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Cite as: [2011] UKFTT 564 (TC)

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Dunscar Garden Centre Ltd v Revenue & Customs [2011] UKFTT 564 (TC) (22 August 2011)
INCOME TAX/CORPORATION TAX
Penalty

[2011] UKFTT 564 (TC)

TC01409

Appeal number: TC/2011/01986

P35 return—Penalty for late return (Taxes Management Act 1970 s.98A)—Reasonable excuse—Appeal dismissed

FIRST-TIER TRIBUNAL

TAX

DUNSCAR GARDEN CENTRE LIMITED Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY’S

REVENUE AND CUSTOMS Respondents

TRIBUNAL: Dr Christopher Staker (Tribunal Judge)

The Tribunal determined the appeal on 13 July 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 9 March 2011, HMRC’s Statement of Case dated 7 April 2011, and other papers in the case.

DECISION

Introduction

1. The Appellant appeals against penalties totalling £600, imposed in respect of the late filing of its P35 employer’s annual return for the tax year 2009/10. The deadline for filing the return was 19 May 2010.

The relevant legislation

2. Regulation 73(1) of the Income Tax (Pay As You Earn) Regulations 2003 imposes on an employer the obligation to deliver to HMRC a P35 return before the 20th day of May following the end of a tax year. Paragraph (10) of that regulation provides that Section 98A of the Taxes Management Act 1970 (the “TMA”) applies to paragraph (1) of that regulation.

3. Section 98A of the TMA relevantly provides as follows:

(2) Where this section applies in relation to a provision of regulations, any person who fails to make a return in accordance with the provision shall be liable—

(a) to a penalty or penalties of the relevant monthly amount for each month (or part of a month) during which the failure continues, but excluding any month after the twelfth or for which a penalty under this paragraph has already been imposed, ...

(3) For the purposes of subsection (2)(a) above, the relevant monthly amount in the case of a failure to make a return—

(a) where the number of persons in respect of whom particulars should be included in the return is fifty or less, is £100, ...

4. Section 100(1) of the TMA authorises HMRC to make a determination imposing a penalty under s.98A of the TMA in such amount as it considers correct or appropriate. Section 100B of the TMA provides for an appeal against the determination of such a penalty. Section 100B(2)(a) provides that in the case of a penalty which is required to be of a particular amount, the Tribunal may

(i) if it appears ... that no penalty has been incurred, set the determination aside,

(ii) if the amount determined appears ... to be correct, confirm the determination, or

(iii) if the amount determined appears ... to be incorrect, increase or reduce it to the correct amount.

5. Section 118(2) of the TMA provides as follows:

(2) For the purposes of this Act, a person shall be deemed not to have failed to do anything required to be done within a limited time if he did it within such further time, if any, as the Board or the tribunal or officer concerned may have allowed; and where a person had a reasonable excuse for not doing anything required to be done he shall be deemed not to have failed to do it unless the excuse ceased and, after the excuse ceased, he shall be deemed not to have failed to do it if he did it without unreasonable delay after the excuse had ceased.

The arguments of the parties

6. An internal HMRC review dated 9 February 2011 of the penalty determination states as follows. The Appellant appealed on the ground that his agent failed to carry out their duties and responsibilities in submitting the P35 form, and that when the error was noticed the return was then filed. The Appellant has been diligent in making payments and submitting returns previously, and if the Appellant had been notified by HMRC of the problem sooner it could have been rectified earlier. The internal review rejected the appeal on the ground that the Appellant’s reliance on the agent was not a reasonable excuse, that past compliance is not material as each year is considered on its own merits, and that penalty notices are not reminders to make payments and HMRC is not legally obliged to issue reminders.

7. The Appellant’s case as stated in the notice of appeal is as follows. The agent was contracted to file the return, but did not do so. This arrangement has been in place since the introduction of on-line filing and has never failed before. In previous years, the Appellant has had difficulty accessing the HMRC Payment Gateway, and it was more effective to employ a payroll agent. While it is accepted that the responsibility is ultimately the Appellant’s, the Appellant had no way of knowing that the return had not been filed until the penalty notice arrived. The Appellant submitted the return personally as soon as the agent confirmed that this had not been done. The Appellant has an unblemished tax record of 63 years, and this should have been taken into account, rather than applying the same penalty that would apply to tax recidivists. Although HMRC say that they are not required to issue reminders or follow a particular timetable in issuing penalty notices, HMRC commonly do issue reminders. HMRC could easily have done so in this case, and exacerbated the situation by not doing so. Had a penalty notice been issued after 2 months, the penalty would have been only £200. This is a matter entirely within the control of HMRC. Furthermore, HMRC have suffered no loss as a result of the late payment. There was no malice, but a simple mistake. The Appellant has learnt its lesson. It is an abuse of power for HMRC to continue to apply the penalty simply on the ground that they can.

