First-tier Tribunal (Tax)

 

           TC06836

 

Appeal number: TC/2017/07345

 

Income tax - fixed and daily penalties for late filing of self-assessment return - Appellant paid assessment (outstanding NIC) and assumed that there was no longer any need for a return - whether reasonable excuse - no - appeal dismissed

 

 

FIRST-TIER TRIBUNAL

 

TAX

 

 

                                         NICHOLAS RAMPTON                                     Appellant

 

 

                                                                      - and -

 

 

                               THE COMMISSIONERS FOR HER MAJESTY’S

                                                  REVENUE AND CUSTOMS                            Respondents

 

 

                        TRIBUNAL: JUDGE MICHAEL CONNELL

                                                             

 

The Tribunal determined the appeal on 18 November 2018 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 21 September 2017, and HMRC's Statement of Case received by the Tribunal on 14  November 2017 with enclosures. The Tribunal wrote to the Appellant on 18 November 2017 stating that if he wished to reply to HMRC's Statement of Case he should do so within 30 days. The Appellant acknowledged the Statement of Case on 6 January 2018, only for the purpose of asking for confirmation of the appeal process and that there were no costs implications.

 

© CROWN COPYRIGHT 2018

 

 

DECISION

 

1. This is an appeal by Nicholas Rampton (‘the Appellant’) against penalties totalling £280 imposed by the Respondents (‘HMRC’) under Paragraphs 3 and 4 of Schedule 55 Finance Act 2009 for the late filing by the Appellant of his self-assessment (‘SA’) tax return for the tax year ending 5 April 2016.

2. The penalties for late filing of a return can be summarised as follows:

                                  i.           A penalty of £100 is imposed under Paragraph 3 of Schedule 55 Finance Act (‘FA’) 2009 for the late filing of the Individual Tax Return for the year ending 5 April 2016.

                                ii.           If after a period of 3 months beginning with the penalty date the return remains outstanding, daily penalties up to a total of £900 are imposed under Paragraph 4 of Schedule 55 FA 2009 for the year ending 5 April 2016.

                              iii.           If after a period of 6 months beginning with the penalty date the return remains outstanding, a penalty of £300 is imposed under Paragraph 5 of Schedule 55 FA 2009 for the year ending 5 April 2016.

                              iv.           If after a period of 12 months beginning with the penalty date the return remains outstanding, a penalty £300 is imposed under Paragraph 6 of Schedule 55 FA 2009 for the year ending 5 April 2016.

3.    Penalties of £100 and £180 were imposed under (i) and (ii) above.

4.    The Appellant’s appeal is against the £180 penalty.

Filing date and Penalty date

5. Under s 8(1D) TMA 1970 a non-electronic return must be filed by 31 October 2015 and an electronic return by 31 January 2016. The ‘penalty date’ is defined at Paragraph 1(4) Schedule 55 FA 2009 and is the date after the filing date.

6. A late filing penalty is chargeable where a taxpayer is late in filing their Individual Tax return.

Reasonable excuse

7. Paragraph 23 of Schedule 55 FA 2009, provides that a penalty does not arise in relation to a failure to make a return if the person satisfies HMRC (or on appeal, a Tribunal) that they had a reasonable excuse for the failure and they put right the failure without unreasonable delay after the excuse ceased.

8. The law specifies two situations that are not reasonable excuse:

(a)        An insufficiency of funds, unless attributable to events outside the Appellant’s control, and

(b)        Reliance on another person to do anything, unless the person took reasonable care to avoid the failure.

9. There is no statutory definition of “reasonable excuse”. Whether or not a person had a reasonable excuse is an objective test and “is a matter to be considered in the light of all the circumstances of the particular case” (Rowland V HMRC (2006) STC (SCD) 536 at paragraph 18).

10. HMRC’s view is that the actions of the taxpayer should be considered from the perspective of a prudent person, exercising reasonable foresight and due diligence, having proper regard for their responsibilities under the Tax Acts. The decision depends upon the particular circumstances in which the failure occurred and the particular circumstances and abilities of the person who failed to file their return on time. The test is to determine what a reasonable taxpayer, in the position of the taxpayer, would have done in those circumstances and by reference to that test to determine whether the conduct of the taxpayer can be regarded as conforming to that standard.

