United Kingdom VAT & Duties Tribunals Decisions

Millennium Nails Ltd v Revenue & Customs [2006] UKVAT V19900 (20 November 2006)

19900

VALUE ADDED TAX — EC Sales List rendered after due date — penalty for late submission — Appellant's assertion that submitted on time — not support by any evidence — Appellant not represented at hearing — appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

MILLENNIUM NAILS LTD

Appellant

- and -

THE COMMISSIONERS FOR HER

MAJESTY'S REVENUE AND CUSTOMS

Respondents

Tribunal: Colin Bishopp (Chairman)

Roland Presho FCMA

Sitting in public in North Shields on 13 November 2006

The Appellant did not appear and was not represented

Charles Morgan, counsel, instructed by the Acting Solicitor for HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2006

DECISION

1. This is an appeal against the imposition by the Respondents on the Appellant of a penalty of £500 for its failure to render on time its E C Sales List for period 05/4, that is, the period from 1 October to 31 December 2005. The penalty is levied at a daily rate of £5 until the maximum possible, £500, is reached: see section 66 of the Value Added Tax Act 1994. The Appellant's case, as it is recorded in its notice of appeal, is that the list was sent to the Respondents in time, but was lost in the post.
2. The Appellant was not represented when the appeal was called on for hearing, while the Respondents were represented by Charles Morgan of counsel. He asked us to hear the appeal in the Appellant's absence, in accordance with rule 26 of the Value Added Tax Tribunals Rules 1986 (SI 1986/590) as amended. There was no evident reason why the Appellant was not represented and no application for a postponement had been received, while notice of the date, time and place of the hearing had been given in the usual way. We decided it was appropriate to hear the appeal in the Appellant's absence. If it wishes to have this decision set aside, it may apply for a direction to that effect within 14 days of the release of this decision.
3. Perusal of the documents supplied to us showed that the Appellant's list for the first quarter of 2005 (05/1) was received by the Respondents on 25 July 2005; it should have been submitted by 12 May 2005 (see Value Added Tax Regulations 1995 (SI 1995/2518) regulation 22(1)) and it was therefore a little more than two months late. In the meantime, on 11 July 2005, the Respondents sent to the Appellant a penalty liability notice warning it that if it did not submit the list by 25 July 2005 (which in the event it did) it would suffer a penalty, and that its late rendering of subsequent lists would likewise expose it to the imposition of penalties.
4. Despite that warning, the Appellant failed to submit its lists for the second and third quarters of 2005 but, for reasons Mr Morgan was unable to give us, no penalties were imposed. However, when the 05/4 list did not arrive, the Respondents did impose a penalty, though not until 7 June 2006, by which time the maximum of £500 had been reached. The return had still not been received by that date.
5. We can allow the appeal if we are satisfied either that the list was sent in a manner which the person submitting it could reasonably expect to result its timely arrival, or there is a reasonable excuse for his failure to submit it: see section 66 (7) of the 1994 Act. The second limb does not arise here. The obligation of satisfying us that the list was despatched on time lies on the Appellant. Unfortunately for the Appellant, mere assertion is not enough; there must be some reliable evidence on which we could make a finding of fact in its favour. The Appellant has produced nothing to support its assertion.
6. It follows that the appeal must be dismissed. Mr Morgan sought a direction for costs in the Respondents' favour on the grounds that the Appellant had not arranged to be represented at the hearing of the appeal. That application seemed to us to be entirely proper and we direct that the Appellant shall, in addition to the penalty, pay to the Respondents costs summarily assessed at £110.

Colin Bishopp

CHAIRMAN

Release Date: 20 November 2006

MAN/2006/467