United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2007/E01016.html
Cite as: [2007] UKVAT(Excise) E1016, [2007] UKVAT(Excise) E01016

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Syed Assef Abbas v Revenue & Customs [2007] UKVAT(Excise) E01016 (02 February 2007)

E01016

APPEAL — application appeal not be entertained — appeal seven months out of time — discretion under Rule 19 — no — HMRC prejudiced — appeal dismissed

LONDON TRIBUNAL CENTRE LON/2006/8089

SYED ASSEF ABBAS Appellant

- and -

THE COMMISSIONERS FOR HER MAJESTY'S

REVENUE AND CUSTOMS Respondents

Tribunal: ADRIAN SHIPWRIGHT (Chairman)

Sitting in private in London on 23 January 2007

Mr P McGhee, Counsel, for the Appellant

Mr S Singh, Counsel, instructed by the Acting Solicitor for HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2007


 


DECISION

1. This decision concerns the Respondent's ("HMRC") application for the Tribunal not to exercise its discretion to allow the appeal to be entertained under Rule 19 of the Tribunal Rules.
2. The relevant factual information before me was as follows:

(1) The Appellant's car was seized on 9 November 2005.

(2) The Appellant wrote to HMRC on 9 November appealing against the legality of the seizure and asking for HMRC to consider returning the car. He filled out both parts A and B of the relevant form which said,

"Complete part A and B if you wish to follow the two entirely separate appeal routes at the same time… Decision about returning things can subsequently be reviewed and appealed to the Tribunal."

(3) HMRC asked the Appellant to attend an interview by letter dated 28 November 2005. The interview took place on 5 December 2005. HMRC decided and informed the Appellant by letter of that date not to return the car. The letter informed the Appellant that the decision could be reviewed "by an impartial Review Officer" by writing to the particular address within 45 days.

(4) The Appellant asked, in effect, for a review on 14 January 2006 within the period.

(5) The Review Decision upholding the decision not to restore the car was communicated to the Appellant on 23 February 2006 in an eight page letter. This letter said in the concluding paragraph:

"appeal against my decision. If you wish to contests my decision you may now within 30 days of the date of this letter, lodge an appeal with a VAT and Duties Tribunal that is independent of HM Revenue and Customs. An appeal should be made on the appropriate forms, available with an explanatory leaflet from a Tribunal Centre and should include a copy of this letter. The Tribunal Centre for your area is…"

(6) On 13 October 2006 solicitors for the Appellant wrote to the Tribunal enclosing a Notice of Appeal. It was said in this letter:

"It is conceded that this application for restoration [ie this appeal] is outside the 30 day limit from the finding of the Reviewing Officer and therefore an application is made for leave to make this appeal out of time pursuant Rule 19 of the Value Added Tax Tribunals [sic]".

The letter continued:

"We understand the power of the court to grant leave is, as it thinks fit. The reason for the late application is that the Defendant who was originally un-represented (the Appellant) did not appreciate the difference between condemnation and restoration proceedings. In fact, the Appellant held condemnation proceedings at Dover Magistrates' Court on 1 September, and withdrew when represented by Counsel who gave him advice for the first time that he required restoration of the vehicle, rather than the condemnation order. It is for this reason that the appeal is out of time".

3. I was also told that there had been illness and the death of a family member in May of that year, which also accounted for the delay. It was after this in June that the Appellant sought advice from solicitors. It may be that the solicitors were not as specialist in this as in other areas. They advised using the condemnation route.
4. It was argued forcibly on behalf of the Appellant that he was not a man who was causing trouble. He had done the right thing when he had received the right advice by seeking to make application for the restoration of the car. He had relied on the earlier advice and HMRC would not be prejudiced by allowing the appeal.
5. It was argued by Mr Singh for HMRC that:

(1) The Appellant knew the difference between the condemnation and restoration routes. He had filled out parts A and B of the relevant form in November 2005.

(2) Even if he did not know the difference, the review letter told him that he had 30 days within which to make the appeal. The review letter was dated 23 March 2006, such that the appeal should have been filed by 25 March 2006.

(3) There was no explanation for the seven months' delay in making the restoration appeal. Reliance on legal advice and a bereavement did not explain the seven month delay.

(4) There would be prejudice to HMRC if taxpayers could appeal seven months out of time with no rhyme or reason.

6. Whilst I have much sympathy with the Appellant's position, as regards the complications of the condemnation and restoration procedures I have to operate within the Tribunal Rules. The law sets down a period within which an appeal must be brought. The Tribunal Rules allow discretion for an appeal to be brought out of time. However, the onus is on those seeking to bring the appeal to show lack of prejudice and why for the discretion be exercised in their favour. Here there is a delay of seven months. The reason for the delay is given as a family bereavement in May and the advice received after that. This does not explain why the appeal was not brought by 25 March 2006.
7. In those circumstances no good reason for failing to bring the appeal in time has been shown. This is further reinforced by the signing of both parts of the form in November 2005, the reminder about appeals on that form and the reminder at the end of the decision letter in February that there were thirty days to appeal. I consider that there would be prejudice to HMRC if the appeal were entertained out of time when a seven month period is involved with no real explanation. This is particularly so when the Appellant has relied on legal advice. Both taxpayers and HMRC need certainty. Some real reason to displace this is needed and that HMRC would not be prejudiced. It has not been shown to be the case here.
8. In those circumstances I direct that the appeal be not entertained out of time and that the appeal be dismissed.
9. I make no order as to costs.

ADRIAN SHIPWRIGHT

CHAIRMAN

RELEASE DATE: 2 February 2007

LON/2006/8089