11.  If there is a reasonable excuse it must exist throughout the failure period.

        The background facts

12. The notice to file for the year ending 5 April 2016 was issued to the Appellant on 6 April 2016. HMRC’s automated system would use the address current at that time. HMRC’s computer records show Mr Rampton’s address as 38 Whitley Ave, Follaton, Totnes, Devon TQ9 5FQ.

13. The filing date was 31 October 2016 for a non-electronic return or 31 January 2017 for an electronic return.

14. As the return was not received by the filing date, HMRC issued a notice of penalty assessment on or around 14 February 2016 in the amount of £100.

15. The Appellant’s electronic return for the year 2016 was received on 18 May 2017 and was processed on 19 May 2017.

16. As the return had not been received three months after the penalty date, HMRC issued a notice of daily penalty assessment on or around 23 May 2017  in the amount of £180, calculated at £10 per day for 18 days. An SA372-30 notice for Daily Penalties was issued to the address held which is the same as the first penalty.

17. On 27 March 2017 the Appellant appealed to HMRC against the penalties, on the grounds that his online tax assessment was completed before January 31 2017.

18. HMRC sent the Appellant decision letter on 12 May 2017 rejecting his appeal and offering a review.

19. On 23 May 2017 The Appellant requested a review of HMRC’s decision, saying:

 “As you can see I paid my tax bill on the 18 January this year. I assumed that you wouldn’t have asked for a payment if the payment wasn’t finalised i.e. my tax assessment had been received by you and accepted. I enclose the proof of my payment. I finished the 100% submission once you pointed it out in your last letter.”

20. HMRC carried out a review and issued their review conclusion on 18 August 2017. The outcome of the review was that HMRC’s decision should be upheld.

21. On 21 September 2017 the Appellant notified his appeal to the Tribunal, giving his grounds as follows:

“I attempted to file my tax online on the 18 January 2017. On that date your website calculated that I owed £141.60 tax and allowed me to pay it directly there and then.

After I was later informed that I no longer owed money I rang the self-assessment office to question this. The man I spoke to suggested that there may have been a change in the NI calculation system which may have accounted for the difference in figures.

I assumed that my tax assessment had been completed when I paid my bill, as I assumed I wouldn’t have been asked to pay otherwise as the figure wouldn't have been finalised.

I feel it unfair that HMRC have come to the conclusion that they can’t reduce my penalty, when you are part judging me on what your system calculated my tax liability after 18/01/2017 and not on 18/01/2017 when I paid it.”

Relevant statutory provisions

Taxes Management Act 1970

Section 8 - Personal return - provides as follows:

(1) For the purpose of establishing the amounts in which a person is chargeable to income tax and capital gains tax for a year of assessment, [and the amount payable by him by way of income tax for that year,] he may be required by a notice given to him by an officer of the Board-

a)      to make and deliver to the officer, on or before the day mentioned in subsection (1A) below, a return containing such information as may, reasonably be required in pursuance of the notice, and

b)      to deliver with the return such accounts, statements and documents, relating to information contained in the return, as may reasonably be so required.

(1A) The day referred to in subsection (1) above is-

(a) the 31st January next following the year of assessment, or

(b) where the notice under this section is given after the 31st October next following the year, the last j day of the period of three months beginning with the day on which the notice is given]

(1AA) For the purposes of subsection (1) above-

(a)        the amounts in which a person is chargeable to income tax and capital gains tax are net amounts, that is to say, amounts which take into account any relief or allowance a claim for which is included in the return; and

(b)        the amount payable by a person by way of income tax is the difference between the amount in which he is chargeable to income tax and the aggregate amount of any income tax deducted at source and any tax credits to which [section 397(1) [or [397A(1)] of ITTOIA 2005] applies.]

(1B) In the case of a person who carries on a trade, profession, or business in partnership with one or more other persons, a return under this section shall include each amount which, in any relevant statement, is stated to be equal to his share of any income, [loss, tax, credit] or charge for the period in respect of which the statement is made.

(1C) In subsection (1B) above "relevant statement" means a statement which, as respects the partnership, falls to be made under section 12AB of this Act for a period which includes, or includes any part of, the year of assessment or its basis period.

(1D) A return under this section for a year of assessment (Year 1) must be delivered-

(a)   in the case of a non-electronic return, on or before 31st October in Year 2, and

(b)   in the case of an electronic return, on or before 31st January in Year 2.

