First-tier Tribunal (Tax)

[2011] UKFTT 103 (TC)

TC00979

  Appeal number TC/2010/08306

INCOME TAX – appeals made more than 15 months late – should permission be given for these appeals? No on the facts

FIRST-TIER TRIBUNAL

TAX

Mr KEVIN P O'BRIEN Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY’S

REVENUE AND CUSTOMS Respondents

TRIBUNAL: ADRIAN SHIPWRIGHT (TRIBUNAL JUDGE)

SANDI O’NEILL (TRIBUNAL MEMBER)

Sitting in public at 68 Lombard Street, London EC3V 9LJ on 17 January 2011

The Appellant did not appear

Eleanor Gardiner of HM Revenue and Customs appeared for the Respondents

© CROWN COPYRIGHT 2011

DECISION

1.     The Appellant did not appear for the hearing at the appointed time and place. Having waited for the Appellant to appear the Tribunal being satisfied that the Appellant had been notified of the hearing and that reasonable steps had been taken to notify the party of the hearing and considering that it was in the interests of justice to proceed with the hearing proceeded with the hearing under Rule 33 (Hearings in a party's absence) of the Tribunal Rules. The Tribunal decided that the appeals were brought out of time and that the conditions for a late appeal in section 49 TMA were not satisfied and the appeals are dismissed.

2.      Mr O’Brien ("the Taxpayer") has appealed assessments raised for the years of assessment 2002 – 2003, 2003 – 2004 and 2005 – 2006. These were issued on 12 March 2009. An assessment was raised for 2006 – 2007 on 11 March 2009.

3.     The Taxpayer lodged his appeals on 20 August 2010. He has sought permission for late appeals to be accepted. This decision is solely concerned with permission for late appeal.

4.     It is common ground that:

(1)  the Taxpayer  was out of the United Kingdom for approximately 4 months from December 2008 until April 2009;

(2)  notices of assessment were issued as detailed above;

(3)  appeals were lodged on 20th of August 2010;

(4)  HMRC advise the Taxpayer  that they did not accept the late appeals on 23 September 2010;

(5)  the Taxpayer  sought permission for the late appeals to be accepted on 28 October 2010

5.     The appeals were over 15 months late in being made. The usual period for appeal is 30 days from the assessment. The Taxpayer by then had been back in the United Kingdom for more than a year.

6.     We find as a fact that the assessment and other correspondence was received at the correct address (i.e. his mother’s home) and passed on to the Taxpayer. This is clear from:

(1)  The call HMRC received from the Taxpayer’s mother on 26 September 2009; and

(2)  The Appellant’s call to HMRC on 1 December 2009.

7.     The Taxpayer says in his appeal notice that he was not aware paperwork had to be submitted and that the amendments are unjustifiable and he did not have a chance to dispute them. He also said that, on his return, he did not understand the seriousness of his situation otherwise he would have sought expert professional advice earlier.

8.     We note that any Taxpayer may well have been able to dispute amendments if the appeal had been made in time. Time limits are there to give certainty and are to be respected unless a good reason is shown why they should not be adhered to.

9.     No reasonable excuse argument was put forward by the Taxpayer. No explanation was provided to us as to why the appeals were made so late.

10.  On the information before us there is no reason shown to allow late appeal after such a long unexplained delay.

11.  Accordingly, we refuse permission for the late appeal and dismiss the appeal.

12.  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.

ADRIAN SHIPWRIGHT

TRIBUNAL JUDGE

RELEASE DATE: 3 FEBRUARY 2011