First-tier Tribunal (Tax)

[2011] UKFTT 26 (TC)

TC00903

Appeal number TC/2010/04004

Appellant’s income was overstated due to errors by accountant for years 1988-1992 – late claim  for ‘error or mistake’ to HMRC refused – appeal struck out under Rule 8(2)(a), the Tribunal having no jurisdiction

FIRST-TIER TRIBUNAL

TAX

                                            GEOFFREY ALLEN                                       Appellant

                                                                      - and -

                               THE COMMISSIONERS FOR HER MAJESTY’S

                                                  REVENUE AND CUSTOMS                            Respondents

TRIBUNAL:             Mr Michael S Connell (Tribunal Judge)

Mr A W Holden (Member)

Sitting in public at Cunard Building  Liverpool on 29 September 2010

Mr Allen did not attend

Mr B Morgan, Officer of HMRC, appeared on behalf of the Respondents

 © CROWN COPYRIGHT 2010

DECISION

1.         This is an application by HMRC for the Appellant’s appeal to be struck out under the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 Part 8(2)(a) on the basis that the Tribunal has no jurisdiction in relation to the proceedings.

2.         The Appellant has requested the Tribunal to rule that HMRC should conduct a review of his tax affairs in the light of alleged errors on the part of HMRC over the last 18 years or so.

3.         Mr Allen discovered that the accounts of his dental practice had been overstated due to errors by his previous accountant between 1987 and 1998.  He lodged an ‘error or mistake’ claim with HMRC in or around 1999/2000.  The claim was reviewed and allowed for the years back to 1993/94 under the 6-year rule.

4.         Mr Allen claims that HMRC should allow the claim for the out of date years 1988/92.  The claim was reviewed in January 2005 and was again reviewed in June 2007 and July 2009.  It has also been reviewed on the involvement of Mr Allen’s local MP.  Mr Allen has therefore had at least three reviews in the last five years on the same issue.

5.         HMRC may in certain circumstances exercise its general powers of care and management to grant such relief as would have been due if the claim had been made within the time limits applicable to the claim.  Those circumstances are broadly where the taxpayer or his agent – firstly had been misled by some relevant and uncorrected error on the part of HMRC and the claim is made shortly after the error was drawn to the taxpayer’s attention – secondly where an informal claim has been made within the time limit which fell short of a clear and unambiguous statement of what was being claimed but which the Appellant reasonably believed was an acceptable claim – and thirdly where an ‘in date’ claim had not been made for reasons beyond the Appellant’s control, such as serious illness and there being no other person able to make the claim.

6.         The years for which the Appellant seeks relief fall outside the 6-year statutory term limit for making such a claim and none of the limited circumstances referred to in the previous paragraph apply in this case.

7.         In the Appellant’s appeal to the Tribunal, he refers to HMRC’s decision letter of 29.03.10.  This letter is not a decision letter but merely a restatement by HMRC of its previously expressed view on the matter, being that the Appellant’s case had been reviewed previously several times and a further review was not appropriate.

8.         For the above reasons the Tribunal determined that the proceedings should be struck out on the basis that the Tribunal does not have jurisdiction in relation to the proceedings.

9.    This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009.   The application must be received by this Tribunal not later than 56 days after this decision is sent to that party.  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.

          MICHAEL S CONNELL

TRIBUNAL JUDGE

RELEASE DATE: 29 DECEMBER 2010

Amended pursuant to rule 37 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 on 28 March 2011.