(1E) But subsection (1D) is subject to the following two exceptions.

(1F) Exception 1 is that if a notice in respect of Year 1 is given after 31st July in Year 2 (but on or before 31st October), a return must be delivered-

(a)   during the period of 3 months beginning with the date of the notice (for a non-electronic return), or

(b)   on or before 31st January (for an electronic return).

(1G) Exception 2 is that if a notice in respect of Year 1 is given after 31st October in Year 2, a return (whether electronic or not) must be delivered during the period of 3 months beginning with the date of the notice.

(1H) The Commissioners-

(a)        shall prescribe what constitutes an electronic return, and

(b)        may make different provision for different cases or circumstances.

(2) Every return under this section shall include a declaration by the person making the return to the effect that the return is to the best of his knowledge correct and complete.

(3) A notice under this section may require different information, accounts and statements for different periods or in relation to different descriptions of source of income.

(4) Notices under this section may require different information, accounts and statements in relation to different descriptions of person.

(4A)     Subsection (4B) applies if a notice under this section is given to a person within section 8ZA of this Act (certain persons employed etc. by person not resident in United Kingdom who perform their duties for UK clients).

(4B)     The notice may require a return of the person's income to include particulars of any general earnings (see section 7(3) of ITEPA 2003) paid to the person.

(5) In this section and sections 8A, 9 and 12AA of this Act, any reference to income tax deducted at source is a reference to income tax deducted or treated as deducted from any income or treated as paid on any income.

Schedule 55 Finance Act 2009:

22.  The penalties at issue in this appeal are imposed by Schedule 55 FA 2009.

23.  Paragraph 1 (4) states that the ‘penalty date’ is the date after the ‘filing date’

24.   Paragraph 3 of Schedule 55 imposes a fixed £100 penalty if a self-assessment return is submitted late.

25.   Paragraph 4 of Schedule 55 provides for daily penalties to accrue where a return is more than three months late as follows:

     (1)      P is liable to a penalty under this paragraph if (and only if)--

(a)       P's failure continues after the end of the period of 3 months beginning with the penalty date,

(b)      HMRC decide that such a penalty should be payable, and

(c)       HMRC give notice to P specifying the date from which the penalty is payable.

(2)      The penalty under this paragraph is £10 for each day that the failure continues during the period of 90 days beginning with the date specified in the notice given under sub-paragraph (1)(c).

     (3)     The date specified in the notice under sub-paragraph (1)(c)--

(a)     may be earlier than the date on which the notice is given, but

(b)     may not be earlier than the end of the period mentioned in sub-paragraph (1)(a).

 

26.  Paragraph 5 of Schedule 55 provides for further penalties to accrue when a return is more than 6 months late as follows:

(1)     P is liable to a penalty under this paragraph if (and only if) P's failure continues after the end of the period of 6 months beginning with the penalty date.

     (2)     The penalty under this paragraph is the greater of--

(a)     5% of any liability to tax which would have been shown in the return in question, and

     (b)     £300.

 

27.  Paragraph 23 of Schedule 55 contains a defence of “reasonable excuse” as follows:

 

 (1)     Liability to a penalty under any paragraph of this Schedule does not arise in relation to a failure to make a return if P satisfies HMRC or (on appeal) the First-tier Tribunal or Upper Tribunal that there is a reasonable excuse for the failure.

     (2)     For the purposes of sub-paragraph (1)--

(a)   an insufficiency of funds is not a reasonable excuse, unless attributable to events outside P's control,

(b)     where P relies on any other person to do anything, that is not a reasonable excuse unless P took reasonable care to avoid the failure, and

(c)     where P had a reasonable excuse for the failure but the excuse has ceased, P is to be treated as having continued to have the excuse if the failure is remedied without unreasonable delay after the excuse ceased

 

28.  Paragraph 16 of Schedule 55 gives HMRC power to reduce penalties owing to the presence of “special circumstances” as follows:

 

(1)     If HMRC think it right because of special circumstances, they may reduce a penalty under any para-graph of this Schedule.

     (2)     In sub-paragraph (1) "special circumstances" does not include--

     (a)     ability to pay, or

(b)     the fact that a potential loss of revenue from one taxpayer is balanced by a potential over-payment by another.

