Case: Computer generated reports not conclusive evidence of notice served

Released 9 August 2018

[2018] UKFTT 0373 (TC)

Judge Barbara Mosedale

Decision released 6 July 2018

Late filing penalties – Daily penalties – TMA 1970, s. 8 - Symes [2018] TC 06320.

Chattun [2018] TC 06587

Summary

HMRC refused to accept the Appeals out of time. The hearing was of the appellant’s application for permission to lodge the Appeals out of time.

The point of consideration was whether the Appellant had received penalty notices. If she had not received them, the late appeals could be explained and would have a defence to liability.

The Appellant had changed accountants early 2017. The new accountant informed the Appellant should have registered for self-assessment when she set up her company. The Appellant had not received any income from the company. The accountant had telephoned HMRC on 12 January 2017 and was informed that both a unique taxpayer reference number and deadline for submission of tax returns would be sent to her.

Blank tax returns are notices to file tax returns within TMA 1970, s. 8. If the taxpayer does not receive a notice to file for a tax year, the taxpayer is not liable to return it and cannot be penalised for not doing so; if the taxpayer does not receive the penalty notices, they are invalid. And she is not liable for the daily penalties unless in addition she received the daily penalties warning letters. The Appellant contended that she did not receive anything from HMRC until the statement of account in late 2017: she did not receive the penalty notices or the daily penalty warnings.

HMRC’s systems indicated all the letters had been sent.

The Appellant was a credible witness. Phone conversations proved a desire to regularise her tax position. The Appellant was also ware that submitting the returns would not trigger any tax liability.

The Tribunal found that the outcome depended on the burden of proof and HMRC had not proven that the notices to file, daily penalty warning letters, or penalty notices were served. The Appeal was allowed, and penalties discharged.

Comment

The case follows others that identified HMRC computer generated reports are not necessarily enough to establish a notice was served. The credibility of the Witness inevitably helped in this case.

For further guidance on appeals and dispute resolution, see Direct Tax Reporter at ¶188-800.

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