First-tier Tribunal (Tax)

[2011] UKFTT 144 (TC)

TC01018

Appeal number TC/2010/08477

 Procedure - appeal out of time under s49 Taxes Management Act -no extension granted under case management powers in rule 5 -appeal not admitted

FIRST-TIER TRIBUNAL

TAX

GEORGINA SADIQ Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY’S

REVENUE AND CUSTOMS Respondents

TRIBUNAL: Barbara J King (Tribunal Judge)

Sitting in public at North Shields on 16 February 2011

Mr Abdar Razak, of Razak & Co, accountants for the Appellant

Michael Musgrove, of HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2011

DECISION

Background

1.       This hearing concerned an application under rule 20 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 for an appeal to be admitted as the application was outside the time limit set down in section 49 of the Taxes Management Act.

2.       The decisions of the Respondent, against which the Appellant wishes to appeal, were issued on 18 August 2008.

3.       A letter from Razak & Co, dated 21 August 2008 had been accepted by the Respondents as a letter of Appeal to the Commissioners of HMRC, under the procedure in force before 1 April 2009. When no further replies were received from Razak & Co or the Appellant the Respondents wrote to Razak & Co on 22 April 2009 offering an independent review if a request for such was received within 30 days of the letter making this offer. The Respondents explained that new legislation had come into force on 1 April 2009 which allowed appeals to be made to the Tribunal Service within a further 30 days.

4.       No acceptance of the offer of review was received by the Respondents by 22 May 2009 and no appeal was lodged with the Tribunal service by 21 June 2009.

5.       On 14 July 2009 the Respondents received a letter from Razak and Co which enclosed an undated letter requesting a review.

6.        On 24 August 2009 an undated appeal notice was received by the Tribunals Service. A box had been ticked on this Appeal notice stating that the Appellant requested that time for making the appeal be extended but no explanation was given as to why the appeal was late.

7.       The Grounds for appeal contained only the phrase “We believe the officer’s assessment to be over-stated.”

8.       In a letter dated 2 October 2009 Razak & Co explain for the first time that their earlier letter requesting a review was dated 6 May 2009. Razak & Co indicate in this letter that they have had difficulties with their client but that she has agreed to provide information as to why the assessments of 18 August 2008 are wrong.

9.       Since October 2008 Razak & Co have provided bank statements for one account belonging to the Appellant. The Respondents have provided information to show that an earlier enquiry had been made into the Appellants tax returns for the years 2001/02, 2002/03 and 2003/04. The Appellant had earnings as a market trader in those years. Following those enquiries the Appellant had agreed to pay regular sums, for tax owing to the Respondents, under a settlement contract entered into on 25 September 2006. In the course of those earlier enquiries information had been obtained about other bank accounts and mortgages which are not now mentioned by the Appellant, nor any explanation given as to what happened to them. The Respondents have calculated that the income of the Appellant must have far exceeded that which she declared for the tax years  2004-05, 2005-06 and 2006 -07 for her to have been able to meet all her obligations in those tax years.

10.    The application for the late appeal to be admitted first came before the Tribunal on 3 March 2010 when the Appellant did not attend and permission to appeal was not given. The decision of 3 March 2009 was set aside on 28 September 2009 as the statement of reasons appears to record that the Tribunal had only applied a test of ‘exceptional circumstances beyond the control of the Appellant.’ A direction was given that wider consideration must be given as to whether the Appellant had reasonable grounds for succeeding in her appeal or whether undue prejudice would be suffered by the Appellant if permission was not given for the appeal to be lodged out of time.

11.    The rehearing of the Appellants application was listed first in November 2010 but was adjourned because the Appellant was unable to attend as she was out of the country at a family funeral.

12.    Notice of the hearing for 16 February 2011 was sent to Razak & Co on 23 November 2010.

13.    The Appellant did not attend this hearing. Mr Razak attended the hearing but left part way through because he had another appointment.

14.    Mr Razak said that he had asked his client to attend but she has indicated that she would not. He asked for an adjournment of the hearing today on the  grounds that he had not had time to prepare for the hearing because a few days earlier the Appellant had told him  she did not wish not pursue her appeal. She had been declared bankrupt last year, following the hearing on 3 March 2010 and had received advice from an insolvency practitioner. Mr Razak told the Tribunal that the Appellant had changed her mind on 15 February 2011, and now wished to continue with the application but this gave him no time to prepare for the hearing. He had no further information about the Appellants circumstances in the years from 2004 through to 2007 other than he thought market traders had had a down turn in profits at that time.

15.    The application for an adjournment was refused. The Tribunal considered that the Appellant had had since 2008 to produce information to support her appeal and since September 2010 she has known that she would need to provide that information if she wished to have the opportunity of having her appeal heard by a Tribunal.

Decision

16.    I took into account all the information which was available. I did not find that reasonable excuse had been shown for the delay in lodging the appeal. Even if the letter now dated 6 May 2009 had been sent, the Appellant’s agent had been told by a letter dated 2 June 2009 that nothing had been received. The Appeal to the Tribunal Service was not made until 24 August 2009 and it was made without any explanation for the further delay.

17.    I find that the Appellant has not shown that she has a reasonable prospect of success if her appeal was admitted.

18.    I have considered the over riding objective in rule 2 of the Tribunal Procedure(First-Tier Tribunal)(Tax Chamber) Rules 2009 and the Appellant’s failure to cooperate with the Tribunal.  I do not find that it is appropriate to extend the time for appealing under rule 5. The appeal is not therefore admitted as it was made out of time.

19.    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.

Barbara J King

TRIBUNAL JUDGE

RELEASE DATE: 25 February 2011