     (3)     In sub-paragraph (1) the reference to reducing a penalty includes a reference to-

(a)     staying a penalty, and

(b)     agreeing a compromise in relation to proceedings for a penalty.

 

29.  Paragraph 20 of Schedule 55 gives a taxpayer a right of appeal to the Tribunal and paragraph 22 of Schedule 55 sets out the scope of the Tribunal’s jurisdiction on such an appeal. In particular, the Tribunal has only a limited jurisdiction on the question of “special circumstances” as set out below:

 

(1)     On an appeal under paragraph 20(1) that is notified to the tribunal, the tribunal may affirm or cancel HMRC's decision.

(2)     On an appeal under paragraph 20(2) that is notified to the tribunal, the tribunal may--

     (a)     affirm HMRC's decision, or

(b)    substitute for HMRC's decision another decision that HMRC had power to make.

(3)     If the tribunal substitutes its decision for HMRC's, the tribunal may rely on paragraph 16--

(a)  to the same extent as HMRC (which may mean applying the same percentage reduction as HMRC to a different starting point), or

(b)     to a different extent, but only if the tribunal thinks that HMRC's decision in respect of the application of paragraph 16 was flawed.

(4)     In sub-paragraph (3)(b) "flawed" means flawed when considered in the light of the principles applicable in proceedings for judicial review.

 

Appellant’s case

30. The Appellant’s grounds of appeal are as set out in his Notice of Appeal to the Tribunal.

       HMRC’s Case

31. HMRC set up a SA record for the Appellant when the SA tax regime was introduced in 1996. The Appellant completed annual self-assessment returns to claim tax repayments on investment income taxed at source. The Appellant declared earnings as a self-employed carpenter in 2004 and later as a self-employed therapist and a carer.

32.  The Appellant has not appealed against the Late Filing Fixed Penalty of £100.

33. In his appeal to the Tribunal dated 21 September 2017,  The Appellant states he attempted to file his 2015-16 return online on 18 January 2017. HMRC’s SA account for individuals provides additional information that the individual may find useful when completing their SA return. Mr Rampton’s SA account stated that for 2015-16, the Appellant may be liable to pay Class 2 National Insurance contributions (NIC) - £145.60.

34. Self-employed individuals make Class 2 NIC to qualify for benefits such as the State Pension. For 2015-16, if an individual’s taxable profits are £5,965 or more, he pays Class 2 NIC (£2.80 a week). If profits are less than £5,965 or he made a loss, he can pay Class 2 NICs voluntarily to protect his State Pension and certain benefits. The self-employment (short) notes 2016 available on HMRC’s website state that if an individual wants to pay Class 2 NICs voluntarily he needs to put an ‘X’ in box 36 on the self-employment pages of his return.

35. The Appellant entered Class 2 NIC due of £145.60 at box 4.1 of his 2015-16 return, but as the profit of £2,169 calculated by the Appellant was below the NIC threshold of £5,965, Class 2 NIC was not charged. If the Appellant had wanted to pay Class 2 NIC voluntarily, he should have marked box 36 on his return.

36. On 18 January 2017 the Appellant paid over £141.60 to HMRC as he had calculated this amount was due. HMRC had not requested any payment of tax from him for 2015-16. The payment of £141.60 was credited to his SA account on 18 January 2017. Part of this payment was used to pay the late filing penalty of £100 and the balance of £41.60 was left on his account unallocated as there was no tax charged to set it against.

37. In his appeal to the Tribunal, the Appellant states that he believes HMRC are being unfair as they are partly judging him on what their system calculated was due after 18 January 2017 and not on 18 January 2017 when he paid it; at this point, the Appellant had not submitted his return to HMRC. In his appeal dated 23 May 2017 the Appellant confirms that he finished the remainder of his 2015-16 return after HMRC had pointed out to him in their letter dated 12 May 2017 that they hadn’t yet received his return.

38. The Appellant believes HMRC are being unfair in not reducing the penalty, as he paid what he believed was due on 18 January 2017. The penalty notice sent to the Appellant on 15 February 2017 states “Your tax return for the year ended 5 April 2016 was not sent in on time. Because of this a penalty of £100 is payable”.

