United Kingdom VAT & Duties Tribunals Decisions

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Cite as: [2008] UKVAT V20747

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Kevin Mooney v Revenue & Customs [2008] UKVAT V20747 (29 July 2008)

VAT _ Notice of Appeal against Notice of Assessment – issued late – prima facie out of time – application to strike out – reciprocal application to extend time – absence of good reason shown for late issue of notice of appeal – time not extended – strike out application granted – costs thrown away in respect of an abortive previous hearing

BELFAST TRIBUNAL CENTRE

KEVIN MOONEY Appellants

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Alistair Devlin (Chairman)

Sitting in public in Belfast on 30 April 2008

For the Appellant Dr. Maurice Laverty of D M L Turgot, Accountants, Coleraine

For the Respondents Mr. Bernard Haley

DECISION

This matter comes before the Tribunal in the form of an application initiated on the part of the Respondents to have the Notice of Appeal served herein struck out, as being out of time, and also in the form of a reciprocal application on the part of the Appellant to have time extended. The strike out application was initially listed before the Tribunal on 2 October 2007. However, neither the Appellant nor any representative attended before the Tribunal on that date, and the matter was adjourned until 28 April 2008, when the Appellant's representative was in attendance. Costs of the abortive hearing previously scheduled for 2 October 2007 had been reserved. On 28 April 2008, the Tribunal further adjourned the matter until 30 April 2008 so as to enable certain outstanding matters to be clarified.

It was accepted on behalf o the Appellant that the particular Assessment against which this appeal was directed was a Notice of Assessment issued by the Respondents and dated 8 March 2006 in the sum of £10,844.00. It was further accepted on behalf of the Appellant that the appeal against that Notice of Assessment had been initiated on foot of a Notice of Appeal dated 29 march 2007. The Notice of Appeal incorrectly identified the amount in dispute as being £16,318.92 rather than £10,844 and went on to set out the grounds for appeal in the following terms:

"An assessment which was raised by means of an economic exercise by a Revenue Officer was not correct. We have requested computations to explain the amount payable but HMCE have never provided them that we see how the assessment was reached."

The Notice of Appeal sought an extension of time, and was signed on behalf of the Appellant by Dr. M Laverty, the Appellant's Accountant.

On 2 October 2007, the Tribunal listed for determination an application on the part of the Respondents for the appeal to be struck out, and an application on the part of the Appellant to have time for the lodging of the appeal extended. Neither the Appellant nor his representative attended at that hearing, although the Tribunal did receive a handwritten application from the Appellant's representative dated 2 October 2007 couched in the following terms:

"You have requested me to confirm in writing that I am unable to attend this morning's hearing in Belfast. Unfortunately I had to return home due to a severe sore throat. Can I request the meeting be adjourned. Thanking you in anticipation."

On 2 October 2007 counsel for the Respondents was in attendance. The Tribunal on that date did adjourn both reciprocal applications, but on the application of counsel for the Respondents the Tribunal also directed as follows; firstly that the costs of that day's hearing were to be reserved, and secondly that within seven days the Appellant's representative was to serve upon the Tribunal Office at Manchester a medical report or other medical evidence to explain the basis for his non attendance on that day.

The matter came back before the Tribunal on 30 April. Dr. Laverty was in attendance. At this hearing, it was accepted on behalf of the Appellant that the particular Assessment against which this appeal was directed was a Notice of Assessment issued by the Respondents and dated 8 March 2006 in the sum of £10,844.00. It was further accepted on behalf of the Appellant that the appeal against that Notice of Assessment had been initiated on foot of a Notice dated 29 March 2007. The Notice of Appeal had accordingly been lodged substantially out of time.

When the Tribunal made enquiry from Dr. Laverty as to why the Notice of Appeal had indeed been issued substantially out of time, and as to why time should be extended, no clear grounds were advanced. Dr. Laverty did claim that he had in his possession a document which he said established that the Respondents owed his client a substantial sum. The inference from this, so far as the Tribunal could assess it, appeared to be that the contents of this document would provide some justification or explanation as to why the appeal had been issued late, and a basis for the extension of time sought. No other cogent explanation for the late appeal was advanced.

A copy of the document in question was handed to the Tribunal. It turned out to be a VAT 652 form relating to the Voluntary Disclosure of Errors on VAT Returns. The copy form in question was dated 30 January 2007, and it appears to be signed by the Appellant personally. The form gave a brief description of the error[s] being relied upon in the following terms:

"Monies written on Cheques payable to HMRC Customs & Excise. Misappropriated by former agent. Debt still left in my name."

The Tribunal does not consider that the contents of the copy VAT 652 form handed up to it by Dr. Laverty provide any explanation as to why the Notice of Appeal should have been issued late by the Appellant, nor does it or its contents provide any basis for the extension of time sought. The Tribunal accordingly refuses the application brought on the part of the Appellant to have time extended for the issuing of the Notice of Appeal herein, and in addition grants the application initiated on the part of the Respondents to have the Notice of Appeal served herein struck out as being out of time.

The Tribunal then sought to address the issue of the costs of the abortive hearing previously scheduled for 2 October 2007. On that date, neither the Appellant not any representative attended before the Tribunal. Medical grounds had been relied upon. Costs of the abortive hearing previously scheduled for 2 October 2007 had been reserved. The Tribunal had made a direction released to the parties on 2 October 2007 that within seven days of that date the Appellant's representative was to serve upon the Tribunal Office at Manchester a medical report or other medical evidence to explain the basis for the non attendance on 2 October 2007. Dr. Laverty was asked to confirm that the requirements of this direction had been duly attended to, but was unable to give such confirmation. The Tribunal accordingly awards costs against the Appellant in respective of the abortive hearing previously scheduled for 2 October 2007 as costs thrown away.

MAN/2008/0083

Alistair Devlin

CHAIRMAN

Release Date: 29 July 2008