -

                                 THE COMMISSIONERS FOR HER MAJESTY’S

                                              REVENUE AND CUSTOMS (Tax)          Respondents

                                                TRIBUNAL: Jennifer Blewitt

Sitting in public in Manchester on 6^th May 2009

Mr D. Eustace for the Appellant

Mrs P. Roberts instructed by the General Counsel and Solicitor to HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2009

DECISION

1.      This is an appeal against a fixed penalty of £600.00 for the Appellant’s failure to file a return online. The Tribunal heard oral evidence from Mr Eustace for the Appellant. Mr Eustace accepted that he was fully aware of the obligation to file a return online. He explained that Mr Griffiths had joined the Company as Financial Controller in approximately August 2007 and it was he who had submitted a paper return and did so without Mr Eustace’s knowledge. Mr Eustace stated that the paper return contained errors and was returned by the Respondent to the company with a covering letter dated 2^nd May 2008 in which he felt that HMRC instructed the Company to submit a paper copy. Mr Eustace produced to the Tribunal the letter from HMRC to the Company.

2.      Mrs Roberts for the Respondent contended that HMRC records indicated that the Company had been sent a P35N notice in February 2008. Mrs Roberts accepted that there was some ambiguity in the letter dated 2^nd May 2008, but stated that a paper P35 would not have been sent to the Company unless it had requested one. Mr Eustace said he was unaware whether Mr Griffiths had requested one.

3.      The Tribunal considered written correspondence in particular a letter dated 18^th July from Mr Griffiths to HMRC, in which Mr Griffiths explained that he had been unaware of the obligation to file online when the forms were returned due to errors and therefore requested more written forms and submitted them again. In a letter dated 8^th January 2009, Mr Griffiths explained that HMRC staff had not reminded him of the obligation to file online and had, effectively, allowed him to make the mistake.

4.      The Tribunal did not find that there was a reasonable excuse for failing to submit the return online. Mr Griffiths has been in the Company employment since approximately August 2007, during the period when the Company was sent a P35N notice. It was accepted by Mr Eustace that he was aware of the Company’s obligation to file online.

5.      The Tribunal find that it is not the duty of HMRC to remind companies of the correct method to file returns. The Tribunal find that sufficient notice and assistance concerning the Company’s obligations was given by way of P35N notice in February 2008 and also the reference to the Employer Help Book E10 when the documents were returned.

6.      Although the Tribunal accepted that the letter dated 2^nd May 2008 to the appellant was unclear, the Tribunal could not be confident that a paper P35 had been sent to the Appellant with the letter because page 2 of the letter invites the Appellant to contact HMRC if a P35 is needed. The Tribunal therefore concluded that Mr Griffiths had taken that course of action, which is indicted by the letter date 18^th July 2008.

7.      Not with standing the ambiguity of the letter from HMRC dated 2^nd May 2008, the Tribunal found that Mr Griffith’s ignorance of the obligation upon the Company to file online is not sufficient to amount to a reasonable excuse.

The appeal is dismissed

1.      The Appellant has a right to apply for permission to appeal against this decision pursuant to Rule 39 of the Rules.   The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.

J. Blewitt

TRIBUNAL JUDGE

RELEASE DATE: 15 June 2009