8. The HMRC statement of case states amongst other matters as follows. The responsibility for filing the return on time rests solely with the Appellant and this responsibility cannot be transferred to an agent. If the agent was at fault as claimed, the Appellant should seek redress against the agent. It was the Appellant’s responsibility to check that the agent was complying with its responsibility, and it appears that the Appellant did nothing to check until the penalty notification was received. There is no statutory timetable for issuing penalties. A first interim penalty is issued if the return has not been received after four months. A second interim penalty is issued where the return has still not been received after a further four months. A penalty notice is not a reminder to submit a return, and HMRC has no statutory obligation to issue reminders. HMRC submits that the Appellant has no reasonable excuse for the late filing of the return.

9. A reply by the Appellant to the HMRC statement of case adds amongst other matters that it would be time consuming and costly to sue their agent, that HMRC’s insistence on pursuing the penalty is a matter of vengeance rather than of prevention of recurrence, and that the Appellant considers that it has been treated unfairly.

The Tribunal’s view

10. The Tribunal must determine questions of fact on the evidence before it on the basis of the balance of probability.

11. There is no dispute that the return was not filed until 20 October 2010. The only issue in this appeal is whether the Appellant has a reasonable excuse for the late filing.

12. The Tribunal accepts the HMRC submission that a penalty notice is not a reminder to submit a return, and that HMRC has no statutory obligation to issue reminders.

13. In relation to the HMRC argument that reliance on a third party, in this case a payroll agent, does not amount to a reasonable excuse, the Tribunal notes that in Devon & Cornwall Surfacing Limited v HMRC [2010] UKFTT 199 the Tribunal found at paragraph 20 that it had been “reasonable for the Company to rely on its secretary to comply with its tax obligations and it was this reliance which led to the failures to meet its obligations”. That decision concluded at paragraph 23, referring to Rowland v HMRC [2006] STC (SCD) 536 and other cases, that “reliance on a third party, such as the company secretary, can be a reasonable excuse in the direct tax context”.

14. The Tribunal notes that this case concluded that reliance on a third party “can” be a reasonable excuse, not that it necessarily always will be a reasonable excuse.

15. In Rowland, which was the case particularly relied upon in the Devon & Cornwall Surfacing case, it was found that reliance on specialist accountants could in certain circumstances constitute a reasonable excuse for the purposes of s.59C(9)(a) of the Act. That was a case in which the appellant did not pay the tax on the due date because she had been expressly advised, apparently incorrectly, by reputable specialist accountants who had prepared her tax return that she only had to pay a lower amount. In that case, it was found (at para. 8(p)) that the appellant had “relied on [her accountants] implicitly as supposed specialists in [a] difficult and complicated area of tax law in which she had understood them to be specialists”. It was further found in that case (at para. 8(q)) that as the appellant “did not have the specialist knowledge and expertise herself she employed and relied upon persons whom she reasonably believed to have such specialist knowledge and expertise”.

16. The Tribunal accepts that in cases where highly specialised advice is required, a taxpayer may have no choice but to rely on the advice of a specialist. However, in cases where no specialist advice is required, the Tribunal does not consider that a taxpayer can be absolved of personal responsibility to pay taxes on time through incorrect advice received by a specialist.

17. The Tribunal considers that in general, preparation of P35 returns is something that does not require specialist tax advice and is generally capable of being done by any lay employer. It certainly does not require any specialist tax expertise to check whether or not a P35 return has or has not in fact been submitted.

18. The Tribunal considers that the obligation to ensure that the return is filed on time is on the Appellant. If the Appellant uses an agent, the Appellant is in general under an obligation to ensure that the agent files the return on time. Failure of the agent to meet its obligations to the Appellant might entitle the Appellant to some recourse against the agent, but in the Tribunal’s view reliance on a third party such as an accountant cannot relieve the Appellant of its own obligation to file the P35 on time. The Tribunal does not accept that the bare fact that responsibility had been entrusted by the appellant to a third party of itself amounts to a reasonable excuse.

19. The Tribunal finds that the failure to submit the return on time was a mistake that would not have been made with due diligence, and therefore find that the Appellant’s claimed reliance on the payroll agent does not amount to a “reasonable excuse”.

20. Under the applicable legislation, the Tribunal does not have the power to mitigate penalties on grounds of an Appellant’s long and unblemished tax record. The Tribunal finds that it is immaterial whether or not HMRC have suffered loss as a result of the late payment. The legislation provided for a penalty for late payment, rather than compensation to HMRC for losses suffered as a result of late payment. The absence of malice, or the fact that the Appellant has learnt its lesson, is not of itself a reasonable excuse. The Tribunal does not accept that it is an abuse of power for HMRC to continue to apply the penalty.

21. The Tribunal finds that the Appellant has advanced no other circumstances that would amount to a “reasonable excuse” for late filing under s.118(2) of the TMA.