First-tier Tribunal (Tax)

[2010] UKFTT 77 (TC)

TC00389  

 Appeal number: TC/2009/10871

IT FIXED AUTOMATIC PENALTY FOR LATE RETURN – whether reasonable excuse – HMRC decision upheld

FIRST-TIER TRIBUNAL

TAX

                                                 JOHN TAYLOR                                Appellant

                                                                      - and -

                                 THE COMMISSIONERS FOR HER MAJESTY’S

                                                   REVENUE AND CUSTOMS               Respondents

TRIBUNAL: Judge WDF Coverdale

The Tribunal determined the appeal without a hearing under the provisions of Rule 26 of the Tribunal Procedures (First Tier Tribunal) (Tax Chamber) Rules 2009

© CROWN COPYRIGHT 2009

DECISION

1. This is an appeal against a first fixed automatic penalty imposed for the late filing of a personal Tax return by Mr Taylor for the year ending 5 April 2008.

2. The HMRC Case Statement discloses that a Notice to File was issued on 06/04/2008. This form advised of the filing dates for the 2007/08 tax return namely 31 October 2008 for a paper return or 31 January 2009 if filed online. Penalty details were included on the form.

3. According to HMRC records a telephone call was made to Mr Taylor on 12/2/2009 advising him that the 2007/08 return was still required; a return form was sent to him by post.

3. HMRC further submit that in the absence of a return a penalty notice in the sum of £100 was issued on 17/2/2009.

4. HMRC received a paper return from Mr Taylor on 23/2/2009.

5. Mr Taylor requested a review of the Decision to issue a penalty notice but HMRC declined to revise the decision.

6. Mr Taylor has appealed the penalty notice; in both his Request for Review of the Decision and in his Letter of Appeal he states that he returned his tax forms “in time”. In the Request for Review he also states that he returned his tax returns “long before the deadline”.

7. In the Request for Review Mr Taylor also mentions delays by HMRC in dealing with correspondence.

8. The Tribunal notes that tax of £271.56 was due from Mr Taylor at 31 January 2009.

9. S93(2) of the Taxes Management Act 1970 provides that where a person fails to deliver their Return within the time limits they are liable to a penalty of £100. Under S93(8) an appeal may be made and the Tribunal may set the penalty aside if it appears that the person had a “reasonable excuse throughout the period of default for not delivering the Return by the filing  date.

10. If it is right that HMRC first received Mr Taylor’s Return for 2007/2008 on 23/2/2009 the period of default in this case is from 31/10/2008 to 22/2/2009 i.e. 115 days.

11. The Tribunal has considered the matter of “reasonable excuse”. It is first necessary to determine the date that HMRC did receive Mr Taylor’s Return. He maintains that he returned it “long before the deadline” but he has produced no evidence to this effect, such as a certificate of posting or Recorded Delivery documentation from the Post Office. What is certain is that HMRC received a Return from Mr Taylor on 23/2/2009. The Tribunal makes a finding of fact that the Return received by HMRC on that date was the form sent to Mr Taylor by post on or about 12/2/09. If Mr Taylor wishes to argue that this Return was one that he had submitted “long before the deadline” of 31/10/2008 then it would have taken the Post Office more than three and a half months to deliver it. That is not credible.

12. The period of default in this case is, therefore, indeed 115 days, from 31/10/2008 to 22/2/2009. No other excuse has been submitted by Mr Taylor and the Tribunal concludes that there was no reasonable excuse in this case for the failure to file the tax return within the prescribed time.

13. Accordingly this appeal is dismissed.

14. 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.

TRIBUNAL JUDGE

RELEASE DATE: 12 January 2010