39. HMRC’s letter dated 12 May 2017 is headed “Appeal against the penalty for sending your Self-Assessment tax return in late for the 2015-2016 tax year”. The Appellant has not addressed this point in his appeal and has not given any reason why he delayed submitting his return until 18 May 2017.

40. Where a return is filed after the relevant deadline a penalty is charged. The later a return is received, the more penalties are charged. This information was clearly shown on the 2015-16 notice to file issued to the Appellant on 6 April 2016. The address the notice was sent to was the Appellant’s address at the time.

Special Reduction

41. Paragraph 16(1) of Schedule 55 allows HMRC to reduce a penalty if they think it is right because of special circumstances. “Special circumstances” is undefined save that, under paragraph 16(2), it does not include ability to pay, or the fact that a potential loss of revenue from one taxpayer is balanced by a potential overpayment by another.

42. In other contexts “special” has been held to mean ‘exceptional, abnormal or unusual’ (Crabtree v Hinchcliffe [1971] 3 All ER 967), or ‘something out of the ordinary run of events’ (Clarks of Hove Ltd v Bakers' Union [1979] 1 All ER 152). The special circumstances must also apply to the particular individual and not be general circumstances that apply to many taxpayers by virtue of the penalty legislation (David Collis [2011] UKFTT 588 (TC), paragraph 40).

43. Where a person appeals against the amount of a penalty, paragraph 22(2) and (3) of Schedule 55, FA 2009 provide the Tribunal with the power to substitute HMRC’s decision with another decision that HMRC had the power to make. The Tribunal may rely on paragraph 16 (Special Reduction) but only if they think HMRC’s decision was ‘flawed when considered in the light of the principles applicable in proceedings for judicial review’.

44. HMRC submit that its decision not to reduce the penalties under paragraph 16 was not flawed but, if the Tribunal disagrees, HMRC further submit that there are no special circumstances which would require the Tribunal to reduce the penalties.

Conclusion

45. Late filing penalties for the year ended 5 April 2016 are due in accordance with Schedule 55 FA 2009, even if a customer has no tax to pay, has already paid all the tax due or is due a refund.

46. This appeal is not concerned with specialist or obscure areas of tax law. It is concerned with the ordinary every day responsibilities of the Appellant to ensure his 2015-16 tax return was filed by the legislative date and payment made on time.

47. Self-assessment places a greater degree of responsibility on customers for their own tax affairs. This includes ensuring that HMRC receive payment of the correct amount of tax and National Insurance at the correct time. The tax guidance and HMRC’s website give plenty of warning about filing and payment deadlines. It is the customer’s responsibility to make sure they meet the deadlines.

48. Penalties are in place to promote efficient operation of the taxation system and are intended as a measure of fairness, so that customers who file late do not gain any advantage over those who file on time.

49. The amount of the penalties charged is set within the legislation. HMRC has no discretion over the amount charged and must act in accordance with the legislation. By not applying legislation and as such not to have imposed the penalty would mean that HMRC was not adhering to its own legal obligations.

50. When a person appeals against a penalty they are required to have a reasonable excuse which existed for the whole period of the default. There is no definition in law of reasonable excuse, which is a matter to be considered in the light of all the circumstances of the particular case.

51.  In considering whether the Appellant has a reasonable excuse for the default it is necessary to consider his actions from the perspective of a prudent tax-payer exercising reasonable foresight and due diligence and having proper regard for their responsibilities provided by legislation. A reasonable excuse is normally an unexpected or unusual event, either unforeseeable or beyond the person’s control, which prevents him or her from complying with an obligation which otherwise would have been complied with.

52. The Appellant had successfully filed previous tax returns and should have been aware of the filing procedures and deadlines. His return was not filed until 18 May 2017. The Appellant’s return was filed three and a half months late despite him having received reminders and the £100 penalty notice in February 2017.   There may have been an element of confusion in the Appellant’s mind as to whether he was obliged if file the return but the reminder and penalty notice should have alerted him to the fact that a return was due.

53. The late filing penalties have been charged in accordance with legislation and there is no reasonable excuse for the Appellant’s failure to file his tax return on time.

54. I find that there are no special circumstances which would allow the penalty to be reduced under Special Reduction regulations

55. The appeal is therefore dismissed and the late filing penalties totalling £930 are confirmed.

56. 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 CONNELL

TRIBUNAL JUDGE

 

RELEASE DATE: 23 November 2018