First-tier Tribunal (Tax)

[2011] UKFTT 231 (TC)

TC01096

Appeal number: TC/2010/09346

Late Partnership return. Reasonable excuse.

FIRST-TIER TRIBUNAL

TAX

MR. M. RIAZ Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY’S

REVENUE AND CUSTOMS Respondents

TRIBUNAL: GERAINT JONES Q.C.

The Tribunal determined the appeal on 30 March 2011 without a hearing under the provisions of Rule 26 of the Tribunal Procedure (First-tier Tribunal)(Tax Chamber) Rules 2009 (default paper cases) having first read the Notice of Appeal dated 07 December 2010 and HMRC’s Statement of Case submitted on 19 January 2011.

© CROWN COPYRIGHT 2011

DECISION

1.       On 14 January 2010 the appellant, the representative partner for a partnership between himself and Mr Tahir, was sent a notice to file a Partnership Tax Return for the fiscal year ended 5 April 2009. It was required to be filed by the 21 April 2010.

2.       HMRC contend that an incomplete partnership return was received on 14 June 2010 and that no valid return was received until 7 September 2010. On 6 July 2010 late filing penalty notices for £100 each were sent to the two partners in the partnership.

3.       On 29 July 2010 the appellant's agent, IAB & Co, wrote to HMRC contending that there had been no late filing. Unfortunately the letter is not easy to follow. In the second paragraph of the letter it is asserted that the partnership tax return was created and issued by HMRC in January 2010. Surprisingly, in the very next sentence, the letter goes on to assert that the appellant then contacted the tax office to notify it that no partnership tax return had been received for the fiscal year ended 5 April 2009. I think the letter might mean that the telephone call was made to inform HMRC that no earlier return had been received and that the return received in January 2010 was the first return received by the partnership. However, that can be no more than my interpretation of an otherwise difficult and confusing paragraph.

4.       The same letter then goes on to say, in the third paragraph, that the appellant received a letter in early February 2010 from HMRC “of the notification of submitting the partnership return but without receiving the Partnership Tax Return 2008/2009.” It is difficult to know what is meant by that sentence.

5.       In the same letter it is asserted that a paper version of the Partnership Tax Return was sent to HMRC either at the end of March or at the beginning of April 2010. The letter asserts that that return could not have been received by HMRC. Then, in rather strained logic, the fourth paragraph of the letter goes on to assert that the accountants can “confirm” that the Partnership Tax Return was submitted because, at the same time, the partners’ individual tax returns were submitted. The final sentence is to the effect that the accountants can confirm that they completed the paper version of the Partnership Tax Return at the end of March or in early April 2010. Nowhere do they vouch to it having been sent or posted to HMRC at any particular time.

6.       Appeals are heard and determined on the available evidence. I do not consider the assertions or material set out in the letter of 29 July 2010 to be sufficiently accurate or cogent to allow me to decide that, as a matter of probability, the partnership return was sent to HMRC in late March or early April 2010. There is firm evidence from HMRC that an incomplete return was received on 14 June 2010 but there is no reference, by the accountants, to them sending any return that could or should have been received around that date. I find as a fact that the return was not submitted on or before the filing date.

7.       In circumstances where the appellant does not claim that there was a reasonable excuse for late filing but, instead, contends that there has not been late filing, upon my finding of fact, set out above, that no return was sent to HMRC prior to the filing date, this appeal must be dismissed.

8.       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.