First-tier Tribunal (Tax)

[2009] UKFTT 364 (TC)

                                                                                                TC00302

Appeal number: LON/2009/0200

Extension of time – Late appeal – Application for leave to appeal out of time 

FIRST-TIER TRIBUNAL

TAX CHAMBER

                              OBHLOISE BENJAMIN OGEDEGBE             Appellant

                                                                      - and -

                                 THE COMMISSIONERS FOR HER MAJESTY’S

                                                   REVENUE AND CUSTOMS               Respondents

                                                TRIBUNAL: $IR STEPHEN OLIVER QC

Sitting in public in London on 2 December 2009

The Appellant in person

Pauline Crinnion, for the Respondents

© CROWN COPYRIGHT 2009

DECISION

1.         The Appellant, Mr O B Ogedegbe, has applied for an extension of time within which to make his appeal. 

2.         The decision itself was issued on 8 December 2006.  It is a tax assessment in the sum of £6,027 plus interest of £814.  The assessment relates to input tax claimed for business expenses by a business conducted by the Appellant himself.  That business is known as Megapro.  The assessment was apparently raised because the Appellant had been claiming input tax in respect of expenses said to have been incurred in the course of Megapro’s business of making taxable supplies.  To the extent that relief had been given for the input tax, this was said to be wrong because, throughout the period from 11/03 until the period 8/06 inclusive the VAT returns showed no taxable sales as having been made by the Appellant trading as Megapro.

3.         The tax assessment itself draws attention to the notes attached and concerning the taxpayer’s rights of appeal. 

4.         On 2 February 2007 the Appellant wrote to the default surcharge appeals team stating that he wished to appeal against the surcharge of £6,841.  No surcharge had been involved in the tax assessment.  HMRC, by various letters written in the middle of 2007, invited the Appellant to request a reconsideration.  On 29 October 2007 HMRC asked the Appellant to provide, within 21 days, evidence by way of appointment books or other records to substantiate his claims that he still intended to trade as a consultant and to make taxable supplies.  A reconsideration did indeed take place and on 13 February 2008 HMRC wrote to the Appellant as follows:

“In conclusion, although you advised that you have/are intending to make taxable supplies as a consultant, the reality is that you have not actually made any taxable supplies, you have only actually made exempt supplies, and therefore you are not entitled to recover any input tax, in accordance with the legislation already quoted above.”

The letter explained to the Appellant that any appeal was out of time but that he might wish to request the Tribunal to grant an extension.  Nothing happened until late November 2008 when a Notice of Appeal was duly served by the Appellant.  This, for some reason which is not obvious, refers to the sum of £7,730 as being in dispute; it refers to the dispute as relating to a penalty for misdeclaration and to an assessment of tax.

5.         The Appellant explained that throughout 1998 he had not been well and could not appeal.  No medical certificate has been produced to evidence the extent of the Appellant’s illness. 

6.         On any basis the appeal is long overdue.  No proper appeal was made against the tax assessment of December 2006.  Even if the letter of 13 February 2008, from which the above quotation has been taken, can be signified as a consent to a late appeal, the appeal (actually made in November 2008) was still many months out of time.

7.         While this Tribunal has got power to extend the time for making an appeal, this will only be granted exceptionally.  Moreover, there must be at least an arguable case for making the appeal.  In the present circumstances I cannot see that the Appellant has even an arguable case.   He has at no time provided evidence of any taxable supplies during the period to which the tax assessment relates.  He has shown no grounds for a conclusion that the expenditure, to which the input tax related, was incurred for the purpose of making taxable supplies. 

8.         The combination of the facts that the appeal was lodged many months late and that the appeal had no realistic chance of success persuade me that the Appellant’s application for an extension of time should be refused. 

9.         Application dismissed.

10.       This is a full decision for the purposes of rule 35 of the Tax Chamber Rules 2009.

SIR STEPHEN OLIVER QC

CHAMBER PRESIDENT

RELEASE DATE: 11 December 2009