First-tier Tribunal (Tax)

[2010] UKFTT 82 (TC)

TC00394

Appeal number TC/2009/12466

Fixed penalties: Self assessment. Late filing of tax return. Whether payment of tax by due date and provision of relevant information amounts to reasonable excuse.

FIRST-TIER TRIBUNAL

TAX

FARZANA HAQUE

                                                                                                             Appellant

                                                                      - and -

                                 THE COMMISSIONERS FOR HER MAJESTY’S

                                    REVENUE AND CUSTOMS (INCOME TAX) Respondents

                                                TRIBUNAL: Paulene Gandhi (tribunal judge)

                                                                        Andrew Perrin (member)

Sitting in public in London on 23 November 2009

Ms Haque appeared in person

Mr Lewis of HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2010

DECISION

1    This was an appeal against a £100 fixed penalty for the failure to file a tax return by the due date for the year 2007-08. 

2   There does not appear to be a dispute between the parties as to the relevant facts.

3   Ms Haque accepts that she did not submit her tax return on time.  However she states that she made every effort to submit her return on time.  Before the change in law she had submitted paper returns which were due by 31 January of the particular tax year.  After the change in law (which now meant that paper returns had to be submitted by 31 October and electronic returns by 31 January - s8  TMA 1970) because she still wanted to submit her return on or before 31 January 2009 she did not complete the paper tax return but decided instead that she would file her return on line.  She registered for an activation pin twice.  The first time was on 17 December 2008.  She then went on holiday on 20 December 2008 for two weeks.  Upon her return on 16 January 2009 Ms Haque tried using her activation pin but it didn’t work. As it turned out this was because she had not used the pin within 28 days of it being issued so it had expired.  She said she did not know that the pin would expire.  We note however that this is clearly written on the letter sent to her with her pin both in the text of the letter and in bold and capitals at the very top of the letter as well as this information being available on HMRC website.  As her pin was not working Ms Haque immediately reapplied for another pin on 16 January 2009.  She received this second pin on 23 January 2009.  This time there appeared to be some error and she was still not able to file her return on line.  As the paper return stated that it could not used if it was after 31 October 2008 Ms Haque instead sent all the information required with a cheque for the amount of tax owed to HMRC.  We accept that this was sent on 29 January 2009 by next day delivery and had HMRC not had a redirection service in place it would have been received by the filing deadline of 31 January 2009. 

4    There is an automatic fixed penalty of £100 if the return is not delivered by the filing date - s93 TMA 1970

5    We have considerable sympathy for Ms Haque in that she had started a new job and could only contact HMRC’s phone helpline after 9pm to try to find out why she could not file her return on line.  She also became flustered by this stage as she was unable to get through to HMRC by phone and the deadline for filing her return was approaching.  However despite Ms Haque stating that she was unable to find the opening hours of HMRC’s help line we find that the opening hours are clearly set out in HMRC’s website site under ‘contact HMRC services helpdesk’.  Further the helpline operated at weekends and Ms Haque made no attempt to contact the helpline over the weekend when she was not working. 

6   Technical errors with HMRC’s web site can amount to a reasonable excuse but in this case the first error was not a technical error but simply that Ms Haque’s pin had expired and we find she should have known of this given it was clearly set out in the letter she was sent and on HMRC’s website. 

7    Further although she still had difficulties in filing on line after receiving the second pin she made no make attempt to contact HMRC during their opening hours.  Regardless of the fact that she caused no prejudice to HMRC as they had both the tax owed and the information required to check her tax calculations by the due date we have no discretion in this matter. Ms Haque is required by law to file her tax return for on line submission by 31 January 2009 which she did not do.  It is not enough to send the information in the tax return and a cheque for the tax owed without also sending the completed tax return.  Further the fact that all the tax due had been paid does not constitute a reasonable excuse as the penalty is imposed for late filing of the return, which is a separate matter from payment of the tax.  We thus find there was no reasonable excuse in this case. 

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: 28 January  2010